Joint Council of Teamsters No. 42

National Labor Relations Board - Board Decisions

Mar 31, 1980

248 N.L.R.B. 808 (N.L.R.B. 1980)

808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joint Council of Teamsters No. 42, and its affiliated
Local Unions, Sales Drivers & Dairy Employ-
ees, Local 166; General Truck Drivers, Local
235; General Truck Drivers, Chauffeurs &
Helpers, Local 692; Chauffeurs, Teamsters and
Helpers, Local 186; Building Material and
Dump Truck Drivers, Local 420; General Team-
sters, Chauffeurs, Warehousemen & Helpers,
Local 982; Truckdrivers, Warehousemen and
Helpers, Local 898; Teamsters & Warehouse-
men, Local 381; all affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America; Team-
sters, Chauffeurs, Warehousemen and Helpers,
Local 87, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America and Associated General Contractors
of California, Inc.; Building Industry Associ-
ation of California, Inc.; Engineering Contrac-
tors Association, Inc.; Southern California Con-
tractors Association and California Dump
Truck Owners Association and Associated Inde-
pendent Owner-Operators, Inc.
Building Material and Dump Truck Drivers, Local
420, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America and Associated Independent Owner-
Operators, Inc. and Irvine-Santa Fe Company,
Party to the Contract
Building Material and Dump Truck Drivers, Local
420, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America (Irvine-Santa Fe Company) and Asso-
ciated Independent Owner-Operators, Inc.
Cases 21-CE-196, 21-CE-199, 21--CE-200,
and 21-CC-2004
March 31, 1980
DECISION AND ORDER
By Chairman Fanning and Members Penello
and Truesdale
Upon appropriate charges,' the General. Counsel
of the National Labor Relations Board, by the Re-
The original charge in Case 21-CE-196 was filed on December 19,
1977, by California Dump Truck Owners Association (rierein called
CDTOA) against Joint Council of Teamsters No. 42, and its affiliated
Local Unions, Sales Drivers & Dairy Employees, Local 166; General
Truck Drivers, Local 235; General Truck Drivers, Chauffeurs & Helpers,
Local 692; Chauffeurs, Teamsters and Helpers, Local 186; Building Mate-
rial and Dump Truck Drivers, Local 420; General Teamsters, Chauffeurs,
Warehousemen & Helpers, Local 982; Truckdrivers, Warehousemen and
Helpers, Local 898; Teamsters & Warehousemen, Local 381; all affiliated
with the International Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America; Teamsters, Chauffeurs, Warehousemen
and Helpers, Local 87, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (herein collectively called
Respondent Unions); and against Respondent Associated General Con-
tractors of California, Inc.; Building Industry Association of California,
Inc.; Engineering Contractors Association, Inc.; and Southern California
Contractors Association (herein collectively called Respondent Associ-
ation). CDTOA filed a first amended charge in Case 21-CE-196 on De-
cember 23, 1977. The charge in Case 21 CE-199 was filed on January 3,
1978, by Associated Independent Owner-Operators, Inc. herein called
248 NLRB No. 82
gional Director for Region 21, issued an order con-
solidating cases, a consolidated complaint, and a
notice of hearing on January 23, 1979. Copies of
the charges, complaint, and notice of hearing were
duly served on Respondents.
The complaint alleged that Respondent Unions
and Respondent Associations had violated Section
8(e) of the Act by entering into agreements where-
by the employer-members of Respondent Associ-
ations have ceased or refrained, or agreed to cease
or refrain, from doing business with other persons.
The complaint alleged further that Respondent
Local 420 had violated Section 8(b)(4)(ii)(A) of the
Act. Respondents filed answers to the complaint
and thereby denied the commission of any unfair
labor practices.
On June 23, 1979, the parties in the consolidated
cases executed a stipulation of facts and a motion
to transfer proceedings to the Board in which the
parties waived a hearing before an administrative
law judge and agreed to submit the cases directly
to the Board for findings of fact, conclusions of
law, and a Decision and Order, based on a record
consisting of the stipulation of facts and extensive
exhibits attached thereto. On September 13, 1979,
the Board approved the stipulation of the parties
and transferred the proceedings to the Board.
Thereafter, the General Counsel, CDTOA, Re-
spondent Unions, Respondent Associations, and
Respondent General Truck Drivers, Local 235,
filed briefs with the Board.
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 entire record stip-
ulated by the parties2 and the briefs filed by the
parties, and hereby makes the following findings
and conclusions:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Respondent Association, comprised of various
employers in the building and construction industry
in southern California, engage in collective bargain-
ing for and negotiate collective-bargaining agree-
ments on behalf of their respective employer-mem-
AIOO) against the Respondent Unions and the Respondent Associations.
The charges in Cases 21-CE-200 and 21-CC-2004, involving the em-
ployer Irvine-Santa Fe Company (herein called Irvine), were filed on
January 5, 1978, by AIOO against one of the Respondent Unions, Build-
ing Material and Dump Truck Drivers, Local 420 (herein called Respon-
dent Local 420).
2 On January 26, 1979, the United States District Court for the Central
District of California issued an injunction against Respondents pursuant
to a petition filed by the General Counsel under Sec. 10() of the Act.
Copies of the pleadings, order, and all relevant documents filed by the
parties have been attached as an exhibit to the stipulation of facts.
JOINT COUNCIL OF TEAMSTERS NO. 42 809
bers with various labor organizations, including
Respondent Unions. In the course and conduct of
business operations, Respondent Associations, in
the aggregate, annually purchase and receive
goods, materials, and supplies valued in excess of
$50,000 directly from suppliers outside the State of
California.
Irvine is a general contractor in the building and
construction industry in southern California. At all
times material herein, Irvine has been engaged in a
construction project in the city of Alhambra, Cali-
fornia (herein called the Alhambra project), where
it has subcontracted certain work to various sub-
contractors, including Pacific Railroad Construc-
tors. In connection with its work as a subcontrac-
tor of Irvine on the Alhambra project, Pacific Rail-
road Constructors has purchased and received ma-
terials and supplies valued in excess of $50,000 di-
rectly from suppliers located outside the State of
California.
The parties stipulated, and we find, that the em-
ployer-members of the Respondent Associations,
including Irvine, are employers engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that each of
Respondent Unions is, and at all times material
herein has been, a labor organization within the
meaning of Section 2(5) of the Act.3
11. THE ALLEGED UNFAIR LABOR PRACTICIES
A. The Issues
1. Do certain sections pertaining to owner-opera-
tors in article XIII of Respondents' current collec-
tive-bargaining agreement violate the general pro-
hibition in Section 8(e) of the Act?
(a) Are the owner-operators of for-hire dump
trucks independent contractors or employees
within the meaning of the Act?
(b) If the owner-operators are independent con-
tractors, are the sections of article XIII which
apply to them secondary in nature?
2. Is article XIII limited to construction jobsite
work in a way which would entitle it, even if sec-
ondary, to protection under the first proviso to
Section 8(e) of the Act?
3. Has Respondent Local 420 violated Section
8(b)(4)(ii)(A) of the Act by engaging in threatening
or coercive conduct with an object of forcing self-
employed persons to join a labor organization?
3 The stipulation of facts indicated that Respondent General Truck
Drivers, Local 235, is now merged with and subsumed by Sales Drivers,
Food Processors, Warehousemen & Helpers ocal 952
B. The Stipulated Facts
On or about July 1, 1977, Respondent Associ-
ations, on behalf of their employer-members, in-
cluding Irvine, entered into a Master Labor Agree-
ment (herein called the MLA) with Respondent
Unions. The MLA is effective from July 1, 1977,
until June 15, 1980, and covers all of the southern
California area except San Diego County.
The following sections of MLA article XIII, en-
titled "Owner-Operators," are at issue in this pro-
ceeding:
1302. The Owner-Operator shall be carried
on the payroll of the Contractor as an employ-
ee and as such, all the terms and conditions of
this Master Agreement and any amendment or
amendments thereto, shall be applicable to him
except as provided elsewhere in this Article
and except that in the event that it is deter-
mined that the services of an Owner-Operator
were terminated without just cause, any pay-
ment for time lost shall be limited to the wage
and fringe benefit payments provided in this
Agreement, and shall not in any event include
any payment with respect to the equipment or
the loss of use thereof; and except, further,
that Owner-Operator shall not be subject to
the provisions of Paragraph 201, sub-para-
graph 201.1 through 201.7.1 inclusive.
1303. Hiring:
The Contractor or subcontractor shall make
every reasonable effort to refer to the Local
Union with area jurisdiction over the work all
Owner-Operators or drivers of equipment for
clearance before work begins; and, in any
event, the Union shall be notified of the name
and Social Security number of the Owner-Op-
erator within forty-eight (48) hours after the
Owner-Operator begins work on that job.
1306. Union Membership.
(a) All employees who are presently mem-
bers of a Local Union hereunder shall, as a
condition of continued employment, maintain
such membership in good standing.
(b) As a condition of continued employ-
ment, all employees covered by this Agree-
ment shall on the 8th day after commencing
employment under this Agreement, or the date
of this Agreement, which ever is later, become
and remain members of the Local Union in
good standing.
1307. Terminations.
The Contractor or subcontractor will termi-
nate the employment of any employee covered
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by this Agreement after notice by the Union,
or the Local Union with jurisdiction in the
event such employees shall fail to comply with
Section 1306 of this Article; provided that
membership in the Union, or the Local Union
with jurisdiction was available to such employ-
ee on the same terms and conditions generally
applicable to other members, and the member-
ship was not denied or terminated for reasons
other than the failure of the employee to
render the periodic dues, and the initiation fees
uniformly required as a condition of acquiring
and retaining membership. Such employee
shall not be re-employed by the Contractor or
subcontractor until the employee has paid or
tendered to the Local Union with jurisdiction,
any such initiation fee, re-initiation fee or dues
accrued to date of termination.
1312. The provisions of this Article have
been negotiated and agreed upon by and be-
tween the parties for the objects and purposes
expressed in Paragraph 1313 of the Article.
The parties have not undertaken to negotiate
for the employees any profit whatsoever for
the leasing and rental of the equipment they
drive. On the contrary, compensation for the
equipment shall be set by Agreement: between
the Contractor and the Owner-Operator at a
level which will not circumvent or defeat the
payment of wages, fringes and conditions of
any employee covered by this Master Labor
Agreement and which will assure compensa-
tion to the Owner-Operator of not less than
the actual cost of operation of such equipment.
1313. It is further mutually understood and
agreed that the intent of this Article is to
assure the payment of wages, fringes, and con-
ditions as provided in the Master Agreement
and to prohibit the making and carrying out of
any plan, scheme or device to circumvent or
defeat the payment of wages, fringes and con-
ditions as provided in this Master Agreement.
Any such agreement, contract or arrangement
presently in existence shall be abrogated upon
the execution of this Agreement.
1314. It is further agreed that the Contractor
will not devise or put into operation any
scheme, whether herein enumerated or not to
defect the terms of this Article of this Master
Agreement, nor shall any Owner-Operator's
arrangement with a Contractor be terminated
for the purpose of depriving any other em-
ployee of employment. In the event that the
Contractor has available equipment, the
Owner-Operator may be assigned to operate
such equipment on the job during the period
of the repair of the Owner-Operator's equip-
ment and not to exceed that work shift and so
long as no employee is laid off of provide
work for such equipment.
1317. It is understood by the parties that this
Agreement provides for an Employer-Employ-
ee relationship between the Contractor or sub-
contractor and each Owner-Operator of equip-
ment used hereunder.
1318. It is recognized that many Owner-Op-
erators have executed "short-form" agree-
ments with the Teamsters Union which incor-
porate by reference provisions of this Master
Labor Agreement. The provisions of such
"short-form" agreement shall be applicable to
said Owner-Operators only in their capacity as
employers, i.e., when such Owner-Operators
are employing one or more employees. When
Owner-Operators are working on a job cov-
ered by this Master Labor Agreement their
employment shall be covered by the Owner-
Operator clause of this Agreement.
1319. If a Contractor through the grievance
procedure is found violating any portion of
this Article, the Joint Adjustment Board or the
Impartial Chairman, as described in Article V,
shall require the Contractor to immediately
pay compensatory damages for each Owner-
Operator with respect to whom the Contrac-
tor is in violation in an amount equal to the
sum of Health and Welfare and Pension contri-
butions, under the terms of this Agreement,
for eight hours for each day or portion thereof
the violation occurred such damages to be
made payable to the Construction Teamsters
Security Fund by check promptly mailed to
the respective Local Union. The Joint Adjust-
ment Board or Impartial Chairman may also
grant such further relief as may be deemed ap-
propriate.
1321. Notwithstanding any other provision
of this Agreement, this Article XIII shall be
applicable only to Owner-Operators perform-
ing (or who, upon their employment, will be
performing) work to be done at the site of
construction, alteration, painting or repair of a
building, structure, or other construction
work.
JOINT COUNCIL OF TEAMSTERS NO. 42 811
1321.1 The term "work to be done at the
site of the construction, alteration, painting or
repair of a building, structure, or other con-
struction work" as used in the Paragraph 1321
shall include all driving to, from and in con-
nection with hauling materials to or from any
source or disposal site on the one hand, and a
geographical site of construction, on the other
hand, in accordance with the following:
1321.1.2 Hauling of materials between a pri-
mary location and a secondary location not ex-
cluded by Paragraph 1321.1.1 above4 that is
located five (5) or less miles by the closest fea-
sible means of access from the nearest bound-
ary of the primary location shall be work to be
done at the site, effective August 1, 1977.
1321.1.1 Delivery of materials to or from
commercial suppliers or public dumps off the
primary location shall always be exempt from
the provisions of Article XIII. Any other gen-
eral exclusions from the construction industry
proviso, previously defined by the NLRB or
the courts, shall continue to be applicable in
interpreting Article XIII.
1321.1.3 Hauling of material between a pri-
mary location and a secondary location locat-
ed in excess of five (5) miles by the closest fea-
sible means of access from the nearest bound-
ary of the primary location shall not be work
to be done at the site, effective August 1, 1977.
1321.2 Effective January 1, 1978, the mile-
age outlined in Paragraphs 1321.1.2 and
1321.1.3 will be increased to six (6). Effective
July 1, 1978, the mileage outlined in para-
graphs 1321.1.2 and 1321.1.3 will be increased
to seven (7). Effective January 1, 1979, the
mileage outlined in paragraphs 1321.1.2 and
1321.1.3 will be increased to eight (8). Effec-
tive July 1, 1979, the mileage outlined in para-
graphs 1321.1.2 and 1321.1.3 will be increased
to nine (9). Effective January 1, 1980, the mile-
age outlined in paragraphs 1321.1.2 and
1321.1.3 will be increased to ten (10).
1321.5 It is expressly understood that if a
haul is covered by the terms of this Section,
all time spent on any public road shall be cov-
ered as well as all other time spent in connec-
tion with such haul.
' For unknown reasons, the complaint, stipulation of facts, and briefs
fail to set forth the terms of MLA paragraph 1321.1.1, which states:
1321.6 The Owner-Operator shall become a
bona-fide employee as defined in Paragraphs
1301 and 1302 upon reporting for work on the
first day on that job, such employee status to
be effective from the first hour of work per-
formed.
The parties agree that the foregoing provisions
of the MLA apply to the owner-operators of dump
truck equipment who perform certain hauling ser-
vices within the geographic area covered by the
MLA for the construction contractors who are em-
ployer-members of Respondent Associations. 5 Al-
though contractors have in some instances used
their own driver-employees in company-owned
trucks to haul material to and from construction
sites, they usually must engage dump truck owner-
operators to perform such work. On occasion, a
contractor may deal directly with and be billed di-
rectly by an owner-operator for a particular job,
but the prevalent practice for the procurement of
an owner-operator's services involves a tripartite
relationship among the contractor, owner-operator,
and a trucking broker known as an overlying carri-
er. Under a typical arrangement, a contractor con-
tracts with an overlying carrier for the provision of
needed transportation services. The overlying car-
rier then performs such services either by using his
own equipment, vehicles, and employee-drivers, or
by using owner-operators with whom the overly-
ing carrier has executed subhaul agreements.
An overlying carrier commonly has subhaul
agreements with numerous owner-operators. In
turn, an individual owner-operator usually has sub-
haul agreements with several overlying carriers. A
construction contractor, however, ordinarily has
no direct agreement with an owner-operator and
no control over an overlying carrier's selection of
the owner-operator who will work for the contrac-
tor. Although bound by subhaul agreement, an
owner-operator is free to refuse an overlying carri-
er's job referral, to leave a job prior to its comple-
tion, or to substitute another owner-operator in his
stead. Pursuant to one or more subhaul agreements,
an owner-operator may work on several different
jobsites for several different contractors within a
week or even a single day.
Whenever an owner-operator's vehicle travels in
excess of 50 feet along a public highway, the ac-
8 These and similarly occupied owner-operators elsewhere in Califor-
nia have been the subject of considerable litigation, hereinafter discussed,
before the Board and the courts of appeals. In reference to prior litiga-
tion, the parties herein agree that the evidence adduced at a Board repre-
sentation case hearing in Case 21-RD-1008 remains unchanged and appli-
cable to the determination of the owner-operators' present employment
status. The evidence in this proceeding accordingly includes both an ex-
tensive statement of stipulated facts and the record from Case 21-RD-
1008, which is attached as an exhibit to the stipulation.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tivities of the owner-operator and overlying carrier
are regulated by the California Public Utilities
Commission (PUC), which establishes minimum
tariffs designed to reflect the costs of both labor
and equipment use for any job. The requirements
of a particular job, however, may result in trilateral
negotiations for the payment of a rate higher than
the PUC minimum. When an overlying carrier
refers an owner-operator to a contractor for a job,
the overlying carrier bills and collects sums due
from the contractors, deducts 5 percent as a bro-
kerage fee, and transmits the remainder to the
owner-operator. Whether the mode of payment is
direct from contractor to owner-operator or
through an overlying carrier, an owner-operator
keeps his own record for billing purposes of time
spent on the job and submits a freight bill based on
that record to the appropriate parties. (Some con-
tractors use an employee designated as a "load
checker" to maintain a separate record of an
owner-operator's hours for purposes of verifying
the freight bill's accuracy.) An owner-operator is
generally paid in gross, with no deductions for
taxes or benefit payments, and only for hours when
his equipment is in actual use. In contrast, employ-
ee-drivers of a contractor receive hourly based net
wages for the duration of a fixed workday, even if
their company-owned vehicles are not operating at
all times.
The dump truck equipment used by an owner-
operator in the performance of services for con-
struction contractors varies, but may include a
tractor, a semitrailer unit, a truck and transfer trail-
er, a tractor with a bottom dump trailer, a semibot-
tom dump trailer, or a truck and pup trailer, or ser-
vice equipment may be purchased or leased. An
owner-operator is responsible for all costs of
owning, operating, maintaining, or repairing any
equipment used. These costs include the basic ex-
pense of financing equipment purchases or leases
and the additional expenses entailed by, inter alia,
PUC permit, bonding, and liability insurance re-
quirements, California licensing fees, Federal and
state income taxes, Federal highway use taxes, and
any traffic violations.
A contractor may use the services of a dump
truck owner-operator for a variety of construction
projects, including the construction of highways,
residential or commercial structures, underground
passageways, and overhead bridges. Whatever the
project, owner-operators participate in the loading,
hauling, and unloading of materials between two
sites. In some instances, an owner-operator's activi-
ties take place entirely within the physical confines
of the construction project, herein called the geo-
graphical site of construction. 6 In other instances,
an owner-operator must haul materials along a pri-
vate or public right-of-way between the geographi-
cal site of construction and a remote location.7 If
the latter type of haul originates at the site of con-
struction, it typically involves hauling excess exca-
vated materials or refuse to a remote dumping lo-
cation which may be either a public dump or a site
opened by the contractor specifically for the con-
struction project, or hauling broken asphalt to a
crushing facility where the material's components
are separated for reuse. If the haul terminates at the
geographical site of construction, it typically in-
volves hauling material from a remote "borrow
pit" opened by the contractor specifically to obtain
materials needed for a construction project, or
hauling materials from a remote commercial source
of supply such as a rock crushing plant, asphalt
supplier, sand pit, or dirt pit. In addition to the
foregoing, an owner-operator may haul material
such as dirt from the contractor's geographical site
of construction to another geographical site of
other construction, which may or may not involve
the same contractor. s
Whether at the geographical site of construction
or at a remote "borrow pit" established by a con-
tractor, an employee of the contractor, usually a
member of the Operating Engineers Union, oper-
ates a skip-loader or other equipment to load mate-
rial into an owner-operator's dump truck. At a
remote commercial source of supply, the commer-
cial vendor's employee, who may or may not be a
member of any labor organization, loads the
owner-operator's truck by methods which vary ac-
cording to the material involved. The method of
unloading materials at any site also varies, depend-
ing upon the type of dump truck, the type of mate-
rial hauled, and-at a geographical site of construc-
tion-the nature of the construction project. An
owner-operator knows from experience to dump a
load as closely as possible to where a bulldozer op-
erator or grader operator, usually members of Op-
erating Engineers, is working. During loading or
unloading procedures, the owner-operator ordinari-
ly remains in his vehicle and does not converse
with any employee on the site. The owner-operator
I The stipulation of facts defines the geographical site of construction
as "including contiguous lands temporarily used during the construction,
upon which the final highway, road, structure, building, conduit, canal,
channel, bridge or other things will be located after that construction ac-
tivity is complete."
7 As used ill the stipulation of facts, the term "remote" applies to a
location which is physically separated from the geographical site of con-
struction by more than the width of a public road.
I Employee-drivers of a contractor also perform all of the types of
hauls described. The record indicates, however, that although employee-
drivers of contractors i Respondent Association operate loading equip-
ment, pickup trucks, water trucks, and flatbed trucks, they do not usually
drive the kind of dump truck equipment used by owner-operators
JOINT COUNCIL OF TEAMSTERS NO. 42 813
is solely responsible for the operation of his truck,
but he may receive general instruction from a con-
struction project superintendent or directional sig-
nals from a contractor's employee-flagman, who is
usually a member of the Laborers Union.
At any geographical site of construction or
remote location, actual loading times vary in aver-
age from I to 7 minutes and actual unloading times
average 3 minutes or less. The total amount of time
spent at any location by the owner-operator may
vary depending upon, inter alia, waiting time. A
contractor utilizing an owner-operator's services is
cost-motivated to insure that the owner-operator
spends an absolute minimum of time per haul. In
this regard, a contractor normally tries to locate a
remote source of supply or dumping site as close as
possible to the geographical site of construction. A
contractor may also designate the route to be trav-
eled to and from the geographical site of construc-
tion, although owner-operators are often free to
choose their own route. The owner-operator ordi-
narily drives at approximately 30 miles per hour on
public roads, more slowly on undedicated roads, so
that travel time between a geographical site of con-
struction and a remote site 5 miles away would
average 25 minutes.
In reference to the relationship between the
aforementioned provisions of MLA article XIII
and the aforementioned activities of California
dump truck owner-operators, the parties have
placed into evidence and stipulated the credibility
of sworn affidavits given by Gary Hope, a project
superintendent for MLA signatory construction
contractor Irvine, and lendelle Kinder, a dump
truck owner-operator. Hope states that during the
first week of December 1977, he had a conversa-
tion with Charles Tanberg, business agent for Re-
spondent Local 420, at Irvine's Alhambra, Califor-
nia, construction site. Tanberg told Hope in this
conversation that the MLA required all truck-
drivers on Irvine's job, including owner-operators,
to join the Teamsters. Thereafter, on December 22,
1977, Hope stated that he observed Tanberg stop-
ping trucks in the loading area at the Alhambra
jobsite and talking to the drivers. Later in the
morning, Hope learned that one of Irvine's fore-
men had permanently "signed out" some truck-
drivers because they were not members of the
Teamsters. After futile attempts to secure more
trucks, Hope called an overlying carrier and "told
him not to send any more truckers unless they
were members of the Teamsters."
Kinder's affidavit corroborates Hope's statement.
According to Kinder, he was working as an
owner-operator driver at Irvine's Alhambra jobsite
on December 22, 1977, when Tanberg asked to see
his Teamsters card. During the ensuing conversa-
tion, Tanberg indicated to Kinder that he would
not be continuing his work for Irvine because he
was not a union member. At the end of the day,
Kinder was told by Irvine's foreman not to return
on the following morning, in spite of the availabil-
ity of additional work, because of the "union prob-
lem."
C. Contentions of the Parties
The General Counsel, CDTOA, and Respondent
Associations all contend that the provisions of
MLA article XIII set forth in full above are pro-
scribed by Section 8(e) of the Act. Specifically,
these parties argue that article XIII applies to
owner-operators who are independent contractors,
is secondary in nature, and is not privileged by the
construction industry proviso to Section 8(e) be-
cause it is not limited to construction jobsite work.
The General Counsel further contends that Re-
spondent Local 420 has threatened, coerced, and
restrained owner-operators who are independent
contractors of Irvine with an object of forcing or
requiring them to join a union, in violation of Sec-
tion 8(b)(4)(ii)(A) of the Act.
With respect to both the alleged 8(e) and
8(b)(4)(ii)(A) violations, Respondent Unions con-
tend that the dump truck owner-operators at issue
are employees rather than independent contractors.
Respondent Unions therefore contend that article
XIII and the alleged conduct of Respondent Local
420 must be considered primary and lawful in
nature when applied to owner-operators qua em-
ployees of the employer-members of Respondent
Associations. Even if the Board finds the owner-
operators to be independent contractors, Respon-
dent Unions assert that article XIII is properly
limited to jobsite work and entitled to the protec-
tion of the construction industry proviso.
D. Discussion and Conclusions
1. The alleged 8(e) violation
Section 8(e) of the Act forbids entry into a col-
lective-bargaining agreement whereby an employer
agrees to refrain dealing in the product of another
employer or to cease doing business with any other
person. 9 It is well established, however, that con-
The actual text of Sec. 8(e) provides in relevant part:
It shall he an unfair labor practice for any labor organization and
any employer to enter into any contract or agreement, express or im-
plied, whereby such employer ceases or refrains or agrees to cease
or refrain from handling, using, selling, transporting or otherwise
dealing in any of the products of any other employer, or to cease
doing business with any other person, and any contract or agreement
entered into heretofore or hereafter containing such an agreement
shall hbe to such extent unenforceable and void: Provided, That noth-
('ontinued
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tract clauses which may technically fall within the
literal proscription of Section 8(e) are not unlawful
if the clauses are found to have the primary objec-
tive of preserving or protecting work performed
by the contracting employer's employees. 10 Fur-
thermore, even clauses which are secondary in
nature and within the general proscription of Sec-
tion 8(e) may be lawful and protected if they satis-
fy the requirements for exemption under the con-
struction industry proviso to Section 8(e).
The complaint alleges that the several cited para-
graphs of article XIII in Respondent's MILA vio-
late Section 8(e) because they require signatory em-
ployers to cease doing busines with dump truck
owner-operators who are independent contractors
on any terms other than those applicable to unit
employee-drivers under the MLA. In determining
the merits of the complaint, we are faced with the
threshold question whether the owner-operators
actually are independent contractors, rather than
employees, when working for the employer-mem-
bers of Respondent Association. 1 If the owner-op-
erators are employees within the meaning of the
Act, then article XIII is primary in scope and the
complaint must be dismissed.
As indicated in the previous section of this Deci-
sion, the Board is no stranger to proceedings in-
volving the employment status of these owner-op-
erators. In 1971, petitions were filed in Cases 21-
RD-1008 and 20-RD-721 to decertify the Team-
sters Unions as representatives of the dump truck
owner-operators within the Unions' respective
southern and northern California jurisdictions.
After separate hearings, the Board consolidated the
two representation cases for issuance of a Decision
and Order finding the owner-operators to be em-
ployees. 12 Subsequent to hearings on additional
matters, the Board issued a Supplemental Decision
and Direction of Election in each of the represen-
tation proceedings.' 3 Before the directed elections
could be conducted, the Teamsters and various em-
ployer associations in the California construction
industry executed new collective-bargaining agree-
ing in this subsection (e) shall apply to an agreement between a labor
organization and an employer in the construction industry relating to
the contracting or subcontracting of work to be done at the site of
the construction, alteration, painting, or repair of a building, struc-
ture, or other work
'o National Woodwork Manufacturers Association v. N.L.R.B., 386 U.S.
612 (1967).
" Under Sec. 2(3) of the Act, the term "employee" does not include
"any individual having the status of an independent contractor." General
agency principles, paramount among which is the "right-t:o-control" test,
apply to the determination of whether an individual is an employee or
independent contractor. N.L.R.B. v United Insurance Company, 390 U.S.
254 (1968).
12 Contractor Members of the Associated General Contrctors of Califor-
nia, Inc., 201 NLRB 311 (1973).
is Contractor Members of the Associated General Contractors of Califor-
nia, Inc., 209 NLRB 363 (1974); 209 NLRB 366 (1974).
ments for both southern and northern California.
As a result, parallel unfair labor practice charges
were filed with the Board alleging violations of
Section 8(a)(2) and (1) of the Act and "blocking"
further processing of the representation cases. The
Board thereafter issued a Decision and Order
adopting an administrative law judge's findings that
the alleged unfair labor practices had been commit-
ted.' 4
Upon a petition for enforcement and a cross-peti-
tion for review, the United States Court of Appeals
for the Ninth Circuit denied enforcement of the
Board's Order because it found, contrary to the
Board, that the owner-operators were independent
contractors who were not properly part of any em-
ployee unit.15 Upon remand of the unfair labor
practice case from the court, the Board consolidat-
ed it with the representation cases still pending and
issued a Supplemental Decision and Order finding
"pursuant to law of the case" that the dump truck
owner-operators were independent contractors, not
employees.' Prior inconsistent Decisions were va-
cated and all proceedings were dismissed.
Notwithstanding the foregoing history of litiga-
tion, Respondent Unions seek de novo consideration
of the dump truck owner-operators' status in the
present case and urge the Board to find these indi-
viduals to be employees. We do not regard such a
course of action as appropriate. In the prior repre-
sentation case and unfair labor practice case litiga-
tion, the same parties as are involved herein, or
their privies, were present and fully litigated the
identical issue of employment status considered
herein. Moreover, there has been no significant
change in the nature of the owner-operators' work
since that litigation terminated. Accordingly, under
established principles of res judicata and collateral
estoppel, the final and conclusive finding in the
prior cases that the dump truck owner-operators
are independent contractors is controlling in this
proceeding. 7
The owner-operator provisions of MLA article
XIII, paragraphs 1302, 1303, 1306, 1307, 1312-19,
and 1321.6, require all employer-members of Re-
spondent Associations to cease doing business with
dump truck owner-operators who do not become
union members and employee-drivers subject to all
14 Associated General Contractors of California Inc.. et al., 220 NLRB
540 (1975).
'5 Associated General Contractors of California, Inc. v. N.L.R.B. 564
F.2d 271 (1978).
'6 Associated General Contractors of California. Inc., et al., 239 NLRB
No. 100 (1978).
7 See, e.g., Granero-Datsun A Graneto Company, 220 NLRB 399
(1975); International Longshoremen's and Warehousemen's Union, et al.
(California Cartage Company, Inc.), 215 NLRB 541, 542 (1974); Local
Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO
(New York Telephone Company), 197 NLRB 866, 867-868 (1972).
JOINT COUNCIL OF TEAMSTERS NO. 42 815
terms of the MLA. Such provisions, applied to in-
dividuals whom we have found to be independent
contractors, are secondary on their face.18 They
are designed to serve the general institutional inter-
ests of Respondent Unions in organization rather
than any specific legitimate interests of bargaining
unit employees in unit work preservation. '9
The critical inquiry with respect to the applica-
bility of the construction industry proviso to article
XIII concerns whether that article covers only
"work to be done at the site of the construction,
alteration, painting, or repair of a building, struc-
ture, or other work." All parties agree that article
XIII, on its face and in practice, applies to trans-
portation work performed by dump truck owner-
operators off the geographical site of construction.
The General Counsel and CDTOA contend that
such coverage per se exceeds the jobsite limitation,
as it has been defined in legislative history and
Board precedent. Respondent Unions argue, how-
ever, that offsite work should be considered jobsite
work within the meaning of the proviso if it in-
volves only the transportation of materials between
a contractor's geographical site of construction and
a remote dumping or supply site established up to
10 miles away by the contractor for exclusive use
in connection with work at the geographical site of
construction. They further contend that article
XIII applies only to the owner-operators' jobsite
work, as so defined.2 0
The legislative history of Section 8(e) and its
construction industry proviso is sparse in references
to the precise definition of jobsite work intended
by Congress. In this regard, the House Conference
report stated only that:
I 8 Local 814. International Brotherhood of Teamsters Chauffeurs Ware-
housemen and Helpers of America (Santini Brothers Inc), 208 NLRB 184,
198-200 (1974); Newspaper & Periodical Drivers' & Helpers Local 921, In-
ternational Brotherhood of Teamsters Chauffeurs Warehousemen & Helpers
of America (San Francisco Newspaper Printing Co.. Inc.), 204 NLRB 440
(1973); Highway Truck Drivers and Helpers Local 107. International Broth-
erhood of Teamsters. Chauffeurs. Warehousemen and Helpers of America et
al. (S d E McCormick Inc.), 199 NLRB 531 (1972); Milk Wagon Drivers
and Creamery Workers Local Union No. 66 of Seattle, Washington and Vi-
cinity International Brotherhood of Teamsters Chauffeurs. Warehousemen
and Helpers of America (Carnation Company), 181 NLRB 882, 886 (1970);
General Teamsters. Chauffeurs. Warehousemen and Helpers. Local 982 In-
ternational Brotherhood of Teamsters; Chauffeurs Warehousemen and Help-
ers of America; et al. (J K. Baker Trucking Ca), 181 NLRB 515, 520-521
(1970); and see A. Duie Pyle, Inc. v. N.LR.B., 383 F.2d 772 (3d Cir.
1967).
19 We note that none of Respondents have even argued in their briefs
that the owner-operator provisions have a valid work preservation pur-
pose if the dump truck owner-operators are in fact independent contrac-
tors.
20 Respondent Associations admit that art. XIII is not limited to jobsite
work within the meaning of the Act. They urge the Board to articulate a
"majority time" jobsite definition which would apply to all transportation
work by the owner-operators herein if a majority of each day's working
time is spent at the geographical site of construction and/or at a contrac-
tor-controlled remote site where the contractor's own employees are also
working.
It should be particularly noted that the proviso
relates only and exclusively to the contracting
or subcontracting of work to be done at the
site of the construction. The proviso does not
exempt from Section 8(e) agreements relating
to supplies and materials or other products
shipped or otherwise transported to, and deliv-
ered, on the site of construction.21
In addition, the legislative history more generally
suggests that a primary motivation for the enact-
ment of the proviso was the desire to prevent po-
tential labor strife between union and nonunion
personnel working at the same jobsite. 2 2
Interpreting legislative intent from the foregoing,
the Board has consistently adhered to a narrow
definition of jobsite work when evaluating contrac-
tual provisions on a case-by-case basis. It has found
that the proviso clearly does not extend to offsite
work merely because such work could be done at
the site of construction. 2 3 Furthermore, the Board
has refused in several cases to apply the proviso's
coverage to various types of transportation work
wherein deliveries have been made directly on the
geographical site of construction. In particular, the
Board has found that none of the following consti-
tutes jobsite work: the mixing, delivery, and pour-
ing of ready-mix concrete;2 4 the delivery of pre-
cast concrete pipe;25 the "bringing of tools, materi-
als, and personnel to and from the site of construc-
tion;"2 6 and the delivery of sand landfill. 2 7
We must evaluate the work coverage provisions
of MLA article XIII, contained in paragraph 1321
and subparagraphs thereto, in light of the foregoing
legislative history and percedent. Without the limi-
tations on coverage stated in subparagraph
1321.1.1, the remainder of paragraph 1321 would
on its face apply the secondary provisions of article
XIII to non-jobsite work. Specifically, the owner-
operator provisions would without subparagraph
21 H. Conf. Rept 1147, 86th Cong., st sess., p. 39; Leg. Hist 943. See
also the legislative history set forth in Ohio Valley Carpenters District
Council, United Brotherhood of Carpenters and Joiners of America. AFL-
CIO (Cardinal Industries Inc.), 136 NLRB 977, 988-989 (1962).
22 See, e.g., the discussion of legislative history in International Union
of Operating Engineers Local Union No. 12, AFL-CIO (Robert E. Fulton),
220 NLRB 530, 536 (1975).
s2 Ohio Valley Carpenters District Council (Cardinal Industries). supra at
988.
24 International Brotherhood of Teamsters Chauffeurs Warehousemen
and Helpers of America. Local 294 (Island Dock Lumber. Inc.), 145 NLRB
484 (1963); Teamsters Local Union No. 559, a/w International Brotherhood
of Teamsters Chauffeurs. Warehousemen and Helpers of America (Connecti-
cut Sand and Stone Corporation), 138 NLRB 532 (1962).
25 Joint Council of Teamsters No. 42, et al. (Inland Concrete Enterprises,
Inc.), 225 NLRB 209 (1976).
a2 Local Union No. 282, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America (D.
Fortunato, Inc.), 197 NLRB 673 (1972).
a7 Local 294, International Brotherhood of Teamsters. Chauffeurs, Ware-
housemen & Helpers of America (Clemence D. Stanton, d/b/a Rexford
Sand and Gravel Co.), 195 NLRB 378 (1972).
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1321.1.1 cover the offsite transportation of all mate-
rials between a geographical site of construction
and any remote location within an area expanding
from 5 to 10 miles away from the site during the
life of the MLA. Article XIII would then not be
entitled to protection under the construction indus-
try proviso, because it would clearly apply to the
various types of transportation work defined as off-
site work by the Board in the cases cited in the
preceding paragraph.
Subparagraph 1321.1.1, however, states that arti-
cle XIII does not apply to the "delivery of materi-
als to or from commercial suppliers or public
dumps."2 8 As indicated in the preceding section of
this Decision, the parties have inexplicably failed in
the complaint, stipulation of facts, and briefs to
refer to the express terms of subparagraph 1321.1.1.
Respondent Unions nevertheless implicitly rely
upon the limiting language of this subparagraph by
admitting in their brief that neither the delivery of
materials from a remote commercial source to the
geographical site of construction nor the cartage of
materials away from the geographic site to a
remote commercial dumping site constitutes jobsite
work within the meaning of the Act and the MLA.
We agree, and find that subparagraph 1.321.1.1 on
its face so limits article XIII as to exclude from its
coverage such offsite construction work. 2 9
Notwithstanding the limitation expressed in sub-
paragraph 1321.1.1, we find that paragraph 1321 in
its entirety clearly extends the coverage of article
XIII to nonjobsite work. Paragraph 1321 does not,
in fact, conform to the jobsite definition advocated
by Respondent Unions, because it does not restrict
article XIII to the transportation of materials be-
tween a contractor's geographical site of construc-
tion and a remote location controlled by the same
contractor for use in connection with work at the
geographical site of construction. On the contrary,
article XIII undisputedly covers dump truck
owner-operators who are engaged in the transpor-
"2 Subparagraph 1321.11 also states that "(alny other general exclu-
sions from the construction industry proviso, previously defined by the
NLRB or the courts, shall continue to be applicable in interpreting Arti-
cle X1II." We give no weight to this language. An explicit, self-con-
tained, and clearly illegal contractual provision, such as the secondary
owner-operator provision herein, will not be purged of its illegality by a
vague and general "savings clause." See The Essex CoLnty and Vicinity
District Council of Carpenters and Millwrights, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO (Associated Cor tractors of Essex
County, Inc.), 141 NLRB 858, 869 (1963); Perry Coal Company, Midwest-
Radiant Corporation, and Peabody Coal Company, 125 NLRB 1256 (1956)
29 Although it is unnecessary to refer to extrinsic evidence for inter-
pretation of an unambiguous contractual provision, we note that our view
of the restrictive import of subparagraph 1321.1.1 is supported by the af-
fidavit of George A. Pappy, submitted by Respondent Unions during the
injunction proceeding before the district court. On the other hand, other
witness affidavits submitted in that proceeding indicate that Respondent
Unions have ignored the subparagraph's limitations in their efforts to en-
force art. XIl.
tation of materials between different contractors'
geographical sites of construction. Such hauls may
include the transportation of materials to or from,
as well as the loading or dumping of materials on,
a jobsite controlled by a nonunion contractor. The
Board has twice refused to broaden the jobsite
definition under the construction industry proviso
to permit application of a contract's secondary pro-
visions to work performed for a subcontractor at a
remote location established exclusively or partially
to service a contractor's geographical site of con-
struction.3 0 If remote locations not controlled by
the contractor for a geographical site of construc-
tion cannot be viewed as extensions of the contrac-
tor's jobsite, and we reaffirm that they cannot
whether or not they are themselves actual con-
struction sites, then the transportation of materials
between such sites is no different than the transpor-
tation of materials between a geographical site of
construction and a remote commercial supply or
dumping location. As previously stated, the Board
has consistently held that such work is not jobsite
work.
Even if we were to accept the premise that arti-
cle XIII covers only the transportation of materials
between sites up to 10 miles apart but controlled
by the same contractor, we would find such cover-
age to be overly broad. Based on the parties' esti-
mates of average times involved, article XIII
would apply to an owner-operator who in the
course of a 10-mile roundtrip haul spends an aver-
age of 10 minutes combined at the geographical
site of construction and the remote location and an
average of 50 minutes in offsite travel. The primary
purpose of the construction industry proviso-to
avoid tensions among groups of employees at the
same site-has little relevance to persons having
such incidental contact with the site. The legisla-
tive history of the proviso demonstrates that Con-
gress shared this conclusion by expressing its spe-
cific intent to exempt from the proviso the total
process of transporting materials in spite of the fact
that some tasks in that process might take place on
a construction jobsite.3 1 Consistent with this intent,
the Board has repeatedly held that the proviso
does not apply to jobsite deliveries (or, by logical
inference, pickups) which are only a small part of
basically offsite transportation activity. In the pre-
sent case, we perceive no justification for departing
from this well-established precedent merely be-
30 Operating Engineers, Local Union No. 12 (Robert E. Fulton), supra,'
International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers & Helpers (Bigge Drayage CompanyL, 197 NLRB 281 (1972).
31 Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union No.
631, International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America (Reynolds Electrical and Engineering Co., Inc.), 154
NLRB 67, 95 (1965).
-----
JOINT COUNCIL OF TEAMSTERS NO. 42 817
cause the transportation activity takes place be-
tween and involves brief work on two sites con-
trolled by the same construction contractor.32 The
secondary owner-operator provisions of article
XIII clearly extend to predominately offsite trans-
portation work performed by dump truck owner-
operators. We find that such work is not jobsite
work within the meaning of the construction indus-
try proviso.33
For the foregoing reasons, we find that the sec-
ondary provisions of article XIII are not entitled to
protection under the construction proviso. Accord-
ingly, we find that those provisions violate Section
8(e) of the Act.
2. The alleged 8(b)(4)(ii)(A) violation
Uncontroverted record evidence conclusively
demonstrates that Respondent Local 420, through
its business agent, Charles Tanberg, threatened a
self-employed dump truck owner-operator, Len-
delle Kinder, with loss of a job at the Alhambra,
California, jobsite of construction contractor Irvine
unless Kinder would become a member of Local
420. The evidence further shows that Respondent
Local 420, through Tanberg, coercively insisted
that Irvine cease doing business with independent
contractors who were not and would not become
members of Local 420. Based on such evidence, we
find that Respondent Local 420 has threatened, co-
erced, and restrained Irvine and the independent
contractors of Irvine with an object of forcing or
requiring the independent contractors to join a
labor organization, in clear violation of Section
8(b)(4)(ii)(A) of the Act.
THE REMEDY
Having found that Respondents have engaged in
unfair labor practices, we shall order them to cease
and desist therefrom and to take certain affirmative
action to effectuate the purposes of the Act.3 4
32 We reject Respondent Unions' argument that the definition of job-
site work in the proviso to Sec. 8(e) should be identical to the definition
of jobsite work in the Davis-Bacon Act. That Act, as a remedial statute,
is broader in coverage than the 8(e) proviso. International Union of Oper-
ating Engineers, Local Union No. 12 (Acco Construction Equipment, Inc.),
204 NLRB 742 (1973); Drivers. Salesmen. Warehousemen. Milk Processors,
Cannery. Dairy Employees and Helpers. Local Union No. 695 a/w Interna-
tional Brotherhood of Teamsters. Chauffeurs. Warehousemen and Helpers of
America v . N.L.R.B., 361 F.2d 547, 553 (D.C. Cir 1966).
33 We leave open the question whether, if ever, the definition of job-
site work under the proviso may include the brief and incidental trans-
portation of materials between two proximate, but not physically contig-
uous geographical, sites of construction, each of which is exclusively
controlled by the same contractor.
34 We hereby deny the Charging Party CDTOA's request that we re-
quire Respondent Unions to reimburse any owner-operators for payment
of initiation fees and dues. deducted contributions to union benefit funds,
or income lost by reason of the enforcement of unlawful terms in MLA
art. XIII. The Hoard has on one occasion adopted without comment an
administrative law judge's recommended Order containing such a
remedy Local 814, leamsters (Santini Brothers. Inc.) supra at 201. In the
Upon the basis of the foregoing findings of fact,
and upon the entire record in this proceeding, we
make the following:
CONCLUSIONS OF LAW
1. The employer-members of Associated General
Contractors of California, Inc., Building Industry
Association of California, Inc., Engineering Con-
tractors Association, Inc., and Southern California
Contractors Association are employers engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The following organizations are labor organi-
zations within the meaning of Section 2(5) of the
Act: Joint Council of Teamsters No. 42, and its af-
filiated Local Unions, Sales Drivers & Dairy Em-
ployees, Local 166; General Truck Drivers, Local
235; General Truck Drivers, Chauffeurs & Helpers,
Local 692; Chauffeurs, Teamsters and Helpers,
Local 186; Building Material and Dump Truck
Drivers, Local 420; General Teamsters, Chauffeurs,
Warehousemen & Helpers, Local 982; Truck-
drivers, Warehousemen and Helpers, Local 898;
Teamsters & Warehousemen, Local 381; all affili-
ated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America; and Teamsters, Chauffeurs, Warehouse-
men and Helpers, Local 87, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America.
3. By threatening, coercing, and restraining per-
sons engaged in commerce, including Irvine-Santa
Fe Company and the independent contractors of
Irvine, with an object of forcing or requiring the
independent contractors of Irvine to join a labor
organization, Building Material and Dump Truck
Drivers, Local 420, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, has engaged in unfair labor practices
in violation of Section 8(b)(4)(ii)(A) of the Act.
4. By entering into, maintaining, and giving
effect to the aforementioned paragraphs in article
XIII of the Master Labor Agreement between Re-
spondent Associations and Respondent Unions, Re-
spondents have engaged in unfair labor practices in
violation of Section 8(e) of the Act.
present case, however, no evidence has been introduced with respect to
alleged losses directly attributable to actual coercion by Respondent
Unions, nor has the remedial issue been expressly litigated Furthermore,
we find a reimbursement order, typically used to "make whole" emplov-
ees for violations of the Act, to be generally overly broad and inappropri-
ate in the context of 8(e) iolations We note that aggrieved owner-sopera-
tors engaged in business as independent contractors may pursue a damage
claim under Sec. 303 of the Act. For the foregoing reasons, we find that
the reimbursement of owner-operators requested by CDTOA would not
effectuate the remedial policies of the Act See Local 60. U.'ntted Brother-
hood of Carpenters and Joiners of America. AFIL-C'IO. ct a N L. R. B..
365 U.S 651 (1961)
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The above unfair labor practices are unfair
labor practices affecting commerce and the free
flow of 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 Re-
lations Board hereby orders that:
A. Respondent Building Material and Dump
Truck Drivers, Local 420, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, its officers, agents, and repre-
sentatives, shall:
1. Cease and desist from threatening, coercing,
and restraining Irvine-Santa Fe Company or the in-
dependent contractor dump truck owner-operators
of Irvine with an object of forcing or requiring the
owner-operators to join a labor organization.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix
A."3 S Copies of said notice, on forms provided by
the Regional Director for Region 21, after being
duly signed by Respondent's representative, shall
be posted by said 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 customarily
posted. Reasonable steps shall be taken by the
Union to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Sign and mail to said Regional Director suffi-
cient copies of the aforementioned notice for post-
ing at the premises of Irvine-Santa Fe Company, if
willing.
(c) Notify the Regional Director for Region 21,
in writing, within 20 days from the date of this
Order, what steps the Respondent Local 420 has
taken to comply herewith.
B. Respondents Joint Council of Teamsters No.
42, and its affiliated Local Unions, Sales Drivers &
Dairy Employees, Local 166; General Truck Driv-
ers, Local 235; General Truck Drivers, Chauffeurs
& Helpers, Lcoal 692; Chauffeurs, Teeamsters and
Helpers, Local 186; Building Material and Dump
Truck Drivers, Local 420; General Teamsters,
Chauffeurs, Warehousemen & Helpers, Local 982;
Truckdrivers, Warehousemen and Helpers, Local
898; Teamsters & Warehousemen, Local 381; all af-
filiated with the International Brotherhood of
"a 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 Pursu-
ant to a Judgment of the United States Court of Apptals Enforcing an
Order of the National Labor Relations Board "
Teamsters, Chauffeurs, Warehousemen and Helpers
of America; and Teamsters, Chauffeurs, Warehou-
semen and Helpers, Local 87, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, their officers, agents, and
representatives, shall:
1. Cease and desist from entering into, maintain-
ing, giving effect to, or enforcing the provisions of
article XIII in their 1977-80 Master Labor Agree-
ment with Associated General Contractors of Cali-
fornia, Inc., Building Industry Association of Cali-
fornia, Inc., Engineering Contractors Association,
Inc., and Southern California Contractors Associ-
ation, to the extent found unlawful herein.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at their business offices and meeting
halls copies of the attached notice marked "Appen-
dix B."3 6 Copies of said notice, on forms provided
by the Regional Director for Region 21, after
being duly signed by Respondents' representative,
shall be posted by said Unions immediately upon
receipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken
by the Unions to insure that said notices are not al-
tered, defaced, or covered by any other material.
(b) Sign and mail to said Regional Director suffi-
cient copies of the aforementioned notice for post-
ing at the premises of Associated General Contrac-
tors of California, Inc., Building Industry Associ-
ation of California, Inc., Engineering Contractors
Association, Inc., and Southern California Contrac-
tors Association, and their employer-members, if
willing.
(c) Notify the Regional Director for Region 21,
in writing, within 20 days from the date of this
Order, what steps Respondents have taken to
comply herewith.
C. Respondents Associated General Contractors
of California, Inc., Building Industry Association of
California, Inc., Engineering Contractors Associ-
ation, Inc., and Southern California Contractors
Association, and their employer-members, their of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from entering into, maintain-
ing, giving effect to, or enforcing the provisions of
article XIII in their 1977-80 Master Labor Agree-
ment with the Respondent Unions, to the extent
found unlawful herein.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
3" See fn. 35, supra.
JOINT COUNCIL OF TEAMSTERS NO. 42 819
(a) Post at their places of business copies of the
attached notice marked "Appendix C."3 7 Copies of
said notice, on forms provided by the Regional Di-
rector for Region 21, after being duly signed by
representatives of the Respondent Associations,
shall be posted by the Associations and their em-
ployer-members 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 be taken by the As-
sociation and their employer-members to insure
that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director for Region 21,
in writing, within 20 days from the date of this
Order, what steps the Respondent Associations
have taken to comply herewith.
a See fn. 35, supra.
APPENDIX A
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten, coerce, or restrain
Irvine-Santa Fe Company or the independent
contractor dump truck owner-operators of
Irvine-Santa Fe Company with an object of
forcing or requiring the owner-operators to
join a labor organization.
BUILDING MATERIAL AND DUMP
TRUCK DRIVERS, LOCAL 420, INTER-
NATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA
APPENDIX B
NOTICE To EMPLOYEES AND MEMBER
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT enter into, maintain, give
effect to, or enforce the owner-opertor provi-
sions of article XIII in our 1977-80 Master
Labor Agreement with Associated General
Contractors of California, Inc., Building Indus-
try Association of California, Inc., Engineering
Contractors Association, Inc., and Southern
California Contractors Association, and thier
employer-members, to the extent that such
provisions violate Section 8(e) of the National
Labor Relations Act, as amended.
JOINT COUNCIL OF TEAMSTERS No.
42, AND ITS AFFILIATED LOCAL
UNIONS, SALES DRIVERS & DAIRY
EMPLOYEES, LOCAL 166; GENERAL
TRUCK DRIVERS, LOCAL 235; GEN-
ERAL TRUCK DRIVERS, CHAUFFEURS,
& HELPERS, LOCAL 692; CHAUF-
FEURS, TEAMSTERS AND HELPERS,
LOCAL 186; BUILDING MATERIAL
AND DUMP TRUCK DRIVERS, LOCAL
420; GENERAL TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN & HELPERS,
LOCAL 982; TRUCKDRIVERS, WARE-
HOUSEMEN AND HELPERS, LOCAL
898; TEAMSTERS & WAREHOUSEMEN,
LOCAL 381; ALL AFFILIATED WITH
THE INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMER-
ICA
TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS, LOCAL 87,
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMER-
ICA
APPENDIX C
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, give
effect to, or enforce the owner-operator provi-
sions of article XIII in our 1977-80 Master
Labor Agreement with Joint Council of Team-
sters No. 42 and its affiliated Local Unions, all
affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, and also with Teamsters,
Chauffeurs, Warehousemen and Helpers, Local
87, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, to the extent that such provisions
violate Section 8(e) of the National Labor Re-
lations Act, as amended.
ASSOCIATED GENERAL CONTRAC-
TORS OF CALIFORNIA, INC.
BUILDING INDUSTRY ASSOCIATION OF
CALIFORNIA, INC.
ENGINEERING CONTRACTORS ASSOCI-
ATION, INC.
SOUTHERN CALIFORNIA CONTRAC-
TORS ASSOCIATION