Carpenters, Local 112

902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Brotherhood of Carpenters & Joiners of America, Local 112, AFL-CIO and its agent, South- west Building Trades Council of Montana, AFL-CIO' andSummit Valley Industries, Inc. and Jack McLeod & Associates, Inc. and Chamber of Commerce of the United States of America, for and on behalf of its member Boise Cascade Corporation and all other similarly situated members.2 Cases 19-CC-588, 19-CD-212, 19-CC-591, 19-CC- 604, 19-CC-604-2, and 19-CE-21 May 12, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, KENNEDY, AND PENELLO On May 9, 1974, Administrative Law Judge Louis S. Penfield issued the attached Decision in this proceed- ing. Thereafter, exceptions and supporting briefs were filed by Respondent Carpenters, Respondent Council, Summit Valley Industries, Inc., Jack McLeod & As- sociates, Inc., The Chamber of Commerce, and the General Counsel. The Chamber of Commerce also filed a supplemental brief and Air Conditioning and Refrig- eration Institute, et a1.,3 filed an amicus curiae brief. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs4 and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of I Hereinafter referred to as Respondent Carpenters and Respondent Council, respectively. 2 Hereinafter referred to as the Chamber of Commerce 3 American Boiler Manufacturers Association, Air Moving and Condi- tioning Association, Inc , Architectural Woodwork Institute, American Consulting Engineers Council, National Electrical Manufacturers Associa- tion, National Society of Professional Engineers, and National Woodwork Manufacturers Association 4 The Chamber of Commerce has requested oral argument This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and positions of the parties Respondent Carpenters motion requesting the Board to reject the Cham- ber of Commerce's supplemental brief is hereby denied as lacking in ment 5 We do not share our dissenting colleague's evaluation of the record here as establishing that a decision to purchase a modular home is "never made or even participated in" by any employer of Respondent's members, and that art XXII "could have no other purpose" except to bar finished modular homes completely from the Butte market. We are aware of nothing in the record which proves, for example, that a carpentry contractor could or might never decide to purchase and erect a modular home for resale on his own account Moreover, contrary to our dissenting colleague, in determining the valid- ity of a clause under Sec 8(e), the Board has never considered extrinsic evidence as to the manner in which the clause has been subsequently en- forced where as here the clause is clearly lawful on its face. the Administrative Law Judge and hereby orders that Respondent United Brotherhood of Carpenters & Join- ers of America, Local 112, AFL-CIO, Butte, Montana, its officers, agents, and representatives, shall take the action set forth in the said recommended Order , except that the attached notice is substituted for that of the Administrative Law Judge. MEMBER KENNEDY, concurring in part and dissenting in part: I concur in my colleagues' findings that Respondent Carpenters has engaged in unfair labor practices in violation of Section 8(b)(4)(i), (ii)(B) and (D) of the Act. I disagree with their dismissal of the 8(e) and 8(b)(4)(i) and (ii)(A) complaint allegations against Re- spondent Carpenters.' The Administrative Law Judge found, inter alia, that certain actions taken by the Union to enforce the provi- sions of article XXII of its collective-bargaining agree- ments with Butte, Montana, building contractors,' threatened, coerced, and restrained contractors Jovick, Perusich, and Lutey-and unlawfully induced and en- couraged their employees-with an object of forcing or requiring them to cease handling and otherwise per- forming work upon fully finished modular homes manufactured by Summit Valley Industries, Inc., and Boise Cascade Corporation. I agree with this finding. However, I would further find that the Union violated Section 8(e) of the Act by "entering into" article XXII, and violated Section 8(b)(4)(i) and (ii)(A) by threaten- ing, coercing, and restraining the aforementioned con- tractors with the object of forcing or requiring them to "enter into" article XXII. Fully finished modular homes of the type manufac- tured by Summit and Boise come from their factories to building sites in the Butte area as substantially fin- ished products with most of the work that carpenters normally perform on conventional stick-built houses already completed. However, some carpentry work is still required at the sites-for construction of the foun- dations, "stitching work" on the modular units, hang- ing of some inside doors, and building of stoops, stairs, and railings. To perform this work, local building con- tractors are engaged by either the home buyer or Boi- se's franchised dealer in Butte, Jack McLeod & Associ- ates. With respect to the modular homes directly involved herein, the foundation and finishing work was 6 Also unlike my colleagues, I would not affirm the Administrative Law Judge's rulings wherein he rejected certain expert testimony and exhibits proffered by Charging Party Chamber of Commerce which dealt with eco- nomic factors relating to the home construction industry on a national basis 7 Art XXII is purported by the Union to be a work preservation agree- ment. In pertinent part, it sets forth specific aspects of carpentry work which signatory contractors must have performed only at construction sites. Most of the work so specified is performed on fully finished modular homes at the factory where they are manufactured The full text of art. XXII appears in the attached Decision of the Administrative Law Judge 217 NLRB No. 129 CARPENTERS , LOCAL 112 - given to contractors Jovick, Perusich, and Lutey, all of whom employed members of Respondent Carpenters and were bound to contracts containing article XXII.8 When the contractors commenced their work on the modular homes or on the foundations therefor, the Union asserted that they were violating article XXII and proceeded to apply pressures to both the contrac- tors and the contractors ' employees which effectively terminated further work on modular homes in the Butte area. The Administrative Law Judge, relying on the reasoning set forth both by the Board and the court in the Koch case,' found that the pressured contrac- tors were neutrals as they were incapable of acceding to the Union's work-assignment demands and, there- fore, concluded that the actions taken against them and their employees had a secondary objective and were violative of Section 8(b)(4)(i) and (ii)(B). However, the Administrative Law Judge then pro- ceeded to hold that article XXII, itself, did not have a proscribed object and, accordingly, the conduct of Re- spondent Carpenters in "entering into" it-and pres- suring contractors to "enter into" it-was not violative of the Act. In reaching this conclusion, the Administra- tive Law Judge relied on his preliminary finding that when initiating, entering into, and maintaining article XXII the Union was seeking only to preserve work historically and traditionally performed by its carpen- ter members against the advent of modular housing in the Butte area. - In so finding, the Administrative Law Judge relied on the decision of a panel of this Board in United Brotherhood of Carpenters & Joiners ofAmerica, Local # 112, AFL-CIO (Silver Bow Employers' Association), 200 NLRB 205 (1972), in which I did not participate. In that decision the Board dismissed the allegation that the initial entry into article XXII violated Section 8(e). That decision is not persuasive in view of the evidence of unlawful 'intent revealed by the subsequent enforce- ment efforts explicated on the record here.10 The s All, or almost all, Butte area contractors performing carpentry work are bound to art XXII, either through their membership in the Silver Bow Employers' Association or the Butte Contractors' Association-which or- ganizations jointly negotiated identical contracts with Respondent Carpenters-or by execution of individual compliance agreements. Contrac- tors Perusich and Lutey are members of the Butte Contractors ' Association, while Jovick was an individual signatory. 9 Local Union No 438, UnitedAssociation ofJourneymen andApprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (George Koch Sons, Inc.), 201 NLRB 59, enfd sub nom. George Koch Sons, Inc. v N.L R B., 490 F.2d 323 (C A 4, 1973) 10 The scope and meaning of art XXII can be ascertained only from an examination of the circumstances of the industry and the labor relations of the parties who negotiated the contract Without that context, the clause per se is merely a list of job assignments which does not on its face answer the questions which the Supreme Court has said must be answered to deter- mine the legality of the contract National Woodwork Manufacturers As- sociation v NL.R.B, 386 U S. 612 (1967) Whether the clause meets the standard of legitimate work preservation or is designed to reach elsewhere 903 Board has clearly held that postentry conduct does reveal initial secondary purpose in the demand for and entry into such an agreement. General Teamsters, Chauffeurs, Warehousemen and Helpers, Local 982, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers ofAmerica (Associated In- dependent Owner-Operators, Inc.), 181 NLRB 515 (1970). See Joint Council of Teamsters No. 42, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Merle Riphagen), 212 NLRB 50 (1974). It is significant that Respondent Carpenters conceived article XXII as a means of avoid- ing the Board's earlier decision that its actions against the performance of work on these modular houses were unlawful. Southwest Building Trades Council of Mon- tana (John A. Bender), 188 NLRB 224 (1971). There- fore, in my view, the Administrative Law Judge 's anal- ysis is inadequate and should not be adopted. The General Counsel is correct on the facts and the law in his assertion that the extrinsic evidence adduced on this record proves that Respondent Carpenters understood and intended article XXII to encompass secondary ob- jectives at the time it was entered into. When evaluated in the context of record evidence pertaining to the home construction industry in Butte and the conduct of Respondent Carpenters, it is clear that the sole motivation" for initiating, "entering into," 12 maintaining, and enforcing article XXII was to completely bar fully finished modular homes from the Butte housing market. It could have no other pur- pose, as the Union conceded that it had experienced no difficulties with the contractors relating to the use of prefabricated or other offsite constructed components in the conventional stick-built construction.13 Indeed, as the Board found in United Brotherhood of Carpenters & Joiners of America Local 112, AFL-CIO (Summit Valley Industries, Inc.), 202 NLRB 974 -(1973), Re- spondent Carpenters' pressure against Summit Valley would cease if Respondent achieved jurisdiction of the in-plant work of assembling these modular houses, is a question that can only be answered by an analysis of its context which includes the evidence of its enforcement history i i My colleagues' reliance on Respondent's self-serving testimony that it conceived of and enforced art XXII in "good faith" is ill founded The law will not recognize such disclaimers, but rather presumes that one intends the foreseeable consequences of misconduct See my dissent in Los Angeles Building and Construction Trades Council (B & J Instrument Company), 214 NLRB No 86 (1974) i2 The actual execution of the contracts containing art XXII predated the Act's 10(b) period herein. But, as the Administrative Law Judge correctly found, a contract may be viewed-at least for 10(b) purposes-as reaffirmed or "reentered into" when its terms are acquiesced in or enforced by the parties. Here, within the 10(b) period, the Union applied enforcement pres- sure, the employing contractors acquiesced , and such acquiescence con- stituted a new "entering into." 13 The testimony of James Cadigan, Respondent Carpenters business agent, confirms that-except for modular homes-the Union had no prob- lems with its contractors concerning the preservation of onsite construction jobs. 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which work was already being done by employees represented by another labor organization. In that pro- ceeding, Respondent conceded that it was attempting to apply article XXII. Respondent's object is to acquire work being performed by other employees not repre- sented by it. Such an object is secondary and violative of Section 8(e). National Woodwork Manufacturers As- sociation v. N.L.R.B., 386 U.S. 612. Further, as the decision to purchase a fully finished modular home is made by the home buyer or, in certain cases, by the modular home dealer-and is never made, or-even participated in, by contractors employing the Union's members-Respondent Carpenters knew, or should reasonably have known, that article XXII would be enforced exclusively in situations where the signatory contractors would be unoffending neutrals and only secondary consequences would flow there- from. With regard to this factor, the Circuit Court of Ap- peals for the Ninth Circuit recently observed as follows: Whether an agreement or its maintenance con- stitutes a secondary boycott must be determined by reference to "all the surrounding circum- stances." National Woodwork, supra at 644. An important factor in this determination is the "right-to-control" test which provides that "if an employer is not legally empowered to meet his employees' demand, then they cannot lawfully strike him for his failure to accede." George Koch Sons, Inc. v. N.L.R.B., 490 F.2d 323, 326 (4th Cir. 1973). [The Union] argues that its objective here was work preservation and that National Woodwork authorizes any union activity with that objective. We believe National Woodwork must be limited by the right-to-control doctrine. A union's right to enforce a work preservation clause against an em- ployer may extend only to work which is his to assign. When it is applied to work beyond the employer's power to give, a work preservation clause necessarily embodies a prohibited second- ary objective. l4 Accordingly, as the signatory building contractors herein were merely secondary employers with no power to alter the nature of the work performed on the modular homes, it becomes clear that the Union's true objective was, through coercion of the contractors, to put pressure on modular home buyers and dealers to cease doing business with Summit and Boise and, thereby, to pressure Summit and Boise to either alter 14 Associated General Contractors of California, Inc. v. NLR B, 88 LRRM 3542, 3544, 3545 (C A 9, 1975), reversing 207 NLRB 698 (1973) the nature of their products or cease manufacturing them. Therefore, as the record evidence shows that article XXII was, and is, necessarily aimed at contractors who cannot control the type of housing on which they are asked to work, it necessarily becomes secondary and unlawful under Section 8(e), and the conduct engaged in to obtain the clause and compliance therewith (a new "entering-into") did and does violate Section 8(b)(4)(i) and (ii)(A). Wholly apart from considerations concerning the contractors' known inability to secure the disputed work for the Union's members, I would also find a violation of Section 8(e) on the ground that the work the Union sought to preserve by "entering into" article XXII is not work which its members have historically and traditionally performed. For, I regard fully fin- ished modular homes as being technological innova- tions. Their production on an assembly-line operation in an industrial plant is significantly different in nature from conventional craft operation "stick-built" homes. From this, I conclude that the in-factory work per- formed on them cannot be considered in the same cate- gory as the jobsite work which carpenters have histori- cally and traditionally performed on- conventional housing.15 Moreover, from the record evidence herein, it appears that the relationship between successful en- forcement of article XXII and the securing of employ- ment opportunities for jobsite carpenters is, at best, remote. 16 Therefore, I conclude that the objective of article XXII was to acquire, rather than preserve, work for the employees represented by Respondent Carpenters. Ac- cordingly, I would, on this additional basis, find that article XXII, its entry into, maintenance, and enforce- ment, is violative of Section 8(e) and 8(b)(4)(i) and (ii)(A) of the Act. 15 See my dissents in Southern California Pipe Trades District Council No. 16 of the United Association (Associated General Contractors of California), 207 NLRB 698 (1973); Southern California Pipe Trades District Council No. 16 (Kimstock Division, Tndair Industries), 207 NLRB 711 (1973) 16 The record establishes that there is a substantial price differential between fully finished modular homes and conventional stick-built housing. Testimony indicated that the former sell in the $18,000-$25,000 price range, while the latter are almost always priced in excess of $25,000 While modular houses are generally smaller in area than the conventional ones, the evidence also shows that, even in terms of cost per square foot, the modular houses maintain a cost advantage to the buyer. As a result of their differing price ranges, it appears that the conventional homes (on which carpenters have traditionally performed art. XXII work) and modular homes do not directly compete with each other in the same housing market. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government CARPENTERS, LOCAL 112 WE WILL NOT induce or encourage any employee to refuse to work on, handle, or transport any modular house, or threaten or coerce any person, including Butte area contractors, or any other em- ployer engaged in some aspect of constructing, transporting, or handling modular houses, where in either case an object of such pressures is to force or require the Butte area contractors, or any other person, to cease working on a modular house at a jobsite, either altogether, or unless and until such house be brought to the jobsite in a condition which conforms to the requirements of article XXII of the contract; or where an object is to force or require manufacturers of modular houses to cease bringing such houses into the Butte area altogether, or to change their mode of operation so that such houses are brought to Butte area jobsites in a condition that conforms to article XXII of the contract. WE WILL comply with the Board's Direction and Determination of Dispute on the work assignment issue, and will not picket or bring economic pres- sure against Summit Valley, or any other person, where an object is to force or require Summit Val- ley to assign carpentry work, whether in its plant or at a jobsite, to employees who are members of our union rather than to employees who are mem- bers of Teamsters Union Local No. 2. WE WILL rescind any fines assessed, refund any fines collected, and restore membership status in any case where our members have been penalized for engaging in conduct deemed by us to have been violative of article XXII of the existing contract. UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, LOCAL 112, AFL-CIO DECISION STATEMENT OF THE CASE Louis S. PENFIELD, Administrative Law Judge: This con- solidated proceeding was heard before me in Butte, Montana, on 15 hearing dates occurring between June 5, 1973, and October 26, 1973. The consolidated complaint was issued on May 11, 1973. The charges in Cases 19-CC-588 and 19-CD-212 were filed by Summit Valley Industries, Inc., herein called Summit Valley, on October 12, 1972. The charge in Case 19-CC-591 was filed on October 19, 1972, by Jack McLeod & Associates, Inc., herein called McLeod. The charges in Cases 19-CC-604 and 19-CE-21 were filed on January 5, 1973, and the charge in 19-CC-604-2 was filed on January 12, 1973. Each of the latter charges was filed by the Chamber of Commerce of the United States of America, 905 herein called the Chamber. Copies of each of the charges were duly served on the parties. The consolidated complaint al- leges that Respondent United Brotherhood of Carpenters & Joiners of America, Local 112, AFL-CIO, herein called the Carpenters, engaged in various unfair labor practices in viola- tion of Section 8(b)(4)(i), (ii)(A) and (B), 8(b)(4)(i) and (ii)(D), and 8(e) of the Act. While the hearing was in- recess, but after 3 days thereof had been completed, the Chamber amended its charge in. Case 19-CC-604 to join Southwest Building Trades Council, herein called the Council, as an agent of the Carpenters with regard to certain unfair labor practices. Thereafter, on July 20, 1973, the General Counsel moved to amend the complaint to name the Council as agent for the Carpenters and a party respondent. When the hearing reconvened on July 24I denied the motion to amend after hearing argument on the record. This ruling was appealed to the Board by the General Coun- sel and the Chamber. On July 27 the Board reversed my denial of the motion to amend and directed that I take appro- priate action. Thereafter, I ordered that the complaint be amended and that the Council be given time to answer, and otherwise given the time and opportunity to review the record already made. The hearing was recessed on July 27 and resumed on September 11, at which time the Council ap- peared by its attorney and remained and participated during the balance of the hearing. All parties were given full opportunity to participate in the hearing, and after the close thereof, the General Counsel, the Charging Parties, and both of the Respondents filed briefs. Upon the entire record in this consolidated proceeding, and upon my observation of the witnesses and their de- meanor, I make the following: FINDINGS OF FACT 1. JURISDICTION Jurisdiction is not contested. This proceeding, involving as it does alleged violations of Section 8(b)(4), includes various employers or groups of employers involved in the dispute who may be characterized as primary or secondary employ- ers within the meaning of the statute. Summit Valley, a Butte manufacturer of modular houses, purchases materials and supplies from sources outside the State of Montana valued in excess of $50,000. Boise Cascade, another manufacturer of modular houses,'has its plant in-Pocatello, Idaho, and di- rectly ships houses manufactured there to purchasers in States other than Idaho which are valued in excess of $50,000. Silver Bow Contractors' Association and Butte Contractors' Association represent various employers engaged in the gen- eral contracting business in Butte, Montana. In the aggregate, the business operations of such contractors realize a gross income exceeding $500,000 and they purchase goods and supplies originating outside the State of Montana, valued in excess of $50,000. Under the circumstances it is obvious that employers directly involved are engaged in businesses which affect commerce within the meaning of the Act, and that under existing Board jurisdictional standards assertion of ju- risdiction is warranted, and I so find. 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II THE LABOR ORGANIZATIONS INVOLVED contractors. For many years collective-bargaining agree- ments between Butte contractors and Respondent Carpenters have controlled the working conditions. The traditional so-called stickbuilt house involves the work of various crafts, each represented by a different union. For the most part, the differing skills and the jurisdictional lines between the crafts are well defined. A stickbuilt house nor- mally starts with the digging of a foundation; preliminary piping follows; footings and concrete walls are then put in; a frame is built; piping and basic wiring go in; outside siding and roofing are put on ; and finally there will be inside finish- ing and the installation of cabinets . Materials used by the different crafts will be delivered to the jobsite, some in a substantially prefabricated state!Onsite work, however, by all crafts follows a more or less well-defined sequence toward completion, with steady work performance depending on the availability of workers in each craft as its work is needed. Reasonably good weather conditions are required for most jobsite work to progress. In the case of the Butte carpenters, many innovations have been accepted in the past 25 years. These include the use of power tools, precut lumber, prefab- ricated cabinets, and many other items. It is estimated that as a result of such innovations two carpenters at the present time, are able to do the same amount of work which formerly required the use of five carpenters. Modular houses are best described as factory built. They are a fairly recent development in the house building indus- try. This proceeding directly involves two modular house manufacturers, Summit Valley Industries, Inc. and Boise Cascade Corporation. Summit Valley, the smaller of the two enterprises, is located in Butte. The far larger,Boise Cascade factory is located in Pocatello , Idaho, some 250 miles from Butte, a location from which it serves a large area. The construction process followed with a factory-built house is similar at both enterprises. The houses are built pursuant to a few well-standardized plans. The construction takes place indoors and follows what is essentially an assem- bly line process. Because of its fixed pattern, the work called for is frequently repetitive . This enables the manufacturer to staff the plant with job trained workers rather than having to call upon the journeymen and apprentice craftsmen that job- site -construction demands. In such a plant, full use will be made of overhead cranes and readily available power equip- ment of a diversified nature. This makes a substantial contri- bution toward an efficient operation and a steady flow of work. Normally, several houses will be on the production line at the same time. This will make it possible to move em- ployees from one area to another, and make full use of their limited job-trained skills. Since all work is done indoors, inclement weather does not result in work interruptions. Ac- cordingly, employees working for modular house manufac- turers have an opportunity for far steadier employment than comes to employees working at jobsites . The centralization of construction on all the houses also enables the manufacturers to keep substantial inventories of materials and take full ad- vantage of lower costs which may come about through mak- ing large purchases. Summit Valley produces only three different models of modular houses from which a buyer may choose. Each of these has a standard basis design but a variety of options are open to a buyer. Boise Cascade has some 35 different plans Respondent Carpenters and Respondent Council are each, and at all material times have , been, labor organizations within the meaning of Section 2(5) of the Act. ' III THE UNFAIR LABOR PRACTICES The entire controversy in this lengthy and involved pro- ceeding centers on the lawful or unlawful nature of a so-called work preservation clause found in a contract between Re- spondent Carpenters and certain building contractors who function in Butte, Montana, and the adjacent area. It is the contention of the General Counsel and the Charging Parties that this clause was conceived for an unlawful secondary "cease doing business" object, and that it was entered into and enforced by unlawful means. The legal responsibility of Respondent Council for aiding Respondent Carpenters itself for alleged unlawful work assignment pressures repre- sent subsidiary, but not unimportant, issues. Respondent Carpenters contends the contract clause to be concerned solely with lawful work preservation within the rationale set forth by the United States Supreme Court in National Woodwork Manufacturers Association, 386 U.S. 612 (1967), herein called National Woodwork. The General Coun- sel and the Charging Parties dispute Respondent Carpenters' interpretation of National Woodwork on several counts, claiming, among other things , that the Carpenters' enforce- ment efforts are unlawful within the rationale of the Board in Plumbers and Pipefitters Local No. 438 (George Koch Sons, Inc.), 201 NLRB 59 (1973), herein called Koch. Subsequent to the close of this hearing Koch was affirmed in George Koch & Sons, Inc. v. N.L.R.B., 490 F.2d 323 (C.A. 4,1973). The disputed clause came into being in 1971 following a strike in which it had been the primary issue. During the strike efforts to obtain such a work preservation clause were charged to be unlawful within the meaning of Section 8(b)(4)(A) and 8(e). After litigation these charges were dis- missed by the Board in Carpenters Local 112 (Silver Bow Employers-Association), 200 NLRB 205 (1972), herein called the Silver Bow case. The lawful nature of the clause itself, however, is again attacked in the instant proceeding along with the lawful character of the means used to bring about its enforcement. The advent of modular houses into the Butte area brought about the Carpenters demand for the clause. We will first define the term "modular house" and contrast its meaning with that of the more conventional type of house. Then we will view the background against which the disputed clause came into being and consider the means used to enforce it. Finally, in addition to treating with the subsidiary issues, we will evaluate the alleged unlawful nature of the object for which the clause was pursued'or enforced. A. Modular Houses, Stickbuilt Houses, and Carpenters Work Respondent Carpenters represents journeymen and ap- prentice carpenters in the Butte area who work on the con- struction of dwellings in commercial or industrial buildings. Carpenters normally work for area contractors and perform their work either at a building site or in the shops of the CARPENTERS, LOCAL 112 and a greater variety of options. A modular house will come from either factory as a finished product completely wired, completely plumbed, with all appliances installed, with the carpeting laid, and with the painting completed . It needs only to'be transported to the building site, placed on-a foundation, and to undergo what is called stitching together -to become immediately habitable. The required stitching, however, in- volves a substantial amount of work . The stitching is abso- lutely essential for each modular house, and much of such work falls within the carpenter's craft. Larger houses are usually transported in two halves which must be joined at the jobsite by a stitching process. In every case there also will be wires and plumbing to be connected , and usually the job will include the hanging of some inside doors, and the building of stoops, stairs, or railings. A modular house, of course, must always be placed upon a foundation. This will have been constructed prior to delivery. The construction of founda- tions for modular or stickbuilt houses does not differ. Modular houses are generally marketed to prospective pur- chasers, either by the manufacturer directly or through a dealer. Generally speaking, the purchaser chooses a model from an available plan, chooses the options he desires, and makes an initial deposit. After this the house will be built at the plant . Upon its completion the manufacturer will receive the agreed-on price usually obtained by financing with a lend- ing institution: The completed house will be transported to the building site by the manufacturer . Ordinarily the pur- chaser makes his own arrangements with the contractor to put in an appropriate foundation and do the needed stitching. Summit Valley markets the houses which it builds directly. At times material to this proceeding, Jack McLeod & Associ- ates was the franchised dealer for the Boise Cascade houses sold in the Butte area. From the foregoing, it is apparent that each type of dwell- ing is the product of a differing process. The building of a stickbuilt house is for the most part a continuing jobsite process involving the intermeshing of a number of crafts. These crafts, following a somewhat fixed sequence , assemble and construct the finished habitable dwelling from a variety of material delivered to the jobsite in a greater or lesser pre- fabriicated state. The overall size, the floor plan, and the variety of elaborations in a stickbuilt house are limited only by the money which the owner is prepared to spend. On the contrary, a factory built modular house is a standardized product . It is strictly limited as to size and pattern, with few variations in design or floor plan available. The options relate principally to such matters as types of wiring, types of appliances to be installed , and differences in the paint or other decor. The size of a modular house is limited by the manufacturer's design, and such houses come only in a range between 1 ,000 and 1 ,800 square feet. It is conceded that the cost per square foot of a modular house is less than the cost per square foot of a stickbuilt house of comparable size and finish. Considerable testimony was received as to the relative cost of the two types of houses, but it became apparent that so many variables were involved that any definitive determi- nation as to the precise range of the differential is not practi- cal. Suffice it to say that the record establishes the differential to be substantial, and the comparable quality of the two types of houses sufficiently close that given similar sized houses, the lower priced modular house would have a marked competi- 907 tive advantage. The record further shows there is a shortage of houses in the price bracket within which modular houses fall. Thus it is a fair assumption that the price advantage will frequently result in a modular house being chosen by a pros- pective purchaser, despite its standardized pattern. As noted above, the manufacture of a modular house, un- like the erection of a stickbuilt house, does not require the use of skilled employees. Thus the employment pattern at the manufacturer's plants ignores craft lines, and the work force is comprised of job trained production and maintenance em- ployees. Both Summit Valley and Boise Cascade employees are organized along industrial lines. At Summit Valley, Local No. 2 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Teamsters, represents the employees in a production and maintenance unit. The Teamsters contract wage scale is sub- stantially lower than that provided for the journeymen and apprentice carpenters found in the contract between Re- spondent Carpenters and the Butte Contractors. Absence of a weather problem, however, makes plant employment pgssi- ble on a more steady basis. A local of United Brotherhood of Carpenters and Joiners of America represents the Boise Cas- cade workers in Pocatello, also on an industrial basis. Al- though the record does not disclose the wage scale it is a fair assumption that the pattern is substantially similar to that found at Summit Valley. It is both traditional, and necessary, that in building a stickbuilt house, carpenters will do all needed woodwork on the foundation and basements, all woodframing, all interior and exterior siding, all shingling, and the installation of all the cabinets. When a modular house is taken to a jobsite only the foundation forms, the stitching, and some work on stairs, railings, and doors remain to be done at the jobsite. All the interior and exterior woodwork will have been done at the factory. This necessarily means that there will be less jobsite work for carpenters in any given situation where the house is modular rather than stickbuilt. B. The Background, the Strike, and Article XXII Respondent Carpenters and some fifty contractors in the Butte area who employ carpenters have had a collective- bargaining relationship for many years. Insofar as this record shows, prior to 1969, no serious problems relating to onsite construction work had arisen between these contracting par- ties. In 1969, John A. Bender, a Butte realtor, became the fran- chised dealer for Interstate Homes, Inc. Interstate manufac- tured modular houses in a nonunion plant located in Salt Lake City, Utah. Houses that Bender sold to customers were to be slipped by Interstate to the Butte area and placed on appropriate foundations there. The foundation and the stitch- ing work was to be done by contractors employed by Bender or his customers. When this was noted by Respondent Car- penters, Respondent Council, and other construction unions, they brought pressures against the Butte contractors to pre- vent their doing the needed work to make the houses habita- ble. This resulted in 8(b)(4)(B) charges lodged against Re- spondent Carpenters, Respondent Council, and the Laborers Union. The issue was litigated and a Board decision was issued on January 29, 1971, in Southwest Building Trades 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Council of Montana, et al. (John A. Bender) 188 NLRB 224, herein called the Bender case. The Board found the conduct of all three labor, organizations to be violative of Section 8(b)(4)(ii)(B) of the Act. An examination of the decision makes it apparent that the unions viewed with alarm the entry of-prebuilt houses into the Butte area. Their objections were expressed both in terms of the nonunion manufacture of such houses, and fear of loss of jobs by local craftsmen should many of these prebuilt houses reach the area. It was the latter that appears to have been the primary concern of James Cadigan, then and still the Carpenters business agent, for he is reported to have expressed himself by stating "Our dispute is protecting the work of our people." The Board found, however, that even a work preservation object would not insulate the unions from 8(b)(4) sanctions in the existing circumstances, because they were exerting their pressures on the wrong persons, and thus were using a proscribed means of enforcing even a lawful object. At the time of Bender, none of the unions had a contract containing a work preservation clause of any sort. Thus the contractors had neither a con- tractual obligation nor the power to give any of the work on the houses to any of the Butte unions except for the founda- tion and stitching work. Thus it was reasoned that at this time, the real dispute of the unions was with Interstate and Bender. Therefore'pressures directed against the contractors involved them in a dispute not their own, with an object of causing such contractors to cease doing business with Inter- state and Bender, and such conduct was found to be violative of Section 8(b)(4)(ii)(B). The decison in Bender made it clear that to the extent the unions viewed the coming of modular houses as a threat to local jobs they would be unable to pursue lawful work preser- vation objects without, at the very least, negotiating a con- tract with a lawful work preservation clause. The contract which Respondent Carpenters had with the Butte contractors came up for renewal in the spring of 1971. Respondent Car- penters proposed a work preservation clause in the new con- tract for the ostensible purpose of protecting the onsite jobs of its members against the apparent erosion that they en- visaged would come about should fully prebuilt houses be brought into the Butte area. The contractors resisted such work preservation proposals.' The associations argued that the inevitable effect of the work preservation proposals would be to make it impractical or impossible for modular houses to be brought in and sold in the Butte area. They further argued that the lower price range of these modular houses was sufficiently below that for stickbuilt houses that their entry into the area would not interfere with or diminish the stickbuilt market but would open up a new market, and that this would have the ultimate effect of providing added work for the Butte labor market. Respondent Carpenters, however, was not persuaded of the validity of these claims and re- I The contract negotiations involved all 50 of the contractors engaged in carpentry work in the Butte area Previous negotiations had been carried on by an association known as Silver now Employers Association, which had been comprised of some of the larger contractors in the area. Former prac- tice had been for smaller contractors to become individual parties signatory to negotiated agreements. In the 1971 negotiations, however, a new associa- tion, known as Butte Contractors Association, which included the smaller carpentry contractors, was formed The two associations carried on the 1971 negotiations jointly When agreement was finally reached, identical con- tracts were signed by both associations mained adamant in insistence that the new contract must have a work preservation clause. Other bargaining issues were resolved, but failure'to agree on a work preservation clause precipitated a strike in May ,1971-that lasted, for ap- proximately 90 days. At the end of this-time, the contractors capitulated and the associations signed two identical con- tracts, each containing article XXII, which reads in relevant part as follows: Contracting or Sub-Contracting of Work to be Done at the Site of Construction' Section 1. Application. The Employers are in the con- struction industry and both parties have elected to come under the proviso applicable to the construction industry contained in Title 29, Section 158(e) of the United States Code as amended. Section 2. Scope of the Foregoing.,Sections 1 and 3 of this Article relates to contracting or sub-contracting and work to be done at the site of the construction, alteration or repair of a building structure or other work. - Section 3. (A) All of the following work shall be per- formed at the site of construction, alteration, or repair- ing of the building structure or other work and shall not be sub-contracted off the job site, unless said work is done at the Employer's shop. (1) All the erection of the forms for basements and/or footings for the structures. Nothing herein shall be construed to apply to prebuilt forms which have, through past practice, been utilized by the Employers. (2) The installation of all exterior siding or finishing, or, in the alternative-, all wallboards and/or paneling. (3) The installation of all exterior trim on the struc- ture, or in the alternative, all interior trim on the structure. (4) The installation of all interior doors on the struc- ture. (5) The shingling of all roofs, whether wood, metal, or composition material. (6) Installation of all cabinets and shelving. (7) The cutting and installation of all wooden stairs and/or bannisters. (8) The installation of all form work for steps and/or stoops . . . . (9) The placing and fastening of all components of the structure upon the foundation. (B) Nothing herein shall apply to any structures in the following situations: (1) [Omitted] (2) When the construction work done by the Em- ployer at the site of a pre-assembled or pre-built single family dwelling unit consists of building independent structures such as garages or other structures that are not part,of the unit itself. (C) No Employer shall be discriminated against, nor be adversely affected by the Union, for accepting and completing any sub-contracted work that conforms to Paragraph A of this Article. (D) Nothing herein shall be construed to restrict work by carpenters or contractors when pre-fabricated or pre-built components of construction not listed in CARPENTERS, LOCAL 112 909 Paragraph A are utilized, installed or assembled at the site of construction. Business Agent James Cadigan testified at length concern- ing article XXII. Cadigan stated that at all times he and the membership of his Union feared that bringing modular homes into the Butte area would cause union members to lose work that had been traditionally performed by the carpenters because such work had already been done at the factories. Cadigan insisted that his concern was not with having his members do the factory work, nor with whether or not such factory work had been performed under union or nonunion conditions, but that the membership feared erosion of work opportunities should modular houses arrive at the jobsite with so much of the carpenters' traditional, and formerly necessary, jobsite work already completed. Cadigan testified that he viewed the prospects for expanding employment for carpenters in Butte to present no cause for optimism. Cadigan noted that in the past 80 years membership in Respondent Carpenters had dropped from nearly 1,000 to 400. Cadigan stated that the economic health of Butte had long depended on the functioning of the Anaconda Copper Co. In the past 10 years the Carpenters membership had fluctuated between 300 and 400 with a top figure being reached only during those times when some special Anaconda project was under way. Cadigan noted that residential construction had been reason- ably active for a period recently because of certain Anaconda expansion plans, but that in the future he saw nothing, either in the Anaconda situation or elsewhere to support an optimistic view as to substantial residential construction. It was such considerations that made the membership deem it appropriate to take whatever steps were available to retain for themselves all the traditional jobsite work possible. Cadigan noted that in the negotiations Carpenters had been willing to agree to accept prefabrication in substantial measure, and that article XXII permits substantially completed factory- built houses to be brought in. He stated the sole purpose of article XXII was to insure retention of a certain minimum number of jobs. Article XXII represents a compromise. It permits carpen- ters to work on prefabricated houses delivered to a jobsite with either the "exterior siding or finishing" left off, or in the alternative, "all wallboards and/or panelling" left off. In ad- dition, it requires the house to be delivered with either "all exterior trim" left off, or in the alternative, "all interior trim" left off. Also, article XXII provides that the installation of all interior doors, the shingling of all roofs, the installation of all cabinets and shelving, the cutting and installation of all wooden stairs and bannisters, the installation of all form work for steps and stoops, and "the placing and fastening of all components of the structure upon the foundation" must be performed by jobsite carpenters. Cadigan acknowledges this to mean that the structure would arrive at the jobsite as somewhat of a shell. However, he interprets article XXII to mean that every bit of the work enumerated must be given to, and performed by, the jobsite carpenters or there will be a violation of article XXII. Article XXII also provides that jobsite carpenters must perform foundation work and install stairs and bannisters. These are items which in a usual situa- tion a contractor would be asked to perform on a modular house delivered to a jobsite. Cadigan interprets article XXII to mean that unless jobsite carpenters are given all the other work set forth in article XXII, it will be a violation for a contractor to perform any work whatsoever even though such traditional carpenters' work is absolutely essential to make the modular house habitable. Summit Valley and Boise Cas- cade houses as currently manufactured arrive at jobsites with most of the article XXII work completed. Cadigan states that this means that any work a contractor does on foundations, stitching or otherwise on such a house, would be violative of article XXII and any member doing such work would be subject to fines or other union discipline. The record establishes that while it may not be impossible to manufacture or deliver structures in the unfinished state required by article XXII, both Summit Valley and Boise Cascade deem such a mode of operation to be impractical. In substance, each would regard a structure only completed so as to conform to article XXII as a different product from the fully finished modular house each now delivers. Each believes that to undertake the fabrication of such a product would defeat many of the economic advantages of their current production line manufacturing process. They also see dangers of damage in transit both from the lack of rigidity of such a structure and from its unenclosed state in inclement weather. Each would also foresee problems in getting insurance and adequate financing for an unfinished house. In addition each views such an unfinished house as far less marketable, and in all likelihood ultimately more costly. A production change to produce such unfinished houses would be a major one which each would regard as highly undesirable even though theoretically possible. In view of the foregoing, I am satisfied, and find that enforcement of article XXII as interpreted by Cadigan would make it impossible for any Butte contractor to do any of the work necessary to make the Summit Valley and Boise Cas- cade modular houses habitable. Thus enforcement of the clause would force or require such contractors to cease doing business with these two manufacturers unless and until they changed their mode of operation so as to deliver their houses to jobsites in the unfinished state required by article XXII. Agreement on article XXII was reached by the Charging Parties in August 1971. The employer- association brought 8(b)(4)(i)(ii)(A) and 8(e) charges against Respondent Carpen-' ters charging article XXII and the efforts made to obtain it to be unlawful within the meaning of Section 8(e). The issues raised by these charges were litigated and the Board issued a decision on November 9, 1972, in Silver Bow, supra. The Board dismissed the complaint in its entirety, finding that the work tasks set forth in article XXII, "constituted work cur- rently, traditionally and historically performed by its mem- bers, and that their effect upon the use by contractor mem- bers of modular homes, whether unionbuilt or otherwise, was purely incidental." The Board's conclusion rests primarily upon its evaluation of the Supreme Court decision in National Woodwork, supra. In National Woodwork, the Supreme Court, under circumstances to be more fully discussed below, found a union's efforts to obtain and enforce a clause designed to preserve traditional work of a contracting union to be a lawfully primary endeavor. In Silver Bow, the Board noted, however, that the Supreme Court had not passed upon a work preservation issue where the contracting employer had no control over the nature of the product brought to the jobsite. The Board also noted that in Silver Bow the litigation was 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD limited to a consideration of the language of article XXII on its face, for at the time of the hearing no attempt had been made to enforce the provisions of the clause . Thus the legality of any enforcement attempt was not before the Board at that time. What, if any, effect subsequent efforts in that direction would have on the lawful nature of the clause itself is an issue in the instant case and will be considered below. C. The Events Immediately Preceding and the Incidents Resulting in the Charges in the Instant Cases While the so-called Silver Bow case was still pending, Re- spondent Carpenters took no steps to enforce article XXII. However, after the Administrative Law Judge issued his deci- sion in May 1972, Respondent Carpenters , believing the le- gality of the clause to have been resolved in its favor , under- took to implement its enforcement . Thus it was between May 1972 and November of the same year when an injunction issued that the particular circumstances and incidents relat- ing to the enforcement of article XXII took place. In January 1972, Jack McLeod and Associates, a Butte real estate firm, became the franchised dealers for marketing Boise Cascade houses in the Butte area. McLeod 's customers were offered a choice of a suitable plan from among those available from Boise Cascade; McLeod would then forward the customer's order to Pocatello for manufacture; McLeod would then assist the customer in obtaining local financing; and McLeod would assist and direct the customer in making needed arrangements with local contractors for putting in a suitable foundation and performing the needed stitching work. It was the responsibility of Boise Cascade to transport- the house from Pocatello to the Butte area. This would be done by a house-moving contractor chosen by Boise Cascade. At times material to us, Boise Cascade used the services of Reed Lemmons, who both transported the house and placed it on a waiting foundation.2 At times, McLeod would pur- chase a Boise Cascade house himself to sell on speculation. In such cases, McLeod would make his own arrangements with local contractors. In other cases, it would normally be the customer who assumed this responsibility with McLeod acting only in an advisory capacity. Summit Valley is a local Butte enterprise. It did not come into being until June 1972. Summit Valley is owned by a number of Butte residents including Gene Spolar who, in addition to being part owner, also serves as plant manager. Prior to undertaking the management of Summit Valley, Spo- lar had been a building contractor in the Butte area, owning and operating a business known as Spolar Construction, Inc. Spolar Construction , Inc. was party signatory to the collec- tive-bargaining agreement with Respondent Carpenters which includes article XXII . Although Spolar Construction, Inc., may still exist as an entity, it does not appear to have functioned actively as a building contractor after Summit Valley began its operations in June with Gene Spolar in charge. In hiring employees for Summit Valley, Spolar made no effort to hire employees skilled in any building construc- tion crafts. Instead, from the outset, Spolar hired unskilled workers and undertook to give them job training in the manu- z In the record the name of this contractor is variously referred to as "Red Lemon," "Reed Lemons," and "Reed Lemmon." All references are to the same housemover. facturing process. Respondent Carpenters initially believed Spolar Construction to be operating the plant in violation of its contract and its bargaining obligation and it filed charges relating to such conduct. These charges were subsequently withdrawn by Respondent Carpenters when it learned that Summit Valley was an entirely separate entity. Shortly after the plant opened, Butte Teamsters Union , Local No. 2, herein called the Teamsters, undertook to organize the Summit Val- ley plant employees. Neither at that time, nor at any time later, has Respondent Carpenters made any claim to repre- sent the plant employees at Summit Valley. Summit Valley accorded the Teamsters recognition as the statutory represen- tative of its employees, and in September 1972 executed a contract with the Teamsters covering the working conditions of such employees. The bargaining unit is described as "all production workers, fabricators , erectors, assemblyline work- ers, maintenance workers, cleanup workers, watchmen, and drivers employed by the employer at its Butte, Montana, operation." Aside from the alleged unlawful nature of article XXII itself, the other conduct claimed to be unlawful falls into two general categories : (1) pressures directed against the Butte contractors bound by article XXII or against the employees of such contractors ; and (2) pressures directed against Sum- mit Valley or Boise Cascade either directly or through their agents or employees, including a work assignment issue which involves Summit Valley alone. 1. Incidents involving the contractors Pressures were directed against various of the contractors bound by article XXII with respect to work to be done at Butte jobsites on modular houses manufactured by both Sum- mit Valley and Boise Cascade. The Jovick incident.- Jovick Construction , Inc., is a local Butte contractor. Jovick had been engaged to install a house foundation and attached garage at a Butte jobsite. At the time he undertook the job, Jovick had no knowledge that the owner was planning to place a Summit Valley house on the foundation. On October 3, 1972, Cadigan directed Leo Cal- caterra, a union member that Cadigan observed shingling a roof on an attached garage, to stop work . Cadigan told Cal- caterra that "these modular homes are unfair to our con- tract," and that "we weren't supposed to work on them." Calcaterra immediately left the job and reported to Jovick. Subsequently, Jovick met with Cadigan who told him in sub- stance that he could not put in foundations for, or do any work whatsoever on, Summit Valley houses unless and until they came to a jobsite in the unfinished condition required by article XXII . Cadigan concedes that he told Jovick that any work on a Summit Valley house would be a violation of article XXII. When Jovick continued to work on thejob after learning this from Cadigan, charges were brought against him as a member of Respondent Carpenters for violating his union obligations . The union trial committee found Jovick guilty of violating his obligation to "abide by the rule of the majority, which says that he will do the work under Article XXII." The trial committee recommended that Jovick re- ceive the maximum penalty.' 3 At the same trial, Jovick was also found guilty of using his two sons to help in erecting concrete forms The General Counsel suggests that Cadigan (Continued) CARPENTERS, LOCAL 112 The Perusich incident: Bill Perusich, another Butte con- tractor, had been engaged to install a foundation for what he later learned was a Boise Cascade house. On or about August 24, 1972, when two of his employees were working on such job, Cadigan appeared at the jobsite and told the employees that they "couldn't work on this particular job." Responding to their questions Cadigan advised them "that McLeod was unfair" and had "brought scab labor and set the houses up on the foundation." Cadigan also advised the employees that union members "were either going to get 50 percent of the work on the houses, or [they] weren't going to do any of it," and that if they continued working on the job they might be fined. Perusich later saw Cadigan about the problem and obtained permission from him to finish up his work on that one house. Cadigan, however, made it clear to Perusich that unless McLeod or Boise Cascade fully complied with article XX][I, there was to be no more work on such houses. Cadigan admits that he ordered the employees off the job, and that he discussed the requirements of article XXII with Perusich. The Lutey incident: Lutey Construction, another Butte contractor, had an employee working on foundation forms for a Boise Cascade house. On October 13, 1972, Cadigan ordered the employee off the job, telling him that union mem- bers were not to work on modular houses, and that if he continued to work on the job "he could be in serious trouble." The employee left the job. Lutey subsequently communicated with Cadigan who explained that under article XXII he should not work on any modular houses whether the work related to foundations or any other thing. Cadigan did, how- ever, give Lutey permission to strip the forms that had al- ready been put in. Lutey sent his son to the job for this purpose a few days later. The son came to the jobsite at a time that 'Lemmons was in the process of placing a Boise Cascade house on the foundation. According to the son, Cadigan ar- rived at the job and told him "that he had better pick up his tools and get off the job, that this was a nonunion job." Cadigan's version of the incident does not differ substantially. He admits that he ordered the employees from the job be- cause any work on a Boise Cascade house would be done in violation of article XXII . He states, however, that the fact that Lemmons Moving Co . was nonunion was an irrelevant consideration because, even had the contractor himself been placing the house on the foundation, this too would have been in violation of article XXII, and the employees would have been directed to leave the job, and they and the contractors, had they declined to follow such directions , might have been subjected to union fines. In none of the foregoing incidents did any contractor have power to control the state of completion in which the modu- lar house was to come to the jobsite. As we have seen with the exception of the foundation and some of the needed stitching work, the modular houses being sold by Summit Valley and Boise Cascade arrived at the jobsite with all other article XXII work, both inside and out, completed. Thus, in ordering Jovick to cease using such forms was harassing him because the forms belonged to Gene Spolar and that this was just another facet of the unlawful pressure. I am not satisfied from this record that the charges relating to Jovick's sons necessarily have a direct relationship to the issues with which we are concerned in this proceeding and accordingly make no finding relating thereto 911 although the construction of a foundation and the required stitching were essential to make the houses habitable, the contractor was powerless to perform any of the other article XXII work because it already had been done. It was the purchaser, not the contractor, who was responsible for the type of house to be delivered . The manufacturers , Summit Valley or Boise Cascade, alone directly controlled the fin- ished or unfinished state of the houses they were marketing. 2. The pressures against Summit Valley, Boise Cascade, their agents or employees With respect to Boise Cascade there were several incidents involving pressures directed against its agents or employees which are claimed to constitute unlawful inducement or coer- cion within the meaning of Section 8(b)(4). With respect to Summit Valley, the alleged unlawful pressures concern a pat- tern of events allegedly aimed at both enforcing article XXII and compelling the work assignment. The Lemmons incident: Reed Lemmons is a housemover under contract with Boise Cascade to deliver Boise Cascade houses to the Butte area. In early August, while Lemmons and his crew were placing a house on a foundation , Cadigan visited the jobsite. According to Lemmons, Cadigan asked if Lemmons' employees were union and , upon learning that they were not, told Lemmons he must leave the jobsite. Ac- cording to Lemmons, he understood Cadigan to represent that setting a house on a foundation was carpenters' work, and that Respondent had an agreement with Boise Cascade that houses were not to come to the jobsite fully built but in an unfinished state so that carpenters could finish them. Lem- mons declined to leave explaining that the house belonged to McLeod and that he would leave only if McLeod told him to. At this point, Lemmons says Cadigan replied, "I'll have pick- ets out at 8 in the morning." Cadigan concedes he was aware that the house had been manufactured by Boise Cascade, and admits telling Lemmons that the work of unloading the house belonged to the carpenters. He also admits asking Lemmons if the crew belonged to any local of the Carpenters Union although he denies threatening Lemmons that Carpenters would picket if he refused to leave Lemmons completed his unloading work and no picketing ever ensued. The McLeod incident: Following the confrontation with Lemrnons, McLeod and Cadigan met several times and dis- cussed the problems of bringing in Boise Cascade houses. Although there are some differences in the versions of each as to what transpired in these discussions there is no basic conflict. Thus, Cadigan made it clear to McLeod that the work of placing modular houses on foundations belonged to the Butte carpenters . He also made it clear that houses were not to come into the Butte area unless they were in the partially unfinished state required by article XXII. Cadigan suggested that possibly McLeod's dealership indicated he was going into the contracting business , and that if this were so, like all other contractors in the area he must also be bound by"article XXII. Admittedly, Cadigan presented McLeod with a copy of the contract and suggested that he sign it, indicating that unless he did so, Respondent Carpenters would take steps to see that no more Boise Cascade homes were brought into Butte. I view Cadigan's confrontations 912- DECISIONS OF NATIONAL LABOR RELATIONS BOARD with McLeod as one facet of his efforts to press for enforce- ment of article XXII. Basically, and this is not denied by Cadigan, he was representing to McLeod that no houses were to come into Butte that did not meet the requirements of article XXII. If McLeod were to undertake the work himself as a contractor, he too was to be bound by article XXII. If local contractors were to be hired, they would only function pursuant to article XXII. Essentially, Cadigan was threaten- ing McLeod either with picketing or with other consequences if he continued to bring Boise Cascade houses into the area in their present finished state. He was pressing McLeod either to stop bringing them in altogether, or else to make such changes in his arrangements with Boise Cascade that they would come in the unfinished state required by article XXII. The Garry and Pratt incidents: Possibly as a result of the difficulties McLeod was having in placing the Boise Cascade houses on Butte jobsites, at some point in late September or early October, Boise Cascade assigned two of its Pocatello employees, David Garry and Doyle Pratt, to do needed stitching work on Boise Cascade houses in the Butte area. Both Garry and Pratt were members of Carpenters Local 1258 in Pocatello. Before going to work in Butte both visited Cadigan at his office. According to Garry, when they ex- plained their purpose in coming to Butte, Cadigan stated, "There is no work for Boise Cascade," because Boise Cascade "is not signatory to our local agreement." Following this, Garry stated, Cadigan told them that if they went to work, "We will slap a picket on the job." Upon receiving this infor- mation, the two employees advised Cadigan that both were members of a carpenters local in Pocatello and that neither had come to Butte to cause problems there. The two men left and advised McLeod that Cadigan "would not let [them] go to work." Thereafter, both returned to Pocatello. Cadigan denies that he ever indicated that Boise Cascade should sign a contract with his union, or that he ever threatened to picket the job if the men worked on it, but he concedes that he did discuss article XXII with them at some length, and he con- firms that they voluntarily agreed that they did not wish to cause problems in Butte and would return to Pocatello. The Summit Valley incidents.- As we have seen, Summit Valley entered into a contract with Teamsters shortly after it commenced its operation in June 1972. While this agreement was primarily applicable to the production and maintenance workers at the plant itself, it contained a provision which reads as follows: "The employer recognizes the jurisdiction of the Union over all manufacture and assembly work, includ- ing following the product to its final destination and prepara- tion of the site, so as to preserve and protect the integrity of the products manufactured by the bargaining unit." The Jovick incident establishes that because of article XXII employees of the contractors were not to do onsite work on Summit Valley houses. Accordingly customers of Summit Valley requested that Summit Valley undertake the needed work pursuant to the contractual provision in the Teamsters contract above set forth, in order that the modular houses purchased from Summit Valley might be made habita- ble. It was shortly after this that Respondent placed a picket at the Summit Valley plant. The picket carried a sign reading: "This employer does not employ members of Carpenters Union in the work to be performed on this building. Local 112, Carpenters Union, AFL-CIO." The building referred to in the picket sign was a completed modular house manufactured by Summit Valley, which was situated in close proximity to the picket sign. This picketing brought about the charges filed by Summit Valley in Case 19-CD-212. This case - in combination with Cases 19-CC-588 and 591 resulted in the General Counsel obtain- ing a 10(1) injunction from a U.S. District Court which issued on November 8, 1972.' Following a 10(k) hearing in Case 19-CD-212, the Board issued a Decision and Determination of Dispute in United Brotherhood of Carpenters & Joiners of America; 202 NLRB 974, on April 6, 1973. The findings of the Board as set forth in that decision need not be repeated here. Suffice it to say that the Board concluded that employees of Summit Valley, currently represented by Teamsters, "are entitled to the work of manufacturing or building of prebuilt or modular homes and other structures, including work necessary to make these structures habitable, to the extent that all such work is claimed by the United Brotherhood of Carpenters & Joiners of America, Local 112, AFL-CIO, pursuant to its collective bargaining agreement with Silver Bow Employers Associa- tion and Butte Contractors Association." (Emphasis sup- plied.) Thereafter, Respondent Carpenters advised the Re- gional Director that it would not require Summit Valley to assign work in violation of the Act but stated further: That the Union affirms that it has the right, and will under some circumstances use its rights under the Na- tional Labor Relations Act, to truthfully advise the pub- lic, whether by picketing or other publicity that the Sum- mit Valley Industries, Inc., does not employ members of, or have a contract with the United Brotherhood of Car- penters & Joiners of America, Local 112, AFL-CIO, if, in fact, such is the truth and such picketing or publicity is for the sole purpose of advising the public of the situation. Inasmuch as Respondent Carpenters had made a similar in- formational claim during the course of the 10(k) hearing the Regional Director did not construe the language set forth above as an unequivocal disclaimer of Carpenters interest in obtaining the onsite work. Accordingly, the complaint in the CD case was issued. No evidence was adduced in the instant proceeding indicating that the situation thereafter has changed in any particular. 3. Summary as to the incidents All violations of Section 8(b)(4) have a dual aspect. First, they must show conduct which amounts to unlawful induce- ment of employees, or restraint and coercion of employers, and thus it must be shown that such conduct was undertaken for an object proscribed by the statute. The incidents which have been set forth above are substantially undisputed. While some variance exists in the testimony of Cadigan and that of other witnesses with respect to happenings regarding in- 4 By terms of the injunction Respondent Carpenters was enjoined from picketing or otherwise inducing employees of Jovick with an object of forc- ing Summit Valley to assign work to employees represented by Respondent Carpenters rather than represented by Teamsters, and also enjoined from unlawful enforcement of art. XXII by forcing the contractors to cease doing business with McLeod or Boise Cascade Such injunction is still in effect CARPENTERS, LOCAL 112 dividual incidents, the central thrust of Cadigan's conduct whether with respect to employees, contractors, or others, stands out clearly. Respondent Carpenters had undertaken a 3-month strike to obtain a work preservation clause which it believed to be lawful. The legality of the clause had been attacked, but after litigation and an initial decision the Car- penters position on article XXII had been upheld. The clause was apparently lawful within the meaning of National Wood- work Understandably Cadigan now deemed it appropriate to enforce it and he proceeded in a forthright and undisguised manner to do so. Clearly Cadigan's directions to employee-members of Re- spondent Carpenters to leave jobsites in the Jovick, Perusich, and Lutey incidents represent inducement of employees within the meaning of Section 8(b)(4)(i) and I so find. Cadi- gan's discussions of article XXII with the employer contrac- tors occurring in connection with the same incidents were intended to be and clearly came through as threats of reprisal should the contractors continue to work on modular houses arriving at jobsites in a condition which did not conform to the requirements of article XXII. Such conduct by Cadigan constitutes restraint and coercion of such employers within the meaning of Section 8(b)(4)(ii), and I so find. The foregoing incidents each involved employers bound by the provisions of article XXII. The Lemmons, the McLeod, the Garry-Pratt, and the Summit Valley incidents each in- volve conduct directed against persons not in privity of con- tract with Respondent Carpenters. The threats or induce- ment by Cadigan, however, are equally well established. Despite his denial, I have no doubt that Cadigan threatened Lenunons with the possibility of picketing should Lemmons continue to place Boise Cascade houses on foundations. Cadi- gan was also threatening McLeod with reprisals should he continue to bring in Boise Cascade houses in their finished state. Becoming bound to, and abiding by, a contract with article XXII was one way McLeod could meet the problem. Since McLeod was a dealer for Boise Cascade, this was at the same time a threat against Boise Cascade to change its opera- tion to conform to article XXII or face problems with its houses coming to the Butte area Thus I find Cadigan's con- duct toward both Lemmons and McLeod to constitute threats and coercion against each of them and against Boise Cascade within the meaning of Section 8(b)(4)(ii). With re- gard to Boise Cascade employees Garry and Pratt, Cadigan urged them as union members not to work on Boise Cascade houses in the Butte area, and indicated they might have trou- ble with his union should they attempt to do so. This was obviously inducement of these employees not to work on Boise Cascade houses in Butte within the meaning of Section 8(b)(4)(i) and I so find. With respect to Summit Valley, the picketing was both inducement of employees of Summit Val- ley and restraint and coercion of Summit Valley within the meaning of Section 8(b)(4)(i) and (ii), and I so find. Whether any or all of these incidents of restraint and coercion were for a proscribed object, and then became conduct violative of Section 8(b)(4) is to be considered below. D. The Alleged Unlawful Objects Respondent Carpenters does not seriously contest that it engaged in the various pressures, as described above, both to 913 attain and enforce article XXII. It defends such conduct by asserting that it was undertaken for the lawful primary object of obtaining and enforcing a lawful work preservation clause. The General Counsel and the Charging Parties claim the enforcement efforts against both contracting and noncbn- tracting parties to have had an unlawful object within estab- lished Board doctrine. Further, they claim that such enforce- ment efforts, coupled with various "surrounding circumstances," warrant a finding that "entering into" a con- tract containing article XXII is unlawful within the meaning of Section 8(e) and that pressures to attain it were violative of Section 8(b)(4)(A).5 To resolve these issues we must first consider the work-preservation concept as evolved by the Board and the courts, and then undertake to apply it to the facts and circumstances surrounding this case. The decision of the Supreme Court in National Woodwork sets the basic parameters of the work preservation concept.6 We will consider the holding of the Supreme Court in this case and its limitations, as well as the various interpretations later made by the Board and the courts of its full meaning. The basic issue before the Court in National Woodwork involved a so-called product boycott situation, a common occurrence in the construction industry. A product boycott may occur when an employer brings a prefabricated product (i.e., doors, cabinets, an entire house, etc.) to his jobsite, his employees are asked to install or otherwise work on such product and a union brings pressure of one sort or another, designed to prevent the employees from handling or other- wise working on the product. When the employer yields to pressure of this nature, he must, in effect, "cease doing busi- ness" with the producer of the product, and either obtain the product elsewhere or have his own employees produce it for him.' No purpose will be served by a historical analysis of 5 The General Counsel and the Charging Parties correctly point out that the term "entering into" is not limited to the initial signing of an agreement but that, at least for 10(b) purposes, a contract may be viewed as reaffirmed or "reentered into" when its terms are acquiesced in or enforced by the parties This record establishes without dispute that Respondent Carpenters pressed for enforcement of art XXII , bringing pressures against both the contractors and their employees, and that the employers yielded to such pressures. Therefore they may be said to have "entered into" the contract at the times such pressures were asserted Thus we are not precluded from considering the validity of art XXII per seas distinguished from the manner of its enforcement. Dan McKinney Co., 137 NLRB 649 (1962); Milk Drivers and Dairy Employees Local Union No. 537 (Sealtest Foods), 147 NLRB 230 (1964) 6 National Woodwork Manufacturers Association v. NL R B, 386 U.S 612 (1967) ' In relevant part Sec 8(b)(4) and 8(e) reads as follows: (4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting com- merce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport or otherwise handle or work on any goods, articles, materials, or commodities or to perform any ser- vices; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is- (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or to enter into any agreement which is prohibited by section 8(e), (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other pro- ducer, processor, or manufacturer, or to cease doing business with any (Continued) 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8(b)(4) and 8(e). Suffice it to say that the protections of employers against union pressures to cease doing business with other persons were in a measure aimed at product boy- cott situations. It is with the limitation on the degree of this statutory protection that National Woodwork concerns itself. Its basic holding is that the scope of the protection is not unlimited, and that not every situation where there is a cease- doing-business object and effect will render the pressures un- lawful. In National Woodwork, we find a subcontractor (Frouge) working at a construction jobsite. Frouge had a contract with a union whereby he had agreed that union members would not be required to handle prefabricated doors. Nevertheless, Frouge purchased and brought prefabricated doors to the jobsite to be installed. The union ordered its members not to handle them. Fabrication doors by union members was ad- mittedly their traditional work, and Frouge's contract with the general contractor did not preclude his bringing so-called blank doors to the jobsite for his employees to fabricate. The Court undertook an elaborate review of the legislative his- tory, but the justices split five to four on its meaning. All the justices agreed that if the clause be deemed lawful and en- forced it would have the necessary consequence of forcing Frouge to cease doing business with the fabricators of doors. The statute appeared to proscribe any object of this nature in explicit terms. This sufficed for the dissenting justices to find the clause unlawful. The majority, however, viewed the legis- lative history as requiring a less literal interpretation. The basic purpose of Section 8(b)(4) and 8(e) was viewed as pro- tecting neutrals against involvement in a- dispute not their own, but the majority felt this should not be construed to mean that a union must forego its right to bring pressures against the primary employer directly involved in the dispute. The fabrication clause in Frouge's contract was viewed as having as a basic purpose preservation of traditional work which had been done by Frouge's employees at the jobsite. Section 8(b)(4) and 8(e) was not to be viewed as protecting an employer against pressures where the pressures were aimed at protecting traditional work of this nature,_ even though exercise of such pressures had the collateral second- other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his em- ployees unless such labor organization has been certified as the repre- sentative of such employees under the provisions of section 9: Pro- vided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing; * * * * * (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, of class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work; * * * * (e) It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or in- plied, 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 ary effect of causing the employer to cease doing business with another person. Such effect was to be viewed as an incidental consequence, and not as a limitation on pursuit of the primary right to preserve traditional work. The clause was therefore held to be a lawful work preservation clause, and union pressures to enforce it likewise lawful. The National Woodwork holding, however, was limited in scope. As noted above, Frouge was not required by any con- tractual arrangement with his general contractor to use pre- fabricated doors. He had the power to give the jobsite fabrica- tion to his own employees, and that is all they sought. The Court stated specifically that it was not passing on a situation where a contractor did not have "control" over the work a union sought to preserve for its members. The Court also noted that determination of a work preservation object was not something casually made, but rather, something demand- ing careful inquiry. In this connection, the Court said: The determination whether the "will not handle" sen- tence of Rule 17 and its enforcement violated § 8(e) and § 8(b)(4)(B) cannot be made without an inquiry into whether under all the surrounding circumstances, the Union's objective was preservation of work for Frouge's employees, or whether the agreements and boycott were tactically calculated to satisfy union objectives elsewhere. Were the latter the case, Frouge, the boycot- ting employer, would be a neutral bystander, and the agreement or boycott would, within the intent of Con- gress, become secondary. There need not be an actual dispute with the boycotted employer, here the door manufacturer, for the activity to fall within this cate- gory, so long as the tactical object of the agreement and its maintenance is that employer or benefits to other than the boycotting employees or other employees of the pn- mary employer, thus making the agreement or boycott secondary in its aim. The touchstone is whether the agree- ment or its maintenance is addressed to the labor relations of the contracting employer vis-a-vis his own employees. This will not always be a simple test to apply. But "how- ever difficult the drawing of lines more nice than obvious, the statute compels the task." [Emphasis supplied.] In a footnote, the Court in referring to the "surrounding circumstances" indicates that such ; "might include the remoteness of the threat of displacement by the banned prod- uct or services, the history of labor relations between the union and the employers who would be boycotted, and the economic personality of the industry." Unlike Frouge, the Butte contractors could not control the type of house that would be put on a jobsite. The purchaser engaged a contractor to build a foundation or do certain work on a structure he brought to the jobsite. If it were a modular house, the purchaser had selected it from the group available from the manufacturer, and the latter had determined the state of completion in which the house was sent to the jobsite. As we have seen, the Summit Valley and Boise Cascade houses were delivered with much of the article XXII work already completed. Thus the case before us falls in an area which the Supreme Court did not pass upon in National Woodwork We must therefore consider whether this control circumstance calls for a different result either with respect to CARPENTERS, LOCAL 112 915 "entering into" a contract with a work preservation clause, or in relation to its enforcement. There has been considerable post National Woodwork litigation centering on enforcement of work preservation clauses where the contracting employer had no right to control. The Board position in this area is now well established. Accordingly, we will treat with that phase of the problem first. 1. The alleged 8(b)(4)(B) violation In the cases following National Woodwork where the con- tractors have had no right to control the products coming to the jobsite the Board has consistently found pressures to enforce work preservation clauses to be conduct violative of Section 8(b)(4)(B). The Board has reasoned that in such situations the contracting employer was not really the pri- mary employer, because he was powerless to grant the union demand. Therefore he must be deemed a neutral, and the union's efforts secondary. The demand could only be met by having the manufacturer or supplier either cease to do busi- ness altogether with the contractor, or change his mode of operation to accord with the union requirement. Pressure to attain either result was viewed by the Board as a proscribed secondary object. This approach was not accepted by courts of appeal in some circuits.' The reasoning of these courts centered on their view that after National Woodwork it became improper for the Board to regard a contracting employer's right of cont rol as sufficient in and of itself to make him a neutral in the dispute. In Local 742 Carpenters, the Court of Appeals for the District of Columbia expressed its views as follows: The Board's test flies in the face of National Woodwork in three respects: (1) It elevates one circumstance- where the immediate "control" lies- to per se status, rather than evaluating "all the surrounding circum- stances." More than mere form is at stake here. The Supreme Court properly recognized that realistic assess- ment of the union's objective in a particular situation is a complex, subtle matter and must depend on a variety of evidential factors. A mechanical per se rule simply can- not sift and weigh the evidence with the required sensi- tivity. (2) A more basic failing of the "right to control" test under National Woodwork is that it focuses on entirely the wrong set of circumstances. It is concerned solely with which party presently has the power to satisfy the union's objective, rather than focusing on the sub- stance of the object itself. Thus it misses the point of the primary-secondary distinction as set forth in National Woodwork. (3) And more particularly, the Board's test fails to evaluate the substance of the union's objective by looking to see whose labor relations it is addressed to. That is the crucial matter under National Woodwork. If the union's grievance has to do with some third party's relations with his employees, the pressure it exerts against ' NLRB v. Local Union 164, LB E. W., 388 F.2d 105 (CA 3, 1968), Local 636, Plumbers Union, (Mechanical Contractors Association ofDe- troet) v N.L.R B, 340 F.2d 906 (C.A D.C„ 1970); American Boiler Manu- facturers Association v. N.L RB, 404 F 2d 556 (C.A. 8, 1968); Local 742 Carpenters Union (J.L Simmons Co.) v N.LR B , 444 F 2d 895 (C.A.D.C., 1971) its members' employer may well be secondary. But National Woodwork makes clear that, if the grievance has to do with the labor relations of the pressured em- ployer with his own employees who are exerting the pres- sure, then the activity is probably primary and permissible under Section 8(b)(4)(B). The Supreme Court has held that an objective of preserving traditional work for the union's members with the pressured employer is definitely primary. The fact that the employer may have to cease doing business with another party to satisfy the union's demand is a permissible ancillary effect. Of course, there may be cases where the union's objective is not clearly, or only partly, to preserve its members' work. But the per se "right to control" test would declare an activity to be secondary without any inquiry whatever into such matters. In the instant case full acceptance of the rationale of these cases could lead to a holding that the execution and enforce- ment of article XXII was lawful. The Board, however, has expressed continuing disagreement with the approach taken by these courts. At the present time, the Court of Appeals for the Fourth Circuit has upheld the Board in its approach to the problem. The Board case in which its view has been most fully explicated is Local No. 438, Plumbers Union (George Koch Sons) 201 NLRB 59 (1973), herein called Koch. Since it is the Board's view that governs disposition of the issues here, we must take a somewhat detailed look at the Board's approach in Koch, and then consider its applicability to the circumstances which confront us. George Koch & Sons had a contract to manufacture and install certain industrial finishing systems in a General Elec- tric Company plant. The contract ,with General Electric called for certain of the pipes to be prefabricated and pre- tested before being installed. Koch subcontracted the installa- tion of all pipe at the General Electric plant to Phillips Plumbing & Heating Co. Phillips had a contract with Re- spondent union which provided, in substance, that all pipe used on the job had to be cut and threaded by union members at the jobsite. The Board conceded that the contract clauses "are valid work preservation clauses and that to their actions alleged as violations here, the Respondents were motivated by work preservation aims . . ." When Koch shipped prefab- ricated pipe to the plant to be installed by the Phillips em- ployees, the latter were instructed by their union to refuse to do the work because the prefabricated pipe did not meet the contractual requirement calling for jobsite cutting and threading. This conduct resulted in the filing of 8(b)(4)(B) charges. The Board found the conduct-violative of the Act. In its decision, the Board noted that Phillips, in contrast to Frouge in National Woodwork, had no control over the type of pipe he was to install. The contract between Koch and General Electric specified that in certain areas prefabricated pipe was to be installed. The work on such pipe had already been done when it reached the plant. Thus Phillips was pow- erless to assign the cutting and threading of such pipe to his own employees. The Board concluded that although a union might legitimately enforce work preservation clauses in situa- tions like that in National Woodwork, it was, foreclosed from doing so where the contracting employer had no power to award the work sought to be preserved. The Board reasoned 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that although the union may have been initially motivated by a work preservation aim in seeking the contract clause, it was now bringing pressure in a situation where the particular employer was incapable of acceding to the union demand. Since the pressured employer, even though also the contract- ing employer, could not give the union the work, his position became in effect that of a neutral. The Board stated: Since it was impossible for the pressured employer to itself accede to Respondent's actions but not impossible for another to award this work, and since we have deemed it reasonable to view the object of the Respon- dent's actions not as an impossible act, but as the possi- ble alternative, we have found that the Respondent's actions were undertaken for their effects elsewhere, and that the pressured employer, here Phillips, was a second- ary. Since Phillips was a secondary here, and since the Respondent's actions did have as an object the causing of Phillips to cease doing business with Koch, the Re- spondent's actions here violated Section 8(b)(4)(B) of the Act. The Board went on to note that in finding the violation of Section 8(b)(4)(B) it was not passing on the Union's right to bring a civil suit for breach of contract. The Board further undertook to comment upon the scope of its disagreement with certain courts of appeal which had had occasion to pass on cases involving a right to control issue. The Board denied that in considering cases of this nature it had ever looked solely at the pressured employer's right to control. In this connection the Board stated: Rather, the Board has always proceeded with an analysis of (1) whether, under all the surrounding circumstances, the union's objective was work preservation and then (2) whether the pressures exerted were directed at the "right person, i.e., at the primary in the dispute. For the rea- sons set forth, supra, we think this approach fully con- forms with National Woodwork and is in fact compelled by Section 8(b)(4)(B). In following this approach, how- ever, our analysis has not nor will it ever be, a mechani- cal one, and in addition to determining, under all the surrounding circumstances, whether the Union's objec- tive is truly work preservation, we have studied and shall continue to study, not only the situation the pressured employer finds himself in, but also how he came to be in that situation. And if we find that the employer is not truly an "unoffending employer" who merits the Act's protection, we shall find no violation in the Union's pressures such as occurred here, even though a purely mechanical or surface look at the case might present an appearance of a parallel situation. The evidence shows, however, that here Phillips was anunoffending employer and that by threatening to refuse and by refusing to install the prefabricated pipe for Phillips, the Respond- ents violated Section 8(b)(4)(B) of the Act. The Board's decision was reviewed by the Court of Appeals for the Fourth Circuit, and on December 14, 1973, that court in George Koch & Sons, Inc. v. N.L.R.B., 490 F.2d 323, issued a decision fully upholding the Board. By way of further ex- plication and support, the court stated the following: The decisive question, therefore, is whether in the light of "all the surrounding circumstances" the agreements and boycott between Phillips and the unions were "tacti- cally calculated to satisfy union objectives elsewhere." We think the Board was right in concluding that they were. To begin with, since the unions were aware of the conditions in the Phillips-Koch pact, they knew that Phillips did not have control of the pipe fabrication. Consequently, their enforcement of the collective bar- gaining terms evinces the union's intention to press their objectives "elsewhere" other than upon Phillips. Moreover, Koch and the unions were not in privity; neither was bounden to the other: Koch, then, was a neutral, and yet with regard to it the unions still sought to prosecute the conditions in order to "satisfy the union objectives" beyond Phillips. This, too, is precisely- and even more emphatically-the posture of the unions with respect to G.E. To repeat, these facts confirm the Board's findings of the tactical effect. These conclusions are not gainsaid or diminished by the unions' insistence that the stipulations are enforcea- ble as work preservation measures. The Board did not nullify the clauses as work preservation assurances; they remained available for appropriate application. How- ever, regardless of their initial intendment, they could by undue extension, over and above the Phillips-employee relationship, lead to violations of Section 8(b)(4)(B) of the Act. That the clauses have been so exerted in this instance is, it appears, precisely the illegality the Board perceived in the unions' actions. Like the Board, we see Phillips as not an "offender" but rather a neutral vis-a-vis its em- ployees; therefore the effect of the strike was to compel Phillips unlawfully "to cease doing business with any other person." Granted, the efficacy of work preserva- tion covenants is not to be stunted because of the severity of their impact . . . . Nevertheless, if a result of that pressure is to cause a neutral employer [here Phillips] to terminate his business with another [Koch], then such enforcement fouls the Act. The court went on to point out that its decision did not give an employer license to contract out work without limitation. The court indicated that if there was any element of conniv- ance or complicity in which the employer was seeking to 'avoid its obligations toward the union, then a different result would be reached. However, in the instant case, there was a contract between Koch and General Electric that controlled the type of pipe that was to come to the jobsite, and Phillips did not surrender his right to control for he never had any. Although we will consider below the lawful nature of the work preservation clause itself, the 8(b)(4)(B) violation within the Koch rationale does not depend on that determina- tion. As noted above, the clause was not specifically attacked in Koch. Koch includes an express finding that the parties had a lawful work preservation clause in their contract. In Koch we had Phillips bound by a contract with a work preservation clause requiring certain traditional work to be done at the jobsite. The Butte contractors are also bound by a contract with Respondent Carpenters with a work preserva- CARPENTERS, LOCAL 112 tion clause requiring that certain traditional carpenters' work be done at the jobsite by employees of the contractors. Phil- lips had no control over the pipes to be delivered to the jobsite for installation. Koch's contract with General Electric deter- mined that some of the pipes were to be brought in a prefab- ricated state. The purchasers of modular houses engaged Butte contractors to install foundations or perform certain work on these houses after they had been placed on founda- tions. The Butte contractors had no control over the type of house to be placed on the foundation, or the condition in which such house would arrive at the jobsite. Summit Valley and Boise Cascade sold only completed modular houses with much of the work noted in article XXII already finished. In Koch, the union refused to let Phillips' employees install the prefabricated pipe, relying on the provisions of their work preservation clause. In the instant case, Respondent Carpen- ters brought pressures against the contractors and their em- ployees to refuse to work at all on Summit Valley or Boise Cascade Modular houses unless and until the employees were given all the article XXII work. There was no way whatso- ever that Phillips could give his employees the onsite pipe work. In response to union pressure, Phillips could do no more than attempt to persuade Koch or General Electric to change the basic format and give him nonfabricated pipe to install. If this were not possible, Phillips could only meet the pressure by ceasing to do business altogether with Koch at the General Electric project. There was no way that the Butte contractors could give the onsite carpentry work required by article XXII to their employees. They could respond to the union pressure only by seeking to persuade Summit Valley or Boise Cascade-to bring houses to the jobsite in the condition which article XXII required, or else by ceasing to do any work. on Boise Cascade or Summit Valley houses whatsoever. As in Koch, there is no showing in the instant case that the contractors surrendered any right to control this work assign- ment for they never had had it. The union in Koch was apparently aware that Phillips had no control over the type of pipe which was to come to the jobsite. Respondent Carpen- ters must also have been aware that the contractors did not control the condition in which Boise Cascade or Summit Valley houses were shipped to a jobsite. Under the circumstances, I see no difference in substance between the 8(b)(4)(B) issue presented to the Board in Koch and that before us in the instant case. Accordingly, I must conclude, as the Board did in Koch, that even assuming the work preservation clause to be valid and Respondent Carpen- ters to have been motivated by a work preservation aim, it, like the union in Koch, undertook to achieve its ends by the unlawful means of bringing pressures against contractors who were incapable of acceding to their demands. As in Koch, and for essentially the same reasons, this conduct must be regarded as having been undertaken for its effects elsewhere, and the pressured employers must be deemed neutrals enti- tled to the protections of Section 8(b)(4)(B). Accordingly, I find that with regard to the various pressures heretofore found to have been directed against the contractors or their employees, Respondent Carpenters was undertaking to cause such contractors to cease doing business with Boise Cascade, Summit Valley, their agents or dealers, unless or until such employers changed their operations to conform to article XXII, and that such pressures pursued for such a proscribed 917 object constitute conduct violative of Section 8(b)(4)(i)( ii)(B) of the Act. Having found Respondent Carpenters pressures against the Butte contractors to be unlawful within the Koch ra- tionale, there remains the question of whether a similar result follows with regard to the pressures directed against McLeod, Lemmons, the Boise Cascade employees, and Summit Valley. Koch tells us that the Butte contractors, like Phillips, are neutral employers, protected from pressures when they find themselves in a situation in which they are powerless to meet the Union's demands. The pressures against McLeod, the Boise Cascade employees and Summit Valley,_ even though having the same underlying work preservation aim, arise in a different context. Unlike the Butte contractors, Boise Cas- cade and Summit Valley could change their mode of opera- tion and could manufacture and deliver houses which would leave the article XXII work for the jobsite carpenters. It is a fair assumption that in asking McLeod, the Boise Cascade dealer, to sign a contract with article XXII, Cadigan was pursuing another means of pressing Boise Cascade either not to send its modular houses to the Butte area, or, if doing so, to bring them in with the article XXII work still to be done at the jobsite. A similar aim seems likely with regard to the direct pressure Cadigan brought to bear on Lemmons and the Boise Cascade employees. Likewise, the picketing of Summit Valley was designed in part to press that employer, either to deliver the houses to the jobsite in a condition which con- formed to article XXII or else not to deliver them in the Butte area at all. Unlike the Butte contractors, however, neither Boise Cascade, Summit Valley, Lemmons, nor McLeod had ever had a contractual relationship with Respondent Carpen- ters covering any work to be done by their employees. To the contrary, Cadigan expressly disclaims interest in representing plant employees of either Boise Cascade or Summit Valley, while McLeod is a Butte realtor who has never directly em- ployed carpenters. Underlying National Woodwork is the concept that a union may protect traditional unit work of employees who are working for a particular employer. Necessarily this envisages the existence of an established bargaining relationship be- tween the union and the employer, or there will be nothing that can be preserved. In Koch the Board carried the concept a step further holding the union, in effect, had no work to preserve when the employer, without connivance or com- plicity, was unable to give his employees the work because of circumstances beyond his control. If in a Koch situation the pressures against a contracting employer be deemed second- ary, similar pressures directed against a noncontracting em- ployer present an a fortiori situation. Although the latter, unlike the former, might not be powerless to meet the union's demands, the pressure against him can scarcely be viewed as having a primary work preservation object, because no bar- gaining unit or bargaining relationship exists. The pressure is thus not addressed to the "labor relations of the contracting employer vis-a-vis his own employees" but must be seen as "tactically calculated to satisfy union objectives elsewhere" and therefore as secondary. The pressures here that were directed against the noncontracting employers may reasona- bly be viewed as having an object of forcing or requiring them either to bring houses into the Butte area with article XXII work still to be done, or to cease bringing them in altogether. 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Either alternative would be a proscribed object. Accordingly, I find that by such pressures Respondent Carpenters has engaged in conduct violative of Section 8(b)(4)(i)(ii)(B) of the Act.9 2. The allegation that entering into article XXII was violative of Section 8(e) and 8(b)(4)(A) The initial charges were limited to alleging violations of Section 8(b)(4)(B) and 8(b)(4)(D) by conduct relating to the enforcement of article XXII. The` 8(e) and 8(b)(4)(A) charges filed by the Chamber were made at a considerably later date. The General Counsel and the charging parties urge that the record supports a finding that "entering into" a contract with article XXII is violative of the latter two sections. The Car- penters regards the lawful nature of the clause itself as al- ready resolved by the Silver Bow case. The Chamber consid- ers the 8(e) and 8(b)(4)(A) violations as the central issue in this proceeding. The Chamber undertook to adduce consider- able testimony both through experts, and by others, to sup- port its contentions, and made an elaborate and able presenta- tion in its brief on the issues. The Chamber notes that the Supreme Court in National Woodwork stated that resolution of a work preservation issue "cannot be made without an inquiry into whether, under all the surrounding circumstances, the union's objective was preservation of work . . . or whether the agreements and boycott were tactically calculated to satisfy union objectives elsewhere." The Chamber argues that such inquiry is re- quired because National Woodwork makes it clear that in sanctioning a work preservation clause, the Court is not in- sulating every contractual work restriction against an 8(e) ban. The underlying purpose of Section 8(e) and 8(b)(4) is to limit the area of dispute to the primary disputants, and to avoid involving others therein, or disturbing business rela- tionships a disputant may have with others. A work preserva- tion clause, even where found lawful, necessarily has an inci- dental "cease doing business effect." This demands careful scrutiny of the "surrounding circumstances" whenever work preservation is claimed to make sure that the clause itself has a true work preservation object, and does not represent a subterfuge or a pretext covering an object elsewhere. The Chamber notes that in defining the "surrounding circum- stances" the Supreme Court stated that such "might include the remoteness of the threat of displacement by the banned product or services, the history of labor relations between the union and the employers who would be boycotted, and the economic personality of the industry." The Chamber con- tends that to approach the issue in any given case we must evaluate a union's conduct by considering the foreseeable 9 To the extent the Board's decision in Bricklayers Local 8 (California Concrete Systems), 180 NLRB 43 (1969), appears inconsistent with this, I regard the rationale expressed therein as having been superseded by the more fully expressed rationale in the Koch case In California Concrete Systems the Board indicated that a union might lawfully picket a general contractor who had control of sending in the prefabricated item, even though precluded from picketing the contracting employer who did not have such control Although the Board did not deal directly with pressures di- rected against a noncontracting employer in Koch, for reasons which have been set forth above, I view the more fully explicated rationale in Koch with regard to work preservation cases as superseding any seemingly contrary expressions in California Concrete Systems. I believe the view which I have adopted above to be more consistent with the Koch rationale. consequences of its demand. It is urged that, in determining whether its efforts to obtain a work preservation clause are bona fide and not "tactically calculated elsewhere," the proper test is one that involves objective considerations and does not depend upon any subjective hope or desire of the union. The Chamber defines its objective test as "one which deduces an unlawful objective from the foreseeable impact of the union's conduct without regard to the `union's subject belief or motivation in securing the clause." While the Cham- ber would not ignore subjective considerations, or any evi- dence relating to a union's expressed purpose in seeking a work preservation clause, it would not regard such considera- tions as controlling in the face of objective circumstances. Principal reliance would be placed on evidence relating to "the economic personality of the particular industry" and the "remoteness of the threat of displacement of the banned prod- uct or services. . . ." The Chamber's claim in this regard is expressed in the following language from its brief: Incorporation' of these criteria clearly manifests an in- tention that among "the circumstances" to be consid- ered in determining the legality of such clauses is a rela- tive assessment of the probable impact of the clause upon the industry targeted for boycott against the "threat of displacement [of workers' jobs] by the banned product or services." Thus, if the threatened impact on jobs is slight as compared with the substantial impact on the producing industry, the clause will be considered as "tactically calculated to satisfy union objectives else- where." Conversely, if the "foreseeable consequences of the [clause upon the industry] while disruptive [is] slight," but the threatened impact upon jobs is substan- tial, the clause will be considered "primary"`absent other indicia demonstrating an ulterior, unlawful secondary object. The Chamber interprets the term "surrounding circum- stances" to cover an exceedingly broad spectrum which would not only cover the situation in the local Butte area, but also would embrace the construction industry in the United States as a whole. Evidence both from experts and others was received with regard to the Butte area and appears in the record in some detail. The undersigned, however, refused to receive detailed expert testimonial and documentary evidence relating to the national construction industry in the belief that studies relating to prefabricated houses and restrictive union practices generally, were not sufficiently closely related to the particular issues in this proceeding, and were more properly addressed to a legislative than to a judicial tribunal.10 Before considering the contentions of the Chamber regard- ing the validity of its objective test we must first examine the assertions of Respondent Carpenters regarding its ostensible to On April 25, 1974, the Chamber filed with me a motion for leave to file renewed request to Administrative Law Judge to reconsider prior rulings rejecting Chamber's Exhs 10(b) and 19 While such late request may prop- erly be viewed as untimely, it has been fully considered. I am of the opinion that it raises nothing not heretofore fully considered that would serve to alter any of the findings herein or rulings heretofore made. Accordingly, although the request is granted to the extent of having given further recon- sideration to the prior rulings, it is hereby denied insofar as receiving in evidence Exhs 10(b) and 19 is concerned. I CARPENTERS, LOCAL 112 919 work preservation aims at the time it first voiced them and the posture of the case when the current charges arose. The interest of Respondent Carpenters in possible prob- lems arising from the entry of modular houses into the Butte area goes back to 1969 and the Bender case. The concern expressed by all union representatives in Bender, and in par- ticular by Cadigan, clearly related to a fear that the arrival of fully built houses in the Butte area would diminish the amount of traditional craft work available to the Butte unions. Cadigan stated that in resisting the arrival of prebuilt houses, "we are protecting the work of the people we are representing." Interstate, the manufacturer involved in Bender, was nonunion, and while Cadigan and other union representatives made statements indicating an awareness of this, the nonunion status of Interstate's employees does not stand out as the real problem which prompted the pressures. The Board's findings as a whole make it clear that the thrust of the union objectives in Bender centered not on that fact, but on the fear of loss of work by local union members. As we have seen, the Board found the union pressures unlawful because they had an object of forcing or requiring the Butte contractors to cease doing business with Bender or requiring Bender to cease doing business with Interstate. Pressures brought against the contractors were deemed unlawful fol- lowing the same theory upon which I have found similar pressures-against the contractors to be unlawful in the instant case. I do not view the case as a holding, however, that in 1969, the Carpenters necessarily was engaged in pursuit of an object other than work preservation. It was noted by the Board in Bender that at that time none of the unions involved had a work preservation clause in its collective-bargaining contract. It is questionable that exist- ence of such a clause would have affected the result, since the Board speaks of Bender as being "powerless to meet" the demands, and of the unions' using "proscribed means" to keep out the Interstate houses. Nevertheless, when Respond- ent Carpenters contract came up for renewal shortly after the Board's decision in Bender, Respondent Carpenters deemed it desirable, and probably necessary, if it were to meet Na- tional Woodwork requirements, to negotiate a contract con- taining a work preservation clause. The Carpenters 3-month strike for article XXII was the subject matter of Silver Bow. The Carpenters initial work preservation proposal in the negotiations was more extreme than that finally embodied in article XXII. The Butte contractors had objected that the initial proposal would have the effect of preventing any modular houses whatsoever from entering the Butte area. The Board found Respondent Carpenters "consistently mam- tained that it was not interested in boycotting any product, including modular homes, whether union made or otherwise, but was only seeking to preserve the work historically and traditionally done by its member carpenters, employees of the contractor members ...." Objections were also made that initial proposals would even keep out "precut" items which had I heretofore been accepted. The Board found Respondent Carpenters had disclaimed such an intent, and expressed its aim as only "to prevent further erosion of their members' unit work. by the subcontracting of additional tasks currently and traditionally performed by the carpenters." Subsequently during the course of negotiations, Respondent Carpenters rejected a counterproposal of the Butte contractors limiting the application of the proposed work preservation clause to situations where "the exclusive right to control the type of structure erected at the site of construction rests in a person, f i r m or corporation not a party to this agreement a g r e e m e n t . It was following this that article XXII in its present form was accepted. The Board made a further finding to the effect that representatives of four modular house manufacturers had signified that it would be possible for manufacturers to supply unfinished houses with the article XXII work to 'be done at the jobsite. With one exception however, all the manufactur- ers signified they were disinterested in doing so. As we have seen, the Board found article XXII to be lawful within the meaning of National Woodwork stating among other things that the "fact that Respondent was willing to modify its original proposal to liberalize it in several respects, so long as its objective of work preservation was retained, demonstrated Respondent's good faith in seeking only work preservation as distinguished from tactical objectives elsewhere, including product boycotts." Admittedly, however, the Board was not confronted with a right to control situation since at the time no effort had been made to enforce the provisions of article XXII. The General Counsel and the charging parties assert in this proceeding that Silver Bow does not preclude further consid- eration regarding the validity of article XXII. I would agree that the decision does not make the matter res judicata or create a collateral estoppel. The Silver Bow decision can scarcely be ignored altogether, however. The Board had before it the full text of article XXII, the background against which it arose, and the negotiations which led to its accept- ance. It is a fair assumption that the good-faith aims of Re- spondent Carpenters as they existed at the time and the true object it pursued were fully litigated. The timing of the case, of course, prevented any consideration as to what effects, if any, later enforcement efforts would have, or any considera- tion of events which occurred subsequent to the litigation. I am satisfied, however, that it is a fair assumption that up to the time of the Silver Bow hearing, Respondent's true object was pursuit of a work preservation aim, and that theretofore it had engaged in no conduct which can be construed to support a conclusion that in seeking and initially obtaining article XXII, it was pursuing a proscribed object. There remains the question of whether the picture changed when Respondent Carpenters commenced enforcement of ar- ticle XXII in a manner which heretofore f have found unlaw- ful. Also whether other subsequent events or the application of an objective test demands a finding that maintaining and enforcing article XXII constitute anew "entering into" that is unlawful. The Chamber views article XXII as having the foreseeable consequence of making it all but impossible to market Sum- mit Valley and Boise Cascade houses in the Butte area. With- out a means of constructing foundations and doing needed stitching, modular houses cannot be sold there. If Butte con- tractors are forbidden to do this work, the Butte area must be abandoned as a market unless the manufacturers are pre- pared to bring in unfinished houses conforming to article XXII. They regard this as impractical and uneconomical. While this "cease doing business" effect is viewed as having a "substantial adverse impact on the producing industry," the Chamber recognizes that such might still be deemed an mci- 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dental effect of a true work preservation object. Thus the central thrust of the Chamber's claim is that an objective evaluation-of other circumstances indicates that a "relative assessment" of this "substantial adverse impact" on the in- dustry against the "threatened displacement [of workers' jobs]" by the advent of modular houses shows the likelihood of the displacement to be so slight that the true object is properly considered as "tactically calculated to satisfy union objectives elsewhere." The Chamber notes the ostensible purpose of article XXII is to preserve employment opportunities for carpenters. The Union pressing for it apparently views modular houses com- ing into the area as likely to cause a loss of such opportunities. This conclusion rests on the assumption that the onsite work on a fully finished modular house requires fewer man hours by carpenters than the same house if stickbuilt would require. Thus, an influx of modular houses into the Butte area is viewed as reducing the overall work left for carpenters, and article XXII is addressed to obviating such a result. The Chamber challenges this line of reasoning as having no more than a superficial appeal, and claims that it actually rests on a false premise. To support this, the Chamber asserts that an objective economic analysis of the probable effects of the entry of modular houses does not show that in the long run carpenters' jobs will be reduced at all, but on the contrary, that such economic analysis establishes that the long-range result will be increased job opportunities not only for carpen- ters but also for workers in the Butte area generally. It is argued that a union pressing for article XXII and responsible for the foreseeable consequences of its conduct, must be charged with responsibility of properly evaluating the eco- nomic effects of its conduct, and that, where such analysis shows jobs will not in fact be preserved, it is proper to infer that the union has an object "elsewhere." Extensive testimonial and documentary evidence was re- ceived relating to the "relative assessment" issue and the "economic personality" of the industry. In substantial mea- sure, this has been outlined above. In addition to evidence relating to the production of modular houses as contrasted with stickbuilt houses, the area labor relations history, and other matters, there is considerable testimony from experts and others relating to the housing needs in Butte, together with economic analyses of past employment in the area, and projections with regard to future employment. The Chamber pressed for the introduction of even more elaborate economic data which related to -a variety of economic factors dealing with the construction industry nationally. Proffered expert testimony, which appeared to have a national orientation as contrasted with a more direct relationship to the situation in the Butte area, was rejected." ii Horace J DePodwm and Glenn Meyers, two highly qualified econo- mists, had prepared studies of broad scope regarding the functioning of the construction industry in the United States as a whole. The principal study was entitled "The Economic Personality of the Construction Industry and the Need for Technological Change." This was an elaborately documented and scholarly treatise dealing with such items as the severe national housing shortage attributable to meet construction needs, and the fact that many of these problems came about because the construction industry was an an- tiquated one resisting innovations and permitting restrictive work practices. The study suggests industrialized housing to be a factor of great promise in cost reduction, since it brings about a far more efficient utilization of the work force The study goes on to supply data purporting to signify that such The factors in the record upon which the Chamber relies to support its so-called objective test include the following: (1) Modular houses do not serve as a substitute for stickbuilt houses. There is an apparent demand for houses in the Butte area in the $18,000 to $25,000 price range, and it is impossible to market stickbuilt houses for less than $25,000. Therefore- modular houses will not be competing with stickbuilt houses but will fulfill a market need not now being met. (2) Some 100 modular houses came into the Butte area in the year immedi- ately preceding the hearing. This represented some 30 percent of the houses built in the area. During the same period there was no slowing of unemployment among carpenters but, on the contrary, it appears there was a 20-percent increase of membership in the Carpenters. (3) The manufacture of modular houses brings a new industry to Butte, an area whose history shows relatively scant growth. The jobs in the new industry give added income to residents which should have a beneficial effect in creating jobs for construction workers and others. Adherence to restrictive practices would on the contrary eliminate such an industry and contract the job market. (4) General economic theory applicable to Butte and elsewhere shows resistance to technological change to be un- feasible and generally counterproductive in the long run with respect to employment expansion even among the group pressing for it. And finally, (5) the work preservation concept itself rests on faulty economic predicates and whether applied in the Butte area or elsewhere it will not increase productivity or employment opportunities. While the Chamber regards these objective considerations alone as sufficient to support a finding of a proscribed object, it joins with the General Counsel in asserting that Carpenters enforcement efforts and other conduct also evidence pursuit of such object. The enforcement incidents have been described above, and I have found that directed as they were against contractors powerless to comply, or against- others not in privity of con- tract, the means of enforcement sufficed to show a proscribed industrialization promises an extremely favorable effect upon employment in the building trades, noting that many unions have accepted this as a fact and are working toward it DePodwin and Meyers find that, so long as virtually all construction must be performed at the jobsite, growth of low cost housing will be restricted, and that this will have an adverse effect upon the very workers who undertake to impose such restrictions. This study and the supportive testimony of the economists who had prepared it was rejected primarily because it was not believed necessary to evaluate economic con- siderations on so broad a spectrum in order to resolve the issues with which we are immediately concerned. It was further believed that to permit the introduction of such matters would needlessly expand the record in a man- ner not required to reach a decision on the issues. In addition, it was felt that in substantial measure the economic data covered by this study was of a nature more appropriately directed to a legislative than to a judicial tribunal For similar reasons, an additional paper entitled "A Theoretical Analysis of the Work Preservation Concept" prepared by the same economists was also rejected. An interim appeal was taken from my rejection of this proffered economic material The ruling was initially sustained, but, after the conclu- sion of the hearing, a motion for reconsideration of the ruling on the appeal was filed with the Board This motion was denied. The Chamber in its brief now urges that I reconsider the matter, and reverse my earlier position After giving careful consideration to the record as a whole, and to the arguments of the Chamber, I am still satisfied that the economic data in the record relating to the Butte area alone which, it may be noted does not appear in conflict with the broader economic conclusions covered by the studies, suffices to meet the mandate of National Woodwork regarding "surrounding circumstances" and the "economic personality" of the indus- try Accordingly, I reaffirm my rulings made at the hearing rejecting all evidence purporting to have a national scope CARPENTERS, LOCAL 112 secondary object. We have seen, however, by the holding in Koch that such a result can be reached without invalidating a work preservation clause. In view of this I do not regard the unlawful enforcement means used here as per se tainting an otherwise 'lawful work preservation clause. This result would appear to follow with regard to enforcement pressures di- rected at either contracting or noncontracting employers since both were undertaken in pursuit of the same goal: There remains the question, however, of whether, since the hearing in Silver Bow, Cadigan, or any other Carpenters rep- resentative, conducted himself in a manner which might sug- gest an object other than work preservation. Cadigan was specific and positive in his assertions that Carpenters at no time pursued any object but preservation of traditional jobsite work. He expressly denied interest inrepre- sendting plant employees of either Summit Valley or Boise Cascade. Cadigan was a forthright witness, and I credit both of these assertions. I see nothing in his testimony suggesting real concern with the organizational status of either manufac- turer. Both plants were organized, with the Boise Cascade plant employees represented by another local of Carpenters International. Cadigan's references to modular houses as "scab products"' or as "unfair" came in a context of at- tempted enforcement of article XXII, and his approach as a whole appears keyed to getting the article XXII work for the Butte carpenters with little concern for incidental effects this might produce. His references to these terms sound more in the nature of off-the-cuff remarks made in the common trade union vernacular than as expressions of a dual object. Consid- ering the record as a whole I view Cadigan's general approach to article XXII as evidencing a single-minded effort to further a sincerely held conviction that the advent of modular houses threatened employment opportunities of his carpenters.12 I find no convincing evidence that in pursuing this course Cadigan was not acting in good faith, or that he was using such approach as a pretext to cover any other object. 3. Conclusionary findings as to violations of Section 8(e) and 8(b)(4)(A) The foregoing suggests that resolution of the 8(e) and 8(b)(4)(A) issues turns on an understanding of the true man- date of the Court when it directed an inquiry into the "sur- rounding circumstances." The Court is not specific on the question of "surrounding circumstances." The suggested considerations of "economic personality" or "threat of dis- placement" help but little, because the Court gives no real hint as to what these terms encompass. The Chamber seizes on these two terms as the key to its "objective test." It views the term "economic personality" as embracing a broad con- cept of economic theory which must be considered in evaluat- ing construction industry problems. Consideration thereof leads it to a conclusion that resistance to technological ad- vancement in the form of a work preservation clause like 12 It may be rioted that in the fall of 1972 Cadigan had good reason to believe both art. XXII and its enforcement might be lawful. The initial Silver Bow decision had issued. The Board had indicated that enforcement of such a clause against a contractor without the right to control work assignment was unlawful, but several courts of appeal had emphatically disagreed Moreover, Koch, with its full explication of the Board 's view, had not yet issued. 921 article XXII would not only hinder economic progress, but also would not preserve the jobs at which it was aimed. It asserts that the record sustains a conclusion that this very result will be forthcoming in the Butte area should article XXII be found lawful. The evidence relied on to support this is the expert testimony of economists relating to such matters as general economic theory, Butte housing needs, Butte popu- lation growth, and carpenters' job experience in Butte during the preceding year. Of necessity expert testimony of this nature is in some measure speculative, and involves educated guesses as to fu- ture developments. I am satisfied that the Chamber's experts are well qualified, and that their investigations, evaluations, and predictions relating to the effect of article XXII and its enforcement are likely to be correct. Assuming this to be true, however, I am not convinced that Carpenters is properly charged with 'knowledge of this as a "foreseeable conse- quence" of its pursuit of an otherwise lawful work preserva- tion object. This objective test as a controlling factor can only be sus- tained if we are justified in charging any union seeking a work preservation clause with knowledge of its economic conse- quences. The dissenting justices in National Woodwork saw Congress as viewing any product boycott as producing un- desirable economic consequences and thus all "cease doing business" situations to constitute proscribed objects. The majority, however, was considering a product boycott prob- lem. Efforts to outlaw product boycotts generally center on the theory that they are economically unsound, and in the long run will have an adverse economic effect even on the party who has been pressing for one. It is difficult to envisage any product boycott situation which could successfully sus- tain itself against this long-range argument of adverse eco- nomic consequences. The Chamber's test would charge a union with responsibility for knowing that adverse economic consequences would flow from its pursuit of a work preserva- tion clause. The test would then say that, possessing such knowledge, continued pursuit of the clause could not be viewed as having the sole object of work preservation, since a union could not reasonably conclude that it would likely preserve jobs. Therefore, the union's object must be deemed as aimed elsewhere, and viewed as secondary and unlawful. This is an approach that would have the practical effect of making it all but impossible to pursue a work preservation object even of the limited nature permitted by the majority in National Woodwork. In substantial measure use of such an objective test would achieve the end found by the dissenting justices, but rejected by the majority. Moreover, regarding economic consequences the majority in National Woodwork spoke as follows: The Woodwork Manufacturers Associations, and amici who support its position, advance several reasons, grounded in economical and technological factors, why "will not handle" clauses should be invalid in all circum- stances. Those arguments are addressed to the wrong branch of government. It may be "that the time has come for reevaluation of the basic content of collective bargaining as contemplated by the federal legislation. But that is for Congress. Congress has demonstrated its capacity to adjust the nation's labor legislation to what, 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in its legislative judgment, constitutes the statutory pat- tern appropriate to the developing state of labor relations in the country...." Accordingly, contrary to the claim of the Chamber I am satisfied that the Court's mandate is far more limited. The majority recognized that the inevitable "cease doing busi- ness" effect of its holding could lead to abuse. Therefore it directed'careful scrutiny to insure that the lawful object was pursued in good faith. The nature of the industry, the setting in which the dispute arose, the bargaining history, and vari- ous representations of union representatives were all "sur- rounding circumstances" that would throw light on the unions true object. Subterfuge or pretext might well be dis- cerned from an examination of such factors. I am satisfied that the Court's mandate is thus limited, however, and that in any event it did not encompass an evaluation of the eco- nomic consequences in the manner urged by the Chamber. In the instant case for reasons more fully set forth above I view neither the Carpenters initial pursuit of article XXII nor its subsequent "entering into" or enforcement efforts as sufficient to establish that the agreement itself has a pro- scribed object. Accordingly I find that it has not been estab- lished that "entering into" or maintaining article XXII is conduct violative of Section 8(e) and 8(b)(4)(A) of the Act, and I shall recommend that the allegations in this regard be dismissed. It must be noted, however, that the foregoing holding is limited in scope. Nothing therein is to be construed as making article XXII enforceable for all purposes. It is enforceable only in situations which parallel that in National Woodwork where the contracting employer has full control of the work assignment. In all other situations where the contracting em- ployer is powerless to award the work, or the pressure is directed at a noncontracting employer or his employees, Car- penters may not press for article XXII work within the ra- tionale of the Koch case as set forth in the preceding section. E. The Responsibility of Respondent Council for the Alleged Unlawful Conduct of Respondent Carpenters As noted above, Respondent Council had not been charged with a violation of the Act prior to the issuance of the amended consolidated complaint in May 1973. The hearing opened on June 5, and after 3 days recessed until July 24. On July 9, the Chamber amended its charge, and on July 20, the General Counsel moved to amend the consolidated complaint by alleging, in substance, that "on or about October 5, 1972" Respondent Council "acting at the behest of and as agent" of Respondent Carpenters, "threatened employer members of Butte Contractors Association . . . with a work stoppage if they continued to perform work on modular homes" manu- factured by Summit Valley and Boise Cascade until each of these manufacturers- signed contracts containing article XXII. This conduct was claimed violative of Section 8(b)(4)(ii)(A) and (B) and 8(e) because it was claimed to have the same proscribed objects as the pressures brought by Re- spondent Carpenters. The motion to amend was argued-on the record when the hearing reopened on July 24. Following argument, I denied the motion to amend, primarily because it appeared-to serve no useful purpose since any remedy for the unlawful conduct of Respondent Carpenters would also enjoin persons acting as agents for the Carpenters or at its behest. Moreover, it appeared that joining the Council and litigating its responsi- bility at this point in the proceeding would have the effect of unduly prolonging the hearing. An interim appeal from denial of the motion to amend was entertained by the Board. On July 27, my ruling was reversed, and I was directed to grant the motion to amend. Thereafter, I ruled that Respond- ent Council, as a result of the amendment, became a full party to the proceeding entitled to time to answer, time to examine the record already made , and to recall and reexamine wit- nesses that had already appeared if their testimony related to the allegations against the Council . To effectuate such rights, the hearing was recessed from July 27 to September 12. Thereafter, Respondent Council filed an answer, appeared by its counsel when the hearing reconvened on September 12, and participated fully in all aspects of the proceeding until the hearing closed. When the hearing reconvened, Respondent Council, among other things, voiced objections to proceeding based on lack of due process. After extended argument on the record, these objections were ruled to be without merit. Due process objections were reiterated in Respondent, Council's brief, filed after the close of the hearing. No purpose will be served by a detailed outline of such objections, or by discussion of each of the issues raised. Suffice it to say that a fair appraisal of the record including the time allowed, the opportunity af- forded for examination of the previously made record, the granting of the right to recall witnesses, and the extent of actual participation in the remainder of the hearing, indicate that counsel was afforded a full opportunity to make its de- fense as to the allegations made against it. Under the circum- stances, I find Respondent Council's objections, based on due process grounds, to be without merit. The unlawful conduct charged against the Council relates only to a letter sent by the Council to certain contractors on October 5, 1972. Before considering the text of this letter, and the circumstances leading up to and following its sending, we must consider the nature of the Council itself and its relation- ship to Respondent Carpenters and the various construction industry unions that comprise its membership. Respondent Council is an organization whose membership is comprised of the Butte area unions directly engaged in the building industry. It is affiliated with the Building and Con- struction Trades Department of the American Federation of Labor. The Council exists to protect the interests of the differ- ent trades represented, to serve as a forum to which the members can bring their individual problems, and to give its members aid and support in their organization and represen- tation of employees where such is needed. Council member- ship in the Butte area includes some 15 unions. The Council is supported by a per capita tax paid by each affiliated union. The Council holds regular monthly meetings to which these unions send delegates. The delegates report their own in- dividual problems at the meetings, participate in discussions thereof, and in turn report back to their own unions what has been discussed at Council meetings and what, if any, action the Council membership had voted to undertake. In addition to functioning as a forum for discussion, Respondent Council will on occasion act on its own in pursuit of the interests of CARPENTERS, LOCAL 112 923 its members. The Bender case provides an illustration of the Council assisting members in a move to limit the entry of modular houses into the Butte area. As we have seen, the Council was joined as a party respondent in Bender, and the Board's cease and desist order ran against it as well as the member unions also named. Ever since the Bender case, Council minutes reflect con- tinuing discussions at Council meetings concerning various problems relating to the entry of modular houses into the Butte area. Frequently issues of this nature were brought up by delegates from the Carpenters. In the Council minutes of September 19, 1972, we find Cadigan reporting to the Council on problems he was having with Summit Valley at the time, and the minutes noting that the Carpenters "are fighting the methods they used here and ask support of" the Council. Thereafter, a motion was carried that the Council executive board meet on the matter as soon as possible. Minutes of executive board meetings of the Council are not kept, and it was not shown when, if at all, the executive board ever met or considered this problem of supporting the Carpenters in their dispute with Summit Valley. On October 5, 1972, the Council sent out a letter written on its own letterhead and signed by Mitchell Mihailovich, president. This letter reads in full as follows: NOTICE TO ALL CONTRACTORS: Please be informed the Southwest Building Trades Council has taken action that its membership will not work on construction projects with personnel whose In- ternational Union is not affiliated both locally and inter- nationally with Building Trades Council, AFL-CIO. This action pertains to onsite construction and will be in effect commencing October 16, 1972. On the attached sheet are the unions who are affiliated both nationally and locally with the Building and Con- struction Trades Department, AFL-CIO. The attached sheet lists the names of 15 unions represented as "`nationally or locally" affiliated. The Teamsters is not such an affiliate, and its name is not on this list. The General Counsel and the Charging Parties contend this letter to show that Respondent Carpenters had success- fully enlisted the support of Respondent Council as its agent or ally in its fight to enforce article XXII. It was noted that the letter was sent during the period when Respondent Car- penters had commenced steps to enforce article XXII and after it had solicited Council support. As we have seen, Team- sters has a provision in its contract permitting Summit Valley employees to perform onsite work where necessary "to pre- serve and protect the integrity of the products manufac- tured." If the contractors were being prevented from per- forming the onsite foundation and stitching work, it was reasonable to assume this provision would be invoked, and that Summit Valley Teamsters employees would be brought to the jobsite for such purposes. The letter and the omission of Teamsters from the "attached list" is thus regarded as a threat to contractors that on any jobsite where the "non- affiliated" Teamsters employees might be called in to do the foundation and the stitching work, none of the other Council- affiliated crafts would work with them and the marketing of the Summit Valley houses would be hindered. Respondent Council denies that this letter had anything whatsoever to do with the Carpenters or any other matter relating to the Butte modular housing problem. According to Mihailovich, three of the local building trades unions, Asbes- tos Workers, Bricklayers, and Lathers, were at the time delinquent in their required per capita payments to Respond- ent Council. Mihailovich states that the letter was sent in part for the purpose of putting pressure on these delinquent unions to pay up their per capita tax and reinstate their local and national affiliation." Mihailovich testified that the letter had an additional purpose which did relate to the Teamsters. The Teamsters, although not an affiliated Council member, was recognized as playing a role in the building trades indus- try. Mihailovich states that the Teamsters have the recog- nized jurisdiction to make all deliveries to jobsites. According to Mihailovich, however, on some of the larger jobsites, there will be truck driving limited to the jobsite alone which falls within the traditional jurisdiction of a craft working full time at the site. At or about this time on some of the larger jobsites it had been reported that members of the Teamsters had been given full-time jobsite driving. This was not deemed appropri- ate by the Council and Mihailovich asserts this was in part what the letter was protesting. It stands uncontradicted that the October 5 letter was sent only to four general contractors, each one of which was at work on a large construction pro- ject, not concerned with any aspect of residential construc- tion. Mihailovich testified that he believed these four to be the only contractors at whose jobsite members of the delinquent unions were working, or the only ones with whom three were Teamsters problems concerning onsite work. In any event, the October 5 letter triggered a series of events which for the most part add confusion to the question of its real purpose. It is not shown that the letter directly brought about any work stoppages at any Summit Valley or Boise Cascade modular house sites, or indeed that any of the contractors who might have engaged in such work even saw it. However, at least one of the larger contractors who re- ceived the letter reacted immediately and strongly. Arthur G. McKee and Co. was a contractor working on a large construction project for Anaconda Company. Noting that the Teamsters was not on the list of affiliates attached to the October 5 letter, he viewed it as a threat that Council affiliates would order their members to leave his job if he continued to use members of the Teamsters. McKee promptly sent a telegram to the Building and Construction Trades Department in Washington, D.C., with whom Re- spondent Council is affiliated. In this telegram, McKee signi- fied that he did not know the reason behind the October 5 letter, stated that he wished to live up to his own obligations to all building trades unions, and urged that the Council's parent organization take whatever steps it could to resolve any existing problem in a manner which would avoid a work 13 In April 1972, the Council had sent letters to each of these three unions noting their delinquency and stating that, if they did not pay up, "the contractors . . . will be notified that the other crafts will no longer work with them " However, the names of all three of these unions appear on the October 5 "attached list," which would indicate that at that time each was regarded as affiliated. It was not shown that copies of the October 5 letter to the contractors were sent directly to these delinquent unions. 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stoppage. No mention was made by McKee in this telegram of any problem involving modular housing. McKee's tele- gram seems to have.had some initial effect since we find the following in the minutes of the regular meeting of Respond- ent Council on October 17, 1972: The letter concerning the Teamsters that was sent to the contractors was read and the telegram that McKee sent to the National Building Trades disputing this letter was also read. President Mihailovich reported we have been directed by the International to hold off on any action until they have a chance to check this out. While the foregoing minute entry would seem to confirm that the October 5 letter related to the Teamsters , it is not incon- sistent with the testimony of Mihailovich, nor does it neces- sarily signify that the Teamsters problem involved modular housing rather than full-time onsite driving. As described above, the Summit Valley picketing was commenced on Oc- tober 12 and following the initial charges filed in this proceed- ing, such picketing and other coercive job action was enjoined by- the District Court on November 8, 1972. Although the,McKee telegram had resulted in the Coun- cil's suspending any contemplated action, no meeting to re- solve the issues, whatever they might be, relating to the Octo- ber 5 letter took place until November 16. This meeting was held in Butte and was attended by a representative of the Building Trades Department, by International and local rep- resentatives of the Teamsters, by, local representatives of the Council, and by Cadigan of Respondent Carpenters . It is not clear to what, if any, extent the issues of dues delinquency or the Teamsters driving full time on jobsites were discussed among those present. The testimony of Cadigan, Mihailo- vich, and Roberts, a Teamsters representative, suggests the principal subject of discussion to have been whether Summit Valley employees would be permitted to follow houses to job- sites. Teamsters representatives stated affirmatively that their union had no interest in doing onsite work on any Summit Valley modular house so long as the building trades unions would undertake to do all that was needed to make the house habitable. Teamsters signified, however, that, should Re- spondent Carpenters or any other building trades unions make it impossible for contractors to do this needed work, the Summit Valley employees would follow the houses to the jobsites and do what was needed to make them habitable. The injunction was in effect at the time and Carpenters was no longer able to pursue efforts to enforce article XXII against contracting or noncontracting employers . Cadigan, however, did signify that Carpenters had no interest in representing employees at the Summit Valley plant. Although an attempt was made to work out a written understanding between the Teamsters and the Council, -efforts in this direction proved unsuccessful, and the meeting ended on a somewhat inconclusive note. The foregoing scarcely presents a pattern of clarity. Con- sideration of the entire picture, however , does not convince me that it has been fully established that the conduct of the Council was sufficiently related to the modular housing prob- lem that it may be held responsible either as an agent or ally of Respondent Carpenters in pursuit of the latter's unlawful objectives. A close relationship naturally exists between a building trades -council and its affiliates. Ever since Bender modular housing had been viewed by the Butte building trades unions, and especially by the Carpenters, as a problem . Understanda- bly there had been continued reportingand discussions of matters relating to it at Council meetings . However, by Sep- tember, the legality of article XXII appeared to be established in some measure, and the Carpenters had undertaken- some enforcement effort against the contractors which appeared to have been successful. The support mentioned in the Council minutes of September 19 as having been sought by Carpenters is not defined, and the record does not disclose , that the executive board of the Council ever discussed or decided on a course of action before October 5. While it is reasonable to assume that Respondent Carpenters might welcome support efforts from the other crafts through the Council , especially if the Teamsters were to commence doing some of the jobsite work on the Summit Valley houses, the real question is whether it is appropriate on the record before us to view the October 5 letter as an instrument of such support. The text of the letter leaves its purpose in some doubt. The General Counsel views it as aimed at adding the Council's "muscle" to the article XXII enforcement efforts of Carpen- ters. However, if this be in fact its real purpose, why was it not specifically spelled out in the letter ? Ariticle XXII was viewed by the Carpenters and the Council as lawful at the time. There is no other apparent reason why either should try to disguise any joint or several efforts to have its terms ob- served. If the letter were to have an impact commensurate with the purpose which the General Counsel and Charging Parties attribute to it, why does it make no mention of article XXII and the Summit Valley-Teamster Contract as the focus of and the reason for the threatened action? The record pro- vides no good answers to these questions, and the explana- tions offered by the Council as to the purposes of the October 5 letter only add to the confusion . Possibly those drafting the letter were inept inasmuch as it is equally true that the as- serted purposes relating to per capita delinquencies or Team- sters onsite driving were not specifically spelled out either. The confusion even becomes compounded in some degree when we note that at the November 16 meeting, which admit- tedly had resulted from the October 5 letter, the discussion centered on the Teamsters-Summit Valley aspect of the prob- lem, and dwelt but little on the per capita and onsite driving issues. This might leave the whole issue of purpose balanced in doubt were it not for the uncontradicted fact that the letter was sent to only four contractors, no one of which was in- volved in residential housing, or would be likely at any time to become involved in a modular housing problem. Carpen- ters was pressing to, make it impossible' for Summit Valley houses to be marketed in the Butte area unless sent to jobsites in unfinished form. Carpenters could, and did bring its own pressures against the -Butte area contractors called upon to do needed carpentry work on Summit Valley's finished modular houses. The only contractors, however, who could possibly be affected would be those who undertook the sort of jobs re- quired to make the Summit Valley houses habitable. Council support could expand these pressures against the same con- tractors. For the expanded pressure to be supportive, how- ever, it had to be made known to those contractors who might CARPENTERS, LOCAL 112 engage in residential work of this nature. The October 5 letter was sent to none of them, but only to four larger contractors who apparently had no concern with residential housing whatsoever. This lends credence to the Council's assertion that despite the wording of the letter and despite any subse- quent incongruities in the explanations , the letter was neither aimed at, nor intended to.relate to the modular housing dis- pute and Carpenters efforts to enforce article XXII, and I so find. Accordingly, I find that it has not been established by a preponderance of evidence that Respondent Council, acting either as agent or at the behest of Respondent Carpenters, sent the October 5 letter for any purpose relating to the modular housing dispute. I further find that, by such letter, Respondent Council did not threaten or coerce any contrac- tot for any proscribed purpose within the meaning of Section 8(b)(4)(ii)(A) and (B) or Section 8(e). Therefore I shall recommend that the allegations against Respondent Council be dismissed.14 F The Conduct Alleged as Violative of Section 8(b)(4)(D) The charges in Case 19-CD-212, the circumstances sur- rounding the picketing of Summit Valley, the injunction, and the 10(k) hearing and its result, have been referred to above. The economic pressures have been found violative of Section 8(b)(4)(B). But there remains the question of whether such economic pressures shall also be regarded as violative of Sec- tion 8(b)(4)(D). ]Following the 10(k) hearing, the Board in its Decision and Determination of Dispute issued on April 6, 1973,15 ruled that there was "reasonable cause to believe that a violation of Section 8(b)(4)(D) had occurred, and that the dispute is prop- erly before the Board for determination." The Board went on to hold that Teamsters were entitled to "the work of manu- facturing or building of prebuilt or modular homes and other structures, including work necessary to make the structures habitable. .. " Thereafter, the General Counsel determined that Respondent Carpenters had not given an unequivocal indication of its intent to be bound by the Board's determma- tion. Accordingly, the complaint before us was issued. In the 10(k) determination the Board rejected Respondent Carpenters claim that its pressures were exerted solely against Jovick, related solely to enforcement of article XXII, and that no pressures were directed against Summit Valley to bang about a change in work assignment from Teamsters to Carpenters. With regard to the circumstances supporting its conclusion that there was reasonable cause to believe that a violation of Section 8(b)(4)(D) existed, the Board stated the folllowing: Viewing the total circumstances of this case, we find that Carpenters' conduct went beyond merely attempting to 14 On April 25 the Chamber moved for leave to file a reply brief on the issues relating to the Council 's responsibility. The Rules and Regulations make no provision for reply briefs, and I would regard such request as untimely in any event Nevertheless, I have read and considered the con- tents of the brief submitted and find nothing therein that would alter any findings or conclusions that I have made herein regarding the responsibility of the Council 13 Carpenters Local 112 (Summit Valley Industries, Inc.), 202 NLRB 974 (1973). 925 enforce Article XXII against Jovick. By pulling Jovick's employees off the jobsite and threatening to picket [Summit Valley's] workmen if they followed their work to the jobsite and completed the work thereon, Carpen- ters, for all intents and purposes was preventing [Summit Valley] from delivering its product to its cus- tomers in salable condition. Only if [Summit Valley] drastically curtailed its inplant operations and delivered the components of each modular house to the jobsite so that Carpenters would then do the work guaranteed by Article XXII, Section 3(a), in other words, reassign its plant work from Teamsters to Carpenters, would Car- penters remove pressure from [Summit Valley] and its subcontractor, Jovick. Corroborative of Carpenters' unlawful objective is the evidence of a more direct pressure placed on [Summit Valley] by Carpenters. The record clearly shows that Carpenters picketed [Summit Valley's] plant for the ex- press purpose of effecting a reassignment of the prefabri- cation of the modular houses from workmen represented by Teamsters to workmen represented by Carpenters, either on the jobsite or in the plant. Cadigan in fact admitted that the picketing would have ceased had the inplant work been given to members of Carpenters. Fur- thermore, Cadigan testified that additional picketing and handbilling would take place if Teamsters insisted on following the work to the jobsite. Respondent's letter to the Regional Director, which is quoted above, clearly does not signify an unequivocal inten- tion upon the part of Carpenters to abandon the position taken by the Carpenters in the 10(k) proceeding and subse- quently rejected by the Board. The Carpenters neither urged, nor does the record disclose, any newly discovered evidence which would indicate that there has been any change in cir- cumstances or change of its position. Thus it appears that all matters relating to the work assignment question were pre- viously considered and have been decided by the Board. In- deed, nowhere in its brief does Carpenters urge or argue to the contrary. Although Carpenters has asserted in this case that it has no interest in representing employees in the Sum- mit Valley plant, it made a similar representation in the 10(k) proceeding, and thereafter, including the hearing in the in- stant case, has failed to assert without equivocation that pick- eting of either the plant or the houses at the jobsite will be altogether abandoned. It is well settled that where no newly discovered evidence is adduced, matters considered at the 10(k) hearing are not to be rehtigated and the result thereto- fore found by the Board controls.16 Accordingly I find that Respondent by its picketing, and other unlawful pressures against Summit Valley, for reasons set forth-above and heretofore found by the Board to consti- tute reasonable cause to conclude the conduct unlawful, and its refusal to comply with the Board's Decision and Determi- nation of Dispute, has engaged in conduct violative of Section 8(b)(4)(i) and (ii)(D) of the Act. 16 International Brotherhood ofElectncal Workers, Local 3 (Mansfield Contracting Corporation), 206 NLRB 423 (1973), Bricklayers Local I [Shelby Marble and Tile Col v NL R. B., 475 F 2d 1116 (C A D C , 1973) '926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV THE REMEDY Having found that Respondent Carpenter has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i)(n)(B) and (D) 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. The Chamber urges that the nature of the violations calls for remedies that depart from those normally given. These would include a so-called broad cease-and-desist order, physi- cal expungement of article XXII, and widespread dissemina- tion of the notice by having it read to members, mailed to contractors bound by article XXII, and published in a local newspaper. In addition the Chamber urges recision of fines assessed for violations of article XXII, or refunding if the fines had been collected, and restoration of union member- ship if expulsion has occurred. The order will enjoin pressures against not only contrac- tors who have been pressured to date, but also will enjoin pressures against all contractors and other persons whose connection with the modular housing industry might subject them to the effects of such conduct. Having found article XXII lawful on its face, it, of course, cannot be expunged, but it has been made clear above that such holding is a limited one, and article XXII enforcement efforts may be undertaken solely in situations where the contracting employer has con- trol over work assignment. I see no reason for departure from the usual posting prac- tice with regard to the notice. The members will be suffi- ciently apprised of the holding thereby, and there is no reason to believe that they, or the local, will not abide by the require- ments of the order. I have found that Carpenters sought article XXII in good faith, and that at the time it undertook the enforcement efforts herein found to have had a proscribed object, Carpenters had some reason to believe such might be lawful. Carpenters has been enjoined from enforcement of article XXII by court order since November 1972. It does not appear that the injunction had unusual dissemination, and it has not been shown that Carpenters or its members have not complied therewith, or that Summit Valley or Boise Cas- cade have been confronted with difficulties in marketing their houses in the Butte area during this period. The record indicates that in some instances fines were imposed on union members for violations of article XXII. It is not altogether clear if any such fines were collected after the injunction. In any event I shall recommend that such fines be rescinded, and the amounts be refunded if they have been collected. In addition if union membership has been denied for the same reason, I shall direct that it be restored. Although I have found insufficient evidence to hold Re- spondent Council responsible, the record fully establishes its function and the close relationship it has to Respondent Car- penters and the other building trades unions. The cease-and- desist order against Respondent Carpenters clearly prohibits it to use any persons as its agents or allies in carrying out any of the proscribed conduct, and to the extent it should under- take to do so, the order is to be construed as enforceable against such agents or allies. Upon the basis of the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent Carpenters and Respondent Council are, and have been at all times material to the issues in these proceedings, labor organizations within the meaning of Sec- tion 2(5) of the Act. 2. Silver Bow Employers Association and Butte Contrac- tors Association and their employer members, as well as any other parties who are signatory to a contract between Re- spondent and such associations, are each employers within the meaning of Section 2(2) of the Act, and are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By a variety of economic pressures relating to enforce- ment of article XXII of Respondent Carpenters collective- bargaining agreement which as found above were directed at contracting and noncontracting employers or their em- ployees, Respondent Carpenters has engaged in conduct vi- olative of Section 8(b)(4)(i) and (ii)(B) of the Act. 4. By economic pressures including picketing directed at Summit Valley, as found above, Respondent has engaged in conduct violative of Section 8(b)(4)(D) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. By entering into a contract containing article XXII with Silver Bow Employers Association and Butte Contractors Association, Respondent Carpenters did not engage in con- duct violative of Section 8(e) and Section 8(b)(4)(i) and (ii)(A) of the Act. 7. By sending the letter of October 5 to certain contractors, Respondent Council did not engage in conduct violative of Section 8(b)(4)(ii)(A) or (B) or Section 8(e) of the Act. Upon the basis of the entire record, the findings of fact, and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER" Respondent, United Brotherhood of Carpenters & Joiners of America, Local 112 , AFL-CIO, Butte, Montana, its offic- ers, agents, and representatives, shall: 1. Cease and desist from: (a) Inducing or encouraging any employee to refuse to work on, handle or transport any modular house, or threaten or coerce any person, including Butte area contractors or any other employer engaged in some aspect of constructing , trans- porting, or handling modular houses , where in either case an object of such pressures is to force or require the Butte area contractor, or any other person, to cease working on a modu- lar house at a jobsite, either altogether, or unless and until such house be brought to the jobsite in a condition which conforms to article XXII of the contract; or where an object is to force or require the manufacturers of modular houses either to cease bringing such houses into the Butte area al- 17 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. CARPENTERS, LOCAL 112 together, or to change their mode of operation so that such houses are brought to Butte area jobsites in a condition that 'con'forms to article XXII of the contract. (b) Refusing to comply with the Board's Decision and Determination of Dispute by picketing, or other economic action, directed at Summit Valley, or any other person, where an object is to force or require Summit Valley to assign car- pentry work, whether in-plant or onsite, to employees who are members of Respondent Carpenters, rather than to em- ployees who are members of Teamsters 2. Take the following affirmative action which I fmd to effectuate the policies of the Act: (a) Post in conspicuous places at Respondent's business offices, meeting halls, and all other places where notices to members are customarily posted, copies of the attached no- tice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 19, after hav- ing been duly signed by Respondent Carpenters authorized 18 In the event that the Board's Order is enforced by a Judgment of a Umted States Court of Appeals, the work in the notice reading "Posted by Ordt r 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 " 927 representatives, shall be posted by Respondent Carpenters immediately upon receipt thereof and be maintained by it for 60 consecutive days. Reasonable steps shall be taken by Re- spondent Carpenters to insure that said notices are not al- tered, defaced, or covered by any material. (b) Rescind any fines assessed, refund any fines collected, and restore membership status in any case where union mem- bers have been penalized for engaging in conduct deemed by Respondent Carpenters to have been violative of article XXII of its existing contract. (c) Sign and mail sufficient copies of the notice to the aforesaid Regional Director for forwarding to any employer involved in the construction or transportation of modular houses destined for Butte area jobsites for posting by them, if they are willing, in all locations where notices to employees are customarily posted. (d) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Re- spondent Carpenters is taking to comply herewith. IT IS FURTHER-RECOMMENDED that the allegations of the complaint alleging violations by Respondent Carpenters of Section 8(e) and 8(b)(4)(i) and (ii)(A) be dismissed, and that the allegations alleging violations by Respondent Council of Section 8(e) and 8(b)(4)(ii)(A) and (B) be dismissed.