International Union of Operating Engineers, Loc. 701

National Labor Relations Board - Board Decisions

Jan 17, 1975

216 N.L.R.B. 233 (N.L.R.B. 1975)

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOC. 701
International Union of Operating Engineers, Local
No. 701 , AFL-CIO and Oregon-Columbia Chap-
ter, The Associated General Contractors of Ameri-
ca, Inc . Case 36-CE-9
January 17, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS KENNEDY AND PENELLO
Upon a charge filed on July 18, 1974, by Oregon-
Columbia Chapter, the Associated General Contrac-
tors of America, Inc., herein called AGC, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 19,
issued a complaint on August 30, 1974, alleging that
International Union of Operating Engineers, Local
No. 701, AFL-CIO, herein called Respondent, has
entered into, given effect to, and has attempted to
enforce an agreement in violation of Section 8(e) of
the Act. Copies of the charge, complaint, and notice
of hearing before an Administrative Law Judge were
duly served on the parties to this proceeding.
On September 5, 1974, Respondent filed its answer
admitting various allegations of the complaint but
denying that the agreement violated Section 8(e) of
the Act.
On September 25, 1974, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. On October 15, 1974, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the General
Counsel's Motion for Summary Judgment should not
be granted. Respondent thereafter filed a response to
Notice To Show Cause.
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.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Respondent, which entered into a collective-bar-
gaining agreement with AGC on or about July 1,
1973, is giving effect to the following provisions
therein and since February 14, 1974, has attempted
to enforce them:
ARTICLE XIX
WARRANTY
233
Section 1. Employees covered by this Agreement
shall be used on all maintenance, servicing and
repair work except that machinery covered by a
manufacturer's written guarantee is not subject to
this Agreement under the following conditions:
(a) No warranty shall run for a period of more
than 1000 meter or working hours.
(b) The term "equipment" or "machinery"
means a complete unit such as a shovel, crane,
tractor, scraper, compressor, etc., and does not
include component assemblies such as motors,
transmissions, etc., which are installed in equip-
ment. The intent of this paragraph is to stop the
practice of chain warranties.
(c) Equipment which is rented, leased, or is on
a rental purchase contract, in which ownership
resides in the dealer, shall be considered to belong
to the contractor for the purpose of this Article.
(d) On used equipment, a dealer's warranty
shall not exceed 300 hours.
(e) Warranty mechanics shall supervise such
work at or near the jobsite and use the tools of the
trade, assisted on all work by employees covered
by the terms and conditions of this Agreement.
Warranty Mechanics shall not work at a ratio
greater than two Warranty Mechanics for each
Contractor Mechanic.
Section 2. It is expressly understood and agreed to
by all parties hereto, that when the contractor's
equipment is repaired (work other than warranty
work) at or near a jobsite by a manufacturer,
equipment dealer or individual, the contractor
shall be required to see that the terms and
conditions of this Agreement are complied with.
The Employers shall not use any method or
means to circumvent the intent of this Article.
Section 3. If the Employer violates the above it
will not be a violation of this Agreement for the
Union to refuse to operate such equipment until
an arrangement has been reached with the Union.
In its answer to the complaint and in its response to
the Notice To Show Cause, Respondent raises three
contentions. Respondent argues that article XIX is
within the proviso to Section 8(e) of the Act as there
is nothing in the contract language which dictates its
application to offsite work. Secondly, Respondent
asserts that article XIX is addressed to the labor
relations of the contracting employer and his
employees and thus is primary and beyond the
216 NLRB No. 45
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proscription of Section 8(e) of the Act. Finally,
Respondent contends that the Board should defer to
arbitration under the Collyer doctrine.' In this regard
the Respondent states that it filed a grievance
charging an AGC contractor with violation of article
XIX. The matter proceeded to arbitration and the
arbitrator declined to pass on the legality of article
XIX because of the pending 8(e) charge.
With regard to the Respondent's first contention,
the Board in International Union of Operating
Engineers, Local Union No. 12 (Acco Construction
Equipment, Inc., Hawthorne Machinery Co.), 204
NLRB 742 (1973), held that a similar warranty clause
violated Section 8(e) of the Act because the work
involved was not "work to be done at the site of the
construction." Since the clause herein purports to
cover repair work "near a job site," this clause like
the one in Hawthorne, supra, involves in part offsite
work.
As to Respondent's second contention, since article
XIX contains a union-signatory clause which prohib-
its employers from contracting out work to employ-
ers who do not have a contract with Respondent, it is
clearly concerned primarily with the regulation of the
labor policies of other employers and not the
preservation of unit work. Accordingly, article XIX
has an unlawful secondary thrust proscribed by
Section 8(e) of the Act.2
Respondent's affirmative defense that the Board
must defer to grievance and arbitration procedures
must also fail. Deferral is not appropriate in a dispute
where the contract provisions governing the dispute
are as here unlawful on their face or by their express
terms call for a result inconsistent with Board policy
under the Act.3
We conclude from the pleadings that Respondent
raises no issues of fact or law requiring a hearing in
this proceeding. For the reasons set forth above, we
decline to defer to the grievance and arbitration
provisions of the collective-bargaining agreement
and find that article XIX and Respondent's efforts to
enforce its provisions are violative of Section 8(e) of
the Act. Accordingly, we hereby grant the Motion
for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. JURISDICTION
AGC is an association of employers engaged in all
types of construction work throughout the entire
State of Oregon and five counties in the southwestern
I Collyer Insulated Wire, A Guy and Western Systems Co, 192 NLRB 837
(1971).
2 Hawthorne Machinery, supra.
portions of the State of Washington. During the past
year, the employer-members of AGC, in the course
and conduct of their business , annually purchased
goods, materials, and supplies valued in excess of
$50,000, which were shipped to said employer-
members directly from States of the United States
other than the States of Oregon and Washington.
We find on the basis of the foregoing that AGC is
an employer within the meaning of Section 2(2) of
the Act, and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Respondent , International Union of Operating
Engineers , Local Union No. 701, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
For the reasons given by the General Counsel, we
find that article XIX and Respondent's efforts to
enforce its provisions are violative of Section 8(e) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent occurring in connec-
tion with the operations of AGC described in section
I, above, have a close , intimate , and substantial
relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1. International Union of Operating Engineers,
Local No. 701, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
2. The employer-members of the Associated
General Contractors of America, Inc., including the
Charging Party, are employers within the meaning of
Section 2(2) of the Act, and are engaged in a business
affecting commerce within the meaning of Section
2(6) and (7) of the Act.
3. By entering into, maintaining, giving effect to,
or attempting to enforce the provisions of article XIX
of the collective-bargaining agreement with Associat-
ed General Contractors of America, Inc., Respond-
ent is engaging in and has engaged in unfair labor
3 However , we do not rely on Sheet Metal Workers ' International
Association, Local Union No. 17, AFL-CIO (George Koch Sons, Inc), 199
NLRB 166 (1972), which is cited by the General Counsel.
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOC. 701 235
practices within the meaning of Section 8(e) of the
Act.
4. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices , we shall order
that it cease and desist therefrom.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
International Union of Operating Engineers, Local
No. 701, AFL-CIO, its officers , agents , and repre-
sentatives, shall:
1. Cease and desist from entering into, maintain-
ing, enforcing , or giving effect to article XIX of its
current June 1, 1973-May 31, 1976, collective-bar-
gaining agreement with Oregon-Columbia Chapter,
the Associated General Contractors of America, Inc.,
whereby it and its employer-members agree to cease
and refrain from handling , using, selling, transport-
ing, or otherwise dealing in the products of other
employers and agree to cease doing business with
any other person within the meaning of Section 8(e)
of the Act.
2. Take the following affirmative action:
(a) Post at Respondent Union's business offices
and meeting halls, copies of the attached notice
marked "Appendix."4 Copies of said notice, on
forms provided by the Regional Director for Region
19, after being duly signed by Respondent's repre-
sentative , shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous
places , including all places where notices to members
and employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(b) Sign and mail to the Regional Director for
Region 19 , sufficient copies of the notice, on forms
provided by him, for posting at the premises of the
Charging Party, if willing.
(c) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
ACTING CHAIRMAN FANNING, concurring in part and
dissenting in part:
I concur in my colleagues' refusal to defer to
arbitration in this case.5 However, for reasons set
forth in my dissent in Hawthorne Machinery, supra, I
would find that the provisions of article XIX of the
contract between the Respondent Union and the
Association are perfectly legal as they are protected
by the proviso to Section 8(e). I would therefore deny
the Motion for Summary Judgment and dismiss the
complaint.
4 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."
S See my dissenting opinions in Collyer, supra, and subsequent cases.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT enter into, maintain, enforce, or
give effect to article XIX of the June 1, 1973-May
31, 1976, collective-bargaining agreement with the
Oregon-Columbia Chapter, the Associated Gen-
eral Contractors of America, Inc., whereby it and
its employer-members agree to cease and refrain
from handling, using, selling, transporting, or
otherwise dealing in the products of other
employers and agree to cease doing business with
any other person within the meaning of Section
8(e) of the Act.
INTERNATIONAL UNION
OF OPERATING
ENGINEERS , LOCAL No.
701, AFL-CIO