Sheet Metal Workers Int'l Assn., AFL-CIO, Etc.

National Labor Relations Board - Board Decisions

Jun 30, 1960

127 N.L.R.B. 1629 (N.L.R.B. 1960)

SHEET METAL WORKERS INT'L ASSN., AFL-CIO, ETC. 1629
CONCLUSIONS OF LAW
1. The Respondent , Mineweld Company, Division of Rasco , Inc., is engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint within the meaning of Section 8 (a) (3) and (1) of the Act.
[Recommendations omitted from publication.]
Sheet Metal Workers International Association , AFL-CIO, and
Robert Byron , Its General President , and Edward F. Carlough,
Its General Secretary -Treasurer, and Alfred J. Mosher, Its
International Representative ; Local No. 70, Sheet Metal Work-
ers International Association , AFL-CIO, and W. O. Frost, Its
Business Manager , and Lloyd Kenney , Its Recording Secre-
tary, and Robert J. Kidney, Its Business Agent; Local No. 65,
Sheet Metal Workers International Association , AFL-CIO,
and Clarence Desch, Its Business Agent, and J. R. Dietz, Its
Financial Secretary and Treasurer , and Alton Page, Its Busi-
ness Agent; and Local No. 98 , Sheet Metal Workers Inter-
national Association , AFL-CIO, and Ross A . Boggs, Its Busi-
ness Agent , and Clifton Deangulo, Its Assistant Business
Agent ; and Local No. 58, Sheet Metal Workers International
Association , AFL-CIO, and Edward M. Hickey, Its Business
Agent and The Burt Manufacturing Company. Case No.
8-CC-68. June 30, 1960
DECISION AND ORDER
On February 13, 1959, Trial Examiner William F, Scharnikow
issued his Intermediate Report in the above-entitled proceeding, find-
ing that certain Respondents had engaged in and were engaging in
certain unfair labor practices and recommending that they cease and
desist therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report, attached hereto. The Trial Ex-
aminer further found that the remaining allegations of the complaint
were not supported by the evidence and should be dismissed. There-
after, exceptions were filed by the Locals, the International, the
General Counsel, and Burt; and briefs were filed by the Locals, the
International, and the General Counsel. Pursuant to special leave of
the Board, further briefs were filed by the International, the Locals,
the General Counsel, and Burt with respect to the impact on this case
of Section 8(e) of the Landrum-Griffin Act.
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 Inter-
127 NLRB No. 182.
1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediate Report, the exceptions and briefs, and the entire record in the
case,l and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the following modifications.
1. We agree with the Trial Examiner's conclusion that by unlawful
secondary action Locals 70 and 65 put into effect the International's
policy against installing sheet metal products manufactured by Burt,
and that an object was forcing or requiring other employers and
persons to cease using or handling Burt products and to cease doing
business with Burt. The unlawful secondary action consisted of
inducing and encouraging employees of certain sheet metal contractors
to refuse to install Burt products.
The principal defense of Local 70 is that it induced or encouraged
but a single employee, whereas the Taft-Hartley Act, under which the
unfair labor practice occurred, only prohibits inducing or encouraging
"employees" to engage in a strike or "concerted" refusal to work.
However, the employee was a union member, and as such was obligated
to promote the International's policy; the demand was made at the job
where he was working; the work was customarily done by two or more
employees, and the demand was obviously intended to be transmitted
to all other employees who might be called on to install Burt products.
Moreover, the demand cannot be regarded as an isolated incident, as
indicated by the conduct of its sister local 65 herein, but was clearly
part of a concerted boycott plan devised and promulgated by the
International.2
The principal defense of Local 65 is that it appealed only to a super-
visor or nonemployee, Albert, whereas the Taft-Hartley Act pro-
hibits appeals only to employees. However, Albert was also a union
member and thus a highly effective conduit, if not an outright agent,
for transmitting the International's boycott policy, and the Local's
express boycott order, to the several employees under him. More-
over, Albert expressly admitted that he transmitted the Local's boycott
order to the employees because of the policy of "our organization"
and because "we are union members."
The International, in effect, concedes that its policy was against
installing products manufactured by employers not under contract
with it, and its principal defense is that it forbade its Locals to effec-
tuate compliance with this boycott policy by secondary action. As
the Trial Examiner found, however, the International cannot thus
escape responsibility for the conduct of its agents within the scope of
their authority.
i The request of the Locals and the International for oral argument is hereby denied
on the ground that the record adequately presents their positions
2In finding no merit in Local 70's defense, Chairman Leedom relies only on the fact
that Local 70's conduct was part of a concerted boycott plan.
SHEET METAL WORKERS INT'L ASSN., AFL-CIO, ETC. 1631
On the entire record we find, as did the Trial Examiner, that the
International and Locals 70 and 65 thereby violated Section
8(b) (4) (A) of the Act.
2. We do not agree with the Trial Examiner's conclusion that the
complaint against the International and Locals 70 and 65 should be
dismissed with respect to the Section 8 (b) (4) (B) and (C) allegations.
The evidence satisfies us that the Respondents, by the foregoing viola-
tions of Section 8 (b) (4) (A), alsohad an object of forcing or requiring
Burt to recognize and bargain with Local 70, although that labor
organization had not been certified as the representative of Burt's
employees, and although another labor organization was so certified.
The Trial Examiner, in substance, found that the Respondent had
these unlawful objects, but read the Act as permitting such objectives
because recognition was sought at some future time, when Burt's con-
tract with the Steelworkers expired, rather than immediately.'
The principal argument of the General Counsel and Burt is that the
Act contains no such language as would warrant the Trial Examiner's
reading of it. We agree. Indeed, the Trial Examiner cited no sup-
porting provisions in the Act or its legislative history, and in addition
he found that the Respondents were presently violating the employees'
freedom of choice, allegedly protected by Section 8(b) (1) (A), by
pressing for the same "future" recognition.
On the entire record we find, contrary to the Trial Examiner, that
the International and Locals 70 and 65 also violated Section
8(b) (4) (B) and (C) of the Act.
3. We likewise do not agree with the Trial Examiner's conclusion
that the complaint against the International and Locals 70, 65, and 98
should be dismissed with respect to the Section 8(b) (2) allegations
involving Burt's employees. The record clearly establishes, in our
view, that Local 70 was not the statutory representative of Burt's em-
ployees; that the named Respondents nevertheless attempted to cause
Burt to sign the standard union-security agreement and thus dis-
criminate unlawfully against its employees ; that they did so by
appealing both to various sheet metal contractors and in some instances
to the contractors' employees to refuse to install Burt products; and
that they proposed to discontinue this boycott only if and when Burt
signed the standard agreement. As with the Section 8(b) (4) (B)
and (C) allegations discussed above, however, the Trial Examiner
read the Act as permitting these attempts to cause Burt to discriminate
unlawfully against its employees, because the proposed discrimina-
tion was to take place at a future time, when Burt's contract with the
Steelworkers expired, rather than immediately. Our disagreement
a The Respondents do not seriously contest these objects ; their brief argues, rather,
that recognition by Burt was not "primarily" their object, although they do not dispute
that it was the only way for Burt to terminate the boycott.
1632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Trial Examiner 's misreading of the Act is based on reasoning
already set forth above.
The Respondents ' principal defense is that their reason for boy-
cotting Burt products was the legitimate one of preserving work
opportunities for the sheet metal contractors ' employees whom they
represented , and that their boycott did not lose legitimacy because of
the incidental effect on Burt's employees in exercising their statutory
right not to join or designate Local 70.4 However , the record satisfies
us not only that the Respondents could foresee the unlawful pressure
that would thereby be applied on Burt's employees , but that they ac-
tively sought to have Burt require its employees to join Respondents
as a means of increasing their stranglehold on the sheet metal industry.
The Act does not require that the unlawful aim be the sole or even
the primary object. It is enough if it be merely "an" object, as it
clearly was in this case . We therefore find no merit in this defense.'
Accordingly, we find, contrary to the Trial Examiner , that the
International and Locals 70, 65, and 98 violated Section 8 (b) (2) by
attempting to cause Burt to discriminate against its employees in
violation of Section 8 (a) (3) of the Act.
As for remedying this violation, we do not interpret the new con-
struction -industry proviso to Section 8 ( e) as permitting the type of
arrangement which we have found violated Section 8(b) (2). Section
8 (e) in general bans the making or enforcement of so-called hot-cargo
arrangements ; the proviso to 8(e) exempts such arrangements with
4In this connection, we note the case of Ii' L Rives Company, 125 NLRB 772, where
the Sheet Metal Workers complained (and the Board found) that the company involved,
a manufacturer of sheet metal and plumbing products, violated Section 8(a) (1) and (3)
by transferring certain work from the Sheet Metal Workers' unit to a subcontractor under
contract wilIi the 1'lumbets, because company customers wanted the Plumbers label
s Member Bean, dissenting on this point, would dismiss the 8(b) (2) allegations because,
in his view, the Respondents' policy against installing Burt products was a legitimate
implementation of their collective-bargaining obligation towaid the sheet metal contractors'
employees who had selected them as their collective-bargaining representative As appears
from Northern California Chapter, Associated General Contractors, et at, 119 NLRB 1026,
enfd 266 l+ 2d 905 (C.A, D C ), he would find that the Act cannot be interpreted to
encourage collective bargaining for the mutual aid and protection of the sheet metal con-
tractors' employees, yet at the same time to prohibit them from seeking or enforcing an
agreement with their employer against dissipating their work by subcontracting it to
other employers.
Member Panning did not participate in the Associated General Contractors case How-
ever, for the reasons expressed in his dissenting opinion in 117and Corporation, 122 NLRB
499, 502, he would not find a violation of Section 8(b)(2) in this case He, therefore,
deems it unnecessary to pass upon the impact of the recently enacted Section 8(e) on the
remedial order herein.
However, a majority of the Board finds that the Associated General Contractors case is
not here applicable Members Rodgers and Jenkins think the case wrong as a matter
of law.
Contrary to the dissent, Chairman Leedom believes that the portion of the Associated
General Contractors decision in winch he joined to find a violation supports the conclusion
here that the indirect pressure against Burt for the purpose of forcing Burt to sign the
standard union -security agreement constituted an unlawful attempt to cause Burt to dis-
criminate against its employees, and therefore a violation of Section 8(b) (2). See
Associated General Contractors , supra, at p . 1029, footnote 3, pp. 1032-1033, and p 1040
footnote 24.
SHEET METAL WORKERS INT'L ASSN., AFL-CIO, ETC. 1633
"an employer in the construction industry relating to the contracting
or subcontracting of work to be done at the site of the construc-
tion. . . ." The legislative history shows, however, that the proviso
was not intended to affect the law developed under Section 8(b) (4),
or to permit boycotts of goods manufactured in an industrial plant
for installation at the j obsite.s We shall therefore issue our customary
order for remedying the 8 (b) (2) violations found.'
4. For the reasons set forth in District 76, Retail, Wholesale and
Department Store Union, AFL-CIO (Chandler's Philadelphia Shoe
Store, Inc.), 127 NLRB 254, we shall dismiss the Trial Examiner's
finding that any of the Respondents violated Section 8(b) (1) (A) of
the Act by their indirect economic pressure on Burt's employees.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Sheet Metal
Workers International Association, AFL-CIO, its Locals Nos. 70 and
65, and their respective officers, agents, (including but not limited to
the Respondents Lloyd Kenney and Clarence Desch), successors, and
assigns, shall cease and desist from engaging in, or inducing or encour-
aging the employees of any employer other than The Burt Manufac-
turing Company to engage in, a strike or a concerted refusal in the
course of their employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles, materials, or
commodities, or to perform any services, where an object thereof is
(A) forcing or requiring any employer or other person to cease using,
selling, handling, transporting, or otherwise dealing in the products
of, or to cease doing business with, The Burt Manufacturing Company,
(B) forcing or requiring The Burt Manufacturing Company to recog-
nize or bargain with any of the Respondents as the representative of
its employees unless such labor organization has been certified as the
representative of such employees under the provisions of Section 9, or
(C) forcing or requiring The Burt Manufacturing Company to rec-
ognize or bargain with any of the Respondents as the representative
of its employees while the United Steelworkers of America, AFL-
CIO, is the certified representative of such employees under the pro-
visions of Section 9.
° 105 Daily Congressional Record 16415; Legislative History of the Labor-Management
Reporting and Disclosure Act of 1959, published by the NLRB, page 1433, H. Cont Rept.
No. 1147, 86th Cong, 1st sess , p. 39
7 We find no merit in the General Counsel's argument for broadening the sweep of our
8(b) (2) orders to cover other sheet metal manufacturers beside Burt, in view of the re-
stricted allegations of the amended complaint and the fact that the case was litigated
almost entirely on the theory that the Respondents ' pressure was directed at Burt.
1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Respondents Sheet Metal Workers International Association,
AFL-CIO, its Locals Nos. 70, 65, and 98, and their respective officers,
agents , successors , and assigns, shall cease and desist from causing or
attempting to cause The Burt Manufacturing Company to discrimi-
nate against any of its employees in violation of Section 8(a) (3) of
the Act.
3. The above-named Respondents take the following affirmative
action which the Board finds will effectuate the policies of the Act :
(a) Post, at all places where notices to members are customarily
posted, copies of the appropriate notices attached hereto marked
"Appendix." 8 Copies of said notice, to be furnished by the Regional
Director for the Eighth Region, shall, after being duly signed, be
posted immediately upon receipt thereof and be maintained for a
period of 60 consecutive days thereafter, in conspicuous places. Rea-
sonable steps shall be taken to insure that said notices are not altered,
defaced, or covered by any other material. Each respective Respond-
ent shall also sign copies of the notice, to be furnished by the Regional
Director, for posting at the premises of The Burt Manufacturing
Company. The International shall also publish a copy of the signed
notice in its "Journal."
(b) Notify the Regional Director for the Eighth Region, in writ-
ing, within 10 days from the date of this Order, what steps have been
taken to comply herewith.
IT Is FURTHER ORDERED that in all other respects the complaint be,
and it hereby is, dismissed.
8In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL MEMBERS AND TO ALL EMPLOYEES OF
THE BURT MANUFACTURING COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT engage in, or induce or encourage the employees
of any employer other than The Burt Manufacturing Company to
engage in, a strike or a concerted refusal in the course of their
employment to use, manufacture, process, transport, or other-
wise handle or work on any goods, articles, materials, or com-
modities, or to perform any 'services, where an object thereof is
(A) forcing or requiring any employer or other person to cease
using, selling, handling, transporting, or otherwise dealing in the
products of, or to cease doing business with, The Burt Manu-
SHEET METAL WORKERS INT'L ASSN., AFL-CIO, ETC. 1635
facturing Company; (B) forcing or requiring The Burt Manu-
facturing Company to recognize or bargain with us as the
representative of its employees unless certified as the representa-
tive of such employees under the provisions of Section 9; or (C)
forcing or requiring the Burt Manufacturing Company to recog-
nize or bargain with us as the representative of its employees
while United Steelworkers of America, AFL-CIO, is certified as
such representative under the provisions of Section 9.
WE WILL NOT cause or attempt to cause The Burt Manufactur-
ing Company to discriminate against any of its employees in
violation of Section 8(a) (3) of the Act.
SHEET METAL WORKERS INTERNATIONAL ASSOCIATION,
AFL-CIO, AND LOCALS Nos. 70 AND 65,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,,
and must not be altered, defaced, or covered by any other material.
APPENDIX
NOTICE TO ALL MEMBERS AND TO ALL EMPLOYEES OF
THE BURT MANUFACTURING COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT cause or attempt to cause The Burt Manufactur-
ing Company to discriminate against any of its employees in
violation of Section 8 (a) (3) of the Act.
SHEET METAL WORKERS INTERNATIONAL ASSOCIATION,
AFL-CIO, LOCAL No. 98,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint as amended at the hearing alleges, but the answers of the Re-
spondents deny, the Respondents have committed unfair labor practices affecting
commerce within the meaning of Section 8(b)(1)(A) and (4)(A), (B), and (C),
and Section 2(6) and ( 7) of the National Labor Relations Act, in that, for
objectives proscribed under these sections of the Act, they effected , or attempted
to effect, a boycott of the sheet metal products of the Burt Manufacturing Corn-
560940-61-vol. 12 7-10 5
1636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany of Akron, Ohio, by various sheet metal contractors or installers, and the
employees of some of these contractors.'
With respect to unfair labor practices, the complaint, as amended, alleges in
substance that:
(1) In 1945, United Steelworkers of America, AFL-CIO (a labor organization
herein called the Steelworkers), was certified by the National Labor Relations
Board as the bargaining representative of the production and maintenance employees
of Burt following an election conducted by the Board, and has since then con-
tinuously maintained a contractual collective-bargaining relationship with Burt.
'(2) Since 1945, neither the Respondent International nor any of its Locals has
X;epresented a majority of Burt's employees in the certified unit or in any other
appropriate unit.
(3) Since 1945, the Respondents have "continuously" demanded that Burt recog-
nize and bargain with Respondent International and/or one of its Locals, and
execute a "Standard Form of Union Agreement" containing various union-security
provisions including a provision requiring membership in the Respondent Interna-
tional or one of its Locals as a condition of employment.
(4) Since 1945 the Respondents, pursuing a common policy and course of action,
have prevented or attempted to prevent the installation of Burt's products by
various sheet metal contractors, by coercive pressures upon these sheet metal con-
tractors themselves, and, in some instances, also by inducing and encouraging
employees of some of these sheet metal contractors to engage in strikes or con-
certed refusals in the course of their employment, to use, handle, work upon, or
install Burt's products.
(5) The objects of the Respondents' conduct have been
(a) To force or require the sheet metal contractors to cease using, handling,
installing, purchasing, or otherwise dealing in Burt's products, and to cease doing
business with Burt.
(b) To force or require Burt to recognize or bargain with the Respondent Inter-
national or one of its Locals as the representative of Burt's employees.
(c) To force or require Burt's employees to become members of Respondent
International or one of its Locals.
(d) To force or require Burt to compel its employees to become members of the
-Respondent International or one of its Locals.
(e) To force or require Burt to execute the "Standard Form of Union Agreement."
(6) In view of these objects and in incidents which have occurred since Decem-
iber 5, 1956,2 the Respondents' inducement or encouragement of sheet metal con-
tractors' employees to engage in strikes or concerted refusals to perform services
with respect to the installation of Burt's products, has constituted an unfair labor
practice within the meaning of Section 8(b)(1) (A) and (4)(A), (B), and (C) of
,the Act.
(7) In view of the Respondents' objectives and under the circumstances of the
,case, the Respondents' coercive pressure directly upon the sheet metal contractors
themselves in incidents which have occurred since December 5, 1956, has con-
stituted an unfair labor practice within the meaning of Section 8(b)(1)(A) and (2)
.of the Act.
Following the issuance of the complaint on December 16, 1957, the Respondent
Locals and the Respondents named in the complaint as their agents filed a motion
,to strike certain allegations of the complaint. This motion was denied by Trial
Examiner David London on January 8, 1958. On the same date, Trial Examiner
London denied a motion made by the Respondent International and its named agents
.for a more definite statement of certaiii allegations of the complaint. On January
21, 1958, however, Trial Examiner London granted in part, and denied in part, a
motion made by the Respondent Locals for a more definite statement with respect
.to various allegations of the complaint. Pursuant to this order, the General Counsel
•filed and served a bill of particulars on January 24, 1958.
Each of the Respondents filed its answer to the complaint and, upon the amend-
ment of the complaint at the hearing, was permitted orally to deny the allegations
I The term "boycott" is used in this report not in any technical, restricted sense nor
as referring necessarily to the situation resulting from a violation of Section 8(b) (4),
but rather (for want of any other convenient term) generally to describe refusals of sheet
metal contractors to handle Burt's products.
2 The original charges were filed and served on June 5, 1957. The 6-month limitation
pf Section 10(b) of the Act therefore precludes any finding of unfair labor practice before
-December 5, 1956.
SHEET METAL WORKERS INT'L ASSN. AFL-CIO, ETC. 1637
of the amendments, upon the record and in lieu of written answer. The Respondents'
answers admit some of the allegations of the complaint, profess no knowledge as
to the truth of other allegations, and deny all allegations concerning their acts and
,objectives which assertedly comprise the unfair labor practices. The Respondents'
answers constitute a general denial of the allegations of the complaint concerning
unfair labor practices. In addition, the answers filed on behalf of the Respondent
Locals and their named agents set forth separate defenses challenging the sufficiency
,of the charges to support the complaint, the alleged improper consolidations of
multiple charges in a single complaint, and the alleged failure of the General
Counsel to set forth in the complaint a plain statement of the claim and relief
sought against each Respondent as required by the Rules of Civil Procedure and
the Rules of the Board.
Pursuant to notice, a hearing was held in Cleveland, Ohio, from April 21, 1958,
to and including May 9, 1958, before the Trial Examiner duly designated by the
Chief Trial Examiner. The General Counsel, Burt, and the Respondents appeared
by counsel and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues .3
At the close of the General Counsel's case, counsel for the Respondent Locals
moved to dismiss, for want of proof, the allegations of the complaint that the
Respondents, collectively or singularly, attempted to restrain or coerce Burt's em-
ployees for the purpose of forcing or requiring Burt to recognize any of the Re-
spondents for collective bargaining. Also asserting a lack of proof, counsel for the
Respondent International moved to dismiss the allegations of the complaint that
the Respondent International and/or its agents were responsible for any acts which
may have been committed by the Respondent Locals or its agents. The Trial Ex-
aminer denied the broad motions for dismissal thus made by Respondents' counsel.
At this point in the hearing, however, the Trial Examiner did grant three other
motions made by counsel for the Respondent Locals that certain allegations of
specific paragraphs of the complaint be struck or dismissed for want of proof. Ac-
cordingly, the Trial Examiner struck allegations of the complaint to the effect that
(1) In May 1957, Local 58 and its agent, Edward M. Hickey, induced and encour-
aged employees of Valcar Sheet Metal Corporation to strike or concertedly refuse
to use, handle, work on, or install Burt's products; (2) in February 1957, Local 65
and its agent, Clarence Desch, informed Home and Industrial Heating Company
that it should not use Burt's products because Burt did not recognize Respondent
International or any of its Locals and was not on the Respondents "fair list" of
manufacturers; (3) in about October 1957, Local 65 and its agent, Clarence Desch,
induced and encouraged employees of Franck & Frick Company to engage in a
strike or refusal to use, handle, work on, or install Burt's products; and (4) the
Respondents committed unfair labor practices in, or in connection with, these three
alleged incidents .4
Since the close of the hearing, the Trial Examiner has received briefs from each
,of the parties.
Upon the entire record in the case and from his observation of the witnesses, the
Trial Examiner makes the following:
' During the course of the hearing, counsel for the Respondent Locals requested the
production of a pretrial affidavit given by the witness, W. 0 Smith, to the General
Counsel Upon the General Counsel's refusing to produce the affidavit, counsel for the
Respondent requested, and the Trial Examiner refused, a direction that the affidavit be
produced On September 17, 1958, upon the intervening authority of the Board's decision
in Ra-Rich Manufacturing Corporation, 121 NLRB 700, the Trial Examiner issued an
order directing the General Counsel to permit the Respondents' counsel to examine the
affidavit, and also granting lease to the Respondents to apply for further hearing for the
purpose of examining Dlr. Smith on the basis of his affidavit On September 24, 1958,
counsel for all parties entered into a stipulation by which they submitted a copy of the
affidavit of Mr Smith and agreed that it be admitted in evidence as his testimony, given
as on further cross-examination in lieu of reopening the hearing Pursuant to the stipu-
lation, the Trial Examiner admits the copy of the affidavit in evidence, and has marked
and received .the stipulation and the copy of affidavit as Trial Examiner's Exhibit No. 1
4 When these motions were made, the General Counsel and counsel for Burt opposed
only the dismissal from the complaint of those allegations asserting and referring to
Local 65's and Desch's inducement and encouragement of Franck and Frick Company's
employees.
1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE BURT MANUFACTURING COMPANY
The Burt Manufacturing Company is engaged in the manufacture of roof ventila-
tors and wall louver equipment, fabricated from sheet metal, generally 10-gauge and
lighter. It annually ships from its plant in Akron, Ohio, to points outside the State
of Ohio, finished products of a value of more than $1,000,000. Burt does not itself
directly engage in erection or installation. It sales and deliveries are ordinarily made
either to the sheet metal contractors who install the equipment, or to general
contractors, mechanical contractors, or industrial owners, who subcontract the in-
stallation to sheet metal contractors. Although at the request of an industrial owner
or mechanical subcontractor Burt will sometimes take a contract for the supply and
erection of its equipment, in such a case it invariably subcontracts the erection to a
sheet metal contractor which has a contract with the Sheet Metal Workers' Interna-
tional Association.
The Trial Examiner finds that The Burt Manufacturing Company is engaged in a
business affecting commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED, THE CERTIFICATION OF THE STEEL-
WORKERS, AND THE RESPONDENTS' STANDARD FORM OF UNION AGREEMENT
Sheet Metal Workers' International Association, AFL-CIO, and its Locals Nos.
70, 65, 98, and 58, and also the United Steelworkers of America, AFL-CIO, and its
Local No. 1159, are labor organizations within the meaning of Section 2(5) of the
Act. Before the merger of the AFL and the CIO on December 5, 1955, the
Respondents Sheet Metal Workers' International Association and its Locals were
affiliated with the AFL and the United Steelworkers of America and its Local
No. 1159 were affiliated with the CIO.
On October 29, 1945, United Steelworkers of America, CIO, was duly certified
by the Board as the exclusive representative of Burt's production and maintenance
employees, within the meaning of Section 9 of the Act. Since that time, it has been
continuously recognized by Burt as such representative and (except for the period
of a strike on bargaining issues from August 23 to September 7, 1954) has held an
uninterrupted series of contracts with Burt covering the working terms and condi-
tions of Burt's employees. Local No. 1159 is the Steelworkers' Local in which
Burt's employees are, and have been, members, and will be referred to as the
Steelworkers' Local.
Each of the Respondent Locals affiliated with the Sheet Metal Workers' Interna-
tional Association has its office in, and operates within, a geographical area or region
allocated to it by its charter from the International. Local 70 whose office is in
Akron, Ohio, is the only Sheet Metal Workers' Local claiming jurisdiction in the
area embracing Burt's plant. Local 65 has its office and operates in the area in-
cluding Cleveland, Ohio, and Local 98 is based and operates in the area of Columbus,
Ohio .5
Neither the Respondent Sheet Metal Workers' International Association nor any
of its affiliated Locals claims that it has at any time since 1944 been designated as
bargaining representative by any of Burt's employees. However, the various Locals
have for a long time represented and have held contracts covering the employees of
sheet metal contractors who install ventilators and other sheet metal items of the
types manufactured by Burt. More particularly, each of the sheet metal con-
tractors, who are alleged by the complaint to have been forced or pressed by the
Respondents to refuse to install or otherwise handle Burt's products, was either a
party to, or as a member of a contracting employers' association was governed by,
a contract with one of the Respondent Locals or with one of two sister Locals, Local
299 of Parkersburg, West Virginia, and Local 202 of Charleston, West Virginia. All
but one of these contracts in this particular group were executed on a four-page
printed form entitled "Standard Form of Union Agreement," which is commonly
furnished by the Sheet Metal Workers' International Association to the Locals on
the latters' requests and which, for convenience, will be hereinafter called "the
SFUA." The remaining contract in this group,6 although not executed on the
6 No evidence was offered concerning any activities on the part of Local 58, and the
allegations of the complaint with respect to Local 58 were accordingly struck from the
complaint upon the Respondents' unopposed motion made at the end of the General
Counsel's case See "Statement of the Case," above
G Contract dated September 22, 1956, between Local 70 and Sheet Metal Employers'
Association, which was received in evidence because it appeared from the testimony that
SHEET METAL WORKERS INT'L ASSN., AFL-CIO, ETC. 1639
printed form, incorporated the provisions of the SFUA which are relevant to the
issues in the present case. An examination of all these contracts, including the one
last mentioned, shows that each of them contained the following provisions of
articles I, II, and III of the SFUA, and that such modifying or supplementing
addenda as were attached to, and referred to in, the body of the particular contract
,did not affect the significance of these articles so far as the issues in the present
case are concerned:
ARTICLE I
SECTION 1. This Agreement covers the rates of pay, rules and working condi-
tions of all employees of the Employer engaged in the manufacture, fabrication,
assembly, handling, erection, installation, dismantling, reconditioning, adjust-
ment, alteration, repairing, and servicing of all ferrous or nonferrous sheet
metal work of No. 10 U.S. gauge or its equivalent or lighter gauge, and all
other materials used in lieu thereof, all shop and field sketches used in fabrica-
tion and erection, including those taken from original architectural and
engineering drawings or sketches and all other work included in the jurisdic-
tional claims of Sheet Metal Workers' International Association.
ARTICLE II
SECTION 1. The Employer agrees that none but journeymen sheet metal
workers and registered apprentices shall be employed on any work described
in Article I.
ARTICLE III
SECTION 1. The Union agrees to furnish at all times to the Employer, duly
qualified journeymen sheet metal workers and registered apprentices in sufficient
numbers as may be necessary to properly execute work contracted for by the
Employer in the manner and under the conditions specified in this Agreement 7
The foregoing provisions of articles I and II of the SFUA have been used by Sheet
Metal Workers' Locals as the basis of their contracts since at least 1937,8 and have
been construed and applied by the Respondent International and its Locals as
requiring the contracting employers to use sheet metal items fabricated by their
own employees or by the employees of another employer also under contract with
the Sheet Metal Workers. Until 1950, use of the SFUA, including the provisions
of articles I and II, was mandatory under the Respondent International's constitu-
tion. According to the testimony of Edward Carlough, secretary-treasurer of the
Respondent International , the constitutional provision for mandatory use of the
SFUA was deleted at the International's convention in 1950 , and the International
has since made the form available to the Locals merely as a "guide." However, it
appears to the Trial Examiner that the deletion of the particular mandatory clause
referred to by Carlough has actually given the Locals no real freedom since, under
articles 1 and 26 of the 1954 revision of the constitution, they are still required
to incorporate what amounts to the substance of articles I and II of the SFUA.
For section 5 of article 1 of this constitution still asserts the Sheet Metal Workers'
"full jurisdiction over the manufacture [ and] fabrication" of sheet metal items of
10-gauge or lighter, as well as over all the other types of work enumerated in
article I of the SFUA. And article 26 of the constitution refers to "the desirability
of uniformity in local union agreements ," provides that "this Association shall pre-
pare and furnish to each local union a Uniform Agreement to be used in all nego-
Mannen and Roth, a sheet metal contractor mentioned in the complaint as having been
forced to cease handling or installing Burt's products, was one of the members of the
contracting Sheet Metal Employers' Association and was thereby covered by the contract.
7 The contract covering Mannen and Roth (see preceding footnote) deviated only slightly
from the language of article I of the SFUA which is set forth In the above text. The
words "handling" and "gauge" were omitted. The phrase "and all other materials used
In lieu thereof" was changed to read "or any and all substitute materials used in lieu
thereof, including . . . In addition, there was appended to the Mannen and Roth
contract an "amendment" (actually a supplement) to article I, section 1, stating that
"Any sheet metal product covered in Article I, Sec. 1, erected or installed by the employer,
that is not manufactured or fabricated in the employers' shop, excluding a specified or
patented item, shall carry a recognized Sheet Metal Workers' International Label "
8 The only change made In the language of articles I and II was made by the Respondent
International in its 1946 convention, when the phrase "all shop and field sketches used
in fabrication and erection, including those taken from original architectural and engineer-
ing drawings or sketches" was inserted in article I. (See text of article I, above.)
1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tiations with employers," and then specifically requires inclusion of certain "basic
provisions" such as "provisions for proper requirements and protection of the juris-
dictional rights of this Association and the local unions." In any event, it is not
surprising, as the evidence shows and counsel for the Respondent International states
in his brief, that articles I and II of the SFUA have been "pretty generally followed
by [the Sheet Metal Workers'] local unions in the building trades."
Several other preliminary observations should be made concerning the execution
and administration of the Sheet Metal Workers' contracts which were received in
evidence. In the case of each of these contracts, the contract was made only with
the Sheet Metal Workers Local claiming the territorial jurisdiction embracing the
business headquarters of the sheet metal contractor. When the sheet metal con-
tractor has engaged on a job in another area, the Local at the jobsite has taken
over administration of the provisions of the contract so far as the particular job is
concerned, including the provisions of articles I and II; has assumed the role,
under article III, of supplying any necessary additional men for the job, if requested;
and in a preliminary job conference with the contractor under the basic contract,
has made adjustments to conform to local working terms and conditions. Finally,
with respect to the value to the sheet metal contractor of the provisions of article
III, it appears from the testimony of the sheet metal contractors that, as a matter
of convenience and sometimes as a matter of necessity, the sheet metal contractor
has generally relied upon the Sheet Metal Workers Local to supply competent sheet
metal workers.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
The controversy which has given rise to the present case is one of long standing.
As early as October 1946, Burt arranged a meeting with International Representative
Joseph Frederick and President W. O. Frost of Local 70, and complained to them
about the Sheet Metal Workers' refusals to permit the installation of Burt's products
by sheet metal workers employed by sheet metal contractors under contract with
the Sheet Metal Workers. In August 1956, and again in October 1956, after the
merger of the AFL and the CIO the preceding December, Vice President F. C.
Sawyer of Burt visited Washington and made the same complaint to President
Robert Byron and Secretary-Treasurer Edward Carlough of the Respondent Inter-
national. In the middle of 1956, the Steelworkers, as representatives of Burt's
employees, also complained about the matter to representatives of Local 70 in
meetings held in Akron upon arrangements made by the CIO Council of Akron
and the AFL Tri-County Building Trades Council. And in November 1956, Presi-
dent David J. McDonald of the United Steelworkers of America filed charges with
the AFL-CIO, asserting that refusals by the Sheet Metal Workers and its Locals
to install Burt's products violated article III, section 4 of the AFL-CIO constitution.
These charges were preliminarily discussed at a meeting on November 13, 1956,
by representatives of the Steelworkers and representatives of the Respondent Inter-
national, including President Byron and Secretary-Treasurer Carlough. At a
meeting held in Miami in February 1957, the executive council of the AFL-CIO
considered the charges and also a statement of position orally made by one of the
Respondent International's vice presidents, and directed an investigation. The
committee appointed by the executive council for this purpose visited the Burt plant
with Carlough later in February 1957. Evidence of the positions taken and state-
ments made by the Respondents' representatives at the meetings with Burt's repre-
sentatives and the Steelworkers' representatives, and also in the course of the investi-
gation of the Steelworkers' charges in the AFL-CIO proceeding, was admitted on the
question of the Respondents' motives in incidents which occurred since December 5,
1956, and which are therefore recent enough not to be barred by the limitations
prescribed by Section 10(b) of the Act. In addition, the evidence concerning state-
ments allegedly made by Respondents' representatives in their meetings with Burt's
representatives in October 1946 and August and October 1956, and during the
course of the investigation by the AFL-CIO of the Steelworkers' charges, was
admitted because the General Counsel has asserted in this bill of particulars that on
these occasions the Resnonderts made demands that Burt recognize the Respondent
International or one of its Locals as the bargaining representative of Burt's employees.
But the ultimate question presented by the complaint against this and other ma-
terial background is whether, since December 5, 1956, the Respondents or any
of them have committed unfair labor practices in some instances by inducing and
encouraging employees of sheet metal contractors not to install or otherwise handle
Burt's ventilators, and in other instances by coercive pressures upon the sheet metal
contractors themselves to compel their refusal to install Burt's products.
SHEET METAL WORKERS INT'L ASSN., AFL-CIO, ETC. 1641
The General Counsel and Burt contend not only that some of the Respondents
committed these acts and that the others were responsible participants in a common
course of action under a common policy, but that the Respondents' objectives were
proscribed by the Act and therefore made the acts unfair labor practices. Thus
the General Counsel and Burt argue from the evidence that an objective of the
Respondents' inducement and encouragement of the sheet metal contractors'
employees to refuse to install or otherwise handle Burt's products was in each case
to restrain or coerce the sheet metal contractor to cease doing business with Burt
and that these acts were therefore violative of Section 8(b)(4)(A) of the Act.
The General Counsel and Burt further assert that the Respondents' ultimate objective
was to compel Burt to recognize and enter into a contract with the Respondent
International or with one of its locals, as exclusive bargaining representative of
Burt's employees. Upon this basis, the General Counsel and Burt contend that
the Respondents' inducement and encouragement of a boycott of Burt's products
by the sheet metal contractors' employees has constituted not only a violation of
Section 8(b) (4) (A) of the Act, but also a violation of Section 8(b) (4) (B) and
(C), and that their asserted coercive pressures directly upon the sheet metal
contractors themselves have constituted violations of Section 8(b)(1)(A) and (2)
of the Act under the reasoning of the Board's decisions in Curtis Brothers, Inc.,
119 NLRB 232, and Alloy Manufacturing Company, 119 NLRB 307.
The Respondents have taken issue with the General Counsel and Burt on all of
these matters. Upon their view of the evidence, the Respondents deny that any
of them committed the unfair labor practices alleged in the complaint. They further
deny that it has been their objective, or the objective of any of them, to represent
Burt's employees or to secure recognition by Burt as such representative. They
assert, instead, that the Respondents' sole purpose has been to procure compliance
by the sheet metal contractors with their obligations under articles I and II of SFUA
to install or handle only such sheet metal products as have been fabricated by their
employees or by the employees of other manufacturers also under contract with the
Sheet Metal Workers. Further developing and supporting this position, the Re-
spondents assert that their objective in procuring compliance with articles I and
II was "to preserve and protect their craft jurisdiction for the purpose of obtaining
maximum employment opportunities for members and employees they represented,
in elimination of unfair competition between contractors in the same industry, the
establishment of employment stability, and the elimination of seasonal employment,
and to train and encourage apprentices to enter the industry." (Respondent Locals'
brief, at p. 66.) The Respondents contend that this objective explains and justifies
their conduct.
The Trial Examiner will consider first the evidence as to the particular, alleged
incidents of unfair labor practice not barred by limitations, and then generally the
evidence bearing upon the Respondents' objective or objectives.
B. Evidence of Respondents' acts since December 5, 1956
1. Pressure upon sheet metal contractors
a. Local 70 and Wooster Sheet Metal and Roofing Company
The Wooster Sheet Metal and Roofing Company of Akron is a partnership
consisting of William Rosenblatt, Harry Liberman, and Isaac Liberman. At all
times material to the issues in the present case, the Wooster Company has had a
contract with Local 70. The General Counsel and Burt contend that in a series
of incidents which occurred from October 15, 1956, to and including December 7,
1956, Local 70 and its business agents exerted improper pressure upon the Wooster
Company to compel it to refrain from installing Burt's ventilators. Although a
finding of unfair labor practice upon the basis of any of these incidents except the
December 7 incident is barred by the time limitation of Section 10(b) of the Act,
the exact significance of the December 7 incident is apparent only in the light of
the preceding related incidents.
On or about October 15, 1956, Business Agent W. O. Frost of Local 70 asked
Rosenblatt of the Wooster Company to tell him who had installed Burt ventilators
on a job referred to as the McLain Grocery job. Upon being informed by Rosenblatt
that it had been Edward Pickett, one of the Wooster Company's regular employees,
Frost told Rosenblatt that Local 70 would cancel its contract with the Wooster
Company because the Wooster Company had installed Burt ventilators.
On November 30, 1956, Frost visited Rosenblatt's office where he talked with
Rosenblatt in the presence of Harry Liberman and F. C. Sawyer, Burt's vice president,
who had come there on Rosenblatt's telephoned request. Frost told Rosenblatt
1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in substance that: He wanted the Wooster Company to live up to its contract with
Local 70; he was protesting against the Wooster Company's practice of installing
ventilators made by Burt, other ventilators made by the Swartwout Company, and
furnace fittings made by Moncrief, because none of these manufacturers was under
contract with the Sheet Metal Workers; this practice of the Wooster Company took
away employment from Frost's members who were the Wooster Company's em-
ployees; and, because of Wooster's installation of Burt's ventilators on a job for the
General Tire Company, Local 70 was canceling its contract with the Wooster Com-
pany and no men would be furnished on the Wooster Company's jobs the following
Monday. On Rosenblatt' s suggestion during this conversation, however, Frost agreed
to accept the Wooster Company's promise that it would not thereafter use Burt's
ventilators except on seven specifically named, pending jobs.
On the following day, December 1, Rosenblatt accordingly submitted to Frost a
draft of a commitment by the Wooster Company which stated that, although use
of Burt's ventilators was to be permitted on the seven pending jobs, the Wooster
Company would thereafter "refrain from installing vents other than AFL manu-
factured. We will further use up our stock of furnace fittings and in the future install
only AFL manufactured items." Frost accepted this commitment, however, only
when, at Frost's suggestion, Rosenblatt changed the clauses just quoted so that they
promised that the Wooster Company would thereafter "erect vents and use fittings
according to Standard Form of Union Agreement, Sheet Metal, Roofing, Ventilating
and Air Conditioning Contracting Divisions of the Construction Industry."
On December 7, 1956, Rosenblatt telephoned Lloyd Kenney, one of Local 70's
business agents, for permission to install Burt ventilators on a job for the Firestone
Tire Company, which was supplying the ventilators. Frost's and Rosenblatt's agree-
ment of November 30 and December 1 as to the exceptional cases in which the
Wooster Company would be permitted to install Burt ventilators had not referred
to this job. According to Rosenblatt's testimony, Kenney refused the requested per-
mission and , when asked by Rosenblatt how the ventilators could be installed, Kenney
replied, "Let Santa Claus do it." Kenney testified that he suspected that the Wooster
Company might have used mechanics other than its regular employees to set Burt's
ventilators on the two earlier jobs for the General Tire Company and McLain
Grocery and that he therefore asked what men had set the ventilators on these jobs.
According to Kenney, Rosenblatt refused to tell him this, and he therefore told
Rosenblatt that "if Santa Claus set the vents on these other jobs, he could let him
set them on the Firestone Service Station." On January 3, 1957, however, Kenney
gave the Wooster Company clearance on the Firestone job after another request
had been made to Local 70 by the Wooster Company's other partner, Harry
Liberman.
Upon consideration of the evidence to the foregoing effect, the Trial Examiner
concludes and finds, in accordance with Rosenblatt's testimony, that on December 7,
1956, Business Agent Lloyd Kenney of Local 70 refused to grant permission to
the Wooster Company to install Burt ventilators on the Firestone Tire job. The
Trial Examiner further finds, in the light of the incidents of October 15, November
30, and December 1, 1956, that Kenney's and Local 70's refusal of permission to the
Wooster Company to install Burt ventilators on the Firestone job must be regarded
as being based on the reasons given by Business Agent Frost to Rosenblatt in their
conversation of November 30, 1956.
Upon the foregoing findings of fact, the Trial Examiner concludes that on December
7, 1956, Local 70 and its business agent , Lloyd Kenney, exerted pressure upon the
Wooster Company not to install Burt ventilators on the Firestone job because the
ventilators were not fabricated in a Sheet Metal Workers shop.
b. Local 70 and the Kasch Roofing Co.
The Kasch Roofing Co. of Akron (herein called Kasch) has had contracts with
Local 70 for more than 20 years. For a long time, Harry Whittington, secretary
,of Kasch, has disputed Local 70's interpretation of articles I and II of the SFUA.
In the latter part of 1956, Business Agent Frost of Local 70 brought this dispute
before the Local Joint Adjustment Board, which had been set up under article IX
of the SFUA and was composed of Local 70's representatives and employer-repre-
sentatives of the Akron Roofing and Sheet Metal Association of which Kasch was
a member. The complaint as amended at the hearing alleges in substance that
Local 70 and its business agents violated Section 8(b)(1)(A) and (2) of the Act
by telling members of the Association at meetings of the Local Joint Adjustment
Board in December 1956. October 1957, and January 1958 that they were not to
purchase, handle, or install Burt's products because they would thereby be violating
the SFUA. The relevant facts as shown by ,the evidence are not in dispute.
SHEET METAL WORKERS INT'L ASSN., AFL-CIO, FTC. 1643
In September or October 1956, Business Agent Frost of Local 70 submitted to,
Whittington a list of manufacturers of ventilators and other sheet metal items who
had contracts with the Sheet Metal Workers, and told Whittington that he had in-
structions from the Respondent International "to tighten up and not to allow the use
of nonsheet metal union made products, for the simple reason that they wanted to
preserve the work for their men." 9 Then, a week or so before Christmas 1956,
Business Agent Kenney of Local 70 complained to Whittington over the telephone
about Kasch's installation of ventilators made by Burt and other manufacturers,
and asked Whittington to come to Local 70's office to settle violations of articles I
and II of the SFUA. When Whittington refused because they had already discussed.
these matters, Kenney asked for a meeting with the Local Joint Adjustment Board.
Although Whittington also refused this request, he later agreed to attend such a-
meeting when urged to do so by the chairman of the Adjustment Board.
At the meeting of the Local Joint Adjustment Board just before Christmas 1956,
Frost charged Kasch with buying and using ventilators made by Burt, Swartwout,
Jenn-Air, and Carnes, none of whom had a contract with the Sheet Metal Workers.
Kenney said that he knew that Kasch could make some of the equipment that it had
bought and that its contract with Local 70 required it to manufacture these items or
to buy them from another Sheet Metal Workers shop. Whittington challenged Local
70's interpretation of the contract and also the right of the Adjustment Board to
consider these matters. Whittington further stated that Kasch could not manufac-
ture the items to which Kenney referred and that, in any event, Kasch was obliged to,
conform to its contracts and specifications requiring particular makes and types of
ventilators. Frost then said that he had letters from the Wooster Company and from
the Carson Manufacturing Company and also oral agreements from several other
sheet metal contractors to the effect that they would not use or buy Burt ventilators;
that Kasch was no different from anybody else and would not be given special favors;.
and that if Kasch did not do what the other sheet metal contractors were doing,
Local 70 would cancel its contract.
The Local Joint Adjusment Board did not settle the dispute between Local 70 and
Kasch during or after this meeting in December 1956. Despite his threat at the
meeting, Frost did not cancel Local 70's contract with Kasch. And in October 1957
and December 1957, there were again disagreements with respect to Kasch's in-
stallations of ventilators made by firms not under contract with the Sheet Metal
Workers. In the first of these two cases, Kasch installed some ventilators made by
Carnes and others made by the Breitert Ventilating Company on an Ohio Edison'
job; and in the second case, Kasch installed Burt ventilators and Jenn-Air ventilators.
on a Highland High School job. Charging violations of their contract in each case,
Local 70 sent letters to Kasch, asking for a hearing before the Local Joint Adjustment
Board.
A meeting of the Adjustment Board was held on the second of these requests in,
January 1958. At this meeting, Frost and Kenney again stated that, relying upon
Local 70's contract with Kasch, Local 70 would permit the installation only of such
ventilators as were manufactured by an employer under contract with the Sheet
Metal Workers Whittington again disagreed with Local 70's interpretation of the
contract and refused to comply. Frost thereupon asked Whittington to agree to a
cancellation of their contract and Whittington refused. Here again, the meeting
before the Local Joint Adjustment Board failed to resolve Local 70's and Kasch's
dispute.
c. Local 70 and the committee of the Valley Sheet Metal and Roofers Association'
In December 1957, Business Agent Earl Ringler of Local 70 requested, and held,
a conference at Local 70's office in Wheeling, West Virginia, with a three-man com-
mittee of the Ohio Valley Sheet Metal and Roofers Association. The committee
consisted of Alvin Adkins of the Adkins Roofing Company, Edwin Cupp of T. E.
Cupp & Sons, and Charles Schenerlein of Schenerlein Roofing & Supply Company,
all of whom had contracts with Local 70 containing the provisions of articles I and
II of the SFUA. At this meeting Ringler told these men in substance that their use
of equipment other than that manufactured by a firm under contract with the Sheet
Metal Workers was a violation of article I of the SFUA. Ringler also gave them a
"fair list" of some of the manufacturers who had contracts with the Sheet Metal
Workers. The list, of course, did not include Burt. But neither did Ringler refer
to Burt, although the contractors committee, in discussing their difficulties, referred
to their contracts and specifications which called for Burt ventilators and the venti-
lators of other companies not under contract with the Sheet Metal Workers. Accord-
6 The quotation is taken from Whittington's testimony as to what Frost told him.
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing to Schenerlein's testimony, even though he bluntly suggested that Ringler was
really "fuss [ing] about this Burt ventilator business ," Ringler "didn't still say that's
exactly what it was" but said merely, "I want you to live up to this agreement."
d. Local 70 and Conditioned Air, Inc.
Conditioned Air, Inc., a sheet metal contractor with places of business in Charles-ton, West Virginia, and Columbus, Ohio, has at all material times been party to
contracts with Local 202 of Charleston and Local 98 of Columbus. These contracts
have included articles I and II of the SFUA. As the sheet metal subcontractor on
the erection of a student center building for Akron University in 1957 and 1958,
Conditioned Air dealt with Local 70 for the supply of necessary men at the jobsite.
In substance, the complaint alleges that on or about January 2, 1958, Local 70 and
Business Agent Frost committed an unfair labor practice within the meaning of
Section 8(b)(1)(A) and (2) of the Act, by informing Conditioned Air that it could
not handle or install Burt's products because Burt did not have a contract with the
Sheet Metal Workers, and also by giving Conditioned Air a list of manufacturers (not
including Burt) with whom Conditioned Air could do business.
On March 25, 1957, Conditioned Air was awarded the sheet metal and ventilating
subcontract on the university job, with sepcifications requiring the installation of
Carnes and Breitert ventilators, or their equal. Early in June, President Guy Hols-
claw of Conditioned Air told Vice President Leslie B. Hardy of the University that
there would be difficulties in installing Carnes ventilators because they were not
made in Sheet Metal Workers shops. Hardy suggested that Burt ventilators be used
and, on June 7, 1957, after ascertaining from President C. A. Palmer of Burt that
Burt had bid on the job and was still interested. Hardy instructed Holsclaw, by
letter, to install Burt ventilators. In the meantime, on June 5, Burt had filed the
charges in the present case and an account of the charges had appeared on the first
page of the Akron Beacon Journal. Shortly thereafter in June, Holsclaw told the
architect that trouble should be expected if Burt ventilators were specified. As a
result, in July or August 1957, the architect asked that the ventilators be deleted from
Conditioned Air's contract, with proper allowances, and pursuant to this request
the ventilators were deleted in September, and the allowances made.
Installation of the piping on the university job was completed in September 1957.
On October 30, O. W. Smith, Conditioned Air's sheet metal superintendent, visited
Business Agents Frost and Kenney at Local 70's office in Akron, and asked them to
supply men for the sheet metal job. Frost and Kenney said that use of non-Sheet
Metal Workers items would be a violation of article I of the SFUA, and Smith
agreed. Upon examination of the list of equipment, Frost asked about the venti-
lators. Smith said that they had been deleted from Conditioned Air's contract.
There was no mention of Burt's ventilators in this conversation and, as has been
noted, the specifications referred only to Carnes' and Breitert's ventilators, or equal.
When told of the deletion of the ventilators from the contract, Frost said that the
other equipment was of no use without ventilators and that therefore it would be a
violation of the Sheet Metal Workers' contract to install the ducts.
On November 20, 1957, President Holsclaw of Conditioned Air telegraphed Frost
for men for the job, and on December 10, 1957, visited Frost and Kenney at Local
70's office and made the same request. Kenney had answered the November 20
request by telephone. Both Kenney in his telephone call and Frost at the meeting
on December 10 insisted that the ventilators be restored to the contract and that only
Sheet Metal Workers items be used. At the meeting on December 10, Frost also
gave Holsclaw a list of manufacturers who had contracts with the Sheet Metal
Workers.
On December 23, 1957, Holsclaw, having decided to force the issue, shipped duct-
work and pipe to the job, and so notified Frost by telegram. When the ductwork and
piping arrived at the job on or about December 30, Harvey Hall, Conditioned Air's
piping superintendent, asked Kenney to supply men to unload and Kenney refused,
saying that "the material on the job was to be fabricated by sheet metal men."
Then, on January 2, 1958, President Holsclaw of Conditioned Air and Vice
President Hardy of the University visited Frost and Kenney at Local 70's office.
Holsclaw asked what could be done to get the sheet metal work started on the
university job Frost said that men would not be supplied to unload the ductwork
until there was an assurance that the ventilators would be reinstated in Conditioned
Air's contract and that all items, including the ventilators, would be made in Sheet
Metal Workers shops. Hardy asked what makes of ventilators would be approved,
and Frost mentioned a number of acceptable manufacturers and also a number of
manufacturers whose ventilators were not acceptable, including Carnes and Burt
in the latter group. In this last connection , Frost said that Burt's employees were
SHEET METAL WORKERS INT'L ASSN., AFL-CIO ETC. 1645
not Sheet Metal Workers members and that their wage rates were less than Sheet
Metal Workers rates. Hardy finally asked what Local 70's attitude would be if
Burt donated the ventilators to the University. Frost, in turn, asked whether the
University was assured of such a gift and Hardy said "No." The meeting ended to
permit Hardy to confer with the governing board of the University.
Hardy then discussed the matter with Holsclaw and Wyatt, the architect. They
decided that there were four possibilities: (1) that the ventilators be reinstated under
Conditioned Air's contract and that they be furnished by a manufacturer under
contract with the Sheet Metal Workers; (2) that Burt's ventilator parts be used but
that they be assembled by sheet metal workers on the jobsite; (3) that Burt's venti-
lator parts be used, but that they be assembled by Conditioned Air's employees at
Columbus and then delivered to the jobsite for installation; and (4) that Burt donate
the ventilators.
Hardy thereupon telephoned President Palmer of Burt and read off to him these
four possibilities. According to Hardy's testimony, Palmer "explained the reasons
why the first three were unsatisfactory to him," but agreed to the fourth suggestion,
i.e., that Burt donate the ventilators.
Hardy informed Frost of this, and Frost, after conferring with his associates,
accepted the proposition and agreed that Local 70 would supply the men for the
installation. As a result, Burt made a gift of the ventilators and they were installed
by members of Local 70 who were paid by Local 70.
Upon the foregoing facts shown by the evidence, the Trial Examiner finds that on
or about January 1, 1958, Local 70 and its business agent, William Frost, refused to
supply the sheet metal workers necessary for unloading and installing the ductwork
on the Akron University job unless ventilators manufactured in a Sheet Metal
Workers shop were included in the contract; and that Frost, as Local 70's business
agent, said that Burt ventilators would not be acceptable, and furnished Conditioned
Air with a list of acceptable manufacturers which did not include Burt. The Trial
Examiner further concludes that Local 70 and Frost thereby exerted pressure upon
Conditioned Air not to install Burt's ventilators because Burt's employees were not
represented by the Respondent International or one of its Locals.
e. Local 65 and A. Nabakowski Company
A. Nabakowski Company, a sheet metal contractor with its office at Amherst,
Ohio, is a member of the Lorain County Roofing and Sheet Metal Contractors'
Association, and was, in 1957, subject to the terms and conditions of the Associa-
tion's contract with Local 65, including articles I and II of the SFUA.
In May 1957, the Nabakowski Company submitted its bid to the mechanical
contractor for the installation of ventilators at a Ford Motor plant under construction
near Lorain. The mechanical contractor was to supply the ventilators which, accord-
ing to the specifications, were to be Breidert, Robinson, or Penn ventilators or "ap-
proved equal," and the sheet metal contractor was to assemble these ventilators at the
jobsite. Burt made this type of ventilators and the Nabakowski Company had
installed them at various times under subcontractors either with Burt or a mechanical
contractor.
About 2 months before Nabakowski submitted its bid on the Lorain job, Business
Agent Alton Page of Local 65 made his regular weekly visit to the Nabakowski
shop to see Local 65's steward. At the same time, Page saw M. W. Nabakowski,
the president of the Company and, referring to the Lorain job, told Nabakowski that
he expected the company to live up to the terms of its contract with Local 65 with
respect to the equipment to be purchased or erected, and that certain items, such as
fans, filters, and ventilators, might possibly be considered to be "unfair" unless they
bore the Sheet Metal Workers label. Nabakowski replied that Page should speak
to the mechanical contractor who was to purchase and supply the major portion of
the equipment for the job. At that time, Nabakowski did not know what make of
ventilators would be purchased by the mechanical contractor, and Page did not
mention the name of any ventilator manufacturer.
A short time after his conversation with Page, Nabakowski talked about some-
thing else over the telephone with Secretary Carlough of the Respondent Inter-
national and told Carlough that it appeared that his company would be the successful
bidder on the Ford Lorain job. Carlough said that Nabakowski should be sure
that it lived up to its agreement "to erect only those products which were made under
the Sheet Metal Workers."
The Nabakowski Company was later awarded the ventilator subcontract but, as
Nabakowski had told Page, did not make the decision as to what ventilators were
to be installed. At one point in his testimony, Nabakowski testified that the specifica-
tions were changed to require Burt ventilators and that the mechanical contractor
1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supplied Burt ventilators. On cross-examination, however, Nabakowski testified
that the mechanical contractor supplied Breidert ventilators.
Upon the facts just found, it is clear that Local 65, Business Agent Page, and Sec-
retary Carlough reminded Nabakowski that he was not to install equipment on the
Lorain job unless it was fabricated in a Sheet Metal Workers shop as required
by the SFUA. It is equally clear that: This was a reminder of the general
requirements and application of the SFUA; it was not given in contemplation of, nor
directed specifically against, the use of Burt's equipment on the Lorain job; as a
matter of fact, Nabakowski was not to choose the make of ventilators he was to
install under his contract; and the mechanical contractor eventually supplied Breidert
ventilators which were made in a Sheet Metal Workers shop. The evidence, there-
fore, does not warrant any conclusion either that Local 65, Page, or Carlough
exerted pressure upon Nabakowski not to install Burt ventilators or that they pre-
vented the installation of Burt ventilators on the Lorain job.
f. Local 98 and Tri-State Roofing Company
Tri-State Roofing Company of Parkersburg, West Virginia, has, at all material
times, had a contract in the form of the SFUA with Sheet Metal Workers' Local 299
of Parkersburg.
In the fall of 1956, Tri-State received a subcontract for the sheet metal and
ventilating work on a science and engineering building for Ohio University at
Athens, which is in the area in which Local 98 operates under its charter. Tri-State
was to select the ventilators in accordance with the specifications, subject to the
approval of the State architect. In October 1956, Tri-State submitted shop draw-
ings of Burt's ventilators to the State architect through the general contractor on
the job. In December 1956, the general contractor forwarded to Tri-State a copy
of a letter which it had received from the State architect and which stated:
Due to an unfortunate labor situation currently existing , we are returning
herewith, not inspected, all copies of the shop drawings for gravity roof ven-
tilators for the subject project (as prepared by The Burt Manufacturing Co. for
your subcontractor, Tri-State Roofing Co.), which you forwarded to us under
date of December 4, 1956.
From experience on other projects we have learned that the Burt Manu-
facturing Company's products are not acceptable in this state, currently (at
least not on a statewide basis), to the AFL sheet metal workers union, and
we have no information as to when the situation may clear up.
Tri-State did nothing about the ventilators for the science and engineering building
until the spring or summer of 1957. In the meantime, although Tri-State had also
submitted shop drawings of Burt ventilators to the general contractor on another
job at the Athens High School, it substituted ventilators made by a manufacturer
under contract with the Sheet Metal Workers.
In June 1957, Tri-State took up the matter of the engineering building job with
Local 98. C. R. Lessig, assistant to Tri-State's general manager, asked Business
Agent Clifton Deangulo over the telephone whether Tri-State could install Burt venti-
lators on that job. Deangulo asked whether Tri-State had a Sheet Metal Workers
contract and Lessig said that it did. Deangulo then said, "Let's live up to the con-
tract." Although Lessig asked what particular paragraph of the contract was relied
upon, Deangulo merely said that Tri-State was to live up to the SFUA. Lessig then
telegraphed Secretary Edward Carlough of the Respondent International for "per-
mission to install Burt Manufacturing Co. ventilators on the Ohio University
job at Athens, Ohio," but received no reply.
Tri-State then completed its work on the science and engineering building by
installing ventilators made by a manufacturer under contract with the Sheet Metal
Workers.
Upon the foregoing facts shown by the evidence, the Trial Examiner finds that,
upon Lessig's question, Business Agent Clifton Deangulo of Local 98 said that,
under the SFUA, Tri-State was not to install Burt ventilators, and that Local 98
and Deangulo thereby exerted pressure on Tri-State and prevented the installation
of Burt ventilators on the engineering building.
2. Inducement and encouragement of employees of sheet metal contractors
a. Local 70 and employees of the Wooster Company
Early in 1957, Business Agent Frost of Local 70 told Harry Liberman, one of
Wooster Company's partners, that the Wooster Company was not to install Burt
SHEET METAL WORICERS INT'L ASSN., AFL-CIO, ETC . 1647
ventilators on an Ohio Bell warehouse job in Akron. In May or June 1957, William
Rosenblatt, another partner of the Wooster Company, asked Edward Pickett and
Frederick Wetshtein, who were regular employees of the Company and members
of Local 70, if they would install Burt ventilators on this job, but both employees
refused. Wetshtein said that he did not want to get into any trouble, and Pickett
said he would be fined if he installed the ventilators. Liberman asked frost in the
middle of May 1957 for permission for the installation , and Frost said he would
let Liberman know the next day. On the following day, Business Agent Lloyd
Kenney of Local 70 gave the requested permission . Upon being informed of the
Union's approval of the installation by Norman Gilroy, Local 70's steward,
Wetshtein and an employee by the name of Miller then installed the Burt ven-
tilators on the Ohio Bell job on June 24, 1957.
The General Counsel and Burt contend that Wetshtein' s and Pickett's refusals to
install Burt's ventilators were induced and encouraged by the Respondents. With
respect to Pickett, the General Counsel and Burt assert merely that the Respondents'
inducement and encouragement of his refusal is to be found in the provisions of
the Respondent International's constitution claiming jurisdiction over fabrication as
well as installation, requiring all members to protect the Sheet Metal Workers' juris-
dictional rights, forbidding any member's waiving or relinquishing any jurisdictional
rights, requiring each member to take an oath or obligation binding him to the
observance of the provisions of the constitution, and provisions for penalties and
fines for violating any constitutional provision, union rule, or established union
agreement. But in his testimny, Pickett showed no knowledge of any of these
constitutional provisions and was unable to tell just why he feared he would be
fined if he installed Burt's ventilators. Furthermore, the Trial Examiner has ex-
amined and considered the constitutional provisions relied upon by the General
Counsel and Burt finds them too general to justify a finding that their effect upon
Pickett or any of the other Wooster employees was to induce or encourage them
to refuse to install Burt's ventilators on the Ohio Bell job.
In the case of Wetshtein, however, the General Counsel and Burt rely upon
remarks made by Business Agent Kenney of Local 70 to Wetshtein while Wetshtein
was working for the Wooster Company on a Peninsular Steel job adjoining the Ohio
Bell job. Wetshtein testified that Kenney visited him on the Peninsular Steel job
in the spring of 1957 and that he believed it was before he refused Rosenblatt's
request to install the Burt ventilators on the Ohio Bell job. Wetshtein further
testified that he asked Kenney "what the situation was on ventilators . . . I believe
it was the Burt ventilators . if we were supposed to install them or what the
situation was on it." According to Wetshtein, Kenney replied that "he wasn't
sure. And, that anything that I wasn't sure about myself, just not to handle it,
until you find out first."
Kenney testified that, during his conversation with Wetshtein, he could see, from
where they stood, that the Ohio Bell ventilators had already been set; that Wetshtein
asked him what he should do about the installation of Burt ventilators or any other
kind of ventilators that did not carry the Sheet Metal Workers label; and that
Kenney told Wetshtein "he would have to make up his own mind on the installation
of those products that didn't carry [the Sheet Metal Workers] label, whether they
were Burt or whoever they were." At first, Kenney testified that this conversation
took place in the late spring of 1957 but, upon later being recalled, he testified
that, having had Rosenblatt check the company's records as to when Wetshtein had
worked on the Peninsular Steel job, he believed that it was in July 1957. Rosenblatt,
upon also being recalled, testified that Wetshtein had worked on the Peninsular
Steel job on various days of each month from the end of March to the end of
July 1957.
Upon consideration of the foregoing evidence, the Trial Examiner finds that
Kenney told Wetshtein in the spring of 1957, and before Wetshtein's refusal to
install Burt ventilators on the Oho Bell job, that Kenney was not sure whether
Local 70's men should install Burt ventilators, and that Wetshtein was not to
handle Burt's ventilators until he found out. The Trial Examiner further finds that
Kenney thereby encouraged Wetshtein not to handle Burt ventilators.
There remains the question of whether the evidence warrants merely a finding
of an inducement and encouragement of a single employee (Wetshtein) which
would not be a violation of Section 8(b) (4) (A) of the Act. Although counsel
for the Respondent Locals makes this contention, the Trial Examiner believes that
Kenney's statement to Wetshtein constituted an inducement and encouragement not
•only of Wetshtein but also of the other employees of Wooster. For a union rep-
resentative's statements inducing and encouraging one of a number of union em-
ployees of a single employer to refuse to perform services which are usually per-
1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formed together by two or more such employees constitute, in effect and by normal
intention, an inducement and encouragement of the other employees as well. The
Trial Examiner therefore concludes and finds that Local 70 and Business Agent
Lloyd Kenney induced and encouraged the employees of Wooster to engage in a
concerted refusal to install Burt's ventilators on the Ohio Bell job in the spring
of 1957.
b. Local 65 and employees of Mannen and Roth Company
Mannen and Roth Company, a Cleveland sheet metal contractor, is a member of
Building Trades Employers' Association of Cleveland, and was, in 1957, subject to
the terms and conditions of the Association's contract with Local 65, including
articles I and II of the SFUA. Article VII of this contract required foremen to be
members of the Sheet Metal Workers.
In October 1957, Melvin Albert, Mannen and Roth's outside foreman and a
member of Local 65, had three mechanics (also members of Local 65) installing
Burt ventilators on a Cleveland job known as the East Side Recreation Center job.
Business Agent Clarence Desch of Local 65 visited the job and questioned Albert
as to the type of ventilators being used. Upon checking the bills of lading, they
found that they were Burt's ventilators. While the men were at work assembling
a ventilator on the roof, Desch told Albert not to install the ventilators until.
Albert heard from Desch. Albert stopped work on the ventilators and took the
men downstairs to work on the ducts. A week later, Desch told Albert "to
go ahead."
In explanation of why he had Ma.nnen and Roth's men stop installing Burt's
ventilators on this job at Desch's request, Albert testified that "We try to install
things that are made by our organization," and that "We are union members and
we sort of know that you are not supposed" to install equipment not made in a
Sheet Metal Workers shop.
Under the circumstances, the Trial Examiner finds that Albert, in complying with
Desch's request and stopping the installation of Burt's ventilators by Mannen and
Roth's employees, was acting as a member and representative of Local 65 rather
than as a representative of Mannen and Roth. The Trial Examiner, therefore,
concludes that Local 65 and Business Agent Desch, using the position occupied by
Albert, induced and encouraged Mannen and Roth's employees to engage in a
concerted refusal to install Burt's ventilators on the East Side Recreation lob.io
C. The Respondents' objectives
1. Generally
As an old-line federation of craft unions, the Sheet Metal Workers' International
Association and its Locals have unquestionably sought to develop the skills and to
protect and advance the legitimate economic interests of the sheet metal craftsmen
whom they represent. To assure a high standard of performance in all phases of
sheet metal work, including not only installation but also fabrication, the Interna-
tional's constitution has required each Local to include in its contracts with employers
provisions for a joint apprentice program. For years the Locals have been engaged
in this joint program, supplying instructors, arranging and providing for compen-
sated on-the-job training for apprentices, and administering the examinations neces-
sary to a determination of whether apprentices have the qualifications to work inde-
pendently as skilled journeymen. The Sheet Metal Workers has thereby developed
the necessary skills of sheet metal craftsmen, has sought to obtain for the craftsmen
the compensation which these skills should bring, and, at the same time, has provided
employers with well-rounded, competent sheet metal craftsmen.
As the representatives of the sheet metal craftsmen, the Sheet Metal Workers has
also naturally been interested in securing as much work for them as possible, in order
to bring about stability in their employment and to avoid seasonal layoffs and pres-
sure for a lowering of their wage rates. Since the witnesses estimated that 40 per-
cent of sheet metal work consists of fabrication which can be performed in a shop
regardless of season and weather conditions, it has obviously been important to the
Sheet Metal Workers to take whatever steps it could, to have this work done by the
sheet metal workers whom it represents.
10 Local 1016, United Brotherhood of Carpenters, etc. (Booher Lumber Company), 117
NLRB 1739, Local 1976, United Brotherhood of Carpenters, etc. (Sand Door and Plywood
Co ), 113 NLRB 1210, 1212-1213, 241 F. 2d 147, 156; International Brotherhood of
Electrical Workers et at. (Franklin Electric Construction Company, et at.), 121 NLRB 143.
SHEET METAL WORKERS INT'L ASSN., AFL-CIO, ETC. 1649
The consequent desire of the Sheet Metal Workers to protect and enlarge the
work opportunities of its craftsmen has thus been clearly a prime reason, if not the
only reason, for its insistence for at least the last 20 years that its contracts with
employers include the substance of articles I and II of the SFUA and that, under
these provisions, the contracting employers be required to install only equipment
manufactured in a Sheet Metal Workers shop. Not only is this shown by the evi-
dence 11 but it is apparently not seriously disputed by either the General Counsel
or counsel for Burt.12 The thrust of their argument is that the Sheet Metal Workers
has also used the product boycotts resulting from its construction of articles I and
II, for the purpose of coercing non-Sheet Metal Workers manufacturers and their
employees to accept the Sheet Metal Workers as bargaining representative, and
that this is especially clear in the case of Burt, in view of statements allegedly
made by representatives of the Sheet Metal Workers to Burt, to the Steelworkers,
and to the AFL-CIO executive council and investigating committee.
The evidence presented on this general contention and its denial by the Respond-
ents raises two sets of different factual issues which, for convenience, will be con-
sidered separately although they are obviously related and cover the same period
of time, i.e., since roughly October 1, 1946. The first set of these issues is whether,
aside from any statements which may have been made by their representatives to
Burt, the Steelworkers, or the AFL-CIO, the Respondents' general conduct since
1946 gives any indications that they were interested in representing Burt's employees
or that they were using product boycotts incident to articles I and II of the SFUA
in attempts to organize the employees in non-Sheet Metal Workers shops or directly
to compel or coerce recognition by the employers. The second set of factual issues
is whether the Sheet Metal Workers, in statements to Burt, the Steelworkers, or the
AFL-CIO, suggested or demanded a turnover or transfer of Burt's employees from
the Steelworkers to the Sheet Metal Workers. For the most part, the evidence bear-
ing on the first set of these issues is not in conflict, the dispute being rather as to the
inferences which should be drawn from uncontroverted basic facts. As to the second
set of issues, however, the evidence is in sharp conflict.
2. The Respondents' general conduct
The evidence shows that the Sheet Metal Workers has applied articles I and II
generally against the products of all non-Sheet Metal Workers manufacturers and
fabricators. Burt has therefore obviously not been one of a comparatively few
manufacturers accorded special boycott attention for organizational purposes.
The General Counsel and Burt contend, however, that the evidence shows that the
Sheet Metal Workers has in fact been interested in organizing and representing Burt's
employees since 1946 and that, with respect to Burt as well as other non-Sheet Metal
Workers manufacturers, they have used the product boycott under articles I and II
in combination with certain other tactics, for the purposes of eliminating or mini-
mizing the installation of non-Sheet Metal Workers products, of bringing obvious
economic pressure in this fashion upon both employees and employers in non-Sheet
Metal Workers shops to accept the Sheet Metal Workers as bargaining representa-
tive, and of capitalizing upon these pressures as opportunity presented itself. The
tactics which the General Counsel and Burt assert were thus employed by the Sheet
"Business Agent Frost of Local 70 testified that the "intent" of the Sheet Metal
Workers in enforcing articles I and II has been "to get all the work for the members of
our Union as possible and . . . we do everything we can to see that our companies . . . do
that work so that our men can be steadily employed " Business Agent Kenney of the same
Local testified that the Sheet Metal Workers "have tried to educate our members to the
fact that the more products that they manufacture themselves, the better standards of
living that they will have and the more year around employment that they will have "
The evidence shows also that whenever the reasonableness of the Sheet Metal Workers'
reliance upon articles I and II was questioned by its contractors, the Sheet Metal Workers'
representatives explained that they were merely protecting the work opportunities of the
people they represented
19 In their briefs, neither the General Counsel nor counsel for Burt concedes that one of
the motives for the Respondents' construction and general use of articles I and II of the
SFUA was to assure as much work as possible for the men they represented. But neither
do they point out anything in the record which refutes the evidence to this effect Their
argument is simply that the evidence shows that, with respect to Burt, the Respondents'
prime objective-or, its counsel for Burt puts it, the Respondents' "real purpose"-was to
compel Burt to recognize the Sheet Metal Workers as the representative of Burt's
employees.
1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metal Workers in conjunction with its product boycott consist of the promulgation
and use of a "fair list" of Sheet Metal Workers manufacturers; an insistence that
Sheet Metal Workers products bear the Sheet Metal Workers label for ready iden-
tification and clearance and in order to impress non-Sheet Metal Workers employers
and their employees with the importance to them of having a Sheet Metal Workers
.contract; and the conduct by the Respondent International of a nationwide organi-
zational campaign in 1956 and 1957, with an announcement that its objective was
"to organize and protect our work in the production and fabrication phases of the
sheet metal industry."
a. Absence of any direct attempt to organize Burt's employees
But the Sheet Metal Workers did not show any significant interest in directly
organizing Burt's employees or in taking the initiative in an attempt to coerce Burt
to grant recognition. For uncontradicted evidence shows that since 1944, none of
the Sheet Metal Workers' local or International representatives have visited Burt's
-plant, have solicited membership applications or distributed any literature among the
Burt employees, or have made any contacts with Burt officials to secure recognition
or assistance in swinging the Burt employees into the Sheet Metal Workers. The
only evidence as to any contacts between representatives of the Sheet Metal Workers
and Burt employees related to three incidents, the first two of which occurred during
the Steelworkers strike at Burt in August and September 1954, and the other during
the following year. In the opinion of the Trial Examiner, none of these incidents
would support an inference that the Sheet Metal Workers was particularly interested
in organizing Burt's employees, much less that they were using a boycott of Burt's
products under articles I and II of the SFUA for that purpose.
As to the first of these incidents, President William Griffiths of the Steelworkers'
Local testified that Robert Kidney, then a trustee of Local 70 and later a business
agent, appeared on the Steelworkers' picket line; that Kidney said he was a Sheet
Metal Workers representative and offered help if the strikers were having trouble
with the Teamsters or any other AFL union; and that Griffiths replied that they
themselves could take care of any trouble that they might have. According to
Griffiths, he did not know who Kidney was until he saw Kidney in 1958 at the
-trial in the district court injunction proceeding lust before the Board hearing.
Kidney, in his testimony, denied having been at the Burt picket line or, for that
matter, ever having been at, or outside, Burt's plant The Trial Examiner credits
Griffiths' testimony but is of the opinion that even Griffiths' version of his conversa-
tion with Kidney does not indicate that the Sheet Metal Workers was interested in
undercutting the Steelworkers and attracting Burt's employees to the Sheet Metal
Workers, much less that the Sheet Metal Workers was using its practices under
articles I and II for this purpose.
As to the second incident during the 1954 strike there is no conflict in the testi-
mony. Four or five Burt employees, including John Ryder, then financial secretary
and later president of Burt's Steelworkers' Local, visited Business Agents Frost and
Kenney at Local 70's Akron office on their own initiative. They asked Frost what
the AFL would have to offer in comparison with the CIO. Frost said they could
belong to his union provided there were enough people who wanted to join, but
-that they would have to discontinue with the CIO. Frost suggested that they might
get other interested employees to sign a petition. But neither Frost nor Kenney
furnished them with a petition nor did they give the men any literature or mem-
-bership applications. The men left Local 70's office and nothing ever resulted from
their visit. As the Trial Examiner views this incident, if it indicates anything, it
indicates such restraint on the part of Frost, Kenney, and Local 70 in not taking full
advantage of the organizational opportunity presented to them as to cast doubt upon
-the General Counsel's and Burt's argument that the Respondents were at that very
time greatly interested in representing Burt's employees and were using boycott
-pressures to attain that objective.
The third incident, which occurred sometime in 1955, involved a telephone con-
versation between Kidney (by then a business agent of Local 70) and President
Griffiths of the Steelworkers' Local. Kidney had accompanied his young son to a
meeting of the YMCA "Indian Guides" at the home of Libert Bozzeli, whose son
-was also a member of the group. Kidney and Bozzeli, a member of Local 70 and
later a business agent, talked about Burt, and Kidney said he would dike to know
what was going on. Bozzeh said he had a friend named Griffiths who worked for
Burt and Kidney asked Bozzeli to let him speak to Griffiths. Bozzeli then telephoned
,Griffiths and introduced Kidney over the telephone. At the beginning of the con-
versation, Kidney identified himself as,a business agent for the Sheet Metal Workers.
SHEET METAL WORKERS INT'L ASSN., AFL-CIO, ETC. 1651
According to Kidney , he merely told Griffiths he wanted to find out about the Burt
employees and the Steelworkers since this was his "business " as a business agent, and
Griffiths said he was not interested , that the Steelworkers had a firm 2-year contract
with Burt. Griffiths testified, however, that: Kidney said he understood the Steel-
workers' contract with Burt was about to expire; Griffiths said Kidney was wrong,
that a contract had just been negotiated and would expire only on June 1, 1956;
Kidney said he would like to discuss the possiblity of getting Burt's employees into
the Sheet Metal Workers; Griffiths refused to talk about the matter because of his
Steelworkers' oath but would arrange a meeting with McKendrick, the Steelworkers'
International representative; but Kidney made no reply and the conversation ended.
Although the Trial Examiner credits Griffiths' version of this conversation, he
notes that Kidney's inquiry was apparently perfunctory, made no reference or allusion
to a boycott of Burt's products or the advantage of affiliation with the Sheet Metal
Workers to avoid the boycott, and was not thereafter pressed either by Kidney or any
other Sheet Metal Workers' representative. The Trial Examiner therefore regards
Kidney's inquiry as indicating no more than the normal interest of the representative
of one union in the possibility that employees represented by another union might
want to join his union when their current contract expired. Certainly it indicated
no special interest in organizing Burt's employees nor any reliance upon boycott
pressure for that purpose.
b. The Respondent International 's organizational campaign
We come next to a consideration of the Respondent International 's nationwide
organizational campaign which was begun in October 1956 with the creation of a
department of organization under George K. Reese as its director . The campaign
thus began not only about 10 months after the AFL and CIO had merged under a
constitution prohibiting any affiliate's interference with another's established bargain-
ing relationships and its "raiding " of the other 's membership , 13 but at the same time
that Burt and the Steelworkers had separately initiated meetings with the Sheet Metal
Workers to protest the Sheet Metal Workers' refusal to install Burt's equipment, all
of which will be described in the next section of this report.
As Reese testified and the Sheet Metal Workers' Journal informed its members
in articles written by Reese, the organizational campaign was to be conducted by the
International's organizers for the purpose of organizing the employees of sheet metal
manufacturers. But it is also undisputed that in spite of this avowed general purpose,
neither Reese, any International organizer , nor any other representative of the Inter-
national or any Local, has made any contact with Burt employees, nor provided
them with literature or membership applications, nor visited Burt's plant, except
with the AFL-CIO investigating committee in February 1957.
13 The pertinent provisions of sections 3 and 4 of article III of the AFL-CIO constitu-
tion were the following
Sec 3. Each such affiliate shall retain and enjoy the same organizing jurisdiction
in this Federation which it had and enjoyed by reason of its prior affiliation with
either the American Federation of Labor or the Congress of Industrial Organizations.
In cases of conflicting and duplicating jurisdiction involving such affiliates, the
President and Executive Council of this Federation shall seek to eliminate such con-
flicts and duplications through the process of voluntary agreement or voluntary
merger between the affiliates involved.
Sec. 4 The integrity of each such affiliate of this Federation shall be maintained
and preserved . Each such affiliate shall respect the established collective bargaining
relationship of every other affiliate and no affiliate shall raid the established collective
bargaining relationship of any other affiliate \I1ien a complaint has been filed with
the President by an affiliate alleging a violation of this section by another affiliate,
that has not been settled under the provisions of the No -Raiding Agreement referred
to in Article XVIII, the President shall endeavor, by consultation with the appropri-
ate officers of both affiliates , to settle the matter by voluntary agreement between such
affiliates . In the event no such voluntary agreement is reached within a reasonable
time, the President shall report to the Executive Council with such recommendations
as he may deem appropriate . Upon such report being submitted , the Executive
Council shall consider the same , shall hear the appropriate officers of the affiliates
involved , and shall make such decision as it believes to be necessary and proper to
carry out the provisions of this section . In the event an affiliate shall fall to comply
with such decision, the Executive Council shall submit the matter to the convention
for such action as the convention may deem appropriate under the provisions of this
constitution
1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to the Respondents, this omission of any of the usual direct organiza-
tional tactics, so far as Burt's employees were concerned, is explained by a lack of
any interest on the part of the Sheet Metal Workers in representing Burt's employees.
Thus, Director Reese and General Secretary Carlough, under whom the department
of organization was created and operated, testified that they gave no instructions to
organize Burt's employees. Reese further testified that the first time he had heard
any mention of Burt was in the spring of 1957 at a meeting of business agents in
Cincinnati, when Carlough said that under no circumstances would the Sheet Metal
Workers take Burt's employees as members, even if there were such an offer.
Furthermore, according to Reese's testimony, his instructions from Carlough and
his instructions to the newly appointed International organizers in October 1956 had
been to the effect that they were to organize "the unorganized" but that attempts to
organize plants whose employees had already been organized by other affiliates of
the AFL-CIO would not be tolerated.
The General Counsel and Burt contend, however, that the International's organiza-
tional campaign of 1956 and 1957 is significant in the present case not only because
it was expressly undertaken for the purpose of organizing the employees of manu-
facturers who had no contracts with the Sheet Metal Workers, but also because the
manner in which Reese conducted the campaign shows that the Sheet Metal Workers
were intent upon organizing manufacturing plants even though, like Burt's, they may
have already been organized by the Steelworkers or other international unions;
encouraged the Sheet Metal Workers' members to cooperate in compiling a "fair
list" of the Sheet Metal Workers manufacturers and to refuse to install sheet metal
products which did not bear the Sheet Metal Workers label; and countenanced the
actions of the International's organizers in using boycott pressures upon manufactur-
ers to compel them to assist the Sheet Metal Workers in organizing their employees.
The General Counsel and Burt make this particular argument upon the basis of
portions of Reese's testimony, excerpts from an article by Reese in the Sheet Metal
Workers' Journal, and reports made to Reese by International organizers on Sep-
tember 22, 1957, and February 2, 1958.
As the General Counsel points out in his brief, Reese stated in his testimony that
in soliciting employees "at an unorganized plant" whose products "are being installed
by Sheet Metal Workers, you sort of use the line that by affiliating with the Sheet
Metal Workers that you are insuring them fuller employment," and that "you im-
press upon them that by affiliating and using the union label and through [our]
advertising their affiliation that they will gain greater employment." And, in his
article which appeared in the June 1957 issue of the Journal, Reese requested the
members to cooperate in the International 's compilation of a list of manufacturers
under contract with the Sheet Metal Workers and, in this connection, explained:
Several different International Unions, for example, Machinists, Steelworkers,
Auto Workers, etc., have been organizing plants manufacturing products that
are designed for installation by our building and construction members. We,
when we refuse to handle these products , are in a dangerous position when we
cannot give our contractors the names of manufacturers under agreement with
us turning out like products bearing our Union Label . .. .
Wi',h respect to contacts with employers whose employees were unorganized,
Reese testified that he told his organizers that they were to organize the employees
and then ask the employer for recognition, but that in some instances they might talk
first to the employer to learn whether the plant was organized and the employer's
attitude toward organization. If the employer should say he was opposed to the
organization of his employees, the organizer was to "handbill" the plant and try
to obtain the employees' signatures. If the employer should say that he was not
opposed and was willing to bargain, then the organizer was to let the employees
know of this, as an aid in his organizing them. According to Reese, he gave his
organizers no instructions as to what they were to do, if they were still unable to
get a majority of the employees , except that they were "not to spend too much time
in the plant when they couldn't get the employees."
It appears, however , from a weekly report made to Reese by Organizer James
Winter of St. Paul, Minnesota, on February 2, 1958, that Reese was advised of
Winter's directly approaching two unorganized manufacturers in Indiana and en-
listing their aid in "advising" or "convincing" their employees to join the Sheet
Metal Workers, and that in one of these instances Winter had previously told the
employer "that we must have all of their workers if we are to allow them the use
of our Union Label." The relevant portions of Winter's report were the following:
Brothers Hussey , Scaduto and I met with Mr. Howell of Jenn Air . Advised
us that we will definitely get the bargaining rights. . . . Company will handle
SHEET METAL WORKERS INT'L ASSN., AFL-CIO, ETC. 1653
the employee problem by advising them to join the SMWIA. I previously
advised him that we must have all of their workers if we are to allow them
the use of our Union Label.
Met with employees of Meuron & Company this date as owner advised us
that he was having a problem with convincing them to join SMW. Employees
now more receptive and asked for several days to think matter over... .
The organizer 's report of September 22, 1957 , upon which the General Counsel
also relies , was that of Edward Hussey, district director of organization , and con-
cerned the efforts of Hussey and A . J. Cronin , a vice president of the Respondent
International and president of Local 73, to organize the employees of Drying Sys-
tems, a Chicago oven manufacturer, whose president was a man named Russell.
The portion of the report relied upon by the General Counsel was the following:
... Met with Mr . Cronin and then went out to Drying Systems to keep
appointment with Mr. Russell. Mr. Cronin told Russell just what could
happen to their products from an International standpoint if any other Union
step in and organize their shop . Russell agreed that this would ruin the
Company .. .
In his testimony concerning his connection with this matter and his understanding
of the report of his organizer , Reese explained that he had previously been told by
either Hussey or Cronin that one Narrowitz , a sheet metal manufacturer under con-
tract with Sheet Metal Workers ' Local 73 of Chicago, was part owner of Drying
Systems, an unorganized manufacturer of ovens, and that, through this relationship,
Drying Systems ' ovens and Narrowitz ' ductwork which bore the Sheet Metal
Workers label were being sold as "a package" from Narrowitz ' shop. Reese testified
that he told Hussey that Hussey and Cronin should contact Drying Systems about
this practice of "baptizing the products of a non-union product with a product
manufactured by a union "; that Reese also told Hussey to "handbill" Drying Sys-
tems' plant and get its employees organized ; and that Reese then spoke to Cronin
about Drying Systems' and Narrowitz' practice and Cronin said he would "get after
it right away ." Finally, Reese testified that, after he received Hussey 's report of his
and Cronin 's visit to Russell on September 22, he merely told Hussey "to be sure and
get [Drying Systems] organized ," and made no comment as to Cronin 's remarks to
Russell which he understood , from the report , were to the effect that Drying Systems
would be ruined if it continued to package nonunion ovens with Sheet Metal
Workers ductwork , because the Sheet Metal Workers would not install them.
Consideration of this evidence relating to the Respondent International 's organi-
zational campaign shows that Reese encouraged the development and use of the
"fair list" and an emphasis upon the advantages of the right to use the Sheet Metal
Workers label in connection with the Sheet Metal Workers' organization of the em-
ployees in unorganized manufacturing and fabricating shops. In other respects,
however, this evidence would in itself fall short of supporting the General Counsel's
contentions as to the purposes of the campaign and the manner in which it was
generally conducted.
The excerpt taken by the General Counsel from the June 1957 issue of the Journal
is just as consistent with Reese's testimony that the Sheet Metal Workers did not
propose to organize shops like Burt's, which had already been organized by another
AFL-CIO affiliate, as it is with the General Counsel 's conclusion that the article did
show such an intent . For, although the article refers to a Sheet Metal Workers'
refusal to handle the products of plants organized by the Machinists , Steelworkers,
or Auto Workers, it does not necessarily indicate the purpose of such a boycott to
be the organization of the employees in these plants rather than the promotion of the
competing products of Sheet Metal Workers plants or of unorganized plants whom
the Sheet Metal Workers might expect to have some reasonable chance of organizing
on the basis of such an appeal . Nor, on its face, need this same excerpt from
Reese's article be regarded as suggesting a concerted employee-refusal rather than a
Sheet Metal Workers' employer-refusal to handle non-Sheet Metal Workers'
products.
Finally, Reese's failure to disapprove or repudiate the reported actions of two
of his organizers in their direct dealings with the two Indianapolis manufacturers and
the one Chicago manufacturer shows that in these three cases the Respondent Inter-
national did attempt to organize "from the top down ," and that in two of these
instances ( Drying Systems and Jenn Air) its appeals to the employers were in sub-
stance based upon the pressure of a Sheet Metal Workers boycott of their products
unless they entered into contracts with the Sheet Metal Workers as the representative
of their respective employees . Furthermore , as the General Counsel states rat one
560940-61-voI. 127-106
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
point in his brief, all of this shows that the Sheet Metal Workers was "not averse"
to using such coercive organizational tactics upon employers on some occasions,
and thus tends to support the credibility of the General Counsel's evidence that the
Sheet Metal Workers did in fact bluntly bring such pressures to bear upon Burt in
their meetings in 1956 which are discussed in the next section of this report.
But, in the opinion of the Trial Examiner, this is the full extent of the significance
of the organizers' Indianapolis and Chicago reports and Reese's acceptance of them,
so far as the present case is concerned. The employees of each of the three em-
ployers mentioned in these reports were unorganized and the reports therefore do
not indicate that, contrary to Reese's testimony, the Respondent International was
in fact attempting to organize employees already represented by other international
unions affiliated with the AFL-CIO. Furthermore, in only two of the three instances
(Drying Systems and Jenn-Air) do the organizers' reports indicate boycott pressure
on the employer and in one of these two (Drying Systems), it appears to the Trial
Examiner from Reese's testimony that the reason for the pressure was not simply to
organize Drying Systems' employees but also to eliminate Drying Systems' and
Narrowitz' misleading practice of merging a nonunion oven and the Sheet Metal
Workers ductwork in a package bearing the Sheet Metal Workers label. Thus the
evidence furnished by the organizers' reports shows that only in the case of Jenn-Air
did the Respondent International's organizer exert boycott pressure upon the em-
ployer for the sole purpose of organizing the employees. Under the circumstances,
the Trial Examiner concludes that the evidence does not warrant any finding that, as
a general organizing technique during its campaign, the Sheet Metal Workers
omitted any attempt to organize the employees themselves, but went directly to the
employers and, using the threat, of continuing boycott, sought to compel the em-
ployers' assistance in organizing their employees and to recognize the Sheet Metal
Workers as bargaining representative.
Summary of Conclusions as to the Respondents' General Conduct Since 1946
In sum, the evidence as to the Sheet Metal Workers' general conduct in the 12-
year period since 1946 does not in itself indicate that the Sheet Metal Workeis was
using a product boycott under articles I and II of the SFUA for the purpose of
compelling Burt to recognize, and its employees to accept, the Sheet Metal Workers
as bargaining representative Thus, as has been found, the evidence shows that
articles I and II have generally been applied by the Sheet Metal Workers to the
products of all non-Sheet Metal Workers manufacturers and fabricators. Then,
too, there has been absolutely no attempt to organize Burt's employees by soliciting
them directly. Indeed, in this 12-year period, the only inquiry made by any Sheet
Metal Workers representative of any Burt employee as to the possibility of their
joining the Sheet Metal Workers, was the apparently perfunctory inquiry, with no
reference to the 'advantage of avoiding a boycott, which was made by Business
Agent Kidney of Griffiths, the president of the Steelworkers' Local in 1955, and that
inquiry was not thereafter pressed. Even when a group of Burt's employees asked
Business Agents Frost and Kenney about the possibility of their joining the Sheet
Metal Workers, the Sheet Metal Workers gave them no particular encouragement,
and thus failed to take advantage of that opportunity. Finally, upon analysis, the
evidence concerning the Sheet Metal Workers' organizational campaign in 1956 and
1957 is also insufficient to show any general pattern of objective and conduct on the
part of the Sheet Metal Workers involving the use of a product boycott for the
purpose of compelling direct recognition either by unorganized manufacturers and
fabricators or by manufacturers and fabricators whose employees, like Burt's, were
already represented by the Steelworkers or another AFL-CIO affiliate. If this, then,
is what the Sheet Metal Workers has been attempting to accomplish in the case of
Burt, the basis for such a particular finding can be found not in the Sheet Metal
Workers' general conduct, but only in statements allegedly made by the Sheet Metal
Workers representatives directly to Burt in 1946 and 1956, and to the Steelworkers
and the AFL-CIO's investigating committee in 1956 and 1957.
3. Statements made by the Sheet Metal Workers representatives
A number of references have already been made to the meetings of the Sheet
Metal Workers with Burt, with the Steelworkers, and with the AFL-CIO's executive
council and its special investigating committee. In addition to the evidence directly
concerning these meetings and the statements made by the Sheet Metal Workers in
the course of each meeting, the record contains two letters which are also relevant
to the issue of what the Sheet Metal Workers representatives said at these various
meetings. The first letter was written on December 16, 1955, by President Robert
SHEET METAL WORKERS INT'L ASSN., AFL-CIO, ETC. 1655
Byron of the Respondent International to District Director B. W. Ohler of the
Steelworkers, concerning the Sheet Metal Workers' desire to become the bargaining
representative of Burt's employees. The second letter was written on November 7,
1956, by President David J. McDonald of the Steelworkers to President George
Meany of the AFL-CIO and was the complaint which led to the Sheet Metal
Workers' meeting with the Steelworkers on November 13, 1956, and the Sheet Metal
Workers' appearances before the AFL-CIO executive council and its investigating
committee in February 1957.
The evidence concerning the Sheet Metal Workers' meetings with Burt, with the
Steelworkers, and the AFL-CIO's officials is in conflict as to many details. Running
through all this evidence as to each meeting is the main conflict as to whether the
Sheet Metal Workers demanded recognition as bargaining representative of Burt's
employees or said anything to indicate that their objective in refusing to install
Burt's products was to coerce recognition by Burt. This conflict is obviously not
susceptible to piecemeal resolution on a meeting-by-meeting basis. Therefore, the
evidence as to each meeting and the setting in which it occurred will first be sum-
marized without attempt to resolve any except minor conflicts. The main con-
flict, common to all the meetings, will then be considered and resolved in the light
of generally applicable considerations and background.
a. Meeting with Burt on October 1, 1946
The first of the meetings attended by the Sheet Metal Workers representatives
for the purpose of discussing the installation of Burt's equipment was held on or
about October 1, 1946, at the Akron office of Lisle Buckingham and Herman Rabe,
Burt's attorneys, who had requested and arranged the meeting. In addition to
Burt's two attorneys, the persons who participated were Business Agent William
Frost of Local 70, International Representative Joseph Frederick, President C. A.
Palmer, and Secretary (later vice president) F. C. Sawyer of Burt, and a Mr. Wolfe
of Huffman & Wolfe, a sheet metal contracting firm which had been engaged by a
mechanical contractor to install Burt ventilators in a General Electric plant then
under construction at Coshocton, Ohio. Huffman & Wolfe had a contract with
Local 98 containing the provisions of articles I and II of the SFUA, but sought
its mechanics on the Coshocton job from Local 70. It is undisputed that Local 70
had refused to supply the mechanics but that, on the day after the October 1 meeting,
Local 70 did agree to furnish the necessary men and the Coshocton job was there-
after completed. The evidence is in conflict, however, as to what was said by
Burt's and the Sheet Metal Workers' representatives at critical points in their
conversation during the October 1, 1946, meeting.
Buckingham opened the meeting by stating that its purpose was to resolve the
problem caused by Local 70's refusal to install the Burt ventilators on the Coshocton
job. International Representative Frederick said, in substance, that Huffman &
Wolfe was not living up to its contract, that the Sheet Metal Workers would not
install "scab" products and that any sheet metal products not made by the Sheet
Metal Workers were "scab." 14 Wolfe asked Frederick why his men were being
"bothered," when his firm had had a Sheet Metal Workers contract for many years
and was only installing equipment it couldn't affort to make in its own shop.
Frederick then said that Huffman & Wolfe could manufacture these items and
Wolfe replied that they would have to be manufactured by hand and would be
too expensive to compete "with the mass production methods as used by the Burt
Manufacturing 'Company." 15 Beyond this point, there are sharp differences be-
tween Sawyer's testimony and Frost's testimony as to what was said at this meeting.
Sawyer testified that, following his exchange with Wolfe, Frederick changed the
subject by asking when Burt's contract with the Steelworkers expired. According
to Sawyer, Buckingham said that the contract would expire "next spring," and
Frederick then told them, "Well, that is the time that you should take your men
out of the Steelworkers and put them over to the Sheet Metal Union." Still
according to Sawyer, Buckingham said that was impossible because of the Steel-
workers' certification. But Palmer nevertheless asked Frederick, "Well, what can
14 Frost testified that Frederick said Huffman & Wolfe was not complying with its con-
tract, although Sawyer could not recall such a statement. Sawyer testified that Frederick
referred to products which were not made by Sheet Metal Workers as being "scab,"
although Frost could not remember Frederick's use of that term.
15 The findings as to this exchange between Wolfe and Frederick are based upon
Sawyer's testimony. Frost could not remember whether Wolfe replied to Frederick's
charge that Huffman & Wolfe was not living up to its Sheet Metal Workers contract.
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we do about this matter of employee representation in our plant?" Sawyer testified
that: Frederick's answer was , "Well, you can shut your plant down, and after it
had been shut down for a while, you can pass the word out through the grapevine
that your men will have to join the Sheet Metal Workers and that would solve
the problem for you"; Frederick also said "that it would be necessary for The Burt
Manufacturing Company [to place its employees in the Sheet Metal Workers] or
they were going to a convention in Chicago, that Fall, and they were going to
pass a resolution saying that the Burt Manufacturing Company was unfair or on
the black list, and that they were going to pass this information out to all sheet
metal contractors and all the business agents throughout the country, ."; Palmer
asked, "What can we do to resolve the Coshocton job ?" and Frederick re-
plied, "Well, we can resolve that job for you for a consideration to us"; Palmer
said, "It is time for us to get out because we aren't paying anybody for the right
to do business"; and everyone but Frost and Frederick left the room. Sawyer
further testified that Frost and Frederick then recalled the others and that Frederick
told them "that if they did decide to settle or resolve this General Electric job
down in Coshocton, Ohio, that it would be the last time that they would make any
such settlement for the Burt Manufacturing Company, and that [Burt] would have
to get [its] men over into their organization, if [it] wanted to stop having these
troubles." Frost also stated that Local 70's executive committee was meeting that
night or the next morning and would notify Burt whether it would go ahead with
the Coshocton installation.
According to Frost, however, it was President Palmer of Burt who caused the
conversation to veer to a discussion of the possibility of Burt's employees being
transferred to the Sheet Metal Workers. Frost testified that: Palmer blamed Local
70 for not organizing Burt's employees and thus avoiding Burt's troubles; Frost
denied this, saying that at one time he had the applications of 63 of Burt's 80
employees and that it was Palmer's fault that the Steelworkers represented the
employees; Palmer replied, "Well, I didn't want no union but I sure got the one
I didn't want"; Palmer then asked Frost, "What can we do to straighten this matter
out?"; and, in answer to this, Frederick said "he couldn't see just what could be
done" but asked when the Steelworkers' contract expired, and said "something about
future conditions in the shop." Frost admitted, "I'm not just sure what [Frederick]
did say." He did not recall whether there was any discussion of the possibility of
closing down the plant and laying off employees, but did recall that there was some
discussion about passing word along the grapevine to have Burt's employees join
the Sheet Metal Workers. He denied that there was any mention of a "blacklist."
Finally, when asked on cross-examination whether he recalled Burt's people walking
out of the room when there was a reference to "consideration," Frost said he re-
called their walking out only to give Wolfe, Frederick, and himself time to discuss
a solution on the Coshocton job, and that Frederick had used the word, "considera-
tion," only in asking Burt's people whether, "if the [Coshocton] job were re-
leased, . . . consideration would be given to the Sheet Metal Workers in the future
to see if we could straighten the plant out... .
b. Letter of President Byron to District Director Ohler, December 16, 1955
Following the October 1946 meeting, Burt continued to have difficulties in
getting its equipment installed but, although Sawyer complained to various Steel-
workers representatives, including Allie Whitehouse who became the AFL-CIO's
director of industrial unions, Burt's officials had no contacts with any Sheet Metal
Workers representatives until August 1956.
In 1955, the Steelworkers apparently complained to President George Meany of
the AFL-CIO because Business Agent Frost of Local 70 had raised some questions
as to the installation of Burt ventilators on a Medina high school job. Frost released
the job after conferring with the contractor, and, on December 16, 1955 (within
2 weeks after the AFL-CIO merger had taken place), President Robert Byron of
the Respondent International wrote District Director B. W. Ohler of the Steel-
workers the following letter:
We have received copy of your telegram addressed to President Meany
relative to the High School job at Medina, Ohio, where the Burt Manufactur-
ing Company is furnishing sheet metal ventilators. This company has been
non-union for our organization for many years and we have tried a number
of times to organize them, but to no avail.
We did not know that the Steel Workers had an agreement with the Burt
Manufacturing Company, so called our Business Representative Frost to re-
lease the job. We hope in the near future when your agreement with this
company expires, that with your help we may be able to put them into our
SHEET METAL WORKERS INT'L ASSN., AFL-CIO, ETC. 1657
organization, where they belong, as our fair contractors cannot compete with
them . Their scale is at least one dollar per hour less than the sheet metal
workers' scale.
We hope, with the merger, that all of us can work together closer to
straighten out some of the firms which have been giving us a hard time.
Again, if they used our labor we know it would increase their business.
c. Akron meetings with Steelworkers in first half of 1956
During the first 6 months of 1956, there were two meetings in Akron between
representatives of the Steelworkers, representatives of the Sheet Metal Workers,
and various officials connected with the Akron CIO Council and the AFL Building
Trades Council. The Sheet Metal Workers representatives at both meetings were
Business Agents Frost and Kenney of Local 70. District Representative John
McKendrick appeared for the Steelworkers and had made the contact with the
executive secretary of the AFL Council which led to the meetings.
At the first meeting which was held at the Heidelberg Restaurant, McKendrick
asked Frost and Kenney whether they would agree to install Burt's ventilators.
Frost said that the Sheet Metal Workers was expecting its contractors to live up to
the contracts which did not permit them to erect work unless it was fabricated in a
Sheet Metal Workers shop. The meeting apparently ended with a discussion of the
possibility of submitting the problem to an AFL-CIO "Jurisdictional committee"
which was to be set up in Washington. McKendrick asked Frost for a "truce"
until the committee could act, but Frost gave no answer.
The second meeting was held a month or so later, at Papa Joe's Restaurant.
After a discussion similar to the one at the first meeting, McKendrick asked Frost
whether the problem would be solved if the Steelworkers "were willing to give the
Sheet Metal Workers the Burt Manufacturing local." McKendrick, Kenney, and
T. C. Dethloff (an AFL-CIO field representative) all testified that this question
was put to Frost (and the Trial Examiner so finds) although Frost testified that
he did not hear it. According to McKendrick, Frost's answer was "Yes " Kenney
and Dethloff both testified, however, that the question was not answered because the
other men intervened with a reminder that a proposal of that sort required action
on the national level rather than on the local level. On this state of the record,
the Trial Examiner finds that there was no answer given to McKendrick's question.
d. Meeting with Burt in August 1956
Following the merger of the AFL-CIO in December 1955, Sawyer instructed his
salesmen to inform Burt's customers that the merger would solve the installation
problem. Instead, the record shows that, in a number of instances, the Sheet Metal
Workers or its Locals continued to refuse to supply men for the erection of venti-
lators made by Burt or other manufacturers with whom the Sheet Metal Workers
had no contracts. In one such instance in July 1956, Local 98 refused to supply men
for the unloading of 16 or 17 carloads of Burt's equipment for a Ford plant job
at Lima, Ohio.
On or about August 1, 1956, Sawyer went to Washington at the suggestion of
Allie Whitehouse, the AFL-CIO's director of industrial unions, and asked Peter
McGavin, assistant to President George Meany, of the AFL-CIO, for help in
getting installation on the Lima job. One of McGavin's duties was to settle dis-
putes between international unions affiliated with the AFL-CIO and Whitehouse
had already spoken to him about Burt's problem in getting its products installed by
the Sheet Metal Workers. Sawyer told McGavin that the Steelworkers was the
certified representative of Burt's employees, that Burt had had trouble getting the
Sheet Metal Workers to install its products "for many years," and that it was still
having trouble although it was Burt's "understanding that with the merger of the
AFL-CIO . . . [Burt] would no longer have that problem" because, with the
merger, "there was not to be an exchanging [of members] or raiding of unions."
McGavin said that article III, section 4 of the AFL-CIO constitution did forbid
exchanges or raids and that neither Burt nor the Sheet Metal Workers could take
Burt's employees out of the Steelworkers and put them into the Sheet Metal
Workers.16 Upon Sawyer's request, McGavin called in Frank Bonadio, one of the
"The foregoing findings as to Sawyer's and McGavin's conversation are based upon a
composite of consistent testimony given by these men. Sawyer further testified that
McGavin also told him that McGavin had already informed the Sheet Metal Workers
there could be no raid or exchange of Burt's employees. McGavin denied this and the
Trial Examiner credits his denial.
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-Respondent International's vice presidents and also secretary of the AFL-CIO's
Building Trades Department, and asked Bonadio to arrange a meeting between
Sawyer and President Robert Byron of the Respondent International.
Upon Bonadio's arrangement, Sawyer and Bonadio met with Byron and Secretary
'Carlough of the Respondent International that same afternoon in Byron's office,
and discussed the Lima job and the general problem of the Sheet Metal Workers'
refusals to install Burt products. Of the three men, only Byron did not testify.
The testimony of Sawyer and that of Carlough and Bonadio differed sharply as
to what was said at this meeting.
Sawyer testified that: Byron said that until Burt took its men out of the Steel-
workers and put them over to the Sheet Metal Workers, Burt would have trouble;
Byron then asked when the Steelworkers' contract expired; Sawyer said it would
expire the following spring; Byron said that was the time to transfer the men to
the Sheet Metal Workers; and Sawyer replied that, according to McGavin, Burt
could not do this even if it wished, because the AFL-CIO constitution forbade
exchanges or raiding. Sawyer further testified that: He asked Byron why the
Sheet Metal Workers was "picking on" Burt more than, for example, H. H. Robin-
son, another non-Sheet Metal Workers manufacturer; Byron replied, in substance,
that Burt, as a quality and volume producer, was chosen as a special example to
convince other manufacturers that they should also "belong" to the Sheet Metal
Workers; and Carlough added that, when he had been "Director of the New York
District," he had never permitted the installation of Robinson's equipment. Finally,
Sawyer testified that, to his specific question as to what could be done about the
Ford Lima job, Byron and Carlough said they would let him know, and that
Byron added, "If you put your men into our union, we will double your business
for you."
Carlough testified that: Byron said he knew Burt; 35 or 40 years ago he had
been "escorted out" or "put out" by Burt, while trying to organize the employees;
Sawyer said Burt was having trouble with a Sheet Metal Workers local which had
refused to unload equipment on the Ford Lima job; Byron said he would check and
see what could be done about it; Sawyer asked why the Sheet Metal Workers was
picking on Burt; Carlough said they were not picking on any company but only
wanted "our contractors" to live up to the SFUA; Sawyer said he had to protect
his firm; Carlough said that, on behalf of the Sheet Metal Workers, he "was going
to protect the Standard Form of Agreement and our people"; Sawyer asked, "What
about our people" and Carlough replied that he did not care about Burt's people,
that he was "worrying about [his] people and the job opportunities," and that every
time a Sheet Metal Workers employer lost a contract, "our people either get laid
off or lose work."
Carlough further testified that Sawyer then said, "Well, I see I'm in the wrong
union"; Carlough replied that he couldn't help that, because the men had made
the choice of the union they wanted; Sawyer again charged the Sheet Metal Workers
with "picking" on Burt and suggested that the Robinson Company, also a non-Sheet
Metal Workers manufacturer, was not treated the same way; Carlough replied that
Robinson was in the same situation as Burt and that he did not remember Robinson
"ever coming into the City of New York while I was there"; Sawyer then said he
was advised by counsel what he could do; and Carlough told Sawyer "to do the
best that you can and we are going to do the best we can for the people that we
represent."
Bonadio corroborated Carlough as to the substance of this conversation. He
further testified that when Sawyer commented that he was apparently in the wrong
union, he added that he had just signed a 2-year contract with the Steelworkers but
wished he had a contract with the Sheet Metal Workers. According to Bonadio,
Carlough replied, "How the hell can we do anything about that?" Bonadio also
testified that, during the conversation, Sawyer said he believed that the AFL-CIO
merger had wiped out jurisdictional lines, and that Burt could solicit contracts with
anybody, including contractors who had SFUA's with the Sheet Metal Workers.
With respect to Sawyer's testimony, Bonadio testified that he did not recall, but
Carlough specifically denied, that Byron told Sawyer Burt would have trouble until
it took its men out of the Steelworkers and put them into the Sheet Metal Workers.
Carlough also denied that he suggested a contract between Burt and the Sheet
Metal Workers. Finally, Carlough and Bonadio testified that nothing was said
even to suggest taking Burt's employees out of the Steelworkers into the Sheet
Metal Workers, except for Sawyer's comments that he was apparently in the
wrong union.
SHEET METAL WORKERS INT'L ASSN., AFL-CIO, ETC. 1659
e. Meeting with Burt in late October 1956
In the latter part of October 1956, Sawyer again visited McGavin at the latter's
office in Washington, and told McGavin that Burt was still having trouble getting
its ventilators installed and that he had just been notified of the cancellation of an
order for a Chrysler Stamping Plant job at Twinsburg. McGavin thereupon asked
Carlough over the telephone to meet with Sawyer in McGavin's office. Carlough
expressed reluctance but agreed to come, and did come, as a favor to McGavin.
There is disagreement in the testimony as to whether McGavin stayed in his office
during the entire conversation between Sawyer and Carlough. Cailough testified
that McGavin was there with them all the time; McGavm could not remember
whether he was present throughout the conversation; and Sawyer at first testified
that McGavin left the office shortly after Carlough came, then that he could not
remember whether McGavin left the office or was in and out; and finally, that
McGavin left the office before he and Carlough got into their discussion.
Sawyer testified that: McGavin told Carlough he wanted Carlough to discuss the
Sheet Metal Workers-Burt problem with Sawyer to see whether it could be resolved;
Sawyer said that Burt had hoped the AFL-CIO merger would settle their troubles
but that they had gotten worse; Carlough said that the Sheet Metal Workers was
going to insist that every single ventilator and sheet metal product which their men
installed was made in a Sheet Metal Workers shop and bore the Sheet Metal
Workers label; Sawyer criticized the Sheet Metal Workers' calling Burt ventilators
"scab" and "nonunion" when they were made by members of the Steelworkers;
Carlough said, "If you want to get out of your problem, . . . then you will have to
take your men out of the Steelworkers and put them over into the Sheet Metal
Workers"; Sawyer again said that, according to McGavin, that was impossible in
view of the AFL-CIO constitutional provision against exchanging or raiding union
members; and Carlough said that the Sheet Metal Workers was standing on articles
land II of the SFUA.
Carlough testified that: After McGavin's request that Carlough see if he could
do something for Sawyer about getting Burt's work erected, Sawyer said his sales-
men were not getting any contracts because the Sheet Metal Workers was "tight"
in the enforcement of its agreements with installers; Carlough said the Sheet Metal
Workers had nothing against Burt but was insisting on observance of the SFUA
because loss of work meant his people would be laid off and be out of work;
Sawyer said that one of the important dates in his life was December 5, 1955, when
the AFL-CIO merged and he thought it "would end everybody's troubles. Every-
body would erect everybody's work"; Carlough replied Sawyer was mistaken if he
thought that all agreements would be torn up; Sawyer again said "that he could
see he was in the wrong union"; and Carlough then said, in McGavin's presence,
"that you and I can do nothing about that, that is the choice of the people that
want the union." Carlough denied that Sawyer said the AFL-CIO's constitution
prevented the transfer of Burt's employees to the Sheet Metal Workers, or that
McGavin had so informed Sawyer.
McGavin testified that in this conversation Carlough insisted that under the
Sheet Metal Workers' contracts with installers, the contracting employer was re-
quired to install only his own product or the products of another Sheet Metal
Workers shop. McGavin further testified that, although he did not recall anything
else that was said during the discussion in his presence, he did not, then or ever, hear
Carlough say that the only way the problem could be resolved would be for Burt
to place its Steelworker-employees in the Sheet Metal Workers union.
f. The Steelworkers' complaint to the AFL-CIO
On November 7, 1956, President David J. McDonald of the Steelworkers wrote
to President George Meany of the AFL-CIO, complaining of the Sheet Metal
Workers' repeated refusals to install Burt's equipment. In the course of this letter,
McDonald made references to Sheet Metal Workers' President Byron's December
1955 letter which had given the Steelworkers "hope" that the AFL-CIO merger
would end the boycotts and also to later incidents (including the most recent refusal
on the Chrysler job) which showed this "hope" to be a "delusion." The letter fur-
ther stated:
I want to emphasize that this [the Sheet Metal Workers' refusal to install
Burt's equipment on the Chrysler job] is not merely an isolated case in which
a zealous but misguided local union has sought to advance its interests by
illegitimate means. It does not involve any dispute over the allocation of
work on the site. It does not involve any claim that the employees of Burt
1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are displacing construction workers. What we have here is only the most
recent episode in a deliberate and persistent course of action, which the Sheet
Metal Workers' International Association has engaged in with full knowledge
of the facts. Its effect, plain to all, will ultimately be to drive the Burt Manu-
facturing Company out of business, unless the Steelworkers who represent the
employees agree, in the words of the General President of the Sheet Metal
Workers, "to put them into our organization."
The AFL-CIO Constitution provides that each affiliate "shall respect the
established collective bargaining relationship of every other affiliate." Indi-
vidual, isolated violations of this provision may perhaps be solved in the man-
ner in which our previous complaints of violation of the Constitution have been
treated in the past. But where an International Union affiliated with the
AFL-CIO, with the full knowledge of the facts, adopts a deliberate and per-
sistent policy apparently covering all employers in its jurisdiction who install
these products, in violation of the Constitution of the AFL-CIO, I believe
sterner measures are necessary. To deal with these cases as isolated instances
is to ignore as blatant a violation of the Constitution as it is possible to
conceive.
I charge that the Sheet Metal Workers International Association has deliber-
ately, knowingly, and with malice aforethought, engaged in a planned course of
conduct in open defiance of the AFL-CIO constitution and the fundamental
principles upon which our Federation rests. This is a matter of concern not
only to the Steelworkers. It is a matter of concern to all Unions which accept
the AFL-CIO Constitution as the basis of our relationship.
I recognize the gravity of this charge. Therefore, I urgently request that
unless the Sheet Metal Workers promptly agree to cease and desist from all
boycotts of the products of the Burt Mfg. Company, the Executive Council
of the AFL-CIO be called into immediate session so that appropriate action
may be taken under Article III, Section 4, of the Constitution.
g. Meeting between the Steelworkers and the Sheet Metal Workers on
November 13, 1956
On November 13, 1956, representatives of the Steelworkers and the Sheet Metal
Workers met at the office of the AFL-CIO in Washington, with Peter McGavin
and R. J. Thomas, both of whom were administrative assistants of President Meany
of the AFL-CIO. The meeting was held at the request of the Steelworkers to permit
an attempt to adjust the differences between them and the Sheet Metal Workers
which had been referred to in President McDonald's letter to President Meany of
the AFL-CIO. Provision for such an attempt before submission of the problem
to the Executive Council is made in article III, section 4 of the AFL-CIO con-
stitution.
President Byron and Secretary Carlough attended this meeting for the Sheet Metal
Workers. Among those present for the Steelworkers were Attorney David Feller,
District Director Bert Ohler, International Representative McKendrick, President
Ryder of the Steelworkers' Local at Burt's plant, and John Brownlee, an international
representative in the Steelworkers' legal department. McGavin, McKendrick,
Ryder, Brownlee, and Carlough testified concerning what happened at this meeting.
The Steelworkers' complaint was presented at the meeting by a reading of
President McDonald's letter of November 7. In the discussion which followed,
Feller complained that, by refusing to install Burt's ventilators, the Sheet Metal
Workers was refusing to recognize the Steelworkers' right to represent Burt's em-
ployees under the Steelworkers' charter, and was causing the Steelworkers' members
to lose work. Byron and Carlough said that the Sheet Metal Workers was merely
insisting that sheet metal employers comply with their contracts with the Sheet
Metal Workers which required them to install only products manufactured in Sheet
Metal Workers shops; that their AFL charter, as well as the contracts, justified the
Sheet Metal Workers' position; and that the lower wage rates paid to Burt's employees
were hurting the Sheet Metal Workers' members. Feller asked whether the Sheet
Metal Workers would be satisfied if the Steelworkers secured the same wage rates
for Burt's employees, and Carlough said "No," that the Sheet Metal Workers would
insist on the Sheet Metal Workers employers living up to their contracts. As to all
of this, and the fact that the meeting produced no solution of the problem, there
was no disagreement in the testimony of the witnesses.
The witnesses disagreed, however, as to what, if anything, was said at this meeting
about the Sheet Metal Workers "raiding" the Steelworkers' membership at Burt,
SHEET METAL WORKERS INT'L ASSN., AFL-CIO, ETC. 1661
or about the possibility of the Steelworkers' turning over its membership among the
Burt employees to the Sheet Metal Workers. In giving their versions of the meeting
during the General Counsel's case-in-chief, neither McKendrick nor Ryder referred
to anything being said on these subjects. Although, as we have seen, McKendrick
had earlier asked Frost of Local 70 about the possible transfer of the Steelworkers'
membership and might therefore reasonably be expected to remember whether the
subject again came up at the November meeting in Washington, he testified that the
only indication given by Byron or Carlough as to how they felt about the possi-
bility of the Sheet Metal Workers representing Burt's employees, was supplied by
their statements that the Sheet Metal Workers' charter gave them jurisdiction over
sheet metal work. McGavin, who was called as a witness by the Respondents, also
testified that, to the best of his knowledge, there was no discussion of the Sheet
Metal Workers' "raiding" or attempting to take over the representation of Burt's
employees, but that the discussion was limited to the Steelworkers' protest that the
Sheet Metal Workers' conduct was causing a loss of income to the Steelworkers'
members and their employers. On the other hand, both Carlough and Brownlee
(who was called by the General Counsel on rebuttal) agreed that Feller produced
a copy of Byron's December 1955 letter to District Director Ohler of the Steel-
workers, and that there was then a discussion of what Byron had meant. Carlough
and Brownlee disagreed sharply, however, as to the substance of this discussion.
According to Carlough, Feller accused the Sheet Metal Workers of "raiding" the
Steelworkers' membership and Carlough replied that the Sheet Metal Workers did
not want the Steelworkers' members. Carlough further testified that: Feller there-
upon produced Byron's letter and asked what it meant; that Carlough had never
seen the letter and "nearly fell off the chair" when he read it at the meeting; that
Carlough told Feller that he could "see nothing bad in this letter. Mr. Byron was
under the impression that since the mergers were together that we all sit down
and talk the thing over. That is the only thing that he must have on his mind. I
can't see anything else but that in his mind"; Byron also said that, in writing the
letter, "He wanted to be friendly and talk with the Steelworkers. He didn't think
nothing about the letter because the [AFL-CIO] constitution said you can merge
and get together"; and Carlough again told Feller that "We don't want your people."
On cross-examination, Carlough denied that Feller asked him or Byion, "What you're
asking us is that we turn over the membership of the Burt plant to you and that
would solve the problem, wouldn't it?"
Brownlee testified that: Feller asked Byron, "Is it your position that if we should
turn the membership of our union, of the Burt Manufacturing to you, that would
settle this thing?"; Byron said, "Yes"; Feller then asked, "Well, then your position
now is the same as it was . when you wrote this letter to Bert Ohler?"; Byron
again said "Yes"; Feller asked Carlough what Carlough's position was; Carlough said,
"I don't see anything wrong with that letter"; Feller asked Carlough whether he
agreed with Byron; and Carlough said, "Yes. But I wouldn't have written that
letter."
h. Meeting of the Executive Council of the AFL-CIO and the visit of its investigating
committee to the Burt plant in February 1957
The AFL-CIO Executive Council considered the Steelworkers' complaint at a
meeting in Miami, Florida, in February 1957. President Byron appeared before the
Council on behalf of the Sheet Metal Workers, as did Vice President Frank Bonadio
who substituted for Carlough because of illness in Carlough's family. The only
evidence as to what happened at this meeting was given by Bonadio.
President McDonald of the Steelworkers read a complaint. In substance, the
charges presented by him were to the effect that, by refusing to install Burt's products,
the Sheet Metal Workers was hurting But and interfering with the Steelworkers'
bargaining rights. Bonadio said that the Sheet Metal Workers had no quarrel with
the Steelworkers nor with Burt but were simply requiring their contracting employers
to live up to their contracts with the Sheet Metal Workers. Byron also spoke, and
he and Bonadio answered questions about the sheet metal industry, the training of
sheet metal worker apprentices, and the necessity of a "protective clause" in the
Sheet Metal Workers agreements. Although Bonadio testified that there was no
discussion of the Sheet Metal Workers' jurisdiction, he asserted that Byron and he
"made it clear that we were chartered by the American Federation of Labor many
years ago before the CIO, of course, and that we were given jurisdiction over sheet
metal products 10 gauge or lighter." At the end of the meeting, the Executive Council
appointed a special committee consisting of President Meany and Vice Presidents
George Harrison and Joseph Bierne to investigate the problem.
1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The special committee visited the Burt plant in February 1957, with Steelworkers
representatives and Sheet Metal Workers representatives including Secretary Car-
lough. Sawyer testified without contradiction, and the Trial Examiner finds, that
Carlough said to President Meany while they were in one of Burt's departments,
"This is the type of work that we do. This is all the work that our Sheet Metal
employers do."
Findings and Conclusions as to Statements Made by Sheet Metal Workers'
Representatives
The Trial Examiner finds nothing in the evidence concerning the Akron meetings
between the Sheet Metal Workers and the Steelworkers in early 1956, the appearance
of President Byron and Vice President Bonadio before the AFL-CIO's Executive
Council, or Secretary Carlough's statement to President Meany of the AFL-CIO at
Burt's plant in February 1957, which would indicate that the Sheet Metal Workers'
objective in refusing to install Burt's products was to compel recognition by Burt as
bargaining representative of Burt's employees rather than merely to protect and
advance the economic interests of the craftsmen whom the Sheet Metal Workers
represented under contracts with other employers.
There remains for consideration only the major conflicts in the evidence which
relate to the meetings between Burt's officials and various Sheet Metal Workers
representatives in 1946 and in August and October 1956, and to the meeting between
the Steelworkers representatives and the Sheet Metal Workers representatives on
November 13, 1956. In spite of the detail in which this evidence was necessarily
given, the conflicts are rather simple and few.
F. C. Sawyer, vice president of Burt, testified in essence that in each of the three
meetings arranged by Burt and held on October 1, 1946, in Akron and in August
and October 1956 in Washington, the Sheet Metal Workers representatives told
Burt's officials that Burt would have trouble getting its equipment installed as long
as its employees were not represented by the Sheet Metal Workers and that Burt
should therefore get its men over into the Sheet Metal Workers on the expiration
of its conrtact with the Steelworkers. This was denied by Business Agent Frost of
Local 70 who was in the 1946 meeting, and by Secretary Carlough who was in the
two meetings in 1956. According to the testimony of Frost and Carlough, the Sheet
Metal Workers told Burt in substance in each of these three meetings that they were
applying articles I and II of the SFUA to protect the economic interests of the
men they repreesnted, and Burt expressed regret that its employees were represented
by the Steelworkers rather than the Sheet Metal Workers. Frost testified that, at this
point in the 1946 meeting, Burt asked what could be done and that, although the
Sheet Metal Workers representative at first said he did not know what could be
done, there was some discussion of passing word along the grapevine to the Burt
employees that they should join the Sheet Metal Workers on the expiration of the
Steelworkers contract. Carlough testified that in the 1956 meetings nothing was
said even to suggest taking Burt's employees out of the Steelworkers and into the
Sheet Metal Workers except for Sawyer's comments in each meeting "that he could
see that he was in the wrong union," and that Carlough, in reply, said nothing could
be done about that.
Carlough's testimony as to what happened in the August 1956 meeting was cor-
roborated by Vice President Frank Bonadio of the Respondent International. Other-
wise, Sawyer's, Frost's, and Carlough's testimony as to these meetings between Burt
and the Sheet Metal Workers was uncorroborated. Indeed, these three men and
Bonadio were the only persons who did testify concerning the material substance
of these meetings 17 although in several of the meetings there were other important
participants whose testimony would have been helpful and whose failure to testify
was unexplained. Thus it appears from Sawyer's and Frost's testimony that President
C. A. Palmer of Burt and International Representative Joseph Fredericks were
actually the spokesmen for the respective parties in the 1946 meeting, and, from
Sawyer's, Carlough's, and Bonadio's testimony, that President Robert Byron of the
Respondent International participated in the August 1956 meeting. Furthermore,
17 There is some question as to whether Peter McGavin, assistant to AFL-CIO President
George Meanv, was present during the material portion of the conversation between
Sawyer and Carlough in the October 19'56 meeting, which was arranged by McGavin and
held in his office Carlough testified that McGavin was there throughout the meeting;
Sawyer, that McGavin left his office shortly after Carlough and Sawyer met , and McGavin,
that he may have left his office. In any event, McGavin testified that he could not
remember hearing any of the material statements charged by Sawyer to Carlough, nor
those charged by Carlough to Sawyer.
SHEET METAL WORKERS INT'L ASSN., AFL-CIO, ETC. 1663
according to Sawyer, it was Byron who stated the Sheet Metal Workers' position at
this meeting.
The meeting of November 13, 1956, was held under AFL-CIO auspices in Wash-
ington between the Steelworkers representatives and President Byron and Secretary
Carlough of the Respondent International, in what turned out to be an unsuccessful
attempt to solve the problem raised by the Steelworkers' complaint to the AFL-CIO
that the Sheet Metal Workers was violating article III, section 4 of the AFL-CIO
constitution by refusing to install Burt's products. In spite of the omission of any
testimony on the particular point by any of the witnesses during the General Counsel's
case-in-chief, it appears clear from Carlough's testimony and the testimony of John
Brownlee, a member of the Steelworkers staff who was called by the General Counsel
on rebuttal, that the letter which had been written by Byron to Steelworkers District
Director B. W. Ohler on December 16, 1955, prompted a discussion of whether the
Sheet Metal Workers was "raiding" the Steelworkers' membership at Burt.
There was a sharp conflict in the testimony as to the position taken by
Byron and Carlough when confronted with this letter at the November 13, 1956,
meeting. Brownlee testified in substance that Byron, in answer to specific questions
put to him by the Steelworkers attorney at this meeting, said that in accordance with
the position stated by him in the letter, it was his position that a turnover of the
Steelworkers members at Burt to the Sheet Metal Workers would settle the problem
raised by the Sheet Metal Workers' refusal to install Burt's products, and that Car-
lough agreed. Carlough, on the other hand, denied that he or Byron made any such
statements and testified that, on being asked at the meeting to explain the meaning
of Byron's letter, he said that he had not seen it before the meeting and that the
Sheet Metal Workers did not want Burt's people; and that both he and Byron ex-
plained that the letter was simply an inquiry made to the Steelworkers about the
possibility of a "merger" or adjustment, which were permissible under the AFL-CIO
constitution. As noted, Byron did not testify.
If resolution of the conflicting versions of these conversations were dependent
alone upon an evaluation of the credibility of the opposing witnesses on the basis
of demeanor and the internal consistency of the testimony of each of them, the
Trial Examiner would find it impossible to make a reasonable choice. But, of course,
each of the opposing versions must also be appraised in the light of the support or
lack of support it receives from the rest of the record.
Although for 12 years the Sheet Metal Workers made no attempt to organize Burt's
employees and met with Burt's officials only on the three occasions when Burt re-
quested them to do so, Sawyer's testimony that the Sheet Metal Workers took the
opportunity afforded by these meetings to demand representation of Burt's employees
as the price of permitting installation of Burt's products, appears plausible against
the background of:
(1) The Sheet Metal Workers' 1944 attempt to organize Burt's employees;
(2) The Sheet Metal Workers' continuance of their boycott of Burt's products
since that time;
(3) The statements made by President Byron in his letter to Ohler less than a
year before the 1956 meetings with Burt to the effect that the Sheet Metal Workers
had tried to organize Burt a number of times and hoped, with the Steelworkers' help,
"to put them into our organization where they belong";
(4) The initiation by the Sheet Metal Workers of their organizational campaign
about the time of their meetings with Burt, with emphasis upon organizing manu-
facturing employees;
(5) The Sheet Metal Workers' admitted emphasis upon the value of the right to
use the Sheet Metal Workers label, in soliciting employees in unorganized manufac-
turing plants during this organizational campaign;
(6) Director Reese's instructions to the organizers that in some instances they
should contact unorganized employers directly and then make known to the em-
ployees the favorable attitudes of the employers to the Sheet Metal Workers' organiza-
tion of their plants;
(7) Reese's failure in three instances to disapprove his organizers' reportedly
contacting unorganized employers directly and securing their aid in "advising" or
"convincing" their employees to join the Sheet Metal Workers; and
(8) Reese's failure to disapprove his organizers' reportedly securing the aid of
the employers in two of these three cases, by telling one of them that use of the
union label depended upon the complete organization of his plant, and the other,
that if another union organized his plant, it would "ruin the Company" because of
"what could happen to their products from an International standpoint."
On the other hand, there are facts shown by the record which substantially tend
to support the version of the Respondents' witnesses to the effect that in the Sheet
Metal Workers' meetings with Burt they insisted that they were merely applying
^1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
existing contract provisions for the protection and advancement of the economic
=interests of the craftsmen they represented, that they expressed indifference to the
effect of this upon Burt and its employees, and that they did not demand or invite a
,transfer of Burt's employees to the Sheet Metal Workers, although Burt hinted that
it would welcome such a possibility. Tending to support this version of the meetings,
the record shows:
(1) The uniform application by the Sheet Metal Workers of the boycott under
articles I and II of the SFUA to the products of all non-Sheet Metal Workers
manufacturers and not merely to the products of Burt and certain other
manufacturers.
(2) The fact that a prime objective, if not the only objective, of the Sheet Metal
Workers in applying articles I and II was the protection and advancement of the
economic interests of the craftsmen whom they represented.
(3) The absence of any direct attempts by the Sheet Metal Workers to organize
Burt's employees for more than 12 years.
(4) Local 70's failure to give any real encouragement or assistance to the group
of Burt's employees on their 1954 visit to Local 70's office.
(5) The fact that the Sheet Metal Workers never attempted to contact Burt and
that the only meetings between them were sought by Burt, which not only tends
to indicate a lack of interest on the part of the Sheet Metal Workers, but also
distinguishes the situation in the present case from the few instances reported to
Reese of organization "from the top down."
(6) The fact that, since December 1955, the AFL-CIO's constitution has pro-
hibited the "raiding" of another affiliate's membership-a fact which the Respond-
ents argue makes it unlikely that the Sheet Metal Workers would have bluntly
attempted to negotiate such a "raid" of the Steelworkers' membership in the 1956
meetings, particularly since both of these meetings were arranged by an assistant
to the president of the AFL-CIO, one was held in his office, and in both meetings,
according to Sawyer, he reminded the Sheet Metal Workers' people of this
prohibition.
Upon consideration of those of the foregoing factors in the record generally
supporting the General Counsel's version of the meetings between the Sheet Metal
Workers and Burt, and those generally supporting the Respondents' version, the
Trial Examiner has concluded that their significance is limited to the 1956 con-
versation and is of no help in resolving the conflict as to the 1946 conversation.
The Trial Examiner has therefore concluded that the evidence does not preponderate
in favor of Sawyer's testimony that Frederick, the Sheet Metal Workers representa-
tive, initiated a discussion of the possibility of Burt's recognizing the Sheet Metal
Workers as bargaining representative by demanding a transfer of Burt's men to
the Sheet Metal Workers when the Steelworkers' contract expired. Instead, the
Trial Examiner finds, in accordance with Frost's testimony, that: President Palmer
of Burt complained because the Sheet Metal Workers had not organized its em-
ployees and enabled Burt to get its equipment installed; Palmer asked what could
be done about it; and although Frederick first said he could not see what could
be done, he then suggested that in the future, when the Steelworkers' contract
expired, Burt could pass the word to its employees to join the Sheet Metal Workers.
However, although it is thus found that Frederick did suggest that Burt might
influence its employees to transfer to the Sheet Metal Workers and thereby solve its
installation problem, the Trial Examiner does not regard this as furnishing any
indication of the Respondents' objective in refusing to install Burt's products either
at that time or since that time, in view of the facts that Frederick's suggestion was
made at Palmer's request, that in 1946 such a suggestion by a union was not illegal,
and that for the following 10 years the Sheet Metal Workers showed no interest in
organizing Burt's employees or compelling recognition by Burt.
However, with respect to the evidence as to the 1956 meetings between Burt and
the Sheet Metal Workers, the situation is quite different. The weakness of the
Respondents' case and the strength of the General Counsel's and Burt's case con-
cerning these meetings lies in Byron's letter of December 16, 1955, and his non-
appearance as a witness to explain what he meant by this letter. All we have in
the record on this point is Carlough's testimony that, at the meeting on November
13, 1956, with the Steelworkers, both he and Byron explained the letter as being
merely a friendly inquiry to the Steelworkers concerning the possibility of talking
over the Burt problem and reaching some solution or adjustment permitted under
the AFL-CIO's constitution. And, in their briefs, counsel for the Respondents
characterize the letter as a courteous communication in the course of union business,
having no significance in the present case since it was apparently never acted upon
SHEET METAL WORKERS INT'L ASSN., AFL-CIO, ETC. 1665
and represented the sentiment of only one man rather than that of the Sheet Metal
Workers.
The Trial Examiner disagrees with the Respondents. On its face, Byron's letter
indicates that the Sheet Metal Workers wanted to take over the representation of
Burt's employees and was relying upon the boycott as a means of attaining this end.
Although it appears from the record that Byron is a man in his late seventies and
there are intimations that Carlough, a younger man who testified that he knew
nothing of the letter, was perhaps more active in the Sheet Metal Workers' present
day-to-day operations, Byron was and still is the president of the Respondent In-
ternational, is regarded by Carlough as "the boss," and his statements must there-
fore be taken as expressing the position of the Sheet Metal Workers. Furthermore,
Byron's letter is important not simply as an isolated expression of the Sheet Metal
Workers' objective with respect to Burt's employees, but also as a strong indica-
tion that Byron and Carlough as the Sheet Metal Workers' representatives took the
same position in their 1956 meetings with Burt and the Steelworkers, which took
place within a year after Byron wrote the letter. Thus the inferences reasonably
drawn from the contents of Byron's letter support the testimony of the General
Counsel's witnesses that, in the August 1956 meeting, Byron told Sawyer in Car-
lough's presence that Burt should get its men over into the Sheet Metal Workers
in order to get its equipment installed; that, in the October 1956 meeting with
Sawyer, Carlough followed Byron's lead and took the same position; and finally
that in the November 13, 1956, meeting with the Steelworkers, both Byron and
Carlough admitted that it was the Sheet Metal Workers' position that a transfer of
Burt's employees to the Sheet Metal Workers would solve Burt's installat;on problem.
Carlough's testimony alone is not sufficient to overcome the combined weight
of the direct testimony of the General Counsel's witnesses to this effect and the
supporting inferences reasonably drawn from Byron's letter and his failure to
testify. This is so even though in his testimony Carlough has purported to give
Byron's as well as his own explanation of the December 1955 letter when they
were confronted with the letter at the meeting with the Steelworkers on November
13. For Byron, as president of the International, the writer of the letter, and the
natural spokesman for the Sheet Metal Workers in the August meeting with Burt
and the November meeting with the Steelworkers, was the logical and necessary
witness on the questions of what the letter meant and what he himself said in these
meetings. By his failure to appear as a witness, the General Counsel and Burt
have been deprived not only of his direct testimony and explanation of these
matters but also of an opportunity to test his story on cross-examination. And
the Board, too, does not have the benefit of the evidence which Byron could
reasonably be expected to give.
Upon these considerations and in accordance with Sawyer's testimony, the Trial
Examiner finds that President Byron of the Sheet Metal Workers in the August
1956 meeting, and Secretary Carlough in the October 1956 meeting, told him in
substance that Burt would have trouble getting its equipment installed as long
as its employees were not represented by the Sheet Metal Workers and that Burt
should therefore get its men over into the Sheet Metal Workers on the expiration
of its contract with the Steelworkers. The Trial Examiner further finds, in accord-
ance with Brownlee's testimony, that both Byron and Carlough told the Steelworkers
and the AFL-CIO's officials at the November 13, 1956, meeting that it was their
position, as stated by Byron in his letter to Ohler, that a turnover of the Steel-
workers' members at Burt to the Sheet Metal Workers would settle the problem
raised by the Sheet Metal Workers' refusal to install Burt's products. Upon these
findings, the Trial Examiner concludes that: (1) As shown by the statements thus
made by Byron and Carlough to Sawyer in 1956, the Sheet Metal Workers exerted
the pressure of a boycott against Burt's products under articles I and II of the SFUA,
for the purpose of compelling Burt to recognize the Sheet Metal Workers as the
representative of Burt's employees when Burt's contract with the Steelworkers
expired; and (2) since that time, the Sheet Metal Workers' boycott of
Burt's product (including the incidents involving the various Respondent Locals as
described above in section III, B of this report) has been continuously applied for
the purpose of compelling Burt to recognize, and its employees to accept, the Sheet
Metal Workers as bargaining representative.
D. Conclusions
1. Concerning the significance of articles I and II of the SFUA
In their briefs, counsel for the Respondents stress the argument that the Respond-
ents have been doing no more than enforcing articles I and II of the SFUA which
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
require their contracting employers to install only Sheet Metal Workers products,
and that the sole purpose of the Respondents' actions under these contractual pro-
visions has been to protect and advance the economic interests of the craft em-
ployees whom they represent. The General Counsel and Burt dispute the con-
struction thus placed upon the language of articles I and II, as well as the objective
asserted by the Respondents for their actions thereunder.
In the opinion of the Trial Examiner, it is immaterial to the issues in the present
case whether or not the Respondents' construction of articles I and II accords with
a precise, literal interpretation of the language of the articles. For with respect
to the Section 8(b) (4) issues in the case, it is now settled that advance contractual
assent by the employer is no defense to any charge of violation under that section
of the Act and its subdivisions.18 And, with respect to the issues arising under
Section 8(b)(1)(A) and (2), it is equally clear that the provisions of these sections
of the Act are designed to protect employee rights and that the assent of an employer
to acts of a labor organization infringing upon these rights is therefore completely
immaterial. The relevance of articles I and II of the SFUA, therefore, lies not in
any contractually binding obligation they may impose upon the sheet metal con-
tractors, but rather (1) in the apparently bona fide construction which the record
shows has for years been persistently and openly given to them by the Respondent
International and its Locals, and which is consequently relevant to the question of
Respondents' objectives; and (2) in the relationship which the record shows has
existed between the Respondent International and its Locals in their adoption, use,
and enforcement of articles I and II, and which therefore bears directly upon the
question of the responsibility of any one of them for the acts of any of the others.
On this question of responsibility, the General Counsel and Burt contend that the
Respondent International is responsible for the acts of its Locals and their business
agents in seeking to enforce articles I and II of the SFUA because such acts are in
furtherance of a policy prescribed by the Respondent International under the Sheet
Metal Workers' general constitution, are subject to the direction and control of the
Respondent International under the constitution, and are therefore committed by the
Locals as "instrumentalities and agents of the Respondent International." The Re-
spondent International denies this responsibility for its Locals' acts. Its general argu-
ment is that the Locals are autonomous. In particularly denying responsibility for
any acts by Locals inducing or encouraging employee refusals to install non-Sheet
Metal Workers products (such as those found in section III, B, 2, above), it also
relies upon the testimony of its general secretary, Carlough, that he had repeatedly
instructed the Locals' business agents that they were not to refuse to handle or
install non-Sheet Metal Workers products which had already been delivered to the
jobsite. Upon consideration of the evidence and for the reasons stated below, the
Trial Examiner agrees with the General Counsel and Burt on this question of the
International's responsibility for the acts of the Locals.
Article 3, section 2(a) of the Respondent International's constitution grants its
general president the "direction and supervision of all local unions," with power to
suspend any Local "for failure to comply with the provisions of this Constitution,
the policies of this Association, or valid orders or decisions of any officers of this
Association." With specific reference to the SFUA, the Respondent International's
constitution had, until 1950, required the Locals to use the SFUA as their contract
with employers. Although in 1950 this provision for mandatory use of the SFUA
was deleted from the constitution, the constitution has still required the Interna-
tional to furnish the Locals with forms of the SFUA (including articles I and II)
because of "the desirability of uniformity in local agreements" and, in addition,
requires the Locals to incorporate in their contracts the substance of certain "basic
provisions," including one which, as has been noted in section II of this report, makes
at least the substance of articles I and II a required provision of every contract.
Against the background of these constitutional provisions, the evidence shows that,
by the use of articles I and II of the SFUA, the Respondent International and its
Locals, including the Respondent Locals, have been engaged for years in an attempt
to restrict the sheet metal installations made by the craftsmen they represent, to
products which are made in Sheet Metal Workers shops. That this has been, and
is, the general objective and policy of the Respondent International, which the
Locals are bound by the constitution to observe and support under the direction
and control of the Respondent International, seems to the Trial Examiner to be
unquestionable.
' Local 1976, United Brotherhood of Carpenters etc. (Sand Door & Plywood Co ) v.
11'.L R.B, 357 U.S. 93.
SHEET METAL WORKERS INT ' L ASSN., AFL-CIO, ETC. 1667
The Respondent International 's constitutional right to direct and control , and the
Locals' and their business agents ' corresponding obligation to comply, have clearly
made the Locals and their business agents the agents of the Respondent Interna-
tional whenever they are engaged in the enforcement of articles I and II of the
SFUA. It follows under the usual rules of agency that the Respondent Interna-
tional is responsible even for such acts of the Locals as may have been forbidden
by the Respondent International , provided only that the acts have been committed
in the general course of procuring or attempting to procure compliance by their
contracting employers with articles I and II . The Trial Examiner therefore con-
cludes, in accordance with the General Counsel 's and Burt 's contention and contrary
to the argument of the Respondent International , that the Respondent International
is responsible for the acts of its Locals and their business agents not only in directly
appealing to their contracting employers to comply with articles I and II by handling
only Sheet Metal Workers products ( a course which the Respondent International
concedes it approved ), but also in inducing and encouraging the employees to
refuse to handle or install non -Sheet Metal Workers products , even though, as
appears from Carlough's testimony , the Respondent International had forbidden this
latter type of action.
2. Concerning the violations of Section 8 (b) (4) (A) of the Act
In section III, B, 2, above, the Trial Examiner has found that Respondents Local
70 and Lloyd Kenney, its business agent (in an incident in the spring of 1957
involving employees of Wooster Sheet Metal Roofing Company), and Respondents
Local 65 and Clarence Desch, its business agent (in another incident in October 1957,
involving employees of Mannen and Roth Company), induced and encouraged
employees of these employers to refuse to install Burt's ventilators. The Wooster
Company and Mannen and Roth were each covered by a Sheet Metal Workers con-
tract containing articles I and II of the SFUA and it appears clear from the evidence
that, consistent with the Respondents' construction of these articles, an object of the
Respondent Local and its business agent in each of these two incidents of employee
inducement and encouragement was to force the employer to cease using, handling,
working upon, or installing the products of Burt, a non-Sheet Metal Workers manu-
facturer, and to cease doing business with Burt. For the reasons set forth in the
preceding section of this report, the Trial Examiner finds that the Respondent
International, as well as the Locals and business agents, is responsible for these
incidents of employee inducement and encouragement.
In sum, the Trial Examiner finds and concludes that:
(1) In the spring of 1957, Respondent International, Respondent Local 70, and
Respondent Lloyd Kenney induced and encouraged employees of Wooster Sheet
Metal Roofing Company, a sheet metal contractor, to engage in a concerted refusal
in the course of their employment to use, handle, work upon, or install Burt's
ventilators.
(2) In October 1957, Respondent International, Respondent Local 65, and Re-
spondent Clarence Desch induced and encouraged employees of Mannen and Roth
Company, a sheet metal contractor, to engage in a concerted refusal in the course
of their employment to use, handle, work upon, or install Burt's ventilators.
(3) In each of the foregoing incidents, an object of the named Respondents was
to force or require the sheet metal contractor to cease using, handling, installing,
purchasing, or otherwise dealing in Burt's products and to cease doing business with
Burt.
(4) In committing the foregoing acts, the named Respondents committed unfair
labor practices within the meaning of Section 8(b) (4) (A) of the Act.
3. Concerning the remaining violations of the Act and the issues of
objective or purpose
a. General considerations
We come now to the final broad issues of:
(1) Whether or not the inducement and encouragement of Wooster Company's
employees and of Mannen and Roth Company's employees, which have just been
found to have been violative of Section 8(b) (4) (A) of the Act, were also violative
of Section 8(b)(4)(B) and (C).
(2) Whether or not both the Respondents' employee inducement and encourage-
ment and its pressures upon sheet metal contractors not to handle or install Burt's
products (as found in section 111, B, 1 and 2 of this report) were violative of
1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(b)(1)(A) and (2) of the Act under the reasoning of the Board in the
Curtis Brothers, the Alloy Manufacturing Company, and the Ruflalo cases 19
Both the 8(b)(4)(B) and (C) issues and the 8(b)(1)(A) and (2) issues, as the
parties deal with them in their arguments, require a consideration of the Respondents'
objectives or purposes in refusing to install Burt's products under articles I and II
of the SFUA in the various incidents which have been found to have occurred since
December 5, 1956. From what has already been found, it appears to the Trial
Examiner that, since August 1956, the Respondents have had two objectives or
purposes in insisting that their sheet metal contractors refrain from installing Burt's
products.
One of the Respondents' objectives was the objective of enlarging and preserving
the job opportunities of the craftsmen the Sheet Metal Workers represents under
its contracts, and thus advancing and protecting their economic interests. As the
Trial Examiner has found, this has been the reason for the Respondents' insisting
for at least 20 years that the installations made by their sheet metal contractors be
restricted to the products of Sheet Metal Workers shops. In agreement with the
Respondents' position, the Trial Examiner finds and concludes that this was, and is,
a legitimate union objective, the attainment of which by proper means is permissible
under the guarantee by Section 7 of the Act of the right of employees to engage in
concerted activities for the purpose of mutual aid and protection.29
As the Trial Examiner has also found in spite of the denials by the Respondents'
witnesses, the Respondents' other objective in insisting since August 1956 that their
contracting employers refrain from installing Burt's products has been to compel
Burt to recognize, and Burt's employees to accept, the Sheet Metal Workers as exclu-
sive bargaining representative It is clear, since the Sheet Metal Workers does not
claim to represent any of Burt's employees, that this second objective is illegal.
In connection with the 8(b)(4)(B) and (C) issues and the 8(b)(1)(A) issues,
the question also arises as to whether or not the statements made by Byron and
Carlough to Sawyer in the 1956 meetings were "demands for recognition," as the
complaint, the bill of particulars, and the briefs of the General Counsel and Burt
characterize them. As the Trial Examiner has found, Byron and Carlough told
Sawyer in substance that Burt would have trouble getting its equipment installed
as long as its employees were not represented by the Sheet Metal Workers and that
Burt should therefore get its men over into the Sheet Metal Workers on the expiration
of its contract with the Steelworkers. The question of whether this was a "demand
for recognition" is one of semantics and, as will appear, requires one answer in
deciding the 8(b)(4)(B) and (C) issues and another in deciding the 8(b)(1)(A)
issues in accordance with the Board's reasoning in the Curtis and Alloy decisions.
Certainly Byron's and Carlough's statements to Sawyer did not contemplate the
possibility of immediate recognition. They did amount, however, to demands that
Burt in some way arranged to recognize the Sheet Metal Workers when the Steel-
workers' contract terminated, whatever might then be the actual desires of its
employees.
One more set of basic findings should be made with respect to the 8(b) (1) (A)
and (2) issues. The evidence shows, and the Trial Examiner finds, that Burt's
employees, as well as Burt, generally knew of the Sheet Metal Workers' objecting
to and preventing installations of Burt's products because Burt was not a Sheet Metal
Workers shop. The Trial Examiner also finds that among the normal, foreseeable
consequences of the Sheet Metal Workers' conduct was a direct economic loss to
Burt, an indirect adverse effect upon the economic interests of Burt's employees, and
a resulting tendency or readiness on the part of Burt and its employees to accept the
Sheet Metal Workers as bargaining representative in substitution for the Steelworkers.
b. Alleged violations of Section 8(b) (4) (B) and (C) of the Act
Upon the findings already made concerning the Respondents' objectives since the
meeting between Byron, Carlough, and Sawyer in August 1956, the Trial Examiner
finds that an objective of Respondent International, Respondent Locals 70 and 65,
and Respondents Lloyd Kenney and Clarence Desch in the incidents of employee
inducement and encouragement found in section III, B, 2, above, was to compel
Burt's recognition of the Sheet Metal Workers as bargaining representative on the
expiration of the Steelworkers' contract, whatever then might be the desires of Burt's
19 Curtis Brothers , Inc., 119 NLRB 232; Alloy Manufacturing Company, et at, 119
NLRB 307; Rufalo's Trucking Service, Inc., 119 NLRB 1268, and see also O'Sullivan
Rubber Corporation , 121 NLRB 1439.
2OSee Joliet Contractors ' Association, 99 NLRB 1391 , 1394, affd. in 202 F. 2d 606,
608-609 (CA. 7).
SHEET METAL WORKERS INT'L ASSN., AFL-CIO, ETC. 1669
employees. As the Trial Examiner has also noted, the Respondents' objective was
not immediate recognition.
In the opinion of the Trial Examiner, which is based upon the exact language
of Section 8(b) (4) (B) and (C) and in part upon a consideration of the overlapping
coverage of Section 8(b)(4)(A) and 8 (b)(1)(A) and (2), the particular objective
proscribed by both Section 8(b)(4)(B) and (C) is immediate, or virtually immedi-
ate, recognition, i.e., recognition under the existing circumstance either of the offend-
ing union 's lack of certified representative status (Section 8(b) (4) (B) ), or of the
preclusive certified representative status of another union (Section 8(b) (4) (C) ).
When, therefore, as in the present case, the objective is the compulsion of future
recognition by the employer without regard to his employees' wishes at that time,
the applicable and effective prohibitions of the Act are only those of Section
8(b)(4)(A) (because of the accompanying objective of compelling the secondary
employer to cease doing business with the primary employer) and Section
8(b) (1) (A) and possibly Section 8(b) (2) (because of the restraint upon the freedom
of the employees to choose their bargaining representative under the guaranty of
Section 7).
Since immediate recognition was apparently not an objective of the Respondents
in the incidents of employee inducement found in section III, B, 2 of this report, the
Trial Examiner concludes that no violations of Section 8(b)(4)(B) and (C) have
been proved, and will therefore recommend a dismissal of the allegations of the
complaint to that effect.
c. Violations of Section 8(b)(1)(A) of the Act
The General Counsel and Burt rely upon the Board's descisions in the Curtis,
Alloy, and Ruffalo cases 21 to support their contention that, by the Respondents'
pressures upon sheet metal contractors and their inducement and encouragement
of the employees of some of these contractors to refuse to handle or install Burt's
products, the Respondents violated Section 8(b) (1) (A) of the Act because their
objective was to compel Burt to recognize the Respondent International or one of
its Locals as exclusive bargaining representative 22 In all three of these cases, the
Board held primary picketing by a minority union for the purpose of compelling
immediate recognition by the employer to be violative of Section 8(b)(1)(A) of
the Act. In Alloy, the Board also found additional violations of Section 8(b) (1) (A)
in the respondent union's appeals to the employer's customers not to do business
with the employer, and its inclusion of the employer's name on a "We Do Not
Patronize List." As stated and explained by the Board in these decisions (principally
in the leading Curtis decision), the essence of the Board's reasoning is that, when
brought to bear upon an employer by a minority union for the purpose of compelling
recognition, picketing or "other equally direct and effective techniques" 23 not only
injure the employer's business and coerce the employer, but also coerce the em-
ployees whose livelihoods are dependent upon the business, thereby restraining and
coercing the employees in the free exercise of their rights to self-organization under
Section 7 and violating Section 8(b)(1)(A) of the Act.
The Respondents' boycott pressures on Burt for recognition apparently fit into the
general pattern thus dealt with by the Board in the Curtis line of cases. The Re-
spondents, however, challenge the Curtis rule as being unsound, and also argue that,
in any event, the Curtis rule as laid down by the Board is inapplicable to the situation
in the present case because (1) it appears, even from Sawyer's testimony, that the
2i Curtis Brothers, Inc , supra; Alloy Manufacturing Company, et al , supra, Ru ffalo's
Trucking Service. Inc, supra
22 Although this is the theory stated by the complaint, the General Counsel and Burt also
argue in their briefs that the Respondents' conduct was violative of Section 8(b) (1) (A)
regardless of the recognition objective. This additional argument in the briefs seems to be
precluded by the Board's reasoning in the Curtis, Alloy, and Ruff ale decisions. In any
event, it is unnecessary to decide this additional question in view of what the Trial
Examiner believes to be the proper decision under Curtis, Alloy, and Ruffalo.
23 See the Alloy decision in which the Board explained its extension of the 8(b) (1) (A)
finding to the union's boycott appeals to customers and its use of the "We Do Not
Patronize List" as follows :
As the restraint and coercion brought to play upon employees is an economic one
through curtailment or extinction of their employer' s business , it is not really mate-
rial whether the pressure is applied through the act of picketing, and thereby hurting
the business , or by other equally direct and effective techniques.
560940-61-vol . 127-107
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents did not seek immediate recognition by Burt; (2) the Respondents con-
duct in the present case did not have the direct impact upon Burt and its employees
that the primary picketing had upon the employers and the employees in the Curtis
line of cases; (3) the Respondents' conduct in the present case was therefore too
remote from Burt's employees to have any injurious effect upon their exercise of
the right to self-organization; and (4) a balancing of legitimate, conflicting interests
as required by the decisions of the Supreme Court 24 justifies the Respondents' conduct
in advancing and protecting the economic interests of the employees they represent
in spite of any possible adverse effect upon Burt's employees.
Even though the Board's order in the Curtis case has recently been set aside by
the Court of Appeals for the District of Columbia,25 the Trial Examiner is bound to
follow and apply the Board's general reasoning as well as its rulings in the Curtis,
Alloy, and Ruffalo cases. Moreover, the decision of the court of appeals is based
solely upon its limited holding that Section 8 (b) (1) (A) of the Act is inapplicable
to the peaceful picketing forbidden by the Board's Curtis order in view of the pro-
visions of Section 13 of the Act and the legislative history of Section 8(b)(1)(A).
The court, therefore, did not pass upon the validity of the Board's general reasoning
with respect to minority union pressures for recognition other than picketing.
In the opinion of the Trial Examiner the general reasoning of the Board in the
Curtis, Alloy, and Ruffalo cases requires a finding of violation of Section 8(b) (1)(A)
in the present case, based upon the Respondents' use of the boycott of Burt's
products for the purpose of compelling recognition. In reaching this conclusion,
the Trial Examiner has considered, and for the following reasons has rejected, the
Respondents' argument that the Curtis rule is inapplicable to the facts in the present
case.
The broad import of the Board's reasoning in the Curtis and Alloy cases is that
any compulsion of recognition of a union which does not represent a majority of
the employees constitutes a restraint and coercion of the employees in the exercise
of their guaranteed right to self-organization and is therefore a violation of Section
8(b) (1) (A) of the Act. Whether the compulsion is intended to have immediate
effect or, by its continuance, is intended to attain the desired result at some future
time is immaterial. For in both cases, the restraint is apparent and there certainly
is just as good reason, if not more reason, for applying the Act to stop an extended
campaign of coercion with its drawnout injurious effects as to enjoin compulsory
tactics which contemplates possible immediate success
In view of this apparent, broad rationale for the Curtis rule, it does not seem to
the Trial Examiner to be significant that in the present case the Respondents' ob-
jective was not immediate recognition even though in the Curtis line of cases the
Board has stressed the fact that the respondent union's objective was to coerce
immediate recognition. For in these decisions the Board was dealing with picketing
and, because of this, was faced with the special problem of whether the picketing was
illegal recognition picketing by the minority union or organizational picketing which
the Board conceded might be permissible in view of the provisions of Section 13
of the Act and the legislative history of Section 8(b) (1) (A). The obvious basis
for distinguishing between these two types of picketing, therefore, was whether
the picketing was for immediate recognition or only for ultimate recognition after
the organization of the employees had been brought about by the picketing. The
necessity for making any such distinction between an attempt to compel immediate
recognition and an attempt to compel recognition in the future, however, is not pre-
sented in situations, like the instant situation, which do not involve picketing.
Nor does the Trial Examiner find merit in the Respondents' arguments that the
boycott pressures in the present case were remote from Burt's employees and there-
fore cannot be regarded as having an injurious effect upon their exercise of the
right to self-organization. Certainly, they were no more remote than was the
union's attempted customer boycott and use of the "We Do Not Patronize List" in
the Alloy case in which the Board found such tactics to be equally as direct and
effective as the picketing, and therefore violative of Section 8(a)(1) of the Act.
Furthermore, the injury to Burt's business from the boycott is self-evident and
Burt's employees, as well as Burt, knew generally of the Sheet Metal Workers'
boycott of Burt's products because Burt was not a Sheet Metal Workers shop.
31 Tiuck Drovers Local Union No lili9, etc (Buffalo Linen Supply Co ) v N L R B ,
353 U S 87, 96, N.L R B v. Babcock and Wilcox Company, 351 U S 105, 112; Republic
Aviation Corpoi anon v N L 1L B , 324 U S 793, 797-798
'-Drivers. Chauffeurs and £Ielpeis Local Union No. 639, etc. (Curtis Brothers, Inc.) v.
N L.R B., 274 F. 2d 551.
SHEET METAL WORKERS INT'L ASSN., AFL-CIO, ETC. 1671
The remaining argument of the Respondents based upon the balancing of legiti-
mate, conflicting interests finds its answer in the findings of fact already made and
in the holding of the Board in the Curtis case with respect to the same problem.
In their argument, the Respondents apparently assume that the balancing or adjust-
ment of interests should be made between the Respondents' legitimate interest in
advancing and protecting the economic position of their craftsmen, and the interest
of Burt's employees in their free exercise of the right to self-organization. But
the Trial Examiner has found that, with respect to the boycott of Burt's product since
August 1956, another objective of the Respondent has been the illegal objective of
compelling recognition by Burt. In this situation, as the Board pointed out in
Curtis, there is no occasion to balance legitimate interests.
Upon the foregoing considerations and in accordance with the reasoning of the
Board in the Curtis, Alloy, and RujJalo cases, the Trial Examiner concludes that:
(1) In causing and attempting to cause sheet metal contractors and the employees
of some of these contractors to refuse to handle or install Burt's products in the
incidents since December 5, 1956, which have been found in section III, B, 1 and 2
of this report, the Respondent International and the various Respondent Locals and
their business agents who participated in these acts have maintained the pressure of
a boycott of Burt's products for the purpose of compelling Burt to recognize, and
its employees to accept, the Respondent International or one of its Locals as
exclusive bargaining representative, although neither the Respondent International
nor any of its Locals has been so designated by a majority of Burt's employees.
(2) That by the commission of these acts for this purpose, the Respondents have
restrained and coerced Burt's employees in the free exercise of their right to self-
organization under Section 7 of the Act and have thereby violated Section
8(b)(1)(A).
d. Alleged violations of Section 8(b) (2) of the Act
The final question for consideration is whether the Respondents' boycott pressures
on Burt constituted a violation of Section 8(b) (2) of the Act in that the Respondents
thereby attempted to cause Burt to discriminate against its employees in violation of
Section 8(a)(3) of the Act. Apparently it is the General Counsel's theory that by
the boycott pressure, the Respondents have been attempting to cause Burt to dis-
criminate against its employees by entering into a contract with the Sheet Metal
Workers containing a union-security clause in the form which appears in the
SFUA. But the evidence does not show a demand or request by the Sheet Metal
Workers of Burt either for the immediate execution of a contract or for the in-
clusion of a union-security clause. The Trial Examiner finds no basis in the record
to warrant a finding of violation of Section 8(b) (2) of the Act and will recommend
that the allegation of the complaint of such a violation be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of the Burt Manufacturing Company, set forth in section
I, above, have a close, intimate, and substantial relation to trade, traffic, and coin-
merce among the several States, and tend to lead to labor disputes burdening com-
merce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondents have engaged in unfair labor practices
within the meaning of Section 8(b) (1) (A) and 8(b) (4) (A) of the Act, the Trial
Examiner will recommend that they cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act. The form and sub-
stance of the usual cease-and-desist orders and affirmative orders seem appropriate
for the purpose of the remedy for the violations of Section 8(b) (4) (A) of the Act.
But the remedy appropriate for the unfair labor practices under Section 8(b) (1) (A)
requires unusual attention and consideration.
The Trial Examiner has found that the Respondents violated Section 8(b) (1) (A)
by causing or attempting to cause sheet metal contractors and the employees of
some of them to refuse to install Burt's products, and by maintaining the resulting
boycott of Burt's products for the purpose of coercing recognition of the Sheet Metal
Workers as exclusive bargaining representative by Burt and its employees. The Trial
Examiner has also found that another objective of the Sheet Metal Workers for such
a boycott of Burt's products (and perhaps the sole objective in the cases of boycotts
.of the products of other manufacturers) has been the legitimate objective of advance-
1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing and protecting the economic interests of the craftsmen represented by the Sheet
Metal Workers. As matters stand, the business of Burt has been injured and the
organizational rights of Burt's employees have been infringed by the Respondents'
illegal boycott of Burt's products. In order to remedy this unfair labor practice and
its effects, it is necessary to require the Respondents to cease and desist from causing,
attempting to cause, or maintaining such a boycott of Burt's products. Furthermore,
since the Respondents' conduct has been responsible for bringing the illegal purpose
of the Respondents' boycott of Burt's product to the attention of Burt's employees, a
continuance of the boycott even for its possible, otherwise legitimate objective would
make impossible the complete dissipation of the effects of the unfair labor practices
which the effectuation of the purposes of the Act requires. In order to provide an
effective, complete remedy of the unfair labor practices and to prevent the Re-
spondents from taking any benefit from their past unfair labor practices, the Trial
Examiner will recommend that the Respondents cease and desist from causing, at-
tempting to cause, or maintaining a boycott of Burt's products for any purpose.
The General Counsel seeks a broader order which would require the Respondents
to stop their general practice of insisting that their sheet metal contractors install
only Sheet Metal Workers products and would in effect require them to agree to the
installation not only of Burt's products but also the products of all other manufac-
turers whose shops are not Sheet Metal Workers shops 26 The Trial Examiner
believes that such an order not only would have no reasonable relation to the unfair
labor practices affecting Burt's employees, which the Trial Examiner has found,
but that it would be an interference, unjustified by the record, with the Respondents'
conduct of the concerted activities of its own craftsmen for their mutual aid and
protection under the guarantee of Section 7 of the Act. For, as the Trial Examiner
has noted,27 there is no evidence in the record which shows any general pattern of
objective and conduct on the part of the Sheet Metal Workers involving the use
of a product boycott for the purpose of compelling recognition by employers other
than Burt. From the absence of any such evidence, it must therefore be assumed
for the purposes of the present case that, except with respect to Burt's products, the
Respondents' insistence that their sheet metal contractors install only Sheet Metal
Workers products has had as its sole and legitimate objective the advancement and
protection of the economic positions of the sheet metal craftsmen whom they repre-
sent. For these reasons, the Trial Examiner will not make these broad recommenda-
tions requested by the General Counsel, but will recommend that the Section
8(b)(1)(A) order be limited to the Respondents' boycott of Burt's products.
Upon the basis of the above findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Burt Manufacturing Company is a manufacturer of sheet metal products
and an employer engaged in commerce within the meaning of the Act.
20 The General Counsel makes this request In his brief In the following substance :
In addition to the usual remedies prescribed by the Board in cases of this nature,
it is urged that consideration be given to the adoption of the following provisions
1. That Respondents be ordered to cease and desist from compiling, circulating
and urging adherence to "Fair Lists";
2 That Respondents be ordered to cease and desist from insisting upon, maintain-
ing and enforcing contractual provisions similar to Articles I and II of the Standard
Form as interpreted by Respondents, far the purpose of inducing or encouraging
employee-members and/or to compel contractual employers to refuse to handle, install,
or erect products of Burt or of any other "non-union" employee
3. That Respondents be ordered to cease and desist from adopting, maintaining
and enforcing provisions of the Constitution and Ritual which tend to induce and
encourage employee-members and/or to compel employers to refuse to handle, install,
or erect products of Burt or of any other " non-union" employer ;
4 That Respondents be ordered to notify all members and all employers with
whom it has collective bargaining contracts that the Respondents have no objection
to such members and employers handling, installing , or erecting products of Burt or
of any other "non-union" employer.
27 See section III, C, 3 of this report under the caption "Summary of Conclusions as
to the Respondents ' General Conduct Since 1946."
SHEET METAL WORKERS INT'L ASSN., AFL-CIO, ETC. 1673
2. Wooster Sheet Metal and Roofing Company, Kasch Roofing Co., the members
of the Valley Sheet Metal and Roofers Association (including the Adkins Roofing
Company, T. E. Cupp & Sons, and Schenerlein Roofing & Supply Company), Con-
ditioned Air, Inc., Tri-State Roofing Company, and Mannen and Roth Company
are sheet metal contractors and employers within the meaning of the Act.28
3. The Respondents Sheet Metal Workers' International Association, AFL-CIO,
and its Locals Nos. 70, 65, and 98, and also the United Steelworkers of America,
AFL-CIO, and its Local No. 1159, are labor organizations within the meaning of
Section 2(5) of the Act.
4. At no time material to the present case, has the Respondent International or
any of its Locals been designated as exclusive bargaining representative by a majority
of Burt's employees.
5. Respondents Robert Byron and Edward F. Carlough are respectively the gen-
eral president and general secretary of the Respondent International; Respondents
W. O. Frost and Lloyd Kenney are agents of Respondent Local No. 70; Respondent
Clarence Desch is an agent of Respondent Local No. 65; and Respondent Clifton
Deangulo is an agent of Respondent Local No. 98.29
6. By inducing and encouraging employees of Wooster Sheet Metal and Roofing
Company to engage in a concerted refusal in the course of their employment to use,
handle, work upon, or install sheet metal products of Burt with the objects of forcing
or requiring Wooster Sheet Metal and Roofing Company to cease using, handling,
installing, purchasing, or otherwise dealing in Burt's products and to cease doing
business with Burt, Respondent International, Respondent Local No. 70, and Re-
spondent Lloyd Kenney have committed unfair labor practices within the meaning
of Section 8(b)(4) (A) of the Act.
7. By inducing and encouraging employees of Mannen and Roth Company to
engage in a concerted refusal in the course of their employment to use, handle, work
upon, or install sheet metal products of Burt with the object of forcing or requiring
Mannen and Roth Company to cease using, handling, installing, purchasing, or
otherwise dealing in Burt's products, and to cease doing business with Burt, Re-
spondent International, Respondent Local No. 65, and Respondent Clarence Desch
have committed unfair labor practices within the meaning of Section 8(b)(4)(A)
of the Act.
8. By the acts of employee inducement and encouragement described in conclu-
sions Nos 6 and 7, above, and also by causing and attempting to cause the sheet
metal contractors referred to in conclusion No. 2, to refuse to handle or install Burt's
products, Respondents International, its president, Robert Byron, and its secretary,
Edward F. Carlough, Local No. 70 and its agents W. O. Frost and Lloyd Kenney,
Local No. 65 and its agent Clarence Desch, and Local No. 98 and its agent Clifton
Deangulo, have maintained the pressure of a boycott of Burt's products for the pur-
pose of compelling Burt to recognize, and its employees to accept, Respondent In-
ternational or one of its Locals as exclusive bargaining representative, and have
thereby committed unfair labor practices within the meaning of Section 8(b) (1) (A)
of the Act.
9. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of the Act.
10. Except as stated above, none of the Respondents named in the complaint has
committed the unfair labor practices alleged by the complaint.
[Recommendations omitted from publication.]
23 No specific conclusion of law is stated with respect to the A. Nabakowski Company,
since the Trial Examiner has found that the evidence does not warrant a conclusion
that the Respondents exerted pressure upon Nabakowski directed particularly against
Nabakowski's installation of Burt's products. By conclusion No. 10, however, the Trial
Examiner has limited its findings of the acts of unfair labor practice to those described
in the other conclusions
20 Respondents Alfred J. Mosher, Robert J Kidney, J. R Dietz, Alton Page, Ross A.
Boggs, and Edward M. Hickey are not specifically mentioned in these conclusions although
they are agents of the various Respondent Locals and as such are subject to the order
which the Board may issue against these Locals The evidence does not show their
participation in any of the unfair labor practices found. The substance of the allegations
of the complaint against them is therefore to be considered as dismissed under blanket
conclusion No. 10.