United Bro. of Carpenters, Loc. #112, AFL-CIO

UNITED BRO. OF CARPENTERS, LOC. #112, AFL-CIO United Brotherhood of Carpenters & Joiners of America, Local # 112, AFL-CIO and Silver Bow Employers' Association and Butte Contractors' Association. Cases 19-CC-497 and 19-CE-19 November 9, 1972 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On April 22, 1972, Trial Examiner Robert L. Piper issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Parties filed exceptions and supporting briefs, and the Respondent filed a brief in opposition. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT L. PIPER, Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, as amended, was heard at Butte, Montana, on December 14, 1971,1 pursuant to due notice. The complaint, which was issued on October 15, upon a charge filed June 14 and amended October 13, and another charge filed October 13, alleged in substance that Respondent engaged in unfair labor practices proscribed by Sections 8(b)(4)(i)(ii)(A) and 8(e) of the Act by engaging in a strike and by threatening, coercing, and restraining persons engaged in commerce, both with an object of forcing such persons to enter into an agreement prohibited by Section 8(e), and by entering into such an agreement with such persons. Respondent's answer denied the alleged unfair labor practices. The General Counsel, Respondent, and the Charging Parties filed briefs. Upon the entire record in the case, and from my observation of the witnesses, I make the following: I All dates hereinafter refer to 1971 unless otherwise indicated. FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS 205 Silver Bow Employers' Association (hereinafter called Silver Bow) and Butte Contractors' Association (hereinaft- er called Butte Contractors) are associations of construc- tion contractors doing business in and around Butte, Montana. Silver Bow and Butte Contractors perform services for such contractor-members, including represent- ing such members in matters of collective bargaining with various labor organizations. The contractor-members of Silver Bow and Butte Contractors annually have done a total gross dollar volume of business in excess of $500,000, and have purchased goods valued in excess of $50,000 directly from suppliers located outside the State of Montana. Respondent admits, and I find, that Silver Bow and Butte Contractors are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent, United Brotherhood of Carpenters & Joiners of America, Local # 112, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. M. THE UNFAIR LABOR PRACTICES A. Introduction and Issues Respondent, Silver Bow, and the individual members of Butte Contractors were parties to a collective-bargaining agreement which expired April 30. Prior thereto, the parties entered into negotiations for a succeeding contract, during which Respondent proposed a new work-preservation provision. The parties having failed to reach agreement, on May 17 Respondent struck the employer-members of Silver Bow and Butte Contractors for such a work- preservation provision. During the strike, negotiations between the parties continued and they made various proposals and counterproposals with respect to such a provision. On August 20, the parties entered into an agreement containing a work-preservation provision, somewhat modified from Respondent's original proposal as the result of the various proposals and counterproposals during the strike. The work-preservation provision, fully quoted hereinafter, prohibited the subcontracting of certain specified work tasks required to be performed at the site of construction unless done at the contractor's shop. The issues as framed by the pleadings are: (1) engaging in, and inducing individuals employed by persons engaged in commerce to engage in, a strike, and threatening, coercing, and restraining persons engaged in commerce, both with an object of forcing Silver Bow and Butte Contractors to enter into an agreement prohibited by Section 8(e); and (2) entering into a contract or agreement whereby Silver Bow and Butte Contractors allegedly , agreed to cease and refrain from handling or dealing in the products of other employers, specifically, prebuilt or 200 NLRB No. 42 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD modular homes, and to cease doing business with other ARTICLE XXII persons, specifically, the manufacturers of such products. B. Chronology of Events CONTRACTING OR SUB-CONTRACTING OF WORK TO BE DONE AT THE SITE OF CONSTRUCTION The facts are substantially undisputed. During the latter part of 1969 and 1970, Respondent became aware of the availability of modular or prebuilt homes in the Butte market. Modular or prebuilt homes are those manufac- tured in a plant with substantially all of their construction completed. They are shipped to a lot or building site in two sections, where all that remains to be done is to "stitch" oi bolt the two sections together, place the structure upon and fasten it to a previously erected foundation, and connect the utilities. Thus the only work to be performed at the "site of construction" is the preliminary erection of footings and/or foundation, and the bolting together of the two sections and attachment to the foundation, plus the connection of the necessary utilities. In contrast with such modular homes, there are also available prefabricated or precut homes, which consist of sections or parts manufac- tured in a plant and delivered to a lot or building site. Such homes are substantially erected upon the site from such component parts. The record establishes that prior to the events herein Respondent's members without objection had performed the work of erecting such prefabricated or precut homes because such tasks preserved a substantial part of the unit work traditionally performed by such employees. On the other hand, the installation of modular homes by contractors substantially eliminated the jobsite work traditionally performed by Respondent's members, employees of the contractor-members of Silver Bow and Butte Contractors. On May 1, 1970, Respondent, Silver Bow, and the individual members of Butte Contractors entered into a collective-bargaining agreement which expired April 30. This agreement contained no work-preservation clause. On February 19, Respondent by letter advised Silver Bow that Respondent wished to negotiate a contract to succeed the contract due to expire April 30, and submitted several proposals, including a new "preservation of work" provi- sion to be added to the contract. Subsequently, beginning March 23, the parties held various negotiation meetings. At that first meeting Respondent did not delineate the specific terms of the work-preservation provision it desired, pointing out, however, that the introduction or use of modular homes in the Butte area by the contractors would eliminate substantial amounts of the work previously and traditionally performed by its members. The parties met again on May 3 and May 14. On the latter date, Respondent presented to Silver Bow and Butte Contractors a specific work-preservation provision consisting of an article XXII, including four sections, to be added to the prior contract. The work-preservation proposal was limited to work to be performed at the site of construction and proscribed the subcontracting of such work. Inasmuch as sections 1, 2, and 4 of article XXII were included not only in Respondent's first proposal but in each subsequent proposal and included in the contract finally agreed to, they are herewith quoted: Section 1. Application. The Employers are in the construction industry and both parties have elected to come under the proviso applicable to the construction industry contained in Title 29, Section 158(e) of the United States Code as amended. Section 2. Scope of the Foregoing. Sections 1 and 3 of this Article relate solely to contracting or sub-contracting and [sic] work to be done at the site of the construction, alteration or repair of a building, structure or other work. Section 4. Consistency with Federal Law. All provisions of this Article shall be interpreted, construed and applied in a legal manner consistent with the laws of the United States and not in conflict thereof. Section 3 of Respondent's original proposal was: Section 3. All of the following work shall be performed at the site of construction, alteration, painting or repairing of the building , structure or other work and,shall not be sub-contracted: (a) All wooden framing and wall assembling; (b) All wooden partition assembly; (c) All the metal partitioning and installation of studs under the jurisdiction of this Union; (d) All installation of wallboard; (e) All cutting and installing trim work in the structures; (f) All window framing and assembly; (g) The erection of all doors in the structures; (h) All cutting and assembling of wooden subfloors and floors; (i) All sheeting and shingling on the roof of the structure; (j) Installation of all cabinets and laminated coverings on cupboards; (k) All form work for the installation of base- ments and footings for basements; (1) All cutting and installation of steps and wooden bannisters. During the negotiations, Silver Bow and Butte Contrac- tors pointed out that section 3 would prevent their use of modular homes in the Butte area, and Respondent consistently maintained that it was not interested in boycotting any product, including modular homes, wheth- er union made or otherwise, but was only seeking to preserve the work historically and traditionally done by its member carpenters, employees of the contractor-members of Silver Bow and Butte Contractors. Respondent also made clear to Silver Bow and Butte Contractors that it had no pride of authorship, was not insisting upon any particular phraseology, and was willing to have any of its proposed provisions rewritten or modified by Silver Bow and Butte Contractors so long as the provision accom- plished Respondent's ultimate objective, the preservation of work previously and traditionally done by its members. Silver Bow and Butte Contractors rejected Respondent's UNITED BRO. OF CARPENTERS, LOC. # 112, AFL-CIO 207 work-preservation proposal and as a result on May 17 Respondent's members struck Silver Bow and Butte Contractors in support of their demand for such a work- preservation provision. Several additional negotiation meetings ensued without success, each of the parties maintaining the same position, i.e., Respondent that it wanted such a provision in order to preserve the work of its members, and Silver Bow and Butte Contractors contend- ing that such a provision would prevent their use of modular homes in the Butte area. Silver Bow and Butte Contractors also argued that such a provision might even prevent their use of certain prefabricated or precut items which by past practice the parties had employed. In reply Respondent stated that it was not its objective to roll back the clock or prevent the use of any such prefabricated or precut items which had been used under past practice, even though such use had resulted in the loss of work previously performed by the carpenters, but only to prevent further erosion of their members' unit work by the subcontracting of additional tasks currently and traditionally performed by the carpenters. Shortly before August 11 Respondent entered into a contract with Golden West Estates, a Montana corpora- tion not a member of Silver Bow or Butte Contractors, providing for the installation of partially completed modular or prebuilt homes in the Butte area, and containing a work-preservation subcontracting provision substantially similar to that proposed by Respondent on May 14 to Silver Bow and Butte Contractors. The modular homes to be installed by Golden West under that contract were nonunion and factory built, and constituted what amounted to the shell of a modular home, inasmuch as the manufacturer agreed not to perform the work tasks which under the contract work-preservation clause the parties agreed should not be subcontracted but left for perform- ance by Respondent's members on the building site, just as Respondent had proposed to Silver Bow and Butte Contractors. As a result of such contract on August 11 Respondent submitted to Silver Bow and Butte Contrac- tors a modified work-preservation proposal consisting of section 3(A) of article XXII modified to conform to the work-preservation provision agreed to between Respon- dent and Golden West Estates, and again including sections 1, 2, and 4 unchanged. The modified proposal eliminated the work tasks not to be subcontracted set forth in subsections (a), (b), (c), (f), and (h) of the original section 3 and added one additional work task not to be subcontracted: "(9) the placing and fastening of all components of the structure upon the foundation." In addition, subsections (d), (e), and (g) were liberalized by modification. Silver Bow and Butte Contractors rejected this proposal and the strike continued. On August 12 Silver Bow and Butte Contractors submitted a counterproposal modifying paragraph (B) of Respondent's proposed section 3 by the addition of a third subsection thereto reading: (B) Nothing herein shall apply to any structures in the following situations: . . . (3) If the exclusive right to control the type of structure erected at the site of construction rests with a person, firm, or corporation not a party to this agreement and who is not economically allied with and [sic] Employer signatory to this Agreement. Respondent rejected this counter- proposal, pointing out that it would tend to emasculate its objective of preserving the work traditionally performed by the carpenters, and the strike continued. After further negotiation meetings , on August 20 the parties entered into an agreement, consisting of a modifica- tion of their prior contract, containing an article XXII, sections 1 through 4, with section 3(A) thereof further liberalized and modified from Respondent's first two proposals. Section 3(A) of article XXII as entered into by the parties read as follows: 2 Section 3. (A) All of the following work shall be performed at the site of construction, alteration, or repairing of the building, structure or other work and shall not be subcontracted [off the job site, unless said work is done at the Employer's shop.] (1) All the [erection ] of the forms for basements and/or footings for the structures. [Nothing herein shall be construed to apply to pre-built forms which have, through past practice, been utilized by the Employers.] (2) The installation of [all exterior siding or finishing, or, in the alternative,] all wallboards and/or paneling. (3) The installation of all [exterior trim on the structure, or, in the alternative, all interior ] trim on the structure. (4) The installation of all interior doors on the structure. (5) The shingling of all roofs, whether wood, metal or composition material. (6) Installation of all cabinets and shelving. (7) The cutting and installation of all wooden stairs and/or bannisters. (8) The installation of all form work for steps and/or stoops. [Nothing herein shall preclude an Employer from installing form work for steps and/or stoops after any pre-built or pre-assembled structure has been placed and fastened upon the foundation, so long as said steps and/or stoops are not attached to that structure and so long as the Employer does not work on the structure itself.] (9) The placing and fastening of all components of the structure upon the foundation. The parties further agreed that neither waived any rights, legal or otherwise, during the pendency of any future proceedings before the Board or any court by the submission, rejection, or withdrawal of any of their proposals during the negotiations, and that they would abide by the terms of the contract during the pendency of any such proceedings . The foregoing contract is the agreement allegedly proscribed by Section 8(e) of the Act, and the foregoing proposals and strike by Respondent, plus its refusal of the counterproposal of Silver Bow and Butte Contractors, is the conduct allegedly proscribed by Section 8(b)(4)(i) and (ii)(A) of the Act, i.e., striking and 2 The bracketed portions represent the modifications of Respondent's prior proposal. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coercing persons engaged in commerce with an object to forcing them to enter into an agreement prohibited by Section 8(e). The record establishes, from the testimony of four representatives of modular home manufacturers , that such manufacturers could supply to the contractor-members of Silver Bow and Butte Contractors prebuilt or modular homes with the work delineated in section 3(A) left undone to be performed at the site of construction , although three of them testified that they would not be interested for economic reasons in furnishing such unfinished homes unless they received orders for substantial numbers thereof, which would economically justify altering their then manufacturing procedures to eliminate such work to permit it to be performed at the site of construction. On the other hand, the manufacturer of the prebuilt homes supplied Golden West Estates pursuant to its contract with Respondent testified that his concern could and did profitably supply such homes to the Butte market, and that their cost to the purchaser was approximately $ 1,000 less than a fully completed modular home. The record also established that fully completed modular homes cost approximately $500 to $ 1,000 less than a "stick-built" home, one constructed on the site in the traditional manner. C. Concluding Findings The complaint alleged that Respondent , by entering into and maintaining the aforesaid agreement with Silver Bow and Butte Contractors whereby they agreed to cease and refrain from handling, using, selling, transporting, and otherwise dealing in the products of other employers and to cease doing business with other persons, engaged in unfair labor practices proscribed by Section 8(e) of the Act; and that Respondent, by its strike, contract proposals, and rejection of the counterproposal of Silver Bow and Butte Contractors , engaged in, and induced individuals employed by persons engaged in commerce to engage in, a strike or a refusal to perform services, and threatened, coerced, and restrained persons engaged in commerce, each with an object of forcing Silver Bow and Butte Contractors to enter into an agreement prohibited by Section 8(e) as proscribed by Section 8(b)(4)(i ) and (ii)(A) of the Act. Section 8(e) provides, inter alia: (e) It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforceable and void: Provided, That nothing in this subsection (e) shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction , alteration, painting, or repair of a building, structure, or other work ... . Section 8(b)(4)(i) proscribes engaging in or inducing employees to engage in a strike or refusal to perform any services, and (ii) proscribes threatening , coercing, or restraining any person engaged in commerce , in either case with an object of: "(A) forcing or requiring any employer or self-employed person to join any labor or employer organization or to enter into any agreement which is prohibited by Section 8(e)." The position of the General Counsel and the Charging Parties throughout was that Respondent was engaging in a product boycott designed to prevent the use of modular homes by Silver Bow and Butte Contractors, while the position of Respondent throughout was that it was concerned only with the preservation of unit work traditionally and historically performed by its members, carpenter employees of the contractors, that its contract proposals and strike were designed only to achieve that objective, and that the admitted effect upon the use of modular homes by the contractors was only incidental to such work-preservation objective . The record establishes that the work tasks set forth in section 3(A) of article XXII of the contract entered into were unit work tasks of the type traditionally and historically performed by Respon- dent's members. It is also clear that the use by the contractor-members of Silver Bow and Butte Contractors of fully completed modular homes for installation at the site of construction would substantially eliminate most of the work traditionally performed by carpenters at such site. In addition to such work-preservation objective, Respon- dent also contends that section 3(A) of article XXII comes within the purview of the proviso to Section 8(e) permitting such agreements in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, as specifically provided in sections 1 and 2 of article XXII of the contract. Section 1 thereof provided that the parties elected to come under the proviso applicable to the construction industry contained in Section 8(e), and section 2 provided that sections 1 and 3 of said article relate solely to contracting or subcontracting of work to be done at the site of the construction. It must now be considered well settled that the proscriptions of Section 8(b)(4)(B) and 8(e) prohibit secondary objectives and do not encompass primary objectives or disputes, e.g., the preservation of work or union standards of employees vis-a-vis their own employer, the primary employer.3 In National Woodwork, 4 the Supreme Court, affirming the Board, in a case substantially similar to that herein , found that where the objective of such a contract, and of striking or other coercion of their own employer to obtain such a contract, is preservation of work traditionally performed by the employees, the activity is primary, i.e., that of the employees vis-a-vis their own employer, and thus is not proscribed by Section 8(e) or 8(b)(4)(B). The Court was construing a contract between carpenters and their employers , allegedly in violation of 3 National Woodwork Manufacturers ' Association v N L.R B., 386 U.S. 612 (1967); Houston Insulation Contractors' Association v. N L.R.B., 386 U.S 664 (1967), and Local 982, International Brotherhood of Teamsters (J. K Barker Trucking Co.), 181 NLRB No 67 (1970) 4 Fn 3, supra UNITED BRO. OF CARPENTERS, LOC. #112, AFL-CIO Section 8(e), under which the employers had agreed that the carpenters would not handle precut or premachined doors on the jobsite. The Court stated, inter alia: This Court accordingly refused to read §8(b)(4)(A) [now 8(b)(4)(B) ] to ban traditional primary strikes and picketing having an impact on neutral employers even though the activity fell within its sweeping terms .... Thus, however severe the impact of primary activity on neutral employers, it was not thereby transformed into activity with a secondary objective. (Citations omitted.) Although the language of §8(e) is sweeping, it closely tracks that of §8(bx4)(A), and just as the latter and its successor §8(bX4)(B) did not reach employees' activity to pressure their employer to preserve for themselves work traditionally done by them, §8(e) does not prohibit agreements made and maintained for that purpose. * * * However, provisos were added to §8(e) to preserve the status quo in the construction industry, and exempt the garment industry from the prohibitions of §§8(e) and 8(b)(4)(B). This action of the Congress is strong confirmation that Congress meant that both §§8(e) and 8(b)(4)(B) reach only secondary pressures .... Simi- larly, the construction industry proviso, which permits "hot cargo" agreements only for job-site work, would have the curious and unsupported result of allowing the construction worker to make agreements preserving his traditional tasks against job-site prefabrication and subcontracting, but not against nonjob-site prefabrica- tion and subcontracting. On the other hand, if the heart of §8(e) is construed to be directed only to secondary activities, the construction proviso becomes, as it was intended to be, a measure designed to allow agreements pertaining to certain secondary activities on the construction site because of the close community of interests there, but to ban secondary-objective agree- ments concerning nonjob-site work, in which respect the construction industry is no different from any other. The provisos are therefore substantial probative support that primary work preservation agreements were not to be within the ban of §8(e). * * * * Before we may say that Congress meant to strike from workers' hands the economic weapons tradition- ally used against their employers' efforts to abolish their jobs, that meaning should plainly appear. "[I]n this era of automation and onrushing technological change, no problems in the domestic economy are of greater concern than those involving job security and employment stability. Because of the potentially cruel impact upon the lives and fortunes of the working men and women of the Nation, these problems have understandably engaged the solicitous attention of government, of responsible private business, and particularly of organized labor." 209 The Woodwork Manufacturers Association and amici who support its position advance several reasons, grounded in economic and technological factors, why "will not handle" clauses should be invalid in all circumstances. Those arguments are addressed to the wrong branch of government. It may be "that the time has come for re-evaluation of the basic content of collective bargaining as contemplated by the federal legislation. But that is for Congress. Congress has demonstrated its capacity to adjust the Nation's labor legislation to what, in its legislative judgment, consti- tutes the statutory pattern appropriate to the develop- ing state of labor relations in the country ... . The determination whether the "will not handle" sentence of Rule 17 and its enforcement violated § 8(e) and §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 .... The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer vis-a-vis his own employees.. . . The finding of the Trial Examiner, adopted by the Board, was that the objective of the sentence was preservation of work traditionally per- formed by the job-site 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 §8(e). Similarly, the Union's maintenance of the provision was not a violation of §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 jobsite by members of the Union. This and other substantial evidence supported the finding that the conduct of the Union on the Frouge jobsite related solely to preservation of the traditional tasks of the job-site carpenters. The record establishes and I find that the work tasks set forth in section 3(A) of article XXII, to be performed at the site of the construction and not be subcontracted, constituted work currently, traditionally, and historically performed by Respondent's members, that Respondent's objective in seeking such contractual provisions and striking to obtain them was solely to preserve the work traditionally performed by its members, and that their effect upon the use by the contractor-members of modular homes, whether union built or otherwise, was purely incidental. Respondent's objective was further corroborat- ed by the fact that it entered into a contract with another contractor, permitting the use of nonunion factory built prefabricated homes, upon the condition that the work, substantially the same as that herein, traditionally per- formed by its members be reserved for them at the site of construction. The fact that Respondent was willing to modify its 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD original proposal to liberalize it in several respects, so long as its objective of work preservation was retained, demonstrated Respondent's good faith in seeking only work preservation as distinguished from tactical objectives elsewhere, including product boycotts. The fact that Respondent struck to secure its demands for a work- preservation provision not in violation of Section 8(e) does not constitute a violation of Section 8(b)(4)(i) or (ii)(A) of the Act. Patently, if a contract is one not proscribed by Section 8(e), striking to obtain such a contract does not fall within the provisions prohibiting striking or coercion with an object of requiring an employer to enter into a agreement prohibited by Section 8(e).5 As hereinabove found, the contract between the parties provided that section 3(A) related solely to contracting or subcontracting of work to be done at the site of the construction and that the parties had elected to come under the proviso to Section 8(e) applicable to the construction industry. If the work-preservation provisions were primary and not in violation of the body of Section 8(e), as hereinabove found, a fortiori such provisions would be valid under the proviso excepting agreements between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction. The contention that Respondent violated Section 8(b)(4)(i) and (ii)(A) by refusing to accede to Silver Bow's and Butte Contractors' counterproposal exempting from section 3(A) structures over which the contractor-members did not have the "right to control" is without merit. While the Board has held that, although refusal-to-handle types of contracts are not in violation of Section 8(e) because of primary work preservation, enforcing or attempting to enforce such contracts against employers who do not have the "right to control" the contractual work assignment because the use of a prefabricated product was specified by the owner or builder is a violation of Section 8(b)(4)(B) because of such lack of control,6 such a situation does not exist herein and would only when and if Respondent sought to enforce section 3(A) against a particular contractor who did not have the "right to control" the contractual work to be performed at the site of construc- tion because of such owner specifications. There is no evidence in the record that Respondent has sought to enforce section 3(A) of the contract under such circum- 5 Los Angeles Building and Construction Trades Council (Church's Fried Chicken, Inc), 183 NLRB No. 102 (1970). 6 Local 636, Plumbers and Pepefitters (Mechanical Contractors' Association of Detroit), 177 NLRB 189 (1969) 7 At least four courts of appeals have disagreed with the Board's right-to- control test under such circumstances. the First Circuit, the Third Circuit, the Eighth Circuit, and the D. C. Circuit stances. When and if Respondent does so, the legal rights of Silver Bow and Butte Contractors would be protected by the Board and such a provision is superfluous with respect to such rights. Moreover, by agreeing to such counterpro- posal, Respondent would have waived its legal right to seek Board and court interpretation of the contractual work- preservation provision vis-a-vis a contractor who did not have such "right to control," which as yet has not been passed upon by the Supreme Court,7 thereby also waiving a potentially substantial segment of traditional work which Respondent desired to preserve for its members. Clearly Respondent was not legally required to waive such rights merely because conduct which they might engage in in the future might ultimately be found to be in violation of the Act. A preponderance of the reliable, probative, and substan- tial evidence in the entire record convinces me, and I find, that Respondent, by the above-found requests or demands for contractual work-preservation provisions, by striking to secure such contract provisions, and by entering into a contract containing such provisions, engaged in primary activity which was not in violation of Section 8(e) or 8(b)(4)(i) or (ii)(A) of the Act as alleged in the complaint. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Silver Bow and Butte Contractors are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not, as alleged in the complaint, engaged in unfair labor practices proscribed by Section 8(e) or 8(b)(4)(i) or (ii)(A) of the Act. Upon the foregoing findings of fact, conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 8 ORDER IT IS HEREBY ORDERED that the complaint herein be, and it hereby is, dismissed in its entirety. 8 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes