Teamsters Local Union No. 89

National Labor Relations Board - Board Decisions

Jan 26, 1981

254 N.L.R.B. 783 (N.L.R.B. 1981)

TEAMSTERS LOCAL UNION NO. 89
General Drivers, Warehousemen and Helpers of
America, Local Union No. 89, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America
and Robert E. McKee, Inc. Case 9-CE-42
January 26, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
Upon a charge filed by Robert E. McKee, Inc.
(herein called McKee), on January 30, 1979, and
duly served on General Drivers, Warehousemen
and Helpers of America, Local Union No. 89, af-
filiated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America (herein called Respondent), the General
Counsel of the National Labor Relations Board,
acting through the Regional Director for Region 9,
on April 3, 1979, issued and served on Respondent
a complaint and notice of hearing. The complaint
alleges that Respondent entered into, maintained,
and gave effect to an agreement containing subcon-
tracting clauses which violate Section 8(e) of the
National Labor Relations Act, as amended. On
April 6, 1979, Respondent duly filed an answer to
the complaint in which it denied the commission of
any unfair labor practices.
Thereafter, on April 30, 1979, Respondent,
McKee, and counsel for the General Counsel ap-
peared before Administrative Law Judge Robert C.
Batson and requested that the record be opened for
the purpose of receiving an all-party stipulation of
facts and exhibits. The parties agreed that the
charge, the complaint and notice of hearing, the
answer to the complaint, the stipulation of facts
read into the record, and the exhibits received by
the Administrative Law Judge constitute the entire
record in this case and that no oral testimony is
necessary or desired by any of the parties. The par-
ties further stipulated that they waive a hearing
before an administrative law judge, the making of
findings of fact and conclusions of law by an ad-
ministrative law judge, and the issuance of an ad-
ministrative law judge's decision, and desire to
submit this case directly to the Board for findings
of fact, conclusions of law, and a Decision and
Order.
On July 24, 1979, the Board issued an order ap-
proving the stipulation and transferring the pro-
ceeding to the Board. In the Order, a date was set
for the filing of briefs, and the parties were specifi-
cally requested to address the issue of whether the
Truck Drivers Agreement (herein called TDA)
submitted into the record as General Counsel's Ex-
254 NLRB No. 93
hibit 2, contains self-enforcement provisions which,
when read in conjunction with the disputed articles
1.6, 1.6(A), and 1.16 of the agreement, remove said
articles from whatever protection they might oth-
erwise enjoy under the construction industry provi-
so to Section 8(e). Thereafter, Respondent, McKee,
and the General Counsel filed briefs in support of
their positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record
herein as stipulated by the parties and hereby
makes the following findings and conclusions:
1. THE BUSINESS OF THE EMPLOYER
McKee is a Nevada corporation engaged in the
business of general construction and construction
contracting in various States of the United States
including its Audubon Plaza location at Louisville,
Kentucky, the only location involved in this pro-
ceeding.
From April 1978 to April 1979, a representative
period, McKee purchased and received goods and
materials valued in excess of $50,000 which were
shipped to its Louisville, Kentucky, location direct-
ly from points outside the Commonwealth of Ken-
tucky. The parties stipulated, and we find, that
McKee is, and has been at all times material herein,
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE ABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Respon-
dent is, and at all times material herein has been, a
labor organization within the meaning of Section
2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Stipulated Facts
Respondent and the Construction Employer's
Association, Inc. (herein called CEA), entered into
a collective-bargaining agreement known as the
Truck Drivers Agreement (TDA), effective from
June 1, 1977, to midnight May 31, 1980. McKee is
a party to the TDA by virtue of its membership in
CEA. The TDA contains the following provisions
entitled article 1.6, 1.6(A), and 1.16, and article 4.1
and 4.2:
1.6: The operations covered hereby are all
construction operations, including alteration,
remodeling, maintenance, repairs and wrecking
undertaken by members of the ASSOCI-
ATION, and the delivery by the ASSOCI-
783
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ATION members on the site of work of build-
ing materials....
1.6(A): The Employer agrees not to subcon-
tract any work on the jobsite, which is the ju-
risdiction of the Union, unless the contractor
to whom the work is subcontracted, has signed
agreement or agrees to sign the agreement
before starting the job.
* * * * *
1.16: On all construction projects where ma-
terial is delivered directly to the jobsite, the
loading, unloading and distribution of materials
and the handling of tools and materials to the
first drop or point of delivery is the recog-
nized jurisdiction of the Teamsters.
* * * * *
4.1: The ASSOCIATION shall appoint a
Standing Committee of two (2) persons, and
the UNION shall appoint a Standing Commit-
tee of two (2) persons to promote the oper-
ation of this Agreement.
4.2: Without first going through the griev-
ance procedure as outlined herein, there shall
be no stoppage of work on account of any and
all disputes of every type and character, which
may arise between the parties hereto (save the
two (2) exceptions reserved below)....
When the Joint Arbitration Committee or
impartial Arbitrator renders a grievance award
under this Article, there shall be stated in the
award a time limit for the losing party to
comply fully with the Award.... The losing
party shall have the right . . . to contest such
Award . . . but, if the losing party does not
do so . . . then the UNION shall have the
right to enforce the Award by resort to eco-
nomic recourse against the non-complying
EMPLOYER .
Exception 1. If the dispute involves the ju-
risdiction of the UNION, with the jurisdiction
of any other Union or Unions, then the dispute
shall be resolved according to law, provided,
however, that an opportunity be first given to
the UNION to attempt to settle the jurisdic-
tional dispute with the other Union within ten
(10) days from date such dispute arose.
Exception 2. If the dispute be one of inter-
pretation of Statute Law, then such dispute
shall be resolved according to law.
McKee and various subcontractors are engaged
in construction work at the Audubon Plaza jobsite
(herein called the jobsite or the site) in Louisville,
Kentucky. Among the subcontractors are Western
Dry Wall Company (herein called Western) and
Abram Roofing Company (herein called Abram).
Neither Western nor Abram has any bargaining re-
lationship with Respondent.
During the period since October 1978, Western
and Abram have engaged and continue to engage
their own employees to make deliveries of materi-
als, in their own trucks, from their own ware-
houses located approximately 3 to 5 miles from the
jobsite directly to drop points on the site. Similar
deliveries are made of crushed stone and other ma-
terials from gravel pits off the jobsite to drop
points on the site. In some instances, the employees
making the deliveries have been working at the
jobsite on the day of the delivery and have taken
trucks from the site, proceeded to the respective
warehouses, gravel pits, or similar offsite locations,
picked up the necessary materials, and returned to
the jobsite. In other instances, the deliveries have
been made by employees working at the ware-
houses, who hauled the necessary materials in
trucks from the warehouses to drop points at the
jobsite.
In addition, both Western and Abram have en-
gaged and continue to engage their own employees
to move material from one point on the jobsite to
other points on the site. It is undisputed that the
employees of Western and Abram, who are not
represented by Respondent, have historically per-
formed the above-described work.
On November 7 and 18, 1978, and on February
2, 1979, Respondent, through its member James
Richardson, filed grievances concerning deliveries
made by the employees of McKee's subcontractors
including Western and Abram. The grievances
assert that, under articles 1.6, 1.6(A), and 1.16 of
the TDA, all of the above-described work present-
ly performed by the subcontractors' employees
who are not represented by Respondent must be
performed by members of Respondent. Respondent
has requested and continues to request that these
grievances be submitted to arbitration pursuant to
the grievance procedure set forth in the TDA. On
February 26, 1979, the grievance committee agreed
to withhold a final decision on the grievances
pending a decision by the Board in the instant case.
B. Contentions of the Parties
The General Counsel contends that the subcon-
tracting provisions in the TDA violate Section 8(e)
because they have a secondary objective, and, as
such, are presumptively unlawful unless privileged
784
TEAMSTERS LOCAL UNION NO. 89
by the construction industry proviso to Section
8(e). The General Counsel further contends that
the provisions are not privileged by the proviso be-
cause they appear on their face to include work
done off the construction site, which falls outside
the purview of the proviso. In addition, the Gener-
al Counsel contends that, even if the provisions on
their face do not include off-site work, it is clear
that Respondent seeks to apply the provisions to
such work. Finally, the General Counsel asserts
that article 4.2 of the TDA contains "self-help"
provisions which remove the subcontracting provi-
sions from the protection of the proviso. The con-
tentions of the Charging Party are essentially the
same as those of the General Counsel.
Respondent contends that the subcontracting
provisions as applied by Respondent are primary in
that they seek to retain work for unit employees
and that the provisions are therefore not proscribed
by Section 8(e). Respondent further contends that
under the Board's decision in Woelke and Romero
Framing, Inc., 2 the subcontracting provisions are
protected by the construction industry proviso to
Section 8(e) because they apply to work on the
construction site and are in the context of a collec-
tive-bargaining relationship. In this connection, Re-
spondent argues that the "self-help" provisions in
the TDA do not apply to the subcontracting provi-
sions and do not, therefore, remove said provisions
from the protection of the construction industry
proviso. Finally, Respondent asserts that its use of
the contractual grievance procedure is not prohibit-
ed by Section 8(e).
C. Discussion and Conclusions
The subcontracting provisions at issue herein are
contained in the TDA which became effective on
June 1, 1977, a date more than 6 months prior to
the filing of the charge in the instant case on Janu-
ary 30, 1979. In November 1978, a date within the
6-month period prior to the filing of the charge,
Respondent, through its member James Richard-
son, filed grievances relating to the subcontracting
provisions.
Section 8(e) of the Act3 forbids only the "enter-
ing into" of an agreement whereby the employer
I For ease of reference. the contentions of the General Counsel and the
Charging Parly are hereafter referred to as hose of the General Counsel
2 Carpenters Local No. 944. United Brotherhood of Carpenters and Join-
ers of America, AFL-CIO and Carpenters Local No, 235, United Brother-
hood of Carpenters and Joiners f' 4terica, .AFL-CI (Woelke & Romero
Framing, Inc.), 239 NLRBI 241 (1978X), enforcement denied in relevant
part 609 F 2d 1341 (9th Cir. 1980). Motion for rehearing en hane granted.
105 LRRM 2496 (August 29. 1980).
a Sec. 8(e) of the Act provides in relevant part
It shall he a unfair laxbor practice for any labor organizalion and
any employer to enter into any contract or agreement. express or im-
plied, whereby such employer ceases or refrains or agrees o cease
or refrain from handling, using, selling. transporting r others ise
agrees, inter alia, to cease doing business with an-
other person. The Board has found that seeking to
enforce such an agreement constitutes "entering
into" within the meaning of Section 8(e). 4 We find
that Respondent in the instant case, by filing griev-
ances, sought to enforce the agreement within the
10(b) period, thereby bringing the agreement
within the purview of Section 8(e).
It is well settled that contract clauses which are
limited to primary considerations, such as the pres-
ervation or protection of the traditional work of
employees in the bargaining units represented by a
labor organization, are not proscribed by Section
8(e) of the Act.
The initial issue to be resolved here, therefore, is
whether the thrust of the disputed clauses is prima-
ry and hence lawful, or whether it is secondary
and, accordingly, unlawful.
In approaching such an issue the Supreme Court
has stated:
The determination of whether the [chal-
lenged contract provision] violated [Section]
8(e) and [Section] 8(b)(4)(B) cannot be made
without an inquiry into whether, under all the
surrounding circumstances, the Union's objec-
tive was preservation of work for [the con-
tracting employer's] employees, or whether
the agreements . . . were tactically calculated
to satisfy union objectives elsewhere. . .. The
touchstone is whether the agreement or its
maintenance is addressed to the labor relations
of the contracting employer vis-a-vis his own
employees. 6
In Woelke & Romero Framing, Inc., supra, the
Board applied its analysis of the primary-secondary
clause distinction as articulated in California Dump
Truck Owners Association :
Section 8(e) of the Act makes it an unfair
labor practice for an employer and a union to
dealing in any of the products of any other employer, or Io cease
doing business with any other person, and any contract or agreemlcenl
entered into hereltofore or hereafter containing such an agreement
shall he to such extent unenforceable and void Provided. That noth-
ing in this subsection (e) shall apply to an agreement between a labor
organizationr and an employer in the construction ndustry relatng o
the contracting or subconracting of work to he done at the it' if
the construction. alteraltion, partling or repair of a building, struiC
lure, or other wosrk
4 ll! and Relaulranl Ep/l,,r'5, anrd Bac,lndcrn' I ion, s. 51 53i
(4nge/u 4uto Park, Inc. and Elnic Corrpsoralion d ha I ;n,,rgo lll
Bnwll, 237 NLRH 12(1 (1978).
.'allotna/l Woodwork anu/tacturng .-lssociaton. a \ L.R B. t3.n
U S 612 ( 1067).
s Id al 644-645
* Iueais. Ifsrhwu. Building ltnd C onrnctiron Iu'arltcrn Cornrmmnirl fr
Northern (aliornia, Irlnrnational Brothelrho io liam.ltcr. C'haujJiur.
W'arehoosemen ad lI0per o 4inri-sa l al W(ah/iJ)ria [)urip ru,l
O()v'rscr. .lojiaititn). 22' NIRB 26', 22 l'th) hen'sMember Fanning
and Memnlher enkins lissenlng in part)
785
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enter into an agreement, express or implied,
whereby the employer agrees to cease dealing
in the products of any other employer or to
cease doing business with any other person. A
literal construction of this section suggests the
illegality of any agreement which results in
preventing the employer from establishing a
business relationship with another employer,
or which causes him to break off a relationship
already established. The section, however, has
not been construed to outlaw all agreements
which produce such results.
Contract clauses which purport to limit sub-
contracting to employers who are signatories
to union contracts, so-called union signatory
clauses, and contract clauses which purport to
acquire for bargaining unit employees work
which has traditionally been performed by em-
ployees of other employers, so-called work ac-
quisition clauses, have been held to violate the
Act. Such clauses are viewed as not being de-
signed to protect the wages and job opportuni-
ties of unit employees covered by the contract,
but as directed at furthering general union ob-
jectives and undertaking to regulate the labor
policies of other employers. Absent a direct re-
lationship to protection of the work of unit
employees, such clauses are considered as
having an unlawful secondary effect and are
proscribed by Section 8(b)(4) and (e).
On the other hand, however, contract
clauses whose basic aims are to limit been per-
formed by them, or in some instances to recap-
ture work regarded as fairly claimable, so-
called unit protection clauses, and contract
clauses designed to limit subcontracting of unit
work to employers who maintain the same
standards of employment, thus minimizing the
economic incentive to subcontract, so-called
union standard clauses, have been held to be
lawful. The underlying rationale for the lawful
character of unit protection and union stan-
dard clauses is that the union has a primary in-
terest in preserving unit work for unit employ-
ees and to insure that negotiated standards will
not be undermined.
Respondent contends that its subcontracting
clause is a lawful work preservation clause. We dis-
agree. Respondent's subcontracting clause, article
1.6(A) of the TDA, requires the Employer to agree
"not to subcontract any work on the jobsite, which
is the jurisdiction of the Union, unless the contrac-
tor to whom the work is subcontracted, has signed
agreement or agrees to sign the agreement before
starting the job." This clause goes beyond the pro-
tection of traditional bargaining unit work for bar-
gaining unit employees, and is a union signatory
clause of the type the Board has consistently found
to be secondary in nature because it is not con-
cerned with the labor relations of the contracting
employer-McKee here-vis-a-vis its employees,
but with the labor relations of other employers or
firms with whom McKee might do business.8 Ac-
cordingly, we find that article 1.6(A) is a union sig-
natory clause which is proscribed by Section 8(e)
of the Act, unless it is saved by that section's con-
struction industry proviso.
In Woelke & Romero Framing, Inc., supra, we
found, inter alia, that the construction industry pro-
viso, as we construed the Supreme Court's Connell
decisions concerning the proviso, permits similar
union signatory subcontracting clauses which, as
here, are in the context of a collective-bargaining
relationship and relate only to construction work
performed on the jobsite. However, the General
Counsel contends that the clauses at issue herein,
although in the context of a collective-bargaining
relationship, do not come within the scope of the
proviso because, on their face, they appear to
cover work which is not performed on the con-
struction jobsite. In support of his contention the
General Counsel asserts that article 1.16 apparently
modified both article 1.6 and 1.6(A).
Article 1.6 of the TDA describes the scope of
the operations covered by the contract and pro-
vides in part that "The operations covered hereby
are all construction operations, including alteration,
remodeling, maintenance, repairs and wrecking un-
dertaken by members of the ASSOCIATION, and
the delivery by the ASSOCIATION members on
the site of work of building materials." Article
1.6(A), the subcontracting clause, provides in part
that "The Employer agrees not to subcontract any
work on the jobsite, which is the jurisdiction of the
Union .... " Article 1.16 describes the Union's ju-
risdiction and provides in part that "the loading,
unloading and distribution of materials and the han-
dling of tools and materials to the first drop or
point of delivery is the recognized jurisdiction of
the Teamsters."
It has long been held that the delivery of materi-
als to a construction site does not constitute
"onsite" work.10 Thus a subcontracting clause
s Woelke & Romnero Framing. Inc.. supra, 239 NLRB at 247.
Connell Construction Co., Inc v. Plumber & Steamfitters ocal Union
,o I0. etc., 421 I.S 616 (1975)
"' International Brotherhood of l'eamsters Chauffiurs, Warehousemen
and IHelpers of America. ocal 294 (Island Doc(k Lumber. Inc ) 145 NILRB
484 (63); General lamtrers. Chauffeurs, Warehousemen and Ielper.
Local 982, itc., I K, Barker rucking Co). 181 NRB 515. 517 518
(1970), ed, sub nom. Joint Council of eamster. Noi. 42. et a, 450 2d
1322 (D.C. Cir 1971); Local Union 'o. 282. aufihiated ith the Iniernation,
al Brotherhood of leaumnrs. (haufj]ur. Warehousemen and elpers of
Amlerla (D) IFortunato. Inc l 197 NLRFB 673 (1972).
786
TEAMSTERS LOCAL UNION NO. 89
which purports to include the delivery of materials
to the jobsite enjoys no protection under the con-
struction industry proviso to Section 8(e).
Article 1.6(A) limits the subcontracting of work
to work "on the jobsite which is the jurisdiction of
the union." The phrase "on the jobsite" supports
the conclusion that the limitations on subcontract-
ing are restricted to "onsite work" and therefore,
within the proviso so interpreted, article 1.6(A) is
lawful on its face. However, the phrase "on the
jobsite" appears to be modified by the phrase
"which is the jurisdiction of the Union," and if the
latter phrase has reference to article 1.16, which
defines the union's jurisdiction as including the de-
livery and handling of tools and materials to the
first drop or point of delivery, article 1.6(A) may
be interpreted as including the delivery of materials
to the jobsite. So read, article 1.6(A) arguably in-
cludes work which the Board has held is offsite
work, and thus the article would not enjoy the pro-
tection of the proviso. Consequently, since article
1.6(A) is arguably subject to two interpretations,
one enjoying the protection of the proviso and the
other outside its protection, we find the clause to
be ambiguous.
In J. K. Barker,' we held that if a clause is am-
biguous the Board will not presume unlawfulness,
but will consider extrinsic evidence to determine
whether the clause was intended to be administered
in a lawful or unlawful manner. Extrinsic evidence
necessary to show unlawful administration of an
ambiguous clause must be based on mutual consent
or acquiescence of the parties to the contract. 12
In the instant case, by filing grievances through
one of its members urging that the subcontracting
clause covers what we find is offsite work, Respon-
dent is clearly asserting an unlawful interpretation
of the clause. " McKee, however, has not agreed
to this interpretation. Rather, as evidenced by its
assertion of a contrary interpretation herein and
during the prearbitration proceeding, it has disput-
ed Respondent's interpretation of the clause. Thus,
the requisite mutual consent or acquiescence is not
present here. We therefore conclude that Respon-
I J. K. Barker Trucking Co.. supra, 181 NLRB at 517
*2 See General I7amsters Local 386. Internaional Brotherhood of leamrn-
srers. Chauffeurs. Warehousemen and IHelpers of.4merca (Construction Ma-
terials Trucking. Inc.), 198 NLRB 1038 (1972). where the Board adopted
the following language of the U.S. Court of Appeals for the District of
Columbia:
To conclude that a contract falling within the letter of Section 8(e)
properly falls within its prohibition there must he either a finding
that both paric.s understood and acquiesced i a secondary sobject for
the term. or a finding that secondary consequences within Sectlion
8(e)s intendment would probably flow from the clause . [Ent-
phasis supplied.]
13 There is no other eidence with respect to how the parties intended
the clause to be administered
dent's attempt to compel McKee to accede to its
interpretation provides no basis for finding that the
contract clause in issue violates Section 8(e). Thus,
we cannot find that the contract unlawfully ex-
tends the prohibitions against subcontracting
beyond jobsite work.
We next turn to the self-enforcement issue.14 At
issue is whether article 4.2 of the TDA contains
"self-help" provisions which intertwine with the
subcontracting clause causing it to lose the afore-
mentioned protection of the proviso.
Article 4 of the TDA outlines the grievance and
arbitration procedure and at 4.2 provides, inter alia,
that "the UNION shall have the right to enforce
the award by resort to economic recourse against
the non-complying EMPLOYER." Thus, under the
contract an arbitration award may be enforced by
the union by resort to economic self-help. In addi-
tion, article 4 contains two exceptions to the
union's right to seek economic recourse: Exception
I, which is applicable to the resolution of jurisdic-
tional disputes with other unions, and Exception 2,
which is applicable to the resolution of disputes re-
quiring statutory interpretation.
Although the proviso to Section 8(e) makes
lawful certain secondary clauses in the construction
industry, the contract cannot provide that they be
enforced by resort to economic self-help. The
main focus of our analysis of self-help clauses and
their legality has been to determine the relationship
between the clause purporting to authorize eco-
nomic action and any secondary clauses limiting
the subcontracting of work. In other words, sub-
contracting clauses and clauses authorizing the
union to engage in economic action independent of
one another, i.e., when a union's right to engage in
economic action specifically excludes a subcon-
tracting clause from its application, do not violate
Section 8(e). If the Board determines that the par-
ties intended that the economic enforcement provi-
sions apply to the subcontracting clauses, violations
of Section 8(e) will be found. Thus, the Board has
found that "self-help" clauses remove otherwise
construction industry "proviso-protected agree-
ments from the scope of that proviso even though
14 Though this issue was not specifically alleged in the complaint. aS
noted above, the Board in its order approving the stipulation requested
the parties to address it
' See Ios 4ngeles Building and Construction Trades Council: and Local
Union .Vo. 1497. niled Broherhod of Carpenters and Joiners of America
(Donald Schriver, Inc. (Sullivan-Kelleyv & Associates, 239 NLRB 24. 270
(1978}; International l/nion of Operating Engineers. Local No 701. AFL-
('10. Oregon-Columbhia Chapter, lhe .4ssciated General Contractor of
4.rlcriia. Inc. (PUaclic N:orthWes ( Chalpter of the .4s.sociated Budder & Con-
tractors. Inc ), 239 NI.RI 274, 277-278 (978), enlforcement denied in rel-
esant part 0)9 F2d 1341 (9th Cir. 198(): Muskegon Bricklavers LUnion #5
Rricklacrs. Ma.son and Pluastrers International U'nion of .4,tnrica (F1.-
(10) (raler Mulskegon (,neral (tlrarctori 4siseiation). 152 N R 3)
(19t5)
787
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the self-help and subcontracting provisions are
found in different articles of the agreement
"16
The language of article 4.2 explicitly confers
upon Respondent the right to resort to economic
recourse in order to enforce an arbitration award,
clearly a self-help provision. 7 Respondent argues,
however, that the matter at issue involves a ques-
tion of statutory interpretation and as such is spe-
cifically excepted from the self-help provisions
under Exception 2; and that its claim is more in the
nature of a jurisdictional dispute, and as such falls
within Exception 1. While the exact meaning of the
phrase "interpretation of Statute Law" in the ex-
ception is subject to various meaning, Respondent
has not pointed to any possible reading of the
clause, and we see none, which would have the
effect of making the self-help provision inapplicable
to an award made by the arbitrator. With respect
to the jurisdictional disputes clause, we fail to see
how that clause has an application here. In any
event, such generalized savings clauses not specifi-
cally addressed to self-enforcement of agreements
protected by the construction industry proviso in
Section 8(e) have not been found to be effective.' 8
Therefore, we find that the self-enforcement provi-
sions of the contract serve to remove the subcon-
tracting clause from the protection it would other-
wise enjoy under the proviso to Section 8(e). Ac-
cordingly, we find that article 4.2 of the TDA vio-
lates Section 8(e) of the Act insofar as it applies to
article 1.6(A) of the collective-bargaining agree-
ment.
THE REMEDY
Having found that Respondent has engaged in an
unfair labor practice, we shall order it to cease and
desist therefrom and to take certain affirmative
action to effectuate the purposes of the Act.
Upon the basis of the foregoing findings of fact
and upon the entire record in this proceeding, we
make the following:
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this pro-
ceeding.
2. The Charging Party, Robert E. McKee, Inc.,
is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
'8 International Union of Operating EIngineers. Local 'o. 7()1. A4 L-
CIO: Oregon-Columbia Chapter, he Associated General Contractors of
America. Inc. (Pacific Northwest Chplter of the Asocurated Builders & Con-
tractors. Inc.). supra at 277,
7 Id.
1s he Essex County and icinity IDistrict Council of Carpenters and
Millwrights. United Brotherhood of Carpenters and Joiners of America,
AFL-CIO (The Associated Contractors of Esvex Cournty. Ine.), 141 NLRIB
858, 869 (1963)
3. The Respondent, General Drivers, Warehou-
semen and Helpers of America, Local Union No.
89, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
4. By entering into, maintaining, and giving
effect to self-help provisions applicable to article
1.6(A) of its 1977-80 collective-bargaining agree-
ment with Robert E. McKee, Inc., General Driv-
ers, Warehousemen & Helpers, Local Union No.
89, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, has violated Section 8(e) of the Act.
5. 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
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
General Drivers, Warehousemen and Helpers,
Local Union No. 89, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Louisville, Ken-
tucky, its officers, agents, and representatives, shall:
1. Cease and desist from entering into, maintain-
ing, giving effect to, or enforcing the self-help por-
tion of article 4.2, insofar as it is applied to the sub-
contracting clause, article 1.6(A), found in Respon-
dent's collective-bargaining agreement, to the
extent found unlawful herein.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its business offices and meeting halls
copies of the attached notice marked "Appen-
dix."' 9 Copies of said notice, on forms provided by
the Regional Director for Region 9, after being
duly signed by an authorized representative of Re-
spondent, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to members are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 19,
in writing, within 20 days from the date of this
' I h event that this Order is enforced by a Judgment of a United
Slates Court of Appeals, the words in the notice reading "Polsted by
)rder ofi Ihc Natioinal 1Ishor Relatlnils Itoard" shall read "Posted Pursu-
ant to a Judgmlent of' the Ulited States Court of Appeals nforcillg n
Order of1 the Nationali I hor Relations Board.'
788
TEAMSTERS LOCAL UNION NO. 89
Order, what steps the Respondent has taken to
comply herewith.
CHAIRMAN FANNING, concurring in part and dis-
senting in part:
Unlike my colleagues, I would find that article
1.6(A), the subcontracting clause, does not extend
the prohibitions against subcontracting beyond job-
site work, and, thus, I would find it lawful on its
face.20 The language of the subcontracting clause
is clear and unambiguous. While article 1.6 broadly
describes the scope of operations covered by the
TDA, and article 1.16 describes the Union's juris-
diction, article 1.6(A) is limited in its application to
onsite work. Thus, 1.6 and 1.16 describe what is
covered by the contract and set forth the limits of
the Union's jurisdiction while 1.6(A) sets forth that
part of the work, namely, the onsite work, which is
subject to the limitation on subcontracting.21 Ac-
cordingly, I would find that article 1.6(A) is a
union signatory clause, in the context of a collec-
tive-bargaining relationship, which on its face limits
subcontracting on the jobsite and therefore enjoys
the protection of the construction industry proviso
to Section 8(e). I would therefore find that Respon-
dent did not violate that section of the Act by
maintaining the subcontracting clause in question.
As for Respondent's attempt through grievances
to compel McKee to accede to an interpretation
and construction of the subcontracting clause
beyond its literal meaning, namely, to extend the
clause's coverage to offsite work, I would find that
such conduct amounted, at most, to an attempt to
compel McKee to enter into a new and different
broadened version of the clause. Thus Respon-
dent's conduct may be characterized as a proposed
modification of the TDA but in the absence of
agreement or acquiescence by McKee there was no
"entering into" within the meaning of Section 8(e).
In these circumstances, I would find that there is
no basis for concluding that Respondent's filing the
above grievances amounted to a violation of Sec-
tion 8(e).22
To this point neither my colleagues nor I would
find a violation, albeit for different reasons. They,
however, go on to find that article 4.2 of the TDA
20 Were I to agree with my colleagues that the clause '.as ambiguous I
would still reach the same result herein since I agree with them, for the
reasons they state, that there is no basis for finding that art I th(AI .iolat-
ed Sec. 8(e)
2 I recognize that the phrase "shlch is the jurisdiction of the Union"
appears after the phrase "work on the jobsite However. I conclude hat
in the context ir which the phrase appears. namel. in reference to "on
the jobsite," this phrase should be read a, " hich Is In the jurisdiction of
the Union" Consequently. unlike mn col leaguies I do not find the suh-
contracting clause ambiguouL
22 Philadelphia Marinc rade .lslocaium,. 151 N RB 1446 ( 1905 Prc
Milk Asociatwn Sidner anzclr & Sons. Inc, 141 NI.R 1237 (19h63)
enfd. 335 F 2d 320 (1964)
constitutes a self-enforcement provision which re-
moves the subcontracting clause, article 1.6(A),
from the protection of the 8(e) proviso, and that,
therefore, article 4.2 violates Section 8(e) insofar as
it applies to article 1.6(A). I disagree.
In my dissenting opinion in Muskegon Bricklayers
Union #5, Bricklayers, Masons and Plasterers Inter-
national Union of America (AFL-CIO) (Greater
Muskegon General Contractors Association), 152
NLRB 360 (1965), I took the position that the mere
existence of self-enforcement features in a contract
does not make the construction industry proviso in-
applicable to the contract and thus I would not
find a violation based on the existence of such a
clause. I still adhere to that view. See my dissent in
Los Angeles Building and Construction Trades Coun-
cil, and Local Union No. 1497, United Brotherhood
of Carpenters and Joiners of America (Donald
Schriver, Inc.) (Sullivan-Kelley & Associates), 239
NLRB 264, 270. International Union of Operating
Engineers, Local No. 701, AFL-CIO, Oregon-Co-
lumbia Chapter, The Associated General Contractors
of America, Inc. (Pacific Northwest Chapter of the
Associated Builders & Contractors, Inc.), 239 NLRB
274, 279 (1978). Accordingly, I would not find that
article 1.6(A) is outside the protection of the 8(e)
proviso merely because of article 4.2, even assum-
ing that the latter article is a self-enforcement pro-
vision as found by my colleagues. Accordingly, I
dissent from that finding and, since I would find
that Respondent has not violated the Act as
charged, I would dismiss the complaint in its en-
tirety.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT enter into, maintain, give
effect to, or enforce that portion of article 4.2
permitting the Union "to enforce the [Arbitra-
tion] Award by resort to economic recourse
against the non-complying EMPLOYER" to
the extent that such action is authorized to
maintain, to give effect to, or enforce the sub-
contracting clause, article 1.6(A), of the collec-
tive-bargaining agreement between Robert E.
McKee, Inc., and General Drivers, Warehou-
semen and Helpers, Local Union No. 89, affili-
ated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, and to the extent that article 4.2
789
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violates Section 8(e) of the National Labor Re-
lations Act.
GENERAL DRIVERS, WAREHOUSEMEN
AND HELPERS, LOCAL UNION No. 89,
AFFILIATED WITH INTERNATIONAL
BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA