Central Pennsylvania Regional Council of Carpenters

National Labor Relations Board - Board Decisions

Aug 1, 2002

337 N.L.R.B. 1030 (N.L.R.B. 2002)

1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Central Pennsylvania Regional Council of Carpenters
of the United Brotherhood of Carpenters and
Joiners of America, AFL–CIO and Novinger’s,
Inc. Case 4–CE–118
August 1, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND
COWEN
On March 15, 2001, Administrative Law Judge Earl E.
Shamwell Jr. issued the attached decision. The Respon­
dent filed exceptions and a supporting brief, and the
General Counsel and the Charging Party filed answering
briefs. In addition, the General Counsel filed cross-
exceptions and the Charging Party filed cross-exceptions
and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs,
and has decided to affirm the judge’s rulings, findings,
and conclusions as modified and explained below and to
adopt the recommended Order as modified.
The judge found that the Respondent Union violated
Section 8(e) by its maintenance of an antidual-shop
clause with a secondary objective, i.e., article V, section
6 of its collective-bargaining agreement with Charging
Party Novinger’s, Inc. We agree, and we affirm the
judge’s decision subject to our discussion of several mat­
ters below.1
1. In finding that the complaint in this case was not
barred by Section 10(b),2 the judge properly relied on
several instances within the 10(b) period where the Re­
spondent took steps to pursue its grievance alleging a
violation of the contract provision at issue here. Al­
though the grievance was filed before the 10(b) period,
these instances constitute “reaffirmation,” “mainte­
nance,” and “giving effect” to the disputed provision, and
thus “entering into” an 8(e) agreement, within the 10(b)
1 Member Liebman participated in Teamsters (Active Transportation
Co.), 335 NLRB No. 68 (2001), a case outside the construction indus­
try, in which the Board dismissed an 8(e) complaint, following Painters
District Council 51 (Manganaro Corp.), 321 NLRB 158 (1996), and
Carpenters District Council of Northeast Ohio (Alessio Construction),
310 NLRB 1023 (1993). In her view, the judge’s finding of a violation
in this case under Alessio and Manganaro is fully consistent with the
dismissal in Active Transportation. While she questions Alessio ’s
analysis of the interplay between Sec. 8(e), its construction industry
proviso, and antidual-shop clauses (see Alessio , supra at 1026–1029),
she acknowledges that Alessio , and Manganaro as well, are current
Board law, and she affirms their application in this case on that basis.
2 Sec. 10(b) provides, in pertinent part, that no complaint shall issue
based on an unfair labor practice occurring more than 6 months prior to
the filing of the unfair labor practice charge.
period. Dan McKinney Co., 137 NLRB 649, 653–657
(1962). See, e.g., Iron Workers (Southwestern Materi­
als) , 328 NLRB 934, 935 (1999).
2. We do not rely on the judge’s discussion of the Re­
spondent’s single-employer defense. The judge con­
cluded that the Charging Party, Kelly Systems, Inc., and
Novinger Group, Inc. are not a single employer. How-
ever, the complaint alleged that article V, section 6 vio­
lates Section 8(e) on its face, i.e., by its express terms it
authorizes unlawful secondary conduct, without regard to
its actual effect on any particular entity. Further, the
complaint does not allege that the Respondent violated
Section 8(b)(4)(B) by pursuit of its grievance filed on
November 6, 1998, and its amended grievance filed Sep­
tember 14, 2000, both of which allege violations of the
disputed contract provision and implicate the three em­
ployers above. Thus there are no allegations in this case
that the Respondent actually engaged in secondary activ­
ity with respect to any entity. Accordingly, it is unneces­
sary to address the question whether the Charging Party,
Kelly Systems, Inc., and Novinger Group, Inc. constitute
a single employer rather than distinct entities. See Team­
sters (Active Transportation Co.) , 335 NLRB 830, 832–
833 (2001).3
3. In his cross-exceptions, the General Counsel re-
quests that we modify the “cease and desist” paragraph
in the judge’s recommended order by broadening its lan­
guage, consistent with the corresponding paragraph in
the judge’s recommended notice, and with the Board’s
remedy and Order in Southwestern Materials, supra at
937. We agree, and we will modify the Order accord­
ingly. We observe as well that our “cease and desist”
remedy prohibits the Respondent from relying on the
contract provision found unlawful here in its pursuit of
the grievances referred to above.
4. We deny the Charging Party’s cross-exception re-
questing that we order the Respondent to withdraw its
grievances. As stated above, the complaint does not al­
lege that the Respondent pursued either grievance in vio­
lation of Sec. 8(b)(4)(B). See Active Transportation, su­
pra, slip op. at 3. Accordingly, our remedy for the Re­
spondent’s 8(e) violation does not and should not require
that the Respondent formally withdraw its grievances.
Rather, as we have explained above, the Respondent is
precluded from relying on article V, section 6 in pursuing
the grievances.
We also deny the Charging Party’s cross-exception
seeking the addition of a “narrow order” paragraph—i.e.,
language requiring the Respondent to cease violating
3 Member Cowen was not on Active Transportation, supra, and does
not find it necessary to rely on the analysis in that case or to express his
view regarding the same.
337 NLRB No. 162
CARPENTERS (NOVINGER’S, INC.) 1031
Section 8(e) in any like or related manner. A remedial
paragraph of this kind would be redundant to the para-
graph we have added to the Order in response to the
General Counsel’s cross-exception, discussed above. In
addition, Board precedent indicates that a “narrow order”
paragraph is unnecessary in remedying an 8(e) violation.
See Teamsters Local 36 (California Dump Truck Own­
ers), 249 NLRB 386 fn. 2 (1980), enfd. 669 F.2d 759
(D.C. Cir. 1981), affd. sub nom. Shepard v. NLRB, 459
U.S. 344 (1983).
ORDER
The National Labor Relations Board adopts the rec­
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Central
Pennsylvania Regional Council of Carpenters of the
United Brotherhood of Carpenters and Joiners of Amer­
ica, AFL–CIO, its officers, agents, and representatives,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1.
“1. Cease and desist from entering into, giving effect
to, or enforcing the ant-dual shop provisions of art icle V,
section 6 in its collective-bargaining agreement with
Novinger’s, Inc.”
Richard Wainstein, Esq., for the General Counsel.

Ira H. Weinstock, Esq., of Harrisburg, Pennsylvania, for the

Charging Party.
Bruce D. Bagley, Esq. (McNees, Wallace & Nurick), of Harris-
burg, Pennsylvania, for the Charging Party.
DECISION
STATEMENT OF THE CASE
EARL E. SHAMWELL JR., Administrative Law Judge. Original
unfair labor practice charges were filed against Central Penn­
sylvania Regional Council of Carpenters of the United Brother-
hood of Carpenters and Joiners of America, AFL–CIO (the
Respondent) by Novinger’s, Inc. (the Employer) on August 24,
1999. Based on these charges, the Regional Director for Re­
gion 4 of the National Labor Relations Board (the Board) is-
sued a complaint on October 27, 1999, alleging that the Re­
spondent violated Section 8(e) of the National Labor Relations
Act (the Act) by entering into, maintaining, and giving effect to
an agreement wherein the employer agreed not to do business
with another employer or person. The Respondent timely filed
its answer to the complaint on November 5, 1999, essentially
denying the commission of any unfair labor practices.
This matter was originally set for trial on September 14,
2000, at the Philadelphia Regional Offices of the Board. How-
ever, on September 11, 2000, in a telephone conference call,
the parties herein, namely the General Counsel, the attorneys
for the Employer, Novinger’s, Inc., and the Respondent Central
Pennsylvania Regional Council of Carpenters of the United
Brotherhood of Carpenters and Joiners of America, AFL–CIO,
indicated that they jointly desired to petition the undersigned
Administrative Law Judge to waive a formal hearing of the
matter and consider this matter pursuant to a stipulated record.
Accordingly, on September 12, 2000, the Regional Director
issued an order postponing the scheduled hearing indefinitely.
On October 10, 2000, the parties herein submitted to me a mo­
tion styled “Stipulation on Waiver of Hearing and Joint Motion
to Set Date for Filling of Briefs,” in which they agreed that the
unfair labor charge, the complaint, the answer, the September
12, 2000 Order postponing hearing indefinitely and the stipula­
tion of facts, and other attachments designated as joint exhibits
would constitute the entire record in this case and that no testi­
mony would be necessary to decide the case. Additionally, the
parties waived a formal hearing before me. On October 31,
2000, by Order, I granted the parties’ aforementioned motion
and approved the stipulation of facts and admitted it and the
other joint exhibits into evidence; furthermore, the parties were
given until November 15, 2000, to file briefs.1 The parties
were further notified that I might determine, after a review of
the stipulated record and the briefs, that additional evidence
(documentary or testimonial) may be required to resolve the
issue(s) presented in this case.
On consideration of the entire record in this case, including
the briefs filed by the parties, I make the following.
FINDINGS OF FACT
I. JURISDICTION
Novinger’s, Inc., a Pennsylvania corporation with a primary
office and place of business in Harrisburg, Pennsylvania, en-
gages in the construction of interior and exterior walls and ceil­
ings of commercial, industrial, or institut ional dwellings and
buildings. During the past year, in the course and conduct of its
business operations, Novinger’s purchased and received goods
valued in excess of $50,000 directly from points outside the
Commonwealth of Pennsylvania. The Respondent admits, and
I would find and conclude that, at all times material herein,
Novinger’s has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATI ON INVOLVED
The Respondent admits, and I find and conclude that it has
been, and is, a labor organization within the meaning of Section
2(5) of the Act.
III. RELEVANT FACTS2
The Employer is a wholly owned subsidiary of its parent
company—Novinger Group, Inc. (N.G.). N.G. also owns an-
other subsidiary company, Kelly Systems, Inc. (Kelly). James
Novinger is president of N.G., the Employer, and Kelly, and
owns a majority of the shares of N.G. As president and major­
ity shareholder, James Novinger possesses ultimate authority
1 The parties jointly requested an extension of time for filing of
briefs, which request was granted by Chief Administrative Law Judge
Robert A. Giannasi on November 7, 2000. The parties were given a
new date of December 8, 2000, to file briefs.
2 In this section, I have incorporated, in part, the parties’ stipulated
and agreed-upon facts verbatim; in other cases, I have paraphrased the
stipulations to meet my stylistic choices, but without changing the
factual content. Notably, I have drawn inferentially, where deemed
appropriate, certain conclusions from the stipulations.
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
over the operations of all three entities.3 The Employer and
Kelly are both engaged in the installation of dry wall (or gy p-
sum), board walls, and ceilings in the commercial construction
industry and, to an extent, share some equipment commonly
used in the drywall construction industry.4
The Respondent and the Employer are parties to a collective-
bargaining agreement (the agreement) effective by its terms
from May 1, 1998, through April 30, 2003.5
Pursuant to the agreement, the Employer employs carpenters
who are members of and represented by the Respondent. Kelly
is not a signatory to the agreement but employs carpenters and
operates with a nonunion work force.6
Article V, section 6 of the agreement provides (in pertinent
part) as follows:
Article V. section 6. The employers stipulated that any of
their subsidiaries or joint venture to which they may be parties
when such subsidiaries or joint venture engage in multiple
dwelling, commercial, industrial or institutional building con­
struction work shall be covered by the terms of this agreement.
. . . It is agreed that any dispute relating to the above Recogni­
tion and Union Security clause cannot be resolved between
representatives of the Keystone Contractors Association and the
Central Pennsylvania Regional Council of Carpenters shall be
submitted to arbitration.7
The language of article V, section 6 has been included in
prior collective-bargaining agreements between the parties
since 1982.
Sometime in October 1998, the Respondent obtained infor­
mation that Kelly was performing drywall construction work
3 The part ies have also stipulated that the three entities have one
common Secretary, namely Patrick A. Hospodavis. Furthermore, the
three entities are all Pennsylvania corporations and each maintains an
office and principal place of business at 1213 Paxton Church Road,
Harrisburg, Pennsylvania.
4 The parties disagree only to the extent to which the two companies
share equipment. The Respondent contends that the Employer and
Kelly “commonly” use each other’s scaffolding, fax machinery, dump­
sters, trucks, and gang boxes. The General Counsel contends that the
use of the equipment between the companies is merely “occasional” or
“sporadic,” that most of the equipment is separately purchased and
maintained by the two companies. See Jt. Exh. 5, stipulation 9.
5 The collective-bargaining agreement in its entirety is contained in
Jt. Exh. 6.
6 The parties have not expressly stipulated to the nonunion status of
Kelly’s work force; however, this fact is conceded by the Employer in
its brief as well as by the nature of the controversy between the parties.
(See C.P. Br. at p. 2 and Jt. Exh. 7.)
7 Art. V is captioned “Recognition and Union Security” and contains
five other sections which, in the main, purport to secure and maintain
the Union’s role as exclusive bargaining representative for negotiated
wages, hours, and other terms and conditions of the Employer’s em­
ployees and their required membership in the Union. It should be noted
that the clause refers to employers because the agreement is an area
collective-bargaining agreement between the Respondent and the Key-
stone Contractors Association and American Subcontractors Associa­
tion of Central Pennsylvania. The term “employers” refers to “those
employers who have granted bargaining authorization to [Keystone and
American] and future employers desiring to avail themselves of the
benefits derived herein as a signatory to this Agreement.” (See Jt. Exh.
6, pp. 3–4.)
but that Kelly was not performing the work in accordance with
the collective-bargaining agreement. Accordingly, on Novem­
ber 6, 1998, the Respondent wrote to the Employer and advised
that the Union was filing a grievance against the Company for
violation of article V, section 6 of the agreement. The Respon­
dent’s grievance letter, in pertinent part, reads as follows:
Dear Mr. Novinger:
As a member of the American Subcontractors Association of
Central Pennsylvania, and therefore, a signatory employer to
the collective bargaining agreement with the Central Pennsyl­
vania Regional Council of Carpenters (formerly known as
Keystone District Council), Novinger’s, Inc. is bound by the
terms of that agreement with respect to the employment of
Union carpenters. Pursuant to Article V, Section 6, the firms
doing business under the names of Kelly Systems and
Novinger Group, Inc. are likewise subject to the terms of the
collective bargaining agreement. Therefore, the failure of
Novinger’s Inc./Novinger Group, Inc./Kelly Systems to en-
sure that all employees maintain good standing membership
in the Union after the seventh (7th) day of employment spe­
cifically violates Article V, Section 3 of the collective
bargaining agreement. Accordingly, you should consider this
a grievance reduced to writing pursuant to Article IX of the
collective bargaining agreement. We are seeking a make
whole remedy for all work performed by non-Union per­
sonnel in violation of the collective bargaining agreement.
. . . However, if you fail to respond to this letter within seven
(7) days, we will submit the matter to the American Arbitra­
tion Association for selection of an arbitrator in accordance
with article IX of the collective bargaining agreement.
Very truly yours,
IRA H. WEINSTOCK 8
On November 25, 1998, the Respondent sent the following
letter to the American Arbitration Association (AAA) in Phila­
delphia:
AMERICAN ARBITRATION ASSOCIATION

230 South Broad Street

Philadelphia, PA 19102

RE Central Pennsylvania Regional Council
of Carpenters and Novinger’s Inc.
Dear Sir/Madam:
Please be advised that a dispute exists between
Novinger’s Inc. and the Central Pennsylvania Regional
Council of Carpenters. I am enclosing the grievance pre­
viously submitted to Mr. James Novinger, President of
Novinger’s, Inc. Please send a panel of arbitrators to the
undersigned, as attorney for the Union, and to Norman
White, Esquire, attorney for Novinger’s. Mr. White’s ad-
dress is: McNEES, WALLACE & NURICK, 100 Pine
Street, P. O. Box 1166, Harrisburg, Pennsylvania 17108-
1166.
If you have any questions, please feel free to contact
me.
Very truly yours,
8 This letter is contained in Jt. Exh. 7.
CARPENTERS (NOVINGER’S, INC.) 1033
IRA H. WEINSTOCK 9
Sometime in early 1999, the AAA scheduled an arbitration
hearing on the grievances before Arbitrator John Skonier for
August 30, 1999.
Consequently, on and after February 24, 1999,10 the Respon­
dent initiated several steps pursuant to its prosecution of the
grievance. For example, on July 26, 1999, the Respondent
served a subpoena duces tecum on the Employer in connection
with the scheduled hearing on the grievance. On August 6,
1999, the Respondent requested from the Employer certain
additional information for the arbitration hearing. On August
16, 1999, the Respondent requested that the Employer accept
service for certain subpoenas from the Respondent in connec­
tion with the arbitration hearing.
However, the Employer, in anticipation of filing the instant
unfair labor practice charge (which, as noted, was filed on Au-
gust 24, 1999), requested by letter dated August 23, 1999, that
AAA postpone the scheduled arbitration hearing; on August 27,
1999, AAA postponed the hearing on the grievance over the
Respondent’s objection. On December 8, 1999, AAA con-
firmed by letter the agreement of the Respondent and the Em­
ployer that the grievance arbitration hearing be held in abey­
ance indefinitely.
However, on September 14, 2000, the Respondent sent the
following letter to the Employer:
Dear Mr. Novinger:
As you are aware, the Union filed a grievance on No­
vember 6, 1998. The subject matter of the grievance is
part of an NLRB proceeding. The Union wishes to amend
the grievance to allege a violation of the entire contract for
the failure of Novinger’s Inc./Novinger Group, Inc./Kelly
System to abide by all the terms and conditions of the con-
tract between the American Subcontractors Association of
Central Pennsylvania and the Central Pennsylvania Re­
gional Council of Carpenters.
Your conduct violates the “ Statement of Policy” Sec­
tion, Article 5—Recognition and Union Security, as well
as other terms of the contract. You should consider this an
amended grievance or, in the alternative, a new grievance
reduced to writing pursuant to Article 9 of the collective
bargaining agreement. The Union is seeking a make-
whole remedy for all work performance by non-union per­
sonnel in violation of the collective bargaining agreement.
It is the Union’s position that this grievance be an amend­
ment to the grievance that was filed on November 6, 1998
or, in the alternative, a new grievance retroactive to May
1, 1998.
Very truly yours,
IRA H. WEINSTOCK 11
9 This letter is contained in Jt. Exh. 8.

10 The parties have stipulated and agreed that this date commences

the limitations period covered by Sec. 10(b) of the Act for the instant
charge. (See stipulations of fact 13.) I would find and conclude that
this date on the record would correspond to the limitations period under
the Act.
11 This letter is contained in Jt. Exh. 9.
On September 20, 2000, the Employer responded to the Re­
spondent in the following correspondence (in pertinent part) to
Mr. Weinstock:
Dear Mr. Weinstock:
I have reviewed your letter of September 14, 2000,
with Counsel.
As you know the Union’s November 6, 1998 grievance
has been found by the NLRB Regional Director to be
unlawful on its face. We therefore do not recognize any
right by the Union to “amend” a grievance which is
unlawful on its face. Additionally, we object to any at-
tempt to “amend” a grievance almost two years after the
filing of the grievance. Please be assured that if the No­
vember 6, 1998 grievance is ever actually arbitrated, we
will certainly renew our objection before the arbitrator and
we reserve our right to challenge arbitrability. In addition,
the grievance as amended is denied on its merits.
With regard to your request that we treat your letter of
September 14, alternatively, as a new grievance retroactive
to May 1, 1998, the new grievance is denied on the basis
that it has not been filed timely. Also, it is Novinger’s po­
sition that the purported new grievance violates Section
8(e) of the NLRA, just as did the November 6, 1998 griev­
ance. Additionally, the purported new grievance is denied
on its merits.
Very truly yours,
NOVINGER’S, INC.
By:/s/
James David Novinger12
President
III. THE ALLEGED UNFAIR L ABOR PRACTICES
A. The Respondent’s Arbitration Deferral Defense
In its brief, the Respondent argues that by virtue of its having
amended the grievance on September 14, 2000, to include other
violations of the agreement, 13 namely the statement of policy
12 See Jt. Exh. 10.
13 The agreement on page 3 contains the following “Statement of
Policy”:
It is mutually recognized that this Agreement is the result of
cooperative effort between the Keystone Contractors Associa­
tion and American Subcontractors Association of Central PA,
hereinafter referred to as KCA and ASA, and the Central
Pennsylvania Regional Council of Carpenters of the United
Brotherhood of Carpenters and Joiners of America, hereinaf­
ter referred to as the Union, in an effort to secure greater stabi­
lization and more harmonious working conditions for the men
employed. The provisions of this Agreement have been ar­
rived at by proper collective bargaining. In view of these
facts, it is the duty of both Employers and Representatives of
the Union to accept the terms of the Agreement as set forth as
being those to be enforced during the life of the Agreement,
and it is understood that Both Employers and Union Repre­
sentatives will endeavor to carry out to the fullest degree the
intent and letter of the Agreement.
1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
section and article V generally, the grievance in toto, as
amended, should be deferred to arbitration. The General Coun­
sel counters and contends that a deferral to the parties’ griev­
ance-arbitration procedure is not appropriate. I would agree
with the General Counsel. My reasons are as follows.
Article IX of the agreement governs arbitral matters
and states (in pertinent part):
Any and all disputes, complaints, controversies or
grievances whatsoever between the Union or any employ­
ees and the Employer, which directly or indirectly arise
under, out of, or in connection with or in any manner re-
late to this Agreement, or the breach thereof, or the acts,
conduct or relations between the Parties shall be adjusted
as follows:
(a) The matter shall first be reduced to writing and
taken up and between the representatives of the Union,
which may be the Steward, and the aggrieved employee, if
he so desires, and the representative of the Employer, and
they shall attempt to settle the same.
(b) If settlement satisfactory to the Parties cannot be
reached in twelve (12) hours from the time the matter is
first presented under (a), it shall be submitted to the Busi­
ness Representative of the Union and the representative of
the Employer who must attempt to arrive at a settlement
satisfactory to the Parties within twenty-four (24) hours
from the time the matter is first presented under (b).
Should the representatives of the Union and the Employer
fail to reach a satisfactory settlement within the said
twenty-four (24) hours, and should the Union or the Em­
ployer demand arbitration, the two representatives shall
during this same period endeavor to select an impartial ar­
bitrator by agreement to her [sic] hear the dispute.
. . . .
(e) The decision of the arbitrator whether selected un­
der (b) or (d) hereof shall be final and binding upon the
parties hereto. In the event that any party shall fail to ap­
pear before the arbitrator selected under (b) or (d) hereof
after due notice shall have been given to such party, the
arbitrator is hereby authorized to render a decision on the
testimony of the party appearing.
. . . .
(g) The above procedure shall constitute the exclusive
method of the handling of all disputes, complaints, contro­
versies or grievances between the parties hereto, except
those disputes, complaints, controversies or grievances
which are hereinafter set forth as excluded from the opera-
Notably, art. V contains five other provisions generally relating to
covered employers’ recognition of the Union as the sole and exclusive
bargaining representative of unit employees and union security, that is
requiring among other things that membership in good standing in the
Union be a condition of employment for all employees of the employer;
with discharge mandated for noncompliance; and prohibiting union
members from working for any contractor unless covered by the
agreement. See agreement, pp. 6-7. The General Counsel has not
charged that these provisions, sec. 1-5, are in any way violation of Sec.
8(e) of the Act although, as noted, the Employer also regards the
amended grievance as violative of Sec. 8(e). This decision will only
deal with the alleged unlawfulness of art. V, sec. 6.
tion of the no-strike, no-stopping, no-lockout, no-picketing
provision hereof. Furthermore, there shall be no proceed­
ings in any court over matter within the scope of this Arti­
cle. [Agreement at pages 9–10.]
Clearly, the pertinent provisions of the arbitration section of
the agreement indicate the parties’ intention to settle disputes of
virtually any kind or description arising under the contract
through the stated arbitral process. Accordingly, the Respon­
dent’s request for deferral of the instant charge is not without
reasonable support. However, the Board has stated that it will
decline to defer to arbitration where the issues on which [the
Respondent] seeks deferral are the fundamental lawfulness of
[contract clauses] themselves, rather than questions about the
validity of their interpretation or attempted application in par­
ticular factual circumstances. Carpenters (Mfg. Woodworkers
Assn.), 326 NLRB 321 (1998). In Carpenters, the Board also
noted that it not defer to arbitration issues involving the appli­
cation of statutory policy standards and criteria, rather than
only the interpretation of the contract itself. Id. at 322. Thus,
under Board standards, certain issues in question are deemed
not to be susceptible to interpretation under the operation of a
contract’s grievance-arbitration machinery. More pointedly,
the Board also has recognized that, in any given dispute, an
arbitrator or the use of one does or may not provide assurances
that the unfair labor practice issue relating to a violation of
Section 8(e) will be resolved and that there may be questions
raised regarding the arbitrator’s authority to determine whether
a violation of the Act has occurred through the action of a party
to the agreement.14 The instant dispute, in my view, does not
lend itself to resolution through the arbitral process for similar
reasons. First, the lawfulness of article V, section 6 of the
agreement is at issue, not its interpretation. Second, while the
arbitrator here may indeed have plenary authority to resolve
disputes under the agreement, there is no guarantee that he/she
would look beyond the contract and consider statutory princi­
ples necessary to resolving the 8(e) issue. For these reasons, I
would deny the Respondent’s request for deferral to arbitration
under the parties’ agreement.
B. The Respondent’s 10(b) Procedural Defense
The Respondent defends against the allegation in the com­
plaint on grounds of Section 10(b) of the Act, arguing that the
Act precludes consideration of the instant matter because the
underlying charges were filed outside of the 6-month limitation
period.15
The Board has long held that Section 8(e)16 essentially pro-
scribes the “entering into” of an agreement whereby the em-
14 See International Organization of Masters (Seatrain Lines) , 220
NLRB 164 (1975), and Iron Workers Pacific Northwest Council (Hoff­
man Construction), 292 NLRB 562 (1989).
15 Sec. 10(b) of the Act provides, in pert inent part:
. . . Provided, That no complaint shall issue based upon any unfair
labor practice occurring more than six months prior to the filing of the
charge with the Board and the service of a copy thereof upon the person
against whom such charge is made . . . .
16 The relevant portion of Sec. 8(e) of the Act provides:
CARPENTERS (NOVINGER’S, INC.) 1035
ployer agrees to cease doing business with another person, and
the maintenance, enforcement, and reaffirmation of such an
agreement within the 10(b) period constitutes an “entering into”
within the meaning of Section 8(e).17 It is undisputed here that
at least as of February 24, 1999, the beginning of the 10(b)
period, the Respondent continued to pursue the original article
V, section 6 grievance of November 25, 1998, by serving on
the Employer a subpoena duces tecum in connection with the
arbitration hearing scheduled for the grievance; requesting of
the Employer on August 16, 1999, additional information for
the arbitration hearing scheduled for August 30, 1999; re-
quested that the Employer accept service for certain subpoenas
from it in connection with the scheduled arbitration hearing;
and on September 14, 2000, after the filing of the instant unfair
labor practice charge, seeking to amend the original grievance
to include additional provisions of the agreement. Under estab­
lished Board law, demands by a union pursuant to the contract
arbitral process that the employer comply with the terms of the
agreement encompassing alleged violations of Section 8(e) may
constitute a reaffirmation of the disputed clause and a mainte­
nance of its enforceabililty. Teamsters Local 467, 265 NLRB
1679, 1681 (1982), enfd. 723 F.2d 915 (9th Cir. 1983). The
Respondent, however, contends that while its filing of the
original grievance was an act furthering enforcement of the
instant clause, its subsequent actions were minor ministerial
acts insufficient to constitute acts of reaffirmation or mainte­
nance of the enforceability of the offending clause. Thus, the
Respondent would argue that in order for the conduct on its part
to rise to the level of a reaffirmation or maintenance of the 8(e)
clause, there must be something more to the conduct to take it
beyond the de minimis or ministerial. The Respondent submits
that the employer’s interests must actually in some substantial
way be harmed during the 10(b) period by the conduct under-
taken by the union pursuant to the enforcement of the clause in
question.18
It shall be an unfair labor practice for any unfair labor organiza­
tion 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, transport­
ing or otherwise dealing in any of the products of any other em­
ployer, or to cease doing business with any other person, and any
contract or agreement entered into heretofore or hereafter contain­
ing such an agreement shall be to such extent unenforceable and
void: Provided, That nothing in the subsection (e) shall apply to
an agreement between a labor organization and an employer in
the construction industry relating to the contracting or subcon­
tracting of work to be done at the site of the construction,altera­
tion, painting, or repair of a building, structure, or other work . . .
17 Gaslight Club, 248 NLRB 604, 606 (1980); Bricklayers Local 2
(Gunnar I. Johnson), 224 NLRB 1021 (1976); International Organiza­
tion of Masters, Mates & Pilots (Seatrain Lines) , 220 NLRB 164
(1975); Carrier Air Conditioning Co. v. NLRB, 547 F.2d 1178 (2d Cir.
1976); Sydney Danielson v. International Organization of Masters,
Mates and Pilots, 521 F.2d 747, 754 (2d Cir. 1975); NLRB v. Sheet
Metal Workers Local 28, 380 F.2d 827, 829 (2d Cir. 1967). Los Ange­
les Mailers Union 9 [Hilboro Newspaper Printing Co.] v. NLRB, 311
F.2d 121 (D.C. Cir. 1962).
18 The Respondent cites as examples of the type of harm that must be
visited on the Employer during the 10(b) period, union strikes predi-
I have examined the authorities cited by the Respondent and
conducted additional research on the subject. I have not found
any Board authority that supports the Respondent’s argument
that the reaffirming or maintenance acts of the Respondent
must be of a certain degree or quality within the 10(b) period in
order to constitute entering into a prohibited 8(e) agreement.
The long established law is, on the other hand, quite clear. That
is, the prohibition of Section 8(e) extends beyond the mere
initiation of a prohibited obligation, that by enforcing and giv­
ing effect to the clauses in question within the period covered
by the charges, a party may violate the Section. Retail Clerks
Local 770, 138 NLRB 244, 247 (1962). Thus, the Board looks
to the facts and circumstances constituting conduct which may
constitute enforcement of the clauses alleged as violative of
Section 8(e) to determine whether such conduct was within the
10(b) period preceding the charge. If the charged party main­
tains or implements the clauses within the 10(b) period, then
the charge will lie and is not time-barred, irrespective of the
date the parties entered initially into the 8(e) agreement. Dan
McKinney Co., 137 NLRB 649, 652 (1962). Significantly, the
words “enter into” must be interpreted broadly and encompass
the concepts of reaffirmation, maintenance, or giving effect to
any agreement that is within the scope of Section 8(e). Thus,
the Board does not even require that both the contracting union
and the employer take action to implement the contract clause
during the period covered by the charge to satisfy the “entering
into” language; the action of one or both will suffice to estab­
lish the violation. Dan McKinney Co., supra, at 654.
Accordingly, the Respondent’s 10(b) defense is, in my view,
without merit. I would find and conclude for purposes of Sec­
tion 10(b) that the Respondent’s actions, as recited above, dur­
ing the 10(b) period were sufficient to constitute a reaffirmation
of the disputed clause and maintenance of its enforceability by
the Respondent. Teamsters Local 467, supra.
C. The 8(e) Case on the Merits
The General Counsel (and Charging Party) contends that the
provision—article V, section 6 of the agreement—is unlawful
under Section 8(e) on its face and that the Respondent reaf­
firmed the provision and maintained its enforcement by relying
on it in the grievance initially filed in November 1998.19 The
essence of the General Counsel’s position is that the subsidi­
ary/joint venture provision is facially over-broad, especially in
its coverage of and application to the Employer’s joint venture
partners and joint ventures “where the work in question is being
cated on enforcement of the 8(e) clause; (Greater St. Louis Automotive
Trimmers & Upholsterers Assoc., 134 NLRB 1363 (1961)); employees
refusal to cross a neutral gate reserved for them ((Bricklayers Local 2,
224 NLRB 1021 (1976)); and the parties actually entering into a new
contract that included the offending provisions. (Sheetmetal Workers
Local 216, 172 NLRB 35 (1968)).
19 The General Counsel has specifically disavowed any contention
that the Respondent’s object here was to apply the agreement for a
secondary purpose, or that the grievance itself violates Sec.
8(b)(4)(ii)(B) of the act. The General Counsel also took no position
regarding the relationship between the three corporate entities involved
here—the Employer, Kelly, and Novinger Groups—contending that the
relationship is irrelevant where the charges go to a facially unlawful
contract clause.
1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
performed by joint venture partners who are separate employers
and whose labor relations with other employees are not con-
trolled by the signatory Employer” (G.C. Br. at p. 9.)20
The Respondent defends on several grounds: (1) Section
8(e) does not apply in the instant case because the Employer
here is a single employer and as such cannot be said to have
entered into an agreement to cease doing business with any
other persons; (2) the contract provision is limited to primary
considerations, that is, its object is the preservation of the tradi­
tional work of the employees within the bargaining unit; (3)
that since the Employer possesses the right to control the work
of Kelly and Novinger Group, the provision is self-limiting to
projects the subsidiaries and joint venture may undertake with
each other; (4) the clause was designed by the Employer and
the Respondent to protect against reassignment of union work
to nonunion corporate entities under the Employer’s control;
and (5) the clause is saved by the 8(e) construction industry
proviso.
Discussions and Conclusions
First, regarding the Respondent’s single-employer defense,
the Board holds that in determining whether two (or more)
nominally separate employing entities constitute a single em­
ployer, it will look to four factors—common ownership or fi­
nancial control, common management, interrelation of opera­
tions, and common control of labor relations. No single factor
is controlling and not all need be present. Dow Chemical Co.,
326 NLRB 288 (1998). However, three of the four—the inter-
relation of operations, common management, and centralized
control of labor —are more critical than common ownership or
financial control. Thus, in general, according to the Board,
single-employer status is marked by the absence of an arms-
length relationship between two or more unintegrated entities.
Hahn Motors, 283 NLRB 901 (1987). Recently, the Board
reiterated its long-held position that the most important factor
in deciding whether a single-employer relationship exists is the
control which one party may or may not exercise with respect
to another’s labor relations. Canned Foods, Inc., 332 NLRB
1449 (2000). As noted, the parties have stipulated and agreed
to certain facts touching on this issue, that is (in summary)
James Novinger’s ultimate authority over the operations of the
three entities involved, the sharing of a common secretary,
some common usage of equipment between Kelly and the Em­
ployer, and the interrelation of the drywall functions of Kelly
and the Employer. However, in spite of the opportunity
(through the negotiated stipulations) to deal with the most im­
portant factor, the parties did not address the issue of control,
either of the entities could exercise (or not) over the labor rela­
tions of the other. Therefore, on this record, there is an absence
of evidence that either entity controlled in any measurable way
the labor relations of any other entity. For example, there is no
evidence that the workers of each worked interchangeably—an
unlikely event given the issues here—or that there were any
20 The General Counsel notes on this point that the gravamen of the
Respondent’s grievance is the Employer’s failure to insure that all
employees of Kelly and Novinger Group were members in good stand­
ing; the performance of drywall work with nonunion employees; and
that the Union be recognized as the exclusive bargaining representative.
management personnel common to all entities who could affect
their labor relations. That James Novinger was the “boss” of
all entities and he utilized one individual, Patrick A. Hospo­
davis, as a secretary (whose functions and duties were not de-
fined) for all three companies, does not establish in my view
the requisite control over labor policies for purposes of deter-
mining a single-employer relationship here. Accordingly, I
would find and conclude that there is insufficient evidence of a
single-employer relationship in this matter. In concluding that
the Employer here is not a single employer, then, per force,
Kelly and N.G. are clearly separate employers in my view.
Accordingly, I would reject the Respondent’s argument that
Section 8(e) does not apply to the instant cause because the
Respondent has not establish the critical factor—central control
of labor relations—in the three entities here.21 Therefore, for
purposes of Section 8(e), in my view, the clause in question is
an agreement to cease business with another person.
For purposes of Section 8(e) analysis, the Board employs the
following analytical framework to disputed contract clauses.
An agreement is unlawful under Section 8(e) if (1) it is an
agreement of a kind described in the basic prohibition of that
Section—e.g., an agreement to cease doing business with an-
other person; (2) it has a secondary, as opposed to primary
work preservation, objectives; and (3) it is not saved by coming
within the terms of the construction industry proviso to Section
8(e). Carpenters District Council of Northeast Ohio (Alessio
Construction), 310 NLRB 1023, 1025 (1993).
In Southwestern Materials and Supply,22 the Board opined in
further refinement of principles applicable to 8(e) contract
clauses, stating:
Section 8(e) of the Act generally forbids parties from enter­
ing into a collective-bargaining agreement in which an em­
ployer agrees to refrain from dealing in the product of another
employer or to cease doing business with any other person.
However, not every collective-bargaining agreement with a
“cease doing business” objective is necessary unlawful. It is
well established that contract clauses that fall within the literal
proscription of Section 8(e) are nevertheless lawful if they have
the primary objective of preserving or protected work per-
formed by the employees of the employer bound by the con­
tractual proviso. Moreover, even clauses that are secondary in
nature and therefore within the general proscription of Section
8(e) may be lawful if they satisfy the requirements for an ex­
emption under the construction industry proviso to Section 8(e).
Thus, in analyzing clauses (such as here), the first question
to be answered is whether the clause is secondary in nature or
has the primary objective of preserving bargaining unit work.
If it is concluded that the clause has a work preservation objec­
tive, the clause will be found to be lawful. On the other hand, if
it is concluded that the clause has a secondary purpose, then the
21 The Board has emphasized that the common control must be ac­
tual or active as distinguished from potential control. Western Union
Corp., 226 NLRB 274, 276 (1976), and discourages judges from mak­
ing findings on the basis of unsubstantial inferences. Canned Foods,
supra, at 2.
22 328 NLRB 934 (1999).
CARPENTERS (NOVINGER’S, INC.) 1037
clause will be found to be illegal under Section 8(e) unless it is
saved from illegality by the construction industry proviso.
In NLRB v. Longshoreman ILA, 447 U.S. 490, 504 (1980),
(ILA I), the Supreme Court took the view that in order for an
agreement to be a lawful work preservation agreement, it must
pass two tests. First, it must have as its objective the preserva­
tion of work traditionally performed by employers represented
by the union. Second, the contracting employer must have the
power to give the employees the work in question—the so-
called right of control test of [NLRB v. Enterprise Assn. of
Pipefitters, 429 U.S. 507 (1977)]. The rationale of the second
test is that if the contracting employer has no power to assign
the work, it is reasonable to infer that the agreement has a sec­
ondary objective, that is, to influence whoever does have such
power over the work.
Applying these principles to instant case, I would conclude
and find that the clause in article V, section 6 of the agreement
clearly on its face is an agreement to cease doing business with
another person, namely the Employers’ own subsidiaries or
joint ventures to which it may be a party when such subsidiaries
or joint venture engage in various categories of commercial
drywall construction work, unless such subsidiaries or joint
venture parties agree to be covered by the contract between the
Respondent and the Employer. Thus, as argued by the General
Counsel, on its face, article V, section 6 would seemingly re-
quire the Employer to sever its relationship(s) with its own
subsidiaries or other joint venture partners—employers—who
would not or could not comply with the parties’ agreement.
The next issue is whether the provision has a primary or sec­
ondary objective. As noted, the Respondent argues the “self-
limiting nature” of the provision to the Employers’ own sub­
sidiaries and its joint venture partners doing work typically and
traditionally by employees represented by the union. The Re­
spondent submits that the provision merely reflects the Union’s
reaction to encroachment of nonunion shops on the traditional
work performed by union shops. The General Counsel argues
to the contrary that the provision facially has secondary objec­
tives in that it applies to the Employer who, as the contracting
employer, has no power to assign work or has control of the
labor policies of its subsidiaries or joint venture partners.
I would find and conclude that the language of the instant
clause is overly broad mainly but not solely because it makes
no distinction between joint venture partners of the Employer
over whom the Employer may have the so-called right of con­
trol of labor policies and those over whom it may not. Contrary
to the Respondent, I do not believe the clause is self-limiting by
its literal terms. The language of the clause is not ambiguous;
consequently, I need not consider the Respondent’s explication
of its intent or objective.23 Said another way, it seems clear to
me that the clause, by its terms, is not solely addressed to the
labor relations of the contracting Employer vis a vis his own
employees. In my view, because it would apply to the Em­
ployer’s joint venture partners any and everywhere situated
23 See General Teamsters Local 982 (J. K. Barber Trucking Co.),
181 NLRB 515 (1970), affd. 450 F.2d 1322 (D.C. Cir. 1971), where the
Board stated that if the meaning of the clause is clear, the Board will
determine fort hwith its validity under Sec. 8(e).
within the ambit of the commercial drywall industry, the clause
seems aimed at fostering the Respondent’s own organizational
interests as opposed to the unit employees’ job security. Team­
sters Local 814, 225 NLRB 609, 611 (1976).24
I have carefully considered two primary cases cited by the
Respondent in support of its contention that the provision here
has a primary work preservation objective—Carpenters (Mfg.
Woodworkers Assn., 326 NLRB 321 (1998), and Manganaro
Corp., 321 NLRB 158 (1996)—and I would find them factually
distinguishable from the instant case. Notably, in both cases,
the provisions in question were markedly different from the
instant provision in that the work preservation purpose of both
was clearly and amply delineated in the collective-bargaining
agreements considered by the Board. The Board’s approval of
these provisions that it viewed protected all work heretofore
performed by unit employees (Carpenters) and work which
they had performed (Manganaro), in my view, was predicated
on this clear statement of lawful purpose and objective. Here,
the clause and verily the agreement as a whole in no way
proximate the precise and limiting language considered in these
decisions. In my view, article V, section 6 takes a shotgun
approach and, as such, is clearly over-broad in its reach. Ac­
cordingly, I would conclude that the provision on its face is
proscribed by Section 8(e). Thus, unless it falls within the con­
struction industry proviso relating to outside work, as argued by
the Respondent, the provision in question cannot be saved.
In Iron Workers (Southwestern Materials), supra, the Board
stated that “[I]n Carpenters District Council (Alessio Construc­
tion), the Board strictly construed the construction industry
proviso to exclude antidual shop clauses from among the cate­
gories of secondary activity that Congress intended to be toler­
ated in the construction industry.”25
An antidual shop clause is a clause aimed at prohibiting or
discouraging a unionized employer’s maintenance of an affilia­
tion with a nonunion company in a double breasting arrange­
ment. Double breasting is a corporate arrangement, found typi­
cally in the construction industry in which a unionized em­
ployer forms, acquires, or maintains a separately managed non-
union company.26
The General Counsel contends that the clause here is similar
to the antidual shop clauses held to be unprotected in South-
western Materials and Alessio Construction by the Board.
Thus, he argues that the clause, being facially unlawful, cannot
be saved by the construction industry proviso. I would agree
with the General Counsel, consistent with the Board’s holding
in Operating Engineers Local 520 (Massmen Construction
Co.), 327 NLRB 1257 (1999). In that case, the Board had oc­
casion to examine a collective-bargaining agreement negotia­
tion in which the Union demanded an agreement which would
include a provision prohibiting the signatory employer from
entering into any joint venture or joint work undertaking, unless
24 The Respondent’s broad organizational interests evidently are bot­
tomed on its fears of the encroachment of nonunion shops on work
traditionally performed by union shops. (R. Br., pp. 11–12.)
25 328 NLRB 934, 937 (1999).
26 Carpenters District Council (Alessio Construction), 310 NLRB
1023 (1993).
1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
all parties to the contract for the joint venture also accepted and
were bound by the collective-bargaining agreement. However,
one of several construction contractors (of a builders’ associa­
tion) refused to agree to the clause, and the union engaged in a
1-day work stoppage, picketing one of the refusing contractor’s
worksites which resulted in a 1-day shutdown of the site. The
Board, inter alia, held the clause violated Section 8(e) because
the clause was viewed as an unlawful attempt to control the
signatory employer’s business relationships (and, hence, secon­
dary in nature). The Board further found the clause in question,
a joint venture clause like the antidual shop clause [in Alessio],
fell outside the protections of the construction industry proviso.
Id. at 2.
Therefore, I would find and conclude the instant clause, as
contained in article V, section 6, is an antidual shop clause and
not protected by the construction industry proviso of Section
8(e).
CONCLUSIONS OF LAW
1. By entering into, maintaining and reaffirming an agree­
ment with Novinger’s, Inc. that contained an antidual shop
provision (the subsidiary joint venture provision of art. V, sec.
6), the Respondent has violated Section 8(e) of the Act.
2. The above unfair labor practice affects commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain un­
fair labor practices, I shall recommend the issuance of an order
directing it to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, and pursuant to Section 10(c) of the Act, I issue
the following recommended27
[Recommended Order omitted from publication]
27 See, General Teamsters Local 982 (J. K. Barber Trucking Co.),
181 NLRB 515 (1970), affd. 450 F.2d 1322 (D.C. Cir. 1971), where the
Board stated that if the meaning of the clause is clear, the Board will
determine fort hwith its validity under Sec. 8(e).