Plumbers & Pipefitters Local 230

PLUMBERS & PIPEFITTERS LOCAL 230 107 Plumbers and Pipefitters Local No. 230 (Hartig Plumbing Co. and Ameron Steel Producing Divi- sion) andJones, Jones and Jones Imperial County Building and Construction Trades Council (Hartig Plumbing Co. and Ameron Steel Producing Division) and Jones, Jones and Jones. Cases 21-CC-1461 and 21-CC-1481 June 5, 1974 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On December 21, 1973, Administrative Law Judge Stanley Gilbert issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in opposition to the exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its 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 rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. Based upon a charge filed by Jones, Jones and Jones on June 22, 1973, as amended on July 27, 1973, the complaint in Case 21-CC-1481 was issued on July 31, 1973. Said complaint alleges that Imperial County Building and Construction Trades Council, hereinafter referred to as Respondent Council, violated Section 8(b)(4)(ii)(A) and (B) of the Act. Respondent Council, by its answer, denies that it committed the unfair labor practices alleged in said complaint. On August 2, 1973, I received a motion from the General Counsel to reopen the hearing in Case 21-CC-1461 and consolidate Case 21-CC-1481 with it for hearing. Said motion was unopposed and, based upon the representation therein that said cases involve the identical individuals and factual situation, I issued an order on August 27, 1973, granting General Counsel's motion and reopened the hearing on September 17, 1973, in Los Angeles, California. In said hearing in the consolidated cases on September 17, 1973, there were received into evidence the formal documents in Case 21-CC-1481, a stipulation of facts and a stipulation that the record in Case 21-CC-1461 be considered as part of the record in the consolidated cases. Briefs were received from the General Counsel and counsel for both of the Respondents on November 12, 1973. Upon the entire record' in this proceeding and my observation of the witnesses as they testified, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS INVOLVED HEREIN AND THEIR RELATIONSHIP 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 and hereby orders that Respondents Plumbers and Pipefitters Local No. 230, El Centro, California, and Imperial County Building and Construction Trades Council, El Centro, California, their officers, agents, and representatives, shall take the action set forth in the said recommended Order. DECISION STANLEY GILBERT, Administrative Law Judge: Based upon a charge filed on April 23,1973, in Case 21-CC-1461 by Jones, Jones and Jones, the complaint in said case was issued on May 3, 1973. Said complaint alleges that Plumbers and Pipefitters Local No. 230, hereinafter referred to as Respondent Union, violated Section 8(b)(4Xii)(B) of the Act. Respondent Union, by its answer, denies that it committed the unfair labor practices alleged in said complaint . Pursuant to notice, a hearing in said case was held in Riverside, California, on June 20, 1973, before the duly designated Administrative Law Judge. ' By unopposed motion dated November 9, 1973, General Counsel moved to correct the transcript and said motion is granted. Ameron Steel Producing Division, herein called Ameron, with an office and place of business located in Etiwanda, California, is engaged in business in the manufacture and sale of building materials for the building and construction industry. At all times material herein, Ameron has been engaged in the construction of a wire mill, known as the mill project, at the comer of Aten Road and Clark Road in El Centro, California. In connection with the construction of the mill project, Ameron has purchased and received, or will purchase and receive, goods, products, and services valued in excess of $50,000 directly from suppliers located outside the State of California. Hartig Plumbing Co., herein called Hartig, with its principal office and place of business at Upland, Califor- nia, is, and at all times material herein has been , engaged in business as a plumbing, heating, and air-conditioning subcontractor in Southern California. In connection with the construction of the mill project, Ameron contracted with Hartig for the furnishing and installation of office plumbing. Ameron and Hartig are, and each of them is, and at all times material herein have been, persons engaged in commerce, or in industries affecting commerce , within the meaning of Section 8(b)(4)(ii)(A) and (B) of the Act. 211 NLRB No. 25 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. THE LABOR ORGANIZATION INVOLVED As is admitted by Respondents, each of them is, and has been at all times material herein, a labor organization within the meaning of Sections 2(5) and 8(b) of the Act. III. THE UNFAIR LABOR PRACTICES A. Summary of Undisputed Facts Based upon admissions and stipulations in the record, it is found as follows: Ameron does not have a collective -bargaining agreement with either of Respondents , or any other labor organiza- tion, covering the type of work performed by Hartig at the mill project. Respondent Union is the appropriate union affiliated with Respondent Council having work jurisdiction over the type of work performed by Hartig at the mill project. Hartig is not signatory to any agreement with either of the Respondents or any other labor organization. Employees of Ameron do not perform work of the type performed by Hartig at the mill project. At all times material herein, Gene Anderson has been a business representative of Respondent Union acting on its behalf and has been, and is, an agent of Respondent Union within the meaning of Section 2(2) and 2(13) of the Act. Also, at all times material herein , Anderson has been secretary of Respondent Council acting on its behalf and has been, and is, an agent of Respondent Council within the meaning of Section 2(2) and 2(13) of the Act. B. The Issues 1. Did Respondent Union or Respondent Council, or both of them, threaten, coerce, and restrain Ameron in violation of Section 8(b)(4)(iiXB) of the Act by Anderson's conduct. 2. Are articles V and IX of said proposed contract violative of Section 8(e) of the Act in that the clauses are secondary in their object and not protected by the construction industry proviso to Section 8(e). 3. Did Respondent Council by demanding that Amer- on sign said contract under threat of picketing violate Section 8(b)(4)(ii)(A) and (B) of the Act because said contract is violative of Section 8(e) of the Act. C. Respondents' Conduct The matters relating to the issues herein are conversa- tions Anderson had with Lester Allison, Ameron's plant manager, and Rudolph Jansen, its construction manager, and a letter with an enclosed proposed contract between Respondent Council and Ameron sent by Respondent Council to Ameron. The project involved herein is the building of a manufacturing plant to be used by Ameron with respect to which Ameron is acting in the capacity of the general contractor (with Allison and Jansen supervising the construction). Allison testified that, in the last part of March or first of April 1973, Anderson came to the jobsite and represented himself to Allison as the business representative of Respondent Union. Anderson asked him if the plumbing contract was let for the project and when he was told that it had been, he asked who the subcontractor was. Allison informed him that he believed that it was a "Hartig Plumbing Company out of Ontario or Upland" but that he "wasn't sure," that "Hartig was the lowest bidder" and, therefore, he assumed that Hartig "got the job." Anderson then went to his car, looked through a book, and reported to Allison that Hartig's name was not in the "plumbing book" and stated that he "had to assume it was nonunion and that if it was nonunion, he would not allow the plumbing to be done by a nonunion shop." Allison further testified that Anderson stated to him that "If it was nonunion, they would shut down the job completely and put up a picket line." Allison told Anderson to "hold his horses" until it could be determined if the plumbing subcontractor was or was not union , that Ameron used strictly union personnel and union contractors, and that he was sure that Hartig was union even though it was not in his book. Allison testified to Anderson's response as follows: Well, he, in so many words, told me that if I would guarantee that we would use a union shop or if I was sure it would be a union shop, he would wait until a later date and see what happened and he would be in contact with me. It appears that in the afternoon of Friday, April 6, Hartig installed some rough plumbing on the site. Allison testified that "a week or so" thereafter, Anderson again came to the jobsite, saw the rough plumbing that had been installed, and asked "who had put it in." Anderson informed him that he did not know, that he had left the jobsite on Friday (April 6) at noon and when he returned to the jobsite Monday, he found that it had been installed. Allison further testified to Anderson's response as follows: He was very angry with the plumbing, No. 1, he said they couldn't be a union shop because they did not allow them to assemble plumbing in the shop and put it in a pre-assembled situation on the job site and it was pre-assembled. He said they couldn't be a union shop because a union shop would have to report to him. They would have to get his okay for Saturday or Sunday work, if they worked Saturday or Sunday, that he could just assume that it was a scab and that we weren't dealing in good faith with him and that he was going to put up a picket line and stop the job and refuse to allow us to complete the job. He also said that I should get rid of this contract and contract it with the local union or a local contractor where he could make sure it was done by union personnel. • # • i i THE WITNESS: He said, in so many words, that I should rid myself of the Hartig Plumbing contractor, whoever the contractor was, and have it done by a local contractor where he would know that his men would be used. PLUMBERS & PIPEFITTERS LOCAL 230 109 Allison then told him to calm down until he determined what contractor did the job and that he should talk to Jansen who had knowledge of who had done the work. Allison then testified as to what then occurred as follows: He didn't calm down. He got in his car, backed on down the road, drove up the road for 50 feet probably, and then backed up to the gate again and asked me if this was a private road or a public road and I told him it was a private road and asked him why and he said, well, I just want to know where I am going to put my picket line and with this he drove off. Shortly after the above-related second conversation between Allison and Anderson , Jansen had a conversation with Anderson at the jobsite (about the "middle of April"). Jansen testified that Allison pointed Anderson out to him, that he introduced himself to Anderson, and that Ander- son gave him his business card which indicated he was a business representative of Respondent Union. According to Jansen's testimony, Anderson asked him who installed the rough plumbing, that he told him he didn't know exactly but would find out, and that Anderson responded as follows: A. Oh, yeah. He said, "Bill, you'd better find out or else." So, at that time I made a joking gesture, I threw up my hands and I said, "What else? You going to shoot me?" He said, "No, shut the whole God-damned place down. I am going to put up a picket line and nobody come to work no more." That was just about his words. Q. What was your response? A. I told him "Keep your shirt on. I find out who it is." And that is how we parted. While both Allison and Jansen testified that Anderson never mentioned that he was secretary of Respondent Council, each admitted on cross-examination that Ander- son had said to him that Ameron had a contract with Respondent Council requiring Ameron to use union subcontractors. Anderson testified with respect to his first conversation with Allison (which he placed as having occurred in the last week of March) that he introduced himself and gave Allison his business card as representative of Respondent Union. Anderson denied that he stated that if he "didn't get the identity of the plumbing contractor" that he "would shut the job down." It is noted, however, that the threat to which Allison testified was not based upon the failure to get the identity of the plumbing contractor, but was addressed to the use of a nonunion subcontractor. It appears that the identity of the subcontractor was sought by Anderson in order to determine whether it was or was not a union subcontractor and that it was not the sole object of Anderson's threats (as contended by Respon- dents). Allison was a convincing witness and his testimony with respect to the above-described conversation in the latter part of March or first of April is credited. Anderson also testified to a second conversation he had with Allison which he placed around the 10th or 11th of April and it appears that his testimony does not contradict that of Allison with respect to their second conversation. Again, Allison was a convincing witness with respect to the second conversation which apparently occurred toward the end of the second week of April and his testimony with respect to said conversation is credited. Anderson testified that he had no recollection of having the conversation with Jansen to which Jansen testified. Jansen was a convincing witness and his testimony is credited. By letter dated April 19, 1973, Anderson, as secretary of Respondent Council, sent a letter to Ameron enclosing two copies of the current "Articles of Agreement" requesting that they be executed by Ameron. The letter contained the statement that if the agreement is not executed, the "Council shall have no alternatives but to take whatever remedies it may deem appropriate under the circum- stances." The agreement requested of Ameron by Respon- dent Council contains, inter alia, clauses reading as follows: Articles of Agreement I This Agreement shall apply to and cover all building and construction work performed by the Employer, Developer and/or Owner-Builder within the jurisdic- tion of any Union affiliated with the Councils and the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, repair or demolition of a building structure or other work. II The Employer, Developer and/or Owner-Builder agrees that all work performed within the jurisdiction of any Union affiliated with the Councils shall be performed pursuant to an executed agreement with the appropriate Union having work and territorial jurisdic- tion and affiliated with the Council in the area m which the work is performed. IV The Employer, Developer and/or Owner-Builder agrees that he shall contract or subcontract all jobsite work set forth in Article I above to a person, firm, partnership or corporation that is party to an executed, current Agreement with the appropriate Union having work and territorial jurisdiction, affiliated with the Council in which area the work is performed. V The Employer, Developer and/or Owner-Builder agrees that in the event he contracts or subcontracts any jobsite work set forth in Article I above, there shall be contained in his contract with the subcontractor a provision that the subcontractor shall be responsible for the payment of all the wages and fringe benefits provided under the agreement with the appropriate 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union affiliated with the Council. In the event that any subcontractor fails to pay the wages or fringe benefits provided under the Agreement with the appropriate Union affiliated with the Council , the Employer, Developer and/or Owner-Builder shall become liable for the payment of such sums and such sums shall immediately become due and payable by the Employer, Developer and/or Owner-Builder provided, however, he shall be notified of any such nonpayment by registered letter by the appropriate Union no later than ninety (90) days after notice of and/or completion of the entire project. IX In the event that the Employer, Developer and/or Owner-Builder violates any provision of this Agree- ment with the exception of Article IV above, or fails to abide by the determination as provided in Article VIII or in the event that any contractor or subcontractor of the Employer, Developer and/or Owner-Builder fails to abide by the provisions of the appropriate agreement, with the exception of any subcontracting clause contained in the appropriate agreement of the subcon- tractor, it will not be a violation of this agreement for the Councils to terminate this Agreement and it shall not be a violation of this Agreement for any employee to refuse to perform any work or enter upon the premises of such Employer, Developer and/or Owner- Builder, to the extent permitted by law, and Employees who refuse to perform any work or enter upon the premises under the circumstances shall not be subject to discharge or any other disciplinary action, to the extent permitted by law. Allison testified that at the suggestion of a union steward (apparently for a union other than the Respondent Union) he called Anderson on April 23. Allison's testimony with respect to pertinent parts of the conversation is as follows: Again, he expressed the fact that he wanted to know who the plumber was, when he did the job, if they were union or non-union and if I had received a letter from him with some subcontracts and if I had signed these contracts. Mr. Anderson told me that he was tired of talking, that he was going to take action today, that if he didn't have the answers by 2:30 in the afternoon that he was definitely going to take action and was going to close the job down, shut it down, shut it down completely. I asked him again to give me a chance to call Rudy and talk to him and I would have Rudy or someone from the company call him before 2:30 and get him that information. It is noted from Allison's testimony that he admitted to Anderson that he had been "evasive" in his answers to him because he did not think they were the "type of things that" he should tell him and that he had given him the name of Jansen as the person from whom he should get the answers. Anderson testified to the telephone conversation with Allison on April 23 as follows: A. Well, he informed me that he had heard that I was going to put a picket line on the job and I informed him that I was in the process of making up the picket sign right then. Q. Did you tell him who was going to picket? Did you tell him for what purpose? A. I told him that these agreements had been sent in and that I had the return receipt back . He said that he had seen them, but that I should wait and talk to Mr. Jansen before I did anything. I informed him I tried to contact Mr. Jansen in the past and hadn't had any satisfaction on anything. He told me at that time if I would wait he would have Mr. Jansen contact me and I said, "When?" and he said, "Around 2:30 today." It is apparent that there is a considerable variance between the testimony of Allison and the testimony of Anderson as to their telephone conversation of April 23 . Of the two witnesses, Allison was the more convincing and therefore his version is credited. Jansen testified that he had no further conversation with Anderson after the one to which he testified. However, Anderson testified that he received a call from Jansen at 2:30 in the afternoon of April 23. Anderson 's testimony as to that conversation is as follows: A. Well, he told me that he understood that I was figuring to put a Building Trades picket on there and I informed him that I was. Q. A Building Trades picket? A. Yes. Q. Go on. A. Well, at that time he informed me that he wasn't in no position to make a decision right at that time, that he had seven vice-presidents that he had to get together and go through on this and to give him a week before I put this picket on. And at this time I still didn't know whether we had a union or a non-union sub on the job, so I give him that week to sign this Building Trades agreement and then on the 26th I heard from the NLRB. So, I stopped. The above-quoted testimony of Anderson is credited. While Jansen was a convincing witness, his testimony that he only had the one conversation with Anderson to which he testified (earlier in April on the jobsite) is not credited. D. Concluding Findings In their brief, Respondents apparently concede that there were threats to close the job down but claim that they were for only two objects-neither of which was unlawful. Respondents contend that the threats voiced by Anderson, particularly to Allison, were merely for the object of obtaining the name of the plumbing contractor . While it is true that such was an object of the threats, it is clear from the credited testimony that Anderson, on behalf of both Respondents, objected to the use of a nonunion subcon- tractor by Ameron and made it clear that they would not PLUMBERS & PIPEFITTERS LOCAL 230 111 tolerate it. The reason for Anderson's insistence on knowing the name of the subcontractor was to confirm his suspicion that it was nonunion. - Based upon Allison's credited testimony, it was found that Anderson made it evident to him that Respondents would not permit a nonunion subcontractor on the job and would attempt to shut it down unless a union subcontractor were used. It appears that Anderson assumed that Ameron was a party to a contract with Respondent Council requiring Ameron to use union subcontractors (although there was no such contract between said parties). Since Anderson represented himself as a business representative of Respondent Union and also was objecting to the use of a nonunion subcontractor because he thought it was in violation of an agreement which he believed existed between Ameron and Respondent Council, it is inferred that his threats were made on behalf of both Respondents and were for the object of causing Ameron to cease doing business with Hartig in violation of Section 8(b)(4)(ii)(B) of the Act .2 On, or shortly before, April 19, 1973, Anderson must have learned that a contract did not exist between Ameron and Respondent Council, for on that date he sent a letter on behalf of Respondent Council requesting that such a contract (the contract referred to hereinabove) be executed by Ameron. It is clear from the accompanying letter and the credited testimony of Allison and Anderson with respect to statements made by him on April 23 that on behalf of Respondent Council he was threatening to picket unless a contract were signed. General Counsel does not contend that, if the contract sought by Respondent Council were lawful under the construction proviso in Section 8(e) of the Act, the threat to picket for such a contract would be violative of the Act, but does contend that said threat to picket had a second object which is unlawful (of causing Ameron to cease doing business with Hartig). It appears that Respondent Council had not, on April 23, abandoned the object of causing Ameron to cease doing business with a nonunion subcontractor, in addition to the object of obtaining the proposed contract .3 Therefore it is concluded that Respondent Council, on April 23, 1973, was attempting to coerce Ameron into ceasing to do business with Hartig in violation of Section 8(b)(4)(ii)(B) of the Act even though the agreement which it was attempting to obtain at that time is lawful under Section 8(e) of the Act (as found hereinbelow). The fact that Respondent Council may have had a lawful concur- rent object is immaterial. International Brotherhood of Electrical Workers, Local Union No. 11 (L. G. Electric Contractors, Inc.), 154 NLRB 766, 767. Los Angeles 2 Even if a contract between Ameron and the Council prohibiting the use of nonunion subcontractors had existed, it would not afford a defense, since it is well established that such a provision may be enforced only through lawsuits and not by threats, coercion, or restraints prescribed by Section 8(bx4)(B) of the Act. Ets-Hokin Corporation, 154 NLRB 839, 842 3 Anderson testified with respect to his conversation with Jansen on April 23 as follows: "And at this tune I still didn't know whether we had a union or a nonunion sub on the job, so I give him that week to sign this Building Trades agreement ..." This statement ambiguously linking in one sentence the presence of a nonunion subcontractor on the job with the pressing for the proposed agreement with Ameron affords a basis for no more than a suspicion that Respondent Council intended to use the agreement, if it obtained it, against Hartig. Building and Construction Trades Council (Golding and Jones, Inc.), 161 NLRB 729, 730. General Counsel, however, further contends that the aforementioned building trades agreement is not lawful under Section 8(e) of the Act and that Respondent Council's admitted threat to obtain its execution was violative of Section 8(b)(4)(ii)(A) and (B) of the Act. General Counsel argues that articles V and IX of the agreement have an "intent and object" which are "second- ary." His argument is as follows: Thus, the articles specifically hold a contractor respon- sible for the delinquencies of a subcontractor and permit cancellations of the Agreement and sanction refusals to perform work or engage in strikes, thereby discouraging the doing of business with a delinquent subcontractor. Moreover, the clear meaning of these articles makes them secondary in effect. Thus, they permit Respondent Council or its affiliates, although engaged in a primary dispute over unpaid wages and fringe benefits with a subcontractor, to enmesh a neutral general contractor into the dispute, shift all liability to the latter, and, in effect, make it the guarantor of the subcontractor's obligations. On the other hand, the Respondent Council argues that said provisions in the agreement are within the construc- tion proviso in Section 8(e).4 Under said proviso the mere fact that certain provisions in a contract are secondary in nature does not make them unlawful. In the main, General Counsel relies on Calhoun Dry-Wall Company, 153 NLRB 1196. While said case does involve provisions in the general contractor's agreement which are similar to the provisions in issue in this proceeding, said case is inapplicable to the issues herein. In the cited case, the respondents therein threatened to enforce the guaran- tor provision with respect to a nonunion subcontractor which was not obligated to pay the wages and fringe benefits that respondents claimed the general contractor guaranteed under its contract. The Board found that if the general contractor made payments provided for in the guarantee provision of the contract, such payments would have been "strictly a penalty" imposed on the general contractor for failing to subcontract to a union subcontrac- tor and that such a threat constitutes a violation of Section 8(b)(4)(ii)(B) of the Act. The issue to be decided in determining whether the threat to picket Ameron to obtain the proposed agreement is violative of Section 8(b)(4)(ii)(A) and (B) of the Act is whether or not on its face the agreement demanded by Respondent Council is violative of Section 8(e). 4 Sec. 8(e) in its pertinent part provides as follows: 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... . 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It has already been found hereinabove that Respondent Council violated Section 8(bX4)(ii)(B) at the time it threatened to picket on April 23 to obtain the proposed agreement (because it had an unlawful concurrent object of attempting to cause Ameron to cease doing business with Hartig). Merely because Respondent Council had such an unlawful object at the time it sought the agreement from Ameron does not make the contract itself violative of Section 8(e) or the other object (of obtaining the contract) unlawful under Section 8(b)(4) (ii)(A) of the Act.5 It appears that the proposed agreement is clear and unambiguous. It provides that all work performed on the jobsite be performed pursuant to an agreement with the appropriate union affiliated with Respondent Council; that the contractor can only subcontract work on the jobsite which is in the jurisdiction of any union affiliated with Respondent Council to a subcontractor signatory to a contract with said union ; that the contractor, in his contract with the subcontractor, require that the subcon- tractor be responsible for the payment of all the wages and fringe benefits provided under the subcontractor's agree- ment with the appropriate union affiliated with Respon- dent Council; and that the contractor, in effect , guarantee such payment. Article IX of the agreement contains a provision for self-enforcement of the agreement with the exception of article IV (the requirement that union subcontractors be used). The Respondent Council relies, in the main, on J. K. Barker Trucking Company, 181 NLRB 515. It is noted in said cited case the Board found that similar provisions for guaranteeing the obligations of the subcontractor were not clearly unlawful on their face . In the instant case, it does not appear that the guarantor and self-enforcement clauses are, on their face, violative of Section 8(e). The guarantor provision is no more than a device by which the employees engaged in work at the jobsite are assured of the wages and fringe benefits provided for in the union contract under which they are working and to which contract the general contractor has agreed . In my opinion, such a requirement falls within the construction proviso in Section 8(e) of the Act in that it clearly relates to the contracting or subcontracting of work to be done at the site. General Teamsters Local 386, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America (Construction Materials Trucking, Inc.), 198 NLRB No. 129. The guarantee provision on its face is only applicable to a situation where a union subcontractor fails to pay the wages and fringe benefits provided in the union contract to which the subcontractor is signatory (and to which Ameron has agreed). Therefore, it does not appear that the guarantee and self-enforcement provisions on their face have an unlawful secondary objects Said provisions cannot be construed- to apply-to-a nonunion subcontractor 5 Sec 8(b)(4)(ii)(A) of the Act provides as follows: It shall be an unfair labor practice for a labor organization or its agents- (u) to threaten , coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is : (A) forcing or requiring any employer or self-employed and therefore could not have been applied to obligations of Hartig to pay wages and fringe benefits required under a union contract. If it were found that threatening to picket to obtain the proposed agreement is violative of Section 8(b)(4)(ii)(A) of the Act, a remedy would be required of a cease-and-desist order restraining Respondent Council from picketing or threatening to picket to obtain such a contract from Ameron, or any other employer, even though it is a lawful contract . Since it is found that the proposed agreement on its face is not violative of Section 8(e) it would be inappropriate to issue such an order on the rationale that in the context of its threatening to picket for a lawful contract Respondent Council also threatened to picket with an object of causing Ameron to cease doing business with Hartig, or on the rationale that Respondent Council might attempt to put the lawful contract to an unlawful use. In the event that Respondent Council were to attempt to enforce the contract for an unlawful object (for example, attempting to apply it with respect to a nonunion contractor such as Hartig) it would be guilty of a violation of Section 8(b)(4)(ii)(B) of the Act, as found in Calhoun Dry-Wall Company, supra. Whatever Respondent Council might have had in mind by attempting to get the contract, a finding of a violation of Section 8 (bx4)(ii)(B) of the Act cannot be based on a suspected future misuse of the otherwise lawful contract. Consequently, it is concluded that General Counsel has failed to sustain by a preponderance of the evidence the allegations in Case 21-CC-1481 that Respondent Council violated Section 8(b)(4)(iiXA) and (B) of the Act on the ground that the contract is violative of Section 8(e) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of Respondents set forth in section III, above, occurring in connection with the operations of the Employers involved herein described in section I, above, have a close , intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY It having been found that Respondents have engaged in certain unfair labor practices, it will be recommended that they be ordered to cease and desist therefrom and take certain affirmative action deemed necessary to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: person to join any labor or employer organization or to enter into any agreement which is prohibited by section 8(e) ... 9 It is noted that Administrative Law Judge Louis S Penfield in his decision in Joint Council of Teamsters No 42 (Merle Rephagen), Cases 21-CC-1424 and 21-CE-122, JD-(SF)-112-73, and Administrative Law Judge Maurice M. Miller in his decision in International Union of Operating Engineers, Local Union No 12 (Griffith Company, et a!), Cases 21-CC-1451 and 21-CE-126, JD-(SF)-184-73, came to the same conclusions with respect to clauses very similar to the clauses involved in this proceeding rt.,UMBERS & PIPEFITTERS LOCAL 230 113 CONCLUSIONS OF LAW 1. By threatening to picket the El Centro, California, jobsite of Ameron Steel Producing Division, on several occasions in the last part of March and in April of 1973, with an object of causing it to cease doing business with Hartig Plumbing Co., Respondents violated Section 8(b)(4)(ii)(B) of the Act. 2. The contract demanded by Respondent Council is not violative of Section 8(e) of the Act. 3. General Counsel has failed to prove by a preponder- ance of the evidence the allegations in Case 21-CC-1481 that Respondent Imperial County Building and Construc- tion Trades Council violated Section 8(b)(4)(ii)(A) and (B) of the Act on the ground that the contract demanded by said Respondent is violative of Section 8(e) of the Act. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER? Respondents, Plumbers and Pipefitters Local No. 230 and Imperial County Building and Construction Trades Council, their officers, agents, and representatives, shall: 1. Cease and desist from picketing, causing to be picketed, or threatening to picket the El Centro, California, jobsite of Ameron Steel Producing Division, or any other of its jobsites within their territorial jurisdiction, when an object thereof is to force or require said Company to cease doing business with Hartig Plumbing Co ., or any other employer. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post in their business offices and meeting halls copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 21, shall, after being duly signed by an official representative of each of said Respondents , be posted by them immediately upon receipt thereof and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to their members are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Promptly after receipt of copies of said notice from said Regional Director return to him signed copies for posting by Ameron Steel Producing Division, if it be willing, at its jobsite in El Centro, California, and any other of its jobsites within the territorial jurisdiction claimed by Respondents in all places where notices to employees of said Employer are customarily posted. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. IT IS FURTHER ORDERED that the allegations in the complaint in Case 21-CC-1481 that the contract demand- ed of Ameron by Respondent Council is violative of Section 8(e) of the Act and by reason thereof Respondent Council's threat to picket to obtain said contract was violative of Section 8(b)(4)(ii)(A) and (B) of the Act are hereby dismissed. 7 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 8 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. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT picket, cause to be picketed, or threaten to picket, Ameron Steel Producing Division's jobsite in El Centro, California, or any other of its jobsites within our territorial jurisdiction, when an object thereof is to force or require said Company to cease doing business with Hartig Plumbing Co., or any other employer. PLUMBERS AND PIPEFITTERS LOCAL No. 230 (Labor Organization) Dated By Dat^d By (Representative) (Title) IMPERIAL COUNTY BUILDING AND CONSTRUCTION TRADES COUNCIL (Labor Organization) (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 compliance with its provisions may be directed to the Board's Office, 849 South Broadway, Los Angeles, California 90014, Tele- phone 213-688-5229.