277 N.L.R.B. 1470 (N.L.R.B. 1986)

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

National Labor Relations Board - Board DecisionsJan 9, 1986

277 N.L.R.B. 1470 (N.L.R.B. 1986)

1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Orange Belt District Council of Painters No. 48, AFL-CIO, CLC and Frank A. Calhoun and Painting and Decorating Contractors Associa- tion of Orange County, Inc.; Painting and Deco- rating Contractors Association of San Diego County, Inc.; Tri-County Chapter Painting and Decorating Contractors of America , Inc., Par- ties to the Contract Orange Belt District Council of Painters No. 48, International Brotherhood of Painters and Allied Trades, AFL-CIO, CLC and William R. Johnson , d/b/a Johnson Plastering Co. Cases 21-CE-185 and 21-CE-212 9 January 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 23 January 1980 Administrative Law Judge Earldean V. S. Robbins issued the attached deci- sion. The Respondent, the General Counsel, and the Charging Parties filed exceptions and support- ing briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order as modified. We agree with the judge that the Respondent violated Section 8(e) of the Act because the self- help provisions' of its joint agreements with the Associations and its short-form agreements with Johnson are applicable to the agreements' second- ary subcontracting provisions.2 In Plumbers District Council 16 (Jamco Development), 277 NLRB 1255 (1985),2 the Board explained the nature of such an 8(e) violation and the extent of the order remedy- ing it. We there stated that although self-enforce- ment provisions violate Section 8(e) to the extent that they interrelate with secondary provisions in construction industry collective-bargaining agree- ments, the secondary provisions themselves retain the protection of the Section 8(e) proviso and may be enforced by resort to grievance-arbitration or judicial processes.4 We apply the Jamco rationale to this case, and we modify the judge's recom- mended Order to make clear the limited extent of the injunction against the self-help provisions.s ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent , 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 as modified. 1. Substitute the following for paragraph 1(a): "1. Cease and desist from entering into, maintain- ing, giving effect to, or enforcing the self-help pro- visions of its 1969-1974 , 1974-1977, and 1977-1980 joint agreements with Painting and Decorating Contractors Association of Orange County, Inc.; Painting and Decorating Contractors Association of San Diego County, Inc.; Tri-County Chapter Painting and Decorating Contractors of America, Inc.; and its 1970 and 1974 short-form agreements with William R. Johnson d/b/a Johnson Plastering Co., insofar as they apply to the subcontracting provisions of the agreements." 2. Substitute the attached notice for that of the administrative law judge. 4 Accordingly, we adopt the judge's conclusion that it would be inap- propriate to grant the General Counsel's request to require the Respond- ent to withdraw and cease processing its grievance against Johnson seek- ing to enforce secondary contract provisions 5 We also substitute the following for Conclusions of Law 3 and 4, and renumber Conclusion of Law 5 3 By entering into, maintaining, giving effect to, or enforcing the self-help provisions-of its 1969-1974, 1974-1977, and 1977-1980 joint agreements with the Associations and its 1970 and 1974 short-form agreements with Johnson insofar as they apply to the subcontracting provisions of the agreements, the Respondent violated Section 8(e) of the Act APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government i Sec VI, par 8 of the 1969-1974 joint agreement and as incorporated in the Johnson 1970 short-form agreement, art 9, par 4 of the 1974-1977 Joint agreement and as incorporated in the Johnson 1974 short-form agreement; and art 30, par 7 of the 1977-1980 Joint agreement 2 Sec 1, pars 7B and C of the 1969-1974 joint agreement and as incor- porated in the Johnson 1970 short-form agreement, art. 4, pars 9B and C of the 1974-1977 joint agreement and as incorporated in the Johnson 1974 short-form agreement, art 5, pars 9B and C of the 1977-1980 joint agreement. a See also Teamsters Local 83 (Cahill Trucking), 277 NLRB 1260 (1985) The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT enter into, maintain, give effect to, or enforce the self-help provisions of our 1969- 1974, 1974-1977, and 1977-1980 joint agreements with Painting and Decorating Contractors Associa- tion of Orange County, Inc.; Painting and Decorat- 277 NLRB No. 173 PAINTERS ORANGE BELT DISTRICT COUNCIL 48 (PAINTING CONTRACTORS) ing Contractors Association of San Diego County, ]Inc.; Tri-County Chapter Painting and Decorating Contractors of America, Inc.; and our 1970 and 1974 short- form agreements with William R. John- son d/b/a Johnson Plastering Co., insofar as they apply to the subcontracting provisions of the agree- ments. ORANGE BELT DISTRICT COUNCIL OF PAINTERS No. 48, AFL-CIO, CLC Edward P. Nichols, Esq., for the General Counsel. Herbert Ansell, Esq., of Los Angeles, California, for the Respondent. Richard Freeman, Esq. (Luce, Forward, Hamilton & Scripps), and Frank A. Calhoun, of Los Angeles, Cali- fornia, for Charging Party Calhoun. Robert N. White, Esq., (Joohnson, Manfredi & Thorpe), and Frank A. Calhoun, of Los Angeles, California, for Charging Party Johnson Plastering Company. DECISION STATEMENT OF THE CASE EARLDEAN V. S. ROBBINS , Administrative Law Judge. This case was tried before me in Los Angeles, California, on August 21, 1979. The charge in Case 21-CE-185 was filed by Frank A. Calhoun (Calhoun) and served on Re- spondent on July 27 1977, and served on the Employer Associations named as parties to the contract' (the Asso- ciation) on July 27 and 28, 1977 . A complaint issued in Case 21-CE-185 on June 28, 1978 , alleging that Re- spondent has violated Section 8(e) of the National Labor Relations Act (the Act). The charge in Case 21 -CE-212 was filed by William R . Johnson , d/b/a Johnson Plaster- ing Co. (Johnson) and served on Respondent on June 9, 1978, and an amended charge therein was filed by John- son on June 20, 1978 , and served on Respondent on June 21, 1978 . A complaint issued in Case 21-CE-212 on Oc- tober 4, 1978, alleging that Respondent has violated Sec- tion 8(e) of the Act. An order consolidating cases 21- CE-185 and 21-CE-212 and a consolidated amended complaint issued on March 30 , 1979, alleging that Re- spondent has violated Section 8 (e) of the Act. The prin- cipal issue is whether Respondent has entered into col- lective-bargaining agreements containing provisions vio- lative of Section 8(e) of the Act, which are not protected by the first proviso to Section 8(e) of the Act because the agreements permit economic action to enforce said provisions. 2 ' The Associations were originally charged as Respondents but, at the hearing, the complaint was amended to delete these Employer Associa- tions as Parties Respondents - 2 The General Counsel and the Charging Parties did not call any wit- nesses Respondent called one witness , Peter Richards, fund manager of the Orange Belt Painters Trust Funds FINDINGS OF FACT 1471 I. JURISDICTION At all times material herein, Johnson, an individual doing business under a trade name, has been engaged in lathing, plastering, drywall, and painting as a subcontrac- tor in the building and construction industry in Palm Springs, California. In the normal course and conduct of the business operations, Johnson anually purchases and receives goods and products valued in excess of $50,000 directly from suppliers located outside the State of Cali- fornia. Each of the Associations (named herein as parties to the contract and collectively called the Associations) are Associations comprised of various employers who are engaged in business as contractors or subcontractors in the building and construction industry in Southern Cali- fornia, and which exist for the purpose of, and do engage in, collective bargaining on behalf of their respective em- ployer-members with various labor organizations, includ- ing Respondent. The employer-members of the Associa- tions, in the aggregate, annually purchase and receive goods and products valued in excess of $50,000 directly from suppliers outside of the State of California. The complaint alleges, Respondent admits, and I find that Johnson and each of the Associations and their em- ployer-members each is an employer engaged in com- merce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that Respondent is now , and has been at all times materi- al herein , a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts In 1969 Respondent and its affiliated Local Unions en- tered into a collective-bargaining agreement with the As- sociations and certain other employer associations , effec- tive by its terms through June 30, 1974, herein called the 1969-1974 Joint Agreement, which provides, inter alia: SECTION I EMPLOYERS 7. SUBLET WORK„ B. Sub-Contracts: The Employer agrees that in the event he sub- contracts any work, there shall be contained in his contract with the sub-contractor a provision that the subcontractor shall be responsible for the pay- ment of all the wages and fringe benefits provided under this agreement. In the event that any subcon- 1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tractor fails to pay the wages or fringe benefits pro- vided under this Agreement, the Employer shall become liable for the , payments of such sums and such sums shall immediatly become due and payable by the Employer. C. Contracts: The Employer parties to this Agreement hereby agree that they will not sublet any work coming under the jurisdiction of the International Brotherhood of Painters and Allied Trades, to any contractor who is not a signatory to this Agreement. SECTION VI JUDICIAL TRIBUNALS FOR THE ARBITRATION OF GRIEVANCES ... During the term of this agreement there shall be established the following committees: 1. THE JOINT JUDICIAL COMMITTEE The Joint Judicial Committee shall hear and deter- mine such disputes and grievances that may arise and which shall be properly submitted to them under the terms of this Agreement. All decisions of the Judicial Committee shall be final and binding upon all parties unless an appeal therefrom is taken in writing within seven (7) days .... The Appeals Committee shall render a deci- sion upon the appeal within seven (7) days after the matter is heard. Such decision shall be final and binding upon all parties. Heretoforth such decision may be enforced as an award of arbitrators under the provision of California Code of Civil Proce- dures. 2. APPEALS COMMITTEE 8. It is mutually agreed that the Union shall have the right to remove its members from any job to en- force' Sections VI, XII, XIII, XIV, XVIII, XXVII, XXVIII, XXIX and XXX, XVII. About May 27, 1970, Respondent entered into a short- form collective-bargaining agreement with Johnson, which by its terms incorporated the terms and conditions of the 1969-1974 Joint Agreement. In 1974, Respondent and the Association, along with certain other labor organizations and employer associa- tions, entered into a collective-bargaining agreement, herein called the 1974-1977 Joint Agreement, effective by its terms from July 1, 1974, until June 30, 1977, which provided, inter alia: ARTICLE 4 AUTHORITY OF SIGNATORY TO EXECUTE 9. SUBLET WORK B. 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 No. 48 prior to commencement of the job by the subcontractors. There shall be contained in the con- tract with the subcontractor a provision that the subcontractor shall be responsible for the payment of all 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 Agreement, employer shall become liable for the payment of such sums, and such sums imme- diately become due and payable by the employer. C. CONTRACTS: The employer parties to this Agreement hereby agree that they will not contract any work covered by this Agreement unless the subcontractor is properly licensed and signatory to this Agreement. The 1974-1977 Joint Agreement provides for a Joint Judicial Committee whose decisions have the same bind- ing effect as set forth in the 1969-1974 Joint Agreement. Appeals from such decisions may be made to a designat- ed arbitrator. It further provides, inter alia: ARTICLE 9 JUDICIAL TRIBUNALS FOR THE ARBITRATION OF GRIEVANCES 2. ARBITRATION c. 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 pertaining to the Joint Judi- cial Committee and/or Arbitrator procedures or who, after due hearing as described heremabove, re- fused to abide by the decision rendered either by the Joint Judicial Committee or the Arbitrator. It shall be the responsibility of the Administrative Office to notify the District Council of Painters 'and Allied Trades No. 48 of such employers whose con- duct is referred to in this paragraph, and it shall be the duty of representatives of the District Council of Painters and Allied Trades No. 48 to advise em- ployees of such employer(s) accordingly. PAINTERS ORANGE BELT DISTRICT COUNCIL 48 (PAINTING CONTRACTORS) 4. It is mutually agreed that the Union shall have the right to remove its members from any job to en- force the provisions of the Agreement. About July 15, 1974, Respondent entered into a short- form collective-bargaining agreement with Johnson, which by its terms, incoi porated the terms and condi- tions of the 1974-1977 Joint Agreement. About July 1, 1977, Respondent and the Associations along with certain other labor organizations and employ- er associations entered into a collective-bargaining agree- ment, herein called the 1977-1980 Joint Agreement, ef- fective by its terms from July 11, 1977, until June 30, 1980, which provides, inter alia: ARTICLE 5 1473 affected by use of the basic contractual rate applica- ble to journeymen, apprentice, or clean up, irrespec- tive to the actual rate being paid by the employer. The conversion formula described above and else- where in this Agreement is recognized as the most practical and accurate means of determining the loss of hours of bargaining unit work to the employees and the contractually required monetary payments. Such conversion formula is neither intended nor designated as ,a penalty against any party to this Agreement. C. CONTRACTS: The employer parties to this Agreement hereby agree that they will not contract any work covered by this Agreement unless the subcontractor is prop- erly licensed and signatory to this Agreement. AUTHORITY OF SIGNATORY TO EXECUTE 9. SUBLET WORK: B. 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 o1' Painters Allied Trades No. 48 prior to commencement of the job by the subcon- tractors . There shall be contained in the contract with the subcontractors a provision that the subcon- tractor shall be responsible for the payment of all wages and ' fringe benefits provided under this Agreement. In the event that any subcontractor fails to pay the wages or other monetary obligations provided under this Agreement, the employer shall become liable for the payment of such sums, and such sums immediately become due and payable by the employer. In the event that work described in this Agree- ment is subcontracted to any party not signatory to this Agreement, all monies paid to the subcontrac- tor shall be considered gross wages and divided by the basic hourly wage rate, excluding fringe benefits to determine the hours of bargaining unit work lost. Such hours are to be assessed at an amount equiva- lent to all contractual contributions required of the employer, including fringe benefits and dues check- off. This formula is to be utilized whether or not the subcontractor employs workmen or performs such bargaining unit work alone. While the gross monies paid to such subcontractor are the appropri- ate sum to be converted to contributions due and owing, in the event that the signatory contractor can authenticate material overhead and profit margin on the part of the subcontractor, such au- thentication may be considered by the Orange Belt Painters Trust Funds and/or Joint Judicial Commit- tee and a reduction made in the event that such is determined to be appropriate. It is recognized by the parties that each case depend's upon its own facts and that any reduction thus made either by the Board of Trustees of the Joint Judicial Committee shall not constitute a precedent in any future case. The conversion formula as described above will be ARTICLE 30 LEGAL AND ECONOMIC REMEDIES 7. It shall not be a violation of this Agreement for the Union to refuse to permit any member to work for an employer who is indebted to the Union , Administrative Office, Orange Belt Painters Trust Funds , or any employee of such employer by reason of such employer 's breach of this Agree- ment, such as refusal to cooperate with respect to auditing procedures, refusal to abide by the terms of any arbitration award , or failure to comply with job registration requirements . The Union's right to refuse to permit workmen to work and the Union's right to remove workmen from the job because of unpaid wages and fringe benefits , or other viola- tions of this Agreement may be undertaken without prior resort to the grievance and arbitration proce- dures contained in this Agreement. The three agreements involved herein all provide that Respondent may conduct an audit of the records of em- ployer-signatories to determine if the employer is in com- pliance with the agreements . A major purpose of such audits is to determine whether the employer has made the required contributions to the various trust funds and the appropriate dues checkoff . The funds which have been in existence throughout the life of the three agree- ments herein are Health and Welfare Insurance Trust Fund, the Life Insurance Trust Fund , the Pension Trust Fund, the Vacation Trust , and the Apprenticeship Trust Fund. Peter Richards , fund manager , testified that if an audit discloses that an employer-signatory has subcontracted unit work to a subcontractor signatory to a collective,- bargaining agreement with another union affiliated with AFL-CIO Building Construction Trades or the Interna- tional Brotherhood of Teamsters , the policy of the board of trustees of the funds is not to pursue collection of fringe benefits . Thus, in those circumstances , no claim is made with respect to the subcontracted work. If an audit 1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discloses that an employer-signatory has subcontracted work which is arguably work covered by the collective- bargaining agreement , a claim is made for fringe benefits on the number of hours worked , The number of hours is determined by the method of computation spelled out in article 5, section 9B, of the 1977-1980 Joint Agreement set forth above.' As a result of the audit, the auditing division of the funds submits an audit billing to the employer-signatory. If the employer-signatory fails to make payment in ac- cordance with the billing, a charge of violation of the contract is filed for nonpayment of fringe benefits. The billing is made in this manner without regard to the number of employees actually utilized by the subcontrac- tor in performing the subcontract , or the number of hours actually worked . Nonunion employees receive no credit or entitlement to benefits based on such contribu- tions. The employer -signatory is billed for union dues even though, in these circumstances , there exists no checkoff authorizations. The moneys collected in this manner are deposited into the general account of the appropriate funds. If the nonunion subcontractor himself actually performs all the work then he receives individual credit for these contri- butions as an "employee" of the employer-signatory. If the work is performed by employees of the nonunion subcontractor , the contributions are not credited to any individual employee, rather it is utilized for the general administration of the funds. In 1975 Johnson 's records were audited . The audit re- sulted in a billing. The billing was not paid4 and about November 11, 1975, a grievance in this regard was filed by the Union seeking payment of the moneys claimed in the audit billing which spanned a period from October 1, 1972, through March 31, 1975. In accordance with the agreement , a hearing was held before the Joint Judicial Committee on August 30 and 31, 1976. The determina- tion of the Joint Judicial Committee was appealed to ar- bitration and in November 1976, hearings commenced before Arbitrator Melvin Leonard relating to the billing under the 1974-1977 Joint Agreements Following some 12 or 13 hearings an arbitration award issued on August 2, 1977. In February 1978 hearings commenced before Leonard on the balance of the claims-that portion based on both paint and drywall work under the 1972-1974 short-form agreement and that portion based on paint work under the 1974-1977 short-form agreement . Approximately 20 arbitration hearings have been held and, at the time of the hearing herein , further arbitration hearings were scheduled. A portion of the claim currently pending in arbitration related to purported subcontracting to non- union subcontractors by Johnson. 3 This method of computation was also utilized during the term of pre- ceding agreements 4 Johnson has paid a small portion of the billing The balance of the total claim is $29,887 87 5 The amount claimed by Respondent under this portion of the griev- ance was $3786 69 6 Johnson challenged the arbitrator 's jurisdiction over this portion of the claim The arbitrator ruled against Johnson in this regard Thereafter Johnson agreed to continue in arbitration under protest and to challenge this ruling B. Position of the Parties The General Counsel and the Charging Parties con- tend that two types of clauses contained in the three Joint Agreements involved herein are secondary and vio- lative of Section 8(e) of the Act One, referred to herein as the guarantee clauses, provides that the employer-sig- natories must require that its subcontractors pay all wages and fringe benefits provided under the Joint Agreements and that, in the event the subcontractor fails to do so, the employer-signatory is liable , for the payment of such sums . The other , referred to herein as the union signatory clauses, requires that the employer -signatory subcontract only to subcontractors who are signatory to the Joint Agreements. Specifically, the contention is that the provisions which give Respondent that right to remove its members from any job to enforce these clauses is a self-enforcement clause which removes the guarantee and union signatory clauses from the construc- tion industry proviso to Section 8(e) of the Act.7 The Charging Party also argues that the guarantee clause and the union signatory subcontracting clause is not protected because the work contemplated by the 1969-1974 and the 1974-1977 Joint Agreements improp- erly include off-jobsite work, and because an ongoing collective-bargaining relationship does not exist between Johnson and Respondent because Johnson's most recent agreement with Respondent expired in June 1977 and Respondent is attempting to enforce expired union signa- tory provisions through arbitration . Thus, argues John- son, the challenged union signatory and guarantee clauses were not "entered into" (as reaffirmed by Re- spondent 's claims in arbitration) in the context of a col- lective-bargaining relationship and, absent such a rela- tionship, the clauses are not protected by the construc- tion industry proviso to Section 8(e) of the Act and therefore are void and unenforceable. Respondent makes several arguments: 1 The subcontracting clauses in issue herein are the product of consensual collective bargaining and where, as here, there is no showing of a clear violation of the law, are not subject to Board censorship. 2. The subcontracting clauses involved herein relate directly to the funding of trust funds and continuity of work opportunities in the paint industry and are there- fore primary in nature and, consequently , the clauses al- lowing economic help to enforce arbitration awards based on such clauses are equally primary and not within the proscription of Section 8(e) of the Act. 3 Assuming that the subcontracting clauses are sec- ondary, the withholding of manpower for the purpose of enforcing an arbitration clause based thereon is primary, not secondary activity. 4. The attempt to invalidate the subcontracting clauses, because of the presence of economic self-help remedies, is beyond the proper jurisdiction of the Board in that it 7 The 1969- 1974 Joint Agreement provides for such self -enforcement to enforce the final and binding decisions reached under the contractual grievance procedure The later two Joint Agreements provide for such self-enforcement to enforce the provisions of the contract The 1977-1980 Joint Agreement specifically permits such self-enforcement without prior resort to the contractual grievance and arbitration provisions PAINTERS ORANGE BELT DISTRICT COUNCIL 48 (PAINTING CONTRACTORS) 1475 seeks punitive action without regard to that which is necessary to remedy an alleged wrong. 5. The argument that the self-help clause removes the subcontracting clauses from the protection of the con- struction industry proviso to Section 8 (e) is moot con- cerning Johnson inasmuch as the self-help clause is to en- force arbitration awards , the arbitration is still pending, and Johnson filed the charge in Case 21-CE--212 at a time when he was no longer signatory to a collective- bargaining agreement with Respondent. C. Conclusions Section 8(e) of the Act prohibits an employer and a labor organization from entering into an agreement whereby the employer agrees to cease doing business with any other person . " However, it is well established that clauses which are primary rather than secondary in nature are not proscribed by Section 8(e). Specifically, primary clauses are those designed to directly protect the wages and job opportunities of unit employees covered by the collective-bargaining agreement , where secondary clauses are those directed at furthering general union ob- jectives and which undertake to regulate labor policies of employers other than the employer-signatory . Woodwork Mfrs. Assn. v. NLRB, 366 U.S. 612 (1966). Carpenters Local 944 (Woelke & Romero Framing), 239 NLRB 241 (1978). Thus the threshold question is whether the subcon- tracting clauses involved herein are primary or second- ary. The Board has found union signatory clauses such as are involved here to be secondary in thrust because they are directed at furthering general union objectives and regulating labor policies of employers other than the employer-signatory . Operating Engineers Local 701 (Pacif- ic Northwest Chapter, Associated Builders), 239 NLRB 274 (1978); Woelke & Romero Framing, supra; Carpenters Local 1497 (Donald Schriver, Inc.), 239 NLRB 264 (1978). Similarly, the Board has found to be secondary, clauses such as the guarantee clauses involved here, for essentially the clauses restrict subcontracting to subcon- tractors who agree to pay the wages or fringe benefits provided for in the Joint Agreement and require the em- ployer-signatory to pay any delinquencies. Contrary to Respondent 's contention , this is not a permissible union standards clause intended to preserve the work of the union. A union standards subcontracting clause is pri- mary only if it is limited to a requirement that subcon- tractors observe the equivalent of union wages, hours, etc. The legitimacy of such a clause is determined by the B Sec 8(e) provides that. It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement ; express or im- plied, whereby such employer ceases or refrains or agrees to cease or refrain from handling , using , selling , transporting or otherwise dealing with any of the products of any other employer, or to cease doing business with any other person , and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforceable and void Provided , that nothing in this subsection (e) shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction , alteration , painting , or repair of a building , struc- ture, or other work . Union ' s interest in preventing the undermining of the work opportunities for, and standards of, employees in the unit by subcontractors who do not meet prevailing wages and benefits. Here the contract is not seeking an equivalent econom- ic package . Rather it is dictating the precise allocation of such package . Furthermore , because it has been the con- sistent practice in enforcing this clause, to require an em- ployer-signatory to pay delinquencies only when the sub- contractor does not have a contract with a union affiliate of AFL-CIO Building Construction Trades, it is clear that the clause is not intended to only protect the inter- ests of the unit employees but rather is directed at fur- thering general union objectives and regulating labor policies of employers other than employer -signatories. Furthermore , because the payment of any delinquencies would not inure to the benefit of employees of the sub- contractor and because the required payments include dues, such payments by an employer -signatory would constitute a penalty . Accordingly these guarantee clauses are secondary. Carpenters (D & E Corp.), 243 NLRB 888 (1979); Woelke & Romero Framing, Inc., supra ; Donald Schriver, Inc., supra; Teamsters (California Dump Truck Owners Assn .), 227 NLRB 269 (1976); Painters #48 (Cal- houn Drywall), 153 NLRB 1196 (1965)„9 However , the construction industry proviso to 8(e) privileges subcontracting restrictions as to on -site con- struction work in the context of a bargaining relation- ship. Connell Construction Co. v. Plumbers Local 100, 421 U.S. 616 (1975 ). Charging Party Johnson contends that the clauses at issue herein are not protected by the provi- so because they encompass work which is not on-site and were not "entered into" (as reaffirmed by Respond- ent's claims in arbitration) in the context of a collective- bargaining agreement . I find this argument unpersuasive. The basis of the claim being arbitrated arose in the con- text of a collective-bargaining relationship . Further, even though Johnson admits in its brief that it is not presently signatory to a contract with Respondent , the record does not establish that a collective -bargaining relationship does not still exist. Clearly for purposes herein , Johnson and Respondent are not "strangers." Concerning whether the clauses encompass offsite work, Johnson relies on the literal language of the union signatory clause that it covers all work under the juris- diction of the International Brotherhood of Painters and Allied Trades on a theory that work covered must be limited to a particular jobsite on the testimony of Rich- ards. In this regard, Richards ' testimony is not reliable. From the totality of his testimony, it is clear that he has no knowledge of whether offsite work is involved. The Board has apparently rejected the particular job site ar- gument. Carpenters Local 15 (Metro Lathing), 240 NLRB 255 (1979). The Board has also held that the failure of a 9 The Respondent 's overall argument poses interesting questions about the primary nature of union signatory and guarantee clauses in contracts covering multiemployer units where the clauses essentially are intended to restrict all subcontracting to employer-members of the unit and what is considered the scope of the unit for purposes of determining whether a clause is primary or secondary in nature . However, the facts herein do not support Respondent's argument so this question is not reached 1476 , - ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD contractual provision to be expressly limited to onsite work cannot alone establish that the provision exceeds the limitations of.: the proviso. Carpenters (Disney Roof- ing), 154 NLRB 1598 (1965). Other provisions of the contract would seem to indicate that the contracts cover onsite work. However, the-record is insufficient to estab- lish -the validity of-this argument. Further, the ultimate issues herein'can be resolved without a resolution of this question. Although, standing alone, the clauses involved herein appear to fall within the literal language of the construc- tion industry proviso to Section 8(e),,the General Coun- sel argues that certain "self-help" provisions of the Joint Agreement remove the union signatory and the guaran- tee clauses from the protection of the proviso. Specifical- ly, the three Joint Agreements provide either that Re- spondent may remove its members from any job to en- force the terms of the agreement or to enforce an arbi- tration award arising out of failure to abide by the terms of the agreement. It is well established that a contract provision which is exempt from the proscription of Section 8(e) solely be- cause it falls within the construction industry proviso may be -enforced only through lawsuits and not by threats, coercion, or restraint proscribed by Section 8(b)(4). Coercion has been defined as including concerted self-enforcement such as a strike, picketing, or other eco- nomic retaliation or pressure in a background of a labor dispute and contractual clauses which authorize the use of proscribed measures to enforce secondary subcon- tracting provisions which remove the clauses from the protection of the proviso to Section 8(e). Operating Engi- neers Local 12 (Griffith Co.), 243 NLRB 1121 (1979). Here the language of all three Joint Agreements permit proscribed self-enforcement. The 1977-1980 Agreement was entered into within the Section 10(b) period and by pursuing the Johnson grievance and arbi- tration, Respondent has reentered and enforced the sec- ondary provision of the 1969-1974 and the 1974-1977 Joint Agreements within the 10(b) period. Carpenters (Coast Construction), 242 NLRB 801 (1979). According- ly, I find that by entering into the 1977-1980 Joint Agreement and by reentering into the 1969-1974 and the 1974-1979 Joint Agreement and the Johnson short-form agreements which contravene Section 8(e) by reason of the self-enforcement provisions, Respondent has violated Section 8(e) of the Act. D & E Corp., supra; Coast Con- struction Co., supra; Donald Schriver, supra; Pacific North- west Chapter, Associated Builders, supra. 10 CONCLUSIONS OF LAW 1. William R. Johnson d/b/a Johnson Plastering Co., and each of the Associations named herein as parties to the contract and their employer-members, each is an em- ployer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The 1969-1974, 1974-1977, and 1977- 1980 Joint Agreements between the Associations and Respondent and the short-form collective-bargaining agreements be- tween Johnson and Respondent , which incorporate the terms and conditions of the Joint Agreements , are agree- ments contrary to Section 8(e) of the Act by reason of self-enforcement provisions. 4. By entering into the 1977-1980 Joint Agreement, and by invoking, reaffirming, giving effect to, and reen- tering into the 1969-1974 and the 1974-1977 Joint Agreements and the short -form collective-bargaining agreements with Johnson which incorporated the terms and conditions of the 1969-1974 and the 1974-1977 Joint Agreements, Respondent has violated Section 8 (e) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in an unfair labor practice, we shall order Respondent to cease and desist therefrom and to take certain affirmative action to effectuate the purposes of the Act. i i On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed'2 ORDER The Respondent, Orange Belt District Council of Painters No. 48, AFL-CIO, CLC, its officers, agents, and representatives, shall 1. Cease and desist from (a) Entering into , maintaining , giving effect to, or en- forcing the 1969-1974, the 1974-1977, and the 1977-1980 Joint Agreements between Respondent and the various Associations named herein as parties to the contract and to the short-form collective bargaining agreement be- tween Respondent and William R. Johnson, d/b/a John= son Plastering Co., which incorporate the terms and con- ditions of the 1969-1974 and 1974-1977 Joint Agree- ments, to the extent found unlawful by reason of self-en- forcement provisions. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its business office and meeting halls and mail to its affiliated unions on whose behalf it negotiated the Joint Agreements and short-form collective-bargain- ing agreements herein, copies of the attached notice 10 Subsequent to the expiration of the time for filing briefs herein, Re- spondent submitted two letters in the nature of supplemental briefs As these supplemental briefs were submitted untimely, they were not consid- ered by me Otherwise I have carefully considered all of Respondent's arguments and reject them to the extent they are inconsistent with my findings and conclusions herein 'I The additional remedy sought by General Counsel concerning the Johnson arbitration appears inappropriate. Coast Construction Co, supra. 12 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 PAINTERS ORANGE BELT DISTRICT COUNCIL 48 (PAINTING CONTRACTORS) 1477 marked "Appendix."13 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by Respondent's authorized representative, shall be posted and mailed by it immediately upon re- ceipt and those posted shall be maintained for 60 consec- utive days, in conspicuous places, including all places is 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 Nation- al Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " where notices to members are customarily posted. Rea- sonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Sign and deliver to the Regional Director for Region 21 sufficient copies of the notice, to be furnished by the Regional Director, for posting by Johnson and the Associations party to the Joint Agreements, if will- ing. (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.