Plumbers & Pipefitters Local 230

National Labor Relations Board - Board Decisions

Jun 5, 1974

211 N.L.R.B. 107 (N.L.R.B. 1974)

PLUMBERS & PIPEFITTERS LOCAL 230 107
Plumbers and Pipefitters Local No. 230 (Hartig
Plumbing Co. and Ameron Steel Producing Divi-
sion) and Jones, Jones and Jones
Imperial County Building and Construction Trades
Council (Hartig Plumbing Co. and Ameron Steel
Producing Division) and Jones, Jones and Jones.
Cases 21-CC-1461 and 21-CC-1481
June 5, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On December 21, 1973, Administrative Law Judge
Stanley Gilbert issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in opposition to the exceptions.
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
and to adopt his recommended Order.
Based upon a charge filed by Jones, Jones and Jones on
June 22, 1973, as amended on July 27, 1973, the complaint
in Case 21-CC-1481 was issued on July 31, 1973. Said
complaint alleges that Imperial County Building and
Construction Trades Council, hereinafter referred to as
Respondent Council, violated Section 8(b)(4)(ii)(A) and
(B) of the Act. Respondent Council, by its answer, denies
that it committed the unfair labor practices alleged in said
complaint.
On August 2, 1973, I received a motion from the General
Counsel to reopen the hearing in Case 21-CC-1461 and
consolidate Case 21-CC-1481 with it for hearing. Said
motion was unopposed and, based upon the representation
therein that said cases involve the identical individuals and
factual situation, I issued an order on August 27, 1973,
granting General Counsel 's motion and reopened the
hearing on September 17, 1973, in Los Angeles, California.
In said hearing in the consolidated cases on September 17,
1973, there were received into evidence the formal
documents in Case 21-CC-1481, a stipulation of facts and
a stipulation that the record in Case 21-CC-1461 be
considered as part of the record in the consolidated cases.
Briefs were received from the General Counsel and counsel
for both of the Respondents on November 12, 1973.
Upon the entire record' in this proceeding and my
observation of the witnesses as they testified, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS INVOLVED
HEREIN AND THEIR RELATIONSHIP
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondents Plumbers and
Pipefitters Local No. 230, El Centro, California, and
Imperial County Building and Construction Trades
Council, El Centro, California, their officers, agents,
and representatives, shall take the action set forth in
the said recommended Order.
DECISION
STANLEY GILBERT, Administrative Law Judge: Based
upon a charge filed on April 23,1973, in Case 21-CC-1461
by Jones, Jones and Jones, the complaint in said case was
issued on May 3 , 1973. Said complaint alleges that
Plumbers and Pipefitters Local No. 230, hereinafter
referred to as Respondent Union, violated Section
8(b)(4Xii)(B) of the Act. Respondent Union, by its answer,
denies that it committed the unfair labor practices alleged
in said complaint . Pursuant to notice , a hearing in said case
was held in Riverside , California , on June 20, 1973, before
the duly designated Administrative Law Judge.
' By unopposed motion dated November 9, 1973, General Counsel
moved to correct the transcript and said motion is granted.
Ameron Steel Producing Division, herein called Ameron,
with an office and place of business located in Etiwanda,
California , is engaged in business in the manufacture and
sale of building materials for the building and construction
industry. At all times material herein, Ameron has been
engaged in the construction of a wire mill, known as the
mill project, at the comer of Aten Road and Clark Road in
El Centro, California.
In connection with the construction of the mill project,
Ameron has purchased and received, or will purchase and
receive, goods, products, and services valued in excess of
$50,000 directly from suppliers located outside the State of
California.
Hartig Plumbing Co., herein called Hartig, with its
principal office and place of business at Upland, Califor-
nia, is, and at all times material herein has been , engaged in
business as a plumbing, heating, and air-conditioning
subcontractor in Southern California.
In connection with the construction of the mill project,
Ameron contracted with Hartig for the furnishing and
installation of office plumbing.
Ameron and Hartig are, and each of them is, and at all
times material herein have been, persons engaged in
commerce, or in industries affecting commerce , within the
meaning of Section 8(b)(4)(ii)(A) and (B) of the Act.
211 NLRB No. 25
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. THE LABOR ORGANIZATION INVOLVED
As is admitted by Respondents, each of them is, and has
been at all times material herein, a labor organization
within the meaning of Sections 2(5) and 8(b) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Summary of Undisputed Facts
Based upon admissions and stipulations in the record, it
is found as follows:
Ameron does not have a collective -bargaining agreement
with either of Respondents , or any other labor organiza-
tion, covering the type of work performed by Hartig at the
mill project.
Respondent Union is the appropriate union affiliated
with Respondent Council having work jurisdiction over the
type of work performed by Hartig at the mill project.
Hartig is not signatory to any agreement with either of
the Respondents or any other labor organization.
Employees of Ameron do not perform work of the type
performed by Hartig at the mill project.
At all times material herein , Gene Anderson has been a
business representative of Respondent Union acting on its
behalf and has been , and is, an agent of Respondent Union
within the meaning of Section 2(2) and 2(13) of the Act.
Also, at all times material herein , Anderson has been
secretary of Respondent Council acting on its behalf and
has been , and is , an agent of Respondent Council within
the meaning of Section 2(2) and 2(13) of the Act.
B. The Issues
1. Did Respondent Union or Respondent Council, or
both of them, threaten, coerce, and restrain Ameron in
violation of Section 8(b)(4)(iiXB) of the Act by Anderson's
conduct.
2. Are articles V and IX of said proposed contract
violative of Section 8(e) of the Act in that the clauses are
secondary in their object and not protected by the
construction industry proviso to Section 8(e).
3. Did Respondent Council by demanding that Amer-
on sign said contract under threat of picketing violate
Section 8(b)(4)(ii)(A) and (B) of the Act because said
contract is violative of Section 8(e) of the Act.
C. Respondents' Conduct
The matters relating to the issues herein are conversa-
tions Anderson had with Lester Allison, Ameron's plant
manager, and Rudolph Jansen, its construction manager,
and a letter with an enclosed proposed contract between
Respondent Council and Ameron sent by Respondent
Council to Ameron. The project involved herein is the
building of a manufacturing plant to be used by Ameron
with respect to which Ameron is acting in the capacity of
the general contractor (with Allison and Jansen supervising
the construction).
Allison testified that, in the last part of March or first of
April 1973, Anderson came to the jobsite and represented
himself to Allison as the business representative of
Respondent Union. Anderson asked him if the plumbing
contract was let for the project and when he was told that it
had been, he asked who the subcontractor was. Allison
informed him that he believed that it was a "Hartig
Plumbing Company out of Ontario or Upland" but that he
"wasn't sure," that "Hartig was the lowest bidder" and,
therefore, he assumed that Hartig "got the job." Anderson
then went to his car, looked through a book, and reported
to Allison that Hartig's name was not in the "plumbing
book" and stated that he "had to assume it was nonunion
and that if it was nonunion , he would not allow the
plumbing to be done by a nonunion shop." Allison further
testified that Anderson stated to him that "If it was
nonunion, they would shut down the job completely and
put up a picket line." Allison told Anderson to "hold his
horses" until it could be determined if the plumbing
subcontractor was or was not union , that Ameron used
strictly union personnel and union contractors, and that he
was sure that Hartig was union even though it was not in
his book . Allison testified to Anderson's response as
follows:
Well, he, in so many words, told me that if I would
guarantee that we would use a union shop or if I was
sure it would be a union shop, he would wait until a
later date and see what happened and he would be in
contact with me.
It appears that in the afternoon of Friday, April 6, Hartig
installed some rough plumbing on the site . Allison testified
that "a week or so" thereafter , Anderson again came to the
jobsite, saw the rough plumbing that had been installed,
and asked "who had put it in." Anderson informed him
that he did not know, that he had left the jobsite on Friday
(April 6) at noon and when he returned to the jobsite
Monday, he found that it had been installed. Allison
further testified to Anderson 's response as follows:
He was very angry with the plumbing, No. 1, he said
they couldn't be a union shop because they did not
allow them to assemble plumbing in the shop and put it
in a pre-assembled situation on the job site and it was
pre-assembled.
He said they couldn't be a union shop because a
union shop would have to report to him. They would
have to get his okay for Saturday or Sunday work, if
they worked Saturday or Sunday, that he could just
assume that it was a scab and that we weren't dealing
in good faith with him and that he was going to put up
a picket line and stop the job and refuse to allow us to
complete the job.
He also said that I should get rid of this contract and
contract it with the local union or a local contractor
where he could make sure it was done by union
personnel.
• # • i i
THE WITNESS: He said, in so many words, that I
should rid myself of the Hartig Plumbing contractor,
whoever the contractor was, and have it done by a local
contractor where he would know that his men would be
used.
PLUMBERS & PIPEFITTERS LOCAL 230 109
Allison then told him to calm down until he determined
what contractor did the job and that he should talk to
Jansen who had knowledge of who had done the work.
Allison then testified as to what then occurred as follows:
He didn't calm down . He got in his car, backed on
down the road, drove up the road for 50 feet probably,
and then backed up to the gate again and asked me if
this was a private road or a public road and I told him
it was a private road and asked him why and he said,
well, I just want to know where I am going to put my
picket line and with this he drove off.
Shortly after the above-related second conversation
between Allison and Anderson , Jansen had a conversation
with Anderson at the jobsite (about the "middle of April").
Jansen testified that Allison pointed Anderson out to him,
that he introduced himself to Anderson, and that Ander-
son gave him his business card which indicated he was a
business representative of Respondent Union. According
to Jansen's testimony , Anderson asked him who installed
the rough plumbing, that he told him he didn't know
exactly but would find out, and that Anderson responded
as follows:
A. Oh, yeah. He said, "Bill, you'd better find out or
else."
So, at that time I made a joking gesture, I threw up
my hands and I said, "What else? You going to shoot
me?"
He said, "No, shut the whole God-damned place
down. I am going to put up a picket line and nobody
come to work no more."
That was just about his words.
Q. What was your response?
A. I told him "Keep your shirt on. I find out who it
is." And that is how we parted.
While both Allison and Jansen testified that Anderson
never mentioned that he was secretary of Respondent
Council, each admitted on cross-examination that Ander-
son had said to him that Ameron had a contract with
Respondent Council requiring Ameron to use union
subcontractors.
Anderson testified with respect to his first conversation
with Allison (which he placed as having occurred in the
last week of March) that he introduced himself and gave
Allison his business card as representative of Respondent
Union. Anderson denied that he stated that if he "didn't
get the identity of the plumbing contractor" that he "would
shut the job down." It is noted, however, that the threat to
which Allison testified was not based upon the failure to
get the identity of the plumbing contractor, but was
addressed to the use of a nonunion subcontractor. It
appears that the identity of the subcontractor was sought
by Anderson in order to determine whether it was or was
not a union subcontractor and that it was not the sole
object of Anderson's threats (as contended by Respon-
dents). Allison was a convincing witness and his testimony
with respect to the above-described conversation in the
latter part of March or first of April is credited.
Anderson also testified to a second conversation he had
with Allison which he placed around the 10th or 11th of
April and it appears that his testimony does not contradict
that of Allison with respect to their second conversation.
Again, Allison was a convincing witness with respect to the
second conversation which apparently occurred toward the
end of the second week of April and his testimony with
respect to said conversation is credited.
Anderson testified that he had no recollection of having
the conversation with Jansen to which Jansen testified.
Jansen was a convincing witness and his testimony is
credited.
By letter dated April 19, 1973, Anderson, as secretary of
Respondent Council, sent a letter to Ameron enclosing two
copies of the current "Articles of Agreement" requesting
that they be executed by Ameron. The letter contained the
statement that if the agreement is not executed, the
"Council shall have no alternatives but to take whatever
remedies it may deem appropriate under the circum-
stances." The agreement requested of Ameron by Respon-
dent Council contains , inter alia, clauses reading as
follows:
Articles of Agreement
I
This Agreement shall apply to and cover all building
and construction work performed by the Employer,
Developer and/or Owner-Builder within the jurisdic-
tion of any Union affiliated with the Councils and the
contracting or subcontracting of work to be done at the
site of the construction, alteration, painting, repair or
demolition of a building structure or other work.
II
The Employer, Developer and/or Owner -Builder
agrees that all work performed within the jurisdiction
of any Union affiliated with the Councils shall be
performed pursuant to an executed agreement with the
appropriate Union having work and territorial jurisdic-
tion and affiliated with the Council in the area m which
the work is performed.
IV
The Employer, Developer and/or Owner-Builder
agrees that he shall contract or subcontract all jobsite
work set forth in Article I above to a person, firm,
partnership or corporation that is party to an executed,
current Agreement with the appropriate Union having
work and territorial jurisdiction, affiliated with the
Council in which area the work is performed.
V
The Employer, Developer and/or Owner-Builder
agrees that in the event he contracts or subcontracts
any jobsite work set forth in Article I above, there shall
be contained in his contract with the subcontractor a
provision that the subcontractor shall be responsible
for the payment of all the wages and fringe benefits
provided under the agreement with the appropriate
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union affiliated with the Council. In the event that any
subcontractor fails to pay the wages or fringe benefits
provided under the Agreement with the appropriate
Union affiliated with the Council , the Employer,
Developer and/or Owner-Builder shall become liable
for the payment of such sums and such sums shall
immediately become due and payable by the Employer,
Developer and/or Owner-Builder provided, however,
he shall be notified of any such nonpayment by
registered letter by the appropriate Union no later than
ninety (90) days after notice of and /or completion of
the entire project.
IX
In the event that the Employer, Developer and/or
Owner-Builder violates any provision of this Agree-
ment with the exception of Article IV above, or fails to
abide by the determination as provided in Article VIII
or in the event that any contractor or subcontractor of
the Employer, Developer and/or Owner-Builder fails to
abide by the provisions of the appropriate agreement,
with the exception of any subcontracting clause
contained in the appropriate agreement of the subcon-
tractor, it will not be a violation of this agreement for
the Councils to terminate this Agreement and it shall
not be a violation of this Agreement for any employee
to refuse to perform any work or enter upon the
premises of such Employer, Developer and/or Owner-
Builder, to the extent permitted by law, and Employees
who refuse to perform any work or enter upon the
premises under the circumstances shall not be subject
to discharge or any other disciplinary action, to the
extent permitted by law.
Allison testified that at the suggestion of a union steward
(apparently for a union other than the Respondent Union)
he called Anderson on April 23. Allison's testimony with
respect to pertinent parts of the conversation is as follows:
Again , he expressed the fact that he wanted to know
who the plumber was, when he did the job, if they were
union or non -union and if I had received a letter from
him with some subcontracts and if I had signed these
contracts.
Mr. Anderson told me that he was tired of talking,
that he was going to take action today , that if he didn't
have the answers by 2:30 in the afternoon that he was
definitely going to take action and was going to close
the job down , shut it down, shut it down completely.
I asked him again to give me a chance to call Rudy
and talk to him and I would have Rudy or someone
from the company call him before 2:30 and get him
that information.
It is noted from Allison's testimony that he admitted to
Anderson that he had been "evasive" in his answers to him
because he did not think they were the "type of things
that" he should tell him and that he had given him the
name of Jansen as the person from whom he should get the
answers . Anderson testified to the telephone conversation
with Allison on April 23 as follows:
A. Well, he informed me that he had heard that I
was going to put a picket line on the job and I informed
him that I was in the process of making up the picket
sign right then.
Q. Did you tell him who was going to picket? Did
you tell him for what purpose?
A. I told him that these agreements had been sent
in and that I had the return receipt back . He said that
he had seen them , but that I should wait and talk to
Mr. Jansen before I did anything.
I informed him I tried to contact Mr. Jansen in the
past and hadn't had any satisfaction on anything.
He told me at that time if I would wait he would
have Mr . Jansen contact me and I said , "When?" and
he said, "Around 2:30 today."
It is apparent that there is a considerable variance between
the testimony of Allison and the testimony of Anderson as
to their telephone conversation of April 23 . Of the two
witnesses , Allison was the more convincing and therefore
his version is credited.
Jansen testified that he had no further conversation with
Anderson after the one to which he testified. However,
Anderson testified that he received a call from Jansen at
2:30 in the afternoon of April 23. Anderson 's testimony as
to that conversation is as follows:
A. Well, he told me that he understood that I was
figuring to put a Building Trades picket on there and I
informed him that I was.
Q. A Building Trades picket?
A. Yes.
Q. Go on.
A. Well, at that time he informed me that he wasn't
in no position to make a decision right at that time, that
he had seven vice-presidents that he had to get together
and go through on this and to give him a week before I
put this picket on.
And at this time I still didn't know whether we had a
union or a non-union sub on the job , so I give him that
week to sign this Building Trades agreement and then
on the 26th I heard from the NLRB. So, I stopped.
The above-quoted testimony of Anderson is credited.
While Jansen was a convincing witness, his testimony that
he only had the one conversation with Anderson to which
he testified (earlier in April on the jobsite) is not credited.
D. Concluding Findings
In their brief, Respondents apparently concede that
there were threats to close the job down but claim that they
were for only two objects-neither of which was unlawful.
Respondents contend that the threats voiced by Anderson,
particularly to Allison , were merely for the object of
obtaining the name of the plumbing contractor . While it is
true that such was an object of the threats, it is clear from
the credited testimony that Anderson , on behalf of both
Respondents, objected to the use of a nonunion subcon-
tractor by Ameron and made it clear that they would not
PLUMBERS & PIPEFITTERS LOCAL 230 111
tolerate it. The reason for Anderson's insistence on
knowing the name of the subcontractor was to confirm his
suspicion that it was nonunion . - Based upon Allison's
credited testimony, it was found that Anderson made it
evident to him that Respondents would not permit a
nonunion subcontractor on the job and would attempt to
shut it down unless a union subcontractor were used. It
appears that Anderson assumed that Ameron was a party
to a contract with Respondent Council requiring Ameron
to use union subcontractors (although there was no such
contract between said parties). Since Anderson represented
himself as a business representative of Respondent Union
and also was objecting to the use of a nonunion
subcontractor because he thought it was in violation of an
agreement which he believed existed between Ameron and
Respondent Council, it is inferred that his threats were
made on behalf of both Respondents and were for the
object of causing Ameron to cease doing business with
Hartig in violation of Section 8(b)(4)(ii)(B) of the Act .2
On, or shortly before, April 19, 1973, Anderson must
have learned that a contract did not exist between Ameron
and Respondent Council, for on that date he sent a letter
on behalf of Respondent Council requesting that such a
contract (the contract referred to hereinabove) be executed
by Ameron. It is clear from the accompanying letter and
the credited testimony of Allison and Anderson with
respect to statements made by him on April 23 that on
behalf of Respondent Council he was threatening to picket
unless a contract were signed. General Counsel does not
contend that, if the contract sought by Respondent
Council were lawful under the construction proviso in
Section 8(e) of the Act, the threat to picket for such a
contract would be violative of the Act, but does contend
that said threat to picket had a second object which is
unlawful (of causing Ameron to cease doing business with
Hartig). It appears that Respondent Council had not, on
April 23, abandoned the object of causing Ameron to cease
doing business with a nonunion subcontractor, in addition
to the object of obtaining the proposed contract .3
Therefore it is concluded that Respondent Council, on
April 23, 1973, was attempting to coerce Ameron into
ceasing to do business with Hartig in violation of Section
8(b)(4)(ii)(B) of the Act even though the agreement which
it was attempting to obtain at that time is lawful under
Section 8(e) of the Act (as found hereinbelow). The fact
that Respondent Council may have had a lawful concur-
rent object is immaterial . International Brotherhood of
Electrical Workers, Local Union No. 11 (L. G. Electric
Contractors, Inc.), 154 NLRB 766, 767. Los Angeles
2 Even if a contract between Ameron and the Council prohibiting the use
of nonunion subcontractors had existed, it would not afford a defense, since
it is well established that such a provision may be enforced only through
lawsuits and not by threats, coercion , or restraints prescribed by Section
8(bx4)(B ) of the Act . Ets-Hokin Corporation, 154 NLRB 839, 842
3 Anderson testified with respect to his conversation with Jansen on
April 23 as follows: "And at this tune I still didn't know whether we had a
union or a nonunion sub on the job, so I give him that week to sign this
Building Trades agreement ..." This statement ambiguously linking in one
sentence the presence of a nonunion subcontractor on the job with the
pressing for the proposed agreement with Ameron affords a basis for no
more than a suspicion that Respondent Council intended to use the
agreement, if it obtained it, against Hartig.
Building and Construction Trades Council (Golding and
Jones, Inc.), 161 NLRB 729, 730.
General Counsel, however, further contends that the
aforementioned building trades agreement is not lawful
under Section 8(e) of the Act and that Respondent
Council's admitted threat to obtain its execution was
violative of Section 8(b)(4)(ii)(A) and (B) of the Act.
General Counsel argues that articles V and IX of the
agreement have an "intent and object" which are "second-
ary." His argument is as follows:
Thus, the articles specifically hold a contractor respon-
sible for the delinquencies of a subcontractor and
permit cancellations of the Agreement and sanction
refusals to perform work or engage in strikes, thereby
discouraging the doing of business with a delinquent
subcontractor. Moreover, the clear meaning of these
articles makes them secondary in effect. Thus, they
permit Respondent Council or its affiliates, although
engaged in a primary dispute over unpaid wages and
fringe benefits with a subcontractor, to enmesh a
neutral general contractor into the dispute, shift all
liability to the latter, and, in effect, make it the
guarantor of the subcontractor's obligations.
On the other hand, the Respondent Council argues that
said provisions in the agreement are within the construc-
tion proviso in Section 8(e).4 Under said proviso the mere
fact that certain provisions in a contract are secondary in
nature does not make them unlawful.
In the main, General Counsel relies on Calhoun Dry-Wall
Company, 153 NLRB 1196. While said case does involve
provisions in the general contractor's agreement which are
similar to the provisions in issue in this proceeding, said
case is inapplicable to the issues herein. In the cited case,
the respondents therein threatened to enforce the guaran-
tor provision with respect to a nonunion subcontractor
which was not obligated to pay the wages and fringe
benefits that respondents claimed the general contractor
guaranteed under its contract. The Board found that if the
general contractor made payments provided for in the
guarantee provision of the contract, such payments would
have been "strictly a penalty" imposed on the general
contractor for failing to subcontract to a union subcontrac-
tor and that such a threat constitutes a violation of Section
8(b)(4)(ii)(B) of the Act. The issue to be decided in
determining whether the threat to picket Ameron to obtain
the proposed agreement is violative of Section 8(b)(4)(ii)(A)
and (B) of the Act is whether or not on its face the
agreement demanded by Respondent Council is violative
of Section 8(e).
4 Sec. 8(e) in its pertinent part provides as follows:
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
such extent unenforceable and void: Provided, That nothing in this
subsection (e) shall apply to an agreement between a labor organization
and an employer in the construction industry relating to the
contracting or subcontracting of work to be done at the site of the
construction... .
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has already been found hereinabove that Respondent
Council violated Section 8 (bX4)(ii)(B) at the time it
threatened to picket on April 23 to obtain the proposed
agreement (because it had an unlawful concurrent object
of attempting to cause Ameron to cease doing business
with Hartig). Merely because Respondent Council had
such an unlawful object at the time it sought the agreement
from Ameron does not make the contract itself violative of
Section 8(e) or the other object (of obtaining the contract)
unlawful under Section 8(b)(4) (ii)(A) of the Act.5
It appears that the proposed agreement is clear and
unambiguous . It provides that all work performed on the
jobsite be performed pursuant to an agreement with the
appropriate union affiliated with Respondent Council; that
the contractor can only subcontract work on the jobsite
which is in the jurisdiction of any union affiliated with
Respondent Council to a subcontractor signatory to a
contract with said union ; that the contractor, in his
contract with the subcontractor, require that the subcon-
tractor be responsible for the payment of all the wages and
fringe benefits provided under the subcontractor 's agree-
ment with the appropriate union affiliated with Respon-
dent Council; and that the contractor, in effect , guarantee
such payment . Article IX of the agreement contains a
provision for self-enforcement of the agreement with the
exception of article IV (the requirement that union
subcontractors be used).
The Respondent Council relies, in the main, on J. K.
Barker Trucking Company, 181 NLRB 515. It is noted in
said cited case the Board found that similar provisions for
guaranteeing the obligations of the subcontractor were not
clearly unlawful on their face . In the instant case , it does
not appear that the guarantor and self-enforcement clauses
are, on their face , violative of Section 8(e). The guarantor
provision is no more than a device by which the employees
engaged in work at the jobsite are assured of the wages and
fringe benefits provided for in the union contract under
which they are working and to which contract the general
contractor has agreed . In my opinion , such a requirement
falls within the construction proviso in Section 8 (e) of the
Act in that it clearly relates to the contracting or
subcontracting of work to be done at the site. General
Teamsters Local 386, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America
(Construction Materials Trucking, Inc.), 198 NLRB No.
129. The guarantee provision on its face is only applicable
to a situation where a union subcontractor fails to pay the
wages and fringe benefits provided in the union contract to
which the subcontractor is signatory (and to which Ameron
has agreed). Therefore , it does not appear that the
guarantee and self-enforcement provisions on their face
have an unlawful secondary objects Said provisions
cannot be construed- to apply-to-a nonunion subcontractor
5 Sec 8(b)(4)(ii)(A) of the Act provides as follows:
It shall be an unfair labor practice for a labor organization or its
agents-
(u) to threaten , coerce, or restrain any person engaged in commerce or
in an industry affecting commerce, where in either case an object
thereof is : (A) forcing or requiring any employer or self-employed
and therefore could not have been applied to obligations of
Hartig to pay wages and fringe benefits required under a
union contract.
If it were found that threatening to picket to obtain the
proposed agreement is violative of Section 8(b)(4)(ii)(A) of
the Act, a remedy would be required of a cease-and-desist
order restraining Respondent Council from picketing or
threatening to picket to obtain such a contract from
Ameron, or any other employer, even though it is a lawful
contract . Since it is found that the proposed agreement on
its face is not violative of Section 8(e) it would be
inappropriate to issue such an order on the rationale that
in the context of its threatening to picket for a lawful
contract Respondent Council also threatened to picket
with an object of causing Ameron to cease doing business
with Hartig, or on the rationale that Respondent Council
might attempt to put the lawful contract to an unlawful
use. In the event that Respondent Council were to attempt
to enforce the contract for an unlawful object (for example,
attempting to apply it with respect to a nonunion
contractor such as Hartig) it would be guilty of a violation
of Section 8(b)(4)(ii)(B) of the Act, as found in Calhoun
Dry-Wall Company, supra. Whatever Respondent Council
might have had in mind by attempting to get the contract,
a finding of a violation of Section 8 (bx4)(ii)(B) of the Act
cannot be based on a suspected future misuse of the
otherwise lawful contract.
Consequently, it is concluded that General Counsel has
failed to sustain by a preponderance of the evidence the
allegations in Case 21-CC-1481 that Respondent Council
violated Section 8(b)(4)(iiXA) and (B) of the Act on the
ground that the contract is violative of Section 8(e) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of Respondents set forth in
section III, above, occurring in connection with the
operations of the Employers involved herein described in
section I, above , 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.
V. THE REMEDY
It having been found that Respondents have engaged in
certain unfair labor practices, it will be recommended that
they be ordered to cease and desist therefrom and take
certain affirmative action deemed necessary to effectuate
the policies of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
person to join any labor or employer organization or to enter into any
agreement which is prohibited by section 8(e) ...
9 It is noted that Administrative Law Judge Louis S Penfield in his
decision in Joint Council of Teamsters No 42 (Merle Rephagen), Cases
21-CC-1424 and 21-CE-122, JD-(SF)-112-73, and Administrative Law
Judge Maurice M. Miller in his decision in International Union of Operating
Engineers, Local Union No 12 (Griffith Company, et a!), Cases 21-CC-1451
and 21-CE-126, JD-(SF)-184-73, came to the same conclusions with
respect to clauses very similar to the clauses involved in this proceeding
rt.,UMBERS & PIPEFITTERS LOCAL 230 113
CONCLUSIONS OF LAW
1. By threatening to picket the El Centro, California,
jobsite of Ameron Steel Producing Division, on several
occasions in the last part of March and in April of 1973,
with an object of causing it to cease doing business with
Hartig Plumbing Co., Respondents violated Section
8(b)(4)(ii)(B) of the Act.
2. The contract demanded by Respondent Council is
not violative of Section 8(e) of the Act.
3. General Counsel has failed to prove by a preponder-
ance of the evidence the allegations in Case 21-CC-1481
that Respondent Imperial County Building and Construc-
tion Trades Council violated Section 8(b)(4)(ii)(A) and (B)
of the Act on the ground that the contract demanded by
said Respondent is violative of Section 8(e) of the Act.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER?
Respondents , Plumbers and Pipefitters Local No. 230
and Imperial County Building and Construction Trades
Council, their officers, agents, and representatives, shall:
1. Cease and desist from picketing, causing to be
picketed, or threatening to picket the El Centro, California,
jobsite of Ameron Steel Producing Division, or any other
of its jobsites within their territorial jurisdiction, when an
object thereof is to force or require said Company to cease
doing business with Hartig Plumbing Co ., or any other
employer.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post in their 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 21, shall, after being duly signed by an official
representative of each of said Respondents , be posted by
them immediately upon receipt thereof and be maintained
by them for 60 consecutive days thereafter, in conspicuous
places , including all places where notices to their members
are customarily posted. Reasonable steps shall be taken by
the Respondents to insure that said notices are not altered,
defaced , or covered by any other material.
(b) Promptly after receipt of copies of said notice from
said Regional Director return to him signed copies for
posting by Ameron Steel Producing Division, if it be
willing, at its jobsite in El Centro, California, and any other
of its jobsites within the territorial jurisdiction claimed by
Respondents in all places where notices to employees of
said Employer are customarily posted.
(c) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the allegations in the
complaint in Case 21-CC-1481 that the contract demand-
ed of Ameron by Respondent Council is violative of
Section 8(e) of the Act and by reason thereof Respondent
Council's threat to picket to obtain said contract was
violative of Section 8(b)(4)(ii)(A) and (B) of the Act are
hereby dismissed.
7 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
8 In the event that the Board's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT picket, cause to be picketed, or
threaten to picket, Ameron Steel Producing Division's
jobsite in El Centro, California, or any other of its
jobsites within our territorial jurisdiction, when an
object thereof is to force or require said Company to
cease doing business with Hartig Plumbing Co., or any
other employer.
PLUMBERS AND PIPEFITTERS
LOCAL No. 230
(Labor Organization)
Dated By
Dat^d By
(Representative) (Title)
IMPERIAL COUNTY
BUILDING AND
CONSTRUCTION TRADES
COUNCIL
(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, 849
South Broadway, Los Angeles, California 90014, Tele-
phone 213-688-5229.