Intl. Union Of Operating Engineers, Local 542

National Labor Relations Board - Board Decisions

Jan 31, 1975

216 N.L.R.B. 408 (N.L.R.B. 1975)

408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers, Locals
542, 542-A, 542-B and York County Bridge, Inc.
Cases 4-CB-1900 and 4-CC-653
January 31, 1975
DECISION AND ORDER
By ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND PENELLO
On June 18, 1974, Administrative Law Judge Alvin
Lieberman issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs, and Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The complaint alleges , in pertinent part, that
Respondents are in violation of Sections
8(b)(4)(ii)(A) and 8(b)(3) of the Act by demanding,
and threatening a refusal to furnish workers in
furtherance of the demand, that the Charging Party,
York County Bridge, Inc. (hereinafter York), enter
into a collective-bargaining agreement with Re-
spondents containing provisions prohibited by Sec-
tion 8(e) of the Act.' As litigated, the allegation of
the 8(b)(3) violation encompassed Respondents'
related demand, as discussed more fully below, that
York bring its parent company, G. A. and F. C.
Wagman, Incorporated (hereinafter Wagman), under
whatever agreement might be entered into between
Respondents and York, including the recognition of
Respondents as collective-bargaining representatives
of certain of Wagman's employees.
The Administrative Law Judge concluded that no
violation of Section 8(b)(4)(ii)(A) had occurred
because, irrespective of whether the contractual
provisions in controversy are prohibited by Section
8(e), Respondents did not attempt to force York to
enter into any agreement containing these provisions.
We find, on the contrary, that it was clearly
Respondents' object to force York to agree to these
provisions. Between 1967 and 1971, York was a
member of the Contractors Association of Eastern
The complaint is a consolidated complaint and includes allegations
based on a charge filed by Contractors Association of Eastern Pennsylvania
in Case 4-CB-1901 . That charge was withdrawn pursuant to a settlement
agreement , and on March 8, 1974, the Board denied the General Counsel's
appeal from the Administrative Law Judge 's action in granting the parties'
216 NLRB No. 67
Pennsylvania (CAEP), which bargained on behalf of
its employer-members with Respondents. When the
existing collective-bargaining agreement was about
to expire in 1971, Respondents informed CAEP that
it wanted to exclude York and several other
companies from negotiations over the new multiem-
ployer contract. Simultaneously, it informed York
that it wished to meet with York independently to
discuss a new contract. The employers consented to
this arrangement.
Multiemployer bargaining began in April 1971.
Not having secured an agreement containing the
contested provisions by the expiration date of the
existing agreement, Respondents struck the employ-
ers still in the multiemployer bargaining group. It
also struck York and the other employers it had
carved out of the group, on May 1. Bargaining with
York had not even begun, presumably because
Respondents were involved with the multiemployer
bargaining and it was understood that York and the
other "carved out" employers would be represented
in the separate bargaining by Engineers Employers,
the larger employers' association that was now
representing the employer-members of CAEP who
were still in the multiemployer bargaining group.
On July 7, 1971, the multiemployer group agreed to
the contested provisions and the strike ended.
Thereafter, bargaining between Respondents and the
"carved out" employers began. The employers,
including York, offered to adopt the agreement
produced by the strike. Respondents refused this
offer as to York unless York would agree to take
steps toward bringing Wagman, its parent company,
under the agreement. Thus, as the Administrative
Law Judge found, during these negotiations it was
the employers, not Respondents, who were urging
adoption of the provisions in controversy. But as it
was manifestly clear that Respondents would accept
nothing less than these provisions, over which they
had struck, it is unrealistic to infer that Respondents
had abandoned their efforts to secure agreement to
these provisions. To do so is to ignore the circum-
stances under which these parties came to the
bargaining table and the pressures that were operat-
ing on them. The employers had been struck, along
with the multiemployer group, for over 2 months and
were now willing to accept the contract agreed to by
the group in order to get back to work without
further delay. Respondents continued to insist on the
substance of the provisions they struck over and
would not resume referring workers from their hiring
motion to withdraw the charge in Case 4-CB-1901. The Board remanded
this proceeding to the Administrative Law Judge for his decision on the
issues raised by the complaint based on the charges filed by York in Cases
4-CB-1900 and 4-CC-653.
INTL. UNION OF OPERATING ENGINEERS , LOCAL 542 409
hall until a contract was signed . That they were
unwilling to enter into a contract unless York agreed
to accept certain additional terms , as discussed
hereafter, does not, of course, take away from the
fact that they continued to seek an agreement
containing the provisions alleged to be prohibited by
Section 8(e). We must , therefore , examine those
provisions.
The provisions complained of are as follows:
Section 11-Non-Union Equipment:
(a) No operator shall be required to operate
equipment belonging to a contractor or supplier
with whom this Local Union is not in signed
relations , provided , Union equipment is available
in the locality. No party to this agreement shall
rent or supply equipment unmanned to anyone
doing construction work covered by this agree-
ment who is not in signed relations with this
Union.
(b) No employee represented by this Union on
construction work shall be required to operate
equipment of or for any Employer who has any
interest in a firm or company doing construction
work within the jurisdiction of this Union and
which is not in signed relations with this Union.
The gist of section 11, as its title suggests , is to give
Respondents control over the employers or persons
whose equipment may be used on construction work
covered by the agreement, irrespective of whether the
operator of the equipment is employed by a signatory
or a stranger to the agreement . It constitutes an
agreement to cease doing business with certain other
persons, in situations not involving loss of work to
employees represented by Respondents , and to that
extent is prohibited by Section 8(e) unless saved by
that section 's construction industry proviso:
That nothing in this subsection (e) shall apply to
an agreement between a labor organization and
an employer in the construction industry relating
to the contracting or subcontracting of work to be
done at the site of the construction , alteration,
painting, or repair of a building, structure, or
other work... .
As was observed, upon a review of the legislative
history, in International Union of Operating Engineers,
Local Union No. 12 (Acco Construction Equipment,
s 204 NLRB 742 (1973), at ALJD, "Discussion and Conclusions-
Section 8(e)."
3 "(b) Neither the Union nor any of its members shall be obligated to
work on same job or project with, or service any contractor or sub-
contractor not a party to an agreement with the Union. This shall not apply
when the construction contracts are awarded directly by the Owner to the
contractor or sub -contractor mentioned above."
Inc.),2 the 8(e) proviso was intended to prevent labor
strife among nonunion and union employees at the
same jobsite. In fact, the collective-bargaining
agreement in which the contested provisions appear,
in the instant case, contains a separate provision
addressed to the problem of union and nonunion
employees.3
The provisions of section 11, set forth above, have
a different and broader effect. Neither the first
sentence of section 11(a) nor section 11(b) is limited
to situations where the boycotted supplier of the
equipment has any employees at the jobsite. Were
these provisions so limited they would be redundant
in light of the provision quoted in the previous
footnote herein. As these provisions reach beyond
the performance of work at the jobsite they also
reach beyond the construction industry proviso and
are unlawful under Section 8(e).4
Section 11(b) of the agreement, as seen, excuses
employees represented by Respondent from operat-
ing equipment of any employer who has any interest
in a firm doing construction work within Respond-
ents' jurisdiction without a contract with Respond-
ents. In addition to its prohibition by Section 8(e),
this provision enters into the issue of whether
Respondents have violated Section 8(b)(3) of the Act.
The contract provision is aimed, at least in part, at
what Respondents call the "dual company" problem.
A "dual company" is a construction firm having two
operating parts, only one having an agreement with
union 1. The other part might or might not have an
agreement with another union, but in any case does
work within the territorial jurisdiction of union 1 on
jobs where there is no subcontracting clause requir-
ing an agreement with union 1. Where there is such a
subcontracting clause, or otherwise as the firm sees
fit, the operating division having an agreement with
union 1 will bid on the job.
Such is the case with York. Wagman, which has an
agreement with another union, formed York as a
subsidiary which could bid on and perform jobs
requiring agreement with Respondents and their
affiliates. Since Wagman also does construction
within Respondents' territorial jurisdiction, without
being "in signed relations" with Respondents, York
literally could not operate equipment with employees
represented by Respondents if section 11(b) had
been effectuated. York was willing to sign section
11(b) anyway, hoping that despite that provision it
could "continue on as before," as York's representa-
4 International Brotherhood of Electrical Workers, Local 1186, AFL-CIO
(Pacific Electrical Contractors' Association), 192 NLRB 254 (1971).
The General Counsel contends that these provisions , when read with
other provisions of the agreement, also violate Sec. 8 (e) because they
contemplate "self-help" in their enforcement . Respondents argue, inter alto,
that this contention has been rendered moot by subsequent events . We need
not pass on these issues.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive was quoted by Respondents' president. Re-
spondents, which had carved York out of the
multiemployer group precisely because it was a "dual
company," would not accept this, although it would
continue relations with York temporarily in ex-
change for a gradual phasing out of Wagman's
"nonunion" operation.5
Respondents thus did not, as they contend,
disclaim an interest in continuing to represent the
employees of York. Rather, they pursued an attempt
to enlarge the bargaining unit by replacing with
themselves the existing bargaining representative of
the employees of Wagman.6 This was not a mandato-
ry subject of bargaining. Failing to disclaim repre-
sentation of the employees, Respondents had a duty
to bargain and therefore to refrain from holding the
negotiations hostage to a demand for a nonmandato-
ry subject. Respondents violated that duty. They
went further and held the negotiations hostage to
provisions banned by Section 8(e) of the Act, over
which it had struck before York accepted them. They
thus violated Section 8(b)(3) of the Act. By ceasing
their established practice of furnishing workers to
York, or threatening to do so, in support of their
demand for provisions violative of Section 8(e), they
coerced York within the meaning of Section
8(b)(4)(ii)(A).7 Accordingly, we find that additional
violation.
CONCLUSIONS OF LAW
1. York County Bridge, Inc., is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Respondents are labor organizations
within the meaning of Section 2(5) of the Act and at
all times material herein have been the exclusive
representative of certain employees of York County
Bridge, Inc., for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
3. By refusing to bargain collectively with York
County Bridge, Inc., Respondents have engaged in
and are engaging in unfair labor practices within the
meaning of Section 8(bX3) of the Act.
4. By threatening, coercing, or restraining York
County Bridge, Inc., with an object of forcing or
requiring it to enter into an agreement which is
prohibited by Section 8(e) of the Act, Respondents
have engaged in and are engaging in unfair labor
practices within the meaning of Section 8(b)(4)(iiXA)
of the Act.
S In Respondents ' view, an operation under agreement with a different
union was "nonunion."
s Cf. International Brotherhood of Electrical Workers, AFL-CIO (Texlite,
Inc.). 119 NLRB 1792 (1958).
r Columbus Building and Construction Trades Council AFL-CIO (771e
Kroger Co.), 149 NLRB 1224 (1964).
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondents,
International Union of Operating Engineers, Locals
542, 542-A, 542-B, their officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Insisting, as a condition of executing a
collective-bargaining agreement with York County
Bridge, Inc., covering employees of that employer, or
as a condition of continuing to furnish York County
Bridge, Inc., with workers, that York County Bridge,
Inc., enter into an agreement prohibited by Section
8(e) of the Act, or that such agreement cover
employees in a unit currently represented by another
labor organization.
(b) Refusing to refer, or threatening to refuse to
refer, to York County Bridge, Inc., at its request
individuals for employment in order to force or
require York County Bridge, Inc., to enter into an
agreement prohibited by Section 8(e) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with York
County Bridge, Inc., subject to the provisions of
Section 9(a) of the Act, with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment and, if an understanding
is reached, embody such understanding in a signed
agreement.
(b) Post at Respondents' business offices and
meeting halls, copies of the attached notice marked
"Appendix." 8 Copies of said notice, on forms
provided by the Regional Director for Region 4, after
being duly signed by Respondents' representatives,
shall be posted by Respondents immediately upon
receipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees and
members are customarily posted. Reasonable steps
shall be taken by Respondents to insure that said
notices are not altered, defaced, or covered by any
other material. `
(c) Sign and mail to the Regional Director for
Region 4, sufficient copies of said notice, on forms
9 In the event that this Order is enforced by a Judgment of a 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."
INTL. UNION OF OPERATING ENGINEERS , LOCAL 542
provided by him, for posting at the premises of
Charging Party York County Bridge, Inc., if the
latter is willing.
(d) Notify the Regional Director for Region 4, in
writing , within 20 days from the date of this Order,
what steps Respondents have taken to comply
herewith.
ACTING CHAIRMAN FANNING, dissenting:
Contrary to my colleagues , I would find, in
agreement with the Administrative Law Judge, that
the Respondent Union's object in refusing to refer
employees for employment by York was to compel
that Company and Wagman, dual companies, to
bargain for all their employees in a single unit. In my
opinion, the evidence does not support the majority's
conclusion that an additional and unlawful object of
the Union was to require York to sign a contract
containing the provisions alleged by the General
Counsel to be prohibited by Section 8(e) of the Act.
While the Union did, indeed, insist that the disputed
provisions must be included in the standard contract
negotiated with the multiemployer group in July
1971, York was specifically excluded from all
negotiations and efforts to secure that contract. With
respect to York, the record is clear that the Union
refused to bargain with that Company for, any
contract unless and until York gave assurances that it
would end its dual-company arrangement with
Wagman and bargain with the Union as a single
employer. The record is also clear that the alleged
8(e) provisions were designed to preclude the
employers under contract with the Union from doing
business with York and Wagman so long as Wagman
was nonunion . If, however, York acceded to the
Union 's adamant position that York and Wagman
must both be all-union companies before any
contract could be negotiated, obviously the Union's
need for the alleged 8(e) clauses would immediately
evaporate. Whether or not the Union would never-
theless insist that these clauses must be included in a
contract executed with York-Wagman is, in my
opinion, entirely speculative . I do not believ;r it is a
reasonable ground to conclude, as the majority does,
that the Union necessarily was at all tithes insisting
that York execute a contract containing unlawful
8(e) clauses.
I would affirm the Administrative Law Judge's
conclusion that the General Counsel has not prod-
uced sufficient evidence in this case to warrant a
finding that the Union has violated Sections 8(bX3)
and 8(b)(4)(ii)(A) of the Act.
I The complaint was issued pursuant to charges filed on November 1,
1971, by York County Bridge, Inc. (4-CB-1900 and 4-CC-653). and
Contractors Association of Eastern Pennsylvania (4-CB-1901). As will be
APPENDIX
411
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity
to present their evidence, the National Labor
Relations Board has found that we violated the
National Labor Relations Act, and has ordered us to
post this notice and to keep the promises that we
make in this notice:
WE WILL NOT insist, as a condition of executing
a collective-bargaining agreement with York
County Bridge, Inc., or as a condition of
continuing to furnish York County Bridge, Inc.,
with workers, that York County Bridge, Inc.,
enter into an agreement prohibited by Section
8(e) of the Act, or that such agreement cover
employees in a unit currently represented by
another labor organization.
. WE WILL NOT refuse to refer, or threaten to
refuse to refer, to York County Bridge, Inc., at its
request individuals for employment in order to
force or require York County Bridge, Inc., to
enter into an agreement prohibited by Section
8(e) of the Act.
WE WILL bargain, upon request, with York
County Bridge Inc., over rates of pay, wages,
hours of employment, and other terms or condi-
tions of employment and, if an understanding is
reached, embody such understanding in a signed
agreement.
INTERNATIONAL UNION
OF OPERATING
ENGINEERS , LOCALS 542,
542-A, AND 542-B
DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN, Administrative Law Judge: The trial
in this proceeding was held before me in Philadelphia,
Pennsylvania, on May 22 and 23, 1972, upon the General
Counsel's complaint 1 and Respondent's answer. The issues
litigated were whether Respondents violated Sections
8(b)(3) and 8(bX4Xii)(A) of the National Labor Relations
Act, as amended (Act), by striking members of employer
associations, including Contractors Association of Eastern
Pennsylvania (CAEP), for which Operating Engineers
Employers of Eastern Pennsylvania and Delaware (Engi-
neers Employers) was the bargaining agent and by
threatening to refuse to furnish employees to York County
set forth below , the charges filed by both Charging Parties were privately
settled during the trial. However, the settlement entered into by Respond-
ents and York County Bridge, Inc., was , in effect, set aside.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bridge, Inc. (York), in order to force Engineers Employers
and York to enter into an agreement prohibited by Section
8(e).2
Upon the entire record, my observation of the witnesses
and their demeanor while testifying, and having taken into
account the arguments made and the briefs submitted,3 I
make the following:
FINDINGS OF FACT
1. JURISDICTION
York, a Pennsylvania corporation whose principal office
is located at York, Pennsylvania , is engaged in pile driving
and in the construction of bridges and dams. York
annually purchases goods and services from suppliers
located outside the Commonwealth of Pennsylvania valued
at more than $50,000 . Accordingly, I find that York is a
construction industry employer within the meaning of
Section 8(e) of the Act and is engaged in commerce within
the meaning of Section 2(6) and 8 (bX4). I conclude,
thetefore, that the assertion of jurisdiction over this matter
by the National Labor Relations Board (Board) is
warranted.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondents, three locals of International Union of
Operating Engineers , AFL-CIO, are labor organizations
within the meaning of Section 2(5) of the Act .4
III. INTRODUCTION
As will appear, this case is concerned with Respondents'
dealings with York, including an alleged threat by
Respondent to refuse to furnish employees to York. The
General Counsel and York contends that an object of this
threat was to compel York to enter into a contract
prohibited by Section 8(e) of the Act. Accordingly, the
General Counsel argues, Respondent violated Section
8(b)(3) and (4XiiXA). Respondent , on the other hand,
maintains that it did not trench on either of the foregoing
s In pertinent part the provisions of the Act mentioned in the text are as
follows:
Sec 8(b) It shall be an unfair labor practice for a labor organization
or its agents-
(3) to refuse to bargain collectively with an employer, provided it is
the representative of his employees....
(4) ... (u) to threaten, coerce, or restrain any person engaged in
commerce or in an industry affecting commerce, where .. an object
thereof is:
(A) forcing or requiring any employer... to enter into any
agreement which is prohibited by section 8(e). prohibited by
section 8(e);
(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 otherwise 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
sections of the Act because the object of the threat it is
alleged to have made did not fall within the proscription of
Section 8(b)(4)(A).
IV. THE HISTORY OF THIS PROCEEDING AND ITS
PRESENT POSTURE
As noted, on May 22 and 23, 1972, a trial was held
before me on the issues raised by the pleadings in this
matter. On the second day of the trial, after all parties had
rested but before the record was closed, both Charging
Parties; i.e., York and CAEP, entered into a private
settlement agreement .6
Pursuant to their agreement with Respondent, York and
CAEP then moved to withdraw their charges and I granted
these motions. Having done so, I dismissed the complaint
in accordance with Section 102.9 of the Board's Rules and
Regulations, series 8, as amended.?
On June 1, 1972, the General Counsel appealed to the
Board from my order dismissing the complaint. During the
pendency of the General Counsel's appeal, York, on
October 10, 1972, filed several motions with the Board,
including a motion to vacate my dismissal of the complaint
and a motion to reinstate the complaint. On March 19,
1973, the Board referred York's motions to me for ruling.
On August 7, 1973, after a hearing at which evidence was
adduced, I denied York's various motions . Requests for
review of this ruling were filed with the Board by the
General Counsel and York.
On March 8, 1974, the Board decided the General
Counsel's appeal from my order dismissing the complaint.
As set forth in its order, the Board "concluded that the
agreement of the parties underlying [my ] acceptance of the
Charging Parties' withdrawal of the charges and [my]
consequent dismissal of the complaint has not settled the
dispute."
Accordingly, the Board remanded this proceeding to me
"for the purpose of preparing a written decision contain-
ing, findings of fact, conclusions of law, and a recommend-
ed order resolving the issues raised by the complaint in
Cases 4-CB-1900 and 4-CC-653 [in which York . . . is the
such extent unenforceable and void : Provide4 That nothing in this
subsection (a) shall apply to an agreement between a labor organization
and an employer in the construction industry relating to the
contracting or subcontracting of work to be done at the site of the
construction, alteration, painting, or repair of a building, structure, or
other work ....
3 Although all the arguments of the parties and the authorities cited by
them, whether appearing in their briefs or made orally at the trial, may not
be discussed in this Decision, each has been carefully weighed and
considered.
4 Although they are separate labor organizations , Respondents are
closely related to each other . Accordingly, they will be referred to
hereinafter collectively as Respondent.
5 The contentions of the General Counsel and York being similar, they
will be referred to hereinafter as the General Counsel's contentions.
6 The settlement agreement provided , among other things, that "York
will solve the dual company problem by May I, 1975, to [Respon-
dent's ] satisfaction ." As will be seen , this problem is the root of the dispute
between Respondent and York . The nature of a dual company, the
problems such a company raises for Respondent, and the manner in which
Respondent sought to eliminate these problems, both in general and insofar
as York was concerned, will be discussed in later sections of this Decision.
r Insofar as material Sec. 102.9 provides that "upon withdrawal of any
charge, any complaint based thereon shall be dismissed."
INTL. UNION OF OPERATING ENGINEERS , LOCAL 542 413
Charging Party ]." In connection with the scope of the
remand , the Board further concluded that "as the parties in
Case 4-CB-1901 [in which CAEP is the Charging Party],
are willing to abide by their [settlement ] agreement
[entered into on May 23, 1972], . . . disturbing such
agreement would not effectuate the policies of the Act."
In view of the Board 's latter conclusion , the evidence
adduced at the trial need be considered only insofar as it
relates to the dealings between Respondent and York; and
findings of fact , conclusions , and recommendations are
necessary only in that regard . Notwithstanding this posture
of the proceeding, factual findings will be made, by way of
background , concerning the bargaining engaged in by
Respondent and Engineers Employers , the subject of the
charge in Case 4-CB-1901.
V. PRELIMINARY FINDINGS AND CONCLUSIONS8
A. The Dual Company Problem
As was made apparent during the trial , a dual company
in the segment of the construction industry in which
Respondent and York do business9 consists of an
enterprise having two parts, only one of which employs
workers represented by Respondent . It is the position of
Respondent that dual companies diminish its members'
employment opportunities . Homer Dawson, Respondent's
president, testified that this comes about because such
companies "[use] our people when' it is to their advantage
and [lay ] them off when it is not to their advantage [to
employ them] ," thus creating "an intolerable situation for
[Respondent ]." Moreover, Dawson continued , respondent
feels that it has a responsibility not only "to preserve [its
members' ] work opportunities [but also to protect]
employers who . . . do all their work 100% union . . . from
unfair competition" posed by dual companies which,
because of their nonunion adjunct , are able to underbid
nondual companies.
In the hope of eliminating the problems resulting from
the existence of dual companies and thereby enhance and
preserve employment opportunities for persons whom it
represents , Respondent, during its bargaining with Engi-
neers Employers, proposed and obtained the contract
provisions alleged in the complaint as being prohibited by
Section 8(e) of the Act.10
8 The purpose of these findings is to furnish a frame of reference within
which to consider the facts relating to Respondent 's alleged unfair labor
practices and the conclusions to which they may give rise. To the extent that
the contentions of the parties relate specifically to the findings made here
they will be treated here , although they, as well as the findings, may again
be considered in other contexts.
6 As I have found , York is engaged in pile driving and in the
construction of bridges and dams . Employees represented by Respondent
operate equipment and machines used in such work.
10 The contract provisions complained of are as follows:
ARTICLE II
General Provisions
Section I I-Non-Union Equipment
York is one part of a dual company, the other part is
G.A. and F.C. Wagman, Incorporated (Wagman). Wag-
man's employees have never been represented by Respond-
ent, but, at all material times, they have been represented
by a labor organization not associated with the American
Federation of Labor and Congress of Industrial Organiza-
tions (AFL-CIO) as is Respondent. Dawson, Respondent's
president, described .the Union representing Wagman's
employees as being, with respect to Respondent, a "rival
union."" Accordingly, notwithstanding such representa-
tion, in Respondent's eyes Wagman is a nonunion
employer.
York was formed by Wagman in 1960 as its wholly
owned subsidiary. Before York's incorporation, Wagman
was barred from working as a subcontractor on a
construction project because the general contractor had an
agreement with a union affiliated with the AFL-CIO
precluding it from subletting work to a subcontractor
whose employees were not represented by a union similarly
affiliated. To avoid the recurrence of such a situation
Wagman created York so that Wagman "would have a
company that was able to work as a sub-contractor to
contractors who were AF of L and were bounds [sic] by
their contracts just-to sub-contract to people who were also
a party to [such an ] agreement." 12
York and Wagman do the same type of construction
work. Being Wagman's wholly owned subsidiary, all major
decisions affecting York are made by Wagman. One of
Wagman's vice presidents is also York's vice president.
Both corporations are housed in the same building, employ
office and professional workers in common, and the same
equipment is used interchangeably by both.13
I make no judgment as to whether York and Wagman
constitute a single employer. However, in view of the
foregoing, and considering the purpose for which York was
created by Wagman, York and Wagman may be consid-
ered to be separate parts of the same enterprise.
Although York did not immediately upon its incorpora-
tion enter into an agreement with Respondent, it apparent-
ly satisfied the purpose for which it was formed by
obtaining its employees from respondent's hiring hall. In
1967 York joined CAEP which bargained with Respondent
on behalf of its members, including York, until 1971.
(a) No operator shall be required to operate equipment belonging to
a contractor or supplier with whom this Local Union is not in signed
relations , provided, Union equipment is available in the locality. No
party to this agreement shall rent or supply equipment unmanned to
anyone doing construction work covered by this agreement who is not
in signed relations with this Union.
(b) No employee represented by this Union on construction work
shall be required to operate equipment of or for any Employer who has
any interest in a firm or company doing construction work within the
jurisdiction of this Union and which is not in signed relations with this
Union.
11 A "rival union," Dawson explained , is one "which does work in the
same jurisdiction which [Respondent ) covers I.-
12 The findings concerning York's formation are based upon, and the
quotation appearing in the text is taken from , testimony given by John
Rutter, a vice president of both Wagman and York.
13 Rutter testified, without stating the amount of the rent , that when one
used the other's machinery rent was paid.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Carved-Out Employers
The last collective-bargaining agreement between Re-
spondent and CAEP covering the latter's members,
including York, expired on April 30, 1971.14 On February
17 Respondent informed CAEP, in writing, that it wanted
to meet with CAEP for the purpose of negotiating an
agreement to replace the one about to terminate. At the
same time Respondent notified CAEP that it wanted "to
withdraw from negotiating with [CAEP] with respect to
... York" and several other dual companies.15
In response to its request for bargaining Respondent was
advised by CAEP that it would be represented in the
negotiations by Engineers Employers, a broader based
employer association. In doing so, however, CAEP made
no mention of Respondent's request to carve York and
other dual companies out of the bargaining unit . Accord-
ingly, Respondent made a similar request of Engineers
Employers which was acceded to on April 12.
C. The Bargaining Between Respondent and
Engineers Employers
Bargaining between Respondent and Engineers Employ-
ers began early in April 1971. At the outset Respondent
presented for. consideration by Engineers Employers a
document containing the items it wanted to incorporate in
the contract then under negotiation . Among these was the
provision alleged in the complaint to have been prohibited
by Section 8(e) of the Act. 16
Not having obtained agreement to this provision, as well
as several others, by April 30, the expiration date of the old
contract, Respondent, on the next day, struck the employ-
ers for whom Engineers Employers was the bargaining
agent . The expired contract having also covered York and
the other carved-out employers, they, too, were struck on
May 1.
Bargaining between Engineers Employers and Respond-
ent continued through the strike . On July 7 agreement was
reached on all outstanding matters, including the provision
claimed to have been prohibited by Section 8(e) of the Act.
Concerning this, as Harold Williams, one of the negotia-
tors for Engineers Employers, testified , Respondent's
position was that unless it was agreed to "the strike would
continue." Faced with this alternative, Engineers Employ-
ers accepted the provision and the strike ended , except
with respect to York and the other carved-out employers
between whom and Respondent there was still no
collective-bargaining agreement.
The contract entered into by Engineers Employers and
Respondent upon the completion of their negotiations was
to be effective, according to its terms, from May 1, 1971, to
April 30, 1973, absent an extension.
14 All dates hereinafter mentioned without stating a year fall within 1971.
15 G.C. Exh. 4.
16 See In. 10, above , for the terms of this provision.
17 It was later made clear that Williams used the term "double -breasted
operation" as a synonym for "dual company operation."
is My findings as to the events of this meeting are based on the
testimony given by Minckler and Homer Dawson , Respondent's president,
who was also present at the meeting . The quotations appearing in the text
VI. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts Concerning Respondent's Alleged Violation
of Section 8(b)(3) and 8(b)(4)(ii)(A) of the Act
During the bargaining between Respondent and Engi-
neers Employers Respondent was informed that Engineers
Employers would represent the carved-out employers,
including York, in any subsequent negotiations between
the carved-out employers and Respondent. After Respond-
ent and Engineers Employers agreed upon a contract
(standard contract) covering the employers who had not
been removed from the unit Respondent and Engineers
Employers, as the representative of the carved-out employ-
ers, met twice.
The first meeting, at which all the carved-out employers
were represented, took place on July 14, 1971. At the
second meeting , held on September 28, only York was
represented.
At neither meeting did Respondent seek a contract with
York or any other carved-out employer. At each meeting
the requests for contracts came from the employers. Thus,
as Harold Williams, a member of Engineers Employers'
negotiating committee testified , on July 14, "we suggested
that we would like everyone to sign the [standard]
contract." Respondent 's "response," as Williams further
testified, "was that [it] would not sign up the singled out
contracting companies , including York . . . , unless they
eliminated the double-breasted operation that they are
working under now, or were working under , in a stipulated
period of time." 17
The September 28 meeting, as has already been noted,
was devoted entirely to York. York's spokesman was
Howard Minckler, who, like Williams, was a member of
Engineers Employers' negotiating committee.18
Minckler informed Respondent of York's "position of
not being able [,without a contract with Respondent,] to
bid on any work," and that York "wanted to be able to bid
on union construction work." Accordingly, York again
offered to sign the standard agreement.
This offer, as was the similar offer made on July 14 on
behalf of York and the other carved-out employers, was
rejected by Respondent . Homer Dawson , Respondent's
president, stated in this regard that York "would not be
given an agreement unless [it] brought all [its ] companies to
under the agreement [and that York] would not be
furnished any employees unless [it] signed an agree-
ment." 20
After some further discussion Respondent changed its
position and offered to consider any proposition respecting
a contract which York might make, provided it was
accompanied by an undertaking from the York-Wagman
enterprise to eliminate its dual company operation within a
stated period of time . In the absence of an estimate from
York as to how long it would take to accomplish this,
are taken from Minckler 's testimony.
19 This was a reference to Wagman, which , as will be remembered, was
the other part of the York-Wagman dual company.
20 Concerning the operation of Respondent 's hiring hall, Dawson
testified that it was not Respondent 's "policy [to] furnish engineers to
anyone without a signed contract ," nor does Respondent "refer employees
to companies with whom it is not in collective bargaining relations."
INTL. UNION OF OPERATING ENGINEERS, LOCAL 542 415
Respondent suggested that a year would be acceptable. To
this Dawson added that "if York had a different proposal,
[Respondent ] would be willing to listen." York answered
that it would "think about [the foregoing] and come back
with a counter-proposal."
York, however, did not "come back with a counter-
proposal ." Instead , on October 7 York once more offered
to sign the standard agreement without any change in the
York-Wagman dual company operation. This offer Re-
spondent again refused to accept.
B. Contentions and Concluding Findings Concerning
Respondent's Alleged Violations of Section 8(b)(3)
and (4)(ii)(A) of the Act
To establish a violation of Section 8(b)(4) of the Act it
must be shown that an object of a union 's conduct falls
within the proscription of one of its subsections.21 N.L.R.B.
v. Denver Building and Construction Trades Council , et at,
341 U.S. 675, 687-689 (1951). In the absence of such an
object there is no violation of Section 8(bX4). Seafarers
International Union of North America, Atlantic and Gulf
District, Harbor and Inland Waterways Division (Salt Dome
Production Co.) v. N.L.RB., 265 F.2d 585, 590 (C.A.D.C.
1959); Truck Drivers & Helpers Local Union No. 592, IBT
(Estes Express Lines, Inc.), 181 NLRB 790, 791-792 (1970).
The General Counsel argues that an object of Respond-
ent's statement that it would not furnish employees to
York22 was to force York to enter into an agreement (the
standard agreement ) containing provisions prohibited by
Section 8(e) of the Act . In this manner, he further argues,
Respondent violated Section 8(bx4Xii)(A).
On brief the General Counsel states that "of first
consideration is whether [the standard agreement] vio-
late[s] Section 8(e) of the Act." I do not agree. A finding
that the standard agreement was prohibited by Section 8(e)
would be of no consequence insofar as Respondent's
alleged violation of Section 8(b)(4)(iiXA) is concerned
unless, as the cases cited above teach , there is also a finding
that an object of Respondent's threat was to compel York
to enter into it.23 Accordingly, I will address myself first to
Respondent 's object.
A review of the evidence shows that the elimination of
dual companies ' was of prime importance to Respondent.
Respondent hoped to accomplish this in some measure by
incorporating into the collective-bargaining agreement it
entered into with Engineers Employers the provision
alleged in the complaint to have been prohibited by
Section 8(e) of the Act.
Insofar as Respondent 's direct dealings with dual
companies, including York, were concerned the evidence
also demonstrates Respondent 's purpose to compel them
to eliminate their nonunion operations . This is made
apparent not only by Respondent 's not seeking, or
initiating requests for, contracts with the dual companies,24
but also by the reasons given by Respondent for not
acceding to the dual companies' requests for contracts.
Thus, at the July 14 meeting Respondent made it clear
that it "would not sign up the singled out . . . companies,
including York . . ., unless they eliminated [their] double-
breasted operation." Similarly, at the September 28
meeting when York offered to sign the standard agreement
in order to enable it "to bid on union construction work,"
Respondent made it equally clear that it would not enter
into any agreement with York unless York was willing to
bring Wagman, its nonunion adjunct, "under the agree-
ment"; i.e., whatever agreement Respondent and York
might enter into upon York's satisfying Respondent's
condition.
The foregoing does not bespeak an object on Respond-
ent's part to compel York to enter into a prohibited
agreement by "threaten[ing]," to use the language of the
complaint, "to refuse to furnish workers to York." It
indicates, rather, that it was the object of Respondent's
threat to compel the York-Wagman enterprise to eliminate
their dual company operation, and I so find.
For Respondent to have sought to compel York-Wag-
man, an enterprise employing workers represented by
Respondent and workers not so represented to employ
only workers represented by Respondent is not an object
interdicted by Section 8(b)(4)(A) of the Act, which, in
relevant part, proscribes only "forcing or requiring any
employer . . . to enter into any agreement which is
prohibited by Section 8(e)." Nor did Respondent violate
Section 8(b)(3), with which it was also charged, by refusing
to enter into a collective-bargaining contract with York
unless York-Wagman agreed to employ only workers
represented by Respondent. Sheet Metal Workers Interna-
tional Union (Corrugated Asbestos Contractors, Inc.), 192
NLRB 32, 33-34, affd. sub nom . Corrugated Asbestos
Contractors 458 F.2d 683 (C.A.5, 1972).
Accordingly, I conclude that Respondent violated
neither Section 8(b)(3) nor (4)(ii)(A) of the Act. I shall,
therefore, recommend the dismissal of the complaint in
Cases 4-CB-1900 and 4-CC-653, in which York is the
Charging Party.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. York is an employer in the construction industry
within the meaning of Section 8(e) of the Act and is
engaged in commerce within the meaning of Section 2(6)
and 8(b)(4) of the Act.
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent did not engage in unfair labor practices
within the meaning of Section 8(b)(3) or (4)(ii)(A) of the
Act.
21 The subsection of Sec. 8(bX4) involved in this proceeding is subsection
(A).
22 This statement is characterized in the complaint as being a threat "to
refuse to furnish workers to York." For convenience I will adopt this
characterization.
73 1 use the past tense because all the events with which we are here
concerned occurred in 1971 and the standard agreement was to expire,
absent an extension , on April 30, 1973.
24 It will be remembered, in this regard , that at the meeting held on July
14, 1971, the requests for contracts between Respondent and the dual
companies were made by the dual companies, not by Respondent; and at
the September 28 meeting , at which only York was represented, York, and
again not Respondent , made the demand for a contract.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact and conclusions of
law and upon the entire record in this case , and pursuant
to Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER25
It is ordered that the complaint in Cases 4 -CB-1900 and
4-CC-653 be, and the same hereby is, dismissed.
ss In the event no exceptions are filed as provided by Sec. 102.46 of the 102.48 of the Rules and Regulations, be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions , and order, and all objections thereto shall be
conclusions, and recommended Order herein shall, as provided in Sec . deemed waived for all purposes.