Enterprise Association of Steam, Hot Water, Etc.

ENTERPRISE ASSOCIATION OF STEAM, HOT WATER, ETC. 521 Enterprise Association of Steam , Hot Water, Hydraulic, Sprin- kler, Pneumatic Tube, Ice Machine and General Pipefitters of New York and Vicinity, Local Union No. 638 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and John Tracey and Michael F. Daly, Its Agents and Mechanical Contractors Association of New York, Inc. and Consolidated Edison Company of New York, Inc. Cases Nos. 2-CC-482 and 2-CC-483. August 17, 1959 DECISION AND ORDER On May 21, 1959, Trial Examiner Samuel Ross issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents, with the exception of John Tracey, had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondents filed exceptions to the Interme- diate Report and the Charging Party filed a brief in support of the report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Bean, and Fanning]. 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 Interme- diate Report, the exceptions, the brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations 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 Enterprise Association of Steam, Hot Water, Hydraulic, Sprinkler, Pneumatic Tube, Ice Machine and General Pipefitters of New York and Vicinity, Local Union No. 638 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, its officers, representatives, agents, successors, and assigns, including Michael F. Daly, shall : 1. Cease and desist from engaging in, or inducing or encouraging the employees of Courter & Company, Incorporated, or of any other employer to engage in, a strike or a concerted refusal in the course of their employment, to use, manufacture, process, transport, or other- 124 NLRB No. 68. .522 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD wise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (1) to force or require Consolidated Edison Company of New York, Inc., to cease using, selling, handling, transporting or otherwise dealing in the prod- ucts of Midwest Piping Co., Inc., or of any other employer or person who does not fabricate its products at the job sites of Consolidated Edison Company of New York, Inc.; (2 )to force or require Consoli- dated Edison Company of New York, Inc., to cease doing business with Midwest Piping Co., Inc., or with any other employer or person who does not fabricate its products at the job sites of Consolidated Edison Company of New York, Inc. ; or (3) to force or require Courter & Company, Midwest Piping Co., Inc., or any other employer or person to cease doing business with Consolidated Edison Company of New York, Inc. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at the offices of Enterprise Association of Steam, Hot Water, Hydraulic, Sprinkler, Pneumatic Tube, Ice Machine and Gen- eral Pipefitters of New York and Vicinity, Local Union No. 638 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and at all other places where notices to members of Local 638 are ,customarily posted, copies of the notice attached to the Intermediate Report marked "Appendix A." 1 Copies of said notice to be furnished by the Regional Director for the Second Region, shall, after being duly signed by an official representative of Local 638, and by Michael F. Daly, be posted immediately upon receipt thereof, and be main- tained 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 Local 638 and Daly to insure that said notices are not altered, defaced, or cov- ered by any other material. (b) Mail to the Regional Director for the Second Region signed copies of said notice for posting by Courter & Company, Incorporated, and the Consolidated Edison Company of New York, Inc., if willing, in places at the Arthur Kill Generating Station Unit No. 2 project where notices to employees of Courter & Company, Incorporated, and other contractors are customarily posted. (c) Notify the Regional Director for the Second Region in writing, within 10 days from the date of this Decision and Order, what steps Respondents Local 638 and Daly have taken to comply therewith. 1 This notice is amended by substituting for the words "The Recommendations of a Trial Examiner," the words "A Decision and Order." 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." ENTERPRISE ASSOCIATION OF STEAM, HOT WATER, ETC. 523, IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that Respondent John Tracey violated Section 8 (b) (4) (A) of the Act. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by the Consolidated Edison Company of New York, Inc., and Mechanical Contractors Association of New York, Inc., herein called Edison and Association respectively, the General Counsel of the National Labor Relations Board, by the Regional Director for the Second Region (New York, New York), issued a complaint dated October 22, 1958, alleging that the parties listed in the caption as Respondents, herein called Local 638, Tracey and Daly respectively, had engaged in 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, as amended,. 61 Stat. 136, herein called the Act. More specifically, the com- plaint alleges in substance that since on or about July 17, 1958, the Respondents have engaged in, and induced and encouraged the employees of Courter & Company, Incorporated (herein called Courter) to engage in, strikes or concerted refusals in the course of their employment to handle or work on materials or perform services with an object of forcing or requiring Courter, Edison, and other employers and persons to cease using materials fabricated by Midwest Piping Co., Inc. (herein called Midwest), and to cease doing. business with Midwest, forcing or requiring Courter and other employers and persons to cease using products of Edison and to cease doing business with Edison,. and forcing or requiring Edison and other employ- ers and persons to cease doing business with Courter. Respondents' answer generally denied the unfair labor practice allegations. Pursuant to due notice, a hearing was held before a duly designated Trial' Examiner in. New York, New York, on February 2, 3, 4, 5, and 6, 1959. All parties were rep- resented at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses,. to introduce evidence, to present oral arguments, and to file briefs. Only the Charging Party Edison has filed a brief. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. COMMERCE Edison, a public utility which furnishes gas and electricity in the New York City area, receives an annual gross revenue in excess of $10,000,000 for utility services furnished to enterprises whose operations affect commerce. Courter, a contractor engaged in the business of producing, furnishing, and installing heating, ventilating, piping, and power piping systems, annually performs services valued in excess of $2,000,000, of which in excess of $500,000 is performed in States other than the State of New York where Courter is located. Association is an organization com- posed of employers engaged in the business of installing heating, piping, and air- conditioning systems and related work, which bargains collectively on behalf of its employer members. The members of Association annually distribute and install products valued at more than $2,000,000 of which products and equipment- valued at more than $1,000,000 are shipped in interstate commerce from the respective places of business of said members in New York directly to other States of the United States. On the foregoing, I find that Edison, Courter, and Association are engaged in interstate commerce within the meaning of the Act. II. THE LABOR ORGANIZATION AND ITS AGENTS Local 638 is a labor organization within the meaning of Section 2(5) of the Act. John Tracey and Michael F. Daly are employed by Local 638 as business agent at large and business agent, respectively, and are agents of Local 638 within the meaning of Section 2(13) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background The essential facts in this case are undisputed. Edison is engaged in the expansion of its generating facilities to meet an increasing demand for electricity which has been growing at the rate of about 5 percent per 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD year since the end of the war. In connection with that expansion program, Edison is constructing an atomic powerplant at Indian Point in Westchester County, scheduled for completion in 1961, and a larger turbine generating plant known as' Unit No. 2, Arthur Kill Generating Station, located at Travis, Staten Island, New York. The latter plant, which is the one involved -in this proceeding, will when completed, have a capacity of 335 megowatts. Power from this plant is scheduled to be on Edison's lines in September 1959. In connection with the construction of this powerplant, on January 2, 1958, Edison contracted with Courter for the latter to "furnish labor, supervision, con- struction equipment, tools and certain material required to detail, fabricate .. . and erect general piping for Unit No. 2.. .. 1 The contract provided for com- mencement of work by Courter within 1 week and completion within 85 calendar weeks. The price for the work was specified as $2,836,000. Pursuant to request by Edison and in order "to dovetail" its work with the overall schedule for all the contractors on the project, Courter prepared a schedule of its work under the con- tract, showing when each item of work was to begin and end. This schedule was posted in Courter's field office at the project and was used by Courier to prepare detailed sketches from Edison's general piping plans and to order and fabricate material in time for erection. The importance of maintaining such a schedule was described by Michael Zadik, Courier's project engineer, as follows: The pipes have to go in sequence. In short, it fits almost like a jigsaw puzzle. You have to put them in rotation so that you don't crowd yourself out. Other- wise, it means a detriment later, cutting pipe in order to get in and crowding yourself so that you can't erect it later. Courter, as a member of the Association, is signatory to a collective-bargaining agreement with Local 638 fixing the wages and other terms and conditions of Courter's steamfitter employees.3 Rule 10 in the said agreement provides as follows: Welding Acetylene, electric or other forms of cutting or welding shall be done either in the shop or on the job of the direct employer at the option of the employer. If welding is done in the shop of the direct employer, the work shall be done by a steamfitter working alone. All welding work done on the job shall be done in accordance with Rule 5. Rule 5 of the agreement provides: All work to be performed under work jurisdiction of Enterprise Association must be performed by journeymen steamfitters or apprentices working in units of two, one of whom must be a steamfitter. A unit shall be composed of: (a) steamfitter with a steamfitter, or (b) steamfitter with an apprentice. In the spring of 1958, Courter subcontracted the fabrication of certain low- pressure systems required for the Edison project to Asco Supply Company (herein called Asco).3 Asco's employees are also represented for collective-bargaining pur- poses by Local 638. On or about April 15, 1958, Asco made its first delivery to the project site of the low-pressure piping ordered by Courter. Within the next few weeks, Asco made additional deliveries of pipe to Courter at the job site .4 Pursuant to instructions from Local 638's business agent, Respondent Daly, the Asco pipe was unloaded by Courter's employees but not installed in the building. In addition, Respondents instructed Asco to cease fabricating any more of the pipe ordered by Courter. Courter protested to Daly, but the latter was adamant in his refusal to permit the installation of the Asco pipe on the ground that it had been welded in violation of rule 10 of the trade agreement, to wit: that it was welded neither in Courter's shop nor at the job site.5 Courter protested that he was being discrimi- nated against by Respondents. It maintained that because of the failure of Local 638 to furnish sufficient welders, notwithstanding repeated requests therefor, it was impossible to maintain its schedule for Edison without subcontracting parts of the 'General Counsel's Exhibit No. 3. . 2 The term steamfitter as used herein applies also to the labor or "bull gang" em- ployed by Courter to perform manual labor at Edison's project. 8 Asco Supply 'Company is a subsidiary of Almirall and Company and the names Asco and Almirall are used interchangeably in the record. ' In all, 23 pieces were delivered by Asco to Courter. 5 At the times material herein, Courter had no shop other than one which he con- structed at the project. ENTERPRISE ASSOCIATION OF STEAM, HOT WATER, ETC. 525 work, and that on jobs such as this, Respondents had customarily waived literal compliance with the requirements of rule 10. Courter's protests were of no avail and the Asco pipe remained uninstalled at the project. . As a result of the foregoing, Courter fell behind its schedule on the project and Edison called Joseph A. Courser , president of Courier, to a meeting at Edison's of- fice in New York to discuss the situation . When advised of the impending meeting scheduled for June 25 , 1958, Daly agreed to permit the installation of the 23 pieces of Asco fabricated pipe already at the project .6 However, he made no commitment regarding what he would do about the balance of the order which Courier had given to Asco. B. The current incidents which are charged as unfair labor practices . At the meeting with Edison on June 25, the failure of Courier to maintain its schedule at the project was discussed . President Courier advised Edison that the 23 pieces of Asco pipe already at the project had been released for installation, but that he had no assurance from Respondents regarding what action they would take in respect to the balance of the Asco order . The meeting was postponed to permit Courter to ascertain the Union's position in respect to the balance of the Asco order. On Wednesday, June 30, President Courter again met with Edison and advised its officials that no assurance had been received from Respondents that the balance of the Asco order would be installed by Respondents' members. Courter further told Edison that because of the shortage of welders , he would not be able to do sufficient field fabrication to keep up with the schedule . Edison thereupon instructed Courter to look over the schedule , determine what piping systems were farthest behind and withdraw the fabrication of such systems from the contract . In com- pliance with Edison's instructions , Courter's project engineer Zadik sent the detailed sketches for eight piping systems to Edison . Subsequently, on July 14, 1958, Courter sent Edison a memorandum authorizing the reduction of the contract price by $25,970 for "the omission" therefrom of fabrication of the eight systems. Courier also transferred to Edison's warehouse at the project, fittings and valves necessary ,for the fabrication of the eight piping systems. Upon receipt of the sketches from Courser , Edison inquired and ascertained that Midwest's Clifton , New Jersey, plant could fabricate the eight piping systems with reasonable dispatch . Accordingly, on July 10, 1958, Edison contracted with Midwest to fabricate and deliver said piping to the project. In all, the contract or purchase order called for the fabrication and delivery of 250 pieces for the sum of $37,862.77. Under the contract , item No. 2, consisting of 47 pieces , was promised for delivery by July 18, 1958. The employees of Midwest's Clifton plant are represented for collective -bargaining purposes by Local Union No. 274, United Association of Journeymen and Appren- tices of the Plumbing and Pipe Fitting Industry of the United States and Canada, a sister local of Respondent Local 638. The first delivery of the pipe fabricated by Midwest was made on July 17, 1958, and subsequent deliveries were made on succes- sive Fridays thereafter. On the first and each succeeding delivery of the pipe fabricated by Midwest, Local 638's job steward, John Hyland, pursuant to instruc- tions from Respondent Daly, told Courter's bull gang employees not to carry the pipe into the building nor deposit it at the proper elevation for subsequent installation as directed by Courter 's general foreman, but only to unload it from the truck and leave it on the ground near the building .? After the refusal to carry the first load into the building, Midwest's Eastern Division Manager Taylor had a conversation with Respondent Daly. According to Taylor's credited testimony , he asked Daly what the trouble was and the latter replied that he was having trouble with the -contractor (Courter) and that it was not Midwest's fight. Daly recommended that Midwest stop fabricating the balance of the 250 pieces. Taylor refused , stating that he thought Daly should honor the United Association label on Midwest 's pipe.8 'Taylor met with no success in his efforts then or thereafter to get the pipe installed, -notwithstanding further protests to both Local 638 and the United Association.9 Moreover, efforts by Courter to get Respondents to permit the pipe to be carried It was thereafter installed without further incident. 7 The foregoing is. based on the admission of Local 638's job steward, John Hyland, as well as on the testimony of Bernard Smith , Francis H. Mosher , and Michael Zadik. 8I assume that Taylor meant that Local 638's members should install the Midwest .fabricated pipe. O The International Union with which both Respondent Local 638 and Local 274 are :affiliated. 0 526 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD into the building and installed, likewise proved unavailing and the pipe continued to accumulate on the ground at the project with each delivery by Midwest. Finally, in October 1958, after the charges herein were filed and served on Respondents, the latter agreed to allow Courier's employees to install the pipe fabricated by Midwest. C. Concluding findings The uncontradicted record in this case establishes that: (1) Respondents' Job Steward John Hyland induced and encouraged Courter's employees to refuse to carry the pipe fabricated by Midwest into the building and to deposit it where it was to be installed; (2) Hyland was acting pursuant to instructions from Respondents Local 638 and Daly; and (3) Hyland's instructions resulted in a refusal by Courter's employees to perform services, notwithstanding instructions to said employees from Courier's supervisors that they carry the pipe into the building for installation. Respondents' reason for engaging in this conduct was that the pipe was not fabricated by Courter itself, but by Midwest. Thus, an object of Respondents' conduct was to compel Edison to cease doing business with Midwest and to cease using, handling, or installing pipe fabricated by Midwest or by any other employer other than Courter. Leaving to the side for the moment the contentions and defenses urged by Respondents, the foregoing conduct constitutes a product boycott within the meaning of the Board's decisions in The Detroit Edison Company, 123 NLRB 225; Sound Shingle Co., 101 NLRB 1159, enfd. 211 F. 2d 149 (C.A. 9); York Corpora- tion, 121 NLRB 676, and Sand Door and Plywood Co., 113 NLRB 1210. The Board decisions cited, supra, leave no doubt that such product boycotts constitute violations of Section 8(b) (4) (A) of the Act. Respondents contend that because the eight piping systems in question were with- drawn from Courier's contract, the piping was not Courter's, and since Local 638 had no contract with Edison or Midwest, it was under no obligation to install the pipe. I find no merit in this contention. The erection and installation of the pipe in question remained Courter's obligation under its contract with .Edison, notwith- standing the removal therefrom of the fabrication of the eight systems. Since Re- spondent Local 638 had a contract with Courter requiring the performance of such services and Courter actually ordered the services whose refusal Respondents in- duced, the lack 'of a contract between Edison and Local 638, or between Midwest and Local 638, is obviously immaterial. Respondents further contend that Edison was acting as an "ally" or agent of Courter in contracting with Midwest for the fabrication of the eight piping systems, and conspired with Courter to assist the latter in breaching its trade agreement with Local 638. In support of this contention, Respondents call attention to the record: (1) that Courter's bid for the Edison contract was based on shop fabrica- tion of piping assemblies and therefore contemplated breach of Local 638's contract; (2) the shipment of valves and fittings, for use in the fabrication of the eight sys- tems, by Courter to Edison and by the latter to Midwest; (3) the continued business relations between Courter and Edison and between Midwest and Edison; (4) the father and son relationship between the president of Edison and a salesman em- ployed by Midwest; and (5) "the unusualness of the deal between Midwest and Consolidated Edison." I am not persuaded that the record discloses any evidence of any conspiracy or collusive agreement between Edison and Courter to breach Local 63 8's trade agree- ment and I find no evidence to support the contention that Edison was acting in Courter's behalf in withdrawing the eight piping systems from Courter and letting the fabrication thereof to Midwest. On the contrary, the record shows that by doing so, Edison was motivated solely by its concern over the delay in the construction of its generating station , and that Edison actually took a financial loss of about $12,000 by so doing.'° I also find nothing sub rosa, sinister, or indicating "allies" in the ship- ment of the fittings and valves needed for the eight systems by Courter to Edison or in the subsequent use of said valves and fittings by Midwest. All the materials furnished by Courter under its contract with Edison were paid for by Edison. Since Courter was not going to fabricate the eight systems, it was quite natural that Edison should utilize the valves and fittings needed for said systems, for which it had paid, by sending them to the fabricator instead of permitting them to remain unused in Courter's bins. •I likewise see no "ally" situation in the fact that the son of Edison's president is employed as a salesman by.Midwest. While that fact may 10 The difference between its credit from Courter and 'the contract price with Midwest. ENTERPRISE ASSOCIATION OF STEAM, HOT WATER, ETC. 527 have been the reason why Midwest was asked to fabricate the eight systems, such relationship does not establish common ownership and control within the meaning, of Board decisions interpreting Section 8(b) (4) (A) of the Act. Cf. J. G. Roy and Sons Company, 118 NLRB 286. Similarly, I do not regard the fact that Edison has continued to do business with Courter and Midwest as any indication of an "alliance" between them. N.L.R.B. v. Denver Building and Construction Trades Council, et al., 341 U.S. 675. Finally, even assuming that Courter's bid for the Edison contract was based on shop fabrication, it does not follow that this establishes that Courter intended at the time of its bid to breach Local 638's agreement. Indeed, the record seems to indicate that Courter was prevented from doing its own shop fabrication by the inability of Respondents to furnish sufficient welders. But even assuming arguendo that Courier, when bidding, contemplated that it would subcontract fabri- cation in violation of the trade agreement, there is still no evidence that Edison was. then aware of it, or even if then aware of it, it became Courter's "ally" in the breach of the trade agreement merely by entering into its contract with Courter. The burden of proving the "ally" relationship between Edison and Courter was oa Respondents. Royal Typewriter Company, Inc., 111 NLRB 317. On the record,. I am not persuaded either that such a relationship existed or has been shown- Contrary to Respondents' assertion, I find nothing unusual in the deal between Midwest and Edison in the light of Courter's inability to maintain its construction schedule. Finally, Respondents contend that the inducement of the refusal to install Mid- west's pipe was for the lawful object of compelling Courter to abide by the terms of its agreement with Local 638, and thus was only a valid exercise of its con- tractual right to require Courter to perform all its welding work in its own shop or on the jobsite. Insofar as the pipe fabricated by Midwest is concerned, I see no merit to this contention." When the fabrication of the eight systems was removed by Edison from the Courter contract, that subject matter was no longer under Courter's control but became only and exclusively Edison's concern. The record shows that Courter was neither consulted nor advised of Edison's contract with Midwest and had nothing to do with the letting of such contract. It follows, a fortiori, that the fabrication of the pipe by Midwest involved no breach by Courter of its trade agreement with Local 638, and that, therefore, the object of Local 638's inducement of the refusal to handle Midwest's pipe was not, as contended, to compel Courter to abide by its agreement with Local 638. Accordingly, I find and conclude that by inducing Courter's employees on and after July 17, 1958, to refuse to carry Midwest's pipe into the building at the project site, Respondents Local 638 and Daly engaged in unfair labor practices within the meaning of Section 8(b) (4) (A) of the Act. Detroit Edison Company, supra; York Corporation, supra; Sound Shingle Company, supra. Although there was some evidence that Respondent Daly advised Respondent John Tracey, the Union's business agent at large, of his conduct in respect to the nonhandling of the Midwest pipe and that the latter expressed his approval thereof or at least did not disapprove, I do not regard this as sufficient to establish that Respondent Tracey affirmatively induced or encouraged conduct in violation of Section 8(b)(4)(A) as charged. I therefore do not believe that the General Counsel has established that Respondent Tracey is responsible for the unfair labor practices herein. I will accordingly recommend the dismissal of the complaint insofar as it alleges violation of the Act by John Tracey. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents Local 638 and Michael Daly set forth in section III, .above, occurring in connection with the operation 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. "The complaint herein does not allege the refusal to install the Asco pipe as a viola- tion of Section 8(b) (4) (A). The testimony regarding the Asco pipe was offered and received only as background to the violation alleged in the complaint, namely, the in- ducement of the refusal to install Midwest's pipe. Accordingly, I do not deem it necessary to decide whether Courter breached its contract with Local 638 by its subcontract of the fabrication of piping assemblies to Asco. 528 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that Respondents Local 638 and Michael Daly have engaged in conduct in violation 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. It is apparent from the record that unless enjoined, Respond- ents Local 638 will continue to refuse to install or otherwise work on any pipe which is fabricated for Edison by any fabricator other than the contractor at the project site. Moreover, although the Midwest pipe involved in this particular refusal to in- stall is now being installed by Local 638's members, there is no assurance that further orders of pipe by Edison to Midwest will not again be subjected to the same refusal to handle as that involved in the instant case. I therefore find, in agreement with the General Counsel and the Charging Party Edison, that to effectuate the policies of the Act, it will be necessary to recommend a cease and desist provision sufficiently broad to meet this situation. 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. Enterprise Association of Steam, Hot Water, Hydraulic, Sprinkler, Pneumatic Tube, Ice Machine and General Pipefitters of New York and Vicinity, Local No. 638 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe- fitting Industry of the United States and Canada, is a labor organization within the meaning of Section 2(5) of the Act. 2. Michael F. Daly is an agent of Respondent Local 638 within the meaning of Section 2 (13) of the Act. 3. On and since July 17, 1958, the above named labor organization and its agent Michael F. Daly have engaged in unfair labor practices within the meaning of Section 8(b) (4) (A) of the Act by inducing and encouraging the employees of Courter to engage in a concerted refusal in the course of their employment to handle or work on pipe fabricated by Midwest with an object of forcing or requiring Edison to cease using or handling or otherwise dealing in pipe fabricated by Midwest and to cease doing business with Midwest, and to force or require Midwest to cease doing business with Edison. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. The proof does not establish that Respondent John Tracey is responsible for the unfair labor practices herein. [Recommendations omitted from publication.] APPENDIX A NOTICE TO ALL MEMBERS OF ENTERPRISE ASSOCIATION OF STEAM, HOT WATER, HYDRAULIC, SPRINKLER, PNEUMATIC TUBE, ICE MACHINE AND GENERAL PIPEFIT- TERS OF NEW YORK AND VICINITY, LOCAL UNION No. 638 OF THE UNITED AS- SOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AND TO ALL EMPLOYEES OF COURTER & COMPANY, INCORPORATED Pursuant to the recommendations of a Trial Examiner of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations .Act, we hereby notify you that: WE WILL NOT engage in, or induce or encourage the employees of Courter & Company, Incorporated, or of any other employer, to engage in, a strike or a concerted refusal in the course of their employment, to use, manufacture, proc- ess, transport, or otherwise handle or work on any goods, articles, materials or commodities, or to perform any services, where an object thereof is: (1) to force or require Consolidated Edison Company of New York, Inc., to cease using, selling, handling, transporting or otherwise dealing in the products of Midwest Piping Co., Inc., or any other employer or person who does not fabricate its products at the job sites of Consolidated Edison Company of New York, Inc.; (2).to force or require Consolidated Edison Company of New York, Inc., to cease doing business with Midwest Piping Co., Inc., or with any other employer or person who does not fabricate its products at the job sites of Consolidated Edison Company of New York, LEAR, INC. 529 Inc.; or (3) to force or require Courter & Company, Midwest Piping Co., Inc., or any other employer or person to cease doing business with Con- solidated Edison Company of New York, Inc. ENTERPRISE ASSOCIATION OF STEAM, HOT WATER, HYDRAULIC, SPRINKLER, PNEUMATIC TUBE, ICE MACHINE AND GENERAL PIPEFITTERS OF NEW YORK AND VICINITY, LOCAL UNION No. 638 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) ( Title) Dated------------------- By------------------------------------------- (MICHAEL F. DALY, Business Agent) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Lear, Inc. and International Association of Tool Craftsmen, N.I.U.C., Petitioner. Case No. 7-RC-3975. August 17, 1959 SUPPLEMENTAL DECISION AND SECOND DIRECTION OF ELECTION On April 10, 1959, the Board issued its Decision and Direction of Election (123 NLRB 713) in the above-entitled proceeding, finding that "the toolroom, engineering experimental shop, and flexible shop employees comprise a functionally distinct and homogeneous depart- mental group who may, if they so desire, constitute a separate appro- priate unit." On May 4, 1959, the Board issued an order directing that the record be reopened and a further hearing be held, "restricted to consideration of the composition of the Employer's flexible shop to determine whether the employees included therein should be included within the unit which the Board found may be appropriate." There- after, on May 25, 1959, the Board issued a further order broadening the reopened hearing to include consideration of the applicability of the contract bar doctrine to the flexible shop. The record was reopened and a further hearing was held before James H. Wehrenberg, hearing officer, on May 26, 1959. The hearing officer's rulings made at the reopened hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Bean, and Fanning]. Upon the entire record in this case, the Board finds : 1. The Employer and the Intervenor, International Union, United Automobile, Aircraft and Agricultural Implement Workers of Amer- ica, (UAW), AFL-CIO, and its Local Union No. 330, moved to 124 NLRB No. 69. 525543-60-vol. 124-35