Ohio Valley Carpenters District Council

National Labor Relations Board - Board Decisions

Apr 11, 1962

136 N.L.R.B. 977 (N.L.R.B. 1962)

OHIO VALLEY CARPENTERS DISTRICT COUNCIL, ETC. 977
the said employers or any other employer or person to cease doing
business with C. R. Sheaffer and Sons.
WE WILL NOT threaten, coerce, or restrain Safeway Stores, In-
corporated, or American Stores Company or any other employer
or person engaged in commerce or in an industry affecting com-
merce, with an object of forcing or requiring such -employers or
any other employer or person to cease doing business with C. R.
Sheaffer and Sons.
WAREHOUSE EMPLOYEES UNION, LOCAL 730,
INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 707 North Calvert St., Sixth Floor, Baltimore, Maryland, Tele-
phone Number Plaza 2-8460, Extension 2100, if they have any ques-
tion concerning this notice or compliance with its provisions.
Ohio Valley Carpenters District Council , United Brotherhood
of Carpenters and Joiners of America , AFL-CIO, and Russell
White and George Osterkamp, its agents and Cardinal Indus-
tries, Inc.
Ohio Valley Carpenters District Council, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO and Cardinal
Industries , Inc. and Willard E. Hankins and Joseph L. Hankins,
Co-Partners doing business as Hankins & Hankins Construc-
tion Company, Party to the Contract
Ohio Valley Carpenters District Council, United Brotherhood
of Carpenters and Joiners of America , AFL-CIO and Cardinal
Industries , Inc. and The Jewel & Honor Joint Venture, Party
to the Contract. Cases Nos. 9-CC-288, 9-CE-6-1, and 9-CE-6-2.
April 11, 1962
DECISION AND ORDER
On December 4, 1961, Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
,136 NLRB No. 89.
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices alleged in the complaint , and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in
the Intermediate Report attached hereto. The Trial Examiner also
found that the Respondent had not engaged in certain other alleged
unfair labor practices, and recommended that those allegations of the
complaint be dismissed. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connections with this case to a three-mem-
ber panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record in
this proceeding, and hereby adopts the findings,' conclusions,2 and
recommendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.'
1 We agree with the Trial Examiner that it is unnecessary to dispose of the 8(e) and
8 (b) (4) (ii) (A) allegations of the complaint based on the Hankins' contract because their
disposition would not affect the scope of our remedial order herein. However, we specifi-
cally neither adopt nor pass upon the Trial Examiner's comments respecting these issues,
at III, E, (3), paragraph 3, and footnote 16 of the Intermediate Report.
2 In footnote 9 of the Intermediate Report the Trial Examiner rejects the Respondent's
contention that the only restriction of the Council's contract with Jewel is that wages and
conditions of out-of-unit employees must meet the contract standards and finds that it
has been construed to require that work be done at least by "outside carpenters" repre-
sented by the Council and within the Council's geographical jurisdiction. Accordingly,
we construe the Trial Examiner's conclusion as being limited to the facts found to exist
in this case insofar as he holds that that contract relating to the cutting, fitting, and
erection of all framing and concrete forms violates Section 8(e) to the extent it requires
that offsite production be "by outside carpenters who are members of or are represented
by the Council and/or are employed under the Council's contract conditions "
3In the notice attached to the Intermediate Report marked "Appendix," the following
sentence is to be added as the last paragraph: Employees or members may communicate
directly with the Board's Regional Office, 6 East Fourth Street, Cincinnati, Ohio, tele-
phone number Dunbar 1-1420, if they have any question concerning this notice or com-
pliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges filed by Cardinal Industries , Inc., against the Union and its agents
above named , herein the Respondents in Case No . 9-CC-288 on April 24, 1961, and
in Cases Nos. 9-CE-6-1 and 9-CE-6-2 on May 3, 1961 , the General Counsel issued
a complaint in the above -entitled duly consolidated proceeding alleging that the
Respondents had engaged in unfair labor practices affecting commerce within the
meaning of Section 8(e) and 8 (b)(4)(ii)(A) and (B) and Section 2(6) and (7)
of the National Labor Relations Act, as amended . The Respondents filed an answer
denying the commission of the alleged unfair labor practices . A hearing was held
before Arthur Leff, the duly designated Trial Examiner, at Cincinnati , Ohio, on
July 13, 1961. At the conclusion of the hearing oral argument was conducted on
OHIO VALLEY CARPENTERS DISTRICT COUNCIL, ETC. 979
the issues of the case. The General Counsel and the Respondents filed briefs with
the Trial Examiner on August 30, 1961.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE COMPANIES INVOLVED AND THEIR BUSINESSES
Cardinal Industries, Inc. (Cardinal)-the Charging Party herein-is an Ohio cor-
poration with its principal place of business at Columbus, Ohio, where it is engaged
in the manufacture and distribution of prefabricated and preassembled buildings and
building parts. Its annual gross sales exceed $4,000,000, of which more than
$50,000 represent shipments in interstate commerce.
Park Town Corporation One is the sponsor of an urban renewal multiple dwelling
housing project, herein called the Jewel project, being erected at Cincinnati, Ohio,
with the aid of Federal Housing Administration financing.
Jewel Builders, Inc., and Honor Corporation, Ohio corporations, are engaged in a
joint venture, known as The Jewel & Honor Joint Venture (Jewel), as general con-
tractors in the construction of the Jewel project under a contract with Park Town
Corporation One. Jewel's annual direct inflow of materials and supplies on said
project from sources outside the State of Ohio exceeds $50,000 in value.
The Hamilton Company (Hamilton), of Cincinnati, Ohio, is a multistate general
contractor. Hamilton annually performs services outside the State of Ohio in excess
of $50,000. At times material herein, Hamilton was engaged as the general con-
tractor of a building project in Cincinnati, Ohio, known as the Findlater Gardens
Addition.
Hankins & Hankins Construction Company (Hankins), a copartnership composed
of Willard E. Hankins and Joseph L. Hankins, is a carpenter contractor in the build-
ing and construction industry. At times material herein, Hankins was engaged at the
Findlater Gardens Addition as a carpenter subcontractor under a contract with
Hamilton calling for work by Hankins valued at more than $50,000 annually.
The Dever Heating Company of Ohio, Inc. (Dever), is an Ohio corporation en-
gaged in the building and construction industry as a heating and air-conditioning
subcontractor, and at times material herein performed services as such for Hamilton
at the Findlater Gardens Addition. During the 12-month period preceding the
isusance of the complaint, Dever furnished materials and supplies to Hamilton valued
in excess of $50,000.
The complaint alleges, the Respondents now concede, and it is found that Cardinal,
Jewel, Hamilton, Hankins, and Dever each is an employer as defined in Section 2(2)
of the Act, engaged in commerce and/or in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION AND ITS AGENTS HEREIN INVOLVED
Ohio Valley Carpenters District Council , United Brotherhood of Carpenters and
Joiners of America , AFL-CIO, herein called Council , is a labor organization within
the meaning of Section 2(5) of the Act. The individual Respondents in Case No.
9-CC-288 , Russell White and George Osterkamp , are respectievly the business agent
and district secretary of the Council and as such are agents of the Council.
IN. THE UNFAIR LABOR PRACTICES
A. The issues
The complaint contains three counts. Two allege violations of Section 8(e) and
the other of Section 8(b)(4)(ii)(A) and (B).
The alleged 8(e) violations stem from two collective-bargaining agreements, both
identical in form, entered into by the Council with Jewel and with Hankins, respec-
tively, as well as from an addendum to the Jewel agreement. The collective-
bargaining contracts, as part of article III thereof, contain the following provisions:
Hardware for metal windows set in wood frames is to be applied by carpenters.
All framing and concrete forms are to be cut, fitted and erected by outside
carpenters of this jurisdiction.
In addition, the addendum to the Jewel contract contains, inter alia, the following
provision:
Gang nail trusses fabricated offsite with Ohio Valley District Council Members.
Men involved Sawyer & Fabricators. No labor.
641795-63-vol. 136-63
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the quoted provisions from the Jewel contract -and addendum
thereto, the complaint alleges, and the answer denies, that the Council and Jewel
have construed, interpreted, and given effect to such provisions as requiring (a) that
"hardware for metal windows set in wood frames, when performed away from the
project site, shall be performed only by members of or employees represented by
Council"; (b) that "all framing and concrete forms done at the project site must be
cut, fitted and erected only by members of or employees represented by the Council";
and (c) that "prefabricated materials produced off the project may be used in con-
struction at the project site only if made or produced by members of or employees
represented by the Council." With respect to the quoted provisions from the Hankins
contract, the complaint makes the same allegations, limited, however, to (a) and
(b), above. The complaint alleges generally that by force of such provisions, as
interpreted and construed by the contracting parties, Jewel and Hankins "have each
agreed to cease and refrain . . . from handling, using or otherwise dealing in the
products of employers, and from doing business with persons who do not employ
members of or employees represented by the Council, including Cardinal."
The 8(b) (4) (ii) (A) and (B) count alleges in substance that the Council and the
individual Respondents engaged in an unfair labor practice within the meaning of that
secton at the Findlater Garden Addition housing project on November 15, 1961, when
they invoked the Council's contract with Hankins to restrain Hankins from completing
at that jobsite the erection of a prefabricated toolshed which Dever, a subcontractor
at that project, had purchased from Cardinal.
B. The Council; its standard contract
The Council is composed of some 17 local affiliates of the United Brotherhood of
Carpenters and Joiners of America. Its territorial jurisdiction embraces Hamilton,
Clermont, and Brown Counties in Ohio, and Kenton, Campbell, Boone, Bracken,
Grant, and Pendleton Counties in Kentucky.' The Council acts for its member
locals in their business dealings with employers in the building construction industry.
It periodically negotiates agreements with the Building Division, Cincinnati Chapter,
Associated General Contractors of America, Inc. (AGC). As recited in such agree-
ments, the AGC acts "as negotiating agent only, for each employer who hereafter
signs this agreement or a true copy thereof." The AGC-negotiated agreements define
the work jurisdiction and fix the hours, wages, and terms and conditions of employ-
ment of Council-represented carpenters who perform work on construction within
the area of the Council's geographical jurisdiction All employers of such carpenters
who desire to enter into contractual relations with the Council are expected to
execute the Council's standard form of agreement as negotiated with the AGC. The
standard area agreement establishes by its terms a separate appropriate bargaining
unit for the carpenter employees of each employer who becomes a signatory. This
is apparent from the recognition article which provides: "The Employer recognizes
the Union as the sole and exclusive bargaining representative of all employees in the
employ of the Employer. .
Article III of the standard agreement defines the work tasks or work jurisdiction
that is assigned and reserved to carpenters under the contract. That article-with the
clauses in issue italicized-reads in full as follows:
BASIC CLASSIFICATION-It is understood that the outside carpenter journeymen'
shall cut or mortise for locks, dado base, mitre or cope picture moulding, stop
beads or any loose members of parts of wood to be erected on buildings. All
wood sash and doors must be fit and hung in place at the opening. Hardware
and fittings for wood doors shall be applied at the opening. Hardware for
hollow metal doors will be applied at the opening but locks may be applied at
the factory.
Hardware for metal windows set in wood frames is to be applied by carpenters.
All framing and concrete forms are to be cut, fitted and erected by outside
carpenters of this jurisdiction
After materials are unloaded at the job and moved to various final stock
piles or others, as designated by the Employer, such materials shall be handled
by the carpenters?
i The only Carpenters' local in that area not affiliated with the Council Is Local 2973,
which represents employees of the Norwood Sash & Door Company. That local is serviced
directly by the International
2 The agreement defines carpenters as "all employees of the Employer coming within
the jurisdiction of the United Brotherhood of Carpenters and Joiners of America." There
is no requirement that such employees be members of the Union when employed. There Is,
OHIO VALLEY CARPENTERP2 DISTRICT COUNCIL, ETC. 981
Certain of the provisions of article III quite clearly relate to work tasks that can
only be done at the building construction jobsite. That is true of the first and
fourth paragraphs contained in that article. With respect to those provisions no
question is raised in this proceeding as to their validity under Section 8(e).
The language of the second paragraph of article III is perhaps not entirely free
from ambiguity on the point of whether it does more than simply define a jobsite
work task. It will be recalled that the complaint alleges that this clause is inter-
preted and applied "as requiring that hardware for metal windows set in wood
frames, when performed away from the construction site, shall be performed only
by members of or employees represented by the Council." But the General Counsel
at the hearing offered no evidence to support that allegation. With regard to the
intent and meaning of the clause, we have only the undisputed testimony of George
Osterkamp, the Council's district secretary. As appears from his testimony, it is
usual for manufacturers when shipping metal windows to a construction site to ship
the hardware parts (locks, handles, turners) in a separate package Where the
metal windows are to be set in wooden frames, the job of installing the hardware
parts is considered to fall within the work jurisdiction of Carpenters. Where, on
the other hand, they are to be set directly in openings of the masonry walls or in
metal frames, they are regarded as coming within the work jurisdiction of another
craft. The "hardware" clause was originally written into the Council's contract,
and has since been preserved in it, to clarify and have settled by contract any
question that might otherwise arise as to when and under what conditions the job
of applying the hardware must be assigned at the jobsite to carpenters rather than
to members of another building trade. The clause, further according to Osterkamp,
is also designed as a work protection provision, to protect the Carpenters' historical
claim to have such work done by outside carpenters at the construction jobsite.
Situations occasionally arise when the Council does not insist on its rigid enforce-
ment; for example, when Government specifications may require prior installation
by the manufacturer, or when, because of the character of the required installation,
it is not feasible for outside carpenters to perform such work Under normal cir-
cumstances, however, Coancil carpenters would not handle metal windows for
wooden frames were they to come in with the hardware already installed. But the
Council's concern here is not with who does the installation at the window manu-
facturer. Its sole concern is to protect from infringement by others the perform-
ance of work tasks which on historical grounds it considers to be a function of
outside carpenters at the construction jobsite, just as, for example, it considers it to
be the function of outside carpenters to apply hardware for wood doors at the
openings in which the doors are placed.
The third paragraph of article III contains the key work jurisdictional provision
at issue in this case. The term "framing" is interpreted by the Council to take in
all work involved in the cutting of any rough dimensional lumber used on a con-
struction site and in the fitting, fashioning, and erection of the wooden frame of a
building, including the walls, roof, rafters, inside partitions, and joists .3
The contract does not in terms require that the cutting, fitting, and erection of
framing and of concrete forms must be done either at the actual site of construction
or by the employees of the particular employer who is the signatory to the contract
It simply designates the class of employees who must perform such work under the
conditions of the contract-that is, outside carpenters in the area of the Council's
territorial jurisdiction Although the Council perhaps normally anticipates that
the work will be done at the jobsite, it does not insist on this in all cases. Nor does
it construe its standard contract as prohibiting, per se, the use at a construction
jobsite of framing components or concrete forms that have been precut, prefitted,
or preassembled prior to delivery to the jobsite either by the contractor himself or
by a subcontractor or supplier of prefabricated materials In fact, it is a common
practice in the area for contractors with whom the Council deals to have their
concrete forms prefabricated in an offsite shop which employs outside carpenters
who are employed under standard contract conditions. Where prefabrication is
done within the Council's jurisdictional area by a contractor or subcontractor who
however, a conventional union shop provision and a further provision giving area eni-
ployees preference in employment "without regard to union membership." According to
the testimony, the term "carpenters" wherever used in the agieement is intended to refer
to "outside carpenters" who do construction work, as distinguished from "inside car-
penters," or milihands, who work in shops
'It does not, however, include items , such as doors , sash, factory built stairs, and
cabinets , which have gained common acceptance in the industry as millwork items that
are normally prefabricated offsite by "inside carpenters "
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employs outside carpenters for that purpose and who otherwise abides by the area
contract as to terms and conditions of employment , the Council reads the contract
as allowing the jobsite carpenters it represents to handle and erect the prefabricated
components . But its view is different where such prefabrication has not been done
under the contract's conditions . It then reads the contract as precluding a signatory
contractor from using such materials at the site of construction and views any
attempted use by him as a contract violation . In the latter situation , it will not
allow its carpenters at the jobsite to handle such materials or perform further work
on them . All this appears from Osterkamp 's testimony as given at the hearing.
C. Specific events relating to the Council 's contract with Jewel and bearing further
on the meaning and application of the contractual provisions in issue
As stated above , Jewel is engaged as the general contractor in the erection of a
large urban renewal housing project . Construction work began in September 1960,
but it was not until the end of the year that the project advanced to the stage where
Jewel actually had need for carpenters.
During September and early October , a number of meetings were held between
representatives of Jewel and representatives of the Council . The project was such
as to require Jewel to look to the Council for the referral of qualified carpenters.
Jewel desired to enter into a collective -bargaining agreement with the Council so as
to permit such referral . The early discussions were centered about the manner in
which Jewel planned to operate the job and the conditions under which the Council
would be willing to contract with Jewel.
The building plans and specifications called for gang nail trusses in the roof
structure . Jewell pointed out that it was not practical to have such work done at the
construction site because of the nature of the equipment involved .4 Jewel also
informed the Council that it desired to have other framing components prefabricated
at offsite shops where the work could be done more economically . Indeed, Jewel
had already asked for cost estimates for the production of trusses and other pre-
fabricated framing components from two companies-Cardinal Industries, Inc.
(the Charging Party in this case) and Norwood Sash & Door Manufacturing
Company
Cardinal is located at Columbus , Ohio , outside the Council's territorial jurisdiction,
where it is engaged in the manufacture of prefabricated building components for
residences and commercial buildings . At its plant of some 75 ,000 square feet, it
employs approximately 150 employees , classified as "inside carpenters " or millhands.
Cardinal 's employees are represented under a collective -bargaining agreement by a
Columbus, Ohio, local of the United Brotherhood of Carpenters. Norwood is
located in Cincinnati . It is engaged in the sale of lumber and millwork materials,
as well as in the production of prefabricated building components and trusses. It
has a plant of approximately 50,000 square feet , which includes machinery and
equipment for the production of gang nail trusses . Norwood's employees , classified
as millhands , are represented by Local 2973 of the United Brotherhood of Carpenters.
The Norwood Local is not affiliated with the Council but is serviced directly by the
United Brotherhood . The wage rates of Cardinal 's and Norwood 's employees are
very substantially less than the wage rates of outside carpenters as fixed by the
Council's standard contract.
The Council refused to accede to Jewel's request that it be allowed to have
trusses and other framing sections prefabricated at offsite shops employing " inside
carpenters." It made clear that it considered all cutting and assembling of framing
material to be work belonging to its outside carpenters and that its carpenters would
not handle at the project site any framing materials on which any such work had
theretofore been done by others. The Council offered Jewel its standard contract. It
stated that it could not agree to any deviation from that contract , and explained that
its contract disallowed the use of prefabricated materials as proposed by Jewel.
When President Cohen of Jewel persisted that it was not feasible to have gang nail
trusses made by outside carpenters at the project site , a Council representative de-
clared, "Well, if you make trusses and you can 't build it on the jobsite because of the
gang nail , then you will have to use people of our local ." When Cohen complained
"suppose we want to have Cardinal Industries in Columbus , how are they going to
4 A "truss" Is the term used for the assembled timbers that are fastened in triangular
shape and rest on two bearing points, forming a framework section of the roof A gang
nail type of truss is one where the wooden members are secured together by a patented
metal clip or plate that is driven into the wooden members This operation is best per-
formed indoors by a hydraulic press of great force, involving the use of a heavy and
expensive machine.
OHIO VALLEY CARPENTERS DISTRICT COUNCIL, ETC. 983
get people from your local to work over there?" the Council representative's only
response was, "That's your problem. Get somebody local to do it." As for the
other framing components which Jewel wanted prefabricated, the Council similarly
indicated that if Jewel could arrange with a local prefabricating company to employ
the Council's outside carpenters under the Council's contract conditions to do the
prefabricating work, it would be willing to have such prefabricated products handled'
at the jobsite. But Jewel rejected this suggestion as "impractical" and "impossible."
Both Cardinal and Norwood, after being informed by Jewel of the difficulties it
was having with the Council, interceded with the Council to attempt to have it re-
consider its position, as did also the local union representing Norwood's employees.
Their efforts were unsuccessful. The Council through Osterkamp advised Cardinal
in substance that if Cardinal wanted Council members to handle its prefabricated
framing materials at the project site , Cardinal would have to set up a shop in the
Council's jurisdictional area, employ the Council's outside carpenters, and agree to
abide by the terms and conditions of the Council's standard contract. But short of
that, Osterkamp made clear, Cardinal could forget about Jewel's work as the Council
members would not handle prefabricated material worked on by Cardinal's mill-
workers. At the meeting with Norwood, at which local representatives of Norwood's
employees were also present, Osterkamp reiterated that all framing work fell within
the work jurisdiction of outside carpenters. When Norwood pointed out that Nor-
wood alone in the locality had the necessary equipment to fabricate gang nail trusses,
Osterkamp suggested that Norwood arrange to hire outside carpenters at the Council's
wage rates to fabricate the gang nail trusses. Norwood took Osterkamp's suggestion
under advisement, but later rejected it after the Norwood employees at a meeting of
their local voted against admitting outside carpenters into the Norwood plant for
such work.
The early discussions between Jewel and the Council came to an impasse on the
issue of prefabrication. Complaining of the Council's position on that issue, Jewel,
on October 4, 1960, filed unfair labor practice charges against the Council, alleging
violations of Section 8(b)(3). 8(b)(4)(ii)(A) and ( B), and 8 (e) of the Act. The
charges were dismissed administratively.
After dismissal of the charges, Jewel-by that time in immediate need of carpen-
ters-sought out the Council. It expressed its willingness to go along with the Coun-
cil's standard contract and stated it would have all framing work, except gang nail
trusses, performed on the project site
Officials of the Council agreed that the gang nail trusses might be fabricated
offsite, provided such work was done under the Council's contract conditions.
On December 30, 1960, Jewel and the Council entered into the Council's standard
agreement. At the same time they executed as an addendum to the agreement a
memorandum reading as follows:
Memo of Understanding
Park Town Cooperative Homes-FHA Project No. 046-30024 INV
(1) Studs 7'103/x" Stock Lumber
(2) Gang Nail Trusses fabricated ofsite with Ohio Valley District Council
members. Men involved Sawyer and Fabricator. No Labor.
(3) Lumber stock piled as directed by Supt. & placed at his discretion.
(4) Special millwork items such as front and rear frames can be offsite
fabricated as long as doors are fit & hung at opening.
(5) Factory built stairs & cabinets are acceptable.
The above items are acceptable to all parties concerned.
Item (2) has been italicized here to point up the last of the three clauses under
challenge in this case The remaining items in the memorandum had never been
in contention. In the prior discussions between the parties, the Council had agreed
all along that they were "millwork" items outside the work jurisdictional restriction.
Jewel, however, asked for their inclusion in the memorandum, along with the
gang nail truss item, simply for purposes of clarity and to avoid any doubt.
Actually, as events have worked out, the memorandum provision requiring
that the sawing and fabricating of gang nail trusses be done by Council "members"
has not been strictly applied. The gang nail truss work was subcontracted by
Jewel to Norwood. As noted above, Council representatives had earlier sought to
induce Norwood to employ outside carpenters for that work, but without success
because of the opposition of the Norwood Local. Again in late December, the
Council made a further effort in that direction, with the same result. Eventually,
however, an arrangement was worked out under which the Council agreed that
Norwood's regular employees might work on the Jewel gang nail trusses, with
Norwood paying them the Council's outside carpenter's rate for all time actually
'984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spent by them on that particular work. There was talk at one point of requiring
the Norwood employees assigned to the Jewel truss work to obtain special work
permits from the Council, but that was not followed through . The Norwood
employees who have since worked on the trusses have remained members of
their own local and have not been called upon to pay any dues or permit fees
to the Council or any of its affiliated locals.
D. Facts relating to the Hankins' contract ; the shed incident
Hankins is the carpenter subcontractor on a public housing project, known as
Findlater Gardens Addition, which is being erected for the Cincinnati Metropolitan
Housing Authority. The Hamilton Company ( Hamilton ) is the general contractor
on that project. Before entering on that project, Hankins had been the carpenter
subcontractor for Hamilton in the construction of a large multiple housing project
known as the Fay Apartment project. While at the Fay project, Hankins had a
collective -bargaining agreement with Local 2578 of the United Brotherhood of
Carpenters, a local which apparently operates independently of the Council and
does not use the latter 's standard contract. In the construction of the Fay Apart-
ment project , Hamilton used prefabricated framing components produced by
Cardinal. When Hankins moved to the Findlater Gardens Addition project in
late September or early October 1960, Hamilton informed Hankins that that project
was to come under the jurisdiction of the Council an dthat Hankins' contract with
Local 2578 would not be honored. Accordingly, Hankins contacted the Council
and arranged to, and did, sign the Council's standard contract without modification.
Hankins has since operated the Findlater Gardens Addition job with Council
carpenters employed under the terms and conditions of that contract.
The contract between Hankins and the Council is not in evidence and the
record does not disclose the exact date of its execution . However, the testimony
of Willard Hankins-the only testimony on this particular point-reflects that
the contract must have been entered into sometime in late September or early
October, substantially concurrently with the time Hankins began work at the Find-
later Gardens Addition. That would place its execution date at more than 6
months prior to the filing of any of the charges giving rise to this proceeding.
The 8(b)(4)(ii)(A) and ( B) allegations of the complaint are based entirely on
the following incident which occurred at the Findlater Gardens Addition construc-
tion project.
In the latter part of October 1960, Dever Heating Company , the heating and
air-conditioning subcontractor on that project, requested Hankins to erect for it
on the construction jobsite a shed which Dever was to use for office and storage
purposes . The shed was to be erected with prefabricated framing components that
had been made by Cardinal and shipped to the construction jobsite from Cardinal's
plant in Columbus. Sometime in early November, Willard Hankins directed his
carpenter employees to construct the prefabricated shed. While the shed was being
erected, Hankins was visited at the jobsite by four Council representatives, including
the two who are named in Case No. 9-CC-288 as individual Respondents-Russell
White and George Osterkamp. White, pointing to the carpenters constructing
the shed, demanded to know for whom they were working. When Hankins said they
were his employees , White asked Hankins whether he knew he was violating article
III of the contract . Hankins answered , "Yes, I do." 5 White then told Hankins that
if he worked in the area and wanted to use Council carpenters he would have to
abide by the contract. Hankins thereupon, in the presence of the Council rep-
resentatives , pulled his employees off the shed construction work. No further work
was done on the shed for several weeks. Then, at the urging of the Dever
Company which was in dire need of the shed, Hankins agreed to check with the
Council to see what could be done about it. White stated that it "would be all right
if we just dismantled the panels , reassembled them and erected the shed." That
was done, and it was the end of the matter.
E. Analysis and concluding findings
(1)
This case is principally concerned with the validity under Section 8(e) of they
framing work restriction in article III, found in both the Jewel and Hankins con-
tracts 6 with the Respondent Council. The General Counsel has attacked the legality
5 At the hearing Hankins testified that he was aware at that time that he was violating
the framing provisions of article III
6 The Hankins situation is, however , further complicated by a Section 10(b) question.
That aspect of the case will be considered infra
OHIO VALLEY CARPENTERS DISTRICT COUNCIL, ETC. 985
of that provision on two grounds, one a broad one, the other narrow. The broad
ground is that any contract, such as the one in the instant case, which in effect
prohibits or restricts an employer from using prefabricated materials offends
Section 8(e) of the Act without more, since the employer is thereby required
to refrain from using or handling the products of another employer with whom he
might otherwise have desired to do business.? The narrow ground is that the
contractual provision in question is illegal because, as construed, it would allow
Council carpenters to handle at a jobsite prefabricated materials only where such
materials were produced at plants employing Council carpenters and paying Council
wages, but not otherwise. The first ground was the one on which the General
Counsel principally relied at the hearing. Now in his brief, however, he appears
to have relegated it to a secondary position, without abandoning it, however, and
he places his primary stress on what has been referred to above as the narrow
ground.
The Respondents dispute that the contractual provision in question has any
"hot goods" aspect. Its sole purpose and design, in the words of their brief, is "to
set forth the work to be performed by the employees in the Union's bargaining
unit and pursuant to the terms and conditions of the contract" and to "perserve such
work for these particular employees." As the Respondents see it, or state they do,
the issue here is a simple one, namely: "Does a contract which delineates the work
to be performed only by the employees within a bargaining unit offend 8(e) of the
Act since it prohibits the employer from having such work performed by another
employer and thereby causes the employer not to do business with any other
employer regarding the performance of such work?"
The issue as thus phrased by the Respondents is essentially no different from the
one presented by the General Counsel's broad contention adverted to above. Were
there no more to this case, I would have no hesitation in finding baseless the alleged
violation. I
A literal reading of Section 8(e) would no doubt condemn any scope-of-work
contractual provision which assigns and reserves to employees in a bargaining unit
all work of a given kind , since by implication it would preclude the employer
through subcontract or otherwise from dealing with other persons with regard to
such work or the product thereof. But Section 8(e) cannot be woodenly applied
to all situations which the breadth of its language may superficially appear to fit.
As the Board has already cautioned , each case must be considered on its own in
the light of the particular restriction involved and the underlying intent of that
restriction. Minnesota Milk Company, 133 NLRB 1314. And it must be done
with due regard , not only to the underlying purpose of Section 8(e), but to the
statutory scheme as a whole, so that violence is not done to other statutory policies
and objectives. Cf. Mastro Plastics Corp., et al. v. N.L R.B., 350 U.S. 270, 279.
Care must be taken to recall that Section 8(e) was basically designed to close what
its proponents considered a loophole in the secondary boycott provisions of the
Taft-Hartley Act. The Employing Lithographers Div. of Graphic Arts Employers
Assn. et al:, -130 NLRB 985. As was aptly expressed by Senator Goldwater, Section
8(e) was intended to outlaw what is in effect a "secondary boycott in futuro," that
is, "an agreement by an employer to permit a secondary boycott to be conducted
against him ." II Leg. Hist. 1859 ( 1959 ). It must be interpreted and applied with
that in mind.
To adopt the General Counsel's broad contention-that a work jurisdictional
provision reserving all work of a stated kind exclusively to employees in the unit
covered by the contract is invalid under Section 8(e) for the reasons alone that it
imprisons the employer and removes his freedom to deal with others for the
product of such work-is to ignore other fundamental concepts of the Act, as
reflected, in part, by Sections 9, 8(b)(4)(D), and 10(k). Whether defined in terms
of "contract coverage" or "appropriate unit" or "union work jurisdiction ," the de-
lineation and exclusive assignment to employees in a contract unit of specified
work tasks cannot itself be regarded as unlawful; indeed , particularly where a craft
is involved , it is necessary if the contract is to be meaningful. In Section 10(k)
cases, the Board has long upheld as valid the preemption by contract of assigned work
I During oral argument, the General Counsel explicated his position in that regard as
follows:
Section 8(e) bans virtually all types of agreements between a union and an employer
which restrict the employer's business relations with others. The ban of the sec-
tion . . embraces any agreement between any union and any employer whereby the
employer agrees to cease or refrain, or actually ceases or refrains from doing business
with any other employer
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jurisdiction to members of a particular craft, and has ruled strike action to enforce
such contractually granted work jurisdictional rights not violative of Section
8(b) (4) (D). See, e.g., National Association of Broadcast Engineers and Techni-
cians, C.I.O., Hollywood Chapter (National Broadcasting Company, Inc.), 105
NLRB 335; Local No. 48, Sheet Metal Workers International Association, AFL-
CIO, et al. (Gadsden Heating and Sheet Metal Company), 119 NLRB 287; Radio &
Television Broadcast Engineers Union, Local 1212, etc. (National Broadcasting Sys-
tem, Inc ), 114 NLRB 1354. Thus, too, it has long been recognized that restrictions
on subcontracting work out to another employer, or on otherwise having done
elsewhere work usually performed by employees in a bargaining unit, is a mandatory
subject of collective bargaining and a proper matter for contract inclusion. See The
Timkin Roller Bearing Company, 70 NLRB 500, 518; W. L. Rives Company, 125
NLRB 772, 782; Local 24, Teamsters v. Oliver A.C.E. Transportation, 358 U.S. 283,
294-295. Contractual restrictions of this character undoubtedly impinge upon
an employer's freedom to engage in business with others. But where they do no
more than define and reserve for the exclusive performance of employees in a bar-
gaining unit work of a kind that has traditionally been performed in that unit,
they have a different function from the contracts that were the targets of 8(e).
Restrictions designed to confine work to unit employees are immediately related to
terms and conditions of employment within the unit. They anticipate no work to
be performed by persons other than employees of the immediate employer. Their
sole, direct, and primary aim is to protect and preserve work and therefore jobs for
employees within the bargaining unit. In these respects limited restrictions of that
character are quite different in purpose and intent from the "hot goods" clauses
8(e) was designed to ban-that is, the blacklisting of specified employers or classes
of employers because their products or labor policies are objectionable to the
union A "hot goods" clause anticipates work to be performed by persons other
than the employees of the immediate employer. Without such anticipation the
"hot goods" clause serves no purpose, for its interest is to empower the union to
regulate the dealings of the immediate employer with others by dictating with what
class of other employer the immediate employer may deal, or under what conditions.
In short, it is with work or conditions of work outside the contract's bargaining
unit that "hot goods" clauses are immediately concerned
The foregoing discussion has been addressed mainly to the General Counsel's
broad contention. That contention is rejected. But, as I earlier said, there is more
to this case.
As has been seen, the Council's standard contract does not in terms require-and
the Council does not in practice construe it as requiring-that the framing work
assigned to "outside carpenters of this jurisdiction" must be restricted to the unit
employees. The Council interprets and applies the contract as allowing the use
by a signatory employer of prefabricated framing materials and components supplied
by other employers-but with limitations. The Council reads the contract as
embodying an implied condition that the employer will not use the product of any
offsite fabricated work not done (1) by the specific class of employees ("outside
carpenters") represented by the Council, (2) within the Council's jurisdictional area,
and (3) under the contract terms and conditions of employment that govern the
signatory contractor's relations with his own employees. Under the contract, as
interpreted, an employer who enters into it thereby consents in advance to a boycott
at the jobsite of any prefabricated products that do not meet such conditions.
It is thus apparent that the application of the particular work jurisdictional pro-
vision here in issue is not confined to the bargaining unit. As the contract itself
shows, the bargaining unit in the case of Jewel-the same is true in the case of
Hankins-is that of a single-employer unit Yet the contract, as construed and
applied, reaches outside that unit to regulate the terms and conditions of employ-
ment that must govern nonunit employees if Jewel (or Hankins) is to be allowed
to handle their work product.
And it is precisely at this point that the Respondents' defense-built upon a
factually inaccurate formulation of the issue-breaks down.8
8 As a matter of first impression it might appear unrealistic in a building trade union
situation to draw a distinction between what is allowable and what is not on the basis of
strict unit lines It must be acknowledged that single-employer units in the construction
industry do not have the same stability as, say, in the manufacturing industry. At best
they are amorphous and in a sense artificial groupings. The real community of employee
interest lies more in the broader area craft grouping that cuts across employer lines.
From this it might be argued that if a work prefabrication restriction confined to em-
OHIO VALLEY CARPENTERS DISTRICT COUNCIL, ETC. 987
In analogous situations arising under Section 8(b) (4), the Board has frequently
condemned union induced boycott activity by the employees of employer A directed
against the work products of employer B because B's employees either are not repre-
sented by the union or do not work under conditions measuring up to the union's
contract conditions-and this notwithstanding A's violation of a work-jurisdictional
provision requiring that the work in dispute must be confined to A's employees and
may be performed elsewhere only if done by union represented employees and/or
under the contract conditions applicable to the A unit. See, e.g., Butchers' Union
Local 563, etc. (Huntington Meat Packing Company, d/b/a Oxford Meat Co.),
134 NLRB 136; Local 598 Plumbers and Steam fitters (Kennewick) et al. (Mc-
Donald-Scott & Associates) , 131 NLRB 787; Tri County Association of Civil En-
gineers, et al., 126 NLRB 688, enfd . (C.A. 9), enfd. 293 F. 2d 319; Detroit Edison
Company, 123 NLRB 225, enfd . 278 F. 2d 858 (C.A.D.C.); Bangor Building Trades
Council, AFL-CIO (Davison Construction Company, Inc.), 123 NLRB 484, enfd.
278 F. 2d 287; Local 47, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL, et al. (Texas Industries, Inc.), 112 NLRB
923, enfd. 234 F. 2d 296 (C.A. 5); York Corporation, 121 NLRB 676, 684, 685.9
The principles established in 8(b ) (4) cases, though not necessarily controlling, never-
theless provide persuasive guidance to any interpretation of 8(e). As stated above,
8(e) was designed to outlaw agreements under which an employer agrees in advance
to permit unlawful secondary boycotts to be conducted against him. It is quite evi-
dent therefore that Congress intended 8(e) and 8 (b)(4)(B) to be construed in
harmony. Thus, generally speaking, the validity of a restrictive agreement chal-
lenged under 8(e) must be considered in terms of whether that agreement, if en-
forced by prohibited means, would result in an unfair labor practice under Section
8(b) (4) (B). Clearly, there is little point and no logic in declaring an agreement
lawful under 8(e), but in finding its enforcement condemned under 8(b)(4)(B),
and the converse is of course equally true. A notable exception, however, is a
ployees of a single employer is allowable under Section 8(e) on the theory that its purpose
is essentially a primary one-to protect the work the union has bargained for-then, re-
gardless of strict unit considerations it oucht to be no less allowable on the same theory if
the scope of that restriction is enlarged to embrace all employees in the union's jurisdic-
tional area enjoying similar contract conditions. But such an argument overlooks en added
element Where this kind of a work restriction is confined to a single-employer unit, it re-
lieves the employer of all choice and leaves no opportunity for indirect pressure on others
Where not so confined , the opposite is true Then, potentially at least, the restriction on
outside fabrication can be employed to exert an indirect, hence a secondary, pressure on
other employers to enter into contractual arrangements with the union That is particu
larly true where, as here, the restricted fabrication need not necessarily he done at the
jobsite, or by employees in the specific class covered by the contract, or by employees in
the area; yet the Union is in a position to control at the jobsite what prefabricated mate-
rials will or will not be handled
e The Respondents argue that a distinction should be drawn between a situation where
allowable work outside the unit is confined solely to union members and one where the
only restriction is that the wage scales and conditions of out-of-unit employees must meet
the contract standards The latter, they say, is the situation here. Perhaps a strong
argument might be made, as indeed it has been made by one court, that the latter type of
restriction is primary in character on the theory that it is simply an attempt "to remove
the economic incentive for contracting out, and thus to preserve the work of the contract-
ing employees " (See Retail Clerks Union Local 770, Retail Clerks International Associa-
tion , AFL-CIO v. N L R 13 , 296 F 2d 368 (CAD C ), now before the Board on remand.)
But Board decisions by which I am bound have not to date drawn any such distinction.
At any rate, on the record as a whole in this case, I find unsubstantiated the factual
premise on which that argument must rest True, there is some support for it in the
generalized testimony of Osterkamp But the actual events in the Jewel case, particu-
larly the Council's contacts with Cardinal, reveal that the Council reads the contract as
requiring more than simply commensurate wages and the like; that it reads it as requir-
ing that the work be done, if not actually under a contract with the Council and by
Council members, then at least by "outside carpenters" represented by the Council. More-
over, the Council imposes, as Osterkamp's own testimony shows, an area limitation on the
outside carpenters who may do such work, confining them to those of its "jurisdiction "
As to this, cf., Upholsterers Frame 4 Bedding Workers Twin City Local No 61, et al
(Minneapolis House Furnishing Company), 132 NLRB 40.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
situation meeting the specific conditions of the construction industry proviso to
8(e).10
What then of the proviso? The proviso shelters from 8(e) labor-management
agreements in the construction industry "relating to the contracting or subcontract-
ing of work to be done at the site of construction, alteration, painting or repair of a
building, structure, or other work." 11 There can be little doubt from a reading of
the proviso that it would exempt from the application of 8(e) a work jurisdictional
clause requiring that all work within the contract's coverage must be done exclusively
by the represented employees at the jobsite, or one requiring further that no such
jobsite work may be let out to another contractor unless it is to be done by a union
contractor or under union contract conditions.12 Thus-apart from other considera-
tions earlier discussed-the proviso alone would appear to validate fabrication clauses
limited to work actually to be done at the construction jobsite, at least in situations
where the work is of a kind that has traditionally been done and can be done on the
jobsite and is therefore not one simply designed to disguise some unlawful purpose.
The Respondents argue, however, that the scope of the proviso goes further and
applies as well to any offsite work that "could be done at the site of construction"
and "would be done [there] if not contracted out." Therefore, they say, it is per-
missible under the proviso to include in a contract a fabrication type of clause
which would bar from use at a jobsite, except where produced under union con-
tract conditions, prefabricated materials or components that are the product of
work that might otherwise have been done at the construction site. With that
interpretation of the proviso, I am unable to concur. A reading of the proviso and
its legislative history reveals that Congress-possibly because it recognized that con-
struction work at a jobsite, though handled by various crafts, involves in a sense
a single integrated operation-meant to do no more than to preserve the status quo
with regard to express or implied agreements, not uncommon in the industry, fixing
the conditions under which the entire jobsite operation is to be run, whether as a
union job or otherwise To me, it seems a distortion of the plain meaning of the
statutory words, "work to be done at the site of construction" to read them as
synonymous with "work that could be done" or work that might be done " To
support their position, the Respondents have referred to extensions of remarks in-
serted in the Congressional Record after the passage of the amendment 13 I do
not regard such postlegislative statements as a proper guide to congressional intent.
The legislative history prior to passage appears to oppose rather than to support
the Respondent's proposed interpretation. Thus, the House Conference Report
stated the following (H. Rept. No. 1147, 86th Cong., lst Bess , p. 39) :
It should be particularly noted that the proviso relates only and exclusively
to the contracting or subcontracting of work to be done at the site of the con-
struction. The proviso does not exempt from Section 8(e) agreements relat-
ing to supplies and materials or other products shipped or otherwise transported
to and delivered on the site of construction.
Senator Kennedy, in reporting the conference agreement to the Senate, substantially
concurred in the interpretation expressed in the House Report. (II Leg. Hist. 1431.)
Representative Barden. in reporting the conference agreement to the House, was
somewhat more explicit with respect to the precise subject at hand. He stated
(II Leg. Hist. 1715) :
10 With regard to that proviso, the legislative history shows, and the Board and the
courts have ruled, that the proviso was not intended to legalize strikes or other coercive
activity to enforce the specified type of restrictions that it withdraws from the reach
of 8(e) See, The Burt Manufacturing Company. 127 NLRB 1629. 1633 NLRB v.
Bangor Building Trades Council (Davison Constr Co ), 278 F 2d 287, 290 (C A. 1) ;
N L R B v International Union of Operating Engineers, Local Union No 12, AFL- C-10
(Trs-County Assn of Civil Engineers), 293 F 2d 319 (CA 9).
II The phrase "or other work" at the end of the pioviso appears, in context, to be re-
lated to something in the nature of a building or structure, to a culvert for example
19 See H. Con. Rept 1147, 86th Cong., 1st sess, p 39, I Leg Hist. 943 (1959), state-
ment of Senator Kennedy, II Leg Hist. 1433 (1959).
is See, extension of remarks of Senator McNamara, September 14, 1959, II Leg Hist.
1815; and of Representative Thompson on the same date, II Leg. Hist 1816. A directly
opposite interpretation was expressed, however, in the extension of remarks of Representa-
tive Kearns of Pennsylvania, also dated September 14, 1959, II Leg. Hist 1861. For a dis-
cussion of the conflicting views thus expressed, see, Guy Farmer, The Status and Applica-
tion of the 'Secondary-Boycott and Hot Cargo Provisions, 48 Georgetown Law J 327,
342-343
OHIO VALLEY CARPENTERS DISTRICT COUNCIL, ETC. 989
The first proviso under subsection (e) . . . permits the making of voluntary
agreements . . . relating to the contracting or subcontracting of work to be
done directly on the site of construction. [Emphasis supplied.]
The contrasting language used in the broader garment industry exemption, con-
tained in the second proviso to 8(e), confirms the conclusion I reach here, that
Congress did not intend the construction industry exemption to extend to work done
away from the actual site of construction, even though such work might be viewed
as part of the construction process and is of a kind that may feasibly be done at the
construction site.14
For all the reasons set out above, I conclude and find that the provision in the
Council's contract with Jewel relating to the cutting, fitting, and erection of all
framing and concrete forms-to the extent that that provision, as construed and
interpreted, requires that prefabricated materials produced off the project site by
employees outside the bargaining unit may be used in construction on the project
site only if such prefabricated materials are made or produced within the Council's
jurisdictional area by outside carpenters who are members of or are represented,
by the Council and/or are employed under the Council's contract conditions-is
violative of Section 8(e).
The complaint alleges a separate 8(e) violation with respect to the provision in
the addendum to the Jewel contract requiring that gang nail trusses fabricated offsite
must be fabricated by Council members. I find that allegation supported for the
same reasons. As to this particular allegation, I note further, however, that even
if the Respondents were right in their interpretation of the meaning of the proviso,
the result reached would be the same, since the Respondents agree, as Osterkamp's
testimony discloses, that it was not feasible to do this particular type of work at the
construction jobsite.
(2)
I consider now-with direct reference to the Jewel case-the complaint' s allegation
that 8(e) was violated by the contractual provision requiring that: "Hardware for
metal window set in wood frames is to be applied by carpenters." This issue received
only passing notice at the hearing. The General Counsel did not explicate his spe-
cific contention with regard to it at oral argument, nor has he in his brief. The only
thing I have to go on is the allegation in his complaint , reflecting that he considers
this clause unlawful under 8(e) because "as construed and interpreted" it requires
that the work referred to "when performed away from the project site, shall be per-
formed only by members of or employees represented by the Council." The relevant
facts have been set out above. As appears therefrom, the provision in question does
not contemplate that work of the kind in question may be done by employees outside
the bargaining unit or at any place other than the actual jobsite. The provision has
a twofold purpose (1) to set off the work jurisdiction reserved for outside carpenters
at the jobsite from that reserved for other crafts, and (2) to protect the Council's
historical claim to have such work regarded as outside carpenters' work to be per-
formed only at the jobsite. The first purpose is clearly unrelated to the statutory
objective of 8(e) For reasons already discussed, the second purpose also appears
to me to be essentially primary in character and outside the reach of 8(e). More-
over, even if it were regarded as otherwise coming within the scope of 8(e), it would
nevertheless find shelter under the construction industry proviso, as it relates to the
contracting of work "to be done at the site of construction." Accordingly, I find
that the particular unfair labor practice allegation in question is not sustained and
shall recommend its dismissal.
(3)
There remains for consideration the complaint's 8(e) allegations , based on the
Hankins contract, and the 8(b) (4) (ii) (A) and (B) allegations, based on the shed
incident.
The alleged 8(b)(4)(ii)(B) violation requires little discussion. The undisputed
facts recited above quite clearly establish unlawful restraint for a prohibited object
14I am not unaware that the restricted interpretation of the proviso which I adopt
here may encourage inflexibility by unions in their dealings with employers in iezard to
permitting offsite prefabrication. But, if so, that is not reason in itself for refashioning
the statute as written The statute is its own measure of what it permits and what it
forbids, and it is not for the Board to set up against the statute its own judgment of
what as a matter of policy may be desirable or undesirable
1990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the meaning of that section , both on the part of the Respondent Council and
on the part of the individual Respondents who, it is found , acted as the Council's
agents. The Respondents defend on the ground that they were simply enforcing a
contract valid under Section 8(e). That defense is rejected for reasons earlier
expressed in this report.15 This aspect of the case is controlled by the line of
Board precedents cited above , such as Butchers' Union Local 563, etc. ( Huntington
Meat Packing Company , d/b/a Oxford Meat Co. ), 134 NLRB 136 and Local 598
Plumbers and Steam fitters (Kennewich ) , et al. (McDonald-Scott & Associates), 131
NLRB 787 . It is found that the Respondents , in violation of Section 8(b) (4) (ii) (B),
threatened , coerced, and restrained Hankins, with an object of forcing or requiring
Hankins to cease handling the products of Cardinal.
As noted above , the other allegations relating to Hankins are complicated by
the intrusion of Section 10(b), it appearing that the Council 's contract with Hankins
was entered into more than 6 months prior to the filing of the charge. It is noted
that in contrast to the Jewel case where the complaint specifically alleges that the
Council and Jewel "entered into" the contract , the complaint in its reference to the
Jewel situation simply recites that "Council and Hankins have been parties" to an
8(e) contract and have "maintained and given effect " to it. The statute by its terms,
however, only makes it an unfair labor practice for a union and an employer "to
enter into" a contract or agreement of the kind prohibited. Because of the explicit-
ness of the above-quoted words, I do not read them as sufficiently broad to encompass
also "maintain" and "give effect to," thus making the unlawful act of entering into,
without more, ,a continuing unfair labor practice throughout the life of the contract.16
The situation here is not like the one where the Board finds it a violation under
Section 8(a)-(1) or (3) to maintain a contract containing a provision , unlawful on
its face, which restrains employees in the exercise of Section 7 rights or sets out a
discriminatory term or condition of employment . For there , unlike here , the statute
spells out the specific violation in express terms of "restraint " or "coercion" or "dis-
crimination ," and so long as the contract remains in effect there is a continuation
of the particular condition which the statute itself defines as the unfair labor prac-
tice. The case here , in my view , is controlled rather by the principles stated in
Local Lodge No. 1424 , International Association of Machinists , AFL-CIO (Bryan
Manufacturing Co.) v. N .L.R.B., 361 U.S. 411.
But that does not completely dispose of the problem , since in this case it appears
that more was done than simply maintain the contract in effect. As found above,
the Council by coercive pressure exercised within the limitations period compelled
Hankins to live up to the agreement and in effect to reacknowledge its vitality. This
poses the more difficult question as to whether the Council's coercive enforcement
of the already existing "unenforcible and void" agreement amounted in law to a
new "entering into" of an 8(e) agreement . If so, this would spell out violations
of both 8(e) and of 8 (b)(4)(A) not barred by the 10 (b) statute of limitations. In
the posture of this particular case, however, I think no useful purpose would be
served in grappling with that question and thus further extending a report already
far too long . The 8(e) remedial order to be recommended on the basis of the viola-
tion found in the Jewel case will, because of the standard contract involved , be suffi-
ciently broad in any event to provide whatever relief would flow from a finding of a
separate 8(e) violation in the Hankins case . And the remedial order based on a
violation of 8(b ) (4) (ii) (A), if found, would as a practical matter provide no
greater measure of relief or future protection for the Charging Party or for Hankins
than does the 8 (b)i(4) (ii ) (B) order I recommend below.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above , occurring in con-
nection with the operations of the Companies set forth in section I, above, have a
close, intimate , and substantial relation to trade , traffic , and commerce among the
several States , and, to the extent found to have been unfair labor practices , tend to
lead to labor disputes burdening and obstructing commerce and the free flow thereof.
151t is further to be noted that even if-contrary to my views stated above-the con-
tractual provisions involved fell within the scope of the construction proviso , this would
not provide a defense to an 8 ( b) (4) (ii) (B) violation See footnote 10, supra
16 As a practical matter it makes little difference whether or not the violation is a con-
tinuing one , for the statute by its terms makes 8 ( e) agreements "unenforcible and void"
In either event.
OHIO VALLEY CARPENTERS DISTRICT COUNCIL, ETC . 991
V. THE REMEDY
It having been found that the Respondents have engaged in certain unfair labor
practices , it will be recommended that they cease and desist therefrom and take
certain affirmative action to effectuate the policies of the Act.
It has been found that the Respondent Council engaged in an unfair labor practice
by entering into a contract with Jewel containing provisions which, as interpreted
and construed , are prohibited under the provisions of Section 8(e). It appears from
the record that such provisions are part of a standard form of contract used by the
Council in its relations with other area employers and that the same provisions are
similarly unlawfully interpreted and construed in contracts with such other employ-
ers. In these circumstances, I believe the policies of the Act and its preventive pur-
poses would best be served by requiring that the "cease and desist " provisions of the
Recommended Order relating to the 8 (e) violations be made applicable not only to
future contracts with Jewel , but with any other employer as well.
Upon the basis of the foregoing findings of fact, and upon the entire record, I
make the following:
CONCLUSIONS OF LAW
1. The Respondent , Ohio Valley Carpenters District Council, United Brotherhood
of Carpenters and Joiners of America , AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act . The Respondents , Russell White and George
Osterkamp , are agents of the aforesaid labor organization within the meaning of
Sections 2(13) and 8 ( b) of the Act.
2. iBy entering into a contract with The Jewel & Honor Joint Venture containing
a provision which , as interpreted and construed , requires that prefabricated framing
and concrete forms produced off the project jobsite by employees of employers other
than Jewel & Honor may be used in construction on the project site only if such pre-
fabricated materials have been produced within the Council's jurisdictional area by
outside carpenters who are members of or are represented by the Council and/or
are employed under the same contract terms and conditions as govern Jewel &
Honor's relations with the Council , the Respondent Council engaged in and is
engaging in an unfair labor practice within the meaning of Section 8,(e) of the Act.
3. By threatening , restraining , and coercing Hankins & Hankins Construction Com-
pany with an object of forcing and requiring Hankins to cease using and handling
products of Cardinal Industries , Inc., the Respondents engaged in and are engaging
in an unfair labor practice within the meaning of Section 8(b) (4) (ii) (B) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and ( 7) of the Act.
5. The contract entered into between the Respondent Council and The Jewel &
Honor Joint Venture did not violate Section 8 (e) of the complaint insofar as it
required ( 1) that hardware for metal windows set in wood frames is to be applied
by carpenters , and (2 ) that framing and concrete forms fabricated at the project
site must be cut, fitted , and erected only by members of or employees represented
by the Council.
6. The Respondent Council did not within the 6-month limitation period prescribed
by Section 10(b) of the complaint engage in unfair labor practices within the mean-
ing of Section 8(e) by entering into the contract with Hankins & Hankins Construc-
tion Company referred to in the complaint.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that Ohio Valley Carpenters District
Council, United Brotherhood of Carpenters and Joiners of America , AFL-CIO, and
its officers , representatives , successors , assigns, and agents, including specifically
Russell White and George Osterkamp , shall:
1. Cease and desist from:
(a) Entering into any contract , express or implied, with The Jewel & Honor Joint
Venture, or any other employer, whereby such employer agrees that prefabricated
framing and concrete forms, when produced off the project jobsite by employees of
another employer , may be used or handled in construction on the project site only
if such prefabricated materials have been produced within the Council 's jurisdictional
area by outside carpenters who are members of or are represented by the Council
and/or are employed under the same contract terms and conditions as apply to the
outside carpenters in the employer's employ.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Maintaining in effect , implementing , or renewing article III of the contract
entered into between it and The Jewel & Honor Joint Venture on December 30, 1960,
to the extent found unlawful above.
(c) Threatening, restraining, and coercing Hankins & Hankins Construction Com-
pany or any other person engaged in commerce or in an industry affecting commerce
where an object thereof is to force or require Hankins & Hankins Construction Com-
pany, or any other person, to cease using, handling, or dealing in the products of,
or otherwise cease doing business with, Cardinal Industries, Inc 17
2. Take the following affirmative action found necessary to effectuate the policies
of the Act:
(a) Post in conspicuous places in the Respondent Council 's business offices, meet-
ing halls, and places where notices to its members are customarily posted, copies of
the notice attached hereto marked "Appendix." 18 Copies of said notice, to be fur-
nished by the Regional Director for the Ninth Region, shall, after being duly signed
by Respondent Council's authorized representative and by the individual Respond-
ents, be posted by the Respondent Council immediately upon receipt thereof, and
maintained by it for a period of 60 consecutive days thereafter. Reasonable steps
shall be taken by the Respondents to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Furnish the Regional Director for the Ninth Region signed copies for posting,
the Companies willing, by The Jewel & Honor Joint Venture and by Hankins &
Hankins Construction Company at their respective project jobsites in places where
notices to employees are customarily posted. Copies of said notice to be furnished
by the Regional Director shall, after being signed by the Respondents, as indicated,
be forthwith returned for disposition by him.
(c) Notify said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report, what steps the Respondents have taken to comply
herewith.19
17 This provision of the Recommended Order shall not be construed, however, as appli-
cable to any future situations involving the enforcement under circumstances not other-
wise prohibited by Section 8(b) (4) (B) of an agreement valid and enforceable under
Section 8(e) of the Act
is In the event that these recommendations be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "Recommendations of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursu-
ant to a Decision and Order."
1U In the event that these recommendations be adopted by the Board, this provision
shall be modified to read "Notify said Regional Director, in wilting, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO ALL CARPENTER EMPLOYEES OF THE JEWEL
& HONOR JOINT VENTURE AND OF HANKINS & HANKINS CONSTRUCTION COMPANY
Pursuant to the Recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the National Labor Relations
Act, we hereby give notice that:
WE WILL NOT enter into any contract, express or implied, with The Jewel &
Honor Joint Venture, or any other employer, whereby such employer agrees that
prefabricated framing and concrete forms, when produced off the project jobsite
by employees of another employer, may be used or handled in construction on
the project site only if such prefabricated materials have been produced within
the Council 's jurisdictional area by outside carpenters who are members of or
are represented by the undersigned Council and/or are employed under our
contract terms and conditions
WE WILL NOT maintain in effect, implement , or renew article III of our con-
tract with The Jewel & Honor Joint Venture entered into on December 30, 1960,
to the extent that said article has been found unlawful.
WE WILL NOT threaten, restrain, or coerce Hankins & Hankins Construction
Company, or any other person engaged in commerce or an industry affecting
commerce, where an object thereof is to force or require Hankins & Hankins
LOCAL 853, INT'L UNION OPERATING ENGINEERS , ETC. 993
Construction Company, or any other person , to cease using, handling, or dealing
in the products of, or otherwise cease doing business with , Cardinal Industries,
Inc.
OHIO VALLEY CARPENTERS DISTRICT COUNCIL,
UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
Dated------------------- By-------------------------------------------
(RUSSELL WHITE)
Dated- ------------------ By-------------------------------------------
(GEORGE OSTERKAMP)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Local 853, International Union of Operating Engineers, AFL-
CIO, and its business manager , Richard J . Carney, Jr. and
Schiavone & Sons, Inc., and Schiavone Terminals , Inc. Case
No. 1-CD-60. April 11, 196.
DECISION AND DETERMINATION OF DISPUTE
This proceeding arises under Section 10(k) of the National Labor
Relations Act, which provides that "Whenever it is charged that any
person has engaged in an unfair labor practice within the meaning of
paragraph (4) (D) of section 8(b), the Board is empowered and
directed to hear and determine the dispute out of which such unfair
labor practice shall have arisen...."
On February 26, 1960, Schiavone & Sons, Inc., and Schiavone Ter-
minals, Inc., herein called Sons and Terminals, respectively, filed a
joint charge with the Regional Director for the First Region alleging
that Local 853, International Union of Operating Engineers, AFL-
CIO, herein called Local 853, and its business manager, Richard J.
Carney, Jr., had engaged in and were engaging in certain unfair labor
practices within the meaning of Section 8(b) (4) (i) and (ii) (D) of the
Act. It was charged in substance that Local 853 and Carney had in-
duced and encouraged employees of Schiavone & Sons and Schiavone
Terminals to engage in a strike or refusal to perform services in the
course of their employment with an object of forcing or requiring the
Employer to assign particular crane operation work to members of Lo-
cal 853, rather than to employees who are members of Local 799, 800,
and 805 of the International Longshoremen's Association, herein col-
lectively called ILA.
Thereafter, pursuant to Section 10 (k) of the Act and Sections
102.89 and 102.90 of the Board's Rules and Regulations, Series 8, the
136 NLRB No. 94.