Sheet Metal Workers Local Union No. 91

766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sheet Metal Workers Local Union No. 91 , affiliated with Sheet Metal Workers International Asso- ciation, AFL-CIO and The Schebler Company Sheet Metal Workers International Association, AFL-CIO and The Schebler Company. Cases 33-CC-853, 33-CB-2401-1, 33-CE-14, 33- CC-854, and 33-CB-2401-2 June 7, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On November 9, 1987, Administrative Law Judge Robert A. Giannasi issued the attached deci- sion. The Respondents and the General Counsel filed exceptions and supporting briefs, and the Gen- eral Counsel filed an answering brief and a brief in support of the judge's decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,I and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Sheet Metal Workers Local Union No. 91, affiliated with Sheet Metal Workers International Association, AFL- CIO, Rock Island, Illinois, and Sheet Metal Work- ers International Association, their officers, agents, and representatives, shall take the action set forth in the Order. agreement with Winger Contracting Company (Winger), containing a so-called Integrity Clause which is violative of Section 8(e) of the Act. The complaint also alleges that Respondent International and Respondent Local Union violated Section 8(b)(4)(ii)(A) of the Act by threatening, coercing, or restraining Schebler Company (Schebler) with an object of "forcing or requiring" it to enter into an agreement containing the allegedly unlaw- ful Integrity Clause and violated Section 8(b)(3) by con- ditioning certain other agreements with Schebler on the latter's agreement to the Integrity Clause. The Respond- ent denied the essential allegations of the complaint. The General Counsel and Schebler filed opening briefs, the Respondents filed a responding brief and the General Counsel and Schebler filed reply briefs. I Based on the entire record in this proceeding including the testimony of the witnesses and the arguments and briefs of the parties, I make the following FINDINGS OF FACT I. BACKGROUND AND JURISDICTIONAL'MATTERS Respondents are labor organizations within the mean- ing of Section 2(5) of the Act.2 Illowa Sheet Metal Contractors Association, Inc. (Illowa) is an organization of employers engaged in the construction industry with an office located in Daven- port, Iowa. Illowa exists in part for the purpose of repre- senting its employer members in negotiating and adminis- tering collective-bargaining agreements with various labor organizations, including Respondent Local Union, at various jobsites and facilities in Illinois and Iowa. Re- spondents admit that Illowa, through its members, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondents also admit that Schebler is an employer engaged in commerce within the meaning of the Act and that Schebler and Winger Contracting Company (Winger) are employer members of Illowa. Thus, the Respondents have admit- ted that the Board has jurisdiction in this case. ' We find it unnecessary to pass on the judge's statements about the construction industry proviso of Sec 8(e) because we agree with his find- ing that the Respondents expressely disavowed reliance on the proviso The General Counsel excepted to the judge's failure to include a visita- tonal clause in his recommended remedy We have concluded that in the circumstances of this case such a clause is not warranted Cherokee Marine Terminal, 287 NLRB 1080 (1988) Judith Poltz Esq., for the General Counsel. Donald W. Fisher, Esq. and Judith Rivlin, Esq., of Toledo, Ohio, for the Respondent. Kathleen A. Reimer, Esq. (Black, Reimer & Goldman), of Des Moines, Iowa, for the Charging Party. DECISION STATEMENT OF THE CASE ROBERT A. GIANNASI, Administrative Law Judge. This case was tried on 18 and 19 December 1986 in Rock Island, Illinois. The complaint alleges that Re- spondent Local Union entered into and maintained an II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts For the last 25 years, Respondent Local Union has been the lawfully designated exclusive collective-bargain- ing representative for the following appropriate unit of employees within the meaning of Section 9(b) of the Act: All employees engaged in work described at Article I of Standard Form of Union Agreement for Sheet 'The record does not reflect that the formal documents, G C Exh. IA-IT, were received in evidence The record shows there was no objec- tion to their admission and they are received in evidence I also grant the General Counsel's unopposed motion to correct transcript 2 The constitution of the International provides that its general presi- dent has "direction and supervision of all local unions and all of the officers thereof, with full authority to suspend the charter of any local union for failure of its officers or members to comply with the policies of the International (sec 2, art 3) See also sec 10 of art 1 and sec 2(e) of art 3 which also give the general president broad authority over local unions 294 NLRB No. 61 SHEET METAL WORKERS LOCAL 91 (SCHEBLER CO) Metal Roofing, Ventilating and Air Conditioning Construction Industry, between Respondent Local Union and Illowa for the period June 1, 1985 through May 31, 1987. The work described is that undertaken by employees of Illowa employers and is limited by the geographical ju- risdiction of Respondent Local Union which extends to a number of counties in the Tri-State area Such recognition has been embodied in successive col- lective-bargaining agreements between Illowa and Re- spondent Local, the most recent of which is effective by its terms from June 1, 1985, through May 31, 1987. Shebler has recognized Respondent Local Union pursu- ant to this agreement and its predecessors. Winger is not technically a member of Illowa but it signs an agreement with the Respondent Local in which it agrees to be bound by the terms of the existing Illowa agreement At its 1982 convention the Respondent International adopted a policy, referred to as "Resolution 78," to assist signatory employers who bid for jobs in competition with nonunion employers, and "to insure survival of union contractors." Under this policy, the International urges local unions to grant signatory employers econom- ic relief from the terms of existing agreements The forms of relief include so-called "pin pointing," specialty agreements, industrial addenda, and maintenance agree- ments, all of which feature wage and benefit rates lower than the standard area agreement The record shows that signatory employers made re- quests to Respondent local for various forms of econom- ic relief from the terms of the standard area agreement. Since January 1985, Respondent Local has acceded to some of these requests and agreed to grant relief from the standard area agreement many times. It is also clear from the record that the Respondent Local has "com- plete authority" to grant or refuse to grant Resolution 78 relief. A signatory employer obtains Resolution 78 relief by making a request of Respondent Local which then de- cides whether to grant such relief in each case. For ex- ample, when a signatory employer seeks to bid on a spe- cific construction job with a nonunion competitor, the employer may obtain "pinpoint" relief by requesting ad- justments by the Respondent Local. The Respondent Local then formulates a modified wage and benefit pack- age on which the employer makes its bid and which would apply if the bid was successful When such "pin- point" relief is made available to one Illowa employer, the Respondent Local notifies Illowa and makes the same relief available to any other Illowa member who requests it for the particular job in question.3 3 Signatory employers may also request relief under an "industrial ad- dendum" where the contractor essentially manufactures items in a repeti- tive manner Apparently, no Illowa employers have negotiated an "indus- trial addendum," although Schebler attempted unsuccessfully to obtain such relief Another type of relief is the "industrial maintenance adden- dum" where an employer performs work within an industrial plant Some signatory employers, including Johnson Sheet Metal Co , apparently re- quested and obtained such relief from Respondent Local It is apparently also possible for an employer to obtain relief by requesting participation in the so-called national maintenance agreement Johnson Sheet Metal ob- tained such relief covering maintenance work performed at some facilities 767 In March 1985, Respondent International, through its general executive council, adopted a resolution aimed at preventing signatory employers with dual-made oper- ations, that is, operations with union and nonunion seg- ments also referred to as double-breasted operations, from taking advantage of the relief offered under Resolu- tion 78. Thus, the International ruled that Resolution 78 relief would not be made available to employers unless they agreed to the "Integrity Clause" set forth below. The Integrity Clause reads as follows: SECTION ONE: A "bad faith employer" for pur- poses of this Agreement is an Employer that itself, or through a person or persons subject to an owner's control, has ownership interests (other than a non-controlling interest in a corporation whose stock is publicly traded) in any business entity that engages in work within the scope of SFUA Article I hereinabove using employees whose wage pack- age, hours, and working conditions are inferior to those prescribed in this Agreement or, if such busi- ness entity is located or operating in another area, inferior to those prescribed in the agreement of the sister local union affiliated with Sheet Metal Work- ers' International Association, AFL-CIO in that area. An Employer is also a "bad-faith employer" when it is owned by another business entity as its direct subsidiary or as a subsidiary of any other sub- sidiary within the corporate structure thereof through a parent-subsidiary and/or holding compa- ny relationship, and any other business entity within such corporate structure is engaging in work within the scope of SFUA Article I hereinabove using em- ployees whose wage package, hours, and working conditions are inferior to those prescribed in this Agreement or, if such other business entity is locat- ed or operating in another area, inferior to those prescribed in the agreement of the sister local union affiliated with Sheet Metal Workers' International Association, AFL-CIO in that area Section Two: Any Employer that signs this Agreement or is covered thereby by virtue of being a member of a multi-employer bargaining unit ex- pressly represents to the Union that it is not a "bad- faith employer" as such term is defined in Section 1 hereinabove and, further, agrees to advise the union promptly if at any time during the life of this Agreement said Employer changes its mode of op- eration and becomes a "bad-faith employer." Fail- ure to give timely notice of being or becoming a "bad-faith employer" shall be viewed as fraudulent conduct on the part of such Employer. In the event any Employer signatory to or bound by this Agreement shall be guilty of fraudulent con- duct as defined above, such Employer shall be liable to the Union for liquidated damages at the rate of $500 per calendar day from the date of fail- of the Caterpillar Company Another form of relief is the so-called "decking and siding" specialty agreement The Respondent Local has no such agreements 768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ure to notify the Union until the date on which the Employer gives notice to the Union. The claim for liquidated damages shall be processed as a griev- ance in accordance with, and within the time limits prescribed by, the provisions of SFUA Article X. SECTION THREE: Whenever the Union becomes aware that an Employer has been or is a "bad-faith employer," it shall be entitled, notwithstanding any other provision of this Agreement, to demand that the Agreement between it and such "bad-faith em- ployer" be rescinded. A claim for recision shall be processed by the Union as a contract grievance in accordance with, and within the time limits pre- scribed under, the provisions of SFUA Article X of this Agreement. With a cover letter dated 22 March 1985, the Interna- tional's general president, Edward J. Carlough, and its general secretary-treasurer, Cecil D. Clay, sent copies of the general council resolution and the Integrity Clause to the business managers of all the International's affiliated local unions, including the officers of the Respondent Local. The cover letter stated: As a result of the Council's deliberations and action, the policy of this International Association concern- Ing "bad faith" contractors is that they must make a decision that they are either 100% union or 100% non-union. We will not attempt to play Mickey Mouse games that have too often proved to be futile to other unions in attempting to apply a union contract to the non-union entity of the "bad faith" contractor since this only delays the inevitable deci- sion of labor and management. We have ap- proached the problem with the scalpel of a surgeon and where we find cancer, we will excise it. The cover letter informed local unions that they should attempt to have the Integrity Clause incorporated into their collective-bargaining agreements. The letter continued: For those local unions that are not in negotiations this year, we are instructing you to tell your con- tractors' association to re-open its agreement and to place this language into the agreement. If the asso- ciation chooses not to re-open its agreement, as it has the legal right to do, you are directed to notify that association that you are no longer empowered to grant any relief under Resolution 78, to any con- tractor in that association. In the event that local contractors' association elects not to re-open its agreement for this purpose, you are authorized to re-open agreements with any independent who so chooses to do so, so' they may be afforded the competitive relief granted by Reso- lution 78 in your area. You shall give such relief without any regard for "most favored nations" clause that may appear in your local agreement. During the spring of 1985, Respondent Local pro- posed inclusion of the Integrity Clause in the negotia- tions for a new agreement with Illowa. Illowa refused to accept the Integrity Clause. The parties nevertheless reached a new agreement . In separate negotiations the Respondent Local was also unsuccessful in including the clause in the Winger agreement. Thereafter, several em- ployers, including Johnson Sheet Metal, accepted and agreed to the Integrity Clause. Representatives of Re- spondent Local made it clear that if the employers did not agree to the Integrity Clause, Respondent Local would not grant them economic relief under Resolution 78. As of the date of the hearing seven local contractors had signed the Integrity Clause. As indicated above, Winger initially refused to accept the Integrity Clause. However, in February 1986, repre- sentatives of Respondent Local informed Bernard Winger, the president of Winger, that Respondent Local would no longer grant Winger Resolution 78 relief, as it had done in the past. Winger again refused to accept the clause, but, after being denied several subsequent re- quests for Resolution 78 relief, it relented, and, on 10 April 1986, signed the clause in order to continue receiv- ing economic relief. In the summer of 1985, Schebler was also asked, indi- vidually, to accept the Integrity Clause as a condition for the grant of economic relief. Schebler refused because, according to its president, George Kertesz, Schebler would have been in violation of the clause by virtue of its affiliation with a nonunion contractor. The record shows the following with respect to Schebler's relationship with other employers in the con- struction industry: 63 percent of Schebler's stock is owned by a group of companies located in Minneapolis, Minnesota, known as the Egan Companies. Jerry Egan is president of the Egan Companies. He, but not Egan Companies, has an ownership interest in a Phoenix, Ari- zona enterprise called Egan-Ryan Mechanical Company, a mechanical contracting firm engaged in sheet metal construction. Egan-Ryan performs no work in Illinois or Iowa. Neither Schebler, Egan Companies, nor Egan- Ryan is publicly traded. The sheet metal employees of Egan-Ryan are not cur- rently represented by a union. On 11 February 1986, Sheet Metal Workers International Association, Local 359, based in Phoenix, Arizona, filed an election petition with the Board's Regional Office in Phoenix seeking rep- resentation of the Egan-Ryan sheet metal workers. The record does not reveal whether the election was held or any other information on the election petition which is designated as Case 28-RC-4315. Local 359 also unsuc- cessfully sought to obtain coverage of Egan-Ryan under the Minnesota-based labor agreement of a company called Egan and Sons Air Conditioning Co. A district court judge rejected the contention that Egan and Sons was a single employer with or the alter ego of Egan- Ryan. At the hearing in this case, Respondents' counsel stated as follows: "We are not certainly in defense making any contention that there is a[n] alter ego a single Employer kind of relationship between Egan and Son and Egan Ryan, or between Schebler Company." It is clear that, except for several isolated incidents, after some time in the summer of 1985, Respondent Local no longer granted employer requests for Resolu- SHEET METAL WORKERS LOCAL 91 (SCHEBLER CO) tion 78 relief unless that employer also agreed to adopt and sign the Integrity Clause. The Respondent Local took this approach pursuant to directions from Respond- ent International Throughout the summer of 1985 and thereafter, Schebler requested that Respondents grant it economic relief from the terms of the Illowa agreement. Respond- ents refused because Schebler would not sign the Integri- ty Clause. In August 1985, Schebler wrote to Respond- ent Local asking for a specialty agreement to secure new work. There was no response to this letter. Also in August 1985, Schebler wrote to the Respondent Interna- tional to request participation in the national maintenance agreement for work on which Schebler wanted to bid at Alcoa's Davenport, Iowa plant. Bids were to be submit- ted in the fall of 1985. Schebler received no response until March 6, 1986, long after the bidding had closed. In October 1985, Ray van Severen, an official of Schebler, requested economic relief in order to bid on a large job at a J. I. Case Company plant in Burlington, Iowa. Ken Martinez , then assistant business manager of Respondent Local, offered to reduce the journeyman- preapprentice ratio for that job. When Van Severen complained that the proposed relief was insufficient, Martinez replied that he was "sticking his neck out" in making the limited offer he did. On another occasion in the fall of 1985, John Churuvia Sr., then business manag- er for Respondent Local, visited George Kertesz at Schebler office. Churuvia showed Kertesz the general executive council resolution and the March 22, 1985 di- rective which Respondent Local had received from Re- spondent International . He explained that employers who would not sign the Integrity Clause would be considered bad-faith employers and would not receive any kind of relief. In January 1986, Churuvia told Kertesz that Schebler's problems might soon be over because there was an effort to organize Egan-Ryan. A short time later, International Representative Don Braeken spoke at a meeting com- posed of union and company officials at the union hall in Rock Island. Braeken told the group that the Internation- al would go to great lengths to make union employers competitive with nonunion employers. After the general meeting, Braeken met with officials of Respondent Local and Schebler. Kertesz explained that Schebler had always been a union contractor, that it had no direct af- filiation with the Phoenix operation, and that it was very interested in signing an industrial addendum . Braeken said he would look into the situation and see what he could do. On a number of other occasions during 1986, including several after May 1986, Churuvia and other officials of Respondent Local told Van Severen that Schebler would not receive economic relief unless it signed the Integrity Clause. In February 1986, Schebler bid on a job at the Pleas- ant Valley High School in Pleasant Valley, Iowa. Schebler formulated its bid on the basis of the wage and benefit package of the Illowa contract. Johnson Sheet Metal Works, which had signed the Integrity Clause, also submitted a bid on the job. Respondent Local grant- 769 ed Johnson Resolution 78 relief reducing the wage and benefit package cost and Johnson won the job By letter dated 8 July 1986 Schebler filed a contrac- tual grievance alleging that the grant of Resolution 78 relief to Johnson on the Pleasant Valley High School job violated the "most favored nations clause" of the Illowa labor agreement The so-called "most favored nations" clause in the Illowa agreement reads as follows. In the event the union enters into an agreement that contains more favorable terms or conditions the as- sociation will have the right to adopt said agree- ment immediately. On November 20, 1986, the grievance was denied by the National Joint Adjustment Board. The decision of the board states that there was no violation of the most- favored nations clause and that "Schebler did not specifi- cally request Resolution 78 assistance from either the Union or Illowa SMACNA for the Pleasant Valley School job." By letter dated 24 October 1986 Van Severen com- plained to Praet, with a copy to International Represent- ative George Schmitt, that Respondents' policy of deny- ing economic relief to Schebler had resulted in the loss of over 2000 hours of shop fabrication work to nonunion competition on a job that fall. Schmitt responded by letter, dated 5 November 1986, stating that "once Schebler Company guarantees Sheet Metal Workers ev- erywhere they are a 100 percent union contractor, then we will in return guarantee them our 100 percent coop- eration in making them competitive on every nonunion job they are bidding." Schebler filed the initial charge in the instant case in September 1986. Thereafter a complaint issued and the General Counsel sought and was granted a temporary in- junction under Section 10(1) of the Act by a United States district court pending the resolution of this case by the Board In early December 1986, officials of Schebler and Re- spondents arranged for meetings for the purpose of dis- cussing Schebler's request for an industrial addendum. The parties met on 8 and 9 December 1986; Braeken, Praet, and Kertesz were present at these meetings. The parties agreed on the terms of an industrial addendum which would also be available to other Illowa contrac- tors bidding on the work. However, the addendum would be available to Schebler only on the following conditions: ( 1) Respondent International association and its Phoenix local and the officials of Egan-Ryan reached agreement on representation of the Egan-Ryan employ- ees; and (2) Schebler withdrew the charges in the present case.4 4 The testimonial evidence in this case was essentially uncontradicted Praet, who was called as an adverse witness by the General Counsel, tes- tified about the Respondent Local's policy with respect to Resolution 78 relief and the Integrity Clause Braeken, who was the only witness called by Respondents, testified only about the December 1986 conditional agreement He acknowledged the agreement , but insisted that agreement on the Integrity Clause was not a condition for entering into the industri- al addendum This is consistent with the testimony of Kertesz on the matter 770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. Discussion and Analysis As more fully detailed below, I find that the Integrity Clause is unlawful under Section 8(e) and that, by agree- ing with Winger to adopt the clause, Respondent Local violated Section 8(e) I also find that Respondents did not violate Section 8(b)(3) by refusing to grant Schebler midterm contractual relief unless it also signed the Integ- rity Clause but that they did violate Section 8(b)(4)(ii)(A) by refusing to grant economic relief to Schebler while granting such relief to employers who signed the Integri- ty Clause because an object of such conduct was to force Schebler to sign the Integrity Clause. 1. The 8(e) allegation Section 8(e) makes it an unfair labor practice for a union and an employer "to enter into any contract or agreement, express or implied, whereby such employer . . . agrees to . . . cease doing business with any other person . . . ." A proviso privileges such agreements with an "employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure or other work. . Section 8(e) was intended to close certain loopholes in the secondary boycott provisions of Section 8(b)(4) and its language closely tracks that of Section 8(b)(4)(B). It thus prohibits agreements which condone future second- ary boycotts. As the Board has stated, perhaps "no lan- guage can be explicit enough to reach in advance every possible subterfuge of resourceful parties. Nevertheless . . . in using the term `implied' in Section 8(e) Congress meant to reach every device which, fairly considered, is tantamount to an agreement that the contracting employ- er will . . . cease doing business with another person." Lithographers Local 78 (Miami Post), 130 NLRB 968, 976 (1961), enfd. as modified 301 F 2d 20 (5th Cir 1962) Although Section 8(e) can be literally read to forbid all agreements which prevent an employer from estab- lishing a business relationship with another person or cause it to terminate or alter an already existing relation- ship, it has not been so construed. Thus, the Board has approved clauses whose main purpose is to protect the jobs customarily performed by unit employees. Because a union has a legitimate primary interest in preserving unit work for unit employees and in ensuring that negotiated employment standards will not be undermined, a union may negotiate work preservation and union-standard clauses despite their incidental effect of limiting the group of persons with whom the primary employer may do business. Associated General Contractors, 280 NLRB 698 (1986). However, contractual clauses whose main purpose is to serve the institutional interest of the union to organize or regulate the labor policies of employers with whom the union does not have a collective-bargaining relation- ship are unlawful under Section 8(e) because they are secondary in character and not aimed at preserving unit work or standards. Thus, the Board's inquiry is whether the contract clause at issue has the "primary purpose of protecting unit work or unit standards" or, instead, the secondary purpose of promoting the broader goals of the union "by asserting control over the labor relations" of other employers. Ibid. See also Food & Commercial Workers Local 1442 (Ralph's Grocery), 271 NLRB 697 (1984). As the Supreme Court has stated, the touchstone of Section 8(e) is whether the agreement is addressed to "the labor relations of the contracting employer vis-a-vis his own employees" or whether it is "tactically calculat- ed to satisfy union objectives elsewhere." National Wood- work Manufacturers, 386 U.S 612, 644-645 (1967). Applying the principles set forth above, I find that the Integrity Clause is an agreement whose main purpose is not the preservation or protection of unit work but rather the satisfaction of union objectives elsewhere. It is thus secondary in nature, attempting to influence the labor relations of nonsignatory employers in work units far removed from the contractual unit. Accordingly, I find that when Respondent Local agreed with Winger- and other employers-to adopt the Integrity Clause, it violated Section 8(e) of the Act. The Integrity Clause The question of whether the Integrity Clause has a work preservation purpose must be answered first by ref- erence to the unit at issue. The contractual work unit in this case is described in the Illowa agreement broadly en- compassing sheet metal work including its manufacture, maintenance, and fabrication-in the geographical juris- diction of Respondent Local. Although Winger ordinari- ly signs a separate agreement with Respondent Local, its terms, including the unit description, are the same as those of the Illowa agreement. Thus, the unit in this case includes employees of Winger who operate within the geographical jurisdiction of Respondent Local and per- form the sheet metal work described in the Illowa agree- ment. The Integrity Clause is not limited to protecting bar- gaining unit work There was no attempt to limit the clause to work in the Winger or Illowa unit. Indeed, Re- spondents do not even allege a work preservation de- fense in this case. The Integrity Clause was crafted by Respondent International and implemented by Respond- ent Local to meet a perceived threat from nonunion con- tractors nationwide. The simple solution to such a threat from the perspective of a union would be to organize the workers of the nonunion contractors. It appears, howev- er, that Respondent wanted an easier method-a short cut. They wanted to pressure their own union contrac- tors to the extent that these contractors were affiliated with nonunion entities. The difficulty here is that, unless there is evidence that unit work is being protected, unions may not pressure union employers to bring other entities into the union fold. The Integrity Clause requires that the signatory em- ployer force related firms or affiliates5 to grant employ- ees the wages, hours, and working conditions of union agreements under penalty of having its own union agree- ment rescinded. The plain words of the clause force a 5 I shall use the terms related firms and affiliates to refer to the firms with whom the employer has an ownership interest, either directly or as a parent or subsidiary, within the meaning of the Integrity Clause SHEET METAL WORKERS LOCAL 91 (SCHEBLER CO) cessation or alteration of business with the related firm. It is well settled that the "cease doing business" language of Sections 8(e) and 8(b)(4) does not require a total ces- sation of business. An alteration of or in reference with the business relationship is sufficient. See Longshoremen ILA Local 1410 (Mobile Steamship), 235 NLRB 172, 179 (1978), and cases there cited. Here, the clause requires the employer to use its influence to cause the related firms to change their nonunion operation or their wage and benefit package. Alternatively, the clause requires the employer to change its own affiliation with the relat- ed firm. The purpose and effect of the clause is thus to alter the business relationship between the employer and its related firms. And since the price for failing to comply is loss of continued union representation, there can be no doubt that the clause requires the employer to engage in a secondary boycott. Using such methods for an unlawful purpose is clearly coercive. See Ets-Hokin Corp., 154 NLRB 839, 842 (1965), enfd. sub nom NLRB v. Electrical Workers IBEW Local 769, 405 F.2d 159 (9th Cir 1968), cert. denied 395 U.S. 921 (1969). The "cease doing business" proscription of Section 8(e) also requires that the altered relationship between "Persons." Thus, Respondents might have posited the ar- gument-which they did not-that the relationship be- tween the employers and related firms is that of a single employer. In that case, the Respondents' concern argu- ably might have been limited to bargaining unit work which would have been primary rather than secondary. However, it is incumbent on the party making such an argument to establish that the related entities constitute a single employer within the meaning of the Act See Car- penters (Baxter Construction), 201 NLRB 23 (1973). The factors which normally govern single employer status are common management, centralized control of labor relations, interrelation of operations and common owner- ship. Radio Union Local 1264 v. Broadcast Service, 380 U.S 255, 256 (1965). However, ownership alone is not determinative. Separate divisions of the same corporation have been held to be separate "persons" within the meaning of the secondary boycott provisions of the Act See Newspaper Guild (Los Angeles Herald), 185 NLRB 303, 304 (1970), enfd. 443 F.2d 1173 (9th Cir. 1971). Indeed, even where the two entities constitute a single employer, there must still be an inquiry into whether there is a single appropriate unit for bargaining purposes. See South Prairie Construction Co. v. Operating Engineers Local 627, 425 U S. 800, 803-804 (1976). The Integrity Clause as written is not limited to influ- encing the relationship between entities which come within the single employer definition. It is written so broadly that it permits an interference with business rela- tionships with other "persons" who are not single em- ployers. The Integrity Clause requires the signatory em- ployer's affiliate to abide by the terms of a union agree- ment if it does sheet metal work of the type set forth in the standard agreement. But that affiliate need not meet the requirements of common management, centralization of labor relations, or interrelation of operations which are part of the single employer doctrine. The Integrity Clause requires only that the signatory employer have a limited ownership interest in the affiliate which must 771 then apply union terms and conditions. Since the Integri- ty Clause seeks to influence the labor relations of persons or entities who are not part of the single employer that is signatory to the clause, it reaches beyond the Illowa unit or, more precisely, the Winger unit. Moreover, the clause explicitly seeks union conditions in all sheet metal workers' units wherever they are located. Thus, even without regard to single employer status, the clause is not limited to work in the Winger or even the Illowa unit. There can be no doubt, in these circumstances, that the object of the clause is not the preservation of Illowa or Winger unit work but the attainment of objectives elsewhere-with other employers or persons and in other work units. This is the classic 8(e) clause condemned in the Woodwork case. Even if it could be determined that the Integrity Clause was somehow ambiguous in meaning, the extrin- sic evidence as to the purpose of the clause makes it clear that it was intended to affect the labor relations of other entities than Winger or other contracting parties. See Operating Engineers Local 701 (Lease Co.), 276 NLRB 597, 600 (1985). Officials of Respondent Interna- tional, which was responsible for drafting the clause, stated that the purpose of the clause was to force con- tracting employers to become "either 100% union or 100% non-union." The Integrity Clause makes it clear that the "100%" included not only the contracting em- ployers but all nonunion entities within a broadly phrased corporate structure or within the ownership control of a contracting employer or its owner. Accord- ingly, there can be no doubt that the purpose of the In- tegrity Clause was to promote union recognition in all units operated by the contracting employer even if those units could be legitimately defined as single employer units and could constitute separate units of separate "per- sons " It is also open to argument-again one not advanced by Respondents-that the clause simply protects union standards, that is, if the related firms paid union wages it would not be necessary for them to also sign union agreements. Similar clauses are found to be lawful in other contexts subcontracting, for example, because they conceivably protect unit work However, the instant clause refers specifically to the wages, hours, and condi- tions of union agreements. Thus, it is clear that if the re- lated firms comply with the wages, hours, and conditions of a union agreement they are in fact adopting a union agreement To the extent, however, that there is any doubt as to what Respondents meant by this particular language, that doubt is resolved by reference to Re- spondents' explanation for the clause They wanted em- ployers to be 100 percent union. Thus, even if the related firms simply paid union wages and benefits the Respond- ents would not be satisfied. They wanted union represen- tation across the board. This is the equivalent of requir- ing union signatory clauses which are of course unlaw- ful. See Food & Commercial Workers Local 1442 (Ralph's Grocery), 271 NLRB 697 (1984) In sum, the clause itself as well as the explanatory ma- terial supplied by Respondent International, and acted on by Respondent Local, make it quite clear that Respond- 772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ent Local did not seek to influence matters within the bargaining unit when it secured Winger's agreement to the Integrity Clause. The Respondents sought to prevent Winger from ever affiliating with a firm which operated nonunion. Thus, they sought not to regulate matters of unit concern but to satisfy union objectives elsewhere- in the separate employee units of such nonunion entities wherever they might be located. The Respondents argue that the Integrity Clause simply requires signatories to supply "information on which the union may base its decision whether to enter into or continue to maintain a collective bargaining rela- tionship." There is no doubt that unions are entitled to certain information from employers with whom they have bargaining relationships. The information must of course have some relevance to the bargaining relation- ship. Thus, a union would be entitled to information from which it could determine that a single employer re- lationship existed between the employer and another entity or from which it could determine whether unit work was being siphoned off to another completely un- related entity. See, e.g., NLRB v. Leonard B. Hebert & Co., 696 F.2d 1120, 1124 (5th Cir. 1983); Walter N. Yoder & Sons, 270 NLRB 652 (1984); Hawkins Construction Co., 285 NLRB 1313 (1987). Although section 2 of the Integ- rity Clause-the information section-has rather strin- gent penalties for noncompliance, standing alone, this section would not establish a secondary object. But taken together with the remainder of the clause, and in con- junction with the contemporaneous explanation of the clause, it is clear that the information section is merely part of an overall effort to require the signatory employ- er to change the operations of its related entities under penalty of contract rescission. Contrary to Respondents' suggestion, the contract rescission penalty is imposed not for failing to supply information. That invokes different and separate penalties. Rather, the contract rescission penalty is imposed if the information supplied reveals a disfavored double-breasted operation. Thus, the clause does much more than simply ask for information. It seeks to apply secondary pressure on signatory employers to satisfy union objectives elsewhere. The Construction Industry Proviso Although Winger and perhaps other employers who signed the Integrity Clause are in the construction indus- try, Respondents explicitly disavow any contention that the Integrity Clause is privileged under the construction industry proviso of Section 8(e). (See Br. p. 30.) In this posture of the case I must find that Respondents have waived any defenses based on application of the con- struction industry proviso. Nevertheless, I shall make a fording that the Integrity Clause is not within the proviso. The Board has consist- ently "held to a narrow definition of jobsite work when evaluating contractual provisions on a case by case method." Teamsters Local 42 (Irvine-Santa Fe), 248 NLRB 808, 815 (1980). Thus, the proviso does not extend to offsite work merely because it could be done at the site. See Carpenters (Cardinal Industries), 136 NLRB 977, 988 (1962). The record evidence is scant on this point. However, it appears to me that the Integrity Clause does not relate solely to the "contracting or subcontracting of work to be done at the site of the construction, alteration, or repair of a building, structure or other work" within the meaning of the proviso. The Integrity Clause does not specifically refer to contracting or subcontracting or mention on-site construction work, unlike the valid sub- contracting clause which appears elsewhere in the Illowa agreement . That clause (art. II of the standard agree- ment) would violate Section 8(e) but for its reference to on-site construction work. Thus, the absence of any such limitation in the Integrity Clause suggests that it is not so limited. More importantly, when the Integrity Clause does refer to work covered therein, it refers to article I of the standard agreement which describes unit work. Article I covers, but is "not limited to," a lengthy de- scription of sheet metal work including its "manufacture fabrication, assembling, handling, erection, maintenance ... repairing and servicing." The description of covered work goes well beyond what could reasonably be con- sidered on-site construction work. Indeed, the record in- dicates that some Illowa employers have the capacity to and do perform maintenance and fabrication work in an industrial setting. And Respondents have the authority to and do enter into specialty, industrial, and maintenance addenda which cover nonconstruction site work. Signifi- cantly, Business Manager Praet testified that if a signato- ry employer manufactures a great number of items cov- ered under the standard agreement and does not secure an industrial addendum, it must apply the wage rates of the standard agreement. In these circumstances, I find that the Integrity Clause does not satisfy the construction industry proviso.6 2. The 8(b)(3) allegation The General Counsel contends that Respondents vio- lated Section 8(b)(3) by "making the Integrity Clause a condition for reaching agreement on economic relief." More precisely, the complaint alleges that Respondents violated Section 8(b)(3) by demanding as a "condition of 6 In view of my finding that the Integrity Clause does not relate solely to on-site construction work, I need not reach two other issues which might have been presented here The first is whether , assuming that the double-breasting prohibition of the Integrity Clause is limited to contract- ing or subcontracting at a construction jobsite, it has been negotiated in the context of a collective -bargaining relationship where the clause seeks to regulate not only work in the Winger or Illowa unit but also work in all other units where sheet metal work is performed To a certain extent resolution of this issue turns on whether Congress intended to protect such clauses when it enacted Sec 8 (e) See Woelke & Romero Framing v NLRB, 456 U S 645 (1982), approving as within the proviso a subcon- tracting clause negotiated in the context of a collective-bargaining rela- tionship even when not limited in application to particular jobsites at which both union and nonunion workers are employed The second issue is whether, even assuming the clause were privileged by the proviso, its enforcement mechanism is coercive See Plumbers Local 16 (Jamco Devel- opment), 277 NLRB 1281 (1985) (contract rescission is unlawful self-help to enforce an 8(e) clause that would otherwise be lawful under the con- struction industry proviso), Los Angeles Building Trades Council (Donald Shriver), 239 NLRB 264, 270 (1978), enfd , 635 F 2d 859' (D C Cir' 1980) (contract procedures unlawfully permitted strikes in support of otherwise valid clause) I will leave resolution of these issues to another day with respect to another clause. SHEET METAL WORKERS LOCAL 91 (SCHEBLER CO) any supplemental agreement with Schebler that Schebler agree to be bound by the Integrity Clause" and by "re- fusing to bargain over Schebler's request for a supple- mental agreement." The General Counsel asserts that a union violates Section 8(b)(3) by insisting to impasse that an employer sign a contractual clause which is prohibit- ed by Section 8(e) and, in support of the assertion, cites two cases, Operating Engineers (York County Bridge), 216 NLRB 408 (1975), enfd. 532 F 2d 902 (3d Cir. 1976), cert. denied 429 U.S. 1072 (1977), and Bricklayers Local 5 (Muskegon Contractors), 152 NLRB 360 (1965), enfd. as modified 378 F 2d 859 (6th Cir. 1967). Neither the principle nor the cases advanced by the General Counsel are applicable to the situation here. In York and Muskegon, the unions engaged in strikes and picketing to force adherence, to the unlawful clause during negotiations for a new agreement. They thus in- sisted on agreement to the unlawful clause as the price for any agreement. In this context, the Board, York and Muskegon, found that the unions had bargained in bad faith It is, of course, well settled that a party violates its bargaining obligation by refusing to enter into any agree- ment unless the other party agrees to a nonmandatory subject of bargaining. See Borg-Warner Corp., 356 U.S. 342, 349 (1958); NLRB Y. Sheet Metal Workers Local 38, 575 F 2d 394, 397-398 (2d Cir. 1978). In contrast, the instant case does not involve strikes or picketing. Nor did Respondents refuse to enter any agreement with Schebler as the price for the Integrity Clause which all parties concede was not a mandatory subject of bargaining. The parties were not bargaining for a new agreement; they already had an existing agree- ment Indeed, Respondents were simply responding to Schebler's request for relief during the midterm of an ex- isting agreement There was thus no general bargaining obligation on the part of Respondents. See Section 8(d) of the Act and Connecticut Light & Power Co., 271 NLRB 766 (1984). Nor were the parties proceeding under the terms of a valid reopener clause. See La Porte Transit Co., 286 NLRB 132 (1987). In this respect I agree with the Respondents that Con- necticut Light & Power, supra, appears to support their position. In that case, the Board held that employers who offered a midterm modification of a contract with no reopener clause were not obligated to bargain simply because they made such an offer. The employers offered to increase shift premium pay for unit employees if the union agreed; the union asked to bargain but the employ- ers refused and withdrew their offer. The union alleged a refusal to bargain, but the Board disagreed, holding that Because the employers "had no obligation to make the offer, and making the offer was not unlawful, they could not incur an additional bargaining obligation by tender- ing it . Consequently , their refusal to bargain about the offer did not violate the Act." Id at 767. I can see no legal distinction between the principle enunciated in the Connecticut Light & Power case and that applicable here. Indeed, this case appears to be a stronger one for dismissal because Respondents were not the initiating parties. Schebler sought to alter the existing multiemployer contract. Respondents had no obligation to agree to such midterm alteration they simply said that 773 they would agree if Schebler agreed to the Integrity Clause. A union does not necessarily violate the Act by simply proposing or bargaining about a clause violative of Section 8(e) Bargaining might well lead to a more narrowly drawn clause that either has no secondary pur- pose or comes within the construction industry proviso. And the employer may reject the clause outright. For example, when Respondent Local proposed the Integrity Clause during the most recent regular Illowa negotia- tions, Illowa rejected the proposal and the parties never- theless reached a new agreement. In any event, Because the Respondents had no obligation either to bargain or to accede to Schebler's request for midterm modification of the contract, there could be no bargaining to impasse of the type which was condemned in York and Muskegon. The General Counsel seeks to distinguish Connecticut Light & Power on the ground that the most-favored-na- tions clause in the Illowa agreement operated as a re- opener. It is true that the Illowa agreement has a most- favored-nations clause which states that, "in the event the union enters into an agreement that contains more fa- vorable terms or conditions the association will have the right to adopt said agreement immediately." However, that use does not operate as a reopener. Reopeners are covered under addendum number 23 which states as fol- lows: MUTUAL REOPENING OF CONTRACT No. 23. The only means of reopening the con- tract during its tenure shall be as follows: 1. In the event the Sheet Metal Workers Interna- tional Association and the Sheet Metal and Air Conditioning National Contractors Association enter into any agreement on the national level, that this contract shall be considered automatically open to discuss this item only. If parties cannot agree on a change, the contract will nevertheless continue in accordance with its terms. 2. Whenever there is a mutual agreement on the part of the Employers and the Union, the contract shall be considered open for discussion on a specific item or items only If parties cannot agree on a change, the contract will nevertheless continue in accordance with its terms. The reopener clause is thus narrowly drawn and does not require the Respondents to reopen the contract for any particular member of the employer association. In her brief, the General Counsel also asserts that "Re- spondent's unilateral change of past practice and repudi- ation of its obligation under the most favored nations clause, without bargaining and without agreement of the employer violated Section 8(b)(3). The General Counsel seems to be asserting two separate theories of violation, neither of which was specifically alleged in the Com- plaint. The first argument-which is also asserted as a basis for distinguishing Connecticut Light & Power-seems to be that Respondents unilaterally changed their past prac- tice of granting relief to all signator employers under Resolution 78. To the extent that this argument implies 774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that such past practice has become a term and condition of employment that argument is without merit. Resolu- tion 78 was not embodied in any collective-bargaining agreement. Moreover, contrary to General Counsel's suggestion, Resolution 78 relief was never granted in all cases as a matter of right. That relief was tailored to spe- cific circumstances and it is clear that Respondents had the absolute authority to grant or reject such relief on re- quest. Thus, Respondents' past practice cannot be analo- gized to an employer's nondiscretionary grant of bene- fits. Compare NLRB v. Katz, 369 U.S. 736, 743 (1962), and Eastern Maine Medical Center v. NLRB, 658 F.2d 1, 8-9 (1st Cir. 1981). The General Counsel's unilateral change argument also appears to be an effort to change the theory of violation set forth in the complaint. If the alleged violation is now the Respondents' change in policy from granting eco- nomic relief in all cases to granting it only if employers signed the Integrity Clause that theory should have been specifically alleged. It was not and the issue was not fully litigated. Because this theory was not specifically alleged, the Respondents were unable to raise what argu- ably might be a significant defense. If the gravamen of the violation were the change in policy, the 10(b) statute of limitations would run from the date of the change. At the very latest, the affected employers, including Schebler, knew of this change in policy in the summer of 1985. Yet the charge in this case was not filed until the fall of 1986. Thus, I do not believe it would be fair to consider the General Counsel's change of policy theory. See Consolidation Coal Co., 277 NLRB 545 (1985). In any event, even on the merits, the General Coun- sel's new theory is of questionable validity. As I have stated, the past practice which Respondents allegedly changed unilaterally was not a contract term. Thus, there could be no violation of Section 8(b)(3) on this basis. Compare Painters Local 9 v. NLRB, 453 F.2d 783, 787 (2d Cir. 1971). The General Counsel's second argument seems to be that Respondents violated the most-favored-nations clause of the Illowa contract. This too was not specifi- cally alleged in the complaint. Nor was the matter fully litigated. Respondents thus were unable to submit evi- dence specifically addressed to the theory that they vio- lated the most-favored-nations clause. Indeed, there is little, if any, evidence in this case as to the meaning of the clause. The only evidence of a grievance under this clause is that of Schebler's grievance alleging that Re- spondents' grant of economic relief to Johnson violated the most-favored-nations clause. That grievance was re- jected by a joint employer-union body with unreviewa- ble and final authority to resolve grievances under the contract. The decision states that there was no violation of the most-favored-nations clause. Presumably, this sug- gests that before, a violation occurs a specific request must be made to both the Union and Illowa. In any event, the Board's deferral policy would arguably limit Schebler's attempt to have the Board resolve the same dispute in an unfair labor practice context. See Olin Corp., 268 NLRB 573 (1984). However, in the absence of timely notification of the General Counsel's new theory, Respondents were unable to posit this defense. Accord- ingly, I must reject the General Counsel's belated effort to expand the complaint to include a contract violation theory. In any event, I am not convinced that Respondents violated Section 8(b)(3) by breaching the the most-fa- vored-nations clause in the Illowa agreement. That clause does not appear to create an obligation on the part of Respondent to grant midterm contractual relief. Nor does it say, in so many words, that a union cannot offer more favorable terms to some employers and not others. At most it creates a right in the multiemployer associa- tion-not necessarily the individual members-to adopt the more favorable terms in any agreement Respondent Local might enter into. If, indeed, the association or Schebler have a right to "adopt said agreement immedi- ately," they are free to assert that right, as Schebler tried unsuccessfully to do, by enforcing the contract. As I have indicated, there is really no significant record evi- dence concerning the meaning of the most-favored-na- tions clause. The record contains evidence that Respond- ent Local notified Illowa when "pinpoint'%, relief made available to an Illowa employer and that such relief was also made available to other members who requested it for the same job. It is not clear, however, that this was done pursuant to the most-favored-nations clause. The decision on the Schebler grievance, however, strongly suggests that there was no violation here. Moreover, the executive secretary of Illowa testified that Respondents had complete authority to grant or deny midterm con- tractual relief. Not every alleged violation of a contract constitutes an unlawful refusal to bargain, and, since the evidence on the issue in this case is inconclusive at best, a finding that Respondents violated Section 8(b)(3) breaching the most-favored-nations clause would be un- warranted. See NCR Corp., 271 NLRB 1212, 1213 (1984).' In her opening brief the General Counsel specifically seeks to amend the complaint to allege that Respondents violated Section 8(b)(3) by conditioning the grant of an industrial addendum to Schebler upon Schebler's with- drawal of the charges in this case. Under Section 102.17 of the Board's Rules and Regulations, complaint amend- ments may be permitted "upon such terms as may be deemed just." See Green Construction, 271 NLRB 1503 (1984) (posthearing motion to amend); Seward Interna- tional, 270 NLRB 1034 (1984) (motion to amend late in the hearing). I do not believe that, in the circumstances of this case, a posthearing amendment would be "just." First of all, the evidence shows that the parties met after the initial charge was filed and a complaint had issued. At this meeting the parties worked out an ar- rangement which provided for the grant of an industrial addendum to Schebler, provided further that Egan-Ryan would recognize the Phoenix local and that charges in 7 In view of the evidence discussed above with respect to Respondents' complete authority to grant or reject requests for midterm contractual relief and the questionable applicability of the most-favored-nations clause, I also find that the General Counsel has not shown that Respond- ents clearly and unmistakeably waived their contractual and statutory rights not to grant midcontractual relief to Schebler See Metropolitan Edison Co. Y NLRB, 460 U S 693, 707-708 (1983), LaPorte Transit Co, 286 NLRB 132 (1987) SHEET METAL WORKERS LOCAL 91 (SCHEBLER CO) 775 the instant case would be withdrawn. All witnesses agreed that the arrangement was not contingent on Schebler signing the Integrity Clause It seems obvious to me that the parties were undertaking settlement dis- cussions at the time. The Egan-Ryan dispute was the subject of proceedings at the Board's Regional Office in Phoenix and in court; Schebler had filed a charge and the General Counsel had issued a complaint in the instant case Thus, evidence concerning the proposed withdraw- al of charges would ordinarily not be admissible for ob- vious policy reasons. Fed. R. Evid. 408; and see Contee Sand & Gravel Co., 274 NLRB 574 fn. 1 (1985); Central Storage & Transfer Co., 263 NLRB 806 fn 2 (1982) Re- spondents did not object to the testimony on this ground, no doubt because they were unaware of the fact that it would be alleged to constitute a separate violation of the Act. Nor did they have the opportunity to explain through witnesses the full context of the proposed with- drawal of charges Respondents' only witness in this case testified essentially that the meeting did not specifically deal with the Integrity Clause which at the time was the focus of the complaint. The turn the focus of this case instead on the proposed withdrawal of charges would address a matter which was not closely related to the issues alleged in the complaint. See Carpenters Local 720 (Stone & Webster), 274 NLRB 1506 (1985). In these cir- cumstances, I do not believe it would be "just" to permit an amendment to the complaint at this stage of the pro- ceedings. Even assuming, however, that the amendment were permitted, I am not convinced that the Respondents' conduct was violative of Section 8(b)(3). As I have indi- cated, the meeting dealt with at least three pending mat- ters of litigation. In addition, Schebler had just been noti- fied that its grievance over the Pleasant Valley School job had been denied. The grant of the industrial adden- dum was thus so interwoven with settlement discussions that I cannot find that Respondents bargained in bad faith by asking for withdrawal of the charges. There was an existing agreement with Schebler-at least with Illowa, and there was no obligation under Section 8(d) or the Illowa agreement to grant midterm contractual relief. At most, Respondents "in contemplation of agree- ment . . sought a broader agreement which would re- solve all matters in dispute-a tack not unusual in con- cluding labor management disputes." Inner City Broad- casting Corp., 270 NLRB 1230, 1233 (1984).8 3. The 8(b)(4)(ii)(A) allegation The General Counsel asserts that Respondent violated Section 8(b)(4)(ii)(A) by conditioning the grant of eco- nomic relief on Schebler's signing the Integrity Clause. That section makes it an unfair labor practice for a union: 9 Schebler argues still another theory, namely that Respondents violat- ed See 8(b)(3) by engaging in individual bargaining with members of a multiemployei association contrary to their obligation to bargain on a multiemployer basis This theory is not in the complaint and the issue was not fully litigated More importantly, the charging party may not alter or amend a Complaint on its own initiative Thus, I cannot consider this theory of violation See Suburban Transit Corp, 276 NLRB 15, 26 (1985) To threaten, coerce, or restrain any person engaged in commerce . . . where . . . an object thereof is ... forcing or requiring an employer to enter into an agreement which is prohibited by section 8(e). The term "coercion" under this Section of the Act has been defined as encompassing "non-judicial acts of a compelling or restraining nature, applied by way of con- certed self-help consisting of a strike, picketing, or other economic retaliation or pressure in a background of a labor dispute." Sheet Metal Workers Local 418, 235 NLRB 144, 146 (1978), quoting from Ets-Hotkin, supra, 154 NLRB at 842. Economic retaliation has included such conduct as refusing to execute a collective-bargain- ing agreement or to refer workers. Local 418, supra. Resort to the courts, however, although a "somewhat coercive act," does not ordinarily "constitute the sort of coercion that Congress intended to make unlawful." Car- rier Air Conditioning v. NLRB, 547 F 2d 1178, 1191 (2d Cir. 1976). Thus, court enforcement of an unlawful 8(e) clause "should not be considered § 8(b)(4)(ii) coercion." Id. at fn 15. However, the imposition of monetary fines or penalties-even under a collective-bargaining agree- ment-may constitute coercion. Id. at 1192-1193 See also Operating Engineers Local 12 (Acco Construction), 204 NLRB 742, 756-757 (1973), enfd. 511 F.2d 848, 852 (9th Cir. 1975).9 The General Counsel equates Respondents' conduct here with the monetary penalty cases. Thus, she argues that, by granting economic relief to some employers and denying it to Schebler, Respondents engaged in "eco- nomic retaliation or pressure" which amounted to "coer- cion" under Section 8(b)(4)(ii). I agree.10 The General Counsel relies on Carpenters Local 742 (J. L. Simmons Co.), 237 NLRB 564 (1978), in which the union suggested that, in lieu of a work stoppage, it would accept premium pay as a condition for installing premachined doors on a construction project, conduct which was found to have a secondary object In that case, the Board stated as follows: Consideration of the Union's subsequent premium pay proposal does not cause us to reach a different result. In the first place, there is no evidence that the Union at any time abandoned its objective of keeping precut doors off the construction project by pressuring Simmons in the expectation that it could thereby force the Hospital Association to change its manner of doing business or force Sim- mons to terminate its contract with the Association Further, the proposal itself is coercive in that it either penalizes Simmons for continuing to do busi- I In some circumstances the filing or contractual enforcement of a grievance may constitute coercion See Teamsters Local 705 (Emery Air Freight), 278 NLRB 1303 (1986), Longshoremen ILWU Local 32 (Weyer- haeuser Co), 271 NLRB 759 (1984), enfd 773 F 2d 1012, 1018-1019 (9th Cir 1985) The issue of whether handbilling may constitute coercion is presently pending in the Supreme Court DeBartolo Corp v Florida Gulf Coast Building Trades Council, 108 S Ct 1392 (1988) 10 Respondents offered no defense to the 8(b)(4)(u)(A ) allegation in their brief other than to allege that the Integrity Clause was not violative of Sec 8(e) 776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ness with the Hospital Association in accordance with their agreement, by having to absorb premium pay costs, or forces Simmons to seek contract re- negotiation, with. its inherently coercive impact, in order to avoid such additional costs. We therefore view the premium pay proposal as no more than a substitution of one form of economic pressure for another, undertaken with at least one objective which remains constant; namely, to influence the Hospital Association by inducing Simmons to cease doing business with it. compatible with Connecticut Light & Power in view of Respondents' right not to grant midterm contractual relief. I I There is of course no doubt that an object of Respond- ents' conduct was to force Schebler to sign the Integrity Clause. Accordingly, I find that, by denying economic relief to Schebler unless it agreed to the Integrity Clause while granting such relief to other employers who signed the Clause Respondents engaged in coercion to force Schebler to sign an unlawful 8(e) clause in violation of Section 8(b)(4)(ii)(A). Id. at 565. See also Painters Local 829 (Theatre Tech- niques), 267 NLRB 858, 863 (1983), enf. denied on other grounds 762 F.2d 1027 (D.C. Cir. 1985). In the instant case, Respondents grant of economic relief to some employers and not to Schebler based on agreement to the Integrity Clause was coercive. Thus, Respondents exacted the equivalent of a monetary penal- ty from Schebler when they denied Schebler the same discount on wages and benefits that they granted other employers who had signed the Integrity Clause. Schebler was faced with a dilemma: if it signed the Integrity Clause it ran the risk of having Respondents cancel the existing agreement, an obviously coercive act, and of violating Section 8(e); if it declined, as it did, it faced the loss of business to competitors who had been granted economic relief by Respondents. That economic loss was real, as the evidence here clearly shows. I therefore find that Respondents' conduct in refusing to grant economic relief to Schebler while granting it to other employers who had signed the Integrity Clause constituted "coer- cion" within the meaning of Section 8(b)(4)(ii). I recognize that Respondents were not obligated under Section 8(d) to grant midterm contractual relief to Schebler and that Respondents did not violate Section 8(b)(3) of the Act by refusing to grant such relief. But this does not insulate Respondents from a finding that their conduct was coercive within the meaning of the Act. The gravamen of the violation of Section 8(b)(4)(ii) is the different treatment of Schebler not the denial of relief per se. Respondents had no obligation to grant midterm contractual relief, but when they did so based on whether an employer signed the Integrity Clause, they risked coercing those, like Schebler, who decided not to join them in violating Section 8(e). Thus, I do not believe that my finding of coercion under Section 8(b)(4)(ii) is inconsistent with my finding that Respond- ents did not violate Section 8(b)(3). Had Respondents struck or picketed in order to force Schebler to sign the Integrity Clause, there would be no doubt that the con- duct would be found to be coercive. Likewise such coer- cion would have gone a long way toward a finding that insisting on an 8(e) clause in negotiations for a new agreement was violative of Section 8(b)(3). See York and Muskegon, supra. However, the finding of coercion in this case does not require a finding that Respondents vio- lated Section 8(b)(3). Coercion is not necessarily an ele- ment in an 8(b)(3) or an 8(a)(5) violation. The Board has not specifically ruled that all acts of coercion in attempt- ing to obtain 8(e) clauses constitute per se violations of Section 8(b)(3). Nor would such a fording in this case be CONCLUSIONS OF LAW 1. By entering into and maintaining in effect an agree- ment with Winger which contained the Integrity Clause, Respondent Local Union has violated Section 8(e) of the Act. 2. By denying economic relief to Schebler unless it agreed to the Integrity Clause while granting such relief to other employers who did sign the Integrity Clause, Respondent Local Union and Respondent International coerced Schebler to sign the Integrity Clause in violation of Section 8(b)(4)(ii)(A). 3. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. Respondents have not, as alleged in the complaint, violated Section 8(b)(3) of the Act by denying Schebler midterm contractual relief unless Schebler signed the In- tegrity Clause. REMEDY Having found that Respondents engaged in certain unfair labor practices, I shall recommend the issuance of an order directing them to cease and desist therefrom and to take certain affirmative action designed to effectu- ate the policies of the Act. Because the simple posting of a notice may not adequately inform employers or affili- ated local unions that the Integrity Clause is unlawful under Section 8(e) and that Respondents may not use co- ercion in order to force employers to agree to the Integ- rity Clause, I shall also recommend that Respondent Local be ordered to mail a copy of its notice to all signa- tory employers within its jurisdiction and that Respond- ent International be ordered to mail a copy of its notice to all employers who may be signatory to agreements di- rectly with it and, in view of the control the Internation- al has over local unions, to all local unions affiliated with it. The mailing requirement for Respondent International I I The General Counsel asserts that both Respondent International and Respondent Local have violated Sec 8(b)(4)(i)(A) I agree. The evidence in this case clearly shows that Respondent International directed and par- ticipated in the unlawful coercion of Schebler Officials of Respondent Local acted pursuant to the directions of Respondent International when they dealt with officials of Schebler Moreover, officials of Respondent International spoke directly with officials of Schebler in implementing na- tional policy with respect to the Integrity Clause Finally, the constitu- tion of the International gives it broad authority over its local unions In these circumstances, it is clear that Respondent International and Re- spondent Local are both liable for the violation See Combustion Eng:- neenng, 272 NLRB 957, 968-969 (1984), Cargo Handlers Inc., 159 NLRB 321, 322-327 (1966), Longshoremen ILA Local 1414 (Occidental Chemical), 261 NLRB 1 (1982) SHEET METAL WORKERS LOCAL 91 (SCHEBLER CO) is particularly important because the International has heavily publicized and recommended the Integrity Clause to all of its local unions. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edi2 ORDER A. The Respondent Sheet Metal Workers Local Union No. 91, affiliated with Sheet Metal Workers International Association, AFL-CIO, its officers, agents, and repre- sentatives, shall 1. Cease and desist from (a) Entering into, maintaining, giving effect to or en- forcing the Integrity Clause in the collective-bargaining agreement it has with Winger Contracting Co. or from entering into, maintaining, giving effect to or enforcing any other contract or agreement, express or implied, whereby Winger or any other employer agrees to cease or refrain from doing business with any other person in violation of Section 8(e) of the Act. (b) Coercing Schebler Company or any other employ- er by denying them economic relief under Resolution 78 unless they agree to the Integrity Clause while granting such relief to other employers who sign the Integrity Clause where an object of such coercion is to force Schebler or any other employer to agree to the Integrity Clause in violation of Section 8(b)(4)(ii)(A). (c) Violating, in any like or related manner, Section 8(e) or Section 8(b)(4)(ii) of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its business offices and meeting halls copies of the attached notice marked "Appendix A."13 Copies of said notice, on forms provided by the Regional Direc- tor for Region 33, after being signed by Respondent Local's authorized representative, shall be posted by Re- spondent Local immediately upon receipt and maintained for 60 consecutive days thereafter, in conspicuous places including all places where notices to members are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent Local Union to ensure that said notices are not altered, defaced, or covered by any other material (b) Sign and mail a copy of the notice to all employers with whom it has a collective-bargaining relationship (c) Notify the Regional Director for Region 33 in writing within 28 days from the date of this Order what steps Respondent Local Union has taken to comply. B The Respondent, Sheet Metal Workers Internation- al Union, AFL-CIO, its officers, agents, and representa- tives, shall 1. Cease and desist from 12 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses to If 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 Nation- al 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 " 777 (a) Coercing Schebler Company or any other employ- er by denying them economic relief under Resolution 78 unless they agree to the Integrity Clause while granting such relief to employers who sign the Integrity Clause where an object of such coercion is to force Schebler or any other employer to agree to the Integrity Clause in violation of Section 8(b)(4)(ii)(A). (b) Violating, in any like or related manner, Section 8(b)(4)(ii)(A) of the Act. 2. Take the following affirmative action necessary ef- fectuate the policies of the Act. (a) Post at its business offices and meeting halls copies of the attached notice marked "Appendix B."14 Copies of the notice, on forms provided by the Regional Direc- tor for Region 33, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material (b) Sign and mail a copy of the notice to all employers with whom it has collective-bargaining relationship and to all its affiliated local unions. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that all allegations of unfair labor practice in the complaint, except for the unfair labor practices found herein, be dismissed. i4 See fn 13 supra APPENDIX A NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. The Integrity Clause has been found unlawful under Section 8(e) of the Act. WE WILL NOT enter into, maintain, give effect to, or enforce the Integrity Clause of our collective-bargaining agreement with Winger Contracting Co. WE WILL NOT enter into, maintain or give effect to any other contract or agreement, expressed or implied, whereby Winger Contracting Co. or any other employer agrees to cease or refrain from doing business with any other person in violation of Section 8(e) of the National Labor Relations Act, as amended. WE WILL NOT coerce Schebler Company or any other employer by denying them economic relief under Reso- lution 78 unless they sign the Integrity Clause while granting such relief to employers who sign the Integrity Clause where an object of such coercion is to force 778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Schesler or any other employer to sign the Integrity Clause. WE WILL NOT in any like or related manner violate Section 8(e) or Section 8(b)(4)(ii)(A) of the Act. SHEET METAL WORKERS LOCAL UNION No. 91 APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. The Integrity Clause has been found unlawful under Section 8(e) of the Act. WE WILL NOT coerce Schebler Company or any other employer by denying them economic relief under Reso- lution 78 unless they sign the Integrity Clause while granting such relief to employers who sign the Integrity Clause where an object of such coercion is to force Schebler or any other employer to sign the Integrity Clause. WE WILL NOT in any like or related manner violate Section 8(b)(4)(ii)(A) of the Act. SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, AFL-CIO