Int'l Association of Heat & Frost Insulators, Etc.Download PDFNational Labor Relations Board - Board DecisionsJul 18, 1962137 N.L.R.B. 1410 (N.L.R.B. 1962) Copy Citation 1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Mail to the Regional Director for the Second Region signed copies of the aforementioned notice for posting by the Charging Party, the Charging Party being willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being signed by the Respondent, as indicated, be forthwith returned to the Regional Director for disposition by him. (c) Notify the Regional Director for the Second Region, in writing, within 20 days from the date of receipt of this Intermediate Report, what steps the Respondent has taken to comply herewith 24 "If this Recommended Order is 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 Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL OUR MEMBERS, TO ALL EMPLOYEES OF JACK PICOULT AND AL PICOULT D/B/A JACK PICOULT AND TO WHOM IT MAY CONCERN Pursuant to the recommendations of a Trial Examiner of the National Labor Rela- tions Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify you that: WE WILL NOT picket or cause Jack Picoult and Al Picoult d/b/a Jack Picoult to be picketed where an object thereof is to force or require Picoult to recognize or bargain with us or any other labor organization, as -the representative of its employees, in violation of Section 8(b)(7)'(C) of the Act. LOCAL 3, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, 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, 745 Fifth Avenue, New York, New York, Telephone Number Plaza 1-5500, if they have any questions concerning this notice or compliance with its provisions. International Association of Heat and Frost Insulators and Asbestos Workers and Local 24, International Association of Heat and Frost Insulators and Asbestos Workers and Speed- Line Manufacturing Co., Inc. Cases Nos. 5-CC-186 and 5-CC- 187. July 18, 1962 DECISION AND ORDER On March 12, 1962, Trial Examiner David London issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto: Thereafter, the Respondents filed exceptions to the Intermediate Report and a supporting brief. The General Counsel filed a memorandum in support of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with 137 NLRB No. 142. INT'L ASSOCIATION OF HEAT & FROST INSULATORS, ETC. 1411 this case to a three-member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and brief, the General Counsel's memo- randum, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as herein supplemented. We agree with the Trial Examiner's finding that the Respondents violated Section 8(b) (4) (i) and (ii) (B) of the Act. With respect to encouragement and inducement of individuals under Section 8 (b) (4) (i), and restraint and coercion of persons under Section 8(b) (4) (ii), we note the following : The Respondents, as detailed in the Intermediate Report, prohibited Insulation, Asbestos, and Campbell from using insulation fittings made by Speed-Line, a nonunion company. This was accomplished by pressure upon both the employees and upon the officers of these companies. In the case of employees, Business Agent Nichols inquired of Ed- monds, an employee of Insulation, whether the fittings bore a union stamp and told Edmonds not to use them. After Edmonds later used three fittings, Nichols told another Insulation employee, Dunmeyer, that "if he applies more of these fittings there's going to be some hell raised." Then, Nichols told Edmonds he would have to bring him up on charges before the Respondent Local. Nichols admitted filing charges against Edmonds "for working against the best interests of the trade." Edmonds was found guilty, given a suspended fine, and put on probation for a year. As to Asbestos, Nichols told King, as- sistant secretary and treasurer of Asbestos, in the presence of Fore- man, an employee of Asbestos, that if Foreman applied the fittings, Nichols would bring him up on charges. Nichols then said to Fore- man, "I absolutely forbid you to put 'em [the fittings] on." With re- spect to Campbell, Nichols told Potter, an employee of Campbell, that he would have to stop using Speed-Line fittings because they were made by a nonunion company. We find that the acts described above constitute inducement and encouragement of employees of Insulation, Asbestos, and Campbell to engage in refusal in the course of their employment to use or otherwise handle or work on goods or to perform services within the meaning of Section 8 (b) (4) (i) of the Act.' ' See Local Union No. 505, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, et al. (Carolina Lumber Company), 130 NLRB 1438; United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et al. (Midwest Homes, Inc.), 123 NLRB 1806; Local No. 511, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, et al. (New Mexico Building Branch, Associated General Con- tractors of America), 120 NLRB 1658. 1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the pressure brought to bear upon the three em- ployers, we note the following : Insulation, Asbestos, and Campbell are members of an employer- association entitled "Insulation Contractors Association of Washing- ton, D.C., Inc. and Vicinity." The Association and the Respondent Local are parties to the collective-bargaining contract herein involved. Each of the three companies was engaged in construction work in the Washington, D.C., area when the conduct here in issue occurred. In May 1961, within a week after employee Edmonds of Insulation was stopped from using the Speed-Line fittings, as set forth above, President Thomas of Insulation telephoned Business Agent Nichols. Thomas asked why Nichols had stopped his employees from using the premolded fittings. Nichols told Thomas that he had orders from the International that the insulation contractor was not to install the fit- tings because they were not made by a union manufacturer. Toward the end of May 1961, President Shipe of Asbestos heard that Insulation had been stopped from using the molded fittings, and spoke to Nichols because he wanted to find out how his own company should proceed in this matter. Nichols told him that the molded fit- ting was outlawed by the International Union because it was nonunion- made and because its use violated the contract, and, in the words of Shipe, that if "we tried to use them we would be stopped, in the use of this item." About August 12,1961, Shipe asked Nichols whether there had been any change in the attitude or position of the Local with regard to the molded fittings. Asbestos had obtained a new contract, the specifica- tions of which called for molded fittings, and Shipe could see the prob- lem of the fittings coming up. Nichols answered Shipe, "No, that the International had ordered that these molded fitting covers could not be used, and that was the policy of the local." About October 12, King, assistant secretary and treasurer of As- bestos, met Nichols at the Asbestos job at Andrews Air Force Base so that Nichols could examine the Speed-Line fittings and tell King whether Asbestos could use them. Present also throughout the con- versation was an Asbestos employee named Foreman. Edmonds, an employee of Insulation, came by during the discussion. When King and Nichols arrived at the site, Nichols said that if the fittings had a union label or decal, or were union-made, they could be used; but if they were not so stamped and were not union-made, they could not be used. Nichols examined the Speed-Line fittings and said they could not be used, that they had no union label and were not union-made. Then, referring to Foreman, King asked, "Suppose this boy goes ahead now and puts 'em on ?" Nichols said, "Well, I'll bring him up on charges." And he told Foreman, "I absolutely forbid you to put 'eni INT'L ASSOCIATION OF HEAT & FROST INSULATORS, ETC. 1413 on." Then, when asked again, "Are you sure that there's no possible way of putting these fittings on? . . . ," Nichols answered, "That's correct." Nichols told King that "this authority" came from the In- ternational. Edmonds himself testified that when he walked by, during the conversation between Nichols and King, when King asked why he could not use the fittings, Nichols pointed to Edmonds and said, "There's a man that can tell you why." In May 1961, Nichols told employee Potter of Campbell, in the words of Potter, that "we" would have to stop using the Speed-Line fittings. Potter reported Nichols' statement to Vice President and Superintendent Crumit of Campbell. Crumit thereupon telephoned Nichols and asked, in the words of Crumit, why "we" could not use the fittings and why "we" had been stopped. Nichols informed Crumit that he had stopped the men because the fittings were not union-made. Nichols also told Crumit, again in the words of Crumit, that "we could not use the fittings." In late May or early June, President Gibbons of Campbell tele- phoned President Sickles of the International Union and told him that "we" had been stopped from using the fittings on the job; that they had a number of them purchased and they were at the jobsite; that he had bought them in good faith thinking that they were union-made; and could he "continue to use up the ones he had." At that point, Sickles told him, "No, that I could not use them and he suggested that the next time I wanted to know if something was union-made to call him and that he could be able to tell me." A week or two later, Gib- bons called Sickles again and told Sickles that the job was being held up, and asked whether the Speed-Line fittings could be used if they were cut in miters by the men on the job. Although Sickles said he would talk to Nichols and let Gibbons know about the request, Gib- bons heard nothing further about the request from Sickles. We find that the foregoing conduct constitutes threats, coercion, and restraint of managerial officials of Insulation, Asbestos, and Campbell within the meaning of Section 8('b) (4) (ii) of the Act .2 ORDER The Board adopts as its Order the Recommendations of the Trial Examiner. 2 See International Union of Operating Engineers, Local 571 ( Layne -Western Company), 133 NLRB 208; Building and Construction Trades Council of Tampa and Vicinity, AFL- CIO, et al. ( Tampa Sand and Material Co ), 132 NLRB 1564; Lafayette Building and Construction Trades Council (Southern Construction Corporation ), 132 NLRB 673; Plumbers Union of Nassau County, Local 457 et al. (Jerry Bady, d/b/a Bomat Plumbing and Heating ), 131 NLRB 1243 , 1248; and Local 810, Steel, Metals, Alloys and Hardware Fabricators and Warehousemen, et al. ( Fein Can Corporation ), 131 NLRB 59 , 69, enfd. 299 F. 2d 636 ( C.A.. 2). 1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges in Cases Nos. 5-CC-186 and 5-CC.-187 filed October 18, 1961, and subsequently amended, the Regional Director for the Fifth Region, on November 29, 1961, consolidated said cases and issued a consolidated complaint against Re- spondents International Association of Heat and Frost Insulators and Asbestos Work- ers, hereinafter called the International, and Local 24, International Association of Heat and Frost Insulators and Asbestos Workers, hereinafter called Local 24. The complaint, as amended during the hearing, alleged that since on or about May 12, 1961, both Respondents, in violation of Section 8(b) (4) (i) and (ii) (B) of the National Labor Relations Act, as amended, hereinafter referred to as the Act, (1) induced and encouraged individuals employed by General Insulation Company, hereinafter called Insulation, Asbestos Covering and Roofing Co., Inc., hereinafter called Asbestos, and The Walter G. Campbell Co., Incorporated, hereinafter called Campbell, to engage in strikes or refusals in the course of their employment to use, process, or otherwise handle or work on goods or commodities, or perform services, and (2) have threatened, coerced, and restrained Insulation, Asbestos, and Campbell, all of said conduct having the objective of forcing or requiring Insulation, Asbestos, and Campbell to cease using, handling, or otherwise dealing in the products of, and to cease doing business with, Speed-Line Manufacturing Co., Inc., hereinafter called Speed-Line. Both Respondents, by their separate answers, denied the com- mission of any unfair labor practice. Pursuant to due notice, a hearing was held before Trial Examiner David London at Washington, D.C., on December 18, 1961, and January 16, 1962. All parties were represented at the hearing by counsel and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. Disposi- tion of the International's motions to dismiss the complaint and the amended com- plaint, upon which ruling was reserved at the hearing, is made to accord with the findings, conclusions, and recommendations that follow. Since the close of the hearing, briefs have been received from the General Counsel and Respondents, both of which have been duly considered. Upon the entire record, the briefs of the parties, and my observations of the wit- nesses as they testified, I make the following: FINDINGS OF FACT 1. THE EMPLOYERS Insulation, Asbestos, and Campbell are corporations engaged in the metropolitan area of Washington, D.C., as insulation contractors in the building and construction industry. Speed-Line is a corporation engaged at Greensboro, North Carolina, in the manufacture and distribution of prefabricated, molded, fiber- glass pipe covering and fitted insulators for use in the insulation of heating pipe. During the 12 months preceding the filing of the complaint herein , Insulation, Asbestos, and Campbell each received goods and materials valued in excess of $50,000 directly from points located outside the District of Columbia. I find that all three of said corporations are persons engaged in commerce, and in industries affect- ing commerce, within the meaning of Section 2(6) and (7) and Section 8(b)(4)(i) and (ii) (B) of the Act, and that it effectuates the policies of the Act to assert jurisdiction herein. H. THE LABOR ORGANIZATIONS INVOLVED The International and its Local 24 are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The controversy with which we are concerned stems from efforts by Asbestos, Insulation, and Campbell to depart from a long-existing practice of fabricating, on the jobsite, certain insulation materials used in connection with their work and using, instead, premolded or prefabricated insulation fittings for elbows and joints manufactured by Speed-Line at Greensboro, North Carolina, whose employees were unorganized. During all times relevant herein, Asbestos, Insulation, and Campbell had a col- lective-bargaining agreement with Local 24 which recognized that Local as the ex- clusive bargaining agent of all mechanics and improvers employed by each of them. Article XII thereof, entitled "Work Jurisdiction," provided that the agreement INT'L ASSOCIATION OF HEAT & FROST INSULATORS, ETC. 1415 "covers the rates of pay, rules, and working conditions of all Mechanics and Im- provers engaged in the preparation, distribution on jobsite, and application of pipe and boiler coverings, insulation of hot surfaces, ducts, etc. . . and all other work included in the trade jurisdictional claims of the Union." By article VIII of that agreement, each employer agreed not to "sublet or contract out any work described in Article XII." In May 1961, Insulation was engaged, as a subcontractor, in the installation of insulation on a project under construction for the Federal Government at the Andrews Field Air Base, just outside of Washington, D.C. While Insulation was so engaged, E. L. Nichols, business representative of Local 24, came to the job and during a conversation with C. E. Edmonds, an employee of Insulation, asked to examine the Speed-Line prefabricated fittings then on the site and which fittings Insulation con- templated using on that job. When Nichols ascertained the source of these fittings, and after inquiring "if they had a union stamp on them," he telephoned the office of the International for infor- mation concerning their use but was unable to make contact with that office. He thereupon told Edmonds not to apply the Speed-Line fittings until he heard further from him. After Edmonds called Nichols at his office daily during the next 3 or 4 days without response, he found it necessary to make use of, and consequently installed, three of the Speed-Line fittings. Nichols returned to the job and, finding that Edmonds had made use of the Speed-Line fittings, to told helper Dunmeyer that "if he applies more of those fittings there's going to be some hell raised." Shortly thereafter, Nichols called Edmonds at his home, asked him why he had applied the three fittings and told him, "He would have to bring [him] up on charges" before Local 24. Nichols admitted he filed the charges against Ed- monds "for working against the best interests of the trade." Having been found guilty, a fine was imposed on Edmonds which was, however, suspended, and in lieu thereof he "was put on probation for a year." About the time Edmonds had his first conversation with Nichols aforementioned, Harry L. Thomas, president of Insulation, called Nichols and asked him "why he stopped [Edmonds] from using" the Speed-Line fittings. Nichols replied that "he had orders from the International that the insulation contractor was not to install the fittings for the reasons that they were not manufacured by a union manufacturer." Toward the end of May 1961, after having heard that Insulation "had been stopped" from using the Speed-Line fittings, John T. Shipe, president of Asbestos, talked to Nichols about the use of similar fittings. Nichols replied that they were "outlawed by the International Union and by his Local because [they were] nonunion made" and also because their use would be in violation of the collective-bargaining agree- ment between the parties. Nichols added that if Asbestos "tried to use them [they] would be stopped." On or about August 12, after Asbestos had also obtained a contract for insulation work at the Andrews Field Air Base, and on which prefabricated fittings were specified, Shipe again called Nichols and asked him if there had "been any further change in the situation. Nichols replied in the negative and added "that the Inter- national had ordered that these molded fitting covers could not be used, and that was the policy of the Local." On or about October 12, Robert W. King, assistant secretary-treasurer of Asbestos, met Nichols at the Andrews site and also asked him whether they could use premolded fittings or not. Nichols answered: "Well, if they have a union label or a union decal on them, or are made union, why, you can use them, that's all. It's very simple. There's nothing to it. But if they're not so stamped and the boxes are not so stamped, and are not made by a union manufacturer, you just can't use them, that's all." Nichols examined the Speed-Line fittings then on the jobsite, and the boxes in which they had been shipped, and then told King they could not be used because they had "no union label-they're not made union." The last foregoing conversation having taken place in the presence of Edward Fore- man, a pipe coverer employed by Asbestos and a member of Local 24, King asked Nichols what would happen if Foreman went ahead and put them on. Nichols turned to Foreman and said: "I absolutely forbid you to put them on," and warned him that if he did, Nichols would "bring him up on charges." At a point during the con- versation when King asked Nichols why the Speed-Line fittings could not be used, Edmonds, who, as has heretofore been found, was fined by the Union for installing similar fittings, walked by the other three men. In response to King's last-mentioned inquiry, Nichols pointed to Edmonds and said: "There's a man that can tell you why." Asbestos made no use of the Speed-Line fittings on that job. In May 1961, while J. E. Potter, was engaged as a mechanic on an insulation job for Campbell at the National Institutes of Health in Bethesda, Maryland, he showed Nichols the Speed-Line fittings he intended to use in the performance of that job. 1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nichols told Potter that he would have to stop using those fittings because "they were made by Speed-Line which was a nonunion company." Potter reported the incident to J. H. Crumit, vice president and general superintendent for Campbell, who called Nichols and was told that the fittings could not be used "because they were not union made fittings." 1 In late May or early June 1961, Arthur Gibbons, president of Campbell, called ,Carl Sickles, president of the International, and told him that his company had been stopped from using the Speed-Line fittings which they had bought in good faith, believing them to have been union-made. Gibbons asked Sickles whether they could use at least those that were on the jobsite and was told, very definitely, that he could not. Sickles suggested, however, that "the next time [Gibbons] wanted to -know if something was union made to call him and that he would be able to tell [him]." While the controversy over the use of the Speed-Line fittings was pending in the area, George Falck, Speed-Line's sale representative in the Washington area, talked to -Nichols about the difficulty concerning the fittings at Campbell and Insulation and was told that Nichols could not do anything about it and that Falck would have -to see the International office. Falck called on Albert E. Hutchinson, general sec- retary-treasurer of the International, and was told that the Speed-Line fittings "would -not be -allowed to be put on because at the last International meeting they had outlawed premade fittings-premolded fittings." Falck asked Hutchinson whether he could appeal to higher authority and was referred to Sickles. On the following day, at a meeting attended by Falck, Hutchin- son, and Nichols, Sickles "reiterated the same thing, that the International had ruled against these fittings." Sickles showed Falck a decal carrying the imprint of the 'International Union and told Falck that unless each fitting carried that decal, :members of his union would not install them. Concluding Findings Section '8(b) (4) (i) and (ii) (B) provides that: It shall be an unfair labor practice for a labor organization or its agents (4) (i) 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 employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or re- strain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is: * * * * * * * (B) forcing or requiring any person to cease using, selling , handling, trans- porting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person. .. . . It is the principal contention of the General Counsel that Respondents engaged in -the conduct previously found herein because the insulation contractors made use of fittings produced by nonunion labor. Respondents, on the other hand, contend that their conduct herein was no more than "an appropriate non-threatening plea" to In- sulation, Asbestos, and Campbell to abide by articles XII and VIII of their agreement with Local 24, i.e., that these subcontractors, instead of resorting to the use of the insulated elbows and joints prefabricated by Speed-Line in North Carolina, be required to use the services of their own employees on the various jobsites in the Metropolitan Washington area to make or prepare such fittings. In brief, it is the position of both Respondents that their conduct constituted "primary activity" to enforce Local 24's alleged contractual rights. To this defense, the General Counsel replies that even if it be assumed, arguendo, that the object of Respondents' conduct -was as claimed by them, that object is also proscribed by Section 8(b) (4) of the Act .2 1 Nichols did not deny the testimony of any of the several witnesses who testified credibly that he told them the Speed-Line fittings could not be used because they were nonunion- -made. He contented himself by testifying that he could not remember making such re- marks. He admitted, however, he might have referred to the Speed-Line as "non-union -fittings" or as "snakes . . . which would mean the same thing." 2In support of this argument, the General Counsel relies on Local No. 636 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of 'the United States and Canada , AFL-CIO, et al. (The Detroit Edison Company and Vestinghouse Electric Corporation ), 123 NLRB 225, enfd. 278 F . 2d 858 (108 App. D.C. 24). INT'L ASSOCIATION OF HEAT & FROST INSULATORS, ETC. 1417 On the entire record, I find that Respondents exerted the pressure complained of here not for the reasons asserted by Respondents, but to force or require Insulation, Asbestos, and Campbell to cease using or handling fittings made by Speed-Line with nonunion labor thereby violating Section 8(b)(4)(i) and (ii)(B) of the Act. 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, enfd., 211 F. 2d 149 (C.A. 9); N.L.R.B. v. Local 1016 United Brotherhood of Carpenters & Joiners of America, AFL-CIO, et al. (Booker Lumber Co.), 273 F. 2d 686 (CA. 2), enfg. 117 NLRB 1739; International Union of Operating Engineers, Local Union No. 12, AFL-CIO (Tn County Association of Civil Engineers and Land Surveyors), 126 NLRB 688, enfd. 293 F. 2d 319 (C.A. 9).3 In addition to the findings already entered, there is convincing additional evidence in the record to compel the conclusion announced immediately above. Thus, ac- cording to Nichols' own testimony when he told Edmonds not to apply the Speed-Line fittings until he heard from him again, he did so because it would take "quite a while" to find out whether these fittings were made at "prevailing wages" in North Carolina, an investigation which was, in fact, subsequently made by the International. If Nichols' objection to the use of the Speed-Line fittings was based only on the asserted: claim that the use of these prefabricated fittings deprived the employees covered by the Local 24 contract of the asserted right and opportunity to make or prepare these fittings, why was there any need to find out whether the fittings were made at prevailing wages in North Carolina? The same question has relevance when consideration is given to the liability of the International herein. With respect to that organization, Hutchinson testified that following a call from Nichols pertaining to the Speed-Line fittings, he called their business agent in Greensboro to find out whether Speed-Line had an agreement with the local of the International in that community, and was subsequently informed that it had no such agreement. Significant also are the minutes of a meeting of the general executive board of the International held on August 10, 1961, copies of which minutes were mailed to all its locals and published in its journal. According to those minutes, the International was disturbed by the practice of certain employers who allegedly had not abided by their agreement with the local unions regarding the "preparation [of] craft work ... at the job site . . . with the result that the labor in connection there- with was not performed by employees represented by [its] local unions." Accord- ingly, all local unions were advised "that the General Office is currently in a position to supply International Union labels for use on any of our craftwork performed away from the jobsite by our membership for purpose of identification. The Board members were acquainted with several instances where employers, signatory to the Local Union Joint Trades Agreement, have been found to sublet portions of the insulation work included in their contract to others with the result that the labor in connection therewith was not performed by employees represented by our Local Unions, which, of course, constituted a violation of the agreement through mis- assignment of the work and all Local Unions are instructed to take necessary and appropriate action to deal with any repetition of the practice." [Emphasis supplied.] It is, therefore, apparent that the objective of the International was not to insure that the fittings in question were made or prepared by employees covered by the agreement with Local 24 and represented by it, but that they be made or prepared' by any employees entitled to place the union label of the International on such, fittings. On the record made here, the most that can be said in behalf of either Respondent is, as Nichols told Shipe, the president of Asbestos, that they had a dual objective with, respect to the pressure exerted on the three subcontractors and their employees in- volved in this proceeding. One, was to achieve the unlawful objective already found, and secondly, for the purpose of having the fittings in question made by employees- covered by the contract with Local 24. With respect to the latter, however, a serious question is presented as to whether or not the scope of articles XII and VIII of that agreement is broad enough to require that these fittings be made or prepared "ex- clusively . . . by employees working under [that] agreement as claimed by both. Respondents. The employers apparently do not so construe or interpret that agreement. This is, however, a question which I need not decide, for, assuming arguendo, that- the construction of the contract contended for by Respondents is correct and that the- 8 Though these decisions were based on the language formerly contained in Section. 8(b) (4) (A) of the Act, by its 1959 amendments, the language formerly contained in that section, as applicable to the objective of Respondents, is now a part of Section 8(b) (4) (1), and (ii ) (B). Former 8(b) (4) (A) decisions are, therefore, applicable here. 1418 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD enforcement of the contract as so construed was one of the objectives of Respondents, it is no defense to this proceeding. Having found that Respondents engaged in pro- scribed conduct in order to compel the subcontractors and their employees to cease using nonunion-made fittings, "it is not a defense that other motives may have entered into the action of Respondents. [Section 8(b)(4)(i) and (ii)(B)] forbids a work stoppage by the union when `an object thereof' is to require the employer to cease dealing in the products of another." Local 636 of the United Association of Journey- men 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 858 (108 App. D.C. 24), citing N.L.R.B. v. Wine, Liquor & Distillery Workers Union, Local 1, Dis- tillery, Rectifying and Wine Workers International Union of America, A. F. of L. Schenley Distillers Corporation), 178 F. 2d 584, 586 (C.A. 2); see also N.L.R.B. v. Denver Building and Construction Trades Council, et al. (Gould & Preisner), 341 U.S. 675, 689. Nor is there any merit to the contention of Respondents, obliquely made, that their conduct herein was no more than "an appropriate non-threatening plea to the employer to abide by its valid contract," an alleged exercise of free speech protected by Section 8(c) of the Act .4 The imposition of the fine upon Edmonds by Local 24 was certainly more than an exercise of free speech. Also outside the protection of Section 8(c), insofar as the International is involved, was Hutchinson's statement to Falck that the Speed-Line fittings "would not be allowed to be put on because . they had [been] outlawed." A similar conclusion must be reached with respect to Sickles' statement to Gibbons on two occasions, after being advised by Gibbons that his company "had been stopped from using the fittings," that Campbell could not even use the fittings which had been bought in the belief that they had been union made and were then on the jobsite. The language used by Hutchinson and Sickles had "the intent of threatening" that such of the employees as belong to Local 24 "would cease work" if their employers used the Speed-Line fittings. Bernard L. Alpert v. Excavating and Building Material Chauffeurs and Helpers Local Union No. 379, International Brotherhood of Team- sters, Chauffeurs, Warehousemen of America (Consalvo Trucking, Inc.), 184 F. Supp. 558, 562 (D.C. Mass.). See also Highway Truckdrivers and Helpers, Local No. 107, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Independent (Riss & Company, Inc.), 130 NLRB 943, 947, enfd. 300 F. 2d 317 (C.A. 3). IV. THE REMEDY As I have found that Local 24 and the International have engaged in unfair labor practices, I recommend that they cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Insulation, Asbestos, and Campbell are employers within the meaning of Sec- tion 2(2) of the Act. 2. Local 24 and the International are, jointly and severally, labor organizations within the meaning of Section 2(5) of the Act. 3. By inducing and encouraging individuals employed by Insulation, Asbestos, and Campbell to engage in a refusal in ,the course of their employment to perform serv- ices, and by threatening, coercing, or restraining Insulation, Asbestos, and Campbell, with an object of forcing or requiring that said three companies cease using or handling goods manufactured by Speed-Line or to cease doing business with Speed- Line, Local 24 and the International have engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (B) of the Act. 4. The aforesaid unfair labor practices, having occurred in connection with the operations of Insulation, Asbestos, and Campbell, as set forth above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and substantially affect commerce and the free flow of commerce within the meaning of Section 2(6) and (7) of the Act. 4 Section 8(c) of the Act reads as follows: "The expressing of any views, argument, or opinion, . . shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit...." INT'L ASSOCIATION OF HEAT & FROST INSULATORS, ETC. 1419 RECOMMENDATIONS Upon .the basis of the foregoing findings of fact and conclusions of law, and the entire record in the case, I recommend that Local 24 and the International, their officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Engaging in, or inducing or encouraging any individual employed by In- sulation, Asbestos, Campbell, or any other employer or person engaged in commerce or in an industry affecting commerce, to engage in, a strike or a refusal in the course of his employment to use, or otherwise handle or work on any goods, articles, mate- rials, or commodities, or to perform any services, .where an object thereof is to force or require Insulation, Asbestos, Campbell, or any other employer or person, to cease using, handling, or otherwise dealing in the products of Speed-Line, or to cease doing business -with that Company. (b) Threatening, coercing, or restraining Insulation, Asbestos, Campbell, or any other employer or person engaged in commerce or in an industry affecting com- merce, to cease using, handling, or otherwise dealing in the products of Speed-Line, or to cease doing business with that Company. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post in their respective business offices and meeting halls, copies of the notice attached hereto marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by official rep- resentatives of Respondents, be posted by Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Fifth Region signed copies of the afore- mentioned notice for posting by Insulation, Asbestos, and Campbell, the employer willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being signed by Respondents' official representatives, be returned forthwith to the Regional Director. (c) Notify the Regional Director for the Fifth Region, in writing, within 20 days from the receipt of this Intermediate Report, what steps Respondents have taken to comply herewith.e S In the event that these recommendations be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice In the further event that the Board's Order be enforced by a decree of a 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 " 6In the event that these Recommendations 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 Respondents have taken to comply herewith." APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS; LOCAL 24, INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS, AND TO ALL EMPLOYEES OF GENERAL INSULATION COMPANY, ASBESTOS COVERING AND ROOFING CO., INC., AND THE WALTER G. CAMPBELL CO., INCORPORATED 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, as amended, we hereby notify you that: WE WILL NOT engage in, or induce or encourage any individual employed by General Insulation Company, Asbestos Covering and Roofing Co., Inc., The Walter G. Campbell Co., Incorporated, or by any other employer or person engaged in commerce or in an industry affecting commerce, to engage in, a strike or a refusal in the course of his or their employment to use, process, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force the above-named employers, or any other such employer or person, to cease using, handling, 1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD processing, or otherwise dealing in the products of Speed -Line Manufacturing Co., Inc ., or to cease doing business with that Company. WE WILL NOT threaten , coerce, or restrain General Insulation Company, Asbestos Covering and Roofing Co., Inc ., The Walter G. Campbell Co., Incor- porated , or any other employer or person engaged in commerce or in an industry affecting commerce, with an object of forcing or requiring such employers or any other person to cease doing business with Speed -Line Manufacturing Co., Inc. INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS, Labor Organization. Dated------------------- By-------------------- ----------------------- (Representative ) (Title) LOCAL 24, 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 or employers may communicate directly with the Board 's Regional Office , Sixth Floor, 707 N. Calvert Street, Baltimore 2, Maryland , Telephone Num- ber, Plaza 2-8460, if they have any question concerning this notice or compliance with its provisions. State Packing Company and Lawrence Mitchell Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, Local 563 and Lawrence Mitchell. Cases Nos. 21-CA-337 and 21-CB-1f?6. July 18, 1962 SUPPLEMENTAL DECISION AND ORDER On April 8, 1959, Trial Examiner Martin S. Bennett issued his Intermediate Report and on February 15, 1960, a Supplemental Re- port in the above entitled proceeding, finding that the Respondent Company and Respondent Union violated Section 8(a) (1) and (3) and Section 8 (b) (1) (A) and (2) of the Act, respectively, by invoking their union-security contract against Lawrence Mitchell to deny him continued employment. On August 4, 1960, the Board issued a Deci- sion and Order I affirming the Trial Examiner's findings, but basing its conclusion solely upon a holding that the union-security clause invoked by the Respondents against Mitchell was not a lawful one and could not, therefore, serve as a defense to the charges herein. The Board, accordingly, did not reach other issues raised in the case. Thereafter, in the course of enforcement proceedings, the Board having specifically reversed the precedent upon which its earlier deci- sion in this matter was predicated,2 the United States Court of Appeals 1128 NLRB 432. 2 New York State Electric & Gab Corporation, 135 NLRB 357 , where the Board, Members Rodgers and Leedom dissenting , held that the phrase "within 30 days" used in a union- security clause does not render that clause unlawful . Accordingly , the Board , Member Leedom deeming himself bound by the majority position in the cited case, hereby reverses its prior holding in the instant case and finds that the union-security clause contained In the contract involved was a lawful one. 137 NLRB No. 151. Copy with citationCopy as parenthetical citation