Joint Council of Teamsters No. 42

National Labor Relations Board - Board Decisions

Jun 28, 1974

212 N.L.R.B. 320 (N.L.R.B. 1974)

320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joint Council of Teamsters No. 42, International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America and Merle Riphagen
Joint Council of Teamsters No. 42 , International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America and Merle Riphagen
and Associated General Contractors of California,
Inc.; Building Industry Association of California,
Inc.; and Engineering and Grading Contractors As-
sociation, Inc., Parties to the Contract . Case 21-
CC-1424 and 21-CE-122
June 28, 1974
DECISION AND ORDER
On May 31, 1973, Administrative Law Judge Louis
S. Penfield issued the attached Decision in this pro-
ceeding. -Thereafter, the General Counsel filed excep-
tions and a supporting brief, and Respondent filed an
answering brief.
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
conclusions, as modified herein, of the Administrative
Law Judge and to adopt his recommended Order.
We agree with the Administrative Law Judge, but
for different reasons, that the Respondent Union did
not violate Section 8(e) and 8(b)(4)(ii)(A) and (B) of
the Act by entering into and enforcing agreements
with various employer associations and individual
contractors whereby the general contractors obligated
themselves to be financially responsible for the delin-
quencies of their subcontractors in the event the latter
failed to make contractually required payments to the
Union's trust funds.
As noted by the Administrative Law Judge, the
alleged unlawful clauses in the instant case are sub-
stantially similar, if not identical, to those considered
by the Board in General Teamsters, Chauffeurs, Ware-
housemen and Helpers, Local 982, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Associated Independent Owner-Op-
erators, Inc.), 181 NLRB 515. There the Board held
that, in the absence of sufficient extrinsic evidence
as to the manner in which the union enforced such
clauses, the Board would make no determination as
to the legality of the clauses or the union's conduct in
relation thereto. The General Counsel has produced
evidence in this case that the Union exerted pressure
against La Mirada Trucking Company, a member of
the Engineering Contractors Association, to assume
financial responsibility for the delinquencies of Merle
Riphagen, its subcontractor. The facts with respect to
the operations of La Mirada; its president, Charles W.
Poss; and C. W. Poss, Inc., a sister corporation, of
which Poss is also president, were sparsely litigated.
The record reveals that La Mirada is a "broker" for
small independent truckers, such as Riphagen, and
that the latter's several trucks with drivers are em-
ployed by La Mirada on an hourly basis to haul dirt
for various contractors in the Los Angeles basin area.
La Mirada does not own any trucks or employ any
employees. It operates merely as an intermediary be-
tween contractors needing trucks and drivers and
owners of trucks who need employment. There is
some evidence that Poss or a supervisory employee of
C. W. Poss, Inc., supervises the loading of Riphagen's
trucks at the borrow pit from which the dirt is to be
hauled and occasionally visits the jobsites where the
dirt is deposited. Riphagen testified that a "foreman"
of La Mirada or C. W. Poss, Inc., had the demand
slips at the borrow pit to keep a record of the time the
trucks were loaded and reloaded. La Mirada operates
a dispatch system to direct and control the operation
of Riphagen's trucks when employed by La Mirada.
To establish a violation of the secondary boycott
provisions of the Act the burden was on the General
Counsel to prove by a preponderance of the evidence
that Respondent Union restrained or coerced a sec-
ondary or neutral person to cease doing business with
another independent person. This record, in our opin-
ion, is insufficient to warrant the conclusion that La
Mirada, Poss, or C. W. Poss, Inc., was a neutral or
uninvolved person with respect to the operations of
Merle Riphagen. The evidence suggests rather that
Poss and his corporations were engaged in a joint
business venture with Riphagen, to the extent the lat-
ter was utilized by Poss, to supply trucks and drivers
for the hauling of dirt where such services were re-
quired by other contractors.
Accordingly, without passing upon the Administra-
tive Law Judge's different rationale, we shall dismiss
the complaint in its entirety.
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
Order of the Administrative Law Judge and hereby
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
MEMBER JENKINS, concurring:
I concur with Members Fanning and Penello in
dismissing the 8(b)(4)(ii)(A) and (B) and 8(e) allega-
tions in these cases on the grounds that the fringe
benefit provisions constitute permissible work stan-
dards clauses. Contrary to them, however, for the rea-
sons set forth in my dissent in Raymond O. Lewis
(Arthur J. Galligan), 148 NLRB 249, and my concur-
212 NLRB No. 5
JOINT COUNCIL OF TEAMSTERS NO. 42 321
rence in International Union of Operating Engineers,
Local Union No. 12 (Griffith Company), 212 NLRB
No. 4, I would adopt the Administrative Law Judge's
determination that in this case , with respect to the
fringe benefit fund clauses, the principal work unit is
comprised of all employees employed by association
members and individual signatories to the master
agreement in the classifications provided in the con-
tract.
CHAIRMAN MILLER and MEMBER KENNEDY, dissenting:
The reader of this Decision will better appreciate
our dissent in this case if we first set forth a descrip-
tion of the posture in which the majority's gossamer
opinion would leave this case . We do not agree with
the majority that La Mirada was not a neutral person
within the meaning of Section 8 (b)(4)(ii)(A) and (B)
and Section 8(e) of the Act . Unlike them , therefore,
we must pass on the Administrative Law Judge's dif-
ferent rationale for dismissing the complaint.
Our consideration and rejection of both the ma-
jority's and the Administrative Law Judge 's ration-
ale are explicated below . Moreover, the fringe bene-
fit provisions of the contract which the Respondent
Union applied to La Mirada here are, for all material
purposes, identical to those similarly invoked by the
charged union in our companion decision , issued to-
day, in International Union of Operating Engineers,
Local Union No. 12 (Griffith Company), 212 NLRB
No. 4.1 For the purpose of decisional economy, and
because this case sheds additional light on the object
In Griffith the contract language in issue is the following-
Article I, Paragraph B-15. The Trustees of the Trust Funds, through
their Administrator, shall furnish each Contractors Association and the
Union , with a list of delinquent Contractors each month . The Contrac-
tor agrees that he will not subcontract any portion of his job to any
Contractor whose name appears on the delinquent list until such Con-
tractor has paid all delinquent monies to the various Trust Funds
(a) Any disputes between the parties concerning the payment or non-
payment of monies due the Trust Fund are not subject to Article V
[Procedure for Settlement of Grievances and Disputes] of the Agree-
ment
16. In the event the Contractor subcontracts to any such delinquent
Subcontractor, in violation of the foregoing , the Contractor shall be
liable to the Trustees for all accrued delinquencies of the Subcontractor
and shall withhold sufficient funds from monies due or to become due
such Subcontractor and shall pay the sums over to the Trust Funds. If
a Subcontractor becomes delinquent after commencing work for the
Contractor, the Contractor shall be liable for all delinquencies incurred
on the job after ten (10) days following the date of the delinquency list
on which the Subcontractor's name first appeared The Contractor shall
terminate the contract of the Subcontractor who fails to properly correct
his delinquency.
(a) Where the Contractor fails or refuses to make payments required
under the above provisions , the Union shall have the right to withhold
services from any or all jobs of such Contractor.
In the instant case the contested language is the following
102A.2 The 10th calendar day after such notice is sent by the admin-
istrative office , the general contractor shall become financially responsi-
ble for all delinquent fringe benefit payments that accrued on his job
after the ten-calendar -day-notice period for payments owed by any
subcontractor. The contractor may terminate the subcontractor of said
delinquent subcontractor , or subcontractors, thereby limiting his liabili-
ty, on that job, to the period from the 11th day after such notice is sent
of such clauses, we have integrated our dissent in the
Griffith case into our opinion here.
Contrary to the majority, we find that the Respon-
dent Union has entered into and applied the fringe
benefit provisions of the contract to La Mirada in
violation of Section 8(b)(4)(ii)(A) and (B) and Section
8(e) of the Act.2 For the reasons set forth below, we
firmly believe that the Board's decisions here and in
Griffith come dangerously close to eradicating the sec-
ondary boycott proscriptions of the Act.
The fallacy of the Administrative Law Judge's basis
for dismissal of the complaint here in Riphagen, with
by the administrative office to the termination of such contract on that
job.
102.4 3 Where a contractor contracts with a listed delinquent subcon-
tractor, or subcontractors , the contractor may terminate the subcontract
of such delinquent subcontractor , or subcontractors, thereby limiting
the contractors liability, on that job, to the period from the commence-
ment of the work under the subcontract to the date of termination of
that subcontract
102.4.4 The union may give written notice to a listed delinquent
contractor, or subcontractor, (with a copy to the general contractor) to
pay the delinquent amount due all trust funds . Within five days from
the giving of such notice , the union shall withhold service from any or
all jobs of such delinquent contractors, or subcontractors, if proper
payment is not made
102 4 5 Where the general contractor fails or refuses to make pay-
ments required under the above provisions, the union shall have the right
to withhold service from any or all jobs of such general contractor
2 Three issues which the Administrative Law Judge and, of course, the
majority find it unnecessary to pass on are (a) whether the demand for
$11,000 supported by the Union's contractual right was coercion proscribed
by Sec. 8(b)(4), (b) whether the administrator is an agent of the Union
thereby inculpating the latter for its coercive conduct ; and (c) whether the
8(e) jobsite proviso has any application to this case.
First, there would seem little room for doubt that the $11,000 demand was
coercive . These interrelated fringe benefit clauses of the master agreement
not only authorize the imposition of monetary liability, but also sanction a
union strike to enforce that liability Poss , owner of La Mirada, was cogni-
zant that La Mirada would be struck if he failed either to pay or cancel
Riphagen 's contract Realistically , La Mirada had no alternative but to cease
doing business with Riphagen . We find that the administrator's demand on
La Mirada constituted an unlawful coercive threat proscribed by Sec.
8(b)(4)(ii)(B). Ets-Hokin Corporation, 154 NLRB 839, enfd 4Q5 F.2d 159
(C A. 9, 1968), cert. denied 395 U.S. 921 (1969). See also Member Kennedy's
dissenting opinions in Southern California Pipe Trades District Council No. 16
of the United Association (Associated General Contractors of California, Inc.),
207 NLRB No. 58, and Southern California Pipe Trades District Council No
16 (Kimstock Division, Tridair Industries, Inc), 207 NLRB No. 59.
Chairman Miller , who did not join Member Kennedy's dissent in the
California cases cited in the preceding sentence, nevertheless believes the
circumstances of this case to be quite different. Assessing an employer with
an amount of delinquency liability over which he has had no control, is, in
the Chairman 's view, quite different from the above cases in which the parties
had agreed upon a fair means of determining reasonable compensation for
a breach of agreement which was within the parties' control.
Secondly, the trust fund administrator is clearly an agent of Respondent
Union The administrator is hired by the board of trustees of the respective
funds Those boards are composed of an equal number of employer and
union appointees who serve at the absolute pleasure of the appointing au-
thorities . The power of the funds, through the administrator , to impose and
demand payment of delinquent contributions is delineated in the master
agreement itself, along with the Union's right to strike for failure to comply
with the demand Board precedent clearly holds that the trustuees, and their
administrators, are agents of the employer associations and the Respondent
Union. J. J. Hagerty, Inc, 139 NLRB 633, 637.
Finally, the jobsite proviso to Sec. 8 (e) is inapplicable here. The Board has
previously held that these identical contract provisions are unlawful self-help
clauses proscribed by Ets-Hokin, supra General Teamsters, Chauffeurs, Ware-
housemen and Helpers, Local 982, IBT (Associated Independent Owner-Opera-
tors, Inc ), 181 NLRB 515
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which Member Jenkins agrees, needs only brief analy-
sis. The Administrative Law Judge concluded that the
principal work unit here is comprised of all employees
who work for association members or individual
"Short Form" signatories to the master agreement.
However, there is no evidence that the short-form
employers have ever bargained in the multiemployer
unit . Lacking that history, the short-form employers'
adoption of the association-negotiated Master Agree-
ment does not suffice to include them in the mul-
tiemployer unit,' and does not establish an industry-
wide bargaining unit .4 Indeed, on this point
Members Fanning and Penello are in complete
agreement, as evidenced by their opinion in Griffith.
Clear Board precedent establishes that La Mirada
(the coerced contractor) and Merle Riphagen (the
primary party) are not part of the same bargaining
unit, industrywide or otherwise, but rather comprise
separate bargaining and work units.
Hence the basic issue, both here and in Griffith, is
whether La Mirada and the offended contractors in
Griffith are secondary persons to the Unions' dispute
with their subcontractors. The Supreme Court's oft-
quoted statement of the principles determinative of
whether activity is "secondary," set forth in National
Woodwork,' holds union conduct to be secondary
where: I
. . . the tactical object of the agreement and its
maintenance is [the boycotted] employer, or
benefits to other than the boycotting employees
or other employees of the primary employer
thus making the agreement or boycott second-
ary in its aim. The touchstone is whether the
agreement or its maintenance is addressed to the
labor relations of the contracting employer vis-a-
vis his own employees.6
As the Supreme Court also said in this case, Section
8(e) and Section 8(b)(4)(A) were enacted by Congress
primarily to close the loopholes in Section 8(b)(4)(B)
(formerly 8(b)(4)(A) ), and were not intended to alter
the previously determined definition of secondary
boycott set forth in prior decisions of the Supreme
Court. One such decision, together with subsequent
Board decisions concerning the same species of con-
tractual arrangements in issue here, requires a con-
clusion that La Mirada and the offended contractors
in Griffith are secondary parties. That case is
3 Moveable Partitions , Inc, 175 NLRB 915 See also International Photog-
raphers of the Motion Picture industries, Local 659 of the international AIh-
once of Theatrical Stage Employees and Moving Picture Machine Operators of
the United States and Canada (MPO-TV of California, Inc Y-A Produc-
tions, Inc), 197 NLRB No 134, enfd 477 F.2d 450 (C A D C, 1973), cert.
denied 414 U S 1157 (Jan 21, 1974)
4 Raymond 0 Lewis, et al (Arthur J Galligan), 148 NLRB 249
5 National Woodwork Manufacturers Association v N L.R B, 386 U S 612
(1967)
6 Ibid. at 645.
N.L.R B. v. Denver Building and Construction Trades
Council, 341 U.S. 675 (1951), wherein the Supreme
Court faced a situation where a general contractor
for the construction of a commercial building award-
ed a subcontract for electrical work to a nonunion
employer. The union picketed the entire job and
thereby effectively forced the general contractor to
terminate the electrical's contract. The Court expli-
cated two principles material to the case at hand. The
first was that the union could attain its ultimate pur-
pose only by forcing the general contractor to termi-
nate its contract with the electrical subcontractor.
Therefore, it was scarcely open to question that an
object of the strike, if not the only one, was to force
the general contractor to cease doing business with
the electrical contractor, and therefore the strike vio-
lated Section 8(b)(4)(A).7 Secondly, the Court explic-
itly held:
We agree with the Board also in its conclusion
that the fact that the contractor and subcontrac-
tor were engaged on the same construction pro-
ject, and that the contractor had some
supervision over the subcontractor's work, did
not eliminate the status of each as an indepen-
dent contractor or make the employees of one the
employees of the other. The business relationship
between independent contractors is too well estab-
lished in the law to be overridden without clear
language doing so.8 [Emphasis supplied.]
Having proceeded this far, something should be
said about the majority's "joint business venture"
opinion in Riphagen herein. Even conceding them
their reading of the record,9 they have failed utterly to
supply any legally sufficient nexus in logic or philoso-
phy between their statement on the one hand that La
Mirada and Riphagen were engaged in a "joint busi-
ness venture," and their statement that "this record
. .. is insufficient to warrant the conclusion that La
Mirada . . . was a neutral or uninvolved person with
respect to the operations of Merle Riphagen." This is
an inartful exercise in semantics. We recall no case,
nor does the majority cite one, where the offended
7 Now Sec. 8(b)(4)(B ) Thus, Sec 8(b)(4)(A) was violated where an object
of the union's conduct was to force a cessation of business, despite the fact
that the ultimate purpose of the unions was to have union working standards
observed on the project Bangor Building Trades Council, A FL-CIO (Davison
Construction Company, Inc), 123 NLRB 484, enfd, 278 F 2d 287 (CA I.
1960)
8 Denver Building Trades, supra, 689-690 The Court reaffirmed this princi-
ple in N L R B v Local 825 , International Union of Operating Engineers,
AFL-CIO, 400 U S 297 (1971)
9 A concession which we do not make La Mirada operates by first con-
tracting with either ajobsite contractor who needs fill, or by contracting with
a "borrow pit" owner who has sold his fill and needs to have it transported
Riphagen has no part of this facet of the business And, on the other hand,
La Mirada has no control over Riphagen's trucks or his employees
We also fail to see what C W Poss, Inc , has to do with this case, since
it was neither named in the complaint nor shown to have been involved in
the events herein
JOINT COUNCIL OF TEAMSTERS NO. 42 323
person was not in some way "involved" with the "op-
erations" of the primary person whether it was by
virtue of the sale of a product, or by ownership of the
construction site, or by purchase of services, particu-
larly by subcontract. Indeed, the majority's analysis
would hold that the general contractor and its electri-
cal subcontractor in Denver Building Trades were "in-
volved" in the "operations" of each other, that they
were therefore a "joint business venture," 10 and that
the Supreme Court necessarily erred in holding the
general contractor to nevertheless be a neutral and
unoffending person vis-a-vis the labor relations of the
electrical subcontractor" But the Supreme Court has
already ruled that the facts that the contractor and
subcontractor are engaged on the same construction pro-
ject, and that the contractor had some supervision over
the subcontractor's work, do not eliminate the status of
each as an independent contractor or make the em-
ployees of one of the employees of the other, Denver
Building Trades, supra.
During the years since enactment of Section
8(b)(4)(A), the Board has followed these principles in
cases too numerous to warrant citation, 12 and particu-
larly with respect to the maintenance of agreements
just such as are in issue here. In Calhoun Drywall,13the
general contractor was a party to a collective-bargain-
ing agreement containing guarantee fringe benefit
clauses which the Board found in Barker 14 (wherein
the Board previously considered on a per se basis the
type of clauses presented here) to be essentially identi-
cal to the clauses contested here. In Calhoun, the gen-
eral contractor (Oberman) subcontracted drywall
work to a nonunion contractor (Calhoun) whereupon
the union enforced the fringe benefit guarantee provi-
sions against the general contractor. The union con-
tended, as Respondent Union does here, that the
10The majority fails to say what they intend by the phrase "joint business
venture " To the extent that they construe it to mean that La Mirada and
Riphagen are to some degree engaged in the same enterprise, then they also
must include the "borrow pit" owner, the construction site owner and his
general construction contractor, and presumably the State of California or
its subdivisions which built the highways used by Riphagen's trucks.
" The majority does not contend that La Mirada and Riphagen are not
independent contractors The complaint alleges , and the answer admits, that
La Mirada (as a number of EGCA) and Riphagen each is , and has been at
all times material herein, a person engaged in commerce within the meaning
of Sec. 8(b)(4),(u)(A) and (B) and Sec. 8(e) of the Act.
Clearly the General Counsel has met his burden of proving that La Mirada
is a-prima facie neutral and unoffendmg person vis -a-vis the employees and
labor relations of Riphagen In Griffith, the majority finds that prima facie
showing rebutted , a matter dealt with later herein.
Furthermore, the analysis of the majority does not deal with at least half
or more of the delinquencies the Union seeks to exact from La Mirada, since
even in 1972 Riphagen performed no more than 50 percent of his work for
La Mirada
12 See , e g , Metal Polishers, Buffers, Platers and Helpers International Union,
A F. of L, 86 NLRB 1243
13Orange Belt District Council of Painters No 48, AFL-CIO (Calhoun Dry-
wall Company), 153 NLRB 1196, enfd. 365 F.2d 540 (C A.D.C., 1966).
14 General Teamsters, Chauffeurs, Warehousemen and Helpers, Local 982,
IBT (Associated Independent Owner-Operators , Inc), 181 NLRB 515
clauses were work standards provisions and therefore
primary. The Board rejected this defense, finding that
the union's conduct was unlawfully aimed at aiding
union members generally. Moreover, the Board said,
since the nonunion subcontractor had no employees
subject to the collective-bargaining agreement, the
fringe benefit funds could not have used the general
contractor's payments on behalf of the subcontractor
to benefit the latter's employees, and such payments
would have been a penalty imposed on the general
contractor for failing to subcontract to a union sub-
contractor. The Board stated:
It is therefore apparent that if the Respondent's
conduct were to be held lawful, it would have to
be on the theory that it was designed to protect
wages and job opportunities of Oberman's em-
ployees, represented by the Respondent Painters,
who were engaged in work similar to that done
by Calhoun; i.e., drywall construction work.
These employees would constitute the "principal
work unit." But Oberman employed no painters
or tapers or any other employees engaged in dry-
wall construction work on this project: and at no
time did Oberman have a contract with the Re-
spondent Painters.15
Furthermore, in-Los Angeles Building & Construc-
tion Trades Council, et al. (Portofino Marina), 150
NLRB 1590, the Board found that the respondent
unions were engaged in a primary labor dispute with
the subcontractor over the latter's alleged delinquent
welfare payments, and that by picketing the general
contractor, rather than the subcontractor, the unions
violated the Moore Dry Dock 16 standards and thereby
violated Section 8(b)(4)(i) and (ii)(B) of the Act. The
necessary predicate for the Board's conclusion was
that the general contractor was not a primary party to
the dispute, and the unions were illegally, forcing the
general contractor to remedy the subcontractor's de-
linquency. And recently, in Local 272, International
Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO (Miller & Solomon Construction
Corp.), 195 NLRB 1063, the Board found unlawful
picketing of a general contractor, who had no con-
tract with the picketing union, with an object of forc-
ing the general contractor to make good a defaulting
subcontractor's debt ($26.26) to the union' s pension
and welfare funds. The Board held that the general
contractor was a neutral party, not otherwise con-
cerned with the dispute between the union and the
defaulting subcontractor.
Turning now to the case at hand, we find that La
Mirada, the prime contractor, and Riphagen, the sub-
11 153 NLRB at 1201.
16 Sailors' Union of the Pacific, AFL (Moore Dry Dock Company ), 92 NLRB
547.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contractor, ' are independent contractors and were
doing business within the meaning of the Act.'7 Ri-
phagen is merely a "Short Form" signatory to the
Master Agreement and, by virtue of established
Board law, each constitutes a separate and distinct
bargaining and work unit.'8 It is clear that an object
of the Union's conduct here was to force La Mirada
to cease doing business with Riphagen, inasmuch as
that is the action required, and indeed realistically
expected, of La Mirada as the only alternative to La
Mirada's payment of the $11,000 delinquency alleg-
edly due from Riphagen.'9 On this basis it is apparent
that a violation of the secondary boycott sections of
our Act has been made out, unless it can be shown
that La Mirada's employees' interest in preserving
their work or work standards is directly affected by
Riphagen's fringe benefit payment delinquencies.
Such is the Respondent's defense here, which relies
essentially for legal support on the rationale of Dixie
Mining Company, 188 NLRB 753. The majority also
relies on Dixie Mining (although they do not cite it
specifically), as did the Administrative Law Judge, for
their decision dismissing the complaint in Griffith. We
disagree on two grounds.
The first, which in our view disposes of the instant
case concerning Riphagen, is that Dixie Mining has no
applicability to the instant case for the simple, but
controlling, fact that La Mirada retains no employees
subject to the Master Agreement performing any
work covered by its fringe benefit clauses.
The Board recognized this distinction as controlling
long ago in Local 47, International Brotherhood of
Teamster, Chauffeurs, Warehousemen and Helpers of
America, AFL, et al. (Texas Industries, Inc.), 112
NLRB 923, enfd. 234 F.2d 296 (C.A. 5, 1956). There
the Board held that the coerced general contractors
clearly were secondaries to the unions' wage dispute
with the subcontractors, since the former had only
one part-time employee each represented by the
unions, as to whom the general contractors had
agreed to the wage demands. Rather, the Board held,
the unions' concern was with the wages of the subcon-
tractors, and therefore the dispute was not over the
conditions of employment of the general contractors'
employees or the subcontracting of those employees'
jobs, and thus the general contractors were secondary
persons. Thus the instant case stands on the same
footing as Miller and Solomon and Calhoun Drywall
where the pressured employers clearly had no interest
in or control over the work sought to be preserved and
maintained by the union's conduct. The mere fact
that La Mirada has signed a short-form adoption of
17 Denver Building Trades, supra
19 Moveable Partitions, Inc, supra, Calhoun Dry Wall, supra
19
Denver Building Trades, supra
the master agreement in this case is of no importance,
since without employees in the covered work classifi-
cations that agreement is essentially lifeless. The lack
of employees subject to the Respondent Union'sjuris-
diction clearly eliminates any legitimate interest Re-
spondent Union might have as to who La Mirada
does business with, since, as in Calhoun, the only prin-
cipal work unit for which the Union could have an
interest in maintaining work standards demonstrably
does not exist. Under controlling precedent, La Mira-
da is a neutral independent contractor which has no
interest in and no right of control over the labor rela-
tions between the Respondent and Riphagen. Denver
Building Trades supra; George Koch Sons, Inc., 201
NLRB No. 7.
Secondly, assuming arguendo that La Mirada em-
ployed employees who were covered by La Mirada's
contract with the Respondent Union, and thus war-
ranted consideration on the same plane as the pres-
sured contractors in the accompanying Griffith case,
our view is that the Dixie Mining decision is clearly
distinguishable. In the present cases, the Unions have
applied these fringe benefit guarantee clauses in order
to reach jobsites, employers, and work units, so dis-
tant in time, distance, and contractual relationship
from the pressured contractors, that the Unions' ap-
plication of the contract to them embroils the contrac-
tors in labor disputes unknown to them, and so far
removed from them that the contract cannot be con-
strued as protecting the work preservation interest of
the coerced contractors' employees.
In Griffith the Administrative Law Judge conclud-
ed that these contract provisions serve the primary
purpose of preserving unit work standards by discour-
aging subcontracting to persons who supposedly per-
form covered work more cheaply by virtue of their
reduced labor cost 20 resultant from failure to pay
fringe benefit contributions.21 This, the Administra-
tive Law Judge reasoned, was the rationale of Dixie
Mining.
In Dixie Mining,22 however, the Board was con-
fronted with the application of a labor contract which
required that each signatory employer which pur-
chased nonunion coal pay 80 cents per ton into the
union welfare fund on coal which the normal 40-cent-
per-ton royalty rate had not been paid. The Board
20 There does not appear to be any evidence, either here or in Griffith, that
this is in fact so
21 Contrary to the Administrative Law Judge, we see no relevance in the
fact that the prime contractors may recoup their payments from their subcon-
tractors The issue here is whether the Union may lawfully coerce the prune
contractors into making these payments in the first instance.
22 Chairman Miller dissented in Dixie Mining in any event, and Member
Kennedy would not apply the Dixie Mining reasoning beyond the facts of
that case. Member Kennedy joined the majority decision in Dixie Mining
only because he viewed the conclusions reached 'in that case warranted on
the facts adduced under the limited scope of the record. Member Kennedy
would limit that decision to the peculiar facts of that case.
JOINT COUNCIL OF TEAMSTERS NO. 42 325
found that the evidence established that wage, fringe,
and working standards of employees in nonsignatory
mines were generally lower than those established in
the National Bituminous Wage Agreement and that
the 80-cent payment to which signatories were obli-
gated on nonsignatory coal purchases bore a reason-
able relationship to the wage and fringe benefits
differential between signatory and nonsignatory oper-
ators. Accordingly, the Board held that the purpose of
the 80-cent clause was to remove the economic incen-
tive a signatory might have to buy coal produced by
substandard labor.
The distinction between Dixie Mining and the pre-
sent cases is manifest. In Dixie Mining the signatory
coal operator was required to make the 80-cent pay-
ment only on the coal which it purchased from a coal
producer using substandard labor, but in the instant
cases the object of the Unions' conduct is not merely
to require the prime contractors to make equalizing
payments with respect to the work which they them-
selves subcontract and which might affect the work
standards of their own employees, but they are also in
the Unions' view responsible for the delinquent con-
tributions which their subcontractors became respon-
sible for while working for other persons, at other
times, at other jobsites, as to all of which the prime
contractors involved here may have had and probably
did have no connection whatsoever, on behalf of em-
ployees not employed in the work unit for which the
prime contractors here are responsible 23 The jobs on
which the subcontractors may have defaulted on the
fringe benefit obligations may and probably do no
longer exist, and quite likely involved other prime
contractors more directly responsible with whom the
pressured contractors here may never have had any
contact, or who may no longer even be in business.
Thus, in the instant case , Riphagen had been re-
ceiving subhauling work form La Mirada since 1968.
In 1972 only approximately 50 percent of the subhaul-
ing work which Riphagen performed was given him
by La Mirada. The Union' s claim that Riphagen was
$11,000 in arrears on his payments to the fringe bene-
fit funds is not confined to whatever delinquencies
Riphagen might have incurred while doing business
with La Mirada. La Mirada was never informed of
v This inquiry is the type which the Supreme Court ruled was necessary
in National Woodwork . There the Court enunciated the principle that whether
the contract and its enforcement violated Sec. 8(e) and 8(b)(4)(B)
. cannot be made without an inquiry into whether, under all the
surrounding circumstances,38the Union's objective was preservation of
work. . or whether the agreements and boycott were tactically calcu-
lated to satisfy union objectives elsewhere
38 As a general proposition , such circumstances might include the
remoteness of the threat of displacement by the banned product or
services, the history of labor relations between the union and the em-
ployers who would be boycotted and the economic personality of the
industry . See Comment, 62 Mich. L. Rev. 1176, 1185 et seq ( 1964).
precisely what the $11,000 amount represented. Obvi-
ously assuming a state of facts most favorable to Re-
spondent, no more than half of the $11,000 could have
accrued while Riphagen was working for La Mirada,
if the delinquencies all occurred only during 1972. It
is quite clear from a reading of the fringe benefit
guarantee clauses in dispute herein, moreover, that
that is precisely the intent of the clauses-to reach
and impose liability for all delinquencies upon who-
ever may currently be doing business with the delin-
quent contractor. The scope of these clauses is
immeasurably broader than those in Dixie Mining,
where the coal mine operator had only to answer for
the impact on his employees of his own subcontract-
ing, and did not have to underwrite the harm caused
to other work units by the contractual relationships
between other persons over whom he had absolutely
no control. But here, and in Griffith, the Union is in
substantial part enmeshing prime contractors in an-
cient labor disputes of other employers as to work
units with which they have no connection, at jobsites
which may or may not still be in existence and with
which the pressured contractors may or may not have
had a connection, and with respect to delinquencies
which may be or may not have been legitimately as-
sessed.
In their Griffith opinion, the majority discloses their
concern for the integrity of the trust funds, which they
would protect for the benefit of the "interests of em-
ployees of all employers." But only employees of sig-
natory employers participate in those benefits, and we
cannot imagine any clearer proof that the Unions are
seeking to aid union members generally across unit
lines. As the majority concedes, the Unions are sepa-
rating the benefits from the bargaining units, and are
requiring from the employers in each and every bar-
gaining unit an indemnity for union members' bene-
fits no matter where or for whom they work-an in-
demnity not tied to the maintenance of standards of
the bargaining unit, but rather covering the entire
industry to the extent of its union organization.
One other aspect of the majority's opinion in Grif-
fith which causes us grave concern is the notion that
employers and unions may do away with the second-
ary boycott provisions of the Act by private consen-
sus. Section 8(e) prohibits the entering into of any
contract whereby the employer agrees to cease doing
business with any other person. Voluntarism is com-
pletely immaterial.''{ In this regard the majority mis-
u Member Kennedy pointed this out in his dissents in the Southern Califor-
nia Pipe Trades cases, supra. Chairman Miller, while not viewing the facts in
those California Pipe cases as establishing an agreement to cease doing busi-
ness but rather as an agreement to resolve disputes as to legitimate damages
for breach of agreement , agrees with Member Kennedy here (as pointed out
in fn. 2, supra) In his view , the agreements here would create a liability for
an amount of money wholly beyond the employer's control unless he ceased
to do business with another entity, and thus are tantamount to agreements
to cease doing business
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reads the Supreme Court's National Woodwork
opinion, supra. The part of the opinion referenced by
the majority lies within the Court's discussion, at
pages 638-642, of whether work preservation agree-
ments were intended to be proscribed by Congress
under Section 8(e). But, earlier in its opinion, at pages
633-634, the Court clearly stated that Section 8(e) was
enacted to close the loophole in the existing legislation
whereby secondary boycott agreements themselves
were not then unlawful under the Act. We quote:
The Landrum-Griffin Act amendments in
1959 were adopted only to close various loop-
holes in the application of § 8(b)(4)(A) which had
been exposed in Board and court decisions. We
discussed some of these loopholes, and the par-
ticular amendments adopted to close them, in
Labor Board v. Servette, Inc., 377 U.S. 46, 51-54.
We need not repeat that discussion here, except
to emphasize, as we there said, that "these
changes did not expand the type of conduct
which § 8(b)(4)(A) condemned, that is, union
pressures calculated to induce the employees of
a secondary employer to withhold their services
in order to force their employer to cease dealing
with the primary employer." Id., at 52-53.
Section 8(e) simply closed still another loop-
hole. In Local 1976, United Brotherhood of Car-
penters v. Labor Board (Sand Door), 357 U.S. 93,
the Court held that it was no defense to an unfair
labor practice charge under § 8(b)(4)(A) that the
struck employer had agreed, in a contract with
the union, not to handle nonunion material.
However, the Court emphasized that the mere
execution of such a contract provision (known as
a "hot cargo" clause because of its prevalence in
Teamsters Union contracts), or its voluntary ob-
servance by the employer, was not unlawful un-
der § 8(b)(4)(A). Section 8(e) was designed to plug
this gap in the legislation by making the "hot car-
go" clause itself unlawful. The Sand Door decision
was believed by Congress not only to create the
possibility of damage actions against employers
for breaches of "hot cargo" clauses, but also to
create a situation in which such clauses might be
employed to exert subtle pressures upon employers
to engage in "voluntary" boycotts. Hearings in late
1958 before the Senate Select Committee ex-
plored seven cases of "hot cargo" clauses in
Teamsters Union contracts, the use of which the
Committee found conscripted neutral employers
in Teamsters organizational campaigns. [Fns.
omitted.][Emphasis supplied.]
As we have said, then, the issue is whether the claus-
es are to preserve work of unit employees, or whether
the clauses reach neutral persons and are therefore
secondary and unlawful. Since each type of contract
is the product of an "agreement," logical analysis of
this difference is aided not one whit by the volun-
tariness of the boycott, since by Section 8(e) Congress
specifically interdicted secondary boycott agreements
It is the majority's semantics, not ours, which inject
the irrelevancy. We acknowledge that the literal lan-
guage of Section 8(e) does not provide for the work
preservation exception which the Supreme Court held
to be encompassed by Section 8(e). While in National
Woodwork the Court upheld the legality of the agree-
ment, it did so because the union had a primary dis-
pute with its own employer over preserving its
members' traditional work tasks which the employer
in effect had contracted out. But the Court did not
base its holding in any part on the employer's signa-
ture to the agreement.
We have expressed ourselves at length in this opin-
ion in setting forth our analysis of why the particular
provisions in issue in these cases are not directly relat-
ed to the employees of these neutral contractors. We
find that such agreements, however "voluntary," are
directly violative of the law Congress passed, as it has
been interpreted by the decisions of the highest court
in the land. Congress has the power to alter the clear
language of the statute and of the decisions of the
Supreme Court, but until it does so, the majority deci-
sions in both this case and in Griffith leave the Board
floundering in the "Bramble Bush."
For the reasons set forth above, we find that the
labor disputes caused by the fringe benefit delinquen-
cies are too remote to the coerced contractors here
and in Griffith, and that the impact of those disputes
on the work units of the threatened contractors is
oblique and does not make these pressured contrac-
tors primary persons to the disputes. We conclude
that La Mirada and the pressured contractors in Grif-
fith are in fact unoffending secondary persons within
the meaning of Denver Building Trades, supra, and we
would hold that the Respondent Unions have entered
into and applied the contract provisions here and in
Griffith, in violation of Section 8(b)(4)(n)(A) and (B),
and Section 8(e) of the Act.
DECISION
STATEMENT OF THE CASE
Louis S. PENFIELD, Administrative Law Judge: This con-
solidated proceeding was heard before me in Los Angeles,
California, on February 8, 1973, with all parties repre-
sented.' The complaint is based on charges and amended
charges filed in each case on September 29, 1972, and De-
1 Representatives of the three associations who were parties to the contract
were duly notified of the proceeding but did not put in appearances or file
briefs
JOINT COUNCIL OF TEAMSTERS NO. 42 327
cember 15, 1972, respectively, by Merle Riphagen, an indi-
vidual. The consolidated complaint issued on December 20,
1972, and alleges that Joint Council of Teamsters No. 42,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called Respon-
dent Union, engaged in unfair labor practices in violation
of Section 8(e) and Sections 8(b)(4)(ii)(A) and (B) of the
Act. All parties were given full opportunity to participate in
the hearing and after the close thereof Respondent Union
and the General Counsel filed briefs.
Upon the entire record in this consolidated proceeding
and upon my observation of the witnesses and their de-
meanor, I make the following:
construction industry proviso of Section 8(e). Respondent
Union's demand, made through its alleged agents Construc-
tion Teamsters Security Trust and Construction Teamsters
Vacation Holiday Trust, herein collectively called the Trust
Funds, that La Mirada, as a condition of continuing to
subcontract dirt hauling to Riphagen, pay the trust funds
the amount of Riphagen's delinquency is further alleged to
be violative of Section 8(b)(4)(ii)(A) and (B) of the Act.
Respondent Union claims the contract provisions in ques-
tion to be primary in nature and aimed only at protecting
work standards of employees in the principal work unit, and
thus both the contract provisions and any efforts to invoke
and enforce them to be lawful. The facts are not in dispute
and the issue before us is one of law.
FINDINGS OF FACT
1. JURISDICTION
Merle Riphagen is an individual doing business in South-
ern California as a sole proprietor of a dirt hauling business.
La Mirada Trucking, Inc., herein called La Mirada, is a dirt
hauling contractor in Southern California serving the build-
ing and construction industry. On frequent occasions to be
described more particularly below La Mirada subcontract-
ed dirt hauling to Riphagen.
Associated General Contractors of California, Inc., here-
in called AGC, Building Industry Association of California,
Inc., herein called BIA, and Engineering and Grading Con-
tractors Association, Inc., herein called EGCA, are each
employer associations which exist for, and engage in, collec-
tive bargaining, and negotiate collective-bargaining agree-
ments on behalf of their employer-members with various
labor organizations including Respondent Union. La Mira-
da is an employer-member of EGCA. The employer-mem-
bers of AGC, BIA, and EGCA on whose behalf the
associations have executed a multiemployer multiassocia-
tion collective-bargaining agreement are engaged in busi-
ness as contractors in the building and construction
industry in Southern California. Riphagen, also in business
in the same industry, is an individual party signatory to the
same agreement. In the aggregate the employers annually
purchase and receive supplies valued in excess of $50,000
which come to them directly from suppliers located outside
the State of California. I find the employer-members of the
associations, La Mirada and Riphagen collectively to be
engaged in businesses affecting commerce within the mean-
ing of the Act, and assertion of jurisdiction to be appropri-
ate.
II THE LABOR ORGANIZATION INVOLVED
Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
The conduct alleged as violative of the Act relates to
certain provisions of Respondent Union's contract with the
employer associations. These clauses are alleged to beper se
violative of Section 8(e) of the Act because their impact is
claimed to be secondary in nature and not protected by the
A. The Multiassociation Labor Agreement
This agreement is entitled Master Labor Agreement Be-
tween Southern California General Contractors and Re-
spondent Union. It will be referred to herein as the master
agreement. The master agreement was executed on Decem-
ber 10, 1971, to remain in effect until June 15, 1974. The
contractor members of the various associations are engaged
in construction work in Southern California. The master
agreement purports to cover persons working for these con-
tractors either on jobsites or in shops or yards. Its coverage
includes a wide variety of classifications of persons engaged
in driving and repairing trucks. This equipment in some
instances will operate exclusively off the highway, while in
others it will operate both on and off the highway. The
master agreement contains detailed provisions covering
wages, hours, and working conditions, as well as grievance
and other clauses frequently found in collective-bargaining
agreements. It also provides covered workers with various
fringe benefits including a health and welfare plan, paid
vacations, and pensions. Since in the construction industry
workers normally move from one contractor to another as
jobs start and finish, there must be means to insure proper
credit for such earned fringe benefits. This is accomplished
by requiring that each covered employer pay designated
sums for each hour a worker is employed into trust funds
established and administered jointly by Respondent Union
and the contracting associations. The administrators of the
trust funds are required to credit the individual employees
appropriately and to disburse the earned benefits pursuant
to contract terms. The master agreement requires each cov-
ered employer to pay the sums due on behalf of each of his
employees to the trust funds on a regular monthly basis. The
trust funds report delinquencies in such payments to Re-
spondent Union and the association, and'are authorized to
institute legal steps against delinquent employers. In addi-
tion to moving directly against a delinquent employer the
master agreement also provides that contractors may be-
come liable, for delinquencies of their subcontractors who
are also covered by the master agreement. It is these clauses
that the General Counsel attacks, and they read in full as
follows:
102.4.2 The 10th calendar day after such notice is
sent by the administrative office, the general contractor
shall become financially responsible for all delinquent
fringe benefit payments that accrued on his job after
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the ten-calendar-day-notice period for payments owed
by any subcontractor. The contractor may terminate
the subcontract of said delinquent subcontractor, or
subcontractors, thereby limiting his liability, on that
job, to the period from the 11th day after such notice
is sent by the administrative office to the termination
of such contract on that job.
102.4.3 Where a contractor contracts with a listed
delinquent subcontractor, or subcontractors, the con-
tractor may terminate the subcontract of such delin-
quent subcontractor, or subcontractors, thereby
limiting the contractors liability, on that job, to the
period from the commencement of the work under the
subcontract to the date of termination of that subcon-
tract.
102.4.4 The union may give written notice to a listed
delinquent contractor, or subcontractor, (with a copy
to the general contractor) to pay the delinquent
amount due all trust funds. Within five days from the
giving of such notice, the union shall withhold service
from any or all jobs of such delinquent contractor, or
subcontractor, if proper payment is not made.
102.4.5 Where the general contractor fails or refuses
to make payments required under the above provisions,
the union shall have the right to withhold service from
any or all jobs of such general contractor.
By such clauses the prime or general contractor in effect
becomes a guarantor for his delinquent subcontractor al-
though he can limit his liability by removing him from the
job. The clauses are obviously designed both to put pressure
on the delinquent subcontractor to remedy his own delin-
quency in order to avoid losing thejob, and to safeguard the
employees and the integrity of the fund by insuring that if
he cannot or will not pay up another responsible party will
pay the trust funds the amounts due. The General Counsel
argues that these clauses have a secondary thrust because
their effect is either to penalize the prime contractor or
make him "cease doing business" with the subcontractor
with whom Respondent Union has the primary dispute.
All members of the three associations are of course bound
by the provisions of the master agreement. In addition to
these association members, however, other persons engaged
in like construction industry work may become parties to
the master agreement by signing what is known as the short
form agreement. This is in substantial measure a paraphrase
of the master agreement itself. The signatory employer rec-
ognizes Respondent Union as the statutory representative
of his employees, and agrees to be bound by the terms of
the master agreement including the obligation to make the
required reports and payments for the fringe benefits to the
trust funds. As indicated above Merle Riphagen is a party
signatory to the short form agreement.
While the master agreement refers to the trust funds and
contains the provisions relating to the handling of delin-
quencies , the Construction Teamsters Security Trust and
Construction Teamsters Vacation Holiday Trust are each
set up by separately executed agreements signed by Respon-
dent Union and the associations. Each fund is controlled by
a board of trustees comprised of equal numbers of associa-
tion and union representatives. The individual trustees are
appointed by the association and union representatives re-
spectively. Each trustee serves until death, resignation, or
removal. Removal may be effected by the appointing power
at any time, and for any reason whatsoever. Day to day
operation of the trust funds is conducted by a trust fund
administrator. It is incumbent on the administrator to de-
termine when delinquencies occur, and to initiate steps to
obtain the sums due if at all possible. A delinquency first
becomes known when the employer's report and contribu-
tion is not received. The administrator, however, has no way
of knowing the prime contractors for whom a delinquent
subcontractor may have been working He is dependent on
receiving, and usually obtains, such information from union
or employer sources. When the administrator receives infor-
mation regarding the identity of the prime contractor it is
the regular practice to send such prime contractor a form
notice advising him of the delinquency of his subcontractor.
This notice is tailored to the above-quoted provisions of the
master agreement, and undertakes to alert the prime con-
tractor to the fact that he may become liable for the delin-
quency if he continues to use the services of the delinquent
subcontractor. All delinquent payments whether made by
the primary contractor owing the obligation, or by the guar-
antor contractor are received into the fund and credited to
the particular covered employees entitled to the benefits
B. The Controversy Giving Rise to the Instant Case
Merle Riphagen owns and operates three sets of bottom
dump trailer tractor units. He operates one himself and
employs two drivers. Riphagen functions in the Los Angeles
area construction industry as a dirt fill subhauler. He ob-
tains his work through the use of individuals or firms known
as brokers. La Mirada operates as such a broker. The busi-
ness of a broker is to supply trucks to excavating or other
contractors to meet their hauling needs. These trucks are
supplied by the broker to the contractor on a per hour basis.
Some brokers, including La Mirada, own no trucks at all
and meet the needs of the contractors by dispatching sub-
haulers like Riphagen. The subhauler will most frequently
be sent by the broker to what is known as a borrow pit which
may be defined as a source of dirt. His truck will be filled
under the direction of a contractor operating the excavating
and loading equipment there, and he will be directed to
drive it to ajobsite. On occasions excavations will occur at
one jobsite and the subhauler will take the dirt from that
jobsite to another where fill is needed. Riphagen testified
that in his own case his average haul over the highways from
source tojobsite would be from 7 to 8 miles. When subhau-
lers arrive at a jobsite the load is dumped pursuant to the
instructions of a contractor job foreman there. The dump-
ing process consists in releasing the bottom trap of the
trailer and leaving the jobsite without even stopping the
truck. When one load has been delivered the truck then goes
back to the source for another.
Riphagen had been using La Mirada as a source of sub-
hauling jobs since 1968. In 1972 approximately 50 percent
of the subhauling work which Riphagen obtained came to
him through La Mirada. As noted above La Mirada func-
tions exclusively as a broker, owning no trucks and using
only subhaulers to supply the hauling needs of the contrac-
tors with whom it does business As we have seen La Mirada
JOINT COUNCIL OF TEAMSTERS NO. 42 329
is a member of EGCA and bound by the terms of the master
agreement . La Mirada is wholly owned by Charles W. Poss.
In addition to operating as a broker under the name of La
Mirada, Poss also is in business as a grading and excavating
contractor . In such capacity he may furnish loading equip-
ment to borrow pits or other sources . In this capacity Poss
sometimes calls upon La Mirada to supply trucks for haul-
ing purposes.
The administrator of the trust funds at some point, not
precisely fixed in the record, became aware that Riphagen
was delinquent in his trustfund payments . Steps were taken
to collect from Riphagen including the initiation of legal
proceedings against Riphagen directly. In addition to this,
however, in a manner not disclosed by the record , the ad-
ministrator of the trust funds also learned that La Mirada
was a prime contractor for whom Riphagen was doing su-
bhauling. At this point following the usual practice the ad-
ministrator sent a form letter to Riphagen dated September
5, 1972 , which reads in full as follows:
Please take notice that Merle Riphagen, who is signato-
ry to a collective bargaining agreement with the Team-
sters Joint Council No. 42 , is a delinquent contractor
(or subcontractor) who has failed to pay fringe benefit
contributions to the Construction Teamsters Security
Trust and Construction Teamsters Vacation Holiday
trust as required by the aforesaid labor agreement.
Under your labor agreement, if you use or continue to
use the services of the aforesaid contractor you will be
liable for all accrued delinquent contributions as well
as any unpaid future fringe benefit contributions. If the
aforesaid contractor has commenced work on your
jobsite prior to receipt of this notice , and if his name
has not previously appeared on the delinquency list
furnished by the trust funds administrator to you or
your association then you will be liable for all future
unpaid fringe benefit contributions arising 10 days
from the receipt of this notice ; otherwise your liability
will depend on the date of the last delinquency list and
the date you first used the contractor.
The amount of unpaid fringe benefit contributions
known to be due from the aforesaid contractor to the
Trust Funds is: approximately $ 11,000.
On September 6 when Riphagen called the La Mirada
dispatcher he was told of the letter and that until the delin-
quency was cleared up he could no longer use Riphagen's
trucks. Since that time Riphagen has done no work for La
Mirada.
C. Discussion of the Issues and Conclusions
We now come to the question as to whether or not upon
the undisputed facts set forth above the General Counsel
has established as a matter of law that Respondent has
engaged in unlawful conduct within the meaning of Section
8(e) and Section 8(b)(4)(ii)(A) and (B) of the Act . The Gen-
eral Counsel contends that these facts signify the thrust of
the clauses and their attempted enforcement to be second-
ary in;nature and thus violative of the Act . Respondent
Union contends the clauses to be primary and designed to
protect and maintain union standards , and thus any "cease
doing business" effect resulting therefrom to be purely inci-
dental . Respondent Union also contends that it has no re-
sponsibility for the 8(b)(4) aspects of the case because this
conduct was undertaken by the trust funds as separate enti-
ties and not as agents of Respondent Union.
A determination of the secondary or primary nature of
the disputed contract provisions within the meaning of Sec-
tion 8(e) will in substantial measure resolve all other issues.
The General Counsel points out that historically Section
8(b)(4), the so-called secondary boycott provision of the
statute , was designed to limit the scope of disputes between
management and labor . Thus certain conduct of a union
could be directed lawfully only against an employer with
whom it had a primary dispute , and its efforts to enmesh
other employers not directly involved in this primary dis-
pute were proscribed . As interpreted by the Board and the
courts the 1947 amendments , however , were found to have
a somewhat limited application . Thus while the Board could
enjoin certain union conduct directly leveled against the
secondary as distinguished from the primary employer, the
secondary employer was not protected where there existed
a contractual provision between the contracting union and
the primary employer requiring that the latter do no busi-
ness with employers who did not meet certain union stan-
dards or sign certain union agreements . It was to outlaw
such so-called "hot cargo" clauses in contracts that Con-
gress in 1959 enacted the provisions of Section 8(e). This
section in pertinent part reads as follows:
(e) It shall be an unfair labor practice for any labor
organization and any employer to enter into any con-
tract or agreement, express or implied, 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 be to such
extent unenforceable and void : Provided , That nothing
in this subsection (e) shall apply to an agreement be-
tween 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 build-
ing, structure , or other work... .
The literal language of the section would appear to pros-
cribe all contracts whereby an employer agrees to "cease
doing business with any other person ." It developed , howev-
er, that such literal construction was viewed as inconsistent
with the legislative history, and that agreements, even
though they result in some measure of "cease doing busi-
ness," will be permitted where their essential thrust is prima-
ry rather than secondary. Thus it has been held that an
employer may lawfully agree to refrain from contracting out
any bargaining unit work because the primary purpose of
such a clause would be viewed as protecting unit work, even
though such an agreement would have the incidental effect
of requiring the employer to cease doing business with other
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employers .' On the other hand , however , clauses in an
agreement designed to blacklist specified employers, or
classes of employers , because their products or labor poli-
cies are objectionable to the contracting union are regarded
as principally directed at limiting or disrupting business
relationships with others, rather than conferring direct ben-
efits and protecting unit employees , and hence they are
deemed to be unlawful.
As specific clauses came up for scrutiny within the gener-
al criteria , various distinctions were spelled out. Thus cases
have drawn a basic distinction between so-called "work
preservation" and "work acquisition" clauses, and between
so-called "union standards" and "union signatory " clauses.
Where the basic objective of the clause appears as protec-
tion and preservation of the work of the contracting union,
or as protection of the wages and working conditions of the
unit employees by limiting subcontracting to employers
maintaining similar standards , the clauses will be regarded
as lawful .4 On the other hand , if the principal objective of
the clause is to seek work for unit employees which has been
customarily performed by employees of other employers, or
if the clause is aimed at requiring an employer to do busi-
ness solely with other employers who are signatory to the
union contract , then its thrust is deemed to be secondary
and aimed at limiting the number of employers with whom
an employer can do business , or at disrupting existing busi-
ness relationships , and is deemed unlawful .5 The distinc-
tions are expressed with particular clarity in Orange Belt
District Council No . 48 v. N. L.R.B., 328 F . 2d 534 (C.A.D.
C.). In that case the court stated:
The test as to the "primary" nature of a subcontractor
clause in an agreement with a general contractor has
been phrased by scholars as whether it "will directly
benefit the employees covered thereby ," and "seeks to
protect the wages andjob opportunities of the employ-
ees covered by the contract ." We have phrased the test
as whether the clauses are "germane to the economic
integrity of the principal work unit," and seek "to pro-
tect and preserve the work and standards (the union)
has bargained for," or instead "extend beyond the
(contracting) employer and are aimed really at the
union 's difference with another employer."
We must look to the challenged clauses in the instant case
in the light of the foregoing rationale to determine their
primary or secondary character.
The Board has previously considered numerous clauses in
Z Service and Maintenance Employees Union, Local No 399, AFL-CIO,
(Kal-Efron, d/b/a Superior Souvenir Book Company), 148 NLRB 1033, Ohio
Valley Carpenters District Council (Cardinal industries inc,), 136 NLRB 977;
Milk Drivers Union, Local 753 (Pure Milk Association), 141 NLRB 1237
J District 9 iAM [Greater St Louis Automotive Trimmers & Upholsterers
Assn J v NLRB , 351 F.2d 33 (C A D C, 1962), N L R B v Joint Council
of Teamsters No 38 [California Assn of Employers], 338 F 2d 23 (C A 9,
1964)
Meat and Highway Drivers Local 710 (Wilson and Co), v N L R B, 335
F 2d 709 (C A D C , 1964), Truck Drivers Local 413 [Brown Transfer Port and
Patton Warehouse Inc] v N L R B. 334 F 2d 539, (C A D C, 1964), Orange
Belt District Council of Painters No 48 [Calhoun Drywall Co I v N L R B,
328 F 2d 534, (C A D C, 1964)
5 N L R B v Joint Council of Teamsters No 38 [Arden Farms Co J, 338 F 2d
23 (C A 9, 1964), Meat and Highway Drivers Local No 710 v N L R B, supra,
Truck Drivers Local 413 v N L R B, supra
the construction industry multiemployer contract that was
a predecessor to the one now before US .6 Among the clauses
before the Board in the previous case were some which
appear to have been similar, if not identical, to those now
under challenge in the instant case. In Barker Trucking the
Board held there to be insufficient evidence for it to find the
then existing fringe benefit delinquency clauses per se un-
lawful, and in the absence of extrinsic evidence indicating
the manner in which such clauses had been enforced it
made no finding as to their legality. The General Counsel
argues that we have before us now sufficient extrinsic evi-
dence concerning Respondent Union's efforts to enforce
such clauses to establish the object thereof to be secondary
and unlawful. It is pointed out that Respondent Union's
primary dispute was with Riphagen over unpaid fringe ben-
efits. It is asserted that the provisions of these contract
clauses have the effect of enmeshing La Mirada, a neutral
prime contractor, by making it a guarantor for Riphagen's
liability as the penalty for its continuing to do business with
Riphagen. This "cease doing business" alternative is
claimed to signify the clauses and their enforcement to have
a secondary, and thus unlawful, aim.
The General Counsel in substantial measure relies on the
Board's decision in the so-called Calhoun case to support the
contention that the fringe benefit delinquency clauses have
a secondary object 7 In Calhoun a general contractor had a
contract with a building trades council providing, among
other things, that should he "subcontract any work and the
subcontractor fails to pay the wages or fringe benefits pro-
vided under the appropriate agreement with the union affili-
ated with the council ..." the general contractor would
become liable to pay such wages and fringe benefits. Cal-
houn was a nonunion subcontractor doing "drywall work"
for the general contractor. Pressure was brought to compel
the general contractor to comply with the contract provi-
sions by paying the sums called for, or ceasing to do busi-
ness with Calhoun. The Board rejected a defense that this
was lawful primary activity designed to protect the work
standards of a "union affiliated with the council." It was
reasoned that the conduct could not have been undertaken
to force the general contractor to pay fringe benefits on
behalf of Calhoun's employees, since the trust funds could
not receive sums for employees of employers not signatory
to the contract with the affiliated union. Nor could the sums
be deemed to benefit the general contractor's employees in
a "principal work unit" since he had no employees on the
job doing "drywall work" except those of Calhoun. There-
fore the Board held the object was to impose "strictly a
penalty" on the general contractor "for failing to subcon-
tract to a union subcontractor." This was deemed a second-
ary object and hence unlawful. The General Counsel argues
the instant case to be like Calhoun in that La Mirada, like
the general contractor in Calhoun, also had no employees
who might benefit from enforcement of the guarantee provi-
sion. Thus it is argued that the clauses and their enforce-
ment here, as in Calhoun, have a secondary object and must
be deemed unlawful. I disagree.
6 General Teamsters, Chauffeurs, Warehousemen & Helpers Local 982, et at
(Associated Independent Owner-Operators, Inc), 181 N LR B 515
7 Orange Belt District Council of Painters No 48, AFL-CIO (Calhoun Dry-
wall Company), 153 NLRB 1196
JOINT COUNCIL OF TEAMSTERS NO. 42 331
The General Counsel's argument overlooks an important
distinction between Calhoun and the instant case. In Cal-
houn the general contractor and Respondent Union were
parties to the same contract, but Calhoun, the subcontrac-
tor, was a party to no agreement whatsoever. In the instant
case Respondent Union, La Mirada, and Riphagen are all
parties to the same collective-bargaining agreement. The
Board properly found in Calhoun that there existed no work
unit for the guarantee clause to protect since all the "drywall
work" being done on the general contractor's job was not
covered by any contract at all. Thus it became reasonable
to conclude that the real aim of respondent unions was to
compel the general contractor to cease doing business with
the nonunion subcontractor. Had Riphagen been a non-
union subcontractor possibly we might face a similar situa-
tion here, but Riphagen and La Mirada are both bound to
the same contract. In addition we may also note that in
Calhoun the contract provisions are found in a so-called
"building trades council" type of contract whereby the con-
tracting union sought to bind-general contractors to subcon-
tract only to employers having agreements with unions
affiliated with the council. Such contract did not purport to
cover the wages, hours and working conditions of any spe-
cific group of employees. In the instant case we are dealing
with a comprehensive labor contract purporting to cover
one whole segment of construction industry work in a large
area. A consideration of the scope of this contract suggests
the work unit issue to be far different from that before the
Board in Calhoun.
Thus the master agreement purports to set standards for
wages, hours, and working conditions of all persons driving
trucks in the construction industry as it operates in the
Southern California area. The members of the associations,
together with the individual signatories to the short form
agreement, comprise a varied group of employers each of
which supplies some sort of needed service in this branch of
the construction industry. Both association members and
individual party signatories are equally bound to pay the
contract wages and to pay the fringe benefits in the form of
required payments to the trust funds. It is characteristic of
the construction industry that the employment history of
most workers will show them as working for numerous con-
tractors snice jobs are constantly starting and finishing. The
use of the trust funds to collect and disburse contract fringe
benefits serves both a statutory purpose and as a practical
means of insuring that covered employees are credited for
benefits earned regardless of the number of employers for
whom they may have worked. The same fringe benefits are
ultimately disbursed to covered employees by the trust
funds whether such employees have worked for one or more
industry contractors, or whether or not any particular con-
tractor has been an association member or an individual
party signatory to the master agreement. In providing for
the fringe benefits the contracting parties are clearly under-
taking to set up adequately funded trusts which will main-
tain a continuing solvency, and at all times be able to
disburse the negotiated benefits. The integrity of these
funds will in substantial measure depend upon required
contributions neither being evaded nor falling in arrears.
Delinquencies if permitted to become widespread could ad-
versely affect every employee covered by the contract. The
primary obligation to keep up required payments of course
resides in the immediate employer of any covered worker.
To the extent he completely fulfills such obligation nothing
further will be needed . The disputed provisions, however,
reasonably recognize that there may be employers, most
likely the smaller and less adequately financed ones, who
may be unable or unwilling to meet such primary obliga-
tions. The contract provisions seek to insure that when this
occurs neither the employees of the delinquent employer
nor the fund as a whole will suffer, because the prime con-
tractor is required to guarantee that fund payments will be
kept up so long as he continues to use the services of a
delinquent subcontractor . Unlike Calhoun where it was im-
possible for the fund to receive fringe benefits on behalf of
Calhoun's employees because Calhoun was not a party to
any contract , payments made by La Mirada , or any other
guarantor prime contractor , could be received by the fund
and credited to the employees of Riphagen, since Riphagen
was also a party to the master agreement . Unlike Calhoun
where the challenged contract did not purport to cover any
specific group of identifiable employees , the master agree-
ment here specifically purports to benefit a readily identifia-
ble group comprised of workers in the designated
classifications who work for any covered employer.
In view of the foregoing, and contrary to the claim of the
General Counsel I view the principal work unit here to be
comprised of all employees who work for association mem-
bers or individual party signatories to the master agreement
in the classifications which are therein set forth . The Gener-
al Counsel argues the work unit not to be so broad, contend-
ing that there are separate work units comprised on the one
hand of employees of association members, and on the
other hand of employees of individual party signatories to
the master agreement . The General Counsel cites a recent
Board decision in National Maritime Union of America,
AFL-CIO; Commerce Tankers Corporation (Vantage Steam-
ship Corporation), 196 NLRB 1100 , in support of this propo-
sition. I do not regard this decision as controlling.
Commerce Tankers covered collective-bargaining contracts
in the maritime industry which differ in many ways from the
collective -bargaining agreement before us. In addition the
particular situation before the Board in that case concerned
the effect of the sale of a vessel to someone who was not a
party to any contract . A guarantee clause affecting parties
to the same contract such as we find in the instant case was
not involved. I regard the Board's holding in Commerce
Tankers as limited to the somewhat unique facts of that
case , and do not view the case as a broad holding that in
industrywide master agreements generally individual par-
ties signatory necessarily comprise work units separate from
that of the association members on whose behalf the master
agreement had been negotiated.
If the principal work unit be deemed comprised of all
workers covered by the master agreement it becomes abun-
dantly clear that the clauses attacked are designed to protect
and preserve work standards for all unit employees, and to
insure the integrity of the funds which implement the nego-
tiated fringe benefits . Thus any secondary effect which
would come about when a prime contractor acting in accor-
dance with the provisions of these clauses would cease
doing business with a delinquent subcontractor would ap-
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pear purely incidental to the lawful primary object of per-
serving the work standards of the principal work unit.
Accordingly, I find the clauses attacked by the General
Counsel to be primary rather than secondary, and not to be
proscribed by Section 8(e) of the Act, and I shall recom-
mend the dismissal of such allegations in the complaint.
The allegations of Section 8(b)(4)(ii)(A) and (B) pertain
exclusively to attempts by Respondent Union to invoke and
enforce the clauses which have been considered above. In-
asmuch as I have found such clauses to have a primary
object efforts by Respondent Union to enforce them would
have a primary rather than a secondary thrust, and would
thus be lawful. In addition having found such clauses to be
primary in object it becomes unnecessary to consider Re-
spondent Union's claim that it is not responsible for con-
duct undertaken by the Trust Funds. Nor is it necessary to
consider the General Counsel's contentions which relate to
the applicability of the jobsite proviso to Section 8(e) of the
Act. Accordingly I recommend that the complaint be dis-
missed in its entirety.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
businesses affecting commerce within the meaning of Sec-
tion 2(2), (6) and (7) of the Act.
2. Respondent Umon is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent Umon has not, as alleged in the com-
plaint, engaged in unfair labor practices proscribed by Sec-
tion 8(e) or Section 8(b)(4)(ii)(A) and (B) of the Act.
Upon the foregoing findings of fact, conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
It is hereby ordered that the complaint herein be, and it
hereby is, dismissed in its entirety.
8 In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions and recommended Order herein shall , as provided in Section
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
1. The employer-members of AGC, BIA, EGCA, La
Mirada and Riphagen are collectively employers engaged in