American Boiler Manufacturers Association v. NLRB

• Decision Date: 29 January 1969
• Docket Number: No. 19033.,19033.
• Citation: 404 F.2d 547
• Parties: AMERICAN BOILER MANUFACTURERS ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Local Union 455 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Intervenor.
• Court: U.S. Court of Appeals — Eighth Circuit

404 F.2d 547 (1968)

AMERICAN BOILER MANUFACTURERS ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Local Union 455 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Intervenor.

No. 19033.

United States Court of Appeals Eighth Circuit.

December 6, 1968.

Rehearing Denied January 21, 1969.

Rehearing Denied January 29, 1969.

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

Leonard M. Wagman, Atty., National Labor Relations Board, 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, on 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 the second time that this matter has been before this Court. On the first occasion, we enforced the Board's order in part. We then remanded the matter to the Board to determine the legality of a "fabrication" clause in a collective bargaining agreement between the United Association Pipe Fitters Local Union No. 455, and the St. Paul Association of Plumbing, Heating and Mechanical Contractors, Inc., and to take other action consistent with the views expressed in the opinion. American Boiler Manufacturers Association v. N. L. R. B., 366 F.2d 815 (8th Cir. 1966).

The facts are reported in detail in the two decisions of the Board¹ and the earlier decision of this Court, and will be repeated here only to the extent necessary to an understanding of the opinion.

Packaged boilers with trim piping attached were introduced and used in the St. Paul area before 1941. By the mid-1940's, ten per cent of the boilers being installed were of the packaged variety. Their use increased rapidly and by 1963, had risen to sixty to eighty-five per cent of all boiler installations.

Prior to the use of packaged boilers, the boilers and the trim piping were shipped separately and assembled on the job site by members of the Union. The advent of packaged boilers resulted in a decrease of work at the job site for members. The work claimed took two men about two days for each installation.

In 1959 and 1961, the Union tried unsuccessfully to obtain a clause in their agreement with the Association requiring that trim piping be installed by unit employees. They obtained such a clause in 1963:

"Article II.

* * * * * *

"(c) Fabrication.

"As a primary working condition, it is agreed that all pipe formations, systems, or controls, or component parts thereof, included within the nonpurchase list attached hereto and made a part hereof as Exhibit I, as amended from time to time as provided in this agreement, shall be fabricated on the job site or in the shop of an Employer² within the bargaining unit who is bound by this agreement, except as otherwise mutually agreed upon with relation to any particular job."

"Exhibit I.

"Non-Purchase List.

* * * * * *

"2. On boilers, all piping beyond the gas and oil burners proper and trim piping on those boilers 30 horsepower or more."

The fabrication clause did not cover construction contracts signed or bid on prior to the execution of the agreement.

The agreement provided for a fabrication committee, composed of an equal number of representatives of the Union and the Association, to apply, interpret and enforce the provisions of the fabrication clause.³ It provided that deadlocks were to be broken through arbitration.

This proceeding arose out of the efforts of the Union to secure compliance with the fabrication clause on three jobs — 3-M, Aircon and Upper Midwest Piping. A common question is presented as to each job: Is the fabrication clause a per se violation of § 8(e) of the National Labor Relations Act, 29 U.S.C.A. § 158 et seq.?⁴ The Board answered in the negative. We agree.

We stated in our earlier decision that the Supreme Court could be expected to set forth guidelines which would aid in answering the above question. The guidelines were forthcoming in the companion cases of National Woodwork Manufacturers Association v. National Labor Relations Board, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967), and Houston Insulation Contractors Association v. National Labor Relations Board, 386 U.S. 664, 87 S.Ct. 1278, 18 L.Ed.2d 389 (1967).⁵

In National Woodwork, a Carpenters Union and a Contractors Association had agreed that Union members would not handle doors which had been fitted prior to being furnished on the job. Prefitted doors were delivered to the job of a signator contractor. When the Union threatened not to hang the doors, the contractor agreed to substitute blank doors to be fitted by the carpenters on the job. The Union was charged with violating §§ 8(e) and 8(b) (4) (B) of the Act.⁶

The Board dismissed both allegations. The Supreme Court affirmed stating that a Union has a right to protect work "traditionally" done by its members at job sites by concerted activity directed towards a primary employer. The holding in National Woodwork was summarized in Houston as follows:

"* * * Collective activity by employees of the primary employer, the object of which is to affect the labor policies of that primary employer, and not engaged in for its effect elsewhere, is protected primary activity. * *"

Houston, 386 U.S. at 668, 87 S.Ct. at 1281.

Houston extended National Woodwork to a situation in which a local Union sought to preserve work opportunities of the members of another local but employed by the same employer. The Court said:

"A boycott cannot become secondary because engaged in by primary employees not directly affected by the dispute, or because only engaged in by some of the primary employees, and not the entire group. Since that situation does not involve the employer in a dispute not his own, his employees\' conduct in support of their fellow employees is not secondary and, therefore, not a violation of § 8(b) (4) (B)."

Houston, 386 U.S. at 669, 87 S.Ct. at 1281.

National Woodwork andHouston give support to the Board's decision in this case, but the petitioner argues that they are not controlling as the Union here is seeking to reacquire, as well as preserve, work. The petitioner urges that National Woodwork and Houston intended the term "traditional work" to encompass only that work which is currently, continuously and exclusively performed by unit employees. The petitioner relies on two statements in National Woodwork to support its position:

"We * * * have no occasion today to decide the questions which might arise where the workers carry on a boycott to reach out to monopolize jobs or acquire new job tasks when their own jobs are not threatened by the boycotted product."

National Woodwork, 386 U.S. at 630-631, 87 S.Ct. at 1261.

"* * * This, then, is not a case of a union seeking to restrict by contract or boycott an employer with respect to the product he uses, for the purpose of acquiring for its members work that had not previously been theirs."

National Woodwork, 386 U.S. at 648, 87 S.Ct. at 1270 (concurring opinion of Mr. Justice Harlan).

We reject the petitioner's contention. The record in National Woodwork demonstrates that the objective of the Union was to reacquire, as well as preserve, work. There, as here, reacquisition of work was involved.⁷ The trial examiner, whose findings were adopted by the Board, indicated that the use of blank doors may have been the exception rather than the rule:

"* * * The record shows that there have been occasions when millwork, including doors, came to a jobsite without having been previously cut out and fitted, that the tasks of cutting out and fitting such millwork, including doors, were considered by the contracting parties to be unit work to be performed by the job-site carpenters, and that the carpenters on the jobsite did in fact perform those tasks on those occasions. * * *"

Metropolitan District Council of Philadelphia and Vicinity of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Etc. Board Decision in National Woodwork, 149 N.L. R.B. No. 65, 656-57.

Neither of the statements cited by the Association support the view that traditional work is limited to work which is currently, continuously and exclusively performed by the unit members. Both statements refer to the possibility of acquiring new jobs or job tasks — jobs that had never been performed.

We express no opinion as to whether a fabrication clause can be enforced if the objective is to acquire work which unit employees had never performed or work which they may have performed in the past but have completely lost before the clause was negotiated.⁸ 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.

It follows from the teachings of National Woodwork that a union can protect this work by concerted activities where the objective is to affect the labor policies of the employer with whom they have a collective bargaining agreement.

The petitioner further argues that other sections of the Act,...