Sheet Metal Workers, Local 223Download PDFNational Labor Relations Board - Board DecisionsApr 3, 1972196 N.L.R.B. 55 (N.L.R.B. 1972) Copy Citation SHEET METAL WORKERS, LOCAL 223 55 Sheet Metal Workers International Association, Local Union No. 223 , AFL-CIO and Continental Air Fil- ters Company and Cambridge Filter Corporation and Gelfand Roofing Company Cases 12-CC-725, Cases 12-CC-726, 12-CC-728, 12-CC-727, and 12-CE-14 April 3, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On October 12, 1971, Trial Examiner Joseph I. Nachman issued the attached Decision in this pro- ceeding. Thereafter, Respondent, the General Coun- sel, the Charging Parties, and Intervenor, Florida East Coast Sheet Metal Contractors Association, jointly filed exceptions and briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings,' findings,' and conclusions' except as mod- ified herein. We find, in agreement with the Trial Examiner, that Respondent Local 223, by its conduct fully set forth in the Trial Examiner's Decision, violated Section 8(b)(4)(i) and (ii)(B) and Section 8(e) of the Act. In addition, we find that the following conduct of Local i The Trial Examiner erroneously refused to hear the General Counsel's oral argument proffered at the close of the hearing Section 102.42 of the Board's Rules and Regulations reads in pertinent part, Any party shall be entitled , upon request, to a reasonable period at the close of the hearing for oral argument , which shall be included in the stenographics report of the hearing. The right thus granted includes the right to have the argument heard by the Trial Examiner, and not simply read by him later. In the circumstances of this case , however, we conclude that this error of the Trial Examiner was not prejudicial. 2 The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board 's established policy not to overrule a Trial Examiner 's resolutions with respect to credibility unless the clear preponder- ance of all of the relevant evidence convinces us that the resolutions were incorrect . Standard Dry Wall Products, Inc. 91 NLRB 544, enfd 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings. The Trial Examiner correctly found in his Findings of Fact that East Coast Supply Company , Intercoastal , Inc., and Southern Metals, Inc., were distrib- utors of sheet metal products , but inadvertently referred to these companies as producers in his Conclusions of Law 3 and 4. We hereby correct the inadvertence. We also shall name these companies at the appropriate point in our Order, which will be substituted for that of the Trial Examiner. 3In view of our ultimate conclusion here that article II, section 2, and article VIII , section 2 , of the "Standard Form of Union Agreement" entered into between Respondent and Gelfand Roofing Company, as administered, maintained , enforced , and given effect to , are violative of Section 8(e), we need not, and do not, pass on the validity under Section 8 (e) of such contract provisions on their face. 223 also violated Section 8(b)(4)(i) and (ii)(B) of the Act: 1. In late September 1970, Respondent' s Business Manager Strong threatened Abraham Gelfand, a partner in Gelfand Roofing Company, with a work stoppage and picketing if Gelfand attempted to use certain nonunion label sheetmetal materials on the Centex-Winston jobsite. Strong warned Gelfand that he intended to prefer charges against Gelfand under the collective-bargaining agreement, but that he would not do so if Gelfand paid Variety Children's Hospital the sum of $150, the amount Strong calcu- lated to be the additional wage cost had the materials in question been fabricated by members of Respon- dent. On the following day Gelfand, in response to Strong's warning, delivered a check in the amount of $150 to Strong, who mailed it to the hospital. 2. In early October 1970, on the Parkway Hospital jobsite, Respondent's Business Representative Val- destri told Union Air Conditioning Inc.'s Manager Eden and employee Hanshaw, a member of Respon- dent, that Respondent' s members would not install the prefabricated filter racks manufactured by Cam- bridge Filter Corporation because the racks had no union labels, but that Respondent's members would install the racks if Union Air paid them the difference between Respondent's wage rates and the lower rates paid Cambridge's employees. Valdestri, Eden, and Hanshaw then determined the number of hours re- quired to make the racks, and Eden agreed that Union Air would pay Respondent's members in its employ an amount to be determined by multiplying the hours by the wage difference. Some days later, Valdestri informed Eden that the appropriate wage difference was $400. Eden paid his men that amount, and they then installed the Cambridge racks on the Parkway job. In November 1970, Eden learned that Respondent's members had refused to install nonun- ion label Cambridge filter racks on the Palmetto Hos- pital job. Eden telephoned Valdestri, who told Eden that Business Manager Strong, unaware of the ar- rangement Eden and Valdestri had made in October at the Parkway Hospital jobsite, had told the men not to handle the Cambridge units. Valdestri said he would examine the units and then tell Eden the amount due. Later Valdestri informed Eden the amount due was $270, whereupon Eden paid the men that amount and they installed the Cambridge racks. 3. United Sheet Metal Company purchased air han- dling units made by Continental Air Filters Company for its job at the Lutheran Medical Center, and others made by Cambridge Filter Corporation for its job at the Miami Airport. As detailed in the Trial Examiner's Decision, Respondent's members refused to handle the nonunion label filter rack components 196 NLRB No. 12 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of these units upon their arrival at the jobsites in October 1970. The racks were then stored in United's yard. Respondent 's Business Manager Strong, accompa- nied by United Shop Foreman Rongo and employee and Shop Steward Ballas , both members of Respon- dent, visited United's President Keen in his office. Strong told Keen that United could use the Continen- tal and Cambridge nonunion label racks only if it would pay the difference between Respondent's con- tract wage scale and the scale by which Cambridge and Continental paid their Employees. After Strong, Rongo, and Ballas had examined the units, Strong told Keen that United would have to pay $1,750 to all men employed by United on November 1, 1970. Later in this conversation Strong said that the money might be contributed to a charity. There is no evidence that this amount was ever paid. The Demands for Payment Constitute Economic Coercion We find that Respondent threatened, coerced, and restrained Gelfand Roofing Company, Union Air Conditioning, Inc., and United Sheet Metal Company in violation of Section 8(b)(4)(ii)(B) of the Act by demanding monetary penalties in exchange for per- mitting its members to install the nonunion label products, and also in Gelfand's case for withholding the filing of grievances which were themselves intend- ed to further Respondent's boycott of nonunion label goods.4 Respondent imposed the penalties in each case in the context of its threats of work stoppages, picketing, or the filing of grievances under the re- spective collective-bargaining agreements . The pay- ments clearly were demanded as penalties for using nonunion label products, and this course of conduct constituted economic coercion applied by Respon- dent in pursuance of secondary objectives, namely, the labor relations of the manufacturers or distrib- utors of such products. Gelfand, Union Air, and United had no legal obligation to pay these sums. Gelfand and Union Air did so only under the duress imposed by Respondent in furtherance of its unlawful objective. We also conclude that Respondent's conduct with respect to Union Air and United violated Section 8(b)(4)(i)(B) of the Act. Union Air paid Respondent's members employed by it $400 to install Cambridge units on the Parkway Hospital job and $270 to do similar work on the Palmetto Hospital job. Those em- ployees were thus induced and encouraged to boycott future Cambridge and Continental racks in expecta- c Cincinnati Sheet Metal A Roofing Company, A/K/A Ajax Company, 174 NLRB 104, enfd . as modified 433 F.2d 1189 (C.A.D.C.). tion of receiving higher wages for working on them. United's employees Rongo and Ballas were similarly induced and encouraged by Respondent's demand for a $1,750 payment as a condition precedent to their handling the nonlabeled units. Such conduct is within the meaning of "induce or encourage" and is pros- cribed by Section 8(b)(4)(i) of the Act. International Brotherhood of Electrical Workers, Local 501 v. N.L.R.B. 341 U.S. 694, 701-702. Our decision in American Boiler Manufacturers As- sociation, 154 NLRB 285, enfd. in part and remanded in part 366 F.2d 815 (C.A. 8); Supplemental Decision and Order, 167 NLRB 602, affd. in pertinent part 404 F.2d 547 (C.A. 8), is distinguishable from the case presented here. In that case the union brought an employer before a joint committee composed of an equal number of representatives of the union and the employer association upon a charge of having violat- ed the lawful fabrication clause of the collective-bar- gaining agreement by accepting a packaged boiler. The committee assessed a fine of $100, which the employer agreed to and did pay. We found that that agreement constituted reasonable compensation for what the union contended was a breach of contract, was a peaceful method of resolving a lawful dispute, and did not violate Section 8(b)(4)(ii)(B). 154 NLRB 285, 292. On remand, after the decision of the Su- preme Court in National Woodwork Manufacturer's Association v. N.L.R.B.. 386 U.S. 612 (1967), we re- considered the evidence and found that the fine was for the purpose of preserving unit work, a primary and not a secondary object, and, therefore, even if coer- cive, was lawful and not prohibited by Section 8(b)(4)(ii)(B). 167 NLRB 602, 604, affd. in pertinent part 404 F.2d 547 (C.A. 8, 1968). In the instant case, Local 223 imposed the mone- tary penalties on the employers in conjunction with threats to engage in work stoppages and to file griev- ances for using nonunion label products, a secondary object. Such penalties were imposed not for the sole primary object of preserving unit work but for the secondary object of boycotting the materials herein because of the absence of union labels. Accordingly, we find that the monetary penalties imposed on Gel- fand, Union Air, and United constituted economic coercion and violated Section 8(b)(4)(ii)(B) of the Act. THE REMEDY The General Counsel and the Charging Parties and Intervenor Florida East Coast Sheet Metal Contrac- tors Association, jointly, except to the Trial Examiner's failure to order Local 223 to reimburse Gelfand and Union Air the moneys unlawfully exact- ed from them by Local 223. We find merit in these exceptions. SHEET METAL WORKERS , LOCAL 223 57 In our view the purposes of the Act can best be effectuated by requiring Local 223 to make whole the employers from whom the monetary penalties were unlawfully exacted. As in other situations where a labor organization has by conduct violative of the Act forced persons to make monetary payments,' we shall require that Respondent Local 223 reimburse Gel- fand Roofing Company the sum of $150 paid by it to Variety Children's Hospital, and Union Air Condi- tioning, Inc., the sum of $670 paid by it to its employ- ees, by the repayment of these moneys, together with interest at 6 percent per annum. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent, Sheet Metal Workers International Association, Local Un- ion No. 223, AFL-CIO, Miami, Florida, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Engaging in, or inducing or encouraging any individual employed by Union Air Conditioning, Inc., United Sheet Metal Company, or any other per- son engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, pro- cess, transport, or otherwise handle or work on any goods, articles, materials , or commodities, or to per- form any services; or threatening, coercing, or re-, straining Union Air Conditioning, Inc., United Sheet Metal Company, Gelfand Roofing Company, or any other person engaged in commerce or in an industry affecting commerce, where, in either case, an object thereof is to force or require any of the aforemen- tioned employers or any other person to cease using, selling, handling, transporting, or otherwise dealing in the products of, or to cease doing business with, Cam- bridge Filter Corporation, Continental Air Filters Company, East Coast Supply Company, Intercoastal, Inc., Southern Metals, Inc., or any other person man- ufacturing and/or distributing sheetmetal products. (b) Maintaining, enforcing, or giving effect to arti- cle II, section 2, or article VIII, section 2, or the collec- tive-bargaining agreement entered into by Respondent and Gelfand Roofing Company on or about May 21, 1970, entitled "Standard Form of Un- ion Agreement," insofar, as these clauses are applied to prohibit the use of nonunion label- products. (c) Executing, maintaining, enforcing, or giving ef- fect to any other contract or agreement, express or implied, with any employer whereby such employer ceases or refrains , or agrees to cease or refrain, from handling, using, selling, transporting, or otherwise dealing in any of the products of or to cease doing business with Continental Air Filters Company, In- tercoastal, Inc., Southern Metals, Inc., or any other person, in violation of Section 8(e) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Notify Gelfand Roofing Company that it will not maintain, enforce, or give effect to article II, sec- tion 2, or article VIII, section 2, of the collective- bargaining agreement entered into on or about May 21, 1970, entitled "Standard Form of Union Agree- ment," nor will it insist upon the inclusion of any other clauses or provisions of a similar or like nature in any future collective-bargaining agreement, insofar as these clauses are to be applied to prohibit the use of nonunion label products. (b) Reimburse Gelfand Roofing Company the sum of $150 and Union Air Conditioning, Inc., the sum of $670, being payments unlawfully exacted from them by Respondent in violation of the Act, together with interest at the rate of 6 percent per annum. (c) Post at its business offices and meeting halls, copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Re- gional Director for Region 12, after being duly signed by Respondent Union's authorized representatives, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Sign and mail to said Regional Director, on forms to be supplied by him, sufficient copies of the aforesaid notice for posting by Gelfand Roofing Company, Union Air Conditioning, Inc., United Sheet Metal Company, and by the employer-mem- bers of Florida East Coast Sheet Metal Contractors Association, if they are willing, at all places where notices to their employees, respectively, are custom- arily posted. (e) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. 5 Local 964, United Brotherhood of Carpenters and Joiners of America (Con- tractors & Suppliers Association of Rockland County, New York, Inc.), 181 NLRB 948, Turner-Brooks, Inc, 161 NLRB 229. 6 In the event that this order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO MEMB1iRS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT engage in, or induce, or encourage any individual employed by Union Air Conditioning, Inc., United Sheet Metal Company, or any other per- son engaged in commerce or in an industry affecting commerce, to engage in, a strike or a refusal in the course of his employment to use, manufacture, pro- cess, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to per- form any services; or threaten, coerce, or restrain Un- ion Air Conditioning, Inc., United Sheet Metal Company, Gelfand Roofing Company, or any other person engaged in commerce or in an industry affect- ing commerce, where in either case an object thereof is to force or require any of the aforementioned em- ployers, or any other person, to cease using, selling handling, transporting, or otherwise dealing in the products of or to cease doing business with Cam- bridge Filter Corporation, Continental Air Filters Company, East Coast Supply Company, Intercoastal, Inc., Southern Metals, Inc., or any other person man- ufacturing and/or distributing sheetmetal products. WE WILL NOT maintain , enforce, or give effect to article II, section 2, or article VIII, section 2, of the collective-bargaining agreement entered into by us with Gelfand Roofing Company, on or about May 21, 1970, entitled "Standard Form of Union Agreement," with an object of prohibiting the use of nonunion label products. WE WILL NOT execute, maintain, enforce, or give ef- fect to any other contract or agreement, express or implied, with any employer whereby such employer ceases or refrains, or agrees to cease or refrain, from handling, using , selling, transporting, or otherwise dealing in the products of or to cease doing business with Continental Air Filters Company, Cambridge Filter Corporation, East Coast Supply Company, In- tercoastal, Inc., Southern Metals, Inc., or any other person, in violation of Section 8(e) of the Act. WE WILL reimburse Gelfand Roofing Company the sum of $150, and Union Air Conditioning, Inc., the sum of $670, which we forced them to pay in order to use nonunion label products, together with interest at the rate of 6 percent per annum. SHEET METAL WORKERS INTER- NATIONAL ASSOCIATION, LOCAL UNION No. 223, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Room 706, Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Telephone 813-228-7711. TRIAL EXAMINER'S DECISION JOSEPH I . NACHMAN, Trial Examiner: This case tried be- fore me at Miami, Florida, on May 3-7 and June 1-4, 1971, with all parties present and represented by counsel, involves a consolidated complaint 1 pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein the Act), which alleges that Sheet Metal Workers International Asso- ciation, Local Union No. 223, AFL-CIO (herein Local 223 or Respondent), by inducing and encouraging employees of various employers performing services on various construc- tion projects hereafter more fully detailed, and by re- straining and coercing said employees, in order to require said employers to cease doing business with the manufac- turers of several products used in said construction, violated Section 8(b)(4)(i) and (ii)(B) of the Act, and by enforcing certain provisions in a contract between the Union and Gelfandin a manner which required Gelfand to cease using the products of other employers, or from doing business with other persons, violated Section 8(e) of the Act. For reasons hereinafter more fully explicated, I find and con- clude that Local 223 violated both Section 8(e) and Section 8(b)(4) (B) of the Act, and recommend an appropriate reme- dial order. At the trial all participants were afforded full opportunity to introduce relevant testimony , to examine and cross-ex- amine witnesses , and to submit briefs. Briefs submitted by Respondent and each of the Intervenors have been duly considered. The General Counsel, although urged to file a brief, refused to do so and instead read into the record the contents of a memorandum he had previously written out,2 and which I have duly considered. Upon the pleadings, stipulations of counsel, the evidence including my observation of the demeanor of the witnesses, and the entire record 3 in the case, I make the following: i Issued March 15,1971, based on charges filed by Continental Air Filters Company (herein Continental ), Cambridge Filter Corporation (herein Cam- bridge), and Gelfand Roofing Compapy (herein Gelfand). In Case 12-CC- 725, the charge was filed November 16; in Case 12-CC-726 on November 19, in Case 12-CC-727 on November 20; in Case 12-CC-728 on November 23, and in Case 12-CE-14 on November 20, all in 1970. At the hearing, Air Conditioning , Refrigeration , Heating & Piping Associ- ation , Inc, and Florida East Coast Sheet Metal Contractors Association, Inc, were permitted to intervene 2 The difficulty with such a document is that, being prepared in advance, it deals with facts as counsel hoped to develop them , rather than as they did in fact develop. 3 During the pendency of this proceeding , I issued an order, dated July 16, 1971, directing the parties to file a response with respect to certain matters. Those responses , marked Trial Examiner 's Exhs. 1, 2, 3, and 4 , respectively, are now made a part of the record herein SHEET METAL WORKERS , LOCAL 223 59 FINDINGS OF FACT 4 Background The unfair labor practices involved in the proceeding concern five different and unrelated construction projects identified in the record as Centex-Winston Condominium, Parkway General Hospital, Palmetto General Hospital, Lu- theran Medical Center, and the Miami Airport jobs, the details of which will hereafter be started. Preliminarily it may be noted that the Union and Florida East Coast Sheet Metal Contractors Association entered into a contract, ef- fective from July 1, 1969, to June 30, 1972, and thereafter from year to year unless terminated as provided in said contract, governing the wages, hours, and terms and condi- tions of employment of members of the Union employed by the employer members of the Association. In addition some employers who are not members of the Association have signed the aforementioned contract and have agreed to be bound by its terms . The first 13 Articles of the contract are a standard form of agreement utilized by the International in all contracts , and the remainin& 20 Articles relate to local conditions which Local 223 negotiates with the Association. Among the employers who are not members of the Associa- tion, but who have signed the union contract, is Gelfand, who signed such contract on May 21, 1970. The standard form contract contains , inter alia , the following provisions: ARTICLE I SECTION 1. This agreement covers the rates of pay, rules and working conditions of all employees of the employer engaged in but not limited to the (a) manu- facture, fabrication, assembling, handling, erection, in- stallation, dismantling, conditioning, adjustment, alteration, repairing and servicing of all ferrous or non- ferrous metal work of U.S. 10 guage or its equivalent or lighter gauge and all other materials used in lieu thereof and of all air-veyor systems and air handling systems regardless of material used including the set- ting of all equipment and all reinforcements in connec- tion therewith; (b) all lagging over insulation and all duct lining; (c) testing and balancing of all air-handling equipment and duct work; (d) the preparation of all shop and field sketches used in fabrication and erec- tion, including those taken from original architectural and engineering drawing or sketches, and (e) all other work included in thejurisdictional claims of Sheet Met- al Workers' International Association. ARTICLE II * * * * SECTION 2. Subject to other applicable provisions of this Agreement , the Employer agrees that when sub- 4 There is no issue of commerce or labor organization . The allegations of the complaint admitted by the answer establish these jurisdictional elements. I find those facts to be as pleaded. contracting for refabrication of materials covered herein, such prefabrication shall be subcontracted to fabricators who pay their employees engaged in such fabrication not less than the prevailing wage for com- parable sheet metal fabrication, as established under provisions of this Agreement. * ARTICLE VIII * * * * * SECTION 2. On all work specified in Article I of this Agreement, fabricated and/or assembled by journey- men sheet metal workers and/or apprentices within the jurisdiction of this Union, or elsewhere, for erection and/or installation within the jurisdiction of any other Local Union affiliated with Sheet Metal Workers' In- ternational Association, whose established wage scale is higher than the wage scale specified in this Agree- ment, the higher wage scale of the job site Union shall be paid to the journeymen employed on such work in the home shop or sent to the job site. SECTION 3. The provisions of Section 2 of Article II and Section 1 of Article III shall not be applicable to the manufacture for sale to the trade or purchase of the following items: 1. Ventilators 2. Louvers 3. Automatic fire dampers 4. Radiator and air conditioning unit enclosures 5. Fabricated pipe and fittings for residential instal- lations only 6. Mixing (attenuation) boxes 7. Plastic skylights 8. Air diffusers, grilles, registers 9. Sound attenuators The General Counsel concedes that the foregoing contract provisions are valid on their face, but contends that as im- plemented by Respondent Article II, Section 2, and Article VIII, Section 2, violate Section 8(e) of the Act .5 Gefland has been engaged for some years as a roofing contractor in the Miami area and generally employed mem- bers of a Roofers local with whom it hada contract. Prior to May 21, 1970, Gelfand had no contract with Respondent and employed members of the latter only on very rare occa- sions, and when they were employed it was always on a 5 The 8(e) allegations of the complaint herein relate only to the contract between Gelfand and the Union The complaint contains no allegation, nor is there any contention by the General Counsel, that the master contract executed by the Association on behalf of its employer members is in any way invalid. Counsel for the Association , which was permitted to intervene only with respect to the 8 (b)(4)(B) allegations , and who is also counsel for Cam- bridge and Continental , argues that, notwithstanding the absence of a charge and allegations in the complaint, the evidence shows the contract provisions above referred to were implemented by Respondent against Union Air Con- ditioning, Inc (herein Union Air), and United Sheet MetalCompany (here- in United), who are members of Association , in precisely the same manner as they were against Gelfand, that the issue was therefore fully litigated, and that an adjudication should be made here that the clauses referred to are equally invalid with respect to Union Air and United. For reasons stated in the section hereof entitled "The Remedy," I deem it unnecessary to make the adjudication counsel requests , assuming I have the authority to do so. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obsite and never in the fabrication of sheet metal items. indeed, the record is clear that prior to May 1970 Gelfand had no facilities to fabricate such items, and all such sup- plies, such as stucco stops, gravel stops, gutters, and down- spouts, it purchased from local distributors, including East Coast Supply Company, Intercoastal , Inc., and Southern Metals, Inc. (herein East Coast, Coastal, and Southern, re- spectively). The record is clear that the distributors men- tioned are not under contract with Respondent. The Specific Jobs Involved The Centex-Winston Condominium Job Centex-Winston is engaged in real estate development, and the construction of dwelling units. Its project at Miami Beach , Florida, involves the construction of seven high-rise condominium apartment houses . Centex-Winston is its own general contractor , but has subcontracted portions of the work to various contractors including Gelfand , which has the contract for roofing ; Dublin Company which is the prime mechanical contractor ; and Metal Fabricators, Inc., for the installation of heating and ventilating ducts. Gelfand began work on the Centex -Winston job in Sep- tember 1970 and preparatory thereto delivered to the jobsite certain materials, including stucco stops and gravel stops to be used by his employees who were members of a Roofers Union, to performliis contract with Centex -Winston. Some- time thereafter Lenny Gelfand, a partner in Gelfand Roof- in.g, was approached on the jobsite by Martin Gershowitz, whose status will be hereafter discussed and who was on the job as a part of a crew employed by Metal Fabricators. Gershowitz asked Lenny Gelfand where he got the stucco and gravel stops , adding that Gelfand could not use them on the job because they did not have a union label on them. Gershowitz then cautioned Gelfand that if he persisted in using the stucco and gravel stops he (Gershowitz) would walk' off the job and that other members of Respondent working for other contractors would do likewise. Lenny Gelfand inquired by what authority Gershowitz spoke and, according to Gelfand ,Gershowitz replied that he was the union steward on the job. Gershowitz denied not only that he made the latter statement to Gelfand , but denied that he was ever vested with authority as a union steward, or that he ever acted as such , claiming that he acted only as an individual member of the Union. Apparently as a result of his conversation with Gershow- itz, Lenny Gelfand telephoned Union Agent Strong and asked the latter who Gershowitz was. According to Gelfand, Strong replied that Gershowitz was Respondent 's steward on the Centex-Winston job . Strong denies not only that he made the latter statement , but denies that the Union ap- pointed stewards for any construction obsites . The issue thus raised is hereafter disposed of. Gelfand then asked Strong about using the stucco and gravel stop and, after telling Strong that he had purchased them from local supply houses, the latter stated that Gelfand could not use the material , nor could he use members of the Roofers Union to put them on, and that if Gelfand insisted on doing so there would be a picket on the job and a work stoppage would result. Thereafter, in October 1970, when Lenny Gelfand deliv- ered additional stucco stops and other sheet metal materials for use on the Centex-Winston job, he was again met by Gershowitz who stated , in the presence of Centex- Winston Assistant Supervisor Kluger , that the material could not be used on the job because it did not have union labels and warned Kluger that Respondent 's members employed by Metal Fabricators would walk off the job if there was any attempt to use metal not bearing the union's label or if employees who were not members of Respondent were as- signedyto install the same . Aproximately a month later, when Dublin sought to deliver some air-conditioning stands to the job, Gershowitz told Dublin Foreman Eigner and Centex-Winston Assistant Superintendent Kluger that the air-conditioning stands were nonunion because they did not bear union labels and should not be accepted. When Eigner and Kluger saw fit to ignore Gershowitz' warnin , directing that the stands be unloaded, Gershowitz andg the other members of Respondent employed on the job by Metal Fabricators engaged in a work stoppage which lasted about 2 hours. According to Gershowitz, the men returned to work when the stands were unloaded, because they were not being worked on .6 Abraham Gelfand, likewise a partner in Gelfand Roof- ing, also had several conversations with Union Agent Strong relating to this issue. One of these occurred in late September at Gelfand's premises . On this occasion Strong told Gelfand that the latter was not to use the metal material he had purchased for the Centex-Winston job because it was not union made, and that if Gelfand did' so he (Strong) would tell the roofers not to install it and if he found any job on which Gelfand attempted to use such material he would put a picket on it. Strong also told Gelfand that he was going to bring charges against the latter pursuant to the grievance procedure of the contract, but that he would re- frain from doing so if Gelfand would donate to the Variety Children's Hospital, the sum of $150 being the amount Strong calculated to be the difference in wage cost had the metal in question been fabricated by members of Respon- dent. Gelfand, regarding the hospital as a worthy charity and feeling that it would be worth the amount asked to get Strong not to pursue the matter further, took a check for $150 to Strong's office the following day. While a letter transmitting the check to the hospital was being prepared, Strong and Gelfand went out for coffee. At this time Strong told Gelfand that the $150 covered only the situation they had discussed the preceding day, but that he had other situations with respect to which he would file charges. Thereafter, by letter dated October 28, 1970, Union Agent Strong filed a grievance against Gelfand pursuant to the contract, claiming that the purchase of certain sheet mate- rials for use on the Centex-Winston job and a Holiday Inn job violated Article II, Section 2, of the contract. Abraham Gelfand had another conversation with Strong about mid-November. On that occasion Strong telephoned Gelfand and asked that the latter give work to a member of the Union. Gelfand stated that he had no work immediate- ly, but would be able to use the man the following week. Strong insisted, however, that the man be put to work that day. Gelfand replied that the only work he-had for the man that day would involve working on stucco or gravel stops that he had purchased from the local supply houses. Strong replied that he did not want the man working on such materials, but insisted that Gelfand pay the man for the entire day. Gelfand refused, saying the man had performed no work, and accused Strong of shaking him down." On this occasion Strong also told Gelfand that all employers under contract with the Union made the stucco and gravel stops in their own shops. When Gelfand took issue with that statement and pointed out that he (Gelfand) had to pur- 6 Gershowitz admits the discussion with Kluger and Eigner, as well as the fact that the men ceased work, but claimed that such stoppage was the individual act of the men because of their dissatisfaction over the fact that nonunion materials were being brought to the job. SHEET METAL WORKERS , LOCAL 223 61 chase such items because he had no shop in which they could be made, Strong stated that if Gelfand continued to purchase such materials from local supply houses he (Strong) would file more and more grievances; that this would cost Gelfand "a lot of money.' and reminded Gel- fand that he (Strong) had helped to put quite a few employ- ers out of business including Gelfand's brother-in-law; and that he was going to try to do the same to Gelfand.7 The Parkway Hospital and Palmetto Hospital Jobs The Parkway job involves the remodeling and enlarge- ment of the Parkway General Hospital, while the Palmetto job involves the construction of a new hospital. With respect to each job, the work to be performed is detailed in plans and specifications prepared by Smith, Korach & Associates, Architects- Engineers . The general contractor on each job is Edward J. Gerrits Construction Company. With respect to each job, Gerrits subcontracted to union Air the work of furnishing all labor and material necessary to effect a complete and functioning air-conditioning system, all in a strict accordance with the aforesaid plans and specifica- tions. As to both jobs the plans and specifications provide, inter alia, that in connection with the air conditioning there would be installed at indicated locations a designated model number of a Cambridge prefabricated filter unit, or a unit of equal performance, provided the substitution had the prior approval of the architects and consulting engineers in charge of the-project. Union Air is an air-conditioning and sheet metal contrac- tor in the Miami area. It is a member of Florida East Coast Sheet Metal Contractors Association; and as such is a party to and bound by the contract which the Association execu- ted with Respondent. In accordance with said contract, Union Air employs members of Respondent in its sheet metal shop, as well as on construction pro ects. To perform its contracts with respect to the Parkway Hospital and Pal- metto Hospital jobs, Union Air ordered from Cambridge the filter units designated by the plans and specifications. 8 When the Cambridge units arrived at the Parkway Hospi- i The findings in this section are based on the credited testimony of Lenny and Abraham Gelfand. In some respect their testimony is in conflict with that of Gershowitz and Strong, but I do not credit the latter Particularly in the case of Strong, because of his demeanorwhile testifying , including the fact that I found him to have been deliberately evasive , I have concluded that I cannot credit him except in those instances where (a) the particular fact is not in dispute ; (b) his testimony is in the nature of and admission against interest ; or (c) he is corroborated by other evidence which I find credible. 8 The units referred to consist of a filter made of some media , usually fiber glass, bound into a frame . The framed filter fits into a so-called rack, some of which are simple , but often may be rather complicated in design . The rack in turn fits into or becomes a part of the duct system and is designed to filter the air that is to enter the area to be air -conditioned . With the ordinary air filter efficiency is rather low-from 2 to 10 percent-but this is regarded as adequate for the usual installation. However for clean rooms in hospitals or research areas, or in areas where it is sought to keep out heavy smoke or odors, there has in recent years been developed so-called high efficiency filtration systems which range in efficiency from 30 percent to absolute. Cambridge, as well as Continental , which is also involved in this proceeding, make units consisting of the filters and what is variously referred to in the record as a frame , a housing, a carrier , but most frequently as a rack, which are built as a unit and pretested for efficiency , and if purchased and used as a unit are guaranteed by the manufacturer to perform properly at the spec- ified rate of efficiency. As hereaftermore fully discussed, it is because of the nature of the structures involved , and the fact that Cambridge and Continen- tal units are pretested and warranted to operate at a stated rate of efficiency, that caused the architects and engineers to specify that those units be used on the jobs involved , rather than have the racks fabricated in the sheet metal shops operated by the air-conditioning subcontractor , as had frequently been done in the past. taljob sometime early in October 1970, Union Air Manager Eden learned that the members of Respondent employedby Union Air were refusing to handle or install the Cambridge units. For the purpose of reaching some agreement pursuant to which his employee members of Respondent would in- stall the Cambridge units , Eden telephoned Valdestri, an admitted agent of Respondent, and arranged to meet the latter at the jobsite a day or two later. At this meetin attended by Valdestri, Eden, and Hanshaw, a member of Respondent employed by Union Air, Valdestri told Eden that members of Respondent would not handle any units that did not have union labels on them, and if such was the case Union Air would have to fabricate the rack portion of the unit in its own sheet metal shop. Valdestri also stated that, while Union Air could purchase prefabricated filter racks, it had to purchase a rack which had a union label on it or Respondent's members would not install it. The parties then examined the Cambridge units on the job and, ascer- taining that they did not bear the required label, Valdestri repeated that the members of Respondent would not install them because such labels were lacking. Eden explained to Valdestri that Cambridge units had been ordered for the job because they were specified in the plans and specifications, had to be used to comply with his contract, and asked if there was anything that could be done that would result in Respondent's members installing them. At this point Val- destri stated that, if Union Air would agree to pay the difference in the wage rate paid to Respondent' s members and the wage rate paid to the employees who fabricated the Cambridge units , Respondent's members would install them, and that while he did not then know the wage rate paid Cambridge employees he could ascertain that figure. Valdestri, Eden, and Hanshaw, after further examination of the units, agreed on the number of hours it would take to fabricate the Cambridge units delivered to the Parkway job, so that when Valdestri ascertained the difference in wage rates it would be a mere matter of multiplication, and Eden agreed to pay whatever figure that formula might require. Eden then told Valdestri that Cambridge units had also been ordered for the Palmetto Hospital job, so that the same problem would arise there, and asked ifit might be resolved in the same way so that there would be no delay in the installation of the units on that job. Valdestri agreed that the same formula might be applied, and that Respondent's members would then install the units at the Palmetto job. A few days later Valdestri telephoned Eden that he had ascertained the wage rate at Cambridge, and that based on the estimate of hours previously agreed upon Union Air owed about $400. Eden paid the amount so agreed upon to the men, and they then installed the Cambridge units on the Parkway job. When the Cambridge units arrived at the Palmetto job sometime in November 1970 Eden was out of town. Upon his return, he was informed by his foreman on that job that, when the units arrived and were found not to have union labels, Respondent's members employed by Union Air re- fused, for that reason, to handle them; that he telephoned Strong and the latter stated that the men were not to handle the units;9 and that the units had been sent to storage. Eden thereupon telephoned Valdestri and told him that his mem- bers employed at the Palmetto job had refused to handle the Cambridge units, and that it was the same problem that had arisen at the Parkway job and which they had agreed to settle as they had at Parkway. Valdestri told Eden that he was aware of the situation; that he also had been out of 9 This testimony was received only for the purpose of establishing that Eden was so informed and to explain his future conduct by reason of that information, and not for the truth of the statement. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD town when the Cambridge units were delivered to the Pal- metto job; and that some of the men had called the union hall and Strong, not knowing of the arrangement he and Eden had made for settlement of the problem, instructed the men not to accept or handle the Cambridge units. Valdestri also told Eden that the problem at Palmetto could be han- dled in the same manner it had been handled at Parkway, and that he would examine the units that had been refused and call him later with respect to the amount due. Several days later Valdestri called Eden and stated that he had examined the units for the Palmetto job and that under the formula they had agreed upon the amount due was $270. Eden paid this amount to the men, redelivered the Cam- bridge units to the Palmetto 'ob, and they were then in- stalled by Respondent's members.10 The Lutheran Medical Center Job This job involves the construction of a medical center to be built in accordance with plans and specifications prepared by Steward-Skinner Associates , Architects . The mechan- ical contractor on the J]ob, Sam L. Hamilton, Inc., subcontracted to United the furnishing and installation of certain sheet metal equipment , includmg,inter alia, certain air handling equipment , all in accordance with the plans and specifications prepared by Stewart-Skinner Associates. The plans and specifications called for United to furnish and install at indicated locations a designated model num- ber of a prefabricated filter unit manufactured by Cam- bridge, or unit of other designated manufacturers , including Continental, of equal performance , provided that such sub- stitution had the prior approval of the architects and con- sulting engineers in charge or the project . Before starting work on the project United ascertained that units of equal performance could be obtained from Continental at less cost than from Cambridge and asked the appropriate par- ties for permission to make the substitution . In due course the substitution was approved , and United purchased the required Continental filter units and arranged for their de- livery to the job site." United is an air -conditioning and sheet metal contractor in the Miami area . It is a member of Florida East Coast Sheet Metal Contractors Association and is a party to and bound by the contract which said Association executed with Respondent . In accordance with said contract United em- ploys members of Respondent both in its sheet metal shop and on its construction projects. Sometime in October 1970, United truckdriver Brown undertook to deliver a shipment of Continental filter units 10 Based on the credited testimony of Eden Valdestri admits that he and Eden met at the Parkway job and discussed the Cambridge units. He denied that he told Eden that the men would not handle material that did not have a union label and claims that he told the men that the presence or absence of a union label made no difference , that in either event the men should install the units and if need be the Union would file a grievance under the contract, but that the men, insisting that they would not handle non-labeled products , told him to "go to hell ." Valdestri also denied that he told Eden that he was free to purchase filter racks from any source so long as they had a union label, and claimed that he told Eden that the problem centered not on the presence or absence of a union label, but on the enforcement of the wage differential provisions of the contract . Valdestri further denied that the Palmetto job was mentioned by either party during their discussion on the Parkway job and claimed that he settled that issue with Union Air outside Superintendent Harley McDougal . He did not deny that he told Eden, as the latter testified , that in his absence Strong had told the men at the Palmetto job not to handle the Cambridge units . To the extent that Valdestn 's testimo- ny confkcts with that of Eden, I credit the latter. 11 Continental filter units , like those of Cambridge (see fn. 8, supra), are pretested and warranted to perform at a stated rate of efficiency. to the Lutheran Medical Center job, but the delivery was refused by United Foreman Frederick, who is a member of Respondent. Frederick testified that he refused the delivery because the units did not have a union label on them, and for that reason the men, who are also members of Respon- dent, would neither unload nor install them. When asked if it was union policy for the men to refuse to handle materials which do not have a union label, Frederick replied, "Yes, it's up to the man himself on the job." According to Freder- ick, he discussed the units involved with two of the men on the job, but the record does not indicate the nature of that discussion. Several weeks later United sent its driver, Ro- derick, to redeliver the Continental units to the Lutheran Medical Center job. About the same time Roderick arrived at the job, United President Keen also arrived, and both Keen and Roderick were approached by Foreman Freder- ick. Keen told Frederick that units on the truck were the same ones that had been sent to the j'ob previously and which Frederick had previously refused, but explained that he (Keen) had spoken to the factory and had been advised that the "problem had been straightened out." Frederick then inspected some of the units on the truck and told Keen that he (Frederick) would have to check with the Union before he could accept the delivery. Keen followed Freder- ick to a construction trailer where the latter made a tele- phone call to the union office, speaking to one Richard Tucker, an admitted agent of Respondent. Keen heard Frederick say, "Tucker, we have some Continental filters on thejobsite. Is it all right to unload them." After listening for a short period, Frederick hung up the phone and told Keen he could not unload the filter units. Frederick testified that Tucker told him that Continental had not been straightened out yet, that there was nothing wrong with the filters, and that he should accept those, but the problem was "just the filter racks themselves." Frederick then returned to the United truck and told the driver that he could not accept the delivery and to return the material to United's yard, which was done.12 The Airport Jobs The Miami Port Authority awarded a contract for cer- tain remodeling work to be done at concourses 1, 2, and 3, Miami International Airport, in accordance with plans and specifications prepared by Steward-Skinner Associates, Ar- chitects. The general contractor on the job is not disclosed by the record, but the mechanical contractor is Poole and Kent Company. The latter subcontracted to United the work of supplying and installing sheet metal ducts and all filters required for air handling units, all as provided in the plans and specifications. The value of these contracts is $165,500. The contract let by the Airport is on a so-called base bid basis, which requires that the bid be in strict ac- cordance with the documents upon the basis of which such bids are solicited. The specifications above referred to re- ire that in connection with the air handling units there shall be installed at indicated locations a designated model number of a Cambridge prefabricated filter unit. United President Keen testified that having learned from many years' experience that it would be a "waste of time" to try to get approval to substitute another brand of filter unit he made no such effort and purchased the designated Cam- bridge filter units to be delivered to the Airport jobs. Late in October 1970, United driver Sampson was sent to 12 The foregoing findings are based on the uncontradicted and credited testimony of Keen and Frederick. Union Agent Tucker who testified as a witness for Respondent with respect to other matters , after Frederick testi- fied , did not deny the remarks attributed to him by Frederick SHEET METAL WORKERS, LOCAL 223 63 the Airport job to deliver a number of Cambridge filter units to be installed there by United . At the' time United had three sheet metal employees on the job, all members of Respon- dent . These were hill Lock , Tony Falita, and Joe Thomp- son, the latter being the foreman of the crew . Arriving at the Airport, Sampson located Thompson , presented him with some order sheets, and stated that he had material to deliver for the job . Thomson replied, "All right , we will go down and see what you ve got . Thompson and Sampson, along with Lock and Falita , then went to truck , and Lock climbed in inspecting the material . After a few minutes Lock stated "he couldn't handle this stuff," and Thompson asked why. Lock replied , "There is no union stickers on these ." Thomp- son, Lock , and Falita left Sampson with Lock stating that they were going to call the union hall . After some period, the three returned to the truck and told Sampson that the would unload the boxes (in which the filters were packed, but could not touch the crates (containing the rack portion of the Cambridge units ), and that those would have to be returned to the United yard , which Sampson did. Other Evidence of Inducement and Coercion as to the Lutheran Medical and Airport Jobs As heretofore indicated the Continental and Cambridge filter racks, which United attempted but was unable to de- liver to the Lutheran Medical and Airport jobs, were re- turned to the United yard, where they remained for an extended time . During this period certain events occurred which will now be detailed. Observing that the aforementioned units were in the yard for a period, Martin Ballas , an officer of Respondent and its chief steward at the United Sheet Metal shop, telephoned Union Agent Strong and told the latter that there were some Continental and Cambridge filter units in the United yard that did not have union labels on them, and asked Strong whether they were union made or not. According to Ballas, Strong stated that he would have to look into the matter and would let him know, but that Strong never did so.13 About 13 Strong did not testify to any telephone conversation with Ballas . Strong, under cross-examination by the General Counsel, said that he first learned of the situation when he visited the United premises concerning another matter, sometime in November 1970, and at that time observed the units sitting in the yard, but did not examine them to see if they had labels or not, and made no mention of any conversation with Ballas . However, on cross- examination by the Charging Party, Strong testified that, before going into Keen 's office to talk about the other matters that prompted his visit to United, he stopped in the shop to greet the men and that his steward, presumably Ballas, told him there were "some filter racks out in the area"; that he responded, "Let's take a look at them"; and that nothing else was said between them . Although Strong claimed throughout that the presence or absence of a union label was immaterial , and whether the material was made in union shop or not was of no consequence , he admitted that his reason for wanting to look at the material was that he "wanted to see who made them," and when asked what relevancy the identity of the producer of the units had in his thinking he replied that he wanted to find out "if there would be a problem." Additionally, Strong admitted that when he examined the units and found that they had not been made by sheet metal workers, this is what convinced him that he had a grievance against United for the difference in wages. How he ascertained that the units had not been made by sheet metal workers, Strong did not explain . Quite obviously, if as he claimed he had to examine the units to determine if they were made by sheet metal workers, the answer must lay in the fact that the units did or did not bear a union label. Indeed , at one point , because I regarded Strong's testimony so evasive, I commented to Respondent's counsel, "I have to pass on certain issues here, and I want to understand the testimony ," and told counsel , "I hope you understand what I mean." This is but one of a number of examples in the record which caused me to conclude that Strong was an evasive and unrelia- mid or late November 1970, Strong discussed with Keen the Cambridge and Continental units then in the United yard. As United President Keen credibly testified, Strong then told Keen that his members employed by United would not handle the Continental and Cambridge units if they did not bear a union label. Nothing further appears to have oc- curred until apparently late January or early February 1971. At that time strong, accompanied by United Shop Foreman Ronzo and steward Ballas , went to Keen's office and told the latter that United could use the Continental and Cam- bridge units only if it would pay the difference between the Union's contract wage scale and the wage scale under which the filter units were produced. The group then went to the yard where Strong, the shop foreman, and the steward coun- ted the number of filter units and made an estimate of the number of hours that would be required to fabricate the filter frames here involved. While they were doing this, Keen returned to his office. In a short while Strong, the shop foreman, and the steward came back to Keen's office, and Strong told Keen that he had estimated the number of hours that would be required to fabricate the units in the yard, and that while he did not know the exact wage rate paid at Continental and Cambridge he could make a fairly accurate estimate 14 and on that basis concluded that the amount thus owed by United was $1,750,15 to be divided among all the men working for United as of November 1. Later in this conversation Strong mentioned that perhaps the money could be contributed to a charity.1, Keen at this point un- dertook to explain to Strong that prefabricated units were required 07 the Airport jobs, being on a "base bid" basis, it was useless to even ask for permission to substitute; and that he had to supply the specific item called for, by trade name and model number. Strong's response was that he wasn't going to "let some damned engineer specify his men out of work." A day or two following the meeting in Keen's office when Strong stated that the difference in wages amounted to about $1,750, Strong, pursuant to the contract, filed a griev- ance against United on February 1,1971, charging the latter with violating Article 2, Section 2, and Article VIII, Section 2, of the contract. According to the grievance, the contract violation arose from the fact that United "purchased and had delivered to it certain filter racks manufactured by Continental ... and Cambridge ... and claimed that several union members lost work because of the violations, and demanded they be made whole for the pay they lost and damages for what the trust funds lost because said workers did not work. The record does not indicate what, if any, disposition was made of this grievance. Nor does the record indicate whether the Continental and Cambridge filter units were ever installed at the Lutheran Medical and Airport jobs, or what adjustment, if any, was made of the dispute regarding them. ble witness, and that I should credit his testimony only in those instances stated in fn . 7, supra. 14 Strong testified that as Continental and Cambridge were both produc- tion shops, their wage rates would have to be considerably less than construc- tion rates specified in Respondent's contract. 15 Ballas testified that the amount mentioned by Strong was "roughly" $ 1,800. I deem it unnecessary to resolve the conflict. i6 About 2 or 3 weeks later, Strong telephoned Keen and asked what the latter thought of the hot lunch program for the elderly and suggested that, if he wanted to know more about it, he should call a Mrs Hunt who was in charge of the program. 17 My findings in this section are based on the credited testimony of Keen, corroborated in part by the testimony of Ballas, a witness called by Respon- dent. Strong's testimony regarding these events conflicts in many respects with that of Keen, but as indicated I do not credit Strong. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Provisions of the Union's Constitution this Agreement, the Employer agrees that when sub- contracting for prefabrication of materials covered herein, such prefabrication shall be subcontracted to fabricators who pay their employees engaged in such fabrication not less than the prevailing wage for com- parable sheet metal fabrication, as established under provisions of this Agreement. In view of this defense the Charging Party, Intervenor, and Respondent, but not the General Counsel, introduced considerable evidence relating to whether it was the custom and practice in the industry for the contractor to purchase filter units of the type here involved or to have them fab- ricated in the sheet metal shops of the contractors. On be- half of Respondent the evidence shows that, in virturally all shops under contract with Respondent, members of the Union have for many years fabricated for installation on the jobsite filter racks of virtually every type and size. Indeed, United President Keen testified that his Company has an equipped shop and if supplied with adequate information it can produce anything to be made of sheet metal. In some instances, according to the testimony, in the shop or at the jobsite, Joints or access doors of filter racks were sealed or gasketed with neoprene or some similar material to make an air tight joint and prevent air leakage, and from this Re- spondent argues that filter racks produced by its members in shops operated by the contractors were in all respects as efficient and reliable as the units produced by Cambridge and Continental. Members of Respondent who testified for it on the subject of custom and practice readily admitted, however, that the filter racks they produced were neither tested nor rated for efficiency, and that their employers did not have the equipment necessary for such tests, nor did they have the knowledge or experience to conduct such tests. The Charging Party and the Intervenors contend that the various sheet metal shops are unable to give reliable assur- ance that they have the ability and technical knowledge to produce filter units that will perform at the efficiency called for by the several plans and specifications here involved. James M. Mitchell, Jr., a registered professional mechanical engineer , who specializes in designing and specifying for air-conditioning systems, and whose education, training, and experience is well demonstrated by the record, testified that in critical areas such as hospital operating rooms, inten- sive care units, or places where radioactivity, heavy smoke, or gases were a problem, in short where the cleanliness of the air is a critical factor, no engineer who is concerned with his professional reputation and protecting the interest of the owner of the structure being erected would consider accept- ing a locally fabricated filter rack, but would insist upon a unit that had been retested and determined to have an efficiency rating adequate to accomplish the result for which the building had been designed and was being con- structed. Mitchell freely conceded that a locally fabricated filter rack might in fact perform as well as, or perhaps even better than, the specified factory prefabricated unit, but that there was no satisfactory way of testing the locally fabricat- ed rack before putting it to use, and in the event it failed to perform properly there was no recourse, whereas the factory fabricated unit was warranted and, if it failed to perform in accordance with its ratings, the factory would correct the difficulty with the unit or provide another that would per- form in accordance with the ratings.19 19 Joseph Maroun, called by Respondent as an expert witness , testified in substance that the only function of the filter rack was to hold the filter, and so long as air did not bypass the filter the rack played no part in the efficiency of the unit, that he knew of no way that the factory could test the efficiency of a unit because the racks must be altered on the jobsite to be accommodat- In support of his contention that the Union's activity was not directed at the preservation of work for its members, but rather at promoting a campaign to boycott products that did not bear the label of its international Union, the Gener- al Counsel cites and relies upon certain provisions of the International's constitution. The General Counsel points to Section 10 thereof which makes it "the obligation and re- sponsibility" of every local union and every member of the International to comply with the provisions of said consti- tution, and to refrain from any conduct which interferes with the per- formance by the Association or its subordinate units . .. from any conduct which defeats or is designed to defeat or subvert the lawfully declared and established policies and objectives of this Association .... Article 23, Section 1, of the constitution provides for the design and issuance of a union label with markings that the local unions to whom it is distributed may identify. Section 4 of the same Article strictly limits the use of the label to: union-made products, manufactured, assembled and fabricated by none but good standing members of a local union affiliated with this International Associa- tion and all members must recognize such union label. No local union label of this Association shall be applied to any sheet metal work that has not been so manu ac- turecassembled and fabricated [emphasis supplied]. Section 7 of the same Article requires every local union to: . urge and encourage the use of union labels on all strictly union-made sheet metal products, and shall urge and educate the public to demand the union label as a guarantee of first class workmanship performed by union labor. And finally Article 24, Section 1, provides that no enterprise shall be considered "a union sheet metal shop" or "a union sheet metal business," unless: . the owners sign and remain parties to an agree- ment with the local union of this Association in whose jurisdiction such shop or business is located.18 Union's Defense of Work Preservation Although Respondent argues that at no time material did it induce or encourage any employee to refuse to handle the filter units, or threaten , coerce, or restrain any person, which alone would preclude a finding that Section 8(b)(4)(B) of the Act was violated , it argues also that the facts fail to establish that it had the proscribed cease doing business object, be- cause under the Supreme Court's holding in National Wood- work Manufacturers Association v. N.L.R . B., 386 U.S. 612, its sole object was to preserve work for its members which they had traditionally performed . In support of this argu- ment Respondent relies in part upon Article II of the con- tract, which provides: Section 1. No Employer shall subcontract or assign any of the work described herein which is to be per- formed at ajobsite to any contractor , subcontractor or other person or party who fails to agree in writing to comply with the limitations , those relating to union security, rates of pay and working conditions, hiring and other matters covered hereby for the duration of the project. Section 2 . Subject to other applicable provisions of 18 Although afforded an opportunity to show that the constitutional provi- sions should not be interpreted as the General Counsel contends, Respon- dent did not submit such testimony. SHEET METAL WORKERS, LOCAL 223 65 CONTENTIONS AND CONCLUSIONS 1. The Parkway, Palmetto, Lutheran Medical, and Airport jobs (a) Upon consideration of the entire record, I find and conclude that Respondent's conduct constituted the induce- ment and encouragement of the employees of the sheet metal contractors involved on thesejobs which is proscribed by Section 8(b) (4)(i) of the Act. I reach this conclusion for the following reasons: (i) At the Parkway job Valdestri told Union Air Manager Eden in the presence of its member, Hanshaw, employed by Union Air, that the men would not install products that did not carry the union label. (ii) On the Palmetto job, Valdestri told Eden that, while he (Valdestri) was away from the office, some of the men on the Palmetto job had called Union Manager Strong to ask if they should handle the Cambridge units that did not bear union labels, and that Strong, not knowing of the set- tlement made on the Parkway job, instructed the men not to accept or handle them. (iii) Although Valdestri claims that he told the employees on the Parkway job to install the units whether they had a label or not, and that if need be the Union would file a grievance, but that the men persisted in their refusal to handle nonlabeled products, telling Valdestri to "go to hell," it is significant to note that, as soon as Union Air paid the money which Valdestri claimed was due, the men promptly installed the units notwithstanding the fact that the basis for their refusal to handle-the absence of union labels-still existed . Where union members simultaneously refuse to perform services for a stated reason, and after objections voiced by their union have been satisfied, such members abandon their refusal to perform services without the basis for their initial refusal being satisfied, it is reason- able to infer, as I do, that their union ratified if it did not authorize the initial refusal to handle, and is therefore re- sponsible for such initial refusal to perform services . Cf. Los Angeles Building and Construction Trades AFL et al., 105 NLRB 868, 872. Moreover, the events of this incident follow the same plan or pattern which Respondent followed in incidents heretofore and hereafter referred to, and with re- spect to which direct evidence of inducement exists. (iv) Under the circumstances of this case, I must and do find and conclude that the conversation between Union Agent Tucker and United employee Frederick, wherein the latter was told that there was a problem with the Continen- tal units that had not been straightened out, constituted the inducement or encouragement proscribed by Section 8(b)(4)(i) of the Act. Tucker must have known that what he told Frederick would be communicated by the latter to his fellow employees on the job, and if not an outright order to refuse to handle Continental products was at the very least an attempt to influence or persuade them not to do so. This is sufficient to constitute inducement or encouragement. International Brotherhood of Electrical Workers, Local 501 v. N. L. R. B., 341 U.S. 694,70 1-702. ed and connected to the ducts ; that factories guarantee only the efficiency of the filter , never that of the rack , except that it will hold the filter and for structural defects, and that the sheet metal shop can do that just as well; that if the unit is properly installed and sealed against air leaks the air must flow through the filter , and perform properly; and that the only reason that occurs to him for an architect or engineer to specify a factory prefabricated rather than a unit locally fabricated is that the latter is more expensive . In the view I take of this case it is unnecessary to decide whether the testimony of Mitchell or Maroun is the more accurate. (v) Although there is no direct testimony that the three employees involved in the Airport incident did in fact tele- phone the union hall and receive instructions what they should do with respect to Cambridge units, the fact that they returned to the truck and accepted the boxes in which the filter portions of the units were packed, but declined to accept the rack portion of the units, fitting so precisely into the Union's pattern of conduct, as herein found, as to make it reasonable to infer, as I do, that the United employees at this job did telephone the union hall for advice, and that their action in accepting art and rejecting part of the ship- ment was in strict accordance with to advice they received from the Union. That such action on the part of the Union constituted the proscribed inducement and encouragement is clear , as I have heretofore indicated. (vi) As heretofore found Ballas , Respondent's steward at the United shop, telephoned Union Business Manager Strong, telling the latter about the presence of Continental and Cambridge units that did not have union labels, and asking whether they were union made or not, and that Strong told Ballas he would look into the matter and let him know, but did never did so. Strong's extended failure to respond to Ballas' inquiry was but another way of telling him that the Continental and Cambridge units were, in the Union's view, "hot" and should not be handled, and Strong subsequently reiterated the same message when he told United President Keen, in the presence of Ballas and Shop Foreman Ronzo, that United could use the units in question only if it would pay approximately $1,750 for division among the men or as a contribution to a charity, that sum being the estimated difference between what the United employees would have earned had they fabricated the units under Respondent 's wage scale and the wage scale at which the Cambridge and the Continental emplo yees were paid. The "message" Strong thus conveyed to Ballas, and through him to the other employees of United, I likewise find to be the inducement or encouragement proscribed by Section 8(b)(4)(i). (b) I also find and conclude that Respondent threatened, coerced, and restrained Union Air and United, by the fol- lowing: (i) The inducement and encouragement above found hav- ing caused employees of Union Air and United to refuse in the course of their employment to perform services for their respective employees, said conduct to that also constituted restrains and coercion of said employers. Ralph H. McClain, et at, 158 NLRB 1101, 1106. (ii) Valdestri's statement to Eden , general manager of Union Air, and Strong's statement to United President Keen that Respondent's members would not handle or in- stall filter racks that did not bear the union label. Cincinnati Sheet Metal & Roofing Company, A/K/A Ajax Company, 174 NLRB No. 22. (iii) Filing the charges on February 9, 1971, pursuant to the grievance procedure of the contract, alleging that United violated Article II, Section 2, and Article VIII, Sec- tion II, of the contract because it purchased filter racks from Continental and Cambridge . Because I find and conclude, as hereafter set forth, that Respondent's object was second- ary in nature, and said grievance was filed in furtherance of that objective, it constituted the restraint and coercion pros- cribed by Section 8(bx4)(ii). Cincinnati Sheet Metal & Roof- ing Company, A/K/A Ajax Company, 174 NLRB No. 22, enfd. as modified 433 F.2d 1189 (C.A.D.C .); Cincinnati Sheet Metal Rooting Company, A/K/A/Ajax Company, 174 NLRB No. 125, enfd. 425 F.2d 730 (C.A. 6); East Bay Counties Dry Cleaners Association, 167 NLRB 45, 50-51. 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Centex-Winston Based on his contention that Gershowitz was the Union's steward on the Centex-Winston job, and that Respondent was therefore responsible for his actions, the General Coun- sel argues that Section 8(b)(4)(i) and (ii) was violated by (1) the work stoppage that Gershowitz instigated, and (2) his threat to Gelfand to engage in further work stoppages if the latter attempted to use products which did not bear a union label. However, in my view, it is unnecessary to consider the foregoing contentions of the General Counsel . Assuming without deciding that Respondent is not responsible for what Gershowitz did, it is clearly responsible for the con- duct of its business manager and , upon consideration of the entire record, I find and conclude that Strong threatened, restrained, and coerced Gelfand , within the meaning of Section 8(bx4)(ii), by the following: 1. Strong's statements to both Lenny and Abraham Gel- fand that sheet metal items which the latter normally pur- chased from various supplies could no longer be used on Gelfand's job because they did not have union labels on them, and if Gelfand persisted in using sheet metal products which did not bear the union label, any job they worked would be picketed and a work stoppage would result. 2. Strong's statements to Abraham Gelfand that he would continue to pressure the latter , would continue to file griev- ances against him, and would do what he could to put him out of business , as well as the filing of the grievance against the latter on October 28, 1970. All of these, I find and conclude, were threats of economic action against Gelfand unless the latter succumbed to the Union's demand that Gelfand cease using the goods of any producer whose prod- ucts did not bear what Respondent regarded as the proper label and constituted the threats , restraint , and coercion proscribed by Section 8(bX4)(ii) of the Act. The Object Having reached the conclusion that Respondent engaged in conduct proscribed by Section 8(b)(4)(ii) and (ii) of the Act, it becomes necessary to determine whether that con- duct had the cease doing business object roscribed by Section 8(b)(4)(B), as the General Counse?contends, or whether, as Respondent contends , its activity was directed solely at protecting and preserving the work opportunities of its employee members. In National Woodwork Manufacturers Association v. N.L. R.B., 386 U.S. 612, the Supreme Court held that neither Section 8 (e) nor Section 8(bX(4XB ) of the Act has any apph cation to union conduct or contractual provisions which have as their sole purpose the protection of the economic interests of employees by preserving their unit work. On the other hand , the Court made it clear that both sections of the Act apply where a contractural provision , or a union's con- duct, indicates that its purpose is "to satisfy union objectives elsewhere" (id. at 644). To determine whether the contrac- tual provision , or particular conduct, falls on one side of the line or the other , "The touchstone is whether [the Union's conduct] is addressed to the labor relations of the contracting employer vis-a-vis his own employees" (386 U.S. 645), or as stated somewhat differently by the Court of Appeals for the District of Columbia in Orange Belt District Council o Painters No. 48, AFL-CIO v. N.L.R.B., 328 F.2d 534, cite with approval by the Supreme Court in National Woodwork v. N.L.R. B., 386 U .S. at 645 , fn. 40: . the test as whether the clauses [or conduct] are "germane to the economic integri of the principal work unit," and seek "to protect and preserve the work and standards [the Union] has bargained for," or in- stead "extend beyond the [contracting ] employer and are aimed really at the union's difference with another employer." [328 F .2d at 538.] App 14 the facts of the instant case to the above-stated principles, I am convinced, and therefore find and con- clude, that Respondent was not motivated by the protection of work for its members or the protection of the work stan- dards for which it bargained , but rather by the fact that it wanted to prevent the use of products that did not bear the label of International Sheet Metal Association . I am per- suaded to this conclusion by the fact , as I have found, that Strong told Keen and Gelfand that Respondent 's members would not install products that did not bear the label of the International Union , and Valdestri not only told Eden the same thing , but added that, though Eden was free to pur- chase rather than fabricate filter units , he had to purchase those which bore the proper union label. Assuming that the Union could have validly refused to handle the products here involved in order to preserve or recapture for its mem- bers work they traditionally performed ,Respondent did not base its refusal on that ground . Instead , asI have found, it based its refusal on the ground that the products did not have a proper union label. In doing so Respondent was not addressing itself to the labor relations of Gelfand, Union Air, and United , vis-a-vis their own employees respectively, but rather to satisfy union objectives elsewhere , namely the labor relations of the manufacturers of the unlabeled prod- ucts, and hence its conduct was unlawful . A. S. Abel Compa- ny, 183 NLRB No. 99 . In this posture, what this case presents is the typical product boycott where the employees of A are directed by their union not to handle products produced by B, not because of A's labor policies , but be- cause B is following labor practices to which the Union objects , and seeks to force B to abandon . In that sense the union's dispute would be with B, and its activity directed against A is secondary in nature-one in which A not only lacks any interest, but has no power to correct except by ceasing to use B 's product . That such action on the part of Respondent violated Section 8 (b)(4)(i) and (ii)(B) of the Act is settled . N.L.R.B. v. Washington -Oregon Shingle Weavers' District Council, etc., 211 F.2d 149 (C.A. 9). Having found and concluded that Respondent's pressure on Gelfand was secondary in character , if follows that Arti- cle II , Section 2 , and Article VIII , Section 2, of the contract between Respondent and Gelfand , set forth above, were applied and sought to be enforced by Respondent in a manner which violates Section 8 (e) of the Act . I so find and conclude . Cincinnati Sheet Metal & Roofing Company, 174 NLRB No. 22 , enfd . as modified 433 F .2d 1189 (C.A.D.C.); Cincinnati Sheet Metal Roo /'in Company, 174 NLRB No. 125, enfd . 425 F .2d 730 (C.A. 6). In both cases the identical contractural provisions involved in the instant case were found violative of Section 8(e) because they were improper- ly implemented.20 Upon the foregoing findings of fact and the entire record in the case, I make the following: 20 In view of the conclusions reached I find it unnecessary to considerand do not decide ( 1) whether the Board's so-called right of control test (See discussion in A. S. Abel Company, supra, of the Board's decision in J. L. Simmons Company, Inc, 178 NLRB No. 54, and the cases cited at fn.,15), is applicable to the instant case , or (2) whether, as the Intervenors and Charging Parties contend, the Continental and Cambridge units were prod- ucts having such different characteristics as to be beyond what Respondent's members have constructed in the past ; or (3) whether Respondent's members have the ability or technical knowledge to build such a product. Under the facts of this case all of those questions are irrelevant to the issues which I regard as dispositive of the case. SHEET METAL WORKERS , LOCAL 223 67 CONCLUSIONS OF LAW 1. Union Air, United, Gelfand, Continental, and Cam- bridge are persons engaged in commerce and an industry affecting commerce, within the meaning of Sections 2(1), (6), and (7) and 8(b)(4)(B) of the Act. 2. Respondent is a labor organization within the meaning of Sections 2(5), 8(b)(4)(B), and 8(e) of the Act. 3. By inducing and encouraging individuals employed by Union Air and United to refuse in the course of their em- ployment to handle or work on the products of Continental or Cambridge, and by threatening, coercing, and restraining Union Air, United, and Gelfand, with an object of forcing or requiring Union Air and United to cease using, handling, or otherwise dealing in the products of Continental and Cambridge, or to cease doing business with Continental or Cambridge, and forcing or requiring Gelfand to cease using, handling, or otherwise dealing in the roducts of East Coast Supply Company, Intercoastal, Inc., -Southern Metals, Inc., and other producers of metal products not bearing a union label, or to cease doing business with such persons, Respon- dent engaged in and is en aging in unfair labor practices proscribed by Section 8(b)(4)(i) and (ii)(B) of the Act. 4. By maintaining, enforcing, and giving effect to Article II, Section 2, and Article VIII, Section 2, of the Standard Form of Union Agreement, entered into by Respondent and Gelfand on or about May 21, 1970, Respondent entered into an agreement which, as administered by Respondent, requires Gelfand to cease and refrain from handling, using, or otherwise dealing in the products of East Coast Supply Company, Intercoastal, Inc., Southern Metals, Inc., and other producers of metal products not bearing a union label, or to cease doing business with such persons, and thereby engaged in and is engaging in unfair labor practices pros- cribed by Section 8(e) of the Act. 5. The aforesaid unfair labor practices are unfair laborpractices affecting commerce within the meaning of Section2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices proscribed by Section 8(e) and 8(b)(4)(i) and (ii)(B) of the Act, it will be recommended that it be ordered to cease and desist therefrom, and to take certain affirma- tive action designed and found necessary to remedy the unfair labor practices found, and to effectuate the policies of the Act. Although the contract between Respondent and Florida East Coast Sheet Metal Contractors Association, Inc., and by which Union Air and United are bound, con- tains the identical provisions that are in the contract with Gelfand, and which have been found to have been unlaw- fully implemented, I have not made a finding that the con- tract with the Association was unlawfully implemented so as to violate Section 8(e), even though the Union's pressure on Union Air and United took virtually the same form and had the same object as the pressure on Gelfand. I have done so chiefly for the reason that no 8(e) charge was filed and the complaint contained no allegations in that regard so far as Union Air, United, or any other member of the Associa- tion is concerned. However, because the evidence does show the nature and object of Respondent's activity against Union Air and United, it is reasonable to infer that there exists the likelihood that Respondent will extend its unlaw- ful activity to other employers, unless a broad order is is- sued, which I shall recommend, to prevent it from doing so as was done in Cincinnati Sheet Metal & Roofing Company, 174 NLRB No. 22, enfd. as modified 433 F. d 1189 (C.A. D.C.) [Recommended Order omitted from publication.] Copy with citationCopy as parenthetical citation