521 F.2d 885 (C.A.D.C.)

its principal office and place of business in Roselle, New Jersey. Austin engaged in providing and performing engineering, general contracting and related services in various states of the United States including New Jersey and New York.

Hudik-Ross Co., Inc. (hereafter Hudik), the heating and air-conditioning subcontractor, was a New York Corporation with its principal office and place of business in New York City. It engaged in providing heating, ventilation, air

con

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ditioning and related services at various construction jobsites in New York state. The Enterprise Association, Local Union No. 638 (Hereafter the Union, also the Steamfitters), affiliated with the International Plumbing and Pipefitters Union, AFL-CIO, operated in New York City and is a labor organization as defined by section 2(5) of the Labor-Management Relations Act.

Austin was designated general contractor and engineer for the construction of the Norwegian Home in New York City. In that capacity, Austin prepared the engineering job specifications, employed directly certain Union construction workers, and subcontracted the electrical, plumbing, heating, ventilation and air-conditioning work to various subcontractors.

The building specifications were dated November 29, 1971. With respect to the heating and air-conditioning units they provided:

"Furnish at the jobsite Slant/Fin Climate Command Air Conditioners. The unit shall be complete with cabinets, filters, cooling chasis, heating coil fans, main water flow and condensate assembly . . .

"The main flow and condensate assembly shall be factory installed as an integral part of the unit by the manufacturer

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"Manufacturer shall furnish a written guarantee for a period of one year after completion of installation.

. . .

521 F.2d 885 (C.A.D.C.)

(J.A.233). (Emphasis added). These specifications required the subcontractor (Hudik) to install air-conditioning units as manufactured by Slant/Fin complete with the factory installed "waterflow and condensate assembly," I.e., with internal prepiped waterflow and condensate assemblies. With this prepiping, the equipment would be guaranteed by the manufacturer for one year.

Hudik received the subcontract for the heating, ventilating and air-conditioning work as the result of competitive bidding and on January 14, 1972, entered into the subcontract with Austin to install the heating and air conditioning in the building according to the specifications. The Administrative Law Judge found that Hudik was aware of the above quoted specifications prior to bidding.5 Hudik had been a union contractor in New York City for many years and its collective bargaining contract with the Union provided for compliance with the following rule:

Radiator branches, convector branches and coil connections shall be cut and threaded by hand on the job in accordance with Rule V.

(J.A. 213). The Union contends that Rule IX required Hudik to assign to its members on the jobsite the work of cutting and threading certain "internal piping" in the airconditioning units. But the building specifications with which Hudik was obligated to comply required the installation of the completed units as delivered by Slant/Fin with their internal piping for main waterflow and condensate assembly already assembled by the manufacturer. The subcontract called for the installation of 114 air-conditioning units at a total cost of $51,000 (J.A. 192).

On June 22, 1972, the air-conditioning units arrived at the jobsite and were unloaded. Hudik's job foreman contacted Daly, the Union's business agent, and the two men

SJ.A. 214.

521 F.2d 885 (C.A.D.C.)

proceeded to inspect the units. The next day, Daly told Austin's project superintendent that members of

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the steamfitters' union "would not install the Slant/Fin units because the piping inside the units was steamfitters' work and that Rule IX of their contract with Hudik called for them to do the inside piping work on site" (J.A. 235, emphasis added). Daly conveyed the same message to the Hudik superintendent and to Frank Hudik. Hudik point out to Daly that the units had been preassembled and pretested at the factory and that the building specifications called for installation of the complete Slant/Fin units."

Nevertheless, because the internal piping had been done at the factory, the Union refused to install the Slant/Fin units, and as a consequence held up completion of the building. Austin filed an unfair labor practice charge against the Union alleging that it was engaged in an illegal secondary boycott prohibited by section 8(b)(4)(B). The Union had never met with Slant/Fin and there was no evidence that the Union had ever tried to organize Slant/ Fin's employees.

There was testimony that on other jobs the Union had fitted pipe on similar American Standard air-conditioning units on the jobsite, but a witness for the pipefitters pointed out that those units did not have the bypass arrangement or condenser contained in the Slant/Fin equipment. (J. A. 151–155). The engineering sketch of the manufactured units, see Figure 1 (J. A. 196, 224, 225), indicates that the work the local Union claimed included a number of integrated and necessary internal parts of the complete airconditioning unit produced and guaranteed by Slant/Fin. The disputed work was substantially more than just cutting and threading the pipe to connect the air-conditioning units to the basic piping that ran throughout the building. It included connecting up two valves and a condenser (J. A. 196, 224, 225)-in other words, the Union sought to perform final assembly tasks on internal parts of the air-conditioning units. See Figure 1. To comply with

"The complete units were factory prepiped, tested and guaranteed by Slant/Fin, the manufacturer. J.A. 233, 235.

Figure 1. At the hearing before the ALJ, Robert Grand, District Superintendent for Austin, drew circles around internal piping at either end of a diagram of the Slant/Fin unit to indicate the location of the "main water flow and condensate assembly piping." (J.A. 78-79). Subsequent witnesses testified that this piping was guaranteed to the Union by Rule IX and was the source of the dispute between Enterprise and Hudik. (J. A. 122, 130, 167-69). Frank Hudik drew "x's" on the diagram at both ends of the unit to indicate the location of piping necessary for installation of the completed Slant/Fin assembly. (J.A. 123-24).

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the demand that the local Union perform that internal work would require the unit to be dismantled, the assembly surrounding the two valves and the condenser to be taken apart, and local workmen to reconstruct the internal piping, fit new pipe to the valves and condenser, connect them and then reassemble the complete unit. Whether the manufacturer would be expected to furnish the valves and the condenser was not stated.

B. The Decision of the Administrative Law Judge

The finding critical to this appeal in the decision by the ALJ stated:

"3. By inducing and encouraging individuals employed by Hudik to engage in a strike and in a refusal in the course of their employment to handle and work upon factory piped heating and cooling units manufactured by Slant/Fin, which Hudik was required by its contract with Austin to install in the Norwegian Home being constructed by Aus

521 F.2d 885 (C.A.D.C.)

tin as engineer and general contractor, and by coercing and restraining Hudik, and object thereof being to force or require Hudik to cease using factory piped heating and cooling units and cease doing business with Austin and Slant/Fin, Respondent had engaged and is engaging in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act."

(J. A. 243). In his opinion the ALJ analyzed the facts and set forth his reasoning in considerable detail, and as re

"The decision of the ALJ stated another possible ground for decision: that he interpreted Rule IX to refer only to "pipe within Hudik's control and which could be cut on the job." The ALJ explicitly declined to rely on this conclusion in hes ruling. J. A. 237. See also Rule IX at p. 4 supra, and for text of the decision of the ALJ on this point see text at p. 24 infra. Hudik raised the same point initially with the Union agent (Daly) when the issue first arose:

"Q. Did you tell Mr. Daly that Rule 9 did not apply to this unit because of the nature of its construction? "A. (Hudik) Yes.

"Q. Did you say that was so because the work had been pre-assembled in Slant/Fin's factory?

"A. Yes.

"Q. That was the reason why you told Mr. Daly that, because it had been pre-assembled in the Slant/Fin factory? "A. Pre-assembled and pretested.

"Q. In the Slant/Fin factory?

"A. Correct."

J.A. 167-68.

"In the instant situation, since Hudik is neither the manufacturer of prepiped units (Slant/Fin) nor is it the engineer and general contractor (Austin) who specified the use of particular prepiped units, it is apparent that the Union's dispute or problem is with Slant/Fin and Austin. Enforcing a union contract with Hudik to prevent Hudik's installing prepiped units that were neither manufactured nor specified by Hudik is simply a use of Hudik as an instrumentality or means of exerting pressure against Slant/Fin and Austin. The Union's real problem and dispute is with the manufacturer of prepiped units and the engineer who specifies that such units are to be used. That Hudik is only a means or instrumentality for exerting pressure against Slant/Fin and Austin with whom the Union has its primary dispute, will appear if we consider two possible situations.

"Example A is where Hudik or similar union subcontractor is invited to bid on a job where prepiped units are to be installed. The Union reminds Hudik of the terms of the union contract requiring on the job piping. Hudik therefore does not bid and does not get the job, or if he does bid and obtains the subcontract, his union employees refuse to install the prepiped units. The construction site, however, in Example A, is in an area where the engineer and general contractor are then able and willing to secure a non-union subcontractor or a subcontractor employing members of a union who are not adverse to installing prepiped units. The job is therefore completed without Hudik and his employees. Assume that this pattern is repeated on other jobs in the area and with the same results. It is clear therefore that in Example A, the Union's problem and dispute is not with Hudik since Hudik, despite voluntary or involuntary compliance with the union contract, is an ineffective means or instrumentality "under all the surrounding circumstances" for exerting pressure against the manufacturer of prepiped units or the engineer specifying their use. The Union's problem or dispute is with the last two mentioned parties, not with Hudik. Union enforcement of the Union-Hudik contract in Example A does not preserve work for the Union but serves to deprive Hudik and its employees of work. The Union does not exist as an organization whose purpose is to deprive its members of work. It is apparent that the Union's dispute is not with Hudik but that it is with the manufacturer and the party specifying prepiped units.

"Example B is of course the instant case. The sole difference between A and B is that in the instant case, B, Hudik is an effective means or instrumentality for exerting the economic pressure of the Union against Slant/Fin, the manufacturer, and Austin, the engineer. In Example A Hudik was an ineffective means or instrumentality against the manufacturer and the engineer. The reason for the difference between being an effective or ineffective instrumentality for pressure in the two examples is revealed by considering all the surrounding circumstances. In the instant case, the matter occurs in New York City, where the construction site is in an area where there are no nonunion steamfitters available or no nonunion mechanical contractors; or, if either of the nonunion categories exist, neither Austin, the union general contractor and engineer, nor Hudik, the union subcontractor could or would see them. That is the reason why the union steamfitters, employees of Hudik, by refusing to install Slant/Fin [units] specicied by Ausitn, are able to use Hudik as an effective means or instrumentality for exerting pressure against Slant/Fin and Austin. The true "culprits" and the parties with whom the Union has its dispute are Slant/Fin, who manufactures prepiped units, and Austin, who specified such units as the heating and cooling units for installation in the Norwegian Home. If prepaid units cannot be installed in the large commercial, public, and industrial buildings in the New York area or in other areas effectively organized by the Union and other building trades union, the manufacture[r] will be materially affected and Austin and other engineers and general