Local 98, Sheet Metal Workers

104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 98, of the Sheet Metal Workers' International Association and its Agents Malcolm Hamilton, Jr. and Lincoln Baird and Cincinnati Sheet Metal & Roofing Company A/K/A Ajax Company. Cases 9-CC-435 and 9-CE-16 January 14, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On August 1, 1968, Trial Examiner Phil Saunders issued his Decision in the above-entitled proceeding, finding that Respondents 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 attached Trial Examiner's Decision. Thereafter, Respondents filed exceptions to the Trial Examiner's Decision and a supporting brief.' The Charging Party filed an answering brief. 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. 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 Trial Examiner's Decision, the exceptions, the briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified below. 1. We agree with the Trial Examiner that Article II, Section 2 and Article VIII, Section 3, in the collective-bargaining contract between Respondent Local Union No. 98 and Sheet Metal Contractors of Southern Ohio, were not intended to preserve the work or work standards of employees in the bargaining unit but rather had an impermissible secondary object and therefore were violative of Section 8(e) of the Act.' 2. We also agree with the Trial Examiner that Respondents induced and encouraged employees, 'Respondents have also requested oral argument The record, including the exceptions and briefs, adequately presents the issues and the positions of the parties We, therefore, deny the request. 'The Trial Examiner found, apparently inadvertently, that Section 2 of Article VIII was also unlawful. However, the complaint did not allege that this section of Article VIII was unlawful. Accordingly, we do not adopt this finding In adopting the Trial Examiner's findings as to the unlawful object of the collective-bargaining contract provisions considered above, we do not adopt the Trial Examiner's statement that "testimony that employees of Veach and Standard started making elbows and pipe as a result of their difficulties" is also evidence of a violation. Nor, in finding an unlawful object, do we rely on testimony, as recounted in the Trial Examiner's Decision, that Union agents Baird and Hamilton said "they had no objections where the pipe or elbows came from as long as it was made by employers paying prevailing wages " and threatened and coerced employers, in both cases for an object of inducing sheet metal contractors to cease doing business with the Charging Party, in violation of Section 8(b)(4)(i) and (ii)(B) of the Act. We rely on the following incidents as establishing inducement of employees: (a) On April 7, 1967, sheet metal worker James Allen, a member of Respondent Local Union No. 98 and an employee of Standard Sheet Metal, Inc., was installing round pipe , with some adjustable elbows, in a building under construction in Portsmouth, Ohio, when Union Agent Malcolm Hamilton appeared at the jobsite and asked Allen why he was "using nonunion pipe on the job." Hamilton told Allen he would either have to get the "right material" or he would remove employees from the job . Allen quit working on the job. (b) On August 7, 1967, Hamilton appeared at a car wash job of Standard in Portsmouth , Ohio, and pulled Union apprentice John McCoy from the job because he was installing "non-union ells." We rely on the following incidents as proving threats or coercion of employers: (a) As previously stated , in April 1967, Respondent Hamilton caused Standard's employee, Allen, and Allen' s helper to quit work on the Welfare Building project. Thereafter, and in connection with the same construction project , Hamilton told Carl Newman, Standard's secretary-treasurer, that Standard would have to "obtain the right materials for the job," that the material was improper because it was manufactured by a production union instead of a construction union, that if Standard installed the improper materials they would have to be removed, that the men would not be permitted to put up the improper materials and that they would be fined by the Union if they did. (b) In June 1967 at C. S. Veach Inc.' s Ralston Purina plant project at Wellston , Ohio, Union Steward Dick Neely and Union Agents Hamilton and Lincoln Baird told L. K. Scruggs , Veach's mechanical superintendent, that the Charging Party's round pipe and adjustable elbows could not be used because they were not made by the Sheet Metal Workers in the area under their wage scale, and that the Union's members could not install them. (c) In August 1967, on the Portsmouth , Ohio, car wash installation , Hamilton told Standard's secretary-treasurer, Newman, that he could not install 10-inch elbows which did not have union labels, and pulled apprentice John McCoy from the job. In a letter of August 10, 1967, to Standard, Hamilton wrote that he had "stopped the apprentice from installing nonunion ells on the car wash job," stated that he had asked Standard before for compliance with the collective-bargaining agreement, and laid down this ultimatum : "This is the last time I will call this to your attention . Failure to comply next time will result in charges being filed." 174 NLRB No. 22 LOCAL 98, SHEET METAL WORKERS 105 CONCLUSIONS OF LAW Delete Conclusions of Law No. 3 and 4 in the Trial Examiner's Decision, substitute therefor the following paragraphs, and renumber the present Conclusion of Law No. 5 to read No. 6. 3. By maintaining, enforcing, or giving effect to Article II, Section 2, and Article VIII, Section 3, of the Standard Form of Union Agreement entered into by Respondent Union and Sheet Metal Contractors of Southern Ohio on or about June 1, 1967, Respondent Union entered into an agreement in violation of Section 8(e) of the Act. 4. By inducing and encouraging employees of Standard and Veach to refuse to perform services or handle the Charging Party's products with an object of forcing or requiring the above-named employers to cease doing business with the Charging Party, Respondents have violated Section 8(b)(4)(i)(B) of the Act. - 5. By threatening, coercing, and restraining Standard and Veach with an object of forcing or requiring them to cease doing business with the Charging Party, Respondents have violated Section 8(b)(4)(ii)(B) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent Local No. 98, of the Sheet Metal Workers' International Association, its officers, agents, and representatives, including Malcolm Hamilton, Jr., and Lincoln Baird, shall: 1. Cease and desist from: (a) Engaging in, or inducing or encouraging any individual employed by Standard Sheet Metal, Inc., C. S. Veach, Inc., or any other person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services; or threatening, coercing, or restraining Standard Sheet Metal Inc., C. S. Veach, Inc., or any other person engaged in commerce, or in an industry affecting commerce, where, in either case, an objiect thereof is to force or require the aforementioned employers or any other person to cease using, selling, handling, transporting, or otherwise dealing in the products of, or to cease doing business with, Cincinnati Sheet Metal and Roofing Company or any other person. (b) Maintaining, enforcing, or giving effect to Article II, Section 2, and Article VIII, Section 3, of the collective-bargaining contract entered into by Respondent Union with Sheet Metal Contractors of Southern Ohio on behalf of its employer-members, about June 1, 1967, entitled "Standard Form of Union Agreement." -(c) Executing, maintaining, enforcing, or giving effect to any other contract or agreement, express or implied, with Sheet Metal Contractors of Southern Ohio or its employer-members, whereby such employers cease or refrain or agree to cease or refrain from handling, using, selling, transporting, or otherwise dealing in any of, the products of, or to cease doing business with, Cincinnati Sheet Metal and Roofing Company, or any other person. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Notify contractors, or their Association acting for its employer-members, that Respondent Union will not maintain nor insist upon the inclusion of the above enumerated articles and sections found violative of the Act, or any clauses and provisions of a similar or like nature, in any collective-bargaining contract. (b) Post in conspicuous places in all the Respondent Union's business offices, meeting halls, and all places where notices to members are customarily posted, copies of the attached notice marked "Appendix."' Copies of said notice, on forms to be provided by the Regional Director, Region 9, shall, after having been duly signed by Respondent Union's authorized representatives, including Malcolm Hamilton, Jr. and Lincoln Baird, be posted by Respondent Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) Sign and mail sufficient copies of said notice to the aforesaid Regional Director for forwarding to the Association and its employer-members for information, and, if they are willing, for posting by them in all locations where notices to employees are customarily posted. (d) Notify the Regional Director for Region 9, in writing, within 10 days of this Decision, what steps have been taken to comply herewith. 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 "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order " APPENDIX NOTICE TO ALL MEMBERS OF LOCAL UNION No. 98, SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION, AFL-CIO 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, as amended, we hereby notify you that: WE WILL NOT maintain, enforce, or give effect to Article II, Section 2 and Article VIII, Section 3 of the collective-bargaining contract entered into by this Union with Sheet Metal Contractors of Southern Ohio about June 1, 1967, entitled "Standard Form of Union 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Agreement." WE WILL NOT execute, maintain , enforce, or give effect to any contract , express or implied, with Sheet Metal Contractors of Southern Ohio or its employer-members , whereby such employers cease or refrain or agree to cease or refrain from doing business with Cincinnati Sheet Metal and Roofing Company, or any other person , in violation of Section 8(e) of the Act. WE WILL NOT engage in , induce, or encourage any individual employed by Standard Sheet Metal , Inc., C. S. Veach , Inc., or any other person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture , process, transport, or otherwise handle or work on any goods , articles, materials, or commodities, or to perform any services; and WE WILL NOT threaten , coerce, or restrain Standard Sheet Metal, Inc., C. S. Veach, Inc., or any other person engaged in commerce or in an industry affecting commerce where in either case - an object thereof is to force or require, the aforementioned employers or any other person to cease using , selling, handling, transporting , or otherwise dealing in the products of, or to cease doing business with, Cincinnati Sheet Metal and Roofing Company or any other person. LOCAL UNION No. 98, OF THE SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION (Labor Organization) Dated By (Representative) (Title) (Agent) (Agent) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office , Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686. TRIAL EXAMINER 'S DECISION STATEMENT OF THE CASE PHIL SAUNDERS, Trial Examiner: Upon charges filed on August 7, 1967 , by Cincinnati Sheet Metal & Roofing Company, herein called Cincinnati or the Charging Party, against Local Union No. 98 of the Sheet Metal Workers' International Association and its Agents Malcolm Hamilton and Lincoln Baird , herein called the Respondent Union, Local 98, or Respondents, the General Counsel issued a consolidated complaint on March 27, 1968, alleging the Respondents had violated Section 8(b)(4)(i)(u)(B) and 8(e) of the National Labor Relations Act, as amended . A hearing was held before me in Columbus, Ohio, on May 6 and 7 , 1968, and all the parties filed briefs in this matter. Upon the entire record and from my observation and demeanor of the witnesses , I make the following: FINDINGS OF FACT L THE BUSINESS OPERATIONS OF THE EMPLOYERS The Charging Party, an Ohio corporation with its plant and principal offices located in Cincinnati , Ohio, is engaged in the manufacture and fabrication of roofing, rain carrying goods, piping, siding and other sheet metal products for distribution and sale to the building and construction industry . During the past 12 months, which is a representative period, the Charging Party had a direct inflow of goods and materials , in interstate commerce, valued in excess of $50,000, which it purchased and caused to be shipped directly from points outside the State of Ohio to its said Cincinnati, Ohio, location. Standard Sheet Metal , Inc , herein called Standard, an Ohio corporation with its principal offices located at Portsmouth , Ohio, and C . S. Veach, Inc., herein called Veach, a Kentucky corporation with its principal offices located at Lexington , Kentucky are each engaged in the States of Ohio and Kentucky as sheet metal contractors in the building and construction industry. At all times material herein, the Charging Party, Standard and Veach each is and has been, an "employer" as defined in Section 2(2) of the Act , engaged in "commerce" and/or in operations "affecting commerce" as defined in Section 2(6) and (7 ) of the Act, respectively. H. THE LABOR ORGANIZATION INVOLVED Respondent Local 98 is, and has been , a labor organization as defined in Section 2(5) of the Act, and at all times material herein, Respondent Hamilton and Respondent Baird are and have been business agent and business manager of Local 98, respectively, and are and have been agents of Local 98, acting in its behalf, within the meaning of Section 2(13) of the Act. III. THE UNFAIR LABOR PRACTICES The complaint alleges that Standard and Veach have purchased certain fittings including adjustable elbows, round pipe and ducts, fabricated and assembled by the Charging Party and Buckeye Furnace and Fittings Company, herein called Buckeye, for installation at jobsites in connection with construction work performed by these sheet metal contractors . It is also alleged that on certain dates in April, July, and August , 1967,' the Respondents ordered individuals employed by Standard and Veach not to handle round pipe and adjustable elbows made by the Charging Party for installation by Standard and Veach at certain construction sites, and that by the conduct of Respondent's agents, Hamilton and Baird, Local 98 threatened, coerced, and restrained Standard, Veach, and others. It is further alleged that on June 1, Local 98 entered into a collective-bargaining agreement with Standard and Veach covering their said employees and members of Respondent Local 98, containing the following provisions: ARTICLE II Section 2 . Subject to other applicable provisions of this Agreement , the Employer agrees that when subcontracting for prefabrication of materials covered herein, such prefabrication shall be subcontracted to 'All dates are 1967 unless specifically stated otherwise LOCAL 98, SHEET METAL WORKERS fabricators who pay their employees engaged in such fabrication not less than the prevailing wage for comparable sheet metal fabrications, as established under provisions of this Agreement. ARTICLE VIII Section 3. Notwithstanding the provisions of Section 2 of this Article and Section 2 of Article II, the following items may be manufactured for sale to the trade or purchased at the rates specified below: 1. High pressure pipe and fittings (local building and constiruction wage rates) 2. Ventilators (production wage rates) 3. Louvers (production wage rates) 4. Automatic dampers (production wage rates) 5. Radiator and air conditioning unit enclosures (production wage rates) 6. Fabricated pipe and fittings for residential installations only (production wage rates) 7. Mixing (attenuation) boxes (production wage rates) 8. Plastic skylights (production wage rates) 9. Kitchen equipment (industrial rates) 10. Air diffusers, grilles, registers (production wage rates) 11. Sound attenuators (traps) (production wage rates) The complaint alleges that Local 98 and Standard and Veach have, and are continuing, to give effect to the above-contract provisions, and in so doing Standard and Veach have ceased and refrained from buying, handling, using, installing or otherwise dealing in products, including adjustable elbows, round pipe and ducts, fabricated and assembled by the Charging Party and Buckeye, and have ceased doing business with the Charging Party, Buckeye and other persons This record shows that the Respondent Union has about 1,700 members, and territorial jurisdiction in Southeastern Ohio and Kentucky comprising 65 counties. It customarily negotiates collective-bargaining agreements with multiemployer associations of contractors engaged in the sheet metal and air-conditioning business . On June 1, 1967, the Respondent Union entered into an agreement with the Sheet Metal Contractors of Southern Ohio General Counsel Exhibit No. 2 - containing the aforementioned Articles and Sections in question here.' Standard and Veach are signatory contractors with the Respondent Union. Local 98 did negotiate separate contracts with different groups. It had a contract with the Mechanical Association of Central Ohio; one with the Lima Contractors Association, another with the Portsmouth Area Association, another with the Ashland, Kentucky, area; and another one with the Zanesville, Cambridge, and 'Article VIII Section 2 of this agreement provides that On all work specified in Article I of this Agreement , fabricated and/or assembled within the jurisdiction of this Union, or elsewhere, for erection and/or installation within the jurisdiction of any other Local Union affiliated with Sheet Metal Workers' International Association, whose established wage scale is higher than the wage scale specified in this Agreement, the higher wage scale of the job site Union shall be paid to the journeymen employed on such work at the home shop or sent to the job site 107 Logan, Ohio, area, and therefore, about 80 different sheet metal contractors were split up into at least 5 different groups. It appears the Central Ohio contract has a different wage scale from the Portsmouth contract in that the Portsmouth Local 98 members are paid 27,cents more an hour than the Central Ohio members. The Portsmouth Area Association is the group that negotiated the agreement identified as General Counsel Exhibit No. 2. This contract, and the others like it, are generally referred to as the Standard Form of Union Agreement and are negotiated along with an addendum to meet the local conditions of the particular area involved. The Standard Form of Union Agreement would be the same throughout the entire United States, whether negotiated in Columbus, Chicago, or California, but the addendum makes provisions for local or area conditions, and the Standard Form of Union Agreement is also the basic contract which is consummated between the Sheet Metal Workers' International Association and the National Association of Sheet Metal Contractors. The articles and sections involved in this proceeding, as aforestated, are provisions within the basic Standard Form of Union Agreement, and therefore, effective and used throughout the entire country. The Respondent Union also has a blue book put out by the International and which contains a partial list of sheet metal contractors who are organized by the various locals of the Sheet Metal Workers' International. The Charging Party has a collective-bargaining agreement with Local Union 183, Sheet Metal Workers' International Association, and this agreement, expiring on October 31, 1968, sets forth the wages, and working conditions of the Charging Party production and maintenance employees at its plant in Cincinnati, and the wage rates for their production employees are less then those contained in the construction agreement of the Respondent Union. It appears that Local 183 is not a construction local but rather a shop or production local although it is a part of the same International as Local 98. James Allen was employed as a sheet metal worker by Standard on a construction site in Portsmouth, Ohio. Allen testified that on April 7, he was installing round pipe, with some adjustable elbows, in the basement of the Welfare Building under construction in Portsmouth, when Respondent Malcolm Hamilton appeared on the job and wanted to know what Allen was doing "using nonunion pipe on the job." Hamilton then informed Allen that he would either have to get the "right material" on the job or he would take employees off the job. Allen stated that Hamilton told him he would confer with Carl Newman to get the matter straightened out, but that he and his helper then quit on this particular job and went to another part of the building to work Allen testified that 2 or 3 weeks later they received a shipment of round pipe and elbows made in a union shop and the initial material and pipe was sent back. Carl Newman, secretary-treasurer of Standard, testified that on April 7, Respondent Hamilton advised him that Standard would have to "obtain the right materials for the job." Hamilton told him the material he had on the job was improper because it was manufactured by a production union instead of a building trades union or construction union. Hamilton also told Newman that if Standard installed the improper materials, such would have to be removed and further that the men would not be permitted to put up the improper materials and would be fined by the Respondent Union if they did. Herman Raynard, general manager and vice president of Standard, testified that he was aware of the difficulties 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the Portsmouth job and went to see Allen and Allen told him that Hamilton had instructed him not to use the pipe and elbows that were on the jobsite and Hamilton had told him they would have to either make it or "use construction paid elbows." The material in question had come from Lennox Heating Co. or Buckeye and which was an unacceptable source of supply to Local 98. Raynard then wrote a letter to the Respondent Union on April 7, requesting that Local 98 place their order of round pipe and elbows with an approved wholesale manufacture, and the purchase order by Standard for quantities of the above material was attached to the letter.' Standard received no reply to their letter, and as a result Raynard then called Respondent Baird in Columbus and inquired about this matter. Raynard testified that Baird informed him he was not in the business of buying materials for contractors and that Standard would have to secure it themselves. Upon being asked for source of supply, Raynard was advised to look in the "Green Book." Raynard said he did not have such a book and asked for the closest supplier. Baird then suggested United Sheet Metal, and Standard then placed the order with United Sheet Metal Respondent Hamilton admitted visiting the Welfare Building construction job in Portsmouth and talking to Allen. Hamilton stated that he inquired where the round pipe came from and whether Standard made it or purchased it. Hamilton could not recall any conversation with Newman, but admitted talking with Raynard and asking him "about the contract insofar as pipe and such." Hamilton testified that prior to the events involving the Welfare Building, he had talked to Newman about the installation of prefabricated material, and they had gone over the contract and the clause pertaining to pipe for commercial jobs. Hamilton stated Newman then told him that Standard had purchased some pipe from United Sheet Metal and from Kirk and Blum for use on their commercial jobs. Respondent Baird testified that when he received the call from Raynard, as aforestated, he told Raynard he was not his purchasing agent. Baird stated they then discussed several different suppliers who manufacture the materials m question, and he then gave Raynard the names of Myers Brothers and United Sheet Metal, and told Raynard that the closest place he could purchase adjustable elbows was at United Sheet Metal at Columbus, Ohio. L. K. Scruggs was the mechanical superintendent for Veach on the Ralston Purina Plant construction project in Wellston, Ohio, and had signed the "Portsmouth Agreement" with Local 98 in June, 1967. This agreement had a higher wage scale than the Columbus Agreement which Local 98 had with Sheet Metal Workers in the Columbus area. It appears from this record that in early June, Scruggs ordered round pipe and adjustable elbows from Vorys Bros., a distributor for the Charging Party, for use on the Ralston Purina Project, and as indicated, these were the products of the Charging Party with "ajax" stamped on them.4 When the pipe and elbows arrived Steward Dick Neely informed Scruggs that these products could not be used because they were not made by the Sheet Metal Workers in the area under their wage scale. Respondent Hamilton then appeared at the jobsite, and Scruggs showed him a letter from Vorys Bros. stating that the products in question were made by a company (the Charging Party) who had a contract with the Sheet Metal Workers' International. Scruggs testified that Hamilton 'G.C. Exhs 4A, 4B, and 5. told him the letter "was not any good" and that Veach could not use the material, and after making a telephone call Hamilton came back and informed him the members of the Respondent Union could not install these products made by the Charging Party. Scruggs then acquired pipe and elbows that had "United" stamped on them, and called Vorys Bros. to pickup the Ajax products. Scruggs stated there was no difference between the Ajax products and those he received from Union. Scruggs related that he also had a conversation with Respondent Baird on the above difficulties, and Baird told him that the material in question was made by a production local and the Respondent Union was not installing this type of material. Scruggs testified that as a result of this problem he had to postpone the installation of that particular pipe on the Ralston building for about a month while waiting for the replacement products, as aforementioned. Respondent Hamilton testified that the steward on the Ralston project had noticed some pipe and a box marked with Ajax, and wanted to know about it. Hamilton then checked his "blue book," but could not find it listed and after talking with Baird learned that Ajax products were made by the Charging Party. Hamilton admitted that Scruggs asked him if he could use the material in question at the Ralston job, and also inquired where he could purchase such products. Respondent Baird testified that in a telephone conversation concerning the problem on the Ralston project, he informed Scruggs that the closest place to purchase the materials in question was from United Sheet Metal. The third construction site directly involved in this case was a car wash installation in Portsmouth, Ohio, and on or about August 7 Standard was working on this project. Carl Newman testified that Respondent Hamilton appeared on this job and "pulled" Standard's employee apprentice, John McCoy, off the job. Hamilton then informed Newman that Standard could not install the 10-inch elbows which did not have union labels on them. Newman advised Hamilton that he did not have any 10-inch United Sheet elbows in stock. Hamilton then gave him permission to put the nonunion elbows on temporarily, but when he got United elbows, he would have to replace the nonunion ones On August 10, Hamilton wrote a letter to Standard, and the pertinent paragraphs state as follows: I stopped in your office yesterday and since you were out I talked with Carl (Newman), I stopped the apprentice from installing non-union ells on the car wash job. If you will remember I have asked,you to comply with the Standard Form of Union Agreement before, This is the last time I will call this to your attention. Failure to comply the next time will result in charges being filed.' Respondent Hamilton testified that on the occasion in question Newman told him the elbows they were installing was due to an emergency situation, that they had been taken out of the residential stock, and would be replaced with union made products. Hamilton stated in his testimony that Newman made the suggestion that the elbows be replaced in accordance with the agreement between the parties, and there was "no coaching" from him. Hamilton testified that the last time he checked the temporary elbows had not been replaced on the car wash installation. On cross-examination Hamilton admitted he *'Ajax" is the trade name for the products made by the Charging Party 'G.C. Exh. 3. LOCAL 98, SHEET METAL WORKERS stopped McCoy from working because he was installing a nonunion elbow, and that he then told Newman he was going to prefer charges if they continued this practice. In addition to the above testimony involving certain incidents at the three construction sites, the General Counsel also produced related testimony, under these circumstances and other situations, to show that the contraclors involved herein, and others, always or normally purchased round pipe, adjustable elbows, and the additional items listed under Article VIII, Section 3, prior to their recent difficulties, as aforestated.6 Scruggs had been employed for many years as a sheet metal worker all the way up to mechanical superintendent for Veach, and the procedure he has observed is that adjustable round elbows and round pipe (24 gauge or lighter) are purchase items unless they have to be specially made. Scruggs testified that on Ralston Purina job he set up a field shop and therein fabricated rectangular fittings and ducts and various other types of fittings, but on this job they purchased round pipe and adjustable elbows because such items are not made in the field. Scruggs stated he has seen adjustable elbows being made in a sheet metal contractors main shop when such shop is equipped with the necessary tools and machinery. Veach did make round pipe up to 3 foot lengths in its field shop from galvanized sheet metal for special needs on the Ralston job. Scruggs testified that if you had the equipment or the machinery a qualified sheet metal worker could make an adjustable elbow in a time span running from 45 minutes up to 90 minutes. This record shows that Standard's practice was also to purchase round pipe and adjustable elbows. Standard's employee Allen has been in the sheet metal trade in the Portsmouth area for 22 years and credibly testified that the practice was always to purchase such items, 24 gauge or thinner. Allen stated that the exception was for an odd or short piece of pipe which they would sometimes make themselves in their shop. Allen further stated he has never made - in training or otherwise - any elbows 24 gauge or thinner, nor had he ever seen an adjustable elbow made in the shop. Carl Newman has been in the sheet metal business for 36 years, and testified in his experience adjustable elbows are purchased, and that he cannot make such an elbow. He also testified that the practice has always been to purchase round pipe, 24 gauge or thinner and although he had equipment to make round pipe, it was more convenient and less expensive to buy it. In regard to the 11 items in Paragraph VIII, Section 3, of the Standard Form of Union Agreement, as previously set forth herein, Newman and Scruggs stated that generally Standard and Veach would not make any of these items. Raynarcl has been in the business for 22 years, and testified that adjustable elbows were always purchased, and the round pipe, 24 gauge or thinner, was always a purchased item except for odd sizes. Raynard stated his shop has never made adjustable elbows and has never made rigid elbows (except for 16 gauge or heavier), because they lack the equipment to do so. He testified up until 1967, Standard had purchased the Ajax brand of adjustable elbows and round pipe and Local 98 had never given him any problems in relation thereto, and the only reason Standard stopped purchasing was because of the incident in April involving Respondent Hamilton and '[t appears that the restriction on round pipe and adjustable elbows in the contracts negotiated by Local 98, applies to commerical and industrial jobs, and hat same provisions in question or restrictions do not apply to residential jobs. 109 Standard, as previously noted herein As regards the items set out in Article VIII, Section 3, none of the items have been fabricated in Standard's shop. Raynard has been in a shop where some odd size louvers have been made, but all of the items in that Article and Section are purchase items. The General Counsel introduced testimony through Louis Erf of Vorys Brothers, to the effect that Vorys is a sheet metal distributor within a radius of 100 miles of Columbus, Ohio, that he has been involved in the sale of such products for many years, and that Vorys sells the 24 gauge or lighter round pipe and adjustable elbows of the Charging Party under the brand name of Ajax. Erf testified that beginning in 1967, Vorys Brothers' sale of the Ajax brand to the sheet metal contractors organized by Local 98 has "dried up," and these customers had advised Vorys they cannot accept the Ajax brand because Local 98 does not approve of them. Prior to 1967 their sales to the organized sheet metal contractors of the furnace pipe and elbows was on the average about $10,000 to $12,000 per year The Respondent Union produced testimony through Hamilton relating to practices in the fabrication of elbows and round pipe Hamilton testified that at one time he was engaged in Columbus as a sheet metal contractor, and as a contractor he made round pipe . . . 10 gauge or lighter . . . and that he also had equipment to fabricate elbows and on some jobs made adjustable ones. Hamilton stated that after October, 1967, he returned to the steel metal trade, and while working for H. K. Ferguson in Columbus they fabricated round "pipe and 6-inch adjustable elbows and that he himself made 26-gauge adjustable elbow. Hamilton testified the cost per elbow was $2.50 plus his time in making it ... about 25 minutes after he had laid out the first one, and he was being paid $5.29 per hour. Hamilton admitted he had purchased 6 inch adjustable elbows for about 90 cents each, and then went on to state that about 50 percent of the sheet metal contractors made adjustable elbows even though they could purchase them for about one-third of the price. Denner Monroe testified he had a sheet metal shop between 1960 and 1965, and with sufficient equipment which enabled him to make round pipe and adjustable elbows. Monroe obtained employment with Veach in August, and testified that on the Ralston Purina job Veach fabricated round pipe and rigid elbows but heavier than 24 gauge. The General Counsel and the Charging Party contend that the evidence in this record shows that the contractors involved always purchased round pipe and adjustable elbows prior to the recent difficulties, and the Respondent Union, in its interpretation of Article II, Section 2, and Article VIII, Section 3, as aforestated, caused the employees of Veach and Standard to refuse to install these items unless they had been purchased from a manufacturer who paid the construction rate. It is further contended that the above activity was calculated to benefit the Union generally, that no benefits flowed to the employees of the boycotted employer, that the benefits went to the other members of the same local union working for other employers, and that there was no work preservation as such, but an effort to control the boycotted employers as opposed to the boycotted employees. The General Counsel points out that if the objects of the Respondent Union's activity was to preserve, or to recapture work for employees of Standard and Veach - then the activity would be primary, but if it was calculated to satisfy union objectives elsewhere - to 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD get business for United Sheet Metal of Columbus - who were also members of Local 98 - then the activity is secondary in nature. The Respondent Union argues that the prefabrication clause set out in Article II, Section 2 and further defined in Article VIII, Section 3, are valid primary clauses designed to preserve work for sheet metal workers and are, therefore, outside the scope of Section 8(e) of the Act, and the Supreme Court's decision in National Woodwork Manufacturers' Association v. N.L.R.B. 386 U.S. 612 supports this position. It is further contended that the above Articles and Sections of the Respondent Union's agreement with Standard and Veach are designed to preserve work that is traditionally performed by jobsite sheet metal workers and to maintain union standards, that round pipe and elbows are customarily fabricated at the construction site or in a fabrication shop paying the construction rate, and therefore the Respondent Union was seeking to preserve work traditionally performed by sheet metal workers by enforcing its labor agreement with Standard and Veach, and that the Respondent Union had no dispute with the Charging Party. Section 8(e) of the Act reads as follows: It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforceable and void. Provided, That nothing in this subsection (e) shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work: Provided further, That for the purposes of this subsection (e) and Section 8(b)(4)(B) the terms `any employer,' `any person engaged in commerce, or in industry affecting commerce,' and `any person' when used in the relation to terms any other producer, processor, or manufacturer,' `any other employer,' or `any other person' shall not include persons in the relation of a jobber or manufacturer, contractor, or subcontractor working on the goods or permises of the jobber or manufacturer or performing parts of an integrated process of production in the apparel and clothing industry: Provided further, That nothing in this Act shall prohibit the enforcement of any agreement which is within the foregoing exception. Whether or not the aforementioned provisions in the collective-bargaining agreements violate Section 8(e) of the Act, is to be determined by the object of the restrictive clauses or provisions in question. In this instance, as is generally true in cases in which this section of the Act is involved, "the distinction to be drawn as best one can is between an object and a consequence."' If the contractual provisions in question had as their object the preservation or protection of work traditionally and customarily performed by employees in the bargaining unit, as the Respondent Union contends, they may be held harmless; but if instead they were designed to accomplish other union objectives, as the General Counsel and the Charging Parties assert, they are proscribed by the provisions of Section 8,(e)8 The credited evidence in this record is most conclusive in showing that the employer members of the Sheet Metal Contractors including Veach and Standard - normally and regularly purchase from mass production manufacturers practically all, if not the entire list of items listed under Article VIII, Section 3, except in those limited situations wherein emergency conditions existed, or where special small sizes of pipe or other, items are required and such products were not readily available from the manufacturer. The General Counsel offered reliable testimony through numerous witnesses in establishment and in amplification of these facts, as previously noted herein. The Respondent Union then attempted to refute this evidence by testimony of its own witnesses In essence, the testimony by Hamilton shows that at "one time" he made round pipe and had equipment to make elbows, and while his testimony relating to recent employment with H. K. Ferguson directly implies that this firm fabricated round pipe and adjustable elbows, this practice must be viewed in full consideration of the overall and general operations of the contractor - and there is no testimony by Hamilton that the fabrication of these items were traditionally and customarily performed in the.normal or regular course of their work. It is readily admitted that in emergency situations or where irregular and small size fittings were required the same were made on the job or in the shop. However, this in no way reflects on the past traditional operations and practices of the sheet metal contractors prior to their difficulties and, furthermore, the "drying up" in the purchasing of such products by the Respondent Union would necessarily now result in increased fabrication of these items. It is also noted that Hamilton inspected Veach's field shop at the Ralston Purina jobsite, and even admitted in his testimony that this shop was not sufficiently equipped to make adjustable elbows. It seems obvious to me that if such an item was customarily fabricated, Veach would have had the machinery to do so and this is especially significant with Hamilton's further admission that all Veach needed in its shop was a $70 beading machine in order to make adjustable elbows. The testimony by Denner Monroe, as aforestated, must be viewed in this same light, and in no way indicates the usual practices deviated from the normal procedure in purchasing these items. Monroe also admitted that Veach fabricated only "rigid elbows" on theRalston Purina job. The Respondent Union does not contend, nor did it offer any evidence that the other items listed in Article VIII, Section 3, were not normally purchased. In essence, what is directly relevant in this case is whether employees in the unit customarily and traditionally fabricated round pipe and adjustable elbows and the other items listed in Article VIII, Section 3, and did the contractors assign such tasks to their employees in the general course of their business. I submit this record clearly shows that all the items in question were normally purchased, and the employees only fabricated these items in situations where unusual or emergency work conditions existed, and, therefore, I cannot find the fabrication of these materials to be claimable unit work. I conclude that the work which was subject to the contractual provisions here in question was not traditionally and customarily ' 'Houston Insulation Contractors v I N L R B., 1 357 F_2d 182, 187 (C.A15), reversed in part on other grounds 1 386 U S. 664, Syracuse Suppty (Company, 139 NLRB 778, 781 'National Woodwork Mfg. Assn , supra LOCAL 98, SHEET METAL WORKERS performed by the employees, and the object of the restrictions so imposed was not the preservation of unit work. All the parties agree that the main case controlling this proceeding is that of National Woodwork, supra, recently decided by the Supreme Court. In that case the carpenters had a contract with the Frouge Corporation which provided tha. they would not handle doors which had been fitted prior to being furnished on the job. Frouge had purchased, and sought the Union to install, premachined doors manufactured by National Woodwork. The Union ordered its carpenter members not to hang the doors. Frouge withdrew the prefabricated doors and substituted doors that were satisfactory to the Union. The question was whether the Union had committed an unfair labor practice under Section 8(e) of entering into an "agreement whereby the employer . . . agrees to or refrain from handling . . any of the products of any other employer . . " A majority of the court stated that the Union had not done so because it was preserving work which had been traditionally that of the union members. However, -Mr. Justice Brennan's opinion, speaking for four members of the court, contained the following: The determination whether the `will not handle' sentence of Rule 17 and its enforcement violated Section 8(e) and 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 bystander, and the agreement or boycott would, within the intent of Congress, become secondary. There need not be an actual dispute with the boycotted employer, here the door manufacturer, for the activity to fall within this category, so long as the tactical object of the agreement and its maintenance is that employer, or benefits to other than the boycotting employees or other employees of the primary employer thus making the agreement or boycott secondary in its aim. The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer vis-a-vis his own employees. The concurring opinion by Mr. Justice Harlan stated. The facts as found by the Board and the Court of Appeals show that the contractual restrictive-product rule in question, and the boycott in support of its enforcement, had as their sole objective the protection of union members from a diminution of work flowing from changes in technology. Union members traditionally had performed the task of fitting doors on the jobsite, and there is no evidence of any motive for this contract provision and its companion boycott other than the preservation of that work. This, then, is not a case of a union seeking to restrict by contract or boycott an employer with respect to the products he uses, for the purpose of acquiring for its members work that had not previously been theirs. In applying the guidelines of National Woodwork to the instant case, it appears to me that Local 98's refusal to handle the products in question of the Charging Party and other manufacturers was not addressed to labor relations of the contracting employer vis-a-vis his own employees. Nothing herein required Standard or Veach to do anything different with their employees. As pointed 111 out, the Respondent Union simply forced a change in the source of supply. Furthermore, under the guidelines the objectives of the Respondents must also be preservation of work for the employees of Standard and Veach - employees of the Employer on whom pressure is being applied. Yet, in addition to what I have already found in this respect, Respondents Hamilton and Baird admitted they would even have no objection to the use of elbows or round pipe made by construction locals in California, New York or elsewhere, if they were paying the prevailing wage rate, and reference in establishment of such could be ascertained by using the blue book. As previously noted herein, there is some testimony that employees of Veach and Standard started making elbows and pipe as a result of their difficulties. However, this too is violative of National Woodwork as Local 98 is restricting by boycott or contract an employer, and products he uses, for the purpose of acquiring for union members work that had not been previously theirs. In essence, the Respondent Union- has been encouraging or pushing the sale of products made by United Sheet Metal in Columbus, and certainly this cannot be interpreted to help in any way work preservation of Standard and Veach employees. The boycotting employees gained no benefits from their refusal to install products manufactured by the Charging Party and others nor did fellow employees of their respective employers. It is not enough that such benefits were reaped by employees of another employer, United Sheet Metal and who happen to be members of the same local, to avoid liability from Section 8(b)(4)(B). It is also obvious from this record that ,it has been the practice of the Respondent Union to use, the Standard Forms of Union Agreements supplied by ^ their International Association as the foundation for its collective-bargaining contracts. Possibly there were areas in which deviations were permitted, but the Respondents in this case did not deem any deviations to be permissible when it came to applying Article VIII, Section 3, and particularly item 6. When asked whether or not Local 98 had to have the approval of the International Association on his interpretation of the contract and provisions in question, Respondent Baird replied, "It has been in the Standard Form of Union Agreement of the International Association and we abide by the Standard Form, for or from the International." This reply and the testimony of Baird and Hamilton that they had no objections where-the pipe or elbows came from as long as it was' made by employers paying prevailing wages, clearly demonstrates an object to benefit union members generally, and are "tactically calculated to satisfy union objectives elsewhere," and are not "addressed to the labor relations of the contracting employer vis-a-vis his awn employees" which the Supreme Court has said is "the touchstone" in determining the validity. The language in Article II, Section 2,' and in Article VIII, Sections 2 and 3, must be regarded' as strong 'Article Il, Section 2 of the Standard Form of Union Agreement, effective from June 1, 1964 until May 31, 1967, read as follows: "Subject to other applicable provisions of this agreement, the Employer agrees that when subcontracting for prefabrication of materials covered herein, such prefabrication shall be subcontracted to fabricators who pay their employees engaged in such fabrication not less than the prevailing wage for comparable sheet metal fabrication as established under agreements between this union or other local affiliates o'f_ Sheet Metal Workers' International Association and sheet metal fabricators." On April 6, 1966, the Standard Form of Union Agreement was changed to read as indicated prior herein 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD indications that the underlying purpose was to require that the employers abandon their former practice of purchasing the items in the open market, and to require that they must buy such items only from employers paying the wage standards that the agreement specifically provides. Such a limitation, when considered in conjunction with all the circumstances and representations, speaks in terms of secondary control and not primary unit protection. Furthermore, what has been said regarding adjustable elbows and round pipe applies with equal force to the other items listed in Article XIII, Section 3. The employees of the contractors have seldom, if ever, fabricated any such articles. Instead, they have always purchased them from manufacturers with few exceptions. In the final analysis I have found that the fabrication of the 11 items to be neither unit work nor fairly claimable as unit work. Article 2, Section 2, and Article VIII, Section 3, then are not aimed at unit preservation, and if their thrust serves no cognizable primary unit purpose then it is only reasonable to conclude that the aim is a secondary one Accordingly I find Article 2, Section 2, and Article VIII, Sections 2 and 3, to envisage no direct benefits to unit employees, but are designed to disrupt established business relationships between employer members and their suppliers, and thus to have a secondary thrust which makes it unlawful within the meaning of Section 8(e) of the Act. I further find that the Respondents violated contractual clauses in question by its conduct on and after April 1967, in seeking to enforce those clauses, as detailed hereinafter.'" The General Counsel maintains the Respondents enforced or attempted to enforce the above clauses in their contracts by inducing and encouraging individuals employed by Standard and Veach to refuse, in the course of their employment, to use, install, or otherwise handle or work on goods, articles, materials, or commodities purchased by their respective employers from the Charging Party or its distributor or from other manufacturers and distributors, and as a consequence of Respondents' acts and conduct, individuals employed by Standard and Veach refused to handle or install the items in question at the various construction and/or jobsites where they were employed by their respective employers thereby restraining and coercing Standard and Veach. Credited evidence in this record shows that Respondent Hamilton told Standard's employee, James Allen, that his employer would either have to get the "right material" on the job or he would take union employees off the job, as aforestated. On the Welfare Building project Hamilton also informed Standard's Carl Newman that he would have to use the correct materials "with the construction union label," that the employee members of Local 98 working for Standard would not be permitted to install "In Local Union No 26, Sheet' Metal Workers' International Association, 168 NLRB No 118, the Board affirmed a finding that Article VIII, Section 3, involved in the instant case, was in violation of the secondary boycott provisions of the Act. It is noted in this case there was no finding that Article II, Section 2, was violative of the Act, because there was no proof that it had been used to switch sources of supply that historically had not been that of the sheet metal workers in the work unit involved The uncontradicted evidence in the instant case is that as regards Veach, Standard, and the fabricators in the Portsmouth area, Article II, Section 2, has so been used See also Sheet Metal Workers' Union Local 216, 172 NLRB No. 6, involving the same contract provisions - Article II, Section 2, and Article VIll, Section 3 - and wherein the Board also affirmed a finding that these provisions were violative of the Act. Article II, Section 2 in the instant case takes on an unlawful connotation when considered in conjunction with Article VIII, Section 3. the products on hand, and that the employees "would be fined" if they installed such materials. The above statement to Allen constituted a clear inducement and threat that discipline or reprisals would be taken for installing the products in question and must be deemed violation of 8(b)(4)(i) and (n)(B).r' The Act does not require that a union agent refrain from making the law known to its members, but here Hamilton went beyond and with explicitness told Allen that he would be laid off for so doing. Hamilton's statement to Newman is likewise violative. This remark, following the conversation with Allen, must be regarded as threatening or inducing employees of Standard in refusing to handle or to perform their work with an object of forcing Standard to cease doing business with the original supplier or manufacturer It is noted that Hamilton's statement to Newman not only informed him that employees could not install the original items on hand, but was also accompanied with a specific threat of discipline and reprisal that if members of Local 98 did so they would be fined As aforestated, this record shows that Hamilton also appeared at the jobsite wherein Standard was completing work on a carwash, and pulled employee John McCoy off the job and then informed Newman that the elbows could not be installed, and admittedly told Newman that Local 98 would prefer charges if such a practice continued, and the latter also reduced to writing in a letter sent to Standard. The above conduct by Hamilton constituted not only an outright threat of economic reprisal, but also demonstrated instant discipline in immediately taking McCoy off this particular job upon Hamiltons' initial arrival at the jobsite. Hamilton's subsequent statement and letter to Newman and Standard that Local 98 members would be fired for continuing installations, is also regarded as threatening employees, employers, or persons with an object of forcing this employer to cease doing business with the original supplier of the elbows in question. This record reveals that Respondent Hamilton also told Veach's Superintendent Scruggs at the Ralston Purina job, he could not use the materials made by the Charging Party and the members of Local 98 working for Veach could not install these products. Under all the particular circumstances involved in this case, I find this remark constitutes a violation of 8(b)(4)(ii) as a threat to cease doing business with the Charging Party 12 IV. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, it shall be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following- CONCLUSIONS OF LAW 1. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act , and at all times "The terms induce or encourage, found in Section 8(b)(4)(i), have been consistently construed as broad enough to include in them every form of influence and persuasion . International Brotherhood of Electrtcal Workers, Local 501 v. N.L R B, 341 U S. 694, 701-702. The Board has stated that inducement or encouragement need not be successful to violate the Act "Building and Construction Trades Council of Tampa, 132 NLRB 1564, 1566 and 1567 LOCAL 98, SHEET METAL WORKERS 113 material herein Respondent Hamilton and Respondent Baird have been agents of Respondent Union acting in its behalf within the meaning of Section 2(13) of the Act. 2. The Charging Party, Standard, and Veach are employers within the meaning of Section 2(2) of the Act and are engaged in commerce within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act. 3. By maintaining, enforcing, and giving effect to Article Il', Section 2, and Article VIII, Sections 2 and 3, of the contracts made by and between the parties on or about June 1, 1967, the Respondents entered into agreements in violation of Section 8(e) of the Act. 4. The Respondents have engaged in unfair labor practices within the meaning of Section 8(b)(4)(i)(B) and 8(b)(4)(ii)(B) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]