Southern California Pipe Trades

SOUTHERN CALIFORNIA PIPE TRADES Southern California Pipe Trades District Council No. 16; Plumbers & Steamfitters Local No. 582 and Kimstock Division, Tridair Industries, Inc. Southern California Pipe Trades District Council No. 16; Plumbers and Pipefitters Local No. 230 and Kimstock Division, Tridair Industries, Inc. Southern California Pipe Trades District Council No. 16; Plumbers & Steamfitters Local No. 582; Plumbing-Heating and Piping Employers Council of Southern California, Inc. and Kimstock Divi- sion, Tridair Industries, Inc. Southern California Pipe Trades District Council No. 16; Plumbers and Pipefitters Local No. 230; Plumbing-Heating and Piping Employers Council of Southern California, Inc. and Kimstock Divi- sion, Tridair Industries, Inc. Cases 21-CC-1358, -2, -3, -4, and -5, 21-CC-1360,21-CE-106, and 21-CE-108 December 5, 1973 DECISION AND ORDER On January 24, 1973, Administrative Law Judge Irving Rogosin issued the attached Decision in this proceeding. Thereafter, Respondent Unions jointly filed exceptions and a supporting brief, and the General Counsel filed limited exceptions and a supporting brief. The General Counsel also filed an answering brief. Respondent Employers Council filed no exceptions. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings; findings,' and conclusions of the Administrative Law Judge only to the extent consistent with our Decision herein. 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. However, we find that the disposition of this case is governed by our recent decision in Southern California Pipe Trades District Council No. 16 of the United Associa- tion, et al. (Associated General Contractors of Califor- nia, Inc.), 207 NLRB No. 58, which requires a contrary result, with but one exception. The issues in this case concern the installation by Kimstock, at certain jobsites in Southern California, of fiberglass tubs and shower stalls it manufactured, ' The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have 711 and the application by Respondent Unions to plumbing subcontractors of certain paragraphs of their contract concerning such work. Paragraph 13 and Addendum No. 3 of that contract are involved here. Paragraph 13 provides that the plumbing subcontractor agrees that all work covered in the P.I.P.E.2 Specification Guide shall be performed by the employer under the terms and conditions of the contract and that in case any fabrication or installation work has been, is being, or will be performed by anyone other than employees working for an employer under the provisions of the contract, 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. Addendum No. 3, entitled "CARPENTER'S AND U. A. NATIONAL AGREEMENT," states that synthetic bathtubs and showers with finished walls attached are to be unloaded, uncrated, and handled to the point of installation by a composite crew of plumbers and carpenters; that plumbers are to set the synthetic tub and shower units over the plumbing rough-in; that carpenters are to anchor the fixture to the studs or walls, and that plumbers will drill the holes in the fixture and install the water and waste connections. Combination synthetic tubs and showers began to displace conventional bathtubs in Southern Califor- nia in late 1959. Until then bathtubs were made of steel or cast iron and were installed on the site by plumbers. The plumbers removed the tub from the delivery truck on site, carried and set it in place in the bathroom, and then installed the waste and overflow drains over holes previously drilled at the factory. The metal tub was not attached to the wall, and the plumbers did not set plaster or tile around the tub. When a shower was included, the plumbers connected the shower head to the tub valves, also installed by plumbers. In late 1959 Kimstock began manufacturing, selling, delivering, and installing complete fiberglass tub and shower units, either separately or in combination (walls attached), throughout Southern California. The drain and the overflow holes, and if requested by the customer, the diverter, and hot and cold water valve holes are drilled at the factory. The shower head and fill spout openings are usually drilled at the jobsite by Kimstock's installers. Since Kimstock carefully examined the record and find no basis for reversing his findings. Z The P.I.P.E. Specification Guide is a publication which among other things specifies in great detail what is to be appropriately considered plumbing work . Installation of tubs and showers, although covered in the specifications as work to be performed by plumbers, did not specifically cover synthetic or fiberglass units. 207 NLRB No. 59 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD began manufacturing these units, it has delivered and installed 90 percent of the units it has sold using its own employees. The remaining 10 percent were sold to customers such as mobile home manufacturers who do their own installation. The actual plumbing connections on the fiberglass units are still made by the plumbers, who are not employees of Kimstock but of plumbing contractors, and the performance of this work is not in issue here. The present dispute involves the distribution and installation of the fiberglass units, and the drilling of the holes on the site prior to the plumbing connec- tions. Under Kimstock's practice, the unit is deliv- ered to the jobsite by a truckdriver and swamper, both employed by it. These employees then unload the units on the site and carry them into each building on the project in close proximity to the bathroom. Kimstock's installers next place the unit in the bathroom and, because the unit is so large, they often must remove the studs, trimmers, and king studs. The installer pours casting plaster on the floor, and embeds the unit in the plaster. If the shower head and diverter valve holes have not been drilled at the factory, the installer will drill the required holes before setting the unit in the plaster. Then the installer levels and nails the unit into place, and bonds it to particle boards which are nailed to the studs. (The bonding process is not required in the installation of simple bathtubs.) The combination tub and shower units, with walls, constitute the largest part of Kimstock's sales. Metal tubs are installed much differently. The plumbers need only carry the metal tubs into the bathroom and deposit the tub. All required holes in the metal tub have been drilled in the factory. Metal tubs do not come with walls, and the plumbers do not bond or otherwise secure the tubs to the studs. Before the advent of fiberglass units, a combination of metal tub and shower unit required construction of a tile wall around the metal tub by a tilesetter or plasterer, but not by a plumber. Kimstock's drivers and installers have been repre- sented by a labor organization not here involved, Orange County District Council of Carpenters, Local Union 2665, pursuant to a Board certification in Case 21-RC-8294, and the applicable collective- bargaining agreement which was effective September 11, 1970, through July 31, 1973. Employees of other manufacturers of fiberglass units similar to those of Kimstock also have been generally represented by various local unions affiliated with United Brother- hood of Carpenters. The Administrative Law Judge found that the introduction of fiberglass tubs and showers into the housing market over the past 10 years has drastically reduced the work opportunities for plumbers. Before the advent of the synthetic units the plumbers performed the actual unloading and carrying of the old-style tubs into the housing units from the point of delivery by the driver. The Administrative Law Judge found that Respon- dent Unions had violated the secondary boycott provisions of the Act in three specific situations. First, about June 17, 1971, Interland Development Company, a general contractor, contracted with Bolle Mechanical Contractors, a plumbing contrac- tor and a member of Respondent Employers Coun- cil, that Bolle would perform the plumbing work at a jobsite at Mesa Verde East, Costa Mesa, California. Not included in this contract was the delivery and installation of fiberglass tubs and shower stalls, work which Interland awarded to Kimstock on August 2, 1971. Thereafter a dispute arose between Respon- dent Local 582, and Bolle, Interland, and Kimstock, as to whether Kimstock's installers or Local 582 plumbers were entitled to install the fiberglass units. At a joint meeting on October 6 the business manager of Local 582 told Bolle that he would refuse to supply plumbers to Bolle unless Local 582's demand for a composite crew was honored in delivery and installation of the Kimstock units. In addition, on October 20, at another joint meeting held to resolve the dispute, Local 582's business agent stated that, if Kimstock insisted on installing the fiberglass units, Kimstock's employees might as well be prepared to hook up the waste and overflows. We agree with the Administrative Law Judge that Local 582's statements were threats to withhold the services of its members from Bolle in order to exert pressure on neutral Bolle with the purpose of causing Interland to cease doing business with Kimstock. These threats were clearly in violation of Section 8(b)(4)(ii)(B) of the Act. Unlike Associated General Contractors of California, Inc., supra, where there was no evidence that the union took any "extra-contrac- tual" action such as threats to strike or picket to enforce its contract, here Local 582 did threaten Bolle with the extra-contractual action of a general strike. Clearly Bolle had no control over the contractual relationship between Interland and Kimstock, and therefore regardless of the legitimacy of Respondent Local 582's work preservation claim its coercive threat was not directed at the right person and was therefore unlawful. George Koch & Sons, Inc., 201 NLRB 59. The other two instances in which the Administra- tive Law Judge found that Respondent Unions had violated the Act were ones in which the Joint Arbitration Board, as provided in paragraph 13, assessed damages against two member plumbing subcontractors in 1971 in the amount of the wages and benefits lost by reason of their breach of SOUTHERN CALIFORNIA PIPE TRADES contract. In one case the assessment was $174.60, and in the other $960.30. The Joint Arbitration Board -found that in each case _the plumbing subcontractor had violated paragraph 13 by permit- ting nonunit employees to install either fiberglass shower stalls or fiberglass tub-shower units. In each case the Respondents proceeded against the contractors under paragraph 13 of their plumbing industry bargaining agreement and the installation clause; i.e., Addendum No. 3 of that agreement. There is no evidence at all that Respondent Unions sought to prevent the installation of the fiberglass units by Kimstock's employees. The conclusion that the plumbing contractors had breached their agree- ment with Respondent Unions was reached in the manner contemplated by the agreement by a decision of the Joint Board. And the Joint Board's assessment against the plumbing contractors for wages and benefits lost-was as set forth in para- graph 13 of the agreement. There was no disruption of the contractors' operations. Consequently, in these instances Respondents have merely sought by peace- ful means to enforce their bargaining agreement against employers party to that agreement. However, the Administrative Law Judge found that by these contractual assessments Respondent Unions violated Section 8(b)(4)(ii)(B) and that the contract provisions as applied violated Section 8(e).3 In so doing he concluded that the fiberglass tub- showers were a new product for which Respondents had no legitimate work preservation claim, and that the assessments constituted economic coercion aimed at forcing a cessation of business with the manufacturer and was proscribed by Section 8(b)(4)(ii)(B) of the Act. We do not agree. This same provision and similar monetary assessments made for breach thereof, came before us in Associated General Contractors of California, Inc., supra. We there found that in resorting to use of paragraph 13 with respect to certain covered fabrication work the unions did not violate Section 8(b)(4)(ii)(B) and that the contract as so applied did not violate Section 8(e) of the Act. We reach the same conclusion here for substantially the same reasons. With the exception of Local 582's strike threat against Bolle which we have found violative of the Act, here the Respondent Unions sought to resolve disputes with the plumbing subcontractors only by invoking the peaceful and jointly agreed-upon means 3 The Administrative Law Judge included in this finding par. 12 of the contract. However, that paragraph on its face deals with events that occur at the time a plumbing contractor starts a job. In each instance here, that occurred well before the disputes arose. Consequently, as the contract containing par. 12 was entered into in 1969 and as there is no evidence of any attempt to enforce it within the 100) period-or for that matter at any other time-we find that its consideration in this proceeding is barred by 713 established by their collective-bargaining agreement. We reiterate that a contractual agreement such as this for reasonable compensation for a breach of contract determined by contractually fair procedures is a proper and lawful method of resolving a dispute.4 We therefore conclude that Respondent Unions' application of the contract here did not constitute statutorily proscribed threats, coercion, or restraint. Inasmuch as we find that the contractual assess- ments were not designed to achieve any secondary ends proscribed by the Act, we do, not reach the other arguments of the parties relating to secondary- primary employer, work-preservation, or the con- struction industry proviso. AMENDED CONCLUSIONS OF LAW 1. Plumbing-Heating and Piping Employers Council of Southern California, Inc., and Kimstock Division, Tridair Industries, Inc., are, and at all times material herein have been, employers engaged in commerce and in businesses affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. Bolle Mechanical Contractors, Bob Leaverton Plumbing, Inc., and Orcon, Inc., are, and at all times material herein have been, employer-members of Respondent Employers Council. 2. Southern California Pipe Trades District Council No. 16, Plumbers & Steamfitters Local No. 582, and Plumbers and Pipefitters Local No. 230, are, and at all times material herein have been, labor organizations within the meaning of Section 2(5) of the Act. 3. By threatening, coercing, and restraining Bolle Mechanical Contractors, a person engaged in com- merce, where an object thereof was to cause that person to cease using, selling, handling, transporting, or otherwise dealing, in the products or services of Kimstock, Respondent Local No. 582 has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(4)(ii)(B) of the Act. 4. Respondents have not by any other conduct herein committed unfair labor practices within the meaning of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that -Respondent Plumbers & Steamfitters Local No. 582, Los Angeles, Sec. 10(b) of the Act. 4 United Association of Pipe Filters Local Union Na. 455 (D. W. Hickey Co.), 154 NLRB 285, 291, and 167 NLRB 602, 604 (Pierre Aircon incident). As set forth in Associated General Contractors, supra, we find no merit in the General Counsel's argument that the "Aircon" holding was reversed or at least severely hunted, by the Board's later holding in Continental Air Filters Company, 196 NLRB 55. 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD California, its officers, agents, and representatives, shall: 1. Cease and desist from threatening, coercing, or restraining Bolle Mechanical Contractors or any other person engaged in commerce, where an object thereof is to cause said,persons to cease using, selling, handling, transporting, or otherwise dealing in the products or services of Kimstock Division, Tridair Industries, Inc., in violation of Section 8(b)(4)(ii)(B) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its business offices and meeting halls in southern California copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by a representative of Respondent Local 582, shall be posted by Respon- dent immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by said Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail to the Regional Director for Region 21 sufficient copies of said notice for posting by Bolle Mechanical Contractors where notices to its employees are customarily posted, if Bolle is willing. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. MEMBER KENNEDY, concurring in part and dissenting in part: I concur in the finding of my colleagues that Respondent Local 582 violated Section 8(b)(4)(ii)(B) of the Act when it threatened, coerced, and re- strained plumbing contractor Bolle with an object of forcing Bolle to cease handling or installing the fiberglass tub and shower units manufactured by Kimstock. However, contrary to my colleagues, I would also adopt the findings of the Administrative Law Judge that the Respondent Unions have violated Section 8(b)(4)(ii)(B) and, together with the Respondent Employers Council, Section 8(e) of the Act by virtue of their agreement and the monetary penalties levied against the plumbing contractors involved herein. In my view the fines constituted unlawful economic coercion and restraint designed to force a cessation 5 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." of business with the manufacturer of the product involved, as the Board only recently held in Conti- nental Air Filters Company, 196 NLRB 55. In my view, the fines were clearly designed as an unlawful application of paragraph 13 of the contract and an attempt to acquire new work not historically and traditionally done by Respondent Unions. My reasons for this view are fully explicated in my dissent in Associated General Contractors of Califor- nia, Inc., 207 NLRB No. 58, where just such a fine was levied as we have before us here under the same paragraph 13. No purpose will be served by repeti- tion of those reasons here. Particularly with regard to the 8(e) allegations, I agree with the Administrative Law Judge that the fiberglass tub and shower units historically had not been handled by members of the Respondent Unions. The Kimstock fiberglass units were techno- logical innovations, manufactured by a completely different process, and required unique methods of handling and installation foreign to the old-style steel tubs. The evidence is clear that Respondent Unions had not performed to any significant degree the unique work processes involved since the introduc- tion of the fiberglass units in or about 1959. Indeed, in the earlier CD proceedings involving these parties, in which we awarded this disputed work to the employees of Kimstock who were represented by the Carpenters, we stated that, aside from the traditional carpentry aspect of the work, the handling and installing of these synthetic products was a specializ- ed skill most competently discharged by the experi- enced employees of Kimstock who have been performing that work. Thus, the Unions' demonstrat- ed purpose in coercing the unoffending plumbing subcontractors here can only be to acquire the tasks now performed by employees of the manufacturer. Indeed, as E. E. Schell, business manager of Respondent District Council since 1953 and secretar- y to the negotiating committee, testified, Respondent District Council's purpose in fining the plumbing contractor was to compel him to surcharge the general contractors with the amount of damages assessed, thereby forcing the general contractor to cease awarding the disputed work to Kimstock. For these reasons I would find that Respondent Unions have violated Section 8(b)(4)(ii)(B) of the Act not only by the strike threat but also by assessment of fines against neutral and unoffending employers. 7 I would further find that, by thus applying paragraph 13 and Addendum No. 3 to work not traditionally 6 Southern California Pipe Trades District Council No 16,• Plumbers and Steamfitters Local No. 582 (Kimstock Division, Tridair Industries, Inc.), 197 NLRB 1279. 7 George Koch & Sons, Inc., 201 NLRB 59. SOUTHERN CALIFORNIA PIPE TRADES 715 done by them, the Unions have violated Section 8(e) of the Act.8 At this point I should note that it appears the majority has departed from the clear intent of Congress in enacting Section 8(e) to close the loophole in the secondary boycott provision, by finding an 8(b)(4)(ii)(B) strike threat, but then refusing to even consider whether the contract provision which the strike threat was intended to implement was, as alleged, a hot-cargo provision violative of Section 8(e). Moreover, as I explained in my dissent in the prior case, I view the majority's deferral to the use of contract provisions to resolve secondary boycott and hot-cargo issues as a sharp departure from existing Board law. See Bigge Drayage Company, 197 NLRB 281. Respondent Unions' complaints must be re- solved by a civil suit, not by unlawful secondary pressure. George Koch and Sons, Inc., supra. However tightly the majority seeks to draw the perimeters of their conclusions here and in the prior case, they are breaching the protective wall of the secondary boycott and hot-cargo provisions of the Act.9 The majority does not even confine their holding to the construction industry. Apparently, they would extend their rationale and sanction all hot-cargo contracts-not just those which Congress specifically exempted in Section 8(e). 8 I find insufficient evidence in this record to demonstrate that any attempt was ever made to specifically invoke par. 12 here, and therefore I find it unnecessary to pass on it. 9 This is the third case involving this contract and its application to reach us. The first was Southern California Pipe Trades District Council No. 16 (Seefore Corporation), 193 NLRB 796. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE, Plumbers & Steamfitters Local No. 582, WILL NOT threaten, coerce, or restrain Bolle Mechanical Contractors, or any other person engaged in commerce, where an object thereof is to cause said persons to cease using, selling, handling, transporting, or otherwise dealing in the products of Kimstock Division , Tridair Indus- tries, Inc., in violation of Section 8(b)(4)(ii)(B) of the Act, as amended. PLUMBERS & STEAMFITTERS LOCAL No. 582 (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Eastern Columbia Building, Room 600, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5254. DECISION STATEMENT OF THE CASE IRvING ROGOSIN, Administrative Law Judge: The consolidated complaint, hereinafter referred to as the complaint, issued March 30, 1972, alleges that Respondent Unions and Respondent Employers Council have been engaging in unfair labor practices within the meaning of Section 8(e), and that Respondent Unions have also engaged in unfair labor practices within the meaning of Section 8(b)(4)(ii)(B) and Section 2(6) and (7) of the Act.t Specifically, the complaint alleges that on or about September 18, 1969, Respondent District Council, on behalf of its affiliated local unions, including Respondent Locals 582 and 230, entered into a collective-bargaining agreement with Respondent Employers Council, on behalf of its employer-members, by the terms of which Respon- dent Employers Council, on behalf of its employer- members, agreed to cease or refrain from doing business with any other persons, including Kimstock, and thereafter invoked, reaffirmed, and gave effect to said agreement, thereby engaging in unfair labor practices within the meaning of Section 8(e) of the Act. The complaint further alleges that Respondent Unions threatened, coerced, and restrained named plumbing contractors by specified conduct with an object of forcing or requiring said contractors and others engaged in commerce, or in an industry affecting commerce, to cease using, selling, r Designations herein are as follows : The General Counsel, unless otherwise stated or required by the context, his representative at the hearing; Southern California Pipe Trades District Council No. 16, Respondent District Council or the District Council; Plumbers & Steamfitters Local No. 582, Respondent Local 582 or Local 582; Plumbers and Pipefitters Local No. 230, Respondent Local 230 or Local 230; Plumbing-Heating and Piping Employers Council of Southern California, Respondent Employers Council or Employers Council ; Kimstock Division, Tridair Industries, Inc., the Charging Party or Kimstock; the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat . 519, 29 U.S.C. Sec. 151, et seq. ), the Act; the National Labor Relations Board , the Board. The charge in Case 21-CC-1358 was filed and served on Respondent District Council and Respondent Local 582 on November 26, 1971; the charges in Cases 21-CC-1358-2, 3, 4, and 5 were filed and served on Respondent District Council and Respondent Local 582 on December 2, 1971; the charge in Case 21-CC-1360 was filed and served on Respondent District Council and Respondent Local 230 on December 2, 1971; the charge in Case 21-CE-106 was filed and served on Respondent District Council, Respondent Local 582 and Respondent Employers Council on November 26, 1971; and the charge in Case 21 -CE-108 was filed and served on Respondent District Council, Respondent Local 230, and Respondent Employers Council on December 2, 1971. 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD handling, transporting, or otherwise dealing in the prod- ucts or services of Kimstock, or to cease doing business with Kimstock, thereby engaging in unfair labor practices within the meaning of Section 8(b)(4)(ii)(B) of the Act. Respondent Unions' joint answer admits the procedural and jurisdictional allegations of the complaint, denies other allegations for lack of information and belief, and denies the remaining substantive allegations. Respondent Employers Council's answer (Cases 21-CE-106 and 21-CE-108) admits the procedural and jurisdictional allegations; its status as collective-bargaining representative of its employer-members; the execution of and adherence to the collective-bargaining agreement in question; and specifically admits that, by giving effect to the provisions of the agreement quoted in the complaint, it has agreed to cease or refrain from doing business with Kimstock and others, but alleges that it entered into the provisions with Respondent Unions "only after an eighty (80) day strike, pursuant to economic coercion and duress" exerted by Respondent Unions. Hearing was held before me on May 23, 24, 25, and 26; June 26, 27, 28, 29, and 30; July 5, 6, 7, and August 22, 23, 24, 25, 29, and 30, 1972, at Los Angeles, California. All parties appeared and were represented by counsel, were afforded full opportunity to be heard,2 to examine and cross-examine witnesses, to introduce oral and documenta- ry evidence relevant and material to the issues, to argue orally, and to file briefs and proposed findings of fact and conclusions of law. Pursuant to an extension of time duly granted, the General Counsel and Respondent Union filed briefs on November 6, 1972. No proposed findings of fact and conclusions of law have been filed. Upon the entire record in the case, and based on the appearance and demeanor of the witnesses, and the briefs of the parties, which have been carefully considered, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYERS Plumbing-Heating and Piping Employers Council of Southern California, Inc., Respondent Employers Council, a California corporation with its principal office and place of business at Los Angeles, is an association of employers engaged in business in the State of California as plumbing, heating, and piping contractors. Respondent Employers Council was organized for the purpose, among others, of engaging in, and has engaged in, negotiating and entering into labor contracts on behalf of its employer-members with the collective-bargaining representatives of their employees, and in representing its employer-members in matters of disputes and grievances, and in other phases of labor management relations. In the conduct of their business operations, the employer-members of Respondent Employers Council, which bargain collectively on a multiemployer basis through Respondent Employers Council, purchase and receive goods and materials valued in the aggregate in excess of $50,000 annually from points directly outside the State of California. 2 After an opening statement by its counsel reiterating its position as stated in its answer, Respondent Employers Council withdrew from further Kimstock Division, Tridair Industries, Inc., herein called Kimstock, the Charging Party, a wholly owned subsidiary of Tridair Industries, Inc., with its main office and place of business at Santa Ana, California, is engaged in the manufacture and installation of synthetic bathtubs, show- ers, and other synthetic products. In the conduct of its business, Kimstock purchases goods and materials valued in excess of $50,000 annually directly from points outside the State of California and sells goods and products valued in excess of $50,000 annually directly to customers located outside the State of California. It is, therefore, found, on the basis of the foregoing, and upon the entire record, that Respondent Employers Council and Kimstock, are each employers engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Southern California Pipe Trades District Council, Respondent District Council herein, comprised of 17 affiliated local unions ; Plumbers & Steamfitters Local No. 582, Respondent Local 582 herein; and Plumbers and Pipefitters Local 230, Respondent Local 230, whose geographical jurisdictions are all located in southern California in the area between San Luis Obispo County and the Mexican border, are, and at all times material herein, have been, labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues 1. Whether section III, subsections 12 and 13 of the collective-bargaining agreement are unlawful per se and violative of Section 8(e) of the Act. 2. Whether, by invoking, reaffirming, and giving effect to said provisions, Respondent Unions and Respondent Employers Council have violated Section 8(e) of the Act. 3. Whether said provisions constitute lawful work preservation clauses designed to preserve or protect work traditionally and customarily performed by plumbers. 4. Whether said provisions, as interpreted and enforced by Respondents, are designed to preserve or reacquire work traditionally and customarily performed by plumb- ers, or which, if not traditionally and historically per- formed by plumbers, is, at least, fairly claimable by Respondent Unions. 5. Whether, by imposing fines on neutral or secondary employers, and threatening to withhold the services of employees from such secondary employers, for failure to comply with said provisions, Respondent Unions have engaged in unfair labor practices within the meaning of Section 8(b) (4Xii)(B) of the Act. 6. Whether the Board's "right-to-control" doctrine is still a viable principle in a determination of the foregoing issues. 7. Whether the construction industry proviso to Section participation in the hearing. SOUTHERN CALIFORNIA PIPE TRADES 8(e) exempts said provisions and conduct thereunder from the operation of Section 8(b)(4)(ii)(B) of the Act. B. The Collective-Bargaining Agreement; the Pertinent Provisions The collective-bargaining agreement between Plumbing- Heating and Piping Employers Council of Southern California, Inc., on behalf of all present and future members, referred to as the Contractors, and the Southern California Pipe Trades District Council No. 16 of the United Association, in behalf of all employees represented by the Unions, was executed on September 18, 1969, effective from July 1, 1969, to June 30, 1972, with certain Qualifications not here material. By the terms of the agreement, the Contractors recognize the Unions as exclusive bargaining representative of all employees of the Contractors performing "plumbing, heating and piping work of every description," and the Unions recognize the Employers Council as exclusive collective-bargaining representative of all its members performing the type of work covered by the agreement. The specific provisions involved in these proceedings read as follows: Section III 717 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. Subjoined to the collective-bargaining agreement is the following: Addendum No. 3 CARPENTER'S AND U. A. NATIONAL AGREEMENT Work Covered 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 signatory Contrac- tor, a Contractor representative will accompany 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 that all work covered under "Scope of Work" in the P. 1. P. E. Specification Guide (Revised Edition), except ;:hose items excluded and listed below, including but :lot limited to all fabrication and installation work, ,ha 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 Synthetic Bathtubs and Showers-March 21, 1969 1. Synthetic bathtubs and showers which are manufactured with finished walls attached will be unloaded, uncrated and handled from initial unloading to the point of installation by a composite crew. 2. The United Association will set the fixture to and over the plumbing rough in. 3. The United Brotherhood will perform all work necessary to anchor the fixture to the studs or walls. 4. The United Association will drill the neces- sary holes and will install all waste and water connections necessary. C. The Nature of the Controversy The basic dispute between Respondent Unions and the manufacturers of fiberglass bathtubs, shower stalls, and combination tub and shower units in southern California, including Kimstock, the Charging Party, is whether employees of the plumbing contractors, represented by Respondent Unions, or the employees of the manufactur- ers, represented by other unions, principally the Carpenters Unions, are entitled to perform certain work tasks in connection with the delivery and installation of fiberglass tub and shower units. Respondent Unions maintain that plumbers, members of their unions, have the right to "distribute," as that term is used in the industry, these units either wholly, or at least, on a "composite crew" basis, as provided in Addendum No. 3 to the collective-bargaining agreement, set the units in place over the roughed-in plumbing, and drill necessary 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD holes to accommodate valves and other plumbing appurte- nances. Kimstock, as well as other manufacturers of fiberglass units, contends that all the work entailed in the delivery and installation of these units is to be performed by their own employees, designated as installers, as has been the practice since the advent of the fiberglass unit in the construction industry. Until about late 1959, bathtubs were manufactured from enameled steel or cast iron and were installed by plumbers. The method of installation was relatively simple. The plumbers removed the tubs from the delivery truck, carried them into the house, and set them in place in the bathroom. The plumbers then installed the waste and overflow drains over holes previously drilled at the factory. The metal tub was not attached to the wall by the plumbers, and the plumbers did not set plaster or tile around the tub. Although shower units are not ordinarily manufactured in combination with metal tubs , plumbers have installed shower heads over tubs by connecting the shower head to the tub valve, which has previously been installed in the frame construction wall, built by the carpenters, and later covered by plaster or dry wall, and finished with a tile surface.3 In the latter part of 1959, Kimstock began manufactur- ing, selling, delivering, and installing synthetic or fiberglass tub and shower units, either separately or in combination, throughout southern California. Since then, the major manufacturers of this product have sold, delivered, and installed about 319,000 fiberglass units in this area. Between late 1959 and mid-1972, Kimstock itself delivered and installed about 108,000 units in southern California.4 Fiberglass tub and shower units, sometimes referred to as synthetic bathtubs and showers, are manufactured by a process which involves the spraying of quantities of fiberglass and resin over molds, resulting in the production of a completed tub or shower unit or combination of both. Kinstock manufactures a variety of models of the basic units with walls attached. In the final stages of the operation, drain and overflow holes are drilled in the units and, where requested by the customer, holes are also drilled at the factory for the diverter valves, and hot and cold water valves. Finishing touches are made on the units, which are then staged for delivery. Shower heads and fill spouts are usually drilled at the jobsite by Kimstock's installers. Since Kimstock began manufacturing fiberglass tub and shower units, about 90 percent of its product has been sold, delivered, and installed under contracts of sale which provide for the delivery and installation of the fiberglass units by Kimstock's employees. The remaining 10 percent has been sold to customers, such as mobile home manufacturers, who do their own installation. The actual plumbing connections on fiberglass units sold on an installed basis, however, are made by the plumbers, who are not employees of Kimstock but of plumbing contrac- 3 These findings are based on the uncontradicted testimony of Robert Leaverton, president of Bob Leaverton Plumbing, Inc., a plumber contractor since 1957, primarily in Orange County. According to him, in 1957, the only type of bathrooms being installed were steel or metal tubs, with tile showers. In contrast to other plumbing contractors, 90 percent of his jobs call for cast iron tubs. tors, and the performance of this work is not in issue in these proceedings. Distribution and installation of the fiberglass units are, however, involved. Under Kimstock's practice, the units have been delivered to the jobsite by a truckdriver and helper or swamper, both employed by it. The truckdriver transports the units to the jobsite of Kimstock's customer, and proceeds through the area, stopping at each apartment building or dwelling in the project where units are to be installed. The driver and swamper then unload the units and carry them into each of the residential units in close proximity to the bathroom. Actual installation of the unit is performed by Kim- stock's installers, who move the units to the bathroom area. Because, unlike the metal tub, which can usually be upended and carried through the bathroom doorway, the fiberglass unit, which consists of a self-contained unit, complete with walls, is too large to be handled in this way, it is necessary for the installer to remove the studs, trimmers, or king studs to enable him to carry the unit into the bathroom area. The installer next places the unit in the upright position, while he deposits casting plaster at the place where the unit is to be set and imbeds the unit in the plaster. If holes for shower valves and heads have not been drilled at the factory, the installer will drill the required holes before setting the unit in the plaster, after determin- ing the location for the holes from the plumbing tree. When the unit has been set in the casting plaster, the installer levels and nails the unit in place. Particle boards, consisting of 3-inch wooden strips, are nailed to the studs, and the particle boards are then bonded by means of a thick resinous substance. The bonding process is not required in the installation of bathtubs alone, which are not provided with walls. Combination tub and shower units, however, constitute the largest volume of Kimstock's sales. Except for final inspection by Kimstock's field service representative several weeks after the installation is completed, and possible touch-up of the unit, this consti- tutes the installation phase performed by Kimstock's installers. The method of installation of fiberglass units is in marked contrast to that used in installing metal tubs, work performed by plumbers in the southern California area, who are members of Respondent Unions. With regard to metal tubs, plumbers need only set the metal tubs in the designated place in the bathroom, without the necessity of using casting plaster. All required holes in the metal tub are drilled at the factory. Unlike the fiberglass units, which are made with walls of the same material, metal tubs do not come with walls, and plumbers, employed by the plumbing contractors, do not bond or otherwise secure the tubs to the structure. Before the advent of fiberglass units, a combination metal tub and shower unit required construction of a tile wall around the metal tub, made by a tile setter, not a member of the plumbers unions. Where 4 Installation by other manufacturers of this product were approximately as follows: American Superior, Inc., which began production in 1964, 110,000 units; Pineco, beginning in 1968, 36,000 units; Selectile Company, Inc., beginning in 1969, 65,000 units, all through mid-1972, which; with Kimstock's 108,000 units aggregated 319,000 units. SOUTHERN CALIFORNIA PIPE TRADES 719 required, the shower head was installed over the tub by the plumber. The drivers and installers employed by Kimstock, who deliver and install fiberglass units, as described above, have been represented by the Orange County District Council of Carpenters, Local Union 2665, United Brotherhood of Carpenters and Joiners of America, pursuant to a Board certification in Case 21-RC-8294, under a succession of collective-bargaining agreements, the latest effective from September 11, 1970, through July 31, 1973. Employees of other manufacturers of fiberglass units, mentioned earlier, whose delivery and installation procedures are substantial- ly similar to those of Kimstock, have also been, and are currently represented by various local unions affiliated with the United Brotherhood of Carpenters and Joiners of America. With regard to these manufacturers, since becoming engaged in the business of manufacturing fiberglass units, about 90 percent of the units sold by American Superior and Selectile, and 45 percent of those sold by Pineco in southern California have been on a delivered and installed basis, and employees of these companies have delivered and installed the fiberglass units. Other manufacturers of this product, Plasticon Company and the American Standard Company, with a ,substantially lesser share of the fiberglass unit market in southern California, have deliv- ered and installed these units with employees who were members of the Carpenters Union. Respondent District Council or its affiliated locals have at no time been certified by the Board as collective-bargaining representa- tive of Kimstock's employees or those of the other fiberglass manufacturers, nor have these employees been required by any Board order to bargain with Respondent Unions as representative of their employees engaged in the delivery and installation of fiberglass units. D. The 8(e) Allegations The General Counsel contends that section III, subsec- tions 12 and 13, of the collective-bargaining agreement are per se unlawful because, under the Board's "right-to- control" principle, the objective of the provisions is secondary, hence, violative of Section 8(e). Furthermore, he maintains these provisions, as interpreted and enforced by Respondents, are designed to "capture" work for plumbers, bargaining unit employees, which they have not previously performed and are, therefore, also violative of Section 8(e). Since the challenged provisions apply to signatory plumbing contractors, who have no right of control over work which Respondent Unions claim, and which is awarded by the general contractor or builder to other subcontractors, it is argued, the signatory plumbing contractors have no right of control, and are, therefore, secondary employers, and the provisions are unlawful. 5 Unless otherwise stated or required by the context, Respondent Unions will hereinafter be referred to collectively as Respondents. a Citing N.LR.B. v. Local Union No. 164, international Brotherhood of Electrical Workers, AFL-CIO, 388 F.2d 105 (C.A. 3, 1968); American Boiler Manufacturing Association v. N.LR.B., 404 F.2d 556 (C.A. 8, 1968); Beacon Castle Square Building Corporation v. N.LR.B., 406 F.2d 188 (C.A. 1, 1969); Local No. 636 United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry ofthe United States and Canada AFL-CIO Since the thrust of the disputed paragraphs is secondary, the General Counsel maintains, Respondents5 are not exempt from the consequences of those provisions, because even if construed to relate to on-site work, the construction industry proviso to Section 8(e) does not apply because the provisions contain self-help remedies. In this connection, paragraph 12 provides that Respondents may suspend plumbing work on the job for 7 days if a meeting is not arranged with the awarding authority. Paragraph 13, moreover, provides for the assessment of damages against signatory plumbing contractors who do not contract to perform all work claimed by Respondents. The General Counsel further contends that the work in dispute has not been historically and traditionally performed by members of Respondent Unions, and that, contrary to Respondents' contentions, the purpose of the clauses is to acquire rather than to preserve, recapture, or reacquire work traditionally and customarily performed by plumbers. Respondents argue that the Board's reliance on the right- of-control test is misplaced, and that this test has been repudiated by the courts as the sole means of determining whether activity is primary or secondary.6 The correct test, these Respondents contend, to determine if activity is primary or secondary, is the one laid down by the Court in the National Woodwork case.7 Respondent Unions further contend that paragraphs 12 and 13 are lawful primary work-preservation clauses designed to preserve or reacquire work which has tradition- ally been performed by plumbers, and, as such, coercive activities directed against signatory plumbing contractors are not unlawful. Alternatively, these Respondents argue, if the clauses are not to be construed as primary work- preservation provisions, their activities are protected by the construction industry proviso to Section 8(e), and, further- more, neither clause contains unlawful self-help provisions. It is obvious, therefore, that the underlying issue to be resolved is whether the clauses in question were designed to preserve work traditionally and customarily performed by employees in the bargaining unit or to accomplish other union objectives. Respondent Unions contend that the controversial clauses were designed to cover only work which had historically and traditionally been performed by plumbers, and that insofar as the clauses are applicable to fiberglass units, the work is fairly claimable since Respondents are seeking to preserve or reacquire work which their members have traditionally performed. As Respondents recognize, before the question of whether plumbers have traditionally performed this work is decided, it is necessary to determine the nature of the work involved. Respondents pose the rhetorical question of whether a union may be precluded from claiming work which it has traditionally performed, on a product which, though altered by technological processes as to composition of materials used and v. NLRB., 430 F.2d 906 (C.A.D.C., 1970); Western Monolithics Concrete Products, Inc. v. N.LRB., 446 F.2d 522 (CA. 9, 1971). As Respondent Unions point out, the Board heard oral argument in March, 1972, on the issue of the "right of control" test , but as of this writing, it has not announced its decision. 7 National Woodwork Manufacturers Association v. NLRB., 386 U.S. 612(1967). 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD configuration, performs the same function as a product which has traditionally been installed by its members. In this respect, Respondent Unions point out that although bathtubs have undergone improvements since the days when they were manufactured of wood covered with copper, later, of cast iron covered with porcelain, and subsequently of pressed steel or metal covered with enamel, all these tubs were installed by plumbers. The fact that the traditional types of steel and metal tubs have been replaced by fiberglass tubs should not affect the right of plumbers to perform that work. As has already been stated, prior to the introduction of fiberglass tubs and showers, plumbers performed all the work entailed in installing steel tubs, including unloading, distributing, setting in place and hookup, and the work of installing showers over these tubs has always been performed by plumbers. Thus, Respondents argue, the fiberglass units do not constitute a new product but a technological improvement of the former product. The function of the combination fiberglass unit remains unchanged, and it is still necessary to connect the unit to the plumbing, work which has traditionally been performed by plumbers. The conven- tional tile wall over the bathtub has now been replaced by a molded unit with fiberglass walls attached as an integral part of the unit, but this, according to Respondents, amounts to no more than a "refinement of an older product brought about by advanced technology and automation." Here, Respondents rely on the language of the Court in National Woodwork,8 We cannot lightly impute to Congress an intent in Section 8(e) to preclude labor-management agreements to ease these effects through collective bargaining on this most vital problem created by advanced technolo- gy. That the introduction of fiberglass tubs and showers into the housing market during the past 10 years, and more particularly the last 5 years, has drastically reduced the work opportunities for plumbers, can hardly be gainsaid. The union representatives acknowledge that fiberglass units presently comprise between 80 and 90 percent of all bathtub and shower installations. But this does not in itself establish that the objective of the disputed clauses was solely the preservation or the reacquisition of work traditionally and customarily performed by members of Respondent Unions. The General Counsel contends that the inclusion of these provisions, and Respondents' interpretation and enforce- ment of them, were designed to "capture" or acquire new work for employees in the bargaining unit, which they had not previously substantially performed, thereby enlarging the bargaining unit, and attempting to control the labor relations policies of employers other than those with whom they enjoy a collective-bargaining relationship. In support 8 386 U.S. 612, 642. 9 While specifically stating that the evidentiary findings in the 10(k) proceedings involving these parties would not constitute res judicata in any subsequent unfair labor proceeding, it is not without significance that the Board there found that "the skills and tools involved in the actual installation, as opposed to the delivery [of the fiberglass units ], are those traditionally of carpenters. The actual hookup of the plumbing connections is done by plumbers who are not employed by Kimstock, and there is no dispute over that part of the work. Aside from the traditional carpentry aspect of the work, according to the Employer's evidence, the handling and of this contention, the General Counsel relies upon the following factors: (1) The work involved in the delivery and installation of fiberglass units is not necessarily work traditionally performed by plumbers; (2) this work has been performed for many years by employees other than members of Respondent Unions, with the full knowledge and acquiescence of Respondents; and (3) these employees have a valid work-preservation claim to the disputed work. While the record fairly establishes that prior to the introduction of fiberglass units into the industry, the work of "distributing" (actually the unloading and carrying of the tubs into the housing units from the point of delivery by the driver) and depositing them in the bathroom area, as well as the installation of the tubs, was actually performed by plumbers, this procedure has not been customarily and consistently followed with regard to the fiberglass units. It is too simplistic to argue that a "bath tub is a bath tub" regardless of the materials used or the process of production. Nor is it an answer to say that the fiberglass units are merely refinements or improvements of a preexisting product. The very nature of the materials used and the self-contained unit, complete with walls of the same materials, requires a distinctive method of installa- tion. As has been shown elsewhere, all that was required in the installation of the metal tubs is to set the tub in place and make the necessary connections. Installation of fiberglass tubs entails, as has been shown, the removal of studs in order to gain access to the bathroom, the deposit of casting plaster at the place where the unit is to be installed, the setting and imbedding of the unit, the leveling and nailing of the unit in place, the nailing of particle boards to the studs, the bonding of the unit to the wall, and the drilling of holes in the fiberglass unit, all involving skills more closely related to the work of carpenters rather than plumbers. Such work was neither required nor performed by plumbers in connection with the installation of metal tubs. Since metal tubs have never been manufac- tured in combination with showers, shower heads being installed separately over metal tubs, there has been no occasion to compare such installation with the installation of a single combination fiberglass unit. Moreover, since the fiberglass unit is manufactured with walls attached, these walls must be bonded or secured, and it is undisputed that plumbers have never performed the work of building walls around the metal tub or shower unit, work traditionally performed by members of other craft units .9 There is evidence that Respondents had attempted to perform the work of installing fiberglass units in 1961, and that by 1963, locals affiliated with District Council No. 16, had performed some of this work. During this interval, some locals affiliated with the District Council entered into informal arrangements with locals of the Carpenters Union under which the work was performed by composite crews. installing of these synthetic products is a specialized skill which is most competently discharged by experienced workmen such as those who have been engaging in it. "It appears that no more than one person can work on one of these units at a time and that a composite crew, or any method necessitating more than one installer (excepting the plumber who under existing practice does the hookups at a different time), would involve inefficiencies caused by the members of a crew waiting for each other to finish." Southern California Pipe Trades District Council No. 16, et aL (Kimstock Division, Tridair Industries, Inc.), 198 NLRB No. 182. SOUTHERN CALIFORNIA PIPE TRADES 721 In 1963, however, as a result of unfair labor practice charges involving illegal jobsite activities , filed against local unions affiliated with District Council No. 16, as well as the District Council, and 10(1) injunctions, the cases were settled (on terms not revealed by the record here), and attorneys for these Unions advised them to abandon any further jobsite activity in respect to fiberglass units. Efforts to settle their dispute with plumbing contractors, signatory to the existing collective-bargaining agreement, resulted in a stalemate in proceedings before the Joint Arbitration Board provided for in the contract. In 1969, Respondents negotiated the current collective- bargaining agreement, containing paragraphs 12 and 13, which they believed constituted lawful primary work- preservation clauses. Since then, Respondents have made a determined effort to assert jurisdiction over the installation of fiberglass tubs. As background for the negotiation of the disputed paragraphs, District Council Business Manager Schell testified that these clauses were negotiated without specific reference to fiberglass tubs and showers, although the Unions had been aware of and had made sporadic efforts to cope with the problem between 1961 and 1963. The Union complained that under the former contract, plumb- ers had been losing work because signatory plumbing contractors were declining to bid on certain plumbing work, which they regarded as unprofitable. Grievances filed against plumbing contractors proved futile because employer-members of the Joint Arbitration Board, provid- ed for under the contract, refused to entertain the grievances, contending that since the disputed work was not covered by the plumbing contract, the signatory plumbing contractor had no right of control. The Union did not proceed to arbitration, according to Schell, because the party failing to prevail was required to pay the entire cost of the arbitration. It sought, instead, to redress these grievances in the 1969 negotiations. By this time, due to the introduction of new or improved products, and innovations in methods of construction, as well as the disinclination of plumbing contractors to bid on and perform all work to which plumbers claimed to be entitled, membership in the locals affiliated with the District Council decreased from 21,000 to about 16,000. During the negotiations, the unions complained to the employers of the loss of work opportunities due to the failure of the plumbing contractors to contract for and perform all plumbing work. Following a strike of 81 days duration, paragraphs 12 and 13 were adopted and incorporated into the collective-bargaining agreement. In support of their position that paragraphs 12 and 13 constitute no more than work-preservation clauses, Res- pondents refer to paragraph 11 of the previous collective- bargaining agreement, which was a similar provision, which did not define the work involved or provide for methods of enforcement. The corresponding provision (paragraphs 12 and 13) of the current agreement, was drafted, according to Respondents, to exclude all work which had not been historically or traditionally performed by plumbers. Paragraph 11 of the current agreement purports to set forth 52 areas of jurisdiction claimed by all locals affiliated with the parent plumbers organization. Paragraph 13 enumerates the work on which plumbers are required to bid, without reference to the 52 points of jurisdiction, and includes some of the work covered by the P.I.P.E. Specification Guide.10 In the initial stages of the preparation of the specification guide, the unions insisted that the so -called 52 points of jurisdiction be included in the guide. When this demand was refused by the employers, after a series of meetings it was agreed that only such work as had historically and traditionally been performed by plumbers, would be included in the Specifications. According to Respondents, the final version of the guide included only such work. All work which could give rise to jurisdictional disputes with other unions, including certain work claimed by the United Association (parent authority of the plumbers unions), was eliminated. Some work which had been performed by plumbers was excluded from the coverage of paragraph 13, and inserted in another section (section XV) of the labor agreement to be enforced under the fabrication clause. Installation of tubs and showers, although covered in the specifications as work to be performed by plumbers, did not specifically cover synthetic or fiberglass units: Evidence was adduced by Respondents, over the strenuous objection of the General Counsel, primarily on the ground of hearsay, that, at least since 1969, substantial quantities of fiberglass units were installed by members of Respondent Unions at various building projects in south- ern California. The evidence was based generally on testimony of business agents and their assistants , regarding their observations during random visits at jobsites where their members were working, and, to a lesser extent on the testimony of journeymen plumbers employed at those sites. The General Counsel has painstakingly analyzed and commented on the lack of reliability of the evidence in an Appendix to his brief. Generally, the objections, as well as the motion to strike the testimony, renewed in his brief, are based upon the ground that the evidence was not based on the witnesses' personal knowledge but on , information obtained from assistants, union stewards, plumbing con- tractors, and letters from such contractors, purportedly stating that plumbers had "installed" fiberglass units. In addition, estimates of 'the number of units allegedly installed by members of Respondent Unions, separately or on a composite crew basis, were based, not , on witnesses' personal knowledge, but on information derived from construction industry publications (commonly referred to as Green Sheets and Dodge Sheets), announcing the location, type of construction, number of proposed dwelling units, and similar information of interest to members of the industry. The problem was further complicated by the inexact use of the term "installing" in connection with fiberglass units, since, as used in letters from plumbing contractors, the term could be construed to refer to connecting drains of overflows, work customarily performed by plumbers. While the General Counsel's objections to this line of evidence were technically well taken, any attempt to comply with strict rules of evidence I'D The P.I.P.E. Specification Guide was prepared in 1962 by the as well as outside engineers, to delineate the work required to be included in employers (plumbing contractors) in consultation with the plumbers unions, contracts between general contractors and plumbing contractors 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on this issue, even if the original evidence-were available, would present overwhelming obstacles, and prolong the hearing interminably, without justification. Practical con- siderations, therefore, favor the admissibility of this evidence. The weight to be given this evidence, however, must be affected by the manner in which it was adduced. To demonstrate the unreliability of this evidence, the General Counsel, in rebuttal, introduced credible and reliable evidence that employees of manufacturers installed in the aggregate more than 12,000 units on jobs on which Respondent Unions' witnesses claimed plumbers had performed the installation of fiberglass units. Moreover, evidence introduced by the General Counsel concerning specific housing projects, as to which Respondents' witnesses had testified fiberglass units were installed by members of their locals or composite units, established that either Kimstock or Selectile had contracts for the installa- tion of 16,000 of these units. Since the work of installing these units was not awarded to plumbing contractors under the terms of these contracts, it is unlikely that employees of the plumbing contractors performed the installation on these jobs. Calvin Emery, business manager of Local 78 (not directly involved in these proceedings), testified that from 1971 to the date of the hearing, some 40,000 fiberglass units were installed by members of his local or by a composite crew. This estimate was admittedly based on information reported to him by his assistants, as well as construction industry publications regarding projected construction. On this basis, Emery testified that 99 percent of all fiberglass units in the jurisdiction of his local was performed by its members or a composite crew. Aside from technical objections to the admissibility of this testimony, it is of negligible probative value in the face of direct evidence by installers employed by the manufacturers, members of the Carpenters Union, that, according to their own personal records, the number of units installed by them amounted to 25,000, a majority of them in the geographical jurisdiction of Local 78. According to Don D. Wade, business manager of Local 582, members of his local installed, either by themselves or as a composite crew, a total of approximately 12,000 units in Orange County between 1970 and the date of the hearing. Again, these figures were estimates, based on information received from union members, Green Sheets, letters from plumbing contractors, and other secondary sources. Moreover, while Wade testified that, during this period, members of his local performed, either by them- selves or as part of a composite crew, 95 percent of the installation of fiberglass units in Orange County, actual figures furnished by Kimstock and Selectile establish that during the same period employees of those companies installed 31,000 units in that geographical area. It should also be noted in this connection, that, despite the fact that the work of installation had been awarded by general contractors to Kimstock or other manufacturers, jurisdictional disputes arose between the Carpenters and the Plumbers Unions at a number of these jobsites, and that such installation of fiberglass units as was performed by plumbers or a composite crew could well have been on the basis of an ad hoc settlement of the particular dispute. Without undertaking an exhaustive and comprehensive analysis of the voluminous evidence, oral and documenta- ry, relating to the vast number of construction projects throughout southern California, involving a wide variety of housing units, including single-dwelling tract houses, apartment houses, condominiums, townhouses, institution- al and educational projects, and motels, running the entire gamut of residential housing, which used fiberglass tubs and showers, the evidence most favorable to Respondent reveals that, since about 1969, plumbers employed by plumbing contractors, members of locals affiliated with the District Council, have to some extent installed, either separately or as part of a composite crew, fiberglass tubs and showers of the type described. The General Counsel contends, however, that the quantity of such units was de minimis as compared with the number installed by employees of Kimstock and other manufacturers. Without conceding the admissibility or reliability of the evidence thus adduced by Respondent Unions, the General Counsel argues that even on the basis of this testimony, members of locals affiliated with the District Council installed at most, either by themselves or as part of a composite crew, a total of 36,150 units, from which should be deducted 12,200 units, accounted for by the testimony of witnesses called by the General Counsel as rebuttal witnesses, leaving the remainder of 23,950 units installed by members of Respondent Unions or composite crews. As has previously been shown, since the introduction of the product to the industry, manufacturers of fiberglass units have delivered and installed some 319,000 units with installers employed by them, who are members of locals affiliated with the Carpenters Union. Assuming, for the purpose of these proceedings, that the evidence of the aggregate number of units allegedly installed by plumbers or composite crews is a reliable index of the work performed by them on fiberglass units, the quantum would represent less; than 7 percent of the total number of units installed by the manufacturers." To the extent that it may be material to any of the issues herein, it is found that, between late 1969 and mid-1972, members of Respondent Unions, either separately or as part of a composite crew, installed approximately 7 percent of the total number of fiberglass units throughout southern California. It should be noted that the vast majority of the installation work which the plumbers claim to have performed was done after 1969, when the contract containing the controversial paragraphs 12 and 13 was executed. Such installation work as was performed by plumbers between 1961 and 1963, when jobsite action to "Evidence offered by Respondents in surrebuttal has not been members of plumbers locals of approximately 3,500 units . As to these jobs, overlooked. Members of Respondent Unions claimed to have installed it is evident from their testimony that the work of installation hadmot been fiberglass units on various jobs on which manufacturers employees testified awarded to the plumbing contractors, and that such work as was done by they performed the installation. The testimony of Respondents' witnesses the plumbers was performed in response to pressure exerted by plumbers revealed, however, that they had direct knowledge of installations by union representatives on the plumbing or general contractors at the jobsite. SOUTHERN CALIFORNIA PIPE TRADES 723 obtain this work was enjoined by the court, was sporadic and relatively insignificant in volume.12 Apparently no further attempts were made to assert a claim to this work until after 1969, when the current contract was executed. That Respondents thereafter made a determined effort to obtain the work of installation of fiberglass units cannot be gainsaid. Analysis and Conclusions Section 8(e) of the Act provides, in pertinent part: 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. It is unnecessary to review the history of the secondary boycott and "hot cargo" provisions of the Act, ' as amended. National Woodwork 13 still stands as the primary source for the interpretation and application of Section 8(e). Later cases in the circuit courts and before the Board involve variations on the same theme. The crucial issue still remains whether the sole objective of the challenged clauses was to protect and preserve work of unit employees or to acquire for its members work which they had not previously performed, that is to say, to achieve objectives elsewhere. This involves a determination of whether the work in question has been traditionally and historically performed by unit employees, or whether through the interpretation and application of the clauses, Respondent Unions are attempting to enlarge the bargaining unit and affect the labor relations policies of employers other than those with whom they have collective-bargaining relations. The record here fairly establishes that, despite Respon- dents' claim that they had attempted to assert jurisdiction over the installation of fiberglass units at least as early as 1961 (bearing in mind that the product was first introduced 12 Both Everett E. Schell; business manager of District Council No. 16, and Ernest L. Duval, business agent of Local 582, confirmed that from the date of the injunction in 1963 to the latter part of 1969, when the clauses in question became effective, virtually none of the installation of fiberglass units was performed by members of locals affiliated with the District Council, and these unions asserted no claim to the work because they regarded fiberglass units as no more than a passing fad. 13 National Woodwork Manufacturers Association v. NL.RB., 386 U.S. 612, and the companion case, Houston Insulation Contractors Assocaition v. N.LRB., 386 U.S. 664 (1967). 14 American Boiler Manufacturing Association v. N.LR.B., 404F.2d 547, 552 (C.A. 8, 1968). 15 Although, as has been mentioned elsewhere, the Board's findings in the 10(k) proceeding are not to be regarded as res judicata in any subsequent in the latter part of 1959), such efforts were of a sporadic nature, and from about 1963, when the injunction was issued against the activities of Respondent Unions, until late in 1969, when the disputed clauses took effect, Respondents performed no work (other than that custom- arily involved in the connection of plumbing fixtures), in regard to the delivery and installation of fiberglass units. It, therefore, cannot be contended that the unit employees were performing "traditional work", i.e., work which they had performed and were still performing "at the time they negotiated a work preservation clause." (Emphasis sup- plied.) 14 The work in question, the delivery and installation of fiberglass units, had been performed throughout that interval by employees (installers) who were members of other unions (Carpenters) employed by Kimstock and other manufacturers, who were not members of Respon- dent Employers Council, with the knowledge and acquies- cence of Respondent Unions. These manufacturers' employees themselves had, and continued to have, a legitimate claim to the performance of this disputed work. The distinctive nature of the product, a single, self- contained, synthetic fiberglass tub and shower, while functionally similar to the metal tub, is manufactured by a process unique to the product, and by the very nature of its composition entails the use of different tools and skills, much of the installation involving carpentry work or work more closely related to skills traditionally employed by members of that craft. The differences in the method of installation of fiberglass tubs and showers as compared with the installation of metal tubs, have already been described.15 Respondents contend, without conceding, that even if fiberglass tubs and showers are deemed a new product'or a refinement of an old product, its members have traditional- ly performed the type of work they now seek to perform, and that the work is, at the very least, fairly claimable. They contend, moreover, that for the work to be deemed traditional or fairly claimable, it is not necessary that the work be currently, continuously and exclusively performed by unit members. Thus, relying on the American Boiler case,16 they maintain, in effect, that even if unit members have performed a relatively small proportion of the disputed work, this does not deprive the work of its character as "traditional work." Respondents' view ;disregards the finding in National unfair labor proceeding, it is not inappropriate to note that the work in dispute was described there as the installation of "synthetic bathtubs and showers at construction jobsites in the southern California area, including but not limited to the unloading, uncrating , and handling of synthetic bathtubs and showers from initial unloading to the point of installation, setting the fixture to and over the plumbing rough -in, and drilling necessary holes including the installation of drain spuds in the shower stall units (which is performed at the Employer's plant), but excluding the hooking up of waste and water connections at the jobsite. " See fn. 9. 16 American Boiler Manufacturers Association v. N L RB„ 404 F 2d 547, 552, where the court said, "We hold only that the term `traditional work' includes work which unit employees have performed and are still performing at the time they negotiated a work preservation clause." (Emphasis supplied.) The italicized phrase can hardly be regarded as incidental. 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Woodwork that the disputed work had "at least customarily been performed by the carpenters on the jobsite." 17 (Emphasis supplied.) To hold that unit employees have performed the disputed work in relatively small quantities, is not tantamount to finding that they have customarily performed such work. In this sense, the word "customari- ly" must be deemed to mean work that the unit employees have generally or for the most part performed.18 The American Boiler decisions,19 on which Respondents rely, are distinguishable on the facts. In those cases, with the advent of packaged boilers, the work of assembling trim pipe and other component parts, which had previously been performed at the jobsite by the unit employees, was completely eliminated, and the work opportunities of the union members drastically reduced. In the instant case, the introduction of fiberglass tubs and showers has had no appreciable effect on the traditional work of plumbers', i.e., the connection of valves, wastes, and drains to the pipes and plumbing system.20 Respondents contend in their brief that the plumbers are only seeking to perform the same kind of tasks that they had performed on the old-style tubs and showers; namely, the distribution of the product to the bathroom and the setting in place of the tub and shower. The only new task the plumbers seek, Respondents assert, is the drilling of the holes, but that, they contend, is so intimately related to the valves on which plumbers work, that it is reasonable for the plumber to drill his own holes so that they will fit and match the valves. Other tasks which the plumber has never performed, Respondents maintain, such as the nailing of the units to the wall, etc., the plumber "leaves to the carpenter and does not claim." The latter statement does not appear to be wholly in accord with the facts established by the record, unless what Respondents are alluding to is the requirement for the use of the composite crew. The evidence, as revealed in the testimony of various plumbers regarding specific jobs on which they worked, indicates that they claimed to have performed the job of installing the fiberglass products either entirely by themselves, or, in some instances, as part of a composite crew. As to the "distribution" of the product, which, as used at the hearing, entailed unloading of the fiberglass units from the point of delivery, carrying them into the bathroom and setting in place, tasks which, according to Respondents, were the same as their members had performed on the old- style tubs and showers, as has already been noted, the installation of fiberglass units required substantial prepara- tion before and during the setting in place, of the kind not previously engaged in by plumbers. Moreover, the fiber- glass unit, molded at the factory as a self-contained unit, obviously entailed special handling, in contrast to metal tubs and showers, more competently and efficiently performed by the installers. The fact that plumbers had formerly "distributed" the metal tubs did not give them a vested interest in performing that work task on what was for all intents and purposes a new product. As to the drilling of holes for valves on fiberglass units, an operation customarily performed at the factory, the record discloses that, although there were instances in which factory-drilled holes did not conform to the configuration of the plumbing tree, in those instances the holes were actually redrilled by the plumbers, and the areas surrounding the original holes refilled by the installers or persons performing final inspection on behalf of the manufacturer. These circumstances are not in themselves sufficient to establish that the drilling of holes in the fiberglass product was work customarily performed by plumbers, so as to constitute work which they were entitled to preserve for themselves or which they were fairly entitled to claim. Moreover, to hold that the mere drilling of holes was fairly claimable work would result in the fragmentation of the installation process to the detriment of efficiency. On the basis of the entire record, and for reasons previously stated, including the basic difference in materi- als, composition, and configuration of the fiberglass tubs and showers, the substantial differences in method of installation, the evidence that installations by plumbers or composite crews were often the result of action taken by plumbers' representatives at jobsites, it is concluded and found that the disputed clauses were not primary work- preservation clauses involving fairly claimable work but were, in fact, work-acquisition clauses designed to capture work not previously customarily or traditionally performed by unit employees who were members of the plumbers unions, and that by executing said clauses and attempting to enforce them Respondent Unions and Respondent Employers Council have engaged in and are engaging in unfair labor practices within the meaning of Section 8(e) of the Act.21 17 Metropolitan District Council of Philadelphia, Carpenters (National Woodwork Manufacturers Assn), 149 NLRB 646, 657. 19 Sheet Metal Workers Union, Local 216 (Associated Pipe and Fitting Manufacturers), 172 NLRB 35. Respondents' contention that the Board merely held that the work was not fairly claimable because it was performed by unit employees only in exceptional circumstances, and that in Local Union No. 98 of the Sheet Metal Workers' International Association (Cincinnati Sheet Metal & Roofing Co.), 174 NLRB 104, enfd. as modified 433 F.2d 1189 (C.A.D.C., 1970), the work was not fairly claimable, because the disputed work was performed by the union only in unusual or emergency work situations, are unduly restrictive interpretations of these decisions 19 United Association Pipefitters Local Union No. 455, 154 NLRB 285, and United Association Pipefitters Local Union No. 539, 154 NLRB 314. See also American Boiler Manufacturers Association v. N.L.R.B., 404 F 2d 547 (C.A. 8, 1968). 20 The rack jobber cases cited by Respondent Unions do not support the contention that the disputed clauses here constituted work preservation clauses or that the work involved was fairly claimable by the unit employees. In those cases, the union, after having abandoned the work of shelf-stocking for 10 years, sought to recapture the work by attempting to apply a work preservation clause to all shelf-stocking work, despite the increase in number and variety of shelf-stocked items in the intervening years. This work entailed no difference in the method of shelf-stocking but merely in the number and variety of items shelved. The shelving continued to be performed in the same manner as previously done by the unit employees. Retail Clerks ' Union, Local No. 648 (West Bay Assn of Food Industries), 171 NLRB 1018; Retail Store Employees, Local Union 876 (Allied Supermarkets, Inc.), 174 NLRB 424. The same may be said for Teamsters, Chauffeurs, Warehousemen & Helpers Local 386 (R.P.B. Trucking, Inc.), 172 NLRB 1037, where the Board held that "overflow" work, incidental to the principal work of unit employees, which they had performed only occasionally in the past, was fairly claunable because closely allied to and identical with work traditionally performed by members of the unit. 21 As has been noted at the outset, Respondent Employers Council has admitted the 8(e) allegations of the complaint but alleges that it entered into SOUTHERN CALIFORNIA PIPE TRADES 725 Respondent Unions further contend that if a finding is warranted that the work-preservation clauses are'secondary or the work is not fairly claimable, then the provisions are exempt by the proviso to Section 8(e). Under the proviso, this section does not 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." The Board has held that this proviso applies only to an agreement relating to work to be done at the jobsite. The proviso does not extend to work that is not to be performed at the construction site.22 While the question of whether the proviso applies here is not altogether free from doubt, it is evident that at least part of the work in issue does not necessarily entail on-site work. Of course, the entire fiberglass unit is fabricated at the manufacturer's plant, where holes for shower heads and valves are drilled. Respondent Unions have main- tained that members of their unions are entitled to drill these holes at the jobsite, and have assessed damages against certain plumbing contractors who have failed to perform this work. But assuming that the disputed provisions were intended to apply to on-site work, the General Counsel contends that these provisions provide for unlawful self-help under the Ets-Hokin case.23 Under paragraph 12, plumbing contractors are required to report to the Unions with regard to all subcontracts exceeding $20,000, and if all the work of plumbers has not been awarded to the plumbing contractor, the matter is to be taken up with the awarding- authority. Under this provision, the Unions may refuse to permit employees to work on the jobsite for 7 days until the meeting with the awarding authority has been held. Subparagraph 13 provides for a nonjudicial remedy for failure to abide by these provisions. Respondent Unions do not contend that paragraph 12 is protected by the proviso to Section 8(e). They contend, however, that this language merely requires that a meeting be held by the plumbing contractor and the Union with the awarding authority to afford the Union an opportunity to persuade the awarding authority to change the work assignment. If the signatory plumbing contractor does not arrange such a meeting, Respondents argue, the Union then has the contractual right to refuse to permit its members to work. Respondents maintain that paragraphs 12 and 13 are separable, and that paragraph 13 need not depend on the existence of paragraph 12. Thus, they contend that if the 7-day clause under that paragraph is held to be a form of unlawful self-help, such finding would merely invalidate paragraph 12, leaving paragraph 13, which they maintain is protected by the exemption under the proviso, intact. Respondent Unions recognize, howev- er, that the provision for the assessment of damages may constitute a coercive self-help measure. Conceding that under the Ets-Hokin holding, threats, coercion, or restraint, proscribed by Section 8(b)(4)(B), the provisions involved under "economic coercion and duress" only after a prolonged strike. It is axiomatic that economic exigencies do not constitute a defense to the commission of unfair labor practices. constitute a self-help provision which would invalidate a contract otherwise exempt from the operation of Section 8(e), Respondent Unions argue that only if the provisions for assessment of damages under paragraph 13 are held to constitute Section 8(b)(4)(ii)(B) conduct, may they be denied the protection of the proviso to Section 8(e). The General Counsel contends that both the provisions, according the Unions the right to refuse to permit unit employees to work on the jobsite for 7 days, under paragraph 12, and the provisions for the assessment of damages, under paragraph 13, constitute unlawful means of self-help and self-enforcement, depriving the provisions of the protection of the proviso. Additionally, the General Counsel maintains that since both paragraphs affect the same subject matter, i.e., work which has not been awarded to the signatory contractor, the self-help provision of paragraph 12 is equally applicable to paragraph 13, and that both paragraphs are removed from the protection of the construction industry proviso. For the reasons stated by the General Counsel, it is found that paragraphs 12 and 13 are not exempt under the proviso to Section 8(e) of the Act. It is further found, for reasons stated hereinafter in the discussion of the Section 8(b)(4)(ii)(B) allegations of the complaint, that the self-help provisions and the enforcement of those provisions, constitute threats, coercion and restraint within the meaning of Section 8(b)(4)(ii)(B) of the Act. E. The 8(b)(4)(ii)(B) Allegations 1. Threats, coercion, and restraint Although the General Counsel maintains that local unions affiliated with Respondent District Council have engaged in numerous jobsite disputes with Kimstock and other fiberglass unit manufacturers, he relies only on four specific instances of violation of this section of the Act. The gravamen of these allegations is that Respondent Unions (1) threatened to withhold plumbing crews from plumbing contractors, bound by the collective-bargaining agreement, unless these contractors were awarded the work of delivering and installing fiberglass units either by themselves or as part of a composite crew; and (2) assessed damages against plumbing contractors who failed to comply with section III, paragraph 13, of the collective- bargaining agreement, because Kimstock employees, rath- er than plumbers employed by plumbing contractors, were permitted to perform all the work involved in the delivery and installation of the fiberglass units. The facts relating to these incidents have been stipulated and are not in dispute. On or about August 2, 1971, Kimstock entered into an agreement with Interland Development Company, Inter- land herein, a general contractor, providing for the delivery and installation of fiberglass tubs and shower stalls at a jobsite at Mesa Verde East, Costa Mesa, California, where Interland was engaged in a construction project. On June 17, 1971, Interland had entered into a contract with Bolle Mechanical Contractors, Bolle herem, the plumbing 22 Southern California Pipe Trades District Council No 16 of the United Association (Seefore Corporation), 193 NLRB 796, and cases cited. 23 Ets-Hokin Corp., 154 NLRB 839, enfd. 405 F.2d 159 (C.A. 9, 1969). 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contractor on the job, a member of Respondent Employers Council, expressly providing that the fiberglass tubs and showers on the job were to be supplied, delivered, and installed by persons other than the plumbing contractor. A dispute arose between Respondent Local 582 and Kimstock as to whether Kimstock's installers or plumbers employed by Bolle were entitled to install the fiberglass units at the jobsite. On October 6, 1971, Maurice Myers, Kimstock's vice president, was summoned to the jobsite. A meeting was held at the jobsite attended by Robert Foreman, Interland's vice president; Jerry Phillips, Inter- land's project manager; "Butch" Thompson, Kimstock's sales manager; Michael Burns, representing Bolle; and Don Wade, business manager, and Gene Duval, business agent, of Respondent Local 582. At Phillips' request, Myers stated his position that Kimstock had traditionally performed the work of deliver- ing and installing the fiberglass units, and that Kimstock had contracted with Interland to perform this work with Kimstock's installers, who were represented by the Carpen- ters Union. Union Business Manager Wade requested that Kimstock comply with the provisions of the collective- bargaining agreement calling for the use of a composite crew, and proposed that a crew consisting of members of the Plumbers and Carpenters Unions deliver the units and that employees of the plumbing contractors be permitted to drill the holes in the units. Myers refused, insisting that this work belonged to the installers, employed by Kim- stock. Burns suggested to Phillips that Interland comply with Wade's demands by executing an addendum agreeing that the work be performed on a composite crew basis. Phillips refused. Myers offered to compromise the dispute by defraying a part of the cost of having Bolle's employees perform the work. Wade stated that unless Kimstock complied with the provisions of the agreement for a composite crew, he would not supply employees to Bolle. Bums remarked that only the Government and the Plumbers Union could "put him out of business," but asked Wade what would happen if his request for a composite crew were refused. Wade said that he would refuse to supply plumbers to Bolle.24 The dispute at this jobsite remained unresolved and, on October 20, another meeting was held between representa- tives of the same parties, augmented by representatives of the Carpenters Union. Present on behalf of Kinistock were Olaf Wik, William Thompson, Jack Bonner and Hal Reitz; on behalf of Interland, "Butch" Thompson and Robert Foremen; on behalf of Bolle, Michael Bums; on behalf of Respondent Local 582, Gene Duval; and on behalf of the Carpenters Union, Mac McGuire and an associate. The discussion was essentially the same as on October 6. Duval reiterated his demand that Bolle's employees, plumbers who were members of his local, perform the work of installing the fiberglass units, pursuant to the composite crew provisions of the agreement. McGuire rejected this demand, and stated that the work would be performed by Kimstock's installers, who were represented by the Carpen- ters Union. When Reitz protested to Duval that members of the Carpenters Union had traditionally installed the fiberglass units in their entirety for over 9 years, Duval remarked that the plumbers unions had not asserted any claim to perform this work because they had regarded the fiberglass tubs and showers a passing fad. The Interland representatives asserted that they could not afford to have the job shut down. Before the meeting concluded, Duval stated that if Kimstock insisted on installing the fiberglass units, it might as well be prepared to hook up the wastes and overflows. Respondents contend that Bolle was at all times the primary employer and that even if the statements by the business agent at both meetings were coercive, they were directed to Bolle in furtherance of a lawful primary work- preservation clause contained in the collective-bargaining agreement between Bolle and Respondents. Moreover, Respondents contend that even if Bolle is held to be a secondary employer, Duval's statements were not coercive. In support of this contention, Respondents assert that, in the context in which the statements were made, Duval's statement at the October 20 meeting could not reasonably be construed as a threat to withhold the services of members of his local. Duval testified that his statement followed, and was made in response to, a remark by a carpenter's business agent that he would not permit carpenters to work with plumbers in the installation of the fiberglass units. Thus, Respondents argue, the import of Duval's statement was that if carpenters were unwilling to work with plumbers, they would find themselves working alone, and would therefore encounter difficulty in remov- ing the protuding valves and installing backups. This is a strained and unrealistic interpretation of Duval's state- ments. There is no question but that Respondent District Council, and its affiliated locals, including Respondent Locals 230 and 582, were engaged in a primary dispute with Kimstock in regard to the delivery and installation of fiberglass units at various jobsites throughout southern California, work which these Respondents claimed to be entitled to perform. To this end, Respondent Unions had entered into the so-called work-preservation clauses. When these clauses failed to accomplish the desired result, Duval sought to exert pressure on the plumbing contractors, as well as the general contractors, to force the general contractor, in this instance, Interland, to cease doing business with Kimstock. In this context, Duval's state- ments to Bolle are more reasonably construed as a threat to withhold the services of the plumbers in order to exert pressure on Bolle and Interland to cease doing business with Kimstock. These threats constituted an effort to disrupt and interfere with the construction project by enmeshing both neutral employers in the dispute between Respondent Unions and Kimstock. On the basis of the right-to-control test, which, as of this writing, the Board has not repudiated, and which is binding on me, notwith- standing the holding of the various circuit courts,25 it is evident that, vis-a-vis Respondent Unions, Bolle and Interland were secondary or neutral employers. Under the right-of-control theory, Bolle was a neutral employer in 24 Although Wade denied making this statement, his denial is not sought by the Union. credited. The statement appears logical and consistent with the objective 25 Iowa Beef Packers, Inc., 144 NLRB 615. 1 SOUTHERN CALIFORNIA PIPE TRADES 727 that it had no right of control over the assignment of the disputed work, since Interland, the general contractor, had previously contracted with Kimstock for the purchase, delivery, and installation of the fiberglass units at the jobsite. If the object of Duval's statements was to force assignment of the disputed work to members of Local 582, such conduct, directed toward a neutral person in furtherance of such object constitutes a violation of Section 8(b)(4)(ii)(B) of the Act 26 Respondent District Council No. 16's contention that, even if it should be found that Respondents Local 230 and 582 have engaged in unfair labor practices within the meaning of Section 8(b)(4)(ii)(B), their conduct cannot be imputed to it, is considered later. 2. The assessment of damages against Orcon and Leaverton On or about July 21, 1971, Kimstock entered into an agreement with Christiana Community Builders, Inc., Christiana herein, a general contractor, for the sale, delivery, and installation of fiberglass tubs and showers at the general contractor's Tierrasanta jobsite, in San Diego, California. On or about July 9, Bob Leaverton Plumbing, Inc., a plumbing contractor, subject to the collective- bargaining agreement, entered into a contract with Christiana to perform the plumbing work at the Tierrasan- ta jobsite. This contract expressly provided that fiberglass tubs and showers were to be installed and drilled by other persons. Employees of Kimstock installed the fiberglass showers with strainers at the Tierrasantajobsite. Respondent Local 230 filed a grievance against Leaverton, claiming a violation of section III, paragraph 13 of the collective- bargaining agreement,- in that Leaverton had permitted fiberglass shower stalls with strainers to be installed at the jobsite by employees other than unit employees covered by the collective-bargaining agreement. On about September 24, a joint subcommittee, composed of representatives of Respondent Employers and Respondent District Council, assessed damages in the sum of $174.60, against Leaverton for the violation. On or about May 18, 1971, Kimstock entered into an agreement with Morley Construction Company, Morley herein, a general contractor, for the sale, delivery, and installation of fiberglass tubs and showers at the general contractor's Highridge Apartment jobsite, at Palos Verdes Peninsula, California., On or about April 29, Morley had entered into an agreement with Orcon, Inc., Orcon herein, a plumbing contractor, subject to the collective-bargaining agreement, to perform plumbing work at this jobsite. The contract expressly provided that the fiberglass tubs and showers would be supplied, drilled, and set by others. Plumbers Local 78, a local affiliated with Respondent District Council, filed a grievance against Orcon, claiming a violation of section III, paragraph 13 of the collective- bargaining agreement, in that Orcon had permitted the installation of fiberglass tubs and showers at the general contractor's Palos Verdes Peninsula jobsite, without utilizing a composite crew, consisting of employees who were members of the Plumbers Union, and employees who were members of the Carpenters Union. On or about October 12, 1971, a joint subcommittee, composed of representatives of Respondent District Council and Res- pondent Employers Council, assessed damages against Orcon in the sum of $330. Local 78 appealed this decision and on December 20, 1971, before any hearing was held on the appeal, Orcon paid an additional sum in the amount of $630.30 to the Union's retirement trust fund. The record leaves no doubt that Respondent Unions had demanded that Orcon and Leaverton perform the work which Kimstock's employees had performed at each of these jobsites despite the fact that the fiberglass units had been purchased by the general contractors from Kimstock under an agreement for the delivery and installation by Kimstock. Thus, it is evident that neither Orcon nor Leaverton were in a position to comply with the Unions' demands. Both plumbing contractors were secondary or neutral employers insofar as the dispute between the Unions and Kimstock was concerned, enmeshed between the conflicting demands of the Unions and Kimstock's customers, the general contractors. On the basis of the right-to-control test, neither Orcon nor Leaverton could resolve the controversy over the disputed Work. It is clear that the object of the assessment of damages against Orcon and Leaverton was to force these neutrals by economic coercion to refuse to perform work at jobsites at which Kimstock's installers were employed, in order to place pressure on Kimstock's customers, the general contractors, to cease doing business with Kimstock. Relying upon the American Boiler cases,27 Respondents contend that the assessment of damages does not consti- tute conduct proscribed by Section 8(b)(4)(ii)(B) of the Act. This presupposes that the assessment of damages against Orcon and Leaverton was merely an attempt to enforce a legitimate contract provision designed to pre- serve wage rates and fringe benefits in the event Kim- stock's employees were permitted to perform the work. Under paragraph 13, section III of the collective-bargain- ing agreement, however, a contractor signatory to the agreement agrees to pay the equivalent of wage rates and fringe benefits lost by employees covered by the agreement into the retirement trust fund of the Plumbing and Piping Industry of Southern California, where work which would normally have been performed by unit employees, is performed by employees of contractors who are not parties to the agreement. In such situations, however, wage rates and fringe benefits paid into the trust fund do notinure to the benefit of the unit employees, here, the employees of Orcon and Leaverton, who were allegedly deprived of the work, but to the industry trust fund generally. The only way in which Orcon and Leaverton, or signatory employers similarly situated, could avoid payment of the wage rate and fringe benefit under paragraph 13, section III of the agreement, would be if it performed the work itself, something which it was unable to do since this work had been contracted by the general contractor to Kimstock. It is thus evident that the real objective of this language was 26 N.L.R.B. v. Local 825, International Union of Operating Engineers 27 United Association Pipe Fitters Local Union No. 455 (American Boiler [Burns and Roe], 400 U.S. 297. Manufacturers Association), 154 NLRB 285, 291; 167 NLRB 602, 603. 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to penalize signatory contractors, such as Orcon and Leaverton, for failing to insist on performing the disputed work by exerting pressure on Kimstock's customers to accomplish this end. Since neither Orcon nor Leaverton had the right to control the awarding or assignment of the disputed work, it must be evident that Respondent District Council's real objective in assessing damages against them was to achieve secondary objectives, and that this action was calculated to dissuade Orcon and Leaverton from performing work at the jobsites in order to force Kimstock's customers to cease doing business with Kimstock or, as Union Representative Schell testified, to compel the plumbing contractor to surcharge the general contractor with the amount of the damages assessed, thereby forcing the general contractor to cease awarding the disputed work to Kimstock. Under all the circumstances, the provision for the assessment of damages provided for under section III, subsection 13, constituted a penalty designed to further a secondary objective, hence, coercive, and violative of Section 8(b)(4)(ii)(B) of the Act 28 Respondent Unions reliance upon the American Boiler cases is misplaced. As pointed out by the Board in the Continental case,29 the fine in the former cases was imposed for the purpose of preserving unit work, a lawful primary objective, which, even if coercive, was not prohibited by Section 8(b)(4)(ii)(B). Since it has been found here that the provision for the assessment of damages was designed to achieve a secondary object, i.e., to acquire work for unit employees which they had not traditionally and customarily performed, and to penalize secondary or neutral employers for failing to insist on the performance of the disputed work, over the awarding or assignment of which they had no right to control, to force the general contractors to cease doing business with Kimstock, the American Boiler cases are inapposite. It is, therefore, found that, by entering into and enforcing the provisions of the collective-bargaining agreement for assessment of damages, and by assessing such damages against Orcon and Leaverton for the purposes above described, Respondent Unions have engaged in unfair labor practices within the meaning of Section 8(b)(4)(ii)(B) of the Act. F. Respondent District Council's Responsibility for the Unfair Labor Practices Committed by Respondent Locals 582 and 230 Respondent District Council contends that even if Respondent Locals 582 and 230 are found to have violated Section 8(b)(4)(ii)(B), a finding is not necessarily warranted that it too has violated this section of the Act. The District Council, it maintains, is a separate labor organization and neither of the locals was acting as its agent when it engaged in the conduct found to be unlawful . This Respondent relies on the uncontroverted testimony of Everett E. Schell, business manager of the District Council. According to him, there are 17 locals affiliated with the District Council, each of which elects three delegates to the Council, who in turn elect its officers, of whom Schell and his assistant are the only full-time officers. The delegates to the Council elect a negotiating commit- tee, and the collective-bargaining agreement negotiated by the committee is executed by the District Council. Neither Schell nor his assistant are members of the negotiating committee, although Schell acts as secretary. The delegates to the Council decide on the proposals to be submitted to the employers. Schell receives his instructions from the negotiating committee. When negotiations have been completed, the District Council prepares the formal agreement, distributes copies to the parties and performs other ministerial functions. The agreement is ratified by the delegates to the District Council. On occasion, Schell has been called on by local unions affiliated with the District Council for an opinion or advice regarding the interpretation given particular provisions of the agreement in the course of negotiations. The District Council performs no other function in the administration of the labor agreement. In the matter of charges against contractors for alleged breaches of the agreement, including those arising out of violations of section III, subparagraphs 12 and 13, these charges are filed by the local involved, with copies to the District Council. Hearings on such charges are held before the joint arbitration board provided for in the collective- bargaining agreement. The District Council has no authority to file charges for alleged violations of the collective-bargaining agreement, such authority being lodged in the local union, which need not secure approval of the District Council to file charges. The District Council cannot decide whether arbitration shall be invoked by the local union. Although Schell serves as secretary of this board, his duties are limited to recording minutes of the meeting and issuing official communications on behalf of the Board. He does not vote in proceedings before the joint arbitration board. Schell's assistant acts in a similar capacity on the subcommittee of the joint arbitration board, on behalf of the joint arbitration board, with regard to alleged violations of the fabrication provisions of the agreement. The Council maintains a separate office from the affiliated locals, with separate telephone and stationery, and files separate reports with the Department of Labor, as well as tax returns. Each local union has exclusive geographical jurisdiction in its own territory, and has no jurisdiction in the territory of any other local. No affiliated local is required to abide by decisions made by the delegates of the District Council. Only the local union may decide to call a strike, and the District Council has no authority to veto such a decision. On the basis of this testimony, Respondent District Council contends that it may not be held responsible for any unfair labor practices in which any of its affiliated locals may be found to have engaged. With regard to the 8(e) violations, it is obvious that, 28 Sheet Metal Workers International Association, Local Union No. 223 (Continental Air Filters Company), 196 NLRB 55; Orange Belt District Council of Painters No. 48 (Calhoun Drywall Company), 153 NLRB 1196, 1200. 29 See fn. 28. SOUTHERN CALIFORNIA PIPE TRADES 729 having signed the collective-bargaining agreement, without limitation or qualification, whether acting in a representa- tive capacity on behalf of its affiliated locals or on its own behalf as a separate labor organization, the District Council was a signatory to an agreement containing an invalid work-preservation clause, violative of Section 8(e). By executing and enforcing such an agreement , Respon- dent District Council has engaged in unfair labor practices within the meaning of said section. Insofar as the 8(b)(4)(ii)(B) violations involving the coercive conduct against Bolle Mechanical Contractors and Bob Leaverton Plumbing, Inc., arising out of the threats to withhold services of members of the named locals, there was no showing that the District Council in any was engaged or participated in the conduct com- plained of or that either Respondent Local 582 or Respondent Local 230, was acting as agent of the District Council or in any representative capacity on its behalf or under circumstances which would afford reasonable cause to believe that either of said Respondent Locals was so acting with the knowledge, consent, or acquiescence of the District Council. While these two locals may have been acting in the interest , of, and for the benefit of the other affiliated locals, in furtherance of the purposes of the provisions of section III, subparagraphs 12 and 13, of the collective-bargaining agreement, this is not sufficient to render the District Council liable under general principles of agency or of collective bargaining. The assessment of damages against Orcon, Inc. and Bob Leaverton Plumbing, Inc. stands on a different footing. Here, although the grievances were presumably filed by the respective local unions, and the matters heard before the Joint Arbitration Board, the damages were, to all intents and purposes, assessed by representatives of the District Council and paid into the industry trust fund for the benefit of union members. It is, therefore found that, by the assessment of damages against Orcon, Inc. and Bob Leaverton Plumbing, Inc. in the circumstan ces disclosed, Respondent District Council No. 16 has engaged in unfair labor practices within the meaning of Section 8(b)(4)(ii)(B) of the Act. IV. THE EFFECT OF TIIE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents, set forth in section IIl, above, occurring in connection with the operations of the Employers described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. TIM REMEDY Having found that Respondents, Southern California Pipe Trades District Council No. 16 of the United Association, Plumbers & Steamfitters Local No. 582, Plumbers and Pipefitters Local No. 230, and Plumbing- Heating and Piping Employers Council of Southern California, Inc. have engaged in unfair labor practices within the meaning of Section 8 (e), and that said Respondent Unions have engaged in unfair labor practices within the meaning of Section 8(b)(4)(ii)(B) of the Act, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Plumbing-Heating and Pipmg Employers Council of Southern California, Inc., Respondent Employers Council herein, and Kimstock Division, Tridair Industries, Inc., Kimstock herein, are, and at all times material herein have been, employers engaged in commerce and in businesses affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. Bolle Mechanical Contractors, Bob Leaverton Plumbing, Inc., and Orcon, Inc., are, and at all times material herein have been, employer -members of Respondent Employers Council. 2. Southern California Pipe Trades District Council No. 16 of the United Association, Respondent District Council herein, and Plumbers & Steamfitters Local No. 582, and Plumbers and Pipefitters Local No. 230, Respon- dent Unions herein, each are, and at all times material herein have been, labor organizations within the meaning of Section 2(5) of the Act. 3. By entering into, maintaining , giving effect to, and enforcing or attempting to enforce , the provisions of section III, paragraphs 12 and 13, of the 1969-72 Plumbing-Heating and Pipmg Industry of Southern Cali- fornia Agreement, Respondent Employers Council and Respondent Unions herein, are engaging in, and have engaged in, unfair labor practices within the meaning of Section 8(e) of the Act. 4. By threatening, coercing, and restraining Bolle Mechanical Contractors and Bob Leaverton Plumbing, Inc., persons - engaged in commerce, where an object thereof was to cause said persons to cease using, selling, handling, transporting, or otherwise dealing in the prod- ucts or services of Kimstock, Respondent Local No. 582 and Respondent Local No. 230 have engaged and are engaging in unfair labor practices within the meaning of Section 8(b)(4)(ii)(B) of the Act. 5. By assessing damages against Orcon, Inc. and Bob Leaverton Plumbing, Inc., persons engaged in commerce, for failure to comply with the provisions of section III, paragraphs 12 and 13, of the 1969-72 Plumbing-Heating and Piping Industry of Southern California Agreement, where an object thereof was to cause said persons to cease using, selling, handling, transporting or otherwise dealing in the products or services of Kimstock, Respondent District Council'No. 16 has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(4)(ii)(B) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.)