Local 141, Sheet Metal Workers

National Labor Relations Board - Board Decisions

Feb 27, 1969

174 N.L.R.B. 843 (N.L.R.B. 1969)

LOCAL 141, SHEET METAL WORKERS
Local Union No. 141 of the Sheet Metal Workers'
International Association and its agents Raymond
Bickers and John F . Wonderly ' and Cincinnati
Sheet Metal & Roofing Company A/K/A Ajax
Company. Case 9-CC-424-1
February 27, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On August 21, 1968, Trial Examiner Phil
Saunders 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, Respondents and the General Counsel
filed exceptions to the Trial Examiner's Decision
and supporting briefs.
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, the briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner, as modified herein.
CONCLUSIONS OF LAW
Delete Conclusion of Law 3, in the Trial
Examiner's Decision, and substitute therefor the
following paragraph:
3. By engaging in, or inducing, or encouraging
employees of B. & J. Jacobs Company and
Feldkamp Sheet Metal, Inc., to engage in, a refusal
to handle the Charging Party's products; and by
threatening, coercing, or restraining B. & J. Jacobs
Company, Feldkamp Sheet Metal, Inc., Ray
Williams, Inc., and Sheet Metal Engineering
Company; where in either case an object thereof was
-to force or require the aforementioned employers to
'We correct the quoted phrase in the sixth paragraph in the section
entitled "Ill. The Unfair Labor Practices" of the Trial Examiner's
Decision to read that Respondent Local 141 's business agent Raymond
Bickers informed the employers that the contract clause would have to be
"lived up to."
In adopting the Trial Examiner's findings as to the unlawful object of
article II, section 2, and article VIII, section 3, in Respondent Union's
collective-bargaining contract with Cincinnati Sheet Metal Contractors
Association , we do not adopt the Trial Examiner ' s statement that
"testimony that employers involved have started making round pipe as a
result of their difficulties with Local 141" is also evidence of a violation.
843
enter into an agreement which is prohibited by
Section 8(e) of the Act or to force or require the
aforementioned persons to cease doing business with
the Charging Party and other persons, Respondents
have violated Section 8(b)(4)(i)(ii) (A) and (B) of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent
Local Union No. 141 of the Sheet Metal Workers'
International Association, its officers, agents, and
representatives, including Raymond Bickers and
John F. Wonderly, shall:
1. Cease and desist from engaging in, or inducing,
or encouraging any individual employed by B. & J.
Jacobs Company, Feldkamp Sheet Metal, Inc., or
any other 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
threatening, coercing, or restraining B. & J. Jacobs
Company, Feldkamp Sheet Metal Inc., Ray
Williams, Inc., Sheet Metal Engineering Company,
or any other person engaged in commerce or in an
industry affecting commerce; where in either case an
object thereof is to force or require the
aforementioned employers or any other employer or
self-employed person to enter into an agreement
which is prohibited by Section 8(e) of the Act, or to
force or require the aforementioned persons or any
other person to cease using, selling, handling,
transporting, or otherwise dealing in the products of,
or to cease doing business with Cincinnati Sheet
Metal and Roofing Company a/k/a Ajax Company,
or any other person.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Notify contractors, or the association acting
for contractor members, that Respondent Union will
not maintain nor insist upon the inclusion of article
II, section 2, and article VIII, section 3, of the
collective-bargaining contract entered into by
Respondent Union and Cincinnati Sheet Metal
Contractors Association, about July 3, 1967,
entitled, "Standard Form of Union Agreement,"
found violative of the Act, or any clauses and
provisions of similar or like nature, in any
collective-bargaining contract.
(b) Post in conspicuous places in all the
Respondent Union's business offices, meeting halls,
and all places where notices to members are
customarily posted, copies of the attached notice
marked "Appendix."2 Copies of said notice, on
forms provided by the Regional Director for Region
9, shall, after having been duly signed by
'In the event that this Order is enforced by a decree of a United States
174 NLRB No. 125
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Union's authorized representatives,
including Raymond Bickers and John F. Wonderly,
be posted by Respondent Union immediately upon
receipt thereof, and be maintained by it for 60
consecutive days. Reasonable steps shall be taken by
Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Sign and mail sufficient copies of said notice
to the aforesaid Regional Director for forwarding to
the Association and its contractor-members for
information, and, if they are willing, for posting by
them in all locations where notices to employees are
customarily posted.
(d) Notify the Regional Director for Region 9, in
writing, within 10 days from the date of this
Decision what steps have been taken to comply
herewith.
Court of Appeals, there shall be substituted for the words, "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order."
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL UNION No. 141, OF
THE SHEET METAL WORKERS' INTERNATIONAL
ASSOCIATION
Pursuant to the Decision and Order 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, induce, or encourage any
individual employed by B. & J. Jacobs Company,
Feldkamp Sheet Metal, Inc., or any other 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; and WE WILL NOT threaten, coerce, or restrain
B. & J. Jacobs Company, Feldkamp Sheet Metal Inc.,
Ray Williams, Inc., Sheet Metal Engineering
Company, or any other person engaged in commerce or
in an industry affecting commerce, where in either case
an object thereof is to force or require the
aforementioned employers or any employer or
self-employed person to enter into an agreement which
is prohibited by Section 8(e) of the Act, or to force or
require the aforementioned persons or any other person
to cease using, selling, handling, transporting, or
otherwise dealing in the products of, or to cease doing
business with, Cincinnati Sheet Metal and Roofing
Company a/k/a Ajax Company or any other person.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 2407,
Federal Office Building, 550 Main Street, Cincinnati,
Ohio 45202, Telephone 513-684-3663.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS, Trial Examiner: Upon a charge filed
on May 31, 1967,' by Cincinnati Sheet Metal and Roofing
Company, herein called the Charging Party, against Local
Union No. 141 of the Sheet Metal Workers' International
Association and its Agents Raymond Bickers and John F.
Wonderly, herein called the Respondent Union, Local 141
or collectively Respondents, the General Counsel issued a
complaint on March 27, 1968, alleging the Respondents
had violated Section 8(b)(4)(i), (ii)(A) and (B) of the
National Labor Relations Act, as amended. A hearing
was held before me on May 9 and 10, 1968, in Cincinnati,
Ohio, and the General Counsel and Respondent Union
subsequently filed timely briefs in this matter
Upon the entire record and from my observation and
demeanor of the witnesses, I make the following:
FINDINGS OF FACT
L THE BUSINESS OPERATIONS OF THE EMPLOYERS
The Charging Party, an Ohio corporation with its plant
and principal offices located in Cincinnati, Ohio, is
engaged in the manufacture and fabrication of roofing,
rain carrying goods, piping, siding and other sheet metal
products for distribution and sale to the building and
construction industry. During the past 12 months, which is
a representative period, the Charging Party had a direct
inflow of goods and materials, in interstate commerce
valued in excess of $50,000, which it purchased and caused
to be shipped directly from points outside the State of
Ohio to its said Cincinnati, Ohio, location.
Feldkemp Sheet Metal, Inc., herein called Feldkemp;
B. & J. Jacobs Company, herein called B. & J.; and Ray
Williams, Inc., herein called Williams, Ohio corporations,
are engaged in the Cincinnati, Ohio, area as sheet metal
contractors in the building and construction industry.
Admittedly, at all times material herein, the Charging
Party, Feldkemp, B. & J. and Williams each is and has
been, an "employer" as defined in Section 2(2) of the Act,
engaged in "commerce" and/or operations "affecting
commerce" as defined in Section 2(6) and (7) of the Act,
respectively.
II. THE LABOR ORGANIZATION INVOLVED
LOCAL UNION NO. 141
OF THE SHEET METAL
WORKERS' INTERNATIONAL
ASSOCIATION
(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.
Local 141, is, and has been, a labor organization as
defined in Section 2(5) of the Act, and at all times
material herein, Respondent Bickers, and Respondent
Wonderly are and have been business manager and
business agent of Local 141, respectively, and are and
have been agents of Local 141, acting in its behalf, within
the meaning of Section 2(13) of the Act.
All dates are 1967 unless specifically stated otherwise.
LOCAL 141, SHEET METAL WORKERS 845
III. THE UNFAIR LABOR PRACTICES
It is the contention of the General Counsel and
Charging Party that the aforementioned Sections of the
Act were so violated because Respondents coerced or
threatened Feldkemp, B. & J., Williams, and have
encouraged and induced individuals employed by the
above-named employer, and others, with an object of
compelling such employers and employees to give effect,
agree, and to enter into a collective-bargaining contract
containing provisions violative of Section 8(e) of the Act.
At all times material, Respondent Local 141 is and has
been the collective-bargaining representative for the
employees of contractors, and for several years they and
Respondent Local 141 have been parties to
collective-bargaining agreements, the last such agreement
having been executed on or about July 3. The following
provisions are contained in that contract (known as the
Standard Form of Union Agreement) between the
contractors in the Cincinnati area mentioned above and
Respondent Local 141.
ARTICLE II
Section 2. Subject to other applicable provisions of this
Agreement, the Employer agrees that when
subcontracting for, prefabrication of materials covered
herein, such prefabrication shall be subcontracted to
fabricators who pay their employees engaged in such
fabrication not less than the prevaiiling wage for
comparable sheet metal fabrication, as established
under provisions of this Agreement.
ARTICLE VIII
Section 3. Notwithstanding the provisions of Section 2
of this Article and Section 2 of Article II, the following
items may be manufactured for sale to the trade or
purchased at the rates specified below:
1. High pressure pipe and fittings (local building and
construction wage rates)
2. Ventilators (production and wage rates)
3. Louvers (production wage rates)
4. Automatic dampers (production wage rates)
5. Radiator and air conditioning unit
6. Fabricated pipe and fittings for residential
installation only (production wage rate)
7. Mixing (attenuation) boxes (production wage rates)
8. Plastic skylights (production wage rates)
9. Kitchen equipment (industrial rates)
10. Air diffusers, grilles, registers (production wage
rates)
11. Sound attenuators (traps) (production wage rate)
The General Counsel points out that while sheet metal
items and fittings are fabricated to some extent by
Feldkemp, B. & J., and Williams in their shops and for
installation by their employees at construction and/or
jobsites, adjustable elbows have never been fabricated by
these contractors and then guage round pipe of 24 gauge
or less has been fabricated by them only on rare
occasions. He maintains such items and fittings were
regularly purchased by the above contractors from the
Charging Party, its distributor, Corken Steel Products
Company, and/or other manufacturers or distributors.
The General Counsel's theory is that the action or conduct
taken by the Respondents - detailed later herein - is
not directed to legitimate work preservation objects, but is
tactically calculated to benefit the union generally rather
than the employees of the employers involved.
Along with other arguments, the Respondents maintain
there has been a substantial continuation in the fabricating
of all gauges of pipe and especially so in the heavier
gauges because of the limited capacity of automatic
equipment, that there is no "job difference" between an
adjustable and a rigid elbow, and that Local 141 has
merely maintained its works preservation rights with a
prevailing wage clause which has approval by the courts
and the Board.
Local 141 represents approximately 85 sheet metal
contractors in the Cincinnati area, and engages in
collective-bargaining negotiations for contracts with the
Cincinnati Sheet Metal Contractors Association. Not all
the employers belong to the Contractors Association, but
each one signs a contract with the Respondent Union.'
The production employees of the Charging Party were
organized by Local 141 in 1958, but in 1960 the Sheet
Metal Workers' International turned the Charter over to
its Local 183. There is no evidence that Local 141 has any
designed plans to become the representative of employees
of the Charging Party. In 1965, Local 141 filed charges
against Sheet Metal Engineering Company of Cincinnati
under the grievance procedure contained in the Standard
Form of Union Agreement and pertaining to the subject
matter of round pipe and adjustable elbows. This
particular dispute was finally brought before a National
Joint Adjustment Board for a decision and pursuant
thereto, Local 141 was notified to file charge alleging
violation of their collective-bargaining contract. In
September 1965, after the decision from the National
Joint Adjustment Board came down, Respondent
Raymond Bickers, business manager for Local 141, held a
meeting with sheet metal employers or contractors in his
jurisdiction for a discussion regarding pipe and elbows.
Bickers informed the employers present that the clause in
the contract would have to be "lined up to" or other
charges would be filed, and that the prevailing wage rate
would have to be paid for the fabrication of the items.
Bickers stated that one of the employers in attendance
then asked him if United Sheet Metal Company in
Columbus, herein United, was an acceptable source to buy
these materials from, and he replied that United was
organized by Local 98 of the Sheet Metal Workers'
International Association and were paying the prevailing
wage rates.'
Of the five contractors involved one way or another in this case - B. &
J, Glenway Sheet Metal, Inc ., Sheet Metal Engineering Company,
Feldkemp, and Williams - the first four are dues paying members of the
Cincinnati Sheet Metal Contractors Association. Williams is not a dues
paying member of the Association , but he adopts and abides by the
Association ' s negotiations as to others. In the negotiations for the current
agreement - G.C. Exh 2 - Williams signed a supplemental agreement
adopting in advance the Association' s negotiations - Resp Exh. 2 Local
141 area contractors are all interwoven in the programs provided for in the
Standard Agreement All contribute and participate in the pension,
vacation , apprentice, and welfare funds and programs , and also have joint
representatives in trust and other committees . There is no evidence that
any contractor has contested the question of his inclusion in the
multi-employer unit-
'For further background purposes the parties stipulated that charges
were also filed by the Cincinnati Contractors Association against Local
141 in Cases 9-CC-371, 9-CE-14, and 9-CC-380. This record shows that in
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As further background leading to the issues and events
in dispute - the General Counsel introduced testimony
through James E. Feldkemp, president of Feldkemp, to
the effect that in the late summer of 1965, employees of
Feldkemp were told they were no longer permitted to
install certain purchased adjustable elbows and round
pipe. Feldkemp stated this incident occurred at a
construction site in Newton, Ohio, and was the first
indication that this practice could not continue. Feldkemp
also related that shortly thereafter, he was on this job
himself installing the round of pipe and adjustable elbows
- when an agent of Local 141, Butler - told him that he
was in violation of his contract because Local 141 had
instructed their members not to install these items. About
this time Feldkemp also had a discussion with Business
Agent Bickers about this problem, and inquired of
Respondent Bickers where he could get adjustable elbows
and round pipe that would meet the requirements of Local
141. Bickers then informed Feldkemp there were several
available sources, but United in Columbus was the only
specific supplier named by Bickers. A few weeks later, in
1965, Feldkemp had three of his employees working on a
Banning School project when these employees suddenly
left the job. Feldkemp was then informed they were not
allowed to install the pipe involved, and the employees
had been threatened with fines by Local 141 if they did so.
Within an hour of the above incident, Respondent Bickers
called Feldkemp and asked if he was laying these
employees off. Feldkemp said no he was not, and it was
Bickers who was laying them off. Bickers then reaffirmed
these employees were not going to install the pipe.'
Robert Jackson, vice president and manager of
Williams, testified that in the latter part of April, his men
were working on the commercial construction of a nursing
home and he had sent out round pipe and adjustable
elbows for this job when an agent of Local 141 (Annis)
called, and informed him Williams would not be permitted
to use'the above materials because they were not made by
Local 141. Jackson then contacted Bickers and inquired as
to an acceptable source where he could buy these items.
Bickers replied that they could be purchased from United
in Columbus or Williams could make them. When
Jackson asked if this material could be purchased from
the Charging Party - Bickers told him they could not
because the items were not "made with 141 labor."
Jackson then placed an order with United, and part of the
original items or material on the job were returned to the
supplier - in this case Williamson Company of
Cincinnati.
February 1966, a settlement agreement was signed by Local 141 in Case
9-CC-37 and which called for the posting of notice - see G.C. Exh. 3 -
and in July 1966, Local 141 was notified that Case 9-CC-371 was closed
upon compliance with the Posting of Notice. The settlement agreement
contained a provision to the effect that Local 141 did not admit and denied
that it engaged in any conduct violative of the Act. Bickers testified that
when the above settlement agreement was signed , Case 9-CE-14 was still
being contested , but that later Case 9-CE-14, and Case 9-CC-380 were
withdrawn or dropped . A few weeks after the notice in the above
settlement agreement was posted in 1966, James Feldkemp was engaged in
a conversation with Bickers about employing Bickers' son at his company
Feldkemp told Bickers that his boy would have to follow orders, and if he
told him to put up round pipe and adjustable elbows he would have to do
so Feldkemp testified that Bickers then told him that the Settlement
Agreement did not mean anything.
'I have given no independent or controlling weight to these events and
incidents which occurred 6 months prior to the operative charge. This
evidence was only admitted and referred to herein for the purposes of
understanding and explaining the ambiguous and equivocal conduct within
the 6-months period
Robert Jackson testified that in the 15 years he has
been in business - Williams has never fabricated a rigid
or adjustable elbow. Jackson stated that they attempted to
make an adjustable elbow but have never succeeded in
doing so, and that Williams had purchased this item from
the Charging Party, but since Local 141 had informed his
union employees they could not install elbows from Ajax
- the trade name of the Charging Party - Williams is
now presently buying adjustable elbows from United in
Columbus, Ohio. Jackson was asked why it was necessary
to use adjustable elbows, and he replied: "Well, adjustable
elbows, if you're running and round duct at all, they're an
evil necessity because you have to go around corners, and
sometimes you have to offset around conduits or pipe that
have been installed by other trades. You just can't run it
directly straight with one straight conductor." Jackson
also stated that it would not be practical to preplan a job
with rigid elbows because of the cost and time in taking
field measurements and then subsequent changes in the
plans. Jackson then went on to relate that the practice of
sheet metal employers in the Cincinnati area is to
purchase adjustable elbows, and to his knowledge no
employer or contractor fabricates this item. Jackson
stated that 6 inch adjustable elbows cost about 57 cents,
and 8 inch ones would be somewhere from 70 to 80 cents.
Jackson testified that his company had always
purchased round pipe - 24 gauge or less - and in the
past Williams would make this product only occasionally
when they needed an odd size or needed a small piece to
finish a job. He stated that his shop is not equipped to
make round pipe for the price it can be purchased for, but
since the problem or difficulties with Local 141 -
Williams has been making this item and that they do not
buy pipe from United because this supplier does not
fabricate the particular kind of round pipe they have been
using. Jackson explained the exception to making their
own round pipe applies to rain carrying drain spouts, and
this item is purchased from the Charging Party with no
objections from Local 141.
Nicks Mitchell, purchasing agent for B. & J., testified
that in January or February he had three adjustable
elbows in the shop - one from Hesco, one from
Stampco, one from Corken Steel, and showed them to
George Petzinger , the shop steward at B. & J., and asked
Petzinger, which elbow would be all right to use. Petzinger
stated that he would talk to Bickers and let him know.
Petzinger then informed Mitchell that none of the three
could be used and that if he "wanted a legal one go to
United Sheet Metal. That would be the only ones to use." 5
Mitchell was also told that the three elbows he had
inquired about were not acceptable because they "weren't
made by Local 141 prices." It appears that the reason
Mitchell inquired as to the elbows was due to the fact
there had been a good deal of controversy during the past
few years over this item, and also because of the refusal
on the part of a few of the employees working for B. & J.
to install this particular material.
In the spring of 1967, B. & J. was working on the
Western Woods Job, and Mitchell received a call from
their employee Joe Thompson. Thompson then advised
'It is well established that a union steward - under these circumstances
- maintains a position of authority as the on-the-job representative or
agent of the Union, and , therefore, the Respondent Union is responsible
for the conduct and misconduct of the steward whose power it has created,
and whom it has clothed with at least apparent authority to represent it at
the job level
LOCAL 141, SHEET METAL WORKERS
Mitchell he had been instructed by Respondent Wonderly
not to install elbows that B. & J. had purchased from
Corken Steel as they did not have theright label on them.'
As a result of this incident B. & J. had to make up some
pipe and rush it out to the job, and the other pipe was
sent back to B. & J This record also shows that in May
or. June, B. & J. received some pipe and elbows from
Corken Steel which had union labels on them, but Shop
Steward Petzinger informed Mitchell that they could not
be used "because they didn't have the right label on
them," and that the right one would be a United Sheet
Metal label.
The General Counsel introduced testimony through
Mitchell to the effect that during the past 18 years B. & J.
has fabricated items in the general sheet metal line
including fixed elbows, but they do not make adjustable
elbows - 24 gauge or less, never have, do not make them
now, and are presently buying such adjustable elbows
from United. Before their difficulty with Local 141 - B.
& J. purchased this item from Corken, Hesco, and
Stampco. Mitchell explained that B. & J. attempted to
make adjustable elbows, but their efforts were not
successful as it required too many man hours of work.
Mitchell testified that the other sheet metal contractors in
the Cincinnati area or in the Contractors Association also
purchased adjustable elbows - and because of the cost
never, fabricated this item. Mitchell explained a 6 inch
adjustable elbow would cost about 55 cents to purchase,
and if a contractor were to fabricate the adjustable elbows
itself, it would take about 2 hours to do so, and costs run
about $8 per man hour meaning a price of $16 to make
the elbow. B. & J. has fabricated rigid elbows for heavier
gauges - 20, 18, and 16 gauges. This record further
reveals that B. & J. generally purchased round pipe, and
usually when they fabricate the same it is for a particular
job and under emergency or rush circumstances, but it has
never made round pipe for sale to the trade. At the
present time B & J manufactures round pipe for its own
use.
As regards the additional or remaining items in article
VIII, section 3, of the Standard Agreement, as set forth
previously herein, B. & J. has fabricated a few louvers and
automatic dampers and some radiator and air
conditioning unit enclosures and a "little bit" of kitchen
equipment,' but none of the other items Mitchell admitted
that Local 141 has made no complaints when B. & J.
purchases attenuators, radiators, diffusers, grilles, mixing
boxes, and ventilators.
The General Counsel introduced testimony through
Jack McDonald, president of Glenway Sheet Metal, Inc.,
to the effect his company purchased adjustable elbows and
has never made this item nor has it been the practice of
other companies or contractors in the area to fabricate
them. In 1965, when the initial difficulties were first
encountered, as aforestated, Glenway attempted to make
adjustable elbows, but could not do so with their
equipment nor were they able to acquire the necessary
machinery or gores, and since then has had to purchase
this item from United. McDonald testified that on certain
jobs adjustable elbows are more satisfactory and practical
in permitting installations around other work, that they
are also less costly, and stated that now Glenway has to
use more rigid elbows, and that his company "stays
away" from small jobs wherein adjustable elbows are
called for. McDonald further testified that regarding
round pipe his practice since 1939 was to purchase this
'Corken is a distributor for the Ajax products of the Charging Party
847
material if it was 24 gauge or less, and only occasionally
they would make it if short pieces were needed. Presently
his company attempts to avoid bidding on jobs calling for
round pipe because now they have to fabricate this item in
order to use it. McDonald stated that prior to 1965, the
sheet metal employers in the area purchased round pipe as
usual practice. On cross-examination McDonald stated
that the only thing Respondent Bickers asked him to do
was purchase round pipe and adjustable elbows from
suppliers who were paying the prevailing construction rate,
and also urged him to fabricate these materials. As to the
other and remaining items listed under article VIII -
section 3 Glenway did not make any of these products
with the exception of louvers, and normally all were and
are purchased items
James Feldkemp testified that in his many years of
experience in the sheet metal trade -- Feldkemp was
incorporated in 1963 and prior thereto he worked for'18
years as a sheet metal mechanic adjustable elbows were
always purchased. He stated his shop has never fabricated
this item, that he has never seen one made in a union
shop, that in his training as an apprentice they were only
instructed in the fundamentals of making such an elbow,
and that now he gets his adjustable elbows from United.
Feldkemp stated that adjustable elbows are used when you
"dodge around, over and under obstacles, such as
conduits, sprinkler heads, and bar joists," and there are
situations where contractors can only use adjustable
elbows. He testified that there is a greater "leakage" in a
shop made rigid elbow unless it is welded, and that a
welded elbow should never be used in place of an
adjustable elbow because the latter is only used on
"run-outs" and up to 24 gauge, and welded elbows
normally start at 18 gauge.7
Feldkemp testified that round pipe, 24 gauge or less,
was always a purchased item prior to the difficulties with
Local 141, but beginning a year ago his company started
"struggling" in the making of this product as they were
no longer permitted to purchase it, as aforestated. He
stated that Feldkemp is now limited in their bidding on
jobs calling for this item because their cost is greater than
when they were permitted to purchase round pipe.
Feldkemp has familiarized himself with the general sheet
metal practice in the Cincinnati area, and testified that to
his knowledge all of the sheet metal contractors in the
Employers' Association purchased round pipe and
adjustable elbows prior to 1965 Another aspect of
Feldkemp's testimony dealt with the remaining items
contained in article VIII, section 3 of the standard form
of union agreement. He testified his company does
fabricate some kitchen equipment, but purchases all the
other items including the purchasing of kitchen equipment
he does not make. Feldkemp further testified to an
incident in the spring of 1967. One of his employees, Tom
Maxwell, had called in from a school jobsite and inquired
as to the status of round pipe. It appears Maxwell had
attempted to install some flue pipe on this project when a
business agent from Local 141 showed up and voiced his
strong objection in so doing. Maxwell also mentioned in
his call a letter which Respondent Bickers had previously
signed, and wherein Bickers stated it was permissible to
make such installations.'
'According to Feldkemp adjustable elbows are four and five pieces,
whereas the rigid elbow is three pieces , and in the latter there is a greater
leakage because the adjustable multipiece elbow will turn the air in a more
gradual manner as contrasted to sharper or single turns with a rigid elbow.
'Apparently the letter Maxwell was referring to was the settlement
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conrad Wagner, president of Sheet Metal Engineering
Company, is a sheet metal fabricator and contractor and
has been in existence for 22 years. His company has
approximately 50 to 55 employees and ranks 4 or 5 in
Cincinnati. His company has always purchased adjustable
elbows and has never made an adjustable elbow, and
Wagner testified he has never seen one made in a sheet
metal contractor's shop. Wagner stated that round pipe,
24 gauge or thinner and except for an occasional odd
length or size, has also been a purchased item until their
difficulties with Local 141, and the past custom of other
sheet metal contractors in the Cincinnati area has been to
purchase round pipe and adjustable elbows. The record
shows that up until 8 or 10 years ago Sheet Metal
Engineering Company purchased the above items from
Cincinnati Stamping Company, and then started buying
these products from other sources and from the Charging
Party due to Respondent Union objections in using
nonunion materials from Cincinnati Stamping Company.
At the time Sheet Metal Engineering was informed that
they could buy from "other people" because the items
would bear the union label. Wagner stated his company is
still purchasing round pipe and fittings from Ajax or the
Charging Party, but his employees have threatened not to
install these items, and that he has made one or two
purchases of adjustable elbows from United, but their
product is inferior and service is bad because it takes
about 2 weeks to get delivery.
Wagner further related that in early May 1968, his
company was working on a hospital care project in
Cincinnati, and he had purchased from the Charging
Party some round pipe and adjustable elbows for this job.
Wagner then received word from his superintendent to the
effect that Respondent John Wonderly had been at the
jobsite and had advised that he could not force Sheet
Metal Engineering from installing the pipe and elbows,
but that they "would regret it if they did." Wagner's
superintendent also informed him the employees, members
of Local 141, refused to make the installations, and
Wagner should get these materials off the job. The pipe
and elbows purchased from the Charging Party were then
sent back to the Company's warehouse, and other
materials were used.
Wagner testified that in using an adjustable elbow you
have a 360 degree turning point, and in contrast to a rigid
elbow you can "go up and down and around" which is
advantageous because the space allotted for duct work is
very compact. Regarding the remaining items listed under
article VIII, section 3, Wagner stated that most of these
products are purchased, but his company does make pipe
- 22 gauge is the lightest, and they also make some
ventilators, louvers, and a few dampers. Wagner also
related that in fabricating round pipe - which his
company is now doing - it is more difficult to "put
together" and it is "very expensive."
Gorden Corken, vice president of Corken Steel
Products, sells Ajax products in the area for the Charging
Party, and during the period 1960 through 1964 his
company would sell on the average of $10,000 per year of
adjustable elbows and 24 gauge round pipe to the sheet
metal contractors organized by the Respondent Union.
Corken testified that commencing in 1965 the selling of
Ajax's pipe and adjustable elbows to sheet metal
contractors organized by Local 141 has become
"practically nil" due to the fact that the Respondent
agreement with Local 141 arising out of similar circumstances in 1965 and
1966, as aforestated
Union would not allow the contractors to use these
products. Corken related that while also acting as a
salesman for Corken Steel Products, he visited all of the
sheet metal contractor's plants in the area and up until
1965 the contractors purchased adjustable elbows and
round pipe from him, but now they no longer buy the
Ajax line from the Charging Party.
On May 4, Nicholas Bauer, attorney for the Charging
Party, met with Respondent Bickers and Respondent
Wonderly because they were refusing to permit members
of Local 141 to handle pipe and elbows manufactured by
the Charging Party. Bauer inquired why this was so since
the products had the Union International label or sticker
on them. Bauer testified Bickers then informed him that
anyone in their organization working with the Charging
Party would be "suspended" and "fined," and contractors
"would be dealt with accordingly " On or about May 8,
Bauer held a second conference with Respondents and
other interested parties. Bauer stated that at this meeting
the question arose as to what could be done by the
Charging Party to make its products acceptable to Local
141, and Bickers replied that the problem could be easily
solved by putting two men on Local 141 on the
manufacturing line of the Charging Party, and then he
would permit the handling of the items. John Kopp,
president of the Charging Party, informed Bickers that
this could not be done as he had a collective-bargaining
contract with Local 183 - a sister local of 141 in the
Sheet Metal Workers' International Association, as
aforestated. The testimony by Bauer in this respect is
corroborated by Wilford Rice, business agent of Local
183, who was also present at the second meeting.'
The Respondents introduced testimony through
Respondent Bickers bearing mainly on past and present
practices in the fabrication of pipe and elbows. Bickers
has been connected in one way or another with the sheet
metal trade for about 35 years. Bickers stated that when
he started in the trade the various shop made pipe and
elbows, but beginning in about 1960 there was a gradual
reduction from fabricating to the practice of buying such
items. According to Bickers, journeymen sheet metal
workers can and do fabricate adjustable elbows, stated
that contractors have the necessary 'equipment in their
shops to do this work, and Bickers has seen journeymen
make adjustable elbows Bickers also testified that in
preparation for trial, he witnessed the actual fabrication of
an adjustable elbow by a member of Local 141 in the shop
at Queen City Sheet Metal Company, and upon
completion he and Respondent Wonderly were able to
turn it He admitted that it takes approximately 45
minutes to make such an elbow, and without counting
materials it would cost around $4 for one man's labor to
make an adjustable elbow, and also admitted that
contractors can purchase the same size elbow for about 60
cents - so that it cost in the neighborhood of ten times as
much to fabricate it as contrasted to buying the item. At
the present time Bickers does not know of any supplier
other than United where contractors can purchase
adjustable elbows
Bickers stated that in all his discussions with
contractors relative to round pipe and adjustable elbows
- he never made any references to the requirement
'To complete the sequence of events - this record shows that on June 1,
1967, Local 141 went out on strike for about 4 weeks prior to the signing
of the new contracts effective in July It also appears there were interim
agreements signed by 32 contractors and therefore , Local 141 did not
strike these contractors.
LOCAL 141, SHEET METAL WORKERS 849
specifying a particular kind of union label,10 but told
employers "the prevailing rate of wages must be paid for
when subcontracting for prefabrication." He testified it
has been his consistent position since 1965, that members
of Local 141 will not handle adjustable elbows and round
pipe when these items are fabricated by employers who do
not pay prevailing rates.
In other aspects of this case - Bickers related that he
has never seen adjustable elbows or round pipe called for
in any specifications, that the $10,000 yearly average of
Corken's business in selling Ajax products between 1960
and 1964 - is a small dollar volume in contrast to the
amount of materials used in sheet metal industry, that in
April, he told Robert Jackson of Williams that the
prevailing rate of wages must be paid and did not say
anything about union labels, that in his conference with
Bauer he did not say Local 141 was going to suspend or
fine, and that at the second meeting he did not tell the
Charging Party they should put a Local 141 man on their
manufacturing line Bickers admitted a conversation with
Steward George Petzinger relative to three elbows at the
B. & J. plant, and informed ,Petzinger that the prevailing
rate of wages had to be paid.
Respondent Wonderly denied he ordered materials in
question off the hospital care project in May 1968, as
aforestated in the testimony by Wagner. Wonderly
testified he was only at this jobsite on one occasion and
that was when he took the photographs in evidence," that
there were no elbows on this job, and stated Respondent's
Exhibit No. 1 shows a flexible rubber tube or hose already
on this jobsite when he arrived, and therefore, he did not
object to any of the materials being used on the project.':
Wonderly explained that Respondent's Exhibit No. 5 is
also a photo he took at the hospital care jobsite on April
30, 1968, and shows a Pexto hand operated machine
which was set up with wheels for the "crimping" on small
ends of pipe and elbows."
Wonderly went on to testify that when he started in the
sheet metal trade many years ago, contractors made their
own round pipe and adjustable elbows, and stated that
sheet metal employers in Cincinnati have never stopped
fabricating some quantity of these items and especially in
heavier gauges. According to Wonderly, rigid elbows can
be made in many sections - 5 up to 13 - and a rigid
elbow is moveable before the seam is permanently fixed
by rivets or by welding, and testified a sheet metal worker
can weld a 24 gauge thickness. Wonderly also testified
that at the meeting with Bauer he did not remember
Bickers stating that a member of Local 141 should be
assigned to the manufacturing line of the Charging Party.
Section 8(e) of the Act reads as follows:
'"It appears that all labels on products involved herein, are issued by the
Sheet Metal Workers' International Association, and by looking at the
label it is impossible to tell which Sheet Metal Workers' local made the
item.
"See Resp Exhs. 1, 3, 4, and 5
"Wagner explained that the flexible tube or hose was material he had to
buy - and apparently he did so because of the objections in the use of
adjustable elbows purchased from the Charging Party Wagner stated that
he now has permission to use the flexible tubing in lieu of adjustable
elbows, but does not know the position of Local 141 on this practice
"Resp Exh. 3 shows 24 gauge 3 and 4 piece elbows in the sheet metal
shop of Langdon Incorporated, and Wonderly testified the elbows were
part of a job this employer was working on. Resp Exh. 4 shows a picture
of a Local 141 sheet metal worker fabricating an elbow Wonderly stated
he took this photo on May 1, 1968, at Queen City Sheet Metal Shop in
Cincinnati and the elbow was part of a job order.
It shall be an unfair labor practice for any labor
organizations 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.
Whether or not the aforementioned provisions in the
collective-bargaining agreements violate Section 8(e) of
the Act, is to be determined by the object of the restrictive
clauses or provisions in question. In this instance, as is
generally true in cases in which this section of the Act is
involved, "the distinction to be drawn as best one can is
between an object and a consequence."' 4 If the contractual
provisions in question had as their object the preservation
or protection of work traditionally and customarily
performed by employees in the bargaining unit, as the
Respondent Union contends, they may be held harmless;
but if instead they were designed to accomplish other
union objectives, as the General Counsel and the Charging
Parties assert, they are proscribed by the provisions of
Section 8(e).15
The credited evidence in this record is most conclusive
in showing that the employer - members of the
Cincinnati Sheet Metal Contractors Association and
others - including Feldkemp, B & J., and Williams,
normally and regularly purchase from mass production
manufacturers practically all of the items listed under
article VIII, section 3, except in those limited situations
wherein emergency conditions existed, or where special
small and irregular sizes of pipe or other listed items are
required, and such products were not readily available
from the Manufacturer. The General Counsel offered
credited and reliable testimony through numerous
witnesses in establishment and in amplification of these
facts, as previously noted herein. The Respondent Union
then attempted to refute this evidence by testimony of its
own witnesses, but in my opinion failed to do so. In
essence, Bicker's own testimony reveals that as early as
1960, the fabrication of the main items in question
reached a standstill, and because of cost and other
' 'Houston Insulation Contractors v. N L R. B., 357 F 2d 182, 187 (C A.
5), reversed in part on other grounds, 386 U S. 664
"National Woodwork Mfg Assn. v. N.L R B., 386 U S. 612
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considerations the contractors then consistently adopted
the practice of buying such items. Bickers stated that he
recently witnessed the making of one adjustable elbow.
However, this in no way substantially detracts from the
total evidence in this record which conclusively shows that
the item was normally purchased, and his observation in
seeing an elbow fabricated, in preparation for trial, will
not and cannot refute the overwhelming evidence produced
by the General Counsel. Furthermore, Bickers then
admitted he knows of no one who fabricates this item in
the Cincinnati area, and United in Columbus is the only
supplier where it can be purchased without his protest. In
attempts to minimize the need or use for adjustable
elbows Bickers ventured he has never seen this item
written into specifications, and throughout the record and
in arguments, there is constant references by the
Respondent Union in efforts to sustain their contention
that rigid elbows are just as adequate and practical.
However, Feldkemp, Wagner, and others gave sufficient
and detailed accounts on the real needs and uses for this
product, as aforestated, and without its immediate
availability the resulting consequences has been a
curtailment in their bidding on certain types of projects.
In several situations the General Counsel was successful in
establishing that rigid and adjustable elbows are not
interchangeable for competitive purposes, as aforestated.
The testimony given by Wonderly directly implies that
contractors never stopped fabricating round pipe and
adjustable elbows, but a closer look shows to the contrary
and the real impact of his testimony was actually directed
to the fabrication of items in the heavier gauges, and
admittedly this practice continues as mass production
machinery or equipment is not designed to turn out the
heavy gauge material and must be specially made. Some
emphasis is placed on the photographs Wonderly took in
attempts to verify the contention and testimony that
constructors in the Cincinnati area were fabricating
elbows, but in view of the abundance of reliable testimony
that such was not the normal practice, the only significant
valuations I can attach to the pictures is that Langdon
Incorporated happened to have an adjustable elbow in its
shop - there is no testimony as to where it came from,
that Queen City Sheet Metal must have fabricated this
item for a special job, and the photographs marked as
Resp Exh. 1 and 5 merely reveal that Wagner or Sheet
Metal Engineering Company had to use flexible hose as a
substitute for adjustable elbows due to the continual
objections and obstructions from Local 141.
In essence, what is directly relevant in this case, and
others like it, is whether employees in the unit customarily
and traditionally fabricated round pipe and adjustable
elbows and the other items listed in article VIII, section 3,
and did the contractors assign such tasks to their
employees in the general or normal course of their
business. I submit this record clearly shows that nearly all
the items were normally purchased, and employees only
fabricated these items, with the possible exception of
louvers and ducts, in situations where unusual or
emergency work conditions existed, and, therefore, I
cannot find the fabrication of these materials to be
claimable unit work. I conclude that the work which was
subject to the contractual provisions here in question was
not traditionally and customarily performed by the
employees, and the object of the restrictions so imposed
was not the preservation of unit work.
In National Woodwork Mfg. Assn., supra, the
carpenters had a contract with the Frouge Corporation
which provided that they would not handle doors which
had been fitted prior to being furnished on the job. Frouge
had purchased, and sought the Union to - install,
premachined doors manufactured by National Woodwork.
The Union ordered its carpenter members not to hang the
doors. Frouge withdrew the prefabricated doors and
substituted doors that were satisfactory to the Union. The
question was whether the Union had committed an unfair
labor practice under Section 8(e) of entering into an
"agreement . . whereby the employer . . . agrees to or
refrain from handling . . . any of the products of any
other employer .. ." A majority of the court stated that
the Union had not done so because it was preserving work
which had been traditionally that of the union members.
However, Mr. Justice Brennan's opinion, speaking for
four members of the courts, contained the following:
The determination whether the `will not handle'
sentence of Rule 17 and its enforcement violated
Section 8(e) and Section 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. Were
the latter the case, Frouge, the boycotting employer,
would be a neutral bystander, and the agreement or
boycott would, within the intent of Congress, become
secondary. There need not be an actual dispute with the
boycotted employer, here the door manufacturer, for
the activity to fall within this category, so long as the
tactical object of the agreement and its maintenance is
that employer, or benefits to other than the boycotting
employees or other employees of the primary employer
thus making the agreement or boycott secondary in its
aim. The touchstone is whether the agreement or its
maintenance is addressed to the labor relations of the
contracting employer vis-a-vis his own employees.
The concurring opinion of Mr. Justice Harlan stated:
The facts as found by the Board and the Court of
Appeals show that the contractual restrictive-product
rule in question, and the boycott in support of its
enforcement, had as their sole objective the protection
of union members from a diminution of work flowing
from changes in technology. Union members
traditionally had performed the task of fitting doors on
the jobsite, and there is no evidence of any motive for
this contract provision and its companion boycott other
than the preservation of that work. This, then, is not a
case of a union seeking to restrict by contract or
boycott an employer with respect to the products he
uses, for the purpose of acquiring for its members work
that had not previously been theirs.
In applying the guidelines of National Woodwork to
the instant case, it appears to me that the refusal on the
part of Local 141 to handle the products in question of
the Charging Party and other was not addressed to labor
relations of the contracting employer vis-a-vis his own
employees. Nothing herein required Feldkemp, B. & J.,
Williams or others to do anything different with their
employees. As pointed out, the Respondent Union simply
forced a charge in the source of supply. Furthermore,
under the guidelines of National Woodwork the objectives
of the Respondents must also be preservation of work for
the employees of Feldkemp, B. & J., and Williams -
employees of the employer on whom pressure is being
applied. Moreover, in addition to what I ' have already
found in this respect, Respondent Bickers admitted that
LOCAL 141, SHEET METAL WORKERS
article VIII, section 3 is in his contracts negotiated by
Local 141, because "it is set up" under the standard form
of union agreement between the Sheet Metal Workers'
International Association and the Sheet Metal
Contractors International Association. Bickers then went
on to state that when article VIII, section 3, refers to
production wage rates it is "talking about" production
rates established by the Sheet Metal Workers'
International Association, and if a contractor purchased
pipe from a manufacturer who did not pay the prevailing
rate whatever the production wage rate is in the area
where fabricated - he would file a grievance under article
X of the standard form of union agreement. Thus, it
appears the standard applied by Local 141 is the
production rate where manufactured, and obviously if this
rate is met contractors may then buy from any supplier in
the United States no matter where their fabricating site
might be located.
As previously noted herein, there is some testimony
that employers involved have started making round pipe
as a result of their difficulties with Local 141. However,
this too is violative of National Woodwork, as Local 141
is restricting by boycott or contract an employer, and
products he uses, for the purpose of acquiring for union
members work that had not been previously theirs. In
essence , the Respondent Union has been encouraging or
pushing the sale of products made by United Sheet Metal
in Columbus, and certainly this cannot be interpreted to
help in any way work preservation of Feldkemp, B. & J.,
and Williams employees. The boycotting employees
gained no benefits from their refusal to install products
manufactured by the Charging Party and others nor did
fellow employees of their respective employers. It is not
enough that such benefits were reaped by employees of
another employer, United Sheet Metal and who happen to
be members of the same International, to avoid liability
from Section 8(b)(4)(B).16
The discussion above and the total evidence in this
record clearly demonstrates an object to benefit union
members generally, and are tactically calculated to satisfy
union objectives elsewhere, and are not "addressed to the
labor relations of the contracting employer vis-a-vis his
own employees" which the Supreme Court has said is
"the touchstone" in determining the validity. The
language in article II, section 2, and article VIII, section
3, must be regarded as strong indications that the
underlying purpose was to require that the employers
abandon their former practice of purchasing the items in
the open market, and to require that they must buy such
items only from employers paying the wage standards that
the agreement specifically provides. Such a limitation,
when considered in conjunction with all the circumstances
and representations, speaks in terms of secondary control
and not primary unit protection. Furthermore, what has
been said regarding adjustable elbows and round pipe
applies with equal reasoning to the other items listed in
article VIII, section 3. The employees of the contractors
have seldom fabricated such articles. Instead, they have
always purchased them from manufacturers with few
exceptions. Bickers stated that none of the other items
listed in article VIII, section 3, other than round pipe and
adjustable elbows - items I and 6 - present any
problems, and by his interpretation of the contracts he
would not restrict any contractor in purchasing such items
from whomever he pleased even if the manufacturer was
"It is conceded by the Respondent Union that United is not includable
in the area work unit
851
paying a minimum wage in their fabrication. However,
regardless of whatever interpretation Bickers gives to these
remaining items - they most assuredly must be
considered as items wholly inclusive and all overlapping or
interlocking within the scope of article VIII, section 3,
and are inseparable for purposes here as they are fully
implemented and embodied within the clauses under
consideration. The admission by Bickers that his
enforcement procedures on items 1 and 6 resulted from a
decision of the National Joint Advisory Board in 1965, as
aforestated, bespeaks again of the specific containment
within the standard form of the union agreement, and
indicates control from the Union' s International Association
with a definite objective to benefit union members
generally. And this is true even though Local 141 itself
negotiates the rates contractors within its jurisdiction will
pay, since the general framework and requirements for
such rates are specified in the standard form of union
agreement. In further amplifications to the remaining
items listed in article VIII - Bickers finally agreed that
he has not decided what the rest of this provision means.
From the above it is readily apparent that if article VIII
or any portion of it is allowed to stand, Local 141 could
at any time enlarge its present interpretations and
overnight place the same demands on all items.
The Respondent Union also produced some testimony
bearing on the small percentage of elbows and round pipe
in the overall costs and construction of sheet metal work
in the erection of various commercial buildings."
However, I am not aware of any Board or court decision
wherein any standards of minimum or deminimus
percentage figures are relied upon in determination of
whether or not a union can continue to claim its work
preservation rights under such circumstances.
In the final analysis, I have found that the fabrication
of the eleven items as an overall practice, to be neither
unit work nor fairly claimable as unit work. Article II,
section 2, and article VIII, section 3, then are not aimed
at unit preservation, and if their thrust serves no
cognizable primary unit purpose then it is only reasonable
to conclude that the aim is a secondary one Accordingly I
find article II, section 2, and article VIII, section 3, to
envisage no direct benefits to unit employees, but are
designed to disrupt established business relationships
between employers and their suppliers, and thus to have a
secondary thrust which makes it unlawful within the
meaning of Section 8(e) of the Act.'8
In a brief recapitulation, the evidence reveals that in
January or February, again in the spring of 1967, and
again in May or June, B. & J. were told by Local 141
that certain materials were not acceptable because of
noncompliance with the rates under article VIII, section 3,
"Residential work is not in issue here, since contractors engaged in such
work can buy from any manufacturer.
"In Local Union No. 26, Sheet Metal Workers' International
Association , 168 NLRB No. 118, the Board affirmed a finding that article
VIII, section 3, involved in the instant case was in violation of the
secondary boycott provisions of the Act . It is noted in Local Union No.
26, supra, there was no finding that article II, section 2 was violative of the
Act, because there was no proof that it had been used to switch sources of
supply that historically had not been that of the sheet metal workers in the
work unit involved . The evidence in the instant case r that as regards
contractors in the Cincinnati area, article II, section 2, has been so used
See also Sheet Metal Workers Union Local 216 , 172 NLRB No. 6,
involving the same contract provisions - article II, section 2, and article
VIII, section 3 - and wherein the Board also affirmed a finding that these
provisions were violative of the Act Article II, section 2 in the instant case
takes on an unlawful connotation when considered in conjunction with
article VIII, section 3.
85 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as aforestated. In April, Williams was informed that they
could not use certain items at their construction site due
to. noncompliance with article VIII, section 3, and in the
spring of 1967, Feldkemp was notified of objections from
Local 141 in the installation of Flue pipe, and in May
1968, Sheet Metal Engineering Company could not
complete installations because of objections from the
Respondent Union. While the May 1968, incident was not
specifically alleged in the complaint and took place
subsequent to the filing of the complaint - the same was
fully litigated at the hearing. The two conferences between
officials for the Charging Party and officials of the
Respondent Union in May, as previously mentioned
herein, must also be regarded as general corroboration in
the establishment of the explicit incidents relied upon.
The above conduct and statements attributed to agents
of Local 141 constituted, in several instances, an
inducement to employees of B. & J. and Feldkemp, and
others in violation of Section 8(b)(4)(i) (B) of the Act, and
especially so in the statement by Wonderly that if Sheet
Metal Engineering Company made certain installations
they "would regret it."i' This record conclusively shows
that such conduct on the part of the Respondents was
specifically intended and calculated to induce work
stoppages by employed individuals. The remaining
statements by agents of the Respondent Union, as set
forth and detailed earlier herein, must be deemed as
threats or coercion to persons engaged in commerce and
forcing or requiring ahem to cease handling, transporting,
or otherwise dealing in the products of other producers,
and violative of Section 8(b)(4)(ii)(B) of the Act. The
Board has repeatedly held that the threat of economic
retaliation is the type of restraint or coercion of employers
which Congress intended to reach by enactment of this
Section of the Act This conduct on the part of the
Respondents cannot be classified as nonthreatening
statements since the resulting circumstances from such
remarks show that Williams had to return certain
materials - B. & J. and Sheet Metal Engineering
Company had employees who refused to make
installations and have had to substitute items on jobsites
and Glenway Sheet Metal and Feldkemp have had to
restrict their bidding on different type jobs where certain
materials are necessary. In essence, by this conduct
throughout the critical period involved herein,
Respondents have consistently and repeatedly insisted
upon the provisions of article VIII, section 3, which is
unlawful under Section 8(e) of the Act, and they thereby
violated Section 8(b)(4)(i), (ii)(A) and (B) of the Act
IV. THE REMEDY
Having found that the Respondents have engaged in
unfair labor practices, it shall be recommended that they
cease and desist therefrom and take certain affirmative
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. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act, and at all times
material herein Respondent Bickers and Respondent
Wonderly have been agents of Respondent Union acting
in its behalf within the meaning of Section 2(13) of the
Act.
2. The Charging Party, Feldkemp, B. & J., and
Williams are employers within the meaning of Section
2(2) of the Act and are engaged in commerce within the
meaning of Sections 2(6),(7)and 8(b)(4) of the Act.
3. By engaging in conduct with an object of forcing or
requiring Feldkemp,, B. & J. and Williams to agree to or
to enter into an agreement containing article II, section 2,
and article VIII, section 3 - prohibited by Section 8(e) of
the Act, Respondents have engaged in unfair labor
practices within the meaning of Section 8(b)(4)(i), (ii)(A)
and (B) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[RECOMMENDED ORDER omitted from
publication.]
"The terms induce or encourage, found in Section 8(b)(4)(i ), have been
consistently construed as broad enough to include in them every form of
influence and persuasion . International Brotherhood of Electrical Workers.
Local 501 v . N.L.R B , 341 U.S 694, 701-702 The Board has stated that
inducement or encouragement need not be successful to violate the Act