Sheet Metal Workers Local Union No. 91

National Labor Relations Board - Board Decisions

Jun 7, 1989

294 N.L.R.B. 766 (N.L.R.B. 1989)

766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers Local Union No. 91 , affiliated
with Sheet Metal Workers International Asso-
ciation, AFL-CIO and The Schebler Company
Sheet Metal Workers International Association,
AFL-CIO and The Schebler Company. Cases
33-CC-853, 33-CB-2401-1, 33-CE-14, 33-
CC-854, and 33-CB-2401-2
June 7, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On November 9, 1987, Administrative Law
Judge Robert A. Giannasi issued the attached deci-
sion. The Respondents and the General Counsel
filed exceptions and supporting briefs, and the Gen-
eral Counsel filed an answering brief and a brief in
support of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings , findings,I and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Sheet Metal
Workers Local Union No. 91, affiliated with Sheet
Metal Workers International Association, AFL-
CIO, Rock Island, Illinois, and Sheet Metal Work-
ers International Association, their officers, agents,
and representatives, shall take the action set forth
in the Order.
agreement with Winger Contracting Company (Winger),
containing a so-called Integrity Clause which is violative
of Section 8(e) of the Act. The complaint also alleges
that Respondent International and Respondent Local
Union violated Section 8(b)(4)(ii)(A) of the Act by
threatening, coercing, or restraining Schebler Company
(Schebler) with an object of "forcing or requiring" it to
enter into an agreement containing the allegedly unlaw-
ful Integrity Clause and violated Section 8(b)(3) by con-
ditioning certain other agreements with Schebler on the
latter's agreement to the Integrity Clause. The Respond-
ent denied the essential allegations of the complaint. The
General Counsel and Schebler filed opening briefs, the
Respondents filed a responding brief and the General
Counsel and Schebler filed reply briefs. I
Based on the entire record in this proceeding including
the testimony of the witnesses and the arguments and
briefs of the parties, I make the following
FINDINGS OF FACT
I. BACKGROUND AND JURISDICTIONAL'MATTERS
Respondents are labor organizations within the mean-
ing of Section 2(5) of the Act.2
Illowa Sheet Metal Contractors Association, Inc.
(Illowa) is an organization of employers engaged in the
construction industry with an office located in Daven-
port, Iowa. Illowa exists in part for the purpose of repre-
senting its employer members in negotiating and adminis-
tering collective-bargaining agreements with various
labor organizations, including Respondent Local Union,
at various jobsites and facilities in Illinois and Iowa. Re-
spondents admit that Illowa, through its members, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. Respondents also admit
that Schebler is an employer engaged in commerce
within the meaning of the Act and that Schebler and
Winger Contracting Company (Winger) are employer
members of Illowa. Thus, the Respondents have admit-
ted that the Board has jurisdiction in this case.
' We find it unnecessary to pass on the judge's statements about the
construction industry proviso of Sec 8(e) because we agree with his find-
ing that the Respondents expressely disavowed reliance on the proviso
The General Counsel excepted to the judge's failure to include a visita-
tonal clause in his recommended remedy We have concluded that in the
circumstances of this case such a clause is not warranted Cherokee
Marine Terminal , 287 NLRB 1080 (1988)
Judith Poltz Esq., for the General Counsel.
Donald W. Fisher, Esq. and Judith Rivlin, Esq., of
Toledo, Ohio, for the Respondent.
Kathleen A. Reimer, Esq. (Black, Reimer & Goldman), of
Des Moines, Iowa, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge.
This case was tried on 18 and 19 December 1986 in
Rock Island, Illinois. The complaint alleges that Re-
spondent Local Union entered into and maintained an
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
For the last 25 years, Respondent Local Union has
been the lawfully designated exclusive collective-bargain-
ing representative for the following appropriate unit of
employees within the meaning of Section 9(b) of the Act:
All employees engaged in work described at Article
I of Standard Form of Union Agreement for Sheet
'The record does not reflect that the formal documents, G C Exh.
IA-IT, were received in evidence The record shows there was no objec-
tion to their admission and they are received in evidence I also grant the
General Counsel's unopposed motion to correct transcript
2 The constitution of the International provides that its general presi-
dent has "direction and supervision of all local unions and all of the
officers thereof, with full authority to suspend the charter of any local
union for failure of its officers or members to comply with the
policies of the International (sec 2, art 3) See also sec 10 of art 1 and
sec 2(e) of art 3 which also give the general president broad authority
over local unions
294 NLRB No. 61
SHEET METAL WORKERS LOCAL 91 (SCHEBLER CO)
Metal Roofing, Ventilating and Air Conditioning
Construction Industry, between Respondent Local
Union and Illowa for the period June 1, 1985
through May 31, 1987.
The work described is that undertaken by employees of
Illowa employers and is limited by the geographical ju-
risdiction of Respondent Local Union which extends to a
number of counties in the Tri-State area
Such recognition has been embodied in successive col-
lective-bargaining agreements between Illowa and Re-
spondent Local, the most recent of which is effective by
its terms from June 1, 1985, through May 31, 1987.
Shebler has recognized Respondent Local Union pursu-
ant to this agreement and its predecessors. Winger is not
technically a member of Illowa but it signs an agreement
with the Respondent Local in which it agrees to be
bound by the terms of the existing Illowa agreement
At its 1982 convention the Respondent International
adopted a policy, referred to as "Resolution 78," to assist
signatory employers who bid for jobs in competition
with nonunion employers, and "to insure survival of
union contractors." Under this policy, the International
urges local unions to grant signatory employers econom-
ic relief from the terms of existing agreements The
forms of relief include so-called "pin pointing," specialty
agreements, industrial addenda, and maintenance agree-
ments, all of which feature wage and benefit rates lower
than the standard area agreement
The record shows that signatory employers made re-
quests to Respondent local for various forms of econom-
ic relief from the terms of the standard area agreement.
Since January 1985, Respondent Local has acceded to
some of these requests and agreed to grant relief from
the standard area agreement many times. It is also clear
from the record that the Respondent Local has "com-
plete authority" to grant or refuse to grant Resolution 78
relief.
A signatory employer obtains Resolution 78 relief by
making a request of Respondent Local which then de-
cides whether to grant such relief in each case. For ex-
ample, when a signatory employer seeks to bid on a spe-
cific construction job with a nonunion competitor, the
employer may obtain "pinpoint" relief by requesting ad-
justments by the Respondent Local. The Respondent
Local then formulates a modified wage and benefit pack-
age on which the employer makes its bid and which
would apply if the bid was successful When such "pin-
point" relief is made available to one Illowa employer,
the Respondent Local notifies Illowa and makes the
same relief available to any other Illowa member who
requests it for the particular job in question.3
3 Signatory employers may also request relief under an "industrial ad-
dendum" where the contractor essentially manufactures items in a repeti-
tive manner Apparently, no Illowa employers have negotiated an "indus-
trial addendum," although Schebler attempted unsuccessfully to obtain
such relief Another type of relief is the "industrial maintenance adden-
dum" where an employer performs work within an industrial plant Some
signatory employers, including Johnson Sheet Metal Co , apparently re-
quested and obtained such relief from Respondent Local It is apparently
also possible for an employer to obtain relief by requesting participation
in the so-called national maintenance agreement Johnson Sheet Metal ob-
tained such relief covering maintenance work performed at some facilities
767
In March 1985, Respondent International, through its
general executive council, adopted a resolution aimed at
preventing signatory employers with dual-made oper-
ations, that is, operations with union and nonunion seg-
ments also referred to as double-breasted operations,
from taking advantage of the relief offered under Resolu-
tion 78. Thus, the International ruled that Resolution 78
relief would not be made available to employers unless
they agreed to the "Integrity Clause" set forth below.
The Integrity Clause reads as follows:
SECTION ONE: A "bad faith employer" for pur-
poses of this Agreement is an Employer that itself,
or through a person or persons subject to an
owner's control, has ownership interests (other than
a non-controlling interest in a corporation whose
stock is publicly traded) in any business entity that
engages in work within the scope of SFUA Article
I hereinabove using employees whose wage pack-
age, hours, and working conditions are inferior to
those prescribed in this Agreement or, if such busi-
ness entity is located or operating in another area,
inferior to those prescribed in the agreement of the
sister local union affiliated with Sheet Metal Work-
ers' International Association, AFL-CIO in that
area.
An Employer is also a "bad-faith employer"
when it is owned by another business entity as its
direct subsidiary or as a subsidiary of any other sub-
sidiary within the corporate structure thereof
through a parent-subsidiary and/or holding compa-
ny relationship, and any other business entity within
such corporate structure is engaging in work within
the scope of SFUA Article I hereinabove using em-
ployees whose wage package, hours, and working
conditions are inferior to those prescribed in this
Agreement or, if such other business entity is locat-
ed or operating in another area, inferior to those
prescribed in the agreement of the sister local union
affiliated with Sheet Metal Workers' International
Association, AFL-CIO in that area
Section Two: Any Employer that signs this
Agreement or is covered thereby by virtue of being
a member of a multi-employer bargaining unit ex-
pressly represents to the Union that it is not a "bad-
faith employer" as such term is defined in Section 1
hereinabove and, further, agrees to advise the union
promptly if at any time during the life of this
Agreement said Employer changes its mode of op-
eration and becomes a "bad-faith employer." Fail-
ure to give timely notice of being or becoming a
"bad-faith employer" shall be viewed as fraudulent
conduct on the part of such Employer.
In the event any Employer signatory to or bound
by this Agreement shall be guilty of fraudulent con-
duct as defined above, such Employer shall be
liable to the Union for liquidated damages at the
rate of $500 per calendar day from the date of fail-
of the Caterpillar Company Another form of relief is the so-called
"decking and siding" specialty agreement The Respondent Local has no
such agreements
768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ure to notify the Union until the date on which the
Employer gives notice to the Union. The claim for
liquidated damages shall be processed as a griev-
ance in accordance with, and within the time limits
prescribed by, the provisions of SFUA Article X.
SECTION THREE: Whenever the Union becomes
aware that an Employer has been or is a "bad-faith
employer," it shall be entitled, notwithstanding any
other provision of this Agreement, to demand that
the Agreement between it and such "bad-faith em-
ployer" be rescinded. A claim for recision shall be
processed by the Union as a contract grievance in
accordance with, and within the time limits pre-
scribed under, the provisions of SFUA Article X of
this Agreement.
With a cover letter dated 22 March 1985, the Interna-
tional's general president, Edward J. Carlough, and its
general secretary-treasurer, Cecil D. Clay, sent copies of
the general council resolution and the Integrity Clause to
the business managers of all the International's affiliated
local unions, including the officers of the Respondent
Local. The cover letter stated:
As a result of the Council's deliberations and action,
the policy of this International Association concern-
Ing "bad faith" contractors is that they must make a
decision that they are either 100% union or 100%
non-union . We will not attempt to play Mickey
Mouse games that have too often proved to be
futile to other unions in attempting to apply a union
contract to the non-union entity of the "bad faith"
contractor since this only delays the inevitable deci-
sion of labor and management. We have ap-
proached the problem with the scalpel of a surgeon
and where we find cancer, we will excise it.
The cover letter informed local unions that they
should attempt to have the Integrity Clause incorporated
into their collective-bargaining agreements. The letter
continued:
For those local unions that are not in negotiations
this year, we are instructing you to tell your con-
tractors' association to re-open its agreement and to
place this language into the agreement. If the asso-
ciation chooses not to re-open its agreement, as it
has the legal right to do, you are directed to notify
that association that you are no longer empowered
to grant any relief under Resolution 78, to any con-
tractor in that association.
In the event that local contractors' association
elects not to re-open its agreement for this purpose,
you are authorized to re-open agreements with any
independent who so chooses to do so, so' they may
be afforded the competitive relief granted by Reso-
lution 78 in your area. You shall give such relief
without any regard for "most favored nations"
clause that may appear in your local agreement.
During the spring of 1985, Respondent Local pro-
posed inclusion of the Integrity Clause in the negotia-
tions for a new agreement with Illowa. Illowa refused to
accept the Integrity Clause. The parties nevertheless
reached a new agreement . In separate negotiations the
Respondent Local was also unsuccessful in including the
clause in the Winger agreement. Thereafter, several em-
ployers, including Johnson Sheet Metal, accepted and
agreed to the Integrity Clause. Representatives of Re-
spondent Local made it clear that if the employers did
not agree to the Integrity Clause, Respondent Local
would not grant them economic relief under Resolution
78. As of the date of the hearing seven local contractors
had signed the Integrity Clause.
As indicated above, Winger initially refused to accept
the Integrity Clause. However, in February 1986, repre-
sentatives of Respondent Local informed Bernard
Winger, the president of Winger, that Respondent Local
would no longer grant Winger Resolution 78 relief, as it
had done in the past. Winger again refused to accept the
clause, but, after being denied several subsequent re-
quests for Resolution 78 relief, it relented, and, on 10
April 1986, signed the clause in order to continue receiv-
ing economic relief.
In the summer of 1985, Schebler was also asked, indi-
vidually, to accept the Integrity Clause as a condition for
the grant of economic relief. Schebler refused because,
according to its president, George Kertesz, Schebler
would have been in violation of the clause by virtue of
its affiliation with a nonunion contractor.
The record shows the following with respect to
Schebler's relationship with other employers in the con-
struction industry: 63 percent of Schebler's stock is
owned by a group of companies located in Minneapolis,
Minnesota , known as the Egan Companies. Jerry Egan is
president of the Egan Companies. He, but not Egan
Companies, has an ownership interest in a Phoenix, Ari-
zona enterprise called Egan-Ryan Mechanical Company,
a mechanical contracting firm engaged in sheet metal
construction. Egan-Ryan performs no work in Illinois or
Iowa. Neither Schebler, Egan Companies, nor Egan-
Ryan is publicly traded.
The sheet metal employees of Egan-Ryan are not cur-
rently represented by a union. On 11 February 1986,
Sheet Metal Workers International Association, Local
359, based in Phoenix, Arizona, filed an election petition
with the Board's Regional Office in Phoenix seeking rep-
resentation of the Egan-Ryan sheet metal workers. The
record does not reveal whether the election was held or
any other information on the election petition which is
designated as Case 28-RC-4315. Local 359 also unsuc-
cessfully sought to obtain coverage of Egan-Ryan under
the Minnesota-based labor agreement of a company
called Egan and Sons Air Conditioning Co. A district
court judge rejected the contention that Egan and Sons
was a single employer with or the alter ego of Egan-
Ryan. At the hearing in this case, Respondents' counsel
stated as follows: "We are not certainly in defense
making any contention that there is a[n] alter ego a single
Employer kind of relationship between Egan and Son
and Egan Ryan, or between Schebler Company."
It is clear that, except for several isolated incidents,
after some time in the summer of 1985, Respondent
Local no longer granted employer requests for Resolu-
SHEET METAL WORKERS LOCAL 91 (SCHEBLER CO)
tion 78 relief unless that employer also agreed to adopt
and sign the Integrity Clause. The Respondent Local
took this approach pursuant to directions from Respond-
ent International
Throughout the summer of 1985 and thereafter,
Schebler requested that Respondents grant it economic
relief from the terms of the Illowa agreement. Respond-
ents refused because Schebler would not sign the Integri-
ty Clause. In August 1985, Schebler wrote to Respond-
ent Local asking for a specialty agreement to secure new
work. There was no response to this letter. Also in
August 1985, Schebler wrote to the Respondent Interna-
tional to request participation in the national maintenance
agreement for work on which Schebler wanted to bid at
Alcoa's Davenport, Iowa plant. Bids were to be submit-
ted in the fall of 1985. Schebler received no response
until March 6, 1986, long after the bidding had closed.
In October 1985, Ray van Severen, an official of
Schebler, requested economic relief in order to bid on a
large job at a J. I. Case Company plant in Burlington,
Iowa. Ken Martinez , then assistant business manager of
Respondent Local, offered to reduce the journeyman-
preapprentice ratio for that job. When Van Severen
complained that the proposed relief was insufficient,
Martinez replied that he was "sticking his neck out" in
making the limited offer he did. On another occasion in
the fall of 1985, John Churuvia Sr., then business manag-
er for Respondent Local, visited George Kertesz at
Schebler office. Churuvia showed Kertesz the general
executive council resolution and the March 22, 1985 di-
rective which Respondent Local had received from Re-
spondent International . He explained that employers who
would not sign the Integrity Clause would be considered
bad-faith employers and would not receive any kind of
relief.
In January 1986, Churuvia told Kertesz that Schebler's
problems might soon be over because there was an effort
to organize Egan-Ryan. A short time later, International
Representative Don Braeken spoke at a meeting com-
posed of union and company officials at the union hall in
Rock Island. Braeken told the group that the Internation-
al would go to great lengths to make union employers
competitive with nonunion employers. After the general
meeting, Braeken met with officials of Respondent Local
and Schebler. Kertesz explained that Schebler had
always been a union contractor, that it had no direct af-
filiation with the Phoenix operation, and that it was very
interested in signing an industrial addendum . Braeken
said he would look into the situation and see what he
could do.
On a number of other occasions during 1986, including
several after May 1986, Churuvia and other officials of
Respondent Local told Van Severen that Schebler would
not receive economic relief unless it signed the Integrity
Clause.
In February 1986, Schebler bid on a job at the Pleas-
ant Valley High School in Pleasant Valley, Iowa.
Schebler formulated its bid on the basis of the wage and
benefit package of the Illowa contract. Johnson Sheet
Metal Works, which had signed the Integrity Clause,
also submitted a bid on the job. Respondent Local grant-
769
ed Johnson Resolution 78 relief reducing the wage and
benefit package cost and Johnson won the job
By letter dated 8 July 1986 Schebler filed a contrac-
tual grievance alleging that the grant of Resolution 78
relief to Johnson on the Pleasant Valley High School job
violated the "most favored nations clause" of the Illowa
labor agreement The so-called "most favored nations"
clause in the Illowa agreement reads as follows.
In the event the union enters into an agreement that
contains more favorable terms or conditions the as-
sociation will have the right to adopt said agree-
ment immediately.
On November 20, 1986, the grievance was denied by
the National Joint Adjustment Board. The decision of
the board states that there was no violation of the most-
favored nations clause and that "Schebler did not specifi-
cally request Resolution 78 assistance from either the
Union or Illowa SMACNA for the Pleasant Valley
School job."
By letter dated 24 October 1986 Van Severen com-
plained to Praet, with a copy to International Represent-
ative George Schmitt, that Respondents' policy of deny-
ing economic relief to Schebler had resulted in the loss
of over 2000 hours of shop fabrication work to nonunion
competition on a job that fall. Schmitt responded by
letter , dated 5 November 1986, stating that "once
Schebler Company guarantees Sheet Metal Workers ev-
erywhere they are a 100 percent union contractor, then
we will in return guarantee them our 100 percent coop-
eration in making them competitive on every nonunion
job they are bidding."
Schebler filed the initial charge in the instant case in
September 1986. Thereafter a complaint issued and the
General Counsel sought and was granted a temporary in-
junction under Section 10(1) of the Act by a United
States district court pending the resolution of this case
by the Board
In early December 1986, officials of Schebler and Re-
spondents arranged for meetings for the purpose of dis-
cussing Schebler 's request for an industrial addendum.
The parties met on 8 and 9 December 1986; Braeken,
Praet, and Kertesz were present at these meetings. The
parties agreed on the terms of an industrial addendum
which would also be available to other Illowa contrac-
tors bidding on the work. However, the addendum
would be available to Schebler only on the following
conditions : ( 1) Respondent International association and
its Phoenix local and the officials of Egan-Ryan reached
agreement on representation of the Egan-Ryan employ-
ees; and (2) Schebler withdrew the charges in the present
case.4
4 The testimonial evidence in this case was essentially uncontradicted
Praet, who was called as an adverse witness by the General Counsel, tes-
tified about the Respondent Local's policy with respect to Resolution 78
relief and the Integrity Clause Braeken, who was the only witness called
by Respondents, testified only about the December 1986 conditional
agreement He acknowledged the agreement , but insisted that agreement
on the Integrity Clause was not a condition for entering into the industri-
al addendum This is consistent with the testimony of Kertesz on the
matter
770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. Discussion and Analysis
As more fully detailed below, I find that the Integrity
Clause is unlawful under Section 8(e) and that, by agree-
ing with Winger to adopt the clause, Respondent Local
violated Section 8(e) I also find that Respondents did
not violate Section 8(b)(3) by refusing to grant Schebler
midterm contractual relief unless it also signed the Integ-
rity Clause but that they did violate Section 8(b)(4)(ii)(A)
by refusing to grant economic relief to Schebler while
granting such relief to employers who signed the Integri-
ty Clause because an object of such conduct was to force
Schebler to sign the Integrity Clause.
1. The 8(e) allegation
Section 8(e) makes it an unfair labor practice for a
union and an employer "to enter into any contract or
agreement, express or implied, whereby such employer
. . . agrees to . . . cease doing business with any other
person . . . ." A proviso privileges such agreements
with an "employer in the construction industry relating
to the contracting or subcontracting of work to be done
at the site of the construction, alteration, painting, or
repair of a building, structure or other work. .
Section 8(e) was intended to close certain loopholes in
the secondary boycott provisions of Section 8(b)(4) and
its language closely tracks that of Section 8(b)(4)(B). It
thus prohibits agreements which condone future second-
ary boycotts. As the Board has stated, perhaps "no lan-
guage can be explicit enough to reach in advance every
possible subterfuge of resourceful parties. Nevertheless
. . . in using the term `implied' in Section 8(e) Congress
meant to reach every device which, fairly considered, is
tantamount to an agreement that the contracting employ-
er will . . . cease doing business with another person."
Lithographers Local 78 (Miami Post), 130 NLRB 968, 976
(1961), enfd. as modified 301 F 2d 20 (5th Cir 1962)
Although Section 8(e) can be literally read to forbid
all agreements which prevent an employer from estab-
lishing a business relationship with another person or
cause it to terminate or alter an already existing relation-
ship, it has not been so construed. Thus, the Board has
approved clauses whose main purpose is to protect the
jobs customarily performed by unit employees. Because a
union has a legitimate primary interest in preserving unit
work for unit employees and in ensuring that negotiated
employment standards will not be undermined, a union
may negotiate work preservation and union-standard
clauses despite their incidental effect of limiting the
group of persons with whom the primary employer may
do business. Associated General Contractors, 280 NLRB
698 (1986).
However, contractual clauses whose main purpose is
to serve the institutional interest of the union to organize
or regulate the labor policies of employers with whom
the union does not have a collective-bargaining relation-
ship are unlawful under Section 8(e) because they are
secondary in character and not aimed at preserving unit
work or standards. Thus, the Board's inquiry is whether
the contract clause at issue has the "primary purpose of
protecting unit work or unit standards" or, instead, the
secondary purpose of promoting the broader goals of the
union "by asserting control over the labor relations" of
other employers. Ibid. See also Food & Commercial
Workers Local 1442 (Ralph's Grocery), 271 NLRB 697
(1984). As the Supreme Court has stated, the touchstone
of Section 8(e) is whether the agreement is addressed to
"the labor relations of the contracting employer vis-a-vis
his own employees" or whether it is "tactically calculat-
ed to satisfy union objectives elsewhere." National Wood-
work Manufacturers, 386 U.S 612, 644-645 (1967).
Applying the principles set forth above, I find that the
Integrity Clause is an agreement whose main purpose is
not the preservation or protection of unit work but
rather the satisfaction of union objectives elsewhere. It is
thus secondary in nature , attempting to influence the
labor relations of nonsignatory employers in work units
far removed from the contractual unit . Accordingly, I
find that when Respondent Local agreed with Winger-
and other employers-to adopt the Integrity Clause, it
violated Section 8(e) of the Act.
The Integrity Clause
The question of whether the Integrity Clause has a
work preservation purpose must be answered first by ref-
erence to the unit at issue. The contractual work unit in
this case is described in the Illowa agreement broadly en-
compassing sheet metal work including its manufacture,
maintenance , and fabrication-in the geographical juris-
diction of Respondent Local. Although Winger ordinari-
ly signs a separate agreement with Respondent Local, its
terms, including the unit description, are the same as
those of the Illowa agreement. Thus, the unit in this case
includes employees of Winger who operate within the
geographical jurisdiction of Respondent Local and per-
form the sheet metal work described in the Illowa agree-
ment.
The Integrity Clause is not limited to protecting bar-
gaining unit work There was no attempt to limit the
clause to work in the Winger or Illowa unit. Indeed, Re-
spondents do not even allege a work preservation de-
fense in this case. The Integrity Clause was crafted by
Respondent International and implemented by Respond-
ent Local to meet a perceived threat from nonunion con-
tractors nationwide. The simple solution to such a threat
from the perspective of a union would be to organize the
workers of the nonunion contractors. It appears, howev-
er, that Respondent wanted an easier method-a short
cut. They wanted to pressure their own union contrac-
tors to the extent that these contractors were affiliated
with nonunion entities. The difficulty here is that, unless
there is evidence that unit work is being protected,
unions may not pressure union employers to bring other
entities into the union fold.
The Integrity Clause requires that the signatory em-
ployer force related firms or affiliates5 to grant employ-
ees the wages, hours, and working conditions of union
agreements under penalty of having its own union agree-
ment rescinded. The plain words of the clause force a
5 I shall use the terms related firms and affiliates to refer to the firms
with whom the employer has an ownership interest, either directly or as
a parent or subsidiary, within the meaning of the Integrity Clause
SHEET METAL WORKERS LOCAL 91 (SCHEBLER CO)
cessation or alteration of business with the related firm.
It is well settled that the "cease doing business" language
of Sections 8(e) and 8(b)(4) does not require a total ces-
sation of business. An alteration of or in reference with
the business relationship is sufficient. See Longshoremen
ILA Local 1410 (Mobile Steamship), 235 NLRB 172, 179
(1978), and cases there cited. Here, the clause requires
the employer to use its influence to cause the related
firms to change their nonunion operation or their wage
and benefit package. Alternatively, the clause requires
the employer to change its own affiliation with the relat-
ed firm. The purpose and effect of the clause is thus to
alter the business relationship between the employer and
its related firms. And since the price for failing to
comply is loss of continued union representation, there
can be no doubt that the clause requires the employer to
engage in a secondary boycott. Using such methods for
an unlawful purpose is clearly coercive. See Ets-Hokin
Corp., 154 NLRB 839, 842 (1965), enfd. sub nom NLRB
v. Electrical Workers IBEW Local 769, 405 F.2d 159 (9th
Cir 1968), cert. denied 395 U.S. 921 (1969).
The "cease doing business" proscription of Section
8(e) also requires that the altered relationship between
"Persons." Thus, Respondents might have posited the ar-
gument-which they did not-that the relationship be-
tween the employers and related firms is that of a single
employer. In that case, the Respondents' concern argu-
ably might have been limited to bargaining unit work
which would have been primary rather than secondary.
However, it is incumbent on the party making such an
argument to establish that the related entities constitute a
single employer within the meaning of the Act See Car-
penters (Baxter Construction), 201 NLRB 23 (1973). The
factors which normally govern single employer status
are common management , centralized control of labor
relations, interrelation of operations and common owner-
ship. Radio Union Local 1264 v. Broadcast Service, 380
U.S 255, 256 (1965). However, ownership alone is not
determinative. Separate divisions of the same corporation
have been held to be separate "persons" within the
meaning of the secondary boycott provisions of the Act
See Newspaper Guild (Los Angeles Herald), 185 NLRB
303, 304 (1970), enfd. 443 F.2d 1173 (9th Cir. 1971).
Indeed, even where the two entities constitute a single
employer, there must still be an inquiry into whether
there is a single appropriate unit for bargaining purposes.
See South Prairie Construction Co. v. Operating Engineers
Local 627, 425 U S. 800, 803-804 (1976).
The Integrity Clause as written is not limited to influ-
encing the relationship between entities which come
within the single employer definition. It is written so
broadly that it permits an interference with business rela-
tionships with other "persons" who are not single em-
ployers. The Integrity Clause requires the signatory em-
ployer's affiliate to abide by the terms of a union agree-
ment if it does sheet metal work of the type set forth in
the standard agreement. But that affiliate need not meet
the requirements of common management, centralization
of labor relations, or interrelation of operations which
are part of the single employer doctrine. The Integrity
Clause requires only that the signatory employer have a
limited ownership interest in the affiliate which must
771
then apply union terms and conditions. Since the Integri-
ty Clause seeks to influence the labor relations of persons
or entities who are not part of the single employer that is
signatory to the clause, it reaches beyond the Illowa unit
or, more precisely, the Winger unit. Moreover, the
clause explicitly seeks union conditions in all sheet metal
workers' units wherever they are located. Thus, even
without regard to single employer status, the clause is
not limited to work in the Winger or even the Illowa
unit. There can be no doubt, in these circumstances, that
the object of the clause is not the preservation of Illowa
or Winger unit work but the attainment of objectives
elsewhere-with other employers or persons and in other
work units. This is the classic 8(e) clause condemned in
the Woodwork case.
Even if it could be determined that the Integrity
Clause was somehow ambiguous in meaning, the extrin-
sic evidence as to the purpose of the clause makes it
clear that it was intended to affect the labor relations of
other entities than Winger or other contracting parties.
See Operating Engineers Local 701 (Lease Co.), 276
NLRB 597, 600 (1985). Officials of Respondent Interna-
tional, which was responsible for drafting the clause,
stated that the purpose of the clause was to force con-
tracting employers to become "either 100% union or
100% non-union." The Integrity Clause makes it clear
that the "100%" included not only the contracting em-
ployers but all nonunion entities within a broadly
phrased corporate structure or within the ownership
control of a contracting employer or its owner. Accord-
ingly, there can be no doubt that the purpose of the In-
tegrity Clause was to promote union recognition in all
units operated by the contracting employer even if those
units could be legitimately defined as single employer
units and could constitute separate units of separate "per-
sons "
It is also open to argument-again one not advanced
by Respondents-that the clause simply protects union
standards, that is, if the related firms paid union wages it
would not be necessary for them to also sign union
agreements. Similar clauses are found to be lawful in
other contexts subcontracting, for example, because they
conceivably protect unit work However, the instant
clause refers specifically to the wages, hours, and condi-
tions of union agreements. Thus, it is clear that if the re-
lated firms comply with the wages, hours, and conditions
of a union agreement they are in fact adopting a union
agreement To the extent, however, that there is any
doubt as to what Respondents meant by this particular
language, that doubt is resolved by reference to Re-
spondents' explanation for the clause They wanted em-
ployers to be 100 percent union. Thus, even if the related
firms simply paid union wages and benefits the Respond-
ents would not be satisfied. They wanted union represen-
tation across the board. This is the equivalent of requir-
ing union signatory clauses which are of course unlaw-
ful. See Food & Commercial Workers Local 1442 (Ralph's
Grocery), 271 NLRB 697 (1984)
In sum, the clause itself as well as the explanatory ma-
terial supplied by Respondent International, and acted on
by Respondent Local, make it quite clear that Respond-
772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent Local did not seek to influence matters within the
bargaining unit when it secured Winger's agreement to
the Integrity Clause. The Respondents sought to prevent
Winger from ever affiliating with a firm which operated
nonunion . Thus, they sought not to regulate matters of
unit concern but to satisfy union objectives elsewhere-
in the separate employee units of such nonunion entities
wherever they might be located.
The Respondents argue that the Integrity Clause
simply requires signatories to supply "information on
which the union may base its decision whether to enter
into or continue to maintain a collective bargaining rela-
tionship." There is no doubt that unions are entitled to
certain information from employers with whom they
have bargaining relationships. The information must of
course have some relevance to the bargaining relation-
ship. Thus, a union would be entitled to information
from which it could determine that a single employer re-
lationship existed between the employer and another
entity or from which it could determine whether unit
work was being siphoned off to another completely un-
related entity. See, e .g., NLRB v. Leonard B. Hebert &
Co., 696 F.2d 1120, 1124 (5th Cir. 1983); Walter N. Yoder
& Sons, 270 NLRB 652 (1984); Hawkins Construction Co.,
285 NLRB 1313 (1987). Although section 2 of the Integ-
rity Clause-the information section-has rather strin-
gent penalties for noncompliance, standing alone, this
section would not establish a secondary object. But taken
together with the remainder of the clause, and in con-
junction with the contemporaneous explanation of the
clause, it is clear that the information section is merely
part of an overall effort to require the signatory employ-
er to change the operations of its related entities under
penalty of contract rescission. Contrary to Respondents'
suggestion , the contract rescission penalty is imposed not
for failing to supply information. That invokes different
and separate penalties . Rather, the contract rescission
penalty is imposed if the information supplied reveals a
disfavored double-breasted operation. Thus, the clause
does much more than simply ask for information. It seeks
to apply secondary pressure on signatory employers to
satisfy union objectives elsewhere.
The Construction Industry Proviso
Although Winger and perhaps other employers who
signed the Integrity Clause are in the construction indus-
try, Respondents explicitly disavow any contention that
the Integrity Clause is privileged under the construction
industry proviso of Section 8(e). (See Br. p. 30.) In this
posture of the case I must find that Respondents have
waived any defenses based on application of the con-
struction industry proviso.
Nevertheless, I shall make a fording that the Integrity
Clause is not within the proviso. The Board has consist-
ently "held to a narrow definition of jobsite work when
evaluating contractual provisions on a case by case
method." Teamsters Local 42 (Irvine-Santa Fe), 248
NLRB 808, 815 (1980). Thus, the proviso does not
extend to offsite work merely because it could be done at
the site. See Carpenters (Cardinal Industries), 136 NLRB
977, 988 (1962).
The record evidence is scant on this point. However,
it appears to me that the Integrity Clause does not relate
solely to the "contracting or subcontracting of work to
be done at the site of the construction, alteration, or
repair of a building, structure or other work" within the
meaning of the proviso. The Integrity Clause does not
specifically refer to contracting or subcontracting or
mention on-site construction work, unlike the valid sub-
contracting clause which appears elsewhere in the Illowa
agreement . That clause (art. II of the standard agree-
ment) would violate Section 8(e) but for its reference to
on-site construction work. Thus, the absence of any such
limitation in the Integrity Clause suggests that it is not so
limited. More importantly, when the Integrity Clause
does refer to work covered therein, it refers to article I
of the standard agreement which describes unit work.
Article I covers, but is "not limited to," a lengthy de-
scription of sheet metal work including its "manufacture
fabrication, assembling , handling, erection, maintenance
... repairing and servicing ." The description of covered
work goes well beyond what could reasonably be con-
sidered on-site construction work. Indeed, the record in-
dicates that some Illowa employers have the capacity to
and do perform maintenance and fabrication work in an
industrial setting. And Respondents have the authority to
and do enter into specialty, industrial, and maintenance
addenda which cover nonconstruction site work. Signifi-
cantly , Business Manager Praet testified that if a signato-
ry employer manufactures a great number of items cov-
ered under the standard agreement and does not secure
an industrial addendum, it must apply the wage rates of
the standard agreement. In these circumstances, I find
that the Integrity Clause does not satisfy the construction
industry proviso.6
2. The 8(b)(3) allegation
The General Counsel contends that Respondents vio-
lated Section 8(b)(3) by "making the Integrity Clause a
condition for reaching agreement on economic relief."
More precisely, the complaint alleges that Respondents
violated Section 8(b)(3) by demanding as a "condition of
6 In view of my finding that the Integrity Clause does not relate solely
to on-site construction work, I need not reach two other issues which
might have been presented here The first is whether , assuming that the
double-breasting prohibition of the Integrity Clause is limited to contract-
ing or subcontracting at a construction jobsite, it has been negotiated in
the context of a collective -bargaining relationship where the clause seeks
to regulate not only work in the Winger or Illowa unit but also work in
all other units where sheet metal work is performed To a certain extent
resolution of this issue turns on whether Congress intended to protect
such clauses when it enacted Sec 8 (e) See Woelke & Romero Framing v
NLRB, 456 U S 645 (1982), approving as within the proviso a subcon-
tracting clause negotiated in the context of a collective-bargaining rela-
tionship even when not limited in application to particular jobsites at
which both union and nonunion workers are employed The second issue
is whether, even assuming the clause were privileged by the proviso, its
enforcement mechanism is coercive See Plumbers Local 16 (Jamco Devel-
opment), 277 NLRB 1281 (1985) (contract rescission is unlawful self-help
to enforce an 8(e) clause that would otherwise be lawful under the con-
struction industry proviso), Los Angeles Building Trades Council (Donald
Shriver), 239 NLRB 264, 270 (1978), enfd , 635 F 2d 859' (D C Cir' 1980)
(contract procedures unlawfully permitted strikes in support of otherwise
valid clause) I will leave resolution of these issues to another day with
respect to another clause.
SHEET METAL WORKERS LOCAL 91 (SCHEBLER CO)
any supplemental agreement with Schebler that Schebler
agree to be bound by the Integrity Clause" and by "re-
fusing to bargain over Schebler's request for a supple-
mental agreement." The General Counsel asserts that a
union violates Section 8(b)(3) by insisting to impasse that
an employer sign a contractual clause which is prohibit-
ed by Section 8(e) and, in support of the assertion, cites
two cases, Operating Engineers (York County Bridge), 216
NLRB 408 (1975), enfd. 532 F 2d 902 (3d Cir. 1976),
cert. denied 429 U.S. 1072 (1977), and Bricklayers Local 5
(Muskegon Contractors), 152 NLRB 360 (1965), enfd. as
modified 378 F 2d 859 (6th Cir. 1967).
Neither the principle nor the cases advanced by the
General Counsel are applicable to the situation here. In
York and Muskegon, the unions engaged in strikes and
picketing to force adherence, to the unlawful clause
during negotiations for a new agreement. They thus in-
sisted on agreement to the unlawful clause as the price
for any agreement. In this context, the Board, York and
Muskegon, found that the unions had bargained in bad
faith It is, of course, well settled that a party violates its
bargaining obligation by refusing to enter into any agree-
ment unless the other party agrees to a nonmandatory
subject of bargaining. See Borg-Warner Corp., 356 U.S.
342, 349 (1958); NLRB Y. Sheet Metal Workers Local 38,
575 F 2d 394, 397-398 (2d Cir. 1978).
In contrast, the instant case does not involve strikes or
picketing. Nor did Respondents refuse to enter any
agreement with Schebler as the price for the Integrity
Clause which all parties concede was not a mandatory
subject of bargaining. The parties were not bargaining
for a new agreement; they already had an existing agree-
ment Indeed, Respondents were simply responding to
Schebler's request for relief during the midterm of an ex-
isting agreement There was thus no general bargaining
obligation on the part of Respondents. See Section 8(d)
of the Act and Connecticut Light & Power Co., 271
NLRB 766 (1984). Nor were the parties proceeding
under the terms of a valid reopener clause. See La Porte
Transit Co., 286 NLRB 132 (1987).
In this respect I agree with the Respondents that Con-
necticut Light & Power, supra, appears to support their
position. In that case, the Board held that employers
who offered a midterm modification of a contract with
no reopener clause were not obligated to bargain simply
because they made such an offer. The employers offered
to increase shift premium pay for unit employees if the
union agreed; the union asked to bargain but the employ-
ers refused and withdrew their offer. The union alleged a
refusal to bargain, but the Board disagreed, holding that
Because the employers "had no obligation to make the
offer, and making the offer was not unlawful, they could
not incur an additional bargaining obligation by tender-
ing it . Consequently , their refusal to bargain about the
offer did not violate the Act." Id at 767.
I can see no legal distinction between the principle
enunciated in the Connecticut Light & Power case and
that applicable here. Indeed, this case appears to be a
stronger one for dismissal because Respondents were not
the initiating parties. Schebler sought to alter the existing
multiemployer contract. Respondents had no obligation
to agree to such midterm alteration they simply said that
773
they would agree if Schebler agreed to the Integrity
Clause. A union does not necessarily violate the Act by
simply proposing or bargaining about a clause violative
of Section 8(e) Bargaining might well lead to a more
narrowly drawn clause that either has no secondary pur-
pose or comes within the construction industry proviso.
And the employer may reject the clause outright. For
example, when Respondent Local proposed the Integrity
Clause during the most recent regular Illowa negotia-
tions, Illowa rejected the proposal and the parties never-
theless reached a new agreement. In any event, Because
the Respondents had no obligation either to bargain or to
accede to Schebler's request for midterm modification of
the contract, there could be no bargaining to impasse of
the type which was condemned in York and Muskegon.
The General Counsel seeks to distinguish Connecticut
Light & Power on the ground that the most-favored-na-
tions clause in the Illowa agreement operated as a re-
opener. It is true that the Illowa agreement has a most-
favored-nations clause which states that, "in the event
the union enters into an agreement that contains more fa-
vorable terms or conditions the association will have the
right to adopt said agreement immediately." However,
that use does not operate as a reopener. Reopeners are
covered under addendum number 23 which states as fol-
lows:
MUTUAL REOPENING OF CONTRACT
No. 23. The only means of reopening the con-
tract during its tenure shall be as follows:
1. In the event the Sheet Metal Workers Interna-
tional Association and the Sheet Metal and Air
Conditioning National Contractors Association
enter into any agreement on the national level, that
this contract shall be considered automatically open
to discuss this item only. If parties cannot agree on
a change, the contract will nevertheless continue in
accordance with its terms.
2. Whenever there is a mutual agreement on the
part of the Employers and the Union, the contract
shall be considered open for discussion on a specific
item or items only If parties cannot agree on a
change, the contract will nevertheless continue in
accordance with its terms.
The reopener clause is thus narrowly drawn and does
not require the Respondents to reopen the contract for
any particular member of the employer association.
In her brief, the General Counsel also asserts that "Re-
spondent's unilateral change of past practice and repudi-
ation of its obligation under the most favored nations
clause, without bargaining and without agreement of the
employer violated Section 8(b)(3). The General Counsel
seems to be asserting two separate theories of violation,
neither of which was specifically alleged in the Com-
plaint.
The first argument-which is also asserted as a basis
for distinguishing Connecticut Light & Power-seems to
be that Respondents unilaterally changed their past prac-
tice of granting relief to all signator employers under
Resolution 78. To the extent that this argument implies
774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that such past practice has become a term and condition
of employment that argument is without merit. Resolu-
tion 78 was not embodied in any collective-bargaining
agreement. Moreover, contrary to General Counsel's
suggestion, Resolution 78 relief was never granted in all
cases as a matter of right. That relief was tailored to spe-
cific circumstances and it is clear that Respondents had
the absolute authority to grant or reject such relief on re-
quest. Thus, Respondents' past practice cannot be analo-
gized to an employer's nondiscretionary grant of bene-
fits. Compare NLRB v. Katz, 369 U.S. 736, 743 (1962),
and Eastern Maine Medical Center v. NLRB, 658 F.2d 1,
8-9 (1st Cir. 1981).
The General Counsel's unilateral change argument also
appears to be an effort to change the theory of violation
set forth in the complaint. If the alleged violation is now
the Respondents' change in policy from granting eco-
nomic relief in all cases to granting it only if employers
signed the Integrity Clause that theory should have been
specifically alleged. It was not and the issue was not
fully litigated. Because this theory was not specifically
alleged, the Respondents were unable to raise what argu-
ably might be a significant defense. If the gravamen of
the violation were the change in policy, the 10(b) statute
of limitations would run from the date of the change. At
the very latest, the affected employers, including
Schebler, knew of this change in policy in the summer of
1985. Yet the charge in this case was not filed until the
fall of 1986. Thus, I do not believe it would be fair to
consider the General Counsel's change of policy theory.
See Consolidation Coal Co., 277 NLRB 545 (1985).
In any event, even on the merits, the General Coun-
sel's new theory is of questionable validity. As I have
stated, the past practice which Respondents allegedly
changed unilaterally was not a contract term. Thus,
there could be no violation of Section 8(b)(3) on this
basis. Compare Painters Local 9 v. NLRB, 453 F.2d 783,
787 (2d Cir. 1971).
The General Counsel's second argument seems to be
that Respondents violated the most-favored-nations
clause of the Illowa contract. This too was not specifi-
cally alleged in the complaint. Nor was the matter fully
litigated. Respondents thus were unable to submit evi-
dence specifically addressed to the theory that they vio-
lated the most-favored-nations clause. Indeed, there is
little, if any, evidence in this case as to the meaning of
the clause. The only evidence of a grievance under this
clause is that of Schebler's grievance alleging that Re-
spondents' grant of economic relief to Johnson violated
the most-favored-nations clause. That grievance was re-
jected by a joint employer-union body with unreviewa-
ble and final authority to resolve grievances under the
contract. The decision states that there was no violation
of the most-favored-nations clause. Presumably, this sug-
gests that before, a violation occurs a specific request
must be made to both the Union and Illowa. In any
event, the Board's deferral policy would arguably limit
Schebler's attempt to have the Board resolve the same
dispute in an unfair labor practice context. See Olin
Corp., 268 NLRB 573 (1984). However, in the absence of
timely notification of the General Counsel's new theory,
Respondents were unable to posit this defense. Accord-
ingly, I must reject the General Counsel's belated effort
to expand the complaint to include a contract violation
theory.
In any event, I am not convinced that Respondents
violated Section 8(b)(3) by breaching the the most-fa-
vored-nations clause in the Illowa agreement. That
clause does not appear to create an obligation on the part
of Respondent to grant midterm contractual relief. Nor
does it say, in so many words, that a union cannot offer
more favorable terms to some employers and not others.
At most it creates a right in the multiemployer associa-
tion-not necessarily the individual members-to adopt
the more favorable terms in any agreement Respondent
Local might enter into. If, indeed, the association or
Schebler have a right to "adopt said agreement immedi-
ately," they are free to assert that right, as Schebler tried
unsuccessfully to do, by enforcing the contract. As I
have indicated, there is really no significant record evi-
dence concerning the meaning of the most-favored-na-
tions clause. The record contains evidence that Respond-
ent Local notified Illowa when "pinpoint'%, relief made
available to an Illowa employer and that such relief was
also made available to other members who requested it
for the same job. It is not clear, however, that this was
done pursuant to the most-favored-nations clause. The
decision on the Schebler grievance, however, strongly
suggests that there was no violation here. Moreover, the
executive secretary of Illowa testified that Respondents
had complete authority to grant or deny midterm con-
tractual relief. Not every alleged violation of a contract
constitutes an unlawful refusal to bargain, and, since the
evidence on the issue in this case is inconclusive at best,
a finding that Respondents violated Section 8(b)(3)
breaching the most-favored-nations clause would be un-
warranted. See NCR Corp., 271 NLRB 1212, 1213
(1984).'
In her opening brief the General Counsel specifically
seeks to amend the complaint to allege that Respondents
violated Section 8(b)(3) by conditioning the grant of an
industrial addendum to Schebler upon Schebler's with-
drawal of the charges in this case. Under Section 102.17
of the Board's Rules and Regulations, complaint amend-
ments may be permitted "upon such terms as may be
deemed just." See Green Construction, 271 NLRB 1503
(1984) (posthearing motion to amend); Seward Interna-
tional, 270 NLRB 1034 (1984) (motion to amend late in
the hearing). I do not believe that, in the circumstances
of this case, a posthearing amendment would be "just."
First of all, the evidence shows that the parties met
after the initial charge was filed and a complaint had
issued. At this meeting the parties worked out an ar-
rangement which provided for the grant of an industrial
addendum to Schebler, provided further that Egan-Ryan
would recognize the Phoenix local and that charges in
7 In view of the evidence discussed above with respect to Respondents'
complete authority to grant or reject requests for midterm contractual
relief and the questionable applicability of the most-favored-nations
clause, I also find that the General Counsel has not shown that Respond-
ents clearly and unmistakeably waived their contractual and statutory
rights not to grant midcontractual relief to Schebler See Metropolitan
Edison Co. Y NLRB, 460 U S 693, 707-708 (1983), LaPorte Transit Co,
286 NLRB 132 (1987)
SHEET METAL WORKERS LOCAL 91 (SCHEBLER CO) 775
the instant case would be withdrawn. All witnesses
agreed that the arrangement was not contingent on
Schebler signing the Integrity Clause It seems obvious
to me that the parties were undertaking settlement dis-
cussions at the time. The Egan-Ryan dispute was the
subject of proceedings at the Board's Regional Office in
Phoenix and in court; Schebler had filed a charge and
the General Counsel had issued a complaint in the instant
case Thus, evidence concerning the proposed withdraw-
al of charges would ordinarily not be admissible for ob-
vious policy reasons. Fed. R. Evid. 408; and see Contee
Sand & Gravel Co., 274 NLRB 574 fn. 1 (1985); Central
Storage & Transfer Co., 263 NLRB 806 fn 2 (1982) Re-
spondents did not object to the testimony on this ground,
no doubt because they were unaware of the fact that it
would be alleged to constitute a separate violation of the
Act. Nor did they have the opportunity to explain
through witnesses the full context of the proposed with-
drawal of charges Respondents' only witness in this case
testified essentially that the meeting did not specifically
deal with the Integrity Clause which at the time was the
focus of the complaint. The turn the focus of this case
instead on the proposed withdrawal of charges would
address a matter which was not closely related to the
issues alleged in the complaint. See Carpenters Local 720
(Stone & Webster), 274 NLRB 1506 (1985). In these cir-
cumstances, I do not believe it would be "just" to permit
an amendment to the complaint at this stage of the pro-
ceedings.
Even assuming, however, that the amendment were
permitted, I am not convinced that the Respondents'
conduct was violative of Section 8(b)(3). As I have indi-
cated, the meeting dealt with at least three pending mat-
ters of litigation. In addition, Schebler had just been noti-
fied that its grievance over the Pleasant Valley School
job had been denied. The grant of the industrial adden-
dum was thus so interwoven with settlement discussions
that I cannot find that Respondents bargained in bad
faith by asking for withdrawal of the charges. There was
an existing agreement with Schebler-at least with
Illowa, and there was no obligation under Section 8(d)
or the Illowa agreement to grant midterm contractual
relief. At most, Respondents "in contemplation of agree-
ment . . sought a broader agreement which would re-
solve all matters in dispute-a tack not unusual in con-
cluding labor management disputes." Inner City Broad-
casting Corp., 270 NLRB 1230, 1233 (1984).8
3. The 8(b)(4)(ii)(A) allegation
The General Counsel asserts that Respondent violated
Section 8(b)(4)(ii)(A) by conditioning the grant of eco-
nomic relief on Schebler's signing the Integrity Clause.
That section makes it an unfair labor practice for a
union:
9 Schebler argues still another theory, namely that Respondents violat-
ed See 8(b)(3) by engaging in individual bargaining with members of a
multiemployei association contrary to their obligation to bargain on a
multiemployer basis This theory is not in the complaint and the issue
was not fully litigated More importantly, the charging party may not
alter or amend a Complaint on its own initiative Thus, I cannot consider
this theory of violation See Suburban Transit Corp, 276 NLRB 15, 26
(1985)
To threaten, coerce, or restrain any person engaged
in commerce . . . where . . . an object thereof is
... forcing or requiring an employer to enter into
an agreement which is prohibited by section 8(e).
The term "coercion" under this Section of the Act has
been defined as encompassing "non-judicial acts of a
compelling or restraining nature, applied by way of con-
certed self-help consisting of a strike, picketing, or other
economic retaliation or pressure in a background of a
labor dispute." Sheet Metal Workers Local 418, 235
NLRB 144, 146 (1978), quoting from Ets-Hotkin, supra,
154 NLRB at 842. Economic retaliation has included
such conduct as refusing to execute a collective-bargain-
ing agreement or to refer workers. Local 418, supra.
Resort to the courts, however, although a "somewhat
coercive act," does not ordinarily "constitute the sort of
coercion that Congress intended to make unlawful." Car-
rier Air Conditioning v. NLRB, 547 F 2d 1178, 1191 (2d
Cir. 1976). Thus, court enforcement of an unlawful 8(e)
clause "should not be considered § 8(b)(4)(ii) coercion."
Id. at fn 15. However, the imposition of monetary fines
or penalties-even under a collective-bargaining agree-
ment-may constitute coercion. Id. at 1192-1193 See
also Operating Engineers Local 12 (Acco Construction), 204
NLRB 742, 756-757 (1973), enfd. 511 F.2d 848, 852 (9th
Cir. 1975).9
The General Counsel equates Respondents' conduct
here with the monetary penalty cases. Thus, she argues
that, by granting economic relief to some employers and
denying it to Schebler, Respondents engaged in "eco-
nomic retaliation or pressure" which amounted to "coer-
cion" under Section 8(b)(4)(ii). I agree.10
The General Counsel relies on Carpenters Local 742 (J.
L. Simmons Co.), 237 NLRB 564 (1978), in which the
union suggested that, in lieu of a work stoppage, it
would accept premium pay as a condition for installing
premachined doors on a construction project, conduct
which was found to have a secondary object In that
case, the Board stated as follows:
Consideration of the Union's subsequent premium
pay proposal does not cause us to reach a different
result. In the first place, there is no evidence that
the Union at any time abandoned its objective of
keeping precut doors off the construction project
by pressuring Simmons in the expectation that it
could thereby force the Hospital Association to
change its manner of doing business or force Sim-
mons to terminate its contract with the Association
Further, the proposal itself is coercive in that it
either penalizes Simmons for continuing to do busi-
I In some circumstances the filing or contractual enforcement of a
grievance may constitute coercion See Teamsters Local 705 (Emery Air
Freight), 278 NLRB 1303 (1986), Longshoremen ILWU Local 32 (Weyer-
haeuser Co), 271 NLRB 759 (1984), enfd 773 F 2d 1012, 1018-1019 (9th
Cir 1985) The issue of whether handbilling may constitute coercion is
presently pending in the Supreme Court DeBartolo Corp v Florida Gulf
Coast Building Trades Council, 108 S Ct 1392 (1988)
10 Respondents offered no defense to the 8(b)(4)(u)(A ) allegation in
their brief other than to allege that the Integrity Clause was not violative
of Sec 8(e)
776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ness with the Hospital Association in accordance
with their agreement, by having to absorb premium
pay costs, or forces Simmons to seek contract re-
negotiation, with. its inherently coercive impact, in
order to avoid such additional costs. We therefore
view the premium pay proposal as no more than a
substitution of one form of economic pressure for
another, undertaken with at least one objective
which remains constant; namely, to influence the
Hospital Association by inducing Simmons to cease
doing business with it.
compatible with Connecticut Light & Power in view of
Respondents' right not to grant midterm contractual
relief. I I
There is of course no doubt that an object of Respond-
ents' conduct was to force Schebler to sign the Integrity
Clause. Accordingly, I find that, by denying economic
relief to Schebler unless it agreed to the Integrity Clause
while granting such relief to other employers who signed
the Clause Respondents engaged in coercion to force
Schebler to sign an unlawful 8(e) clause in violation of
Section 8(b)(4)(ii)(A).
Id. at 565. See also Painters Local 829 (Theatre Tech-
niques), 267 NLRB 858, 863 (1983), enf. denied on other
grounds 762 F.2d 1027 (D.C. Cir. 1985).
In the instant case, Respondents grant of economic
relief to some employers and not to Schebler based on
agreement to the Integrity Clause was coercive. Thus,
Respondents exacted the equivalent of a monetary penal-
ty from Schebler when they denied Schebler the same
discount on wages and benefits that they granted other
employers who had signed the Integrity Clause. Schebler
was faced with a dilemma : if it signed the Integrity
Clause it ran the risk of having Respondents cancel the
existing agreement, an obviously coercive act, and of
violating Section 8(e); if it declined, as it did, it faced the
loss of business to competitors who had been granted
economic relief by Respondents. That economic loss was
real, as the evidence here clearly shows. I therefore find
that Respondents' conduct in refusing to grant economic
relief to Schebler while granting it to other employers
who had signed the Integrity Clause constituted "coer-
cion" within the meaning of Section 8(b)(4)(ii).
I recognize that Respondents were not obligated under
Section 8(d) to grant midterm contractual relief to
Schebler and that Respondents did not violate Section
8(b)(3) of the Act by refusing to grant such relief. But
this does not insulate Respondents from a finding that
their conduct was coercive within the meaning of the
Act. The gravamen of the violation of Section 8(b)(4)(ii)
is the different treatment of Schebler not the denial of
relief per se. Respondents had no obligation to grant
midterm contractual relief, but when they did so based
on whether an employer signed the Integrity Clause,
they risked coercing those, like Schebler, who decided
not to join them in violating Section 8(e). Thus, I do not
believe that my finding of coercion under Section
8(b)(4)(ii) is inconsistent with my finding that Respond-
ents did not violate Section 8(b)(3). Had Respondents
struck or picketed in order to force Schebler to sign the
Integrity Clause, there would be no doubt that the con-
duct would be found to be coercive. Likewise such coer-
cion would have gone a long way toward a finding that
insisting on an 8(e) clause in negotiations for a new
agreement was violative of Section 8(b)(3). See York and
Muskegon, supra. However, the finding of coercion in
this case does not require a finding that Respondents vio-
lated Section 8(b)(3). Coercion is not necessarily an ele-
ment in an 8(b)(3) or an 8(a)(5) violation. The Board has
not specifically ruled that all acts of coercion in attempt-
ing to obtain 8(e) clauses constitute per se violations of
Section 8(b)(3). Nor would such a fording in this case be
CONCLUSIONS OF LAW
1. By entering into and maintaining in effect an agree-
ment with Winger which contained the Integrity Clause,
Respondent Local Union has violated Section 8(e) of the
Act.
2. By denying economic relief to Schebler unless it
agreed to the Integrity Clause while granting such relief
to other employers who did sign the Integrity Clause,
Respondent Local Union and Respondent International
coerced Schebler to sign the Integrity Clause in violation
of Section 8(b)(4)(ii)(A).
3. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4. Respondents have not, as alleged in the complaint,
violated Section 8(b)(3) of the Act by denying Schebler
midterm contractual relief unless Schebler signed the In-
tegrity Clause.
REMEDY
Having found that Respondents engaged in certain
unfair labor practices, I shall recommend the issuance of
an order directing them to cease and desist therefrom
and to take certain affirmative action designed to effectu-
ate the policies of the Act. Because the simple posting of
a notice may not adequately inform employers or affili-
ated local unions that the Integrity Clause is unlawful
under Section 8(e) and that Respondents may not use co-
ercion in order to force employers to agree to the Integ-
rity Clause, I shall also recommend that Respondent
Local be ordered to mail a copy of its notice to all signa-
tory employers within its jurisdiction and that Respond-
ent International be ordered to mail a copy of its notice
to all employers who may be signatory to agreements di-
rectly with it and, in view of the control the Internation-
al has over local unions, to all local unions affiliated with
it. The mailing requirement for Respondent International
I I The General Counsel asserts that both Respondent International and
Respondent Local have violated Sec 8(b)(4)(i)(A) I agree. The evidence
in this case clearly shows that Respondent International directed and par-
ticipated in the unlawful coercion of Schebler Officials of Respondent
Local acted pursuant to the directions of Respondent International when
they dealt with officials of Schebler Moreover, officials of Respondent
International spoke directly with officials of Schebler in implementing na-
tional policy with respect to the Integrity Clause Finally, the constitu-
tion of the International gives it broad authority over its local unions In
these circumstances, it is clear that Respondent International and Re-
spondent Local are both liable for the violation See Combustion Eng:-
neenng, 272 NLRB 957, 968-969 (1984), Cargo Handlers Inc., 159 NLRB
321, 322-327 (1966), Longshoremen ILA Local 1414 (Occidental Chemical),
261 NLRB 1 (1982)
SHEET METAL WORKERS LOCAL 91 (SCHEBLER CO)
is particularly important because the International has
heavily publicized and recommended the Integrity
Clause to all of its local unions.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edi2
ORDER
A. The Respondent Sheet Metal Workers Local Union
No. 91, affiliated with Sheet Metal Workers International
Association, AFL-CIO, its officers, agents, and repre-
sentatives, shall
1. Cease and desist from
(a) Entering into, maintaining , giving effect to or en-
forcing the Integrity Clause in the collective-bargaining
agreement it has with Winger Contracting Co. or from
entering into, maintaining, giving effect to or enforcing
any other contract or agreement, express or implied,
whereby Winger or any other employer agrees to cease
or refrain from doing business with any other person in
violation of Section 8(e) of the Act.
(b) Coercing Schebler Company or any other employ-
er by denying them economic relief under Resolution 78
unless they agree to the Integrity Clause while granting
such relief to other employers who sign the Integrity
Clause where an object of such coercion is to force
Schebler or any other employer to agree to the Integrity
Clause in violation of Section 8(b)(4)(ii)(A).
(c) Violating, in any like or related manner, Section
8(e) or Section 8(b)(4)(ii) of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its business offices and meeting halls copies
of the attached notice marked "Appendix A."13 Copies
of said notice, on forms provided by the Regional Direc-
tor for Region 33, after being signed by Respondent
Local's authorized representative, shall be posted by Re-
spondent Local immediately upon receipt and maintained
for 60 consecutive days thereafter, in conspicuous places
including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent Local Union to ensure that said notices are not
altered, defaced, or covered by any other material
(b) Sign and mail a copy of the notice to all employers
with whom it has a collective-bargaining relationship
(c) Notify the Regional Director for Region 33 in
writing within 28 days from the date of this Order what
steps Respondent Local Union has taken to comply.
B The Respondent, Sheet Metal Workers Internation-
al Union, AFL-CIO, its officers, agents, and representa-
tives, shall
1. Cease and desist from
12 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
to If 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
777
(a) Coercing Schebler Company or any other employ-
er by denying them economic relief under Resolution 78
unless they agree to the Integrity Clause while granting
such relief to employers who sign the Integrity Clause
where an object of such coercion is to force Schebler or
any other employer to agree to the Integrity Clause in
violation of Section 8(b)(4)(ii)(A).
(b) Violating, in any like or related manner, Section
8(b)(4)(ii)(A) of the Act.
2. Take the following affirmative action necessary ef-
fectuate the policies of the Act.
(a) Post at its business offices and meeting halls copies
of the attached notice marked "Appendix B."14 Copies
of the notice, on forms provided by the Regional Direc-
tor for Region 33, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material
(b) Sign and mail a copy of the notice to all employers
with whom it has collective-bargaining relationship and
to all its affiliated local unions.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that all allegations of
unfair labor practice in the complaint, except for the
unfair labor practices found herein, be dismissed.
i4 See fn 13 supra
APPENDIX A
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
The Integrity Clause has been found unlawful under
Section 8(e) of the Act.
WE WILL NOT enter into, maintain , give effect to, or
enforce the Integrity Clause of our collective-bargaining
agreement with Winger Contracting Co.
WE WILL NOT enter into, maintain or give effect to
any other contract or agreement, expressed or implied,
whereby Winger Contracting Co. or any other employer
agrees to cease or refrain from doing business with any
other person in violation of Section 8(e) of the National
Labor Relations Act, as amended.
WE WILL NOT coerce Schebler Company or any other
employer by denying them economic relief under Reso-
lution 78 unless they sign the Integrity Clause while
granting such relief to employers who sign the Integrity
Clause where an object of such coercion is to force
778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Schesler or any other employer to sign the Integrity
Clause.
WE WILL NOT in any like or related manner violate
Section 8(e) or Section 8(b)(4)(ii )(A) of the Act.
SHEET METAL WORKERS LOCAL UNION No. 91
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
The Integrity Clause has been found unlawful under
Section 8(e) of the Act.
WE WILL NOT coerce Schebler Company or any other
employer by denying them economic relief under Reso-
lution 78 unless they sign the Integrity Clause while
granting such relief to employers who sign the Integrity
Clause where an object of such coercion is to force
Schebler or any other employer to sign the Integrity
Clause.
WE WILL NOT in any like or related manner violate
Section 8 (b)(4)(ii)(A) of the Act.
SHEET METAL WORKERS INTERNATIONAL
ASSOCIATION , AFL-CIO