Fresno, Madera, Kings and Tulare Cties. Trades Council

National Labor Relations Board - Board Decisions

May 29, 1975

218 N.L.R.B. 39 (N.L.R.B. 1975)

FRESNO, MADERA, KINGS AND TULARE CTIES. TRADES COUNCIL
Fresno, Madera, Kings and Tulare Counties Building
and Construction Trades Council and Gage Broth-
ers Construction. Case 20-CC-1540
May 29, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
Upon a charge duly filed on August 28, 1974, by
Gage Brothers Construction, herein called the
Employer, against Fresno, Madera, Kings and
Tulare Counties Building and Construction Trades
Council, herein called Respondent, the General
Counsel of the National Labor Relations Board, by
its Acting Regional Director for Region 20, on
October 1, 1974, issued and served on the parties an
order consolidating Cases 20-CP-5401 and 20-CC-
1540 and a consolidated complaint alleging, insofar
as is relevant herein, that the Respondent had
engaged in unfair labor practices within the meaning
of Sections 8(b)(4)(i) and (ii)(A), and 2(6) and (7) of
the National Labor Relations Act, as amended.
Copies of the charges and of the consolidated
complaint and notice of hearing were duly served on
the parties. On October 18, 1974, the Respondent
filed its answer to the consolidated complaint,
denying the commission of unfair labor practices and
requesting that the consolidated complaint be dis-
missed.
Between January 20 and January 27, 1975, the
parties executed a stipulation of facts, and on
January 29, 1975, they jointly filed with the National
Labor Relations Board a motion to transfer the
instant proceeding to the Board for findings of fact,
conclusions of law, and order. The parties waived a
hearing before, and the making of findings of fact,
conclusions of law, and issuance of a decision by, an
Administrative Law Judge, and stipulated that no
oral testimony was necessary or desired by any of the
parties. The parties also agreed that the charges,
complaint, answer, and stipulation constitute the
entire record in this proceeding.
By order dated February 5, 1975, the Board
granted the motion and approved the stipulation of
facts as part of the record herein. Thereafter, briefs
were filed by the General Counsel, Respondent, and
the Employer.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
i On November 20, 1974 , the Regional Director for Region 20 approved
a settlement agreement in Case 20-CP-540 and issued an order severing
218 NLRB No. 12
39
The Board has considered the stipulation, includ-
ing exhibits, and the entire record in this proceeding,
and hereby makes the following:
FINDINGS OF FACT
I. BUSINESS OF THE EMPLOYER
The Employer is a partnership engaged as a general
contractor in the business of building construction,
with its principal place of business in Fresno,
California. During the past calendar year, in the
course and conduct of its business operations, the
Employer purchased and received goods valued in
excess of $50,000, which goods and merchandise
either were shipped directly to the Employer from
outside the State of California or were shipped from
outside the State of California directly to the
Employer's suppliers within the State of California,
which suppliers in turn shipped said goods and
merchandise directly to the Employer. We find, on
the basis of the foregoing, that the Employer is, and
has been at all, times material herein, an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Council is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
On July 8, July 31, and August 12, 1974, Respon-
dent Council, by its authorized agent Orville DeSoto,
requested that the Employer enter into a collective-
bargaining agreement containing, inter alia, the
following pertinent articles:
Aritcle IV:
The Employer, Developer and/or Owner-
Builder agrees that he shall contract or subcon-
tract all jobsite work set forth in Article I above to
a person, firm, partnership or corporation that is a
party to an executed current Agreement with the
appropriate Union having work and territorial
jurisdiction, affiliated with the Council in which
the area the work is performed.
Article VIII:
In the event that the Employer, Developer
and/or Owner-Builder violates any provision of
this agreement with the exception of Article IV
above, or fails to abide by the-determination as
provided in Article VII or in the event that any
Case 20-CP-540 from Case 20-CC-1540
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contractor or subcontractor of the Employer,
Developer and/or Owner-Builder fails to abide by
the provisions of the appropriate agreement, with
the exception of any subcontracting clause
contained in the appropriate agreement of the
subcontractor, it will not be a violation of this
Agreement for the Councils to terminate this
Agreement and it shall not be a violation of this
Agreement for any employee to refuse to perform
any work or enter upon the premises of such
Employer, Developer, and/or Owner-Builder, to
the extent permitted by law, and Employees who
refuse to perform any work or enter upon the
premises under the circumstances shall not be
subject to discharge or any other disciplinary
action, to the extent permitted by law.
The Employer, Developer and/or Owner-
Builder further agrees that on all of his jobs he, all
of his contractors and subcontractors will abide
by all local, State and Federal health, safety and
sanitary regulations, and in the event that there
are any conditions which may be or tend to be
detrimental to the employee's health, safety,
morals , or reputation, it is agreed that the
employees shall not be required to work under
such conditions. It is further agreed that no
employee shall be required to cross any lawful
primary picket line or enter any premises at which
there is a lawful primary picket line authorized or
approved by the Councils, individually or collec-
tively, or authorized by any Central Labor Body
in the area covered by this Agreement. The
Employer, Developer and/or Owner-Builder
agrees that he will not assign or require any
employee covered by this Agreement to perform
any work or enter premises under any of the
circumstances above described at which there is a
lawful primary picket line.
During the time of any violation of any of the
provisions of this Agreement by the Employer,
Developer and/or Owner-Builder contractor or
subcontractor, whether created by their executed,
current agreements or otherwise, the affiliated
Unions shall be released and relieved of any
obligation to furnish workmen to any of them.
From on or about August 12, 1974, and continuing
to on or about September 15, 1974, Respondent
Council picketed the Employer at its construction
projects in Fresno at "Happy Cup," "Datsun," and
"Health Spa" with the object of forcing or requiring
2 Orange Belt District Council of Painters No. 48, AFL-CIO, et al.
[Calhoun Drywall Co.] v. N.L.R.B., 328 F.2d 534, 537 (C.A.D.C., 1464);
Muskegon Bricklayers ' Union #5, Bricklayers, Masons and Plasterers
International Union of America (AFL-CIO) (Greater Muskegon General
Contractors Association), 152 NLRB 360, 365 (1965), enfd. as modified 378
F.2d 859 (C.A. 6, 1967).
the Employer to execute the collective-bargaining
agreement which contained the above clauses. An
effect of the picketing was to induce individuals
employed by Fererro Electric Company and Sequoia
Rock Company at the "Datsun" project; individuals
employed by Sequoia Rock Company at the "Health
Spa" project; and individuals employed by Lambeth
& Tomlison at the "Happy Cup" project not to pick
up, deliver, or transport any goods or not to perform
any services at said projects.
Although Section 8(e) generally makes "hot cargo"
contracts unlawful, the first proviso to Section 8(e)
exempts from its coverage "an agreement between a
labor organization and an employer in the construc-
tion industry relating to the contracting or subcon-
tracting of work to be done at the site of the
construction . . . ." Although Congress thus made
lawful certain onsite "hot cargo" construction con-
tracts, it also made clear an intention that such
contracts could be enforced only by a lawsuit ` and
not by strikes or other self-help economic action.2 It
is well established that an otherwise valid limitation
on contracting or subcontracting at a construction
site, which is intertwined with a provision permitting
self-help by the labor organization, such as striking
or otherwise refusing to perform services in the event
of a breach of the "hot cargo" clause, exceeds the
prescribed bounds of the first proviso to Section 8(e)
and is therefore unlawful.3 Furthermore, picketing
with an object of forcing an employer to enter into
an agreement which contains a clause prohibited
under Section 8(e) constitutes a violation of Section
8(b)(4)(i) and (ii)(A).4 The General Counsel contends
that Respondent Council, by picketing to obtain an
agreement which contained a subcontracting clause
enforceable by self-help economic action, as set forth
in the third paragraph of article VIII, engaged in
conduct which violated Section 8(b)(4)(i) and (ii)(A).
In contrast, Respondent Council contends that
article VIII of the proposed agreement does not
permit it to engage in self-help by refusing to refer
workmen to any contractor in the event of a breach
of the subcontracting clause ; that Respondent does
not claim it is entitled to such self-help; and that
there is no evidence Respondent, at any time
material to this case, ever refused to dispatch
workmen to the job of any contractor allegedly in
violation of the subcontracting clause.
3 Muskegon Bricklayers Union #5, supra.
4 Los Angeles Building & Construction Trades Council (Quality Builders,
Inc.), 153 NLRB 383 (1965). Muskegon Bricklayers Union #5, supra; Local
445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Edward L. Nezelek, Inc), 194 NLRB 579, 585 (1971).
FRESNO, MADERA, KINGS AND TULARE CTIES. TRADES COUNCIL
The question involved here is one of contract
interpretation which must be resolved before we can
determine the validity of a clause under Section 8(e).5
Therefore, we must answer the threshold question of
whether or not the language used in each clause,
either when read by itself or when interpreted and
construed in the context of other clauses in the
agreement, is so clear as to preclude ambiguity with
respect to its meaning.6
1. Article IV of the proposed agreement requires
that the Employer shall subcontract all jobsite work
to a firm that is a party to an agreement with an
appropriate union affiliated with the Respondent
Council. Such a subcontracting or "hot cargo"
clause, standing alone, would, as discussed above, be
lawful under the construction proviso to Section 8(e).
The first paragraph of article VIII in effect states that
in the event the Employer or its subcontractor
violates any provision of the agreement with the
exception of the subcontracting clause of article IV it
shall not be a violation of the agreement for the
Respondent Council to terminate the agreement; it
shall not be a violation of the agreement for any
employee to refuse to perform any work or enter
upon the, premises of the Employer; and the
employees who refuse to perform any,work or enter
upon the premises shall not be subject to discharge or
any other disciplinary action. Thus, this part of
article VIII clearly would prevent the Respondent
Council or its affiliated unions from engaging in self-
help of the nature described above, in the event that
the Employer or its subcontractor violated the terms
of the subcontracting clause.
2. The second paragraph of article VIII deals
with unrelated matters.
3. The third paragraph of article VIII states in
pertinent part, "[D ]uring the time of any violation of
any [emphasis supplied] of the provisions of this
Agreement by the Employer . . . or subcontractor
... the affiliated Unions [of Respondent Council]
shall be released and relieved of any obligation to
furnish workmen to any of them." We find that on its
face the language of this paragraph clearly permits
the Respondent to engage in statutorily proscribed
conduct. Unlike the first paragraph of article VIII, it
states no exception for violations of the article IV
subcontracting clause and, in-the third paragraph,
there is no reference which might lead one to
conclude that, as the Respondent contends, the
exception delineated in the first paragraph also
applies to the third; nor is there any other basis
which supports the Respondent's contention. Where-
5 Cf General Teamsters, Chauffeurs, Warehousemen and Helpers, Local
982, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (J. K Barker Trucking Co.), 181 NLRB 515, 517 (1970).
6 Id
41
as the first paragraph deals with the right of the
Respondent Council to terminate the agreement and
the right of employees to refuse to perform any work
or enter upon the premises, the third paragraph
relates to an additional and unrelated self-enforce-
ment feature available to the Respondent Council
and its affiliated unions, i.e., releasing them from any
obligation to refer workmen to the Employer or its
subcontractors. Under the proposed provisions of the
third paragraph, the Respondent Council or its
affiliated unions would not be compelled to look to
the courts for enforcement of the subcontracting
clause, but instead could resort to a prohibited form
of self-help. As the limitation upon subcontracting at
the construction site is intertwined with a provision
permitting self-help to seek enforcement of this "not
cargo" clause, such an agreement exceeds the
prescribed bounds of the construction industry
proviso to Section 8(e).7
Accordingly, we find that, by picketing with an
object of forcing the Employer to enter into an
agreement which contained a clause unlawful under
Section 8(e), Respondent violated Section 8(b)(4)(i)
and (ii)(A) of the Acts
The Remedy
Having found that Respondent Council has en-
gaged in certain activities which violate the Act, we
shall order it to cease and desist therefrom and to
take certain affirmative action to effectuate the
purposes of the Act.
Upon the basis of the foregoing findings of fact,
and upon the entire record in this case, we make the
following:
CONCLUSIONS OF LAW
1. Gage Brothers Construction is an employer
within the meaning of Section 2(2) of the Act and is
engaged in commerce or in an industry affecting
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Fresno, Madera, Kings and Tulare Counties
Building and Construction Trades Council is a labor
organization within the meaning of Section 2(5) of
the Act.
3. By picketing at the "Datsun," "Happy Cup,"
and "Health Spa" construction sites of Gage Broth-
ers Construction with an object of forcing Gage
Brothers Construction to enter into an agreement
which contained clauses unlawful under Section 8(e),
Respondent Council has engaged in unfair labor
7 Muskegon Bricklayers Union #5, supra Local 445, International
Brotherhood of Teamsters, supra
8 Id
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices within the meaning of Section 8 (b)(4)(i) and
(ii)(A) of the Act.
4. The aforesaid unfair labor ' practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Fresno, Medera, Kings and Tulare Counties Building
and Construction Trades Council, Fresno, Califor-
nia, its officers, representatives, and agents, shall:
1. Cease and desist from:
(a) Picketing or causing to be picketed, or threaten-
ing to picket or to cause to be picketed, Gage
Brothers Construction, with an object of forcing or
requiring said Employer to enter into an agreement
which is prohibited by Section 8(e) of the Act.
(b) Inducing or encouraging the employees of the
Employer, or any other employer engaged in com-
merce or in an industry affecting commerce, to refuse
to perform services in the course of their employment
and threatening, coercing, or restraining the Employ-
er, or any other person engaged in commerce as
defined in the Act or in an industry affecting such
commerce, where an object thereof is forcing or
requiring the Employer to enter into an agreement
which is prohibited by Section 8(e) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix." 9
Copies of said notice, on forms provided by the
Regional Director for Region 20, after being duly
signed by Respondent Council's authorized repre-
sentative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken
by Respondent Council to insure that said notices
are not altered, defaced, or covered by any other
material.
(b) Sign and mail sufficient copies of said notice to
said Regional Director for posting by Gage Brothers
Construction, if willing, at all places where notices to
its employees are customarily posted.
(c) Notify the Regional Director for Region' 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent Council has taken to
comply herewith.
9 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of , the United States Government
WE WILL NOT picket or cause to be picketed, or
threaten to picket or to cause to be picketed,
Gage Brothers Construction, with an object of
forcing or requiring said Employer to enter into
an agreement which is prohibited by Section 8(e)
of the National Labor Relations Act.
WE WILL NOT induce or encourage the employ-
ees of Gage Brothers Construction, or any other
employer engaged in commerce or in an industry
affecting commerce, to refuse to perform services
in the course of their employment or threaten,
coerce, or restrain Gage Brothers Construction, or
any other person engaged in commerce as defined
by the Act or in an industry affecting such
commerce, where an object thereof is forcing or
requiring Gage Brothers Construction to enter
into an agreement which is prohibited by Section
8(e).
FRESNO, MADERA, KINGS
AND TULARE COUNTIES
BUILDING AND
CONSTRUCTION TRADES
COUNCIL