International Association of Heat and Frost Insulators and Asbestos Workers

National Labor Relations Board - Board Decisions

Oct 31, 1962

139 N.L.R.B. 659 (N.L.R.B. 1962)

INT'L ASSN. OF HEAT AND FROST INSULATORS, ETC. 659
and specifically Christensen, on the basis of membership and/or financial standing
in Respondent Union.
8. Respondent Union has violated Section 8(b)(1)(A) and (2) by the following
additional conduct:
(a) Maintaining with B.T. Association and unaffiliated employers in commerce
within the Act, an exclusive hiring hall arrangement which: provides for conditions
of union security other than dues and initiation fees, thus exceeding the limits per-
mitted by Section 8(a)(3); prefers union members over nonmembers; prefers union
members with greater union seniority; requires an unlawful amount of service or
permit fees from nonmembers; and which was otherwise administered on the basis of
unlawfully disparate classifications.
(b) Refusing, on the basis of reform group activities, to refer Nagle to higher-
paying jobs with B.T. Association and unaffiliated employers in commerce with
whom it has exclusive hiring arrangements.
(c) Refusing, on the basis of union standing, to refer Christensen and Eichacker
to jobs with B.T. Association and unaffiliated employers with whom it has exclusive
hiring arrangements.
(d) Causing Peterson, on the basis of union and/or reform group considerations,
to lay off and not recall Batalias on the Greenport job and refusing to refer Batalias
to B.T. Association and unaffiliated employers in commerce with whom it has ex-
clusive hiring arrangements.
9. Respondent Union further violated Section 8(b)(1)(A) by threatening not to
refer Nagle, Christensen, and Wilkens to any employer including B.T. Association
and unaffiliated employers in commerce with whom it has exclusive hiring arrange-
ments, for reasons of union membership and/or reform group activities.
10. The foregoing unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
International Association of Heat and Frost Insulators and As-
bestos Workers and Local 125 , International Association of
1 xeat and Frost Insulators and Asbestos Workers and Insul-
Coustic Corporation . Case No. 10-CC-486. October 31, 1962
DECISION AND ORDER
On April 3, 1962, Trial Examiner Stanley Gilbert issued his Inter-
mediate report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Intermediate Report. Thereafter, the Respondents filed exceptions
to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, except insofar as they are inconsistent
with our Decision herein.
1. The Respondents except to the Trial Examiner's findings on the
ground, inter alia, that their sole objective was to obtain adherence
139 NLRB No. 51
6 7 2 010-6 3-v o f 13 9- 4 3
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Armstrong Corporation to the "subcontracting" and "preparation"
clauses in the collective-bargaining agreement covering the work done
at the Erlanger Hospital jobsite. Contrary to Respondents, we find
that their conduct demonstrates that an object of their action was to
boycott premolded insulating materials not manufactured by mem-
bers of the Union, rather than solely to protect their contractually
designated work at the jobsite.1
In August 1961, Sickles, president of Respondent International,
told Zeller, manager of Armstrong, that premolded fittings would not
be applied unless they carried the union label. In September 1961,
Sickles told March, president of Insul-Coustic, that only those fittings
having a decal to be furnished by the Union would be installed.2 As
further proof of the International's object, we take official notice of
our recent decision involving this Respondent in a similar situation?
Our findings there,4 together with its actions here, show a pattern and
policy of boycotting insulating material not produced by members
of the International.
2. We find, in agreement with the Trial Examiner, that Respondent
Local induced or encouraged Mclnturf, an employee of Armstrong,
in the course of his employment not to install premolded fittings pur-
chased from Insul-Coustic Corporation,5 or other nonunion manu-
IButchers ' Union Local 563, Amalgamated Meat Cutters Butcher Workmen of
North America , AFL-CIO [Huntington Meat Packing Company, d/b/a Oxford Meat Co.]
(Monarch Building Maintenance Co.), 134 NLRB 136, Retail Clerks Union Local 770,
Retail Cleik8 International Association , AFL-CIO ( United States Hardware and Paper
Company , et al ) v N L,If B , 296 F 2d 368 (C.A D C ).
9 Counsel for Respondent International stated during the hearing that the Union would
install premolded fittings manufactured by "someone in contractual relationship with
that Union under that agreement . . . The Trial Examiner construed this statement
as an admission by Respondents that they would permit the installation of molded fittings
bearing the union label . We do not rely on this interpretation in reaching our conclusion
herein
3 International Association of Heat and Frost Insulators and Asbestos Workers ( Speed-
Line Manufacturing Co., Inc. ), 137 NLRB 1410.
4 See particularly that portion of the Intermediate Report in that case setting forth
the minutes of a meeting of the general executive board of the International which were
circulated to all its locals and published in its Journal , to the effect that because of the
failure of some employers to abide by their contract "the labor in connection [with the
production of insulating material ] was not performed by employees represented by [the
International 's] local unions ;" and that union labels were therefore available to identify
work done "by our membership" away from the jobsite, and containing an instruction to
its locals to take "action to deal with any repetition of the practice " of subleting insula-
tion work
B General Drivers, Salesmen and Warehousemen 's Local No . 984, and Highway and
Local Moto) Freight Employees Local No 667 , both affiliated with International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America ( The Humko Co.,
Inc ), 121 NLRB 1414, and see , Truck Drivers and Helpers Local Union No. 728, Interna-
tional Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America,
AFL-CIO ( Genuine Parts Company), 119 NLRB 399, 408, enfd 265 F. 2d 439 (C A. 5).
In making his finding in this regard, the Tiial Examiner relied on certain hearsay testi-
mony of Holton, Armstrong' s construction superintendent , which was admitted over
Respondents ' objection They except to such use of this evidence. We construe this use
of the testimony by the Trial Examiner as an acceptance of the truth of the fact asserted
rather than merely evidence of the fact that the statement was made For the sole issue
before the Board is whether the Respondent in fact induced Mclnturf to refuse to handle
INT'T ASSN. OF HEAT AND FROST INSULATORS, ETC. 661
facturers, and threatened, coerced, and restrained Armstrong to cease
using premolded fittings purchased from Insul-Coustic or other non-
union manufacturers 6 all for the purpose of forcing Armstrong to
cease doing business with Insul-Coustic or any other manufacturer
not in contractual relationship with a local of Respondent Interna-
tional and whose product therefore did not carry the union label.
Such conduct violates Section 8(b) (4) (i) and (ii) (B) of the Act.
3. We further find, in agreement with the Trial Examiner, that
the Respondent International violated the same provisions of the Act
as found above ; its policy and conduct demonstrate that its efforts
were devoted to preventing the utilization of premolded fittings which
were not produced by union members.' The record clearly shows that
Potts was carrying out and applying this policy of the International.
Accordingly, his conduct is imputable to it.' Furthermore, Potts
testified that Sickles advised him not to install premolded fittings,
and Potts admittedly told Mclnturf that Sickles had told him (Potts)
to inform Dyer, Armstrong's branch manager, that premolded fittings
would not be applied on the job. In these circumstances, we find that
the International has participated in and counseled the Respondent
Local's violations and accordingly must share the responsibility for
them.'
the fittings , not whether Mcrnturf thought he had been induced. And a finding that
Mclnturf did not reach his decision Independently could only mean that in fact he had
been induced. We agree that for this purpose the reliance on this testimony was mis-
placed. The Ohio Associated Telephone Company, 91 NLRB 932, 934 . However, there
was competent evidence on which to base this finding . For example , Mclnturf told Holton
that "he couldn ' t install [ the fittings ] because he had been notified by his business agent
not to install them . . . Accordingly , on the basis of this testimony , as well as the
other evidence relied upon by the Trial Examiner , we agree with his conclusions that
Mclnturf ' s refusal was not a decision at which he arrived independently.
9 The testimony of Holton and Dyer, Armstrong 's branch manager, that Potts told each
of them that molded fittings would not be installed amply supports this conclusion.
Highway Truckdrivers and Helpers, Local No. 107 , International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America, Independent (Rise it Company,
Inc ), 130 NLRB 943, enfd. 300 F. 2d 317 (CA. 3). Building and Construction Trades
Council of Tampa and Vicinity, AFL-CIO, et at (Tampa Sand and Material Co.), 132
NLRB 1564, 1567.
'' Member Brown dissents from the finding that the International violated Section
8(b) (4) (1 ) ( B). In his view , there is no evidence that the International directed or in-
structed the local to tell Mclnturf not to install premolded fittings or that it otherwise
participated In this conduct . This finding , in Member Brown's opinion , rests on specula-
tion and unsupported inference , and he would accordingly dismiss this portion of the
complaint.
8 Local Union No. 929, United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, et at. ( The Mengel Company, et at.), 120 NLRB 1756, 1766.
See General Drivers, Salesmen and Warehousemen's Local No . 984, et al. (The Humko
Co., Inc ), supra, at 1419-1420; United Marine Division, Local 383, International Long-
shoremen's Association (Independent ), et al. ( New York Shipping Association ), 107 NLRB
686 Compare International Brotherhood of Electrical Workers, AFL-CIO, and Interna-
tional Brotherhood of Electrical Workers, Local 5, AFL-CIO ( Franklin Electric Construc-
tion Company, et al. ), 121 NLRB 143, 148. See also, Local 135, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , AFL-CIO (Capital
Paper Company and Consolidated Sales, Inc ), 117 NLRB 635, 645 ; United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, at at (Del-Mar Cabinet Company, Inc.),
121 NLRB 1117, 1118.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Since this case and the prior one involving Respondent Interna-
tional establish a pattern of illegal activity, we find, contrary to the
Respondents' contention, that a broad Order is warranted.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.10
10 The Appendix attached to the Intermediate Report is modified by deleting the words
60 days from the date hereof" In the next to last sentence of said notice and inserting in
its place, the words "60 consecutive days from the date of posting .. .
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
A charge having been filed on December 15, 1961, by Insul-Coustic Corporation
(hereinafter referred to as Insul) against Respondents International Association of
Heat and Frost Insulators and Asbestos Workers (hereinafter referred to as the
International) and Local 125 of said International (hereinafter referred to as the
Local), the complaint herein was issued on January 16, 1962, alleging that Re-
spondents engaged in unfair labor practices within the meaning of Section 8(b) (4) (i)
and (ii)(B) and Section 2(6) and (7) of the National Labor Relations Act, as
amended, 61 Stat. 136, 73 Stat. 519 (hereinafter referred to as the Act). Respond-
ents denied the allegations in the complaint imputing to them the commission of
unfair labor practices and also advanced certain affirmative defenses.
Pursuant to notice, a hearing was held on February 8, 1962, at Chattanooga,
Tennessee, before Trial Examiner Stanley Gilbert. All parties were represented
at the hearing by counsel. Except to a limited extent all parties waived oral argu-
ment at the close of the hearing. All parties filed briefs within the time designated
therefor.
Upon the entire record in the case, and from my observation of the witnesses who
appeared before me, I make the following:
FINDINGS OF FACT
I. THE COMPANIES INVOLVED
Insul-Coustic Corporation maintains its principal office and place of business in
Maspeth, New York, where it is engaged in the manufacture and sale of molded
Fiberglas insulation fittings. During the past calendar year, a representative period,
it received goods and materials valued in excess of $50,000 from outside the State
of New York and sold and shipped products valued in excess of $50,000 directly
to points outside of said State.
I find, as has been stipulated by the parties, that Insul is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
Armstrong Contracting and Supply Corporation (hereinafter referred to as Arm-
strong or the Employer) is a Delaware corporation and a wholly owned subsidiary
of Armstrong Cork Company with its principal office at Lancaster, Pennsylvania,
and one of its branch offices in Nashville, Tennessee. It is engaged in the building
and construction industry in the installation of pipes, ducts, and related equipment.
I find, as is admitted by Respondents, that it is a person engaged in commerce
or in an industry affecting commerce within the meaning of Section 8(b) (4) (i)
and (ii)(B) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondents, as admitted by them, are labor organizations within the meaning of
Section (2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
1. Whether the Respondents, or either of them, violated Section 8(b) (4) (i) (B)
of the Act by inducing and encouraging an individual employed by Armstrong not
INT'L ASSN. OF HEAT AND FROST INSULATORS, ETC. 663
to install molded fittings (which Armstrong had purchased from Insul) on pipes
in the Erlanger Hospital at Chattanooga, Tennessee, which Armstrong had con-
tracted to do.
2. Whether Respondents, or either of them, had threatened, coerced, or restrained
Armstrong within the meaning of Section 8(b) (4) (ii) (B) of the Act.
3. Whether there is merit to the affirmative defense that the conduct of Respond-
ents alleged in the complaint was to enforce a valid contract in a "primary" dispute
with Armstrong.
B. Background and summary of events
In the installation of pipes (such as those which were being installed by Armstrong
in the Erlanger Hospital as aforementioned) it is necessary to cover them with
insulation. Where a pipe varies from a straight line, is joined to a pipe of a dif-
ferent diameter, or is connected with another pipe, it is necessary to install pipe-
fittings to accomplish the variation, joint, or connection. These pipefittings also
require insulation. It is with respect to the insulation of pipefittings at the Erlanger
Hospital that this proceeding is principally concerned.
There are three methods (employed by those engaged in the business of installing
pipes) to obtain insulation which conforms to the shape of a pipefitting: (1) con-
structing it by hand by wrapping some insulating material, such as felt, around
the pipefitting; (2) constructing it by hand by cutting a straight tube of Fiberglas
material in such fashion as to have it conform to the shape of the pipefitting (a
process called "mitering"); or (3) by purchasing machine molded Fiberglas in
shapes and sizes designed to conform to various stock shapes and sizes of pipefittings.
Hereinafter, this last type of insulation will be referred to as a molded fitting. It is
also referred to in the record as a "premolded fitting." There are references in the
record to "prefabricated fittings" which I infer to mean, in most instances in which
they appear, insulation fashioned by hand at some place other than the jobsite and
should not be confused with molded fittings.
Whatever type of insulation (fitting) used, it must be fastened to the pipefittings
by the mechanic installing the pipe.
In recent years the manufacture of molded fittings has been developing, until
approximately 5 years ago the product was being utilized to such an extent that it
was supplanting the hand-fashioned fittings to a marked degree. Carlton W. Sickles,
president of the International, testified that the use of molded fittings "was beginning
to get like an octopus" by 1957. In that year, at a convention of the International,
it was decided to incorporate in the "model" form of contract supplied to its locals
the "preparation" of insulation as part of the description of the work covered by
the agreement. Of approximately 100 locals, Sickles testified that, as of 10 days
before the hearing, only about 6 do not have the "preparation" provision in their
area contracts.
John E. Zeller, manager of construction and warehouse operations of Armstrong,
testified that on August 17, 1961, he received a telephone call from Sickles and during
the conversation Sickles stated that "premolded prefabricated fittings would no
longer be applied by their membership unless they were manufactured or prefabri-
cated by their Union and carried the approved label." Although Sickles was called
to testify by counsel for Respondents, he was not asked whether he had made such
a statement. He did testify that he knew of no instance where the Union's labels
were placed on molded fittings but that labels were used on prefabricated fittings
(those prefabricated by hand somewhere other than on the jobsite). I find no
reason for discrediting Zeller's testimony as to Sickles' statement to him. On that
day (August 17, 1961), Zeller issued a memorandum to "All District Managers"
of Armstrong informing them of Sickles' statement to him.
John J. March, president of Insul, testified that at a meeting he had with Sickles
on September 6, 1961, at which two other manufacturers of molded fittings were
present,
I asked Mr. Sickles why the attempt to throw us manufacturers out of
business and Mr. Sickles said that his men have been insulating fittings in their
way for 40 years and he was not going to have any manufactured product
take this away from them.
He also testified that Sickles stated,
That the contractors would be allowed to finish what they had, but from
then on in, the fittings would have to have decals on which the Union was to
furnish the various locals.
Sickles, when testifying, was not questioned as to whether he made such statements
and there appears to be no reason why March's testimony should be discredited.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I infer, from Sickles' testimony, that he did make the statements attributed to
him by Zeller and March, but that he predicated them on the "preparation clause"
in the various local contracts. It further appears from his testimony that the various
locals were advised or understood that it was the position of the International that
they should rely on the "preparation clause" as the basis for refusing to install
molded fittings
Sometime in October 1961, Armstrong commenced installing pipe in the Erlanger
Hospital in accordance with its contract therefor. It is conceded by all the parties
that the consulting engineer 's specifications called for the installation of molded
fittings. Despite this fact, Armstrong did not apply molded fittings. Steward Edwin
Dyer, Jr., branch manager of Armstrong at Nashville, Tennessee, who issued the
work orders for the Erlanger installation, testified that he specified in the work
orders that hand-wrapped fittings be applied (the first of the three types described
above). James McInturf, a "working foreman" 1 for Armstrong in the installation
of the pipes at Erlanger, testified that he applied the fittings specified in said work
orders. Dyer explained that he did not comply with the specifications of the con-
sulting engineer in preparing the work orders, because he had been informed by his
home office (through Zeller's aforementioned memorandum of August 17, 1961),
and had had corroborative information that the International was "prohibiting" the
use of molded fittings, and that he prescribed hand-wrapped fittings "in an attempt
to circumvent any difficulties with the Union in performing the work."
Mclnturf testified that around the beginning of November a "Mr. Art Jones,"
whom he described as "the mechanical engineer ," objected to the fact that the fittings
which had been specified were not being installed on the Erlanger job and stated that
the fittings which Mclnturf had installed were not "permissible," and that he would
have to put on the fittings specified. Mclnturf then telephoned Dyer in Nashville and
reported the incident. That evening Mclnturf called Julius Potts, business agent of
the Local, and also reported the incident to him. According to Mclnturf, Potts "was
kind of in the dark on the thing" and told McInturf that "he would call the Interna-
tional and find out about it."
The next day Dyer came to the Erlanger site and discussed with Potts and Mclnturf
the problem raised by the fact "that the Engineers were calling for the premolded
fittings in accordance with the specifications." Dyer asked Potts for a ruling and
Potts said that he would have to check with the International. Potts immediately
called Sickles and after their conversation was concluded he told Dyer that Sickles
had stated "that if the Engineers wanted the fittings put on or used that the Engineers
would put them on themselves." Potts testified that, in his telephone conversation
with Sickles, Sickles told him that if the so-called preparation clause was in the
Local's contract not to install the molded fittings, that "we claim it as our work." 2
Mclnturf testified that shortly after this incident there was a meeting of the Local
at which the installation of molded fittings was discussed and that Potts stated that
"according to our contract, we wasn't suppose to put them on."
Within a few days after Dyer's visit to Erlanger site, molded fittings which Arm-
strong purchased from Insul arrived at the site and Mclnturf unloaded them. Sub-
sequent to the meeting of the Local and the arrival of the molded fittings, John R.
Holton, construction superintendent for Armstrong at the Erlanger site, asked
Mclnturf to install the molded fittings. Holton testified that McInturf said "that he
couldn't install them because he had been notified by his business agent not to install
them.. .. Potts testified that he told Mclnturf of his telephone conversation with
Sickles and that Sickles informed him (Potts) to tell Dyer that "we were claiming
it [the preparation of the fittings] as our work."
When Holton asked Mclnturf to install the molded fittings, McInturf suggested
that Potts be consulted. Holton talked to Potts by telephone and, according to Hol-
ton's testimony, when he asked Potts why the fittings could no be installed, Potts
said that "he had been notified by Mr. Sickles not to install" them. Mclnturf and
Holton then went to the architect' s office to explain why the molded fittings could
not be installed. One of the staff there asked Mclnturf what would happen if he were
asked to install the molded fittings to which McInturf replied (according to Holton's
testimony which was not denied ), "I would have to go home, I've been instructed
not to."
"He had assisting him with the installation a "mechanic," who worked only part of the
time, and a "helper."
2 Although Armstrong did not have -a contract directly with the Local, it was bound
by the agreement effective in the Local's area
INT'L ASSN. OF HEAT AND FROST INSULATORS, ETC. 665
Molded fittings were not installed in the Erlanger Hospital and the fittings pur-
chased from Insul were returned to Insul.
C. Concluding findings
It is quite clear that Mclnturf, an individual employed by Armstrong, was induced
and encouraged by both Respondents to refuse, in the course of his employment, to
install the molded fittings manufactured by Insul. Potts, in no uncertain terms, let
him know that it was the position of the Local that he should refuse and that so
were Sickles' instructions which, I am convinced, were intended to be transmitted to
whoever was working on the installation. Mclnturf's answer to a member of the
Erlanger architect's staff when asked what he would do if he were requested to install
the fittings ("I would have to go home. I have been instructed not to") discloses
that his refusal was not a decision at which he arrived independently.
The testimony of Zeller, Dyer, and Holton, all in the management of Armstrong,
establishes that both the International and Local unequivocally informed Armstrong
that they would not permit their members to install molded fittings. Zeller's testi-
mony was with respect to the position of the International without reference to the
fitting produced by any particular manufacturer. (The record discloses there are,
at least, four manufacturers of molded fittings.) Dyer's testimony disclosed the
same position was taken by both the International and Local without reference to the
fittings produced by any particular manufacturer. The testimony of Holton, Potts,
Mclnturf, and Sickles disclosed that the same position was taken by both Respondents
with reference to fittings produced by Insul.
Sickles' testimony also disclosed that the International's position related to all em-
ployers bound by the various locals' agreements which contained the so-called prep-
aration clause, no matter who the manufacturer of the molded fittings might be, if
the manufacturer was not in a contractual relationship with one of the locals.
I am of the opinion that it has been clearly established that Armstrong was "threat-
ened, coerced and restrained" by both Respondents with an object to force and re-
quire Armstrong to cease doing business with and using the molded fittings of Insul,3
and that they achieved this object.
The gist of Respondents' affirmative defense is that they were engaged in "primary"
activity against Armstrong seeking to enforce the "preparation clause" contained
in the contract by which Armstrong was bound with respect to the Erlanger
installation.
The contract provides, in part, as follows:
ARTICLE VI
The Employer agrees that they will not sublet or contract out any work
described in Article X and the Union agrees not to contract, sub-contract or
estimate on work nor allow its membership to do so nor to act in any trade
capacity other than that of workmen. It is also agreed that no member of a
firm or officer of a corporation or their representative or agents shall execute
any part of the work of application of materials and in no case shall any member
of the Union estimate on or give any labor figures.
ARTICLE X
This Agreement covers the rate of pay, rules and working conditions of all
Mechanics and Improvers engaged in the preparation, distribution and applica-
tion of pipe and boiler coverings , insulations or hot surfaces , ducts, flues, etc.,
also covering of cold piping , and circular tanks connected with the same and
all other work included in the trade jurisdictional claims of the Union. This
to include alterations and repairing of work similar to the above and the use
of all materials for the purpose mentioned.
Assuming arguendo that by purchasing molded fittings from Insul , Armstrong
was subletting or contracting out the "preparation" of insulation and that Respond-
ents by their conduct were seeking to prevent Armstrong from violating the prepara-
tion clause in the contract , nevertheless , under the circumstances revealed in the
record, I am of the opinion that this defense is without merit. The record discloses
that "an object" of Respondents ' conduct was to cause Armstrong to cease using
3 As well as all other manufacturers of such fittings who do not have a contractual
relationship with a local of the International.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Insul's molded fittings or molded fittings manufactured by any other person not in
a contractual relationship with the Local or one of the other locals of the
International.
Sickles testified that the practice was followed of permitting the installation of
"prefabricated fittings" which have a "decal" so that workers on the lobsite could
identify the fittings as having come from a source under contract with one of the
International's locals. Although Sickles testified that he knew of no instance where
"decals" were placed on molded fittings, it is demonstrated by the uncontradicted
testimony of Zeller and March that the International's position was that it would
permit the installation of those molded fittings which carried the union label. Counsel
for Respondent at the close of the hearing during oral argument verified this as the
position of the Respondents. In response to a question as to under what circum-
stances a contractor could comply with a contract to install molded fittings, counsel
for Respondents stated that they could be installed if the contractor manufactured
them himself or if he obtained them from someone in contractual relationship with
one of the locals of the International ("or he [a contractor] can get someone in con-
tractual relationship with that Union under the agreement to premold them").
It is evident that an object of Respondents' conduct was to cause Armstrong to
cease doing business with and handling the products of Insul because the latter
was not in a contractual relationship with one of the locals of the International. Thus,
Respondents cannot rely upon the "preparation clause" as a defense. N.L R B. v.
Denver Building and Construction Trades Council, at al. (Gould & Preisner), 341
U.S. 675, 689; Local 636 of the United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the U.S. and Canada, AFL-CIO
(Detroit Edison, Co.) v. N.L.R.B., 278 F. 2d 8518 (108 App. D C. 24); NL.R.B. v.
Washington-Oregon Shingle Weavers' District Council and Everett Local 2580
Shingle Weavers' Union (Sound Shingle Co.), 211 F. 2d 149 (C.A. 9); Painters
Local Union No. 249, Brotherhood of Painters, Decorators and Paperhangers of
America, AFL-CIO (John J. Reich), 136 NLRB 176; Butchers' Union Local 563,
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO
[Huntington Meat Packing Company, d/b/a Oxford Meat Co ] (Monarch Building
Maintenance Co.), 134 NLRB 136; Local Union No. 98, Sheet Metal Workers'
International Association, AFL-CIO (York Corporation), 121 NLRB 676, 684-685.
I further find that the preparation clause cannot be relied upon as a defense,
based upon my opinion that it cannot be said that Armstrong in purchasing molded
fittings did sublet or contract out work it had been engaged to do. The record
supports the inference that molded fittings cannot be fabricated on the jobsite, but
can only be produced by a factory equipped to process them. The record also
supports the inference that hand-fabricated fittings are not the equivalent of molded
fittings, at least not in the opinion of the architects and engineers involved in the
Erlanger job (who not only specified molded fittings but objected to the substitution
of those which were hand wrapped).4 I do not believe it was contemplated or
could have been understood by the parties to the agreement containing the prepara-
tion clause that the contractor-signatories would manufacture molded fittings. There-
fore, I am of the opinion that a contractor who has been engaged to install molded
fittings is not subletting or contracting out work by purchasing them from one of the
manufacturers of such fittings. In instances where molded fittings are specified the
contractor is powerless to settle the dispute with any local or the International if
they refuse to permit the installation of the fittings specified. It is clear that Respond-
ents were seeking to boycott molded fittings, not to force Armsrtong to engage in
the manufacture of the molded fittings specified for the Erlanger Hospital. Thus,
it cannot be said that Respondents' dispute with Armstrong was "primary" in charac-
ter. Local 756, International Brotherhood of Electrical Workers, AFL-CIO, et al.
(The Martin Company), 131 NLRB 1010; The York Company, supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the Companies set forth in section 1, above, have
4I do not intend to pass upon the question of whether one type is superior to another,
since it does not appear material to this proceeding and there is little in the record upon
which such a judgment could be based except the preference Indicated by the Erlanger
architects and engineers
INT'L ASSN. OF HEAT AND FROST INSULATORS, ETC . 667
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
It having been found that the Respondents have engaged in certain unfair labor
practices, it will be recommended that they cease and desist therefrom and take
certain affirmative action to effectuate the policies of the Act.
Respondents contend that, if a remedial order is issued herein, it be limited in its
scope. The record discloses a pattern of conduct on the part of the International
and an adherence on the part of the Local to the position of the International which
indicate the likelihood that the conduct complained of herein may be repeated not
only with respect to Armstrong and its employees, but also with respect to other
employers in contractual relationship with the Local and other locals of the Inter-
national, and not only with respect to Insul and its molded fittings, but also with
respect to the manufacturers of molded fittings, other than Insul, and their products.
It appears that the International intended to boycott molded fittings in all areas where
the contracts of its locals contained the so-called preparation clause. Therefore, it
would appear appropriate in order to effectuate the purpose of the Act that a broad
cease-and-desist order be issued including employers other than Armstrong and
manufacturers of molded fittings other than Insul. N.L.R.B. v. Highway Truck-
drivers and Helpers, Local No 107, Teamsters, 300 F. 2d 317 (C.A. 3), enfg. 130
NLRB 943; Washington-Oregon Shingle Weavers' District Council, et al. (John E.
Martin and Frank S. Barker, Co-partners doing business as Sound Shingle Co.), 101
NLRB 1159, 1172.
Upon the basis of the foregoing findings of fact, and upon the entire record, I
make the following:
CONCLUSIONS OF LAW
1. Armstrong is a person engaged in commerce or in an industry affecting com-
merce within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act.
2 Each of the Respondents is a labor organization within the meaning of Section
2(5) of the Act.
3 By inducing and encouraging an individual employed by Armstrong to refuse,
in the course of his employment, to install the molded fittings manufactured by
Insui Respondents violated Section 8(b) (4) (i) (B) of the Act.
4. By the foregoing conduct and by stating to Armstrong that their members
would not install said molded fittings Respondents did threaten, restrain, and coerce
Armstrong in violation of Section 8(b)(4)(ii)(B) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the Respondents, their respec-
tive officers, represntatives, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Inducing or encouraging any individual employed by Armstrong, or by any
other person engaged in commerce or in an industry affecting commerce, to refuse
to install molded fittings manufacutured by Insul or by any other person.
(b) Threatening, restraining, and coercing Armstrong, or any other person engaged
in commerce or in an industry affecting commerce, where an object thereof is to force
or require Armstrong or such other persons not to purchase or install molded fittings
manufactured by Insul or by any other person.
2. Take the following affirmative action found necessary to effectuate the policies
of the Act:
(a) Post in their respective business offices and meeting halls, copies of the at-
tached notice marked "Appendix." 5 Copies of said notice, to be furnished by the
s In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "Recommendations of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director for the Tenth Region, shall, after being duly signed by the
respective authorized representative of each of the Respondents, be posted by
said Respondents immediately upon receipt thereof, and be maintained by them
for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to members are customarily posted. Reasonable steps shall
be taken by the Respondents to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Furnish the Regional Director for the Tenth Region copies for posting by
Armstrong, if it should be willing, on its respective jobsites where notices to em-
ployees are customarily posted. Copies of said notice, to be furnished by said
Regional Director, shall, after being signed by the Respondents, as indicated, be
forthwith returned for disposition by him.
(c) Respondents shall transmit to its various locals, other than the Respondent
Local, copies of said notice with instructions to take such action with respect thereto
as is customary with respect to other communications by which the International
advises its locals and membership of the action or position of the International as to
matters with which its membership would be concerned.
(d) Notify said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report, what steps the Respondents have taken to comply
herewith .6
decree of the United States Court of Appeals , the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
6 In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director , In writing, within 10 days from
the date of this Order , what steps the Respondents have taken to comply herewith."
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO EMPLOYEES OF ARMSTRONG CONTRACTING
AND SUPPLY COMPANY
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby give notice that:
WE WILL NOT induce or encourage any individual employed by Armstrong
Contracting and Supply Corporation, or by any other person engaged in com-
merce or in an industry affecting commerce , to refuse to install molded fittings
manufactured by Insul-Coustic Corporation or by any other person.
WE WILL NOT threaten, coerce, or restrain Armstrong Contracting and Sup-
ply Corporation or any other person engaged in commerce or in an industry
affecting commerce where an object thereof is to force or require any of them
not to purchase or install molded fittings manufactured by Insul-Coustic Corpora-
tion or by any other person.
INTERNATIONAL ASSOCIATION OF HEAT AND FROST
INSULATORS AND ASBESTOS WORKERS,
Labor Organization.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
LOCAL 125 , INTERNATIONAL ASSOCIATION OF HEAT
AND FROST INSULATORS AND ASBESTOS WORKERS,
Labor Organization.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 528 Peach-
tree-Seventh Building, 150 Seventh Street NE., Atlanta, Georgia, Telephone Number,
Trinity 6--33b1, if they have any question concerning this notice or compliance with
its provisions.