United Bro. of Carpenters, Loc. #112, AFL-CIO

National Labor Relations Board - Board Decisions

Nov 9, 1972

200 N.L.R.B. 205 (N.L.R.B. 1972)

UNITED BRO. OF CARPENTERS, LOC. #112, AFL-CIO
United Brotherhood of Carpenters & Joiners of
America, Local # 112, AFL-CIO and Silver Bow
Employers' Association and Butte Contractors'
Association . Cases 19-CC-497 and 19-CE-19
November 9, 1972
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On April 22, 1972, Trial Examiner Robert L. Piper
issued the attached Decision in this proceeding.
Thereafter, the General Counsel and the Charging
Parties filed exceptions and supporting briefs, and
the Respondent filed a brief in opposition.
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 and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the complaint be, and it hereby is, dismissed in
its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT L. PIPER, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act,
as amended, was heard at Butte, Montana, on December
14, 1971,1 pursuant to due notice. The complaint, which
was issued on October 15, upon a charge filed June 14 and
amended October 13, and another charge filed October 13,
alleged in substance that Respondent engaged in unfair
labor practices proscribed by Sections 8(b)(4)(i)(ii)(A) and
8(e) of the Act by engaging in a strike and by threatening,
coercing, and restraining persons engaged in commerce,
both with an object of forcing such persons to enter into an
agreement prohibited by Section 8(e), and by entering into
such an agreement with such persons. Respondent's
answer denied the alleged unfair labor practices. The
General Counsel, Respondent, and the Charging Parties
filed briefs.
Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
I All dates hereinafter refer to 1971 unless otherwise indicated.
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
205
Silver Bow Employers' Association (hereinafter called
Silver Bow) and Butte Contractors' Association (hereinaft-
er called Butte Contractors) are associations of construc-
tion contractors doing business in and around Butte,
Montana. Silver Bow and Butte Contractors perform
services for such contractor-members, including represent-
ing such members in matters of collective bargaining with
various labor organizations. The contractor-members of
Silver Bow and Butte Contractors annually have done a
total gross dollar volume of business in excess of $500,000,
and have purchased goods valued in excess of $50,000
directly from suppliers located outside the State of
Montana. Respondent admits, and I find, that Silver Bow
and Butte Contractors are employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent, United Brotherhood of Carpenters &
Joiners of America, Local # 112, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
Respondent, Silver Bow, and the individual members of
Butte Contractors were parties to a collective-bargaining
agreement which expired April 30. Prior thereto, the parties
entered into negotiations for a succeeding contract, during
which Respondent proposed a new work-preservation
provision. The parties having failed to reach agreement, on
May 17 Respondent struck the employer-members of
Silver Bow and Butte Contractors for such a work-
preservation provision. During the strike, negotiations
between the parties continued and they made various
proposals and counterproposals with respect to such a
provision. On August 20, the parties entered into an
agreement containing a work-preservation provision,
somewhat modified from Respondent's original proposal
as the result of the various proposals and counterproposals
during the strike. The work-preservation provision, fully
quoted hereinafter, prohibited the subcontracting of
certain specified work tasks required to be performed at
the site of construction unless done at the contractor's
shop.
The issues as framed by the pleadings are: (1) engaging
in, and inducing individuals employed by persons engaged
in commerce to engage in, a strike, and threatening,
coercing, and restraining persons engaged in commerce,
both with an object of forcing Silver Bow and Butte
Contractors to enter into an agreement prohibited by
Section 8(e); and (2) entering into a contract or agreement
whereby Silver Bow and Butte Contractors allegedly ,
agreed to cease and refrain from handling or dealing in the
products of other employers, specifically, prebuilt or
200 NLRB No. 42
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
modular homes, and to cease doing business with other ARTICLE XXII
persons, specifically, the manufacturers of such products.
B. Chronology of Events
CONTRACTING OR SUB-CONTRACTING OF WORK TO BE
DONE AT THE SITE OF CONSTRUCTION
The facts are substantially undisputed. During the latter
part of 1969 and 1970, Respondent became aware of the
availability of modular or prebuilt homes in the Butte
market. Modular or prebuilt homes are those manufac-
tured in a plant with substantially all of their construction
completed. They are shipped to a lot or building site in two
sections, where all that remains to be done is to "stitch" oi
bolt the two sections together, place the structure upon and
fasten it to a previously erected foundation, and connect
the utilities. Thus the only work to be performed at the
"site of construction" is the preliminary erection of
footings and/or foundation, and the bolting together of the
two sections and attachment to the foundation, plus the
connection of the necessary utilities. In contrast with such
modular homes, there are also available prefabricated or
precut homes, which consist of sections or parts manufac-
tured in a plant and delivered to a lot or building site. Such
homes are substantially erected upon the site from such
component parts. The record establishes that prior to the
events herein Respondent's members without objection
had performed the work of erecting such prefabricated or
precut homes because such tasks preserved a substantial
part of the unit work traditionally performed by such
employees. On the other hand, the installation of modular
homes by contractors substantially eliminated the jobsite
work traditionally performed by Respondent's members,
employees of the contractor-members of Silver Bow and
Butte Contractors.
On May 1, 1970, Respondent, Silver Bow, and the
individual members of Butte Contractors entered into a
collective-bargaining agreement which expired April 30.
This agreement contained no work-preservation clause. On
February 19, Respondent by letter advised Silver Bow that
Respondent wished to negotiate a contract to succeed the
contract due to expire April 30, and submitted several
proposals, including a new "preservation of work" provi-
sion to be added to the contract. Subsequently, beginning
March 23, the parties held various negotiation meetings. At
that first meeting Respondent did not delineate the specific
terms of the work-preservation provision it desired,
pointing out, however, that the introduction or use of
modular homes in the Butte area by the contractors would
eliminate substantial amounts of the work previously and
traditionally performed by its members. The parties met
again on May 3 and May 14. On the latter date,
Respondent presented to Silver Bow and Butte Contractors
a specific work-preservation provision consisting of an
article XXII, including four sections, to be added to the
prior contract. The work-preservation proposal was limited
to work to be performed at the site of construction and
proscribed the subcontracting of such work.
Inasmuch as sections 1, 2, and 4 of article XXII were
included not only in Respondent's first proposal but in
each subsequent proposal and included in the contract
finally agreed to, they are herewith quoted:
Section 1. Application.
The Employers are in the construction industry and
both parties have elected to come under the proviso
applicable to the construction industry contained in
Title 29, Section 158(e) of the United States Code as
amended.
Section 2. Scope of the Foregoing.
Sections 1 and 3 of this Article relate solely to
contracting or sub-contracting and [sic] work to be
done at the site of the construction , alteration or repair
of a building, structure or other work.
Section 4. Consistency with Federal Law.
All provisions of this Article shall be interpreted,
construed and applied in a legal manner consistent
with the laws of the United States and not in conflict
thereof.
Section 3 of Respondent's original proposal was:
Section 3. All of the following work shall be
performed at the site of construction , alteration,
painting or repairing of the building , structure or other
work and,shall not be sub -contracted:
(a) All wooden framing and wall assembling;
(b) All wooden partition assembly;
(c) All the metal partitioning and installation of
studs under the jurisdiction of this Union;
(d) All installation of wallboard;
(e) All cutting and installing trim work in the
structures;
(f) All window framing and assembly;
(g) The erection of all doors in the structures;
(h) All cutting and assembling of wooden
subfloors and floors;
(i) All sheeting and shingling on the roof of the
structure;
(j) Installation of all cabinets and laminated
coverings on cupboards;
(k) All form work for the installation of base-
ments and footings for basements;
(1) All cutting and installation of steps and
wooden bannisters.
During the negotiations, Silver Bow and Butte Contrac-
tors pointed out that section 3 would prevent their use of
modular homes in the Butte area , and Respondent
consistently maintained that it was not interested in
boycotting any product , including modular homes , wheth-
er union made or otherwise , but was only seeking to
preserve the work historically and traditionally done by its
member carpenters , employees of the contractor-members
of Silver Bow and Butte Contractors . Respondent also
made clear to Silver Bow and Butte Contractors that it had
no pride of authorship, was not insisting upon any
particular phraseology, and was willing to have any of its
proposed provisions rewritten or modified by Silver Bow
and Butte Contractors so long as the provision accom-
plished Respondent's ultimate objective, the preservation
of work previously and traditionally done by its members.
Silver Bow and Butte Contractors rejected Respondent's
UNITED BRO. OF CARPENTERS, LOC. # 112, AFL-CIO 207
work-preservation proposal and as a result on May 17
Respondent's members struck Silver Bow and Butte
Contractors in support of their demand for such a work-
preservation provision. Several additional negotiation
meetings ensued without success, each of the parties
maintaining the same position, i.e., Respondent that it
wanted such a provision in order to preserve the work of its
members, and Silver Bow and Butte Contractors contend-
ing that such a provision would prevent their use of
modular homes in the Butte area. Silver Bow and Butte
Contractors also argued that such a provision might even
prevent their use of certain prefabricated or precut items
which by past practice the parties had employed. In reply
Respondent stated that it was not its objective to roll back
the clock or prevent the use of any such prefabricated or
precut items which had been used under past practice, even
though such use had resulted in the loss of work previously
performed by the carpenters, but only to prevent further
erosion of their members' unit work by the subcontracting
of additional tasks currently and traditionally performed
by the carpenters.
Shortly before August 11 Respondent entered into a
contract with Golden West Estates, a Montana corpora-
tion not a member of Silver Bow or Butte Contractors,
providing for the installation of partially completed
modular or prebuilt homes in the Butte area, and
containing a work-preservation subcontracting provision
substantially similar to that proposed by Respondent on
May 14 to Silver Bow and Butte Contractors. The modular
homes to be installed by Golden West under that contract
were nonunion and factory built, and constituted what
amounted to the shell of a modular home, inasmuch as the
manufacturer agreed not to perform the work tasks which
under the contract work-preservation clause the parties
agreed should not be subcontracted but left for perform-
ance by Respondent's members on the building site, just as
Respondent had proposed to Silver Bow and Butte
Contractors. As a result of such contract on August 11
Respondent submitted to Silver Bow and Butte Contrac-
tors a modified work-preservation proposal consisting of
section 3(A) of article XXII modified to conform to the
work-preservation provision agreed to between Respon-
dent and Golden West Estates, and again including
sections 1, 2, and 4 unchanged. The modified proposal
eliminated the work tasks not to be subcontracted set forth
in subsections (a), (b), (c), (f), and (h) of the original
section 3 and added one additional work task not to be
subcontracted: "(9) the placing and fastening of all
components of the structure upon the foundation." In
addition, subsections (d), (e), and (g) were liberalized by
modification. Silver Bow and Butte Contractors rejected
this proposal and the strike continued.
On August 12 Silver Bow and Butte Contractors
submitted a counterproposal modifying paragraph (B) of
Respondent's proposed section 3 by the addition of a third
subsection thereto reading:
(B) Nothing herein shall apply to any structures in
the following situations: . . . (3) If the exclusive right
to control the type of structure erected at the site of
construction rests with a person , firm, or corporation
not a party to this agreement and who is not
economically allied with and [sic] Employer signatory
to this Agreement. Respondent rejected this counter-
proposal, pointing out that it would tend to emasculate
its objective of preserving the work traditionally
performed by the carpenters, and the strike continued.
After further negotiation meetings , on August 20 the
parties entered into an agreement, consisting of a modifica-
tion of their prior contract , containing an article XXII,
sections 1 through 4, with section 3(A) thereof further
liberalized and modified from Respondent 's first two
proposals.
Section 3(A) of article XXII as entered into by the
parties read as follows: 2
Section 3. (A) All of the following work shall be
performed at the site of construction, alteration, or
repairing of the building, structure or other work and
shall not be subcontracted [off the job site, unless said
work is done at the Employer's shop.]
(1) All the [erection ] of the forms for basements
and/or footings for the structures . [Nothing herein
shall be construed to apply to pre-built forms which
have, through past practice, been utilized by the
Employers.]
(2) The installation of [all exterior siding or finishing,
or, in the alternative ,] all wallboards and/or paneling.
(3) The installation of all [exterior trim on the
structure , or, in the alternative, all interior ] trim on the
structure.
(4) The installation of all interior doors on the
structure.
(5) The shingling of all roofs , whether wood, metal or
composition material.
(6) Installation of all cabinets and shelving.
(7) The cutting and installation of all wooden stairs
and/or bannisters.
(8) The installation of all form work for steps and/or
stoops. [Nothing herein shall preclude an Employer
from installing form work for steps and/or stoops after
any pre-built or pre-assembled structure has been
placed and fastened upon the foundation, so long as
said steps and/or stoops are not attached to that
structure and so long as the Employer does not work
on the structure itself.]
(9) The placing and fastening of all components of
the structure upon the foundation.
The parties further agreed that neither waived any rights,
legal or otherwise, during the pendency of any future
proceedings before the Board or any court by the
submission , rejection , or withdrawal of any of their
proposals during the negotiations, and that they would
abide by the terms of the contract during the pendency of
any such proceedings . The foregoing contract is the
agreement allegedly proscribed by Section 8(e) of the Act,
and the foregoing proposals and strike by Respondent,
plus its refusal of the counterproposal of Silver Bow and
Butte Contractors, is the conduct allegedly proscribed by
Section 8(b)(4)(i) and (ii)(A) of the Act, i.e., striking and
2 The bracketed portions represent the modifications of Respondent's
prior proposal.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercing persons engaged in commerce with an object to
forcing them to enter into an agreement prohibited by
Section 8(e).
The record establishes , from the testimony of four
representatives of modular home manufacturers , that such
manufacturers could supply to the contractor-members of
Silver Bow and Butte Contractors prebuilt or modular
homes with the work delineated in section 3(A) left undone
to be performed at the site of construction , although three
of them testified that they would not be interested for
economic reasons in furnishing such unfinished homes
unless they received orders for substantial numbers
thereof, which would economically justify altering their
then manufacturing procedures to eliminate such work to
permit it to be performed at the site of construction. On the
other hand, the manufacturer of the prebuilt homes
supplied Golden West Estates pursuant to its contract with
Respondent testified that his concern could and did
profitably supply such homes to the Butte market , and that
their cost to the purchaser was approximately $ 1,000 less
than a fully completed modular home. The record also
established that fully completed modular homes cost
approximately $500 to $ 1,000 less than a "stick -built"
home, one constructed on the site in the traditional
manner.
C. Concluding Findings
The complaint alleged that Respondent , by entering into
and maintaining the aforesaid agreement with Silver Bow
and Butte Contractors whereby they agreed to cease and
refrain from handling , using, selling , transporting, and
otherwise dealing in the products of other employers and
to cease doing business with other persons, engaged in
unfair labor practices proscribed by Section 8(e) of the
Act; and that Respondent , by its strike , contract proposals,
and rejection of the counterproposal of Silver Bow and
Butte Contractors , engaged in, and induced individuals
employed by persons engaged in commerce to engage in, a
strike or a refusal to perform services, and threatened,
coerced , and restrained persons engaged in commerce,
each with an object of forcing Silver Bow and Butte
Contractors to enter into an agreement prohibited by
Section 8(e) as proscribed by Section 8(b)(4)(i ) and (ii)(A)
of the Act.
Section 8(e) provides, inter alia:
(e) It shall be an unfair labor practice for any labor
organization and any employer to enter into any
contract or agreement, express or implied, whereby
such employer ceases or refrains or agrees to cease or
refrain from handling, using , selling, transporting or
otherwise dealing in any of the products of 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 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 ... .
Section 8(b)(4)(i) proscribes engaging in or inducing
employees to engage in a strike or refusal to perform any
services , and (ii) proscribes threatening , coercing, or
restraining any person engaged in commerce , in either case
with an object of: "(A) forcing or requiring any employer
or self-employed person to join any labor or employer
organization or to enter into any agreement which is
prohibited by Section 8(e)."
The position of the General Counsel and the Charging
Parties throughout was that Respondent was engaging in a
product boycott designed to prevent the use of modular
homes by Silver Bow and Butte Contractors, while the
position of Respondent throughout was that it was
concerned only with the preservation of unit work
traditionally and historically performed by its members,
carpenter employees of the contractors , that its contract
proposals and strike were designed only to achieve that
objective, and that the admitted effect upon the use of
modular homes by the contractors was only incidental to
such work-preservation objective . The record establishes
that the work tasks set forth in section 3(A) of article XXII
of the contract entered into were unit work tasks of the
type traditionally and historically performed by Respon-
dent's members. It is also clear that the use by the
contractor-members of Silver Bow and Butte Contractors
of fully completed modular homes for installation at the
site of construction would substantially eliminate most of
the work traditionally performed by carpenters at such site.
In addition to such work -preservation objective, Respon-
dent also contends that section 3(A) of article XXII comes
within the purview of the proviso to Section 8(e) permitting
such agreements in the construction industry relating to the
contracting or subcontracting of work to be done at the site
of the construction , as specifically provided in sections 1
and 2 of article XXII of the contract. Section 1 thereof
provided that the parties elected to come under the proviso
applicable to the construction industry contained in
Section 8(e), and section 2 provided that sections 1 and 3 of
said article relate solely to contracting or subcontracting of
work to be done at the site of the construction.
It must now be considered well settled that the
proscriptions of Section 8(b)(4)(B) and 8(e) prohibit
secondary objectives and do not encompass primary
objectives or disputes, e.g., the preservation of work or
union standards of employees vis-a-vis their own employer,
the primary employer.3 In National Woodwork, 4 the
Supreme Court, affirming the Board , in a case substantially
similar to that herein , found that where the objective of
such a contract, and of striking or other coercion of their
own employer to obtain such a contract , is preservation of
work traditionally performed by the employees, the activity
is primary, i.e., that of the employees vis -a-vis their own
employer, and thus is not proscribed by Section 8(e) or
8(b)(4)(B). The Court was construing a contract between
carpenters and their employers , allegedly in violation of
3 National Woodwork Manufacturers ' Association v N L.R B., 386 U.S.
612 (1967); Houston Insulation Contractors ' Association v. N L.R.B., 386 U.S
664 (1967), and Local 982, International Brotherhood of Teamsters (J. K
Barker Trucking Co.), 181 NLRB No 67 (1970)
4 Fn 3, supra
UNITED BRO. OF CARPENTERS, LOC. #112, AFL-CIO
Section 8(e), under which the employers had agreed that
the carpenters would not handle precut or premachined
doors on the jobsite. The Court stated, inter alia:
This Court accordingly refused to read §8(b)(4)(A)
[now 8(b)(4)(B) ] to ban traditional primary strikes and
picketing having an impact on neutral employers even
though the activity fell within its sweeping terms ....
Thus, however severe the impact of primary activity on
neutral employers, it was not thereby transformed into
activity with a secondary objective. (Citations omitted.)
Although the language of §8(e) is sweeping, it closely
tracks that of §8(bx4)(A), and just as the latter and its
successor §8(bX4)(B) did not reach employees' activity
to pressure their employer to preserve for themselves
work traditionally done by them, §8(e) does not
prohibit agreements made and maintained for that
purpose.
* * *
However, provisos were added to §8(e) to preserve
the status quo in the construction industry, and exempt
the garment industry from the prohibitions of §§8(e)
and 8(b)(4)(B). This action of the Congress is strong
confirmation that Congress meant that both §§8(e) and
8(b)(4)(B) reach only secondary pressures .... Simi-
larly, the construction industry proviso, which permits
"hot cargo" agreements only for job-site work, would
have the curious and unsupported result of allowing the
construction worker to make agreements preserving his
traditional tasks against job-site prefabrication and
subcontracting, but not against nonjob-site prefabrica-
tion and subcontracting. On the other hand, if the heart
of §8(e) is construed to be directed only to secondary
activities, the construction proviso becomes, as it was
intended to be, a measure designed to allow agreements
pertaining to certain secondary activities on the
construction site because of the close community of
interests there, but to ban secondary-objective agree-
ments concerning nonjob-site work, in which respect
the construction industry is no different from any
other. The provisos are therefore substantial probative
support that primary work preservation agreements
were not to be within the ban of §8(e).
* * * *
Before we may say that Congress meant to strike
from workers' hands the economic weapons tradition-
ally used against their employers' efforts to abolish
their jobs, that meaning should plainly appear. "[I]n
this era of automation and onrushing technological
change, no problems in the domestic economy are of
greater concern than those involving job security and
employment stability. Because of the potentially cruel
impact upon the lives and fortunes of the working men
and women of the Nation, these problems have
understandably engaged the solicitous attention of
government, of responsible private business, and
particularly of organized labor."
209
The Woodwork Manufacturers Association and
amici who support its position advance several reasons,
grounded in economic and technological factors, why
"will not handle" clauses should be invalid in all
circumstances. Those arguments are addressed to the
wrong branch of government. It may be "that the time
has come for re-evaluation of the basic content of
collective bargaining as contemplated by the federal
legislation. But that is for Congress. Congress has
demonstrated its capacity to adjust the Nation's labor
legislation to what, in its legislative judgment, consti-
tutes the statutory pattern appropriate to the develop-
ing state of labor relations in the country ... .
The determination whether the "will not handle"
sentence of Rule 17 and its enforcement violated § 8(e)
and §8(b)(4)(B) cannot be made without an inquiry
into whether, under all the surrounding circumstances,
the Union's objective was preservation of work for
Frouge's employees, or whether the agreements and
boycott were tactically calculated to satisfy union
objectives elsewhere .... The touchstone is whether
the agreement or its maintenance is addressed to the
labor relations of the contracting employer vis-a-vis his
own employees.. . . The finding of the Trial Examiner,
adopted by the Board, was that the objective of the
sentence was preservation of work traditionally per-
formed by the job-site carpenters. This finding is
supported by substantial evidence, and therefore the
Union's making of the "will not handle" agreement was
not a violation of §8(e).
Similarly, the Union's maintenance of the provision
was not a violation of §8(b)(4)(B). The Union refused
to hang prefabricated doors whether or not they bore a
union label, and even refused to install prefabricated
doors manufactured off the jobsite by members of the
Union. This and other substantial evidence supported
the finding that the conduct of the Union on the
Frouge jobsite related solely to preservation of the
traditional tasks of the job-site carpenters.
The record establishes and I find that the work tasks set
forth in section 3(A) of article XXII, to be performed at the
site of the construction and not be subcontracted,
constituted work currently, traditionally, and historically
performed by Respondent's members, that Respondent's
objective in seeking such contractual provisions and
striking to obtain them was solely to preserve the work
traditionally performed by its members, and that their
effect upon the use by the contractor-members of modular
homes, whether union built or otherwise, was purely
incidental. Respondent's objective was further corroborat-
ed by the fact that it entered into a contract with another
contractor, permitting the use of nonunion factory built
prefabricated homes, upon the condition that the work,
substantially the same as that herein, traditionally per-
formed by its members be reserved for them at the site of
construction.
The fact that Respondent was willing to modify its
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
original proposal to liberalize it in several respects, so long
as its objective of work preservation was retained,
demonstrated Respondent's good faith in seeking only
work preservation as distinguished from tactical objectives
elsewhere, including product boycotts. The fact that
Respondent struck to secure its demands for a work-
preservation provision not in violation of Section 8(e) does
not constitute a violation of Section 8(b)(4)(i) or (ii)(A) of
the Act. Patently, if a contract is one not proscribed by
Section 8(e), striking to obtain such a contract does not fall
within the provisions prohibiting striking or coercion with
an object of requiring an employer to enter into a
agreement prohibited by Section 8(e).5 As hereinabove
found, the contract between the parties provided that
section 3(A) related solely to contracting or subcontracting
of work to be done at the site of the construction and that
the parties had elected to come under the proviso to
Section 8(e) applicable to the construction industry. If the
work-preservation provisions were primary and not in
violation of the body of Section 8(e), as hereinabove found,
a fortiori such provisions would be valid under the proviso
excepting agreements 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.
The contention that Respondent violated Section
8(b)(4)(i) and (ii)(A) by refusing to accede to Silver Bow's
and Butte Contractors' counterproposal exempting from
section 3(A) structures over which the contractor-members
did not have the "right to control" is without merit. While
the Board has held that, although refusal-to-handle types
of contracts are not in violation of Section 8(e) because of
primary work preservation, enforcing or attempting to
enforce such contracts against employers who do not have
the "right to control" the contractual work assignment
because the use of a prefabricated product was specified by
the owner or builder is a violation of Section 8(b)(4)(B)
because of such lack of control,6 such a situation does not
exist herein and would only when and if Respondent
sought to enforce section 3(A) against a particular
contractor who did not have the "right to control" the
contractual work to be performed at the site of construc-
tion because of such owner specifications. There is no
evidence in the record that Respondent has sought to
enforce section 3(A) of the contract under such circum-
5 Los Angeles Building and Construction Trades Council (Church's Fried
Chicken, Inc), 183 NLRB No. 102 (1970).
6 Local 636, Plumbers and Pepefitters (Mechanical Contractors' Association
of Detroit), 177 NLRB 189 (1969)
7 At least four courts of appeals have disagreed with the Board's right-to-
control test under such circumstances. the First Circuit, the Third Circuit,
the Eighth Circuit, and the D. C. Circuit
stances. When and if Respondent does so, the legal rights
of Silver Bow and Butte Contractors would be protected by
the Board and such a provision is superfluous with respect
to such rights. Moreover, by agreeing to such counterpro-
posal, Respondent would have waived its legal right to seek
Board and court interpretation of the contractual work-
preservation provision vis-a-vis a contractor who did not
have such "right to control," which as yet has not been
passed upon by the Supreme Court,7 thereby also waiving
a potentially substantial segment of traditional work which
Respondent desired to preserve for its members. Clearly
Respondent was not legally required to waive such rights
merely because conduct which they might engage in in the
future might ultimately be found to be in violation of the
Act.
A preponderance of the reliable, probative, and substan-
tial evidence in the entire record convinces me, and I find,
that Respondent, by the above-found requests or demands
for contractual work-preservation provisions, by striking to
secure such contract provisions, and by entering into a
contract containing such provisions, engaged in primary
activity which was not in violation of Section 8(e) or
8(b)(4)(i) or (ii)(A) of the Act as alleged in the complaint.
Upon the basis of the foregoing findings of fact and the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Silver Bow and Butte Contractors are employers
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has not, as alleged in the complaint,
engaged in unfair labor practices proscribed by Section
8(e) or 8(b)(4)(i) or (ii)(A) of the Act.
Upon the foregoing findings of fact, conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 8
ORDER
IT IS HEREBY ORDERED that the complaint herein be, and
it hereby is, dismissed in its entirety.
8 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and order, and all objections thereto shall be
deemed waived for all purposes