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August 16, 1962.

John J. CUNEO, Regional Director, etc., National Labor Relations Board, Petitioner,

The opinion of the court was delivered by: WORTENDYKE

WORTENDYKE, District Judge.

 Carpenters is a labor organization engaged within this District in transacting business and protecting the interests of its employee-members, and of employee-members of affiliated and constituent labor organizations. Association is a membership corporation, representing the interests of and acting as bargaining agent for certain construction contractors doing business in this District.

 Commencing in April, and continuing into July 1962, Association and Council negotiated between themselves for a collective bargaining agreement to replace a similar agreement between the parties which by its terms expired May 31, 1962. That previous agreement contained a clause which Carpenters demanded should be included in the new collective bargaining agreement under negotiation, but Association refused to consent to such inclusion. The language of the clause in question, which constitutes a part of Article 18.1 of the old contract, is as follows:

 "* * * No cessation of work shall take place for any reason except for non-union condition or failure to make required payments to the Pension Plan and/or Welfare Fund. A non-union condition shall prevail when employees are employed without a collective bargaining agreement on any construction work which is normally performed by employees working under a collective bargaining agreement with a Union affiliated with the Building Trades Department of the AFL-CIO.In such event it shall not be deemed a violation of this Agreement for employees hereunder to individually refuse to work on the job site where such non-union condition exists. To the extent legal, the Union may request employees hereunder to leave such job."

 All demands of the respective negotiators, except this demand of Council for the inclusion of the foregoing quoted language in the new contract were amicably resolved. The strike which commenced on July 23, 1962 was called because of the Association's refusal to agree to such inclusion, and the consequent failure of a collective bargaining agreement to come into existence.

 The Petitioner contends, and the complaint of the charging party to the Board alleges that the calling and maintenance of the strike constitutes an unfair labor practice in violation of 29 U.S.C.A. § 158(b)(4)(i)(ii)(A). The pertinent language of the Act relied upon by the petitioner is as follows:

 Section 158 "(b) It shall be an unfair labor practice for a labor organization or its agents - * * *

 * * *

 "(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in * * * an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to * * * perform any services; or (ii) to threaten, coerce, or restrain any person engaged in * * * an industry affecting commerce, where in either case an object thereof is - (A) forcing or requiring any employer * * * to enter into any agreement which is prohibited by section [158] (e) of this section; * * *.

 * * *

 Section 158 "(e) It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement * * * whereby such employer ceases or refrains, or agrees to cease * * * doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void; Provided, that nothing in this subsection (e) shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting or repair of a building, structure, or other work: * * * Provided further, That nothing in this Act shall prohibit the enforcement of any agreement which is within the foregoing exception."

 It is further the contention of the Petitioner that the construction industry proviso contained in the foregoing quoted language of the Act merely exempts from the ban of the section entering into an agreement of the type specified in the proviso but does not exempt conduct of unions in the construction industry which is proscribed by the provisions of section 8(d)(4)(A) of the Act (as the third proviso under section 8(e) (which is deleted from the above quotation) does for the unions in the garment industry). Petitioner says that "the proviso merely saves from the ban of section 8(e) limited voluntary agreements restricting the business relations of employers in the construction industry." In sum, Petitioner argues that the unfair labor practice of which the charging party complains consists in the calling of a strike as a means of enforcing the inclusion of the questioned clause in the new agreement.

 From the evidence presented before me, I make the following findings of fact:

 1. The Respondent, The Essex County and Vicinity District Council of Carpenters and Millwrights of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization as defined in section 2(5) of the National Labor Relations Act, 29 U.S.C.A. § 152(5).

 2. The complainant before the Board, Associated Contractors of Essex County, Inc. is an employer as defined by section 2(2) of the Act.

 3. Council has acted and is authorized to act in behalf of employees (as defined by section 2(3) of the Act) of members of Association within the area generally comprising Essex County, New Jersey, in conducting collective bargaining negotiations, and entering into and performing collective bargaining agreements with Association.

 4.Association has conducted and is authorized to conduct, in behalf of its members, who are employers engaged in industry affecting commerce and operating within the Essex County, New Jersey area, collective bargaining negotiations with Council, and the execution and performance of collective bargaining agreements with Council relating to the employment of members of Council in building construction and other related operations conducted by members of Association.

 5. Members of Association maintain their places of business and conduct their operations within this District. They purchased goods and materials from outside of the State of New Jersey for use in construction projects within the State valued in excess of $50,000 during 1961, and during the same period performed services and supplied materials outside of the State of New Jersey in excess of a million dollars in value.

 7. Included among the provisions of the foregoing contract was Article XVIII, containing provisions in section 1 thereof as quoted supra (page 2 of this opinion). ...

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