Construction, Building Materials & Miscellaneous Drivers, Local No. 83

National Labor Relations Board - Board Decisions

Dec 26, 1985

277 N.L.R.B. 1286 (N.L.R.B. 1985)

1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Construction, Building Materials & Miscellaneous
Drivers, Local No. 83, affiliated with Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and
John Cahill d/b/a Cahill Trucking Company
and Associated General Contractors , Arizona
Chapter ; and Arizona Building Chapter , Associ-
ated General Contractors, Parties to the Con-
tract. Cases 28-CC-627 and 28-CE-28
26 December 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS, JOHANSEN, AND BABSON
On 1 June 1979 Administrative Law Judge
David G. Heilbrun issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed cross-excep-
tions, a supporting brief, and a brief in answer to
the General Counsel's exceptions.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions as explained below and to adopt the
recommended Order.
The' judge found, and we agree, that the Re-
spondent violated Section 8(e) of the Act because
the self-help provisions of its collective-bargaining
agreement are applicable to the agreement's sub-
contracting clause.2 In so finding, however, the
judge stated that, because of the interrelationship
with the self-help provisions, the subcontracting
clause itself "no longer enjoys the protection of the
construction industry proviso to Section 8(e), and
is violative of the Act." We disagree. For reasons
set forth in Jamco Development Corp., 277 NLRB
1281, issued today, we find that, although self-en-
forcement provisions violate Section 8(e) to the
extent that they apply to secondary provisions in
construction industry collective-bargaining agree-
ments, the secondary provisions themselves retain
the protection of the proviso to Section 8(e) and
may be enforced by resort to grievance-arbitration
or judicial processes.
In spite of the overbroad definition of the unfair
labor practice found, however, the judge properly
i The General Counsel has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings
2 We find that the judge's findings regarding art. 1, sec 103, and art
11, sec 1102, of the agreement implicitly encompass all the relevant sub-
sections of those sections set forth in the appendix to his decision Ac-
cordingly, we find no merit in the General Counsel's exceptions to the
judge's failure to denote the specific subsections
limited his cease-and-desist order to the self-help
aspect of the collective-bargaining agreement. Con-
sequently, we will adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Construc-
tion, Building Materials & Miscellaneous Drivers,
Local No. 83, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Phoenix, Arizona, its officers,
agents, and representatives, shall take the action set
forth in the Order`, except that the attached notice
is substituted for that of the administrative law
judge.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT enter into, maintain, give effect
to, or enforce the self-help portions of article 11,
section 1102, of our agreement with Associated
General Contractors insofar as they apply to the
subcontracting provisions of article 1, section 103,
of that agreement.
CONSTRUCTION , BUILDING MATERI-
ALS & MISCELLANEOUS DRIVERS
LOCAL No. 83, AFFILIATED WITH
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMER-
ICA
Kenneth D. Meadows, Esq., for the General Counsel.
Michael J. Keenan, Esq., of Phoenix, Arizona, for the Re-
spondent.
Donald MacPherson, Esq., of Phoenix, Arizona, for the
Charging Party.
Gerard Morales, Esq., of Phoenix , Arizona, for the AGC.
DECISION
STATEMENT OF THE CASE
DAVID D. HEILBRUN, Administrative Law Judge. This
case was heard at Phoenix, Arizona, on January 16,
1979. On November 29, 1977, John Cahill d/b/a Cahill
Trucking Company (Cahill) filed unfair labor practice
charges against Construction, Building Materials & Mis-
cellaneous Drivers, Local No. 83, affiliated with Interna-
277 NLRB No. 133
TEAMSTERS LOCAL 83 (CAHILL TRUCKING)
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America (Respondent). The
charges in Case 28-CE-28 and Case 28-CC-627, as
amended on April 4, 1978, were consolidated and on
August 4, 1978, the Regional Director for Region 28 of
the National Labor Relations Board (the Board) issued a
consolidated complaint and notice of hearing alleging
violations of Section 8(e) and of Section 8(b)(4)(ii)(A)
and (B) of the National Labor Relations Act. It is al-
leged, in part, that Respondent violated Section
8(b)(4)(ii)(A) of the Act by threatening, coercing, and re-
straining Cahill with an object of forcing or requiring
him to enter into an agreement prohibited by Section
8(e), and that Respondent violated Section 8(b)(4)(ii)(B)
of the Act by threatening, coercing, and restraining
Cruse Contracting company with the object of forcing
Cruse to cease doing business with Cahill and with the
further object of causing Cahill to recognize and bargain
with the Union. The particular conduct of Respondent at
issue is (a) the conduct and conversations of Respond-
ent's business agent at the jobsite and (b) Respondent's
action in filing a grievance pursuant to a breach-of-con-
tract theory against Cruse over the subcontracting provi-
sions of a certain "Master Labor Agreement."
Respondent filed an answer admitting the Board's ju-
risdiction' and that the parts of the contract at issue are
part of the Master Labor Agreement, but denied the
commission of any unfair labor practices.
i Cahill, a sole proprietorship, has maintained its principal office and
place of business in Phoenix, Arizona, where it is, and has been at all
times material herein, engaged in business as a common carrier in intra-
state commerce, in the course of which it transports goods, materials, and
supplies In the course and conduct of its business operations Cahill,
during the 12-month period preceding November 1, 1977, derived gross
revenues in excess of $100,000, purchased goods, supplies, and materials
originating outside the State of Arizona valued at a substantial amount
and provided transportation and delivery services valued in excess of
$50,000 to contractors in the construction industry and to other persons
who annually purchase and receive at their places of business in the State
of Arizona goods, materials, and supplies valued in excess of $50,000 I
find that Cahill is an employer engaged in commerce within the meaning
of Sec 2(6) and (7) of the Act and a person engaged in commerce or in
an industry affecting commerce within the meaning of Secs 8(b)(4) and
8(e) of the Act
Cruse, a corporation duly organized under and existing by virtue of the
laws of the State of Arizona, with its principal office and place of busi-
ness in Phoenix, Arizona, is engaged in business as a general contractor
performing construction work in the building and construction industry
During the past calendar year, which period is representative of its
annual operations generally, Cruse purchased and received directly from
points and places outside the State of Arizona goods, materials, and sup-
plies valued in excess of $50,000 I find that Cruse is a person and an
employer engaged in commerce and in an industry affecting commerce
within the meaning of Sec 2(2). (6), and (7) and Sees 8(b)(4) and 8(e) of
the Act
Associated General Contractors, Arizona Chapter and Arizona Build-
ing Chapter, Associated General Contractors (jointly the AGC) are asso-
ciations of employers located in the State of Arizona engaged in the
building and construction industry which were organized and exist for
the purpose of negotiating collective-bargaining agreements with Re-
spondent on behalf of their members Employer members of AGC, in the
aggregate, annually receive directly from points and places outside the
State of Arizona goods, materials, and supplies valued in excess, of
$50,000 1 find that AGC is an association of employers engaged in com-
merce within the meaning of Sec. 2(6) and (7) of the Act
1287
On the entire record,z my observation of the wit-
nesses, and consideration of the briefs filed by the Gener-
al Counsel and Respondent, I make the following
FINDINGS OF FACT AND RESULTANT CONCLUSIONS
OF LAW
Cruse and Respondent are signatory to a document
titled "Master Labor Agreement" with AGC (sometimes
called the Agreement) which is effective by its terms
from July 9, 1976, to May 31, 1979. In July 1977 Cruse,
which was laying a storm drain down 27th Avenue for
the city of Phoenix, hired Cahill, an employer not signa-
tory to the Agreement. It is the position of Cruse, John
Cahill, owner of Cahill, and the General Counsel that
Cahhill functioned merely as a common carrier since his
job consisted of transporting materials to the jobsite
(ABC or crushed aggregate rock used as bedding for the
pipe) and transporting jobsite waste materials (concrete,
asphalt, and dirt) away from the jobsite to a landfill.
Their position is that Cahill and his two employees did
little, if any, work on the jobsite. It is the position of Re-
spondent that Cahill was performing jobsite construction
work not limited to but including a substantial amount of
backfilling. Therefore, it is Respondent's position that
Cruse had subcontracted out work to a nonsignatory em-
ployer in violation of the subcontracting provisions of
the Agreement. Consistent with this position, on July 28,
1977, Respondent filed a grievance with the Arizona
State Joint Conference Board, alleging violations of the
subcontracting provisions of the Agreement and seeking
damages. This grievance was never heard and on Octo-
ber 5, 1977, Respondent refiled the grievance, the dispo-
sition of which was stayed pending resolution of this
unfair labor practice proceeding before! the Board.
The subcontracting provisions at issue, article 1, sec-
tion 103.1-6 and .9, and related article 11, section 1102,
are detailed in an attached appendix. The gravamen of
the consolidated complaint is that Respondent's subcon-
tracting clause, article 1, section 103, is violative of Sec-
tion 8(e) of the Act, and that Respondent's filing of a
grievance in support thereof violated Section 8(b)(4) of
the Act. The General Counsel contends that the subcon-
tracting provision in the current collective-bargaining
agreement is proscribed by Section 8(e) of the Act. Spe-
cifically, the General Counsel urges that the clause is
"secondary" and not privileged by, the construction in-
dustry proviso to Section 8(e) of the Act. In the alterna-
tive, the General Counsel argues that should the subcon-
tracting clause be found to be privileged by the proviso
to Section 8(e), the "self-help" provision in article 11 of
the collective-bargaining agreement i emoves whatever
protection the clause might otherwise enjoy under the
proviso.
Respondent contends initially that the subcontracting
clause is a lawful "primary" clause aimed at protecting
unit work or maintaining union standards. Furthermore,
Respondent contends that even if the subcontracting
clause is "secondary" in nature, it is nonetheless privi-
leged by the construction industry proviso to Section
2 Certain errors in the transcript have been noted and corrected
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(e). Finally, Respondent urges that article 11 of its cur-
rent collective-bargaining agreement is not a "self-help"
clause of the type or character which the Board has
found illegal under Section 8(e) Instead, Respondent
urges that article 1, section 103.6, only authorizes the
subcontracting provisions to be enforced through arbitra-
tion and that the economic enforcement aspects of article
11 are controlled by the phrase "unless statutorily pro-
hibited."
Turning initially to the subcontracting clause itself, it
must be determined whether the clause is primary or sec-
ondary in nature. The distinction between primary and
secondary clauses was spelled out by the Board in Cali-
fornia Dump Truck Owners Assn.3 as follows:
Section 8(e) of the Act makes it an unfair labor
practice for an employer and a union to enter into
an agreement, express or implied, whereby the em-
ployer 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 sec-
tion 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 subcon-
tracting to employers who are signatories to union
contracts, so-called union signatory clauses, and
contract clauses which purport to acquire for bar-
gaining unit employees work which has traditional-
ly been performed by employees of other employ-
ers, so-called work acquisition clauses, have been
held to violate the Act. Such clauses are viewed as
not being designed to protect the wages and job op-
portunities of unit employees covered by the con-
tract, but as directed at furthering general union ob-
jectives and undertaking to regulate the labor poli-
cies of other employers. Absent a direct relationship
to protection of the work of unit employees, such
clauses are considered as having an unlawful sec-
ondary effect and are proscribed by Section 8(b)(4)
and (e).
On the other hand, however, contract clauses
whose basic aims are to limit subcontracting so as
to preserve for unit employees work which has cus-
tomarily been peformed by them, or in some in-
stances to recapture work regarded as fairly claim-
able, so-called unit protection clauses, and contract
clauses designed to limit subcontracting of unit
work to employers who maintain the same stand-
ards of employment, thus minimizing the economic
incentive to subcontract, so-called union standard
clauses, have been held to be lawful. The underly-
ing rationale for the lawful character of unit protec-
tion and union standard clauses is that the union has
a primary interest in preserving unit work for unit
3 Teamsters (California Dump Truck Owners Assn ), 227 NLRB 269, 272
(1976) (then-Member Fanning and Members Jenkins dissenting in part)
employees and to insure that negotiated standards
will not be undermined
The Master Labor Agreement 's section 103.1 requires
the contractor to agree that neither he nor any of his
subcontractors will subcontract work covered by the
Agreement "except to a person, firm , corporation,
broker or developer signatory to the appropriate agree-
ment." This clause goes far beyond protecting traditional
bargaining unit work for bargaining unit employees, for
the clause does not prohibit Cruse from subcontracting
work which Cruse employees perform or could perform,
but rather , expressly permits such subcontracting , albeit
only to employers who are signatory to the current labor
agreement.
Similarly, section 103.1 does not limit subcontracting
to firms which pay their employees the equivalent of the
economic provisions of Respondent's contract but, in-
stead , requires all subcontracting be to employers or
firms who are "signatory " to the Agreement . Therefore,
the provision is neither a valid work -preservation clause
nor a valid union-standards provision . Rather, I find that
the provision is a classic union signatory clause of the
type which the Board has consistently found to be sec-
ondary in nature because it is not concerned primarily
with the labor relations of the contracting employer,
here Cruse, vis-a-vis its employees , but with the labor re-
lations of other employers or firms with whom the con-
tractor, Cruse , might choose to do business.4
Having found that the subcontracting provision is sec-
ondary in its thrust , I now consider the question whether
the provision is nevertheless protected by the construc-
tion industry proviso to Section 8 (e) In assessing wheth-
er a similar subcontracting provision was protected by
this proviso the Board said: " [T]he construction industry
proviso to Section 8(e) permits subcontracting clauses
such as those here in the context of a collective -bargain-
ing relationship ."5 Therefore , I find that since the sub-
contracting provision at issue here was advanced in the
context of a collective -bargaining relationship between
Respondent and Cruse, the provision-article 1, section
103-is privileged by the construction industry proviso
to Section 8(e) of the Act.
Although the proviso to Section 8(e) makes lawful
certain secondary clauses in the construction industry,
these clauses cannot be enforced by resorting to econom-
ic self-help . 6 Thus the Board has held that clauses which
purport to authorize a union to use economic action to
enforce secondary subcontracting provisions will serve
to remove whatever protection the secondary clause
would otherwise enjoy under the proviso to Section
4 Teamsters Local 982 (Barker Trucking), 181 NLRB 515, 519-520
(1970), Electrical Workers IBEW Local 437 (Dimeo Construction), 180
NLRB 420 (1969), Carpenters Local 944 (Woelke & Romero), 239 NLRB
241 (1978)
6 Woelke & Romero, supra at 250
6 Bricklayers Union #S (Greater Muskegon General Contractors), 152
NLRB 360 (1965); Ets-Hokin Corp, 154 NLRB 839 (1965), Dimeo Con-
struction, supra, Barker Trucking, supra, Fresno, Madera, Kings & Tulare
Counties Building Trades Council (Gage Bros Construction), 218 NLRB 39
(1975), Operating Engineers Local 12 (Robert E Fulton), 220 NLRB 530
(1975)
TEAMSTERS LOCAL 83 (CAHILL ' TRUCKING)
8(e).7 Consequently, the question arises whether the sub-
contracting provision of the Agreement, article 1, section
103, when read in conjunction with the self-help provi-
sion, article 11, constitutes a retention of the power of
economic self-help by Respondent sufficient to remove
the clause from the protection of the construction indus-
try proviso to Section 8(e).
Here the self-help clause is in a different section of the
Agreement from the subcontracting clause, but the
Board has found that self help clauses remove otherwise
proviso-protected agreements from the scope of that pro-
viso even though the self-help clause and the subcon-
tracting clause are found in different articles of the
agreement . Consequently, the focus of the analysis is to
determine the relationship between the secondary clause
limiting the subcontracting of work and the clause pur-
porting to authorize economic action. If these clauses op-
erate completely independently of one another, as when
the union's right to engage in economic action specifical-
ly excludes the subcontracting clause, then there is no
violation of Section 8(e). Operating Engineers Local 701
(Pacific Northwest Chapter, Associated Builders), 239
NLRB 274 (1978). When, however, the subcontracting
clause is technically linked to the grievance arbitration
machinery and a union reserves the right to enforce
grievance arbitration awards through economic self-help,
then there is a violation of Section 8(e). In Pacific North-
west, supra at 278, the Board said:
We therefore hold that the immediate object of a
self-help clause (here , the grievance procedure) will
not serve to obscure the underlying dispute which
gives rise to a claim of liability ( in this case , the en-
forcement of a secondary clause). The effect of a
holding to the contrary would be to insulate self-
help clauses (as applied to secondary provisions)
through the device of the grievance procedure.
In the instant case section 1102 of the Agreement
pledges that there will be no strike by employees "for
any reason . . . . provided, however, that cessation of
work shall not be a violation of this Agreement, if it is
solely to protest any of the following exceptions to this
section." (Emphasis added.) One of the exceptions de-
tailed in section 1102.2 is if the Employer fails to abide
by a grievance arbitration award. Furthermore, section
1102.8 specifically authorizes strikes or picketing to en-
force the violations detailed under the exceptions. It
seems clear that a dispute arising under the subcontract-
ing provision-article 1, section 103-would be submit-
ted to the grievance arbitration procedure for settlement
as per section 103.6. However, if the Employer subse-
quently failed to comply with the settlement, Respond-
ent, under section 1102,8, is accorded the right to strike
or picket to enforce the award without being held in vio-
lation of the agreement as per section 1102. Therefore,
though the limitations on subcontracting are technically
linked to the grievance procedure, in actuality section
7 Ets-Hokin Corp, 154 NLRB 839, 842 (1965), and cases cited therein,
enfd sub nom NLRB v Electrical Workers IBEW Local 769, 405 F 2d
159, 162-163 (9th Cir 1968), cert denied 395 U S 921 (1969), California
Dump Truck Owners Assn supra
1289
1102 sanctions economic action to insure compliance
with the subcontracting provision. This result serves to
remove the subcontracting provision, article 1, section
103, from the protection it would otherwise enjoy under
the proviso to Section 8(e).
The only question remaining is whether the phrase
"unless statutorily prohibited" in section 1102.8 is, as Re-
spondent suggests, a sufficiently clear modifier to ensure
that the clause will not be applied in an unlawful
manner. I find no merit in this position. The board's
standard, as enunciated in Pacifrc Northwest, is clear that
"when a union's right to engage in economic action spe-
cifically excludes a subcontracting clause from its applica-
tion," there is no violation of Section 8(e)." (Emphasis
added.) There is no such specific exclusion in this case
and the general phrase "unless statutorily prohibited"
cannot reasonably be construed as a grant of such an ex-
clusion. The adverb "statutorily" is too nebulous, for it
could mean nothing more than without affront to local
public policy. Cf. Linn v. Plant Guards Local 114, 383
U.S. 53 (1966). Consequently, this clause must be inter-
preted within the policy framework the Board espoused
in Pacific Northwest, that the grievance procedure cannot
be used as a device to insulate self-help provisions used
to enforce secondary clauses. Accordingly, I find that ar-
ticle 1, section 103, of the 1976-1979 Master Labor
Agreement, as enforced through article 11, section 1102,
no longer enjoys the protection of the construction in-
dustry proviso to Section 8(e), and is violative of the
Act. Cf. Carpenters (Clyde E. Mitchell), 140 NLRB 471
(1979).
The General Counsel contends that Respondent violat-
ed Section 8(b)(4)(ii)(A) of the Act by seeking to apply
the subcontracting provisions, article 1, section 103, to
offsite work Essential to this contention is the General
Counsel's position that the work done by Cahill on the
jobsite was de minimis, since Cahill was engaged in the
sale and delivery of materials to the jobsite and transpor-
tation of materials away from the jobsite. Respondent's
position is that Cahill was performing jobsite construc-
tion work at the project; therefore, its work falls within
the construction industry proviso to Section 8(e).
I find merit in Respondent's contention. Clearly Ca-
hill's work consisted of more than the transporting of
supplies and materials which would earn him an exclu-
sion from Section 8(e) proviso coverage. See Teamasters
Local 551 (Dravo Corp.), 176 NLRB 801 (1969); Team-
sters Joint Council No. 42 (Inland Concrete), 225 NLRB
209 (1976); Teamsters Local 631 (Reynolds Electrical), 154
NLRB 67 (1965); Teamsters Local 294 (Rexford Sand),
195 NLRB 378 (1972).
Although John Cahill himself did some limited hauling
of ABC pipe bedding material to the jobsite, (approxi-
mately one to two loads per day), his employees did no
such delivery work. As for the work involved in hauling
away from the jobsite, John Cahill testified that he and
his two employees hauled jobsite waste materials from
27th Avenue to a local landfill, but denied that he or his
employees did any "backfilling," "stockpiling" of any
materials, or moving piles of dirt within the project.
However, James Moorehead, one of Cahill's employees,
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said that he hauled waste materials away from the job-
site, but also that he did "backfilling" both at the pipe-
line and around manhole covers. When asked what else
he did, he responded, "Whatever they needed us for."
Moorehead also testified that Cahill employees were op-
erating the same type of equipment, 10-wheel dump
trucks, that Cruse employees were operating and that
they were performing the same jobs as Cruse dump
truck operators. Moorehead took directions on the job-
site from Tom Cocker, Cruse's foreman. Moorehead im-
pressed me as a forthright, truthful witness, whereas
Cahill did not; consequently, where their testimony is at
variance about the types of jobs performed by Cahill em-
ployees, I credit Moorehead's testimony.
It is apparent that Cahill employees did perform onsite
construction work. The question left is whether or not
their onsite work was de minimis as the General Counsel
suggests. I conclude that it was not, based on Moore-
head's credited testimony. Moorehead said that some
days he would spend all day hauling away from the job-
site but other days he would spend all day on the jobsite
engaged in backfilling or other jobsite functions doing
"whatever needed to be done." Consequently, I hold
that Cahill was performing jobsite construction work
within the meaning of the construction industry proviso
to Section 8(e). Therefore, when Respondent attempted
to apply the subcontracting provisions of the Agreement
to Cahill, Respondent was not attempting to apply job-
site provisions to offsite work, but rather was applying
jobsite provisions to jobsite work Consequently, I do
not find a violation of Section 8(b)(4)(ii)(A) of the Act.
The complaint further alleges a violation of Section
8(b)(4)(ii)(A) and (B) of the Act. Specifically, it alleges
that Respondent violated Section 8(b)(4)(ii)(A) of the
Act by threatening, coercing, and restraining Cahill with
an object of forcing or requiring him to enter into an
agreement prohibited by Section 8(e), and that Respond-
ent violated Section 8(b)(4)(ii)(B) of the Act by threaten-
ing, coercing, or restraining Cruse with the object of
forcing Cruse to cease doing business with Cahill and
with the further object of causing Cahill to recognize
and bargain with it.
The common denominator between 8(b)(4)(ii)(A) and
(B) activity is a showing that 8(b)(4)(ii) coercion exists,
followed by proof of proscribed objects applicable to
each subsection It is the General Counsel's contention
that in the conversations Respondent's business agent
had with -Cruse's representative and with Cahill, "de-
mands" and "threats" were made that were coercive
within the meaning of Section 8(b)(4)(ii). Particularly,
the General Counsel focuses on the alleged threats to
fine Cruse $100 per day, which were followed by the
filing of a grievance pursuant to article 1, section 103.6,
of the Agreement requesting $100-per-day stipulated
damages. The General Counsel contends that this is eco-
nomic restraint or coercion sufficient to satisfy the coer-
cive requirement for Section 8(b)(4)(ii)(A) and (B)
Respondent contends that its business agent never
made any unlawful "demands" or "threats" to either
Cahill or Cruse. Specifically, it denies demanding that
Cahill become signatory to the Agreement, and it also
denies threatening to "fine" Cruse. Rather, it takes the
position that its business agent informed Cruse of a possi-
ble subcontracting violation, drew his attention to the ap-
plicable contract provisions, threatened to file a griev-
ance to enforce the provisions and ultimately (approxi-
mately 7 days later) did file such a grievance. Conse-
quently, the Union's position is that Business Agent
Marion Derenburger's threat to file a grievance against
Cruse and the Union's subsequent filing of a grievance to
enforce a colorable contract claim does not constitute
economic coercion within the meaning of the Act.
I find merit in Respondent's position. It is clear that
Respondent's business agent, after observing that Cahill
was doing jobsite construction work at the 27th Avenue
project, approached both Cahill and Cruse's vice presi-
dent Clay Wood about a possible contract violation. Ac-
cording to Derenburger's recollection of his conversa-
tions with Cahill, which I credit, they discussed the fact
that Respondent's position was that Cahill was doing sig-
natory contractor work without being signatory to the
Agreement. There is nothing improper in this conversa-
tion. There was no demand made on Cahill to sign the
current collective-bargaining agreement. Furthermore,
though Cahill testified that his impression was that he
would "be run off the job," on cross-examination he ad-
mitted that the business agent had never said that to him.
Cahill in fact completed the project. I find that no coer-
cive threats were made to Cahill by Respondent.
As for the conversations Derenburger had with Wood,
a composite of their testimony reveals that they dis-
cussed a possible subcontracting clause violation. They
differ on what was said about damages. Derenburger tes-
tified that he showed Wood the Agreement, read the
damage provision to him, and told him the Union would
file a grievance to enforce the damage provision. Seven
days later the grievance was filed and soon served on
Cruse. Wood testified that he talked with Derenburger
five times through the months of July and August 1977,
and that although Derenburger threatened a "fine" of
$100 per day, Wood claimed he did not know how Re-
spondent would collect the fine. This seems improbable
given Wood's position with Cruse and his early service
with the grievance I credit Derenburger's recollection
of the events and find that he did not threaten to "fine"
Cruse, but did threaten to file a grievance pursuant to a
claim for breach of the subcontracting provision.
Consequently, the remaining question is whether the
threat to file a grievance to enforce the liquidated dam-
ages provision of the contract is economic coercion
within the meaning of Section 8(b)(4)(u). Threats to file a
grievance and the filing of a grievance to enforce a co-
lorable contract claim do not violate the Act. California
Dump Truck Owners Assn.. supra. I find that there was
no economic coercion within the meaning of Section
8(b)(4)(ii) of the Act. Since I have not found any threats
or coercion within the meaning of Section 8(b)(4)(ii) of
the Act, I dismiss that part of the complaint alleging vio-
lations of Section 8(b)(4)(ii)(A) and (B) of the Act.
CONCLUSIONS OF LAW
1 Construction, Building Materials & Miscellaneous
Drivers, Local No 83, affiliated with International
TEAMSTERS LOCAL 83 (CAHILL TRUCKING)
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America is a labor organization within
the meaning of Section 2(5) of the Act.
2. By entering into, -maintaining, and giving effect to
self-help provisions applicable to article 1, section 103, of
its 1976-1979 collective-bargaining agreement with
AGC, Construction, Building Materials & Miscellaneous
Drivers, Local No. 83, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, has violated Section 8(e) of the
Act, but has not violated the Act in any respect other
than as specifically found.
3. The above unfair labor practice is an unfair labor
practice affecting commerce and the free flow of com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(e), I shall recom-
mend that it cease and desist therefrom and 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, I issue the following recommend-
ed"
ORDER
The Respondent, Construction, Building Materials &
Miscellaneous Drivers, Local No 83, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Phoenix, Arizo-
na, its officers, agents, and representatives, shall
1. Cease and desist from entering into, maintaining,
giving effect to, or enforcing the self-help portion of arti-
cle 11, section 1102, insofar as it is applied to the subcon-
tracting clause, article 1, section 103, found in the Re-
spondent's Master Labor Agreement with Associated
General Contractors, Arizona Chapter and Associated
General Contractors, Arizona Building Chapter, to the
extent found unlawful herein.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its business offices and meeting halls copies
of the attached notice marked "Appendix A."9 Copies of
the notice, on forms provided by the Regional Director
for Region 28, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent to
8 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
1291
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(b) Furnish to the Regional Director copies of the
aforementioned notice for posting by Cahill Trucking
Company, if willing, in places where notices to employ-
ees are customarily posted.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the consolidated com-
plaint be dismissed in all other respects.
APPENDIX
The Master Labor Agreement contains the following
excerpted provisions:
103-Subcontractor Coverage
103.1-Each Contractor agrees that he and his
subcontractors will not contract or subcontract
work covered by the terms of construction labor
agreements between signatory associations and the
Operating Engineers Local No 428, Teamsters
Local No. 83, Laborers District Council for the
State of Arizona, Cement Masons Locals No. 394
and No. 395, as defined in Article 2 of each of the
above named agreements, to be done at the site of
construction, except to a person, firm, corporation,
broker or developer signatory to the appropriate
agreement as outlined above, with the following ex-
ceptions
103.1.1-When there is no such subcontractor
party to such an agreement available to do the
work.
103.1.2-When the requirements of this para-
graph 103.1 would produce a monopoly and pre-
clude reasonable competition for the work.
103.1.3-Where the workload of a signatory sub-
contractor or subcontractors is such as to preclude
proper execution and completion of a job or
project.
103.1.4-Where compliance with the require-
ments of this paragraph 103.1 would prevent the
successful negotiations of a contract for construc-
tion with an owner.
103 1.5-Where contractors are required to
comply with equal employment opportunity re-
quirements and subcontractors meeting such re-
quirements are not party to this agreement.
103.2-The validity of a Contractor's application
for an exception under 103.1.1, 103.1.2, 103.1.3 and
103.1.4 above shall be determined by a committee
comprised of three representatives of the Union and
three representatives of the contractors. Such com-
mittee shall meet within five days of a request for
an exception, and shall render a decision within
three days after such hearing. Voting shall be equal,
if less than three representatives from either side is
present, the other side shall reduce their voting
strength to an equal number.
103.3-A Contractor or subcontractor is defined
as any person, firm, corporation, broker or develop-
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er who performs, subcontracts, or is responsible for
all or any part or portion of the construction work
as described in Article 2 of this Agreement, at the
site of construction.
103.4-If the Contractors, parties hereto, shall
subcontract construction work under the conditions
set forth in 103.1, 103.2 and 103.3 above, the terms
of said Agreement shall extend to and bind such
construction site subcontract work , and written pro-
visions SHALL be made in said subconrtact for the
observance by said subcontractor of ALL the terms
and conditions of this Agreement.
103.5-If a Contractor subcontracts work herein
negotiated for to a subcontractor not signatory to
this Agreement, he shall be responsible in the event
said subcontractor fails to comply with any of the
terms of this Agreement.
103.6-If a subcontractor not signatory hereto
fails to comply with any provision of this Agree-
ment, it is agreed that any and all such violations
shall be chargeable to the Contractor dealing with
such a subcontractor; such violations shall be deter-
mined in accordance with the provisions of Article
11, 1104 (Settlement of Disputes and Grievances) of
this Agreement. The Contractor shall pay, as stipu-
lated damages, the sum of One Hundred Dollars
($100.00) for each day the violation continued or
occurred, in addition to any monies due any em-
ployee or for any employee benefits. Said stipulated
damages shall be paid in equal amounts to each of
the Trust Funds established pursuant to Article 20
(Pensions), and Article 19 (Health and Welfare), of
this Agreement. The parties to this Agreement
agree to make any amendments to the Trust Agree-
ments established for the administration of the
above-mentioned trust funds necessary to accep
payment of the amounts of stipulated damages re-
ferred to in this paragraph.
103.9-If a Contractor subcontracts work herein
negotiated for to a subcontractor not a party to this
Agreement, under the exceptions listed in Artilce 1,
103, he shall be responsible in the event said sub-
contractor fails to comply with the terms of this
Agreement specified above. Also, the Contractor
shall require any such subcontractor to furnish the
Contractor each week with a certified copy of the
weekly payroll record showing names and Social
Security numbers of persons performing any work
under the subcontract coming within the jurisdic-
tion of Teamsters, Cement Masons and Laborers, as
negotiated for herein, and further showing the
hours worked by such persons, the rates paid, the
total amounts earned and paid, including identifica-
tion of all items and amounts paid as reimburse-
ments for expenses or as allowances . Such copies
shall be available for inspection and copying by the
Unions, Party hereto, whenever requested by any
representatives of any of said Unions and such
copies shall be kept by the Contractor for at least
one year.
1102-No Strike-No Lockout. There will be no
lockout by the Contractor nor any cessation of
work by employees for any reason whatsoever pro-
vided, however, that cessation of work by employ-
ees shall not be a violation of this Agreement if it is
solely to protest any of the following exceptions to
this Section:
1102.2-If a Contractor or subcontractor fails to
abide by the Agreement as determined by a final
and binding award entered pursuant to the griev-
ance and arbitration procedures provided for in this
Agreement and up to the time of the final and bind-
ing award the complaining party or parties have af-
forded themselves of all remedies of the grievance
procedure.
1102.4-Where a Contractor or subcontractor is
delinquent in the payment of fringe benefits in ac-
cordance with the provisions of the relevant trust
documents applicable thereto; provided that no ex-
ception from the no-strike provisions of this Agree-
ment shall be available to any Union who seeks to
enforce payments of delinquent contributions for
fringe benefits by economic action unless the appro-
priate Union has first given the delinquent Contrac-
tor or subcontractor and any General Contractor
involved and the Executive Secretaries of Contrac-
tor Associations signatory five (5) days (exclusive of
Saturdays, Sundays, and holidays) notice of the de-
linquency. Notice of delinquency may be satisfied
by telephone; or mail , personally or government de-
livered. Telephone notice shall be followed by mail
confirmation.
1102.8-As to those violations described herein
above, the Union and employees involved may
strike or picket the offending Contractor, where not
statutorily prohibited, or it may, in its discretion, or
as an alternative, file grievances which shall in all
respects be processed and decided in accordance
with the established grievance procedure.