Southern Calif. Pipe Trades Dist. Council 16

National Labor Relations Board - Board Decisions

Dec 4, 1973

207 N.L.R.B. 698 (N.L.R.B. 1973)

698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southern California Pipe Trades District Council No.
16 of the United Association : and United Associa-
tion of Journeymen and Apprentices of the Plumb-
ing and Pipefitting Industry of the United States
and Canada, Local No. 494 and Associated General
Contractors of California, Inc.
Southern California Pipe Trades District Council No..
16 of the United Association : and United Associa-
tion of Journeymen and Apprentices of the
Plumping and Pipefitting Industry of the United
States and Canada , Local No. 494 and Associated
General Contractors of California , Inc. and Plumb-
ing-Heating and Piping Employers Council of
Southern California, Inc., Party to the Contract.
Cases 21-CC-1377 and 21-CE-113
December 4, 1973
DECISION AND ORDER
On January 2, 1973, Administrative Law Judge
James T. Rasbury issued the attached Decision in
this proceeding. Thereafter, the General Counsel, the
Respondents, and the Charging Party filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 but only to the
extent consistent with our Decision here.
The complaint alleges and the Administrative Law
Judge found that the Respondents violated Section
8(b)(4)(ii)(B) and Section 8(e) of the Act. We believe
that the particular facts of the case require the
contrary result.
National Medical Enterprises, Inc., was the owner-
builder of a hospital in the Lakewood, California,
area. It engaged Stolte, Inc., a member of the
Charging Party association, as the general contractor
for construction of the hospital. The contract with
Stolte provided, inter alia, that certain prepiped
stainless steel, surgical scrub sinks, purchased and
owned by National, be installed. These sinks were
manufactured by Market Forge, at an east coast
location, where its employees were represented by
Steelworkers Union. Stolte subcontracted all plumb-
ing construction work, which included the scrub sink
installation, to Robert J. Ohland, Inc. Ohland was a
member of the Southern California plumbers associ-
ation which had at times here material a bargaining
1 The P.I.P.E. Specification Guide is a publication prepared by the
Technical Division of the Plumbing Industry Progress & Education Fund
agreement with Respondent Plumbers District Coun-
cil 16 of which Respondent Local 494 is a member.
The issues in this case concern the installation by
Ohland of the prepiped scrub sinks at the hospital
and the application to Ohland with respect to such
installation of certain paragraphs of the Plumbing
Association-Plumbing Council contract.
Paragraphs 13, 82, and 86 only of that contract are
applicable here and provide in relevant part as
follows:
(1) Paragraph 13 states that the Employer agrees
that all work covered in the P.I.P.E.t Specification
Guide shall be performed by the Employer under the
terms and conditions of the agreement and that in
case any fabrication or installation work has been, is
being, or will be performed by anyone other than
employees working for Employers under the provi-
sions of the agreement then the Employer "agrees to
pay the equivalent of wages and fringe benefits lost
by employees covered by this agreement" as deter-
mined by a joint management-labor board set up by
the agreement into the Union's pension fund;
(2) Paragraph 82 reads that "all pipe fabricated for
specialty units . . . shall be fabricated and installed
under terms of the agreement" and, finally,
(3) Paragraph 86, an enforcement type provision,
provides that if a union discovers work being done in
violation of the agreement a written complaint shall
be filed with the Joint Arbitration Board which shall
then notify the employer of the complaint and
instruct him to stop the work in question; the Joint
Board shall then investigate and either notify the
employer there is no violation or, if there is one, what
corrective measures to take. However, if there is no
Joint Board decision within 72 hours the employer
can continue with the work while the Joint Board
reaches its decision. Failure of an employer to
comply with the provisions of section XV gives the
Joint Board the right to require that the offending
company fabricate all pipe for the job on the jobsite
for a period of time determined by the Board or to
make such other award against the employer as it
deems appropriate.
As for the scrub sinks, they are intended for use by
surgeons and other hospital personnel for washing up
where antiseptic cleanliness is necessary. Their
primary requisites, in addition to the requirements of
any other type sink, are apparently nonhand-operat-
ed faucets and nonsplash design. They also have
various mixing and temperature control valves. The
new type sink involved in this proceeding is some-
what more complex than the older style; that is, the
roughly pre-1963 style. Unlike the old style sinks, the
new arrive at the jobsite with the various valves and
and which among other things specifies in great detail what is to be
appropriately considered plumbing work.
207 NLRB No. 58
SOUTHERN CALIF. PIPE TRADES DIST. COUNCIL 16 699
their attendant piping already installed by factory
personnel. The sole task then for the onsite plumber
is simply to attach the new sink to the building water
supply and drain. Compared to the installation of the
old style sinks, new sinks installation represents a
considerable loss of working time to the onsite
plumber for it took about 4 hours to fabricate the
pipes and valves and then install the old but only
about an hour to put in a new sink. Nevertheless,
savings on installation costs would not necessarily
seem to be an important consideration in any
decision to switch to new style sinks for they cost
from two to five times as much as the old style.
Turning now to the particular facts that gave rise to
the charge in this proceeding: Ohland began the
plumbing work on the hospital in February 1971 and
continued that work without incident until March
1972 when installation of the scrub sinks began. On
March 7 Robert Ohland, the company president,
received a telegram stating:
Your firm charged fabrication violation South
Street Hospital, Long Beach by Local 494
involving piping and trim on medical scrub sinks.
Pending investigation do not proceed with work
in question.
E.E. Schell, Secretary,
Joint Arbitration Board
Ohland had his employees stop installing the sinks.
He then telephoned Mulvaney, a business represent-
ative of Local 494, to see what might be done about
the problem and was told the only solution would be
to dismantle the piping on the sinks. Any other
solution, Mulvaney added, would have to be worked
out with the local's business manager, Geiger. There
is no evidence Ohland ever talked to Geiger. On
March 8 Ohland called Stolle for permission to
disassemble the scrub sinks before installation.
Permission was denied on the grounds that the sinks
were furnished by and were the property of National.
Then, about 3-1/2 workdays after having held up on
the sinks. Ohland had his employees continue with
their installation which was completed without
further incident.
In late April Ohland received a letter from the
Joint Arbitration Board stating that on March 15 one
of its subcommittees had investigated the alleged
fabrication violation of the hospital site and that
Ohland had been found in violation of paragraph 82
of the 'contract. The letter also stated that in
consequence Ohland had been assessed $557.76
"payable to the S. Calif. Pipe Trades Retirement
Fund ...." Ohland paid the assessment and
finished up his plumbing work at the hospital in
June.
Thus we have here a situation in which the
Respondents proceeded against Ohland under the
provisions of their plumbing industry bargaining
agreement for an alleged violation of the fabrication
clause; i.e., paragraph 82 of that agreement. There is
no evidence whatsoever that Respondents took any
"extra-contractual" action involving, for example,
threats to strike or picket against Ohland because of
his commitment to install and his actual installation
of the prepiped scrub sinks. It is also clear that the
conclusion Ohland had indeed violated the contract
as charged was reached in the manner contemplated
by the agreement, i.e., by a decision of Joint Board,
and that the assessment leveled against Ohland was
that envisioned by paragraph 13 of the agreement.
Finally, the only disruption in Ohland's operations
was the 3-day delay in sink installation, a temporary
delay provided for in paragraph 82 of the agreement
as an adjunct to the Joint Board's proceedings. There
is no evidence at all that Respondents either
peaceably or otherwise sought to prevent the installa-
tion by Ohland of the Market Forge sinks. Conse-
quently, the matter before us is simply one in which
the Respondents have sought to enforce certain
provisions of their bargaining agreement against a
party to that agreement through the peaceful means
provided by the agreement and by no other means.
The Administrative Law Judge, nevertheless, found
that Respondents' conduct violated Section
8(b)(4)(ii)(B) and that the contract provisions as
applied violated Section 8(e).2 In reaching his results
he concluded that the new style sinks were a new
product; that is, that the Union's claims did not
involve work preservation and that its actions were
not protected by the construction industry proviso to
Section 8(e) as claims under that proviso cannot be
enforced by means proscribed under Section 8(bX4)
of the Act. To support his conclusions it was, of
course, necessary that he find, as indeed he did; that
the 3-day stay on installation of the sinks and the
assessment levied on Ohland were threats, coercion,
or restraint aimed at forcing "any" person to cease
handling certain products or to cease doing business
with any other within the meaning of Section
8(b)(4)(ii)(B) of the Act.
However, there is in our view a significant
distinction between the use of strikes and picketing
or threats of resort to economic weapons in the
settlement of labor-management disputes and the use
2 The Administrative Law Judge included in his 8(e) finding par. 12 of Consequently, as the contract containing par. 12 was entered into in 1969
the contract. However, that paragraph on its face deals with events that and as there is no evidence of any attempt to enforce it within the 10(b)
occur at the time a plumbing contractor starts a job Here that was in period-or for that matter at any other time-we find that its consideration
February 1971 or more than a year before the charge in this case was filed. in this proceeding is barred by Sec. 10(b) of the Act.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a contractually specified short-term stay of work
on the disputed item, so as to avoid confrontation
while peaceful means for resolving those disputes are
invoked pursuant to a jointly agreed-upon procedure.
And as the Board has previously held in effect, a
contractual agreement, such as we have before us, for
compensation of a breach of contract determined by
contractually fair procedures is a reasonable and
peaceful method of resolving a dispute.3 Consequent-
ly, we find that the Union's use of its contract in its
dispute here with Ohland did not constitute statutori-
ly proscribed threats, coercion, or restraint.4
In view of all the foregoing, we find, contrary to
the Administrative .Law Judge, that the Respondents
in resorting to use of the applicable contractual
provisions in the situation here did not violate
Section 8(b)(4)(ii)(B) of the Act and that the contract
as so applied did not violate Section 8(e).
In so concluding, we do not reach the secondary-
primary employer and work preservation issues
considered by the Administrative Law Judge. Those
matters do not become relevant until it is shown-
whichis not the case here-that a respondent has had
recourse to coercive tactics for those cease-handling
or cease-doing-business ends proscribed by the Act.
We have found, under the facts here, no such
coercive tactics.
We are, however, well aware of the possibility of
abuse in this area, and that even the most innocent-
appearing contractual provisions can be used to
further unlawful, rather than lawful, ends, and can
sometimes be invoked in such a way as to thinly
disguise clearly coercive tactics. Consequently, our
result here is closely hedged in by the facts before us,
which show a careful and bona fide application of a
contract which, in this case at least, appears to have
been reasonably applied.5 Nowhere here is there
revealed any attempt by the Respondent to harass or
otherwise coerce Ohland or any other person for
ends proscribed by the Act.
In view of the foregoing, we shall dismiss the
complaint.
3 United Association Pipe Fitters Local Union No. 455 (D. W. Hickey Co.),
154 NLRB 285, 291 and 167 NLRB 602, 604 (Pierre Aircon incident). We
find no merit in the General Counsel's argument that the "Aircon" holding
was reversed or at least severely limited by the Board's holding in
Continental Air Filters Company, 196 NLRB 55. Continental involved
essentially a union 's requiring an employer to make a contribution to
charity before it would permit its members to lay certain nonunion roofing
material . The Board held this unilateral imposition of an assessment to be
unlawful . It distinguished Continental from the "Aircon" incident essentially
on the grounds that "Aircon" involved the fining of an employer by a
contractually established Joint Board for breach of the contract; i.e., for
installing a prepiped boiler. Clearly the present case is an "Aircon," not
Continental, situation.
4 We do not equate the contractually specified 3-day suspension on the
performance of disputed work as essentially equivalent to strike action. The
suspension looks not for company compliance with a union's demands for
its termination . Rather, it automatically expires as provided in the contract
solely with the passage of time-3 days. We perceive a genuine difference
ORDER
It is hereby ordered that the complaint filed herein
be, and it hereby is, dismissed.
MEMBER KENNEDY, dissenting:
I would adopt the findings and conclusions of the
Administrative Law Judge that the Respondent
Unions have violated Section 8(b)(4)(ii)(B) and,
together with the Respondent Employer's Council,
Section 8(e) of the Act. Contrary to my colleagues, I
find that the Respondent Unions' conduct towards
Ohland, the neutral plumbing contractor, was eco-
nomic coercion and restraint, intended to effect a
cessation of business with manufacturers of prepiped
sinks, as proscribed by Section 8(b)(4)(ii)(B) of the,
Act. Inasmuch as that conduct occurred in the
Respondent Unions' application of its contract to
work not historically and traditionally done by
Respondent Unions, the contract as so applied
violated Section 8(e) of the Act.
In February 1971, the plumbing subcontractor,
Robert J. Ohland, Inc., pursuant to its contract with
the general contractor, Stolte, Inc., began plumbing
work on the hospital owned and being built by
National Medical Enterprises, Inc. Ohland's plumber
employees were members of Local 494, a member of
Respondent Plumbers District Council 16, which had
a collective-bargaining agreement with the Southern
California plumbers association of which Ohland
was a member.
In March 1972, Ohland commenced installation of
the Market Forge prepiped sinks, known as Series SS
lOC Scrub Stations, which had been purchased and
were furnished to the job by National Medical
Enterprises, the owner of the hospital, which had
contracted with Stolte for their installation in the
hospital. Stolte had thereafter subcontracted the
installation of the scrub stations to Ohland-i.e., the
simple connecting of the sinks' piping to the water
and disposal lines in the building. At this juncture,
the Unions stopped the work.
between voluntary agreed upon suspensions of work-obviously designed to
provide a "cooling off" period and prevent disruptive confrontations at the
work place-and a strike or refusal to handle goods , instituted by a union in
order to bring pressure to bear on the employer under threat of his being
deprived of the services of his employees until such time as he yields to the
union's demands . We also cannot construe as "threats" or "coercion" a
voluntary agreement arrived at, in advance, to have alleged contractual
violations determined in an agreed-upon forum which may assess damages
for the violation according to a formula which has also been voluntarily
agreed to, as does our dissenting colleague . These limited and carefully
contractually defined measures to resolve disputes are quite different from
the kind of draconian contractual provision giving a union the right to
cancel all contracts with all locals in the United States which was involved
in Ets-Hokin, referred to in the dissent.
r 5 We note specifically that the amount of damages arrived at by the Joint
Board appears to have been directly and reasonably related to wages lost by
the employees , and clearly were not the kind of "extensive punitive
L damages" or "fine" of which our dissenting colleague speaks.
SOUTHERN CALIF. PIPE TRADES DIST. COUNCIL 16 701
On March 7, the Unions admonished Ohland that
it was violating the fabrication clause by installing
National's scrub stations and ordered Ohland to
cease handling the scrub stations. In so doing, the
Unions were clearly implementing the fabrication
clauses of the collective-bargaining agreement-sec-
tion III, paragraph 13, and section XV, paragraphs
82 and 86.6
In the face of the Unions' charge, Ohland ceased
handling the prepiped scrub stations. At this time,
Local 494 told Ohland that the dispute could not be
settled other than by dismantling the piping which
would require the piping to be refabricated by
Ohland's employees. Ohland requested from Stolte
permission to disassemble the scrub stations before
installation. Stolte denied the request because the
stations were owned and furnished by National, the
project owner.
On March 13, Ohland once again began installing
the scrub stations, without refabricating the piping.
Because Ohland did so, the Joint Arbitration Board,
established by the collective-bargaining agreement,
and acting pursuant to section III, paragraph 13, and
section XV, paragraphs 82 and 86 of the agreement,
found Ohland to have violated the agreement by
handling scrub stations with piping and trim "fabri-
cated by other than employees covered by the
collective-bargaining agreement." The Joint Board
assessed Ohland the sum of $557.76, to be paid to the
Pipe Trades Retirement Fund. Ohland paid the fine.
The majority first finds that the Unions' applica-
tion of "its contract in its dispute here with Ohland
did not constitute statutorily proscribed threats,
coercion, or restraint," apparently because the strike
(or "the contractually specified 3-day suspension on
the performance of disputed work" as they choose to
call it) and the monetary assessment were contractu-
ally provided for and were not unreasonable means
of settling the dispute. However, threats, coercion, or
restraint do not, chameleon-like, become statutorily
permissible by camouflaging them in contract lan-
guage. As the Court of Appeals for the Fifth Circuit
said with respect to 8(b)(4)(ii)(B) coercion in Local
6 For the reasons stated by the majority , I would agree that considera-
tion of par. 12 of sec. III is barred by Sec. 10(b) of the Act, in the
circumstances of this case.
7 The Board, at in. 6, p. 842, of Ets-Hokin, quoted the following language
of the Court of Appeals for the District of Columbia in Local No. 5, United
Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL-CIO (Venneri Co.) v.
N. L. R, B., 321 F.2d 366, 370:
We realize that this conclusion may leave the union with a valid
contractual provision and with no means of enforcing it other than in a
civil suit . We also realize the difficulty the building crafts have with the
secondary boycott provisions of the Labor Management Relations Act,
but this court is not the forum in which to seek relief from what the
union characterizes as "the shackles" of this statue.
8 My colleagues apparently regard "carefully contractually defined
measures to resolve disputes " as sufficient to camouflage the statutory
Union No. 48 of Sheet Metal Workers International
Association v. The Hardy Corporation, 332 F.2d 682 at
686:
We believe that the Congress used "coerce" in
the section under consideration as a word of art,
and that it means no more than non judicial acts
of a compelling or restraining nature , applied by
way of concerted self help consisting of a strike,
picketing or other economic retaliation or pressure
in a background of a labor dispute. [Emphasis
supplied.]
This language was quoted with approval and relied
upon by the Board in , Ets-Hokin Corporation, 154
NLRB 839, where the Board held violative of Section
8(b)(4)(B) the subcontracting provision of a collec-
tive-bargaining agreement, admittedly within the
construction proviso to Section 8(e), which gave the
union the power to cancel all contracts of the
employer with all of the local unions in the United
States if the employer violated the subcontracting
clause of its collective-bargaining agreement with
one local union. The Board reasoned that such a
contract provision is not controlling, inasmuch as the
Board does not administer the law of private
contracts. The Board found, correctly in my view,
that the termination clause involved a "form of
economic pressure proscribed by Section 8(b)(4)(B)
117 Ibid at 843.
In my view, therefore, the 3-1/2-day work stoppage
was a form of economic pressure proscribed by
Section 8(b)(4)(ii)(B). Characterizing the cessation of
handling of a third person's products as a "contrac-
tually specified 3-day suspension on the performance
of disputed work" in no way affects the economic
coercion and restraints involved.
For the same reasons, i would also find that the
$557.76 fine constituted coercion and restraint.
Paragraph 86D of section XV involved herein states
as follows:
D. Failure to comply with the provisions of
this Section of the Agreement shall give the Joint
Arbitration Board the right to require the offend-
ing Contractor to fabricate all material on the job
issues in this case . Is not a 3-1 /2-day refusal to handle goods precisely that,
regardless of its movation ? While the damages assessed may be pursuant to
the collective-bargaining agreement , by what principle can it be said that an
assessment of damages is not economic pressure, particularly when
supported by the threat of much more severe penalties, if compliance is not
given, or when the assessed person lacks any control whatsoever over the
"suspended" work? But no , states the majority, since here the Employer
voluntarily agreed, in advance, to contract language which permitted this
conduct, although the issue of initial entry into the agreement has not been
placed before us. And the majority seeks further solace in the hope that the
conduct in this case is less disruptive than prolonged indeterminate jobsite
strikes. The essential statutory issue remains , in my view, did this conduct
constitute threats , coercion , or restraint? To me, it clearly does . And I do
not agree that contract language shields this statutory issue from
consideration by the Board.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
site, which is to be installed in the area where the
violation occurred, for a period of time to be
determined by the Joint Arbitration Board, and
such other damages, or make any other award
against the Employer which it may deem appropriate
under the circumstances of the particular case.
[Emphasis supplied.]
In the face of the implied threat of such sweeping
power to inflict extensive punitive damages and to
disrupt an employer's normal work assignments and
conduct of its business, an implied threat which
underlay the assessment against Ohland, I find it not
surprising that Ohland submitted to the pressure of
the fine and paid it. The Board just recently held that
such fines as were levied here, despite the fact that
they were provided for in the collective-bargaining
agreement, are coercive within the meaning of
Section 8(b)(4)(ii)(B). International Union of Operat-
ing Engineers, Local Union No. 12 (Acco Construction
Equipment, Inc.), 204 NLRB No. 115. I would
therefore find that the fine was unlawful. Sheet Metal
Workers International Association, Local Union No.
223, AFL-CIO (Continental Air Filters Company), 196
NLRB 55.9
It is by now a well-settled principle of law that an
asserted contractual right, whether substantive or
procedural, is not a defense to conduct which falls
within the proscription of Section 8(b)(4) of the Act.
N. L. R. B. v. Local 1291, International Longshoremen's
Association, AFL-CIO [Northern Metal Co.], 345
F.2d 4, 10-11 (C.A. 3, 1965), cert. denied 382 U.S.
891; N.L.R.B. v. Local 825, International Union of
Operating Engineers, AFL-CIO [Nichols Electric
Co.], 326 F.2d 213, 218 (C.A. 3, 1964); Douds v.
International Longshoremen's Association, Ind [Abra-
ham Kaplan], 242 F.2d 808, 812 (C.A. 2, 1957);
N. L. R. B. v. Bangor Building Trades Council [Davison
Constr. Co.], 278 F.2d 287 (C.A. 1, 1960). See also
Local 1976, United Brotherhood of Carpenters and
Joiners Of America, AFL [Sand Door & Plywood Co.]
v. N.L.R.B., 357 U.S. 93, 105 (1958). It is also well
established that threats of fines or imposition of a
monetary penalty upon an employer in furtherance
of a proscribed object, whether or not coupled with
expressed or implied threat of a strike in the event of
noncompliance, are as coercive as threats of a work
stoppage and are proscribed by Section 8(b)(4) of the
Act. Penello v. International Longshoremen's Associa-
tion, Local 1248, AFL-CIO, 455 F.2d 942,943 (C.A.
4, 1971); International Longshoremen's Association,
9 In my view, United Association Pipe Fitters Local Union (No. 455
D.A.W Hickey Co.), supra, In. 3 of the majority opinion, is clearly
distinguishable. The assessment in that case, not backed by any implied
threat of imposition of extensive punitive damages, was imposed for the
purpose of preserving unit work, a lawful primary objective Furthermore,
to the extent that the decision rested upon grounds that the contract
permitted such a fine, it is not in harmony with the body of the law on this
Local 1248 (U.S. Naval Supply Center), 195 NLRB
273; International Union of Operating Engineers Local
Union No. 12, supra; Sheet Metal Workers Interna-
tional Association, supra; Local Union No. 223
Glaziers Local Union 1184, Brotherhood of Painters,
Decorators and Paperhangers of America, AFL-CIO
(Tennessee Glass Company, Incorporated), 164 NLRB
116; Orange Belt District Council of Painters #48,
AFL-CIO (Calhoun Drywall Company), 153 NLRB
1196, 1200-01. See also N.L.R.B. v. International
Brotherhood of Electrical Workers and its Local 769
[Ets-Hokin Corp.], 405 F.2d 159, 162 (C.A. 9, 1968),
cert. denied 395 U.S. 921. My colleagues on the
majority are now seeking to ignore the well-estab-
lished principles. I am unable to join in that result.
Turning to the second major area of my disagree-
ment with the majority, I would find, as did the
Administrative Law Judge, that the Respondent
Unions' purpose was to coerce Ohland to put
pressure on Stolte, and National, to cease doing
business with the manufacturer of the scrub stations.
The Board does not have to decide whether the
Unions' primary dispute was with Stolte, the general
contractor, or the owner of the project, National,
since in any event Ohland was merely a secondary
employer with no power to alter the nature of the
work performed on the scrub sinks. Indeed, Stolte
refused to permit Ohland to comply with the Unions'
demands by dismantling the sinks' piping, on the
ground that Stolte did not have the power to grant
such permission because National owned and fur-
nished the sinks. Therefore, I regard as clearly
controlling our recent decision in Local Union No.
438, United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL-CIO (George Koch Sons,
Inc.).10 Ohland was truly an "unoffending employer"
and had no control over the situation in which it
found itself. At the time that Ohland subcontracted
for the work with Stolte, Stolte and the owner had
entered into an agreement whereby Stolte would
install the Market Forge scrub stations which the
owner of the project itself bought and furnished. In
these circumstances it is clear that Ohland was a
secondary party in the dispute, and that the Unions'
objective in coercing Ohland was to bring about a
cessation of business with the manufacturer, Market
Forge.11
The Respondent Unions here were not seeking to
preserve unit work. I would adopt the Administrative
point and I would not follow it.
io 201 NLRB 59.
ii Whether Ohland suffered or was likely to suffer economic loss is
irrelevant to a determination of whether the test of "to threaten, coerce, or
restrain" of Sec. 8(b)(4)(ii)(B) has been satisfied. N L.R B v. Fruit and
Vegetable Packers & Warehousemen, Local 760 [Tree Fruits Labor Relations
Committee, Inc.], 377 U.S. 58 (1964).
SOUTHERN CALIF. PIPE TRADES DIST. COUNCIL 16 703
Law Judge's finding that the work in dispute had not
been historically and traditionally performed by
Respondents. The Market Forge surgical scrub
stations were technological innovations, quite differ-
ent from the old sinks, and Respondent Unions had
not traditionally performed the work since the scrub
stations' introduction in about 1963. The intended
result of the Unions' coercion and restraint of
unoffending subcontractors such as Ohland can only
be to acquire the tasks now performed by employees
of the manufacturer. That the Unions are weaving
such a blanket over the jobsites in their jurisdictions
is clear. In April 1972, Hansen Plumbing Company
was fined $557.76, and in March 1972, Schilling, a
plumbing contractor, was assessed a fine of $232.40,
for the same reason as Ohland here was fined.
Indeed, E.E. Schell, business manager of Respondent
District Council since 1953 and secretary to the
negotiating committee, testified that it was the
Unions' hope or purpose, in negotiating paragraphs
12 and 13, that pressure would be applied to the
general contractor to award all plumbing work to the
plumbing contractor.
Significant change in a secondary person's method
of doing business is an objective proscribed by the
"cease doing business" language of Section
8(b)(4)(ii)(B). N.L.R.B. v. Local 825, International
Union of Operating Engineers, AFL-CIO, [Burns and
Roe, Inc.] 400 U.S. 297 (1971). In this case, it
involves National's ceasing to purchase, Stolte's
ceasing to handle and Market Forge's ceasing to
manufacture in its present manner, the modem
surgical scrub stations. The majority's holding in this
case will permit the Respondent Unions to continue
to make the surgical scrub stations more costly to
install and disruptive of work assignments, and will,
albeit more subtly, discourage secondary persons
from purchasing Market Forge's product.
In regard to the majority's apparent conclusion
that the parties' contract excuses 8(b)(4)(ii)(B)
conduct, I would remind them of our decision in
Local Union No. 438, United Association of Journey-
men and Apprentices of the Plumbing and Pipe Fitting
Industry, supra, where we said:
I
First, our decision here does not reach the
nonstatutory issue of whether a contract breach
occurred when Phillips undertook a contract in
seeming conflict with the agreement with the
Respondents to which Phillips was a signatory.25
By our decision here, we simply hold that the
Respondents' actions were in violation of Section
8(b)(4)(B). If a contract breach occurred, Respon-
dents' remedy may well lie in a civil suit for
breach of contract,26 but the possibility that such
an action might lie does not immunize the
Respondents' actions at issue here from scrutiny
under the National Labor Relations Act, which
the Board is entrusted to administer. As the
District of Columbia Circuit Court has stated
"[R]egardless of the ligitimacy of the end sought
by the union, it cannot engage in secondary
pressure to obtain it." 27 [Fns. 26 and 27 omitted.]
25 We note in passing that Phillips was in fact adjudged in
violation of that agreement by a conciliation committee composed of
representatives of the Association and Local 438. Such a decision is,
however, not binding on us here.
Furthermore, in my view the majority's deferral to
"the use of a contractually specified short-term stay of
work on the disputed item, so as to avoid confronta-
tion while peaceful means for resolving those disputes
are invoked pursuant to a jointly agreed-upon proce-
dure," is a sharp departure from existing Board law.
Neither National, the owner, nor Market Forge, the
manufacturer, are parties to such a procedure. We
refused to defer to such a procedure in International
Brotherhood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers & Helpers, Local 92 (Bigge Drayage
Company)- 12
For the foregoing reasons, I would find that
Respondent Unions have violated Section
8(b)(4)(ii)(B) by engaging in a work stoppage and
levying a fine upon a secondary employer. Also,
since these acts were taken in applying section III,
paragraph 13, and section XV, paragraphs 82 and 86,
to work which was not historically and traditionally
done by Respondent Unions, I would ' find these
contractual provisions violative of Section 8(e).
12 197 NLRB 281, Chairman Miller, concurring, stated that "As an
interpretation of the agreement , the award was a part thereof. Far from
resolving an unfair labor practice issue, the determination gave rise to the
unfair labor practice. In these circumstances the joint panel proceeding can
in no sense be regarded as an alternative forum for resolving issues
appropriate for Board determination."
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY , Administrative Law Judge: This
case, with all parties represented, was heard in Los
Angeles, California, on September 13 and 14, 1972,1 on the
consolidated complaint of the General Counsel and answer
of the Respondent Unions. The complaint was issued on
May 26, based upon charges filed on March 10.
The complaint alleges, in substance, that Southern
California Pipe Trades District Council No. 16 (herein
Respondent District Council) and United Association of
Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, Local
No. 494 (herein Respondent Local 494, and herein
collectively called Respondent Unions), engaged in, and
are engaged in, unfair labor practices affecting commerce
1 All dates hereinafter will be 1972, unless otherwise indicated.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the meaning of Section 8(e) of the Act, in that said
Respondent Unions entered into, invoked, and gave effect
to a contract, namely, the 1969-72 Plumbing-Heating and
Piping Industry of Southern California Agreement, section
III, paragraphs 12 and 13, and section XV, paragraph 86,
whereby the Plumbing-Heating and Piping Employers
Council (herein Employers Council), a party to the
contract, on behalf of its employer-members, agreed to
cease doing business with and from handling products
manufactured by Market Forge and other persons. The
complaint also alleges in substance that Respondent
Unions threatened, coerced and restrained Robert J.
Ohland, Inc., (herein Ohland), and other persons engaged
in commerce where objects thereof were to force or require
Ohland to cease doing business with Stolte, Inc. (herein
Stolte), in order to compel Stolte to cease doing business
with National Medical Enterprises, Inc. (herein National);
or to force or require Ohland to cease handling products
manufactured by other persons, including Market Forge,
thereby violating Section 8(b)(4)(ii)(B) of the Act. Respon-
dent Unions denied the commission of the unfair labor
practices as alleged in the complaint.
Extremely helpful briefs have been filed by all parties
and have been carefully considered.
Upon the entire record and my observation of the
witnesses, I hereby make the following:
FINDINGS OF FACT
I. JURISDICTION
Employers Council with its principal office and place of
business at Los Angeles, California, is an association of
employers engaged in business in the State of California as
plumbing, heating, and piping contractors in the building
and construction industry. Employers Council was organ-
ized for the purpose of, inter alia, and engages in
negotiating and entering into labor contracts on behalf of
its employer-members with the collective-bargaining repre-
sentative of their employees, including Respondent Un-
ions, and in representing its employer-members in matters
of labor disputes and grievances and in other phases of
labor-management relations. In the course and conduct of
their business operations described above, the employer-
members of Employers Council which bargains collectively
on a multiemployer basis through Employers Council in
the aggregate, annually purchase and receive goods and
materials valued in excess of $50,000 from points and
places directly outside the State of California and furnish
services valued in excess of $50,000 to customers located in
the State of California, each of which, in turn, annually
purchases and receives supplies valued in excess of $50,000
directly from suppliers located outside the State of
California.
Associated General Contractors of California, Inc.
(herein AGC or Charging Party), a California corporation
with an office and place of business at Los Angeles,
2 See appendix attached hereto , for the disputed contract language.
3 The section of the Act reads as follows
(e) It shall be an unfair labor practice for any labor organization
and any employer to enter into any contractor agreement , express or
implied, whereby such employer ceases or refrains or agrees to cease or
California, is an association of employers engaged in
business in the State of California as general contractors in
the building and construction industry. AGC was organ-
ized for the purpose of, inter alia, and engages in,
negotiating and entering into labor contracts on behalf of
its employer-members with the collective-bargaining repre-
sentatives of their employees, and in representing its
employer-members in matters of labor disputes and
grievances and in other phases of labor-management
relations. Stolte is now and has been at all times material
herein an employer-member of AGC. In the course and
conduct of their business operations as herein described,
the employer-members of AGC, including Stolte, in the
aggregate, annually purchase and receive goods and
materials valued in excess of $50,000 from points and
places directly outside the State of California, and furnish
services valued in excess of $50,000 to customers located in
the State of California, each of which, in turn, annually
purchases and receives supplies valued in excess of $50,000
directly from suppliers located outside, the State of
California.
Ohland is now, and has been at all times material herein,
a corporation engaged in business as a plumbing, heating,
and piping contractor in the building and construction
industry in Southern California. Ohland is now and has
been at all times material herein, an employer-member of
Employers Council. The parties have stipulated and I
herewith find that the Employers Council and Ohland are,
and each of them is, and have been at all times material
herein, employers engaged in commerce or in an industry
affecting commerce within the meaning of Section 2(6) and
(7) and Section 8(e) of the Act. The parties have agreed
and I herewith find that Stolte and Ohland are now, and
each of them is, and at all times material herein have been,
persons engaged in commerce or in an industry affecting
commerce within the meaning of Section 8(b)(4)(ii)(B) of
the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent District Council is comprised of 17 affiliated
local unions, including Respondent Local 494, whose
geographical jurisdictions are all located in Southern
California in the area between San Luis Obispo County
and the Mexican border. The parties have agreed and I
herewith find that Respondent Unions are, and each of
them is, a labor organization within the meaning of Section
2(5) and 8(e) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
1. Are portions2 of the collective-bargaining agreement
entered into between Respondent Unions and the Employ-
ers Council violative of Section 8(e) 3 of the Act under the
Board's "Right to Control" doctrine because the thrust of
these contract provisions is secondary in nature?
refrain from handling, using, selling, transporting or otherwise dealing
in any of the products of any other employer, or to cease doing
business with any other person, and any contract or agreement entered
into heretofore or hereafter containing such an agreement shall be to
such extent unenforceable and void: Provided, That nothing in this
SOUTHERN CALIF. PIPE TRADES DIST. COUNCIL 16 705
2. Is the contract language, as interpreted and enforced
by Respondent Unions, designed to capture new work, or
to preserve work for bargaining unit employees?
3. Is the invoking of a fine upon an employer-member
of the Employers Council pursuant to the provisions of
paragraph 86 of the collective-bargaining agreement4__
because the employer did not comply with the alleged
unlawful provisions of the agreement, violative of Section
8(b)(4)(ii)(B) of the Act?5
B. The Facts
In June, 1971, Stolte-the general contractor-entered
into a construction agreement with National for the
construction of a hospital in Lakewood, California,
sometimes referred to herein as South Street Hospital.
Stolte was required under terms of the contract to install,
or have installed, certain prepiped stainless steel surgical
scrub sinks which were purchased and furnished by
National, the owner-builder of the hospital In February
1971,6 Ohland entered into an agreement with Stolte for
the plumbing construction work to be performed at the
aforementioned hospital wherein Ohland was required to
install certain prepiped stainless steel surgical scrub sinks
to be furnished by National.
Mr. Robert J. Ohland testified that his employee
plumbers performed work from February 1971 until June
1972 or 10,582 hours of work at the Lakewood Hospital,
which included some 9 or 10 hours of work to install eight
or nine Market Forge surgical scrub sinks.
Mr. Ohland testified that he received the information
contained in a telegram (G.C. Exh. 6), by telephone on
March 7. (The exhibit shows a date stamp of March 9, but
this was the confirmation copy that was delivered by
mail.) 7
Shortly thereafter Mr. Ohland issued instructions to the
men on the job to discontinue installing (plumbing) the
surgical sinks. Mr. Ohland then called Mulvaney of Local
494 who advised that the only way to settle the dispute was
to dismantle the piping on the units. Mulvaney told Mr.
Ohland that any other settlement would have to be taken
up with Mr. Geiger, business manager of Local 494. There
is no indication in the record that Mr. Ohland ever talked
subsection (e) shall apply to an agreement between a labor organization
and 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: Provided further, That for the purposes of this subsection
(e) and section 8(b)(4)(B) the terms "any employer", "any person
engaged in commerce or in industry affecting commerce", and "any
person" when used in relation to the terms "any other producer,
processor, or manufacturer", "any other employer", or "any other
person" shall not include persons in the relation of a jobber,
manufacturer, contractor, or subcontractor working on the goods or
premises of the jobber or manufacturer or performing parts of an
integrated process of production in the apparel and clothing industry
Provided further, That nothing in this Act shall prohibit the enforce-
ment of any agreement which is within the foregoing exception.
4 See 'Appendix.
5 This section of the Act reads as follows:
8(b)(4) It shall be an unfair labor practice for a labor organization
or its agents .. .
(ii) to threaten, coerce, or restrain any person engaged in commerce
or in an industry affecting commerce, where in either case an object
thereof is:... .
to Geiger, but on March 13, which was the following
Monday, the installation of the surgical sinks was contin-
ued until finished without further incident. Thereafter Mr.
Ohland was advised by letter dated April 21 that the
subcommittee of the joint arbitration board had visited the
job, the South Street Hospital, on March 15 at 2:45 p.m. in
connection with the charged fabrication violation. (See
Resp. Exh. 1). The letter also advised Ohland was found to
be in violation of section XV, paragraph 82, and assessed
the sum of $557.76 to be paid to the Pipe Trades retirement
fund. Mr. Ohland never saw anyone making an investiga-
tion, nor was he advised by anyone on the job that an
investigation had been made and there were no further
telephone conversations with the Union about the matter.
The fine was paid.
There was testimony from George J. Sweitzer, who is
Regional Manager of the American Sterilizer Company, a
manufacturer of an automatic surgical scrub sink in
competition to Market Forge, that the modem stainless
steel surgical scrub station is substantially a different
product than the old porcelain scrub sinks. (See G.C. Exh.
7). The Uni-Matic I was introduced in either 1963 or 1964
and the Uni-Matic lI was introduced about 1967-the
major change on the two models being appearance.
Sweitzer said somewhere between 100 and 200 American
Sterilizer Surgical Scrub Units had been installed in
Southern California hospitals. He testified that the surgical
scrub sinks are shipped as a unit and it is only necessary to
connect the gooseneck spout, the waste line, and the hot
and cold service lines. Otherwise all the piping and
fabrication work has been completed and tested at the
factory. During the past 1 year and 8 months since
Sweitzer has been in Southern California he has no
knowledge of any labor difficulties or problems surround-
ing the installation of the surgical scrub sinks.
James Reid, manager of the Equipment Division of
Market Forge testified as follows- The Company's surgical
scrub sinks have been marketed since 1967. Company
records indicate there have been 44 scrub stations or sinks
sold in Southern California. Witness stated that he would
only have knowledge of labor disputes concerning the
installation of the scrub sinks if such disputes were not
settled at the jobsite. The only labor dispute concerning the
(B) forcing or requiring any person to cease using, selling,
handling, transporting , or otherwise dealing in the products of
any other producer, processor, or manufacturer, or to cease
doing business with any other person, or forcing or requiring
any other employer to recognize or bargain with a labor
organization as the representative of his employees unless such
labor organization has been certified as the representative of
such employees under the provisions of Section 9: Provided,
That nothing contained in this clause (B) shall be construed to
make unlawful, where not otherwise unlawful, any primary
strike or primary picketing; . . .
6 These dates were taken from the all party'stipulation . See G.C. Exh 2.
If there is an error-the date of the general contractor's and the
subcontractor's agreement appears to predate the general contractor's
agreement with the owner-builder-it is of no material significance in the
determination of the merits of this dispute.
r The telegram read as follows:
YOUR FIRM CHARGED FABRICATION VIOLATION SOUTH STREET
HOSPITAL LONG BEACH BY LOCAL 494 INVOLVING PIPING AND TRIM ON
MEDICAL SCRUB SINKS PENDING INVESTIGATION DO NOT PROCEED WITH
WORK IN QUESTION . E. E. SCHELL, SECRETARY , JOINT ARBITRATION
BOARD
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
installation of the Market Forge scrub sinks of which the
witness has any knowledge or information is the current
matter.
Witness testified that the Market Forge scrub sink was
specifically and scientifically designed to reduce splash, to
control flow and temperature of water, to provide
illumination, and to provide an arrangement whereby a
surgical team comprised of two, three, or four people could
all scrub under ideal conditions and still be close enough to
engage in conversation. Reid testified that their "on-off"
valve is manufactured to their specifications by a valve
firm and is not available on the open market. A special jig
has been designed and built which is used in their factory
to properly attach the valve to the framework to provide
proper alignment and location. The jig is not available on
the open market, having been built by Market Forge for
their own use.
The Market Forge surgical scrub sink is shipped to the
jobsite ready for installation. The cost of the sink varies
from two to five times the cost of the old type sink (see
G.C. Exh. 5). Under cross-examination, Reid acknowl-
edged that there could have been labor disputes at a
number of jobs that might not have been brought to his
attention; that the old type scrub sinks have a valve to
control the volume of water and temperature; and that like
the old units the function of the new surgical stainless steel
scrub sinks is to provide a surgical scrub for the physicians
or nurses prior to an operation.
Robert L. Johnson stated that he is a vice president with
Stolte and has been employed by them for 14 years. His
employer has been the general contractor on 20 to 25
hospitals since 1967-including five of those shown on
General Counsel's Exhibit 9-and to the best of his
knowledge and belief his company has never used anyone
but union subcontractors for plumbing work. Johnson was
unaware of any nonunion plumbing contractors that had
ever done plumbing work at hospitals in Southern
California. Johnson stated that he received a phone call
from Ohland on or about March 8 asking for permission to
disassemble five or six Market Forge scrub sinks. The
request was denied by Johnson because the sinks had been
furnished and were the property of the owner-builder.
It was stipulated by the parties that Hansen Plumbing
Company was charged by Plumbers Local 398 with a
violation of the fabrication clause of the pertinent contract
in April 1972; that the charge concerned the installation of
surgical scrub -sinks and that the joint arbitration board
assessed damages in the sum of $557.76 which was paid. A
similar charge was filed by Plumbers Local 494 against
plumbing contractor Schilling, on March 2 resulting in a
$232.40 assessment which was paid.
James H. Graham testified that he was president and
business agent for Plumbers Local 114 in Santa Barbara,
California. He said it was necessary for him and his
foreman to disassemble and then reassemble the Uni-
Matic II surgical scrub sink, manufactured by American
Sterilizer Company, in December 1971 on an occasion
when they were installing said sinks in the General
9 Schell did not actually appear before the court in this proceeding. Mr
Schell testified in a companion or related case (Kinutock Division, Tridair
Industries, Incorporated 207 NLRB No. 59) involving the same Respondent
Hospital at Santa Barbara. The disassembling of these
sinks (witness said there were two, three-station sinks and
two, two-station units) was necessary because the sinks
were to be located against a structural wall. It was not
possible to install the normal rough-in plumbing and in
order to plumb the sinks properly it "was necessary to
disassemble them and make them fit." Graham testified he
encountered no particular difficulties in doing the work
and he didn't ask permission from anyone because his job
was to install the sinks.
Mr. E. E. Schell testified8 that he is the business
manager of the Respondent District Council and has been
since 1953. His responsibilities are administrative and
involve the coordination of the practices and policies of the
member locals and the district council in order to maintain
uniformity within the council. Schell is not on the
negotiating committee, but he sits in as the secretary and
takes the union notes. The master contract (G.C. Exh. 3) is
negotiated with the Employers Council. Witness testified
the Joint Arbitration Board is composed of 10 people-five
selected by the Employers Council and five by the
Respondent District Council and he serves as a nonmem-
ber secretary. There is a subcommittee composed of two
people-one from each party to the contract-that
generally investigates and determines complaints from
locals regarding alleged fabrication violations of the
contract. The determination of the subcommittee is then
appealable to the Joint Board.
Schell testified to the gradual reduction and shrinkage of
work normally performed by the plumbers which led to the
Union's insistence on "work preservation" language in the
1969-72 agreement. The language of paragraph 12 and 13
was only obtained after an 81-day strike. Schell testified
that he knows of no new construction plumbing contractor
that is not bound by the union contract. He estimated that
99 and 9/10 percent of all new plumbing contracting work
is done pursuant to the collective-bargaining agreement.
Schell said that it was the Union's hope or purpose in
negotiating paragraphs 12 and 13, that pressure would be
applied to the general contractor to award all the plumbing
work to the plumbing contractor.
Analysis
On these facts, and the pertinent and relevant portions
are not in dispute, Ohland had no right of control over the
surgical scrub sinks. The sinks were purchased by
National, the owner-builder. Ohland's plumbing subcon-
tract with Stolte called for installing the sinks. There was
no way Ohland could satisfy the Respondents except by
either allowing his employees to disassemble and rebuild
the sinks-which the owner-builder and general contractor
would not permit-or in paying a fine equivalent in money
to wages lost by Ohland's employees because some alleged
"plumbing" work had been performed on the sinks by
employees not covered under the Respondents' labor
agreement. According to Reid, whom I credit, the Market
Forge surgical scrub sink is shipped ready to install with all
fabrication and piping work performed at the factory
on July 5 and 7, 1972, and the parties agreed to submit the transcript of his
testunony taken from the Kzmstock case as A. Exh. I
SOUTHERN CALIF. PIPE TRADES DIST. COUNCIL 16 707
where the employees are represented by the United Steel
Workers of America.
Applying the Board's "right-to-control" test as set forth
in numerous cases,9 and with due deference and respect for
those courts that have disagreed with the Board, it is clear
that Ohland-who was forced to pay the fine-was a
secondary employer and that the primary dispute was with
Stolte because National preferred and specifieda particu-
lar "pre-piped, fully fabricated at the factory, modem
surgical scrub sink," in place of an inferior product that
might have provided a very few additional hours of work at
the jobsite for members of the Respondent Unions. The
Board deems as neutral persons those employers who are
powerless to comply with the demands of the union. As
indicated above, Ohland was powerless to provide the
work.
Respondents argue that their course of conduct is not
proscribed by the Act because their labor agreement with
OJiland only related to construction or fabrication work to
be done at the jobsite and thus is exempt by the proviso to
Section 8(e). However, "both the Board and courts have
said that although a contract within the construction
industry proviso to Section 8(e) is exempt from the
operation of that section, it may be enforced only through
lawsuits and not by threats, coercion, or restraint pro-
scribed by Section 8(b)(4)(B). The term `coercion' as used
means `nonjudicial acts of a compelling or restraining
nature, applied by way of concerted self-help consisting of
a strike, picketing or other economic retaliation or pressure
in a background of a labor dispute.' " 10
The telegram Ohland received from Schell directed that
work on the sinks be discontinued pending investigation.
The work was discontinued. A fine was assessed and paid.
Section XV, paragraph 86, refers to continuing the work if
the joint arbitration board has not acted within 72 hours
from the time the complaint is received. A 72-hour
shutdown of a job would be a very severe economic
retaliation. Accordingly, I find that both by the language
contained in section III, paragraphs 12 and 13, and section
XV, paragraph 86 of the union agreement (G.C. Exh. 3)
and the course of conduct pursued by the Respondents,
that a form of economic pressure proscribed by Section
8(b)(4)(B) is involved and that it exceeded the limited
exemption of the construction industry proviso to Section
8(e).11
However, Respondent argues most persuasively that the
language contained in section III, paragraphs 12 and 13
and section XV are lawful primary work preservation
clauses designed to preserve and/or reacquire work that
9 International Longshoremen's Association, Local 1694 (Bd of Harbor
Commissioners), 137 NLRB 1178, enfd. 331 F.2d 712 (C.A. 3, 1964); Ohio
Valley Carpenters District Council (Cardinal Industries), 144 NLRB 91, enfd.
339 F.2d 142 (C.A. 6, 1964); Local 636, United Association of Journeymen
and Apprentices of the Plumbing and Ptpefitting Industry (Mechanical
Contractors Association, 177 NLRB 189, enforcement dented 430 F.2d 906
(C.A.D.C., 1970), supp. dec. 189 NLRB 661; Local 742, United Brotherhood
of Carpenters and Joiners of America (J L Simmons Company), 178 NLRB
351, remanded 444 F.2d 895 (C.A.D C., 1971), International Association of
Heat and -Frost Insulators and Asbestos Workers, Local 12 (Westinghouse
Electric Company), 193 NLRB 40, enfd. 80 LRRM 2028 (CA. 2, 1972).
10 Ets-Hokin Corporation, 154 NLRB 839 at 842 (fns. omitted).
11 See N.L.R.B. v. International Brotherhood of Electrical Workers
AFL-CIO and Local 769 [Ets-Hokin Corp], 405 F.2d 159 (1968), wherein
has traditionally been performed by plumbers and as such,
any coercive activity directed against Ohland is lawful.12 I
cannot agree.13 While the language contained in para-
graphs 13 and the fabrication and installation paragraphs
of section XV relating to the Employer's work commitment
might in some instances be work preservation, under the
circumstances of this case , the language and its enforce-
ment resulted in the boycott of a product the Respondents
were not capable of producing on the jobsite. The
testimony of Graham relating to his abilities to disassemble
and then reassemble a similar product made by a
competitor is hardly proof to the contrary. While it is easy
to say the function of the older sinks was the same as the
function of the new product, and thus this is work
historically and traditionally performed by Respondents,
this argument is misleading. It might be said that the
function of a horse and buggy was the same as today's
automobile, but , one can hardly say they are the same
product.14
I find the Market Forge surgical scrub sink to be a new
and different product from the older type scrub sinks such
as that illustrated by General Counsel's Exhibit 5.
Respondents' course of conduct in the instant case resulted
in a reaching out to monopolize all the manufacturing job
tasks. Respondents' conduct, if allowed to go unrestrained,
would seriously affect labor conditions elsewhere, and,
while readily distinguishable, this situation has many of the
swordlike qualities of the Allen Bradley case.15 I find the
language contained in section III, paragraphs 12 and 13,
and section XV, as applied and enforced under the facts of
this case to be violative of Section 8(e) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of Respondents as set forth in section III,
above, occurring in connection with the operations of
Employers, described in section I, above, have a close,
intimate, and substantial relation to trade, traffic and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
THE'REMEDY
Having found Respondents, and each of them , to have
engaged in certain unfair- labor practices within the
meaning of Section 8(e) and Section 8(b)(4)(ii)(B) of the
Act, I shall recommend that they cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
the Ninth Circuit affirmed the Board's holding in Ets-Hokin, supra, cert.
denied 395 U.S. 921.
12 National Woodwork Manufacturers Association v. N.L.R B , 386 U.S.
612 (1967).
13 See Local 636, United Association of Journeymen and Apprentices of the
U S and Canada, AFL-CIO, 177 NLRB 189 ; Sheet Metal Workers
International Association, Local 28, AFL-CIO (Diesel Construction), 196
NLRB 1065.
14 There are undoubtedly many examples that could be given to
illustrate the fallacy of Respondents' "same function" argument, but
perhaps the most graphic would be today 's modem toilet compared to
yesterday's outhouse.
15 Allen Bradley Co. v. Local 3, Electrical Workers, 325 U.S. 797.
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent District Council and Respondent Local
494 are, and each of them is, a labor organization within
the meaning of Section 2(5) of the Act.
2. Each of the persons described in Section I above of
this Decision is an employer within the meaning of Section
2(2), and has engaged in commerce as defined in Section
2(6) and (7) of the Act.
3. By fining Ohland, who installed the Market Forge
surgical scrub sinks, the Respondents, and each of them,
did coerce and restrain a person engaged in commerce with
an object of forcing or requiring Stolte, the general
contractor, to force or require National to cease doing
business with Market Forge, thereby violating Section
8(b)(4)(ii)(B) of the Act.
4. By the interpretation and application of section III,
paragraphs 12, 13, and section XV of the labor agreement
between Respondent District Council, on behalf of
Respondent Local 494, and the Employers Council,
Respondents, and each of them, have entered into a
contract or agreement prohibited by Section 8(e) of the
Act.
Upon the foregoing findings of fact, conclusions of law
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
[Recommended Order omitted from publication.)
APPENDIX
Section III, paragraphs 12 and 13 of the contract
between Respondent Unions and the Employers Council
read as follows:
that all work covered under "Scope of Work" in the
P.I.P.E . Specification Guide (Revised Edition), except
those items excluded and listed below, including but
not limited to all fabrication and installation work,
shall be performed by the Employer under the terms
and conditions of this Agreement. In the event any
fabrication and/or installation work mentioned in this
Paragraph 13 has been performed ; is being performed,
or will be performed by anyone other than employees
working for Employers in accordance with the provi-
sions of this Agreement , the Employer agrees to pay the
equivalent of wages and fringe benefits lost by
employees covered by this Agreement , as determined
by the Joint Arbitration Board or its Subcommittee,
into the Retirement Trust Fund of the Plumbing-
Heating and Piping Industry of Southern California
within ten ( 10) days of date of posting of the decision of
the Joint Arbitration Board. If two or more Contrac-
tors are involved on such work, the Joint Arbitration
Board shall decide which Contractor or Contractors are
liable and the amount of liability. The Joint Arbitration
Board shall determine the specified bid guide to be
used in determining damages by March 1, 1970. If such
determination is not made by March 1 , 1970, each
party shall submit a guide to 'an impartial arbitrator
who shall make the selection by April 1, 1970.
Section XV, paragraph 82, reads:
All pipe fabricated for speciality units, service
facilities, or heating or air conditioning equipment,
used in buildings , facilities or manufacturing establish-
ments, shall be fabricated and installed under the terms
of this agreement.
12. It is recognized by the parties hereto that it is
mutually desirable to have all of the above-listed work
performed by employees covered by this Agreement
and to that end they will utilize their best efforts to see
that this is done to the extent permissible by law. To
further this aim of protecting present work and
reclaiming work lost, the Contractor shall submit in
writing to the Union having jurisdiction, prior to
starting any job, the location of job where the contract
is in excess of $20,000.00. This notice shall include
information on any work or equipment covered by this
Agreement which is not included in the contract to the
best of the Contractor's knowledge and belief. In the
event any of the work or equipment covered by this
Agreement has not been awarded to a signatory
Contractor, a Contractor representative will accompa-
ny a representative of the Union to take the matter up
with the awarding authorities.
The above mentioned representatives shall meet with
the awarding authorities as soon as possible after
receipt of the aforementioned notice from the Contrac-
tor. The Union may refuse to permit employees on the
job site until such meeting has been held but not to
exceed a period of seven (7) working days after receipt
of the aforementioned notice.
13. (Effective April 1 , 1970). The Employer agrees
Section XV, paragraph 86, reads:
86. Whenever ' a Union Representative discovers
work being performed which he considers to be in
violation of this Agreement, the-procedure must be as
follows:
A. The Business Manager shall file a complaint in
writing, or by telephone with confirmation in writing
within forty-eight (48) hours, with the Joint Arbitration
Board by notifying the Employers Council and District
Council No . 16 that said Contractor is violating this
Section. Complaints arising under the Independent
Plumbing-Heating and Piping Agreement will be
handled by the Joint Arbitration Board or its Subcom-
mittee.
B. The Secretary of the Joint Arbitration Board
shall immediately send a telegram to the Contractor
concerned advising him that such a complaint has been
filed and instructing him, pending investigation, not to
proceed with the work in question.
C. The Joint Arbitration Board, or a Joint Sub-
committee thereof, shall immediately investigate said
complaint . In the event the Board , or the Subcommit-
tee, finds that the work in question is or is not in
violation of this Section , they shall so inform the
SOUTHERN CALIF. PIPE TRADES DIST. COUNCIL 16 709
Contractor and the complaining` Union, and shall
determine the corrective measures that must be taken
by the Contractor prior to the job continuing if the
contract has been- violated. In the event the Joint
Subcommittee or the Board are unable to agree within
seventy-two (72) hours from the time the complaint is
received, the work in question shall be permitted to
proceed pending-a final decision through the procedure
set forth in this Agreement. Said decision shall be final
and binding on all parties hereto if made by the Joint
Arbitration Board . Either party shall have the right to
appeal the decision of the Joint Subcommittee provided
such appeal is filed in writing, certified mail, return
receipt requested, within, five (5) days after receipt of
notification of the decision of the Joint Subcommittee.
If so ordered by the Joint Subcommittee, the work in
question must be stopped pending the decision of the
Joint Arbitration Board on an appeal from such Order,
in order to mitigate and prevent any increased damages
being assessed against the Employer if the appeal is not
sustained . and to further prevent any irreparable harm
and damage that may be suffered by employees
covered by this Agreement due to the violation by the
Contractor of this Section.
D. Failure to comply with the provisions of this
Section of the Agreement shall give the Joint Arbitra-
tion Board the right to require the offending Contractor
to fabricate all material on the job site , which is to be
installed in the area where the violation occurred, for a
period of time to be determined by the Joint Arbitra-
tion Board, and such other damages, or make any other
award against the Employer which it may deem
appropriate under the circumstances of the particular
case.