Enterprise Assn., Steamfitters Local 638

National Labor Relations Board - Board Decisions

Apr 8, 1974

209 N.L.R.B. 1168 (N.L.R.B. 1974)

1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Enterprise Association of Steam, Hot Water,
Hydraulic, Sprinkler, Pneumatic Tube,
Compressed Air, Ice Machine , Air Conditioning
and General Pipefitters of New York and Vicinity,
AFL-CIO, Steamfitters Local Union 638 of the
United Association and Mandell & Corsini, Inc.
Case 29-CC-374
April 8, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On October 31, 1973, Administrative Law Judge
Samuel Ross issued the attached Decision in this
proceeding . Thereafter , Respondent filed exceptions
and a supporting brief . The General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings, ' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent , Enterprise Associa-
tion of Steam, Hot Water, Hydraulic , Sprinkler,
Pneumatic Tube , Compressed Air, Ice Machine, Air
Conditioning and General Pipefitters of New York
and Vicinity , AFL-CIO. Steamfitters Local Union
638 of the United Association , its officers , agents,
and representatives , shall take the action set forth in
the said recommended Order.
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd 188 F 2d 362 (CA 3, 1951). We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Administrative Law Judge: This case was
tried before me in Brooklyn, New York, on September 10
and 11. 1973. The charge in this case was filed by the
209 NLRB No. 181
above-named Company on June 27, 1973, was amended on
July 30, 1973, and a complaint based thereon issued on
July 13, 1973, against the above-named Union (herein
called Respondent), which alleges that Respondent en-
gaged in unfair labor practices within the meaning of
Section 8(b)(4)(i) and (ii)(B) and Section 2(6) and (7) of the
Act. The Respondent filed an answer which denies the
substantive allegations of the complaint and the commis-
sion of unfair labor practices.
Upon the entire record, and my observation of the
witnesses and their demeanor, and after due consideration
of the briefs filed by the General Counsel and the
Respondent, I make the following:
FINDINGS OF FACT
I. COMMERCE
The Charging Party, Mandell & Corsini, Inc. (herein
called the Company), a New York corporation whose
principal office is located in New York, New York, is a
mechanical contractor engaged in the business of in-
stalling heating, ventilating, and air-conditioning sys-
tems. During the past year, a representative period, the
Company purchased and caused to be delivered directly to
various installation sites in the State of New York from
places outside the said State, fan coil units, pipes, and other
materials valued in excess of $50,000.
The Trane Company (herein called Trane), a Wisconsin
corporation whose principal place of business is located in
LaCrosse, Wisconsin, is engaged in the manufacture, sale,
and distribution of heating and air-conditioning equipment
and related products. Trane annually ships products
valued in excess of $50,000 from Wisconsin to places
outside the said State.
Based on the foregoing admitted facts, I find that the
Company and Trane are engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material herein, the Respondent Union has
been and is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
This case presents for determination the question of
whether the Respondent engaged in certain conduct and, if
so, whether the conduct constituted secondary activity
prohibited by Section 8(b)(4)(i) and/or (ii)(B) of the Act, or
lawful primary activity for the protection and work-
preservation customarily performed by employees of the
Company.
B. The Facts
The Company is a mechanical contractor which installs
heating, ventilating, and air-conditioning systems, and is a
member of the Mechanical Contractors Association of
ENTERPRISE ASSN., STEAMFITTERS LOCAL 638 1169
New York, Inc. (herein called MCA). The Respondent is a
labor organization which represents steamfitters in the five
boroughs and counties which comprise the city of New
York, and in the counties of Nassau and Suffolk on Long
Island, New York. The Company employs steamfitters
who are represented by the Respondent Union pursuant to
a collective-bargaining agreement between MCA and the
Union to which the Company is a signatory. August
Corsini, the Company's chief executive officer and chair-
man of its board of directors, is also a director of MCA.
North Shore Towers Associates is the owner of property
located in Glen Oaks, New York, on which it is erecting
apartment buildings. In the fall of 1972, North Shore
Towers Associates contracted through an agent with the
Company for the latter to install a total energy plant,
including heating, ventilating, and air-conditioning equip-
ment, at its Glen Oaks building project.' The contract
requires the Company, inter a/ia, to furnish and install
approximately 6,000 vertical fan coil units, and the
contract specifications, after describing the "type" and
"capacity" of these "air handling units," provides that they
should be those known as "Verti Con" made by "Atmos-
pheric Control Industries, Inc., or an approved equal."
Vertical fan coil units are a new type of air-handling
units used for heating, ventilating, and air-conditioning of
buildings, and they replace horizontal fan coil units which
are utilized for the same functions by the industry. Vertical
fan coil units admittedly contain risers and branches which
are precut and installed at the factory, and their use
eliminates work which is performed at the jobsite by
steamfitters when horizontal fan coil units are installed.
The new units also eliminate cutting and threading or
sweating of the connections between the fan coil units and
the vertical users which traditionally is performed on the
job by steamfitters when horizontal fan coil units are
installed.
There are a number of manufacturers who make vertical
fan coil units, and in the late fall of 1972, after entering
into its contract with North Shore Towers Associates, the
Company invited bids from several of them. Trane
submitted the low bid, and in December 1972, the
Company verbally awarded it a purchase order for 5,894
Trane Vertical Riser Fan Coil Units for a delivered net
price in excess of a million dollars. On January 8, 1973, this
verbal order was confirmed by a written letter of intent,
and in late February or early March 1973, the Trane units
were approved by the architect, engineer, and owner of
North Shore Towers as the equal of the Verti Con units
made by Atmospheric Control Industries, Inc., referred to
in the specifications of the contract between North Shore
Towers Associates and the Company?
Modular Energy Corporation (herein called MEC), is a
New York City based manufacturer of the same type of
vertical fan coil units previously made by Atmospheric
Control Industries, Inc. MEC was one of the unsuccessful
i The original commitment to this contract was made orally and
performance commenced in November 1972 The written contract between
the Company and North Shore Towers Associates was entered into on June
12, 1973
2 At the times material herein, Atmospheric Control Industries, Inc., was
no longer in business
i As previously noted, Trane is located in LaCrosse, Wisconsin, and thus
bidders for the Company's order for the North Shore
Towers job. MEC's units, called Vertipak, like those of
Trane, contain factory installed and precut risers and
branches, work traditionally performed at the jobsite by
steamfitters represented by the Respondent when horizon-
tal fan coil units are installed. The use of Vertipak units in
heating and air-conditioning systems similarly eliminates
the cutting and threading or sweating at the jobsite of
connections between the fan coil units and the vertical
risers which is required when horizontal fan coil units are
installed. Unlike Trane, however, at the times material
herein, MEC was a party to a collective-bargaining
contract with Respondent and employed and utilized
steamfitters represented by the Respondent in the manu-
facture and/or assembly of its Vertipak units.3
Ronnell Systems, Incorporated (herein called Ronnell) is
another mechanical contractor in New York City which is
engaged in the business, inter a/a, of installing heating,
ventilating, and air-conditioning systems. One of the
principals of Ronnell is a stockholder and officer of MEC.
It is undisputed that Ronnell employs steamfitters who are
represented by the Respondent Union pursuant to a
collective-bargaining agreement identical to that which
covers the steamfitters employed by MCA's members, the
Company, and MEC. Rule IX of the said collective-
bargaining agreement provides that certain specified work,
including cutting and threading pipe (up to 4 inches in
diameter) and fittings, is required to be performed by
steamfitters, either at the jobsite "or in the shop of the
direct employer," and in the latter case, the pipe or fittings
"must be labeled before leaving the shop" with labels
"provided by Local Union 638." As interpreted by the
Respondent, this provision applies to the branches, risers,
fittings, and connections in vertical fan coil units, and this
work is required to be performed by steamfitters employed
by the mechanical contractor who installs the units, "the
direct employer." However, notwithstanding the said
provision and the Respondent's interpretation thereof, the
Respondent Union has interposed no objection to the
installation by Ronnell' s steamfitters represented by it of
vertical fan coil units made by and in the shop of MEC.4
On December 28, 1972, August Corsini, the chief
executive officer of the Company, received a telephone call
from John Donnelly, - a business agent employed by the
Respondent Union and its admitted agent . According to
Corsini's credited testimony, Donnelly asked Corsini from
whom he was buying the vertical fan coil units for the
North Shore Towers job, and Corsini answered that they
"were purchased from the Train [sic] Company." Donnelly
then said that inasmuch as the units had not been
purchased from MEC, "his men would not install the units.
He would not be able to control the men, [and there ]
would be a severe labor problem and bloodshed." Corsini
"hung up [the telephone] on Mr. John Donnelly." 5
is not within Respondent 's jurisdictional area
4 MEC's Vertipak vertical fan coil units have been and/or are being
installed by Ronnell 's steamfitters at two projects in Respondent's
jurisdiction-one at East 58th Street, and the other , the Lincoln Towers job
on 62nd Street and Columbus Avenue. both in New York City
5 Donnelly admitted that he called Corsini on or about December 28,
but his version of their conversation bore no resemblence to that of Corsmi
(Continued)
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trane's vertical fan coil units are quite large and bulky,6
and they each weigh about '300 pounds. The general
practice in the industry when horizontal fan coil units
(which weigh about 70 pounds), or other heavy or bulky
equipment, arrive at a jobsite, is that they are unloaded
from the truck, "distributed to the particular floors that
they are assigned for [installation], and the installation will
proceed immediately behind this operation."7
On January 9, 1973, Respondent's business agent
Donnelly visited the North Shore Towers jobsite and had a
conversation with Superintendent Schembeck, Stephen
Ray, the Company's foreman, and employee Donald
Hackett, the Respondent's shop steward at the project. All
of the participants in this meeting with Donnelly were
members of the Respondent Union. Only Schembeck and
Donnelly testified regarding what was said. I credit their
testimony about this meeting to the following extent only .8
Shop Steward Hackett asked Donnelly what he should do
when the vertical fan coil units (which the Company had
ordered from Trane) arrived at the jobsite. Donnelly
replied that "it [the units] was going to be a violation of
[Rule Nine] of our trade agreement." Schembeck said that
he "would like to see this particular problem solved before
the units arrived at the job." According to Schembeck,
Donnelly said that "when these units come," they should
"bring men on the job and unload them at the particular
areas where they were going to be unloaded and Mr.
Donnelly would come out on the job and look at the units
and see if they were a violation of our trade agreement."
Schembeck further testified that Donnelly told him, Ray,
and Hackett, "to bring them [the vertical fan coil units] in
on to the jobsite, unload them, and leave them at this point
until he gave us the decision on the particular problem."
According to Schembeck, Donnelly's instruction constitut-
ed a variance from the "usual procedure with respect to the
receipt of [similar] materials" such as horizontal fan coil
units.9
According to Donnelly, he called Corsini regarding a jurisdictional dispute
at the North Shore Towers project "between the steamfitters and the
riggers" over the installation by the latter of boilers and other equipment
which "should have been installed by the steamfitters ," and he assertedly
called Corsini "at that time" to ask him "to intercede with the builder (who
made the assignment ) to see if the work couldn ' t be turned over to the
people to whom it rightfully belonged which I considered [to be] the
steamfitters work ." Donnelly further testified that he told Corsini that
"before we have any labor problems or any blood shed between the
steamfitters and the riggers I'd like to get it [the assignment dispute]
straightened out " I regard Donnelly's testimony in this regard as unworthy
of credence. Corsini admittedly had nothing to do with this alleged work
assignment dispute , and no plausible reason appears in the record for
Donnelly to ask Corsmi for assistance in the resolution of this alleged
"problem " On the other hand, as noted infra, the threat that Corsini s
employees represented by the Respondent would refuse to install the Trane
units when they were delivered to the North Shore Towers job, caused this
subject to become an agenda item at a later meeting between MCA's
directors and the Respondent 's officers and agents In view of the foregoing,
as well as demeanor , I place no credence in Donnelly's version of this
conversation, and I regard his testimony as generally unreliable
r The quotes above are from the credited testimony of Paul Schembeck,
the Company's field superintendent, which was corroborated by Corsini
whom I also credit in this respect
a As previously noted, I regard Donnelly's testimony as generally
unreliable I credit his testimony about this conversation only to the extent
that it accords with that of Schembeck or constitutes an admission against
the Respondent 's interest
9 Donnelly's version of this conversation with Hackett , Ray, and
On January 30, 1973, the directors of MCA (including
Corsini) held a meeting with "most" of the 12 business
agents employed by the Respondent to discuss "differences
and problems . . . then existing in the industry." One of
the items on the written agenda for this meeting was the
"problem" posed by the Respondent's requirements in
respect to the installation of vertical fan coil umts.10
According to Corsini's testimony which I credit, before the
meeting began, John Tracey, the Respondent's business
agent at large,ii and Business Agent Donnelly, both told
him that he "should buy the [vertical fan coil] units from
MEC to avoid any labor problems." Corsini replied that he
had purchased the units from the Trane Company.12
During the course of the said January 30 meeting,
MCA's directors complained about the Respondent's
inconsistent practice of requiring them when installing
vertical fan coil units (other than those made by MEC) to
recut by hand at the jobsite and to rethread or sweat the
pipes, users and branches which already had been cut and
threaded or sweated and installed in the units at the
manufacturer's factory, while at the same time permitting
the installation by Ronnell at 58th Street of vertical fan coil
units made by MEC without requiring the jobsite redupli-
cation of such work. The response of the Respondent's
agents to this complaint was that MEC's vertical fan coil
units had a "UA manufacturers label" and therefore "had
to be accepted and installed." 13 The Respondent's busi-
ness agents also told MCA's directors that the only vertical
fan coil units which were acceptable for installation
(without work reduplication) in Respondent's jurisdiction-
al area were the Vertipak units made by MEC and those
made by the Whalen Company located in Maryland, both
of which bore UA labels, and that all others made outside
the Respondent's jurisdiction, would not be "acceptable in
Local 638 temtory," and "would not be installed in New
York City [without the reduplication of factory work]."14
Schembeck impliedly controverted the latter 's testimony regarding the
instruction Donnelly gave to them According to Donnelly, he told Hackett,
"when these units arrived on the job, unload them , put them in their
respective places, wherever it might be, call me up , and I will take a look at
them and tell you whether there's a violation [of the trade agreement] or
not " I credit Donnelly's testimony in this regard only to the extent that it
accords with that of Schembeck whose testimony I regard as the more
reliable
10 Corsini testified that "there was no agenda, [the meeting ] wasjust to
discuss things " In the light of my finding above which is based on the
credited testimony of Emile H Munier , the president of MCA, Corsmi
obviously was in error in this regard
i i Tracey supervises the Respondent 's other business agents
i2 Tracey, a witness for the Respondent , did not "recall that particular
meeting" and had "no recollection of any discussion" of fan coil units I do
not regard Tracey's testimony as a denial of Corsini's which is credited
above Donnelly testified that his first conversation with Corsmi regarding
vertical fan coil units occurred during the luncheon of MCA's directors and
Respondent 's business agents which followed the regular meeting As
previously noted , I regard Donnelly's testimony as generally unreliable and
I do not credit him in this regard (see fns . 5, 8, and 9, supra)
i3 UA is the abbreviated cognomen of the Respondent 's parent labor
organization, The United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States and Canada,
AFL-CIO
14 The findings above are based on the credited testimony of MCA
president Munier and Corsmi Respondent 's business agent William Daly
who, according to Corsini, said that vertical fan coil units "made out of the
jurisdiction of 638 would not be accepted in New York City," and "would
ENTERPRISE ASSN., STEAMFITTERS LOCAL 638
C. Contentions, Analysis, and Concluding Findings
As previously noted, the complaint in this case alleges
that the Respondent violated Section 8(b)(4)(i) and (ii)(B)
of the Act.15 This section of the Act is generally known as
the secondary boycott provision, and as the Board and the
courts have repeatedly pointed out, it is aimed at
"shielding unoffending employers and others from pres-
sures in controversies not their own." 16
The General Counsel contends that the Company is a
secondary employer within the meaning of Section
8(b)(4)(i) and (ii)(B) of the Act; Donnelly's instructions to
Shop Steward Hackett to merely unload Trane's vertical
fan coil units when they arrived at the North Shore Towers
jobsite, and wait for his inspection of the units for possible
contract violations, constituted inducement and encour-
agement to refuse to perform services within the meaning
of subdivision (4)(i); Donnelly's threats to Corsini, that
"his men would not install the [Trane] units," that "he
would not be able to control the men," and that there
"would be a severe labor problem and bloodshed,"
constituted threats, coercion, and restraint of a person
engaged in commerce within the meaning of subdivision
(4)(ii); and an object of the said conduct was to force or
require the Company to cease doing business with Trane
and with North Shore Towers Associates.
The Respondent's brief contends only that it did not
induce or encourage any employee to refuse to perform
services for the Company, and that it did not threaten,
restrain , or coerce the Company, within the meaning of
Section 8(b)(4)(i) and (ii) of the Act. At the hearing, the
Respondent also contended that this case "basically is a
right to control situation," and that it "had no preference"
regarding whether the Company bought its vertical fan coil
units from Trane or MEC, provided that the Company,
"the direct employer," complied with rule IX of its contract
with the Respondent and performed "specific areas of
work" on the units either at the jobsite or in its own shop.
The Respondent thus appears to contend that rule IX is a
valid work-preservation clause , that the conduct which it
denies engaging in was lawful activity directed towards
requiring the Company to comply with the provisions of
rule IX, and that the Company is a primary employer
not be installed in New York City," was not called by the Respondent to
testify, and no explanation was offered for the failure to do so. The only
testimony adduced by the Respondent regarding what transpired at this
meeting was that given by Business Agent Donnelly. He testified that
"during the lunch period . Corstni had said . . what objections does
[sic] the members of Local or the officers of Local Union 638 have about
installing vertical fan coil units ," and that he answered , "we don 't have any
objections to it, as long as it's done by and for members members of Local
Union 638." Donnelly explained. "Unless the connection , coil connections
and the risers [are] cut and threaded or soldered or welded by Local Union
638 men . . on the job or in the shop of the direct employer." As
previously noted, I regard Donnelly's testimony as generally unreliable. I
nevertheless credit it to this extent only because it in effect corroborates the
credited testimony of Corsint and Munier regarding the statements voiced
by the Respondent's agents that vertical fan coil units other than those
made in factories approved by Respondent would not be installed unless
those emanating from nonapproved factories had work already done at the
factory redone at thejobsite by the steamfitters represented by it.
15 Section 8(b)(4)(i) and (u)(B) of the Act provides as follows:
Sec 8(b). It shall be an unfair labor practice for a labor organization
or its agents--
1171
within the meaning of Section 8(b)(4)(i) and (iiXB) of the
Act. On the record in this case, I find no merit in any of the
Respondent's contentions, and I conclude that it violated
the Act as charged.
As found above, when Corsini notified Business Agent
Donnelly that the vertical fan coil units required by the
Company's contract with North Shore Towers Associates
had been purchased from Trane and not from MEC,
Donnelly told Corsini that "his men would not install the
[Trane] units," that "he would be unable to control the
men," and that there "would be a severe labor problem
and bloodshed." Clearly, Donnelly's said statement to
Corsini constituted threats, restraint, and coercion within
the meaning of Section 8(b)(4)(ii),17 and the object thereof
was to force or require the Company to buy the vertical fan
coil units from MEC whose steamfitters were represented
by Respondent, and not from Trane whose employees were
not represented by it. It is thus quite obvious that
Donnelly's threats were unrelated to the preservation of
work for the steamfitters employed by the Company, but
rather were intended to provide work for MEC's steamfit-
ters employed by MEC, another unit. Thus, his conduct
clearly was "calculated to satisfy union objectives else-
where" and was classically secondary and not primary
activity to preserve work for the Company's unit employ-
ees.18 I therefore find that by Donnelly's threats described
above, the Respondent engaged in unfair labor practices
within the meaning of Section 8(b)(4)(ii)(B) of the Act.
As found above, on January 9, 1973, Business Agent
Donnelly instructed company employee, Donald Hackett,
the Respondent's shop steward, in the presence of the
Company's field superintendent Paul Schembeck and
Foreman Stephen Ray, that when Trane's vertical fan coil
units arrived at the North Shore Towers jobsite, they were
to be unloaded and then await Donnelly's inspection "to
see if they were a violation of our trade agreement."
Donnelly admittedly stated that "it [the units] was going to
be a violation" of rule IX of the collective-bargaining
contract. His instruction to Hackett, Ray, and Schembeck,
all members of Respondent, thus was in effect a direction
not to perform services which steamfitters usually per-
formed upon the arrival of air-handling units at a jobsite.
As found above, those services consisted of distributing the
(4)(i) to engage in, or to induce or encourage any individual
employed by any person engaged in commerce or in an industry
affecting commerce to engage in, a strike or a refusal in the course of
his employment to use , manufacture , process, transport, or otherwise
handle or work on any goods, articles, materials, or commodities or to
perform any services; or (ii) to threaten , coerce, or restrain any person
engaged in commerce or in an industry affecting commerce , where in
either case an object thereof is:
(B) forcing or requiring any person to cease using, selling, handling,
transporting , or otherwise dealing in the products of any other
producer, processor, or manufacturer, or to cease doing business with
any other person . . Provided, that nothing contained in this clause
(B) shall be construed to make unlawful, where not otherwise unlawful,
any primary strike or primary picketing. . .
16 N L R B. v. Denver Building and Construction Trades Council (Gould &
Preisner), 341 U.S. 675,692
17 Brazil Hall, d/b/a Hall Refrigeration Sales & Service, 203 NLRB No.
148, JD p 4.
18 National Woodwork Manufacturers Association v. N.LR B, 386 U S.
612, 644-645 (1967), Orange Belt District Council of Painters No 48
[Calhoun Drywall Co J v. N L R B., 328 F.2d 534, 538 (C.A.D.C., 1964).
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
units to the floor of the structure where they are scheduled
to be installed, and then installing them. Accordingly,
Donnelly's instruction to Shop Steward Hackett, an
employee of the Company, that he refrain from doing work
(unless and until approved by Donnelly) which he
normally would do upon the arrival of Trane's vertical fan
coil units, clearly constituted inducement and/or encour-
agement of Hackett, an "individual," to refuse to perform
services for the Company. a person engaged in commerce
or in an industry affecting commerce, within the meaning
of Section 8(b)(4Xi) of the Act.19
This leaves for consideration the question of whether the
Union's objective for this conduct was the preservation of
work for the Company's employees under rule IX of its
collective-bargaining contract, or whether its conduct was
"tactically calculated to satisfy union objectives else-
where."20 In the former case, the Company would be the
primary employer, and Donnelly's inducement and en-
couragement of Hackett not to perform services would be
lawful. In the latter case , however, the Company "would be
a neutral [secondary] bystander" to the Respondent's
dispute with Trane and other manufacturers of vertical fan
coil units who, unlike MEC, were not parties to collective-
bargaining contracts with the Respondent, and Donnelly's
conduct would transgress the proscriptions of Section
8(b)(4)(i), regardless of whether there was an actual dispute
with such nonsignatory manufacturers of vertical fan coil
units.21 Here, as previously noted, the record clearly
discloses that the "tactical objective" of the Respondent
was not to enforce compliance by the Company with rule
IX of its trade agreement, but rather to force the Company
to buy its vertical fan coil units from MEC, and not from
Trane, an "objective" other than preserving work for the
Company's employees. It is significant in this regard, that
the Respondent's only demand upon the Company,
originally made by Donnelly on December 28, 1972, and
repeated by Donnelly and Tracey on January 30, 1973, was
that the Company should buy its vertical fan coil "units
from MEC and avoid labor problems." It is further
significant that on the latter date, Business Agent Daly
threatened that vertical fan coil units "made out of the
jurisdiction of 638 would not be accepted in New York
City," and "would not be installed in New York City."
Compliance by the Company with the Respondent's
demand that it purchase its vertical fan coil units from
MEC rather than Trane, would have preserved no work for
the steamfitters employed by the Company, "the direct
employer," for as noted above, it is undisputed that both
MEC's units and those of Trane had branches and risers
precut and threaded or sweated, and coil connections, all
made at the factory, which thereby eliminated this work for
the Company's employees at the jobsite. I conclude from
all the foregoing that Donnelly's inducement and encour-
agement of Hackett to refrain from performing services
when the Trane units arrived at the jobsite was based on
19 N. L R B v. Servette, In(, 377 U.S 46
20 National Woodwork Manufacturers Assn. v NLRB, 386 U.S. 612,
644 (1967).
21 Id
22 Brazil Hall. d/b/a Hall Refrigeration Sales & Service. 203 NLRB No.
148.
2i The Austin Company, Inc., 204 NLRB No. 118: Enterprise Fire
union objectives other than preserving work for the
Company's employees, that an object of the said conduct
was to form or require the Company to do business with
MEC and to cease doing business with Trane, and that the
Respondent thereby engaged in unfair labor practices
within the meaning of Section 8(b)(4)(i)(B) of the Act.
I also find that by the statements of Respondent's agents
Tracey, Donnelly and Daly to Corsini on January 30, 1973,
the Respondent further threatened, restrained, and coerced
the Company and engaged in additional unfair labor
practices within the meaning of Section 8(bx4)(ii)(B) of the
Act.22
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent Union set forth in
section III, above, occurring in connection with the
operations of the Company and Trane described in section
I, above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent Union has engaged
in certain unfair labor practices, I will recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
The General Counsel requests a "broad remedial order"
to enjoin the Respondent from engaging in the type of
conduct found unlawful herein in respect to Trane. The
General Counsel bases his request on the fact that there are
five prior decisions of the Board finding the Respondent in
violation of the secondary boycott provisions of the Act,
and which thus disclose a proclivity on the part of the
Respondent to commit such violations.23 I find merit in
this contention and accordingly will recommend the broad
order requested by the General Counsel.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Enterprise Association of Steam, Hot Water, Hy-
draulic Sprinkler, Pneumatic Tube, Compressed Air, Ice
Machine, Air Conditioning and General Pipefitters of New
York and Vicinity, AFL-CIO, Steam Fitters Local Union
638 of the United Association, is a labor organization
within the meaning of Sections 2(5) and 8(b)(4) of the Act.
2. Mandell & Corsini, Inc., and the Trane Company,
are employers and persons within the meaning of Sections
2(1) and 8(b)(4) of the Act, and are engaged in commerce,
or in an industry affecting commerce, within the meaning
of Sections 2(6) and (7) and 8(b)(4) of the Act.
Sprinkler Corporation, JD-198-73, adopted by the Board pro forma on April
18, 1973. Enterprise Association of Steam, Hot Water (All-Boro Air
Conditioning Corp.), 136 NLRB 1631, Enterprise Association, Local 638
(Allen-Stevens Corporation), 129 NLRB 555: Enterprise Association of Steam,
Hot Water (Mechanical Contractors Association of New York, Inc and
Consolidated Edison Company of New York, Inc.), 124 NLRB 521, enfd. 285
F 2d 642 (C.A 2, 1960).
ENTERPRISE ASSN., STEAMFITTERS LOCAL 638
3. By inducing and encouraging employees of Mandell
& Corsini, Inc., to engage in a refusal in the course of their
employment to perform services, and by threatening,
coercing and restraining Mandell & Corsini, Inc., with an
object of forcing or requiring Mandell & Corstni, Inc., to
cease doing business with the Trane Company, the
Respondent, Enterprise Association of Steam, Hot Water,
Hydraulic Sprinkler, Pneumatic Tube, Compressed Air, Ice
Machine, Air Conditioning and General Pipefitters of New
York and Vicinity, AFL-CIO, Steam Fitters Local Union
638 of the United Association, has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(b)(4)(i) and (ii)(B) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
I hereby issue the following recommended:
ORDER24
Respondent, Enterprise Association of Steam, Hot
Water, Hydraulic Sprinkler, Pneumatic Tube, Compressed
Air, Ice Machine, Air Conditioning and General Pipefitters
of New York and Vicinity, AFL-CIO, Steam Fitters Local
Union 638 of the United Association, its officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Engaging in, or inducing or encouraging employees
of Mandell & Corsini, Inc., or any other employer or
person engaged in commerce or in an industry affecting
commerce, to engage in, a strike or refusal in the course of
their employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles,
materials, or commodities, or to perform any services; or
(b) threatening, coercing, or restraining Mandell & Corsini,
Inc., or any other person engaged in commerce or in an
industry affecting commerce; where in either case an
object thereof is to force or require Mandell & Corsmi,
Inc., or any other employer or person to cease using,
selling, handling, transporting, or otherwise dealing in the
products of the Trane Company, or any other employer or
person, or to cease doing business with the Trane
Company, or any other employer or person.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act.
(a) Post at its business office and meeting halls, copies of
the attached notice marked "Appendix." 25 Copies of said
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for a period of 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced or
covered by any other material.
(b) Furnish the said Regional Director with signed copies
of the aforesaid notice for posting by Mandell & Corsim,
Inc., and/or the Trane Company, if willing, at all places
where notices to employees are customarily posted.
1173
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of the receipt of this
Decision , what steps have been taken to comply herewith.
24 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall , as provided in Sec
102.48 of the Rules and Regulations , automatically become the findings,
conclusions, decision , and order of the Board , and all objections thereto
shall be deemed waived for all purposes
2s In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act, and has ordered us to post this notice and we intend
to carry out the order of the Board.
WE WILL NOT (a) engage in, or induce or encourage
individuals employed by Mandell & Corsini, Inc., or
any other employer or person engaged in commerce or
in an industry affecting commerce, to engage in, a
strike or a refusal in the course of their employment, to
use, manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials, or
commodities, or to perform any services, or (b)
threaten, coerce or restrain Mandell & Corsini, Inc., or
any other person engaged in commerce or in an
industry affecting commerce, where in either case an
object thereof is to force or require Mandell & Corsini,
Inc., or any other person, to cease using, selling,
handling, transporting, or otherwise dealing in the
products of, or to cease doing business with the Trane
Company, or with any other employer or person.
ENTERPRISE ASSOCIATION OF
STEAM, HOT WATER,
HYDRAULIC SPRINKLER,
PNEUMATIC TUBE,
COMPRESSED AIR, ICE
MACHINE, AIR
CONDITIONING AND
GENERAL PIPEFITTERS OF
NEW YORK AND VICINITY,
AFL-CIO, STEAM FITTERS
LOCAL UNION 638 OF THE
UNITED ASSOCIATION
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the date of posting and must not be altered, defaced, its provisions may be directed to the Board's Office, 16
or covered by any other material. Court Street, Fourth Floor, Brooklyn, New York 11241,
Any questions concerning this notice or compliance with Telephone 212-596-3535.