Carpenters, Local 948

CARPENTERS, LOCAL 948 United Brotherhood of Carpenters and Joiners of America, Local No. 948, AFL-CIO and Chris Hansen Construction Co., Inc . Case 18-CC-309 February 9, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On September 29, 1970, Trial Examiner Herzel H. E. Plaine issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in the unfair labor practices alleged in the complaint, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Re- spondent filed exceptions to the Trial Examiner's De- cision and a supporting brief, and the Charging Party filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board had delegated its pow- ers 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 preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner, as consistent herewith. 483 halls copies of the attached notice marked "Appen- dix."' Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by the Union's authorized representative, shall be posted by the Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Union to insure that said notices are not altered, defaced, or covered by any other material. (b) Return to the Regional Director for Region 18, by mail or otherwise, a sufficient number (as de- termined by him) of the signed copies of the notice for posting by Hansen, Frank's, and others of Hansen's subcontractors, if they are willing, at all locations where notices to employees and contractors and sub- contractors are customarily posted. (c) Notify the Regional Director for Region 18, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 1 In adopting the Trial Examiner's finding that Respondent engaged in unlawful secondary activity by picketing Chris Hansen Construction Co., Inc, we do not find it necessary to pass upon the question of whether the "status quo" agreement, entered into between the International Carpenters and Lathers Unions, was incorporated by reference into the operative collec- tive-bargaining agreement between Respondent and Chris Hansen Construc- tion Co, Inc. In our view, even if Respondent was not legally bound by the "status quo" agreement, its picketing was improperly directed at regulating the labor relations of Frank's Plastering, Hansen's subcontractor, and conse- quently violated Section 8(b)(4)(ixii)(B) of the Act Cement Masons Local No 812, AFL-CIO 182 NLRB No 131, Roofers Union Local No 36, AFL-CIO 150 NLRB 1412, and Northeastern Indiana Building Construction Trades Council, 148 NLRB 854 2 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent, United Brotherhood of Carpenters and Joiners of America, Local No. 948, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from engaging in, or inducing or encouraging employees of Chris Hansen Construc- tion Co., Inc., or its subcontractors to engage in, a strike or picketing or refusal to perform services in the course of employment, or otherwise threatening or coercing Hansen or its subcontractors, where an ob- ject thereof is to force Hansen to cease doing business with subcontractor Frank's Plastering Company or to force Hansen's subcontractors to cease doing business with Frank's. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at the Union's business offices and meeting TRIAL EXAMINER'S DECISION HERZEL H.E. PLAINE, Trial Examiner: This is a proceeding charging Respondent, United Brotherhood of Carpenters and Joiners of America, Local No. 948, AFL-CIO (the Union), with having picketed the several construction jobs in Sioux City of the Charging Party (Hansen), a general construction contractor, and with having induced a strike that caused work stoppage of those jobs by Hansen's em- ployees and the employees of Hansen s subcontractors, with an object of forcing Hansen and the subcontractors to cease doing business with one of the subcontractors, Frank's Plas- tering Company (Frank's), in violation of Section 8(b)(4)(i)(ii)(B) of the National Labor Relations Act (the Act). The complaint was issued June 23, 1970, on a charge filed by Hansen April 20, 1970, and an amended charge filed June 23, 1970. The Union's answer was a general denial of any wrong- doing. Its defense at trial was that it picketed and struck the Hansen jobs because Hansen allegedly breached its collec- tive-bargaining agreement with the Union by subcontract- ing alleged carpenters' work-installation of metal studs to 188 NLRB No. 77 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD receive drywall-to Frank's who performed the work with lathers (under a collective-bargaining agreement with Lath- ers Union Local 113). In response to Hansen's showing of a long-standing "status quo agreement between the Car- penters and Lathers Unions, by which both unions have agreed not to press or process jurisdictional disputes be- tween them concerning installation of metal studs, pending resolution of the issue by union committees, and to respect the contractor's assignment of such work on each job, the Union (Carpenters) contended it had not sought by the picketing and strike to undo the subcontract with Frank's or the assignment made by Frank's to lathers, but was seek- ing to collect from Hansen money damages, for carpenters, equivalent to the wages paid the lathers by Frank s. Thus the issue is whether general contractor Hansen is the employer with whom the Union has a primary labor dis- pute, for preservation of work of its members on a construc- tion job, that justified the picketing and strike (as the Union contends); or (as the General Counsel and Hansen contend) whether Hansen and its subcontractors, other than Frank's, are secondary or neutral employers in a primary labor dis- pute between the Union and subcontractor Frank' s, arising because Frank's uses lathers rather than carpenters to do the disputed installation work, making the Union's strike action illegal pressure on the neutrals to induce the primary employer, Frank's, to change its operations as the Union wishes or give up its subcontract. The case was tried on August 5, 1970, at Sioux City, Iowa. Counsel for the General Counsel, for the Union, and for the Charging Party have filed briefs. Upon the entire record of the case, including my observa- tion of the witnesses, and after due consideration of the briefs, I make the following: FINDINGS OF FACT I JURISDICTION The Respondent Union is, as the parties concede, a labor organization within the meaning of Section 2(5) of the Act. Hansen, the Charging Party, is a corporation engaged in the building construction business as a general contractor, with its principal place of business at Sioux City, Iowa. For the performance of its construction contracts, Hansen uses both direct employees of its own and subcontractors in the various building trade specialties. In the operation of its business, Hansen annually pur- chases and receives goods and materials valued in excess of $50,000 from points outside Iowa. Likewise subcontractors Bean Plumbing, Earl's Window Service, Nystrom Electric, and Hagen Plumbing and Heating each purchase and re- ceive annually, from points outside Iowa, goods and mate- rials valued in excess of $50,000. Hansen, and the said subcontractors, are each employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act, as the parties admit. II THE UNFAIR LABOR PRACTICES A. The Contract Relationships In April 1970, Hansen was engaged in several construc- tion projects in Sioux City. Among these was the remodeling of the Orpheum Building for Iowa Public Service . Subcon- tracts were let for much of the work , according to Hansen's president, Robert M. McCline, such as the plumbing, elec- tric, ceilings, floor coverings, and metal stud and drywall installations. Among the subcontractors on the Orpheum Building were Nystrom Electric, Beam Plumbing, Earl's Window Service, and Frank's Plastering Company (Frank's). Frank's had a subcontract, dated December 2, 1969 (G.C. Eyh. (G.C. Exh. 3), to supply the material and labor to complete installation of the metal studs and drywall (the contract spoke in terms of "installation of all necessary sheetrock and metal studs"). McCline testified that the work contemplated the use of a "rapid smooth plaster finish," involving a thin putty coat applied over a drywall, and was not the kind of work done byhis carpenters, but was typical- ly subcontracted work. Frank's was a subcontractor he had used before, said McCline, and, he said, had been awarded this subcontract, on the basis of competitive bids, as the lowest responsible bidder who employed union employees, paid union wages, and abided by union conditions. Some of Hansen's other drywall subcontractors, said McCline, had collective-bargaining contracts with the Carpenters' Union, but Frank's was the only one that had a contract with the Lathers Union. According to Robert Frank, of Frank's, his company is principally a wall and ceiling contractor, and he put two men, both lathers, on the Orpheum Building job to perform the subcontract with Hansen, installing metal studs and drywall. They began in late March or early April, according to Hansen's President McCline. The two lathers were union men, both members of Local 113, Wood and Wire Lathers, of Sioux City, with whom, as indicated, Frank's had a col- lective bargaining agreement as a member of a local lathing and plastering contractors' association (G.C. Exh. 7).1 As a member of the Master Builders Association of Sioux City, Hansen had a collective-bar aiing agreement with the Carpenters Union, (G.C. Exh. 2) (agreement), and pur- suant thereto Hansen had used the Union as the source for referral of job applicants for its employment needs. Under the agreement, article I, section 1, Hansen recognizes the Union as bargaining agent for all employees who engage in the work of carpenters (and certain other classes not mate- rial here); and, article I, section 2 defines carpenter work as including all work "commonly recognized as carpenter work plus" specific additions, one of which, in section 2(k), is the `constructing and installing of all light iron and metal studs ... which are to receive material to be applied by carpenters such as gypsum board (drywall, or used as black- board), wood ... plastics or composition board, or any similar material.2 Installation of metal studs and runners to receive lath and plaster shall be awarded as per Article VI of this Agreement. Article VI of the agreement provides, in section 1, that jurisdictional disputes which cannot be settled locally be- tween representatives of the unions claiming jurisdiction and representatives of the Master Builders Association of Sioux City, shall, on 48 hours notice by any party, be settled in accordance with the procedural rules and regulations of the National Joint Board for Settlement of Jurisdictional Disputes in the Building and Construction Industry; and that during the pendency of such a matter, all work shall continue and lockouts, strikes, slowdowns, or wallkoffs shall be in violation of the agreement. Section 2 of article 1 Frank's also was party to collective-bargaining agreements with two oth- er unions, the Plasterers Union, and the Ceramic Tile Workers Union, but had no agreement with the Carpenters Union, the Respondent in this can 2 This provision, relating to installing metal studs for drywall, is the subject of a special jurisdictional (status quo) agreement between the Carpenters and Lathers International Unions, discussed infra 3 This provision, relating to installing metal studs for lath and plaster, is the subject of a general jurisdictional arrangement among the Building Trades Unions, discussed infra CARPENTERS, LOCAL 948 VI provides that any dispute as to interpretation of the agreement, other than a jurisdictional dispute, shall be set- tled if possible between a representative each of the Union and Hansen within 24 hours (or longer if agreed) after the filing of a complaint. If no agreement is reached the dispute shall be referred to an arbitration board of four (chosen from eight designees, four designated by each side, and two names striken by each side from the designation of the other), and heard and decided by the board within 72 hours. A majority decision of the arbitration board is to be binding on the arties, but if no decision is reached or if the contrac- tor refuses to abide by the board's decision, the Union reverses its right to strike to enforce the provisions of the agreement. The agreement also provides in article VII, entitled "Sub- Contracting," that Hansen will refrain from using, through subcontracting or other device, "the services of any person who does not observe the wages, hours, and conditions of employment established by labor unions having junsdiction over the type of services performed." Both Hansen and the Union were agreed, in their testimony, that article VII rec- ognizes, though not stated affirmatively, the right of Hansen to subcontract for purposes that do not violate the stated prohibition. Union Business Representative Anthony Boe contended, in addition, that though not affirmatively stated in article VII or elsewhere in the agreement, Hansen may not, through subcontract, give whatever is described as car- penters' work in the scope of work clause, article I, section 2 above, to any but carpenters . Hansen disagreed. In this connection, and particularly relevant to article I, section 2(k)-the installation of metal studs for drywall- there is a further contract arrangement between the Carpen- ters International Union and the Lathers IntemationalUn- ion, referred to by the parties as the status quo agreement, to which the contractors' associations have also been pri- vy.4 Apparently the two unions have been engaged in a long-standingjurisdictional dispute as to whether the instal- lation of metal studs for drywall is carpenters' or lathers' work. As a result, in 1965, by an exchange of telegrams and letter (G.C. Exhs. 8, 9, 10), a truce, binding on all affiliated local unions, was established, referred to as the status quo agreement, under which both unions agreed that each would appoint a committee to resolve the dispute. Pending resolution of the dispute, the understanding was that "work will proceed in accordance with the contractor's assign- ment," and that neither union would process cases involving such work while the committees are considering and at- tempting to resolve the jurisdictional dispute (G.C. Exh. 10). At the time of the trial, it appeared that the union com- mittees had not yet resolved the jurisdictional dispute and that the May-June 1965 status quo agreement was still in effect. Union Representative Boe acknowledged full aware- ness of the status quo agreement, and of course it was in existence in 1967 when the most recent agreement between the Union and Hansen was renewed. This agreement was for a term of 3 years from May 1, 1967, to April 30, 1970, and, in the respects material here, such as the scope of work provisions, was generally similar to a revious agreement, according to Union Representative floe. The aggreement lapsed without renewal on April 30, 1970, and the strike, which be an on April 17, 1970, over subcontractor Frank's work in the Orpheum Building, became a general economic strike by five or six unions for a new contract, according to President McCline of Hansen. 4 On this latter score, see General Counsel's Exhibit 11, a letter dated April 13, 1970, indicating assurances to the association of wall and ceiling contrac- tors from the Carpenters International Union that the Union would coo- perate in giving effect to the status quo agreement as it affected this case 485 B. The Strike Action, April 17-30, 1970 Union Representative Boe testified that in early April 1970, in a visit to the Orpheum Building job, he observed two men whom he knew were not carpenters (and who were the two lathers assigned by Frank's) installing metal studs. Boe said he did not talk to the men, that he did not know their craft but assumed they might be lathers , and that he did not ascertain the wages they were paid or whether they were working according to the working rules , which rules, he insisted, applied to all on the job. Nevertheless, Boe immediately called President McCline and , in his absence, talked with William Jacobsen , Hansen's expediter. This call was on April 9, testified Expediter Jacobsen, and Union Representative Boe told him there was a problem at the Orpheum Building job, that lathers were installing metal studs and drywall partitions and that Hansen "should get these people off this work because this work belonged to the carpenters." Jacobsen told Boe that Hansen had subcon- tracted the work to Frank's and to call and talk to Mr. Robert Frank, since he was the contractor doing the work. Boe replied he would not talk to Mr. Frank since the con- tract the Union had was with Hansen and not with Frank's. Jacobsen then said he would relay the information to Frank's but could do nothing more . Jacobsen telephoned Robert Frank at once and told him of Boe's message, and said also, according to Frank, that there would be a strike if Frank did not hire carpenters. Jacobsen testified that Frank said he would not pull his people off the job. Jacob- sen also informed President McCline (at home at the time) of Boe's call. Union Representative Boe agreed with Expediter Jacobsen's testimony that he, Boe, described to Jacobsen what he saw at the Orpheum Building, that he called it-two noncarpenters installing metal studs-a violation of the agreement and said he wanted to get together with President McCline to resolve the problem. On direct examination, Boe denied saying that Hansen had to get the lathers off the work. He added that he has never taken that position. Nev- ertheless, on cross-examination, Boe admitted he told ex- pediter Jacobsen there would be no problem if the lathers were not on the job. In the total circumstances, I find Jacobsen's testimony to be credible.' Boe also conceded at the trial that there would have been no problem if carpenters were doing the work subcontract- ed to Frank's and that, while he was seeking damages on behalf of the carpenters from Hansen, Hansen had the alter- native of persuading Frank 's that the work under its sub- contract was work "covered" for the carpenters by the agreement with Hansen and the area contractors and was so assigned in the past 6 or 7 years.6 If, as a result, the lathers were taken off the job, said Boe, he would not have pressed the claim for damages against Hansen. On April 10, the next day following the telephone call to Expediter Jacobsen, Boe dispatched to President McClme a telegram (G.C. Exh. 4) stating that Hansen had violated the subcontracting provision, article VII, and the scope of work provision, article I, section 2(k), of the agreement 5 Boe's capacity for doubletalk, illustrated infra, did not help inspire confi- dence in his denial 6 There was no evidence , other than Union Representative Boe's assertion, that practically all installations of metal studs for drywall were done by carpenters President McClure testified that others besides carpenters have done this type of work and that he had used Frank's on previous jobs before and Frank's did not use carpenters in this work. Robert Frank testified he encountered no trouble before in using lathers for this kind of work. 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD between Hansen and the Union . McChne called Boe and was told by Boe he had violated the agreement by doing work with Frank's because the metal stud installation was within the Union's scope of work. The two men disagreed on this contention and agreed to go to arbitration (under article VI, section 2 of the agreement). The arbitrators, two for each side, were selected and met on April 16, 1970. President McCline and Union Represent- ative Boe presented and argued their contentions (summa- rized in G.C. Exh. 6). McCline contended that the status quo agreement between the Carpenters and Lathers Unions (G.C. Exhs. 8, 9, 10, described under heading A above) recognized the right of the performing contractor or sub- contractor to make assignments of the work involved in Frank's subcontract and whichever craft obtained the work was entitled to perform it. Boe's reply was ambivalent. He said the Union did not deny the right of the contractor to subcontract anything he wanted to subcontract or to assign work to whomever he saw fit, and, because of the status quo agreement, the Union was not asking that the assignment be changed. However, because it was the intent of the scope of the work clause of the agreement between contractors and Union to protect the carpenters' work, Boe claimed that the area contractors could not "give away " carpenters' work through the "subterfuge" of subcontracting and that they generally avoided so doing by advising subcontractors that certain work belonged to crafts with whom the contractors had collective-bargaining agreements. For this "violation of contract"-presumably failure of contractor Hansen to no- tify and require subcontractor Frank 's to perform his job with carpenters-the Union was asking damages from Han- sen equal to the wages lost by the carpenters; i.e. pay for the hours worked by the lathers.? The arbitration board deadlocked 2-2 and referred the matter back to the parties unresolved that same day, April 16. According to Union Representative Boe, the union com- mittee decided to strike Hansen because of the alleged con- tract violation and the first pickets ap eared the next day, Friday, April 17, at the Orpheum Building , where subcon- tractor Frank's was working, and at several other Hansen jobsites in Sioux City. As pickets appeared, employees of the contractor and subcontractors refused to cross the pick- et lines; by Monday, April 20, work had ceased at a half dozen or more jobsites, involving a work stoppage by em- ployees of Hansen and between 18 and 20 of his subcontrac- tors, many of whom had no contract with the Carpenters Union. Boe testified that, while the dis.pute arose at the Orpheum Buildin&, he believed the Union s remedy was the use of economic sanctions against Hansen in its entire work, even though such remedy was not spelled out, he said, in the agreement. The picket signs read that Carpenters Local 948 was on strike against Hansen , "because of violation of agreement. This dispute with the above contractor only." No effort was made to notify employees who did not work directly for Hansen as to the nature of the dispute and the object of the strike other than that was said on the picket signs. testified Boe.8 7 The pay scales for the carpenters (G C Exh 2) and the lathers (G.C Exh 7) appear to be about the same President McChne testified that the Union's demand for damages was about $1,200, which if paid, would add over 20 percent to Hansen's cost for the Frank's subcontract 8 Witnesses Johnson, for subcontractor Nyestrom Electric; Lord, for sub- contractor Hagen Plumbing and Heating ; and Frank, for subcontractor Frank's, whose employees are members of other unions, testified to the effectiveness of the picketing by the Carpenters Union in causing their em- ployees to cease work and closedown their jobs, commencing April 17, at the Sometime after April 20 (and before Ma y 1), the Union withdrew the pickets from the Orpheum Buildin . Union Representative Boe testified that the International Carpen- ters Union, with which his local is affiliated, requested him to remove the pickets from the Orpheum Building because of the status quo agreement between the Carpenters and Lathers Unions respecting installation of metal studs (G.C. Exhs. 8, 9, 10, discussed above). He complied , said Boe, but kept pickets on other jobsites because , he said, the commu- nication from the International Union had not mentioned other sites. The work stoppage remained generally effective. On April 30, 1970, the agreement between Hansen and the Union expired without renewal , and on May 1 the strike became a general economic strike for a new contract. Ac- cording to President McCline, picketing resumed at all job- sites (except one), including the Orpheum Building. The picket signs were changed and no longer reflected the alleg- ed contract violation by Hansen, said McCline. Subcontrac- tor Frank's had been able to get in a few days' work just prior to May 1, but on May 1 was shutdown with all others in the general strike, still needing 3 days more to complete his subcontract. C. The Section 8(b)(4)(i)(ii)(B) Findings The foregoing facts establish that, in April 1970, Union Representative Boe, on behalf of the Union, used the pre- text of a contract violation by the general contractor Han- sen to apply, and applied, the economic strike force of the Union in an attempt to pressure the general contractor and uninvolved subcontractors into aiding the Union in an illeg- itimate grab for the work of the lathers of subcontractor Frank's. The Union's objective in this maneuver was not the le 't- imate preservation of existing work of the carpenters. On the contrary, the status quo agreement of the Carpenters and Lathers International Unions had established 5 years aggo, for all affiliated locals including this local Union, that installation of metal studs for drywall is the work of either carpenters or lathers and (2) until a further agreement on jurisdiction was reached, both carpenters and lathers would abide by the assignments of such work made by the respective contractors having the jobs and would not press or process claims to such work. Lrwon Representative Boe, an experienced and knowledgeable agent of the Carpenters Local, was fully aware of the status quo agreement (as was Hansen and Frank's and other Sioux City contractors who followed it), but Boe decided to jump the agreement and take by force of economic pressure on the general contrac- tor and uninvolved subcontractors the subcontracted metal stud installation work in the Orpheum Building for his car- penters. He paid lip service, only, to the status quo agree- ment by announcing that because of it he was not seeking reassignment of the work from lathers to carpenters. He also said he did not contest the right of Hansen to subcontract to Frank's. All he asked, said Boe, was merely the equivalent in dollars, from Hansen, of what the carpenters would have earned if they had done the work (see fn. 7, supra), on the ground that the subcontract and assignment of work to the lathers were indeed improper. At this point, in his pro- nouncement, Boe had stopped giving even lip service to the status quo agreement. He ignored that it had become in fact, if not in physical location, a part or modification of the scope of work provision of the agreement between the Un- ion and Hansen 9 not unlike the settlement arrangement in OTheum and other buildings in which they had subcontracted work At the very least, the status quo agreement reached by the unions appears to include the contractors as third party beneficiaries (see G C Exh 10) CARPENTERS, LOCAL 948 the scope of work provision for disputes over installing met- al studs for lath and plaster. (See fn. 3, supra, and applicable text.) Union Representative Boe's International Carpenters Union rebuked him for ignoring the status quo agreement with the Lathers Union (of whom the lathers performing the Frank's subcontract were a part) and requested him to with- draw his pickets. Boe's compliance was somewhat less than bona fide. He pulled the pickets off the Orpheum Building, where the disputed work was being performed, but kept them on other Hansen jobsites in Sioux City , on the ground that the International's request did not mention the other buildings. The net result was that the general work stoppage by the employees of Hansen and the many subcontractors continued. As indicated, the primary labor dispute of the Union was not with contractor Hansen or with the bulk of his subcon- tractors, but was with subcontractor Frank's because Frank's used lathers rather than carpenters to do the metal stud installation under its subcontract . Hansen and its other subcontractors were secondary or neutral employers in the Union's dispute with Frank's. This is manifest (notwith- standin g, Boe's alleged claim for money damages against Hansen) from Boe's assertions , both to the Hansen people and at the trial, that there would have been no problem if carpenters were doing the Frank 's subcontract work and that the claim for money damages would not have been pressed if Hansen had persuaded Frank's to take the lathers off the job. These statements by Boe, and his even more direct state- ment at the inception of the dispute to Hansen's Expediter Jacobsen, to get the lathers off the work because it belonged to the carpenters , give clear indication of the secondary nature of the alleged damage claim against Hansen and the secondary nature of the economic pressure allegedly to en- force only the claim . In actuality, by picketing and striking Hansen and his subcontractors, the pressure was on them to get subcontractor Frank's off the job, unless Frank's complied with the Union demand to use carpenters in place of lathers. Indeed, the secondary boycott, which the (local) Union sought to obtain from the neutrals , was calculated to pro- mote the Union's violation of its own contract undertaking, an undertaking to refrain from making jurisdictional claims of work, for carpenters, on contractors or subcontractors who by the undertaking could use either lathers or carpen- ters. A not dissimilar attempt by a union, using a strike against the general contractor to pressure him to make his subcon- tractor fire lathers and rehire carpenters , was held to be a classic example of secondary coercion in violation of Sec- tion 8(b)(4)(ii)(ii)(B) of the Act, in N.L.R.B. v. Carpenters District Council of New Orleans, 407 F .2d 804 (C.A. 5). As here, the subcontract did not require the subcontractor to use carpenters (though there was not present , as here, the positive contract inhibition on the union to refrain from requiring it). The union argued that it didn't suggest that the contractor "cease doing business" with the subcontractor, in the literal words of the statute , but rather preferred that the relationship not be severed if the contractor would influ- ence the subcontractor to use carpenters . It was held that the "cease doing business" provision of the statute encom- passed use of secondary pressure to cause a serious disrup- tion of the existing business relationship , even though the disruption was less than total cancellation of the business connection between the primary employer (subcontractor) and secondary or neutral employer (contractor). The objec- tive of the union's secondary pressure , said the court, was 487 to force the contractor to cease doing business with the subcontractor under the existing contractual arrangement and to coerce the adding of a new condition. Likewise here, though the Union did not explicitly de- mand that Hansen cancel the subcontract with Frank's, the demand, enforced by strike, that Hansen pay twice for the work (in the form of damages to the Union) if the subcon- tractor refused to use the Union' s members (and Frank's did refuse) left Hansen with no realistic alternative but can- cellation of the subcontract if it capitulated. Compare, N.L. R.B. v. Local 3, International Brotherhood of Electrical Workers, 325 F.2d 561 (C.A. 2), enf. 140 NLRB 729, finding a Section 8(b)(4)(B) violation. As observed by the Board, 140 NLRB at 730, acquiescence by the contractor and sub- contractor in the forced imposition of an added condition of performance would require that the contractor cease doing business with the subcontractor on the basis of their original arrangement.10 Even if it be assumed, as union counsel argues contrary to the fact, that contractor Hansen breached its agreement with the Union by not requiring in the subcontract that subcontractor Frank's use carpenters, the law is established that secondary coercion on the neutral or secondary em- ployer with whom the Union has its contractual arrange- ment cannot be justified by the contractual arrangement, and his breach of that contractual arrangement is not a defense to the secondary coercion by the Union, N.L.R.B. v. Carpenters District Council of New Orleans, supra, 407 F.2d 804, 806-807, citing and relying on Local 1976, United Brotherhood of Carpenters v. N.L.R.B. (Sand Door), 357 U.S. 93. A secondary subcontracting clause (permitted in the construction industry under the proviso to Section 8(e) of the Act) may not be enforced through economic action, such as the picketing and strike invoked here, but may be enforced only through a lawsuit. Orange Belt District Coun- cil of Painters v. N.L.R.B., 328 F.2d 534, 537 (C.A.D.C.).11 In my view, the picketing and strike by the Union of contractor Hansen and its subcontractors at the Hansen 10 Accord, finding a Section 8(b)(4) violation on less than a total cessation of an existing business relationship , N L R B v Milk Wagon Drivers Union Local 753, 335 F 2d 326, 328-329 (C.A 7) A contrary view, of the Third Circuit, N L R B v Local 825, International Union of Operating Engineers, 410 F 2d 5 (C A 3), is undergoing review by the Supreme Court on challenge of the Board, N L R B v. Local 825, International Union of Operating Engi- neers and Burns and Roe v. Local 825, International Union of Operating Engi- neers, 397 U S 905 11 The secondary subcontracting clause , article VII of the agreement, rec- ognizes, as valid, subcontracting to persons who "observe wages, hours, and conditions of employment established by labor unions having jurisdiction over the type of services." And, the scope of the work clause , article 1, section 2(k), as modified or interpreted by the status quo agreement between the Carpenters Union and Lathers Union, recognizes that both unions have jurisdiction over the type of services (installation of metal studs for drywall) Subcontractor Frank 's employed members of the Lathers Union under a collective-bargaining agreement with that union . Hence the difficulty in giving any credence to union counsel's premise of a breach of the agreement, which in any event could be tested and remedied only by lawsuit and not economic action Union counsel puts his reliance on National Woodwork Manufacturers Association v NLRB, 386 U. S 612, on an assumption that the labor dispute here is primary with contractor Hansen for the preservation of exist- ing carpenters' work Union counsel studiously avoids comment on the status quo agreement, which established that the work in issue is both lathers' and carpenters' work Nonetheless, National Woodwork is not apposite, because the subcontracting clause and the Union's efforts were addressed to the labor relations of subcontractor Frank 's, who is the primary employer, rather than general contractor Hansen As the Board recently observed, in Cement Ma- sons Local Union No 812, 182 NLRB 928, 930 , even assuming a lawful work preservation object, since there were other objects in the picketing of the contractor that violated Section 8(b)(4)(B), the picketing was unlawful 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jobsites in Sioux City, in April 1970, was unlawful coercion on them to either require subcontractor Frank's to displace his lathers with carpenters, or cease doinbusiness with Frank's, in violation of Section 8(b)(4)(i)(iii)(B). CONCLUSIONS OF LAW 1. By picketing and striking contractor Hansen and its subcontractors and inducing. their employees to refuse to perform any services, with an object of forcing Hansen and its subcontractors either to compel subcontractor Frank's to displace his lathers with carpenters who are members of the Carpenters Union or cease doing business with Frank's, the Union has engaged in unfair labor practices in violation of Section 8(b)(4)(i(ii)(B) of the Act. 2. The unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes . In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Rela- tions Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Courts of Appeals Enforcing an Order of the National Labor Relations Board." 13 In the event that the Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this order, what steps Respondent has taken to comply therewith " THE REMEDY It will be recommended that the Union cease and desist from the unfair labor practices , post the notices provided for herein, and return additional signed copies of the notices for distribution by the Regional Director to the contractor and subcontractors for posting, if they are willing. RECOMMENDED ORDER Upon the foregoing findings and conclusions, and upon the entire record, it is recommended that the Union, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Engaging in, or inducing or encouraging employees of Hansen or its subcontractors to engage in, a strike or picket- ing or refusal to perform services in the course of employ- ment, or otherwise threatening or coercing Hansen or its subcontractors, where an object thereof is to force Hansen or its subcontractors to cease doing business with subcon- tractor Frank's, or to force Frank's to displace in its work lathers with carpenters, or to force Frank's to recognize and bargain with the Union has not been certified as such repre- sentative under the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Post in conspicuous, places in the Union's business offices and meeting halls, including all places where notices to members are customarily posted, copies of the attached notice marked "Appendix.' -Immediately upon receipt of copies of said notice, on forms to be provided by the Re- gional Director for Region 18, the Union shall cause the copies to be signed by one of its authorized representatives and to be posted and to remain posted for 60 consecutive days thereafter. Reasonable steps shall be taken by the Un- ion to insure that the notices are not altered, defaced, or covered by any other material.12 (b) Return to the Regional Director for Region 18, by mail or otherwise, a sufficient number (as determined by him) of the signed copies of the notice for posting by Han- sen, Frank's, and others of Hansen's subcontractors, if they are willing, at all locations where notices to employees and contractors and subcontractors are customarily posted. (c) Notify the Regional Director for Region 18, in wnting, within 20 days from the date of the receipt of this decision, what steps the Union has taken to comply therewith.I3 12 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of The United States Government After a trial in which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice: WE WILL NOT engage in, and WE WILL NOT induce or encourage employees of Chris Hansen Construction Co., Inc., or employees of its subcontractors, to engage in, a strike or icketing or refusal to perform services in the course of employment, for the purposes of forc- ing Hansen or its subcontractors to cease doing bus- iness with subcontractor Frank's Plastering Company, or to force Frank's to displace in its work lathers with carpenters, or to force Frank's to recognize and bar- gain with this Union as the representative of any of Frank's employees when this Union has not been certi- fied as such a representative. WE WILL NOT in any other way threaten or coerce Hansen or its subcontractors for the above-named pur- poses UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA , LOCAL No 948, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its rovisions, may be directed to the Board's Office, 316 Fepderal Building, 110 South Fourth Street, Minneapolis, Minnesota 55401, Telephone 612-725-2611.