Pipe Fitters Local 539

National Labor Relations Board - Board Decisions

Sep 27, 1967

167 N.L.R.B. 606 (N.L.R.B. 1967)

606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Association Pipe Fitters Local Union No. 539
and United Association Plumbers & Gasfitters
Local Union No. 15 , both affiliated with the United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada , AFL-CIO, and Mechanical
Contractors Association of Minneapolis , Inc., et al.
and American Boiler Manufacturers Association
United Association Pipe Fitters Local Union No. 539
affiliated with the United ' Association of Jour-
neymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada,
AFL-CIO (Lamb Plumbing & Heating Co., et al.)
and American Boiler ManufacturersAssociation.
Cases 18-CE-5 and 18-CC-144
September 27, 1967
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING, BROWN , AND JENKINS
On August 5, 1965, the National Labor Rela-
tions Board issued a Decision and Order in the
above-entitled proceeding,' finding, inter alia, (1)
that no issue was before it concerning the legality,
under Section 8(e) of the National Labor Relations
Act, as amended, of the fabrication clause in the
1963 collective-bargaining agreements between
Respondent Local Union No. 539 and Respondent
Employers because the General Counsel had not al-
leged in the complaint, nor urged at the hearing, that
this clause was per se unlawful; and (2) that no ad
hoc agreement violative of Section 8(e) was entered
into, and Respondent Local Union No. 539 did not
violate Section 8(b)(4)(A) or (B), with respect to the
Tonka Toys Construction project.
On October 6, 1966, the United States Court of
Appeals for the Eighth Circuit issued its opinion2 in
which it vacated and set aside the Board's findings
that no 8(e) violations occurred and that there were
no Section 8(b)(4)(A) or (B) violations with respect
to the Tonka Toys project. The court remanded the
case to the Board with directions to determine the
legality of the fabrication clause, an issue which the
court held had been fully litigated; to reexamine, in
the light of such determination, the issues appealed
to the court by the Charging Party; and for further
proceedings consistent with the views expressed in
the court's opinion.
154 NLRB 314, Members Fanning and Brown concurring in part
s 366 F 2d 823 No review was sought of the Board's additional
findings that (1) Respondent Local Unions No 539 and 15, and Respond-
ents Contractors Association and its member-contractors violated Sec
8(e) of the Act by including the original fair standards clause in their 1963
collective-bargaining agreements, (2) Respondent Local Union No 15
did not otherwise violate the Act, (3) Respondent Local Union No 539
and Burnice's, Inc , did not violate Sec 8(e), and Respondent Local
The Board has reconsidered its original Decision
and Order with respect to the issues remanded in
the light of that court' s opinion , and also of the
Supreme Court' s opinions in National Woodwork
Manufacturers Association, et al. v. N.L.R.B., 386
U.S. 612, and Houston Insulation Contractors As-
sociation v. N.L.R.B., 386 U.S. 664, which bear
upon the issues in this case.
1. THE ALLEGED 8(e) VIOLATIONS
A. The Fabrication Clause
The record establishes that Local Union No. 539
represents steamfitters, gas fitters, and oil burner
mechanics under collective-bargaining agreements
with the Contractors Association for its members
and also signed by other nonmember mechanical
contractors in the Minneapolis area. Prior to 1957,
most of the external or "trim" piping on boilers to
be installed in this area was shipped from the facto-
ry separately from the boilers, and attached at the
jobsite by members of Local Union No. 539.
Packaged boilers, with trim piping attached at the
factory were introduced in 1951, and their use
gradually increased until 1963, when they totaled
60 to 70 percent of all boiler installations in the
area.
As attaching trim piping on each boiler at the
jobsite provided two men with 2 days' work, the ad-
vent of packaged boilers resulted in a decrease of
work for members of the Union. The Union there-
fore requested, in 1959 and 1961, and finally ob-
tained in its 1963 agreement with the Contractors
Association and other independent mechanical con-
tractors in the, area, a fabrication clause which pro-
vided, in substance, that, "As a primary working
condition," trim piping "shall be fabricated on the
job site or in the shop of the employer signatory
hereto by employees covered by this agreement."
As directed by the court of appeals, we have con-
sidered the legality of this clause under Section 8(e)
of the Act, and we find that under the guidelines
established by the Supreme Court in the National
Woodwork and Houston Insulation cases, supra,
the clause was not violative of Section 8(e). The
provisions of this clause, as well as the circum-
stances surrounding its adoption, are similar to
those in the companion case remanded simultane-
ously by the court of appeals and reconsidered
herewith. -I This clause, like the one in that case, ap-
plied only to work performed by employees of em-
ployers in the Contractors Association multiem-
Union No 539 did not violate Sec 8(b)(4) with respect to Burnice's, Inc ,
and (4) Respondent Local Union No 539 did not violate Sec 8(b)(4) with
respect to the Midwest Oil and the Pure Food and Drug projects
M1 United Association Pipe Fitters Local Union No 455, et al and St
Paul Association of Plumbing, Heating, and Mechanical Contractors,
Inc , et al (American Boiler Manufacturers Association), 167 NLRB
602
167 NLRB No. 80
PIPE FITTERS LOCAL 539
ployer unit and employees in single-employer units
whose employers had agreed to this clause in their
contracts with Local Union No. 539. Moreover, the
trim-piping work had traditionally been performed
on the construction site by employees in such units
represented by Local Union No. 539; the advent of
packaged boilers had a direct impact on the amount
of such work available to them; and the Union's
sole object in negotiating the fabrication clause was
to preserve and reacquire such work for the unit
employees of the contracting employers. There is
no evidence that the tactical object of the clause
was the packaged-boiler manufacturers or any other
employers. Accordingly, we conclude that the fabri-
cation clause was a primary work-preservation
clause , and therefore outside the scope of Section
8(e) of the Act.4
B. The Alleged Ad Hoc Agreements
We also affirm the Board 's finding , in its original
Decision , that no subsequent ad hoc agreements
were entered into at any of the projects here in-
volved interpreting or applying the fabrication
clause in a manner prohibited by Section 8(e). As
the Board found , when representatives of the Union
learned that packaged boilers had been ordered for
installation at these projects , they protested that
this was contrary to the fabrication clause, and
requested or demanded that the trim piping be
removed from the packaged boilers which had been
ordered . However , the contractors at these projects
did not agree to the Union ' s demands , and the
packaged boilers were installed as delivered
without delay . Therefore , as no agreements to
remove piping were reached, we affirm the original
finding that this conduct did not constitute the en-
tering into of new agreements within the meaning of
Section 8(e).
II. ALLEGED VIOLATIONS OF SECTION 8(b)(4) AT
THE TONKA TOYS PROJECT
The record shows that Lamb Company, a
member of the Contractors Association and a party
to the 1963 agreement with Local Union No. 539,
through its area agent Heinen Company , ordered a
packaged boiler to be installed in the Tonka Toys
building project. The boiler was delivered about
October 1, 1963. Union Representative Tufte, on
or about that date, went to the jobsite, where he
spoke to Harper, Lamb Company's supervisor, in
the presence of Lantto, its foreman and a member
607
of the Union. Tufte stated, in effect, that certain
items would have to be removed from the boiler be-
fore it could be installed, and asked Harper whether
he had a copy of the Union's agreement. When
Harper said he did not, Tufte pointed out items to
be removed and then reinstalled by members of
Local Union No. 539 and stated that, if this were
not done he would have to pull his men off the job.
Tufte also told the Heinen Company president that
certain piping on the boiler at the Tonka Toys pro-
ject would have to be removed and reattached, and
that "all manufacturers of this equipment or
representatives of equipment coming in, would
have to comply with this [fabrication ] clause." He
later told the Lamb Company president that "this
trim piping was something that we had threshed
over in regards to our contract when we negotiated
it and we were wondering as to how long it was
going to be before we were going to be entitled to do
this type of work." The boiler was installed by em-
ployees of Lamb Company, without any delay or
disassembly.
The Board's original Decision found that Tufte's
threat to Harper , in the presence of Lantto , that he
would pull his men off the job if certain items were
not removed from the boiler was not for an object
proscribed by the Act. In our view Tufte's sole ob-
ject in the course of this incident was to implement
the fabrication clause at the Tonka project by secur-
ing the assignment of trim-piping work by Lamb
Company to its own employees. We have found
above that the fabrication clause was a lawful pri-
mary agreement. As Lamb Company was a member
of the Contractors Association and a signatory to
the 1963 agreement , its employees were in the As-
sociation unit represented by Local Union No. 539.
It is apparent from all the circumstances that the
Union's aim , by the conduct here in issue, was to
preserve or obtain for employees in this unit work
which they had historically performed and to
prevent the assignment of such work to employees
outside the unit . We affirm the Board's original find-
ing, therefore , that the dispute was primary, and
that the evidence fails to establish that the conduct
of Local Union No. 539 in the course of the Tonka
Toys incident was violative of the Act.
ORDER
Accordingly, we affirm the Board 's Decision and
Order dismissing the complaint with regard to the
issues remanded.
J The reference in the fabrication clause to the performance of such
work in the shop of the employer does not change its primary nature See
United Association Pipe Fitters Local Union No, 455, supra, fn 5