Iron Workers Local 272

National Labor Relations Board - Board Decisions

Mar 26, 1979

241 N.L.R.B. 438 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 272 of the International Association of Bridge,
Structural & Ornamental Iron Workers, AFL-CIO
and Steel and Ornamental Erectors Association of
South Florida, Inc., & Member Contractors and
SAC Construction Company. Case 12-CE-24
March 26, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On October 23, 1978, Administrative Law Judge
Almira Abbot Stevenson issued the attached Decision
in this proceeding. Thereafter, the Respondent, Local
272, filed exceptions and a supporting brief, and the
Charging Party filed cross-exceptions and a support-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
'The Charging Party has excepted to the Administrative Law Judge's
inadvertent error in finding that the current collective-bargaining agreement
involved in this case was effective October 31, 1977, to October 31, 1978.
Since the record reveals that said agreement was effective November i, 1977,
to October 31, 1978, we find merit in the Charging Party's exception and
hereby correct the Administrative Law Judge's Decision accordingly.
2 In adopting the Administrative Law Judge's conclusion that the Respon-
dents violated Sec. 8(e) of the Act by entering into and maintaining a collec-
tive-bargaining agreement containing a subcontracting clause which was not
limited to work done at the site of construction and which could be enforced
by strike or other self-help economic action, we do not rely on the Adminis-
trative Law Judge's interpretation and application of the Supreme Court's
decision in Connell Construction Company, Inc. v. Plumbers and Steamfirrters
Local Union No. 00, United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada, AFL-
CIO, 421 U.S. 616 (1975). See Carpenters Local No. 944, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, and Carpenters Local No.
235, United Brotherhood of Carpenters and Joiners of America, AFL-CIO
(Woelke & Romero Framing, Inc.), 239 NLRB 241 (1978). and International
Union of Operating Engineers, Local No. 701, AFL-CIO; Oregon-Columbia
Chapter, The Associated General Contractors of America, Inc. (Pacific North-
west Chapter of the Associated Builders & Contractors, Inc.), 239 NLRB 274
(1978), both of which issued subsequent to the Administrative Law Judge's
Decision in the instant case.
Chairman Fanning does not reach the issue concerning the self-help provi-
sions of this contract, inasmuch as art. 19 "Sub-Contractors" is itself found
to be a violation of Sec. 8(e) of the Act and an appropriate cease-and-desist
order applicable to its enforcement is provided.
ders that the Respondent, Local 272 of the
International Association of Bridge, Structural and
Ornamental Iron Workers, AFL-CIO, Miami, Flor-
ida, its officers, agents, and representatives, and the
Respondent, Steel and Ornamental Erectors Associ-
ation of South Florida, Inc., Miami, Florida, its mem-
ber contractors, their officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order, except that the attached notices
are substituted for those of the Administrative Law
Judge.
APPENDIX A
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 19, "Sub-Contractors," of
the current 1977-78 collective-bargaining agree-
ment with Steel and Ornamental Erectors Asso-
ciation of South Florida, Inc. and/or its Member
Contractors, or with any other employers en-
gaged in commerce or in an industry affecting
commerce wherein such employers agree to
cease or refrain from doing business with any
other person in violation of Section 8(e) of the
National Labor Relations Act, as amended.
LOCAL 272 OF THE INTERNATIONAL ASSOCI-
ATION OF BRIDGE, STRUCTURAL & ORNA-
MENTAL IRON WORKERS, AFL-CIO
APPENDIX B
NOTICE TO EMPLOYEES
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 19, "Sub-Contractors," of
our current 1977-78 collective-bargaining agree-
ment with Local 272 of the International Associ-
ation of Bridge, Structural & Ornamental Iron
Workers, AFL-CIO, or any other contract in
which we agree to cease or refrain from doing
business with any other person in violation of
Section 8(e) of the National Labor Relations
Act, as amended.
STEEL AND ORNAMENTAL ERECTORS ASSOCI-
ATION OF SOUTH FLORIDA, INC. AND/OR ITS
MEMBER CONTRACTORS
241 NLRB No. 64
438
IRONWORKERS LOCAL 272
DECISION
STATEMENT OF TE CASE
ALMIRA ABBOT STEVENSON. Administrative Law Judge:
This case was heard in Coral Gables. Florida, March 7,
1978. The charge was filed November 15 and served on the
Respondents November 17, 1977. The complaint was issued
December 30, 1977, and duly answered by the Respon-
dents.
The issue is whether or not a subcontracting clause in a
collective-bargaining agreement between the Respondents
violates Section 8(e) of the National Labor Relations Act,
as amended. For the reasons fully set forth below, I con-
clude that the subcontracting clause violates Section 8(e).
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel, the Charging Party,
and the Respondent Union.' I make the following:
FINDINGS OF FACT AND CONCLUSION OF LAW
I. JURISDI(TION
SAC Construction Company is a Florida corporation
with its principal office at 9501 South Dixie Highway, Mi-
ami, Florida. It is a general contractor in the construction
industry.
Steel and Ornamental Erectors Association of South
Florida, Inc., is an association of employers whose mem-
bers are engaged in business as contractors and subcontrac-
tors in the building and construction industry and exists for
the purpose of representing its members in collective-bar-
gaining negotiations with the Respondent Union.
During the past 12 months. SAC Construction Company,
and the employer-members of the Respondent Association,
purchased goods and supplies valued in excess of $50,000
from suppliers within Florida which in turn received the
supplies from outside Florida. I find that SAC Construction
Company and the Respondent Association, including its
employer-members, and each of them, have at all times ma-
terial been, and are now, employers and persons engaged in
commerce or in an industry affecting commerce within the
meaning of Section 2(1), (2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. UNFAIR LABOR PRACTICES
October 31, 1976, which was then automatically renewed
for I year, and the current agreement, effective October 31,
1977, to October 31, 1978, contained the following provi-
sion, which is under attack in this proceeding:
Article 192
Sub-contractors
The Employer agrees not to sub-contract or sublet
any work covered by this Agreement to any person,
firm or corporation which is not in contractual rela-
tionship with the International Association of Bridge,
Structural and Ornamental Iron Workers or any of its
affiliate Local Unions.
Article I is entitled "Craft Jurisdiction," and provides:
It is agreed that the jurisdiction of work covered by
this Agreement is that provided for in the charter grant
issued by the American Federation of Labor to the
International Association of Bridge, Structural and Or-
namental Iron Workers, it being understood that the
claims are subject to trade agreements and final deci-
sions of the A.F.L.-C.I.O. as well as the decisions ren-
dered by the National Joint Board for the Settlement
of Jurisdictional Disputes or any of its successors or
governmental agencies having jurisdiction thereof.
Article 6, entitled "Jurisdiction of Work," provides, in sec-
tion I, "This International Association claims for its mem-
bers the fabrication, production, erection and construction
of all iron, steel ... subject to trade agreements and deci-
sions of the National Joint Board for the Settlement of Ju-
risdictional Disputes or any of its successors or governmen-
tal agencies having jurisdiction thereof." Section 17 of
article 6 is entitled "Material, Sorting, Distribution and
Storage Points" and provides:
The sorting, distributing, and handling of all mate-
rial coming under the jurisdictional claims of the
Union in or about the job, or at storage points, shall be
done by Ironworkers, in accordance with international
regulations and official decisions. All unloading of fab-
ricated materials at railroad sidings or reloading of
same shall be the work of the Ironworkers.
Article 3 is entitled "Settlement of Disputes" and provides
for final and binding arbitration of
[a]ll questions and disputes arising between an Em-
ployer and the Union regarding wages, hours, working
conditions, interpretation of this Agreement (excepting
therefrom Management's Functions and Prerogatives)
A. Facts
The record shows that a coliective-bargaining agreement
between the Respondent Parties effective May I, 1975, to
I The Charging Party has filed a motion to strike portions of the Respon-
dent Union's bnef referring to an attempt by the Regional Director to obtain
a 10(1) injunction enjoining the Respondents from maintaining, giving effect
to, or enforcing the subcontracting clause involved in this proceeding: there-
after. the Respondent Union filed an offer to prove that the request for an
injunction has been denied. I find that the injunction proceeding is not rel-
evant and therefore grant the motion to strike and reject the offer of proof.
' The relevant contract provisions set forth are those in the current agree-
ment. Identical provisions were included in the prior contracts except where
specifically explained herein. The subcontracting clause was numbered art.
22 in the prior agreements. Although no 10(b) issue has been raised with
respect to the subcontracting clauses in the prior agreements, no useful pur-
pose would be served by a specific ruling on those agreements, as they have
now been superseded and are no longer in effect. and such a ruling would
therefore not affect the order herein. See Milk Drivers and Dairy Enployees,
Local Union No. 537 (Sealtes! Foods, A Division of National Dairy Products
Corporationl. 147 NLRB 230 (1964)
439
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unless otherwise specifically provided herein, violation
of any article of this Agreement.'
Article 4, entitled "Strikes and Lockouts." provides:
It is mutually agreed that there shall be no strikes
authorized by the Union or no lockouts authorized by
the Employer, except for the refusal of either party to
submit to arbitration in accordance with Article 3, Set-
tlement of Disputes, or failure on the part of either
party to submit to arbitration, or to carry out the
award of the Board of Arbitration, or for an employer
to fail to comply with requirements or contributions to
any one or more Funds covered by this Agreement, or
to engage in any action which erodes the work oppor-
tunities of employees covered by Article 21, (a), (b). (c)
and (d) of this contract, or to engage in any action
which erodes Management Functions and Prerogatives
covered by this contract.4
The Respondent Association has 10 employer members.
all of which are unionized companies engaged in steel erec-
tion, or fabrication and erection of steel. and employ mem-
bers of the Respondent Union' to do their steel-erection
work. Those which also perform fabrication employ mem-
bers of another union to do that work.
The geographical jurisdiction of the Respondent Union
covers five counties of southern Florida. Union officials tes-
tified that the jurisdictional provisions of the contract ex-
tend to all work claimed by the International Association of
Bridge, Structural & Ornamental Iron Workers, AFL CIO:
but that the jurisdiction of Local 272 is defined by its char-
ter and by trade agreements with other AFL-CIO unions
and decisions of the National Joint Board and its successor
the Impartial Disputes Board and covers only on-site con-
struction work, including on-site fabrication, and unloading
railroad cars of iron and steel to be used on the jobsite, but
does not cover shop, foundry, or related iron-fabrication
work which is within the jurisdiction of another local.
Union officials credibly testified, and I find, that a signa-
tory employer remains bound by the agreement, including
the subcontracting provision, even if it employs no mem-
bers of the Union but subcontracts out the iron work on a
job: that the subcontracting clause requires a signatory em-
ployer which obtains a job outside the geographical juris-
diction of the Union to subcontract work on that job to the
appropriate Iron Workers local in that area; and that. as
the agreement applies only to iron work, a signatory em-
'The only disputes otherwise specifically provided for in Article 3 are
jurisdictional disputes. which must be submitted to the National Joint Board
or its successor.
' Although article 21 of the current agreement is a short unparagraphed
provision entitled "Duration and Termination," the reference is apparently
to article 18 (numbered 21 in the prior agreements), entitled "Referral
Clause." which, among other things, divides employees into four groups, A,
B. C, and D, according to length of time in the trade.
I There is testimony that most of the major general contractors in southern
Florida, none of which are members of the Respondent Association, have
also signed the Association-Union agreement. The names of those general
contractors are not in the record, and none are parties to this proceeding.
The validity of their agreements with the Respondent Union is therefore not
in issue in this case.
ployer is free to subcontract any noniron work to nonunion
subcontractors. 6
Union Business Agent and Secretary-Treasurer William
Phillips admitted that signatory employers normally honor
the agreement and employ Iron Workers themselves or sub-
contract to employers which are signatories and hire people
from the Union.'
Union officials also testified that it was not the Union's
intent under article 4 to permit a strike for a violation of the
subcontracting clause, that the Union has never struck or
picketed an employer for violation of the clause, and that it
is not its intention to ever enforce the clause "in an unlaw-
ful or illegal manner." Eugene Bowen, president of the Re-
spondent Association, testified that after the Association
unsuccessfully attempted to eliminate the subcontracting
clause because of its questionable legality during the nego-
tiations of the current agreement, it made clear that it did
not intend to enforce the provisions "until there was a legal
ruling as to whether it was or wasn't legal."
B. Conclusions
I find that the Respondents, by agreeing to their contract,
including article 19, on October 31, 1977, "entered into"
such agreement within the 10(b) period.' The facts also es-
tablish, and I further find, that the Respondents have main-
tained their agreement, including article 19, and abided by
its terms. I also find that article 19 contravenes Section 8(e)
because it is a union-signatory provision and therefore sec-
ondary, as the employer-members of the Association
therein agree to cease or refrain from doing business with
employers which are not parties to a contract with the
Union's International Union or one of its affiliated local
unions.9
6 In view of the admission of Union Business Agent Claude Scarboro to
this effect and of the provisions of the agreement itself which apply only to
iron work, I do not credit the testimony of Union Business Agent and Secre-
tary-Treasurer William Phillips that the phrase "or any of its affiliate Local
Unions" in Art. 19 includes all local unions affiliated with the AFL-CIO,
even though the Respondent Union may tolerate the employment by one of
its signatory employers of iron workers engaged in shop fabrication (work
over which the Respondent Union claims it does not have jurisdiction) rep-
resented by the Teamsters Union (not an affiliate of AFL-CIO).
7 In only two instances has the Respondent Union attempted action to
enforce the subcontracting clause against signatory employers. In 1976 and
again in 1977, grievances were filed against employers alleged to have sub-
contracted iron work to a nonsignatory employer in violation of the clause.
In both instances, the grievances were taken to arbitration with inconclusive
results. Neither of these enforcement actions are alleged to have taken place
within the 10(b) period. The complaint does not allege, and the General
Counsel specifically disavows, any violation of Sec. 8(bX4Xi) or (ii).
I See Truck Drivers & Helpers Local Union No. 728, International Brother-
hood of Teamsters et al. (Brown Transport Corp.), 140 NLRB 1436, 1437
(1963), enfd. in pertinent part 334 F.2d 539 (D.C. Cir. 1964), holding "that
the act of entering into, signing, executing, or making a contract, either
expressed or implied, which is prohibited by Sec. 8(e), is sufficient to estab-
lish a violation of that section without regard to whether or not there are any
attempts to implement such contract."
9 General Teamsters, Chauffeurs, Warehousemen and Helpers, Local 982,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America (J. K. Barker Trucking Co., et al.), 181 NLRB 515 (1970);
Local 437, International Brotherhood of Electrical Workers, A FL-CIO, et al.
(Dimeo Construction Co.), 180 NLRB 420 (1969); Local 1516, International
Brotherhood of Electrical Workers, AFL-CIO (Mercantile Bank), 172 NLRB
617 (1968). The scope of the proscription beyond the Association unit whose
employees are represented by the Respondent Union to other units repre-
440
IRONWORKERS LOCAL 272
The Association members being in the construction in-
dustry, the main issue is whether or not the subcontracting
clause is protected by the construction-industry proviso to
Section 8(e).
The parties have briefed the impact of the Supreme
Court's decision in Connell Construction Company, Inc. v.
Plumbers & Steamfitters Local Union No. 100, United Asso-
ciation of Journeymen & Apprentices of the Plumbing & Pipe-
fitting Industry of the United States and Canada, AFL-CIO,
421 U.S. 616 (1975), on the subcontracting clause in issue
here. However, the General Counsel and the Charging
Party also contend that the clause is not protected by the
construction-industry proviso, aside from the impact of the
Connell decision, because (I) it is not limited to work done
at the site of construction and (2) article 4 of the agreement
is a "self-help" provision which strips the subcontracting
clause of the proviso's protection. The Respondents deny
these contentions.
Article 19 clearly is not on its face applicable only to "the
contracting or subcontracting of work to be done at the site
of the construction, alteration, painting, or repair of a
building, structure, or other work." as required by the con-
struction-industry proviso. Thus, in article 19, the Em-
ployer agrees "not to sub-contract or sublet any work cov-
ered by this Agreement" to any other employer which does
not have an agreement with the Respondent Union's Inter-
national or one of its affiliated local unions. The Board has
held that it is not necessarily fatal that a clause, like this
one, does not expressly contain "on-site" language," and
the wording of this clause requires an examination of the
agreement as a whole to determine the reach of article 19.
which is "any work covered by this Agreement,"' The
work covered by the agreement is set forth in articles I and
6 and encompasses all work claimed by the Respondent
Union's International, including the fabrication and pro-
duction of all iron and steel as well as "the sorting, distrib-
uting, and handling of all material coming under the juris-
diction of the Union in or about the job, or at storage points
.... All unloading of fabricated materials at railroad siding
or reloading of same...." Therefore, when read in light of
the contract as a whole, as it must be, the scope of article 19
extends beyond on-site construction work to all work
within the jurisdiction of the International, including fabri-
cation and production of steel and work "about the job ...
at storage points ... [and] at railroad siding[s]."
Respondent Union contends that other extrinsic evidence
should be considered, that is, (1) that although the agree-
ment covers all work claimed by its International. the juris-
sented by it and to units represented b other locals of its nternational
estahlishes that the objectives of the subcontracting clause were not merel)
primary work preservation but also protecting the work of members of Iron
Workers generally. which is secondary in nature. Local 1149, United Brother-
hood of Carpenters and Joiners of America. AFL-CIO (American President
Lines, Ld.), 221 NLRB 456, 459 (1975); International nion of Operating
Engineers, Local No. 701, AFL-CIO (Oregon-Columbia Chapter, The Associ-
ated General Contractors of America, In c) 216 NLRB 233. 234 (1975), enfd.
532 F.2d 902 (3d Cir. 1976): Teamsters. Chauffeurs. Warehousemen & Helpers
Local nion 'o 631, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Reynolds Electrical and Engineering
Co, Inc.), 154 NLRB 67 (1965).
IO Ets-Hokin Corporation 154 NLRB 839 ( 1965).
i Mastro Plastics Corp., and French-American Reeds Mfg. Co., Inc. v.
N LR B. 350 US. 270 (1956).
diction of the Respondent Union is limited b' charter, b,
agreements with other AI, ('10 craft unions. and bh deci-
sions of the National Joint Board for the Settlement o J-
risdictional Disputes and its .uccessor to on-site construc-
tion work and (2) that the subcontracting clause ,as
intended to be lawful and has never been applied to of-lsite
work. I find no merit in these contentions. In the first place,
the scope of the work covered by article 19 is not ambigu-
ous. The plain jurisdictional provisions of this agreement
therefore cannot be varied b general protestations of' legal
intent or by parol evidence of the nature of that offered
referencing unauthenticated charter limitations and ,ague
general allusions to agreements and decisions which are not
in evidence. Moreover. to the extent that they may support
the limited-jurisdiction assertions of the Union at this time.
charters, agreements. and decisions can be changed at an
time, and jurisdiction can thereby be expanded. The appli-
cation of the 8(e) proviso cannot be dependent upon such
vague. changeable arrangements to vary the plain wording
of the collective-bargaining agreement which is being mea-
sured against the requirements of the statute. In addition.
the Respondent Union admits that it claims the work of
unloading railroad cars, work which is seldom. if ever, on-
site construction work. Accordingly, I conclude that article
19 is not protected by the construction-industry proviso.
because it is not restricted to on-site work. 2
With regard to the "self-help" contention, article 4, the
no-strike no-lockout clause, when read in conjunction with
article 3, exempts the Respondent Union from its no-strike
commitment if. among other reasons, the Employer fails or
refuses to submit to arbitration, or to abide by any arbitra-
tion award, in any dispute regarding the violation of any
article, not excepting article 19. Here again, neither self-
serving disavowals of intent to apply article 4 to article 19
nor evidence that it has not to date been so applied can
rescue the contract from the legal consequences of its un-
ambiguous language.
It is well established that even otherwise lawful on-site
hot cargo construction-industry provisions can be enforced
only by a lawsuit and not by strikes or other self-help eco-
nomic action proscribed by Section 8(b)(4)(B) "and that
any contract provision which looks not to the courts, but to
strikes. for enforcement is not protected by the proviso." "
The agreement before us permits the Respondent Union to
strike, rather than resorting to the courts, in the event the
Employer fails or refuses to arbitrate an alleged violation of
article 19 or to abide by an arbitration award relating to
such an alleged violation, and therefore exceeds the pro-
scribed bounds of the construction-industry proviso to Sec-
12 N. L R. v International Brotherhood of Teamvers, Chauffeurs and
Warehousemen of America, Lal 24 /UM. Kellogg Company. et all 342
F.2d 18 (2d Cir. 1965): Bricklayers and Stone Masons Union. La,cal 2, Brick-
layers, Masons and Plasterers, nternational Union a/ America, A FL C10, et
al (Gunnar I Johnson & Son, Inc.. 224 NLRB 1021 (1976); Local 1149,
International Br,therhood of Carpenter.r and Joiners of .4 merica, ,4 FL - (10
(American President Lines, Ltd J. supra. International Union of Operating En-
gineers, Local No 70/. A Fl. CO (Oregon-Columbia Ci O' Chapter, The A4sso-
ciated General Contractors of Amerca)J. supra, Local 1516, International
Brotherhood of Electrical Workers, .4 FL CIO (Mercantile Bank), supra
' Muskegon Brick lavers Union =5, Brick la er.i Masons and Plasterers In-
ternarional Union of America A FI. ('IOJ (Greater .luskegon General ('on
tractors .Asvociation). 152 NLRB 360. 365 (19651. enfd. as mnvified 378 F.2d
859 (6th Cir 1967)
441
DI:.(CISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 8(e).'4 Accordingly. I conclude that article 19 is viola-
tive ol Section 8(e) of the Act.
As lfr the impact of the (onnell decision on this case. it is
clear that ornnell authoritatively ruled that the construc-
tion-industry proviso "extends only to agreements in the
context of collective-bargaining relationships." As the Re-
spondent Employers in this case regularly provide employ-
ment to iron worker employees who are represented by the
Respondent Union under the wages, hours, and working
conditions provided in the collective-bargaining agreement
between the Respondents. article 19 is not contended to be,
and is not. outside the proviso under this rule.
More questionable is whether Connell also ruled unpro-
tected construction-industry subcontracting clauses which
apply to work on more than one particular jobsite.' 5 In any
event, as I have found that article 19 is not restricted to on-
site work under previously established law, it a fijrtiori is
not restricted to work performed on any one particular job-
site.16
t Bricklaivrs and Stone Masons Union, Local No. 2, et al. Associated
(;General ('onractsrs of Minnesota], v. N.L.R B. 562 F.2d 775, 788 (D.C(. Cir.
1977); International U:nion of Operating Engineer. Local Union No 12, AFL
('10 (Robert E. ulion. 220 NLRB 530. 533 (1975); Fresno, Madera, Kings
and Tulare (Counies Building and Construction Trades Council (Gage Bros.
(onitructitn), 218 NI.RB 39 (1975); Local 445, International Brotherhood of
Teanster,. (Chaulffcur, Warehousemen and Helpers of America (Edward L.
C:N'lek, Inc. j 194 NL.RB 579. 585 (1971): Brotherhood of Painters, Decora-
Iort and Paperhangers of America I.ocal Union No. 823, AFL-CIO (Indepen-
denr Paining Contraciors of New Mexico. etc.), 161 NLRB 620. 629 (19661.
i See N. .. B. . International Union of Operating Engineers, ocal 542, et
al. (York Countc Bridge. Inc ), 532 F.2d 902. 906 (3d Cir. 1976); 89 Hlarv. L.
Rev. 234 (1975) (arpnter.s .Local Union = 15, United Brotherhood of Carpen-
ters and Jiner o A.4merica, ,4FL ('10, et a (Metro Lathing & Plasiering,
Inc. et al.), 240 NI.RB No. 52 (1979). My own study of the Connell decision
persuades me, however, that the Court did not intend this aspect of its ruling
to he either tentative or dictum. I refer to the Court's reasoning (421 U.S. at
631 632):
If we agreed with Local 100 that the construction industry proviso
authorizes subcontracting agreements with "stranger" contractors, not
limited to an' particular jobsite, our ruling would give cnsruction
unions an almost unlimited organizational weapon. The unions would
be free to enlist any general contractor to bring economic pressure on
nonunion subcontractors. as long as the agreement recited that it only
covered work to be perlormed on some jobsite somewhere. The provi-
so's jobsite restriction then would serve only to prohibit agreements
relating to subcontractors that deliver their work complete to the job-
site.
I al,o refer to the Court's flat declaration, "We therefore hold that this
aigreernent, which is outside the context of a collective-bargaining relation-
ship and not restricted to a particular jobsite. but which nonetheless ob-
ligates Connell to subcontract work only to firms that have a contract with
l.ocal 100," is not protected by Section 8(e) of the NLRA, as amended. I
cannot aoid the conclusion that the Court condemned the subcontracting
clause in (onnell on the two equally weighted grounds, despite its use of the
word possibly" in connection with the particular jobsite requirement else-
where in its decision.
1 I cannot agree with the Respondent Union's contention that Walsh d/
b/a/ Walsh & ('b v%. sSihlecht et al, Trustees, 429 U.S. 401 11977), is relevant
to the issues i this case, nor with its contention that the issues herein cannot
lawfully be resolved by a decision in an adjudicatory proceeding but can
only be resolved by following the rulemaking procedures, including advance
publication in the Federal Register, of the Administrative Procedures Act.
See L. R B. Wman-Gordon (Co, et al. 364 U.S. 759 (19691. 1 also find no
merit in the Union's contention that SAC Construction Company was not
qualified to file the harge in this case, as Sec. 102.9 of the Rules and Regu-
lations of the NLRH provide that any person (defined in Sec. 2(1) of the
NLRA, as amended) may file a charge. Television and Radio Broadcasting
Studio Emph>ees, l.Ical 804 (Radio and Television Division of Triangle Publi-
tations. Inc., etl.). 135 NI.RB 632 (1962). See also N L.R.B. s. Local Union
No. 3, International Brotherhoi.d of Electrical Wiorkers, A FL- CIO [New York
IV. REMEDY
As I have found that the Respondents have engaged in
certain unfair labor practices in violation of Section 8(e), 1
shall recommend that they be ordered to cease and desist
therefrom and to take certain affirmative action, including
the posting of notices, necessary to effectuate the policies of
the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law, upon the entire record, and pursuant to
Section 10(c) of the Act, I issue the following:
ORDER 7
A. The Respondent, Local 272 of The International As-
sociation of Bridge, Structural & Ornamental Iron Work-
ers, AFL-CIO, Miami, Florida, its officers, agents, and rep-
resentatives, shall:
I. Cease and desist from entering into, maintaining, en-
forcing, or giving effect to article 19, "Sub-Contractors,"
which refers to the contracting out of work, in its collective-
bargaining agreement with the Respondent Employers
herein, Steel and Ornamental Erectors Association of South
Florida, Inc., & Member Contractors, effective from Octo-
ber 31, 1977, to October 31, 1978, or any other employers
engaged in commerce, or in an industry affecting com-
merce, wherein said employers agreed to cease or refrain
from doing business with any other person in violation of
Section 8(e) of the Act.
2. Take the following affirmative action:
(a) Post at its business office and meeting halls copies of
the attached notice marked "Appendix A."8 Copies of said
notice, on forms provided by the Regional Director for Re-
gion 12, after being duly signed by the Respondent Union's
representative, shall be posted by the Respondent Union
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 custom-
arily posted. Reasonable steps shall be taken by the Re-
spondent Union to insure that the notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 12, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent Union has taken to comply herewith.
B. The Respondents, Steel and Ornamental Erectors As-
sociation of South Florida, Inc., and its member contrac-
tors, Miami, Florida, their officers, agents, successors, and
assigns, shall:
Telephone Company],. 477 F.2d 260 (2d. Cir. 1973). There is no evidence that
the charge was solicited by the Regional Director. See N.L.R.B. v. Reliance
Steel Products Company, 322 F.2d 49 (5th Cir. 1963).
17 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
's 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."
442
IRONWORKERS LOCAL 272
1. Cease and desist from entering into, maintaining, en-
forcing, or giving effect to article 19, "Suh-Contractors," in
their collective-bargaining agreement with the Respondent
Union herein, effective from October 31, 1977. to October
31, 1978, or any other contract whhereby the Respondent
Employers agree to cease or refrain from doing business
with any other person in violation of Section 8(e) of the
Act.
2. Take the following affirmative action:
(a) Post at their places of business copies of the attached
notice marked "Appendix B."'9 Copies of said notice, on
19 See fn. 18, rupra
forms provided by the Regional Director for Region 12,
after being duly signed by an authorized representative of
the Respondent Employers, shall be posted by the Respon-
dent Employers immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
he taken by the Respondent Employers to insure that said
notices are not altered, defaced, or covered hby any other
material.
(b)Notify the Regional Director for Region 12, in writ-
ing. within 20 days from the date of this Order. what steps
the Respondent Employers have taken to comply herewith.
443