Southern Calif. Pipe Trades Dist. Council 16

698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southern California Pipe Trades District Council No. 16 of the United Association: and United Associa- tion of Journeymen and Apprentices of the Plumb- ing and Pipefitting Industry of the United States and Canada, Local No. 494 and Associated General Contractors of California, Inc. Southern California Pipe Trades District Council No.. 16 of the United Association: and United Associa- tion of Journeymen and Apprentices of the Plumping and Pipefitting Industry of the United States and Canada, Local No. 494 and Associated General Contractors of California, Inc. and Plumb- ing-Heating and Piping Employers Council of Southern California, Inc., Party to the Contract. Cases 21-CC-1377 and 21-CE-113 December 4, 1973 DECISION AND ORDER On January 2, 1973, Administrative Law Judge James T. Rasbury issued the attached Decision in this proceeding. Thereafter, the General Counsel, the Respondents, and the Charging Party filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its 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 but only to the extent consistent with our Decision here. The complaint alleges and the Administrative Law Judge found that the Respondents violated Section 8(b)(4)(ii)(B) and Section 8(e) of the Act. We believe that the particular facts of the case require the contrary result. National Medical Enterprises, Inc., was the owner- builder of a hospital in the Lakewood, California, area. It engaged Stolte, Inc., a member of the Charging Party association, as the general contractor for construction of the hospital. The contract with Stolte provided, inter alia, that certain prepiped stainless steel, surgical scrub sinks, purchased and owned by National, be installed. These sinks were manufactured by Market Forge, at an east coast location, where its employees were represented by Steelworkers Union. Stolte subcontracted all plumb- ing construction work, which included the scrub sink installation, to Robert J. Ohland, Inc. Ohland was a member of the Southern California plumbers associ- ation which had at times here material a bargaining 1 The P.I.P.E. Specification Guide is a publication prepared by the Technical Division of the Plumbing Industry Progress & Education Fund agreement with Respondent Plumbers District Coun- cil 16 of which Respondent Local 494 is a member. The issues in this case concern the installation by Ohland of the prepiped scrub sinks at the hospital and the application to Ohland with respect to such installation of certain paragraphs of the Plumbing Association-Plumbing Council contract. Paragraphs 13, 82, and 86 only of that contract are applicable here and provide in relevant part as follows: (1) Paragraph 13 states that the Employer agrees that all work covered in the P.I.P.E.t Specification Guide shall be performed by the Employer under the terms and conditions of the agreement and that in case any fabrication or installation work has been, is being, or will be performed by anyone other than employees working for Employers under the provi- sions of the agreement then the Employer "agrees to pay the equivalent of wages and fringe benefits lost by employees covered by this agreement" as deter- mined by a joint management-labor board set up by the agreement into the Union's pension fund; (2) Paragraph 82 reads that "all pipe fabricated for specialty units . . . shall be fabricated and installed under terms of the agreement" and, finally, (3) Paragraph 86, an enforcement type provision, provides that if a union discovers work being done in violation of the agreement a written complaint shall be filed with the Joint Arbitration Board which shall then notify the employer of the complaint and instruct him to stop the work in question; the Joint Board shall then investigate and either notify the employer there is no violation or, if there is one, what corrective measures to take. However, if there is no Joint Board decision within 72 hours the employer can continue with the work while the Joint Board reaches its decision. Failure of an employer to comply with the provisions of section XV gives the Joint Board the right to require that the offending company fabricate all pipe for the job on the jobsite for a period of time determined by the Board or to make such other award against the employer as it deems appropriate. As for the scrub sinks, they are intended for use by surgeons and other hospital personnel for washing up where antiseptic cleanliness is necessary. Their primary requisites, in addition to the requirements of any other type sink, are apparently nonhand-operat- ed faucets and nonsplash design. They also have various mixing and temperature control valves. The new type sink involved in this proceeding is some- what more complex than the older style; that is, the roughly pre-1963 style. Unlike the old style sinks, the new arrive at the jobsite with the various valves and and which among other things specifies in great detail what is to be appropriately considered plumbing work. 207 NLRB No. 58 SOUTHERN CALIF. PIPE TRADES DIST. COUNCIL 16 699 their attendant piping already installed by factory personnel. The sole task then for the onsite plumber is simply to attach the new sink to the building water supply and drain. Compared to the installation of the old style sinks, new sinks installation represents a considerable loss of working time to the onsite plumber for it took about 4 hours to fabricate the pipes and valves and then install the old but only about an hour to put in a new sink. Nevertheless, savings on installation costs would not necessarily seem to be an important consideration in any decision to switch to new style sinks for they cost from two to five times as much as the old style. Turning now to the particular facts that gave rise to the charge in this proceeding: Ohland began the plumbing work on the hospital in February 1971 and continued that work without incident until March 1972 when installation of the scrub sinks began. On March 7 Robert Ohland, the company president, received a telegram stating: Your firm charged fabrication violation South Street Hospital, Long Beach by Local 494 involving piping and trim on medical scrub sinks. Pending investigation do not proceed with work in question. E.E. Schell, Secretary, Joint Arbitration Board Ohland had his employees stop installing the sinks. He then telephoned Mulvaney, a business represent- ative of Local 494, to see what might be done about the problem and was told the only solution would be to dismantle the piping on the sinks. Any other solution, Mulvaney added, would have to be worked out with the local's business manager, Geiger. There is no evidence Ohland ever talked to Geiger. On March 8 Ohland called Stolle for permission to disassemble the scrub sinks before installation. Permission was denied on the grounds that the sinks were furnished by and were the property of National. Then, about 3-1/2 workdays after having held up on the sinks. Ohland had his employees continue with their installation which was completed without further incident. In late April Ohland received a letter from the Joint Arbitration Board stating that on March 15 one of its subcommittees had investigated the alleged fabrication violation of the hospital site and that Ohland had been found in violation of paragraph 82 of the 'contract. The letter also stated that in consequence Ohland had been assessed $557.76 "payable to the S. Calif. Pipe Trades Retirement Fund ...." Ohland paid the assessment and finished up his plumbing work at the hospital in June. Thus we have here a situation in which the Respondents proceeded against Ohland under the provisions of their plumbing industry bargaining agreement for an alleged violation of the fabrication clause; i.e., paragraph 82 of that agreement. There is no evidence whatsoever that Respondents took any "extra-contractual" action involving, for example, threats to strike or picket against Ohland because of his commitment to install and his actual installation of the prepiped scrub sinks. It is also clear that the conclusion Ohland had indeed violated the contract as charged was reached in the manner contemplated by the agreement, i.e., by a decision of Joint Board, and that the assessment leveled against Ohland was that envisioned by paragraph 13 of the agreement. Finally, the only disruption in Ohland's operations was the 3-day delay in sink installation, a temporary delay provided for in paragraph 82 of the agreement as an adjunct to the Joint Board's proceedings. There is no evidence at all that Respondents either peaceably or otherwise sought to prevent the installa- tion by Ohland of the Market Forge sinks. Conse- quently, the matter before us is simply one in which the Respondents have sought to enforce certain provisions of their bargaining agreement against a party to that agreement through the peaceful means provided by the agreement and by no other means. The Administrative Law Judge, nevertheless, found that Respondents' conduct violated Section 8(b)(4)(ii)(B) and that the contract provisions as applied violated Section 8(e).2 In reaching his results he concluded that the new style sinks were a new product; that is, that the Union's claims did not involve work preservation and that its actions were not protected by the construction industry proviso to Section 8(e) as claims under that proviso cannot be enforced by means proscribed under Section 8(bX4) of the Act. To support his conclusions it was, of course, necessary that he find, as indeed he did; that the 3-day stay on installation of the sinks and the assessment levied on Ohland were threats, coercion, or restraint aimed at forcing "any" person to cease handling certain products or to cease doing business with any other within the meaning of Section 8(b)(4)(ii)(B) of the Act. However, there is in our view a significant distinction between the use of strikes and picketing or threats of resort to economic weapons in the settlement of labor-management disputes and the use 2 The Administrative Law Judge included in his 8(e) finding par. 12 of Consequently, as the contract containing par. 12 was entered into in 1969 the contract. However, that paragraph on its face deals with events that and as there is no evidence of any attempt to enforce it within the 10(b) occur at the time a plumbing contractor starts a job Here that was in period-or for that matter at any other time-we find that its consideration February 1971 or more than a year before the charge in this case was filed. in this proceeding is barred by Sec. 10(b) of the Act. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of a contractually specified short-term stay of work on the disputed item, so as to avoid confrontation while peaceful means for resolving those disputes are invoked pursuant to a jointly agreed-upon procedure. And as the Board has previously held in effect, a contractual agreement, such as we have before us, for compensation of a breach of contract determined by contractually fair procedures is a reasonable and peaceful method of resolving a dispute.3 Consequent- ly, we find that the Union's use of its contract in its dispute here with Ohland did not constitute statutori- ly proscribed threats, coercion, or restraint.4 In view of all the foregoing, we find, contrary to the Administrative .Law Judge, that the Respondents in resorting to use of the applicable contractual provisions in the situation here did not violate Section 8(b)(4)(ii)(B) of the Act and that the contract as so applied did not violate Section 8(e). In so concluding, we do not reach the secondary- primary employer and work preservation issues considered by the Administrative Law Judge. Those matters do not become relevant until it is shown- whichis not the case here-that a respondent has had recourse to coercive tactics for those cease-handling or cease-doing-business ends proscribed by the Act. We have found, under the facts here, no such coercive tactics. We are, however, well aware of the possibility of abuse in this area, and that even the most innocent- appearing contractual provisions can be used to further unlawful, rather than lawful, ends, and can sometimes be invoked in such a way as to thinly disguise clearly coercive tactics. Consequently, our result here is closely hedged in by the facts before us, which show a careful and bona fide application of a contract which, in this case at least, appears to have been reasonably applied.5 Nowhere here is there revealed any attempt by the Respondent to harass or otherwise coerce Ohland or any other person for ends proscribed by the Act. In view of the foregoing, we shall dismiss the complaint. 3 United Association Pipe Fitters Local Union No. 455 (D. W. Hickey Co.), 154 NLRB 285, 291 and 167 NLRB 602, 604 (Pierre Aircon incident). We find no merit in the General Counsel's argument that the "Aircon" holding was reversed or at least severely limited by the Board's holding in Continental Air Filters Company, 196 NLRB 55. Continental involved essentially a union's requiring an employer to make a contribution to charity before it would permit its members to lay certain nonunion roofing material. The Board held this unilateral imposition of an assessment to be unlawful. It distinguished Continental from the "Aircon" incident essentially on the grounds that "Aircon" involved the fining of an employer by a contractually established Joint Board for breach of the contract; i.e., for installing a prepiped boiler. Clearly the present case is an "Aircon," not Continental, situation. 4 We do not equate the contractually specified 3-day suspension on the performance of disputed work as essentially equivalent to strike action. The suspension looks not for company compliance with a union's demands for its termination. Rather, it automatically expires as provided in the contract solely with the passage of time-3 days. We perceive a genuine difference ORDER It is hereby ordered that the complaint filed herein be, and it hereby is, dismissed. MEMBER KENNEDY, dissenting: I would adopt the findings and conclusions of the Administrative Law Judge that the Respondent Unions have violated Section 8(b)(4)(ii)(B) and, together with the Respondent Employer's Council, Section 8(e) of the Act. Contrary to my colleagues, I find that the Respondent Unions' conduct towards Ohland, the neutral plumbing contractor, was eco- nomic coercion and restraint, intended to effect a cessation of business with manufacturers of prepiped sinks, as proscribed by Section 8(b)(4)(ii)(B) of the, Act. Inasmuch as that conduct occurred in the Respondent Unions' application of its contract to work not historically and traditionally done by Respondent Unions, the contract as so applied violated Section 8(e) of the Act. In February 1971, the plumbing subcontractor, Robert J. Ohland, Inc., pursuant to its contract with the general contractor, Stolte, Inc., began plumbing work on the hospital owned and being built by National Medical Enterprises, Inc. Ohland's plumber employees were members of Local 494, a member of Respondent Plumbers District Council 16, which had a collective-bargaining agreement with the Southern California plumbers association of which Ohland was a member. In March 1972, Ohland commenced installation of the Market Forge prepiped sinks, known as Series SS lOC Scrub Stations, which had been purchased and were furnished to the job by National Medical Enterprises, the owner of the hospital, which had contracted with Stolte for their installation in the hospital. Stolte had thereafter subcontracted the installation of the scrub stations to Ohland-i.e., the simple connecting of the sinks' piping to the water and disposal lines in the building. At this juncture, the Unions stopped the work. between voluntary agreed upon suspensions of work-obviously designed to provide a "cooling off" period and prevent disruptive confrontations at the work place-and a strike or refusal to handle goods , instituted by a union in order to bring pressure to bear on the employer under threat of his being deprived of the services of his employees until such time as he yields to the union's demands. We also cannot construe as "threats" or "coercion" a voluntary agreement arrived at, in advance, to have alleged contractual violations determined in an agreed-upon forum which may assess damages for the violation according to a formula which has also been voluntarily agreed to, as does our dissenting colleague . These limited and carefully contractually defined measures to resolve disputes are quite different from the kind of draconian contractual provision giving a union the right to cancel all contracts with all locals in the United States which was involved in Ets-Hokin, referred to in the dissent. r 5 We note specifically that the amount of damages arrived at by the Joint Board appears to have been directly and reasonably related to wages lost by the employees, and clearly were not the kind of "extensive punitive L damages" or "fine" of which our dissenting colleague speaks. SOUTHERN CALIF. PIPE TRADES DIST. COUNCIL 16 701 On March 7, the Unions admonished Ohland that it was violating the fabrication clause by installing National's scrub stations and ordered Ohland to cease handling the scrub stations. In so doing, the Unions were clearly implementing the fabrication clauses of the collective-bargaining agreement-sec- tion III, paragraph 13, and section XV, paragraphs 82 and 86.6 In the face of the Unions' charge, Ohland ceased handling the prepiped scrub stations. At this time, Local 494 told Ohland that the dispute could not be settled other than by dismantling the piping which would require the piping to be refabricated by Ohland's employees. Ohland requested from Stolte permission to disassemble the scrub stations before installation. Stolte denied the request because the stations were owned and furnished by National, the project owner. On March 13, Ohland once again began installing the scrub stations, without refabricating the piping. Because Ohland did so, the Joint Arbitration Board, established by the collective-bargaining agreement, and acting pursuant to section III, paragraph 13, and section XV, paragraphs 82 and 86 of the agreement, found Ohland to have violated the agreement by handling scrub stations with piping and trim "fabri- cated by other than employees covered by the collective-bargaining agreement." The Joint Board assessed Ohland the sum of $557.76, to be paid to the Pipe Trades Retirement Fund. Ohland paid the fine. The majority first finds that the Unions' applica- tion of "its contract in its dispute here with Ohland did not constitute statutorily proscribed threats, coercion, or restraint," apparently because the strike (or "the contractually specified 3-day suspension on the performance of disputed work" as they choose to call it) and the monetary assessment were contractu- ally provided for and were not unreasonable means of settling the dispute. However, threats, coercion, or restraint do not, chameleon-like, become statutorily permissible by camouflaging them in contract lan- guage. As the Court of Appeals for the Fifth Circuit said with respect to 8(b)(4)(ii)(B) coercion in Local 6 For the reasons stated by the majority , I would agree that considera- tion of par. 12 of sec. III is barred by Sec. 10(b) of the Act, in the circumstances of this case. 7 The Board, at in. 6, p. 842, of Ets-Hokin, quoted the following language of the Court of Appeals for the District of Columbia in Local No. 5, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Venneri Co.) v. N. L. R, B., 321 F.2d 366, 370: We realize that this conclusion may leave the union with a valid contractual provision and with no means of enforcing it other than in a civil suit. We also realize the difficulty the building crafts have with the secondary boycott provisions of the Labor Management Relations Act, but this court is not the forum in which to seek relief from what the union characterizes as "the shackles" of this statue. 8 My colleagues apparently regard "carefully contractually defined measures to resolve disputes" as sufficient to camouflage the statutory Union No. 48 of Sheet Metal Workers International Association v. The Hardy Corporation, 332 F.2d 682 at 686: We believe that the Congress used "coerce" in the section under consideration as a word of art, and that it means no more than non judicial acts of a compelling or restraining nature, applied by way of concerted self help consisting of a strike, picketing or other economic retaliation or pressure in a background of a labor dispute. [Emphasis supplied.] This language was quoted with approval and relied upon by the Board in , Ets-Hokin Corporation, 154 NLRB 839, where the Board held violative of Section 8(b)(4)(B) the subcontracting provision of a collec- tive-bargaining agreement, admittedly within the construction proviso to Section 8(e), which gave the union the power to cancel all contracts of the employer with all of the local unions in the United States if the employer violated the subcontracting clause of its collective-bargaining agreement with one local union. The Board reasoned that such a contract provision is not controlling, inasmuch as the Board does not administer the law of private contracts. The Board found, correctly in my view, that the termination clause involved a "form of economic pressure proscribed by Section 8(b)(4)(B) 117 Ibid at 843. In my view, therefore, the 3-1/2-day work stoppage was a form of economic pressure proscribed by Section 8(b)(4)(ii)(B). Characterizing the cessation of handling of a third person's products as a "contrac- tually specified 3-day suspension on the performance of disputed work" in no way affects the economic coercion and restraints involved. For the same reasons, i would also find that the $557.76 fine constituted coercion and restraint. Paragraph 86D of section XV involved herein states as follows: D. Failure to comply with the provisions of this Section of the Agreement shall give the Joint Arbitration Board the right to require the offend- ing Contractor to fabricate all material on the job issues in this case . Is not a 3-1 /2-day refusal to handle goods precisely that, regardless of its movation ? While the damages assessed may be pursuant to the collective-bargaining agreement , by what principle can it be said that an assessment of damages is not economic pressure, particularly when supported by the threat of much more severe penalties, if compliance is not given, or when the assessed person lacks any control whatsoever over the "suspended" work? But no, states the majority, since here the Employer voluntarily agreed, in advance, to contract language which permitted this conduct, although the issue of initial entry into the agreement has not been placed before us. And the majority seeks further solace in the hope that the conduct in this case is less disruptive than prolonged indeterminate jobsite strikes. The essential statutory issue remains, in my view, did this conduct constitute threats , coercion , or restraint? To me, it clearly does. And I do not agree that contract language shields this statutory issue from consideration by the Board. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD site, which is to be installed in the area where the violation occurred, for a period of time to be determined by the Joint Arbitration Board, and such other damages, or make any other award against the Employer which it may deem appropriate under the circumstances of the particular case. [Emphasis supplied.] In the face of the implied threat of such sweeping power to inflict extensive punitive damages and to disrupt an employer's normal work assignments and conduct of its business, an implied threat which underlay the assessment against Ohland, I find it not surprising that Ohland submitted to the pressure of the fine and paid it. The Board just recently held that such fines as were levied here, despite the fact that they were provided for in the collective-bargaining agreement, are coercive within the meaning of Section 8(b)(4)(ii)(B). International Union of Operat- ing Engineers, Local Union No. 12 (Acco Construction Equipment, Inc.), 204 NLRB No. 115. I would therefore find that the fine was unlawful. Sheet Metal Workers International Association, Local Union No. 223, AFL-CIO (Continental Air Filters Company), 196 NLRB 55.9 It is by now a well-settled principle of law that an asserted contractual right, whether substantive or procedural, is not a defense to conduct which falls within the proscription of Section 8(b)(4) of the Act. N. L. R. B. v. Local 1291, International Longshoremen's Association, AFL-CIO [Northern Metal Co.], 345 F.2d 4, 10-11 (C.A. 3, 1965), cert. denied 382 U.S. 891; N.L.R.B. v. Local 825, International Union of Operating Engineers, AFL-CIO [Nichols Electric Co.], 326 F.2d 213, 218 (C.A. 3, 1964); Douds v. International Longshoremen's Association, Ind [Abra- ham Kaplan], 242 F.2d 808, 812 (C.A. 2, 1957); N. L. R. B. v. Bangor Building Trades Council [Davison Constr. Co.], 278 F.2d 287 (C.A. 1, 1960). See also Local 1976, United Brotherhood of Carpenters and Joiners Of America, AFL [Sand Door & Plywood Co.] v. N.L.R.B., 357 U.S. 93, 105 (1958). It is also well established that threats of fines or imposition of a monetary penalty upon an employer in furtherance of a proscribed object, whether or not coupled with expressed or implied threat of a strike in the event of noncompliance, are as coercive as threats of a work stoppage and are proscribed by Section 8(b)(4) of the Act. Penello v. International Longshoremen's Associa- tion, Local 1248, AFL-CIO, 455 F.2d 942,943 (C.A. 4, 1971); International Longshoremen's Association, 9 In my view, United Association Pipe Fitters Local Union (No. 455 D.A.W Hickey Co.), supra, In. 3 of the majority opinion, is clearly distinguishable. The assessment in that case, not backed by any implied threat of imposition of extensive punitive damages, was imposed for the purpose of preserving unit work, a lawful primary objective Furthermore, to the extent that the decision rested upon grounds that the contract permitted such a fine, it is not in harmony with the body of the law on this Local 1248 (U.S. Naval Supply Center), 195 NLRB 273; International Union of Operating Engineers Local Union No. 12, supra; Sheet Metal Workers Interna- tional Association, supra; Local Union No. 223 Glaziers Local Union 1184, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO (Tennessee Glass Company, Incorporated), 164 NLRB 116; Orange Belt District Council of Painters #48, AFL-CIO (Calhoun Drywall Company), 153 NLRB 1196, 1200-01. See also N.L.R.B. v. International Brotherhood of Electrical Workers and its Local 769 [Ets-Hokin Corp.], 405 F.2d 159, 162 (C.A. 9, 1968), cert. denied 395 U.S. 921. My colleagues on the majority are now seeking to ignore the well-estab- lished principles. I am unable to join in that result. Turning to the second major area of my disagree- ment with the majority, I would find, as did the Administrative Law Judge, that the Respondent Unions' purpose was to coerce Ohland to put pressure on Stolte, and National, to cease doing business with the manufacturer of the scrub stations. The Board does not have to decide whether the Unions' primary dispute was with Stolte, the general contractor, or the owner of the project, National, since in any event Ohland was merely a secondary employer with no power to alter the nature of the work performed on the scrub sinks. Indeed, Stolte refused to permit Ohland to comply with the Unions' demands by dismantling the sinks' piping, on the ground that Stolte did not have the power to grant such permission because National owned and fur- nished the sinks. Therefore, I regard as clearly controlling our recent decision in Local Union No. 438, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (George Koch Sons, Inc.).10 Ohland was truly an "unoffending employer" and had no control over the situation in which it found itself. At the time that Ohland subcontracted for the work with Stolte, Stolte and the owner had entered into an agreement whereby Stolte would install the Market Forge scrub stations which the owner of the project itself bought and furnished. In these circumstances it is clear that Ohland was a secondary party in the dispute, and that the Unions' objective in coercing Ohland was to bring about a cessation of business with the manufacturer, Market Forge.11 The Respondent Unions here were not seeking to preserve unit work. I would adopt the Administrative point and I would not follow it. io 201 NLRB 59. ii Whether Ohland suffered or was likely to suffer economic loss is irrelevant to a determination of whether the test of "to threaten, coerce, or restrain" of Sec. 8(b)(4)(ii)(B) has been satisfied. N L.R B v. Fruit and Vegetable Packers & Warehousemen, Local 760 [Tree Fruits Labor Relations Committee, Inc.], 377 U.S. 58 (1964). SOUTHERN CALIF. PIPE TRADES DIST. COUNCIL 16 703 Law Judge's finding that the work in dispute had not been historically and traditionally performed by Respondents. The Market Forge surgical scrub stations were technological innovations, quite differ- ent from the old sinks, and Respondent Unions had not traditionally performed the work since the scrub stations' introduction in about 1963. The intended result of the Unions' coercion and restraint of unoffending subcontractors such as Ohland can only be to acquire the tasks now performed by employees of the manufacturer. That the Unions are weaving such a blanket over the jobsites in their jurisdictions is clear. In April 1972, Hansen Plumbing Company was fined $557.76, and in March 1972, Schilling, a plumbing contractor, was assessed a fine of $232.40, for the same reason as Ohland here was fined. Indeed, E.E. Schell, business manager of Respondent District Council since 1953 and secretary to the negotiating committee, testified that it was the Unions' hope or purpose, in negotiating paragraphs 12 and 13, that pressure would be applied to the general contractor to award all plumbing work to the plumbing contractor. Significant change in a secondary person's method of doing business is an objective proscribed by the "cease doing business" language of Section 8(b)(4)(ii)(B). N.L.R.B. v. Local 825, International Union of Operating Engineers, AFL-CIO, [Burns and Roe, Inc.] 400 U.S. 297 (1971). In this case, it involves National's ceasing to purchase, Stolte's ceasing to handle and Market Forge's ceasing to manufacture in its present manner, the modem surgical scrub stations. The majority's holding in this case will permit the Respondent Unions to continue to make the surgical scrub stations more costly to install and disruptive of work assignments, and will, albeit more subtly, discourage secondary persons from purchasing Market Forge's product. In regard to the majority's apparent conclusion that the parties' contract excuses 8(b)(4)(ii)(B) conduct, I would remind them of our decision in Local Union No. 438, United Association of Journey- men and Apprentices of the Plumbing and Pipe Fitting Industry, supra, where we said: I First, our decision here does not reach the nonstatutory issue of whether a contract breach occurred when Phillips undertook a contract in seeming conflict with the agreement with the Respondents to which Phillips was a signatory.25 By our decision here, we simply hold that the Respondents' actions were in violation of Section 8(b)(4)(B). If a contract breach occurred, Respon- dents' remedy may well lie in a civil suit for breach of contract,26 but the possibility that such an action might lie does not immunize the Respondents' actions at issue here from scrutiny under the National Labor Relations Act, which the Board is entrusted to administer. As the District of Columbia Circuit Court has stated "[R]egardless of the ligitimacy of the end sought by the union, it cannot engage in secondary pressure to obtain it." 27 [Fns. 26 and 27 omitted.] 25 We note in passing that Phillips was in fact adjudged in violation of that agreement by a conciliation committee composed of representatives of the Association and Local 438. Such a decision is, however, not binding on us here. Furthermore, in my view the majority's deferral to "the use of a contractually specified short-term stay of work on the disputed item, so as to avoid confronta- tion while peaceful means for resolving those disputes are invoked pursuant to a jointly agreed-upon proce- dure," is a sharp departure from existing Board law. Neither National, the owner, nor Market Forge, the manufacturer, are parties to such a procedure. We refused to defer to such a procedure in International Brotherhood of Boilermakers, Iron Ship Builders, Black- smiths, Forgers & Helpers, Local 92 (Bigge Drayage Company)- 12 For the foregoing reasons, I would find that Respondent Unions have violated Section 8(b)(4)(ii)(B) by engaging in a work stoppage and levying a fine upon a secondary employer. Also, since these acts were taken in applying section III, paragraph 13, and section XV, paragraphs 82 and 86, to work which was not historically and traditionally done by Respondent Unions, I would ' find these contractual provisions violative of Section 8(e). 12 197 NLRB 281, Chairman Miller, concurring, stated that "As an interpretation of the agreement , the award was a part thereof. Far from resolving an unfair labor practice issue, the determination gave rise to the unfair labor practice. In these circumstances the joint panel proceeding can in no sense be regarded as an alternative forum for resolving issues appropriate for Board determination." DECISION STATEMENT OF THE CASE JAMES T. RASBURY, Administrative Law Judge: This case, with all parties represented, was heard in Los Angeles, California, on September 13 and 14, 1972,1 on the consolidated complaint of the General Counsel and answer of the Respondent Unions. The complaint was issued on May 26, based upon charges filed on March 10. The complaint alleges, in substance, that Southern California Pipe Trades District Council No. 16 (herein Respondent District Council) and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local No. 494 (herein Respondent Local 494, and herein collectively called Respondent Unions), engaged in, and are engaged in, unfair labor practices affecting commerce 1 All dates hereinafter will be 1972, unless otherwise indicated. 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within the meaning of Section 8(e) of the Act, in that said Respondent Unions entered into, invoked, and gave effect to a contract, namely, the 1969-72 Plumbing-Heating and Piping Industry of Southern California Agreement, section III, paragraphs 12 and 13, and section XV, paragraph 86, whereby the Plumbing-Heating and Piping Employers Council (herein Employers Council), a party to the contract, on behalf of its employer-members, agreed to cease doing business with and from handling products manufactured by Market Forge and other persons. The complaint also alleges in substance that Respondent Unions threatened, coerced and restrained Robert J. Ohland, Inc., (herein Ohland), and other persons engaged in commerce where objects thereof were to force or require Ohland to cease doing business with Stolte, Inc. (herein Stolte), in order to compel Stolte to cease doing business with National Medical Enterprises, Inc. (herein National); or to force or require Ohland to cease handling products manufactured by other persons, including Market Forge, thereby violating Section 8(b)(4)(ii)(B) of the Act. Respon- dent Unions denied the commission of the unfair labor practices as alleged in the complaint. Extremely helpful briefs have been filed by all parties and have been carefully considered. Upon the entire record and my observation of the witnesses, I hereby make the following: FINDINGS OF FACT I. JURISDICTION Employers Council with its principal office and place of business at Los Angeles, California, is an association of employers engaged in business in the State of California as plumbing, heating, and piping contractors in the building and construction industry. Employers Council was organ- ized for the purpose of, inter alia, and engages in negotiating and entering into labor contracts on behalf of its employer-members with the collective-bargaining repre- sentative of their employees, including Respondent Un- ions, and in representing its employer-members in matters of labor disputes and grievances and in other phases of labor-management relations. In the course and conduct of their business operations described above, the employer- members of Employers Council which bargains collectively on a multiemployer basis through Employers Council in the aggregate, annually purchase and receive goods and materials valued in excess of $50,000 from points and places directly outside the State of California and furnish services valued in excess of $50,000 to customers located in the State of California, each of which, in turn, annually purchases and receives supplies valued in excess of $50,000 directly from suppliers located outside the State of California. Associated General Contractors of California, Inc. (herein AGC or Charging Party), a California corporation with an office and place of business at Los Angeles, 2 See appendix attached hereto , for the disputed contract language. 3 The section of the Act reads as follows (e) It shall be an unfair labor practice for any labor organization and any employer to enter into any contractor agreement , express or implied, whereby such employer ceases or refrains or agrees to cease or California, is an association of employers engaged in business in the State of California as general contractors in the building and construction industry. AGC was organ- ized for the purpose of, inter alia, and engages in, negotiating and entering into labor contracts on behalf of its employer-members with the collective-bargaining repre- sentatives of their employees, and in representing its employer-members in matters of labor disputes and grievances and in other phases of labor-management relations. Stolte is now and has been at all times material herein an employer-member of AGC. In the course and conduct of their business operations as herein described, the employer-members of AGC, including Stolte, in the aggregate, annually purchase and receive goods and materials valued in excess of $50,000 from points and places directly outside the State of California, and furnish services valued in excess of $50,000 to customers located in the State of California, each of which, in turn, annually purchases and receives supplies valued in excess of $50,000 directly from suppliers located outside, the State of California. Ohland is now, and has been at all times material herein, a corporation engaged in business as a plumbing, heating, and piping contractor in the building and construction industry in Southern California. Ohland is now and has been at all times material herein, an employer-member of Employers Council. The parties have stipulated and I herewith find that the Employers Council and Ohland are, and each of them is, and have been at all times material herein, employers engaged in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7) and Section 8(e) of the Act. The parties have agreed and I herewith find that Stolte and Ohland are now, and each of them is, and at all times material herein have been, persons engaged in commerce or in an industry affecting commerce within the meaning of Section 8(b)(4)(ii)(B) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Respondent District Council is comprised of 17 affiliated local unions, including Respondent Local 494, whose geographical jurisdictions are all located in Southern California in the area between San Luis Obispo County and the Mexican border. The parties have agreed and I herewith find that Respondent Unions are, and each of them is, a labor organization within the meaning of Section 2(5) and 8(e) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues 1. Are portions2 of the collective-bargaining agreement entered into between Respondent Unions and the Employ- ers Council violative of Section 8(e) 3 of the Act under the Board's "Right to Control" doctrine because the thrust of these contract provisions is secondary in nature? 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 SOUTHERN CALIF. PIPE TRADES DIST. COUNCIL 16 705 2. Is the contract language, as interpreted and enforced by Respondent Unions, designed to capture new work, or to preserve work for bargaining unit employees? 3. Is the invoking of a fine upon an employer-member of the Employers Council pursuant to the provisions of paragraph 86 of the collective-bargaining agreement4__ because the employer did not comply with the alleged unlawful provisions of the agreement, violative of Section 8(b)(4)(ii)(B) of the Act?5 B. The Facts In June, 1971, Stolte-the general contractor-entered into a construction agreement with National for the construction of a hospital in Lakewood, California, sometimes referred to herein as South Street Hospital. Stolte was required under terms of the contract to install, or have installed, certain prepiped stainless steel surgical scrub sinks which were purchased and furnished by National, the owner-builder of the hospital In February 1971,6 Ohland entered into an agreement with Stolte for the plumbing construction work to be performed at the aforementioned hospital wherein Ohland was required to install certain prepiped stainless steel surgical scrub sinks to be furnished by National. Mr. Robert J. Ohland testified that his employee plumbers performed work from February 1971 until June 1972 or 10,582 hours of work at the Lakewood Hospital, which included some 9 or 10 hours of work to install eight or nine Market Forge surgical scrub sinks. Mr. Ohland testified that he received the information contained in a telegram (G.C. Exh. 6), by telephone on March 7. (The exhibit shows a date stamp of March 9, but this was the confirmation copy that was delivered by mail.) 7 Shortly thereafter Mr. Ohland issued instructions to the men on the job to discontinue installing (plumbing) the surgical sinks. Mr. Ohland then called Mulvaney of Local 494 who advised that the only way to settle the dispute was to dismantle the piping on the units. Mulvaney told Mr. Ohland that any other settlement would have to be taken up with Mr. Geiger, business manager of Local 494. There is no indication in the record that Mr. Ohland ever talked subsection (e) shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work: Provided further, That for the purposes of this subsection (e) and section 8(b)(4)(B) the terms "any employer", "any person engaged in commerce or in industry affecting commerce", and "any person" when used in relation to the terms "any other producer, processor, or manufacturer", "any other employer", or "any other person" shall not include persons in the relation of a jobber, manufacturer, contractor, or subcontractor working on the goods or premises of the jobber or manufacturer or performing parts of an integrated process of production in the apparel and clothing industry Provided further, That nothing in this Act shall prohibit the enforce- ment of any agreement which is within the foregoing exception. 4 See 'Appendix. 5 This section of the Act reads as follows: 8(b)(4) It shall be an unfair labor practice for a labor organization or its agents .. . (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:... . to Geiger, but on March 13, which was the following Monday, the installation of the surgical sinks was contin- ued until finished without further incident. Thereafter Mr. Ohland was advised by letter dated April 21 that the subcommittee of the joint arbitration board had visited the job, the South Street Hospital, on March 15 at 2:45 p.m. in connection with the charged fabrication violation. (See Resp. Exh. 1). The letter also advised Ohland was found to be in violation of section XV, paragraph 82, and assessed the sum of $557.76 to be paid to the Pipe Trades retirement fund. Mr. Ohland never saw anyone making an investiga- tion, nor was he advised by anyone on the job that an investigation had been made and there were no further telephone conversations with the Union about the matter. The fine was paid. There was testimony from George J. Sweitzer, who is Regional Manager of the American Sterilizer Company, a manufacturer of an automatic surgical scrub sink in competition to Market Forge, that the modem stainless steel surgical scrub station is substantially a different product than the old porcelain scrub sinks. (See G.C. Exh. 7). The Uni-Matic I was introduced in either 1963 or 1964 and the Uni-Matic lI was introduced about 1967-the major change on the two models being appearance. Sweitzer said somewhere between 100 and 200 American Sterilizer Surgical Scrub Units had been installed in Southern California hospitals. He testified that the surgical scrub sinks are shipped as a unit and it is only necessary to connect the gooseneck spout, the waste line, and the hot and cold service lines. Otherwise all the piping and fabrication work has been completed and tested at the factory. During the past 1 year and 8 months since Sweitzer has been in Southern California he has no knowledge of any labor difficulties or problems surround- ing the installation of the surgical scrub sinks. James Reid, manager of the Equipment Division of Market Forge testified as follows- The Company's surgical scrub sinks have been marketed since 1967. Company records indicate there have been 44 scrub stations or sinks sold in Southern California. Witness stated that he would only have knowledge of labor disputes concerning the installation of the scrub sinks if such disputes were not settled at the jobsite. The only labor dispute concerning the (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, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of Section 9: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing; . . . 6 These dates were taken from the all party'stipulation. See G.C. Exh 2. If there is an error-the date of the general contractor's and the subcontractor's agreement appears to predate the general contractor's agreement with the owner-builder-it is of no material significance in the determination of the merits of this dispute. r The telegram read as follows: YOUR FIRM CHARGED FABRICATION VIOLATION SOUTH STREET HOSPITAL LONG BEACH BY LOCAL 494 INVOLVING PIPING AND TRIM ON MEDICAL SCRUB SINKS PENDING INVESTIGATION DO NOT PROCEED WITH WORK IN QUESTION. E. E. SCHELL, SECRETARY, JOINT ARBITRATION BOARD 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD installation of the Market Forge scrub sinks of which the witness has any knowledge or information is the current matter. Witness testified that the Market Forge scrub sink was specifically and scientifically designed to reduce splash, to control flow and temperature of water, to provide illumination, and to provide an arrangement whereby a surgical team comprised of two, three, or four people could all scrub under ideal conditions and still be close enough to engage in conversation. Reid testified that their "on-off" valve is manufactured to their specifications by a valve firm and is not available on the open market. A special jig has been designed and built which is used in their factory to properly attach the valve to the framework to provide proper alignment and location. The jig is not available on the open market, having been built by Market Forge for their own use. The Market Forge surgical scrub sink is shipped to the jobsite ready for installation. The cost of the sink varies from two to five times the cost of the old type sink (see G.C. Exh. 5). Under cross-examination, Reid acknowl- edged that there could have been labor disputes at a number of jobs that might not have been brought to his attention; that the old type scrub sinks have a valve to control the volume of water and temperature; and that like the old units the function of the new surgical stainless steel scrub sinks is to provide a surgical scrub for the physicians or nurses prior to an operation. Robert L. Johnson stated that he is a vice president with Stolte and has been employed by them for 14 years. His employer has been the general contractor on 20 to 25 hospitals since 1967-including five of those shown on General Counsel's Exhibit 9-and to the best of his knowledge and belief his company has never used anyone but union subcontractors for plumbing work. Johnson was unaware of any nonunion plumbing contractors that had ever done plumbing work at hospitals in Southern California. Johnson stated that he received a phone call from Ohland on or about March 8 asking for permission to disassemble five or six Market Forge scrub sinks. The request was denied by Johnson because the sinks had been furnished and were the property of the owner-builder. It was stipulated by the parties that Hansen Plumbing Company was charged by Plumbers Local 398 with a violation of the fabrication clause of the pertinent contract in April 1972; that the charge concerned the installation of surgical scrub -sinks and that the joint arbitration board assessed damages in the sum of $557.76 which was paid. A similar charge was filed by Plumbers Local 494 against plumbing contractor Schilling, on March 2 resulting in a $232.40 assessment which was paid. James H. Graham testified that he was president and business agent for Plumbers Local 114 in Santa Barbara, California. He said it was necessary for him and his foreman to disassemble and then reassemble the Uni- Matic II surgical scrub sink, manufactured by American Sterilizer Company, in December 1971 on an occasion when they were installing said sinks in the General 9 Schell did not actually appear before the court in this proceeding. Mr Schell testified in a companion or related case (Kinutock Division, Tridair Industries, Incorporated 207 NLRB No. 59) involving the same Respondent Hospital at Santa Barbara. The disassembling of these sinks (witness said there were two, three-station sinks and two, two-station units) was necessary because the sinks were to be located against a structural wall. It was not possible to install the normal rough-in plumbing and in order to plumb the sinks properly it "was necessary to disassemble them and make them fit." Graham testified he encountered no particular difficulties in doing the work and he didn't ask permission from anyone because his job was to install the sinks. Mr. E. E. Schell testified8 that he is the business manager of the Respondent District Council and has been since 1953. His responsibilities are administrative and involve the coordination of the practices and policies of the member locals and the district council in order to maintain uniformity within the council. Schell is not on the negotiating committee, but he sits in as the secretary and takes the union notes. The master contract (G.C. Exh. 3) is negotiated with the Employers Council. Witness testified the Joint Arbitration Board is composed of 10 people-five selected by the Employers Council and five by the Respondent District Council and he serves as a nonmem- ber secretary. There is a subcommittee composed of two people-one from each party to the contract-that generally investigates and determines complaints from locals regarding alleged fabrication violations of the contract. The determination of the subcommittee is then appealable to the Joint Board. Schell testified to the gradual reduction and shrinkage of work normally performed by the plumbers which led to the Union's insistence on "work preservation" language in the 1969-72 agreement. The language of paragraph 12 and 13 was only obtained after an 81-day strike. Schell testified that he knows of no new construction plumbing contractor that is not bound by the union contract. He estimated that 99 and 9/10 percent of all new plumbing contracting work is done pursuant to the collective-bargaining agreement. Schell said that it was the Union's hope or purpose in negotiating paragraphs 12 and 13, that pressure would be applied to the general contractor to award all the plumbing work to the plumbing contractor. Analysis On these facts, and the pertinent and relevant portions are not in dispute, Ohland had no right of control over the surgical scrub sinks. The sinks were purchased by National, the owner-builder. Ohland's plumbing subcon- tract with Stolte called for installing the sinks. There was no way Ohland could satisfy the Respondents except by either allowing his employees to disassemble and rebuild the sinks-which the owner-builder and general contractor would not permit-or in paying a fine equivalent in money to wages lost by Ohland's employees because some alleged "plumbing" work had been performed on the sinks by employees not covered under the Respondents' labor agreement. According to Reid, whom I credit, the Market Forge surgical scrub sink is shipped ready to install with all fabrication and piping work performed at the factory on July 5 and 7, 1972, and the parties agreed to submit the transcript of his testunony taken from the Kzmstock case as A. Exh. I SOUTHERN CALIF. PIPE TRADES DIST. COUNCIL 16 707 where the employees are represented by the United Steel Workers of America. Applying the Board's "right-to-control" test as set forth in numerous cases,9 and with due deference and respect for those courts that have disagreed with the Board, it is clear that Ohland-who was forced to pay the fine-was a secondary employer and that the primary dispute was with Stolte because National preferred and specifieda particu- lar "pre-piped, fully fabricated at the factory, modem surgical scrub sink," in place of an inferior product that might have provided a very few additional hours of work at the jobsite for members of the Respondent Unions. The Board deems as neutral persons those employers who are powerless to comply with the demands of the union. As indicated above, Ohland was powerless to provide the work. Respondents argue that their course of conduct is not proscribed by the Act because their labor agreement with OJiland only related to construction or fabrication work to be done at the jobsite and thus is exempt by the proviso to Section 8(e). However, "both the Board and courts have said that although a contract within the construction industry proviso to Section 8(e) is exempt from the operation of that section, it may be enforced only through lawsuits and not by threats, coercion, or restraint pro- scribed by Section 8(b)(4)(B). The term `coercion' as used means `nonjudicial acts of a compelling or restraining nature, applied by way of concerted self-help consisting of a strike, picketing or other economic retaliation or pressure in a background of a labor dispute.' " 10 The telegram Ohland received from Schell directed that work on the sinks be discontinued pending investigation. The work was discontinued. A fine was assessed and paid. Section XV, paragraph 86, refers to continuing the work if the joint arbitration board has not acted within 72 hours from the time the complaint is received. A 72-hour shutdown of a job would be a very severe economic retaliation. Accordingly, I find that both by the language contained in section III, paragraphs 12 and 13, and section XV, paragraph 86 of the union agreement (G.C. Exh. 3) and the course of conduct pursued by the Respondents, that a form of economic pressure proscribed by Section 8(b)(4)(B) is involved and that it exceeded the limited exemption of the construction industry proviso to Section 8(e).11 However, Respondent argues most persuasively that the language contained in section III, paragraphs 12 and 13 and section XV are lawful primary work preservation clauses designed to preserve and/or reacquire work that 9 International Longshoremen's Association, Local 1694 (Bd of Harbor Commissioners), 137 NLRB 1178, enfd. 331 F.2d 712 (C.A. 3, 1964); Ohio Valley Carpenters District Council (Cardinal Industries), 144 NLRB 91, enfd. 339 F.2d 142 (C.A. 6, 1964); Local 636, United Association of Journeymen and Apprentices of the Plumbing and Ptpefitting Industry (Mechanical Contractors Association, 177 NLRB 189, enforcement dented 430 F.2d 906 (C.A.D.C., 1970), supp. dec. 189 NLRB 661; Local 742, United Brotherhood of Carpenters and Joiners of America (J L Simmons Company), 178 NLRB 351, remanded 444 F.2d 895 (C.A.D C., 1971), International Association of Heat and -Frost Insulators and Asbestos Workers, Local 12 (Westinghouse Electric Company), 193 NLRB 40, enfd. 80 LRRM 2028 (CA. 2, 1972). 10 Ets-Hokin Corporation, 154 NLRB 839 at 842 (fns. omitted). 11 See N.L.R.B. v. International Brotherhood of Electrical Workers AFL-CIO and Local 769 [Ets-Hokin Corp], 405 F.2d 159 (1968), wherein has traditionally been performed by plumbers and as such, any coercive activity directed against Ohland is lawful.12 I cannot agree.13 While the language contained in para- graphs 13 and the fabrication and installation paragraphs of section XV relating to the Employer's work commitment might in some instances be work preservation, under the circumstances of this case, the language and its enforce- ment resulted in the boycott of a product the Respondents were not capable of producing on the jobsite. The testimony of Graham relating to his abilities to disassemble and then reassemble a similar product made by a competitor is hardly proof to the contrary. While it is easy to say the function of the older sinks was the same as the function of the new product, and thus this is work historically and traditionally performed by Respondents, this argument is misleading. It might be said that the function of a horse and buggy was the same as today's automobile, but , one can hardly say they are the same product.14 I find the Market Forge surgical scrub sink to be a new and different product from the older type scrub sinks such as that illustrated by General Counsel's Exhibit 5. Respondents' course of conduct in the instant case resulted in a reaching out to monopolize all the manufacturing job tasks. Respondents' conduct, if allowed to go unrestrained, would seriously affect labor conditions elsewhere, and, while readily distinguishable, this situation has many of the swordlike qualities of the Allen Bradley case.15 I find the language contained in section III, paragraphs 12 and 13, and section XV, as applied and enforced under the facts of this case to be violative of Section 8(e) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES The activities of Respondents as set forth in section III, above, occurring in connection with the operations of Employers, described in section I, above, have a close, intimate, and substantial relation to trade, traffic and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. THE'REMEDY Having found Respondents, and each of them, to have engaged in certain unfair- labor practices within the meaning of Section 8(e) and Section 8(b)(4)(ii)(B) of the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. the Ninth Circuit affirmed the Board's holding in Ets-Hokin, supra, cert. denied 395 U.S. 921. 12 National Woodwork Manufacturers Association v. N.L.R B , 386 U.S. 612 (1967). 13 See Local 636, United Association of Journeymen and Apprentices of the U S and Canada, AFL-CIO, 177 NLRB 189 ; Sheet Metal Workers International Association, Local 28, AFL-CIO (Diesel Construction), 196 NLRB 1065. 14 There are undoubtedly many examples that could be given to illustrate the fallacy of Respondents' "same function" argument, but perhaps the most graphic would be today 's modem toilet compared to yesterday's outhouse. 15 Allen Bradley Co. v. Local 3, Electrical Workers, 325 U.S. 797. 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent District Council and Respondent Local 494 are, and each of them is, a labor organization within the meaning of Section 2(5) of the Act. 2. Each of the persons described in Section I above of this Decision is an employer within the meaning of Section 2(2), and has engaged in commerce as defined in Section 2(6) and (7) of the Act. 3. By fining Ohland, who installed the Market Forge surgical scrub sinks, the Respondents, and each of them, did coerce and restrain a person engaged in commerce with an object of forcing or requiring Stolte, the general contractor, to force or require National to cease doing business with Market Forge, thereby violating Section 8(b)(4)(ii)(B) of the Act. 4. By the interpretation and application of section III, paragraphs 12, 13, and section XV of the labor agreement between Respondent District Council, on behalf of Respondent Local 494, and the Employers Council, Respondents, and each of them, have entered into a contract or agreement prohibited by Section 8(e) of the Act. Upon the foregoing findings of fact, conclusions of law and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: [Recommended Order omitted from publication.) APPENDIX Section III, paragraphs 12 and 13 of the contract between Respondent Unions and the Employers Council read as follows: that all work covered under "Scope of Work" in the P.I.P.E. Specification Guide (Revised Edition), except those items excluded and listed below, including but not limited to all fabrication and installation work, shall be performed by the Employer under the terms and conditions of this Agreement. In the event any fabrication and/or installation work mentioned in this Paragraph 13 has been performed ; is being performed, or will be performed by anyone other than employees working for Employers in accordance with the provi- sions of this Agreement, the Employer agrees to pay the equivalent of wages and fringe benefits lost by employees covered by this Agreement, as determined by the Joint Arbitration Board or its Subcommittee, into the Retirement Trust Fund of the Plumbing- Heating and Piping Industry of Southern California within ten (10) days of date of posting of the decision of the Joint Arbitration Board. If two or more Contrac- tors are involved on such work, the Joint Arbitration Board shall decide which Contractor or Contractors are liable and the amount of liability. The Joint Arbitration Board shall determine the specified bid guide to be used in determining damages by March 1, 1970. If such determination is not made by March 1 , 1970, each party shall submit a guide to 'an impartial arbitrator who shall make the selection by April 1, 1970. Section XV, paragraph 82, reads: All pipe fabricated for speciality units, service facilities, or heating or air conditioning equipment, used in buildings, facilities or manufacturing establish- ments, shall be fabricated and installed under the terms of this agreement. 12. It is recognized by the parties hereto that it is mutually desirable to have all of the above-listed work performed by employees covered by this Agreement and to that end they will utilize their best efforts to see that this is done to the extent permissible by law. To further this aim of protecting present work and reclaiming work lost, the Contractor shall submit in writing to the Union having jurisdiction, prior to starting any job, the location of job where the contract is in excess of $20,000.00. This notice shall include information on any work or equipment covered by this Agreement which is not included in the contract to the best of the Contractor's knowledge and belief. In the event any of the work or equipment covered by this Agreement has not been awarded to a signatory Contractor, a Contractor representative will accompa- ny a representative of the Union to take the matter up with the awarding authorities. The above mentioned representatives shall meet with the awarding authorities as soon as possible after receipt of the aforementioned notice from the Contrac- tor. The Union may refuse to permit employees on the job site until such meeting has been held but not to exceed a period of seven (7) working days after receipt of the aforementioned notice. 13. (Effective April 1 , 1970). The Employer agrees Section XV, paragraph 86, reads: 86. Whenever ' a Union Representative discovers work being performed which he considers to be in violation of this Agreement, the-procedure must be as follows: A. The Business Manager shall file a complaint in writing, or by telephone with confirmation in writing within forty-eight (48) hours, with the Joint Arbitration Board by notifying the Employers Council and District Council No. 16 that said Contractor is violating this Section. Complaints arising under the Independent Plumbing-Heating and Piping Agreement will be handled by the Joint Arbitration Board or its Subcom- mittee. B. The Secretary of the Joint Arbitration Board shall immediately send a telegram to the Contractor concerned advising him that such a complaint has been filed and instructing him, pending investigation, not to proceed with the work in question. C. The Joint Arbitration Board, or a Joint Sub- committee thereof, shall immediately investigate said complaint. In the event the Board, or the Subcommit- tee, finds that the work in question is or is not in violation of this Section , they shall so inform the SOUTHERN CALIF. PIPE TRADES DIST. COUNCIL 16 709 Contractor and the complaining` Union, and shall determine the corrective measures that must be taken by the Contractor prior to the job continuing if the contract has been- violated. In the event the Joint Subcommittee or the Board are unable to agree within seventy-two (72) hours from the time the complaint is received, the work in question shall be permitted to proceed pending-a final decision through the procedure set forth in this Agreement. Said decision shall be final and binding on all parties hereto if made by the Joint Arbitration Board. Either party shall have the right to appeal the decision of the Joint Subcommittee provided such appeal is filed in writing, certified mail, return receipt requested, within, five (5) days after receipt of notification of the decision of the Joint Subcommittee. If so ordered by the Joint Subcommittee, the work in question must be stopped pending the decision of the Joint Arbitration Board on an appeal from such Order, in order to mitigate and prevent any increased damages being assessed against the Employer if the appeal is not sustained. and to further prevent any irreparable harm and damage that may be suffered by employees covered by this Agreement due to the violation by the Contractor of this Section. D. Failure to comply with the provisions of this Section of the Agreement shall give the Joint Arbitra- tion Board the right to require the offending Contractor to fabricate all material on the job site, which is to be installed in the area where the violation occurred, for a period of time to be determined by the Joint Arbitra- tion Board, and such other damages, or make any other award against the Employer which it may deem appropriate under the circumstances of the particular case.