Northern California Chapter

National Labor Relations Board - Board Decisions

Dec 16, 1957

119 N.L.R.B. 1026 (N.L.R.B. 1957)

1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Northern California Chapter, The Associated General Contrac-
tors of America , Inc., Central California Chapter , The Associ-
ated General Contractors of America, Inc., and their regular
members and St. Maurice, Helmkamp & Musser
Operating Engineers , Local Union No. 3 of The International
Union of Operating Engineers , AFL-CIO and St. Maurice,
Helmkamp & Musser . Cases Nos. 2O-CA-1123 and 2O-CB-4O7.
December 16, 1957
DECISION AND ORDER
On March 14, 1956, Trial Examiner Herman Marx issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. He dismissed certain other
allegations of the complaint. Thereafter the Respondents and the
General Counsel filed exceptions to the Intermediate Report together
with supporting briefs.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and briefs, and the entire record in the case, and hereby
adopts the findings of the Trial Examiner only to the extent consistent
herewith.
The following are the relevant facts in the case concerning which
there is no substantial disagreement. The chapters of the AGC'
involved in this proceeding represent some 400 contractors in a 46-
county area in central and northern California, which contractors
perform in excess of 90 percent of all heavy highway engineering and
building construction work in that area.
For approximately 10 years the AGC, on behalf of its members,
and the Operating Engineers, hereinafter referred to- as Union, have
been parties to successive collective-bargaining agreements. One of
these agreements was executed in June 1952, modified in July 1953,
and again in May 1954. (As modified, this agreement will be referred
to as the 1954 Master Agreement.) By its terms the 1954 Master
Agreement covered "any employee who performs work within the
recognized jurisdiction of the Union." Specifically covered by the
agreement were employees engaged in field survey and engineering
'The term "AGC" hereinafter used in this decision refers to the Northern and Central
California Chapters of the Associated General Contractors of America, Inc.
119 NLRB No. 133.
NORTHERN CALIFORNIA CHAPTER 1027
work for the AGC members. Section 12 of the agreement provided
that:
The terms and conditions of this agreement insofar as it affects
the Employer and the individual employer shall apply equally
to any subcontractor under the control of, or working, under con-
tract with, such Employer or any work covered by the agreement,
and said subcontractor with respect to such work shall be con-
sidered the same as an individual employer covered hereby.
The agreement also provided for a grievance procedure and for the
establishment of a board of adjustment, consisting of 2 representa-
tives from the Union and 2 from the AGC, for the settlement of any
dispute arising from an interpretation of the contract.
St. Maurice, Helmkamp & Musser, hereafter called Musser, is an
engineering subcontractor engaged in providing field engineering and
surveying services. It is a member of the Western Association of
Engineers, Architects and Surveyors, hereinafter called Western
Association, an organization of employers engaged in civil engineer-
ing, surveying, and architecture. The Western Association represents
its employer members in labor relations matters and is authorized to
sign collective-bargaining agreements on their behalf. On December
2, 1952, the Board certified the San Francisco Area Group of Pro-
fessional Employees,2 hereinafter called Professional Employees, as
the collective-bargaining representative of an appropriate unit con-
sisting of all field, engineering, and office technical employees employed
by the members of the Western Association. There has been in exist-
ence at all times material to this proceeding a collective-bargaining
agreement between the Western Association and the Professional
Employees covering such employees.
In March 1955, four members of the AGC formed a Joint Venture
and contracted with the United States Army Corps of Engineers to
perform certain construction work at the Travis Air Force Base. On
or about March 12, 1955, Musser, pursuant to the terms of an oral
agreement between it and the Joint Venture, commenced the perform-
ance of field survey work at the Travis project. For this'purpose
Musser employed four technical engineers, all of whom were covered
by the terms of the then-existing contract between the Western Associ-
ation and the Professional Employees. On April 11, 1955, while Mus-
ter's work at the project was still in progress, the Union wrote a letter
to the AGC stating in substance that certain sections of the 1954
Master Agreement were not being observed with respect to the tech-
nical engineers in Musser's employ "contrary to, and in violation of"
section 12 of the agreement. Not receiving an answer to..this, letter,
2 This organization is now known as the Engineers and Scientists of California.
1025 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union, on May 9, 1955, caused a work stoppage at the Travis
project among the employees it represented. On the following day
the Joint Venture, through counsel for the AGC, suspended the per-
formance of all field survey work by Musser's employees pending a
decision of the board of adjustment appointed pursuant to the terms
of the 1954 Master Agreement. On May 19, 1955, the board of ad-
justment upheld the Union's position. On July 14, 1955, however,
the Board in Case No. 20-CC-109, issued a consent 8 (b) (4) (A)
order directed against the work stoppage caused by the Union at the
Travis project. In the light of this order the Union waived "its con-
tract and Board of Adjustment rights" and agreed to permit Musser's
employees to return to the project. Musser's employees returned to
work on August 15,1955.
On June 15, 1955, the AGC and the Union entered into a new
collective-bargaining agreement, hereinafter called the 1955 Master
Agreement. So far as is relevant to this proceeding, the new contract
is substantially similar to the 1954 Master Agreement except that it
contains a provision "that all employees covered by the agreement
shall be required, as a condition of employment to apply for, and to
become members of, and to maintain membership in the Union within
thirty-one (31) days following the beginning of their employment
or the effective date of this clause which ever is later." Section 12 of
the new agreement reads as follows :
The terms and conditions of this agreement insofar; as it affects
Employer and the individual employer shall apply equally to any
subcontractor under the control of, or working under contract
with such employer and any work covered by this agreement, and
said subcontractor with respect to such work shall be considered
the. same as an. individual employer covered thereby.
That if an individual employer shall subcontract work as
herein defined, provision shall be made in such subcontract for
the observance by said subcontractor of the terms of this
agreement.
A subcontractor is defined as any person, other than an em-
ployee covered by this Agreement, firm or corporation who agrees,
orally or in writing, to perform for or on behalf of an individual
employer any part or portion of the work covered by this
Agreement.
On June 3,1955, Musser submitted a bid for a subcontract to H. Earl
Parker, Inc., hereinafter called Parker, a regular member of the
AGC. In a reply to Musser's bid Parker, on July 11, 1955, stated that
it would be "glad" to award the subcontract to Musser provided that
the latter undertook to comply with section 12 of the 1955 Master
NORTHERN CALIFORNIA CHAPTER 1029
Agreement. Musser declined the offer on these terms stating that it
had a collective-bargaining agreement with the Professional Em-
ployees, and that, therefore, it could not compel its employees to
become members of the Union.
Upon the above facts and for reasons discussed hereinafter a
majority of the Board consisting of Members Rodgers, Bean, and
Jenkins finds (a) that the AGC violated Section 8 (a) (1) (2) and..
(3) and the Union violated Section 8 (b) (1) (A) and (2) of the
Act by effecting the removal of Musser's employees from the Travis
project and (b) that the Union violated Section 8 (b) (1) (A) and
(2) by attempting to cause Musser, through the AGC, to violate
Section 8 (a) (3).3
Another majority of the Board consisting of Chairman Leedom
and Members Murdock and Bean find that the AGC did not violate
Section 8 (a) (1), (2), and (3) and the Union did not violate Sec-
tion 8 (b) (1) (A) and (2) by executing, maintaining, and imple-
menting the 1955 Master Agreement. That same majority further
finds that the Union did not violate Section 8 (b) (1) (A) and (2)
in an attempt to cause Musser and other subcontractors to violate
Section 8 (a) (3) by executing and maintaining the 1955 Master
Agreement.
MEMBERS RODGERS AND JENKINS :
We agree with the following findings by the Trial Examiner :
(a) That AGC violated Section 8 (a) (1), (2), and (3) and the
Union violated Section 8 (b) (1) (A) and (2) of the Act by effecting
the removal of Musser's employees from the Travis project.
For the Union's conduct to constitute a violation of Section 8 (b)
(2) of the Act it must have caused or attempted to cause "an employer
to discriminate against an employee in violation of subsection (a) (3)"
of the Act. [Emphasis supplied.] Section 8 (a) (3) prohibits all
discrimination by "an employer" in regard to hire or tenure of em-
ployment to encourage or discourage membership in any labor or-
ganization, but for a narrow exception permitting a limited union
shop under specified circumstances. [Emphasis supplied.]
The strike against AGC was intended to cause and caused the termi-
nation of the employment of Musser's employees on the Travis proj-
ect. AGC was the contractor with Musser for the work' and had the
power, notwithstanding any possible liability for damages, to termi-
nate the subcontract and thereby exclude Musser and Musser's em-
s Chairman Leedom joins this majority to the extent of finding that the Union , in viola-
tion of Section 8 (b) (1) (A ) and (2 ), attempted to cause Musser to discriminate against
its employees in violation of Section 8 (a) (3).
4 For the purposes of this proceeding , the Joint Venture-the actual general contract on
the project-acted on behalf of the AGC when removing Musser's employees.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees from the job, and proceeded to do precisely that. because'
Musser's employees were not and could not , be represented by the'
Union. AGC had no objection, independent of the Union's, to, Musser-
as a subcontractor.' Musser's employees had no objection to working-
alongside employees represented by a different union than represented'
them and did not want representation by the Respondent Union.
Musser, was obligated under the Act and by contract to recognize
another union as the representative of his employees. Under these
circumstances, the most probable way for the Union to accomplish its
objective of securing the termination of Musser's employees or com-
pelling them to join the Union was by indirection: to put pressure
on AGC to put pressure on Musser to discriminate against his em-
ployees because of their lack of membership in the striking union
or to penalize him should he refuse to do so.
There can be no disagreement that AGO's action in suspending the•
work by Musser's employees amounted to "discrimination" which had,
the natural and foreseeable consequence of encouraging membership-
in the Union. The only area for disagreement between the majority
and the dissent on this point must be one of legal responsibility under
the Act for an accomplished facts We consider it immaterial that
no formal employer-employee relationship existed between AGC and_
Musser's employees. A defense, grounded on that fact, has no statu--
tory support ... As the Board stated in the Austin case : 7
... the statute, read literally precludes any employer from dis-
criminating with respect to any employee, for Section 8 (a) (3)
does not limit its prohibitions to acts of an employer vis-a-vis his.,
own employees.
In that case, the Board noted that other sections of the Act do limit,
their coverage to employees of a particular employer. The statute
expressly provides in Section 2 (3) and (9) that the "employees"'
embraced within 'its protection are not "limited to the employees of a.
particular employer, unless the Act explicitly states otherwise" and
that a labor dispute can arise "regardless of whether the disputants
5 Because this was so , we think the dissent of Members Leedom and Murdock goes too
far in 'saying that we base our finding "solely on the ground that he [the general con-
tractor] elects not to do business with the latter employer [the subcontractor ]." For us,
the reason for his election remains the paramount consideration.
6 This assertion is supported by the adherence of Members Leedom and Murdock to the
rule in The Great Atlantic & Pacific Tea Company, [16 NLRB 943, where but for the
lack of a specified type of "business relationship " between the employers involved the
Board presumably would have found, as did the Trial Examiner , that the referral for
union clearance , by the A & P terminal manager, at the request of the Union , of employees
of an independent contractor ` as a condition precedent to their being permitted to unload
at its terminals , constituted unfair labor practices involving Section 8 (a) (8) and (1)
and Section 8 (b) (2) and (1) (A).
7 The Austin Company, 101 NLRB 1257, 1259.
NORTHERN CALIFORNIA CHAPTER 1031
stand in the proximate relation of employer and employee." [Em-
phasis supplied.] Similarly Section 8 (a) (1) makes it an unfair
labor practice for "an employer" "to interfere with, restrain, or co-
erce employees in the exercise of [their] rights. . . ." [Emphasise
supplied.] Other provisions of the Act, e. g., Section 8 (a) (5), 8
(b) (3), 8 (b) (4) (B) and 8 (b) (4) (C), express a prohibition in
the explicit terms of "his employees." Section 8 (a) (3) contains
nothing which limits the scope of the section to employees of the em-
ployer guilty of the discrimination. The omission of qualifying
language in Section 8 (a) (3) cannot be accidental. The statutory
language therefore clearly manifests a congressional intent not to de-
limit the scope of Section 8 (a) (3) in the manner in which it is
construed by the dissenters herein. Reading Section 8 (a) (1) and
(3) in the light of section 2 (3), it seems clear to us that AGC is liable
for its interference with the rights of Musser's employees and for its
discrimination against them.
Indeed, the Supreme Court, in the Phelps Dodge case,° recognized
this principle in concluding that an employer violates Section 8 (a)
(3) of the Act in refusing employment to a prospective employee
because of his union affilation. Thus the Court stated (at 191 and.
192):
To circumscribe the general class "employees," we must find
authority either in the policy of the Act or in some specific
delineating provision of it. . . . The broad definition of "em-
ployee," unless the Act explicitly states otherwise . . . expressed
the conviction of Congress that disputes may arise regardless of
whether disputants stand in the proximate relation of employer
and employee... .
We find no authority, either in the policy of the Act or in any
delineating provision of it, for holding that legal responsibility for a
discrimination tending to encourage union membership is to be
determined by the relationship actual or prospective between the
employers involved.
As we see it, the question of legal responsibility for such discrimi-
nation does not, and cannot be made to, depend upon whether an
employer has, by reason of his business relationship with another
employer, such "contractual control" over the employees involved as
to render them his own, for all practical purposes.' To us, the relevant
8 Phelps Dodge Corp . v. N. L. R . B., 313 U. S. 177 ( 1941).
9 For this reason, we would overrule the following, and other phases, to the extent that
they are inconsistent herewith : The Great Atlantic t Pacific Tea Company, et at., 116
NLRB 943; United Association of Journeymen and Apprentices , etc. (Frick Company),
116 NLRB 119; United Association of Journeymen and Apprentices , etc. (Carrier Corpora-
tion), 112 NLRB 1385; Los Angeles Building and Construction Trades Council, AFL.
etc., (Standard Oil Company of California), 105 NLRB 868.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-questions are whether an employer had the power to effectuate the
removal of employees, whether he proceeded to do so, and thus, as a
result, whether he thereby caused a discrimination with respect to
their tenure of employment because of their union activities or lack
thereof. It is sufficient for a finding of a violation of Section 8 (a)
(3) and (1) that an employer, who meets the Act's definition of an
,employer,10 has accomplished an act while results in a discrimination
with respect to the "tenure of employment" 11 of employees who meet
the Act's definition of employees. It is the discrimination that
encourages or discourages union membership that is of primary con-
cern for determining the ..issue and not the specific relationship
between the discriminating "employer" and the discriminated;against
"employees." It is sufficient that the discriminatee be a member of
the working class in general and that the "employer" be any employer
who has any interest, direct or indirect, in the conditions of employ-
ment of the discriminatee or has any control, direct or indirect, over
the terms of his employment. Certainly, the AGC had real control,
albeit indirect, over the employment status of Musser's employees at
the. Travis project and in fact exercised that control by terminating
-their employment.
For these reasons, we find that the Union, by causing the AGC to
remove Musser's employees from the project, violated Section 8 (b)
(1) (A) and (2) and that the AGC, by succumbing to the Union's
demands in this respect, violated Section 8 (a) (1) and (3).
(b) That the work stoppage to cause AGC to terminate its sub-
contract with Musser unless Musser required his employees to join
the striking Union constituted an attempt to cause Musser through
AGC to discriminate against his employees in violation of Section
8 (a) (3), thereby violating Section 8 (b) (1) and (2).
'As stated before, AGC had the power, notwithstanding any possible
liability for damages, to terminate its subcontract with Musser and
to withhold the award of future contracts, unless the latter complied
with the Union's discriminatory objectives. Under these circum-
stances, the work stoppage was potent economic coercion against
Musser and against Musser's employees on the Travis project. Section
8 (b) (2) proscribes indirect pressure of this character as well as
direct pressure to induce employee discrimination."
'- Sec. 2 (2) provides that "employer" includes "any person acting as an agent of an
employer, directly or indirectly. . . .
"We note that Sec. 2 (3) clarifies this phrase in Sec. 8 (a) (3) by particularizing
"any individual whose work has ceased as a consequence of, or in connection with, any
current labor dispute or because of any current labor dispute or because of any unfair
labor practice. . . [Emphasis supplied.]
17 N. L. R. B. v. Local Union No. 55 and Carpenters' District Council of Denver, et al.,
218 F. 2d 226, 232 (C. A. 10), enfg. 108 NLRB 363.
NORTHERN CALIFORNIA CHAPTER 1033
As the Board said in the Carrier case: 13
The test is not whether the pressure is direct or indirect, but
whether it was intended to cause a violation of Section 8 (a) (3)
and whether it was reasonably calculated to bring about that
result.
It is clear that the pressure in this case, applied through another
employer, met this test. The fact that the conduct might also consti-
tute proscribed secondary activity-on the facts as stated contravening
Section 8 (b) (4) (A), (B), (C) and possibly (D)-does not alter
the sign nificance of this test for a violation of Section 8 (b) (2).14 The
question remains whether the means used to accomplish unlawful
objectives proscribed by the statute for the protection of neutral
employers were also used for other unlawful objectives proscribed
by the statute for the protection of employees.15 Here, the object of
the exertion of economic pressure on Musser was to compel him to
recognize the striking Union in derogation of the certified representa-
tive of its employees; or to compel him to require his employees to
join the striking Union; or to fire his employees because of their
nonmembership in the striking Union. We accordingly find that the
Union violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act by
attempting to cause Musser, through AGC, to violate Section 8 (a.) (3) .
(c) That AGC and the Union violated Section 8 (a) (1), (2), and
(3) and Section 8 (b) (1) (A) and (2), respectively, by executing,
implementing, and maintaining sections 12 and 3 of the 1955 Master
Agreement.
Section 12 of the 1955 Master Agreement requires that provision be
made in any subcontract for the observance by the subcontractor of
the terms of the 1955 Master Agreement. Section 3 provides that all
"employees covered by the Agreement" become and maintain member-
ship in the Union within 31 days "following the beginning of their
empl oynnent."
Members of the AGC, in the aggregate, perform more than 90 per-
cent of the major heavy, highway, engineering and building construe-
13 United Association of Journeymen and Apprentices , etc. (Carrier Corporation), 112
NLRB 1385, 1387. In that case, the Board relied upon the "power " of the general con-
tractor "to terminate any existing contract . . . and to withhold the award of future
contracts" with the subcontractor as a factor in finding the strike against the general
contractor a proscribed attempt to cause the subcontractor to violate Section 8 ( a) (3),
although it dismissed ( on grounds herein repudiated ) the further charge that the strike
constituted an attempt to cause the general contractor to discriminate against employees
of the subcontractor.
14 For this reason , we find no merit in the position of Member Murdock as stated in his
dissenting opinion in the Carrier case, supra at 1390, and renewed herein by reference,
that "to use Section 8 ( b) (2) as a substitute for conduct specifically covered in sec-
tion 8 (b) (4) (A), or ( D) is to ignore the distinctions between these different types of
union conduct , distinctions which seemed `to 'Congress =to -warrant - separate and-'different
treatment in separate sections of the Act."
15 Morse Brothers , et at., 118 NLRB 1312.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion work in a 46-county area, and subcontract approximately 66
percent of the professional engineering and field survey work per-
formed. The parties stipulated that but for the inclusion of the
subcontractors' clauses in various contracts between the Union and
the AGC, in effect between July 17, 1952, and July 21, 1955, Parker
would have awarded subcontracts to Musser for field survey work on
13 different projects within that period and that Parker had informed
Musser that it would be glad to award a subcontract provided Musser
undertook to comply with section 12 of the 1955 Master Agreement.
The contention that this provision is legal because the Act does not
proscribe discrimination by an employer if an employer ignores the
Union's role in determining the employer's choice, the realities of the
situation and even the purposes to be accomplished by the Act. As
the Supreme Court said in the Radio Officers' Union case : 16
The policy of the Act is, to insulate employees' jobs from their
organizational rights. Thus §§ 8 (a) (3) and 8 (b) (2) were
designed to allow employees to freely exercise their right to join
unions, be good, bad, or indifferent members, or abstain from
joining any union without imperiling their livelihood. The only
limitation Congress has chosen to impose on this right is specified
in the proviso to § 8 (a) (3) which authorized employers to enter
into certain union security contracts, . . . [Emphasis supplied.]
In our view , Section 8 (a) (3) expressly provides against an
agreement between an employer and a labor organization that em-
ployees of another employer shall be required by their agreement
to become members of the contracting union." The proviso to Section
8 (a) (3) limits a permissible union-security provision to an agree-
ment with a labor organization: "(i) if such labor organization is
the representative of the employees as provided in section 9 (a), in
the appropriate collective bargaining unit covered by such agreement
when made. . . ." [Emphasis supplied.] All requirements of this
proviso must be met. And the Supreme Court has said, "No other
discrimination aimed at encouraging employees to join, retain mem-
10 Radio Ofcers' Union, etc . v. N. L. R. B., 347 U. S. 17, 40 ( 1954).
17 We note that the Trial Examiner in the Heating, Piping and Air Conditioning Con-
tractors, etc., case (102 NLRB 1646, 1655, 1656, 1657 ) acknowledged that "Obviously
one employer cannot make a union-shop agreement respecting the employees of another
employer ," and rested his finding that a contractual agreement that all radiator en-
closures be fabricated by companies who hired members of the Union did not violate
Section 8 ( a) (1) or 8 (b) (1) (A) or (2), with reference to the employees of a radiator
fabricator , on the ground that pressure directed at the contracting employer could not
cause the radiator fabricator to discriminate against its employees because Section 8
(a) (3) applies only to acts committed by an employer with respect to his own em-
ployees . This Board rejected this rationale (102 NLRB at 1648) but found the requisite
burden of proof not sustained . We agree with the Trial Examiner that this case is dis-
tinguishable on its facts from Heating, Piping and Air Conditioning Contractors, etc.,
including the fact that the provision herein sought to obtain recognition for the Union
from other employers without regard for the choice of the employees of such employers.
NORTHERN CALIFORNIA CHAPTER 1035
bership, or stay in good standing in a union is condoned.18 The
requirements of the proviso cannot be met in the application of an
agreement to employees of employers who are "not in the appropriate
collective bargaining unit" at the time the contract is made. The
union-security provision is therefore illegal. The mere execution
by an employer and a union of an agreement containing unlawful
,union-security provisions constitutes a violation of Section 8 (a) (3)
by the employer and 8 (b) (2) by the Union.19 The inclusion of
such provisions "is a form of discrimination in a condition of employ-
ment which tends to encourage or discourage membership in any labor
organization"; 20 because, by entering into such an agreement, the
union joins with the employer "in creating conditions which would
result in future discrimination," 21 thereby attempting to cause the
employer to discriminate.
The vice of the subcontractors' clause does not end with the in-
clusion of the illegal union-security provision in the Master Con-
tract. To hold that a labor organization which does not represent
the employees of particular employers and an employer who does
not directly employ such employees may by contract impose a bargain-
ing representative not of their own choosing upon those employees
and the terms and conditions of their employment with another
employer is contrary to the basic objectives of the Act. Section 7
guarantees employees the right "to bargain collectively through repre-
sentatives of their own choosing. Section 8 (a) (1), (2), and (3)
prohibit an employer from foisting upon employees a bargaining
representative not of their own choosing, contrary to their "organiza-
tional rights," and Section 8 (b) (1) (A) and (2) prohibit a labor
organization from causing or attempting to cause him to do so, either
by economic pressure or by contract provision.22 We accordingly
regard the subcontractors' clause as intrinsically illegal. It creates
•conditions for future wholesale discrimination.
The General Counsel and the Charging Party except to the Trial
Examiner's further finding that the union-security provision and
the subcontractors' clause in the Master Contract did not constitute
an attempt by the Union, in violation of Section 8 (b) (2), to cause
Musser and other members of the Western Association to discriminate
against their employees. The Trial Examiner dismissed this allega-
Is Radio Officers' Union v. N. L. R. B., 347 U. S. 17, 41-42 (1954).
19 The Great Atlantic & Pacific Tea Company, 81 NLRB 1052 ; Jones & Laughlin Steel
Corporation , et at., 83 NLRB 916; New York State Employers Association, Inc., 93 NLRB
127, enfd. 196 F. 2d 78 (C. A. 2) ; Heating, Piping and Air Conditioning Contractors,
etc., 102 NLRB 1646; and Acme Mattress Company, Inc., 91 NLRB 1010, enfd . 192 F. 2d
524 (C. A. 7).
20 The Great Atlantic & Pacific Tea Company, 81 NLRB 1052, at 1055.
21 Acme Mattress Company , 91 NLRB 1010, at 1013.
22 Morse Brothers, et al., 118 NLRB 1312.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion because he thought the clause did not exert the type.of pressure
upon Musser to violate the Act as was created by the work stoppage
at the Travis project. We disagree. The inclusion in the contract.
of both provisions is a reasonably calculated means to bring about
economic pressure, applied through another employer, upon the..sub--
contractor to achieve compliance with the. illegal objectives involved.
The question is not the type of pressure but whether the pressure
was intended to cause a violation of 8 (a) (3) and whether it was
reasonably calculated to do so. Compliance by the employer with
illegal provisions, under compulsion of contract, is as probable as
compliance compelled by strike after breach of such contract pro-
visions, as the facts in this very case involving Parker show. We
would not base union responsibility upon the willingness or unwill-
ingness of an employer to abide by the terms of an illegal contract.
Accordingly, we would find that the Union violated Section 8 (b) (2)
by attempting, through the subcontractors' clause in its contract
with AGC, toecause•Musser and other members of the Western Asso-
ciation, to violate 8 (a) (3).
CHAIRMAN LEEn0M and MEMBER MURDOCK :
The facts in this case are not in dispute. As indicated above, a
Joint Venture, composed of members of the AGC, was engaged in
a construction project at the Travis Air Force Base. The Joint Ven-
ture engaged the services of Musser, a subcontractor, to perform cer-
tain field survey work. As members of the AGC the Joint Venture
was bound by a. collective-bargaining agreement with the Respondent
Union under which subcontractors, such as Musser, were made subject
to the terms and conditions of that agreement. On April 11, 1955, the
Union protested to the Joint Venture that the contract was not being
observed with regard to Musser's technical engineers, referring spe-
cifically to their pay scales, working conditions, and payments into
the Union's -,health. and welfare funds. The record shows that these
employees were represented by another union, a condition that made
Musser ineligible as a subcontractor to the Joint Venture under the
provisions of its contract with the Respondent Union. On May 9
the Union engaged in a concerted work stoppage at the Travis project.
On May 10, the Venture suspended Musser's operations under the
subcontract.
It is the conclusion of the majority, reversing existing Board
precedent, that this action of the Joint Venture constituted discrimi-
nation against Musser's employees by the Joint Venture within the
meaning of Section 8 (a) (3) and that the Union's role in causing
such action by.the Joint Venture was violative of Section 8 (b) (2).
In July and August 1956, scarcely more than a year a:go, this Boyd,
NORTHERN CALIFORNIA CHAPTER 1037
without a dissenting voice, issued two decisions 23 which held that the
mere existence of a contractual relationship between a general con-
tractor, such as the Joint Venture, and a subcontractor, such as Musser,
did not vest sufficient control in the former over the latter's employees
to warrant a. finding that the general contractor by abrogating the
sfibcontrti.et• has discriminated against these 'erilployees within the
meaning of Section 8 (a) (3). These decisions are now summarily
overruled by the majority in the instant case. We cannot agree that
precedents so recently established should be so lightly overturned.
Two members of the majority are now of the view that an employer
can discriminate against employees of another employer within the
meaning of Section 8 (a) (3) solely on the ground that he elects not to
do business with the latter employer. The concurring member of the
majority holds that a general contractor has as much control over the
employment status of his subcontractors' employees as do the latter
employers themselves. We do not believe that either of these views
can prevail. The first is an extension of Section 8 (a) (3) of the Act
to a point never, in our opinion, intended by Congress. No decision
of this Board or of any court stands for the extreme notion that an
employer unlawfully discriminates against the employees of another
employer merely by a cessation of business with that employer. We
cannot.agree with two of our colleagues that the historic, 17-year-old
Phelps Dodge decision can reasonably be interpreted as precedent for
such a novel conclusion. In that case the Respondent Company
argued that the Board was without power under Section 10 (c) of
the Act to order back pay and reinstatement to applicants for employ-
ment who had been discriminatorily denied employment. The Supreme
Court pointed out that the broad definition of "employee" under Sec-
tion 2 (3) of the Act was the result of "constructions placed upon the
Clayton Act and kindred State legislation in relation to the functions
of workers' organizations and the desire not to repeat those con-
troversies." 313 U. S. 177, at page 192. The Court went on to find
that the definition of "employee" under this section of the Act as well
as the definition of labor dispute under Section 2 (9) "expressed the
conviction of Congress `that disputes may arise regardless of whether
the disputants stand in the proximate relation of employer and em-
ployee, and that self-organization of employees may extend beyond a
single plant or employer." [Citation of legislative history omitted,
emphasis supplied.] Ibid. It is clear, therefore, that in this decision
the Supreme Court, giving effect to the intent of Congress, held that
an employer was in violation of Section 8 (a) (3) of the Act by deny-
ing employment to persons who would have been his employees but
23 The Great Atlantic and Pacific Tea Company , 116 NLRB 943 ; United Association of
Journeymen ' and Apprentices, etc. (Frick Company ), 116 NLRB 119 . See also Los
Angeles Building and Construction Trades Council , etc. (Standard Oil Company of
California ), 105 NLRB 68 ; Carrier Corporation, 112 NLRB 1385.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the unlawful discrimination. This finding was necessary, the
court held, to protect employees in their right to be or become members
of a labor organization before they are actually hired by a particular
employer. Nothing in that decision, however, imposes a duty on; an
employer to do business or to cease doing business with another-
employer because of the union activity of the latter's employees. Sec-
tion 8 (a) (3), of course, forbids discrimination against employees to•
encourage or discourage union membership. But neither that section
of the Act nor any other section forbids an employer to discriminate
against employers. The Act does not forbid an employer to discrimi-
nate against landlords, storekeepers, mill owners, suppliers or other
employers whom he might desire to patronize or boycott, because of
the union or nonunion activity of their employees. Admittedly, the
status of employees is affected by their employer's success in obtaining
or continuing contracts that will provide them with work. In some
instances the fact that they are represented by a particular union may
well mean more contracts for their employer and, as a corollary, more.
work for them. In other instances the fact that his employees are
organized may work to an employer's detriment in seeking and obtain-
ing new business. That is not to say, however, that Section 8 (a) (3)
was designed to protect the business of employers who have yielded or
refused to yield to the demands of labor organizations for recognition
and bargaining. To so hold would add a new dimension to this sec-
tion of the Act. If it were the purpose of Congress to protect
employers from discrimination because of the union activity of their
employees, then the prohibition in Section 8 (a) (3) as to employer
conduct only might well have been broadened to forbid all persons to
discriminate against other persons to encourage or discourage union
activity. Certainly, the effect of discrimination against a particular
employer because of the union activity of his employees is exactly the
same whether the discriminator is an employer or a person with no
employees of his own. By holding that discrimination against
employers is equal to and a substitute for discrimination against
employees two of our colleagues, in our opinion, have bridged a gap
deliberately left open by Congress.
The decision of the concurring member of the majority would re-
verse the A & P and Frick cases, supra, to the extent of finding factu-
ally, contrary to those decisions, that a general contractor does have
sufficient control over his subcontractor's employees to warrant the
conclusion that the Joint Venture, in suspending Musser's operations
because of its agreement with the Respondent Union, violated Section
8 (a) (3) as to Musser's employees. This decision does not, however,
purport to hold that the contract between the Joint Venture and the
Union is itself a violation of the Act. The apparent ground for the
distinction is that the Joint Venture lawfully could agree to refuse
NORTHERN CALIFORNIA' CHAPTER 1039
to do business prospectively with subcontractors who would not abide
by its contract with the Union, but that, having engaged such a sub-
contractor, it could not thereafter suspend the subcontractor to rectify
its breach of contract. We do not believe that this distinction, is a
valid one. Moreover, the abridgement of Musser's status as an inde-
pendent contractor, responsible to the Joint Venture only for the
proper performance of the work subcontracted to him flies in the face
of long-established law on this subject. As the `Supreme Court of the
United States has held, the fact that a general contractor is "doing
business" with a subcontractor does not derogate from the independ-
ence of either or subject the employees 'of one to the control of the
other as an employer. This rule was clearly established by the
Supreme Court in N. L. R. B. v. Denver Building t Construction
Trades Council, 341 U. S. 675, at 689-690, reversing 186 F. 2d 326
(C. A., D. C.), where the Court said :
We agree with the Board also in its conclusion that the fact
that the contractor and subcontractor were engaged on the same
construction project, and that the contractor had some supervi-
sion over the subcontractor's work, did not eliminate the status
of each as an independent contractor or make the employees of
one the employees of the other. The business relationship between
independent contractors is too well established in the law to be
overridden without clear language doing so. The Board found
.that the relationship between Doose & Linter [the general con-
tractor] and Gould & Preisner [the subcontractor] was one of
"doing business" and we find no adequate reason for upsetting
that conclusion.
This decision has been the heart and core of the Board's and the courts'
secondary boycott findings in construction cases for more than 6 years.
To find a violation of Section 8 (b) (4) (A) picketing at a construc-
tion project must be held secondary rather than primary activity.
The decision of the Supreme Court in the Denver Building case, just
cited, 'made it clear that a general contractor was a secondary or neu-
tral employer with regard to a dispute between a subcontractor and
a union. On that basis and that basis alone the Board has consistently
found violations of Section 8 (b) (4) ' (A) where picketing was
directed against a general contractor to force him to cease doing busi-
ness with a subcontractor. Indeed, the Board in this very contro-
versy between the Union and Musser has entered a consent Order un-
der which the Union is enjoined from engaging in a strike to force
the Joint Venture to cease doing business with Musser. That order is
predicated upon the theory that the Joint Venture is an unconcerned
neutral employer not involved in Musser's dispute with the Union.
The decision of the concurring member of the majority, holding that
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Joint Venture exercises sufficient control over the employees of
Musser to be capable of violating Section 8 (a) (3) as to them, is, in
our opinion, contrary to this extant Order and contrary to long estab-
lished and judicially approved law defining the independent status of
general contractors and. subcontractors under Section 8 (b) (4) (A)
of-the Act.
For these reasons we would dismiss the complaint to the extent that
it alleges the Joint Venture to have violated Section 8 (a) (1), (2)
and (3) of the Act by its conduct in suspending Musser's operations
and executing, maintaining, and implementing its collective-bargain-
ing agreement with the Respondent Union. For the same reasons we
would dismiss the complaint to the extent that it alleges that the
Respondent Union has violated Section 8 (b) (2) and 8 (b) (1) (A)
with respect to its pressure on the Joint Venture.
MEMBER .BEAN, cony IrI ld1•g :lll spai',t' w:itll 1`ZE^1ii3F,RS RODGERS ttilld. JEN-
KINS and in part with CHAIRMAN LEEDOM and ME NIBER MI RDOCK : 24
I agree with Members Rodgers and Jenkins in their findings that
the AGC and the Union violated Section 8 (a) (1), (2) and (3) and
Section 8 (b) (1) (A) and (2), respectively, by effecting the removal
of Musser's employees from the Travis project. In my opinion a find-
ing that an employer-employee, relationship exists is not a prerequisite
to a conclusion that an employee has been discriminated against in
violation of Section 8 (a) (3) and (1) of the Act. In the instant case
the AGC,25 as general contractor at the Travis project where Musser
employees were then employed, occupied a sufficiently close relation-
ship with Musser's employees and had sufficient control over their
employment status on the project to warrant a finding that it violated
Section 8 (a) (3) and (1) by removing them from the project; realism
requires the conclusion that a-general contractor on a project on which
subcontractors' employees are actually employed is as much in con-
trol over those employees' status on the project as are their direct
employers and that the removal of such employees on the order of the
general contractor effectively terminates their employment at least
so far as the work on the project is concerned. I would overrule the
Frick and A d P cases, supra, to the extent that they require a
closer relationship than here exists upon which to base a finding of a
violation.
However, in my view a general contractor should not be held to
violate the Act by refusing or by agreeing to refuse to do business
z. For the reasons stated in his dissenting opinion in the Carrier case , supra, Member
Murdock would also dismiss the complaint to the extent that it alleges that the Union
violated Section 8 (b) (2) and 8 ( b) (1) (A) with regard to its indirect pressure on
Musser. Chairman Leedom would adhere to the majority decision in that case.
a For the purposes of this proceeding the Joint Venture, the actual general contractor
pn the project, acted on behalf of the AGC when removing Musser's employees.
NORTHERN CALIFORNIA CHAPTER 1041
with prospective subcontractors because their employees are not mem-
bers of a particular union. In such a situation the relationship
between the general contractor and the anonymous persons whom the
subcontractor might have placed on the job, is too remote and the
merely possible effect on their no more than conceivable employment
status of the general contractors' refusal to do business with their
employers, is entirely too speculative a factor upon which to base a
finding of a violation of the Act. Accordingly, I join with Chairman
Leedom and Member Murdock in finding that the execution, main-
tenance, and implementation of the 1955 Master Agreement, which
requires that the AGC do business only with those subcontrac-
tors whose employees become members of the Union, does not violate
the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that:
I. Northern California Chapter, The Associated General Contrac-
tors of America, Inc., and Central California Chapter, The Asso-
ciated General Contractors of America, Inc., their respective officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Encouraging membership in the Union, or any other labor
organization or discouraging membership in Engineers and Scientists
of California or any other labor organization by removing employees
of subcontractors engaged on its construction projects or in any other
manner discriminating against employees in regard to their hire or
tenure of employment or any terms or conditions of employment.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their right to self-organiza-
tion, to form, join, or assist Engineers and Scientists of California
or any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, and to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
.2. Take the following affirmative action which the Board finds
will effectuate the purposes of the Act.
(a) Jointly and severally with Operating Engineers, Local Union
No. 3, of the International Union of Operating Engineers, AFL-CIO,
make- whole Edward A.' Liss, Pierre Aldax, Dean M. Coats, and
476321-58-vol. 119-67
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Edward J. Kresinski in the manner and according to the method
set forth in section entitled "The Remedy" in the Intermediate Report.
(b) Post in conspicuous places at their principal offices in San
Francisco, California, including places where notices to their mem-
bers are customarily posted, copies of the notice attached hereto
marked "Appendix A." 26 Copies of said notice, to be furnished
by the Regional Director for the Twentieth Region of the Board,
shall, after being signed by a duly authorized representative of each
of the Respondents, Northern California Chapter, The Associated
General Contractors of America, Inc., and Central California Chapter,
The Associated General Contractors of America, Inc., be posted by
such Respondents immediately upon receipt thereof and maintained
by them for 60 consecutive days thereafter. Reasonable steps shall
be taken by the said Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Upon receipt of copies of said Appendix A front the said
Regional Director, forthwith serve a signed copy thereof upon each
of their members and every firm, partnership, corporation, associa-
tion, individual, or other employer, whom they represent for the
purposes of collective bargaining. Such service may be effected by
mailing the said copy of Appendix A in an envelope properly ad-
dressed and with proper postage to each such member, firm, partner-
ship, corporation, association, individual, or other employer.
(d) Notify the Regional Director for the Twentieth Region in
writing, within ten (10) days from the date of this Order, what steps
they have taken to comply herewith.
II. Operating Engineers, Local Union No. 3 of the International
Union of Operating Engineers, AFL-CIO, its officers, agents, suc-
cessors, and assigns shall :
1. Cease and desist from :
(a) Causing or attempting to cause the Joint Venture or either
of the Respondents, Northern California Chapter, The Associated
General Contractors of America, Inc., Central California Chapter,
The Associated General Contractors of America, Inc., or any of the
members of these Respondents, or any other employers or associations
represented by such Respondents, to discriminate against any
employees in violation of Section 8 (a) (3) of the Act.
(b) Attempting to cause St. Maurice, Helmkamp & Musser, or any
other employer, to discriminate against any employees in violation of
Section 8 (a) (3) of the Act.
(c) In any like or related manner restraining or coercing em-
ployees in the exercise of their right to self-organization, to form,
2a In the event that . this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
NORTHERN CALIFORNIA CHAPTER 1043
join, or assist any, labor organization, to join or assist Engineers and
Scientists of California, member of Engineers and Scientists of
America, to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to refrain from
any or all such activities, except to the extent that such right may
be affected by an agreement, requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section 8 (a).
(3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Jointly and severally with Northern California Chapter, The
Associated General Contractors of America, Inc., and Central Cali-
fornia Chapter, The Associated General Contractors of America, Inc.,
make whole Edward A. Liss, Pierre Aldax, Dean M. Coats, and
Edward J. Kresinski in the manner and according to the method
set forth in the section entitled "The Remedy," in the Intermediate
Report.
(b) Post in conspicuous places at its usual membership meeting
places and dispatching offices in San Francisco and elsewhere in the
State of California, including places where notices to members are
customarily posted, copies of the notice attached hereto marked "Ap-.
pendix B." 2' Copies of said notice, to be furnished by the Regional,
Director for the Twentieth Region of the Board, shall, after being
signed by a duly authorized representative of the Respondent, Operat-
ing Engineers, Local Union No. 3 of the International Union of
Operating Engineers, AFL-CIO, be posted by such Respondent im-
mediately upon receipt thereof and maintained by it for 60 consecu-
tive days thereafter. Reasonable steps shall be taken by it to insure
that said notices are not altered, defaced, or covered by any other
material.
(c) Forthwith return a signed copy to the said Regional Director,
so that he may make copies thereof and give them to the Joint Venture
for conspicuous posting, if the latter be willing, at its office or other
headquarters at the construction project at Travis Air Force Base
for a period of 60 consecutive days, and to the Respondents, Northern
California Chapter, The Associated General Contractors of America,
Inc., and Central California Chapter, The Associated General Con-
tractors of America, Inc., for posting and service of such copies of
Appendix B, provided such Respondents are willing, in the same man-
ner and to the same extent as the said Respondents are required to
post and serve copies of Appendix A.
r See footnote 26, supra.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for the Twentieth Region in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
PHILIP RAY RODGERS, Member.
STEPHEN S. BEAN, Member.
JOSEPH ALTON JENKINS, Member.
IT IS FURTHER ORDERED that the allegations of the complaint that by
"executing, maintaining and enforcing," section No. 3 and section No.
.12 of the 1955 Master Agreement, the Respondents violated Sections
8 (a) (1) (2) and (3) and Sections 8 (b) (1) (A) and (2) be, and
they hereby are, dismissed.
BOYD LEEDOM, Chairman.
ABE MulDocK, Member.
STEPHEN S. BEAN, Member.
APPENDIX A
NOTICE TO OUR MEMBERS AND ALL OTHER EMPLOYERS AND
ORGANIZATIONS REPRESENTED BY US
Pursuant to a Decision and Order of the National Labor Relations
Board , and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify our members and all other employers and
organizations represented by us that :
WE WILL NOT encourage membership in Operating Engineers
Local Union No. 3, of the International Union of Operating Engi-
neers, AFL-CIO, or any other labor organization, or discourage
membership in Engineers and Scientists of California, member of
Engineers and Scientists of America, or any other labor organi-
zation by removing employees of subcontractors engaged on
construction projects of our members or in any other manner
discriminate against employees in regard to their hire or tenure
of employment or any terms or conditions of employment.
AVE WILL NOT, in any like or related manner, interfere with,
restrain, or-"coerce employees in the exercise of their right to
self-organization, to: form, join, or assist Engineers and Scien-
tists of California, member of Engineers and Scientists of Amer-
ica, or any., other, labor organization, to bargain collectively
;through represent.itives of their own choosing, to engage in con-
certed activities for the purpose of collective bargaining, or other.
'mutualaid.or protection and to refrain from any or all such activ-
ities, except to the extent that. such right might be affected by
an agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
NORTHERN CALIFORNIA CHAPTER 1045
WE WILL jointly and severally with Operating Engineers, Local
Union No. 3 of the International Union of Operating Engineers,
AFL-CIO, make whole Edward A. Liss, Pierre Aldax, Dean
M. Coats, and Edward J. Kresinski for any loss of pay they
suffered as a result of the discrimination against them.
NORTHERN CALIFORNIA CHAPTER, THE ASSOCIATED
GENERAL CONTRACTORS OF AMERICA, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
CENTRAL CALIFORNIA CHAPTER, THE ASSOCIATED
GENERAL CONTRACTORS OF AMERICA, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO OUR MEMBERS AND ALL OTHER EMPLOYEES
REPRESENTED BY US
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our members and all other employees
represented by us that :
WE WILL NOT cause or attempt to cause the Joint Venture,
Northern California Chapter, The Associated General Contrac-
tors of America, Inc., Central California Chapter, the Associated
General Contractors of America, Inc., or any of their members,
or any other employers or organizations represented by such
Chapters, or either of them, to discriminate against any em-
ployees in violation of Section 8 (a) (3) of the National Labor
Relations Act.
AVE WILL NOT attempt to cause St. Maurice, Helmkamp & Musser
or any other employer, to discriminate against any employees
in violation of Section 8 (a) (3) of the National Labor Rela-
tions Act.
WE WILL NOT, in any like or related manner, restrain or coerce
employees in the exercise of their right to self-organization, to
form, join, or assist any labor organization, to join or assist
Engineers and Scientists of California, member of Engineers
and Scientists of America, to bargain collectively through rep-
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resentatives of their own choosing, to engage in concerted activ-
ities for the purpose of collective bargaining or other mutual
aid or protection, and to refrain from any or all such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL jointly and severally with Northern California Chap-
ter, The Associated General Contractors of America, Inc., and
Central California Chapter, The Associated General Contractors
of America, Inc., make whole Edward A. Liss, Pierre Aldax, Dean
M. Coats, and Edward J. Kresinski for any loss of pay they suf-
fered as a result of discrimination against them.
OPERATING ENGINEERS, LOCAL No. 3 OF
THE INTERNATIONAL UNION OF OPERAT-
ING ENGINEERS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On June 14, 1955, a partnership known as St. Maurice, Helmkamp & Musser (also
described herein as Musser ) filed a charge with the National Labor Relations Board
(referred to below as the Board) in Case No. 20-CB-407 against the Respondent,
Operating Engineers , Local Union No. 3 of the International Union of Operating
Engineers , AFL-CIO ( also designated herein as the Union).' Musser filed an
amendment to the charge on August 8, 1955, and another on September 30, 1955.
On August 8, 1955, Musser filed a charge with the Board in Case No. 20-CA-1123
against the Respondent, Northern California Chapter, The Associated General
Contractors of America, Inc., and the Respondent, Central California Chapter, The
Associated General Contractors of America, Inc. (These Respondents are also col-
lectively described herein as the AGC or the AGC Associations, and, respectively,
as the Northern California AGC and the Central California AGC.) This charge
was amended by Musser on September 30, 1955. On that date, pursuant to the
Board 's Rules and Regulations , Series 6, the Regional Director for the Twentieth
Region of the Board entered an order consolidating the cases in which the respective
charges were filed. Based upon the charges , as amended , the General Counsel of
the Board issued a complaint on September 30, 1955, alleging that the AGC Asso-
ciations , their "regular members," and the Union had engaged in and were engaging
in unfair labor practices within the meaning of the National Labor Relations Act,
as amended (61 Stat. 136-163), also described herein as the Act. The Union and
the AGC have been duly served with copies of the charges and amendments re-
spectively applicable to them, and with copies of the complaint and order of
consolidation.
Among other things, the complaint alleges that the AGC Associations are "the
collective bargaining agents" for their "regular members," including four general
construction contractors , Harms Bros., Parish Brothers , Inc., Parish Bros., and
Gordon H . Ball (collectively referred to below as the Joint Venture ); that Musser
' The American Federation of Labor and the Congress of Industrial Organizations hav-
ing merged , I have amended the designation of the Union in the caption and elsewhere in
this Intermediate Report, in accordance with a policy followed by the Board.
NORTHERN CALIFORNIA CHAPTER 1047
is engaged in the business of providing field engineering and surveying services for
construction projects; that Musser is a member of an organization of employers
known as the Western Association of Engineers, Architects and Surveyors; that on
December 2, 1952, the Board certified a labor organization, San Francisco Area
Group of Professional Engineers (now known as Engineers and Scientists of Cali-
fornia, member of Engineers and Scientists of America) as the collective-bargaining
representative of all professional and technical employees of members of the Western
Association of Engineers, Architects and Surveyors; that the labor organization so
certified and the Western Association of Engineers, Architects and Surveyors, and its
"employer members," are, and have been at all material times, parties to a collective-
bargaining agreement; that by the terms of a contract dated March 15, 1955, be-
tween the Joint Venture and the United States Army Corps of Engineers, the former
agreed to perform certain construction work at a project at Travis Air Force Base,
Fairfield, California; that the Joint Venture subcontracted engineering and surveying
work at the project to Musser; and tnat the latter commenced the performance of
its subcontract on or about March 12, 1955.
With respect to the claimed unfair labor practices, the complaint (as amended at
the hearing in this proceeding) alleges, in material sum, that on or about May 9,
1955, the Union caused employees of the Joint Venture to engage in a strike or
concerted refusal to work because employees of Musser were employed in "alleged
violation" of a collective-bargaining agreement then in effect between the Union
and the AGC; that, on or about May 10. 1955, as a result of the Union's conduct,
the AGC, "acting through regular member Joint Venture," instructed Musser "to
remove its field survey employees" unless it complied with the said collective-
bargaining agreement; that Musser thereupon "removed" its said employees, and
the Joint Venture directly employed personnel to replace them; that on or about
May 19, 1955, a "Board of Adjustment" was created pursuant to the provisions of
the said collective-bargaining agreement; that thereafter the Board of Adjustment,
ruling in substance, among other things, that Musser was required to comply with
the terms and conditions of the said collective-bargaining agreement applicable to
employees, and had failed to comply with various of such terms and conditions,
directed, in effect, that Musser "bring into and maintain the job in compliance" with
the said collective-bargaining agreement, "the means or methods to be determined
by the Joint Venture"; that by reason of the circumstances of the strike or con-
certed refusal to perform work, mentioned above, the instruction to Musser to
remove its employees from the project, and their removal and replacement, the
ruling of the Board of Adjustment, and the subsequent application of the said ruling,
the AGC Associations and their "regular member employers" have interfered with,
restrained, and coerced employees in the exercise of rights guaranteed by the Act,
thereby violating Section 8 (a) (1) of the Act, have assisted the Union in contra-
vention of Section 8 (a) (2) of the Act, and have discriminated against employees
in violation of Section 8 (a) (3) of the said Act; and the Union has restrained and
coerced employees in the exercise of rights guaranteed by the Act, thereby violating
Section 8 (b) (I) (A) of the Act, and, in contravention of Section 8 (b) (2) of the
Act, has caused the AGC, and has attempted to cause Musser, to discriminate against
employees in violation of Section 8 (a) (3) of the said Act; that on or about June 15,
1955, the Union and the AGC entered into "a new collective bargaining agreement"'
which they "since have maintained and enforced, and have caused and induced the
regular members" of the AGC "to observe and comply with"; that, among other
things, section 3 of the agreement provides that all employees covered by its terms
"shall be required, as a condition of employment, to apply for and become members
of, and to maintain membership in, the Union within thirty-one (31) days following
the beginning of their employment or the effective date of this clause, whichever is
later"; that section 12 of the agreement provides, among other things, that the
terms and conditions of the contract "shall apply equally to any subcontractor
under the control of, or working under contract with, such employer (to whom the
agreement is applicable) on any work covered" by the contract, and requires the
employer, in the event he subcontracts such work, to make provision in the sub-
contract for the observance by the subcontractor of the collective-bargaining agree-
ment; and that by executing, maintaining, and enforcing said sections 3 and 12 of the
agreement, taken together, and section 12 "in and of itself," the AGC and their
"regular member employers" have interfered with, restrained, and coerced employees
in the exercise of rights guaranteed by the Act, thereby violating Section 8 (a) (1),
have assisted the Union in contravention of Section 8 (a) (2), and have dis-
criminated against employees in violation of Section 8 (a) (3); and the Union, in
contravention of Section 8 (b) (1) (A), has restrained and coerced employees in
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the exercise of rights guaranteed by the Act, thereby violating Section 8 (b) (1) (A),
and, in violation of ^!,ectiion 8 (b) (2). has caused, or attempted to cause, and is
causing, or attempting to cause, the AGC Associations, their "regular employer
members," Musser, and all other employer members of the Western Association of
Engineers, Architects and Surveyors to discriminate against employees in violation
of Section 8 (a) (3) of the Act.
Each of the Respondents has filed an answer, the AGC Associations answering
jointly. As the findings and conclusions made below are based upon undisputed
evidence, much of which is stipulated, it would serve no useful purpose to outline in
detail here which of the allegations of the complaint are denied, and which admitted,
in the respective answers. It will be sufficient to note that each Respondent, in
effect, denies that it violated the Act, and to summarize the affirmative defenses
of the respective answers. In that regard, the AGC's answer asserts, in substance,
that "a subcontractors clause" in substantially the same form as that contained in
section 12 of the current agreement between the AGC and the Union has been a
part of collective-bargaining contracts in the building and construction industry in
46 counties of northern California for more than 10 years and has fostered and
maintained stability in labor-management relations in the industry; that a holding
that the clause is invalid would cause instability in such relations and "burden and
obstruct commerce"; that for more than 8 years the Board "has denied to employers
and unions in the building and construction industry the benefits and protection of
the representation and other provisions" of the Act; and that the enforcement of the
unfair labor practice provisions of the Act at a time when the Board is denying and
withholding such benefits and protection will not effectuate the policies of the Act,
and is "arbitrary, capricious and discriminatory, and a denial of due process of law
in contravention of the Fifth Amendment to the Constitution." As affirmative
defenses, the Union's answer states that because of the nature of the construction
industry "the protection of the job opportunities of employees" therein engaged has
historically and properly been the subject of collective bargaining; that negotiations
concerning the subject matter of the subcontractors' clause are a lawful exercise of
the rights guaranteed employees by Section 7 of the Act; that employees "may engage
in a labor dispute within the meaning of the Act" to "obtain" such rights; that a
refusal by an employer or a union to bargain concerning the subject matter of the
subcontractors' clause would constitute a violation of the Act; and that to permit
an employer to subcontract "at will" in the construction industry "would be to place
the size, composition and very existence of every appropriate (bargaining) unit .
in the construction industry within the exclusive control of the employer . . . who
need not perform any of the work covered by a particular collective bargaining
agreement but subcontract such work in its entirety."
Pursuant to notice duly served upon all parties, a hearing was held before a duly
designated Trial Examiner, on October 24. 25, and 26, 1955, and December 5 and 6,
1955, at San Francisco, California. All parties were represented by counsel,
participated in the hearing, and were afforded a full opportunity to be heard, examine
and cross-examine witnesses, adduce evidence, file briefs, and submit oral argument.
Each of the parties submitted oral argument after the close of the evidence, and
has filed a brief which has been read and considered.
No testimony was presented at the hearing. The evidence consists entirely of
documentary exhibits and stipulations, some of which were introduced as exhibits,
and the rest stated orally for the record at the hearing. The findings and conclusions
made below are based upon undisputed evidence.
Upon the entire record, I make the following:
FINDINGS OF FACT
Y. NATURE OF THE AGC'S BUSINESS; THE BOARD'S JURISDICTION
The AGC Associations are California corporations. Each is a chapter of a
national organization of general contractors known as The Associated General
Contractors of America, Inc. The AGC Associations operate in a territory consist-
ing of 46 California counties located "above the northern boundaries of San Luis
Obisno and Kern Counties and the westerly boundaries of Inyo and Mono Counties"
(AGC's Exhibit No. 5). Both AGC Associations have various classifications of
membership, including what are known as regular members. Only general contractors
in the construction industry are eligible for regular membership.2 The Northern
2 The bylaws of each of the AGC Associations define a general contractor as an "in-
dividual, firm or corporation who by agreement with another party undertakes to execute
work of construction In Its entirety and at least in part with his or its own construction
forces."
NORTHERN CALIFORNIA CHAPTER 1049
California AGC has approximately 275, and the Central California AGC approxi-
mately 110, regular members.
As the complaint alleges, and the answers admit, the AGC Associations are, and
have been at all times material to this proceeding, "engaged in the business of
promoting the trade interests of, and in acting as the collective bargaining agents
for, their regular members, including among others, Parish Brothers, Inc., Parish
Bros., Harms Bros., and Gordon H. Ball." 3 During the past 10 years the AGC
Associations have, on behalf of their members, jointly negotiated and entered into
a series of collective-bargaining agreements with the Union.4 The most recent of
these agreements, as will more particularly appear below, is now in effect. By
reason of the representative status of the AGC Associations and their joint proce-
dures in negotiating and executing collective-bargaining agreements with the Union,
the AGC Associations and their members are, at least for the purposes of deter-
mining the Board's jurisdiction over this proceeding, a single employer within the
meaning of Section 2 (2) of the Act.5 It is thus appropriate to base the assertion
of jurisdiction over the subject matter of this proceeding on the aggregate interstate
commerce operations of the AGC Associations' members.
During each of the calendar years of 1954 and 1955, regular members of the
AGC purchased materials, with an aggregate value in excess of $500,000, which
were shipped to them directly from points outside the State of California, and in
each of such years, regular members of the AGC performed construction work,
aggregating in excess of $200,000 in value, for customers located outside the State
of California. Moreover, in 1955, the Joint Venture under a contract with the
United States Army Corps of Engineers, undertook, for an agreed consideration in
excess of $3,000,000, to perform work on a construction project at Travis Air Force
Base, Fairfield, California. The project is directly related to the national defense,
and performance of the work thereon warrants the assertion of jurisdiction here
under criteria established by the Board.6 In sum, members of the AGC Associa-
tions have been, at all times material to this proceeding, engaged in interstate com-
merce within the meaning of the Act; the operations of the AGC Associations and
their members have affected, and affect, such commerce; the Board has jurisdiction
over this proceeding; and the assertion of its jurisdiction will effectuate the policies
of the Act 7
II. THE LABOR ORGANIZATIONS INVOLVED
The Union and Engineers and Scientists of California, member of Engineers and
Scientists of America (formerly known as San Francisco Area Group of Professional
Employees), are, respectively, labor organizations within the meaning of Section 2
(5) of the Act.
3In its bylaws, each of the AGC Associations vests the exercise of its "corporate
powers" in its board of directors, and empowers the board of directors to represent it
and its members "in the matter of labor disputes, labor agreements and other phases of
management-labor relations." The respective bylaws also provide that "the Association,
on its own behalf and on behalf of its members, . . . may, through its duly authorized
officers, when authorized so to do by a majority of the board of directors, enter into
agreements concerning labor subjects with the employees of such members . . ." (General
Counsel's Exhibits Nos. 4A and 5A).
4 The joint negotiations are conducted, on behalf of the members, by a joint labor
committee selected by the respective boards of directors. This joint negotiating procedure
is not confined to collective bargaining with the Union, but is followed in negotiating or
renegotiating agreements, usually annually, with various other labor organizations repre-
senting craft employees in the building and construction industry. (See General Counsel's
Exhibit No. 5 for a detailed description of the negotiation machinery, and the labor
organizations and groups of employees affected.)
5lnsulation Contractors of Southern California, Inc., et al., 110 NLRB 638, and cases
cited. It may be noted that the respective answers, admitting relevant allegations of the
complaint, in effect concede that the AGC Associations and their regular members are
employers within the meaning of the Act.
O Maytag Aircraft Corporation, 110 NLRB 594. It may also be noted that in an un-
reported case involving the Travis project, the Board has found, upon a stipulated record,
that the Joint Venture is engaged in commerce within the meaning of the Act. (Operating
Engineers, Local Union No. 3, etc., Case No. 20-CC-109, not reported in printed volumes
of Board Decisions and Orders.)
7 For applicable jurisdictional criteria, in addition to the Maytag and Insulation con-
tractors cases, cited earlier, see, also, Jonesboro Grain Drying Cooperative, 110 NLRB 481.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
Musser is a partnership engaged in the business of providing field engineering and
surveying services in the building and construction industry. The partnership is a
member of the Western Association of Engineers, Architects and Surveyors (also
described below as the Western Association), an organization of persons registered or
licensed by the State of California to practice civil engineering, land surveying, or
architecture. As the Board has previously found, the Western Association repre-
sents its employer members in labor relations matters, is authorized by them to sign
collective-bargaining agreements on their behalf, and is an employer within the
meaning of the Act (Western Association of Engineers, etc., 101 NLRB 64).
On December 2, 1952, following a hearing and a representation election, the
Board certified a labor organization named San Francisco Area Group of Profes-
sional Employees (referred to below as the Professional Employees) as the repre-
sentative of an appropriate bargaining unit consisting of field and office technical
employees (with certain exclusions not relevant here) in the employ of members
of the Western Association.8 Employees engaged in field survey work, bearing the
classification titles of chiefs of party, inspectors. instrumentmen, chainmen, rodmen,
and field assistants, were included in the bargaining unit. (As the record in this
proceeding applies the group designation "technical engineers" to such field survey
employees, for convenience of reference, that term will be applied to them below.)
On February 27, 1953, the Western Association, on behalf of its members, and
the Professional Employees entered into a collective-bargaining agreement prescribing
terms and conditions of employment of the employees in the unit mentioned above.
(The labor organization is now known as Engineers and Scientists of California,
member of Engineers and Scientists of America, and will be referred to below as the
Engineers and Scientists.) The agreement, as modified or amended since its execu-
tion, is still in effect.9
Since June 7, 1946, the AGC Associations and the Union have been parties to a
series of successive collective-bargaining agreements. One of these (General Coun-
sel's Exhibit No. 9D) was executed on June 24, 1952, and modified on July 16, 1953
and May 6, 1954. As last modified, the contract (which, in its modified form, will
be described below, for convenience of reference, as the 1954 Master Agreement)
was to remain in effect until April 30, 1955, and to "continue from year to year
thereafter" unless changed, amended, modified, or terminated pursuant to a notice
procedure specified in the contract.
The provisions of the 1954 Master Agreement (General Counsel's Exhibit No. 9B)
are m-nv and varied, and deal, among other matters, with such subjects as classifi-
cations of employees affected, union recognition, union jurisdiction and its terri-
torial scope (the 46-county area), grievances, wages, hiring and discharges, hours
of employment, and health and welfare fund payments. It is unnecessary to canvass
the details of all of these subjects. A description of some of the provisions will
suffice. By the terms of section 1 of the contract, the agreement applies "to any
employee (with certain exclusions not relevant here) who performs work within the
recognized jurisdiction of the Union," and "cover(s) all work" within that juris-
diction. Section 2 provides that the employers subject to the agreement "recognize
and acknowledge" the Union as the collective-bargaining representative "of the
employees in the area aforementioned covering the jurisdiction of the Union." Sec-
tion 10 prescribes a "grievance procedure," providing, among other things, for the
establishment of a board of adjustment, consisting "of two representatives selected
by the Union and two representatives selected by the Employer" for the settlement
of disputes (with certain exceptions not relevant here) and the adjustment of "any
differences that may arise regarding the meaning or enforcement of this contract."
Section 19 contains a list of job titles (with applicable pay scales) covered by the
"The representation proceeding (Case No. 20-RC-1751, not reported in printed volumes
of Board Decisions and Orders) was initiated upon petition of the Professional Employees.
The Union participated as intervenor. For the Board's Decision and Direction of Election,
of which I have taken official notice, see Western Association of Engineers, etc., 101
NLRB 64.
g The agreement (General Counsel's Exhibit No. RA) and contracts between the AGC
Associations and the Union (see, for example, General Counsel's Exhibit No. 9A) use
different terminology to describe various classifications of technical engineers. (For a
comparison, see Charging Party's Exhibit No. 1.) The differences in terminology do not
materially affect the issues.
NORTHERN CALIFORNIA CHAPTER 1051
agreement, including various classifications of technical engineers, and, by refer-
ence, incorporates a section labelled "Special Conditions As Applied To Field Survey
Work" which states, in part, that "the classifications herein referred to shall apply
only to employees covered hereby, regularly employed in field survey work. ." to
Section 12, described in the record as a "subcontractors clause," provides that:
The terms and conditions of this agreement insofar as it affects Employer and
the individual employer shall apply equally to any subcontractor under the con-
trol of, or working under contract with such employer on any work covered by
this agreement, and said subcontractor with respect to such work shall be
considered the same as an individual employer covered hereby.
As stated above, in March 1955, the Joint Venture contracted with the United
States Army Corps of Engineers to perform some construction work at Travis Air
Force Base. On or about March 12, 1955, Musser as a subcontractor, commenced
the performance of field survey work at the Travis project pursuant to the terms of
an oral agreement between it and the Joint Venture. The subcontractor employed
four technical engineers in the performance of its field survey work. Their names
are Edward A. Liss, Pierre Aldax, Dean M. Coats, and Edward J. Kresinski. Dur-
ing the period of Musser's work at the project it was subject, as a member of the
Western Association, to the collective-bargaining agreement in effect between that
organization and Scientists and Engineers; and the four employees named above
were members of Scientists and Engineers, and of the bargaining unit found to be
appropriate by the Board in the representation proceeding described above, and were
subject to the terms and conditions of the agreement between the Western Association
and Scientists and Engineers.
On April 11, 1955, while Musser's work at the project was in progress, the Union
wrote a letter to the AGC, stating in substance, among other things, that sections 4,
19, 20, and 24 of the 1954 Master Agreement were not being observed, with respect
to technical engineers in Musser's employ, "contrary to, and in violation of," the
subcontractors clause." (Section 4 deals with payments to employees for "show-up
time"; section 19, as previously noted, prescribes pay scales for the various classi-
fications of employees subject to the agreement; section 20 establishes "working
rules"; and section 24 provides for payments by "each Individual Employer covered
by this Agreement" into "the Operating Engineers Health and Welfare Trust Fund
for Northern California.") The letter invoked "the grievance procedure" of sec-
tion 10 of the 1954 Master Agreement, and requested that a "Board of Adjustment
be created for the settlement of . . . disputes" between the Joint Venture and the
Union described in the letter.
Thereafter, in a letter dated May 3, 1955, the Union informed the Joint Venture
that no action had been taken with respect to the matters set forth in the letter of
April 11, and notified the Joint Venture that the Union was "withdrawing all of the
employees" represented by it from the Travis project "as of" May 6, 1955, because,
according to the letter, the 1954 Master Agreement had "terminated," and it was
"evident" to the Union that the Joint Venture did not intend to comply with the
"expired agreement from day to day."
Employees at the Travis project represented by the Union engaged in a concerted
stoppage of work at the project, at the instance of the Union, on May 9, 1955.12 On
that date, also, the AGC Associations, through their attorney, Thomas E. Stanton,
Jr., advised the Joint Venture of the requirements of the subcontractors clause, and
expressed the opinion that the clause was binding on the joint Venture. That same
io The "Special Conditions" include a definition of "field survey work" which, for
reasons that will appear later, need not be set forth here.
n The letter does not mention Musser by name, but it refers to "technical engineers not
on the payroll of the Joint Venture," and it is clear from the record as a whole that the
quoted language has reference to Musser's employees. The letter also ,deals with alleged
violations of the collective-bargaining agreement by the Joint Venture with respect to
technical engineers in the direct employ of the Joint Venture. These details need not be
set forth because they are not germane to the issues.
12The Union's answer denies that the work stoppage was a strike, and asserts that
what the Union did was to withdraw employees covered by the 1954 Master Agreement
(or, in other words, employees represented by the Union) from the project. The claimed
distinction is at best a semantic one here, and does not materially affect the question
whether the Union caused the discrimination against Musser's field survey workers, as
alleged in the complaint. Whether or not the work stoppage is called a strike, the im-
portant fact is, as will appear, that the stoppage led to the exclusion of Musser's
employees from the project.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day, the Joint Venture sent a telegram to the Union, informing the latter, in effect,
that pending a board of adjustment decision or other settlement of the grievances
set forth in the Union's letter of April 11, the Joint Venture would employ technical
engineers on its own payroll (plainly, from the context of the record, in field survey
work until then performed by Musser's employees), and that such technical engi-
neers would be employed "from day to day ... under the terms" of the 1954
Master Agreement.
On May 10, 1955, the Joint Venture, through Mr. Stanton, instructed Musser to
suspend performance of field survey work at the Travis project under its subcon-
tract until further notice, and informed the subcontractor that it was "not to have
any of its employees performing field survey work at the said job site pending a
decision by a Board of Adjustment." Musser complied with these instructions, sus-
pending the performance of its field survey work at the Travis construction site on
May 10, 1955, and withdrawing the four field survey employees mentioned above
from the project. Shortly thereafter, they were replaced by technical engineers
employed directly by the Joint Venture, and the employees who had participated in
the work stoppage resumed their work at the construction site. The replacements
for Musser's technical engineers worked at the project until August 15, 1955, when
Musser resumed the performance of its subcontract, and its technical engineers
returned to work at the project, under circumstances to be described later.
On or about May 19, 1955, the Union and the AGC established a Board of Adjust-
ment in accordance with the provisions of the 1954 Master Agreement. The board
of adjustment, which consisted of two individuals appointed by the Union and an
equal number designated by the AGC, thereafter made the following ruling with
respect to grievances set forth in the Union's letter of April 11, 1955:
The Board of Adjustment requested by letter to the AGC Chapters from
Operating Engineers Local Union dated April 11, 1955, met at 3:00 o'clock
P. M. on May 19, 1955, at AGC Headquarters, 850 Battery Street, San Fran-
cisco. The Board consisted of L. D. Weirick and Millen L. Simpson, Employer
representatives, and P. E. Vandewark and Pat Clancy, Union representatives.
L. D. Weirick was elected Chairman and P. E. Vandewark was elected Secretary.
The Board determined the following facts:
Parish Bros., Parish Brothers, Inc., Harms Bros. and Gordon H. Ball,. a
Joint Venture, holds a general contract with the U. S. Corps of Engineers for
construction work at Travis Air Force Base. The Joint Venture allegedly let
a subcontract to St. Maurice, Helmkamp and Musser, an engineering firm, for
the performance of field survey work on this construction project. The Joint
Venture and all of said construction work are covered by the AGC-Operating
Engineers Master Agreement. Nevertheless, said subcontractor has failed to
make payments into the Operating Engineers Health and Welfare Trust Fund for
Northern California with respect to technical engineering classifications in the
Master Agreement employed by the subcontractor on said project and has failed
to comply with other terms and conditions of said Agreement applying to such
technical engineering classifications.
Under the provisions of Section 12 of the AGC-Operating Engineers Master
Agreement, the terms and conditions of said Agreement apply to every sub-
contractor working on the Travis Air Force Base job for the Joint Venture, and
the Joint Venture is advised that all subcontractors on said job are required to
comply with all of the terms and conditions of said Master Agreement, includ-
ing the wage scales and the health and welfare payments provided in said Master
Agreement and are hereby directed to bring into and maintain the job in com-
pliance with the Master Agreement, the means or methods to be determined by
the Joint Venture.
Although the terminal date of the 1954 Master Agreement was reached on April
30, 1955, the Union and the AGC nevertheless continued to treat the contract as in
effect on a "day to day basis" from its terminal date until they signed a new collective-
bargaining agreement on June 15, 1955, which is still in effect. (For convenience of
reference, this contract will be designated below as the 1955 Master Agreement.)
. The provisions of the new contract (General Counsel's Exhibit No. 9A) dealing
with coverage, the Union's jurisdiction and its territorial scope, and recognition of
the Union (see sections 1 and 2) are the same as those in the 1954 Master Agreement.
The "grievance procedure" (section 10) outlined in the current agreement is sub-
stantially similar to that prescribed in the prior contract. As in the 1954 Master
Agreement, section 19 of the current contract contains a list of job titles (with
applicable pay scales) covered by the agreement, including various classifications of
technical engineers . Appended to section 19 is a statement which, like the "Spe-
NORTHERN CALIFORNIA CHAPTER 1053
cial Conditions " of the former agreement , provides , in part, that "the classifica-
tions herein referred to shall apply only to employees covered hereby , regularly
employed in field survey work. " 13 Section 3 of the new agreement contains
provisions for union membership ( also designated below, for convenience of ref-
erence, as the union -security provisions ) which were not present in the prior con-
tract. The relevant portion of section 3 provides that "all employees covered by
the Agreement shall be required, as a condition of employment, to apply for, and
become members of, and to maintain membership in, the Union within thirty-one
(31) days following the beginning of their employment or the effective date of
this clause , whichever is later." Section 12 of the new contract ( the subcontractors
clause ) includes all of the language used in the comparable section of the former
contract , adds some provisions , and reads as follows:
The terms and conditions of this Agreement insofar as it affects Employer
and the individual employer shall apply equally to any subcontractor under
the control of, or working under contract with such employer on any work
covered by this Agreement , and said sub -contractor with respect to such work
shall be considered the same as an individual employer covered hereby.
That if an individual employer shall sub-contract work as herein defined,
provision shall be made in such sub -contract for the observance by said sub-
contractor of the terms of this Agreement.
A sub-contractor is defined as any person , other than an employee covered
by this Agreement , firm or corporation who agrees , orally or in writing, to
perform for or on behalf of an individual employer any part or portion of the
work covered by this Agreement.
Following a charge filed by Musser with the National Labor Relations Board
(in Case No. 20-CC-109), the Board entered an order, dated July 14, 1955 (based
upon a stipulation executed by the General Counsel, the Union and Musser con-
senting to the entry of the order ), directing the Union, among other things, to
cease and desist from " inducing or encouraging employees of the . Joint Ven-
ture . . . to engage in a strike or a concerted refusal in the course of their employ-
ment to perform any service for their employer, where an object thereof is to
force or require the said Joint Venture . . . to cease doing business" with
Musser.14
Musser wrote to the Joint Venture on July 18, 1955, advising the latter of the
entry of the Board's order , and proposing that it resume the performance of its
subcontract at the Travis project, and that its technical engineers return to work
there. Acting for the Joint Venture, Mr. Stanton sent a copy of Musser's letter to
P. H. McCarthy, Jr., attorney for the Union, on July 22, 1955. In a letter accom-
panying the copy, Mr. Stanton inquired of Mr. McCarthy, among other things,
whether "in view of the history of this matter and of the entry" of the Board's
order, the Union would waive its rights under section 12 of the 1955 Master Agree-
ment, and agree that it would "make no claim of contract violation , and take no
retaliatory or enforcement action , against the Joint Venture ," if the latter tendered
a subcontract to Musser for engineering work at the Travis project, without com-
plying with section 12, and if Musser thereafter performed the subcontract without
observing the terms of the 1955 Master Agreements. McCarthy replied, on behalf
of the Union , in a letter dated August 9, 1955, stating , among other things, that
the Union "hereby waives its contract and Board of Adjustment rights " with respect
to the performance by Musser of its subcontract with the Joint Venture at the
Travis project . Musser resumed the performance of its subcontract on August 15,
1955, and its technical engineers , previously employed at the Travis project, returned
to work there on that date.
On June 3, 1955, Musser submitted a bid for a subcontract to H. Earl Parker, Inc.
(referred to below as Parker ), a regular member of the Northern California AGC.
Thereafter, on June 22, 1955, Parker wrote to the Northern California AGC, re-
ferring to Musser 's bid, and stating , in part , that it "would very much like to award"
13 Like the " Special Conditions ," the appended statement includes a definition of field
survey work which, for reasons to be noted later , need not be set forth.
"The stipulation upon which the order was based provided, in part : "The signing of
this stipulation by the Respondent ( Union ) does not constitute , and is not, an admission
that Respondent has violated the Act, or that it is a party to any unlawful contract, nor
does it constitute a waiver of any of the . Respondent ' s lawful contract rights; and it is
further understood that the signing of this stipulation by the Charging Party . (Musser)
does not constitute , and is not, an admission of the legality of any or all provisions of
any contract referred to herein."
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the subcontract to Musser, but that it had been informed that under the 1955
Master Agreement it was not "legally entitled" to make the award. The letter
requested "a legal determination" whether the award could be made "without jeop-
ardizing" Parker's "position with any organization." The Northern California AGC
forwarded the letter to Mr. Stanton for advice. In reply, the latter prepared an
opinion in the form of a letter, dated July 1, 1955, addressed to the Northern Cali-
fornia AGC, which transmitted the letter or a copy to Parker.15 Among other
things, the letter described the circumstances of the work stoppage at the Travis
project; incorporated an excerpt from the board of adjustment decision; set forth
section 12 of the 1955 Master Agreement; and stated that an employer (such as
Parker) "covered" by that contract "is now required to insert in any subcontract
for work covered by the Master Agreement a provision requiring the subcontractor
to observe the terms of that Agreement." Parker wrote to Musser on July 11, 1955,
replying to the latter's bid, and transmitting a copy of Mr. Stanton's opinion. In
its letter, Parker stated that it would "be glad" to award the subcontract to Musser,
provided that the latter undertook to comply with section 12 of the 1955 Master
Agreement. Musser replied in a letter dated July 15, 1955. The letter noted that
Musser is a member of the Western Association, and that that organization has a
collective-bargaining agreement with the Engineers and Scientists; pointed out that
Musser could not "force" its employees "to join Operating Engineers, Local 3";
and, in substance, stated that Musser would not enter into the subcontract upon
the conditions set forth in Parker's letter of July 11.
B. Discussion of the issues and concluding findings
The primary questions to be resolved in this proceeding are (1) whether the
attempted application of the subcontractors' clause of the 1954 Master Agreement
to Musser, which led to the suspension of the employment of Musser's technical
engineers at the Travis project, violated the Act; (2) whether the subcontractors'
clause of the 1955 Master Agreement contravenes the Act; and (3) whether the
union-security provisions contained in section 3 of the 1955 Master Agreement
violated the Act. In connection with the last issue, it may be noted that the Gen-
eral Counsel does not contend that the union-security provisions, standing alone,
offend the statute, but that they are rendered invalid by force of the subcontractors'
clause of the contract. Of the several issues in the case, it is evident that the parties
regard the question of the legality of the current subcontractors' clause as the most
important. The Respondents have respectively advanced a number of contentions
which, in my judgment, do not meet the material questions in this proceeding.
These will be discussed first below as a preface to the resolution of the meritorious
issues.
Pointing out in their answer, in effect, that provisions similar to the current sub-
contractors' clause have been embodied in their agreements with the Union, and
with other labor organizations identified with the construction industry, over a
substantial period of years, the AGC Associations assert that such clauses have fos-
tered and maintained stability in the construction industry in the 46-county area,
and that a holding that the current subcontractors' clause is invalid "would cause
instability in labor-management relations" in the industry "and would burden and
-obstruct commerce." i think it unnecessary to balance this somewhat speculative
view of the consequences of such a holding against the fact that subcontractors'
clauses have been responsible, as will more particularly appear below, for the
denial of a substantial number of subcontracts to Musser, and of job opportunities
to its employees, and that the attempted application of the subcontractors' clause
of the 1954 Master Agreement resulted in the exclusion of Musser and its technical
engineers from the Travis project for a period of some 3 months. The basic in-
firmity in the claim is that it equates legality with usage, and the assumed needs
of those who are parties to subcontractors' clauses. Needless to say, it would be
regrettable if the results of a holding that the current subcontractors' clause offends
the Act were what the AGC envisages, but obviously that cannot alter the duty of
the Board to interpret the provisions of the Act and give them effect by prescribing
appropriate remedies for unfair labor practices. In that regard, it may be pointed
out that the Board and the courts have repeatedly held that considerations such as
economic duress afford no justification for violation of the Act.15 Comparably, the
15 The evidence does not explicitly state that the Northern California AGC transmitted
Mr. Stanton's letter to Parker, but it is evident that the organization gave the letter, or a
copy thereof, to Parker.
'"For example, see N. L. If. B. v. Lloyd A. Fry Roofing Company, et al., 193 F. 2d 324
(C. A. 9), and cases cited.
NORTHERN CALIFORNIA CHAPTER 1055
Respondents have no greater right to invoke usage and considerations of stability
in their relations as legal justification for the current subcontractors' clause, if the
clause, in fact, contravenes any provisions of the Act.
The AGC also maintains in its brief that the effect of the subcontractors' clause
"is to make the employees of subcontractors who perform work for general con-
tractors and builders falling within the scope of the Agreement (between the Union
and the AGC) a part of the bargaining unit covered by the Agreement." From this,
the AGC proceeds to the conclusion that the Union is the collective-bargaining
representative of such employees, while so employed; that the Union has a right
to enter into a collective-bargaining agreement, including a subcontractors' clause,
affecting them; and that "they (the subcontractor's employees) and their employer
(the subcontractor) are subject to the wages and other terms and conditions of
employment of the Master Agreement." The AGC advances a claim of necessity
to support these positions. Conceding that "the Board has certified certain multi-
employer units in the specialty trades" identified with the building and construction
industry,17 the AGC contends that "while more than seven years have passed since
the Board first announced that it would assert jurisdiction over the building and
construction industry, neither the General Counsel nor the Board has established
any generally available procedures for ascertaining what constitutes an appropriate
bargaining unit in the industry or how the majority representative of such a unit
is to be determined"; and that the Board "has never as yet certified or defined an
area-wide bargaining unit for general contractors and builders similar to the units
that have been in actual operation in the 46-county area for more than 10 years."
Thus, the argument runs, "employers and unions in the building and construction
industry in this area have not [waited] and could not wait until the Board defined
what it would consider to be appropriate bargaining units in the industry"; and that
because of considerations of stability in labor-management relations, the Union and
the AGC have, by their collective-bargaining agreements, established a bargaining
unit of employees which, "by custom and practice over many years, has become
relatively well-defined." Apparently related to the foregoing claims is a contention
that to enforce the unfair labor practice provisions of the Act against the AGC
Associations, "while withholding from them the benefits and protection of the
(representation provisions) of the Act" would be "arbitrary, capricious and dis-
criminatory, and a denial of due process."
Whatever one may hold concerning the legality of the subcontractors' clauses
involved in this proceeding, it is evident that the foregoing positions reflect a number
of misconceptions and contribute no effective support to the Respondents' claim
that the clauses are lawful. Without suggesting that the Board's administration
of the representation provisions of the Act require any defense here, some comment
on the AGC's assertions in that regard is appropriate. Section 9 of the Act entitles
a labor organization or an employer, in proper cases respectively applicable to them,
to file a petition with the Board seeking a determination of questions of representa-
tion, and the Board's Rules and Regulations provide ample procedural implementa-
tion for these statutory provisions. In short, the Act and the Rules and Regulations
already provide "generally available procedures" for the resolution of such representa-
tion questions as the Union and the AGC have the proper standing to submit to the
Board. Bearing the "available procedures" in mind, it may be instructive to note
the extent to which the Union and the AGC have resorted to them with respect to
technical engineers, The Union filed a petition with the Board in Case No. 20-RC-
445, on December 3, 1948, seeking a certification as representative of technical
engineers employed by regular members of the AGC in the 46-county area, but
subsequently withdrew the petition. There is no evidence that the AGC either
opposed or protested the withdrawal. The Union also participated, this time as
Intervenor, in the representation proceeding involving the Western Association and
the Professional Employees, which led to certification of the latter, but after the
Board directed an election, the Union requested that its name be withdrawn from
the ballot. The AGC has done even less than the Union to secure a resolution by
the Board of any representation question affecting technical engineers, for it has
never filed a petition in that regard. One is led to the ineluctable conclusion that
the AGC either has had no proper representation question to submit to the Board
or that, having one, it has chosen to stay its hand. I think it clear that the AGC
17 Air Conditioning Company of Southern California, 81 NLRB 940; and Refrigerating
Association of Northern Florida, 98 NLRB 1310; Plumbing Contractors Association of
Baltimore, Maryland , Inc., 93 NLRB 1081 ; Denver Heating, Piping and Air Conditioning
Contractors, 99 NLRB 251. The allusion to "specialty trades" above refers to the type
of work performed by "specialty contractors." This work is "customarily and usually sub-
contracted," as stipulated in AGC's Exhibit No. 5.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has not been denied "the benefits and protection " of the representation provisions
of the Act , 18 and that there is no merit to the claim that the application of the unfair
labor practice provisions of the Act to the AGC would be "arbitrary , capricious and
discriminatory and a denial of due process."
Turning to the AGC's unit and representation conceptions as they apply to
technical engineers in Musser 's employ or , for that matter , in the employ of any
member of the Western Association , one actually need go no farther than to point
out that these employees are members of a specific bargaining unit by force of a
decision of the Board ( Western Association of Engineers, etc., 101 NLRB 64), and
of a subsequent election held pursuant thereto; and that they are not represented
by the Union but by the Engineers and Scientists by reason of the certification issued
by the Board following the election . The results of that representation proceeding
obviously preclude acceptance of the representation and unit claims of the AGC as
they apply to any employees ( including Musser's ) embraced by the Board 's finding
and the election results. But even if one puts the Board 's decision and certification
aside , acceptance of the AGC' s representation and unit contentions with respect
to Musser 's employees would involve a denial of basic premises of the Act . Section
7 guarantees employees "the right to self-organization , to form, join , or assist labor
organizations , to bargain collectively through representatives of their own choosing."
Section 8 ( a) (5) imposes the obligation upon an employer "to bargain collectively
with the representatives of his employees " [emphasis supplied]. Musser 's technical
engineers employed at the Travis project are members of the Engineers and Scien-
tists and have not chosen the Union to represent them. They are not employed by
the AGC Associations , nor by any of their members. To hold that the Union,
which does not represent Musser's employees , and the AGC Associations and their
members , who do not employ them , may, by agreement , include these employees
in a bargaining unit is to fly in the face of the plain provisions of Section 7 and 8
(a) (5) of the Act.19
is In its brief , the AGC asserts that "at the time of the oral argument:" before the Board
in Guy F. Atkinson Co., 90 NLRB 143, Robert N. Denham , formerly General Counsel for
the Board , " issued a proposed statement of enforcement policy" in. which he said, in
part: "Special considerations peculiar to certain portions of the building and construction
industry , including unique employment relationships , bargaining patterns and traditions.
and unit eligibility questions have prevented the National Labor Relations Board and the
General . Counsel of the Board from establishing satisfactory administrative machinery for
conducting union security elections . . . ( Such elections are no longer required by the
Act.) It may be borne in mind that the Act vests authority in the Board, and not the
General Counsel , to decide questions of representation ; and that , as the AGC concedes,
the Board has issued certifications affecting multiemployer groups and employees identified
with various branches of the building and construction industry . In any event , the re-
marks in question do not materially affect any issue in this proceeding . The brief also
cites testimony before a Senate subcommittee by George Bott , formerly General Counsel
for the Board , dealing with special problems involved in representation questions affecting
the building and construction industry , and with the possible desirability of using a
so-called " labor pool" concept ( which need not be elaborated here ) for establishing bar-
gaining units in the industry . ( Hearings on S. 1973, Subcommittee on Labor -Management
Relations of the Committee on Labor and Public Welfare, U. S. Senate , 82d Cong., 1st
less., pp. 190-191.) These statements also are not germane to any meritorious issue in
this case. Similarly , the issues are unaffected by evidence contained in AGC ' s Exhibit
No. 5 pertaining to discussions in 1948 between representatives of the AGC and Mr.
Denham concerning " the possibilities of conducting representation and union-security-
elections in the building trades in Northern California " ; and to a resolution dealing with
such elections subsequently adopted by representatives of employers identified with that
industry.
19 The record contains stipulated evidence of a definition of field survey work , consisting
of a composite of provisions of section 19 of the 1955 Master Agreement dealing with such
work , and of a construction ( see General Counsel's Exhibit No. 22 ), in 1953 , by a board
of adjustment , of various terms of a collective -bargaining agreement then in effect between
the Union and the AGC . I have not incorporated either the contractual definition or the
ruling of the board of adjustment in findings because they have no material effect upon
the issues. This is not a representation proceeding directed to the objective of determin-
ing a bargaining unit based on the specific character of work performed by given employees
or on a history of collective bargaining pertaining to such work . The Board has already
determined the unit to which technical engineers in the employ of Musser or of other menn-
hers of the Western Association belong, and , for reasons noted above, the Board 's decision
and the subsequent election results foreclose acceptance here of any contrary representa-
NORTHERN CALIFORNIA CHAPTER 1057
The Union contends that the subcontractors' clauses involved in this proceeding.
are a limitation upon the right of employers subject to them to "subcontract at will";
that in the absence of the clauses, such employers would be free to subcontract all
of their work and thus have "sole and exclusive control" over "the size, composition
and very existence of every appropriate unit in the construction industry"; that the
subject matter of the clauses is the "quantum of work to be made available to, and
performed by, the employees covered by the agreements"; and, as the Union stated
during oral argument, that the effect of the clauses "is to make available the maxi-
mum number of job opportunities to the employees covered" by such contracts.
Without pausing to inquire whether the precise terms of the subcontractors clauses
actually described some or all of the purposes the Union perceives in them, it is
evident that the sum of the foregoing positions is that the conservation or reservation
of job opportunities for employees represented by the Union is a legitimate subject
of collective bargaining, and that therefore the terms and attempted application (as
at the Travis project) of the subcontractors' clauses do not offend any of the pro-
visions of the Act. However, the difficulty with this thesis is that it poses what
may be a legitimate objective as a premise and then proceeds to the conclusion that
the means designed to carry it out are therefore also legitimate. One can think of
many situations where the Act forbids resort to various methods of implementing
the exercise of rights guaranteed by Section 7. A familiar example is offered by
the situation where an employer is obligated to bargain with a union, as the repre-
sentative of his employees, and the labor organization resorts to conduct proscribed
by Section 8 (b) (4) to compel the employer to bargain. It is elementary that the
rights guaranteed the employees by Section 7 do not endow their bargaining repre-
sentative with the right to engage in an unlawful secondary boycott to implement
the exercise by the employees of their statutory guarantees. Thus assuming, as the
Board has in effect held, that an uncertified labor organization may, in given situa-
tions, bargain and contract with an employer for the assignment of "work tasks," 20
and that the objectives of the subcontractors' clauses are what the Union perceives
them to be, that does not inevitably mean that the clauses, designed as methods to
carry out the objectives, are valid, nor that the attempted application of the subcon-
tractors' clause of the 1954 Master Agreement to the Travis project was lawful.
For the resolution of the issues in this proceeding, one must look to the terms of the
clauses, their relationship to other provisions of the agreements in which they appear,
and the circumstances surrounding the exclusion of Musser's technical engineers from
employment at the Travis project.
As stated above, Musser has been denied a subcontract by Parker because the
former refused to agree, as a condition of the award, that it would comply with the
current subcontractors clause. The evidence also establishes, by stipulation of the'
parties, that "if a member of the Western Association . . . should be offered a sub-
contract for the field engineering work by an AGC contractor, upon condition that
said engineer fully comply with all the terms and conditions of the Master Agree-
ment between the AGC and Operating Engineers Local No. 3, said engineer would
refuse said subcontract upon said conditions" (Charging Party's Exhibit No. 1).
There is no evidence, however, that any subcontractor has actually taken a subcon-
tract subject to the provisions of the subcontractors' clause of the 1955 Master Agree-
ment or is complying with the terms of that agreement in conformity with the
clause. This brings to the fore the question whether the clause abridges the statu-
tory guarantees of technical engineers in the employ of Musser or other members of.
the Western Association in the absence of evidence that such employees have actu-
ally been subjected to the terms of the 1955 Master Agreement. A related question
tion and unit claims. Moreover, the ruling of the board of adjustment, with respect to
field survey work, and agreements reached between the Union and the AGC defining or
otherwise pertaining to such work, as will more particularly appear later, cannot foreclose
or detract from the exercise of rights guaranteed such technical engineers by the Act.
Because of similar considerations of materiality, I have also not made findings with re-
spect to evidence (see Charging Party's Exhibit No. 1) dealing with descriptions of the
surveying and engineering professions, particularizations of the types of services rendered
by surveyors and engineers, professional societies to which they belong, and statutory
licensing provisions applicable to them.
20 Plumbing Contractors Association of Baltimore, Maryland, Inc., 93 NLRB 1081, 1087,
1088. Although the Union cites this case as supporting its.position, it may be noted that
the Board, in its decision (p. 1088), pointed out that Section 8 (b) (4) (D) forbids
"certain types of economic action by unions," In given situations, to secure an assignment
of "work tasks."
476321-58-vol. 119---68
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is presented by a contention, advanced by the AGC in its brief, that the clause "con-
stitutes an agreement by the general contractors and builders covered" by the 1955
Master Agreement "to refrain from doing business in the future with subcontractors
who will not agree to observe the terms of the Master Agreement," and, "as such, it
involves no unlawful interference, restraint or coercion as to the employees of sub-
contractors who will not or cannot agree to such conditions." The Union, although
not explicating its position in those terms, appears to take a similar view.
As support for their positions, both the Union and the AGC rely upon L.'eating,
Piping and Air Conditioning Contractors New York City Association, Inc., 102
NLRB 1646. In that case, the Board held that a union and an employer's associa-
tion had violated the Act by "continuing" provisions of a contract, "as implemented
by the rules of a joint adjustment board (established under a prior agreement),
which granted illegal preferential hiring rights to members" of the union. The
Board also considered the legality of an interpretation of the collective-bargaining
agreement by the joint adjustment board to the effect that the agreement required
members of the association "to have their radiator enclosures fabricated by com-
panies who hired members" of the union. The Board's decision (adopting applicable
findings of the Trial Examiner) indicates that the union had made attempts (which
are not detailed in the Intermediate Report) to have a member of the Association
cease doing business with a given fabricator (apparently because the latter did not
employ members of the union). After declaring the preferential hiring arrangement
between the union and the association to be invalid, the Board said:
Like the Trial Examiner, we do not find an additional or an independent viola-
tion of the above sections of the Act, because the contract was interpreted by
the joint adjustment board to require members of the Heating Contractors Asso-
ciation to have their radiator enclosures fabricated by companies who hired
members of a local affiliated with the Sheet Metal Workers International Asso-
ciation. For an employer to refrain, or agree to refrain at a union 's request,
from doing business with another employer with whom he has no current con-
tractual relations or business dealings involves no unlawful interference,
restraint, or coercion as to the employees of the nonunion firm within the con-
templation of Section 8 (a) (1) or 8 (b) (1) (A). The General Counsel's
contention that this conduct was violative of Section 8 (b) (2) rests on no firmer
ground. It is based upon assumptions entirely too speculative and too remote
to sustain the requisite burden of proof for finding a violation of these sections.
One must assume that in reaching its decision in the cited case, the Board took
into account the well-settled doctrine that evidence that employees have been in
fact intimidated or coerced by an employer is not a precondition of a finding that
given conduct by him has violated Section 8 (a) (1); and that "the test is whether the
employer engaged in conduct which, it may reasonably be said, tends to interfere
with the free exercise of employee rights under the Act" [emphasis supplied] 21 In
the light of that test, I think that the basis for the Board's conclusions in the Heating,
Piping and Air Conditioning case, quoted above, was that there was no substantial
evidence by which it could measure the reasonably foreseeable tendency of the con-
duct there involved to abridge the statutory guarantees of employees. That appears
to be the import of the Board's assertion that the allegations involved rested upon
"assumptions entirely too speculative and too remote to sustain the requisite burden
of proof for finding a violation of these sections." 22 In contrast, the claim that the
current subcontractors' clause violates the Act does not rest upon such "assumptions,"
but, as will presently appear, upon substantial evidence which warrants different
results from those reached in the cited case.
Members of the AGC, in the aggregate, perform "more than 90 percent of the
major heavy, highway, engineering and building construction work in the 46-county
area." 23 They customarily subcontract a substantial portion of the construction
work for which they are responsible to so-called specialty contractors. This practice
is of long standing; is a fundamental characteristic of the building and construction
industry in the area; and is necessary for the efficient and economical performance of
21 N. L. it. 13. v. Ford Brothers, 170 F. 2d 735 (C. A. 6), and cases cited.
23 Although the quoted language was used in dealing with the allegation that the labor
organization had violated Section 8 (b) (2), it is evident from the use of the word
"sections," and the general context of the decision, that the statement also embraced the
allegations made against the employers involved.
21 Some indication of the extensive scope of the operations of members of the AGC
may be found in the fact that the combined cost of 10 such major projects now under
way amounts to $222,100,000 (see AGC's Exhibit No. 5).
NORTHERN CALIFORNIA CHAPTER 1059
work in the industry. When performing subcontracts, such specialty contractors
are independent contractors, and not employees, "although the general contractor
is required on public projects to assume responsibility for certain of the employment
policies and other activities of his subcontractors." Engineering firms, which per-
form field survey work, are among the many varied types of specialty contractors
identified with the building and construction industry. Some general contractors
have a sufficient volume of "engineering and field survey work during the year to
justify the regular employment of one or more. professional engineers and one or
more field survey crews," although such contractors also have occasion, because of
various factors, to subcontract such work. Other general contractors "require the
services of professional engineers and field survey crews only when they are the
successful bidders for one of the relatively few projects which require the general
contractor to perform engineering and field survey work." These general contrac-
tors "frequently" subcontract the field survey and engineering phases of their projects
to independent engineers or engineering firms. "Approximately 66 percent of the
professional engineering and field survey work performed by general contractors in
the 46-county area is subcontracted to independent engineers or engineering firms,"
and over "90 percent of the field survey work performed for general contractors in
the area is performed for regular members of one or the other of the AGC
Associations." 24
Putting these statistical facts aside for the time being, it is evident that to comply
with the subcontractors clause, Musser and other members of the Western Associa-
tion must recognize and acknowledge the Union as the collective-bargaining repre-
sentative of technical engineers in their employ, while such employees are engaged
in performing work tinder a subcontract subject to the clause, and must impose
upon them the terms and conditions of the 1955 Master Agreement, including
the requirement that, as a condition of employment, they "apply for and become
members of, and maintain membership in, the Union within thirty-one . . days
following the beginning of their employment. . . But such compliance is
obviously forbidden, as a matter of law, as Musser in effect pointed out in its
letter of July 15, 1955, declining an offer of a subcontract from Parker conditioned
upon compliance with the clause, for the technical engineers in question are rep-
resented exclusively by the Engineers and Scientists, by force of the certification
issued by the Board, and under the express terms of Section 8 (a) (5) of the Act,
Musser and other members of the Western Association must recognize and bar-
gain with the Engineers and Scientists as the representative of such employees and,
as a necessary corollary, must abstain from recognizing and bargaining with the
Union as the representative of the employees. However, AGC members have com-
mitted themselves by agreement with the Union to require such compliance and,
by clear implication, to refuse to award subcontracts to subcontractors if they
refuse to comply. Put another way, AGC members have in effect committed them-
selves to award subcontracts for field survey work to Musser or any other member
of the Western Association only if these specialty contractors agree to violate the
Act with respect to their technical engineers while the latter are engaged in per-
forming such subcontracts. The very nature of the commitment, in the face of
the legal obligations imposed upon Western Association members, and against
the background of the statistical facts set out above, is such as to lead to denials,
cn a substantial scale, of opportunities for the performance of field survey work
in the 46-county area by technical engineers in the employ of such members.
That this conclusion is neither "speculative" nor "remote" is evidenced by Musser's
experience both with the current subcontractors' clause and comparable provisions
of prior contracts between the Union and the AGC. Musser's technical engineers
were prevented from working at the Travis project for a period of approximately
3 months as a direct consequence of the existence and attempted application of the
subcontractors' clause of the 1954 Master Agreement, and it may be noted that this
denial of employment to them at the project continued for a substantial period
after the current subcontractors' clause went into effect, and that they were per-
mitted to resume their employment only after the Board entered the cease and
desist order against the Union in Case No. 20-CC-109, described above. What
is more , as the parties have stipulated, but for the inclusion of one subcontractors'
clause or another in agreements between the Union and the AGC in effect during
the period between July 17, 1952, and July 21, 1955, and advice given Parker by
"duly authorized representatives" of the Northern California AGC that such clauses
"were binding upon (it) and would be enforced by the . . . parties" thereto,
2 Findings' in the above paragraph , including the quoted statements made therein, are
based on stipulated facts contained in AGC's Exhibit No. 5.
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Parker would have awarded subcontracts to Musser for field survey work, during
the period, on 13 different projects in Northern California. Had Musser performed
the subcontracts, its proceeds from such performance would have amounted, in the
aggregate, to approximately $110,000. The most recent occasion when Parker
withheld the award of a subcontract from Musser occurred after the current clause
went into effect, and was based upon the existence of the clause and Musser's refusal
to accept the condition that he comply with it. Obviously, the denials of these sub-
contracts to Musser had the direct effect of preventing its technical engineers, so long
as they remained in Musser's employ, from working at the projects affected.
To assert that it was Musser who, by refusing to comply with the subcontractors'
clause, had operative responsibility for the denial of opportunities for its tech-
nical engineers to work at the projects affected is to blind one's self to realities.
As pointed out above, members of the AGC are in effect committed to withhold
subcontracts for field survey work from Musser unless it agrees to comply with
the subcontractors' clause. Musser, as already noted, cannot lawfully comply with
it. Thus, if it is to honor its legal obligations, it is necessarily driven to decline
to accept subcontracts from AGC members conditioned upon compliance with the
clause. I think it evident that in refusing to accept subcontracts so conditioned,
and thereby denying its technical engineers opportunities to work at the projects
affected, Musser's conduct was rooted in the existence of the subcontractors' clause,
and was but the instrument by which the clause was given its foreseeable effect.
In that connection, it is significant that the Union, which may be assumed to have
special knowledge of the intended impact of the clause, in effect visualizes it as
operating to deny job opportunities to employees of dissident specialty contractors
such as Musser. As noted earlier, the Union takes the position that "the effect
of the subcontractor clause is to make available the maximum number of job op-
portunities to the employees covered by the contract" (between the Union and the
AGC). The "employees covered by the contract" are, of course, those the Union
represents. The Union's description of "the effect" of the current subcontractors'
clause is but another way of saying that "the effect" is to deny job opportunities
to employees fitting the classifications set forth in the 1955 Master Agreement
unless such employees are represented by the Union. In sum, it is unrealistic to
view the clause as a mere arrangement whereby an employer, at a union's instance,
undertakes to refrain from doing business with another employer. The thrust of
the clause goes beyond its borders, for it has resulted in a denial of employment
opportunities to employees, and it is reasonably foreseeable that its existence will
exclude technical engineers in the employ of Musser or other members of the West-
ern Association from much of the opportunities for the performance of field survey
work available in the 46-county area during the term of the 1955 Master Agree-
ment. It is these clear indications of a coercive thrust in the subcontractors'
clause, when viewed against the economic background of the construction industry
in the 46-county area, which operate, in my judgment, to make the Board's con-
clusions in the Heating, Piping and Air Conditioning case, quoted above, inappli-
cable to this proceeding.
A claim that the clause does not abridge the statutory guarantees of technical
engineers in the employ of Musser or other members of the Western Association,
in the absence of the actual application of the terms of the 1955 Master Agreement
to these employees, not only overlooks the actual and reasonably foreseeable impact
upon the job opportunities of such employees. but ignores the rule that evidence
of actual intimidation or coercion of employees is not a necessary prerequisite of
a finding that given conduct by an employer abridges the statutory guarantees of
employees; and that, as noted earlier, "the test is whether the employer engaged
in conduct which, it may reasonably be said, tends to interfere with the free'exer-
cise of employee rights under the Act" [emphasis supplied]. The test has clear.
application here. Viewed realistically, what the Union and the AGC have. done
in agreeing to the current subcontractors' clause, when read in the light of the
other provisions of the 1955 Master Agreement, is to establish terms and condi-
tions of employment for employees such as the technical engineers mentioned above,
who are not properly within the reach of the bargaining unit described in the 1955
Master Agreement, and whom the Union has no lawful authority to represent.
Thus viewed, the conduct of the AGC does not differ significantly from that of
an employer who conditions the employment of his employees, or applicants for
employment, upon their membership or interest in, or representation by, a labor
organization which has no lawful right to represent them. Such conduct-would
undoubtedly be unlawful. To be sure, there is no employment relationship
in a legal sense between AGC contractors and the technical engineers under con-
sideration, but to consider that decisive is to ignore the reality that such contractors
have potent power to deny such employees job opportunities, as Parker has done,
NORTHERN CALIFORNIA CHAPTER 1061
by withholding subcontracts from their employers, unless the latter agree to comply
with the clause, or, as at the Travis construction site, by excluding technical engi-
neers in the employ of dissident subcontractors from projects for which the con-
tractors have contractual responsibility.
Against the background of such power, the coercive thrust of the clause is evident
with respect to employees of the type under discussion. If their employer com-
plies with the clause, their statutory guarantees are abridged; if he refuses, as has
Musser, thereby observing his responsibilities under the Act, the technical engineers
in his employ are denied opportunities to work at the projects involved. The in-
hibiting force of the clause is underscored by the fact that, in the final analysis,
AGC members have the power to prevent such technical engineers, while in the
employ of members of the Western Association, from performing field survey work
at more than 90 percent of the projects undertaken by general contractors in the
46-county area requiring such work. In sum, I am led to the conclusion that the
natural tendency of the clause is to encourage membership of such technical engi-
neers in the Union, a labor organization not of their choice, and to discourage their
membership in the Engineers and Scientists, a labor organization which they have
freely chosen to represent them; and that the existence of the clause "tends" to
interfere with, restrain, and coerce such technical engineers in the free exercise of
the rights guaranteed them by Section 7 of the Act.
Viewing the record as a whole, I find that by agreeing to and maintaining the
subcontractors' clause of the 1955 Master Agreement, the AGC Associations have
been, and are, interfering with, restraining, and coercing employees in the exercise
of rights guaranteed them by Section 7 of the Act, and thereby have been, and
are, violating Section 8 (a) (1) of the Act; and the Union has been, and is, restrain-
ing and coercing employees in the exercise of such rights, and thereby has been,
and is, violating Section 8 (b) (1) (A) of the said Act.
The General Counsel contends that by maintaining the subcontractors ' clause, con-
sidered without reference to the union-security provisions, the AGC is discriminat-
ing, in violation of Section 8 (a) (3), against employees who are not properly
within the reach of the bargaining unit described in the 1955 Master Agreement,
and the Union is attempting to cause such discrimination, thereby violating Section
8 (b) (2). A separate finding is also sought by the General Counsel that the union-
security provisions, by force of the subcontractors clause, are similarly violative
of Section 8 (a) (3) and 8 (b) (2).25 With respect to such employees, the language
of Section 8 (a) (3) itself, and some well-established principles interpreting the
section, govern the resolution of the relevant issues.
Section 8 (a) (3) forbids "discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment to encourage or discourage member-
ship in any labor organization"; but contains a proviso which states, in part, "that
nothing in this Act . . shall preclude an employer from making an agreement
with a labor organization . to require as a condition of employment member-
ship therein on or after the thirtieth day following the beginning of such employ-
ment or the effective date of such agreement, whichever is later, . if such labor
organization is the representative of the employees as provided in Section 9 (a),
in the appropriate collective bargaining unit covered by such agreement when made"
[emphasis supplied]. As the Board has held, "the statute, read literally, precludes
any employer from discriminating with respect to any employee, for Section 8 (a)
(3) does not limit its prohibitions to acts of an employer vis-a-vis his own em-
ployees" (Austin Company, 101 NLRB 1257).26 Thus the circumstance that there
is no employment relationship between AGC contractors and technical engineers in
the employ of members of the Western Association does not preclude a finding
that the subcontractors' clause discriminates against such employees or that the
union-security provisions, by force of the clause, are similarly discriminatory. More-
over, the fact that there is no evidence that any subcontractor is actually com-
plying with the clause, thereby subjecting his employees to the union-security pro-
visions or any other terms of the 1955 Master Agreement, is not decisive of the
contentions of the General Counsel under consideration. The mere execution by
an employer and a union of an agreement containing unlawful union-security pro-
visions constitutes a violation of Section 8 (a) (3) by the employer, and of Sec-
25 The relevant issue does not. involve , and I do not pass upon , the legality of the union-
security provisions as they apply to employees who are represented by the Union and in
the employ of any employer represented by the AGC in signing the 1955 Master Agreement.
2° See, also , F. F. Shuck Construction Co ., 114 NLRB 727, and West Texas Utilities
Company, 108 NLRB 407.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 8 (b) (2) by the union.27 The reason for the rule is that the inclusion of the
provisions in the agreement "is a form of discrimination in a condition of employ-
ment which tends to `encourage or discourage membership in any labor organi-
zation' "; 2fl and that by entering into the agreement, the union is joining with the
employer "in creating conditions which would result in future discrimination," 29 and
is thus attempting to cause the employer to discriminate.
That this doctrine and its underlying reasons are applicable to the union-security
provisions and the subcontractors' clause is made clear by the Supreme Court's
decision in Radio Officers' Union, etc. v. N. L. R. B., 347 U. S. 17. Construing the
proviso of Section 8 (a) (3), the Court said: "Thus an employer can discharge an
employee for nonmembership in a union if the employer has entered a union security
contract valid under the Act with such union, and if the other requirements of the
proviso are met. No other discrimination aimed at encouraging employees to join,
retain membership, or stay in good standing in a union is condoned" [emphasis
supplied]. And applying "the common law rule that a man is held to intend the
foreseeable consequences of his conduct," the Court also pointed out that "specific
evidence of intent to encourage or discourage membership in a labor organization
is not an indispensable element of proof of violation of Section 8 (a) (3)." 30
Clearly, the union-security provisions and the subcontractors' clause do not meet
"the requirements of the proviso" with respect to technical engineers in the employ
of members of the Western Association, for these employees are not within the reach
of the bargaining unit defined by the 1955 Master Agreement, and are not repre-
sented by the Union, but by another labor organization. As already noted, the sub-
contractors' clause, viewed realistically, in effect establishes terms and conditions of
employment, including compliance with the union-security provisions, for employees
such as the technical engineers mentioned above, and employers represented by the
AGC have potent and effective power to exclude such employees from job oppor-
tunities. Thus considered, the clause, whether or not it is considered in conjunction
with the union-security provisions, constitutes "a form of discrimination in a con-
dition of employment which tends" to encourage membership by such technical
engineers in the Union and to discourage their membership in any other labor
organization. This conclusion is applicable a fortiori to the union-security provisions.
Accordingly, whether or not one takes the union-security provisions into account, by
agreeing to and maintaining the current subcontractors' clause, the AGC Associa-
tions have violated, and are violating, Section 8 (a) (1) and 8 (a) (3) of the Act,
and the Union has attempted, and is attempting, to cause the AGC Associations
and their regular members to discriminate against employees in violation of Section
8 (a) (3), and has thereby violated, and is violating, Section 8 (b) (1) (A) and 8
(b) (2) of the said Act. Similarly, by agreeing to and maintaining the union-
security provisions, considered in conjunction wth the subcontractors' clause, the
AGC Associations have violated, and are violating, Section 8 (a) (1) and 8 (a) (3)
of the Act, and the Union has attempted, and is attempting, to cause the AGC Asso-
ciations and their regular members to discriminate against employees in violation of
Section 8 (a) (3), and thus has violated, and is violating, Section 8 (b) (1) (A) and
8 (b) (2). Moreover, bearing in mind that the subcontractors' clause and the
union-security provisions unlawfully tend to encourage membership in the Union
by employees such as technical engineers in the employ of members of the Western
Association, the AGC Associations have contributed, and are contributing, support
to the Union by agreeing to and maintaining the union-security provisions, con-
sidered in conjunction with the subcontractors clause, and by agreeing to and main-
taining the latter, whether or not the union-security provisions are taken into account,
and have thus violated, and are violating, Section 8 (a) (2) of the Act.
er The Great Atlantic & Pacific Tea Company, 81 NLRB 1052; Jones & Laughlin Steel
Corporation, at at., 83 NLRB 916; New York State Employers Association, Inc., et at.,
93 NLRB 127, enfd. 196 F. 2d 78 (C. A. 2) ; Heating, Piping and Air Conditioning Con-
tractors, etc., 102 NLRB 1646; and Acme Mattress Co., Inc., 91 NLRB 1010, enfd. 192
F. 2d 524 (C. A. 7).
28 The Great Atlantic & Pacific Tea Company, supra, at p. 1055.
21 Acme Mattress Co., Inc., supra, at p. 1013.
"I The Court also noted that "it is common experience that the desire of employees to
unionize is raised or lowered by the advantage thought to be attained by such action" ;
that the Act does not "require that the employees discriminated against be the ones
encouraged for the purposes of violation of Section 8 (a) (3)" ; and that the Act does not
"require that this change in employees' 'quantum of desire' have immediate manifestations."
NORTHERN CALIFORNIA CHAPTER 1063
The General Counsel views the subcontractors' clause, both with and without
reference to the union-security provisions, as an attempt by the Union, in violation
of Section 8 (b) (2), to cause Musser and other members of the Western Association
to discriminate against their employees . He also advances a similar contention with
respect to the union-security provisions. As support for these positions, he cites
Carrier Corporation, 112 NLRB 1385. Briefly summarized, the ultimate operative
facts there were that Carrier Corporation, the prime contractor on a project, sub-
contracted some of the work to Turner Transfer, Inc.; that a union demanded that
Turner employ individuals who were members of the union in the performance
of the subcontract instead of members of another labor organization, whom
Turner had hired; and that upon Turner's refusal to comply, the union that made
the demand caused a work stoppage by Carrier's employees in order to cause Carrier
to terminate the subcontract, unless Turner complied with the union's discriminatory
objective. The Board viewed the work stoppage as an "indirect type of pressure
calculated to force Turner through Carrier to engage in discriminatory conduct."
Concluding that Section 8 (b) (2) "proscribes indirect pressure of this character as
well as direct pressure to induce employee discrimination," and that the work stop-
page called against Carrier constituted an attempt to cause Turner to discriminate
against its employees, the Board pointed out that "the test is not whether the pressure
is direct or indirect, but whether it is intended to cause a violation of Section 8 (a)
(3) and whether it is reasonably calculated to bring about that result."
The analogy the General Counsel seeks to draw is faulty. The basic difficulty
with his thesis is that there is no evidence that since the 1955 Master Agreement went
into effect, the Union has brought any pressure, whether "direct" or "indirect," to
bear upon contractors represented by the AGC, or upon any members of the Western
Association, in an attempt to cause members of the latter organization to discriminate
against, their employees. (The work stoppage at the Travis project occurred, and
the board of adjustment ruling was made, while the 1954 Master Agreement was in
effect.) To be sure, Parker withheld a subcontract from Musser as a consequence of
the existence of the current subcontractors' clause, but it is clear that the clause does
not constitute the type of pressure the Board had in mind in the Carrier case. To
hold that it does, it seems to me, is to resort to a semantic conversion of terms to
arrive at a desired result rather than to give words their generally accepted meaning.
As found above, the Union is attempting to cause discrimination, by force of the
existence of the union-security provisions and the subcontractors' clause, but that
attempt is directed to the AGC, and derives from the fact that by executing the 1955
Master Agreement, the Union has joined with the AGC "in creating conditions which
would result in future discrimination" against employees who are not properly within
the reach of the bargaining unit described in the 1955 Master Agreement, whether
or not such employees are in the employ of any members of the Western Association.
As the evidence does not warrant a finding that by agreeing to and maintaining the
union-security provisions and the current subcontractors' clause the Union has at-
tempted, or is attempting, to cause Musser and other members of the Western Asso-
ciation to discriminate against employees, I shall recommend below that the allega-
tions pertaining to the General Counsel's claim under consideration be dismissed.
The remaining question is whether the Union and the AGC violated the Act
with respect to the exclusion of Musser's technical engineers from the Travis pro-
ject. In that connection, it should be borne in mind that the subcontractors'
clause of the 1954 Master Agreement was unlawful for much the same reasons
applicable to the current clause; 31 and that the objective of the work stoppage
ffi That conclusion is unaffected by the fact that the 1954 Master Agreement did not
include union-security provisions similar to those of the current agreement ; or by the
circumstance that the present subcontractors' clause, unlike the earlier one, defines the
meaning of the word "subcontractor," and requires an employer subject to the contract
between the Union and the AGC to make provision in his subcontracts for observance by
the subcontractors of the terms of the collective bargaining agreement. Although the
complaint does not in terms allege that the earlier clause violated specific provisions of
the Act because, as the General Counsel explained at the hearing, the contract containing
the clause has expired, a determination of the legality of the clause, as the General Counsel
also asserts, is appropriate. What should be borne in mind, in that regard, is that the
complaint substantially alleges, in ultimate effect , that the alleged discrimination was an
outgrowth of the existence and attempted application of the clause , and was continued as
a result of the ruling of the board of adjustment, established under the terms of the
1954 Master Agreement, which interpreted and applied the applicable provisions of that
contract.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called by the Union was to bring economic pressure to bear upon the Joint Venture
to compel compliance with the subcontractors ' clause then in effect. As the clause
was discriminatory , the work stoppage was calculated to achieve a discriminatory
objective . Passing for the moment the question of the AGC 's responsibility in
the premises , there can be no doubt that the Union and the Joint Venture caused
the exclusion of Musser 's employees from the project , the Union by calling the
work stoppage ; and the Joint Venture by yielding to the Union 's economic pressure
and directing Musser to suspend performance of its subcontract and to withdraw
its employees from the project . In that regard , it is immaterial that there is no
evidence that the Union specifically requested the Joint Venture to exclude Musser's
employees from the project . A commitment by AGC contractors to deny sub-
.contracts to dissident or noncomplying subcontractors was implicit in the clause,
.and the direction by the Joint Venture to Musser that it withdraw its employees was a
foreseeable consequence of the work stoppage.
The AGC must also share responsibility for the exclusion of Musser 's employees,
for it is evident that the Joint Venture 's conduct was rooted in the existence of the
subcontractors ' clause and was but an implementation of the clause , to the observ-
ance of which it had been committed by the AGC.32 Moreover , the ruling of
.the board of adjustment , which was made about 9 days after the Joint Venture
.directed Musser to withdraw its employees, is an additional reason for imputing
responsibility in the matter to the AGC , as well as the Union , at least from the
time the ruling was made.33 In effect, what the board of adjustment did was to
ratify the Union 's position that the terms of the 1954 Master Agreement were bind-
ing upon Musser and applicable to its employees ; direct Musser " to bring into
.and maintain the job in compliance with the Master Agreement "; and vest the Joint
Venture with authority to determine the "means or methods" of effecting such
'compliance . Plainly, the "means and methods" employed by the Joint Venture,
following the ruling, were to pursue its previous course of performing the field sur-
vey work with its own employees , who were subject to the 1954 Master Agreement,
.thereby continuing to deny employment at the project to Musser 's field survey
.workers , until immunized from pressures such as the work stoppage by the entry of
the cease and desist order against the Union by the Board , described earlier. It
would be error to divorce the Union and the AGC from responsibility for the
ruling , for the determination rested upon , and stemmed from, the 1954 Master
Agreement , and was made , as the contract contemplates , and the ruling states, by
"representatives" of the Union , and an equal number of the AGC's
"representatives." 34
For reasons pointed out by the Board in the Austin case , cited earlier , the absence
. of an employment relationship between the Joint Venture or the AGC and Musser's
field survey workers does not preclude a finding that the Joint Venture and the AGC
discriminated against these employees , and that the Union caused the discrimina-
tion. Nor is it a controlling circumstance that Musser's subcontract did not in
.terms vest the Joint Venture with authority to suspend or discontinue the employ-
ment of the technical engineers at the project . The Joint Venture controlled, and
was responsible for, the performance of its contract with the United States Army
Corps of Engineers , and plainly had the power ( putting aside the legality of its exer-
cise) to exclude Musser and its employees from any role in the performance of
the contract . It chose to assert that power, thus vetoing the right of Musser's tech-
32 See E . F. Shuck Construction Co., 114 NLRB 727.
w Although the factors pointed out above are sufficient to lodge responsibility for the
exclusion of Musser 's employees from the project in the AGC , as well as in the Joint
Venture and the Union , it may be noted that Mr. Stanton who issued the instructions to
Musser on behalf of the Joint Venture is also counsel for the AGC , and that on the day
preceding the instructions , he advised the Joint Venture , acting as counsel for the AGC,
that the subcontractors ' clause "was binding" upon the Joint Venture. I think it a fair
inference that the advice was a factor in the Joint Venture's decision to yield to the
Union's pressure by instructing Musser to withdraw its employees from the project. Be
that as it may, as indicated above, it is unnecessary to rest a determination that the AGC
was responsible for the exclusion of Musser ' s field survey workers on the advice given by
the AGC , through counsel , to the Joint Venture.
34 The term "Employer representatives ," used in the ruling, obviously means the -AGC's
"representatives ." In that regard , it may be noted that section 1 of. the 1954 Master
.Agreement defines the term "Employer" as meaning the AGC Associations "and such other
.employer organizations and employers who are not members of any such employer organi-
zations as are listed " in a schedule appended to the contract.
NORTHERN CALIFORNIA CHAPTER ' 1065
nical engineers to work at the Travis project free of inhibiting conditions in effect
established for them by force of the subcontractors ' clause, the Union 's demands;,
and the ruling of the board of adjustment. From what has been said, I am led to
the conclusion that the exclusion of Musser's technical engineers from the Travis
project from May 10, 1955, to August 15, 1955, was the product of discrimination
against them by the Joint Venture and the AGC, within the meaning of Section
8 (a) (3), and that the Union caused such discrimination.35
Upon consideration of the whole record, I find that as a result of the exclusion,
by the Joint Venture of Musser's employees, Edward A. Liss, Pierre Aldax, Dean
M. Coats, and Edward J. Kresinski from employment at the Travis project, and the'
ruling of the board of adjustment, the foreseeable result of which was a con-
tinuance of the exclusion of these employees from such employment, the AGC asso-
ciations discriminated against the named employees in regard to the tenure of their
employment in violation of Section 8 (a) (3) of the Act; contributed support to
the Union in violation of Section 8 (a) (2); and , in contravention of Section 8 (a)
(1), interfered with, restrained, and coerced employees in the exercise of rights
guaranteed them by Section 7 of the Act. I also find that by reason of the work
stoppage called by the Union to secure compliance with the subcontractors' clause
and, thereby, application of the terms of the 1954 Master Agreement to Musser's
employees, and of the ruling of the board of adjustment, the Union caused the
Joint Venture and the AGC Associations to discriminate again employees, as found
above, and attempted to cause Musser to discriminate against its employees in
violation of Section 8 (a) (3); 36 and that as a result of each of such acts, the,
Union violated Section 8 (b) (2), and restrained and coerced employees in violation
of Section 8 (b) (1) (A).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The respective activities of the Respondents set forth in section III, above , occurring
in connection with the operations of the AGC Associations , and their members,:
described in section I, above, have a close, intimate , and substantial relation to
trade, traffic, and commerce among the several States and tend to lead to labor.
disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the AGC Associations have violated Section 8 (a) (1), 8 (a)
(2), and 8 (a) (3) of the Act, and that the Union has violated Section 8 (b) (1) (A)
and 8 (b) (2) of the said statute, I shall recommend below that the Respondents,
cease and desist from their respective unfair labor practices and take certain affirma
tive action designed to effectuate the policies of the Act.37
Having found that the AGC Associations discriminated in regard to the tenure of
employment of Edward A. Liss, Pierre Aldax, Dean M. Coats, and Edward J.
Kresinski at the Travis Air Force Base from May 10 to August 15, 1955, and that
85 See Austin Company, supra ; E. F. Shuck Construction Co., supra; and West Texas
Utilities Company , supra.
36 The work stoppage was an "indirect " form of pressure , within the meaning of the
Carrier case, to comnel compliance with the subcontractors' clause and the application of
the terms of the 1954 Master Agreement to Musser 's employees . As the employees were
plainly the target of a discriminatory objective , the stoppage was an attempt to cause
Musser to discriminate . The Union 's participation , through Its representatives, in the
board of adjustment ruling stands on no different footing , particularly if it be borne in
mind that the ruling vested the Joint Venture with authority to determine the "means or
methods" to secure Musser's compliance with the Master Agreement.
37 The caption of the complaint joins the "regular members" of the AGC Associations
as parties, and some of the complaint's allegations impute violations of the Act to such
"regular members ." However , none of these, except the contractors constituting the
Joint Venture, are identified by name in the complaint (although so identified in various
documentary exhibits ), and there is no evidence that any of the "regular members" have
been . served with copies of the complaint or the notice of hearing . In the absence of such
evidence , as a matter of law, not to speak of fairness , it would be inappropriate to make,
any findings ( with one exception to be noted below ) that such "regular members" have
violated the Act, or to prescribe any remedy with respect to them. The one exception Is.
the finding that the Joint Venture discriminated against Musser 's employees , but that, by
force of the terms of Section 8 (b) (2), is an ingredient of the finding that the Union,
caused the Joint Venture to discriminate , and should be given only that limited effect.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union caused such discrimination , I shall recommend below that the AGC
Associations and the Union jointly and severally make each of these individuals
whole for any loss of pay he may have suffered, by reason of such discrimination,
by payment to him of a sum of money equal to the amount of wages he would have
earned but for his exclusion from employment at the Travis Air Force Base, as
found above, during the period from May 10 to August 15, 1955. Loss of pay for
each such individual shall be computed on the basis of each separate calendar
quarter or portion thereof during the period aforesaid. The said quarterly periods
are those which began, respectively, on April 1 and July 1, 1955. The loss of pay
for each such individual shall be determined by deducting from the sum he would
have earned, but for his exclusion from employment at the Travis Air Force Base, in
each such quarter or portion thereof, his net earnings,38 if any, in any other employ-
ment during that period . Earnings in one quarter shall have no effect upon the
back-pay liability for any other quarter 39
Upon the basis of the foregoing findings of fact, and of the entire record in this
proceeding, I make the following:
CONCLUSIONS OF LAW
1. The AGC Associations and their regular members, are, and each of them is,
an employer within the meaning of Section 2 (2) of the Act.
2. Musser is an employer within the meaning of Section 2 (2) of the Act.
3. The Union and Engineers and Scientists are, respectively, labor organizations
within the meaning of Section 2 (5) of the Act.
4. By discriminating in regard to the tenure of employment of Edward A. Liss,
Pierre Aldax, Dean M. Coats, and Edward J. Kresinski, as found above, the AGC
Associations have engaged in unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
5. By causing the Joint Venture and the AGC Associations to discriminate in
regard to the tenure of employment of the said employees, and by attempting to cause
Musser so to discriminate , as found above , the Union has engaged in unfair labor
practices within the meaning of Section 8 (b) (2) of the Act.
6. By agreeing to and maintaining section No. 12 of the 1955 Master Agreement,
as found above, the AGC Associations have engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (a) (1), 8 ( a) (2), and 8 (a) (3)
of the Act.
7. By agreeing to and maintaining that portion of section No. 3 of the 1955 Master
Agreement described herein as the union-security provisions, as found above, the
AGC Associations have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (a) (1), 8 (a) (2), and 8 (a) (3) of the Act.
8. By agreeing to and maintaining section No. 12 of the 1955 Master Agreement,
as found above, the Union has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (b) (1) (A) and 8 (b) (2) of the Act.
9. By agreeing to and maintaining that portion of section No. 3 of the 1955
Master Agreement described herein as the union-security provisions, as found above,
the Union has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (b) (1) (A) and 8 (b) (2) of the Act.
10. By contributing support to the Union, as found above, the AGC Associations
have engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (2) of the Act.
11. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act, as found above, the AGC Associations
have engaged in and are engaging in unfair labor practices within the meaning of
Section 8 ( a) (1) of the Act.
12. By restraining and coercing employees in the exercise of rights guaranteed
them by Section 7 of the Act, as found above, the Union has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A)
of the Act.
13. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and 2 (7) of the Act.
ffi See Crossett Lumber Company, 8 NLRB 440, for the applicable construction of "net
earnings."
89 I have omitted a requirement that the Respondents preserve and make available to
the Board , upon request , records such as payrolls , timecards , and social -security data.
Although such a requirement is customary in cases Involving back pay , I see no point in
Including such a provision here, since it is obvious that the Union and the AGC would
have no such data in their possession pertaining to Musser 's employees.
PITTSFIELD SHOE COMPANY, INC. 1067
14. By agreeing to and maintaining section No. 12 of the 1955 Master Agreement,
and that portion of section No. 3 of the said contract described herein as the union-
security provisions, the Union has not attempted to cause Musser or any other
member of the Western Association to discriminate against employees in violation
of Section 8 (a) (3) of the Act.
[Recommendations omitted from publication.]
Pittsfield Shoe Company , Inc. and United Shoe Workers of Amer-
ica, AFL-CIO, Petitioner. Case No. 1-RC--5078. December 16,
1957
DECISION AND CERTIFICATION OF REPRESENTATIVES
Pursuant to a stipulation for certification upon consent election,
dated September 30, 1957, and approved October 1, 1957, an election
was conducted on October 9,1957, under the direction and supervision
of the Regional Director for the First Region, among employees at
the Employer's Pittsfield, New Hampshire, plant. At the conclusion
of the election, the parties were furnished a tally of ballots which
showed that of approximately 133 eligible voters, 127 cast ballots, of
.which 63 were for Petitioner and 60 were against. There were two
challenged ballots, a. number insufficient to affect the results of the
election. Two ballots were void.
On October 14,1957, the Employer filed timely objections to conduct
affecting the results of the election. In accordance with the Rules
and Regulations of the Board, the Regional Director conducted an
investigation of the objections and, on November 4, 1957, issued and
served on the parties his report on objections, in which he found that
the Employer's objections did not raise substantial or material issues
with respect to conduct affecting the results of the election, and recom-
mended that the objections be overruled. Thereafter, the Employer
timely filed exceptions to the Regional Director's report and moved
that the election be set aside and a new election ordered.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Jenkins].
The Board has considered the Regional Director's report and the
Employer's exceptions, and upon the entire record in this case finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Petitioner is a labor organization claiming to represent
certain, employees of the Employer.
. 3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
1.19 NLRB No. 127.