Sheet Metal Workers Intl. Assn., Loc. 150

National Labor Relations Board - Board Decisions

Mar 26, 1968

170 N.L.R.B. 772 (N.L.R.B. 1968)

772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers International Association,
Local No. 150, AFL-CIO and Associated Pipe
and Fittings Manufacturers , on behalf of all its
members
Sheet - Metal Workers International Association,
LOCAL No. 99, AFL-CIO and Associated Pipe
and Fittings Manufacturers , on behalf of all its
members. Cases 19-CE-9 and 19-CE-10
March 26, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND ZAGORIA
On August 2, 1967, Trial Examiner Herman
Marx issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in any unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Charg-
ing Party filed exceptions to the Decision together
with a supporting brief.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief,
and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent con-
sistent with this Decision and Order.
The Trial Examiner held that the Respondent
Unions did not, within the Section 10(b) limitation
period, enter into "hot cargo" arrangements in
violation of Section 8(e) of the Act, as he found,
among other things, that they did not, within that
period, engage in conduct amounting to a reaffir-
' In this respect, the record reveals that employees subject to the collec-
tive-bargaining agreements here involved fabricate , both at their em-
ployers' shops and at construction sites, materials which are similar to
those purchased from suppliers , and, accordingly , that work protection is a
legitimate object of union concern
2 The material portion of article VIII reads as follows
Section 2. On all work specified in Article I of this agreement,
fabricated and/or assembled 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' Interna-
tional Association , whose established wage scale is higher than the
wage scale specified in this Agreement , the higher wage scale of the
mation of article XV of the Addenda to their
respective collective-bargaining agreements, enti-
tled "Union Label." Rather, the Trial Examiner
found that the object of the Respondent Unions'
conduct was the enforcement of article VIII of
these same agreements , which article, as viewed by
the parties, was designed "to protect the job oppor-
tunities and standards of employees subject- to the
contracts from the adverse effects of `competition'
of employees who produce prefabricated materials
at wages below those paid under the agreements. "I
The Charging Party excepts to these -findings of
the Trial Examiner, contending, among other
things, that the Respondent Unions manifested a
dual purpose by their conduct, namely, the con-
tinued maintenance and enforcement of article XV
in an unlawful manner, as well as the enforcement
of article VIII. By having the parties treat article
XV in the manner alleged, the Charging Party
urges, the Respondent Unions have entered into
"hot cargo" arrangements in violation of Section
8(e) of the Act. We agree.
The Respondent Unions concede that on nu-
merous occasions they warned contractors who are
parties to the agreements here involved not to use
materials produced at wage rates which are lower
than the "construction" rates required under article
VIII,2 and that as a consequence these contractors
agreed to buy materials produced by- employees
who were paid the required rates.
However, the record also shows that in June
1966, Ralph Smathers, a business representative of
Respondent Local 150, advised William Schmidtke,
president of Columbia Sheet Metal, Inc., a signato-
ry to the agreement with the Respondent Local,
that he, Schmidtke, could ascertain which -materials
were produced at construction wage rates by
reference to the "Green Book" which was dis-
tributed by the Local. Schmidtke did not demur to
the instruction that he should choose his supplier
from those listed in the "Green Book." The "Green
Book" is the union label directory promulgated
pursuant to article XV of the agreements here in
question.3
As to this incident, the Trial Examiner held that
preservation of construction wage rates pursuant to
job site Union shall be paid to the journeymen employed on such work
in the home shop or sent to the job site
3 Article XV reads in material part
The Employer agrees to give preference wherever possible (if not in
conflict with any Federal or State Laws or Regulations, and where
quality , price and time of delivery are equal ) to Union made materials
and products . . The Union and the Employer Association will jointly
publicize and submit to the contractors , the name of firms and compa-
nies in agreement with Local Unions affiliated with the Sheet Metal
Workers' International Association who manufacture products bear-
ing the Union Label of the Sheet Metal Workers' International Union
170 NLRB No. 116
SHEET METAL WORKERS INTL. ASSN., LOC. 150
article VIII was the basis for the advice given by
Smathers to Schmidtke and, therefore, that this ad-
vice did not have as an object the enforcement of
article XV. We disagree with this holding of the
Trial Examiner.
The record reveals that the union label is affixed
to materials produced at both the construction
wage rates which the parties agree are required by
article VIII of the pertinent agreements and at
lower "production" rates, as well. The "Green
Book" to which Schmidtke was referred does not
distinguish between materials produced at the
higher and lower rates, but merely lists indis-
criminately producers of materials bearing the
union .label. Material produced by employees at
production rates obviously cannot be used on work
covered by the agreements here in question except,
as the parties concede, in violation of article VIII.
Further, it is clear that the use of the union label is
designed to achieve organizational objectives. Thus,
in an article entitled "Control of our Industry" by
the Director of the Department of Organization of
the Sheet Metal Workers' International Associa-
tion , which appears in the January 1965 issue of the
International's Journal, the following language ap-
pears:
By the end of this year we hope to have the
I.A.'s union label on the products of many,
many fabricators who now supply sheet metal
products to our industry, who are presently
nonunion. ... This organizing campaign will
necessitate the close cooperation of affiliated
local unions and their members, and the "good
will" of union contractors. . . . If any product
or any piece of equipment does not bear our
union label this fact should be promptly re-
ported to our union steward and, through him,
to the union business agent, so that effective
action can be taken to safeguard and protect
our complete jurisdiction-in terms of both
fabrication and installation. Every I.A. member
has the legal right, voluntarily-on his own-to
refuse to handle products that do not bear our
union label. ... That's what we want to do
with the non-union suppliers in our industry ...
organize them this morning, or "plant them
this afternoon."
Clearly, under these circumstances, the thrust of
Smathers' remark and Schmidtke's acquiescence
was to have article XV maintained in a manner
which would eliminate the use of all materials ex-
cept those bearing a union label. The Board has, in
4 Metropolitan District Council of Phila , 149 NLRB 646, 655-656, affd
sub nom . National Woodwork Manufacturers Association v. N L.R B, 386
U S.612(1967).
773
the past, held that union label provisions similar to
the one here in question constitute "hot cargo" ar-
rangements violative of Section 8(e) of the Act.4
Accordingly, we find that Respondent Local No.
150, as manifested by the conduct of Smathers, its
business representative, "sought to have - [article
XV of its] agreement ... treated as being in effect"
so as to require Columbia Sheet Metal to adhere to
an arrangement "within the ambit of Section
8(e)."5 We find further that the latter firm evinced
an intention to so adhere to this arrangement. As
this conduct occurred within a 6-month period im-
mediately preceding the filing of charges herein, we
find that Respondent Local No. 150 has violated
Section 8(e) of the Act.
The record also shows that in the late summer or
fall of 1966, Richard Woelke, the business
representative of Respondent Local No. 99, visited
the jobsite of Bayles Brothers, Inc., a party to the
agreement with the Local, and inquired whether
certain material, which the latter was using on the
project, had a union label. When Woelke could not
find such a label, or find the manufacturer's name
among those listed in the union label directory, he
advised the Company's seven employees, who were
called together by Roy O'Brien, the foreman, not to
install the material in question until they had heard
from him. Subsequently, a conference was held
between Ray Porter, a vice president of the Com-
pany, and E. J. O'Keefe, the business manager of
the Local. O'Keefe called Porter's attention to the
fact that the material in question was not listed in
the "Green Book." Porter advised O'Keefe that his
firm would no longer use the- material involved
because it was not considered to be a very good
product.
The Trial Examiner-was unable to conclude that
the aim of the Union in this one "isolated instance
... was to apply or enforce the Union Label Ar-
ticle rather than to ascertain the origin of the prod-
uct as a preliminary step to application of the
Union's `construction' scale requirement for pre-
fabricated products ...." We cannot agree with
this holding of the Trial Examiner.
As previously stated, the union label is affixed to
union-made products whether they are produced at
construction rates or at lower production rates. In
the circumstances related above, the Trial Ex-
aminer's conclusion that reference to the "Green
Book" was for the limited purpose of ascertaining
whether the material in question was produced at
construction rates must fall. It seems clear that
5 Cf Los Angeles Mailers Union No 9, 1 T U (Htibro Newspaper Printing
Company ) v. N L R B ., 311 F 2d 121, 125 (C A D C ), involving Section
8(b)(4)(u )( A); District No. 9, I .A M v N.L R B , 315 F 2d 33 (C A D C.)
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Woelke stopped the work for the simple reason that
the material in question had no union label. It
seems equally clear that the Company's
acquiescence in Woelke's demand was essentially
based on its recognition that the Union had a con-
tractual right to make such a demand. Further, the
fact that the Trial Examiner deems this incident to
be "isolated," because other evidence of unlawful
conduct was not disclosed in the testimony adduced
at the hearing, does not persuade us that, at least as
to this incident, a violation has not occurred. For
reasons previously set forth in this Decision, we
hold that, by its conduct respecting article XV of
the agreement, Respondent Local No. 99 has vio-
lated Section 8(e) of the Act.'
THE REMEDY
Having found that the Respondent Unions have
engaged in certain unfair labor practices, we shall
order them to cease and desist therefrom and to
take certain affirmative action which the Board
deems necessary to effectuate the policies of the
Act.
Upon the basis of the foregoing and the entire
record in these cases, the Board makes the follow-
ing:
CONCLUSIONS OF LAW
1. William Wallace Co., a division of Wallace
Murray Corporation, and General Metalcraft, Inc.,
are, and have been at all material times, employers
engaged in commerce or in an industry affecting
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Each individual, firm, or company identified
in the record as a party to a collective-bargaining
agreement with either Respondent Local is, and has
been at all material times, an employer within the
meaning of Section 2(2) of the Act.
3. Respondent Local No. 150 and Respondent
Local No. 99, Sheet Metal Workers International
Association, AFL-CIO, are, and have been at all
material times, labor organizations within the
meaning of Section 2(5) of the Act.
4. Ralph Smathers, business representative of
Respondent Local No. 150, Richard Woelke, busi-
ness representative of Respondent Local No., 99,
and E. J. O'Keefe, business manager of Respondent
Local No. 99, are, and have been at all material-
times, agents of their respective Locals within the
meaning of Sections 2(13) and 8(b) of the Act.
5. By their conduct as set forth in our Decision
herein, the Respondent Unions have entered into,
maintained, and given-effect to the operative por-
tion of the union label provision of the agreements
here in question and have- hereby engaged in unfair,
labor practices within the meaning of Section 8(e)
of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National _ Labor
Relations Board hereby orders that Respondent
Local No. 150 and Respondent Local No. 99, Sheet
Metal Workers International Association,
AFL-CIO, their officers, agents, and representa-
tives, shall:
1. Cease and desist from entering into, maintain-
ing, or giving effect to article XV of the'addenda to
their respective collective-bargaining agreements,
entitled "Union Label," or from entering into,
maintaining,, or giving effect to any other like
agreement violative of Section 8(e) of the Act.
2. Take the following affirmative action in order
to effectuate the policies of the Act:
(a) Post in conspicuous places in their business
offices, meeting halls, and in all places copies of the
attached notice marked "Appendix."' Copies of
said notice, on forms provided by -the Regional
Director for Region 19, after being duly signed by
Respondent Unions' official representatives, shall
be posted by the Respondent Unions immediately
upon receipt thereof, and be maintained by them
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to mem-
bers are customarily posted. Reasonable steps shall
be taken by Respondent Unions to insure that said
notices are not altered, defaced, or covered by any
other material.
(b) Mail to the Regional Director for Region 19
signed copies of the aforementioned notice for
posting by each Employer who is a party to a col-
lective-bargaining agreement with either Respon-
dent Local, if that employer be willing, in places
c As we find that the operative portion of the union label provision of the enforcement, this savings clause would be sufficient to purge article XV of
agreements here in question has been applied , maintained , and enforced its unlawful character
without any effect being given to the savings clause contained therein, we 7 In the event that this Order is enforced by a decree of a United States
find it unnecessary to pass upon the validity of the savings clause or to Court of Appeals, there shall be substituted for the words "a Decision and
determine whether, without evidence of such inconsistent application and Order" the words "a Decree of the United States Court of Appeals Enforc-
. ing an Order."
SHEET METAL WORKERS INTL. ASSN., LOC. 150 775
where notices to employees are customarily posted.
Copies of said notice, on forms to be provided by
the Regional Director for Region 19, shall, after
being duly signed by the Respondent Unions, as in-
dicated, be forthwith returned to the Regional
Director for disposition by him.
(c) Notify the Regional Director for Region 19,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
APPENDIX
NOTICE TO ALL OUR OFFICERS AND AGENTS AND TO
ALL MEMBERS UNDER THE JURISDICTION OF
LOCAL No. 150 AND LOCAL No. 99, SHEET
METAL WORKERS INTERNATIONAL ASSOCIATION,
AFL-CIO, AND TO ALL EMPLOYEES OF
EMPLOYERS WHO ARE PARTIES TO A COLLECTIVE-
BARGAINING AGREEMENT WITH EITHER OF THE
ABOVE UNION LOCALS
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT enter into, maintain, or give
effect to article XV of the addenda to our col-
lective-bargaining agreements, entitled "Union
Label," or enter into, maintain, or give effect
to any other like agreement violative of Sec-
tion 8(e) of the Act.
SHEET METAL WORKERS
INTERNATIONAL
ASSOCIATION, LOCAL No.
150, AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
SHEET METAL WORKERS
INTERNATIONAL
ASSOCIATION , LOCAL No.
99, AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 327 Logan Building, 500 Union Street,
Seattle, Washington 98101, Telephone 583-4532.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN MARX, Trial Examiner: The complaint
in this proceeding, issued under Section 10(b) of
the National Labor Relations Act, as amended,'
alleges that the Respondents, two labor organiza-
tions (identified herein as Local 150 and Local 99
and, collectively, as the Respondent Locals),' have
entered into, and have "maintained and enforced in
an unlawful manner," agreements with various em-
ployers, requiring the latter to cease and refrain
from "buying, handling, using , selling , transporting,
or otherwise dealing in some of the products of
other employers," including one identified in the
record as "William Wallace Co., a division of Wal-
lace Murray Coprporation" (herein Wallace), and
another as "General Metalcraft, Inc." (herein
Metalcraft); and that by such conduct, the Respon-
dent Unions have violated Section 8(e) of the Act.3
Each Respondent has filed an answer in effect
denying the commission of the unfair labor prac-
tices imputed to it in the complaint.
A hearing on the issues was held before me, as
duly designated Trial Examiner, at Seattle,
Washington, on April 4 and 5, 1967. All parties ap-
peared and were afforded a full opportunity to ad-
duce evidence, examine and cross-examine wit-
nesses, and submit oral argument and briefs.'
Upon the entire record, from my observation of
the witnesses, and having read and considered the
briefs filed with me since the hearing, I make the
following findings of fact:
1. JURISDICTION
Wallace and Metalcraft are manufacturers of
sheet metal products, the former operating plants in
'29 U S C 151 et seq , herein the Act
£ As used in this decision , the designation Local 150 refers to Sheet
Metal Workers International Association, Local No 150, AFL-CIO, and
Local 99 to Sheet Metal Workers International Association, Local No 99,
AFL-CIO
' The complaint was issued on February 24, 1967, and is based upon a
charge filed against Local 150 by an organization named Associated Pipe
and Fittings Manufacturers on October 27, 1966, and upon another charge
filed on the same date by that organization against Local 99 The charges
have been duly consolidated for hearing, and copies of the charges, order
of consolidation , and complaint have been duly served upon all parties en-
titled thereto.
4 A stipulation of the parties amending the transcript in various particu-
lars is hereby made part of the record , and the transcript is deemed
amended as stipulated The transcript is garbled or otherwise inaccurate in
a number of other respects, imputing words and phrases to various partici-
pants in the hearing , including myself, that were not used , but as the record
adequately reflects the material facts and issues, in the absence of a motion
by any of the parties, I see no need for any corrections other than those
stipulated
776 DECISIONS OF NATIONAL LABOR RELATIONS-BOARD
California, Washington, and Ohio, and the latter a
factory in Oregon, and are, and have been at all
times material here, employers within the meaning
of Section 2(2) of the Act.
During the year immediately preceding the is-
suance of the complaint, in the course and conduct
of its business, each of these concerns purchased
products valued in excess of $50,000, for use at its
said manufacturing facilities, from suppliers located
in States other than those where its said facilities
are situated, and shipped products valued in excess
of that sum from such facilities to locations in other
states. - By reason of such interstate purchases -and
shipments, Metalcraft and Wallace are, and have
been -at all times material to the issues, engaged, in
interstate commerce, and in operations affecting
such commerce, within the purview of Section
2(6) and 2(7) of the Act. The National Labor Rela-
tions Board (herein the Board) has jurisdiction of
the subject matter of this proceeding.-'
II. THE LABOR ORGANIZATIONS'3NVOLVED
Each of the Respondent Locals admits employees
engaged in sheet metal work to membership; exists
in whole or in part for the purpose of dealing, on
behalf of such employees, with their employers
concerning wages and other terms and conditions
of employment; and is, and has been at all times
material here, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefactory Statement
Local 150 has its headquarters in Tacoma,
Washington. Its membership consists of both
"production" and "construction" sheet metal wor-
kers, the former performing their work primarily in
plants, and the latter at, or in connection with,
building construction projects. Local 99 maintains
its office in Seattle, Washington, and its member-
ship consists of construction sheet metal workers.
Both Respondent Locals are chartered by Sheet
Metal Workers' International Association (herein
the International), and, under article I of, that
body's constitution, are, together with their officers
and members, bound by the International's con-
stitution, rules, policies and regulations.
Article 23 of the constitution provides, in part,
that the "use of union labels of this Association (In-
ternational) is limited to strictly union-made
products, manufactured, assembled and fabricated
by none but good standing members affiliated with
this International and all members must recognize
such union label"; and that each "local union
should urge and encourage the use of union labels
on all strictly union-made sheet metal products."
In implementation of these provisions, the Inter-
national maintains and makes available to its locals
a booklet entitled "Union Label Directory," listing,
in alphabetical order, as well as under product
headings, the name and address of every employer
who is a party to a contract on file in the Interna-
tional's office. (Article 27 of the International's
constitution requires such filing by contracting lo-
cals.) The International issues a revised edition of
the directory from time to time to reflect changes
in the list of "union label companies" (as those
listed are described in the directory). The current
edition (herein the,blue directory, after the color of
its cover) was published in December 1966 or in
the following month; an earlier edition .(herein the
green directory) was in effect at all material times
prior thereto. A foreword to each edition states that
the-directory has the primary purpose "of providing
the Local Unions of this International Association,
and their signatory contractors, with a means of
identifying those companies that manufacture
products for installation in the construction indus-
try that bears the (International's) union label";
and that "the products listed are produced in their
entirety by members of the ... International ...
and the companies listed are all eligible to use the
union label on their products."
The foreword to the earlier edition includes, and
the current one omits, the statement: "The union
label is our major deterrent to unemployment. We
demand it on all products and materials we han-
dle."s
Each Respondent Local, as collective-bargaining
representative of sheet metal workers, is a party to
5 The commerce findings are based upon admitted allegations of the
complaint , and a stipulation dated June 23, 1967, filed with me since the
hearing, and hereby made part of the record It appears tome that the com-
plaint 's commerce allegations contain immaterial surplusage , warranting
some clarifying comment here in order to avoid any misunderstanding of
the basis for the assertion of jurisdiction The substance of the complaint's,
jurisdictional allegations is that the Charging Party, Associated Pipe and
Fittings Manufacturers , is an organization of employers , including Metal-
craft and Wallace, who operate plants in different states , and a Seattle,
Washington , firm called Curtiss & Distributors , Inc, that Associated, as
well as each of the three named member firms , is an employer within the
meaning of the Act, that during the year preceding the issuance of the com-
plaint , the three members of Associated made interstate purchases valued
in excess of $50,000 , and interstate shipments valued in excess of that sum,
and that Associated and the three members of the organization are engaged
in commerce within the meaning of the Act . But the record does not
establish the purposes of Associated, nor that it was itself a target of the al-
legedly unlawful contract arrangements , and for all that appears in this
case, its status as an "employer," and the fact that Metalcraft, Curtiss, and
Wallace are members of the organization , are immaterial here The com-
merce averments relating to Curtiss add nothing to the case if for no other
reason than that the commerce facts pertaining to Metalcraft and Wallace
are sufficient to vest the Board with jurisdiction over the subject matter of
the issues, but I note , in addition , that there is no claim that the Respondent
Locals were parties to any arrangement with any employer for the latter to
cease or refrain from doing business with Curtiss , or handling , using, or
dealing in its products.
6 The record does not include a copy 9f the earlier edition, but it is fairly
inferable from. the testimony of E J O'Keefe, business manager of Local
99, that with the exception quoted above, the foreword is the same in both
editions
SHEET METAL WORKERS INTL. ASSN., LOC. 150 777
a contract with employers (many through multiem-
ployer group or association bargaining), effective
for the period from April 1, 1965, to March 31,
1968, and prescribing wage rates and other terms
and conditions of employment for the employees of
such employers. Some 65 employers are subject to
the Local 150 contract, and approximately 77 to
the Local 99 agreement.'
Each contract includes provisions of a "standard
form" furnished by the International to its building
trades locals throughout the country, and incor-
porated by them in their collective-bargaining
agreements . Article VIII of the "standard form"
(not to be confused with article VIII of addenda to
each contract) deals with wages. Section 2 of the
article provides that where "work" subject to the
agreement is "fabricated" or "assembled" within
the contracting union's jurisdiction, "or else-
where," for "erection" or "installation" within
the jurisdiction of any other of the International's
locals, whose relevant wage rate is higher than that
of the contracting local, 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 of the article lists some ex-
ceptions to section 2, including "the manufacture
for sale to the trade of ... resiential furnace pipe
and fittings," Both Respondent Locals read and
apply the quoted provisions of section 2 of article
VIII as prohibiting employers subject to the respec-
tive agreements from using prefabricated sheet
metal products manufactured at less than the con-
tract, or "construction," wage scales in "commer-
cial" (as distinguished from "residential") con-
struction work.
Each contract contains addenda that supplement
the "standard form." These include "union label"
provisions (herein article XV or the union label ar-
ticle), upon which the issues here focus. These
terms are identical in each agreement, except for
some slight and immaterial variation, and thus the
following, taken from the Local 150 contract, will
suffice for resolution of the issues:
ARTICLE XV
UNION LABEL
The employer agrees to give preference wher-
ever possible (if not in conflict with any
Federal or State Laws or Regulations, and
where quality, price and time of delivery are
equal) to Union made materials and products.
The word "Union" shall mean all affiliates of
the Sheet Metal Workers' International As-
sociation. The Union and the Employer As-
sociation will appoint a Standing Committee
for the purpose of determining the legality of
any other clause which may strengthen this
clause. The Union and the Employer Associa-
tion will jointly publicize and submit to the
contractors the name of firms and companies
in Agreement with Local Unions affiliated with
the Sheet Metal Workers' International As-
sociation who manufacture products bearing
the Union Label of the Sheet Metal Workers'
International Union.
The General Counsel does not contend that the
union label articles are invalid per se (apparently, as
one may gather from his brief, because of'the
."savings clause" that the "preference" required for
"Union made materials and products" not be "in
conflict" with law), but, rather, the gravamen of his
position, as reflected in paragraphs 12 and 13 of
the complaint, is that each Respondent Local "has
maintained and enforced (article XV ) in an unlaw-
ful manner ... and thereby has entered into and
given effect to collective bargaining provisions ...
in violation of Section 8(e) of the Act."8 As sup-
port for this position, he points to various incidents
within the limitation period (6 months prior to the
filing of the charges on October 27, 1966)
prescribed by Section 10(b) of the Act, asserting,
in substance , that these demonstrate the illegality of
each union label article in application, particularly
when viewed against a background of events
preceding the statutory period. Findings as to the
relevant incidents and background follow below.9
B. The Alleged Applications of the Union Label
Article by Local 150
Early in January 1966, members of Local 150 in
the employ of National Sheet Metal Company,1°_an
enterprise subject to the Local 150 contract,
refused to install certain fittings at two construction
projects. At one, the employees gave a member of
the management, Dayton Finnegan, the reason that
they were "not sure whether it was union label
material," and that they had been "advised" by
' A list of employers subject to the Local 150 contract is erroneously
marked G.C Exh 18, and should be G.C Exh 19 The document initially
marked for identification as G.C. Exh. 18 is a prehearmg statement made
by a witness That exhibit was excluded initially when offered by the
General Counsel, but subsequently received as Charging Party Exh 1.
9 To the extent pertinent here, Section 8(e) provides.
It shall bean unfair labor practice for any labor organization and any
employer to enter into any contract or agreement, express or implied,
whereby such employer ceases or refrains or agrees to cease or refrain
from handling, using, selling, transporting or otherwise dealing in any
of the products of any other employer, or to cease doing business with
any other person; and any contract or agreement entered into hereto-
fore or hereafter containing such an agreement shall be to such extent
unenforceable and void
The "construction industry" proviso to Section 8(e) is not set forth
because no claim is made that it is applicable to the facts here.
9 The background evidence antedating the statutory 6-month period was
offered, and is considered here, solely for such light as it may shed "on the
true character of matters occurring within the limitations period." Local
1424, International Association of Machinists v N L R B, 362 U S 411,
416
10 Apparently the same enterprise identified as "National Blower & Sh
M " in a list of employers subject to the contract
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some "anonymous" person that they "were liable
to run into trouble" if they used the products. The
work was completed with some "old material on
the job site." At the other project, a journeyman
told Finnegan that he could not use certain fittings
because he had been "advised" not to do so. Who
had "advised" him, or whether the advice had any
connection with union labeling, does not appear,
but be that as it may, the employee used the
products upon Finnegan's promise to discuss the
matter with a representative of Local 150.
Shortly thereafter, on January 21, 19,66, Fin-
negan attended a meeting at a Tacoma restaurant
between the business manager of Local 150, John
Starke, and a committee of an association-of em-
ployers subject to the Local 150 contract. The
meeting had been arranged upon Starke's initiative
to discuss such matters as labor supply and the en-
forcement of wage provisions in the contract.
Starke voiced an objection at the meeting that vari-
ous products bearing the International's label but
produced at a lower wage scale than the "construc-
tion" (contract) scale were being used in "commer-
cial" construction subject to the agreement. One or
another of the employer representatives present
inquired whether it was possible to buy fittings
manufactured at the "construction" rate, and, in
reply, Starke named a Seattle enterprise, "Colum-
bia Manufacturing Company" (herein Columbia),
as a producer of such-products."
During the course of the meeting, Finnegan in-
formed Starke of the two incidents, described
above, when employees of Finnegan's company had
objected to the use of certain products. Finnegan
told Starke that his firm had purchased the
products from a "supplier" named Kirk and Blum,
and he and Starke consulted a copy of the green
directory produced by, the latter, found that the
supplier was listed (at a location in Cincinnati,
Ohio), and, as Finnegan put it in his testimony,
"agreed that type of material was satisfactory for us
(Finnegan 's firm) to use. Starke gave copies of the
green-directory to various employer representatives
present.
Finnegan testified that prior to the meeting his
firm had purchased pipes and fittings from two
Tacoma distributors, one known as Gensco, Inc.
(which sells products made by Metalcraft and Wal-
lace), and-the other as McPherson's Furnace and
Equipment Company, but discontinued doing so
shortly after the meeting, and thereafter purchased
its sheet metal products from other sources, includ-
11 The current union label directory lists a Seattle firm under the name
"Columbia Mfg & Metals. Inc " I assume that that concern is the one
referred to in the testimony as "Columbia Manufacturing Company" or
"Columbia Manufacturing "
12 Actually, Columbia is a manufacturer, and its products are purchased
by Finnegan 's company from a Seattle distributor , Curtiss & Distributors,
Inc , which is referred to in the record as "Curtis Distributing Company."
Finnegan , as his testimony indicates , appears to have little firsthand
knowledge of his firm's sources of supply Most of its purchases are actually
made by its "purchasing agent ," Robert Kirrage I note, also, that Finnegan
ing Columbia Manufacturing, because, so Finnegan
stated, "the men on the jobs (the two projects men-
tioned above) were refusing to install the material
that we purchased. "I
In or about September 1966, in a telephone con-
versation, Starke told Robert Kirrage, employed by
Finnegan's company as its "purchasing agent," that
some "elbows" intended for use by the firm at a
certain jobsite "weren't the type or the_ make that
he (Starke) wanted us to use," and Kirrage replied
that he had purchased the products from. McPher-
son's in the belief that they had been produced by
Columbia Manufacturing and "were of this union
make that was acceptable" to Local 150. Starke
stated that "we will let it go this time" if "the other
type" were used "next time." Starke did not say
why,the products were not "acceptable."
Another representative of Local 150, Ralph
Smathers, had some conversations with manage-
ment personnel on the subject of products accepta-
ble to the Union. On one such occasion, probably
in the spring of 1966, Smathers told Elmer Havre, a
partner in a firm subject to the Local 150 contract,
that article VIII (dealing with wage rates, as previ-
ously noted) "was to be enforced," and that the
firm was "to use only such prefabricated fittings
from other sources on which the building trade
scale of wages prevailed." As a consequence,
Havre's firm adopted a policy of purchasing materi-
als produced at "the building trade scale of wages,"
thus, in Havre's view, making them "acceptable to
Local 150."
On another occasion, within a period of several
weeks later, Smathers complained to Havre that the
latter's firm was not using the proper materials on a
certain construction project "in that they were not
constructed at a wage scale commensurate with
that of the building trade." Havre promised to
avoid "a reoccurrence of such a situation."
On several occasions in the early-part of 1966,
Smathers discussed the Local 150 contract with
Vernon From, an officer of a sheet metal fabricat-
ing firm which had not yet become a party to the
agreement. The evidence of these discussions is
somewhat scant in details, but according to From's
undisputed testimony, there was no reference to the
union label article, and primary emphasis was
placed on article VIII.
In June or July 1966, Smathers visited From's
place of business and inspected certain products
that the firm had purchased for use at a construc-
tion project. These had been ordered through Gen-
quotes Starke as saying that "fittings were acceptable to the construction
trade if purchased from Columbia Manufacturing ," but the context in
which Columbia was mentioned is not clear in his testimony According to
Roy Burke, another employer representative at the meeting, who, like Fin-
negan, was called by the General Counsel, Starke named Columbia in
response to an inquiry from the employer group whether it was possible to
purchase fittings made at " this ( construction ) wage rate " Finnegan's
testimony is not to the contrary , and, indeed , his reference to "fittings
acceptable to the construction trade" suggests a context similar to that
reflected in Burke 's account , upon which I have based the relevant finding
SHEET METAL WORKERS INTL. ASSN., LOC. 150
sco, but had been made by Columbia Manufactur-
ing, which had shipped them directly to From's
company, and had billed that concern for them.
After his inspection, Smathers told From that he
was satisfied that the products had been purchased
from Columbia Manufacturing and that they were
"the only one(s) acceptable to the union at the
time." From's company was not yet a signatory to
the Local 150 contract ( signing it some months
later). So far as appears, apart from the fact that
the products were made by Columbia, Smathers did
not specify why they were "acceptable" to Local
150.
In or about June 1966, Smathers called on Wil-
liam Schmidtke, the president of a company subject
to the Local 150 contract, and during the course of
discussion, told. Schmidtke that materials the Com-
pany contemplated using on a certain project "were
to be made with wages comparable to Local 150"
(in other words, as is reasonably inferable, manu-
factured at rates at least equivalent to the Union's
contract scale). Schmidtke said he did not know
where to buy the needed products, and Smathers
said that that could be ascertained through "the
green book" (green directory), and mentioned two
sources of supply, "one place in Portland," and the
other, "Curtis Distributing Company" (meaning, as
I infer, a Seattle firm named Curtiss & Distributors,
Inc., also called Curtiss herein). Smathers also
referred to an experience of a company named
Trosper Furnace & Appliance Company (a party to
the Local 150 contract), stating that at a certain
project Trosper had sought to use fittings that had
not been manufactured at "the same" wage rates as
those maintained by Local 150, and "were not able
to use them" (because of Local 150's opposition, as
is plainly inferable); and that if fittings required by
Schmidtke's firm for the project in question were
either not made in the Company's shop or were
manufactured elsewhere at wage rates that were
not "the same" as those maintained by Local 150,
"they (Schmidtke's company) wouldn't be able to
use them." The thrust of this, I find, was that Local
150 would prohibit its members from working on
prefabricated materials manufactured at less than
the "construction" scale prescribed by the Union's
contract. 13
In or about July 1966, Smathers telephoned
Donald Johnson, manager of a company which was
a party to the Local 150 contract, and told him that
fittings at a certain construction project were not
13 In a pretrial affidavit , Schmidtke stated, among other things- "I-
(Smathers ) said that at Trospdr their men had refused to work on pipe and
fittings for a commercial job and that if I bought pipe and fittings for com-
mercial jobs from sources not approved by the union that my (Schmidt-
ke's) men would not install it " Schmidtke 's recollection of his conversa-
tion with Smathers seemed faulty at various points, and the quoted written
statement was received as past recollection recorded The allusion to
"sources of supply' approved by the union" was, in my view, a reference
to Local 150's disapproval of prefabricated products made at a wage rate
less than the Union's "construction" scale This meaning is not only evi-
779
"proper" because they had been fabricated at wage
rates below those that prevailed in Johnson's shop.
The latter asked what could be done to remedy the
situation, and Smathers replied that the "few"
fittings needed could be fabricated in the shop or
could be purchased from "a couple of companies."
Asked by Johnson to suggest one, Smathers stated
that Johnson "could buy" fittings "made by the
right scale people" (in other words, manufactured
at the "construction" scale) from Curtiss. Johnson
replaced the fittings on hand at the project with
products he purchased from Curtiss.
C. The Alleged Applications of the Union Label
Article by Local 99
In the summer or fall of 1966, while a concern
named Masher Sheet Metal Company, a party to
the Local 99 contract, was engaged in installing
some pipe located at a "commercial" construction
project, a representative of Local 99, Dick Woelke,
telephoned the proprietor of the enterprise, Mark
Servey, Jr.; inquired where the pipe had been
purchased; and was told either at "McPherson or
. Gensco." Woelke then asked where the supplier
had procured the pipe, to which Servey replied that
he had no knowledge; and Woelke inquired
whether Servey had received a letter from the
Union to the effect that "certain fittings and pipe
... had to be manufactured at the building trades
scale." Servey stated that he had not received the
letter.
Shortly thereafter, Local 99 transmitted to Ser-
vey, either by mail or through Woelke, a copy of
the blue directory, and a copy of a circular or letter
addressed to "All Sheet Metal Contractors & As-
sociations," dealing, in the main, with the subject of
the "residential" and other exceptions to the provi-
sions of section 2 of article VIII.
Following the telephone discussion, Woelke
called on Servey, and the latter asked him where
prefabricatted products made "at the building
trades scale" could be purchased, and Woelke
replied that there were "a couple" of supply
sources in Seattle, including Curtiss. Woelke said
that Servey "could use" the pipe on hand at the
project in question, and in response to a query by
Servey as to how contractors who purchased sheet
metal products from Servey "would ... know" that
they were made "under union requirements,"
dent in the larger context of Schmidtke's affidavit as a whole, but he
quotes Smathers much in that vein in his testimony Actually, the quoted
excerpt adds nothing of significant substance to Schmidtke's testimony,
which. taken as a whole, in net effect pictures Smathers as voicing a
requirement that Schmidtke's company use fittings made at wage rates no
lower than the Union's contract scale. and as stating, in substance, albeit
not in terms, that the Union would prohibit its members from working on
the fittings unless the requirement were met. In short, the affidavit is, in
practical effect, surplusage. and I base no findings on it.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Woelke stated that "labels" were available for such
products.
Servey's firm completed the project with the pipe
already purchased and with additional products
made at the "construction" scale.14
In the late summer or fall of 1966, Woelke
visited a construction project where Bayles
Brothers, Inc., a party to the Local 99 contract, was
engaged in pipe installation which was near
completion; spoke to the Bayles foreman, Roy 0'-
Brien, who was a member of Local 99, as were the
other Bayles employees at the site; and asked 0'-
Brien whether pipe being used by Bayles at the pro-
ject had been made in a "union shop." O'Brien said
that he did not know, and replied to the same effect
when Woelke asked him if it was "union labelled."
Woelke thereupon inspected the product; and find-
ing no union label, looked in the green directory.
Then, stating that he could get no information
there, he told O'Brien that "he would check on it,
(and) not to finish installing (the pipe) until he had
checked." O'Brien said that Bayles was not "going
to use it anymore" because the company "didn't
like it"; and he directed the employees to suspend
installation of the product. However, -they did in-
stall the pipe, doing so shortly after Woelke's visit
(as one may infer from O'Brien's testimony that the
pipe did not remain unprocessed "very long," and
that the incident "didn't interfere with our work").
The installation was completed as a result of a
conversation between an officer of Bayles, Ray
Porter, and Local 99's business manager, E. J. 0'-
Keefe, who is Woelke's superior and called on
Porter to discuss the use of the pipe in question. 0'-
Keefe told Porter that the manufacturer of the pipe
was not listed in the union label directory, but that
it was agreeable to the Union that its members
complete the installation because he "could see"
14 At one point in his testimony , Servey quoted Woelke as saying that he
(Woelke ) knew that the pipe in question " came in one way or another from
William Wallace Company which does not pay the uptown ('construction')
scale," but later Servey, who was the only witness as to the discussion,
testified that he does not "think" that anything was said about Wallace, and
that he does not "really recall " that the name was mentioned Thus I make
no finding that there was any reference to Wallace
t5 The record does not specifically establish that the project visited by
Woelke was the one discussed by Porter and O'Keefe The period in which
each of the two incidents occurred is vaguely and broadly approximated in
the testimony , and the time lapse between them does not clearly appear,
nor even which occurred first, nor how O'Brien or the employees he super-
vised learned of the removal of the Union 's objection to use of the remain-
ing pipe . However , O'Brien, stating that he heard no more from Woelke,
testified that he "believe( s) O'Keefe told Mr Porter it was all right to
finish" the work , and much in the vein of Porter 's comment to O'Keefe that
the product would not be purchased in the future "because it wasn't
any good ," O'Brien told Woelke that Bayles "didn 't like" the product
From these circumstances , I infer that the conversation between O'Keefe
and Porter involved the product at the project visited by Woelke
16 There is no evidence that McPherson carries Metalcraft or Wallace
products , and thus whatever inference one may draw from the fact that
Finnegan 's company no longer buys from Gensco , there is no basis in this
record for a finding that the discontinuance of purchases from McPherson
constituted a cessation of the use of Metalcraft or Wallace products . I note,
also, that Finnegan testified at one point that prior to the Tacoma restau-
that Bayles had made "a mistake" in its choice-of
the product. Porter said that his firm would not
purchase it in the future "because it wasn't . . . very
good," and O'Keefe asked Porter to write a letter
to the manufacturer to the effect that Bayles would
not thereafter purchase the product because it was
not made by employees "who received the building
scale" specified in the Local 99 contract. As one
may infer, word of the removal of the Union's ob-
jection to use of the remaining pipe reached 0'-
Brien , and the installation was then completed.15
D. Conclusions
The complaint (par. 9) names only Metalcraft
and Wallace of the "employers" whose products it
is alleged the sheet metal contractors subject to the
Respondent Locals' collective-bargaining agree-
ments have ceased - and refrained from using "in
conformance" with the union label article. There is
no evidence that any- of the - contractors have
discontinued, or refrained from, the -use of Metal-
craft or Wallace products for any reason unless one
is to infer such a result from Finnegan's testimony
that his firm no longer does business with Gensco
which carried Metalcraft and Wallace products.16
Whether or not such an inference is warranted (a
matter that need not be decided in view of the
results reached below), there is no doubt that each
of the Respondent Locals has sought to preclude
the use by employers subject to its contract of cer-
tain prefabricated materials, and, has suggested fac-
tory or supply sources of which it approved; and
that the record reflects a number, of instances
where employers changed or adopted sources of
supply to conform to a union suggestion -or require-
ment . However, these factors by no, means in-
evitably lead one to conclude that either Respon-
rant meeting his firm had bought products "from" Wallace, and that he
does not "recall" such purchases thereafter . The fact that he does not "re-
call" any Wallace purchases since the meeting does not establish that his
company has not made them Wallace, moreover, is a manufacturer, and,
in view of the evidence that sheet metal contractors follow the practice of
buying products from distributors such as Gensco , McPherson , or Curtiss,
one may doubt that Finnegan 's firm ever bought products directly "from"
Wallace Any conclusion based on Finnegan 's testimony as to the factory
source of.products purchased by his company would be much of guess, for
he stated that he is "not completely familiar" with the manufacturing
source of products his company buys, and that, although he knows that
Gensco has carried materials of a type made by Wallace , he "cannot testi-
fy" as to "where they are manufactured " Another matter that may be
noted here is that the General Counsel offered to prove that various of the
employers subject to the Local 150 contract told an employee of Gensco,
out of the presence of any representative of the Union , that "they could not
use products which are sold by this supplier ( Gensco ), because they would
be in violation of their contract (with Local 150) if they did so " The offer
was rejected as inadmissible hearsay ( although it may be observed, too,
that the offer does not spell out which provisions of the contract-whether
article XV or article V111-were involved in the , alleged statements)
Similarly rejected was an offer to prove through an employee of McPher-
son that several parties to the Local 150 contract told him that they would
not buy products from McPherson "unless and until, he ( McPherson's em-
ployee ) gets the union label of the Sheet Metal Union on the products "
SHEET METAL WORKERS INTL. ASSN., LOC. 150
dent was maintaining and enforcing its union label
article "in an unlawful manner," as the General
Counsel contends.
It must be borne in mind on that issue that quite
apart from the express provisory exceptions to Sec-
tion 8(e), not all arrangements whereby an em-
ployer agrees with a union not to handle or deal in
the products of another employer are prohibited by
Section _8(e). The legality of such an agreement
may turn on its aim. It is lawful if designed to
preserve the work opportunities or standards of em-
ployees of the contracting employer, and unlawful,
as the Supreme Court recently put it in the National
Woodwork case, if "calculated to satisfy union ob-
jectives elsewhere .... The touchstone is whether
the agreement or its maintenance is addressed to
the labor relations of the contracting employer vis-
a-vis his own employees. 1117
As the evidence establishes, sheet metal products
used in construction work by employers subject to
either of the collective-bargaining agreements in-
volved here are not only purchased in prefabricated
form but may be fabricated by the employers in
their own shops or at construction sites.
Prefabricated products are usually produced in fac-
tories at so-called "production" wage scales, which
are normally lower than the "construction" rates
specified in the Respondents' contracts, even if pro-
duced in unionized plants under contract to "pro-
duction" (as distinguished from "construction")
locals of the International. As is evident, the use of
such products in construction work could have an
adverse impact upon the job opportunities and
wage scales of the construction sheet metal em-
ployees represented by either of the Respondent
Locals, and the employees' interest in the level of
"production" rates is both plain and understanda-
ble. In fact. as the parties stipulated at the hearing,
"as a matter^of contract (meaning article VIII, as
may reasonably be inferred) ... practice and ...
policy," each Respondent Local "on numerous oc-
casions (has) insisted" that prefabricated products
manufactured at less than "the construction rate"
cannot be used on "commercial" construction pro-
jects- It is evident that this course has been fol-
lowed because the Respondent Locals, in O'Keefe
phrase, "wish to keep our competition equal," or,
in other words, to protect the job opportunities and
standards of employees subject to the contracts
from the adverse effects of "competition" of em-
ployees who produce prefabricated materials at
wages below those paid under the agreements.
In the light of that objective and the practice and
policy aimed at its achievement, applying the Na-
tional Woodwork test, first, to the incidents involv-
ing Local 150, the record falls far short of establish-
ing the General Counsel's thesis that these were ap-
781
plications of the union label article or, in other
words, were "calculated to satisfy union objectives"
beyond the labor relations of the contracting em-
ployers and their employees.
Indeed , the very tenor of Smathers ' conversations
with Havre, Schmidtke , and Johnson clearly points-
to an aim by the Union in those three situations, at
least, to prevent or discourage the use by the con-
tracting employers , in "commercial" construction,
of prefabricated materials made at wage rates lower
than the "construction" scales provided by the
Local 150 contract , and thus deemed by the Union
to be proscribed on projects subject to the agree-
ment . In other words, either expressly, as in
Smathers ' conversation with Havre, or by clear im-
plication , as in Smathers ' discussions with
Schmidtke and Johnson , the Union 's interpretation
of article VIII, previously mentioned , was at the
core of Smathers ' objection , in each of the three
situations , to the use of the prefabricated products
involved.
That view of the matter is unaffected by the fact
that Smathers suggested one or more sources of
supply, whether Curtiss or another firm, where
prefabricated products manufactured at "construc-
tion" rates could be purchased , or that he told
Schmidtke that such a source could be ascertained
from the green directory . These suggestions (in ef-
fect, by the way, solicited by Schmidtke and John-
son) were, in my view , implementations of the
Union 's underlying aim of meeting the "competi-
tion" to the job opportunities and standards of the
employees of the contracting employers and not ap-
plications of the "preference" provisions of the
union label article (which was not even mentioned
in any of the incidents upon which the General
Counsel relies , whether involving Local 150 or
Local 99 ). 1 take , much the same view of Smathers'
intimated threat of a work stoppage by Local 150's
members employed by Schmidtke 's company,if the
latter required them to work on the prefabricated
materials in question.
Nor do the incidents involving From and Kirrage
make the General Counsel's case against Local
150. From 's company was not even a party to the
Local 150 contract at the time in question , and thus
was not subject to the union label article, but
passing that , I find no greater reason to treat
Smathers ' approval of Columbia's products as "the
only one (s) acceptable to the union at the time" as
an application of the union label article than to
conclude that what he means was that they were
thus acceptable because they had been manufac-
tured at "construction " rates . The failure of the in-
cident to give effective support to the General
Counsel 's case becomes particularly evident , when
Smathers ' remark is viewed in the larger context of
"National Woodwork Manufacturers Association v N L R B , decided
April 17, 1967, 386 U S. 612, 64 LRRM 2801, 2813, and cases cited, fn
40
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his prior contract discussions with From, which
centered primarily on article VIII; the Union's pol-
icy in applying these contractual terms; and
Smathers' conversations with Havre, Schmidtke,
and Johnson.
Much the same may be said of Starke's remarks
to Kirrage, objecting to the use of a "type" or
"make" of prefabricated product on a certain pro-
ject, and then agreeing to its use provided "the
other type" was used in the future. The General
Counsel would make of Starke's statements a
requirement that products made by a manufacturer
listed in the union label directory be used, and to
that end he relies heavily on the Tacoma restaurant
meeting some 9 months earlier, but the full context
of that meeting does at least as much to detract
from his interpretation of Starke's remarks to Kir-
rage as to support it.
The restaurant meeting had been called, in part,
to discuss enforcement of wage provisions of the
contract, and a substantial portion of the discussion
centered on the Union's objection to the use, in
`-`commercial" construction, of products made at
rates lower than the contract scale, even if the
materials bore the International's label and their
manufacturer had a union label directory listing;
and it was in that context that the employer
representatives inquired of Starke whether it was
possible to buy prefabricated fittings made at "con-
struction" rates, and that Starke, in reply, named
Columbia as such a manufacturer.
Against that background, I find no compelling
support for the General Counsel's position in the
fact that at the same meeting, Finnegan told Starke
of the difficulty his company had had at two pro-
jects with certain products; that Starke and Fin-
negan consulted the union label directory to ascer-
tain if the manufacturer was listed; that Starke dis-
tributed copies of the directory; and that Finnegan,
who admittedly does not do his company's purchas-
ing and is "not completely familiar" with the manu-
facturing sources of the products bought, 'testified
that his firm no longer buys products from Gensco
and McPherson, purchasing materials from other
sources, including Columbia, because of the
problems encountered at the two projects. The cir-
cumstance that Finnegan's company chose to buy
Columbia products to avoid such problems does
not establish that it did so because of article XV or
that the choice was thrust upon it by Local 150,
particularly bearing in mind the context in which
Starke mentioned Columbia as a manufacturer of
fittings at "construction" rates. In short, giving con-
sideration to the total record, particularly the full
context of the restaurant meeting and the Union's
policy toward the use, in "commercial" construc-
tion subject to its contract, of prefabricated materi-
als made at rates less than those required by the
contract, it would be but a guess to say that the
requirement expressed by Starke to Kirrage many
months after the restaurant meeting was an in-
tended application of the union label article rather
than of the contractual wage provisions applicable
to the installation of prefabricated materials by em-
ployees subject to the agreement.18
The General Counsel's case against Local 99
hinges basically on remarks by Woelke in connec-
tion with two projects, one the subject of his discus-
sion with Servey, and the other with O'Brien,
Bayles' foreman. I reach much the same result in
the case of Local 99 as in that of Local 150.
The course Woelke took with Servey, so far from
giving substantial support to the General Counsel's
position, proceeds in a different direction. Woelke's
question as to the factory source of the pipe at the
project was harnessed, in context, to his query
whether Servey had received a letter from Local 99
specifying a requirement that certain products "had
to be manufactured at the building trades scale."
That that requirement was the focus of Woelke's
dealings with Servey is evidenced, too, by their sub-
sequent discussion, initiated by Servey, of sources
of supply of prefabricated products made at the
"construction" wage scale, and it was in that con-
text that Woelke stated that Servey "could use" the
pipe in question.
That view of the matter is not negated by the fact
that the Union gave or sent Servey a copy of the
union label directory. There can be no doubt that
the directory is designed to induce or encourage
sheet metal contractors such as Servey to use
materials made by unionized employees
represented by one or another of the International's
locals, but taking into account the full context of
Woelke's discussions with Servey, it would be
nothing but a guess -to infer from the delivery of a
copy of the directory an underlying design by
Woelke in his discussions with Servey to enforce
the union label article. On the contrary, from the
tenor of what was said, it is far more reasonable to
believe, and I am persuaded, that Woelke's query
as to the source of the pipe, and his subsequent
is Unlike the General Counsel, I find no effective support for his case in
circular literature distributed by Local 150 to its members urging them to
"look for the Sheet Metal Union Label," and to "ask your employer to
purchase such goods" (G C Exh 8); and stating that each member should
"check for the union label" on all products made outside his own shop, and
report omission of the label to the Union "so that effective action can be
taken to safeguard and protect our complete jurisdiction," that each
member "has the legal right , voluntarily-on his own to refuse to handle
products that do not bear our union label" (G C. Exh 10), and that a
member "should tell (his) employer of (his) preference for union made
products," and report to (his) union office any breach of contract so that
corrective steps can be taken" (G C Exh_ 9) These admonitions and
entreaties, designed to promote the use of union-made products and
encourage union members to report contract breaches, do not convert
Smather's statements to Havre, Schmidtke, and Johnson from applica-
tions of wage provisions of the contract, as their plain tenor attests they
were, into applications of the union label article, nor so illuminate the
relevant statements to From and Kirrage as to mark them as applications of
the union label article rather than of the contractual wage provisions
SHEET METAL WORKERS INTL. ASSN., LOC. 150 783
consent to the use of what was already on hand,
were rooted in Local 99 's "construction" scale
requirement for prefabricated products used by em-
ployers under contract to it.
Woelke 's behavior at the Bayles project is more
difficult of assessment , especially as the relevant
evidence is somewhat lacking in clarity and has a
fragmentary cast . One would be hard put to it to
understand why Woelke would consult the union
label directory "to see if it ( the product ) was union
labelled," without knowing the name of the manu-
facturer ; and it is a matter of inference , rather than
clearly established , that the product Woelke in-
spected was the one O'Keefe discussed with Porter.
Be that as it may, it is undisputed that Woelke did
ask O 'Brien whether the product had been made in
a "union shop " and was "union labelled," ex-
amined it for such a label , and directed suspensions
of the work pending an inquiry by him, but taking
these factors into account , the record nevertheless
falls short of establishing an application of the
union label article or an arrangement between
Bayles and the Union to limit the use of
prefabricated materials only to those made by em-
ployees listed in the union label directory. Woelke's
inquiry of O'Brien whether the products were made
in a "union shop " or "union labelled " was con-
sistent with ' a purpose of locating the name of the
manufacturer in order to determine whether the
product had been made at the "construction " scale.
It would be natural for a union business representa-
tive to look for a union marking in the course of
such an inquiry , and the fact that he looked for the
label could have meant no more than that.
It is noteworthy that O'Keefe , Woelke 's superior,
in his conversation with Porter , made no reference
to labeling or the union label article , but, rather, as
one may infer from the letter he asked Porter to
write the manufacturer , appears to have based his
product objection on the ground that the manufac-
turpr did not pay the "building scale " prescribed by
the Local 99 contract . ( It does not appear whether
such a letter was written .) Moreover , Foreman 0'-
Brien , who is a member of Local 99 , testified that
he does not look for union labels on the products
he handles . In the absence of any evidence that
either he or any other employee on a Bayles project
has made a point of the presence or absence of
such 'a label , I find this testimony credible, and it
serves to cast additional doubt on the interpretation
the General ' Counsel would put on Woelke's con-
duct.
Porter 's testimony that his company made no
further purchases of the product "because it wasn't
... very good" is not inherently implausible but, in
any case , particularly taking into account the fact
that some 76 other companies , in addition to
Bayles , are parties to the Local 99 contract, and
that there is no evidence that the Union has sought
to enforce the union label article with respect to
any of the others, or has even so much as looked
for a union label on any products they have han-
dled, I am unable , in the light of O'Keefe's discus-
sion with Porter , to conclude that the aim in the
one isolated instance portrayed in the record of
inquiry by a representative of Local 99 for a union
label was to apply or enforce the union label article
rather than to ascertain the origin of the product as
a preliminary step to application of the Union's
"construction" scale requirement for prefabricated
products. which, as the General Counsel in effect
admits, has been applied "on numerous occasions"
by Local 99.
The sum of the matter is that the record does not
establish that either of the Respondent Locals "has
maintained and enforced ," within the statutory 6-
month limitation period , any agreement with any
employer whereby the latter has ceased or
refrained, or has agreed to cease or refrain, from
buying, handling , using, selling , transporting, or
otherwise dealing in the products of any other em-
ployer , or to cease doing business with any other
person , in order "to satisfy union objectives"
beyond " the labor relations of the contracting em-
ployer( s) vis-a-vis (their ) own employees." Ac-
cordingly, I shall recommend dismissal of the com-
plaint.
IV. CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact
and the entire record in this proceeding , I make the
following conclusions of law:
1. Each Respondent Local is, and has been at all
material times , a labor organization within the
meaning of Section 2 ( 5) of the Act.
2. Each individual, firm , or company identified
in the record as a party to a collective -bargaining
agreement with either Respondent Local is , and has
been at all material times , an employer within the
meaning of Section 2 ( 2) of the Act.
3. The record does not establish that either
Respondent Local has engaged in any of the unfair
labor practices imputed to it in the complaint.
[Recommended Order omitted from publica-
tion. ]