American Boiler Manufacturers Association v. NLRB, No. 19034.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: MEHAFFY, GIBSON and HEANEY, Circuit
• Citation: 404 F.2d 556
• Parties: AMERICAN BOILER MANUFACTURERS ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Local Union 539 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Intervenor.
• Docket Number: No. 19034.
• Decision Date: 29 January 1969

404 F.2d 556 (1968)

AMERICAN BOILER MANUFACTURERS ASSOCIATION, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent, and
Local Union 539 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Intervenor.

No. 19034.

United States Court of Appeals Eighth Circuit.

December 6, 1968.

Rehearing Denied January 21, 1969.

Rehearing Denied January 29, 1969.

404 F.2d 557

Kenneth C. McGuiness, of Vedder, Price, Kaufman, Kammholz & McGuiness, Washington, D. C., for petitioner; Stanley R. Strauss on brief and reply brief with him.

Leonard M. Wagman, Atty., N.L.R.B., Washington, D. C., for respondent; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Gary Green, Atty., N.L.R.B., with him on briefs.

Donald J. Capuano, of O'Donoghue & O'Donoghue, Washington, D. C., for intervenor, United Assn. Pipefitters Local Unions 455 and 539; Martin F. O'Donoghue and Patrick C. O'Donoghue, Washington, D. C., on brief with him.

Gerard D. Reilly, Winthrop A. Johns and Lawrence T. Zimmerman, Washington, D. C., for Associated General Contractors of America and Mechanical Contractors Assn. of America, Inc. and John H. Pratt, Washington, D. C., for Air-Conditioning and Refrigeration Institute, filed brief as amici curiae for Associated General Contractors of America, Mechanical Contractors Assn. of America, Inc., and Air-Conditioning and Refrigeration Institute.

Before MEHAFFY, GIBSON and HEANEY, Circuit Judges.

Rehearing En Banc Denied January 21, 1969.

HEANEY, Circuit Judge.

This is a companion case to the St. Paul case (404 F.2d 547) and is before this Court for the second time.¹ Two issues are raised on appeal:² (1)

404 F.2d 558

Is the fabrication clause a per se violation of § 8(e)? (2) Is it a violation of § 8(b) (4) (B) for a union to threaten to strike to enforce a valid work-preservation clause if, at the time of the threat, the employer does not have the "right of control?"

We answer the first question in the negative for the reasons stated in the companion St. Paul case.

We answer the second question in the negative for the reasons stated hereafter.

The United Association Pipe Fitters Local Union No. 539 the Union, a sister Union to Local No. 455 in St. Paul, represents 700 craftsmen in the Minneapolis area. It claims jurisdiction over all pipefitting systems in its area. The Minneapolis Contractors Association is composed of contractors engaged in installing plumbing and heating equipment in the Minneapolis area.

After a number of unsuccessful attempts, the Union succeeded in obtaining a "fabrication" clause in its 1963 collective bargaining agreement with the Contractors Association. The clause was similar to the one negotiated in St. Paul.³ The agreement also provided for a fabrication committee with duties similar to those of the St. Paul committee.

The § 8(b) (4) (B) charge arises out of efforts of the Union to secure compliance with the fabrication clause on a building construction project for Tonka Toys, Inc.

The facts leading up to the dispute can be briefly summarized:

Lamb Company, a member of the Contractors Association and a party to the 1963 agreement with the Union, entered into a contract which specified that a packaged boiler was to be installed in the Tonka Toy building. Lamb ordered a packaged boiler through the Heinen Company, a representative of one of the boiler manufacturers. When it was delivered to the job site, the Union approached both Lamb and Heinen and demanded that certain piping be removed from the boiler before it was installed. It informed Lamb that the employees would be pulled off the job unless the demand was met.

The Board found that the Union's conduct was coercive but that it was for the purpose of preserving and reacquiring traditional work and was thus not violative of § 8(b) (4) (B). It did so on the premise that Lamb had the "right of control" — a premise which petitioner argues was faulty.

We agree with the petitioner that Lamb did not have the "right of control." The Board found that Lamb had a right to substitute an equivalent boiler. This finding is not supported by

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the record.⁴ A packaged boiler was specified⁵ and Lamb was bound by the specifications

The question remains: Was the Union's conduct violative of § 8(b) (4) (B) even though Lamb did not have the "right of control?"

When the St. Paul case was originally before this Court,⁶ we affirmed the decision of the Board. The Board had held that it was a violation of § 8(b) (4) (B) to threaten a primary employer with a strike to enforce a work-preservation clause if the primary employer did not have the legal right to select the type of boiler to be installed at the time the threat was made. We affirmed without benefit of the teachings of National Woodwork Manufacturers Association v. National Labor Relations Board, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967).

The Board faced the "right of control" issue in National Woodwork. It adhered to its precedent.⁷ The Court of Appeals for the Second Circuit, relying on Allen Bradley Co. v. Local Union No. 3, etc., 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945), sustained the Board. National Woodwork Manufacturers Ass'n v. N. L. R. B., 354 F.2d 594 (7th Cir. 1965). The Court stated:

"The Board held that the Union violated § 8(b) (4) (i) (ii) (B), by reason of its boycott of prefabricated doors on the Coatesville, North Junior High and St. Aloysius jobs, but as to Frouge, it held otherwise, giving as its reason, that, while in the first three jobs the specifications called for prefabricated doors and hence the Union target was the doors and persons making and distributing them, in Frouge the Union boycotted prefabricated doors which had been purchased by the contractor — but which were not required by job specifications. This conclusion seems to indicate that the Board held that the Union\'s target in Frouge was not the prefabricated doors and their manufacturer but rather contractor Frouge and that the situation involved only a primary dispute with him. We agree."

Id. at 597.

The Union did not seek review of the question before the Supreme Court. The AFL-CIO filed an amicus curiae brief in which it argued that the Board's "right of control" doctrine — "that the employees can never strike against their own employer about a matter which he lacks the legal power to grant their demand" — was an...