Sheet Metal Workers, Local 223

National Labor Relations Board - Board Decisions

Apr 3, 1972

196 N.L.R.B. 55 (N.L.R.B. 1972)

SHEET METAL WORKERS, LOCAL 223 55
Sheet Metal Workers International Association, Local
Union No. 223 , AFL-CIO and Continental Air Fil-
ters Company and Cambridge Filter Corporation
and Gelfand Roofing Company Cases 12-CC-725,
Cases 12-CC-726, 12-CC-728, 12-CC-727, and
12-CE-14
April 3, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On October 12, 1971, Trial Examiner Joseph I.
Nachman issued the attached Decision in this pro-
ceeding. Thereafter, Respondent, the General Coun-
sel, the Charging Parties, and Intervenor, Florida East
Coast Sheet Metal Contractors Association, jointly
filed exceptions and briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings,' findings,' and conclusions' except as mod-
ified herein.
We find, in agreement with the Trial Examiner, that
Respondent Local 223, by its conduct fully set forth
in the Trial Examiner's Decision, violated Section
8(b)(4)(i) and (ii)(B) and Section 8(e) of the Act. In
addition, we find that the following conduct of Local
i The Trial Examiner erroneously refused to hear the General Counsel's
oral argument proffered at the close of the hearing Section 102.42 of the
Board's Rules and Regulations reads in pertinent part,
Any party shall be entitled , upon request, to a reasonable period at the
close of the hearing for oral argument , which shall be included in the
stenographics report of the hearing.
The right thus granted includes the right to have the argument heard by the
Trial Examiner, and not simply read by him later.
In the circumstances of this case , however, we conclude that this error of
the Trial Examiner was not prejudicial.
2 The Respondent has excepted to certain credibility findings made by the
Trial Examiner It is the Board 's established policy not to overrule a Trial
Examiner 's resolutions with respect to credibility unless the clear preponder-
ance of all of the relevant evidence convinces us that the resolutions were
incorrect . Standard Dry Wall Products, Inc. 91 NLRB 544, enfd 188 F.2d 362
(C.A. 3). We have carefully examined the record and find no basis for
reversing his findings.
The Trial Examiner correctly found in his Findings of Fact that East Coast
Supply Company , Intercoastal , Inc., and Southern Metals, Inc., were distrib-
utors of sheet metal products , but inadvertently referred to these companies
as producers in his Conclusions of Law 3 and 4. We hereby correct the
inadvertence.
We also shall name these companies at the appropriate point in our Order,
which will be substituted for that of the Trial Examiner.
3In view of our ultimate conclusion here that article II, section 2, and
article VIII , section 2 , of the "Standard Form of Union Agreement" entered
into between Respondent and Gelfand Roofing Company, as administered,
maintained , enforced , and given effect to , are violative of Section 8(e), we
need not, and do not, pass on the validity under Section 8 (e) of such contract
provisions on their face.
223 also violated Section 8(b)(4)(i) and (ii)(B) of the
Act:
1. In late September 1970, Respondent' s Business
Manager Strong threatened Abraham Gelfand, a
partner in Gelfand Roofing Company, with a work
stoppage and picketing if Gelfand attempted to use
certain nonunion label sheetmetal materials on the
Centex-Winston jobsite. Strong warned Gelfand that
he intended to prefer charges against Gelfand under
the collective-bargaining agreement, but that he
would not do so if Gelfand paid Variety Children's
Hospital the sum of $150, the amount Strong calcu-
lated to be the additional wage cost had the materials
in question been fabricated by members of Respon-
dent. On the following day Gelfand, in response to
Strong's warning, delivered a check in the amount of
$150 to Strong, who mailed it to the hospital.
2. In early October 1970, on the Parkway Hospital
jobsite, Respondent's Business Representative Val-
destri told Union Air Conditioning Inc.'s Manager
Eden and employee Hanshaw, a member of Respon-
dent, that Respondent' s members would not install
the prefabricated filter racks manufactured by Cam-
bridge Filter Corporation because the racks had no
union labels, but that Respondent's members would
install the racks if Union Air paid them the difference
between Respondent's wage rates and the lower rates
paid Cambridge's employees. Valdestri, Eden, and
Hanshaw then determined the number of hours re-
quired to make the racks, and Eden agreed that Union
Air would pay Respondent's members in its employ
an amount to be determined by multiplying the hours
by the wage difference. Some days later, Valdestri
informed Eden that the appropriate wage difference
was $400. Eden paid his men that amount, and they
then installed the Cambridge racks on the Parkway
job.
In November 1970, Eden learned that
Respondent's members had refused to install nonun-
ion label Cambridge filter racks on the Palmetto Hos-
pital job. Eden telephoned Valdestri, who told Eden
that Business Manager Strong, unaware of the ar-
rangement Eden and Valdestri had made in October
at the Parkway Hospital jobsite, had told the men not
to handle the Cambridge units. Valdestri said he
would examine the units and then tell Eden the
amount due. Later Valdestri informed Eden the
amount due was $270, whereupon Eden paid the men
that amount and they installed the Cambridge racks.
3. United Sheet Metal Company purchased air han-
dling units made by Continental Air Filters Company
for its job at the Lutheran Medical Center, and others
made by Cambridge Filter Corporation for its job at
the Miami Airport. As detailed in the Trial
Examiner's Decision, Respondent's members refused
to handle the nonunion label filter rack components
196 NLRB No. 12
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of these units upon their arrival at the jobsites in
October 1970. The racks were then stored in United's
yard.
Respondent 's Business Manager Strong, accompa-
nied by United Shop Foreman Rongo and employee
and Shop Steward Ballas , both members of Respon-
dent, visited United's President Keen in his office.
Strong told Keen that United could use the Continen-
tal and Cambridge nonunion label racks only if it
would pay the difference between Respondent's con-
tract wage scale and the scale by which Cambridge
and Continental paid their Employees. After Strong,
Rongo, and Ballas had examined the units, Strong
told Keen that United would have to pay $1,750 to all
men employed by United on November 1, 1970. Later
in this conversation Strong said that the money might
be contributed to a charity. There is no evidence that
this amount was ever paid.
The Demands for Payment Constitute Economic
Coercion
We find that Respondent threatened, coerced, and
restrained Gelfand Roofing Company, Union Air
Conditioning, Inc., and United Sheet Metal Company
in violation of Section 8(b)(4)(ii)(B) of the Act by
demanding monetary penalties in exchange for per-
mitting its members to install the nonunion label
products, and also in Gelfand's case for withholding
the filing of grievances which were themselves intend-
ed to further Respondent's boycott of nonunion label
goods.4 Respondent imposed the penalties in each
case in the context of its threats of work stoppages,
picketing, or the filing of grievances under the re-
spective collective-bargaining agreements . The pay-
ments clearly were demanded as penalties for using
nonunion label products, and this course of conduct
constituted economic coercion applied by Respon-
dent in pursuance of secondary objectives, namely,
the labor relations of the manufacturers or distrib-
utors of such products. Gelfand, Union Air, and
United had no legal obligation to pay these sums.
Gelfand and Union Air did so only under the duress
imposed by Respondent in furtherance of its unlawful
objective.
We also conclude that Respondent's conduct with
respect to Union Air and United violated Section
8(b)(4)(i)(B) of the Act. Union Air paid Respondent's
members employed by it $400 to install Cambridge
units on the Parkway Hospital job and $270 to do
similar work on the Palmetto Hospital job. Those em-
ployees were thus induced and encouraged to boycott
future Cambridge and Continental racks in expecta-
c Cincinnati Sheet Metal A Roofing Company, A/K/A Ajax Company, 174
NLRB 104, enfd . as modified 433 F.2d 1189 (C.A.D.C.).
tion of receiving higher wages for working on them.
United's employees Rongo and Ballas were similarly
induced and encouraged by Respondent's demand
for a $1,750 payment as a condition precedent to their
handling the nonlabeled units. Such conduct is within
the meaning of "induce or encourage" and is pros-
cribed by Section 8(b)(4)(i) of the Act. International
Brotherhood of Electrical Workers, Local 501 v.
N.L.R.B. 341 U.S. 694, 701-702.
Our decision in American Boiler Manufacturers As-
sociation, 154 NLRB 285, enfd. in part and remanded
in part 366 F.2d 815 (C.A. 8); Supplemental Decision
and Order, 167 NLRB 602, affd. in pertinent part 404
F.2d 547 (C.A. 8), is distinguishable from the case
presented here. In that case the union brought an
employer before a joint committee composed of an
equal number of representatives of the union and the
employer association upon a charge of having violat-
ed the lawful fabrication clause of the collective-bar-
gaining agreement by accepting a packaged boiler.
The committee assessed a fine of $100, which the
employer agreed to and did pay. We found that that
agreement constituted reasonable compensation for
what the union contended was a breach of contract,
was a peaceful method of resolving a lawful dispute,
and did not violate Section 8(b)(4)(ii)(B). 154 NLRB
285, 292. On remand, after the decision of the Su-
preme Court in National Woodwork Manufacturer's
Association v. N.L.R.B.. 386 U.S. 612 (1967), we re-
considered the evidence and found that the fine was
for the purpose of preserving unit work, a primary and
not a secondary object, and, therefore, even if coer-
cive, was lawful and not prohibited by Section
8(b)(4)(ii)(B). 167 NLRB 602, 604, affd. in pertinent
part 404 F.2d 547 (C.A. 8, 1968).
In the instant case, Local 223 imposed the mone-
tary penalties on the employers in conjunction with
threats to engage in work stoppages and to file griev-
ances for using nonunion label products, a secondary
object. Such penalties were imposed not for the sole
primary object of preserving unit work but for the
secondary object of boycotting the materials herein
because of the absence of union labels. Accordingly,
we find that the monetary penalties imposed on Gel-
fand, Union Air, and United constituted economic
coercion and violated Section 8(b)(4)(ii)(B) of the Act.
THE REMEDY
The General Counsel and the Charging Parties and
Intervenor Florida East Coast Sheet Metal Contrac-
tors Association, jointly, except to the Trial
Examiner's failure to order Local 223 to reimburse
Gelfand and Union Air the moneys unlawfully exact-
ed from them by Local 223. We find merit in these
exceptions.
SHEET METAL WORKERS , LOCAL 223 57
In our view the purposes of the Act can best be
effectuated by requiring Local 223 to make whole the
employers from whom the monetary penalties were
unlawfully exacted. As in other situations where a
labor organization has by conduct violative of the Act
forced persons to make monetary payments,' we shall
require that Respondent Local 223 reimburse Gel-
fand Roofing Company the sum of $150 paid by it to
Variety Children's Hospital, and Union Air Condi-
tioning, Inc., the sum of $670 paid by it to its employ-
ees, by the repayment of these moneys, together with
interest at 6 percent per annum.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Sheet
Metal Workers International Association, Local Un-
ion No. 223, AFL-CIO, Miami, Florida, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Engaging in, or inducing or encouraging any
individual employed by Union Air Conditioning,
Inc., United Sheet Metal Company, or any other per-
son engaged in commerce or in an industry affecting
commerce to engage in, a strike or a refusal in the
course of his employment to use, manufacture, pro-
cess, transport, or otherwise handle or work on any
goods, articles, materials , or commodities, or to per-
form any services; or threatening, coercing, or re-,
straining Union Air Conditioning, Inc., United Sheet
Metal Company, Gelfand Roofing Company, or any
other person engaged in commerce or in an industry
affecting commerce, where, in either case, an object
thereof is to force or require any of the aforemen-
tioned employers or any other person to cease using,
selling, handling, transporting, or otherwise dealing in
the products of, or to cease doing business with, Cam-
bridge Filter Corporation, Continental Air Filters
Company, East Coast Supply Company, Intercoastal,
Inc., Southern Metals, Inc., or any other person man-
ufacturing and/or distributing sheetmetal products.
(b) Maintaining, enforcing, or giving effect to arti-
cle II, section 2, or article VIII, section 2, or the collec-
tive-bargaining agreement entered into by
Respondent and Gelfand Roofing Company on or
about May 21, 1970, entitled "Standard Form of Un-
ion Agreement," insofar, as these clauses are applied
to prohibit the use of nonunion label- products.
(c) Executing, maintaining, enforcing, or giving ef-
fect to any other contract or agreement, express or
implied, with any employer whereby such employer
ceases or refrains , or agrees to cease or refrain, from
handling, using, selling, transporting, or otherwise
dealing in any of the products of or to cease doing
business with Continental Air Filters Company, In-
tercoastal, Inc., Southern Metals, Inc., or any other
person, in violation of Section 8(e) of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Notify Gelfand Roofing Company that it will
not maintain, enforce, or give effect to article II, sec-
tion 2, or article VIII, section 2, of the collective-
bargaining agreement entered into on or about May
21, 1970, entitled "Standard Form of Union Agree-
ment," nor will it insist upon the inclusion of any
other clauses or provisions of a similar or like nature
in any future collective-bargaining agreement, insofar
as these clauses are to be applied to prohibit the use
of nonunion label products.
(b) Reimburse Gelfand Roofing Company the sum
of $150 and Union Air Conditioning, Inc., the sum of
$670, being payments unlawfully exacted from them
by Respondent in violation of the Act, together with
interest at the rate of 6 percent per annum.
(c) Post at its business offices and meeting halls,
copies of the attached notice marked "Appendix."6
Copies of said notice, on forms provided by the Re-
gional Director for Region 12, after being duly signed
by Respondent Union's authorized representatives,
shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Sign and mail to said Regional Director, on
forms to be supplied by him, sufficient copies of the
aforesaid notice for posting by Gelfand Roofing
Company, Union Air Conditioning, Inc., United
Sheet Metal Company, and by the employer-mem-
bers of Florida East Coast Sheet Metal Contractors
Association, if they are willing, at all places where
notices to their employees, respectively, are custom-
arily posted.
(e) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
5 Local 964, United Brotherhood of Carpenters and Joiners of America (Con-
tractors & Suppliers Association of Rockland County, New York, Inc.), 181
NLRB 948, Turner-Brooks, Inc, 161 NLRB 229.
6 In the event that this order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board."
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO MEMB1iRS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT engage in, or induce, or encourage any
individual employed by Union Air Conditioning,
Inc., United Sheet Metal Company, or any other per-
son engaged in commerce or in an industry affecting
commerce, to engage in, a strike or a refusal in the
course of his employment to use, manufacture, pro-
cess, transport, or otherwise handle or work on any
goods, articles, materials, or commodities, or to per-
form any services; or threaten, coerce, or restrain Un-
ion Air Conditioning, Inc., United Sheet Metal
Company, Gelfand Roofing Company, or any other
person engaged in commerce or in an industry affect-
ing commerce, where in either case an object thereof
is to force or require any of the aforementioned em-
ployers, or any other person, to cease using, selling
handling, transporting, or otherwise dealing in the
products of or to cease doing business with Cam-
bridge Filter Corporation, Continental Air Filters
Company, East Coast Supply Company, Intercoastal,
Inc., Southern Metals, Inc., or any other person man-
ufacturing and/or distributing sheetmetal products.
WE WILL NOT maintain , enforce, or give effect to
article II, section 2, or article VIII, section 2, of the
collective-bargaining agreement entered into by us
with Gelfand Roofing Company, on or about May 21,
1970, entitled "Standard Form of Union Agreement,"
with an object of prohibiting the use of nonunion
label products.
WE WILL NOT execute, maintain, enforce, or give ef-
fect to any other contract or agreement, express or
implied, with any employer whereby such employer
ceases or refrains, or agrees to cease or refrain, from
handling, using , selling, transporting, or otherwise
dealing in the products of or to cease doing business
with Continental Air Filters Company, Cambridge
Filter Corporation, East Coast Supply Company, In-
tercoastal, Inc., Southern Metals, Inc., or any other
person, in violation of Section 8(e) of the Act.
WE WILL reimburse Gelfand Roofing Company the
sum of $150, and Union Air Conditioning, Inc., the
sum of $670, which we forced them to pay in order to
use nonunion label products, together with interest at
the rate of 6 percent per annum.
SHEET METAL WORKERS INTER-
NATIONAL ASSOCIATION, LOCAL
UNION No. 223, AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Room 706, Federal Office Building,
500 Zack Street, Tampa, Florida 33602, Telephone
813-228-7711.
TRIAL EXAMINER'S DECISION
JOSEPH I . NACHMAN, Trial Examiner: This case tried be-
fore me at Miami, Florida, on May 3-7 and June 1-4, 1971,
with all parties present and represented by counsel, involves
a consolidated complaint 1 pursuant to Section 10(b) of the
National Labor Relations Act, as amended (herein the Act),
which alleges that Sheet Metal Workers International Asso-
ciation, Local Union No. 223, AFL-CIO (herein Local 223
or Respondent), by inducing and encouraging employees of
various employers performing services on various construc-
tion projects hereafter more fully detailed, and by re-
straining and coercing said employees, in order to require
said employers to cease doing business with the manufac-
turers of several products used in said construction, violated
Section 8(b)(4)(i) and (ii)(B) of the Act, and by enforcing
certain provisions in a contract between the Union and
Gelfandin a manner which required Gelfand to cease using
the products of other employers, or from doing business
with other persons, violated Section 8(e) of the Act. For
reasons hereinafter more fully explicated, I find and con-
clude that Local 223 violated both Section 8(e) and Section
8(b)(4) (B) of the Act, and recommend an appropriate reme-
dial order.
At the trial all participants were afforded full opportunity
to introduce relevant testimony , to examine and cross-ex-
amine witnesses , and to submit briefs. Briefs submitted by
Respondent and each of the Intervenors have been duly
considered. The General Counsel, although urged to file a
brief, refused to do so and instead read into the record the
contents of a memorandum he had previously written
out,2 and which I have duly considered.
Upon the pleadings, stipulations of counsel, the evidence
including my observation of the demeanor of the witnesses,
and the entire record 3 in the case, I make the following:
i Issued March 15,1971, based on charges filed by Continental Air Filters
Company (herein Continental ), Cambridge Filter Corporation (herein Cam-
bridge), and Gelfand Roofing Compapy (herein Gelfand). In Case 12-CC-
725, the charge was filed November 16; in Case 12-CC-726 on November
19, in Case 12-CC-727 on November 20; in Case 12-CC-728 on November
23, and in Case 12-CE-14 on November 20, all in 1970.
At the hearing, Air Conditioning , Refrigeration , Heating & Piping Associ-
ation , Inc, and Florida East Coast Sheet Metal Contractors Association,
Inc, were permitted to intervene
2 The difficulty with such a document is that, being prepared in advance,
it deals with facts as counsel hoped to develop them , rather than as they did
in fact develop.
3 During the pendency of this proceeding , I issued an order, dated July 16,
1971, directing the parties to file a response with respect to certain matters.
Those responses , marked Trial Examiner 's Exhs. 1, 2, 3, and 4 , respectively,
are now made a part of the record herein
SHEET METAL WORKERS , LOCAL 223 59
FINDINGS OF FACT 4
Background
The unfair labor practices involved in the proceeding
concern five different and unrelated construction projects
identified in the record as Centex-Winston Condominium,
Parkway General Hospital, Palmetto General Hospital, Lu-
theran Medical Center, and the Miami Airport jobs, the
details of which will hereafter be started. Preliminarily it
may be noted that the Union and Florida East Coast Sheet
Metal Contractors Association entered into a contract, ef-
fective from July 1, 1969, to June 30, 1972, and thereafter
from year to year unless terminated as provided in said
contract, governing the wages, hours, and terms and condi-
tions of employment of members of the Union employed by
the employer members of the Association. In addition some
employers who are not members of the Association have
signed the aforementioned contract and have agreed to be
bound by its terms . The first 13 Articles of the contract are
a standard form of agreement utilized by the International
in all contracts , and the remainin& 20 Articles relate to local
conditions which Local 223 negotiates with the Association.
Among the employers who are not members of the Associa-
tion, but who have signed the union contract, is Gelfand,
who signed such contract on May 21, 1970. The standard
form contract contains , inter alia , the following provisions:
ARTICLE I
SECTION 1. This agreement covers the rates of pay,
rules and working conditions of all employees of the
employer engaged in but not limited to the (a) manu-
facture, fabrication, assembling, handling, erection, in-
stallation, dismantling, conditioning, adjustment,
alteration, repairing and servicing of all ferrous or non-
ferrous metal work of U.S. 10 guage or its equivalent
or lighter gauge and all other materials used in lieu
thereof and of all air-veyor systems and air handling
systems regardless of material used including the set-
ting of all equipment and all reinforcements in connec-
tion therewith; (b) all lagging over insulation and all
duct lining; (c) testing and balancing of all air-handling
equipment and duct work; (d) the preparation of all
shop and field sketches used in fabrication and erec-
tion, including those taken from original architectural
and engineering drawing or sketches, and (e) all other
work included in thejurisdictional claims of Sheet Met-
al Workers' International Association.
ARTICLE II
* * * *
SECTION 2. Subject to other applicable provisions
of this Agreement , the Employer agrees that when sub-
4 There is no issue of commerce or labor organization . The allegations of
the complaint admitted by the answer establish these jurisdictional elements.
I find those facts to be as pleaded.
contracting for refabrication of materials covered
herein, such prefabrication shall be subcontracted to
fabricators who pay their employees engaged in such
fabrication not less than the prevailing wage for com-
parable sheet metal fabrication, as established under
provisions of this Agreement.
*
ARTICLE VIII
* * * * *
SECTION 2. On all work specified in Article I of this
Agreement, fabricated and/or assembled by journey-
men sheet metal workers and/or apprentices within the
jurisdiction of this Union, or elsewhere, for erection
and/or installation within the jurisdiction of any other
Local Union affiliated with Sheet Metal Workers' In-
ternational Association, whose established wage scale
is higher than the wage scale specified in this Agree-
ment, the higher wage scale of the job site Union shall
be paid to the journeymen employed on such work in
the home shop or sent to the job site.
SECTION 3. The provisions of Section 2 of Article
II and Section 1 of Article III shall not be applicable
to the manufacture for sale to the trade or purchase of
the following items:
1. Ventilators
2. Louvers
3. Automatic fire dampers
4. Radiator and air conditioning unit enclosures
5. Fabricated pipe and fittings for residential instal-
lations only
6. Mixing (attenuation) boxes
7. Plastic skylights
8. Air diffusers, grilles, registers
9. Sound attenuators
The General Counsel concedes that the foregoing contract
provisions are valid on their face, but contends that as im-
plemented by Respondent Article II, Section 2, and Article
VIII, Section 2, violate Section 8(e) of the Act .5
Gefland has been engaged for some years as a roofing
contractor in the Miami area and generally employed mem-
bers of a Roofers local with whom it hada contract. Prior
to May 21, 1970, Gelfand had no contract with Respondent
and employed members of the latter only on very rare occa-
sions, and when they were employed it was always on a
5 The 8(e) allegations of the complaint herein relate only to the contract
between Gelfand and the Union The complaint contains no allegation, nor
is there any contention by the General Counsel, that the master contract
executed by the Association on behalf of its employer members is in any way
invalid. Counsel for the Association , which was permitted to intervene only
with respect to the 8 (b)(4)(B) allegations , and who is also counsel for Cam-
bridge and Continental , argues that, notwithstanding the absence of a charge
and allegations in the complaint, the evidence shows the contract provisions
above referred to were implemented by Respondent against Union Air Con-
ditioning, Inc (herein Union Air), and United Sheet MetalCompany (here-
in United), who are members of Association , in precisely the same manner
as they were against Gelfand, that the issue was therefore fully litigated, and
that an adjudication should be made here that the clauses referred to are
equally invalid with respect to Union Air and United. For reasons stated in
the section hereof entitled "The Remedy," I deem it unnecessary to make the
adjudication counsel requests , assuming I have the authority to do so.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obsite and never in the fabrication of sheet metal items.
indeed, the record is clear that prior to May 1970 Gelfand
had no facilities to fabricate such items, and all such sup-
plies, such as stucco stops, gravel stops, gutters, and down-
spouts, it purchased from local distributors, including East
Coast Supply Company, Intercoastal , Inc., and Southern
Metals, Inc. (herein East Coast, Coastal, and Southern, re-
spectively). The record is clear that the distributors men-
tioned are not under contract with Respondent.
The Specific Jobs Involved
The Centex-Winston Condominium Job
Centex-Winston is engaged in real estate development,
and the construction of dwelling units. Its project at Miami
Beach , Florida, involves the construction of seven high-rise
condominium apartment houses . Centex-Winston is its own
general contractor , but has subcontracted portions of the
work to various contractors including Gelfand , which has
the contract for roofing ; Dublin Company which is the
prime mechanical contractor ; and Metal Fabricators, Inc.,
for the installation of heating and ventilating ducts.
Gelfand began work on the Centex -Winston job in Sep-
tember 1970 and preparatory thereto delivered to the jobsite
certain materials, including stucco stops and gravel stops to
be used by his employees who were members of a Roofers
Union, to performliis contract with Centex -Winston. Some-
time thereafter Lenny Gelfand, a partner in Gelfand Roof-
in.g, was approached on the jobsite by Martin Gershowitz,
whose status will be hereafter discussed and who was on the
job as a part of a crew employed by Metal Fabricators.
Gershowitz asked Lenny Gelfand where he got the stucco
and gravel stops , adding that Gelfand could not use them
on the job because they did not have a union label on them.
Gershowitz then cautioned Gelfand that if he persisted in
using the stucco and gravel stops he (Gershowitz) would
walk' off the job and that other members of Respondent
working for other contractors would do likewise. Lenny
Gelfand inquired by what authority Gershowitz spoke and,
according to Gelfand ,Gershowitz replied that he was the
union steward on the job. Gershowitz denied not only that
he made the latter statement to Gelfand , but denied that he
was ever vested with authority as a union steward, or that
he ever acted as such , claiming that he acted only as an
individual member of the Union.
Apparently as a result of his conversation with Gershow-
itz, Lenny Gelfand telephoned Union Agent Strong and
asked the latter who Gershowitz was. According to Gelfand,
Strong replied that Gershowitz was Respondent 's steward
on the Centex-Winston job . Strong denies not only that he
made the latter statement , but denies that the Union ap-
pointed stewards for any construction obsites . The issue
thus raised is hereafter disposed of. Gelfand then asked
Strong about using the stucco and gravel stop and, after
telling Strong that he had purchased them from local supply
houses, the latter stated that Gelfand could not use the
material , nor could he use members of the Roofers Union
to put them on, and that if Gelfand insisted on doing so
there would be a picket on the job and a work stoppage
would result.
Thereafter, in October 1970, when Lenny Gelfand deliv-
ered additional stucco stops and other sheet metal materials
for use on the Centex-Winston job, he was again met by
Gershowitz who stated , in the presence of Centex- Winston
Assistant Supervisor Kluger , that the material could not be
used on the job because it did not have union labels and
warned Kluger that Respondent 's members employed by
Metal Fabricators would walk off the job if there was any
attempt to use metal not bearing the union's label or if
employees who were not members of Respondent were as-
signedyto install the same . Aproximately a month later,
when Dublin sought to deliver some air-conditioning stands
to the job, Gershowitz told Dublin Foreman Eigner and
Centex-Winston Assistant Superintendent Kluger that the
air-conditioning stands were nonunion because they did not
bear union labels and should not be accepted. When Eigner
and Kluger saw fit to ignore Gershowitz' warnin , directing
that the stands be unloaded, Gershowitz andg the other
members of Respondent employed on the job by Metal
Fabricators engaged in a work stoppage which lasted about
2 hours. According to Gershowitz, the men returned to work
when the stands were unloaded, because they were not
being worked on .6
Abraham Gelfand, likewise a partner in Gelfand Roof-
ing, also had several conversations with Union Agent
Strong relating to this issue. One of these occurred in late
September at Gelfand's premises . On this occasion Strong
told Gelfand that the latter was not to use the metal material
he had purchased for the Centex-Winston job because it
was not union made, and that if Gelfand did' so he (Strong)
would tell the roofers not to install it and if he found any
job on which Gelfand attempted to use such material he
would put a picket on it. Strong also told Gelfand that he
was going to bring charges against the latter pursuant to the
grievance procedure of the contract, but that he would re-
frain from doing so if Gelfand would donate to the Variety
Children's Hospital, the sum of $150 being the amount
Strong calculated to be the difference in wage cost had the
metal in question been fabricated by members of Respon-
dent. Gelfand, regarding the hospital as a worthy charity
and feeling that it would be worth the amount asked to get
Strong not to pursue the matter further, took a check for
$150 to Strong's office the following day. While a letter
transmitting the check to the hospital was being prepared,
Strong and Gelfand went out for coffee. At this time Strong
told Gelfand that the $150 covered only the situation they
had discussed the preceding day, but that he had other
situations with respect to which he would file charges.
Thereafter, by letter dated October 28, 1970, Union Agent
Strong filed a grievance against Gelfand pursuant to the
contract, claiming that the purchase of certain sheet mate-
rials for use on the Centex-Winston job and a Holiday Inn
job violated Article II, Section 2, of the contract.
Abraham Gelfand had another conversation with Strong
about mid-November. On that occasion Strong telephoned
Gelfand and asked that the latter give work to a member of
the Union. Gelfand stated that he had no work immediate-
ly, but would be able to use the man the following week.
Strong insisted, however, that the man be put to work that
day. Gelfand replied that the only work he-had for the man
that day would involve working on stucco or gravel stops
that he had purchased from the local supply houses. Strong
replied that he did not want the man working on such
materials, but insisted that Gelfand pay the man for the
entire day. Gelfand refused, saying the man had performed
no work, and accused Strong of shaking him down." On
this occasion Strong also told Gelfand that all employers
under contract with the Union made the stucco and gravel
stops in their own shops. When Gelfand took issue with that
statement and pointed out that he (Gelfand) had to pur-
6 Gershowitz admits the discussion with Kluger and Eigner, as well as the
fact that the men ceased work, but claimed that such stoppage was the
individual act of the men because of their dissatisfaction over the fact that
nonunion materials were being brought to the job.
SHEET METAL WORKERS , LOCAL 223 61
chase such items because he had no shop in which they
could be made, Strong stated that if Gelfand continued to
purchase such materials from local supply houses he
(Strong) would file more and more grievances; that this
would cost Gelfand "a lot of money.' and reminded Gel-
fand that he (Strong) had helped to put quite a few employ-
ers out of business including Gelfand's brother-in-law; and
that he was going to try to do the same to Gelfand.7
The Parkway Hospital and Palmetto Hospital Jobs
The Parkway job involves the remodeling and enlarge-
ment of the Parkway General Hospital, while the Palmetto
job involves the construction of a new hospital. With respect
to each job, the work to be performed is detailed in plans
and specifications prepared by Smith, Korach & Associates,
Architects- Engineers . The general contractor on each job
is Edward J. Gerrits Construction Company. With respect
to each job, Gerrits subcontracted to union Air the work
of furnishing all labor and material necessary to effect a
complete and functioning air-conditioning system, all in a
strict accordance with the aforesaid plans and specifica-
tions. As to both jobs the plans and specifications provide,
inter alia, that in connection with the air conditioning there
would be installed at indicated locations a designated model
number of a Cambridge prefabricated filter unit, or a unit
of equal performance, provided the substitution had the
prior approval of the architects and consulting engineers in
charge of the-project.
Union Air is an air-conditioning and sheet metal contrac-
tor in the Miami area. It is a member of Florida East Coast
Sheet Metal Contractors Association; and as such is a party
to and bound by the contract which the Association execu-
ted with Respondent. In accordance with said contract,
Union Air employs members of Respondent in its sheet
metal shop, as well as on construction pro ects. To perform
its contracts with respect to the Parkway Hospital and Pal-
metto Hospital jobs, Union Air ordered from Cambridge
the filter units designated by the plans and specifications. 8
When the Cambridge units arrived at the Parkway Hospi-
i The findings in this section are based on the credited testimony of Lenny
and Abraham Gelfand. In some respect their testimony is in conflict with
that of Gershowitz and Strong, but I do not credit the latter Particularly in
the case of Strong, because of his demeanorwhile testifying , including the fact
that I found him to have been deliberately evasive , I have concluded that I
cannot credit him except in those instances where (a) the particular fact is
not in dispute ; (b) his testimony is in the nature of and admission against
interest ; or (c) he is corroborated by other evidence which I find credible.
8 The units referred to consist of a filter made of some media , usually fiber
glass, bound into a frame . The framed filter fits into a so-called rack, some
of which are simple , but often may be rather complicated in design . The rack
in turn fits into or becomes a part of the duct system and is designed to filter
the air that is to enter the area to be air -conditioned . With the ordinary air
filter efficiency is rather low-from 2 to 10 percent-but this is regarded as
adequate for the usual installation. However for clean rooms in hospitals or
research areas, or in areas where it is sought to keep out heavy smoke or
odors, there has in recent years been developed so-called high efficiency
filtration systems which range in efficiency from 30 percent to absolute.
Cambridge, as well as Continental , which is also involved in this proceeding,
make units consisting of the filters and what is variously referred to in the
record as a frame , a housing, a carrier , but most frequently as a rack, which
are built as a unit and pretested for efficiency , and if purchased and used as
a unit are guaranteed by the manufacturer to perform properly at the spec-
ified rate of efficiency. As hereaftermore fully discussed, it is because of the
nature of the structures involved , and the fact that Cambridge and Continen-
tal units are pretested and warranted to operate at a stated rate of efficiency,
that caused the architects and engineers to specify that those units be used
on the jobs involved , rather than have the racks fabricated in the sheet metal
shops operated by the air-conditioning subcontractor , as had frequently been
done in the past.
taljob sometime early in October 1970, Union Air Manager
Eden learned that the members of Respondent employedby
Union Air were refusing to handle or install the Cambridge
units. For the purpose of reaching some agreement pursuant
to which his employee members of Respondent would in-
stall the Cambridge units , Eden telephoned Valdestri, an
admitted agent of Respondent, and arranged to meet the
latter at the jobsite a day or two later. At this meetin
attended by Valdestri, Eden, and Hanshaw, a member of
Respondent employed by Union Air, Valdestri told Eden
that members of Respondent would not handle any units
that did not have union labels on them, and if such was the
case Union Air would have to fabricate the rack portion of
the unit in its own sheet metal shop. Valdestri also stated
that, while Union Air could purchase prefabricated filter
racks, it had to purchase a rack which had a union label on
it or Respondent's members would not install it. The parties
then examined the Cambridge units on the job and, ascer-
taining that they did not bear the required label, Valdestri
repeated that the members of Respondent would not install
them because such labels were lacking. Eden explained to
Valdestri that Cambridge units had been ordered for the job
because they were specified in the plans and specifications,
had to be used to comply with his contract, and asked if
there was anything that could be done that would result in
Respondent's members installing them. At this point Val-
destri stated that, if Union Air would agree to pay the
difference in the wage rate paid to Respondent' s members
and the wage rate paid to the employees who fabricated the
Cambridge units , Respondent's members would install
them, and that while he did not then know the wage rate
paid Cambridge employees he could ascertain that figure.
Valdestri, Eden, and Hanshaw, after further examination of
the units, agreed on the number of hours it would take to
fabricate the Cambridge units delivered to the Parkway job,
so that when Valdestri ascertained the difference in wage
rates it would be a mere matter of multiplication, and Eden
agreed to pay whatever figure that formula might require.
Eden then told Valdestri that Cambridge units had also
been ordered for the Palmetto Hospital job, so that the same
problem would arise there, and asked ifit might be resolved
in the same way so that there would be no delay in the
installation of the units on that job. Valdestri agreed that the
same formula might be applied, and that Respondent's
members would then install the units at the Palmetto job.
A few days later Valdestri telephoned Eden that he had
ascertained the wage rate at Cambridge, and that based on
the estimate of hours previously agreed upon Union Air
owed about $400. Eden paid the amount so agreed upon to
the men, and they then installed the Cambridge units on the
Parkway job.
When the Cambridge units arrived at the Palmetto job
sometime in November 1970 Eden was out of town. Upon
his return, he was informed by his foreman on that job that,
when the units arrived and were found not to have union
labels, Respondent's members employed by Union Air re-
fused, for that reason, to handle them; that he telephoned
Strong and the latter stated that the men were not to handle
the units;9 and that the units had been sent to storage. Eden
thereupon telephoned Valdestri and told him that his mem-
bers employed at the Palmetto job had refused to handle the
Cambridge units, and that it was the same problem that had
arisen at the Parkway job and which they had agreed to
settle as they had at Parkway. Valdestri told Eden that he
was aware of the situation; that he also had been out of
9 This testimony was received only for the purpose of establishing that
Eden was so informed and to explain his future conduct by reason of that
information, and not for the truth of the statement.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
town when the Cambridge units were delivered to the Pal-
metto job; and that some of the men had called the union
hall and Strong, not knowing of the arrangement he and
Eden had made for settlement of the problem, instructed the
men not to accept or handle the Cambridge units. Valdestri
also told Eden that the problem at Palmetto could be han-
dled in the same manner it had been handled at Parkway,
and that he would examine the units that had been refused
and call him later with respect to the amount due. Several
days later Valdestri called Eden and stated that he had
examined the units for the Palmetto job and that under the
formula they had agreed upon the amount due was $270.
Eden paid this amount to the men, redelivered the Cam-
bridge units to the Palmetto 'ob, and they were then in-
stalled by Respondent's members.10
The Lutheran Medical Center Job
This job involves the construction of a medical center to
be built in accordance with plans and specifications prepared
by Steward-Skinner Associates , Architects . The mechan-
ical contractor on the J]ob, Sam L. Hamilton, Inc.,
subcontracted to United the furnishing and installation of
certain sheet metal equipment , includmg,inter alia, certain
air handling equipment , all in accordance with the plans
and specifications prepared by Stewart-Skinner Associates.
The plans and specifications called for United to furnish
and install at indicated locations a designated model num-
ber of a prefabricated filter unit manufactured by Cam-
bridge, or unit of other designated manufacturers , including
Continental, of equal performance , provided that such sub-
stitution had the prior approval of the architects and con-
sulting engineers in charge or the project . Before starting
work on the project United ascertained that units of equal
performance could be obtained from Continental at less
cost than from Cambridge and asked the appropriate par-
ties for permission to make the substitution . In due course
the substitution was approved , and United purchased the
required Continental filter units and arranged for their de-
livery to the job site."
United is an air -conditioning and sheet metal contractor
in the Miami area . It is a member of Florida East Coast
Sheet Metal Contractors Association and is a party to and
bound by the contract which said Association executed with
Respondent . In accordance with said contract United em-
ploys members of Respondent both in its sheet metal shop
and on its construction projects.
Sometime in October 1970, United truckdriver Brown
undertook to deliver a shipment of Continental filter units
10 Based on the credited testimony of Eden Valdestri admits that he and
Eden met at the Parkway job and discussed the Cambridge units. He denied
that he told Eden that the men would not handle material that did not have
a union label and claims that he told the men that the presence or absence
of a union label made no difference , that in either event the men should
install the units and if need be the Union would file a grievance under the
contract, but that the men, insisting that they would not handle non-labeled
products , told him to "go to hell ." Valdestri also denied that he told Eden
that he was free to purchase filter racks from any source so long as they had
a union label, and claimed that he told Eden that the problem centered not
on the presence or absence of a union label, but on the enforcement of the
wage differential provisions of the contract . Valdestri further denied that the
Palmetto job was mentioned by either party during their discussion on the
Parkway job and claimed that he settled that issue with Union Air outside
Superintendent Harley McDougal . He did not deny that he told Eden, as the
latter testified , that in his absence Strong had told the men at the Palmetto
job not to handle the Cambridge units . To the extent that Valdestn 's testimo-
ny confkcts with that of Eden, I credit the latter.
11 Continental filter units , like those of Cambridge (see fn. 8, supra), are
pretested and warranted to perform at a stated rate of efficiency.
to the Lutheran Medical Center job, but the delivery was
refused by United Foreman Frederick, who is a member of
Respondent. Frederick testified that he refused the delivery
because the units did not have a union label on them, and
for that reason the men, who are also members of Respon-
dent, would neither unload nor install them. When asked if
it was union policy for the men to refuse to handle materials
which do not have a union label, Frederick replied, "Yes,
it's up to the man himself on the job." According to Freder-
ick, he discussed the units involved with two of the men on
the job, but the record does not indicate the nature of that
discussion. Several weeks later United sent its driver, Ro-
derick, to redeliver the Continental units to the Lutheran
Medical Center job. About the same time Roderick arrived
at the job, United President Keen also arrived, and both
Keen and Roderick were approached by Foreman Freder-
ick. Keen told Frederick that units on the truck were the
same ones that had been sent to the j'ob previously and
which Frederick had previously refused, but explained that
he (Keen) had spoken to the factory and had been advised
that the "problem had been straightened out." Frederick
then inspected some of the units on the truck and told Keen
that he (Frederick) would have to check with the Union
before he could accept the delivery. Keen followed Freder-
ick to a construction trailer where the latter made a tele-
phone call to the union office, speaking to one Richard
Tucker, an admitted agent of Respondent. Keen heard
Frederick say, "Tucker, we have some Continental filters on
thejobsite. Is it all right to unload them." After listening for
a short period, Frederick hung up the phone and told Keen
he could not unload the filter units. Frederick testified that
Tucker told him that Continental had not been straightened
out yet, that there was nothing wrong with the filters, and
that he should accept those, but the problem was "just the
filter racks themselves." Frederick then returned to the
United truck and told the driver that he could not accept
the delivery and to return the material to United's yard,
which was done.12
The Airport Jobs
The Miami Port Authority awarded a contract for cer-
tain remodeling work to be done at concourses 1, 2, and 3,
Miami International Airport, in accordance with plans and
specifications prepared by Steward-Skinner Associates, Ar-
chitects. The general contractor on the job is not disclosed
by the record, but the mechanical contractor is Poole and
Kent Company. The latter subcontracted to United the
work of supplying and installing sheet metal ducts and all
filters required for air handling units, all as provided in the
plans and specifications. The value of these contracts is
$165,500. The contract let by the Airport is on a so-called
base bid basis, which requires that the bid be in strict ac-
cordance with the documents upon the basis of which such
bids are solicited. The specifications above referred to re-
ire that in connection with the air handling units there
shall be installed at indicated locations a designated model
number of a Cambridge prefabricated filter unit. United
President Keen testified that having learned from many
years' experience that it would be a "waste of time" to try
to get approval to substitute another brand of filter unit he
made no such effort and purchased the designated Cam-
bridge filter units to be delivered to the Airport jobs.
Late in October 1970, United driver Sampson was sent to
12 The foregoing findings are based on the uncontradicted and credited
testimony of Keen and Frederick. Union Agent Tucker who testified as a
witness for Respondent with respect to other matters , after Frederick testi-
fied , did not deny the remarks attributed to him by Frederick
SHEET METAL WORKERS, LOCAL 223 63
the Airport job to deliver a number of Cambridge filter units
to be installed there by United . At the' time United had three
sheet metal employees on the job, all members of Respon-
dent . These were hill Lock , Tony Falita, and Joe Thomp-
son, the latter being the foreman of the crew . Arriving at the
Airport, Sampson located Thompson , presented him with
some order sheets, and stated that he had material to deliver
for the job . Thomson replied, "All right , we will go down
and see what you ve got . Thompson and Sampson, along
with Lock and Falita , then went to truck , and Lock climbed
in inspecting the material . After a few minutes Lock stated
"he couldn't handle this stuff," and Thompson asked why.
Lock replied , "There is no union stickers on these ." Thomp-
son, Lock , and Falita left Sampson with Lock stating that
they were going to call the union hall . After some period,
the three returned to the truck and told Sampson that the
would unload the boxes (in which the filters were packed,
but could not touch the crates (containing the rack portion
of the Cambridge units ), and that those would have to be
returned to the United yard , which Sampson did.
Other Evidence of Inducement and Coercion as to the
Lutheran Medical and Airport Jobs
As heretofore indicated the Continental and Cambridge
filter racks, which United attempted but was unable to de-
liver to the Lutheran Medical and Airport jobs, were re-
turned to the United yard, where they remained for an
extended time . During this period certain events occurred
which will now be detailed.
Observing that the aforementioned units were in the yard
for a period, Martin Ballas , an officer of Respondent and
its chief steward at the United Sheet Metal shop, telephoned
Union Agent Strong and told the latter that there were some
Continental and Cambridge filter units in the United yard
that did not have union labels on them, and asked Strong
whether they were union made or not. According to Ballas,
Strong stated that he would have to look into the matter and
would let him know, but that Strong never did so.13 About
13 Strong did not testify to any telephone conversation with Ballas . Strong,
under cross-examination by the General Counsel, said that he first learned
of the situation when he visited the United premises concerning another
matter, sometime in November 1970, and at that time observed the units
sitting in the yard, but did not examine them to see if they had labels or not,
and made no mention of any conversation with Ballas . However, on cross-
examination by the Charging Party, Strong testified that, before going into
Keen 's office to talk about the other matters that prompted his visit to
United, he stopped in the shop to greet the men and that his steward,
presumably Ballas, told him there were "some filter racks out in the area";
that he responded, "Let's take a look at them"; and that nothing else was said
between them . Although Strong claimed throughout that the presence or
absence of a union label was immaterial , and whether the material was made
in union shop or not was of no consequence , he admitted that his reason for
wanting to look at the material was that he "wanted to see who made them,"
and when asked what relevancy the identity of the producer of the units had
in his thinking he replied that he wanted to find out "if there would be a
problem." Additionally, Strong admitted that when he examined the units
and found that they had not been made by sheet metal workers, this is what
convinced him that he had a grievance against United for the difference in
wages. How he ascertained that the units had not been made by sheet metal
workers, Strong did not explain . Quite obviously, if as he claimed he had to
examine the units to determine if they were made by sheet metal workers,
the answer must lay in the fact that the units did or did not bear a union label.
Indeed , at one point , because I regarded Strong's testimony so evasive, I
commented to Respondent's counsel, "I have to pass on certain issues here,
and I want to understand the testimony ," and told counsel , "I hope you
understand what I mean." This is but one of a number of examples in the
record which caused me to conclude that Strong was an evasive and unrelia-
mid or late November 1970, Strong discussed with Keen the
Cambridge and Continental units then in the United yard.
As United President Keen credibly testified, Strong then
told Keen that his members employed by United would not
handle the Continental and Cambridge units if they did not
bear a union label. Nothing further appears to have oc-
curred until apparently late January or early February 1971.
At that time strong, accompanied by United Shop Foreman
Ronzo and steward Ballas , went to Keen's office and told
the latter that United could use the Continental and Cam-
bridge units only if it would pay the difference between the
Union's contract wage scale and the wage scale under which
the filter units were produced. The group then went to the
yard where Strong, the shop foreman, and the steward coun-
ted the number of filter units and made an estimate of the
number of hours that would be required to fabricate the
filter frames here involved. While they were doing this,
Keen returned to his office. In a short while Strong, the shop
foreman, and the steward came back to Keen's office, and
Strong told Keen that he had estimated the number of hours
that would be required to fabricate the units in the yard, and
that while he did not know the exact wage rate paid at
Continental and Cambridge he could make a fairly accurate
estimate 14 and on that basis concluded that the amount
thus owed by United was $1,750,15 to be divided among all
the men working for United as of November 1. Later in this
conversation Strong mentioned that perhaps the money
could be contributed to a charity.1, Keen at this point un-
dertook to explain to Strong that prefabricated units were
required 07 the Airport jobs, being on a "base bid" basis, it
was useless to even ask for permission to substitute; and
that he had to supply the specific item called for, by trade
name and model number. Strong's response was that he
wasn't going to "let some damned engineer specify his men
out of work."
A day or two following the meeting in Keen's office when
Strong stated that the difference in wages amounted to
about $1,750, Strong, pursuant to the contract, filed a griev-
ance against United on February 1,1971, charging the latter
with violating Article 2, Section 2, and Article VIII, Section
2, of the contract. According to the grievance, the contract
violation arose from the fact that United "purchased and
had delivered to it certain filter racks manufactured by
Continental ... and Cambridge ... and claimed that several
union members lost work because of the violations, and
demanded they be made whole for the pay they lost and
damages for what the trust funds lost because said workers
did not work. The record does not indicate what, if any,
disposition was made of this grievance. Nor does the record
indicate whether the Continental and Cambridge filter units
were ever installed at the Lutheran Medical and Airport
jobs, or what adjustment, if any, was made of the dispute
regarding them.
ble witness, and that I should credit his testimony only in those instances
stated in fn . 7, supra.
14 Strong testified that as Continental and Cambridge were both produc-
tion shops, their wage rates would have to be considerably less than construc-
tion rates specified in Respondent's contract.
15 Ballas testified that the amount mentioned by Strong was "roughly"
$ 1,800. I deem it unnecessary to resolve the conflict.
i6 About 2 or 3 weeks later, Strong telephoned Keen and asked what the
latter thought of the hot lunch program for the elderly and suggested that,
if he wanted to know more about it, he should call a Mrs Hunt who was in
charge of the program.
17 My findings in this section are based on the credited testimony of Keen,
corroborated in part by the testimony of Ballas, a witness called by Respon-
dent. Strong's testimony regarding these events conflicts in many respects
with that of Keen, but as indicated I do not credit Strong.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Provisions of the Union's Constitution this Agreement, the Employer agrees that when sub-
contracting for prefabrication of materials covered
herein, such prefabrication shall be subcontracted to
fabricators who pay their employees engaged in such
fabrication not less than the prevailing wage for com-
parable sheet metal fabrication, as established under
provisions of this Agreement.
In view of this defense the Charging Party, Intervenor,
and Respondent, but not the General Counsel, introduced
considerable evidence relating to whether it was the custom
and practice in the industry for the contractor to purchase
filter units of the type here involved or to have them fab-
ricated in the sheet metal shops of the contractors. On be-
half of Respondent the evidence shows that, in virturally all
shops under contract with Respondent, members of the
Union have for many years fabricated for installation on the
jobsite filter racks of virtually every type and size. Indeed,
United President Keen testified that his Company has an
equipped shop and if supplied with adequate information it
can produce anything to be made of sheet metal. In some
instances, according to the testimony, in the shop or at the
jobsite, Joints or access doors of filter racks were sealed or
gasketed with neoprene or some similar material to make an
air tight joint and prevent air leakage, and from this Re-
spondent argues that filter racks produced by its members
in shops operated by the contractors were in all respects as
efficient and reliable as the units produced by Cambridge
and Continental. Members of Respondent who testified for
it on the subject of custom and practice readily admitted,
however, that the filter racks they produced were neither
tested nor rated for efficiency, and that their employers did
not have the equipment necessary for such tests, nor did
they have the knowledge or experience to conduct such
tests.
The Charging Party and the Intervenors contend that the
various sheet metal shops are unable to give reliable assur-
ance that they have the ability and technical knowledge to
produce filter units that will perform at the efficiency called
for by the several plans and specifications here involved.
James M. Mitchell, Jr., a registered professional mechanical
engineer , who specializes in designing and specifying for
air-conditioning systems, and whose education, training,
and experience is well demonstrated by the record, testified
that in critical areas such as hospital operating rooms, inten-
sive care units, or places where radioactivity, heavy smoke,
or gases were a problem, in short where the cleanliness of
the air is a critical factor, no engineer who is concerned with
his professional reputation and protecting the interest of the
owner of the structure being erected would consider accept-
ing a locally fabricated filter rack, but would insist upon a
unit that had been retested and determined to have an
efficiency rating adequate to accomplish the result for
which the building had been designed and was being con-
structed. Mitchell freely conceded that a locally fabricated
filter rack might in fact perform as well as, or perhaps even
better than, the specified factory prefabricated unit, but that
there was no satisfactory way of testing the locally fabricat-
ed rack before putting it to use, and in the event it failed to
perform properly there was no recourse, whereas the factory
fabricated unit was warranted and, if it failed to perform in
accordance with its ratings, the factory would correct the
difficulty with the unit or provide another that would per-
form in accordance with the ratings.19
19 Joseph Maroun, called by Respondent as an expert witness , testified in
substance that the only function of the filter rack was to hold the filter, and
so long as air did not bypass the filter the rack played no part in the efficiency
of the unit, that he knew of no way that the factory could test the efficiency
of a unit because the racks must be altered on the jobsite to be accommodat-
In support of his contention that the Union's activity was
not directed at the preservation of work for its members, but
rather at promoting a campaign to boycott products that
did not bear the label of its international Union, the Gener-
al Counsel cites and relies upon certain provisions of the
International's constitution. The General Counsel points to
Section 10 thereof which makes it "the obligation and re-
sponsibility" of every local union and every member of the
International to comply with the provisions of said consti-
tution, and to
refrain from any conduct which interferes with the per-
formance by the Association or its subordinate units .
.. from any conduct which defeats or is designed to
defeat or subvert the lawfully declared and established
policies and objectives of this Association ....
Article 23, Section 1, of the constitution provides for the
design and issuance of a union label with markings that the
local unions to whom it is distributed may identify. Section
4 of the same Article strictly limits the use of the label to:
union-made products, manufactured, assembled
and fabricated by none but good standing members of
a local union affiliated with this International Associa-
tion and all members must recognize such union label.
No local union label of this Association shall be applied
to any sheet metal work that has not been so manu ac-
turecassembled and fabricated [emphasis supplied].
Section 7 of the same Article requires every local union to:
. urge and encourage the use of union labels on all
strictly union-made sheet metal products, and shall
urge and educate the public to demand the union label
as a guarantee of first class workmanship performed by
union labor.
And finally Article 24, Section 1, provides that no enterprise
shall be considered "a union sheet metal shop" or "a union
sheet metal business," unless:
. the owners sign and remain parties to an agree-
ment with the local union of this Association in whose
jurisdiction such shop or business is located.18
Union's Defense of Work Preservation
Although Respondent argues that at no time material did
it induce or encourage any employee to refuse to handle the
filter units, or threaten , coerce, or restrain any person, which
alone would preclude a finding that Section 8(b)(4)(B) of the
Act was violated , it argues also that the facts fail to establish
that it had the proscribed cease doing business object, be-
cause under the Supreme Court's holding in National Wood-
work Manufacturers Association v. N.L.R . B., 386 U.S. 612,
its sole object was to preserve work for its members which
they had traditionally performed . In support of this argu-
ment Respondent relies in part upon Article II of the con-
tract, which provides:
Section 1. No Employer shall subcontract or assign
any of the work described herein which is to be per-
formed at ajobsite to any contractor , subcontractor or
other person or party who fails to agree in writing to
comply with the limitations , those relating to union
security, rates of pay and working conditions, hiring
and other matters covered hereby for the duration of
the project.
Section 2 . Subject to other applicable provisions of
18 Although afforded an opportunity to show that the constitutional provi-
sions should not be interpreted as the General Counsel contends, Respon-
dent did not submit such testimony.
SHEET METAL WORKERS, LOCAL 223 65
CONTENTIONS AND CONCLUSIONS
1. The Parkway, Palmetto, Lutheran Medical,
and Airport jobs
(a) Upon consideration of the entire record, I find and
conclude that Respondent's conduct constituted the induce-
ment and encouragement of the employees of the sheet
metal contractors involved on thesejobs which is proscribed
by Section 8(b) (4)(i) of the Act. I reach this conclusion for
the following reasons:
(i) At the Parkway job Valdestri told Union Air Manager
Eden in the presence of its member, Hanshaw, employed by
Union Air, that the men would not install products that did
not carry the union label.
(ii) On the Palmetto job, Valdestri told Eden that, while
he (Valdestri) was away from the office, some of the men
on the Palmetto job had called Union Manager Strong to
ask if they should handle the Cambridge units that did not
bear union labels, and that Strong, not knowing of the set-
tlement made on the Parkway job, instructed the men not
to accept or handle them.
(iii) Although Valdestri claims that he told the employees
on the Parkway job to install the units whether they had a
label or not, and that if need be the Union would file a
grievance, but that the men persisted in their refusal to
handle nonlabeled products, telling Valdestri to "go to
hell," it is significant to note that, as soon as Union Air paid
the money which Valdestri claimed was due, the men
promptly installed the units notwithstanding the fact that
the basis for their refusal to handle-the absence of union
labels-still existed . Where union members simultaneously
refuse to perform services for a stated reason, and after
objections voiced by their union have been satisfied, such
members abandon their refusal to perform services without
the basis for their initial refusal being satisfied, it is reason-
able to infer, as I do, that their union ratified if it did not
authorize the initial refusal to handle, and is therefore re-
sponsible for such initial refusal to perform services . Cf. Los
Angeles Building and Construction Trades AFL et al., 105
NLRB 868, 872. Moreover, the events of this incident follow
the same plan or pattern which Respondent followed in
incidents heretofore and hereafter referred to, and with re-
spect to which direct evidence of inducement exists.
(iv) Under the circumstances of this case, I must and do
find and conclude that the conversation between Union
Agent Tucker and United employee Frederick, wherein the
latter was told that there was a problem with the Continen-
tal units that had not been straightened out, constituted the
inducement or encouragement proscribed by Section
8(b)(4)(i) of the Act. Tucker must have known that what he
told Frederick would be communicated by the latter to his
fellow employees on the job, and if not an outright order to
refuse to handle Continental products was at the very least
an attempt to influence or persuade them not to do so. This
is sufficient to constitute inducement or encouragement.
International Brotherhood of Electrical Workers, Local 501 v.
N. L. R. B., 341 U.S. 694,70 1-702.
ed and connected to the ducts ; that factories guarantee only the efficiency
of the filter , never that of the rack , except that it will hold the filter and for
structural defects, and that the sheet metal shop can do that just as well; that
if the unit is properly installed and sealed against air leaks the air must flow
through the filter , and perform properly; and that the only reason that occurs
to him for an architect or engineer to specify a factory prefabricated rather
than a unit locally fabricated is that the latter is more expensive . In the view
I take of this case it is unnecessary to decide whether the testimony of
Mitchell or Maroun is the more accurate.
(v) Although there is no direct testimony that the three
employees involved in the Airport incident did in fact tele-
phone the union hall and receive instructions what they
should do with respect to Cambridge units, the fact that they
returned to the truck and accepted the boxes in which the
filter portions of the units were packed, but declined to
accept the rack portion of the units, fitting so precisely into
the Union's pattern of conduct, as herein found, as to make
it reasonable to infer, as I do, that the United employees at
this job did telephone the union hall for advice, and that
their action in accepting art and rejecting part of the ship-
ment was in strict accordance with to advice they received
from the Union. That such action on the part of the Union
constituted the proscribed inducement and encouragement
is clear , as I have heretofore indicated.
(vi) As heretofore found Ballas , Respondent's steward at
the United shop, telephoned Union Business Manager
Strong, telling the latter about the presence of Continental
and Cambridge units that did not have union labels, and
asking whether they were union made or not, and that
Strong told Ballas he would look into the matter and let him
know, but did never did so. Strong's extended failure to
respond to Ballas' inquiry was but another way of telling
him that the Continental and Cambridge units were, in the
Union's view, "hot" and should not be handled, and Strong
subsequently reiterated the same message when he told
United President Keen, in the presence of Ballas and Shop
Foreman Ronzo, that United could use the units in question
only if it would pay approximately $1,750 for division
among the men or as a contribution to a charity, that sum
being the estimated difference between what the United
employees would have earned had they fabricated the units
under Respondent 's wage scale and the wage scale at which
the Cambridge and the Continental emplo yees were paid.
The "message" Strong thus conveyed to Ballas, and through
him to the other employees of United, I likewise find to be
the inducement or encouragement proscribed by Section
8(b)(4)(i).
(b) I also find and conclude that Respondent threatened,
coerced, and restrained Union Air and United, by the fol-
lowing:
(i) The inducement and encouragement above found hav-
ing caused employees of Union Air and United to refuse in
the course of their employment to perform services for their
respective employees, said conduct to that also constituted
restrains and coercion of said employers. Ralph H. McClain,
et at, 158 NLRB 1101, 1106.
(ii) Valdestri's statement to Eden , general manager of
Union Air, and Strong's statement to United President
Keen that Respondent's members would not handle or in-
stall filter racks that did not bear the union label. Cincinnati
Sheet Metal & Roofing Company, A/K/A Ajax Company, 174
NLRB No. 22.
(iii) Filing the charges on February 9, 1971, pursuant to
the grievance procedure of the contract, alleging that
United violated Article II, Section 2, and Article VIII, Sec-
tion II, of the contract because it purchased filter racks from
Continental and Cambridge . Because I find and conclude,
as hereafter set forth, that Respondent's object was second-
ary in nature, and said grievance was filed in furtherance of
that objective, it constituted the restraint and coercion pros-
cribed by Section 8(bx4)(ii). Cincinnati Sheet Metal & Roof-
ing Company, A/K/A Ajax Company, 174 NLRB No. 22,
enfd. as modified 433 F.2d 1189 (C.A.D.C .); Cincinnati
Sheet Metal Rooting Company, A/K/A/Ajax Company, 174
NLRB No. 125, enfd. 425 F.2d 730 (C.A. 6); East Bay
Counties Dry Cleaners Association, 167 NLRB 45, 50-51.
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Centex-Winston
Based on his contention that Gershowitz was the Union's
steward on the Centex-Winston job, and that Respondent
was therefore responsible for his actions, the General Coun-
sel argues that Section 8(b)(4)(i) and (ii) was violated by (1)
the work stoppage that Gershowitz instigated, and (2) his
threat to Gelfand to engage in further work stoppages if the
latter attempted to use products which did not bear a union
label. However, in my view, it is unnecessary to consider the
foregoing contentions of the General Counsel . Assuming
without deciding that Respondent is not responsible for
what Gershowitz did, it is clearly responsible for the con-
duct of its business manager and , upon consideration of the
entire record, I find and conclude that Strong threatened,
restrained, and coerced Gelfand , within the meaning of
Section 8(bx4)(ii), by the following:
1. Strong's statements to both Lenny and Abraham Gel-
fand that sheet metal items which the latter normally pur-
chased from various supplies could no longer be used on
Gelfand's job because they did not have union labels on
them, and if Gelfand persisted in using sheet metal products
which did not bear the union label, any job they worked
would be picketed and a work stoppage would result.
2. Strong's statements to Abraham Gelfand that he would
continue to pressure the latter , would continue to file griev-
ances against him, and would do what he could to put him
out of business , as well as the filing of the grievance against
the latter on October 28, 1970. All of these, I find and
conclude, were threats of economic action against Gelfand
unless the latter succumbed to the Union's demand that
Gelfand cease using the goods of any producer whose prod-
ucts did not bear what Respondent regarded as the proper
label and constituted the threats , restraint , and coercion
proscribed by Section 8(bX4)(ii) of the Act.
The Object
Having reached the conclusion that Respondent engaged
in conduct proscribed by Section 8(b)(4)(ii) and (ii) of the
Act, it becomes necessary to determine whether that con-
duct had the cease doing business object roscribed by
Section 8(b)(4)(B), as the General Counse?contends, or
whether, as Respondent contends , its activity was directed
solely at protecting and preserving the work opportunities
of its employee members.
In National Woodwork Manufacturers Association v. N.L.
R.B., 386 U.S. 612, the Supreme Court held that neither
Section 8 (e) nor Section 8(bX(4XB ) of the Act has any apph
cation to union conduct or contractual provisions which
have as their sole purpose the protection of the economic
interests of employees by preserving their unit work. On the
other hand , the Court made it clear that both sections of the
Act apply where a contractural provision , or a union's con-
duct, indicates that its purpose is "to satisfy union objectives
elsewhere" (id. at 644). To determine whether the contrac-
tual provision , or particular conduct, falls on one side of
the line or the other , "The touchstone is whether [the
Union's conduct] is addressed to the labor relations of the
contracting employer vis-a-vis his own employees" (386 U.S.
645), or as stated somewhat differently by the Court of
Appeals for the District of Columbia in Orange Belt District
Council o Painters No. 48, AFL-CIO v. N.L.R.B., 328 F.2d
534, cite with approval by the Supreme Court in National
Woodwork v. N.L.R. B., 386 U .S. at 645 , fn. 40:
. the test as whether the clauses [or conduct] are
"germane to the economic integri of the principal
work unit," and seek "to protect and preserve the work
and standards [the Union] has bargained for," or in-
stead "extend beyond the [contracting ] employer and
are aimed really at the union's difference with another
employer." [328 F .2d at 538.]
App 14 the facts of the instant case to the above-stated
principles, I am convinced, and therefore find and con-
clude, that Respondent was not motivated by the protection
of work for its members or the protection of the work stan-
dards for which it bargained , but rather by the fact that it
wanted to prevent the use of products that did not bear the
label of International Sheet Metal Association . I am per-
suaded to this conclusion by the fact , as I have found, that
Strong told Keen and Gelfand that Respondent 's members
would not install products that did not bear the label of the
International Union , and Valdestri not only told Eden the
same thing , but added that, though Eden was free to pur-
chase rather than fabricate filter units , he had to purchase
those which bore the proper union label. Assuming that the
Union could have validly refused to handle the products
here involved in order to preserve or recapture for its mem-
bers work they traditionally performed ,Respondent did not
base its refusal on that ground . Instead , asI have found, it
based its refusal on the ground that the products did not
have a proper union label. In doing so Respondent was not
addressing itself to the labor relations of Gelfand, Union
Air, and United , vis-a-vis their own employees respectively,
but rather to satisfy union objectives elsewhere , namely the
labor relations of the manufacturers of the unlabeled prod-
ucts, and hence its conduct was unlawful . A. S. Abel Compa-
ny, 183 NLRB No. 99 . In this posture, what this case
presents is the typical product boycott where the employees
of A are directed by their union not to handle products
produced by B, not because of A's labor policies , but be-
cause B is following labor practices to which the Union
objects , and seeks to force B to abandon . In that sense the
union's dispute would be with B, and its activity directed
against A is secondary in nature-one in which A not only
lacks any interest, but has no power to correct except by
ceasing to use B 's product . That such action on the part of
Respondent violated Section 8 (b)(4)(i) and (ii)(B) of the Act
is settled . N.L.R.B. v. Washington -Oregon Shingle Weavers'
District Council, etc., 211 F.2d 149 (C.A. 9).
Having found and concluded that Respondent's pressure
on Gelfand was secondary in character , if follows that Arti-
cle II , Section 2 , and Article VIII , Section 2, of the contract
between Respondent and Gelfand , set forth above, were
applied and sought to be enforced by Respondent in a
manner which violates Section 8 (e) of the Act . I so find and
conclude . Cincinnati Sheet Metal & Roofing Company, 174
NLRB No. 22 , enfd . as modified 433 F .2d 1189 (C.A.D.C.);
Cincinnati Sheet Metal Roo /'in Company, 174 NLRB No.
125, enfd . 425 F .2d 730 (C.A. 6). In both cases the identical
contractural provisions involved in the instant case were
found violative of Section 8(e) because they were improper-
ly implemented.20
Upon the foregoing findings of fact and the entire record
in the case, I make the following:
20 In view of the conclusions reached I find it unnecessary to considerand
do not decide ( 1) whether the Board's so-called right of control test (See
discussion in A. S. Abel Company, supra, of the Board's decision in J. L.
Simmons Company, Inc, 178 NLRB No. 54, and the cases cited at fn.,15),
is applicable to the instant case , or (2) whether, as the Intervenors and
Charging Parties contend, the Continental and Cambridge units were prod-
ucts having such different characteristics as to be beyond what Respondent's
members have constructed in the past ; or (3) whether Respondent's members
have the ability or technical knowledge to build such a product. Under the
facts of this case all of those questions are irrelevant to the issues which I
regard as dispositive of the case.
SHEET METAL WORKERS , LOCAL 223 67
CONCLUSIONS OF LAW
1. Union Air, United, Gelfand, Continental, and Cam-
bridge are persons engaged in commerce and an industry
affecting commerce, within the meaning of Sections 2(1),
(6), and (7) and 8(b)(4)(B) of the Act.
2. Respondent is a labor organization within the meaning
of Sections 2(5), 8(b)(4)(B), and 8(e) of the Act.
3. By inducing and encouraging individuals employed by
Union Air and United to refuse in the course of their em-
ployment to handle or work on the products of Continental
or Cambridge, and by threatening, coercing, and restraining
Union Air, United, and Gelfand, with an object of forcing
or requiring Union Air and United to cease using, handling,
or otherwise dealing in the products of Continental and
Cambridge, or to cease doing business with Continental or
Cambridge, and forcing or requiring Gelfand to cease using,
handling, or otherwise dealing in the roducts of East Coast
Supply Company, Intercoastal, Inc., -Southern Metals, Inc.,
and other producers of metal products not bearing a union
label, or to cease doing business with such persons, Respon-
dent engaged in and is en aging in unfair labor practices
proscribed by Section 8(b)(4)(i) and (ii)(B) of the Act.
4. By maintaining, enforcing, and giving effect to Article
II, Section 2, and Article VIII, Section 2, of the Standard
Form of Union Agreement, entered into by Respondent
and Gelfand on or about May 21, 1970, Respondent entered
into an agreement which, as administered by Respondent,
requires Gelfand to cease and refrain from handling, using,
or otherwise dealing in the products of East Coast Supply
Company, Intercoastal, Inc., Southern Metals, Inc., and
other producers of metal products not bearing a union label,
or to cease doing business with such persons, and thereby
engaged in and is engaging in unfair labor practices pros-
cribed by Section 8(e) of the Act.
5. The aforesaid unfair labor practices are unfair laborpractices affecting commerce within the meaning of Section2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices proscribed by Section 8(e) and 8(b)(4)(i) and
(ii)(B) of the Act, it will be recommended that it be ordered
to cease and desist therefrom, and to take certain affirma-
tive action designed and found necessary to remedy the
unfair labor practices found, and to effectuate the policies
of the Act. Although the contract between Respondent and
Florida East Coast Sheet Metal Contractors Association,
Inc., and by which Union Air and United are bound, con-
tains the identical provisions that are in the contract with
Gelfand, and which have been found to have been unlaw-
fully implemented, I have not made a finding that the con-
tract with the Association was unlawfully implemented so
as to violate Section 8(e), even though the Union's pressure
on Union Air and United took virtually the same form and
had the same object as the pressure on Gelfand. I have done
so chiefly for the reason that no 8(e) charge was filed and
the complaint contained no allegations in that regard so far
as Union Air, United, or any other member of the Associa-
tion is concerned. However, because the evidence does
show the nature and object of Respondent's activity against
Union Air and United, it is reasonable to infer that there
exists the likelihood that Respondent will extend its unlaw-
ful activity to other employers, unless a broad order is is-
sued, which I shall recommend, to prevent it from doing so
as was done in Cincinnati Sheet Metal & Roofing Company,
174 NLRB No. 22, enfd. as modified 433 F. d 1189 (C.A.
D.C.)
[Recommended Order omitted from publication.]