# Local Union No. 98 of the Sheet Metal Workers' International Ass'n v. National Labor Relations Board

> Court of Appeals for the D.C. Circuit · June 18, 1970 · 433 F.2d 1189

URL: https://www.frixlaw.com/law-library/cases/8884008

## Case

- **Full name:** LOCAL UNION NO. 98 OF the SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION and its Agents Malcolm Hamilton, Jr., and Lincoln Baird v. NATIONAL LABOR RELATIONS BOARD, Cincinnati Sheet Metal and Roofing Company, Intervenor
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** June 18, 1970
- **Citations:** 433 F.2d 1189
- **Precedential status:** Published
- **Opinion:** Dissent by Wright
- **Judges:** Maekinnon, Tamm, Wright
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

J. SKELLY WRIGHT, Circuit Judge
(dissenting):
This case raises serious and difficult questions about the extent of the National Labor Relations Act’s prohibition 1 against “secondary” activity by unions. In my judgment, and with deference, neither the majority opinion nor the National Labor Relations Board has provided adequate analysis of two problems: (1) the appropriate unit to be considered in drawing the line between permissible primary activity and proscribed secondary activity; and (2) what work is “fairly claimable” by unit employees. The present record does not afford an adequate basis on which to decide these issues in this case, and, accordingly, I would remand the case to the Board for further proceedings.
Local Union No. 98 has about 1,700 members and territorial jurisdiction in southeastern Ohio and Kentucky comprising about 65 counties. It negotiates collective bargaining agreements with several multi-employer associations of contractors engaged in the sheet metal and air conditioning business. On June *1198 7, 1967, Local 98 entered into an agreement with the Sheet Metal Contractors of Southern Ohio. The employers here, Standard Sheet Metal, Inc. and C. S. Veach, Inc., are signatories to the multi-employer agreement. 2 Clauses in the Southern Ohio contract prohibited employers from purchasing certain pipe and adjustable elbows unless the workers who made them were paid wages at least as high as the Southern Ohio workers. 3 The union refused to permit the employers to install Ajax Company pipes and elbows because Ajax’s workers, although members of a sister union local, were not paid wages equivalent to those of Local 98. These clauses, and union enforcement of them, produced the current charges of violation of Sections 8(e) and 8(b) (4) of the Act.
I
The Supreme Court has authoritatively delineated the line between permissible primary activity and proscribed secondary activity in National Woodwork Manufacturers Ass’n v. N.L.R.B., 886 U.S. 612 , 87 S.Ct. 1250 , 18 L.Ed.2d 357 (1967), and Houston Insulation Contractors Ass’n v. N.L.R.B., 386 U.S. 664 , 87 S.Ct. 1278 , 18 L.Ed.2d 389 (1967). Earlier, we had formulated an almost identical dividing line. Meat & Highway Drivers, Dockmen, etc., Local 710 v. N.L.R.B., 118 U.S.App.D.C. 287 , 335 F.2d 709 (1964); Truck Drivers Union Local No. 413 v. N.L.R.B., 118 U.S.App.D.C. 149 , 334 F.2d 539 , cert. denied, 379 U.S. 916 , 85 S.Ct. 264 , 13 L.Ed.2d 186 (1964); Orange Belt District Council of Painters No. 48 v. N.L.R.B., 117 U.S.App.D.C. 233 , 328 F.2d 534 (1964). See also Lewis v. N.L.R.B., 122 U.S.App.D.C. 18 , 350 F.2d 801 (1965).
Broadly speaking, the primary-secondary division depends upon “whether, under all the surrounding circumstances, the Union’s objective was preservation of work for [the unit’s] employees, or whether the agreements and boycott were tactically calculated to satisfy union objectives elsewhere. * * * The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer vis-d-vis his own employees,” National Woodwork, supra, 386 U.S. at 644-645, 87 S.Ct. at 1268-1269 (emphasis added, footnotes omitted), in a legitimate attempt to prevent “encroachments on the [unit] work of the contract unit employees * * * ” Id. at 617-618, 87 S.Ct. at 1254. We have phrased the test as whether the agreement and activity directly involve “jobs fairly claimable by the bargaining unit,” 4 whether they *1199 seek to preserve those jobs for the bargaining unit, 5 and whether they are “germane to the economic integrity of the principal work unit.” 6 In applying these criteria to “work standards” clauses, we have indicated that such clauses are “legitimate attempts by the union to protect and preserve the work and standards it has bargained for.” 7
The clause involved in the present case is, on its face, a union standards clause similar to those we have approved in other cases. It simply requires a contractor who chooses to purchase specified material rather than manufacture it himself to purchase it from employers who pay their employees wages at least equivalent to Local 98’s wages. This type of clause may reasonably attempt to remove the economic incentive to the employer for contracting work out or buying prefabricated items and thus to preserve the work for the contracting employees. Indeed, the majority here does not disapprove such clauses. Rather the majority disapproves the present union standards clause as “secondary” because the fabricating work involved was not fairly claimable by Standard’s and Veach’s employees at the construction sites involved.
II. THE RELEVANT UNIT
Primary-secondary analysis hinges on a determination of the employee group which the work preservation agreement may legally protect. Unless the relevant unit of employees is clearly established, it is impossible to decide whether a specific job has been customarily or traditionally done by them, or whether it is fairly claimable by them. Yet neither the majority nor the Board has analyzed what the appropriate “unit” is in the present case.
In considering this question, it is appropriate to emphasize the function which work preservation agreements serve. They allow employer and employee to bargain and mutually determine the extent to which work, necessary to the employer’s business, is performed by his employees or is performed by others. Thus the Supreme Court has held that work preservation clauses are mandatory subjects of collective bargaining, 8 and, in National Woodwork, supra, that such clauses, assuming their scope is proper, may legally be enforced. It follows that the appropriate focus of work preservation agreements ought generally to be upon all employees in the bargaining unit. The union, bargaining on behalf of the unit’s employees, may negotiate work preservation agreements which affect the unit in whole or in part.
In Houston Insulation, supra, the Supreme Court addressed one aspect of this “unit” problem. In that case, Armstrong Company had signed an agreement with one union local providing that the cutting and mitering of certain fittings be done in Armstrong’s Houston shop. When Armstrong purchased prefabricated fittings, Armstrong’s job site workers, the members of a sister local and not part of the same bargaining unit, refused to install the prefabricated materials. The Court held the union refusal was “primary” activity:
“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 * * *.”
386 U.S. at 669, 87 S.Ct. at 1281.
Where the employer is a member of a multi-employer bargaining association, it follows that the “primary” employees *1200 are all the workers in the bargaining unit — all the employees of all the employers in the employers’ association. In such a case, a boycott would not be secondary if engaged in by the employees of one employer to preserve work for the employees of another employer member of the multi-employer bargaining unit. This result would be particularly important and appropriate in an industry where workers shift jobs and employers frequently, and all have a strong interest in maintaining these job opportunities. Moreover, under Houston Insulation, the employer would not be involved “in a dispute not his own” since, as a member of the multi-employer bargaining unit, he is a direct party to the contract. In my view, the appropriate group of employees which a work preservation clause ought to protect will almost always be coextensive with the bargaining unit. 9
In Lewis v. N.L.R.B., supra, this court pointed out the critical need' to determine the proper unit in order to assess whether a union standards clause violated Section 8(e) of the Act. In fact, that case is quite similar in that respect
to the present one. That case involved the coal industry which, like the Ohio construction industry, has a number of multi-employer bargaining units. The court noted that, for the purpose of primary-secondary analysis, it was theoretically possible to focus on employees of each individual employer, or on the employees of all employers in each multiemployer bargaining unit. On remand, the Board decided that the appropriate unit is the multi-employer bargaining unit. 10 Indeed, in the present case the trial examiner’s decision, adopted by the Board, seems at times to assume, though none too clearly, that the relevant unit is indeed the multi-employer bargaining unit. 11
In the present case, the relevant unit encompassed all the employees of the members of the multi-employer association, whether employed on site or off site, and whether employed in connection with the construction projects involved in the current dispute or on other projects. “[T]he concept of primary activity easily includes a boycott or strike by jobsite workers to protect the work of *1201 offsite members within the same unit.” 12 The present record reflects little or nothing about the off site operations of Standard or Veach or about the operations of the other members of the Southern Ohio association. 13 We do not know the degree to which union personnel frequently interchanged jobs, or the degree to which a decline in any local manufacturing would adversely affect bargaining unit jobs. None of this information appears in the record; in fact, we know nothing at all about the other signatories to the Southern Ohio agreement. I think this information is necessary to any determination of what work Local 98 could legitimately seek to preserve for its members.
III. “FAIRLY CLAIMABLE” UNIT WORK
As I have indicated above, the main error made by the Board and the majority here in determining what work could properly be “preserved” by Local 98 for its members was the failure to focus clearly upon the multi-employer unit. But I am also troubled by the Board’s and the majority opinion’s approach to determining what work may be preserved by unit employees. 14 We have characterized the relevant test as work that is “fairly claimable” by unit employees. 15 To apply this test properly requires attention to more than what work specific employees have, as a matter of historical fact, performed. As the Supreme Court itself noted, the decision as to what work is “fairly claimable” by unit employees should be informed by “the remoteness of the threat of displacement by the banned product or services, the history of labor relations between the union and the employers who would be boycotted, and the economic personality of the industry.” National Woodwork, supra, 386 U.S. at 644 n.38, 87 S.Ct. at 1268. It seems clear that the Court did not intend the Board or the courts to focus exclusively upon the issue whether the work in question was “traditionally or customarily” performed by unit employees.
In my judgment, the Board must carefully analyze in each case whether the unit has a fair claim on the work in question. Such a claim must be appraised in light of the employees’ interests in full utilization of their skills, both quantitatively and qualitatively. This analysis should, at a minimum, include careful analysis of the three factors listed by the Supreme Court. In addition, I would urge careful attention to whether the workers’ training equipped them to perform the tasks in question, since employees have a strong interest in utilizing all their skills as well as in maintaining full employment. In addition, I think the Board must take note of the state of technological change occurring in an industry. If the bargaining unit moves into new areas of production, or if technological change produces new jobs within the union’s jurisdiction, I see no reason to preclude union-management negotiation over the extent to which those jobs would be “preserved” for the employer’s own employees. Cf. American Boiler Manufacturers Ass’n v. N.L.R.B., 8 Cir., 404 F.2d 547, 551 (1968); Meat & Highway Drivers, Dockmen, etc., Local 710 v. N.L.R.B., supra, 118 U.S.App.D.C. at 291-292 , 335 F.2d at 713-714 .
In the present case the Board and the majority opinion focus almost exclusively upon the question whether the job *1202 site employees of Veach and Standard “customarily and traditionally” performed the fabricating work in question. Since I believe this analysis applies a too restrictive formula to the wrong unit of employees, I cannot approve the Board’s action on the present state of the record.
I respectfully dissent.
. 29 U.S.C. § 158 (b) (4) and (e) (1964).
. Standard is apparently a member of the Sheet Metal Contractors of Southern Ohio and as such signed the collective bargaining agreement on June 7 along with the other members of the employers’ association. Veach, however, does not appear to be a member of this association, and the record indicates that Veach ordinarily operates out of Lexington, Kentucky. When Veach began work as a contractor on a project in Wellston, Ohio, however, it signed the Southern Ohio agreement and paid its workers according to the Southern Ohio wage scale. The record does not indicate whether the workers employed by Veach were its employees from Lexington, Kentucky, or whether Veach hired local southern Ohio workers for the Wellston project.
The record reflects that, in addition to Standard, there were three other members of the Sheet Metal Contractors of Southern Ohio: Brush Electric Company, Inc., Homer Hoover, and H. T. Boggs Company, Inc.
. The majority opinion incorrectly states that Local 98 sought to limit the pipes and elbows used to “those produced at the job site by employees working at the ‘construction rate’ * * (Emphasis added.) Testimony by union officials indicated that Local 98 would accept materials produced or manufactured anywhere ; Local 98 only sought to require that the products used were made by workers who were paid wages at least equivalent to Local 98’s wages. In fact, in the present case, Local 98’s members eventually installed pipes and elbows made off the job site at a Columbus, Ohio plant where workers were paid an appropriate wage scale.
. Meat & Highway Drivers, Dockmen, etc., Local 710 v. N.L.R.B., 118 U.S.App.D.C. 287, 291 , 335 F.2d 709 , 713 (1964).
. Ibid.
. District No. 9, International Ass’n of Machinists v. N.L.R.B., 114 U.S.App.D.C. 287, 290 , 315 F.2d 33, 36 (1962).
. Retail Clerks Union Local 770 v. N.L.R.B., 111 U.S.App.D.C. 246 , 252, 296 F.2d 368 , 374 (1961).
. Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203 , 85 S.Ct. 398 , 13 L.Ed.2d 233 (1964).
. It seems impossible to make any sense out of a limitation to a smaller unit than the one which the collective bargaining agreement covers. When employers join together in a multi-employer bargaining group, they do so to strengthen all the employers; and the multi-employer unit acts and bargains to further the interests of all the participating employers. Similarly, the union bargains for the rights of all the workers employed by all the employers. And particularly in an industry like the construction industry where workers move frequently from job to job and employer to employer, all the workers’ interests relate even more directly to the employment practices of all the employers. The Supreme Court has approved multiemployer bargaining and has found evidence of congressional approval:
“The debates over the proposals [to outlaw multi-employer bargaining] demonstrate that Congress refused to interfere with such bargaining because there was cogent evidence that in many industries the multi-employer bargaining basis was a vital factor in the effectuation of the national policy of promoting labor peace through strengthened collective bargaining. * * *”
N.L.R.B. v. Truck Drivers Local Union No. 449 [Buffalo Linen], 353 U.S. 87, 95 , 77 S.Ct. 643, 647 , 1 L.Ed.2d 676 (1957). See also N.L.R.B. v. Brown, 380 U.S. 278 , 85 S.Ct. 980 , 13 L.Ed.2d 839 (1965).
It may be that in certain cases an “area” concept would be appropriate for primary-secondary analysis. In the present case, Veach was not a member of the multi-employer bargaining unit. Instead the company signed the unit’s contract when the company began work in Local 98’s territory. Cf. N.L.R.B. v. Local Union No. 28, Sheet Metal Workers’ Int. Ass’n, 2 Cir., 380 F.2d 827 (1967).
. W. A. Boyle et al., 179 NLRB No. 80 (November 9, 1969).
. Compare “The credited evidence in this record is most conclusive in showing that the employer members of the Sheet Metal Contractors — including Veach and Standard — normally and regularly purchase [the elbows and pipe] from mass production manufacturers,” J.A. 109, with “the objectives of the [union] must also be preservation of work for the employees of Standard and Veach- — employees of the Employer on whom pressure is being applied.” J.A. 112.
. Note, Secondary Boycotts and Work Preservation, 77 Yale L.J. 1401 , 1412 (1968).
. As the majority points out, “some larger contractors manufactured these supplies, both for their own use and for sale to smaller contractors.” Thus it appears, although the record is far from clear on this point, that the Sheet Metal Contractors of Southern Ohio, the multi-employer bargaining unit which negotiated the contract here at issue, included employers who manufactured the relevant supplies. Thus some members of Local 98, included in the bargaining unit covered by the present contract, may have made the relevant supplies.
. See generally Note, supra Note 12.
. See Note 4, supra.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8884008. Public record. Not legal advice.