Local 5, United Association of Journeymen, Etc.

National Labor Relations Board - Board Decisions

Jun 26, 1962

137 N.L.R.B. 828 (N.L.R.B. 1962)

828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. All wholesale driver-salesmen , including relief drivers and special drivers,
employed by Respondent, but excluding inside dairy workers, office employees,
supervisory employees , executives , and professionals as defined in the Act, constitute
a unit appropriate for purposes of collective bargaining within the meaning of
Section 9( b) of the Act.
4. At all times material herein, the Union has been the exclusive bargaining repre-
sentative of the employees in the aforesaid unit within the meaning of Section 9(a)
of the Act.
5. By engaging independent distributors to take over the routes of its driver-
salesmen and by terminating the employment of its driver-salesmen , all without prior
notice to, or consultation or bargaining with, the Union, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(5)
and (1 ) of the Act.
6. By taking the foregoing actions without complying with the requirements pre-
scribed in Section 8(d) of the Act, Respondent has further violated Section 8(a) (5)
and (I) of the Act.
7. By discriminatorily terminating the employment of its driver-salesmen in the
manner set forth above, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (3) and (1) of the Act.
8. Inasmuch as Respondent's operations affect commerce , the aforesaid unfair
labor practices affect commerce within the meaning of Section 2( 6) and (7) of the
Act.
[Recommendations omitted from publication.]
'Local 5, United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States
and Canada , AFL-CIO and Arthur Venneri Company. Case
No. 5-CC-124. June 26, 1962
DECISION AND ORDER
On November 30,1960, Trial Examiner Louis Plost issued his Inter-
mediate Report in the above-entitled proceeding, finding. that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the Intermediate Report attached hereto. There-
after, the General Counsel, the Respondent, and the Charging Party
filed exceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions :
The evidence establishes that Arthur Venneri Company (herein-
after called Vemieri) was awarded a contract by the U.S. Corps of
Engineers for the construction, inter alia, of two hangars at the
Andrews Air Force Base in Maryland; that Venneri entered into a
• subcontract with Akron Mechanical Contractors, Inc. (hereinafter
called Akron), for the inside plumbing work, and a subcontract with
:Nickles Bros., Inc. (hereinafter called Nickles), for the outside plumb-
.137. NLRB No.. 10G.. , , .
LOCAL 5, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 829
ing work; and that Akron and Nickles entered into collective-
bargaining contracts with Respondent and the Hod Carriers, respec-
tively, for the workers who would be employed to perform the work.
Respondent claims jurisdiction over both the inside and outside
work, and Respondent objected to the fact that Venneri had awarded
the outside plumbing work to Nickles, with whom Respondent had no
contract, rather than to Akron or some other employer under contract
with Respondent. Respondent engaged in a course of action designed
to force or' require Akron to cease doing business with Venneri, and
to force or require the U.S. Corps of Engineers to cease doing business
with Venneri, and to force or require Venneri to cease doing business
with Nickles. The Trial Examiner found, and we agree, that Re-
spondent violated Section 8(b) (4) (i) and (ii) (B) of the Act.
As to the specific conduct which is alleged to have violated Section
8(b) (4) (i) (B), the Trial Examiner found, and we gree, that the
Respondent induced and encouraged employees of Akron to refuse,
inter alia, to handle materials or fabricate pipe destined for Venneri
at the two hangar projects. For example, during both the 10(l) in-
junction proceeding 1 and the hearing before the Trial Examiner, Cecil
Rhodes, business manager of Respondent, testified as to certain specific
oral instructions which were intended to, and did induce its members
to refuse to handle or work on pipe or perform services for Grunley-
Walsh, another contractor engaged in construction work on the "Mis-
sion Project" at the Andrews Air Force Base. Akron was the sub-
contractor for Grunley-Walsh and Akron utilized Respondents'
members to perform work at the "Mission Project" site . Rhodes testi-
fied that he, as an officer of Local 5, "had instructed the men on the
Grunley-Walsh job . . . not to fabricate any pipe that was to be
moved over to the Venneri jobs." Rhodes also testified that he had a
telephone conversation with John Martin, foreman at the Grunley-
Walsh site and business manager of Steamfitters, Local 602,2 and that
Martin agreed to meet Rhodes at the Grunley-Walsh site the following
Monday morning. Pursuant to that phone conversation, Rhodes and
Martin met at the Grunley-Walsh project and Martin there instructed
the steamfitters that they were not to move any pipe destined for
Venneri, that "they are not to handle any work that belongs to your
jurisdiction, the plumbers, and that ... they are not to go on [the
Venneri] jobs either." Thereafter, in accordance with the Re-
spondent's foregoing and prior instructions, Respondent' s members re-
fused to unload, move, or fabricate pipe which was delivered to the
'At the hearing, before the Trial Examiner, the parties stipulated that the testimony of
Messrs Rhodes, Grossman , and DeChard , contained in the transcript of proceedings
developed in the 10 ( 1) injunction proceeding ( Penello v Local 5, United Association of
Journeymen, etc (Arthur Venneri Co.), Civil Action 1773-G0, 46 LRRM 2740), be con-
sidered as evidence in the instant proceeding
2 Rhodes testified that Local 602 of the Steamfitters is affiliated with the same Inter-
national Union as is Local 5, the Respondent herein
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grunley-Walsh site. In agreement with the Trial Examiner, we find
that, inter alia, by engaging in the foregoing conduct for the afore-
mentioned objects the Respondent violated Section 8(b) (4) (i) (B) of
the Act.
The Trial Examiner further found that by refusing to refer men
to Akron, the Respondent violated Section 8(b) (4) (i) and (ii) (B) of
the Act. We agree that by refusing to refer plumbers to Akron as
.provided in the Respondent's agreement with Akron, for the afore-
mentioned objects, the Respondent coerced and restrained Akron in
violation of Section 8(b) (4) (ii) (B) of the Act.3 However, we find it
unnecessary to pass upon the question whether this conduct also
violated Section 8 (b) (4) (i) (B) since, in view of our finding that such
refusal constitutes restraint and coercion within the meaning of (ii),
the remedy for that violation will adequately remedy Respondent's un-
lawful conduct.'
Our dissenting colleagues, Members Fanning and Brown, take issue
with our resolution of the instant case, but on separate grounds. Mem-
ber Brown would dismiss the complaint in its entirety whereas Mem-
ber Fanning believes that any final determination herein is premature.
More specifically, Member Brown takes the view that the dispute
herein was one solely between Respondent and Akron over section 32
of their contract which provided, in substance, that a contractor, here
Akron, was not "to contract for a job where plumbing work has been
withheld from the plumbing contract by either the owner or the gen-
eral contractor for the purpose of being installed by other than jour-
neymen plumbers and their apprentices." He concludes, therefore,
that Respondent's conduct was protected primary activity solely de-
signed to redress Akron's breach of that section.
We do not agree. By the clear and explicit terms of section 32,
Akron, as a subcontractor, was required to obtain from the general
contractor, Venneri, assignment of all the so-called plumbing work
involved-inside work as well as outside work. There is no question
as to the section's intendment. Clearly, its purpose is to provide
maximum employment opportunity for Respondent's members.
Accordingly, when Venneri awarded the outside work to Nickles
Bros., Respondent's members were denied this work and at the same
time Respondent was also deprived of exclusive control of the flow
of plumbers to the job, which section 32 was designed to ensure. If
control of these strings of employment were reposed with Akron,
there would then be some basis for our colleagues' position. However,
s Local 756 , International Brotherhood of Electrical Workers, et al. (The Martin Com-
pany ), 131 NLRB 1010.
4In agreement with the Trial Examiner , Member Rodgers would also find that Respond-
ent's refusal to refer craftsmen to Akron Mechanical Contractors, Inc , for the previously
found objects, constitutes inducement and encouragement of individuals within the mean-
ing of Section 8(b) (4) (s ) (B) of the Act.
LOCAL 5, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 831
the control and allocation of plumbing assignments lay not with
Akron but with Venneri-and Venneri was in no way bound by, or
required to give effect to, the provisions of section 32. Indeed, as
Akron was powerless to effect the result which Respondent sought,
namely an assignment to itself of the outside plumbing work, it is
difficult to conceive what effect Respondent's conduct was designed to
produce other than to force Venneri, et al., to sever relations with
Nickles Bros. and reassign this outside work to Akron. That Venneri
was the target of Respondent's conduct, as found by the Trial Exam-
iner, is also demonstrated by the evidence of its previous controversy
with Venneri over such subcontracting to Nickles on the Library of
Medicine project, and by Respondent's telephone calls to, and in the
conference of February 15, 1960, with, Venneri about the Andrews Air
Force Base jobs to persuade Venneri not to make or to carry out sub-
contracts with Nickles for the outside plumbing work.
In his dissent Member Brown apparently seeks to analogize the
contract between Akron and Respondent to a contract containing a
lawful clause against subcontracting, that is, a clause intended to pro-
tect incumbent employees from the loss of present work by subcon-
tracting out such work to another employer. The clause in question
is not such a clause. It looks not to protecting the work that present
employees are doing, but to obtaining work in the future for "journey-
men plumbers and their apprentices." Moreover, the fact that such a
clause may be legal, a question which we do not decide as it is not
before us, does not make lawful conduct which, in the absence of such
a provision, is prohibited by statute, any more than the then-lawful
"hot cargo" clause in the Sand Door case was a defense to secondary
boycott activity aimed at securing compliance therewith. Local 1976,
United Brotherhood of Carpenters, etc. (Sand Door c6 Plywood Co.)
v. N.L.R.B., 357 U.S. 93
Member Fanning, as already indicated, would not dismiss the com-
plaint herein. Rather, he would defer decision in this proceeding "be-
cause there is now pending before the Board a proceeding under Sec-
tion 10 (k) of the Act in which it is alleged on the very same record
that an unresolved [jurisdictional] dispute exists between the
parties . . ." We reject the view that the pendency of the Section
10(k) proceeding precludes the Board from deciding the instant case.
The instant case presents the question of whether Respondent engaged
in unlawful secondary activity; it does not involve the question of
whether Respondent has a valid jurisdictional claim to disputed work.
Phrased in other terms, Sections 8 (b) (4) (D) and 10 (k), on the one
hand, and Section 8(b) (4) (B), formerly 8(b) (4) (A), on the other,
serve wholly separate and distinct functions. Section 8(b) (4) (D)
makes unlawful certain union activities designed to compel an em-
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer to change. his assignment of work. The basic objective of Sec-
tion 8(b) (4) (B), however, is to confine the particular dispute to the
immediate disputants and to shield secondary employers or "neutrals"
to the controversy. Hence, while it is true that under Section
8 (b) (4) (D), both primary and secondary activity for the assign-
ment of disputed work are proscribed when the claiming union is not
entitled to the work, it does not follow that because the claiming union
may be entitled to the work, it may lawfully engage in both primary
and secondary activity in furtherance of its claims. This is so
because, so far as Section 8(b) (4) (B), or its predecessor provision
in Section 8(b) (4) (A), is concerned, the only question is whether the
pressure exerted is primary or secondary ; and in the context here, the
Union's ultimate goal is not a matter for consideration under that
section.
Thus, in the instant case, assuming that Respondent had a valid
claim to the plumbing work in dispute, it could take primary action
against the employer who had this work to assign.' It could not, how-
ever, take action against Akron which could not assign the work and
hence was a neutral in the controversy. Insofar as Respondent sought
to bring about a cessation of business by Akron, a neutral, its activity
had a proscribed object within the meaning of Section 8 (b) (4) (B)
of the Act. And the fact that its conduct might also have had a legiti-
mate objective under Section 8(b) (4) (D) does not exonerate it.6
It is upon precisely such considerations that the Board has uni-
formly rejected arguments such as that here advanced by our dissent-
ing colleague, that the "secondary boycott" provisions and the Section
8 (b) (4) (D) provisions are mutually exclusive. Northwest Heating
Company, 107 NLRB 542, 548-549; Wendnagel c Company, 119
NLRB 1444, 1447, enforcement denied on other grounds 261 F. 2d 166
(C.A. 7) ; Acousti Engineering of Alabama, Inc., 120 NLRB 212, 213.
And compare also, Retail Clerks Union Local 770, etc. v. N.L.R.B. and
United States Hardware and Paper Company, et al., 296 F. 2d 368,
375 (C.A.D.C.).
We reject the argument here also and adhere to our determination
that Respondent violated Section 8 (b) (4) (B) of the Act as heretofore
found.
s For purposes of this proceeding , we need not , and do not , pass upon the question
whether in the context of a Section 10(k) proceeding Nickles or Venneri would be re-
garded as the employer who had the work to assign , or to define the permissible limits of
primary activity for the assignment of such work For, in any event , it is clear that
Akron did not have the power or authority to assign the work in dispute to Respondent
fi N L R.B. v Denver Building if Construction Trades Council , et at. ( Gould & Pi eisner),
341 US 675, 689 Member Fanning's view concerning the nonneutrality of a general
contractor and his subcontractors is seemingly at odds with the view of the Supreme Court,
as expressed in that case.
LOCAL 5, UNITED ASSOCIATION OF JOURNEYMEN , ETC. 8331
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor-
Relations Board hereby orders that the Respondent, Local 5, United
Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL-CIO, its
officers, agents, representatives, successors, and assigns, shall :
1. Cease and desist from :
(a) Engaging in, or inducing or encouraging employees of Akron
Mechanical Contractors, Inc., or of any person engaged in commerce-
or an industry affecting commerce, to engage in, a strike or refusal'
in the course of their employment to use, manufacture, process, trans-
port, or otherwise handle or work on any goods, articles, materials, or-
commodities or to perform any services where an object thereof is to
force or require Akron Mechanical Contractors, Inc., or any other
employer or person to cease doing business with Arthur Venneri Com-
pany, or to force or require Arthur Venneri Company or any other
person to cease doing business with Nickles Bros., Inc.
(b) Threatening that it will not refer or otherwise furnish indi-
viduals for employment to Akron Mechanical Contractors, Inc., or-
any other person engaged in an industry affecting commerce, accord-
ing to the provisions of an applicable contract, or refusing to refer
such individuals for employment, in order to force or require Akron
Mechanical Contractors, Inc., or any employer or other person to•
cease doing business with Arthur Venneri Company, or to force or
require Arthur Venneri Company or any other person to cease doing
business with Nickles Bros., Inc.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in the Respondent's business offices and meeting halls,
copies of the notice attached hereto marked "Appendix." 7 Copies of
said notice, to be furnished by the Regional Director for the Fifth
Region, shall, after being duly signed by the Respondent's authorized
representative, be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter,,
in conspicuous places, including all places where notices to members
are customarily posted. Reasonable steps shall be taken to insure
that such notices are not altered, defaced, or covered by any other
material.
(b) Furnish to the Regional Director for the Fifth Region signed
copies of the notice attached hereto marked "Appendix," for posting
by Akron Mechanical Contractors, Inc., and Arthur Venneri Com-
7In the event that this Order is enforced by a decree of a United States Court of'
Appeals, there shall he substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
649856-63-vol. 137-54
,834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany, they being willing, at places where they customarily post notices
to their employees.
(c) Notify the Regional Director for the Fifth Region, in writing,
within 10 days from the date of this Order, what steps have been
taken to comply herewith.
MEMBER FANNING, dissenting :
I would not decide at this time that the Respondent Union has vio-
lated Section 8(b) (4) (i) and (ii) (B) of the Act because there is
now pending before the Board a proceeding under Section 10(k) of
the Act in which it is alleged on the very same record that an unre-
solved dispute exists between the parties which the Board is "directed
to hear and determine" unless the parties indicate that they have
agreed to a "voluntary adjustment" of such dispute. In finding that
Respondent has engaged in an unlawful secondary boycott the ma-
jority, in effect, has prejudged Respondent's jurisdictional claim to
the disputed work, which must be litigated under Sections 10(k) and
8(b) (4) (D). It would be a meaningless gesture to hold in the subse-
quent 10(k) decision that Respondent was entitled to the work for
which it was striking when it has already been enjoined from engag-
ing in such activity. Indeed, the majority decision in the instant case
precludes a "voluntary adjustment" of the dispute by the parties al-
though this method is a means selected by Congress for the resolution
of a jurisdictional dispute.
I would decide the 10(k) proceeding first and determine whether
the facts in that case, which are identical to those in this case, raise
the issue of a jurisdictional dispute governed by Sections 10(k) and
8(b) (4) (D).
The majority contends, however, that the instant case "does not
involve the question whether Respondent has a valid jurisdictional
claim to the disputed work." Nevertheless, the majority finds it neces-
sary to assume the validity of Respondent's claim in order to hold that
the instant strike, even under that assumption, would not be lawful
activity in accord with the Board's own determination of the under-
lying dispute. Presumably, this strike would still be unlawful under
Section 8(b) (4) (B) if all the parties involved had voluntarily settled
their dispute in favor of the striking Union. It is the position of the
majority that under Section 8 (b) (4) (D) a union may be prohibited
from engaging in "both primary and secondary activity," but that the
converse is not true, i.e., the union may not "lawfully engage in both
primary and secondary activity in furtherance of its claim." The
majority concedes that where the claim is valid the Union "could take
primary action against the employer who had the work to assign."
The distinction drawn by the majority cannot be deduced from the
literal language of Sections 10(k) and 8(b) (4) (D) ; nor is there
LOCAL 5, UNITED ASSOCIATION OF JOURNEYMEN , ETC. 835
legislative history to support such an interpretation . The rationale
offered to the effect that Section 8(b) (4) (B ) concerns itself with the
question "whether the pressure exerted is primary or secondary" is
not much help. I take it this means that secondary activity prohibited
under the latter section cannot be guaranteed under the former. How-
ever, other sections of the Act , specifically Section 8 ( a) (3) and 8(b)
(2) forbid certain primary activity as clearly as Section 8(b) (4) (B)
forbids secondary . If secondary activity is not permissible in further-
ance of a valid claim, why is primary activity, otherwise unlawful,
protected?
The inconsistency of the majority 's position arises , I think, from
the difficulty of enforcing Sections 10 (k) and 8 ( b) (4) (D), unique pro-
visions of this Act, consistent with other, and sometimes conflicting,
provisions of the same Act. It would hardly fulfill the congressional
purpose of settling jurisdictional disputes through Board proceedings
or voluntary adjustment to hold, on the one hand , that a meritorious
charge under Section 8 ( b) (4) (D) would be sufficient to enjoin all
strikes for work assignments , but that an award of the disputed work
to the striking union would not necessarily permit that union to con-
tinue its activity found lawful under this section . The Supreme
Court , presented with this dilemma as it affected primary activity,
expressed the view that the Board would discharge its duties under
Section 10 (k) "in a manner entirely harmonious with those Sections
[8(a) (3) and 8 (b) (2)]." Radio ct Telegrapher s, Broadcast Engineers
Local 1012, etc. v. IY.L.R.B. (Colum bia Broadcasting System) 364 U.S.
573. - The 'Court expressed no -view of the possible conflict with Sec-
tion 8 (b) (4) (B), but presumably it anticipates a similar "harmoni-
ous" interpretation . Such harmony cannot be achieved by a mechan-
ical application of the terms primary and secondary when applying
the provisions of 8(b) (4) to employers involved in jurisdictional
disputes in the building and construction industry . Clearly where
the struck secondary employer is a stranger to the jurisdictional dis-
pute and is unnecessarily enmeshed in a controversy over work as-
signment in which it has no interest or concern , a proper accommoda-
tion between Sections 10 (k) and 8 ( b) (4) (D) and Section 8 (b) (4) (B)
would indicate that the latter prohibition should prevail. See my
separate view in Acousti Engineering of Alabama, Inc., 120 NLRB
212, 213. However, where the underlying jurisdictional dispute re-
alistically involves the struck secondary employer by reason of his
performance of the type of work involved in the dispute on the
project," the provisions of 8(b ) (4) (B) must give way to those of
8 A jurisdictional dispute on a construction project necessarily involves all subcontractors
performing the same type of work and the general contractor who has engaged their
services, because the ultimate resolution of the dispute will, as a practical matter, affect
the right of each of them to assign the work of the trade or craft in the same way.
836 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
10(k) and 8(b) (4) (D) so that the jurisdictional dispute can be re-
solved in a manner consistent with congressional intent .9
As indicated above, I need not and do not decide in this case whether
these facts present a true jurisdictional dispute. Such a decision, in
my opinion, should properly be made in the 10 (k) proceeding now
before the Board. If that provision of the amended Act, an entirely
novel and different approach for the regulation of union conduct as it
affects employers and employees, is to be effectuated as intended by
Congress, it must, where applicable, be a substitute for, rather than
an addition to, other prohibitions and limitations on the conduct of
unions. Accordingly, under my view, a decision that the strike in this
case in an unfair labor practice under Section 8(b) (4) (B), would
require that I find this particular strike not cognizable under Sections
10(k) and 8(b) (4) (D) because the secondary boycott prohibition is
absolute and cannot be affected by voluntary agreement of the parties
or Board determination of the underlying dispute. I am not prepared-
to hold in the instant case that the facts clearly demonstrate the ap-
plicability of Section 8(b) (4) (B) rather than Section 10(k). I note
that it is customary in the construction industry for a general con-
tractor to assign the work of craft employees by subcontracting to
other employers rather than employing craft employees itself. In,
these circumstances a decision that a craft union cannot strike its im-
mediate employer over the assignment of work on the same construc-
tion project necessarily means that virtually all strikes of this nature
in the construction industry are prohibited by this Act. Yet, this
was the industry with which Congress was most concerned in enacting
the special provisions of Sections 10(k) and 8(b) (4) (D).
MEMBER BROWN, dissenting :
This case, in my opinion, should not be difficult to resolve, once
the relationship and conduct of the interested parties are viewed in
context. To this end, the factual recital follows.
Respondent is a local union of the United Association of Journey-
men and Apprentices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL-CIO. Its geographical jurisdic,
tion includes Virginia, Maryland, and the Washington, D.C., metro-
politan area. Within this area Respondent has claimed jurisdiction
over all the plumbing, pipe, and related work including the laying
and installation of nonmetallic pipe. A majority of "mechanical con-
tractors" who perform pipe and plumbing work of every description
both inside and outside buildings in the Washington area are mem-
9In all cases where the underlying dispute is a true jurisdictional dispute, I would,-
make the necessary accommodation by excluding, from the concept of secondary or neutral
employer, all subcontractors on a particular construction project, who are engaged in
performing work in the particular trade or craft involved in the dispute , and the general-
contractor.
LOCAL 5, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 837
bers of the Mechanical Contractors District of Columbia Associa-
tion, Inc., herein called Association, which has a collective-bargaining
agreement with Respondent. Some nonmember mechanical contrac-
tors are also signatories to such agreement. All of these agreements
contain the provisions of section 32 of article 17 (herein called section
32) which provides as follows :
It shall be a violation of this agreement for any contractor to con-
tract for a job where plumbing work has been withheld from the
plumbing contract by either the owner or the general contractor
for the purpose of being installed by other than journeymen
plumbers and their apprentices. Plumbing work in the paragraph
shall include the installation of all non-metallic sewers within the
property line including both sanitary and storms as well as open
drain tile.
Certain other contractors in Washington are known as "utility con-
tractors." Utility contractors perform pipe, plumbing, and related
work but only in connection with outside installations. Respondent
has no agreements with, and refers no plumbers to, utility contractors
and it otherwise does no business with utility contractors. Some utility
contractors, including Nickles Brothers, one of the subcontractors men-
tioned in this proceeding, have collective-bargaining agreements with
the Hod Carriers and Common Laborers Union.
Venneri, a general contractor, received a contract about August 1959
for the construction of the Library of Medicine in Bethesda, Mary-
land, and it awarded the outside mechanical work to Nickles. Upon
learning this, Respondent through its representative Rhodes told
Venneri, who was a comparative newcomer to the area, that since
the outside mechanical work had been awarded separately to a utility
contractor no mechanical contractor under agreement with Respondent
would take only the inside mechanical work because of aforementioned
section 32. Rhodes further advised Venneri that Respondent would
not refer plumbers to any mechanical contractor who would under-
take the inside work alone. Venneri was unable to find a mechanical
,contractor to perform only the inside mechanical work.
To obtain a mechanical contractor and plumbers to perform the in-
side mechanical work at the Library site, Venneri agreed with Re-
spondent that the mechanical work on two other Venneri jobs 10 in
Washington, D.C., would "use plumbers to perform all the necessary
mechanical work, in accordance with your agreement, with mechanical
contractors in this area. . . ." 11 Venneri in the same letter agreed
to go along with any decisions made by his mechanical contractor on
future work. Thereafter a mechanical subcontractor for the comple-
10 Army Medical Service Graduate School and Walter Reed Army Medical Center.
u Respondent 's Exhibit No. 2 (letter dated August 14, 1959).
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of the Library job was obtained and Respondent referred plumb-
ers to him.
The instant case had its beginning when, on November 30, 1959,
Venneri was awarded the construction by the U.S. Corps of Engineers
on two maintenance hangars designated as CRT-2 and SAM-2 at
Andrews Air Force Base. Venneri then entered into negotiations with
Akron, a mechanical contractor, relative to subcontracts and on
December 30, 1959, Venneri issued letters of intent to Akron for the
inside mechanical work on CRT-2 and SAM-2 and both the inside and
outside mechanical work on the Supply Facilities project. Akron
also had a contract with F. D. Rich Company, a general contractor, to
perform only the inside work on CRT-3 and CRT-4 and a contract
with Grunley-Walsh, a general contractor, to perform all mechanical
work on a project called Operation Mission Training.
After Akron obtained the abovementioned jobs, its representative,
Grossman, went to Respondent's office in January 1960 to discuss a
collective-bargaining agreement with Respondent. He talked with
DeChard, Respondent's business agent. After inquiring for whom
Akron was working, DeChard was informed about the jobs. DeChard
told Grossman that Respondent's contracts with mechanical con-
tractors require that the contractor get both inside and outside work.
DeChard also told Grossman that Respondent previously had trouble
with mechanical contractors taking only the outside work on Venneri
projects. He then gave Grossman a copy of Respondent's standard
agreement containing section 32. DeChard told Grossman to study
the agreement and return it signed if he was willing to abide by sec-
tion 32. About 10 days later Grossman signed the contract and he
returned it to the Respondent sometime after January 13, 1960.
In early February 1960, Akron representative Grossman talked with
Respondent agent Rhodes and was informed in accordance with sec-
tion 32 that Respondent would not refer men to Akron for work at the
CRT-2 and SAM-2 projects where Akron had only the inside me-
chanical work.
Grossman and Venneri sought a meeting with Respondent for
February 15, 1960. In arranging this meeting, Grossman called
Rhodes who reiterated that if Akron took only part of the mechanical
work Grossman would violate his agreement with Respondent and that
Akron could only take the work in its entirety. Rhodes in a con-
versation with Venneri stated that they had gone through this on
the Library project and this was the same situation.
At the meeting of February 15, Respondent representatives
DeChard and Rhodes claimed that Akron was in violation of its agree-
ment with Respondent by accepting only the inside plumbing work
on CRT-2 and SAM-2. Additionally, they stated that unless Akron
received both the inside and outside work Respondent would not refer
LOCAL 5, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 839'
plumbers to those Akron jobs. Rhodes rejected efforts to compromise
and refused, in this connection, to refer plumbers to Nickles, a utility
contractor, who had been awarded the outside plumbing work in early
January 1960. Rhodes explained, "We are not in business to violate
the agreement. We are in business to uphold it. That is what I am
charged to do."
Late in January 1960, a load of pipe was delivered to Akron at the
Grunley-Walsh job; Akron had purchased this pipe, some for the
Grunley-Walsh job and the remainder for installation by Akron at
CRT-2 and SAM-2. Members of Respondent in Akron's employ,
upon instructions from Respondent, refused to unload pipe destined
for CRT-2 and SAM-2. Respondent admits that plumbers referred
to Akron and working for Akron on the Grunley-Walsh and Supply
Facilities projects 12 were instructed not to move pipe from those job-
sites to CRT-2 and SAM-2. Members of Respondent who were em-
ployees of Akron accordingly refused to move Akron's pipe to Akron's
job at CRT-2 and SAM-2 and they also refused to fabricate such pipe
for Akron. Additionally, such employees, when worked fluctuated
at Akron's Walsh and Supply projects, refused Akron's efforts to
transfer them to Akron's CRT-2 and SAM-2 projects. This was-
in accordance with Respondent's refusal to refer plumbers to Akron
on these jobs and in compliance with specific instructions to its mem-
bers working for Akron to refuse transfers to CRT-2 and SAM-2.
From May 9 to June 16, 1960, Respondent refused to supply
plumbers to Akron on any of the above projects including the Grunley-
Walsh and Supplies projects. Respondent meanwhile advised its,
membership that Akron was in violation of Akron's collective-
bargaining agreement with Respondent on the CRT-2 and SAM-2
projects and that members should not work for Akron on these
projects.
Respondent filed charges against Akron under article IV of their
collective-bargaining agreement claiming that Akron was in violation
of aforementioned section 32. The conference board which heard
these charges consists of six members, three representing the contrac-
tors and three representing Respondent.12 The conference board met
on May 16, 1961, and decided after a hearing that Akron was in
violation of section 32. If the conference had not reached a decision,
it is to be noted that aribtration was the remaining step prescribed in
the Akron-Respondent agreement.
There is, therefore, an agreement between Akron and Respondent
by which Respondent in effect undertook to furnish plumbing em-
ployees to Akron in consideration for Akron's agreeing to obtain and
supply all plumbing work to his employees on any project on which
12 It is recalled that on these projects Akron had subcontracts for both the inside and'
outside plumbing.
13 General Counsel's Exhibit No. 6, article IV.
'840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he accepts a contracting job and for which he requests employees from
Respondent. My colleagues do not even suggest that this agreement
is proscribed by Section 8(e) (the hot-cargo provision) or by any
other section of the Act. Clearly, this is proper, for employees have
a right to protect their tenure and job opportunities with their em-
ployer. Thus, restrictions against subcontracting have long been
accepted as a mandatory subject of collective bargaining.14
That Akron violated its mentioned contract commitment is not
disputed. Faced with this clear breach, Respondent advised and in-
,duced Akron's employees, who were represented and had been referred
by Respondent to Akron under the agreement, not to perform work
for Akron and Respondent also thereafter refused to refer employees
to Akron under the agreement. At no time, insofar as this record
discloses, did Respondent seek to induce any employees, other than
Akron's whom it represented under the agreement, to refrain from
work. And at no time did Respondent threaten, coerce, or restrain
any other employer to force or require such other employer to cease
doing business with Akron.
Respondent thus had a contract with Akron, the offending party
in the circumstances, and it confined the area of dispute to Akron, as
one might have believed the Act to require to avoid running afoul of
the secondaryboycott strictures of Section 8 (b) (4) (B).11 And having
read the proviso to Section 8(b) (4) (B),16 Respondent might have
been further assured that the Board would be particularly mindful
of congressional desire not to interdict primary action where Respond-
ent did so narrow the dispute. But my colleagues now hold that Re-
spondent was not involved in that dispute with Akron at all; rather,
the majority states, Respondents dispute really was with Venneri,
et al., and Respondent should have brought its pressures to bear on
Venneri, et al., not Akron. Akron, my colleagues thus conclude, was
a disinterested neutral all the while.17 Had Respondent coerced
Venneri, et al., and induced their employees to strike, one is tempted
14 Cf. International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, Local 391 v . Webster Electric Company , 299 F . 2d 195 (C.A. 7, decided
February 7, 1962)
15 See N L.R.B. v. Denver Building & Construction Trades Council, et al. ( Gould &
Preisner ), 341 U S 675, 692, where the Supreme Court speaks of "the dual congressional
objectives of preserving the right of labor organizations to bring pressure to bear on
offending employees in primary labor disputes and of shielding unoffending employers and
others from pressures in controversies not their own " See also Local 761 International
Un,on of Electrical, Radio and Machine Workers, AFL-CIO v N L.R B. (General Electric
Co ), 366 U.S. 667
16 Section 8(b)(4)(13) reads as follows : "Provided, That nothing contained in this
clause (B) shall be construed to make unlawful, where not otherwise unlawful, any pri-
mary strike or primary picketing."
17 For the reasons explained in the dissenting opinion in Local 1066 , International Long-
shoremen's Association, AFL-CIO, etc. ( Wiggin Terminals, Inc.), 137 NLRB 45, I believe
the majority once more gives undue emphasis to the element of "control" of assign-
ments, in this case by Venneri, in determining the relationship of parties under Section
8(b)(4)(B) proceedings
LOCAL 5, UNITED ASSOCIATION OF JOURNEYMEN , ETC. 841
to speculate whether the Board might not then hold that Respondent's
dispute was with Akron after all.
I would dismiss the complaint.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Relations
Act, as amended, we hereby notify you that :
WE WILL NOT threaten, coerce, or restrain Akron Mechanical
Contractors, Inc., or Arthur Venneri Company, or any other per-
son, by refusing to refer or otherwise furnish individuals for
employment to Akron Mechanical Contractors, Inc., or any per-
son, according to the provisions of our contract, for an object of
forcing or requiring Akron Mechanical Contractors, Inc., to cease
doing business with Arthur Venneri Company, or to force or re-
quire Arthur Venneri Company to cease doing business with
Akron Mechanical Contractors, Inc., or Nickles Brothers, Inc.,
or to force or require the United States Corps of Engineers or any
other person to cease doing business with Arthur Venneri
Company.
WE WILL NOT induce or encourage employees of Akron Mechani-
cal Contractors, Inc., or of any person engaged in commerce or an
industry affecting commerce, to engage in a strike or refusal in
the course of their employment to use, manufacture, process,.
transport, or otherwise handle or work on any goods, articles, ma-
terials, or commodities or to perform any services where an ob-
ject thereof is to force or require any employer or other person to
cease doing business with Arthur Venneri Company or any other-
person.
LOCAL 5, UNITED ASSOCIATION OF JOURNEY-
MEN AND APPRENTICES OF THE PLUMBING
AND PIPEFITTING INDUSTRY OF THE UNITED
STATES AND CANADA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,.
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 701 N. Calvert Street, Eighth Floor, Baltimore 2, Maryland,
Telephone Number, Plaza 2-8460, Extension 2104, if they have any
question concerning this notice or compliance with its provisions.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
,On a charge filed May 6, 1960, by Arthur Venneri Company (herein called
Venneri) that Local 5, United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO
(herein called Respondent or Union), has been engaged in and is engaging in unfair
labor practices affecting commerce as set forth and defined in the National Labor
Relations Act, as amended, 61 Stat. 136, 73 Stat. 519 (herein called the Act), the
General Counsel of the National Labor Relations Board (herein called the Board),
on behalf of the Board, by the Regional Director for its Fifth Region, issued a com-
plaint and notice of hearing pursuant to Section 10(b) of the Act and Section 102.15
of the Board's Rules and Regulations, as amended, dated June 7, 1960, alleging
that the Respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8(b) (4) (i) and (ii) (B), and
Section 2(6) and (7) of the Act.
With respect to the unfair labor practices the complaint alleged in substance that:
Respondent, since on or about February 5, 1960, threatened Venneri and
Akron [a subcontractor of Venneri] that it would not furnish or supply Akron
with the necessary employees required for the performance of Akron's work at
the air base, unless work performed and to be performed by Nickles [a sub-
contractor of Venneri] at the air base is assigned to employees who are members
of or represented by Respondent.
Objects of the acts and conduct engaged in by Respondent as set forth .. .
above, were and are (1) to force or require the U.S. Corps of Engineers to cease
doing business with Venneri; (2) to force or require Venneri, and other persons,
to cease doing business with Nickles and/or Akron and to force or require
Akron to cease doing business with Venneri.
The complaint alleges that the above-described conduct constitute unfair labor prac-
tices within the meaning of Section 8(b),(4)(i) and (ii),(B) and Section 2(6) and
(7) of the Act, for thereby:
Respondent did engage in and is engaging in, and did induce and encourage,
and is inducing and encouraging, individuals employed by persons engaged in
commerce or in an industry affecting commerce to engage in a strike or a refusal
in the course of their employment to use, manufacture, process, transport or
otherwise handle or work on any goods, articles, materials or commodities and
to perform services, and did threaten, coerce, and restrain and is threatening,
coercing, and restraining persons engaged in commerce or in an industry affect-
ing commerce, where an object thereof is forcing or requiring persons to cease
using, selling, handling, transporting or otherwise dealing in the products of any
other producer, processor, or manufacturer and to cease doing business with
other persons... .
The Respondent duly filed an answer in which it denied engaging in any of the
alleged unfair labor practices and pleaded:
only a contractor who is in agreement with Local 5 can and is obliged to assign
all plumbing work to employees of a contractor covered by a collective bargain-
ing agreement with Local 5; That Nickles Bros. Inc. has no collective bargaining
agreement with Local 5; That members of Local 5 cannot work for the Nickles
Bros. Inc, and that Venneri Company has no collective bargaining agreement
with Local 5.
Thereafter the Regional Director for the Board's Fifth Region, having concluded
there was reasonable cause to believe the Union had engaged in the unfair labor
practices charged and that a complaint based on the charge should issue, acting
under Section 10(1) of the Act, petitioned the United States District Court for the
District of Columbia for a temporary injunction against the continuation of the
alleged unfair labor practices. After a hearing before the Honorable George C.
McGarraghy, United States District Judge, a temporary injunction was granted
July 1, 1960, Judge McGarraghy restraining the Union from engaging in any of the
unfair labor practices charged pending the final disposition of the matters involved
by the Board.'
1 The findings of fact and conclusions of law of the district court are found at 46 LRRM
2740 (1960). The transcript of the proceedings before the district court in Penello v
Local 5, United Association of Journeymen, etc, Civil No 1773-60, may be found in
Exhibit No 4 of the General Counsel. The testimony of Messrs Grossman, DeChard, and
Rhodes in the Section 10(1) proceedings was stipulated in the instant proceeding.
LOCAL 5, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 843
Pursuant to notice a hearing was held before Trial Examiner Louis Plost on
August 18, 19, and 22, 1960, at Washington , D.C. At the hearing all the parties
were represented and were afforded full opportunity to be heard on the issues, to
argue orally on the record , and to file briefs and/or proposed findings and con-
clusions. The parties did not argue orally. A date was fixed for the filing of briefs
and/or proposed findings and conclusions with the Trial Examiner ? Briefs have
been received from all parties . Upon the entire record in the case , the Trial Examiner
.makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE CHARGING PARTY
The parties stipulated that Arthur Venneri Company is a New Jersey corpora-
tion, engaged in business in various States as a general contractor in the construction
industry, with offices located in Washington, D.C., and Westfield, New Jersey. During
the 12 months immediately preceding the issuance of this complaint, a representative
period, Venneri purchased goods and materials of a value in excess of $50,000,
which goods and materials were shipped to it across State lines, and in the same
,period derived from its multistate operations gross revenues exceeding $1,000,000.
II. THE LABOR ORGANIZATION INVOLVED
Local 5, United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL-CIO, is, and has been,
at all times material herein, a labor organization within the meaning of Section 2(5)
,of the Act.
III. THE UNFAIR LABOR PRACTICES
A. 8(b) (4) ( i) and ( ii) (B)
As hereinabove found the complaint is predicated on alleged violations of Section
8(b)(4)(i) and (ii)(B) of the Act, the amendments to 8(b)(4)(A) (consolidated
and renumbered) by the Labor-Management Reporting and Disclosure Act of 1959.
The section amended (8(b) (4) (A) ) was the original "secondary boycott" provision.
As amended by the Labor-Management Reporting and Disclosure Act of 1959, it
provides in relevant part:
8(b) It shall be an unfair labor practice for a labor organization or its
agents-
* * * * * * *
(4) (i) to engage in, or to induce or encourage any individual employed by
any person engaged in commerce or in any industry affecting commerce to
engage in, a strike or a refusal in the course of his employment to use, manu-
facture, process, transport, or otherwise handle or work on any goods, articles,
materials, or commodities or to perform any services; or (li) to threaten,
coerce, or restrain any person engaged in commerce or in an industry affecting
commerce, where in either case an object thereof is:
(B) forcing or requiring any person to cease using, selling, handling, trans-
porting, or otherwise dealing in the products of any other producer, processor,
or manufacturer or to cease doing business with any other person, ... .
Section 8(e) referred to reads:
(e) 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 con-
tract or agreement entered into heretofore or hereafter containing such an
agreement shall be to such extent unenforcible and void: Provided, That noth-
ing in this subsection (e) shall apply to an agreement between a labor organiza-
tion 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: ... .
2 The date for submission of briefs was extended by the Chief Trial Examiner to Octo-
ber 10. On November 3 the Union filed a motion to reopen the record . On November 1,5
the General Counsel filed an opposition thereto. The motion was denied November 22
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The original "secondary boycott" sections of the Act was interpreted by the United?
States Supreme Court in the Denver Building Construction Trades case 3 in which
the Court held unlawful a secondary boycott directed against a general construction
industry contractor, caught in a dispute between a union and his subcontractor.
This case was decided in 1951 and would seem to be equally valid in a matter affect-
ing 8(b)(4).(i) and (ii)(B).
Designation (i) deals with inducement and encouragement of any individual em-
ployed by any person.
Designation (ii) has to do with pressure directly, applied to an employer. The
purpose of (ii) was clearly intended to close a loophole in the original law which
existed by reason of the fact that a union could avoid being in violation of the sec-
ondary boycott clause by a direct approach to the employer and obtaining an agree-
ment from the employer prohibiting his employees from handling goods under the
union's interdict. Such goods were commonly called "hot cargo" and gave their
name to the entire practice surrounding their handling.
That this was the purpose of the amendment 4 was clearly revealed by one of its
cosponsors who stated:
Fourth, if instead of going to B's employees the union official goes directly
to B and threatens him with labor trouble or other consequences unless he stops
dealing with company A-the effect of the Act can be technically avoided. Our
substitute would close this loophole-the Committee bill would not. [105
Cong. Rec. 14195 (daily ed. Aug. 11, 1959).]
It seems quite clear that the law as developed under the original "boycott clause"
(8(b) (4) (A)) applies with equal force to 8(b) (4) (i) and (ii) (B). The Board, with
Court approval, has held that strike action or the inducement thereof to compel an
employer to abide by contract provisions, where such compliance would require the
employer to cease doing business with another employer, is for an object prohibited
by Section 8(b) (4) (A).5
Similarly, the Board with Court approval, has held that objects identical to Re-
spondent's object here are prohibited. In Local 1976, United Brotherhood of Car-
penters, etc. v. N.L.R.B. (Sand Door & Plywood Co.), 357 U.S. 93, affg. 241 F. 2d
147 (C.A. 9), enfg. 113 NLRB 1210, the Supreme Court held that the Union's in-
ducement of employees to refuse to handle "unfair" goods, a right accorded the em-
ployees under the collective-bargaining agreement, for the purpose of requiring the
employer to cease handling such goods was violative of Section 8(b) (4) (A). Re-
jecting the Union's claim that its object-to enforce the contractual right of em-
ployees not to handle "unfair" goods-was protected by the "hot cargo" agreement
with the employer, the Court stated:
[l]t seems most probable that the freedom of choice for the employer
contemplated by Section 8(b) (4) (A) is a freedom of choice at the time the
question whether to boycott or not arises in a concrete situation calling for the
exercise of judgment on a particular matter of labor and business policy. Such
a choice, free from the prohibited pressures-whether to refuse to deal with
another employer or to maintain normal business relations on the ground that
the labor dispute is no concern of his-must as a matter of federal policy be
available to the secondary employer notwithstanding any private agreement
entered into between the parties. . . .
"All we need now say," the Court concluded, "is that the contract cannot be en-
forced by means specifically prohibited in Section 8(b) (4) (A) " (p. 108).
With respect to subsection (e), as hereinbefore set out, which exempts agreements
between labor organizations and employers in the construction industry from "hot
cargo" agreements it should be noted that subsection (e) makes it an unfair labor
practice to enter into a "hot cargo" agreement and therefore the exemption merely
permits a union and employer in the construction industry to enter into such agree-
ments but does not exempt conduct proscribed by the original 8(b)(4)(A). All,
8 341 U.S. 675
The legislative history is set forth in International Hod Carriers, Building and Com-
mon Laborers' Union of America, Local 1140 (Gilmore Construction Co.), 127 NLRB 541.
5E g., Local 636, United Association of Journeymen, etc (Tice Detroit Edison Company.
at al.), 123 NLRB 225, enfd as mod. 278 F. 2d 858 (C.A D C) ; Bonded Freightways,
Inc, 121 NLRB 924, enfd 273 F. 2d 696 (CA. 2) ; Leo Spear Construction Company,
Inc., 120 NLRB 600, enfd. 262 F. 2d 494 (CA. 1) ; The Light Co. Inc, 121 NLRB 221,
enfd 274 F. 2d 19 (CA. 7) ; Bangor Building Trades Council, AFL-CIO ( Davison Con-
struction Company, Inc ), 123 NLRB 484, enfd as mod . 278 F. 2d 287 (CA. 1) ; Con-
solidated Edison Co of New York, Inc, 124 NLRB 521
LOCAL 5, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 845
.that is excepted is that conduct proscribed by Section 8(e) itself. The proviso does
not exempt construction industry unions from the secondary boycott provisions.
Strike action, the inducement thereof, threats, and exertion of coercion and restraint
to enforce observance of agreements protected by the proviso continue to be un-
lawful under Section 8(b) (4).6
In Burt Manufacturing, supra, the Board stated:
. Section 8(e) in general bans the making or enforcement of so-called
hot-cargo arrangements; the proviso to Section 8(e) exempts such arrangements
with "an employer in the construction industry relating to the contracting or
subcontracting of work to be done at the site of the construction.. . . The
legislative history shows, however, that the proviso was not intended to affect
law developed under Section 8(b)(4), or to permit boycotts of goods manu-
factured in an industrial plant for installation at the job site.
The First Circuit recently stated in Bangor Building Trades 7 the proviso does "make
an exception [to Section 8(e)J for subcontracting clauses in the construction indus-
try," but "No changes were made in Section 8(b) (4) to permit unions to enforce such
clauses by the means therein proscribed, and the law remains that unions must hope
for voluntary compliance on the part of the contracting employer. The conference
report makes it quite explicit that the provision `is not intended to limit, change, or
modify the present law with respect to picketing at the site of a construction project,'
and that such cases as Sand Door and Denver Building remain in full effect. H. R.
Slept. 1147, 86th Cong., 1st Sess. 39 (1959)."
Of course when a statute is enacted its language is controlling, the debates are
not the Act, especially so when the language of the Act is passed upon by a con-
trolling court, however as to subsection (e) explanations of the meaning intended
seems to have been fully agreed upon, by members holding quite opposite views
on many matters, thus in the Congressional Record of September 3, 1959, Senator
John F. Kennedy explained the full meaning of the "hot cargo" provision as follows:
This proviso affects only section 8(e) and therefore leaves unaffected the law
developed under section 8(b) (4). The Denver Building Trades (341 U.S. 675)
and the Moore Drydock (92 N.L.R.B. 547) cases would remain in force.
Agreements by which a contractor in the construction industry promises not
to subcontract work on a construction site to a nonunion contractor appear to
be legal today. They will not be unlawful under section 8(e). The proviso
is also applicable to all other agreements involving undertakings not to do
work on a construction project site with other contractors or subcontractors
regardless of the precise relations between them. Since the proviso does not
relate to section 8(b) (4), strikes and picketing to enforce the contracts ex-
cepted by the proviso will continue to be illegal under section 8(b)(4) when-
ever the Sand Door case (357 U.S. 93) is applicable.
Also after the passage of the amended Act, Senator Barry Goldwater inserted the
following remarks in the appendix to the Congressional Record of September 24,
1959, p. A8357:
BUILDING: AN EXCEPTION
QUESTION. Isn't there an exception to the construction industry, too?
ANSWER. The exception to the construction industry is only a partial one.
They don't get what the garment industry gets. They are left in status quo.
They can't engage in secondary boycotts as far as the construction industry is
concerned. Those are outlawed completely.
But a building-trades union may enter into a contract with a contractor-
building contractor-whereby he agrees that he will not let work to any sub-
contractor who is nonunion. This is not illegal. Now here's what it may do:
The union may go into a court and sue him if he fails to live up to that agree-
ment. But they cannot strike or picket him to make him live up to it, which
is the law now, and we left it open as to whether they could strike or picket
him to compel him to enter into such an agreement. Whatever the courts
decide under existing law on the latter question will be applicable to the building-
construction industry.
9 The Burt Manufacturing Company, 127 NLRB 1629, decided July 3, 1960; Ti i County
Association of Civil Engineering Employees, et al, 126 NLRB 688; and N L It B v.
Bangor Building Trades Council ( Davison Construction Company, Inc ), supra.
7 46 LRRM 2004.
846 ° DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The illegal conduct
The facts adduced in support of the unfair labor practices alleged in the complaint
are not in material dispute.
On November 30, 1959, Arthur Venneri Company, the Charging Party, was
awarded a construction contract by the United States Corps of Engineers, to erect
two hangars at Andrews Air Force Base, Maryland.
Vennen subcontracted the inside mechanical work (plumbing) on the two proj-
ects which were designated as CRT-2 and SAM-2, to Akron Mechanical Contractors,
Inc. The contract between Venneri and Akron is dated December 30, 1959, but ad-
mittedly was actually signed in March or April 1960 and backdated to conform with
"letters of intent" issued by Venneri to Akron, and which by custom were considered
binding. Under the contract Akron was to perform all the inside plumbing. On
January 8, 1960, Venneri subcontracted the outside "plumbing" work, such as in-
stallation of drains, gas and waterlines , and nonmetallic pipe, to Nickles Bros., Inc.,
which is a "utility" contractor.8
The Union claims jurisdiction over all plumbing work in the Washington geographi-
cal area, including the laying of all nonmetallic pipe. Nickles has no contract with
the Union, but is under a collective-bargaining agreement with Hod Carriers, Build-
ing and Common Laborers Union of America, which also claims jurisdiction over
the installation of nonmetallic pipe, work also performed by "utility" or excavating
contractors such as Nickles. The conflicting claims of the two organizations create-
an area of sharp jurisdictional dispute between them .9
In the Washington, D.C., area, within the geographical jurisdiction of the Union,
some of the "mechanical contractors" who do pipe and plumbing work of all kinds
inside and outside of buildings under construction are members of the "Mechanical
Contractors District of Columbia Association, Inc." which is under a collective-
bargaining agreement for its members with the Union. Contractors, not members of
the Association, may become bound by the terms of this contract through independ-
ent agreement with the Union.
The contract, above referred to, binding on all Association members and non--
members who become signatory thereto, contains the following clause:
Article 17-Section 32
It shall be a violation of this agreement for any contractor to contract for a
job where plumbing work has been withheld from the plumbing contract by
either the owner or the general contractor for the purpose of being installed by
other than journeymen plumbers and their apprentices. Plumbing work in the
paragraph shall include the installation of all nonmetallic sewers within the
property line including both sanitary and storms as well as open drain tile.
After Akron was awarded the subcontract for CRT-2 and SAM-2, Sidney Gross-
man, its president, called at the Union's office, conferred with Leo DeChard, the
Union's business agent, and obtained a copy of the Union's contract with the Associ-
ation. On or about January 12 or 13, Akron signed this contract and returned it to
the Union. Akron was a signatory party to the contract at the time of the hearing.
"Sometime in December of 1959" Union Business Agent DeChard called Venneri
by telephone and spoke to him regarding the splitting of the mechanical work on the
CRT-2 and SAM-2 job. According to Venneri "He reminded me of the trouble
that we had at the Library of Medicine and told me that we should try not to have this
trouble again." The reference to the "Library of Medicine" referred to an incident in
1959; Venneri who then had a construction contract in connection with the National
Institutes of Health at Bethesda, Maryland, had awarded the outside plumbing work
to Nickles, who was not under contract with the Union. The Union's business
manager, Cecil Rhodes, at the time informed Venneri that no contractor under agree-
ment with the Union could take the inside work on the project because to do so
would violate section 32 of the Agreement between the Association and the Union
The matter was settled by an exchange of letters in which Venneri agreed that all
mechanical work on two other projects he had would be let to a contractor who was
under bargaining agreement with the Union and that section 32 would be observed.io
At the time DeChard and President Grossman of Akron first met and Akron was
given a copy of the Union's agreement with the Association, Grossman disclosed the
fact that he might contract with Venneri and was told by DeChard that on previous
8 Testimony of Joseph Vennerl.
' Testimony of Cecil Rhodes, business manager of the Union, and Kenneth F Sautill,
secretary-treasurer of Nickles.
70 Testimony of Joseph Venneri and Cecil Rhodes.
LOCAL 5, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 847
occasions Venneri had let contracts in violation of section 32, and if he (Grossman)
signed such an agreement "he would be in trouble." 11
On February 15, 1960, Venneri, Grossman, and Union Representatives Rhodes
and DeChard met at Venneri's office in Washington, D.C. The meeting was arranged
by Grossman and Venneri for the purpose of discussing Venneri's award of the in-
side mechanical work on SAM-2 and CRT-2 to Akron and the outside work to
Nickles, and the necessary referral of plumbers by the Union to perform the work.
When Grossman asked the Union to convene this meeting, Rhodes told Grossman
that "if he did [take only part of the plumbing work on that job], he would violate
his collective bargaining agreement" with the Union and "the only way you can
[take work on that project] is to get it in its entirety." In a later telephone conversa-
tion that day, Rhodes told Venneri that "we went through this approximately 6
months ago," and that this is the same situation we had on the Library of Medicine
job."
At this meeting Rhodes stated that by the terms of the settlement of the Library
of Medicine dispute, Venneri had promised that, as to all future jobs, he would award
all mechanical work to mechanical contractors only 12-this assertion being categori-
cally denied by Venneri at the time who insisted that he had promised to give all
the mechanical work to mechanical contractors only on two jobs unrelated to the
Andrews Air Force Base jobs, and did that only in order that he could obtain sufficient
plumbers to finish the Library of Medicine project.
The Union's representatives stated that Venneri's award of only the inside plumb-
ing work on the Venneri hangar job to Akron was a violation of Akron's agreement
with the Union; that unless Venneri awarded both the inside plumbing work to Akron
or another mechanical contractor, the Union would refer no plumbers to perform
work on the Venneri hangar project. Rhodes conceded that "the crux of the conversa-
tion was that until Akron complied with the collective bargaining agreement, Local 5
(Union) was not going to furnish him men as long as he did not comply with it."
When the Union asserted its position, Venneri stated:
I further told them what can I do now? I said, "We are under contract. And
we do have a contract with Nickles Brothers. And we do have a contract with
Akron. What is the possible solution?"
According to Venneri whose testimony in this respect was uncontradicted, Rhodes
replied:
There is no compromise. You either have to use plumbers or you will not get
men to do the job. You will not get men to do your mechanical work. So,
there is no compromise possible. Nothing amicable possible. The only thing
possible is that it is done this way or it is not done.
Union Business Manager Rhodes admitted that in the "spring of 1960" the Union
instructed its members who were employed on a different jobsite 'by Akron not to
move pipe that was going to CRT-2 and SAM-2. A foreman employed by Akron,
who was himself a member of the Union, refused to unload pipe intended for these
jobs when instructed to do so by Akron, because he had contrary orders from the
Union. This foreman, one Courtney, Union Business Manager Rhodes, and one
John Martin met the following day at the jobsite, after which Martin (who was the
business agent of Steam Fitters Local No. 602) instructed the members of No. 602
on the job not to handle pipe intended for CRT-2 and SAM-2. With respect to this
incident, Rhodes testified:
Q. (By Mr. ENNIS.) Who is Mr. John Martin? Do you know Mr. John
Martin?
A. I know Mr. John Martin that is Business Manager of Pipefitters Local 602.
Q. Now, at any time did you and Mr. Martin go out to the Grunley Walsh
project during the spring of 1960 and prior to June 30, 1960, and instruct
Akron's employees not to move pipe on that job to the Venneri hangar job?
A. I accompanied Mr. Martin to the job and he instructed the steamfitter
members of his group not to touch the work that belonged to the plumbers.
Q. Did you instruct the plumbers not to move that pipe?
A. Our plumbers had previously been instructed to that effect.
Rhodes further admitted that the Union informed its members at the Union's meet-
ings that "Akron was not living up to the contract of Local 5 as it is written."
u DeChard's testimony admitted by stipulation admitting General Counsel's Exhibit
No. 4.
12 This seems contrary to the Union's position that it has no contractual relationship
with Venneri
.848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rhodes also admitted that Akron's employees, who were members of the Union,
"were told not to fabricate any pipe for these particular jobs, CRT-2 and SAM-2."
He testified:
Q. Did they follow these instructions?
A. Yes, they did.
He further testified that Martin, the Steamfitters business agent, agreed that as to
CRT-2 and SAM-2:
I will instruct the fitters that, number one, they are not to handle any work
that belongs to your jurisdiction, the plumbers, and that, number two, that they
are not to go on those particular jobs either.
Rhodes admitted that since March 1960, the Union instructed plumbers referred to
and working for Akron on other projects at the airbase not to go to the Venneri
hangar job and perform work on that job; not to permit themselves to be transferred
by Akron to work on the Venneri hangar job; and that the men followed these
instructions. Further, Rhodes testified that prior to the injunction, whenever Akron
made requests for men for the Venneri hangar job, the Union replied that no men
would be supplied for that job, and that prior to the injunction the Union refused
to refer plumbers to Akron to perform work on the Venneri hangar job.
The Union's Contention
The Union argues in its brief that the primary employer involved herein is not
Venneri but Akron, the dispute arising under section 32 of the Union-Association
agreement which required Akron, as a subcontractor, to hold a contract for all the
work on CRT-2 and SAM-2 as he was required under section 32 to take work which
"encompassed an entire plumbing job."
The Trial Examiner is convinced by all the evidence considered as a whole that
the Union's entire conduct, as well as the direct pressure it exerted on Venneri by
its threats not to refer any plumbers to the CRT-2 and SAM-2 jobs, as made at the
February 15 meeting herein referred to, shows that not Akron but Venneri was the
Union's real target.13
As recently held 14 by the Circuit Court of Appeals for the First Circuit, a union's
collective-bargaining agreement with the general contractor-establishing a union
shop and providing that the agreement was to be applicable to subcontractors-was
not a defense to a union boycott, the object of which was to force the general
contractor to sever business relations with a nonunionized subcontractor.
As shown herein in the discussion under section III, A, of this report, it is clear
that the addition of the new proviso to clause 4(B) of Section 8(b) exempting
certain "primary" strikes and "primary" picketing from the ban on secondary boy-
cotts did not change anything. While the contract provision (section 32) is in itself
valid as between the parties, (erforcible by civil action if at all) the Union cannot
.enforce it by pressures outlawed in Section 8(b) (4).
As to any pressures on Akron, the Union argues:
The only restriction applied by Local 5 (on the CRT-2 and SAM-2 jobs
only) was a refusal to supply men for the conceded breach of Section 32 by
Akron on those two jobs. Akron is free to hire whomsoever he chooses-men
from other United Association local unions (and he has done that), men from
Local 5 (he has done that), or non-union men (and he has done that, too).
For Local 5 to refer men to a job where plumbing work was being performed
by workers who are not plumbers would have been approval by Local 5 that
any person could perform their work and the fact that another contractor or
contractors is involved is entirely beside the point. The work is being lost. It
is, therefore, a primary dispute with Akron. the object (and the only object) of
which is to save the members of Local 5 harmless from losing their work.
The Trial Examiner sees no merit in the argument.
As to Nickles the Union argues that as it had no contract with Nickles it was under
no obligation to him whatever. The following interesting and revealing testimony
is from the cross-examination of Kenneth F. Santell, the subcontractor's secretary-
treasurer:
Q. (Mr. DUNN.) Isn't it a fact that this is the first time since 1935 that you
have ever asked Local 5 to refer any plumbers to your job?
" See Joliet Contractors Association, at al . v N.L R B., 202 F 2d 606 (C A. 7)
14 N L R B v. Bangor Building Trades Council (Davison Construction Company, Inc ),
278 F. 2d 287.
LOCAL 5, UNITED ASSOCIATION OF JOURNEYMEN, ETC . 849
A. That is true, yes, sir.
Q. Is the work that we are discussing here , the laying and installation of
sewer mains and sewer pipes , is that progressing satisfactorily as far as your
contract is concerned?
A. It is progressing, yes.
Q. It is progressing?
A. Yes.
Q. I get the point . In any event , the work is going on?
A. That is right.
There was no picketing , employees apparently did not leave their jobs, however,
in a case quite similar to this 15 the Board held that a refusal to refer members
(a contractual relationship existing ) constituted a "strike" within the meaning of
Section 8(b) (4) (A) since the term encompassed only "concerted interruption of
operations by employees ." The Board stated:
Where a union , as the agent of its members, refused to permit them to work
for any employer with whom it has a labor agreement by the simple expedient
of failing to dispatch them to a project where operations are about to com-
mence or already in progress the union causes a concerted interruption of the
employer's operations as surely as if it had called the men off the job where
they already were at work.
Conclusion
As herein found the Union admits that it instructed its members, employed by
Akron not to handle any materials intended for the Venneri CRT-2 and SAM-2 jobs;
not to move pipe from another job to CRT-2 and/or SAM-2; not to fabricate pipe
for these jobs; and not to permit themselves to be transferred to work at CRT-2
and/or SAM-2.
This type of conduct has been held violative of Section 8(b) (4) from the Board's
earliest interpretations thereof.18 The Supreme Court has held that "the words
`induce and encourage' are broad enough to include in them every form of influence
and persuasion." 17 The above-detailed conduct is clearly violative of Section
8(b)(4)(i)(B) of the Act. It is equally clear that the Union induced and en-
couraged Akron's employees in violation of Section 8(b) (4) (i) (B) by announce-
ments at membership meetings. In Genuine Parts Company, 119 NLRB 399, enfd.
265 F. 2d 439 (C.A. 5), cert. denied 361 U.S. 917, the Board held that:
The statute grants no exemptions to unlawful conduct because committed in
the confines of a union meeting hall or because it occurred as an incident to,
or in explanation of, union regulations or policies.
The phrase "employees of any employer" in the old 8(b) (4) (A) was amended
to "individual employed by any person." Accordingly, the "employee" status and
"course of employment" of union members are determined not exclusively by an
existing technical contract of hire and a specific employer, but also by existing
employment arrangements and practices sufficient to create an employer-employee
relationship between the employer and union members. Under the circumstances
here, it is clear that the employment practices and arrangement existing between
Akron and the Union creates an employment relationship between Akron and the
Union's members, and that such members are "individuals employed" by Akron
within the meaning of Section 8(b) (4) (i).18
15 Local 636, United Association of Journeymen, etc (Detroit Edison Company. et al.),
123 NLRB 225, enfd as mod 278 F 2d 858 (C A D C )
la E g., Local 1976, United Brotherhood of Carpenters, etc v N L R B. (Sand Door
Plywood Co.), 357 U.S 93 (1958), enfg 113 NLRB 1210; N.L R B v Brewery and Beer
Distributor Drivers, Helpers and Platform Hen, Local 830, etc. (Delaware Valley Beer
Distributor Assn ), 281 F 2d 319 (CA. 3), enfg 125 NLRB 12, Local 636 of the United
Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry,
etc. (The Detroit Edison Company, et al. ), 123 NLRB 225, enfd as mod 278 F 2d 858
(C A D.C.) ; N L R B. v. United Brotherhood of Carpenters and Joiners of America, et al
(Midwest Homes, Inc ), 276 F 2d 694 (C A 7), enfg as mod 123 NLRB 1806; N L R B v
Local 450, International Union of Operating Engineers (Hinote Electrical Co ), 275 F 2d
420 (C A 5), enfg. 121 NLRB 1404, and N L R.B v Local 450, International Union of
Operating Engineers (Industrial Painters & Sandblasters ), 275 F 2d 413 (C.A 5) , and
cases cited supra
17 International Brotherhood of Electrical Workers , Local 501 , et al v. N L R B. ( Samuel
Langer), 341 U S 694.
'g See L B TVilson, Inc., 125 NLRB 786.
649856-63-vol. 13 7-5 5
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner is of the opinion that the Union's refusal to refer craftsmen
as requested by Akron pursuant to the provisions of its agreement with the Union
the objects thereof being prohibited was violative of Section 8(b) (4) (i ) and (ii) (B),
since these members had never performed work for Akron , the Union 's refusal to
refer plumbers to Akron was a "strike" or the inducement of an "individual em-
ployed by any person" to refuse to perform services in the course of his employment.
The Trial Examiner finds therefore that the Union's refusal to furnish craftsmen
to Akron was violative of Section 8(b) (4) (ii) (B).
The Trial Examiner is further convinced that the Union by threatening Venneri
that it would not refer plumbers requested by Akron unless all the plumbing work
of the Venneri hangar project were given to Akron or another mechanical contractor
threatened , coerced , and restrained Venneri in violation of Section 8(b) (4) (ii) (B).
Of all the evidence in this record it is clear that the target of the Union's conduct
was Venneri, and the object of the Union was a tight and complete boycott against
Venneri as far as the CRT-2 and SAM-.2 jobs were concerned and that in order to
attain its object the Union engaged in conduct violative of Section 8(b)(4)(i) and
(ii) (B) of the Act.
Concluding Finding
Upon the conduct of the Union as detailed above the Trial Examiner finds, on
the record as a whole, the Respondent Union has engaged in conduct which con-
stitutes unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (B)
and Section 2(6) and ( 7) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities and conduct of the Respondent Union as described above, occurring
in connection with the operations of Venneri , described in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States of the United States and within the District of Columbia, and tend to
lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent Union has engaged in certain unfair labor practices,
the Trial Examiner recommends that it 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, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Arthur Venneri Company, of Washington, D.C., and Westfield, New Jersey,
is engaged in commerce within the meaning of the Act.
2. Local 5, United Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada, AFL-CIO, is a labor
organization within the meaning of the Act.
3. By threatening Arthur Venneri Company that it would not furnish craftsmen
for its CRT-2 and SAM-2 jobs at Andrews Air Force Base, by refusing to furnish
plumbers to Akron Mechanical Contractors, Inc., and by instructing its member
employees of Akron not to handle, move, or work on fabricate materials intended
for jobs being performed by Akron for Venneri, and instructing its members, em-
ployees of Akron, not to accept transfers to these jobs, and by making certain
announcements at union meetings the Respondent Union in each case having the
object of ( 1) forcing or requiring the U.S. Corps of Engineers to cease doing business
with Arthur Venneri Company; or (2) to force or require Arthur Venneri Company
and other persons to cease using , selling, transporting , or othewise dealing in the
products of, and to cease doing business with, Akron Mechanical Contractors, Inc.,
or Nickles Brothers, Inc., or (3) to force or require Arthur Venneri Company, and/or
Akron Mechanical Contractors, Inc., and/or Nickles Brothers, Inc., to assign all
outside work in connection with said hangars, including the laying, loading, unload-
ing, distribution , and other handling of metallic and nometallic pipe, to employees
who are members of or represented by the Respondent Unon, the Union has engaged
in conduct violative of Section 8(b)(4)(i) and (ii) (B) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication.]