Laborers Local 731 (Slattery Associates)

National Labor Relations Board - Board Decisions

Jun 18, 1990

298 N.L.R.B. 787 (N.L.R.B. 1990)

LABORERS LOCAL 731 (SLATTERY ASSOCIATES) 787
Building, Concrete , Excavating and Common Labor-
ers Union , Local 731 of Greater New York,
Long Island and Vicinity of the Laborers ' Inter-
national Union of North America , AFL-CIO
(Slattery Associates and Argrett Enterprises)
and General Contractors Association of New
York, Inc. and Locals 40 and 361 , International
Association of Bridge Structural and Ornamen-
tal Iron Workers, AFL.-CIO. Case 29-CD-341
June 18, 1990
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND,DEVANEY
The charge in this Section 10(k) proceeding was
filed July 9, 1986, by the General Contractors As-
sociation of New York, Inc. (GCA), alleging that
the Respondent, Building, Concrete, Excavating
and Common Laborers Union, Local 731 of Great-
er New York, Long Island and Vicinity of the La-
borers' International Union of North America,
AFL-CIO (Laborers), violated Section 8(b)(4)(D)
of the National Labor Relations Act by engaging
in proscribed activity with an object of forcing the
Employer to assign certain work to employees it
represents rather than to employees represented by
Locals 40 and 361 of the International Association
of Bridge, Structural and Ornamental Iron Work-
ers, AFL-CIO (Iron Workers).1 The hearing was
held September 23 and 24, 1986, before Hearing
Officer Elliot J. Mandel.
The National 'Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board affirms the hearing officer's rulings,
finding them free from prejudicial error. On the
entire record, the Board makes the following find-
ings.
I. JURISDICTION
Slattery-Argrett, a joint venture, is a partnership
composed of Slattery Associates, Inc. (Slattery)
and Argrett Enterprises, Inc., both corporations.
Slattery-Argrett's principal place of business is 46-
36 54th Road, Maspeth, New York. During the last
year, which period is representative of its oper-
ations generally, it provided construction services
for American Bridge Division of U. S. Diversified
Group of USX Corporation (Ambridge) which is
directly engaged in commerce.2 The parties stipu-
i Iron Workers intervened in this proceeding for the limited purpose of
presenting evidence regarding whether a jurisdictional dispute exists
2 Ambridge is a Delaware corporation whose principal place of busi-
ness is 600 Grant Street, Pittsburgh, Pennsylvania. Ambridge is engaged
in the business of steel erection and providing general contracting serv-
late, and we find, that Slattery-Argrett is engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act and that Laborers and Iron
Workers are labor organizations within the mean-
ing of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
In April 1985, the State of New York contracted
with Ambridge to repair certain parts of the Man-
hattan Bridge. Part of the work involved the re-
moval of pavement and structural reinforced con-
crete slabs. Ambridge subcontracted this part of
the work, which included the attaching and de-
taching of slings used to hoist and load the con-
crete slabs onto trucks, to Slattery by a contract
dated November 14, 1985. Slattery assigned the
work to its employees who are represented by La-
borers. Ambridge has collective-bargaining agree-
ments with both Iron Workers and Laborers.3 Slat-
tery has a collective-bargaining agreement with La-
borers.
In April 1986,4 Slattery began performing the
work in question. At the same time, Ambridge was
employing ironworkers to remove railings and to
repair the structural steel. After observing Labor-
ers-represented employees perform the work Am-
bridge had subcontracted to Slattery, Iron Workers
shop stewards from Locals 40 and 361, Reynolds
Mahlan and Leo Greenberg, respectively, told Slat-
tery Vice President Hastey, who was at the jobsite,
that the work of attaching and detaching the slings
should be done by Iron Workers-represented em-
ployees. The stewards were not aware that the
work had been subcontracted to Slattery. Hastey
informed them it was Slattery's work and they
took no further action at that time.
During the third week of April, Mahlan met
with Ambridge's project manager and job superin-
tendent, David Karr and Ron Tatem, respectively,
and informed them that the work being performed
by Laborers was covered by Iron Workers' con-
tract and that Ambridge had violated certain provi-
sions in its contract with Iron Workers by subcon-
tracting the work. Karr responded that the work
had already been awarded to Slattery and that it
was up to Slattery to make the proper craft assign-
ices for various corporations and governmental entities , including the
New York State Department of Transportation, which are themselves di-
rectly engaged in commerce. The parties stipulate , and we find , that Am-
bridge is an employer engaged in commerce within the meaning of the
Act
3 The Ambridge-Iron Workers contract has a clause restricting the sub-
contracting of work to only those who have a contract with the Iron
Workers
4 All dates are 1986 unless otherwise noted.
298 NLRB No. 111
788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment. Mahlan replied that he would take it up
through the proper channels. Approximately a
week, later, a similar conversation occurred be-
tween Greenberg, Karr, and Tatem. Hastey was
also present during the conversation.
In May, Iron Workers Local 40's Business Rep-
resentative James Mullet met with Ron Tatem.
Tatem informed Mullet that the work had been as-
,signed' to Slattery under a subcontract. Mullet
handed Tatem an enlarged copy of the subcon-
tracting section of the collective-bargaining agree-
ment and stated that Ambridge had violated the
agreement by subcontracting the work to Slattery.
On May 14, Iron Workers sent a letter to Am-
bridge demanding arbitration and seeking,'' inter
alia, liquidated damages because Ambridge violated
its contract with Iron Workers by subcontracting
the work in question to Slattery, which did not
have a contract with Iron Workers. An arbitration
hearing was scheduled for June 26,5 but was later
adjourned without a date to permit settlement dis-
cussions.
On June 25, Laborers threatened to take what-
ever action was necessary in order to keep the
work, including a strike. On June 30, Laborers sent
a letter to Slattery repeating its threat.
Iron Workers did not engage in any strike or
work stoppage or make any threats with regard to
the assignment of the work. The only actions taken
by Iron Workers were to inform the parties that
the work was covered by its contract with Am-
bridge and to file a grievance against Ambridge al-
leging breach of the subcontracting clause.
B. Work in Dispute
The disputed work involves the attachment and
detachment of slings used to hoist and load con-
crete slabs onto trucks at the Manhattan Bridge
jobsite.
C. Contentions of the Parties
Laborers and GCA (representing Slattery) con-
tend that this is a traditional jurisdictional dispute.
They argue that both Iron Workers and Laborers
have contracts that cover the work and that the
work emanated from a common employer . In this
regard , they point to Board precedent holding that
the applicability of Section 8(b)(4)(D ) is not limited
5 On June 25, 1986, GCA and Slattery sought to enjoin the arbitration
between Ambridge and the Iron Workers under Sec 301 of the Labor
Management Relations Act On February 9, 1987, the District Court for
the Southern District of New York denied the motion to stay the arbitra-
tion The court,ruled that to order to maintain a claim under Sec. 301(a)
of the LMRA there must be employer-employee privity between the par-
ties or some contractual relationship The court found no employer-em-
ployee or contractual relationship between GCA or Slattery and the Iron
Workers
to competing groups of employees working for the
same employer , but also extends to attempts to
force an indirect assignment of work from employ-
ees of one employer to employees of another.
Teamsters Local 222 (Emery Mining Corp.), 262
NLRB 1064 (1982). They contend that here Iron
Workers, by its arbitration proceeding , is in essence
demanding that Ambridge perform the work with
ironworkers or pay the penalty for not doing so.
Iron Workers contends that this is not a jurisdic-
tional dispute, but rather a separate and distinct
contract action that involves only it and Ambridge.
Iron Workers claims it has never sought the work
from Slattery nor has it threatened or coerced Slat-
tery in furtherance of such an aim . It asserts that
Teamsters Local 578 (USCP- Wesco), 280 NLRB 818
(1986), which involved the subcontracting of unit
work , controls this case . It argues that in that case
the Board quashed the notice of hearing on the
ground that the dispute involved the enforcement
of a work preservation provision of a contract and
was not a traditional jurisdictional dispute involv-
ing competing claims for work. Finally, Iron
Workers contends that Ambridge is not an inno-
cent employer that Section 10(k) was designed to
protect. Instead , Ambridge created the dispute by
voluntarily agreeing to restrict the subcontracting
of unit work and then voluntarily ignoring that re-
striction by subcontracting , to Slattery. Iron Work-
ers argues that Ambridge should not be allowed to
use the Board's processes to avoid its contractual
obligations.
D. Applicability of the Statute
In a 10(k) proceeding, the Board must determine
whether there is reasonable cause to believe that• a
violation of Section 8(b)(4)(D) has occurred. In the
instant case , this requires a finding that there is rea-
sonable cause to believe that a party has used pro-
scribed means to enforce its claim and that there
are competing claims to disputed work between
rival groups of employees.
As noted above, in response to information that
Iron Workers claimed the work was subcontracted
in violation of its contract , Laborers threatened to
take whatever action was necessary in order to
keep the work, including a strike. Laborers subse-
quently repeated this threat in a letter sent to Slat-
tery. Accordingly, if there are competing claims to
disputed work between rival employee groups,
there is reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred.
Iron Workers contends there are no competing
claims because its grievance does not constitute a
LABORERS LOCAL 731 (SLATTERY ASSOCIATES)
claim for the work. We reject this contention.6
Contrary to Teamsters Local 578 (USCP-Wesco),
supra, on which Iron Workers relies, where the
real nature of the dispute was work preservation,
the dispute here is a traditional jurisdictional dis-
pute in which two unions have collective-bargain-
ing agreements and each union claims its contract
covers the same work. Consequently, we conclude
there are active competing claims to disputed work
between rival groups of employees.?
As conceded by our dissenting colleague, our de-
cision is in accord with Board precedent, including
precedent in which our dissenting colleague par-
ticipated. Carpenters Local 33 (GC of Massachu-
setts), 289 NLRB 1482 (1988), relied on by our dis-
senting colleague, does not require a contrary
result. Blount involved the issue of whether pursuit
of a grievance after a 10(k) award constituted coer-
cion within the meaning of Section 8(b)(4)(ii)(D) of
the Act. The instant case, on the other hand, is a
10(k) proceeding in which the issue is whether
there are competing claims to the work. The stand-
ard in such cases is whether there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated. This standard is a lesser one than that in-
volved in post-10(k) cases such as Carpenters Local
33. We find that this standard has been met in the
instant case. In this connection, we note that in ad-
dition to filing its contractual claims, representa-
tives of Iron Workers Local 40 made oral claims
for the work to a Slattery official in April 1986. An
Iron Workers representative also made a similar
statement later that month to officials of Ambridge,
in the presence of a Slattery official.
The concerns raised by our dissenting colleague
that Board precedent creates a "safe haven" for
certain breaches of contract are misplaced. There is
not such "safe haven" under Board precedent. Car-
penters Local 33 makes it clear that a 10(k) award
does not block a union's access to its contractual
remedies for breach of a union signatory subcon-
tracting clause. Subsequent to the instant 10(k) pro-
ceeding, Iron Workers is free to continue to seek
redress under its contact with Ambridge for al-
leged breach of contract, if Iron Workers limits its
conduct to pursuing its grievance against Am-
bridge. Under Carpenters Local 33, such conduct is
not coercive, and any charge filed with the Board
concerning that conduct will be dismissed." As
Iron Workers retains its right to pursue contractual
claims against Ambridge, our decision does not
B See Sheet Metal Workers Local 107 (Lathrop Co), 276 NLRB 1200,
1202 (1985)
' Laborers (O'Connell's Sons), 288 NLRB 53 (1988).
8 See, e.g., Laborers Massachusetts District Council Local 22 (Turner
Construction), 296 NLRB No 137 (Sept. 29, 1989).
789
create a "safe haven for those who breach union
signatory subcontracting clauses."
Nor do we consider the issuance of a 10(k)
award in this case to be a waste of time and ex-
pense, as suggested by , our dissenting colleague.
We do not agree that such an award "may be ig-
nored" by the losing party. While the losing party
may pursue its contractual claim under Carpenters
Local 33., it is not free to engage in any type of co-
ercive conduct in support of its position.
Based on our findings above, we find reasonable
cause to believe a violation of Section 8(b)(4)(D)
has occurred and that there exists no agreed-on
method for voluntary adjustment of the dispute
within the meaning of Section 10(k) of the Act.
Accordingly, we find that the dispute is properly
before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an af-
firmative award of disputed work after considering
various factors. NLRB Y. Electrical Workers IBEW
Local 1212 (Columbia Broadcasting), 364 U.S. 573
(1961). The Board has held that its determination in
a jurisdictional dispute is an act of judgment based
on common sense and experience, reached by bal-
ancing the factors involved in a particular case.
Machinists Lodge 1743 (J. A. Jones Construction),
135 NLRB 1402 (1962).
Iron Workers' participation in the hearing in this
proceeding was limited to the question of whether
a jurisdictional dispute existed and did not extend
to the merits of the dispute.
The following factors are relevant in making the
determination of this dispute.
1. Certifications and collective-bargaining
agreements
No party claims there are certifications applica-
ble to the work in dispute.
Slattery, as the subcontractor that assigned the
disputed work, is the employer for purposes of de-
termining an award in this case.9 Laborers' agree-
ment with the GCA, to which Slattery is signatory,
covers: "All digging, concreting and removal of
existing old concrete, removal of concrete slabs
and other laborers' duties on and for elevated high-
ways, pedestrian walks, docks, decks, bridges,
ramps, runways over water, guard rails, barricades,
and similar"; Article VII, (c), section 78. Laborers'
contract with Slattery, therefore, refers to the dis-
puted work. Iron Workers has no contract with
Slattery.
9 See Laborers Local 223 (Anastasi Bros ), 272 NLRB 860, 862 (1984).
790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Because Laborers has a collective -bargaining
agreement with Slattery covering the disputed
work , and because Iron Workers does not have
such a contract with Slattery , we find that this
factor favors an award of the disputed work to em-
ployees represented by Laborers.
2. The Employer 's preference and past
practice
Slattery assigned the disputed work to Laborers-
represented employees and had invariably used
such employees in the past to perform such work.
Accordingly, these factors favor an award to em-
ployees represented by Laborers.
3. Area practice
Extensive testimony was presented at hearing
that Laborers-represented employees have per-
formed work of the kind in dispute here over a
long period for numerous contractors throughout
the greater New York City area. There was evi-
dence of only one specific contractor in the New
York area who had used Iron Workers -represented
employees to perform this type of work. This
factor, therefore, favors an award to employees
represented by Laborers.
4. Economy and efficiency of operation
John Saunders , president of Slattery , testified
that Laborers-represented employees perform many
of the tasks related to the removal of the concrete
slabs from the cutting and demolition to the clean-
up. In addition , the Laborers-represented employ-
ees have various other tasks to perform on the job-
site at times where there are few or no slabs to lift.
Saunders stated that very often there is no iron-
work or steelwork to be done when the concrete
slabs are removed and that Iron Workers-represent-
ed employees would , therefore , stand idle at such
times . He testified that for these reasons it was
more efficient and economical to use Laborers-rep-
resented employees to perform the work in dispute.
Accordingly , this factor favors an award of the dis-
puted work to employees represented by Laborers.
5. Relative skills and safety
The disputed work involves attaching slings to
the concrete slabs, giving signals to direct the
crane operator , and removing the slings . President
Saunders testified that it required a responsible,
skilled , and experienced worker to direct the crane
operator and that should such a worker make a
mistake, there could be adverse consequences at
the jobsite . There is evidence that Laborers -repre-
sented employees have an extensive history of per-
forming this type of work. No evidence was pre-
sented that Iron Workers-represented employees
have extensive experience performing the disputed
work . We find , therefore, that this factor favors an
award of the disputed work to employees repre-
sented by Laborers.
Conclusions
After considering all the relevant factors, we
conclude that employees represented by Laborers
are entitled to perform the work in dispute. We
reach this conclusion relying on the factors of col-
lective-bargaining agreements , employer preference
and past practice, area practice , economy and effi-
ciency of operations , and relative skills and safety.
In making this determination, we are awarding the
work to employees represented by Laborers, not to
that Union or its members. The determination is
limited to the controversy that gave rise to this
proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
Employees of Slattery Associates , Inc. represent-
ed by Building, Concrete , Excavating and
Common Laborers Union , Local 731 of Greater
New York, Long Island and Vicinity of the Labor-
ers' International Union of North America, AFL-
CIO, are entitled to perform the attachment and
detachment of slings used to hoist and load con-
crete slabs onto trucks at the Manhattan Bridge
jobsite.
CHAIRMAN STEPHENS , dissenting.
I would quash the 10(k) notice in this case be-
cause, for the reasons that follow , I would not treat
Iron Workers ' efforts to enforce its union signatory
subcontracting clause with Ambridge as a compet-
ing claim for the work that Slattery has assigned its
employees . I recognize that this position is con-
trary to some Board precedent , but I think it is jus-
tified on policy- grounds, is not inconsistent with
relevant statutory language, and follows logically
from the Board 's decision in Carpenters Local 33
(AGC of Massachusetts), 289 NLRB 1482 ( 1988).'
As set out in the opinion for the majority, Am-
bridge had a current agreement with Iron Workers
in which Ambridge promised not to contract out to
nonsignatory employers (i.e., employers who are
not themselves signatory to an Iron Workers agree-
ment) any work covered by the Ambridge/Iron
Workers agreement, including "the demolition, re-
' Among the precedents that I , in this reconsideration, would overrule
are two in which I participated , Laborers Massachusetts District Council
Local 22 (Turner Construction), 296 NLRB 1077 (1989), and Laborers
(O'Connell's Sons), 288 NLRB 53 (1988)
I
LABORERS LOCAL 731 (SLATTERY ASSOCIATES)
moval and slinging of decking on bridges." Iron
Workers has a reasonable argument that Ambridge
breached that agreement by subcontracting the
work to Slattery. Because Iron Workers' actions
have essentially been limited to: (1) giving notice of
its intent to pursue its contractual claim focused on
the subcontracting decision; and (2) actually pursu-
ing such a claim through normal arbitral and judi-
cial channels, it has engaged in a dispute that,
under the reasoning of our decision in Carpenters
Local 33., supra, is distinct: from any dispute that
competing groups of employees might have with
respect to Slattery's assignment of the subcontract-
ed work.2 Thus, in Carpenters Local 33., the Board
held that a union's pursuit of a claim for damages
against Blount, a general contractor, for an alleged
breach of its agreement not to subcontract certain
work to nonsignatory employers did not conflict
with the Board's award in a 10(k) dispute confirm-
ing the subcontractor's award of,the work to a dif-
ferent union, because the question of Blount's liabil-
ity for the subcontracting decision was not at issue
in the 10(k) proceeding.3
In my view, the difficulty with my colleagues'
position is that it allows a union that is a benefici-
ary of an employer's breach of a subcontracting
clause to secure the fruits of that breach simply by
threatening coercion against the subcontractor and
then relying on the likelihood that the subcontrac-
tor (who is also a beneficiary of the contract
breach) will file an 8(b)(4)(D) charge against the
threatening union. Such a course of action, under
my colleagues' view, triggers a 10(k) proceeding in
which the work may be awarded to the employees
of the subcontractor, without regard to how the
2 Although Iron Workers stewards did approach a Slattery official at
the site to state the Union's claim to the work, they made no demand for
the assignment after being informed that it was Slattery 's work under a
subcontract, and all their actions thereafter were limited to stating and
seeking enforcement of their contractual claim against Ambridge through
proper channels.
3 The holding in Carpenters Local 33 is not inconsistent with Longshore-
men IL WU Local 7 (Georgia-Pacific), 291 NLRB 89 (1988) affd 892 F 2d
130 (D C. Or 1989), in which the Board held that a union will be found
guilty of coercion within the meaning of Sec 8(b)(4)(D) if it files or con-
tinues to pursue a contractual grievance claim for work that was award-
ed in a prior Board 10(k) proceeding to a group of employees other than
those it represents . Georgia-Pacific did not arise in the construction indus-
try, and therefore it did not concern any potential lawsuits to enforce
union signatory subcontracting clauses of the kind that are lawful only
under the construction industry proviso to Sec 8(e) of the Act. See
Woelke & Romero Framing v. NLRB, 456 U S 645, 661-665 (1982) (de-
scribing the scope of such clauses) A lawsuit based on a legal claim anal-
ogous to that of Iron Workers in this case would have an unlawful object
if brought against any employer not governed by the provisos to Sec.
8(e) Such a claim would therefore not be legally cognizable as anything
other than an attack on the assignment of work by the subcontractor, and
we would properly find it to be coercion within the meaning of Sec
8(b)(4)(D) that undermines the Board 's 10(k) award Georgia-Pacific,
supra, 291 NLRB 92 at 10 See also Longshoremen ILWU v. NLRB, 884
F 2d 1407, 1412-1413 (D C Cir 1989), enfg Longshoremen Local 13
ILWU (Sea-Land Service), 290 NLRB 616 (1988)
791
subcontractor obtained that work in the first place.
I see nothing in either the language or the policies
of the Act that warrants making Board 10(k)
awards into safe havens for contract breaches of
this kind.
Although Section 10(k) directs us to determine
any "dispute" out of which a proper charge under
Section 8(b)(4)(D) of the Act has arisen, the term
"dispute" as used in Section 10(k) is not defined,
and I believe that it accords with policies of the
Act to exclude from the definition of a 10(k) dis-
pute any conflicts, like the one involved here, be-
tween one union's effort to enforce a lawful union
signatory subcontracting clause against a general
contractor, and another union's threats, made to
the subcontractor, to retain the subcontracted work
for that employer's employees. A general contrac-
tor forced to defend in court against an arguably
meritorious allegation that it has breached a union
signatory subcontracting clause is not a helpless
employer caught in the kind of jurisdictional dis-
pute that concerned Congress when it enacted Sec-
tions 8(b)(4)(D) and 10(k) of the Act. Nor should
such a contractor be viewed as occupying that role
simply because the employees of the employer to
whom the subcontract was allegedly improperly
given have threatened the subcontractor with coer-
cion if the work is taken from them.
In addition to considering, the policies of Section
10(k) of the Act, we should also take note of the
policies underlying the construction industry provi-
so to Section 8(e). Congress granted a special ex-
emption to construction industry unions for the ne-
gotiation and enforcement (within the context of a
collective-bargaining relationship) of union signato-
ry subcontracting clauses. Woelke & Romero Fram-
ing v. NLRB, supra. Those clauses may be ren-
dered a nullity if the act of seeking to enforce them
by noncoercive means can be thwarted by the in-
terposition of a 10(k) proceeding in which the so-
called competing claims' are, examined as if the dis-
pute focused only on the work assignment made by
the subcontractor after the alleged contract breach
had given him' the work.
Having said that, I want to make the limits of
my position clear. I am addressing only actions
taken through normal arbitral and judicial channels
to enforce an arguably meritorious claim that work
has been subcontracted in breach of a lawful union
signatory subcontracting clause.4 I am not address-
4 By permitting a union to pursue an arguably meritorious contract
claim under these circumstances , I am not diverging from the position I
took in Electrical Workers IBEW Local 113 IBEW (Collier Electric), 296
NLRB 1095 (1989), in which I declined to find that we should dismiss
allegations of 8(b)( 1)(B) and 8 (b)(3) violations grounded on a union's at-
Continued
792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing a case in which a union , in addition to pursuing
its contract grievance, seeks to enforce its position
by engaging in or encouraging strikes, picketing, or
boycotts or by threatening such actions.5 Neither,
as I have indicated (fn. 2, supra), am I addressing
cases arising outside of industries in which union
signatory subcontracting clauses are lawful.
Finally, just as I examined the practical effect of
my colleagues' position-creating a safe haven for
those who breach union signatory subcontracting
clauses-so I am willing to acknowledge the prac-
tical effect of my own. If the Board had a policy of
declining to proceed to a 10(k) hearing when the
alleged competing claims consist only of. (1) one
union's pursuit, through proper contract enforce-
ment channels, of its claim against a contractor for
tempt to enforce an interest arbitration clause against an employer after
he had timely withdrawn from a multiemployer association and was bar-
gaining individually for a new collective -bargaining agreement . There the
majority held that so long as the union had an arguable claim that the
employer was obligated by the clause in the expired agreement to permit
terms of a subsequent agreement to be resolved by interest arbitration,
the unfair labor practice charges should be dismissed I contended that a
"clear and unmistakeable waiver" standard should apply because the em-
ployer's statutory right to have the contract negotiated by his own repre-
sentatives was at stake , and the union 's refusal to meet with the employ-
er's designated negotiating representatives would violate the Act in the
absence of such a waiver No such interest is at stake here because a con-
struction industry contractor has no statutory right to subcontract work
to nonunion contractors and, as we have held in Georgia-Pacific, supra, a
union does not engage in coercion within the meaning of Sec 8 (b)(4)(D)
simply by pursuing an arguably meritorious contract grievance over an
employer's assignment or contracting out of work
5 I am not relying on Teamsters Local 578 (USCP-Wesco), 280 NLRB
818, affd . sub nom USCP-Wesco v NLRB, 827 F 2d 581 (9th Cir 1987),
cited to us by Iron Workers As the Board noted, that was a "true work
preservation case" in which employees were protesting (through a con-
tract grievance) the removal of work they had actually been performing
for the employer when the employer contracted it out This is different
from the contracting out of work that is simply of the same type as that
covered by a union signatory subcontracting clause . Since in a pure work
preservation case, action taken against the employees ' employer is consid-
ered a primary dispute-and is therefore not regarded as action taken to
enforce an agreement prohibited by Sec 8(e)-the union would be free
(absent contractual prohibitions) to engage in picketing or other econom-
ic action , as well as to pursue a contractual grievance Houston Insulation
Contractors Assn v NLRB, 386 U S 664 (1967) By contrast, enforcement
of a union signatory subcontracting clause through such action would
violate Sec 8(b)(4)(B), even when the clause itself is exempted from the
8(e) prohibition by the construction industry proviso See, e g , Ets-Hokin
Corp, 154 NLRB 839, 842 (1965), enfd sub nom NLRB v. Electrical
Workers IBEW Local 789, 405 F.2d 159 (9th Cir. 1968), cert denied 395
U S 921 (1969)
breach of a lawful union signatory subcontracting
clause; and (2) threats or coercion by the union
representing the employees to whom the subcon-
tractor has assigned the work that was contracted
out in breach of the subcontracting clause, then we
would not often face cases such as Carpenters Local
33 in the future.6 A contractor, faced with a
union's meritorious claim based on a signatory sub-
contracting clause, would be likely, in order to
avoid contractual damages, either to withdraw the
subcontract from the nonsignatory employer or see
to it that that employer signed the project agree-
ment. There would be no Board 10(k) award to be
"undermined" by the union's peaceful pursuit of
this claim.
Such an outcome would not necessarily portend
further disputes that would escape Board resolu-
tion. If a subcontractor that signed the project
agreement at the general contractor's behest then
found itself the target of competing claims by the
union representing employees-to whom it had for-
merly assigned the work and the union that had en-
forced its subcontracting clause, we would then
have two undeniable competing claims aimed di-
rectly at the employer assigning the work (as op-
posed to a signatory subcontracting clause claim
made against a general contractor and a direct
claim for work made to a subcontractor). If picket-
ing or other 8(b)(4) coercion were used in support
of either of these competing claims, then an
8(b)(4)(D) charge would properly trigger a 10(k)
proceeding to resolve that dispute. This result
would effectuate policies of the Act to permit the
peaceful enforcement of lawful provisions in col-
lective-bargaining agreements and to protect em-
ployers from being caught in the middle of juris-
dictional disputes not of their making.
6 My colleagues assert that the Board 's continuing adherence to Car-
penters Local 33. will assure that the Board provides no safe haven for
breaches of union signatory subcontracting clauses While this may be
true in the long run, I see no point in undertaking the time and expense
of a proceeding to produce an award that we agree may be ignored by
the losing party in its pursuit of its contractual claim relating to the sub-
contracting of the work in dispute