Sheet Metal Workers Local 28

SHEET METAL WORKERS LOCAL 28 727 Sheet Metal Workers International Association, Local 28, AFL-CIO and Carrier Air Conditioning Com- pany, a Division of Carrier Corporation Sheet Metal Workers International Association, Local 28, AFL-CIO and Carrier Air Conditioning Com- pany, a Division of Carrier Corporation and Three Boro Sheet Metal and Ventilating Co., Inc., Party to the Contract. Cases 2-CC--1296 and 2-CE-66 February 5, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On July 17, 1975, Administrative Law Judge James V. Constantine issued the attached Decision in the above-entitled proceeding, finding,that the Respon- dent had engaged in and was engaging in certain un- fair labor practices and recommending that it cease and desist therefrom and take certain affirmative ac- tion. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief, the Charging Party filed limited exceptions, and the Charging Par- ty and the General Counsel filed briefs in support of the Administrative Law Judge's Decision.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Admin- istrative Law Judge made at, the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Administrative Law Judge's Decision, the exceptions and briefs, and the entire record in the case,' and hereby adopts the findings,' conclusions, and recom- mendations of the Administrative Law' Judge only to the extent consistent herewith. 'The amended complaint alleges that Respondent violated Section 8(b)(4)(i) and (ii)(B) by adopting a resolution in or about May 1973, that its members would oppose the installation of Carrier's moduline air-conditioning units unless they fabricated the ple- t The Intervenor, Sheet Metal and Air Conditioning Contractors Nation- al Association (hereinafter SMACNA) did not file a brief 2 The Respondent has requested oral argument The request is hereby denied inasmuch as the record, the exceptions, and the briefs adequately present the issues and positions of the parties 3 The Respondent has excepted to certain credibility findings made by the -Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544(1950), enfd. 188 F.2d 362 (C.A. 3, 1951) We have carefully examined the record and find no basis for reversing his findings nums for said units, and by the October 1973 refusal of one of its members employed by Three Boro to perform certain sketching work preparatory to and necessary for the installation of Carrier moduline units. The complaint further alleges that Respondent violated Section 8(b)(4)(i) and (ii)(B) by informing Carrier representatives on or about October 23 and November 26, 1973, that its members employed by Three Boro would not be permitted to make sketches for the Carrier moduline units and on those same dates and again on July 23, 1974, that Respondent was not going to permit Carrier units to be installed in New York because employees represented by it were not fabricating the plenums. Finally, the com- plaint alleges that by the above acts, the Respondent applied the no-subcontracting clauses in its contracts with SMACNA and Three Boro in violation of Sec- tion 8(e). At the hearing, the complaint was amended further to allege that in November 1974, Respondent, by bringing industry charges against General Sheet Metal, Inc., violated Section 8(b)(4)(B) and (e) of the Act. The Administrative Law Judge found the viola- tions as alleged. We disagree. We believe that a con- trary result is dictated by our decisions in Associated General Contractors 4 and Kimstock Division.5 The collective-bargaining agreement between Re- spondent and Sheet Metal and Air Conditioning Contractors National Association, New York Chap- ter, Inc., to which Three Boro Sheet Metal and Venti- lating Co., Inc., is bound by a separate agreement, contains a no-subcontracting clause which provides in pertinent part: - II MEMORANDUM CONTAINING NO SUBCONTRACTING CLAUSE For the preservation of the work opportunities of the journeyman sheet metal workers and ap- prentice sheet metal workers within the collec- tive bargaining unit, each Employer within the collective bargaining unit shall not subcontract out any item or items of work described herein- below; except that each said Employer shall have the right to subcontract for the manufac- ture, fabrication or installation of such work with any other Employer within the collective bargaining unit: 1. Radiator enclosures except when manufac- tured and sold as a unit including heating ele- ment, 2. Functional louvers. 4 Southern California Pipe Trades District Council No 16 of the United Association, et at (Associated General Contractors' of California, Inc),' 207 NLRB 698 (1973) 5 Southern California Pipe Trades District Council No. 16, Plumbers & Steamfnters Local No 582 (Kimstock Division, Tridair Industries, Inc), 207 NLRB 711 (1973) 222 NLRB No. 110 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Attenuation boxes except for mechanical de- vices contained therewith. 3a. Sound traps. 4. Dampers: All types of Dampers, including Automatic Dampers and multi-Zone Dam- pers, Manual Control Dampers and Fire Con- trol Dampers, except Patented Pressure Re- ducing Devices. OBD's and Santrols are per sketches B and C annexed hereto. 5. Skylights, Sheet Metal Sleeves, Pressure Re- ducing Boxes, Volume Control Boxes, Trof- fers (plenums), High Pressure Fittings and Gutters (excluding 1/2 Round Gutters). 6. Air handling units in excess of 30,000 C.F. M.'s. 7. All other work historically, traditionally and customarily performed by journeyman sheet metal workers and apprentice sheet metal workers within the collective bargaining unit in accordance with the collective bargaining agreement. All the work described in this "no-subcon- tracting clause" shall be performed by jour- neyman and/or apprentice sheet metal work- ers in the bargaining unit covered by this agreement. No penalty is specified in the no-subcontracting clause. However, rule XIX of the agreement provides that the penalty for violation of the agreement shall be censure for the first offense; and on the second offense, imposition of a fine commensurate with the loss adjudged by the Joint Adjustment Board to have been sustained by journeyman sheet metal workers by reason of such violation. Background Carrier manufactures moduline air-conditioning units. It began the manufacture of a variable volume moduline air-conditioning unit, designated the model 37P unit, in the early 1960's. Later improvements led to the development of the 37A unit which has been manufactured since 1970. Both of these units includ- ed prefabricated plenums. Although numerous parts of each are patented, the plenum is not. The plenum is essentially a four-sided sheet metal box which, in- ter alia, serves for the housing or receipt of air and noise abatement. In the New York metropolitan area, Local 28 members have traditionally fabricated and installed the plenums on conventional air-condi- tioning units. Carrier's position is that, due to the design of the moduline units, specially trained per- sonnel working under the supervision of Carrier engi- neers and utilizing costly equipment are required to perform the work of mating the plenum to the con- trol portions of the unit and the calibration and ad- justments necessary to assure proper plenum pres- sure and air flow. Carrier first attempted to market its moduline unit in the New York metropolitan area in 1966. Carrier had contracts for the installation of 37P units at its home office and at Presbyterian Hospital. At a meet- ing in November 1966, Respondent's president told Carrier's district manager, Contardi, that the plenum section of the unit should be made in a New York shop having an agreement with Local 28. In January 1967, the 37P units with prefabricated plenums were delivered to Carrier's home office for installation. The president and a business agent of Respondent told Contardi that these units could not be installed; the plenums would have to be made in New York. The matter was brought before the Joint Trade Board by Respondent. Subsequently, on or about January 29, 1967, it was agreed that the installation of the 37P units would proceed at Carrier's home office and at the Presbyterian Hospital in consider- ation for which Carrier would redesign the unit so that the plenum could be made in New York. In September 1967, Carrier became involved in the construction of a new Police Office Building for the City of New York. The building specifications called for the use of Carrier's 37P units. As a result of the objections of Respondent's president to the use of the 37P units, a series of meetings occurred in Sep- tember and October 1967 between union officials, Carrier's representatives, and representatives of the City. On October 31, 1967, the parties agreed that Carrier would develop a design which would make possible the fabrication of the plenum in New York shops and that Carrier would assume responsibility for the air-conditioning units on the project even though the plenums were to be fabricated in a local shop. Thereafter, the plenums used in the 37P units installed in the Police Office Building were manufac- tured by Triangle, a shop employing employees rep- resented by Respondent. After installation of these units, it developed that there were serious problems with leakage in the units for which Carrier was held liable. Carrier contends that the fabrication of the plenums in New York shops made the moduline units defective and uncompetitive in price, and con- sequently difficult to market. Carrier developed the 37A unit in 1970. On or about August 8, 1970, Carrier representatives met with Respondent's president and other union agents. Carrier representatives showed the union agents the new 37A unit, stating that it was well received throughout the country, that it was a new design, and in their opinion, the plenums for it could not be SHEET METAL WORKERS LOCAL 28 729 made in New York. Respondent's response was that a study of the problem would be made. A number of subsequent meetings failed to produce a resolution of the dispute. In August 1972, Contardi and other Carrier repre- sentatives met with Respondent's president, then Daniel Pasquinucci. As a result of this meeting, Pas- quinucci referred the matter to the research and re- view committee, a committee of three union mem- bers known for their expertise and experience in the industry. After studying the problem, this committee recommended acceptance of the moduline unit, fac- tory fabricated, leak tested and calibrated. Facts Surrounding the Alleged Violations On June 5, 1973, Local 28's executive board adopt- ed a resolution that "no allowance be made in the c.b.a [collective-bargaining agreement] at all to allow the dual Moduline Mixing Box in the New York city area." This resolution was presented to and adopted by the general membership on June 21, 1973. In early 1973, plans were prepared for the con- struction of the Van Etten Drug Treatment Center. The mechanical specifications for heating, ventila- tion, and air-conditioning called for the use of "vari- able volume linear air diffusers, Carrier Moduline or approved equal." The heating, ventilation, and air- conditioning contractor on the project, Acme Cli- mate Control Corp., issued a purchase order for the Carrier 37A units pursuant to the specifications. Sub- sequently, Acme subcontracted certain sheet metal work, including the installation of the Carrier 37A units on the project, to Three Boro, who was by a separate agreement bound to the terms of the collec- tive-bargaining contract between Respondent and SMACNA. On October 8, 1973, the verbal agree- ment between Acme and Three Boro was confirmed in a letter in which Three Boro stated: We agree to install only (furnished by others) air outlets, fans, air conditioning equipment (50% labor) automatic dampers, sound traps. We take exception to the following: removals of ductwork, cutting, patching, painting, house- keeping, pipe sleeves, testing and balancing, fin- tube enclosures, plenums for Carrier units (sup- ply outlets)... . On October 18, 1973, the erasure of the Carrier Moduline units from the drawings of the Van Etten job was discovered. Joseph Reyes, the president of Acme Climate Control Corporation, testified that Ted Johansmeyer, a ' sketcher employed by Three Boro and a member 'of Respondent, told Reyes that he had erased the Carrier units from the drawings. Upon being informed of the problems on the Van Etten job, Contardi called Pasquinucci. Contardi's account of the telephone conversation, which the Administrative Law Judge credited was: Contardi: Dan I hear there's trouble on the Van Etten job. Dan, I understand you have re- fused to let them sketch the job. Pasquinucci: That's so. Contardi: Dan, are you, as a union represen- tative, telling me, as representative of Carrier, that you will not permit this unit to come in, into New York? Pasquinucci: That's so. Contardi: Well, you know what this is going to mean. Pasquinucci: That's so. Carrier filed the charge in Case 2-CC-1296 on Oc- tober 26, 1973, based on the events concerning the Van Etten job. However, the parties continued to at- tempt to resolve the dispute without litigation. On November 13, 1973, Contardi and other Carrier spokesmen met with Respondent's officials. At this meeting Pasquinucci told the Carrier representatives that "he could not permit the unit to come in [to New York]." On December 27, 1973, Carrier filed the charge in Case 2-CE-66. In January 1974, Columbia Presbyterian Hospital entered an agreement with H. Cohan Contracting Corporation to perform all the mechanical work on its Babies Hospital Addition, in accordance with the building specifications prepared by architects and consulting engineers. The specifications called for the installation of Carrier's 37AF air terminal units, including plenums as fabricated by Carrier. Cohan confirmed the purchase order with Carrier for the 37AF units with plenums installed on May 29, 1974. On or about June 11, 1974, Cohan subcontracted cer- tain sheet metal work on the project, including instal- lation of the Carrier moduline units as specified, to General Sheet Metal, Inc. General is a member of SMACNA and is bound by the standard form agree- ment between that association and Respondent. Meanwhile, in March 1974, Pasquinucci and Con- tardi tentatively agreed that Respondent would ac- cept Carrier's moduline units as factory fabricated in consideration for which Carrier would withdraw the instant unfair labor practice charges and promote the moduline units so as to provide additional sheet met- al work. This agreement was not executed due to the upcoming union election which Pasquinucci lost to Robert Stack. On July 19, 1974, Contardi met with the newly elected president, Stack, to discuss the agreement made with Pasquinucci. After reviewing the situation, Stack told Contardi that Respondent 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had decided to `,`-insist- that [Carrier] go along with the agreement as written." Respondent filed charges against General under the SMACNA agreement on November 7, 1974, and requested a hearing and determination by the Joint Adjustment Board.6 The grievance charged that: General is in violation of our Collective Bar- gaining Agreement Addendum "B", Part II, last unnumbered paragraph, by permitting and for accepting work covered by our Agreement-fa- brication of plenums-involving the Carrier Moduline Unit, for installation at the Presbyte- rian Medical Center, Babies Hospital, (168th Street and Broadway New York City) to be per- formed by persons who are not within the bar- gaining unit covered by our Agreement, rather than by its journeyman and apprentice sheet metal workers. Respondent proposed that General pay the sum of $2153.60 to the Local 28 Sick Dues Relief Fund, rep- resenting the loss of man hours caused by General's alleged violation. As a result of this claim, General ceased the installation of the Carrier units at the Ba- bies Hospital site. The work was not resumed until Carrier agreed to reimburse General for the amount claimed by Respondent. Discussion As noted, the Administrative Law Judge found that the presentation to and adoption by the general membership on June 21, 1973, of the executive board resolution that no allowances be made in the collec- tive-bargaining agreement for the moduline units, constituted a violation of Section 8(b)(4)(i)(B). We disagree. Respondent's executive board simply phrased the proposition to be decided, made a rec- ommendation, and submitted that recommendation for acceptance or rejection. The resolution merely asked the union members to decide whether their contractual rights should be waived. The Board has held that a union agent's inquiry of neutral employ- ees as to whether they would leave the job if request- ed by the union, so as to put pressure on the primary employer, was not inducement and encouragement within the meaning of Section 8(b)(4)(i)(B) of the Act.' The resolution here is even less interpretable-as a "request or suggestion" that the union members refuse to perform services as there is no suggestion in the resolution that the contract would be enforced by proscribed economic action. 6 The Joint Adjustment Board, a body consisting of an equal number of representatives of the Union and of the Employer Association, is estab- lished by the collective-bargaining agreement for the purpose of resolving grievances arising out of the interpretation or enforcement of the contract i Local 139, International Union of Operating Engineers, AFL-CIO, (Fox Valley Construction Material Suppliers Assn, Inc) 182 NLRB 72 (1970) The Administrative Law Judge also found that Pasquinucci's statement to Carrier representatives on November 13, 1973, and Stack's statement to Con- tardi on July 19, 1974, both to the effect that-modu- line units would not be allowed into New York City, constituted violations of Section 8(b)(4)(ii)(B). We cannot adopt these findings. The statements were no more than reiteration of Respondent's position that it would not relinquish its rights under the collectiye- bargaining agreement. There, is no suggestion that Respondent would attempt to enforce the agreement by means other than those provided by the agree- ment. Consequently, we find that these statements do not constitute "threats, coercion or restraint" within the meaning of Section 8(b)(4)(ii)(B), and that Respondent's efforts to enforce its collective-bar- gaining agreement did not violate Section 8(e).8 With regard to the filing of the grievance against General Sheet Metal in November 1974, our decision in Associated General Contractors, supra, requires a finding that Respondent did not violate Section 8(b)(4)(B) 9 and that the contract as so applied did not violate Section 8(e).10 By instituting the grievance proceeding against General Sheet Metal, the Respon- dent merely "sought to enforce certain provisions of [its] bargaining agreement against a party to that agreement through peaceful means provided by the agreement and by,no other means." 11 As the Board stated in Associated General Contractors at 700: [A] contractual agreement, such as we have be- fore us, for compensation of a breach of con- tract determined by contractually fair proce- dures is a reasonable and peaceful method of resolving a dispute. Consequently, we find the Union's use of its contract-in its dispute with Ohland did not constitute statutorily proscribed threats, coercion, or restraint. 8 The Respondent contends that in any event these statements do not violate Sec 8(b)(4)(u)(B) as they are directed to the primary party to the dispute For the reasons discussed infra, we find it unnecessary to reach the primary-secondary employer issues inasmuch as we find the Respondent has not engaged in coercive tactics proscribed by the Act. 9 The Administrative Law Judge found that the institution of the griev- ance proceeding constituted a violation of Sec 8(b)(4)(B), following the reasoning of the Ninth Circuit Court of Appeals in Associated General Con- tractors of California, Inc, v N L R B, 514 F 2d 433 (C.A 9, 1975) With all due respect to that court, we adhere to our decision in Associated General Contractors, 207 NLRB 698 The Administrative Law Judge also relies on Connell Construction Co, Inc, v. Plumbers & Steamfitters, Local 100, 421 U S 616 (June 2, 1975) That case is inapposite, inasmuch as it involved economic activity by a union to force a general contractor, whose employ- ees it did not represent , to enter into a no-subcontracting agreement 10 The Administrative Law Judge found that the contract as written vio- lated Sec 8(e) No such violation was alleged Moreover, we see no basis herein for making such a finding. We also disavow the Administrative Law Judge's discussion of purported violations of Sec. 8(e) based on events oc- curring more than 6 months prior to the filing of the unfair labor practice charges. Pursuant to See . 10(b) of the Act, these facts were not before the Administrative Law Judge for consideration as violations of the Act. u Associated General Contractors of California, 207 NLRB 698, 699 SHEET-METAL WORKERS LOCAL 28 As to the allegation that in violation of Section 8(b)(4)(i)(B), Respondent attempted to enforce its rights under the collective-bargaining agreements by inducing employees to refuse to perform work in- volving the Van Etten Drug Treatment Center pro- ject, we conclude that the evidence is insufficient to sustain this contention. There is no direct evidence that union members employed by Three Boro were encouraged or induced by Respondent to refuse to perform services. Pasquinucci's response "That's so" to Contardi's query "I hear you have refused to let them sketch the job" was ambiguous, and cannot be interpreted as an admission that Respondent encour- aged its members to refuse to work, since throughout this prolonged dispute Respondent has consistently relied on its contractual rights and remedies. Further, there is no evidence that Pasquinucci or any other agent of Respondent communicated to Johansmeyer, the employee who erased the sketches at that job, that he should engage in such conduct or any other conduct proscribed by Section 8(b)(4)(B). The record also is devoid of evidence that Johans- meyer was an agent of the Respondent. It is well established that a union is not liable for the acts of its members in the absence of a principal-agent relation- ship. A union member's refusal to work, even though stemming from the union's position in a dispute with the employer, does not constitute a violation of Sec- tion 8(b)(4)(B) in the absence of evidence that the union is legally responsible for his conduct.12 As in Associated General Contractors and Kimstock Division, having found that Respondent has not re- sorted to the coercive tactics proscribed by the Act, we find it unnecessary to reach the secondary-prima- ry employer and work preservation issues on which the Administrative Law Judge passed. In view of the foregoing, we shall dismiss the com- plaint in its entirety. ORDER It is hereby ordered that the complaint, as amend- ed, be dismissed. DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Administrative Law Judge: This is an unfair labor practice case litigated pursuant to the 12 International Brotherhood of Electrical Workers, Local No 43, AFL-CIO (Executone of Syracuse, Inc.), 172 NLRB 621 (1968) See also Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO (Forest Electric Corp.), 205 NLRB 1102 (1973) 731 provisions of Section 10(b) of the National Labor Rela- tions Act, herein called the Act. 29 U.S.C. 160(b). It was commenced by a consolidated complaint issued on Febru- ary 28, 1974, by the General Counsel of the National La- bor Relations Board, herein called the Board, through the Regional Director for Region 2. That complaint is based on a charge filed on October 25, 1973, and one filed on December 27, 1973, by Carrier Air Conditioning Compa- ny, herein called Carrier. Said charges and the complaint name Sheet Metal Workers International Association, Lo- cal 28, AFL-CIO, herein called Local 28, as the Respon- dent, and the complaint names Three Boro Sheet Metal and Ventilating Co., Inc., herein called Three Boro, as Par- ty to the Contract. In substance, said complaint as amended at the hearing alleges that Respondent violated Section 8(b)(4)(i) and (ii)(B) and 8(e), and that such conduct affects commerce within the meaning of Section 2(6) and (7), of the Act. Respondent, also called Local 28 herein, has answered, ad- mitting some allegations of the complaint but'denying that any unfair labor practices were committed. On November 18, 1974, Sheet Metal and Air Conditioning Contractors National Association, New York Chapter, Inc., herein called the Association, was permitted to intervene as an interested party. Pursuant to due notice this case came on to be heard, and was heard before me, at New York, New York, from March 10 to 14, both inclusive, and April 15, 1975. All parties were represented at and participated at the hearing, and had full opportunity to introduce witnesses, file briefs, and offer oral argument. Briefs have been received from the General Counsel, 'Carrier, and Local 28. Respondent's motion to dismiss was denied. Upon the, entire record in this case, and from my obser- vation of the demeanor of the witnesses, f make the follow- ing: FINDINGS OF FACT 1. AS TO JURSIDICTION Carrier, a division of Carrier Corporation, a Delaware corporation, is engaged in the United States in manufac- turing, selling, and distributing air-conditioning equipment and related products. During 1973, a representative period, Carrier sold and distributed products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from its place of business in interstate com- merce directly to States other than, the States in which it is located. I find that Carrier is an employer within the mean- mg of Section 2(2), and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction over Respondent in this proceeding. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED came to an agreement. (G.C. Exh. 2, app. G.) Said agree- ment.in part provides that "Carrier . . . are presently de- veloping a system of the terminal which would make possi- ble the manufacture of the plennum [sic] by the Local" i.e., Local 28. As a result of said agreement Triangle Sheet Met- al Company, which has a collective-bargaining contract with Local 28, received an order from New York City to provide the plenums for the police office building. Following October 1967, when the foregoing agreement was entered into, Carrier made efforts to market the 37P units as redesigned in New York City, but "just couldn't sell the unit. . . . It was not economically feasible, it would not sell." So in 1970 Carrier introduced its 37A unit. This unit was manufactured in Tyler, Texas. In August 1970, Farrell requested Contardi of Carrier to abide by the agreement (G.C. Exh. 2, app. G), so that the plenums on 37A units would be manufactured in New York City. Con- tardi replied that Carrier had been unsuccessful in mar- keting the 37P unit, and that the 37A unit as manufactured by Carrier "had more appeal to the industry, because it's narrower." He also informed Local 28 on this occasion that "we were not able to fulfill what we had talked about pre- viously about making the plennum [sic] section in New York and we asked for consideration." Farrell took it "un- der advisement" but, until he died in 1972, Farrell "main- tained his old position. He did not change." After Farrell passed away, he was succeeded as president of Local 28 by Pasquinucci. Contardi soon met with Pas- quinucci and informed the latter that Carrier "couldn't make the unit as proven by evidence. We hadn't sold the job in several years." Then Pasquinucci answered he would appoint a committee to study the problem and come up with a recommendation, but that "until we had some kind of understanding" Carrier "could not bring the unit in." The unit as made was,unacceptable in New York. Pasquinucci did appoint such a committee and Contardi appeared before it in September 1972. Contardi demon- strated to them with an actual plenum section. He demon- strated to them that the way Local 28 wanted things done "they could see why it [the plenum made in New York] was leaking, they could see why we had the problems and that it was a bad deal." He "showed them how and why it leaked" when the plenum was manufactured in the New York area. Later the Local 28 committee made a recom- mendation which was presented to its executive board and gave Contardi a copy thereof. (G.C. Exh. 2, app. I). Said committee recommended "acceptance of Carrier Moduline variable system factory fabricated, leak tested. and calib- rated." In late November 1972, Contardi spoke to Pasquinucci, asking the latter "what he was going to do, inasmuch as he didn't get it by the executive board." Pasquinucci "felt this unit should be admitted to New York" as fabricated in Tyler, Texas, notwithstanding that the Local 28 executive board disagreed with him. In early 1973 Pasquinucci had one of the committeemen "make a presentation to the membership [of Local 28] at one of the union meetings in an effort to sell the membership on the idea" espoused by Carrier. But the membership turned down "the idea." In August 1973, Carrier received an order for 37A units from its distributor, Carlton Stewart, for a job at the Van Local 28 is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. General Counsel's Case A. C. Contardi, Carrier's district manager for its ma- chinery and systems division which covers metropolitan New York, testified substantially as follows: In such divi- sion Carrier "primarily operates in the construction and engineering phases" of refrigeration, heating, and "the en- tire line of air conditioning." When the owner of a building needs such equipment, Carrier works with the owner's ar- chitect and the owner's mechanical engineer "in the design of this equipment." As a result, Carrier's "equipment is part of the design, included in the specifications ... so that when the job is bid by the owner through general con- tractors, we will get a fair chance to bid competitively." After a contractor bids on a job, Carrier deals with the contractor "to sell them the equipment, which meets the specifications, which is part of the design." A 37P unit is "a Moduline terminal device which controls the air, which varies the volume of the air which is discharged into the room." (See G.C. Exh. 2, app. A.) Another type of Modu- line unit is in General Counsel's Exhibit 2, appendix B. 37P units have been manufactured by Carrier since 1963. Carrier's 37A and 37P units are manufactured in Tyler, Texas, and prefabricated there. In 1966 and 1967, Carrier attempted to market the 37P unit in the New York City area. At that time Carrier showed such a unit to President Farrell and Mulhearn of Local 28. Said officials of Local 28 said that such unit "could not come into New York," but if "the so-called plennum [sic] section [thereof] should be made in [a] New York [shop, a Local 28 affiliated shop] then the unit could come in." Thereafter Carrier did supply such units for some buildings in the New York area. Far- rell told Carrier that the unit "could not be installed, the lower section would have to be made in New York in a Local 28 shop . . . the fuser plate . . . and the plennum section [should be] made locally." Apparently Farrell's re- quest was not honored by Carrier. Later Carrier was "brought up on charges within" the Mechanical Contractors Association, to which it belonged, for making the above part of the unit away from New York. Farrell, who attended, complained that Carver was "fabricating this stuff in a nonunion shop down in Texas," and stated "the unit as made would not come into New York." In January 1967, Carrier again met with Farrell. A "deal was consummated" to let Career proceed with two New York jobs it was supplying in return for Carrier's "proceeding to attempt to design a unit that would fulfill [Farrell's] requirements." A few months later Carrier supplied the unit in the New York police office building. Farrell objected to Carrier as to the design of the job because, among other things, "they were using the Moduline unit as designed in Tyler, Texas." Farrell also claimed that Carrier was not living up to the above "deal" which it made with Farrell. Ultimately they SHEET METAL WORKERS LOCAL 28 Etten Drug Treatment Center, as the architect and the en- gineer on this job had decided "to put Moduline on the job." Carrier's Baltimore office worked with said architect and engineer "for the design of the job." Three Boro was the sheet metal contractor on said job. In October 1973, Contardi complained to Dan Pasquinucci of Local 28 that Dan "had refused to let them sketch the job," and that Dan "will not permit this unit to come into New York." Dan replied. "That's so." Such sketching was to be performed by a union mechanic who was a member of Local 28. Consequently a charge under Section 8 of the Act was filed by Carrier against Local 28. In November 1973, Contardi and other representatives of Carrier met with Pasquinucci to "discuss the problem." Pasquinucci- insisted that he "could not permit the unit to come in and suggested that [Carrier consider] sending into New York the cut pieces of the unit, deliver them to some shop in New York, which could take the cut pieces and put them together and make the units." Pasquinucci further stated that ultimately, after Local 28 men "got the experi- ence, . . . the entire unit would be made in New York." Later Contardi informed Pasquinucci that Carrier "would not bring any units in for fabrication in New York." Then in January 1974, Carrier shipped seven 37A units to the Van Etten Drug Treatment Center, and the remain- der in February. In February 1974, Local 28 and Carrier arrived at an agreement that the Van Etten job should go ahead without interruption, that Carrier would by March 15 "prepare an outline of what had been [agreed upon] in writing," and "it was understood we would not sign it until July 1st." Carrier did prepare such outline. In May 1974, Pasquinucci discussed with Contardi a job at Presbyterian Hospital. Pasquinucci suggested he should reactivate the Local 28 committee, mentioned above, and that Contardi meet with it. Contardi met with that commit- tee in late May and attempted to convince it that the ple- num "was a minor portion of the work that they lost. The unit would . . . definitely increase the total volume of work for them," i.e., for Local 28. Apparently, no agree- ment was reached on such issue. On July 1, 1974, Stack defeated Pasquinucci in an elec- tion for the presidency of Local 28. Contardi met with Stack on July 19. Stack promised to review the situation with the executive board of Local 28 "and others" and would then "have an answer." A few days later Stack in- formed Contardi that Local 28 was "going to insist that [Carrier] go along with the agreement as written," i.e., "Lo- cal 28's agreement with the association." On cross-examination, Contardi explained in detail how a plenum, as well as the entire unit of which it is a part, functions. Among other things, Contardi stated that the unit "can never work separate of the plennum. . . . in order to give the guarantee that we give with that unit, we assem- ble part of the plennum with part of a section of the unit, called the control assembly."' He also mentioned that a "plenum [is] used in practically every air-conditioning sys- tem, in one fashion or another." Further, on cross-examination, Contardi testified that members of Local 28 did work on some plenums in the past made in New York by employers having contracts with Local 28 but not on plenums of the type known as 733 37A and 37B. These latter types and the units of which they were a part have ' always been made by Carrier in Tyler, Texas. But President Farrell of Local 28 claimed that such plenums should be made in New York . Farrell also brought charges against Carrier before the Joint Ad- justment Board that Carrier was "bringing in a unit that shouldn't be brought in here," and that this violated the contract between Local 28 and an association to which Carrier belonged. - Then in November Farrell claimed Local 28 members should make the plenum on Carrier 's 37P unit because the plenum was a "customary, traditional item made by the [Local] 28 men." Later Carrier and Local 28 agreed that Carrier would attempt to design the unit to be made in two pieces so that the plenum would be made in New York. Up to then it was Carrier's position that the unit was one piece and the plenum, as part of that one piece , was to be made somewhere else than in New York. Further, on cross, Contardi testified that on the police office building job Triangle Sheet Metal fabricated and provided the plenum using plans and specifications' sup- plied by Carrier . Later Triangle claimed said plans and specifications were incorrect . This was settled by Carrier's paying Triangle $ 10,000 in addition to the regular contract price to "modify" said plenums. But Carrier made said payment only because it guaranteed to the New York po- lice that said plenums would function and thus was respon- sible for Triangle's errors in "not maintaining the toler- ances" on such plenums. Such incorrect tolerances caused the units to be defective and to leak on the jobsite. So Carrier paid the $10,000 to Triangle "to modify the boxes so we [Carrier] could fulfill the guarantee." Finally, on cross, Contardi testified that, although by reason of Carrier's fabricating the unit some work would be lost by members of Local 28 in the New York City area, there would be additional work, such as "additional duct work," for such members by reason of their installing the unit which "would more than offset the loss of the plenums." On redirect examination, Contardi testified that the air- conditioning units installed at the World Trade Center were sold by Carrier . Notwithstanding that the plenum for such units was manufactured in Tyler, Texas, members of Local 28 installed said units at the Center . Also, Carrier has sold similar air-conditioning systems, as well as other types of systems in the New York City area, and the units thereof, "literally hundreds of thousands," including their plenums, were manufactured in Tyler, Texas. Yet members of Local 28 installed those systems in the New York City region "without question or problems with respect to who was to perform the work or fabrication of any aspect of that." Raymond Skorupa, an architect, testified essentially as follows for the General Counsel. He was employed by Isa- dore and Zachary Rosenfeld as a project architect from 1972 to December 1974. He produced the drawings and specifications on the Van Etten Hospital job. (G. C. Exh. 2, app. P and particularly pp. 15B - 19 and 20). These call for the use of Carrier Moduline 37A units because they were recommended by the engineering firm of Henkins and An- derson and thereafter the owner approved the installation of such units. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On cross-examination, Skorupa testified "as far as I was concerned, it didn't matter where the unit [or the plenum for Van Etten Hospital] was manufactured, any part of it I didn't care where any of the pieces were manufac- tured, as long as they met the criteria in the specifications." Nor did the specifications provide who was to fabricate any of the components for the unit or where the unit or its three components were to be assembled. Another witness for the General Counsel was Lawrence Sturgis. An adequate synopsis of his testimony follows. He is president of Advanced Control Corporation, which man- ufactures items for the heating, ventilating, and air-condi- tioning industry. From 1966 to 1973 he was executive di- rector of the promotion fund of the sheet metal industry. Said fund is interested in increasing work opportunities for members of Local 28. Prior to that he was a consulting mechanical engineer. Such an engineer designs a system which "has optimum operating advantage keeping down the costs" in heating, ventilating air-conditioning, plumb- ing, and electrical work." As executive director of the foregoing promotion fund, Sturgis cooperated with a Local 28 committee which was studying variable volume air-conditioning units, one of which was Carrier's Moduline unit. According to Sturgis, a sketcher in the sheet metal industry is one "who does the complete layout and background [of] the structural, archi- tectural, and to some extent the plumbing and piping .. . work, in a given project, where it applies to the ventilation industry." Sketchers are members of Local 28. In the fall of 1972 he asked President Dan Pasquinucci of Local 28 to appoint a committee to study the variable volume system, and Pasquinucci did so. Later Pasquinucci indicated to Sturgis that he had read said committee's re- port and looked upon it favorably. Said report is in evi- dence as General Counsel's Exhibit 2, appendix I, and its stated purpose is "To Evaluate the Carrier Moduline Vari- able Volume Unit." Said committee recommended unani- mously "acceptance of Carrier Moduline variable volume system,, factory fabricated, leak tested, and calibrated." Pasquinucci told Sturgis that he favored the committee re-, port but had to obtain the approval of the executive board of Local 28. Later in the fall of 1972 Sturgis met with the executive board of Local 28. He argued that "the variable volume system [be] brought into New York" because it would "in- crease the net amount of work that would be done by members of Local 28." Members of said board then ques- tioned Sturgis about the possible "loss of work opportunity by not manufacturing the plenum box that is attached to the unit." Admitting such loss Sturgis contended that if the plenum was not made in New York "the variable volume system would more than make up for that particular loss." But Sturgis later learned that the board turned down his recommendation. In early 1973 the Joint Adjustment Board, a group con- sisting of labor and management, and Sturgis discussed the Carrier Moduline system. He urged said board to "adopt a favorable policy towards" the variable volume systems. On cross Sturgis testified that, to his knowledge, Local 28 "always" fabricated the plenum or the box in a unit. But he added that such plenums differed from those in a 37A "both in the controls that are placed inside the unit and the function that it serves." In his discussions with President Pasquinucci of Local 28 Sturgis agreed that a plenum was a box, but disagreed that it was a routine box and insisted that "the variable volume system was far more sophisticat- ed as a unit than the normal plenum above a linear diffus- er." However, it made no difference to Sturgis whether the components of the variable volume boxes were made in New York, Texas, "or any place else," or if the plenum was made in New York and the other parts elsewhere. Additionally, on cross, Sturgis testified that he appeared before the Joint Adjustment Board, a group composed of employers and Local 28, to "modify or amend" his agree- ment, i.e., "to try to have them waive the claims that the work was done historically" by Local 28. (G.C. Exh. 2, app. W-l.) But on that occasion he contended before the Joint Board that "the variable volume unit [i.e., the whole unit, including the plenum box] is obviously a relatively new item in the industry. There is nothing historical or tradi- tional about it.... I didn't ask that something historically and traditionally made by 28 be not made" by Local 28. Finally, on cross, Sturgis asserted that prior to the intro- duction of the, Carrier Moduline unit Local, 28 had not made a box which was cut and fabricated in such a manner that a control and assembly, such as that used on a Carrier unit, could be'attached; but there are now about 10 shops in the New York City area which are producing compara- ble boxes. Howard Bretz, a member of Local 28 and a sheet metal draftsman for Triangle Sheet Metal, testified substantially as follows for the General Counsel. He is also a sketcher. A sketcher prepares shop drawings on the drawing board. About 6 years ago President, Farrell of Local 28 appointed him to its research and review committee to make a study of variable volume systems. Such study, which was under- taken in 1972, was suggested by Larry Sturgis of the indus- try fund. Then said committee issued a unanimous report recommending "acceptance of Carrier Moduline variable volume system, factory fabricated, leak tested, and calib- rated." (G.C. Exh. 2, app. I, p. 1.) Such report was then presented to executive board of Local 28 on October 12, and again on November 21, 1972. On the latter date the said committee recommended that Local 28 accept Carrier's request that Local 28 waive a provision of said union's "standard form of union agree- ment to fabricate the boxes, the plenums." This recommen- dation would cause some loss of work to Local 28 members but would result in additional other work which would more than offset said loss of work. But the executive board made no decision respecting this proposal at that time. Said board met again on June 5, 1973, and further studied the problem. On this last occasion the board rejected the committee's proposal. At a general membership meeting after said June 5 rejec- tion, Bretz objected to acceptance of the board's position, and recommended "two pilot jobs to see if this [the committee's proposal] was a workable solution." But the members at said meeting accepted the board's recommen- dations and rejected those of the committee. Another witness for the General Counsel, Joseph Reyes, declared under oath substantially as follows: He is presi- SHEET METAL WORKERS LOCAL 28 dent of Acme Climate Control Corporation, which is en- gaged as a contractor in heating, ventilating, and air-condi- tioning. Acme received a contract on October 1, 1973, from Ormar Construction Company to work on the Van Etten Drug Treatment Center. (G.C. Exh. 2, app. R.) Subse- quently, on December 6, 1973, Acme made a contract with Three Boro,Company, the "Party to the contract" in the instant case ,(G.C. Exh. -2, app. T), but this contract was preceded by an understanding dated October 8, 1973. Sometime in October 1973, Acme commenced perform- ing work at the foregoing jobsite. Originally the sketches pertaining to Acme's work required the installation of Carrier's Moduline units. One day, following a conversa- tion with Ted Johansmeyer, a sketcher on the job em- ployed by Three Boro, and who was a member of Local 28, Reyes observed that the Carrier Moduline units had been erased from the tracing or sketch. Johansmeyer told Reyes that he had made said erasures . Reyes assumed that Johansmeyer had prepared the sketch originally with the Moduline units drawn in. On February 15, 1974, Reyes wrote-to Three Boro that "all of the Carrier Moduline units are ready for delivery to the [Van Etten Drug Treatment Center] job." (G.C. Exh. 16) On February 21, 1974, Three Boro replied by letter to Acme that Carrier's Moduline units contained ple- nums "which is not in our proposal . . . of October 8, 1973," and that said proposal "is in conformance with our signed contract agreement with "Local 28. (G.C. Exh. 17.) Then, on February 25, 1974, Acme wrote to Three Boro, "it is our understanding-that all differences have been resolved between Local 28 and Carrier Corporation insofar as the installation of Carrier Moduline units for [the Van Etten Drug Treatment] job.,.... Based on this agreement you have agreed to proceed with the installation of these [Car- rier] units." (G-C. Exh. -18.) Acme's purchase order for such Carrier units is set out in General Counsel's -Exhibit 2, Appendix 5. Said order in- volves, according to, Reyes, complete, units "with the ple- num-,box attached." At no time did Acme make arrange- ments or agree to have any' component part, such as the plenum, of the Carrier Moduline units to be fabricated "somewhere else" than, Carner, such as by Three' Boro. Daniel Fragnito, another witness for the GeneralCoun- sel, gave testimony substantially as follows: He is Camer's engineering section manager for the Moduline units manu- factured in Tyler, Texas. The first 37P Moduline unit was installed in 1961 in a high school in Beaumont, Texas. In 1970 he visited Essex Sheet Metal Company's shop in the New York City area "to look at a plenum" in connection with a job involving Staten Island Community College in New York City. Essex,, which recognizes Local 28 and has a contract with it, made a plenum for Carrier's Moduline unit. What he saw "didn't have, a chance in the world of working" because it could not satisfactorily be "mated" with Carrier's Moduline unit, and he explained this to Es- sex. Fragnito in 1969 provided a special design of the Carrier Moduline 37P unit for the New York police headquarters job. Triangle Sheet Metal Company called on him at Camer's Syracuse, New York, laboratory, in December 1970, to "check out the installation procedure of the unit" 735 in a "mock-up installation" of the unit. Such "mock-up" presented "some problems at the time of installation" which demonstrated "it was very difficult to insure ... a proper ... air seal." Further, he testified that on the Mo- duhne 37A unit "it is much more difficult to put on [the plenum section] separately," i.e., "it is better for [Carrier] to produce the whole thing [in Tyler, Texas] than to have some of it produced by [Carrier] and some of it [the ple- num] by someone else." Continuing, Fragmto explained why it was almost neces- sary, and certainly better, for Carrier to make the plenum in Tyler, Texas, rather than have outsiders in New York fabricate it. In this connection, he mentioned that those in Tyler, Texas, including "supervisory and management peo- ple," fabricating such units receive special training to qua- lify them to manufacture such units, and that the plant there is specifically designed to manufacture units with the plenum included in the units. In fact, according to him, "it would be extremely difficult" to "mate the plenum boxes to the controls" if the plenums are manufactured outside of Carrier's Tyler, Texas, plant." Finally, on direct, Fragnito testified that patents cover Carrier's Moduline units 37A and 37P, and that the ple- num cannot be produced in the "Local 28 shops" without obtaining permission from Carrier as the holder of such patents. The Staten Island job, the New York police head- quarters job, and perhaps "one or two other minor jobs" had their plenums made by a manufacturer in the vicinity of New York City under a license from Carrier as the pat- ent holder. Except for those jobs mentioned in the preced- ing sentence no other manufacturer than Carrier had made Moduline units 37A or 37P. On cross, Fragnito testified that Carrier received com- plaints that the Moduline units installed on the New York police building job and the Staten Island job were not functioning properly. Also, on cross, he testified that the special training and equipment connected with Carrier's Tyler, Texas, plant could be effected elsewhere "as long as they were within the manufacturing plans of Carrier .. . and as long as [non-Carrier manufacturers] had the backup information and the backup personnel." Further, on, cross, Fragnito stated that on the New York police headquarters job all the parts of the unit, but the plenums were manufactured by Carrier in Tyler, Texas, that the plenums were fabricated by Triangle in the New York City area, and that Triangle assembled all of said parts at the jobsite, to produce complete units. He gave the same answer with respect to the Staten Island job on which Essex installed the Moduline units, i.e., Essex ,fabricated the plenums and assembled the entire unit on the job, al- though Carrier made parts other than the plenums. But, according to Fragnito, Triangle fabricated said plenums differently from the way Carrier did, so that complaints about leaks were received by Carrier. ,Such complaints were submitted to Carrier because it guaranteed the entire unit. At this point in the hearing, the parties stipulated that Carrier Moduline units 37A and 37P are sold throughout the United States and that such units, including the plenum portion are installed as fabricated in Carrier's Tyler, Texas, factory by members of locals of Sheet Metal Workers In- 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ternational Association without objection, except in that area within the jurisdiction of Local 28. Examples of such installations are shown in General Counsel's Exhibit 8 with deletions therein for installations in New York City. It was further stipulated that on or about March 3, 1975, members of Local 28 employed by General Sheet Metal, Inc., began installation of Carrier 37af Moduline units at Babies Hospital addition, pursuant to an agreement (G.C. Exh. 2, app. Y) between General Sheet and H. Cohan Con- tracting Corp.; that the Joint Adjustment Board on or about March 5, 1975, discussed charges (G.C. Exh. 2, app. aa) brought against General Sheet; that no final action was taken on the resolution (G.C. Exh. 2, app. bb) of Local 28 at said meeting or on any other disposition of said charges. Then the General Counsel rested. B. Respondent's Defense Dan Pasquinucci was Respondent's first witness. His tes- timony may be condensed as follows: He is now an organ- izer for Sheet Metal Workers` International Association. Previous to that he was a business agent and then president of Local 28. He served as such president from April 1972, until June 30, 1974. In September 1972, he discussed Carrier's Moduline units with Larry Sturgis, the executive director of "the industry fund." Sturgis said he was inter- ested in promoting such units in New York City as he felt "it meant an additional amount of work for the member- ship of Local 28." Dan replied he was interested if it meant more work to the "shop men" of Local 28, "but it meant a modification of our collective-bargaining agreement" be- cause "we had members of Local Union 28 fabricating a similar box" for the last 15 years. So Dan said that the Local 28 executive board would have to approve the Car- rier Moduline unit because of the said provision in said union's bargaining contract. Dan promised to submit the question to the research and review committee of Local 28 for further consideration. Later Dan submitted the issue to the aforesaid commit- tee of Local 28. Said committee submitted a report to him recommending "acceptance of Carrier Moduline variable volume system." (G.C. Exh. 2, app., i.) He concurred in the committee's views, and presented such report to the execu- tive board of Local 28, informing said board he went along with the committee's recommendation. He told the board that "it would bring extra work into Local Union 28 .. . [although] it was in violation of our [collective-bargaining] agreement." But the board disapproved the committee's recommendation that Carrier, and not employers having contracts with Local 28, fabricate the plenums. (G.C. Exhs. 5 and 6.) Shortly after December 6, 1972, Dan informed Sturgis of the board's rejecting the committee's recommendation of Carrier's fabricating the plenum on Moduline units. Then Sturgis appeared before the board in February 1973, but after discussing the problem with him the board concluded it would adhere to its position but suggested that Sturgis present the problem to the Joint Adjustment Board. Sturgis did appear before said joint board and suggested a "pilot project . . . to see if . . . it would bring more work into the Local." Local 28 representatives present promised to refer the question of a pilot project to their executive board. Such question was given to the said executive board about April 1973. However, such executive board later re- jected said proposal of Sturgis. (G.C. Exh. 6.) Thereafter, Pasquinucci communicated to Sturgis the fact that such proposal had been rejected by the executive board. In October 1973, Contardi called Pasquinucci to tell him that the sketcher on the Van Etten job had refused to sketch the job. Pasquinucci replied, "I was just going to live under my contract" but added that he "wasn't going to stop any jobs." Later, Pasquinucci met with Contardi in December 1973 to attempt to resolve their differences. But nothing was accomplished. Then Pasquinucci held another meeting with Contardi in February 1974, "to see if we couldn't resolve the Van Etten job." It was agreed, among other things, that "Carrier Corporation would withdraw from selling the Moduline unit until we had resolved our differences." On March 12 Contardi gave Local 28 a writ- ten proposal embodying a solution of their differences. (G.C. Exh. 2, app. U.) Pasquinucci promised to submit this proposal to the executive board of Local'28 after July 1. In May 1974, Pasquinucci told Contardi that he had been notified that some Carrier salesmen were promoting the Moduline unit on certain jobs in New York City, and added that he felt that this was in violation of their oral agreement made in February 1974. Contardi agreed to look into this. Fred Zwerling, president of Triangle Sheet Metal Corpo- ration and its subsidiary, Moduline Metal Corporation, testified substantially as follows as a witness for Local 28. Triangle performed, among other things, the air-condition- ing work on the New York City police headquarters build- ing. This included installing the Moduline unit 37P for such headquarters. At the time Triangle bid on said job "there was an understanding between Carrier, the City, the design engineer, and Local 28 that the plenum portion of the unit would be fabricated by Local 28 in New York City." So Triangle purchased the Moduline section of the unit from Carrier, and Triangle "manufactured the plenum to fit that unit." Then Triangle fabricated said plenums in its plant at College Point, Queens, by employees belonging to Local 28. Triangle had made plenums "similar or compatible to this . . . many times" prior to this. "It was very simple sheet metal work." Then Triangle assembled at the jobsite the portion of the unit which Carrier furnished with the portion furnished by Triangle, using members of Local 28 for such purpose. Such assembling was "no more difficult or more complicated than many other jobs [Triangle] had done." Triangle started the police job in 1970 and complet- ed it in 1974. No unusual problems "with the operation or installation of these units were encountered." Prior to installing the units Triangle ran some tests on them and discovered some leakage of air from the plenum Moduline combination which Zwerling claimed resulted from Carrier's improper fabrication. So Triangle called "this defect" to the attention of Carrier. See Resp. Exh. 4. Carrier advised Triangle how to correct this. See Resp. Exh. 5 and 6. However, this involved "additional expense and cost to Triangle." This cost was submitted to Carrier (See Resp. Exh. 7) and the latter made a "settlement" SHEET METAL WORKERS LOCAL 28 737 thereof. See Resp. Exh. 8. After the units were installed, they were tested "with respect to their air distribution in the unit and these disclosed that "the building was working satisfactorily, and accepted by the owner for occupancy." Carrier guaranteed the operation of that portion of the Moduline unit which it furnished. On cross Zwerling testified that, prior to the police build- ing job, Triangle never manufactured plenums for Carrier's Moduline units, and that "the only time that Triangle has ever fabricated plenums in relation to Carrier's Moduline unit was the Police Headquarters job." He also asserted on cross that his company has never installed any Carrier 37A model units at any place. John J. Flannery, for 17 years president of J. J. Flan- nery, Incorporated, a sheet metal contractor, was a witness for Respondent. His testimony may be summarized as fol- lows. Prior to this he was a sheet metal estimator of How- ard Platter Co. for 5 years. This latter position required him to prepare bids on heaters, ventilators, air-condition- mg, and kitchen exhausts. J. J. Flannery, Inc., subcon- tracts work for mechanical contractors in the field of sheet metal work, outlets, sound traps, and the work "necessary to take care of the air side in a high pressure or low pres- sure air-conditioning job." About 5 years ago J. J. Flannery, Inc., first "performed any work with regard to the Carrier moduline units" when it made 1300 or 1400 boxes for the Bache & Co. job in New York City but did not install them. Actually the boxes were fabricated for Alvord & Swift, the mechanical contractors on the Bache job. These boxes were "the plenum section from the top" on 37P units. Employees who were members of Local 28 drew the sketches and fabricated said boxes, In the past J. J. Flannery, Inc., has fabricated "similar" or "comparable" boxes "to this plenum." J. J. Flannery, Inc., also, about 2 or 3 years ago, made about 30 or 40 Carrier 37P plenums for Alvord & Swift as part of the duct system at the Presbyterian Hospital's Har- vest Pavilion. On this job Flannery, Inc., assembled at its shop the said plenums Carrier units which Flannery pur- chased without the plenums, and then installed the entire units with the plenums included therein at the j obsite. The plenums for these units on this job were fabricated and assembled and then the unit was installea at the jobsite by members of Local 28 employed by Flannery, Inc. Since said unit "was a new item and they [Carrier] were con- cerned about it [Carrier] checked it out and said it was fine." Flannery, Inc., received no complaints from Carrier as to the plenums on the hospitaljob or from anyone as to the Bache job or the hospital job. About a year and a half ago Flannery, Inc., received an order from Alvord & Swift to perform more of the same kind of plenum work at said Hospital's Vanderbilt Clinic. "It was all part of the same complex at Presbyterian Hospi- tal." This involved the same unit, i.e., Moduline 37P of Carrier, and "essentially the same" plenum fabricated for the Harvest Pavilion. Said plenum was assembled as part of the unit, the remainder, i.e., all but the plenum, having been supplied by Carver. Said units were assembled by members of Local 28 in Flannery's shop and then installed on the jobsite by members of Local 28. Said Vanderbilt job was tested and said test disclosed that "minor corrections as to.the air quantity" had to be made. After said correc- tions were completed "the system was ultimately ap- proved." The foregoing jobs were the only ones on which Flan- nery, Inc., worked which involved Carrier's Moduline units. On cross Flannery was unable -to say whether the fore- going Bache job involved Carrier units, and "it could have been some other unit." Further, on cross, he averred that Flannery, Inc., never made a box or a plenum for a Carrier 37A unit. Finally, on cross, Flannery stated that he wasn't sure how many units his company installed on the hospital's Harvest Pavilion job. Thomas Berrill, president of a sheet metal contractor, Lambert Sheet Metal Corp., testified for Respondent. He has been a dues-paying member of Local 28 since 1941. An abstract of his testimony follows: He is not familiar with the Carrier Moduline unit. Lambert Corp. did a job at Co- lumbia Presbyterian Hospital installing Buensod's "varia- ble volume system specified in that contract." Alternates to Carrier's Moduline units are those of Arastack and also of Buensod. The contract included a "reference to a Carver Moduline unit or an alternate." Lambert "bid the alter- nate," which was Buensod's. A variable volume system "is a system where you get through a thermostat a variable amount of air, or more air or less air as the occasion requires . . . it is done by a thermostat that controls the volume regulator." Carrier's Moduline units, Buensod's versa-trot system, and Aeronca's versa-trol system all perform that function. On a versa-trol system 'the plenum is attached to a "line diffuser, or a regular diffuser, and it is controlled automatically throughout the thermostat by air." In Berrill's opinion the system of Buensod is similar to Carrier's, in that Buensod's has a plenum, "To [him] it looks very similar," although he had, no experience in or knowledge in installing, a Carrier unit. In his opinion "the plenum of the Carrier system [is] similar to the plenum in the Buensod system"; and although he described one dif- ference, he was unable to state what other differences ex- isted between the two systems. Members of Local 28 have fabricated Lambert's plenum boxes, as Lambert has a col- lective-bargaining contract with said union. Lambert also has shipped variable volume units with plenum boxes to other jobs but did not install them. On these occasions the contractor on the job installed such units. However, such units lacked diffusers, as "we don't make diffusers." But he did not know where such contrac- tors obtained such diffusers for the variable volume units. On cross Berrill stated that Lambert never fabricated a plenum which "had anything to do with the Carrier 37A or 37P unit." Also on cross he asserted that Lambert is the exclusive manufacturer in New York City of Buensod's plenums. Finally, on cross, Berrill testified that the specifi- cations in the contract on the Columbia Hospital job "called for the Carrier Moduline Unit or an alternative." However, he did not know how an alternate to Carrier's unit was selected as the mechanical contractor, for whom Lambert was the sheet metal work subcontractor, made that decision. 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Another witness for Respondent was Jack McKeogh, manager of Essex Metal Works. A summary of his testimo- ny is set forth here. Essex performs sheet metal work, air- conditioning, and sheet metal fabrication installation. In 1970 Essex "performed work in regard to the 37P unit" of Carrier. It did so as a subcontractor to CDE Mechanical Contracting Company on the Staten Island Community College in New York. Essex furnished and installed ple- nums on this job. The "furnishing aspect consisted of "fa- bricating a sheet metal plenum, installing it on the module in the shop, and then delivering the module to the jobsite. The module was shipped to the Essex shop by CDE, which bought the same from someone whose name is not in the record. While the module was in the Essex shop Essex drew sketches "of the application of the plenum to module." See Resp. Exh. 10 for such a sketch or drawing. Then the ple- num was fabricated in the Essex shop by its employees. Said employees were members of Local 28. After this the plenums were assembled on the module in the shop. A Carrier representative came to the shop "to approve the type of fabrication [Essex was performing] on the unit." After this Local 28 field men installed the units at the j ob- site. CDE tested and approved the installed units. But Es- sex did not give a warranty or guarantee "involving the installation." However, it never received any complaints as to the operation of functioning of said installed units. On cross McKeogh asserted that the Staten Island job was the only occasion on which Essex "performed any work in relation to the Carrier Moduline units." Edward Stack, president of Local 28 since July 1974, was another witness for Respondent. An adequate condensa- tion of his testimony follows. He was a business agent for Local 28 for slightly more than 7 years prior to becoming its president. In July 1974, Contardi of Carrier requested Stack "to implement the agreement between Local 28 and Carrier . . . regarding the ..: rise of the Moduline unit in the City of New York," said agreement having been mailed about March 12 to President Pasquinucci of Local 28. Stack promised "to review it." When Contardi telephoned Stack a few days later, Stack informed him that Local 28 "remained consistent with its agreement." Said agreement was between Local 28 and the Sheet Metal Contractors Association as well as some independent sheet metal com- panies. At this point Respondent rested. C. General Counsel's Rebuttal Augustus Contardi's testimony as a rebuttal witness is briefly set forth here. He visited the completed Bache & Co. job at Pearl and Gold Streets in Manhattan, New York City, already mentioned above by other witnesses, on March 14, 1975. Carrier did not sell Moduline 37A or 37P units for said Bache & Co. job. Further there are no varia- ble volume units on said job, regardless of whether Carrier or anyone else manufactured them. At this point both parties rested except for the right to introduce further evidence on an incident which occurred at a job during the hearing. The case was continued for this limited purpose to April 15, 1975. D. The Resumed Hearing on April 15, 1975 At the hearing on April 15, 1975, the parties entered into the following written stipulation. (G.C. Exh. 20.) Immedi- ately after the meeting of the Joint Adjustment Board on March 7, 1975, Morris Lipka, president of General Sheet Metal Works, Inc., instructed members of Local 28 to cease, and they did cease, installing Carrier Moduline units on the Babies Hospital Addition job. On or about March 17, 1975, Lipka met with President Stack of Local 28, and advised Stack that General Sheet would pay $2 , 153.60 to the Local 28 sick dues ' relief fund as set out in said Local's proposed resolution as found in General Counsel's Exhibit 2, appendix BB. (Said proposed resolution accused General Sheet of "permitting work covered by our Agreement- fabrication of plenums-involving the Carrier Dual Modu- line unit for installation at the Presbyterian Medical Cen- ter, Babies Hospital . . . to be performed by persons who are not within the bargaining unit covered by our agree- ment . . . Resolved that General Sheet . . . make payment of the sum of $2153.60 to the Local 28 sick dues relief fund, representing the loss of hours caused by General 's said vio- lation . . . 160 hours at the rate of $13.46 per hour.") Said stipulation further provides that Stack told Lipka that said charges would be settled ; that General Sheet paid said $2,153.60 about March 20 and resumed installation of said units ; and that about March 21 Stack wrote to Gener- al Sheet a letter confirming the terms of the above settle- ment. Said letter is attached to the stipulation. In addition, Augustus Contardi testified substantially as follows for Carrier, the Charging Party herein. About March 14, 1975, Ed Simek of Colonial Mechanical, accom- panied by Morris Lipka of General Sheet, met with Con- tardi to discuss the fact that General Sheet had stopped working on the Babies Hospital job. Lipka stated he had stopped the working on said job because General Sheet had been brought up on charges and was subject to a fine. Simek stated he "could not tolerate the pressure . " Conse- quently, Contardi stated to Lipka to settle the charges with Local 28 and Carrier would reimburse General Sheet for the amount assessed by Local 28 on such charges. Carrier did later so reimburse General Sheet. (Charging Party's Exh. 1 and 2 for General Sheet's request for such reim- bursement.) IV. CONCLUDING FINDINGS AND DISCUSSION In arriving at the findings set forth below I have ob- served the following applicable principles of law: (a) the burden of proof is upon the General Counsel to establish his case, and this obligation remains with him during the entire hearing. A corrollary is that no burden is imposed upon Respondent to disprove any of the allegations plead- ed in the complaint. (b) Failure of the Respondent to es- tablish any one or more of its defenses does not amount to affirmative evidence aiding the General Counsel in proving his case. (c) As hereafter recited, I have not credited Respondent's evidence on some aspects of the case. But this does not contribute to the General Counsel's burden of proving his case. N.L.R.B. v. Harry F. Berggren & Sons, Inc., 406 F.2d 239, 246 (C.A. 9, 1969); Ri-Del Tool Mfg. SHEET METAL WORKERS LOCAL 28 739 Co., Inc., 199 NLRB 969, 973 (1972). "The mere disbelief of testimony establishes nothing." N.L.R.B. v. Joseph An- tell, Inc., 358 F.2d, 880, 883 (C.A. 1, 1966). A. The Collective-Bargaining Agreements Between Local 28 and Three Boro and Sheet Metal Air Conditioning Contractors Association I find that Three Boro and the association each has a collective-bargaining agreement with Local 28 which con- tains a no-subcontracting clause which contravenes Sec- tion 8(e) of the Act. This is because I find not only that said clause (G.C. Exh. 2. app. E, p.40) on its face contra- venes Section 8(e) of the Act, but also because Pasquinucci as president of Local 28 told Contardi of Carrier that Car- rier could not bring,its Moduline unit into the New York City area until they had some kind of understanding., Even after a committee of Local 28 unanimously recom- mended that Carrier's Moduline unit be accepted in- the New York area because such units would create more work for members of Local 28, such recommendation was turned down by both the executive board and the mem- bership of Local 28. As Pasquinucci credibly testified on this phase of the case, the executive board of Local 28 was not willing to modify the-collective-bargaining agreements of Local 28 in relation to the fabrication of plenums. In this connection I find, crediting Contardi, that Presi- dent Farrell of Local 28 stated that Carrier's units manu- factured in Tyler, Texas, "could not come into New York" unless the plenum section thereof was manufactured in New York in a shop which had a collective-bargaining agreement with Local 28. And I also find that Carrier was also "brought up on charges within" the Mechanical Con- tractors Association, to which it belonged. Later still Far- rell objected to Carrier's Moduhne unit being installed on the New York police office building job because the ple- num for such unit was being fabricated in Tyler, Texas. Also, Dan Pasquinucci, as president of Local 28, admit- ted to Contardi that, on the Van Etten Drug Treatment Center job he, Pasquinucci, had refused to let members of Local 28 "sketch the job" and "would not permit this unit [i.e., Carrier's Moduline'unit] to come into New,York." Yet the owner of said building had decided to install Carrier's Moduline unit at said treatment center and his architect had so provided in the specifications submitted' to contrac- tors who bid on it. Three Boro was the air-conditioning subcontractor on said job, but its sketcher, Johansmeyer, a member of Local 28, erased from the blueprints the use of Carrier Moduline units. When Contardi'complained of this to Pasquinucci the latter stated that he would not permit this unit to come into New York. I find no right of control by Three Boro over the type of unit or its composition to be used on this Van Etten job. Another instance of a violation of Section 8(e) of the Act is the Babies Addition to the Columbia Presbyterian Hos- pital. Here again I find no right of control in the subcon- tractor, General Sheet Metal, Inc., so that Local 28, with whom it had a contract as a member of the association, had no lawful right to insist that General fabricate the ple- nums, especially since the building owner's specifications called for an installation of Carrier's Moduline units. And I further find, as contended by the General Counsel, that such specifications "contemplated that the work of fabri- cating such plenums would not be done by sheet metal contractors." Also, I find that the charges filed by Local 28 against General with the Joint Adjustment Board cannot be up- held by Section 8(e) of the Act, since the provisions in the collective-bargaining contract between Local 28 and the Association forbidding subcontracts allowing plenums to be fabricated outside of New York are not lawful: Cf. Con- nell Construction Co., Inc. v. Plumbers and Steamfitters Lo- cal Union No. 100, 421 U.S. 616 (1975). In said Connell case, the Supreme Court held, "We conclude that Section 8(e) does not allow this type of agreement." In this connection I find that said clauses in the con- tracts of Local 28 were not to preserve work for, its mem- bers but their tactical object was to obtain benefits, i.e., fabricating plenums, for members of Local 28 which were being enjoyed by Carrier's employees in Tyler, Texas. See National Woodwork Manufacturers Association et al v. N.L.R.B., 386 U.S. 612, 644,,645 (1967). Moreover, I find that the Carrier Moduline unit is a new and different product and that fabrication and installation of these special units is not work traditionally and histori- cally performed by on-site sheet metal workers belonging to Local 28. And I further find that Local 28, by applying the aforesaid work preservation clause, "was trying to ac- quire work performed by employees" of Carrier in Tyler, Texas. See Associated General Contractors of California, Inc. v. N.L.R.B., 514 F.2d 433 (C.A. 9, 1975). And I find that Local 28 used coercion to attain said objective, said coer- cion being not only the refusal of its members to install said units but also the filing of charges by Local 28- against employers signatory to contracts with it. One of such charges resulted in one employer's, General Sheet, paying $2,153.60 to the Local 28 sick dues relief fund. As the Ninth Circuit Court of Appeals pointed out in the above AGC case, "Inevitably, no subcontractor who is bound by a provision of the type involved-here will install prefabricated [products] unless he has an agreement that he will be reimbursed for assessments and other sanctions levied against him. This practice will influence the business decisions of hospital builders." 514 F.2d at 439. This lan- guage is equally applicable to the hospital builders in the instant case, and I so find. And I further find that the construction industry proviso to Section 8(e) , of :the Act is not applicable because "the disputed work;" i.e., the ple- nums, "was done off the jobsite at the plant of, [Carrier] in another State." See 514 F.2d at 439. In my opinion, I con- sider, distinguishable and, therefore, not requiring a con- trary conclusion, the recent case of United Brotherhood of Carpenters & Joiners of America, Local 112, AFL-CIO, and Its Agent, Southwest Building Trades Council (Summit Val- ley Industries, Inc.), 217 NLRB No. 129 (1975). Crediting the General Counsel's evidence, and not cred- iting Respondent's evidence to the extent it is not conso- nant with the General Counsel's, I find that pursuant to an agreement between Local 28 and Carrier applicable to the police office building job, the-work of fabricating plenums for Carrier's Moduline units for said job was given to Tri- angle, which employed members of Local 28. But Triangle 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not prepare said plenums properly, so that Carrier, having guaranteed the entire unit, suffered about $10,000 in additional costs to render the units properly workable. As noted above, I have found the pertinent clause in the Local 28 collective-bargaining contract violative of Section 8(e) of the Act. However, assuming such clause not unlaw- ful as worded, I find that under the circumstances, i.e., the inability of Triangle and other subcontractors such as Es- sex Metal Works, to fabricate a workable plenum demon- strates that Carrier was unable to obtain any orders for Moduline units if plenums therefore were to be fabricated separately by others than Carrier. Indeed a Local 28 com- mittee so found in a report it submitted to said union. (G.C. Exh. 2, app. I.) And the testimony of Larry Sturgis, which I credit, concurs in said committee's report. Further, I find that the Local 28 executive board on May 30.and June 5, 1973 (G.C. Exh. 6), voted that "no allow- ance in [collective-bargaining agreements] be made to al- low the dual Moduline Mixing Box in the New York City area." This also depicts coercion on the part of Local 28, assuming that coercion must be shown to demonstrate that the subcontract clause is invalid under Section 8(e) of the Act. Of course this occurred more than 6 months before the late charge against Local 28 was filed, so that it cannot be found to constitute an unfair labor practice. But it dem- onstrates that Local 28 was doing more than merely pre- serving work, as it shows that it was compelling Carrier, a Tyler, Texas, manufacturer, to produce its Moduline units without a plenum. It is also of some, but not conclusive, significance that the entire Moduline unit, including its plenum, is not only manufactured in Tyler, Texas, but also that several patents cover the separate parts which compose the unit. It would seem that Carrier's right to fabricate the entire unit is as- sured by said patents, and that the efforts of Local 28 to cause Carrier to surrender such patent protection to others with whom Local 28 has a collective-bargaining agreement is not a right conferred upon Local 28 by the National Labor Relations Act. Cf. the Supreme Court's decision in the Connell Construction Company case, supra where it was held that the said labor relations Act does not authorize unions to violate the Federal antitrust laws. Further, I find that, on the evidence which I credit, some of which is set out in the Local 28 committee's report, Lo- cal 28 members will not lose any work if Carrier continues to manufacture the plenums for its Moduline units. And the record fails to disclose that Local 28 members have traditionally or historically fabricated these Carrier ple- nums over an extended period of time in the past. The two times when Local 28 members produced Carrier's plenum not only fail to rise to the stature of tradition or history but also arose only because Carrier consented thereto as an effort to settle the dispute with Local 28. B. The 8(b)(4) Violations 1. As to Section 8(b)(4)(i)(B) This subsection, so far as material herein, forbids a labor organization from inducing an employee to refuse to per- form services for his employer where an object thereof is to force or require any person to cease doing business with any other person. I find that the Respondent has violated this subsection. In this connection I find, crediting Contardi, that Dan Pasquinucci, the president of Local 28, admitted to Contar- di in October, 1973, that Dan "had refused to let [Local 28 members] sketch the [Van Etten] job" and that Dan "will not permit this [Moduline] unit to come to New York." I find that Pasquinucci's conduct constitutes inducement or encouragement of employees where an object thereof is to have contractors refuse to do business with Carrier, i.e., contractors would be unable to use Carrier's Moduline unit. And I further find that this violates Section 8(b)(4)(i)(B) of the Act. One of the employees so induced was Ted Johansmeyer, a member of Local 28 and a sketch- er for Three Boro on the Van Etten Drug Treatment Cen- ter job. Further, I find that the executive board of Local 28 made a decision to refuse Local 28 members the right to install Carrier's Moduline units (G.C. Exh. 5) and that this decision was adopted by the membership of Local 28. This amounts to inducement or encouragement, and I so find, and I further find that an object thereof is to force or re- quire contractors not to do business with Carrier by pur- chasing or using Carrier's Moduline units. 2. As to Section 8(b)(4)(ii)(B) In essence this part of the Act prohibits a union from threatening, coercing, or restraining any employer where an object thereof is to force or require any employer to cease doing business with any other employer. I find that Respondent did engage in conduct, set forth below, which violated this subsection of the Act. a. Crediting Contardi, and not crediting Dan Pasqui- nucci, I find that the latter informed Contardi in October 1973, that Pasquinucci had refused to allow Local 28 mem- bers to sketch the Van Etten Drug Treatment Center job and that he would not permit Carrier Moduline units to come into New York. This, I find, constitutes coercion, an object of which is to force or require Three Boro to cease doing business with Carrier. The architect and the engineer on this job had decided "to put Moduline on the job," and Three Boro as the sheet metal contractor was to install Modulme units. b. In November 1973, Dan Pasquinucci told Contardi that Dan insisted that he "could not permit the [Moduline] unit to come in" to New York. This, too, contravenes the subsection of the Act which is discussed at this point. c. In July 1974, President Stack of Local 28 informed Contardi that said Union "was going to insist that [Carrier] go along with the agreement as written," i.e., "Local 28's agreement with the Association." It is my opinion, and I find, that Stack's statement is coercive and is intended to force Carrier to change its methods of manufacturing Mo- duhne units by not making plenums for its Moduline units. It is also coercive as to Three Boro and other Employers in the Association. I find that such statement contravenes the subsection of the Act here under consideration. d. Finally, I find that it is not necessary that a complete cessation of business dealings occur to find a violation. It is SHEET METAL WORKERS LOCAL 28 741 sufficient that Respondent's conduct causes Carrier to alter its Moduline units by delivering them without plenums. Thus, I find that Respondent interfered with Carrier's pro- cess of delivering complete Moduline units and prevented contractors doing business with Carrier from obtaining such complete units. Cf Retail Clerks Union, Local 770, AFL-CIO, and Retail Clerks International Association AFL-CIO, 145 NLRB 307, 311-312 (1963). And see Retail Clerks Union, Local 1428, 155 NLRB 656, 659-660 (1965); Local Union No. 26, Sheet Metal Workers Association, AFL-CIO, and Sheet Metal Workers International Associa- tion, AFL-CIO, 168 NLRB 893, 895, 899-900 (1967). V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of Respondent set forth in section IV, above, found to constitute unfair labor practices, occurring in connection with the operations of Carrier described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices it will be recommended that it cease and desist therefrom and that it take certain affirmative action, described below, designed to effectuate the policies of the Act. On the record as unfolded at the hearing, I am unable to find that Respondent has demonstrated any general hostili- ty to the Act. Accordingly I find that an Order prohibiting Respondent from committing the conduct herein found to contravene Section 8(e) and 8(b)(4)(1) and (ii)(B) of the Act will effectuate the policies of the Act, and that an Order broader in scope is not warranted . Cf. the Board's Order in Sheet Metal Workers International Association Local No. 150, 170 NLRB 772, 774 ( 1968). Upon the basis of the foregoing findings of fact and the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. Respondent Local 28 is a labor organization within the meaning of Section 2(5) of the Act. 2. Carrier and the other employers involved in this case are employers within the meaning of Section 2(2) of the Act. Carrier is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By its conduct in enforcing articles 4(b) and 16 of the collective-bargaining contract between Local 28 and Three Boro and similar clauses in the collective-bargaining con- tract between Local 28 and the Association, Local 28 has engaged in unfair labor practices within the meaning of Section 8(e) of the Act. 4. By coercively refusing to allow employers with whom Local 28 has collective-bargaining contracts in the New York City area to install Moduline units unless said units lacked Carrier's plenums, Local 28 engaged in unfair labor practices within the meaning of Section 8(b)(ii)(B) of the Act. 5. By Pasquinucci's refusing to allow Local 28 members to sketch the Van Etten job and his not permitting Carrier's Moduline unit to come to New York City, and by the Local 28 executive board's decision to refuse to allow said units to be installed, in the New York City area, said decision being adopted by the membership of said Local 28, Respondent engaged in unfair labor practices within the meaning of Section 8(b)(i)(B) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. [Recommended Order omitted from publication.]