Southern California Pipe Trades

National Labor Relations Board - Board Decisions

Dec 5, 1973

207 N.L.R.B. 711 (N.L.R.B. 1973)

SOUTHERN CALIFORNIA PIPE TRADES
Southern California Pipe Trades District Council No.
16; Plumbers & Steamfitters Local No. 582 and
Kimstock Division , Tridair Industries, Inc.
Southern California Pipe Trades District Council No.
16; Plumbers and Pipefitters Local No. 230 and
Kimstock Division, Tridair Industries, Inc.
Southern California Pipe Trades District Council No.
16; Plumbers & Steamfitters Local No. 582;
Plumbing-Heating and Piping Employers Council
of Southern California , Inc. and Kimstock Divi-
sion, Tridair Industries, Inc.
Southern California Pipe Trades District Council No.
16; Plumbers and Pipefitters Local No. 230;
Plumbing-Heating and Piping Employers Council
of Southern California , Inc. and Kimstock Divi-
sion, Tridair Industries, Inc. Cases 21-CC-1358,
-2, -3, -4, and -5, 21-CC-1360,21-CE-106, and
21-CE-108
December 5, 1973
DECISION AND ORDER
On January 24, 1973, Administrative Law Judge
Irving Rogosin issued the attached Decision in this
proceeding. Thereafter, Respondent Unions jointly
filed exceptions and a supporting brief, and the
General Counsel filed limited exceptions and a
supporting brief. The General Counsel also filed an
answering brief. Respondent Employers Council
filed no exceptions.
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 only to the extent consistent with our Decision
herein.
The complaint alleges and the Administrative Law
Judge found that the Respondents violated Section
8(b)(4)(ii)(B) and Section 8(e) of the Act. However,
we find that the disposition of this case is governed
by our recent decision in Southern California Pipe
Trades District Council No. 16 of the United Associa-
tion, et al. (Associated General Contractors of Califor-
nia, Inc.), 207 NLRB No. 58, which requires a
contrary result, with but one exception.
The issues in this case concern the installation by
Kimstock, at certain jobsites in Southern California,
of fiberglass tubs and shower stalls it manufactured,
' The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall
Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have
711
and the application by Respondent Unions to
plumbing subcontractors of certain paragraphs of
their contract concerning such work.
Paragraph 13 and Addendum No. 3 of that
contract are involved here. Paragraph 13 provides
that the plumbing subcontractor agrees that all work
covered in the P.I.P.E.2 Specification Guide shall be
performed by the employer under the terms and
conditions of the contract and that in case any
fabrication or installation work has been, is being, or
will be performed by anyone other than employees
working for an employer under the provisions of the
contract, then the employer "agrees to pay the
equivalent of wages and fringe benefits lost by
employees covered by this agreement," as deter-
mined by a joint management-labor board set up by
the agreement, into the Union's pension fund.
Addendum No. 3, entitled "CARPENTER'S AND
U. A. NATIONAL AGREEMENT," states that
synthetic bathtubs and showers with finished walls
attached are to be unloaded, uncrated, and handled
to the point of installation by a composite crew of
plumbers and carpenters; that plumbers are to set
the synthetic tub and shower units over the plumbing
rough-in; that carpenters are to anchor the fixture to
the studs or walls, and that plumbers will drill the
holes in the fixture and install the water and waste
connections.
Combination synthetic tubs and showers began to
displace conventional bathtubs in Southern Califor-
nia in late 1959. Until then bathtubs were made of
steel or cast iron and were installed on the site by
plumbers. The plumbers removed the tub from the
delivery truck on site, carried and set it in place in
the bathroom, and then installed the waste and
overflow drains over holes previously drilled at the
factory. The metal tub was not attached to the wall,
and the plumbers did not set plaster or tile around
the tub. When a shower was included, the plumbers
connected the shower head to the tub valves, also
installed by plumbers.
In late 1959 Kimstock began manufacturing,
selling, delivering, and installing complete fiberglass
tub and shower units, either separately or in
combination (walls attached), throughout Southern
California.
The drain and the overflow holes, and if requested
by the customer, the diverter, and hot and cold water
valve holes are drilled at the factory. The shower
head and fill spout openings are usually drilled at the
jobsite by Kimstock's installers. Since Kimstock
carefully examined the record and find no basis for reversing his findings.
Z The P.I.P.E. Specification Guide is a publication which among other
things specifies in great detail what is to be appropriately considered
plumbing work . Installation of tubs and showers, although covered in the
specifications as work to be performed by plumbers, did not specifically
cover synthetic or fiberglass units.
207 NLRB No. 59
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
began manufacturing these units, it has delivered and
installed 90 percent of the units it has sold using its
own employees. The remaining 10 percent were sold
to customers such as mobile home manufacturers
who do their own installation. The actual plumbing
connections on the fiberglass units are still made by
the plumbers, who are not employees of Kimstock
but of plumbing contractors, and the performance of
this work is not in issue here.
The present dispute involves the distribution and
installation of the fiberglass units, and the drilling of
the holes on the site prior to the plumbing connec-
tions . Under Kimstock's practice, the unit is deliv-
ered to the jobsite by a truckdriver and swamper,
both employed by it. These employees then unload
the units on the site and carry them into each
building on the project in close proximity to the
bathroom. Kimstock's installers next place the unit
in the bathroom and, because the unit is so large,
they often must remove the studs, trimmers , and king
studs. The installer pours casting plaster on the floor,
and embeds the unit in the plaster. If the shower
head and diverter valve holes have not been drilled at
the factory, the installer will drill the required holes
before setting the unit in the plaster. Then the
installer levels and nails the unit into place, and
bonds it to particle boards which are nailed to the
studs. (The bonding process is not required in the
installation of simple bathtubs.) The combination
tub and shower units, with walls, constitute the
largest part of Kimstock's sales.
Metal tubs are installed much differently. The
plumbers need only carry the metal tubs into the
bathroom and deposit the tub. All required holes in
the metal tub have been drilled in the factory. Metal
tubs do not come with walls, and the plumbers do
not bond or otherwise secure the tubs to the studs.
Before the advent of fiberglass units, a combination
of metal tub and shower unit required construction
of a tile wall around the metal tub by a tilesetter or
plasterer, but not by a plumber.
Kimstock's drivers and installers have been repre-
sented by a labor organization not here involved,
Orange County District Council of Carpenters, Local
Union 2665, pursuant to a Board certification in
Case 21-RC-8294, and the applicable collective-
bargaining agreement which was effective September
11, 1970, through July 31, 1973. Employees of other
manufacturers of fiberglass units similar to those of
Kimstock also have been generally represented by
various local unions affiliated with United Brother-
hood of Carpenters.
The Administrative Law Judge found that the
introduction of fiberglass tubs and showers into the
housing market over the past 10 years has drastically
reduced the work opportunities for plumbers. Before
the advent of the synthetic units the plumbers
performed the actual unloading and carrying of the
old-style tubs into the housing units from the point of
delivery by the driver.
The Administrative Law Judge found that Respon-
dent Unions had violated the secondary boycott
provisions of the Act in three specific situations.
First, about June 17, 1971, Interland Development
Company, a general contractor, contracted with
Bolle Mechanical Contractors, a plumbing contrac-
tor and a member of Respondent Employers Coun-
cil, that Bolle would perform the plumbing work at a
jobsite at Mesa Verde East, Costa Mesa, California.
Not included in this contract was the delivery and
installation of fiberglass tubs and shower stalls, work
which Interland awarded to Kimstock on August 2,
1971. Thereafter a dispute arose between Respon-
dent Local 582, and Bolle, Interland , and Kimstock,
as to whether Kimstock's installers or Local 582
plumbers were entitled to install the fiberglass units.
At a joint meeting on October 6 the business
manager of Local 582 told Bolle that he would refuse
to supply plumbers to Bolle unless Local 582's
demand for a composite crew was honored in
delivery and installation of the Kimstock units. In
addition, on October 20, at another joint meeting
held to resolve the dispute, Local 582's business
agent stated that, if Kimstock insisted on installing
the fiberglass units, Kimstock's employees might as
well be prepared to hook up the waste and overflows.
We agree with the Administrative Law Judge that
Local 582's statements were threats to withhold the
services of its members from Bolle in order to exert
pressure on neutral Bolle with the purpose of causing
Interland to cease doing business with Kimstock.
These threats were clearly in violation of Section
8(b)(4)(ii)(B) of the Act. Unlike Associated General
Contractors of California, Inc., supra, where there was
no evidence that the union took any "extra-contrac-
tual" action such as threats to strike or picket to
enforce its contract, here Local 582 did threaten
Bolle with the extra-contractual action of a general
strike. Clearly Bolle had no control over the
contractual relationship between Interland and
Kimstock, and therefore regardless of the legitimacy
of Respondent Local 582's work preservation claim
its coercive threat was not directed at the right
person and was therefore unlawful. George Koch &
Sons, Inc., 201 NLRB 59.
The other two instances in which the Administra-
tive Law Judge found that Respondent Unions had
violated the Act were ones in which the Joint
Arbitration Board, as provided in paragraph 13,
assessed damages against two member plumbing
subcontractors in 1971 in the amount of the wages
and benefits lost by reason of their breach of
SOUTHERN CALIFORNIA PIPE TRADES
contract. In one case the assessment was $174.60,
and in the other $960.30. The Joint Arbitration
Board -found that in each case _the plumbing
subcontractor had violated paragraph 13 by permit-
ting nonunit employees to install either fiberglass
shower stalls or fiberglass tub-shower units.
In each case the Respondents proceeded against
the contractors under paragraph 13 of their plumbing
industry bargaining agreement and the installation
clause ; i.e., Addendum No. 3 of that agreement.
There is no evidence at all that Respondent Unions
sought to prevent the installation of the fiberglass
units by Kimstock's employees. The conclusion that
the plumbing contractors had breached their agree-
ment with Respondent Unions was reached in the
manner contemplated by the agreement by a
decision of the Joint Board. And the Joint Board's
assessment against the plumbing contractors for
wages and benefits lost-was as set forth in para-
graph 13 of the agreement. There was no disruption
of the contractors' operations. Consequently, in these
instances Respondents have merely sought by peace-
ful means to enforce their bargaining agreement
against employers party to that agreement.
However, the Administrative Law Judge found
that by these contractual assessments Respondent
Unions violated Section 8(b)(4)(ii)(B) and that the
contract provisions as applied violated Section 8(e).3
In so doing he concluded that the fiberglass tub-
showers were a new product for which Respondents
had no legitimate work preservation claim, and that
the assessments constituted economic coercion
aimed at forcing a cessation of business with the
manufacturer and was proscribed by Section
8(b)(4)(ii)(B) of the Act.
We do not agree. This same provision and similar
monetary assessments made for breach thereof, came
before us in Associated General Contractors of
California, Inc., supra. We there found that in
resorting to use of paragraph 13 with respect to
certain covered fabrication work the unions did not
violate Section 8(b)(4)(ii)(B) and that the contract as
so applied did not violate Section 8(e) of the Act. We
reach the same conclusion here for substantially the
same reasons.
With the exception of Local 582's strike threat
against Bolle which we have found violative of the
Act, here the Respondent Unions sought to resolve
disputes with the plumbing subcontractors only by
invoking the peaceful and jointly agreed-upon means
3 The Administrative Law Judge included in this finding par. 12 of the
contract . However, that paragraph on its face deals with events that occur at
the time a plumbing contractor starts a job. In each instance here, that
occurred well before the disputes arose. Consequently, as the contract
containing par. 12 was entered into in 1969 and as there is no evidence of
any attempt to enforce it within the 100) period-or for that matter at any
other time-we find that its consideration in this proceeding is barred by
713
established by their collective-bargaining agreement.
We reiterate that a contractual agreement such as
this for reasonable compensation for a breach of
contract determined by contractually fair procedures
is a proper and lawful method of resolving a dispute.4
We therefore conclude that Respondent Unions'
application of the contract here did not constitute
statutorily proscribed threats, coercion, or restraint.
Inasmuch as we find that the contractual assess-
ments were not designed to achieve any secondary
ends proscribed by the Act, we do, not reach the
other arguments of the parties relating to secondary-
primary employer, work-preservation, or the con-
struction industry proviso.
AMENDED CONCLUSIONS OF LAW
1. Plumbing-Heating and Piping Employers
Council of Southern California, Inc., and Kimstock
Division, Tridair Industries, Inc., are, and at all times
material herein have been, employers engaged in
commerce and in businesses affecting commerce
within the meaning of Section 2(2), (6), and (7) of the
Act. Bolle Mechanical Contractors, Bob Leaverton
Plumbing, Inc., and Orcon, Inc., are, and at all times
material herein have been, employer-members of
Respondent Employers Council.
2. Southern California Pipe Trades District
Council No. 16, Plumbers & Steamfitters Local No.
582, and Plumbers and Pipefitters Local No. 230, are,
and at all times material herein have been, labor
organizations within the meaning of Section 2(5) of
the Act.
3. By threatening, coercing, and restraining Bolle
Mechanical Contractors, a person engaged in com-
merce, where an object thereof was to cause that
person to cease using, selling, handling, transporting,
or otherwise dealing, in the products or services of
Kimstock, Respondent Local No. 582 has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(b)(4)(ii)(B) of the Act.
4. Respondents have not by any other conduct
herein committed unfair labor practices within the
meaning 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
Plumbers & Steamfitters Local No. 582, Los Angeles,
Sec. 10(b) of the Act.
4 United Association of Pipe Filters Local Union Na. 455 (D. W. Hickey
Co.), 154 NLRB 285, 291 , and 167 NLRB 602, 604 (Pierre Aircon incident).
As set forth in Associated General Contractors, supra, we find no merit in the
General Counsel's argument that the "Aircon" holding was reversed or at
least severely hunted, by the Board's later holding in Continental Air Filters
Company, 196 NLRB 55.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
California, its officers, agents, and representatives,
shall:
1. Cease and desist from threatening, coercing, or
restraining Bolle Mechanical Contractors or any
other person engaged in commerce, where an object
thereof is to cause said,persons to cease using, selling,
handling, transporting, or otherwise dealing in the
products or services of Kimstock Division, Tridair
Industries, Inc., in violation of Section 8(b)(4)(ii)(B)
of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its business offices and meeting halls in
southern California copies of the attached notice
marked "Appendix." 5 Copies of said notice, on
forms provided by the Regional Director for Region
21, after being duly signed by a representative of
Respondent Local 582, shall be posted by Respon-
dent immediately upon receipt thereof, and be
maintained by Respondent for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by said Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Sign and mail to the Regional Director for
Region 21 sufficient copies of said notice for posting
by Bolle Mechanical Contractors where notices to its
employees are customarily posted, if Bolle is willing.
(c) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
MEMBER KENNEDY, concurring in part and dissenting
in part:
I concur in the finding of my colleagues that
Respondent Local 582 violated Section 8(b)(4)(ii)(B)
of the Act when it threatened, coerced, and re-
strained plumbing contractor Bolle with an object of
forcing Bolle to cease handling or installing the
fiberglass tub and shower units manufactured by
Kimstock.
However, contrary to my colleagues, I would also
adopt the findings of the Administrative Law Judge
that the Respondent Unions have violated Section
8(b)(4)(ii)(B) and, together with the Respondent
Employers Council, Section 8(e) of the Act by virtue
of their agreement and the monetary penalties levied
against the plumbing contractors involved herein. In
my view the fines constituted unlawful economic
coercion and restraint designed to force a cessation
5 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
of business with the manufacturer of the product
involved, as the Board only recently held in Conti-
nental Air Filters Company, 196 NLRB 55. In my
view, the fines were clearly designed as an unlawful
application of paragraph 13 of the contract and an
attempt to acquire new work not historically and
traditionally done by Respondent Unions. My
reasons for this view are fully explicated in my
dissent in Associated General Contractors of Califor-
nia, Inc., 207 NLRB No. 58, where just such a fine
was levied as we have before us here under the same
paragraph 13. No purpose will be served by repeti-
tion of those reasons here.
Particularly with regard to the 8(e) allegations, I
agree with the Administrative Law Judge that the
fiberglass tub and shower units historically had not
been handled by members of the Respondent
Unions. The Kimstock fiberglass units were techno-
logical innovations, manufactured by a completely
different process, and required unique methods of
handling and installation foreign to the old-style steel
tubs. The evidence is clear that Respondent Unions
had not performed to any significant degree the
unique work processes involved since the introduc-
tion of the fiberglass units in or about 1959. Indeed,
in the earlier CD proceedings involving these parties,
in which we awarded this disputed work to the
employees of Kimstock who were represented by the
Carpenters, we stated that, aside from the traditional
carpentry aspect of the work, the handling and
installing of these synthetic products was a specializ-
ed skill most competently discharged by the experi-
enced employees of Kimstock who have been
performing that work. Thus, the Unions' demonstrat-
ed purpose in coercing the unoffending plumbing
subcontractors here can only be to acquire the tasks
now performed by employees of the manufacturer.
Indeed, as E. E. Schell, business manager of
Respondent District Council since 1953 and secretar-
y to the negotiating committee, testified, Respondent
District Council's purpose in fining the plumbing
contractor was to compel him to surcharge the
general contractors with the amount of damages
assessed, thereby forcing the general contractor to
cease awarding the disputed work to Kimstock. For
these reasons I would find that Respondent Unions
have violated Section 8(b)(4)(ii)(B) of the Act not
only by the strike threat but also by assessment of
fines against neutral and unoffending employers. 7 I
would further find that, by thus applying paragraph
13 and Addendum No. 3 to work not traditionally
6 Southern California Pipe Trades District Council No 16,• Plumbers and
Steamfitters Local No. 582 (Kimstock Division, Tridair Industries, Inc.), 197
NLRB 1279.
7 George Koch & Sons, Inc., 201 NLRB 59.
SOUTHERN CALIFORNIA PIPE TRADES 715
done by them, the Unions have violated Section 8(e)
of the Act.8
At this point I should note that it appears the
majority has departed from the clear intent of
Congress in enacting Section 8(e) to close the
loophole in the secondary boycott provision, by
finding an 8(b)(4)(ii)(B) strike threat, but then
refusing to even consider whether the contract
provision which the strike threat was intended to
implement was, as alleged, a hot-cargo provision
violative of Section 8(e).
Moreover, as I explained in my dissent in the prior
case, I view the majority's deferral to the use of
contract provisions to resolve secondary boycott and
hot-cargo issues as a sharp departure from existing
Board law. See Bigge Drayage Company, 197 NLRB
281. Respondent Unions' complaints must be re-
solved by a civil suit, not by unlawful secondary
pressure. George Koch and Sons, Inc., supra.
However tightly the majority seeks to draw the
perimeters of their conclusions here and in the prior
case, they are breaching the protective wall of the
secondary boycott and hot-cargo provisions of the
Act.9 The majority does not even confine their
holding to the construction industry. Apparently,
they would extend their rationale and sanction all
hot-cargo contracts-not just those which Congress
specifically exempted in Section 8(e).
8 I find insufficient evidence in this record to demonstrate that any
attempt was ever made to specifically invoke par. 12 here, and therefore I
find it unnecessary to pass on it.
9 This is the third case involving this contract and its application to reach
us. The first was Southern California Pipe Trades District Council No. 16
(Seefore Corporation), 193 NLRB 796.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE, Plumbers & Steamfitters Local No. 582,
WILL NOT threaten, coerce, or restrain Bolle
Mechanical Contractors , or any other person
engaged in commerce, where an object thereof is
to cause said persons to cease using , selling,
handling, transporting, or otherwise dealing in the
products of Kimstock Division , Tridair Indus-
tries, Inc., in violation of Section 8(b)(4)(ii)(B) of
the Act , as amended.
PLUMBERS &
STEAMFITTERS LOCAL
No. 582
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, Room
600, 849 South Broadway, Los Angeles, California
90014, Telephone 213-688-5254.
DECISION
STATEMENT OF THE CASE
IRvING ROGOSIN, Administrative Law Judge: The
consolidated complaint , hereinafter referred to as the
complaint, issued March 30, 1972, alleges that Respondent
Unions and Respondent Employers Council have been
engaging in unfair labor practices within the meaning of
Section 8(e), and that Respondent Unions have also
engaged in unfair labor practices within the meaning of
Section 8(b)(4)(ii)(B) and Section 2(6) and (7) of the Act.t
Specifically, the complaint alleges that on or about
September 18, 1969 , Respondent District Council, on
behalf of its affiliated local unions , including Respondent
Locals 582 and 230, entered into a collective-bargaining
agreement with Respondent Employers Council, on behalf
of its employer-members, by the terms of which Respon-
dent Employers Council, on behalf of its employer-
members , agreed to cease or refrain from doing business
with any other persons, including Kimstock, and thereafter
invoked, reaffirmed, and gave effect to said agreement,
thereby engaging in unfair labor practices within the
meaning of Section 8 (e) of the Act. The complaint further
alleges that Respondent Unions threatened, coerced, and
restrained named plumbing contractors by specified
conduct with an object of forcing or requiring said
contractors and others engaged in commerce , or in an
industry affecting commerce , to cease using, selling,
r Designations herein are as follows : The General Counsel, unless
otherwise stated or required by the context , his representative at the
hearing; Southern California Pipe Trades District Council No. 16,
Respondent District Council or the District Council; Plumbers &
Steamfitters Local No . 582, Respondent Local 582 or Local 582; Plumbers
and Pipefitters Local No. 230, Respondent Local 230 or Local 230;
Plumbing-Heating and Piping Employers Council of Southern California,
Respondent Employers Council or Employers Council ; Kimstock Division,
Tridair Industries , Inc., the Charging Party or Kimstock; the National
Labor Relations Act, as amended (61 Stat. 136, 73 Stat . 519, 29 U.S.C. Sec.
151, et seq. ), the Act; the National Labor Relations Board , the Board. The
charge in Case 21-CC-1358 was filed and served on Respondent District
Council and Respondent Local 582 on November 26, 1971; the charges in
Cases 21-CC-1358-2, 3, 4, and 5 were filed and served on Respondent
District Council and Respondent Local 582 on December 2, 1971; the
charge in Case 21-CC- 1360 was filed and served on Respondent District
Council and Respondent Local 230 on December 2, 1971; the charge in
Case 21-CE-106 was filed and served on Respondent District Council,
Respondent Local 582 and Respondent Employers Council on November
26, 1971; and the charge in Case 21 -CE-108 was filed and served on
Respondent District Council , Respondent Local 230, and Respondent
Employers Council on December 2, 1971.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
handling, transporting, or otherwise dealing in the prod-
ucts or services of Kimstock, or to cease doing business
with Kimstock, thereby engaging in unfair labor practices
within the meaning of Section 8(b)(4)(ii)(B) of the Act.
Respondent Unions' joint answer admits the procedural
and jurisdictional allegations of the complaint, denies other
allegations for lack of information and belief, and denies
the remaining substantive allegations.
Respondent Employers Council's answer (Cases
21-CE-106 and 21-CE-108) admits the procedural and
jurisdictional allegations; its status as collective-bargaining
representative of its employer-members; the execution of
and adherence to the collective-bargaining agreement in
question; and specifically admits that, by giving effect to
the provisions of the agreement quoted in the complaint, it
has agreed to cease or refrain from doing business with
Kimstock and others, but alleges that it entered into the
provisions with Respondent Unions "only after an eighty
(80) day strike, pursuant to economic coercion and duress"
exerted by Respondent Unions.
Hearing was held before me on May 23, 24, 25, and 26;
June 26, 27, 28, 29, and 30; July 5, 6, 7, and August 22, 23,
24, 25, 29, and 30, 1972, at Los Angeles, California. All
parties appeared and were represented by counsel, were
afforded full opportunity to be heard,2 to examine and
cross-examine witnesses , to introduce oral and documenta-
ry evidence relevant and material to the issues, to argue
orally, and to file briefs and proposed findings of fact and
conclusions of law. Pursuant to an extension of time duly
granted, the General Counsel and Respondent Union filed
briefs on November 6, 1972. No proposed findings of fact
and conclusions of law have been filed.
Upon the entire record in the case, and based on the
appearance and demeanor of the witnesses, and the briefs
of the parties, which have been carefully considered, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS
Plumbing-Heating and Piping Employers Council of
Southern California, Inc., Respondent Employers Council,
a California corporation with its principal office and place
of business at Los Angeles, is an association of employers
engaged in business in the State of California as plumbing,
heating, and piping contractors. Respondent Employers
Council was organized for the purpose, among others, of
engaging in, and has engaged in, negotiating and entering
into labor contracts on behalf of its employer-members
with the collective-bargaining representatives of their
employees, and in representing its employer-members in
matters of disputes and grievances, and in other phases of
labor management relations. In the conduct of their
business operations, the employer-members of Respondent
Employers Council, which bargain collectively on a
multiemployer basis through Respondent Employers
Council, purchase and receive goods and materials valued
in the aggregate in excess of $50,000 annually from points
directly outside the State of California.
2 After an opening statement by its counsel reiterating its position as
stated in its answer, Respondent Employers Council withdrew from further
Kimstock Division, Tridair Industries, Inc., herein called
Kimstock, the Charging Party, a wholly owned subsidiary
of Tridair Industries, Inc., with its main office and place of
business at Santa Ana, California, is engaged in the
manufacture and installation of synthetic bathtubs, show-
ers, and other synthetic products. In the conduct of its
business, Kimstock purchases goods and materials valued
in excess of $50,000 annually directly from points outside
the State of California and sells goods and products valued
in excess of $50,000 annually directly to customers located
outside the State of California.
It is, therefore, found, on the basis of the foregoing, and
upon the entire record, that Respondent Employers
Council and Kimstock, are each employers engaged in
commerce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Southern California Pipe Trades District Council,
Respondent District Council herein, comprised of 17
affiliated local unions ; Plumbers & Steamfitters Local No.
582, Respondent Local 582 herein; and Plumbers and
Pipefitters Local 230, Respondent Local 230, whose
geographical jurisdictions are all located in southern
California in the area between San Luis Obispo County
and the Mexican border , are, and at all times material
herein, have been, labor organizations within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
1. Whether section III, subsections 12 and 13 of the
collective-bargaining agreement are unlawful per se and
violative of Section 8(e) of the Act.
2. Whether, by invoking, reaffirming, and giving effect
to said provisions, Respondent Unions and Respondent
Employers Council have violated Section 8(e) of the Act.
3. Whether said provisions constitute lawful work
preservation clauses designed to preserve or protect work
traditionally and customarily performed by plumbers.
4. Whether said provisions, as interpreted and enforced
by Respondents, are designed to preserve or reacquire
work traditionally and customarily performed by plumb-
ers, or which, if not traditionally and historically per-
formed by plumbers, is, at least, fairly claimable by
Respondent Unions.
5. Whether, by imposing fines on neutral or secondary
employers, and threatening to withhold the services of
employees from such secondary employers, for failure to
comply with said provisions, Respondent Unions have
engaged in unfair labor practices within the meaning of
Section 8(b) (4Xii)(B) of the Act.
6. Whether the Board's "right-to-control" doctrine is
still a viable principle in a determination of the foregoing
issues.
7. Whether the construction industry proviso to Section
participation in the hearing.
SOUTHERN CALIFORNIA PIPE TRADES
8(e) exempts said provisions and conduct thereunder from
the operation of Section 8(b)(4)(ii)(B) of the Act.
B. The Collective-Bargaining Agreement; the
Pertinent Provisions
The collective-bargaining agreement between Plumbing-
Heating and Piping Employers Council of Southern
California, Inc., on behalf of all present and future
members, referred to as the Contractors, and the Southern
California Pipe Trades District Council No. 16 of the
United Association, in behalf of all employees represented
by the Unions, was executed on September 18, 1969,
effective from July 1, 1969, to June 30, 1972, with certain
Qualifications not here material.
By the terms of the agreement, the Contractors recognize
the Unions as exclusive bargaining representative of all
employees of the Contractors performing "plumbing,
heating and piping work of every description," and the
Unions recognize the Employers Council as exclusive
collective-bargaining representative of all its members
performing the type of work covered by the agreement.
The specific provisions involved in these proceedings read
as follows:
Section III
717
Paragraph 13 has been performed, is being performed,
or will be performed by anyone other than employees
working for Employers in accordance with the provi-
sions of this Agreement, the Employer agrees to pay the
equivalent of wages and fringe benefits lost by
employees covered by this Agreement, as determined
by the Joint Arbitration Board or its Subcommittee,
into the Retirement Trust Fund of the Plumbing-
Heating and Piping Industry of Southern California
within ten (10) days of date of posting of the decision of
the Joint Arbitration Board. If two or more Contrac-
tors are involved on such work, the Joint Arbitration
Board shall decide which Contractor or Contractors are
liable and the amount of liability. The Joint Arbitration
Board shall determine the specified bid guide to be
used in determining damages by March 1, 1970. If such
determination is not made by March 1, 1970, each
party shall submit a guide to an impartial arbitrator
who shall make the selection by April 1, 1970.
Subjoined to the collective-bargaining agreement is the
following:
Addendum No. 3
CARPENTER 'S AND U. A. NATIONAL
AGREEMENT
Work Covered
12. It is recognized by the parties hereto that it is
mutually desirable to have all of the above-listed work
performed by employees covered by this Agreement
and to that end they will utilize their best efforts to see
that this is done to the extent permissible by law. To
further this aim of protecting present work and
reclaiming work lost, the Contractor shall submit in
writing to the Union having jurisdiction, prior to
starting any job, the location of job where the contract
is in excess of $20,000.00. This notice shall include
information on any work or equipment covered by this
Agreement which is not included in the contract to the
best of the Contractor's knowledge and belief. In the
event any of the work or equipment covered by this
Agreement has not been awarded to signatory Contrac-
tor, a Contractor representative will accompany a
representative of the Union to take the matter up with
the awarding authorities.
The above mentioned representatives shall meet with
the awarding authorities as soon as possible after
receipt of the aforementioned notice from the Contrac-
tor. The Union may refuse to permit employees on the
job site until such meeting has been held but not to
exceed a period of seven (7) working days after receipt
of the aforementioned notice.
13. (Effective April 1, 1970) The Employer agrees
that all work covered under "Scope of Work" in the P.
1. P. E. Specification Guide (Revised Edition), except
;:hose items excluded and listed below, including but
:lot limited to all fabrication and installation work,
,ha be performed by the Employer under the terms
and conditions of this Agreement. In the event any
fabrication and/or installation work mentioned in this
Synthetic Bathtubs and Showers-March 21, 1969
1. Synthetic bathtubs and showers which are
manufactured with finished walls attached will be
unloaded, uncrated and handled from initial
unloading to the point of installation by a
composite crew.
2. The United Association will set the fixture to
and over the plumbing rough in.
3. The United Brotherhood will perform all
work necessary to anchor the fixture to the studs
or walls.
4. The United Association will drill the neces-
sary holes and will install all waste and water
connections necessary.
C. The Nature of the Controversy
The basic dispute between Respondent Unions and the
manufacturers of fiberglass bathtubs, shower stalls, and
combination tub and shower units in southern California,
including Kimstock, the Charging Party, is whether
employees of the plumbing contractors, represented by
Respondent Unions, or the employees of the manufactur-
ers, represented by other unions, principally the Carpenters
Unions, are entitled to perform certain work tasks in
connection with the delivery and installation of fiberglass
tub and shower units.
Respondent Unions maintain that plumbers, members of
their unions, have the right to "distribute," as that term is
used in the industry, these units either wholly, or at least,
on a "composite crew" basis, as provided in Addendum
No. 3 to the collective-bargaining agreement, set the units
in place over the roughed-in plumbing, and drill necessary
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
holes to accommodate valves and other plumbing appurte-
nances. Kimstock, as well as other manufacturers of
fiberglass units , contends that all the work entailed in the
delivery and installation of these units is to be performed
by their own employees, designated as installers, as has
been the practice since the advent of the fiberglass unit in
the construction industry.
Until about late 1959, bathtubs were manufactured from
enameled steel or cast iron and were installed by plumbers.
The method of installation was relatively simple. The
plumbers removed the tubs from the delivery truck, carried
them into the house, and set them in place in the
bathroom. The plumbers then installed the waste and
overflow drains over holes previously drilled at the factory.
The metal tub was not attached to the wall by the
plumbers, and the plumbers did not set plaster or tile
around the tub. Although shower units are not ordinarily
manufactured in combination with metal tubs , plumbers
have installed shower heads over tubs by connecting the
shower head to the tub valve, which has previously been
installed in the frame construction wall, built by the
carpenters , and later covered by plaster or dry wall, and
finished with a tile surface.3
In the latter part of 1959, Kimstock began manufactur-
ing, selling, delivering, and installing synthetic or fiberglass
tub and shower units, either separately or in combination,
throughout southern California. Since then, the major
manufacturers of this product have sold, delivered, and
installed about 319,000 fiberglass units in this area.
Between late 1959 and mid-1972, Kimstock itself delivered
and installed about 108,000 units in southern California.4
Fiberglass tub and shower units, sometimes referred to
as synthetic bathtubs and showers, are manufactured by a
process which involves the spraying of quantities of
fiberglass and resin over molds, resulting in the production
of a completed tub or shower unit or combination of both.
Kinstock manufactures a variety of models of the basic
units with walls attached. In the final stages of the
operation, drain and overflow holes are drilled in the units
and, where requested by the customer, holes are also
drilled at the factory for the diverter valves, and hot and
cold water valves. Finishing touches are made on the units,
which are then staged for delivery. Shower heads and fill
spouts are usually drilled at the jobsite by Kimstock's
installers.
Since Kimstock began manufacturing fiberglass tub and
shower units, about 90 percent of its product has been sold,
delivered, and installed under contracts of sale which
provide for the delivery and installation of the fiberglass
units by Kimstock's employees. The remaining 10 percent
has been sold to customers, such as mobile home
manufacturers, who do their own installation. The actual
plumbing connections on fiberglass units sold on an
installed basis, however, are made by the plumbers, who
are not employees of Kimstock but of plumbing contrac-
3 These findings are based on the uncontradicted testimony of Robert
Leaverton , president of Bob Leaverton Plumbing , Inc., a plumber
contractor since 1957 , primarily in Orange County. According to him, in
1957, the only type of bathrooms being installed were steel or metal tubs,
with tile showers. In contrast to other plumbing contractors, 90 percent of
his jobs call for cast iron tubs.
tors, and the performance of this work is not in issue in
these proceedings.
Distribution and installation of the fiberglass units are,
however, involved. Under Kimstock's practice, the units
have been delivered to the jobsite by a truckdriver and
helper or swamper, both employed by it. The truckdriver
transports the units to the jobsite of Kimstock's customer,
and proceeds through the area, stopping at each apartment
building or dwelling in the project where units are to be
installed. The driver and swamper then unload the units
and carry them into each of the residential units in close
proximity to the bathroom.
Actual installation of the unit is performed by Kim-
stock's installers, who move the units to the bathroom area.
Because, unlike the metal tub, which can usually be
upended and carried through the bathroom doorway, the
fiberglass unit, which consists of a self-contained unit,
complete with walls, is too large to be handled in this way,
it is necessary for the installer to remove the studs,
trimmers, or king studs to enable him to carry the unit into
the bathroom area. The installer next places the unit in the
upright position, while he deposits casting plaster at the
place where the unit is to be set and imbeds the unit in the
plaster. If holes for shower valves and heads have not been
drilled at the factory, the installer will drill the required
holes before setting the unit in the plaster, after determin-
ing the location for the holes from the plumbing tree.
When the unit has been set in the casting plaster, the
installer levels and nails the unit in place. Particle boards,
consisting of 3-inch wooden strips, are nailed to the studs,
and the particle boards are then bonded by means of a
thick resinous substance. The bonding process is not
required in the installation of bathtubs alone, which are
not provided with walls. Combination tub and shower
units, however, constitute the largest volume of Kimstock's
sales. Except for final inspection by Kimstock's field
service representative several weeks after the installation is
completed, and possible touch-up of the unit, this consti-
tutes the installation phase performed by Kimstock's
installers.
The method of installation of fiberglass units is in
marked contrast to that used in installing metal tubs, work
performed by plumbers in the southern California area,
who are members of Respondent Unions. With regard to
metal tubs, plumbers need only set the metal tubs in the
designated place in the bathroom, without the necessity of
using casting plaster. All required holes in the metal tub
are drilled at the factory. Unlike the fiberglass units, which
are made with walls of the same material, metal tubs do
not come with walls, and plumbers, employed by the
plumbing contractors, do not bond or otherwise secure the
tubs to the structure. Before the advent of fiberglass units,
a combination metal tub and shower unit required
construction of a tile wall around the metal tub, made by a
tile setter, not a member of the plumbers unions. Where
4 Installation by other manufacturers of this product were approximately
as follows: American Superior, Inc., which began production in 1964,
110,000 units; Pineco, beginning in 1968, 36,000 units; Selectile Company,
Inc., beginning in 1969, 65,000 units, all through mid-1972, which; with
Kimstock's 108,000 units aggregated 319,000 units.
SOUTHERN CALIFORNIA PIPE TRADES 719
required, the shower head was installed over the tub by the
plumber.
The drivers and installers employed by Kimstock, who
deliver and install fiberglass units, as described above, have
been represented by the Orange County District Council of
Carpenters, Local Union 2665, United Brotherhood of
Carpenters and Joiners of America, pursuant to a Board
certification in Case 21-RC-8294, under a succession of
collective-bargaining agreements, the latest effective from
September 11, 1970, through July 31, 1973. Employees of
other manufacturers of fiberglass units, mentioned earlier,
whose delivery and installation procedures are substantial-
ly similar to those of Kimstock, have also been, and are
currently represented by various local unions affiliated
with the United Brotherhood of Carpenters and Joiners of
America.
With regard to these manufacturers, since becoming
engaged in the business of manufacturing fiberglass units,
about 90 percent of the units sold by American Superior
and Selectile, and 45 percent of those sold by Pineco in
southern California have been on a delivered and installed
basis, and employees of these companies have delivered
and installed the fiberglass units. Other manufacturers of
this product, Plasticon Company and the American
Standard Company, with a ,substantially lesser share of the
fiberglass unit market in southern California, have deliv-
ered and installed these units with employees who were
members of the Carpenters Union. Respondent District
Council or its affiliated locals have at no time been
certified by the Board as collective-bargaining representa-
tive of Kimstock's employees or those of the other
fiberglass manufacturers, nor have these employees been
required by any Board order to bargain with Respondent
Unions as representative of their employees engaged in the
delivery and installation of fiberglass units.
D. The 8(e) Allegations
The General Counsel contends that section III, subsec-
tions 12 and 13, of the collective-bargaining agreement are
per se unlawful because, under the Board's "right-to-
control" principle, the objective of the provisions is
secondary, hence, violative of Section 8(e). Furthermore,
he maintains these provisions, as interpreted and enforced
by Respondents, are designed to "capture" work for
plumbers, bargaining unit employees, which they have not
previously performed and are, therefore, also violative of
Section 8(e). Since the challenged provisions apply to
signatory plumbing contractors, who have no right of
control over work which Respondent Unions claim, and
which is awarded by the general contractor or builder to
other subcontractors, it is argued, the signatory plumbing
contractors have no right of control, and are, therefore,
secondary employers, and the provisions are unlawful.
5 Unless otherwise stated or required by the context, Respondent Unions
will hereinafter be referred to collectively as Respondents.
a Citing N.LR.B. v. Local Union No. 164, international Brotherhood of
Electrical Workers, AFL-CIO, 388 F.2d 105 (C.A. 3, 1968); American Boiler
Manufacturing Association v. N.LR.B., 404 F.2d 556 (C.A. 8, 1968); Beacon
Castle Square Building Corporation v. N.LR.B., 406 F.2d 188 (C.A. 1, 1969);
Local No. 636 United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada AFL-CIO
Since the thrust of the disputed paragraphs is secondary,
the General Counsel maintains, Respondents5 are not
exempt from the consequences of those provisions, because
even if construed to relate to on-site work, the construction
industry proviso to Section 8(e) does not apply because the
provisions contain self-help remedies. In this connection,
paragraph 12 provides that Respondents may suspend
plumbing work on the job for 7 days if a meeting is not
arranged with the awarding authority. Paragraph 13,
moreover, provides for the assessment of damages against
signatory plumbing contractors who do not contract to
perform all work claimed by Respondents. The General
Counsel further contends that the work in dispute has not
been historically and traditionally performed by members
of Respondent Unions, and that, contrary to Respondents'
contentions, the purpose of the clauses is to acquire rather
than to preserve, recapture, or reacquire work traditionally
and customarily performed by plumbers.
Respondents argue that the Board's reliance on the right-
of-control test is misplaced, and that this test has been
repudiated by the courts as the sole means of determining
whether activity is primary or secondary.6 The correct test,
these Respondents contend, to determine if activity is
primary or secondary, is the one laid down by the Court in
the National Woodwork case.7
Respondent Unions further contend that paragraphs 12
and 13 are lawful primary work-preservation clauses
designed to preserve or reacquire work which has tradition-
ally been performed by plumbers, and, as such, coercive
activities directed against signatory plumbing contractors
are not unlawful. Alternatively, these Respondents argue,
if the clauses are not to be construed as primary work-
preservation provisions, their activities are protected by the
construction industry proviso to Section 8(e), and, further-
more, neither clause contains unlawful self-help provisions.
It is obvious, therefore, that the underlying issue to be
resolved is whether the clauses in question were designed
to preserve work traditionally and customarily performed
by employees in the bargaining unit or to accomplish other
union objectives.
Respondent Unions contend that the controversial
clauses were designed to cover only work which had
historically and traditionally been performed by plumbers,
and that insofar as the clauses are applicable to fiberglass
units, the work is fairly claimable since Respondents are
seeking to preserve or reacquire work which their members
have traditionally performed. As Respondents recognize,
before the question of whether plumbers have traditionally
performed this work is decided, it is necessary to determine
the nature of the work involved. Respondents pose the
rhetorical question of whether a union may be precluded
from claiming work which it has traditionally performed,
on a product which, though altered by technological
processes as to composition of materials used and
v. NLRB., 430 F.2d 906 (C.A.D.C., 1970); Western Monolithics Concrete
Products, Inc. v. N.LRB., 446 F.2d 522 (CA. 9, 1971). As Respondent
Unions point out, the Board heard oral argument in March, 1972, on the
issue of the "right of control" test , but as of this writing, it has not
announced its decision.
7 National Woodwork Manufacturers Association v. NLRB., 386 U.S.
612(1967).
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
configuration, performs the same function as a product
which has traditionally been installed by its members.
In this respect, Respondent Unions point out that
although bathtubs have undergone improvements since the
days when they were manufactured of wood covered with
copper, later, of cast iron covered with porcelain, and
subsequently of pressed steel or metal covered with
enamel, all these tubs were installed by plumbers. The fact
that the traditional types of steel and metal tubs have been
replaced by fiberglass tubs should not affect the right of
plumbers to perform that work. As has already been stated,
prior to the introduction of fiberglass tubs and showers,
plumbers performed all the work entailed in installing steel
tubs, including unloading, distributing, setting in place and
hookup, and the work of installing showers over these tubs
has always been performed by plumbers.
Thus, Respondents argue, the fiberglass units do not
constitute a new product but a technological improvement
of the former product. The function of the combination
fiberglass unit remains unchanged, and it is still necessary
to connect the unit to the plumbing, work which has
traditionally been performed by plumbers. The conven-
tional tile wall over the bathtub has now been replaced by
a molded unit with fiberglass walls attached as an integral
part of the unit, but this, according to Respondents,
amounts to no more than a "refinement of an older
product brought about by advanced technology and
automation." Here, Respondents rely on the language of
the Court in National Woodwork,8
We cannot lightly impute to Congress an intent in
Section 8(e) to preclude labor-management agreements
to ease these effects through collective bargaining on
this most vital problem created by advanced technolo-
gy.
That the introduction of fiberglass tubs and showers into
the housing market during the past 10 years, and more
particularly the last 5 years, has drastically reduced the
work opportunities for plumbers, can hardly be gainsaid.
The union representatives acknowledge that fiberglass
units presently comprise between 80 and 90 percent of all
bathtub and shower installations. But this does not in itself
establish that the objective of the disputed clauses was
solely the preservation or the reacquisition of work
traditionally and customarily performed by members of
Respondent Unions.
The General Counsel contends that the inclusion of these
provisions, and Respondents' interpretation and enforce-
ment of them, were designed to "capture" or acquire new
work for employees in the bargaining unit, which they had
not previously substantially performed, thereby enlarging
the bargaining unit, and attempting to control the labor
relations policies of employers other than those with whom
they enjoy a collective-bargaining relationship. In support
8 386 U.S. 612, 642.
9 While specifically stating that the evidentiary findings in the 10(k)
proceedings involving these parties would not constitute res judicata in any
subsequent unfair labor proceeding, it is not without significance that the
Board there found that "the skills and tools involved in the actual
installation , as opposed to the delivery [of the fiberglass units ], are those
traditionally of carpenters. The actual hookup of the plumbing connections
is done by plumbers who are not employed by Kimstock, and there is no
dispute over that part of the work. Aside from the traditional carpentry
aspect of the work, according to the Employer's evidence, the handling and
of this contention, the General Counsel relies upon the
following factors: (1) The work involved in the delivery
and installation of fiberglass units is not necessarily work
traditionally performed by plumbers; (2) this work has
been performed for many years by employees other than
members of Respondent Unions, with the full knowledge
and acquiescence of Respondents; and (3) these employees
have a valid work-preservation claim to the disputed work.
While the record fairly establishes that prior to the
introduction of fiberglass units into the industry, the work
of "distributing" (actually the unloading and carrying of
the tubs into the housing units from the point of delivery
by the driver) and depositing them in the bathroom area,
as well as the installation of the tubs, was actually
performed by plumbers, this procedure has not been
customarily and consistently followed with regard to the
fiberglass units. It is too simplistic to argue that a "bath tub
is a bath tub" regardless of the materials used or the
process of production. Nor is it an answer to say that the
fiberglass units are merely refinements or improvements of
a preexisting product. The very nature of the materials
used and the self-contained unit, complete with walls of the
same materials , requires a distinctive method of installa-
tion. As has been shown elsewhere, all that was required in
the installation of the metal tubs is to set the tub in place
and make the necessary connections . Installation of
fiberglass tubs entails, as has been shown, the removal of
studs in order to gain access to the bathroom, the deposit
of casting plaster at the place where the unit is to be
installed, the setting and imbedding of the unit, the leveling
and nailing of the unit in place, the nailing of particle
boards to the studs, the bonding of the unit to the wall, and
the drilling of holes in the fiberglass unit, all involving
skills more closely related to the work of carpenters rather
than plumbers. Such work was neither required nor
performed by plumbers in connection with the installation
of metal tubs. Since metal tubs have never been manufac-
tured in combination with showers, shower heads being
installed separately over metal tubs, there has been no
occasion to compare such installation with the installation
of a single combination fiberglass unit . Moreover, since the
fiberglass unit is manufactured with walls attached, these
walls must be bonded or secured, and it is undisputed that
plumbers have never performed the work of building walls
around the metal tub or shower unit, work traditionally
performed by members of other craft units .9
There is evidence that Respondents had attempted to
perform the work of installing fiberglass units in 1961, and
that by 1963, locals affiliated with District Council No. 16,
had performed some of this work. During this interval,
some locals affiliated with the District Council entered into
informal arrangements with locals of the Carpenters Union
under which the work was performed by composite crews.
installing of these synthetic products is a specialized skill which is most
competently discharged by experienced workmen such as those who have
been engaging in it.
"It appears that no more than one person can work on one of these units
at a time and that a composite crew , or any method necessitating more than
one installer (excepting the plumber who under existing practice does the
hookups at a different time), would involve inefficiencies caused by the
members of a crew waiting for each other to finish." Southern California
Pipe Trades District Council No. 16, et aL (Kimstock Division, Tridair
Industries, Inc.), 198 NLRB No. 182.
SOUTHERN CALIFORNIA PIPE TRADES 721
In 1963 , however, as a result of unfair labor practice
charges involving illegal jobsite activities , filed against
local unions affiliated with District Council No. 16, as well
as the District Council , and 10(1) injunctions , the cases
were settled (on terms not revealed by the record here), and
attorneys for these Unions advised them to abandon any
further jobsite activity in respect to fiberglass units. Efforts
to settle their dispute with plumbing contractors, signatory
to the existing collective -bargaining agreement , resulted in
a stalemate in proceedings before the Joint Arbitration
Board provided for in the contract.
In 1969 , Respondents negotiated the current collective-
bargaining agreement, containing paragraphs 12 and 13,
which they believed constituted lawful primary work-
preservation clauses. Since then , Respondents have made a
determined effort to assert jurisdiction over the installation
of fiberglass tubs.
As background for the negotiation of the disputed
paragraphs, District Council Business Manager Schell
testified that these clauses were negotiated without specific
reference to fiberglass tubs and showers, although the
Unions had been aware of and had made sporadic efforts
to cope with the problem between 1961 and 1963. The
Union complained that under the former contract, plumb-
ers had been losing work because signatory plumbing
contractors were declining to bid on certain plumbing
work, which they regarded as unprofitable. Grievances
filed against plumbing contractors proved futile because
employer-members of the Joint Arbitration Board, provid-
ed for under the contract, refused to entertain the
grievances, contending that since the disputed work was
not covered by the plumbing contract, the signatory
plumbing contractor had no right of control. The Union
did not proceed to arbitration, according to Schell, because
the party failing to prevail was required to pay the entire
cost of the arbitration. It sought, instead, to redress these
grievances in the 1969 negotiations.
By this time, due to the introduction of new or improved
products, and innovations in methods of construction, as
well as the disinclination of plumbing contractors to bid on
and perform all work to which plumbers claimed to be
entitled, membership in the locals affiliated with the
District Council decreased from 21,000 to about 16,000.
During the negotiations, the unions complained to the
employers of the loss of work opportunities due to the
failure of the plumbing contractors to contract for and
perform all plumbing work. Following a strike of 81 days
duration, paragraphs 12 and 13 were adopted and
incorporated into the collective-bargaining agreement.
In support of their position that paragraphs 12 and 13
constitute no more than work-preservation clauses, Res-
pondents refer to paragraph 11 of the previous collective-
bargaining agreement, which was a similar provision,
which did not define the work involved or provide for
methods of enforcement. The corresponding provision
(paragraphs 12 and 13) of the current agreement, was
drafted, according to Respondents, to exclude all work
which had not been historically or traditionally performed
by plumbers. Paragraph 11 of the current agreement
purports to set forth 52 areas of jurisdiction claimed by all
locals affiliated with the parent plumbers organization.
Paragraph 13 enumerates the work on which plumbers are
required to bid, without reference to the 52 points of
jurisdiction , and includes some of the work covered by the
P.I.P.E. Specification Guide.10
In the initial stages of the preparation of the specification
guide, the unions insisted that the so -called 52 points of
jurisdiction be included in the guide . When this demand
was refused by the employers, after a series of meetings it
was agreed that only such work as had historically and
traditionally been performed by plumbers, would be
included in the Specifications . According to Respondents,
the final version of the guide included only such work. All
work which could give rise to jurisdictional disputes with
other unions , including certain work claimed by the United
Association (parent authority of the plumbers unions), was
eliminated. Some work which had been performed by
plumbers was excluded from the coverage of paragraph 13,
and inserted in another section (section XV) of the labor
agreement to be enforced under the fabrication clause.
Installation of tubs and showers, although covered in the
specifications as work to be performed by plumbers, did
not specifically cover synthetic or fiberglass units:
Evidence was adduced by Respondents, over the
strenuous objection of the General Counsel, primarily on
the ground of hearsay, that, at least since 1969, substantial
quantities of fiberglass units were installed by members of
Respondent Unions at various building projects in south-
ern California. The evidence was based generally on
testimony of business agents and their assistants , regarding
their observations during random visits at jobsites where
their members were working, and, to a lesser extent on the
testimony of journeymen plumbers employed at those sites.
The General Counsel has painstakingly analyzed and
commented on the lack of reliability of the evidence in an
Appendix to his brief. Generally, the objections, as well as
the motion to strike the testimony, renewed in his brief, are
based upon the ground that the evidence was not based on
the witnesses' personal knowledge but on , information
obtained from assistants, union stewards, plumbing con-
tractors, and letters from such contractors, purportedly
stating that plumbers had "installed" fiberglass units. In
addition, estimates of 'the number of units allegedly
installed by members of Respondent Unions, separately or
on a composite crew basis, were based, not , on witnesses'
personal knowledge, but on information derived from
construction industry publications (commonly referred to
as Green Sheets and Dodge Sheets), announcing the
location, type of construction, number of proposed
dwelling units, and similar information of interest to
members of the industry. The problem was further
complicated by the inexact use of the term "installing" in
connection with fiberglass units, since, as used in letters
from plumbing contractors , the term could be construed to
refer to connecting drains of overflows, work customarily
performed by plumbers. While the General Counsel's
objections to this line of evidence were technically well
taken, any attempt to comply with strict rules of evidence
I'D The P.I.P.E. Specification Guide was prepared in 1962 by the as well as outside engineers , to delineate the work required to be included in
employers (plumbing contractors) in consultation with the plumbers unions, contracts between general contractors and plumbing contractors
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on this issue, even if the original evidence-were available,
would present overwhelming obstacles, and prolong the
hearing interminably, without justification. Practical con-
siderations, therefore, favor the admissibility of this
evidence. The weight to be given this evidence, however,
must be affected by the manner in which it was adduced.
To demonstrate the unreliability of this evidence, the
General Counsel, in rebuttal, introduced credible and
reliable evidence that employees of manufacturers installed
in the aggregate more than 12,000 units on jobs on which
Respondent Unions' witnesses claimed plumbers had
performed the installation of fiberglass units . Moreover,
evidence introduced by the General Counsel concerning
specific housing projects, as to which Respondents'
witnesses had testified fiberglass units were installed by
members of their locals or composite units, established that
either Kimstock or Selectile had contracts for the installa-
tion of 16,000 of these units. Since the work of installing
these units was not awarded to plumbing contractors under
the terms of these contracts, it is unlikely that employees of
the plumbing contractors performed the installation on
these jobs.
Calvin Emery, business manager of Local 78 (not
directly involved in these proceedings), testified that from
1971 to the date of the hearing, some 40,000 fiberglass units
were installed by members of his local or by a composite
crew. This estimate was admittedly based on information
reported to him by his assistants, as well as construction
industry publications regarding projected construction. On
this basis, Emery testified that 99 percent of all fiberglass
units in the jurisdiction of his local was performed by its
members or a composite crew. Aside from technical
objections to the admissibility of this testimony, it is of
negligible probative value in the face of direct evidence by
installers employed by the manufacturers, members of the
Carpenters Union, that, according to their own personal
records, the number of units installed by them amounted
to 25,000, a majority of them in the geographical
jurisdiction of Local 78.
According to Don D. Wade, business manager of Local
582, members of his local installed, either by themselves or
as a composite crew, a total of approximately 12,000 units
in Orange County between 1970 and the date of the
hearing. Again, these figures were estimates, based on
information received from union members, Green Sheets,
letters from plumbing contractors, and other secondary
sources. Moreover, while Wade testified that, during this
period, members of his local performed, either by them-
selves or as part of a composite crew, 95 percent of the
installation of fiberglass units in Orange County, actual
figures furnished by Kimstock and Selectile establish that
during the same period employees of those companies
installed 31,000 units in that geographical area.
It should also be noted in this connection, that, despite
the fact that the work of installation had been awarded by
general contractors to Kimstock or other manufacturers,
jurisdictional disputes arose between the Carpenters and
the Plumbers Unions at a number of these jobsites, and
that such installation of fiberglass units as was performed
by plumbers or a composite crew could well have been on
the basis of an ad hoc settlement of the particular dispute.
Without undertaking an exhaustive and comprehensive
analysis of the voluminous evidence, oral and documenta-
ry, relating to the vast number of construction projects
throughout southern California, involving a wide variety of
housing units, including single-dwelling tract houses,
apartment houses, condominiums, townhouses, institution-
al and educational projects, and motels, running the entire
gamut of residential housing, which used fiberglass tubs
and showers, the evidence most favorable to Respondent
reveals that, since about 1969, plumbers employed by
plumbing contractors, members of locals affiliated with the
District Council, have to some extent installed, either
separately or as part of a composite crew, fiberglass tubs
and showers of the type described. The General Counsel
contends, however, that the quantity of such units was de
minimis as compared with the number installed by
employees of Kimstock and other manufacturers. Without
conceding the admissibility or reliability of the evidence
thus adduced by Respondent Unions, the General Counsel
argues that even on the basis of this testimony, members of
locals affiliated with the District Council installed at most,
either by themselves or as part of a composite crew, a total
of 36,150 units, from which should be deducted 12,200
units, accounted for by the testimony of witnesses called
by the General Counsel as rebuttal witnesses, leaving the
remainder of 23,950 units installed by members of
Respondent Unions or composite crews. As has previously
been shown, since the introduction of the product to the
industry, manufacturers of fiberglass units have delivered
and installed some 319,000 units with installers employed
by them, who are members of locals affiliated with the
Carpenters Union. Assuming, for the purpose of these
proceedings, that the evidence of the aggregate number of
units allegedly installed by plumbers or composite crews is
a reliable index of the work performed by them on
fiberglass units, the quantum would represent less; than 7
percent of the total number of units installed by the
manufacturers."
To the extent that it may be material to any of the issues
herein, it is found that, between late 1969 and mid-1972,
members of Respondent Unions, either separately or as
part of a composite crew, installed approximately 7 percent
of the total number of fiberglass units throughout southern
California.
It should be noted that the vast majority of the
installation work which the plumbers claim to have
performed was done after 1969, when the contract
containing the controversial paragraphs 12 and 13 was
executed. Such installation work as was performed by
plumbers between 1961 and 1963, when jobsite action to
"Evidence offered by Respondents in surrebuttal has not been members of plumbers locals of approximately 3,500 units . As to these jobs,
overlooked. Members of Respondent Unions claimed to have installed it is evident from their testimony that the work of installation hadmot been
fiberglass units on various jobs on which manufacturers employees testified awarded to the plumbing contractors, and that such work as was done by
they performed the installation. The testimony of Respondents' witnesses the plumbers was performed in response to pressure exerted by plumbers
revealed, however, that they had direct knowledge of installations by union representatives on the plumbing or general contractors at the jobsite.
SOUTHERN CALIFORNIA PIPE TRADES 723
obtain this work was enjoined by the court, was sporadic
and relatively insignificant in volume.12 Apparently no
further attempts were made to assert a claim to this work
until after 1969, when the current contract was executed.
That Respondents thereafter made a determined effort to
obtain the work of installation of fiberglass units cannot be
gainsaid.
Analysis and Conclusions
Section 8(e) of the Act provides, in pertinent part:
It shall be an 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
heretofore or hereafter containing such an agreement
shall be to such extent unenforceable and void:
Provided, That nothing in this subsection (e) shall apply
to an agreement between a labor organization and an
employer in the construction industry relating to the
contracting or subcontracting of work to be done at the
site of the construction, alteration, painting, or repair of
a building, structure, or other work.
It is unnecessary to review the history of the secondary
boycott and "hot cargo" provisions of the Act, ' as
amended. National Woodwork 13 still stands as the primary
source for the interpretation and application of Section
8(e). Later cases in the circuit courts and before the Board
involve variations on the same theme. The crucial issue still
remains whether the sole objective of the challenged
clauses was to protect and preserve work of unit employees
or to acquire for its members work which they had not
previously performed, that is to say, to achieve objectives
elsewhere. This involves a determination of whether the
work in question has been traditionally and historically
performed by unit employees, or whether through the
interpretation and application of the clauses, Respondent
Unions are attempting to enlarge the bargaining unit and
affect the labor relations policies of employers other than
those with whom they have collective-bargaining relations.
The record here fairly establishes that, despite Respon-
dents' claim that they had attempted to assert jurisdiction
over the installation of fiberglass units at least as early as
1961 (bearing in mind that the product was first introduced
12 Both Everett E. Schell; business manager of District Council No. 16,
and Ernest L. Duval, business agent of Local 582, confirmed that from the
date of the injunction in 1963 to the latter part of 1969, when the clauses in
question became effective, virtually none of the installation of fiberglass
units was performed by members of locals affiliated with the District
Council, and these unions asserted no claim to the work because they
regarded fiberglass units as no more than a passing fad.
13 National Woodwork Manufacturers Association v. NL.RB., 386 U.S.
612, and the companion case, Houston Insulation Contractors Assocaition v.
N.LRB., 386 U.S. 664 (1967).
14 American Boiler Manufacturing Association v. N.LR.B., 404F.2d 547,
552 (C.A. 8, 1968).
15 Although, as has been mentioned elsewhere, the Board's findings in
the 10(k) proceeding are not to be regarded as res judicata in any subsequent
in the latter part of 1959), such efforts were of a sporadic
nature, and from about 1963, when the injunction was
issued against the activities of Respondent Unions, until
late in 1969, when the disputed clauses took effect,
Respondents performed no work (other than that custom-
arily involved in the connection of plumbing fixtures), in
regard to the delivery and installation of fiberglass units. It,
therefore, cannot be contended that the unit employees
were performing "traditional work", i.e., work which they
had performed and were still performing "at the time they
negotiated a work preservation clause." (Emphasis sup-
plied.) 14
The work in question, the delivery and installation of
fiberglass units, had been performed throughout that
interval by employees (installers) who were members of
other unions (Carpenters) employed by Kimstock and
other manufacturers, who were not members of Respon-
dent Employers Council, with the knowledge and acquies-
cence of Respondent Unions. These manufacturers'
employees themselves had, and continued to have, a
legitimate claim to the performance of this disputed work.
The distinctive nature of the product, a single, self-
contained, synthetic fiberglass tub and shower, while
functionally similar to the metal tub, is manufactured by a
process unique to the product, and by the very nature of its
composition entails the use of different tools and skills,
much of the installation involving carpentry work or work
more closely related to skills traditionally employed by
members of that craft. The differences in the method of
installation of fiberglass tubs and showers as compared
with the installation of metal tubs, have already been
described.15
Respondents contend, without conceding, that even if
fiberglass tubs and showers are deemed a new product'or a
refinement of an old product, its members have traditional-
ly performed the type of work they now seek to perform,
and that the work is, at the very least, fairly claimable.
They contend, moreover, that for the work to be deemed
traditional or fairly claimable, it is not necessary that the
work be currently, continuously and exclusively performed
by unit members. Thus, relying on the American Boiler
case,16 they maintain, in effect, that even if unit members
have performed a relatively small proportion of the
disputed work, this does not deprive the work of its
character as "traditional work."
Respondents' view ;disregards the finding in National
unfair labor proceeding, it is not inappropriate to note that the work in
dispute was described there as the installation of "synthetic bathtubs and
showers at construction jobsites in the southern California area, including
but not limited to the unloading, uncrating , and handling of synthetic
bathtubs and showers from initial unloading to the point of installation,
setting the fixture to and over the plumbing rough -in, and drilling necessary
holes including the installation of drain spuds in the shower stall units
(which is performed at the Employer's plant), but excluding the hooking up
of waste and water connections at the jobsite . " See fn. 9.
16 American Boiler Manufacturers Association v. N L RB„ 404 F 2d 547,
552, where the court said, "We hold only that the term `traditional work'
includes work which unit employees have performed and are still
performing at the time they negotiated a work preservation clause." (Emphasis
supplied.) The italicized phrase can hardly be regarded as incidental.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Woodwork that the disputed work had "at least customarily
been performed by the carpenters on the jobsite." 17
(Emphasis supplied.) To hold that unit employees have
performed the disputed work in relatively small quantities,
is not tantamount to finding that they have customarily
performed such work. In this sense, the word "customari-
ly" must be deemed to mean work that the unit employees
have generally or for the most part performed.18
The American Boiler decisions,19 on which Respondents
rely, are distinguishable on the facts. In those cases, with
the advent of packaged boilers, the work of assembling
trim pipe and other component parts, which had previously
been performed at the jobsite by the unit employees, was
completely eliminated, and the work opportunities of the
union members drastically reduced. In the instant case, the
introduction of fiberglass tubs and showers has had no
appreciable effect on the traditional work of plumbers', i.e.,
the connection of valves, wastes, and drains to the pipes
and plumbing system.20
Respondents contend in their brief that the plumbers are
only seeking to perform the same kind of tasks that they
had performed on the old-style tubs and showers; namely,
the distribution of the product to the bathroom and the
setting in place of the tub and shower. The only new task
the plumbers seek, Respondents assert, is the drilling of the
holes, but that, they contend, is so intimately related to the
valves on which plumbers work, that it is reasonable for
the plumber to drill his own holes so that they will fit and
match the valves. Other tasks which the plumber has never
performed, Respondents maintain, such as the nailing of
the units to the wall, etc., the plumber "leaves to the
carpenter and does not claim." The latter statement does
not appear to be wholly in accord with the facts established
by the record, unless what Respondents are alluding to is
the requirement for the use of the composite crew. The
evidence, as revealed in the testimony of various plumbers
regarding specific jobs on which they worked, indicates
that they claimed to have performed the job of installing
the fiberglass products either entirely by themselves, or, in
some instances, as part of a composite crew.
As to the "distribution" of the product, which, as used at
the hearing, entailed unloading of the fiberglass units from
the point of delivery, carrying them into the bathroom and
setting in place, tasks which, according to Respondents,
were the same as their members had performed on the old-
style tubs and showers, as has already been noted, the
installation of fiberglass units required substantial prepara-
tion before and during the setting in place, of the kind not
previously engaged in by plumbers. Moreover, the fiber-
glass unit, molded at the factory as a self-contained unit,
obviously entailed special handling, in contrast to metal
tubs and showers, more competently and efficiently
performed by the installers. The fact that plumbers had
formerly "distributed" the metal tubs did not give them a
vested interest in performing that work task on what was
for all intents and purposes a new product.
As to the drilling of holes for valves on fiberglass units,
an operation customarily performed at the factory, the
record discloses that, although there were instances in
which factory-drilled holes did not conform to the
configuration of the plumbing tree, in those instances the
holes were actually redrilled by the plumbers, and the areas
surrounding the original holes refilled by the installers or
persons performing final inspection on behalf of the
manufacturer. These circumstances are not in themselves
sufficient to establish that the drilling of holes in the
fiberglass product was work customarily performed by
plumbers, so as to constitute work which they were entitled
to preserve for themselves or which they were fairly
entitled to claim . Moreover, to hold that the mere drilling
of holes was fairly claimable work would result in the
fragmentation of the installation process to the detriment
of efficiency.
On the basis of the entire record, and for reasons
previously stated, including the basic difference in materi-
als, composition, and configuration of the fiberglass tubs
and showers, the substantial differences in method of
installation , the evidence that installations by plumbers or
composite crews were often the result of action taken by
plumbers' representatives at jobsites, it is concluded and
found that the disputed clauses were not primary work-
preservation clauses involving fairly claimable work but
were, in fact, work-acquisition clauses designed to capture
work not previously customarily or traditionally performed
by unit employees who were members of the plumbers
unions, and that by executing said clauses and attempting
to enforce them Respondent Unions and Respondent
Employers Council have engaged in and are engaging in
unfair labor practices within the meaning of Section 8(e) of
the Act.21
17 Metropolitan District Council of Philadelphia, Carpenters (National
Woodwork Manufacturers Assn), 149 NLRB 646, 657.
19 Sheet Metal Workers Union, Local 216 (Associated Pipe and Fitting
Manufacturers), 172 NLRB 35. Respondents' contention that the Board
merely held that the work was not fairly claimable because it was performed
by unit employees only in exceptional circumstances, and that in Local
Union No. 98 of the Sheet Metal Workers ' International Association
(Cincinnati Sheet Metal & Roofing Co.), 174 NLRB 104, enfd. as modified
433 F.2d 1189 (C.A.D.C., 1970), the work was not fairly claimable, because
the disputed work was performed by the union only in unusual or
emergency work situations, are unduly restrictive interpretations of these
decisions
19
United Association Pipefitters Local Union No. 455, 154 NLRB 285,
and United Association Pipefitters Local Union No. 539, 154 NLRB 314. See
also American Boiler Manufacturers Association v. N.L.R.B., 404 F 2d 547
(C.A. 8, 1968).
20 The rack jobber cases cited by Respondent Unions do not support the
contention that the disputed clauses here constituted work preservation
clauses or that the work involved was fairly claimable by the unit
employees. In those cases , the union, after having abandoned the work of
shelf-stocking for 10 years, sought to recapture the work by attempting to
apply a work preservation clause to all shelf-stocking work, despite the
increase in number and variety of shelf-stocked items in the intervening
years. This work entailed no difference in the method of shelf-stocking but
merely in the number and variety of items shelved. The shelving continued
to be performed in the same manner as previously done by the unit
employees . Retail Clerks ' Union, Local No. 648 (West Bay Assn of Food
Industries), 171 NLRB 1018; Retail Store Employees, Local Union 876 (Allied
Supermarkets, Inc.), 174 NLRB 424. The same may be said for Teamsters,
Chauffeurs, Warehousemen & Helpers Local 386 (R.P.B. Trucking, Inc.), 172
NLRB 1037, where the Board held that "overflow" work, incidental to the
principal work of unit employees, which they had performed only
occasionally in the past , was fairly claunable because closely allied to and
identical with work traditionally performed by members of the unit.
21 As has been noted at the outset, Respondent Employers Council has
admitted the 8 (e) allegations of the complaint but alleges that it entered into
SOUTHERN CALIFORNIA PIPE TRADES 725
Respondent Unions further contend that if a finding is
warranted that the work-preservation clauses are'secondary
or the work is not fairly claimable, then the provisions
are exempt by the proviso to Section 8(e). Under the
proviso, this section does not apply to "an agreement
between a labor organization and an employer in the
construction industry relating to the contracting or
subcontracting of work to be done at the site of the
construction, alteration, painting or repair of a building,
structure, or other work." The Board has held that this
proviso applies only to an agreement relating to work to be
done at the jobsite. The proviso does not extend to work
that is not to be performed at the construction site.22
While the question of whether the proviso applies here is
not altogether free from doubt, it is evident that at least
part of the work in issue does not necessarily entail on-site
work. Of course, the entire fiberglass unit is fabricated at
the manufacturer's plant, where holes for shower heads
and valves are drilled. Respondent Unions have main-
tained that members of their unions are entitled to drill
these holes at the jobsite, and have assessed damages
against certain plumbing contractors who have failed to
perform this work.
But assuming that the disputed provisions were intended
to apply to on-site work, the General Counsel contends
that these provisions provide for unlawful self-help under
the Ets-Hokin case.23
Under paragraph 12, plumbing contractors are required
to report to the Unions with regard to all subcontracts
exceeding $20,000, and if all the work of plumbers has not
been awarded to the plumbing contractor, the matter is to
be taken up with the awarding- authority. Under this
provision, the Unions may refuse to permit employees to
work on the jobsite for 7 days until the meeting with the
awarding authority has been held. Subparagraph 13
provides for a nonjudicial remedy for failure to abide by
these provisions.
Respondent Unions do not contend that paragraph 12 is
protected by the proviso to Section 8(e). They contend,
however, that this language merely requires that a meeting
be held by the plumbing contractor and the Union with the
awarding authority to afford the Union an opportunity to
persuade the awarding authority to change the work
assignment. If the signatory plumbing contractor does not
arrange such a meeting, Respondents argue, the Union
then has the contractual right to refuse to permit its
members to work. Respondents maintain that paragraphs
12 and 13 are separable, and that paragraph 13 need not
depend on the existence of paragraph 12. Thus, they
contend that if the 7-day clause under that paragraph is
held to be a form of unlawful self-help, such finding would
merely invalidate paragraph 12, leaving paragraph 13,
which they maintain is protected by the exemption under
the proviso, intact. Respondent Unions recognize, howev-
er, that the provision for the assessment of damages may
constitute a coercive self-help measure.
Conceding that under the Ets-Hokin holding, threats,
coercion, or restraint, proscribed by Section 8(b)(4)(B),
the provisions involved under "economic coercion and duress" only after a
prolonged strike. It is axiomatic that economic exigencies do not constitute
a defense to the commission of unfair labor practices.
constitute a self-help provision which would invalidate a
contract otherwise exempt from the operation of Section
8(e), Respondent Unions argue that only if the provisions
for assessment of damages under paragraph 13 are held to
constitute Section 8(b)(4)(ii)(B) conduct, may they be
denied the protection of the proviso to Section 8(e).
The General Counsel contends that both the provisions,
according the Unions the right to refuse to permit unit
employees to work on the jobsite for 7 days, under
paragraph 12, and the provisions for the assessment of
damages, under paragraph 13, constitute unlawful means
of self-help and self-enforcement, depriving the provisions
of the protection of the proviso. Additionally, the General
Counsel maintains that since both paragraphs affect the
same subject matter, i.e., work which has not been awarded
to the signatory contractor, the self-help provision of
paragraph 12 is equally applicable to paragraph 13, and
that both paragraphs are removed from the protection of
the construction industry proviso.
For the reasons stated by the General Counsel, it is
found that paragraphs 12 and 13 are not exempt under the
proviso to Section 8(e) of the Act. It is further found, for
reasons stated hereinafter in the discussion of the Section
8(b)(4)(ii)(B) allegations of the complaint, that the self-help
provisions and the enforcement of those provisions,
constitute threats, coercion and restraint within the
meaning of Section 8(b)(4)(ii)(B) of the Act.
E. The 8(b)(4)(ii)(B) Allegations
1. Threats, coercion, and restraint
Although the General Counsel maintains that local
unions affiliated with Respondent District Council have
engaged in numerous jobsite disputes with Kimstock and
other fiberglass unit manufacturers, he relies only on four
specific instances of violation of this section of the Act.
The gravamen of these allegations is that Respondent
Unions (1) threatened to withhold plumbing crews from
plumbing contractors, bound by the collective-bargaining
agreement , unless these contractors were awarded the work
of delivering and installing fiberglass units either by
themselves or as part of a composite crew; and (2) assessed
damages against plumbing contractors who failed to
comply with section III, paragraph 13, of the collective-
bargaining agreement, because Kimstock employees, rath-
er than plumbers employed by plumbing contractors, were
permitted to perform all the work involved in the delivery
and installation of the fiberglass units.
The facts relating to these incidents have been stipulated
and are not in dispute.
On or about August 2, 1971, Kimstock entered into an
agreement with Interland Development Company, Inter-
land herein, a general contractor, providing for the delivery
and installation of fiberglass tubs and shower stalls at a
jobsite at Mesa Verde East, Costa Mesa, California, where
Interland was engaged in a construction project. On June
17, 1971, Interland had entered into a contract with Bolle
Mechanical Contractors, Bolle herem, the plumbing
22 Southern California Pipe Trades District Council No 16 of the United
Association (Seefore Corporation), 193 NLRB 796, and cases cited.
23 Ets-Hokin Corp., 154 NLRB 839, enfd . 405 F.2d 159 (C.A. 9, 1969).
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contractor on the job, a member of Respondent Employers
Council, expressly providing that the fiberglass tubs and
showers on the job were to be supplied, delivered, and
installed by persons other than the plumbing contractor.
A dispute arose between Respondent Local 582 and
Kimstock as to whether Kimstock's installers or plumbers
employed by Bolle were entitled to install the fiberglass
units at the jobsite. On October 6, 1971, Maurice Myers,
Kimstock's vice president, was summoned to the jobsite. A
meeting was held at the jobsite attended by Robert
Foreman, Interland's vice president; Jerry Phillips, Inter-
land's project manager; "Butch" Thompson, Kimstock's
sales manager; Michael Burns, representing Bolle; and
Don Wade, business manager, and Gene Duval, business
agent, of Respondent Local 582.
At Phillips' request, Myers stated his position that
Kimstock had traditionally performed the work of deliver-
ing and installing the fiberglass units, and that Kimstock
had contracted with Interland to perform this work with
Kimstock's installers, who were represented by the Carpen-
ters Union. Union Business Manager Wade requested that
Kimstock comply with the provisions of the collective-
bargaining agreement calling for the use of a composite
crew, and proposed that a crew consisting of members of
the Plumbers and Carpenters Unions deliver the units and
that employees of the plumbing contractors be permitted
to drill the holes in the units. Myers refused, insisting that
this work belonged to the installers, employed by Kim-
stock.
Burns suggested to Phillips that Interland comply with
Wade's demands by executing an addendum agreeing that
the work be performed on a composite crew basis. Phillips
refused. Myers offered to compromise the dispute by
defraying a part of the cost of having Bolle's employees
perform the work. Wade stated that unless Kimstock
complied with the provisions of the agreement for a
composite crew, he would not supply employees to Bolle.
Bums remarked that only the Government and the
Plumbers Union could "put him out of business," but
asked Wade what would happen if his request for a
composite crew were refused. Wade said that he would
refuse to supply plumbers to Bolle.24
The dispute at this jobsite remained unresolved and, on
October 20, another meeting was held between representa-
tives of the same parties, augmented by representatives of
the Carpenters Union. Present on behalf of Kinistock were
Olaf Wik, William Thompson, Jack Bonner and Hal Reitz;
on behalf of Interland, "Butch" Thompson and Robert
Foremen; on behalf of Bolle, Michael Bums; on behalf of
Respondent Local 582, Gene Duval; and on behalf of the
Carpenters Union, Mac McGuire and an associate. The
discussion was essentially the same as on October 6. Duval
reiterated his demand that Bolle's employees, plumbers
who were members of his local, perform the work of
installing the fiberglass units, pursuant to the composite
crew provisions of the agreement. McGuire rejected this
demand, and stated that the work would be performed by
Kimstock's installers, who were represented by the Carpen-
ters Union. When Reitz protested to Duval that members
of the Carpenters Union had traditionally installed the
fiberglass units in their entirety for over 9 years, Duval
remarked that the plumbers unions had not asserted any
claim to perform this work because they had regarded the
fiberglass tubs and showers a passing fad.
The Interland representatives asserted that they could
not afford to have the job shut down. Before the meeting
concluded, Duval stated that if Kimstock insisted on
installing the fiberglass units, it might as well be prepared
to hook up the wastes and overflows.
Respondents contend that Bolle was at all times the
primary employer and that even if the statements by the
business agent at both meetings were coercive, they were
directed to Bolle in furtherance of a lawful primary work-
preservation clause contained in the collective-bargaining
agreement between Bolle and Respondents. Moreover,
Respondents contend that even if Bolle is held to be a
secondary employer, Duval's statements were not coercive.
In support of this contention, Respondents assert that, in
the context in which the statements were made, Duval's
statement at the October 20 meeting could not reasonably
be construed as a threat to withhold the services of
members of his local. Duval testified that his statement
followed, and was made in response to, a remark by a
carpenter's business agent that he would not permit
carpenters to work with plumbers in the installation of the
fiberglass units. Thus, Respondents argue, the import of
Duval's statement was that if carpenters were unwilling to
work with plumbers, they would find themselves working
alone, and would therefore encounter difficulty in remov-
ing the protuding valves and installing backups. This is a
strained and unrealistic interpretation of Duval's state-
ments.
There is no question but that Respondent District
Council, and its affiliated locals, including Respondent
Locals 230 and 582, were engaged in a primary dispute
with Kimstock in regard to the delivery and installation of
fiberglass units at various jobsites throughout southern
California, work which these Respondents claimed to be
entitled to perform. To this end, Respondent Unions had
entered into the so-called work-preservation clauses. When
these clauses failed to accomplish the desired result, Duval
sought to exert pressure on the plumbing contractors, as
well as the general contractors, to force the general
contractor, in this instance, Interland, to cease doing
business with Kimstock. In this context, Duval's state-
ments to Bolle are more reasonably construed as a threat
to withhold the services of the plumbers in order to exert
pressure on Bolle and Interland to cease doing business
with Kimstock. These threats constituted an effort to
disrupt and interfere with the construction project by
enmeshing both neutral employers in the dispute between
Respondent Unions and Kimstock. On the basis of the
right-to-control test, which, as of this writing, the Board
has not repudiated, and which is binding on me, notwith-
standing the holding of the various circuit courts,25 it is
evident that, vis-a-vis Respondent Unions, Bolle and
Interland were secondary or neutral employers. Under the
right-of-control theory, Bolle was a neutral employer in
24 Although Wade denied making this statement, his denial is not sought by the Union.
credited. The statement appears logical and consistent with the objective 25 Iowa Beef Packers, Inc., 144 NLRB 615.
1
SOUTHERN CALIFORNIA PIPE TRADES 727
that it had no right of control over the assignment of the
disputed work, since Interland, the general contractor, had
previously contracted with Kimstock for the purchase,
delivery, and installation of the fiberglass units at the
jobsite. If the object of Duval's statements was to force
assignment of the disputed work to members of Local 582,
such conduct, directed toward a neutral person in
furtherance of such object constitutes a violation of Section
8(b)(4)(ii)(B) of the Act 26
Respondent District Council No. 16's contention that,
even if it should be found that Respondents Local 230 and
582 have engaged in unfair labor practices within the
meaning of Section 8(b)(4)(ii)(B), their conduct cannot be
imputed to it, is considered later.
2. The assessment of damages against Orcon and
Leaverton
On or about July 21, 1971, Kimstock entered into an
agreement with Christiana Community Builders, Inc.,
Christiana herein, a general contractor, for the sale,
delivery, and installation of fiberglass tubs and showers at
the general contractor's Tierrasanta jobsite, in San Diego,
California. On or about July 9, Bob Leaverton Plumbing,
Inc., a plumbing contractor, subject to the collective-
bargaining agreement, entered into a contract with
Christiana to perform the plumbing work at the Tierrasan-
ta jobsite. This contract expressly provided that fiberglass
tubs and showers were to be installed and drilled by other
persons.
Employees of Kimstock installed the fiberglass showers
with strainers at the Tierrasantajobsite. Respondent Local
230 filed a grievance against Leaverton, claiming a
violation of section III, paragraph 13 of the collective-
bargaining agreement,- in that Leaverton had permitted
fiberglass shower stalls with strainers to be installed at the
jobsite by employees other than unit employees covered by
the collective-bargaining agreement. On about September
24, a joint subcommittee, composed of representatives of
Respondent Employers and Respondent District Council,
assessed damages in the sum of $174.60, against Leaverton
for the violation.
On or about May 18, 1971, Kimstock entered into an
agreement with Morley Construction Company, Morley
herein, a general contractor, for the sale, delivery, and
installation of fiberglass tubs and showers at the general
contractor's Highridge Apartment jobsite, at Palos Verdes
Peninsula, California., On or about April 29, Morley had
entered into an agreement with Orcon, Inc., Orcon herein,
a plumbing contractor, subject to the collective-bargaining
agreement, to perform plumbing work at this jobsite. The
contract expressly provided that the fiberglass tubs and
showers would be supplied, drilled, and set by others.
Plumbers Local 78, a local affiliated with Respondent
District Council, filed a grievance against Orcon, claiming
a violation of section III, paragraph 13 of the collective-
bargaining agreement, in that Orcon had permitted the
installation of fiberglass tubs and showers at the general
contractor's Palos Verdes Peninsula jobsite, without
utilizing a composite crew, consisting of employees who
were members of the Plumbers Union, and employees who
were members of the Carpenters Union. On or about
October 12, 1971, a joint subcommittee, composed of
representatives of Respondent District Council and Res-
pondent Employers Council, assessed damages against
Orcon in the sum of $330. Local 78 appealed this decision
and on December 20, 1971, before any hearing was held on
the appeal, Orcon paid an additional sum in the amount of
$630.30 to the Union's retirement trust fund.
The record leaves no doubt that Respondent Unions had
demanded that Orcon and Leaverton perform the work
which Kimstock's employees had performed at each of
these jobsites despite the fact that the fiberglass units had
been purchased by the general contractors from Kimstock
under an agreement for the delivery and installation by
Kimstock. Thus, it is evident that neither Orcon nor
Leaverton were in a position to comply with the Unions'
demands. Both plumbing contractors were secondary or
neutral employers insofar as the dispute between the
Unions and Kimstock was concerned, enmeshed between
the conflicting demands of the Unions and Kimstock's
customers, the general contractors. On the basis of the
right-to-control test, neither Orcon nor Leaverton could
resolve the controversy over the disputed Work. It is clear
that the object of the assessment of damages against Orcon
and Leaverton was to force these neutrals by economic
coercion to refuse to perform work at jobsites at which
Kimstock's installers were employed, in order to place
pressure on Kimstock's customers, the general contractors,
to cease doing business with Kimstock.
Relying upon the American Boiler cases,27 Respondents
contend that the assessment of damages does not consti-
tute conduct proscribed by Section 8(b)(4)(ii)(B) of the
Act. This presupposes that the assessment of damages
against Orcon and Leaverton was merely an attempt to
enforce a legitimate contract provision designed to pre-
serve wage rates and fringe benefits in the event Kim-
stock's employees were permitted to perform the work.
Under paragraph 13, section III of the collective-bargain-
ing agreement, however, a contractor signatory to the
agreement agrees to pay the equivalent of wage rates and
fringe benefits lost by employees covered by the agreement
into the retirement trust fund of the Plumbing and Piping
Industry of Southern California, where work which would
normally have been performed by unit employees, is
performed by employees of contractors who are not parties
to the agreement. In such situations, however, wage rates
and fringe benefits paid into the trust fund do notinure to
the benefit of the unit employees, here, the employees of
Orcon and Leaverton, who were allegedly deprived of the
work, but to the industry trust fund generally. The only
way in which Orcon and Leaverton, or signatory employers
similarly situated, could avoid payment of the wage rate
and fringe benefit under paragraph 13, section III of the
agreement, would be if it performed the work itself,
something which it was unable to do since this work had
been contracted by the general contractor to Kimstock. It
is thus evident that the real objective of this language was
26 N.L.R.B. v. Local 825, International Union of Operating Engineers 27 United Association Pipe Fitters Local Union No. 455 (American Boiler
[Burns and Roe], 400 U.S. 297. Manufacturers Association), 154 NLRB 285, 291; 167 NLRB 602, 603.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to penalize signatory contractors, such as Orcon and
Leaverton, for failing to insist on performing the disputed
work by exerting pressure on Kimstock's customers to
accomplish this end.
Since neither Orcon nor Leaverton had the right to
control the awarding or assignment of the disputed work, it
must be evident that Respondent District Council's real
objective in assessing damages against them was to achieve
secondary objectives, and that this action was calculated to
dissuade Orcon and Leaverton from performing work at
the jobsites in order to force Kimstock's customers to cease
doing business with Kimstock or, as Union Representative
Schell testified, to compel the plumbing contractor to
surcharge the general contractor with the amount of the
damages assessed, thereby forcing the general contractor to
cease awarding the disputed work to Kimstock.
Under all the circumstances, the provision for the
assessment of damages provided for under section III,
subsection 13, constituted a penalty designed to further a
secondary objective, hence, coercive, and violative of
Section 8(b)(4)(ii)(B) of the Act 28
Respondent Unions reliance upon the American Boiler
cases is misplaced. As pointed out by the Board in the
Continental case,29 the fine in the former cases was
imposed for the purpose of preserving unit work, a lawful
primary objective, which, even if coercive, was not
prohibited by Section 8(b)(4)(ii)(B). Since it has been found
here that the provision for the assessment of damages was
designed to achieve a secondary object, i.e., to acquire
work for unit employees which they had not traditionally
and customarily performed, and to penalize secondary or
neutral employers for failing to insist on the performance
of the disputed work, over the awarding or assignment of
which they had no right to control, to force the general
contractors to cease doing business with Kimstock, the
American Boiler cases are inapposite.
It is, therefore, found that, by entering into and
enforcing the provisions of the collective-bargaining
agreement for assessment of damages, and by assessing
such damages against Orcon and Leaverton for the
purposes above described, Respondent Unions have
engaged in unfair labor practices within the meaning of
Section 8(b)(4)(ii)(B) of the Act.
F. Respondent District Council's Responsibility for
the Unfair Labor Practices Committed by Respondent
Locals 582 and 230
Respondent District Council contends that even if
Respondent Locals 582 and 230 are found to have violated
Section 8(b)(4)(ii)(B), a finding is not necessarily warranted
that it too has violated this section of the Act. The District
Council, it maintains , is a separate labor organization and
neither of the locals was acting as its agent when it engaged
in the conduct found to be unlawful . This Respondent
relies on the uncontroverted testimony of Everett E. Schell,
business manager of the District Council . According to
him, there are 17 locals affiliated with the District Council,
each of which elects three delegates to the Council, who in
turn elect its officers, of whom Schell and his assistant are
the only full-time officers.
The delegates to the Council elect a negotiating commit-
tee, and the collective-bargaining agreement negotiated by
the committee is executed by the District Council. Neither
Schell nor his assistant are members of the negotiating
committee, although Schell acts as secretary. The delegates
to the Council decide on the proposals to be submitted to
the employers. Schell receives his instructions from the
negotiating committee. When negotiations have been
completed, the District Council prepares the formal
agreement, distributes copies to the parties and performs
other ministerial functions. The agreement is ratified by
the delegates to the District Council.
On occasion, Schell has been called on by local unions
affiliated with the District Council for an opinion or advice
regarding the interpretation given particular provisions of
the agreement in the course of negotiations. The District
Council performs no other function in the administration
of the labor agreement.
In the matter of charges against contractors for alleged
breaches of the agreement, including those arising out of
violations of section III, subparagraphs 12 and 13, these
charges are filed by the local involved, with copies to the
District Council. Hearings on such charges are held before
the joint arbitration board provided for in the collective-
bargaining agreement. The District Council has no
authority to file charges for alleged violations of the
collective-bargaining agreement, such authority being
lodged in the local union, which need not secure approval
of the District Council to file charges. The District Council
cannot decide whether arbitration shall be invoked by the
local union. Although Schell serves as secretary of this
board, his duties are limited to recording minutes of the
meeting and issuing official communications on behalf of
the Board. He does not vote in proceedings before the joint
arbitration board. Schell's assistant acts in a similar
capacity on the subcommittee of the joint arbitration
board, on behalf of the joint arbitration board, with regard
to alleged violations of the fabrication provisions of the
agreement.
The Council maintains a separate office from the
affiliated locals, with separate telephone and stationery,
and files separate reports with the Department of Labor, as
well as tax returns. Each local union has exclusive
geographical jurisdiction in its own territory, and has no
jurisdiction in the territory of any other local. No affiliated
local is required to abide by decisions made by the
delegates of the District Council. Only the local union may
decide to call a strike, and the District Council has no
authority to veto such a decision.
On the basis of this testimony, Respondent District
Council contends that it may not be held responsible for
any unfair labor practices in which any of its affiliated
locals may be found to have engaged.
With regard to the 8(e) violations, it is obvious that,
28 Sheet Metal Workers International Association, Local Union No. 223
(Continental Air Filters Company), 196 NLRB 55; Orange Belt District
Council of Painters No. 48 (Calhoun Drywall Company), 153 NLRB 1196,
1200.
29 See fn. 28.
SOUTHERN CALIFORNIA PIPE TRADES 729
having signed the collective -bargaining agreement , without
limitation or qualification, whether acting in a representa-
tive capacity on behalf of its affiliated locals or on its own
behalf as a separate labor organization, the District
Council was a signatory to an agreement containing an
invalid work-preservation clause , violative of Section 8(e).
By executing and enforcing such an agreement , Respon-
dent District Council has engaged in unfair labor practices
within the meaning of said section.
Insofar as the 8(b)(4)(ii)(B) violations involving the
coercive conduct against Bolle Mechanical Contractors
and Bob Leaverton Plumbing, Inc., arising out of the
threats to withhold services of members of the named
locals, there was no showing that the District Council in
any was engaged or participated in the conduct com-
plained of or that either Respondent Local 582 or
Respondent Local 230, was acting as agent of the District
Council or in any representative capacity on its behalf or
under circumstances which would afford reasonable cause
to believe that either of said Respondent Locals was so
acting with the knowledge, consent, or acquiescence of the
District Council. While these two locals may have been
acting in the interest , of, and for the benefit of the other
affiliated locals, in furtherance of the purposes of the
provisions of section III, subparagraphs 12 and 13, of the
collective-bargaining agreement , this is not sufficient to
render the District Council liable under general principles
of agency or of collective bargaining.
The assessment of damages against Orcon, Inc. and Bob
Leaverton Plumbing, Inc. stands on a different footing.
Here, although the grievances were presumably filed by the
respective local unions, and the matters heard before the
Joint Arbitration Board, the damages were , to all intents
and purposes, assessed by representatives of the District
Council and paid into the industry trust fund for the
benefit of union members.
It is, therefore found that, by the assessment of damages
against Orcon, Inc. and Bob Leaverton Plumbing, Inc. in
the circumstan ces disclosed , Respondent District Council
No. 16 has engaged in unfair labor practices within the
meaning of Section 8(b)(4)(ii)(B) of the Act.
IV. THE EFFECT OF TIIE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents , set forth in section IIl,
above, occurring in connection with the operations of the
Employers described in section I, above, have a close,
intimate, and substantial relationship to trade , traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. TIM REMEDY
Having found that Respondents, Southern California
Pipe Trades District Council No. 16 of the United
Association, Plumbers & Steamfitters Local No. 582,
Plumbers and Pipefitters Local No. 230, and Plumbing-
Heating and Piping Employers Council of Southern
California, Inc. have engaged in unfair labor practices
within the meaning of Section 8 (e), and that said
Respondent Unions have engaged in unfair labor practices
within the meaning of Section 8(b)(4)(ii)(B) of the Act, it
will be recommended that they cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
CONCLUSIONS OF LAW
1. Plumbing-Heating and Pipmg Employers Council of
Southern California, Inc., Respondent Employers Council
herein, and Kimstock Division , Tridair Industries, Inc.,
Kimstock herein , are, and at all times material herein have
been, employers engaged in commerce and in businesses
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act. Bolle Mechanical Contractors, Bob
Leaverton Plumbing, Inc., and Orcon, Inc., are, and at all
times material herein have been, employer -members of
Respondent Employers Council.
2. Southern California Pipe Trades District Council
No. 16 of the United Association, Respondent District
Council herein, and Plumbers & Steamfitters Local No.
582, and Plumbers and Pipefitters Local No. 230, Respon-
dent Unions herein , each are, and at all times material
herein have been, labor organizations within the meaning
of Section 2(5) of the Act.
3. By entering into, maintaining , giving effect to, and
enforcing or attempting to enforce , the provisions of
section III , paragraphs 12 and 13, of the 1969-72
Plumbing-Heating and Pipmg Industry of Southern Cali-
fornia Agreement, Respondent Employers Council and
Respondent Unions herein, are engaging in, and have
engaged in , unfair labor practices within the meaning of
Section 8(e) of the Act.
4. By threatening , coercing, and restraining Bolle
Mechanical Contractors and Bob Leaverton Plumbing,
Inc., persons - engaged in commerce , where an object
thereof was to cause said persons to cease using, selling,
handling, transporting, or otherwise dealing in the prod-
ucts or services of Kimstock , Respondent Local No. 582
and Respondent Local No. 230 have engaged and are
engaging in unfair labor practices within the meaning of
Section 8 (b)(4)(ii)(B) of the Act.
5. By assessing damages against Orcon, Inc. and Bob
Leaverton Plumbing, Inc., persons engaged in commerce,
for failure to comply with the provisions of section III,
paragraphs 12 and 13 , of the 1969-72 Plumbing-Heating
and Piping Industry of Southern California Agreement,
where an object thereof was to cause said persons to cease
using, selling, handling, transporting or otherwise dealing
in the products or services of Kimstock, Respondent
District Council'No. 16 has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(b)(4)(ii)(B) 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.
[Recommended Order omitted from publication.)