Sheet Metal Workers Union Local 162

National Labor Relations Board - Board Decisions

Dec 6, 1973

207 N.L.R.B. 741 (N.L.R.B. 1973)

SHEET METAL WORKERS UNION LOCAL 162 741
Sheet Metal Workers Union, Local 162, Sheet Metal
Workers' International Association , AFL-CIO and
Associated Pipe and Fittings Manufacturers and
Sheet Metal and Air Conditioning Contractors
National Association , Sacramento Valley Chapter,
Inc., Party to the Contract
Sheet Metal Workers Union, Local 162, Sheet Metal
Workers' International Association, AFL-CIO and
National Insulation Manufacturers Association and
Sheet Metal and Air Conditioning Contractors
National Association, Sacramento Valley Chapter,
Inc., Party to the Contract . Cases 20-CE-92-1
and 20-CE-92-2
December 6, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND PENELLO
On September 10, 1973 Administrative Law Judge
Louis S. Penfield issued the attached Decision in this
proceeding. Thereafter, the Charging Parties filed
exceptions, the General Counsel filed a brief, and
Respondent filed a brief in response to the Charging
Parties' exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
mento, California, on April 17, 18, and 19, 1973.1 The
complaint is based on charges filed respectively by
Associated Pipe and Fittings Manufacturers, herein called
Associated Pipe, and National Insulation Manufacturers
Association, herein called NIMA, on September 11, 1972.
Copies of each of the charges were duly served upon the
parties. The consolidated complaint issued on October 4,
1972, and alleges that Sheet Metal Workers Union Local
162, Sheet Metal Workers' International Association,
AFL-CIO, herein called Respondent, engaged in unfair
labor practices in violation of Section 8(e) of the Act. All
parties were given full opportunity to participate in the
hearing and after the close thereof the General Counsel,
the Charging Parties, and Respondent each filed briefs.
Upon the entire record in this consolidated proceeding,
and upon my observation of the witnesses and their
demeanor, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Sheet Metal and Air Conditioning Contractors National
Association, Sacramento Valley Chapter, Inc., herein
called SMACCNA, is a voluntary association of employers
engaged in business as contractors in the heating and air
conditioning industry in and around Sacramento, Califor-
nia. At all material times, SMACCNA has existed for the
purpose of representing its member employers in collective
bargaining, and participating in the negotiation, execution,
and administration of collective-bargaining agreements on
behalf of its member employers with various labor
organizations including Respondent. The member employ-
ers of SMACCNA in the normal course and conduct of
their business operations annually purchase and receive
goods and merchandise valued in excess of $50,000 directly
from suppliers located outside the State of California. I
find that at all material times'SMACCNA, and its member
employers, are employers engaged in commerce or in
operations affecting commerce, within the meaning of
Section 2(2), (6), and (7) of the Act, an assertion of
jurisdiction to be appropriate,
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent , Sheet Metal Workers
Union, Local 162, Sheet Metal Workers' Internation-
al Association , AFL-CIO, its officers, agents, and
representatives, shall take the action set forth in the
said recommended Order.
DECISION
STATEMENT OF THE CASE
Louis S. PENFIELD, Administrative Law Judge: This
consolidated proceeding was heard before me in Sacra-
II. THE LABOR ORGANIZATION INVOLVED
Respondent is, and at all material times has been, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The conduct alleged as violative of the, Act relates to
1 The record formally opened on January 3, 1973, following an off-the-
record prehearing conference. It was agreed at that time that there were
many issues which might be stipulated and that this could result in ]muting
the issues to be litigated. By mutual consent, the matter was continued until
January 16, and subsequently further continued until January 19. On
January 19, certain stipulations of fact to which the parties had agreed were
made a part of the record. It was represented that the record could be
further shortened by the introduction of certain questionnaires if such
questionnaires could be circulated among the contractors . It was mutually
agreed that no testimony would be taken until this had taken place Thus at
these three earlier hearing dates, no evidence came into the record with the
exception of the formal papers and a written stipulation. The "party to the
contract," although duly served, entered no appearance at any time.
207 NLRB No. 132
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain provisions of a collective -bargaining -agreement
between Respondent and SMACCNA, also binding on
nonmember contractor signatories . It is claimed- that
certain clauses in the contract have the unlawful secondary
object of disrupting the traditional and customary method
by which the contractors had been doing business with
their suppliers, and that accordingly such clauses are
violative of Section 8(e) of the Act. Respondent asserts that
these clauses do not have a secondary object , but have the
lawful primary object of protecting, preserving, or reclaim-
ing work which had customarily ' and traditionally been
performed by its members who were , employed by the
contractors.
To resolve the issues presented, it will be necessary to
consider : (1) the general manner in which the heating and
air conditioning industry functions ; (2) the specific
contract provisions in controversy , and the stipulations
reached which limit the issues ; (3) evidence relating to the
manufacture or fabrication of the disputed items in the
past; and (4) the legal issues , with which we are concerned
and their applicability to the facts as developed.
A. The General Manner in Which the Industry
Functions in the Area
The approximately 50 employer members of
SMACCNA, and the approximately 40 contracting parties
signatory to the' collective-bargaining agreement with
Respondent, are each contractors engaged in the heating
and air conditioning industry in Sacramento and other
areas in Northern California. Most of these contractors
operate relatively small businesses. Each contractor has a
shop in which he has a variety of sheetmetal fabricating
equipment. In most cases this equipment will be manually
operated. The employees of these contractors are appren-
tice and journeymen sheetmetal workers. Their jobs are to
undertake needed fabrication at the shop and to install
heating and air conditioning units at construction sites. In
some instances the items installed will be stock items
obtained from a manufacturer; in others the items will
have been fabricated in whole or in part in the contractor's
shop. Some contractors are engaged in residential projects
exclusively; others in commercial projects exclusively; still
others in a combination of both. While each individual
contractor has the capability of fabricating virtually any
needed sheetmetal item in his shop, the contractors also
regularly purchase and stock numerous prefabricated items
obtained from manufacturers who have produced them on
a mass production basis.
Sheet Metal Workers' International Association has
affiliated locals characterized as'construction locals and
production locals, respectively. Respondent is a typical
construction local whose membership is comprised of
apprentice and journeymen sheetmetal workers who do
shop work for,, and installations on, construction jobs.
Production locals, however, have a membership comprised
of less skilled employees who work for the manufacturing
companies doing production line work on a wide variety of
the sheetmetal items which may be purchased by contrac-
tors or others for use in heating and air conditioning
installations. The average contract wage scale for construc-
tion locals is normally two or more times that of
production locals.
Associated Pipe , a Charging Party, is an -employer
association whose membership is comprised of manufac-
turers who engage in the mass production of various
sheetmetal items. Among others the customers of its
members include the contractors who are parties to the
SMACCNA contract. Associated Pipe and its members
have collective-bargaining relationships with Sheet Metal
Workers Local 355, a production local. The pertinent
contract provides an average wage of approximately $3.70
an hour, as contrasted with the journeymen wage of
approximately $9 an hour found in Respondent's contract
with SMACCNA.
NIMA, also a Charging Party, is an employer association
engaged in the manufacture and distribution of fiberglass
flexible and nonflexible duct also used in the heating and
air conditioning industry. The contractual provisions, the
stipulations, and the use of such materials in the industry
will be considered further below.
B. The Contract Provisions and the Stipulations
Limiting the Issues
Respondent and SMACCNA executed the collective-
bargaining agreement in controversy on or about June 29,
1972. It is entitled "Standard Form or Union Agreement,"
and is to be effective from July 1, 1972, to June 30, 1973.
Nonmember contractors subsequently became, bound to
the agreement by individual signings. In relevant part, this
agreement contains the following provisions:
ARTICLE I
SECTION 1. This agreement covers the rates of pay,
rules and working conditions of all'employees of the
employer engaged in but not limited to the (a)
manufacture, fabrication, assembling, handling,
erection, installation, dismantling conditioning, adjust-
ment, alteration, repairing and servicing of all ferrous
or nonferrous metal work of U.S. No. 10 gauge or its
equivalent or lighter gauge and all other materials used
in lieu thereof and of all air-veyor systems and air
handling systems regardless of materials used including
the setting of all equipment and all reinforcements in
connection therewith; (b) all lagging over insulation
and all duct lining; (c) testing and balancing of all air-
handling equipment and duct work; (d) the preparation
of all shop and field sketches used in fabrication and
erection, including those taken from original architec-
tural and engineering drawings or sketches, and (e) all
other work included in the jurisdictional claims of
Sheet Metal Workers' International Association.
ARTICLE II
SECTION 2. Subject to other applicable provisions of
this Agreement, the Employer agrees that when
subcontracting for prefabrication of materials covered
herein, such prefabrication shall be subcontracted to
fabricators who pay their employees engaged in such
fabrication not less than the prevailing wage for
SHEET METAL WORKERS UNION LOCAL 162 743
comparable sheet metal fabrication, as established
under provisions of this Agreement.
ARTICLE VIII
SECTION 2. On all work specified in Article I of this
Agreement, fabricated and/or assembled by journey-
men sheet metal workers and/or apprentices within the
jurisdiction of this Union, or elsewhere, for erection
and/or installation within the jurisdiction of any other
Local Union affiliated with Sheet Metal Workers'
International Association, whose established wage
scale is higher than the wage scale specified in this
Agreement, the higher wage scale of the job site Union
shall be paid- to the journeymen-employed on such
work in the home shop or sent to the job site.
SECTION 3. The provisions of Section 2 of this
Article, Section 2 of Article II and Section 1 of Article
III shall not be applicable to the manufacture for sale
to the trade or purchase of the following items:
- Adjustable elbows shall be excluded on any size
commercial or industrial installation.
There shall be no restriction on T's, Y's, elbows and
round pipe on any installation of three thousand two
hundred (3,200) square feet or less.
It is expressly understood that all architectural sheet
metal items regularly catalogued by manufacturers are
excluded from restrictions in this section. (Articles I
and II of the Standard Form of Union Agreement shall
apply)-
A warehouse, not served by a duct system, would not
be considered for the criteria for the three thousand
two hundred (3,200) square foot restriction; drops from
evaporative coolers will not be classified as duct
systems.
Contractors may call Business Manager and Associ-
ation Manager for specific job relief where job
conditions dictate use of flex duct to avoid construction
members, trusses, etc. Decision must be unanimous to
afford relief.
Flex duct, not to exceed six (6) feet in length may be
used at the end of duct runs.
1. Ventilators 6. Mixing (attenuation) boxes
2. Louvers 7. Plastic skylights
3. Automatic and fire dampers 8. Air diffusers, grilles, registers
4. Radiator and air conditioning unit enclosures 9. Sound attenuators.
5. Fabricated pipe and fittings manufactured at The obvious purpose of these contract provisions is to
production wage rates shall be used for residential
installations only.
Residential heating and cooling shall be defined as
applying to work on any:
(a) Single family dwelling.
(b) Multiple family housing unit where each individ-
ual family apartment is individually conditioned by a
separate and independent unit or system.
(c) Buildings (other than residential) that consist of
three thousand two hundred feet (3200) or less shall be
considered residential.
All rectangular ductwork and fittings. Commercial,
Institutional and Industrial work (Local Building and
Construction Wage Rate).
Definition of Residential Pipe and Fittings:
(a) Round pipe and elbows.
(b) Boots, round to rectangular transitions and "Y"
joints.
(c) Register boxes.
(d),Wall riser pipe and user ells and angles up to 3
1 /2 x 14".
(e) Furnace smoke or vent pipe (no restriction to
commercial or industrial work).
This category of work does not include:
(f) Plenums.
(g) Rectangular duct work or its accessories or
fittings.
This section shall be in effect on all jobs bid after
July 1, 1972.
All underground non metallic duct shall be excluded
from restriction on commercial and industrial jobs.
restrict the contractors with respect to their right to
purchase or to subcontract for the manufacture of various
items to be used in their installations . This object is to be
achieved by requiring that certain of the items be
fabricated either by the employees of the contractors, or
else purchased only from, shop's whose employees are paid
a wage scale no less than that called for in the SMACCNA
contract. The effect would be to forbid the purchase of
certain sheetmetal items for use on commercial projects of
more than 3,200 square feet from manufacturers whose
employees continued to be paid at the lower production
local scale.
The somewhat confusing and broad language in the
quoted contract provisions was defined and limited by
stipulations of the parties.
'Thus it was stipulated that some 17 listed items had "not
been customarily or traditionally manufactured by em-
ployees in the bargaining unit...." This stipulation
means that the contract is not to be interpreted as imposing
any restrictions whatsoever upon the purchase of any of
such named items from any source.
Conversely, it was also stipulated that certain other
items, "including rectangular duct and fittings, plenums
and spiral duct, had customarily and traditionally been
fabricated by employees in the bargaining unit ...: . This
amounts to an acknowledgment that fabrication of such
items is "unit work" of the employees of the contractors.
Thus any restrictions imposed by the contract on the
purchase or fabrication of such items would be lawful and
appropriate.
It was further stipulated that round metallic pipe and
fittings and certain other items had "not been customarily
and traditionally fabricated by employees in the bargain-
ing unit . . . when working on residential projects and all
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commercial projects which do not exceed 3,200 feet."This is
an acknowledgment that when contractors work on
residential projects, or on commercial projects of an area
less than 3,200 square feet, the contract is not to be
interpreted as imposing any restrictions whatsoever on the
purchase of round metallic pipe and fittings from any
source.
The parties finally stipulated "that non-metallic flexible
duct had been used on residential and commercial projects
(including` commercial projects in excess of 3,200 square
feet) without enforced regulations as to the length of the
duct." It is conceded that none of the contractors has the
capacity to fabricate fiberglass duct whether rigid or
flexible and that by entering into this stipulation Respon-
dent was abandoning any claim which this contract might
appear to give to restrict the use of nonmetallic round pipe
or flexible duct. It was generally agreed that the result of
this stipulation was to remove the use of fiberglass duct as
an issue to be litigated in this proceeding. The Charging
Parties, however, urge that restrictive language remains in
the contract which on its face has an unlawful secondary
object and that enforcement of such provision should be
enjoined.
The result of the foregoing stipulations is to narrow the
area of controversy before us to the lawful or unlawful
nature of the contract restrictions with regard to the
following items when used on commercial projects in
excess of 3,200 square feet: (1) Round and metallic pipe in
excess of 6 inches in diameter but not exceeding 24 inches
in diameter, and not heavier than 24 gauge nor lighter than
32 gauge; (2) T's and Y's under 24 inches in diameter; (3)
register or defuser boxes; and (4) tapers.
The General Counsel and the Charging Party claim that
such items had not been customarily or traditionally
fabricated by employees in the bargaining unit, but had
been purchased by the contractors from manufacturers
who produced such items on a mass production basis.
Respondent disputes this claim asserting that the record
shows such items to have been fabricated in sufficient
measure in the past by employees of the contractors to
support a claim that such fabrication is fairly claimable
unit work.
The record shows that collective-bargaining contracts
between Respondent and the contractors have been in
effect for some period of time. In the 1960 agreement there
were similar restrictions upon use of round pipe, but no
distinction was made between their use on residential as
opposed to commercial projects. The agreements in effect
from 1963 to 1969 omitted the restrictions as to residential
projects, but imposed them on all commercial projects. The
1972 agreement, with which we are now concerned, is the
first one to limit the restrictions solely to commercial
projects in excess of 3,200 square feet.
C. The Evidence Relating to the Fabrication or
Manufacture of Round Metallic Pipe and Fittings
Before the law applicable to the controversy can be
resolved, we must first consider factual questions relating
to past practices in the industry regarding the use of round
pipe and fittings.
Wellmade Company, one of the eight member manufac-
turers of Charging Party Associated Pipe, has for many
years been engaged in the mass production of sheetmetal
items, including round metal pipe and fittings. Wellmade's
operation is apparently typical of that of other members of
Associated Pipe who have also been supplying contractors
covered by the SMACCNA contract with a variety of
sheetmetal items. Wellinade produces a full catalogue of
sheetmetal items. It has a capital investment in power
equipment which exceeds $100,000. It uses 20,000 square
feet of space to carry on the fabrication of sheet metal
items, and uses another 50,000 square feet for the storage
of raw materials and the warehousing of finished products.
Wellmade produces round pipe in diameters of 4 to 24
inches, and produces the same pipe in lengths of 2-1/2 feet,
5 feet, 7-1/2 feet and ' 10 feet. The round pipe is
manufactured on a production line. The process commenc-
es with a sheet of metal being sheared to correct size. A
machine will then stamp a button lock on one side of the
pipe and a snap lock on the other side. Another machine
will then bend the metal into a round shape and crimp the
ends so that pieces of pipe can be joined together. In
addition, Wellmade produces various types of fittings to be
used in connection with such round pipe. Wellmade's
finished products are shipped to various distributors in
Northern California. Sheet metal contractors may pur-
chase such pipe and fittings from these distributors to meet
the needs of their installations. It was testified that round
pipe, with a snap-button lock can only be produced by
machines. Installation of pipe with such locks is relatively
simple as it requires no use of hand-tools at the jobsite.
Round pipe produced in a contractor's shop uses a so-
called hammer lock. This requires the use of hand-tools by
the employee making the installation at the construction
site. The most commonly purchased length of round pipe is
5 feet, and the next most common size is 10 feet. Identical
round pipe is used for both residential and commercial
projects. The employees of Wellmade, and presumably the
other manufacturers, do routine, repetitive work and are
primarily trained on the job. They are not normally
journeymen or apprentice sheet metalworkers. Employees
of Wellmade, and presumably the other members of
Associated Pipe, are covered by a collective-bargaining
agreement with Sheet Metal Workers Local 355, a
production local, whose employees are paid at an average
wage rate of $3.70 per hour as contrasted with a wage of $9
per hour for a journeyman sheetmetal worker under the
SMACCNA contract.
Each of the contractors covered by the SMACCNA
agreement who engages in some commercial work in excess
of 3,200 square feet has at least a limited capacity to
produce round pipe and fittings in his shop for use on his
construction jobs. In most instances, this will be done on a
hand-operated roll which can fabricate round pipe in
lengths of usually no more than 3 feet. Only one contractor
is shown to have a 10-foot roll. One or two others have 4-or
5-foot rolls. None of the contractors can fabricate round
pipe snap-locks.
Evidence concerning customary and traditional practices
of contractors bound by the SMACCNA contract was
supplied primarily from material in questionnaires sent out
to such contractors. This was supplemented and explained
SHEET METAL WORKERS UNION LOCAL 162 745
in some measure by testimony at the hearing. The
contractor questionnaire was prepared jointly by the
General Counsel, the Charging Parties, and the Respon-
dent. It was sent to 85 contractors in the Northern
California area. These contractors were asked, in sub-
stance, the number of employees each had, whether or not
each used any round metallic pipe or fittings on commer-
cial projects in excess of 3,200 feet, and the amounts of
such materials purchased as contrasted with the amounts
fabricated. Such data was asked for individual years from
1968 through 1972, and for the periods 1963 to 1967, 1958
to 1962, and 1953 to 1957. Each contractor was also asked
to give the number of feet of such round metallic pipe he
had used on such commercial projects during the same
years and periods. Some 60 responses were received from
the contractors. Of these, only 32 signified that they
worked on commercial projects in excess of 3,200 square
feet. It is from a consideration of these 30 questionnaires,
plus supportive testimony from contractors who may or
may not have submitted questionnaires, and from the
testimony of a former business agent that evidence relating
to the customary and traditional practices in the industry
with regard to the use of round pipe and fittings was
developed in this record.
Twenty-seven questionnaires returned by the contractors
were offered in evidence by the General Counsel and
received without objection. Five additional questionnaires
were placed in evidence by Respondent. Sixteen contrac-
tors or their representatives gave supplemental testimony.
With some exceptions, to be discussed below, the question-
naires and the supportive testimony follow a singularly
uniform pattern. In most cases the questionnaires them-
selves and the supplemental testimony, if any, shows it to
have been the general practice of the overwhelming
majority of the contractors to purchase most, if not all, of
the round pipe and fittings which they used on commercial
installations in excess of 3,200 square feet, from distribu-
tors for manufacturers like Wellmade.2
Estimates of purchases from manufacturers run from 85
to 100 percent of all the round metallic pipe and fittings
used on the relevant installations. With few exceptions, this
is a consistent pattern followed by nearly all the contrac-
tors, sometimes for as much as 10 to 20 years. There is
consistent testimony that most contractors depended on
hand-operated, limited length equipment in their own
shops in fabricating round pipe items, and that the use of
such equipment operated by employees paid at the higher
construction local scale rendered the fabrication of round
pipe and fittings less efficient, of a lesser quality, and from
2 to 5 times more costly than it would be to obtain such
items by purchase from the manufacturers. It is because of
2 The questionnaires broke down the percent of purchases as contrasted
to fabrications with respect to round pipe and fittings separately. The
percent of purchases ran slightly higher for round pipe as opposed to
fittings, but the differences were so small they cannot be regarded as having
significance as to the issues before us . Accordingly, for practical purposes, I
shall treat them as being substantially the same. Thus references to
purchases or fabrications of round pipe shall be deemed equally applicable
to fittings and vice versa.
3 These contractors include Bos Sheet Metal, Inc., Deal Sheet Metal,
Inc., Bill Jones Plumbing, Inc ., Park Sheet Metal Works, Clarke & Rush Air
Conditioning and Heating Co., Camellia City ' Mechanical, Lawson
Mechanical Contractors , Pemn Heating and Air Conditioning, Williams
this that the contractors had so uniformly satisfied their
round pipe needs by purchases from the manufacturers,
and had resorted to fabrication only in those instances
where the project specifications called for items not
catalogued by manufacturers, or when needed items were
not stocked by the distributors so as to be available on
short notice.
Respondent makes no effort to dispute that the respon-
ses follow the foregoing pattern, but it undertakes to
diminish their significance by asserting that a significant
number of the contractors responding signified that their
use of metallic round pipe on commercial projects was
insignificant in quantity and thus their past practices
should be disregarded in determining any "regular and
traditional" pattern. Respondent claims further that a look
at the responses from some of the other contractors who
are more substantially engaged in commercial work shows
them to have engaged in sufficient fabrication of round
pipe and fittings in the past to support the claim that this is
fairly claimable unit work. On the one hand, Respondent
notes some 21 contractors who submitted questionnaires,
testified, or both, whose involvement in restricted commer-
cial work is viewed as nominal.3. On the other hand,
Respondent names 12 contractors whose past practices and
involvement in commercial work is viewed as supporting
its claim that the fabrication of round pipe and fittings
should be regarded as customary and traditional unit
work.4 It thus becomes necessary that we give some more
detailed consideration to the practices as shown with
regard to these contractors.
Berkan and Clark Sheet Metal, Inc., is a Sacramento
contractor which has been in business for some 20 years. It
employs approximately 20 sheet metal workers. This
contractor currently purchases 100 percent of its round
pipe needs, and has done so since 1967. In the period from
1958 to 1962, however, the questionnaire indicates that the
contractor fabricated approximately 40 percent of its
round pipe needs, and during the period from 1953 to 1957
approximately 50 percent. It was developed in the
testimony of a representative of the contractor, however,
that during these periods the contractor was engaged, in
substantial measure, in so-called "plan and spec" work
which required the use of specialty pipe not available by
purchase from a manufacturer. The contractor testified
that as a consequence it was required to fabricate round
pipe items to meet the specifications, but had such items
been available in a manufacturer's catalogue "we would
have bought it"
Bruce Nickel Heating and Air Conditioning Co. is a
Sacramento contractor with four employees. In the years
1968 and 1969, and during the period from 1953 to 1968,
Heating and Air Conditioning, Environmental Conditioning, Ace Air
Conditioning and Engineering , LeRoy Hall Sheet Metal, J Barth Co., B &
B Sheet Metal, Ray O. Cook Mechanical Contractor, West Sacto Sheet
Metal, Koller Plumbing Company, Herb Bowles, d/b/a Treichler Sheet
Metal and Plumbing , H.P. Curtis, Soracco's, and Even Temp, Inc
4 These include Berkan and Clark Sheet Metal, Inc, Shasta Sheet Metal,
Inc., Bruce Nickel Heating and Air Conditioning, Norcal Mechanical and
Electrical Company, Don Ring Heating Co., Inc., Wilbur Heating and Air
Conditioning, Inc., Frank M. Booth , Inc., Atlas Mechanical, Inc.,
Systemaire, Inc, Mid-Valley Heating and Air Conditioning, Davis and Jull,
and Sewell Sheet Metal.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nickel purchased 100 percent of its round pipe needs on
commercial projects from manufacturers. In the year 1970,
the owner became disabled and the business did not
function. When Nickel resumed operations in 1971, he was
pressed by Respondent to abide by restrictions in the
existing contract, and as a result of such pressure was
compelled to find a substitute for the use of fiberglass
round pipe on one of his jobs. This substitution cost Nickel
$8,000. Nickel testified that because of this experience, and
in an effort to avoid its repetition, he thereafter undertook
to fill his round pipe needs by purchases from a shop in
Sacramento which has fabricated such round pipe at
construction local rates.
Wilbur Heating and Air Conditioning, Inc., is a
Sacramento contractor who has been in business since
1970. The questionnaire that Wilbur submitted states that
since 1970, it has fabricated 100 percent of its round pipe
needs. Wilbur's testimony, however, discloses this state-
ment not to be entirely accurate. Thus Wilbur testified that
he commenced fabricating round pipe only after the
purchase of certain automatic equipment whereby it
became possible to fabricate such pipe in 10-foot lengths.
This purchase occurred approximately 1-1/2 years prior to
the hearing date, which would place it at some point in the
fall of 1971. Wilbur acknowledges that prior to this time his
round pipe needs were filled by the purchase of such
manufactured items as were obtainable. Wilbur further
testified that the 10-foot roll was only half of a package of
a sheet metal machinery purchase, and that he deemed the
entire package to be a good investment. Wilbur stated that
he did not buy the 10-foot roll for the specific purpose of
enabling him to fabricate his round pipe needs, but that
once having it it became economical for him to engage in
such fabrication and to undertake such other work as he
might get in order to make use of the equipment. Insofar as
the record shows Systemaire and one or two nonunit
contractors have so far been the only others to whom
Wilbur has sold round pipe. Wilbur concedes, however,
that even using this machinery, he finds it necessary to sell
his round pipe items at prices which exceed by 15 percent
the cost of similar round pipe purchased from the
manufacturers. Wilbur is the only contractor in the area
possessing a 10-foot roll.
Frank M. Booth, Inc., is a sheetmetal contractor with
shops located in Redding, Marysville, and Sacramento. His
questionnaire shows that since 1963, Booth has purchased
approximately 80 percent of its round pipe needs for
commercial projects. Prior to this time 50 percent of the
round pipe used was fabricated in the period from 1958 to
1962, and 100 percent during the period from 1953 to 1957.
Booth testified that his company regarded it as economical
to purchase round pipe and fittings up to diameters of 18
inches, but that the company viewed it to be more
economical to fabricate round pipe of diameters greater
than 18 inches. Booth testified, however, that the needs of
his company for round pipe were relatively small since on
its commercial projects it used primarily rectangular pipe.
Atlas Mechanical, Inc., is a Sacramento contractor
employing approximately 25 persons. The questionnaire
shows that at all times since 1962 this contractor had
fabricated approximately 50 percent of its round pipe
needs . During the same period, however, it had purchased
some 90 percent of the round pipe fittings used. James
Jones, vice president and co-owner, testified that his
company fabricated more pipe than some others because
of circumstances which enabled it to do so at a cost lower
than that of other contractors. Jones states that this came
about because it possessed a relatively costly so-called
Welty-Way machine. This is an automatic type of machine
which cuts flat sheets of metal in a programmed fashion
with great speed and efficiency. The Welty-Way machine,
however, was neither purchased nor designed for the
production of round pipe. Jones testified that the largest
portion of his business involves the use of rectangular or
square duct installations, and that the primary use of the
Welty-Way machine is to aid in the fabrication of this sort
of item . The machine, however, is a costly one and the
contractor deems it desirable to keep it in operation as
much as possible, and thus when the machine is not in use
for its primary function, it becomes advantageous to use it
in conjunction with a 5-foot roll to meet the contractor's
lesser round pipe needs. Two other unit contractors are
also shown to possess Welty-Way machines.
Systemaire, Inc., is a Sacramento contractor employing
sheet metal workers. This contractor commenced business
in 1969 and, according to the questionnaire submitted,
purchased 100 percent of its round pipe needs in the years
1969, 1970, and 1971. William Kriz, president, testified
however, that commencing approximately 8 or 9 months
prior to the hearing he began making purchases of the
larger diameter round pipe used from Wilbur Sheet Metal
Inc. Kriz testified that he had commenced this practice
because one of his employees had advised him that the
contract with Respondent required it when round pipe was
to be used on commercial jobs, and that it was his intention
to continue such practice with respect to the larger sizes
inasmuch as he felt Wilbur to be reasonably competitive in
price on such items . Kriz acknowledged, however, that
even with respect to the larger sizes his cost was greater
than had he purchased the same items from manufacturers.
Kriz concedes, however, that prior to the time that Wilbur
got his 10-foot roll 100 percent of his round pipe needs had
been filled by purchases from manufacturers.
The other six contractors that Respondent cites as being
more representative of industry practice have with but one
exception submitted questionnaires which show each to
have filled his round pipe needs by the purchase of 90 to
100 percent of the items used from manufacturers. The
exception is Mid-Valley Heating and Air Conditioning Co.
which did not submit a questionnaire. Clarence Tyer, its
president, indicates that Mid-Valley fabricates approxi-
mately 30 percent of the round metallic pipe it uses. Tyer
testified, however, that during the year 1972 he had only
one commercial job. Respondent concedes that this
contractor's practices show very little with respect to area
practices.
Donald M. Lahr was called as a principal witness for
Respondent to testify concerning industry practices. Lahr
testified that he had first worked as an apprentice in the
sheetmetal industry within the' jurisdiction of Respondent
in 1949, but in 1952 he had become a journeyman, and that
commencing in March 1961 he had become a business
SHEET METAL WORKERS UNION LOCAL 162
agent, and at a later time business manager of Respondent.
Lahr had left the latter position in November 1972 to take
a place on the staff of Sheet Metal Workers' International
Association, a position he was holding at the time of the
hearing. Lahr testified that during the time he had worked
as a journeyman in the sheetmetal industry during the
1950's it had been the consistent practice of the contractors
for whom he had worked to fabricate the round pipe and
fittings which they used on both the residential and
commercial jobs. He further testified that after becoming a
representative of Respondent he had both observed and
learned through reports of members that the usual practice
among local contractors was to fabricate the round pipe
fittings which they were to use on their commercial jobs.
This testimony suggests it to be in the industry practice for
the contractors to fabricate round pipe in their shops as
needed for commercial jobs. However, Lahr subsequently
testified that "the contractors have flagrantly been violat-
mg the collective-bargaining agreement during the past few
years." This would suggest that at least in recent years the
contract restrictions were not being observed by the
contractors. One of the contractors for whom Lahr had
worked was J. H. Mendenhall Sheet Metal, Inc. Lahr
testified that while he was working for this contractor
"everything was fabricated in the shop" that pertained to
commercial jobs. William E. Thompson, a partner for the
contractor, directly contradicts Lahr, testifying that for the
past 15 years the firm had "been purchasing and using the
manufactured round pipe and fittings on commercial jobs"
and that "his workers rarely fabricate round pipe fittings
which are available from the manufacturers."
Al Dunn, executive manager for SMACCNA and a
member of the negotiating committee, testified without
contradiction that the restrictions on the use of round pipe
found in the contract since 1963 had not been strictly
enforced. Dunn states, however, that during the course of
the negotiations for the current 1972 contract, Lahr had on
several occasions represented to the negotiating committee
that Respondent "would definitely enforce the restrictions
relating to the use of round pipe and fittings on
commercial jobs in excess of 3,200 square feet."
D. Discussion of the Issues and Conclusions
This case involves solely an alleged violation of Section
8(e) of the Act. Section 8(b)(4) of the Act was originally
designed to limit the scope of union-employer controver-
sies to the parties primarily involved by forbidding
attempts to involve other persons as a means of resolving
the primary dispute. Section 8(e) was enacted to supple-
ment this so-called secondary boycott section by forbid-
ding employers and unions to enter into contracts which
had a similar secondary thrust. These contract provisions
usually required an employer to cease handling the
products of, or to cease doing business with, certain other
persons. No purpose will be served here by a detailed
recitation of the legislative history of the sections, or by
describing in detail the Board and court interpretations
which define the various types of conduct proscribed.
5 Local Union No 141 of the Sheet Metal Workers International Assn., 174
NLRB 1153 (1969), enfd 425 F.2d 730 (CA. 6, 1970); Sheet Metal Workers
Union, Local 216, 172 NLRB 35 (1968); Sheet Metal Workers International
747
Suffice it to say that it is now well established that not all
contractual provisions which forbid subcontracting, or
have the effect of limiting in whole or in part the persons
with whom an employer may do business are unlawful
within the meaning of the statute. An important limitation
is to be found in what may be described as the work
preservation doctrine. This doctrine has its most definitive
exposition in the Supreme Court decision in National
Woodwork Manufacturers Association v. N.L.RB., 386 U.S.
664 (1964). In that case the Supreme Court set forth the
rationale of the doctrine in the following language:
The determination whether the "will not handle"
sentence of rule 17 and its enforcement violated
Section 8(e) and Section 8(b)(4)(B) cannot be made
without an inquiry into whether, under all the sur-
rounding circumstances, the Union's objective was
preservation of work for Frouge's employees, or
whether the agreements and boycott were tactically
calculated to satisfy union objectives elsewhere. Were the
latter the case, Frouge, the boycotting employer, would
be a neutral bystander, and the agreement or boycott
would, within' the intent of Congress become secondary.
There need. not be an actual dispute i with the
boycotted employer, here the door manufacturer, for
the activity to fall within this category, so long as the
tactical object of the agreement and its maintenance is
that employer, or benefits to other than the boycotting
employees or other employees of the primary employer
thus making the agreement or boycott secondary in its
aim. 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. [Em-
phasis supplied.]
We face a work preservation issue in the instant case
which is controlled by the application of the foregoing
National Woodwork rationale to the facts, before us.
The concept is not a new one as applied to the sheet
metal industry, but has come before the Board and courts
in cases involving similar contractual restrictions 5 The
Board in Sheet Metal Workers Union, Local 216, supra, was
confronted with an almost identical situation regarding the
use of round pipe. In finding the contractual provisions
violative of Section 8(e) the Board stated:
Whether or not [the provisions violate Section 8(e)] is
to be determined by the object of the clauses in
question. In this instance, as is generally true in cases in
which this section of the Act is involved, "the
distinction to be drawn as best one can is between an
object and a consequence." If the contractual provi-
sions in question had as their object the preservation or
protection of work traditionally and customarily
performed by employees in the bargaining unit, as the
Respondent contends, they may be held harmless; but
if instead they were designed to accomplish other union
objectives as the General Counsel and the Charging
Parties assert, they are proscribed by the provisions of
Association Local No. 150, 170 NLRB 772 (1968); Local Union No. 26 of
Sheet Metal Workers International Association , AFL-CIO, et at (Rena
Employers Council), 168 NLRB 893 (1967).
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(e). The evidence shows that the employer
members of the contractors normally and regularly
purchased from mass production manufacturers, a
majority of all but one of the items listed in Article
VIII, section 3, except in those situations where an
emergency existed and the contractor could not wait
for delivery; or where a special shape- or special
materials (such as copper, brass or stainless steel) were
required and the items were therefore not available
from a manufacturer; or in those cases when work in
the individual sheet metal shops was slack and the
employer wished to keep his employees at work instead
of sending them home.
We must first resolve the issue of customary and
traditional industry practice with regard to the purchase of
round pipe items as opposed to their fabrication when used
by the contractors on the restricted commercial jobs. If it
can be shown that the contractors filled their round pipe
needs for such jobs with a fair degree of regularity by
having their own employees fabricate the items, it is a fair
inference that the object of the restrictive provisions is to
preserve work for unit employees. If, however, this has not
been the customary and traditional pattern, but the round
pipe needs have been more regularly met by purchase from
manufacturers, it becomes a fair inference that the object
of such clauses is "tactically calculated to satisfy union
objectives elsewhere." Such objectives might be either to
obtain additional work for unit employees, or to put
pressure on the manufacturers to pay the construction
local scale if they wished to retain the business of the
contractors. Either objective would have the effect of
disrupting an existing business relationship with the
manufacturers not for the lawful primary purpose of work
preservation for unit employees, but for the purpose of
attaining general union goals.
As set forth above, the evidence in this record which
relates to customary and traditional industry practices is to
be found principally in the questionnaires, and in certain
supplemental testimony adduced from contractors and
others. It is shown that of some 35 contractors who appear
to engage in any commercial work in excess of 3,200
square feet, the overwhelming majority purchase from 90
to 100 percent of the round pipe and fittings each uses on
his construction jobs from mass production manufacturers,
and that this has been a continuous practice on the part of
most of the contractors for periods ranging up to 20 years.
The evidence also shows that this practice was followed by
the contractors because, in general, they regarded the
products purchased as not only substantially cheaper, but
of better quality than it would be possible for most
contractors to fabricate in their shops with the limited
hand-operated equipment that each possesses . Thus it is
clear from this record that with but few exceptions the
contractors only undertake to fabricate round pipe and
fittings when the special needs of a particular job cannot
be filled with items catalogued by manufacturers, or when
catalogued items are not readily available on short notice.
Respondent makes no effort to dispute the accuracy of
the percentage figures submitted, but it undertakes to
diminish their significance by excluding the figures with
regard to some 21 contractors, for the reason that the
involvement of such contractors in commercial work is so
minimal that their practices with regard to fabrication or
purchase of round pipe should not be considered in
making an evaluation of customary and traditional
industry practice. Respondent points to 12 other contrac-
tors whose involvement on commercial projects it views as
more substantial, and whose practices it deems to be more
representative of industry custom and tradition. From the
practices of these 12, it would have us conclude that there
is sufficient evidence to support a conclusion that the
restrictive contract provisions are aimed at preserving work
customarily and traditionally done by employees of the
contractors.
I see no validity in the claim that the 21 contractors be
excluded from consideration in making a determination as
to industry practice, and I am further of the opinion that
the evidence relating to the remaining 12 does not support
the conclusion which Respondent asserts.
Although some are larger than others, no one of the
contractors engaged in commercial work runs a particular-
ly large operation. It is reasonable to exclude from an
evaluation of industry practices those contractors who had
never engaged in commercial work, since this would
suggest that probably they would not embark on such work
in the future, and in any event their history could shed little
light on customary industry practice or tradition. It is
equally reasonable to assume that those contractors who
had in the past engaged in commercial work would
continue to seek commercial jobs and would hope to
expand. We have before us an industry contract with
restrictive provisions binding on all contractors in the
industry, not just the larger ones. The industry in question
is one made up of numerous individual contractors of
varying sizes. It is their history insofar as they have worked
on commercial projects in the past when considered
collectively and, not individually, which becomes the
proper measure of industry custom and tradition. Accord-
ingly, I reject Respondent's claim that the minimal use of
round pipe and fittings for the 21 named contractors
justifies their exclusion from consideration, and find that in
determining the customary and traditional practices which
prevailed in the industry, we must consider what has been
done by all contractors covered by the contract who are
shown to have engaged in commercial work in excess of
3,200 square feet.
However, even if we limit our consideration to the 12
contractors whose operations Respondent deems to be
representative, the evidence fails to support the conclusion
that the fabrication of round pipe and fittings is customary
and traditional unit work. Six of these 12 report purchase
practices which follow the majority pattern of obtaining
from 90 to 100 percent of their round pipe needs from the
manufacturers. As to the remaining six, while they show
deviations from such a pattern, neither individually nor
collectively do they establish an industry fabrication
pattern.
Berkan and Clark now purchase the round pipe needed
from manufacturers, and it has departed from this practice
in the past in substantial measure only when specialty work
demanded it. Bruce Nickel followed the more general
pattern and its recent departure therefrom was occasioned
SHEET METAL WORKERS UNION LOCAL 162
apparently because of union pressure . When Wilbur first
went into business , he purchased all of his round pipe
needs from manufacturers . Wilbur's recent turn to fabrica-
tion comes about solely because of the happenstance of a
package purchase , not made purposely for the purpose of
meeting round pipe needs , but which brought to this
contractor certain machinery which made it economical to
fabricate for his own use. Systemaire is the only unit
contractor purchasing some round pipe from Wilbur and
this started less than a year ago. Systemaire is apparently
motivated by a desire to avoid difficulties with Respon-
dent , and concedes that such purchases are more costly
than they would be if purchased from the manufacturers.
Atlas Mechanical fabricates about 50 percent of its needs
because as one of the larger contractors , it possesses
machinery not purchased or designed to fabricate round
pipe , but which assists in the process , and enables the
contractor to do the fabrication more economically than
others. Frank Booth, also one of the larger contractors, still
purchases 80 percent of his round pipe needs but does
fabricate the larger sizes.
Thus even among these 12 contractors there is not shown
a consistent or standardized pattern which signals a real
departure from the more general contractor practice of
purchasing round pipe from the manufacturers. The
departures all came about because of special circumstances
peculiar to each individual contractor . Each has, in the
past followed , or to some extent , still follows the more
usual industry purchase practices . Neither in number nor
character do the deviations shown suffice to establish a
customary fabrication practice in the industry as a whole,
and I so find.
Nor is the testimony of Respondent 's witness, Donald
M. Lahr, convincing as establishing any different industry
practice . Lahr testified only in general terms as to a few
contractors of whose practices he had personal knowledge
either from work experience or as a business representative
of Respondent . Such general uncorroborated testimony is
scarcely convincing in the face of the far more specific
documentary and testimonial evidence provided by a
substantial number of the contractors themselves . Moreo-
ver, not only are there inconsistencies in Lahr.' testimony
as a whole, but in one instance he is specifically
contradicted as to past fabrication practices by the
testimony of a contractor for whom he had worked. Under
the circumstances I find the testimony of Lahr insufficient
to support a claim that there had been any long standing or
general industry custom or tradition with regard to
fabrication of round pipe items for certain jobs.
Considering the industry as a whole, and the reported
practices of the contractors regarding their use of round
pipe and fittings on commercial projects as set forth above,
the conclusion is inescapable that the fabrication of these
items by unit employees has not been customary or
traditional at any time. Thus, while it has been shown that
contractors can, and in some instances do, fabricate round
pipe and fittings, this comes about only in exceptional
situations and to meet special needs . If we are to establish
a practice of custom and tradition in an industry , it must
be shown that at least a majority of the commercial round
pipe needs have been met by having the contractors
749
regularly assign the fabrication to their own employees, or
regularly purchase the disputed items from employers
paying the construction local scale . The record here
establishes the exact reverse. The regular pattern , with but
few deviations , has been to have the round pipe needs on
the commercial jobs met by purchase from mass pro-
duction manufacturers whenever such items were available
and I so find . Accordingly , I am satisfied and find that
there is insufficient evidence to establish that the unit
employees have ever engaged in the fabrication of round
pipe items for use on jobs in excess of 3,200 square feet,
with sufficient regularity or in the sufficiently recent past
to support the assertion that such work is fairly claimable
as unit work or entitled to be recaptured as unit work.
In addition to its contentions regarding past industry
practices, Respondent asserts the fabrication of round pipe
items to be claimable as unit work for practical reasons.
Respondent notes that in Sheet Metal Workers Local 216,
supra, where the Board found that the fabrication of round
pipe items was not customary and traditional work , it is set
forth that there was no available source other than the
manufacturers which could supply round pipe , and that its
fabrication by individual contractors was shown to be
prohibitively costly. Respondent claims that these factors
led the Board to conclude that the restrictions were
calculated to satisfy other than unit preservation objectives
and thus that they had a secondary thrust . Respondent
asserts the instant case to be "clearly distinguishable"
because here it is shown that Wilbur Sheet Metal already
owns costly round pipe fabricating equipment with which
it could supply not only its own round pipe needs but
presumably those of other unit contractors . Although at
the present time the cost of purchase from Wilbur would
be at least 15 percent greater than purchase from the
manufacturers , Respondent argues that this cost would
undoubtedly drop as Wilbur's production was increased.
Respondent appears to be saying that in contrast to the
situation in the Local 216 case , the availability of these
facilities in the instant case renders it reasonable and
practical to claim round pipe fabrication as fairly claima-
ble unit work.
It is not necessary to treat with the adequacy of Wilbur's
or any other facilities available to meet the contractors'
round pipe needs to find Respondent 's contention to be
without merit . Respondent's argument does not address
itself to the criteria established by National Woodwork, or
set forth in the sheetmetal industry cases cited above. The
issue before us is not whether contractors are capable of
fabricating round pipe or fittings, or whether facilities exist
whereby this can be done on a reasonably efficient basis
with adequate machinery and at a relatively small increase
in cost . The legality of the contract restrictions turns not on
the capacities of the unit employers or employees to do the
work , but on whether or not in fact work of this nature has
customarily and traditionally been done by such unit
employees . These cases establish that only where it is
shown that the unit employees have done such fabrication
with sufficient regularity to support a conclusion that such
fabrication is industry custom and tradition, can it be
found that a union is entitled to claim or recapture such
work by use of contract restrictions . Here I have found that
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with only a few exceptions, and these of a limited nature,
the overwhelming majority of contractors have for a long
period of time been purchasing their round pipe items from
manufacturers, and not assigning the work of fabricating
such items to unit employees. This is what controls, and
not whether it would be possible or practical for sheet
metal contractors to fabricate round pipe themselves, or
purchase round pipe items from other employers paying
the construction local wage scale.
The rationale of National Woodwork and the cited sheet
metal cases makes it clear that where it has been found that
fabrication of the disputed items has not been the
customary and traditional practice of unit employees,
restrictive clauses similar to those found in the instant case
are deemed to have an unlawful secondary object. To
comply with the restrictive clauses in the instant case, the
contractors must either (1) fabricate the needed round pipe
items in their own shops using their own employees; or (2)
purchase round pipe items only from other employees
paying their employees the construction local scale; or (3)
cease purchasing round pipe items from the mass prod-
uction manufacturers unless and until such manufacturers
pay their employees at the higher construction local scale.
Having found fabrication of round pipe items not to have
been customary and traditional work of unit employees, no
one of these ends can be viewed as preserving unit work,
but each must be regarded as an effort to acquire work for
unit employees, or as an effort to disturb an existing
business relationship unless and until certain wage stand-
ards are met. Either must be viewed as an unlawful
secondary object "tactically calculated to satisfy union
objectives elsewhere," and not "addressed to the labor
relations of the contracting employer vis-a-vis his own
employees." Accordingly, I find that Respondent by
entering into and maintaining contract provisions that
require contractors either to fabricate in their own shops
metallic round pipe items for use on commercial projects in
excess of 3,200 square feet or to purchase such items from
shops paying their employees at the construction local
scale, is unlawfully restricting the contractor's continuing
right to purchase such items from manufacturers paying
the lower production scale, and that Respondent is thereby
engaging in conduct violative of Section 8(e) of the Act.
As noted above, in addition to the allegations relating to
contractual restrictions on the use of metallic round pipe
items on construction jobs, the General Counsel also
alleges that the contract contains restrictions on the use of
nonmetallic round pipe and flexible ducts. We find specific
contract language limiting the use of flexible ducts, and the
general round pipe contract restrictions would appear to
apply to the use of nonmetallic round pipe as well as to
metallic round pipe. As noted above, the parties stipulated
that nonmetallic flexible duct had been used on both
residential and commercial projects without enforced
regulations as to its length. It is conceded that the
contractors do not and cannot fabricate fiberglass round
pipe items. The contract language, however, may be
construed as limiting the purchase of such round pipe
items , and the Charging Party and the General Counsel
urge that under the circumstances the restrictions have a
secondary object. Since the fabrication of fiberglass round
pipe items could not possibly be found to be customary or
traditional unit work, it follows that for the same reasons
outlined with regard to metallic round pipe items any
restrictions on their purchase would have a similar
unlawful secondary object. Accordingly, I find that all
restrictions in the SMACCNA contract with Respondent
limiting the use by contractors of fiberglass items on their
commercial construction jobs in excess of 3,200 square feet
have an unlawful secondary object and are violative of
Section 8(e) of the Act.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , as set forth above , I shall recom-
mend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Upon the basis of the entire record I make the following:
CONCLUSIONS OF LAW
1. Respondent is, and has been at all times material to
the issues in these proceedings, a labor organization within
the meaning of Section 2(5) of the Act.
2. SMACCNA and its employer members, as well as
the employers who are parties signatory to the contract
between Respondent and SMACCNA, are each employers
within the meaning of Section 2(2) of the Act, and are
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
3. By maintaining and giving effect to the provisions in
the "Standard Form of Union Agreement" entered into on
June 29, 1972, which restrict use by the contractors of
metallic round pipe and fittings and nonmetallic round
pipe and flexible duct on commercial projects in excess of
3,200 square feet, Respondent has entered into an
agreement in violation of Section 8(e) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the basis of the entire record, the findings of fact,
and the conclusions of law, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDERS
Respondent , its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Maintaining or giving effect to the provisions of the
"Standard Form of Union Agreement" executed by
Respondent and SMACCNA on or about June 29, 1972,
and by individual contractor signatories later, or to any
further or similar agreement thereafter entered into , insofar
as such provisions restrict the use of metallic round pipe
6 In the event no exceptions are filed as provided by Section 102.46 of Section 102.48 of the Rules and Regulations , be adopted by the Board and
the Rules and Regulations of the National Labor Relations Board, the become its findings, conclusions , and order, and all objections thereto shall
findings, conclusions , and recommended Order herein shall, as provided in be deemed waived for all purposes.
SHEET METAL WORKERS UNION LOCAL 162
and fittings and nonmetallic round pipe and flexible duct
on construction jobs of the contractors by requiring that
such contractors either (1) fabricate such items themselves
in their own shops; or (2) purchase them from other
employers who pay the same construction local pay scale
found in the SMACCNA contract; or (3) not purchase
round pipe items from members of Associated Pipe or
NIMA.
(b) Executing, maintaining or giving effect to any other
contractor agreement, express or implied, whereby
SMACCNA or its employer members or the individual
parties signatory to such contract cease or refrain or agree
to cease or refrain from handling, using, selling, or
transporting or otherwise dealing in any of the products of
the employer members of Associated Pipe and NIMA.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Post in conspicuous places at Respondent's business
offices, meeting halls and all other places where notices to
members are customarily posted copies of the notice
attached hereto and marked "Appendix." 7 Copies of said
notice, on forms provided by the Regional Director for
Region 20, shall, after having been duly signed by the
Respondent's authorized representatives, be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days. Reasonable steps
shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(b) Sign and mail sufficient copies of said notice to the
aforesaid Regional Director for forwarding to SMACCNA
and its employer members and to parties signatory to the
agreement for posting by them, if they are willing, in all
locations where notices to employees are customarily
posted.
(c) Notify the Regional Director for Region 20 in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
7 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT execute, maintain or give effect to any
751
contract or agreement express or implied with Sheet
Metal and Air Conditioning Contractors National
Association, Sacramento Valley Chapter, Inc., or its
employer members, or the individual parties signatory
to such contract, whereby such employers cease or
refrain, or agree to cease or refrain , from doing
business with members of Associated Pipe and Fitting
Manufacturers or members of National Insulation
Manufacturers Association, or any other employer or
person, in violation of Section 8(e) of the Act.
WE WILL NOT maintain or give effect to those
provisions of the "Standard Form of the Union
Agreement" executed with Sheet Metal and Air
Conditioning Contractors National Association on or
about June 29, 1972, and with individual contractor
signatories later, insofar as such provisions restrict the
use of metallic round pipe and fittings or forbid, or
restrict the use of nonmetallic round pipe or flexible
duct by contractors by requiring such contractors
either (1) to fabricate such items themselves; or (2) to
purchase them from other employers who pay the
construction local wage scale; or (3) not to purchase
such items from members of Associated Pipe and
Fittings Manufacturers or members of National Insula-
tion Manufacturers Association.
Dated By
SHEET METAL WORKERS
UNION, LOCAL 162, SHEET
METAL WORKERS'
INTERNATIONAL
ASSOCIATION, AFL-CIO
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 13018 Federal Building, 450
Golden Gate Avenue, Box 36047, San Francisco, Califor-
nia 94102, Telephone 415-556-0335.