Int'l Assn. of Heat and Frost Insulators, Etc.

National Labor Relations Board - Board Decisions

Sep 4, 1964

148 N.L.R.B. 866 (N.L.R.B. 1964)

866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Midland
Building, 176 West Adams Street, Chicago , Illinois, Telephone No. Central 6-9660,
if they have any question concerning this notice or compliance with its provisions.
International Association of Heat and Frost Insulators and As-
bestos Workers , AFL-CIO; Local 22, International Association
of Heat and Frost Insulators and Asbestos Workers, AFL-
CIO; Local 113, International Association of Heat and Frost
Insulators and Asbestos Workers, AFL-CIO [Armstrong Con-
tracting and Supply Corporation ; Johns-Manville Sales Corpo-
ration ; Thorpe Products Company; Techalloy Company , Incor-
porated] and Houston Insulation Contractors Association.
Case No. 23-CC-133. September 4, 1964
DECISION AND ORDER
.On February 3, 1964, Trial Examiner John F. Funke issued his
Decision in the above-entitled proceeding, finding that Respondent
Locals 22 and 113 had engaged in and were engaging in certain un-
fair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. He also found that Respondent
International had not engaged in any unfair labor practices and
recommended that the complaint be dismissed as to it. Thereafter,
Respondent Locals 22 and 113 and the Association, the Charging
Party, filed exceptions to the Trial Examiner's Decision and support-
ing briefs; cross-exceptions and a supporting brief were filed by the
General Counsel; and answering briefs were filed by Respondent In-
ternational and the Association.
The Board 1 has reviewed the rulings of the Trial Examiner made
at. the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case 2 The Board adopts the findings of fact made by the Trial
Examiner to the extent consistent herewith and concludes that the
complaint should be dismissed in its entirety.
We do not agree with the Trial Examiner that Respondent Locals
22 and 113 violated Section 8(b) (4) (i) , and • (ii) -(B) of the Act.
1 Pursuant to-the provisions of Section 3(b) of _the National Labor Relations Aet,1,the
Board has delegated its powers in .connection with this case to a three - member panel
[Chairman McCulloch and-Members Leedom and Brown]
2 The request of Respondent Locals . 22 and 113 for oral argument before the Board is
hereby denied , as the record , exceptions , and briefs adequately present the issues and
positions of the parties.
148 NLRB No. 86.
,,,.
INT'L ASSOC. OF HEAT & FROST INSULATORS, ETC . 867
While Locals 22 and 113 may have caused a strike among employees
of Johns-Manville and Armstrong, respectively, we conclude that
such conduct constituted protected primary activity and was not for
an object proscribed by the foregoing section of the Act.
Johns-Manville, herein called JM,,, and Armstrong are engaged in
the sale and installation of industrial insulation products. They
are members of Houston Insulation Contractors Association, herein
called the Association, which has a collective-bargaining contract
with Local 22. The contract prohibits JM, Armstrong, and other
employer-members from subcontracting certain work performed by
their respective employees. This contract also has a provision in
which the Employer agrees , when performing work outside Local
22's geographical jurisdiction, to adopt the existing rules and condi-
tions of employment within the jurisdiction of a sister local which
have been established by collective-bargaining agreements with in-
sulation companies in that area.' As hereinafter discussed, the work
stoppage involving Armstrong's employees occurred in Victoria,
Texas, within the jurisdiction of Local 113. Local 113's contract with
employers in its jurisdiction contains an absolute ban against sub-
contracting similar to one contained in Local 22's contract.
Techalloy Company, Incorporated, herein called Techalloy, sells
metal fastening products to JM and other insulation contractors.
Some of the products are coils or rolls of stainless steel from which
bands or strips may be cut and then used to -fasten asbestos material
around pipes which are to be insulated. In one instance, Techalloy
sold precut steel bands to JM which the latter purchased for use on
an American Oil Co. project located at Texas City, Texas, which is
within the geographical jurisdiction of Local 22. Generally, JM
only purchases rolls or coils of steel from Techalloy and JM's em-
ployees then cut strips or bands from the roll. Techalloy's employees
are not represented by any union.
Thorpe Products Company, herein called Thorpe, sells asbestos
products to Armstrong and other insulation contractors. Some of
these products are straight lengths of asbestos which may be cut to
size and then used to cover pipes which are to be insulated. On one
occasion, Thorpe sold mitered asbestos fittings to Armstrong which
the latter purchased- for use on a Dupont project located in Victoria,
Texas, which is within the jurisdiction of Local 113. Generally,
Armstrong only purchases straight lengths of asbestos from Thorpe,
and Armstrong's employees then miter or cut the asbestos at angles
$Article I of Local 22's contract provides:
The Employer further agrees that on,'all operations -outside the chartered territory
of'the Union he'will''abide'by the rates of pay, rules, and working conditions estab-
"--''lished'by collective bargaining,'agreement between the Local insulation contractors
and the local union in that territory:
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with a saw and glue these cut sections together so that the material
can be used to cover curved or L-shaped pipes . This processing
results in a mitered fitting.4 Thorpe's employees are nonunion.
The General Counsel contends that Local 22 had a primary dispute
with Techalloy because the latter employed nonunion employees and,
in furtherance of that dispute , struck neutral employer JM to force
it to cease doing business with Techalloy . With respect to Local 113's
conduct, the General Counsel 's position is the same ; that Thorpe was
the primary employer whose nonunion products were sold to neutral
employer Armstrong . The Unions maintain that they were engaging
in primary conduct against JM and Armstrong (Local 22 against
JM and Local 113 against Armstrong ), in protest of the subcontract-
ing of work customarily performed by JM and Armstrong employees.
The evidence relating to the work stoppages which we deem critical is
summarized below.
The JM dispute: JM had always purchased coils or rolls of steel
from Techalloy which JM 's employees would cut into bands or strips
to be used in applying insulation materials . This preparatory work
was reserved for JM employees , and they could not be deprived of it
by subcontracting, under Local 22's contract with JM . In July 1963,
however , JM, for the first time , purchased precut bands from Tech-
alloy for use at the Texas City project . As the preparation work
usually performed by JM employees was thus denied them, JM em-
ployees refused to apply these precut bands. JM's use of Techalloy
products had never before been protested by Local 22.
The Armstrong dispute : Armstrong had always purchased straight
lengths of asbestos materials from Thorpe which Armstrong's em-
ployees would cut to make mitered fittings which were then applied at
the jobsite. The preparation work of making mitered fittings was,
reserved for Armstrong employees under that employer's collective-
bargaining contract with Local 22, and could not be subcontracted
under Local 113 's contract with employers in its geographical juris-
diction, which included Victoria , Texas, where the Armstrong dispute
arose. As noted , Armstrong had in substance agreed to abide by
Local 113 's contractual ban against subcontracting.
In June or July 1963, a supply of mitered fittings were brought to
the Victoria project which Armstrong 's employees , who were mem
bers of Local 113, refused to apply until advised by Armstrong that
its own employees in Houston , within Local 22's jurisdiction , had per-
formed the preparation work . In August 1963, Armstrong's em-
ployees again refused to apply precut or mitered fittings at Victoria.
* Premolded fittings, which are not involved in the instant case , but are hereinafter
discussed in connection with other cases decided by the Board, are factory or machine
manufactured with the use of heat and forms to produce L-shaped insulation coverings.
Neither Techalloy nor Thorpe manufacture premolded fittings.
INT'L ASSOC. OF HEAT & FROST INSULATORS, ETC. 869
These particular fittings had been purchased for the first time by Arm-
strong from Thorpe. Local 113 had never before protested the use of
Thorpe products.
Upon the entire record, we cannot agree with the General Counsel
that the Respondent Locals were engaged in a boycott of nonunion
products in violation of the Act.5 While Techalloy and Thorpe were
nonunion employers, neither Local 22 nor Local 113 had ever refused
to apply their products before the incidents in question. On these
occasions, the purchases made from them clearly deprived the JM and
Armstrong employees of preparation work to which they were en-
titled. The conduct complained of herein was taken to protest such a
deprivation of work, its object being to protect or preserve for em-
ployees certain work customarily performed by them.6 This conduct
constituted primary activity and is protected by the Act, as was the
earlier action taken at the Victoria, project to protest the use of mitered
fittings which, it was thought, had been prepared by other than Arm-
strong's employees 7 1 ' . '
5 In his disposition of the case, which we do not adopt, the Trial Examiner assumed
that there was no such boycott.
6In International Association of Heat and Frost Insulators and Asbestos Workers
(Insul-Coustzo Corporation), 139 NLRB 659; International Association of Heat and
Frost Insulators and Asbestos Workers, AFL-CIO; et al. (Speed-Line Manufacturing
Company, Inc ), 139 NLRB 688, upon which the General Counsel relies, the present situa-
tion did not obtain. In those cases, the premolded fittings boycotted by the unions had
never been processed or prepared by the employees there involved.
Although there is evidence that employees of JM refused to apply the precut steel
bands and that employees of Armstrong refused to apply the mitered fittings because
these products did not bear a union decal, the record shows that these decals were used
to assist the unions to police the no-subcontracting contractual provisions.
7 In nis separate opinion, Member Leedom disagrees with our finding that Local 113's
conduct was lawful He asserts that Local 113 had no collective-bargaining contract
with Armstrong, and that the mitering which it was seeking to preserve would not in any
event have been performed by employees whom it represented But Armstrong had agreed
with Local 22 that, when it performed work outside the territorial jurisdiction of Local 22,
it would abide by terms and conditions of employment established in that area by con-
tract between the local insulation contractors and the local union. , Local 113's contract
with insulation contractors contained the identical no-subcontracting clause present in
Local 22's contract. It appears to be conceded that the clause was lawful.
Whether Local 113 Is regarded as a third-party beneficiary of Local 22's bargaining
contract or as agent of Local 22, it had the right to insist, in accordance with the terms
of the contract, that Armstrong adhere to the lawful no-subcontracting clause. Painters
District Council No. 3, Brotherhood of Painters, Decorators and Paperhangers of America,
AFL-CIO (Central States Painting and Decorating Company), 147 NLRB 79 (Members
Leedom and Jenkins dissenting). On two occasions, Local 113 members who were em-
ployees of Armstrong refused to apply the mitered fittings. The first time, in June or
July 1963, the employees voluntarily did apply them when informed that Armstrong
employees at Houston had done the preparatory work This incident has no significance
because Armstrong had not subcontracted out the mitering and, therefore, had not vio-
lated the no-subcontracting clause On the second occasion, in August 1963, Armstrong
purchased the mitered fittings from Thorpe Armstrong's employees refused to apply
them at the direction of Local 113 because the work of mitering had been subcontracted
out to another employer-Thorpe Armstrong had thus violated the no-subcontracting
clause of its contract and Local 113's conduct was therefore lawful. See Milk Wagon
Drivers and Dairy Employees Union Local 603, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (Drive-Thru Dairy, Inc.), 145 NLRB
445; Ohio Valley Carpenters District Council, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, et al. ( Cardinal Industries , Ino.), 136 NLRB 977, 985-986.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of our conclusion that Respondent Locals 22 and 113 did
not violate the Act, the complaint must also be dismissed as to Re-
spondent International. Accordingly, we shall dismiss the complaint
in its entirety.
[The Board dismissed the complaint.]
MEMBER LEEDOM, concurring and dissenting :
I agree-with my colleagues' dismissal of the complaint as to Re-
spondents International and Local 22, but not with their dismissal as
to Respondent Local 113. As to Local 22, the record in my opinion
fails to establish that this Respondent's conduct was directed at any-
thing other than the enforcement of a lawful work-preservation clause
in the agreement between it and Johns-Manville as an Association-
member." Local 113's conduct, however, stands on a different footing.
Local 113 had no contract with Armstrong. It was neither a third-
party beneficiary of Local 22's bargaining contract with Armstrong,,
nor is there anything to show that it was acting as an agent of Local 22
for the purpose of enforcing Local 22's contract with Armstrong.
Nor can I agree with my colleagues' apparent position that Arm-
strong's contract with Local 22, through the Houston Association,
would permit Local 113 to enforce against Armstrong the work-
preservation clause in its agreement with a different employer associa-
tion of which Armstrong was not a member.9 Further, it is clear from
the record that the mitering work which Local 113 was seeking to
"preserve" would not in any event have been performed by employees
which it repre,ented, but would, if performed by Armstrong, have
been performed by employees in another unit represented by Local 22;
hence my colleagues are exculpating Local 113 for assertedly seeking
to enforce an agreement to which it was not a party for the benefit of
employees it did not represent.19
In view of the absence of any valid contractual support for . Local
113's asserted claim, and the further fact of Local 113's earlier will-
ingness to permit employees represented by Local 22 to perform the
very work which it refused to permit the unrepresented Thorpe em-
ployees to perform, I can only conclude that the record with respect to
8 As the alleged violation by the International necessarily hinges, in my opinion, on the
alleged violation by Local 22 , I concur in the dismissal as to the International but not
in the Trial Examiner 's stated reason for not imputing Baker's conduct to the Inter-
national Cf. International Longshoremen & Warehousemen's Union, and Local No. 13,
etc.- (Catalina Island Sightseeing Lines), 124 NLRB 813 , at 816.
8 See the dissenting opinion in Painters District Council No 3, Brotherhood of Painters,
Decorators and Paperhangers of Ameiica , AFL-CIO ( Central States Painting and
Decorating Company ), 147 NLRB 79.
iu See Raymond 0 Lewis, et al., as agents for UMW, and Edward Fox , et al , as agents
for the Coal Operators, etc. (Arthur J. Calligan ), 148 NLRB 228, in which the Board
has only recently held a work protection clause invalid under Section 8(e) "where, as
here, - the work , protection sought extends beyond the , established unit,"
INT'L ASSOC. OF HEAT & FROST INSULATORS, ETC. 871
Local 113, unlike the record with respect to Local 22, establishes that
this Respondent's objection to premitered fittings was based on the
nonunion status of the employees who had performed the work, and
not on their nonunit status. As a refusal to install products for such
union=related reasons is proscribed by Section 8(b) (4) (i) and (ii) (B);
and as Local 113 is clearly responsible for such refusal, I would find
that Respondent Local 113 violated the Act' as alleged.'1 As my col-
leagues ate unjustifiably dismissing the complaint as to this Respond-
ent, I must to that extent dissent.
U See Raymond 0 Lewis , at al., as agents for UMW, and Edward Fox, et at., as agents
for the Coal Operators , etc. (Arthur J. Galligan ), supra.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed August 8, 1963 ,1 by-Houston Insulation Contractors Associa-
tion , herein called the Contractors Association , against International Association of
Heat and Frost Insulators and Asbestos Workers, AFL-CIO, herein called the Inter-
national, and Local 22 and Local 113 , International Association of Heat and Frost
Insulators and Asbestos Workers, AFL-CIO, herein called Locals 22 and 113, or
collectively as the Respondents , the General Counsel issued complaint alleging Re-
spondents violated Section 8(b)(4)(i ) and (ii ) ( B) of the Act.
The answers of Respondents denied the commission of unfair labor practices.
Upon the entire record in this case , and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANIES
Houston Insulation , a Texas corporation , with its principal office and place of busi-
ness at Houston , Texas, is an association of employers engaged generally in the sale,
distribution , and installation of insulation products to and for employers engaged in
interstate commerce and in the building and construction industry principally at
Houston , Galveston , Beaumont , and Port Arthur , Texas, and exists for the purpose,
inter alia, of negotiating and administering collective -bargaining agreements with
Respondent Local 22 made for and on behalf of its member employers , who in the
course and conduct of their business operations annually sell , distribute , and install
insulation products to and for employers engaged in interstate commerce and in the
building and construction industry in an amount in the aggregate valued at in excess
of $10, 000,000.
Armstrong Contracting and Supply Corporation , herein called Armstrong, a mem-
ber employer of Houston Insulation , and a subsidiary of Armstrong Cork Company
with principal offices at Lancaster, Pennsylvania , is a Delaware corporation, and is
engaged at Houston , Texas, in the sale and installation of industrial insulation prod-
ucts, pursuant to contract , in the building and construction industry , from which
business it annually sells and ships products outside the State of Texas valued in
excess of $ 50,000.
Johns-Manville Sales Corporation , herein called Johns-Manville , a member em-
ployer of Houston Insulation , is a Delaware corporation with principal offices in the
State of New York and branch offices in several States including the State of Texas,
and is engaged at Houston , Texas, in the manufacture and sale of insulation material,
pursuant to contract and distributorship basis, in the building and construction in-
dustry, from which business it annually sells and ships products outside the State of
Texas valued in excess of $50,000.
Thorpe Products Company, division of J. T . Thorpe Company , Inc., herein called
Thorpe , is a Texas corporation , and is engaged at Houston , Texas, in the distribution
and fabrication of insulation products to and for insulation contractors and industrial
employers, engaged in the building and construction industry , from which business it
annually sells and ships products outside the State of Texas valued in excess of
$50,000.
' Unless otherwise noted all dates refer to 1963.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Techalloy Company, Incorporated, herein called Techalloy, is a Pennsylvania cor-
poration with principal offices in the State of Pennsylvania and branch offices in the
States of Connecticut, New York, Illinois, California, Georgia, and Texas, and is en-
gaged at Houston, Texas, in conversion (redraw and reroll) of stainless steel and
high nickel alloy, and in the sale and distribution of its products to insulation con-
tractors, engaged in the building and construction industry, and to industrial em-
ployers, from which business it annually sells and ships products outside the State of
Texas valued in excess of $50,000.
The building and construction industry is an "industry affecting commerce" within
the meaning of Section 8(b) (4) (i) and (ii) (B) of the Act. ,
Houston Insulation, Armstrong, Johns-Manville, Thorpe, and Techalloy are, and
have been at all times material herein, persons within the meaning of Section 2(l)
of the Act, and employers engaged in commerce or in an industry affecting com-
merce within the meaning of Section 2(6) and (7) of the Act, respectively. .
II. LABOR ORGANIZATIONS INVOLVED
Respondents are labor organizations within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
1. Background
Thorpe Products Company, herein called Thorpe, at times material herein, sold
mitered fittings to Armstrong Contracting and Supply Company, herein called Arm-
strong, which Armstrong used at its insulation construction job at Victoria, Texas.
The project was the construction of an ammonia plant for E. I. du Pont de Nemours
& Company.'
' Techalloy Company, Incorporated, herein called Techalloy, at times material
herein, sold stainless steel bands to Johns-Manville Sales Corporation, herein called
Johns-Manville, for pipelines it was installing at an American Oil Company loading
wharf at Texas City, Texas.
None of the Respondents is certified or recognized as the collective-bargaining
representative of either Thorpe or Techalloy.
Both Johns-Manville and Armstrong are members of the Contractors Association
which had a collective-bargaining agreement with Local 22,2 and both were signa-
tories to the agreement. The contract contained two articles cited by Respondents
in support of its position in the case . These read as follows:
ARTICLE VI
The Employer agrees that he will not sublet or contract out any work de-
scribed in Article XIII and the Union agrees not to contract, sub-contract or
estimate on work nor allow its membership to do so nor to act in any trade
capacity other than that of workman. It is also agreed that no member of a
firm or officer of a corporation or their representative or agents shall execute
any part of the work of application of materials and in no case shall any mem-
ber of the Union estimate on or give any labor figures.
ARTICLE XIII
The Agreement covers the rates of pay rules and working conditions of all
Mechanics and Improvers engaged in the preparation, distribution and applica-
tion of pipe and boiler coverings, insulation of hot surfaces, ducts, flues, etc.,
also the covering of cold piping and circular tanks connected with the same and
all other work included in the trade jurisdictional claims of the Union.
This to include alterations and repairing of work similar to the above and
the use of all materials for the purpose mentioned.
2. The refusal at Armstrong
Thorpe manufactured a number of products, among which were mitered fittings,
the only product involved in the dispute. Some of these fittings were sold to Arm-
strong on August 2 and 6. The dispute, however, had its genesis earlier.
2 Marked as Charging Party' s Exhibit No 1, introduced by Respondents
INT'L ASSOC. OF HEAT & FROST INSULATORS, ETC. 873
C. E.' Foster, branch manager for Armstrong and president of the Contractors
Association, testified that he was in charge of the insulation work under General
Contractor Lummus Company at Victoria (the Du Pont project). Lynn Williams
was superintendent and Robert Graham was foreman. In the latter part of June or
early July Foster received a call from Graham, a member of Local 113, advising
him that the members of Local 113 employed by Armstrong refused to apply mitered
fittings received at the jobsite because they did not have labels (decals) .3
In the latter part of July a meeting was held at the jobsite attended by a Mr.
DeQuir of Lummus, Foster, Williams, and James Eaton, business agent of Local 113.
Eaton was asked if his men would apply the fittings and Eaton asked, "Is that all we
have to discuss, gentlemen?" The meeting then ended. After the meeting Eaton
told Foster and Williams he could not permit them to apply the fittings. It does ap-
pear, however, from the testimony of Eaton, infra, that the fittings were later applied
when Eaton received a letter from Armstrong 4 stating that the fittings had been made
by union members in Armstrong's Houston shop.5
The mitered fittings manufactured by Thorpe and delivered in early August were
not applied by Armstrong's workers until September 16 when a district court in-
junction was obtained under the provisions of Section 10(1) of the Act. Lynn
Williams testified that he was employed as construction superintendent by Armstrong
at Victoria until August 17 when he left for New Orleans. Williams was on vaca-
tion when the Thorpe fittings were delivered but he testified that Graham told him
that any member of Local 113 who applied the fittings (which bore no label) would
be disciplined and that Eaton twice told him that the fittings would not be applied
unless they had labels.
Eaton testified that his attention was first directed to the fact that mitered fittings
without labels had been delivered to the Victoria job by members of Local 113.
Eaton, who claimed the right under articles VI and XI of his contract (article XI of
Local 113's contract was identical with article XIII in Local 22's contract) to insist
that the cutting of the fittings be done by employees of Armstrong. When Williams
told him that Armstrong's employees had cut the fittings Eaton asked for proof and,
when he received the letter, supra, the fittings were applied.
3. The refusal at Johns-Manville
Edwin E. Roberts, contract manager for Johns-Manville at Houston, testified that
over a period of years Techalloy supplied Johns-Manville with stainless steel bands,
stainless steel wire, and wire ties, materials used in insulation contracting. In July,
Johns-Manville purchased stainless steel bands from Techalloy which had been pre-
cut by Techalloy employees for use on an American Oil Company project at Texas
City. The bands were delivered to the Johns-Manville Houston warehouse where
an employee named Robert Oliver was to apply seals to the bands. Oliver told
Roberts he could not apply the seals because Business Agent Shrode of Local 22 told
him he (Oliver) could not apply the "union" label 6 since the bands had been cut by
employees who were not members of Local 22. The record does not disclose the
sequence to this refusal.
3 These labels were gummed and could be affixed to insulation products and bore a num-
ber which identified the shop in which the product was made They were distributed to
the shops by the Respondent Locals so that only the products of union shops would bear
the label They were not the same as a union label but one result of their use was union
identification
* Respondent Local's' Exhibit No. 1
5 An explanation for what seems a confusion may be explained by the fact that a meet-
ing was held on June 3 by the Contractors Association to which Brooks Baker, vice
president of the International and secretary of Local 22, and Joseph Shrode, business
-agent of Local 22 were invited. At this meeting Baker and Shrode presented the reasohs
why they wanted the Jabel (identification) and the contractors stated their opposition.
After the meeting the Contractors Association sent a letter to Local 22 stating it would
not permit labeling in the shops of its members. About July 16 several members of the
Association suffered work stoppages because the fittings delivered to jobs did not have the
union labels. This stoppage at Armstrong was presumably one of them, for it was the
fact that the fittings did not bear the label , not an allegation that they were nonunion
products , which caused the refusal. The testimony on this issue is admittedly confusing.
9 The labels, or decals, were frequently referred to as union labels since the use of the
label would serve to indicate the product was fabricated in a union shop.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roberts further testified that H. Clifford David was foreman at the American Oil
job and that in the latter part of July, David told him that he had been told by
Shrode that he (David) could not apply the precut bands because they did not have
a union label. Roberts then called Shrode who told him that the bands could not
be applied because they had not been cut by members of the Asbestos Workers and
that Oliver could not affix the seals for the same reason. (The bands were later
affixed by members of the Sheet Metal Workers, following a change in contract
specifications.)
H. Clifford David testified that on or about July 19 Shrode told him that he
(Shrode) had heard that the bands which were to be used were precut and that if
they came in without labels David was to refuse to apply them. On July 23 David
went to Texas City to start the American Oil job, found the bands had no labels,
and went to Roberts and told him he could not use them. David testified that if
bands were received with a label he called his business agent and gave him the label
number; if bands bore no label he informed him of that.
Brooks Baker, called by Respondent International, testified that his Local (22)
and Local 113 had instructed their members not to handle the products of Thorpe
and Techalloy because the locals did not have contracts with Thorpe and Techalloy
and the use of their products by members of the Contractors Association was in vio-
lation of articles VI and XIII of the agreement. Since Johns-Manville and Arm-
strong were signatories to the contract Baker considered their use of the fitting in
the one case and the precut bands in the other to be a violation. In Baker's opinion
it would be a violation of the contract whether the fabricator employed union mem-
bers or not, since this was work (mitering and precutting) customarily performed
by Johns-Manville and Armstrong employees. Baker cited an instance where pre-
fabricated fittings were delivered to Industrial Insulators (a signatory to the con-
tract) by a supplier in Shreveport who had a contract with the Shreveport local and
the members employed by Industrial Insulators were instructed not to use them. It
was Baker's contention that the issue was not one of a union or nonunion product,
but of the right of the employees of the Company which had the contract to perform
the mitering and fitting.
Joseph Shrode admitted telling Oliver he could not seal the precut bands because
they had not been cut at the Johns-Manville shop and telling David that if the bands
arrived at Texas City without a label showing they had been cut by Johns-Manville
he was not to apply them. Had the Techalloy bands been cut by Johns-Manville
there would have been no objection even though the bands themselves were made in
a nonunion shop. Like Baker, Shrode contended that it was the loss of work cus-
tomarily performed at Johns-Manville and not the fact that they were cut by non-
union men which engendered the boycott.
B. Conclusions
There is little dispute on the facts in this case since Baker, Shrode, and Eaton all
admitted telling members of the Respondent Locals, employed by Armstrong and
Johns-Manville, not to apply mitered fittings and precut bands at the jobsites in-
volved. Plainly this constituted inducement and encouragement of individuals to re-
fuse to handle goods and perform services and restraint and coercion of employers
as those terms are used in the Act. Assuming that the objective was to retain for
the employees of Armstrong and Johns-Manville work on fittings and bands 7 which,
in at least two instances, was performed by Thorpe and Techalloy employees, the
issue remains whether the means used to obtain such an objective were unlawful. In
so assuming I concede that this was not a boycott of nonunion products and I also
concede that the articles VI and XIII of the agreement with the Contractors Associa-
tion are lawful.8
Having stated the case in a posture most favorable to the Respondents, I still find
the refusal to handle Thorpe and Techalloy products unlawful. Respondents urge
that their contract gave them the right to this work, a contention with which I dis-
agree for the exemption to Section 8(e) applies only to work to be done at the job-
site. Thus the House conferees stated (Leg. Hist., vol. 1, p. 943):
It should be particularly noted that the proviso relates only and exclusively to
the contracting or subcontracting of work to be done at the construction. The
7I also, agree, in view of Foster's testimony, that the purchases of fittings from Thorpe
were merely fill-ins, that the mitering of fittings was customarily performed by Arm-
strong employees at its Houston shop.
8 The contract was not attacked by the General Counsel.
INT'L ASSOC. OF HEAT & FROST INSULATORS, ETC. 875
proviso does not exempt from Section 8(e) agreements relating to supplies or
other products or materials shipped or otherwise transported to and delivered on
the site of the construction.
The then Senator Kennedy stated (105 Cong. Rec. 16415, Sept. 3, 1959, Leg. Hist.,
vol. 2, p. 1433) :
It should be particularly' noted that the proviso relates only to the "contract-
ing or subcontracting of work to be done at the site of the construction." The
proviso does not cover boycotts of goods manufactured in an industrial plant for
installation at the jobsite, or suppliers who do not work at the jobsite.
Respondents, then, were under a misapprehension if they believed the refusals were
justifiable under their construction of their right to protect their contract. The evi-
dence here is clear that the mitering and cutting, even when performed by Arm-
strong and Johns-Manville employees, was performed at their shops and not at the
jobsite.
Nor would Respondents have been helped if the work had been jobsite construc-
tion work for a refusal to handle goods for the purpose of enforcing such an agree-
ment is unlawful under Sand Door.9 Sand Door was specifically stated in the legis-
lative history to be controlling in construing the exemption proviso of Section 8(e).
(Leg. Hist., vol. 1, p. 943, supra; Leg. Hist., vol. II, p. 1433, supra; Leg. Hist., vol. II,
p. 1829.) 10
Nor am I impressed by the argument that this contract was, in effect, a contract
against subcontracting work usually performed by a bargaining unit. This is not such
a contract; this was clearly a contract aimed at the exemption of Section 8(e) and
I believe this is admitted by Respondents in their brief. Just as the construction in-
dustry differs from production industry, so does the construction subcontracting
clause differ from industry's subcontracting clauses and so does the exemption given
the construction industry distinguish it from the general protection given industry.
The court decision in Retail Clerks Union Local 770, Retail Clerks International
Association, AFL-CIO (United States Hardware and Paper Company, et al.) v.
N.L.R.B., 296 F. 2d 368 (C.A.D.C.), and the Board's decision on remand, 145
NLRB 307, I find inapposite. However, there seems to be no point in belaboring this
issue, the statements made in the congressional debates, Legislative History, supra,
indicate beyond argument that the Congress intended to proscribe the refusal to
handle goods which took place here."
I do not find, on the evidence submitted in this case, that Respondent International
engaged in any violation or that it participated in the decisions to order the mem-
bers of Locals 22 and 113 to refuse to use the fittings and bands. While Baker was
a vice president of the International it appears that in this case he was at all times
acting in his capacity as secretary to Local 22. The dispute was a local dispute and
I have no evidence that the International directed it or intervened in it.
IV. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action in order to effectuate the policies of the Act.
Since the Board has found violations against another local of the International
herein and against the International for conduct similar to that proscribed here and
since the Respondents have claimed the right to take action found unlawful herein to
protect their contract rights under the collective-bargaining agreement I shall recom-
mend an order designed to prevent the commission of similar and related unfair
labor practices which may reasonably be anticipated.
'Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL, et al.
(Sand Door & Plywood Co) v. N.L R.B., 357 U.S. 93.
10 This view has been adopted by the Board in International Union of Operating En-
gineers, Local Union No. 13, AFL-CIO (Tri-County Association of Civil Engineers and
Land Surveyors), 126 NLRB 688, enfd . 293 F. 2d 319 (C A. 9).
n The argument that Armstrong and Johns-Manville were the primary employers does
not help Respondents for, as the Supreme Court' held in Sand Door, when employees
strike or refuse to handle goods for their employer to compel him to cease doing busi-
ness with a third person the strike or refusal is unlawful.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings and conclusions, and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Armstrong, Johns-Manville, Thorpe, and Techalloy are employers engaged in
commerce within the meaning of the Act. Respondents are labor organizations
within the meaning of Section 2(5) of the Act. .
2. Respondent Local 113 has induced and encouraged individuals employed by
Armstrong to refuse to handle or work on materials produced by Thorpe and have
coerced and restrained Armstrong with an object of forcing or requiring Armstrong
to cease doing business with Thorpe, and has thereby violated Section 8(b)(4)(i)
and (ii)(B) of the Act.
3. Respondent Local 22 has induced and encouraged individuals employed by
Johns-Manville to refuse to handle or work on materials produced by Techalloy with
an object of forcing or requiring Johns-Manville to cease doing business with Tech-
alloy, and has thereby violated Section 8(b) (4) (i) and (ii) (B) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
5. Respondent International has not committed unfair labor practices within the
meaning of Section 8(b) (4) (i) and (ii) (B) and Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
A. Nabakowski Co. and Sheet Metal Workers International Asso-
ciation , Local No. 65, AFL-CIO and James A. Pastor
A. Nabakowski Co. and Sheet Metal Workers International Asso-
ciation, Local No. 65, AFL-CIO and Ronald E. Vaughan. Cases
Nos. 8-CA-3336-1, 8-CB-775-1, 8-CA-3336-2, and 8-CB-775-2.
September 8, 1964
DECISION AND ORDER
On April 15, 1964, Trial Examiner John F. Funke issued his De-
cision in the above-entitled proceeding, finding that the Respondents,
A. Nabakowski Co., and Sheet Metal Workers International Asso-
ciation, Local No. 65, AFL-CIO, had engaged in and were engaging
in certain unfair labor practices and recommending that they cease
and desist therefrom and take certain affirmative action, as set forth
in the attached Trial Examiner's Decision. Thereafter, Respondent
Local No. 65 filed exceptions to the Trial. Examiner's Decision and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
148 NLRB No. 94.