Local 742, Carpenters

LOCAL 742, CARPENTERS Local No. '742, United Brotherhood of Carpenters and Joiners of America , John Foreman, business agent and Harold Stolley, steward and J. L. Simmons Company, Inc.' Case 38-CC-50 September 5. 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On July 12, 1968. Trial Examiner Thomas S. Wilson issued his Decision in the above-entitled proceeding. finding that the Respondent Local No. 742, United Brotherhood of Carpenters and Joiners of America had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner's Decision and briefs in support thereof, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision,2 the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. On July 8, 1966, Simmons Company entered into an agreement with the Decatur and Macon County Hospital Association' whereby the former agreed to construct an addition to the hospital in accordance with certain specifications. This agreement was for the contractors (Simmons Company's) base bid as modified by Alternate No. 16 and Section 35 of the specifications, which provided for the installation of wood doors "in lieu of Plastic Faced Doors." This agreement further provided that within ". . . a period of sixty day's from the date of July 1, 1966, the Hospital should have the "option of reinstating work deleted by alternates...." By Contract Change Order No. 2 General, accepted by Simmons Company, the Hospital opted on August 15, 1966, for the deletion from the contract of Alternate No. 16. The consequence of this change order was to bring into effect paragraph 'Herein referred to as Simmons ( ompany or the Charging 1 arty 'We specifically disavow the gratuitous and wholly unwarranted remarks of the Trial Examiner regarding members of the legal and architectural professions 'Herein referred to as Hospital 351 I. a, of section 35 of the specifications which, as the Trial Examiner found, provided for plastic faced doors which carry a lifetime guarantee and are premachined; i.e., cut, routed, trimmed, and mortised at the factory.' Simmons ordered the required doors from Anderson Wood Products Company. In November 1967, 80 premachined plastic faced doors arrived at the construction site. Thereafter, on December 1, 1967. Foreman, a Local 742 business agent, told Neal, vice president and manager of the Decatur Building Division of Simmons Company, that the premachined doors were in violation of the local area agreement.' After being apprised of the fact that premachining was required by the specifications, Foreman stated that the Respondent's members employed by Simmons Company would not hang; i.e., install, the doors. Respondent claimed that routing, boring, and mortising, work that the specifications required be performed by the manufacturer, belonged to the jobsite carpenters. There followed on or about December 11, 1967, and January 30 and 31, 1968, refusals to hang the doors. On those occasions Dyslin, a job superintendent for Simmons Company, asked Stoller, the union steward and Respondent's agent, to hang the doors. On all three occasions Stolley refused. On December 11, 1967, subsequent to Stolley's refusal to hang the doors, Mamet, Respondent's attorney, suggested to Gebhard, Simmons Company's attorney, that an economic solution be worked out whereby the doors would be hung if Simmons Company negotiated an additional rate of pay for each premachined door hung. Subsequent to the filing of the unfair labor practice charge herein by Simmons Company, Corbin, a representative of Respondent's International, proposed to Neal on January 10, 1-968, that the doors would be hung but if the Respondent prevailed in the instant unfair labor practice proceeding, Simmons Company would either pay a specific premium or negotiate premium pay for hanging the premachined doors. When no substantive response to these proposals was received and after a letter from Neal dated January 31, 1968, further requesting that the doors be hung, Foreman informed Simmons Company by 'We find it unnecessary to the decision in this case to rule on the Trial Examiner's findings that the wood doors were not to be premachined, and that the change to plastic-faced doors resulted in a $12,000 savings for Simmons Company If it were necessary, we would find, based on the language of the specifications itself and the absence of any relevant extrinsic evidence to the contrary, that paragraph 1. c, of section 35 of the specifications applied to both paragraph 1, a, dealing with plastic faced doors, and paragraph 1, b, dealing with wood doors, and required that the latter as well as the former be premachined It follows that there was thus no "financial bonanza" to Simmons Company by virtue of the change from wood doors to plastic faced doors 'Simmons Company at all times material here was a party to a collective-bargaining agreement with the United Brotherhood of Carpenters and Joiners of America whereby the former agreed to abide by the local area agreement between Decatur Contractors Association Inc and Local 742. At the hearing herein Foreman stated that in his conversation with Neal he was referring to Article 11 of the local agreement which provides that Simmons recognize the jurisdictional claims of Respondent 178 NLRB No. 54 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD letter dated February 1, 1968, that Respondent would grant its members the right to install the doors. Respondent's members thereafter began installing the doors. We find in agreement with the Trial Examiner that the above-described threat of Foreman not to hang the doors constituted restraint and coercion of Simmons Company within the meaning of Section 8(b)(4)(ii). We find in addition that the above-described refusals by union steward Stolley, also a Simmons employee, of superintendent Dyslin's requests to hang the doors constituted refusals, in the course of his employment by Simmons Company. to handle the doors or perform services within the meaning of Section 8(b)(4)(i). Contrary to the Trial Examiner, however, we find that these acts had a cease-doing-business objective violative of Subsection (B). We base this conclusion on the following reasons: The Decatur and Macon County Hospital required in its specifications that plastic faced doors premachined by the manufacturer be installed in the addition to the hospital. While Simmons Company had a choice. subject to approval by the architect, as to the manufacturer of the doors, it had no choice as to whether or not the doors would be premachined by the manufacturer. The Hospital was responsible for this decision and only it could change it. Simmons Company was a neutral with respect to the assignment of this work. Hence, the pressure exerted against Simmons Company, the secondary employer, was for the purpose of forcing it to cease doing business with the Hospital and forcing the Hospital to cease doing business with Anderson Wood Products Company for the furnishing of premachined plastic faced doors, this was therefore secondary action which was unlawful under Section 8(b)(4)(i) and (ii)(B).` We so find.' THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(b)(4)(i) and (ii)(B) of the Act, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. `See Local 636 , United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry (Mechanical Contractors Association of Detroit. Inc ) 177 NLRB No 14. and Pipe Fitters Local No 120, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Mechanical Contractors Association of Cleveland ). 168 NLRB No. 138 Contrary to the Trial Examiner, in American Boiler Manufacturers Association, 167 NLRB No 79, the Board indicated no propensity to abandon the right of control doctrine. 'In view of our findings above, we find it unnecessary to decide whether a mere demand that a contracting company bargain with a union for premium pay to perform work on prefabricated products, such as the premachined doors in the instant case, would in and of itself be violative of Sec 8(b)(4)(i)(u)(B) CONCLUSIONS OF LAW 1. J. L. Simmons Company, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. J. L. Simmons Company, Inc. and Decatur and Macon County Hospital are persons within the meaning of Section 8(b)(4)(ii) of the Act. 3. Local No. 742, United Brotherhood of Carpenters and Joiners of America is a labor organization within the meaning of Section 2(5) of the Act. 4. By threatening J. L. Simmons Company, Inc. that Respondent's members employed by Simmons Company would not hang certain premachined plastic faced doors and by engaging in refusals to hang those doors, with an object of forcing Simmons Company to cease doing business with Decatur and Macon County Hospital and with Anderson Wood Products Company, Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that the Respondent, Local No. 742, United Brotherhood of Carpenters and Joiners of America. its officers, agents. and representatives, shall: 1. Cease and desist from: (a) Threatening. coercing, or restraining J. L. Simmons Company. Inc. with an object of forcing or requiring Simmons Company to cease doing business with Decatur and Macon County Hospital, Anderson Wood Products Company, or any other person with respect to premachined doors. (b) Engaging in a refusal in the course of employment to handle premachined plastic faced doors or to perform services for J. L. Simmons Company, Inc. with an object of forcing or requiring Simmons Company to cease doing business with Decatur and Macon County Hospital, Anderson Wood Products Company, or any other person with respect to premachined doors. 2 Take the following affirmative action which we find will effectuate the policies of the Act: (a) Post in Respondent's business offices and meeting halls copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Subregion 38, after being duly signed by an official representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained 'in the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order " LOCAL 742, CARPENTERS by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall he taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for Subregion 38, signed copies of the aforementioned notice for posting by J. L. Simmons Company, Inc., if it is willing, in places where notices to employees are customarily posted. Copies of said notice, on forms provided by the Regional Director, after being signed by Respondents representative as indicated, shall be returned forthwith to the Regional Director for disposition by him. (c) Notify the Regional Director for Subregion 38. in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE TO AL L MEMBERS OF LocAi No 742, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 01 AMERICA. AND TO ALL EMPLOYEES oiF J. L. SIMMONS COMPANY, INC. Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that. WE WILL NOT threaten J L Simmons Company, Inc. that our members will refuse to handle premachined plastic faced doors with an object of forcing or requiring Simmons Company to cease doing business with Decatur and Macon County Hospital, Anderson Wood Products Company, or any other person, with respect to premachincd doors WE WILT NOT engage in a refusal in the course of employment tc handle for J. L. Simmons Company, Inc. premachmed plastic laced doors with an object of forcing or requiring Simmons Company to cease doing business with Decatur and Macon County Hospital, Anderson Wood Products Company or any other person with respect to preinachined doors. WE Now notify our members employed by J. L Simmons Company, Inc. that we have no objection to their hanging premachined plastic faced doors at the Decatur and Macon County Hospital addition now under construction. LOCAL No. 742, UNITLD BROTHERHOOD OF CARPED rERS AND JOINERS OF AMFRICA (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. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Subregional Office. 4th Floor, Citizens Building. 225 Main Street, Peoria, Illinois 61602, Telephone 309-673-9282. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 353 THOMAS S. WILSON, Trial Examiner: Upon a charge duly filed on December 15, 1967, by J. L. Simmons Company, Inc., herein called the Charging Party or Simmons, the General Counsel of the National Labor Relations Board, hereinafter called the General Counsel' and the Board respectively, by the Regional Director for Region 38 (Peoria, Illinois ), issued its complaint dated .January 31, 1968, against Local No. 742, United Brotherhood of Carpenters and Joiners of America, John Foreman, Business Agent and Harold Stolley, Steward, hereinafter referred to as the Respondents, Local 742, or individually. The complaint alleged that Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(B) and Section 2(6) and (7) of the Labor Management Relations Act of 1947, as amended. herein called the Act. Copies of the charge, the complaint, and notice of hearing thereon were duly served upon the Respondents and the Charging Party Respondents duly filed an answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices Pursuant to notice it hearing was held at Peoria, Illinois, on April 16 and 17, 1968, before me. All parties appeared at the hearing, were represented by counsel, and afforded full opportunity to be heard, to produce, examine, and cross-examine witnesses, and to introduce evidence material and pertinent to the issues. Oral argument at the close of the hearing was waived Briefs were received on June 3. 1968, from the Respondents, Charging Party. and General Counsel. Upon the entire record in the case and from my observation of the witnesses, I make the following FINDINGS OFF FACT I. BUSINESS 01 THE CHARGING PARTY J. L. Simmons Company. Inc.. is, and has been at all times material herein, a Delaware corporation with office and place of business located at Decatur. Illinois. It is engaged in the construction business By the terms of an agreement entered into on July 8, 1966, with the Board of Trustees, Decatur and Macon County Hospital Association (Hospital), Decatur, Illinois, the Charging Party is the general contractor for a project known as Additions and Alterations to Decatur and Macon County Hospital, Decatur, Illinois, which is the only project involved herein. The complaint alleged. the answer admitted, and I find. that J L. Simmons Company, inc., is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act IT. THE RESPONDFNIS Local No. 742, United Brotherhood of Carpenters and Joiners of America is a labor organization admitting to membership employees of the Charging Party. John 'this term specifically includes the attorneys appearing for the General Counsel at the hearing 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Foreman is its business agent and Harold Stolley is the Union's steward on the Hospital project. 111. THE ALLEGED UNFkIR LABOR PRACTICES A. The Facts Sometime in the year 1965 the Board of Trustees, Decatur and Macon County Hospital Association, Decatur, Illinois, decided to enlarge its existing hospital facilities in Decatur. It had Dane D. Morgan and Associates, Architects, Burlington, Iowa, prepare plans and specifications for these additions and alterations to the existing hospital. Due to certain problems of financing this project the architects drew these plans and specifications with a number of alternate options upon which the contractors bid.' In other words the hospital intended to opt the cheapest "alternate" in order to keep the total price of the project down until its financing arrangements could be expanded to cover the more expensive alternates. Section 35 of these plans and specifications, which is the root of the trouble here, became known as Alternate No. 16. Alternate No. 16 gave the Hospital the option of selecting either "plastic faced" doors or wood doors. Section 35 of the specifications read as follows. PLASTIC FACED and WOOD DOORS 1. SCOPE. a. Unless otherwise scheduled, all doors shall be Solid Wood Core Doors with Laminated Plastic Finish as herein specified and shall be identified herein as Plastic Faced Doors. b See Method of Bidding. Alternates shall be taken to furnish, install, and finish Solid Wood Core Doors with Flush Wood Veneer Facings, job finished, as herein specified in lieu of Plastic Faced Doors. Flush wood veneered doors are identified herein as Wood Doors. e Each door to he factory fit and beveled to net opening sizes and shall be factory machined to satisfy the entire hardware schedule, except for surface applied hardware which does not require shop preparation. No cutting, routing, trimming, or mortising shall be permitted after doors leave factory and doors requiring modifications shall be returned to the factory. In general, locksets to be mortise type. hinges to be butt type, and closers to be overhead type surface applied. Most doors to have metal edge strips which shall be mortised flush with face of door Kick plates, push plates, and bumper plates to he surface applied A copy of an approved finish hardware schedule plus templates of hardware items will be provided by the finish hardware supplier. d. Contractor shall verify the name of the manufacturer of plastic faced and/or wood doors prior to negotiating a contract with this sub-contractor and shall provide detailed shop drawings showing doors, sizes, mortising, and details of glazed opening for review and approval. 2. DOORS 'As Robert G Neal, voce president and manager of the Decatur Building Division of J L Simmons Company, Inc, put it, "1 remember , at the time, I had the impression , well, here is a man that's in budget trouble, he's looking for money , but he's got high-priced ideas." a. All doors to be staved lumber core doors conforming to all requirements of Commercial Standards CS-171 as amended except doors with five inch stiles or rails which shall be stile and rail lumber core doors conforming to all requirements of Federal Specification LLL-D-581, Type 1, Style 11. b. Each door to be guaranteed for the life of the building. Guarantee shall conform to the Standard One Year Door Guarantee of the National Woodwork Manufacturers Association except that the life of the guarantee shall be extended as above stated. Repair and replacement including rehanging and refinishing shall be performed at no cost to the Owner. 3. PLASTIC FACED DOORS a. Both faces and both long edges of each door shall be covered with an approved 1/16 inch high pressure plastic laminate to meet the N E.M.A. requirements and top and bottom edges shall be sealed with a laminated sheet plastic to minimize moisture content changes h Colors and patterns of laminated plastic to' be as selected by Architect. 4. WOOD DOORS a. Face veneers and solid stock edge bands of doors located in rooms where walnut panelling is scheduled shall be premium grade plain sliced black walnut. Face veneers and solid stock edge bands of all other wood doors shall be premium grade plain sliced red oak. b. All exposed surfaces shall be smoothly sanded and covered. Wood doors to be job finished. 5. HANDLING and PROTECTION a. Doors shall be packaged, handled, and stored in a careful manner. They shall be protected from moisture and high humidity and shall at no time be exposed to inclement weather b. Each door to be numbered to correspond to its assigned opening. No job cutting, trimming, or patching will be permitted. c. After doors are hung, they shall be finished without delay and shall be protected from damage. Doors shall not be wedged open. Upon completion of project, any door with surface defects, split faces or edges, or noticeable scratches shall he rejected and replaced at no change in contract cost. On June 2, 1966, the bids on this project were opened and the Charging Party, Simmons, proved to he the low bidder. On July 8, 1966, the Hospital signed a contract with Simmons whereby Simmons agreed to purchase the materials and build the additions and alterations according to specifications for a sum of 52,961, 100. As of the date of the execution of this agreement the Hospital had opted under Alternate.No.l6the installation of the wood doors which, according to the Simmons' bid, constituted a $12.000 saving over the use of the plastic doors. However, Anderson Wood Products Co.. the supplier of the doors in either case, had agreed to supply Simmons with the specified plastic doors for only $10,000 more than the wood doors even though this Anderson hid further specified that "Wood doors under Alts. 16, 17 and 18 are not prefinished and worked for hardware." There is little question but that the Hospital at all times intended, as soon as the financing could be arranged, to have the plastic doors installed rather than the wood doors because of their supposed cheaper maintenance. However, 'Anderson read the spec.if-ications, quoted supra, as requiring only blank wood doors which were not prefabricated or premachined at its factory LOCAL 742, CARPENTERS at the time of the execution of the contract, the Hospital had chosen the wood doors, thereby, according to the Simmons' bid, saving $12,000. On August 9 and 15, 1966, Simmons held two prejob conferences with the business representatives of the various construction unions which would be involved in the project At the second meeting Simmons presented John Foreman, president of the local Building Trades Council and also business representative of Carpenter Local 742, a copy of the inch and one-half thick plans and specifications of the project for the use of these unions. Otherwise the record shows that there was no talk about these plans and specifications for the reasons that these meetings apparently were really only "get acquainted" meetings and, besides. Gordon L. Dyslin, Simmons' job superintendent on the Hospital project, had just been employed by Simmons on August 8, and admittedly had not read the plans and specifications himself. However, on August 15, 1966, Change Order No. 2, which increased the price of construction to $3,543,250, was accepted by both Simmons and the Hospital Among the other changes made by this Change Order No. 2 was one involving Alternate 16 whereby the Hospital ordered the prefabricated, factory machined, liletime guaranteed,' plastic covered doors in lieu of the previously ordered wood doors No copy of this Change Order No. 2 nor any indication thereof was ever given to the Union. As of the time of this project, Simmons had no direct contractual relationship with Local 742 of the Carpenters' union but did have at all times material here a contract with the international United Brotherhood of Carpenters and Joiners of America by which Simmons recognised the jurisdictional claims of the United Brotherhood and agreed to observe the working conditions and wages established in the local community. The local agreement applicable here was between the Decatur Contractors' Association, Inc., and Local No. 742 and contained the following two clauses. Any Employer who sublets any of his work must sublet such work in accordance with the current procedural rules of the Nat'l. Joint Board in effect at the time a dispute may occur. Any Employer who sublets any of his work must sublet such work subject to the provisions concerning wages, hours and working conditions as hereinafter set forth in this contract Anderson Wood Products Company, the suppliers of the doors involved herein, on the other hand had a contract covering its employees with the Carpenters' Local in Louisville and its doors.. whether plastic covered or wood, carried the Carpenters' union label. With one exception labor relations on the project appear to have gone well. However, in September 1967, Carpenter Steward Harold Stolley and the other six or seven carpenters then employed on the job refused certain work because of a jurisdictional dispute with the result that Simmons discharged three of the carpenters including 'Anderson' s "lifetime guarantee " read as follows Doors made by Anderson Wood Products Company, are clad with Formica laminated plastic, and made of the finest materials and workmanship They s.re free from defects that render them unserviceable or unfit for the use for which they were intended If properly stored, handled, installed and maintained , these doors are guaranteed against defects in materials and workmanship for the life of the installation A warp or twist of not to exceed 1/4 inch, determined by procedure No CS 171-58 of the U S Dept. of Commerce, shall not be considered a defect Any door found not to meet this guarantee will be repaired or replaced without charge (including reasonable labor cost) by the manufacturer 355 the steward Respondent Union filed charges of unfair labor practices against Simmons because of these discharges. With Attorney Gchhard representing Simmons and Mamet representing Local 742, this unfair labor practice case was settled by an agreement reinstating Stolley and the other two carpenters previously discharged and providing for their "continued employment." By the end of October, following the reinstatement of the carpenters in accordance with the settlement agreement. Respondents had reduced the number of carpenters employed at the Hospital project to two- Steward Stolley and Oestrich. The other carpenters previously employed had been transferred to other Simmons' projects About mid-November 1967, and several weeks before they were needed, approximately 80 of the plastic premachincd doors were delivered at the Hospital project. Although the project required only about 650 such doors, it was thought as of November that some 800 doors would be required With one exception, the 1963 Mid-America Building project in Decatur, the doors involved here were the first plastic covered, prcmachined doors on any project in the jurisdiction of Local 742. On the Mid-America Building 12-20 such formica covered. preinachined doors had been hung by Local 742 without objection Steward Stolley, having noted that these formica clad doors were factory preniachined, called this matter to the attention of John Foreman, business representative of Local 742, who in turn requested the advice of Attorney Mamet. Mamet advised Foreman that "there was a Supreme Court Decisions upholding the position that you've got the right to refuse to install these doors and that they are bargaining unit work, and you can protect the dimunition of the bargaining unit " Mamet further advised, "Why don't you [Foreman] go in there and see if you can talk to them [Vice President Neal of Simmons], and, particularly, since you only have 80 doors .. why don't you tell them you'll install these 80 doors and give them an opportunity well in advance to cancel the additional 800, the balance of the 800''" Even earlier, on November 18, Vice President Neal, suspecting that these prefabricated doors were going to become a problem, had written Simmons' attorney for advice on the matter.' Acting upon Mamet's advice, on December 1, Foreman telephoned Neal requesting a meeting about 10:30 a.m. Foreman appeared at this conference accompanied by Stolley Neal called Algie Brannon, a Simmons' job superintendent on another project, to sit in on the conference. Foreman opened the conversation by stating that he thought there was a "problem" involving these doors because the mill had done work that had been done in the past exclusively by the carpenters on the jobsite. Foreman maintained that this was a violation of the local agreement. Neal got out a copy of the local agreement and asked to be shown where the violation was. Foreman stated, "It's in there, it's in there" but failed to point to any particular provision of the agreement.' Neal then explained that Simmons was bound by the specifications of the project and pointed to specification 35 requiring the 'National Woodwork Manufacturers Association v N L R B. 386 U S 612 'This letter is not in evidence because a claim of attorney-client privilege was raised and sustained at the hearing 'At the hearing Foreman testified that he was referring to the clauses of the local agreement quoted, supra 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purchase and installation of premachtned formica faced and edged doors Neal reiterated that his company had no control" over the doors Stolley maintained that "Doors are doors" and asked why the plastic doors installed at the Adolph Meyer Zone Center had been prepared on the site Neal explained that in the Meyer project there were no specifications requiring premachined doors There was some discussion of the formica taced doors used in the Commons Building at Carbondale, Illinois. which had also been fabricated on the jobsite. Neal explained that the doors at Carbondale were guaranteed only for 1 year contrary to the specifications in the. Hospital project so that the Company had purchased the Carbondale doors as "blank doors" and prepared them in the field Foreman stated that it was the Union's position that the carpenters had been deprived of the work of fitting and machining the doors on the jobsite and that, on the advice of counsel, he was informing Neal that the Union "would not hang" the formica doors for the Company or permit any other subcontractor to do so. Foreman pointed out that the doors had been prepared by mill employees who received lower wages than the carpenters on the jobsite . Prior to the conclusion of the meeting, Foreman advised Neal that. on advice of counsel, he would hang the 80 formica doors that had arrived but it was his (Neal's ) responsibility to tell the mill that was manufacturing the doors to stop doing our [Local 742] work." The meeting ended with both Neal and Foreman deciding to leave the settlement of the matter up to their respectlvP attorneys The next overt move in this dispute occurred on December 11 when. on orders of Robert Neal, Job Superintendent Gordon Dyslin, accompanied by Simmons' Estimator Robert Briscoe and Carpenter Foreman Catlin, met by previous appointment with Steward Stolley and carpenter Oestrich at 12.30 p.m. in the intensive care unit where Dyslin requested Stolley and Oestrich to hang three formica clad doors on the ground that the Hospital was pressing for the completion of this unit Stolley asked, "Didn't Mr. Neal tell you not to hang these doors" and reminded Dyslin that there was still "a problem" regarding these doors. Dyslin denied that Neal had told him anything about the doors and again requested the carpenters to hang the doors Stolley refused to do so until the matter had been finally settled Dyslin then ordered the carpenters back to the work they had been doing prior to the meeting in the intensive care unit. Just before 5 p.m that same day, after a long telephone call from Neal regarding the "refusal" of the carpenters to hang the prefabricated doors. Simmons' attorney, Paul Gebhard, telephoned Mamct and advised Mamet that "his boy Foreman" was refusing to hang the prefabricated Anderson doors. Mamet, acknowledging that he was the Local's attorney and had been previously advised of the problem by Foreman, asked Gebhard if he had read the National Woodwork case. Gebhard answered that he had but that the case was not controlling because, in the instant matter, the architectural specifications required the prefabricated plastic doors and thus deprived Simmons of .'control." Mamet voiced surprise that the specifications called for preinachined plastic doors saying that this was the first he knew of this but assured Gcbhard that Local 742 intended no product boycott. Mamet stated that it was the policy of the Local and the International not to install precut doors so that it would do Gebhard no good to check with the International about that. Gebhard stated' that he thought the Respondents' position was a clear violation of law and Simmons would have to tile a charge. Mamet suggested that "a possible solution could be worked out where you could go ahead and hang your doors, and yet the bargaining unit would be protected" by negotiating a rate of pay additional for each of the premachtned doors hung. Gebhard answered that this "sounds to me like a payment for work not performed" because there would be no work done by any one on the .lobsite Mamet further suggested that any such suggestion of premium pay should be made by Gebhard to Simmons as Gebhard's own idea because of several cases Mamet had had against Simmons in the recent past. Gebhard answered that, while this didn't change his thinking, he would do some further checking on it and would "get back to Mamet" if the Company changed its position or if he heard anything different.' At -5 p.m. on December 13, 1967, Simmons telephoned the following telegram addressed to John Foreman to Western Union AS WE \I7yISED WHEN \OL CAME TO OLR OFFICE ON DrCEMJILR 1ST, PL RCHASE AND INSTALLATION 01 1ORMiCA DOORS ON DEC\TLR AND MACON ('OL-NT\ HOSPITAL PROJECT WAS REQLIRED By ARCHITECTS SPEC11ICAliONS. V. F FI \L) NO CONTROL O\ LR SPECIFIC\liONS RLQLIRiN(, PL R('H ASE OF 1111 SE DOORS. ON DECEMBER H. 1967 vv E RIQL LSTFD C \RPE\TFRS fO 1NS I At i. T1IESr DOORS AND TO DATL THEY HA\'L RFFLSLD. 1HLREEORF wL ARE EHING UNI AiR f ABOR PRACTICE CiIARC,ES wiTIi NATIONAL LABOR RELATIONS BOARD No doubt this telegram was delivered by the following day On December 1-5, 1967, without having "gotten back" to Mamet, Gebhard, on behalf of Simmons, filed the charge against Local 742 in the instant matter Mamet was so notified by a telephone call from the Subregional Office in Peoria. On December 19, 1967, Local 742. by Attorney Mamet. filed an unfair labor practice charge against Simmons claiming that Simmons had violated the settlement agreement in Case 38-CA-378 by laying off employees; by subcontracting bargaining unit work without negotiating with Union, and refusing to negotiate a rate for the installation of the prefabricated doors. The Regional Office's refusal to issue a complaint upon this charge was affirmed on appeal to the General Counsel withythe comment that Respondent could urge its charge of a refusal to bargain by Simmons as a defense to the complaint already issued on the Simmons' charge against Local 742. Also on December 19, Neal received a telephone call from Duff Corbin. International representative of the Carpenters, who told Neal that he, Corbin, was aware of the urgent need to complete the intensive care unit and so he had made arrangements to have the three formica doors hung in that unit. Neal expressed his appreciation and added that Simmons, "of course, looks forward to having this complete situation resolved, so we can proceed with the hanging of all the doors." To this Corbin answered that he "felt the situation would be resolved the first of the week, which would allow us to proceed with the hanging of the doors, the balance of the doors " Steward Stolley and Oestrich promptly thereafter hung the three prefabricated Anderson doors in the intensive care unit as had been thus agreed. None of the other 'The above findings constitute a consensus of the testimony of Attorneys Gebhard and Mamet as to their conversation There were several conflicts between the two, but, fortunately, none vital enough to a decision of this matter to require a credibility determination b) this Trial Examiner LOCAL 742. CARPENTERS prefabricated doors were hung at this time - nor was there any further request that they be hung at this time. On January 10, 1968. International Representative Corbin, being a the Simmons' office on other business, got in touch with Robert Neal and presented him with two agreements prepared by Attorney Mamet which provided that the doors in question would be hung but that, in the event that the Union won the case before the Board, the Carpenter employees would either be paid an additional hourly premium of a stated rate for hanging the premachined doors or the parties would thereafter negotiate the premium to be paid the employees. Neal accepted the proposed agreements and told Corbin that he would review them and pass them on to his attorneys This was the last heard of these proposed agreements until they were introduced into evidence at the hearing. On January 30, Gordon Dyslin, job superintendent, met Harry Stolley, carpenter steward at the project, on the south side of Hayes Street, and, in the presence of Simmons' Bob Briscoe, asked Stolley if the carpenters were ready to hang the formica doors. Stolley answered in the negative, stating that the situation had not yet been anuary 31. at straightened out. On the next day. January' approximately the same time and location the previous scene was again repeated with Stolley again stating that the carpenters were not yet ready to hang the formica doors as the situation had not been straightened out yet. However at this time Dyslin gave Stolley a copy of the letter requesting the carpenters to proceed with the hanging of the doors, the original of which had been sent to Local 742. This letter, dated January 31, 1968. read as follows This letter constitutes a formal request by the J. L. Simmons Company, Inc to the carpenters - -Employees of the Simmons Company who are members of Local No. 742 of the United Brotherhood of Carpenters and Joiners of Airerica. to proceed immediately with the work of instaJing on the above project the pre-cut formica clad, laced and edged doors manufactured by Anderson Wood Products Company, Louisville. Kentucky. Thtse are the same doors that we have previously requested you to install on this project. As you know, installation of these doors is required by the architects' specifications. The doors have been on the job site and available for installation since November, 1967. By letter dated February 1, 1968, Local No. 742, over the signature of John Foreman, answered as follows: After receiving your registered letter of January 31, 1968, regarding the installation of Pre Cut Formica-Clad Doors at the Decatur and Macon County Hospital project. To proceed immediately with the work of installing same, I will as Business Representative of the United Brotherhood of Carpenters and Joiners Local 742 do here by grant the right of my members to install the above-mentioned product. I did try to reach you by phone and found you were out of town, so please consider this letter as formal notification. Admittedly this was the first occasion that Foreman had instructed his members that they were free to install the premachined plastic doors. Thereafter Stolley and Oestrich with other carpenters subsequently hired by Simmons proceeded to hang the doors in controversy. This procedure was continuing at the time of the hearing. There was no proof, however, that the delay in the hanging of the doors had delayed the 357 completion of the project. There had been no strike or picketing over this matter. B Conclusions It is axiomatic that, in order to prove a violation of Section 8(b)(4)(i) and (ii)(B) of the Act, it is incumbent upon General Counsel to prove that a union or its agents. (1) Employed prohibited "means". i e., (i) "Induced or encouraged" employees to strike or to refuse "to handle" any goods, or (ii) "To threaten. coerce, or restrain" an employer, (2) for a prohibited "object", i.e., (B) To force that secondary employer to cease doing business with another employer, and (3) that said union action was not legitimate primary action. The facts here show that both the Employer Simmons and Respondents recognized the existence of a problem between themselves over the premachined Anderson doors. While discussing this problem and, indeed, while suggesting remedies therefor to Vice President Neal and Attorney Gebhard respectively, Respondents' Business Agent Foreman and its Attorney Mamet both stated or clearly indicated that Local 742 would not hang these premachined doors because of their adverse affect on the unit work of the jobsite carpenters. Under decided Board cases these statements, although here perhaps considered considerably out of context, are technically sufficient to constitute prohibited "means" within Section 8(b)(4) of the Act. I hereby so find. Although I make this finding here, I fear that this rule may well inhibit parties confronted with a problem of this sort from freely, openly, and frankly discussing it in ordinary day-to-day language one with the other in a bona fide effort to solve the problem. Such a rule tends to turn any earnest effort to find a peaceful solution to a problem into a game to see which one can entrap the other into an unguarded statement which might technically violate Section 8(b)(4), or some other section of the Act, so as to be able to run Co the Board and file a charge rather than to locate a peaceful solution to the problem. It seems to this Trial Examiner that many labor lawyers tend to prefer to try lawsuits than to find peaceful solutions.' There is not much difference between premachined and blank doors but that difference has resulted in a great deal of trouble and much litigation. The difference referred to, of course, is the fact that the work of preparing blank doors for hanging and hardware is performed by the carpenters on the jobsite whereas, as the name implies, prefabricated or premachmed doors come from the factory completely prepared for hanging and hardware thus eliminating much unit work and thereby taking money right out of the pockets of jobsite carpenters. Regardless of the financial effect upon the jobsite carpenters, the change from blank wood doors to premachined formica doors at the Hospital project by Change Order No. 2 amounted to a financial bonanza to Simmons. In the first place the records show that Simmons charged Hospital $12,000 more for the premachined doors than for the wood doors although the premachined doors cost Simmons only $10,000 more, a 'Apparently this tendency leads to the good life for those specializing to labor relations, for Bar Association statistics indicate that labor lawyers eat "higher on the hog" than most of their brothers specializing in other fields. In my opinion this tendency does not otherwise lead to good labor relations 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clear $2,000 profit by reason of a paper change only. In the second place the fact that the formica doors were premachined whereas the wood doors were not amounted to a saving of approximately $12,000 for Simmons by reason of not having to pay the jobsite carpenters to prepare those doors for hanging and hardware.10 Therefore Change Order No. 2 to the plans and specifications for this project alone made Simmons a clear profit of $14,000 consisting of the $2,000 from the Hospital and the $12,000 savings on pay to the jobsite carpenters. In its brief Simmons presents the following argument: 3. The Union Has Not Traditionally Performed the Work Sought. The union seeks to defend its illegal boycott by claiming that the disputed work was work it had traditionally performed. As stated above, even given a valid work preservation clause covering work that has been continuously and customarily performed by a union, attempts to enforce such a clause by means of a product boycott, where the employer does not control the disputed work, is proscribed secondary activity. Accordingly, the "traditionally performed" defense, which is essentially an 8(e) defense, has absolutely no relevance here. Nevertheless, the contention of the union herein as stated by its counsel [footnote omitted] is that the Board's "right to control doctrine" is erroneous, and further, that the union's activity here is protected because it was an attempt to preserve work which it had traditionally performed. Setting aside for the moment the clearly established precedents on the "right to control," it is obvious from the record in this case that the union has not in fact traditionally performed the work which it now seeks. There is no dispute over the fact that carpenters of Local 742 have traditionally performed the work of preparing wood doors of the type involved in the National Woodwork case. Nor is there any dispute over the fact that they have not traditionally done this work on metal doors [citation omitted]. As to formica doors involved in this case, the record is completely devoid of any evidence whatsoever that members of the Respondent union have ever prepared them to receive hardware either on or off the jobsite. In fact, the only evidence in the record on this point is to the contrary, and shows that the union has installed doors identical with those in dispute in the Mid-America Building (the old Labor Temple) in Decatur, Illinois [citation omitted]. Limited to the facts, the union cannot meet the requirements of the carefully articulated definition of traditional performance formulated by the Board and adopted by the Supreme Court in National Woodwork, supra. In National Woodwork, the Board in adopting the Trial Examiner stated- The tasks of "cutting out and fitting" the material listed in the second sentence of rule 17 are obviously tasks which are normally performed by carpenters. The record shows that there have been occasions when millwork, including doors, came to a jobsite without having been previously cut out and fitted, that the tasks of cutting out and fitting such millwork, including doors, were considered by the contracting parties to be unit work to be performed by the jobsite carpenters, and that the carpenters on the jobsite did in fact perform those tasks on those occasions. The "will not handle" "This $12,000 comes from not having to pay jobsite carpenters for 3 to 4 hours work per door on each of 650 doors at $5 05 per hour. sentence was the language used in an attempt to protect and preserve this type of work for the jobsite carpenters. [149 NLRB at 656-57.] Stewart Stolley's answer to this claim of Simmons was classic, "Doors are doors," and was also corroborated by the testimony of the most honest witness to appear at the hearing, Anderson's Sales Manager B. F. Potts, who testified that formica doors could be and were being prepared for hanging just as efficiently and well at the jobsite as at the Anderson factory. It is true that the use of formica doors at the Hospital project was in fact one of the very first occasions on which formica doors had been installed within the jurisdiction of Local 742. Some formica doors had been prepared for hanging by jobsite carpenters just outside the geographical jurisdiction of Local 742. It is also true that some few of the Anderson doors at the Hospital project required further preparation by the jobsite carpenters in order for them to be properly hung. In the light of the testimony that jobsite carpenters were competent to prepare formica doors, even as they were capable of preparing wood doors, nullifies the Simmons' argument that it was not traditional work because of the formica composition of the doors in question " In this case "Doors are doors," whether wood or formica. Accordingly I must, and hereby do, find that the work of preparing doors, wood or formica, for hanging and hardware, i.e., bevelling, routing, mortising, and cutting for length, is the historical and traditional unit work of carpenters at the jobsite. The facts also prove that in their protests against and refusal to handle the premachined doors on the Hospital project, Foreman, Mamet, and Stolley all pointed out on each such occasion that the use of premachined doors eliminated or reduced the historical and customary unit work performed by the jobsite carpenters as well as taking money out of the carpenters' pockets. In addition Foreman and Mamet both offered to hang the 80 Anderson premachined doors already delivered at the jobsite if Simmons would tell Anderson to "quit doing our [unit] work." Mamet and "Duff" Corbin, International carpenter representative, offered to hang the Anderson doors if Simmons would negotiate a rate for the hanging of such premachined doors and thus take care of the loss of that unit work. The whole protest by Respondents here was against the premachining of the doors with its resultant loss of traditional unit work for the jobsite carpenters. Respondents throughout sought recovery of the work lost either in fact and/or through additional compensation. The Trial Examiner is fully convinced and consequently must find that the object of Respondents' protest over the use of these premachined doors was to "it is interesting to note that in American Boiler Manufacturers Association , 154 NLRB 285 and 154 NLRB 314, the same firm of attorneys which represents Simmons here represented the Association there and made the exact opposite contention, to wit, that the union there had "waived" its claim to unit work of piping boilers at the jobsite by having installed prepiped boilers without objection on several occasions in the past In its brief on review after remand of the above cases, the Board had this to say regarding this contention To distinguish this case from Woodwork, therefore, petitioner's real argument necessarily must be that a work preservation object automatically loses its primary status, and becomes an improper basis for union action, once any substantial amount of unit work is allowed to be performed elsewhere Presumably, petitioner would require the union not only to demand a contractual protection when the first packaged boilers appear but, in addition, to strike for such a clause at that point or else lose its rights forever. Apart from the fact that such a rule would hardly be conducive to labor peace and intelligent collective bargaining, petitioner's argument is based upon a faulty view of Woodwork LOCAL 742, CARPENTERS preserve to the obsite carpenters their traditional work of bevelling, routing. mortising, and cutting the doors to length at the jobsite It was not a product boycott. In addition the facts prove beyond question that Respondents had no other objection to the use of doors manufactured by Anderson provided, of course. that they were not premachined so as to eliminate the aforementioned traditional jobsite work. Consequently Respondents had no purpose or object to cause Simmons to cease doing business with Anderson. The only possible "cease doing business" angle the Respondents might have had was that Anderson should cease doing "our [unit] work" which, at best, was purely coincidental and subsidiary to the work preservation objective found above There is in this case no showing, in the words of the Supreme Court, that the Respondents' actions here "were tactically calcula.ed to satisfy union objectives elsewhere." The Union's objective here related solely to the relationship of Simmons vis-a-vis its jobsite carpenter employees Up to this point on the question of "object" the instant case is on all lours with the leading case on premachined doors, National Woodwork Manufacturers Association v. N.L R B.. 386 U S. 612, 644, where the majority opinion holds: 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 he a neutral bystander, and the agreement or boycott would, within the intent of Congress, become secondary. There need not be an actual dispute with a 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 a 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. This will not always be a simple test to apply. But "[h]owever difficult the drawing of lines more nice than obvious, the statute compels the task." Local 761, Electrical Workers v. Lahor Board, 366 U.S. 667, 674. That the "will not handle" provision was not an unfair labor practice in this case is clear. The linding of the Trial Fxaminer, adopted by the Board, was that the objective of the sentence was preservation of work traditionally performed by the jobsite carpenters This finding is supported by substantial evidence, and therefore the Union's making of the "will not handle" agreement was not a violation of Section 8(e). Similarly. the Union's maintenance of the provision was not a violation of Section 8(b)(4)(B) The Union refused to hang prefabricated doors whether or not they bore a union label, and even refused to install prefabricated doors manufactured off the lobsite by members of the Union This and other substantial evidence supported the lending that the conduct of the 359 Union on the Frouge jobsite related solely to preservation of the traditional tasks of the jobsite carpenters. [Citations omitted.] 'sAs a general proposition, such circumstances might include the remoteness of the threat of displacement by the banned product or, services, the history of labor relations between the union and the employers who would be boycotted, and the economic personality of' the industry See Comment, 62 Mich L Rev 1176, 1185 et seq (1964) 1 Thus the National Woodwork case stands for the proposition that Respondents' work preservation object is legal and permissible within the meaning of Section 8(b)(4) However, here. unlike the National Woodwork case, the plans and specifications, at least after Change Order No. 2 on August 15, called for the installation of life guaranteed, plastic, formica doors premachined at the factory This gives rise to the argument that, when the plans and specifications require factory premachined doors, the project contractor has "no control" over the assignment of the work of preparing the doors for hanging and hence becomes the "neutral" secondary employer regarding the Union's work preservation demand as the assignment of that work lies elsewhere with either the owner, his architect, or the manufacturer of the doors. Accordingly, in its brief Simmons argues Thus, it is clear under all known precedent that even present a valid work preservation clause (concerning work that the bargaining unit has traditionally performed) an attempt to enforce such clause by a product boycott where the employer cannot control assignment of the work claimed is a violation of Section 8(b)(4)(B) of the Act National Woodwork, supra. accord, United Assn Pipe Fitters Local 455 (Atrierican Boiler Manufacturers) (3-M incident), 154 N.L R.B. 285, 290 (1965). enforced, American Boiler Manufacturers Association s. N I_ R.B., 366 F.2d 815 (8th Cir. 1966).'2 As noted subsequently in the Simmons brief, the National Woodwork case specifically did not decide this "Right to control" issue because. as shown in footnote 3 of that decision. the respondent union there did not see fit to appeal any part of the lower court's decision where the plans and specifications were involved. This reluctance on the part of the union there makes this Trial Examiner's job that much more difficult here. It is true that the American Boiler case, cited in the brief, did in fact specifically approve the Board's "right to control" doctrine. In last that was the only part of the Board's Order approved in that decision, the remainder of the case which the Board had dismissed was remanded to the Board with the caveat. Ccrttorari has been granted in National Woodwork Mfgrs. Assn , supra, 384 U.S. 968, 88 Sup Ct 1863, 16 L Ed. 680, and helpful guidelines from the Supreme Court upon the troublesome issues here presented may reasonably be anticipated. Simmons also argued in its brie) that the Board's National Woodwork decision, where the Board had found that the respondent union violated Section 8(b)(4)(B) of the Act by hanging door, for an employer (Driscoll) who paid the union a royalty therefor as well as by refusing to hang the doors for an employer (McDonnell) who refused to pay that royalty was authority for the proposition that "The law firm representing Simmons here also represented American Boiler Manufacturers Assn in the cited rase 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a contractor working with specifications requiring premachined doors need not bargain with the union as such actions would not be a defense to a secondary boycott charge. On this point the Board's decisions on remand in the American Boiler cases are of interest. In its decisions on remand after the decision of the Supreme Courf in the National Woodwork case, the Board reaffirmed its previous dismissals and, in addition, indicated a propensity to reverse the 3-M part of that decision, specifically cited by Simmons, if that had been possible under the terms of the remand. Regarding the 3-M part of the case, the Board held in pertinent part: 1. The alleged violation of Section 8(e). As the Board found in its original decision, the members of the fabrication committee on August 27 entered into a new ad hoc agreement to which Local Union No. 455, the Contractors Association and Hickey (by virtue of its membership in the Association) were parties, to the effect that the installation of the packaged boilers in this building was prohibited by the fabrication clause. We have found above that the fabrication clause was a lawful clause designed to preserve and reacquire trim-piping work traditionally performed by employees in the Contractors Association unit. To the extent that the ad hoc agreement had the same lawful object as the fabrication clause, it was, under the guidelines established by the Supreme Court, a primary work-preservation agreement outside the scope of Section 8(e). We note, however, that neither the Contractors Association nor any of its members, including Hickey, which contracted merely to install packaged boilers ordered by 3-M, was in a position to assign the trim-piping work at this project. Even if, in these circumstances, the Contractors Association and Hickey were regarded as secondary employers, and the August 27 ad hoc agreement as a "hot goods" agreement within the scope of Section 8(e), because these employers had no control over the assignment of the work, we would find, nevertheless, that as the trim-piping work in dispute was to be performed at the site of the construction, the August 27 agreement was protected by the construction industry proviso to Section 8(e), and was therefore lawful. The Board then found Local 455 did not violate Section 8(b)(4)(A). In the companion American Boiler case the Board's brief on review referring to the Tonka Toys incident says. As set forth in the counterstatement (pp. 6-7, supra), Lamb had ordered the packaged boiler for the Tonka Toys project and it was his employees who were scheduled to install the boiler." After the boiler had been delivered, the Union approached Lamb and attempted to have the trim-piping removed and reattached prior to installation. There is nothing in the record which demonstrates that Lamb could not have granted this demand. Installation of the packaged boiler as delivered was, in effect, an assignment to the boiler manufacturer of work the Union claimed for Lamb's unit employees. Compare Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203. Inasmuch as the Union was attempting "to prevent the assignment of such work to employees outside the unit" [R.34], by demands upon the unit employer, the "dispute was primary" as the Board concluded. Thus Lamb was the proper target of union pressure. [Citations omitted.] It is well settled moreover that any incidental effect this primary activity might have had on any suppliers of Lamb does not render unlawful the Union's otherwise lawful conduct. [Citations omitted.] Petitioner disputes the propriety of the Board's characterization of Lamb as the primary employer [Br. 27-28]. According to Petitioner the evidence shows that although it was Lamb who ordered the packaged boiler, it was some unidentified architect who specified that a packaged boiler should be used. Consequently the argument concludes, Lamb lacked control over the disputed work and would have been deemed a neutral employer. But this argument fades before the record. The fact is that such an architect's specifications are usually accompanied by language allowing an "equivalent or approved equal" alternative to the packaged boiler [R. 270], and that a field assembled boiler would have been a fair equivalent.... In these circumstances, the Union, can hardly be said to have pressured the wrong employer when it approached Lamb. It was Lamb who had ordered the packaged boiler, Lamb who employed the Jobsite employees who would suffer from the loss of work, and Lamb who could remedy the Union's complaint by purchasing a conventional boiler instead. "Contrast Lamb's position with that of 3-M , in the St . Paul case, who had ordered the packaged boiler, but was not the employer of the unit employees seeking the trim-piping work See pp . 6-8 of the Board's brief in the St. Paul case Another incident, Pierre Aircon, in that same Board decision, 167 NLRB No. 79, is also of interest here for the Board there held: 3. The alleged violation of Section 8(b)(4)(ii)(B). The Board in its original decision found that the fabrication committee's requirement of reasonable compensation" by Pierre Aircon Company for its breach of contract constituted a peaceful method of resolving this dispute, and, therefore, Local Union No. 455 did not threaten, coerce, or restrain employers by its conduct in connection with this project within the meaning of subsection (ii) of Section 8(b)(4). We have again considered this matter and are of the same view. Moreover, even if the fine were considered coercive, it was directed towards Pierre Aircon, which was the primary employer as far as the record shows and was for the purpose of preserving unit work. It therefore was not prohibited by Section 8(b)(4)(B). More recently, however, despite its decision on remand in the American Boiler cases, a divided Board again definitely reverted to the "right to control" doctrine with approval in Pipe Fitters Local No. 120 (Mechanical Contractors' Association of Cleveland, Inc.), 168 NLRB No. 138, where the Board found the union in violation of Section 8(b)(4)(ii)(B) as regarded "cross over" piping required in the plans and specifications but not in regard to "end-pocket" piping which was not so required. In the light of the above legal history I do not consider myself necessarily bound by the Mechanical Contractors' decision even though it be the Board's latest on the point so far as my research shows. There are a few features of the instant matter which are of assistance in drawing that line "more nice than obvious": At the time the Simmons-Hospital contract was signed "The fabrication committee required Pierre Aircon Company, on October 22, 1963, to pay $100 for violating the fabrication clause by "entering into a contract . . with the Deluxe Check Company for the installation of a . boiler [which] arrived with the trim on." LOCAL 742, CARPENTERS on June 9, the plans and specifications for that project called for wood doors with the historical preparation thereof for hanging to be done by the carpenters at the jobsite This situation existed at the time of the first prejob conference. The second preiob conference and the finalization of Change Order No. 2. substituting premachined doors for the wood, occurred the same day. But Local 742 received no notification of Change Order No. 2 at any time prior to the December 1 attempt by Local 742 to bargain the matter out with Simmons Hence, until that date, Local 742 had no means of knowing that its historical unit work had been subcontracted out by anyone to Anderson No work preservation contract clause is required when unit work is subcontracted out. Fibreboard Paper Products v. -V L.R B , 379 U S. 203. Its objection to this subcontracting was made promptly upon the discovery of the premachined doors to the immediate employer of the employees whose work was thus being lost. Actually the facts show that the premachining of the doors as well as the so-called lifetime guarantee required by the specifications were of no importance to either Hospital or its architect Hospital. through its manager. Perry, acknowledged that all it wanted was plastic lormica doors and that there had been no discussion of either premachining or the lifetime guarantee of said doors. The architect's sole interest, as its representation admitted, wao that the doors looked nice when hung. It thus looks as though the premachining and lifetime guarantee got into the specifications because some young architectural clerk, like young law clerks, discovered some nice sounding Itnguage in other plans and specifications and decided to copy same into these plans and specifications and for no other reason. There was nothing sacrosanct about the plans and specifications of this project. They had been changed before, as for example, Change Order No. 2. Also the specifications for the lead doors had been changed at the suggestion of the door manufacturer Simmons could have suggested the change in specifications here without trouble As previously noted, neither Hospital nor its architect knew nor cared about the prcmachining or the lifetime guarantee. They would have had no objection to another change of the plans and specifications in this regard. Such change would a,so have been satisfactory to Anderson from its hid on the wood doors and from Potts' testimony which also proved that such a change would have had no effect upon the doors. Potts also indicated that "something" could have been worked out even in regard to the lifetime guarantee. Neither Hospital. its architect, or Anderson was even given the opportunity to reject a change in the specifications relating to the doors. Simmons, the self-proclaimed "neutral" as well as the only party with a 361 financial stake in the matter, rejected the sugeestions of Local 742 for all parties without consultation by filing the unfair labor practice charges which started the instant case As previously noted Change Order No 2 resulted in a $14.000 bonanza to Simmons, an extra $2,000 over cost from Hospital and $12.000 right out of the pockets of the employee carpenters due to the elimination of unit work already included in the Simmons contract with Hospital because in the original hid the wood doors were not to have been premachined Rather than to ask for a very possible change in the specifications or to bargain a new rate for hanging premachined doors as suggested by f=oreman and Mamet, the attorneys for Simmons chose to file the charges here, thus eliminating entirely these possible peaceful solutions of the problem through collective bargaining. Implicit or explicit in the suggestions of Local 742 for a peaceful solution of the problem existing over the loss or dimunition of its unit work was the change in the plans and specifications permitting the return of the traditional unit work (preparing the doors for hanging) or its equivalent (a rate for hanging premachined doors) Each of these solutions related directly to the labor relations of Simmons vis-a-vis its own carpenter employees. Even if we accept the Board's per se "right to control" doctrine regarding the plans and specifications, still Simmons here had control over a sum of $14,000 with which to bargain a new rate for the hanging of what Simmons here maintains to have been a new product. Thus Simmons was not without control even under that doctrine. It was thus Simmons' refusal of the collective-bargaining principle which obstructed and prevented the reaching of a peaceful solution to the problem, whereas it was Local 742 disappointed in Simmons' refusal to bargain which hung the premachined doors with some slight delay but without delaying the completion of the building in any way Thus in this case we find the use of prohibited "means" but for a legal, legitimate "object" with the Union's action in regard to both being direct primary action vis-a-vis the employer of the carpenters involved. Thus under the principles of the National Woodwork case, Local 742 has not violated Section 8(b)(4)(B) of the Act. With the legal issues thus disposed of, the Trial Examiner wants to express the candid opinion that, if there had been more bargaining collectively and fewer unlair labor practice charges filed in the instant matter. everybody would have been better off financially except, undoubtedly, the lawyers. Accordingly, this Trial Examiner hereby recommends that the complaint in the instant matter against the Respondents here he d..,misscd in toto