Local 742, Carpenters

National Labor Relations Board - Board Decisions

Sep 5, 1969

178 N.L.R.B. 351 (N.L.R.B. 1969)

LOCAL 742, CARPENTERS
Local No. '742 , United Brotherhood of Carpenters
and Joiners of America , John Foreman , business
agent and Harold Stolley, steward and J. L.
Simmons Company , Inc.' Case 38-CC-50
September 5. 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On July 12, 1968. Trial Examiner Thomas S.
Wilson issued his Decision in the above-entitled
proceeding. finding that the Respondent Local No.
742, United Brotherhood of Carpenters and Joiners
of America had not engaged in the unfair labor
practices alleged in the complaint and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General
Counsel and the Charging Party filed exceptions to
the Trial Examiner's Decision and briefs in support
thereof, and Respondent filed an answering brief.
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,2 the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent
herewith.
On July 8, 1966, Simmons Company entered into
an agreement with the Decatur and Macon County
Hospital Association' whereby the former agreed to
construct an addition to the hospital in accordance
with certain specifications. This agreement was for
the contractors (Simmons Company's) base bid as
modified by Alternate No. 16 and Section 35 of the
specifications, which provided for the installation of
wood doors " in lieu of Plastic Faced Doors." This
agreement further provided that within ". . . a
period of sixty day's from the date of July 1, 1966,
the Hospital should have the "option of reinstating
work deleted by alternates...."
By Contract Change Order No. 2 General,
accepted by Simmons Company, the Hospital opted
on August 15, 1966, for the deletion from the
contract of Alternate No. 16. The consequence of
this change order was to bring into effect paragraph
'Herein referred to as Simmons ( ompany or the Charging 1 arty
'We specifically disavow the gratuitous and wholly unwarranted remarks
of the Trial Examiner regarding members of the legal and architectural
professions
'Herein referred to as Hospital
351
I. a, of section 35 of the specifications which, as the
Trial Examiner found, provided for plastic faced
doors which carry a lifetime guarantee and are
premachined; i.e., cut, routed, trimmed, and
mortised at the factory.' Simmons ordered the
required doors from Anderson Wood Products
Company.
In November 1967, 80 premachined plastic faced
doors arrived at the construction site. Thereafter, on
December 1, 1967. Foreman, a Local 742 business
agent, told Neal, vice president and manager of the
Decatur Building Division of Simmons Company,
that the premachined doors were in violation of the
local area agreement.' After being apprised of the
fact that premachining was required by the
specifications, Foreman stated that the Respondent's
members employed by Simmons Company would
not hang; i.e., install, the doors. Respondent claimed
that routing, boring, and mortising, work that the
specifications required be performed by the
manufacturer, belonged to the jobsite carpenters.
There followed on or about December 11, 1967, and
January 30 and 31, 1968, refusals to hang the doors.
On those occasions Dyslin, a job superintendent for
Simmons Company, asked Stoller, the union
steward and Respondent's agent, to hang the doors.
On all three occasions Stolley refused.
On December 11, 1967, subsequent to Stolley's
refusal to hang the doors, Mamet, Respondent's
attorney, suggested to Gebhard, Simmons
Company's attorney, that an economic solution be
worked out whereby the doors would be hung if
Simmons Company negotiated an additional rate of
pay for each premachined door hung. Subsequent to
the filing of the unfair labor practice charge herein
by Simmons Company, Corbin, a representative of
Respondent's International, proposed to Neal on
January 10, 1-968, that the doors would be hung but
if the Respondent prevailed in the instant unfair
labor practice proceeding, Simmons Company
would either pay a specific premium or negotiate
premium pay for hanging the premachined doors.
When no substantive response to these proposals
was received and after a letter from Neal dated
January 31, 1968, further requesting that the doors
be hung, Foreman informed Simmons Company by
'We find it unnecessary to the decision in this case to rule on the Trial
Examiner's findings that the wood doors were not to be premachined, and
that the change to plastic-faced doors resulted in a $12,000 savings for
Simmons Company If it were necessary, we would find, based on the
language of the specifications itself and the absence of any relevant
extrinsic evidence to the contrary, that paragraph 1. c, of section 35 of the
specifications applied to both paragraph 1, a, dealing with plastic faced
doors, and paragraph 1, b, dealing with wood doors, and required that the
latter as well as the former be premachined It follows that there was thus
no "financial bonanza" to Simmons Company by virtue of the change
from wood doors to plastic faced doors
'Simmons Company at all times material here was a party to a
collective-bargaining agreement with the United Brotherhood of Carpenters
and Joiners of America whereby the former agreed to abide by the local
area agreement between Decatur Contractors Association Inc and Local
742. At the hearing herein Foreman stated that in his conversation with
Neal he was referring to Article 11 of the local agreement which provides
that Simmons recognize the jurisdictional claims of Respondent
178 NLRB No. 54
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letter dated February 1, 1968, that Respondent
would grant its members the right to install the
doors. Respondent's members thereafter began
installing the doors.
We find in agreement with the Trial Examiner
that the above-described threat of Foreman not to
hang the doors constituted restraint and coercion of
Simmons Company within the meaning of Section
8(b)(4)(ii). We find in addition that the
above-described refusals by union steward Stolley,
also a Simmons employee, of superintendent
Dyslin's requests to hang the doors constituted
refusals, in the course of his employment by
Simmons Company. to handle the doors or perform
services within the meaning of Section 8(b)(4)(i).
Contrary to the Trial Examiner, however, we find
that these acts had a cease-doing-business objective
violative of Subsection (B). We base this conclusion
on the following reasons: The Decatur and Macon
County Hospital required in its specifications that
plastic faced doors premachined by the
manufacturer be installed in the addition to the
hospital. While Simmons Company had a choice.
subject to approval by the architect, as to the
manufacturer of the doors, it had no choice as to
whether or not the doors would be premachined by
the manufacturer. The Hospital was responsible for
this decision and only it could change it. Simmons
Company was a neutral with respect to the
assignment of this work. Hence, the pressure exerted
against Simmons Company, the secondary
employer, was for the purpose of forcing it to cease
doing business with the Hospital and forcing the
Hospital to cease doing business with Anderson
Wood Products Company for the furnishing of
premachined plastic faced doors, this was therefore
secondary action which was unlawful under Section
8(b)(4)(i) and (ii)(B).` We so find.'
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices in violation of Section
8(b)(4)(i) and (ii)(B) of the Act, we shall order it to
cease and desist therefrom and take certain
affirmative action designed to effectuate the policies
of the Act.
`See Local 636 , United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry (Mechanical Contractors
Association of Detroit. Inc ) 177 NLRB No 14. and Pipe Fitters Local
No 120, United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada,
AFL-CIO (Mechanical Contractors Association of Cleveland ). 168 NLRB
No. 138 Contrary to the Trial Examiner , in American Boiler
Manufacturers Association, 167 NLRB No 79, the Board indicated no
propensity to abandon the right of control doctrine.
'In view of our findings above, we find it unnecessary to decide whether
a mere demand that a contracting company bargain with a union for
premium pay to perform work on prefabricated products, such as the
premachined doors in the instant case, would in and of itself be violative of
Sec 8 (b)(4)(i)(u)(B)
CONCLUSIONS OF LAW
1. J. L. Simmons Company, Inc. is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. J. L. Simmons Company, Inc. and Decatur and
Macon County Hospital are persons within the
meaning of Section 8(b)(4)(ii) of the Act.
3. Local No. 742, United Brotherhood of
Carpenters and Joiners of America is a labor
organization within the meaning of Section 2(5) of
the Act.
4. By threatening J. L. Simmons Company, Inc.
that Respondent's members employed by Simmons
Company would not hang certain premachined
plastic faced doors and by engaging in refusals to
hang those doors, with an object of forcing
Simmons Company to cease doing business with
Decatur and Macon County Hospital and with
Anderson Wood Products Company, Respondent
violated Section 8(b)(4)(i) and (ii)(B) of the Act.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board orders that the Respondent, Local
No. 742, United Brotherhood of Carpenters and
Joiners of America. its officers, agents. and
representatives, shall:
1. Cease and desist from:
(a) Threatening. coercing, or restraining J. L.
Simmons Company. Inc. with an object of forcing
or requiring Simmons Company to cease doing
business with Decatur and Macon County Hospital,
Anderson Wood Products Company, or any other
person with respect to premachined doors.
(b) Engaging in a refusal in the course of
employment to handle premachined plastic faced
doors or to perform services for J. L. Simmons
Company, Inc. with an object of forcing or
requiring Simmons Company to cease doing
business with Decatur and Macon County Hospital,
Anderson Wood Products Company, or any other
person with respect to premachined doors.
2 Take the following affirmative action which we
find will effectuate the policies of the Act:
(a) Post in Respondent's business offices and
meeting halls copies of the attached notice marked
"Appendix."' Copies of said notice, on forms
provided by the Regional Director for Subregion 38,
after being duly signed by an official representative
of Respondent, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
'in the event that this Order is enforced by a decree of a United States
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 "
LOCAL 742, CARPENTERS
by it for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to members are customarily posted.
Reasonable steps shall he taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(b) Mail to the Regional Director for Subregion
38, signed copies of the aforementioned notice for
posting by J. L. Simmons Company, Inc., if it is
willing, in places where notices to employees are
customarily posted. Copies of said notice, on forms
provided by the Regional Director, after being
signed by Respondents representative as indicated,
shall be returned forthwith to the Regional Director
for disposition by him.
(c) Notify the Regional Director for Subregion
38. in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
APPENDIX
NOTICE TO AL L MEMBERS OF LocAi No 742, UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS 01 AMERICA.
AND TO ALL EMPLOYEES oiF J. L. SIMMONS COMPANY, INC.
Pursuant to a 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 threaten J L Simmons Company, Inc.
that our members will refuse to handle premachined
plastic faced doors with an object of forcing or
requiring Simmons Company to cease doing business
with Decatur and Macon County Hospital, Anderson
Wood Products Company, or any other person, with
respect to premachincd doors
WE WILT NOT engage in a refusal in the course of
employment tc handle for J. L. Simmons Company,
Inc. premachmed plastic laced doors with an object of
forcing or requiring Simmons Company to cease doing
business with Decatur and Macon County Hospital,
Anderson Wood Products Company or any other
person with respect to preinachined doors.
WE Now notify our members employed by J. L
Simmons Company, Inc. that we have no objection to
their hanging premachined plastic faced doors at the
Decatur and Macon County Hospital addition now
under construction.
LOCAL No. 742, UNITLD
BROTHERHOOD OF
CARPED rERS AND JOINERS
OF AMFRICA
(Labor Organization)
Dated By
(Representative ) (Title)
This notice -must remain posted for 60 consecutive days
from the date of posting and must not be altered. defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Subregional Office. 4th Floor,
Citizens Building. 225 Main Street, Peoria, Illinois 61602,
Telephone 309-673-9282.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
353
THOMAS S. WILSON, Trial Examiner: Upon a charge
duly filed on December 15, 1967, by J. L. Simmons
Company, Inc., herein called the Charging Party or
Simmons, the General Counsel of the National Labor
Relations Board, hereinafter called the General Counsel'
and the Board respectively, by the Regional Director for
Region 38 (Peoria, Illinois ), issued its complaint dated
.January 31, 1968, against Local No. 742, United
Brotherhood of Carpenters and Joiners of America, John
Foreman, Business Agent and Harold Stolley, Steward,
hereinafter referred to as the Respondents, Local 742, or
individually. The complaint alleged that Respondents had
engaged in and were 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 Labor
Management Relations Act of 1947, as amended. herein
called the Act. Copies of the charge, the complaint, and
notice of hearing thereon were duly served upon the
Respondents and the Charging Party
Respondents duly filed an answer admitting certain
allegations of the complaint but denying the commission
of any unfair labor practices
Pursuant to notice it hearing was held at Peoria,
Illinois, on April 16 and 17, 1968, before me. All parties
appeared at the hearing, were represented by counsel, and
afforded full opportunity to be heard, to produce,
examine, and cross-examine witnesses, and to introduce
evidence material and pertinent to the issues. Oral
argument at the close of the hearing was waived Briefs
were received on June 3. 1968, from the Respondents,
Charging Party. and General Counsel.
Upon the entire record in the case and from my
observation of the witnesses, I make the following
FINDINGS OFF FACT
I. BUSINESS 01 THE CHARGING PARTY
J. L. Simmons Company. Inc.. is, and has been at all
times material herein, a Delaware corporation with office
and place of business located at Decatur. Illinois. It is
engaged in the construction business
By the terms of an agreement entered into on July 8,
1966, with the Board of Trustees, Decatur and Macon
County Hospital Association (Hospital), Decatur, Illinois,
the Charging Party is the general contractor for a project
known as Additions and Alterations to Decatur and
Macon County Hospital, Decatur, Illinois, which is the
only project involved herein.
The complaint alleged. the answer admitted, and I find.
that J L. Simmons Company, inc., is, and has been at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
IT. THE RESPONDFNIS
Local No. 742, United Brotherhood of Carpenters and
Joiners of America is a labor organization admitting to
membership employees of the Charging Party. John
'this term specifically includes the attorneys appearing for the General
Counsel at the hearing
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foreman is its business agent and Harold Stolley is the
Union's steward on the Hospital project.
111. THE ALLEGED UNFkIR LABOR PRACTICES
A. The Facts
Sometime in the year 1965 the Board of Trustees,
Decatur and Macon County Hospital Association,
Decatur , Illinois, decided to enlarge its existing hospital
facilities in Decatur. It had Dane D. Morgan and
Associates, Architects, Burlington , Iowa, prepare plans
and specifications for these additions and alterations to
the existing hospital.
Due to certain problems of financing this project the
architects drew these plans and specifications with a
number of alternate options upon which the contractors
bid.' In other words the hospital intended to opt the
cheapest "alternate" in order to keep the total price of the
project down until its financing arrangements could be
expanded to cover the more expensive alternates.
Section 35 of these plans and specifications, which is
the root of the trouble here, became known as Alternate
No. 16. Alternate No. 16 gave the Hospital the option of
selecting either "plastic faced" doors or wood doors.
Section 35 of the specifications read as follows.
PLASTIC FACED and WOOD DOORS
1. SCOPE.
a. Unless otherwise scheduled, all doors shall be
Solid Wood Core Doors with Laminated Plastic Finish
as herein specified and shall be identified herein as
Plastic Faced Doors.
b See Method of Bidding. Alternates shall be taken
to furnish, install , and finish Solid Wood Core Doors
with Flush Wood Veneer Facings, job finished, as
herein specified in lieu of Plastic Faced Doors. Flush
wood veneered doors are identified herein as Wood
Doors.
e Each door to he factory fit and beveled to net
opening sizes and shall be factory machined to satisfy
the entire hardware schedule, except for surface applied
hardware which does not require shop preparation. No
cutting, routing, trimming, or mortising shall be
permitted after doors leave factory and doors requiring
modifications shall be returned to the factory. In
general, locksets to be mortise type. hinges to be butt
type, and closers to be overhead type surface applied.
Most doors to have metal edge strips which shall be
mortised flush with face of door Kick plates, push
plates, and bumper plates to he surface applied A copy
of an approved finish hardware schedule plus templates
of hardware items will be provided by the finish
hardware supplier.
d. Contractor shall verify the name of the
manufacturer of plastic faced and/or wood doors prior
to negotiating a contract with this sub-contractor and
shall provide detailed shop drawings showing doors,
sizes, mortising, and details of glazed opening for
review and approval.
2. DOORS
'As Robert G Neal, voce president and manager of the Decatur Building
Division of J L Simmons Company, Inc, put it, "1 remember , a t the
time , I had the impression , well, here is a man that's in budget trouble,
he's looking for money , but he's got high-priced ideas."
a. All doors to be staved lumber core doors
conforming to all requirements of Commercial
Standards CS-171 as amended except doors with five
inch stiles or rails which shall be stile and rail lumber
core doors conforming to all requirements of Federal
Specification LLL-D-581, Type 1, Style 11.
b. Each door to be guaranteed for the life of the
building. Guarantee shall conform to the Standard One
Year Door Guarantee of the National Woodwork
Manufacturers Association except that the life of the
guarantee shall be extended as above stated. Repair and
replacement including rehanging and refinishing shall be
performed at no cost to the Owner.
3. PLASTIC FACED DOORS
a. Both faces and both long edges of each door shall
be covered with an approved 1/16 inch high pressure
plastic laminate to meet the N E.M.A. requirements
and top and bottom edges shall be sealed with a
laminated sheet plastic to minimize moisture content
changes
h Colors and patterns of laminated plastic to' be as
selected by Architect.
4. WOOD DOORS
a. Face veneers and solid stock edge bands of doors
located in rooms where walnut panelling is scheduled
shall be premium grade plain sliced black walnut. Face
veneers and solid stock edge bands of all other wood
doors shall be premium grade plain sliced red oak.
b. All exposed surfaces shall be smoothly sanded and
covered. Wood doors to be job finished.
5. HANDLING and PROTECTION
a. Doors shall be packaged, handled, and stored in a
careful manner. They shall be protected from moisture
and high humidity and shall at no time be exposed to
inclement weather
b. Each door to be numbered to correspond to its
assigned opening. No job cutting, trimming, or patching
will be permitted.
c. After doors are hung, they shall be finished
without delay and shall be protected from damage.
Doors shall not be wedged open. Upon completion of
project, any door with surface defects, split faces or
edges, or noticeable scratches shall he rejected and
replaced at no change in contract cost.
On June 2, 1966, the bids on this project were opened
and the Charging Party, Simmons, proved to he the low
bidder.
On July 8, 1966, the Hospital signed a contract with
Simmons whereby Simmons agreed to purchase the
materials and build the additions and alterations
according to specifications for a sum of 52,961, 100.
As of the date of the execution of this agreement the
Hospital had opted under Alternate.No.l6the installation of
the wood doors which, according to the Simmons' bid,
constituted a $12.000 saving over the use of the plastic
doors. However, Anderson Wood Products Co.. the
supplier of the doors in either case, had agreed to supply
Simmons with the specified plastic doors for only $10,000
more than the wood doors even though this Anderson hid
further specified that "Wood doors under Alts. 16, 17 and
18 are not prefinished and worked for hardware."
There is little question but that the Hospital at all times
intended, as soon as the financing could be arranged, to
have the plastic doors installed rather than the wood doors
because of their supposed cheaper maintenance. However,
'Anderson read the spec .if-ications , quoted supra , as requiring only blank
wood doors which were not prefabricated or premachined at its factory
LOCAL 742, CARPENTERS
at the time of the execution of the contract, the Hospital
had chosen the wood doors, thereby, according to the
Simmons' bid, saving $12,000.
On August 9 and 15, 1966, Simmons held two prejob
conferences with the business representatives of the
various construction unions which would be involved in
the project At the second meeting Simmons presented
John Foreman, president of the local Building Trades
Council and also business representative of Carpenter
Local 742, a copy of the inch and one-half thick plans and
specifications of the project for the use of these unions.
Otherwise the record shows that there was no talk about
these plans and specifications for the reasons that these
meetings apparently were really only "get acquainted"
meetings and, besides. Gordon L. Dyslin, Simmons' job
superintendent on the Hospital project, had just been
employed by Simmons on August 8, and admittedly had
not read the plans and specifications himself.
However, on August 15, 1966, Change Order No. 2,
which increased the price of construction to $3,543,250,
was accepted by both Simmons and the Hospital Among
the other changes made by this Change Order No. 2 was
one involving Alternate 16 whereby the Hospital ordered
the prefabricated, factory machined, liletime guaranteed,'
plastic covered doors in lieu of the previously ordered
wood doors No copy of this Change Order No. 2 nor any
indication thereof was ever given to the Union.
As of the time of this project, Simmons had no direct
contractual relationship with Local 742 of the Carpenters'
union but did have at all times material here a contract
with the international United Brotherhood of Carpenters
and Joiners of America by which Simmons recognised the
jurisdictional claims of the United Brotherhood and
agreed to observe the working conditions and wages
established in the local community. The local agreement
applicable here was between the Decatur Contractors'
Association, Inc., and Local No. 742 and contained the
following two clauses.
Any Employer who sublets any of his work must sublet
such work in accordance with the current procedural
rules of the Nat'l. Joint Board in effect at the time a
dispute may occur. Any Employer who sublets any of
his work must sublet such work subject to the
provisions concerning wages, hours and working
conditions as hereinafter set forth in this contract
Anderson Wood Products Company, the suppliers of
the doors involved herein, on the other hand had a
contract covering its employees with the Carpenters' Local
in Louisville and its doors.. whether plastic covered or
wood, carried the Carpenters' union label.
With one exception labor relations on the project
appear to have gone well. However, in September 1967,
Carpenter Steward Harold Stolley and the other six or
seven carpenters then employed on the job refused certain
work because of a jurisdictional dispute with the result
that Simmons discharged three of the carpenters including
'Anderson' s "lifetime guarantee " read as follows
Doors made by Anderson Wood Products Company, are clad with
Formica laminated plastic, and made of the finest materials and
workmanship They s.re free from defects that render them unserviceable
or unfit for the use for which they were intended If properly stored,
handled, installed and maintained , these doors are guaranteed against
defects in materials and workmanship for the life of the installation A
warp or twist of not to exceed 1/4 inch, determined by procedure No
CS 171-58 of the U S Dept. of Commerce, shall not be considered a
defect Any door found not to meet this guarantee will be repaired or
replaced without charge ( including reasonable labor cost) by the
manufacturer
355
the steward Respondent Union filed charges of unfair
labor practices against Simmons because of these
discharges. With Attorney Gchhard representing Simmons
and Mamet representing Local 742, this unfair labor
practice case was settled by an agreement reinstating
Stolley and the other two carpenters previously discharged
and providing for their "continued employment."
By the end of October, following the reinstatement of
the carpenters in accordance with the settlement
agreement. Respondents had reduced the number of
carpenters employed at the Hospital project to two-
Steward Stolley and Oestrich. The other carpenters
previously employed had been transferred to other
Simmons' projects
About mid-November 1967, and several weeks before
they were needed, approximately 80 of the plastic
premachincd doors were delivered at the Hospital project.
Although the project required only about 650 such doors,
it was thought as of November that some 800 doors would
be required
With one exception, the 1963 Mid-America Building
project in Decatur, the doors involved here were the first
plastic covered, prcmachined doors on any project in the
jurisdiction of Local 742. On the Mid-America Building
12-20 such formica covered. preinachined doors had been
hung by Local 742 without objection
Steward Stolley, having noted that these formica clad
doors were factory preniachined, called this matter to the
attention of John Foreman, business representative of
Local 742, who in turn requested the advice of Attorney
Mamet. Mamet advised Foreman that "there was a
Supreme Court Decisions upholding the position that
you've got the right to refuse to install these doors and
that they are bargaining unit work, and you can protect
the dimunition of the bargaining unit " Mamet further
advised, "Why don't you [Foreman] go in there and see if
you can talk to them [Vice President Neal of Simmons],
and, particularly, since you only have 80 doors .. why
don't you tell them you'll install these 80 doors and give
them an opportunity well in advance to cancel the
additional 800, the balance of the 800''"
Even earlier, on November 18, Vice President Neal,
suspecting that these prefabricated doors were going to
become a problem, had written Simmons' attorney for
advice on the matter.'
Acting upon Mamet's advice, on December 1, Foreman
telephoned Neal requesting a meeting about 10:30 a.m.
Foreman appeared at this conference accompanied by
Stolley Neal called Algie Brannon, a Simmons' job
superintendent on another project, to sit in on the
conference. Foreman opened the conversation by stating
that he thought there was a "problem" involving these
doors because the mill had done work that had been done
in the past exclusively by the carpenters on the jobsite.
Foreman maintained that this was a violation of the local
agreement. Neal got out a copy of the local agreement
and asked to be shown where the violation was. Foreman
stated, "It's in there, it's in there" but failed to point to
any particular provision of the agreement.' Neal then
explained that Simmons was bound by the specifications
of the project and pointed to specification 35 requiring the
'National Woodwork Manufacturers Association v N L R B. 386 U S
612
'This letter is not in evidence because a claim of attorney -client privilege
was raised and sustained at the hearing
'At the hearing Foreman testified that he was referring to the clauses of
the local agreement quoted, supra
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purchase and installation of premachtned formica faced
and edged doors Neal reiterated that his company had
no control" over the doors Stolley maintained that
"Doors are doors" and asked why the plastic doors
installed at the Adolph Meyer Zone Center had been
prepared on the site Neal explained that in the Meyer
project there were no specifications requiring premachined
doors There was some discussion of the formica taced
doors used in the Commons Building at Carbondale,
Illinois. which had also been fabricated on the jobsite.
Neal explained that the doors at Carbondale were
guaranteed only for 1 year contrary to the specifications
in the. Hospital project so that the Company had
purchased the Carbondale doors as "blank doors" and
prepared them in the field Foreman stated that it was the
Union's position that the carpenters had been deprived of
the work of fitting and machining the doors on the jobsite
and that, on the advice of counsel , he was informing Neal
that the Union "would not hang" the formica doors for
the Company or permit any other subcontractor to do so.
Foreman pointed out that the doors had been prepared by
mill employees who received lower wages than the
carpenters on the jobsite . Prior to the conclusion of the
meeting, Foreman advised Neal that. on advice of counsel,
he would hang the 80 formica doors that had arrived but
it was his (Neal's ) responsibility to tell the mill that was
manufacturing the doors to stop doing our [Local 742]
work." The meeting ended with both Neal and Foreman
deciding to leave the settlement of the matter up to their
respectlvP attorneys
The next overt move in this dispute occurred on
December 11 when. on orders of Robert Neal, Job
Superintendent Gordon Dyslin, accompanied by Simmons'
Estimator Robert Briscoe and Carpenter Foreman Catlin,
met by previous appointment with Steward Stolley and
carpenter Oestrich at 12.30 p.m. in the intensive care unit
where Dyslin requested Stolley and Oestrich to hang three
formica clad doors on the ground that the Hospital was
pressing for the completion of this unit Stolley asked,
"Didn't Mr. Neal tell you not to hang these doors" and
reminded Dyslin that there was still "a problem"
regarding these doors. Dyslin denied that Neal had told
him anything about the doors and again requested the
carpenters to hang the doors Stolley refused to do so
until the matter had been finally settled Dyslin then
ordered the carpenters back to the work they had been
doing prior to the meeting in the intensive care unit.
Just before 5 p.m that same day, after a long telephone
call from Neal regarding the "refusal" of the carpenters
to hang the prefabricated doors. Simmons' attorney, Paul
Gebhard, telephoned Mamct and advised Mamet that "his
boy Foreman" was refusing to hang the prefabricated
Anderson doors. Mamet, acknowledging that he was the
Local's attorney and had been previously advised of the
problem by Foreman, asked Gebhard if he had read the
National Woodwork case. Gebhard answered that he had
but that the case was not controlling because, in the
instant matter, the architectural specifications required the
prefabricated plastic doors and thus deprived Simmons of
.'control." Mamet voiced surprise that the specifications
called for preinachined plastic doors saying that this was
the first he knew of this but assured Gcbhard that Local
742 intended no product boycott. Mamet stated that it
was the policy of the Local and the International not to
install precut doors so that it would do Gebhard no good
to check with the International about that. Gebhard stated'
that he thought the Respondents' position was a clear
violation of law and Simmons would have to tile a charge.
Mamet suggested that "a possible solution could be
worked out where you could go ahead and hang your
doors, and yet the bargaining unit would be protected" by
negotiating a rate of pay additional for each of the
premachtned doors hung. Gebhard answered that this
"sounds to me like a payment for work not performed"
because there would be no work done by any one on the
.lobsite Mamet further suggested that any such suggestion
of premium pay should be made by Gebhard to Simmons
as Gebhard's own idea because of several cases Mamet
had had against Simmons in the recent past. Gebhard
answered that, while this didn't change his thinking, he
would do some further checking on it and would "get
back to Mamet" if the Company changed its position or if
he heard anything different.'
At -5 p.m. on December 13, 1967, Simmons telephoned
the following telegram addressed to John Foreman to
Western Union
AS WE \I7yISED WHEN \OL CAME TO OLR OFFICE ON
DrCEMJILR 1ST, PL RCHASE AND INSTALLATION 01 1ORMiCA
DOORS ON DEC\TLR AND MACON ('OL-NT\ HOSPITAL
PROJECT WAS REQLIRED By ARCHITECTS SPEC11ICAliONS.
V. F FI \L) NO CONTROL O\ LR SPECIFIC\liONS RLQLIRiN(,
PL R('H ASE OF 1111 SE DOORS. ON DECEMBER H. 1967 vv E
RIQL LSTFD C \RPE\TFRS fO 1NS I At i. T1IESr DOORS AND TO
DATL THEY HA\'L RFFLSLD. 1HLREEORF wL ARE EHING
UNI AiR f ABOR PRACTICE CiIARC,ES wiTIi NATIONAL LABOR
RELATIONS BOARD
No doubt this telegram was delivered by the following
day
On December 1-5, 1967, without having "gotten back"
to Mamet, Gebhard, on behalf of Simmons, filed the
charge against Local 742 in the instant matter Mamet
was so notified by a telephone call from the Subregional
Office in Peoria.
On December 19, 1967, Local 742. by Attorney
Mamet. filed an unfair labor practice charge against
Simmons claiming that Simmons had violated the
settlement agreement in Case 38-CA-378 by laying off
employees; by subcontracting bargaining unit work
without negotiating with Union, and refusing to negotiate
a rate for the installation of the prefabricated doors. The
Regional Office's refusal to issue a complaint upon this
charge was affirmed on appeal to the General Counsel
withythe comment that Respondent could urge its charge
of a refusal to bargain by Simmons as a defense to the
complaint already issued on the Simmons' charge against
Local 742.
Also on December 19, Neal received a telephone call
from Duff Corbin. International representative of the
Carpenters, who told Neal that he, Corbin, was aware of
the urgent need to complete the intensive care unit and so
he had made arrangements to have the three formica
doors hung in that unit. Neal expressed his appreciation
and added that Simmons, "of course, looks forward to
having this complete situation resolved, so we can proceed
with the hanging of all the doors." To this Corbin
answered that he "felt the situation would be resolved the
first of the week, which would allow us to proceed with
the hanging of the doors, the balance of the doors "
Steward Stolley and Oestrich promptly thereafter hung
the three prefabricated Anderson doors in the intensive
care unit as had been thus agreed. None of the other
'The above findings constitute a consensus of the testimony of Attorneys
Gebhard and Mamet as to their conversation There were several conflicts
between the two, but, fortunately, none vital enough to a decision of this
matter to require a credibility determination b) this Trial Examiner
LOCAL 742. CARPENTERS
prefabricated doors were hung at this time - nor was there
any further request that they be hung at this time.
On January 10, 1968. International Representative
Corbin, being a the Simmons' office on other business,
got in touch with Robert Neal and presented him with
two agreements prepared by Attorney Mamet which
provided that the doors in question would be hung but
that, in the event that the Union won the case before the
Board, the Carpenter employees would either be paid an
additional hourly premium of a stated rate for hanging the
premachined doors or the parties would thereafter
negotiate the premium to be paid the employees. Neal
accepted the proposed agreements and told Corbin that he
would review them and pass them on to his attorneys
This was the last heard of these proposed agreements until
they were introduced into evidence at the hearing.
On January 30, Gordon Dyslin, job superintendent, met
Harry Stolley, carpenter steward at the project, on the
south side of Hayes Street, and, in the presence of
Simmons' Bob Briscoe, asked Stolley if the carpenters
were ready to hang the formica doors. Stolley answered in
the negative, stating that the situation had not yet been
anuary 31. atstraightened out. On the next day. January'
approximately the same time and location the previous
scene was again repeated with Stolley again stating that
the carpenters were not yet ready to hang the formica
doors as the situation had not been straightened out yet.
However at this time Dyslin gave Stolley a copy of the
letter requesting the carpenters to proceed with the
hanging of the doors, the original of which had been sent
to Local 742.
This letter, dated January 31, 1968. read as follows
This letter constitutes a formal request by the J. L.
Simmons Company, Inc to the carpenters - -Employees
of the Simmons Company who are members of Local
No. 742 of the United Brotherhood of Carpenters and
Joiners of Airerica. to proceed immediately with the
work of instaJing on the above project the pre-cut
formica clad, laced and edged doors manufactured by
Anderson Wood Products Company, Louisville.
Kentucky. Thtse are the same doors that we have
previously requested you to install on this project. As
you know, installation of these doors is required by the
architects' specifications. The doors have been on the
job site and available for installation since November,
1967.
By letter dated February 1, 1968, Local No. 742, over
the signature of John Foreman, answered as follows:
After receiving your registered letter of January 31,
1968, regarding the installation of Pre Cut
Formica-Clad Doors at the Decatur and Macon County
Hospital project. To proceed immediately with the
work of installing same, I will as Business
Representative of the United Brotherhood of
Carpenters and Joiners Local 742 do here by grant the
right of my members to install the above-mentioned
product.
I did try to reach you by phone and found you were
out of town, so please consider this letter as formal
notification.
Admittedly this was the first occasion that Foreman
had instructed his members that they were free to install
the premachined plastic doors.
Thereafter Stolley and Oestrich with other carpenters
subsequently hired by Simmons proceeded to hang the
doors in controversy. This procedure was continuing at the
time of the hearing. There was no proof, however, that the
delay in the hanging of the doors had delayed the
357
completion of the project. There had been no strike or
picketing over this matter.
B Conclusions
It is axiomatic that, in order to prove a violation of
Section 8(b)(4)(i) and (ii)(B) of the Act, it is incumbent
upon General Counsel to prove that a union or its agents.
(1) Employed prohibited "means". i e.,
(i) "Induced or encouraged" employees to strike or to
refuse "to handle" any goods, or (ii) "To threaten.
coerce, or restrain" an employer,
(2) for a prohibited "object", i.e.,
(B) To force that secondary employer to cease doing
business with another employer, and
(3) that said union action was not legitimate primary
action.
The facts here show that both the Employer Simmons
and Respondents recognized the existence of a problem
between themselves over the premachined Anderson doors.
While discussing this problem and, indeed, while
suggesting remedies therefor to Vice President Neal and
Attorney Gebhard respectively, Respondents' Business
Agent Foreman and its Attorney Mamet both stated or
clearly indicated that Local 742 would not hang these
premachined doors because of their adverse affect on the
unit work of the jobsite carpenters. Under decided Board
cases these statements, although here perhaps considered
considerably out of context, are technically sufficient to
constitute prohibited "means" within Section 8(b)(4) of
the Act. I hereby so find.
Although I make this finding here, I fear that this rule
may well inhibit parties confronted with a problem of this
sort from freely, openly, and frankly discussing it in
ordinary day-to-day language one with the other in a bona
fide effort to solve the problem. Such a rule tends to turn
any earnest effort to find a peaceful solution to a problem
into a game to see which one can entrap the other into an
unguarded statement which might technically violate
Section 8(b)(4), or some other section of the Act, so as to
be able to run Co the Board and file a charge rather than
to locate a peaceful solution to the problem. It seems to
this Trial Examiner that many labor lawyers tend to
prefer to try lawsuits than to find peaceful solutions.'
There is not much difference between premachined and
blank doors but that difference has resulted in a great deal
of trouble and much litigation. The difference referred to,
of course, is the fact that the work of preparing blank
doors for hanging and hardware is performed by the
carpenters on the jobsite whereas, as the name implies,
prefabricated or premachmed doors come from the
factory completely prepared for hanging and hardware
thus eliminating much unit work and thereby taking
money right out of the pockets of jobsite carpenters.
Regardless of the financial effect upon the jobsite
carpenters, the change from blank wood doors to
premachined formica doors at the Hospital project by
Change Order No. 2 amounted to a financial bonanza to
Simmons. In the first place the records show that
Simmons charged Hospital $12,000 more for the
premachined doors than for the wood doors although the
premachined doors cost Simmons only $10,000 more, a
'Apparently this tendency leads to the good life for those specializing to
labor relations, for Bar Association statistics indicate that labor lawyers
eat "higher on the hog" than most of their brothers specializing in other
fields. In my opinion this tendency does not otherwise lead to good labor
relations
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clear $2,000 profit by reason of a paper change only. In
the second place the fact that the formica doors were
premachined whereas the wood doors were not amounted
to a saving of approximately $12,000 for Simmons by
reason of not having to pay the jobsite carpenters to
prepare those doors for hanging and hardware.10 Therefore
Change Order No. 2 to the plans and specifications for
this project alone made Simmons a clear profit of $14,000
consisting of the $2,000 from the Hospital and the $12,000
savings on pay to the jobsite carpenters.
In its brief Simmons presents the following argument:
3. The Union Has Not Traditionally Performed the
Work Sought. The union seeks to defend its illegal
boycott by claiming that the disputed work was work it
had traditionally performed. As stated above, even
given a valid work preservation clause covering work
that has been continuously and customarily performed
by a union, attempts to enforce such a clause by means
of a product boycott, where the employer does not
control the disputed work, is proscribed secondary
activity. Accordingly, the "traditionally performed"
defense, which is essentially an 8(e) defense, has
absolutely no relevance here. Nevertheless, the
contention of the union herein as stated by its counsel
[footnote omitted] is that the Board's "right to control
doctrine" is erroneous, and further, that the union's
activity here is protected because it was an attempt to
preserve work which it had traditionally performed.
Setting aside for the moment the clearly established
precedents on the "right to control," it is obvious from
the record in this case that the union has not in fact
traditionally performed the work which it now seeks.
There is no dispute over the fact that carpenters of
Local 742 have traditionally performed the work of
preparing wood doors of the type involved in the
National Woodwork case. Nor is there any dispute over
the fact that they have not traditionally done this work
on metal doors [citation omitted]. As to formica doors
involved in this case, the record is completely devoid of
any evidence whatsoever that members of the
Respondent union have ever prepared them to receive
hardware either on or off the jobsite. In fact, the only
evidence in the record on this point is to the contrary,
and shows that the union has installed doors identical
with those in dispute in the Mid-America Building (the
old Labor Temple) in Decatur, Illinois [citation
omitted]. Limited to the facts, the union cannot meet
the requirements of the carefully articulated definition
of traditional performance formulated by the Board and
adopted by the Supreme Court in National Woodwork,
supra.
In National Woodwork, the Board in adopting the
Trial Examiner stated-
The tasks of "cutting out and fitting" the material
listed in the second sentence of rule 17 are
obviously tasks which are normally performed by
carpenters. The record shows that there have been
occasions when millwork, including doors, came to
a jobsite without having been previously cut out
and fitted, that the tasks of cutting out and fitting
such millwork, including doors, were considered by
the contracting parties to be unit work to be
performed by the jobsite carpenters, and that the
carpenters on the jobsite did in fact perform those
tasks on those occasions. The "will not handle"
"This $12,000 comes from not having to pay jobsite carpenters for 3 to
4 hours work per door on each of 650 doors at $5 05 per hour.
sentence was the language used in an attempt to
protect and preserve this type of work for the
jobsite carpenters. [149 NLRB at 656-57.]
Stewart Stolley's answer to this claim of Simmons was
classic, "Doors are doors," and was also corroborated by
the testimony of the most honest witness to appear at the
hearing, Anderson's Sales Manager B. F. Potts, who
testified that formica doors could be and were being
prepared for hanging just as efficiently and well at the
jobsite as at the Anderson factory. It is true that the use
of formica doors at the Hospital project was in fact one of
the very first occasions on which formica doors had been
installed within the jurisdiction of Local 742. Some
formica doors had been prepared for hanging by jobsite
carpenters just outside the geographical jurisdiction of
Local 742. It is also true that some few of the Anderson
doors at the Hospital project required further preparation
by the jobsite carpenters in order for them to be properly
hung. In the light of the testimony that jobsite carpenters
were competent to prepare formica doors, even as they
were capable of preparing wood doors, nullifies the
Simmons' argument that it was not traditional work
because of the formica composition of the doors in
question " In this case "Doors are doors," whether wood
or formica. Accordingly I must, and hereby do, find that
the work of preparing doors, wood or formica, for
hanging and hardware, i.e., bevelling, routing, mortising,
and cutting for length, is the historical and traditional unit
work of carpenters at the jobsite.
The facts also prove that in their protests against and
refusal to handle the premachined doors on the Hospital
project, Foreman, Mamet, and Stolley all pointed out on
each such occasion that the use of premachined doors
eliminated or reduced the historical and customary unit
work performed by the jobsite carpenters as well as taking
money out of the carpenters' pockets. In addition
Foreman and Mamet both offered to hang the 80
Anderson premachined doors already delivered at the
jobsite if Simmons would tell Anderson to "quit doing our
[unit] work." Mamet and "Duff" Corbin, International
carpenter representative, offered to hang the Anderson
doors if Simmons would negotiate a rate for the hanging
of such premachined doors and thus take care of the loss
of that unit work. The whole protest by Respondents here
was against the premachining of the doors with its
resultant loss of traditional unit work for the jobsite
carpenters. Respondents throughout sought recovery of
the work lost either in fact and/or through additional
compensation. The Trial Examiner is fully convinced and
consequently must find that the object of Respondents'
protest over the use of these premachined doors was to
"it is interesting to note that in American Boiler Manufacturers
Association , 154 NLRB 285 and 154 NLRB 314, the same firm of
attorneys which represents Simmons here represented the Association there
and made the exact opposite contention , to wit, that the union there had
"waived" its claim to unit work of piping boilers at the jobsite by having
installed prepiped boilers without objection on several occasions in the
past In its brief on review after remand of the above cases, the Board had
this to say regarding this contention
To distinguish this case from Woodwork, therefore, petitioner's real
argument necessarily must be that a work preservation object
automatically loses its primary status, and becomes an improper basis
for union action, once any substantial amount of unit work is allowed to
be performed elsewhere Presumably, petitioner would require the union
not only to demand a contractual protection when the first packaged
boilers appear but, in addition, to strike for such a clause at that point
or else lose its rights forever. Apart from the fact that such a rule would
hardly be conducive to labor peace and intelligent collective bargaining,
petitioner 's argument is based upon a faulty view of Woodwork
LOCAL 742, CARPENTERS
preserve to the obsite carpenters their traditional work of
bevelling, routing. mortising, and cutting the doors to
length at the jobsite It was not a product boycott.
In addition the facts prove beyond question that
Respondents had no other objection to the use of doors
manufactured by Anderson provided, of course. that they
were not premachined so as to eliminate the
aforementioned traditional jobsite work. Consequently
Respondents had no purpose or object to cause Simmons
to cease doing business with Anderson. The only possible
"cease doing business" angle the Respondents might have
had was that Anderson should cease doing "our [unit]
work" which, at best, was purely coincidental and
subsidiary to the work preservation objective found above
There is in this case no showing, in the words of the
Supreme Court, that the Respondents' actions here "were
tactically calcula.ed to satisfy union objectives elsewhere."
The Union's objective here related solely to the
relationship of Simmons vis-a-vis its jobsite carpenter
employees
Up to this point on the question of "object" the instant
case is on all lours with the leading case on premachined
doors, National Woodwork Manufacturers Association v.
N.L R B.. 386 U S. 612, 644, where the majority opinion
holds:
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 he a neutral bystander, and the agreement or
boycott would, within the intent of Congress, become
secondary. There need not be an actual dispute with a
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 a 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. This
will not always be a simple test to apply. But
"[h]owever difficult the drawing of lines more nice than
obvious, the statute compels the task." Local 761,
Electrical Workers v. Lahor Board, 366 U.S. 667, 674.
That the "will not handle" provision was not an
unfair labor practice in this case is clear. The linding of
the Trial Fxaminer, adopted by the Board, was that the
objective of the sentence was preservation of work
traditionally performed by the jobsite carpenters This
finding is supported by substantial evidence, and
therefore the Union's making of the "will not handle"
agreement was not a violation of Section 8(e).
Similarly. the Union's maintenance of the provision
was not a violation of Section 8(b)(4)(B) The Union
refused to hang prefabricated doors whether or not they
bore a union label, and even refused to install
prefabricated doors manufactured off the lobsite by
members of the Union This and other substantial
evidence supported the lending that the conduct of the
359
Union on the Frouge jobsite related solely to
preservation of the traditional tasks of the jobsite
carpenters. [Citations omitted.]
'sAs a general proposition, such circumstances might include the
remoteness of the threat of displacement by the banned product or,
services, the history of labor relations between the union and the
employers who would be boycotted, and the economic personality of'
the industry See Comment, 62 Mich L Rev 1176, 1185 et seq (1964) 1
Thus the National Woodwork case stands for the
proposition that Respondents' work preservation object is
legal and permissible within the meaning of Section
8(b)(4)
However, here. unlike the National Woodwork case,
the plans and specifications, at least after Change Order
No. 2 on August 15, called for the installation of life
guaranteed, plastic, formica doors premachined at the
factory This gives rise to the argument that, when the
plans and specifications require factory premachined
doors, the project contractor has "no control" over the
assignment of the work of preparing the doors for hanging
and hence becomes the "neutral" secondary employer
regarding the Union's work preservation demand as the
assignment of that work lies elsewhere with either the
owner, his architect, or the manufacturer of the doors.
Accordingly, in its brief Simmons argues
Thus, it is clear under all known precedent that even
present a valid work preservation clause (concerning
work that the bargaining unit has traditionally
performed) an attempt to enforce such clause by a
product boycott where the employer cannot control
assignment of the work claimed is a violation of
Section 8(b)(4)(B) of the Act National Woodwork,
supra. accord, United Assn Pipe Fitters Local 455
(Atrierican Boiler Manufacturers) (3-M incident), 154
N.L R.B. 285, 290 (1965). enforced, American Boiler
Manufacturers Association s. N I_ R.B., 366 F.2d 815
(8th Cir. 1966).'2
As noted subsequently in the Simmons brief, the
National Woodwork case specifically did not decide this
"Right to control" issue because. as shown in footnote 3
of that decision. the respondent union there did not see fit
to appeal any part of the lower court's decision where the
plans and specifications were involved. This reluctance on
the part of the union there makes this Trial Examiner's
job that much more difficult here.
It is true that the American Boiler case, cited in the
brief, did in fact specifically approve the Board's "right to
control" doctrine. In last that was the only part of the
Board's Order approved in that decision, the remainder of
the case which the Board had dismissed was remanded to
the Board with the caveat.
Ccrttorari has been granted in National Woodwork
Mfgrs. Assn , supra, 384 U.S. 968, 88 Sup Ct 1863, 16
L Ed. 680, and helpful guidelines from the Supreme
Court upon the troublesome issues here presented may
reasonably be anticipated.
Simmons also argued in its brie) that the Board's
National Woodwork decision, where the Board had found
that the respondent union violated Section 8(b)(4)(B) of
the Act by hanging door, for an employer (Driscoll) who
paid the union a royalty therefor as well as by refusing to
hang the doors for an employer (McDonnell) who refused
to pay that royalty was authority for the proposition that
"The law firm representing Simmons here also represented American
Boiler Manufacturers Assn in the cited rase
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a contractor working with specifications requiring
premachined doors need not bargain with the union as
such actions would not be a defense to a secondary
boycott charge. On this point the Board's decisions on
remand in the American Boiler cases are of interest.
In its decisions on remand after the decision of the
Supreme Courf in the National Woodwork case, the
Board reaffirmed its previous dismissals and, in addition,
indicated a propensity to reverse the 3-M part of that
decision, specifically cited by Simmons, if that had been
possible under the terms of the remand. Regarding the
3-M part of the case, the Board held in pertinent part:
1. The alleged violation of Section 8(e). As the Board
found in its original decision, the members of the
fabrication committee on August 27 entered into a new
ad hoc agreement to which Local Union No. 455, the
Contractors Association and Hickey (by virtue of its
membership in the Association) were parties, to the
effect that the installation of the packaged boilers in
this building was prohibited by the fabrication clause.
We have found above that the fabrication clause was a
lawful clause designed to preserve and reacquire
trim-piping work traditionally performed by employees
in the Contractors Association unit. To the extent that
the ad hoc agreement had the same lawful object as the
fabrication clause, it was, under the guidelines
established by the Supreme Court, a primary
work-preservation agreement outside the scope of
Section 8(e). We note, however, that neither the
Contractors Association nor any of its members,
including Hickey, which contracted merely to install
packaged boilers ordered by 3-M, was in a position to
assign the trim-piping work at this project. Even if, in
these circumstances, the Contractors Association and
Hickey were regarded as secondary employers, and the
August 27 ad hoc agreement as a "hot goods"
agreement within the scope of Section 8(e), because
these employers had no control over the assignment of
the work, we would find, nevertheless, that as the
trim-piping work in dispute was to be performed at the
site of the construction, the August 27 agreement was
protected by the construction industry proviso to
Section 8(e), and was therefore lawful.
The Board then found Local 455 did not violate Section
8(b)(4)(A).
In the companion American Boiler case the Board's
brief on review referring to the Tonka Toys incident says.
As set forth in the counterstatement (pp. 6-7, supra),
Lamb had ordered the packaged boiler for the Tonka
Toys project and it was his employees who were
scheduled to install the boiler." After the boiler had
been delivered, the Union approached Lamb and
attempted to have the trim-piping removed and
reattached prior to installation. There is nothing in the
record which demonstrates that Lamb could not have
granted this demand. Installation of the packaged boiler
as delivered was, in effect, an assignment to the boiler
manufacturer of work the Union claimed for Lamb's
unit employees. Compare Fibreboard Paper Products
Corp. v. N.L.R.B., 379 U.S. 203. Inasmuch as the
Union was attempting "to prevent the assignment of
such work to employees outside the unit" [R.34], by
demands upon the unit employer, the "dispute was
primary" as the Board concluded. Thus Lamb was the
proper target of union pressure. [Citations omitted.] It
is well settled moreover that any incidental effect this
primary activity might have had on any suppliers of
Lamb does not render unlawful the Union's otherwise
lawful conduct. [Citations omitted.]
Petitioner disputes the propriety of the Board's
characterization of Lamb as the primary employer [Br.
27-28]. According to Petitioner the evidence shows that
although it was Lamb who ordered the packaged boiler,
it was some unidentified architect who specified that a
packaged boiler should be used. Consequently the
argument concludes, Lamb lacked control over the
disputed work and would have been deemed a neutral
employer. But this argument fades before the record.
The fact is that such an architect's specifications are
usually accompanied by language allowing an
"equivalent or approved equal" alternative to the
packaged boiler [R. 270], and that a field assembled
boiler would have been a fair equivalent....
In these circumstances, the Union, can hardly be said to
have pressured the wrong employer when it approached
Lamb. It was Lamb who had ordered the packaged
boiler, Lamb who employed the Jobsite employees who
would suffer from the loss of work, and Lamb who
could remedy the Union's complaint by purchasing a
conventional boiler instead.
"Contrast Lamb's position with that of 3-M , in the St . Paul case, who
had ordered the packaged boiler, but was not the employer of the unit
employees seeking the trim-piping work See pp . 6-8 of the Board ' s brief
in the St. Paul case
Another incident, Pierre Aircon, in that same Board
decision, 167 NLRB No. 79, is also of interest here for
the Board there held:
3. The alleged violation of Section 8(b)(4)(ii)(B). The
Board in its original decision found that the fabrication
committee's requirement of reasonable compensation"
by Pierre Aircon Company for its breach of contract
constituted a peaceful method of resolving this dispute,
and, therefore, Local Union No. 455 did not threaten,
coerce, or restrain employers by its conduct in
connection with this project within the meaning of
subsection (ii) of Section 8(b)(4). We have again
considered this matter and are of the same view.
Moreover, even if the fine were considered coercive, it
was directed towards Pierre Aircon, which was the
primary employer as far as the record shows and was
for the purpose of preserving unit work. It therefore
was not prohibited by Section 8(b)(4)(B).
More recently, however, despite its decision on remand
in the American Boiler cases, a divided Board again
definitely reverted to the "right to control" doctrine with
approval in Pipe Fitters Local No. 120 (Mechanical
Contractors' Association of Cleveland, Inc.), 168 NLRB
No. 138, where the Board found the union in violation of
Section 8(b)(4)(ii)(B) as regarded "cross over" piping
required in the plans and specifications but not in regard
to "end-pocket" piping which was not so required.
In the light of the above legal history I do not consider
myself necessarily bound by the Mechanical Contractors'
decision even though it be the Board's latest on the point
so far as my research shows.
There are a few features of the instant matter which are
of assistance in drawing that line "more nice than
obvious":
At the time the Simmons-Hospital contract was signed
"The fabrication committee required Pierre Aircon Company, on
October 22, 1963, to pay $100 for violating the fabrication clause by
"entering into a contract . . with the Deluxe Check Company for the
installation of a . boiler [which] arrived with the trim on."
LOCAL 742, CARPENTERS
on June 9, the plans and specifications for that project
called for wood doors with the historical preparation
thereof for hanging to be done by the carpenters at the
jobsite This situation existed at the time of the first
prejob conference. The second preiob conference and the
finalization of Change Order No. 2. substituting
premachined doors for the wood, occurred the same day.
But Local 742 received no notification of Change Order
No. 2 at any time prior to the December 1 attempt by
Local 742 to bargain the matter out with Simmons
Hence, until that date, Local 742 had no means of
knowing that its historical unit work had been
subcontracted out by anyone to Anderson No work
preservation contract clause is required when unit work is
subcontracted out. Fibreboard Paper Products v.
-V L.R B , 379 U S. 203. Its objection to this
subcontracting was made promptly upon the discovery of
the premachined doors to the immediate employer of the
employees whose work was thus being lost.
Actually the facts show that the premachining of the
doors as well as the so-called lifetime guarantee required
by the specifications were of no importance to either
Hospital or its architect Hospital. through its manager.
Perry, acknowledged that all it wanted was plastic lormica
doors and that there had been no discussion of either
premachining or the lifetime guarantee of said doors. The
architect's sole interest, as its representation admitted, wao
that the doors looked nice when hung.
It thus looks as though the premachining and lifetime
guarantee got into the specifications because some young
architectural clerk, like young law clerks, discovered some
nice sounding Itnguage in other plans and specifications
and decided to copy same into these plans and
specifications and for no other reason.
There was nothing sacrosanct about the plans and
specifications of this project. They had been changed
before, as for example, Change Order No. 2. Also the
specifications for the lead doors had been changed at the
suggestion of the door manufacturer Simmons could have
suggested the change in specifications here without
trouble
As previously noted, neither Hospital nor its architect
knew nor cared about the prcmachining or the lifetime
guarantee. They would have had no objection to another
change of the plans and specifications in this regard. Such
change would a,so have been satisfactory to Anderson
from its hid on the wood doors and from Potts' testimony
which also proved that such a change would have had no
effect upon the doors. Potts also indicated that
"something" could have been worked out even in regard
to the lifetime guarantee.
Neither Hospital. its architect, or Anderson was even
given the opportunity to reject a change in the
specifications relating to the doors. Simmons, the
self-proclaimed "neutral" as well as the only party with a
361
financial stake in the matter, rejected the sugeestions of
Local 742 for all parties without consultation by filing the
unfair labor practice charges which started the instant
case
As previously noted Change Order No 2 resulted in a
$14.000 bonanza to Simmons, an extra $2,000 over cost
from Hospital and $12.000 right out of the pockets of the
employee carpenters due to the elimination of unit work
already included in the Simmons contract with Hospital
because in the original hid the wood doors were not to
have been premachined
Rather than to ask for a very possible change in the
specifications or to bargain a new rate for hanging
premachined doors as suggested by f=oreman and Mamet,
the attorneys for Simmons chose to file the charges here,
thus eliminating entirely these possible peaceful solutions
of the problem through collective bargaining.
Implicit or explicit in the suggestions of Local 742 for a
peaceful solution of the problem existing over the loss or
dimunition of its unit work was the change in the plans
and specifications permitting the return of the traditional
unit work (preparing the doors for hanging) or its
equivalent (a rate for hanging premachined doors) Each
of these solutions related directly to the labor relations of
Simmons vis-a-vis its own carpenter employees.
Even if we accept the Board's per se "right to control"
doctrine regarding the plans and specifications, still
Simmons here had control over a sum of $14,000 with
which to bargain a new rate for the hanging of what
Simmons here maintains to have been a new product.
Thus Simmons was not without control even under that
doctrine.
It was thus Simmons' refusal of the
collective-bargaining principle which obstructed and
prevented the reaching of a peaceful solution to the
problem, whereas it was Local 742 disappointed in
Simmons' refusal to bargain which hung the premachined
doors with some slight delay but without delaying the
completion of the building in any way
Thus in this case we find the use of prohibited "means"
but for a legal, legitimate "object" with the Union's
action in regard to both being direct primary action
vis-a-vis the employer of the carpenters involved. Thus
under the principles of the National Woodwork case,
Local 742 has not violated Section 8(b)(4)(B) of the Act.
With the legal issues thus disposed of, the Trial
Examiner wants to express the candid opinion that, if
there had been more bargaining collectively and fewer
unlair labor practice charges filed in the instant matter.
everybody would have been better off financially except,
undoubtedly, the lawyers.
Accordingly, this Trial Examiner hereby recommends
that the complaint in the instant matter against the
Respondents here he d..,misscd in toto