Plumbers District Council 16 (Jamco Development)

National Labor Relations Board - Board Decisions

Nov 26, 1985

277 N.L.R.B. 1281 (N.L.R.B. 1985)

PLUMBERS DISTRICT COUNCIL 16 (JAMCO DEVELOPMENT)
Southern California . Pipe Trades District Council
No. 16, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada, AFL-
CIO; Local Union No. 761, United Association
of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States
and Canada,, AFL-CIO and Jamco Develop-
ment Corporation . Case 31-CE-130
26 November 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS, JOHANSEN, AND BABSON-
Upon a charge filed by Jamco Development
Corporation (Jamco or the Charging Party) on 8
May 1979, the General Counsel of the National
Labor Relations Board, by the Acting Regional Di-
rector for Region 31, issued a complaint and notice
of hearing on 27 June 1979 alleging that the Re-
spondent Unions' have engaged in and are engag-
ing in unfair labor practices affecting commerce
within the meaning of Sections 8(e) and 2(6) and
(7) of the National Labor Relations Act. Copies of
the charge and the complaint and notice of hearing
before an administrative law judge were served on
the parties to this proceeding. Thereafter, the Re-
spondents filed a timely answer to the complaint,
admitting certain 'factual allegations, denying
others, and denying the commission of any unfair
labor practices.
The complaint alleges that the Respondents have
committed unfair labor practices by entering into,
giving effect to, and enforcing an agreement pro-
scribed by Section 8(e) of the-Act. The complaint
specifically challenges the Respondents for invok-
ing the grievance and arbitration provisions of their
collective-bargaining agreement, with Jamco be-
cause of an alleged breach of the union signatory
subcontracting clause. What is claimed to make
that action unlawful is the contract's "self-enforce-
ment" provision, permitting the Respondents to
take economic action against Jamco for failure to
comply with any award rendered or settlement
reached in the dispute.
On 18 February 1980 the Respondents, the
Charging Party, and the General Counsel entered
into a motion to transfer this proceeding to the
Board and a stipulation of facts. The parties agreed
that certain formal papers filed in this proceeding
' Southern California Pipe Trades District Council No. 16, United As-
sociation of Journeymen and Apprentices of the Plumbing and Pipefittmg
Industry of the United States and Canada, AFL-CIO (District Council),
and Local Union No. 761, United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of the United States
and Canada , AFL-CIO (Local 761)
1281
and stipulation of facts, together with exhibits at-
tached thereto, constitute the entire record in this
case. The 'parties waived a hearing before an ad-
ministrative law judge, the making, of findings of
fact and conclusions of law by an administrative
law judge, and the issuance of an administrative
law judge's decision. They submitted this proceed-
ing directly to the Board for findings of fact, con-
clusions of law, and the entry of an appropriate
order. By order dated 10 April 1980 the Board
granted the motion, approved the stipulation of
facts, and transferred this proceeding, to the Board.
Thereafter, the General Counsel, the Charging
Party, and the Respondents filed briefs.
The Board has considered the entire record, as
stipulated, and the parties' briefs, and makes the
following findings and conclusions.
1. THE BUSINESS OF THE EMPLOYER
Jamco, a California corporation with an office
and principal place of business in Beverly Hills,
California, is now and has been at all times material
herein, an owner-developer in the construction in-
dustry. In the course and conduct of its business
operations, Jamco annually derives gross revenues
in excess of $500,000 and purchases and receives
goods or services valued in excess of $50,000 from'
sellers or suppliers located within the State of Cali-
fornia which, in turn, receive such goods or serv-
ices in substantially the same form directly from
outside the State of California.
The parties stipulated and we find that Jamco is
now, and has been at, all times material herein, an
employer engaged in commerce and in a business
affecting commerce with the meaning of Section
2(6) and (7) of the Act. We find further that it will
effectuate the purposes of the Act to' assert juris-
diction in this case.
II. THE LABOR ORGANIZATIONS INVOLVED,
The parties stipulated and we find that Respond-
ent District Council and Respondent Local 761 are
now, and have been at all times material herein,
labor organizations within the meaning of Section
2(5) of the Act. '
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Stipulated Facts
On or about 19 December 1977 Jamco and Re-
spondent District Council, on behalf of employees
represented by its affiliated locals including Re-
spondent Local 761, entered into a collective-bar-
gaining agreement entitled "The Southern Califor-
nia Pipe Trades Agreement." The agreement was
effective from 1 July 1977 through 30 June 1980.
277 NLRB No. 128
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section XIII of this agreement sets forth a multi-
step grievance procedure and provides, inter alia,
for the rendering of a "final decision" in all dis-
putes arising under the contract by a Joint Arbitra-
tion Board. Section XIV governs the composition
of the Joint Arbitration Board and enumerates its
powers and duties. Also relevant in this proceeding
are the following provisions:
Section III, Work Covered
12. No contractor shall subcontract work to
be done on job site covered by this Agreement
to any Employer who is not signatory to this
Agreement and/or the Independent Plumbing
and Piping Industry Council Agreement, or
any National Agreement with the United As-
sociation excluding the Union Label Agree-
ment.
Section IX, Strikes and Lockouts
41. The Union shall refrain from any strike
or slowdown due to jurisdictional or other dis-
putes ... .
42. Despite the provisions of Paragraph 41,
the Unions may take any action they deem
necessary against any Contractor who has
failed, neglected or refused to comply with or
execute any settlement or decision reached
through the provisions of Sections XIII and
XIV of the Agreement. The Union shall have
the right to strike, picket, remove men or
engage in any economic activity in the event
the Employer fails to pay wages, fringe bene-
fits or fails to post the required bond.
On or about 13 October 1978 Respondent Local
761 initiated a complaint against Jamco, pursuant
to sections XIII and XIV of their agreement, for
breach of section III, paragraph 12, in connection
with the latter's activities at its Tierre Verde VIII
condominium project in Glendale, California.
It is admitted that, thereafter, the Respondents
have maintained, given effect to, reaffirmed, and
enforced their collective-bargaining agreement, in-
cluding section III, paragraph 12, in that: (a) on or
about 16 November 1978 and 1 March 1979 Re-
spondent Local 761 pursued its complaint against
Jamco by appearing before the Joint Arbitration
Board Subcommittee and the Joint Arbitration
Board, respectively; and (b) on or about 16 No-
vember 1978 and 1 March 1979 the Joint Arbitra-
tion Board found Jamco in violation of the agree-
ment, as claimed by Respondent Local 761, and as-
sessed damages against Jamco for wages and fringe
benefits. The parties agree that the Respondents
have not threatened or engaged in any economic
action against Jamco in connection with the above
grievance.
B. Contentions of the Parties
The General Counsel and, for the purposes of
this proceeding, the Charging Party, contend that
section III, paragraph 12, of the contract is clearly
secondary because it is not concerned with the
labor relations of employers party to the contract
but rather with union objectives elsewhere. Fur-
ther, the General Counsel and the Charging Party
contend that the protection this secondary clause
would otherwise enjoy under the construction in-
dustry proviso to Section 8(e)2 has been removed
by reason of section IX paragraph 42, which per-
mits the Unions to strike or employ other econom-
ic pressure to enforce the terms of the secondary
provision.
The General Counsel and the Charging Party
seek as a remedy for the violations here alleged
that the Respondents be prohibited from imple-
menting the proscribed clause, and additionally that
they be expressly ordered to refrain from giving
effect to or enforcing the Joint Arbitration Board
decisions and assessment of damages.
The Respondents, having denied the commission
of any unfair labor practices in their answer, have
apparently abandoned this defense in their brief.
Rather, they contend that, in effectuating the pur-
poses of the Act, any remedy for violations here
found should be directed solely to the offending
self-help provision, and that the award of the Joint
Arbitration Board, mentioned above, should be
permitted "to stand."3
C. Discussion and Conclusions
Section 8(e) of the Act declares it an unfair labor
practice for a labor organization and an employer
2 Sec 8(e) provides , in material part
(e) It shall be an unfair labor practice for any labor organization
and any employer to enter into any contract or agreement , express
or implied, whereby such employer ceases or refrains or agrees to
cease or refrain from handling , using , selling , transporting or other-
wise dealing in any of the products of any other employer, or to
cease doing business with any other person , and any contract or
agreement entered into heretofore or hereafter containing such an
agreement shall be to such extent unenforceable and void Provided,
That nothing in this subsection (e) shall apply to an agreement be-
tween a labor organization and an employer in the construction in-
dustry relating to the contracting or subcontracting of work to be
done at the site of the construction , alteration , painting, or repair of
a building, structure, or other work
3 Among the circumstances advanced in support of their contention,
the Respondents point to an arbitration award interpreting sec IX, par
42, as having no applicability in disputes arising under sec III , par. 12
No mention of this "award" is made in the parties ' stipulation of facts
Accordingly, we grant the motions of the General Counsel and the
Charging Party to strike those portions of the Union's brief, including
"Exhibit A," attached thereto, insofar as they refer to this "award," and
we shall proceed to a decision on the record before us
PLUMBERS DISTRICT COUNCIL 16 (JAMCO DEVELOPMENT)
to enter into a contract whereby the latter agrees,
inter alia , to cease doing business with any other
person. This section has been construed to reach
only secondary pressures by means of which a
labor organization seeks to further its aims by in-
volving an employer in disputes not its own. Sec-
tion III, paragraph 12, of the agreement here pro-
hibits an employer from subcontracting construc-
tion work to anyone who is not signatory to this
same agreement or to certain other specified union
agreements. Plainly, this clause does not merely
limit subcontracting to firms whose employees are
paid wages and fringe benefits equivalent to those
set forth in the agreement or otherwise protect the
integrity of or address the labor relations policies
of employers party to the agreement. Rather, the
clause in question requires such employers to boy-
cott the services of nonsignatory subcontractors in
order to influence the labor relations policies of
those subcontractors. The clause is therefore sec-
ondary and falls within the general prohibition of
Section 8(e).4
Section 8(e) is qualified by the construction in-
dustry proviso which exempts from its application
any agreement between a labor organization and an
employer in the construction industry relating to
the contracting of work to be done at a construc-
tion site. However, this exemption is not absolute.
The Board has held, with judicial approval, that
contractual provisions which authorize a union to
employ economic "self help" to enforce secondary
subcontracting clauses are not authorized by the
proviso to Section 8(e). Self-help provisions for en-
forcing voluntary secondary agreements violate
Section 8(e) in the construction industry even
though the self-help and subcontracting provisions
are in different articles of an agreement, the
remedy sought would be the same if achieved by
lawful judicial means, and the means of enforce-
ment reserved by the union are not strictly limited
to strikes and picketing.5
In the case before us, the restrictions against sub-
contracting set forth in section III, paragraph 12,
considered alone, come under the protection of the
8(e) construction industry proviso. However, they
are contractually linked to the grievance and arbi-
tration provisions set forth in sections XIII and
XIV. By recourse to these provisions, claims for
breach of the secondary subcontracting clause may,
as demonstrated by Respondent Local 761's action
with respect thereto, be submitted for settlement or
4 Operating Engineers Local 701 (Pacific Northwest Chapter, Associated
Builders), 239 NLRB 274 ( 1938), enfd 654 F 2d 1301 (9th Cir 1981) (en
bane), affd. in relevant part sub nom Woelke & Romero Framing v
NLRB, 456 U S 645 (1982)
5 See Pacific Northwest, supra at 277 , and the cases cited therein
1283
decision. Section IX, paragraph 42, specifically au-
thorizes the Respondents to "take any action they
deem necessary" to enforce compliance with "any
settlement or decision reached" through the griev-
ance and arbitration procedure, despite the general
"no strike-no lockout" provisions of section IX,
paragraph 41. Read together, sections XIII, XIV,
and IX, paragraph 42, thus sanction economic
action to ensure compliance with the secondary
subcontracting provisions of section III, paragraph
12. Accordingly, the self-help aspects of these sec-
tions do not share the protection otherwise afford-
ed section III, paragraph 12, under the construc-
tion industry proviso to Section 8(e). That there is
an intermediate stage before the Respondents may
resort to economic action, and that they have re-
frained thus far from economic action, is of no con-
sequence . The collective-bargaining agreement
allows the Respondents to employ "non judicial
acts of a compelling or restraining nature, applied
by way of concerted self help"6 for the enforce-
ment of a secondary provision. In these circum-
stances, we find that there is a violation of Section
8(e) to the extent that section IX, paragraph 42,
permits self-help enforcement of the otherwise
lawful section III, paragraph 12.
THE REMEDY
As previously stated, the parties differ signifi-
cantly over the appropriate remedy for the 8(e)
violation found here. The General Counsel and the
Charging Party contend that the relationship to
self-help provisions removes section III, paragraph
12, entirely from the protection of the construction
industry proviso. Consequently, they argue, the
subcontracting provisions are void and unenforce-
able even in grievance, arbitration, and judicial
proceedings. They also urge the Board to enjoin
the Respondents from any attempt to give effect to
or enforce the Joint Arbitration Board decisions
and assessment of damages.
On the other hand, the Respondents contend that
the arbitral award remains valid and that the
Board's remedial language should focus narrowly
on limiting the self-help provisions while leaving
the subcontracting provisions intact and enforcea-
ble by judicial means. We find this narrow ap-
proach to be a more precise and appropriate
remedy for the 8(e) violation found.
In Ets-Hokin Corp., 154 NLRB 839 (1965), the
Board found a violation of Section 8(e) because a
secondary subcontracting clause permitted by the
construction industry proviso was enforceable by
s Sheet Metal Workers Local 48 v Hardy, 332 F 2d 682, 686 (5th Cir.
1964)
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
self-help under a contract annulment clause in, the
parties' collective-bargaining agreement. In subse-
quent discussion the Board clarified the limits of
the violation found, as follows:
The "no subcontracting" contract provision
has the following aspects : a-prohibition against
subcontracting on a, building construction site,
and an annulment clause . The first of these we
have found to be lawful under the construc-
tion industry proviso to Section 8 (e); the
second we have ' found to be unlawful. These
two aspects are, however, severable. The
Unions had the right to insist , albeit not by
proscribed means, that the Employer subcon-
tract work only to IBEW subcontractors as re-
quired by the lawful part of the extant collec-
tive-bargaining contract . [154 NLRB at 846.]
In conformity with the above concept of sever-
ability , the Board 's order enjoined only "entering
into , maintaining , giving effect to, or enforcing the
termination . . . aspects of the subcontracting
clause found in their collective-bargaining agree-
ments, to the extent found unlawful herein." The
Board has consistently used variations of this
narrow remedial injunction when finding similar
8(e) self-help violations in construction industry
collective-bargaining agreements.7 In discussion
and analysis preceding the formal conclusions of
law, order, and notice , however, the Board has in
some cases used language subject to an interpreta-
tion contrary to the Ets-Hokin concept of severabil-
ity. For instance , in Pacific Northwest , supra at 277,
the Board stated that "clauses which purport to au-
thorize a union to employ economic action to en-
force secondary subcontracting provisions will
serve to remove whatever protections the second-
ary clause would otherwise enjoy under the provi-
so to Section 8(e)." (Footnote omitted.) See also
Operating Engineers Local 12 (Griffith Co.), 243
NLRB 1121 (1979).
In spite of such language arguably suggesting
that secondary clauses in construction industry col-
lective-bargaining agreements were void and unen-
forceable even by judicial means if they were sub-
ject to enforcement by contractual self-help meas-
ures, the United States Court of Appeals for the
Ninth Circuit appropriately relied on and enforced
the narrower language of the Board orders in both
' E g, Pacific Northwest, supra, 239 NLRB at 279 (The Board enjoined
"the self-help portion" of a contract " insofar as it is applied to the sub-
contracting clause to the extent found unlawful herein."), Operating
Engineers Local 701 (Lease Co.), 276 NLRB 597 (1985) (The Board en-
joined secondary owner-operator clauses of a contract "to the extent
found unlawful by reasons of the self-enforcement provisions ") Although
the narrow injunctive language is similar in the above-cited cases, we
find that the language in Pacific Northwest more accurately connotes the
sense of the unfair labor practice found
Pacific Northwest, and Griffith-8 In Griffith, the
Ninth Circuit expressly rejected an argument "that
because the self-help clause is invalid, the entire
[secondary] provision should be voided." It reiter-
ated prior holdings "that only that part of a con-
tract that exceeds the limits of the construction in-
dustry proviso is negated." 660 F.2d at 410.
To eliminate any ambiguity created by the afore-
mentioned overly broad language in prior Board
analyses of Section 8(e) self-help violations, we,-ex-
pressly agree with the Ninth Circuit and reaffirm
the Board's Ets-Hokin concept of severability.
Where self-help enforcement provisions apply to
secondary provisions in construction industry col-
lective-bargaining agreements , the former cannot
be protected under the proviso to Section-8(e), but
the-latter will not lose such protection and may be
enforced by judicial means . We 'find no' policy
reason under the' Act that would justify the invali-
dation of a lawful, voluntary bilateral agreement.
To the contrary, our narrow injunction against the
unlawful application of self-help provisions serves
multiple statutory policies by protecting parties'
freedom of contract, by promoting labor relations
stability, and by tailoring the Board's remedy to fit
the specific unfair labor practice found.
In accordance with the foregoing, we shall order
the Respondents to cease and desist from entering
into, maintaining , giving effect to, or enforcing the
self-help aspects of sections XIII, XIV, and IX,
paragraph 42, insofar as they apply to the subcon-'
tracting provisions of section III, paragraph 12. We
decline to order the invalidation of section III,
paragraph 12, or to enjoin the Respondents' at-
tempts to enforce in judicial forums the Joint Arbi-
tration Board awards based on section III, para-
graph 12.
CONCLUSIONS OF LAW
1. Jamco -Development Corporation is an em-
ployer engaged in, commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Respondent District Council and Respondent
Local 761 are labor organizations within the mean-
ing of Section 2(5) of the Act.
3. By entering into, maintaining, giving effect to,
or enforcing the self-help aspects of sections XIII,
XIV, and IX, paragraph 42, of the Southern Cali-
fornia Pipe Trades Agreement insofar as they
apply to the subcontracting provisions of section
III, paragraph 12, of the agreement, the Respond-
8 Pacific Northwest, supra; Griffith Co. Y. NLRB, 660 F.2d 406 (9th Cir
1981), cert. denied 457 U.S. 1105 (1982). See also NLRB V. Associated
General Contractors (Coast Construction Co.), 709 F.2d 532 (9th Cir 1983)
PLUMBERS DISTRICT COUNCIL 16 (3AMCO DEVELOPMENT)
ent labor organization violated Section 8(e) of the
Act.
4. The above unfair labor practice is an unfair
labor practice affecting commerce and the free
flow of commerce within the meaning of Section
2(6) and (7) of the Act.
ORDER
The National Labor Relations Board orders that
the Respondents, Southern California Pipe Trades
District Council No. 16, United Association of
Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and
Canada, AFL-CIO, Los Angeles, California, and
Local Union No. 761, United Association of Jour-
neymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and
Canada, AFL-CIO, Burbank, California, their offi-
cers, agents, and representatives, shall,
1. Cease and desist from entering into, maintain-
ing, giving effect to, or enforcing the self-help as-
pects of sections XIII, XIV, and IX, paragraph 42,
of the Southern California Pipe Trades Agreement
insofar as they apply to the subcontracting provi-
sions of section III, paragraph 12, of the agree-
ment.
2. Take the following affirmative action neces-
sary' to effectuate the policies of the Act.
(a) Post at their business offices and meeting
halls copies of the attached notice marked "Appen-
dix."s Copies of the notice, on forms provided by
the Regional Director for Region 31, after being
signed by the Respondents' authorized representa-
tives, shall be posted by the Respondents immedi-
ately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to members 'are customarily posted.
Reasonable steps shall be taken by the Respondents
to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Sign and deliver to the Regional Director for
Region 31 sufficient copies of the notice, to be fur-
1285
nished by the Regional Director, for posting by
Jamco Development Corporation, if willing.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondents have taken to comply.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT enter into, maintain, give effect
to, or enforce the self-help aspects of sections XIII,
XIV, and IX, paragraph 42, of our agreement with
Jamco Development Corporation insofar as they
apply to the subcontracting provisions of section
III, paragraph 12, of that agreement.
SOUTHERN CALIFORNIA PIPE TRADES
DISTRICT COUNCIL No. 16, UNITED
ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND
PIPEFITTING INDUSTRY OF THE
UNITED STATES AND CANADA, AFL-
CIO
LOCAL UNION No. 761, 1JNITED AS-
SOCIATION OF JOURNEYMEN AND AP-
PRENTICES OF THE PLUMBING AND
PIPEFITTING INDUSTRY OF THE
UNITED STATES AND CANADA, AFL-
CIO
8 If this Order is enforced by a judgment of a United States court of
appeals, the words to the notice reading "Posted by Order of the Nation,
al 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 "