Intl. Assn. Of Heat & Frost Insulators, Local 12

National Labor Relations Board - Board Decisions

Sep 3, 1971

193 N.L.R.B. 40 (N.L.R.B. 1971)

40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Heat and Frost Insulators
and Asbestos Workers, Local No. 12, AFL-CIO I
and Westinghouse Electric Corporation (Power
Generation Service Department)? Case
29-CC-244
September 3, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On April 12, 1971, Trial Examiner Bernard J. Seff
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in certain
unfair labor practices as alleged in the complaint, and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter,
Respondent and the General Counsel filed exceptions
to the Trial Examiner 's Decision and supporting
briefs, and Westinghouse filed an "adoption" of the
General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
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 Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified herein.
The Trial Examiner held, and we agree, that Local
12 violated Section 8(b)(4)(i) and (ii)(B) of the Act by
inducing and causing a work stoppage at Consolidat-
ed Edison's3 Astoria, New York, powerhouse jobsite,
with an object of forcing Johns-Manville Sales
Corporation 4 and Con Ed to cease using in the New
York area preinsulated gas turbines which were
manufactured by Westinghouse at its Lester, Pennsyl-
vania, plant.5 In reaching this conclusion, the Trial
Examiner relied on (1) the "right to control" test and
(2) the absence of a work preservation objective on
the part of Local 12.
As to (1), the Trial Examiner correctly found that
Local 12's stoppage was an unlawful secondary
boycott because it was directed against J-M 6 and Con
Ed, two neutral employers who were incapable of
meeting Local 12's demands which arose out of its
primary dispute with Westinghouse.7
As to (2), the Trial Examiner correctly found that
Local 12 could not properly claim the preinsulated
work on the gas turbines as it has traditionally tind
historically been performed by the employees at*the
Westinghouse plant. Local 12 contends, however, that
its members had for more than 80 years done• all
insulation work on steam turbines in the New York
area and that they were seeking to preserve their
traditional 'insulation work when the gas turbines
were introduced into the area. Even assuming that
Local 12 was seeking to continue performing its
historic insulation work at the Con Ed jobsite, the
record shows that Local 12 went far beyond the
legitimate objective of regaining traditional unit work
at the said jobsite.8 Thus, Jacob Novak, Local 12's
business manager, testified that he expressed to Irvine
Retterer, a Westinghouse official, his concern that
Local 12 was losing much of its "traditional work" in
the New York area, and therefore insisted on a
commitment that Westinghouse would not bring-any
preinsulated gas turbines into that area in the future.
Accordingly, we conclude that Local 12's work
preservation defense fails because its conduct demon-
strates that an unlawful objective of the stoppage was
to boycott, in the New York area gas turbines: not
preinsulated by its members, rather than solely to
protect the,work at the jobsite 9
ORDER
Pursuant ' to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner, and orders that
Respondent, International Association of Heat and
Frost Insulators and Asbestos Workers , Local No. 12,
AFL-CIO, its officers , agents , and representatives,
shall take the action set forth in the Trial Examiner's
recommended Order.
i Herein called Local 12.
2 Herein called Westinghouse.
3 Herein called Con Ed.
4 Herein called J-M
5 The record shows that the gas turbines shipped to Con Ed from
December 1969 to February 1970 were the first of this type to be
introduced into the New York area . Prior thereto , Con Ed used steam
turbines.
6 Local 12 members were employed by J-M which was under a service
subcontract with Westinghouse to perform at the Con Ed jobsite insulation
and other tasks not completed at the Westinghouse plant.
7 See Mechanical Contractors Association of Detroit, Inc., 177 NLRB No.
14.
R See National Woodwork Manufacturers Association v, N.L R.B., 386
U.S 612 , wherein the Supreme Court found that the work preservation
defense is valid only if the union 's secondary boycott is "related solely to
the job-site" employees.
9 In view of the foregoing, we do not deem it necessary to consider the
General Counsel's contention as to an additional basis for finding the
violation , namely, Local 12's purported offer to permit premsulated gas
turbines in the New York area on the condition that they bear the Local 12
decal.
193 NLRB No. 4
INTL. ASSN. OF HEAT & FROST INSULATORS, LOCAL 12 41
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF , Trial Examiner: Upon a charge of
unfair labor practices filed on June 3, 1970,1 by Westing-
house Electric Corporation (Power Generation Service
Department), hereinafter referred to as Westinghouse,
against International Association of Heat and Frost
Insulators and Asbestos Workers, Local No. 12, AFL-CIO,
herein called Local 12 or Respondent, the General Counsel
of the National Labor Relations Board issued a complaint
and notice of hearing on June 29, alleging that Respondent
violated Section 8(b)(4)(i) and (ii)(B) of the National Labor
Relations Act, as amended, herein called the Act. By its
answer the Respondent denies the commission of any
unfair labor practices. This matter was heard by Bernard J.
Seff in Brooklyn, New York, on November 30, December 1,
and 2, 1970.2 All parties appeared at the hearing, were
represented by counsel, and afforded full opportunity to be
heard, to produce, examine and cross-examine witnesses,
and to introduce evidence material to the issues. Oral
argument at the close of the hearing was waived. Briefs
were received from the General Counsel and Respondent
which have been duly considered.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
Ed purchased and caused to be delivered to its Astoria
powerhouse electrical power generating equipment and
other goods and materials valued in excess of $50,000, of
which goods and materials valued in excess of $50,000 were
transported and delivered to the Astoria plant in interstate
commerce directly from States of the United States other
than New York.
Johns-Manville Sales Corporation, hereinafter called J-
M, is a New York corporation which maintains its principal
office and place of business at 560 South 3rd Avenue, in the
city of Mount Vernon, New York, where it is engaged in the
sale and distribution of asbestos insulation, building, and
construction materials and related products. During the
past year J-M purchased and caused to be transported and
delivered to its customers located in the State of New York,
the above-described materials and other goods and
materials valued in excess of $50,000 of which goods and
materials valued in excess of $50,000 were transported and
delivered to places of business of its customers in interstate
commerce directly from States of the United States other
than the State of New York.
Con Ed, Westinghouse, and J-M are employers and
persons engaged in commerce and in an industry affecting
commerce within the meaning of Section 2(6) and (7) and
8(b)(4) of the Act.
II. THE LABOR ORGANIZATION
FINDINGS OF FACT
I. THE EMPLOYERS
Westinghouse, a Pennsylvania corporation, maintains its
principal office and place of business at 3 Gateway Center,
Pittsburgh, Pennsylvania. Westinghouse also maintains and
operates other offices, plants, and places of business
throughout the United States, including a plant at Lester,
Pennsylvania, herein called the Lester plant, where it is
engaged in the manufacture, maintenance, servicing, sale,
and distribution of gas turbine generators and related
products. During the past year, which is a representative
period, Westinghouse manufactured, sold, and, distributed
from its Lester plant products valued in excess of $50,000 of
which products valued in excess of $50,000 were shipped
from said plant in interstate commerce directly to States
other than Pennsylvania.
Consolidated Edison, hereinafter called Con Ed, a New
York corporation, maintains an office and place of business
at 4 Irving Place in the city and State of New York, and
various other places of business in the State of New York,
including its Astoria, New York, plant, where it is engaged
in the production, sale, and distribution of electricity.
During the past year, Con Ed derived gross revenues in
excess of $1 million. During the same period of time Con
I All dates refer to 1970 unless otherwise indicated
2 The transcript is hereby corrected in accordance with the unopposed
motion of the General Counsel dated January 20, 1971.
3 The pertinent part of this Section is as follows-
8(b) It shall be an unfair labor practice for a labor organization or its
agents-
(ft) to engage in, or to induce or encourage any individual employed
by any person engaged in commerce or in an industry affecting
commerce to engage in, a strike or a refusal in the course of his
Respondent Local 12 is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges in substance that the Union
induced or encouraged employees of J-M to refuse to
complete the insulation of five gas turbine generators at the
Astoria, New York, powerhouse jobsite of Con Ed, of
which four had their exhaust manifolds preinsulated with
block insulation by Westinghouse at its Lester plant, and
the fifth was delivered without its exhaust manifold
preinsulated because of scheduling difficulties experienced
by Westinghouse. The object of Respondent in instructing
its employees to go out on strike from May 13 to about June
17 was (a) to force or require J-M and Con Ed to cease (1)
using or otherwise dealing in the gas turbines (products) of
Westinghouse and (2) doing business with Westinghouse
and (b) to force or require Con Ed and J-M to cease doing
business with each other, all in violation of Section
8(b)(4)(i) and (ii)(B) of the Act .3
employment, to use, manufacture , process, transport, or otherwise
handle or work on any goods, articles, materials, or commodities or to
perform any services; or (u) to threaten , coerce, or restrain any person
engaged in commerce or in an industry affecting commerce, where
... an object thereof is:
s
(B) forcing or requiring any person to cease using, selling , handling,
transpoShng, or otherwise dealing in the products of any other
producer, processor, or manufacturer, or to cease doing business with
any other person. .
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Facts
In or about August 1969, Con Ed awarded a contract
valued in excess of '$ 1 million to Westinghouse for the
installation of five as turbine generators at Con Ed's
Astoria, New York, plant. The gas turbine generators were
manufactured and assembled by Westinghouse employees
at its Lester plant. T1>ie Westinghouse employees who have
been represented for many years by Local 107, United
Electrical Radio anal Machine Workers of America,
hereinafter referred tti as UE, performed asbestos insula-
tion work on each of the five gas turbine generators. The
generators were designated 5, 6, 7, 8, and 9. The exhaust
manifolds of units 5, 6, 7, and 8 were preinsulated with
block insulation by the UE members of Westinghouse's
Lester plant. Unit ts turbine or combustor was also
preinsulated with bltk insulation but due to scheduling
delays and the urgency of prompt delivery it was shipped to
New York with its exhaust manifold uninsulated. All five
units were shipped to the Astoria plant over a period of
time from December 1969 through February 1970.
When the gas turbines arrived at the Astoria jobsite, it
was necessary for Westinghouse to tighten certain bolts,
install pipefittings and thermal couples and gauges in the
areas of the combustor and exhaust manifolds sections and
to insulate the combustor and exhaust manifold sections'
horizontal joints or seams with blanket insulation material
and further insulate the expansion joints between the
component parts. Irll addition to the work which was
performed on units S, 6, 7, and 8, it was necessary to
perform the same insulation work upon unit 9, but note
with respect to unit 9 it was also necessary to install block
insulation upon the exhaust manifold of this unit.
On March 17 Westinghouse entered into a service
subcontract with J-M to complete the remaining incidental
asbestos insulation work on the gas turbines. Later, on
April 14, Westinghouse further contracted with J-M to
furnish and install 4-inch thick thermobestors lagging upon
turbine 9's exhaust manifold which, as explained, supra,
had been shipped to on Ed uninsulated.
During late March: or early April, J-M, in accordance
with its contract with Westinghouse, assigned Robert
Barrett, a mechanic working foreman and Raymond Stiles,
an apprentice mechanic, both of whom are members of
Respondent Union, to perform and complete the asbestos
insulation work required on the,gas turbines at Con Ed's
Astoria plant.
On May 12 Jacob Novak, business manager and also the
International Union's vice president , called at the Astoria
jobsite and spoke to J-M's employees Barrett and Stiles.
Novak instructed them to leave the jobsite until the entire
Westinghouse insulation job was assigned to members of
the Respondent Union. They finished out their day but
went out on strike and remained off the job from May 13 to
June 17.
Later, on May 12, Novak informed Hartley Grim, Con
Ed's Astoria plant resident construction manager for gas
turbines, that he was pulling his men off the Westinghouse
gas turbine job. Grim said it was important that the
installation job be completed in order for Con Ed to meet
its electric power requirements for the summer of 1970.
Novak, in a later conversation on the same day with Martin
Huvane, Westinghouse supervising and erection supervisor
in Con Ed's Astoria plant, stated:
He (Novak) was upset by the fact that Westinghouse
was sending gas turbines to this area pre -insulated
without the Asbestos Workers stamp or label on them.
Huvane explained that as of May 13 the following work
bad not yet been completed on the five turbines:
We only completed one unit , number 5 , and we had
started work on numbers 6, 7, and 8. We had maybe
half of number 9 unit completed .... With respect to
number 9 we had completed the exhaust manifold.
Huvane said that when the turbine gets into the field
Westinghouse checks the horizontal joint bolting to make
sure it is not loose . The pipefittings , thermal couples, and
gauges are also checked . These last items are not insulation
but are part of the piping system.
Aloysius Kenny, J-M's construction superintendent, had
two conversations with Novak after Barrett and Stiles
Walked off the job. Novak said:
He would put the men back to work if Westinghouse
would not bring any pre- insulated material into the
New York area . He offered to go to Philadelphia or
anyplace in Pennsylvania to meet with Westinghouse
people to try to settle the strike.
The record shows that Westinghouse shipped 355
turbines throughout the country. The turbines, almost
tithout exception , had exhaust manifolds preinsulated in
its Lester factory. It is clear that the five turbines involved
in this matter were the first shipped by Westinghouse into
the New York area.
J-M has a collective-bargaining contract with
Respondent4 It is not disputed that because of the
4 It provides in pertinent=part as follows:
ARTICLE VI
Each employer recognizes the Union's desire to retain all work
regularly performed for the employer and the Union recognizes the
employer's needs to maintain an efficient operation ; therefore, each
employer will continue to use bargaining unit employees and not
subcontract that work described in Article XI that was been
traditionally and regularly performed by its employees, and we further
agree that application of all new thermal insulation which may be a
replacement for/or in addition to materials now being used as
legitimate claims of the trade of Local No. 12. The Union agrees not
to contract , subcontract or estimate on work, nor allow its
membership to do so 'nor to act in any trade capacity other than that
of workman . It is alsdl agreed that no member of a firm or office of a
corporation , or their representative or agent , shall execute any part of
the work of application of materials.
ARTICLE XI
This agreement covers the rates of pay, rules and working conditions
of all Mechanics and Improvers covered by this agreement and
abide by this agreement , regardless of the location of their
employment within the jurisdiction of Local No. 12, when they are
engaged in the preparation , fabrication , alteration , application,
erection, assembling, molding, spraying, pouring, mixing, hanging,
adjusting, repairing , dismantling, reconditioning, maintenance,
finishing and/or weather-proofing of cold or hot thermal insulation
with such materials as may be specified when these materials are to be
installed for thermal purposes in voids , or to create voids, or on either
piping, fittings, valves , boilers, ducts, flues, tanks, vats, equipment, or
on any hot or cold surfaces for the purpose of thermal control . This is
also to include all labor connected with the handling and distribution
of thermal insulating materials on job premises and all other such
work that is within the jurisdiction of Local No. 12.
INTL. ASSN. OF HEAT & FROST INSULATORS, LOCAL 12 43
preinsulation of the -exhaust manifolds the amount of
incidental additional ' insulation which remained to be
installed at the jobsite left about 30 percent of the
insulation work to be performed by Respondent's mem-
bers . The balance of this work was performed by
Westinghouse employees (members of the UE) at Westing-
house's Lester plant. Westinghouse employees have
traditionally and historically applied block insulation on
the gas turbine exhaust manifolds manufactured by
Westinghouse.
On May 14 Irvine 'etterer, Westinghouse's manager of
industrial relations , called Novak to explain his Company's
practice of preinsulatiog combustors and exhaust manifolds
of its gas turbines at its Lester plant prior to shipment to a
given jobsite. Due to shipping schedules the exhaust
manifold of, turbine number 9 had been delivered to the
Astoria jobsite uninsulated. Novak replied that over the
years he had seen a progressive decline of asbestos work in
the New York area; - Respondent had 200 unemployed
members; that he would fight any company, including
Westinghouse, which ;tried to bring preinsulated turbines
into the New York area; that the only way the instant
dispute could be resolved was if Westinghouse would give
him some consideration for the four preinsulated turbines
which had been shipped into the New York area; that
Novak wanted a commitment that Westinghouse would no
longer ship preinsulated turbines into this area in the future.
Retterer told Novak that Westinghouse would not
negotiate with him; that it had no contractual relationship
with Local 12; that Novak had his contract with J-M.
Novak answered that he had a valid jurisdictional dispute
with Westinghouse to install all the insulation on each of
the five gas turbines;, that he had been instructed by the
union membership to, protect their rights so far as work
preservation was concerned. Novak reiterated that he was
willing to waive the Union's rights to work already
performed upon the four turbines in exchange for
assurances that Westinghouse would not ship any other
preinsulated turbines into Local 12's area in the future.
Novak suggested that Retterer take the problem up with
International Union President Hutchinson. Retterer called
Hutchinson a number of times and was finally informed by
Hutchinson that he, had spoken to Novak who was
adamant in refusing to put his men back to work without
receiving assurances fXom Westinghouse as explained supra.
Hutchinson said Local 12 was autonomous and he could do
nothing to change Novak's decision. In the course of
Retterer's conversations with Hutchinson he said Novak
was making a work preservation claim but that he, Retterer,
could not understand how Local 12 could claim they lost
insulation work they I*d never had in the first place.
On June 1 Retterericalled Novak to report an oil leak in
one of the preinsul4ted gas turbines which had been
installed . In order to: repair this leak it was necessary to
remove the insulation . The strike and the oil leak were
causing Westinghouse to fall further behind in its insulation
at Astoria and exposed it to a $1,000-a-day penalty in its
contract with Con Ed, Novak remained unyielding. He did
express a willingness to discuss the entire problem. Such a
discussion took place at a restaurant among Novak, Grim,
and Daniels, the Con Ed administrator of labor relations,
but no progress was reached in settlement of the dispute.
Thereafter, on June 16, a further meeting was held at J-
M's New York City office at which Westinghouse
representatives Retterer and Arthur Gladfelter, craft labor
relations supervisor ; J-M officials Richard Stapleton, Tom
Williams , District Manager Paul Mattern and Branch
Manager Herbert Pattan were all present together with
Novak and Union Secretary-Treasurer Kellner.
At this meeting Novak said the asbestos workers had
historically performed insulation work for over 62 years
and the work has progressively decreased ; significantly,
Novak stated the dispute did not involve the International
Union but was a dispute between Local 12 and Westinghouse.
Once again Novak offered to forget the first four
preinsulated gas turbines if Westinghouse agreed not to
slip any more preinsulated gas turbine units into the New
York area.
For his part, Retterer explained that almost without
exception gas turbines were manufactured and preinsulated
lfy Westinghouse's Lester plant employees who were
represented by the UE.
The General Counsel in his brief recapitulates the facts to
show that Local 12 directed all its efforts to settle the
problem with Westinghouse officials and not with J-M's
representatives:
1) on May 12, Novak told Huvane, he, Novak, "was
upset by the fact that Westinghouse was sending gas
turbines to the New York area without Asbestos
Worker's stamps or labels on them;
2) on May 12 or 13, Novak told Kenny of J-M, that he,
Novak, would put J-M's men back to work provided
Westinghouse would agree not to bring any more pre-
insulated gas turbines into the New York area;
3) on May 14, Novak told Retterer that he would fight
any company, including Westinghouse, which tried to
bring pre-insulated turbines into the New York area;
4) Novak wanted a commitment from Westinghouse
... that in future it would no longer ship pre-insulated
gas turbines into the New York area;
5) Novak had a valid jurisdictional dispute with
Westinghouse to do the insulation work;
6) Novak would accept insulated equipment anywhere
in his jurisdiction provided it had the union decal on it;
7) Novak was willing to waive the union's rights to the
work already performed upon the 4 turbines in
consideration of Westinghouse assurances that it would
not bring any additional pre-insulated turbines in
Respondent's area in the future;
8) On June 1 Novak told Retterer that he would fight
Westinghouse to the end; that he would do anything
possible including "going to jail" to prevent Westing-
house from shipping pre-insulated turbines.
- The General Counsel argues that Local 12's objectives
were not directed to the labor relations of J-M 's employees
but were designed to satisfy the Union's objectives
elsewhere . It is further pointed out that the record is barren
of evidence that Local 12 's members traditionally per-
formed such insulation work for Westinghouse.
' Respondent's brief advances the contention that "there is
no evidence that Local 12 had any interest in Westing-
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
house's labor relations with its employees at the Lester
plant. On the contrary the record is replete with testimony
that the object of Local 12's activities was to preserve the
work of insulating generators by their members at the
jobsite. The provisions of the collective-bargaining agree-
ment between Local 12 and J-M clearly indicate the intent
of the Union to retain all work `traditionally and regularly
performed' by its members. It is further argued that Local
12 was not interested in having Westinghouse cease doing
business with J-M. All of Novak's conversations with Con
Ed and Westinghouse were aimed at having Westinghouse
change its method of shipping gas turbines into the New
York area in preinsulated form." From this reasoning
Respondent contends its object would not have been
furthered by "a general cessation of business among the
parties." In support of this contention it is pointed out that
Novak repeatedly stated the Union would waive any claim
it had to work on these generators if Westinghouse would
agree to cease shipping preinsulated generators into the
New York area in the future. Respondent contends that
while Respondent's activities were directed against West-
inghouse the objectives of Respondent were not designed
for the object prohibited under Section 8(b)(4)(i) and/or (ii)
because subsection (B) described the forbidden object as
"cease doing business."
Analysis and Conclusions
Respondent argues "that respondent union had but one
goal, one objective, and that was to perform the disputed
work at the job site." The Supreme Court in National
Woodwork Manufacturers Assn v. N. L. R. B., 386 U.S. 612,
644, held:
The determination whether the "will not handle"
sentence of [the agreement] and its enforcement
violated . . . § 8(b)(4)(B) cannot be made without an
inquiry into whether, under all the surrounding
circumstances, the Union's objective was preservation
of work for Frouge's employees, or whether the
agreements and boycott were tactically calculated to
satisfy union objectives elsewhere. ... [Emphasis
supplied.]
On the facts of this case it is clear that the Respondent
had its primary dispute with Westinghouse. The record is
replete with evidence that the significant meetings and
phone conversations with Novak were had with representa-
tives of Westinghouse. The genesis of the dispute arose
from the fact that the generators were partially insulated by
Westinghouse with its own employees and not entirely by
employees represented by Local 12. It should be noted that
Westinghouse produced 355 gas turbines which, almost
without exception, had the exhaust manifolds preinsulated
at the factory. It was not controverted that the generators
delivered to Con Ed were the first preinsulated gas turbines
delivered in the New York area. Under these circumstances
it is difficult to see how the union members could claim
they traditionally and historically performed this work. It
would seem that since Westinghouse employees preinsulat-
ed these turbines from 1949 to date, in fact, the work in
question had traditionally and historically been performed
by Westinghouse employees. Further it is manifest that
Local 12 employees cannot claim they have traditionally
performed the insulation work in question because it was
not disputed that these generators were brought into the
New York area for the first time for installation in Con Ed's
Astoria plant.
It is evident on the record that Local 12 has no present
dispute with its Employer, J-M, since the Union, through
Novak, in effect admitted it was not raising any present
claim to the work involved on the situs of the job. This is
borne out by Novak's repeated offers to waive any claim to
this work conditioned solely on his receiving assurances
from Westinghouse that it would not ship any additional
preinsulated gas turbines into the New York area in the
future.
Contrary to what Respondent argues the Union's strike
was, in the language of National Woodwork, calculated to
satisfy union objectives directed against Westinghouse and
not J-M. The objective in short was to attempt to cause
Westinghouse to alter its method of manufacturing gas
turbines so that in the future no gas turbines would be
delivered in the New York area with preinsulated exhaust
manifolds.
The Board in Local 636, United Association of Journeymen
and Apprentices of The Plumbing and Pipe Fitting Industry
(Mechanical Contractor's Association of Detroit, Inc.), 177
NLRB No. 14, posed the question to be answered as
follows:
The issue in this and related cases in determining
whether a union by its conduct has violated Section
8(b)(4)(B) of the Act is whether the dispute is between
the union and the person against whom the union's
action is directed or between the union and another
person. This issue can be resolved, as recently stated by
the Court of Appeals for the First Circuit [Beacon
Castle Square Bldg. Corp. v. N.L.R.B., 406 F.2d 188
(C.A. 1)], by a consideration of two questions: (1) What
was the union seeking? (2) Was the person against
whom the union directed its action in a position to do
anything about it?
Respondent's purpose was to have Westinghouse cease
shipping preinsulated gas turbines into the New York area
in the future. J-M, the person against whom the Union
directed its action, was powerless to do anything about it.
By the same token J-M and Con Ed were both neutrals in
the dispute between Local 12 and Westinghouse. Since both
Companies were incapable of complying with Respondent'-
s demands an object of Respondent's conduct directed at J-
M must inevitably have been to cause both J-M and Con
Ed to cease doing business with Westinghouse in the future.
The pressure brought to bear on J-M by the Union was not
for the purpose of regulating relations between-J-M and its
employees, but rather for its ultimate effect elsewhere and
this is an unlawful secondary objective. Accordingly, by
inducing and causing a work stoppage with an object of
forcing J-M and Con Ed to cease using preinsulated gas
turbines in the New York area manufactured by Westing-
house, Respondent violated Section 8(b)(4)(i) and (ii)(B) of
the Act and I so find.
CONCLUSIONS OF LAW
1. International Association of Heat and Frost Insula-
tors and Asbestos Workers , Local No . 12, AFL-CIO, is a
INTL. ASSN. OF HEAT & FROST INSULATORS, LOCAL 12 45
labor organization within the meaning of Section 2(5) of the
Act.
2. Westinghouse Electric Corporation (Power Genera-
tion Service Department), Consolidated Edison Company
of New York, Inc., and Johns-Manville Sales Corporation,
are employers engaged in commerce or industries affecting
commerce within the meaning of Section 2(6) and (7) and
8(b)(4) of the Act.
3. From May 13 to June 17, 1970, Respondent violated
Section 8(b)(4)(i) and (ii)(B) of the Act by engaging in
certain conduct found in section III.
4. The said unfair labor practices are unfair labor
practices affecting commerce within the meaning of the
Act.
THE REMEDY
Having found that the Union has engaged in unfair labor
practices within the meaning of Section 8(b)(4)(i) and (u)(B)
of the Act, the customary cease-and-desist order and the
usual affirmative relief ordered in cases of this nature,
including posting of notices, is recommended.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 5
ORDER
International Association of Heat and Frost Insulators
and Asbestos Workers, Local 12, AFL-CIO, its officers,
agents, and representatives , shall:
1. Cease and desist from inducing or encouraging the
employees of Johns-Manville Sales Corporation, or any
other employer or person , to engage in a strike or refusal in
the course of their employment to use , manufacture,
process, transport , or otherwise handle or work on any
goods, articles , materials , or commodities or to perform any
services for their employer; or coercing and restraining
Johns-Manville Sales Corporation or any other employer or
person where an object thereof is ( 1) to force or require
Johns-Manville Sales Corporation , or any other employer
or person , to cease purchasing, using, handling, transport-
ing, or otherwise working on gas turbines fabricated by
Westinghouse Electric Corporation (Power Generation
Service Department), or any other employer or person, on
behalf of Consolidated Edison Company of New York,
Inc., or any other employer or person , (2) to force or require
Consolidated Edison Company of New York, Inc., and
Johns-Manville Sales Corporation, to cease doing business
with each other or with Westinghouse Electric Corporation
(Power Generation Service Department).
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Notify the members of International Association of
Heat and Frost Insulators and Asbestos Workers, Local
No. 12, AFL-CIO, that Respondent has no objection to the
installation or otherwise handling of gas turbines at any
project of Consolidated Edison Company of New York,
Inc., that has been preinsulated by any employer for and on
behalf of Consolidated Edison Company of New York, Inc.
(b) Notify the members of International Association of
Heat and Frost Insulators and Asbestos Workers, Local
No. 12, AFL-CIO, that any previous instructions, requests,
or appeals which Respondent has made against installing or
otherwise handling gas turbines at projects of Consolidated
Edison Company of New York, Inc., insulated for or on
behalf of Consolidated Edison as set forth in (a) above have
been withdrawn.
(c) Post at the offices of International Association of
Heat and Frost Insulators and Asbestos Workers, Local
No. 12, AFL-CIO, copies of the attached notice marked
"Appendix." 6 Copies of said notice, on forms provided by
the Regional Director for Region 29, after being duly
signed by the Union's official representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Deliver to the Regional Director for Region 29 signed
copies of said notice in sufficient number for posting by
Johns-Manville Sales Corporation, Consolidated Edison
Corporation, and by Westinghouse Electric Corporation
(Power Generation Service Department) and, they being
willing, at all locations where notices to their respective
employees are customarily posted.
(e) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith.?
5 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , and recommended Order herein shall , as provided in
Section 102 48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions, and order , and all objections thereto shall
be deemed waived for all purposes.
6 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
7 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read.
"Notify the Regional Director for Region 29, in writing , within 20 days
from the date of this Order, what steps the Respondent has taken to
comply herewith."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all sides had the opportunity to
present their evidence it has been found that we violated the
law by committing unfair labor practices. Accordingly we
post this notice and we will keep the promises that we make
in this notice.
WE WILL NOT (a) induce or encourage the employees
of Johns-Manville Sales Corporation, or of any other
employer or person, to engage in a strike or concerted
refusal in the course of their employment, to use,
manufacture, process, transport, or otherwise handle or
work on any goods, articles, materials , or commodities,
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or to perform any services for their employers or (b)
coerce and restrain Johns-Manville Sales Corporation,
or any other employer or person, where an object
thereof in either instance is (1) to force or require Johns-
Manville Sales Corporation, or any other employer or
person, to cease purchasing, using, handling, transport-
ing, or otherwise working on gas turbines insulated by
Westinghouse Electric Corporation, or any other
employer or person, on behalf of Consolidated Edison
Company of New York, Inc., or any other employer, or
(2) to force or require Consolidated Edison Company of
New York, Inc., and Johns-Manville Sales Corporation
to cease doing business with each other or with
Westinghouse Electric Corporation.
WE WILL and do hereby cancel and withdraw any
orders and instructions given to our members and any
other individuals not to install work upon or otherwise
handle gas turbines at projects of Consolidated Edison
Company of New York, Inc., which gas turbines were
insulated for or on behalf of Consolidated Edison as set
forth in the preceding paragraph.
WE WILL and do hereby, notify our members, and
other individuals employed by Johns-Manville Sales
Corporation, that we have no objection to their
installii4g, working upon, or otherwise handling gas
turbines at projects of Consolidated Edison Company
of New York, Inc., which gas turbines were insulated
for or on behalf of Consolidated Edison as set forth in
the second preceding paragraph.
Dated By
INTERNATIONAL
ASSOCIATION OF HEAT AND
FROST INSULATORS AND
ASBESTOS WORKERS,
LOCAL No. 12, AFL-CIO
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Fourth
Floor, 16 Court Street, Brooklyn, New York 11201,
Telephone 212-596-3535.