Loc. 437, Int'l Brotherhood of Electrical Wkrs, AFL-CIO

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 420 (N.L.R.B. 1969)

420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 437, International Brotherhood of Electrical
Workers, AFL-CIO and its agent, Raymond
Morin * and International Brotherhood of Electrical
Workers, AFL-CIO and Rhode Island and
Southeast Massachusetts Chapter, National
Electrical Contractors Association , Inc. and Dimeo
Construction Co., Charging Party . Case 1-CE-23
December 16, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On - June 20, 1967, Trial Examiner Arthur
Christopher, Jr., issued his Decision in the
above-entitled proceeding , finding that Respondents
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 attached Trial Examiner's
Decision. Thereafter, Respondent Unions filed
exceptions to the Trial Examiner ' s Decision and a
supporting brief, Respondent Association filed
exceptions to the Trial Examiner 's Decision, the
General Counsel filed a brief in support of the
Decision, and Respondent Unions filed a
supplemental memorandum.'
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 with the additions and modifications
noted below.
1. Respondent Local 437, with the approval of
Respondent International , entered into a
collective-bargaining agreement with Respondent
Association which contains the following clause:
* SUPPLEMENTAL DECISION
On May 16, 1968, a three-member panel of the National Labor
Relations Board exercising powers delegated to it pursuant to the
provisions of Section 3(b) of the National Labor Relations Act, as
amended , issued its Decision and Order in the above -entitled proceeding,
finding that Respondents had violated the Act , and ordered Respondents to
take certain remedial action to effectuate the policies of the Act."
Upon its own motion , the Board has decided to reconsider the Decision
and Order of the panel.
The Board having reconsidered the matter , upon the entire record in the
case , has decided to withdraw the Decision and Order previously issued
and to substitute therefor the attached Decision and Order.
'I71 NLRB No. 53.
ARTICLE Il, SECTION I 1
Local Union 437 is a part of the International
Brotherhood of Electrical Workers, and any
violation or annulment of working rules or
agreement of any other Local Union of the IBEW
or the subletting assigning or transfer of any work
in connection with electrical work to any person,
firm or corporation not complying with the terms
of this Agreement by the employer, will be
sufficient cause for cancellation of this Agreement
after the facts have been determined by the
International Office of the Union. [Emphasis
supplied.]
The parties stipulated that the above provision
was found only in contracts "applicable to work
ordinarily performed by employees covered by the
IBEW contract on job sites in the construction
industry" and that the provision "as interpreted by
the parties, allows subcontracting to any
subcontractor who abides by the union standards of
wages, hours and working conditions."
The complaint alleged, and the Trial Examiner
found, that the above-quoted provision violated
Section 8(e) of the Act. We agree.
The clause when considered alone is unlawful
because in effect it permits subcontracting only to
employers who recognize the Union. The phrase
"complying with the terms of this Agreement"
covers union recognition as well as other terms of
the agreement between the Unions and Respondent
Association. It is thus an unlawful secondary
union-signatory subcontracting clause .2 Apparently
the Respondents recognized the illegality of the
clause by attempting in their stipulations to cure the
illegality. We do not consider that the extra-contract
stipulations did make lawful the contract clause
which is unlawful on its face.
That part of the stipulation which refers to onsite
construction attempts to legalize the clause by
bringing it under the construction industry provision
to Section 8(e).3 However, the Board, with court
approval, has held that a substantially identical
clause was unlawful because the "cancellation of this
Agreement" provision of the clause was a prohibited
form of self-help which removed the entire clause
from the protection of the construction industry
proviso to Section 8(e).4
'The Respondent Unions' request for oral argument is denied as the
record , including the exceptions and briefs, adequately presents the issues
and the positions of the parties.
'Truck Drivers Local 413, Teamsters v. N.L.R B, 334 F 2d 539, 548
(C.A.D.C.), cert. denied 379 U.S 916
3This proviso provides.
That nothing in this subsection (e) shall apply to an agreement between
a labor organization and an employer in the construction industry
relating to the contracting or subcontracting of work to be done at the
site of the construction , alteration, painting , or repair of a building,
structure , or other work.
'Ets-Hokin Corporation. 154 NLRB 834, enfd sub nom N.L.R B. v
I B.E.W. Local 769, 405 F 2d 159 (C. A. 9), cert. denied 395 U.S. 921.
The clause found unlawful in Ets-Hokin read-
The Local Unions are part of the International Brotherhood of
Electrical Workers and any violation or annulment of working rules or
agreements of any other Local Union of the IBEW, or the subletting,
180 NLRB No. 32
LOC. 437, INT'L. BROTHERHOOD OF ELECTRICAL WKRS , AFL-CIO
The phrase "not complying with the terms of this
Agreement" in the present case is substantially
identical with the phrase "not recognizing the IBEW
as the collective bargaining representative" in
Ets-Hokin, inasmuch as recognition of the IBEW is
one of the terms of the Respondent Unions' contract
with the Respondent Association.
Respondents contend that the second part of the
stipulation, namely, the provision which says that as
interpreted by parties, the written clause allows
subcontracting to any subcontractor who abides by
the Union standards of wages, hours, and working
conditions, has converted the written clause into a
lawful, primary union standards clause.' The issue in
this case is not, however, whether the foregoing
stipulation standing by itself is a lawful primary or
an unlawful secondary clause,' or whether an
ambiguous clause is lawful or unlawful, but whether
the stipulation is adequate to neutralize a clause
which is unlawful on its face. We hold that it was
not for the following reasons:
The unlawful clause found above was embodied in
a written contract and was presumably available not
only to members of the Unions and of the
Association, but also to other persons who might be
interested in subcontracting from general
contractors who were members of the Association.
Such persons, and even members of the Association,
were on notice that they could accept subcontracts
only if they recognized the Unions. Fully to correct
the effect of the unlawful contract clause, the
correction would have had to be publicized as widely
as the original clause. The stipulation is silent as to
publication. It mentions only the interpretation of
the parties; it says nothing about communication to
third persons. The present situation is analagous to
one in which a union and an employer include an
unlawful closed-shop clause in their written
collective-bargaining contract, which they neither
intend to, nor in fact, enforce, but fail to publicize
this fact to the employees. The Board has held in
such case that the illegality is not corrected by the
understanding of the parties.'
Moreover, a union standards subcontracting
clause is primary only if it is limited to requiring
that subcontractors observe "the equivalent of union
wages, hours, and the like."' The legitimacy of a
union standards clause is determined by the union's
interest in preventing the undermining of the work
opportunities for and standards of employees in the
assigning, or transfer of any work in connection with electrical work to
any person , firm, or corporation not recognizing the IBEW as the
collective bargaining representative on any electrical work in the
jurisdiction of this or any other such Local Union by the Employer, will
be sufficient cause for the cancellation of this agreement , after the facts
have been determined by the International Office of the Union.
'See Truck Drivers Local 413, Teamsters v. N L R B. supra at 548.
'Truck Drivers Local 413, Teamsters v N L R B. supra ,; Highway
Truck Drivers and Helpers . Local 107 , Teamsters (S & E McCormick,
Inc.) 159 NLRB 84, decision vacated and case remanded sub nom A
Duie Pyle . Inc v N L R.B., 383 F 2d 775 (C.A. 5)
'Port Chester Electrical Construction Corporation , 97 NLRB 354,
Monolith Portland Cement Company, 94 NLRB 1358.
421
appropriate unit by contractors who do not meet
prevailing wage scales and employee benefits.' When
the subcontracting clause contains limitations not
required to protect the interests of the employees in
the unit, it exceeds the bounds of a lawful primary
clause and becomes secondary and unlawful.1° Thus
if a subcontracting clause should require the
subcontractor to adhere not only to the contract
wage and hour terms, but also to such contract
working conditions as seniority and grievance
procedure, it would bean unlawful secondary clause."
Article II, Section 11, the clause in dispute,
requires a subcontractor to comply with the terms of
"this Agreement." Although the
collective-bargaining contract between the
Respondents is not included in the record, we take
judicial notice of the fact that bargaining contracts
in the building construction industry customarily
include more than wage, hour and other employee
economic benefit provisions. The stipulation allows
subcontracting to subcontractors who abide by
"union standards of wages, hours and working
conditions." "Union standards" refer of course to
the standards in the collective-bargaining agreement
between Respondent Unions and Respondent
Association - "this Agreement." "Working
conditions" necessarily refer to the working
conditions prescribed by the same agreement. In the
absence of evidence to the contrary, we therefore
construe the stipulation as requiring a subcontractor
to adhere not only to the agreement's wage and
hour provisions, but also to other contract working
conditions, which may or may not be economic in
nature. As so construed, we find that the stipulation
does not cure the secondary nature of Article II,
Section 11 of the collective-bargaining agreement
between Respondents.
2. The complaint named Raymond Morin as a
joint respondent with the Unions and the
Association. As there is no evidence that Morin
participated in the unfair labor practices found, we
shall dismiss the complaint as to him.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, except
as to Raymond Morin , and orders that
Respondents : International Brotherhood of
Electrical Workers , AFL-CIO , its Local 437, their
officers, agents , and representatives , Providence,
Rhode Island; and Rhode Island and Southeast
'Truck Drivers Local 413. Teamsters v N L R B at 548
'Local Union No 741. Plumbers (Keith Riggs Plumbing and Heating
Contractor). 137 NLRB 1125
"Retail Clerks International Ass'n (State-Mart, Inc.), 166 NLRB No
92.
"Ibid
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Massachusetts Chapter, National Electrical
Contractors Association, Inc., its officers, agents,
successors, and assigns , shall take the action set
forth in the Trial Examiner's Recommended Order.
IT IS HEREBY FURTHER ORDERED that the
complaint herein be, and it hereby is, dismissed as
to Raymond Morin.
Association, approved by the Respondent International,
which contained a cancellation clause (Article II, Section
11) or annulment provision, alleged to be illegal, (2)
Assuming a violation is there any liability on the part of
the Respondent International.
As indicated hereinabove, there is no dispute as to the
facts of this case.
II. EMPLOYERS AND PERSONS
TRIAL EXAMINER'S DECISION
ARTHUR CHRISTOPHER , JR., Trial Examiner: Pursuant
to notice, this case went to hearing at Boston,
Massachusetts, on February 27, 1967, upon the amended
complaint issued by the General Counsel of the National
Labor Relations Board, herein called the Board, alleging
that Local 437, International Brotherhood of Electrical
Workers, AFL-CIO, herein called Local 437, and its
Agent, Raymond Morin, herein called the Business Agent,
and International Brotherhood of Electrical Workers,
AFL-CIO, herein called the International, and Rhode
Island and Southeast Massachusetts Chapter, National
Electrical Contractors Association, Inc., herein called the
Association, had been and were engaging in unfair labor
practices within the meaning of Section 8(e) of the
National Labor Relations Act, herein called the Act.' All
Respondents affirmatively pleaded the denial of the
commission of any unfair labor practices. At the hearing
all the parties stipulated to the facts in the case . All were
afforded full opportunity to argue orally, and to submit
briefs. Briefs filed by the General Counsel, by the
Respondent Unions (jointly), and by the Respondent
Association, have been fully considered.'
Upon the entire record in the case, including the
stipulation of the parties as to the facts, and consideration
of the briefs filed herein, I make the following:
FINDINGS OF FACTS
1. THE ISSUES
The issues for determination in this proceeding are (1)
whether the Respondent Union, the Respondent Business
Agent, and the Respondent Association violated Section
8(e) of the Act by Respondent Local 437's execution of a
collective bargaining agreement, with the Respondent
'The complaint was issued December 16, 1966 . The unfair labor practice
charge initiating the proceeding was filed January 19, 1966, and the
amended charge was filed on February 7, 1966.
'No brief was filed by the Charging Party
The Respondent Association is an organization
composed of certain electrical contractors engaged in the
construction industry within the Commonwealth of
Massachusetts and the State of Rhode Island , on whose
behalf Respondent Association bargains collectively and
negotiates contracts with labor organizations on a
multiemployer basis. At all times material herein
Respondent Association has maintained its principal office
and place of business in the city of Providence, Rhode
Island . In the operation of their respective business
enterprises the members of the Association at all times
herein mentioned have purchased and transported large
quantities of electrical material and equipment in
interstate commerce from and through various States of
the United States other than the Commonwealth of
Massachusetts and the State of Rhode Island. In the last
fiscal year members of Respondent Association purchased
and received electrical material and equipment valued in
excess of $50,000, which were shipped from locations
outside Rhode Island and Massachusetts.
The parties stipulated that the Respondent Association
and its members are, and have been engaged in
commerce, and I find that the Respondent Association
and its members are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
I further find that Respondent Association is an
employer within the meaning of the Act.
I likewise find that Raymond Morin, at all times
material herein , has been business agent of Respondent
Local 437 and more specifically during the years 1961
through 1966, and is a person within the meaning of the
term as used in Section 8(e) of the Act. I likewise find, on
the basis of the stipulation of the parties, that at all times
material herein, Dimeo Construction Company, the
Charging Party , is a person within the meaning of the
term as used in Section 8(e) of the Act.
III. THE UNIONS
On the basis of the stipulation of the parties I find that
Respondent Local 437 is a labor organization affiliated
with the Respondent International within the meaning of
Section 2(5) of the Act, with its principal office and place
of business in the city of Fall River, Commonwealth of
Massachusetts; and that the Respondent International is
likewise a labor organization within the meaning of
Section 2(5) of the Act, with its principal office and place
of business in Washington, District of Columbia, and
further, on the basis of the stipulation of the parties, that
LOC. 437, INT'L. BROTHERHOOD OF ELECTRICAL WKRS , AFL-CIO
Respondent Morin , at all times material herein, was an
agent of Respondent Local 437.
IV. THE UNFAIR LABOR PRACTICES
The parties stipulated that on or about July 30, 1965,
Respondent Local 437 entered into a written
collective-bargaining agreement with Respondent
Association which was approved by the Respondent
International on October 18, 1965, said agreement being
effective until April 30, 1967, and containing a clause
providing for its automatic renewal thereafter unless
changed or terminated by the parties thereto.'
The parties also stipulated that the aforementioned
agreement contained, among others, the following
provisions-
ARTICLE II, SECTION I I
Local Union 437 is a part of the International
Brotherhood of Electrical Workers, and any violation or
annulment of working rules or agreement of any other
Local Union of the IBEW or the subletting assigning or
transfer of any work in connection with electrical work
to any person, firm or corporation not complying with
the terms of this Agreement by the employer, will be
sufficient cause for cancellation of this Agreement after
the facts have been determined by the International
Office of the Union.
The parties further stipulated that Article II, Section I I
set forth in the Agreement is a clause found only in
contracts with Respondent Local 437 and Respondent
International, applicable to work ordinarily performed by
employees covered by the International Brotherhood of
Electrical Workers' contract on job sites in the
construction industry, and that the charge involved herein
arose on a construction job site. The parties also
stipulated that Article It, Section 11, as interpreted by the
parties, allows subcontracting to any subcontractor who
abides by the Union standards of wages, hours, and
working conditions.
In its amended charge, the general contractor, the
Charging Party, Dimeo Construction Company, alleged
that the collective- bargaining agreement between Bell
Electric Co., and Local 437, which was executed July 30,
1965, subject to approval of the International ,4 set forth,
inter alia , the quoted section of Article II - Section I I.
It further alleged that the Employer, Bell Electric Co., a
member of the foregoing employer association and bound
by the agreement executed by the Association, is a
subcontractor to the Charging Party, the general
contractor on the aforementioned project.
The General Counsel in his brief filed with the Trial
Examiner asserts that the collective- bargaining agreement
executed between Local 437 and the Respondent
Association, and approved by the Respondent
International , particularly Article II, Section Il, by its
annulment provision, exceeds the limited exception of the
construction industry proviso to Section 8 (e). In essence,
the General Counsel asserts that the same issue involved
herein was raised in Ets-Hokin Corporation, 154 NLRB
839, 841-843, wherein the Board found that a cluase
therein, particularly in haec verba with the above-quoted
clause , was violative of the Act by reason of its
'The contract was not introduced in evidence.
The Respondent International approved the contract on October 18,
1965.
423
termination aspect
The Respondent Association argues in effect that the
clause in question as interpreted by the parties to the
contract allows subcontracting to any subcontractor who
abides by the union standards of wages, hours, and
working conditions and contends that the quoted section
does not violate Section 8(e) of the Act. It asserts that the
stipulation of the parties makes clear that the clause as
interpreted by them, is lawful, and permits subcontracting
to nonsignatory subcontractors but limits such
subcontracting to subcontractors who abide by the
Union ' s standards of wages, hours , and working
conditions , urging that the latter agreement is permissible
as such provisions are intended to protect the working
conditions of employment generally performed by
employees covered by the instant contract , relying on
International Brotherhood of Teamsters v N.L R.B. 334
F.2d 559 (C.A.D.C. ); Highway Truck Drivers and
Helpers, 159 NLRB 84; National Woodwork Manufacturers
Association v. N.L R B., 386 U.S. 612. It urges that the
complaint does not allege, nor is it a fact, that
subcontracting is limited to subcontractors who either
have recognized the Union or who have contracted with
the Union.
Continuing its argument that the contract clause is
valid , the Respondent Association urges that it must be
presumed that the parties intended the contract to be
construed so to avoid a violation of the Act and further
urges that the subcontracting clause must be considered
proper and not violative of the statute . It also argues that
the language in the clause in question is permissible within
the proviso to Section 8(e), urging that the contract
provision which in substance , reaffirms the legal right of a
party to rescind , is not coercive within the meaning of the
Act, relying on Sheet Metal Workers v. Hardy
Corporation , 33 F.2d 682 (C.A. 5). It further asserts that
there is nothing in the record to show any coercive activity
within the meaning of the statute , arguing further that the
decision in Ets-Hokin Corporation , supra , relied upon by
the General Counsel , is not applicable as in that case the
Board found threats to enforce that contract to be
coercive . It urges that in the case at bar there is no
allegation in the complaint to that effect , nor is there any
proof to that effect , asserting that the burden is on the
General Counsel to prove his case or to prove the facts
that would render Ets-Hokin applicable . It further argues
that the Ets-Hokin principle should be limited to the
specific facts set forth in that case, and that the mere
existence in a contract of a cancellation clause alone,
should not be found violative of the Act, and urges that
the complaint herein should be dismissed.
The Respondent International and Local 437 contend
(1) the subcontracting provision is a primary clause
designed to require subcontractors to meet the equivalent
of union standards in order to protect and preserve the
work standards of the employees of the contracting
employers ; (2) as the subcontracting clause is a legal,
primary clause , the parties may restate in the contract
their legal right to rescind the contract for material breach
of such clause.
The International and Local 437 Respondents contend
as their alternative positions that (1) the subcontracting
clause is within the construction industry proviso to
Section 8 (e) of the Act ; and (2 ) as the subcontracting
clause allegedly is valid as being within the subcontracting
proviso to Section 8(e), the parties may restate in the
contract their legal right to rescind the contract for
material breach of said subcontracting clause.
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As a further position, the Respondent International
asserts that there is insufficient evidence in the record
upon which the Trial Examiner could base a finding of
liability with respect to it.
As indicated above, the principal issue for
determination in this case is whether the cancellation, or
annulment clause contained within the contract is
violative of Section 8(e) of the Act. Section 8(e) of the
statute reads as follows:
It shall be an unfair labor practice for any labor
organization and any employer to enter into any
contract or agreement, express or implied, whereby such
employer ceases or refrains or agrees to cease or refrain
from handling , using , selling , transporting or otherwise
dealing in any of the products of any other employer, or
to cease doing business with any other person, and any
contract or agreement entered into heretofore or
hereafter containing such an agreement shall be to such
extent unenforceable and void: Provided. That nothing
in this subsection (e) shall apply to an agreement
between a labor organization and an employer in the
construction industry relating to the contracting or
subcontracting of work to be done at the site of the
construction, alteration, painting, or repair of a
building, structure, or other work: Provided further,
That for the purposes of this subsection (e) and Section
8(b)(4)(B) the terms 'any employer,' 'any person
engaged in commerce or in industry affecting
commerce,' and 'any person' when used in the relation
to terms 'any other producer, processor, or
manufacturer,' 'any other employer,' or 'any other
person' shall not include persons in the relation of a
jobber or manufacturer, contractor, or subcontractor
working on the goods or premises of the jobber or
manufacturer or performing parts of an integrated
process of production in the apparel and clothing
industry: Provided further, That nothing in this Act
shall prohibit the enforcement of any agreement which
is within the foregoing exception.
In my opinion the termination clause in question,
although differing slightly from the one found invalid by
the Board in the Ets-Hokin case,' is illegal . I do not find
the difference in phraseology between the two clauses to
be material and the revision reflected in the instant clause
to cure the defect found by the Board to exist in the
Ets-Hokin case. In the latter case, the Board found that
the threat of contract cancellation was a strong economic
sanction and could be utilized to guarantee compliance
with the subcontracting clause. The Board and the Courts
have held that although a contract within the construction
industry proviso to Section 8(e), set forth hereinabove, is
exempt from the operation of the Section, it may be
enforced only through courts of law and not by self-help
such as by threats, coercion or restrain, all of which are
proscribed by Section 8(b)(4)(B).' The Board, in
Ets-Hokin, citing the Hardy case, supra, at p. 686, stated
that "coercion" means "non judicial acts of a compelling
or restraining nature , applied by way of concerted
self-help, consisting of a strike, picketing, or other
economic retaliation or pressure, in a background of a
labor dispute." (Emphasis supplied.)
'Ets-Hokin Corporation . 154 NLRB 837, 840 -843 (Member Fanning
dissenting)
'Muskegon Bricklayers Union No 5, 152 NLRB 360 Sheet Metal
Workers v Hardy . 332 F.2d 681 (C.A 5); Orangebelt District Counsel of
Painters No 48 v. N.L R. B., 328 F .2d 534 (C.A.D.C) See, also,
Ets-Hokin Corporation, supra
Self-help does not constitute judicial action, even if a
court or its equivalent may grant the same remedy for
breach of contract that one of the contracting parties
proposes to achieve unilaterally. Nor is the contract
principle controlling, i.e., if one party to the contract
breached a material provision thereof, the other may elect
to rescind it.' The Board is not charged with the
administration of the law of private contracts.
It appears that Congress, by enacting Section 8(e),
intended the established law of secondary boycotts to
serve as a guide in the application of Section 8(e).
Consistent with this legislative intention,' the Board and
the courts have uniformly found 8(e) violations whereever
contractual devices have been used to achieve a secondary
object.'
As to the Union's contention that there is no evidence
of application with respect to the disputed clause, it
appears clear to me from the stipulation of the parties
that the annulment or cancellation clause involved herein
was intended to have the same effect as the one involved
in the Ets-Hokin case, supra, and it is immaterial that no
action was taken pursuant to the clause. As the Board
stated in Ets-Hokin,' ° even though the subcontracting
clause contained in that contract was legal under the
construction industry proviso to Section 8(e), the IBEW
local involved in that case, because of violation of the
subcontracting clause, could have practically forced that
employer out of business throughout the United States.
The Board said "The threat of contract cancellation was
therefore a powerful private economic sanction to insure
compliance with the subcontracting clause.""
As asserted by the General Counsel, the Supreme Court
in the National Woodwork case" applied the distinction
between valid primary and illegal secondary action. I
agree with the General Counsel that Respondents herein
cannot assert that the disputed clause has an inherent
primary object."
'In this connection , see Local 5, Plumbers v N.L R B., 321 F.2d 366,
370 (C.A.D.C.), where the court stated "we realize that this conclusion
may leave the Union with a valid contractual provision and with no means
of enforcing it other than a civil-suit . We also realize the difficulty the
building crafts have with the secondary boycott provision of the
Labor-Management Relations Act, but this court is not the forum in which
to seek relief from what the Union characterizes as 'the shackels ' of this
statute."
'See II Legislative History of Labor-Management Reporting and
Disclosure Act of 1959. United States Government Printing Office ( 1959),
at p. 1858 , where it is stated "Thus although employers and unions who
are under [the construction industry ] exemption to [section 8(e)] may
lawfully enter into such agreements , and may resort to the courts for their
enforcement under applicable principles of contract law, no coercion or
restraint - economic or otherwise - may be used by any party to such
agreement , even if entered into voluntarily by both parties, to compel the
other party to live up to the contract or to refrain from breaching it " (The
foregoing was digested from the memorandum prepared by Senator
Goldwater analyzing the statute.)
IN L R B v. Joint Council of Teamsters No 38, 338 F.2d 23, 28 (C.A.
9); NL.R. B. v. Milk Wagon Drivers' Union Local 753. 338 F.2d 326,
328-329 (C.A. 7), Truck Drivers Local 413 v. N.L.R.B., 334 F 2d 539, 547
(C.A.D.C.), cert. denied 379 U.S. 916; and Bakery Wagon Drivers d
Salesmen , Local 1484 v. N.L.R.B. 321 F 2d 352, 358 (C.A.D.C .). See,
also, Eli-Hokin Corporation . supra.
"154 NLRB 837, 841.
"/bid. p. 842.
"National Woodwork Manufacturers Association v. N L.R B, 386 U.S.
612; 35 L.W. 4349; 64 LRRM 2801 (1967).
131n my opinion , NLRB v. Local 217 United Association of
Journeymen and Apprentices of Plumbing and Pipe Fitting Industry of
United States and Canada ( The Carvel Company ). 261 F 2d 160 (C.A 1),
is distinguishable In that case the Court held that the disputed clause
could be construed as permitting voluntary employee work cessation,
LOC. 437, INT'L. BROTHERHOOD OF ELECTRICAL WKRS , AFL-CIO 425
I further agree with the General Counsel that the
disputed clause involved herein clearly shows on its face
that, with respect to termination, the primary person to
make such a decision is the Respondent International.
Because of the foregoing, I find no merit in the position
asserted by Local 437 and the International in their joint
brief that the Respondent International should not be
found to be in violation of the Act, as clearly the
Respondent International is the sole party that makes the
final decision in the event of cancellation of the contract.
As I am bound by the Board's decision in the
Ets-Hokin case, I have no choice but to find that
Respondent Local 437, its Business Agent, Raymond
Morin, Respondent International, and Respondent
Association violated Section 8(e) of the Act, and I so find.
Upon the basis of the foregoing findings of fact,
conclusions, and the stipulation of the parties, and upon
the entire record in the case, I make the following.
CONCLUSIONS OF LAW
1. Respondent Association and its members are
employers engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Respondent Local 437 and Respondent International
are labor organizations within the meaning of Section 2(5)
of the Act.
3. The cancellation clause of Article II, Section 11 of
the 1965-67 contract between Respondent Association on
the one hand and Respondent Local 437 on the other is an
agreement prohibited by Section 8(e) of the Act.
4. Respondent Local 437, and its Business Agent,
Raymond Morin , Respondent International, and
Respondent Association by entering into and giving effect
to the cancellation clause of Article II, Section I I of the
1965-1967 contract, have engaged in unfair labor
practices, in violation of Section 8(e) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondents herein have
engaged in certain unfair labor practices , I shall
recommend that they be ordered to cease and desist
therefrom and to take certain affirmative action in order
to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case,
and pursuant to Section 10(c) of the Act , the undersigned
hereby issues the following:
RECOMMENDED ORDER
Chapter, National Electrical Contractors Association, and
approved by the International Brotherhood of Electrical
Workers, AFL-CIO, whereunder any of them ceases or
refrains, or agrees to cease or refrain, from doing business
with any other person in violation of Section 8(e) of the
Act, or executing any extension or renewal of such
contract to the extent found unlawful herein.
2. Take the following affirmative action which I find
will effectuate the policies of the Act
(a) Through its authorized representatives sign copies of
the notice described hereinabove in paragraph 1(a) and
attached hereto as "Appendix A."'
(b) Post at its business offices and meeting halls in
Providence, Rhode Island (and other localities where
applicable), copies of the same notice. Copies of such
notice, to be furnished by the Regional Director for the
First Region , shall, after being duly signed by an
authorized representative of Respondent Local 437, and
Respondent International, be posted immediately upon
receipt thereof and be maintained 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 to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the said Regional Director, in writing, within
20 days from the receipt of this Decision what steps have
been taken to comply herewith."
II. Rhode Island and Southeast Massachusetts Chapter,
National Electrical Contractors Association, Incorporated,
of Providence, Rhode Island, and various of its member
contractors (if applicable), their officers, agents,
successors and assigns, and/or their individual or
partnership proprietors (if applicable), shall:
1. Cease and desist from entering into, maintaining, or
giving effect to the cancellation clause with Respondent
Local 437, Respondent Raymond Morin and Respondent
International to the extent found unlawful herein.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Post at its place of business in Providence, Rhode
Island , and in other New England states where applicable,
copies of the notice attached hereto as "Appendix B."16
The name of the posting employer must be filled in at the
appropriate blank space therein. Copies of such notice, to
be furnished by the Regional Director for Region 1, shall,
after being duly signed by an authorized representative of
the Respondent Association, or its member or members
(if applicable) be posted immediately upon receipt thereof
and be maintained for a period of 60 consecutive days
thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken to insure that such notices are not
altered, defaced, or covered by any other material.
1. Local Union No. 437, International Brotherhood of
Electrical Workers, AFL-CIO, its Business Agent
Raymond Morin, and the International Brotherhood of
Electrical Workers AFL-CIO, Washington, D. C., their
officers, representatives , and agents , shall:
1. Cease and desist from entering into , maintaining,
giving effect to, or enforcing the cancellation clause of
Article II, Section 11 of the collective- bargaining
agreement executed by Local Union No. 437, Business
Agent Morin, and Rhode Island and South Massachusetts
independent of inducement by the Union , and that only union- induced
work stoppage was proscribed by the statute.
"If these recommendations are adopted by the Board , this provision
shall be modified to read- "Notify the Regional Director for Region 1, in
writing , within 10 days from the date of receipt of this Order , what steps
have been taken to comply herewith."
"If these recommendations are adopted by the Board , the words "a
Decision and Order" shall be substituted for the words, "The
Recommended Order of a Trial Examiner " in the notice . If the Board's
Order is enforced by a decree of a United States Court of Appeals, the
notice will be further amended by the substitution of the words, "a Decree
2f the United States Court of Appeals Enforcing an Order" for the words
a Decision and Order."
"If these recommendations are adopted by the Board , this provision
shall be modified to read . "Notify the Regional Director for Region 1, in
writing , within 10 days from the date of receipt of this Order, what steps
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Sign and mail to the said Regional Director
sufficient copies of said notice, to be furnished by said
Regional Director, for posting by the Association and any
of its members (if applicable).
(c) Notify the said Regional Director, in writing, within
20 days from the receipt of this Decision what steps have
been taken to comply herewith."
have been taken to comply herewith "
"If these recommendations are adopted by the Board , the words "a
Decision and Order" shall be substituted for the words, "the
Recommended Order of a Trial Examiner" in the notice If the Board's
Order is enforced by a decree of a United States Court of Appeals, the
notice will be further amended by the substitution of the words, "a Decree
of the United States Court of Appeals Enforcing an Order" for the words
"a Decision and Order "
APPENDIX A
NOTICE TO ALL MEMBERS
Pursuant to the Recommended Order 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 enter into , maintain , give effect to, or
enforce the Cancellation Clause of Article II, Section
11 of our collective- bargaining agreement with Rhode
Island and Southeast Massachusetts Chapter, National
Electrical Contractors Association, Inc., and any of its
Members (If applicable) to the extent that it violates
Section 8 (e) of the National Labor Relations Act.
LOCAL 437,
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO, AND ITS
AGENT RAYMOND MORIN,
AND INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
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.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 20th Floor,
John F. Kennedy Federal Building, Cambridge and New
Sudbury Streets, Boston, Massachusetts 02203, Telephone
223-3300.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order 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 our
employees that.
WE WILL NOT enter into, maintain, give effect to, or
enforce the Cancellation Clause of Article II, Section
11 of our collective - bargaining agreement with Local
437, International Brotherhood of Electrical Workers,
AFL-CIO, and its agent , Raymond Morin, and
International Brotherhood of Electrical Workers,
AFL-CIO, to the extent that it violates Section 8(e) of
the National Labor Relations Act.
RHODE ISLAND AND
SOUTHEAST
MASSACHUSETTS
CHAPTER, NATIONAL
ELECTRICAL
CONTRACTORS
ASSOCIATION, INC., AND
ANY OF ITS MEMBERS (IF
APPLICABLE)
(Employer)
Dated By
(Representative ) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 20th Floor,
John F. Kennedy Federal Building, Cambridge and New
Sudbury Streets, Boston, Massachusetts 02203, Telephone
223-3300.