Operating Engineers Local 3 (Stukel Rock)

National Labor Relations Board - Board Decisions

Aug 10, 1984

271 N.L.R.B. 921 (N.L.R.B. 1984)

OPERATING ENGINEERS LOCAL 3 (STUKEL ROCK)
Operating Engineers Local Union No. 3 of the Inter-
national Union of Operating Engineers, AFL-
CIO; and Associated General Counsel Contrac-
tors of California, Inc. and Stukel Rock &
Paving, Inc., and Custom Rock Products, Inc.
Case 32-CE-39
10 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 2 April 1984 Administrative Law Judge
George Christensen issued the attached decision.
The Respondent Union filed exceptions and a sup-
porting brief, and the counsel for the General
Counsel filed an opposition to the Union's excep-
tions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent Associated
General Contractors of California, Inc., and its af-
filiated Contractor-Employers, Oakland, California,
its officers, agents, successors, and assigns, and Re-
spondent Operating Engineers Local Union No. 3
of the Internatinal Union of Operating Engineers,
AFL-CIO, San Francisco, California, its officers,
agents, and representatives, shall take the action set
forth in the Order.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge.
On December 1, 1983, I conducted a hearing at Oakland,
California, to try issues raised by a complaint issued on
July 20, 1983, based on a charge filed by Stukel Rock &
Paving, Inc. and Custom Rock Products, Inc. (Stukel
and Custom) on June 10, 1983, alleging Operating Engi-
neers Local Union No. 3 (OE 3) and Associated General
Contractors of California, Inc. (AGC) violated Section
8(e) of the National Labor Relations Act (Act), by enter-
ing into and giving effect to an agreement requiring the
AGC affiliates covered by that agreement to engage
only subcontractors subject to the terms of that agree-
ment to perform work on any materials incorporated into
a construction job or project.
271 NLRB No. 154
OE 3 and AGC concede entry into and enforcement
of the cited agreement, but plead such action is permissi-
ble under the first proviso to Section 8(e) of the Act.
Stukel, Custom, and the General Counsel respond that
while the proviso permits such agreements with respect
to onsite construction work, the agreement in question
covers offsite work, and therefore is outside the scope of
the proviso.
The issue for determination is whether the agreement
is within the scope of the proviso.
The parties appeared by counsel at the hearing and en-
tered into a stipulation of facts relevant and material to
the issue. Counsel for the Charging Parties, the General
Counsel and OE 3 also filed briefs.
Based on my review of the stipulation of facts, perusal
of the briefs, analysis and research, I enter the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The complaint alleges, the answers admit, and I find at
all pertinent times Stukel, Custom, AGC, and AGC's af-
filiates were employers engaged in commerce in a busi-
ness affecting commerce and OE 3 was a labor organiza-
tion within the meaning of Section 2 of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
About June 15, 1983, OE 3 and AGC entered into an
agreement covering the wages, rates of pay, hours and
working conditions of employees of contractors affiliated
with AGC for a term extending from June 16, 1983, to
June 15, 1986.
That agreement provided, inter alia, as follows:
This agreement shall . . . apply to the operation,
modification, maintenance and repair of equipment
covered by this agreement . . . established or in the
production of borrow, riprap, rock, sand, gravel,
aggregates of all kinds, concrete (excluding
cement), asphalt, or macadam, or other road surfac-
ing material (excluding oil), by an individual em-
ployer or a subcontractor, which is to be incorpo-
rated into specific jobs or projects of the individual
employer, so long as such material is actually being
produced or delivered to such job or project, and
such work will be considered onsite.
In the performance of their construction contracts, the
contractors covered by the agreement require materials
known as borrow (undifferentiated soil used for fill),
riprap (stone or rock used for loose walls or embank-
ments), rock, sand, gravel, aggregates (gravel mixed with
cement to form concrete), concrete, macadam and other
road surfacing material.
The contractors sometimes utilize their own equip-
ment, employees, and facilities to produce or process and
deliver those materials and sometimes subcontract with
other employers who are not parties to the agreement
for such production or processing and delivery, which
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
those subcontractors perform with their own or another
subcontractor's equipment and employees.
When a contractor covered by the agreement has sub-
contracted with another employer to supply materials to
a single construction job or project the primary contrac-
tor has been engaged to perform and that subcontractor
(or his subcontractor) uses his equipment and employees
to produce or process the materials in question for deliv-
ery to the jobsite, OE 3 and AGC have construed and
applied the agreement provision recited above as requir-
ing that subcontractor to comply with all the terms and
conditions of the AGC-OE 3 agreement, without regard
to whether that equipment and those employees are pro-
ducing or processing those materials at the jobsite, one-
half mile from the jobsite, 5 miles from the jobsite, or
over 20 miles from the jobsite.
Pursuant to that interpretation and application, when a
contractor affiliated with AGC and covered by the
agreement was engaged to perform a road-building
project, subcontracted the work of providing certain ma-
terials for the project to Stukel and Stukel in turn re-
tained Custom' to utilize Custom's equipment and em-
ployees in operating a rock-crusher at a location 2 miles
from the road-building jobsite to process some of the re-
quired materials for delivery to the jobsite, OE 3 de-
manded that Stukel/Custom comply with the terms of
the AGC-OE 3 agreement; i.e., that Stukel/Custom per-
form the work of operating, maintaining and repairing
the equipment utilized in its material producing or proc-
essing work with employees represented by OE 3 and re-
ceiving the rates of pay, wages, hours and conditions set
out in the AGC-OE 3 agreement. 2
B. Positions of the Parties
1. The General Counsel and the Charging Parties
The General Counsel and the Charging Parties con-
tend it is unlawful under Section 8(e) of the Act for any
union and employer to enter into an agreement wherein
the employer agrees to limit his subcontracts to employ-
ers whose employees are covered by agreements with
the Union, unless the agreement is strictly limited to sub-
contracts for the performance of work directly at the site
of a construction project; that the AGC-OE 3 agreement
is not limited to onsite construction work and is there-
fore unlawful.
2. OE 33
OE 3 contends work on materials which are incorpo-
rated into a construction job or project properly may be
classified as onsite construction work and therefore the
AGC-OE 3 agreement is lawful under the first proviso
to Section 8(e) of the Act.
' Neither Stukel nor Custom was AGC affiliate subject to the terms
and conditions of AGC-OE 3 agreement, nor signatory thereto.
' The employees assigned to the work in question were neither repre-
sented by OE 3 nor received the rates of pay, wages, hours, and working
conditions set out in the AGC-OE 3 agreement.
s While AGC entered an appearance in this case, filed an answer deny-
ing the basic allegations of the complaint, and entered into the stipula-
tions which formed the basis for the findings of fact recited heretofore,
AGC did not argue orally or file a brief
C. Analysis and Conclusions
Section 8(e) of the Act prohibits an employer and a
union from entering into and giving effect to an agree-
ment in which the contracting employer agrees to cease
or refrain from doing business with another employer.
The first proviso to the section permits an employer
and a union in the construction industry to enter into and
give effect to such an agreement, however, providing the
agreement relates to "the contracting or subcontracting
of work to be done at the site of the construction, alter-
ation, painting, or repair of a building, structure, or other
work .... " (Emphasis added.)
Congress made clear the exemption was limited to
onsite construction work4 and certainly that it did not
cover the transport and delivery of materials to a con-
struction site, saying
It should be particularly noted that the proviso re-
lates only and exclusively to the contracting or sub-
contracting of work to be done at the site of the
construction. The proviso does not exempt from
Section 8(e) agreements relating to supplies or other
products or other materials shipped or otherwise
transported to and delivered on the site of the con-
struction. 5
In a series of cases, the Board (with court approval)
has ruled the proviso not only does not extend to the
transport and delivery of materials to a construction site,
it does not extend to the operation of a concrete mixer
brought to a construction site by a materials deliverer or
the operation of a truck utilized at a construction site to
lower precast concrete pipe sections into a trench;6 war-
ranty repair work on machinery performed "near" a con-
struction site;7 the loading and unloading of materials
scheduled for delivery to a construction site at a storage
location 20 miles distant from that site;a the operation of
equipment for the purpose of excavating and screening
materials scheduled for delivery to a construction site at
a location 40 miles from that site;9 etc.
The Stukel/Custom charge which led to the issuance
of the instant complaint was filed when OE 3 claimed an
AGC affiliated contractor-employer violated the AGC-
OE 3 agreement by subcontracting the work of process-
ing materials to be used in the affiliate's construction
project at a location 2 miles from the construction site to
a subcontractor whose employees were neither repre-
sented by OE 3 nor compensated in accord with the
wages, rates of pay, etc. contained in the AGC-OE 3
agreement. AGC and OE 3 also stipulated they had en-
4 On the theory permitting such agreements would reduce work stop-
pages or other disruptions within the industry caused by friction between
employees represented by unions and covered by agreements between
their employer and union and nonrepresented employees if required to
work side by side on a construction project or job.
H.R. Conf. Rep. No. 1147, 86th Cong., Ist Sess. 39, I Leg. Hist. 943
(LMRDA 1959).
" Teamsters Local 42 (Inland Concrete), 225 NLRB 209 (1976).
Operating Engineers Local 701 (Oregon-Columbia Chapter. AGC), 216
NLRB 233, (1975), enfd. 578 F.2d 841 (9th Cir. 1978).
8 Boilermakers Local 92 (Bigge Drayage), 197 NLRB 281 (1972).
9 Operating Engineers Local 12 (Robert E Fulton), 220 NLRB 530
(1975).
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OPERATING ENGINEERS LOCAL 3 (STUKEL ROCK)
tered into and attempted to enforce an agreement requir-
ing AGC's affiliates to limit their subcontracts for the
performance of such offsite work to subcontractors
whose employees were represented by OE 3 and cov-
ered by an agreement with OE 3 containing all the terms
and conditions of the AGC-OE 3 agreement.
On the basis of the language of the statute, its legisla-
tivehistory, the case law recited above and the facts set
out above, I find and conclude the AGC-OE 3 agree-
ment on its face and as interpreted and applied by the
parties was and is an unlawful attempt by AGC and OE
3 to require AGC's affiliated contractor-employers to
cease or refrain from doing business with contractors or
subcontractors performing work away from or off the
site of the construction jobs or projects AGC's affiliated
contractor-employers have undertaken, such agreement
is violative of Section 8(e) of the Act, it is not within the
exception there to set out in the first proviso to Section
8(e), and it is unenforceable and void.
CONCLUSIONS OF LAW
1. At all pertinent times AGC, its affiliates, Stukel and
Custom were employers engaged in commerce in a busi-
ness affecting commerce and OE 3 was a labor organiza-
tion within the meaning of Section 2 of the Act.
2. AGC and OE 3 violated Section 8(e) of the Act by
entering into and enforcing an agreement requiring
AGC's affiliates to limit their contracts for materials for
use on their construction jobs or projects to contractors
or subcontractors who are or agree to become party to
an agreement with OE 3 covering their employees as-
signed to perform work away from or off the site of the
construction job or projects in which the AGC affiliate
is engaged.
3. The aforesaid unfair labor practice affects commerce
as defined in Section 2 of the Act.
THE REMEDY
Having found OE 3 and AGC violated the Act, I rec-
ommend they be ordered to cease and desist therefrom
and take certain affirmative action designed to effectuate
the purposes of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed1 o
ORDER
Respondent Associated General Contractors of Cali-
fornia, Inc., and its affiliated Contractor-Employers,
Oakland, California, its officers, agents, successors, and
assigns, and Respondent Operating Engineers Local
Union No. 3, San Francisco, California, their officers,
agents, and representatives, shall
1. Cease and desist from entering into, maintaining,
giving effect to or enforcing those provisions of their
10 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
collective-bargaining agreement to the extent found un-
lawful herein.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act.
(a) Respondent Associated General Contractors of
California, Inc. and its affiliated contractor-employers
shall post at their offices copies of the attached notice
marked "Appendix A.""l Copies of the notice, on forms
provided by the Regional Director for Region 32, after
being signed by AGC's authorized representative shall be
posted by AGC and its affiliates immediately after re-
ceipt and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by AGC to ensure the notices are not altered, de-
faced, or covered by any other material.
(b) Respondent Operating Engineers Local 3 shall post
at its offices and meeting halls copies of the attached
notice marked "Appendix B."' 2 Copies of the notice, on
forms provided by the Regional Director for Region 32,
after being signed by Local's 3 authorized representative,
shall be posted by Local 3 immediately after receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by
Local 3 to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) AGC and Local 3 shall notify Stukel Rock &
Paving, Inc. and Custom Rock Products, Inc. that they
have no objection to their employment by any contrac-
tor affiliated with AGC as contractors or subcontractors
on any construction jobs or projects undertaken by any
AGC affiliated contractor and that neither Stukel nor
Custom need recognize Local 3 as the representative of
their employees nor agree to pay the wages, rates of pay,
or observe the conditions of any agreement between
AGC and Local 3 as to any of their employees perform-
ing work away from or off the site of any project or job
in producing or processing materials for incorporation
within such project or job.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
II If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
12 Id.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT enter into, maintain, give effect to or
enforce clauses in our agreement with Operating Engi-
neers Local 3 limiting our affiliates to contracting or sub-
contracting with contractors or subcontractors who rec-
923
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ognize Local 3 as the representative of their employees
and agree to comply with the terms of our agreement
with Local 3, with respect to contractors or subcontrac-
tors whose employees do not operate, modify, maintain,
or repair equipment at the site of the construction job or
project the contracting affiliate has agreed to perform.
WE WILL notify Stukel Rock & Paving, Inc. and
Custom Rock Products, Inc. that we and our affiliates
have no objection to their employment on any construc-
tion jobs or projects our affiliates have undertaken and
that neither of them shall be required to recognize Local
3 as the representative of their employees nor agree to
pay the wages, rates of pay, and other conditions set out
in our agreement with Local 3 as to any of their employ-
ees assigned to perforn work on that contract away from
or off the site of the construction project or jobs our af-
filiate has undertaken.
ASSOCIATED GENERAL CONTRACTORS OF
CALIFORNIA, INC.
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT enter into, maintain, give effect to or
enforce clauses in our agreement with Associated Gener-
al Contractors of California, Inc. requiring its affiliates to
limit their contracts to contractors or subcontractors
whose employees are represented by us and covered by
an agreement with us, so long as the employees of such
contractors or subcontractors are operating, modifying,
maintaining or repairing their employer's equipment
away from or off the site of any construction job or
project of the contracting AGC affiliate.
WE WILL notify Stukel Rock & Paving, Inc. and
Custom Rock Products, Inc. that we have no objection
to their employment by an AGC affiliate and that we
neither seek nor demand recognition as the representa-
tive of their employees nor coverage of their employees
under our agreement with AGC, with respect to employ-
ees performing work away from or off the site of any
construction job or project.
OPERATING ENGINEERS LOCAL UNION No.
3 OF THE INTERNATIONAL UNION OF OP-
ERATING ENGINEERS, AFL-CIO
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