Operating Engineers, Local Union No. 12

National Labor Relations Board - Board Decisions

Sep 23, 1975

220 N.L.R.B. 530 (N.L.R.B. 1975)

530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers, Local
Union No. 12, AFL-CIO and Robert E. Fulton.
Cases 21-CC-1590 and 21-CE-131
September 23, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS PENELLO
AND JENKINS
On February 10, 1975, Administrative Law Judge
Jerrod H. Shapiro issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Respondent filed exceptions and a supporting
brief, and the Charging Party filed cross-exceptions
and a supporting brief. Respondent also filed a brief
in answer to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent , International Union of
Operating Engineers , Local Union No. 12, AFL-
CIO, Los Angeles , California , its officers , agents, and
representatives , shall take the action set forth in the
said recommended Order.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: Upon
charges filed by Robert E. Fulton in Case 21-CE-131 on
May 10, 1974, and in Case 21-CC-1590 on August 26,
1974, the General Counsel of the National Labor Relations
Board, herein called the Board, by the Regional Director
of the Board for Region 21, on October 2, 1974, issued an
order consolidating these cases and a consolidated com-
plaint against International Union of Operating Engineers,
Local Union No. 12, AFL-CIO, herein called Respondent,
alleging that Respondent had engaged in, and was engag-
ing in unfair labor practices within the meaning of Section
8(e) and Section 8(b)(4)(ii)(A) of the National Labor Rela-
tions Act, as amended. Respondent filed an answer deny-
ing the commission of any unfair labor practices. The mat-
ter was heard in Los Angeles, California, on November 20,
1974, and December 5, 1974.
Upon the entire record, from my observation of the de-
meanor of the witnesses, and having considered the post-
hearing briefs, I make the following:
FINDINGS OF FACT
1. THE EMPLOYERS AND THE LABOR ORGANIZATION INVOLVED
Robert E. Fulton, herein called Fulton, a sole propri-
etorship, is a general contractor in the construction indus-
try with his principal place of business in La Habra, Cali-
fornia. During the 12 months prior to this proceeding
Fulton performed services valued in excess of $50,000 for
the State of California which, in turn, during the same peri-
od purchased and received goods, materials, and supplies
valued in excess of $50,000 directly from outside the State
of California. Fulton, as described herein, entered into a
subcontract with Mastelotto Enterprises, Inc., herein called
Mastelotto, a subcontractor in the construction industry.
Based on the foregoing I find that Fulton is engaged in
commerce and that Mastelotto is engaged in an industry
affecting commerce within the meaning of the Act, and
that it will effectuate the policies of the Act to assert juris-
diction herein.
The Respondent, International Union of Operating En-
gineers , Local Union No. 12, AFL-CIO, the Union in-
volved in this case, is admittedly a labor organization with-
in the meaning of the Act.
If. THE QUESTIONS TO BE DECIDED
The ultimate questions to be decided are whether articles
III and IV of the Respondent 's collective-bargaining agree-
ment with Fulton are prohibited by Section 8(e) of the Act
and whether Respondent violated Section 8(b)(4)(ii)(A) of
the Act by bringing a lawsuit against Fulton charging him
with breaching his collective -bargaining agreement with
Respondent by doing business with a nonunion subcon-
tractor.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Legality of Article III and Article IV
1. The facts
On July 1, 1969, Respondent entered into a master labor
agreement , herein sometimes called MLA, with the South-
ern California Associations,' covering southern California,
which was effective until July 1, 1974, at which time it was
superseded by a new agreement effective until July 1, 1977.
The master labor agreement binds those construction con-
tractors who are members of the Southern California Asso-
1 The Southern Calfiorma Associations, employer associations who repre-
sent employers in labor relations matters, are the Associated General Con-
tractors of California , Inc., the Engineering and Grading Contractors Asso-
ciation, Inc., and Building Industry Association of California, Inc.
220 NLRB No. 91
OPERATING ENGINEERS, LOCAL UNION NO. 12 531
ciations as well as other contractors doing business in
southern California , not members of the Associations, who
sign a short-form agreement , herein sometimes called SLA,
which incorporates most of the terms of the master labor
agreement.
On November 30, 1973, Fulton entered into a short-form
agreement which by its terms was effective at all times ma-
terial herein and is presently in effect until July 1, 1977.2
Article I provides that Fulton recognize the Respondent as
the exclusive bargaining representative of Fulton 's employ-
ees who perform work over which Respondent has jurisdic-
tion and further provides , in articles II and VI, that Fulton
is bound by all provisions of the master labor agreement
except those which conflict with the short-form agreement.
The remainder of the short-form agreement, articles III
and IV , whose legality is an issue in this proceeding pro-
vide:
ARTICLE III
To the extent that any provisions in applicable mul-
tiple-employer agreements , adopted herein by refer-
ence, contain provisions with respect to grievance pro-
cedures, arbitrations (other than jurisdictional
disputes under the National Joint Board for the Settle-
ment of Jurisdictional Disputes in the Building and
Construction Industry), or commitments not to strike
over grievances or claims of contract violation, the
same shall not be in effect nor binding upon the par-
ties to this agreement . In the place of such provisions
the parties mutually agree to meet and attempt to set-
tle all such grievances and claims of contract violation
by direct negotiation between duly authorized repre-
sentatives of each of the parties.
If the parties are unable to settle or adjust any such
grievance or claim of contract violation, nothing con-
tained in this agreement, expressly or by implication,
shall in any way limit or modify the right of each party
to enforce this agreement or adjust grievances by
means of legal or economic procedures.
ARTICLE IV
It is agreed that no employee working under this
Agreement need work under any conditions which
may be , or tend to be, detrimental to his health, mor-
als or reputation ; cross any picket line or enter any
premises at which there is a picket line authorized by
any of the Building and Construction Trades Coun-
cils, AFL-CIO Central Labor Councils, or the Inter-
national Union of Operating Engineers , Local Union
No. 12, in the area above described ; or handle , trans-
port or work upon or with any product declared un-
fair.
The General Counsel contends that to assess the legality
of article III of the short-form agreement it must be read in
conjunction with MLA's article I , section B-7 through
B-13 which , by the terms of the short-form agreement, is a
part of that agreement . MLA's article I, section B-7
2 The current MLA and SLA which are effective until July 1, 1977, in-
clude the identical provisions pertinent to this case which were contained in
the prior agreements.
through B-13, reads as follows:
7. The Contractor agrees that he, or any of his Sub-
contractors on the jobsite, will not contract or subcon-
tract any work, alteration, painting or repair of a
building or structure, including quarries, rock, sand
and gravel plants, asphalt plants, ready-mix concrete
or batch plants established and/or adjacent to the job-
site to process or supply materials for the convenience
of the Contractor, except to a person, firm or corpora-
tion, party to an appropriate current labor agreement
with the Union, affiliated with the Building and Con-
struction Trades Department, AFL-CIO, or with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or an affili-
ate thereof.
8. A Subcontractor, for the purpose of this Agree-
ment, is defined as any person, firm or corporation
properly licensed by the State of California Contrac-
tors License Board and agrees under contract with the
Contractor, or his Subcontractors, to perform any
work covered by this Agreement except the servicing
and repair of equipment and who employs workmen
to perform services covered by this Agreement, in-
cluding the performance of labor, or the furnishing
and installation of material, or the operation of equip-
ment . All employees of Subcontractors will perform
work at the appropriate hourly rate and will be report-
ed to such Trust Funds as are required by this Agree-
ment.
9. All work performed by the Contractors or Sub-
contractors and all services rendered by the Contrac-
tors or Subcontractors shall be rendered in accordance
with each and all of the terms and provisions hereof.
10. In the event of a jurisdictional dispute, and the
National Joint Board awards the work in dispute to
the Operating Engineers, the Contractor or Subcon-
tractor involved, shall immediately comply with such
decision.
(a) Where the Contractor or Subcontractor refuses
or neglects to comply with the entire provisions imme-
diately above, the Union shall not be deemed to have
violated any part of this Agreement for ceasing to per-
form work on all or any part of the job or project.
11. The Contractor shall provide in his contract
with the Subcontractor, the following provisions:
(a) Any Subcontractor who performs any work,
or uses equipment on the project within the jurisdic-
tion of the Operating Engineers must be signatory
to an appropriate Agreement with the Union.
(b) If there is a dispute over the assignment of
equipment, the Subcontractor agrees to a meeting
with the Contractor and/or his representative and a
representative of the Union.
(c) The Subcontractor accepts and agrees to be
bound by the Plan for Settling Jurisdictional Dis-
putes, nationally and locally, as the same now is, or
hereafter may be amended, and to be bound by the
decisions of the National Joint Board for the Settle-
ment of Jurisdictional Disputes as constituted under
said Plan. The Subcontractor agrees that he will
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bind his Subcontractors to said Plan in the same
manner and to the same effect as hereinabove pro-
vided with respect to him.
12. (a) The following provision shall apply in a sit-
uation where the Union contends that a Subcontractor
of the Contractor has assigned the performance of
work covered by this Agreement to a workman who is
represented by another labor organization.
(b) In the event the Union contends that the fore-
going state of facts exists, it shall have the right to
notify the Contractor, in writing of the details and to
request the Contractor to take the corrective action
hereinafter specified. Upon receipt of such a notice
from the Union, the Contractor shall investigate the
situation without delay and if it is determined that the
labor organization which represents the workmen per-
forming services covered by this Agreement does not
contend that such services fall within its own craft ju-
risdiction, the Contractor shall immediately take the
following action:
(c) With the mutual agreement of the Subcontrac-
tor, to replace the workman who has been performing
the services in question, with an employee represented
by the Union; or
(d) So alter the Contractor's relationship to the
Subcontractor as will result in the performance of the
services in question by an employee represented by
the Union. The Contractor's action may consist of a
change order affecting the scope of the work covered
by the subcontract with the particular Subcontractor,
or a complete termination of the said subcontract.
(1) The provisions of this Paragraph 12 shall be ef-
fective on and after January 1, 1970.
(e) The Contractor agrees that he shall include in
all of his subcontracts provisions giving him the right
to take any of the foregoing remedial actions.
13. In particular, the Subcontractor agrees to be
bound by the provision of the plan which states: "Any
decision or interpretations by the Joint Board (or
hearings panel) shall immediately be accepted and
complied with by all parties signatory to this Agree-
ment."
2. Ultimate findings and analysis
Section 8(e) of the Act makes unlawful "any contract or
agreement, express or implied" whereby an employer
agrees not to handle products of, or agrees to cease doing
business with, any other person. A proviso to this section
exempts from this proscription an agreement between a
union and an employer in the construction industry with
respect to work "to be done at the site of the construction
...." As the Supreme Court explained in National Wood-
work Manufacturers Association, et al. v. N.L.R.B., 386 U.S.
612, 633-635 (1967), Section 8(e) was intended to supple-
ment the existing prohibitions against secondary boycotts.
It does not prohibit all union-employer agreements which
may have the incidental effect of a cessation of business
with other employers. Rather, Congress intended Section
8(e) would embody the same distinction between lawful
"primary" and unlawful "secondary" boycott activity con-
tained in Section 8(b)(4). Id. at 637-639. Although it is
often difficult to distinguish between legitimate primary
activity and banned secondary activity, "the touchstone [of
legality under Section 8(e)] is whether the agreement or its
maintenance is addressed to the labor relations of the con-
tracting employer vis-a-vis his own employees" or whether
the agreement is "tactically calculated to satisfy union ob-
jectives elsewhere." Id. at 644-645. The applicable stan-
dard for determining whether contract clauses run afoul of
the proscription of Section 8(e) was stated by the Board in
Retail Clerks International Association Local Union No.
1288, AFL-CIO, (Nickel's Pay-Less Stores), 163 NLRB
817, 818-819 (1967):
. .. contract provisions are secondary and unlawful if
they are to have as their principal objective the regula-
tion of the labor policies of other employers and not
the protection of the unit. Typical of such proscribed
provisions are those which limit subcontracting to em-
ployers who recognize the union or who are signatory
to a contract with it.
See also N.L.R.B. v. Joint Council of Teamsters No. 38,
Teamsters Union, Local No. 87, et al., 338 F.2d 23, 28 (C.A.
9, 1964):
Subcontracting is permitted [by the bargaining con-
tract] if the third party has signed a union contract,
prohibited if he has not. Whether the pressure of a
boycott by a signatory employer will be applied to a
third party depends entirely upon the latter's relation-
ship with the union. The trust of this boycott agree-
ment is secondary, and the provision is therefore con-
trary to the purpose as well as the letter of Section
8(e).
Applying these principles in the instant case, the General
Counsel contends, the Respondent has not contested, and I
agree that article I, section B-7 through B-13, of the mas-
ter labor agreement imposes secondary restrictions upon
the signatory employer. These provisions restrict the class
of subcontractors with whom a signatory employer may do
business to those who have signed a contract with Respon-
dent and also require the signatory employer to boycott the
services of a subcontractor who employs members of a dif-
ferent union or no union. There is no evidence or a conten-
tion that the Respondent's objective in including article I,
section B-7 through B-13, in the short-form and master
labor agreements was to preserve unit work rather than the
acquisition of work for the Respondent's members general-
ly, as evidenced by the unambiguous terms of these provi-
sions . Accordingly, article I, section B-7 through B-13, are
proscribed as unlawful secondary boycott provisions by
Section 8(e) of the Act, unless they are exempt from ille-
gality under the construction industry proviso to that sec-
tion. In this regard, the disputed subcontracting agreement
on it face, in pertinent part, is limited to work "on the job
site" and the General Counsel in effect has conceded it
literally complies with the construction industry proviso .3
31 note that the portion of the subcontracting agreement which refers to
work performed at "batch plants established on/or adjacent to the jobsite to
process or supply materials for the convenience of the contractor" is not
OPERATING ENGINEERS , LOCAL UNION NO. 12 533
Acknowledging that "the clauses (art. I , sec. B-7 through
B-13) specifically refer to job site construction work," the
General Counsel in his posthearing brief challenges the le-
gality of these provisions only insofar as he urges that
Respondent 's right, as set out in article III of the short-
form agreement , to enforce the subcontracting provisions
by means of "economic procedures" is a prohibited form
of economic self-help which removes the subcontracting
provisions from the protection of the construction industry
proviso . Based upon the foregoing , I find that article I sec-
tion B-7 through B-13 are secondary and within the pur-
view of Section 8(e) rather than primary and outside its
scope , but that these provisions literally fall within the con-
struction industry proviso and as such are exempt from
illegality . I shall now deal with the General Counsel's con-
tention that these subcontracting provisions when incorpo-
rated into the short-form agreement are tainted with ille-
gality by virtue of the self-help provisions embodied in
articles III and IV.
In agreement with the General Counsel, I am of the
opinion , in the circumstances of this case , that the disputed
subcontracting provisions are not protected by the con-
struction industry proviso to Section 8(e). Article III, to-
gether with the prohibition on subcontracting to persons
who are not party to an agreement with Respondent, sanc-
tion private economic action by employees should the em-
ployer who is signatory to a short-form agreement subcon-
tract work to a nonsignatory employer. By its explicit terms
article III is a catchall provision which permits economic
enforcement of the entire short-form agreement. And,
since this agreement incorporates all the pertinent provi-
sions of the master labor agreement , article III renders un-
lawful the secondary provisions included in the master la-
bor agreement which would have otherwise been privileged
by virtue of the construction industry proviso. In sum, I
find that the portion of article III which permits Respon-
dent to enforce article I , section B-7 through B-13 by
means of "economic procedures" involves a form of eco-
nomic pressure proscribed by Section 8(b)(4)(B). Accord-
ingly, it exceeds the limited exemption of the construction
industry proviso to Section 8(e) and is therefore unlawful.
See General Teamsters, Local 982 (J.K Barker Trucking),
181 NLRB 515, 522 ( 1970), enfd . sub nom . on this point
Joint Council of Teamsters No. 42 et. al., 450 F.2d 1322, fn.
1 (C.A.D.C., 1971). In so concluding I have considered
Respondent's contention that the phrase "economic proce-
dures" is at best ambiguous, is not clearly unlawful on its
face and, that absent extrinsic evidence of illegality , should
be interpreted by the Board to require no more than re-
quired by law, citing, Ets-Hokin Corporation, 154 NLRB
839, 840-841 (1965). The Board , however , in General
Teamsters Local 982 has considered and rejected this argu-
ment insofar as it applies to article III. There, one of the
disputed provisions-article V-was identical to article III
and permitted the respondent union "to enforce this agree-
ment by means of legal or economic procedures." In con-
cluding that this constituted illegal self-help the Board
involved in this proceeding and the General Counsel does not urge that it is
unlawful as worded.
found that the phrase "economic procedures" was unam-
biguous and that "by its explicit terms" it permitted eco-
nomic enforcement of the entire agreement .4 Finally, even
though Respondent' s master labor and short-form agree-
ments have previously been before the Board and this is
the first time the General Counsel has challenged the legal-
ity of the provisions involved herein, it does not, as con-
tended by Respondent estop the Board from invalidating
either article III or article IV. The fact that the General
Counsel has neglected to challenge these provisions in the
past obviously does not grant the Respondent a license to
violate the Act forever. All that is required is that the con-
duct involved not be barred by the Act's statute of limita-
tions.
Regarding article IV of the short-form agreement, I
agree with the General Counsel that it is proscribed by
Section 8(e) of the Act. Article IV which expressly allows
all employees covered by the short-form agreement to re-
fuse to "cross any picket line or enter any premises at
which there is a picket line authorized by the [Respondent
or other named labor organizations]," can be read as ap-
plying to unlawful secondary picketing . See, e .g., Los Ange-
les Building & Construction Trades Council (Jones & Jones
Inc.), 150 NLRB 1590, 1592 (1965). I also find that the
remaining portion of article IV which provides that an em-
ployee need not "handle, transport or work upon or with
any product declared unfair" is but another sanction made
available to Respondent to enforce the secondary subcon-
tracting clauses in the agreement. Southern California Dis-
trict Council of Hod Carriers and Laborers, and Gunite
Workers Local No. 345 (Golding and Jones), 158 NLRB 303,
306-307 (1966); Lane-Coos-Curry-Douglas Counties Build-
ing & Construction Trades Council (Willamette General Con-
tractors Association), 155 NLRB 1115, 1118-1119; Los An-
geles Building & Construction Trades Council (Jones &
Jones), 150 NLRB 1590, 1592-93 (1965); Teamsters, Chauf-
feurs, Warehousemen and Helpers Union Local No. 386, In-
ternational Brotherhood of Teamsters, Chauffeurs,- Ware-
housemen & Helpers of America; Valley Employers
Association, etc. (California Association of Employers), 145
NLRB 1475, 1479 (1964). Accordingly, these portions of
article IV violate Section 8(e) of the Acts
B. The Legality of Respondent's Lawsuit
1. The facts
Fulton, a general contractor, primarily does highway
construction work and site grading. On November 30,
1973, he entered into a collective-bargaining agreement,
the short-form agreement which incorporates almost all of
the provisions of the master labor agreement between Re-
4 Although not necessary to my decision I note that the Respondent's
president , William Waggoner, at one point admitted there was no difference
between the phrases "economic procedure" and "economic action" and ad-
mitted that "economic action" referred to strikes and picketing Waggoner
testified, "I think you will be playing on words if you are talking about
economic procedures as opposed to economic action."
5 Respondent 's contention that, "since there is no present dispute involv-
ing [art. IV], a request for a declaration that such is unlawful is clearly
unwarranted ," is without merit because an. IV which was entered into with-
in the Act's statute of limitations is unlawful on its face and thus its mere
existence tends to have an illegal coercive secondary effect.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent and the Southern California Contractors. These
agreements , as described above , were in effect at all times
material and are effective until July 1, 1977.
In December 1973 the State of California awarded Ful-
ton the job of placing curbs and sand at two recreational
beaches, herein called the project . Fulton entered into a
subcontract with Mastelotto to supply the sand for the
project . Pursuant to this subcontract Mastelotto 's employ-
ees screened the sand at a river bed designated in the sub-
contract, stockpiled the sand and loaded it upon trucks
rented by Fulton which transported and delivered the sand
to the project where it was graded and compacted by
Fulton 's employees . This work began on or about Decem-
ber 6 , 1973, and was completed early in February 1974.
Article I , section B-7, of the master labor agreement,
which is a part of Fulton 's short-form agreement and
which has previously been described in its entirety, in sub-
stance provides that the signatory employer will subcon-
tract "jobsite" work to contractors who are signatory to an
agreement with Respondent . Mastelotto was not a signato-
ry to such an agreement . Respondent learned that Fulton
had subcontracted with Mastelotto to furnish the sand for
the project and concluded that this constituted a violation
of Fulton's subcontracting agreement with Respondent.
Respondent neither struck nor picketed Fulton nor Mastel-
otto nor threatened to engage in such conduct or otherwise
took economic action against either employer . Instead, as
described below , a representative of Respondent first
spoke to Fulton about the matter, then Respondent wrote
him a letter and then filed a lawsuit . Respondent did not
file a contractual grievance since Fulton 's short-form
agreement does not include a grievance -arbitration proce-
dure but, to quote article III, "in the place of such provi-
sions [grievance-arbitration provisions] the parties mutual-
ly agree to meet and attempt to settle all such grievances
and claims of contract violations by direct negotiation .. .
[and] if the parties are unable to settle or adjust any such
grievance or claim of contract violation, nothing contained
in this agreement, . . . shall . . . limit . . . the right of each
party to enforce this agreement or adjust grievances by
means of legal . . . procedures."
Specifically , in January 1974 a representative of Respon-
dent visited Fulton and complained about his use of Mas-
telotto and requested that Fulton comply with his subcon-
tracting agreement . Fulton ignored the request, so on
January 18, 1974 , the Respondent's attorney , by letter, no-
tified Fulton:
Please be advised that we are the attorneys for the
International Union of Operating Engineers, Local
Union No. 12. On November 30, 1973, you entered
into a collective bargaining agreement with Local 12
covering the construction operations of your compa-
ny.
We have learned that you recently received the award
of the Perris Dam job through the Department of Ar-
chitecture and Construction of the State of California.
Included within this construction award was the per-
mission granted to remove sand from the San Bernar-
dino County Flood Control District right of way in
the area east of Mt . View Avenue in the northwest
portion of the City of Realands . This is pursuant to
permit number P-673043 . It has come to our attention
that you have subcontracted this portion of work to a
firm named Mastelotto Enterprises , Inc. This is to ad-
vise that Mastelotto Enterprises , Inc., is not signatory
to a collective bargaining agreement with Local 12 or
any other union.
Your attention is invited to the subcontractor clause
of the Master Labor Agreement incorporated in the
short form agreement signed by you on November 30,
1973. Article I (B) (7) provides as follows:
[Article I (B) (7) quoted]
Since the subcontracting work performed by Mas-
telotto Enterprises , Inc., comes within the work ju-
risdiction of the Operating Engineers , Local 12, this
is to notify you that you are in violation of our col-
lective bargaining agreement . Demand is hereby
made that you immediately comply with the terms
and provisions of the subcontractor clause as set
forth above by subcontracting such work to a per-
son, firm or corporation , party to an agreement with
Local 12.
Unless you have corrected this situation within two
(2) days from receipt of this letter, please be advised
that we are authorized to institute legal proceedings
on behalf of Local 12 to enforce the subcontractor
clause quoted above.
It is hoped that this matter may be satisfactorily
resolved short of the institution of such litigation.
However , you are reminded that your failure to
remedy this matter within two (2 ) days will leave us
no other recourse.
Upon his receipt of this letter on January 22, 1974, Fulton
sent the following letter to Mastelotto:
Per our discussion at contract time and per our con-
tract, it is essential that your company have agree-
ments with the Operating Engineers in as much as I
have agreements with the Operating Engineers requir-
ing our company to subcontract to Union subcontrac-
tors.
Per the attached letter you have until Thursday,
January 24, 1974 to either ( 1) sign an agreement with
the Union or (2) remake a contract with a company of
yours or (3) breach our contract by not doing I or 2.
If you choose 3 above then I will be forced on that
day to take over your operations and back charge
your account for any costs in excess of the contract
amount.
On the same date Fulton sent copies of this letter to Re-
spondent and, by letter , also notified Respondent 's attor-
ney that its letter to Mastelotto "is our course of action for
correcting the problem." Mastelotto did not comply with
Fulton 's ultimatum but Fulton did not, as he had warned,
"take over" Mastelotto's operation, rather he allowed Mas-
telotto to complete the subcontract.
The Respondent on February 26, 1974 , after the project
was completed, filed a "Complaint For Breach Of Contract
OPERATING ENGINEERS , LOCAL UNION NO. 12
And Damages" against Fulton in the State Superior Court
under the provisions of Section 301(a) of the Act. The com-
plaint in substance alleges that Fulton subcontracted with
Mastelotto to furnish the sand for the project, that Mastel-
otto was not a signatory to an agreement with Respondent,
that Fulton by virtue of his agreement with Respondent
was obligated to subcontract such work to an employer
who was signed to an agreement with Respondent, and
that by subcontracting the disputed work to Mastelotto
Fulton had breached his contract with Respondent. Re-
spondent asked the court to grant a judgment of $31,000
for compensatory wages and benefits ; $50,000 in punitive
and exemplary damages, alleging in this regard that
Fulton's breach of the subcontracting agreement was "wil-
ful, wanton and malicious "; an order restraining Fulton
from violating the terms of the agreement by subcontract-
ing to nonunion subcontractors ; and for litigation costs.
Fulton filed an answer and the matter is presently pending.
2. The positions of the parties
The General Counsel takes the position that
"Respondent 's court suit for punitive damages in order to
compel an unlawful interpretation of its agreement with
Fulton is coercive and violative of Section 8(b)(4)(ii)(A) of
the Act." Essentially, the General Counsel asserts that be-
cause it seeks punitive damages in addition to compensato-
ry damages Respondent 's effort to enforce its collective-
bargaining agreement by means of a lawsuit constitutes
coercion or restraint within the meaning of Section
8(b)(4)(ii) of the Act. And, since the disputed work per-
formed by Mastelotto is not encompassed by the construc-
tion industry exemption to 8(e ), the General Counsel urges
that the lawsuit was brought in support of the secondary
objective of forcing Fulton to agree to an interpretation of
the short-form agreement prohibited by Section 8(e) and,
as such , constitutes a violation of Section 8(b)(4)(ii)(A) of
the Act.
Respondent takes the position that its use of a lawsuit to
resolve its dispute with Fulton was invoked pursuant to a
jointly agreed-upon contractual procedure and, especially
in this circumstance , as a matter of law the resort to the
courts under Section 301(a) of the Act cannot constitute
impermissible restraint or coercion . Also, Respondent
urges that it lawfully interpreted the short-form
agreement's subcontracting provisions since Mastelotto
was performing work at the site of the construction project.
3. Ultimate findings and analysis
a. Did Respondent interpret its subcontracting agreement
with Fulton to cover work which was not 'jobsite" work
within the meaning of the construction industry proviso to
Section 8(e)
The Lake Perris Recreational Area Project , the job
awarded Fulton by the State of California, was essentially
the development of a public recreation area . Fulton's con-
tract with the State 6 makes him responsible for the clear-
535
ing-removing the vegetation and rocks-and the grading
at two adjacent locations behind Lake Perris Dam. Also,
Fulton agreed to install the curbs and to place and grade
the sand for the two beaches on the project. The contract
called for Fulton to furnish all materials necessary to com-
plete the project including the sand needed for the beaches.
The contract described in detail the type of sand required
and stated that the source for the sand would be the Santa
Ana River and designated a certain location on the river,
herein called the River Site, where the sand was located.
The River Site was not adjacent to the project but was
about 35 to 40 miles from the project. The contract also
required that the operations at the River Site be conducted
in accordance with the requirements of a permit issued to
the State by the San Bernardino County Flood Control
District which had jurisdiction over the River Site. This
permit, which was incorporated into Fulton's contract for
the project, in substance strictly regulates the use of the
River Site-i.e., guards against pollution and other misuse
of the property-and places the responsibility on Fulton to
see that the requirements of the permit are complied with
and requires Fulton to maintain insurance to protect the
Flood Control District against any claim of damage liabili-
ty arising out of the use of the site . The State however did
not require that Fulton secure the sand needed for the
beaches from the River Site but the contract specifically
provided that "[Fulton] may obtain sand from alternative
sources" as long as the quality, coloration, and particle
shape of the sand met the specifications of the contract. In
fact Fulton investigated the cost of obtaining sand from a
source closer to the project than the River Site but for
legitimate business reasons decided to secure the sand from
the River Site.
As indicated above, Fulton decided to subcontract the
task of supplying the sand and entered into a subcontract
with Mastelotto whereby Mastelotto agreed to excavate
and screen approximately 85,000 tons of sand at the River
Site, to stockpile the sand at the site, and then to load the
sand upon trucks furnished by Fulton. This is what actual-
ly occurred. Mastelotto's employees-about eight-using
equipment owned by Mastelotto-tractor, bulldozer, front-
end rubber tire loader, radial stacker, and a vibrating
screen-excavated the sand from the river bed, screened
and stockpiled the sand, and then loaded it upon the fleet
of double bottom trucks rented by Fulton. The trucks
drove the 35 to 40 miles over public roads to the project
where the sand was unloaded by Fulton's employees, who
were members of Respondent, and Fulton's employees
compacted and graded the sand.
It is undisputed that Fulton and Mastelotto were sepa-
rate employers for purposes of the Act and that Fulton's
employees were never employed at the River Site nor were
Mastelotto's employees ever employed at the project. Al-
though Fulton and his truck foreman and his general su-
perintendent visited the River Site, their sole concern was
to determine whether Mastelotto was stockpiling a suffi-
cient amount of sand and to make sure that the fleet of
trucks was promptly picking up and delivering the sand.
6 All references herein to Fulton 's job contract awarded by the State re-
fers to the actual contract , Exh. 5 , and the job 's specifications , Exh. 4.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, it is undisputed, and I find, that Fulton did not
exercise any supervision or control over Mastelotto's em-
ployees.
In my opinion the facts, as set out above, which are
undisputed, establish that the interpretation of the short-
form agreement which Respondent sought to impose on
Fulton was not privileged by the construction industry pro-
viso because the work performed by Mastelotto does not
constitute "jobsite" work within the meaning of the provi-
so. In arriving at this conclusion I have been motivated by
the following considerations.
Section 8(e)'s prohibition against agreements not to do
business is qualified by a special proviso applicable to the
construction industry: "Provided, that nothing in this sub-
section (e) shall apply to an agreement between a labor
organization and an employer in the construction industry
relating to the contracting or subcontracting of work to be
done at the site of the construction, alteration, painting, or
repair of a building, structure, or other work."
The legislative history shows that Congress intended the
construction industry proviso to be a limited exemption
from Section 8(e)'s overriding aim of prohibiting "hot car-
go" clauses . The exemption for the garment and construc-
tion industries were intended to be limited ones, granted
only in recognition of the problems peculiar to the particu-
lar industries. The construction industry's exemption was
based on a congressional appreciation of "the close com-
munity of interests" on the construction site. National
Woodwork Manufacturers Association, et al. v. N.L.RB.,
386 U.S. 612, 638-639, (1967). In this connection, Repre-
sentative Elliott observed that `where all men are employed
on the same project, the division into different trades, each
with its own employer, must not be allowed to obscure this
common interest-they work side by side and the wages
and working conditions of one trade affect all the others."
II Leg. Hist. 1588. Accord: Remarks of House Speaker
Rayburn introduced by Representative Thompson, II Leg.
Hist. 1577. See also, remarks of Representative Goodell, II
Leg. Hist. 1684. This community of interest was evidenced
by the recurring problems of "sporadic work stoppages oc-
casioned by the traditional refusal of craft unionists to
work alongside nonunion men on the same project." Essex
County and Vicinity District Council of Carpenters, etc. v.
N.L.R.B., 332 F.2d 636, 640 (C.A. 3, 1964). Accord: Driv-
ers, Salesmen, Warehousemen, Milk Processors, Cannery,
Dairy Employees and Helpers, Local 695, etc. v. N. L. R B.,
361 F.2d 547, 551 (C.A.D.C., 1966). Furthermore, Congress
indicated that the proviso did not go so far as to permit hot
cargo agreements to be used as a means of unionizing em-
ployers who furnished materials and supplies to the job-
sites . See, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers, Local 294 (Island Dock
Lumber, Inc.), 145 NLRB 484, 490-491 enfd. on this point
342 F.2d 18, 21-22 (C.A. 2, 1965).
In short, the legislative history indicates that the phrase
"work to be done at the site of the construction" is not
unlimited in scope but, on the contrary, should be con-
strued narrowly to include only work performed on the
jobsite. This conclusion is supported by the longstanding
rule of statutory construction as applied to the construc-
tion industry proviso that "[t]he proviso to Section 8(e) .. .
as an exception to the Landrum-Griffin Act's overriding
aim to prohibit secondary boycotts, is [to be] strictly con-
strued." N.L.R.B. v. Drivers, Salesmen and Helpers, Local
695, etc., supra, 553, fn. 23.
Applying these principles to this case it is clear that the
disputed work performed by Mastelotto is not covered by
the construction industry proviso to Section 8(e) of the Act.
As described above, the disputed work was not "done at
the site of the construction" and as a result, there is no real
community of interest between the nonunion employees
employed by Mastelotto and the other union employees
employed at the construction site. Hence, insofar as the
proviso was enacted to permit a union to require that job-
site construction work be all union to avoid the possibilities
of work stoppages and friction resulting from a refusal of
union men to work shoulder-to-shoulder with nonunion
men, that rationale is inapplicable here. Moreover, it is ap-
parent that Mastelotto's employees work in preparing the
sand for use on the construction site is no more integrated
into the construction process than the pouring of concrete
into molds at the construction site by the ready-mix drivers
who deliver the concrete in their trucks-work which has
been consistently held not to be covered by the construc-
tion industry proviso. See, e .g., Island Dock, supra. Ready-
mix concrete employers deal almost exclusively with the
construction industry, with their drivers traveling back and
forth between their plant and the jobsite many times per
day, day after day. In contrast, Mastelotto's employees
never visited the jobsite. Moreover, extending the construc-
tion industry proviso to a provider of materials because the
material is an essential part of the construction process
would have broad implications. Thus, all large contractors
make substantial purchases of materials-sand, wood,
steel, nails, etc.-which are essential to the construction.
Surely it was not Congress' intention to include all these
suppliers within the construction industry proviso merely
because they provide materials which are essential to the
construction process.
For all of the foregoing reasons, including the secondary
thrust of the pertinent contractual provisions, I find that
the interpretation of the short-form agreement which Re-
spondent sought to impose on Fulton violated Section 8(e)
of the Act and was not privileged by the section's proviso.
In so concluding, I have considered Respondent's conten-
tion that the use of sand from the River Site was such a
integral part of Fulton's contract with the State that the
jobsite included the River Site. But, as described above,
Fulton's contract did not require him to use sand from the
River Site. Nor, as Respondent urges, does Fulton's con-
tract with the State otherwise indicate that the River Site
was a part of the project.? To the contrary, the contract
indicates that the River Site was not a part of the project.
Thus, the portion of the contract entitled "Location of
Site" states : "The sites of the work are on the State of
California property located at Lake Perris State Recreation
Area, Riverside County, California." The River Site was
r I have carefully considered the several provisions of Fulton 's contract
with the State which Respondent relies upon to support its claim that a "fair
interpretation" of the contract shows that the River Site was a part of the
project.
OPERATING ENGINEERS , LOCAL UNION NO. 12
located about 40 miles away in San Bernardino County.
Also, the portion of the contract captioned "Limitations on
worksite and premises" reads in pertinent part: "The `work
site' or `job site' is the area of actual construction and the
areas immediately adjacent thereto . . . . The `premises' is
the area of State-owned property which surrounds the job
site, limited by the property line the reof."
b. Did the lawsuit filed by Respondent constitute
impermissible threats, coercion, or restraint within the
meaning of Section 8(b)(4)(ii) of the Act
Section 8(b)(4)(ii)(A), the Section of the Act which Re-
spondent is accused of violating , so far as pertinent, makes
it an unfair labor practice for a union to "threaten , coerce
or restrain" an employer "to enter into" any agreement
which is prohibited by Section 8(e) of the Act. Section 8(e)
forbids the making of an agreement between an employer
and a union whereby the parties agree that the former will
not do business with another person. A proviso to this sec-
tion exempts from this proscription an agreement between
a union and an employer in the construction industry with
respect to work "to be done at the site of the construction
.." Respondent and Fulton, as described above, en-
tered into an 8 (e) subcontracting agreement exempt from
illegality by the construction industry proviso. Simply stat-
ed, Respondent was a party to a valid and enforceable
subcontracting agreement . Of course , Respondent could
not resort to a strike or other economic action to enforce it
because , even where an 8(e) agreement is protected by the
construction industry proviso, it has long been settled that
the use of economic action to enforce the agreement is
illegal . E.G., International Union of Operating Engineers,
Local Union No. 12, AFL-CIO, (Tri County Association of
Civil Engineers and Land Surveyors), 126 NLRB 688, 693
(1960). The Board and the courts consistently warn labor
organizations that "although a contract within the con-
struction industry proviso to Section 8(e) is exempt from
the operation of that Section, it may be enforced only
through a lawsuit and not by threats, coercion or restraint
proscribed by Section 8(b)(4)(B)" Ets-Hokin Corporation,
154 NLRB 839, 842 (1965), and cases cited therein. Also
see Local Union No. 438, United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Industry,
(1965) etc. (George Koch Sons), 201 NLRB 59, 63 (1973)
("By our decision here, we simply hold that the [Unions]
actions were in violation of Section 8(b)(4)(B). If a contract
breach occurred, [the Unions] remedy may well lie in a
civil suit for breach of contract ..." ), and, Northeastern
Indiana Building and Construction Trades Council et al.,
(Centlivre Village Apartments), 148 NLRB 854, 857 (1964)
(". . . we agree [with the court decisions] that under Sec-
tion 8(bX4XB) lawful `hot cargo' clauses `may be enforced
only through lawsuits, and not through economic action' "
[case cited] ).
Presumably it was because of this admonition that when
it discovered Fulton had subcontracted with a nonunion
contractor that Respondent did not take economic action
or threaten Fulton with such action but, instead, proceded
against Fulton under the provisions of their collective-bar-
gaining agreement which provided that if they were unable
537
to resolve a claim of contract violation by negotiation that
the parties had the right to enforce the agreement by means
of "legal or economic procedures." Respondent used legal
procedures. Specifically, one of Respondent's business rep-
resentatives discussed the matter with Fulton and asked
that Fulton comply with his agreement not to use non-
union subcontractors. When Fulton ignored this request
the matter was referred to Respondent's attorney who ad-
vised Fulton that unless he complied with the terms of his
subcontracting agreement and subcontracted the work in
dispute to an employer who was signed to an agreement
with Respondent that the attorney was "authorized to in-
stitute legal proceedings . . . to enforce the subcontractor
clause ." Fulton did not comply and Respondent's attorney,
charging Fulton with a breach of contract, filed a suit un-
der Section 301(a) of the Act seeking compensatory dam-
ages, punitive damages, and injunctive relief.
The General Counsel, realizing that "the prohibition of
Section 8(b)(4) is keyed to the coercive nature of the con-
duct, whether it be picketing or otherwise," 8 urges that
Respondent's lawsuit constitutes impermissible restraint or
coercion within the meaning of Section 8(b)(4)(ii) of the
Act. But the law is settled that "the filing of a suit under
Section 301(a) may not be relied upon to support the con-
clusion that an unfair labor practice has occurred" 9 and
more specifically, "that the prohibited coercion in
8(b)(4)(ii)(B) does not preclude judicial enforcement of a
hot cargo clause left valid and enforceable under 8(e)."
Local Union No. 48 of Sheet Metal Workers International
Association v. Hardy Corporation, 332 F.2d 682, 688 (C.A.
5, 1964). The court in Hardy Corporation rejected the con-
tention that it was Congress' intention when it enacted Sec-
tion 8(b)(4)(ii) to prohibit judicial enforcement of a con-
tract otherwise recognized as valid and enforceable under
Section 8(e). The court reviewed the legislative history and
the scheme of the statute and concluded:
We believe that the Congress used "coerce" in the
section under consideration as a word of art, and that
it means no more than non judicial acts of a compel-
ling or restraining nature, applied by way of concerted
self help consisting of a strike, picketing or other eco-
nomic retaliation of pressure. . . . [id. at 686.]
The -Board, consistent with the court's decision in Hardy
Corporation, has always taken the position that the resort to
court action to obtain compliance with secondary "on site,
subcontracting agreements cannot be viewed as impermis-
sible "restraint" or "coercion" under Section 8(b)(4)(ii).
Ets-Hokin Corporation, supra; George Koch Sons, supra;
Centlivre Village Apartments, supra. In addition, since de-
ciding Clyde Taylor, Clyde Taylor Company, 127 NLRB 103
(1960), the Board has consistently held that the filing of a
civil suit in a court of law cannot be found to be an unfair
labor practice. See, United Aircraft Corporation, Pratt and
Whitney Division, 192 NLRB 382, 384 (1971) and cases cit-
ed therein at footnote 12. In Clyde Taylor Company the
8 N.L R. B. v Fruit and Vegetable Packers & Warehousemen, Local 760 et
al, [Tree Fruits], 377 U.S 58, 68 (1964).
v Smith Steel Workers, directly affiliated Local Union 19806 v A. O. Smith
Corporation , 420 F.2d I, 9 (C.A 7, 1969).
538 DECISION OF NATIONAL LABOR RELATIONS BOARD
Board majority reasoned : "The Board should accomodate
its enforcement of the Act to the right of all persons to
litigate their claims in court, rather than condemn the exer-
cise of such right as an unfair labor practice ." 127 NLRB
at 109.
The General Counsel, acknowledging the Clyde Taylor
Corporation and Hardy Corporation cases, and their proge-
ny, contends that the instant case is distinguishable be-
cause Respondent is asking the court to award it punitive
damages in addition to compensatory damages . In support
of his position the General Counsel relies upon three recent
Board decisions in which the Board indicated that a
union 's use of a contractually agreed-upon forum to de-
termine whether a secondary boycott clause legalized by
the construction industry proviso had been breached
would be impermissibly coercive if the amount of money
assessed against the signatory employer was unrelated to
the actual damages caused by the breach of contract. Oper-
ating Engineers, Local Union No. 12 (Acco Construction
Equipment Inc.), 204 NLRB 742 (1973); Plumbers, Local
494 (Associated General Contractors), 207 NLRB 698
(1973); Southern California Pipe Trades etc., (Kimstock Divi-
sion, Tridair Industries, Inc.), 207 NLRB 711 (1973). None
of these cases, however, involved the filing of a lawsuit by
the respondent unions . Whether a lawsuit for punitive
damages amounts to unlawful restraint or coercion was not
before the Board and was not discussed by the Board in
those cases . Being squarely presented with this issue it is
my opinion that a lawsuit for punitive damages does not
amount to impermissible restraint or coercion within the
meaning of Section 8 (b)(4)(ii). Although a lawsuit asking
for punitive damages may be more coercive than a suit
simply seeking compensatory damages , all lawsuits are
coercive to a greater or lesser degree. The underlying basis
for Hardy Corporation, and its progeny, is not that a law
suit prosecuted under Section 301 (a) of the Act is noncoer-
cive but rather that section 8(b)(4)(ii ) was not intended to
be applied to the use by a union of a lawsuit to enforce a
hot cargo agreement . The reason for this determination is
that Congress , when it enacted the 1959 amendments to the
Act, did not intend to "prevent the judicial enforcement of
an agreement, the validity of which was expressly pre-
served by [Congress]." Hardy Corporation, 332 F.2d at 687.
Nor do I believe that Congress intended the Board to
police the reasonableness of the damages sought by unions
in suits brought under Section 301 (a) of the Act for alleged
violations of valid 8(e) agreements. Inquiry of the Board
into the multiplicity of factors relevant in determining
whether a claim for punitive damages is without basis or
whether the amount of compensation sought is otherwise
unrelated to actual damages would lead the Board into an
area which Congress did not intend . Such issues should be
decided by the courts which , in assessing the reason-
ableness of a union 's claim for damages or other relief, will
often be able to draw on their experience in areas of the
law apart from labor relations. This is especially true in an
area of the law such as this which is still in its formative
stages of development . See generally Holodnak v . A vco Cor-
poration,10 where Judge Lumbard in reaching the conclu-
10 87 LRRM 2337 (D.C. Conn., August 15, 1974).
sion that punitive damages were available as a remedy un-
der Section 301(a) commented:
Generally in contract cases punitive damages are
available when the defendant's actions might also be
tortious [cite]. There is no reason to believe that the
district courts cannot apply general contract principles
in Section 301 actions where such principles are con-
sistent with federal labor law policies [cite]. Unlike the
NLRB . . . the federal courts are not administrative
agencies with limited expertise but are forums that of-
ten balance a wide range of concerns in rendering de-
cisions. [Id. at 2349.1
In evaluating the contention that the Respondent's law-
suit was coercive within the meaning of Section 8(b)(4)(ii) I
have considered the cases cited by the General Counsel
where the Board has held that a union's lawsuit to enforce
a disciplinary fine imposed upon an employee who has re-
signed from the union before engaging in the conduct (i.e.,
refusing to honor a union's picket line) for which the disci-
pline was imposed, "restrains" or "coerces" the individual
within the meaning of Section 8(b)(1)(A) of the Act. E.g.,
Booster Lodge No. 405, JAM (The Boeing Company), 185
NLRB 380 (1970). These cases, in my opinion, are signifi-
cantly distinguishable from the instant situation. The vice
in collecting a fine by means of a lawsuit is manifestly not
independent of the illegality of the fine and its imposition.
The illegality lies not in the lawsuit to collect the fine but in
the union's act of imposing the illegal fine. In other words,
but for the imposition of the illegal fine there would be no
unfair labor practice and no lawsuit. This is not the situa-
tion in the instant case. Here, absent the lawsuit, there
would be no unfair labor practice. The lawsuit in effect is
the unfair labor practice. This distinction was recongized
by the Board in International Association of Mechinists et
al., (Union Carbide Corp.), 186 NLRB 890 (1970), reaffirm-
ing 180 NLRB 875. There 6 months before unfair labor
practice charges were filed the charging parties, individual
employees, resigned from the union and crossed the
union's picket line and were fined by the union for improp-
er conduct. Thereafter, within the 10(b) limitation period,
the union threatened to sue and instituted state court pro-
ceedings to collect the fines. The Board held that since "all
of the operative facts necessary to make out the claimed
violation occurred more than 6 months prior to the filing of
the charges," the complaint was time-barred under Section
10(b) and dismissed it without reaching the merits. The
Board reasoned that the conduct within the 10(b) period-
the union's threat to file a lawsuit and the lawsuit-would
be unlawful only if "the fines were illegally imposed." 180
NLRB at 877.11
Finally, I have considered and reached the conclusion
that even though Respondent through its lawsuit is at-
tempting to force Fulton to agree to an unlawful interpre-
tation of the subcontracting agreement, this is not suffi-
cient to taint the lawsuit with illegality. The merit of
11 The Court of Appeals reversed the Board on this issue (Judge Bryan
dissenting). Luther W. Shumate, et a! v . NL.R.B., 452 F.2d 717 (C.A. 4,
1971). However, the Board on remand, although it adopted the court's
position for purposes of that case, made clear that it did not acquiesce in the
court's view of the law. 196 NLRB 785. (1972).
OPERATING ENGINEERS , LOCAL UNION NO. 12
Respondent 's lawsuit, in my opinion , is a matter for the
court and is not relevant in deciding whether the act of
bringing the suit constitutes impermissible restraint or
coercion . In any event , the record does not demonstrate
that Respondent filed its lawsuit in bad faith rather than
out of a sincere desire to enforce its subcontracting agree-
ment. The mere fact that Respondent's attorney included a
count for punitive damages is not sufficient to establish
that Respondent was motivated by an ulterior motive or
illegal purpose in filing the lawsuit. This is particularly true
where, as here, Respondent has handled its dispute with
Fulton in the manner that the parties agreed upon in their
collective-bargaining agreement.
Based upon the foregoing reasons I find that
Respondent's lawsuit filed in the State Superior Court un-
der Section 301(a) did not constitute threats , restraint, or
coercion within the meaning of Section 8(b)(4)(ii) of the
Act, and for this reason conclude that Respondent did not
violate Section 8(b)(4)(ii)(A) as alleged in the complaint.
Accordingly, I shall recommend that this allegation be dis-
missed in its entirety.
THE REMEDY
Having found that Respondent herein has engaged in
certain unfair labor practices violative of Section 8(e) of
the Act, I shall recommend that it cease and desist there-
from and take certain affirmative action in order to effec-
tuate the policies of the Act. Also, because the short-form
collective-bargaining agreement involved herein is current-
ly being used by Respondent with other contractors who
are not members of the Associated General Contractors, I
shall recommend that Respondent cease and desist from
entering into , maintaining, giving effect to , or enforcing
article III and article IV of its agreement with Robert E.
Fulton or any other employer, to the extent found unlawful
herein.
Upon the basis of the foregoing findings of fact and the
entire record , I make the following:
CONCLUSIONS OF LAW
1. Robert E. Fulton is an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Respondent, International Union of Operating Engi-
neers, Local Union No. 12, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By entering into and maintaining article III and arti-
cle IV of its collective-bargaining agreement with Robert
E. Fulton Respondent has engaged in unfair labor practic-
es within the meaning of Section 8(e) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not otherwise violated the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record , and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 12
539
Respondent , International Union of Operating Engi-
neers, Local Union No. 12, AFL-CIO, Los Angeles, Cali-
fornia , its officers, agents , and representatives , shall:
1. Cease and desist from entering into , maintaining, giv-
ing effect to, or enforcing provisions in its collective-bar-
gaining agreement with Robert E. Fulton or in its collec-
tive-bargaining agreement with any other employer, to the
extent found unlawful herein.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its business offices and meeting halls copies
of the attached notice marked "Appendix." 13 Copies of
said notice , on forms provided by the Regional Director
for Region 21, after being duly signed by a representative
of Respondent, shall be posted by said Union immediately
upon receipt thereof , and be maintained by it for 60 con-
secutive days thereafter , in conspicuous places , including
all places where notices to members are customarily post-
ed. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered , defaced , or covered
by any other material.
(b) Sign and mail to said Regional Director sufficient
copies of the aforementioned notice for posting at the
premises of Robert E. Fulton, if willing.
(c) Notify the Regional Director for Region 21, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
12 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall , as provided in
Sec 102 .48 of the Rules and Regulations, be adopted by the Board and
become its findings , conclusions , and Order, and all objections thereto shall
be deemed waived for all purposes.
13 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
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 collective-bargaining agreement
with Robert E. Fulton or with any other employer to
the extent that they violate Section 8(e) of the Nation-
al Labor Relations Act.
INTERNATIONAL UNION OF OPERATING ENGINEERS,
LOCAL UNION No. 12, AFL-CIO