United Assn. Pipe Fitters Local 539, Etc.

National Labor Relations Board - Board Decisions

Aug 5, 1965

154 N.L.R.B. 314 (N.L.R.B. 1965)

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 2 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
i Herein referred to respectively as Local Union No. 539 and Local Union No. 15.
z Herein referred to as the Contractors Association.
S Herein referred to as the Charging Party
154 NLRB No. 11.
UNITED ASSN. PIPE FITTERS LOCAL 539, ETC. 315
Examiner's Decision, the exceptions, and the briefs,' and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner
only to the extent consistent herewith.
7. As the Trial Examiner found, the 1963 collective-bargaining
agreements, to which Local Union No. 539, Local Union No. 15, and
the Contractors Association and its Member-Contractors were parties,
provided in article XX, section 1, referred to as the fair standards
clause, that "The employer agrees not to sublet or contract out any
work covered herein unless the contractor to whom the work is sublet
is in agreement with a Union affiliated with the United Association."
The Respondent Unions, in effect, conceded that.this clause was viola-
tive of Section 8(e) of the National Labor Relations Act, as amended,
but announced at the opening of the hearing that the parties had
agreed to a new and lawful subcontracting clause, which they urge has
rendered this issue moot. The Trial Examiner found, however, and
we agree, that the inclusion of the original fair standards clause in
the agreement constituted a violation of Section 8(e), and that the
amendment, subsequent to the issuance of the complaint, did not moot
this issue. We shall, accordingly, issue an appropriate order to remedy
this violation.
2. We also agree with the Trial Examiner that the General Counsel
has not established that Local Union No. 539 threatened, restrained,
or coerced Burniece's, Inc., in violation of Section 8(b) (4) (ii) (A)
or (B) ; or that the Respondent Unions and Burniece's, Inc., entered
into any agreement with each other which was violative of Section
8 (e) of the Act.
3. The Trial Examiner found that: (a) Local Union No. 539 and
the Contractors Association and its Member-Contractors, in the course
of conduct occurring at the Tonka Toys, Midwest Oil, and Pure Food
construction projects, interpreted, construed, and applied article XIX,
section 2, of their 1963 agreement, referred to as the fabrication clause,
in a manner violative of Section 8(e), and (b) Local Union No. 539
violated Section 8(b) (4) (i), (ii) (A) and (B) in the course of this
conduct. For the reasons set forth below, we do not agree with these
findings.
A. The alleged violations of Section 8 (e)
So-called "packaged" boilers, i.e., boilers with the trim piping
attached at the factory, were being installed in the Minneapolis area
in steadily increasing numbers, resulting in a considerable decrease
in the amount of work involved in installing such trim piping at the
jobsite, which had previously been available to members of Local Union
4 The request of the Respondent Unions and the Charging Party for oral argument be-
fore the Board is hereby denied as the record, including the exceptions and briefs, ade-
quately presents the issues and the positions of the parties.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No. 539. The Union had therefore sought, and finally obtained in its
1963 collective-bargaining agreement with the Contractors Association
and other mechanical-contractors in the area, a fabrication clause
which provided, in substance, that, "As it primary working condition,"
trim piping "shall be fabricated on the jobsite or in the shop of the
employer signatory hereto by employees covered by this agreement."
No issue has been raised in this proceeding that entering into this
clause constituted a violation of Section 8(e) of the Act.5 The issue
here involved is whether the parties in question subsequently entered
into new agreements construing, interpreting, or applying this fabrica-
tion clause in a manner prohibited by Section 8(e). It is clear that
when representatives of Local Union No. 539 learned that packaged
boilers had been ordered for installation at the projects here involved,
they protested that this was contrary to the fabrication clause, and
requested or demanded that the trim pipe be removed from the pack-
aged boilers which had been ordered. The evidence shows, however,
that the contractors at these projects did not agree to the Union's
requests or demands,6 and that the packaged boilers were installed at
all three projects as delivered without any delay. We find, therefore,
that no agreements to remove piping were reached, and, accordingly,
that the conduct in question did not constitute the entering into of new
agreements within the meaning of Section 8 (e) of the Act.7
5 We find no merit in the contention of the Charging Party that the Board should find
the fabrication clause per se 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 , nor urge at the hearing , that execution of this clause , in itself, con-
stituted a violation of Section 8(e), even though there was no 10 (b) bar to such an
allegation . See United Association Pipe Fitters Local Union No. 455, et al (Ameri-
can Boiler Manufacturers Association ), 154 NLRB 285, issued simultaneously
herewith , in which the Board found no merit in a similar contention raised by the same
Charging Party
6 The record does not support the Trial Examiner ' s statement , in his discussion of the
Tonka Toys incident , that, at a meeting of the committee which negotiated the fabrication
clause , " representatives of Local 539 and Contractors Association interpreted , construed,
and applied the fabrication clause as requiring the removal of at least some items from
the packaged boiler before it could be installed" ; nor does the record show that Local
Union No. 539 made any demand of that nature at this meeting We therefore do not
adopt this finding of the Trial Examiner.
7 Cases such as Dan McKinney Co ., 137 NLRB 649, and District No 9, International
Association of Machinists , AFL-CIO (CTreater St. Louis Automotive Trimmers and Up-
holsterers Association, Inc.), 134 NLRB 1354, are inapposite because in those cases the
Board , Members Fanning and Brown dissenting , found that the conduct of the respond-
ents involved constituted a re-entering into of certain contracts which were violative of
Section 8(e). Here , the General Counsel has not alleged that the fabrication clause is
unlawful or that the conduct of the Respondents constituted a re-entering into of such
clauses . The theory of the complaint is that , by their conduct in construing, interpret-
ing, and applying the fabrication clause , the Respondents have entered into new agree-
ments, which new agreements differ in substance from the fabrication clause and con-
travene Section 8 ( e). As the facts disclose that the Respondent Association and/or
its members did not comply with the Respondent Union's requests or demands that the
piping be removed from the boilers before installation , we, perforce , find that there was
no entering into of new agreements within the meaning of 8(e) and, therefore , no viola-
tions of that section of the Act.
UNITED ASSN. PIPE FITTERS LOCAL 539, ETC. 317
B. The alleged violations of Section 8(b) (4) (i),
(ii) (A) and (B)
1. The Midwest Oil Company incident
About August 2, 1963, Midwest Oil Company had purchased a
packaged boiler from Bros, Incorporated, a boiler manufacturer, which
engaged Bjorkman Bros. Company, a member of the Contractors Asso-
ciation, to install the boiler at the Midwest building project. About
October 9, a Local Union No. 539 representative, Tufte, came to the
jobsite and told Brask and Doyle, Bjorkman employees who were mem-
bers of the Union, that the collective-bargaining agreement required
that trim piping "was to be done in the field." Later that day, Brask
told Nygren, the Bros salesman who had sold the boiler to Midwest
Oil, that Tufte had been at the jobsite, and that "if the boiler came out
piped up with the trim on it, that the job would be stopped." A
couple of days later, Doyle told Nygren to "be sure the trine isn't on
the boiler when you send it over there ... it will save you a lot of
trouble if it comes in like it should." 8 The packaged boiler was deliv-
ered on November 11, with the trim piping attached as ordered, and
was installed by employees of Bjorkman without any delay.
The Trial Examiner found that Tufte induced and encouraged
Brask and Doyle, individuals employed by Bjorkman, to engage in a
strike against, or refusal to perform services for, Bjorkman, with
objects proscribed by Section 8(b) (4) (A) and (B). As shown above,
however, Tufte told Brask and Doyle only that the trim piping "was
to be done in the field." That statement clearly did not constitute
inducement or encouragement to strike or refuse to perform services
within the meaning of subsection (i) of Section 8(b) (4). Nor can we
infer, as the Trial Examiner did, that Tufte "intended" Brask and
Doyle to tell Nygren, an employee of the boiler manufacturer, that
there would be trouble or that the job would be stopped if the boiler
were delivered with the trim piping attached, solely from the fact that
they subsequently made such statements to Nygren. Therefore, as
Brask and Doyle, although members, were not officers or agents of
Local Union No. 539, and as there is no evidence that they were in-
structed by Tufte to warn Nygren as they did, we find that Local
8 Nygren testified that , on October 12, he received a telephone call from a person who
identified himself as Tufte and who stated that if the boiler were delivered to the job
already piped he would stop the job . Tufte denied making any such call, and Nygren
admitted that he had never before heard Tufte's voice and bad no way of knowing it was
he In these circumstances , we do not adopt the Trial Examiner 's finding that Tufte
made this telephone call to Nygren.
31S DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union No. 539 is not responsible for their statements to Nygren s In
these circumstances , we conclude that the record does not establish
that any violation of the Act occurred at this project.
2. The Pure Food and Drug building incident
Paragon Heating & Plumbing Company, a Missouri corporation
which was engaged to do plumbing work on the Pure Food and Drug
building in August 1963 ordered a packaged boiler from Orr & Sem-
bower through Blesi-Evans Company, its area agent. As Paragon
was an out-of-State firm and did not have the required State and
municipal licenses to install the boiler, it engaged Loosen Plumbing &
Heating Company, a member of the Contractors Association, to con-
nect the steampiping. The boiler was delivered to the jobsite on or
about October 31. On the same day or the next day, Seals, a business
representative of Local Union No. 539, approached Kitchen, Paragon's
superintendent on this project, and told him that the boiler did not
conform with the requirements of the fabrication clause, that Paragon
"would probably be taking the piping off and replacing it with his
[Local Union No. 539] members," and that "the boiler manufacturers
had been stealing the work of the pipe fitters right along on this type
of thing." Union Representative Tufte also told Blesi and Evans,
officers of Blesi-Evans Company, that the boiler at the Pure Food and
Drug site was in violation of the local agreement and certain piping
had to be removed; that "there couldn't be any more packaged boilers
as such ," citing an instance where a packaged boiler had to be "torn
apart"; and that Blesi-Evans was not the only one "being penalized
for selling packaged boilers." The packaged boiler was thereafter
installed by Loosen Company's employees without any disassembly or
delay.
The Trial Examiner found that Union Representative Seals threat-
ened, restrained, and coerced Paragon, through Kitchen, with objec-
tives proscribed by Section 8 (b) (4) (A) and (B). The Trial Examiner
reasoned that Seals' statement to Kitchen, at the jobsite, constituted a
threat that the boiler would not be installed unless the trim items were
disassembled and then reassembled by members of the Union, and that
Tufte fully supported Seals' threat in his subsequent statements to
Blesi and Evans that the trim piping would have to be removed. The
fl It is well established that a union is not responsible for the actions of a member
solely because of his membership . See N L.R.B. v Cement Masons Local No. 555, Opera-
tive Plasterers and Cement Masons International , AFL (Anderson-West}all Co ), 225
F. 2d 168, 173 (C.A. 9) ; Daugherty Company, Inc, 147 NLRB 1295. We note that the
1963 agreement does not provide that employees represented by the Union may refuse to
install packaged boilers , no union rules to that effect are in evidence , and no pattern of
such conduct by the Union has been shown . Cf. Local 1016 , United Brotherhood of Car-
penters it Joiners of America , AFL-CIO, etc. (Booher Lumber Go , Inc.), 117 NLRB 1739,
enfd. 273 F . 2d 686 ( C.A. 2) ; District Council of Painters # 48 et al. [Hamilton Mate-
rials, Inc ] ( Golding it Jones , Inc.), 144 NLRB 1523.
UNITED ASSN. PIPE FITTERS LOCAL 539, ETC. 319
facts fail to establish, however, that Seals made any direct threat to
Paragon in his conversation with Kitchen or that Tufte made any
threats in his remarks to Blesi and Evans. Nor is there any evidence
from which it can be inferred that the statements made were intended
as or amounted to threats.10 Accordingly, we find that the record does
not establish that Local Union No. 539 threatened, coerced, or re-
strained any person within the meaning of subsection (ii) of Section
8(b) (4), or that any violation of the Act occurred, in the course of
this incident.
3. The Tonka Toys incident
Lamb Plumbing &, Heating Company, a member of the Contractors
Association and a party to the 1963 agreement with Local Union No.
539, ordered from Cleaver-Brooks Company, through its area agent
Heinen Company, a packaged boiler to be installed on the Tonka Toys
building project. The boiler wss delivered about October 1, 1963.
Union Representative Tufte, on or about that date, went to the jobsite,
where he spoke to Harper, Lamb Company's supervisor, in the presence
of Lantto, its foreman and a member of the Union. Tufte stated, in
effect, that certain items would have to be removed from the boiler
before it could be installed, and asked Harper whether he had a copy
of the Union's agreement. When Harper said he did not, Tufte pointed
out the items to be removed and then reinstalled by members of Local
Union No. 539, and stated that, if this were not done, he would have
to pull his men off the j ob. Tufte also told the Heinen Company presi-
dent that certain piping on the boiler at the Tonka Toys project would
have to be removed and reattached, and that "all manufacturers of this
equipment or representatives of equipment coming in, would have to
comply with this [fabrication) clause." He later told the Lamb Com-
pany president that "this trim piping was something that we had
threshed over in regards to our contract when we negotiated it and we
were wondering as to how long it was going to be before we were going
to be entitled to do this type of work.11 The boiler was installed by
employees of Lamb Company, without any delay or disassembly.
The Trial Examiner found, in substance, that the Respondent Union,
by Tufte's remarks to Harper, threatened, coerced, and restrained
Lamb Company with an object of forcing Lamb Company to cease
handling products of, or to cease doing business with, Cleaver-Brooks,
Heinen Company, and Tonka Toys, in violation of Section 8(b) (4)
(ii) (B), and of forcing Lamb Company to enter into an agreement
prohibited by Section 8(e) in violation of Section 8(b) (4) (ii) (A).
"Electrical Workers Union Local 38, International Brotherhood of Electrical Work-
ers, AFL-CIO (Hoertz Electric Maintenance Co.), 138 NLRB 160, 162.
"As set forth in footnote 6 above , the record does not show that the Union made
any unlawful demands, during a discussion of this project, on the members of the com-
mittee which negotiated the fabrication clause.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner also found that Tufte violated Section 8(b) (4)
(i) (A) and (B) by making such remarks to Harper in the presence of
Lantto, an individual employed by Lamb Company.
We agree that Tufte's statement to Harper, in the presence of Lantto.
that certain items would have to be removed from the boiler before
it could be installed and that, if they were not removed, he would pull
his men off the job, constituted coercion of Lamb Company and induce-
ment of Lantto within the meaning of subsections (i) and (ii) of Sec-
tion 8 (b) (4), but we find, contrary to the Trial Examiner, that Tufte's
conduct was not for an object proscribed by the Act. It is clear that
Tufte's sole object in the course of this incident was to implement the
fabrication clause at the Tonka project by securing the assignment of
trim piping work to Lamb Company's own employees. As Lamb Com-
pany was a member of the Contractors Association and a signatory
to the 1963 agreement, its employees were in the Association unit rep-
resented by Local Union No. 539. It is apparent that the Union's aim,
by the conduct here in issue, was to preserve, obtain, or reacquire for
employees in this unit work which they had historically performed at
the jobsite, and to prevent the assignment of such work to employees
outside the unit. As Lamb Company ordered the boiler, it had control
over the assignment of trim piping work and was in a position to
effect the result sought by the Union. We find, therefore, that the dis-
pute was primary .12 In these circumstances, the evidence fails to
establish that the conduct of Local Union No. 539, in the course of the
Tonka Toys incident, was violative of the Act.13
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondents, United Association Pipe Fitters Local Union No. 539
and United Association Plumbers & Gasfitters Local Union No. 15,
12 Members Fanning and Brown concur in this finding because, in their view, the
fabrication clause is not concerned with the nature of the employers with whom the mem-
bers of the Respondent Association do business nor with the employment conditions of
other employers or employees. The provision guards against encroachments on the work
of attaching piping and other external fittings to boilers to be installed by the installa-
tion Contractor-Members of Respondent Association , and its purpose is plainly to regulate
the relations between such contractors and their employees and to protect a legitimate
interest of such employees by preserving their unit work. In these circumstances , neither
the fact that the clause may be viewed as an attempt to reacquire work which the em-
ployees had done at some earlier time nor the fact that its application and enforcement
incidentally affects other employers is any basis for invalidating the clause . Metropolitans
District Council of Philadelphia and Vicinity of the United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, et al. ( Charles B . Mahan, an Individual and National
Woodwork Manufacturers Association ), 149 NLRB 646 Cf. Meat and Highway Drivers,
etc., Local Union No. 710 , etc. (Wilson & Co., Inc., et al.), 143 NLRB 1221 , 1228-1230,
enforcement denied in pertinent part, 335 F . 2d 709 (C A D.C ).
13 Metropolitan District Council of Philadelphia and Vicinity of the United Brother-
hood of Carpenters and Joiners of America, AFL-CIO, et al. (Charles B . Mahin, an
individual and National Woodwork Manufacturers Association ), supra, footnote 12.
UNITED ASSN . PIPE FITTERS LOCAL 5 3 9, ETC. 321
both affiliated with the United Association of Journeymen and Appren-
tices of the Plumbing and Piping Fitting Industry of the United
States and Canada, AFL-CIO, their officers, agents, and representa-
tives, and Mechanical Contractors Association of Minneapolis, Inc.,
its contractor-members, their officers, agents, successors, and assigns,
shall :
1. Cease and desist from maintaining, giving effect to, or enforcing
the provisions of article XX, section 1, fair standards clause, of their
1963 agreements, whereby the employer agrees not to sublet or contract
out any work covered by the agreement unless the contractor to whom
the work is sublet is in agreement with a union affiliated with the
United Association.
2. Take the following affirmative action which the Board finds nec-
essary to effectuate the policies of the Act :
(a) Local Union No. 539, Local Union No. 15, and Contractors Asso-
ciation and its Member-Contractors shall post copies of the attached
notice marked "Appendix." 14 Copies of said notice, to be furnished
by the Regional Director for Region 18, shall, after being duly signed
by authorized representatives of the Respondent Union and Contrac-
tors Association, be posted by all the Respondents immediately upon
receipt thereof, in the manner set forth below, and be maintained by
each of them for 60 consecutive days thereafter.
(b) Respondent Unions shall post copies of the notice at their busi-
ness offices and meeting halls, including all places where notices to their
members are customarily posted. Respondents Contractors Associa-
tion and its Member-Contractors shall post copies of the notice at their
principal offices, places of business, and places where notices to their
employees are customarily posted. Reasonable steps shall be taken by
the Respondents to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Respondent Unions and Respondent Contractors Association
shall forthwith mail copies of said notices to the said Regional Direc-
tor, after such copies have been signed as provided above, for posting
by the other Respondents.
(d) Respondents Unions and Contractors Association shall notify
the Regional Director for Region 18, in writing, within 10 days from
the date of this Order, what steps each has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint in Case No. 18-CC-144 be
dismissed in its entirety, and the complaint in Case No. 18-CE-5 be
dismissed insofar as its alleges unfair labor practices other than as
found by the Board.
14 In the event that the Board 's Order be enforced by a decree of a United States Couit
of Appeals , the words "a Decree of the United States Court of Appeals , Enforcing an
Order" shall be substituted for the words "a Decision and Order".
206-446-6 6-vol 154-22
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER ZAGORIA took no part in the consideration of the above Deci-
sion and Order.
APPENDIX
NOTICE TO THE EMPLOYEES OF ALL MEMBERS OF MECHANICAL CONTRAC-
TORS ASSOCIATION OF MINNEAPOLIS, INC., AND ALL MEMBERS OF
UNITED ASSOCIATION PIPE FITTERS LOCAL UNION No. 539 AND UNITED
ASSOCIATION PLUMBERS & GAS FITTERS LOCAL UNION No. 15
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 maintain, give effect to, or enforce the provisions
of article XX, section I, fair standards clause, of our 1963 collec-
tive-bargaining agreement, whereby the employer agrees not to
sublet or contract out any work covered by the agreement unless
the contractor to whom the work is sublet is in agreement with a
union affiliated with the United Association.
MECHANICAL CONTRACTORS ASSOCIATION OF MINNE-
APOLIS, INC. AND ITS MEMBER-CONTRACTORS,
Dated---------------- By-------------------------------------
(Representative) (Title)
UNITED ASSOCIATION PIPE FITTERS LOCAL UNION No. 539,
AFFILIATED WITH THE UNITED ASSOCIATION OF JOUR-
NEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE
FITTING INDUSTRY OF THE UNITED STATES AND CANADA,
AFL-CIO,
Dated---------------- By-------------------------------------
(Representative ) ( Title)
UNITED ASSOCIATION PLUMBERS & GASFITTERS LOCAL
UNION No. 15, AFFILIATED WITH THE UNITED ASSOCI-
ATION OF JOURNEYMEN AND APPRENTICES OF THE
PLUMBING AND PIPE FITTING INDUSTRY OF THE
UNITED STATES AND CANADA, AFL-CIO,
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 anyone 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.
UNITED ASSN. PIPE FITTERS LOCAL 539, ETC. 323
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Pursuant to charges, which were duly filed, and served, the General Counsel of
the National Labor Relations Board, through the Regional Director for Region 18,
issued a complaint in Case No. 18-CE-5, 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 complaint was duly issued in
Case No. 18-CC-144, alleging that the Respondents have engaged in and are
engaging in unfair labor practices within the meaning of Section 8(b) (4) (i), (ii)
(A) and (B) of the Act. On January 15, 1963, the Regional Director issued an
order consolidating the cases. The answers of the Respondents admit certain allega-
tions of the complaints, but deny the commission of any unfair labor practices.
Pursuant to notice, a hearing was held before Trial Examiner Reeves R. Hilton
at Minneapolis, Minnesota, on February 7 and 10, 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,
1964, I received briefs from counsel, which I have considered fully.
The Charging Party, American Boiler Manufacturers Association is herein referred
to as the American Association.
Respondent United Association Pipe Fitters Local Union No. 539, and Respond-
ent United Association Plumbers & Gasfitters Local No. 15, both affiliated with the
above-described International Union, are referred to as Local 539 and Local 15,
respectively, or as the Respondent Unions.
Respondent Mechanical Contractors Association of Minneapolis, Inc., is referred
to as the Contractors Association.
Prefatory Statement
The hearing in this case followed immediately the hearing held in Cases Nos.
18-CE-4 and 6 and 18-CC-143, United Association of Pipe Fitters, Local Union
No. 455, et al. (American Boiler Manufacturers Association), [154 NLRB 285],
herein referred to as the St. Paul case. The same counsel appeared on behalf of
their respective parties in both cases, with the exception that the St. Paul and Minne-
apolis Contractors Associations were represented by different counsel. Since both
the cases follow the same general pattern, present the same basic legal issues, and
involve the same charging party and boiler manufacturers, counsel stipulated that
certain evidence adduced in the St. Paul case should become part of the record in
this case.
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
Pursuant to various stipulations of the parties and as found in the St. Paul case:
The American Association is a trade association representing, among others, 36
companies who are engaged in the manufacture, fabrication, and sale of steam boilers
and firing equipment.
Orr & Sembower, Inc., and Cleaver-Brooks Company are members of American
Association and are engaged in the manufacture, fabrication, and sale of packaged
boilers.
Edward G. Reimer, director of personnel and labor relations, testified that Bros,
Incorporated, is a Minnesota corporation and maintains its office and plant in
Minneapolis, Minnesota, where it is engaged in the manufacture of boilers, road
building machinery, and general steel fabrication. In the 12-month period ending
November 6, 1963, the Company sold and delivered products valued in excess of
$100,000 to customers outside the State of Minnesota, and in the same period its
out-of-State purchases for goods and materials exceeded $100,000.
Respondent Contractors Association is a Minnesota corporation, having its prin-
cipal office in Minneapolis, Minnesota, and is composed of some 72 contractors,
herein named as Respondent Member-Contractors, who are located in the Minne-
apolis area and are engaged in the business of installing plumbing, heating, and
related mechanical equipment. 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 representatives of the
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees of Respondent Member-Contractors The complaint alleges that Con-
tractors Association and each of its members purchased materials and equipment in
their respective business operations from sources outside the State of Minnesota in
amounts valued in excess of $50,000. The answer generally denies the jurisdictional
allegations.
Counsel stipulated that Lamb Plumbing & Heating Company and Bjorkman Bros.
Company are members of Contractors Association , ) that they are mechanical con-
tractors , that each annually purchases goods and materials valued in excess of $50,000
from outside the State of Minnesota , and that each is engaged in commerce within
the meaning of the Act.
Counsel stipulated that Paragon Heating & Plumbing Company , a corporation,
maintains its principal office and place of business at Kansas City, Missouri, where
it is engaged in the business of mechanical contractor engaged in the installation of
heating, plumbing , and related mechanical equipment , that it annually purchases
goods and materials valued in excess of $100,000 from outside the State of Missouri,
and that it is engaged in commerce within the meaning of the Act.
Counsel stipulated that, as alleged in the complaints , Burniece 's, Inc. , a corpora-
tion, maintaining its office and place of business at Minneapolis , where it is engaged
in business as a mechanical contractor , that it annually purchases goods and mate-
rials valued in excess of $50,000 from outside the State of Minnesota , and that it is
engaged in commerce within the meaning of the Act.
Counsel stipulated that if the president of Midwest Oil Company testified, he
would vertify the data set forth in the General Counsel's commerce questionnaire,
which discloses that the Company is a corporation , with offices in Minneapolis,
Minnesota , where it is engaged in the sale and distribution of oils , gas, and greases,
and in the year 1962 its sales to out-of-State customers exceeded $ 1 million, and its
out-of-State purchases from March 1962 to March 1963 exceeded $ 1 million.
Likewise , counsel stipulated that if the vice president of Tonka Toys , Incorporated
testified , he would verify the data set forth in his commerce questionnaire, which
shows that the Company is engaged in the manufacture and sale of toys at Mound,
Minnesota , and in 1963 its out-of -State sales and purchases , respectively , exceeded
$1 million.
I find Contractors Association , its Member -Contractors and each of the companies
described above are employers within the meaning of Section 2 ( 2) of the Act and
are engaged in commerce within the meaning of Section 2 ( 6) and ( 7) of the Act,
and are persons within the meaning of Section 8(b)(4)(ii ) thereof.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 539 and Local 15 are labor organizations as defined in Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The pleadings
The complaint in Case No . 18-CE-5 alleges , in substance , that about July 20,
1963, the Respondents entered into a collective -bargaining agreement containing a
fabrication clause covering the installation of boilers at the jobsite , which they have
interpreted , construed , and applied in such a manner as to constitute a violation of
Section 8 (e) of the Act . The complaint further alleges that another clause in the
agreement , whereby the employer agrees not to sublet or contract out any work
covered by the agreement unless the subcontractor is in agreement with an affiliate
with the United Association , violates Section 8(e) of the Act.
The Respondents contend the foregoing clauses, which are not set forth fully in
the complaint , are not proscribed by Section 8(e). The Unions further assert they
are not involved in any present dispute concerning the fabrication clause, nor is it
involved in any factual situation regarding the subcontracting clause.
The complaint in Case No . 18-CC-144 alleges , in brief, that commencing October
1963, Local 539, through its agents , has induced and encouraged individuals employed
by mechanical contractors to engage in a strike, or a refusal in the course of their
employment to use, or otherwise handle or work on any goods , or to perform any
services for their employer, and other persons engaged in commerce , an object
1 The name of Lamb Pumbing & Heating Company was inadvertently omitted from
the list of Respondent member - Contractors in the complaint.
UNITED ASSN. PIPE FITTERS LOCAL 539, ETC. 325
thereof being to force or require their employers to cease using, handling, or dealing
in the products of, or doing business with other persons, including the boiler manu-
facturers, and their representatives, and to force or require their employers and other
persons to enter into agreements prohibited by Section 8(e) of the Act, in violation
of Section 8(b) (4) (1) (A) and (B) thereof.
The complaint also alleges that Local 539, through its agents, threatened, coerced,
and restrained certain mechanical contractors and other persons, an object thereof,
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 repre-
sentatives, and to force or require said contractors and other persons to enter into
agreements prohibited by Section 8(e), in violation of Section 8(b) (4) (ii) (A) and
(B) of the Act.
B. Background
Counsel stipulated that Max Funk, manager of American Association, would
testify the same as he did in the St. Paul case.-
Counsel also stipulated that Fred Klein, president of Orr & Sembower, Inc., and
Harold F. Holtz, vice president and general manager of Cleaver-Brooks Company,
would testify to the same effect as they did in the St. Paul case, insofar as the manu-
facture, fabrication, sale, and use of packaged boilers by their respective companies
is concerned.
Counsel further stipulated that if a gas and heating inspector of the city of Minne-
apolis testified, he would testify generally as to the Minneapolis area as Theodore
Schmitz testified regarding the St. Paul area
Harold C. Tufte, business representative for Local 539, testified the jurisdiction
of the local embraces about 7 counties, herein referred to as the Minneapolis area,
and has some 700 members who are qualified, in varying numbers, as steamfitters,
gasfitters and oil burner mechanics Tufte further stated that packaged boilers first
came into the area around 1951 and the number gradually increased until about 1957
they comprised about 10 percent of all boiler installations, and in 1963 they totaled
from 60 to 70 percent of all boiler installations.
The history of packaged boilers, including the description, development, fabrica-
tion, sale, and use thereof, is generally the same as set forth and found in the
St. Paul case.
C. The agreement between Local 539 and Contractors Association
Roy West, executive vice president of Contractors Association, testified contract
negotiations began about March 1, 1963, that oral agreement was reached about
May 9, effective as of May 13, and the parties signed an agreement about July 15.
Tufte said contract negotiations began in March, and, at first, were conducted on
a joint basis with representatives of the St. Paul and Minneapolis Contractors Asso-
ciations and the four local unions participating therein. However, the parties, at
some unspecified time, discontinued that procedure, and theieafter separate nego-
tiations were held by the respective representatives of the two associations and the
locals. Tufte said Local 539 and Local 15 negotiated jointly with Minneapolis Con-
tractors Association. Tufte stated the parties reached verbal agreement about May 9,
that the final contract language was agreed upon around August 1, at which time
agreement was sent to the printers and the agreement signed about the middle of
September.
Concerning the bargaining procedures, West stated Contractors Association nego-
tiated only with Local 539, and that Local 15 negotiated with Minneapolis Association
of Plumbing Contractors, a separate association, which is not a party to these pro-
ceedings. Tufte testified Local 539 and Local 15 signed identical agreements with
Contractors Association. I do not consider West's statements as warranting a finding
that separate associations were involved in the final agreement. The complaint in
Case No 18-CE-5 alleges the Respondent Unions and Contractors Association
executed the agreements, which the Respondent Unions admit in their answer. The
answer of Contractois Association not only fails to deny this allegation, but tacitly
admits its correctness. In any event Contractors Association makes no mention of
this point in its brief.
2 The stipulation reserved to union counsel the right to question the materiality and
relevancy of certain portions of Funk's testimony and included my rulings on objections
and motion made by counsel in the course of his testimony
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The contract between Local 539 and Contractors Association, herein referred to
as the agreement, is effective from May 13, 1963, to April 30, 1966, and contains
the following clauses, which are the subjects of the present controversy:
Article XIX, Section 2.
As a primary working condition, it is agreed that the following items and
work shall be fabricated on the job site or in the shop of the employer signatory
hereto by employees covered by this agreement:
A. Piping that is not attached at the factory, is not lined or pickled, or
is not available as a standard fitting or can be bent or formed with port-
able equipment.
B. All piping beyond the flanges or fittings supplied by the manufacturer
of the gas and oil burners on boilers; and boiler trim piping.
C. All cutting, threading, welding and fabricating of pipe formations,
such as mains, branches, stacks or risers for plumbing and piping systems
consisting of materials which convey water, steam, waste, air vent, gas
and oil.
Article XX, Section 1.
The Employer agrees not to sublet or contract out any work covered herein
unless the contractor to whom the work is sublet is in agreement with a Union
affiliated with the United Association.
The fabrication clause (section 2D) provides that authority to amend the list of
fabricated items is vested in the joint labor board, a committee composed of six
members, elected or appointed in equal numbers by Contractors Association and
Local 539. The joint labor board is also empowered (article XXII, section 2), to
construe and apply the terms of the agreement, to investigate, hear, and determine
any disputes arising under the agreement and to award damages for violation of
the terms thereof.
Tufte testified that Local 539 requested a fabrication clause during the contract
negotiations in 1959 and 1961, and although these negotiations resulted in agreements
between the parties, Contractors Association refused to accede to its demands for a
fabrication clause.
Tufte further testified that approximately 100 mechanical contractors in the area,
who are not members of Contractors Association, have signed the 1963 agreement.
D. The application and enforcement of the agreement
1. The Tonka Toys project
Lawrence Heinen, president of the Heinen Company, manufacturer's representa-
tive for Cleaver-Brooks Company for about 8 years, stated that in the latter part of
June 1963, Heinen received an order from Lamb Plumbing & Heating Company for
a 400-horsepower packaged boiler to be installed at the Tonka Toys Building. The
boiler was delivered to the jobsite about October 1.
Ivan Harper, employed by the Lamb Company as engineer, expeditor, and super-
visor said he was responsible for construction of the hot water heating system at
the Tonka Toys project which included the installation of a packaged boiler. The
boiler was delivered around October 1, and at that time Harper met Tufte at the
jobsite. Tufte visited the job to discuss the ratio of apprentices to journeymen
employed on the job and Lamb's failure to pay full wages to the foreman. Appar-
ently, these matters were adjusted in a satisfactory manner. Tufte then told Harper,
in the presence of Foreman Leo Lantto, a member of Local 539, that certain items
would have to be removed from the boiler before it could be installed. Tufte asked
if Harper had a copy of the Local's agreement and when Harper said he did not,
Tufte suggested they go down to the boilerroom and he would show him the items
to be removed. The three of them thereupon went to the boilerroom where Tufte
stated the gas train, the water column, and fuel oil preheater had to be removed
and then reinstalled by Local 539 men who were qualified to do the work. Tufte
declared "that if this equipment were not removed, that he would have to pull his
men off the job." Harper told Tufte he would have to discuss the matter with his
superior. Seemingly, that ended the conversation. While none of Lamb's employees
were working in the boilerroom, or on the boiler, Harper instructed the foreman
to do nothing in this area until the matter had been straightened out. Harper then
telephoned Russell P. Hayes, president of the Lamb Company, to report his discus-
sion with Tufte. Hayes told Harpei to do nothing until he contacted other parties.
Hayes, who was also vice president of Contractors Association, did not testify at
UNITED ASSN. PIPE FITTERS LOCAL 539, ETC. 327
the hearing. However, West testified that sometime in October, Hayes telephoned
him to report there was some controversy regarding the installation of the boiler
at Tonka Toys in that Tufte had stated certain items on the boiler had to be removed
and reassembled at the jobsite. West did not give the conclusion of his conversation
with Hayes, but as a result thereof he made arrangements for a meeting with Tufte
and two members of the negotiating committee, Cerne or Cerny and Kelly, which
was held in West's office sometime within the following week. West professed a
poor recollection of occurrences at the meeting and was evasive and elusive regard-
ing the subject matters discussed as well as the discussions thereon. However, he
admitted the group discussed the Tonka Toys job and, generally, "the interpretation
of the fabrication clause." From West's reluctant account of the meeting it is
evident that Tufte took the position that some items had to be removed from the
boiler involved. West also admitted that the group talked about the burner, the
control train, the heat exchanger, and the water column but they were in disagree-
ment as to items that should not be on the boiler. In any event the meeting ended
inconclusively and without any final decision on the Tonka Toys job. West then
advised Hayes that the meeting had been held but no definite decision had been
reached on this project.
Heinen, at Tufte's request, met with Tufte and A. L. Rudell, secretary-treasurer
of Local 539, at his office about October 23. Bernie Morton, an employee of Heinen
was also present. Tufte opened the meeting by stating the Company had failed to
furnish a truck for Limberg (one of its two servicemen) on a service call and per-
mitted Limberg to use his own tools on the job. Seemingly, these matters were satis-
factorily settled. At that point, Heinen then signed a copy of the 1963 agreement,
covering the two servicemen which he had received sometime prior to the meeting,
and handed it to Tufte. Tufte then told Heinen that the piping on the boiler at the
Tonka Toys job did not conform to the fabrication clause and that the trim items
would have to be taken off, repiped, and put back on the boiler. Heinen asked who
was supposed to do this work and Tufte replied Heinen's employees could do it.
When Heinen inquired who would pay for the work Tufte made no response. Heinen
complained the Company was being treated unfairly and Tufte assured him that
"all manufacturers of this equipment or representatives of equipment coming in,
would have to comply with this [fabrication] clause."
Tufte testified he went to the jobsite where he spoke to Harper about the employ-
ment of apprentices and the foreman's wages and Harper promised to take up these
matters with Lamb officials, which was satisfactory to Tufte. Tufte then asked
Harper to accompany him to the boilerroom for the purpose of checking the boiler
to see that it conformed with the Local's agreement with Lamb. They then went
to the boilerroom where Tufte "referred to him [Harper] in regards to the oil train,
the gas train, and the trim piping on the packaged boiler at that time. And I [Tufte]
informed him that we were trying to preserve the work of trim piping in this area,
which actually belonged to the pipe fitters in this jurisdiction." Harper said he
would take it up with the boss and they parted.
Sometime later, Hayes called Tufte to find out the "difficulty" on the Tonka Toys
project. Tufte said the local was only trying to protect its work rights, that "this
trim piping was something that we had threshed over in regards to our contract
when we negotiated it" and he wondered when the local was going to perform this
type of work. Hayes promised to look into the matter and that ended the con-
versation. Tufte had no further contact with Hayes.
Tufte testified substantially the same as Heinen with respect to their meeting of
October, insofar as the discussion and disposition of the two complaints or grievances
is concerned. He also stated that while Morton was present at the beginning of the
meeting, he left before Tufte and Heinen discussed the agreement. Tufte further
stated that after Heinen signed the 1963 agreement, he asked Heinen if he had read
the new fabrication clause contained therein. Heinen could not recall whether he
had read it, but he thought it was similar to the clauses in the 1959 and 1961 con-
tracts. As Tufte recalled, Heinen mentioned the packaged boiler at the Tonka Toys
job and asked if the fabrication clause applied to packaged boilers being delivered
at the present time. Tufte replied, "Evidently, that is part of the work that we are
traditionally asked for and want to do on job site." Apparently the conversation
ended on that note.
Tufte was not questioned concerning the meeting with Cerne and Kelly which was
held in West's office in the early part of October.
It is undisputed that the boiler was installed by employees of Lamb Company,
without any delay, stoppage, or the removal of any items or attachments from the
boiler.
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Credibility Findings
Of course, there is no dispute regarding Heinen 's sale of the packaged boiler to
Lamb and its delivery at the Tonka Toys building about October 1. It is also clear
that Tufte went to the jobsite, around that date, where he met Harper and, after
disposing of two complaints, brought up the subject of the packaged boiler. As
appears above, the testimony of Harper and Tufte is conflicting insofar as the
discussion of the boiler is concerned. Harper testified unequivocally that Tufte, in
the presence of Foreman Lantto, told him that certain items on the boiler had to be
removed before it could be installed. Manifestly, Tufte's demand was based on
the terms of the fabrication clause, for when he asked Harper if he had a copy of
the agreement, and Harper replied, no, Tufte requested that they go to the boiler-
room and he would show him the items to be removed. There, Tufte pointed out
specific items to be disassembled and reinstalled and warned, "that if this equipment
were not removed, that he would have to pull his men off the job " Harper prom-
ised to discuss the matter with his superior and instructed the foreman to do nothing
in the boilerroom until further notice. Tufte's account of the meeting was that
he asked Harper to the boilerroom to check the boiler for conformance with the
fabrication clause and "referred" Harper to specific items thereon and simply com-
mented Local 539 was "trying to preserve the work of trim piping," which belonged
to the pipefitters.
I am firmly convinced from my observation of Tufte as a witness in this case that
he did not testify in a frank, forthright manner in respect to the Tonka Toys project,
as well as the other incidents in which he was involved. Thus, Tufte attempted to
brush aside Harper's clear, direct testimony outlining Tufte's demands in respect to
the Tonka Toys boiler, and packaged boilers generally, with vague, flimsy, and some-
what garbled explanations to the effect that he did nothing more than call Harper's
attention to the fabrication clause in the agreement. As appears below, the same
theme was adopted by Tufte to explain his position on the installation of packaged
boilers at other projects and, as in the Tonka Toys incident, his testimony is in con-
flict with the testimony of many other witnesses. Therefore, considering Tufte's
testimony in its entirety, I find he was not a credible witness and I do not accept his
testimony, except where it is consistent with that of other witnesses.
In line with the foregoing finding, I accept the testimony of Harper and find that
Tufte made the demands and uttered the threats attributed to him by Harper, all
in the presence of Foreman Lantto Certainly, it cannot be said that Harper's testi-
mony was motivated by union animus for he held a responsible position with Lamb,
which is a member of Contractors Association and a party to the agreement, and he
worked directly under Hayes who was vice president of Contractors Association.
Following the above discussion, Harper reported the matter to Hayes, who, in
turn, notified West of the dispute over the installation of the boiler at Tonka Toys.
The next week, West, Tufte, Cerne, and Kelly held a meeting in West's office for
the purpose of considering the dispute. Although West claimed a dim recollection
of the meeting and responded to questions with evasive answers, he did admit the
group discussed "the interpretation of the fabrication clause" generally and, in par-
ticular, its application to the Tonka Toys project. West further conceded that the
parties discussed the burner, the control train, the heat exchanger, and the water
column, but they could not agree "On items that should be on the boiler, and items
that shouldn't be" on the boiler. In this situation, the meeting ended without any
decision being reached on the Tonka Toys job, and West so notified Hayes West's
testimony makes it clear that the parties were in complete accord in their interpreta-
tion of the fabrication clause that it prohibited the installation of the boiler in
packaged form as delivered at the jobsite. Actually, the discussion at this meeting
centered on which items had to be removed from the packaged boiler prior to install-
ation and the parties were unable to reach agreement on that point. Accordingly,
I find that representatives of Local 539 and Contractors Association interpreted, con-
strued, and applied the fabrication clause as requiring the removal of at least some
items from the packaged boiler before it could be installed.
It is undisputed Heinen met with Tufte and Rudell about October 23. Again,
there is a variance in the testimony of Heinen and Tufte as to their discussion con-
cerning the Tonka Toys project. In brief, Heinen related that Tufte told him the
trim items would have to be disassembled, then reassembled and Heinen's service-
men could perform this work. When Heinen complained this was unfair Tufte
assured him all packaged boilers would have to comply with the fabrication clause.
Tufte claimed it was Heinen who asked if the fabrication clause applied to packaged
boilers and he simply stated, "Evidently, that is part of the work that we are tradi-
tionally asking for and want to do on job site." Heinen's testimony is plainly con-
sistent with that of Harper, and West's testimony regarding Tufte's earlier demand
UNITED ASSN. PIPE FITTERS LOCAL 539, ETC. 329
for removal of certain items from the boiler, which Tufte did not question, lends
further support to the accuracy of Heinen's account of his conversation with Tufte.
For the reasons stated above, I reject Tufte's version of the meeting and accept
Heinen's testimony, including his assertion that employee Morton was present at
this meeting.
2. The Midwest Oil Company project
Donald L. Nygren, a salesman employed by Bros, Incorporated, testified that
about August 2, 1963, he sold a completely packaged boiler, 800 horsepower, to Mid-
west Oil Company, Bros engaged Bjorkman Bros. Co., mechanical contractors, and
a member of Contractors Association, to install the boiler at the Midwest building.
The boiler, in packaged form as ordered, was delivered at the jobsite on November 11.
Bros has no contractual relationship with Local 539 or Local 15, or any other
affiliate of the United Association. However, it does have agreements with United
Electrical, Radio and Machine Workers and the Boiiermakeis covering its factory
employees in Minneapolis.
Carl Brask, employed by Bjorkman Bros. as an estimator and expeditor, said he
worked on the estimates and acted as office supervisor for the Midwest project while
Patrick Doyle was foreman, or working foreman, at the jobsite. Both Brask and
Doyle are members of Local 539. Brask said he and Doyle met Tufte at the jobsite
about October 9, and Tufte said that, in accordance with the agreement, the trim
"piping was to be done in the field.' Sometime after this conversation, Brask tele-
phoned Nygren and informed him of Tufte's position. Brask could not remember
whether he spoke to Nygren at the jobsite regarding this matter.
Doyle's account of the conversation was that Tufte, after some reference to the
Boiler, showed them article XIX, section 2(b) of the fabrication clause and pointed
out "our obligations" under that clause. Doyle could not recall being present at any
conversation between Brask and Nygren in which this subject was mentioned. How-
ever, Doyle admitted that within the next few days, he met Nygren at the job and,
knowing the boiler had not yet been completed, told Nygren, "Be sure the trim isn't
on the boiler when you send it over here ... it will save you a lot of trouble if it
comes in like it should."
Nygren testified he met Brask and Doyle at the jobsite on October 9, at which
time Brask told him, "Mr. Tufte had been there and that if the boiler came out piped
up with the trim on it, that the job would be stopped." Nygren made no reply and,
apparently, that ended the meeting. Upon returning to his office, Nygren informed
Kenneth Bros, vice president of Bros, of his meeting with Brask.
On October 11 Nygren met Doyle at the jobsite and Doyle repeated Brask's earlier
warning concerning the boiler and added that he had instructions to contact Tufte
when the boiler was delivered on the job. Nygren made no response to Doyle but
reported the conversation to Kenneth Bros.
Nygren testified that on October 12 he received a telephone call from a person,
who, after identifying himself as "Mr. Tufte, with the steam fitters union," stated
"that if the boiler was delivered to the job piped up, the trim, that he would stop
the job."
Tufte stated that sometime in October he went to the Midwest job and asked
Brask and Doyle what kind of work they were doing and they replied they were
going to install a boiler. Tufte then handed Brask and Doyle a copy of the agree-
ment and told them it contained a new fabrication clause which they should check,
if they had not already done so. That ended the conversation Tufte denied that
he knew Nygren or that he had ever had any conversation with him, personally or
by telephone, in regard to the Midwest job.
Nygren admitted the boiler was installed as delivered, by employees of Bjorkman,
without any delay or work stoppage.
Credibility Findings
There is no question that Tufte, around October 9, talked to Brask and Doyle
about the boiler installation at the Midwest building. As related by Tufte, he merely
handed Brask and Doyle a copy of the agreement and told them to check the new
fabrication clause, if they had not already done so. Brask and Doyle testified to
substantially the same effect, except that Brask added Tufte specifically stated that
the trim piping, under the fabrication clause, was to be performed in the field.
It is also clear that Brask advised Nygren of Tufte's position on the installation of
the boiler. Likewise, Doyle admitted that a few days after Tufte's visit be told
Nygren to "Be sure the trim isn't on the boiler when you send it over here ... it will
save you a lot of trouble if it comes in like it should It may be true, of course,
Doyle was not an official of Local 539 and was not "ordered" by Tufte to make any
330 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
such statement on its behalf. However, Doyle was Bjorkman's foreman on the job
and responsible for the installation work, hence it cannot be said that he had no
interest in the project. I am also convinced Doyle's warning to Nygren was prompted
by Tufte's earlier conversation, therefore I accept his testimony as evidence support-
ing the manner in which Tufte interpreted and construed the fabrication clause.
Nygren's testimony that Tufte called him on October 12 and warned Nygren he
would "stop the job" if the boiler was delivered in packaged form was emphatically
denied by Tufte. Nygren's testimony is consistent with that of Brask and Doyle and
in line with the testimony of witnesses covering other projects. Considering Nygren's
demeanor on the stand, I am satisfied Nygren did not present a fabricated story, so I
accept and credit his testimony and find the conversation occurred in the manner
described by him.
3. The Pure Food and Drug building project
Earl Kitchen, an employee of Paragon Heating & Plumbing Company, of Kansas
City, Missouri, and job superintendent of the project in question, stated that prior to
August 1963, Paragon was engaged as contractor or subcontractor by Callagarie-Kahn
Company, of Kansas City, Missouri, owner of the building, to perform certain plumb-
ing, heating, and related work including the installation of a boiler In August,
Paragon purchased a 250-horsepower, high pressure, packaged boiler from Orr &
Sembower, the order being placed with Blesi-Evans, its local representative. The
boiler was delivered, as ordered, to the jobsite on or about October 31. Neither
Paragon nor Blesi-Evans has an agreement with Local 539.
Kitchen said that Paragon originally had intended to do all the mechanical work
but since it was an out-of-State firm and did not have the required State and local
licenses, it was necessary to subcontract some of this work to local contractors.
Accordingly, Paragon, sometime prior to the date the boiler was delivered, engaged
Loosen Plumbing & Heating Company, a mechanical contractor and member of
Contractors Association, to perform the hookup of the steampiping and engaged
Northwest Heating Company of St. Paul, to do the oil and gas piping work on the
boiler.
Kitchen further stated that the same day the boiler was delivered, or the next day,
and when they were ready to commence the installation work, Cecil Seals came to the
job and introduced himself as business representative for Local 539. Norris Peterson,
foreman for Loosen, was in the area at the time but Kitchen was not certain whether
he was actually present when Seals talked to him. Seals told Kitchen the boiler,
which was standing on the ramp "was of the design and so constructed that it did not
fall in the category as being of the type that went into the thinking of the contract
between the fitters and the plumbing contractors " Kitchen said the Company had
installed this type of boiler in various other places without any difficulty. Seals
remarked that Paragon "would probably be taking the piping off and replacing it with
his [Local 539] members." When Kitchen repeated that Paragon had been installing
this type of boiler at other projects Seals replied, "the boiler manufacturers had been
stealing the work of the pipefitters right along on this type of thing." Apparently,
that ended the conversation. Kitchen reported the foregoing conversation to Melvin
Evans, a partner in Blesi-Evans.
Gordon Blesi, president of Blesi-Evans, related that in the latter part of October or
early November, he received a telephone call from a person who identified himself
as Tufte, a representative of the Pipe Fitters Union. According to Blesi, Tufte indi-
cated that the boiler at the Pure Food building included the trim, gas trains, and gas
and oil valves, which was in violation of the local's agreement and that these items
had to be removed Blesi told Tufte the boiler was delivered as ordered, and that
his company had nothing to do with installation of the boiler or removal of any items
therefrom. The conversation concluded with Tufte stating he would contact Blesi
the following Tuesday regarding a meeting for further discussion of the matter.
However, Tufte did not contact Blesi and the meeting never materialized. Blesi stated
that the day after the above conversation Evans went to Tufte's office and obtained a
copy of the local's agreement.
Evans testified that on November 1, as a result of information received from Blesi,
he went to Tufte's office for the purpose of getting a copy of the agreement between
Local 539 and Contractors Association. In the course of their meeting Tufte
informed Evans that if his company attempted to do any startup of boilers or work
on the controls, it would have to sign a Union agreement.3 Tufte, referring to the
3 The firm employed one serviceman whose duties consisted of starting up and servic-
ing boilers. It appears that Tufte claimed this man was performing work within the
jurisdiction of Local 539 , and while there may have been some talk on that point, the
Company never signed an agreement with Local 539.
UNITED ASSN. PIPE FITTERS LOCAL 539, ETC. 331
boiler at the Pure Food job, stated that "all the trim piping," which he itemized, "and
all other piping that was done by the factory, except the gas and oil trains," had to
be removed from the boiler. Tufte added that "there couldn't be any more packaged
boilers as such. You would have to have the piping taken off from that." Tufte also
cited an instance where a packaged boiler had to be "torn apart" and declared Blesi-
Evans was not the only one "being penalized for selling packaged boilers." Evans
did not discuss the situation with Tufte and the meeting ended.
Seals testified he first visited the jobsite in July, where he met Kitchen and generally
discussed the employment situation with him. On August 20, Seals again went to the
building and Kitchen informed him that Loosen had been engaged as subcontractor to
perform some of the work and inquired if Seals had any objection to this arrangement.
Seals answered no, that Loosen was a "fair contractor." Thereafter, and up to
November 1, Seals made three or four trips to the project and most of his conversa-
tions with Kitchen dealt with work jurisdiction or the division of work between the
steamfitters and the plumbers.
On November 1, Seals went to the jobsite and when Kitchen asked if he had seen
the boiler, Seals said he had not. Kitchen then took Seals to the ramp where the
boiler was standing and Kitchen, in the presence of Peterson and Harry Ivers, Loosen
employees, asked Seals, "What comes off?" Seals examined the boiler and remarked
the safety valve, because it was broken. Kitchen further inquired, "Well, what is
supposed to be on, and what is not supposed to be on" the boiler. Seals testified,
"Then I pointed out the trim piping that should have not been on there, and he
[Kitchen] said. What do you suggest?" Seals answered, "I don't make suggestions "
That ended the conversation. Seals denied that he told Kitchen the trim piping would
have to be disassembled, or that the men would walk off the job if it was not removed.
Seals had no further meetings or discussions with Kitchen regarding the boiler.
Neither Peterson nor Ivers testified at the hearing.
Tufte stated he had information that one of the Blesi-Evans employees was doing
work that belonged to Local 539, so in the latter part of October he telephoned Blesi
and asked if any of his employees performed startup and service work on boilers.
Blesi said he had one employee doing that type of work. Tufte then advised Blesi
that, under the terms of its agreement, this type of work was within the jurisdiction
of Local 539, and requested Blesi to come to his office to discuss the matter. Blesi
stated he or his partner, Evans, would be at Tufte's office the following morning and
the conversation ended on that note. Tufte denied that he mentioned or referred to
packaged boilers, or the boiler at the Pure Food building, in the course of the above
conversation
The next morning Evans came to Tufte's office where they discussed the serviceman
and Tufte gave Evans a copy of the Local 539 agreement. The meeting concluded,
according to Tufte, with tentative arrangements for a meeting to be held the following
week to discuss the execution of an agreement and bringing the serviceman into Local
539. However, the meeting was never held. Tufte denied that he discussed packaged
boilers, or the Pure Food boiler, with Evans.
Kitchen admitted the boiler was installed without any disassembly of external piping
or attachments and without delay or work stoppage.
Burniece's Involvement in the Pure Food and Drug Project
Blesi testified he contacted Stuart Burniece to inquire "if he would be interested in
doing installation work for the contractor at the Pure Food building, and if he was
to contact the person that was responsible for the job at the Pure Food Building."
When asked if Burniece replied to his inquiry Blesi answered, "To my knowledge, he
did." While Blesi did not fix an approximate date, it appears the conversation took
place shortly after the date Blesi-Evans sold the boiler to Paragon, which was some-
time in August. Blesi further stated that following his telephone conversation with
Tufte, about October 31, he called Burniece to inform him that Tufte had indicated
"there were requirements on equipment that was on this boiler that did not meet the
standards in Minneapolis," so Burniece should contact Tufte.
Kitchen related that following his discussion with Seals at the jobsite, around
November 1, which he reported to Evans, Burniece came to the project and, after
looking over the job, he told Kitchen "the only way he could do it was on a cost plus
basis." Kitchen said he subsequently issued a "purchase order" to Burniece for this
portion of the work, which he mailed to him. Kitchen heard nothing further from
Burniece and the work was not performed by his firm. Kitchen then subcontracted
the work to Northwest Heating Company.
Evans said he called Burniece on November 4 to find out why his company had not
taken the contract to do the gas and oil piping for Paragon. Burniece replied that
he had talked to responsible persons with the gas company, the city inspection
department, and Seals and he "gathered it would be best if he did not take the job."
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stuart Burniece testified he is vice president of Burniece's Inc., which is engaged
in the business of heating, ventilation, and air conditioning in Minneapolis?
Burniece testified that in August, Blesi called him about installing a packaged boiler,
he could not remember whether the work was to be done at the Pure Food building,
and he told Blesi that he would do the job on a time-and-material basis. Burniece
heard nothing further of the job until about 2 months later when Kitchen called him
and Burniece stated he would consider doing the work on a time-and-material basis.
Burniece then went to the jobsite where he told Kitchen he should have a purchase
order and, after he made a few decisions, he "would let him [Kitchen] know and
try to have men on the job as soon as I could." Kitchen then sent Burniece a "speed
letter" authorizing him to proceed with the work on a time-and-material basis. Seem-
ingly, the foregoing conversation took place about Friday, October 25. Burmece
further stated that around Monday or Tuesday of the following week, October 28 and
29, after receiving the "speed letter," he talked to officials of the gas company, the
city inspection department, Seals, and Blesi.
Concerning the Seals conversation, Burniece said he called Seals to inform him
that he had been asked to do the gas and oil piping at the Pure Food building and
inquired "is there anything at all that I should know about this job." Seals stated
there was nothing special about the job Burniece then asked if any of the controls
on the boiler had to be removed and Seals answered no. Burniece said there was no
mention or discussion of the fabrication clause in the course of their conversation.
Burniece also talked to Blesi on several occasions to obtain data on the boiler and
during one of these conversations Blesi mentioned he had talked with Tufte. How-
ever, Blesi did not suggest that Burniece get in touch with Tufte Burmece denied
that he reported the above telephone conversation with Seals to Evans
Burniece testified that after his talks with officials of the gas company and the city
inspection department he decided the Pure Food job was too big for him to handle.
Burniece thereupon telephoned Kitchen five or six times and being unable to get him,
he went to the jobsite "on a Friday afternoon," apparently, November 1, to advise h;m
of his decision not to take the job. After waiting about an hour and being unable
to meet with, or find, Kitchen, Burniece left a note for him stating in effect, "Don't
plan on me on this job."
Credibility Findings
The record shows that Paragon, as contractor or subcontractor, purchased an Orr
& Sembower boiler from Blesi-Evans in early August, which was delivered at the job-
site about October 31. Paragon, for the reasons stated above, engaged Loosen Plumb-
ing and Northwest Heating to perform the overall task of installing the boiler.
Both Kitchen and Seals agreed that they discussed the boiler at the jobsite about
November 1, but they were in serious disagreement as to the manner in which the
discussion arose as well as the discussion itself. Again, while there is some dis-
crepency in their testimony, it is reasonable to infer that Foreman Peterson and
employee Ivers were present during the Kitchen-Seals conversation.
At this point it is appropriate to mention that Kitchen claimed this was the first
time he met Seals, while Seals claimed he had met with Kitchen on or about four
previous occasions and generally discussed the employment situation. While nothing
of importance took rilace on these occasions, I am unable to find, on the basis of Seals'
bare assertion, that Kitchen and Seals held any meetings prior to or about November 1.
The testimony of Kitchen is that Seals, after inspecting the boiler, announced that
it did not conform to the requirements of the fabrication clause. Although Seals
attempted to couch his announcement in cagey language, that was the plain import
thereof. Seals followup statement that Paragon "would probably be taking the piping
off and replacing it with his men," conclusively proves that it was his position, the
boiler would not be installed unless the objectionable items were disassembled and
then reassembled by members of Local 539. Finally, in answer to Kitchen's asser-
tions that Paragon had had no trouble installing packaged boilers in other areas,
Seals retorted the boiler manufacturers had been "stealing" this work from the pipe-
fitters for sometime
Seals version of the meeting was that Kitchen showed him the boiler and asked
what items were to he removed. Seals replied the broken safety valve had to be
replaced. Kitchen then pressed him as to what items should and should not be on
the boiler and Seals said the trim piping should not be on it. When Kitchen asked
4 The complaint alleges that Burniece is engaged in the business of mechanical con-
tractor and the parties stipulated as to the correctness of the allegations insofar as com-
merce is concerned. The record, including Blesi's testimony, conclusively shows that
Burniece is not a mechanical contractor. While not too important, I do no consider the
stipulation as controlling or binding as to the nature of Burniece's business.
UNITED ASSN. PIPE FITTERS LOCAL 5 3 9, ETC. 333
for his suggestion in the matter, Seals answered he did not make suggestions. Seals
denied that he told Kitchen the trim piping would have to be disassembled and then
reassembled.
Admittedly, Seals advised Kitchen the trim piping should not be on the boiler.
However, his testimony that he declined Kitchen's request for suggestions as to what
should be done in this situation is simply unbelievable and implausible, for the fabri-
cation clause specifies trim piping as one of the items to be fabricated at the jobsite
or in the employer's shop. Therefore, unless Seals assumed that Kitchen understood
his statement to mean the trim piping had to be removed, his testimony must be con-
sidered as senseless and purposeless. In contrast to Seals, Kitchen impressed me as
being a truthful witness and his testimony regarding the local's position is consistent
with that of other witnesses. I, therefore, accept and credit Kitchen's testimony.
About October 31 Blesi received a telephone call from Tufte who stated that cer-
tain named items on the boiler were in violation of the agreement and had to be
removed. Blest replied he had nothing to do with the installation of the boiler and
the conversation ended with Tufte's promise to contact him later.
On November 1 Evans met Tufte in the latter's office where they briefly discussed
the Company's serviceman and Evans obtained a copy of the Local 539 agreement.
Tufte then brought up the subject of the boiler at the Pure Food building and said the
trim piping and other items fabricated by the manufacturer had to be removed He
also declared that "there couldn't be any more packaged boilers as such," that he
knew of one instance where such a boiler had to be "torn apart," and concluded his
discourse by saying Blesi-Evans was not the only one "being penalized for selling
packaged boilers." Evans did not discuss or argue the point and the meeting ended.
Tufte admitted that he spoke to Blesi and Evans on the above occasions for the
purpose of obtaining an agreement covering the serviceman. Tufte denied that he
mentioned or made any statements in regard to packaged boilers or the Pure Food
job in the course of these conversations.
Having found Tufte to be an unreliable witness, I find he made the statements
attributed to him by Blesi and Evans.
Concluding Findings as to the Burniece's Incident
The complaint in Case No. 18-CE-5 alleges that about November 4, 1963, the
Respondent Unions and Burniece's entered into an agreement which they have
interpreted, construed, and applied in violation of Section 8(e).
The complaint in Case No. 18-CC-144 alleges that since about November 1, 1963,
Respondent Local 539, has threatened, coerced, and restrained Burniece's, the
objective being to force or require Burniece's to cease using, handling, or otherwise
dealing in the products of, or doing business with, Paragon and Blest-Evans, and to
force or require Burniece's to enter into an agreement prohibited by Section 8(e), in
violation of the provisions of Section 8(b) (4).
The General Counsel. in his brief, states that shortly after the purchase of the
boiler, Blesi-Evans "made arrangements with Burniece's" to perform certain installa-
tion work, that later Burniece's accepted a purchase order from Kitchen to do this
work and Burniece, after talking to Tufte, decided not to take the job. The evidence
does not support these statements and unwarranted inferences
The testimony of Blest shows that sometime in August he telephoned Burniece to
ask if Burniece "was interested" in the job and, if so, to contact the job superintendent.
Burniece indicated he would take the job on a cost-plus basis. Certainly, this was no
firm commitment to accept the job. In fact, Burniece heard nothing further in the
matter until about 2 months later when Kitchen called him regarding the job and
Burniece said he would consider it on a cost-plus basis. There is no question Burniece
met Kitchen at the jobsite around October 25. Kitchen testified Burniece would not
submit a firm figure on the job and the only way he could do it was on a cost-plus
basis. Shortly thereafter, Kitchen sent Burniece a "work order" for the job.
Burniece's testimony is to the effect that he told Kitchen he should have a "work
.order" and after he had made a few decisions, he would contact Kitchen.
Burniece thereupon spoke to Seals about the job but there was no mention of the
fabrication clause and, in response to a specific inquiry by Burniece, Seals stated no
items had to be removed from the boiler. Burniece also discussed the job with
officials of the gas company and the city inspection department. Likewise, he called
Blesi several times to obtain data on the boiler, and during one of these conversations
Blesi mentioned he had talked with Tufte about the project. However, contrary to
Blest's testimony, Burniece denied Blesi suggested that Burniece contact Tufte.
Burniece testified that as a result of his discussions with officials of the gas company
and the city inspection department he decided the job was too big for him to handle.
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Burniece called Kitchen five or six times but could not reach him. He then went to
the jobsite and, being unable to find Kitchen, he left a note for him stating he was not
accepting the job. I accept the testimony of Burniece and find that he refused to
accept the job for the reasons stated by him.
The General Counsel, in an effort to sustain his position that Burniece declined the
job because of pressure or threats from Seals, states that on November 4 Burniece
called Blesi-Evans and "advised that he had talked to Seals of Local 539, and
gathered that it would be best if he did not take the job." Of course, the record as
well as Evans' own testimony refutes this argument. Evans admitted he called
Burniece to find out why he had refused the job and Burmece explained his decision
to do so was the result of his talks with representatives of the gas company, the city
inspection department, and Seals, not merely Seals, as the General Counsel contends.
Moreover, Burniece denied having any such conversation with Evans, and I am satis-
fied that the conversation did not take place. But, assuming the contrary, I see
nothing in the sketchy testimony of Evans on this point which would warrant the
inference that Burniece's refusal to accept the job was due to any pressure or threats
on the part of Seals.
The General Counsel also stresses the fact that Kitchen issued a "work order" to
Burniece and, seemingly, treats it as a binding contract for the installation of the oil
and gas piping on the boiler. Since the work order, or a copy, was not produced at
the hearing it cannot now be evaluated or construed. Kitchen's bare mention of the
work order may indicate it was merely a routine matter. Again, there is nothing in
Burniece's testimony that he accepted or considered the work order as a firm con-
tract to perform the work.
In view of the foregoing, I find the evidence as a whole is insufficient to sustain the
above-mentioned allegations of the complaints.
The Contentions of the Parties
Here, the parties advance substantially the same contentions with respect to the
applicability of Section 8(e) to the fabrication clause and the alleged 8(b)(4) con-
duct, as they did in the St. Paul case. In addition, Respondent Local 539 takes the
position that the record fails to sustain the allegations of the complaints.
Concluding Findings
1. As to the 8 (e) allegations
The record discloses that Local 539's demand for the fabrication clause stemmed
from its desire to seriously impede or eliminate the sale and use of packaged boilers
because they were being sold in such large numbers as to constitute a real threat to
employment of its members. By demanding and obtaining the fabrication clause in
these circumstances, Local 539 asserts it was doing nothing more than attempting
to protect jobs for its members, that Section 8(e) was not intended to apply to such
a situation, and that the clause falls within the construction industry proviso of Sec-
tion 8(e). For the reasons stated in the St Paul case, I reject these contentions.
I also reject the contention that trim piping work on packaged boilers has "cus-
tomarily" or "traditionally" been performed by members of Local 539. The evidence
proves that Local 539 members have installed packaged boilers, with external piping,
controls, and attachments fabricated in plants of boiler manufacturers from the
1950's to the date of the 1963 agreement. Thus, the record not only fails to support
the contention of Local 539, but demonstrates that the purpose of the fabrication
was, and is, to secure work for its members which is being performed by employees
of the boiler manufacturers through restrictive contractual arrangements directed
against the products of the boiler manufacturers.
In view of my specific findings in the Tonka Toys, Midwest Oil, and Pure Food &
Drug projects, I further find and conclude, on the rationale in the St Paul case, that
Respondent Local 539 and Contractors Association and its Member-Contractors have
interpreted, construed, and applied the fabrication clause as required that boilers with
external piping, controls, and attachments affixed thereto which are fabricated or
manufactured at places off the jobsite by employees outside the bargaining unit may
be installed on the jobsite only if such boilers are delivered at the jobsite without
external piping, controls, and attachments affixed thereto and/or that said external
piping, controls, and attachments on the boiler be disassembled and reassembled at
the jobsite by members of Local 539 and/or pipefitters employed under Local 539's
contract conditions is violative of Section 8(e) of the Act.
As set forth above, the complaint in Case No. 18-CE-5 alleges that about July 20,
1963, the Respondent Unions and Respondent Contractors Association entered into
an agreement containing the clause in question. The joint answer of Local 539 and
UNITED ASSN. PIPE FITTERS LOCAL 5 3 9, ETC. 335
Local 15, admits the execution of the agreement. Although the complaint alleges
the Respondent Unions, through their agents and representatives, interpreted, con-
strued, and applied the fabrication clause in an unlawful manner, the allegations are
limited to specific acts and conduct on the part of individual agents of Local 539.
However, there are no allegations of this nature insofar as Local 15 is concerned,
nor was any evidence adduced indicating Local 15 engaged in acts or conduct similar
to that of Local 539. As this violation is bottomed on the interpretation, construc-
tion, and application of the fabrication clause, rather than its meie execution, and the
evidence fails to sustain that theory, I find Local 15 has not engaged in any acts or
conduct in violation of Section 8(e) insofar as the fabrication clause is concerned.
In substance, the complaint alleges that by including the fair standards provision
(article XX, section 1) in the agreement, the Respondent Association and its Member-
Contractors have ceased and iefrained, or agreed to cease and refrain from handling,
using, selling, or otherwise dealing in the products of other employers, and have
ceased doing business with Orr & Sembower, Cleaver-Brooks, Bros, and other
members of American Association. The Respondent Unions concede this provision
is a violation of Section 8(e). At the outset of the hearing, counsel for the Respond-
ent Unions announced that the contracting paities had agreed to a new and lawful
subcontracting clause, so the present issue should be eliminated from the case. In
addition, counsel pointed out, and the General Counsel conceded, that there was no
factual situation involving the clause. I agree with the General Counsel that the
foregoing contentions may not be considered as a valid defense, nor as altering the
allegations of the complaint. I, therefore, find and conclude that the Respondents,
including Local 15, by entering into an agreement containing the fair standards clause,
as alleged in the complaint, thereby violated Section 8(e) of the Act.5
2. As to the 8(b) (4) violations
The remaining issue to be decided is whether Respondent Local 539 engaged in the
acts and conduct alleged to be in violation of Section 8(b)(4). Counsel for Local
539 contends the evidence is insufficient to establish the allegations of the complaint
that it engaged in any proscribed activity for an illegal objective.
The Tonka Toys Case
It is undisputed that Heinen sold a packaged boiler to Lamb, which Lamb was to
install at the Tonka Toys building, and the boiler was delivered about October 1. As
found above, Tufte went to the jobsite on or about the above date and told Harper and
Lantto, job superintendent and foreman for Lamb, respectively, that specific items on
the boiler had to be disassembled and reassembled at the jobsite, otherwise "he would
pull his men off the job." Harper promised to discuss the matter with his superior
and instructed Lantto to do nothing in the boilerroom until further notice.
The following week the dispute was referred to a committee composed of repre-
sentatives of Local 539 and Contractors Association. While the members were in
accord that some items had to be removed from the boiler before it could be installed,
they were unable to reach agreement on what items had to be removed therefrom.
Shortly thereafter, Heinen met with Tufte and Rudell, and Tufte reasserted his
demand that certain items on the boiler had to be disassembled and reassembled at
the jobsite. When Heinen complained of the unfairness of this demand, Tufte
declared all packaged boilers coming into the area would have to comply with the
fabrication clause.
From the foregoing facts I have no difficulty in finding and concluding that Local
539, through Tufte, threatened, restrained, and coerced Lamb Plumbing & Heating
Company, an object thereof being, to force or require Lamb to cease using, handling
or otherwise dealing in the products of, or doing business with Cleaver-Brooks, its
representative Heinen Company, and Tonka Toys, in violation of Section 8(b) (4) (u)
(B) of the Act.6
I further find and conclude that an object of the foregoing coercive acts was to
force Lamb to reaffirm the existence and effectiveness of the unlawful fabrication
i District No 9, International Association of Machinists , AFL-CIO ( Greater St. Louis
Automotive Trimmers and Upholsterers Association , Inc.), 134 NLRB 1354
6 Ohio Valley Carpenters District Council, etc . ( Cardinal Industries, Inc.), 136 NLRB
977, 984-990; International Association of Heat and Frost Insulators and Asbestos
Workers (Insul-Coustic Corporation ), 139 NLRB 659 ; Local 456 , International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America (Sid Harvey
Westchester Corp. ), 142 NLRB 1409.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 unlawful under Sec-
tion 8(e), and that a union's attempt by coercive means to obtain such a reaffirma-
tion from an employer is violative of Section 8(b) (4) (ii) (A) 7 I, therefore, find
Local 539 violated Section 8(b) (4) (ii) (A) of the Act.
As Tufte's coercive statements to Harper were made in the presence of Lantto, an
individual as definied in Section 8(b)(4)(i), and as the Board has held such state-
ments to constitute inducement and encouragement for proscribed objectives, I find
and conclude that Local 539 thereby violated Section 8(b) (4) (i) (A) and (B) of
the Act.8
I find no merit in the contention that the installation of the boiler at the Tonka
Toys building (as well as the other projects) without disassembly and without a
strike or work stoppage precludes a finding of unfair labor practices on the part of
Local 539. It is, of course, well settled that the inducement or threat need not be
successful to constitute a violation of the Act.9
The Midwest Oil Company Case
Bros sold a packaged boiler to Midwest and engaged Bjorkman Bros. to perform
the installation work.
As found above, Tufte, about October 9, told Brask and Doyle, estimator and
foreman for Bjorkman, respectively, that, under the fabrication clause, the trim
piping on the boiler had to be done at the jobsite. Brask advised Nygren of Tufte's
position either personally or by telephone Doyle also informed Nygren of Tufte's
visit and warned him to "Be sure the trim isn't on the boiler when you send it over ...
it will save you a lot of trouble if it comes in like it should." Tufte sought to avoid
responsibility for Doyle's statement to Nygren on the grounds that he was not an
officer of Local 539, and he had not "ordered" Doyle to contact Nygren for such
purpose. Since Doyle was the foreman of the job and a member of Local 539, he
was certainly the logical recipient of instructions from Tufte regarding the installation
of the boiler. In these circumstances it is reasonable to infer that Tufte intended
Doyle, as well as Brask, to pass on these instructions to interested persons, which
surely included Nygren, the representative of the boiler manufacturer 10 Clearly,
an objective of these instructions was to secure compliance with the fabrication
clause and to induce these individuals to engage in a strike or a refusal in the course
of their employment to use, handle, or work on the boiler, or to perform any services
thereon, unless the boiler conformed to the requirements of the fabrication clause.
I have also found that Tufte, on October 12, threatened Nygren he would "stop
the job," if the boiler was delivered with trim piping attached
On the basis of the foregoing findings, and the authorities cited above, I find and
conclude that Local 539 induced and encouraged individuals employed by Bjorkman
to engage in a strike or a refusal in the course of their employment to use, handle,
or work on goods, articles, or materials, or to perform services for their employer,
Bjorkman Bros. I further find an object thereof was to force or require Bjorkman
Bros. to cease using, handling, or otherwise dealing in the products, or doing busi-
ness with Bros, Incorporated, or doing business with Midwest Oil Company, and to
force or require Bjorkman Bros. to enter into any unlawful agreement within the
meaning of Section 8(e). By engaging in such acts and conduct Local 539 thereby
engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) (A) and
(B) of the Act.
The complaint does not allege that Local 539 threatened, coerced, or restrained
any of the above-named companies in violation of Section 8(b) (4) (ii) (A) and (B)
of the Act.
7Los Angeles Mailers Union No. 9, I.T.U. (Hillbro Newspaper Printing Company,
Division of Hearst Publishing Company, Inc.), 135 NLRB 1132, 1137-1138
8 Plumbers Union of Nassau County, Local 457, etc (Jerry Body, d/b/a Bomat Plumb-
ing and Heating), 131 NLRB 1243, 1247-1248, enfd. 299 F. 2d 497 (CA. 2) ; Interna-
tional Association of Heat and Frost Insulators and Asbestos Workers (Speed-Line Manu-
facturinq Co., Inc.), 137 NLRB 1410; District Council of Painters # 48, at al (Hamil-
ton Materials, Inc.), 144 NLRB 1523.
ON L R.B. v. Local 294, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen 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 , Chaziffeurs, Warehousemen and Helpers of America (Montgomery Ward &
Co.) v. N L R.B., 292 F. 2d 329 (C A. 2).
18 Highway Truckdrivers and Helpers , Local No 107, etc. (Riss & Company, Inc ),
130 NLRB 943, 948.
UNITED ASSN. PIPE FITTERS LOCAL 539, ETC. 337
The Pure Food and Drug Case
The remaining issue in this case is whether Local 539 threatened, coerced, or
restrained Paragon Heating & Plumbing Company for unlawful objectives.
The evidence, as found above, shows that about November 1, Seals went to the
jobsite and, after inspecting the boiler, told Kitchen it did not meet the require-
ments of Local 539's fabrication clause and that the boiler could not be installed
unless the trim piping was disassembled and reassembled by members of the local.
Of course, the actual installation was to be performed by Loosen and Northwest,
which were under agreement with Local 539. In full support of Seals' position,
Tufte, around the same date, warned Blesi that certain items on the boiler were in
violation of the fabrication clause and he also issued a similar warning to Evans,
together with the threat that "there couldn't be anymore packaged boilers as such"
in the area.
On these facts, I find that Seals threatened and coerced Kitchen, at least, for the
purpose of forcing or requiring him to agree to, or to accept, Local 539's fabrication
clause and to cease using, handling, or otherwise dealing in packaged boilers.
Accordingly, and on the basis of the authorities heretofore cited, I find and con-
clude that Local 539 thereby threatened, coerced, and restrained Paragon Heating &
Plumbing Company, an object thereof being to force or require Paragon to enter
into an agreement prohibited by Section 8(e) and to force or require Paragon to
cease using, handling, or otherwise dealing in the products of, or doing business with
Orr & Sembower and its representative Blesi-Evans, in violation of Section 8(b)(4)
(ii) (A) and (B) of the Act.
It seems clear that Seals' threats to Kitchen were made in the presence of Peterson
and Ivers, employees of Loosen Heating & Plumbing Company, but since the com-
plaint does not allege inducement or encouragement of employees in violation of
Section 8(b) (4) (i) (A) and (B), I make no findings on this point.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
it will be recommended that they cease and desist therefrom and take certain affirma-
tive action, as recommended in the St. Paul case, in order to effectuate the policies
of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record, I make
the following:
CONCLUSIONS OF LAW
1. Respondents Local 539 and Local 15 are labor organizations within the mean-
ing of Section 2(5) of the Act.
2. Respondent Mechanical Contractors Association of Minneapolis, Inc., is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
3. Orr & Sembower, Inc., Cleaver-Brooks Company, Bros, Incorporated, Lamb
Plumbing & Heating Company, Bjorkman Bros. Co., Tonka Toys, Incorporated,
Paragon Heating & Plumbing Company, Midwest Oil Company, and Burniece's, Inc.,
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) (u) 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 trim piping, controls, and other
items part of the packaged boiler are fabricated at the jobsite by members of Local
539, Respondent Local 539 and Respondent Mechanical Contractors Association of
Minneapolis, Inc , and its Member-Contractors engaged in and are engaging in
unfair labor practices within the meaning of Section 8(e) of the Act.
5. By entering into and maintaining an agreement containing a fair standards
clause which prohibits the subcontracting of any work unless the subcontractor has
an agreement with a union affiliated with the United Association, Respondents Local
206-446-66-vol. 151 23
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
539 and Local 15, and Respondent Mechanical Contractors Association of Minne-
apolis, Inc., and its Member-Contractors engaged in and are engaging in unfair labor
practices within the meaning of Section 8(e) of the Act.
6. By threatening, coercing, and restraining Lamb Plumbing & Heating 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, Cleaver-Brooks Company, its representa-
tive the Heinen Company, and Tonka Toys, Incorporated, Respondent Local 539
thereby violated Section 8(b)(4)(ii)(A) and (B) of the Act.
7. By inducing and encouraging the employees of Lamb Plumbing & Heating Com-
pany in the manner and for the objectives found herein, Local 539 thereby violated
Section8(b)(4)(i)(A) and (B) of the Act.
8. By inducing and encouraging the employees of Bjorkman Bros. Co. in the
manner and for the objectives found herein, Local 539 thereby violated Section
8(b)(4)(i)(A) and (B) of the Act.
9. By threatening, coercing, and restraining Paragon Heating & Plumbing Com-
pany 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 its representa-
tive Blesi-Evans Company, Respondent Local 539 thereby violated Section 8(b)(4)
(ii)(A) and (B) of the Act.
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 539 did not interpret, construe, and apply its fabrication
clause in violation of Section 8(e) insofar as Burniece's, Inc., is concerned, and did
not threaten, coerce, or restrain said Company for any unlawful objective, and I
recommend the complaints, in this respect, be dismissed.
12. Respondent Local 15, except for the fair standards provision, has not engaged
in any unfair labor practices in violation of Section 8(e), and I recommend the com-
plaint, in other respects, be dismissed.
[Recommended Order omitted from publication.]
Gal Tex Hotel Corporation, d/b/a Admiral Semmes Hotel and
Motor Hotel and Hotel and Restaurant Employees and Bar-
tenders Union, Local 176, AFL-CIO. Case No. 15-CA-2484.
August 6,1965
DECISION AND ORDER
On March 22, 1965, Trial Examiner David London issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief, and the General Counsel filed
exceptions 1 and a brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Brown and Jenkins].
1 The General Counsel excepted only to the Trial Examiner's apparently inadvertent
failure to include, in his Recommended Order and Notice, provisions covering certain con-
duct he found to be violative of the Act.
154 NLRB No. 22.