Pipe Fitters Local No. 120

National Labor Relations Board - Board Decisions

Dec 27, 1967

168 N.L.R.B. 991 (N.L.R.B. 1967)

PIPE FITTERS LOCAL NO. 120
Pipe Fitters Local No. 120 , United Association of
Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and
Canada , AFL-CIO (The Spohn Corporation,
Wrightco, Inc., and all other Members of Mechani-
cal Contractors ' Association of Cleveland, Inc.)
and Mechanical Contractors ' Association of
Cleveland, Inc.
Pipe Fitters Local No. 120, United Association of
Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and
Canada, AFL-CIO (The Spohn Corporation,
Wrightco, Inc., and all other Members of Mechani-
cal Contractors' Association of Cleveland, Inc.)
and The Trane 1 Co. Cases 8-CC-243,
8-CC-244, 8-CC-245, and 8-CC-266
December 27, 1967
DECISION AND ORDER
On September 21, 1966, Trial Examiner Sidney
Sherman issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
The Trial, Examiner deferred ruling on certain other
portions of the complaint. Thereafter, the General
Counsel, Respondent, and Charging Parties filed
exceptions to the Decision and supporting briefs.
The National Labor Relations 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 Deci-
sion, the exceptions and briefs, and the entire
record in the case,t and hereby adopts the findings,
conclusions, and recommendations of the Trial Ex-
aminer to the extent consistent herewith.
For a number of years Respondent has had col-
lective-bargaining contracts covering pipefitters
with Mechanical Contractors' Association of
Cleveland, Inc., herein called the Association,
which represents a number of mechanical contrac-
tors, including Wrightco, Inc., and The Spohn Cor-
poration, in the Cleveland, Ohio, area. The collec-
tive-bargaining contract during the period in
question provided that piping 2 inches or less in
diameter was to be fabricated at the jobsite.
In December 1963, the Cleveland Board of Edu-
cation signed a contract with Wrightco for the in-
stallation by the latter of heating and cooling ven-
Respondent's request for oral argument is hereby denied as the record
and briefs adequately present the issues and the positions of the parties.
8 The Trial Examiner found it unnecessary to decide whether Dingow
also threatened that Respondent's members would not install "prepiped"
units.
991
tilators at a local high school. In July 1964, the
Board of Education entered into a contract with
Spohn for the installation of similar equipment at
another local high school. The specifications by the
school board required ventilating units with "cross-
over" piping installed and inspected at the factory.
The specifications said nothing about "end-pocket"
piping. The contractors were free to select the units
from among four manufacturers of such equipment.
Both contractors arranged with The Trane Co. to
supply the units. Pursuant to the contracts and the
required procedure under the specifications, Trane
sent "submittal data" to both contractors for their
acceptance and the approval of the Board of Educa-
tion. The data showed not only the "cross-over"
piping, but also the "end-pocket" piping, factory in-
stalled. The Board of Education approved the "sub-
mittal data" in October 1964.
Late in January 1965, Respondent's agent, Din-
gow, visited Wright, an officer of Wrightco, to verify
information that Trane was to furnish the ventilat-
ing units "prepiped" to Wrightco. Dingow stated
that if the units contained certain factory installed
piping, Wrightco would be in violation of the As-
sociation's contract. According to the testimony
credited by the Trial Examiner, Dingow also
warned Wright that Respondent's members would
not connect the units at the jobsite if any of the in-
ternal piping, including the "cross-over" piping,
was installed at the factory. Late in February, Din-
gow also told an officer of Spohn that the installa-
tion of factory-piped units would be in violation of
the aforesaid contract.2
On March 3, a conference was held between rep-
resentatives of the Association and the Respond-
ent to settle the dispute over the installation of
"prepiped" units. The parties agreed that "accessi-
ble" end-pocket piping would be assembled on the
job, and the rest of the piping would be installed at
the factory. The next day the Association at-
tempted to withdraw from the agreement. Respond-
ent refused, insisting that its members assemble at
least the "end-pocket" piping at the jobsite. Despite
this position taken by the Respondent, when the
units were subsequently shipped to the two school
jobs with all the piping in place, they were installed
by members of Respondent.
The Trial Examiner found that Dingow's warning
to Wright that Respondent's members would not in-
stall the Trane units if they came "prepiped" con-
stituted restraint or coercion of Wrightco within the
meaning of Section 8(b)(4)(ii). We agree.3 We also
agree with the Trial Examiner that Dingow's threat
had a cease doing business objective and that in-
sofar as it pertained to the "cross-over" piping vio-
'
Local 456, Teamsters (Sid Harvey Westchester Corp.), 142 NLRB
1409, 1411; United Association Pipe Fitters Local Union No 539
(Mechanical Contractors' Assn ), 154 NLRB 314,319-320.
168 NLRB No. 138
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lated Section 8(b)(4)(ii)(B). However, we base this
conclusion on the following reasons: The Board of
Education had specified in its contract proposals
that "cross-over" piping be factory installed.
Wrightco therefore had no choice but to contract
with Trane for the installation of the "cross-over"
piping at the factory. The Board of Education and
not Wrightco was responsible for this decision and
only the former could change it. Wrightco was a
neutral as to this aspect of the pipe installation, with
the Board of Education being the primary em-
ployer. Hence, the pressure exerted against
Wrightco, a secondary employer, to force the Board
of Education, the primary employer, to change its
specifications was secondary action which was un-
lawful under Section 8(b)(4)(B).4
The case is different with respect to the "end-
pocket" piping.5 The Board of Education imposed
no requirement that such piping be factory installed.
This was a decision left to and made by Wrightco.
It may be that after the Board of Education's ap-
proval of Trane's "submittal data" which called for
factory installation of "end-pocket" piping,
Wrightco no longer had the right to perform the
work at the jobsite. As to this we express no
opinion. But this loss of power was the result of
Wrightco's own conduct. I could not contract away
the performance of its work and then claim the
status of a neutral .6
Respondent's collective-bargaining agreement
with the Association provided that piping 2 inches
or less in diameter would be fabricated at the
jobsite. In practical terms this meant that Respond-
ent's members would perform the work. The "end-
pocket" piping in dispute in this case came within
the 2-inch contract category. Respondent's mem-
bers have installed "end-pocket" piping at the
jobsite in heating units of manufacturers other than
Trane, and in similar but different model Trane
units. There is no indication that installation of such
piping in the Trane unit involved is any more com-
plex than that in comparable units. On the contrary,
Trane's field representative testified that installa-
tion of "end-pocket" piping in the unit ventilators
in question could be done in the field. Respondent's
members are qualified to perform such work. Under
all the circumstances, we find that Respondent's
objective in threatening Wrightco was to preserve
for Wrightco's employees unit work to which they
' Local 53, International Association of Heat and Frost Insulators and
Asbestos Workers (Reilly-Benton Co., Inc.), 149 NLRB 1075; Ohio Val-
ley Carpenters District Council (Cardinal Industries, Inc.), 144 NLRB
91, enfd. 339 F.2d 142 (C A. 6); Local 5, United Association of Jour-
neymen and Apprentices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO (Arthur Venneri Company), 137
NLRB 828, enfd. 321 F.2d 366 (C A D.C ), cert. denied 375 U.S. 921,
International Longshoremen's Association, Local 1694 (The Board of
Harbor Commissioners, Wilmington, Delaware), 137 NLRB 1178, 1182,
enfd 331 F.2d 712, 717 (C.A. 3); Enterprise Association of Steam, Hot
Water, etc. (Mechanical Contractors' Association of New York, Inc.),
124 NLRB 521, 527, enfd. as modified 285 F.2d 642, 645 (C.A. 2)
had a contract claim and was therefore lawful pri-
mary conduct. Accordingly, we further, find that
Respondent did not violate Section 8(b)(4)(ii)(B) in
seeking to obtain for its members the work of in-
stalling "end-pocket" piping on the Trane units.7
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 and hereby or-
ders that the Respondent , Pipe Fitters Local No.
120, United Association of Journeymen and Ap-
prentices of the Plumbing and ' Pipe Fitting Industry
of the United States and Canada , AFL-CIO,
Cleveland, Ohio , its officers, agents, and represent-
atives, shall take the action set forth in the Trial
Examiner 's Recommended Order.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges other
violations of Section 8(b)(4)(ii)(B) not found herein.
Member Brown , dissenting in part:
Unlike my colleagues , I would find that the
Respondent did not violate Section 8 (b)(4)(ii)(B) of
the Act in any respect.
As found by the Trial Examiner, and my col-
leagues, Respondent and Wrightco were parties to
a collective-bargaining agreement containing a law-
ful "work protection" clause designed to protect
and preserve work on piping 2 inches and under in
diameter which jobsite pipefitters normally per-
form. It is undisputed that Wrightco had not ad-
hered to this provision . Faced with a prospective
repetition of this , the Respondent reminded
Wrightco of its contractual commitment and ad-
vised that economic pressure would be applied un-
less Wrightco honored the work preservation agree-
ment . At no time did the Respondent threaten,
coerce , or restrain any other employer to force or
require such other employer to cease doing busi-
ness with Wrightco.
On the basis of the foregoing, my colleagues
make a per se finding that the Respondent's demand
had an unlawful object and violated Section
8(b)(4)(ii)(B) of the Act because Wrightco could not
satisfy the Respondent's demand insofar as it en-
5 The Trial Examiner refrained from deciding whether Respondent's ef-
forts to obtain the work of installing "end-pocket" piping was also viola-
tive of Section 8(b)(4)(ii)(B) pending determination of a current jurisdic-
tional dispute case involving the same matter . We do not agree with the
deferral and have accordingly decided this issue on the merits
6 See Fibreboard Paper Products Corp v. N.L.R.B., 379 U.S. 203;
National Woodwork Manufacturers Association v. N.L.R.B., 386 U.S.
612
' National Woodwork Manufacturers Association v. N.L.R .B., supra.
PIPE FITTERS LOCAL NO. 120
compassed cross-over piping. I have pointed out
before8 that such reasoning makes the incidental
factor of control the determinative factor in ascer-
taining the legality of a union objective in a given
case and converts lawful primary activity into
secondary. However, this case also shows that ap-
plication of such a test gives the contracting parties
carte blanche authority to breach their collective
agreements.
Certainly, Congress did not intend this result.
The Congressional purpose in the enactment of
Section 8(b)(4)(ii)(B) was clearly set out by the
Supreme Court in Denver Building and Construc-
tion Trades Council9 as follows:
... the dual congressional objectives of
preserving the right of labor organizations to
bring pressure to bear on offending employers
in primary labor disputes and of shielding unof-
fending employers and others from pressures
in controversies not their own.
My colleague's decison not only destroys a union's
right to exert economic pressure upon the primary
employer but also shields the offending employer
from pressure in a controversy he has created.
In National Woodwork" the Supreme Court,
directing its attention to the Congressional intent of
Section 8(e) of the Act as it relates to the question
of automation and its problems, stated that, "We
cannot lightly impute to Congress an intent in § 8(e)
to preclude labor-management agreements to ease
these effects [loss of work available] through col-
lective bargaining on this most vital problem
created by advanced technology." And yet this
decision comes to the aid of an employer when he
refuses to live up to such an agreement. The Board
is helping to undo what has been done at tie bar-
gaining table.
In view of the foregoing, I would disllliss the
complaint herein in its entirety.
3 See , for example , my dissenting opinion in Ohio Valley arpenters
District Council, United Brotherhood of Carpenters and Joiner ofAmer-
ica, AFL-CIO (Cardinal Industries, Inc.), 144 NLRB 91.
s See N.L.R.B v. Denver Building and Construction TradEs Council
(Gould & Preisner), 341 U.S. 675, 692.
10 See National Woodwork Manufacturers Association v. 'N.L.R.B.,
supra at 642.
TRIAL EXAMINER 'S DECISION
SIDNEY SHERMAN, Trial Examiner: The instant
charges were served upon Respondent on May 6, and
September 24, 1965; the consolidated complaint issued
on February 7, 1966; and hearing was held on May 2, 3,
and 4. After the hearing all counsel filed briefs. i The is-
sues litigated related to alleged violations of Section
8(b)(4)(ii)(B) of the Act.
Upon the entire record2 and my observation of the wit-
nesses, I adopt the following findings and conclusions.
1. THE BUSINESS OF THE EMPLOYERS INVOLVED
993
The Trane Co., hereinafter called Trane, is a Wisconsin
corporation, which is engaged at its plant in La Crosse,
Wisconsin, in the manufacturing, sale, and distribution of
heating and air-conditioning equipment. It annually ships
from Wisconsin to out-of-State points products valued in
excess of $50,000.
The Spohn Corporation, an Ohio corporation, operates
in the Cleveland, Ohio, area as a mechanical contractor
in the building industry. It annually receives directly from
out-of-State points goods valued in excess of $50,000;
and during the year 1965 received directly from out-of-
State points, at its Glenville Senior High School job in
Cleveland, goods valued in excess of $50,000.
Wrightco, Inc., hereinafter called Wrightco, is an Ohio
corporation, which operates in the Cleveland, Ohio, area
as a mechanical contractor in the building industry. It an-
nually receives directly from out-of-State points goods
valued in excess of $50,000, and during 1965 received
directly from out-of-State points, at its John F. Kennedy
High School job in Cleveland, goods valued in excess of
$50,000.
Mechanical Contractors' Association of Cleveland,
Inc., hereinafter called the Association, represents 19
firms,3 including Wrightco and The Spohn Corporation,
which operate in and about Cleveland, Ohio, as mechani-
cal contractors in the building industry.
Trane, Wrightco, and The Spohn Corporation are en-
gaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Pipe Fitters Local No. 120, United Association of
Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada,
AFL-CIO , herein called Respondent , is a labor organiza-
tion under the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The pleadings raise the issue whether Respondent vio-
lated Section 8(b)(4)(ii)(B) of the Act by threatening vari-
ous employers, including Wrightco and Spohn, with
strikes to force them to cease doing business with Trane.
A. Sequence of Events
Respondent has for a number of years had a series of
contracts with the Association, the latest such contract
running from September 1, 1964, to April 30, 1967. Arti-
cle IV thereof provides that piping 2 inches or less in
diameter "shall be fabricated on the jobsite." Wrightco
and The Spohn Corporation, as members of the Associa-
tion , are bound by the foregoing contract. (G.C. Exh. 25.)
On December 30, 1963, Wrightco entered into a con-
tract with the Cleveland Board of Education to install,
i By letter of August 4, 1966, the parties were notified that the Trial
Examiner had decided to modify his ruling at the hearing striking a portion
of Respondent 's answer and afforded the parties an opportunity to file
supplemental briefs with regard to certain matters pertinent thereto. Such
briefs were filed by all parties.
' For corrections of the record see Appendix B attached hereto.
[Appendix B omitted from publication ]
3 The names of the firms are listed in the complaint.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inter alia, heating and cooling unit ventilators, hereinafter
called "units," in the John F. Kennedy High School, and
in July 1964, The Spohn Corporation entered into a
similar contract with regard to the Glenville Senior High
School. Under these contracts, The Spohn Corporation
and Wrightco undertook to install units manufactured by
Trane. Trane's employees are covered by a contract with
the International Association of Machinists.
In January 1965, Respondent's business agent, Din-
gow, visited Wright, an officer of Wrightco, questioned
him about the proposed installation of the Trane units in
the John F. Kennedy High School, and asserted that, if
certain piping pertaining to such units was assembled in
the factory rather than on the job, Wrightco would be in
violation of the Association's contract with Respondent.
There is conflicting testimony, considered below, as to
whether Dingow, in addition, threatened a work stop-
page, unless such piping was assembled on the job. Late
in February, Dingow had a discussion with Spohn, an of-
ficer of The Spohn Corporation, about his firm's
proposed installation of factory-piped units on the Glen-
ville School job, and again took the position, inter alia,
that such installation would violate Respondent's con-
tract. On March 3, at a conference between representa-
tives of the Association and Respondent it was agreed
that part of the piping on the units - described as the "ac-
cessible" end-pocket piping -would be assembled on the
job, and the rest of the piping work would be done at the
factory. The next day, Spohn, who was president of the
Association, proposed to Respondent rescission of the
foregoing agreement, at least until the representatives of
the Association had an opportunity to inspect the unit.
While Respondent would not agree to rescind, its
representatives did meet on March 31, with representa-
tives of the Association in Wrightco's shop, where they
inspected one of the units. However, after such inspec-
tion, Respondent remained firm in its insistence on as-
sembling at least the end-pocket piping. The parties met
again on April 7 to discuss the matter, but Respondent
would not recede from its position. Nevertheless, when
the units were subsequently shipped to the two school
jobs, with all the piping already in place, they were duly
installed by membersof Respondent.
B. Discussion
1. General considerations
Section 8(b)(4)(ii)(B), in substance, forbids unions to
coerce "neutral" or "secondary" employers to cease
doing business, or otherwise modify or disrupt their busi-
ness arrangements, with other employers. It is well set-
tled that a threat of a work stoppage, such as is here al-
leged, constitutes "coercion" within the meaning of that
subsection, and it is not disputed that the Respondent's
objective in its dealings with The Spohn Corporation and
Wrightco early in 1965 was to secure for its members the
work of installing certain piping in the units, which piping
Spohn Corporation and Wrightco had allegedly already
arranged to have installed by Trane.
4 United Association Pipe Fitters Local Union No 539 (Mechanical
Contractors Association), 154 NLRB 314, S & E McCormick, Inc, 159
NLRB 84, and cases there cited.
5 The "external" piping consisted of the existing piping in the building
to which the units were to be connected.
Respondent defends on the ground that (1) it did not
threaten a work stoppage, but attempted to achieve its ob-
ject only by lawful persuasion, and (2) in any event, it was
merely seeking to enforce a work protection agreement
with The Spohn Corporation and Wrightco. The latter
defense will be first considered.
2. The work protection clause
It is well settled that a union does not violate Section
8(b)(4)(B), if its object is to enforce an agreement
designed to preserve or reacquire for a particular bargain-
ing unit all work historically done, or "fairly claimable,"
by members of the unit, and which is subject to assign-
ment by the employer.4
Here, as already related, the parties' contract-required
that all piping of the diameter here involved be fabricated
on the job. However, at the hearing Respondent
acknowledged that the foregoing clause did not apply to
the "cross-over" piping in the units, and limited its claim
to the "end-pocket" piping. To understand this distinc-
tion, it may be well to explain briefly the structure of the
units.
They were designed to be installed in the rooms of a
building, and there connected to central heating and air-
conditioning systems. They served a triple function of
heating, cooling, and ventilating a room. The so-called
"internal" piping5 in the units consisted of (1) cross-over
piping and (2) end-pocket piping. The cross-over piping
in the units involved extended across the rear of the unit,
from one end to the other, and, except as noted below,
contained a large "expansion loop," shaped in the form of
an inverted U, to allow for expansion and contraction in
the entire system. The end-pocket piping here in issue
was confined to a small chamber or "end pocket" at one
end of the unit, and contained, inter alia, supply and
return lines, and in a few of the units the expansion loop
was located in the end pocket rather than in the cross-
over piping along the rear of the unit. It was Trane's usual
practice to install both the cross-over and end-pocket pip-
ing at its factory.6 However, the internal diameter of all
such piping was 2 inches or less, and, as already related,
article IV of the Respondent's contract provided for
jobsite fabrication of all piping of that size. Yet, as noted
above, Respondent conceded at the hearing that it did not
deem the "work protection" clause in its contract to
apply to cross-over piping, but only to end-pocket piping.
The reason for this distinction appears to be (1) that
Respondent construed its contract clause restrictively as
applying only to work which was subject to the control of,
and assignable by, the employing contractor, and (2)
Respondent conceded that the installation of the cross-
over piping was not assignable by The Spohn Corpora-
tion or Wrightco to their pipefitters, because, under the
school board's specifications, such piping was required to
be installed at the factory, but (3) Respondent contended
that there was no similar requirement as to the end-
pocket piping, so that The Spohn Corporation and
6 The extent and nature of any deviations from this practice need not be
determined at this time.
PIPE FITTERS LOCAL NO. 120 995
Wrightco were free to assign the installation of such pip-
ing to their pipefitters.7
Thus, Respondent asserts its "work protection"
defense only with respect to its efforts to obtain the work
involving the end-pocket piping, and raises no such
defense with respect to its alleged attempt to obtain the
work relating to the cross-over piping. The General
Counsel, on the other hand, contends that such defense
is not available even with respect to the end-pocket pip-
ing.
3. The threats
ready contracted to have the cross-over piping installed
by Trane, it was, at the very least, an object of Dingow's
threat to force Wrightco to cancel its order for the instal-
lation of such piping, and to that extent to force Wrightco
to cease doing business with Trane. As it is well settled
that such a threat as that related above constitutes coer-
cion within the meaning of Section 8(b)(4)(ii)(B), it is
found that Respondent thereby violated that subsection
of the Act. This finding obviates the need to resolve con-
flicting testimony as to whether Respondent on sub-
sequent occasions threatened a work stoppage to enforce
its claim to the cross-over piping.
a. As to the cross-over piping
There was considerable testimony at the hearing as to
whether on various occasions early in 1965 Respondent
threatened Wrightco and The Spohn Corporation, among
others, with a work stoppage , if Respondent 's members
were not allowed , inter alia, to install the cross-over pip-
ing in the instant units. The General Counsel contends,
and, as noted above, Respondent , in effect , concedes,
that , as to the cross-over piping, such a threat would vio-
late Section 8(b)(4)(ii)(B) of the Act.
As to the first of these incidents , it was agreed that late
in January 1965 , Respondent 's agent, Dingow , visited
Wright, an officer of Wrightco , to verify information
received by Dingow that Trane was to furnish the instant
units "prepiped" to Wrightco . Their testimony was in
conflict , however , as to whether Dingow demanded that
all such work, or only the end-pocket piping, be assigned
to Respondent' s members , and whether Dingow
threatened a work stoppage to enforce such demand.
Wright's version was that Dingow warned him that, if any
of the piping in the units was installed by Trane, Respond-
ent's members would not connect the units at the
jobsite. Dingow , on the other hand, insisted that he mere-
ly took the position that Wright would be violating the
Association 's contract with Respondent , if the end-
pocket piping was installed at the factory , and that he
made no claim to the cross-over piping. He further denied
that he threatened that Respondent's members would not
handle the units . However, I was not favorably impressed
by Dingow 's demeanor or , candor. Moreover , his dis-
claimer of any demand for the cross-over piping on that
occasion was marred by equivocation and self-contr-
adiction.8
In view of this , I credit Wright and find that at their
meeting in January Dingow threatened that Respondent's
members would not handle the units if any of the internal
piping, including the cross-over piping , was installed at
the factory . Since it is undisputed that Wrightco had al-
7 Moreover, Respondent contended that on and after March 3, its
foregoing contractual claim to the end-pocket piping work was reinforced
by the March 3 settlement, which, as related above, provided for the in-
stallation by Respondent's members of the end-pocket piping in the units
here involved.
(Contrary to the contention of Trane and the Association, I do not con-
strue certain remarks by Respondent's counsel at the hearing as an admis-
sion that Respondent was basing its claim to the end-pocket piping solely
on the March 3 settlement and was disclaiming any reliance on the fabn-
cation clause in the Association contract. It appears that Respondent's
position at the hearing, as amplified by its brief, was that such disclaimer
applied only to the cross-over piping.)
8 He testified initially that he told Wright that Respondent's contract
would be breached if the units were "prepiped." He later insisted that in
b. As to the end-pocket piping
There remains, however, the question whether, as the
General Counsel contends, Respondent also violated
Section 8(b)(4)(ii)(B), by threatening a work stoppage to
enforce its admitted claim to the end-pocket piping (a) be-
fore the March 3 settlement expressly assigned such pip-
ing to Respondent's members, and (b) after that settle-
ment was effected. As already noted, it is Respondent's
position that before the settlement agreement its mem-
bers were entitled to such work under the "work protec-
tion" clause of Respondent's contract with the Associa-
tion, and that after March 3, Respondent's claim to such
work had the additional support of the settlement agree-
ment. The General Counsel, on the other hand, contends,
inter alia, that the "work protection clause" doctrine can-
not aid Respondent here, because that doctrine applies
only where such a clause is designed to preserve or
reacquire for the members of the bargaining unit work
traditionally performed, or fairly claimable, by them, and
that this was not true here. While this question was
litigated before me to a limited extent, it is also currently
before the Board in a proceeding under Section 10(k) of
the Act involving the same parties," and the Board will
there have opportunity to determine, upon a more
complete record, whether employees represented by
Respondent have traditionally performed work compara-
ble to that of the end-pocket piping here involved or are
otherwise entitled to claim such work.10
In view of this, it would seem that the interest of or-
derly administration of the Act would be better served, if
any finding as to alleged additional violations of Section
8(b)(4)(ii)(B) of the Act based on Respondent's claim to
the end-pocket piping are deferred until final disposition
of the proceeding under Section 10(k). Any party may at
that time move for the issuance of a supplementary deci-
sion by me to resolve the question thus reserved.
this conversation he referred only to the end-pocket piping, and was not
then claiming the cross-over piping , but he gave apparently conflicting an-
swers when asked whether on that occasion he discussed the cross-over
piping at all with Wright.
Cases 8-CD-53, 54, 55, 62, 69, and 70.
10 Some evidence was adduced before me that Respondent's members
have assembled end-pocket piping in heating units of manufacturers other
than Trane and in a Trane unit of a different type from that here involved.
There was also testimony that it would be feasible for Respondent's mem-
bers to do such work on the instant units. However , it would seem that a
resolution of the issues raised by such testimony may more appropriately
be made after the Board 's decision in the 10 (k) proceeding.
336-845 0 - 70 - 64
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth above, occurring
in connection with the operations of Trane and Wrightco,
as set forth in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce,
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 , it will be recommended that the
Respondent be ordered to cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act."
CONCLUSIONS OF LAW
1. The Trane Co., and Wrightco, Inc., are engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act, and Wrightco, Inc., is a person engaged in an in-
dustry affecting commerce within the meaning of Sec-
tions 8 (b)(4) and 501(1) of the Act.
2. By threatening Wrightco that its members would
not install for Wrightco certain heating and cooling unit
ventilators, if the cross-over piping on such units was at-
tached thereto by Trane, Respondent coerced Wrightco,
with an object of forcing it to cease contracting with
Trane for the attachment of such piping to such units. By
such conduct Respondent violated Section 8(b)(4)(ii)(B)
of the Act.
RECOMMENDED ORDER
Upon the entire record and the foregoing findings of
fact and conclusions of law, and pursuant to Section 10(c)
of the Act, it is recommended that Respondent, Pipe Fit-
ters Local No. 120, United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Indus-
try of the United States and Canada, AFL-CIO, its of-
ficers, agents, successors , and assigns , shall be required
to:
1. Cease and desist from coercing or restraining
Wrightco, Inc., or any other persons engaged in com-
merce or in an industry affecting commerce, with an ob-
ject of forcing or requiring Wrightco, Inc., or such other
persons to cease, or refrain from, contracting with The
Trane Co., for the furnishing by it of heating and cooling
unit ventilators with factory-installed cross-over piping.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post in conspicuous places in the Respondent's
business offices, meeting halls, and all places where
notices to its members are customarily posted, copies of
the attached notice marked "Appendix A."12 Copies of
said notice, to be furnished by the Regional Director for
Region 8 , after being duly signed by Respondent's official
representatives shall be posted by the Respondent im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Mail to the Regional Director for Region 8 signed
copies of the aforementioned notice for posting by The
Trane Co., by Wrightco, Inc., and by all other members
of Mechanical Contractors' Association of Cleveland,
Inc., they being willing, in places where notices to their
employees are customarily posted. Copies of said notice,
to be furnished by the Regional Director for Region 8,
shall, after being signed by the Respondent, as indicated
above, be forthwith returned to the Regional Director for
disposition by him.
(c) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.13
As respondent's agent, Dingow, in threatening Wright, purported to
be acting pursuant to the terms of the Association contract, it will be
recommended that the notice provided for in the Recommended Order be
made available for posting by all members of the Association.
' 2 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
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."
13 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 Respond-
ent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL OUR MEMBERS, AND TO ALL EM-
PLOYEES OF THE TRANE CO., WRIGHTCO, INC., AND TO
ALL OTHER MEMBERS OF MECHANICAL CONTRAC-
TORS ASSOCIATION OF CLEVELAND, INC.
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 coerce or restrain Wrightco, Inc., or
any other person, with an object of forcing or requir-
ing Wrightco, Inc., or any other person to cease, or
refrain from, contracting with The Trane Co., for
furnishing by it of heating and cooling unit ventilators
with factory-installed cross-over piping.
PIPE FITTERS LOCAL No.
120, UNITED ASSOCIATION
OF JOURNEYMEN AND AP-
PRENTICES OF THE PLUMB-
ING AND PIPE FITTING IN-
DUSTRY OF THE UNITED
STATES AND CANADA,
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, 720 Bulkley
Building, 1501 Euclid Avenue, Cleveland, Ohio 44115,
Telephone 621-4465, Extension 42.