Orange Belt District Council Of Painters No. 48, Afl--Cio, Clc

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1372 (N.L.R.B. 1985)

1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Orange Belt District Council of Painters No. 48,
AFL-CIO, CLC and Maloney Specialties, Inc.
Cases 21-CC-1873 and 21-CE-178
30 September 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 16 February 1979 Administrative Law Judge
Maurice M. Miller issued the attached decision.
The Respondent and the Charging Party filed ex-
ceptions and supporting briefs; the General Counsel
and the Charging Party filed briefs in response to
the Respondent's exceptions.
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 1 and to adopt the recommended
Order. 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Orange Belt
District Council of Painters No. 48, AFL-CIO,
CLC, Riverside, California, its officers, agents, and
representatives, shall take the action set forth in the
Order.
I We agree with the judge that in light of the complaint allegations it
is unnecessary to consider whether the Respondent 's resort to the griev-
ance procedure violated Sec . 8(b)(4), and we do not reach that question.
2 See Operating Engineers Local 701 (Lease Construction), 276 NLRB
597 (1985)
Edward P. Nichols, Esq., of Los Angeles, California, for
the General Counsel.
Herbert M. Ansell, Esq., of Los Angeles, California, for
Respondent Union.
John D. Collins, Esq. (Luce, Forward, Hamilton and
Scripps), of San Diego, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MAURICE M. MILLER, Administrative Law Judge. On
charges filed May 19, 1977, and duly served, the General
Counsel of the National Labor Relations Board caused a
consolidated complaint and notice of hearing dated Oc-
tober 31, 1977, to be issued and served on Orange Belt
District Council of Painters No. 48, AFL-CIO, CLC
(Respondent Union). Respondent Union was charged
with the commission of unfair labor practices affecting
commerce within the meaning of Section 8(e) and Sec-
tion 8(b)(4)(ii)(A) of the National Labor Relations Act.
Respondent Union's answer, duly filed and subsequently
amended, tacitly conceded certain factual allegations
within the General Counsel's consolidated complaint,
through failures to plead in response, proffered further
factual concessions, but denied the commission of any
unfair labor practices.
Pursuant to notice, a hearing with respect to these
consolidated matters was held before me on March 23
and 24, 1978, in San Diego, California. The General
Counsel, Respondent Union, Complainant were repre-
sented by counsel. Each party was afforded a full oppor-
tunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence with respect to perti-
nent matters.
Since the hearing's close, the General Counsel's repre-
sentative, Respondent Union's counsel, and Charging
Party's counsel have filed briefs, These briefs have been
duly considered.
On the entire testimonial record, documentary evi-
dence received, and my observation of the witnesses, I
make the following
FINDINGS OF FACT
The situation which this consolidated matter presents
for Board consideration derives from certain contractual
relationships-together with various developments con-
sequentially generated, and presumptively regulated,
thereby-between three business enterprises. The present
record warrants the following preliminary determina-
tions.
McKellar and Associates (McKellar) was-throughout
the period with which this case was concerned-doing
business as a general contractor and developer within the
southern California building and construction industry.
Specifically, throughout most of the calendar year 1976,
McKellar functioned as the general contractor and de-
veloper for a residential construction project known as
La Jolla Village Tennis Club, with a La Jolla, California
location. That project, so the record shows, involved the
construction of some 120 condominium apartments, plus
2 tennis courts. Construction commenced in February
1976; March 1977 finally marked the project's comple-
tion date. Throughout the project's period of construc-
tion, noted, McKellar was privy to collective-bargaining
contracts with both Carpenters and Laborers labor orga-
nizations which were directly negotiated. In connection
with the firm's project, the developer had negotiated
some 28 construction subcontracts. Of these, only
three-the firm's subcontracts for lumber, finished hard-
ware, and appliances-had not called for jobsite con-
struction work. By November 22, 1976, specifically
(which date will mark several developments considered
significant in connection with the present litigation) 7 of
McKellar's 28 subcontracts had already been completely
performed. Of some 21 subcontracts which had been
started, prior to November 22, but which had not yet
been completed, 3 (concerned with framing, painting,
and landscaping) were known to involve subcontractors
functioning subject to collective-bargaining agreements;
when this case was heard, the number of remaining job-
276 NLRB No. 156
PAINTERS ORANGE BELT DISTRICT COUNCIL 48 (MALONEY SPECIALTIES)
site construction subcontracts which had likewise been
performed under unionized conditions was not, however,
known.
Maloney Specialties, Inc. (the Charging Party, Com-
plainant, and Maloney) is now, at all times material
herein has been, a corporation engaged in southern Cali-
fornia's building and construction industry, functioning
as both a general contractor and plastering and drywall
subcontractor. In the normal course and conduct of its
business operations, Maloney purchased and received
goods valued in excess of $50,000 yearly, from suppliers
located within the State of California, each of which, in
turn, purchased and received the same goods directly
from out-of-state suppliers. On April 13, 1976, McKellar
granted Maloney two contracts, to perform (1) all
drywall, taping, heatfill, and simulated acoustic ceiling
work, and (2) all exterior lath and plaster and plastering
of block walls, on McKellar's La Jolla Village Tennis
Club project.
Roger F. Hunt, d/b/a M. G. Plaster & Drywall Com-
pany functioned, throughout most of the period with
which this case is concerned, as both a plaster and
drywall subcontractor, within the southern California
building and construction industry On May 17, 1976,
Hunt signed a subcontract agreement with Maloney;
therein, Hunt contracted to perform all work which
Complainant had itself previously contracted to perform
for McKellar, within the later firm's La Jolla Village
Tennis Club project.
With the matters in this posture, I find that Maloney
was, throughout the period with which this case is con-
cerned, and remains, an employer within the meaning of
Section 2(2) of the Act, engaged in commerce and busi-
ness operations which affect commerce within the mean-
ing of Section 2(6) and (7) of the statute. Further, I find
that, throughout the period with which this case is con-
cerned, McKellar, Maloney, and Hunt were, and remain,
persons engaged in commerce or in an industry affecting
commerce within the meaning of Section 8(b)(4)(ii)(A) of
the statute.
II. THE LABOR ORGANIZATION CONCERNED
Respondent Union, Orange Belt District Council of
Painters No. 48, AFL-CIO, CLC, is, and throughout the
period with which this case is concerned has been, a
labor organization within the meaning of Section 2(5),
Section 8(b), and Section 8(e) of the Act, whose constit-
uent locals have, heretofore, received certain Maloney
and Hunt employees as members. Throughout the period
material herein, both Gordon L. Williams, Respondent
Union's business representative, and George Hartman,
Respondent Union's executive secretary, have functioned
as Respondent Union's agents, within the meaning of
Section 2(13) of the statute.
1373
III. THE UNFAIR LABOR PRACTICES
A. Facts
1. Background
a. The Association contract
During calendar year 1974, Respondent Union, togeth-
er with two other District Councils of Painters and
Allied Trades, negotiated and signed a collective-bar-
gaining contract with Southern California Drywall Con-
tractors Association, Inc. This contract (the Southern
California Drywall Finishers Joint Agreement) became
effective July 1, 1974; it provided for a 3-year term, with
a specified June 30, 1977 termination date. The contract
(art. 4, sec. 1) provided that other concerned employers,
nonmembers of the signatory association, could become
bound thereby through their execution of a joint agree-
ment counterpart document , consistently with article 4,
section 7 therein. Further, with respect to subcontracts
by contractually bound drywall contractors, the joint
agreement (art. 4) provided that:
9. SUBLET WORK:... .
13. The employer agrees that in the event he sub-
contracts any work covered by this Agreement, the
subcontract shall be in writing and a copy submitted
to District Council of Painters and Allied Trades in
whose jurisdiction the work will be performed. A
copy must be submitted to the Administrative
Office prior to commencement of the job by the
subcontractor. The subcontracting agreement shall
contain a provision that the subcontractor shall be
responsible for the payment of all the wages and
fringe benefits provided under this Agreement. In
the event that any subcontractor fails to pay the
wages or fringe benefits provided under this Agree-
ment, the employer shall become liable for the pay-
ments of such sums and such sums immediately
become due and payable by the employer.
C. CONTRACTS: The employer signatory to
this Agreement hereby agrees he will not subcon-
tract any work covered by this Agreement unless
the subcontractor is properly licensed and signatory
to this Agreement.
Within their contract , the signatory parties further pro-
vided for the creation and maintenance of the Southern
California Drywall Finishers Administrative Fund,
which several designated Administrative Fund trustees
would handle. These trustees were to maintain a contrac-
tually mandated administrative office-specifically desig-
nated a bi-partisan agency within the contract-which
would be responsible for maintaining "all files and
records" required for the joint agreement's administra-
tion, for registering all contractually bound contractors
throughout the contract year, for performing "necessary
administrative chores" required in connection with any
contractual grievance/arbitration proceedings, and for
performing "such other tasks" pertinent to the joint
agreement's administration as the Fund trustees might re-
quire . The contract specifically provided that the admin-
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
istrative office staff should have "no authority to inter-
pret the Agreement, resolve grievances or perform any
other acts" properly within the purview of the joint
agreement's several District Council or Contractors As-
sociation signatories.
The collective-bargaining contract now under consid-
eration further contained several self-help or self-enforce-
ment provisions, which Respondent Union, together with
its sister District Council signatories, could pursue, given
certain circumstances. For example: The joint agreement
(art. 4, sec. 13) provided that contractually bound em-
ployers could not "assign" contractual terms or condi-
tions without a signatory labor organization's consent,
and that signatory contractors could neither "directly or
indirectly" permit "any person or business entity" to
enjoy contract benefits by utilizing the name or business
entity of some signatory firm; should a violation of these
prohibitions occur, the signatory labor organizations
were "authorized" to "terminate' the joint agreement
forthwith.
Likewise, the contract (art. 8, sec. 3) provided that
members of local unions affiliated with the District
Council signatories could not work for contractually
bound employers "lawfully indebted" to the joint agree-
ment 's administrative office, any concerned local union,
District Council signatories, their respective trust funds,
or their "employees" by reason of their breach of any
contract of hire, or some breach of the joint agreement's
terms. In this connection, the contract in question pro-
vided that:
No member of any local affiliated with District
Council of Painters and Allied Trades Nos. 36, 48
or 52 shall work on any job where a defaulting con-
tractor has failed to pay wages or fringe benefits or
who is delinquent with same.
Within, the joint agreement's self-same article, several
more self-help or self enforcement provisions could be
found. Specifically-regarding the contractual obliga-
tions of signatory employers who may have "taken
over" contracts for construction work partially complet-
ed by some other contractor-the joint agreement re-
quired written notification directed to the District Coun-
cil concerned, and to the contract's administrative office
by the successor contractor coupled with written permis-
sion from the concerned District Council, before such a
successor firm might commence work. In relevant part,
the contract provided: ,
[Article 8] 4. . . . On any job or project that has
been partially completed by one contractor, and
work thereon has stopped because of the failure of
the contractor to meet his current obligations and
money is due and payable to employees either as
wages or fringe benefits, it shall not be a violation
of this Agreement for the Union to refuse to permit
persons covered by this Agreement to work on said
job or project until such wages and fringe benefits
have been paid. It shall not be a violation for the
Union likewise to remove workmen who are work-
ing on said job. The Union's right to refuse to
permit workmen to work or the Union's right to
remove workmen from the job because of unpaid
wages and fringe benefits may be taken without
prior resort to the grievance and arbitration proce-
dures contained in this Agreement .. . .
Contractors taking over partially completed projects,
with a concerned District Council's written permission,
were to stand "absolved from all prior obligations" relat-
ed to the project concerned . Should a contractually
bound drywall contractor commencing such work, how-
ever, fail to give his contractually required notices, and
receive no written District Council permission to begin
work, that successor contractor would become " liable
and responsible" for all previously unpaid wages and
fringe benefits due and owing for work performed on the
job concerned , with all such delinquencies due and pay-
able immediately , whenever the replacement contractor's
men started their jobsite work. The joint agreement's rel-
evant section further provided that:
Regardless of the foregoing , after all known wages
and fringe benefits are paid, workmen may be fur-
nished to the contractor commencing work at the
jobsite, upon the execution of a written memoran-
dum with the general contractor wherein the gener-
al contractor agrees to pay all the unpaid wages and
fringe contributions due and owing, known or un-
known, for any and all work previously performed
on said' job.
Then, within the contract 's article 8 , section 5, directly
following, the document 's signatories agreed that no
party "whether employer or employee" should "work
for or with" or "employ on any job " persons who have
violated the contract , or who have "failed or refused to
comply" with decisions rendered by any contractually
provided grievance adjustment tribunals or some arbitra-
tor's decision rendered pursuant to contract.
Within the subsequent article, the joint agreement pro-
vided for judicial tribunals , plus a designated "arbitrator"
qualified to resolve "grievance disputes and alleged hard-
ships" concerned with persons who may have violated
"any of the respective Articles" within the collective-
bargaining contract . Further, the document in question
reflected a consensus between the parties bound thereby
that disciplinary proceedings before a contractually man-
dated joint judicial committee would be considered "part
of arbitration" designed to produce a decision regarding
any claimed contract violations ; that joint judicial com-
mittee decisions could be appealed before the contract's
designated arbitrator; that committee decisions or arbitra-
tor's decisions might require payments of liquidated dam-
ages for joint agreement violations, consistently with a
contractually defined schedule , because:
The parties recognize and acknowledge that com-
pliance with the requirement to pay wages , fringe
benefits, and to abide by the regulations , and other
conditions of the contract , are essential to the main-
tenance of this Agreement, the health and safety of
workmen, and fairness to all employees and em-
ployers in the industry and that it would be ex-
tremely difficult if not impracticable to fix the
PAINTERS ORANGE BELT DISTRICT COUNCIL 48 (MALONEY SPECIALTIES) 1375
actual expense and damage to the workmen and the
industry for any failure to comply with the provi-
sions of this Agreement. The schedule of liquidated
damages set forth in Article 9 of this Agreement
represents a reasonable estimate of the damages suf-
fered by reason of various type infractions of this
Agreement. Any liquidated damages assessed by the
Joint Judicial Committee and/or the Arbitrator
shall become due and payable to the Administrative
Office as liquidated damages and not as penalty.
Within the decision disciplining contract violators, the
Joint judicial committee or arbitrator was further author-
ized to suspend contractual "rights" which such violators
might have. The joint agreement 's article 9, now under
consideration, further provided, in material part, that:
2. ARBITRATION:. . .
B. Employees shall not enter or, if already em-
ployed, remain in the employ of an employer who
willfully neglects or refuses to abide by the provi-
sions of the Agreement paertaining to the Joint Ju-
dicial Committee and/or Arbitrator procedures or
who, after due hearing as described hereinabove, re-
fuses to abide by the decision rendered either by the
Joint Judicial Committee or the Arbitrator . . . .
4. It is mutually agreed that the union shall have
the right to remove its members from any job to en-
force the provision [sic] of this Agreement.
Within a contractual provision (art. 19), concerned with
wage payment procedures, the joint agreement (sec. 3-B)
provided that no union member should continue work
for any employer whose checks have not been honored
or who fails to pay on his stipulated payday. The con-
tract further provided that workmen "shall not return to
work" before outstanding paychecks have been honored
and satisfactory arrangements for other payments have
been made.
Finally, the joint agreement contained a severability
clause (art. 30), which sets forth a contractual consensus
that should any portion thereof be judicially declared il-
legal or invalid, the remainder of the contract should not
be affected thereby.
b. The counterpart contract
On December 18, 1975, Maloney Specialties, Inc., by
William A. Maloney, signed a short "Agreement Coun-
terpart" form whereby the complainant firm became a
party bound by the Southern California Drywall Finish-
ers Joint Agreement, then in force, together with the
"Other parties" originally signatory thereto. These signa-
tories, specifically designated within Maloney's signed
counterpart document, compassed Respondent Union
herein. (Previously, specifically on May 6, 1975, Ma-
loney Specialties, Inc., by Noel Kellison, had signed a
similar counterpart document. Following a change of
ownership, which had-so the record shows-necessitat-
ed the firm's procurement of a new State of California
contractor's license, Complainant's president had been re-
quested to sign a second agreement counterpart form.
For present purposes, therefore, Maloney's signed De-
cember 18, 1975 form reflects the contractual commit-
meat with which we are herein concerned .) William A.
Maloney's counterpart signature , as Complainant's au-
thorized representative , was "witnessed" by a signatory
representative of the joint agreement's administrative
office, previously noted. Though no known representa-
tive of Respondent Union, specifically designated as
such, signed Complainant 's newly executed counterpart
document concurrently, both Maloney and Respondent
Union considered themselves clearly, bound by their
formal "accessory" contract created and manifested
thereby. See 17 Am.Jur.2d Contracts § 46, 70, in this con-
nection. I so find.
c. Maloney's business operations
Throughout the period with which this case is con-
cerned, Complainant held both general contractor and
specialty contractor licenses. During calendar year 1976,
however, Maloney functioned as a general contractor on
some 20 percent of the firm 's contract projects, merely;
some 80 percent of Complainant 's construction work in-
volved specialty subcontracts. Within 1976's last 6
months, Maloney was "maybe " working on 3 to 5 jobs
simultaneously , while completing work in between 50
and "maybe" 100 projects . On some of these, Complain-
ant had, so the record shows, further subcontracted
"some" work.
During April 1976, before General Contractor McKel-
lar had given Maloney the particular La Jolla Village
Tennis Club subcontracts with which we are herein con-
cerned, Complainant firm was privy to previously nego-
tiated "active, signed" collective-bargaining contracts
with some eight labor organization ; the record warrants
determinations , which I make , that contracts had been
signed with Carpenters , Sheet Metal Workers , Dry Wall
Hangers, Painters , Lathers, Plasterers , and Laborers
councils or locals, plus Respondent Union herein. Malon-
ey's original May 1975 commitment to be bound by Re-
spondent Unions Dry Wall Finishers Joint Agreement
had been negotiated , so the record , while Complainant
was working on a subcontract , granted by a general con-
tractor, Big Bear Construction , which covered several
phases of that general contractor's project, then current,
with drywall "taping" included . The testimonial record
further warrants a determination, which I make, that Ma-
loney's Big Bear subcontract, noted , concerned the first
construction project-since July 1969 at least-wherein
Complainant firm had been required to perform drywall
finisher's work, within Respondent Union's trade juris-
diction. (My conclusion , in this connection, derives from
hearsay testimony which Maloney's vice president
Robert Daggett proffered. That testimony, however,
stands without contradiction. Within its record context,
it comports with logical probabilities . I consider it
worthy of credence) However, between Complainant's
May 1975 Big Bear subcontract and April 1976, when
Maloney became responsible for La Jolla Village Tennis
Club contracts material herein, the firm, so far as the
record shows, contracted for and performed "somewhere
between 10 to 20" job projects compassing "paint or dry
wall" work , which Respondent Union 's Drywall Finish-
ers Joint Agreement would have covered . Maloney's
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
construction superintendent, Edward Grobarek, so testi-
fied; he declared that "everything [required by joint
agreement provisions] was taken care of" to the best of
his knowledge.
d. Maloney 's subcontract with Hunt
Previously , within this decision, reference has been
made to General Contractor McKellar 's separate April
13, 1976 contracts with Complainant ; pursuant thereto,
Maloney became committed to perform ( 1) all drywall,
taping, heatfill , and simulated acoustic ceiling work, and
(2) all exterior lath and plaster , and plastering of block
walls, for McKellar's La Jolla Village Tennis Club
project.
Complainant 's formal subcontracts , inter alia (sec. 7),
provided that should it fail to comply , or become dis-
abled from complying , with contractual provisions gov-
erning its character and time of performance McKellar
might "take over and complete" the subcontractor's per-
formance ; further, it provided that McKellar might, al-
ternatively, furnish necessary materials and/or hire the
workmen necessary to remedy the situation , with Ma-
loney liable for any expenses generated in connection
with either procedure . McKellar's subcontract form (sec.
9) bound Complainant not to assign , transfer, or sublet
any portion of the subcontracted work, without the
owner/builder's written consent. Maloney was, likewise,
contractually (sec. 11 ) committed:
To pay promptly all valid bills and charges for ..
labor in connection with or arising out of this Con-
tract, and will hold Owner/Builder of the property
.. . free and harmless against all liens and claims
f o r labor ... filed against the property . .. .
Finally, Complainant was contractually bound to make
all payments , reports, collections, and deductions re-
quired, in connection with the hire, tenure , or conditions
of employment of employees, their hours of work, rates
of pay, and wage payments.
On May 17, 1976, however, Maloney negotiated and
signed a single subcontract with Roger F. Hunt, sole
proprietorship , d/b/a M . G. Plaster & Drywall; thereby,
Hunt became committed to perform "all the work"
which Complainant had previously contracted to provide
on McKellar 's La Jolla Village Tennis Club project,
within both subcontracts previously noted, Complainant
firm, inter alia (sec. 3), committed itself to compensate
Hunt for materials furnished and work performed, con-
sistently with billings which the latter would submit
weekly. Such billings were to cover "all labor and mate-
rials delivered to jobsites ," plus work which McKellar
had accepted . Maloney's subcontract required further
that Hunt submit "labor releases , tax, FDIC, and Union
benefits reports" with his billings . Complainant's con-
tract, likewise, contained provisions (sec. 7) dealing with
Hunt's possible "Failure to Peform" which paralleled
comparable provisions within the April 13 McKellar-Ma-
loney contracts , previously noted . Like Maloney, Hunt
was contractually (sec. 11 ) committed bills and charges
promptly. Finally, Maloney's subscontract form (sec. 13)
reflected Hunt's contractual commitment-specifically
with reference to the hire, tenure, or conditions of em-
ployment of employees, and their hours of work, rates of
pay, and wage payments-that he would:
... keep and have available all neccessary records
and make payments, reports, collections and deduc-
tions . . . so as to fully comply with all Federal,
State, and Municipal laws, Union benefits, ordi-
nances and regulations in regard to any and all
[such matters] .. .
The record herein warrants a determination, which I
make, that Complainant's subcontract-summarized in
relevant part-constituted the firm's very first contrac-
tual arrangement calculated to transfer responsibility,
completely, for "all the work" covered by specialty con-
tract commitments previously negotiated with a con-
struction project's developer.
Within a period of several weeks thereafter-never de-
fined precisely for the present record-the subcontractor
commenced work on McKellar's La Jolla Village Tennis
Club project, pursuant to Maloney's subcontract. Com-
plainant, so far as the record shows, never had any craft
workers, hired directly, or paid directly by the firm, per-
forming services on McKellar's construction }obsite.
e. Subsequent developments on McKellar's project
Throughout the period with which we are presently
concerned, Hunt, d/b/a M. G. Drywall was concededly
a licensed contractor. He had previously provided serv-
ices on Maloney subcontracts with respect to several
"small" construction projects. (While a witness, Edward
Grobarek, Maloney's construction superintendent, char-
acterized Hunt's performance record on these prior sub-
contracts as satisfactory.) The present record, within my
view, warrants a determination-which I make-that
various craft workers in Maloney's hire had, likewise,
performed "some" work on these small projects; Hunt's
participation, in short, had compassed merely portions of
Maloney's complete service and material commitments.
Further, Hunt had-so Grobarek's testimony, proffered
without contradiction, shows-provided comparable sub-
contract services for several other contractors.
Within a few weeks subsequent to Hunt's receipt of
Maloney's contract-sometime during early June 1976,
presumably-the subcontractor commenced work on
McKellar's La Jolla Village Tennis Club project. Be-
tween June and November 1976, his work crew, repre-
senting several crafts, varied in size daily; Maloney's
construction superintendent testified that Hunt's crew
complement, day by day, fluctuated between 40 and 70
men. (Most of these, Grobarek recalled, had been lathers,
plasterers, and laborers. The present record provides no
definitive information regarding the work records of
Hunt's drywall "sheet rock" hangers; Maloney's con-
struction superintendent testified, merely, that Hunt's
drywall finishers-likewise designated "tapers" within
the present record-had worked sporadically. When
their services were required, Grobarek recalled, Hunt re-
tained between four and eight tapers per day, merely.
The construction superintendent could speculate-with
due regard for labor "turnover" patterns commonly
PAINTERS ORANGE BELT DISTRICT COUNCIL 48 (MALONEY SPECIALTIES) 1377
found on construction projects-that Hunt might have
hired 20 different drywall finishers at one time or an-
other within the 5-month period with which we are pres-
ently concerned ; his testimonial comments in this con-
nection, however, clearly reflect guesswork, merely.)
The present record, further, warrants a determination,
which I make, that when Maloney subcontracted both
McKellar project contracts with which we are herein
concerned his subcontractor reported currently viable
commitments to collective-bargaining contracts with
concerned Laborers, Plasterers, and Lathers labor orga-
nizations; Complainant's construction superintendent,
however, recalled Hunt's contemporaneous declaration
that he had not yet signed any comparable contract with
Respondent Union herein. Grobarek testified that, to the
best of his knowledge, the subcontractor had hired La-
borers, Plasterers, and Lathers union members for work
on McKellar's project. While a witness, Maloney's
spokesman conceded, however, that he lacked definitive
"knowledge" with respect to whether Hunt had actually
paid his hired lathers, plasterers, and laborers their con-
tractually specified wages and fringe benefits; he had
merely "assumed" Hunt's compliance with his previously
conceded contractual commitments.
During the 5-month period with which we are con-
cerned, between mid-June and November 22, 1976, spe-
cifically, the subcontractor had no personal contact, so
far as the record shows, with any direct representative of
Respondent Union herein.
However, with regard to developments which, con-
ceivably, might warrant a determination that Respondent
Union's business representative, nevertheless, did learn
about Hunt's contractually mandated presence on
McKellar's La Jolla Village Tennis Club project, much
testimony was proffered; that testimony reflects substan-
tial conflict.
Summoned as the General Counsel's witness, Con-
struction Superintendent Grobbarek testified that when
Complainant subcontracted both of its McKellar project
contracts to Hunt the subcontractor was specifically told
he would have to sign collective-bargaining contracts
with a Carpenters Union division representing "drywall
hangers" plus a properly determined "tapers" bargaining
representative-beyond the three labor organizations,
previously noted, with which he had previously estab-
lished contractual relations-specifically to satisfy his
subcontract's requirements; that during a late May/early
June jobsite meeting he (Grobarek) discovered, neverthe-
less, that Hunt had not yet sone so, but would make "ar-
rangements" with respect to signing both contracts
shortly thereafter; that he, Maloney's construction super-
intendent, then telephoned Milton Bruce Mayfield, San
Diego field representative of the joint agreement's ad-
ministrative office, who would-presumably-procure
Hunt's counterpart contract signature; that Mayfield was
told Hunt would be communicating with him to arrange
their forthcoming "appointment" date; that Grobarek
nevertheless requested Mayfield to telephone Hunt him-
self to determine the subcontractor's projected "counter-
part" signature date; that Hunt subsequently told him he
had become a Carpenters Union contract signatory,
while reporting that his projected "appointment" date
with Mayfield, during which a counterpart "tapers" con-
tract could have been signed, had been missed, but
would be reset; that during a subsequent late June/early
July telephone conversation Mayfield reported, neverthe-
less, he had not yet seen Hunt, but anticipated no diffi-
culty in procuring the subcontractor's counterpart form
signature; that he thereupon specifically requested the
administrative office field representative to telephone
him should Mayfield discover any problems; and that-
since Mayfield never telephoned thereafter-he pre-
sumed Hunt had become a counterpart signatory, bound
by Respondent Union's joint agreement, previously nego-
tiated.
Respondent Union"s several witnesses, however, when
queried with regard to developments between June and
November 1976, proffered significantly divergent recol-
lections . Their testimonial recitals-within my view-
cannot be readily reconciled.
For example: Keese Kennedy, Hunt's designated
"taper" foreman-who had been hired sometime in June
and had commenced work during July's second week-
testified that, when hired, he had known nothing with
regard to Hunt's status as Maloney's subcontractor; that
Hunt, when queried, had declared his work on McKel-
lar's project "would be a union" without qualification;
that, sometime during August 1976, presumably, he had
raised several questions regarding Hunt's payroll calcula-
tion methods; that, having decided he might subsequent-
ly require Respondent Union's support during a possible
pay dispute, he had then sought a work referral, belated-
ly. from Respondent Union's business representative; that
he had requested a referral to Hunt, d/b/a M. G.
Drywall; that when told Hunt was not a Drywall Finish-
er's joint agreement signatory, he had conferred with
Maloney's construction superintendent while on McKel-
lar's jobsite; that Grobarek had told him Complainant
was a joint agreement signatory and that he could there-
fore request a work referral to Complainant, specifically;
that he had subsequently telephoned Respondent Union's
business representative Gordon Williams with double-
barrelled report that Maloney was a joint agreement
counterpart agreement signatory, though Hunt could not
claim such status; that Business Representative Williams
had thereupon given him a telephonic "O.K. to continue
working; that, with matters in this posture he had never
pursued his request for a written work referral; that
when hiring "tapers" for Hunt's crew, thereafter, he had
suggested they request work referrals to Complainant
herein, although Hunt's firm M. G. Drywall would write
their paychecks; but that no more than two job appli-
cants had subsequently followed his suggestion.
The record warrants a determination, which I make,
that these job applicants, Johnny Grand and Fred
Warren, did request work referrals from Business Repre-
sentative Williams on September 27; that, then, they told
Williams-merely-they would be working for Keese
Kennedy in La Jolla; and that Respondent Union's busi-
ness representative had, thereupon, provided them-on
his own initiative-with work referrals wherein Maloney
Specialties, Inc. was designated their prospective em-
ployer.
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Summoned as Respondent Union's witness, Business
Representative Williams declared that he had learned
about Maloney's connection with McKellar's La Jolla
Village Tennis Club project, first, following his "mid-
July" or "early August" contact with Keese Kennedy,
when the latter sought a work referral. Williams, who
had then been "in the field" communicating with his sec-
retary by telephone, had learned-so he recalled-that
Kennedy had requested a formal referral for work with
Hunt, but that Respondent Union's records did not desig-
nate Hunt a joint agreement signatory. Further, Re-
spondent Union's Business Representative Williams testi-
fied that Kennedy had, thereupon, been requested to de-
termine his La Jolla project employer's proper name, fol-
lowing which he was to report back; that later that day
he had telephoned McKellar's office that he had been
given Maloney's name as McKellar's contractor of
record; that when Foreman Kennedy subsequently re-
ported he had-likewise-designated Maloney as McKel-
lar's contractor; and that Kennedy had thereupon been
told to procure a work referral from his union local.
(With matters in this posture, Respondent Union's busi-
ness representative-concededly-had conducted no fol-
lowup inquiry, calculated to determine Hunt's precise re-
lationship to, or connection with, Maloney on McKel-
lar's project.) Williams did, however, recall subsequent
September 27 work referral requests presented by two
"tapers" who had reported, merely, that they were
working with "Kennedy" in La Jolla; Williams, so his
testimony shows, had-sua sponte-designated their job-
site "the Maloney job," while giving them work referrals
to Complainant herein. While a witness, Williams could
not, initially, recall relevant subsequent contacts con-
cerned with Maloney or Hunt before the November 22
jobsite contretemps, which will be discussed further
hereinafter.
Despite Williams' testimony, the San Diego Adminis-
trative Office's field representative Mayfield purportedly
recalled-when prompted, in substantial part, by witness-
chair reference to his daily "logbook" notations-that
Business Respresentative Williams had telephoned him
on October 11 to ask whether he knew "anything" re-
garding Hunt, but without reference to a specific project;
that Respondent Union's business representative had
again telephoned him on October 12 to ask whether
Hunt was then "employed" by Complainant herein; and
that Mayfield had then telephoned Maloney, whose
spokesman had reported Hunt was no employee but,
rather, Complainant's subcontractor. (While a witness,
Mayfield declared further that he was "sure" he had re-
layed this information promptly to Respondent Union's
business representative.)
According to Mayfield, Maloney's representative-
when notified, during their conversation, that Hunt was
not a joint agreement signatory-had declared he would
"get" Hunt to visit the administrative office's San Diego
branch to sign a counterpart contract. And, following a
further telephone conversation, this time between May-
field and Hunt, Complainant's subcontractor had, May-
field recalled, promised to visit Mayfield's office the fol-
lowing day. Nevertheless, so Mayfield testified, Hunt
had failed to keep his appointment. When he failed to
report, the field representative, so his testimony shows,
announced his failure to Maloney; some Maloney repre-
sentative, according to Mayfield, reiterated his promise
that Hunt would, ultimately, be persuaded to call. In this
connection, Field Representative Mayfield testified, how-
ever, that Hunt never communicated with him thereafter;
likewise, Mayfield himself never communicated with Ma-
loney further, so he testified, with regard to Hunt's possi-
ble contractual commitment.
When confronted with Grobarek's divergent testimo-
ny, Mayfield could not recall any June or July 1976 tele-
phone conversations with regard to Hunt's presence on
McKellar's La Jolla Village Tennis Club project; nor
could he recall any conversations with regard to Hunt's
nonsignatory status. Indeed, the field representative,
while a witness, declared that his daily "logbook" con-
tained no reference whatsoever to purported 1976 tele-
phone conversations with Maloney's construction super-
intendent.
In turn, Respondent Union's business representative-
when confronted with Mayfield's testimony regarding
their telephone contacts-proffered some less than con-
sistent recollections. At first, he recalled that-during
October 1976 specifically-he had encountered a particu-
lar "taper" while in El Cajon, several miles distant from
McKellar's La Jolla project, who had "said" he was
Hunt's employee. Williams, so his testimony shows, had
wanted to determine who Hunt was; he had therefore
telephoned the administrative office's field representative.
(While a witness, Williams professed "no recollection"
with regard to whether Mayfield had then been queried
regarding Hunt's possible relationship with Complainant
herein. Respondent Union's business representative
claimed that during this period he had never been noti-
fied with regard to Hunt's connection with Maloney, on
McKellar's La Jolla Village Tennis Club project.) Short-
ly thereafter, however, Williams claimed-while a wit-
ness-that he recalled no October 1976 telephone con-
versations with Mayfield, whatsoever, though he conced-
ed that such conversations "could have" happened.
With matters in this posture, several different conclu-
sions could conceivably be considered warranted, par-
ticularly with regard to Respondent Union's presumptive
knowledge-sometime before November 22, 1976, specif-
ically-that Complainant had previously subcontracted
its double-barreled McKellar project responsibilities to
Hunt, d/b/a M. G. Drywall, completely. Nevertheless,
for various reasons-which will be discussed, subse-
quently, within this decision-no present determination
regarding the state of Respondent Union's possible
knowledge, relative to Hunt's particular subcontractual
relationship with Complainant herein, seems necessary.
Considered in totality, the record-within my view-
will, without regard for differences in testimony between
witnesses, support these determinations: That, sometime
before November 22, 1976, Respondent Union's business
representative knew, or had reasonable ground for belief,
that Hunt, pursuant to some sort of contractual arrange-
ment with Complainant herein, had-hired craftsmen to
perform services within Respondent Union's trade juris-
diction, on McKellar's La Jolla Village Tennis Club
PAINTERS ORANGE ]BELT DISTRICT COUNCIL 48 (MALONEY SPECIALTIES)
project; but that Hunt had not-thereafter-become a
joint agreement counterpart signatory.
2. Respondent Union's controversy with Maloney
a. The work stoppage after Hunt's default
On Friday, November 19, Hunt notified Maloney's
management , personally, that he was not going to meet
that day's regular payroll and that he was quitting
McKellar's project, forthwith.
On Monday, November 22, when Maloney's vice
president Robert Daggett and Construction Superintend-
ent Grobarek visited the La Jolla Village Tennis Club
jobsite they found "40 or 50" people "milling around"
generally. Grobarek saw "30 or 40" rank-and-file Hunt
employees, foremen covering, "most of the trades" repre-
sented on Hunt's crew, and McKellar's vice president
and project superintendent William Miller, together with
several craft union representatives . So far as Maloney's
construction superintendent could determine , none of
Hunt's craftsmen were working; his testimony proffered
in this connection , without dispute, merits credence.
Summoned as Respondent Union 's witness, Business
Representative Williams testified, credibly, that a drywall
finisher working on McKellar's project had telephoned
him that morning with a report that Hunt's crew had not
been paid for the previous week. Williams recalled that
he had been requested to visit the jobsite to determine
whether he could "rectify the situation" described. With
respect to subsequent developments , Williams' testimo-
ny-which I find, generally, worthy of credence-reads,
in relevant part, as follows:
I pulled up on the job, and at the time I seen quite a
few tradesmen walking around-construction work-
ers . . . [When] I first got there ][ didn't see any
people that were my members . So I asked a few
guys if the drywall finishers were anywhere around,
and they said yeah , they 're up in an apartment up
there. So, I walked on up the hill, and I got about
halfway up the hill and they came out and started
coming down towards Mme .... [This] was 9:30 in
the morning and none of them had changed clothes.
They were still in their street clothes. And they
came up to me and says they hadn't been paid
. .. . We were talking . . . I was apparently the
first business representative of any labor organiza-
tion on the job because at this time I was surround-
ed by about, I would say, 12 to 15 different people.
And in a matter of a few minutes there was guys
shooting questions at me , asking where their busi-
ness representatives was . . . . They were having
troubles; they were going-there was going to be
trouble . . . . They're going to cause trouble ... .
I was trying to calm them down. I wanted to find
out what the situation was. And ][ really couldn't
decipher anything about what was going on ... .
At this point . . . I seen two other gentlemen
coming up the hill. [Note: These new arrivals were
subsequently identified; they were Maloney's con-
struction superintendent Grobarek and Vice Presi-
dent Daggett.] So, as they came up they introduced
1379
theirselves. By this time there was a couple of other
business agents that came up and we were standing
there. I introduced myself. The other trades intro-
duced theirselves. And we started talking . .. .
[One] of them said, "Boy, it looks like we have a
mess there ." [Note: Williams concurred ; some gen-
eral discussion ensued .] And then we was able to
start talking and finding out what's going on . .. .
I was addressing both [Grobarek and Daggett],
asking them when the tapers were going to be paid
. .. . One of them said they'd been paid already-
that "We paid our money already." I says, "To
whom?" and they said, "To Roger Hunt." [Interpo-
lations supplied to promote clarity.]
Business Representative Williams had thereupon ques-
tioned Grobarek and Daggett sharply-so his testimony
shows-with regard to Hunt's identity. However, while
a witness herein, Williams conceded that-before this
November 22 confrontation-he had, despite his jobsite
profession of ignorance, previously heard Hunt's name;
he declared that he really "wanted to know" precisely
how Complainant and Hunt were connected. Maloney's
spokesman thereupon had designated Hunt their firm's
subcontractor.
Confronted with this information, Respondent Union's
business representative-so his testimony shows-had de-
clared that, so far as he was concerned, the McKellar
project "tapers" were Maloney workers, who had not
been paid. Complainant's construction superintendent
had then asked what could be done to get "them" back
to work; Williams, so his testimony shows, had replied:
I said, at this point, I says, "Pay the men. They told
me this morning about they're not going back to
work." And I says, "Now that I'm out here and
they haven't been paid they're not going back to
work until they are paid."
Subsequently, while their discussion continued, Williams
reminded Maloney's management representatives, inter
alia, that their joint agreement commitments compassed a
provision (art. 19, sec. 3-B) which specified that contrac-
tually covered workers-when not paid in timely fash-
ion, or when paid with nonnegotiable checks-were
privileged to refrain from work until properly compen-
sated.
Maloney's management team, confronted with repeat-
ed demands for prompt payment-presented by various
craft workers, personally, as well as their several busi-
ness representatives-declared, initially, that they would
first require "facts and figures" from which they could
determine the scope of Hunt's default; then, Vice Presi-
dent Daggett and Grobarek declared Complainant could
determine what might be done.
Considered in totality, the testimonial record further
warrants determinations -within my view-that Vice
President Daggett told Respondent Union's business rep-
resentative, inter alia , that Complainant had previously
given its subcontractor, Hunt, a Thursday, November 18,
progress payment, which should have been sufficient to
cover his payroll obligations. Williams, however, re-
1380 DECISIONS OF NATIONAL LABOR RELAT IONS BOARD
plied-presumably because of information which a
McKellar spokesman had previously provided-that he
considered Maloney, nevertheless, the contractor of
record, responsible for any wage payments missed. While
a witness, Williams was questioned, specifically with re-
spect to whether he had notified Daggett and Grobarek,
further, that none of the craftsmen concerned would
resume work, save when both their defaulted "wages
and fringe benefits" were made good. Respondent
Union's business representative-who had testified, ini-
tially , that Maloney's management team was requested,
merely, to provide delinquent "wage" payments-finally
conceded that Daggett and Grobarek had, indeed, been
told "his" drywall finishers would not resume work until
both their wages and delinquent fringe benefit contribu-
tions had been paid. (When questioned by the General
Counsel's representative and Complainant's counsel, Wil-
liams conceded, first, that-within a signed, prehearing
statement-he had previously reported a November 22
demand for both "wage and fringe benefit" payments.
When queried further, he conceded he could "possibly"
have told Daggett and Grobarek-consistently with his
signed statement-that until their defaulted wages and
fringe benefits were paid the project's drywall finishers
would not resume work. Later, while a witness, he de-
clared he had "no doubt" that Malony's management
representatives had, indeed, been so advised; further, he
"believed" he had said that both delinquent wages and
fringes would have to be paid, or he would not permit
"anyone" to work. When questioned by Respondent
Union's counsel, Williams recalled finally that he "did"
tell Complainant's representatives-sometime on Novem-
ber 22-that "if the wages and the fringe benefits were
paid immediately" work on McKellar's project would be
resumed.)
While a witness, Business Representative Williams
conceded further that-sometime during these November
22 discussions-he "could very well have" mentioned
that Hunt had never become a joint agreement signatory;
he contended, nevertheless, that Respondent Union had
never learned, specifically, before Hunt's wage payment
default, that fringe benefit contributions for the drywall
finishers on McKellar's project had never been made.
With matters in this posture , Complainant's vice presi-
dent, I find; proceeded to raise a collateral question:
During the calendar week which preceded the Novem-
ber 22 confrontation with which we are presently con-
cerned, Hunt's sole "spray-force" gun, required to spray
certain materials on project acoustical ceilings, had-so
the record shows-broken down. Consequential con-
struction delays, presumptively chargeable to Hunt's fail-
ure of performance with respect to acoustical ceiling
spray work, had caused the general contractor concern.
McKellar's project superintendent, William Miller, had-
during some tripartite discussions which involved both
Hunt and Maloney's construction superintendent-de-
manded, insistently, that "someone" should be found
who could provide required spray services. Maloney's
construction superintendent had reported Miller's insist-
ence to Daggett, Complainant's vice president. Some-
never definitively designated for the present record-had
thereupon procured a spray gunner's services; this spray
material "shooter" specially retained had worked both
on Thursday and Friday, previously. On Monday morn-
ing, November 22, he had reported for further work.
(Vice President Daggett claimed, while a witness, that
Pee Efhn, the spray gunner, was' project "subcontrac-
tor" throughout this period, though he had not been re-
tained as Maloney's subcontractor. For present purposes,
however, Eflin's precise relationship with McKellar, Ma-
loney, and Hunt, at material times, requires no determi-
nation, within my view.)
Maloney's vice president thereupon queried Williams,
with respect to whether Eflin could continue his spray
gun work, which McKellar's project superintendent had
previously, specifically, requested. Following a discus-
sion-during which Daggett recapitulated the situation-
Williams asked whether the spray gun work would be
performed by "people" whom Respondent Union repre-
sented. Daggett replied that he did not "think" so. The
business representative then disclaimed any purpose to
tell Maloney's vice president what to do. And Daggett,
so his testimony shows, construed Williams' disclaimer as
tacit consent. Eflin presumably continued work. (Eventu-
ally, the spray gunner-so Daggett recalled-communi-
cated with Complainant, directly, regarding his compen-
sation. However, the general contractor-so Maloney's
vice president testified-finally paid him.)
Williams' final question, with respect to whether
Eflin's services fell within Respondent Union's trade or
contract jurisdiction, was never settled. In this connec-
tion, certain joint agreement provisions-specifically, I
find, article 2, sections 3 and 5 therein-could, conceiv-
ably, have been considered relevant. They were not,
however, mentioned.
The record, herein, reflects testimonial references to
further conferences between Maloney's management
spokesmen, Business Representative Williams, and sever-
al other union representatives. Throughout these confer-
ences, however, the parties maintained their respective
positions. (Presumably, various designated spokesmen for
Hunt's craft workers were-together with Respondent
Union's business representative-demanding wage pay-
ments calculated to remedy that subcontractor's payroll
defaults. However, with respect to whether these craft
worker representatives were--like Williams herein-de-
manding further payments calculated to remedy fringe
benefit contribution defaults, the testimonial record pro-
vides no clue.)
Complainant's vice president, I find, reiterated prior
statements that-since Hunt had previously been given a
progress payment which should have covered the sub-
contractor's defaulted payroll-his firm had no funds
available, from which the latter's past-due wage payment
obligations could be satisfied. Daggett reported, there-
fore, that-before Maloney could pay any project work-
ers-the firm would have to get back on the job and
finish some work; he declared that when Complainant
firm, thereafter, received McKellar's progress payments
wage payment defaults would be remedied. However,
spondent Union's business representative, inter alia, re-
iterated prior declarations that "his" men would not
PAINTERS ORANGE BELT DISTRICT COUNCIL 48 (MALONEY SPECIALTIES) 1381
resume work until their payroll and fringe benefit de-
mands had been satisfied.
Subsequently, between Monday, November 22 and
Friday, November 26, Daggett and Grobarek managed
to determine what Maloney's commitment to complete
the drywall work on McKellar's project would require.
Further, so Daggett testified, they "lined up" two sub-
contractors whose services would be "immediately"
needed. On November 26 their "facts and figures" were
reported to McKellar's vice president; Miller was re-
quested to let them know whether Complainant could
continue Hunt's work. In that connection, Maloney's
representatives declared further that they were prepared
to hire Hunt's craft workers, putting them on Complain-
ant's direct payroll, should McKellar's response be af-
firmative.
b. The resumption of work
On Monday, November 29, McKellar's spokesman re-
ported that Complainant would be forthwith "removed"
from his firm's La Jolla Village Tennis Club project; the
general contractor's superintendent declared that his firm
would, itself, complete Maloney's previously designated
work.
On Wednesday, December 1, various McKellar repre-
sentatives met-within their firm's project headquar-
ters-with Respondent Union's business representatives
Gordon Williams and Dale Palm; Field Representative
Mayfield from the San Diego branch of their joint agree-
ment's administrative office was, likewise, present James
McKellar, functioning as his firm's designated representa-
tive, signed a joint agreement counterpart; McKellar &
Associates, Inc. was designated a "Non Member" signa-
tory therein. The counterpart form, however, contained
a supplementary handwritten provision; the commitments
reflected therein were declared effective for the signato-
ry contractor's La Jolla Village Tennis Club project,
merely, through that project's prospective completion
date. (Field Representative Mayfield, so the record
shows, had "initialed" the general contractor's counter-
part contract. He had, likewise, written in the supple-
mentary language, limiting the counterpart contracts
term-which Respondent Union Business Representative
Dale Palm had previously approved.)
Business Representative Williams was concurrently
given checks, which McKellar had drawn, calculated to
cover past-due compensation for eight drywall finishers,
consequent to Hunt's November 19 payroll default.
McKellar's designated representative further signed a
letter-which Business Representative Palm had helped
draft-directed to George W. Hartman, Respondent
Union's executive secretary. The letter declared, in rele-
vant part, that:
McKellar & Associates hereby agrees to pay all
Fringe Contributions due and owing to Orange Belt
District Council of Painters and Allied Trades,
known or unknown, for any or all work previously
performed on the project known as La Jolla Village
Tennis Club . . . within thirty (30) days of Decem-
ber 1, 1976.
Respondent Union's business representatives, however,
proffered verbal assurances that McKellar would be re-
quested to provide fringe benefit contributions "due and
owning" for La Jolla Village Tennis Club's drywall fin-
ishers, only if such fringe benefit contributions could not
be collected from Complainant herein.
Within a few days, thereafter, Business Representative
Williams notified Hunt's former "tapers" that McKellar's
checks, for their back wages, could be picked up; when
they reported to collect their pay, Williams advised them
to communicate with McKellar's representative should
they wish rehire. Subsequently, some "5 or 6" drywall
finishers resumed work on McKellar's project, which-
without further incidents material herein-proceeded to
completion.
c. Respondent Union's grievance proceeding
On December 6, Business Representative Williams
charged Complainant formally, with several joint agree-
ment violations.
Specifically Respondent Union's business representa-
tive charged that Maloney had violated article 4, section
9, paragraph b (the joint agreement's subcontractor
"guarantee" provision), article 19, paragraph 1-A (time
records required), paragraph 1-G (waiting time compen-
sable in cases of wage payment default), paragraph 1-H
(presumption of willfulness permitted in cases of default
defined), together with articles 21, 22, 23, and 24, which
define a signatory contractor's fringe benefit contribution
commitments.
Formal hearings on Respondent Union's grievance
were conducted on February 2 and April 6, 1977, before
a properly constituted joint judicial committee, sitting in
conformity with relevant joint agreement provisions.
Certain statements which participants made while these
hearings were being conducted-within my view-merit
review, herein.
Construction Superintendent Grobarek, Complainant's
principal spokesman, pleaded "not guilty" first. with re-
spect to Respondent Union's charges. He conceded that
Maloney had subcontracted "drywall in its entirety" on
McKellar's project, though cognizant that Hunt had not
"signed" collective-bargaining contracts which would
cover his project drywall hangers or tapers. Grobarek
contended, nevertheless, that Field Representative May-
field had been notified with regard to Hunt's situation;
that the field representative of the joint agreement's ad-
ministrative office had been requested to get Hunt
signed; that, subsequently, Mayfield had reassured him
the matter would be handled, but that, nevertheless,
Hunt had never had became contractually bound. Malon-
ey's construction superintendent suggested, substantially,
that he had-justifiably-presumed Hunt's signatory
status, since Mayfield had never reported a problem with
respect to Hunt's contractual commitments. Confronted
with these declarations, Respondent Union's executive
secretary raised a question during the joint judicial com-
mittee session:
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
You are aware of the fact that the agreement says
you do not subcontract to an employer not signed
to the agreement?
Maloney's spokesman, replying, conceded knowledge
with regard to this contractual requirement . Grobarek
declared , however, that he "felt" he had , nevertheless,
discharged his firm 's obligation-despite Hunt 's failure to
produce proof, thereafter, that he had become a contract
signatory-since he believed that Mayfield had "han-
dled" their situation. The committee record , with matters
in this posture, reflects a discussion , relevant herein:
MR. HARTMAN : Mr. Chairman , I direct your at-
tention to page 7 of the agreement under subletting
work, page 7 under 9-B: "The employer agrees that
in the event he subcontracts any work covered by
this agreement , the subcontract shall be in writing
and a copy submitted to District Council of Painters
and Allied Trades in whose jurisdiction the work
will be performed . A copy must be submitted to the
administrative office prior to commencement of the
job by the subcontractor . The subcontracting agree-
ment shall contain a provision that the subcontrac-
tor shall be responsible for the payment of all the
wages and fringe benefits provided under this agree-
ment." Now, was that done?
MR. GROBAREK : No, may I ask a question: is
anyone else at this table aware of that other than-I
certainly wasn't.
MR. JENSEN [Committee Member] : It is a very
fair question and I think we are aware of it, because
we have been up on the same charges you have
. .. . The paragraph indicates that if you are going
to be subletting, you must let these people know
about the subletting prior to the job and if you
knew you were going to be subletting the job and
you didn 't fulfull that end of it, then there is a prob-
lem... .
Then, with Respondent Union's grievances not yet re-
solved, those present reached a consensus that the com-
mittee's hearing should be recessed. When it reconvened
2 months later, on April 6 , Business Representative Wil-
liams reported that:
It was my information that they had, Maloney Spe-
cialties had the contract on this job and they sublet-
ted out to another outfit, this MG plaster and
Drywall. A man named Roger Hunt was in charge
and subsequently the job got in trouble. The men
didn't get paid on the job and I went out there and
withdrew the manpower from the job. It took a few
days to collect the money and finally McKellar
came up with the wages that were owed for that
prior week, two prior weeks . . . . The reason I am
here is to collect the fringes owed for the hours
worked on this particular job . . . . We had eight
men, tapers working on that job and I feel that Ma-
loney Specialties is responsible for those fringes.
Confronted with Williams' statement, Maloney's con-
struction superintendent substantially reiterated his firm's
defense, previously noted. Respondent Union Executive
Secretary George Hartman , however, proffered a rejoin-
der which , in relevant part , read as follows:
Let's say for instance , that Roger Hunt had in fact
signed the agreement . . . and then defaulted. Our
position . . . [is] that they, in this instance , the con-
tractor with original contract , in subcontracting
under the terms of the agreement , would be respon-
sible for his debts . . . at this point.
The area of responsibility, as I pointed out before, is
with Maloney Specialties who are, incidentally, still
in business . . . I think the first instance , the respon-
sibility lies with Maloney Specialties . If, in fact, it
can't be resolved , we will have to go with the
builder . They [Maloney Specialties ] have the pri-
mary responsibility here , at this point , because they
are the ones that subcontracted the work to the un-
signed employer . [Note : Interpolation herein sup-
plied to promote clarity.]
The guts of the issue are simply this: . . . our posi-
tion is that the contract was violated by Maloney
Specialties, in this respect : that the subcontractor
was not signatory to the agreement and even if he
had been , if he skipped , if he left, whatever he did,
Maloney Specialties , in the first instance , is respon-
sible for those fringe benefits.
With matters in this posture , Complainant 's spokesmen
proceeded to raise questions with regard to McKellar's
previously signed "letter of intent" wherein the general
contractor had become committed to satisfy Respondent
Union's contractually grounded fringe benefit contribu-
tion claims bottomed upon "any and all work previously
performed" on McKellar's La Jolla Village Tennis Club
project . Construction Superintendent Grobarek, inter alia,
protested that-when Hunt's default was discovered-his
firm had never been "given an option" with respect to
continuing work on McKellar's project, should Com-
plainant 's management sign a proffered "letter of intent"
committing themselves to make good , subsequently,
Hunt's failure to provide prior fringe benefit contribu-
tions. Specifically, Maloney 's spokesman declared that:
We were not given the option to sign the letter of
intent. We were asked to give the money, cash
money , before the mean went back on the job, the
wages and fringe benefits.
With respect to Grobarek 's claim , Respondent Union's
business representative proffered no clear-cut denial. Wil-
liams notified the joint judicial committee , merely, that-
on the day (November 22) when he was there (on
McKellar's project), specifically-Maloney's manage-
ment representatives had been told that "if they paid the
fringes" they could resume work.
Shortly thereafter, with matters in this posture, the
joint judicial committee found Complainant herein guilty
as charged . Accordingly, Maloney Specialties, Inc. was
found "indebted" to various Orange Belt District Coun-
cil of Painters Trust Fund for a total of $7447 .02, repre-
senting delinquent fringe benefit contributions, plus
PAINTERS ORANGE BELT DISTRICT COUNCIL 48 (MALONEY SPECIALTIES) 1383
$2865.40 representing "liquidated" or "asserted" dam-
ages ; the committee designated $10,312.42 the total
amount due. On April 19, 1977, Lee Singleton, manager
of the joint agreement's administrative office, formally
notified Maloney's management; within Singleton's letter,
Complainant was, further, notified with regard to its
right to appeal the committee's decision.
Subsequently within a May 3 letter, Singleton remind-
ed Maloney's management that pursuant to specific joint
agreement provisions, certain contractual prerequisites
would have to be satisfied before its appeal could be
considered perfected; Complainant's time limit for filling
a contractually permitted appeal was thereupon extended
for 5 days.
3. Subsequent developments
a. Respondent Union's attempt to enforce the grievance
award
Maloney's management, thereafter, failed to perfect a
contractual appeal. Within a May 16, 1977 letter, there-
fore, Secretary-Treasurer Singleton notified the firm-
consistently with a decisional recommendation which the
joint judicial committee had previously reported-that:
Your working privileges sunder Southern California
Drywall Finishers Joint Agreement 1974-77 have
been suspended as of this date for failure to pay liq-
uidated damages assessed at a hearing of the Joint
Judicial Committee, District Council 48, on April 6,
1977. We are also notifying the bonding company
and will file for the amounts assessed by the Joint
Judicial Committee. Before your working privileges
can be restored, the above must be corrected.
On May 18, various documents-never specified for the
present record-calculated to support a proof of loss
were submitted to Maloney's surety company. Directly
thereafter on May 19, Complainant' s counsel filed both
the unfair labor practice charges, which initiated Board
proceedings herein. Some discussion and correspond-
ence-between Complainant's counsel, this Board's Re-
gional Director for Region 21, Respondent Union's
counsel, and the General Counsel's Office of Appeals-
followed. Consequently the General Counsel's consoli-
dated complaint herein dated October 31, 1977, issued.
b. Respondent Union's Federal district court
proceeding
Meanwhile, however, since Maloney's failure to per-
fect a contractual appeal had presumptively rendered the
joint judicial committee's prior award final, Respondent
Union filed a state court suit calculated to secure judicial
"confirmation" with respect to the committee's decision.
Shortly thereafter, Respondent Union's lawsuit was re-
moved to Federal district court, which-consistently
with Section 301(a) of the Labor Management Relations
Act specifically-possessed subject matter jurisdiction.
Following a January 16, 1978 hearing on Respondent
Union's motion for summary judgment, Federal District
Court Judge,William Gray filed "Amended Findings of
Fact and Conclusions of Law," coupled with a memo-
randum decision which resolved various matters in con-
troversy. (See 98 LRRM 3193, in this connection.)
In relevant part, Judge Gray concluded that the joint
judicial committee's award was "entitled to the same ju-
dicial deference" applicable to all arbitration awards.
Further, he found the committee's award supported by
the joint agreement' s language and purpose, and properly
subject to confirmation. Noting the concurrent jurisdic-
tion of this Board and Federal courts, particularly with
respect to matters susceptible of Section 301(a) disposi-
tion , the judge concluded that the possible commission of
unfair labor practices chargeable to Respondent Union
herein did not "inhibit" the district court from granting
the relief sought. In this connection, Judge Gray de-
clared, further, that:
Even assuming that the NLRB subsequently deter-
mines that the actions of Petitioner Painters Union
were unlawful, such would not effect [sic] the pro-
ceedings presently before this Court. In such event,
the Arbitration Award and confirmation thereof
would have a curative affect, would clearly delin-
eate the issues for subsequent Board determination;
and such could be modified or vacated to the extent
that the Board determines that such Award is in
conflict with applicable law.
The judge noted, however, that-"at this stage"-no
showing had been made that Respondent Union's con-
duct contravened the principles laid down by the U.S.
Supreme Court in Connell Construction Co. v. Plumbers
Local 100, 421 U.S. 616 (1973), since the particular sub-
contracting clauses which the General Counsel proposed
to challenge had been included within a comprehensive,
lawful, collective-bargaining contract.
Judge Gray's "Amended Findings of Fact and Conclu-
sions of Law" and memorandum decision issued June 1,
1978, following the conclusion of the Board's testimonial
hearing before me. Shortly thereafter, however, Re-
spondent Union counsel provided the General's Coun-
sel's representative, Complainant's counsel, and me with
copies. No objections with respect to my present consid-
eration of Respondent Union's submission have been re-
ceived. Within a December 7, 1978 order, therefore,
counsel were notified that the district court's amended
findings of fact, conclusions of law, and memorandum
decision would be officially noticed.
B. Relevant Statutory Provisions
The General Counsel's consolidated complainant,
herein, charges Respondent Union with statutorily pro-
scribed conduct upon two separate and distinct grounds.
First, he charges that Respondent Union "entered into"
contractual arrangements, with Complainant particularly,
which Section 8(a) would proscribe. In relevant part,
that section of the statute provides that:
It shall be an unfair labor practice for any labor or-
ganization and any employer to enter into any con-
tract or agreement, express or implied, whereby
such employer ceases . . . or agrees to cease . . .
doing business with any other person, and any con-
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tract or agreement entered into heretofore or here-
after containing such an agreement shall be to such
extent unenforceable and void: Provided, That noth-
ing in this subsection (e) shall apply to an agree-
ment between a labor organization and an employer
in the construction industry relating to the contract-
ing or subcontracting of work to be done at the site
of the construction, alteration , painting , or repair of
a building , structure , or other work ... Provided
Further, That nothing in this Act shall prohibit the
enforcement of any agreement which is within the
foregoing exception.
Concurrently, the General Counsel charges Respondent
Union, further, with 8(b)(4)(ii)(A) violations, contending
that Respondent Union' s course of conduct, both on No-
vember 22, 1976, and thereafter, compassed threats, coer-
cion, or restraint directed against Maloney 's management
for the purpose of forcing or requiring Complainant to
"enter into" contractual arrangements which Section 8(e)
would prohibit.
C. Discussion and Conclusions
1. Issues
With matters in their present posture , this case raises
some rather subtle factual and legal questions. Those
questions , for present purposes , merit summary restate-
ment:
1. Whether Respondent Union 's business representa-
tive-concurrently with, and subsequent to, the Novem-
ber 22, 1976 work stoppage oil McKellar 's La Jolla Vil-
lage Tennis Club project-threatened Complainant with
a refusal to furnish or refer drywall finishers from its
hiring hall, unless that designated firm complied with the
provisions of article 4, paragraphs 9(B) and (C) within
the joint agreement previously noted, and whether Re-
spondent Union's representative commenced grievance
proceedings calculated to compel Complainant's compli-
ance with the joint agreement provisions cited.
2. Whether Respondent Union 's representatives-while
subsequently prosecuting their grievance-notified Ma-
loney's management spokesmen, specifically , that Re-
spondent Union considered their firm responsible for a
failure by their subcontractor , on McKellar 's construc-
tion project , to become a joint agreement signatory and,
consequently , considered Complainant contractually
bound to make good certain defaults chargeable to their
subcontractor, with respect to both wage payments and
fringe benefit contributions , consistently with the joint
agreement provisions previously noted.
3. Whether Respondent Union's business representa-
tives-through their course of conduct noted-reaf-
firmed, involved , sought to compel compliance with, and
thereby "re-entered into" those joint agreement provi-
sions, previously mentioned , with which we are herein
concerned.
4. Whether Respondent Union herein-when that or-
ganization , through conduct chargeable to its business
representatives , reentered into and sought to compel
Complainant 's compliance with their joint agreement's
article 4, paragraphs 9(B) and (C) particularly-really en-
tered into contractual commitments , express or implied,
which Section 8(e) would , on its face , render unenforce-
able and void.
5. If so, whether those contractual commitments
should-nevertheless-be considered valid and enforcea-
ble, because of Section 8(e)'s first proviso.
Whether Respondent Union herein-when Business
Representative Williams, specifically , threatened Malon-
ey's management spokesmen with a refusal to furnish or
refer workmen from its hiring hall unless their company
complied with article 4, paragraphs 9(B) and (C)'s provi-
sions-did threaten , coerce, and restrain Complainant for
the purpose of forcing or requiring that firm to reenter
into contractual commitments which Section 8(e) would
prohibit.
With respect to these several matters, save for the fifth
question noted , the General Counsel's representative,
herein , seeks affirmative determination. However, Re-
spondent Union contends-contrariwise-that, with due
regard for Section 8(e)'s first proviso, the joint agree-
ment provisions which the General Counsel challenges
should be considered privileged. Within his brief, Re-
spondent Union 's counsel contends-further-that, since
his client 's demand for Complainant 's compliance with
article 4, paragraph 9(B)'s substantive "make whole"
provision , finally, generated a favorable joint judicial
committee decision , subsequently judicially confirmed,
no determination that Respondent Union's course of con-
duct, considered in totality , flouted some statutory man-
date should-now-be considered warranted.
2. Discussion
a. Respondent Union's course of conduct
Herein , determinations seem clearly justified that Re-
spondent Union's business representative neither called
upon , induced, nor encouraged McKellar project con-
struction craftsmen in Hunt's hire to cease work on No-
vember 22 following that subcontractor 's failure to meet
his Friday , November 19, payroll. (Presumably, when
Hunt's workers-initially-refused to begin work, their
"job action" reflected a protest directed against the sub-
contractor 's default.)
The record, nevertheless , reveals-clearly-that, when
Business Representative Williams finally reached the
project, he ratified, endorsed , and tacitly sponsored a
continuation of the work stoppage then in progress, so
far as Hunt's drywall finishers were concerned. Further,
he clearly transformed their "self-help" refusal to work
into job action directed against Complainant herein. He
did so, I find , when he pressed Respondent Union's de-
mands proffered on their behalf, during several succes-
sive confrontations with Maloney 's management spokes-
men.
Initially, Williams merely demanded-so his testimony,
which I credit in this connection , shows-that La Jolla
Village Tennis Club project drywall finishers should be
paid . Since Hunt , d/b/a M . G. Drywall had-clearly-
decamped , Respondent Union's business representative
presented his demand to Maloney's management team; he
considered Complainant responsible, so his testimony
PAINTERS ORANGE BELT DISTRICT COUNCIL 48 (MALONEY SPECIALTIES)
shows, having previously been "told" that Complainant
was considered the project's "contractor of record" with
respect to drywall finishers" work. Williams soon
learned, however, that the drywall finishers on McKel-
lar's project had really been working for Hunt, function-
ing as Maloney's subcontractor. Nevertheless, Respond-
ent Union's business representative-despite his knowl-
edge-concededly reiterated his prior demand that Com-
plainant should make good Hunt's defaulted payroll obli-
gations, forthwith. (With matters in this posture, no de-
terminations need be made, within my view, with respect
to whether Construction Superintendent Grobarek had
previously provided Williams with some constructive June
1976 notice-through several communications with Ad-
ministrative Office Field Representative Mayfield specifi-
cally-that Hunt, not yet a joint agreement signatory,
would be Maloney's subcontractor, committed to dis-
charge the latter firm's contract responsibilities on
McKellar's project; or with respect to whether Keese
Kennedy's subsequent August 1976 contacts with Wil-
liams, while he was purportedly seeking a work referral,
had generated some mistaken "belief' on the business
representative's part that Complainant should properly
be considered the contractor performing "drywall" work
on McKellar's project; or with respect to whether cer-
tain October 1976 communications between Williams and
Field Representative Mayfield had, finally, provided Re-
spondent Union's business representative with definitive
"notice" that Hunt, though not yet a joint agreement sig-
natory, was functioning as Maloney's La Jolla Village
Tennis Club subcontractor. Williams' proclaimed lack of
personal knowledge or reasonable grounds for belief-
before November 22 specifically-with regard to Hunt's
contractually defined relationship with Complainant
herein, or with regard to the full scope of Hunt's particu-
lar jobsite responsibilities, carries no significance. Re-
spondent Union's business representative did, conceded-
ly, learn-very shortly after his November 22 La Jolla Vil-
lage Tennis Club jobsite visit commenced-that Hunt, pur-
suant to Maloney's May 1976 subcontract, had, indeed,
been working on McKellar's project, with drywall finish-
ers and various craft workers directly hired. Neverthe-
less, despite his November 22 knowledge that Complain-
ant had never, directly, hired any drywall finishers for
La Jolla Village Tennis Club work, Business Representa-
tive Williams contended, then and thereafter, that Malon-
ey's management should promptly remedy Hunt's de-
fault.)
Further-despite his presumptive knowledge that
Complainant's subcontractor, who had never signed a
joint agreement counterpart contract, could not be con-
sidered contractually bound to remit whatever fringe ben-
efit contributions such a commitment might have re-
quired-the business representative, finally, demanded
Maloney's declaration of readiness to remedy Hunt's
wage payment delinquency and concurrently to provide
fringe benefit contributions, with respect to drywall fin-
ishers with Respondent Union's trade jurisdiction, specif-
ically.
1385
b. Respondent Union's contract reaffirmation
Clearly, when Business Representative Williams pro-
claimed Respondent Union's determination that Com-
plainant should make good Hunt's wage payment default
and provide fringe benefit contributions, no contention
could, reasonably, have been proffered that Hunt's
drywall finishers had-really-been Maloney's employ-
ees. Respondent's business representative, I find, well
knew-despite his testimonial claim that some McKellar
representative had, previously, designated Complainant
as one of his firm's contractors of record-that Malon-
ey's putative liability would have to be derived, solely,
from its joint agreement article 4, paragraphs 9(B) and
(C) commitments, defining that firm's status as Hunt's
guarantor.
Those contractual commitments had, concededly, been
generated when Complainant's management representa-
tive first signed a joint agreement counterpart contract
form on May 6, 1975; they had been reaffirmed when
William A. Maloney signed a similar counterpart docu-
ment, some 7 months later.
Both counterpart documents, however, had been
signed more than 6 months before Maloney's May 19,
1977 charges, herein, were filed. Any conclusion, with
respect to violations of law, therefore, bottomed specifi-
cally upon Complainant's May 6, 1975 execution and De-
cember 18, 1975 renewal of joint agreement counterparts,
would be time-barred, herein. See Section 10(b) in this
connection.
The General Counsel's consolidated complaint, how-
ever, stands predicated on Respondent Union's course of
conduct within the 6-month period which directly pre-
ceded the filing of Complainant's charge. More particu-
larly, the General Counsel contends that: (1) Respondent
Union's threats, conveyed "on or after" November 22,
1976, regarding a refusal to furnish or refer workmen to
Maloney; (2) Respondent Union's December 6, 1976 de-
termination to prosecute a grievance against Complain-
ant, bottomed upon various joint agreement provisions;
and (3) several February and April 1977 statements by
Respondent Union's representatives, during a consequent
joint judicial committee proceeding, constituted a reaffir-
mation of various contractual commitments relevant
herein.
This Board has consistently held that the words "enter
into" within Section 8(e) of the statute should not be
construed, narrowly, to cover "the initial execution of a
proscribed agreement" merely. Dan McKinney Co., 137
NLRB 649, 653 (1962). Rather, this language should be
construed broadly; the words in question have been held
to compass the concepts of "maintenance, enforcement
and reaffirmation" likewise. Masters, Mates & Pilots (Cove
Tankers Corp., 224 NLRB 1626 (1976); Dan McKinney
Co., supra at 654; Los Angeles Mailers Union 9 (Hilibro
Newspaper Printing Co.), 135 NLRB 1132-37 (1962). The
statute, moreover, lays down no requirement that a reaf-
firmation of contractual commitments, challenged as vio-
lative of Section 8(e)'s proscription, must be bilateral or
mutual. Consequently, whenever a contracting party-
unilaterally-seeks enforcement with respect to such
contractual provisions, requests another party's compli-
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ance with their terms, or pursues grievance /arbitration
procedures calculated to resolve disputes regarding the
construction to be given contractual provisions which
might contravene Section 8 (e)'s mandate , such conduct
constitutes a reaffirmation of contractual commitments,
sufficient to satisfy the generalized "enter into" language
which Section 8(e) contains . See Bricklayers Local 2
(AGC of Minnesota), 224 NLRB 1021, 1024-1025 (1976),
enfd. 562 F.2d 775 (D.C. Cir. 1977); Carpenters Local
1149 (American President Lines), 221 NLRB 456 fn. 2
(1975); Teamsters Local 890 (San Joaquin Valley Shipper's
Labor Committee), 137 NLRB 641, 644 ( 1962), in this
connection.
The record, herein, clearly warrants determinations,
which I make , that Respondent Union's business repre-
sentative ratified and supported the spontaneous Novem-
ber 22 work stoppage on McKellar's project , with re-
spect to which various ' drywall finishers-together with
many craft workers whom other labor organizations rep-
resented-were participants . Further, Business Repre-
sentative Williams declared the work stoppage would
continue , so far as Hunt's drywall finishers were con-
cerned, until Maloney 's management remedied that sub-
contractor 's payroll default and provided fringe benefit
contributions. (When he defined Respondent Union's po-
sition , Williams clearly knew: First, that drywall finishers
on McKellar 's project had been paid by Hunt, directly,
rather than by Complainant herein; second, that Hunt
had, throughout , been Maloney's subcontractor ; third,
that Hunt, despite his "reported or presumed " collective-
bargaining relationships with several other labor organi-
zations, had never become a joint agreement signatory.
With matters in this posture, Respondent Union's busi-
ness representative could reasonably have concluded,
further, that Complainant 's subcontractor had never re-
ported or paid Orange Belt District Council Trust Fund
contributions , covering his McKellar project drywall fin-
ishers. Necessarily , therefore , Business Representative
Williams ' demand that Maloney make good Hunt's com-
plete "wage and fringe benefit" defaults reflected Re-
spondent Union's determination to hold Complainant re-
sponsible consistently with their joint agreement's sub-
contractor clauses, art. 4, pars. 9 (B) and (C), specifical-
ly.)
Within its context, the business representative 's decla-
ration clearly constituted a reaffirmation of both subcon-
tractor clauses which the General Counsel challenges
herein. I so find.
Again, Respondent Union reaffirmed these contractual
provisions , I find , when Business Representative Wil-
liams filed his December 6, 1976 charges with respect to
Maloney's claimed joint agreement violations. The viola-
tions charged-with respect to articles 19 , 21, 22, 23, and
24, specifically-cover a signatory contractor's failures of
performance , with respect to both wage payment and
fringe benefit contribution commitments . Those failures
of performance , however, had- in the first instance-
been Hunt 's failures . Complainant 's subcontractor had
never become a joint agreement signatory ; necessarily,
therefore, Respondent Union 's contention that Maloney
should be considered responsible to remedy its subcon-
tractor 's delinquencies constituted a reaffirmation and
demand for Maloney's compliance with article 4, para-
graphs 9(B) and (C)'s provisions . (Respondent Union's
grievance , of course , contained no charge, specifically,
that Complainant had flouted par. 9(C)'s mandate. Nev-
ertheless, since Maloney 's subcontractor had never-him-
self-become a joint agreement signatory , Respondent
Unions claim that Complainant should be considered
"liable" for the fringe benefit contribution payments
which Hunt had never been committed to make neces-
sarily subsumed a contention that Maloney had subcon-
tracted with a nonsignatory firm, contrary to par. 9(C)'s
prohibition.)
Further, when Respondent Union constructively
caused Secretary -Treasurer Singleton, of their joint
agreement ' s administrative office, to notify Complain-
ant's management that their firm 's contractually defined
"working privileges" would be suspended , because of
their failure to comply with or settle a joint judicial com-
mittee award , premised upon contract violations
charged, the specific joint agreement provisions which
the General Counsel currently challenges were , again,
reaffirmed.
These successive reaffirmations, consistently with well-
settled decisional doctrine , sufficed to confirm Respond-
ent Union 's renewed "entry into" contractual commit-
ments, putatively subject to Section 8(e)'s proscription,
within the 6-month period directly preceding Complain-
ant's charges ; this consolidated proceeding , therefore,
cannot-now-be considered time-barred.
C. The Nature of Complainant 's Subcontracting and
Liability Commitments
At this point, then, some determination must be made
with respect to whether the joint agreement's coordinat-
ed subcontracting provisions carry a primary or second-
ary thrust. Should they be found primary, Section 8(e)
would have no application whatsoever ; Respondent
Union could follow whatever course, otherwise lawful, it
might choose, without regard for Section 8(e)'s particu-
lar restraints . Contrariwise, however , should the provi-
sions challenged herein be found properly subject to
characterization as secondary , Section 8(e), together with
its relevant proviso, would come into play; the proce-
dures which Respondent Union might utilize to compel
compliance with contractual mandates would , necessari-
ly, be limited. (Consistently with well-settled decisional
doctrine, contract provisions confined to primary objec-
tives-specifically, the preservation or protection of
some concerned labor organization 's "legitimate interest
in preventing the undermining of work opportunities and
employee standards" within a contractual bargaining
unit-have not been found within Sec. (e)'s proscriptive
reach. National Woodwork Mfg. Assn. v. NLRB., 386 U.S.
612, 640, 644-645 (1967). More particularly, so-called
union standards clauses-which permit subcontracts,
when they are limited to business enterprises which com-
pensate their workers consistently with economic terms
equivalent to those negotiated within the concerned
labor organization 's contract-will be considered pri-
mary clauses which do not contravene Sec. 8 (e)'s prohi-
PAINTERS ORANGE BELT DISTRICT COUNCIL 48 (MALONEY SPECIALTIES)
bition. See Teamsters Local 386 (Construction Materials
Trucking), 198 NLRB 1038 (1972), in this connection.)
In short, contract clauses which, purportedly, would
limit subcontracting to employers who are, themselves,
signatories to union contracts, so-called union signatory
clauses, have been held statutorily proscribed. See Team-
sters (California Dump Truck Owners Assn.), 227 NLRB
269, 272 (1976). Such contract provisions, specifically or
by necessary implication, reflect a concerned signatory
employer's commitment not to do business with "other"
business enterprises which do not qualify.
The second contractual provision which the General
Counsel challenges herein (art. 4, par. 9(C)) memorializes
a contractual commitment by joint agreement signatories
that they "will not subcontract any work covered by this
Agreement unless the subcontractor is properly licensed
and signatory" likewise. This clause, clearly, does more
than protect or preserve traditional bargaining unit work
for bargaining unit workers. (It does not prohibit signato-
ry employers from subcontracting work which their em-
ployees perform, or could perform; rather, it specifically
permits such subcontracting, which it would limit, how-
ever, solely to business enterprises which are, likewise,
joint agreement signatories:
Similarly, the paragraph segment in question does not
limit subcontracting broadly to firms 'which-regardless
of contractual commitments-pay their employees wages
and fringe benefits which equal those defined within the
economic provisions of Respondent Union's contract;
rather the provision would confine subcontracting, more
narrowly, to contract signatory firms., The contract lan-
guage, therefore, constitutes neither a valid work-preser-
vation clause, nor a valid union-standards requirement.
Rather, it must be considered a classic union signatory
clause, fully comparable with those which this Board has
consistently found secondary in nature; it reflects no pri-
mary concern with a joint agreement signatory's labor
relations-specifically, those maintained by Maloney
herein-with drywall finishers whom that firm might
hire, but rather with the labor relations of some nonrelat-
ed business enterprises, with which Maloney might
choose to do business. See Carpenters Local 944 (Woelke
& Romero Framing), 239 NLRB 241 (1978); Operating
Engineers Local 701 (Associated Builders), '239 NLRB 274
(1978). Consistent with the General Counsel's contention,
I find, therefore that article 4, paragraph 9(C) constitutes
a union signatory clause, which Section 8(e) proscribes.
Within this Board's recent Operating Engineers Local
701 decision, last cited, the significance of certain further
contract language-which, taken at face value, would
have declared signatory business firms "responsible and
liable" for payment commitments, concerned with "all
sums of money" required by their contract's terms,
which any subcontractor might incur-received no con-
sideration, specifically. Herein, however, certain contract
language substantially comparable-specifically, certain
portions of article 4, paragraph 9(B), within the joint
agreement with which we are presently concerned-has
been formally challenged.
More particularly, 'the General Counsel contends that
paragraph 9(B), which his representative designates a
guarantee clause, should likewise be considered second-
1387
ary, on its face, since it would penalize joint agreement
signatories for doing business with nonsignatory subcon-
tractors, and purports to regulate the compensation prac-
tices of business enterprises other than contract signato-
ries.
Consistent with paragraph 9(B)'s third sentence, joint
agreement signatory contractors-like Maloney herein-
must be considered committed to subcontract with busi-
ness enterprises which are willing and able to pay, spe-
cifically, those wages and fringe benefit contributions
which the joint agreement requires, rather than merely
"equivalent" wages and fringe benefit contributions. In
practical terms, this provision limits the business enter-
prises to which Complainant may grant subcontracts,
confining them, pari passu to joint agreement signatories;
the contractual language thus constitutes a union signato-
ry clause in disguise.
The record, herein, clearly warrants determinations
that fringe benefit contributions to various Orange Belt
Painters trust funds can be made, solely, by signatory
contractors. (See art. I, secs. 1.1 and 1.3, plus art. IV,
sec. 4.1 within Respondent Union's several "Restated
Agreements and Declarations of Trust," specifically.)
While a witness, Peter Richards, manager of the desig-
nated trust funds, did testify that-had "anyone" paid the
sums "owed" those funds for Hunt's employees-such
remittances would have been deposited within the gener-
al funds of the several trusts, while appropriate "credits"
could have been recorded for the particular workmen on
whose behalf such sums were said. However, no clarifi-
cations, with respect to Richards' generalized, casual tes-
timonial comment, were solicited; considered in context,
the fund manager's statement was-within my view-re-
sponsive to particularized questions concerning the
rather "special" situation revealed by the record herein.
That special situation will be discussed, further, within
this decision. In short, paragraph 9(B)'s third sentence re-
flects concern with the labor and compensation policies
of firms other than the signatory contractor specifically
bound thereby.
With regard to paragraph 9(B)'s final sentence, then,
further commentary seems warranted. Contractual provi-
sions which, considered on their face, require signatory
employers to provide contractually specified wage pay-
ments or fringe benefit contributions which their subcon-
tractors have failed to provide have heretofore been des-
ignated "penalty" provisions, particularly in situations
wherein they charge contract signatories with liabilities
bottomed upon their prior failure to negotiate subcon-
tracts with "union" contractors. Painters Orange Belt Dis-
trict Council 48 (Calhoun Drywall Co.), 153 NLRB 1196,
1200-01 (1965), enfd. 365 F.2d 540 (D.C. Cir. 1966).
And, since paragraph 9(B)'s final sentence, considered on
its face, would, have-directly-required Maloney to
make good Hunt's failure to pay contractually specified
wages, and to provide fringe benefit contributions, de-
spite the designated subcontractor's failure to become a
joint agreement signatory, the provision in question
clearly carries a secondary thrust. (Conceivably, Business
Representative Williams' initial November 22 demand
that, because of his art. 4, par. 9(B) commitments, Ma-
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
loney should , forthwith, remedy Hunt's wage payment
delinquency with respect to McKellar project drywall
finishers-may not, really, have been calculated to penal-
ize Complainant firm. The record , herein , suggests that-
before Hunt's default-his McKellar project drywall
"tapers" may have been receiving piecework compensa-
tion, determined without any regard for possibly relevant
joint agreement wage standards . If, therefore , Respond-
ent Union 's business representative was demanding-
merely-that Maloney should remedy Hunt's default
consistently with Hunt's previously defined piecework
compensation terms, no conclusion would be warranted,
within my view, that Complainant was being penalized.
If, however, Williams was-actually-pressing Com-
plainant's management team to settle Hunt's wage pay-
ment delinquencies consistently with relevant joint agree-
ment compensation schedules, his demand might well-
now-merit "penalty" characterization , since Maloney's
management , had they complied, might have been con-
strained to provide-despite Hunt 's noncontract status-
payments greater than those which a simple guarantor
could be required to make. Nothing within the present
record , however, reveals the scope of Respondent
Union's November 22 demand, directed to Complainant's
management , precisely.)
Whatever the precise scope of Respondent Union's
wage payment demand may have been , that organiza-
tion's November 22 fringe benefit contribution demand
could not have been calculated to force Maloney's
prompt payment of such contributions specifically for
the benefit of Hunt's drywall finishers. Compare Painters
Orange Belt District Council 48 (Calhoun Drywall Co.),
supra at 1200-01. Consistently with the provisions of
their "Restated Agreements and Declarations of Trust,"
Respondent Union's several trust funds were commit-
ted-save under certain special circumstances-to pro-
vide fringe benefits solely for employees hired by joint
agreement signatory contractors . Thus, since Hunt, him-
self-within the period with which this case is con-
cerned-had never become a contract signatory, the
trustees could not have accepted fund contributions, prof-
fered by Hunt personally, to provide fringe benefits for
Hunt's drywall finishers . Necessarily , therefore , Business
Representative Williams' conceded November 22 course
of conduct could not, realistically , have been calculated
to compel Complainant 's payment of fringe benefit con-
tributions on behalf of Hunt's employees , despite Wil-
liams' professed beliefs that Complainant was, really,
McKellar's contractor of record; the concerned trust
fund trustees could not have used such payments to pro-
vide fringe benefits for Hunt's project workmen. (Con-
ceivably, Respondent Union's subsequent , successful,
prosecution of grievances against Complainant herein, on
contract violation charges-coupled with McKellar's
written commitment to remedy Hunt's fringe benefit
contribution "delinquencies" should Complainant finally
withhold compliance with a joint judicial committee
award, judicially confirmed-might have created a spe-
cial situation , sufficient to warrant a different conclusion.
That possibility will be considered, subsequently, within
this decision.)
And, since fringe benefit contribution payments, di-
rectly provided by Maloney 's management pursuant to
Respondent Union's November 22 demand , could not
have been utilized specifically for the benefit of Hunt's
drywall finishers on McKellar 's project , but could have
been utilized , merely, for the benefit of contractually
covered workmen generally qualified to participate in
fund benefit programs because of services performed for
contract signatory firms , paragraph 9(B)'s contract lan-
guage-which would , facially, mandate such payments-
must be considered a proscribed "secondary" provision,
subject to 8(e)'s statutory bar.
d. The construction industry proviso
Since determinations have been found warranted,
herein, that Respondent Union 's joint agreement subcon-
tract provisions are neither primary work -preservation
nor permissible area standards clauses, further determina-
tions must-now-be made in respect to whether these
clauses, though susceptible of construction as secondary
in their thrust , should nevertheless be considered protect-
ed under the construction industry proviso.
In this connection , some conclusion must be reached,
preliminarily , regarding a threshold question presented,
implicitly , within the present record: Should construction
industry proviso protection be denied, for the joint
agreement's challenged contract provisions , because
those provisions have not, specifically, been limited to
jobsite work? Clearly, no such denial of protection
would be warranted. Carpenters Bay Counties District
Council (Disney Roofing Co.), 154 NLRB 1598, 1603
(1965). Though a contractual provision may not be "ex-
pressly" limited to jobsite work, on its face, that fact will
not-alone-deprive the contractual language of 8(e)
proviso protection.
The General Counsel and the Complainant contend,
however, that article 4, paragraphs 9(B) and (C) should
not be considered privileged, consistently with the provi-
so, because such a recognized privilege would not com-
port with the Supreme Court's view-set forth in Con-
nell Construction Co. v. Plumbers Local 100, 421 U.S. 616
(1973), specifically-regarding the designated proviso's
scope. Basing their positions on this contention , the Gen-
eral Counsel and the Complainant contend-further-
that Respondent Union's refusal to furnish Maloney, par-
ticularly, with drywall finishers for work on McKellar's
project "on or after" November 22, 1977, coupled with a
refusal to refer "employees" from its hiring hall, unless
Complainant complied, directly, with the contractual
provisions challenged herein, violated the Act's
8(b)(4)(ii)(A) proscription.
Confronted with similar contentions, within a group of
cases concerned with substantially comparable contrac-
tual provisions, this Board has, recently, concluded that
Section 8(e)'s construction industry proviso-construed
consistently with the Supreme Court's Connell decision-
privileges "union signatory" subcontracting clauses,
within the context of a collective-bargaining relationship.
Carpenters Local 944 (Woelke & Romero Framing), 239
NLRB 241 (1978); Los Angeles Building Trades Council
(Donald Schriver), 239 NLRB 264 (1978); Operating Engi-
PAINTERS ORANGE BELT DISTRICT COUNCIL 48 (MALONEY SPECIALTIES)
neers Local 701 (Associated Builders), 239 NLRB 274
(1978). Presumably , proviso protection could-proper-
ly-be claimed , likewise, for contractual "guarantee"
provisions , such as article 4, paragraph 9(B) herein, ne-
gotiated within a collective -bargaining relationship's con-
text . See Operating Engineers Local 701, supra, in this
connection . Mindful of this Board's relevant rationale,
fully explicated within the cases cited , I so find.
Herein, however , the General Counsel and Complain-
ant contend, substantially , that with due regard for the
particular circumstances revealed within the present
record, Respondent Union's November 22 joint agree-
ment reaffirmation cannot-properly-be considered a
statutory "entry into" contractual commitments within a
presumptively "valid" collective-bargaining relationship's
context . Specifically, the General Counsel and Complain-
ant suggest , essentially , that-since Maloney had, prior
to November 22, subcontracted its La Jolla Village
Tennis Club responsibilities completely-that designated
joint agreement signatory firm had no direct "employ-
ees" working on McKellar 's project when Respondent
Union 's business representative sought to compel its
compliance with their collective -bargaining contract's
challenged subcontract provisions.
The suggestion noted derives, clearly , from the Gener-
al Counsel 's basic postulate that construction industry
firms , privy to contracts which define full-scale collec-
tive-bargaining relationships , nevertheless become
"stranger" contractors-like Connell Construction Co.
functionally-whenever they subcontract their responsi-
bilities, completely, with respect to some particular con-
struction project. That premise, within my view, merits
rejection.
Substantially , the General Counsel's conception,
should it be found worthy of Board concurrence, would
compels holdings that contractual provisions negotiated
to limit subcontracting-which were valid when negoti-
ated with a contractor whose employees the labor orga-
nization concerned represented or could represent on
some particular jobsite-would , ipso facto, become in-
valid whenever the signatory contractor , subsequently,
chose to subcontract his jobsite functions and responsibil-
ities, completely to some nonunion subcontractor. Such
holdings would subject contracting labor organizations
to statutory liabilities solely contingent upon unilateral
decisions made by contractually bound employers . I note,
in this connection , Federal District Court Judge Gray's
comment in Painters Orange Belt District Council 48 v.
Maloney Specialties , supra. The district judge therein de-
clared:
In light of the last quoted clause from the Connell
opinion, if Maloney had subcontracted most of the
work but also had utilized his own employees, the
authorization of the proviso clearly would apply. I
cannot believe that Maloney effectively could have
nullified the proviso by simply making certain that
none of his own employees were on the same job-
site as the subcontractor 's non-union people. [Em-
phasis added.]
1389
Presumbly, neither the General Counsel's representative,
nor Complainant's counsel would deny-herein-that
Respondent Union and Maloney's management did me-
morialize a full-scale collective-bargaining relationship
when Complainant's representative signed a proffered
"Agreement Counterpart" on May 6, 1975, which Wil-
liam A. Maloney, personally, subsequently reaffirmed.
Within his brief, indeed the General Counsel concedes:
. .. that Respondent and Maloney had a collective-
bargaining relationship, by virture of Maloney's exe-
cuting the counterpart agreement in 1975, which
bound it to the entire Joint Agreement, including
the guarantee and subcontracting clauses .. . .
When Complainant's May 6, 1975 counterpart contract
was signed, however, the firm did have drywall finishers,
directly hired, working on Big Bear Construction's then-
current project; with respect to such craft workers, Re-
spondent Union's previously negotiated joint agreement
defined wage rates payable, fixed working hours, and
specified various terms and working conditions. Thereaf-
ter, within the 11-month period which followed, Ma-
loney handled "somewhere between 10 to 20" projects
wherein, inter alia, they performed "drywall" contract
services, which Respondent Union's Drywall Finishers
Joint Agreement would have covered; Construction Su-
perintendent Grobarek testified, credibly, that "to the
best of [his] knowledge everything which the joint agree-
ment's substantive provisions would have required was
"taken care of properly. Upon this record, therefore,
there can be no doubt that Complainant and Respondent
Union maintained their previously memorialized full-
scale collective-bargaining relationship, certainly until
May 1976, when both of Complainant's McKellar project
contracts were subcontracted.
Further, within my view, Complainant and Respond-
ent Union continued to maintain their collective-bargain-
ing relationship thereafter. True, the record does warrant
a determination-which I have herein made-that Ma-
loney hired no craft workers, directly, for La Jolla Vil-
lage Tennis Club work. Nevertheless, when Hunt finally
decamped, Maloney's management representatives recog-
nized their responsibilities directly related to McKellar's
project; concededly they promptly sought "facts and fig-
ures" calculated to facilitate their decision with respect
to whether Complainant should "take over and com-
plete" whatever work their subcontractor would be leav-
ing undone, consistently with their commitments defined
within McKellar's contracts, previously granted. They
consulted, responsibly, with Business Representative Wil-
liams purportedly to determine whether a spray gun op-
erator-previously retained to complete certain special
tasks which had, prior thereto, been delayed-would be
permitted to continue work. Thus, between November
22 and 26 Complainant's vice president and construction
superintendent were-clearly-contemplating a takeover
whereby they might become a direct "employer" with
respect to both drywall finishers and their fellow work-
ers in several other crafts, concerned with McKellar's
project. They never "repudiated" their bargaining rela-
tionship with Respondent Union; their course of con-
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duct, rather, reflected some "contemplation" that it
might, shortly, become revitalized. Compare Los Angeles
Building Trades Council (Donald Schriver), supra, in this
connection. Accordingly, conclusions would seem to be
clearly warranted, herein, that Complainant had a viable
"ongoing" collective-bargaining relationship with Re-
spondent Union, throughout the period with which we
are presently concerned-and, further, that their joint
agreement's disputed subcontractor provisions were reaf-
firmed within the context of that relationship.
The General Counsel's brief likewise contends that-
should a collective-bargaining relationship be found cur-
rent between Respondent Union and Complainant
herein-their joint agreement's guarantee and subcon-
tractor provisions, with due regard for the Supreme
Court's Connell decision, should not be considered privi-
leged, consistently with Section 8(e)'s construction indus-
try proviso:
... because said clauses are operational at all times
and at all jobsites whether or not Maloney employs
any employees working within the craft jurisdiction
of Respondent, and because said contractual provi-
sions require that Maloney subcontract only to em-
ployers signatory to an agreement with Respondent.
For various reasons, previously noted and fully explicat-
ed within the Board's recent decisions construing the sig-
nificance and thrust of the Supreme Court's decision,
these contentions must, herein, be rejected. Article 4,
paragraphs 9(B) and (C) within Respondent Union's joint
agreement should be considered protected by Section
8(e)'s construction -industry proviso, notwithstanding the
relevant Connell decision, noted. I so find.
e. Contractual self-help provisions
Thus far, within this decision, determinations have
been reached that article 4, paragraphs 9(B) and (C)'s
language within Respondent Union's joint agreement car-
ries a secondary thrust; but that those contractual provi-
sions should-nevertheless-be considered privileged,
consistently with Section 8(e)'s construction industry
proviso. These determinations, however, cannot properly
be considered completely diapositive, herein. Within my
view, the record-considered in totality-presents a fur-
ther question: Should the joint agreement's challenged
subcontract provisions be considered deprived of 8(e)
proviso protection because various contractual "self-
help" or self-enforcement" provisions, separately set
forth, would sanction "economic action'.' calculated to
force or require a signatory firm's compliance with those
subcontracting restrictions? That' question, I conclude,
must now be considered. (Within the consolidated com-
plaint, the General. Counsel currently proffers no conten-
tion, specifically, that art. 4, pars. 9(B) and (C)'s provi-
sions, within their contractual context should be consid-
ered statutorily proscribed. Nor has the General Coun-
sel's representative suggested, within his brief, that art. 4,
pars. 9(B) and (C)'s language should be considered
„within Sec. 8(e)'s proscriptive sweep because , various
"self-help" or "self-enforcement" provisions, separately
set forth within Respondent Union's joint agreement,
may be "applicable" with respect thereto. The record
does, nevertheless, reveal the presence of several "self-
help" or self-enforcement" provisions within Respondent
Union's contract. No factual dispute-with regard to
their viability, their construction, or their relevance-re-
quires resolution. Further, the General Counsel has, spe-
cifically, charged Respondent Union with conduct pre-
sumptively sanctioned by two such provisions, which he
challenges as statutorily proscribed. With matters in this
posture, I find , the joint agreement 's several "self-help"
or "self-enforcement" clauses may properly be consid-
ered "related to the subject matter of the complaint", suf-
ficiently to justify, or possibly require, determinations
with regard to whether their presence in Respondent
Union 's contract should render art. 4 , pars . 9(B) and (C)
proscribable. See Alexander's Restaurant & Lounge, 228
NLRB 165, 166 (1977), enfd. 586 F.2d 1300 (9th Cir.
1978); Crown Zellerbach Corp., 225 NLRB 911, 912
(1976), and cases cited therein. Compare Frito v. NLRB,
330 F.2d 458, 461-465 (9th Cir. 1964), in this connec-
tion.)
Respondent Union's contract, now in question, con-
tains some six "self-help" or "self-enforcement" provi-
sions, previously quoted or summarized within this deci-
sion. Clearly, these provisions, considered on their face,
would sanction refusals-by craft workers contractually
covered-to commence or continue work whenever joint
agreement signatory firms were flouting, or failing to
comply with, article 4, paragraphs 9(B) or (C)'s require-
ments. Consistent with numerous Board decisions-most
of them judicially confirmed-I find these joint agree-
ment provisions, which would presumptively authorize
Respondent Union to generate or ratify "economic
action" calculated to enforce secondary subcontracting
provisions, sufficient to remove whatever privileges arti-
cle 4, paragraphs 9(B) and (C) could, otherwise, claim
pursuant to Section 8(e)'s relevant proviso. .
When Congress enacted that proviso, certain second-
ary clauses, within construction industry collective-bar-
gaining contracts, were-of course-made lawful. The
statute's legislative history, nevertheless, reveals Con-
gress' intent, clearly manifested, that such secondary
contractual provisions should not be considered enforce-
able by threats, restraint, or coercion, which Section
8(b)(4) would prohibit. In short, then, the statute reflects
a legislative purpose to limit permissible enforcement
procedures, with respect to privileged "hot cargo" con-
tracts within the construction industry, to judicial means,
solely. This Board has, conformably, held in Ets-Hokin
Corp., 154 NLRB 839, 840, 842 (1965), enfd. sub nom.
NLRB v. Electrical Workers IBEW Local 769, 405 F.2d
159, 162-163 (9th Cir. 1968), that:
... although a contract within the construction in-
dustry proviso to Section 8(e) is exempt from the
[proscription] of that section,, it may be enforced
only through lawsuits and not by threats, coercion,
or restraint proscribed by Section 8(b)(4)(B).
Further, within numerous, decisions, Board member ma-
jorities have declared-consistently with their conclusion
that Congress never sanctioned the nonjudicial enforce-
PAINTERS ORANGE EtELT DISTRICT COUNCIL 48 (MALONEY SPECIALTIES)
ment of secondary subcontractor clauses-that Section
8(e)'s proviso cannot , properly, be construed to permit
conjoined provisions in collective-bargaining contracts
which could , foreseeably sanction 8(b)(4) violations.
Bricklayers Local 5 (Greater Muskegon General Contrac-
tors), 152 NLRB 360 (1965 ), enfd. 378 E . 2d 859 (6th Cir.
1967). Ets-Hokin Corp., supra. Should such "self-help"
clauses be found valid , this Board holds, courses of con-
duct rendered permissible thereby could win judicial
sanction; the courts, then, could be requested to protect
particular varieties of self-help conduct-calculated to
support construction site "hot cargo " provisions-which
Congress had, clearly , desired to prohibit.
Within its recent Operating Engineers Local 701 deci-
sion , this Board 's conceptual approach , when required to
determine the validity of contractual "self-help" or self-
enforcement" provisions, has been explicated . Therein,
the Board declared that (239 NLRB 274, supra at 277):
The main focus of our analysis of self-help
clauses and their legality has been to determine the
relationship between the clause purporting to au-
thorize economic action and any secondary clauses
limiting the subcontracting of work. In other words,
subcontracting clauses and clauses authorizing the
union to engage in economic action independent of
one another, i.e., when a union 's right to engage in
economic action specifically excludes a subcontract-
ing clause from its application , do not violate Sec-
tion 8(e). It is only when the Board determines that
the parties intended that the economic enforcement
provisions apply to the subcontracting clauses that
violations of Section 8(e) will be found . [ Teamsters
Local 982 (J. K Barker Trucking Co.), 181 NLRB
515 (1970).] The Board has found that "self-help"
clauses remove otherwise proviso-protected agree-
ments from the scope of that proviso even though
the self-help and subcontracting provisions are
found in different articles of the agreement [Operat-
ing Engineers Local 12 (Robert E. Fulton), 220
NLRB 530 (1975)], even if the remedy the union
seeks would be the same if achieved by lawful judi-
cial means [Bricklayers Local 5, supra, 152 NLRB
360 (1965), and although the means of enforcement
reserved by the union were not strictly limited to
strikes or picketing . [Fresno, Madera, Kings and
Tulare Counties Building Trades Council (Gage Bros.
Construction), 218 NLRB 39 (1975). (Emphasis
added.)]
Herein, several "self-help" provisions within Respondent
Union's contract-specifically article 8 , sections 3, 4, and
5, together with article 19, section 3-B therein-provide
that contractually covered workers may withdraw or
withhold their services , and that Respondent Union may
"remove" such workers from construction projects, or
"refuse to permit" their performance of services under
various circumstances : First, whenever their contractual-
ly bound employer stands "lawfully indebted " by reason
of some "contract of hire " breach , or some joint agree-
ment provision 's breach ; second, whenever a signatory
contractor has "defaulted" or become "delinquent" with
1391
respect to wage payments of fringe benefit contributions;
third, whenever "money is due and payable to employees
either as wages or fringe benefits" bottomed upon serv-
ices previously rendered, for contractors who have sus-
pended work following some failure to satisfy their cur-
rent obligations; fourth, whenever "their employer" has
"violated" some joint agreement provision, or has "failed
or refused to comply" with a decision rendered by some
contractually sanctioned grievance adjustment tribunal;
fifth, whenever their employer's paychecks have been
dishonored or delayed in delivery beyond his stipulated
payday.
Upon the present record, with particular regard for
Respondent Union's consistently maintained contention
that Complainant, herein, was contractually bound to
make good Hunt's combined "wage and fringe benefit"
defaults, determinations would seem to be clearly war-
ranted, within this decision, that most of these separately
stated "self-help" provisions could be utilized to force or
require Maloney's compliance with article 4, paragraph
9(B)'s subcontractor "guarantee" requirements.
They have, of course, been so construed. Subsequent-
ly, within this decision, Respondent Union's actual resort
to conduct which the contractual "self-help" provisions
purport to privilege will be discussed, further.
In particular, article 9, paragraph 2(B) specifically-to-
gether with paragraph 4 therein, which may be surplus-
age-should be noted. Though article 4, paragraph 9(B)
and (C)'s provisions-which define several commitments
presumptively binding upon those joint agreement signa-
tories who subcontract-cannot properly be considered
linked, directly, to that contract's grievance arbitration
machinery, there can be no doubt that disputes springing
from purported failures to comply with article 4, para-
graphs 9(B) and (C)'s subcontracting restrictions would
be submitted to joint agreement grievance/arbitration
procedures for settlement. Indeed, this record reveals
that they have been so submitted. In short, articles 4 and
9, taken together-through the contractual language,
particularly, with which we are now concerned-reflect
Respondent Union's reserved right to use economic force
with respect to subcontracting disputes. Compare Operat-
ing Engineers Local 701, supra, in this connection. There-
in, this Board declared that (239 NLRB 274 at 278):
The grievance-arbitration procedure, however, is
simply an agreed-upon method for the resolution of
disputes arising under specific provisions of the con-
tract between the parties . As such, it is necessarily
connected to the contract provisions which are the
source of the disputes submitted for resolution. We
therefore hold that the immediate object of a self-
help clause . . . will not serve to obscure the under-
lying dispute which gives rise to a claim of liability
.. . . The effect of holding to the contrary would
be to insulate self-help clauses . . . through the
device of the grievance procedure. Read together
[the contractual provisions being considered] sanc-
tion economic action to ensure compliance with the
[contract's] subcontracting provisions . . . . This
result serves to remove [the article dealing with
subcontracting] from the protection it would other-
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wise enjoy under the proviso to Section 8(e).. . .
[It] is clear that if the underlying claim giving rise
to liability under [grievance-arbitration procedures]
is rooted in a secondary clause the fact that there is
an intermediate stage before the Union may resort
to economic action does not alter the fact that the
contract allows the Union to employ "non-judicial
acts of a compelling or restraining nature, applied
by way of concerted self-help" for the enforcement
of a secondary provision . [Emphasis added . Brack-
eted interpolations provided to promote clarity.]
Consistent with these considerations I find article 4,
paragraphs 9(B) and (C)'s subcontractor "guarantee" and
"union signatory" requirements , specifically and solely
because of their contractual conjunction with related
"self-help" or "self-enforcement" provisions, properly
subject to Section 8(e)'s proscription.
f. Threats, coercion, and restraint
With matters in this posture , Respondent Union's
course of conduct-bath during the work stoppage
which began November 22, 1976, on McKellar's La Jolla
Village Tennis Club project , and thereafter-must, neces-
sarily, be considered.
Nothing within the present record, of course, would
warrant a determination-within my view-that Business
Representative Williams directed Hunt's drywall finish-
ers-initially-to cease work. Previously, however,
within this decision, determinations have been made that
Respondent Union 's business representative-shortly fol-
lowing his receipt of notice regarding the stoppage's
cause-did ratify , condone, and support its continuation.
When a labor organization ratifies , condones , and sup-
ports refusals to work-however spontaneous their in-
ception may have been-such conduct clearly generates
coercion, within the meaning of Section 8 (b)(4) of the
Act, subject to Board proscription.
Herein-with their direct employer , Hunt, patently a
defaulter, but beyond immediate reach-drywall finishers
on McKellar 's project , with Business Representative Wil-
liams functioning as their spokesman , had clearly turned
to Maloney 's management representatives for remedial
action, calculated to rectify their situation. (By virture of
Complainant's two April 1976 contracts with McKellar,
the firm had committed itself, directly, to complete cer-
tain "drywall, heatfill, simulated acoustic ceiling, lath,
and plaster" work on McKellar 's project . Those commit-
ments had, subsequently , been subcontracted . Within
Hunt's subcontract , however, Maloney 's reserved right
to both "take over" and "complete" required work,
which that designated subcontractor might thereafter fail
to perform, had been confirmed. Under the circum-
stances, Complainant 's management representatives-sep-
arately from, and without regard for, their firm's art. 4,
pars. 9(B) and (C) commitments to Respondent Union
herein-clearly possessed contractual powers, plus a con-
tractual mandate , to take over Hunt's project responsibil-
ities.)
However, Maloney's responsibility to rectify Hunt's
wage payment default , plus his failure to make fringe
benefit contributions particularly with respect to drywall
finishers hired by the firm's subcontractor for service
within Respondent Union's trade jurisdiction, could be
considered derived, solely, from article 4, paragraphs
9(B) and (C) within their previously negotiated contract.
Within this decision, those contractual provisions have
been found-on their face-vested with a statutorily pro-
scribed secondary thrust; they have, further, been found
privileged by virtue of Section 8(e)'s construction indus-
try proviso, nevertheless. Finally, however, they have
been found disqualified from claiming proviso protection,
because of their functional conjunction with various
"self-help" or "self-enforcement" contract terms. Consist-
ent with the General Counsel 's contention , therefore I
find the coercion generated by Respondent Union's spon-
sored continuation of the November 22 work stoppage-
maintained, clearly, for the purpose of forcing or requir-
ing Complainant 's compliance with contractual provi-
sions considered within Section 8(e)'s proscriptive ban-
properly subject to Section 8(b)(4)(ii)(A)'s prohibition.
Compare Los Angeles Building Trades Council (Donald
Schriver), 239 NLRB 264 (1978), in this connection.
Further, I find Section 8(b)(4)(ii)(A) was-likewise-
violated when Maloney's management received notice
that their contractual "working privileges" would be
considered suspended , subsequent to May 16 , 1977, be-
cause of their failure to comply with a joint judicial com-
mittee determination, previously rendered, which defined
their article 4, paragraph 9(B), liabilities as subcontractor
Hunt's guarantor. (Maloney received notice that its con-
tractually defined working privileges were suspended
within a May 16 letter from the joint agreement 's admin-
istrative office, which Secretary-Treasurer Singleton had
signed . That letter, when discussed on the record herein,
prompted a query from Respondent Union's counsel
with respect to whether his client would be charged
with a statutory violation bottomed thereon. The Gener-
al Counsel's representative, however, vouchsafed no
direct reply; he declared, merely, that the General Coun-
sel sought determinations consistent with his consolidat-
ed complaint's specific charges. My conclusions herein-
that Singleton's notice of suspension with respect to Ma-
loney's contractual "working privileges" should, indeed,
be considered conduct, chargeable to Respondent Union
which flouted a statutory prohibition-falls, I find,
within the comprehensive sweep of pars. 15(a), 18, and
20, set forth in the General Counsel's consolidated com-
plaint, specifically. The General Counsel does charge,
therein, that sometime "after" November 22, Respondent
Union "threatened Maloney with [a] refusal to furnish or
refer employees from its hiring hall" pursuant to contrac-
tual commitments unless Complainant complied with art.
4, pars. 9(B) and (C)'s provisions.)
Singleton 's letter-so the record shows-clearly con-
veyed Respondent Union's meaningful "threat" that
drywall finishers would not be dispatched, thereafter,
pursuant to Complainant's possible request . Though some
testimony on record herein, does suggest that Maloney's
management representatives may have-subjectively-
determined before May 18, 1977, that their firm would
voluntarily forgo future "drywall installation" work, Re-
PAINTERS ORANGE BELT DISTRICT COUNCIL 48 (MALONEY SPECIALTIES)
spondent Union's notice would not, thereby, have been
rendered moot.
In his brief, Complainant's counsel seeks a determina-
tion, further, that the joint judicial committee' s assess-
ment of fringe benefit liability and liquidated damages
should likewise be considered coercion, within Section
8(b)(4)(ii)(A)'s proscriptive reach. However, for several
reasons, no such determination-within my view-would
be warranted.
First: Within his consolidated complaint, the General
Counsel does charge that Respondent Union's resort to
joint agreement grievance procedures-calculated to de-
termine Complainants article 4, paragraph 9(B) liability
for Hunt's nonpayment of fringe contributions-consti-
tuted a reaffirmation of both contractual "union signato-
ry" and "guarantee" provisions challenged herein the
General Counsel's representatives, however, presses no
concurrent contention that Respondent Union's determi-
nation to prosecute "contract violation" charges-stand-
ing alone-should be considered "coercion" statutorily
forbidden, calculated to force or require Complainant's
compliance therewith. See Painters Orange Belt District
Council 48 (Calhoun Drywall), supra at 385 fn. 4, in this
connection. And charging parties, though privileged par-
ticipants in Board proceedings, cannot-without the
General Counsel's concurrence-urge statutory viola-
tions beyond those formally charged, within a complaint
fairly construed. With matters in their present posture,
therefore, determinations consistent with Complainant's
contention, noted would be supererogatory.
Second: Should this Board, nevertheless, consider some
disposition of Complainant's contention-upon this
record-necessary or proper, no determination that Re-
spondent Union's resort to joint agreement grievance
procedures violated Section 8(b)(4) could reasonably be
considered justified. Previously, within this decision, arti-
cle 4, paragraphs 9(B) and (C)'s provisions have been
found-per se-privileged despite their secondary thrust,
pursuant to Section 8(e)'s construction industry proviso.
(Though deprived of proviso protection-because of
their contractual conjunction with various "self-help" or
"self-enforcement" clauses, drafted to validate direct
"economic action" looking toward their effectuation-
the specific contractual provisions challenged herein
cannot be considered, on their face, violative of law.)
Respondent Union's grievance prosecution, therefore,
can hardly be considered calculated to accomplish some
"object" statutorily proscribed. Teamsters (California
Dump Truck Owners Assn.), 227 NLRB 269, 274 (1976).
Business Respresentative Williams' grievances charges-
when prosecuted before a properly constituted joint judi-
cial committee several months after Complainant's re-
moval from McKellar's project-claimed no rights bot-
tomed upon contractual "self-help" clauses. Neither their
presence-within the joint agreement herein-nor Re-
spondent Union's November 22-November 29 course of
conduct which they presumptively sanctioned, provided
any predicate for Respondent Union's contract violation
claims. Respondent Union,, rather, sought determinations,
with respect to Maloney's fringe benefit contribution li-
ability, premised-merely-upon colorable claims of con-
tract right. (In this connection, further, I note Fund
1393
Manager Richards' testimony, proffered for the record
without challenge or contradiction, that following the
joint judicial committee 's decision, and specifically "by
reason of' that decision-the particular drywall finishers
who had performed McKellar project services, while on
Hunt 's payroll, were given personal book credits for
their hours worked, looking toward their prospective
benefit entitlement from various trust funds. Richards'
testimony, I find, comports with relevant provisions
found in the several "Declarations of Trust" noted, pre-
viously, within this decision. Within those trust docu-
ments, specifically pursuant to art. 1, sec. 1.1 (b), therein,
Maloney was clearly a covered "employer" committed
to provide trust fund contributions. Within the designat-
ed article's sec . 1.3(g) beneficiary "employees" were de-
fined. Such "employees" encompass persons "performing
work within the scope of said collective-bargaining
agreement, the time spent for which is judicially determined
to be subject to provisions of said collective-bargaining agree-
ment requiring payment to this Trust Fund." (Emphasis
added.) Pursuant to art. IV, sec. 4.1(a) within the several
trust declarations , contractually committed employers
compassed within a declaration of trust's definition must
make prompt contributions on behalf of "employees"
without qualification . Since fringe benefit contributions,
proffered by Complainant on behalf of Hunt's drywall fin-
ishers consistently with a joint judicial committee decisions,
could, therefore, have been "accepted" by the trustees of
concerned Painters trust funds , and could have been uti-
lized to provide benefits for which Hunt's drywall finishers
might subsequently qualify, Complainant's payments could
no longer be considered "strictly a penalty" laid upon
that joint agreement signatory because of Hunt's failure
to become contractually bound, likewise.)
Within several cases, this Board has, previously, found
liquidated damage assessments -levied to punish failures
of compliance with contractual requirements considered
violative of Section 8(e) specifically-proscribed, consist-
ently with Section 8(b)(4)'s mandate. No such determina-
tion could be considered required, however, on this
record; by virtue of Section 8(e)'s proviso, the liquidated
damages-herein-were levied in connection with a joint
judicial committee decision bottomed upon statutorily
privileged contractual provisions.
With matters in their present posture, then, Respond-
ent Union's right to prosecute "contract violation" griev-
ances, and compel compliance with a favorable joint ju-
dicial committee decision-specifically by judicial means-
cannot be gainsaid.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent Union's course of conduct, set forth in
section III, above, occurring in connection with the busi-
ness operations of Complainant described in section 1,
above, had a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
1394 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Since I have found that Respondent Union did engage
in, and continues to engage in, an unfair labor practice, I
will recommend that the labor organization, together
with its representatives, cease and desist therefrom, and
take certain affirmative action, including the posting of
appropriate notices, designed to effectuate the policies of
the Act.
In view of my findings of fact herein, and on the
entire record in this case, I make the following
CONCLUSIONS OF LAW
1. Complainant Maloney Specialties, Inc. is an employ-
er within the meaning of Section 2(2) of the Act, en-
gaged in commerce and business activities which affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Respondent Union Orange Belt District Council of
Painters No. 48, AFL-CIO, CLC is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Southern California Drywall Finishers Joint
Agreement, effective between July 1, 1974, and June 30,
1977, together with the specific "Agreement Counter-
part" signed December 18, 1975, by Maloney Specialties,
Inc., pursuant to which Complainant became privy to
the joint agreement designated, constituted agreements
contrary to Section 8(e) of the Act, solely by reason on
their self-enforcement provisions.
4. Respondent Union-when its designated representa-
tives ratified, endorsed, tacitly sponsored, and supported
a spontaneous, previously commenced work stoppage
calculated to force or require Complainant's compliance
with article 4, paragraphs 9(B) and (C) within the joint
agreement designated; when they sought to compel
Complainant's compliance with the contractual provi-
sions designated through a grievance proceeding pursued
in conformity with the joint agreements relevant griev-
ance and arbitration provisions; and when they caused
the Sourthern California Drywall Finishers Administra-
tive Office to notify Complainant that its "working privi-
leges" under the joint agreement designated had been
suspended-reaffirmed, invoked, gave effect to, and re-
entered into various self-enforcement or self-help provi-
sions applicable to article 4, paragraphs 9(B) and (C) of
their 1974-1977 collective-bargaining contract.
5. By reentering into, reaffirming, invoking, and giving
effect to various self-enforcement or self-help provisions
applicable to article 4, paragraphs 9(B) and (C) within
the joint agreement designated, Respondent Union vio-
lated Section 8(e) of the Act.
6. Respondent Union-when its designated representa-
tives ratified, endorsed, tacitly sponsored, and supported
a spontaneous, previously commenced work stoppage
calculated to force or require Complainant's compliance
with the joint agreement provisions previously specified
herein; and when they caused their contractually estab-
lished administrative office to notify Complainant that its
"working privileges" contractually provided had been
suspended-coerced or restrained Complainant in viola-
tion of Section 8(b)(4)(ii)(A) of the Act.
7. The specified unfair labor practices are unfair labor
practices affecting commerce and the free flow of com-
merce within the meaning of Section 2(6) and (7) of the
Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent Union, Orange Belt District Council
of Painters No. 48, AFL-CIO, CLC, Riverside , Califor-
nia, its officers , agents, and representatives, shall
1. Cease and desist from
(a) Reaffirming, entering into, invoking , or giving
effect to contractual self enforcement or self-help provi-
sions-within Respondent Union's previously negotiated
1974- 1977 Sourthern California Drywall Finishers Joint
Agreement with Southern California Drywall Contrac-
tors Association, Inc., various member contractors, and
nonmember signatory contractors , or within any succes-
sor contract currently in force-so far as those contrac-
tual self-enforcement or self-help provisons may be appli-
cable to the designated joint agreement 's sublet work
clause, article 4, paragraphs 9(B) and (C), or substantially
similar provisions within a successor contract, to the
extent found unlawful herein.
(b) Coercing or restraining Maloney Specialties, Inc.,
or any person engaged in commerce or in an industry af-
fecting commerce , where an object thereof is forcing or
requiring an employer to enter into an agreement prohib-
ited by Section 8(e) of the Act, by reason of self-help or
self-enforcement provisions.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its business office and meeting halls copies
of the attached notice marked "Appendix."2 Copies of
the notice , on forms provided by the Regional Director
for Region 21, after being signed by the Respondent's
authorized representative , shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered , defaced, or cov-
ered by any other material.
(b) Furnish the Regional Director for Region 21 with
sufficient signed copies of the attached notice which the
Regional Director may furnish to Maloney Specialties,
Inc., for posting , should Maloney be willing , in places
where notices to employees are customarily posted.
1 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
2 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."
PAINTERS ORANGE BELT DISTRICT COUNCIL 48 (MALONEY SPECIALTIES)
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing, during which all parties were given an
opportunity to present evidence and argument, it has
been determined that we violated the law by committing
unfair labor practices . In order to remedy such conduct,
we are being required to post this notice. We intend to
comply with this requirement, and to abide by the fol-
lowing commitments.
1395
WE WILL NOT enter into, maintain, give effect to, or
enforce contractual self-help or self-enforcement provi-
sions within our collective-bargaining contracts with
Southern California Drywall Contractors Association,
Inc., various member contractors, and nonmember signa-
tory contractors, so far as such action may be authorized
to maintain, give effect to, or enforce "Sublet Work"
provisions, Article 4, paragraphs 9(B) and (C) within
such contracts, or substantially comparable provisions
within current contracts.
WE WILL NOT coerce or restrain Maloney Specialties,
Inc., or any person engaged in commerce or in an indus-
try affecting commerce, where an object thereof is forc-
ing or requiring an employer to enter into an agreement
prohibited by Section 8(e) of the Act, by reason of self-
help or self-enforcement provisions.
ORANGE BELT DISTRICT COUNCIL OF
PAINTERS, No. 48 , AFL-CIO, CLC