United Assn. Pipe Fitters Local 455

National Labor Relations Board - Board Decisions

Sep 27, 1967

167 N.L.R.B. 602 (N.L.R.B. 1967)

602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Association Pipe Fitters Local Union No. 455
and United Association Plumbers & Gasfitters
Local Union No. 34, both affiliated with the United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL-CIO, and St. Paul As-
sociation of Plumbing, Heating and Mechanical
Contractors, Inc., et al . and United Association
Pipe Fitters Local Union No. 455 and United As-
sociation Plumbers & Gasfitters Local Union No.
34, both affiliated with the United Association of
Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and
Canada , AFL-CIO, and Upper Midwest Piping,
Incorporated and United Association Pipe Fitters
Local Union No . 455, affiliated with the United As-
sociation of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada , AFL-CIO (D. W. Hickey Co.,
Inc., and Minnesota Mining & Manufacturing
Company) and American Boiler Manufacturers
Association . Cases 18-CE-4, 18-CE-6, and
18-CC-143
September 27, 1967
SUPPLEMENTAL DECISION AND ORDER
On August 5, 1965, the National Labor Rela-
tions Board issued a Decision and Order in the
above-entitled proceeding,' finding, inter alia, that
(1) no issue was presented concerning the legality,
under Section 8(e) of the National Labor Relations
Act, as amended, of the fabrication clause in the
1963 collective-bargaining agreements between
Respondent Local Union No. 455 and Respondent
Employers because the General Counsel had not al-
leged in the complaint, nor urged at the hearing, that
this clause was per se unlawful; (2) certain ad hoc
agreements entered into between Local Union No.
455 and various Respondent Employers construing,
interpreting, and applying the fabrication clause
were not violative of Section 8(e) of the Act; (3) the
conduct of Local Union No. 455 in connection with
these ad hoc agreements was not violative of Sec-
tion 8(b)(4)(A); and (4) Local Union No. 455 vio-
lated Section 8(b)(4)(ii)(B) by its conduct on one
project, but did not violate Section 8(b)(4)(B) in any
other respect. 2
On October 6, 1966, the United States Court
of Appeals for the Eighth Circuit issued its opinion 3
in which it affirmed the Board's findings of
8(b)(4)(ii)(B) violations at the one project, but
vacated and set aside the Board's findings that there
were no 8(e) or 8(b)(4)(A) violations and that the
Respondent Union did not violate Section
8(b)(4)(ii)(B) by its conduct in the Pierre Aircon
Company incident. The court remanded the case to
1 154 N LRB 285, Member Fanning concurring in part, Member Brown
dissenting in part
the Board with directions to determine the legality
of the fabrication clause , an issue which the court
held had been fully litigated ; to reexamine, in the
light of such determination, the issues appealed to
the court by the Charging Party; and for further
proceedings consistent with the views expressed in
the court ' s opinion . In connection with the issues
remanded , the court noted in its opinion that "Cer-
tiorari has been granted in National Woodwork
Mfrs. Ass'n , supra, 384 U. S. 968 , and helpful
guidelines from the Supreme Court upon the
troublesome issues here presented may reasonably
be anticipated."
The Board has reconsidered its original Decision
and Order with respect to the issues remanded in
the light of the opinion of the court of appeals and
the opinion of the Supreme Court in National
Woodwork Manufacturers Association et al. v.
N.L.R.B., 386 U. S. 612. The Supreme Court in that
case held that "just as ... Section 8(b)(4)(B) did not
reach employees ' activity to pressure their em-
ployer to preserve for themselves work traditionally
done by them, Section 8 (e) does not prohibit agree-
ments made and maintained for that purpose." The
Supreme Court accordingly found the "will not han-
dle" clause in a contract between the Carpenters
Union and employer Frouge not violative of Sec-
tion 8 (e), and the refusal of that union to permit car-
penters employed by Frouge to handle prefitted
doors manufactured by the charging party not viola-
tive of Section 8(b)(4)(B ), and stated in its opinion
that the determination whether such a clause and its
enforcement violated those sections-
... cannot be made without an inquiry into
whether under all the surrounding circum-
stances, the Union ' s objective was preserva-
tion of work for Frouge 's employees, or
whether the agreements and boycott were tac-
tically calculated to satisfy union objectives
elsewhere . Were the latter the case , Frouge,
the boycotting employer , would be a neutral
bystander , and the agreement or boycott
would, within the intent of Congress , become
secondary . There need not be an actual dispute
with the boycotted employer , here the door
manufacturer , for the activity to fall within this
category , so long as the tactical object of the
agreement and its maintenance is that em-
ployer , or benefits to other than the boycotting
employees or other employees of the primary
employer thus making the agreement or
boycott secondary in its aim. The touchstone
is whether the agreement or its maintenance is
addressed to the labor relations of the contract-
ing employer vis-a-vis his own employees.
[Footnotes omitted. ]
The Supreme Court indicated that the circum-
stances to be considered , in determining the union's
' No review was sought of the Board's disposition of other issues
S 366 F 2d815
167 NLRB No. 79
UNITED ASSN. PIPE FITTERS LOCAL 455
objective, might include the remoteness of the
threat of displacement by the banned product or
services, the history of labor relations between the
union and the employers who would be boycotted,
and the economic personality of the industry.
The Supreme Court, in a companion case issued
the same day, 4 summarized its holding in National
Woodwork as follows:
National Woodwork Mfgrs., ante, holds that
collective activity by employees of the primary
employer, the object of which is to affect the
labor policies of that primary employer, and
not engaged in for its effect elsewhere, is pro-
tected primary activity.
With these Supreme Court rulings in mind, we
turn to the issues remanded herein.
1. THE FABRICATION CLAUSE
This clause, as incorporated in the 1963 agree-
ment between Local Union No. 455 and the Con-
tractors Association, provided as follows:
As a primary working condition, it is agreed
that all pipe formations, systems, or controls,
or component parts thereof, included within
the nonpurchase list attached hereto and made
a part hereof as Exhibit 1, as amended from
time to time as provided in this agreement,
shall be fabricated on the job site or in the shop
of an Employer within the bargaining unit who
is bound by this agreement, except as other-
wise mutually agreed upon with relation to any
particular job.
The agreement also established a fabrication com-
mittee, composed of representatives of Local
Union No. 455 and the Contractors Association, to
apply, interpret, and enforce the fabrication clause.
As directed by the court of appeals, we have con-
sidered this clause on the basis of the entire record
herein and in the light of the guidelines established
by the Supreme Court, and find that the clause was
not violative of Section 8(e) of the Act as its object
was to preserve for employees in the unit work
traditionally done by such employees, who are
represented by Local Union No. 455, not for mem-
bers of the Union generally nor to satisfy union ob-
jectives elsewhere. The clause, as set forth above,
provided, "As a primary working condition," that
the fabrication work of attaching trim piping was to
be done "on the job site or in the shop of an Em-
ployer within the bargaining unit who is bound by
this agreement." The clause therefore applied only
to work performed by employees of employers who
were in the contractual multiemployer unit, and em-
ployees whose employers had agreed to this clause
in their individual contracts with Local Union No.
455. Moreover, the record establishes that the work
' Houston Insulation Contractors Association v N L R B, 386 U S
664
The fact that the fabrication clause might be read as contemplating
603
of attaching trim piping to boilers had traditionally
been performed by employees in such units
represented by Local Union No. 455; that the ad-
vent of packaged boilers had a direct impact on the
amount of such work available to them; and that the
Union's sole objective in obtaining agreement to the
fabrication clause was to preserve and to reacquire
such work for the unit employees of the contracting
employers. It is apparent, therefore, under the tests
laid down by the Supreme Court, that the clause
met the "touchstone" of being "addressed to the
labor relations of the contracting employer vis-a-vis
his own employees," and that the evidence does not
show that the "tactical object" of the clause was the
packaged-boiler manufacturers or any other second-
ary employers. Accordingly, we conclude that the
fabrication clause was a primary work-preservation
clause, and therefore outside the scope of Section
8(e) of the Act. 5
II. THE AD HOC AGREEMENTS APPLYING THE
FABRICATION CLAUSE
A. The 3-M Incident
Minnesota Mining and Manufacturing Company,
herein called 3-M, ordered three packaged boilers
from the manufacturer, and engaged D. W. Hickey
Co., Inc., a member of the Contractors Association,
to install the boilers in a building which 3-M was
remodeling. Thereafter, Mooney, a business
representative of Local Union No. 455, informed
Hickey and 3-M, in effect, that the packaged
boilers were a violation of the fabrication clause and
his men would not install them. On August 27,
1963, the members of the fabrication committee,
established to carry out the terms of the fabrication
clause, agreed that Hickey's contract with 3-M to
install the packaged boilers was a violation of the
fabrication clause and work on this building would
cease unless the packaged-boiler problem was
resolved.
1. The alleged violation of Section 8(e)
As the Board found in its original Decision, the
members of the fabrication committee on August
27 entered into a new ad hoc agreement to which
Local Union No. 455, the Contractors Association,
and Hickey (by virtue of its membership in the As-
sociation) were parties, to the effect that the instal-
lation of the packaged boilers in this building was
prohibited by the fabrication clause. We have found
above that the fabrication clause was a lawful
clause designed to preserve and reacquire trim-pip-
ing work traditionally performed by employees in
the Contractors Association unit. To the extent that
that trim-piping work could be performed by unit employees in the shop of
a signatory employer does not change its primary nature See Houston In-
miatton, supra
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the ad hoc agreement had the same lawful object as
the fabrication clause, it was, under the guidelines
established by the Supreme Court, a primary work-
preservation agreement outside the scope of Sec-
tion 8(e). We note, however, that neither the Con-
tractors Association nor any of its members, includ-
ing Hickey, which contracted merely to install
packaged boilers ordered by 3-M, was in a position
to assign the trim-piping work at this project. Even
if, in these circumstances, the Contractors Associa-
tion and Hickey were regarded as secondary em-
ployers, and the August 27 ad hoc agreement as a
"hot goods" agreement within the scope of Section
8(e), because these employers had no control over
the assignment of the work,6 we would find,
nevertheless, that as the trim-piping work in dispute
was to be performed at the site of the construction,
the August 27 agreement was protected by the con-
struction industry proviso to Section 8(e), and was
therefore lawful.
2. The alleged violation of Section 8(b)(4)(A)
In view of our finding that the August 27 ad hoc
agreement was not prohibited by Section 8(e), we
affirm the finding in our original Decision that
Local Union No. 455 did not violate Section
8(b)(4)(A) by this conduct.7
B. The Pierre Aircon Incident
The fabrication committee required Pierre Air-
con Company, on October 22, 1963, to pay $100
for violating the fabrication clause by "entering into
a contract ... with the Deluxe Check Company for
the installation of a ... boiler [which] arrived with
the trim on." Pierre Aircon Company paid the $100
and installed the packaged boiler in the Deluxe
Check Building.
piping work traditionally performed by employees
in the unit. The ad hoc agreement of October 22
was therefore an interpretation and application of
a lawful clause, and had the same lawful objective.
Pierre Aircon Company was a signatory to the 1963
contract, its employees were in the Contractors As-
sociation unit, and, as members of Local Union No.
455, had traditionally performed trim-piping work.
We therefore find that the October 22 ad hoc
agreement was a primary work preservation agree-
ment outside the scope of Section 8(e).8
2. The alleged violation of Section 8(b)(4)(ii)(A)
As we have found that the October 22 agreement
was lawful, and as there is no evidence that Local
Union No. 455 sought any agreement other than
the one reached, we find that its conduct in securing
this ad hoc agreement was not violative of Section
8(b)(4)(ii)(A).
3. The alleged violation of Section 8(b)(4)(ii)(B)
The Board in its original Decision found that the
fabrication committee's requirement of reasonable
compensation by Pierre Aircon Company for its
breach of contract constituted a peaceful method of
resolving this dispute, and, therefore, that Local
Union No. 455 did not threaten, coerce, or restrain
employers by its conduct in connection with this
project within the meaning of Section 8(b)(4)(ii). We
have again considered this matter and are of the
same view. Moreover, even if the fine were con-
sidered coercive, it was directed toward Pierre Air-
con, which was the primary employer as far as the
record shows, and was for the purpose of preserv-
ing unit work. It therefore was not prohibited by
Section 8(b)(4)(B).
C. The Upper Midwest Piping Incident
1. The alleged violation of Section 8(e)
As the original Board Decision found, the fabri-
cation committee's action on October 22 con-
stituted the entering into of a new ad hoc agreement
between Local Union No. 455 and the Contractors
Association (of which Pierre Aircon Company was
a member) to the effect that the installation of the
packaged boiler at this site constituted a violation
of the fabrication clause.
We have found above that the object of the fabri-
cation clause was to preserve and reacquire trim-
6 Three-M, which ordered the packaged boilers, is not a member of the
Contractors Association, was not named in the complaint as a respondent,
and no agreement between it and Local Union No 455 is alleged as a
violation of Sec 8(e) In its decision in National Woodwork, supra, fn 15,
the Supreme Court stated that the Board's "right of control" test was not
before the Court in that case
' See Northeastern Indiana Building and Construction Trades Council
(Centlivre Village Apartments), 148 NLRB 854, reversed and remanded
on other grounds 352 F 2d 696 (C A D C )
Upper Midwest Piping, Incorporated, a member
of Mechanical Contractors Association of Min-
neapolis, Inc., had a collective-bargaining agree-
ment with Local Union No. 539, a sister local of
Local Union No. 455, which agreement contained
a fabrication clause similar to the one in the Local
Union No. 455 agreement. Although both the Min-
neapolis and St. Paul agreements contained recipro-
cal clauses covering employer-members working in
either area, when Upper Midwest Piping obtained
a contract to install two packaged boilers in a school
in St. Paul, it signed the Local Union No. 455
" Unlike the 3-M incident, the record does not show who ordered the
packaged boiler to be installed at this project The evidence therefore does
not establish that Pierre Aircon had no control over the work, and there-
fore was a secondary employer See fn 6, supra In these circumstances,
we find it unnecessary to deal with the alternative finding, in the Board's
original Decision , that this ad hoc agreement , to the extent that it fell
within the scope of Sec 8(e), was protected by the construction industry
proviso thereto
UNITED ASSN. PIPE FITTERS LOCAL 455 605
agreement. On September 9, 1963, Upper Midwest
Piping ordered two boilers of the type specified in
its contract through Heinen Company, the manu-
facturer's agent in St. Paul. Early in October, Busi-
ness Representative Mooney told Sorensen, vice
president of Upper Midwest Piping, that, under the
fabrication clause, "the trim piping and the gas
train, etc. shouldn't be on these boilers when they
came in," and that it was "our work." Mooney
testified as to this conversation that: "Mr. Sorensen
isn't the kind of man that you have to come up with
a threat.... Merely a matter of explaining to him
what the labor agreement was all about." Shortly
after this conversation, Sorensen instructed Heinen
not to deliver the boilers at the jobsite with the trim
piping attached. Although Heinen passed Soren-
sen's instruction along to the manufacturer, the
boilers were delivered in packaged form and were
being installed at the time of the hearing by Upper
Midwest Piping employees who were members of
Local Union No. 539.
1. The alleged 8(e) violation
In its original Decision, the Board found it un-
necessary to determine whether Local Union No.
455 and Upper Midwest Piping, by the above con-
duct, entered into an ad hoc agreement interpreting
the fabrication clause, because such agreement
would, in any event, be protected by the construc-
tion industry proviso to Section 8(e) of the Act.9
However, the Supreme Court held in Houston In-
sulation, supra, that a union's conduct toward a pri-
mary employer does not become secondary
because such conduct is for the benefit of em-
ployees represented by a sister local. We find,
therefore, on reconsideration of this matter, that it
is not necessary to consider the impact of the con-
struction industry proviso because any agreement
that might have been entered into would have been
primary. As Upper Midwest Piping was signatory
to contracts with both locals, the fabrication clauses
in both were substantially identical, and the object
of both was the preservation of traditional unit
work,10 Upper Midwest Piping was the primary em-
ployer, whether Local Union No. 455's object was
the Company's labor relations with members of
Local Union No. 455 or of those of its sister
Local Union No. 539.
2. The alleged 8(b)(4)(ii)(A) violation
As the ad hoc agreement, if any, would not have
been unlawful, we find that the conduct of Local
Union No. 455 to achieve such an agreement was
not violative of Section 8(b)(4)(ii)(A).
ORDER
Accordingly, we conclude, upon reconsideration
of all the issues remanded by the court of appeals,
that the fabrication clause was lawful, and that the
Board's original dismissal of the complaint with re-
gard to the other issues remanded should be, and
hereby is, affirmed.
' See also fn 16 of the Board's original Decision and Order
10 See the Board's finding with regard to the fabrication clause in the
Local Union No 539 contract in the companion case, United Association
Pipe Fitters Local Union No 539, et al (American Boiler Manufacturers
Association), 167 NLRB 606