Metallic Lathers Union of N.Y.

METALLIC LATHERS UNION OF N.Y. 631 Metallic Lathers Union of New York and Vicinity, Local 46 of the Wood, Wire and Metal Lathers International Union, AFL-CIO and Expanded Metal Engineering Co. and Special Sections, Inc. Cases 29-CC-320, 29-CC-322, and 29-CB-1260 wages paid to the lather that Special Sections was pressured to hire, he inadvertently failed to include this provision in his recommended Order. We have therefore modified the Order to include such provision. We have also modified the Order and notice to include interest at 6 percent per annum. Cf. Isis Plumping & Heating Co., 138 NLRB 716. APPENDIX November 28, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On May 25, 1973, Administrative Law Judge John P. von Rohr issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions, brief in support of exceptions, and brief in support of the Administrative Law Judge's Decision. Respondent filed exceptions and a sup- porting brief and an answering brief to the General Counsel's exceptions. 1 ursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the Administrative Law Judge's rulings, findings, and conclusions and to adopt his recommended Order, with the modification indicated below.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that Respondent Metallic Lathers Union of New York and Vicinity, Local 46 of the Wood, Wire and Metal Lathers International Union, AFL-CIO, New York, New York, its officers, agents, successors, and assigns shall take the action set forth in the Administrative Law Judge's recommended Order as so modified: 1. Insert the following for paragraph 2(a) and reletter subsequent paragraphs accordingly: "Reimburse Special Sections, Inc., with interest at 6 percent per annum for the wages paid to John Duffy in excess of the wages he would have received for the work he actually performed and at the rate any employee would have been normally compensat- ed for such work." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. 1 Although the Administrative Law Judge provided in his recommended Remedy that Respondent reimburse Special Sections, Inc., for the excessive NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT engage in or induce or encourage individuals employed by Donaldson Material Corp., William J. Scully, Inc., Jeremiah Burns, Inc., Mars Associates, Inc., and Jacobson and Co., or any other employer, to engage in a strike or refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or perform any services; or restrain or coerce the above- named employers or other persons where an object in either case is to force or require any of the aforesaid employers, or any other employer or person, to cease doing business with Special Sections, Inc., and Expanded Metal Engineering Co. WE WILL NOT threaten, restrain, or coerce Special Sections, Inc., or the customers of Special Sections, Inc., and we will not induce or encourage the employees of these , customers not to handle or service any goods furnished or delivered by Special Sections, Inc., where, in either case, an object is to cause or attempt to cause Special Sections, Inc., to pay or deliver or agree to pay or deliver money or other thing of value, in the nature of an exaction, for services not performed or not to be performed. WE WILL reimburse Special Sections, Inc., with interest at 6 percent per annum for the payment of services which were not performed. METALLIC LATHERS UNION OF NEW YORK AND VICINITY, LOCAL 46, OF THE WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION, AFL-CIO (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- 207 NLRB No. 111 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ance with its provisions may be directed to the Board's Office, Fourth Floor, 16 Court Street, Brooklyn, New York 11201, Telephone 212-596-3535. DECISION STATEMENT OF THE CASE JOHN P. VON ROHR, Administrative Law Judge: Upon charges, duly filed', the General Counsel of the National Labor Relations Board, by the Regional Director for Region 29 (Brooklyn, New York) issued a consolidated complaint on August 9, 1972, against the Metallic Lathers Union of New York and Vicinity, Local 46, of the Wood, Wire and Metal Lathers International Union, AFL-CIO, herein called the Respondent or the Union, alleging that it had engaged in unfair labor practices in violation of Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended, herein called the Act. The Respondent filed an answer denying the allegations of unlawful conduct alleged in the complaint. Pursuant to notice, a hearing was held before Administrative Law Judge John P. von Rohr in Brooklyn, New York, on October 30 and 31, 1972. On December 11, 1972, pursuant to a charge filed on July 12, 1972, the said Regional Director issued a complaint against the said Respondent in Case 29-CB-1260, alleging that it had committed unfair labor practices within the meaning of Section 8(b)(6) of the Act. On February 12, 1973, I granted a motion of the General Counsel dated January 23, 1973, to consolidate this proceeding with the cases heard on October 30 and 31, 1972, and to reopen the hearing. Following an answer filed by the Respondent denying the commission of the further alleged unfair labor practices, the hearing was reopened on February 28, 1973, and concluded on March 1, 1973. An initial brief was received from the Respondent on Decem- ber 4, 1972, and a second brief was received from the Respondent on March 16, 1973. These have been carefully considered. Upon the entire record in this case, and from my observation of the witnesses, I hereby make the following: corporation with its principal office and place of business located in New York, New York, where it is engaged in the sale and distribution of processed steel and related products. During the year preceding the hearing herein, this employer purchased goods and materials valued in excess of $50,000 which were transported and delivered to it from points and places located outside of the State of New York. I find that Expanded Metal Engineering Co. is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED Metallic Lathers Union of New York and Vicinity, Local 46, of the Wood, Wire and Metal Lathers International Union, AFL-CIO, the Respondent herein, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts as to the 8(b)(4)(i) and (ii)(B) Allegations Unless otherwise noted, the facts pertaining to the above allegations are not in substantial dispute. Special Sections, Inc., whose president is Ernest Herzfeld, is primarily engaged in the sale and distribution of metal lathes, access tiers, and furring channels, all of which are in the building products category and are utilized in the building and construction industry. Excepting office employees and salesmen, at the times material hereto Special Sections had in its employ 3 truckdrivers and 10 warehousemen. Also at all times material hereto these employees were covered by a collective-bargaining agreement between the Company and Teamsters Local 810. Although Special Sections is principally a distributor (in the sense that it handles items manufactured by other companies), a relatively small facet of its business consists of the manufacturing of furring channels on its own premises. The entire manufacturing process is performed by an automatic machine which is operated by one of the warehouse employees. Describing this operation, Herzfeld testified: FINDINGS OF FACT 1. JURISDICTION Special Sections, Inc., is a New York corporation with its principal office and place of business located in New York, New York, where it is engaged in the manufacture, sale, and distribution of steel channels, metal lathes, and related products. During the year preceding the hearing herein, this employer purchased goods and materials valued in excess of $50,000 which were transported and delivered to it from points and places located outside the State of New York. I find that Special Sections, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Expanded Metal Engineering Co. is a New York 1 The charge in Case 29-CC-320 was filed on July 7, 1972, and the charge m Case 29-CC-322 was filed on July 12, 1972. You start out with a coil of steel which is on a reel and which goes through a role forming operation where it is being shaped into a V shape and consequently on the same operation it goes through a painting booth where it is painted and when it comes out it is automatically cut to the prescribed length. The dispute in this case arises over the cutting of furring channels, which work, as hereinafter noted, is claimed by the Respondent. However, although the above-described operation involves cutting of the channels, Respondent's attorney stated at the reopened hearing that this work was not claimed by the Union (R. 210) since it involved only the manufacturing process. It was then brought out that on occasion Special Sections was required to cut standard sized finished channels into shorter sections. This was accomplished by use of a cutting device called a radial METALLIC LATHERS UNION OF N.Y. 633 band saw, also operated by one of the Company's warehousemen. As thus clarified, the record reflects that it is the latter cutting operation that Respondent claims should be performed by one of its members. Concerning the cutting operation described above, Herzfeld testified that during the past 3 or 4 years his company engaged in this particular operation for approxi- mately only 2 to 4 weeks in any given year. He further testified that over the years it was the practice of his Company to hire a lather from the Respondent Union, usually through its hiring hall, to be on hand whenever the Company was engaged in the aforesaid cutting operation. He followed this practice, he said, because "it was common knowledge in the trade" that a lather would be required whenever there was cutting work to be performed. Significantly, however, the lathers thus hired by Special Sections performed no work whatsoever during the cutting periods and while they were on the Company's payroll 2 In this connection Herzfeld testified, "Usually when we had any lather on our payroll he usually came around on payday and collected his money." As to the cutting work itself, the machine which did this work was operated by a warehouseman, a member of the Teamsters Union, this notwithstanding the fact that a lather was on the payroll while the work was being performed. Turning to the more immediate events of the dispute herein, it was about February 1, 1972,3 that James Maher, Respondent's business representative, telephoned Herzfeld and demanded that he hire a lather in the shop within the next few days, otherwise he would instruct his fellow delegates and the shop stewards on various construction jobs not to accept material from Special Sections.4 Herzfeld replied that he did not have any work for a lather and that he did not intend to ei.iploy one unless he did have such work. It is undisputed that Respondent Union carried out the threat of its business agent within a day or two after the above conversation. Thus, it is preliminarily noted that William J. Scully, Inc. and Jeremiah Bums, Inc. are furring and lathing contractors who at this time were engaged in a subcontracting joint venture to perform certain work in the McGraw-Hill office building at Astor Plaza Place in New York City. The lathing employees of each of these employers at this time were covered by a collective- bargaining agreement between the said employers and the Respondent Union .5 On or about February 2 Special Sections dispatched one of its trucks to the McGraw-Hill jobsite to deliver materials which had been ordered for the job. Waiving testimony concerning any details as to what then occurred, the parties, including the Respondent, stipulated that at the aforesaid jobsite "Respondent ordered, instructed, requested and appealed to employees of Burns and Scully to refuse to handle materials from Special Sections." The parties further stipulated that a 2 Credited and unrefuted testimony of Herzfeld. 3 All dates hereinafter refer to the year 1972, unless otherwise indicated. A Credited testimony of Herzfeld. 5 The parties stipulated that these collective-bargaining agreements expired on June 30, 1972, and that thereafter an economic strike followed. This strike continued until September 9, 1972, at which time new contracts were signed. The parties stipulated further that these facts are also second and similar occurrence took place at the same jobsite about February 3.6 As a result of the foregoing conduct, Herzfeld changed his mind and on or about March 1, 1972, notified Respondent that he could use a lather. Union Representa- tive Maher thereupon brought a lather, one John Duffy, to Special Sections where he was hired by Herzfeld. Although Duffy remained in the employ of Special Sections from about March I to on or about June 1, 1972, it is undisputed that he never performed any type of lathing work. Duffy's employment by Special Sections during this period is the subject of an alleged 8(a)(6) violation, the pertinent details of which are discussed in connection with my considera- tion of this allegation later in this Decision. Suffice it to relate here that Herzfeld testified he finally discharged Duffy on June I because, as he put it, "I couldn't afford him." It was not long after Duffy's termination that Special Sections again became the target of Respondent Union. The conduct which Respondent thereafter engaged, as stipulated to by the General Counsel and the Respondent at the hearing, was comprised of the following: 1. At the times material hereto Mars Associates, Inc., was engaged in performing construction work on the Intermediate School at a Randall Avenue jobsite. On or about June 19, at the Randall site, Respondent ordered, instructed, requested, and appealed to the employees of Mars to refuse to handle material delivered from Special Sections. 2. At the times material hereto Donaldson Materials Corporation was engaged in performing construction work at Bloomingdale's Department Store, Garden City, Long Island. On or about June 19, at the Bloomingdale site, Respondent ordered, instructed, requested, and appealed to the employees of Donaldson to refuse to handle material delivered from Special Sections. 3. At the times material hereto Jeremiah Bums, Inc., was engaged in performing construction work on Monte- rey Houses, Bronx, New York. On or about June 19, at the Monterey site, Respondent ordered, instructed, requested, and appealed to the employees of Burns to refuse to handle material delivered from Special Sections. 4. As heretofore noted, at the times material hereto Jeremiah Bums, Inc., and William J. Scully, Inc., were engaged in construction work at the McGraw-Hill (Astor Place) jobsite. On June 28, at the jobsite, Respondent ordered, instructed, requested, and appealed to the employ- ees of Burns and Scully to refuse to handle material delivered from Special Sections. On June 21, Herzfeld and various representatives of Respondent Union held a meeting at Respondent's office. Herzfeld testified that at this meeting he sought to obtain Respondent's agreement that he be permitted to operate his business without hiring a lather when "I did not need him." He testified that Maher responsed, however, that applicable to the other lathing contractors hereinafter discussed, namely Donaldson, Mars and Jacobson. 6 These stipulations were made in accordance with certain allegations set forth in para 12 of the complaint. It is noted that this allegation refers to the "Astor Place site," which undoubtedly is the same referred to in the testimony as the McGraw-Hill jobsite, the latter referring only to the name of the office building which was under construction at this site. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unless he rehired "the lather" (Duffy) he would instruct Herzfeld's customers and Respondent's stewards and foremen not to use materials from his company.7 As indicated above, Respondent subsequently engaged in this type conduct on June 28 at the Astor Place jobsite. Expanded Metal Engineering Company is engaged in selling various building products such as steel grating, furring channels, and metal lathes. This company does not engage in any manufacturing, but purchases the products sold and distributed by it from other manufacturing concerns. Arthur J. Griffith, the president of Expanded Metal, testified that in early April 1972, he received a visit from Mickey Brennan, then a Respondent Business Agent. Relating that Respondent had placed a lather in the employ of Special Sections, Brennan demanded that Griffith do likewise by hiring a lather at Expanded Metal. Griffith refused, stating that his employees were represent- ed by the Teamsters Union. Brennan thereupon stated that he would call the "bosses" of the various subcontracting companies with whom Expanded Metal did business and tell them to have their superintendents refuse any materials which might be delivered to any of their jobs by Expanded Metal. The conversation ended with Griffith stating that any such conduct would be illegal.8 Nothing further occurred between Respondent and Expanded Metal until on or about June 27, at which point Maher advised Griffith that he wanted to discuss "to whom we sold, what we sold and how much cutting we did." Griffith in effect replied that this was not the Respondent's business. Maher thereupon stated, "Well, we will stop your jobs, all the ones We can reach by tomorrow."9 The -day after the above conversation, the Respondent "ordered, instructed, requested and appealed to the employees of Jacobson and Co.," a contractor then engaged in performing construction work at Notre Dame College, Staten Island, New York, to refuse to handle material delivered by Expanded Metal to the Notre Dame jobsite.1o On August 8, 1972, Respondent consented to a tempo- rary restraining order and it appears that it has not since engaged in any further conduct of the nature described above. B. Conclusions as to the 8(b)(4)(i) and (ii)(B) Allegations Article II, subsection I, of Respondent's collective- bargaining agreement with the Metallic Furring and Lathering Contractors, of which Donaldson, Scully, Burns, 7 On cross-examination Maher conceded telling Herzfeld that unless he hired a lather, he (Maher) would instruct employees to picket him or to, refuse to handle or accept his goods. 8 The above conversation is set forth in accordance with the credited and unrefuted testimony of Griffith. - 9 Maher` did not speak directly with Griffith, who was out when he called. However, Maher's statements and the Company's reply was relayed through one of Griffith's subordinates in two separate conversations. Although the testimony came in as heresay, there was no objection to it I find the communications between the Respondent and the Company were as substantially set forth above. 10 Stipulation, of the parties. After the above incident, Respondent ascertained that ExpandedMetal was only a distributor and that it did not engage in the manufacture of furring channels or any other product. It thereafter did not engage in any further activities directed against this Mars, and Jacobson are parties, in part provides that the "Work Covered" thereunder is to include: The cutting, assembling, installation and/or erection by any and all methods of all metal furring ... . Denying that the conduct described in the foregoing section is unlawful secondary boycott activity, Respondent points to the above provision and contends that "The sole objective [of such activity] was to make certain that a lather be employed for the cutting of furring channels or the fabrication of material covered by the collective- bargaining agreement whether on the jobsite or in the shop."" In the first place, I am persuaded that the work purportedly sought by Respondent here (i.e., that of cutting furring channels in plants of manufacturers) is not covered by the above agreement. Thus, article I of the Respondent's collective-bargaining agreement clearly re- flects that the type of cutting work referred to in article II, subsection I, above, is of the ,type that is performed by lathing subcontractors who are engaged in construction on a jobsite.12 Accordingly, I do not believe that Respondent here was concerned about any genuine work preservation. In any event, however, the so-called "preservation of work" argument was recently considered and rejected by the Board in an analogous case and one which appears to be clearly controlling here, i.e., Local Union No. 438, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry (George Koch Sons, Inc.) 201 NLRB 59.13 In that case the Board adhered to its so- called right-of-control test and stated as follows: In a situation, as here, where the pressured employer cannot himself accede to the union's wishes, the pressure is secondary because it is undertaken for its effect elsewhere. The fact that its object was work preservation standing alone is not sufficient to isolate its action if, as we have found here, it is directed to a neutral. There can be no doubt but that the primary dispute here was between Respondent and employers Expanded Metal and Special Sections, the crux of the dispute' being Respondent's insistance that these employers engage its members in their employ for the alleged purpose of performing cutting work in their plants. Clearly, Donald- son, Scully, Burns, Mars, and Jacobson were the neutral or secondary employers. They were obviously powerless to accede to Respondent's actions. Accordingly, I find that Respondent's conduct in inducing and encouraging indi- viduals employed by Burns, Scully, Mars, Donaldson, and employer. 13 Resp. br., pp 8-9. 12 Thus article I of the contract, headed "Territory Covered" provides as follows: This agreement shall apply on all buildings, protects or work on ships, boats, tunnels, roads, swimming pools. etc., and all alterations and other structures in the course of construction in Greater New York, Nassau, Suffolk Counties, all of Westchester County and part of Rockland County. [Emphasis supplied.] 13 See also a companion decision , Local No. 742, United Brotherhood of Carpenters and Joiners of America (J. L Simmons Company, Inc), 201 NLRB 70. The companion Koch and Simmons cases were decided and issued after the hearing and subsequent to the filing of Respondent's brief in the secondary boycott cases herein. METALLIC LATHERS UNION OF N.Y. 635 Jacobson, the secondary employers, in the respects and on the occasions heretofore noted, was for the purpose of forcing them to cease doing business with Expanded Metal and Special Sections, this constituting secondary action which I find was unlawful under Section 8(b)(4)(i) and (ii)(6).14 C. The Facts as to the 8(b)(6) Allegation To briefly recapitulate, it will be recalled that about February 1, 1972, Respondent Business Representative James Maher spoke to President Herzfeld and demanded that he employ a lather to' work at the Special Sections plant. When Herzfeld refused, Respondent sought to enforce this demand by engaging in the secondary activity heretofore described. Special Sections finally capitulated to this pressure and notified Respondent that it would hire one of its members. It was about March 1 that Maher brought Duffy to the Special Sections plant as the member selected to be put in the Company's employ.15 When the subject was brought up as to what type of work Duffy was to perform, Herzfeld told Maher that he could not perform any physical or production type work because this was being performed by the warehouse employees who were represented by the Teamsters Union. Maher thereupon suggested that he could be utilized for office work, job promotions, running errands, answering telephones, and the like.16 Duffy was assigned to Harold Finch, the office manager, throughout the 3 months of his employ with Special Sections. During this period he almost always wore a business suit rather than work clothes. The first job given to him by Finch was that of writing up customers orders taken over the telephone. Testifying that Duffy was unfamiliar with various terminology used in the industry, Finch said that after a week of attempting to train Duffy in this work he still did not, perform properly and made too many errors.17 At this point Duffy told him, he said, that he could not do this kind of work, whereupon he assigned him to the job of addressing envelopes.'8 According to the unrefuted testimony of Finch, three or four days later Duffy refused to continue with this assignment, stating that the work was "demeaning." Finch credibly testified that when he thereupon asked Duffy what he was there for, Duffy replied that he should "ask Local 46." It is undisputed that for the remainder of his employ- ment with Special Sections (or approximately 10 weeks) Duffy was assigned to deliver company supplies and materials, usually in the company station wagon, to various construction jobsites in and around New York City and Long Island. He also performed such miscellaneous errands as going to the' bank. However, Finch credibly testified that not only did Duffy spend considerably longer 14' See Local 636, United Association of Journeymen and Apprentices of the Plumbing and' Pipe Fitting Industry , (Mechanical Contractors Association of Detroit, Inc.), 177 NLRB 189 ; NLRB. v. Local3, International Brotherhood of Electrical Workers (New York Telephone Co.), 477 F 2d 260 (C.A. 2, 1973), enfg. 197 NLRB 328. 15 The record does not reflect any particular reason for Respondent's so selecting Duffy. 16 Credited testimony of Herzfeld 17 Duffy conceded that he had difficulty in performing this work. 18 This involved the sending of literature to various contractors in time than necessary in making these deliveries, but that on average the time thus spent amounted to only 3 or 4 hours per day. Although Duffy usually put in an 8-hour day, Finch testified that during the remainder of this time "he would either sit around, stand around or walk around himself, really doing nothing ... there were times in between that he would use the Company telephone." 19 In about the latter part of May, not long before Duffy's termination, President Herzfeld instructed Duffy to go to the Monterey Housing jobsite where he was to paint some rusty furring channels which had been delivered by Special Sections. It is undisputed that Duffy refused to accept this assignment. Herzfeld credibly testified that Duffy cited the work as being "demeaning' as the reason for his refusal. I have no doubt, however, as Duffy testified, that prior to refusing this assignment he checked with a Respondent business agent to ascertain whether the painting work was within the Union's jurisdiction. Duffy said that the business agent advised him that "you are not supposed to go on the jobsite and become a painter." So much for the history of Duffy's 3 months' employ- ment with Respondent. It should be recalled, however, that Respondent resumed its secondary activity against Special Sections shortly after Duffy's discharge about June 1. Upon the entire record I find, as indeed Respondent's brief appears to concede, that the object of this activity was to require Special Sections to rehire Duffy.20 D. Conclusions as to the 8(b)(6) Allegations Section 8(b)(6) of the Act provides that it shall be an unfair labor practice for a labor organization or its agents: to, cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction , for services which are not performed or not to be performed. Contending that it did not violate the Act by the conduct described above, Respondent relies on the landmark Supreme Court decisions in the companion cases of American Newspaper Publishers Association v. NLRB, 345 U.S. 100 (1953), and N.L.R.A v. Gamble Enterprises, Inc., 345 U.S. 117 (1953).21 The General Counsel, on the other hand, contends that these cases are distinguishable from the case at bar. For the reasons stated below, it is my view that the General Counsel's position is correct. The dispute in the American Newspaper case arose out of the union's insistance that certain publisher-employers, with whom it had a longstanding collective-bargaining relationship, pay their composing room employees for engaging in the time-honored practice of setting "bogus type." This so-called "made work" had no useful value to the employers and was characterized by the Court as a connection with a company advertising and selling campaign. 19 It is undisputed that at this time Duffy was also the president of the Parimutual Ticket Agents Union. The record reflects that on a number of occasions, during his working hours, he utilized a company telephone to conduct business for this union. 20 Or, at the very least, to require Special Sections to employ one other of its members. 21 It does not appear that there have been any further Board or court decisions involving Section 8(a)(6) of the Act since the above Supreme Court decisions. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "wasteful procedure." Nevertheless, in finding that the Union's insistance upon continuation of this practice did not violate Section 8(b)(6), the Court, after reviewing the legislative history, stated: The substitution of the present Section 8(b)(6) for the definition compels the conclusion that Section 8(b)(6) means what the court below has said it means. The act now -limits its condemnation to instances where a labor organization or its agents exact pay from an employer in return for services not performed or not to be performed. Thus, where work is done by an employee with the employer's consent, a labor organizations demand that the employee be compensated for time spent in doing the disputed work does not become an unfair labor practice. However, the Court went on to say: Section 8(b)(6) leaves to collective bargaining the determination of what, if any work, including bona fide "made work," shall be included as compensable services and what rate of compensation shall be paid for it. [Emphasis supplied.] The Gamble case, supra, held that the Musicians Union did not violate Section 8(b)(6) of the Act by insisting that an employer of a theatre chain employ a local orchestra to play in connection with certain programs, even though the theatre management did not need or want to employ that orchestra. In so holding the Court stated as follows: We are not' dealing here with offers of mere "token" or nominal services. The proposals before us were appropriately treated by the Board as offers in good faith of substantial performances by competent musi- cians. There is no reason to think that sham can be substituted for substance under Section 8(b)(6) any more than under any other statute. Payments for "standing-by," or for the substantial equivalent of "standing-by," are not payments for services per- formed, but when an employer receives a bona fide offer of competent performance of relevant services it remains for the employer, through free and fair negotiations, to determine whether such offer shall be accepted and what compensation shall be paid for the work done. [Emphasis supplied.] Turning to the application of these rulings, I would preliminarily point out that the factual situation in the present case is far different from those presented in the American Newspaper and Gamble cases. Thus, in each of the cited cases it is noteworthy that the respective unions and employers had -long established collective-bargaining and contractual relationships, and further, that in both cases the services offered by the Unions were of the specialized "relevant" type which they had traditionally provided. While the absence of a collective-bargaining relationship here is undisputed, the nature of the services purportedly offered by Respondent in this case requires 22 Jeremiah Burns, president of the Jerenuah Burns Company and also president of the Metal Furring and Lathering Contractors Association, gave some rather vague testimony to the effect that "years ago" the Association reached an agreement with the Respondent that lathers would be used to cut material in manufacturing plants. However, neither Burns or the members of the Association are manufacturing employers and there is no evidence that lathers in fact ever performed this work in manufacturing some further elaboration. Assuming that Respondent here in fact sought to provide lathing services to the employees here involved, it is first noted that members of Respondent are engaged in a highly specialized trade. Further, and as reflected by the contracts in evidence herein, it is clear that Respondent contractually provides lathing services to lathing employers (generally subcontractors) in the con- struction industry and that these services are performed on the jobsite. Significantly, there is no evidence whatsoever that members of the Respondent in fact are employed or work at their trade, in the plants or shops of manufacturing employers, such as Special Sections.22 In the present case, it is clear that Special Sections has no use for the specialized skill of a lather. Suffice it to note that on the few occasions that it did engage in the cutting of furring channels, this was accomplished by the use of a bandsaw which was operated by a relatively nonskilled warehouse employee who belonged to the unit represented by the Teamsters Union. Therefore, and in view of the absence of even any prospective need for the services of a lather, I am persuaded and find that in this case the Respondent's demand did not, in the words of the Court, constitute "a bona fide offer of competent performance of ' relevant services." 23 Apart from the foregoing, the evidence in this case reflects an even more compelling reason for finding that the Respondent did not meet the criteria cited. Thus, assuming the 'seldom-performed cutting work at Special Sections to be a lather-related function, Respondent well knew that this was being performed by a Teamsters employee who belonged to the Company recognized collective-bargaining unit. In recognition of the fact that the Company therefore could not assign this work to one of its members, Respondent - Business Representative Maher, in nonetheless insisting that Duffy be hired, proposed that he be assigned to office work, job promotions, answering telephones, or running errands. As earlier related, however, it took a period of only 1 week to prove that Duffy was not qualified to perform office work. There subsequently arose the rather ludicrous situation of where this high-priced employee24 was assigned to the menial task of addressing envelopes, a job which he finally refused to further perform on the understandable ground that it was "demeaning." Furthermore, he later refused an assignment to repaint furring channels at a jobsite; and although he in fact did engage in some delivery work for the Company, the record reflects that this only took about 50 percent of his time, the balance of his 8-hour day being spent idly standing around. In short, I think it clear that'Respondent's offer to have Duffy provide the aforementioned miscellaneous services was but a camouflage to get him on the Company's payroll, this regardless of the fact that the purported services were not relevant to any company need. Finally, further reference is made to the heretofore quoted language of the Court in the American Newspaper plants. As noted earlier in this decision, although Special Sections on some occasions put a lather on its payroll, this lather did not perform any work but merely collected his pay. 23 Emphasis supplied. 24 Duffy was paid the prevailing craft role of $400 per week. This was higher than the salary paid to the office manager who was to purportedly act as his supervisor. METALLIC LATHERS UNION OF N.Y. 637 case that "Section 8(b)(6). leaves to collective bargaining the determination of what, if any work, including bona fide `made work,' shall be included as compensable services and what rate of compensation shall be paid for it.", Needless to say, Special Sections was in no position to bargain with Respondent for the services of a lather or with respect to any other term or condition of employment. Indeed, inasmuch as the Teamsters Union was recognized as the bargaining agent, Special Sections may well have run afoul of Section 8(a)(2) of the Act had it undertaken to do so. In sum, I find that by the conduct related herein the Respondent caused and attempted to cause Special Sections, Inc., to pay money or other things of value, in the nature of an exaction, for services not performed in violation of Section 8(b)(6) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section iii, 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. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(b)(4)(i) and (ii)(B), and Section 8(b)(6) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In view of the nature and extent of the unfair labor practices committed, I shall recommend that Respondent be required to reimburse Special Sections, Inc., for the monetary loss suffered by it due to the unlawful Section 8(b)(6) conduct herein found. Accordingly, it is ordered that Special Sections, Inc., be reimbursed for the wages paid to Duffy in excess of the wages which would have been paid to him for the work actually performed and at the rate any employee would have been normally compen- sated for this work.25 CONCLUSIONS OF LAW 1. Special Sections, Inc., and Expanded Metal Engi- neering Co. are employers engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. 2. Metallic Lathers Union of New York and Vicinity, Local 46, of the Wood, Wire and Metal Lathers Interna- tional Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By inducing and encouraging employees of Donald- son Materials Corp., William J. Scully, Inc., Jeremiah Bums, Inc., Mars Associates, Inc., and Jacobson and Co. 25 In the absence of a brief from the General Counsel's representative, which he failed to provide although one was requested, I do not have the General Counsel's position with respect to the matter of an appropriate remedy. 26 In the event no exceptions are filed to this Recommended Order as to engage in a strike or refusal in the course of their employment to perform services, and by restraining and coercing the aforesaid employers with the object of forcing or requiring them to cease doing business with Special Sections, Inc., and Expanded Metal Engineering Co., the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. 4. By threatening, restraining, and coercing the custom- ers of Special Sections, Inc., by inducing the employees of these customers not to handle or service any goods furnished or delivered to them by Special Sections, Inc., and by threatening Special Sections, Inc., that it would engage in the foregoing activity, Respondent has caused Special Sections, Inc., to deliver money or other thing of value, in the nature of an exaction, for services not performed in violation of Section 8(b)(6) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby make the following recommended: ORDER 26 Respondent Metallic Lathers Union of New York and Vicinity, Local 46, of the Wood, Wire and Metal Lathers International Union, AFL-CIO, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Inducing and encouraging employees of Donaldson Materials Corp., William J. Scully, Inc., Jeremiah Burns, Inc., Mars Associates, Inc., Jacobson and Co., or any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or a refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on goods, articles, materials, or commodities, or to perform any services; and from coercing or restraining the aforenamed employers, or any other person, where in either case an object thereof is to force or require Donaldson Material Corp., William J. Scully, Inc., Jeremiah Burns, Inc., Mars Associates, Inc., and Jacobson and Co., to cease doing business with Special Sections, Inc., or Expanded Metal Engineering Co. (b) Coercing or threatening Special Sections, Inc., or the above-named customers of Special Sections, Inc., or inducing or encouraging the employees of the said customers not to handle or service any goods or materials furnished by Special Sections, Inc., where an object is to cause Special Sections, Inc., to pay or deliver or agree to pay or deliver money or other thing of value, in the nature of an exaction, for services not performed or not to be performed. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions and Recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Post at its offices, meeting halls and hiring halls copies of the attached notice marked "Appendix."27 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Additional copies of the notice shall be signed by the representative of the Respondent Union and forthwith returned to the Regional Director for Region 29. These notices shall be posted, Special Sections, Inc., willing, at all places where notices to its employees are customarily posted. (c) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order what steps the Respondent has taken to comply herewith. 27 In the event that the Board's 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."