American Boiler Manufacturers Association v. NLRB

• Citation: 366 F.2d 815
• Decision Date: 06 October 1966
• Docket Number: 18200.,No. 18106,18106
• Parties: AMERICAN BOILER MANUFACTURERS ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and United Association Pipe Fitters Local Union 455 et al., Intervenors. UNITED ASSOCIATION PIPE FITTERS LOCAL UNION 455 et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

366 F.2d 815 (1966)

AMERICAN BOILER MANUFACTURERS ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and United Association Pipe Fitters Local Union 455 et al., Intervenors.

UNITED ASSOCIATION PIPE FITTERS LOCAL UNION 455 et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 18106, 18200.

United States Court of Appeals Eighth Circuit.

October 6, 1966.

COPYRIGHT MATERIAL OMITTED

Kenneth C. McGuiness, of Vedder, Price, Kaufman & Kammholz & McGuiness, Washington, D. C., for American Boiler Mfgrs. Ass'n. Stanley R. Strauss, Washington, D. C., and Moller, Talent & Kuelthau, St. Louis, Mo., were with him on the brief.

Donald J. Capuano, of O'Donoghue & O'Donoghue, Washington, D. C., for United Ass'n. Pipefitters Local Union 455. Martin F. O'Donoghue, Washington, D. C., was with him on the briefs.

Louis Sherman and Charles R. Donnenfeld, of Sherman & Dunn, Washington, D. C., filed brief for Building & Construction Trades Dept. AFL-CIO.

Lambert H. Miller, Gen. Counsel, Edward R. Duffy, Associate Gen. Counsel, and Fred B. Haught, Asst. Counsel, Washington, D. C., filed brief for National Assn. of Mfgrs. of United States.

John H. Pratt, Gerard D. Reilly and Lawrence T. Zimmerman, Washington, D. C., filed brief for Air-Conditioning & Refrigeration Institute and Mechanical Contractors Assn., etc. as amici curiae.

Gary Green, Atty., N. L. R. B., for respondent. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost and Norton J. Come, Asst. Gen. Counsel, and Michael R. Brown, Atty., for N. L. R. B., Washington, D. C., were with him on the brief.

Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and HARPER, District Judge.

VAN OOSTERHOUT, Circuit Judge.

Case No. 18,106 is before us upon petition of American Boiler Manufacturers Association (ABMA) pursuant to § 10(f) of the National Labor Relations Act as amended, 29 U.S.C.A. § 151 et seq., to review the decision and order of the National Labor Relations Board filed August 5, 1965, and published at 154 NLRB No. 12. The unfair labor practices charged occurred in St. Paul, Minnesota, within this circuit. Hence, this court has jurisdiction.

In Case No. 18,200, United Association Pipe Fitters Local Union 455, etc., Union 455 seeks a review of the portion of the Board's order adverse to it. The Board by cross-petition seeks enforcement of such portion of its order.¹

Upon charges filed by ABMA, the General Counsel filed a complaint with the Board alleging that Local 455² and the St. Paul Association of Plumbing, Heating and Mechanical Contractors, Inc., hereinafter called Association, had engaged in unfair labor practices affecting commerce in violation of § 8(b) (4) (ii) (A) and (B)³ of the Act and § 8(e) of the Act.

Important questions relating to the interpretation of § 8(b) (4) (ii) (A) and (B) and § 8(e) are here presented. Amicus Curiae briefs in support of ABMA's position have been filed by National Association of Manufacturers and by Air-Conditioning and Refrigeration Institute, Mechanical Contractors Association of America, Inc., and Associated General Contractors of America. The Board's decision is supported by briefs filed by its General Counsel, by respondent Local 455, and by Amicus Curiae brief of Building and Construction Trades Department, AFL-CIO.

Our case No. 18,107 involved similar cases arising in Minneapolis and we have granted petitions of parties in that case for leave to intervene in this case.

The legal issues here presented arise out of efforts of Local 455 to prohibit the installation of packaged boilers in the St. Paul territory. A packaged boiler is a complete steam generating unit. It comprises a heat exchanger, a source of heat, a source of combustion air, operating controls, and safety controls. The packaged boiler is manufactured in factories by assembly line methods. All fuel piping, trim piping and controls are attached at the factory and the completed unit is tested and warranted against defects, which warranty may be voided if any parts are removed. It bears an underwriter's laboratory seal which means it conforms to specified standards. It is shipped for installation at the job site, ready for installation without further fabrication.

Packaged boilers were first introduced and used in the St. Paul area some twenty-five years ago. By the mid-1950s, some 10% of the boilers installed were packaged boilers. Since then their use has increased rapidly and there is substantial evidence that by 1963 60% to 85% of all boiler installations in the St. Paul area were packaged boilers.

Local 455 is a union representing approximately 500 craftsmen in the St. Paul area claiming jurisdiction over the installation of all plumbing and pipe fitting systems in the area, including trim piping and exterior boiler equipment.

Association is composed of 44 plumbing, heating and mechanical contractors in the St. Paul area. It negotiates collective bargaining agreements with Local 455. Most non-member contractors also usually sign any agreement arrived at.

Prior to the use of packaged boilers, trim pipe and other component parts here in controversy were shipped separately and assembled by Local 455 members. The advent of packaged boilers thus resulted in a decrease of work at the job site for Local 455 members. There is evidence that the work here claimed would take two men about two days upon each job.

In 1959 and 1961 negotiations, the Union tried unsuccessfully to obtain a fabrication clause in their contract. In the 1963 contract they obtained a fabrication clause, which reads in pertinent part:

"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 Employer within the bargaining unit who is bound by this agreement, except as otherwise mutually agreed upon with relation to any particular job."

The contract also established a fabrication committee composed of representatives of the Union and Association, which committee was to apply, interpret and enforce the fabrication clause. The present controversy arises out of efforts to enforce the fabrication clause on three projects, to wit, Minnesota Mining & Manufacturing (3-M), Aircon, and Upper Midwest Piping. The facts are fully outlined in the Trial Examiner's report and the briefs and will not be set out in detail here. The Trial Examiner, upon the basis of a full evidentiary hearing, substantial evidence and credibility findings as outlined in his report, determined:

"4. By entering into and maintaining an agreement containing a fabrication clause which, as interpreted, construed and applied, requires that packaged boilers prefabricated at plants by employees of employer-manufacturers may be used or installed in construction on the project jobsite only if external piping, controls and attachments of the packaged boiler are fabrication at the jobsite by members of Respondent Local 455, Respondent Local 455 and Respondent St. Paul Association of Plumbing, Heating and Mechanical Contractors, Inc., its Member-Contractors and Respondent Upper Midwest Piping, Incorporated, engaged in unfair labor practices within the meaning of Section 8(e) of the Act.

5. By threatening, coercing and restraining Minnesota Mining & Manufacturing Company with an object of forcing or requiring said Company to enter into agreement prohibited by Section 8(e), and to cease using, selling, handling or otherwise dealing in the products of, or doing business with, Orr & Sembower, Inc., the Respondent Local 455 engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b) (4) (ii) (A) and (B) of the Act.

6. By threatening, coercing and restraining D. W. Hickey, Co., Inc., with an object of forcing or requiring said Company to enter into an agreement prohibited by Section 8(e), and to cease using, selling, handling or otherwise dealing in the products of, or doing business with, Orr & Sembower, Inc., and Minnesota Mining and Manufacturing Company, the Respondent Local 455 engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b) (4) (ii) (A) and (B) of the Act.

7. By threatening, coercing and restraining Pierre Aircon Company with an object of forcing or requiring said Company to enter into an agreement prohibited by Section 8(e), and to cease using, selling, handling or otherwise dealing in the products of, or doing business with, Orr & Sembower, Inc., the Respondent Local 455 engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b) (4) (ii) (A) and (B) of the Act.

8. By threatening, coercing and restraining Upper Midwest Piping, Incorporated with an object of forcing or requiring said Company to enter into an agreement prohibited by Section 8(e), and to cease using, selling, handling or otherwise dealing in the products of, or doing business with, Cleaver-Brooks Company and The Heinen Company, its representative, the Respondent Local 455, has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b) (4) (ii) (A) and (B) of the Act."

The Board disagreed with the Examiner's findings and conclusions in almost all respects. It held that none of the parties had violated § 8(e) or § 8(b) (4) (ii) (A) of the Act. It upheld that Examiner's determination that Local 455 had violated § 8(b) (4) (ii) (B) of the Act by reason of threats made to 3-M and Hickey, 3-M's heating contractor, with the object of forcing Hickey to cease doing business with 3-M and 3-M to cease doing business with the makers of the packaged boilers it had purchased. The § 8(b) (4) (ii) (B) violation is the subject matter of the cross-appeal hereinafter considered.

Case No. 18,106. ABMA's...