Asbestos Workers, Local 8

330 DECISIONS OF NATIONAL International Association of Heat and Frost Insulators and Asbestos Workers, Local No . 8, AFL-CIO and Preformed Metal Products -Company, Inc. Case 9-CC-378-2 October 25, 1968 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On March 22, 1967, the National Labor Relations Board issued its Decision and Order in the above- entitled proceeding,' finding that Respondent Union violated Section 8(b)(4)(i) and (ii)(B) of the Act by inducing and encouraging a work stoppage with an object of forcing or requiring Baldwin-Ehret-Hill (Baldwin) to cease using precut aluminum jacketing made by the Charging Party, Preformed Metal Pro- ducts Company, Inc. (Preformed). Thereafter, the Charging Party filed a petition for review of the Board's Order and the Board filed a petition for enforcement of the Order with the United States Court of Appeals for the Sixth Circuit. The court found there was substantial evidence to support the Trial Examiner's and the Board's finding that the Union induced the refusal to install the precut insulating jacketing. As to the remaining issue, i.e., whether or not the strike was "primary" because directly motivated by the Union's concern with enforcing the work preservation clause in its agree- ment with the employer, the court stated, "The Trial Examiner and the Board passed upon the work preservation issue without the benefit of the most recent Supreme Court holdings on this topic. National Woodwork Manufacturers Assn. v. N.L.R.B., 386 U.S. 612 (1967), and its companion case, Houston Insu- lation Contractors Assn. v. N.L.R.B, 386 U.S 664 (1967), were decided approximately one month after the entry of the Board's order in this case. In these cases somewhat similar activities to that engaged in this case were held to be `primary'." The court remanded the case to the Board for reconsideration in light of the Supreme Court's rulings.2 The Board3 has reexamined its findings and con- clusion in the instant case in the light of the Supreme Court's recent rulings in this area and finds no reason to disturb its original Decision and Order. In National Woodwork, supra, the Court emphasized the central purpose of Section 8(b)(4)(B) to be the prohibition, 1 163 NLRB No. 68. 2 Preformed Metal Products Company, Inc. v. N.L.R.B., 396 F.2d 443 (C.A. 6). LABOR RELATIONS BOARD as a secondary boycott, of union activity directed against a neutral employer, including the immediate employer, when in fact the activity directed against him was carried on for its effect elsewhere. Thus an employer is protected from union pressures designed to involve him in disputes not his own. Unaffected, however, are traditional primary strikes and picketing (including strikes brought to pressure employers to preserve for employees work traditionally done by them) despite the severity of their impact on neutral employers. The crucial determination in such cases is whether a union's activity has a primary or secondary objective which itself turns on the question whether the pressure brought to bear on the employer was "addressed to the labor relations of the contracting employer vis-a-vis his own employees" or was "tactic- ally calculated to satisfy union objectives elsewhere." Resolution of this issue rests on an evaluation of the totality of circumstances involved in each case. In this regard, the Court in National Woodwork stated: The determination whether the "will not handle" sentence of [the agreement] and its enforcement violated ... Section 8(b)(4)(B) cannot be made without an inquiry into whether, under all the surrounding circumstances, the Union's objective was preservation of work for Frouge's employees, or whether the agreements and boycott were tactically calculated to satisfy Union objectives elsewhere. Were the latter the case, Frouge, the boycotting employer, would be a neutral bystand- er, and the agreement or boycott would, within the intent of Congress, become secondary. There need not be an actual dispute with the boycotted employer, here the door manufacturer, for the activity to fall within this category, so long as the tactical object of the agreement and its mainte- nance is that employer, or benefits to other than the boycotting employees of the primary employer thus making the agreement or boycott secondary in its aim ... " [386 U.S. at pp. 644-65] [footnote omitted.] The record in the instant case amply demonstrates that the Union's activities were secondary in objec- tive. The Union's work stoppage consisted in a refusal to install precut aluminum jacketing manufactured by Preformed and purchased by Baldwin for installation at the jobsite. Baldwin's employees had not previous- ly performed the work of manufacturing such jacket- ing, and there was no provision in the bargaining agreement between Baldwin and the Union which 3 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the National Labor Relations Board has delegated its powers in connection with this case to a three -member panel. 173 NLRB No 55 ASBESTOS WORKERS, LOCAL 8 reserved such work to them.' The record in fact shows that Baldwin does not make a jacketing such as the Preformed product and that the jacketing used in the manufacture of Baldwin's factory-made jacketed insulation is purchased by Baldwin precut. Moreover, it was established that the Hamilton project was not the first occasion on which Baldwin had changed its technique of installation from factory application to jobsite application of the jacketing. On two prior jobs in the same area, Baldwin had also purchased precut jacketing like Preformed's-but manufactured by a different employer-and directed its employees to apply the jacketing to the insulation at the jobsite and not at the factory. It is undisputed that on these occasions neither the employees nor the Union complained. Finally, it would appear that the shift from the use of factory jacketed insulation deprived employees of no work. Rather, it tended to increase the total work by requiring a two-step installation job. The instant case is thus factually distinguishable from the National Woodwork and Houston Insulation cases. In National Woodwork, Frouge, the general contractor, had a collective bargaining agreement with the Carpenters' International Union under which Frouge agreed to be bound by local agreements in areas in which it had jobs. Frouge was therefore subject to a Philadelphia area agreement between the Union and an association of contractors which pro- vided that " . . . no member of the District Council will handle ... any doors .... which have been fitted prior to being furnished on the fob ...... The task of cutting and fitting "blank" or "blind" doors was traditionally performed in the Philadelphia area by carpenters employed on the jobsite. Although Frouge's contract and job specifications did not call for premachmed doors, Frouge contracted for the purchase of such doors. The union ordered its carpenter members not to hang the doors when they arrived at the jobsite. Frouge thereupon withdrew the prefabricated doors and substituted "blank" doors which were fitted and cut by the Union's carpenters. In Houston Insulation, a collective-bargaining agree- ment between the Houston Insulation Contractors Association and the union provided that an employer would not contract out work relating to "the prepara- tion, distribution and application of pipe and boiler coverings." A member of the association ordered 4 The agreement provides in pertinent part. ARTICLE XI This agreement covers . . preparation , fabrication , alteration, application, ... of cold or hot thermal insulation ... on either piping, fittings . . ARTICLE VI ... each Employer will continue to use bargaining unit Employ- 331 from a manufacturer of insulation materials stainless steel bands used to fasten asbestos material around pipes to be insulated. The bands had been precut to specification by the manufacturers employees. Custo- marily, the contractor had ordered rolls of wire which were then cut to size by members of the union. The union instructed its members on the jobsite not to install the precut bands.' Thus in National Woodwork and Houston Insulation, and unlike the situation here, there was present a provision in a collective-bargaining agreement (to which the contractor was subject) specifically preserving the work involved for the employees of the contractor. Additionally, it was shown that the task involved had been traditionally performed by those employees. In both cases the Supreme Court held that the maintenance of the work preservation provisions were not in violation of Section 8(b)(4)(B). On the basis of the foregoing review of the facts of this case in the light of the Supreme Court's most recent pronouncement in this area, we conclude that Baldwin's desire to use the Preformed jacketing in no way violated the bargaining agreement since it did not infringe upon work regularly or traditionally perfor- med by Baldwin's employees. In reaching this con- clusion we particularly rely on the fact that Baldwin does not make a jacketing such as the Preformed product and that the jacketing used in the manufac- ture of Baldwin's factory-made jacketed insulation is purchased by Baldwin precut. We further conclude that the pressure brought to bear on Baldwin by the Union was not for the purpose of regulating relations between Baldwin and its employees, but rather for its ultimate effect elsewhere, an unlawful secondary objective. Accordingly, we reaffirm our previous findings that by inducing and encouraging a work stoppage with an object of forcing Baldwin to cease using precut jacketing made by Preformed, Respon- dent Union violated Section 8(b)(4)(i) and (ii)(B) of the Act. SUPPLEMENTAL ORDER In view of the foregoing, and on the basis of the record as a whole, the National Labor Relations Board reaffirms its Order of March 22, 1967, in this proceeding. ees and not sub-contract that work described in Article XI that has been traditionally and regularly performed by its Employees ... 5 In a related companion case, a sister local to the local involved in the above-described case refused to install asbestos fittings upon which the cutting and mitering had already been done by an insulator manufacturer rather than by members of the local with jurisdictions over employees of the contractor.