168 N.L.R.B. 893 (N.L.R.B. 1967)

Local Union No. 26, Sheet Metal Workers

National Labor Relations Board - Board DecisionsDec 13, 1967

168 N.L.R.B. 893 (N.L.R.B. 1967)

LOCAL UNION NO. 26 , SHEET METAL WORKERS Local Union No. 26 of Sheet Metal Workers' Interna- tional- Association , AFL-CIO, and Sheet Metal Workers' International Association , AFL-CIO and Reno Employers Council. Cases 20-CB-1557 and 20-CC-624 December 13,1967 DECISION AND ORDER BY MEMBERS BROWN , JENKINS, AND ZAGORIA On May 3, 1967, Trial Examiner Louis S. Pen- field issued his Decision in the above-entitled proceeding, finding that Respondents had engaged in and were engaging in certain unfair labor prac- tices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondents and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. Subsequently, the Respondents filed an answering brief. Pursuant to the provisions of Section 3(b) of the - National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers-Pin connection, with these cases to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby- adopts the findings, conclusions, and recom- mendations of the Trial Examiner. i ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that Respondents, Local Union No. 26 of Sheet Metal Workers ' Interna- tional Association , AFL-CIO, and Sheet Metal ' In adopting the Trial Examiner 's findings that article VIII, section 3, and the contract proposal submitted on July 15, 1966 , pertaining to acticle I, section 1, were violative of Section 8(e) and that Respondents ' strike was therefore violative of Section 8(b)(4)(i ) and (ii)(A) of the Act , we find, contrary to the Trial Examiner, that the proposed article I, section 1, was not intended as a bona fide unit acquisition clause but was instead a tacti- cal maneuver designed , as Respondents concede , to induce acceptance of article VIII, section 3 . Consequently inasmuch as article I, section 1, was not seriously proposed or itself a strike object , we do not adopt any finding of violation based on this article, nor do we deem it necessary to pass on his views as to the legality of clauses aimed bona fide at "unit acquisition." Our holding herein is rather that, throughout the critical period, Respond- ents insisted upon and struck for article VIII, section 3 , which is unlaw- ful under Section 8(e) of the Act, and they thereby violated Section 8(b)(3) and 8(b)(4)(i) and (ii)(A) 893 Workers' International Association , AFL-CIO, their officers, agents, and representatives , shall take the action set forth in the Trial Examiner 's Recom- mended Order, as so modified. 1. Delete from paragraph 2(a) of the Trial Ex- aminer's Recommended Order that part thereof which reads "or the alternative July 15, 1966, proposal." TRIAL EXAMINER'S DECISION Louis S. PENFIELD, Trial Examiner: This proceeding was heard before me in Reno, Nevada, on January 10, I1, and 12, 1967, upon a consolidated complaint of the General Counsel and answers of Local Union No. 26 of Sheet Metal Workers' International Association, AFL-CIO, herein called Respondent Local, and Sheet Metal Workers' International Association, AFL-CIO, herein called Respondent International. Respondent Local and Respondent International will be referred to jointly hereafter as Respondents. i The issues litigated were whether or not Respondents violated Section 8(b)(3) and 8(b)(4)(i) and (ii) (A) of the Act. It is the cen- tral contention of the General Counsel that these sections of the Act were so violated because Respondents en- gaged in picketing with an object of compelling the Charg- ing Party to become signatory to a collective-bargaining contract containing provisions violative of Section 8(e). Respondents acknowledge picketing with an object of ob- taining a contract containing two of the alleged unlawful clauses, but assert that such clauses are not violative of Section 8(e) and thus that the picketing conducted had a lawful object. Upon the entire record, including consideration of briefs filed by the parties'2 and upon my observation of the witnesses, I hereby make the following: FINDINGS OF FACT I. THE SETTING IN WHICH THE CONTROVERSY AROSE Reno Employers Council is an organization of,em- ployers , with a principal place of business in Reno, Nevada. Reno Sheet Metal Contractors, herein called the Association, is a division of the Council whose members are contractors engaged in sheet metal work in the' build- ing and construction industry in northern Nevada. The Association has for a number of years bargained collec- tively on behalf of employer-members of the Association with Respondent Local. It is admitted that during the past ' The consolidated complaint issued on October 18, 1966, and is based on charges each of which was filed on July 6 , 1966, and each of which was duly served thereafter on each respective Respondent. 2 Briefs were filed by the General Counsel and Respondents Counsel for the Charging Party submitted a letter whereby he, in substance , joined in and adopted the brief of the General Counsel. Attached to this letter counsel submitted an affidavit of Clinton G. Knoll purporting to recount a conversation which Knoll had with counsel for Respondents immediate- ly following the conclusion of the hearing herein. Counsel for Respond- ents subsequently submitted a letter denying the accuracy of the con- tents of the affidavit and protesting its consideration by me The affidavit submitted refers to matters which are not part of the record before me and it has been disregarded in my consideration of the case. 168 NLRB No. 118 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD year employer-members of the Association received goods and material in the State of Nevada valued in ex- cess of $50,000 which were shipped directly to them from points outside the State of Nevada. I find that the busi- nesses of the employer-members with whom Respondent Local bargains collectively affect commerce within the meaning of the Act, and the assertion of jurisdiction over the subject matter of this controversy to be appropriate. I find both Respondent Local and Respondent Interna- tional to be labor organizations within the meaning of Section 2(5) of the Act. For many years past the Association, acting on behalf of its employer-members, has been the party to succes- sive collective-bargaining agreements with Respondent Local. The most recent contract which preceded the con- troversy herein expired on June 30, 1966, and described the bargaining unit as the following employees of the em- ployer-members of the Association: All employees engaged in the manufacture, fabrica- tion, assembly, handling, erection, installation, dismantling, reconditioning, adjustment, alteration, repairing, and servicing of all ferrous or non-ferrous sheet, metal work of No. 10 U.S. gauge or its equivalent, or lighter gauge and all other materials used in lieu thereof, all shop and field sketches used in fabrication and erection, including those taken from original architectural and engineering drawings or sketches and all other work included in the ju- risdictional claims of Sheet Metal Workers Interna- tional Union. It is not disputed and I find the foregoing unit to be ap- propriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act. It is likewise not disputed and I further find that at all times material to this proceeding Local 26 has been and now is, the representa- tive for purposes of collective bargaining of a majority of the employees in such unit, and is thereby the exclusive representative of such employees within the meaning of Section 9(a) of the Act. In anticipation of the expiration of the 1964 contract on June 30, 1966, representatives of the Association and Respondent Local commenced a series of negotiation meetings in late May. It is undisputed that on or about July 1, 1966, after the old agreement had expired and no new agreement had been negotiated, employees of the employer-members of the Association went on strike, and thereafter engaged in picketing to support certain strike objectives. While various matters remained not fully resolved at the time of the strike, Respondents acknowledge that two of the contract proposals the General Counsel alleges to be unlawful were strike objec- tives. Respondent International, however, denies any responsibility for causing the strike and the issue of its responsibility will be considered below. In view of the foregoing I find that Respondent Local caused the employees to strike with an object of "forcing or requiring" employer-members of the Association to enter into a confract containing clauses allegedly violative of Section 8(e). This will suffice to establish a violation of Section 8(b)(4)(i) and (ii)(A) if such clauses are properly found to be so violative. The alleged 8(b)(3) violation rests solely in a similar foundation. Since I have found Respondent Local to be the statutory representative, a breach of its statutory bargaining duty will be properly found only if the same clauses are unlawful within the meaning of Section 8(e). The General Counsel introduced certain documentary evidence and called five witnesses to support the allega- tions of his complaint. Respondents rested without calling any witnesses, or offering any other evidence. Ac- cordingly the findings below are based on uncontradicted evidence. The sole issue remaining is the legality of the contract proposals found above to be an object of the strike. To reach a conclusion on this issue we must consider their content , the scopt of the negotiations concerning them, and the character of the business operations to which they are to apply. II. THE 1966 NEGOTIATIONS A. The 1966 Contract Proposals The practice followed for many years in negotiations was for Respondent Local to present to the Association its proposals in two basic parts. The first part consisted of a printed form entitled Standard Union Agreement. Respondent Local obtained this standard form from Respondent International. Article 27, section 1 of the constitution of Respondent International provides that Respondent International "shall prepare and furnish to each local a uniform agreement to be used in all negotia- tions." While section 3 of the same article indicates that in certain instances deviations from the standard form may be permitted, it also provides that "no local union . shall waive or relinquish claim to any work specified in the jurisdictional claims of [Respondent International] . except with the written consent of the General Presi- dent . . " The standard form contains numerous provisions relating to contract coverage and a variety of clauses covering working conditions which ' had been agreed upon by Respondent International and Sheet Metal Workers' National Association, a national or- ganization of contractors in which employer-members of the Association did not hold membership. The second part of the proposals submitted was in the form of an ad- dendum prepared by Respondent Local which contained local wage proposals and a variety of other matters ap- plicable to local conditions. Article 27 of section 5 of the constitution provides in part that "should the local union and the employers fail to agree upon the terms and condi- tions of employment , local union shall immediately notify [Respondent International] . and be governed thereafter by the instruction and advice received from [Respondent International]." The standard form agreement proposals submitted to the Association contained the following two clauses which the General Counsel claims to be unlawful: ARTICLE II SECTION 2. Subject to other applicable provisions of this Agree- ment, the Employer agrees that when sub-contract- ing for prefabrication of materials covered herein, such prefabrication shall be sub-contracted to fabricators who pay their employees engaged in such fabrication not less than the prevailing wage for com- parable sheet metal fabrication, as established under the provisions of this Agreement. * LOCAL UNION NO . 26, SHEET METAL WORKERS 895 ARTICLE VIII SECTION 3. Notwithstanding the provisions of Section 2 of this Article and Section 2 of Article II, the following items may be manufactured for sale to the trade or purchased at the rates specified below: 1. High pressure pipe and fittings (local build- ing and construction wage rates). 2. Ventilators (production wage rates). 3. Louvers (production wage rates). 4. Automatic dampers (production wage rates). 5. Radiator and air conditioning unit enclosures (production wage rates). 6. Fabricated pipe and fittings for residential in- stallations only (production wage rate). 7. Mixing (attenuation) boxes (production wage rates). 8. Plastic skylights (production wage rates). 9. Kitchen equipment (industrial rates). 10. Air diffusers, grilles, registers (production wage rate). 11. Sound attenuators (traps) (production wage rate). In addition to the foregoing, contract proposals which appeared in the 1966 addendum included a proposal which the General Counsel alleges to be unlawful. The addendum is generally referred to as item 17 and reads as follows: 17. Contractors having material fabricated and/or assembled outside the jurisdiction of Sheet Metal Workers' Local 26 shall furnish to the Union and the Contractors Association certified payroll and what other proofs the Union or the Association may deem necessary to prove that the wage scale specified in Article II, Section 2 and Article VIII, Section 1, of the Standard Form of Union Agreement has been paid for such fabrication, save and except straight round pipe, round elbows and boots used in the re- sidential construction field of single dwellings. It being expressly understood and agreed that heating, ventilation and air conditioning systems which serve more than a single dwelling or apartment, shall not be considered a single dwelling and all material fabricated for the above mentioned systems shall be fabricated and/or assembled under the Building Trades scale of wages. It also being expressly un- derstood and agreed that all materials, insofar as possible, shall be fabricated and/or assembled within the jurisdiction of Sheet Metal Workers' Local Union No. 26. Certification must be performed by a Certified Public Accountant. Certification must ac- company delivery of materials. B. The Course of the Negotiations The first meeting regarding the 1966 contract took place on May 20. Thereafter a number of meetings were held between that date and June 30 when the 1964 con- tract expired without agreement having been reached on a new one, and the strike ensued. At the May 20 meeting the Association first raised a1 question concerning the meaning of article VIII, section 3. Union Representative Donovan described its purpose as "to prevent the employers from buying materials at a production rate," and as precluding the employer "from going out and buying materials at a production rate when it should be the construction rate." The Association stated that it regarded this as a substantial departure from the previous contractual relationship, and that it would have to give the matter further consideration. At the time of the next meeting on June 7, Respondent Local had submitted the item 17 proposal in its ad- dendum. Again the Association raised the issue of article VIII, section 3, pointing out that thereby "we felt they were trying to dictate to the employer what they should pay for materials." Union representatives informed the Association that the proposals in article VIII, section 3 were a "must," and "they had instructions from the Inter- national and couldn't even deviate from it." Union Representative Knudson further advised the Association "that deletion of that would encourage non-union manu- facturers to sell their materials to the installers at the ex- pense of union members." The Association at this time submitted its position on many of the Union's proposals, and some of these were discussed although no definitive conclusions were reached. The meeting concluded with a request by union representatives that the Association meet with Charles Artman, a representative of Respond- ent International, who might be able to "explain this thing to you better than we can, just exactly what their in- tentions are." At the next meeting, held on June 10, Artman was present. The Association protested to Artman that it re- garded the proposal as "an attempt on the part of the union to control the prices the employers were to pay for their material." Artman replied that the contract had been negotiated by Respondent International and the National Association of Sheet Metal Contractors, and that such contractors had encouraged the proposals because they felt they "would provide fair competition within the in- dustry." Artman explained that article VIII, section 3, came about "at the insistance of fabricators who were members of the National Association who wanted protec- tion ... that the idea was that fabrication of the products would be [at] competitive rates." Knoll asked Artman what would happen if an employer refused to adhere to article VIII, section 3 and went into the open market and "got the best deal be could for any product he wanted to buy." Artman replied that such conduct would be a breach of contract and would be handled under the con- tract grievance procedure. Harry L. Banta, an employer- member of the Association present at the June 10 meet- ing, asked Artman what would happen if the employers obtained materials from one or two named manufacturers from whom they had been regularly purchasing. Referring to these manufacturers by name Artman replied "we don't deal with Cairnes or McQuay." Employer-member Kearney corroborates Banta, stating that Artman told them at this meeting that "the McQuay Company and the Cairnes people were not in the fold of the union." Artman 896 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD was also asked what would happen to an employer if the agreement were signed and the employer already had a large stock of some particular listed item on hand. Art- man replied that material in stock could be utilized but that "thereafter they wanted the employers to live up to it." In what little discussion there was of item 17, Artman indicated that he regarded this as protection to the em- ployers against out-of-State contractors who might bring cheaper products into the area and place the employers in an untenable competitive position. Artman did not attend the next meeting held on June 17. Numerous matters were discussed by the parties at considerable length at this time. The Association in- dicated that it would not retreat from its previous position on article VIII, section 3. Donovan reiterated that the inclusion of such provision was a "must ," and that Respondent Local could not deviate from the provisions which had been presented. At the next meeting which took place on June 27 vari- ous items were reviewed. Employers pointed out that the existing contract was due to expire in a few days and pleaded with Respondent Local "to get off their demands on this Article VIII, Section 3." Donovan replied that "if we cannot agree on Article VIII, Section 3, there was no point in going any further in our discussions ." Knoll re- peated that the Association regarded the section as un- lawful and that it intended to take all legal recourse at its disposal to establish this. The final meeting before the expiration of the contract took place on June 29. At this time the Association proposed a wage increase greater than what it had offered before, and made a number of other concessions. It did not however retreat from its previously taken stand on ar- ticle VIII, section 3. According to Knoll, following a cau- cus, the union representatives returned and told the em- ployers that the proposals were generally acceptable and would be recommended to the membership except for ar- ticle VIII, section 3. At this point Donovan stated "why don't you get us off the hook? You ought to know by this time that the International won't let us change the stan- dard form." Once again the Association repeated that the employers would not accept that proposal and the meet- ing terminated. Donovan proposed a further meeting with Artman. The employers indicated a willingness to meet with Artman, but declined to make any concession in- sofar as article VIII, section 3 was concerned, and declined to extend the existing contract. Knoll was advised on June 30 that the employees had rejected the Association's proposal, and that they would be going out on strike on July 1. Throughout the course of the negotiations, prior to the strike, apparently there was no discussion of article I, section 2 . As noted above this section as presented in the 1966 standard form was substantially similar to a clause in the 1964 contract. Its relationship, if any, to article VIII, section 3, or to item 17, insofar as this record shows, was not considered during the negotiations, and the Association appears at no time to have voiced any ob- jection to its inclusion, or to have suggested that article II, section 2 considered in conjunction with article VIII, section 3 might carry an unlawful connotation. It appears that in the course of the negotiations, the discussion centered principally on article VIII, section 3. Item 17 was of course presented, and apparently at all times the Association objected to its inclusion in the 1966 agreement . It is the position of the Association now, and presumably it was its position during the course of the negotiations , that the purpose of item 17 was to imple- ment and to provide a means of enforcement of the al- leged illegal provisions of article VIII , section 3. The As- sociation at all times grouped the two together when voic- ing its objections to the legality of the union proposals, but the precise manner in which this implementation was to be effected was not explored by the parties during the negotiations. C. The Nature of the Work of the Employer-Members of the Association The employer-members of the Association are contrac- tors who engage primarily in sheet metal installation at various job sites where residential and commercial con- struction is taking place . Each employer maintains a shop with some manually operated machinery, and employs journeymen and apprentice sheet metal workers. Some items used on the construction jobs are, and always have been, fabricated in these shops. No employer, however, fabricates or manufactures items in his shop for sale to other employers. The principal item fabricated in the shops is square pipe which is used extensively in sheet metal installations . Most other items including the nine products listed in article VIII, section 3 when needed for a construction job had been regularly purchased in the open market from suppliers located in various parts of the country. Not one of the listed items ever had been regu- larly fabricated in the shops of any of the employers in the unit. In many instances fabrication was impossible and had never been undertaken. On rare occasions employers might fabricate high pressure pipe fittings, round pipe or round pipe fittings, and some types of louvers. This would only come about, however, when some special or unusual situation arose in which a usable item of this nature was not readily available from a supplier. These employers do not have in their shops the type of machinery suitable for producing any of the listed products on a mass production basis. For the special and rare situation where an em- ployer has had to fabricate an item in his shop the cost will be many times that of the purchase of the same item from a regular manufacturer. The foregoing is based on the undisputed testimony of two of the employer-members of the Association. I declined to permit the General Counsel to call the remaining employer-members of the Association on the ground that their testimony would be cumulative when it was represented that each of the others would testify that his operation was carried on in substantially the same manner as that already described. Respondents, although accorded the opportunity to do so, adduced no evidence whatsoever to contradict the assertion that any employer in the unit operated differently insofar as the purchase or fabrication of article VIII, section 3 items is concerned. From this undisputed evidence as to the nature of the operations of the employer-members, I conclude, and find, that not one of the items listed in article VIII, sec- tion 3 is fabricated with sufficient regularity by em- ployees of the employer-members so that work on such items can be defined as unit work. Nor can such work be described as fairly claimable for such unit employees. While unit employees may have sufficient skills to fabricate at least some of the article VIII, section 3 items, it is significant that they have never been called upon to do so except on rare and sporadic occasions, and then only to meet unusual and emergency situations. Prohibi- LOCAL UNION NO. 26, SHEET METAL WORKERS tive costs render any other mode of operation impractical. Work which is not regular unit work can be regarded as fairly claimable unit work only in limited circumstances. In Meat and Highway Drivers, Local Union No. 710, et al. (Wilson & Co.) v. N.L.R.B., 335 F.2d 709 (C.A.D.C.), the court found work to be fairly claimable for unit employees where it was not only of a related character, but was actually work which formerly had been done by unit employees. The court viewed the union's aim as the recapture of unit work and as having a sufficiently close relationship to present unit work to render it "fairly claimable." While no doubt this is not the only situation in which work may be regarded as fairly claimable for unit employees, certainly in the instant case where it is shown that at no time had unit employees ever engaged in regular fabrication of the nine items, no warrant exists for describing the work as fairly claimable for unit employees, and I so find. While the 1964 agreement was in effect employer- members of the Association, as they had always done, purchased each of the nine items listed in article VIII, section 3 on the open market. Article VIII, section 3 pur- ports to require that henceforth each of the nine items was to be purchased only from suppliers who pay their own employees certain specified rates. The section would limit the purchase of high pressure pipe and fittings from employers paying "local building and construction wage rates," the purchase of kitchen equipment from em- ployers paying "industrial rates," and the purchase of all other items listed in the section from employers paying "production wage rates." The contract itself does not purport to specify the meaning of such rates. However, with the exception of the term "industrial rates" the record otherwise shows the relationship which exists between the different rates listed. According to the un- contradicted testimony of Union Representative Donovan, Respondent International charters both production locals and building and construction locals. Respondent Local is a building and construction local. Wage rates fixed for employees covered by contracts of building and construction locals are higher than rates for employees covered by contracts of production locals. Donovan testified that the reference to production wage rates in article VIII, section 3 was intended to refer to the wage rates of production locals of Respondent Interna- tional. There is no evidence concerning the meaning of the term "industrial rates."3 From the foregoing it appears that the basic rates in Respondent Local's contract would be building and con- struction wage rates which would be at a higher level than the production wage rates of employees in Respondent International's locals, and I so find. No provision comparable to item 17, which was sub- mitted as a section of the addendum in 1966 by Respond- ent Local, appeared in the 1964 contract. D. The Poststrike Negotiations Following the commencement of the strike on July 1, 1966, the parties again met in the presence of a Federal conciliator on July 13 in a further effort to resolve their differences. The Association declined to discuss further 3 While I deem it likely that such rates are equal to or less than produc- tion rates, in the absence of any specific evidence a definitive finding to this effect cannot be made . Since the term is used in reference to only one 897 article VIII and item 17, reiterating its position that such clauses were illegal, and that it would not agree to a contract which contained them. Respondents did not initially retreat from their earlier insistence that such clauses be in the contract, and while some discussion ensued concerning other contract issues no definitive conclusions resulted from the meeting. On the following day the parties once again met, this time with Inter- national Representative Artman present. Again no defini- tive results were achieved, and the meeting adjourned with no change in position by either side as to article VIII and item 17. On the following day, however, Respondent Local ad- dressed a letter to the Association submitting proposed amendments to the standard form agreement and to the addendum, representing that such had not been submitted on the preceding day because the employers had walked out of the meeting before Respondents had had an oppor- tunity to do so. The proposed amendments to the stan- dard form agreement follow: Article Ito be amended as follows: The Employer agrees that all items and materials of ferrous or non-ferrous metal of U.S. No. 10 gauge or its equivalent or lighter gauge and all other materi- als used in lieu thereof, including frames, stiffeners, flanges, reinforcements and braces used in connec- tion with the work described in S.F.U.A. Form A-4-66, Article 1, Section 1, shall be fabricated in the shop of the Employer. This shall include high pressure pipe and fittings, ventilators, louvers, auto- matic dampers, radiator and air conditioning unit en- closures, pipe and fittings for residential installations, mixing (attenuation) boxes, plastic skylights, kitchen and food equipment, air diffusers, grilles, registers and sound attenuators (traps). Article VIII, Section 2 to be amended as follows: Delete the two words "or elsewhere" appearing between the words "union" and "for" in the second line of this Section 2. Article VIII, Section 3 to be amended as follows: By deletion [ sic] the entire Section 3. In addition to the amendments submitted in connection with the standard uniform agreement, Respondent Local also submitted the following amendment to item 17 of the addendum. Contractors fabricating and/or assembling materi- als outside the jurisdiction of Sheet Metal Workers' Local Union No. 26 shall furnish to the Union and the Contractors Association certified payroll and what other proofs the Union or the Association may deem necessary to prove that the wage scale specified in Article 2, Section 2, and Article VIII, Section 1 of the Standard Form Union Agreement has been paid for such fabrication. It also being ex- pressly understood and agreed that all material, in- sofar as possible, shall be fabricated and/or assem- bled within the jurisdiction of Sheet Metal Workers' Local Union No. 26. Certification must be per- formed by a Certified Public Accountant. Certifica- tion must accompany delivery of materials. The apparent effect of the proposed amendments to the standard form agreement is to present to the Association item in article VIII, section 3, the resolution of this subsidiary question would not affect the outcome of the central issue. 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a proposition whereby article VIII, section 3 will be omitted altogether . In lieu thereof it is proposed to amend section I of the standard form agreement to require that the nine items, which could be purchased under article VIII, section 3, at specified rates, must now be fabricated in the shops of the employers . The proposed item 17 amendments undertake to describe conditions under which materials may be fabricated outside the jurisdiction of Respondent Local. Although these proposals were not expressly represented to be substitute or alternative proposals for article VlII, section 3, and item 17, it seems obvious that they had such purpose , and that their submission con- stituted an apparent effort to end the deadlock that ex- isted . The Association made no reply to such proposals, and engaged in no bargaining with regard to them . Its posi- tion was dictated by its continuing belief that the alterna- tive proposals , like the earlier ones, were also illegal. Respondents argue that these proposals cannot be con- sidered as a strike object because the strike was already under way, and because no negotiations ensued concern- ing them . Respondents urge that they appear more as a technical maneuver than as a serious contract demand to be considered as a strike object. I disagree. The strike admittedly had an object of obtaining agree- ment to article V III, section 3, and item 17. The meetings of July 13 and 14 were undertaken to resolve strike is- sues, and article VIII, section 3, and item 17 remained a major obstacle to strike settlement because of the con- tinued assertion of their illegality . The only apparent reason for Respondents to advance substitute proposals was to break a deadlock. Respondents did nothing to sig- nify this was not their aim, and I have little doubt that had the Association seen fit thereafter to indicate acceptance of either the original or the later proposals a significant strike issue would have been eliminated . The un- willingness of the Association to bargain about them does not indicate that they were not advanced as a bona fide al- ternative strike object. Accordingly, I find that the July 15 proposals to have been advanced as such alternative. The parties did not again meet for negotiation purposes until September 12, 1966, the date of a scheduled hearing on the General Counsel' s 10(1 ) petition . On this occasion the parties reached agreement and signed a full collective- bargaining agreement as well as a letter of addendum whereby article VIII , section 3, and item 17 were deleted with the understanding that such clauses would "be held in abeyance pending final determination by the National Labor Relations Board as to their legality." It was also agreed that "to the extent they may be found ... lawful," Respondent Local might reopen the agreement "for negotiations on the subject matter of such clauses." E. The Responsibility of Respondent International Respondent International contends that it participated in negotiations only in an advisory capacity , and that it should not be charged with responsibility for demanding that the alleged illegal proposals be accepted . While no doubt locals of Respondent International have a degree of autonomy when conducting their negotiations, the con- stitution of Respondent International stresses the desira- bility of uniformity in agreements . Respondent Interna- tional supplies its locals with standard forms of agree- ment. It had been the uniform practice for Respondent Local to use the standard forms supplied as the founda- tion for its collective-bargaining agreements . Undoubt- edly there were areas in which deviations from the stand- ard form were permitted , but the local officials in the instant case did not deem deviation to be permissible when it came to article VIII, section 3. At all times during the negotiations they represented the inclusion of this section to be a "must ," from which Respondent International would not permit the local to deviate. When International Representative Artman was called in to explain the mean- ing of article VIII, section 3, he took no step to disavow the involvement of Respondent International , but in ef- fect made it appear that Respondent International was making common cause with the local in the demand for its inclusion. As negotiations progressed and a strike ensued, Respondent International signified no change in this posi- tion. Artman appeared again at the poststrike settlement efforts on July 14 , and appears to have shared with Respondent Local a role in the decision to submit the amended proposals of July 15. Both Artman and counsel for Respondent International participated in the Sep- tember negotiations which resulted not only in a signed collective-bargaining agreement , but included the ad- dendum deleting article VIII, section 3, and item 17 until their legality had been determined by the Board . The rela- tionship between a local and the international as evidenced by the constitution appears to be far from a casual one. In the instant case it involved both assistance and actual participation by an International representa- tive in the negotiations . Since the alleged unlawful con- tract proposals stemmed from the Respondent Interna- tional itself, since Respondent International participated in both the negotiations and ultimate settlement, and since it at no time disavowed the continuing representa- tion of Respondent Local that Respondent International would not permit it to deviate from the standard form proposals , it is a fair inference , and I find, that at all times Respondent International made common cause with Respondent Local in pressing for the contract proposals and must share with it responsibility for the con- sequences. III. DISCUSSION OF THE ISSUES AND CONCLUSIONS Respondents ' defense to the alleged illegality of its ob- ject is that the General Counsel has not established the clauses per se to be the case presents no issue of unlawful enforcement of a lawful clause, no violation is established . To resolve the question we must first con- sider the law governing the interpretation of clauses of this nature, and then the applicability of such law to the situation which confronts us. Section 8 (e) of the Act makes it an unfair labor practice for an employer and a union to enter into an agreement "express or implied, whereby such employer ... agrees to cease ... dealing in any of the products of any other employer or to cease doing business with any other per- son ...." A literal construction of this section suggests the illegality of any agreement which results in preventing the employer from establishing a business relationship with another employer or causes him to break off a rela- tionship already established . The section , however, has not been construed to outlaw all agreements which produce such results. Contract clauses which purport to limit subcontracting to employers who are signatories to union contracts, so- called union signatory clauses, and contract clauses LOCAL UNION NO. 26, SHEET METAL WORKERS which purport to acquire for bargaining unit employees work which has been customarily and traditionally per- formed by employees of other employers, so-called unit acquisition clauses, have been held violative of the Act.4 Such clauses are viewed as not designed to protect the wages and job opportunities of the unit employees covered by the contract, but as directed at furthering general union objectives, and undertaking to regulate the labor policies of other employers. Absent a direct rela- tionship to protection of the work of unit employees such clauses are considered as having an unlawful secondary trust and to be proscribed by Section 8(b)(4) and (e). On the other hand, however, contract clauses whose basic aim is to limit subcontracting so as to preserve for unit employees work which has customarily been per- formed by them, or in some instances to recapture work regarded as fairly claimable by unit employees, so-called unit protection clauses, and contract clauses designed to limit subcontracting of unit work to employers who main- tain the same standards of employment thus minimizing the econimic incentive to subcontract, so-called union standards clauses, have been held lawful.5 The underlying rationale for the lawful character of the unit protection and union standards clauses is that a union has a primary interest in preserving unit work for unit employees or in insuring that negotiated union standards will not be un- dermined. It is reasoned that a union may further such in- terests by prohibiting all subcontracting of unit work or by discouraging subcontracting by limiting it to em- ployers whose work standards are not at a lower level. That such agreements may limit the employers with whom the primary employer may do business, or may disrupt an already established business relationship, is re- garded as an incidental effect to protection of a primary right, and deemed not unlawful despite literal language in Section 8(e) which might suggest the contrary. The very recent United States Supreme Court case National Woodwork Manufacturers Association, et al. v. N.L.R.B., 386 U.S. 612, affirms the work preservation concept as applied to Section 8(e). The contract clause prohibited purchase of items regularly fabricated by unit employees. After an extensive review of the legislative background, the Court concluded that the proscriptions of Sections 8(b)(4) and (e) were only aimed at conduct having a secondary thrust and not at primary unit preser- vation stating: The determination whether the "will not handle" sentence of Rule 17 and its enforcement violated § 8(e) and § 8(b)(4)(B) cannot be made without an inquiry into whether, under all the surrounding cir- cumstances, the Union's objective was preservation of work for Frouge's employees, or whether the agreements and boycott were tactically calculated to satisfy union objectives elsewhere. Were the latter the case, Frouge, the boycotting employer, would be a neutral bystander, and the agreement or boycott would, within the intent of Congress, become secon- 4 N L.R.B. v. Joint Council of Teamsters No. 38 (California Assn. of Employers), 338 F.2d 23 (C.A. 9); Meat and Highway Drivers, Local Union No. 710, et al. (Wilson & Co.) v. N.L.R.B., 335 F.2d 709 (C.A.D.C.); Truck Drivers Union Local No. 413 (Patton Warehouse, Inc.) v N.L.R.B., 334 F.2d 539 (C.A.D C.), Retail Clerks Union Local No. 1428 (Food Employers Council Inc.), 155 NLRB 656. Retail Clerks Intl. Assn . at al. (Nickel's Pay-less) 163 NLRB 817 5 Service and Maintenance Employees' Union, Local No. 399, AFL-CIO (Kal Efron, d/bla Superior Souvenir Book Company), 148 899 dary. There need not be an actual dispute with the boycotted employer, here the door manufacturer, for the activity to fall within this category, so long as the tactical object of the agreement and its maintenance is that employer, or benefits to other than the boycotting employees or other employees of the pri- mary employer thus making the agreement or boycott secondary in its aim . The touchstone is whether the agreement or its maintenance is ad- dressed to the labor relations of the contracting em- ployer vis-a-vis his own employees. Thus, in any given case we must carefully examine clauses attacked to ascertain if protection of unit work or union standards stands out as the central purpose, or if the clauses appear to encompass the broader objective of serving to promote the welfare of union members generally. If the clause be reasonably construed to show that it brings no benefits directly to unit employees, while at the same time it limits the employers with whom the primary employer may do business, or if it undertakes to insert an element of control over the working conditions of another employer with whom the primary employer has been or might be doing business, it will fall within the proscriptions of the statute, and action to force an em- ployer to accept it will be deemed unlawful. As we have seen the controversy centered on article VIII, section 3, with the effect of article I, section 2 not discussed at all during the course of the negotiations, and the effect of item 17 only considered in a sketchy manner. The General Counsel construes article VIII, section 3 to limit the suppliers with whom the employer-members may do business. It is asserted that this limitation stands out as an unlawful secondary object, because it is not shown to protect the unit work- or union standards. Respondents do not contest the concept, but assert that the clause may not be found unlawful since the wage rates specified in article VIII, section 3 are so generally described as to make the whole purpose inconclusive in that the General Counsel has not "shown whether any persons with whom the Reno contractors now do busi- ness, or, in the future might do business pay wage rates that are below those particularized in Article VIII, Sec- tion 3." We must first consider the significance of the language of article VIII, section 3, and the circumstances in which this record shows the issue to have arisen . While, as Respondents correctly indicate, we are not concerned with an unlawful enforcement issue , we are not called upon to construe this clause in the abstract. We may, and properly should, consider not only the language of the section itself, and whether it per se connotes an unlawful objective; but also the bargaining history, the situation into which the proposal was injected, and the likely result its acceptance would produce. If such result can reasonably be considered to encompass a proscribed ob- ject, then the conduct of Respondents in pressing for its acceptance may be found unlawful. NLRB 1033; Milk Wagon Drivers and Dairy Employees Union Local 603 (Drive-Thru Dairy Inc), 145 NLRB 445; Milk Drivers' Union, Local 753, (Pure Milk Association), 141 NLRB 1237, enfd 335 F.2d 326 (C.A 7); Ohio Valley Carpenters District Council, United Brotherhood of Car- penters and Joiners of America (Cardinal Industries, Inc.), 136 NLRB 977, Meat and Highway Drivers, Local 710 v. N.L.R.B, supra; Truck Drivers Union Local No. 413 v. N L.R.B., supra; Highway Truck Drivers and Helpers, Local 107 (S & E McCormick, Inc ), 159 NLRB 84 336-845 0 - 70 - 58 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The same parties had bargained for the working condi- tions of unit employees for some years. However, it has been found above that unit employees did not regularly abricate the nine items listed in article VIII, section 3, and that fabrication of such items was not unit work, or fairly claimable as unit work. In the 1964 contract there was no contract clause directed at imposing a limitation on the suppliers from whom the employers might purchase any one of the nine items. In practice the em- ployers had regularly purchased the items on the open market from available suppliers without regard to the wage rates such suppliers might have been paying their employees. The injection of article VIII, section 3 into the 1966 negotiations had the immediate effect of making the wage rates of such suppliers a matter of central con- cern. It is not to be assumed that Respondents proposed the clause and insisted upon its acceptance to the point of strike, without having an underlying purpose. The lan- guage of the clause itself specifically undertakes to limit the purchase of the nine items to suppliers paying specified wage rates. The specified wage rates are only generally described, but their meaning is not obscure. The employer negotiators who had been dealing with Re- spondents for many years were well aware that Respond- ent International had both building and construction locals and production locals, and that the wage rates negotiated in contracts of the production locals were less than the wage rates in contracts of the building and con- struction locals. They made the reasonable assumption that the specified rates were those found in contracts of such locals. Union Representative Donovan acknowl- edges that article VIII, section 3 in specifying production wage rates referred to those rates negotiated by produc- tion locals of Respondent International. Union Repre- sentatives Donovan and Knudson told the Association at various times that a central purpose of the section was to prevent the employers from buying at certain rates, and that deletion of the clause "would encourage non-union manufacturers to sell their materials to the installers at the expense of union members." International Representative Artman, when confronted with the charge that the effect of the clause was restrictive, specifically named two manufacturers with whom the employers had been doing business, and said that his organization didn't "deal with them." Later on when discussing the problem of dispos- ing of stock already on hand, Artman indicated that the Union would not object to the use of such supplies, but that new stock must be acquired in the manner the con- tract prescribed. Far from being inconclusive I regard the general lan- guage in the clause, when considered in conjunction with the circumstances and representations as above set forth, as strong evidence that the underlying purpose of the sec- tion was to require that the employers abandon their former practice of purchasing the nine items in the open market and to require that henceforth they must purchase such items only from employers paying the wage stan- dards that the clause specified. Without question this would limit their purchases to suppliers paying wage stan- dards of locals of Respondent International. Where theretofore they might have purchased without regard to wage rates paid by suppliers, they would be circum- scribed by acceptance of the clause and required thereafter to deal only with those suppliers paying the specified wage rates. Such a limitation speaks in terms of secondary control not primary unit protection. Thus I have already found fabrication of the nine items to be neither unit work nor fairly claimable as unit work. Article VIII, section 3 then is not aimed at unit preserva- tion. Nor can it be described as standards preservation for as shown above article VIII, section 3 permits purchase of the nine items at "production wage rates" which are lower than the contract "building and construc- tion wage rates." Thus the clause would not even offer an incentive for the employer to refrain from subcontracting or purchasing elsewhere even if the work were to be re- garded as unit or fairly claimable unit work. If its thrust serves no cognizable primary unit purpose it is only reasonable to conclude that its aim is a secondary one. In the instant case it appears designed to protect general union interests by insuring that the employer-members buy only from employers who pay union wage rates. Such an object would characterize the clause as a thinly disguised version of the so-called union signatory clauses which, as shown above, have uniformly been held unlaw- ful. Accordingly I find article VIII, section 3 to envisage no direct benefits to unit employees, but to be designed to disrupt established business relationships between em- ployer-members of the Association and their suppliers, and thus to have a secondary thrust which constitutes it unlawful within the meaning of Section 8(e) of the Act. Article II, section 2 limits subcontracting of sheet metal fabrication to fabricators paying the "prevailing wage," that is building and construction wage rates. This sounds in terms of a lawful union standards clause, and no attempt has been made to show that standing alone the clause was ever designed for a purpose other than to pro- tect regularly done unit work. The General Counsel as- serts, however, that the clause takes on an unlawful con- notation when considered in conjuction with the concur- rently proposed article VIII, section 3. As noted above article II, section 2 was part of the 1964 contract, and its application either by itself, or in conjunction with article VIII, section 3, was not discussed during the course of the 1966 negotiations. The General Counsel now argues that the nine items listed in article VIII, section 3 constitute specific excep- tions to the operative scope of article II, section 2 because the latter section permits purchase of these items from fabricators paying less than the building and con- struction wage rates which article II, section 2 demands. The General Counsel goes on to point out that the description of excepted item 6 in article VIII, section 3 refers to "fabricated pipe and fittings for residential in- stallations only." It is claimed that from this we must necessarily imply that similarly fabricated pipe for use in commercial installations is not covered by article VIII, section 3, and thus falls within the requirement in article II, section 2 that such materials be fabricated by the em- ployer or purchased from a fabricator paying building and construction wage rates. This is seen as cloaking article II, section 2 with an unlawful character, since the record establishes that the employers had always used such pipe for commercial as well as residential installations, and had theretofore never fabricated such pipe in their own shops, but had uniformly purchased it in the open market without regard to the wage rates of the suppliers. It is claimed that the result of placing commercial pipe under the umbrella of article II, section 2 renders the clause un- lawful on two counts. Construed to require fabrication of such pipe it would involve unlawful unit acquisition since the work had not regularly been done before by unit em- LOCAL UNION NO. 26, SHEET METAL WORKERS ployees. Construed to limit purchases to suppliers paying building and construction wage rates it would show no element of unit preservation because it was never unit work, and thus would disclose the secondary object of at- tempting to control work standards of another employer. I would agree that if the foregoing construction is a necessary consequence of the article II, section 2 proposal when considered in conjunction with article VIII, section 3, it too must be regarded unlawful. I question, however, if such a conclusion is the proper one to draw when we consider all the circumstances. When construing the legality of a proposal we can do no more than consider the reasonably likely consequences that flow from the language which it embodies considered in conjunction with the circumstances in which it was presented, and the situation to which it is to apply. By such a test article VIII, section 3 reasonably appeared to have an unlawful restrictive character. I reached that result, however, not by going beneath the surface to ascertain if any possible construction might result in an unlawful consequence, but only by considering and evaluating the consequences likely to flow from the proposal itself in the setting to which it was to be applied. The General Counsel's analysis of article II, section 2 and its relationship to article VIII, section 3 is ingenious, and presents the possibility of an unlawful application, but I do not regard it as expressing what would almost certainly follow its acceptance. Article II, section 2 in no material aspect departs from a similar provision in the 1964 contract. It is significant that in the 1966 negotia- tions it was not represented or even claimed to be tied directly to article VIII, section 3 in any particular. Thus the commercial use argument , noted above, appears to come into the picture more as an afterthought, than as a real element of contention among the negotiating parties. Without more I am unwilling to find that over and above what I regard to be the unlawful thrust of article VIII, section 3, Respondents also had the devious aim of taint- ing the theretofore lawful.article II, section 2 merely by pressing for adoption of article VIII, section 3. If such be the real object it is not self evident and illegality of aim should not be presumed in advance.6 Thus I regard the issue as one which more properly awaits enforcement at- tempts, if any, and the unlawful connotation of article II, section 2 as not sufficiently shown in the circumstances here presented. Accordingly I find that in this record it has not been established by a preponderance of the evidence that article II, section 2 of the 1966 proposals is unlawful within the meaning of Section 8(e) of the Act.7 Inclusion of item 17 is an admitted strike object. As noted above the Association viewed this clause as provid- 6 In Highway Truck Drivers and Helpers, Local 107 (S & E McCor- mick, Inc.), 159 NLRB 84, the Board in referring to the lawful character of a so-called union standards clause , noted that in the absence of any indi- cation to the contrary it would assume such a clause to be limited to con- tracting out of work which otherwise would be performed by unit em- ployees. It commented on this in In. 30 as follows: In this connection we note as did. the court , that article 33(a) is in- cluded in an article of the contract entitled "Subcontracting" and that it is expressly qualified by the subcontracting provision in article 33(b) which immediately follows and is described as a "modification" of article 33(c). In these circumstances, we do not deem it appropriate for us to indulge in a presumption of illegality . As the Supreme Court stated in N.L.R B. v. News Syndicate Company, Inc., 365 U.S. 695, " as we said in Teamsters Local 357 v. Labor Board, decided this day . . we will not assume that unions and employers will violate a federal law ... against a clear command of this Act of Congress. As 901 ing a means of implementation or policing of the purchas- ing limitations set forth in article VIII, section 3. Thus the employers regarded item 17 as requiring that they furnish the employers with certain enumerated proofs as to the wage standards of the suppliers from whom they had purchased any of the nine items listed in article VIII, section 3. This they considered not only burdensome in the extreme, but they believed to be unlawful since it had the effect of implementing a clause which was unlawful. I would not dispute the proposition that any clause which augments or implements another clause which violates Section 8(e) will be pro tanto violative of Section 8(e) it- self. Drivers, Salesmen, Warehousemen, Milk Proces- sors, Cannery, Dairy Employees and Helpers Local Union No. 695, et al. (John B. Threlfall d/b/a Threlfall Construction Company), 152 NLRB 577, enfd. 361 F.2d 547 (C.A.D.C.). I have serious doubt, however, that the General Coun- sel has established that the language of item 17 itself, con- sidered in conjunction with the manner in which it was presented and discussed during the course of the negotia- tions, sufficiently establishes that it was designed as the policing arm of article VIII, section 3. The Association may have viewed it as such, as it now states, but it is noteworthy that during the negotiations discussion con- cerning item 17, as reported in this record, was less than definitive. It is not claimed that any union representative at any time expressly represented that an object of item 17 was to provide a check on purchase of items listed in article VIII, section 3. The language of the clause itself, while not without its ambiguities, does not compel such a conclusion. I find it highly significant that while item 17 makes express reference to article II, section 2, it makes no reference whatsoever to article VIII, section 3. The General Counsel argues that unexplained ambiguities ap- pearing in item 17 lead to the conclusion that it is designed to encompass and police article VIII, section 3. I regard this as a strained interpretation reaching a result which I do not believe to be warranted without additional evidence. I find it more reasonable to conclude that item 17 was designed as a method of policing the lawful sub- contracting limitation found in article II, section 2. This conclusion is buttressed by the use of the term "having materials fabricated or assembled." This more readily suggests the subcontracting of a custom job than the purchase of manufactured items. Also the proofs de- manded are in the form of certified payrolls. This would appear as a more reasonable requirement when applied to the subcontracting of a small fabrication job, than as a needed element to police volume purchases from mass production suppliers. If the purpose of item 17 is merely stated by the Court of Appeals 'In the absence of provisions calling explicitly for illegal conduct, the contract cannot be held illegal because it failed affirmatively to disclaim all illegal objectives."' (365 U S. 695, 699-700.) [ Emphasis supplied. j 7 Respondent urges that I should dismiss the allegations regarding arti- cle II, section 2 because the inclusion of such article could not have been a strike object inasmuch as the clause had been accepted by the Associa- tion during the course of the negotiations and was not one of the subject matters of dispute. Since *1 have found the proposal not to be unlawful within the meamng of Section 8(e) there is no need to resolve this issue. It is my view, however, that, if I were to find article II, section 2 when con- sidered in conjunction with article III, section 3 to be unlawful within the meamng of Section 8(e), I would not be precluded from finding it so ent- wined with an unlawful strike object clause that the two could be viewed as inseparable regardless of the apparent acquiescence of the Association in the inclusion of article II, section 2 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to police or implement the lawful union standards provi- sions of article II, section 2, it too is lawful . Its possible burdensome character is a collective -bargaining issue, and not one to be decided in this proceeding . An attempt to apply the section to the purchase of items listed in arti- cle VIII , section 3, no doubt would be unlawful, but at this point this appears as an enforcement question, and not as an issue to be decided here .8 For reasons set forth above, I am of the opinion, and find , that the record does not sufficiently establish that item 17 is designed to police article VIII, section 3, and accordingly I do not find it to be unlawful within the meaning of Section 8(e) of the Act. Nor do I find , as the General Counsel urges , the provi- sions in item 17 stating that it is "expressly understood and agreed that all material insofar as possible, shall be fabricated and/or assembled within the jurisdiction of Sheet Metal Workers' Local Union No. 26" must be con- strued as requiring that absent impossibility an employer can subcontract only to fabricators who are themselves parties to collective-bargaining contracts with Respond- ent Local . Having found item 17 designed to implement article II, section 2 it must be construed in conjunction with it. I have found article II , section 2 to be lawful because it embodies no more than a lawful union stan- dards clause limited to protection of unit work. Union standards clauses are deemed lawful because aimed at the preservation of unit work by removing the incentive of Respondents to subcontract such work to other em- ployees. It would be equally lawful , and for a similar reason, for a union to prohibit the subcontracting of unit work altogether . I view the language in item 17 that "all material insofar as possible shall be fabricated and or as- sembled within the jurisdiction of Sheet Metal Workers' Local Union No. 26 " as no more than an expression that the employer will insofar as possible not subcontract unit work . An unlawful connotation is not to be presumed.9 I have heretofore found the amended proposals of July 15, 1966, to have been alternative strike objects . The un- lawful character of article I, section 1 , as so amended, is too clear to merit further discussion . By the amendments Respondents take the nine items previously listed in arti- cle VIII , section 3 and transpose them to article I , section 1 in a manner which would require a total ban on any sub- contract for the fabrication of such items . Such ban is un- lawful for , as found above , the production of these items was neither unit work nor fairly claimable unit work, and thus the clause could not be directed at unit protection, but must be aimed at unit acquisition. As we have seen unit acquisition clauses are considered to be secondary in nature and violative of Section 8(e) of the Act. District No. 9, International Association of Machinists, AFL-CIO (Greater St . Louis Automotive Trimmers & Upholsters Assn .) v. N.L.R.B., 315 F . 2d 33 (C.A.D.C.); Retail Clerks Union , Local 770 (Frito Company), 138 NLRB 244. The amendment to item 17 does not appear to have changed its previous character , accordingly I would regard it as governed by my findings above. Upon the basis of the foregoing I find, in summary, the following: (1) Article VIII , section 3 and the alternative contract proposal submitted on July 15 , 1967 , are each reasonably construed as stating an unlawful purpose within the meaning of Section 8(e) of the Act; (2) Respondents, acting in concert, brought about, or continued, a strike of employees of employer-members of the Association with an object of obtaining inclusion in a contract of article VIII, section 3 or the alternative July 15 proposal thereby violating Section 8(b)(4)(i) and (ii)(A) of the Act; (3) Respondents , by in effect conditioning the execu- tion of a collective-bargaining agreement with the As- sociation upon the inclusion of article VIII, section 3 or the alternative proposal of July 15, engaged in conduct violative of Section 8(b)(3) of the Act; (4) It has not been established that article II, section 2 standing alone or considered in conjunction with article VIII, section 3 is to be reasonably construed as stating a purpose violative of Section 8(e); and (5) It has not been established that item 17 was designed to implement or police article VIII , section 3, and thus item 17 is not construed as having a purpose violative of Section 8(e) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in sections II and III, above , occurring in connection with the em- ployer-members' operations described in section I, above, have a close, intimate, and substantial relationship to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in certain un- fair labor practices as set forth above , I shall recommend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of tha Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondents, and each of them, are labor organiza- tions within the meaning of Section 2(5) of the Act. 2. Reno Employers Council and its employer-mem- bers , and each of them , are employers within the meaning of Section 2(6) and (7) of the Act. 3. By engaging in a strike with an object of forcing or requiring the Association, acting on behalf of its employer-members, to enter into an agreement containing a clause prohibited by Section 8(e) of the Act, Respond- ents have engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(A) of the Act. 4. By conditioning the signing of a collective-bargain- ing agreement upon acceptance by the Association of terms and conditions prohibited by Section 8(e) of the Act, Respondents have engaged in unfair labor practices within the meaning of Section 8(b)(3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 8 See fn. 6, above. See fn. 6, above LOCAL UNION NO. 26, SHEET METAL WORKERS 6. By engaging in a strike with an object of forcing or requiring the Association to enter into an agreement con- taining the provisions described in article II, section 2, and item 17 , under the circumstances described above, Respondents have not engaged in conduct violative of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this proceed- ing, I recommend that Respondents , Local Union No. 26 of Sheet Metal Workers' International Association, AFL-CIO, and Sheet Metal Workers' International As- sociation, AFL-CIO, their officers , agents, and represen- tatives shall: 1. Cease and desist from: (a) Inducing or encouraging any individual employed by any employer-member of the Association to engage in a strike or refusal in the course of his employment to use, manufacture , process, transport , or otherwise handle or work on any goods , articles, materials , or commodities, or to perform any services , or threatening , coercing, or restraining employer-members of the Association by picketing , or threatening to cause a work stoppage, or causing a work stoppage , or otherwise , where in either case an object thereof is to force or,require the Associa- tion, acting for its employer-members, to enter into any contract or agreement , expressed or implied , prohibited by Section 8(e) of the Act. (b) Refusing to bargain by conditioning execution of a collective-bargaining agreement with the Association upon acceptance by the Association of terms and condi- tions which are unlawful. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Notify the Association that they will not insist upon the inclusion of article VIII, section 3 or the alter- native July 15, 1966, proposal or any clause of a similar or like nature in any collective-bargaining agreement. (b) Post at Respondent Local's business offices, meet- ing halls, and all places where notices to members are customarily posted , copies of the attached notice marked "Appendix ." 10 Copies of said notice, to be furnished by the Regional Director for Region 20, after being duly signed by Respondents ' authorized representatives, shall be posted by Respondent Local 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 by Respondents to insure that said notices are not altered , defaced, or covered by any other material. (c) Sign and mail sufficient copies of said notice to the aforesaid Regional Director for forwarding to the As- sociation and its employer -members for information, and, if they are willing, for posting by them in all locations where notices to employees are customarily posted. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the receipt of this Decision what steps have been taken to comply herewith.I I 10 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the 903 Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." ii In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondents have taken to comply therewith." APPENDIX NOTICE TO ALL MEMBERS OF LOCAL UNION NO. 26, SHEET METAL WORKERS' INTERNATIONAL ASSOCIA- TION, AFL-CIO Pursuant to the Recommended Order of a Trial Ex- aminer 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 induce or encourage employees of the employer-members of Reno Sheet Metal Con- tractors by striking or other conduct, to refuse to per- form services in the course of their employment, or threaten or coerce employer-members by striking, picketing, or other conduct, where an object thereof is to force or require Reno Sheet Metal Contractors to enter into an Agreement which is prohibited by Section 8(e) of the Act, as amended. WE WILL NOT refuse to bargain collectively with Reno Sheet Metal Contractors, acting on behalf of its employer-members, by insisting as a precondition to executing any contract with the Reno Sheet Metal Contractors that it accept an unlawful provision in such contract. LOCAL UNION NO. 26, OF SHEET METAL WORKERS' INTERNATIONAL ASSOCIA- TION, AFL-CIO (Labor Organization) Dated By (Representative) (Title) SHEET METAL WORKERS' INTERNATIONAL ASSOCIA- TION , AFL-CIO (Labor Organization) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-03 3 5.