Local Union No. 28, Sheet Metal Workers

National Labor Relations Board - Board Decisions

Jan 14, 1966

156 N.L.R.B. 804 (N.L.R.B. 1966)

804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of America, Glaziers Local Union No. 751, AFL-CIO, are entitled to
-perform the following work :
The work of installing the automatic equipment for opening and
closing glass doors at the Presbyterian-University Hospital construc-
tion site at Pittsburgh, Pennsylvania.
2. International Brotherhood of Electrical Workers, Local 5, AFL-
CIO, is not entitled by means proscribed by Section 8(b) (4) (D) of
the Act to force or require Pittsburgh Plate Glass Company to assign
the above-described work to electricians who are currently represented
by International Brotherhood of Electrical Workers, Local 5,
AFL-CIO.
3. Within 10 days from the date of this Decision, International
Brotherhood of Electrical Workers, Local 5, AFL-CIO, shall notify
-the Regional Director for Region 6, in writing, whether or not it will
-refrain from forcing or requiring Pittsburgh Plate Glass Company to
assign the work in dispute to its members, rather than to employees of
Pittsburgh Plate Glass Company represented by Brotherhood of
Painters, Decorators and Paperhangers of America, Glaziers Local
-Union No. 751, AFL-CIO.
Local Union No. 28, Sheet Metal Workers ' International Associa-
tion, AFL-CIO, and Mell Farrell , Its President and Johnson
Service Company
Local Union No. 28, Sheet Metal Workers' International Asso-
ciation , AFL-CIO, and Mel! Farrell , Its President ; Mechanical
Contractors ' Association of New York, Inc.; Sheet Metal Con-
tractors Association of New York, Inc. and Johnson Service
Company and Kerby Saunders , Inc.; George A. Fuller Com-
pany; National Sheet Metal Works, Inc., Parties in Interest.
Cases Nos. 2-CC-961 and 2-CE-29. January 14, 1966
DECISION AND ORDER
On October 13, 1965 , Trial Examiner Samuel M. Singer issued his
Decision in the above-entitled proceeding , finding that the Respond-
ents 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 Exam-
iner's Decision . Thereafter , Respondent Local Union No. 28, Sheet
Metal Workers' International Association , AFL-CIO, hereafter
referred to as the Union, and Mell Farrel , its president , filed excep-
156 NLRB No. 79.
LOCAL UNION NO. 28, SHEET METAL WORKERS 805
tions to the Trial Examiner's Decision and a supporting brief; the
General Counsel filed exceptions to the Trial Examiner's Decision ;
and the Charging Party filed a brief in opposition to the exceptions
of the Union and Mell Farrell, its president.
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 these cases to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
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 entire
record in these cases, including the Trial Examiner's Decision,' the
exceptions , and briefs , and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein with respect to Respondent Local Union No. 28, Sheet Metal
Workers' International Association, AFL-CIO, and Mell Farrell, its
president, and orders that Respondent, Local Union No. 28, Sheet
Metal Workers' International Association, AFL-CIO, its officers,
agents, and representatives, and Mell Farrell,. its president; and
Respondents, Mechanical Contractors' Association of New York, Inc.
and Sheet Metal Contractors Association of New York, Inc., their
respective members, officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recommended Order, as
so modified :
1. Add the following paragraph as paragraph A, 1, (d) to the Trial
Examiner's Recommended Order :
"(d) Threatening, coercing, or restraining Kerby Saunders, Inc.,
George A. Fuller Company, National Sheet Metal Works, Inc., or any
other person engaged in commerce or in an industry affecting com-
merce, where an object thereof is to force or require Kerby Saunders,
Inc., or any other employer-member of any of the Associations named
in (a) above, or any other employer, to abide by, reaffirm, or enter into
Addendum B of the collective-bargaining agreement, or any other
contract or agreement prohibited by Section 8 (e) of the Act."
1 We hereby correct the finding in the second paragraph from the end of section III, C,
of the Trial Examiner's Decision that National ' s job foreman , Biancardi, took the matter
of the January 26 refusal of delivery of dampers up with Kerby's project manager, Duffy.
The recoil shows it was Johnson ' s construction manager , Perrone, who spoke to Duffy.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Add the following as the last-indented paragraph of Appendix
A attached to the Trial Examiner's Decision :
WE WILL NOT threaten, coerce, or restrain any of the above-
named companies , or any other person engaged in commerce or
in an industry affecting commerce, where an object thereof is to,
force or require DERBY SAUNDERS, INC., or any other employer-
member of any. of the Associations named above, or any other
employer, to abide by, reaffirm, or enter into Addendum B of the
collective-bargaining agreement, or any other contract or agree-
ment prohibited by Section 8 (e) of the Act.
3. Add the following to Appendix A attached to the Trial Exam-
iner's Decision, on the line denoting the Labor Organization : "Local
Union No. 28, Sheet Metal Workers' International Association,
AFL-CIO."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed March 1 and April 13, 1965, by Johnson Service Company,
General Counsel of the National Labor Relations Board , by the Regional Director
for Region 2, issued a consolidated complaint on May 7, 1965, alleging that Respond-
ent Local Union No. 28 and its president , Mell Farrell, and the employer associations
violated Section 8(e) of the National Labor Relations Act, as amended , by reaffirm-
ing and entering into a hot cargo agreement proscribed by that section . The com-
plaint further alleged that the Union and Farrell engaged in secondary boycott
activities prohibited by Section 8(b)(4)(ii )(A) and (B) of the Act. In their
answers, Respondents denied commission of the unfair labor practices.
Pursuant to notice , a hearing was held before Trial Examiner Samuel M. Singer in
New York, New York, on June 28 and 29, 1965. The parties were represented by
counsel and were afforded full opportunity to be heard and to introduce relevant
evidence . Briefs were subsequently received from General Counsel , Charging Party,
and Respondent Union and Farrell .1
Upon the entire record ,2 the briefs , and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYERS
Johnson Service Company, herein called Johnson , is a Wisconsin corporation, with
its principal office and place of business in Milwaukee , Wisconsin, and with other
places of business in other States , including New York. It is engaged in the manu-
facture, sale , and installation of air-flow and temperature -control products , including
the manufacture at its Milwaukee plant of certain dampers involved in this proceed-
ing. Johnson annually receives at its Milwaukee plant materials and supplies valued
in excess of $50,000 from points outside Wisconsin , it annually ships products valued
in excess of $50 ,000 from its Milwaukee plant to points outside Wisconsin.
George A. Fuller Company, herein called Fuller , a New Jersey corporation, with
its principal office and place of business in New York City and other places of busi-
ness in other States, is engaged in the general construction business . It annually
receives at its places of business in New York, construction materials and supplies
valued in excess of $50,000 from points outside the State of New York; it annually
performs construction services valued in excess of $50 ,000 for enterprises located
outside the State of New York.
'Although Respondent Associations did not file briefs, they stated their positions at
the hearing.
2 As corrected by my order dated August 25, 1965.
LOCAL UNION NO. 28, SHEET METAL WORKERS 807
Kerby Saunders , Inc., herein called Kerby , a New York corporation , with its
principal office and place of business in New York City and places of business in
other States , performs building construction services in connection with heating,
ventilating , and air-conditioning installation , and related services . It annually
receives supplies and materials valued in excess of $50,000 from outside the State
of New York , and it annually provides construction services valued in excess of
$50,000 for enterprises located outside the State of New York.
National Sheet Metal Works, Inc., herein called National, is a New York corpora-
tion with its principal office and place of business in Brooklyn , New York, and other
places of business at construction sites in New York State , where it provides and
performs services in connection with sheet metal installation and related services.
It annually receives materials and supplies valued in excess of $50,000 from points
outside the State of New York; and it annually provides construction services valued
in excess of $50,000 for enterprises in interstate commerce , located in New York
State.
Mechanical Contractors ' Association of New York, Inc., herein called Mechanical
Association , and Sheet Metal Contractors Association of New York , Inc, herein
called Sheet Metal Association , are New York membership corporations , composed
of employers engaged in providing and performing building construction services in
and around the New York City area . Mechanical Association members install heat-
ing, ventilating , air-conditioning , and like equipment ; and Sheet Metal Association
members install sheet metal and related items. Each association bargains collectively
with labor organizations and executes bargaining agreements on behalf of its employer
members. Members of each association receive at their respective places of business
(including jobsites ) goods and materials valued at more than $50,000 annually from
point outside the State of New York.
Upon these uncontroverted facts , I find, as Respondents admit, that Johnson, Fuller,
Kerby, National , and the two Associations at all material times have been and are
persons and employers engaged in commerce or industries affecting commerce within
the meaning of the Act , and that it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 28, Sheet Metal Workers' International Association , AFL-CIO,
herein called Local 28 or the Union , is a labor organization within the meaning of
the Act Mell Farrell is its president and agent.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the issues
The dispute giving rise to this proceeding concerns an attempted installation of
Johnson ( Milwaukee) manufactured air-control dampers at a New York City con-
struction project. The subcontractor ordering the dampers is a member of one of
Respondent associations and, as such , bound by an agreement between his associa-
tion and the Union not to use certain fabricated items on New York City jobs, unless
manufactured by a contractor with whom Local 28 has a signed agreement. After
the Union threatened to pull its members off the job if the Johnson dampers were
installed, the subcontractors substituted dampers made by Local 28 members.
In essence , General Counsel contends that the agreement between Local 28 and
the association is a hot cargo agreement illegal under Section 8 (e) of the Act; and
that the Union 's conduct in preventing installation of the Johnson dampers was
secondary action violative of Section 8(b) (4) (ii) (A) and (B). Respondents'
basic position is that the agreement governing the use of fabricated items is a lawful
work -preservation clause, outside the scope of Section 8(e). Denying that it violated
Section 8 ( b)(4)(ii )(A) and ( B), the Union contends that it only employed reason-
able economic action to implement a lawful agreement . It also contends that, in
any event , the dispute was submitted to a joint adjustment board whose resolution
of the dispute , in the Union's favor , should be given effect herein.
The findings set forth below are based largely on undisputed evidence.3
8 The record In part consists of stipulations of fact entered into at the hearing Por-
tions of the transcript of testimony in a Section 10(1) injunction proceeding ( McLeod v
Local Union No 28 et at ., 65 Civ 1425 , S D N Y .) also were incorporated by stipulation
On June 16 , 1965 , the district court enjoined the conduct here charged as illegal , pending
final disposition of the matter by the Board The court ' s findings and conclusions are
not binding In this proceeding . See W W Wallwork Fargo , Inc, 123 NL11B 91, 113,
footnote 33.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The alleged hot cargo agreement (Addendum B) and its
applicability to the Alexander construction job
As already noted, the employer members of the two associations are engaged in
fabricating and installing sheet metal products. Their journeymen and apprentice
sheet metal workeis are represented by Local 28, whose territorial jurisdiction encom-
passes the New York City area. "Addendum B" in the current collective agreement
between the Union and associations contains the following provision: 4 "Fabricated
items to be manufactured by a Contractor having a signed Agreement with Local
No. 28 " Among the enumerated fabricated items falling within the scope of this
clause are: "All types of dampers except patented pressure reducing devices...."
During the period here involved (including 1964), Fuller, as general contractor,
was engaged in the construction of a new building at 59th Street and Lexington
Avenue, New York City, for Alexander's Department Store. In July 1964, Fuller
subcontracted the heating, ventilating, and air-conditioning work to Kerby. Kerby,
in turn, engaged Johnson to furnish the complete system of temperature control,
including the dampers for the air-conditioning unit. However, Kerby subcontracted
the installation of the dampers, as well as other sheet metal installations, to National
Kerby and National are members of Mechanical and Sheet Metal Association, respec-
tively, and, as such, are bound by the collective agreement between the Union and
the associations. Fuller and Johnson are not members of either association and have
no contractual relations with the Union.
John Scanlon, vice president of Kerby, credibly testified that in response to Fuller's
request to reduce construction costs, Kerby approached Johnson, among others, to
furnish less expensive materials. Johnson offered to substitute its new D-1300
damper for the larger damper called for in the original contract between Fuller and
Kerby. Use of the Johnson damper would have reduced the cost of sheet metal
(including duct) work, as well as of the dampers. Upon approval of the substitution
by Fuller and the consulting engineer, Kerby agreed to use this new damper. The
D-1300 dampers were scheduled for installation in December 1964.
Johnson manufactures its dampers and other products in Milwaukee. Its employ-
ees are represented by Local 24, a sister local of Local 28 (both locals are affiliated
with the same International) Scanlon credibly testified that when Kerby agreed
to use the D-1300 dampers, Kerby was unaware that they were made in Milwaukee.
As fabrication subcontractor on New York City jobs at that time (and since incor-
poration of Addendum B into the 1960 collective agreement between Local 28 and
the Association, supra, footnote 4), Johnson normally used dampers made locally by
companies employing Local 28 members.5
C. The pressures exerted by Local 28 in enforcing Addendum B
On Friday, December 4, 1964,6 Union President Farrell and another Union repre-
sentative (Weigel) visited the Alexander jobsite. Farrell informed Fuller's con-
struction superintendent, McCarthy, that he had been unable to determine "who was
manufacturing" the dampers for Kerby and unless he obtained that information
within the next few days, "he might have to pull the men off the job." McCarthy
immediately called his office and Kerby "to get this straightened out because [he]
didn't want any stoppage of work on the job." On the same day, Kerby's project
manager, Duffy, reported (by telephone and letter) to Johnson in Milwaukee Far-
rell's visit at the jobsite. Duffy told Johnson that it must "straighten out this matter
with the sheet metal workers in order not to delay the job." Duffy arranged a,
meeting between Farrell and all interested employers for Monday, December 7,
at the jobsite.
• This collective agreement , originally executed in August 1960 and amended on July 1,
1963, expires on June 30, 1966.
5 The record shows , and I find, that Johnson had used its own Milwaukee - made dampers-
in about 90 percent of its New York City jobs before execution of Addendum B in
August 1960. In April 1961, Johnson vigorously protested to the Associations and to
the Union that the addendum "would impede the full flow " of its dampers from Mil-
waukee to New York City. Rejecting the advice of its attorney to file unfair labor
practice charges in 1961, Johnson "for the time being" agreed to go along with exclusion
of its dampers from the New York City area, in the hope that the matter would be
rectified by the associations and the Union in their contract renewal negotiations in 1963
However, Addendum B was continued without change in 1963
'Unless otherwise indicated , all date references are to 1964.
LOCAL UNION NO. 28, SHEET METAL WORKERS 809
The December 7 meeting was attended by Union representatives Farrell and
Weigel, and by representatives of Johnson, Kerby, National, and Fuller. Caffrey,
one of Johnson's men, showed Farrell a sample of the D-1300 damper to be used
on the Alexander job,7 and explained "why we felt it was a special device and best
suited" for the job. Caffrey assured him that Johnson would also use other dampers,
manufactured to Johnson's specifications by a New York fabricator, Buenstod
Stacey 8 Farrell stated that the D-1300 damper "was just another damper and could
be made by men in Local 28 or anybody else... " According to the uncontradicted,
credible testimony of Wheeler, another Johnson representative, Farrell also said that-
"if the dampers were not going to be made by Local 28, all of them, that he was
going to take the men off the job the next day." 9
It was stipulated at the hearing that Johnson sent a shipment of D-1300 dampers
from its Milwaukee plant to the jobsite where, on or about December 17, the ship-
ment was refused.
The dispute concerning the dampers was referred to the joint adjustment board,
under article 9 of the collective agreement, and was discussed at a meeting on
December 3, 1964, by representatives of Local 28 and the associations.10 As a result
of agreement reached at this meeting, the Mechanical Association, by letter dated
December 28, notified all members that violations of Addendum B were "presently a
matter of concern," requested the members to review the addendum, and reminded
them that "compliance with this Agreement is a requirement." Enclosed in the
letter was a circular previously distributed to the membership, setting forth the
pertinent provisions of the addendum and demanding "strict compliance" with its
provisions. The matter of compliance with the addendum was again discussed at a
meeting of the joint adjustment board on January 5, 1965, where it was noted that
the Mechanical Association had "agreed to advise members to conform with the
contract."
Kerby informed Johnson of the referral of the dispute concerning its dampers to
the joint adjustment board and of that board's action in urging association members
to comply with Addendum B. Representatives of Fuller, as well as of Kerby,
"repeatedly" called Johnson to impress upon it "the urgency" of resolving the matter
in order to avoid disruption of construction Finally, on January 20, 1965, Johnson's
officials, Wheeler and Caffrey, again met with Farrell and other Union officials to'
discuss the matter. Farrell insisted that "he was not going to accept any fabricated
items not made by Local 28, and he would not make an exception in the case of
the D-1300." He pointed out that there had been "some unemployment in New
York City"; that he was "worried" about loss of more jobs; and that "he didn't
want his terms of employment that he enjoyed under the contract [with employers)
undermined or deteriorated."
On January 26, 1965, Johnson again attempted to deliver three crates of its D-1300
dampers to the jobsite. Biancardi, National's job foreman and jobsite representative,
refused delivery, indicating that "they could not be accepted because they were not
made in New York City." Biancardi then took up the matter with Duffy, Kerby's
project manager. Duffy told him that National, as Kerby's subcontractor, handled
this equipment and, hence, "he was not able to do anything about it " 11
As a result of rejection of the D-1300 dampers, Johnson, with approval of Fuller
and Kerby, substituted dampers of a different design manufactured in New York City
by Buenstod-Stacey, a member of the Mechanical Association having contractual
relations with Local 28.
° None of the dampers had yet been shipped to the jobsite.
8 Johnson had used Buenstod Stacey dampers on other New York City jobs since 1961,
including a job for May's Department Store in 1964. Buenstod Stacey, a Mechanical As-
sociation member, employs Local 28 members.
8 Although present at the hearing, Farrell was not called to testify
10 Under article 9, disputes under the contract are submitted to a joint adjustment
board composed of an equal number of representatives of the local and the associations,
with the local having one vote and the two associations together also one vote . In case
of the Board 's inability to resolve the dispute , it is submitted to the impartial chairman
for the industry , whose decision is final and binding
n Biancardi , an admitted supervisor of National , is also a member of Local 28. He
testified that he refused Johnson's January shipment after contacting the Union's office
and learning that there had been no "change" in "policy " regarding shipments of damp-
ers from outside New York City. He also testified that in discussing his earlier refusal
to accept Johnson's dampers in December with his superior at National , shortly after
rejecting that shipment , his superior told him, "Don't accept them , being as they are not
being made by our shops in the city."
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings
A. The alleged hot cargo agreement, in violation of Section 8(e) of the Act
1. As the Union points out in its brief (p. 12), the bargaining unit established by
the collective agreement encompasses the sheet metal employees of members of the
two associations, in the New York City area, the territorial jurisdiction of the Union.
Contrary to its contention, however, Addendum B (the fabrication clause) does not
prohibit subcontracting to fabricators outside of the associationwide bargaining unit.
The addendum limits only the persons to whom the fabricating work may be sub-
contracted. It requires enumerated fabricated items "to be manufactured by a Con-
tractor having a signed agreement with Local Union No. 28," thus barring subcon-
tracts to unorganized contractors and to contractors organized by unions other than
Local 28. On the other hand, it permits subcontracting with contractors having
contractual relations with Local 28, even though such contractors are not members
of the associations and, therefore , are not within the contractual unit.12
It is clear, and I find, that General Counsel made out a prima facie showing that
Addendum B is a traditional hot cargo agreement , banned by Section 8(e) of the
Act, by which an employer agrees not to deal, handle, or work on goods disapproved
by the union See Local 1976, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, et al. (Fuller Paint & Glass Co.) v. N L.R B., 357 U.S. 93;
N.L.R.B. V. International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local 294 (Island Dock Lumber, Inc.), 342 F. 2d 18, 21
(C.A. 2); Bakery Wagon Drivers and Salesmen , Local Union No. 484 ( Continental
Baking Co. and Sunrise Transportation) v. N.L.R.B., 321 F. 2d 353, 358 (C.A.D.C.).13
The Board and the courts have consistently drawn a distinction between subcontract-
ing provisions restricting employers from doing business with other employers because
of the latter 's nonunion status and subcontracting provisions designed to preserve the
job and job rights of employees in the bargaining unit.14 In Orange Belt District
Council of Painters No 48, AFL-CIO, et al. (Calhoun Drywall Co.) v. N.L.R.B.,
12 Even if the Union established ( which it did not) that non - association members
routinely adopted the association ' s contracts with Local 28, this factor alone would not
qualify such members for inclusion within the associationwide unit . See Block Cut Man-
ufacturers, Inc., 111 NLRB 265, 267 S. on C. Molanelli, Santoni & Freytes, d/b/a Panaderaa
La Reguladora , et al , 118 NLRB 1010, 1014.
is Section 8(e) provides:
It shall be an unfair labor practice for any labor organization and any employer
to enter into any contract or agreement , express or implied , whereby such employer
ceases or refrains or agrees to cease or refrain from handling , using, selling , trans-
porting or otherwise dealing in any of the products of any other employer, or to
cease doing business with any other person, and any contract or agreement entered
into heretofore or hereafter containing such an agreement shall be to such extent
unenforceable and void: Provided , That nothing in this subsection ( e) shall apply
to an agreement between a labor organization and an employer in the construction
industry relating to the contracting or subcontracting of work to be done at the site
of the construction , alteration , painting , or repair of a building , structure , or other
work . . .
There is no claim here that the construction -industry proviso immunized Respondent's
conduct. "Since the proviso is limited to `work done at the site of the construction',
it does not sanction a boycott against suppliers who do not work on the job site " N L R B.
v. International Brotherhood of Teamsters , etc., Local 294, 342 F 2d 18, 21 ( CA 2). See
also Ohio Valley Carpenters District Council , United Brotherhood of Carpenters and Join-
ers of America, AFL-CIO, et al. (Cardinal Industries, Inc.), 136 NLRB 977, 988. The
disputed product ( D-1300 dampers ) was manufactured by Johnson employees In Mil-
waukee and shipped by It 'to the Alexander construction job project in New York City.
14 See, e g , Ohio Valley Carpenters District Council , etc., supra, 985-986 ; Bakery
Wagon Drivers, etc., supra, 357-358 ; District No. 9, International Association of Ma-
chinists, AFL-CIO (Greater St. Louis Automotive Trimmers), 134 NLRB 1354, 1358,
enfd 315 F. 2d 33 (C.A D C.) , N L R B. v. Joint Council of Teamsters No 78, et al.
(California Assn. of Employers), 338 F 2d 23, 28, 31 (C A 9) , Teamsters, Chauffeurs,
Warehousemen & Helpers, Local Union No 631 , Teamsters ( Reynolds Electrical and
Engineering Co , Inc.), 154 NLRB 67
LOCAL UNION NO. 28, SHEET METAL WORKERS 811
328 F. 2d 534, 538, the Court of Appeals for the District of Columbia articulated
the test as follows.
The test as to the "primary " nature of a subcontractor clause in an agreement
with a general contractor has been phrased by scholars as whether it "will
directly benefit employees covered thereby," and "seeks to protect the wages
and job opportunities of the employees covered by the contract." We have
phrased the test as whether the clauses are "germane to the economic integrity
of the principal work unit," and seek "to protect and preserve the work and
standards [the union ] has bargained for," or instead "extend beyond the [con-
tracting] employer and are aimed really at the union's difference with another
employer." ( Footnotes omitted.)
A clause completely prohibiting subcontracting during the term of a contract is
ordinarily regarded as lawful and primary, since it is presumably designed to protect
and preserve the work of the unit employees , even though an incidental effect of the
clause may be to limit the employer 's freedom to do business with other employers.
Bakery Wagon Drivers, etc., supra , 357. On the other hand , a clause permitting
subcontracting only with employers under contract with the union is presumed to be
unlawful and secondary , even though an incidental effect of the provision may be to
benefit the unit employees . 15 The fact that such agreement is designed to improve
the economic lot of the union's members generally, as distinct from that of the
employees in the particular unit, is not determinative Cf. N.L R B. v United Asso-
ciation of Journeymen and Apprentices of the Plumbing and Pipe fitting Industry of
the United States and Canada, AFL-CIO, Local No 12 (Phoenix Urban Corp.),
320 F. 2d 250 , 254 (C.A 1). The ultimate purpose of almost all secondary boycotts
is promotion of improved working conditions . The Act draws no distinction between
"good secondary boycotts and bad secondary boycotts." 93 Cong. Rec. 4198 (2
Leg. Hist. 1106 (1947) ). The question in each case is whether the means chosen
to attain the union 's objectives contemplate a "boycott [of] another employer for
reasons not strictly germane to the economic integrity of the principal work unit."
District 9, 1 A.M., supra, 36. Accord: Meat and Highway Drivers, Dockman, Help-
ers and Miscellaneous Truck Terminal Employees, Local Union No. 710, Teamsters,
(Wilson & Co.) v. N.L.R.B., 335 F. 2d 709 (C.A.D.C.).
2. As already found, Addendum B on its face restricts subcontracting by Associa-
tion members to "contractors " under contract with the Union . It does not confirm
itself to unit employees; i.e., employees of the employers composing the multi-
employer associations . It concerns itself only with the status of the subcontractor
selected by the signatory employer-whether he has "a signed agreement with Local
Union No. 28 ." The ostensible purpose of the addendum appears to be to safeguard
the work opportunities of the Union 's members throughout its territorial jurisdiction,
within and without the associationwide unit. As pointed out, however , such objec-
tive-to protect and preserve the work of the Union 's members generally-must be
presumed to be secondary and unlawful.16
16 "Contracts which permit subcontracting , but attempt to limit the choice of sub-
contractors to those which recognize and have collective- bargaining agreements with a
union, have long been held to be violative of Section 8(e) " Teamsters , Chaisffcvrs, Ware-
housemen & Helpers Local No. 631, International Brotherhood of Teamsters, etc (Reyn-
olds Electrical and Engineering Co, Inc ), 154 NLRB 67 (59 LRRM 1716, 1719). See
also Bakery Wagon Drivers, supra, 357 This principle applies with equal force to agree-
ments limiting the products to be worked on to Union products See N L R B. V.
Washington-Oregon Shingle Weavers' District Council, at al, 211 F. 2d 149 (C A 9).
"We see no meaningful distinction between a contract which prohibits an employer from
handling products produced by a nonunion firm and a contract which causes an employer
to cease subcontracting work to a nonunion firm Both clearly contravene Section 8(e)."
District 9, International Association of Machinists, AFL-CIO (Greater St. Louis Auto-
motive Trimmers , etc.), 134 NLRB 1354, 1358, affil 315 F 2d 33, 36 (CAD C )
16 The language of Addendum B is materially different from that in the fabrication
clause in United Association Pipe Fitters, Local Union No. 455, et al (American Boiler
Manufacturers Association ), 154 NLRB 285, relied on by the Union The clause there
provided that "As a primary condition ," trim piping "shall be fabricated on the job site
or in the shop of an Employer within the bargaining unit who is bound by this agree-
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The secondary purpose (as well as effect) of Addendum B is accentuated by other
language therein. Association members comprising the multiemployer unit are
expressly identified in the contract collectively as "the employer," a term consistently
used to denote signatory employers throughout the contract. Addenum B, on the
other hand, uses the term "contractor " It thus appears that the addendum was
designed to cover dealings between unit employers and nonunit employers; i.e. to
regulate the persons with whom unit employers could subcontract Cf. Raymond O.
Lewis, et al (Arthur J. Galligan), 144 NLRB 228, 236. It sanctions subcontracting
if the fabricating is done by nonunit employees, so long as they are Local 28 mem-
bers. There is, therefore, no merit to the Union's contention (brief p. 12) that the
addendum "restricts the fabrication of dampers, and other items listed, to bargaining
unit contractors only." To accept this contention is to render the phrase "having a
signed Agreement with Local Union No. 28" sheer surplusage, since all "unit con-
tractors" have contractual relations with the Union.
The union-security clause in the contract (sec. 3, art. 4) further supports the view
that the Union's objective was to protect union work generally. Under that section,
"the employer" performing work outside the jurisdiction of Local 28, may employ
nonunit employees, provided that they are members of a sister local. The contract
in effect establishes a system of priority: (1) all work within the territorial jurisdic-
tion of Local 28 (New York City) must be done by Local 28 members, whether or
not unit employees (i e. employees of association members); and (2) all work out-
side Local 28's territorial jurisdiction must be done by members of a sister local,
although not unit employees. The overall work-protection scheme is plain-protec-
tion of Union, as opposed to unit work.
As the Board has observed in the context of an analogous situation in Raymond O.
Lewis, et al. (Arthur J. Galligan), 144 NLRB 221, 237, "Had the contracting
parties been concerned with preserving contract work to the employees covered by
the contract, they could have completely banned `substitute' purchases from employ-
ers not covered by the contract." Further, had they really been interested in the
primary object of protecting unit employees, they could readily have chosen appro-
priate language to achieve that objective, even in drafting a partial subcontracting
clause. Thus, the parties could have stipulated for subcontracting only if the unit
employees were fully employed, or if they lacked the necessary skills, or if the
signatory employers did not possess the requisite equipment and facilities. In short,
"it would appear to be a simple matter" (Employing Lithographers of Greater Miami,
Florida (Miami Post) v. N L.R.B., 301 F. 2d 20, 28 (C.A. 5)) to have written a
work-preservation clause. Cf Meat and Highway Drivers, Dockman, Helpers and
Miscellaneous Truck Terminal Employees, Local Union No 710, Teamsters (Wilson
& Co.), 335 F. 2d 709, 715-716 (C.A.D.C.); District No. 9,, International Association
of Machinists, AFL-CIO v N.L R.B., 315 F 2d 33, 36-37 (C.A.D.C.).
3. In reaching the conclusions herein, I have not overlooked the origin of Adden-
dum B and the history of the negotiations leading to its adoption-circumstances on
which the Union heavily relies to support its position that the addendum is a primary
work-preservation provision. This history, however, confirms rather than under-
mines the conclusion that Addendum B was designed to protect the job opportunities
of the Union's members generally, not of the unit employees particularly. The
Addendum was incorporated in the collective agreement after the 1960 negotiations
and an 8-week strike to implement the Union's demands, including its insistence upon
a provision to meet "a serious diminution in job opportunities for the members" of
ment." Addendum B is not phrased in terms of fabrication "within the bargaining unit"
or "on the job site." In any event, the Board specifically reserved passing on the legality
of the clause in American Boiler, because that issue was not before it Instead, the
Board held that "a new ad hoc agreement," interpreting the above-quoted contract clause
as prohibiting "entirely" the installation of packaged boilers at the construction site, was
a pure "work-preservation" agreement and, hence, fell outside the scope of the general
hot cargo prohibition of Section 8(e) ; and that even if it did not, it was protected by
the special construction-industry proviso because the new agreement "by its terms in-
dicates no intent that the trim-piping work here involved should be done at any location
other than at the job site" Addendum B herein is more similar to a clause the Board
held violative of Section 8(e) in a companion decision issued the same day, United Asso-
ciation Pipe Fitters, Local Union No. 539 (American Boiler Manufacturers Association),
154 NLRB 314 The clause in question read: "The employer agrees not to sublet or
contract out any work covered herein unless the contractor to whom the work is sublet is
in agreement with a Union affiliated with the United Association "
LOCAL UNION NO. 28 , SHEET METAL WORKERS 813
Local 28, resulting from anticipated technological changes and automation . 17 There
is some evidence also "that there has been and is unemployment amongst members
of Local 28 since October , 1963," although its extent is not indicated in the record.18
Be that as it may, the evidence adverted to demonstrates no more than that the
Union, apprehensive about future security of its members in the industry , sought to
maximize employment opportunities for them, wherever or whether employed at
the time of the negotiations . The evidence does not bear out its contention that the
Union's sole motive was to shield itself against encroachments on the existing work
of the unit employees only. "The bare words of [Addendum B] do not lend them-
selves to such an interpretation . They fairly suggest a concurrence between the
union and the Association to boycott another employer for reasons not strictly
germane to the economic integrity of the economic work unit . Congress has set
its face against such concurrence or agreement ." District 9 , I.A.M., supra, 36.
For the reasons stated, I conclude that Addendum B is an unlawful agreement
prohibited by Section 8(e) of the Act ; and that Respondent Local 28, its agent
Farrell, and the associations by reaffirming , and continuing to give effect to, its
provisions in December 1964 and January 1965, entered into an agreement in viola-
tion of that section.19
B. The alleged secondary activity in violation of Section 8 ( b)(4)(ii)(A) and (B)
As found , on December 4, 1964, Union President Farrell demanded that Fuller dis-
close the identity of the manufacturer supplying the dampers to Kerby, and stated
that if he failed to secure the information promptly "he might have to pull the men
off the job." Farrell later learned that Johnson, a Milwaukee manufacturer employ-
ing Local 24 members, manufactured and supplied them. On December 7, at a
conference attended by representatives of Kerby, Fuller , National, Johnson, and
Local 28, Farrell warned that "if the dampers were not going to be made by Local 28,
all of them, that he was going to take the men off the job the next day." After
referral of the dispute concerning the Johnson dampers to the joint adjustment board,
the Mechanical Association requested its members to maintain "strict compliance"
with Addendum B. At a later meeting between representatives of Johnson and
Local 28 on January 20 , 1965, Farrell insisted that "he was not going to accept any
fabricated items not made by Local 28, and he would not make an exception in the
case of the D-1300." Johnson 's attempts to deliver its dampers to the jobsite were
17 The considerations leading to adoption of Addendum B were spelled out for the first
time in an introduction to the addendum incorporated in the amended 1963 contract,
reading in part:
Historically the sheet metal worker , a skilled journeyman with four ( 4) years
apprenticeship training , has always been unique in that he has fabricated what he
has erected . . . . Lately the introduction of machine -made products for the con-
veying and distribution of air in air -conditioning systems has posed a serious threat
to the nature and extent of job opportunities of the sheet metal worker . Convinced
that the introduction of these items , which are intended to reduce labor costs with
resultant loss of job opportunities and give no benefits of automation to the sheet
metal workers , and reduce his trade to an erection trade only, and obviate the need
for and the use of his skills as a fabricating craftsman , the sheet metal worker and
his Union have insisted that reasonable rules be adopted for the conservation and
spreading of work opportunities and his terms of employment . . To meet these
demands for the preservation and extension of work opportunities and job conditions
after an eight ( 8) week strike, and in consideration of the Union dropping many
demands similarly designed to conserve work opportunities and to protect working
conditions, the Employer has consented to the following Rules . . . which the Union
deems necessary.
18In its brief ( p. 6), the Union states that "Today more than 250 members are out of
work . " but the number of members in the associationwide unit , or in New York
City itself , is not disclosed . At the hearing a Johnson official testified that in his Jan-
uary 20, 1965, meeting with Union President Farrell regarding the Johnson dampers, the
latter expressed concern about the employment situation in New York around that period.
19 The Union ' s demand that the Associations and its members abide by the hot cargo
provisons and that latter 's compliance therewith , constituted reaffirmation of the exist-
ing unlawful hot cargo contract and, therefore, agreement " to enter into" within the
meaning of Section 8 ( e) of the Act . See International Longshoremen's Association, AFL-
CIO (The Board of Harbor Commissioners , Wilmington , Delaware ), 137 NLRB 1178,
1186-1187, enfd . 331 F. 2d 712 ( C.A. 3) ; District No 9 , LA.M, supra, 35, enfg 134
NLRB 1354 , 1358-1359.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
successfully resisted . As a result, Johnson , with the approval of Kerby and Fuller,
substituted dampers of a different design manufactured by an employer -member
of the Mechanical Association with which Local 28 had a contractual relationship.
Insofar as here relevant, Section 8(b) (4) (ii) (A) prohibits a union or its agents
from threatening , restraining , or coercing secondary employers , where an object of
such conduct is to force or require a secondary employer "to enter into any agree-
ment which is prohibited by Section 8(e)." Section 8(b)(4)(ii )(B) proscribes
similar union action where an object thereof is to force or require a secondary
employer to cease using and handling the products of, or to cease doing business
with, the primary or disputing employer. I find that Farrell 's statements to repre-
sentatives of Kerby, National , and Fuller on December 4 and 7-warning that he
would pull Local 28 members off the job if the dampers to be installed were not
manufactured by Local 28 members-constituted restraint and coercion of secondary
or neutral employers within the meaning of Section 8 (b)(4)(ii ). I further find
that an object of such conduct was to force or require Kerby , National, Fuller, and
the associations to reaffirm and enter into an agreement prohibited by Section 8(e)-
an object proscribed by Section 8(b) (4) (A). I find that an additional object of
Farrell's conduct was to force or require Kerby, National , and Fuller to cease using
and handling the Johnson dampers or to bring about a cessation of business between
said secondary employers and Johnson-objects proscribed by Section 8(b) (4) (B)
of the Act. See N.L R.B. v. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 294 (Island Dock Lumber, Inc.),
342 F. 2d 18, 21-22 (C.A. 2), enfg. 145 NLRB 484; Ohio Valley Carpenters District
Council (Hankins & Hankins Constr.) v. N.L.R.B., 339 F. 2d 142 (C.A. 6), enfg_
144 NLRB 91.
The Union contends ( brief p. 21 ) that it "cannot be found to have had any sec-
ondary object , since it was objecting solely to conduct by a contractual party, Kerby,
with whom it had a live dispute ... " This contention , however, is based on the
misconception that Kerby, not Johnson , was the primary or disputing employer.
Although determination of which employer is the "primary " employer is not always
easy to make (Cf Local 761, International Union of Electrical , Radio and Machine
Workers, AFL-CIO (General Electric Company) v. N.L.R.B., 366 U.S. 667, 673),
the general rule is that the primary employer is the one with whom the union has
its ultimate or basic dispute ; i.e., the one "with whom the union is principally at odds."
Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL-CIO,
et at (Sand Door & Plywood Co ) v. N.L.R.B., 357 U.S. 93, 99. See also, District
No. 9, I.A.M., supra, 37; N.L R B. v. International Brotherhood of Teamsters, etc.,
Local 294 (Island Dock Lumber, Inc.), 342 F. 2d 18, 22 (C.A. 2) Here, the basic
dispute was with Johnson , whose dampers the Union sought to exclude from the job-
site because they were not produced by Local 28 members. Kerby (and National
and Fuller ) were like "the employer in the typical secondary boycott situation,
powerless to end the dispute by breaking off business relations with [the offending
employer] " Local 636 of the United Association of Journeymen and Apprentices
of the Plumbing and Pipe fitting Industry of the U.S. and Canada, AFL-CIO (Detroit
& Edison Co.) v N.L R B, 278 F. 2d 858, 864 (C.A.D.C.). Kerby did, indeed,
terminate the dispute by canceling its order for the Johnson dampers , in response to
Local 28's threats and coercion The Union thus "forced [Kerby] to `cease doing
business ' with the actual primary employer [Johnson ], within the meaning of the
objects prohibited by Section 8(b)(4)(B )." International Brotherhood of Team-
sters, etc, Local 294, supra, 342 F. 2d at 22 20
On the basis of the entire record , I conclude that the Union 's conduct came within
the ambit of Section 8(b) (4) (ii) (A) and (B) of the Act.
' In the cited case , the court rejected a similar claim that by forcing a signatory em-
ployer to cancel his contract with a subcontractor employing members of another union,
the union only sought to enforce its agreement with the signatory . The court further
held that , "Even a lawful agreement would not permit the use of such coercive measures
against a secondary employer to force him to cease doing business with the primary em-
ployer " See also , Ohio Valley Carpenters District Council v . N.L R B , 339 F. 2d 142,
145 (C A. 6) ; Teamsters , Chauffeurs, Warehousemen & Helpers Local Union No 641, Team-
sters ( Reynolds Electrical and Engineering Co, Inc.), 154 NLRB 67 "[TInder Sec-
tion 8 ( b) (4) (B) such secondary clauses may be enforced only through lawsuits , and not
through economic action " Orange Belt District Council of Painters , No 48, AFL-CIO,
et al ( Calhoun Drywall Co ) v N L R.B., 328 F. 2d 534 , 537 (C A D.C ).
LOCAL UNION NO. 28, SHEET METAL WORKERS 815
C. The Union's contention that the Board should give effect to the
joint adjustment board's determination
As previously found, the dispute about the installation of Johnson's D-1300
dampers was referred to a bipartite body (the joint adjustment board, consisting of
representatives of Local 28 and the associations ), under the collective agreement.
Both sides agreeing that Kerby's arrangement to use Johnson's dampers on the
Alexander project was a violation of Addendum B, the Johnson dampers were not
installed.21 The Union contends that "the decision of the joint adjustment board
constitutes compliance with the mandates of the Act and should be recognized by
the Board."
The Union's contention is without merit. To begin with, the Spielberg doctrine,
on which the Union relies,22 is applicable to a proceeding culminating in an arbitral
award by an impartial body or person. Contrary to the Union' s contention, the
joint adjustment board is not "a disinterested body," and its decision is not "the
equivalent of an Arbitrator's decision." To the contrary, "it appears from the evi-
dence that all members of the bipartite panel may be arrayed in common interest"
against the Charging Party, and that "strong doubt exists as to whether the pro-
cedures comport with the standards of impartiality that we expect to find in arbitra-
tion." See Roadway Express, Inc., 145 NLRB 513, 515. See also Harrah's Club, 150
NLRB 1702, footnote 55.23 Indeed, the joint adjustment board is composed of the
very parties here together charged with joint violations of the statute. In addition,
the dispute over the nature of Addendum B involves construction of statutory rights
involving questions of public interest, within the special competency of the National
Labor Relations Board. See, Cloverleaf Division of Adams Dairy Co., 147 NLRB
1410, 1415-1416; Sheet Metal Workers International Association, Local No. 141
(The American Sign Company), 153 NLRB 537.
Accordingly, in the light of all circumstances, I conclude that this case is not one
in which the National Labor Relations Board would defer to the adjustment machin-
ery set up by contract and decline to assert its jurisdiction over the unfair labor prac-
tices charged
N. THE REMEDY
Having found that Respondents have engaged in certain unfair labor practices, I
shall recommend that they cease and desist therefrom and that they take certain
affirmative action designed to effectuate the purposes of the Act.
General Counsel seeks a broad restraining order against the Union because it
engaged in the illegal conduct "in furtherance of its established policy to boycott
any product described in Addendum B if manufactured by any non-signatory
employer ... In other words, the Union's unlawful conduct was directed, not exclu-
sively against the D-1300 [dampers], or against Johnson, but rather against all the
items described in Addendum B regardless of who the non-signatory fabricator of
such products might be." This contention has merit. Particularly in view of the
fact that two employer associations are signatories to the contract, and the fact that
the Union claims the right to exclude from its broad territorial jurisdiction (New
York City area) all fabricated items covered by Addendum B unless manufactured
by its members, I find that there is real danger that the Union may in the future
engage in the same kind of unfair labor practices with respect to fabricated products
other than dampers and with respect to primary and secondary employers other than
those here involved. I shall recommend a broad cease-and-desist order designed to
prevent commission of similar and related unfair labor practices, which may reason-
ably be anticipated See Teamsters, Chauffeurs, etc., Local Union No. 631 ( Reynolds
Electrical and Engineering Co., Inc.), 154 NLRB 67 (59 LRRM 1714, 1719); Glass
Workers Local Union 1892, Brotherhood of Painters, Paperhangers and Decorators
21As the Union points out, the associations ' acquiescence in Local 28 's position that
use of the dampers was a violation of the contract , obviated the necessity of invoking
the second ( and final ) step in the contractual settlement procedure-submission of the
dispute to the industry 's impartial chairman
'' Spielberg Manufacturing Company, 112 NLRB 1080, 1082, where the Board stated
that it would not honor an arbitration award unless "the proceedings appear to have
been fair and regular , all parties had agreed to be bound , and the decision of the arbitra-
tion panel is not clearly repugnant to the purposes and policies of the Act "
as This factor alone distinguishes cases relied on by the Union, such as Service and
Maintenance Employees' Union, Local No 499 (Kai Shon, (7/ b/a Superior Souvenir Book
Company ), 148 NLRB 1033, where the Board gave effect to decisions of neutral arbitrators.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of America, AFL-CIO (Frank I. Rooney, Inc.), 141 NLRB 106. See also, NLRB
v. Springfield Building and Construction Trades Council, et al. (Leo Spear Construc-
tion Co.) 262 F. 2d 494, 498-499 (C.A. 1).
Because Respondent Associations have acquiesced in Local 28's illegally broad
interpretation and application of Addendum B, I shall likewise recommend a broad
cease-and -desist order against them including their membership , in order to make
the order effective.
CONCLUSIONS OF LAW
1. Addendum B of the collective agreement between Respondents Local 28 and
the Mechanical and Sheet Metal Associations, to the extent that it provides that
certain fabricated items enumerated therein are to be manufactured by a con-
tractor having a signed agreement with Local 28, constitutes an agreement prohibited
by Section 8(e) of the Act.
2. By reaffirming, and thereby entering into the above provisions of Addendum B,
Local 28 and the associations have engaged in unfair labor practices within the
meaning of Section 8 (e) of the Act.
3. By threatening, coercing, and restraining Kerby, Fuller, and National, with an
object of forcing or requiring the associations and Kerby to abide by, reaffirm, and
enter into an agreement prohibited by Section 8(e), and with the further object of
forcing or requiring Kerby to cease using and handling the dampers of, or doing
business with, Johnson, Local 28 and Mell Farrell, its president, have engaged in
unfair labor practices within the meaning of Section 8(b) (4) (ii) (A) and (B) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, it is recommended that:
A. Local Union No. 28, Sheet Metal Workers' International Association, AFL-
CIO, its agents, officers, representatives, successors, and assigns, and its president,
Mell Farrell, shall-
1. Cease and desist from:
(a) Giving effect to, enforcing, or otherwise entering into, Addendum B of the
collective-bargaining agreement between it and Mechanical Contractors' Association
of New York, Inc., and Sheet Metal Contractors Association of New York, Inc.,
effective July 1, 1963, to June 30, 1966, or any agreement, understanding, or provi-
sion to the same or substantially similar effect, to the extent found unlawful herein.
(b) Giving effect to, enforcing, or other wise entering into, any other contract or
agreement, express or implied, and unlawful under Section 8(e) of the Act, whereby
any employer-member of any of the associations named in (a), above, or any other
employer, ceases or refrains, or agrees to cease or refrain, from handling, using,
selling, transporting, or otherwise dealing in any of the products of any other
employer, or from doing business with any other person.
(c) Threatening, coercing, or restraining Kerby Saunders, Inc., George A. Fuller
Company, National Sheet Metal Works, Inc., or any other person engaged in com-
merce or in any industry affecting commerce, where, in either case, an object thereof
is to force or require Kerby Saunders, Inc., or any other person, to cease doing busi-
ness with Johnson Service Company, or with any other person with whom Respond-
ent Local No. 28 has a dispute over manufacture, delivery, or installation of any
product within its territorial jurisdiction in claimed violation of Addendum B of its
current labor agreement herein involved or of any similar provision in any other
or subsequent agreement.
2. Take the following affirmative action, which, I find will effectuate the policies
of the Act
(a) Post at Respondent Union's business offices and meeting halls, copies of the
attached notice marked "Appendix A." 24 Copies of said notice, to be furnished by
24 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words, "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words, "a Decision
and Order."
LOCAL UNION NO. 28, SHEET METAL WORKERS 817
the Regional Director for Region 2, shall, after being duly signed by the authorized
representative of the Respondent Union and by Respondent Mell Farrell, be posted
by Respondent Union immediately upon receipt thereof, and be maintained by it
for 60 consecutive days, in conspicuous places, including all places where notices to
their members are customarily posted. Reasonable steps shall be taken to insure
that such notices are not altered, defaced, or covered by any other material.
(b) Sign and deliver sufficient copies of said notice to the Regional Director for
Region 2 for posting by Kerby Saunders, Inc., George A. Fuller Company, National
Sheet Metal Workers, Inc., and all other employers involved in this proceeding, who
may be desirous of so doing, at locations where notices to their respective employees
are customarily posted.
(c) Notify the Regional Director for Region 2, in writing, within 20 days from the
receipt of this Decision, what steps Respondents have taken to comply therewith.25
B. Mechanical Contractors' Association of New York, Inc., Sheet Metal Con-
tractors Association of New York, Inc., their respective agents, officers, representa-
tives, successors, and assigns, shall:
1. Cease and desist from:
(a) Giving effect to, enforcing, or otherwise entering into Addendum B of the
collective-bargaining agreement between them or either of them and Local Union
No. 28, Sheet Metal Workers' International Association, AFL-CIO, effective July 1,
1963, to June 30, 1966, or any agreement, understanding, or provision to the same
or substantially similar effect, to the extent found unlawful herein.
(b) Giving effect to, enforcing, or otherwise entering into any other contract or
agreement, express or implied, and unlawful under Section 8(e) of the Act, whereby
they or either of them or any of their members, ceases or refrains, or agrees to cease
or refrain, from handling, using, selling, transporting, or otherwise dealing in any
of the products of any other employer, or from doing business with any other person.
2. Take the following affirmative action which, I find will effectuate the policies
of the Act:
(a) Post at their principal offices, places of business, copies of the attached notice
marked "Appendix B." 26 Copies of said notice, to be furnished by the Regional
Director for Region 2, shall, after being duly signed by Respondents' authorized
representatives, be posted by Respondents and each of their members, immediately
upon receipt thereof, and be maintained by them for 60 consecutive days, in con-
spicuous places, and places where notices to their employees are customarily posted.
Reasonable steps shall be taken to insure that such notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director for Region 2, in writing, within 20 days from
the receipt of this Decision, what steps each has taken to comply therewith.27
'- In the event that this Recommended Order be 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 herewith
26 See footnote 24, supra.
27 See footnote 25, supra.
APPENDIX A
NOTICE TO ALL OUR MEMBERS
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT give effect to, enforce, or otherwise enter into Addendum B
of the collective-bargaining contract between this Union and Mechanical Con-
tractors' Association of New York, Inc., and Sheet Metal Contractors Associa-
tion of New York, Inc., effective July 1, 1963, to June 30, 1966, or any agree-
ment, understanding, or provision to the same or substantially similar effect,
to the extent found unlawful in the Trial Examiner's Decision.
WE WILL NOT give effect to, enforce, or otherwise enter into any other con-
tract or agreement, express or implied and unlawful under Section 8(e) of
the Act, whereby any employer-member of any of the associations named above,
or any other employer, ceases or refrains, or agrees to cease or refrain from
handling, using, selling, transporting, or otherwise dealing in any of the products
of any other employer, or from doing business with any other person.
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten, coerce, or restrain Kerby Saunders, Inc., George A.
Fuller Company, National Sheet Metal Works, Inc., or any other person engaged
in commerce or in an industry affecting commerce where, in either case, an
object thereof is to force or require Kerby Saunders, Inc., or any other person,
to cease doing business with Johnson Service Company, or with any other
person with whom we have a dispute over manufacture, delivery, or installation
of products within our territorial jurisdiction in claimed violation of our afore-
mentioned bargaining agreement or similar agreement.
LOCAL UNION No. 28, SHEET METAL WORKERS' INTERNATIONAL
ASSOCIATION, AFL-CIO, AND MELL FARRELL, ITS PRESIDENT,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
Dated------------------- BY-------------------------------------------
MULL FARRELL (President)
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.
Information regarding the provisions of this notice and compliance with its terms
may be secured from the Regional Office of the National Labor Relations Board,
Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone
No. 751-5500.
APPENDIX B
NOTICE TO ALL MEMBERS OF MECHANICAL CONTRACTORS' ASSOCIATION OF NEW
YORK, INC., AND ALL MEMBERS OF SHEET METAL CONTRACTORS ASSOCIATION OF
NEW YORK, INC.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT give effect to, enforce or otherwise enter into Addendum B of
the collective-bargaining contract between these Associations and Local Union
No. 28, Sheet Metal Workers' International Association, AFL-CIO, effective
July 1, 1963, to June 30, 1966, or any agreement, understanding, or provision to
the same or similar effect, to the extent found unlawful in the Trial Examiner's
Decision.
WE WILL NOT give effect to, enforce, or otherwise enter into any other contract
or agreement, express or implied and unlawful under Section 8(e) of the Act,
whereby we or any member of either of these associations, ceases or refrains,
or agrees to cease or refrain from handling, using, selling, transporting, or
otherwise dealing in any of the products of any other employer, or from doing
business with any other person.
MECHANICAL CONTRACTORS' ASSOCIATION OF NEW YORK, INC.,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
SHEET METAL CONTRACTORS ASSOCIATION OF NEW YORK, INC,
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.
Information regarding the provisions of this notice and compliance with its terms
may be secured from the Regional Office of the National Labor Relations Board,
Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone
No. 751-5500.