Local 636, Plumbing and Pipe Fitting Industry

LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 225 not represent a majority of the employees ; by trailing, ambushing, and stoning employees of the Company ; and by threatening employees of the Company and other employers , thereby restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Local, and Jimmy Ray Rush, Sam Dixon, Jr., Windol Atchison, and James Mitchell , as agents of the Local, have jointly and severally engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Local No. 636 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, and its Business Agent Tim McCarthy and its President William B. Kelley and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO and The Detroit Edison Company and Westinghouse Electric Corporation . Case No. 7-CC-55. March 16, 1959 DECISION AND ORDER On October 3, 1957, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. He also found that the Re- spondents had not engaged in and were not engaging in the other unfair labor practices alleged in the complaint and recommended their dismissal. Thereafter, the Respondents, the General Counsel, and the Charging Parties filed exceptions to the Intermediate Report and supporting briefs, and orally argued this case before the Board. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report,'- the exceptions and briefs, the oral argument, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifications. i The following inadvertency appearing in the Intermediate Report, which does not affect the Trial Examiner 's findings and conclusions, nor our concurrence therein, is corrected as follows : p. 250, line 10, the date of May 27, 1956, is corrected to read May 27, 1957. 123 NLRB No. 37. 508 889-60-vol. 123-16 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. The amended complaint charged that Respondents, sometimes referred to as the UA, violated Section 8 (b) (4) (A) by engaging in, and inducing or encouraging employees of United Engineers and other employers at Edison's construction projects in River Rouge, .St. Clair, and Monroe, Michigan, to engage in, a strike or concerted refusal in the course of their employment to handle certain materials for objects proscribed by the Act. The forbidden objects, as alleged, were to force United Engineers and other employers to cease doing business with Westinghouse or any employer which fabricated pipe in off-site plants with employees who were not UA members, and to force United Engineers and other employers to cease doing business with Edison. The Trial Examiner found that Respondents, through Kelley, the president of Respondent Local 636, unlawfully induced or encouraged Stolliker, Morgan, and other pipefitters employed by United Engineers at River Rouge to refrain from erecting Westing- house pipe because it was not fabricated by UA members. He also found that Respondents induced or encouraged these pipefitters to cease work in order to force Edison to award contracts for prefab- ricated piping only to those suppliers who employed members of Respondent Unions. In their exceptions, Respondents contend that the conduct attrib- uted to Kelly did not constitute inducement or encouragement. They further contend that any inducement or encouragement of Stolliker :and Morgan to cease handling Westinghouse pipe was privileged be- -cause these individuals were not employees within the meaning of the Act. . United Engineers is a labor contractor which constructs power generating plants on a cost-plus basis. Its sole product is the supply of skilled manpower and supervision. At all times pertinent to this proceeding, Respondents and United Engineers were parties to a National Construction Agreement which contained certain "fabrica- tion" clauses. These provided that all piping installed by United Engineers had to be handled, assembled, and erected by UA mem- bers; that all piping over 21/2 inches in diameter which was pre- fabricated (i.e., cut, bent, and assembled) off the site had to be pre- fabricated in shops which employed UA members; and, that the Respondents reserved the right to refuse to handle prefabricated piping upon which their members had not worked. The enforce- ment of these clauses was implemented by the constitution and bylaws of the UA which imposed upon each member the duty, on pain of certain sanctions, "to make it generally known to the entire membership ... that all piping . . . fabricated and processed in a plant ... away from the job site shall be prepared by only members" of the UA. LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 227 In 1956 Edison embarked upon an expansion program which con- templated the erection of additional power units at River Rouge, St. Clair, and Monroe, and awarded contracts to United Engineers to furnish the labor for erecting the turbine generators at each location. Edison maintains a policy of purchasing all materials directly from the manufacturers for the construction of its plants. It lets con- tracts to suppliers who offer the lowest price for the product without regard to the union affiliation of the suppliers' employees. Westing- house, whose employees belong to a union other than the UA, was awarded a contract by Edison to supply the turbine generator for a unit at River Rouge, where the instant dispute arose. A second con- tract was obtained by Westinghouse to provide another generator for the St. Clair project. Allis-Chalmers, whose employees are also members of a. union not affiliated with the UA, has a contract to supply a generator for Edison's Monroe project. Under the terms of the first Westinghouse agreement, that Company was obligated to furnish a prepackaged turbine generator containing prefabricated piping with diameters in excess of 21/2 inches. This unit was as- sembled by Westinghouse employees at its Philadelphia plant and was due to arrive at River Rouge on January 21, 1957. In the fall of 1956, UA pipefitters employed by United Engineers were already engaged in installing pipe at River Rouge. During that period, Repondents twice complained to United Engineers con- cerning Edison's purchase of piping for the River Rouge and St. Clair projects which was not prefabricated by UA members. In each case, the Respondents refused to install piping supplied by the Crane Company and the Clement Electric Company because their employees did not belong to the Respondent Unions. When the Westinghouse equipment arrived at River Rouge on January 21, Kelley was so notified. He in turn notified his business manager. The following day, United Engineers was informed that, on orders from Respondent International, UA pipefitters on the proj- ect would not handle the piping because Westinghouse did not em- ploy UA members. On the same day, Kelley was asked by a repre- sentative of Westinghouse why the piping had not been unloaded and taken to the turbine room for installation. Kelley replied by reading to him the "fabrication" clauses in the agreement between UA and United Engineers. Kelly then stated that the members of Respondent Local 636 had discussed the matter of prefabricated piping at a union meeting just prior to the receipt of the Westing- house material. On January 24, Respondent International and United Engineers met and discussed the use of prefabricated piping on Edison's projects. After informing United Engineers that it had violated the National Construction Agreement by receiving Westing- 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD house pipe at River Rouge, the International stated that its major concern was the St. Clair project where Edison had invited bids from companies which did not have a contract with the UA. The meeting terminated when United Engineers replied that it had no control over Edison's purchasing policies and could not require that Edison buy prefabricated piping only from suppliers who hired UA men. From January 21 to 28, UA pipefitters at River Rouge were at work installing various piping which was part of the Westinghouse turbine. When the men ceased work on this pipe on January 28, the Westinghouse representative asked Stolliker for the reason. Stolliker was employed by United Engineers in the turbine room, along with a crew of pipefitters, and bore the title of turbine room foreman. Stolliker replied that he had received word from his Union "not to work on any more Westinghouse equipment until this difficulty with the piping was settled." From January 28 to March 12, United Engineers unsuccessfully attempted, at the behest of the UA, to persuade Edison to tailor its purchasing policies to conform to the "fabrication" clauses in the National Construction Agreement. During the same period, United Engineers failed to persuade Re- spondents to authorize their members at River Rouge to erect the Westinghouse piping. Events came to a head on March 12 when Dallam, general super- intendent for United Engineers at River Rouge, instructed Kelley to order his pipefitters to install Westinghouse pipe. In addition to being president of Local 636, Kelley was also general piping foreman for United Engineers. After conferring with Respondent Unions and learning that no agreement had been reached concerning the use of Westinghouse pipe or a change in Edison's purchasing policies, Kelley told Dallam that the pipe would not be erected until such an agreement had been worked out. Dallam then proceeded to Kelley's office. Present were Kelley, Morgan, and Stolliker. Like Stolliker, Morgan bore the title of foreman and worked in the receiving yard. Dallam instructed Morgan to move the Westing- house piping from the yard into the turbine room. Morgan replied that he would do so only if the piping was broken down and refab- ricated on the site and only if he was instructed by the UA. Dallam then asked Stolliker to install the pipe. Stolliker also declined, stating that it was Westinghouse pipe and that he would install it if the UA so order him. Kelley, who remained silent during this questioning, cautioned both men, after they had replied to Dallam, not to assign any reason for refusing to work but merely to say that they would handle the pipe in the near future. The next day, Dal- lam visited some 80 pipefitters at the project in the company of Kelley. When Dallam asked the men whether they would install LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 229 the pipe, each replied that they would do so only if instructed by the UA. One mentioned that it would be contrary to the "fabrication" clauses in the National Construction Agreement. Kelley again re- mained silent. The pipefitters did not commence handling this piping until May 10, 1957, when, during the course of Section 10(1) injunction proceedings in the Federal District Court, the UA gave the order which authorized them to do so. The Respondents challenge the Trial Examiner's findings that Kelley unlawfully induced or encouraged United Engineers' pipe- fitters on March 12 and 13, 1957. They contend that Kelley' s silence when the pipefitters were asked and refused to handle the Westing- house pipe cannot be translated into inducement or encouragement in the statutory sense. We do not agree. The subject of handling prefabricated piping made by non-UA members was a topic of dis- cussion among the members of Local 636 just prior to the receipt of the Westinghouse pipe at River Rouge. Strict sanctions were im- posed by the constitution and bylaws of the UA on members who failed to make it known to the membership generally that piping which was prefabricated off the site had to be prepared by UA mem- bers. When the Westinghouse equipment did arrive on the project, Respondent International issued the order to the Local's business manager and Kelley that no work be done on it. The reason for the order was made abundantly plain-the piping had been assembled by Westinghouse employees and the UA did not want Edison to purchase or United Engineers to erect any piping which did not satisfy the terms of the "fabrication" clauses. However, these orders did not expend their force solely on the business manager and Kelley. Stolliker had been instructed by Respondent Unions, as early as January 28, that he was not to work on the piping until the "diffi- culty" over it had been "settled." On March 12, both Stolliker and Morgan were reminded of the UA's attitude toward the Westing- house equipment by Kelley who instructed them not to give any reason to Dallam for refusing to handle this equipment but to indi- cate that they would install it in the near future. Furthermore, it is obvious that the UA pipefitters who refused to erect the piping on March 13 were aware that it did not meet the requirements of the "fabrication" clauses and that the UA was opposed to handling it when they refused to work on the pipe unless the UA first gave its approval. In International Brotherhood of Electrical Workers, Local 501, et al. (Samuel Langer) v. N.L.R.B.,2 the Supreme Court made it clear that "The words `induce or encourage' [as used in Section 8(b) (4) (A )] are broad enough to include in them every form of 2 341 U. S. 694, 701-702. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD influence and persuasion." (Emphasis supplied.) Kelley, the presi- dent of Local 636, was present at the time Dallam asked the pipe- fitters to install the Westinghouse piping. When the men replied that they would not handle it unless the "Union" ordered them to do so, Kelley was the one person to whom they could look for an affirmative authorization to work because, to them, Kelley was the "Union." 3 Inasmuch as the pipefitters knew that a state of facts existed, namely, UA's attitude of opposition to erecting Westing- house pipe or any other pipe which did not satisfy the "fabrication" clauses, Kelley could not stand silent without conveying to the men that this attitude still persisted.4 In our opinion, Kelley's silence was as effective in inducing or encouraging the pipefitters to engage in a concerted refusal to work upon, or strike against, Westinghouse piping as any words which he might have uttered. Under these circumstances, we find that it was incumbent upon Kelley to indicate to the men that the UA had no objection to the installation of the Westinghouse piping. By his failure to do so, the Respondents induced or encouraged United Engineers' pipefitters at River Rouge to engage in a strike and a concerted refusal in the course of their employment to handle that equipment for the unlawful objects alleged in the complaint and found by the Trial Examiner.5 Fur- thermore, we find in the context of these circumstances that the Respondents themselves effectively engaged in a strike as expressly proscribed in Section 8(b) (4) (A) by their decision that no work be done on the Westinghouse equipment because it had not been prefabricated by UA members. The Respondents' exceptions in this, connection are therefore overruled. The Respondents also contend that the Trial Examiner erred in finding that Kelley unlawfully induced or encouraged Stolliker and Morgan because there is no showing that these individuals were employees within the purview of the Act. Stolliker worked with a crew of 12 pipefitters in the turbine room. Morgan worked in the receiving yard. While both bore the title of foreman, there is no evidence in the record that they possessed any of the indicia of supervisory authority set forth in Section 12)(1i) of the Act. The General Counsel, having formally alleged that employees of United Engineers were unlawfully induced or encouraged by Respondents, and having established that Stolliker and Morgan were employed 3 On the morning of May 10 , 1957, and during the course of the Section 10 ( 1) injunction proceeding before the district court, Kelley gave the order which caused the men to work on the Westinghouse piping at River Rouge. 4 See Local 1016, United Brotherhood of Carpenters d Joiners of America, AFL-CIO, et at. (Booher Lumber Co., Inc.), 117 NLRB 1739 , 1745-1746. 5 See International Brotherhood of Teamsters, etc., Local 554 v. N.L.R .B. (Clark Bros. Transfer Co.), 262 P. 2d 456 (C.A., D.C.), enfg. in part 116 NLRB 1391 ; Seafarers' International Union of North America, et at. (Superior Derrick Corporation ), 122 NLRB 52 (Member Fanning dissenting In part). LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 231 by that company and that they were induced and encouraged by Respondents for unlawful objects, it rested with the Respondents to produce evidence that these individuals were supervisors and not employees in order to remove Kelley's conduct from the proscriptive ambit of the statute. This the Respondents failed to do. Accord- ingly, like the Trial Examiner, we find that Stolliker and Morgan were employees within the meaning of the Act and that they were induced or encouraged by Kelley in violation of Section 8(b) (4) (A).6 2. When the UA pipefitters at River Rouge refused to install Westinghouse pipe on March 13, United Engineers telephoned Local 636 and requested that 12 additional men be sent to the project to perform that work. This action was taken pursuant to Article 5 of the National Construction Agreement which is entitled "Hiring of Men." The article provides that "initial requests for the furnish- ing of journeymen and apprentices shall be made to the Local Union within whose territorial jurisdiction the work is being performed." Local 636 has jurisdiction over the entire Detroit area in which Edison's projects are located. The article further provides that the "Union agrees to furnish at all times to the Employer duly qualified journeymen and apprentices in sufficient number as may be necessary to properly execute work contracted for by the Employer in the manner and under the conditions specified in this Agreement," and that "If the Local Union in the territory ... where the Employer holds a contract fails to supply sufficient competent and capable journeymen and apprentices, . . . the Employer may request the. United Association to furnish such additional employees as it may require." Only when the Respondents are unable to furnish men may United Engineers go outside the territorial jurisdiction of Local 636 to obtain "such journeymen." However, the record establishes that all pipefitters employed by United Engineers at River Rouge were members of Local 636, and that all such pipefitters were re- quested from, and referred by, that Local to United Engineers in accordance with the terms of the Agreement. Despite United Engineers' request for men on March 13, and a subsequent request made on March 14, Local 636 refused to refer them, admittedly because of the UA's opposition to handling West- inghouse pipe and to Edison's purchasing policies. On May 20, 1957, United Engineers and Respondents executed an agreement whereby the UA would furnish pipefitters to finish all piping work at River Rouge, including Westinghouse piping. In return, United Engineers agreed not to transfer men from River Rouge to St. Clair e We adopt the Trial Examiner's finding, to which no exceptions were taken , that the Respondents did not engage in unfair labor practices with respect to the employees of General Electric Corporation, Allis-Chalmers Manufacturing Company, Spitzley Plumbing and Heating Company of Detroit, Michigan , Babcock & Wilcox, Clement Electric Com- pany, and the Crane Company. We shall therefore dismiss this aspect of the complaint. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD until United Engineers could insure that Edison would purchase pipe which was prefabricated solely in shops employing UA mem- bers. Thereafter, the UA instructed United Engineers not to call the Local for any men for the St. Clair and Monroe projects. In April and May 1957, Respondents refused to refer pipefitters to DiDuca Brothers and Partlan Company for work at the St. Clair project. The reason for the refusal was Edison's persistence in adhering to its purchasing policies. So far as appears on this record, neither DiDuca nor Partlan were under contract with respondents requiring the latter to supply pipefitters. In his complaint, the General Counsel alleged that the Respond- ents' refusal to refer members to United Engineers and other em- ployers also violated Section 8(b) (4) (A) because it constituted a "strike" or because "employees" were thereby induced or encouraged in the course of their employment not to perform work. The Trial Examiner disagreed. In reliance on Joliet Contractors,' he found no violation in this regard on the ground that no employment rela- tionship existed at the time between the members who were not referred and the employers in question. The General Counsel and the Charging Parties contend that the facts in this case are not controlled by the holding in Joliet but rather approximate those of the Longshoremen's cases" in which the Board found that certain longshoremen were "employees" under Section 8(b) (4) (A) even though they were not working for a given employer when the offend- ing union engaged in its unlawful inducement. For the reasons set forth below, we concur in this contention. Before considering the decisions upon which the respective parties draw for support, we deem it appropriate to set forth the pertinent statutory guidelines and their judicial delineations which must con- trol our decision herein. Section 8(b) (4) (A) makes it unlawful for a union or its agents "to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment . . . to perform serv- ices . . ." for certain proscribed objects. (Emphasis supplied.) Section 501(2) defines "strike" as encompassing "any strike or other concerted stoppage of work by employees . . . and any concerted slow-down or other concerted interruption of operations by em- ployees." [Emphasis supplied.] Because section 8(b) (4) (A) refers to a strike by "employees," and to inducement and encouragement of "employees," it is necessary to examine the content and meaning of the term "employee" as used in the statute. 7 Joliet Contractors Association, et at. v. N.L.R.B., 202 F. 2d 606 (C.A. 7), cert . denied 346 U.S . 824, 99 NLRB 1391. 8 United Marine Division, Local ' 333,' et at. ( New York Shipping Association), 107 NLRB 686 ; Local 1422 , International Longshoremen's Association, Independent (Charles- ton Stevedoring Company, et al.), 118 NLRB 920. LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 233 In Section 2(3) of the Act, Congress stated that "'employee' shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states other- wise. . . ." [Emphasis supplied.] In thus describing the term, Congress did not essay any restrictive definition but drew the term broadly to accommodate the various and changing employment arrangements and relationships which might arise between parties during the course of disputes covered by the statute. As the Supreme Court noted in the Phelps Dodge case; "The policy [Congress] expressed in defining `employee' both affirmatively and negatively, as it did in § 2(3), had behind it important practical and judicial experience. . . . This was not fortuitous phrasing. . . . The broad definition of `employee,' `unless the Act explicitly states otherwise,' . . . expressed the conviction of Congress `that disputes may arise regardless of whether the disputants stand in the proximate relation of employer and employee,' . . ." (Emphasis supplied.) In that case, the Court held that applicants who were discriminatorily denied employment were entitled to the same statutory protections as "employees" even though they were not under a contract of hire when the discrimination occurred. Whether the pipefitters whom the UA refused to refer to United Engineers and other employers had the status of "employees" as used in Section 8(b) (4) (A) therefore depends upon considerations of the peculiar character of the intended relationship or arrange- ment with these employers, and is not controlled exclusively by any immediate or continuing employer-employee nexus. As the Court of Appeals for the Sixth Circuit stated in American Federation of Radio and Television Artists v. Getreu,10 "Whether such relation- ships existed in the present case is a question to be resolved in the first instance by the Board. Unless this court should hold that nothing short of a continuous employment relationship can suffice, the Board should be allowed to determine whether the present situation is more akin to the Longshoremen's cases than to the Joliet Contractors case.":- We therefore turn to the decisions upon which the opposing parties rely. In Joliet Contractors, supra, the union refused to refer union glaziers to certain glazing contractors unless the latter agreed not to use preglazed sash on their projects. However, it does not appear that these contractors were parties to any agreement with the union covering the terms and conditions of employment for union members, a P7ielps -Dodge .Corp. v. N. L.R.B., 313 U . S. 177, 191-192. 10 258 F. 2d 698 (C.A. 6). u In this case , the court affirmed the granting of an injunction under Section 10(1) and ruled that the district court appropriately found that there was reasonable cause to be- lieve that the union violated Section 8(b) (4) (A ). The union had contended that it did not induce "employees" to cease work but rather induced members not to accept work and that this conduct was lawful under Joliet Contractors. 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nor does it appear that the union was the exclusive hiring source for glaziers in the area or was in any contractual manner obligated to supply the men. As a result of such conduct , the union was charged with violating Section 8(b) (4) (A) by engaging in a "strike," and inducing "employees" to strike or concertedly refuse to work for the contractors. The Board held that the union's refusal to refer members was privileged under the Act. It reasoned that the members had no status as "employees" because they had not technically accepted employment with the glazing contractors nor had they commenced work. The Board further concluded that, assuming the members were deemed to be employees, there was no showing that the union induced their refusals to work. The Court of Appeals for the Seventh Circuit upheld the Board's decision. However, in doing so, it construed Section 8(b) (4) (A) as expressing a congressional pur- pose not to proscribe "the refusal to accept employment, either indi- vidually or in concert," in order to avoid a serious constitutional challenge . The court also observed that the "statute did not con- demn the refusal by glaziers to go on a job and it did not require them as individuals to stay on a job." In New York Shipping Association, supra, decided after Joliet, the union called a strike against certain tugboat operators and picketed at piers where members of the Association did business. Consequently, union longshoremen refused to work for the Associa- tion even though they were neutrals in the dispute. Charged with violating Section 8(b) (4) (A), the union defended on the ground that the longshoremen were not "employees" under the Act because of the peculiar employment practices at the piers. Unlike Joliet, the parties in the Shipping Association case had a contract covering longshoremen which required that they join the union on or after the 30th day of employment by Association members and provided for the payment of vacation as well as pension and welfare benefits to all workers covered by the agreement. Under the employment arrangement between the parties, longshoremen "shaped up" each morning at the piers in order to obtain employment with an Associa- tion employer . A hiring foreman, who was a member of the union, selected a "gang" of longshoremen and assigned them to work for a particular employer. In some cases, the assignment resulted in regular daily employment until the assigned tasks were concluded. In others, the longshoremen shaped up each morning and their employment terminated at day 's end. In still other cases, the men presented themselves for work but were not assigned to a job with any employer. In each case, longshoremen obtained work only by visiting the piers and being assigned to gangs by a member of their union. LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 235 The Board concluded that the longshoremen, including those who were not under a technical contract of hire during the union's picketing, and who would not have been selected for work each day that the picketing occurred, were nevertheless "employees" within Section 8(b) (4) (A) who were induced "in the course of their em- ployment" by the union's picketing. Because of the employment prac- tices at the piers as well as the provisions of the contract between the parties, the Board found that "an established arrangement and course of employment" was intended by the parties which had suffi- cient characteristics of "certainty and continuity" to justify the con- clusion that all longshoremen covered by the agreement were em- ployees in the statutory sense. A similar conclusion was reached in Charleston Stevedoring Co., supra. There, the union refused to refer longshoremen to secondary employers with whom it was in con- tractual relations covering the men. Pursuant to the employment practices in Charleston, the secondary employers obtained their long- shoremen under an arrangement whereby they telephoned the union hall for men and the union posted such requests on its bulletin board. Because of a primary dispute with other employers, the union refused to post the requests with the result that no longshore- men were referred for work. The Board found not only that the union unlawfully induced "employees" by its refusal to post, but that it had also engaged in a "strike" by the same conduct. In the case before us, the employment practices and arrangements contemplated by United Engineers and the Respondents are clearly evidenced by their National Construction Agreement. United Engi- neers agreed to look exclusively to the UA for the supply of pipe- fitters for work within the territorial jurisdiction of Local 636. All pipefitters were required to join the UA "on the earliest date pro- vided for by applicable Federal Law" as a condition of employment with United Engineers. The record establishes that all pipefitters employed by United Engineers were UA members, and that all such pipefitters were requested from, and were referred by, Local 636. This contractual arrangment was tantamount to an exclusive hiring hall. No pipefitter within Local 636s jurisdiction could hope to obtain employment with United Engineers unless his availability was known to the Local and unless the Local selected him from the pool of available union members for referral to that company. How- ever, the intended employment practices and arrangements did not stop with these hiring procedures. Under the Agreement, United Engineers contracted to make payments into various health, welfare, Pension and vacation funds for UA members. In addition, contribu- tions were made to a trust fund for the education of journeymen pipefitters and their apprentices. The Agreement does not restrict payment of these benefits only to pipefitters who are under a technical 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract of hire with United Engineers. Rather, it seems clear that. they are available to all members of the Respondent Unions without regard to their immediate employment status. Upon careful consideration of the foregoing facts, we find merit in the contentions of the General Counsel and the Charging Parties; that the pipefitters whom Respondents refused to refer to United. Engineers were "employees" within the meaning of Section 8(b) (4) (A). Where, as here, an employer agrees by contract to look to a union as the exclusive source of supply of workers; where only union members are hired by the employer as a result of referrals by the union; and, where the contract obligates the employer to con- tribute to fringe benefit plans in which the union members generally share, we are convinced that "an established arrangement and course of employment" is contemplated affecting members of the union which have sufficient characteristics of "certainty and continuity" to warrant the conclusion that they are "employees," even though they do not stand "in the proximate relation of employer and em- ployee." As such an arrangement and course of employment existed in this case, we find that the members of Local 636 occupied the statutory status of "employees" when Respondents refused to refer them for work with United Engineers. Although the General Counsel contends that the men whom Re- spondents failed to refer to DiDuca Brothers and Partlan Company were also "employees," the record lacks evidence that those employers were parties to the National Construction Agreement. We therefore conclude that no employment relationship had arisen in these in- stances and we shall dismiss the complaint insofar as it alleges that Respondents violated the Act by refusing to refer members to those companies. As we have already found, Respondents violated Section 8(b) (4) (A) by engaging in a strike, and by inducing and encourag- ing their members to cease working for United Engineers at River Rouge because Respondents objected to the installation of Westing- house pipe. The Respondents were not by such means merely seeking to force a cessation of work on Westinghouse equipment at that project. The Trial Examiner appropriately found that their ob- jectives were more comprehensive. They sought to insure that no, contractor subject to the National Construction Agreement would handle prefabricated piping at any of Edison's projects within the territorial jurisdiction of Local 636 which did not satisfy the "fabrication" clauses, and to force Edison to conform its purchasing policies to those clauses. Thus, when Respondents decided not to refer its members to United Engineers, their refusal to do so was not conduct isolated and divorced from the existing illegal strike in which they were engaged. Rather, it was part and parcel of that strike and LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 237 was inseparably designed to accomplish Respondents' more compre- hensive boycott objectives. Accordingly, we find that the Respond- ents, by refusing to refer members to United Engineers, implemented and perpetuated their unlawful strike at River Rouge and for this reason violated Section 8(b) (4) (A). For additional reasons, we believe that Respondents violated the Act by its refusal to refer. Every UA pipefitter who worked for United Engineers was procured from and was referred by the Re- spondents. So far as these men were concerned, their prospects of employment with that company, either at River Rouge or at any other Edison project within the jurisdiction of Local 636, depended -entirely upon whether the Respondents channelled information to them concerning the availability of jobs with United Engineers. Possessed with this information, Respondents were in a position to ,determine whether their members would work or remain idle. By withholding it, they could insure that their members remained ig- norant of job opportunities. To "induce or encourage," as the Su- pren.e Court has stated, involves- "every form of influence or per- suasion." 12 In our opinion, when a union assumes the role of an exclusive clearing house for jobs in its jurisdiction, the refusal to inform its members that jobs are available is as effective in influenc- ing or persuading them not to work as any affirmative instruction in this regard would be. We therefore find that, by refusing to refer pipefitters to United Engineers in the circumstances presented here, the Respondents unlawfully induced and encouraged employees to engage in a strike or a concerted refusal in the course of their em- ployment to perform services. We further conclude that the Respondents engaged in a "strike" with the meaning of Section 8 (b) (4) (A) when they failed to refer members to United Engineers. That term encompasses "any strike" or "other concerted interruption of operations by employees." Where a union, as the agent of its members, refuses to permit them to work for any employer with whom it has a labor agreement by the simple expedient of failing to dispatch them to a project where operations are about to commence or already are in progress, the union causes a concerted interruption of the employer's operations as surely as if it had called the men off the job where they were already at work. What the Respondents did here was no different than what the union had done in Charleston Stevedoring Co. By refusing to post re- quests for longshoremen on its bulletin board, the union in that case was found to have struck in violation of Section 8(b) (4) (A). By refusing to refer pipefitters to United Engineers in this case, we find that the Respondents engaged in the same violation. 12See footnote 2, supra. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we find that the Respondents, by refusing to refer pipefitters to United Engineers, engaged in, and induced or en- couraged employees of United Engineers to engage in, a strike or concerted refusal in the course of their employment to perform services for objects proscribed by the Act and thereby offended the provisions of Section 8(b) (4) (A).13 THE REMEDY We have found that the Respondents engaged in a strike and in- duced or encouraged employees of United Engineers at Edison's River Rouge project to engage in a strike and a concerted refusal in the course of their employment to handle Westinghouse piping for the proscribed objects alleged in the complaint. We shall therefore order them to cease and desist therefrom. We have further found that the Respondents, in violation of the Act, engaged in a strike; and induced or encouraged the employees of United Engineers to engage in a strike or a concerted refusal in. the course of their employment to perform services by refusing to refer pipefitters to United Engineers for work at the River Rouge project. The record discloses that Edison has canceled its contract with United Engineers for the erection of the turbine unit at St. Clair because of the latter's inability to obtain pipefitters from the Respondents. So far as appears, United Engineers' contract to erect a power unit at Monroe is still in effect. However, this employer has been in- structed by Respondents not to request pipefitters for that project. Because the piping for the turbines at the St. Clair and Monroe sites has been prefabricated by employees of Westinghouse and Allis- Chalmers who do not belong to the UA, any employer which is a signatory to the National Construction Agreement and which is re- tained by Edison to erect those turbines will be in the same position as United Engineers in that it must obtain pipefitters from the Re- spondents. The thrust of the Respondents' unlawful conduct is aimed at forcing Edison to alter its purchasing policies to insure that only piping prefabricated by employers under contracts with the UA will be used on Edison's projects. Consequently, we believe there exists the danger that Respondents' violations evidenced here will manifest themselves at other Edison projects within the territorial jurisdiction of Local 636 in the future. To effectively curb the ex- tension of Respondents' unlawful activities to other employers who may be called upon to install prefabricated piping at St. Clair and Monroe as well as other Edison projects within that jurisdiction, 13 To the extent that it is inconsistent with the decision herein, Members Rodgers and Jenkins would overrule the decision of the Board in the Joliet case, supra, 'footnote T. Chairman Leedom and Members Bean and Fanning do not find it necessary There to pass upon the validity of the Board 's decision in the Joliet case. LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 239 we find it necessary to fashion a remedial order broad enough to encompass these employers and projects.' Accordingly, we shall order the Respondents to cease and desist from refusing to refer its members, upon request of employers, in- cluding United Engineers and others with whom Respondents are in similar contractual agreement,'-' for work on piping at Edison's project in St. Clair and Monroe, or at any other such project within the territorial jurisdiction of Local 636, because such piping has been prefabricated off those sites by non-UA members. We are mindful, as was the court in the Joliet case, that Local 636's pipefitters may individually refuse to handle or install piping which has been prefabricated by employees who belong to a union not affiliated with Respondent Unions, without violating Section 8(b) (4) (A). We recognize that the Board may be without constitu- tional or legislative authority to direct them to do so and the reach of our Order herein does. not purport to accomplish this result. However, we are equally mindful, as was the court in the Clark case,'', that "The individual employee has a right to make his own independent choice as to whether he will handle [so-called `hot goods'] free from any direct or indirect pressure or `encouragement' by the union." To insure this freedom of choice, we shall direct that the Respondents notify members of Local 636 that Respondents have no objection to their handling or installing piping at St. Clair and Monroe, or at any other Edison project within the territorial juris- diction of Local 636, which has been prefabricated by any employer with employees who are not members of Respondent Unions. We shall also order the Respondents to notify members of Local 636 that any previous instructions, requests, or appeals which Re- spondents have issued forbidding the handling or installation of piping at Edison's projects which is prefabricated by non-UA em- ployees have been withdrawn, and that the "fabrication" clauses in the National Construction Agreement do not prohibit or otherwise preclude any member of said Local from handling or installing pre- fabricated piping which does not satisfy the terms of those clauses. We shall further order that Respondents notify members of Local 636 that they will not discipline, penalize, or otherwise discriminate against any member for working on prefabricated piping at Edison's aforementioned projects which contravenes the terms of the "fabrica- tion" clauses. 14 In its exceptions, Edison urges that the Board's order be extended to include Local 777, affiliated with the UA, whose jurisdiction covers the Port Huron, Michigan , area. No charges have been filed against that Local, nor has it been named in the complaint. Edison's exceptions in this connection are therefore overruled. 11 Our decision herein is in no way intended to require Respondents to refer members upon the request of employers within the jurisdiction of Local 636 with whom Respondents are not in similar contractual agreement to refer pipefitters. 16 Supra, footnote 5. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We shall also order the Respondents to repeat and emphasize to members of Local 636, in response to any inquiries by members at Local 636 meetings, or by telephone or otherwise, the facts which the Board has herein directed Respondents to make known to Local 636's members. Finally, we shall order the Respondents to mail to each member of Local 636 a copy of the notice appended to this Decision and Order, in addition to posting the same in the places and at the times pre- scribed in the Order. ORDER Upon the basis of the entire record in this proceeding, and pur- suant to Section 10(c) of the National Labor Relations Act, the Na- tional Labor Relations Board hereby orders that Respondents, Local No. 636 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, and their officers, representatives, successors, assigns, and agents, including Tim McCarthy and William B. Kelley, shall: 1. Cease and desist from : (a) Engaging in a strike, and inducing or encouraging the em- ployees of United Engineers and Constructors, Inc., or of any other employer or person, to engage in a strike or concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services for their employers, where an object thereof is to force or require United Engineers and Con- structors, Inc., or any other employer or person, (1) to cease pur- chasing, using, handling, transporting, or otherwise working on or dealing in materials fabricated by Westinghouse Electric Corpora- tion or by any other employer or person who does not employ Build- ing Trades Journeymen and Apprentices for the fabrication of said materials under an agreement with United Association of Journey- men and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, or its affiliated Locals, or (2) to cease doing business with the employers or persons mentioned in (1) above or with The Detroit Edison Company. (b) Engaging in a strike, and inducing or encouraging the em- ployees of United Engineers and Constructors, Inc., or of any other employer or person which is a signatory to the National Construction Agreement or any other such agreement with United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting In- dustry of the United States and Canada, AFL-CIO, to engage in a LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 241 strike or concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services for their employers, by refusing, upon request of such employers, to refer members of Local 636, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, for work with said employers, for the objects described in (a) above. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Notify the members of said Local that Respondents have no objection to their installing or otherwise handling piping at any project of The Detroit Edison Company within the territorial juris- diction of said Local which has been prefabricated by any employer with employees who are not members of Respondent Unions. (b) Notify the members of said Local that any previous instruc- tions, requests or appeals which Respondents have made against in- stalling or otherwise handling piping at projects of The Detroit Edison Company within the territorial jurisdiction of said Local, which piping was prefabricated by employees who are not members of Respondent Unions, have been withdrawn, and that the "fabrica- tion" clauses in the National Construction Agreement or any other such agreement with United Engineers and Constructors, Inc., or any contractor retained by The Detroit Edison Company to erect turbine units at projects within the Local's jurisdiction, do not pro- hibit or otherwise preclude any member of said Local from installing or otherwise handling prefabricated piping which does not satisfy the terms of those clauses. (c) Notify the members of said Local that Respondent will not discipline, penalize, or otherwise discriminate against any member for working on prefabricated piping at The Detroit Edison Company's aforementioned projects which contravenes the terms of the "fabrica- tion" clauses. (d) Repeat and emphasize to members of said Local, in response to any inquiries by members, at meetings of said Local, by telephone or otherwise, the facts which the Board has herein ordered the Re- spondents to make known to members of said Local. (e) Post at the offices of Local 636, and at all other offices and places where notices to members of said Local are customarily posted, copies of the notice attached hereto marked "Appendix A." 14 Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by official repre- 17 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 508889-60-vol. 123-17 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentatives of Respondents, including Tim McCarthy and William B. Kelley, be posted immediately upon receipt thereof, and maintained for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (f) Mail to each member of Local No. 636 copies of the notice attached hereto marked "Appendix A." (g) Mail to the Regional Director for the Seventh Region signed copies of said notice for posting by United Engineers and Construc- tors, Inc., and The Detroit Edison Company, if willing, in places at the River Rouge, St. Clair, and Monroe, Michigan, projects where notices to employees of United Engineers and Constructors, Inc., or the employees of any other employer retained by The Detroit Edison Company to erect the turbine units which is a party to the National Construction Agreement, are customarily posted. (h) Notify the Regional Director for " the Seventh Region in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondents violated Section 8 (b) (4) (A) of the Act with re- spect to the employees of DiDuca Brothers, Inc., J. W. Partlan Com- pany of Detroit, Michigan, General Electric Corporation, Allis- Chalmers Manufacturing Company, Spitzley Plumbing and Heating Co. of Detroit, Michigan, Babcock & Wilcox, Clement Electric Com- pany, and the Crane Company, be, and it hereby is, dismissed. APPENDIX A NOTICE TO ALL MEMBERS OF LOCAL No. 636 AND OF THE UNITED AS- SOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL- CIO, AND TO ALL EMPLOYEES OF UNITED ENGINEERS AND CONSTRUC- TORS, INC. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : WE WILL NOT engage in a strike, or induce or encourage the employees of United Engineers and Constructors, Inc., or of any other employer or person, to engage in a strike or concerted re- fusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services for the employer, where an object thereof is to force or require LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 243 United Engineers and Constructors, Inc., or any other employer or person, (1) to cease purchasing, using, handling, transporting, or otherwise working on or dealing in materials fabricated by Westinghouse Electric Corporation or by any other employer or person who does not employ Building Trades Journeymen and. Apprentices for the fabrication of said Materials under an agree- ment with United Association of Journeymen and Apprentices. of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, or its affiliated Locals, or (2) to cease doing business with the employers or persons mentioned in (1) above or with the Detroit Edison Company. WL WILL NOT engage in a strike, or induce or encourage the- employees of United Engineers and Constructors, Inc., or of any other employer or person which is a signatory to the National Construction. Agreement, or any other such agreement, with United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, to engage in a strike or concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services for their employers, by refusing upon request of such employers to refer members of Local No. 636, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, for work with said employers, for the objects described in the paragraph above. WE WILL withdraw all previous instructions, requests, and appeals to members of Local No. 636 not to install or otherwise handle piping at projects of Detroit Edison Company within the territorial jurisdiction of said Local which has been pre- fabricated away from the projects by employees of employers who are not parties to the National Construction Agreement or any other such agreement. Further, the fabrication clauses in that Agreement do not prohibit or otherwise preclude any member of Local No. 636 from installing or otherwise handling prefabricated piping which does not satisfy the terms of those clauses. WE WILL NOT discipline, penalize, or otherwise discriminate against any member of Local No. 636 for working on prefabri- cated piping at the aforementioned projects of The Detroit Edison Company which does not satisfy the terms of the fabri- cation clauses. WE WILL repeat and emphasize to members of Local No. 636, in response to any inquiries -by members at meetings of said 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local; or by telephone or otherwise, the facts in this notice which the Board has ordered us to make known to members of said Local. LOCAL No. 636 OF THE UNITED ASSOCIA- TION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) Dated---------------- By------------------------------------- WILLIAM B. KELLEY, President Dated---------------- By------------------------------------- Tim MCCARTHY, Business Manager UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF T..IE PLUMBING AND PIPEFITTING INDUSTRY OF TIIE UNITED STATES AND CANADA, AFL- CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by The Detroit Edison Company and Westinghouse Electric Corporation, herein called Edison and Westinghouse, respectively, the General Counsel of the National Labor Relations Board, by the Regional Director for the Seventh Region (Detroit, Michigan), issued a complaint dated April 16, 1957, alleging that the Respondents, herein sometimes called Respondent Local 636 and Respondent International, had engaged and were engaging in unfair labor practices within the' meaning of Section 8(b) (4) (A) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. More spe- cifically, the complaint, as subsequently amended, alleges in substance that since on or about January 21, 1957, the Respondents have engaged in and induced and encouraged the employees of United Engineers and Constructors, Inc.,' DiDuca Brothers, Inc., and of other named employers 2 at Edison's construction projects at River Rouge, St. Clair, and Monroe, Michigan, to engage in a strike or concerted refusal in the course of their employment to handle or work on materials of perform services with an object of forcing or requiring United Engineers and Constructors, Inc., and/or any other contractor of Edison to cease using materials fabricated by Westinghouse and/or other employers who fabricate pipe with employees who are not members of or represented by Respondent International 'At the commencement of the hearing, a motion by counsel for United Engineers and ,Constructors, Inc., herein called United Engineers, to intervene and participate to the -extent of its interest was granted without objection. 2 General Electric Corporation, Allis-Chalmers Manufacturing Company, Spitzley Plumb- ing and ITe:nting Company of Detroit, Johnson and Larson of Detroit, Babcock & Wilcox, Clement Electric 'Company, and Crane Company. LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 245 and/or one of its locals, or who fabricate pipe away from said construction sites, and to cease doing business with Westinghouse and/or such other employers, and to force or require United Engineers and Constructors, Inc., and the other named employers, to cease doing business with Edison. In their duly filed answers, as subsequently amended, the Respondents generally denied the unfair labor practice allegations. Pursuant to due notice, a hearing was held at various intervals during the period from June 3 to July 2, 1957, at Detroit, Michigan. All parties were repre- sented at the hearing, afforded full opportunity to be heard, to examine and cross- examine witnesses, to introduce relevant evidence, to present oral argument, and thereafter to file briefs as well as proposed findings of fact and conclusions of law. The Respondent's motion to dismiss the complaint, made at the conclusion of the hearing and upon which I reserved ruling, is granted in part and denied in part, in accordance with the findings of fact and conclusions of law made below. Subsequent to the hearing, Westinghouse and Edison filed separate motions to correct the transcript. Thereafter, with one exception, the parties either concurred in, or made no objections to, the granting of these motions. The exception relates -to the proposed correction contained in Edison's motion that the word "exception" on page 1156, line 3 of the transcript of testimony be changed to "acceptance," to which Respondents object on the ground that the proposed change does not appear to be correct. I have examined the changes proposed in the motions of Westing- house and Edison and, with the exception above noted, find them to be correct. Accordingly, I hereby grant the motions to correct the transcript of testimony, except in the respect above noted. The documents in connection with these motions are hereby made part of the record in this proceeding, and have been placed in the official exhibit folder as Trial Examiner's Exhibit No. 1 (a) - 1 (e), inclusive. Subsequent to the hearing, all parties filed briefs, which I have fully considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. COMMERCE; THE BUSINESS OF THE COMPANIES 3 Westinghouse Electric Corporation, herein called Westinghouse, is a Pennsyl- vania Corporation, engaged in the manufacture, distribution, and sale of electrical products and various types of equipment throughout the several States of the United States, and of ordnance materials and electronic products used by the Armed Forces of the United States. During the year 1956, Westinghouse sold and shipped finished products, valued in excess of $500,000,000, to States outside the State in which these products were produced; during the same period, it sold products, valued in excess of $1,000,000, to manufacturers, each of whom annually shipped products, valued in excess of $250,000, to points outside the State in which these products were manufactured. During 1956, Westinghouse shipped materials, valued in excess of $1,000,000, from States other than the State of Michigan to the project site of the Edison power plant at River Rouge, Michigan, for use in the construction and erection of a powerplant for Edison. The Detroit Edison Company, herein called Edison, is and, at all times material herein, has been a public utility engaged in the generation, sale, and distribution of electrical energy within the State of Michigan. It annually purchases from out- side the State of Michigan supplies and equipment, valued in excess of $5,000,000, and annually sells electrical energy, valued in excess of $25,000,000, to manufac- turing plants located in the State of Michigan, including General Motors Corpora- tion and Chrysler Corporation. During 1956, Edison's gross income from its entire system was in excess of $230,000,000. United Engineers and Constructors, Inc., herein called United Engineers, is and, at all times material herein, has been a corporation, with its operating headquarters and principal office and place of business in Philadelphia, Pennsylvania, which annually performs services, valued in excess of $1,000,000, outside the State of Pennsylvania. United Engineers is and, at all times material herein, has been engaged in the construction and erection of a powerplant for Edison at its River Rouge, Michigan, project, pursuant to a contract price in excess of $75,000,000. During 1956, United Engineers furnished services, valued in excess of $100,000, to Edison at River Rouge, Michigan. 3 The findings in this section are based on the allegations in the complaint and upon a stipulation of the parties that responsible and qualified witnesses, if called by the General Counsel, would testify to the facts alleged in the complaint and set forth In the text. 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that Westinghouse, Edison, and United Engineers are engaged in com- merce within the meaning of the Act. II. THE RESPONDENTS I find, as the Respondents admit, that the International and its Local, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canda, AFL-CIO, and its Local No. 636, herein sometimes called the International or United Association or the UA and Local 636, respectively, are labor organizations within the meaning of Section 2(5) of the Act. I find, as the Respondents also admit, that at all times material herein, Tim McCarthy was, and is, business manager of Local 636, and William B. Kelley was, and is, president of Local 636. III. THE UNFAIR LABOR PRACTICES A. Introduction The evidence adduced in support of the complaint is either uncontradicted or admitted by the Respondents. Consequently, as the General Counsel and Re- spondents concede in their briefs, there is no serious controversy as to the facts in the case. The dispute which gave rise to this proceding arose in connection with the installation of a Westinghouse turbine generator for Unit No. 2 at River Rouge, Michigan, by employees of United Engineers, which is the general con- tractor for Edison in the construction of a powerplant. 1. Edison's projects: Edison has powerplants located in Michigan at Trenton Channel, Conners Creek, St. Clair or Marine City, and River Rouge. Two units were installed at Trenton Channel in 1948 or 1949, and at Conners Creek in 1951. Units 1, 2, 3 and 4 at St. Clair and Unit No. 1 at River Rouge were completed before the dispute in question arose. In 1956 Edison was engaged in an expansion program at River Rouge and St. Clair to increase its generating capacities. As part of this expansion program, it was having two additional steam generating units constructed at River Rouge, known as Units Nos. 2 and 3, and had started work on two steam-generating units at St. Clair, known as Units Nos. 5 and 6. Edison has also begun work on a conventional steam turbine generating unit at its Enrico Fermi powerplant at Monroe, Michigan, known as Unit No. 1. The dispute in question arose in connection with the construction of Unit No. 2 at River Rouge. 2. Relationship between Edison and United Engineers: United Engineers was the general contractor employed by Edison in the construction of two units at Conners Creek, Units Nos. 1, 2, 3, and 4, at St. Clair, and Units Nos. 1, 2, and 3 at River Rouge. On August 29, 1956, Edison gave United Engineers a contract as general contractor on St. Clair Unit No. 5, with an option for St. Clair Unit No. 6. During the course of the hearing in this proceeding, Edison, by letter dated June 11, 1957, canceled this contract with United Engineers, although work had already commenced on Unit No. 5. Edison has also given United Engineers a contract as general contractor for the construction of the steam generating unit at the Enrico Fermi Atomic Power plant at Monroe, Michigan .4 The contracts between United Engineers and Edison place upon United Engi- neers the basic responsibility for building the powerplant by furnishing skilled labor and supervising the handling and erection of the turbine generator. All material and equipment are to be purchased and furnished by Edison. Under the contract, Edison retains sole control over the purchasing of all material and equipment and makes the policy decision as to what portions of the work should be performed by United Engineers and what portions should be subcontracted by Edison. If subcontracts are let, the administration of the contracts are turned over to United Engineers to see that time, quality, and performance is in accordance with the contract. The work which Edison decides is to be performed by United Engineers is done on "a force labor account"; that is, United Engineers hires the workmen directly, bills Edison for the cost of the work, and receives a fixed fee from Edison. In no event does Edison have any employees engaged in manual or physical work at any of the projects on which United Engineers is general contractor. Thus, Edison had given the piping work on the Conners Creek project to another contractor, with United Engineers supervising its performance. How- ever, United Engineers itself was given the piping work at St. Clair Units Nos. 1, 2, 3, and 4 and at River Rouge Units Nos. 1, 2, and 3. Up to the time that United Engineers' contract for St. Clair Units 5 and 6 was canceled, Edison had made no 4 United Engineers has a separate contract as general contractor from the Power Reactor Development Company for the atomic energy portion of the Enrico Fermi plant. LOCAL 636 , PLUMBING AND PIPE FITTING INDUSTRY 247 decision with regard to the piping work on these units. And as of the close of the hearing, no decision had been made by Edison with respect to the piping work at the Enrico Fermi project at Monroe , Michigan. 3. Edison's purchasing policy: It has always been Edison 's policy to purchase its material and equipment from the vendor who offers the best value , without regard to union affiliations . In the case of turbine generators , it has always been Edison's policy to purchase the unit as a complete package , that is a complete operating unit containing everything that goes on the generator from the turbine stop valve to the generator leads and all appurtenances . The reason underlying this policy is to enable Edison to center responsibility for the entire turbine unit in one company. As in the case of other material and equipment , the package turbine generator is purchased from whatever manufacturer offers Edison the best buy for its money, under the circumstances . Thus, Westinghouse is the manu- facturer of the turbine generator for two of the units at Conners Creek, for Unit No. 6 at St. Clair,5 and for Unit No . 2 at River Rouge; General Electric Corpora- tion is the manufacturer of the turbine generator for Units Nos. 1, 4, and 5 at St. Clair,6 and for Unit No. I at River Rouge; and Allis-Chalmers Manufacturing Company is the manufacturer of the turbine generator for Units Nos. 2 and 3 at St. Clair, for Unit No. 3 at River Rouge , and for Edison's portion of the Enrico Fermi project at Monroe . The dispute in question began in connection with the installation of a Westinghouse turbine generator for Unit No. 2 at River Rouge. 4. Relationship between Edison , Westinghouse, and United Engineers: In ac- cordance with the above-described purchasing policy, the turbine generator for Unit No. 2 at River Rouge was purchased by Edison from Westinghouse. The .contract between Edison and Westinghouse requires Westinghouse to provide erection supervision for the turbine generator . Lester Smith, service engineer for Westinghouse, was the Westinghouse representative designated as the erector in charge of the erection of the turbine generator for Unit No . 2. It is his function to furnish technical advice and assistance to United Engineers and its supervisors with respect to the performance and progress of the work . Westinghouse has no employees who are engaged in physical or manual work at River Rouge. Between the stop valve and the generator leads on Westinghouse's turbine gen- erator, there is a considerable amount of prefabricated lubrication and steam drain and gland piping, which is an internal part of the turbine package purchased by Edison for Unit No. 2. This pipe was fabricated ( that is, cut, bent, and welded) at Westinghouse's South Philadelphia works at Lester , Pennsylvania , by pipefitters represented by United Electrical , Radio and Machine Workers of America (U.E.), their certified bargaining representative . It was the arrival of this Westinghouse prefabricated pipe for Unit No. 2 at River Rouge, which set off the dispute giving rise to this proceeding. 5. Relationship between United Engineers and Respondents : Since 1947 , United Engineers has had a collective -bargaining agreement with United Association, Respondent International , known as the National Agreement . Respondent Local 636 has been working under the terms of this National Agreement. Pursuant to this agreement , United Engineers has employed all pipefitters , including foremen, through Local 636. The pipefitters employed at the River Rouge project , including the pipefitting foremen and general foreman , Respondent William B. Kelley, were all members of Local 636 . Thus, the general piping foreman , was also president of Local 636. Fabrication of pipe means any work performed on a straight length of pipe, such as bending, cutting a thread, forming or joining together by welding or screwing, or installing flanges. At all times material to the issues in this case in connection with the River Rouge project, as Respondents concede in their brief , the following fabrication clause in the contract between the United Association and United Engineers was in effect: 7 6 This generator is on order and is to be delivered January 2, 1960. 6 The generator for Unit No . 5 is to be delivered on September 1, 1958. v This fabrication clause appeared in the 1947 agreement and, by the terms of the agreement of March 7 , 1956, was to remain In effect till March 1, 1957 . As stated in Respondents' brief, "Insofar as the fabrication clause of the 1956 contracts relate to this case, the 1956 fabrication clauses never became effective since on June 17, 1957, NCA [National Constructors Association ] and Respondent International entered into a new agreement under which the fabrication clause, Article XVI, was changed back to conform to the terms of the fabrication clause contained In the 1947 agreement ." In any event, insofar as the issues in this case are concerned , the fabrication clause in all contracts are essentially the same , as Respondents concede in their brief. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ARTICLE IX: ERECTION (A) Pipe work of every description being installed under the supervision of the employer, employing Journeymen of the United Association in the plumb- ing and Pipe Fitting Industry, must be handled, assembled, erected and installed by Journeymen members of the United Association. (B) It is understood by the Parties of this Agreement that the pre-fabrica- tion of welded pipe formations two and one-half inches and over in diameter and all pipe bends, bends two and one-half inches and over in diameter may be performed at the site of the job or in the plant of the employer, employing Journeymen of the United Association at the prevailing building construction wage rates in effect wherever the employer's plant may be located. (C) The Local Unions of the United Association reserve the right to refuse to handle erect or install fabricated materials sent to the job that have not been fabricated by Journeymen members of the United Association, receiving the prevailing building construction wage rate in effect wherever the pipe fabrication shop may be located. THE WORK TO BE PERFORMED IN THE FIELD SHALL INCLUDE: 1. Unloading, handling and erecting of material. 2. Installation of hangers and supports. 3. Making of all bends with a nominal diameter of two inches or less. 4. Cutting and threading all pipe with a nominal diameter of two inches or less. 5. The attaching and assembling of all pipe fittings and valves whether welded, screwed or flanged, except as noted in paragraph "B" of this Article. 6. Personnel involved: It may be helpful to set forth at the outset the positions held by those most involved in the events hereinafter discussed. (a) Edison: Walker Cissler is president; Chester F. Ogden, manager of pur- chases and real estate; and Myles Scott, field assistant to the manager of con- struction. (b) Westinghouse: Lester Smith is service engineer or erector. (c) United Engineers: The following are most often mentioned: Henry Chance, president; Franklin L. Johnston, vice president; Gerald H. Brown, construction manager; Walter F. Oleksiak, assistant to Brown; William M. Dallman, general superintendent over the River Rouge project; Walter S. Hulse, assistant to Dallam; Gene Weiss, piping superintendent; William B. Kelley, general piping foreman; "Red" Morgan, yard foreman; and Stolliker, turbine room foreman. (d) Respondent Local 636: General Piping Foreman Kelley is president; Timo- thy McCarthy is business manager; and Norman McShane is an assistant business manager. Kelley and McCarthy are also Respondents in this proceeding. (e) Respondent International or United Association: Peter T. Schoemann is general president; John J. McCartin is Schoemann's assistant; and Gene Bradshaw is a general organizer for the International . The International's constitution designates the general organizers as officers of the International. B. Sequence of events 1. Incident involving Crane pipe In the fall of 1956, officials of Edison and of United Engineers attended a meet- ing at which they talked with bidders for the power piping for St. Clair Units Nos. 5 and 6. One of the prospective bidders was a local contractor by the name of Joe Spitzley of Spitzley Plumbing and Heating Company of Detroit. As Spitzley was an erector and not a fabricator, he would have to buy prefabricated pipe from a fabricator. Spitzley was asked where he would get the pipe fabricated if he were awarded the erection and supply contract by Edison. Spitzley replied that he would get the pipe fabricated by the Crane Company. Crane Company has a fabricating plant in Birmingham , Alabama, and in Chicago, Illinois. The United Association has a contract with Crane Company covering the Alabama plant but not for the Chicago plant. Spitzley later telephoned to Tim McCarthy, business manager of Local 636, told him that he was bidding on the job at St. Clair, and mentioned the Crane piping. McCarthy knew that Crane Company did not have a contract with the United Association for the Chicago plant and replied that "as long as you [Spitz- ley] live up to the terms of our agreement , and the fabrication clause in our agreement, we will have no problem, Joe." Spitzley also got in touch with LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 249 McCartin, assistant to the general president of the United Association in Washing- ton, D. C., to obtain information regarding the use of Crane pipe. McCartin told Spitzley that he had a local agreement and should abide by that agreement. At a meeting between officials of Edison and of United Engineers on December 12, 1956, Ogden, manager of purchases and real estate for Edison, asked if United Engineers could erect pipe fabricated by the Crane Company in its Chicago shop. Johnston, vice president of United Engineers, replied that "it would be a violation of our agreement" with the United Association. Ogden exclaimed, "do you mean to say that if we can save two hundred thousand dollars by purchasing Crane pipe, that we would not be permitted to do so because of your agreement!" Johnston replied in the affirmative but disagreed that Edison would effect such a saving because "your competition must be with the UA [United Association] shops. In response to a question as to whether there had been any problem with the General Electric unit, Johnston replied in the negative and that he had been advised that the pipe was fabricated by General Electric in accordance with the UA agreement.8 2. Incident involving Clement panel boards On July 6, 1956, Edison issued a purchase order to Clement Electric Co. of Grand Rapids, Michigan, for panel boards to be furnished as required for River Rouge Unit No. 3. Clement Electric Co., herein sometimes called Clement, had previously furnished panel boards which were installed at St. Clair Units Nos. 1, 2, 3, and 4. The panel boards in question consist of measuring and control devices which automatically control the combustion of boilers and generators in utility plants. The panel board contains fabricated piping of various diameters and is shipped as a completely assembled unit, which merely has to be connected to the station piping at the powerplant. On November 20, 1956, Tim McCarthy, business manager of Local 636, tele- phoned to Edgar B. Clement, president and general manager of Clement Electric Co., and asked Clement "if he employed members of the United Association in his shop on the panel boards." When Clement replied in the negative, McCarthy informed him that "under the terms of our agreement with United Engineers that I was going to call United Engineers [at River Rouge] and instruct them that the National Agreement was being violated and we did not intend to handle these panel boards." Clement asked, "what about the letter?" McCarthy said that he had no idea what Clement was talking about. The pipefitting work on the panel boards was performed at the Clement Company by employees who have been represented by a local of the IBEW for the last 15 years. The letter referred to by McCarthy is dated March 24, 1950, on the letterhead of Local 70 of the United Association in Grand Rapids, Michigan, and signed by the business representative of Local 70. Addressed "To Whom It May Concern," the letter states that "This panel was manufactured in a Union Shop by Clement Electric Company, and this letter is to certify that this local has investigated the work and is familiar with it, and that the work has been performed in full com- pliance with all the requirements of the Building and Construction Trade Council (AFL)." On December 31, Mr. Clement attended a meeting at which representatives of Edison and United Engineers were present, and discussed the matter of processing a secondary boycott charge in connection with the panel board incident. Brown, construction manager for United Engineers, suggested that he be given an oppor- tunity to go to McCarthy and see if he "couldn't settle this thing." On January 2, 1957, Brown went to McCarthy's office and explained that he did not understand why the United Association was objecting to the panel boards when they had been installed on the previous job at St. Clair without any difficulty. Brown then told McCarthy about the 1950 letter. McCarthy stated that if such a letter existed, "we would have to accept the boards." Brown had a copy of the letter sent to McCarthy and later telephoned to McCarthy, who stated that he had read the letter and that "it was okay." The next day Brown got in touch with Bill Kelley, general piping foreman for United Engineers and president of Local 636, "to make sure that the situation was all right." Kelley stated that McCarthy had been in touch with him and that "we were all set on the panel boards." About the middle of January, Clement received a telephone call from James Campbell, a representative of Detroit Edison, who stated that "the matter had been cleared up and that everything was all set." 8 The parties stipulated that employees of General Electric engaged in fabrication of pipe have been represented by a local of the United Association at all times material herein. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although one panel board had been shipped to River Rouge by the Clement Co., on December 20, the River Rouge project was not ready for the panel board until sometime in February 1957. However, prior to that time, at a conference held on January 24, Bradshaw, international organizer for Respondent International, told representatives of United Engineers that Respondents would not handle the Clement boards until the matter then under discussion was cleared up, as herein- after discussed in detail. At that time Clement was informed by Edison that the Union had reversed its position and was not going to handle the panels. The next shipment, consisting of two sections of the control bench board, was made on May 27, 1957, upon instructions from Edison, and arrived at River Rouge May 28, 1957. Respondents stipulated that these panel boards will be installed when the employees are directed to install them. 3. January 21-Westinghouse pipe arrives at River Rouge but is not unloaded On the morning of January 21, 1957, two gondola type carloads of fabricated Westinghouse pipe arrived at River Rouge and were on a siding leading into the turbine room. This was part of the pipe for the turbine generator unit purchased by Edison from Westinghouse for Unit No. 2 at River Rouge, then under con- struction. United Engineers has a regular procedure for informing its personnel about the arrival of pipe. At 8 a.m. each day a warehouseman looks at the receiving track, where all railroad shipments are placed, and lists on a sheet the car numbers, with a description of the material and date of arrival. This sheet is mimeographed and copies are sent to all supervisors, including the general foreman of the craft involved, in this case, Bill Kelley, general piping foreman. It was not necessary for Dallam, United Engineers' general superintendent over the River Rouge project, to give any instructions to Kelley or anyone else about the unloading or erection of pipe. As Kelley had been in the employ of United Engineers throughout the construction of the St. Clair units and River Rouge Unit No. 1, he was familiar with the normal procedure in this respect. This procedure was for Yard Foreman "Red" Morgan to have the cars delivered to the siding leading into the turbine room, and then later for Stolliker, foreman of the pipefitters working on the turbine generator unit in the turbine room, to arrange to have the pipe unloaded. Both Morgan and Stolliker were under Kelley's supervision. During the day Smith, the erector for Westinghouse, told Foreman Stolliker that they should get the pipe unloaded. However, the pipe was not unloaded either that day or during the entire week, and the cars remained on the siding. Smith testified that they could have used some of the pipe "immediately, right after the unloading," specifically the seal oil treating piping which was to be used between the high pressure generator and the seal oil treating unit. That evening General Piping Foreman Kelley, who was also president of Re- spondent Local 636, called McCarthy, business manager of Respondent Local 636, and informed him that a carload of fabricated pipe had been shoved into the turbine floor earlier that night and that the car had a Westinghouse sign on it. 4. January 22-McCarthy calls Brown, United Engineers' construction manager; Smith calls Kelley On the morning of January 22, McCarthy telephoned to Brown, construction manager for United Engineers, and said, "Jerry, we are in serious trouble at River Rouge . . . you are in violation of your national agreement . you have got some pipe that just came in on the job there that we don't like" because "it wasn't fabricated in a UA shop." McCarthy stated that they were not going to unload the pipe, that they were not going to handle the pipe, and that he had "orders from Washington not to handle the pipe." After some discussion, McCarthy sug- gested that Brown send a wire to Respondent International in Washington, D.C., and request that an organizer be assigned to the job. Brown telephoned to Johnston, vice president of United Engineers with offices in Philadelphia, and informed him that Kelley refused to unload the pipe. John- ston told Brown to get McCarthy on the job, to arrange for Bradshaw, an Inter- national organizer, to be present, and to try to settle the matter at the job level. Brown thereupon sent a wire to Respondent International in Washington, D.C:, requesting the assignment of an organizer, and was informed by return wire of the assignment of Gene Bradshaw. Brown then got in touch with Bradshaw and arranged a meeting for January 24 at River Rouge. That afternoon, Lester Smith learned of the dispute over the pipe at a meeting held in Edison's downtown offices. Upon his return to River Rouge, Smith asked LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 251 "Foreman Stolliker why the pipe was not going to be unloaded. Stolliker replied that he did not know. Smith then called Kelley, general piping foreman and president of Local 636, and asked him the same question. Kelley stated that it would be easier to explain if he quoted from the agreement. Kelley then read the reservation paragraph of the fabricating clause in United Engineers' agreement to the effect that the pipefitters could refuse to handle prefabricated pipe which was not fabricated by members of the United Association receiving the prevailing building construction rates. Kelley also told Smith that the members had been discussing prefabricated piping at a previous meeting and that when the Westing- house pipe arrived on January 21 it was brought to his attention. As previously stated, the Westinghouse pipe was fabricated by employees represented by United Electrical, Radio and Machine Workers of America (U.E.). 5. January 24-Meetings between Respondents and United Engineers McCarthy and Bradshaw arrived at Brown's office about 9:30 a.m. on January 24, 1957. Brown and his assistant, Walter Oleksiak, were present. At Bradshaw's suggestion, Kelley was called into the office and remained during the meeting. Bradshaw was the chief spokesman for the Respondents; Brown was the chief spokesman for United Engineers. Bradshaw stated that United Engineers was in violation of its national agree- ment because the Westinghouse pipe which had recently arrived was "fabricated in a shop not manned by our people." Bradshaw added that while Respondent International had a gentleman's agreement with Westinghouse to make an exception in the case of pipe fabricated for a shop tested machine, Westinghouse had not lived up to its agreement.9 Bradshaw asked if the Westinghouse turbine was shop tested, and Brown replied that "it wasn't." Bradshaw then stated, "Well, we just can't go along with this . . . we are going to have to go the entire way, and also, Jerry [Brown], the agreement you have worked out with Tim McCarthy on the erection of the panel boards, we cannot go along with that." Brown wanted to know why he "picked this particular job to raise a fuss on" when Westinghouse units were being installed all over the country and United Engineers was doing nothing different from what it had done with respect to the units already installed at St. Clair and River Rouge. At that point Bradshaw stated that the International was not particularly worried about the two carloads of Westinghouse pipe nor about the Clement panel boards, that that was a minor issue, that what the International was really worried about was the piping to be used at St. Clair for Units Nos. 5 and 6, and that Edison had sought bids for the fabrication of the power piping for the St. Clair units from a concern which did not have a contract with the United Association. In response to Bradshaw's query as to the truth of the latter statement, Brown replied that it was true. Brown mentioned that the contractor's name was Spitzley and that he had heard that Spitzley would use Crane pipe. Bradshaw asked why Detroit Edison did not change its purchasing policy. Brown replied that as far as he knew Edison never changes its purchasing policy and that United Engineers had no control over purchasing. Bradshaw expressed a desire to see the two carloads of pipe and to go through the turbine house to see where the material was to be placed. Bradshaw, McCarthy, and Kelley left the room and made a thorough examina- tion of the pipe in the two cars. Oleksiak then took Bradshaw and McCarthy on a tour of the turbine house. In the afternoon Brown, Oleksiak, Bradshaw, and McCarthy met again, by pre- arrangement, in the lobby of the Detroit-Lelland Hotel in Detroit. Bradshaw stated that the pipe was in violation of Respondents' agreement with United En- gineers and that they were not going to handle the Westinghouse pipe nor the Clement boards unless they could have some assurances that Detroit Edison was going to buy piping for St. Clair "from a fair shop." Brown pointed out that United Engineers has a contract with Edison to erect the equipment and material purchased by Edison and that United Engineers has no control over Edison's pur- chasing policies. At that point, Walter Oleksiak entered the conversation and asked how they could give such assurances when "we are general contractors who erect only. We furnish nothing." Bradshaw replied, "Well, I know that, Walt, but if you could get from the purchasing department someone in whom you would trust to pass the word down to me, I am sure I would take it and return with that information and see what I could do about straightening out this piping on 9 There is no probative evidence in the record as to whether such an agreement in fact existed, and I make no findings in this respect. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Westinghouse." Oleksiak stated, "Gene, that's foolish. I don't know anyone in Detroit Edison. I am not employed by Detroit Edison. They couldn't tell me anything. How could I pass anything on to you? I am here to do a job, and that's all I am interested in. I can't get from any one of those an assurance that they will make their purchases to meet the agreement you talk about. That's impossible. We can't do it." Bradshaw replied that that was the situation and that they were not going to handle the Westinghouse pipe nor the Clement boards until the situation at St. Clair was cleared up. Oleksiak asked what could be done about unloading the two carloads of pipe, and pointed out that more was on the way. Bradshaw said that they could do nothing about it. Oleksiak then asked, "What are we going to do about St. Clair? There is going to be material coming on at St. Clair." McCarthy then spoke up and said, "I don't think we dare do anything. I don't think we are going to give you any men for St. Clair until this thing is squared away." McCarthy also mentioned some jurisdictional matters at St. Clair which he had previously discussed with Brown, and stated that he would not furnish any men at St. Clair or at Monroe, where the Enrico Fermi project was located.10 When it became apparent that no settlement could be achieved by the parties at the meeting, Bradshaw, at Brown's request, sent a telegram to Schoemann, gen- eral president of Respondent International, requesting that a meeting be arranged between Schoemann and Johnston, vice president of United Engineers. 6. January 28-Pipefitters stop working on crossunder "T" piece, hydrogen control piping and hydrogen coolers During the period from January 21 until noon of January 28, Foreman Stolliker and his crew of pipefitters were performing work on the turbine floor on the cross- under "T" piece, the hydrogen control piping and the hydrogen coolers, all part of the Westinghouse turbine Unit No. 2. After the lunch period on January 28, the men did not return to work on these jobs but were employed elsewhere on the project. Lester Smith, the erector for Westinghouse, asked Foreman Stolliker why they were not working on the Westinghouse equipment. Stolliker replied that he had received instructions from the Union "not to work on any more West- inghouse equipment until this difficulty with the piping was settled." Oleksiak visited the turbine floor that afternoon and asked Gene Weiss, piping superin- tendent for United Engineers, what had happened to the pipefitters working on the pipe. Weiss told him that the pipefitters had all stopped working on the pipe. Oleksiak then asked Smith what had happened. Smith related that the foreman had told him that they were not going to do anything until this meeting that was coming up in Washington. 7. January 29-Johnston calls McCartin of Respondent International On January 28, Brown, construction manager for United Engineers, telephoned to Johnston, vice president of United Engineers, and reported that he had been unsuccessful in settling the matter of the Westinghouse pipe with McCarthy and Bradshaw on the job level. On January 29, Johnston telephoned to John McCartin, assistant to the general president of Respondent International, and told him that "we have a problem out at River Rouge project, the Detroit Edison Company, in that approximately three cars of pipe have arrived at the job site, and the fitters refuse to unload the pipe." (Additional Westinghouse piping for Unit No. 2 had arrived on January 28 in a car which also contained turbine equipment). In reply to McCartin's query, Johnston stated that the cars contained fabricated pipe. McCartin there- upon told Johnston, "Well, you are in violation of your national agreement if you are bringing pipe on the job fabricated." McCartin also related the incident about a contractor by the name of Spitzley of Detroit seeking information from McCartin about the use of Crane pipe and that McCartin had to inform Spitzley that he had a local agreement and should be guided by it. Johnston then asked as a favor to him that the pipe be unloaded and placed in storage to avoid incur- ring demurrage charges and that the men resume work on the crossunder "T" piece so that they could continue with the erection of the turbine generator. Johnston also stated that he would like to arrange a meeting in Washington with 10 The findings with respect to the conversations at the two meetings are based on the undisputed testimony of Brown and Oleksiak. It is immaterial to a resolution of the issues in this case whether some of the conversations described in the text occurred in the morning meeting, as Brown testified, or in the afternoon meeting, as Oleksiak testified. LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 253 McCartin and Schoemann, general president of Respondent International, to discuss the matter. McCartin agreed to Johnston's request as a favor to him, and stated that he would get in touch with Gene Bradshaw. That day Johnston informed Brown of the results of his conversation with McCartin, and told him that "undoubtedly as soon as this reaches the field Mc- Carthy will call you to go ahead and unload the pipe." 8. January 30-Threeway-telephone conversation between Kelley, Oleksiak, and McCarthy; Westinghouse pipe is unloaded and work resumed on crossunder "T" piece About 8 a.m. on January 30, General Piping Foreman Kelley called Oleksiak, Johnston's assistant, and stated that he would try to arrange a threeway-telephone conversation between McCarthy, Kelley, and Oleksiak and "try to get this pipe thing settled." This threeway conversation was set up about 9:30 that morning. McCarthy began the conversation by telling Oleksiak, "Walt, here is what we are going to do on this pipe." McCarthy then stated that all Westinghouse pipe, including future shipments, would be unloaded in the yard; that any machinery or parts of machinery would be unloaded in the powerhouse; that the men would resume work on the crossunder "T" piece; and that as far as the rest of the West- inghouse piping is concerned, "We are not going to touch any of it until this meeting with Washington." In response to Oleksiak's query about the panel boards, McCarthy stated, "I have no information on the panel boards." Oleksiak said, "Okay, Tim," and thanked him. Oleksiak also asked Kelley if he had heard everything, and Kelley replied in the affirmative. That morning the pipe and equipment was unloaded and the men returned to work on the crossunder "T" piece, as McCarthy had promised. Foreman Stolliker appeared on the turbine floor and told Smith that the two carloads of pipe would be unloaded in the storage area of the River Rouge powerplant, that any other material normally handled by pipefitters would be stored indoors to protect it, and that the men would complete the work which they had stopped the preceding day on the crossunder "T" piece, but that no work would be performed on the hydro- gen control piping and the hydrogen coolers. Although the hydrogen control piping, which was part of the Westinghouse unit, came in straight lengths and was to be fabricated on the job site, the pipefitters did not resume work on this piping. 9. February 4-United Engineers tries to persuade Edison to modify its purchasing policy to enable United Engineers to "horse trade" with Respondents At a meeting held in Edison's office on February 4 and attended by Johnston, Henry Chance, president of United Engineers, and Walker Cisler, president of Edison, United Engineers tried to "prevail on the Detroit Edison Company to modify to a certain extent their purchasing policy" as regards a major item such as pipe, which historically has been the work of the United Association pipefitters. Johnston pointed out that in order to get the men to build the plants, United Engineers had to have agreements with the United Association, like any other contractor, and had to comply with those agreements. Johnston stated that he at least wanted to have something to offer the Union in a "horse trade" and be able to tell the Union not to be "concerned about St. Clair and all of this pipe, because heretofore all of that piping had been purchased in a UA shop." He pointed out that "gambling on his knowledge," a UA shop would in all' proba- bilities again be the low bidder, and asked that Edison "let me have that to trade with" the Union. Edison did not agree and told Johnston to settle River Rouge. 10. February 25-United Engineers meets with Respondent International in Washington, D.C. By prearrangement, Johnston and McCartin held a meeting in Washington, D.C., on February 25. Johnston was accompanied by Robert S. Cook, principal con- struction manager for United Engineers, and McCartin called in Lester Bilg, an International organizer. Johnston stated that he hoped they could reach a satis- factory solution of the dispute involving Unit No. 2 at River Rouge and that it was a serious ,problem because United Engineers "should be erecting the pipe in order to bring the unit on line according to schedule ." Johnston said that he wanted McCartin to "give orders to Gene Bradshaw to direct the fitters to erect the pipe." McCartin replied that Johnston knew that United Engineers was in violation of its agreement and that McCartin could not grant any exceptions. Johnston then explained the nature of United Engineers' contract with Edison, 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that "we [United Engineers ] do no purchasing . We do no engineering. We are only engaged as general contractors to take materials and equipment , engineering information that is furnished to us by Detroit Edison Company, and construct and build for them a plant so that, in effect , we have no control over this pur- chasing." McCartin replied that , "regardless," there was a violation of the agree- ment, that there was pipe on the job site under 2 inches in diameter which was not fabricated in accordance with the agreement , and suggested that as a member of the NCA [National Constructors Association] United Engineers take the mat- ter up with the NCA labor committee . Johnston also mentioned that he had been informed that there was some question about the erection of the Clement panel boards because of the small size of the pipe that had been installed on the boards, and explained that the Clement boards were included in the materials and equip- ment purchased by Edison. McCartin replied that "that's in the same category as the other pipe," that all pipe under 2 inches is to be fabricated on the job site. During the course of the meeting , McCartin also stated that Respondent Interna- tional had a gentlemen's agreement with Westinghouse but that Westinghouse had not lived up to that agreement. 11. Events between February 26 and March 8 On February 26 Johnston had a meeting with representatives of Edison at River Rouge and reported the results of his meeting with McCartin in Washington. Edison's representatives stated that they intended to instruct United Engineers to .proceed with the erection of the Westinghouse pipe, and that in time they would -release Clement on the delivery of the Clement panel boards and expect United Engineers to erect them. On March 1 , Brown, construction manager of United Engineers , telephoned to Johnston , and advised him of Edison's decision to proceed with a secondary boycott charge. Johnston instructed Brown to be in his office on March 4 to discuss the matter before any steps were taken. On March 4, Brown, accompanied by United Engineers ' attorney, came to Johnston's office in Philadelphia . Johnston testified that at that time "we were requested to sign the charge, and it was decided in my Company that we would not sign the charge." It was decided to arrange another meeting with Edison. Another meeting between representatives of United Engineers and Edison was accordingly held on March 8. Johnston again tried to persuade Edison to modify its purchasing policy, and urged Cissler, president of Edison, not to file a charge. Edison's representatives stated that Edison "had a purchasing policy"; that "they did not intend to change it in any way"; that this purchasing policy "would not be affected by any labor agreements the United Engineers might possess"; and that, as United Engineers "was unable to have the fitters erect the Westinghouse pipe, a charge would be filed with the National Labor Relations Board." After this meeting, Johnston , on the same day, ordered Brown "to proceed and request the fitters to erect the Westinghouse pipe," and to cooperate with Edison in the event a charge were filed. Questioned by the General Counsel as to whether he really wanted the Westinghouse pipe erected , Johnston replied, "cer- tainly we did" and that was his purpose in so instructing Brown. 12. March 12-General Superintendent Dallam orders foremen and some of their crew to work on Westinghouse pipe On March 12, there was a meeting in Brown's office of representatives and attorneys of United Engineers , Edison, and Westinghouse . United Engineers was represented at this meeting by Construction Manager Brown , his assistant, Walter Oleksiak, Dallam, general superintendent over the River Rouge project,, his assist- ant, Walter Hulse, and Piping Superintendent Weiss . There was a lengthy dis- cussion on the problem of getting the Westinghouse piping erected and the steps to be taken to that end. United Engineers had agreed to order the pipefitters to erect the Westinghouse pipe. As a result of this discussion, Brown directed Dallam to order Kelley, general piping foreman, to install the pipe . There was also a discussion as to the extent to which the order should be taken down to the rank and file, but the actual method of giving the order was left to Dallam's discretion. Dallam asked Bill Kelley to come to his office about 1:30 that afternoon. Hulse and Weiss were also present during the conversation with Kelley . Dallam told Kelley, "Bill, I have a problem , I have to get started on the erection of the Westinghouse piping. I have to do it today. I want you to start with the cross- under piping that is in the building there, and I want you also to start load cars with pipe in the field preparatory to having it pushed into the building tomorrow." LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 255 Kelley asked whether a settlement of the dispute had been made. Dallam replied that he knew no more about a settlement than Kelley did but that it was neces- sary that the erection of the pipe be started and that he was instructing Kelley to do it. Kelley said that he "couldn't say at that time whether he would or he would not do it; that he would have to consult the Hall." Kelley then called the union hall from Dallam's office and asked for Norman McShane, business agent of Local 636 and one of McCarthy's assistants. Kelley told Dallam that McShane was not there but would be back about 2:30; whereupon, Dallam agreed that Kelley should return at that time and try again. About 2:45 p.m. Kelley return to Dallam's office where Dallam and Hulse were present. Kelley called the union hall again and told McShane that Dallam had instructed him to start the erection of the Westinghouse pipe and asked whether "he shouldn't talk to Mr. McCarthy." Kelley told Dallam that he was told to talk to McCarthy who was available at the Park Sheraton Hotel in Washington, D.C. Kelley then telephoned to McCarthy, also from Dallam's office, and stated that Dallam had told him to start that day erecting the Westinghouse pipe, to start with the crossunder piping and to bring the piping from the cars in the field. Kelley asked what he should do. Upon concluding his telephone conversation, Kelley told Dallam that McCarthy knew of no settlement and had said that "nothing should be done until a meeting had been set up between Gene Bradshaw and United Engineers' personnel in Washington." Kelley also said that "he wouldn't say he won't erect the pipe," that "they would do it in the near future," and that if Dallam wished he "could fire him." Kelley did not comply with Dallam's orders to start erecting the pipe that day. Dallam told Kelley that "it was going to be necessary for me to go further; that I was going to have to talk to his [Kelley's] foremen, and his rank and file and issue the same orders." Kelley made no objection. Dallam and his assistant, Hulse, immediately went to Kelley's office where they found Yard Foreman Morgan and Turbine Room Foreman Stolliker, both under the supervision of Kelley who was also present. In Kelley's presence, Dallam told Morgan and Stolliker that "I was going to have to ask them to erect the Westinghouse pipe, starting with the crossunder that was in the building, and I wanted the piping in the field loaded on cars so it could be pushed into the turbine room the following morning." Dallam then first asked Morgan if he would do it. Morgan replied, "not unless it would first be broken down." Morgan "also said that if he was instructed by his union, he would install it." At that point, Kelley stated, "you don't have to give him any reasons. You can just say it will be done in the near future." The phrase "broken down" is used in the pipefitting trade to describe the process of cutting loose or separating the branches and the joints or parts of the pipe which are already attached to other piping so that one piece might become a number of smaller pieces, in this case 21/2 inches or less in diameter, and would then have to be refabricated. Dallam then repeated to Stolliker the same instructions concerning the erection of the Westinghouse pipe, and asked Stolliker, "will you do it?" Stolliker shook his head. Dallam then asked, "if you won't do it, why?" Stolliker did not answer. Dallam then asked, "is it because it is Westinghouse pipe?" Stolliker nodded, "yes." Dallam then asked Stolliker if he would do it if he were in- structed by the Union. Stolliker nodded, "yes." Once again, Kelley stated that "they need not give any reason. All they needed to do was to answer that they would do it in the near future." Neither Morgan, Stolliker, nor Kelley complied with Dallam's detailed instruc- tions to start work that day on the Westinghouse pipe. Dallam told Kelley that he was going to talk to a few more of Kelley's men in the turbine room. Dallam had decided to give the same instructions to some of the rank-and-file pipefitters and to ask them if they would do the work. When Dallam and Hulse arrived on the third floor of the turbine room, they met Stol- liker who introduced Dallam to the three nearest pipefitters in Stolliker's crew and stated that Dallam was going to ask them some questions. The three pipe- fitters, R. Evans, E. Evans, and Nicholson, were standing in a very close group, within elbow reach of each other. Dallam looked at each of the three pipefitters as he spoke and stated that he wanted them to start working on the Westing'ouse pipe, repeating in detail the identical instructions he had previously given to the foremen. Dallam then asked each of the three pipefitters, in turn, "will you do it?" E. Evans, R. Evans, and Nicholson each, in turn, replied, "No, unless I am instructed to do so by the union." Stolliker then looked at the men and stated that Dallam had "asked me that, too." The three pipefitters did not work on the Westinghouse pipe. 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dallam then returned to Brown's office, where the meeting between United Engineers , Edison, and Westinghouse was still in session , and reported what had taken place. As a result of some further discussion, Dallam was instructed to talk to all the pipefitters in the same manner. That evening, a list of all the pipe- fitters, according to their foremen, was prepared by Hulse. 13. March 13-Dallam tours the plant and polls the pipefitters On the morning of March 13, Dallam, Hulse, and Kelley toured the entire plant and visited every gang of pipefitters working in accessible places. Hulse had some worksheets which contained the names of each foreman and the men working under them. Dallam spoke to each of about 80 pipefitters, individually, in the presence of Hulse and Kelley." Dallam had a piece of scrap paper on which he had written the following three questions, which had been decided upon at the meeting in Brown's office the preceding day: (1) We want you to erect the Westinghouse pipe-will you do it? (2) If not, why? (3) If the union OK's it will you erect the Westinghouse pipe? Kelley introduced Dallam to each foreman and told each foreman that Dallam had questions he wanted to ask his men and to call those nearest over so that Dallam could speak to them. Dallam credibly testified, without contradiction and was corroborated by Hulse, that he told each pipefitter "exactly this: `I want you to erect the Westinghouse pipe. Will you erect it?' " After the pipefitter's re- sponse, Dallam asked the other questions listed on his paper. He repeated this procedure about 80 times in the presence and hearing of Kelley and Hulse. All pipefitters answered the first question in the negative. In response to the second question, the pipefitters variously stated, in substance, that they would require the approval of the business agent or of their foreman, or instructions from the Union or the Local.12 All pipefitters answered the third question in the affirmative. The pipefitters made their responses in substantially the same words and terminology because, as Dallam testified , "what ordinarily happens in a case like this, and what happened at this time, as the word spreads ahead of a trip like ours the boys know what the answers are, and they stick pretty well to the form." 13 Questioned by the General Counsel as to whether he really wanted the pipe- fitters to erect the Westinghouse pipe when he made that statement to each of the approximately 80 pipefitters, Dallam replied, "I most emphatically did and do." However, none of the pipefitters worked on the Westinghouse pipe which Dallam had stated he wanted them to erect. The work on the crossunder piping was not resumed; nor was the pipe in the yard unloaded. 14. March 13-14-Brown requests Local 636 for additional pipefitters to erect Westinghouse piping On March 13, after the conclusion of Dallam's tour of the plant, hereinabove described, Brown telephoned to Norman McShane, business agent of Local 636 u Kelley was not present when Dallam spoke to the first pipefitter. The reason given by one pipefitter was that it was not according to the agreement. 13 Diy findings as to the responses made by the pipefitters are based upon a report pre- pared by Hulse under the following circumstances and received in evidence over Respond- ents' objections : Hulse wrote down on his worksheets, opposite the name of each pipefitter , "the gist of the reply to each of the 3 questions" at the time Dallam asked the questions. At the conclusion of the tour, Hulse returned to his office and immediately made up a list of the pipefitters as they appeared on the payroll, with three columns paralleling the list of pipefitters, each column headed by one of Dallam's questions . Then, with the 'aid of his worksheets , he put down in each column, opposite the name of the respective pipefitter, the substance of the respective pipefitter's replies to Dallam's three questions. When this report was completed , Hulse threw away the worksheets which "was just more or less scrap paper." Hulse and Dallam identified this report and testified in detail concerning its source and the manner in which it was prepared. At the hearing , neither Dallam nor Hulse had any independent recollection of the replies given by the 80 pipefitters; without reference to this report. The Respondents offered no testimony to dispute the fact that the statements contained in the report represented :the substance of the pipefitters ' replies' to Dallam's questions . Under all the circumstances , I am of the opinion, contrary to the contentions in Respondents ' brief, that this report is admissible as a past recollection LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 257 and one of McCarthy's assistants. Brown told McShane that "we are away behind on this No. 2 unit, and the Westinghouse piping must be erected." Mc- Shane replied that there was a dispute over that piping but that he did not know much about it. Brown stated that since the men on the job would not erect the Westinghouse pipe, "I am ordering 12 men and a foreman to report here and start erection." 14 Although McShane stated that he would make a note of the request, Brown did not regard McShane's statement to indicate an agreement to send the men. McShane admitted at the hearing that he did nothing about Brown's request because he "knew that the UA and 636 was in some trouble with West- inghouse pipe, and it was lying out in the field," and that that was the real reason he did not furnish any men. After some equivocation, he also testified that "I did not have any men to send him anyway." The next day, March 14, Brown sent a letter to McShane, confirming the tele- phone conversation of the preceding day and again requesting 12 pipefitters and a foreman to work on the Westinghouse pipe because "the pipefitters on the job who are members of your local have refused to do this work." No men were ever furnished pursuant to this request. 15. March 26-Smith asks Stolliker to have pipefitters remove certain pipes; Stolliker refuses after consulting Kelley On March 26, Lester Smith, erector for Westinghouse, asked Foreman Stolliker if he would remove certain pipes connected to the thrust bearing so that the mill- wrights could, in turn, remove the covers from the thrust bearing preparatory to the alignment of the high pressure spindle on Westinghouse Unit No. 2. When Stolliker remained silent, Smith asked if he wished to talk to General Piping Fore- man Kelley. Stolliker replied in the affirmative and left the turbine room floor to confer with Kelley. About one-half later, Stolliker returned and told Smith that the pipefitters would not remove the pipe. 16. Events in April-Brown's request for additional pipefitters is withdrawn; arrange- ment to maintain status quo On April 15, Brown informed Vice President Johnston of the former's verbal and written request of Local 636 to furnish additional pipefitters to erect the Westinghouse pipe. Brown also stated that he had been instructed to write a letter to Respondent International, requesting pipefitters. Johnston told Brown not to do it, that he did not approve of Brown's letter of March 14 to the local, and that he wanted the letter of March 14 withdrawn and to make certain that Brown wrote no further letters. Johnston also stated that he was under considerable pressure from the National Constructors Association, the United Association, and the suit the United Association had brought against the United Engineers in Phila- delphia. The latter statement had reference to a civil suit for breach of contract. On April 16, Brown wrote a letter to McShane, withdrawing the letter of March 14. On April 23, United Engineers entered into an arrangement with United Asso- ciation to the effect that United Engineers would not press the Union to erect the pipe in dispute, or the panel boards, until a hearing had been held in Philadelphia on the civil suit brought by United Association against United Engineers for breach of contract.15 The following day, Johnston informed Brown of this arrangement and told Brown not to press Local 636 or the men on the job to erect the West- inghouse pipe or the Clement boards, nor to request pipefitters at St. Clair, until the matter was settled in the Philadelphia suit. Brown informed Dallam of this arrangement, and Dallam, in turn, relayed these instructions to the superintendent at St. Clair. recorded, and I regard its content of sufficient probative value to warrant the findings made in the text. Wigmore On Evidence, 3d ed., p. 64, sec. 734; pp. 78-100, sees. 744-755. 1a The agreement then in effect between United Engineers and Respondents provides that "initial requests for the furnishing of journeymen and apprentices shall be made to the Local Union. . " and that the "Union agrees to furnish at all times to the Employer duly qualified journeymen and apprentices in sufficient number as may be necessary to properly execute work contracted for by the Employer. . . . 1 This suit was still pending at the time of the hearing in this proceeding. 508889-60-vol. 123-18 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 17. May 10-McCarthy gives the order to resume work on the Westinghouse pipe On May 9, during the course of a hearing in the Federal district court on the Board's petition under Section 10(1) of the Act for a temporary restraining order against Respondents , Judge Thornton indicated to the parties his intention to grant the Board's petition. The next morning , May 10, Martin O'Donoghue , counsel for Respondents , stated in open court, "may it please the Court , I just want to begin this session with a happy note , at any rate, that the pipefitters are working on the pipe that we are litigating . Mr. McCarthy gave the order, and he is also here as a witness." 16 That same morning, Kelley called Dallam and stated that "they were going to go back to work." Kelley also called Smith, informed him that the "pipefitters would install the Westinghouse pipe," and asked what pipe Smith wanted installed first. After Smith explained what piping he would like to have them work on and the order of the work, Kelley "indicated that would be done." 18. May 20-Agreement between Respondent International and United Engineers By prearrangement , United Engineers and Respondent International held a meet- ing on May 20, 1957. Respondent International was represented by General President Schoemann, Assistant General President McCartin , and Attorney O'Don- oghue; United Engineers was represented by President Chance, Vice President Johnston, and Attorney Layden . As a result of this meeting , the parties executed a memorandum of agreement , in which Respondent United Association agreed, through its Local 636 , to furnish the men necessary to complete the work on Units 2 and 3 at River Rouge including the Clement panel boards and the prefabricated pipe purchased by Edison from Allis-Chalmers for Unit No . 3; and United Engi- neers agreed not to request pipefitters from the United Association or any of its locals for the St. Clair project nor to request any subcontractors on the job to do so, nor to transfer pipefitters from River Rouge to St . Clair, until United Engineers could assure United Association that Edison will abide by the terms and conditions of the agreements between United Enginees and United Association. The full text of its agreement is set forth below." The record shows that at all 11 On May 17, 1957, the United States District Court for the Eastern District of Michigan, Southern Division , Civil Action No. 16586, entered an Order Granting Temporary Injunc- tion against Local 636 and its Agents Kelley and McCarthy. 17 UNITED ENGINEERS AGREED : 1. That it intends ( a) to live up to the terms and conditions of the existing col- lective bargaining agreement between the United Association and the National Con- structors Association ( hereinafter called "National Constructors ") and (b) to be bound by the interpretations of that agreement as set out in the stipulation of Mar. 27, 1957 , and (c ) to the terms and conditions of the agreement to be reached in the current negotiation between United Association and National Constructors ( all of which hereinafter to be called the "aforesaid agreements"). 2. That at the St. Clair project of Detroit Edison , United Engineers will not request pipefitters from United Association or any of its local unions nor will United Engineers request any of the subcontractors on the job to do so, nor will United Engineers transfer any pipefitters from River Rouge to St . Clair, until such time as United Engineers can assure United Association that Detroit Edison has agreed that it, as well as United Engineers , will abide by the terms and conditions of the aforesaid agreements. 3. To advise Detroit Edison in writing of its intention to live up to all of the terms and conditions of all the aforesaid agreements on any work performed for Detroit Edison -at any other job site other than at River Rouge units 2 and 3. At River units 2 and 3 the agreement is covered by para 4 below. UNITED ASSOCIATION AGREED: 4. That the United Association through its Local No. 636 will furnish the men necessary to complete the piping work at units 2 and 3 of the River Rouge project of Detroit Edison including the installation of the present control boards purchased by Detroit Edison and the prefabricated pipe purchased from Allis Chalmers for Detroit Edison. 5. In the collective bargaining agreement which is now being negotiated between the National Constructors Association and the United Association , United Engineers LOCAL 636 , PLUMBING AND PIPE FITTING INDUSTRY 259 times material herein the employees engaged in the fabrication of pipe at Clement and Allis-Chalmers have been represented by other labor organizations than the United Association or its locals. Thereafter, Johnston explained the terms of this agreement to Brown, and in- structed him not to call the union hall for pipefitters for Edison 's St. Clair and Enrico Fermi projects and not to ask any subcontractors to do so. Brown , in turn, transmitted these instructions to the superintendent at St. Clair and at Monroe, where the Enrico Fermi project was located. A copy of the agreement was also transmitted to Edison . As a result of this agreement, Edison canceled United Engineers' contract at St. Clair by letter dated June 11, 1957. 19. Incidents involving DiDuca Brothers DiDuca Brothers of Port Huron , Michigan , had a contract with Edison for some temporary plumbing work at St. Clair . Some work had been performed at St. Clair by DiDuca Brothers as early as April 1956. In April 1957 , Edison called Mr. DiDuca , president of DiDuca Brothers, about unloading some feed water heaters which had arrived at St. Clair , and suggested that DiDuca use six men for the job . At that time , DiDuca had completed his work at St . Clair and had no men working on the job site . As the unloading of the heaters was pipefitters' work and as St. Clair came under the jurisdiction of Local 636, it was necessary for DiDuca either to obtain pipefitters from Local 636 or to get approval from Local 636 for the use of pipefitters employed else- where by DiDuca. Accordingly, DiDuca called McCarthy about obtaining these pipefitters . McCarthy stated that he would not be able to supply the men because there was a jurisdictional dispute on the job, and told DiDuca not to put any men on the job until the jurisdictional dispute was straightened out. DiDuca reported the results of this conversation to Edison. On April 5 Edison called Brown and stated that, inasmuch as the Union was refusing to let DiDuca unload the heaters , United Engineers should call the Union and insist that the Union man the job in accordance with the terms of their national agreement . At that time there were no pipefitters on the St. Clair job doing any kind of work. Brown sought Johnston's advice; Johnston informed Brown to call Local 636 and tell them to live up to their agreement to man the job. Brown thereupon called McCarthy and asked him to send some pipefitters to un- load the heaters . McCarthy refused to send any men until "you get the jurisdic- tion straightened out." McCarthy mentioned various disputes concerning jurisdiction of work. Sometime in May, DiDuca again called McCarthy to find out if they were going to supply men for the St. Clair job, and asked if "the job was to go ahead." McCarthy replied that "he couldn't say anything because the injunction hadn't been clarified," and that when it was, McCarthy would call him . In the latter part of May, Edison asked DiDuca if he could go to work on the job and furnish pipe- fitters. DiDuca replied that "we couldn 't go on the job" because "we hadn't gotten any word that we could." McCarthy never called DiDuca, and no pipe- fitters were supplied for the job. 20. Incidents involving J. W. Partlan Company On June 21, 1957 , Edison authorized and directed the J . W. Partlan Company of Detroit, Michigan, herein called Partlan , to proceed with certain plumbing and miscellaneous piping work at St. Clair . By prearrangement, Myles Scott, Edison's will be entitled to no better nor any worse terms and conditions than any other contractor covered by the National agreement of United Association. UNITED ENGINEERS AND UNITED ASSOCIATION MUTUALLY AGREED : 6. That this agreement is freely and voluntarily made by the parties hereto and each recognizes the legitimate objectives and problems of the other and mutually pledge themselves as reasonable men to carry out those objectives and solve those problems. 7. That this agreement has been made and executed with the intent of carrying out the terms and conditions of the injunction entered by Judge Thornton and is not made with any intent to evade or defeat any term or provision of that injunction. Fully realizing that the agreement of the Union to perform certain work as set forth herein goes beyond the terms of the injunction , this agreement is made and entered into with the sincere effort on the part of both parties to amicably settle and adjust any and all controversies. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD field representative, met Mr. Link, president of Partlan, at the construction office of the St. Clair powerplant on June 23. Scott asked Link if he could get some men on the job to move some heaters to the construction area. This was a job for pipefitters. Link said he would bring five men to the job on Monday morn- ing, three pipefitters and two plumbers. Scott explained about Edison's difficulty in getting pipefitters to work on the St. Clair project and about the refusal of the business manager of Local 636 to furnish pipefitters to DiDuca Brothers for the St. Clair project. Link replied that he would use his own men and go to Local 636 only if more men were required. On Monday morning, June 24, Link arrived at St. Clair with two plumbers. Meanwhile, Alvin McShane, in charge of the outside work for Partlan, who had been ill the preceding week, first became aware of the work for Edison at St. Clair when he arrived in the office Monday morning and was informed about it by Bertoncin, secretary-treasurer for Partlan. McShane told Bertoncin that he had'. heard that there was a jurisdictional dispute at St. Clair involving plumbers. In. keeping with Partlan's policy of not doing any work on a job where a jurisdic- tional dispute was involved, Bertoncin called Link by telephone and reached him: just as he arrived at the St. Clair job site. Bertoncin told Link that there was a jurisdictional dispute at the project and not to start the men to work until they could find out what the dispute was about. Link turned to the two men with him- and said, "You boys can't go to work." Later in the day, McShane, Bertoncin and Link met with McCarthy in the latter's office. McCarthy told them that there were jurisdictional disputes at the St. Clair projects and mentioned several. McCarthy made it clear that Partlan should not assign any pipefitter there. As of the close of the hearing in this proceeding, Partlan had not performed any work at the St. Clair project. B. Conclusions with respect to conduct constituting a violation of Section 8(b) (4) (A) 1. The status of McCarthy and Kelley At all times material herein, United Engineers and Respondent International had a written collective-bargaining agreement under which Respondent International is recognized as the sole and exclusive bargaining representative for all journeymen pipefitters and apprentices, and all pipefitting work is to be performed by journey- men pipefitters and apprentices who are members of the Respondent International, including foremen. It is apparent from the terms of the agreement and the events which transpired in connection with the Westinghouse pipe, that the agreement is administered in the first instance by agents of the Local Union in the territory where United Engineers is performing the work, in this case Local 636, and in the second instance by agents of Respondent International. Under the fabrication clause in effect at all times material herein (section III. A. 5, supra), "it is under- stood by the Parties of this Agreement," that where pipe of 21/z inches and over in diameter is fabricated away from the job site, the fabrication must be performed in the plant of an employer, "employing Journeymen of the United Association at the prevailing building construction wage rates in effect wherever the employer's plant may be located." The reservation paragraph of the fabrication clause gives the "Local Unions of the United Association" the right to refuse to handle, erect or install prefabricated pipe sent to the job which has not been fabricated in accordance with the above terms. At all times material herein, McCarthy, a Respondent herein, was and is busi- ness manager of Local 636 and, under the terms of the constitution of the Re- spondent International, was and is an officer of the Local. At all times material herein, Bill Kelley, a Respondent herein, was and is general piping foreman of United Engineers and president of Local 636. The following are some of the relevant provisions of the constitution and bylaws of the Respondent United Association: It shall be the duty of every Local Union, District Council, and members of the United Association to make it generally known to the entire membership of the United Association, that all piping, pipe fittings, fixtures and equipment fabricated and processed in a plant, shop or establishment away from the job site shall be prepared by only members of the United Association and shall be installed by U.A. members. (Sec. 11(i)). It is his [the Business Manager's ] solemn duty and obligation to vigilantly protect the trade jurisdiction of 'the United Association in the plumbing and LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 261 pipefitting industry of his locality; also to compel employers to observe and respect collective bargaining agreements . . . (Sec. 101). He [the President of the Local] shall have general supervisory control over all matters pertaining to the welfare of the Local Union (Sec. 99). The ritual of the United Association, proscribed by its constitution, requires each member of a Local Union to take an oath whereby he promises and pledges that he is familiar with, subscribes to, and agrees to remain loyal and true to, and to be bound by, the provisions and requirements of the Constitution of the United Association (p. 132). The constitution further requires each officer of a Local Union to take an additional oath whereby he further pledges and promises that he is familiar with the provisions and requirements of the constitution and bylaws ,of the United Association and will, to the best of his ability, perform the duties ,of his office, as laid down in the constitution and bylaws of the United Association (section 126). The constitution also provides for the removal of an officer of a local Union "for just cause," upon charges preferred by any member of the United Association having personal knowledge of the offense (sec. 127), and for the fining, suspension, or expulsion of any member of the United Association who breaks his obligation to the United Association or any of its Locals, upon charges preferred by any member having personal knowledge of the offense (sections 212 .and 213). The general president of the United Association is also empowered to suspend any Local Union for violations of the laws and Constitution of the United Association (section 89). McCarthy's participation in the events previously described,. and his instructions to Kelley in connection with the installation of the Clement panel boards and the Westinghouse pipe, as hereinafter detailed, make it clear that he was acting to implement the rules set forth in the Constitution of the United Association and his obligations in connection with the administration of the contract beween United Engineers and United Association. In view of such conduct, the relevant pro- visions of United Association's Constitution and bylaws hereinabove mentioned, and the contract between United Association and United Engineers, I find upon the basis of the entire record that, in dealing with these issues, McCarthy was acting as an agent, within the meaning of Section 2(13) of the Act, both of his direct employer, Respondent Local 636, and of Respondent United Association.18 Kelley is the general piping foreman with approximately 18 piping foremen under his supervision, all required to be members of Local 636. Through these foremen, Kelley is charged with the detailed supervision of the pipefitters in the handling and erection of the pipe. It is clear, and I find, that Kelley is a super- visor within the meaning of the Act. Kelley's obligations as a member and officer of Local 636 are prescribed in the constitution and bylaws of the United Association, as previously set forth. That he acted in furtherance of these obligations in connection with the issue of the Westinghouse pipe is apparent from the record. Moreover, McCarthy testified that Kelley takes instructions from McCarthy in matters involving the Local. Thus, as previously found, early in January 1957, when McCarthy gave his clear- ance for the installation of the Clement panel boards, Kelley informed Construc- tion Manager Brown the very next day that McCarthy had been in touch with him and that "we are all set on the panel boards." When the carloads of West- inghouse pipe arrived on January 21, Kelley immediately informed McCarthy about it that evening. On January 22, when Smith, erector for Westinghouse, asked Kelley why the pipe was not being unloaded, Kelley replied by reading the reservation paragraph of the fabrication clause in the contract between the United Association and United Engineers, and informed Smith that the members of the Local had been discussing prefabricated piping at a previous meeting. It was at the suggestion of Bradshaw, an organizer and officer of the International, that Kelley was called into the meeting between McCarthy, Bradshaw, Brown, and Oleksiak on January 24. At this meeting the position of the United Association and the Local not to handle the Westinghouse pipe or the Clement boards was made clear. It was Kelley who arranged the threeway telephone conversation between McCarthy, Oleksiak, and Kelley on January 30, at which time McCarthy informed Oleksiak of what work the pipefitters would perform, as outlined by McCartin to Johnston the preceding day. Kelley then instructed Foreman Stol- liker to perform the work which McCarthy had indicated in the threeway tele- Is Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL, et at. (Sand Door & Plywood Co.), 113 NLRB 1210, 1213, 1229, enfd. 241 F. 2d 147 (C.A. 9). 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD phone conversation that the pipefitters would perform. On March 12, when Brown told Kelley to start work on the Westinghouse pipe that day, Kelley replied that he would first have to call the union hall. Kelley then telephoned to McCarthy in Washington, D.C. and, after relating Brown's instructions, asked what he should do. When McCarthy told Kelley that there had been no settlement of the issue involving the Westinghouse pipe and that nothing should be done until a meeting had been held between United Engineers and United Association in Washington, Kelley refused to comply with Brown's instructions even if he were to be dis- charged. When Foremen Stolliker and Morgan refused to comply with Brown's identical instructions, stated in Kelley's presence, Kelley told Stolliker and Morgan that they did not have to give any reasons but merely to state that it would be done in the future. Finally, on May 9, when Attorney O'Donoghue announced in the Federal district court that McCarthy had given the orders for the pipefitters to work on the disputed pipe, it was Kelley who called General Superintendent Dallam that same morning and announced that the "pipefitters would install the Westinghouse pipe." The record leaves no doubt that when the responsibilities flowing from Kelley's relationship to Local 636 and the United Association ran counter to the duty he owed his employer, United Engineers, to have the pipefitters work on the West- inghouse pipe, he gave primary importance to his union obligations. It is there- fore clear, under all the circumstances, that, with regard to the Westinghouse pipe, Kelley, like Foreman Steinart in the Sand Door case 19 and Foreman Trustworthy in the Booher Lumber Co. case,20 was acting not as a representative of manage- ment but as an instrumentality of the Respondents through whom the constitution and bylaws could be enforced. Upon the entire record considered as a whole, I find that in dealing with the issue of the installation of the Westinghouse pipe, Kelley was carrying out union rules, in accord with his union obligations and upon the instructions of Business Manager McCarthy, and that he was therefore an agent within the meaning of Section 2(13) of the Act of each of the three Respondents, United Association, Local 636, and Business Manager Tim McCarthy. 2. Inducement or encouragement by Kelley As previously found, on March 12, Dallam, general superintendent for United Engineers over the River Rouge project, told Foremen Morgan and Stolliker, who were both in Kelley's office at the time, that he wanted them to start erecting the Westinghouse pipe and detailed the specific work to be done. Each refused. The implication of Morgan's reason was that the pipe was prefabricated; while Stolliker indicated that it was because it was Westinghouse pipe. Each indicated that he would install the pipe, as requested by Dallam, if he were requested to so by the Union. Kelley, who was present throughout this incident, remained silent until Morgan and Stolliker indicated that they would erect the pipe if instructed to do so by the Union. At that point, Kelley told them that "you don't have to give him any reasons. You can just say it will be done in the near future." Stolliker worked with a crew of about 12 pipefitters in the turbine room. Mor- gan worked in the yard, presumably with a crew. Pipefitters are skilled craftsmen. Stolliker and Morgan were under the supervision of Kelley who, in turn, was under the supervision of Gene Weiss, piping superintendent. Although Stolliker and Morgan bore the title of foremen, there is no showing that either possessed the authority to perform any of the functions required to constitute them as super- visors within the meaning of Section 2(11) of the Act. Accordingly, I find that they are not supervisors within the meaning of the Act. As members of Local 636, Stolliker and Morgan were obligated to be familiar with, and to be loyal to and bound by, the provisions and requirements of the constitution of the United Association, including the requirement that piping fabri- cated in a plant away from the job site "shall be prepared by only members of the United Association," and the penalty of a fine, suspension, or expulsion for breaking their obligation. The issue of prefabricated pipe had been discussed at an earlier union meeting. They knew that Kelley was president of their Local and also the general piping foreman from whom they normally took instructions. They also knew that it was a most unusual procedure for such instructions to be given to them by Dallam, rather than by Kelley. Under the circumstances, Kel- 19 Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL, et al. (Sand Door & Plywood Co.), 113 NLRB 1210, 1213, enfd. 241 F. 2d 147, 156 (C.A. 9). 20Local 1016, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, et al. (Booher Lumber Co. Inc.), 117 NLRB 1739. LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 263 ley's failure to confirm Dallam's instructions could not help but indicate to them that Kelley was not in favor of having the work done. That Kelley was acting in this respect in his capacity as president of Local 636, was also apparent to them from his failure to tell them to do the work after they indicated that they would do it if instructed by the Union. For Kelley represented the Union to them. Finally, implicit in Kelley's advice that they did not have to give any reason but need only say that they would do it in the near future, was an affirma- tive direction not to do the work at that time. Since Kelley's position was con- trary to that of his superior, it was equally clear that such direction was being given by Kelley in his union capacity. On March 13 Kelley accompanied Dallam on a tour of the plant during which Dallam told approximately 80 pipefitters, individually, that he wanted them to erect the Westinghouse pipe and asked if they would do it, as previously found. Each pipefitter replied, in effect, that he would not do the work unless instructed to do so by the Union or his foreman. To the pipefitters, Kelley stood in the posi- tion of their foreman and their union. Under these circumstances, and in view of the unusual situation whereby Dallam, rather than Kelley, was asking them to do the work, Kelley's silence could not help but indicate that his position was opposed to that of Dallam's. Since it was obvious that Kelley would not be defying his superiors in this manner in his capacity as a management representa- tive, it was equally clear to them that Kelley was acting in his union capacity. As in the case of the incident of the preceding day, I find that, under all the circumstances, Kelley's conduct during the polling episode indicated to the men that Kelley, acting in his union capacity, was unwilling to have them work on the Westinghouse pipe, and "was certainly no more subtle than `a nod or a wink.' " 21 Respondents' contention in their brief that Dallam's statements did not consti- tute a request to perform the work because made upon the advice of counsel, is clearly without merit. The fact remains that Dallam made it clear to the men that he wanted them to perform the work, and they refused. Moreover, Dallam, who was a very credible witness, emphatically testified that he did in fact want the work done and that otherwise he would not have undertaken such a disagree- able chore. Moreover, he further credibly testified that if he had not been in- structed by Brown to order the men to do the work at that time, he would have undertaken to do so of his own accord because "at that time were were considerably behind our schedule." Nor is there any merit to Respondents' further contention that there was no inducement to concerted action because in conducting the poll Dallam spoke to the pipefitters individually rather than as a group. The Board has held, under similar circumstances, that it would be manifestly unrealistic to view each incident in isolation but that the total pattern of Respondents' conduct must be taken into consideration.22 As Dallam testified, "as the word spreads ahead of a trip like ours the boys know what the answers are, and they stick pretty well to the form." Viewing the total activities, I am convinced and find that Kelley's conduct was aimed at inducing all the pipefitters to take the same kind of action, that is, to refuse to work on the Westinghouse pipe. Upon the basis of the entire record, and in view of the provisions of United Association's constitution and bylaws previously set forth, I find that Kelley's conduct on March 12 and 13, 1957, described above, constituted inducement or encouragement within the meaning of Section 8(b) (4) (A). 3. Respondents' unlawful objectives Respondents contend that they had no unlawful objective but that this was merely a primary dispute with United Engineers arising out of the latter's violation of the fabrication clause of the contract under which Respondent International and its affiliated Local Unions were granted the right to perform all fabrication of pipe on any job undertaken by United Engineers. However, the fact remains that the target of Respondents' conduct was the use of pipe fabricated by non-UA members and that United Engineers, as well as Edison, were the innocent victims of this course. The Westinghouse pipe was fabricated by employees who were neither members of, nor represented by, any Local of the United Association. Thus, on the morning of January 22, 1957, McCarthy told Brown that they were "in serious trouble," that some pipe had just arrived on the job "that we don't like" ' Booher Lumber Co. case, supra, at footnote 9. 22 Direct Transit Lines, Inc., 92 NLRB 1715, 1721 ; United Brotherhood of Carpenters and Joiners of America, et al. (Wadsworth Building Company ), 81 NLRB 802, 818, enfd. 184 F. 2d 60 (C.A. 10 ) ; Amalgamated Meat Cutters, etc. v. N.L.R.B., 237 F. 2d 20, 24 (C.A., D.C.). 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because "it wasn't fabricated in a UA shop," and that he had "orders from Wash- ington not to handle the pipe" for that reason. That afternoon when Smith asked Kelley why the Westinghouse pipe was not being unloaded, Kelley read the reserva- tion paragraph of the fabrication clause in the contract to the effect that the pipefitters could refuse to handle prefabricated pipe which was not fabricated by members of the United Association receiving the prevailing building construction rates. Kelley also told Smith that the members had discussed the matter of pre- fabricated pipe at a previous union meeting. At the meeting of January 24, Inter- national Organizer Bradshaw, an officer of the United Association according to its constitution, told Brown that the pipefitters would not erect the Westinghouse pipe because it "was fabricated in a shop not manned by our people." That Respondents were not solely concerned with any contract violations as such, is also apparent from the fact that they would not agree to permit the resumption of work on the hydrogen control pipe, which had arrived in straight lengths, with all processing and fabrication still to be done at the job site exactly as set forth in the contract. Nor had there ever been any prior claims of a contract violation with respect to the installation of prefabricated pipe at Units 1, 2, 3, and 4 at St. Clair, although about 9 percent of the prefabricated pipe installed at each of those units was piping under 21/z inches in diameter, and the piping of larger diameter was in some instances prefabricated in a non-UA shop. Furthermore, United Engineers made it perfectly clear to Respondents, to no avail, that United Engineers itself made no purchases and had no control over where the pipe was to be purchased by Edison. United Engineers was thus a neutral party in this respect. It could not resolve the dispute by purchasing pipe from a United Association shop. It could resolve the dispute only by not handling or using the Westinghouse pipe purchased by Edison, by prevailing upon Edison to purchase piping fabricated in a United Association shop, or by ceasing to do business with Edison. Thus, in this situation, United Engineers in reality occupied the status of a secondary employer and Westinghouse occupied the status of a primary employer. And it is clear that at least one of the objects of Respondents' conduct was to force or require United Engineers to cease handling or using a product of Westinghouse because that product was not fabricated by employees represented by a Local of United Association. Although no active dispute existed between Respondents and Westinghouse, such conduct has nevertheless been held by the Board and the courts to constitute a secondary boycott of the type proscribed by Section 8(b) (4) (A) of the Act 23 Moreover, the record establishes the existence of still other objects of the Respondents' conduct which fall within the interdiction of Section 8(b)(4)(A). Thus, Bradshaw made it perfectly clear at the meeting of January 24 that the Westinghouse pipe was a minor issue and that Respondents were really concerned about Edison's purchasing policy for St. Clair Units Nos. 5 and 6 and the fact that Edison was seeking bids for the power piping from a contractor which did not have a contract with United Association and hence was not regarded as a 'fair shop." Bradshaw indicated that the issue concerning the Westinghouse pipe could be settled if United Engineers would give the Respondents some assurance that Edison would purchase the piping for the St. Clair units from a "fair shop." When United Engineers pointed out that it did not and could not control Edison's ,purchases and was therefore in no position to give or obtain such assurances, Bradshaw replied that that was the situation and that Respondents would not handle the Westinghouse pipe or the Clement boards until the situation at St. Clair was cleared up. Any further doubt as to Respondents' objectives in this respect is completely dispelled by the Memorandum of Agreement of May 21, 1957, in which United Association agreed through its Local 636 to furnish men necessary to complete the piping work at River Rouge Units 2 and 3, and United Engineers .agreed not to request pipefitters for, or to transfer pipefitters to, Edison's St. Clair project until it could assure United Association that Edison would abide by the terms of the Agreement requiring prefabricated pipe to be fabricated in a United Association shop. The inevitable result of United Engineers' failure to obtain such assurance would be a cessation of business between United Engineers and Edison. It is thus clear from the foregoing that a further objective of Respondents' conduct was to force or require Edison to cease doing business with Westinghouse 23 Washington- Oregon Shingle Weavers' District Council, et at. (Sound Shingle Co.), 101 NLRB 1159, enfd. 211 F. 2d 149, 152 (C.A. 9) ; The Sand Door & Plywood Co. case, supra; Booher Lumber Co. case, supra; Joliet Contractors Association, 99 NLRB 1391, 1395, 1415, enfd. 202 F. 2d 606, 610 (C.A. 7). LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 265 and with any other person or company which did not have a contract with United Association. Under Section 8(b)(4)(A), it is not necessary that the employer or person whom the labor organizations seek to force to cease doing business with any other person be the employer of the employees who have been induced or encouraged to engage in a work stoppage for that purpose.24 Moreover, it is also obvious that an alternative objective of Respondents' conduct was to force or require United Engineers to cease doing business with Edison, an objective which was ultimately accomplished when Edison canceled United Engineers' contract for Units Nos. 5 and 6 at St. Clair because of the May 21 Memorandum of Agree- ment. Accordingly, I find that additional objects of Respondents' conduct, pro- scribed by Section 8(b) (4) (A) of the Act, was to force or require Edison to cease doing business with Westinghouse and with any other person who did not have a contract with United Association or to force or require United Engineers to cease doing business with Edison. 4. The contract urged as a defense by Respondents The Respondents contend that the fabrication clause then in effect, set forth in full in section III A. 5, supra,25 renders lawful any of Respondents' conduct which might otherwise be violative of Section 8(b)(4)(A). The Charging Parties and the General Counsel contend that the fabrication clause was intended by the contracting parties to apply only to a situation where the United Engineers has full control over the purchase of the piping and hence was not applicable to the instant case; that, in any event, the fabrication clause is tantamount to a "hot- cargo" clause which has been held by the Board to be no defense to conduct otherwise proscribed by Section 8(b)(4)(A); and that the fabrication clause is contrary to public policy and void. While I have grave doubts that the fabrication clause was in fact intended by the contracting parties to apply to the type of situation present in the instant case, I find it unnecessary to, and hence do not, resolve this issue in view of my findings that Respondents' defense is without merit. Respondents contend that a distinction should be made between the fabrication clause and a "hot-cargo" clause; that the fabrication clause is a "work jurisdiction" or "job protection" clause and is analogous to a clause restricting an employer's right to subcontract the work. I note that article XV of the 1956 agreement with United Association, in effect at all material times except for the fabrication clause,26 contains a specific clause, entitled "Subcontractor," in which the "Employer agrees not to sublet or contract out any work covered herein unless the contractor to whom the work is sublet is in agreement either with the Union or any of its Local Unions." It is thus apparent that the fabrication clause was not intended as a restriction on United Engineers' right to subcontract, as that purpose was already accomplished by another clause. In any event, the fabrication clause, in my opinion, is tantamount to a "hot" pipe clause. Any pipe not fabricated by United Association members is, in effect, declared to be "hot" and the pipefitters reserved the right not to handle it for that reason. However the clause may be designated, the principles enunciated by the Board in those cases where a "hot-cargo" clause was involved are equally applicable here.27 Accordingly, I find that while the Act does not forbid the 21 The Sand Door & Plywood Co. case, supra, 113 NLRB at p. 1214. 2 This clause, which is entitled "Erection," provides in substance that all pipe work must be performed by journeymen members of the United Association ; that if pipe of 21/ inches and over in diameter is fabricated off the jobsite , it is to be fabricated by an employer employing journeymen of the United Association ; and that the Local Unions of the United Association reserve the right to refuse to 'handle fabricated materials sent to the jobsite that have not been 'fabricated by members of the United Association receiving the prevailing building construction wage rates in the area. 20 The fabrication clause contained in the 1947 agreement continued to be in effect at all times material herein. 21 The Sand Door case, supra; General Drivers, Chauffeurs, Warehousemen and Helpers Union, Local No. 886, et al. (American Iron and Machine Works ), 115 NLRB 800; Milk Drivers and Dairy Employees Local Union No. 338 et al. ( Crowley's Milk Company,. Inc.), 116 NLRB 1408. Although the American Iron and Machine Works and Crowley's Milk cases have been reversed by the Courts of Appeals for the District of Columbia and the Second Circuit, respectively , the Board has not accepted these decisions as final but has petitioned the Supreme Court for writs of certiorari . Consequently, until the Supreme Court rules to the contrary , the Board's decisions in these cases remain binding upon me. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD execution of the fabrication clause in question nor the Respondents' enforcement thereof by appeals to United Engineers to honor its contract , Section 8 (b) (4) (A) does preclude enforcement of this clause by appeals to employees for a proscribed object. And this is so even though United Engineers finally acquiesced in Re- spondents' demands that the employees refuse to handle the prefabricated pipe in question.28 5. Liability of the named Respondents As Kelley participated directly in the unlawful conduct, there is no question as to his responsibility for the violation herein found . As Kelley was also the agent of Local 636 and the United Association , as previously found, there is likewise no question as to the liability of Respondents Local 636 and the International for the unfair labor practices found. I have also found that in inducing or encouraging the employees of United Engineers not to handle the Westinghouse pipe, Kelley was also acting as the agent and pursuant to the orders of Business Manager McCarthy rendered in his capacity as an agent of the Local and the International. Hence, McCarthy, was also liable for the unlawful conduct in his capacity as an agent of the two labor organizations. I find, therefore , that all named Respondents violated Section 8(b)(4)(A) of the Act by inducing or encouraging the employees of United Engineers to engage in a concerted refusal in the course of their employment to handle or work on Westinghouse pipe with the object of forcing or requiring United Engineers to cease using or handling pipe prefabricated by Westinghouse, forcing or requiring Edison to cease doing business with Westinghouse or with any other person who did not have a contract with United Association or its affiliated Locals, or forcing or requiring United Engineers to cease doing business with Edison.29 C. Conclusions with respect to other alleged violations The complaint, as amended , further alleges that Respondents also violated the Act with respect to the employees of DiDuca Brothers, Inc., General Electric Corporation, Allis-Chalmers Manufacturing Company, Spitzley Plumbing and Heating Company of Detroit, Babcock & Wilcox, Clement Electric Company and Crane Company. As there is no evidence in the record to support these allegations, I will recommend their dismissal. The complaint , as amended , also alleges a violation with respect to employees of United Engineers at Edison's projects at St. Clair and Monroe , Michigan. The record shows that at all times material herein, there were no pipefitters employed by United Engineers at these projects. The record does show, as pre- viously found, that Respondents took the position that they would refuse to furnish pipefitters for St. Clair and for the Enrico Fermi project at Monroe, even if re- quested , until United Engineers assured Respondents that the piping for St. Clair would be fabricated in a "fair shop," that is, in a shop under contract with the United Association. It is also apparent from the record, as admitted by McCarthy, that Respondents' position was the same with respect to any other contractor employed by Edison on these projects. The record further shows that on March 13, Local 636 refused Brown 's request for 12 pipefitters and a foreman for the River Rouge Unit No. 2, because of the dispute over the Westinghouse pipe. In addition , as previously found, Local 636 refused to furnish men to DiDuca Brothers and to J. W. Partlan Company for work at the St. Clair job site on the asserted ground that some jurisdictional disputes existed there . It is the theory of the General Counsel and the Charging Parties that these refusals to furnish pipefitters for work on Edison's projects , as well as the May 20 Memorandum of Agreement in which United Engineers agreed not to transfer pipefitters from River 211 find no merit in Respondents' further contention that Edison and Westinghouse were not persons wholly unconcerned in the dispute and therefore not entitled to protec- tion under the philosophy underlying the "ally doctrine." That doctrine is clearly in- applicable to the instant situation , as is readily apparent from the decisions in which the Board has applied it. Irwin-Lyons Lumber Company, 87 NLRB 54; United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et at. (J. G. Roy and Sons Company), 118 NLRB 286. 2 I find it unnecessary to determine whether any other conduct of Respondents , except that discussed in the following section, also constituted unlawful inducement and en- couragement of employees for a proscribed objective because findings of a further vio- lation, even if made, would not in any event affect the Order which is hereinafter recommended. LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 267 Rouge to St. Clair nor to ask for pipefitters for the St. Clair or Monroe projects, constituted a form of strike or unlawful inducement or encouragement of em- ployees violative of the Act. Local 636 has jurisdiction over Detroit and the surrounding area. It furnishes pipefitters, upon request, to contractors performing work in this territory in accordance with the terms of the national agreement to which such contractors may be a party. I agree with the position of the Respondents, cogently set forth in their brief, that no violation can be predicated on Respondents' refusal to fur- nish or refer pipefitters, because no employment relationship had yet been estab- lished between the United Engineers and the other contractors, on the one hand, and the men who were not referred, on the other hand. United Marine Division, Local 333 (New York Shipping Association), 107 NLRB 686, 709, relied on by the General Counsel and the Charging Parties, is not apposite to the situation pre- sented here. That case dealt with the shipping industry where longshoremen functioned as part of steady gangs or were regular workers at piers and hence were found by the Board to be employees although all of them would not have been selected for work each day under the "shape-up" system peculiar to that industry 30 The situation in the present case is controlled by Glazier's Union, Local 27 et al. (Joliet Contractors Association), 107 NLRB 1391, 1392-1394, where the Board held that the Union's refusal to furnish glaziers to member-employers of the Joliet Contractors Association constituted neither a strike nor inducement or encourage- ment of employees "in the course of their employment." Thus the Board stated, "men cannot quit before they are hired; they cannot work before they start.. . We cannot construe "in the course of their employment" to include employment by several unrelated employers for varying periods, with no continuity or assur- ance of renewal at any definite period of time." In affirming the Board's findings in this respect, the Court of Appeals for the Seventh Circuit stated (202 F. 2d 606, 609): We also agree with the Board that the mere refusal on the part of the Union to permit its members to work on a job where preglazed sash is used, or a concerted refusal on the part of the employees to do so, does not come within the condemnation of the statute. This is so because the plain language limits the activities to "employees . . . in the course of their employment." We agree with the view that employees cannot be on a strike or engaged in a refusal "in the course of their employment" prior to the establishment of an employer-employee relationship. If Congress had intended to proscribe the refusal to accept employment, either individually or in concert, it no doubt would have employed language appropriate to accomplish such purpose. We suspect that Congress deliberately refrained from so doing in order to escape a serious constitutional challenge. At any rate, we would doubt the power of Congress to make the refusal to work an unfair labor practice. So far as we are aware, people have a right either as individuals or groups to refuse to work for any reason which they may regard as sufficient or for no reason. It is only after the employer-employee relationship has been estab- lished that Congress has prescribed a code of conduct for both employer and employee in which it has specifically designated that which constitutes an unfair labor practice on the part of the parties respectively. I will accordingly recommend the dismissal of the complaint in so far as it alleges a violation based on Respondents' conduct in refusing to furnish or refer men to any of Edison's projects. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the employers set forth 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 commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in conduct violative of Section 8(b) (4) (A) of the Act, I will recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 00 See also Local 1422, International Longshoremen's Association, Independent, et at. ( Charleston Stevedoring Company ), 118 NLRB 920. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is apparent from the record that Local 636 and the United Association are the main source of supply of journeymen pipefitters and apprentices in the area, over which Local 636 has jurisdiction. It is also apparent from the record that Respondents' target was the use of pipe fabricated by employees who were not members of or represented by the United Association or one of its Locals, and that all persons who used, bought or sold such prefabricated pipe were the intended victims of Respondents' course. As previously found, Edison has already ordered the turbine generator for St. Clair Unit No. 6 from Westinghouse; and for the Enrico Fermi project, from Allis-Chalmers. The employees who fabricate the pipe for Westinghouse and Allis-Chalmers are represented by Locals which are not affiliated with United Association. Although Edison has canceled its contract with United Engineers for St. Clair, any other contractor hired by Edison will have to look to the United Association and Local 636 for its main source of pipe- fitters and will presumably be in the same position as United Engineers was with respect to the use of prefabricated pipe. Under all the circumstances, and in view of the incidents involving Crane pipe and the Monroe panel boards, Respondents' refusal to furnish pipefitters for River Rouge, Respondents' announced intention not to furnish pipefitters to any contractor who did not comply with the fabrica- tion clause of its contract, including those at Edison's St. Clair and Enrico Fermi projects, and Respondents' pressures upon United Engineers to get Edison to purchase its power piping from a "fair shop" (that is, a shop under contract with United Association or one of its Locals), I am convinced that the record discloses a danger that Respondents' unlawful conduct may be extended to employees of other employers than those immediately involved in this case. I therefore find, in agreement with the General Counsel and the Charging Parties, that it is necessary in order to effectuate the policies of the Act to recommend a cease and desist provision sufficiently broad to meet this situation. The Charging Parties also contend that the Recommended Order should contain a provision requiring United Association and Local 636 to honor all requests for pipefitters which may be made by any employer under contract with them, and that the United Association and Local 636 should be ordered to instruct all its members and all employees represented by them, who are employed on Edison's construction projects, that they are not to strike or otherwise engage in a con- certed refusal to perform services in the course of their employment for a pro- scribed object. Like the Respondents, I have grave doubts as to the power of the Board to issue such an order.31 In any event, I am of the opinion that the Order herein recommended is adequate to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local No. 636 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL- CIO, and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 2. The above-named labor organizations and their agents, including Tim Mc- Carthy and William B. Kelley, have engaged in unfair labor practices within the meaning of Section 8(b)(4)(A) of the Act by inducing or encouraging the employees of United Engineers and Constructors, Inc., to engage in a concerted refusal in the course of their employment to handle or work on Westinghouse pipe with the object of forcing or requiring United Engineers to cease using or handling pipe prefabricated by Westinghouse Electric Corporation, forcing or re- quiring The Detroit Edison Company to cease doing business with Westinghouse or with any other person who did not have a contract with the United Association or its affiliated Locals, or forcing or requiring United Engineers to cease doing business with Edison. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. sl Joliet Contractors Association case, supra. See also international Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America et at. (Clark Bros. Transfer Company), 116 NLRB 1891, 1893, 1913, where the Board reversed the Trial Examiner's Recommended Order, directing the Union to request its members and other employees represented by it to cease refusing to handle the freight of certain employers. MAX SILVER & SON 269 4. The Respondents have not engaged in unfair labor practices with respect :to the employees of DiDuca Brothers, Inc., General Electric Corporation, Allis- Chalmers Manufacturing Company, Spitzley Plumbing and Heating Company of Detroit, Babcock and Wilcox , Clement Electric Company, and Crane Company, nor by refusing to furnish or refer pipefitters for work on any of Edison 's projects. [Recommendations omitted from publication.] Max Silver, Irwin Silver and Edward Braude, Co-Partners, d/b/a Max Silver & Son and International Ladies' Garment Workers' Union, AFL-CIO. Case No. 4-CA-1719. March 16, 1959 DECISION AND ORDER On December 24, 1958, Trial Examiner John C. Fischer issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and -,vere engaging in certain un- fair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, and further finding that the Respondents had not engaged in other unfair labor practices, as alleged in the complaint, and recommending that the complaint be dismissed insofar as it alleged such violations, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents, the General Counsel, and the Charging Party filed exceptions to the Intermediate Report, together with supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Lee- dom and Members Bean and Fanning]. . The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the -case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Max Silver, Irwin Silver and Edward Braude, d/b/a Max Silver & Son, Philadelphia, Pennsyl- vania, their agents, successors, and assigns shall: :' The Trial Examiner's recommended order is modified in certain respects , to remedy all of the specific violations found. As the extent of such violations does not warrant the broad order recommended by the Trial Examiner , we have adopted a narrow order. 123 NLRB No. 33.