Local Union No. 418, Sheet Metal Workers

300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 418, Sheet Metal Workers' Interna- tional Association, AFL-CIO and Larry Asbury and Young Plumbing & Supply, Inc. Cases 9-CB- 2739, 9-CB-2767-2, and 9-CC-788-2 December 16, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS PENELLO AND WALTHER On November 14, 1975, Administrative Law Judge Josephine H. Klein issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Young Plumb- ing & Supply, Inc.,' one of the Charging Parties, filed cross-exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. We find, in agreement with the Administrative Law Judge and for the reasons stated by her, that Respondent Local Union 418 violated Section 8(b)(4)(ii)(B) of the Act by threatening Huntington Federal Savings and Loan Association with economic pressure for the object of forcing or requiring the Association to cease doing business with Charging Party Young. However, with respect to the Adminis- trative Law Judge's dismissal of the 8(b)(3) and (1)(A) allegations of the complaint, we find merit in the exceptions filed by the General Counsel and Charg- ing Party Young. The record. reveals the following sequence of events: Young-a Huntington, West Virginia, plumbing, heating, and air-conditioning contractor-main- tained collective-bargaining relationships with both Respondent and the Plumbers and Pipefitters Union, Local 521, which unions represented Young's sheet metal and plumber employees, respectively. On a particular project (Holiday Inn) in mid-1972, Young assigned the installation of certain air-conditioning and heating equipment to its plumber employees. Respondent, asserting that such work should be performed by a composite crew (sheet metal workers and plumbers), filed a grievance pursuant to the grievance procedures of its then current contract with Young. That grievance was eventually heard by a panel of the Local Joint Adjustment Board which consisted of a representative, each, from Respondent Union and the local sheet metal employers. Young fully partici- pated in that proceeding, but participation was denied to the Plumbers Union. The Local Board upheld Respondent's position and directed Young to pay $2,040 damages to a local joint apprenticeship fund. On June 25, 1973, the sheet metal industry's National Joint Adjustment Board (hereinafter the Joint Board) rejected Young's appeal and affirmed the assessment. Young refused to pay, apparently on the ground that the subject grievance did not consti- tute a dispute between Young and Respondent appropriate for resolution by contractual procedures, but rather was a jurisdictional dispute which had to be resolved between the two unions involved. A provision of Respondent Union's contract with Young gave either party the right to cancel the agreement if the other party failed to effectuate an award of the Joint Board within 30 days of notice thereof. In accord therewith, Respondent canceled the contract effective August 3, 1973. Immediately thereafter Young's sheet metal workers failed to report for work and Respondent refused Young's request for sheet metal workers to be referred to it for employment-which requests had been honored prior to the contract cancellation. On August 16, 1973, Young filed 8(bX4)(D) charges against Respondent and a notice of a 10(k) hearing issued thereafter. Commencing on August 23, 1973, Respondent caused Young to be picketed for failure to maintain a collective-bargaining agreement. In compliance with a 1((1) injunction issued by the U.S. District Court for the Southern District of West Virginia on October 8, 1973, the picketing ceased and Respondent resumed its practice of honoring Young's requests for referrals of sheet metal workers. On April 9, 1974, the Board issued its Decision and Order in the 10(k) case 2 wherein it found that the contractual grievance procedure previously invoked by Respondent was not an effective method for voluntary resolution of the dispute because all parties were not bound thereto and the Plumbers Union was denied participation therein; but, nevertheless, quashed the notice of hearing on the ground that all parties agreed to be bound by determinations of the new Impartial Jurisdictional Disputes Board (IJDB).3 i Referred to hereinafter as Young or the Employer. 2 Sheet Metal Workers International Association, AFL-CIO and Local Union No 418, Sheet Metal Workers International Association, AFL-CIO ( Young Plumbing & Supply, Inc), 209 NLRB 1177 (1974). 227 NLRB No. 30 3 In July 1974, the Employer submitted this jurisdictional dispute to the IJDB which ultimately, in April 1975, declined to rule on it-holding that inasmuch as the subject Holiday Inn installation work had been completed LOCAL UNION NO. 418, SHEET METAL WORKERS 301 In view of the quashing of the notice of hearing, the 10(1) injunction was dissolved on May 14, 1974. Thereafter, Respondent- once again picketed Young and refused to honor its requests for employee referrals. Respondent's collective-bargaining contracts with other Huntington area contractors employing sheet metal workers were due to expire May 31, 1974. In the 3 months prior thereto, Respondent participated in contract renewal negotiations with representatives of the Huntington Area Sheet Metal Contractors' Association,4 during the course of which Respondent took the firm position that it would not negotiate or execute a contract with Young because of the latter's failure to pay the $2,040 in damages assessed against it by the Joint Board. Then, on or about June 1, 1974, Respondent and the-other contractors executed new collective-bargaining agreements, all containing iden- tical terms. On June 4, 1974, Respondent offered to sign the same contract with Young-which offer was, readily accepted. But, once again, Respondent added the precondition that the $2,040 assessment must first be paid. During the latter part of May 1974, Respondent warned Charging Party Asbury, a member of _ Re- spondent Union then employed by Young, that he should not work for Young any longer because it had no union contract. Subsequently, on June 4, 1974, Respondent's business manager discovered Asbury working, as a Young employee, on a construction job at the Huntington Federal Savings and Loan Associ- ation building. As a result of this information, the business manager caused Asbury to be brought up on intraunion charges, which alleged that he violated the Union's constitution by working for a nonunion contractor. After a hearing before Respondent's trial committee on June 12, 1974, Asbury was found guilty as charged and fined $500, of which $450 was suspended, but .would become due if Asbury was again found guilty of a constitutional violation. Asbury failed to pay the $50 net fine. As Respon- dent's constitution provided that dues cannot be accepted until outstanding fines are paid, it refused the dues that Asbury tendered and, consequently, his union membership was terminated for nonpayment thereof. Thereafter, on October 1, 1974, Young filed new 8(b)(4)(D) charges against Respondent. After the holding of a 10(k) hearing, the Board issued its Decision and Determination of Disputes in which it: (1) found, inter alia, that Respondent's pursuit of money damages from Young, its cancellation of the contract, and its refusal to refer sheet metal workers to Young constituted coercive conduct sufficient to give reasonable cause to believe that Respondent violated Section 8(b)(4)(D); and (2) awarded the disputed work to employees represented by the Plumbers. For reasons not relevant to the instant case, the Board also concluded that there was no longer any agreed-upon method of dispute settlement among the parties. In substance, the complaint herein alleges, inter alia, that Respondent: (1) violated Section 8(b)(3) by refusing to execute the collective-bargaining agree- ment it had otherwise agreed to with Young unless the latter paid the $2,040 Joint Board assessment; and (2) in violation of-Section 8(b)(1)(A) restrained and coerced Young's employees in the exercise of their Section 7 rights ' by fining and disciplining Charging Party Asbury for refusing to.participate in the work stoppage Respondent had instigated against Young. A. Section 8(b)(3)-The Alleged Refusal To, Bargain The Administrative Law Judge found that the conduct of Respondent alleged to constitute the refusal to bargain herein was clearly part and parcel of a bona fide jurisdictional dispute, and that, therefore, the 8(b)(3) allegation must be dismissed in conformance with the Board's holding that in work assignment disputes Section 8(bX4)(D) and Section 10(k) dictate the exclusive procedure to be followed. In so concluding, the Administrative Law Judge relied on J. L. Allen Co., 199 NLRB 675 (1972), and Cornell-Leach, Gibson Project, a Sole Proprietorship, 212 NLRB 495 (1974), wherein 8(a)(1), (3), and (5), and 8(b)(1XA) and (3) allegations were dismissed on that basis. Moreover, the Administrative Law Judge further indicated that she regards Respondent's duty to bargain in good, faith as being suspended for as long as Young refused to pay the Joint Board assessment because such refusal constituted, in her view, a dishonoring of an obligation which arose under the prior contract between the parties. We disagree with the Administrative Law Judge on both counts. there was no longer any dispute between the two unions and, accordingly, no further action by the IJDB was required. 4 It appears that the Association , of which Young was a member, followed the practice of negotiating on behalf of its members with Respondent, but the product of those negotiations was usually embodied in a series of separate, though uniform, contracts between Respondent and the individual contractors so represented. 5 Local Union No 418, Sheet Metal Workers International Association, AFL-CIO (Young Plumbing & Supply, Inc.), 224 NLRB 993 (1976). 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD First, with reference to -the context and rationale of the Board's J. L. Allen and Cornell-Leach decisions,6 we do not regard the litigated issues in, this case as being, in .a meaningful sense, part and parcel of the parties' work assignment dispute. For, the 8(b)(3) allegation of the complaint is susceptible to determi- nation wholly apart from, and without reference to, the source of the initial dispute between the parties. Even assuming, arguendo, a situation in which the Board's award of the disputed work was to employees represented by Respondent,7 we would nevertheless conclude that it was unlawful for Respondent to condition -execution of the agreed-upon contract with Young on the latter's payment of the $2,040 assess- ment. - Secondly, contrary to the Administrative Law Judge, we find that Respondent's- statutory bargain- ing duty . was not ,modified in any way by its continuing controversy with Young over the payment of the assessment. -TheAdministrative' Law Judge characterized Young's failure to pay the assessment as misconduct going to the heart of the bargaining relationship which was sufficient in severity to justify the Union's refusal to bargain; and cited in support thereof the Board's decision in The Massillon Publish- ing Company, 212 NLRB 869 (1974). But, in that case the Board merely observed that a union's decision to call a strike might well-justify-an employer's refusal to continue . applying the_ terms -of the parties' expired collective-bargaining-agreement. More to the point-is Williams Enterprises,, Inc:, 212 NLRB 880 (1974), wherein it was held that, at least in the absence of a breach-of-contract strike, a contract breach by the union there involved was not a defense- to the employer's ,otherwise unlawful refusal to bargain. Therefore, even accepting Respondent's, assertion that Young's failure to pay the Joint' Board assess- ment amounted to a contractual breach, such breach falls far short of the magnitude which would be required to effect a suspension of Respondent's bargaining duty with respect to the negotiation and execution of the collective-bargaining agreement. In our view, the controversy between- the parties concerning Young's failure to pay the aforemen- tioned assessment was judicially resolvable and cannot be regarded as justification for either a refusal to execute a contract whose terms had been accepted by all concerned, or a generalized refusal to engage in any negotiations at all. To hold otherwise would do violence to the Act's policy of encouraging collective 6 Chairman Murphy and Member Walther did not participate in these cases and do not, at this time, either adopt or reject the policy set forth by the Board majority therein. Member Penello did not participate in Cornell-Leach and adheres to the views expressed inhis J. L. Allen dissent. T In fact, such work was awarded to employees represented by the Plumbers. See fn. 5, supra bargaining, as it would make collective bargaining unduly vulnerable -to strikes and- other disruptive forms of self-help ,directed to issues better resolved through the judicial, process. Accordingly, we con- clude that Respondent's action is refusing to execute the collective-bargaining agreement with Young constituted a refusal to bargain-within the meaning of Section 8(bX3) of the Act. B. 'Section 8(b)(1)(A)-The Fining and ` Disciplining of Asbury As established by the record, and in agreement with the Administrative Law Judge, we find that: (1) Charging Party Asbury was brought up on intraunion charges, disciplined, and fined as -a result of his having worked for Young on June 4, 1974, in defiance of Respondent's no-contract/no-work policy; (2) Respondent and Young, as of June 4, 1974, were in full agreement on the terms for a new contract and, therefore, the only bar-to its execution was Respon- dent's refusal to -sign unless Young paid the Joint Board assessment; and (3) on all relevant dates prior thereto Respondent refused to negotiate with Young for the same reason. However, unlike the Administra- tive Law Judge, we have found, supra, that Respon- dent's refusals to negotiate and execute the agreed- upon contract were violative of Section 8(b)(3). In previous cases we have regularly found that unions violate Section 8(b)(l)(A) when they bring disciplinary charges against 'members who have' refused to participate in conduct found by the Board to be-unlawful. For, despite the proviso to Section 8(b)(1XA), which confers upon labor organizations the right'to prescribe their own rules with -respect to the acquisition or retention of membership, an unfair labor practice is', committed if disciplinary action is taken against members for the purpose of enforcing union rules which are violative of the Act or public policy* 8 ' Ac rdingly,' we conclude that the actions taken by Respondent in fining and disciplining Charging Party Asbury were palit and parcel of its unlawful refusal to bargain and co Instituted restraint and coercion not sanctioned by the proviso to Section 8(b)(1)(A), because the fine, -the discipline, and the charge imposed against him did not stem from his violation of lawful unio' rules dealing purely with internal union matters,' but, rather, sought to enforce conduct 8 Local 1104, Communications Workers ofAmerica, AFL-CIO (New York Telephone Company), 211 NLRB 114 (1974); International Alliance of Theatrical Stage Employees (RKO General, Inc., WOR-TV Division), 223 NLRB 959 (1976). LOCAL- UNION NO. -418, SHEET METAL WORKERS 303 violative of the Acts We fmd, therefore, that Respon- dent has also violated Section 8(b)(1)(A) of the Act. AMENDED CONCLUSIONS OF LAW We hereby affirm the Administrative Law Judge's Conclusions of Law, as modified below: 1. Substitute the following for Conclusion of Law 4: "4. By refusing, on or about June 4, 1974, to execute the collective-bargaining agreement agreed to between the -parties unless Young Plumbing- & Supply, Inc., paid the assessment levied against it by the Joint Board, Respondent has -engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(3) of the Act." 2. Insert the following paragraphs as Conclusions of Law 5 and 6: "5. By fining and otherwise disciplining its mem- ber Larry Asbury for his refusal to participate in union conduct violative of Section 8(b)(3) of the Act, Respondent restrained and coerced Asbury and other members in the exercise of rights guaranteed them by Section 7 of the Act and, thereby, violated Section 8(b)(1)(A)• "6. The aforesaid . unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act." THE REMEDY Having found that the Respondent engaged in unfair= labor practices within the meaning of Section 8(b)(l)(A), (b)(3), and (b)(4)(ii)(B) of the Act, we shall order that it cease and desist therefrom, take certain affirmative action, and post the appropriate notice. Since it has been found that Respondent's action in fining and disciplining its member Larry Asbury was unlawful,, Respondent will be required to rescind such fine and, disciplinary action, and refund any portion of the fine that was paid, with interest at 6 percent per annum. Further, we have found that Asbury's failure to pay the fine caused Respondent to refuse his tender of union dues and, subsequently-because of the nonpayment of such dues-expel him from union membership. Therefore, we shall require Respondent to reinstate Asbury, upon his request, without the payment of back dues' for the period of his expulsion, except for any ' portion of the dues shown at the compliance stage to be regularly allocable to the cost of insurance premiums, pension contributions, and other welfare benefits accuring to Respondent's members, to the extent they can be reinstated retroactively to the date of his expulsion. To the extent that benefits cannot be made effective retroac- tively for Asbury, Respondent shall be required to reimburse him, with interest thereon at 6 percent per annum, for any expenses or losses suffered: because of the absence of such benefits, less the portion of dues which would have been allocable to the payment of premiums for, or other purchase of, such benefits. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended,- the National Labor Relations Board hereby orders that the Respondent, Local Union No. 418, Sheet Metal Workers' Interna- tional-'Association, AFL-CIO, Huntington, West Virginia, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Threatening, coercing, or restraining Hunting- ton Federal Savings and Loan Association or any other person engaged in commerce or in an industry affecting commerce where an object thereof is to force or require any employer or person to cease doing business with Young Plumbing & Supply, Inc. (b) Refusing to bargain collectively in good faith with Young Plumbing & Supply, Inc., as to, wages, hours, and other terms and -conditions of employ- ment, by refusing to sign the collective-bargaining agreement upon which the parties have agreed or from, engaging in any like or related conduct in derogation of its statutory duty to bargain. (c) - Maintaining its ban against - union: members accepting employmentt with Young Plumbing & Supply, Inc. (d) Restraining or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act by fining or otherwise disciplining Larry Asbury or any other member for refusing to comply with, or participate in, a union ban against the acceptance of employment with Young Plumbing & Supply, Inc., when such ban is established for the purpose of accomplishing an objective unlawful under the Act. (e) Seeking to collect or collecting any fines from its members levied against them for engaging in the conduct set out in paragraph (d), above. (f) In any like or, related manner restraining or coercing employees in the exercise of rights guaran- teed by Section 7 of the Act. 2. Take the following affirmative action which is designed to effectuate the purposes and policies of the Act: s Truck Drivers, Chauffeurs and Helpers Local Union No. 100, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers ofAmenca (Moraine Materials Company), 214 NLRB 1094 (1974); Communications Workers of America, - AFL-CIO, Local 1170 (Rochester Telephone Corporation), 194 NLRB 872 (1972), enfd. 474 F.2d 778 (CA. 2, 1972). 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) On request by Young Plumbing & Supply, Inc., execute the contract with it that was agreed upon on or about June 4, 1974. (b) On request, bargain collectively with Young Plumbing & Supply, Inc., and embody any conse- quent understanding in a signed contract. (c) Cancel, withdraw, and rescind the ban against , its members accepting jobs offered them by Young Plumbing & Supply, Inc. (d) Rescind all fines and disciplinary action taken against Larry Asbury and refund to him fines collected, if any, pursuant to such action with interest thereon at 6 percent per annum. (e) Upon application, offer Larry Asbury immedi- ate and full reinstatement to membership in Respon- dent Union without prejudice to any rights, privileg- es, and benefits to which he would have been entitled as of and since the date of his expulsion from membership, and reimburse him, together with 6- percent interest per annum, for any losses or expenses suffered because of the absence of certain benefits to which he would have been entitled during the period of his expulsion, in accordance with the section of this Decision entitled "The Remedy." (f) Expunge from its records any documents or entries purporting to show any fines levied against its member Larry Asbury for engaging in the conduct set out in paragraph 1(d), above. (g) Post at its office and meeting hall copies of the attached notice marked "Appendix." 10 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, inctuding all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (h) Furnish to the said Regional Director sufficient signed copies of the aforesaid notice for posting at the premises of Huntington Federal Savings arra Loan Association, if this person is willing. (i) Notify the Regional Director nor Region 9, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 10 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten to picket Huntington Federal Savings and Loan Association or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require Huntington Federal Savings and Loan Association or any other employer or person to cease doing business with Young Plumbing & Supply, Inc. WE WILL NOT refuse to bargain collectively in good faith with Young Plumbing & Supply, Inc., by refusing to sign the collective-bargaining agreement to which we agreed on or about June 4, 1974, and we will not engage in any like or related conduct in derogation of our statutory duty to bargain. WE WILL NOT fine, cite, or otherwise discipline our members for refusing to comply with our ban against accepting employment with Young Plumbing & Supply, Inc., where such ban is established in order to accomplish an objective unlawful under the National Labor Relations Act. WE WILL NOT in any like or related manner restrain or coerce our members in the exercise of their rights under the National Labor Relations Act. WE WILL, if requested by Young Plumbing & Supply, Inc., execute the contract on which we reached agreement on or about June 4, 1974. WE WILL, notify Larry Asbury that we have canceled the fine we levied against him and will expunge from our records any documents or entries purporting to show any fine delinquencies with regard to fines levied for engaging in the aforesaid conduct. WE WILL offer Larry Asbury, upon application, immediate and full reinstatement to membership in our organization without prejudice to any rights or privileges to which he may be entitled as of, and since the date of, his expulsion from membership, and reimburse him with 6-percent interest thereon for any losses or expenses suffered because of the absence of certain benefits during the period of his expulsion. LOCAL UNION No. 418, SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION, AFL-CIO LOCAL UNION NO. 418, SHEET METAL WORKERS 305 DECISION STATEMENT OF THE CASE B. At all times material herein Respondent has been a labor organization within the meaning of Section 2(5) of the Act. JOSEPHINE H. Ki,EIN,-Administrative Law Judge: Pursu- ant to a charge filed on August 16, 1974, byLarryAsbury, a complaint 'was issued against Local Union No. 418, Sheet Metal Workers' International Association, AFL-CIO (Re- spondent) on' September 30, 1974 (Case 9-CB-2739), alleging violation of Section 8(b)(1)(A) of the Act' by Respondent's having fined and disciplined Asbury,, a member of Respondent, for working during an "unlawful" strike. Pursuant to charges` filed$y Young Plumbing & Supply, Inc. (Young) on October 1, 1974, a consolidated complaint was issued against Respondent alleging that Respondent violated Section' 8(b)(4)(B) of the Act by threatening and coercing persons engaged in commerce to induce them not to deal with' Young (Case 9-CC-788-2) and that Respondent had violated Section 8(b)(3) by unlawfully refusing to execute a collective-bargaining agreement with Young, the terms of which contract had been agreed upon (Case 9-CB-2767-2). The three cases were consolidated for hearing and were heard before me in Huntington, West Virginia, on August 18, 1974. All parties were represented and were afforded full opportunity to present oral and written evidence and to examine and cross-examine witnesses. The parties waived oral argument and posthearing briefs -have been filed on behalf of the General Counsel and Respondent. Upon the entire record, together with careful observation of the witnesses and consideration of the briefs, I make the following: FINDINGS OF FACT I. PRELIMINARY FINDINGS - A. 1: Young, a' West Virginia corporation with its principal place of business in Huntington, West Virginia, is engaged in the construction business as a plumbing, heating, and air-conditioning contractor and, supplier. During the past year, a representative period, Young, in the course,and conduct of its business, purchased goods and materials valued in excess of$50,000 from suppliers located outside.West Virginia and caused such goods and materials to be shipped from locations outside West Virginia directly to locations within West Virginia. At all times material herein Young has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Huntington Federal Savings and Loan Association (Huntington), chartered by the United States, is engaged in the operation of a, fmancial institution in Huntington, West Virginia. During the past year, a representative period, it has received gross income from its operations in excess of $500,000 and has transferred funds and commercial papers valued_in-excess,of $50,000 from West Virginia directly to points outside West Virginia. At all times material herein Huntington has been an employer-and a person engaged in commerce within-the meaning of Sections 2(1), (6), and (7) and 8(bx4)(B) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Chronology The gist of the General Counsel's position in this case is that Respondent, in furtherance of a Jurisdictional dispute, has engaged in unlawful secondary activities, directed -against Young, has unlawfully refused to bargain with Young in good faith, and unlawfully disciplined a member of Respondent for continuing to work for Young. , For many years Respondent has negotiated collective- bargaining agreements with the Huntington Area Sheet Metal Contractors, of which there are now 10 members. Although the contracts are always negotiated on behalf of the employers by representatives of the. Association, it appears that individual, though uniform, contracts are signed by the Union with each of the employers. Young also employs pipefitters, who are represented by Local 521 of the Plumbers and Pipefitters Union. In 1972 Young assigned to the pipefitters the work of installing certain air-conditioning equipment in a Holiday Inn then under construction. After part of the work had been done, Respondent maintained that the work should be performed by a composite crew of pipefitters and sheet metal workers. When Young refused to accede to Respon- dent's position, Respondent filed a grievance under its collective-bargaining agreement. The grievance was -heard by a panel of the Local Joint Adjustment Board, as provided in the. contract. The Pipefitters Union was denied participation - in the grievance proceeding. The panel assessed a fine of $2,040 against Young., On-Young's appeal,, the full National Joint Adjustment Board for the sheet metal industry affirmed the assessment on June 25, 1973. After 30 days' refusal by Young to pay the- assess- ment, Respondent canceled its contract with Young as of August 3, 1973. Respondent took this action pursuant to a provision in the collective-bargaining agreement reading in part: ... in addition to, any other legal remedies -which may be available' to the- parties, ., . . this Agreement may also be cancelled by either party hereto, in the event of the failure of the other to effectuate any award or order of the National Joint Adjustment Board within thirty (30) days of notice thereof. On August 16, 1973, Young filed a charge with the National Labor Relations Board alleging that Respondent was in violation of Section 8(b)(4)(D) oftheAct. A notice of hearing under Section 10(k) of the Act was issued. The Union commenced picketing Young on August 23, 1973, but ceased that activity on October 8, 1973, when -the United States District Court for the Southern District of West Virginia issued a temporary injunction under Section 110(1) of the Act. Farkas v. Local 418, Sheet Metal Workers, Civil No. CA-73-98-H. 1 National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.). 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On April 9,1974, the Board issued its Decision and Order quashing the notice of hearing in the 10(k) proceeding. Sheet Metal Workers International Association (Young Plumbing & Supply, Inc.), 209 NLRB 1177 (1974). The Board there held that the contractual grievance proceeding under the collective-bargaining agreement did not consti- tute an agreed voluntary method for settling the dispute because the Pipefitters Union was not permitted to partici- pate therein. However, the-Boaard further held that as of June 1, 1973, "all parties [had] agreed to be" bound by a determination of the New Impartial Jurisdictional Disputes Board." On this holding, the Board quashed the notice of hearing. Before reaching that result, a majority of the Board panel "found" reasonable cause to believe that Respondent had violated Sec. 8(b)(4XD). In this connection, it said (209 NLRB at 1179): the Respondents sought to obtain the reassign- ment of the disputed work to their members by the cancellation of their contract and thereafter their consequent refusal to refer sheet metal workers to the Employer. In addition, picketing of the Employer occurred at another jobsite and all sheet metal workers who had been in Young's employment voluntarily resigned their jobs immediately following the contract cancellation.... [T]he Employer requires sheet metal 'workers on all of its otherjobsites. - In Ets Hokin [ 154 NLRB 839 ], the Board defined the term "coercion" to mean "nonjudicialacts of a compel- ling or restraining nature, applied by way of concerted self-help consisting of a strike, picketing, or other economic retaliation or pressure in a background of a labor dispute. - The activities engaged in by Respondents, -while in certain respects within the ambit of provisions of their collective-bargaining agreement with the Em- ployer, nevertheless clearly fall into the category - of "other economic retaliation" and thus constitute' coer- cion within the 'meaning of Section 8(bx4). According- ly, we find that reasonable cause exists to believe that Respondents violated Section 8(b)(4)(D) of the Act. [Footnotes omitted.] In a footnote, Member Fanning disclaimed reliance on the "probable cause" fording. 209 NLRB at 1179, fn. 7. On -May 14, 1974, on consent by the Board's Regional Director and Respondent, the District Court terminated the temporary injunction because of the Board's Decision and Order quashing the notice of hearing in the 10(k) proceed- ing. Thereupon Respondent's members, except for Larry Asbury, stopped working for Young and Respondent thereafter refused requests by Young for referral of sheet metal workers. Respondent, picketed Youngs shop in the middle of May 1974.2 In the *interim, while the 10(k) proceeding was pending before the' Board and the =temporary injunction was in effect, the, Association-negotiated collective-bargaining agreements with Respondent were scheduled to expire on May 31, 1974. As early as February 25, 1974, Respondent advised the chairman of the Contractors' Association that 2 There was a conflict of evidence as to whether Respondent also picketed Young on June 4, 1974. 3 In a posthearmg brief Respondent says: "The Union's position (which is Respondent would not negotiate or enter into a renewal contract with Young and persisted in that-position through- out the negotiations. Contract negotiations were conducted by representatives of the contractors and Respondent through the night of May 31, 1974, into the-early hours of June 1. As late as that time the Association members voted to reject the Union's contract offer: However, sometime after the midnight expiration, two individual employers, breaking ranks, accepted the Union's offer and signed agreements. Within a week or so thereafter all the other contractors (with 'one exception not here relevan t) followed suit and signed the, uniform -contract as offered by the Union. - Young thereafter attempted to sign an identical contract with Respondent but Respondent refused to contract with Young unless Young paid to the -Union $2,040 in accord- ance with the award of the Joint Board.3 At the present hearing the parties stipulated that "the work in dispute is now completed." It does not specifically appear when the-work was completed. In its 10(k) Decision of April 9, 1974, the Board said that the entire project was closed down for reasons unrelated to,the present- dispute. As of August 18, 1975, the date of the'hearing in the present case, the Holiday Inn had not been completed or opened for business. However, in a posthearing brief dated Septem- ber 19, 1975, Respondent says that the Holiday Inn_ "is presently operating and all disputed work is now com- pleted." There is no evidence that Young was in any way involved in the Holiday Inn project after the temporary injunction was vacated. Respondent has not sought judicial confirmation or enforcement of the joint board's award; nor has Young instituted judicial action to have that award vacated. No affirmative evidence was presented as to why the parties did not submit the dispute to the "New Jurisdictional Dispute Board" which the Labor Board held was an agreed-upon forum for voluntary resolution. 209'NLRB 1177. In answer to a question during his opening statement in the present hearing, counsel for the General Counsel said: "The Respondent did not` refuse to go through -the process, although it was a rather confusing situation with respect to attempts to get'the -." Counsel for Young, on the other hand, said that Young was willing to have the new dispute board decide the -natter but "Respondent declined- to do so."' However, it appears that the dispute was "never actually submitted to that- board; which, according' to Young's counsel, "simply declined" to resolve the matter. Larry Asbury, Charging Party in Case 9-CB-2739, is an employee of Young and a member of Respondent. Asbury apparently worked for Young throughout the period here involved and did not walk out when the other sheet metal workers did after the temporary injunction was terminated. Sometime in the latter part of May 1974, Owen J. Bums, 'Respondent's business manager, in a telephone conversa- tion, advised Asbury that because Young had no, contract with Respondent it would be the better part of valor for Asbury to quit his employment. Burns warned that continu- ing to work for Young could subject Asbury to intraunion in fact its position to date) was that it would not negotiate the contract with Young until Young abided by the terms and conditions of the previous contract by paying-the $2,040 assessed against it." LOCAL UNION NO.- 418, SHEET METAL WORKERS 307 charges. At that time Asbury reported to the union office and registered on the out-of-work list. However, he then declined at least one job referral and continued to work for Young. Bums warned Asbury a second time that he might face -charges for` working for Young,- which, according to Bums, had no union contract. On June 4, 1974, Young was serving as a subcontractor on a job at the Huntington Federal Savings and Loan Association building. Asbury appeared on the scene as an employee-of Young. At that point-a member of Respondent who was working for anothersubcontr-actor on the premis- es ceased work and telephoned Bums. There is a conflict of evidence, discussed below, as to what Burns did and said at that time. But it is undisputed that Robert W. Ashworth, president of-the prime contractor, asked Asbury to leave the premises. Asbury complied and the work then proceeded without further incident. Burns filed intraunion charges against- Asbury. After a brief hearing, the Union's trial committee found Asbury guilty of violating the Union's constitution by working for a nonunion contractor. The committee assessed a fine of "$500 with $450 of this suspended with- the understanding that if he is found in violation of the Constitution any time in the future ... this $450 would- automatically become payable to Local Union No. 418."4 At the hearing the General Counsel stated that "there-is now pending before the Board another, 8(b)(4)(D) charge" and a 10(k) hearing thereon was held in June 1975. No further details were provided. However, brief portions- of the transcript of that hearing were introduced in the present case to impeach -(or possibly refresh the recollection of) Bums.--T-hose, portions -indicate that in the second 10(k) hearing evidence was adduced as to the-events involved in the present case. - B. The Specific Allegations - The - complaint alleges that Respondent -has violated Section 8(b)(3) by refusing to sign a contract with Young, "the provisions of which were previously agreed upon by Respondent and" Young. The evidence is uncontradicted that, before negotiations for the 1973 contract commenced, Respondent, announced its refusal to negotiate a contract with Young. It is also clear, however, that both Young,and Respondent were satisfied with the terms of the agreement eventually negotiated by Respondent with representatives of the Association, and the only bar to execution of a contract with Young was Respondent's, refusal to enter a contractual relationship with Young until Young paid the $2,040 assessment awarded -by the joint board under their prior contract. - In his brief the 'General Counsel advances the basic contention that: Respondent has now been engaged in a labor dispute with " Young for more than two -years, concerning a jurisdictional-question of assignment of the work of installing certain heating and cooling units at the downtown Huntington, West Virginia Holiday Inn, and the Board has already so determined such a dispute to exist .... [A]lthough Respondent initially sought to vindicate -its position through the grievance procedures available under its contract with Young, after prevailing in such grievance procedures, it eschewed the proper and ordinary forum, i.e., the Courts, for enforcement of its contractual rights but instead proceeded to employ tactics of a non judicial nature man attempt to coerce a settlement in its favor. Thus, Respondent cancelled its contract with Young, effective August 3, 1973; refused to refer employees to Young pursuant to its past practice and contract.... Such acts and conduct clearly violate Section 8(b)(4)(D) of the Act. [Footnotes omitted.] Later in the brief, addressing himself specifically to the 8(b)(3) violation, the General Counsel says: [I]t was Burns' position at the hearing that he was willing to execute with Young that same agreement which Respondent had entered into with the other members of Huntington Sheet Metal Contractors' Association, conditioned only upon Young's payment to Respondent of the sum of $2,040.00. Such an extraneous consideration certainly cannot justify a refusal to execute, a collective bargaining agreement whose terms are agreed between the parties, especially where, as in the instant case, such refusal constitutes nothing less than the continuation of a clear violation of Section 8(bx4)(ii)(D) of the Act. Thus the General Counsel, following the complaint, is essentially contending that Respondent is guilty of a violation of Section 8(b)(4)(D), -and its alleged refusal to bargain is but part and parcel of an "ongoing" jurisdiction- al dispute. Although Charging Party Young has not filed a brief, its charges reflect agreement with the General Counsel's view that the present complaint essentially involves a jurisdic- tional dispute. The secondary boycott charge (Case 9-CC- 788-2) alleges violation of Section 8(b)(4)(i) and (ii)(B) and (D) and "requests reopening of the jurisdictional dispute proceedings "or that the Regional Director seek injunctions under Section 10(k) and (1) of the Act." It then states that the refusal-to-bargain charge (Case 9-CB-2767-2 "arises out of the above." No action has been taken on Young's request as such and at the hearing the General Counsel expressly said: "the complaint does not allege 8(b)(4)(1)), it alleges 8(b)(4)(B)." Despite the Board's Decision quashing the notice of hearing in the original 10(k) proceeding, the original, charge is still outstanding (Wood, Wire and Metal Lathers Interna- tional Union and its Local Union No. `2, AFL-CIO, et al. (Acoustical Contractors Association of Cleveland), 119 NLRB 1345 (1958)) as a viable predicate for an 8(b)(4)(D) complaint.. See Operating Engineers Local Union No. 3, International Union of Operating Engineers, AFL-CIO (Hansen's Inc.) 192 NLRB 139 (1971), reaffirmed 199 NLRB 726 (1972), where the Board said (199 NLRB at 727): 4 It appears that Asbury hadhad previous difficulties with the Union. However, it is not alleged and the General Counsel does not now contend that the Union's discipline of Asbury was discrimunatorily motivated. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As the utilization of the agreed-upon method failed to produce an adjustment of the dispute, the issuance of a complaint under Section 8(b)(4)(D) of the Act without a prior hearing and determination under Section 10(k) was proper. Additionally, as previously noted, a second 8(b)(4)(D) charge is apparently pending.5 The Board has unequivocally ruled that Section 8(a)(5) may not be used to vindicate an allegedly unlawful refusal to bargain which is part of a jurisdictional dispute. J. L Allen Co., 199 NLRB 675, 676 (1972): [W]e rest our dismissal of [the Section 8(a)(5)] allega- tion on our determination that the conduct alleged to constitute a refusal to bargain was, in fact, merely part and parcel of the bona fide jurisdictional work dispute which existed in this case and was so inseparably intertwined with the other conduct in the course of the jurisdictional dispute that to find and remedy any such violation would also stand in conflict with the remedial scheme contemplated by Congress as the exclusive means for resolution of work-assignment claims be- tween competing labor organizations .6 There is no apparent reasonable basis for distinguishing an employer refusal to bargain under Section 8(a)(5) from a union's refusal to bargain under Section 8(b)(3). Indeed, in J. L Allen the majority expressly pointed out that "it would be anomalous" not to apply the same reasoning to 8(a)(3) and 8(b)(2) allegations in the context of a jurisdictional dispute. 199 NLRB at 676. The present complaint alleges that Respondent's violation consisted of refusing to execute a contract the terms of which had been agreed on. An employer's and a union's obligations in this regard are identical. Had the situation been reversed, with Young refusing to contract with the Union because of the Union's refusal to comply with an adverse decision of the grievance, there is no question that an 8(a)(5) complaint would be dismissible under J. L Allen. I thus find that J. L Allen requires dismissal of the refusal-to-bargain allegation in the present case. It is recognized that the foregoing ruling is based on considerations and authority not advanced by Respondent. However, counsel for the General Counsel was questioned S In the absence of any specific information concerning that charge, it is impossible to determine whether the matters here in issue can be resolved in that proceeding, in which there has been a 10(k) hearing. 6 In a minority opinion in J L Allen, Members Kennedy and Penello disagreed with the quoted ruling ( 199 NLRB at 676) TheJ L Allen case was followed by a Board panel in Cornell-Leach, Gibson Project, A Sole Proprietorship, 212 NLRB 495 ( 1974), with Member Kennedy again dissent- ing. Then, in Bakery Wagon Drivers & Salesmen Local 484, Teamsters (Oroweat Baking Company), 214 NLRB 891 (1974), Members Kennedy and Penello, as a panel majority, again rejected the J L Allen ruling. However, I cannot read that latest panel decision as overruling the full Board decision, particularly since the panel majority 's rejection of the J L Allen rule did not control the ultimate result in Oroweat. I Since the relevant facts are undisputed , the parties will be able to obtain full review of the legal issue and a final decision by the Board on exceptions Thus there appears to be no danger of a denial of due process by the present decision based on a legal view not presented by the parties. 8 Because the Board there found , at most, that there was "probable cause" to believe that Respondent had violated Sec 8(b)(4)(D), there could be no effective review even if, as the Court of Appeals for the Ninth Circuit briefly as to how a finding of an 8(b)(4)(D) violation could be warranted in the present proceeding. In any event, I understand J. L Allen, supra, and its progenitor, Brady- Hamilton Stevedore Company, 198 NLRB 147 (1972), as establishing that the absence of an 8(b)(4)(D) complaint imposes a jurisdictional bar to the present litigation.? In view of the clarity of the Board precedents, it is perhaps unnecessary to add any further discussion. How- ever, it may be advisable to point out a few considerations which demonstrate that the J. L Allen rule as here applied is not merely a technical, procedural matter, but rather serves a substantive purpose. As previously noted, the 10(k) notice of hearing was quashed and no 8(b)(4XD) complaint was issued. The Board's prior decision is thus unreviewable.8 Shell Chemical Company v. N.LR.B., 495 F.2d 1116 (C.A. 5, 1974), cert. denied 421 U.S. 963 (1975); Bricklayers, Masons and Plasterers International Union of America [Shelby Marble & Tile Co.] v. N.LR.B., 475 F.2d 1316 (C.A.D.C., 1973). The Board Decision in the 10(k) proceeding did not require Respondent to execute a contract with Young. Sheet Metal Workers International Association, Local Union No. 11 (Corrugated Asbestos Contractors, Inc.), 192 NLRB 32 (1971), affd. 458 F.2d 683 (C.A. 5, 1972). Until a final order is issued on the 8(b)(4)(D) charge, Respondent is under no legal obligation pursuant to that section of the Act (International Telephone & Telegraph Corp., Communications Equipment & Systems Division v. Local 134, International Brotherhood of Electrical Workers, AFL-CIO, 419 U.S. 428, 445 (1975); Bricklayers, supra, 475 F.2d at 1321, and authorities there cited) and the Joint Board's award under the prior contract is fully effective. Due process would appear to require that any Board action superseding or nullifying the arbitral award be in the form of a final, reviewable order, a condition impossible to meet in the present proceeding. Throughout the period here involved9 Respondent ap- pears to have been entirely willing to contract with Young if the Company met its established liability under its prior contract. So far as the record discloses, the work in dispute had been completed and Respondent was not seeking assignment of any type of work when it refused to contract with Young until Young paid the $2,040 assessment. 10 The General Counsel cites no authority for concluding that a union or an employer is guilty of a refusal to bargain in has held, contrary to the Board's view, that an order quashing a notice of hearing in a 10(k) proceeding may be reviewable. Waterway Terminals Company v. N LRB., 467 F 2d 1011 (1972) The "probable cause" finding itself was in the nature of dictum , since it was necessary to the Decision , which was based on the existence of an agreed-upon method of resolving the dispute Cf Sheet Metal Workers Local Union No 359, Affiliated with Sheet Metal Workers ' International Association, AFL-CIO (Eli Piping), 217 NLRB 987, 990, fn. 4 (1975); Construction, Production & Maintenance Laborers' Union, Local No 383 of the Laborers International Union of North America, AFL-CIO, (Industrial Turf Inc), 218 NLRB 424, 427, fn. 7 (1975). 9 Apparently Sec 10(b) of the Act would not preclude a finding in the present case that cancellation of the contract in August 1973 was unlawful because originating in a violation of Sec. 8(b)(4)(D ) Communications Workers ofAmerica, AFL-CIO, Local 1127 (New York Telephone Company), 208 NLRB 258 (1974). 10 In its 10(k) Decision the Board said that "the Respondents sought to obtain the reassignment of the disputed work . by the cancellation of their contract and thereafter their consequent refusal to refer sheet metal workers to the Employer." However, the record in that proceeding is not before me LOCAL UNION NO. 418, SHEET METAL WORKERS 309 good faith if it declines to bargain while the opposite party persists in remaining in noncompliance with its established obligations. It can scarcely have been the intention of Congress to require a union to bargain with an employer who has demonstrated his refusal to honor his commit- ments.11 It would appear reasonable and consistent with the policies- of the Act to hold that either a union or an employer may be estopped to assert its right to bargain by misconduct going to the heart of the bargaining relation- ship, such as defiant breach of contract. Cf. The Massillon Publishing Company, 212 NLRB 869 (1974).12 Otherwise stated, it would,' perhaps' be reasonable to hold that Respondent's obligation to bargain was suspended for so long as Young in effect refused to bargain in good faith by dishonoring an accrued debt under the prior contract. In its 10(k) Decision the Board indicated that Respon- dent's rescission of the contract was unlawful because "coercive" within the strictures of Section 8(b)(4)(D). I do not read the Board as holding that the provision for rescission was per se unlawful or that in all circumstances Respondent would be required to pursue only-judicial remedies.13 See Amalgamated Lithographers ofAmerica and Local No. 17 of the Amalgamated Lithographers of America (The Employing Lithographers), 130 NLRB 985, 989 (1961), enfd. 309 F.2d 31, 39 (C.A. 9, 1962), cert. denied 372 U.S. 943 (1963); Amalgamated Lithographers of America and Local 78, Amalgamated Lithographers ofAmerica and Em- ploying Lithographers of Greater Miami, Florida (Miami Post Company), 130 NLRB 968 (1961), enfd. as modified 301 F.2d 20 (C.A, 5, 1962). Cf. Southern California Pipe Trades District Council No. 16 (Associated General Contractors of California, Inc. of California), 207 NLRB 698 (1973). It is true that in Sheet Metal Workers, International Association, Local Union No. 49 (Los Alamos Constructors, Inc.), 206 NLRB 473, 476 (1973), the Board said, by way of dictum, that it had "long held that coercion within the meaning of Section 8(b)(4) encompasses all nonjudicial acts of self-help in furtherance of a jurisdictional claim." To support that statement the Board cited Ets-Hokin Corpora- tion, 154 NLRB 839 (1965), enfd. sub nom. International Brotherhood of Electrical. Workers, Local 769.405 F.2d 159 (C.A. 9, 1968), cert. denied 395 U.S. 921 (1969). In Ets- Hokin it was held, inter alit, that a union engaged in coercive conduct violative of Section 8(bX4)(B) of the Act when it exercised its contractually -provided right to terminate a collective-bargaining agreement - for the em- ployer's breach of a subcontracting agreement. But the Board there expressly noted that its ruling applied only to cases involving Section 8(e) of the Act since there was no "congressional intent to limit to lawsuits the enforcement of a clause outside the reach of Section 8(e) without reference to its proviso." 154 NLRB 843. Ets-Hokin clearly does not outlaw right to terminate clauses which are incidental to other lawful contractual provisions. - and the present record contains no evidence to support such a finding, Since the finding was unnecessary to the prior Decision and was unreviewable, it is not conclusive in the present independent proceeding. N L.R.B. v. Plasterers' Local Union No. 79, Operative Plasterers' & Cement Masons' International Assn., 404 U.S. 116, 122, fn. 10 (1971), citing with approval International Typographical Union, Local 165, AFL-CIO (Worcester Telegram Publishing Company, Inc.), 125 NLRB 759,761 (1959) ,Fa n' As Burns testified: "There's no use of signing a contract if they violated the last one." In Sheet Metal Workers International Association Local Union No. 11 (Corrugated Asbestos Contractors, Inc.), 181 NLRB 154 (1970), the Board held there was probable cause to believe that a union had violated Section 8(b)(4)(D) by indicating that it would cancel its contract and refuse to refer workers as a means of obtaining future assignment of disputed work. The Board then proceeded to determine the dispute. It thereafter found that the union had not violated Section 8(b)(4)(D) or 8(b)(3) because it disclaimed repre- sentation. Sheet Metal Workers International Association Local Union No. 11 (Corrugated Asbestos Contractors, Inc.) 192 NLRB 32 (1971) affd. 458 F.2d 683 (C.A. 5, 1972). No finding of violation of Section 8(b)(4XD) was made. In the absence of any express overruling of Miami Post, supra, 130 NLRB 968, 977, as reaffirmed in Ets-Hokin, I do not understand present Board law to be that right to terminate clauses or their utilization are per se coercive or otherwise unlawful In the context of an 8(b)(3) allegation it might be entirely reasonable to place on Young the onus of having the arbitral award judicially vacated, particularly in view of its contractual commitment that such an award was to be final and binding. It appears clear that the courts have jurisdic- tion under Section 301(a) of the Act to vacate an arbitral award (Metal Products Workers Union, Local 1645 v. The Torrington Company, 242 F.Supp. 813, 818 (D.C. Conn., 1965), affd. 358 F.2d 103 (C.A. 2, 1966)), even where the award concerns a jurisdictional dispute within the purview of Section 8(b)(4)(D). Sheet Metal Workers International Union, AFL-CIO v. Aetna Steel Products Corporation, 246 F.Supp. 236, 239 (D.C. Mass., 1965), affd. 359 F.2d 1 (C.A. 1, 1966), cert. dewed 385 U.S. 839. The law favors use of grievance procedures and arbitration in jurisdictional disputes even when not all of the interested parties participate. Carey v. Westinghouse Electric-Corp., 375U.S. 261, 265 (1964). To permit the losing party to ignore an arbitral award and "shop around" for, an alternative, favorable forum would seriously undermine the policy favoring arbitration. If Young had sought judicial vacation of the arbitral award, it would not thereby have been barred from filing an 8(b)(4)(D) charge with the Board. Cf. Lodge 743, interna- tional Union of Machinists, AFL-CIO v. United Aircraft Corporation, 337 F.2d 5 (C.A. 2, 1964), cert. denied 380 U.S. 908,(1965). Nor would confirmation of the award (by denial of vacation) preclude litigation of a further dispute generat- ed by the award. Hellman v. Program Printing, Inc., 400 F.Supp. 915 (D.C.N.Y., 1975). Nor would Young sufer,any separable injury by complying with the award pending final determination "since any money expended ... can be reimbursed should [Young] prevail." International Long- shoremen's and Warehousemen's Union, Local 34 v. Cargill, Inc., 357 F.Supp. 608, 609 (D.C.Calif., 1973). And a final Board order- in the 8(bX4)(D) proceeding would take 12 "In our opinion, a decision by the Union to collectively withhold the services of all employees might welljustify Respondent's taking the position that the Union would thereby be estopped from claiming that Respondent had to continue to apply the contract." 13 It is not clear what the Board's view would be if Respondent secured judicial confirmation or enforcement of the award and Young thereafter persisted in its refusal to pay. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD precedence over a conflicting arbitral award, even if confirmed by a court. International Brotherhood of Boiler- makers, Iron Shipbuilders, etc. v. Combustion Engineering, Inc, 337 F.Supp. 1349 (D.C.Conn., 1971); Combustion Engineering, Inc., 195 NLRB 909 (1972). It is possible that in an action by Young to vacate the award a court could order tripartite arbitration and relieve Young of the possible conflict to which its two contracts may have subjected it. See Columbia Broadcasting System, Inc. v. American Recording and Broadcasting Association, 414 F.2d 1326 (C.A. 2, 1969); Local 416, Sheet Metal Workers International Association AFL-CIO v. Helgesteel Corporation, 335 F.Supp. 812 (D.C.Wis., 1971). And such arbitration might be stayed pending a proper Labor Board proceeding. Boilermakers v. Combustion Engineering, Inc., supra. Further, the court presumably could issue an interim stay, preventing the Union's taking action pending deci- sion. In this connection, it is not without significance that the Regional Director consented to vacation of the 10(1) temporary injunction after the Board quashed the 10(k) notice of hearing in the present case. For the foregoing reasons, in the absence of a final order in the 8(b)(4)(D) proceeding, it would appear improper to conclude that Respondent committed unfair labor practices by pursuing its contractual remedies, which are not per se contrary to the Act. Cf. Rotenberg v. Plumbers' Union Local 15, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO 304 F.Supp. 880 (D.C.Minn., 1969). 1. Section 8(b)(1)(A) Asbury's charge (Case 9-CB-2739), filed on August 16, 1974, alleged violation of Section 8(b)(1)(A) in that Respon- dent "unlawfully fined the Charging Party for engaging in activities protected by Section 7 of the Act." In the complaint this allegation is narrowed down to specify that Respondent unlawfully disciplined Asbury "for refusing to engage in work stoppage involving a jurisdictional dispute violative of Section 8(b)(4)(D) of the Act and/or his failure to adhere to Respondent's demand that he not work for Young during the said dispute after Respondent elected to refuse to refer employees to Young under its contract with Young." It is well established that a union may legitimately fine or otherwise discipline one of its members for working during a lawful strike or in defiance of a valid implementation of the union's no-contract-no-work rule. Cf. Florida Power & Light Co. v. International Brotherhood of Electrical Workers, Local 641, et al., 417 U.S. 790 (1974). Therefore the Union's fining and disciplining Asbury in the present case could be improper only if Respondent was engaged in an unlawful strike or had improperly invoked its no contract-no work rule against Young. But, as clearly shown by the General Counsel's argument, Respondent's strike or invocation of 14 Although the charge also alleged violation of Sec 8(b)(4XiXB), no such allegation is contained in the complaint 15 Apparently at poor stages of this controversy Respondent contended that Asbury was fined for working for Young or. June 4, while Young was being picketed I deem it immaterial whether Asbury was disciplined for working during picketing or simply for working for an employer who did not have a contract. There is no contention that the discipline was not proper so far as the Union's constitution is concerned 16 Bums added "and then information right across the bottom of it " It is not clear what this means the no contract-no work rule was part of a jurisdictional dispute. Just as Section 8(a)(3) and 8(b)(2) may not be used as a vehicle for vindicating violations of Section 8(b)(4)(D) (Brady-Hamilton Stevedore Company, 198 NLRB 147 (1972)), there is no reason for permitting Section 8(b)(1)(A) to be so used (Cornell-Leach, Gibson Project, A Sole Proprietorship, 212 NLRB 495 (1974)). That being so, J. L. Allen, supra, requires dismissal of the present allegation that the disci- pline of Asbury was unlawful. The considerations previously set forth for not determin- ing in this case that Respondent violated Section 8(b)(3) of the Act are equally applicable to the 8(b)(1)(A) allegation. 2. Section 8(b)(4)(ii)(B) a. The evidence The complaint alleges that, as part of its continuing jurisdictional dispute with Young, Respondent threatened to picket Huntington Federal Savings and Loan Associa- tion (Huntington) for the purpose of causing Huntington and other person to cease dealing with Young, in contra- vention of Section 8(b)(4)(ii)(B) of the Act.14 The facts are simple, but there is some conflict of evidence. In 1973, because of the jurisdictional dispute out of which the present case arose, Respondent picketed Young's shop. The picketing was discontinued when the temporary injunction was issued on October 8, 1973. However, in May 1974, upon vacation of the injunction, picketing of Young's premises was resumed. It was stipulated that Respondent picketed Young's shop for some time during May. There is a disagreement as to whether there was picketing on the morning of June 4. I find it unnecessary to resolve this dispute.15 According to Burns' uncontradicted evidence, the picket signs read, in essence: "Young's Plumbing Supply does not have agreement with Sheet Metal Workers Local 418." i6 The General Counsel and Charging Party do not complain of the picketing of Young's shop. IT Early in June 1974 Huntington was having outdoor dnve- in facilities constructed and was having a basement room remodeled into an office. Ashworth Construction Company was the general contractor on both thesejobs. In addition, according to Charles D. Howland, Huntington's vice president, Young, had been directly retained to do a separate, relatively minor job of balancing the heating and air-conditioning system in the building.18 On the morning of June 4, 1974, Asbury went to work at the bank. At the time, Maynard Ramsey and Clyde Akers, two other members of Respondent, were present, working for Wilcoxen-Gatch, the roofing subcontractor under Ashworth. Upon seeing Asbury, Akers telephoned Burns, who in turn telephoned Howland. According to Howland, Bums said that there was "scab" labor on the job and "it wasn't permitted, because it had to be a union job." Howland further testified that Bums "went on to state that 17 Such picketing would be at least arguably improper, if, as the complaint alleges, Respondent was unlawfully refusing to sign a contract 18 Asbury, the Young employee assigned to the Job, testified that he was doing some work in connection with the basement remodeling as well as the balancing work on the second floor of the building. I deem it immaterial whether Young was a subcontractor under Ashworth as well as a direct contractor on the other, smaller project - LOCAL UNION NO. 418, SHEET METAL WORKERS 311 he would hate to do anything to an association like [Huntington ], but that man would have to be pulled off or they would be forced to put up a picket line." Bums identified Young as the "non-union" contractor involved. Bums denied that he had referred to "picketing" in his conversation with Howland. Bums testified that he told Howland that the Union would take ".appropriate measures to advertise," "appropriate steps" or "whatever action was necessary, or something to that effect." Burns maintained that he would not possibly have threatened to picket, since picketing was prohibited by its collective-bargaining agree- ments and thus would subject the Union to a valid grievance by Wilcoxen-Gatch. However, Burns' testimony in this regard was confused and he was unable to produce any relevant contractual provision. When. asked what he meant by "advertising," Bums stated, in effect, that he would advise Respondent's- members not to patronize Huntington and the Union's "members absolutely just don't seem to want to spend their money with somebody that's going to use that money against us." After his telephone conversation with Bums, Howland telephoned- Ashworth's and Young's offices, and left messages for Mr. Ashworth and Neal Deering, Young's vice president. Shortly thereafter Ashworth arrived at the bank. According to Ashworth, Bums had already arrived on the scene and was objecting to Asbury's presence. However, Burns testified that by the time he arrived at the bank Asbury and Young's truck had already left. In any event, before Ashworth and Burns had any conversation, Ashworth asked Asbury to leave and Asbury complied forthwith. Akers and Ramsey, who had been standing around not working, resumed their work. Ashworth and Bums then spoke together. According to Ashworth, "Mr. Bums said he could not understand why [Ashworth] continued to use Young Plumbing when they were an unsigned contractor." While denying that he had threatened to "picket," Bums frankly revealed that it was his aim to get Young (represent- ed by Asbury) off the job. For example, Bums testified: Q. Well Mr. Bums, if you weren't trying to tell Mr. Howland to get [Asbury] off the job, why did you call him? A. Definitely, I was hoping they would remove the man from the job. Q. That was the reason you called Mr. Howland? A. That was exactly our hope, that he would do that. Q. And you called Mr. Howland to tell him that so that he would get rid of Mr. Asbury, is that right? A. Never told him to get off of the job. Q. But that was what you were trying - A. That was his decision. Q. That was what you were trying to achieve, wasn't it? A. Absolutely. '9 It should be noted that the complaint does not allege violation of Sec. 8(b)(4)(i)(B)• 20 Remanded on other grounds 398 F.2d 11(C.A. 8,1968), reaffirmed 178 NLRB 119 ( 1969), enfd. 439 F 2d 225 (C.A. 8, 1971). 21 Even on Burns' testimony that he did not use the work "picket" but Q. And that was because Asbury worked for Young Plumbing, is that right? A. Yes, sir. In the 1974 10(k) hearing Burns was asked if he had created the impression that the job would be picketed. He answered: "There could. have been other results. The other two sheet metal workers would have left, had he stayed there because they value their union cards and they are proud of it. They don't want to work with nonunion people, they would have left." 19 In view of that statement, it is difficult to take at face value Burns' statement that if the other men had walked off the job, "as-business manager of the local union, [he] would direct them to go back to work on that job." b. Jurisdiction Although the complaint alleges that Respondent's second- ary activities were part of and, in furtherance of the continuing jurisdictional dispute, the controlling. procedur- al or jurisdictional considerations differ from those cover- ing the 8(b)(3) and 8(b)(l)(A) allegations. Secondary boycotts within the purview of Section 8(b)(4)(B) are prohibited even if the union is engaged in a lawful strike against the primary employer. The nature and origin of the dispute between the union and the primary employer are essentially immaterial. For this reason "it is well settled that Section 8(b)(4)(B) and (D) are not mutually exclusive. The existence of a jurisdictional dispute does not preclude a finding that conduct aimed at resolving the dispute by secondary means violates Section 8(b)(4)(B). Carpenters District Council of Kansas City and Vicinity (Ralph H. McClain, et al.), 158 NLRB 1101, 1102, fn. 1(1966).20 This view has been approved by the Supreme Court. N.L.R.B. v. Local 825, International Union of Operating Engineers, AFL-CIO [Burns & Roe, Inc.], 400 U.S. 297, 305-306 (1971). Thus, in determining whether Respondent threatened unlawful secondary activity in the present case it is unnecessary to decide whether Respondent's refusal to contract with or refer employees to Young was violative of Section 8(b)(4)(D). Accordingly, unlike the 8(bXl)(A) and 8(b)(3) allegations, the absence of a complaint alleging violation of Section 8(b)(4)(D) does not require dismissal of the present allegation of unlawful secondary activity. c. Findings and conclusion On all the evidence, having closely observed the demean- or of the witnesses, I credit Howland's testimony that Bums, speaking for Respondent, said that the Union would picket the Huntington premises unless Young was removed from the job.21 There can be no question that a purpose - indeed, the only purpose - of Bums' statement was to cause Huntington and Ashworth to cease doing business with Young. I so find. simply said he would "advertise" or take any necessary or appropriate steps, such generalized threat ofeconomic action would be held coercive within the strictures of Sec. 8(b)(4Xii)(B) of the Act. Local Union No. 174, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Independent (V. G. Scam 172 NLRB 1217 (1968). 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The foregoing findings, however, do not necessarily dispose of the matter. Since the Union was engaged in a dispute with Young, it was not entirely prohibited from picketing any site at which Young was engaged. So long as Respondent complied with the Moore Dry Dock stand- ards,22 it could picket at Huntington's premises. Interna- tional Brotherhood of Electrical Workers, Local Union 861, and Arneth Lard, its agent (Plauche Electric, Inc.), 135 NLRB 250 (1962). There is no evidence on which it can be found that Burns threatened to engage in unlawful picketing; i.e., that the Union would not strictly observe the Moore Dry Dock standards for common situs picketing. Since Respondent could probably engage in legal picketing by strictly conforming with the Moore Dry Dock requirements, it could be reasonably argued that its threat to picket was not violative of the Act. See Amalgamated Packinghouse, Leather and Allied Food Workers of Wisconsin (Packerland Packing Company, Inc.), 218 NLRB 853 (1975); Internation- al Union of Operating Engineers, Local No. 17, 17A and 17B, AFL-CIO (Firelands Sewer and Water Construction Co., Inc.), 210 NLRB 150 (1974); Carpenters District Council of Houston and Vicinity (Astrodomain Corporation), 202 NLRB 744, 747 (1973); Truck Drivers & Helpers Local Union No. 592, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Estes Express Lines, Inc.), 181 NLRB 790, 791-792 (1970). But Board precedents appear to place on the union the obligation to give advance assurance that any picketing it may conduct will be kept strictly within the Moore Dry Dock limitations. A union may not make a generalized threat to picket, with a presumption that it will conform with established restrictions. General Drivers, Chauffeurs, and Helpers, Local Union No. 886 (The Stephens Company), 133 NLRB 1393, 1395-96 (1961); Bryant Air Conditioning and Heating Co., Inc. v. Sheet Metal Workers' International Association, Local No. 541, AFL-CIO, 472 F.2d 969, 972 (C.A. 8, 1973); Local 2669, affiliated with Suffolk County District Council of Carpenters, United Brotherhood of Car- penters and Joiners of America, AFL-CIO >T & D Roofing Co.), 173 NLRB 1232, 1235 ( 1968). Accordingly, I find that Respondent violated Section 8(b)(4)(ii)(B) by threatening action against Huntington if it continued to use Young as a contractor or subcontractor. CONCLUSIONS OF LAW 1. Young Plumbing & Supply, Inc., and Huntington Federal Savings and Loan Association are engaged in commerce within the meaning of Sections 2(6) and (7) and 8(b)(4)(ii)(B) of the Act. 2. Respondent, Local Union No. 418, Sheet Metal Workers' International Association , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening Huntington Federal Savings and Loan Association with economic pressure in furtherance of a dispute with Young Plumbing & Supply, Inc., Respon- dent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(ii)(B) of the Act. 4. It has not been shown in this proceeding that Respondent has engaged in any unfair labor practices other than as set forth in the preceding conclusion. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend a cease-and-desist and notice-posting order as is customary in such cases. [Recommended Order omitted from publication.] 22 Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547 (1950)