Local 636, Plumbers and Pipefitters

LOCAL 636, PLUMBERS AND PIPEFITTERS Local 636, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO and Mechanical Contractors Association of Detroit, Inc. Case 7-CC-435 June 30, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On August 13, 1968, Trial Examiner Alvin Lieberman issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices as 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, Respondent filed exceptions to the Trial Examiner's Decision, and a supporting brief. The Charging Party filed a brief in support of the Trial Examiner's Decision and in answer to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed . The Board has considered the Trial Examiner' s Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions and recommendations of the Trial Examiner as modified herein. The issue in this and related cases in determining whether a union by its conduct has violated Section 8(b)(4)(B) of the Act' is whether the dispute is between the union and the person against whom the union's action is directed or between the union and another person . This issue can be resolved, as recently stated by the Court of Appeals for the First Circuit,' by a consideration of two questions: (1) What was the union seeking? (2) Was the person against whom the union directed its action in a position to do anything about it? As we agree with the Trial Examiner that it is unnecessary to reach the question of historical practice , we do not adopt his further finding that the piping work here involved has not historically and traditionally been performed at the jobsite . See and compare N.L.R.B. v. International Longshoremen's Association, (Bd of Harbor Commissioners), 331 F.2d 712, 719 (C.A. 3). Section 8(bX4) provides that it shall be an unfair labor practice for a labor organization "(i) to engage in, or to induce or encourage any individual ... to engage in a strike or a refusal . . . to use, manufacture, process . or otherwise handle or work on any goods ... or to perform any services, or (ii) to threaten, coerce, or restrain any person engaged in commerce ... where in either case an object thereof is :... (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or 189 Page Plumbing was the mechanical contractor involved in the construction of an additional building for Holy Cross Hospital. The engineer and architect retained by the Hospital specified in their plans that room heating and cooling should be provided by factory-piped fan coil units.' All bidders, including Page, were advised of this specification and submitted their bids in reliance thereon. The specifications further provided that the architect was to supervise the work and that he "shall interpret the Specifications . and shall decide all other questions in connection with the work." Although aware of the specifications, Respondent insisted to Page that the latter's employees, who were members of Respondent , were entitled to fabricate and install certain piping on the fan coil units in accordance with the collective-bargaining contract between Respondent and an association of which Page was a member. The contract provided that "all pipe two inches (2") and under and all hanger rods are to be cut, threaded, and installed by employees on the job ." Inasmuch as the contract between Page and Holy Cross Hospital required Page to perform all work "in strict accordance with the specifications," Page was without power to comply with Respondent's request. However, in an attempt to satisfy Respondent, Page did propose to the architect that the piping of the fan coil units provided for in the specifications be fabricated at the construction site. The architect rejected the proposal and insisted that the units be shipped to the job preassembled, as required by the specifications. Thereafter, as conceded by Respondent and found by the Trial Examiner, Respondent induced the employees of Page at the Holy Cross Hospital job site not to handle the manufacturer, or to cease doing business with any other person . 'Beacon Castle Square Bldg Corp. v. N.L.R. B., 406 F.2d 188 (C A. 1). ' 'In agreeing with the Trial Examiner that the specification required that the fan coil units be prepiped, we rely on the following facts: ( 1) Noble, the mechanical engineer, prior to drawing up the particular specification involved here, consulted with several manufacturers concerning the arrangement of the valves and piping in a single compartment and the ability of the manufacturers so to prepipe the units , and thereafter included those able to prepipe in the list of approved manufacturers. (2) Noble, at the time of drawing up the specification , intended that it require prepiping. (3) Nelson, the architect, and Noble agreed,, in conferences concerning the specifications, that the fan coil units be prepiped . (4) Noble, during the bid period, advised contractors that the specification required prepiping. (5) Page understood at the time he submitted his bid that the specification called for prepiping . (6) The end pocket valves, which the specification clearly required to be installed by the manufacturer of the fan coil units, are incorporated in and held in place by the associated or end pocket piping, and this is the normal way in which the valves are installed in the fan coil unit. (7) A prototype prepiped fan coil unit was delivered to the construction site and was there repiped by Respondent 's members in accordance with instructions from Page to provide (a) that the end pocket piping be in position for connection to the permanent piping , and (b) that the valves be easily accessible for maintenance purposes; the improved unit was then returned to the manufacturer for use as a prototype in the manufacture of identical units which could be used interchangeably throughout the building, interchangeability being an underlying reason for requiring prepiping. (8) Noble subsequently visited the manufacturer's plant for the purpose of instructing the manufacturer as to the acceptability of the piping. 177 NLRB No. 14 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD factory-preassembled fan coil units. It is obvious from the foregoing facts that Page, although willing to do so, was powerless to comply with Respondent's demand. As the Hospital through its architect would not relax or change the specifications for the job, a strike against Page would be fruitless in terms of achieving Respondent's objective, unless Page's customer, the Hospital or its architect, was thereby persuaded to change the contract specifications so as to permit Page's employees to fabricate certain piping on the job. In the real and practical sense Page was a neutral; it was caught between the conflicting demands of the Respondent and the Hospital, and was without power to resolve the conflict in the manner desired by Respondent. Section 8(b)(4) of the Act was intended to protect "employers in the position of neutrals between contending parties."' Inasmuch as Page was incapable of complying with Respondent's demands, an object of Respondent's conduct directed at Page must inevitably have been to cause Page to rescind its contract and thus cease doing business with the Hospital, a violation of Section 8(b)(4)(B) of the Act.' In deciding that Page was not the primary employer, we have used the "right to control" test.' This is the most readily available analytical tool in deciding the primary-secondary dichotomy and conforms, we believe, with the Congressional intent in proscribing secondary boycotts. It has received the approval of a number of Courts of Appeals." As explained by Judge Prettyman:' . The basic criterion is, as the statute (Section 8(b)(4)) specifically provides, the object, or objects, of the union action. So the problem is: What was the object? The Board has held several times that, if a union demands that a contractor do something he is powerless to do except by ceasing to do business with somebody not involved in the dispute, it is manifest that an object of the union is to induce this cessation of business. The courts to which this problem has come have agreed with the holdings. We think this is rational and proper reasoning. Recently the Court of Appeals for the Eighth Circuit'° expressed the view that the teachings of the Supreme Court's opinion in the National Woodwork 'National Woodwork Manufacturers Assn v N L.R B. 386 U S. 612, 625. 'Pipe Fitters Local No. 120 (Mechanical Contractors' Association of Cleveland, Inc.), 168 NLRB No. 138 , Local 5, Plumbers (Arthur Venneri Company), 137 NLRB 828, enfd. 321 F.2d 366 (C A.D C.), cert. denied 375 U.S. 921, International Longshoremen 's Association (Board of Harbor Commissioners), 137 NLRB 1178, 1182, enfd. 331 F.2d 712, 717 (C A. 3) 'Idem. 'National Woodwork Manufacturers Assn v N L.R B. 354 F.2d 594 (C.A. 7); Ohio Valley Carpenters District Council, U B. of C v N L.R B. 339 F.2d 142 (C.A. 6); N.L.R B. v. International Longshoremen's Association, 331 F.2d 712 (C A. 3); Local 5, Plumbers (Arthur Venneri Company) v. N L R B, 321 F.2d 366 (C.A.D.C ); N.L R B. v Enterprise Association , 285 F 2d 642 (C A. 2) 'Ohio Valley Carpenters District Council, U.B of C v. N.L R.B., 339 F.2d 142, 145 (C A. 6) case" indicate that "right to control" in and of itself can no longer be considered of decisive significance. We do not agree with this reading of the National Woodwork opinion. The National Woodwork case as it came before the Supreme Court involved only a situation where the contractor against whom the respondent union struck had the power either to fabricate doors on the jobsite or purchase prefabricated doors. He elected to do the latter. That case before the Board also involved an allegation that the respondent union had violated 8(b)(4)(B) by striking other contractors whose contracts with the owners of the construction projects involved specified that the contractors should furnish and install prefinished doors. The Board held that the union's refusal to permit handling of these doors was a violation of Section 8(b)(4)(B).' 2 The court of appeals affirmed this finding." The union did not seek review thereof. In the light of this situation the Supreme Court said that the Board's "right to control" doctrine was not before the Court.' ° It seems to us, therefore, that the words used by the Court in rationalizing its holding must be considered exclusively in the light of the question before it. It would be anomalous to argue that, although the Court expressly stated that it was not determining the validity of the "right to control" test, it nevertheless rejected that test. Therefore, until the Supreme Court explicitly decides to the contrary, the Board will continue to use the "right to control" test in appropriate circumstances in determining whether an unlawful secondary boycott exists." Accordingly, we find, in agreement with the Trial Examiner, that by its conduct vis-a-vis Page, Respondent engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and "American Boiler Manufacturers Association v N.L.R B., 404 F 2d 556 (C.A. 8) "National Woodwork Manufacturers Assn v. N L R.B, supra. "Metropolitan District Council of Philadelphia, U.B C. & J of A (National Woodwork Manufacturers Association), 149 NLRB 646. "National Woodwork Manufacturers Assn v N L R.B, 354 F 2d 594 (C.A. 7). "National Woodwork Manufacturers Assn v N L R B , supra at 616, fn. 3. "In Beacon Castle Square Building Corp v N L R B, supra, a decision handed down subsequent to the Supreme Court ' s opinion in National Woodwork, the First Circuit Court of Appeals denied a petition for review of a Board order (170 NLRB No. 126) dismissing a complaint alleging 8(b)(4)(i) and (ii)(B) violation and in doing so applied the "right to control" test. It is true that in a footnote "moreover" argument, the court referred to the Eighth Circuit's decision in American Boiler Manufacturers Assn , in support of its Decision, but this was dictum LOCAL 636, PLUMBERS AND PIPEFITTERS orders that Respondent, Local 636, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALVIN LIEBERMAN, Trial Examiner : The trial in this proceeding , with all parties represented , was held before me in Detroit, Michigan, on several days between April 8 and May 3, 1968, upon a complaint of the General Counsel issued on March 18, 1968,' and respondent's answer.' In general, the issue litigated was whether respondent violated Section 8 (b)(4)(i) and (ii)(B) of the Act. Particularly , the questions for decision are as follows: 1. Did an object of respondent's inducement of employees of Page Plumbing and Heating Company (herein called Page Plumbing ) to refuse to handle or install factory piped fan coil room heating and cooling units in a hospital under construction at which Page Plumbing is the mechanical contractor fall within the proscriptions of Section 8(b)(4)(B ) of the Act? 2. A subsidiary question relating to respondent's object is: Did the architectural specifications for the construction of the building in question require the installation of factory piped fan coil room units by Page Plumbing. Upon the entire record,' upon my observation of the witnesses and their demeanor while testifying, and upon careful consideration of the arguments made and the able briefs submitted by the parties, I make the following: FINDINGS OF FACT 1. JURISDICTION There are three entrepreneurial entities involved in this proceeding. They are Holy Cross Hospital, Franciscan Sisters of Michigan, Inc. (herein called Holy Cross Hospital), for whose account a hospital building is being erected in Detroit, Michigan; Page Plumbing which was awarded the contract to perform the mechanical work, including the installation of fan coil room units, on the building under construction ; and Schemenauer The complaint was issued on a charge filed on March 5, 1968, by Mechanical Contractors Association of Detroit , Inc. (herein called the Association). 'During the trial the complaint and answer were revised in several respects. Insofar as the complaint is concerned paragraph 9 was amended to remove the designation of employer from Holy Cross Hospital and to allege only that it is a person within the meaning of those sections of the National Labor Relations Act, as amended (herein called the Act), set forth in the paragraph; paragraph 11 was amended by striking the following names and designations opposite those names- Don McNamara, Tom Williams, Pete Boyle, and Bill Palmer; paragraph 18 was stricken in its entirety; and the following paragraph was substituted for paragraph 20 On or about March 4, 1968, two pre-piped Schemenauer fan coil units to which were attached the Robertshaw valves, according to the specifications referred to in paragraphs 12, 13, and 16 above, were transported to the Holy Cross Hospital jobsite. Upon the amendment of the complaint paragraphs 8, 9, 11, and 20 of the answer were amended to admit the correspondingly numbered paragraphs of the amended complaint , and paragraph 18 of the answer was stricken. 'Issued simultaneously is a separate order correcting the stenographic transcript of this proceeding in several respects [Omitted from publication] 191 Manufacturing Company (herein called Schemenauer), the manufacturer of the fan coil room units which Page is to install in the hospital building. Holy Cross Hospital owns and operates a hospital in Detroit, Michigan. The hospital building presently being built will, when completed, serve as an addition to Holy Cross Hospital's existing facility. Schemenauer is engaged at Holland, Ohio, in the manufacture and sale of fan coil heating and cooling units and related equipment. Schemenauer annually sells and ships directly to customers located outside the State of Ohio, products valued at more than $50,000. Page Plumbing, a member of the Association, the charging party in this proceeding, is a machanical contractor in the building and construction industry, whose place of business is located at River Rouge, Michigan. During 1967, a representative period, Page Plumbing purchased and received in the State of Michigan products valued at more than $50,000 from suppliers located in other States. Page Plumbing bought goods and supplies worth more than $50,000 from vendors located outside the State of Michigan for use in connection with its work at the building being erected for Holy Cross Hospital. On the foregoing facts I find that Holy Cross Hospital is a person within the meaning of the Act.' I further find that the assertion of jurisdiction over this matter by the Board is warranted. S. M. Kisner, et al., 131 NLRB 1196, 1198-00; Siemons Mailing Service, 122 NLRB 81, 85; McAllister Transfer, Inc., 110 NLRB 1769, 1771-72. II. THE LABOR ORGANIZATION INVOLVED Respondent is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Briefly this case concerns itself with the refusal, concededly induced by respondent, of employees of Page Plumbing to handle fan coil units manufactured by Schemenauer or to install them, in rooms of a hospital building being erected for Holy Cross Hospital because they were not piped at the construction site, but, instead, arrived there with factory attached piping measuring 2 inches and less in diameter. The complaint alleges, and the General Counsel and the Association argue,' that respondent's inducement of the employees in question not to install the factory piped fan coil room units was violative of Section 8(b)(4)(B) of the Act` for the reason that the piping of the units was not within the control of Page Plumbing. This argument, in turn, rests upon the General Counsel's contention that the architectural specifications, which form part of Page Plumbing's building contract with Holy Cross Hospital, require Page Plumbing to furnish and install factory piped fan coil room units. 'For a discussion of the impact upon commerce of the hospital industry generally, see Butte Medical Properties, etc.. 168 NLRB No. 52 'As the arguments of the General Counsel and the Association are similar they will be referred to as the General Counsel's contentions 'Section 8(b)(4)(B), commonly referred to as the Act's secondary boycott provision, reads as follows: Sec. 8.... (b) It shall be an unfair labor practice for a labor organization or its agents - 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Claiming that its object in inducing employees of Page Plumbing not to handle the factory piped fan coil room units did not fall within the proscription of Section 8(b)(4)(B) of the Act, respondent contends that it did not violate that section . The object of its inducement, argues respondent, was to enforce its collective-bargaining agreement with Page Plumbing which provides for jobsite piping of such units when , as here, the pipe measures 2 inches or less in diameter . The purpose of this provision, respondent asserts on brief, is the permissible one of preserving "for job site pipefitters [such as those employed by Page Plumbing] . work they have historically and traditionally performed at job site." Respondent' s position concerning the architectural specifications is that they do not, as the General Counsel urges, require Page Plumbing to furnish and install factory piped fan coil room units. Alternatively, respondent contends that even if they do contain such a requirement this, alone, is insufficient to deprive Page Plumbing of control over the piping. B. Preliminary Facts and Conclusions 1. Respondent' s collective-bargaining contracts with the Association Since about 1958 respondent's collective-bargaining contracts with the Association, binding upon Page Plumbing and the Association's other members, contained provisions requiring pipe of a certain diameter to be cut, threaded, and installed by pipefitters at construction sites. Article XI of respondent' s current agreement with the Association states, in this respect, that "all pipe two inches (2") and under and all hanger rods are to be cut, threaded, and installed by employees on the job." Similar language has appeared in collective -bargaining contracts between respondent and associations of plumbing and mechanical contractors since about 1941, and respondent has sucessfully resisted efforts to delete it. 2. Pipefitters' historical and traditional work Respondent refers to article XI of its current agreement and similar provisions in previous agreements as clauses preserving for its members "work they have historically and traditionally performed at job site."' In this connection, William Kelly, respondent's business manager, testified that upwards of 80 percent of jobsite work performed by pipefitters is "on pipe two inches and under." However, there is no breakdown in the record as to how much of this work consists of installing in buildings under construction main and branch pipelines, with which this case is not concerned , and how much of r • r • s (4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce , where in either case an object thereof is: r • * r (B) forcing or requiring any person to cease using , selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, .. Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing; this work is devoted to the piping of auxiliary equipment, as typified by fan coil units, the possible relevancy of which has already been discussed.' On the other hand, the record shows that a variety of equipment containing factory piping measuring 2 inches or less is regularly handled and installed in buildings without disturbing the factory piping by pipefitters qualified to pipe the units involved at the jobsite. Thus, even the fan coil room units involved in this proceeding contain factory piping of less than 2 inches, technically known as crossover piping, and coils,' which piping, respondent admits in its brief, pipefitters "have never performed in the field." Furthermore, the record also shows that other types of factory piped equipment, including boilers, chillers, sterilizers, refrigeration units, and ceiling heating panels, are likewise handled and installed in buildings by pipefitters leaving the factory piping undisturbed. Accordingly, I cannot find on this record that piping of the type concerned here is, as respondent asserts "work [pipefitters] have historically and traditionally performed at job site." 3. The specifications About 1964 LaVern J. Nelson, an architect, was engaged by Holy Cross Hospital to design an addition to its existing hospital. With the agreement of Holy Cross Hospital, Nelson retained James P. Noble, a mechanical engineer, to assist him in preparing the mechanical plans and specifications and to supervise their execution. At conferences for the development of the mechanical concept for the hospital addition Nelson and Noble both agreed that room heating and cooling should be provided by factory piped fan coil units . Noble then drew the plans and specifications for the mechanical work, which, from time to time, he reviewed with Nelson . These covered, among other things the new buildings' plumbing, heating, air conditioning, and ventilating systems and made provision for room heating and cooling by fan coil units." The introductory language of the specifications relating to the room heating and cooling units states that the "[c]ontractor shall furnish and install , where shown on the plans, fan-coil room units manufactured and equipped as follows." They then describe the components of the units; such as, the cabinet, coil, fan, etc., and conclude with the following language: 'In view of the fact, as I find below , that the architectural specifications for the hospital under construction required Page Plumbing, the mechanical contractor , to install factory piped fan coil room units, a finding on the question of whether piping of the type appearing on such units has "historically and traditionally" been performed by pipefitters at jobsites, becomes unnecessary. National Woodwork Manufacturers Association, 149 NLRB 646, 658, aft in this respect 354. F.2d 594 (C.A. 7). Such a finding, however, would have been necessary in the event of a determination that the architectural specifications did not preclude Page Plumbing from piping the units at the construction site National Woodwork Manufacturers Association, et al, v. N L R.B, 386 U.S 612, 616, 646. For this reason evidence was received as to the historical and traditional work of pipefitters and its inclusion of construction site piping of equipment exemplified by, but not limited to, the fan coil units supplied by Schemenauer for installation by Page Plumbing . This evidence having been received, a finding on this point will be made for such value as it may have. 'See in. 7 'These units also contain a combination of pipe , known as end pocket piping, also measuring 2 inches or less in diameter. 'The mechanical specifications were received in evidence as G C Exh. 3. This exhibit will, as the occasion arises, be referred to in this Decision as G.C. Exh. 3. LOCAL 636, PLUMBERS AND PIPEFITTERS 193 Unit manufacturer shall install automatic pneumatic temperature control valves furnished by Control Contractor and shall provide all associated piping including a non-rated stop valve (optional - rated gas valve) on supply and return... . Approved products shall be Schemenauer, American Air Filter, Carrier, or approved equal." The mechanical specifications also provide that the architect shall supervise all work, and that he "shall interpret the §pecifications . . . and shall decide all other questions in connection with the work."'= Upon the completion of the mechanical plans and specifications early in 1966 they were submitted to contractors and bids were invited. During the bidding period, which closed in May 1966, Noble, the engineer who prepared the plans and specifications, conferred with several mechanical contractors, including Page Plumbing. In the course of his conferences with the contractors Noble discussed the entire job with them and answered their questions concerning his interpretatio of the plans. In this connection, Noble, as he related, advised the contractors, when the subject arose, that "the specifications called for prepiped [fan coil] units." Not only did Noble advise contractors during the bidding period that the fan coil room units were to be "prepiped," but he also gave his interpretation of his specifications from the witness stand. "It provides," he testified, "that the manufacturer of the fan coil unit furnish, install the control valves and the piping in connection with if This as a completed, prepiped, prewired unit will then be shipped to the contractor." Noble further testified that in drawing the specifications for the units, "it was [his] intent to provide for prepiping ... and preassembly." Nelson and Edward Page, president of Page Plumbing, which pursuant to contract with Holy Cross Hospital is performing the mechanical work involved in building the addition to its hospital, gave similar testimony as to the meaning of the specifications relating to the fan coil room units. Thus, Nelson, who as architect, it will be remembered, is specially designated in the specifications to be their interpreter "and to decide all other questions in connection with the work" stated that he "was aware that when the specifications were written [the fan coil room units] were to be prepiped." In the same vein Page, who signed the bid submitted by Page Plumbing on the basis of which Page Plumbing was awarded the mechanical contract, said that "the specification called for fan coil units to be furnished with control valves and associated piping, factory installed"; that it was his "understanding [when he submitted the bid] that there was to be prepiping"; and that "there wasn't any doubt in [his] mind" as to this. As noted above in connection with my findings as to the historical and traditional work of pipefitters, the fan coil room units in question contain a combination of pipe known as end pocket piping. The automatic pneumatic temperature control valves mentioned in the specifications are attached to, and held in place by, pipes within this end pocket. As Kelly, respondent's business manager, testified in this regard, he has never "seen a fan coil unit [of the particular type under consideration here] in which [the] "G C Exh. 3, pp. MAC-8 and MAC-9 "G.C. Exh. 3, "General Conditions," p. 2. control valves are mounted any differently." The contract between Page Plumbing and Holy Cross Hospital, which was entered into on June 8, 1966, provides in pertinent part, that Page Plumbing "shall furnish all labor and materials and perform all work for Mechanical Trades for: Additions to Holy Cross Hospital in strict accordance with the specifications." Following the contract's execution Page Plumbing ordered factory piped fan coil room units from Schemenauer for installation in the building being erected for Holy Cross Hospital. During the winter and spring of 1967 Edward Page, president of Page Plumbing, and Kelly, respondent's business manager, discussed the work which Page Plumbing was to perform at Holy Cross Hospital's addition. The principal topic of their conversations was the architect's specifications for the fan coil room units. On one occasion during this series of talks Kelly, as he put it, told Page that respondent was "standing on the two inch and under clause in [its] contract [with the Association]," and that this "contract had been in existence many years longer than this architect's specifications and [he was] sure [Page] could get it changed if we put enough pressure on." Kelly further testified that "every time [he] saw" Page during this period he informed Page that "when these [factory piped] units came on the job ... we wouldn't unload them." On May 5, 1967, following conversations between Kelly and Edward Page, as set forth above, Page Plumbing in a letter to Nelson, the architect, proposed that the piping of the fan coil room units provided for in the specifications be fabricated on the construction site. After several consultations with Noble" concerning the proposal made by Page Plumbing, Nelson rejected it and authorized Noble to inform Page Plumbing of his decision. This Noble did by letter dated September 22, 1967, in which it was stated that "it is the decision of the Architect and my decision as the mechanical engineer, that the specifications shall stand and the . . . unit ... shall be shipped to the job preassembled...." In November 1967, an unpiped fan coil unit manufactured by Schemenauer was received at the hospital addition construction site. This was not a room unit, but a ceiling unit, and, apparently, the only one of its type for which provision was made in the architectural plans. Although the function of the fan coil ceiling unit and the fan coil room units is the same, i.e., heating and cooling, the ceiling unit is, as the testimony of Robert Quinn" shows, different in size and composition from the room units. There are further differences in the place, and manner, of installation. Thus, the ceiling unit was installed face down above a ceiling and the room units are to be installed in an upright position inside the rooms. The architectural plans call for the placing of this unpiped fan coil ceiling unit above the ceiling of a room which will serve as a physicians' lounge. It was installed there by employees of Page Plumbing. As noted, the General Counsel contends that the specifications require the installation of factory piped fan coil room units. Respondent takes a contrary position." "Noble, it will be remembered, is the engineer Nelson engaged to assist him in preparing the mechanical plans and specifications for the hospital addition which Nelson designed for Holy Cross Hospital. "Quinn is employed as a foreman by Page Plumbing He is a member of respondent, which called him as a witness on its behalf. "Although the relevant portion of the specifications appears earlier in this Decision , it will be again set forth here for ready reference The 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The specifications are quite clear insofar as they provide for installation by the manufacturer of the fan coil room units of automatic pneumatic temperature control valves. They are not so clear, and may be called ambiguous, with respect to the piping with which we are here concerned . In this regard, they state that the "Unit manufacturer ... shall provide all associated piping." The specifications having been incorporated in the contract between Page Plumbing and Holy Cross Hospital, they must be interpreted , as respondent recognizes on brief "by accepted standards of contract construction." There are a myriad of rules, some of which are set forth in respondent's brief, by which contracts are construed." However, "the primary rule for the construction of contracts is that the court must if possible ascertain and give effect to the mutual intention of the parties." City of Harlan, Iowa v. Duncan Parking Meter Corporation , 231 F.2d 840, 841 (C.A. 8). The parties to the contract here under consideration, of which the specifications for the fan coil room units are a part, are Holy Cross Hospital and Page Plumbing. The ascertainment of their "mutual intention" is not difficult. It can readily be found in the testimony given by Noble and Nelson, representatives of Holy Cross Hospital, one party to the contract, and Edward Page, who signed the contract on behalf of Page Plumbing, the other party. Noble, the engineer who, with the agreement of Holy Cross Hospital, was retained by Nelson, its architect, expressly testified that he intended in drawing the specifications for the fan coil room units "to provide for prepiping." Similar testimony was given by Nelson" and Edward Page, the president of Page Plumbing. Declarations, such as these, as to the meaning of a contract by the parties to it are entitled to great weight. 4 Williston, Contracts, 790 (3d ed.). Many courts, both Federal and State, have spoken on this point to the same effect. For example, in Kerfoot et al, v. Kessener et al., 84 N.E. 2d 190, 200, the Indiana Supreme Court stated, "When a contract is ambiguous, the construction placed upon it by the parties is of great weight in determining the true meaning of the terms." Similarly, in Lambertz v. Builders, Inc. et al., 331 P.2d 559, 563, the Kansas Supreme Court held that "in determining the meaning of an indefinite or ambiguous contract, the interpretation placed upon it by the parties themselves is to be considered by the court and is entitled to great, if not controlling, weight." For further examples of like holdings, see Tyler, et al. v. New York Telephone Company, 192 F.Supp. 52, 57 (S.D.N.Y.); In re Field's Will, 204 N.Y.S.2d 947, 949 (N.Y. App. Div.); and Wack v. Wack, 74 N.Y.S.2d 435, 437 (N.Y. Sup. Ct.). Ascribing to the testimony of Noble, Nelson, and Page the great weight which the authorities hold it deserves, I specifications (G.C. Exh. 3, pages MAC-8 and MAC-9) provide: Contractor shall furnish and install, where shown on the plans, fan-coil room units manufactured and equipped as follows. * * * r s Unit manufacturer shall install automatic pneumatic temperature control valves furnished by Control Contractor and shall provide all associated, piping including a non-rated stop valve (optional - rated gas valve) on supply and return.... Approved products shall be Schemenauer, American Air Filter, Carrier, or approved equal. "See, for example, 4 Williston, Contracts, Ch. 22 (3d ed.); 3 Corbin, Contracts, Chs. 24 and 25; and 17 Am. Jur.2d, 624-710. "Inasmuch as Nelson was designated in the specifications as being the person to "interpret" them, I attach special significance to his testimony in this regard. find that the specifications under consideration require Page Plumbing to install factory piped fan coil room units in the hospital addition under construction for Holy Cross Hospital. There is a further basis for this finding. As found above, the specifications clearly state that the pneumatic temperature control valves shall be installed in the fan coil room units by their manufacturer. The evidence establishes that these valves are incorporated in, fastened to, and held in place by, the piping" which respondent contends should be attached to the units by its members at the construction site. To give effect to respondent's contention in this regard would make it impracticable for the manufacturer to install the valves . Inasmuch as the installation of the valves by the manufacturer of the fan coil room units is unambiguously set forth in the specifications, logic impels their construction as also requiring that the piping be installed by the manufacturer. One of the arguments made by respondent in its brief" is that the specifications should not be interpreted as providing for factory piping of fan coil units because one was received at the jobsite unpiped and was installed without objection from Noble. However, this argument overlooks the facts that the unit in question was a ceiling unit, not a room unit, with the specifications for which we are concerned; that it is different in size and composition from the room units; and that it was mounted face downward, whereas the room units are to be set in an upright position inside the rooms in which they are to be located. C. Facts Concerning Respondent's Alleged Unfair Labor Practices As noted in the introductory portion of this Decision the complaint alleges that respondent violated Section 8(b)(4)(B) of the Act by instructing employees of Page Plumbing not to handle factory piped fan coil room units, manufactured by Schemenauer, when they arrived at the construction site of the Holy Cross Hospital addition. The complaint further alleges that as a result of these instructions employees of Page Plumbing refused to unload or handle these units at the site. Although respondent's answer denied the foregoing allegations of the complaint, in its brief respondent conceded "that, pursuant to instructions pipefitters employed by Page on the Holy Cross job did, on March 4, refuse to handle two Schemenauer prepiped fan coil units."" Because of this concession particular findings will not be made with respect to respondent's conduct. Instead, it is generally found, paraphrasing where possible the language of Section 8(b)(4) of the Act, that respondent induced and encouraged individuals employed by Page Plumbing to refuse in the course of their employment to handle and work upon the fan coil room units manufactured by Schemenauer because they were piped in Schemenauer's factory rather than at the construction site. "The witnesses who gave testimony to this effect included Kelly, respondent's business manager. As earlier set forth , Kelly stated on this point that he has never "seen a fan coil unit [of the particular type under consideration here] in which [the] control valves are mounted any differently " "Although I have not discussed all of respondent's arguments and contentions each has been considered and studied. "The complaint also alleges, and the answer denies, that respondent advised a representative of the Association, the charging party, that it had instructed employees of Page Plumbing "not to handle the Schemenauer fan-coil units if they arrived prepiped." In view of respondent's concession, a finding as to this allegation would be surplusage. LOCAL 636, PLUMBERS AND PIPEFITTERS It is further generally found that in this manner respondent restrained and coerced Page Plumbing.t' D. Contentions And Concluding Findings Concerning Respondent's Alleged Unfair Labor Practices In view of my findings as to the import of the specifications which were included in the contract between Page Plumbing and Holy Cross Hospital and as to respondent' s conduct, my decision is governed by Mechanical Contractors ' Association of Cleveland, Inc., (crossover piping incident), 168 NLRB No. 138, and by National Woodwork Manufacturers Association (Nason, McDonnell, and Driscoll incidents), 149 NLRB 646, 657, 658, affd. in pertinent part 354 F.2d 594 (C.A. 7). In those cases it was held that where architectural specifications included in a contract awarded to a construction contractor provide for the installation of building components manufactured in a certain way it is violative of Section 8(b)(4)(B) of the Act for a labor organization to induce the contractor's employees not to handle or work upon those items , or to threaten to refuse to permit their installation, because of the manner of their manufacture. Thus, in Mechanical Contractors ' the Board stated in this regard: The Board of Education had specified in its contract proposals that "cross-over" piping be factory installed. Wrightco [the construction contractor] therefore had no choice but to contract with Trane [the manufacturer of the item involved] for the installation of the "cross-over" piping at the factory. The Board of Education and not Wrightco was responsible for this decision and only the former could change it. Wrightco was a neutral as to this aspect of the pipe installation, with the Board of Education being the primary employer. Hence, the pressure exerted against Wrightco, a secondary employer, to force the Board of Education, the primary employer, to change its specifications was secondary action which was unlawful under Section 8(b)(4)(B). Similarly, in National Woodwork the rationale for finding a violation of Section 8(b)(4)(B) was spelled out in the following language: As the specifications required the use of precut or prefit doors and the three contractors were required by contract to follow the specifications . the work of cutting out and fitting doors was thereby assigned by the owners [of the projects] to the mill suppliers and the general contractors were merely selected by the owners to carry out this predetermined assignment. The specifications thus effectively deprived these three general contractors of control of the assignment of this work and rule 17 [which provided for construction site cutting and fitting of doors] of their contract [with the District Council] therefore was no longer applicable. They could not grant the District Council's request that the work of cutting out and fitting doors be done on the jobsite and were powerless to settle the dispute ....In these circumstances, the effect which the District Council's conduct against the general contractors was designed to produce was to force or require the respective owners of the projects to reassign the disputed work to the general contractors by agreeing to "Effectively inducing a refusal to work constitutes restraint and coercion within the meaning of Section 8(b)(4Xii). Baughan Plumbing and Heating Company, Incorporated, 157 NLRB 20, 21. 195 change the specifications so as to eliminate the requirement for precut or prefit doors and to compel the three general contractors to change and reduce their contracts with their respective mill suppliers ... and the latter in turn with the door manufacturers . from prefit and precut doors to "blank" or "blind" [doors]. Thus, the real targets of the District Council's conduct were the respective owners of the three projects, the mill suppliers, and the door manufacturers. The three general contractors . were in these instances the secondary targets against whom the pressure was directed in the form of refusing to hang the precut and prefit doors in an effort to achieve the other objectives. Respondent's contention that the object of its conduct was to enforce the provision of its collective-bargaining contract with the Association relating to construction site fabrication of pipe measuring 2 inches and under in diameter is not well taken. Similar contract provisions were present and noted by the Board in Mechanical Contractors' and National Woodwork. With respect to this it was stated in the latter, in which a contract enforcement contention was also raised, "[t]he fact that the District Council was also seeking to enforce the `will not handle' provision of rule 17 of its contract with the three general contractors, a provision ... previously found to be a lawful work-protection or work-preservation clause, `does not make lawful conduct, which in the absence of such a provision, is prohibited by statute .. . [Local 5, United Association of Journeymen, etc., 137 NLRB 828, 831]."' Consideration of a related argument made by respondent is appropriate at this point. Respondent asserts on brief, as justification for its conduct, that it was preserving "for jobsite pipefitters . . . work they had historically and traditionally performed at job site." As I have already stated, I am unable to find, on the record of this case, that this is a fact. However, even had I found in respondent's favor on this point it would have availed respondent nothing . In National Woodwork a finding was expressly made "that the tasks of cutting out and fitting doors, has, at least customarily, been performed by the carpenters, employed on the jobsite." Nevertheless, the Board concluded, because of the specifications requiring the installation of precut and prefit doors, that the refusal of the labor organization there to permit employees to hang those doors was a violation of 8(b)(4)(B).22 National Woodwork Manufacturers Association et al, v. N.L.R.B., 386 U.S. 612, heavily relied on by respondent in support of its position that its object is not within the proscriptions of Section 8(b)(4)(B) of the Act, is patently not in point. That case, in pertinent part, was an appeal to the Supreme Court from that portion of the Board's decision in National Woodwork, affirmed by the court of appeals," dismissing the complaint which issued there insofar as it related to a refusal of a labor organization to permit employees to hang prefit and precut doors where their employer was not bound by specifications in his construction contract to install such doors." Not before the Court, as it explicitly noted," was "Compare the Board's conclusions in the same case that no violation was involved in similar conduct respecting employees of a contractor, Frouge, who was not required by building specifications to install factory finished doors "National Woodwork Manufacturers Association, et al, v N L.R.B , 354 F.2d 594 (C.A 7). "See In. 22. "See In 3 of the Supreme Court's opinion, 386 U.S. 616. 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that section of the Board's decision in National Woodwork in which a violation of Section 8(b)(4)(B) was found on similar conduct respecting employees of contractors required by architectural specifications to install factory finished doors. Respondent' s final argument, insofar as its object is concerned, is, as stated in its brief, that the "Board's right-to-control cases [cannot] foreclose all other inquiry on objective." This argument, on the soundness of which I make no judgment, should more properly be addressed to the Board, itself, or to higher authority rather than to a Trial Examiner, whose duty it is to follow precedent established by the Board . Prudential Insurance Company of America, 119 NLRB 768, 773, reversed on other grounds 361 U.S. 477. Page Plumbing being bound by its contract with Holy Cross Hospital to install in the latter 's hospital factory piped fan coil room units, it follows, because Page Plumbing could not control this aspect of its work, which respondent disfavored, that respondent' s conduct had an object proscribed by Section 8(b)(4)(B ) of the Act. I conclude therefore, that respondent engaged in unfair labor practices within the meaning of that section. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent' s activities set forth in section III, above, occurring in connection with the operations of Schemenauer and Page Plumbing set forth in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that respondent engaged in unfair labor practices within the meaning of Section 8 (b)(4)(B) of the Act, my Recommended Order will direct respondent to cease and desist therefrom and to take such affirmative action as will effectuate the purposes of the Act. In his brief, the General Counsel urges that I recommend an order of a type broader in scope than that which is normally entered in cases of this sort for the reason respondent "has previously been found in violation of substantially identical violations of the Act . Local 636, United Association (Detroit Edison Co.), 123 NLRB 225." Without commenting on the General Counsel's suggestion that the unfair labor practices which I have found respondent engaged in here were "substantially identical" with those present in Detroit Edison, I note that the latter were engaged in by respondent more than 10 years ago . Because of this time lapse the General Counsel' s request is denied. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Holy Cross Hospital, Schemenauer and Page Plumbing are engaged in commerce within the meaning of Section 2(6) and (7) and Section 8(b)(4)(B) of the Act. 2. Holy Cross Hospital is a person within the meaning of Section 2(1) and Section 8(b)(4) of the Act. 3. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 4. By inducing and encouraging individuals employed by Page Plumbing to engage in a strike and in a refusal in the course of their employment to handle and work upon factory piped fan coil room units manufactured by Schemenauer, which Page Plumbing was required by its contract with Holy Cross Hospital to install in an addition to a hospital being erected for Holy Cross Hospital, and by coercing and restraining Page Plumbing , an object thereof being to force or require Page Plumbing to cease using factory piped fan coil room units and to cease doing business with Schemenauer and Holy Cross Hospital respondent has engaged, and is engaging , in unfair labor practices within the meaning of Section 8 (b)(4)(i) and (ii)(B) of the Act. 5. The unfair labor practices engaged in by respondent, as set forth in Conclusion of Law 4, above, affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact , conclusions of law, and upon the entire record in this case , I hereby issue the following: RECOMMENDED ORDER Local 636, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, its officers, agents, and representatives , shall: 1. Cease and desist from engaging in, or in any manner, including orders, directions, instructions, requests, or appeals, however given , made, or imparted, inducing or encouraging any individual employed by Page Plumbing and Heating Company or by any other person engaged in commerce or in an industry affecting commerce to engage in, a strike or in a refusal in the course of his employment: (1) to handle or work upon factory piped fan coil room units or related products where Page Plumbing and Heating Company or such other person is required by contract to use such products , or (2) to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or in any manner, or by any means, threatening, coercing, or restraining Page Plumbing and Heating Company or any other person engaged in commerce or in an industry affecting commerce, where an object of any of the foregoing conduct is to force or require Page Plumbing and Heating Company or any other person to cease using, selling, handling, transporting, or otherwise dealing in factory piped fan coil room units or related products , when required to do so by contract, or to cease doing business with Schemenauer Manufacturing Company or with Holy Cross Hospital, Franciscan Sisters of Michigan, Inc. 2. Take the following affirmative action which it is found will effectuate the policies of the National Labor Relations Act, as amended: (a) Withdraw and rescind any and all orders, directions, instructions, requests, or appeals pursuant to which employees of Page Plumbing and Heating Company refused at the site of the construction of an addition to a hospital for Holy Cross Hospital, Franciscan Sisters of Michigan, Inc., to unload, handle, work upon, or install in said hospital addition under construction, factory piped fan coil room units. (b) Post at its office copies of the attached notice LOCAL 636, PLUMBERS AND PIPEFITTERS 197 marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 7, after being signed by respondent's authorized representative, shall be posted by respondent 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 respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Deliver to the Regional Director for Region 7 signed copies of said notice in sufficient number for posting by Page Plumbing and Heating Company, other members of Mechanical Contractors Association of Detroit, Inc., and Schemenauer Manufacturing Company, they being willing , at all locations where notices to their respective employees are customarily posted. (d) Notify the Regional Director for Region 7, in writing, within 20 days from receipt of this Decision, what steps have been taken to comply herewith.r' "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that this 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 herewith." APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 636 , UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, TO EMPLOYEES OF PAGE PLUMBING AND HEATING COMPANY, SCHEMENAUER MANUFACTURING COMPANY, AND TO EMPLOYEES OF ALL MEMBERS OF MECHANICAL CONTRACTORS ASSOCIATION OF DETROIT, INC. Pursuant to the Recommended Order of a Trial Examiner 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: After a trial in which all sides had the opportunity to present their evidence it has been found that we violated the law by committing unfair labor practices. Accordingly we post this notice and we will keep the promises that we make in this notice. WE WILL NOT in any way order , direct, instruct, urge, ask, persuade, or influence our members or other individuals employed by Page Plumbing and Heating Company to refuse to unload , handle, work upon, or install factory piped fan coil room units or similar equipment where Page Plumbing and Heating Company is required by building specifications or contract to install such equipment. WE WILL NOT call a strike, or in any way order, direct, instruct, urge, ask, persuade, or influence our members or other individuals employed by Page Plumbing and Heating Company or by any other company to refuse to do any work , NOR WILL WE pu pressure of any kind on Page Plumbing and Heating Company or on any other company where our purpose in doing any of these things is (1) to force Page Plumbing and Heating Company or any other company to stop using, selling, handling, transporting, or dealing in factory piped fan coil room units or similar equipment where Page Plumbing and Heating Company or any other company is required to do so by building specifications or contract; or (2) to force Page Plumbing and Heating Company or any other company to stop doing business with Schemenauer Manufacturing Company or Holy Cross Hospital. WE WILL, and WE DO NOW, cancel , revoke, and withdraw the orders and instructions given to our members and other individuals employed by Page Plumbing and Heating Company not to unload , handle, work upon, or install factory piped fan coil room units at the Holy Cross Hospital addition now under construction. WE WILL and WE DO Now, notify our members and other individuals employed by Page Plumbing and Heating Company that we have no objection to their unloading, handling, working upon, or installing factory piped fan coil room units at the Holy Cross Hospital addition now under construction. Dated By LOCAL 636, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO (Labor Organization) (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 persons have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 226-3200.