Local 141, Sheet Metal Workers

LOCAL 141, SHEET METAL WORKERS Local Union No. 141 of the Sheet Metal Workers' International Association and its agents Raymond Bickers and John F. Wonderly ' and Cincinnati Sheet Metal & Roofing Company A/K/A Ajax Company. Case 9-CC-424-1 February 27, 1969 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On August 21, 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 and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. 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 this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner, as modified herein. CONCLUSIONS OF LAW Delete Conclusion of Law 3, in the Trial Examiner's Decision, and substitute therefor the following paragraph: 3. By engaging in, or inducing, or encouraging employees of B. & J. Jacobs Company and Feldkamp Sheet Metal, Inc., to engage in, a refusal to handle the Charging Party's products; and by threatening, coercing, or restraining B. & J. Jacobs Company, Feldkamp Sheet Metal, Inc., Ray Williams, Inc., and Sheet Metal Engineering Company; where in either case an object thereof was -to force or require the aforementioned employers to 'We correct the quoted phrase in the sixth paragraph in the section entitled "Ill. The Unfair Labor Practices" of the Trial Examiner's Decision to read that Respondent Local 141's business agent Raymond Bickers informed the employers that the contract clause would have to be "lived up to." In adopting the Trial Examiner's findings as to the unlawful object of article II, section 2, and article VIII, section 3, in Respondent Union's collective-bargaining contract with Cincinnati Sheet Metal Contractors Association, we do not adopt the Trial Examiner's statement that "testimony that employers involved have started making round pipe as a result of their difficulties with Local 141" is also evidence of a violation. 843 enter into an agreement which is prohibited by Section 8(e) of the Act or to force or require the aforementioned persons to cease doing business with the Charging Party and other persons, Respondents have violated Section 8(b)(4)(i)(ii) (A) and (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 Union No. 141 of the Sheet Metal Workers' International Association, its officers, agents, and representatives, including Raymond Bickers and John F. Wonderly, shall: 1. Cease and desist from engaging in, or inducing, or encouraging any individual employed by B. & J. Jacobs Company, Feldkamp Sheet Metal, 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 B. & J. Jacobs Company, Feldkamp Sheet Metal Inc., Ray Williams, Inc., Sheet Metal Engineering Company, 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 employer or self-employed person to enter into an agreement which is prohibited by Section 8(e) of the Act, or to force or require the aforementioned persons 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 a/k/a Ajax 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 the association acting for contractor members, that Respondent Union will not maintain nor insist upon the inclusion of article II, section 2, and article VIII, section 3, of the collective-bargaining contract entered into by Respondent Union and Cincinnati Sheet Metal Contractors Association, about July 3, 1967, entitled, "Standard Form of Union Agreement," found violative of the Act, or any clauses and provisions of 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."2 Copies of said notice, on forms provided by the Regional Director for Region 9, shall, after having been duly signed by 'In the event that this Order is enforced by a decree of a United States 174 NLRB No. 125 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Union's authorized representatives, including Raymond Bickers and John F. Wonderly, 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 contractor-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 from the date of this Decision what steps have been taken to comply herewith. 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. 141, OF THE SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION Pursuant to the 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 engage in, induce, or encourage any individual employed by B. & J. Jacobs Company, Feldkamp Sheet Metal, 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 B. & J. Jacobs Company, Feldkamp Sheet Metal Inc., Ray Williams, Inc., Sheet Metal Engineering Company, 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 employer or self-employed person to enter into an agreement which is prohibited by Section 8(e) of the Act, or to force or require the aforementioned persons 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 a/k/a Ajax Company or any other person. 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 513-684-3663. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PHIL SAUNDERS, Trial Examiner: Upon a charge filed on May 31, 1967,' by Cincinnati Sheet Metal and Roofing Company, herein called the Charging Party, against Local Union No. 141 of the Sheet Metal Workers' International Association and its Agents Raymond Bickers and John F. Wonderly, herein called the Respondent Union, Local 141 or collectively Respondents, the General Counsel issued a complaint on March 27, 1968, alleging the Respondents had violated Section 8(b)(4)(i), (ii)(A) and (B) of the National Labor Relations Act, as amended. A hearing was held before me on May 9 and 10, 1968, in Cincinnati, Ohio, and the General Counsel and Respondent Union subsequently filed timely 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. Feldkemp Sheet Metal, Inc., herein called Feldkemp; B. & J. Jacobs Company, herein called B. & J.; and Ray Williams, Inc., herein called Williams, Ohio corporations, are engaged in the Cincinnati, Ohio, area as sheet metal contractors in the building and construction industry. Admittedly, at all times material herein, the Charging Party, Feldkemp, B. & J. and Williams each is and has been, an "employer" as defined in Section 2(2) of the Act, engaged in "commerce" and/or operations "affecting commerce" as defined in Section 2(6) and (7) of the Act, respectively. II. THE LABOR ORGANIZATION INVOLVED LOCAL UNION NO. 141 OF THE SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION (Labor Organization) Dated By (Representative) (Title) 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. Local 141, is, and has been, a labor organization as defined in Section 2(5) of the Act, and at all times material herein, Respondent Bickers, and Respondent Wonderly are and have been business manager and business agent of Local 141, respectively, and are and have been agents of Local 141, acting in its behalf, within the meaning of Section 2(13) of the Act. All dates are 1967 unless specifically stated otherwise. LOCAL 141, SHEET METAL WORKERS 845 III. THE UNFAIR LABOR PRACTICES It is the contention of the General Counsel and Charging Party that the aforementioned Sections of the Act were so violated because Respondents coerced or threatened Feldkemp, B. & J., Williams, and have encouraged and induced individuals employed by the above-named employer, and others, with an object of compelling such employers and employees to give effect, agree, and to enter into a collective-bargaining contract containing provisions violative of Section 8(e) of the Act. At all times material, Respondent Local 141 is and has been the collective-bargaining representative for the employees of contractors, and for several years they and Respondent Local 141 have been parties to collective-bargaining agreements, the last such agreement having been executed on or about July 3. The following provisions are contained in that contract (known as the Standard Form of Union Agreement) between the contractors in the Cincinnati area mentioned above and Respondent Local 141. 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 fabricators who pay their employees engaged in such fabrication not less than the prevaiiling wage for comparable sheet metal fabrication, 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 construction wage rates) 2. Ventilators (production and wage rates) 3. Louvers (production wage rates) 4. Automatic dampers (production wage rates) 5. Radiator and air conditioning unit 6. Fabricated pipe and fittings for residential installation only (production wage rate) 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 rate) The General Counsel points out that while sheet metal items and fittings are fabricated to some extent by Feldkemp, B. & J., and Williams in their shops and for installation by their employees at construction and/or jobsites, adjustable elbows have never been fabricated by these contractors and then guage round pipe of 24 gauge or less has been fabricated by them only on rare occasions. He maintains such items and fittings were regularly purchased by the above contractors from the Charging Party, its distributor, Corken Steel Products Company, and/or other manufacturers or distributors. The General Counsel's theory is that the action or conduct taken by the Respondents - detailed later herein - is not directed to legitimate work preservation objects, but is tactically calculated to benefit the union generally rather than the employees of the employers involved. Along with other arguments, the Respondents maintain there has been a substantial continuation in the fabricating of all gauges of pipe and especially so in the heavier gauges because of the limited capacity of automatic equipment, that there is no "job difference" between an adjustable and a rigid elbow, and that Local 141 has merely maintained its works preservation rights with a prevailing wage clause which has approval by the courts and the Board. Local 141 represents approximately 85 sheet metal contractors in the Cincinnati area, and engages in collective-bargaining negotiations for contracts with the Cincinnati Sheet Metal Contractors Association. Not all the employers belong to the Contractors Association, but each one signs a contract with the Respondent Union.' The production employees of the Charging Party were organized by Local 141 in 1958, but in 1960 the Sheet Metal Workers' International turned the Charter over to its Local 183. There is no evidence that Local 141 has any designed plans to become the representative of employees of the Charging Party. In 1965, Local 141 filed charges against Sheet Metal Engineering Company of Cincinnati under the grievance procedure contained in the Standard Form of Union Agreement and pertaining to the subject matter of round pipe and adjustable elbows. This particular dispute was finally brought before a National Joint Adjustment Board for a decision and pursuant thereto, Local 141 was notified to file charge alleging violation of their collective-bargaining contract. In September 1965, after the decision from the National Joint Adjustment Board came down, Respondent Raymond Bickers, business manager for Local 141, held a meeting with sheet metal employers or contractors in his jurisdiction for a discussion regarding pipe and elbows. Bickers informed the employers present that the clause in the contract would have to be "lined up to" or other charges would be filed, and that the prevailing wage rate would have to be paid for the fabrication of the items. Bickers stated that one of the employers in attendance then asked him if United Sheet Metal Company in Columbus, herein United, was an acceptable source to buy these materials from, and he replied that United was organized by Local 98 of the Sheet Metal Workers' International Association and were paying the prevailing wage rates.' Of the five contractors involved one way or another in this case - B. & J, Glenway Sheet Metal, Inc., Sheet Metal Engineering Company, Feldkemp, and Williams - the first four are dues paying members of the Cincinnati Sheet Metal Contractors Association. Williams is not a dues paying member of the Association, but he adopts and abides by the Association's negotiations as to others. In the negotiations for the current agreement - G.C. Exh 2 - Williams signed a supplemental agreement adopting in advance the Association' s negotiations - Resp Exh. 2 Local 141 area contractors are all interwoven in the programs provided for in the Standard Agreement All contribute and participate in the pension, vacation, apprentice, and welfare funds and programs, and also have joint representatives in trust and other committees . There is no evidence that any contractor has contested the question of his inclusion in the multi-employer unit- 'For further background purposes the parties stipulated that charges were also filed by the Cincinnati Contractors Association against Local 141 in Cases 9-CC-371, 9-CE-14, and 9-CC-380. This record shows that in 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As further background leading to the issues and events in dispute - the General Counsel introduced testimony through James E. Feldkemp, president of Feldkemp, to the effect that in the late summer of 1965, employees of Feldkemp were told they were no longer permitted to install certain purchased adjustable elbows and round pipe. Feldkemp stated this incident occurred at a construction site in Newton, Ohio, and was the first indication that this practice could not continue. Feldkemp also related that shortly thereafter, he was on this job himself installing the round of pipe and adjustable elbows - when an agent of Local 141, Butler - told him that he was in violation of his contract because Local 141 had instructed their members not to install these items. About this time Feldkemp also had a discussion with Business Agent Bickers about this problem, and inquired of Respondent Bickers where he could get adjustable elbows and round pipe that would meet the requirements of Local 141. Bickers then informed Feldkemp there were several available sources, but United in Columbus was the only specific supplier named by Bickers. A few weeks later, in 1965, Feldkemp had three of his employees working on a Banning School project when these employees suddenly left the job. Feldkemp was then informed they were not allowed to install the pipe involved, and the employees had been threatened with fines by Local 141 if they did so. Within an hour of the above incident, Respondent Bickers called Feldkemp and asked if he was laying these employees off. Feldkemp said no he was not, and it was Bickers who was laying them off. Bickers then reaffirmed these employees were not going to install the pipe.' Robert Jackson, vice president and manager of Williams, testified that in the latter part of April, his men were working on the commercial construction of a nursing home and he had sent out round pipe and adjustable elbows for this job when an agent of Local 141 (Annis) called, and informed him Williams would not be permitted to use'the above materials because they were not made by Local 141. Jackson then contacted Bickers and inquired as to an acceptable source where he could buy these items. Bickers replied that they could be purchased from United in Columbus or Williams could make them. When Jackson asked if this material could be purchased from the Charging Party - Bickers told him they could not because the items were not "made with 141 labor." Jackson then placed an order with United, and part of the original items or material on the job were returned to the supplier - in this case Williamson Company of Cincinnati. February 1966, a settlement agreement was signed by Local 141 in Case 9-CC-37 and which called for the posting of notice - see G.C. Exh. 3 - and in July 1966, Local 141 was notified that Case 9-CC-371 was closed upon compliance with the Posting of Notice. The settlement agreement contained a provision to the effect that Local 141 did not admit and denied that it engaged in any conduct violative of the Act. Bickers testified that when the above settlement agreement was signed , Case 9-CE-14 was still being contested, but that later Case 9-CE-14, and Case 9-CC-380 were withdrawn or dropped . A few weeks after the notice in the above settlement agreement was posted in 1966, James Feldkemp was engaged in a conversation with Bickers about employing Bickers' son at his company Feldkemp told Bickers that his boy would have to follow orders, and if he told him to put up round pipe and adjustable elbows he would have to do so Feldkemp testified that Bickers then told him that the Settlement Agreement did not mean anything. 'I have given no independent or controlling weight to these events and incidents which occurred 6 months prior to the operative charge. This evidence was only admitted and referred to herein for the purposes of understanding and explaining the ambiguous and equivocal conduct within the 6-months period Robert Jackson testified that in the 15 years he has been in business - Williams has never fabricated a rigid or adjustable elbow. Jackson stated that they attempted to make an adjustable elbow but have never succeeded in doing so, and that Williams had purchased this item from the Charging Party, but since Local 141 had informed his union employees they could not install elbows from Ajax - the trade name of the Charging Party - Williams is now presently buying adjustable elbows from United in Columbus, Ohio. Jackson was asked why it was necessary to use adjustable elbows, and he replied: "Well, adjustable elbows, if you're running and round duct at all, they're an evil necessity because you have to go around corners, and sometimes you have to offset around conduits or pipe that have been installed by other trades. You just can't run it directly straight with one straight conductor." Jackson also stated that it would not be practical to preplan a job with rigid elbows because of the cost and time in taking field measurements and then subsequent changes in the plans. Jackson then went on to relate that the practice of sheet metal employers in the Cincinnati area is to purchase adjustable elbows, and to his knowledge no employer or contractor fabricates this item. Jackson stated that 6 inch adjustable elbows cost about 57 cents, and 8 inch ones would be somewhere from 70 to 80 cents. Jackson testified that his company had always purchased round pipe - 24 gauge or less - and in the past Williams would make this product only occasionally when they needed an odd size or needed a small piece to finish a job. He stated that his shop is not equipped to make round pipe for the price it can be purchased for, but since the problem or difficulties with Local 141 - Williams has been making this item and that they do not buy pipe from United because this supplier does not fabricate the particular kind of round pipe they have been using. Jackson explained the exception to making their own round pipe applies to rain carrying drain spouts, and this item is purchased from the Charging Party with no objections from Local 141. Nicks Mitchell, purchasing agent for B. & J., testified that in January or February he had three adjustable elbows in the shop - one from Hesco, one from Stampco, one from Corken Steel, and showed them to George Petzinger, the shop steward at B. & J., and asked Petzinger, which elbow would be all right to use. Petzinger stated that he would talk to Bickers and let him know. Petzinger then informed Mitchell that none of the three could be used and that if he "wanted a legal one go to United Sheet Metal. That would be the only ones to use." 5 Mitchell was also told that the three elbows he had inquired about were not acceptable because they "weren't made by Local 141 prices." It appears that the reason Mitchell inquired as to the elbows was due to the fact there had been a good deal of controversy during the past few years over this item, and also because of the refusal on the part of a few of the employees working for B. & J. to install this particular material. In the spring of 1967, B. & J. was working on the Western Woods Job, and Mitchell received a call from their employee Joe Thompson. Thompson then advised 'It is well established that a union steward - under these circumstances - maintains a position of authority as the on-the-job representative or agent of the Union, and , therefore, the Respondent Union is responsible for the conduct and misconduct of the steward whose power it has created, and whom it has clothed with at least apparent authority to represent it at the job level LOCAL 141, SHEET METAL WORKERS Mitchell he had been instructed by Respondent Wonderly not to install elbows that B. & J. had purchased from Corken Steel as they did not have theright label on them.' As a result of this incident B. & J. had to make up some pipe and rush it out to the job, and the other pipe was sent back to B. & J This record also shows that in May or. June, B. & J. received some pipe and elbows from Corken Steel which had union labels on them, but Shop Steward Petzinger informed Mitchell that they could not be used "because they didn't have the right label on them," and that the right one would be a United Sheet Metal label. The General Counsel introduced testimony through Mitchell to the effect that during the past 18 years B. & J. has fabricated items in the general sheet metal line including fixed elbows, but they do not make adjustable elbows - 24 gauge or less, never have, do not make them now, and are presently buying such adjustable elbows from United. Before their difficulty with Local 141 - B. & J. purchased this item from Corken, Hesco, and Stampco. Mitchell explained that B. & J. attempted to make adjustable elbows, but their efforts were not successful as it required too many man hours of work. Mitchell testified that the other sheet metal contractors in the Cincinnati area or in the Contractors Association also purchased adjustable elbows - and because of the cost never, fabricated this item. Mitchell explained a 6 inch adjustable elbow would cost about 55 cents to purchase, and if a contractor were to fabricate the adjustable elbows itself, it would take about 2 hours to do so, and costs run about $8 per man hour meaning a price of $16 to make the elbow. B. & J. has fabricated rigid elbows for heavier gauges - 20, 18, and 16 gauges. This record further reveals that B. & J. generally purchased round pipe, and usually when they fabricate the same it is for a particular job and under emergency or rush circumstances, but it has never made round pipe for sale to the trade. At the present time B & J manufactures round pipe for its own use. As regards the additional or remaining items in article VIII, section 3, of the Standard Agreement, as set forth previously herein, B. & J. has fabricated a few louvers and automatic dampers and some radiator and air conditioning unit enclosures and a "little bit" of kitchen equipment,' but none of the other items Mitchell admitted that Local 141 has made no complaints when B. & J. purchases attenuators, radiators, diffusers, grilles, mixing boxes, and ventilators. The General Counsel introduced testimony through Jack McDonald, president of Glenway Sheet Metal, Inc., to the effect his company purchased adjustable elbows and has never made this item nor has it been the practice of other companies or contractors in the area to fabricate them. In 1965, when the initial difficulties were first encountered, as aforestated, Glenway attempted to make adjustable elbows, but could not do so with their equipment nor were they able to acquire the necessary machinery or gores, and since then has had to purchase this item from United. McDonald testified that on certain jobs adjustable elbows are more satisfactory and practical in permitting installations around other work, that they are also less costly, and stated that now Glenway has to use more rigid elbows, and that his company "stays away" from small jobs wherein adjustable elbows are called for. McDonald further testified that regarding round pipe his practice since 1939 was to purchase this 'Corken is a distributor for the Ajax products of the Charging Party 847 material if it was 24 gauge or less, and only occasionally they would make it if short pieces were needed. Presently his company attempts to avoid bidding on jobs calling for round pipe because now they have to fabricate this item in order to use it. McDonald stated that prior to 1965, the sheet metal employers in the area purchased round pipe as usual practice. On cross-examination McDonald stated that the only thing Respondent Bickers asked him to do was purchase round pipe and adjustable elbows from suppliers who were paying the prevailing construction rate, and also urged him to fabricate these materials. As to the other and remaining items listed under article VIII - section 3 Glenway did not make any of these products with the exception of louvers, and normally all were and are purchased items James Feldkemp testified that in his many years of experience in the sheet metal trade -- Feldkemp was incorporated in 1963 and prior thereto he worked for'18 years as a sheet metal mechanic adjustable elbows were always purchased. He stated his shop has never fabricated this item, that he has never seen one made in a union shop, that in his training as an apprentice they were only instructed in the fundamentals of making such an elbow, and that now he gets his adjustable elbows from United. Feldkemp stated that adjustable elbows are used when you "dodge around, over and under obstacles, such as conduits, sprinkler heads, and bar joists," and there are situations where contractors can only use adjustable elbows. He testified that there is a greater "leakage" in a shop made rigid elbow unless it is welded, and that a welded elbow should never be used in place of an adjustable elbow because the latter is only used on "run-outs" and up to 24 gauge, and welded elbows normally start at 18 gauge.7 Feldkemp testified that round pipe, 24 gauge or less, was always a purchased item prior to the difficulties with Local 141, but beginning a year ago his company started "struggling" in the making of this product as they were no longer permitted to purchase it, as aforestated. He stated that Feldkemp is now limited in their bidding on jobs calling for this item because their cost is greater than when they were permitted to purchase round pipe. Feldkemp has familiarized himself with the general sheet metal practice in the Cincinnati area, and testified that to his knowledge all of the sheet metal contractors in the Employers' Association purchased round pipe and adjustable elbows prior to 1965 Another aspect of Feldkemp's testimony dealt with the remaining items contained in article VIII, section 3 of the standard form of union agreement. He testified his company does fabricate some kitchen equipment, but purchases all the other items including the purchasing of kitchen equipment he does not make. Feldkemp further testified to an incident in the spring of 1967. One of his employees, Tom Maxwell, had called in from a school jobsite and inquired as to the status of round pipe. It appears Maxwell had attempted to install some flue pipe on this project when a business agent from Local 141 showed up and voiced his strong objection in so doing. Maxwell also mentioned in his call a letter which Respondent Bickers had previously signed, and wherein Bickers stated it was permissible to make such installations.' 'According to Feldkemp adjustable elbows are four and five pieces, whereas the rigid elbow is three pieces , and in the latter there is a greater leakage because the adjustable multipiece elbow will turn the air in a more gradual manner as contrasted to sharper or single turns with a rigid elbow. 'Apparently the letter Maxwell was referring to was the settlement 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conrad Wagner, president of Sheet Metal Engineering Company, is a sheet metal fabricator and contractor and has been in existence for 22 years. His company has approximately 50 to 55 employees and ranks 4 or 5 in Cincinnati. His company has always purchased adjustable elbows and has never made an adjustable elbow, and Wagner testified he has never seen one made in a sheet metal contractor's shop. Wagner stated that round pipe, 24 gauge or thinner and except for an occasional odd length or size, has also been a purchased item until their difficulties with Local 141, and the past custom of other sheet metal contractors in the Cincinnati area has been to purchase round pipe and adjustable elbows. The record shows that up until 8 or 10 years ago Sheet Metal Engineering Company purchased the above items from Cincinnati Stamping Company, and then started buying these products from other sources and from the Charging Party due to Respondent Union objections in using nonunion materials from Cincinnati Stamping Company. At the time Sheet Metal Engineering was informed that they could buy from "other people" because the items would bear the union label. Wagner stated his company is still purchasing round pipe and fittings from Ajax or the Charging Party, but his employees have threatened not to install these items, and that he has made one or two purchases of adjustable elbows from United, but their product is inferior and service is bad because it takes about 2 weeks to get delivery. Wagner further related that in early May 1968, his company was working on a hospital care project in Cincinnati, and he had purchased from the Charging Party some round pipe and adjustable elbows for this job. Wagner then received word from his superintendent to the effect that Respondent John Wonderly had been at the jobsite and had advised that he could not force Sheet Metal Engineering from installing the pipe and elbows, but that they "would regret it if they did." Wagner's superintendent also informed him the employees, members of Local 141, refused to make the installations, and Wagner should get these materials off the job. The pipe and elbows purchased from the Charging Party were then sent back to the Company's warehouse, and other materials were used. Wagner testified that in using an adjustable elbow you have a 360 degree turning point, and in contrast to a rigid elbow you can "go up and down and around" which is advantageous because the space allotted for duct work is very compact. Regarding the remaining items listed under article VIII, section 3, Wagner stated that most of these products are purchased, but his company does make pipe - 22 gauge is the lightest, and they also make some ventilators, louvers, and a few dampers. Wagner also related that in fabricating round pipe - which his company is now doing - it is more difficult to "put together" and it is "very expensive." Gorden Corken, vice president of Corken Steel Products, sells Ajax products in the area for the Charging Party, and during the period 1960 through 1964 his company would sell on the average of $10,000 per year of adjustable elbows and 24 gauge round pipe to the sheet metal contractors organized by the Respondent Union. Corken testified that commencing in 1965 the selling of Ajax's pipe and adjustable elbows to sheet metal contractors organized by Local 141 has become "practically nil" due to the fact that the Respondent agreement with Local 141 arising out of similar circumstances in 1965 and 1966, as aforestated Union would not allow the contractors to use these products. Corken related that while also acting as a salesman for Corken Steel Products, he visited all of the sheet metal contractor's plants in the area and up until 1965 the contractors purchased adjustable elbows and round pipe from him, but now they no longer buy the Ajax line from the Charging Party. On May 4, Nicholas Bauer, attorney for the Charging Party, met with Respondent Bickers and Respondent Wonderly because they were refusing to permit members of Local 141 to handle pipe and elbows manufactured by the Charging Party. Bauer inquired why this was so since the products had the Union International label or sticker on them. Bauer testified Bickers then informed him that anyone in their organization working with the Charging Party would be "suspended" and "fined," and contractors "would be dealt with accordingly " On or about May 8, Bauer held a second conference with Respondents and other interested parties. Bauer stated that at this meeting the question arose as to what could be done by the Charging Party to make its products acceptable to Local 141, and Bickers replied that the problem could be easily solved by putting two men on Local 141 on the manufacturing line of the Charging Party, and then he would permit the handling of the items. John Kopp, president of the Charging Party, informed Bickers that this could not be done as he had a collective-bargaining contract with Local 183 - a sister local of 141 in the Sheet Metal Workers' International Association, as aforestated. The testimony by Bauer in this respect is corroborated by Wilford Rice, business agent of Local 183, who was also present at the second meeting.' The Respondents introduced testimony through Respondent Bickers bearing mainly on past and present practices in the fabrication of pipe and elbows. Bickers has been connected in one way or another with the sheet metal trade for about 35 years. Bickers stated that when he started in the trade the various shop made pipe and elbows, but beginning in about 1960 there was a gradual reduction from fabricating to the practice of buying such items. According to Bickers, journeymen sheet metal workers can and do fabricate adjustable elbows, stated that contractors have the necessary 'equipment in their shops to do this work, and Bickers has seen journeymen make adjustable elbows Bickers also testified that in preparation for trial, he witnessed the actual fabrication of an adjustable elbow by a member of Local 141 in the shop at Queen City Sheet Metal Company, and upon completion he and Respondent Wonderly were able to turn it He admitted that it takes approximately 45 minutes to make such an elbow, and without counting materials it would cost around $4 for one man's labor to make an adjustable elbow, and also admitted that contractors can purchase the same size elbow for about 60 cents - so that it cost in the neighborhood of ten times as much to fabricate it as contrasted to buying the item. At the present time Bickers does not know of any supplier other than United where contractors can purchase adjustable elbows Bickers stated that in all his discussions with contractors relative to round pipe and adjustable elbows - he never made any references to the requirement 'To complete the sequence of events - this record shows that on June 1, 1967, Local 141 went out on strike for about 4 weeks prior to the signing of the new contracts effective in July It also appears there were interim agreements signed by 32 contractors and therefore , Local 141 did not strike these contractors. LOCAL 141, SHEET METAL WORKERS 849 specifying a particular kind of union label,10 but told employers "the prevailing rate of wages must be paid for when subcontracting for prefabrication." He testified it has been his consistent position since 1965, that members of Local 141 will not handle adjustable elbows and round pipe when these items are fabricated by employers who do not pay prevailing rates. In other aspects of this case - Bickers related that he has never seen adjustable elbows or round pipe called for in any specifications, that the $10,000 yearly average of Corken's business in selling Ajax products between 1960 and 1964 - is a small dollar volume in contrast to the amount of materials used in sheet metal industry, that in April, he told Robert Jackson of Williams that the prevailing rate of wages must be paid and did not say anything about union labels, that in his conference with Bauer he did not say Local 141 was going to suspend or fine, and that at the second meeting he did not tell the Charging Party they should put a Local 141 man on their manufacturing line Bickers admitted a conversation with Steward George Petzinger relative to three elbows at the B. & J. plant, and informed ,Petzinger that the prevailing rate of wages had to be paid. Respondent Wonderly denied he ordered materials in question off the hospital care project in May 1968, as aforestated in the testimony by Wagner. Wonderly testified he was only at this jobsite on one occasion and that was when he took the photographs in evidence," that there were no elbows on this job, and stated Respondent's Exhibit No. 1 shows a flexible rubber tube or hose already on this jobsite when he arrived, and therefore, he did not object to any of the materials being used on the project.': Wonderly explained that Respondent's Exhibit No. 5 is also a photo he took at the hospital care jobsite on April 30, 1968, and shows a Pexto hand operated machine which was set up with wheels for the "crimping" on small ends of pipe and elbows." Wonderly went on to testify that when he started in the sheet metal trade many years ago, contractors made their own round pipe and adjustable elbows, and stated that sheet metal employers in Cincinnati have never stopped fabricating some quantity of these items and especially in heavier gauges. According to Wonderly, rigid elbows can be made in many sections - 5 up to 13 - and a rigid elbow is moveable before the seam is permanently fixed by rivets or by welding, and testified a sheet metal worker can weld a 24 gauge thickness. Wonderly also testified that at the meeting with Bauer he did not remember Bickers stating that a member of Local 141 should be assigned to the manufacturing line of the Charging Party. Section 8(e) of the Act reads as follows: '"It appears that all labels on products involved herein, are issued by the Sheet Metal Workers' International Association, and by looking at the label it is impossible to tell which Sheet Metal Workers' local made the item. "See Resp Exhs. 1, 3, 4, and 5 "Wagner explained that the flexible tube or hose was material he had to buy - and apparently he did so because of the objections in the use of adjustable elbows purchased from the Charging Party Wagner stated that he now has permission to use the flexible tubing in lieu of adjustable elbows, but does not know the position of Local 141 on this practice "Resp Exh. 3 shows 24 gauge 3 and 4 piece elbows in the sheet metal shop of Langdon Incorporated, and Wonderly testified the elbows were part of a job this employer was working on. Resp Exh. 4 shows a picture of a Local 141 sheet metal worker fabricating an elbow Wonderly stated he took this photo on May 1, 1968, at Queen City Sheet Metal Shop in Cincinnati and the elbow was part of a job order. It shall be an unfair labor practice for any labor organizations 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 premises 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."' 4 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).15 The credited evidence in this record is most conclusive in showing that the employer - members of the Cincinnati Sheet Metal Contractors Association and others - including Feldkemp, B & J., and Williams, normally and regularly purchase from mass production manufacturers practically all of the items listed under article VIII, section 3, except in those limited situations wherein emergency conditions existed, or where special small and irregular sizes of pipe or other listed items are required, and such products were not readily available from the Manufacturer. The General Counsel offered credited and 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, but in my opinion failed to do so. In essence, Bicker's own testimony reveals that as early as 1960, the fabrication of the main items in question reached a standstill, and because of cost and other ' 'Houston Insulation Contractors v. N L R. B., 357 F 2d 182, 187 (C A. 5), reversed in part on other grounds, 386 U S. 664 "National Woodwork Mfg Assn. v. N.L R B., 386 U S. 612 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD considerations the contractors then consistently adopted the practice of buying such items. Bickers stated that he recently witnessed the making of one adjustable elbow. However, this in no way substantially detracts from the total evidence in this record which conclusively shows that the item was normally purchased, and his observation in seeing an elbow fabricated, in preparation for trial, will not and cannot refute the overwhelming evidence produced by the General Counsel. Furthermore, Bickers then admitted he knows of no one who fabricates this item in the Cincinnati area, and United in Columbus is the only supplier where it can be purchased without his protest. In attempts to minimize the need or use for adjustable elbows Bickers ventured he has never seen this item written into specifications, and throughout the record and in arguments, there is constant references by the Respondent Union in efforts to sustain their contention that rigid elbows are just as adequate and practical. However, Feldkemp, Wagner, and others gave sufficient and detailed accounts on the real needs and uses for this product, as aforestated, and without its immediate availability the resulting consequences has been a curtailment in their bidding on certain types of projects. In several situations the General Counsel was successful in establishing that rigid and adjustable elbows are not interchangeable for competitive purposes, as aforestated. The testimony given by Wonderly directly implies that contractors never stopped fabricating round pipe and adjustable elbows, but a closer look shows to the contrary and the real impact of his testimony was actually directed to the fabrication of items in the heavier gauges, and admittedly this practice continues as mass production machinery or equipment is not designed to turn out the heavy gauge material and must be specially made. Some emphasis is placed on the photographs Wonderly took in attempts to verify the contention and testimony that constructors in the Cincinnati area were fabricating elbows, but in view of the abundance of reliable testimony that such was not the normal practice, the only significant valuations I can attach to the pictures is that Langdon Incorporated happened to have an adjustable elbow in its shop - there is no testimony as to where it came from, that Queen City Sheet Metal must have fabricated this item for a special job, and the photographs marked as Resp Exh. 1 and 5 merely reveal that Wagner or Sheet Metal Engineering Company had to use flexible hose as a substitute for adjustable elbows due to the continual objections and obstructions from Local 141. In essence, what is directly relevant in this case, and others like it, 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 or normal course of their business. I submit this record clearly shows that nearly all the items were normally purchased, and employees only fabricated these items, with the possible exception of louvers and ducts, 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 performed by the employees, and the object of the restrictions so imposed was not the preservation of unit work. In National Woodwork Mfg. Assn., supra, the carpenters had a contract with the Frouge Corporation which provided that 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 courts, 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 of 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 the refusal on the part of Local 141 to handle the products in question of the Charging Party and other was not addressed to labor relations of the contracting employer vis-a-vis his own employees. Nothing herein required Feldkemp, B. & J., Williams or others to do anything different with their employees. As pointed out, the Respondent Union simply forced a charge in the source of supply. Furthermore, under the guidelines of National Woodwork the objectives of the Respondents must also be preservation of work for the employees of Feldkemp, B. & J., and Williams - employees of the employer on whom pressure is being applied. Moreover, in addition to what I ' have already found in this respect, Respondent Bickers admitted that LOCAL 141, SHEET METAL WORKERS article VIII, section 3 is in his contracts negotiated by Local 141, because "it is set up" under the standard form of union agreement between the Sheet Metal Workers' International Association and the Sheet Metal Contractors International Association. Bickers then went on to state that when article VIII, section 3, refers to production wage rates it is "talking about" production rates established by the Sheet Metal Workers' International Association, and if a contractor purchased pipe from a manufacturer who did not pay the prevailing rate whatever the production wage rate is in the area where fabricated - he would file a grievance under article X of the standard form of union agreement. Thus, it appears the standard applied by Local 141 is the production rate where manufactured, and obviously if this rate is met contractors may then buy from any supplier in the United States no matter where their fabricating site might be located. As previously noted herein, there is some testimony that employers involved have started making round pipe as a result of their difficulties with Local 141. However, this too is violative of National Woodwork, as Local 141 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 Feldkemp, B. & J., and Williams 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 International, to avoid liability from Section 8(b)(4)(B).16 The discussion above and the total evidence in this record 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 own employees" which the Supreme Court has said is "the touchstone" in determining the validity. The language in article II, section 2, and article VIII, section 3, must be regarded as strong 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 reasoning to the other items listed in article VIII, section 3. The employees of the contractors have seldom fabricated such articles. Instead, they have always purchased them from manufacturers with few exceptions. Bickers stated that none of the other items listed in article VIII, section 3, other than round pipe and adjustable elbows - items I and 6 - present any problems, and by his interpretation of the contracts he would not restrict any contractor in purchasing such items from whomever he pleased even if the manufacturer was "It is conceded by the Respondent Union that United is not includable in the area work unit 851 paying a minimum wage in their fabrication. However, regardless of whatever interpretation Bickers gives to these remaining items - they most assuredly must be considered as items wholly inclusive and all overlapping or interlocking within the scope of article VIII, section 3, and are inseparable for purposes here as they are fully implemented and embodied within the clauses under consideration. The admission by Bickers that his enforcement procedures on items 1 and 6 resulted from a decision of the National Joint Advisory Board in 1965, as aforestated, bespeaks again of the specific containment within the standard form of the union agreement, and indicates control from the Union' s International Association with a definite objective to benefit union members generally. And this is true even though Local 141 itself negotiates the rates contractors within its jurisdiction will pay, since the general framework and requirements for such rates are specified in the standard form of union agreement. In further amplifications to the remaining items listed in article VIII - Bickers finally agreed that he has not decided what the rest of this provision means. From the above it is readily apparent that if article VIII or any portion of it is allowed to stand, Local 141 could at any time enlarge its present interpretations and overnight place the same demands on all items. The Respondent Union also produced some testimony bearing on the small percentage of elbows and round pipe in the overall costs and construction of sheet metal work in the erection of various commercial buildings." However, I am not aware of any Board or court decision wherein any standards of minimum or deminimus percentage figures are relied upon in determination of whether or not a union can continue to claim its work preservation rights under such circumstances. In the final analysis, I have found that the fabrication of the eleven items as an overall practice, to be neither unit work nor fairly claimable as unit work. Article II, 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 II, section 2, and article VIII, section 3, to envisage no direct benefits to unit employees, but are designed to disrupt established business relationships between employers and their suppliers, and thus to have a secondary thrust which makes it unlawful within the meaning of Section 8(e) of the Act.'8 In a brief recapitulation, the evidence reveals that in January or February, again in the spring of 1967, and again in May or June, B. & J. were told by Local 141 that certain materials were not acceptable because of noncompliance with the rates under article VIII, section 3, "Residential work is not in issue here, since contractors engaged in such work can buy from any manufacturer. "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 Local Union No. 26, supra, 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 evidence in the instant case r that as regards contractors in the Cincinnati area, article II, section 2, has been so used See also Sheet Metal Workers Union Local 216, 172 NLRB No. 6, involving the same contract provisions - article II, section 2, and article VIII, 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. 85 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as aforestated. In April, Williams was informed that they could not use certain items at their construction site due to. noncompliance with article VIII, section 3, and in the spring of 1967, Feldkemp was notified of objections from Local 141 in the installation of Flue pipe, and in May 1968, Sheet Metal Engineering Company could not complete installations because of objections from the Respondent Union. While the May 1968, incident was not specifically alleged in the complaint and took place subsequent to the filing of the complaint - the same was fully litigated at the hearing. The two conferences between officials for the Charging Party and officials of the Respondent Union in May, as previously mentioned herein, must also be regarded as general corroboration in the establishment of the explicit incidents relied upon. The above conduct and statements attributed to agents of Local 141 constituted, in several instances, an inducement to employees of B. & J. and Feldkemp, and others in violation of Section 8(b)(4)(i) (B) of the Act, and especially so in the statement by Wonderly that if Sheet Metal Engineering Company made certain installations they "would regret it."i' This record conclusively shows that such conduct on the part of the Respondents was specifically intended and calculated to induce work stoppages by employed individuals. The remaining statements by agents of the Respondent Union, as set forth and detailed earlier herein, must be deemed as threats or coercion to persons engaged in commerce and forcing or requiring ahem to cease handling, transporting, or otherwise dealing in the products of other producers, and violative of Section 8(b)(4)(ii)(B) of the Act. The Board has repeatedly held that the threat of economic retaliation is the type of restraint or coercion of employers which Congress intended to reach by enactment of this Section of the Act This conduct on the part of the Respondents cannot be classified as nonthreatening statements since the resulting circumstances from such remarks show that Williams had to return certain materials - B. & J. and Sheet Metal Engineering Company had employees who refused to make installations and have had to substitute items on jobsites and Glenway Sheet Metal and Feldkemp have had to restrict their bidding on different type jobs where certain materials are necessary. In essence, by this conduct throughout the critical period involved herein, Respondents have consistently and repeatedly insisted upon the provisions of article VIII, section 3, which is unlawful under Section 8(e) of the Act, and they thereby violated Section 8(b)(4)(i), (ii)(A) and (B) of the Act 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 the 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 material herein Respondent Bickers and Respondent Wonderly have been agents of Respondent Union acting in its behalf within the meaning of Section 2(13) of the Act. 2. The Charging Party, Feldkemp, B. & J., and Williams are employers within the meaning of Section 2(2) of the Act and are engaged in commerce within the meaning of Sections 2(6),(7)and 8(b)(4) of the Act. 3. By engaging in conduct with an object of forcing or requiring Feldkemp,, B. & J. and Williams to agree to or to enter into an agreement containing article II, section 2, and article VIII, section 3 - prohibited by Section 8(e) of the Act, Respondents have engaged in unfair labor practices within the meaning of Section 8(b)(4)(i), (ii)(A) and (B) of the Act. 4. 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.] "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 Electrical 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