Local 22; Int'l Assn. of Heat & Frost Insulators

National Labor Relations Board - Board Decisions

Feb 9, 1965

150 N.L.R.B. 1626 (N.L.R.B. 1965)

1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The parties stipulated, and we find, that the following employ-
ees of the Employer constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b)' of the
Act :
All production and maintenance employees at the Employer's
Sacramento, California, bottling plant, excluding office clerical
employees, guards, and supervisors, as defined in the Act.
[Text of Direction of Election omitted from publication.]
Local 22, International Association of Heat and Frost Insulators
and Asbestos Workers, AFL-CIO [Mundet Cork Company]
and Houston Insulation Contractors Association . Case No.
23-CC-142. February 9, 1965
DECISION AND ORDER
On November `20, 1964, Trial Examiner Wellington A. Gillis
issued his Decision' in the above-entitled proceeding,, finding that
the Respondent had engaged in' and was engaging in certain unfair
labor practices in violation of the Act, and recommending that it
cease and desist therefrom and take certain affirmative action,
as set forth in 'the attached Trial Examiner's Decision. There-
after the Respondent and the Charging Party each filed exceptions-
to the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection 'with this .case to a three-
member panel [Chairman McCulloch and Members Fanning 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 Examiner's Decision, the exceptions and briefs, and the entire
record in this case, and hereby adopts the Trial Examiner's findings,
conclusions, and recommendations except as noted below.'
ORDER
Pursuant to Section 10(c) of the National'Labor Relations Act,
as amended, the National Labor Relations Board hereby orders
'In view of our agreement with the Trial Examiner ' s ultimate finding that an object
of the Respondent ' s refusal to install the Johns -Manville jacketing was to force Mundet
to cease doing business with Johns -Manville because its product did not carry the Union
label, we find it unnecessary to pass on the alternative ground in which the Trial
Examiner stated he would find a violation of the Act if it was assumed that the Union's
object was other than the one he actually found.
150 NLRB No. 156.
LOCAL 22; INT'L ASSN. HEAT &'FROST INSULATORS 1627
that the' Respondent Local - 22, International Association of Heat
and Frost Insulators and Asbestos Workers, AFL-CIO, its officers,
agents, and representatives, shall:
1. Cease, and desist from :
(a) 'Ind'ucing, or encouraging any individual employed by Mun-
det 'Cork Company to refuse to install or apply products or mate-
rials manufactured or' fabricated for use in the insulation industry,
by Johns-Manville, or by any other person, because it does not
bear the Union label. '
(b) Threatening, coercing, or restraining Mundet where an object
thereof is to force or require Mundet not to purchase or install or
apply products or materials manufactured or fabricated for use in
the insulation ^ industry by Johns-Manville, or by any other person,
because such products or materials do not bear the Union label.
2. Take the following affirmative action designed to effectuate
the policies of the Act :
(a) Post, in conspicuous places in its office, meeting hall, and
other' places where Respondent customarily posts its notices, copies
of the attached notice marked "Appendix."' Copies of said
notice, to be furnished by the Regional Director for Region 23,
shall, after being duly signed by an official of the Respondent, be
posted by it immediately upon receipt thereof, and be maintained
by it for at least 60 consecutive days thereafter. 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 said Regional Director for Region 23 signed copies
of the, aforesaid • notice for posting by Houston Insulation Con-
tractors Association, Mundet Cork Company, and Johns-Manville
Sales Corporation, if they are willing, at places where they
customarily post notices to their employees.
(c) Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken
to comply herewith.
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby give notice.that :
WE WILL' NOT induce or encourage any individual employed
by Mundet Cork Company to refuse to install or apply products
a
1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or materials manufactured or fabricated for use in the insu-
lation industry, by Johns-Manville Sales Corporation, or by
any other person, because they do not bear the Union label.
WE WILL NOT threaten, coerce, or restrain Mundet Cork
Company where an object thereof is to force or require Mundet
Cork Company not to purchase, install, or apply products
or materials manufactured or fabricated for use in the insu-
lation industry by Johns-Manville Sales Corporation, or by
any other person because they do not bear the Union label.
LOCAL 22, INTERNATIONAL ASSOCIATION OF HEAT
AND FROST INSULATORS AND ASBESTOS WORKERS,
AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------_-----
(Representative ) ( Title)
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, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas,
Telephone No. Capitol 8-0611, Extension 296, if they have any ques-
tions concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on December 26, 1963, by Houston Insulation Contractors
Association , hereinafter referred to as Houston Insulation , the General Counsel of
the National Labor Relations Board issued a complaint on January 24, 1964, against
Local 22, International Association of Heat and Frost Insulators and Asbestos Work-
ers, AFL-CIO, hereinafter referred to as the Respondent , the Union, or Local 22,
alleging that the Respondent has engaged in certain unfair labor practices in violation
of Section 8(b)(4)(1 ) and (ii )(B) and Section 2(6) and (7) of the National Labor
Relations Act, as amended, 29 U.S.C., Section 151, et seq ., hereinafter referred to as
the Act. Thereafter, the Respondent filed a timely answer to the complaint denying
the commission of any unfair labor practices.
On March 30 and 31, 1964, pursuant to notice , a hearing was held in Houston;
Texas, before Trial Examiner Wellington A. Gillis at which all parties were repre-
sented by counsel , and were afforded full opportunity to be heard, to examine and
cross-examine witnesses , to introduce evidence pertinent to the issues , and to engage
in argument . Subsequent to the close of the hearing , timely briefs were filed by all
parties.
Upon the entire record in this case , and from my observation of the witnesses and
their demeanor on the witness stand, and upon substantial , reliable evidence "con-
sidered along with the consistency and inherent probability of testimony" ( Universal
Camera Corporation v. N.L.R.B., 340 U.S. 474, 496), I make the following:
FINDINGS AND CONCLUSIONS
1. COMMERCE
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
LOCAL 22, INT'L ASSN. HEAT & FROST INSULATORS 1629
Houston, Galveston, Beaumont, and Port Arthur, Texas, and exists for the purpose,
inter alia, of negotiating and administering collective-bargaining agreements with the
Respondent, 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 in excess of $10
million.
Mundet Cork Company, hereinafter referred to as Mundet, a member employer
of Houston Insulation with its principal office at North Bergen, New Jersey, is engaged
at Houston, Texas, in the sale and installation of commercial insulation products
pursuant to contract in the building and construction industry, for which business it
annually receives in Texas products shipped from other States other than the State
of Texas valued in excess of $50,000 and also sells and installs products outside the
State of Texas valued in excess of $50,000.1
Johns-Manville Sales Corporation, hereinafter referred to as Johns-Manville, a
member employer of Houston Insulation, is a Delaware corporation with its principal
office 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 on a distributionship basis, in the build-
ing and construction industry from which business it annually sells and ships products
outside the State of Texas valued in excess of $50,000.
C. H. Leavell Construction Company, hereinafter referred to as Leavell, is engaged
at Clear Lake, near Houston, Texas, in the construction of a number of buildings for
the U.S. Army Corps of Engineers, to be used by the National Aeronautics and Space
Administration as part of its Manned Space Craft Center, herein called NASA Center.
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, Mundet, and Johns-Manville are, and have been at all times
material herein, persons within the meaning of Section 2(1) of the Act and employers
engaged in commerce or in an industry affecting commerce within the meaning of
Section 2(6) and (7) of the Act, respectively.
IT. THE LABOR ORGANIZATION INVOLVED
Local 22, International Association of Heat and Frost Insulators and Asbestos
Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of
the Act.
TH. THE ALLEGED UNFAIR LABOR PRACTICES
Whether, in refusing to permit Mundet's employees to install aluminum jacketing
fabricated by Johns-Manville at the latter's shop and delivered to the Mundet jobsite,
the Union engaged in conduct violative of Section 8(b) (4) (i) and (ii) (B) of the Act.
B. The facts
1. Preliminary statement
Leavell, in the performance of its contractual obligation with the U S. Army Corps
of Engineers, subcontracted the mechanical portion of the NASA project to Natkin
and Company, hereinafter referred to as Natkin, which, in turn, subcontracted the
pipe and duct insulation work on some 12 buildings to Mundet. Part of Mundet's
contract with Natkin called for the installation of insulating material pertaining to
hot and chill waterpipes in certain subsidiary tunnels running from a main tunnel
to the various buildings.
As above noted, both Mundet and Johns-Manville, from whom Mundet purchased
certain fabricated aluminum jacketing giving rise to the instant dispute, are members
of Houston Insulation, and both are signatories to a collective-bargaining contract
between Houston Insulation and Local 22, which contract contains the following two
articles pertaining to the issues here involved:
ARTICLE VI
The Employer agrees that he will not sublet or contract out any work described
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
1 Subsequent to the issuance of the complaint, Mundet, on February 7, 1964, merged
with, and now comprises a division of, Baldwin-Ehret-Bill Corporation
775-692-65-vol 150-104
1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
corporation or their representative or agents shall execute any part of the work
of application of materials and in no case shall any member 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 application
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 is to include alterations and repairing of work similar to the above and
the use of all materials for the purpose mentioned.
2. The inducement
Toward the latter part of 1963, Mundet ordered from Johns-Manville, and caused
to be delivered to the jobsite, 1,845 feet of ".016 aluminum (jacketing) w/moisture
barrier and S lock fold & one piece snap strap," which was fabricated in the Johns-
Manville shop by an employee member of the Respondent Union. Upon delivery
in November, Mundet's employees were instructed by the Union's steward on the
job not to install the jacketing. Mundet's branch manager, E. J. Stansbury, called
the Union's business agent, Joseph Shrode, and, in reply to Stansbury's inquiry as to
why the Union was refusing to install the material, was told by Schrode, "because it
didn't have labels on it, he couldn't be sure that a member of Asbestos Workers No. 22
had fabricated it." 2 When Stansbury replied that the jacketing was fabricated by a
member of the Union, Schrode asked, "Well, who was it? Was he working for you?"
to which Stansbury answered, "No, he was working for Johns-Manville." Schrode
then told Stansbury that he would like to have proof of the fact, and Stansbury told
him that he could get proof.3 Shortly after this telephone conversation, Stansbury,
upon advice of counsel, procured two affidavits from Johns-Manville indicating that
the disputed jacketing had been obtained from Johns-Manville and had been cut and
fabricated by R. C. Oliver, a member of the Union employed by Johns-Manville at
its Houston shop. By letter dated December 5, 1963, enclosing such affidavits,
Shrode was so. advised. Approximately 2 weeks later, in reply to Stansbury's further
inquiry of whether the Union was going to apply the aluminum jacketing, Shrode
told him "No, that we had violated Article VI of our contract, the subletting of
materials." 4 Thereafter, the Union continued to refuse to install the jacketing until
its refusal was enjoined by the U.S. District Court for the Southern District of Texas.
These facts clearly show that Mundet's employees refused to install the aluminum
jacketing upon its arrival at the jobsite and that the Union instructed its members not
to handle the material. Accordingly, as this constitutes inducement and encourage-
ment of employees and restraint and coercion of employers within the meaning of
Section 8(b) (4) of the Act, the sole question for determination concerns the Union's
object in instructing Mundet's employees not to handle the jacketing.5
2 The quoted portion is taken from Stansbury's credited testimony Shrode testified
that he told Stansbury that "the jacketing didn't have any identifying marks of who
fabricated it "
8 The above-quoted material is taken from the credited testimony of Shrode. With
this exception, however, to the extent that the record reflects Shrode's testimony as
inconsistent with that of other witnesses, it is not credited. In addition to my un-
favorable evaluation of Shrode's demeanor on the witness stand and his inconsistent
recollection as to which of two contract provisions there had been strenuous objection to
by Houston Insulation during earlier contract negotiations, Shrode's testimony on direct
and cross-examination concerning an understanding between the parties pertaining to a
gentlemen's agreement and a letter to be subsequently executed relating to the existing
contract is inconsistent and credibly refuted by other witnesses.
4 Stansbury, from whose testimony the above conversation is based, testified without
refutation that not until this time had the contract been urged as a basis for refusing
to install the jacketing.
Section 8(b) (4) (i) and (ii) (B) provides in pertinent part that*
(b) It shall be an unfair labor practice for a labor organization or its agents-
( • • • s s s
(4) (1) 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, trans-
LOCAL 22, INT'L ASSN. HEAT & FROST INSULATORS 1631
Preliminary to a discussion of the central issue, however, resolution of .a dispute
between the parties involving the specification requirements of a part of the work to
be performed by Mundet under its building contract with Natkin on the NASA
project is necessary. The evidence discloses that prior to Mundet's advent on the
scene, Johns-Manville had been the subcontractor on a different phase of the NASA
project, and, pursuant to its contract obligation, had insulated the pipes in the main
tunnel leading to the smaller tunnels in which Mundet was to perform its work.
Johns-Manville, in completing its phase of the project, had, upon receiving approval
from the Corps of Engineers, insulated the main tunnel piping by applying a Metal-On
aluminum jacketing with a built-in Z-fold moisture barrier and one-piece aluminum
snap-strap. The original specifications upon which Mundet had bid required that
"Insulation of piping in tunnels shall be the same type and thickness and finish to
match previous construction." [Emphasis added.] Thus, based upon these specifica-
tions, Mundet purchased from Johns-Manville the identical insulation product used
by the latter on the main tunnel piping. The aluminum jacketing thus described was
eventually installed by Mundet's employees and such installation was approved by
the U.S. Corps of Engineers.
At the hearing in this proceeding, the Respondent introduced evidence disclosing
that, subsequent to the issuance of the original specifications, the Corps of Engineers
issued amended specifications to Leavell, the general contractor, deleting the above-
quoted paragraph, and permitting the use of an alternate covering on the piping. The
Respondent contends that, as Mundet was not contractually required to match the
previous Johns-Manville main tunnel construction, Mundet was not required to use
the Johns-Manville Metal-On product, and accordingly, Mundet's employees could
have performed on the job the insulation work required of Mundet.
I would find merit to the Respondent's position but for the fact that, as asserted by
the General Counsel, until the Respondent introduced the amended specifications at
the instant hearing, Mundet had, at no time, been made aware of the fact that the
original specifications calling for matching previous construction had been amended.°
In view of the fact that this was at no time raised by the Union, either at the time of
the Union's refusal to handle the product, or during the court injunction hearing, it is
reasonable to assume that even the Union was not previously aware of the fact that
Mundet was not obligated to match the previous construction. Accordingly, under
these circumstances, and particularly in the absence of any evidence tending to show
that Mundet was under any impression other than that it was required to match the
Johns-Manville insulating product, I find that the Respondent is estopped to assert
this aigument at this point in the proceeding.
3. The object
Accordingly, as above set forth, the issue presented for determination is whether
the Union, in refusing to install the particular aluminum jacketing product upon its
arrival at the Mundet jobsite, did so for a reason proscribed by the Act. An affirma-
tive answer requites a finding that such activity by the Union was secondary in nature,
that an object thereof was to force.Mundet to cease using the Metal-On aluminum
jacketing fabricated by Johns-Manville.
The General Counsel contends that the Union's object in refusing to handle the
aluminum jacketing was to force Mundet to cease doing business with Johns-Manville,
and that the Union's activity was an attempt to prevent union employers (employers
under contract with the Union) from purchasing materials or supplies from nonunion
sources. The General Counsel further contends that articles VI and XIII of the
contract, as here interpreted by the Union, constitute hot cargo clauses illegal under
port, or . . . to I erform 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 thee, if is:
a + * t t m x
(B) forcing or requiring any person to cease using, selling, handling, transport-
ing, or otherwise dealing in the products of any other producer, processor, or manufac-
turer, 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 other-
wise unlawful, any primary strike or primary picketing . . . .
9 As credibly testified to by Stansbury, Mundet's branch manager, it was abundantly
apparent to me that, at the time that the amended specifications were first mentioned
at the hearing, Stansbury, as well as counsel for the General Counsel, were surprised
to learn of the existence of the amended specifications.
1632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(e) of the Act, and, accordingly, the Union's action in attempting to enforce
its interpretation of said clauses herein constitutes a violation of Section 8(b) (4) (B)
of the Act.7
The Respondent contends that its sole object in refusing to install the jacketing
was that of enforcing articles VI and XIII of the contract, thereby preserving to
employees of Mundet on the jobsite the work of fabricating the jacketing. In this
regard, the Respondent takes the position that the fabrication work connected with
the aluminum jacketing is work traditionally performed by unit employees of Mundet,
that, under articles VI and XIII of the contract, such work could and should have
been performed on the job by Mundet's employees, and that these contract provisions
precluded Mundet from subletting the preparation of the product to another employer
(notwithstanding that in this instance the fabrication of the product was performed
by a Local 22 member in the employ of-an employer under contract with Local 22).
-In an attempt to ascertain the Union's reasons for refusing to permit its members
to handle items not bearing the union label generally, and the Johns-Manville alumi-
num jacketing in particular, the evidence herein discloses that notwithstanding the
fact that Johns-Manville, like Mundet, is a signatory employer to Local 22's contract,
and that the former's employees are members of Local 22, Johns-Manville did not
apply the Union decal in fabricating and producing the Metal-On jacketing here in
dispute. With respect to the decal or label, it is abundantly clear from this record,
as well as from the Board's decision in a number of cases involving this Union and/or
its international parent, including International Association of Heat and Frost Insu-
lators and Asbestos Workers (Houston Insulation Contractors Association), 148 NLRB
866,8 that the device of attaching a union decal to work serves a number of purposes.
Thus, in addition to assisting unions in policing no-subcontracting provisions of con-
tracts with signatory employers, the presence of a union decal on work assures the
union that such work was performed by an employer under contract with the Union 9
It further assures the Union that the work of a contracting employer will not be
sublet by the latter to a "non-union" employer, which, as testified to by Schrode, was
one of the reasons the Union devised the union decal. Similarly, as admitted by
Schrode, another reason for devising the union decal is to preclude an employer from
purchasing fabricated materials from an employer not under contract with the Union,
or, as Schrode phrased it, "to keep the ones that was [sic] under contract, honest."
Finally the ability of the Union to require the use of the union label in the construc-
tion industry generally is a means by which it can promote and extend its control
over employers in the industry.
Thus, recognizing the existence of more than one reason for the use of a union
label, in answering the question as to whether the Union's object in refusing to install
the Metal-On aluminum jacketing in this case was one proscribed by the Act, the
question is first presented as to whether, had the aluminum jacketing contained union
labels upon its delivery to the jobsite, Mundet's employees would have applied the
item . I am of the opinion, and so find, that, contrary to the Respondent's assertion,
Mundet's employees would have done so. As admitted by Local 22's business agent,
Schrode, and stipulated to by the parties, Schrode had given instructions to Local 22's
members working under employers in contract with the Union that they were not to
install fabricated items that did not bear union decals, and that if fabricated products
were delivered to jobsites without the union decal they were not to be installed.10
Thus, had the aluminum jacketing here involved been labeled with the union decal,
there would have been no reason on the part of Mundet's employees to question the
propriety of installing the fabricated jacketing.
Secondly, Schrode's statements to Stansbury when'first approached by the latter
concerning the Union's reason for refusing to install the jacketing supports the position
that the Union's objection was that concerning the lack of a union label rather than,
7 As to the latter position, the General Counsel , although not attacking the validity
of the contract , asserted that articles VI and XIII are ambiguous and were never
intended by the parties to create an absolute ban on subcontracting work or purchas-
ing materials for installation at the jobsite In view of my disposition of the case,
I deem it unnecessary to pass upon this contention.
8 See International Association of Heat and Frost Insulators, etc. (Speed -Line Manu-
facturing Co, Inc ), 137 NLRB 1410 ; International Association of Heat and Frost Insula-
tors, etc. ( Insul - Coustic Corporation), 139 NLRB 659 , International Association of Heat
and Frost Insulators , etc. (Speed-Lane Manufacturing Company, Inc .), 139 NLRB 688.
9 Schrode admitted that only "union employers" can obtain union decals.
11 It must be noted that such instructions were limited to fabricated items not bearing
the union label, and did not forbid union members from handling items generally.
LOCAL 22, INT'L ASSN. HEAT & FROST INSULATORS 1633
as subsequently proffered by the Respondent, the enforcement of its contract. On
this occasion, Schrode, in no way adverting to the contract, replied to Stansbury's
inquiry by stating that "it didn't have labels on it, he couldn't be sure that a member
of Asbestos Workers No. 22 had fabricated it." The fact that, upon being apprised
immediately by Stansbury that the jacketing had been fabricated by someone other
than a Mundet employee, specifically, by a member of Local 22 employed by Johns-
Manville, Schrode countered with a request for proof of this fact, rather than with
an argument that Mundet's employees were being deprived of work or that the Local
22 member fabricating the item was not a Mundet employee on the jobsite, warrants
the finding that Schrode was concerned over the failure of the jacketing to contain
a union label.11 Even Schrode's explanation on direct examination as to why he
needed proof of what company employee fabricated the aluminum jacketing that
was delivered to the jobsite (past incidents of falsification by contracting employers)
does not alter the above conclusion.
Moreover, were it to be assumed, contrary to my findings, that the Union's sole
object of refusing to install the jacketing was that of enforcing articles VI and XIII
of the contract, thus preserving to employees of Mundet on the jobsite the work of
fabricating the jacketing, credible record evidence discloses, and I find, that: (1)
Although the work of fabricating aluminum insulating material may well be work
traditionally performed by Mundet's employees, the work of fabricating the particular
aluminum jacketing with Z-fold moisture barrier and snap strap had never before
been performed on the job, (2) such work could not be performed at the jobsite with
the normal tools of an insulator, and (3) Mundet did not possess the necessary tools,
and to enable Mundet's employees to fabricate this product on the jobsite Mundet
would have been required to purchase equipment and tools that it did not own. Under
these circumstances, I find that the work of fabricating the Metal-On aluminum jack-
eting with Z-fold moisture barrier and snap strap was not work traditionally performed
by Mundet employees, and, for this reason, the contract did not preclude Mundet
from purchasing the Metal-On aluminum jacketing from Johns-Manville.12 Thus,
even if it were found that an object of the Union's refusal to install the Metal-On
aluminum jacketing were based upon a desire to preserve the disputed work for
Mundet's employees, in view of the above, and notwithstanding the contract provisions
relied upon by the Respondent, I find that such is outside that permitted by the Act.
Moreover, were a contrary finding warranted, the existence of a lawful object could
not serve as a defense where, as here, the activity was also designed to accomplish
an unlawful object 13
Having found that an object of the Respondent's refusal to install the aluminum
jacketing on the Mundet jobsite was to force Mundet to cease doing business with
Johns-Manville because its product did not carry the union label, I find that, by its
secondary activity, the Respondent violated Section 8(b) (4) (i) and (ii) (B) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in connection with the
operations of the Company as set forth in section 1, 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
It having been found that the Respondent engaged in certain unfair labor practices
in the form of unlawful secondary conduct, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action which is necessary to
effectuate the policies of the Act.
11 Stated another way, had Schrode objected to the fact that Mundet's employees were
being deprived of jobsite work to which they were entitled under the contract (the
Respondent's sole position on this matter and a position that Schrode did not take
with Stansbury until several weeks later), it is reasonable to assume that Schrode would
have so indicated to Stansbury immediately upon learning that the jacketing arrived on
the jobsite already fabricated
12 Thus, the instant fact situation is to be distinguished from that in International
Association of Heat and Frost Insulators, etc (Houston Insulation Contractors Associa-
tion), 148 NLRB 866, a case involving Local 22, Houston Insulation, and the same contract,
wherein employees were clearly deprived of preparation work to which they were entitled.
13 See International Association of Heat and Frost Insulators, etc. (Speed-Line Manu-
facturing Co., Inc.), supra, at 1418.
1634 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. Houston Insulation Contractors Association , Mundet Cork Company, Johns-
Manville Sales Corporation are employers engaged in commerce within the meaning
of the Act.
2. Local 22, International Association of Heat and Frost Insulators and Asbestos
Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of
the Act.
3. By inducing and encouraging individuals employed by Mundet to refuse to
handle or work on materials produced by Johns-Manville and by coercing and
restraining Mundet with an object of forcing or requiring Mundet to cease doing
business with Johns-Manville , Local 22 has 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.
[Recommended Order omitted from publication.]
Bause Super Drug Stores , Inc. and Retail Clerks, Managers &
Salesmen 's Union, Local 1393. Case No. 4 CA-3304. Febru-
ary 9, 1965
DECISION AND ORDER
On December 18, 1964, Trial Examiner Paul Bisgyer issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Decision. Thereafter, the
Respondent filed exceptions to the Decision and a supporting brief,
and Counsel for the General Counsel filed cross-exceptions and
a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection
with this case to a three-member panel [Members Fanning, Brown,
and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
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, cross-exceptions and
briefs, and the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order, the Order
recommended by the Trial Examiner and orders that Respondent,
150 NLRB No. 160.