United Assn. Pipe Fitters Local 455, Etc.

National Labor Relations Board - Board Decisions

Aug 5, 1965

154 N.L.R.B. 285 (N.L.R.B. 1965)

UNITED ASSN. PIPE FITTERS LOCAL 455, ETC. 285
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, Room 2023,
Federal Office Building, 550 Main Street , Cincinnati , Ohio, Telephone No. 381-2200.
United Association Pipe Fitters Local Union No. 455 and United
Association Plumbers & Gasfitters Local Union No. 34, both
affiliated with the United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO,1 and St. Paul Association
of Plumbing, Heating and Mechanical Contractors , Inc.,' et al.
and United Association Pipe Fitters Local Union No. 455 and
United Association Plumbers & Gasfitters Local Union No. 34,
both affiliated with the United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO, and Upper Midwest
Piping, Incorporated and United Association Pipe Fitters Local
Union No. 455, affiliated with the United Association of Jour-
neymen and Apprentices of the Plumbing and Pipe Fitting In-
dustry of the United States and Canada, AFL -CIO (D. W.
Hickey Co ., Inc., and Minnesota Mining & Manufacturing Com-
pany) and American Boiler Manufacturers Association: Cases
Nos. 18-CE-4, 18-CE-6, and 18-CC-143. August 5, 1965
DECISION AND ORDER
On July 14, 1964, Trial Examiner Reeves R. Hilton issued his Deci-
sion in the above-entitled proceeding, finding that the Respondents,
Local Union No. 455 and the Contractors Association, its member-
contractors, and Upper Midwest Piping, Incorporated, had engaged
in and were engaging in certain unfair labor practices and recommend-
ing that they cease and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's Decision. He also
found that the Respondent Unions had not engaged in certain other
alleged unfair labor practices, and recommended that the complaint
be dismissed with respect thereto. Thereafter, the General Counsel,
the Respondent Union, and the Charging Party filed exceptions to the
Trial Examiner's Decision and supporting briefs.
The National Labor Relations 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 con-
sidered the entire record in these cases, including the Trial Examiner's
i Herein referred to respectively as Local Union No. 455 and Local Union No. 34, and
jointly as the Respondent Unions.
2 Herein referred to as the Contractors Association.
3 Herein referred to as the Charging Party
154 NLRB No. 12.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Decision, the exceptions, and the briefs,4 and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner only to
the extent consistent herewith.
1. We find, in agreement with the Trial Examiner, that Local Union
No. 455 did not threaten, coerce, or restrain Bettenberg, Townsend,
Stolte & Comb Company, in violation of Section 8(b) (4) (ii) (A) or
(B) of the Act.5 We also agree with the Trial Examiner that Local
Union No. 34 has not engaged in any conduct violative of the National
Labor Relations Act, as amended, and we shall dismiss the complaint
with respect to it.
2. The Trial Examiner found (1) that Local Union No. 455 and
the Contractors Association and its contractor members, in the course
of conduct occurring in connection with the 3-M and the Pierre Aircon
construction projects, and Local Union No. 455 and Upper Midwest
Piping, Incorporated, in the course of conduct occurring in connection
with the Upper Midwest construction project, interpreted, construed,
and applied article II, section 1(c), of the 1963 collective-bargaining
agreement, referred to as the "fabrication clause," in a manner viola-
tive of Section 8 (e), and (2) that Local Union No. 455 also violated
Section 8(b) (4) (ii) (A) and (B) in the course of this conduct. For
the reasons set forth below, we agree that Local Union No. 455 vio-
lated Section 8(b) (4) (ii) (B) by its conduct in connection with the
3-M project, but we do not find the conduct of the Respondents viola-
tive of the Act in any other respect.
3. The 1963 collective-bargaining agreement: So-called packaged
boilers, or boilers with trim piping attached at the factory, were being
installed in the St. Paul area in steadily increasing numbers, resulting
in a considerable decrease in the trim-piping installation work to be
done at the jobsite which had previously been available to members of
Local Union No. 455. The Union therefore sought, and finally obtained
in its 1963 collective-bargaining agreement with the Contracting Asso-
ciation Upper Midwest Piping, Incorporated, and other mechanical
contractors in the area, a fabrication clause which provided, in sub-
stance, that, "As a primary working condition," trim piping "shall
4 The Charging Party's request for oral argument before the Board is hereby denied
as the record, including the exceptions and briefs , adequately presents the issues and the
positions of the parties.
5 We do not , however, adopt the Trial Examiner 's further finding that the evidence
fails to show that Bettenberg Company is engaged in commerce . The Trial Examiner
found, and the record shows, that Bettenberg Company, alleged to be a secondary person
herein, is engaged in performing services as consulting engineers and architects in the
building and construction industry ; and that the other alleged primary and secondary
employers affected by the conduct involved herein are employers or persons engaged in
commerce or operations affecting commerce . In these circumstances , we find that Betten-
berg Company is a person engaged in an industry affecting commerce within the mean-
ing of Section 8(b) (4) of the Act. Madison Building & Construction Trades Council,
et at. ( Wallace Hildebrant, at al, d/b/a H & K Lathing Co., et al. ), 134 NLRB 517;
Sheet Metal Workers International Association , Local Union No. 299, AFL-CIO, et at.
( S. M. Kisner ( deceased ), et at ., d/b/a S. M. Kisner and Sons ), 131 NLRB 1196.
UNITED ASSN. PIPE FITTERS LOCAL 455, ETC. 287
be fabricated on the jobsite or in the shop of an Employer within the
bargaining unit who is bound by this agreement ." The agreement
also established a fabrication committee made up of representatives of
the parties to determine disputes.
4. The 3-M incident: About July 3, 1963, the Minnesota Mining &
Manufacturing Company, herein referred to as 3-M, ordered from Orr
& Sembower , Inc., through its area agent, Blesi -Evans Company, three
packaged boilers to be delivered in 10 weeks, and, on July 11, 3-M
signed an agreement with D. W. Hickey Co., Inc., to install the boilers
in the Benz Building which 3-M was remodeling, Hickey Company, a
member of the Contractors Association, was a party to the 1963 agree-
ment. On three separate occasions , Mooney, a business representative
of Local Union No. 455, informed Hickey Company that the packaged
boilers which had been ordered were in violation of the contract and,
if they arrived "prepiped," his men would not install them. On
August 16, Mooney warned 3-M's industrial relations director, Roth-
stein, that 3-M "was going to have a problem over the installation of
these new boilers" because of the contractual fabrication clause, and, if
the men were ordered to install the boilers, "they may refuse" to do so.
On August 27, the fabrication committee established by the 1963
agreement , on which both the Contractors Association and Local Union
No. 455 were represented, held a meeting at the request of the Local
Union. After Mooney related his efforts "to head off a dispute" at the
Benz Building , the committee "agreed" that the Hickey Company's
contract with 3-M to install the boilers was in violation of the 1963
agreement, and that Hickey Company should inform 3-M "that work
on the Benz Building would have to cease unless the problem of ship-
ping package boilers with trim piping attached was resolved." There-
after, Moriarty, executive vice president of the Contractors Associa-
tion and recording secretary of the fabrication committee, so informed
Hickey Company by letter and sent a copy to 3-M.
Representatives of Local Union No. 455 met with 3-M officials on
September 2. Moriarty , who was also at the meeting , expressed the
opinion that the 1963 agreement prohibited installation of packaged
boilers. At that meeting , and at subsequent meetings on September 6
and 12, the Union representatives present reaffirmed their position
"that if the boilers come in with piping formations attached, that we
would not install them." Thereafter 3-M notified Orr & Sembower to
withhold shipment of the boilers, which, although ready to be shipped
by September 13, were withheld in accordance with this notice. About
October 5 , 3-M agreed to have the disputed piping removed from the
boilers, and Mooney agreed that his members would then install them.
Pursuant to instructions from 3-M , Orr & Sembower removed the pip-
ing items specified and, on October 11, shipped them in a separate con-
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tainer along with the boilers . When the boilers arrived at the jobsite,
Rothstein and Mooney , after inspecting them to make certain the
objectionable parts had been removed , signed a memorandum stating
that Mooney had advised 3-M that members of Local Union No. 455
would not install the packaged boilers at the Benz Building in St. Paul,
and that 3-M had revised its specifications to provide that certain fab-
ric,, tion work on the boilers would be performed at the jobsite. On the
same day , Hickey Company 's employees , members of Local Union No.
455, began reassembling the parts and installing the boilers.
(a) The alleged 8(e) violation : No issue is here presented concern-
ing the legality of the execution of the fabrication clause.6 The issue
raised by the complaint is whether the Contractors Association, its
contractor -members ( including Hickey Company ),' and Local Union
No. 455, by their conduct in connection with the 3 -M project , entered
into a new agreement construing , interpreting , and applying the fab-
rication clause in a manner violative of Section 8 (e).
As noted above , the 1963 agreement established the fabrication com-
mittee to handle disputes . This committee met on August 27 and
reached agreement that Hickey Company's contract with 3-M, in which
it agreed to install the packaged boilers in the Benz Building, was a
violation of the fabrication clause, and that work on this building
would have to cease unless the packaged -boilers issue was resolved. It
is clear from these facts that the committee members entered into a
new ad hoc agreement on August 27 . It is likewise clear that both
the Contractors Association and Local Union No. 455 , whose represent-
atives were present and participated in the August 27 meeting, were
parties to this agreement , and that Hickey Company was also a party
by virtue of its delegation of bargaining authority to the Association.
Finally, it is clear and we find that this new agreement , which inter-
preted the fabrication clause as prohibiting the installation of pack-
aged boilers , was designed to preserve , obtain , or reacquire for employ-
ees in the Contractors Association unit who were members of Local
Union No. 455 , the work of attaching the trim piping which employees
in this unit had historically performed. Therefore , to the extent that
its purpose was work preservation , this agreement would fall outside
9 We find no merit in the contention of the Charging Party that the Board should find
the fabrication clause per ae violative of Section 8(e). As the Trial Examiner found,
and as acknowledged in the brief of the Charging Party, the General Counsel did not
allege in the complaint, or urge at the hearing that execution of this clause, in itself,
constituted a violation of Section 8(e) even though there was no Section 10(b) bar to
such an allegation. See United Association Pipe Fitters Local Union No. 539, at al.
(American Boiler Manufacturers Association), 154 NLRB 314, issued simultaneously
herewith, in which the Board found no merit in a similar contention raised by the same
Charging Party.
We note that 3-M was not a member of the Contractors Association, was not named
in the complaint as a respondent, and no agreement between it and Local Union No. 455
is alleged as a violation of Section 8(e).
UNITED ASSN . PIPE FITTERS LOCAL 455, ETC. 289
the scope of Section 8 (e).11 This agreement, moreover, pertained solely
to trim-piping work to be done on the boilers to be installed at this proj -
ect. As these boilers had been ordered by 3-M Company, neither the
Contractors Association, nor any of its members, including Hickey
Company which had contracted merely to install the boilers, was in a
position to assign the trim-piping work to Hickey's employees as
sought by the Union. Even if the Respondent Employers are there-
fore to be regarded as secondary employers and the August 27 agree-
ment as a "hot goods" agreement within the scope of Section 8 (e),9 the
agreement was, nevertheless, protected by the construction industry
proviso to that section because it related to construction site work.
Thus, the August 27 agreement prohibited entirely the installation of
packaged boilers at this construction site.10 The agreement clearly did
not constitute an attempt to prescribe conditions under which or by
whom trim piping could be installed at the factory. Moreover, al-
though the fabrication clause might be read as contemplating that
trim-piping work could be performed in the shop of an employer, the
legality of that clause is not here in issue. It is clear that the August 27
agreement by its terms indicates no intent that the trim-piping work
here involved should be done at any location other than at the jobsite,
and there is no evidence that the contracting parties intended any other
location.li Accordingly, we find, contrary to the Trial Examiner, the
General Counsel has failed to establish that a violation of Section 8 (e)
occurred at this project.
(b) The alleged 8(b) (4) (ii) (A) violation: As we have found that
the August 27 agreement was not prohibited by Section 8(e), as the
memorandum agreement between 3-M and Local Union No. 455 signed
by Rothstein and Mooney on October 16 is not alleged to be violative
of Section 8(e), and as there is no evidence that Local Union No. 455
was seeking any agreements other than the ones it obtained, we find that
the Union did not violate Section 8(b) (4) (ii) (A).
8 Cf. Service and Maintenance Employees ' Union, Local No. 399, AFL-CIO ( Superior
Souvenir Book Company ), 148 NLRB 1033; 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, 449. Member Fanning
concurs in this finding for the reasons expressed in United Association Pipe Fitters Local
Union No. 539 , et al. ( American Boiler Manufacturers Association ), supra, footnote 12.
g Compare Ohio Valley Carpenters District Council, etc . ( Cardinal Industries, Inc.)
(Member Brown dissenting ), 144 NLRB 91, 93, enfd. 339 F. 2d 142 (C.A. 6) ; Local 5,
United Association of Journeymen and Apprentices of the Plumbing and Pipefitting In-
dustry, etc . (Arthur Venneri Company ) ( Member Fanning dissenting on other grounds),
137 NLRB 828, enfd. 321 F. 2d 366 (C.A.D.C.).
10 See Ohio Valley Carpenters District Council, etc . ( Cardinal Industries, Inc.), 136
NLRB 977, 988.
ll Ohio Valley Carpenters District Council, etc . ( Cardinal Industries, Inc.) supra,
989, relied on by the Trial Examiner, is inapposite . The agreement in that case which
the Board found not protected by the proviso, unlike the August 27 agreement in the in-
stant case , permitted the use of prefabricated materials on the project site but only if
they were made within the union 's jurisdictional area by outside carpenters who were
members of the union and/or employed under the union 's contract conditions.
206-446-66-vol. 154-20
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) The 8(b) (4) (ii) (B) violation: This section, in substance, pro-
hibits a union from threatening, coercing, or restraining any person
with an object of forcing or requiring any person to cease handling the
products of any producer or to cease doing business with any person.
Moreover, this section unlike Section 8 (e), contains no exemption for
the construction industry.12
As shown above, Local Union No. 455 made repeated threats, both
to Hickey Company and to 3-M, to take economic action by refusing
to install the boilers in packaged form. As noted above, Hickey Com-
pany had contracted only to install the boilers; consequently, it was a
secondary employer in this dispute because it was, as the Union admits,
powerless to effect the results sought by the Union-assignment of the
trim-piping work to the Union's members. The Union's objectives,
therefore, in uttering these threats to Hickey Company, must have
been, and we find that they were, to force that Company to cease doing
business with 3-M and to cease handling boilers produced by Orr &
Sembower, and, consequently, to force 3-M to cease doing business with
Orr & Sembower. We find that Local Union No. 455, by threatening
Hickey Company with a strike with such objectives, violated Section
8(b) (4) (ii) (B) of the Act.
Although 3-M had control over the work sought by the Union's
members in that it was 3-M which ordered the boilers, 3-M was not
the employer of the employee-members of the Union involved in the
dispute, nor was it a party to the 1963 collective-bargaining agreement.
It is clear, therefore, that Mooney's statements to 3-M that the mem-
bers of Local Union No. 455 would not install the packaged boilers
were not threats to strike 3-M, but threats to strike Hickey Company,
with the object of forcing 3-M to cease handling the packaged boilers
produced by Orr & Sembower. We find that Local Union No. 455, by
thus threatening 3-M with a secondary strike against Hickey Company,
with such an object, further violated Section 8(b) (4) (ii) ( B).13
11 See Northeastern Indiana Building and Construction Trades Council ( Centlivre Vil-
lage Apartments ), 148 NLRB 854.
"As our dissenting colleague recognizes , his views on this issue herein have previously
been rejected by the Board which, with Court approval , has long recognized that the
right of control is a significant factor hearing on the question whether union conduct is
primary or secondary . See Metropolitan District Council, etc. (Charles B . Mahan, an
individual and National Woodwork Manufacturers Association ), 149 NLRB 646 (Mem-
ber Brown dissenting in part) ; Ohio Valley Carpenters District Council, etc. ( Cardinal
Industries , Inc.), supra, 93 (Member Brown dissenting ), enfd. 339 F . 2d 142 (C.A 6) ;
International Longshoremen 's Association, AFL-CIO, et al. (Board of Harbor Commis-
sioners ), 137 NLRB 1178 ( Member Fanning concurring , Member Brown dissenting) ;
Local 5, United Association of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry, etc. (Arthur Venneri Company), supra. Cf. United Association Pipe
Fitters Local Union No. 539, et al. (American Boiler Manufacturers Association), supra
(Tonka Toys incident) ; and Metropolitan District Council, etc. ( National Woodwork
Manufacturers Association ), 149 NLRB 646, footnote 21, in which the Board found no
violations of Section 8(b) (4). In the latter two cases, unlike the situation here, the
respondent unions ' strike threats were aimed directly at employers who not only had
control over assignment of the disputed work, but also were the employers of the
employee-members of the unions who sought the work.
UNITED ASSN. PIPE FITTERS LOCAL 455, ETC. 291
5. The Pierre Aircon incident: Pierre Aircon Company, a member
of the Contractors Association and a signatory to the 1963 agreement,
received a contract on July 3, 1963, to install a boiler at the Deluxe
Check Building project. The contract specified a packaged boiler
manufactured by Orr & Sembower, but the record does not show who
ordered the boiler. After the boiler was delivered, Mooney requested
Howard Pierre, president of Pierre Aircon Company, to attend as a
guest, a meeting of the fabrication committee, which he did on Octo-
ber 22, 1963. The committee, whose members in attendance included
Mooney of Local Union No. 455 and Moriarty of the Contractors Asso-
ciation, informed Pierre that his acceptance of the packaged boiler
would violate the 1963 agreement. The record does not reveal Pierre's
response. The committee minutes show that, after Pierre left the meet-
ing, the committee unanimously adopted a motion that Pierre Aircon
Company pay $100 for violating the fabrication clause of the collective-
bargaining agreement by "entering into a contract ... with the Deluxe
Check Company for the installation of a ... boiler [which] arrived
with the trim on." Thereafter, Pierre Aircon Company paid the $100
and installed the packaged boiler.
(a) The alleged violation of Section 8 (e) : It is evident that the Fab-
rication Committee's action of October 22 constituted the entering into
of a new ad hoc agreement which provided, in effect, that the installa-
tion of the packaged boiler at this site would be permitted upon the
payment of $100 by Pierre Aircon Company. Local Union No. 455 and
the Contractors Association, whose representatives entered into the
agreement, and Pierre Aircon Company, as an association member,
were parties to this agreement.
Unlike the Trial Examiner, however, we find nothing in this agree-
ment of October 22 violative of Section 8(e). Like the August 27
agreement at the 3-M project, discussed above, this agreement, to the
extent that it involved work preservation, would fall outside the scope
of section 8 (e) ; to the extent that it falls within the scope of that sec-
tion, it would be protected by the construction industry proviso. The
fact that the agreement involved payment of $100 by Aircon does not
in our opinion deprive the October 22 agreement of the proviso's
protection.
(b) The alleged violation of Section 8(b) (4) (ii) (A) : As we have
found that the October 22 agreement was lawful, and as there is no evi-
dence that the Union sought any agreement other than the one reached,
we find that the Union's conduct in securing it was not violative of
Section 8(b) (4) (ii) (A).
(c) The alleged violation of Section 8(b) (4) (ii) (B) : The facts
show that, unlike the 3-M incident discussed above, Local Union No.
455 did not threaten to strike this project. There is, in our view, a sig-
nificant distinction between the use of strikes or threats thereof as an
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
economic weapon in the settlement of disputes between labor and man-
agement, and the resort to peaceful means of resolving such disputes
such as their submission to the Board or to the courts for determina-
tion.14 The agreement upon reasonable compensation for what the
Union contended was a breach of its contract was similarly a peaceful
method of resolving its dispute without a strike or threat thereof.
Accordingly, we find that Local Union No. 455, by its conduct herein,
did not threaten, coerce, or restrain the Employers herein within the
meaning of subsection (ii) of Section 8(b) (4), and therefore did not
violate Section 8(b) (4) (ii) (B).
6. The Upper Midwest Piping incident: Upper Midwest Piping,
Incorporated, was a member of the Mechanical Contractors Associa-
tion of Minneapolis, Inc., which had a collective-bargaining agree-
ment with Local Union No. 539, a sister local of Local Union No. 455,
which agreement contained a fabrication clause similar to the one con-
tained in the Local Union No. 455 agreement. Although both the Min-
neapolis and St. Paul agreements contained reciprocal clauses covering
employer members working in either area,15 when Upper Midwest
Piping obtained a contract, about August 5, 1963, to install two pack-
aged boilers in the Rosemont School in St. Paul, it became a signatory
to the Local Union No. 455 agreement. On September 9, Upper Mid-
west Piping ordered two boilers of the type specified in its contract
from Cleaver-Brooks Company, through Heinent Company, the Tat-
ter's agent in St. Paul. Early in October, business representative
Mooney told Sorensen, vice president of Upper Midwest Piping, over
the telephone, that, under the fabrication clause, "the trim piping and
the gas train, etc. shouldn't be on these boilers when they came in," and
that it was "our work." Mooney, in his testimony at the hearing
regarding this conversation, stated : "Mr. Sorensen isn't the kind of
man that you have to come up with a threat .... Merely a matter of
explaining to him what the labor agreement was all about." Shortly
after this telephone conversation with Mooney, Sorensen orally
instructed Heinent not to deliver the boilers at the jobsite with the trim
piping attached, and followed up with a letter containing the same
instructions "as per St. Paul's local requirements." Although Heinent
passed Sorensen's instructions along to Cleaver-Brooks Company, the
boilers were delivered in packaged form and were being installed at the
time of the hearing by Upper Midwest Piping employees who were
members of Local Union No. 539 of Minneapolis.
14 See Northeastern Indiana Building and Construction Trades Council ( Centlivre Vil-
lage Apartments ), supra ; Orange Belt District Council of Painters No. 48, et al. v.
N.L R.B. ( Calhoun Drywall Company ), 328 F. 2d 534 (C A.D.C ).
is These clauses provide that an employer -member of one association performing work
in the jurisdiction of another local union is bound by all the provisions of the agreement
effective in that jurisdiction "to the same extent as if signatory thereto."
UNITED ASSN. PIPE FITTERS LOCAL 4 5 5, ETC. 293
(a) Th e alleged 8(e) violation: We find it unnecessary to, and there-
fore do not, determine whether Local Union No. 455 and Upper Mid-
west Piping, by their conduct in the course of this incident, entered
into an implied agreement interpreting the fabrication clause. Such
agreement would, in any event, not be violative of Section 8 (e) as it
would, for the reasons set forth above in regard to the agreement
between Hickey Company and the Union at the 3-M project, be pro-
tected by the construction industry proviso.16
(b) The alleged 8(b) (4) (ii) (A) violation: As the purported agree-
ment, if any, would not have been unlawful, we find that the Union's
conduct in pursuit of such an agreement would not have been violative
of Section 8(b) (4) (ii) (A).
(c) The alleged 8(b) (4) (ii) (B) violation: The facts show that
Mooney informed the president of Upper Midwest Piping that the trim
piping "shouldn't" be on the boilers when they were delivered. This
statement clearly did not constitute a threat. Moreover, we do not
agree with the Trial Examiner that "Local 455's pattern of conduct"
provides a basis for finding an implied threat in Mooney's statements
or conduct in the course of this incident. Therefore, in the absence of
any evidence that the Union threatened, coerced, or restrained Upper
Midwest Piping or any other person within the meaning of subsection
(ii) of Section 8(b) (4), and as the boilers were installed in packaged
form as ordered, we find that Local Union No. 455 did not violate Sec-
tion 8(b) (4) (ii) (B) at this project.''
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, United Association Pipe Fitters Local No. 455, affiliated
with the United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada,
AFL-CIO, its officers, agents, and representatives, shall :
1. Cease and desist from :
(a) Threatening, coercing, or restraining D. W. Hickey Co., Inc.,
or any other person engaged in commerce, where an object thereof is
to force or require said Company or any other person to cease using,
selling, handling, or dealing in the products of, or to cease doing busi-
ness with, Orr & Sembower, Inc., Minnesota Mining & Manufacturing
Company, or any other person.
1e We note that Upper Midwest Piping was not a member of the Respondent Contractors
Association, that the Fabrication Committee took no action regarding this project, that
Mechanical Contractors Association of Minneapolis, Inc., is not a respondent in this
proceeding, and that no violations of the Act by either Association are alleged in con-
nection with this incident.
17Local 38, International Brotherhood of Electrical Workers, AFL-CIO (Edwin A.
Wells, d/b/a E. Wells Electrical Construction Company), 148 NLRB 757; General Team-
sters Local No 162, etc. (B. P. John Furniture Corporation), 144 NLRB 536, 545.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Threatening, coercing, or restraining Minnesota Mining & Man-
ufacturing Company or any other person engaged in commerce, where
an object thereof is to force or require said Company or any other per-
son to cease using, selling, handling, or dealing in the products of, or
to cease doing business with, Orr & Sembower, Inc., or any other person.
2. Take the following affirmative action which the Board finds nec-
essary to effectuate the policies of the Act :
(a) Post, in conspicuous places, in its offices, meeting halls, and
places where notices to its members are customarily posted, copies of
the attached notice marked "Appendix." 1s Copies of said notice, to be
furnished by the Regional Director for Region 18, shall, after being
duly signed by an authorized representative of Respondent Local
Union No. 455, be posted immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter. Rea-
sonable steps shall be taken by the said Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Furnish to the Regional Director for Region 18 signed copies
of the aforementioned notice for posting by each of the employers who
are willing, in places where notices to employees are customarily
posted. Copies of said notice, to be furnished by the Regional Direc-
tor, shall, after being signed by the said Respondent, as indicated, be
forthwith returned to the Regional Director for disposition by him.
(c) Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the said Respondent has taken to
comply herewith.
IT IS FURTHER ORDERED that the complaint in Case No. 18-CE-4 and
Case No. 18-CE-6 be dismissed in its entirety, and the complaint in
Case No. 18-CC-143 be dismissed insofar as it alleges unfair labor
practices other than as found by the Board.
MEMBER BROWN, dissenting in part:
I disagree with my colleagues' conclusion that Respondent Local 455
violated 8(b) (4) (ii) (B) by threatening to strike D. W. Hickey Co.,
Inc., if it breached the applicable collective-bargaining agreement by
installing packaged boilers on the 3-M project. Instead, I find this
conduct legitimate economic pressure designed to protect unit work as
contemplated by Local 455's collective-bargaining agreement with the
Mechanical Contractors Association, to which Hickey was a party.
The provision invoked against Hickey, referred to herein as the
"fabrication clause," provided, in substance, that the external piping
on boilers is to be fabricated by unit employees of signatory employers.
It was incorporated in the 1963 agreement for the purpose of reducing
the inroad on unit work occasioned by increased use of so-called pack-
Is 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".
UNITED ASSN. PIPE FITTERS LOCAL 455, ETC. 295
aged boilers, which involve factory assembly of external piping by
nonunit employees.19 During the period here in controversy, and with
reference to the 3-M project, the Fabrication Committee, composed of
representatives of the Respondent Employers and Labor Organizations
and contractually empowered to resolve disputes arising under the
"fabrication clause," construed this provision as precluding a signatory
employer from installing packaged boilers on any project covered by
the agreement.
Consistent with the view of my colleagues, the "fabrication clause,"
as interpreted by the Committee, represented a genuine attempt to pro-
tect "fairly claimable jobs" of unit employees 20 Thus, in regulating
the economic relationship between signatory employers and their em-
ployees, the clause has been applied in a manner which (1) merely
defines work that must be performed by unit employees, (2) does not
impose a legally cognizable obligation upon any nonsignatory em-
ployer, (3) does not reflect an intent to regulate labor policies of third
persons doing business with signatories, (4) does not regulate the terms
and conditions of employment of employees outside the bargaining
unit, and (5) may not be utilized by the contracting Unions to support
their disputes with nonsignatories. It is apparent that-as intended,
interpreted, and administered-the "fabrication" clause represents a
genuine effort to preserve the work of employees in the contract unit
represented by Respondent Unions. The clause is thus primary in
scope, and any business cessations resulting from its direct implementa-
tion against signatory employers would merely amount to all "inci-
dental secondary effect" outside the interdict of Section 8 (e).21
Without disputing the foregoing, the majority concludes that Local
455's strike action against Hickey, though merely designed to enforce
the Fabrication Committee's interpretation of the clause, was violative
of Section 8(b) (4) (B). The majority then goes on to state that, as
applied to Hickey, the Committee's interpretation was secondary and
would violate Section 8(e) if not exempted by the construction indus-
'9 The record shows that before 1958 most boilers installed in the St. Paul area had
their external piping attached at the jobsite by employees represented by Respondent
Unions and employed by pipefitting contractors many of whom belonged to the Mechani-
cal Contractors Association. In the period between 1958 and 1963, the use of packaged
boilers, with external piping applied at the manufacturer 's plant, increased from 10 per-
cent to 60 to 75 percent of all boilers installed.
2OHeat and Highway Drivers, Dockmen, Helpers and Miscellaneous Truck Terminal
Employees, Local Union No. 710, etc. ( Wilson & Co ., et al.) v. N.L.R.B., 335 F. 2d
709, 713-714 (CA.D.C.).
nMetropolitan District Council of Philadelphia, etc. (Charles B. Mahin , an Individual,
and National Woodwork Manufacturers Association), 149 NLRB 616 ; Service and Main-
tenance Employees' Union, Local No. 399 (gal Efron, d/b/a Superior Souvenir Book
Company ), 148 NLRB 1033. Compare Local 282 , International Brotherhood of Team-
sters, etc . ( United States Trucking Corporation ), 146 NLRB 956 , 962; enfd. 344 P. 2d
649 (C.A. 2 ), decided April 22, 1965, where in finding a violation of Section 8(b) (4) (1)
and (ii ) ( B) the Board and the Court specifically distinguished a situation where a union
is "enforcing the contractual rights" or "preserving work" in the bargaining unit repre-
sented by the union.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
try proviso thereto. In both respects, the majority finds a proscribed
secondary objective solely because Hickey had no authority to assign
the fabrication work to his employees. The violation, therefore, rests
upon the majority's willingness to regard the element of "control" as
the conclusive determinant of objective, an approach I have repeatedly
rejected 22
In my opinion, the Hickey incident pointedly illustrates the unreal-
istic consequences attendant in determining validity of objective under
a standard which is both alien to the statutory scheme and broad enough
to condemn conduct falling outside the ambit of 8(b) (4) (B) and
8(e). For, there can be no question that the "power of control" test
when applied to the instant circumstances conditions the primary or
secondary nature of Local 455's conduct upon the form of a signatory
employer's breach of contract. Thus while my colleagues concede that
no statutory violation would exist had Hickey possessed the authority
and itself ordered the packaged boilers, they find a violation of
8(b) (4) (B) solely because Hickey's contract breach took the form of
accepting a business undertaking which frustrated the contractually
guaranteed job rights of his employees. I see no relevant distinction.
In either case, the deprivation of unit work, being equally offensive
to unit employees under their contract, would be likely to precipitate,
as it in fact did, a contract-oriented labor dispute against Hickey.
Unless 8(b) (4) (B) is to be viewed as regulating contractual disputes
between an employer and his employees in regard to the terms and
conditions of those employees, I see no justification for the majority's
preoccupation with formal aspects of an employer's breach of a lawful
work preservation provision in determining whether a labor orga-
nization may lawfully apply direct economic pressure against that
employer on behalf of offended employees. For the above reasons,
and under all circumstances, it is my opinion that Local 455's conduct,
designed as it was to enforce compliance with contractually guar-
anteed job rights of unit employees, constituted traditional primary
action not proscribed by Section 8(b) (4) (B). Accordingly, and as I
agree with the majority's dismissal of all other allegations, I would
dismiss the consolidated complaints in their entirety.
MEMBER ZAGORIA took no part in the consideration of the above Deci-
sion and Order.
22 See, e.g, my dissenting opinions in Ohio Valley Carpenters District Council, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO ( Cardinal Industries, Inc ),
144 NLRB 91 , 94; and National Woodwork Manufacturers Association , supra.
as See the companion case of United Association Pipe Fitters Local Union No. 539, et at.
(American Boiler Manufacturers Association ), 154 NLRB 314, issued simultaneously
herewith , where the majority dismisses the 8 ( b) (4) (B) allegation with respect to the
"Tonka Toys incident" because the signatory employer breached the fabrication clause
by ordering a packaged boiler.
UNITED ASSN. PIPE FITTERS LOCAL 455, ETC. 297
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF D. W. HICKEY
CO., INC., AND MINNESOTA MINING & MANUFACTURING COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT threaten, coerce, or restrain D. W. Hickey Co.,
Inc., or any other person engaged in commerce, where an object
thereof is to force or require said Company or any other person
to cease using, selling, handling, or dealing in the products of,
or to cease doing business with, Minnesota Mining & Manufactur-
ing Company, Orr & Sembower, Inc., or any other person.
WE WILL NOT threaten, coerce, or restrain Minnesota Mining &
Manufacturing Company, or any other person engaged in com-
merce, where an object thereof is to force or require said Com-
pany or any other person to cease using, selling, handling, or
dealing in the products of, or to cease doing business with, Orr &
Sembower , Inc., or any other person.
UNITED ASSOCIATION PIPE FITTERS LOCAL UNION No.
455, AFFILIATED WITH THE UNITED ASSOCIATION
OF JOURNEYMEN AND APPRENTICES OF THE PLUMB-
ING AND PIPE FITTING INDUSTRY OF THE UNITED
STATES AND CANADA, 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, or any one affected by this notice, may communicate
directly with the Board's Regional Office, 316 Federal Building, 110
South Fourth Street, Minneapolis, Minnesota, Telephone No. 339-0112,
Extension 2601, if they have any question concerning this notice or
compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Pursuant to charges , which were duly filed , served , and consolidated , the General
Counsel of the National Labor Relations Board, through the Regional Director for
Region 18, issued a consolidated complaint in Cases Nos . 18-CE-4 and 18-CE-6,
dated January 15, 1964, alleging the Respondents have engaged in and are engaging
in unfair labor practices within the meaning of Section 8(e) of the National Labor
Relations Act, as amended (29 U.S.C. 151, et seq.), herein called the Act. On the
same date a complaint was duly issued in Case No. 18-CC-143, alleging that the
Respondents have engaged in and are engaging in unfair labor practices within the
meaning of Section 8(b) (4) (ii) (A) and (B) of the Act. On January 15, 1964, the
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director issued an order consolidating all three cases. The answers of the
Respondents admit certain allegations of the complaints, but deny the commission
of any unfair labor practices.
Pursuant to notice, a hearing was held before Trial Examiner Reeves Hilton at
Minneapolis, Minnesota, on February 3 through 6, 1964. All parties were present
and represented by counsel and were afforded full opportunity to be heard, to intro-
duce relevant evidence, to present oral argument, and to file briefs. About May 4, all
counsel submitted briefs, or joined therein, except counsel for Respondent Upper
Midwest Piping, Incorporated.
The Charging Party, American Boiler Manufacturers Association, is herein referred
to as the American Association.
Respondent United Association Pipe Fitters Local Union No. 455, and Respondent
United Association Plumbers & Gasfitters Local Union No. 34, both affiliated with
above-described International Union, are referred to as Local 455 and Local 34,
respectively, or as the Respondent Unions.
Respondent St. Paul Association of Plumbing, Heating and Mechanical Contractors,
Inc., is referred to as the Contractors Association.
On the basis of the entire record, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE ASSOCIATIONS AND THEIR MEMBER COMPANIES
The American Association, a New Jersey corporation with its principal office in
Newark, New Jersey, is a trade organization representing approximately 36 manu-
facturers and distributors of steam boilers and firing equipment, located in some 22
States, including Orr & Sembower, Inc., and Cleaver-Brooks Company of Milwaukee,
Wisconsin.
Orr & Sembower, Inc , according to its president, Frederick Klein, is a Pennsyl-
vania corporation and maintains its principal plant and place of business of Reading,
Pennsylvania, where it is engaged primarily in the manufacture, fabrication, and sale
of packaged boilers. During the 12-month period preceding October 25, 1963, the
date of the filing of the initial charge,' the Company sold and delivered finished
products valued in excess of $1 million to customers outside the Commonwealth of
Pennsylvania, and also purchased raw materials, in the same amount, from suppliers
outside the Commonwealth of Pennsylvania
Cleaver-Brooks Company, as related by its vice president and general manager,
Harold F. Holtz, is a Wisconsin corporation and has its principal office in Milwaukee,
Wisconsin. The Company's principal business is the manufacture and sale of
packaged boilers which are manufactured at plants located in Lebanon, Pennsylvania,
Ontario, Canada, and Mexico City, Mexico. The Company sold and delivered
finished products, valued in excess of $5 million, from its Lebanon plant to customers
located outside the Commonwealth of Pennsylvania, and purchased raw materials
for that plant, in the same amount, from suppliers outside the Commonwealth of
Pennsylvania.
Respondent Upper Midwest Piping, Incorporated, is a Minnesota corporation and
has its principal office in Minneapolis, Minnesota. where it is engaged in the business
of mechanical contracting , including the installation of plumbing , heating, and other
mechanical equipment. The answer admits that during the year 1963, the Company
purchased materials and equipment, valued in excess of $100,000, which were shipped
to it by suppliers located in places outside the State of Minnesota. Upper Midwest,
according to Carl Sorensen, vice president, although not a member of Contractors
Association (it is a member of Mechanical Contractors Association of Minneapolis,
Inc.), has agreements with Local 455 and Local 34.
Respondent Contractors Association is a Minnesota corporation, having its prin-
cipal office in St. Paul, Minnesota, and is composed of some 44 contractors, herein
named as Respondent Member-Contractors, who are located in the St. Paul area and
are engaged in the installation of plumbing, heating, and related mechanical equip-
ment. Contractors Association was formed and has existed, at all times material
herein, for the purpose, inter alia, of negotiating and bargaining with the Respondent
Unions as the collective-bargaining representative of the employees of Respondent
Member-Contractors. The complaint alleges that Contractors Association and each
of its members purchased materials and equipment in their respective business opera-
tions from sources outside the State of Minnesota in amounts valued in excess of
$100,000. The answer denies the Contractors Association made any such purchases,
but admits that some, but not all of its members, made such purchases.
1 Unless otherwise stated, the same period is used concerning the business operations
of other companies involved herein
UNITED ASSN. PIPE FITTERS LOCAL 455, ETC . 299
The answers of D. W. Hickey Co., Inc., and Pierre Aircon Company admit they
are Minnesota corporations, that they maintain their places of business in St. Paul,
Minnesota, that they are mechanical contractors, and they are members of Contrac-
tors Association. At the hearing counsel stipulated that each of these companies pur-
chased materials and equipment, valued in excess of $100,000, from suppliers in
places outside the State of Minnesota.
Minnesota Mining & Manufacturing Company, according to its industrial relations
director, Ralph Rothstein, is a Delaware corporation and maintains its principal office
at St. Paul, Minnesota, and is engaged at St. Paul and other States in the manufacture,
sale, and distribution of tapes, building materials and supplies, and related products.
During the year 1963, the Company manufactured, sold, and delivered from its St.
Paul plant products valued in excess of $1 million to customers outside the State of
Minnesota and it purchased goods and materials, in the same amount, from sources
outside the State.
I find Orr & Sembower, Cleaver-Brooks, Upper Midwest Piping, D. W. Hickey,
Pierre Aircon, and Minnesota Mining & Manufacturing are employers engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act, and are
persons within the meaning of Section 8(b) (4) (ii) thereof.
The Respondent Contractors Association denies that it is an employer engaged
in commerce or in operations affecting commerce within the meaning of Section
2(6) and (7) of the Act. As it is undisputed that Respondent Contractors Associa-
tion has acted as the agent of Respondents D. W. Hickey and Pierre Aircon and has
represented them, and all its Member-Contractors, in negotiating agreements with
Respondent Unions, I find that Respondent Contractors Association is engaged in
operations affecting commerce within the meaning of Section 2(6) and (7) of the
Act 2
The complaint in Case No. 18-CC-143 alleges that Bettenberg, Townsend, Stolte
& Comb Company is a partnership, with offices in St. Paul, Minnesota, and performs
services as consulting engineers and architects in the building and construction indus-
try. During the year 1963, as appears in the complaint, the firm performed services
valued in excess of $50,000 to enterprises located within the State, each of which
annually produces and ships goods valued in excess of $50,000 directly out of the
State wherein they are located. The answer of Respondent Local 455 admits the
type of services performed by the firm, but, on the basis of insufficient information,
denies the allegation concerning the operations of the companies for which it renders,
or has rendered, services, or the value of such services. C Vaughn Anderson, chief
mechanical engineer for the firm, testified regarding the firm's operations and that it
acted as consulting engineers and architects for the St. Paul School Board in the
remodeling of the Cleveland Junior High School However, the record does not
reveal the cost of this project or the names of the enterprises engaged in commerce
for which the firm performed services I, therefore, find the evidence insufficient to
sustain the jurisdictional allegations of the complaint in this respect.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent Unions are labor organizations as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The pleadings
The complaint in Cases Nos. 18-CE-4 and 18-CE-6 alleges, in substance, that
about July 15, the Respondents executed collective-bargaining agreements contain-
ing a fabrication clause covering the installation of boilers on the jobsite, which the
Respondents have interpreted, construed, and applied in such a manner as to con-
stitute a violation of Section 8(e) of the Act.
The Respondents contend the fabrication clause is not proscribed by Section 8(e)
and, in addition, the Respondent Union advances legal and constitutional grounds
to support the validity of the clause.
The complaint in Case No. 18-CC-143 alleges, in brief, that Local 455, through
its agents, threatened, coerced, and restrained certain mechanical contractors, an
object thereof being to force or require said contractors to cease using, handling,
transporting, or otherwise dealing in the products of, or to cease doing business with,
certain manufacturers of packaged boilers and their representatives, and to force or
2 Operating Engineers Local 'Union No 3, AFL-CIO ( California Association of Em-
ployers ), 123 NLRB 922, 926; Broward County Carpenters' District Council, etc.
(Broward Builders ' Exchange , Inc ), 122 NLRB 1008, 1012.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
require said contractors and Minnesota Mining & Manufacturing Company to enter
into agreements prohibited by Section 8(e), in violation of Section 8 (b) (4) (ii) (A)
and (B ) of the Act.
In essence , Local 455 asserts that the statutory provisions do not apply herein,
its agreements fall within the construction proviso to Section 8 (e), and its acts and
conduct in seeking to obtain compliance with, and to enforce, existing valid agree-
ments were not violative of the Act. The Respondent also raises legal and consti-
tutional issues concerning the General Counsel's construction and application of
Section 8(e) upon the agreements in question.
B. Background
Max Funk, manager of American Association, testified 36 members of the Asso-
ciation 3 are engaged in the manufacture of boilers or major components thereof in
some 60 plants located in 22 States. The boilers are sold throughout the United
States and the world, and the value of the boilers produced annually is in excess of
$400 million.
Funk has been manager of American Association for about 3 years and for more
than 20 years prior thereto he was with Combustion Engineering, Incorporated, a
manufacturing concern, as an engineer and later became chief engineer responsible
for the research, design, and development of boilers. On the basis of his experi-
ence, as well as reports submitted to the Association by its members, Funk gave an
outline of the development and growth of the packaged boiler in the industry, which
may be summarized as follows.
There are two basic types of boilers, (1) a water tube boiler, in which the water
is inside the tubes and the heat source is outside the tubes, and (2) a fire tube boiler,
in which the water is outside the tubes and the heat is inside the tubes. Manufactur-
ing members of the Association produce both types of boilers and both are manu-
factured as packaged boilers, which Funk described as:
A packaged boiler is a complete steam generating unit. It comprises a heat
exchanger, a source of heat, a source of combustion air, operating controls,
safety controls. These five factors, basically, make up a packaged boiler.
The packaged boiler is manufactured by assembly line methods. Thus, parts of
the heat exchanger are fabricated and assembled, subassemblies such as burners,
fuel piping, trim piping, and controls are then attached to the heat exchanger. The
boiler is then moved to the test pit where it is actually fired and operated and run
through performance tests. The packaged boiler carries a manufacturer's warranty
against defective parts and removal of any of these parts voids the warranty on the
unit operation of boiler although it remains effective as to the parts. The boiler also
bears the seal of the Underwriters Laboratory which means that it conforms to
specified standards. Upon completion of the tests the boiler is shipped to the pur-
chaser and is ready for installation at the jobsite without further fabrication
Prior to the development of packaged units the boilers and component parts were
shipped separately and assembled at the jobsite. These boilers were and are known
as field-assembled boilers.
Packaged fire tube and water tube boilers were first produced in 1932 and 1947,
respectively, and can be manufactured and handled in various sizes up to about
7,000 horsepower. Boilers in excess of this horsepower, such as used by public
utilities, being huge equipment, cannot physically be packaged and shipped and must
be assembled in the field or at the jobsite. Since 1947 the use of packaged boilers has
steadily increased and during the year 1963 Association members manufactured and
sold about 5,000 packaged fire tube boilers. Funk estimated that about 50 percent
of all fire tube boilers produced in 1963, by Association and nonassociation manu-
facturers, were packaged boilers. In the same period Association members manu-
factured some 600 packaged water tube boilers, up to 3,000 horsepower, which con-
stituted about 61 percent of all water tube boilers produced by them. The boilers
manufactured by members of the Association in 1963 were valued in excess of $70
million.
Otto Swoboda, president of Hickey Company, said packaged boilers started sell-
ing "quite fast" around 1955 or 1956, and for the past 7 or 8 years most of the
boilers installed by Hickey Company have been packaged boilers.
8 The Association has 38 associate members who are suppliers to the industry, or in-
suring agents or quasi-public groups who are interested in industry.
UNITED ASSN. PIPE FITTERS LOCAL 455, ETC. 301
Howard Pierre, president of Pierre Aircon, testified the company has been install-
ing packaged boilers for the past 7 or 8 years and they constituted about 50 percent
of all its boiler installations.
Lawrence Heinen, president of Heinen Company, stated the company has been
acting as representative for Cleaver-Brooks since 1955 and that the sales of packaged
boilers has steadily increased so that currently about 80 to 85 percent of all boilers
sold in the area are packaged boilers. During 1962 the company sold between 25 to
30 packaged boilers.
Albert Kimble, president of Kimble Company, mechanical contractor, testified
that in 1957 or 1958 about 10 percent of all boilers installed were packaged boilers
and by May 1963 they composed about 70 percent of all installations.
Theodore Schmitz, employed by the city of St. Paul as a heating and piping
inspector since 1949, estimated that packaged boiler installations had increased over
the past 5 or 7 years from 10 percent to about 60 or 70 percent.
Warren B. Mooney, assistant business representative for Local 455 for about 13
years, testified that packaged boilers, which he referred to as "prepiped boilers,"
first came into the area about 1951, and the number gradually increased until around
1958 or 1959 they comprised 10 to 15 percent of all boilers being installed, and in
1963 they constituted about 75 percent of all boiler installations.
Of the 60 plants operated by American Association members about 55 are orga-
nized by labor organizations, other than locals of the United Association, including
the Boiler Makers, Steel Workers, Machinists, and "two of the electrical workers"
unions. The parties stipulated the average hourly rate of plant employees to be $2.59.
Under the Local 455 agreement the basic hourly rate for journeymen is $3.90
as of May 1, 1963, $3.95 effective November 1, and $4.10 effective May 1, 1964.
C. The agreements between Contractors Association
and Local 455 and Local 34
Mooney and Harold Moriarty, executive secretary of Contractors Association for
some 8 years, testified in rather general fashion concerning the present agreements
between the parties. It appears that the parties have had agreements for a number
of years covering rules and working conditions of union members engaged in the
installation of all plumbing and/or pipefitting systems, and all phases related to
this type of work, in the St. Paul area. It is clear from Moriarty's testimony that
the parties have had written agreements at least since 1956, and the two preceding
agreements, each covering 2-year terms, terminated about May 1, 1961, and 1963,
respectively.
In the latter part of March, or early April 1963, representatives opened negotia-
tions for a new agreement. During the negotiations, which were conducted jointly,
Contractors Association was represented by a basic five-man committee, including
Moriarty, while Mooney and Gerald O'Donnell, business representative, appeared
on behalf of Local 455, and James MacKenzie, business representative, represented
Local 34.
For some time prior to the 1963 negotiations, Mooney stated that Local 455 offi-
cials were very much concerned with the rapid increase in the sales of packaged
boilers since its members were qualified "to do all" the trine piping and items attached
to the packaged boiler and have traditionally performed this type of work at the
jobsite.4 Mooney also pointed out that two men could install or assemble these
items on a 300 horsepower boiler, at the jobsite, in a matter of 2 days. In view of
this situation and in order "to preserve work locally for members of Union 455,"
Mooney requested an appropriate fabrication and assembly clause in the contract
negotiations of 1959 and 1961, but Contractors Association refused to accede to
his request.
During the 1963 negotiations Local 455 renewed its demand for a satisfactory
fabrication and assembly clause and, after lengthy discussion, the parties reached
agreement on all contract terms including this provision. Moriarty said the contract
"was unofficially agreed to and approved on April 29, 1963," and, at a special meeting
held on June 20, the members of Contractors Association authorized the board of
directors "to ratify the contract." Mooney stated he informed the membership of
Local 455, at a meeting held on May 1, that the agreement had been negotiated and
was in effect, but there were still some minor language changes to be made and the
agreement had to be put in printed form. Moriarty stated the agreement was signed
'Local 455 has been in existence for some 60 years and has about 500 members, ap-
proximately 300 of whom are qualified and licensed steamfitters.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about July 15, while Mooney fixed the date as around July 1. The agreement is
effective from May 1 , 1963, to April 30, 1966, with an automatic renewal provision
and a clause providing for termination or change upon a 60-day notice in writing by
either party.5
The fabrication clause, article II, section 1(c), of the agreement is as follows:
As a primary working condition , it is agreed that all pipe formations , systems,
or controls , or component parts thereof , including within the nonpurchase list
attached hereto and made a part hereof as Exhibit I, as amended from time
to time as provided in this agreement , shall be fabricated on the job site or in
the shop of an Employer within the bargaining unit who is bound by this
agreement , except as otherwise mutually agreed upon with relation to any
particular job.
Exhibit I , Non-Purchase List, provides:
1. Piping that is not attached at the factory, is not lined or pickeled, or is
not available as a standard fitting, or can be bent or formed with portable
equipment.
2. On boilers , all piping beyond the gas and oil burners proper and trim
piping on those boilers 30 horsepower or more.
The fabrication clause also provides for the establishment of an Industry Fabrica-
tion Committee , herein called the Fabrication Committee , composed of six members,
to be appointed or elected by the Contractors Association and Local 455, in equal
numbers, respectively . The Fabrication Committee is empowered , inter alia, to make
necessary rules for the conduct of its business and for the enforcement of its deci-
sions, to amend exhibit I, to review the nonpurchase list periodically for possible
alterations for "the purpose of preserving locally as much work as possible ," at the
same time meeting industry standards , to interpret and rule upon matters pertaining
to the clause , which are subject to arbitration in case of disagreement , and pending
final disposition of disputed items, in accordance with the above procedure, the
parties agree there will be no strike , work stoppage , or lockout.
The agreement further provides the fabrication clause shall not be effective as to
customer contracts signed or bid by an employer signatory prior to the date of the
execution of the agreement.
At times material herein, the following named individuals were members of the
Fabrication Committee:
Ronald L. Harris, Industry member Gerald O'Donnell, Local 455
Wallace R. Strandberg , Industry member Warren B. Mooney, Local 455
Albert Kimball , Industry member James McKenzie , Local 34
Harold Moriarty, as executive vice president of Contractors Association, was,
ex officio, a member of the committee.
Moriarty testified that letters dated May 6 were sent to various manufacturers of
packaged boilers, which he signed but, seemingly , did not prepare , advising the
manufacturers that the Contractors Association and Local 455 were in the process
of signing a new agreement and that the Union was requesting a clause regarding
"prefabricated piping and equipment ." This meant that Local 455 was asking "that
all boilers installed in this area should be delivered to the job in a stripped down
condition ," without specified parts and items attached , all of which "would have to
be installed and piped on the job." The letters further stated the parties had spent
much time discussing this clause , including the merits of factory testing, guarantee,
economy, and underwriters label, and some of the contractors could see no dis-
advantage in such a clause . In fact they expressed the opinion the clause would
be advantageous since they would be paid for performing this work . The letters
concluded with a request for comments or suggestions in the matter, but there is
nothing in the record indicating any of the manufacturers made any response to
the letter.
Mooney testified that all independent contractors , or nonassociation members, en-
gaged in the business of installing boilers of 30 horsepower or more, have signed
individual and identical agreements with Local 455.
Hereafter in this Decision , the fabrication clause and exhibit I , the nonpurchase
list, are referred to as the fabrication clause.
5 The agreement between Contractors Association and Local 34 is identical to the-
Local 455 contract.
UNITED ASSN. PIPE FITTERS LOCAL 455, ETC. 303
D. The application and enforcement of the agreement by Local 455
1. The Minnesota Mining & Manufacturing Company project
Around April or May 1963, the Minnesota Mining & Manufacturing Company,
herein called the 3-M Company or 3-M, was engaged in the remodeling of a build-
ing in St. Paul, which it had leased, known as the Benz Building, and, according to
Rothstein, it contacted Swoboda of the Hickey Company regarding the installation
of three new boilers which also included considerable revamping of the entire
powerhouse. Swoboda verbally agreed to perform this work and about July 11, a
written agreement was signed by the parties.
In the meantime, about July 3, the 3-M Company placed an order with Blesi-Evans,
representative for Orr & Sembower, for the purchase of three packaged boilers, two
300 horsepower and one 150 horsepower, combination gas and oil on all units.
Richard Aspenson, employed by 3-M as a mechanical engineer and project man-
ager, stated the boilers were to be delivered in 10 weeks.
There is no contention that the 3-M Company had collective-bargaining agree-
ments with either Local 455 or Local 34. Of course, Hickey Company as a member
of the Contractors Association was a party to the contract.
Rothstein testified that about August 16 Mooney, whom he had known for many
years, telephoned him to explain "that we were going to have a problem over the
installation of these new boilers at the Benz building" because the Contractors Asso-
ciation and Local 455 had a new fabrication clause in their agreement and the
installation of the boilers in question would be in violation of the agreement. Roth-
stein stated he had no knowledge of any such agreement and asked Mooney to send
a copy of the contract. Mooney agreed and added that after Rothstein had examined
the contract he would like to meet the Company "to discuss the problem that would
probably occur if we gave orders, or if we asked the Hickey Company to install
these packaged boilers." The conversation then ended.
Mooney said he received a report that Hickey Company had a contract to install
packaged boilers at the Benz Building so, on August 16, he telephoned Rothstein to
inform him of the fabrication clause in the new agreement. In the course of their
conversation Mooney told Rothstein "its entirely possible that if the men [Hickey
Company employees] were given direction or order to install the boilers they may
refuse." When Rothstein said he was not familiar with the contract Mooney prom-
ised to send him a copy thereof. The same day Mooney mailed two copies of the
agreement to Rothstein with an accompanying letter suggesting that a meeting be
held for the purpose of discussing the matter.
Swoboda stated that sometime prior to August 30, Mooney called and informed
him that he better not remove the old boilers because if the new "boilers came in
piped, we would not be able to install them."
On August 27, the Fabrication Committee held a meeting, at the request of the
union members, for the purpose of discussing the installation of packaged boilers at
the Benz Building project and the Cleveland Junior High School job. (The latter
job is discussed below.) While Moriarty had no difficulty in recalling the general
discussion on the subject matters of the meeting, he was hazy regarding the details
thereof. However, in his capacity as recording secretary, Moriarty prepared a
memorandum summarizing events occurring at the meeting, which he prepared
shortly after the session ended. According to this memorandum, Mooney related his
attempts "to head off a dispute" at the Benz Building which arose as a consequence
of the Hickey Company entering into an agreement with the 3-M Company for the
remodeling of the boilerroom and the installing of three packaged boilers which
had been purchased directly by the 3-M Company. Mooney pointed out he had
contacted officials of the Hickey Company as well as Rothstein and that he had
sent a letter to Rothstein requesting a meeting, but so far Rothstein had not answered
the letter. After some discussion the committee members agreed that if the Hickey
Company carried out its contract with the 3-M Company it would be in violation
of the existing collective-bargaining agreement, and that the Hickey Company should
be so notified. The members further suggested that the Hickey Company should
inform the 3-M Company that work on Benz Building project would have to cease
unless the problem of shipping package boilers with trim piping attached was
resolved."
On August 30, Mooney wrote Swoboda that if the boilers were delivered at the
Benz Building with piping formations attached this "would be in violation of our
labor agreement with you, and our men will not install these boilers, as I have so
advised you."
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 2 or 3, Moriarty , Mooney, and O'Donnell met with Rothstein and
a Mr. Parkinson , of the 3-M engineering department . Mooney stated the existing
contract with Hickey Company precluded the installation of packaged boilers on
the Benz project and if the boilers were delivered with piping formations attached
the men would not install them.
Moriarty expressed the opinion that the agreement prohibited the installation of
packaged boilers.
Rothstein , in answer to Mooney 's position , stated that the decision to use packaged
boilers and the contract with Hickey Company occurred while Local 455 and the
Contractors Association were negotiating their agreement and the job should be
completed as planned by the 3-M Company. Parkinson also pointed out that
packaged boilers were more efficient and that they were guaranteed provided they
were tested and fired at the factory . However, Parkinson did not know whether the
guarantee would stand if the manufacturer had to disassemble certain parts which
would have to be reassembled at the jobsite . Rothstein added that the 3-M Com-
pany was further concerned about the Local's position regarding the installation of
its own top-secret equipment which had exterior piping on it. Rothstein said the
meeting ended with his statement that he would discuss the matter with top 3-M
officials and notify Mooney whether they would go along with his request that
external piping be removed from the boilers before delivery to the jobsite.
Following the meeting, Mooney sent Rothstein a copy of his letter to Swoboda,
dated August 30. Moriarty , likewise, sent Rothstein a copy of his letter to Swoboda,
dated September 4, which stated that the Fabrication Committee , on August 27, had
unanimously endorsed Local 455's position requiring full enforcement of the agree-
ment on the Benz Building job.
About September 6 and 12, meetings were held between representatives of the
Union and 3-M with each side maintaining its previously announced position . Around
the latter date, 3 -M notified Orr & Sembower to hold up shipment of the boilers,
which had been completed . Klein, of Orr & Sembower , testified that two of the
boilers were completed and ready for shipment on September 9, and the third one on
September 13.
Mooney also had meetings with Swoboda around the same time and reaffirmed
his position that the men would not install the boilers if they were prepiped.
About October 5 or 6 , Rothstein met with Mooney at which time the 3-M Com-
pany agreed to remove nine pieces or assemblies from the boilers and Mooney then
agreed to install them. Mooney also agreed the Union would not enforce its
fabrication clause insofar as the installation of the Company 's trade-secret equipment
was concerned.
On October 8, Richard Aspenson , 3-M mechanical engineer , sent a memorandum
to Blesi-Evans instructing them to notify On & Sembower to remove nine specified
items from the boilers and to ship them separately with the boilers . Upon receiving
this memorandum , Blesi contacted Orr & Sembower and instructed them to remove
the designated items from the boilers . About the same date , Orr & Sembower sent
Blesi an invoice specifying the items which had been removed from the boilers and
a statement that the items removed were being boxed and shipped with the boilers.
The invoice stated shipment was scheduled for the week ending October 13. Blesi
testified this was first time his company had sold a packaged boiler without the trim
piping attached thereto.
Klein testified the specified items were removed from the boilers, packaged sep-
arately, and the boilers and items were shipped to the 3-M Company on October 11.
It is not clear just when the boilers were delivered but sometime prior to October 21
Rothstein , Mooney, and O'Donnell went to the jobsite to inspect the boilers
and they all agreed the items had been removed therefrom. Rothstein then requested
Mooney to sign the following memorandum agreement , which Rothstein had already
signed, which is dated October 16:
Over the past few weeks, we have discussed on numerous occasions a prob-
lem concerning the installation of three "package boilers" at the Benz Building
here in St. Paul. You have advised us that members of the Pipefitters Associa-
tion, Local No. 455, will not install these boilers as packaged units.
In an effort to continue the amicable relations that have existed for many
years between the St. Paul Building Trades and 3M Company , 3M Company
has revised its boiler specifications for this installation to provide that certain
fabrication work on these boilers will be performed at the job site.
In return for our decision to change these specifications, Local 455 agrees
that it is not the intention of Local 455 to in any way infringe on 3M Company's
trade secret equipment.
UNITED ASSN . PIPE FITTERS LOCAL 455, ETC. 305
Mooney approved and signed the memorandum about October 21, and installation
commenced that day.
Rothstein testified that the original target date for installation of the boilers
was October 1, installation actually commenced around October 21, and by early
January 1964 two of the boilers had been installed. At the time of the hearing the
third boiler was in the process of being installed and expected to be completed by
March 1. The delay encountered in the installation of the boilers, according to
Rothstein, was partially attributable to the labor dispute concerning their installation.
Aspenson, on the basis of a study conducted by himself, company officials, and
the Hickey Company, estimated the 3-M Company incurred the following "direct
costs" in connection with the installation of the boilers- $644 for removal of items
from boilers, and shipment, by Orr & Sembower; $2,000 labor cost for reinstalling
disassembled items, $500 electrical cost for rewiring trim items which had been
removed; $4,500 extra labor and tempoiary piping changes in the building and boiler-
room necessary to keep the plant in operation while in the process of installing the
new boilers; $1,500 additional cost of the "boiler breaching," that is the gas connec-
tions from the boiler outlet to the stack, due to change in the method of removing
the old boilers and installing the new ones.
2. Pierre Aircon Company
Howard Pierre, president of Aircon, testified Aircon executed agreements with
Local 455 and Local 34, and that it joined the Contractors Association "after the
bargaining took effect," some 6 or 8 months prior to the hearing herein. Since
becoming a member, Contractors Association has represented Aircon in certain
grievances or labor disputes.
About July 3, 1963, Aircon signed a contract with the general contractor, one
Granley, which included the installation of a packaged boiler on a project known
as the Delux Check Printers Building, located in the St. Paul area. The boiler
involved was in excess of 30 horsepower and was manufactured by Orr & Sembower.
As Pierre recalled the boiler was received at the dock of the trucking or transfer
company about November. Around that time Moriarty telephoned Pierre request-
ing him to attend a meeting of the Fabrication Committee, which he did. Moriarty,
Mooney, and four other individuals were present at the meeting and they asked
Pierre if he knew that his acceptance of the packaged boiler would violate the
agreement. It is not clear what, if any, response Pierre made, but he was aware of
the fabrication clause in the agreement. The committee members then pointed out
that boilers delivered with accessories or burners prepiped were in violation of the
agreement and discussed ways and means of handling the matter. However, no final
decision was reached at the meeting. Later, the committee notified Pierre that he
was "assessed" $100, to be paid to the St. Paul Industry Fund, for violation of the
agreement. Pierre accepted the decision, paid the assessment, and installed the
boiler without any removal or disassembly of items or parts. Pierre stated Aircon
had been installing packaged boilers for 7 or 8 years and this was the first time Local
455 had raised any question regarding their installation.
Moriarty and Mooney said the Delux job was discussed at a committee meeting
on September 4, and the members, consistent with their position, decided the installa-
tion of the packaged boiler in the Delux building would be in violation of the
agreement. Mooney further stated Pierre was notified of the committee's decision.
While the testimony of Moriarty and Mooney was rather general and sketchy con-
cerning the discussions of the Delux job, the minutes of the Fabrication Committee
meeting of October 22 reveal that Pierre was present for about 15 minutes during
the discussion and then left. Thereafter, the committee unanimously adopted a
motion to the effect that it "take a position of leniency regarding this contract viola-
tion by Pierre-Aircon Company on the Delux Check Company boiler installation."
and, without setting a precedent for future violations, assessed a penalty of $100
against Aircon.
Both Moriarty and Mooney testified that the dispute was settled on this basis, the
penalty was paid, and the boiler was installed without any disassembly.
3. Upper Midwest Piping Company
Carl Sorensen, vice president of Upper Midwest, stated the company is engaged
in the business of mechanical contracting in Minneapolis, is a member of the Mechan-
ical Contractors Association of Minneapolis, and has agreements with Pipe Fitters
Local 539 and Plumbers Local 15, of Minneapolis. While Upper Midwest is not a
206-446-66-vol. 151 21
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
member of the St. Paul Contractors Association, it signed agreements with Local
455 and Local 34, about August 5, 1963, identical to the agreements between that
association and the locals.6
In August, as related by Sorensen, Upper Midwest was awarded a contract for
all mechanical work on the Rosemont School, which was located in the St. Paul area.
The contract called for the installation of two packaged boilers as described in the
building specifications and plans. On September 9, Upper Midwest placed an order
for these boilers, each 250 horsepower, with the Heinen Company, representative for
Cleaver-Brooks in Minneapolis Around the first of October, Sorensen called Mooney
to request men for the job and, after describing the job, Mooney stated that under
the contract provisions, "the trim piping and the gas train, etc , shouldn't be on these
boilers when they came in." Mooney, according to Sorensen, did not say the con-
tract prohibited the use of packaged boilers or that his members would not install
them. Sorensen reported his conversation with Mooney to Lawrence Heinen and
told Heinen not to deliver the boilers to the jobsite with the trim piping attached.
Apparently, this conversation took place on October 8, for Sorensen later testified
he called Heinen on that date to inform him that he, Sorensen, was sending a letter
requesting that certain items be removed from the boilers and Heinen told him not
to worry, that the company was in negotiations and the matter would be cleared
up by the time the boilers would be ready for shipment.
The same day Sorensen sent a letter to Heinen notifying him to, "Ship boilers
with water column, relief valves and gas train unpiped, as per St. Pauls local
requirements."
In November, the boilers were delivered to the jobsite as packaged boilers, with
all items or piping attached and at the time of the hearing they were being installed
by employees of Upper Midwest who are members of Local 539. The record does
not indicate whether there was any unnecessary delay in the installation of the
boilers.
Heinen stated he received an order for two packaged boilers, dated September 16,
from Upper Midwest, together with the specifications issued by the architects and
engineers , which he submitted to Cleaver-Brooks. Thereafter, in accordance with
the usual procedure, Cleaver-Brooks prepared prints, dimensions, and data on the
order which were returned to Heinen for submission to the mechanical contractor
and consulting engineer for the purpose of checking the same with the original
specifications to make certain the factory would fabricate the boilers according to
the specifications and plans.
Obviously, the prints were submitted to Upper Midwest prior to October 8, for on
that date Sorensen called Heinen to state the prints had been approved by the
consulting engineer and that he was transmitting the approved prints to Heinen,
with the notation that piping not be installed on the boilers. Heinen inquired if
Sorensen had talked to Mooney and if the problem concerned the St. Paul agreement
and Sorensen answered , yes, to both inquiries . Heinen ended the conversation by
telling Sorensen the matter had been discussed with Cleaver-Brooks and "would
be taken care of."
Heinen transmitted Sorensen's letter or order of October 8 to Cleaver-Brooks
with a covering letter dated October 10, which noted his comments on the Rose-
mont job. Heinen admitted the boilers were delivered to the jobsite with all piping
attached and he could offer no explanation why they were delivered as packaged
boilers. Heinen also admitted he had no contact with Mooney regarding the
Rosemont job.
Harold Holtz , vice president of Cleaver-Brooks, testified that the company received
the order for two packaged boilers from Upper Midwest and its request of October 8
to ship the boilers without certain attachments and piping. However, the company
did not comply with the October 8 request and shipped the boilers as originally
ordered. The company, according to Holtz, does not sell boilers without the trim
piping and fuel piping attached thereto.
Mooney testified he first learned of the Rosemont project when Sorensen tele-
phoned him prior to starting the job. Mooney was not certain at that time whether
Local 455 had an agreement with Upper Midwest but he knew it was a party to the
Minneapolis agreement . Accordingly , in the course of their conversation he
6 Both the St. Paul and Minneapolis agreements contain reciprocal working clauses
which provide that: "The Employer further agrees when performing work in the juris-
diction of another union of the United Association to be bound by all of the provisions
of the working agreement effective in that jurisdiction , to the same extent as if signatory
thereto, provided there is in force a like reciprocal clause in the working agreement of
such other union
UNITED ASSN. PIPE FITTERS LOCAL 455, ETC. 307
requested Sorensen to observe the fabrication provision in the St. Paul agreement
since it was applicable under the reciprocal clauses contained in both the St. Paul and
Minneapolis agreements. The record does not disclose what, if any, response Soren-
sen made to Mooney's request, or what, if any, conclusion was reached as a result
of the conversation. Mooney further stated that sometime later he and Sorensen
had another telephone conversation in which Sorensen said he had requested that
the boilers come in without piping formations attached.
E. The contentions of the parties
In sum, the General Counsel and counsel for American Association contend that
the fabrication clause as interpreted, construed, and applied falls within the proscrip-
tion of Section 8(e), that it is directed solely to a boycott of packaged boilers deliv-
ered to the jobsite for installation and is, therefore, beyond the intendment of the
construction industry proviso. Consequently, the Respondent Unions by threatening,
coercing, and restraining persons and employers with an object of forcing or requiring
them to enter into an agreement containing the fabrication clause and to cease using,
handling, transporting, or otherwise dealing in the products of, or to cease doing
business with other persons, thereby violated Section 8(b) (4) (ii) (A) and (B)
of the Act.
The Respondent Unions assert that the clause is primary in nature and a lawful
work-protection provision directly relating to wages, hours, and working conditions
of employees within the bargaining unit, therefore, the clause comes within the
protection of the construction industry proviso to Section 8(e). Accordingly, since
the clause is lawful the Respondent Unions may take lawful primary economic action
to enforce such provision.
Concludings Findings
1. As to the 8(e) allegations
The plain language of Section 8(e) s as well as the legislative history indicates
that Congress was intent upon banning all forms of hot cargo agreements 8 More-
over, the legislative history indicates that Congress intended "to close the Sand Door
loophole," 9 by making it unlawful for a labor organization to successfully persuade
an employer "to live up to" a hot cargo agreement.10 Again, as aptly expressed by
Senator Goldwater, the section was intended to outlaw what is in effect "a secondary
boycott in futuro," that is, "an agreement by an employer to permit a secondary
boycott to be conducted against him." 11
The legislative history and language of Section 8(e) leave no doubt that that
section was designed to outlaw agreements under which an employer agrees in
advance to permit unlawful secondary boycotts to be conducted against him and,
obviously, Congress intended Section 8(e) and 8(b)(4) to be construed in harmony.
Recognizing the broad proscription of Section 8(e), the Board has cautioned against
generalization in the application thereof and has made it clear that each case must
be considered on its own in the light of the particular restriction involved and the
underlying intent of the restriction.12
7 Section 8(e) states that: It shall be an unfair labor practice for any labor organiza-
tion and any employer to enter into any contract or agreement, express or implied,
whereby such employer ceases or refrains or agrees to cease or refrain from handling,
using, selling, transporting or otherwise dealing in any of the products of any other
employer, or to cease doing business with any other person, and any contract or agree-
ment entered into heretofore or hereafter containing such an agreement shall be to such
extent unenforcible and void: Provided, That nothing in this subsection (e) shall apply
to an agreement between a labor organization and an employer in the constiuction in-
dustry relating to the contracting or subcontracting of work to be done at the site of
the construction, alteration, painting, or repair of a building, structure, or other
work ...
8 Los Angeles Maalers Union No. 9, I T.U. (Hillbro Newspaper Company, etc ), 135
NLRB 1132, 1134.
O Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL, et at.
(Sand Door & Plywood Co.) v. N.L.It B., 357 U.S. 93.
lu II Legislative History 1569, 1581, 1708.
11 11 Legislative History 1829.
'-"Milk Drivers and Dairy Employees Union, Local 546, etc. (Minnesota Milk Company),
133 NLRB 1314.
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Here the record shows that for some years Local 455 was deeply concerned over
the mounting sales of packaged boilers and their impact upon employment of its
members Faced with this situation, Local 455 in the negotiations leading to the
1959 and 1961 agreements demanded, without success, that the Contractors Associa-
tion agree to a fabrication clause to alleviate this condition. As the sale and use of
packaged boilers continued at a rapid rate and during the early part of 1963 con-
stituted from 60 to 85 percent of all boiler installations, Local 455 renewed its
demand for a fabrication clause in the 1963 contract negotiations. This time Con-
tractors Association acceded to Local 455's demand and the evidence shows that
the parties reached agreement on all contract terms around April 29, and formally
signed the agreement about July 1 or 15. From the foregoing facts it is clear the
fabrication clause was prompted by the desire of Local 455 to have contractors and
other persons cease selling, using, handling, or otherwise dealing in packaged boilers
and further proof of such motivation is established by the manner in which Local 455
interpreted and applied the clause to the Benz Building, Delux Check Printers Build-
ing, and Rosemont School projects.
As set forth in the agreement (article I) Contiactors Association recognizes Local
455 as the exclusive bargaining representative "for all employees performing work
within the described jurisdiction." Work jurisdiction as defined in the agreement
(article II, section 1(a)) "covers the rules and working conditions of all journeymen
and apprentices engaged in the installation of all plumbing and/or pipe fitting sys-
tems . . and all other work included in the trade jurisdictional claims of the United
Association." Mooney testified the purpose of the clause was "to preserve work
locally for members of Union 455," and "to provide that members of our Union will
do the work." This indicates to me that from the very beginning it was the intention
of Local 455 to preserve such work for all its members rather than those members
who were employees of Member-Contractors i'i Thus, when Sorensen informed
Mooney that Upper Midwest had a contract to install a packaged boiler Mooney
referred to the fabrication clause and declared, "that is our work." Although Upper
Midwest already had an agreement with Minneapolis Local 539, it signed an agree-
ment with Local 455, and ultimately completed the job with employees who were
members of Local 539. It is thus apparent that application of the work jurisdiction
provision, here in issue, is not confined to the bargaining unit.14 Moreover, the
fabrication clause as construed, interpreted, and applied requires that essential
external piping and parts of the boiler which are prefabricated at the manufacturer's
plant by employees outside the bargaining unit must be fabricated at the jobsite by
members of Local 455 In line with this position, the 3-M Company was required
to instruct the manufacturer, Orr & Sembower, to remove specified items from the
packaged boilers it had ordered, and when the boilers and items were delivered sep-
arately at the jobsite members of Local 455 reassembled the parts and completed the
installation, at substantial cost and delay to the 3-M Company. In like fashion,
Upper Midwest notified Cleaver-Brooks to remove external piping from the pack-
aged boilers ordered for the Rosemont School project, but for some unstated reason
the boilers were delivered in packaged form and installed. Again the Aircon Com-
pany was granted an exception to the clause and allowed to install a packaged boiler
in the Delux Check Printers Building, but was assessed a $100 penalty for this
privilege.
Further, I fail to see how the validity of the fabrication clause can be sustained
on the theory that it is primary in character and designed merely to protect work
which has "traditionally" or "customarily" been performed by members of Local
455. Unquestionably, the job of installing boilers, be they packaged or field-
assembled, has been done by members of Local 455 for many years. It is also
true, as Mooney admitted, that Local 455 members have installed packaged boilers,
with external piping, controls, and attachments fabricated in the plants of boiler
manufacturers from the 1950's to the date of the 1963 agreement Consequently, the
history covering the installation of packaged boilers not only refutes the contention
of Local 455, but proves the contrary. Thus, the plain purpose of the clause was,
and is, to secure work for members of Local 455, which is being performed by
employees of the boiler manufacturers through restrictive contractual arrangement
directed against the products of the boiler manufacturers.
Counsel for Local 455 also contend that the "installation of boilers is always job-
site work," so the fabrication clause comes within the purview of the construction
13 As noted above, Local 455 has individual and identical agreements with mechanical
contractors who are not members of Contractors Association.
14 Meat and Highway Drivers, etc., Local Union No. 710 , etc. (Wilson ,& Co. Inc, et al.),
143 NLRB 1221.
UNITED ASSN. PIPE FITTERS LOCAL 455, ETC. 309
industry proviso to Section 8(e). In the amicus brief, counsel state the purpose of
the proviso was to stabilize wages in the construction industry and to protect the
job integrity of the bargaining unit. Counsel further argue there is no difference in
the method used by the boiler manufacturers and the Contractor-Members to assem-
ble and affix external piping, controls, and attachments to the boiler (both obtain
component parts from suppliers), other than the former perform this work in their
plants whereas the latter perform the work at the jobsite The same arguments were
advanced, and rejected, in the Cardinal Industries case 15 There the Trial Examiner
held that the union had construed the statutory words, "work to be done at the job-
site" to be synonymous with "work that could be done" or "work that might be done"
at the jobsite. The Trial Exammei concluded, "that Congress did not intend the
construction industry exemption to extend to work done away from the actual site
of construction, even though such work might be viewed as part of the construction
process and is of a kind that may feasibly be done at the construction site " The
findings and conclusions of the Trial Examiner were adopted in toto by the Board.
I, therefore, find and conclude that the fabrication clause in the agreement between
Local 455 and Contractors Association, its Member-Contractors, and its agreement
with Upper Midwest Piping, to the extent that that provision, as interpreted, con-
strued, and applied, requires that boilers with external piping, controls, and attach-
ments affixed thereto which are fabricated or manufactured at plants or places off
the jobsite by employees outside the bargaining unit may be installed on the jobsite
only if such boilers are delivered at the project site without external piping, controls,
and attachments affixed thereto and/or that said external piping, controls, and attach-
ments be affixed to the boiler at the jobsite by members of Local 455 and/or pipe-
fitters employed by a contractor under the Local's contract conditions-is violative
of Section 8(e).16
The record shows that Local 34, as a consequence of the joint negotiations, signed
an agreement with Contractors Association containing a fabrication clause identical
to the one in the Local 455 contract, and that MacKenzie, its business agent, served
as a member of the Fabrication Committee. While the complaint alleges that the
"Respondent Unions," through their agents, interpreted, construed, and applied the
fabrication clauses in the manner described, the evidence in this case, as found
above, relates only to acts and conduct on the part of representatives of Local 455,
not Local 34. Again, there is no evidence whatever that MacKenzie ever approached
any employers or persons concerning the interpretation or application of the Local
34 agreement. Nor is there any evidence which would warrant the inference that
representatives of Local 455 were also acting as agents for Local 34, or that Local 34
was in any way bound by their actions Since the violation is bottomed on the
interpretation, construction, and application of the fabrication clause, rather than
the mere execution of the agreement, and the record fails to support that theory, 1 find
Local 34 has not engaged in acts or conduct in violation of Section 8(e).
2. As to the 8(b) allegations
The remaining issue to be determined is whether Local 455 threatened, coerced,
or restrained certain persons and employers with an object of forcing or requiring
them to enter into an agreement prohibited by Section 8(e), and to cease using,
selling, handling, transporting, or otherwise dealing in the products of another pro-
ducer or manufacturer or to cease doing business with any other person, in violation
of Section 8(b) (4) (ii) (A) and (B) of the Act.
In brief, Local 455 claims it did nothing more than try "to persuade" persons or
employers "to observe the fabrication clause," hence it engaged in no unlawful con-
duct. I find no merit in this contention The facts, which are not disputed, clearly
establish unlawful restraint for a prohibited objective within the meaning of Section
8(b) (4), and may be summarized as follows.
About July 3, the 3-M Company placed an order for three packaged boilers from
Orr & Sembower, through its representative Blesi-Evans, and about July 11 it signed
an agreement with the Hickey Company to install the boilers and for other work,
all to be performed at the Benz Building. On August 16, Mooney warned Rothstein
15 Ohio Valley Carpenters District Council, etc. (Cardinal Industries, Inc), 130 NLRB
977, 984-990.
19 Cardinal Industries, Inc, and Wilson d Co, cases, supra; Local 282, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Twin
County Transit Mix, Inc.), 139 NLRB 1077, 1088; Raymond O. Lewis, et al, as agents
for International Union, United Mine Workers of America , et at. (Arthur J. Galligan),
144 NLRB 228.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that 3-M "was going to have a problem over the installation of these new boilers"
because of Local 455's fabrication clause and if "the men" were ordered to install
the boilers "they may refuse" to do so. On August 27, the Fabrication Committee
held a meeting and after Mooney related his efforts "to head off a dispute" at the
Benz Building, the members agreed with his position and further decided that the
Hickey Company should inform 3-M "that work on the Benz Building would have
to cease unless the problem of shipping package Boilers with trim piping attached
was resolved."
Thereafter, Mooney and O'Donnell met with 3-M officials about September 2, 6,
and 12 and Mooney reaffirmed his position, "that if the boilers came in with piping
formations attached, that we would not install the boilers, or the men would not
install them." The 3-M Company thereupon notified Orr & Sembower to withhold
shipment of the boilers, all of which were ready to be shipped on September 13.
About October 5, 3-M agreed to have the disputed piping or assemblies removed
from the boilers and Mooney agreed that his members would then install the boilers.
Pursuant to instructions from 3-M, Orr & Sembower removed the specified items
and shipped them in a separate container along with the boilers. When the boilers
were received at the jobsite Rothstein, Mooney, and O'Donnell inspected them to
make certain the objectionable parts had been removed. Upon being satisfied on
that point, Mooney signed the above-mentioned memorandum and the members,
employees of Hickey Company, then commenced the task of reassembling the items
and installing the boilers. While the memorandum may be lacking in legal formality,
the language makes it clear that Local 455 refused to install the packaged boilers
unless certain fabrication work thereon was performed by its members at the jobsite,
and 3-M acceded to these demands. Consequently, whether the memorandum be
considered as a separate agreement, or a reaffirmation of Local 455's standard fabrica-
tion clause, it constitutes an "entering into" an agreement within the meaning of
Section 8(b) (4) (ii) (A). Of course, the fact that the agreement may also relate
to the installation of "trade-secret equipment" does not lessen or alter the fact that
one of the objectives thereof was unlawful.
On the basis of these facts I find that Local 455 threatened, coerced, and restrained
the 3-M Company with an object of forcing or requiring it to enter into an agree-
ment prohibited by Section 8(b) (4) (ii) (A) 17 and to cease using the products of
Orr & Sembower and to cease doing business with it in violation of Section 8(b) (4)
(ii) (B) of the Act,16
I further find that Local 455, through Mooney, threatened, coerced, and restrained
the Hickey Company with an object of forcing or requiring Hickey Company to
cease using, handling, or otherwise dealing in the products of Orr & Sembower and
to cease doing business with the 3-M Company in violation of Section 8(b) (4) (ii) (B)
of the Act.
I further find and conclude that an object of the foregoing coercive acts was to
force Hickey Company to reaffirm the existence and effectiveness of the unlawful
fabrication clause. The Board has held that reaffirmation of a hot cargo arrangement
is included within the meaning of the statutory phrase "to enter into" and is unlaw-
ful under Section 8(e), and that a union's attempt by coercive means to obtain such
reaffirmation from an employer is violative of Section 8(b) (4) (ii) (A).19 I there-
fore find Local 455 violated Section 8(b)(4)(ii)(A) of the Act.
The complaint alleges that Local 455's action directed against Pierre Aircon was
coercive and for an unlawful object. The facts, as set forth above, show that around
July 3, Aircon, as subcontractor, agreed to install a packaged boiler, manufactured
by Orr & Sembower, at the Delux Check Printers Building. When the boiler was
delivered, Mooney, as well as the Fabrication Committee, warned Pierre that installa-
tion of the boiler with piping attached would be in violation of the fabrication clause.
It is undisputed, as appears in the minutes of the Fabrication Committee meeting of
October 22, that Aircon was assessed a penalty of $100 for installing the packaged
boiler in violation of the fabrication clause.
17 Los Angeles Mailers Union No 9, IT. U. (Hillbro Newspaper Printing Company,
Division of Hearst Publishing Company, Inc.), 135 NLRB 1133, enfd, 311 F. 2d 121
(C A D.C ). See also Dan McKinney Co., 137 NLRB 649, 653-657.
18 Cardinal Industries , supra ; International Association of Heat and Frost Insulators
and Abestos Workers (Insul-Coustie Corporation ), 139 NLRB 659 ; Local 456, Interna-
tional Brotherhood of Teamsters , Chauffeurs , Warehouseman and Helpers of America
( Sid Harvey Westchester Corp.), 142 NLRB 1409.
10 Hillbro Newspaper Printing Company, supra ; District No. 9, International Association
of Machinists ( Greater St . Louis Automotive Trimmers and Upholsterers Association , Inc.),
134 NLRB 1354, 1359-1360, enfd. 315 F. 2d 23 (C.A.D.C.).
UNITED ASSN. PIPE FITTERS LOCAL 455, ETC. 311
The record does not disclose when Aircon began the installation work or when
it was completed. Pierre's testimony is to the effect that he was not allowed to
install the packaged boiler until after the assessment was levied and that he paid the
penalty on some undisclosed date. However, I do not consider it material whether
the penalty was assessed before Aircon was permitted to perform the installation or
during the course thereof.
I, therefore , find and conclude that Local 455 threatened , coerced, and restrained
Aircon with an object of foicing or requiring Aircon to cease using, selling, handling,
or otherwise dealing in the products of or to cease doing business with Orr & Sem-
bower, Inc., in violation of Section 8(b) (4) (ii) (B).
By the foregoing coercive acts, Local 455 reaffirmed the effectiveness of the fabrica-
tion clause and its determination to enforce the clause, so for the reasons stated above,
I find this constitutes an "entering into" an agreement prohibited by Section 8(e),
consequently, Local 455 engaged in unfair labor practices within the meaning of
Section 8 (b) (4) (u) (A) of the Act.
The complaint also alleges unlawful conduct directed against Upper Midwest
Piping at the Rosemont School project. While the testimony is fragmentary and
hazy regarding certain details and dates of events, the basic facts are established
with sufficient clarity considering all the evidence.
Sometime in August, Upper Midwest secured a contract calling for, inter alia, the
installation of two packaged boilers at Rosemont School. Around August 5, Upper
Midwest also signed an agreement with Local 455. Thereafter, about September 9,
Upper Midwest ordered two Cleaver-Brooks boilers through Heinen Company. Later,
around the first of October, Mooney told Sorensen that, in accordance with the
fabrication clause, the boilers should not be delivered with external piping attached.
Sorensen thereupon reported the foregoing conversation to Heinen and about Octo-
ber 8 Soresen issued written instructions to Heinen to have the disputed piping
removed from the boilers prior to shipment. Despite these instructions, and for
reasons not stated, the boilers were delivered to the jobsite in packaged form in No-
vember and were installed by Upper Midwest employees who were members of
Local 539
Counsel for Local 455 contend Mooney did not threaten Sorensen but merely
called his attention to the fabrication clause and, in any event, the case is moot
because the boilers were actually installed.
Mooney, of course, adopted the same position towards the installation of packaged
boilers by Upper Midwest as he did with other contractors. Again, although
Mooney's statements to Sorensen may not have been as strong as in the other cases,
he made it abundantly clear to Sorensen that the boilers should be delivered without
external piping attached. This request, or demand or directive, was all that was
necessary to convince Sorensen that the external piping had to be removed, and he
immediately instructed Heinen to have Cleaver-Brooks remove the objectionable parts
from the boilers prior to shipment. It is true Mooney did not threaten Sorensen
with a work stoppage or an outright declaration that members of Local 455 would
not install the packaged boilers. However, Mooney did not reach a point where
threats were necessary for Sorensen, without question, promptly complied with his
request or demand. Nor do I consider the case moot because, for reasons not stated,
the boilers were installed in packaged form by employees who were members of
Local 539. Certainly, there is nothing in this record which remotely suggests that
Local 455 ever receded from its adamant position concerning the installation of
packaged boilers by Upper Midwest or any other contractor, or that it agreed,
expressly or impliedly, to permit its members to perform the installation work in
question. Of course, it is well settled coercion need not be successful to constitute
a violation of the Act.20
Considering the circumstances of this case as well as Local 455's pattern of con-
duct, I find Mooney's statements to be coercive with an object of forcing Upper Mid-
west to cease using or handling Cleaver-Brooks products and to cease doing business
with Heinen Company and Cleaver-Brooks in violation of Section 8(b) (4) (u) (B)
of the Act.
I further find and conclude an objective of these acts was to force or require Upper
Midwest to reaffirm the existence and effectiveness of the unlawful fabrication clause,
therefore, Local 455 violated Section 8(b) (4) (ii) (A) of the Act.
20 N L R B. v. Local 294 International Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America (K-C Refrigeration Transport Co.), 284 F. 2d 887 (C.A. 2) ,
Drivers and Chauffeurs Local Union No. 816, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America ( Montgomery Ward 4 Co .) v. N.L R B ,
292 F. 2d 329 (C.A. 2).
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint further alleges that Local 455 unlawfully threatened, coerced, and
restrained Bettenberg, Townsend, Solte & Comb (BTS & C), for a proscribed objec-
tive, namely, to cease using or otherwise dealing in the products of, or to cease doing
business with Orr & Sembower and Cleaver-Brooks Company.
C. Vaughn Anderson, chief mechanical engineer for BTS & C, an architectural
and engineering firm, stated that in 1963 the firm was engaged to perform services
for the St. Paul School Board in connection with the remodeling of Cleveland Junior
High School. The firm prepared plans and specifications therefor, including the
heating system and renovation of the boilerroom. With respect to the heating
system, the specifications called for the use of two packaged boilers, 250 horsepower,
of the type manufactured by Orr & Sembower and Cleaver-Brooks, which were to be
prefired and pretested and carry the label of the Underwriter's Laboratory. Public
bids were invited on the various phases of the project and the Hickey Company was
the low bidder for the mechanical work .
While Anderson did not give the approximate dates of these occurrences, they
probably took place in the early part of the summer. In any event, on August 18,
Mooney telephoned Anderson to inquire if he was aware of the agreement between
the Union and the Contractors Association covering the installation of packaged
boilers as provided in the specifications for this job. Anderson said he was not
familiar with the agreement and asked if the Union would strike if he proceeded with
the plans and Mooney answered no. However, Mooney stated, "the pipe fitters would
be within their rights if they refused to connect the specified boilers." The conversa-
tion ended with Mooney agreeing to confirm their conversation in writing.
On August 19, Mooney sent a letter to Anderson and in substance stated that in
view of the agreement with the Contractors Association, a copy of which was enclosed,
the Union's refusal to handle packaged boilers would not be in violation of the
secondary boycott provisions of the Act.
Thereafter the Fabrication Committee considered this job at its meeting on
August 27, as stated above, and reached the same conclusion concerning the installa-
tion of packaged boilers on this job as it did in the 3-M matter. Moriarty also sent
Anderson a copy of his letter to Swoboda dated September 4, enclosing the Union's
position calling for full enforcement of the fabrication clause in the agreement.
Anderson testified the Cleveland Junior High School project had not commenced
because the cost of the project exceeded the appropriation and the School Board was
rebidding the job.
Mooney's testimony regarding his position in this matter does not materially differ
from Anderson's account thereof.
I attach no importance to this incident, other than it shows Local 455 and the
Fabrication Committee followed a pattern of conduct in interpreting the fabrication
clause. However, I find the statements made by Mooney in his telephone call and
letter to Anderson are insufficient to prove that he thereby threatened, coerced, or
restrained Anderson with an object of forcing BTS & C to sign the agreement, or to
cease using or dealing in the products of, or to cease doing business with Orr &
Sembower and Cleaver-Brooks. Here, of course. the boilers were never ordered
from either of these companies and the Cleveland Junior High School job never even
materialized Finally, as found above, there is no evidence to sustain the allegation
that BTS & C was, or is, engaged in commerce within the meaning of the Act.
Accordingly, I find the record fails to sustain the allegations of the complaint in
respect to the BTS & C incident.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth above have a close, intimate, and sub-
stantial 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 Respondents have engaged in certain unfair labor practices,
it will be recommended that they cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
It has been found that Respondent Local 455 demanded the fabrication clause as a
means to prevent, for all practical purposes, the sale and use of packaged boilers and
Respondents Local 455 and Contractors Association, its Member-Contractors, and
Upper Midwest Piping, Incorporated, have so interpreted, construed, and anplied the
clause to employers and persons involved in the Benz Building, Delux Check Printers
Building, and Rosemont School projects.
UNITED ASSN. PIPE FITTERS LOCAL 455, ETC. 313
It has also been found Respondent Local 455 threatened and coerced Minnesota
Mining & Manufacturing Company, D. W. Hickey Co., Inc., Pierre Aircon Company,
and Upper Midwest Piping, Incorporated, to enter into agreements containing the
fabrication clause which it has interpreted, construed, and applied as precluding the
installation of packaged boilers manufactured by Orr & Sembower, Inc., and Cleaver-
Brooks Company, and which had been sold by their local representatives.
Because the record shows that Respondent Local 455 has similar agreements with
some one hundred independent mechanical contractors in the area and as Local
455's past conduct indicates that unless enjoined the commission of further unlawful
acts may be anticipated, I shall recommend that Respondent Local 455 cease and
desist from engaging in the conduct found unlawful against the named employers
and persons, as well as against any other employer or person.
Because Respondents Contractors Association, its Member-Contractors, and Upper
Midwest Piping, Incorporated, have interpreted, construed, and applied the fabrica-
tion clause for proscribed objectives, I shall recommend a broad order enjoining
8(e) violations on the part of these Respondents.
Upon the basis of the foregoing findings of fact, and upon the entire record, I
make the following:
CONCLUSIONS OF LAW
1. Respondents Local 455 and Local 34 are labor organizations within the mean-
ing of Section 2(5) of the Act.
2. Respondent St. Paul Association of Plumbing, Heating and Mechanical Con-
tractors, Inc., is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
3. Upper Midwest Piping, Incorporated, D. W. Hickey Co., Inc, Pierre Aircon
Company, Minnesota Mining & Manufacturing Company, Orr & Sembower, Inc.,
Cleaver-Brooks, and the Heinen Company are employers engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act, and are persons engaged in
commerce within the meaning of Section 8(b) (4) (ii) of the Act.
4. By entering into and maintaining an agreement containing a fabrication clause
which, as interpreted, construed, and applied, requires that packaged boilers pre-
fabricated at plants by employees of employer-manufacturers may be used or installed
in construction on the project jobsite only if external piping, controls, and attach-
ments of the packaged boiler are fabricated at the jobsite by members of Respondent
Local 455, Respondent Local 455 and Respondent St. Paul Association of Plumbing,
Heating and Mechanical Contractors, Inc., its Member-Contractors, and Respondent
Upper Midwest Piping, Incorporated, engaged in unfair labor practices within the
meaning of Section 8(e) of the Act.
5. By threatening, coercing, and restraining Minnesota Mining & Manufacturing
Company with an object of forcing or requiring said Company to enter into an agree-
ment prohibited by Section 8(e), and to cease using, selling, handling, or otherwise
dealing in the products of, or doing business with, Orr & Sembower, Inc., the Respond-
ent Local 455 engaged in and is engaging in unfair labor practices within the meaning
of Section 8(b) (4) (ii) (A) and (B) of the Act.
6 By threatening, coercing, and restraining D. W. Hickey Co., Inc., with an object
of forcing or requiring said Company to enter into an agreement prohibited by
Section 8(e), and to cease using, selling, handling, or otherwise dealing in the
products of, or doing business with, Orr & Sembower, Inc., and Minnesota Mining
& Manufacturing Company, the Respondent Local 455 engaged in and is engaging
in unfair labor practices within the meaning of Section 8(b) (4) (ii) (A) and (B)
of the Act.
7. By threatening, coercing, and restraining Pierre Aircon Company with an
object of forcing or requiring said Company to enter into an agreement prohibited
by Section 8(e), and to cease using, selling, handling, or otherwise dealing in the
products of, or doing business with, Orr & Sembower, Inc., the Respondent Local 455
engaged in and is engaging in unfair labor practices within the meaning of Section
8(b) (4) (ii) (A) and (B) of the Act.
8. By threatening, coercing, and restraining Upper Midwest Piping, Incorporated
with an object of forcing or requiring said Company to enter into an agreement
prohibited by Section 8(e), and to cease using, selling, handling, or otherwise deal-
ing in the products of, or doing business with, Cleaver-Brooks Company and The
Heinen Company, its representative, the Respondent Local 455 has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(b) (4) (u) (A)
and (B) of the Act.
9. Respondents did not unlawfully, threaten, coerce, or restrain Bettenberg, Town-
send, Solte & Comb for a proscribed objective as alleged in the complaint in
Case No. 18-CC-143.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
10. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
11. Respondent Local 34 has not engaged in any unfair labor practices as alleged
in the complaint in Cases Nos . 18-CE-4 and 18-CE-6.
[Recommended Order omitted from publication.]
United Association Pipe Fitters Local Union No. 539 and United
Association Plumbers & Gasfitters Local Union No. 15,1 both
affiliated with the United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO and Mechanical Contrac-
tors Association of Minneapolis, Inc: et al. and American
Boiler Manufacturers Association 3
United Association Pipe Fitters Local Union No. 539 , affiliated
with the United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the United States
and Canada , AFL-CIO (Lamb Plumbing & Heating Co ., et al.)
and American Boiler Manufacturers Association . Cases Nos.
18-CE-5 and 18-CC-144. August 5,1965
DECISION AND ORDER
On July 14, 1964, Trial Examiner Reeves R. Hilton issued his Deci-
sion in the above-entitled proceeding, finding that Respondent, Local
Union No. 539, Local Union No. 15, and the Contractors Association
and its Member-Contractors, 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. He also found that Local Union
No. 539, Local Union No. 15, and Respondent Burniece's, Inc., a mem-
ber of the Contractors Association, had not engaged in certain alleged
unfair labor practices, and recommended that the complaint be dis-
missed with respect thereto. Thereafter, the Respondent Unions and
the Charging Party filed exceptions to the Trial Examiner's Decision
and supporting briefs, and the Charging Party filed a brief in answer
to the Respondent Unions' exceptions.
The National Labor Relations Board has reviewed the rulings of
the Trial Examiner made at the hearing and finds that no prejudical
error was committed. The rulings are hereby affirmed. The Board
has considered the entire record in these cases, including the Trial
1 Herein referred to respectively as Local Union No. 539 and Local Union No. 15.
Herein referred to as the Contractors Association.
Herein referred to as the Charging Party.
154 NLRB No. 11.