General Teamsters, Local 982

National Labor Relations Board - Board Decisions

Mar 5, 1970

181 N.L.R.B. 515 (N.L.R.B. 1970)

GENERAL TEAMSTERS, LOCAL 982 515
General Teamsters , Chauffeurs , Warehousemen and
Helpers, Local 982, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America (J. K. Barker Trucking Co.
and Guy F. Atkinson Construction Co.) and
Associated Independent Owner-Operators, Inc.
'General Teamsters , Chauffeurs , Warehousemen and
Helpers, Local 982, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America and Associated Independent
Owner -Operators , Inc. and J. K. Barker Trucking
Co.; Guy F. Atkinson Construction Co.; and
Southern California Chapter of the Associated
General Contractors of America , Parties to the
Contracts.
Construction Teamsters Union , Local 606,
International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America ( Cal-West Construction Company and
Lancaster Paving Co .) and Associated Independent
Owner-Operators, Inc.
Construction Teamsters Union , Local 606,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America and Joint Council of Teamsters No. 42,
International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America ( Kasler Corp . and Underwood & Payne
Dump Truck Service ) and Associated Independent
Owner-Operators, Inc.
Construction Teamsters Union , Local 606,
International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America and Joint Council of Teamsters No. 42,
International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America and Underwood & Payne Dump Truck
Service and Associated Independent
Owner-Operators , Inc. and Kasler Corp. and
Southern California Chapter of the Associated
General Contractors of America , Parties to the
Contract . Cases 31-CC-52, 31-CE-3, 31-CC-53,
31-CC-63 (formerly 21-CC-914), and 31-CE-5
(formerly 21 -CE-7 1)
March 5, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On June 2, 1967, Trial Examiner ,James R.
Webster issued his Decision in the above-entitled
proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent Unions and
the General Counsel filed exceptions to the Trial
Examiner's Decision and supporting briefs. The
General Counsel and the Charging Party also filed
answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and adopts the Trial
Examiner's Decision only to the extent consistent
herewith.
The Trial Examiner concluded that the
Respondent Unions jointly and/or severally violated
Section 8(b)(4)(i) and (ii)(A) and (B) by inducing
and encouraging individuals employed by Atkinson,
Barker, and Kasler to engage in a strike or a refusal
in the course of their employment to perform any
service, and by threatening, coercing and restraining
various owner-operators engaged on the two
highway projects, and Contractors Atkinson,
Barker, Kasler, and Underwood with an object of
forcing the owner-operators to join a local Teamster
Union, and with an object of forcing or requiring
the contractors to cease doing business with the
owner-operators. The Trial Examiner concluded
further that Respondent Local 606 violated Section
8(b)(4)(ii)(B) by threatening, coercing and
restraining Contractors Lancaster and Cal-West
with an object of forcing or requiring these
contractors to cease doing business with Chick's
Trucking Company.' Essential to these conclusions
is the Trial Examiner's subsidiary finding that the
owner-operators are self-employed persons or
independent contractors, not employees.
The prime contractors at the two highway
projects and the excavation subcontractor at the
Sears project secured their manned truck
requirements in substantially similar fashion. They
dealt directly with truck rental firms which, in
addition to supplying their own employee-operated
trucks, served as "brokers" when referring
owner-operated trucks to contractors. Thus, at the
Highway 99 project, the general contractor, Guy F.
Atkinson Construction Co. (herein called Atkinson),
entered into a written "Equipment Rental
Agreement" with Barker Dump Truck Service
(herein called Barker) to supply trucks and
operators, as needed, to haul decomposed granite at
the site. Similarly, at the Highway 10 project, the
general contractor, a joint venture consisting of the
Kasler Corp., Gordon H. Ball Enterprises, and E. L.
Yeager Construction (herein called Kasler), entered
'it appears from the Trial Examiner ' s findings and the record that
insofar as the Sears project is concerned, the operator of the truck owned
by Chick's Trucking Company was an owner -operator The operator of the
truck, Donald Chick, is a partner in Chick's Trucking Company
181 NLRB No. 67
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into an oral agreement with Underwood & Payne
Dump Truck Service (herein called Underwood) to
supply trucks and operators to haul wet batch
cement or concrete at the site. At the Sears project,
the excavation subcontractor, Lancaster Paving
Company (herein called Lancaster), entered into an
oral agreement with Chick's Trucking Company
(herein called Chick's) to supply a truck and
operator to haul dirt at the site. Although
Atkinson's written agreement with Barker appears
to have contemplated that Barker would supply his
own trucks and employees, Barker supplied only
owner-operated trucks. On the other hand,
Underwood supplied to Kasler at various times 2
employee-operated trucks and from 6 to 24
owner-operated trucks. The truck supplied to
Lancaster by Chick's was owned by Chick's and
driven by a partner, Donald Chick. The issue to be
resolved in the three consolidated cases concerns the
status of the owner-operators only.2
As noted, none of the owner-operators at the two
highway projects had any direct dealings with the
prime contractors. They were referred to these jobs
by Barker and Underwood under what appears to be
a somewhat institutionalized "broker" arrangement.'
Once on the job, however, the owner-operators were
treated no differently from an employee-operator of
the truck rental firms. In neither case did the truck
rental firm or broker furnish any supervision on the
job.4 Atkinson's equipment rental agreement with
Barker expressly provides that all work and work
schedules are to be as and when directed by
Atkinson's project manager . The agreement provides
also that all equipment operators shall be subject to
the approval of the contractor and any found
incompetent or undesirable shall be replaced. The
record shows that Kasler could remove such an
operator without first notifying Underwood.
Atkinson's agreement also stipulates that overtime is
to be paid by Atkinson and provides that wages and
subsistence per diem or "any other fringe benefits (if
any) paid" are to be those specified in governing
AGC agreements. The record shows further that
Atkinson kept a record of the working hours of the
owner-operators. Regardless of whether the truck
was owner-operated or employee-operated, the
contractor paid the truck rental firm or broker the
same flat rate per hour and paid for the total
manned truck hours in one lump sum.
'Although Donald Chick was only part owner of the truck he operated,
we find that insofar as pertinent to the issue herein his status is no
different from that of the owner -operators engaged on the highway
projects
'Indeed , it appears from the record that the "broker" system is so
widespread as to be subject to the regulation of the California Public
Utilities Commission The broker has his own form "subhaul" agreement
which is executed by hundreds of owner-operators The owner-operators,
likewise, execute subhaul agreements with 25 to 30 brokers In addition to
referring owner-operators to various jobs, the broker handles all
arrangements in connection with the rental of the manned trucks and
receives from the contractors all sums due for services rendered. These
terms are established by the subhaul agreement . Basically, the agreement
obligates the owner -operator or subhauler , upon reasonable notice, to
In finding that the owner-operators were
independent contractors, the Trial Examiner relied
on the fact that they have a substantial financial
investment in trucking equipment and sell the
services of their trucking equipment and themselves
as operators. In addition, he appears to have relied
on the fact that the owner-operators paid for and
had issued in their names all permits and insurance,
paid all maintenance and operating costs on their
trucks, and had no taxes or social security withheld
from their pay by the contractors or brokers.
However, we have repeatedly held that in making
determinations whether individuals are independent
contractors or employees, the common law "right of
control" test governs. The proper application of this
test demands a balancing of all evidence relevant to
the relationship. On the entire record in this case,
we are of the opinion that at all times relevant
herein the owner-operators were employees of the
prime contractors on the highway projects and of
subcontractor Lancaster on the Sears project.
Notwithstanding the fact that the owner-operators
have substantial financial investments in trucking
equipment, pay all maintenance and operating costs,
pay for all permits, insurance, social security and
income taxes, we are persuaded by the fact that,
once on the job, the owner-operators, like the
employee-operators, were at all times subject to the
supervision of the contractors. In addition, the
contractors retained control over the loaders which
were essential for loading the trucks, as well as
control over the place where the materials were to
be unloaded, and the number of trucks and hours of
their use. Moreover, the facts that the
owner-operators were paid by the hour, did not deal
directly with the contractors, and had no control
over their hours or rates of pay are indicative of the
owner-operators' status as employees who lacked the
means to accomplish results through the exercise of
independent judgment and skill. Therefore, contrary
proceed to the place of loading and to transport materials promptly and
safely to the place of delivery As a practical matter, however, the
subhauler is not bound to accept a given job, nor is the broker obligated to
offer a particular job to the subhauler Barker's form agreements expressly
provide that "it is not to be construed as a contract or agreement for any
specific transportation as to time, place, amount of transportation or
duration " Although Barker 's agreements permit either party to terminate
on 24 hours notice, Barker has the right at any time to terminate such
transportation as the owner -operator or subhauler may be performing for
Barker Underwood' s agreements permit cancellation by either party upon
ten days' notice for breach, but then appear to permit termination without
notice or cause The Barker and Underwood agreements uniformly require
the subhauler to pay all fees, licenses , taxes, fines , workmen's
compensation insurance, public liability and property damage insurance,
operating expenses , etc , but make provision for deduction of any advances
from amounts due the subhauler Barker's agreements stipulate that
Barker shall pay the California Transportation Tax and the PUC Tax,
which are to be deducted also The agreements also provide that the broker
is to pay the subhauler 95% of the minimum rate established by the PUC
Barker's agreements stipulate further that Barker shall pay by the 25th of
each month all amounts accrued for the preceding month PUC regulations
set the minimum rate which must be paid for the rental of a manned truck
and the date of payment.
With respect to owner-operator Donald Chick, he performed the same
work under the same supervision as Lancaster's employee-operator
GENERAL TEAMSTERS , LOCAL 982 517
to the Trial Examiner, we conclude that the
owner-operators at the three projects herein were
employees rather than independent contractors or
self-employed persons.' Accordingly, as the
Respondent Unions were involved in disputes with
the contractors concerning their employees, we find
they were not by the above-stated conduct in
violation of Section 8(b)(4)(i) and (ii)(A) and (B) of
the Act, and we shall dismiss the related allegations
of the complaint.
The Trial Examiner concluded that the
Respondent Unions also violated Section
8(b)(4)(i)(ii)(A) by inducing and encouraging
employees of Atkinson, Barker, and Kasler to
engage in a strike or a refusal in the course of their
employment to perform any service, and by
threatening, coercing and restraining Atkinson,
Barker, Kasler, and Underwood with the additional
object of forcing or requiring the foregoing
employers to maintain, reaffirm and give effect to
provisions of collective-bargaining agreements
prohibited by Section 8(e).6 He concluded further
that the Respondent Unions violated Section 8(e) by
entering into agreements with Atkinson, Barker,
Kasler, Underwood, and the Southern California
Chapter of the Associated General Contractors of
America whereby said employer's • agree to refrain
from doing business with certain other persons,
without complying with Section 8(e), and that
Respondent Underwood likewise violated Section
8(e). We agree with these conclusions only to the
extent hereafter set forth.
As to the 8(e) violations, the Trial Examiner
found, in agreement with the General Counsel's
theory of the complaint, that certain clauses in the
Master Labor Agreement are secondary and within
the purview of 8(e) rather than primary and outside
its scope. He found further that some of these
secondary clauses violated the Act because they
pertained to work not to be performed at a
construction site and thereby exceeded the bounds of
the construction industry proviso to 8'(e). While he
found that other secondary clauses pertained to
jobsite work and therefore came within the proviso,
he nonetheless found them to be violative of the Act
because the Master Labor Agreement and, Short
'Cf Construction . Building Material and Miscellaneous Drivers Local
Union No 83 . International Brotherhood of Teamsters , Chauffeurs.
Warehousemen & Helpers (Marshall & Haas ). 133 NLRB 1144
In light of the decision of the Court of Appeals for the Ninth Circuit in
Associated Independent Owner-Operators , Inc v N L R B, 407 F 2d 1383
(C A 9), reversing 168 NLRB No 112, Chairman McCulloch would
affirm the Trial Examiner ' s finding that the owner-operators are
independent contractors He would therefore find in agreement with the
Trial Examiner that the Respondent Unions violated Section 8(b)(4)(i) and
(iiXA) and (B) of the Act by engaging in threats , strikes, and picketing
with the unlawful objects proscribed by the foregoing provisions of the Act
'The record does not show that Barker had any employees on the
Highway 99 project Accordingly, we shall dismiss the 8 (bX4)(iXA)
allegation insofar as it is based on the inducement of employees of Barker
In the absence of exceptions , we adopt , pro forma , the Trial Examiner's
finding of an 8(b )(4)(i)(A) violation based on the Respondent Unions'
admitted threats to Kasler and "individuals employed by Kasler "
Form Agreements contained "self-help" clauses
which applied to and rendered unlawful the
otherwise protected secondary provisions. However,
no evidence, apart from the collective-bargaining
agreements, was adduced on the record to support
these findings. Therefore, we are faced with the
threshhold question whether or not the language
used in each clause, either when read by itself or
when interpreted and construed in the context of
other clauses in the agreements, is so clear as to
preclude ambiguity with respect to its meaning. The
question is one of contract interpretation and must
be resolved before we can determine the validity of a
clause under Section 8(e).'
In resolving the foregoing question, the Board, in
a line of decisions, has evolved what are essentially
rules of construction which have been useful in its
disposition of many clauses under this section of the
Act. Thus, if the meaning of the clause is clear, the
Board will determine forthwith its validity under
8(e);8 and where the clause is not clearly unlawful on
its face, the Board will interpret it to require no
more than what is allowed by law.' On the other
hand, if the clause is ambiguous, the Board will not
presume unlawfulness, but will consider extrinsic
evidence to determine whether the clause was
intended to be administered in a lawful or unlawful
manner.10 In the absence of such evidence, the Board
will refuse to pass on the validity of the clause.11
Our primary disagreement with the Trial
Examiner's consideration of the clauses herein stems
from his failure to resolve the threshhold question as
to each clause. We are of the opinion that a
resolution of this question in the light of the above
rules will result in the proper disposition of the great
majority of the clauses contained in the Master
Labor Agreement and the Short Form Agreements.' 2
1. The clauses which allegedly pertain to non-jobsite
work:
The Trial Examiner found that Section 102.2,
104.1, 104.2, and 105 of the MLA are secondary
provisions which on their face apply to non-jobsite
work. The Board has previously considered
'As the agreements herein pertain to the construction industry, this
question must be resolved not only where it is alleged that a clause is
secondary and therefore falls within the scope of 8(e ), but also in each
instance where it is claimed that such clause either exceeds the jobsite
limitations of the construction industry proviso or is rendered unlawful
because it may be enforced by prohibited self-help provisions
'Cement Masons Local Union No 97, AFL-CIO /Interstate Employers,
Inc / (Jones and Jones , Inc. and Interstate Employers , Inc ). 149 NLRB
1127, 1131-32, Los Angeles Building & Construction Trades Council
[Portofino Marina ( (Jones and Jones , Inc ), 150 NLRB 1590, 1592-93
(Hereafter called Interstate and Portofino, respectively
'Ets-Hokin Corporation . 154 NLRB 839, 841
""bid
" Southern California District Council of Hod Carriers and Laborers.
and Gunite Workers Local No 345 /Swimming Pool Gunite Contractors
Group) (Golding and Jones , Inc, for the Association and all its Members).
158 NLRB 303, 309 (hereafter called Gunite). Interstate supra at 1132, fn
10, Portofino. supra at 1592, fn 12
"Hereafter called the MLA and SFA or SFA' s, respectively
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provisions which are identical to sections 104.1 and
105." In Reynolds the Board held the latter clauses
to be secondary and within the scope of 8(e),
interpreting the identical section 104.1 explicitly and
section 105 implicitly to permit the subcontracting
of unit work to companies observing all the terms of
the contract which included a clause requiring
recognition of the union and noting that the union
so interpreted the clauses. Relying on International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 294
(Island Dock Lumber, Inc ), 145 NLRB 484,
491-492, the Board thereafter held that the
provisions unlawfully exceeded the bounds of the
construction site exemption to 8(e) since the
provisions sought to control the subcontracting of
the work of delivering materials, products, and
supplies to the construction site. However, it is plain
from the holdings of the earlier Interstate and
Portofino cases that the meaning of section 104.1 is
clear and that the clause is, on its face, a union
signatory clause, unaided by extrinsic evidence of its
interpretation by the Respondent Unions herein.
Accordingly, section 104.1 is unlawful for the
reasons stated in Interstate and Portofino, as well
as in Reynolds. On the other hand, as the meaning
of section 105 is ambiguous, the Board in Reynolds
held the identical clause to be secondary and
unlawful only because of the extrinsic evidence as to
its interpretation by the union. As no similar
evidence was introduced in the instant case to show
whether section 105 was intended to be administered
in a lawful manner, we shall not presume it to be
unlawful. Accordingly, we do not pass on its validity
under 8(e).
The Board has not had occasion to pass on the
validity of provisions such as sections 102.2 and
104.2. As to section 102.2, the Trial Examiner found
unlawful only that portion of the paragraph which
provides that "all of the production or fabrication of
materials by the . . . sub-contractor, for use on the
project shall be subject to the terms and conditions
of this Agreement."" We find that the clause is a
union signatory clause in that it permits the
subcontracting of work pertaining to the production
"Teamsters , Chauffeurs, Warehousemen Bc Helpers Local Union No
631, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America (Reynolds Electrical and Engineering Co , Inc et
al ), 154 NLRB 67, 69, fn 4, Interstate , supra at 1130 , fn 4, Portofino,
supra at 1592, 1599
The clauses read
104.1. So far as it is within the , control of the Contractor or his
subcontractors , all materials, supplies and equipment used on the job
shall be transported to or from the site of the work by workmen covered
by a collective bargaining agreement with the appropriate union
Nothing herein contained shall be construed to prohibit the normal
delivery of freight by railroad.
* • s s a
105 The Contractor and his subcontractors shall have freedom of
choice in the purchase of materials , supplies and equipment , save and
except that every reasonable effort shall be made by the Contractor and
his subcontractors to refrain from the use of materials , supplies or
equipment , which use will tend to cause any discord or disturbance on
the project.
or fabrication of materials but attempts to restrict
such work to subcontractors who are covered by the
terms and conditions of the MLA, which includes a
provision requiring recognition of the Union. As we
agree with the Trial Examiner's finding that the
clause covers off-site work, we conclude that it
violates the Act .15
As to section 104.2,16 the Trial Examiner found
that the first clause therein applied to "on-site"
work by employees of vendors, but, nonetheless,
found the clause to be violative of the Act because
of its enforcement by various "self=help" clauses
contained in the MLA and SFA's. It. is apparent,
therefore, that while he did not set forth his
rationale for finding the clause to be secondary, he
assumed it to be so." Unlike the preceding section
104.1, we do not interpret the clause on its face to
be a union signatory clause since it permits
nonsignatory vendors to make deliveries of
materials, supplies or equipment to the- jobsite.
Indeed, when read in the context of the remaining
clauses in section 104.2, as well as with section
104.1, we are of the opinion that the clause is a
primary work protection clause in that it is aimed at
preventing vendors from performing any work at the
jobsite after the delivery has been completed, work
which would normally be performed by the principal
work unit.1s
"As no exceptions were taken to the Trial Examiner ' s refusal to find
unlawful the other clause contained in the paragraph , we need not pass on
its validity
"Member Fanning is of the opinion that the clause in section 102 2 is
ambiguous and, therefore , would not presume it to be unlawful When read
in the context of the work coverage provisions contained in article XIII,
sections 1301 through 1301 2, he is of the opinion that the clause could be
lawfully administered to apply to the huge projects included in that article,
such as highways , subways, electric transmission lines, dams, canals, and
the like , where some production and fabrication of materials for use on
such projects could occur at the jobsites Accordingly, in the absence of
evidence of its administration in a lawful or unlawful manner, he would
not pass on its validity
"This clause reads
104 2 A vendor , who makes deliveries of material , supplies or
equipment and, who incidental to or as a part of the furnishing or
delivery of material, supplies or equipment , does any work at the jobsite,
shall be a party to a current collective bargaining agreement with the
International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , or one of its affiliates In the event a vendor is
,'note party to such an agreement , he shall not perform any jobsite work
except that deliveries may be made by such vendor to central storage
areas, or storage tanks, for later distribution by employees covered by
an-appropriate current labor agreement with the appropriate union, or
'subordinate body, affiliated with the Building and Construction Trades
Department , AFL-CIO, or with the International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of America, or an
affiliate thereof. This sub-paragraph shall apply only to vendors and
shall not be applicable to Contractors or their subcontractors or to their
employees Jobsite fueling by vendors shall not be covered by this
sub-paragraph 104 2 where economically not feasible or practical
provided that the actual fueling of the Contractor' s or subcontractor's
equipment is performed by employees of the craft operating such
equipment or where such fueling is performed in any other manner as
may be agreed upon
"The General Counsel contended in his brief to the Trial Examiner that
the clause prevents contractors from using the incidental delivery services
of vendors who are not signatory to an agreement with the Teamsters
"Chairman McCulloch interprets and construes section 104.2 as covering
work which is normally a part of the delivery process , such as the delivery
GENERAL TEAMSTERS, LOCAL 982 519
The Trial Examiner found further that the second
clause in section 104.2 is the same as section 104.1,
interpreting the clause as restricting or regulating
the place of delivery at the jobsite of materials,
supplies, and equipment. Relying on Island Dock,
supra, he found that this work is the "final act of
the delivery process" and not jobsite work.
Accordingly, he found that the clause exceeds the
bounds of the construction industry proviso to 8(e).
We are of the opinion, however, that the second
clause is not clearly unlawful on its face, since it
appears to permit vendors to perform the necessary
work in effecting a delivery to the construction site.
In this respect, the instant clause differs from the
clauses the Board found unlawful in the Island Dock
and Reynolds cases. In Island Dock the respondent
union interpreted a clause in its agreement to apply
to the pouring of ready-mixed concrete at the
construction site. Since concrete cannot be dumped
on the ground like other construction materials, the
Board there held that the pouring of the concrete
was the essence of the delivery and hence the final
act of the delivery process. In Reynolds, supra, there
was evidence showing that the respondent union
interpreted provisions in its agreement as prohibiting
truckdriving employees of nonsignatory employers
from even dropping their loads on the ground inside
the construction site. Unlike those cases, there is no
evidentiary basis for holding that the clause herein
has a similarly unlawful effect."
2. Clauses which allegedly pertain to jobsite work:
The Trial Examiner concluded that sections
102.3.1 through 102.3.6 of the MLA are secondary
provisions which comply with the construction
industry proviso in 8(e) since they pertain to the
subcontracting of work to be done at the jobsite. It
appears that the Trial Examiner also included
sections 307 and 1903 of the MLA in this category.
By lumping the clauses into a single category, the
Trial Examiner obliterated distinctions which the
Board has drawn between different types of clauses.
We think that a clearer analysis of these clauses will
result from adhering, wherever possible, to the
categories which have been recognized in past Board
decisions. Accordingly, sections 102.3.1 through
102.3.4 will be referred to herein as the 'union
signatory clauses, section 102.3.5 through 102.`3:.5.2
as the fringe benefit clauses, and sections 307,.; and
1903 as the owner-operator clauses. F ;:•
In Interstate, supra, the Board considered cl'atises
which are almost identical to sections 102.3
through 102.3.4.20 It there held that clauses like
of ready-mixed concrete , which the Board has held not to constitute
"on-site" work within the meaning of the construction industry proviso
Since the clause requires that such work be done by vendors who are
signatories to Teamster agreements , he would find that the clause is an
unlawful union signatory clause for the reasons stated in Island Dock,
supra at 490-492
"In any event, Member Fanning would find that the second clause is
ambiguous and refuses to pass on its validity in the absence of extrinsic
evidence
section 102.3.1 and 102.3.4 are union signatory
clauses which are protected by the construction
industry proviso. For similar reasons, we likewise
reach the same conclusions here with respect to
sections 102.3.1 and 102.3.4.
While the Board in Interstate refused to pass on
the validity of clauses identical to sections 102.3.2
and 102.3.3 because of their ambiguity, we now
believe, from further examination of these clauses,
that their meaning is clear and that they are likewise
union signatory clauses which are protected by the
proviso.
Section 102.3.3 states that it shall be applied
whenever work is to be performed by or services
rendered to a contractor or subcontractor. We
believe that this clause, when read in the context of
other clauses in the MLA, requires that signatory
employers cease doing business with non-signatory
employers who fail to apply the terms of the
contract to their employees. Thus, section 102.3.2
defines a subcontractor "as any person, firm or
corporation that agrees under contract with the
Contractor, or his subcontractors, to perform any
work covered by this Agreement, and who employs
workmen as employees to perform services covered
by this Agreement . . ." Section 102.3.4 provides
that if jobsite work is subcontracted "provision shall
be made in writing for the observance and
compliance by the subcontractors with the full terms
of this Agreement." It is clear therefore that section
102.3.3, when read in the context of these other
clauses, requires that nonsignatory subcontractors
engaged by signatory employers apply the terms of
the contract to their employees and, conversely, that
"See paragraphs D-1 through D-4 of the Cement Masons Master
Contract set forth therein at page 1129, fn 3
The clauses herein read
102 3.1 The Contractor agrees that he, or any of his subcontractors
on the jobsite, will not contract or subcontract work to be done at the
site of construction, alteration , painting , or repair of a building,
structure , or other work , except to a person , firm or corporation, party
to an appropriate, current labor agreement with the appropriate union,
or subordinate body, affiliated with the Building and Construction
Trades Department , AFL-CIO, or with the International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of America, or an
affiliate thereof
102 3 2 A subcontractor , for purposes of this Agreement , with the
exception of the general provision immediately above , is defined as any
person , firm or corporation that agrees under contract with the
Contractor, or his subcontractors , to perform any work covered by this
Agreement , and who employs workmen as employees to perform
services covered by this Agreement , including the performance of labor,
or the furnishing and installation of material , or the operation of
equipment All employees of subcontractors will perform work at the
appropriate hourly rate and will be reported to such trust funds as are
required by the Agreement
102 3.3 All work performed by the Contractor , or subcontractors, and
all services rendered for the Contractor, or subcontractors , shall be
rendered in accordance with each and all of the terms and provisions
hereof
102 3 4 If the Contractor , or subcontractors , shall subcontract jobsite
work covered under the jurisdiction of the International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of America,
including the furnishing and installation of materials, performance of
labor, or the operation of equipment , provision shall be made in writing
for the observance and compliance by the subcontractors with the full
terms of this Agreement
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signatory employers cease doing business with
nonsignatory subcontractors who fail to apply the
terms of the contract to their own employees.
Section 102.3.2 bears a similar import for, in
addition to defining a subcontractor, it states that
"[a]ll employees of subcontractors will perform
work at the appropriate hourly rate and will be
reported to such trust funds as are required by the
Agreement." As these clauses require the Employer
to cease doing business with other employers, we
find that they are within the scope of Section 8(e) of
the Act.
However, as noted previously, Section 8(e)
exempts from its provisions agreements ". . in the
construction industry relating to the contracting or
subcontracting of work to be done at the site of the
construction . . " Section 102.3.2 in the MLA
applies to the "subcontracting of work" and section
102.3.3 applies to the "contracting or subcontracting
of all work." While it is true that these clauses do
not expressly restrict their application to work done
at the construction site, it is clear that the related
clauses, section 102.3.1 and 102.3.4 do expressly
limit their application to such work. Moreover, the
Board has held that this fact alone does not require
the conclusion that such clauses exceed the
limitations of the construction industry proviso so
long as the clauses otherwise meet the proviso
requirements and there is no showing that the
parties intended the clauses to apply, or that they
had, in fact, been applied to offsite work.11 As there
is no such showing with respect to sections 102.3.2
and 102.3.3, we find in the circumstances now
before us that these paragraphs are protected by the
8(e) proviso.
Sections 102.3.5 through 102.3.5.2 are clearly
identifiable as fringe benefit clauses which, while
more detailed, are not essentially different from
similar clauses that the Board has scrutinized in past
decisions.22 In the Interstate and Portofino cases, the
Board refrained from passing on the validity of such
clauses on the ground that the language was
confusing and its intent unclear. However, in the
Calhoun case, pursuant to the direction of the Court
of Appeals for the District of Columbia,23 the Board
took evidence concerning the agreements and
declarations of trust establishing the union vacation
and insurance trust fund and based its holding that
the fringe benefit clause therein was secondary and
within the scope of 8(e) rather than primary and
outside its scope in large part on the specific
provisions of these agreements. However, in Gunite,
because of the absence of such extrinsic evidence as
present in Calhoun, the Board refused to find a
fringe benefit clause to be within the scope of 8(e).
In the light of these decisions, and in the absence of
other extrinsic evidence showing otherwise, we are
of the opinion that the fringe benefit clauses herein
are not clearly unlawful on their face.2°
"Gunite , supra at 304-305 and cases cited in in 5 therein
It appears from the Trial Examiner's Decision
and the General Counsel's exceptions and brief that
both sections 307 and 1903 relate to the status of
owner-operators.25 While the Trial Examiner found
inferentially that section 1903 contains a secondary
provision, he apparently did not make such a finding
with respect to section 307. As the General
Counsel's exceptions assume that the Trial
Examiner found both sections to be secondary, we
shall resolve this question first.
The first clause in section 1903 is clearly a
primary work protection clause since it requires that
contractors observe union standards as to wages
when using owner-operators as independent
contractors on jobsite work.26 However, we agree
with the Trial Examiner that the second clause in
"Orange Belt District Council of Painters 48, AFL-CIO (Calhoun
Drywall Company), 153 NLRB 1196, Interstate , supra, Portofino, supra,
Gunite, supra
The fringe benefit clauses herein read
102 3 5 The Trustees, through the administrative office of the
appropriate Health and Welfare and Pension Funds, shall advise each
Association party to this Agreement and the Union of the current,
delinquent accounts
102 3 5 I The tenth calendar day after such notice is sent by the
administrative office, the General Contractor shall become financially
responsible for all delinquent fringe-benefit payments that accrued on his
job after the ten-calendar -day-notice period for payments owed by any
subcontractor The Contractor may terminate the subcontract of said
delinquent subcontractor , or subcontractors , thereby limiting the
Contractor's liability , on that job , to the period from the eleventh day
after such notice is sent by the administrative office to the termination
of such subcontract on that job
102 3 5 2 Where a Contractor contracts with a listed delinquent
subcontractor , or subcontractors , the Contractor may terminate the
subcontract of such delinquent subcontractor , or subcontractors , thereby
limiting the Contractor's liability, on that job, to the period from the
commencement of the work under the subcontract to the date of
termination of that subcontract
23328 F 2d 534 (C A.D C ), remanding 139 NLRB 383
"Member Jenkins believes that the Board unwittingly makes a
disposition wherein it passes on the validity of the clauses , essentially
finding them to be primary and outside the scope of 8(e ) As the Calhoun
and Gunite cases demonstrate, a determination as to whether the clauses
are primary and outside the scope of 8(e ) or secondary and within its scope
cannot be made in the absence of evidence concerning the agreements and
declarations of trust establishing the union vacation and insurance trust
fund As such evidence is not present , the Board would ordinarily remand
the case to the Trial Examiner for the taking of this additional evidence
However, rather than remanding this case, Member Jenkins would dispose
of the clauses in the same manner as the Board did in Gunite , dismissing
these allegations of the complaint because of the length of time the matter
has been pending before the Board
PThelowner-operator clauses read.
307 The Contractor agrees that all work covered by this Agreement
shall be performed by workmen who, the Contractor and the Union
agree,t are employees of the Contractor, or subcontractor , and that both
the Contractor and the subcontractors shall employ such employees
under the terms of the appropriate labor agreement covering the work
involved
1903 When a truck or piece of equipment is driven or operated by its
owner as an independent contractor and is used on jobsite work covered
by this Agreement, the owner -driver or operator of said truck , or piece
of equipment shall receive a rate of pay not less than that specified in
this Agreement Such operator shall be , and remain, a member in good
standing of the Union and shall have a valid current clearance from the
Local Union covered by this Agreement having area jurisdiction
"Highway Truck Drivers and Helpers , Local 107, International
Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of
America (S & E McCormick . Inc ). 159 NLRB 84
GENERAL TEAMSTERS, LOCAL 982
that section is secondary since, in requiring
owner-operators "who are independent contractors"
to join the Union, it reaches beyond the employees
of the signatory contractors.
On the other hand, we interpret section 307 to be
a primary "union standards" clause. We note that
ithis provision is located at the end of article III,
=which is entitled "Classifications." The preceding
`sections in this article cover such subjects as
classification of new employees in occupations or
upon equipment not specified in the agreement,
temporary classifications and wage rates, the
number of employees and classifications required for
various operations, elimination of restrictions on
production and overtime, payment of traffic tickets
and time for court appearances, temporary
transfers, and method of computing pay These
subjects obviously cover minimum working
conditions which form a traditional part of the
union contract. We are of the opinion that section
307 merely imposes these union standards on
subcontractors, as well as signatories to the MLA.27
3. The alleged "self-help" clauses:
With the exception of the owner-operator clauses,2"
the Trial Examiner concluded further that the
above discussed clauses in the MLA were rendered
unlawful because of self-help provisions contained
therein2s and in section 403 of the MLA, as well as
in various paragraphs of the SFA's. Of course, to
the extent we have found certain of the alleged
secondary clauses to be primary or have refused to
pass upon their validity, we, for those reasons, do
not adopt these findings.30 Moreover, as in the case
of the alleged secondary clauses, we disagree with
the Trial Examiner's obliteration of the distinctions
which the Board has drawn between the different
types of self-help clauses. We shall now examine the
alleged self-help clauses in the light of these
distinctions.
In his brief to the Trial Examiner, the General
Counsel propounded the theory that sections 102.3.1
through 102.3.6 are interrelated and that the
self-help clauses contained therein render unlawful
the secondary clauses contained within these
provisions. The Trial Examiner not only adoptedthe
General Counsel's theory but concluded further,rthat
these self-help clauses apply to and render unlawful
the clauses which allegedly pertain to non-jobsite
work. We find merit in the Respondent U'nions'
exceptions to these conclusions.
"See Orange Belt District Council. No 48 v. N L R B (Calhoun
Drywall Company ), fn 23, supra at 538-539.
"The General Counsel excepts to the Trial Examiner 's omission of the
owner-operator clauses and contends that such omission was an
inadvertence
"'While the Trial Examiner did not specify these clauses, he apparently
adopted the General Counsel's theory that sections 102 3 5 3 through
102.3 5 6 constituted such clauses
"Thus, the self-help clauses do not render unlawful sections 102 3 5
through 102 3 5 2, the second clause in section 104 2, sections 105 and 307,
and the first clause in section 1903
521
While sections 102.3.5.3 through 102.3.5.6 are
clearly self-help clauses, they obviously relate to the
fringe benefit clauses with which they are grouped in
the MLA." As we have found the latter clauses to
be, in effect, lawful primary provisions, the self-help
clauses are to this extent likewise- lawful.32 Even
though sections 102.3.1 through 102.3.6 may appear
from a mere reading to be interrelated, we do not
believe the self-help clauses contained in sections
102.3.5 3 through 102.3.5.6 can be mechanically
applied beyond their obvious purpose on this basis
without some proof that they were intended to apply
to provisions such as sections 102.3.1 through
102.3.4. As the latter clauses are not clearly
unlawful on their face, we will interpret them to
require no more than what is allowed by law. For
similar reasons , we reject the General Counsel's
contention that the foregoing self-help clauses render
unlawful sections 307 and 1903.
As noted, the Trial Examiner made similar
conclusions with regard to self-help clauses
contained in section 403 of the MLA and various
paragraphs in the SFA's. Indeed, the Board has
considered some of these paragraphs separately and
found them to contain secondary clauses which
violate Section 8(e) because of the presence of an
unlawful picket line clause or similar provision .13
"These self-help clauses read
102.3.5 3 The Union may give written notice to a listed delinquent
Contractor, or subcontractor , (with a copy to the General Contractor) to
pay the delinquent amounts due all trust funds Within five days from
the giving of such notice, the Union shall withhold service from any or
all jobs of such delinquent Contractor , or subcontractor , if proper
payment is not made
102 3 5 4 Where the General Contractor fails or refuses to make any
payments required under the above provisions , the Union shall have the
right to withhold service from any or all jobs of such General
Contractor
102 3 5 5. Where there is no General Contractor on the jobsite, the
right to withhold service by the Union shall apply to the project as a
whole
102.3 5 6 Any such action in accordance with the foregoing
subparagraph 102.3 5 5 shall not be considered a strike or work stoppage
within the terms of this Agreement This provision shall apply to any
Contractor , or subcontractor, on any ,lobstte operation under any change
of name or association or joint venture , including any person who miy
have been a principal financially associated with the Contractor, or
subcontractor , who was delinquent in said payments and with regard to
which delinquency the notice required has been given
102 3 6 The Trustees of the respective trust funds shall be instructed to
comply with these provisions and the parties agree to make any
amendments in the respective trust agreements necessary to accomplish
the above
"Member Fanning would not, in any event , find 'these self-help clauses
unlawful See his dissenting opinions in Muskegon Bricklayers Union 5.
Bricklayers , Masons and Plasterers International Union of America'
(AFL-CIO) (Great Muskegon General Contractors Association), 152
NLRB 360 at 369 , and Ets-Hokin Corporation , 154 NLRB 839 at 847
"Section 403 is identical to paragraph IIIB in Guntte , supra , at 306. The
Board found this paragraph to be secondary and unlawful because it
contained a clause that deprived employers of their right to resort to
otherwise available administrative and judicial remedies for violations of
the contract based on their employees ' refusal to work on jobs declared
unfair by the union
Article IIIA of the second Barker SFA is a secondary provision which
contains a straight picket line clause that is identical to article IX, section
I in Truck Drivers & Helpers Local Union 728, Teamsters (Brown
Transport Corp ), 140 NLRB 1436, 1437-38, and in Truck Drivers Union
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Even though the General Counsel bottomed his
theories for finding violations with respect to these
paragraphs on some of the cited cases, the Trial
Examiner ignored those cases." Instead, he plucked
the self-help clauses from these provisions and
applied them to what he concluded were the
secondary provisions in the MLA. While the Trial
Examiner is substantially correct in finding that the
provisions of the MLA are incorporated by
reference into each SFA, we find no warrant, from
a literal reading of these self-help clauses, for
extending them beyond the paragraphs in which they
are included and to which they obviously apply.
Accordingly, we shall dismiss the allegations of the
complaint relating to-these self-help clauses.35
Article V in each of the SFA's stands on a
different footing than the self-help clauses heretofore
discussed. It is not tied down to a specific
paragraph, but by its explicit terms is a catchall
provision which permits economic enforcement of
the entire agreement. Since each SFA incorporates
by reference all pertinent provision of the MLA, we
agree with the Trial Examiner's conclusion, to the
extent modified herein, that this provision renders
unlawful the secondary provisions included in the
MLA, which, but for Article V, would be privileged
by virtue of the construction industry proviso.36
Local No 413, Teamsters (The Patton Warehouse , Inc). 140 NLRB
1474, 1476-82 This clause is prohibited by 8(e), at least, insofar as its
language is broad enough to apply to secondary picketing having no
connection with disputes concerning jobsite subcontracting Hodcarriers'
and Construction Laborers' Union Local 300, etc /Fiesta Pools, Inc , and
Universal Contractors, Inc / (Jones & Jones, inc ), 154 NLRB 1744, 1745,
fn 7, Los Angeles Building & Construction Trades Council, and Local
No 844. Carpenters (Quality Builders , Inc ), 153 NLRB 383, 388
Article III of the first Barker SFA and the identical article ILIA of the
Underwood SFA are secondary provisions that contain clauses which are
similar to the clauses in the Brown and Patton cases and are prohibited
under 8 (e) for the same reasons (See article H of the Laborers' agreement
and article IX of the Council' s agreement in Portofino, supra at 1597-98
See similar provisions in interstate , supra at 1130-32, and fns 4 and 5
therein ) These paragraphs also contain clauses which provide that an
employee need not handle goods which are on the "We Do Not Patronize
List" of the two named Councils. The clauses are no different from the
"unfair" declarations included in the paragraphs cited from the Portofino
and Interstate cases, which the Board found were but another sanction
made available to the unions to enforce the unlawful clauses of its
agreements
"As neither the General Counsel nor the Charging Party excepted to the
Trial Examiner's failure to consider the legal impact of these self-help
clauses on the paragraphs in which they are contained , we do not find
unlawful the secondary provisions adverted to in the preceding footnote on
the basis of the cases cited therein
"The Board has not previously considered the validity under 8(e) of
article IIIB of the Underwood SFA However , as there are no exceptions
to the Trial Examiner's failure to consider whether or not the paragraph
comes within the scope of Section 8(e) and whether or not the alleged
self-help clause contained therein renders the paragraph unlawful , we shall
not pass on these issues In any event , we dismiss the allegation of the
complaint relating to this paragraph for the same reasons that apply to the
paragraphs which contain the picket line clauses
Member Fanning concurs in this finding for the reasons stated in his
dissenting opinions in the Muskegon and Ets-Hokin cases, supra
"Muskegon , supra, Ets-Hokin, supra, Gunite , In II supra
Member Fanning dissents from this finding for the reasons stated in his
dissenting opinions in the Muskegon and Ets-Hokin cases, supra
CONCLUSIONS OF LAW
1. Atkinson, Barker, Hahn, Cal-West, Lancaster,
Kasler, Gordon H. Ball Enterprises, E. L. Yeager
Construction Company and Respondent Underwood
are employers engaged in commerce and in a
business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Respondents Local 982, Local 606 and Joint
Council are labor organizations within the meaning
of Section 2(5) of the Act.
3. By inducing and encouraging employees of
Atkinson to engage in a strike or a refusal to
perform any services, and by threatening, coercing
and restraining Atkinson and Barker, with an object
of forcing or requiring Atkinson and Barker to
maintain, reaffirm and give effect to provisions of
collective-bargaining agreements prohibited by
Section 8(e) of the Act, Respondent Local 982 has
engaged in unfair labor practices in violation of
Section 8(b)(4)(i)(ii)(A) and (B) of the Act.
4. By entering into agreements with Atkinson and
Barker and the Southern California Chapter of the
Associated General Contractors of America whereby
said employers agree to refrain from doing business
with certain other persons in contravention of the
prohibitions of Section 8(e) of the Act, Respondent
Local 982 has engaged in an unfair labor practice in
violation of Section 8(e) of the Act.
5. By inducing and encouraging individuals
employed by Kasler to engage in a strike or a
refusal in the course of their employment to perform
any services, and by threatening, coercing and
restraining Kasler and Underwood with an object of
forcing or requiring Kasler and Underwood to
maintain , reaffirm and give effect to provisions of
collective-bargaining agreements prohibited by
Section 8(e) of the Act, Respondents Local 606 and
Joint Council have engaged in unfair labor practices
in violation of Section 8(b)(4)(i) and (ii)(A) and (B)
of the Act.
6. By entering into agreements with Kasler and
Underwood and the Southern California Chapter of
the Associated General Contractors of America
whereby said employers agree to refrain from doing
business with certain other persons in contravention
of the prohibitions of Section 8(e) of the Act,
Respondents Local 606 and Joint Council have
engaged in an unfair labor practice in violation of
Section 8(e) of the Act.
7. By entering into a collective-bargaining
agreement whereby said Respondent Employer
agrees to refrain from doing business with certain
other persons in contravention of the prohibitions of
Section 8(e) of the Act, Respondent Underwood has
engaged in an unfair labor practice in violation of
Section 8(e) of the Act.
8. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
GENERAL TEAMSTERS, LOCAL 982 523
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the
Respondents, General Teamsters, Chauffeurs,
Warehousemen and Helpers, Local 982;
Construction Teamsters Union, Local 606; and Joint
Council of Teamsters No. 42, all affiliated with the
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, their officers, representatives, and agents;
and Underwood & Payne Dump Truck Service, its
officers, agents, successors, and assigns, shall take
the action set forth herein:
A. General Teamsters, Chauffeurs,
Warehousemen and Helpers Local 982:
1. Cease and desist from:
(a) Inducing or encouraging employees of Guy F.
Atkinson Construction Company, or any other
employer engaged in commerce or in an industry
affecting commerce, to engage in a strike or refusal
in the course of their employment to use or handle
any materials or to perform any services or
threatening, coercing, or restraining Guy F.
Atkinson Construction Company, J. K. Barker
Trucking Company, or any other person engaged in
commerce or in an industry affecting commerce,
where an object thereof is to force or require
Atkinson, Barker, or any other employer or person,
to maintain, reaffirm and give effect to provisions of
collective-bargaining agreements prohibited by
Section 8(e) of the Act.
(b) Entering into, maintaining , giving effect to or
enforcing subcontracting clauses in its
collective-bargaining agreements with Atkinson,
Barker, and the Southern California Chapter of the
Associated General Contractors of America, to the
extent found unlawful herein.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix
A."" Copies of said notice, on forms to be provided
by the Regional Director for Region 31, shall, after
being duly signed by a representative of Respondent
Local 982, be posted by said Union immediately
upon receipt thereof, and be maintained by it"for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to members -are
customarily posted. Reasonable steps shall be taken
by the Union to insure that said Notices are not
altered, defaced, or covered by any other material.
(b) Sign and mail to said Regional Director
sufficient copies of the aforementioned notice for
posting at the premises of Atkinson and Barker, if
"in the event this Order is enforced by a judgment of the United States
Court of Appeals , the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted pursuant to a
Judgment of the United States Court of Appeals enforcing an Order of the
National Labor Relations Board "
willing.
(c) Notify the Regional Director for Region 31, in
writing, within 10 days from the date of this Order
what steps the Respondent has taken to comply
herewith.
B. Construction Teamsters Union, Local 606:
1. Cease and desist from:
(a) Inducing or encouraging individuals employed
by Kasler Corporation, or any other employer
engaged in commerce or in an industry affecting
commerce, to engage in a strike or refusal in the
course of their employment to use or handle any
materials or to perform any services or threatening,
coercing, or restraining Kasler Corporation,
Underwood & Payne Dump Truck Service, or any
other person engaged in commerce or in an industry
affecting commerce, where an object thereof is to
force or require Kasler, Underwood, or any other
employer or person, to maintain, reaffirm and give
effect to provisions of collective-bargaining
agreements prohibited by Section 8(e) of the Act.
(b) Entering into, maintaining, giving effect to or
enforcing subcontracting clauses in its
collective-bargaining agreements with Kasler,
Underwood, and the Southern California Chapter of
the Associated General Contractors of America, to
the extent found unlawful herein.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix B."78
Copies of said notice, on forms to be provided by
the Regional Director for Region 31, shall, after
being duly signed by a representative of Respondent
Local 606, be posted by said Union immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken
by the Union to insure that said Notices are not
altered, defaced, or covered by any other material.
(b) Sign and mail to said Regional Director
sufficient copies of the aforementioned notice for
posting at the premises of Kasler and Underwood, if
willing.
(c) Notify the Regional Director for Region 31, in
writing, within 10 days from the date of this Order
what steps the Respondent has taken to comply
herewith.
C. Joint Council of Teamsters No. 42:
1. Cease and desist from:
(a) Inducing or encouraging individuals employed
by Kasler Corporation, or any other employer
engaged in commerce or in an industry affecting
commerce, to engage in a strike or refusal in the
course of their employment to use or handle any
materials or to perform any services or threatening,
coercing, or restraining Kasler Corporation,
Underwood & Payne Dump Truck Service, or any
"See fn . 37, supra
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other person engaged in commerce or in an industry
affecting commerce, where an object thereof is to
force or require Kasler, Underwood, or any other
employer or person, to maintain, reaffirm and give
effect to provisions of collective-bargaining
agreements prohibited by Section 8(e) of the Act.
(b) Entering into, maintaining, giving effect to or
enforcing subcontracting clauses in its
collective-bargaining agreements with Kasler,
Underwood, and the Southern California Chapter of
the Associated General Contractors of America, to
the extent found unlawful herein.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix C."3
Copies of said notice, on forms to be provided by
the Regional Director for Region 31, shall, after
being duly signed by a representative of Respondent
Joint Council, be posted by said Union immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken
by the Union to insure that said Notices are not
altered, defaced, or covered by any other material.
(b) Sign and mail to said Regional Director
sufficient copies of the aforementioned notice for
posting at the premises of Kasler and Underwood, if
willing.
(c) Notify the Regional Director for Region 31, in
writing, within 10 days from the date of this Order
what steps the Respondent has taken to comply
herewith.
D. Underwood and Payne Dump Truck Service:
1. Cease and desist from:
(a) Entering into, maintaining, or giving effect to
the subcontracting clauses of its
collective-bargaining agreement with Respondents
Local 606 and Joint Council, to the extent found
unlawful herein.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its place of business copies of the
attached notice marked "Appendix D."40 Copies of
said notice, on forms to be provided by the Regional
Director for Region 31, shall, after being duly
signed by a representative of Respondent
Underwood, be posted by the Company immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Company to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 31, in
writing, within 10 days from the date of this Order
what steps have been taken to comply herewith.
"See in. 37, supra
"See In . 37, supra
IT IS HEREBY ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
of the Act other than those found in this Decision.
APPENDIX A
NOTICE TO MEMBERS
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT induce or encourage employees of Guy
F. Atkinson Construction Company, or any other
employer engaged in commerce or in an industry
affecting commerce, to engage in a strike or refusal in
the course of their employment to use or handle any
materials or to perform any services, and we will not
threaten or coerce or restrain Guy F. Atkinson
Construction Company, J. K. Barker Trucking
Company, or any other person engaged in commerce or
in an industry affecting commerce, where in either case
an object thereof is to force or require Atkinson
Construction Company, Barker Trucking Company, or
any other employer or person , to maintain , reaffirm
and give effect to provisions of collective-bargaining
agreements prohibited by Section 8(e) of the Act.
WE WILL NOT enter into, maintain , give effect to, or
enforce subcontracting clauses in our
collective-bargaining agreements with Atkinson, Barker,
and Southern California Chapter of the Associated
General Contractors of America, to the extent that they
violate Section 8(e) of the National Labor Relations
Act.
Dated By
GENERAL TEAMSTERS,
CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS, LOCAL 982,
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from,the date of posting and must not be altered, defaced,
or covered by any other material
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board 's Office,
Room 12100, Federal Building, 11000 Wilshire Boulevard,
Los Angeles, California 90024, Telephone 213-824-7351.
APPENDIX B
NOTICE TO MEMBERS
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT induce or encourage individuals
employed by Kasler Corporation, or any other
employer engaged in commerce or in an industry
affecting commerce, to engage in a strike or refusal in
the course of their employment to use or handle any
GENERAL TEAMSTERS , LOCAL 982
materials or to perform any services , and we will not
threaten or coerce or restrain Kasler Corporation,
Underwood & Payne Dump Truck Service, or any
other person engaged in commerce or in an industry
affecting commerce , where in either case an object
thereof is to force or require Kasler , Underwood, or
any other employer or person to maintain, reaffirm and
give effect to provisions of collective -bargaining
agreement prohibited by Section 8(e) of the Act
WE WILL NOT enter into , maintain , give effect to, or
enforce subcontracting clauses in our
collective - bargaining agreements with Kasler,
Underwood , and Sourthern California Chapter of the
Associated General Contractors of America, to the
extent that they violate Section 8(e) of the National
Labor Relations Act.
CONSTRUCTION
TEAMSTERS UNION,
LOCAL 606,
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions , may be directed to the Board's Office,
Room 12100 , Federal Building, 11000 Wilshire Boulevard,
Los Angeles , California 90024, Telephone 213-824-7351.
APPENDIX C
NOTICE TO MEMBERS
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT induce or encourage individuals
employed by Kasler Corporation , or any other
employer engaged in commerce or in an industry
affecting commerce, to engage in a strike or refusal in
the course of their employment to use or handle'any
materials or to perform any services, and we will not
threaten or coerce or restrain Kasler Corporation,
Underwood & Payne Dump Truck Service, or any
other person engaged in commerce or in an industry
affecting commerce , where in either case an object
thereof is to force or require Kasler , Underwood, or
any other employer or person , to maintain , reaffirm
and give effect to provision of collective-bargaining
agreements prohibited by Section 8(e) of the Act
WE WILL NOT enter into , maintain, give effect to, or
enforce subcontracting clauses in our
collective-bargaining agreements with Kasler,
Underwood , and Southern California Chapter of the
Associated General Contractors of America, to the
extent that they violate Section 8 (e) of the National
Labor Relations Act.
Dated By
525
JOINT COUNCIL OF
TEAMSTERS No. 42,
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions , may be directed to the Board ' s Office,
Room 12100 , Federal Building, 11000 Wilshire Boulevard,
Los Angeles , California 90024 , Telephone 213-824-7351.
APPENDIX D
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT enter into , maintain or give effect to
the subcontracting clauses of our collective-bargaining
agreement with Construction Teamsters Union, Local
606, and Joint Council of Teamsters No. 42,
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, to the extent
that they violate Section 8(e) of the National Labor
Relations Act.
UNDERWOOD & PAYNE
DUMP TRUCK SERVICE
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions , may be directed to the Board ' s Office,
Room 12100 , Federal Building, 11000 Wilshire Boulevard,
Los Angeles, California 90024 , Telephone 213-824-7351.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
JAMES R. WEBSTER , Trial Examiner : This case , with all
parties represented, was heard in Los Angeles, California,
on February 7, 1967, on a complaint of the General
Counsel and answers of General Teamsters, Chauffeurs,
Warehousemen and Helpers , Local 982 ; Construction
Teamsters Union, Local 606; and Joint Council of
Teamsters No. 42, each of which are affiliated with the
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , and are
hereinafter referred to as Local 982 , Local 606 , and Joint
Council respectively . An answer has also been filed by the
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southern California Chapter of the Associated General
Contractors of America, party to the contract, referred to
herein as Associated General Contractors.' The complaint
was issued on August 10, 1966, and amended on
September 27, 1966. All charges upon which the
complaint is based were filed in December 1965, and the
complaint alleges that Respondent Unions have violated
Sections 8(b)(4)(i) and (ii) (A) and ( B) and 8(e) of the
National Labor Relations Act, herein called the Act
The General Counsel, Respondent Unions, and the
Charging Party have filed briefs herein and they have been
carefully considered. Upon the entire record and my
observation of the witnesses, I hereby make the following-
FINDINGS OF FACT
1. THE BUSINESSES OF THE EMPLOYERS
Guy F. Atkinson Construction Company, herein called
Atkinson, a California corporation engaged in the building
and construction industry, has been engaged at Castaic,
Los Angeles County, California, in the relocation of
Interstate Highway 99, pursuant to a contract between
Atkinson and the Division of Highways, State of
California, which contract is valued in excess of $1
million . At all times material herein, Atkinson has been a
member of the Southern California Chapter of the
Associated General Contractors of America, which is an
association of employers in the building and construction
industry and which engages in negotiating and entering
into collective-bargaining agreements on behalf of its
employer-members and in representing its
employer-members in matters of labor disputes,
grievances, and other phases of labor-management
relations . In connection with its work on Interstate
Highway 99 and during the calendar year 1965, Atkinson
purchased goods valued in excess of $50,000 from
suppliers within the State of California, which suppliers
received said goods directly from states of the United
States other than the State of California.
J. K. Barker Trucking Company, herein called Barker,
with offices and place of business in Torrance, California,
is engaged in the business of furnishing trucking services
to contractors in the building and construction industry,
and is a subcontractor on the Highway 99 project. In
1965, Barker furnished trucking services to Atkinson of a
value in excess of $100,000.
Ernest W. Hahn, Inc., herein called Hahn, a general
contractor, has been engaged since about October 1, 1965,
in the construction of a department store building in San
Bernardino , California, for Sears, Roebuck and Company,
herein referred to as the Sears project. The contract being
performed by Hahn is valued in excess of $1 million.
Since on or about October 1, 1965, Central Industrial
Engineering Company, one of the subcontractors of Hahn,
has purchased and received for use on the Sears, Roebuck
and Company project goods and materials valued in
excess of $50,000 from suppliers located within the State
of California, which suppliers have received such products,
goods and materials directly from points outside the State
of California.
On the Sears project Hahn subcontracted certain
concrete work to Cal-West Construction Company, a
'No answer was filed by Underwood and Payne Dump Truck Service,
the Employer Respondent in Case 31 -CE-5; however , Glenn Underwood, a
partner in this company, was a witness in this case and stated that he did
not care to enter an appearance for his company
concrete contractor in the building and construction
industry, herein called Cal-West. Cal-West subcontracted
certain of its excavation work to Lancaster Paving Co.,
herein called Lancaster. On or about October 25, 1965,
Chick's Trucking Company furnished to Lancaster a truck
and truck operator for Lancaster's use on this project.
Kasler Corp., a California corporation engaged in the
building and construction industry, herein called Kasler,
has been engaged since about September 10, 1965, in a
joint venture with Gordon H. Ball enterprises and E. L.
Yeager Construction Company, in the widening of
Interstate Highway 10, pursuant to a construction
contract valued in excess of $1 million At all times
material herein, Kasler has been a member of the
Associated General Contractors of America. In
connection with its work on Interstate Highway 10, during
the calendar year 1965, Kasler, Ball and Yeager
purchased products, goods and materials valued in excess
of $50,000 from suppliers located within the State of
California, which suppliers received said products, goods,
and materials directly from states of the United States
other than the State of California.
Underwood and Payne Dump Truck Service, herein
called Underwood, with an office and principal place of
business located in Baldwin Park, California, is engaged
in furnishing trucking services to contractors' in the
building and construction industry. In 1965, the value of
such services rendered to Kasler was between $50,000 and
$60,000
I find that Atkinson, Barker, Hahn, Cal-West,
Lancaster, Chick's Trucking Company, Kasler, Gordon
H. Ball Enterprises, E. L. Yeager Construction Company
and Underwood are employers engaged in commerce and
in businesses affecting commerce within the meaning of
Section 2(6) and (7) and Section 8(b)(4) of the Act.
11. THE LABOR ORGANIZATIONS INVOLVED
Local 982, Local 606 and Joint Council, Respondents
herein, are labor organizations within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement and Issues
A central feature in this case is the desire and effort of
the Respondent Unions to have all dump truck operators
on the projects involved be or become members of a local
Teamster union . On each of the projects the dump truck
operations were performed on a rental basis. The
contractor desiring the services of dump trucks rented
manned dump trucks at so much an hour. These were
obtained from trucking companies that supply their own
trucks-manned by their employees and trucks belonging to
and manned by "owner-operators." The owner-operators
involved herein are not members of any labor
organization. Respondents have sought to have them join
a local Teamster union and have sought to enforce certain
subcontracting clauses in collective-bargaining agreements
with the general contractors and with certain
subcontractors; and contractors have been approached
with threats of picketing, and picketing has ensued.
The principal issues are: (1) whether the conduct of the
Respondent Unions and whether the contract clauses
involved are in furtherance of "primary" disputes for the
preservation of work for employee-drivers, or whether
GENERAL TEAMSTERS, LOCAL 982 527
their agreements and boycott activities are tactically
calculated to satisfy union objectives elsewhere and
therefore are "secondary "
(2) If the clauses of the agreements and the boycott
actions of Respondent Unions are secondary and therefore
within the purview of Section 8(b)(4)(B) and 8(e) of the
Act, then an issue exists as to whether the clauses of the
agreements fully comply with the construction industry
exception to Section 8(e) which requires (a) that the
subcontracted work be done at the worksite involved and
(b) that enforcement of the agreement be by judicial
action and not economic action, or "self-help."
(3) Whether Local 982 threatened, coerced or restrained
Atkinson and Barker and/or induced or encouraged their
employees to engage in a strike for the objects of (a)
forcing or requiring the dump truck owner-operators
involved to join Local 982 or some local Teamster union,
(b) forcing or requiring Atkinson and Barker to maintain,
reaffirm and give effect to provisions of
collective- bargaining agreements prohibited by Section
8(e) of the Act, and/or (c) forcing or requiring Atkinson
and Barker to cease doing business with said
owner-operators, thereby violating Section 8(b)(4)(i) and
(ii) (A) and (B) of the Act.
(4) Whether in connection with the Sears project, Local
606 threatened, coerced or restrained Cal-West and
Lancaster for an object of forcing or requiring them to
cease doing business with Chick's Trucking Company,
thereby violating Section 8(b)(4)(ii)(B) of the Act
(5) Whether Local 606 and Joint Council threatened,
coerced or restrained Kasler and Underwood and/or
induced or encouraged employees of Kasler to engage in a
strike for the objects of (a) forcing or requiring the dump
truck owner-operators involved to join Local 606 or some
local Teamster union, (b) forcing or requiring Kasler and
Underwood to maintain , reaffirm and give effect to
provisions of collective-bargaining agreements prohibited
by Section 8(e) of the Act, and/or (c) forcing or requiring
Kasler and Underwood to cease doing business with said
owner-operators, thereby violating Section 8(b)(4)(i),
(ii)(A) and (B) of the Act.
B. Highway 99 Protect
In connection with its contract with the Division of
Highways, State of California, for construction work on
Highway 99, Atkinson Company contracted with Barker
Dump Truck Service on November 10, 1965, for the
rental of dump trucks of ten yards capacity at an hourly
rate of $10.09; the trucks were to be furnishedl,fully
operated, maintained and insured
Although Barker owns dump trucks and - hires
employees to operate them, and has . a
collective- bargaining agreement with Local 982 covering
these employees, he also serves as a broker for
owner-operators of dump trucks and furnishes or refers
them to contractors on an hourly rental basis, the hourly
rate being the same as for his own trucks and employees
The contract rental rate for owner-operator trucks is paid
by the contractor, Atkinson in this instance, to Barker,
Barker takes 5 percent as his commission , and deducts 1
1/2 percent for California Transportation Tax payable to
the State Board of Equalization, and deducts 1/3 percent
for the State Public Utilities Commission Tax; the
remainder is paid to the owner-operator or subhauler for
the services of himself and truck.
On Project 99 Barker did not furnish any of his own
trucks or employees - his equipment was being used
elsewhere; but he referred the following owner-operators:
Ellsworth E Neal, Virgil R Mather, Gerald V Smith,
Donald K Yontz, George White, and Jose F. Silva These
men were informed on Friday, December 3, 1965, of the
work on Project 99 They worked from Monday,
December 6, until about 10:00 a in. on December 9, 1965.
On or about December 6, 1965, William Buchanan, a
business agent of Local 982, told owner-operators Neal
and Smith that they had to join Local 982 or some other
local union affiliated with the Teamsters, otherwise they
would not work on the project
Commencing on or about December 7, 1965, and
continuing until on or about December 9, 1965, Local 982
demanded that Atkinson and that Barker maintain,
reaffirm and give effect to their collective- bargaining
agreements with said Union (the provisions of which are
discussed hereinafter in paragraphs F and G).
On Tuesday, December 7, 1965, Gordon Morrison,
area labor relations manager for Atkinson Company,
received a telephone call from Buchanan, the call was
made by Buchanan from Atkinson's office at the project
site. Buchanan told him that trucks being rented from
Barker, at least in part, were being driven by drivers other
than members of his Union, and he requested that
Morrison advise Barker to remove these drivers from the
project Morrison told him that he would have to
investigate the matter and would call him later.
On December 8, 1965, James Maxwell, a
superintendent for Barker, went to the jobsite for the
purpose of delivering a timeclock. While he was there
Buchanan and another person drove to the site The
loader operator, an employee of Atkinson Company, was
loading a truck driven by owner-operator Neal at the
time. Buchanan told the loader operator, "this is not a
union operator Don't load his truck." Maxwell asked
Buchanan why the loading operation has been stopped.
Buchanan replied that there was a non-Teamster operator
in the dump truck being loaded and that the operation
should cease until he was replaced. Maxwell told
Buchanan that he represented the firm supplying the
equipment, and that if there was a problem he would like
to straighten it out. Buchanan said that he had already
taken care of the problem, that he had shut the job down.
Maxwell asked Buchanan for a "knock-off slip", but
Buchanan refused to give him one or to sign one Maxwell
told him that without a "knock-off-slip" the operation
would have to continue as he had no authority without it
to stop the subhaulers. Buchanan then called Jim
Allworth, Atkinson's office manager , on the radio He
told Allworth that there was a non-union employee on the
job on a non-union truck, and he asked Allworth to stop
the operation. Allworth told Buchanan that his problem
was not with Atkinson but that it was with Barker.
Buchanan then left and the operation continued that day.
On the afternoon of December 8, Morrison, Atkinson's
labor relations manager , called Buchanan and told him
that as the Union has a labor agreement with Barker, its
problem was with Barker Buchanan stated that Atkinson
would have to take the people off the job as Atkinson was
the prime contractor. Morrison suggested that Buchanan
use the grievance procedure in the Master Labor
Agreement Buchanan replied that "this is not the way we
can resolve these problems, and I will have to go get the
picket signs "
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the next day, December 9, 1965, Local 982 picketed
Atkinson and Barker at Project 99 with signs which stated
"Unfair to Teamsters Local 982 " Barker went to the
jobsite on that day and told the owner -operators to sign
out because of the difficulty on the job. Thereafter , Barker
and Atkinson ceased using the services of Neal , Mather,
Smith , Yontz, White, and Silva, and from December 9,
1965, until on or about January 31, 1966, Barker and
Local 982 maintained , reaffirmed and gave effect to a
collective -bargaining agreement of May 1, 1959, and since
January 31 , 1966, they have maintained , reaffirmed and
given effect to a collective - bargaining agreement executed
on January 31, 1966
I find that by Buchanan ' s statements to
owner-operators Neal and Smith and to management
representatives of Atkinson and Barker and by the
demands of Local 982 upon Atkinson and Barker
regarding their collective -bargaining agreements, and by
Buchanan 's inducement of Atkinson 's loader operator to
cease loading Neal's truck and by the picketing of the
project by Local 982, Local 982 threatened , coerced, and
restrained Neal, Smith , Atkinson , and Barker, and by
Buchanan ' s inducement of Atkinson ' s loader operator to
cease loading Neal's truck and by the picketing of the
project by Local 982, said Union has induced and
encouraged employees of Atkinson and Barker to engage
in a strike or a refusal to perform any services, and that
said acts by Local 982 and its agent Buchanan were
committed for the objects of forcing or requiring
owner-operators Neal, Mather , Smith , Yontz, White and
Silva to join a local Teamster Union , and of forcing or
requiring Atkinson and Barker to maintain , reaffirm and
give effect to provisions of collective bargaining
agreements (discussed in subsequent paragraphs ), and to
cease doing business with said owner -operators.
C. Sears, Roebuck and Company Project
On the Sears project in October, 1965, Lancaster
Paving Company was engaged in excavation work under a
subcontract with Cal-West Construction Company, a
concrete contractor . In the performance of this work, it
used a "955 loader" and two dump trucks on the jobsite;
one dump truck was owned by Lancaster and operated by
a Lancaster employee, the other was furnished and
operated by Donald Chick, a partner in Chick's Trucking
Company. At no time material herein has Chick's
Trucking Company been signatory to or otherwise subject
to a collective -bargaining agreement with any labor
organization.
On October 25, 1965, Bob Stanley and Bill Stanley,
representatives and agents of Local 606, came to the
jobsite . Bob Stanley asked Chick if he belonged to the
Teamsters. Chick replied that he did not , and Stanley told
him that he could not work on the job unless he belonged
to Teamster Local 606.
Bill Stanley threatened Lancaster with closing down the
Sears project unless Chick was removed from the project.
Bill Stanley and Bob Stanley also threatened Cal-West
with picketing the project and with closing it down unless
Chick was removed from the project. Henry Magg,
superintendent or foreman for Cal- West Construction
Company, told Chick , in the presence of Bob Stanley,
that if he did not leave the job and get the truck off the
project , the Teamster agent would shut the entire job
down . On the following day Chick returned to the jobsite,
but the loader refused to load him.
By the statements of Bill and Bob Stanley to Lancaster
and Cal-West, Local 606 has threatened , coerced and
restrained Lancaster and Cal - West for an object of forcing
or requiring Lancaster and Cal -West to cease doing
business with Chick ' s Trucking Company General
Contractor Hahn was not approached by representatives -
of Local 606 on the matter . I find no basis for finding ;
that the above described conduct of Local 606 was for an,
object of forcing or requiring Hahn to cease doing
business with his subcontractors.
D. Highway 10 Project
In connection with the widening of Highway 10,
General Contractor Kasler contracted with Underwood &
Payne Dump Truck Service to furnish trucks and drivers
on an hourly rate basis Underwood' s operations are
similar to those of Barker in that he owns trucks - three
at the times involved herein - and hires employees to
operate them , and also serves as a broker for
owner-operators of dump trucks . Approximately 400 to
500 owner-operators have subhaul contracts with
Underwood The method of payment to owner-operators -
is the same as that followed by Barker.
In November 1965, Underwood began furnishing trucks
and drivers to Kasler on Project 10 He sent two of his
own trucks with employee-operators and also referred
approximately 23 or 24 subhaulers, including
owner-operators George Silver and Marvin Newton, at
various times during the construction on the project.
On or about December 16, 1965, Bill Stanley,
representative of Local 606 and Joint Council , demanded
that Kasler and Underwood maintain, reaffirm and give
effect to their collective-bargaining agreements with Local
606 and the Joint Council.
At or about the same time, he told owner - operator
Silver that he had to join Local 606, otherwise he could
not work on Project 10.
Also, he threatened Kasler and individuals employed by
Kasler with causing work stoppages at Project 10, and
threatened Underwood with picketing of the project.
Kasler and Underwood then ceased using the services of
owner-operator Silver and Newton, and since on or about
December 16, 1965, Kasler and Underwood and Local 606
and Joint Council have maintained , reaffirmed and given
effect to the provisions of their collective-bargaining
agreements
ffhd that by Stanley 's demands upon Kasler and
Underwood regarding their collective -bargaining
agreements , and his statements to owner-operator Silver
and,rto Kasler and Underwood , Local 606 and Joint
Council have threatened , coerced and restrained Silver,
Newton, Kasler and Underwood , and by Stanley's
statements to individuals employed by Kasler, Local 606
and Joint Council have induced and encouraged
individuals employed by Kasler to engage in a strike or a
refusal in the course of their employment to perform any
services, and that said acts were committed for the objects
of forcing or requiring owner-operator Silver and Newton
to join a local Teamster Union , and of forcing or
requiring Lancaster and Cal-West to maintain , reaffirm
and give effect to provisions of collective -bargaining
agreements (discussed in subsequent paragraphs ), and to
cease doing business with said owner - operators
GENERAL TEAMSTERS, LOCAL 982 529
E. The Status of the Owner- Operators
All the owner-operators involved herein drive dump
trucks as proprietors thereof on an hourly rental basis
under substantially the same relations with a so-called
broker and with the contractor who uses the services of
the truck and driver. Each broker has subhaul
arrangements with many owner-operators, with the
number being in the hundreds in some instances; and each
owner-operator has subhaul arrangements with
approximately 25 or 30 truck brokers.
Normally an owner-operator owns the truck he
operates, and has his name on the truck; he pays for and
has issued in his name all permits and insurance required,
and pays all maintenance and operating costs on the
truck He calls the brokers or they call him regarding
employment opportunities, and he is free to accept or
reject them. He may hire a substitute to drive his truck in
which event he pays the substitute as his employee When
he arrives at a jobsite he works under the direction and
will of the contractor who is renting the service.
Companies who serve as truck brokers also rent their
own trucks to contractors and these trucks are operated
by employees of the broker. The hourly rental fee paid by
a contractor is the same whether the truck is owned by
the broker and operated by his employee or whether it is
owned and operated by an owner-operator. In each
situation the relations of the operator of the truck and the
contractor renting the manned unit are the same during
the rental period. The contractor may discontinue the
rental of a truck and operator at any time he is
dissatisfied with the service by the unit.
The contractor's rental arrangement is with the broker
and all rental fees are paid to him. As mentioned
elsewhere in this Decision the broker keeps 5 percent as
his commission; he deducts 1 1/2 percent for the
California Transportation Tax payable to the State Board
of Equalization, and he deducts 1/3 percent for the State
Public Utilities Commission tax The remainder he pays
to the owner-operator by the 20th of the following month,
and it is payable at that time irrespective of whether he
has received the rental payments due from the contractor.
This is in accordance with regulations of the State Public
Utilities Commission, which also prescribes the minimum
hourly rates for rental of manned equipment. Employees
of the broker who operate equipment of the broker are
paid wages by his employer, the broker, in accordance
with the broker's collective-bargaining agreement with one
of the Respondent Unions
As previously mentiuned the owner-operators involved
herein are not members of any Teamster union, nor do
they have any contract with any Teamster union . ...,'i
Respondents contend that the owner-operators ► ;.are
"employees," as they are not employers and as,)ithey
perform the same work as employee-operators,,, and
operate under the same relations with and controls of the
contractor renting the manned trucks, and as their
relations with the brokers are quite similar to those of
employee-operators hired by the truck brokers.
In spite of similarities, I find that the owner-operators
are "self-employed persons," or independent contractors,
with substantial financial investments in trucking
equipment, and sell the services of their trucking
equipment and themselves as operators thereof.
The collective-bargaining agreement applicable to all
employers and respondent unions herein, the Master
Labor Agreement, recognizes the status of
owner-operators, and contains the following article on
them:
ARTICLE XIX
Owner-Operator
1901. An owner-operator is a person who has legal
or equitable title to his equiment [sic] and operates the
equipment himself
1902. Owner-operators shall display the registration
of their equipment to the Contractor and the Union
upon request.
1903. When a truck or piece of equipment is driven
or operated by its owner as an independent contractor
and is used on jobsite work covered by this Agreement,
the owner-driver or operator of said truck, or piece of
equipment shall receive a rate of pay not less than that
specified in this Agreement. Such operator shall be, and
remain, a member in good standing of the Union and
shall have a valid current clearance from the Local
Union covered by this Agreement having area
jurisdiction.
1904. There shall be established a special committee,
jointly composed of four representatives of the Union
and four representatives of the Contractors, prior to
September 15, 1965, for the purpose of resolving the
Owner-Operator problem. The Union shall have the
right to take economic action solely in support of their
position on Owner-Operator after August 15, 1967 if by
that date the problem has not been resolved to the
satisfaction of both parties.
The Master Labor Agreement also contains the
following section:
307. [Article III, Classifications] The Contractor
agrees that all work covered by this Agreement shall be
performed by workmen who, the Contractor and the
Union agree, are employees of the Contractor, or
subcontractor, and that both the Contractor and the
subcontractors shall employ such employees under the
terms of the appropriate labor agreement covering the
work involved.
There appears to be some inconsistency between section
307 and section 1903, but the latter section is quite clear
that owner-operators may operate their equipment "on
jobsite work covered by this Agreement," providing such
operator is a member in good standing of a local
Teamster union. Furthermore, the complaints expressed
by the union representatives herein were that the drivers
were not union members - not that they were
non-employees, or that their work should be performed by
employees. Respondents in their brief call attention to the
existence of a problem in the practice of contractors of
"substituting the services of [owner]-operators for the
services of the members of the Respondent Union;" and
that the Unions were seeking to regulate this practice or
problem "by requiring the [owner]-operators to be
members of the Respondent Unions" and that this "is
what gave rise to the instant matters."2
'The instant case is distinguishable on its facts from the McCormick,
Inc case, 159 NLRB 383, wherein the collective-bargaining agreement
provided that "leased equipment shall be operated by an employee " In
that case the contract clauses in question sought to protect bargaining unit
work and standards against erosion from subcontracting and were not
aimed at achieving secondary objectives tied to union interests outside the
unit
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. The Master Labor Agreement appropriate union, or subordinate body, affiliated with
the Building and Construction Trades Department,
AFL-CIO, or with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or an affiliate thereof. This sub-paragraph
shall apply only to vendors and shall not be applicable
to Contractors or their subcontractors or to their
employees. Jobsite fueling by vendors shall not be
covered by this sub-paragraph 104.2 where
economically not feasible or practical, provided that the
actual fueling of the Contractor's or subcontractor's
equipment is performed by employees of the craft
operating such equipment or where such fueling is
performed in any other manner as may be agreed upon.
105. The Contractor and his subcontractors shall
have freedom of choice in the purchase of materials,
supplies and equipment, save and except that every
reasonable effort shall be made by the Contractor and
his subcontractors to refrain from the use of materials,
supplies or equipment, which use will tend to cause any
discord or disturbance on the project.
(b) Contract sections pertaining to subcontracted work
to be performed at the jobsite, and the "self-help" clauses:
102.3.1. The Contractor agrees that he, or any of his
subcontractors on the jobsite, will not contract or
subcontract work to be done at the site of construction,
alteration, painting, or repair of a building, structure,
or other work, except to a person, firm or corporation
party to an appropriate, current labor agreement with
the appropriate union , or subordinate body, affiliated
with the Building and Construction Trades Department,
AFL-CIO, or with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or an affiliate thereof.
102.3.2. A subcontractor, for purposes of this
Agreement, with the exception of the general provision
immediately above, is defined as any person, firm or
corporation that agrees under contract with the
Contractor, or his subcontractors, to perform any work
covered by this Agreement, and who employs workmen
as employees to perform services covered by this.
Agreement, including the performance of labor, or the
furnishing and installation of material, or the operation
of equipment. All employees of subcontractors will
perform work at the appropriate hourly rate and will be
reported to such trust funds as are required by the
Agreement.
102.3.3 All work performed by the Contractor, or
subcontractors, and all services rendered for the
Contractor, or subcontractors, shall be rendered in
accordance with each and all of the terms and
provisions hereof.
102.3.4. If the Contractor, or subcontractors, shall
subcontract jobsite work covered under the jurisdiction
of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
including the furnishing and installation of materials,
performance of labor, or the operation of equipment,
provision shall be made in writing for the observance
and compliance by the subcontractors with the full
terms of this Agreement.
102.3.5. The Trustees, through the administrative
office of the appropriate Health and Welfare and
Pension Funds, shall advise each Association party to
this Agreement and the Union of the current,
delinquent accounts.
General Contractors Atkinson and Kasler, the Southern
California Chapter of the Associated General Contractors
of America, and Respondents Local 982, Local 606 and
Joint Council are parties to a collective-bargaining
agreement entered into on July 1, 1965, known as the
Master Labor Agreement, effective to May 1, 1968.
Following the actions of Respondent Local 982 described
above in paragraph B, and since on or about December 9,
1965, Atkinson and Local 982 have maintained,
reaffirmed and given effect to said agreement. Following
the actions of Respondents Local 606 and Joint Council in
paragraph D and since on or about December 16, 1965,
Kasler, Local 606 and Joint Council have maintained,
reaffirmed and given effect to said agreement.
The General Counsel contends that certain provisions
of the Master Labor Agreement are "secondary," and
that certain of them violate Section 8(e) of the Act as they
do not comply with the "on-site" requirement, and that
these provisions and other provisions that do comply with
this requirement violate Section 8(e) of the Act because of
"self-help" clauses sanctioning economic enforcement of
the contract provisions.' Respondents' general contention
is that the subcontract clauses involved are primary in
purpose.
Pertinent clauses of the Master Labor Agreement are
quoted:
(a) Contract sections pertaining to subcontracted work
that is not to be performed "on-site."
102.2. All work performed in the Contractor's
warehouses, shops or yards, which have been
particularly provided or set up to handle work in
connection with a job or project covered by the terms
of this Agreement, and all of the production or
fabrication of materials by the Contractor, or
subcontractor, for use on the project shall be subject to
the terms and conditions of this Agreement.
104.1. So far as it is within the control of the
Contractor or his subcontractors, all materials, supplies
and equipment used on the job shall be transported to
or from the site of the work by workmen covered by a
collective bargaining agreement with the appropriate
union. Nothing herein contained shall be construed to
prohibit the normal delivery of freight by railroad.
104.2. A vendor, who makes deliveries of material,
supplies or equipment and, who incidental to or as a
part of the furnishing or delivery of material, supplies
or equipment, does any work at the jobsite, shall be a
party to a current collective bargaining agreement with
the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
one of its affiliates. In the event a vendor is not party
to such an agreement, he shall not perform any jobsite
work except that deliveries may be made by such
vendor to central storage areas, or storage tanks, for
later distribution by employees covered by an
appropriate, current labor agreement with the
'The owner-operators on Project 99 hauled granite from a loader at a
granite pit "on top of the hill" down to the highway and then down the
highway for about three miles to the place of the new construction The
General Counsel stated that whether this work of the owner -operators was
or was not done at the jobsite is not in issue. There is no evidence as to the
area or boundaries of the worksite The loader was operated by employees
of General Contractor Atkinson . I conclude and find that the work done
by the owner-operators for Atkinson on Project 99 was done at the
worksite.
' GENERAL TEAMSTERS, LOCAL 982 531
102.3.5.1. The tenth calendar day after such notice is
sent by the administrative office, the General
Contractor shall become financially responsible for all
delinquent fringe-benefit payments that accrued on his
job after the ten-calendar-day-notice period for
payments owed by any subcontractor. The Contractor
may terminate the subcontract of said delinquent
subcontractor, or subcontractors, thereby limiting his
liability, on that job, to the period from the eleventh
day after such notice is sent by the administrative office
to the termination of such subcontract on that job.
102.3.5.2. Where a Contractor contracts with a listed
delinquent subcontractor, or subcontractors, the
Contractor may terminate the subcontract of such
delinquent subcontractor, or subcontractors, thereby
limiting the Contractor's liability, on that job, to the
period from the commencement of the work under the
subcontract to the date of termination of that
subcontract.
102.3.5.3. The Union may give written notice to a
listed delinquent Contractor, or subcontractor, (with a
copy to the General Contractor) to pay the delinquent
amounts due all trust funds. Within five days from the
giving of such notice, the Union shall withhold service
from any or all jobs of such delinquent Contractor, or
subcontractors, if proper payment is not made.
102.3.5.4. Where the General Contractor fails or
refuses to make any payments required under the above
provisions, the Union shall have the right to withhold
service from any or all jobs of such General
Contractor.
102.3.5.5. Where there is no General Contractor on
the jobsite, the right to withhold service by the Union
shall apply to the project as a whole.
102.3.5.6. Any such action in accordance with the
foregoing subparagraph 102.3.5.5. shall not be
considered a strike or work stoppage within the terms
of this Agreement. This provision shall apply to any
Contractor, or subcontractor, on any jobsite operation
under any change of name or association or joint
venture, including any person who may have been a
principal financially associated with the Contractor, or
subcontractor, who was delinquent in said payments
and with regard to which delinquency the notice
required has been given.
102.3.6. The Trustees of the respective trust funds
shall be instructed to comply with these provisions and
the parties agree to make any amendments' in the
respective trust agreements necessary to accomplish the
above.
tiUJ
on,
403. [article IV, Strikes - Lockouts -
Jurisdictional Disputes ] If a signatory Contractor' is
performing work on a project as a subcontracof;^
during the construction of which such project is
declared to be unfair by a Building and Construction
Trades Council or by the Joint Council of Teamsters
No. 42 and the work thereon is stopped for that reason,
neither the Council nor Joint Council of Teamsters No.
42 shall be deemed to have violated this Agreement if,
during the period of said stoppage of work, the
employees fail to perform their work on said project for
the Contractor
(c) Other pertinent contract section:
201. [article II, Union Recognition ] The Contractors
hereby recognize the Union as the sole and exclusive
collective bargaining representative of all employees of
the Contractors signatory hereto over whom the Union
has jurisdiction , as such jurisdiction was defined by the
Building and Construction Trades Department of the
AFL-CIO as of December 1, 1957. It is understood
that the Union does not at this time , nor will it during
the term of this Agreement , claim jurisdiction over the
following classes of employees : executives, civil
engineers and their helpers, superintendents , assistant
superintendents , master mechanics , timekeepers,
messenger boys, office workers or any employees of the
Contractors above the rank of craft foreman.
Conclusions as to the Master Labor Agreement
The Master Labor Agreement is designed to regulate
the wages and conditions of employment of employees of
signatory employers classified as drivers of dump trucks
and drivers of other vehicles and related classifications.
Any subcontracting clause or other clause in the
agreement that has as its purpose the preservation of the
job opportunities and working conditions of these
employees is "primary," and not encompassed by Section
8(e) of the Act, although a side effect may be a restriction
on subcontracting; however, if the purpose of such clause
or clauses are to satisfy a union objective elsewhere and to
regulate the labor relations of employers other than the
signatory employers, then it is "secondary" and falls
within the purview of Section 8(e) of the Act.4
Section 8(e) of the Act prohibits subcontracting and
"hot cargo" agreements that seek to control or dictate the
labor relations of other employers; however, an exception
is made in the case of agreements between a labor
organization and an employer in the construction industry
relating to work to be done at the jobsite. A further
qualification to this exception exists in the final proviso to
Section 8(e), which states that "nothing in this Act shall
prohibit the enforcement of any agreement which is within
the foregoing exception." This has been interpreted as
sanctioning judicial enforcement only. Where the
agreement specifies that secondary subcontracting or hot
cargo clauses may be enforced by economic actions,
commonly called "self-help," then the agreement violates
Section 8(e) of the Act.'
Thus, first, it must be determined herein whether the
work covered in contract sections 102.2, 104.1, 104.2 and
105, set forth in subparagraph (a) above, constitutes work
or job opportunities belonging to employees of signatory
employers.' In the event a clause is found to be secondary
and, therefore within Section 8(e), then it must be
determined whether it falls within the construction proviso
and the enforcement proviso to that section; that is,
whether it relates to "on-site" work and whether or not
"self-help" enforcement is specified.
Section 102.2, covering "all of the production or
fabrication of materials" by subcontractors, is clearly
afield of job opportunities of employees of signatory
employers, and Section 8(e) is applicable. It does not
comply with the construction industry proviso thereto in
that it covers off-site work; therefore, this part of section
'National Woodwork Mfgrs Assn v N L R B, 386 U.S. 612, Houston
Insulation Contractors Assn Y N L R B. 386 U.S. 664
'Ets-Hokin Corp, 154 NLRB 839, Muskegon Bricklayers Union No 5,
152 NLRB 360.
'Orange Belt District Council of Painters No 48 v. N L R B, 328 F 2d
534 (CADC)
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
102.2 violates Section 8(e) of the Act.7
Section 102.2 also covers "all work performed in the
Contractor's warehouses, shops or yards" in connection
with a project covered by the Agreement and "all of the
production or fabrication of materials by the Contractor"
for use on the project. It is seeking herein to cover not
only job opportunities of employees in the bargaining unit,
but also those of the production and maintenance
employees and other employees of signatory employers.
Since this involves employees of the signatory employer, it
is primary, and not within Section 8(e) of the Act, and the
"on-site" requirement of the construction industry proviso
is not applicable.
Section 104.1 covers employees of subcontractors
engaged in the transportation of materials, supplies, and
equipment to or from the jobsite and requires that they be
under a bargaining contract "with the appropriate union "
The Respondent Unions are seeking to protect truck
driving job opportunities for union members in general;
job opportunities for employees in the bargaining unit are
not involved and is not an objective. It is secondary in
purpose and therefore within Section 8(e) of the Act. It
does not comply with the construction industry proviso as
it relates to off-site work, and it therefore violates Section
8(e).
Section 104.2 is the same as section 104.1 in so far as it
relates to deliveries of materials, supplies or equipment to
the jobsite by employees of vendors, and this includes the
restriction or regulation of place of delivery at the jobsite,
as this is the "final act of the delivery process" and not
work at the jobsite.' It, therefore, violates Section 8(e).
This section, however, also covers "on-site" work by
employees of vendors, and to this extent it complies with
the construction industry exception to Section 8(e), but, as
the agreement provides for enforcement of this section by
economic action, as will be pointed out in the discussion
of subsequent sections of the agreement, it violates the
final proviso to Section 8(e).
Section 105, in seeking to have the signatory employers
refrain from the use of materials, supplies or equipment
that would tend to cause any discord or disturbance on
the project, is seeking to promote union objectives
elsewhere than among employees of signatory employers
or at the jobsites involved herein. It is secondary; it does
not comply with the construction industry proviso to
Section 8(e); it therefore violates that section.
Sections 102.3.1 through 102.3.6, in subparagraph (b)
above, all pertain to the subcontracting of work to be
done at the jobsite. They are secondary and comply with
the construction industry proviso in Section 8(e); however,
the self-help provisions contained therein and in section
403 of the agreement permitting the Union to withhold
services where contract sections have been violated, render
the subcontracting clauses of the agreement illegal because
of the failure to comply with the enforcement proviso to
Section 8(e) of the Act
Also, the clauses quoted in subparagraph (a) above
which violate the "on- site" requirement of Section 8(e),
again violate Section 8(e) because of the "self-help"
clauses.
G The Short Form Agreements
Contracts between Barker and Local 982: From on or
about May 1, 1959 until on or about January 31, 1966,
Barker and Local 982 have been parties to a
"Construction Short Form Agreement," and following the
actions of Local 982 described above in paragraph B, and
since on or about December 9, 1965, Barker and Local
982 have maintained, reaffirmed and given effect to said
agreement. The General Counsel contends that Section
8(e) of the Act is violated by the following clauses
ARTICLE II
A. The parties hereto agree to be bound by all the
terms and conditions of the multiple-employer Labor
Agreement, including all supplemental agreements
thereto, between the Southern California Chapter of
Associated General Contractors of America, and/or
others, effective as of May 1, 1957, and all renewals,
changes or modifications, thereof entered into between
the Association and the Union thereafter, except as
such agreement may be specifically modified herein,
and except that the provisions of Article IV, Article V
and Article VI of the aforesaid Agreement shall not be
a part hereof.
ARTICLE III
It is agreed that no workman covered by the terms
of this Agreement need work under any conditions
which may be or tend to be detrimental to his health,
morals, or reputation or cross any picket line , or enter
any premises at which there is a picket line authorized
by the Joint Council of Teamsters No 42 or authorized
by any A.F. of L. Central Labor Council or handle,
transport or work upon or with any product on the
"We Do Not Patronize List" of such councils. The
Contractor hereby expressly instructs his employees not
to cross any such picket line, enter any such premises
or handle, transport, or work on any such products
ARTICLE V
Nothing contained in this Agreement, expressly or by
implication, shall in any way limit or modify the right
of the Union to enforce this Agreement by means of
legal or economic procedures.
On or about January 31, 1966 Barker and Local 982
entered into a collective-bargaining agreement, known as
the "Southern California Teamsters Construction Short
Form Agreement." The General Counsel contends that
Section 8(e) of the Act is violated by the following
clauses:
ARTICLE II
'District 9. 1AM v, N L R B (Greater St Louis Automotive Assn, Inc.
315 F 2d 33 (C A D C ), Teamsters . Chauffeurs, Warehousemen and
Helpers Local No 631 (Reynolds Electrical and Engineering Co, Inc ).
154 NLRB 67
IN L R B v International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 294. (Island Dock Lumber,
Inc ). 342 F.2d 18 (C.A 2)
A. The parties hereto agree to be bound by all the
terms and conditions of the multiple-employer Labor
Agreement , including all supplemental agreements
thereto, between the Southern California Chapter of the
Associated General Contractors of America, and
others, and the Union , entered into as of August 1,
GENERAL TEAMSTERS , LOCAL 982
1965 for application in the counties of Inyo, Mono,
Kern, Santa Barbara, San Luis Obispo, Los Angeles,
Orange, Riverside, San Bernardino, Ventura, and
Imperial, and all renewals, changes, or modification,
thereof entered into between the Association and the
Union thereafter, except as such agreement may be
specifically modified herein, and except that the
provisions of Article IV, exclusive of Paragraph 403,
thereof, and Article V, exclusive of Paragraph 501,
thereof, of the aforesaid agreement shall not be a part
of this Agreement.
ARTICLE III
A. It shall not be a violation of this Agreement, and
it shall not be cause for discharge or disciplinary action
in the event an employee refuses to enter upon any
property involved in a labor dispute, or refuses to go
through or work behind any picket line, including the
picket line of Unions party to this Agreement, and
including picket lines at the Employer's places of
business.
ARTICLE V
Nothing contained in this Agreement, expressly or by
implication, shall in any way limit or modify the right
of the Union to enforce this Agreement by means of
legal or economic procedures.
Contract between Underwood and Local 606 and Joint
Council: Since on or about February 1, 1964, Underwood,
Local 606 and Joint Council have been parties to a
"Southern California Teamsters Construction Short Form
Agreement," and following the actions of Respondents,
described above in paragraph D and since on or about
December 16, 1965 Underwood, Local 606 and Joint
Council have maintained, reaffirmed and given effect to
said agreement. The General Counsel contends that
Section 8(e) of the Act is violated by the following clauses
thereof:
ARTICLE II
A. The parties hereto agree to be bound by all the
terms and conditions of the multiple-employer Labor
Agreement, including all supplemental agreements
thereto, between the Southern California Chapter of the
Associated General Contractors of America, and
others, and the Union, effective as of May 1, 1959, for
application in the Counties of Inyo, Mono, Kern, Santa
Barbara, San Luis Obispo, Los Angeles, Orange,
Riverside, San Bernardino, Ventura and Imperial; and
all renewals, changes or modification, thereof entered
into between the Association and the Union thereafter,
except as such agreement may be specifically modified
herein, and except that the provisions of Article IV,
Article V and Article VI of the aforesaid Agreement
shall not be a part hereof.
ARTICLE III
533
A. It is agreed that no workman covered by the
terms of this Agreement need work under any
conditions which may be or tend to be detrimental to
his health, morals, or reputation or cross any picket
line, or enter any premises at which there is a picket
line authorized by the Joint Council of Teamsters No.
42 or authorized by any A.F. of L. Central Labor
Council or handle, transport or work upon or with any
product on the "We Do Not Patronize List" of such
councils. The Contractor hereby expressly instructs his
employees not to cross any such picket line, enter any
such premises or handle, transport, or work on any
such products.
B. Regardless of any of the terms and conditions of
this Agreement, or the multi-employer agreement
referred to above, any person, firm or corporation
performing any transportation or other work on the site
of any construction project covered by this Agreement
shall be considered a contractor or sub-contractor for
the provision of this section and contractor agrees to
cease or refrain from handling, using, selling,
transporting or otherwise dealing in any of the products
or services of such employer upon notice from the
Union that such person, firm, or corporation does not
have a valid collective bargaining agreement with the
Union. Upon such notice, contractor expressly instructs
his employees not to handle, use, sell, transport, or
otherwise work on any products or services of such
employer. For the purposes of this Agreement the
construction site shall include any facilities which have
been particularly provided or set up to handle work in
connection with a job or project covered by this
Agreement.
*
ARTICLE V
Nothing contained in this Agreement, expressly or by
implication, shall in any way limit or modify the right
of the Union to enforce this Agreement by means of
legal or economic procedures.
Conclusions as to the Short Form Agreements
Each of the short form agreements referred to above
incorporates all of the sections of the Master Labor
Agreement quoted in paragraph F except for section 401,
which is in Article IV, Strikes, Lockouts, Jurisdictional
Disputes. Section 401 is one of the "self-held" sections in
the Master Labor Agreement; but Articles III and V in
each of the short form agreements specify that economic
procedures may be resorted to for enforcement of the
terms of the Agreement, and where an authorized picket
line exists and where work or a product is on a recognized
"do not patronize list."
In so far as the "self-help" clauses in the short form
agreements provide for enforcement of "secondary"
clauses incorporated therein from the Master Labor
Agreement, this constitutes a failure to comply with the
enforcement proviso in Section 8(e) and renders the
secondary subcontracting and boycotting clauses in the
agreements illegal.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondents, set forth in section
III, occurring in connection with the operations of the
Employers described in section I, have a close, intimate
and substantial relation to trade, traffic and commerce
among the several states, and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow thereof.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I made the following-
CONCLUSIONS OF LAW
1. Atkinson, Barker, Hahn, Cal-West, Lancaster,
Chick's Trucking Company, Kasler , Gordon H. Ball
Enterprises, E. L. Yeager Construction Company and
Respondent Underwood are employers engaged in
commerce and in a business affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Respondents Local 982, Local 606 and Joint Council
are labor organizations within the meaning of Section 2(5)
of the Act.
3. By inducing and encouraging employees of Atkinson
and Barker to engage in a strike or a refusal to perform
any services, and by threatening, coercing and restraining
owner-operators Neal and Smith and Contractors
Atkinson and Barker, for an object of forcing or requiring
owner-operators Neal, Mather, Smith, Yontz, White and
Silva to join a local Teamster Union, and for an object of
forcing or requiring Atkinson and Barker to maintain,
reaffirm and give effect to provisions of
collective-bargaining agreements prohibited by Section
8(e) of the Act, and to cease doing business with said
owner-operators, Respondent Local 982 has engaged in
unfair labor practices in violation of Section 8(b)(4)(i) and
(ii)(A) and (B) of the Act.
4. By entering into agreements with Atkinson and
Barker and the Southern California Chapter of the
Associated General Contractors of America whereby said
employers agree to refrain from doing business with
certain other persons, without complying with the provisos
in Section 8(e) of the Act, Respondent Local 982 has
engaged in an unfair labor practice in violation of Section
8(e) of the Act.
5. By threatening, coercing and restraining Lancaster
and Cal-West for an object of forcing or requiring
Lancaster and Cal-West to cease doing business with
Chick's Trucking Company, Respondent Local 606 has
engaged in an unfair labor practice in violation of Section
8(b)(4)(ii)(B) of the Act
6. By inducing and encouraging individuals employed
by Kasler to engage in a strike or a refusal in the course
of their employment to perform any services, and by
threatening, coercing and restraining Contractors Kasler
and Underwood and owner-operator Silver, for an object
of forcing or requiring owner-operators Silver and Newton
to join a local Teamster Union, and for an object of
forcing or requiring Kasler and Underwood to maintain,
reaffirm and give effect to provisions of
collective-bargaining agreements prohibited by Section
8(e) of the Act, and to cease doing business with said
owner-operators, Respondents Local 606 and Joint
Council have engaged in unfair labor practices in violation
of Section 8(b)(4)(i), (ii)(A) and (B) of the Act.
7. By entering into agreements with Kasler and
Underwood and the Southern California Chapter of the
Associated General Contractors of America whereby said
employers agree to refrain from doing business with
certain other persons, without complying with the provisos
in Section 8(e) of the Act, Respondents Local 606 and
Joint Council have engaged in an unfair labor practice in
violation of Section 8(e) of the Act.
8. By entering into a collective -bargaining agreement
whereby said Respondent Employer agrees to refrain from
doing business with certain other persons, without
complying with the provisions of Section 8(e) of the Act,
Respondent Underwood has engaged in an unfair labor
practice in violation of Section 8(e) of the Act.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
10. Respondent 606 has not engaged in the conduct
described above in paragraph 5 for an object of forcing or
requiring General Contractor Hahn to cease doing
business with its subcontractors on the Sears project.
THE REMEDY
Having found that Respondents have engaged in unfair
labor practices in violation of the Act, I shall recommend
that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act. In view of the multiple incidents of violations found
herein and in view of the general use of the agreement
forms found to be illegal herein, I shall recommend a
broad order.
Upon the basis of the foregoing findings of fact and
conclusions of law and pursuant to Section 10(c) of the
Act, I issue the following:
[Recommended Order omitted from publication.]