Sheet Metal Workers Local 17

National Labor Relations Board - Board Decisions

Apr 16, 1979

241 N.L.R.B. 880 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers' International Association Local
17, R.I. Area and Planair Sheet Metal Company,
Inc. Case I-CE-43
April 16, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
Upon a charge filed by Planair Sheet Metal Com-
pany, Inc. (herein called Plainair), and duly served on
Sheet Metal Workers' International Association Lo-
cal 17, R.I. Area (herein called Union), the General
Counsel of the National Labor Relations Board, act-
ing through the Regional Director for Region , on
March 10, 1977, issued and served on the Union a
complaint and notice of hearing. The complaint al-
leged that the Union and Planair have entered into an
agreement containing two subcontracting clauses and
an enforcement provision which violate Section 8(e)
of the National Labor Relations Act, as amended. On
April 4, 1977, the Union duly filed an answer in
which it denied the comission of any unfair labor
practices.
Thereafter, on March 19 and 20 and May 23, 1978,
Planair, the Union, and counsel for the General
Counsel, respectively, executed a stipulation of facts
and a motion to transfer the proceedings to the Board
wherein they agreed that the charge, the complaint
and notice of hearing, the answer, and the stipulation
of facts, including the exhibits attached thereto, con-
stitute the entire record in this case, and that no oral
testimony is necessary or desired by any of the par-
ties. The parties further stipulated that they waive a
hearing before an Administrative Law Judge, the
making of findings of fact and conclusions of law by
an Administrative Law Judge, and the issuance of an
Administrative Law Judge's Decision, and desire to
submit this case for findings of fact, conclusions of
law, and a Decision and Order directly to the Board.
On August 2, 1978, the Board issued an order ap-
proving the stipulation and transferring the proceed-
ing to the Board and set a date for the filing of briefs.
Thereafter, Respondent Union filed a brief. No briefs
were filed by Planair or the General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record herein
as stipulated by the parties and hereby makes the fol-
lowing findings and conclusions:
I. THE BUSINESS OF THE EMPLOYER
Planair, with a place of business located in Provi-
dence, Rhode Island, is engaged in both the fabrica-
tion and installation of sheet metal. In the course and
conduct of its business it sells and purchases large
quantities of sheet metal which are transported to and
from various places located outside the State of
Rhode Island. In this regard Planair annually re-
ceives from suppliers located outside the State of
Rhode Island sheet metal and other products valued
in excess of $50,000. Accordingly, the parties stipu-
lated, and we find, that Planair is and has been at all
times material herein an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Sheet Met-
al Workers' International Association Local 17, R.I.
area, is and at all times material herein has been a
labor organization within the meaning of Section 2(5)
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Is the subcontracting clause, article II, section I,
contained in the Union's collective-bargaining agree-
ment with Planair, proscribed by the general provi-
sion of Section 8(e) of the Act and, if so, is the clause
privileged by the first proviso thereto?
2. If lawful by itself, does the subcontracting
clause set forth in article II, section I, when read in
conjunction with the enforcement provision in article
II, section II, violate Section 8(e) of the Act?
3. Is the subcontracting clause set forth in article
II, section III, which is contained in the Union's col-
lective-bargaining agreement with Planair, proscribed
by Section 8(e) of the Act?
B. The Stipulated Facts
On July 1, 1976, Planair and the Union entered
into a collective-bargaining agreement which, inter
alia, contained the following provisions limiting Plan-
air's right to subcontract work ordinarily performed
by its employees at a construction site:
Article II:
SECTION I. No Employer shall subcontract or
assign any of the work described herein which is
to be performed at a job site to any contractor,
241 NLRB No. 127
880
SHEET METAL WORKERS' INTL. ASSN., LOCAL 17
subcontractor or other person or parties who
fails to agree in writing to comply with the con-
ditions of employment contained herein includ-
ing, without limitations, those relating to union
security, rates of pay and working conditions,
hiring and other matters covered hereby for the
duration of the project.
SECTION II. Whenever the employer has
breached the obligation contained in this Article
II, the matter shall be handled as a grievance in
accordance with the provisions of Article X of
this agreement. Damages equivalent to the num-
ber of hours of work at the applicable hourly,
including all fringe benefits, rate lost by employ-
ees who would have performed the sheet metal
work had the employer not violated Article II,
Section I, shall be assessed against the employer.
Whenever a violation of this section shall be es-
tablished, such damages when assessed and not
paid within thirty (30) days after the final and
binding decision has been issued shall be recov-
erable by suit instituted under Section 301 of the
Taft-Hartley Act (29 USC 185) in the appropri-
ate United States District Court of Rhode Island.
SECTION III. Subject to other applicable provi-
sions of this Agreement, the Employer agrees
that when subcontracting for prefabrication of
materials covered herein, such prefabrication
shall be subcontracted to fabricators who pay
their employees engaged in such fabrication no
less than the prevailing wage for comparable
sheet metal fabrication, as established under pro-
visions of this agreement.
The parties further stipulated that Planair has at all
times material herein been a union employer, em-
ploys members of the Union, and intends to continue
this practice in the foreseeable future.
C. Contentions of the Parties
As noted above, Planair filed a charge and counsel
for the General Counsel issued a complaint alleging
that the above-quoted subcontracting clauses, along
with the enforcement provision with respect thereto,
violate Section 8(e) of the Act in that, by agreeing to
such provisions, Planair and the Union have agreed
to cease and refrain from handling, using, selling,
transporting, or otherwise doing business with other
persons.' The Union, on the other hand, contends
that the subcontracting provisions are not in violation
of Section 8(e) because they have the primary objec-
tive of preserving traditional unit work for those em-
I As noted above, neither Planair nor counsel for the General Counsel filed
briefs in support of this allegation.
ployees who customarily work for Planair. Alterna-
tively, the Union argues that even if the provisions in
issue are deemed secondary in nature they are privi-
leged by the construction industry proviso to Section
8(e). In this latter regard the Union contends that the
Supreme Court's decision in Connell Construction Co.,
Inc. v. Plumbers & Steamfitters Local Union No. 100,
United Association of Journeymen & Apprentices of the
Plumbing & Pipefitting Industry of the United States
and Canada, AFL-CIO, 421 U.S. 616 (1975), does not
support the finding of a violation herein for, unlike
the facts in that case, Planair and the Union have a
lawful collective-bargaining relationship and the sub-
contracting clauses at issue herein were negotiated in
the context of that relationship.
D. Discussion and Conclusions
Section 8(e) of the Act makes it unlawful for a la-
bor organization and an employer to enter into a con-
tract in which the employer agrees to refrain from
dealing in the product of another employer or to
cease doing business with any other person. However,
it has long been settled that contract clauses which
may technically fall within the literal proscription of
Section 8(e) are not unlawful if the clause is found to
be primary in nature, i.e., one designed to preserve
unit work or maintain economic standards on the job
at which unit members work.2 Futhermore, in case
such as this where the relevant clauses deal with the
subcontracting of work at a construction site, such
clauses, even if secondary in nature, may be privi-
leged by the construction industry proviso to Section
8(e) of the Act.
Here at issue are three contract provisions, two of
which limit the ability of Planair to subcontract work
at the site of construction and a third which governs
the enforcement of the two subcontracting provisions
in the event such clauses are violated. The first clause,
article II, section I, requires Planair to restrict its sub-
contracting of work done at the construction site to
employers who agree to comply with all employment
conditions set forth in the collective-bargaining agree-
ment between Planair and the Union, including those
provisions dealing with union security and the hiring
hall. In essence, therefore, in requiring the subcon-
tractors to agree to all terms of the contract between
Plainair and the Union, section I of article II acts to
require a subcontracting employer to be signatory to
that agreement. Such clauses have long been held by
both the Board and the courts to be secondary in
2 See, e.g., National Woodwork Manufacturers Association v. N.L R. B.. 386
U.S. 612 (1967); Heavy, Highway, Building and Construction Teansters Com-
mrrtteefor Northern Calihfornia (California Dump Truck Owners Associaion),
227 NLRB 269, 272 (1976) (then-Member Fanning and Member Jenkins
dissenting in part).
881
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nature "because ... [they are] not concerned primar-
ily with the labor relations of the contracting em-
ployer, in this case [Planair], but with the labor rela-
tions of other employers with whom [Plainair] might
do business."3 Thus, these clauses have been found
unlawful except when priviledged by the construction
industry proviso. Nevertheless, the Union here argues
that although article II, section I, reads as a classic
union signatory clause, such clauses, in the context of
the construction industry are primary in nature as
they are designed to preserve unit work. The Union's
argument, in effect, asks us to interpret the phrase
"unit work" as encompassing, at the very least, all
work which the employees whom the Union repre-
sents could perform at the construction site, and that
we should construe the phrase "unit employees" to
include all employees within the labor pool who are
available to Planair to perform such work through the
Union's hiring hall. The Union suggests that such an
interpretation of these phrases would more realisti-
cally take into account the unique characteristics of
the construction industry, which Congress fully un-
derstood and recognized when it enacted the 1959
amendments dealing with this industry.4
We find it unnecessary to resolve this matter in the
instant case. This is so because we find that article II,
section I, of the collective-bargaining agreement be-
tween Planair and the Union is in any event permit-
ted by the construction industry proviso to Section
8(e) of the Act. In this regard, we have recently con-
sidered a series of cases examining the scope of the
construction industry proviso in light of the Supreme
Court's decision in Connell Construction Company,
Inc. v. Plumbers Steamfitters Local Union No. 100,
supra.5 In each of these cases, we concluded that the
Connell decision construed the construction industry
proviso to permit union signatory subcontracting
clauses which arise in the context of a collective-bar-
gaining relationship.6 As the clause set forth in article
3 Carpenters Local No. 944, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO (Woelke & Romero Framing, Inc.), 239 NLRB 241
(1978); see also General Teamsters, Chauffeurs, Warehousemen and Helpers,
Local 982, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America (J. K. Barker Trucking Co.), 181 NLRB 515,
519-520 (1970).
4 The Union particularly emphasizes that, from the perspective of the unit
employees, an employer to whom Planair could subcontract unit work is not
technically a different employer from Planair, Cf. Interstate Electric Com-
pany, 227 NLRB 1996, 1998 (1977). where the Board, in interpreting Sec.
8(f)(4), held that the concept of "employer" in the construction industry
applies more generally to all contracting employers working under the same
labor agreement.
Woelke d Romero Framing, Inc., supra, Colorado Buildings & Construc-
tion Trades Council (Utilities Services Engineering, Inc.), 239 NLRB 253
(1978); Los Angeles Building and Construction Trades Counsel, and Local
Union No. 1497, United Brotherhood of Carpenters and Joiners of America
(Donald Schriver, Inc, and Sullivan-Kelley and Associates), 239 NLRB 264
(1978); International Union of Operating Engineers, Local No. 701, AFL-
CIO; Oregon-Columbia Chapter, The Associated General Contractors of
America, Inc., (Pacific Northwest Chapter of the Associated Builders & Con-
tractors, Inc.), 239 NLRB 274 (1978).
Aid.
II, section 1, was negotiated in the context of the bar-
gaining relationship between Planair and the Union,
this clause is, therefore, privileged by the proviso and
is not violative of Section 8(e).
Having determined that article II, section I, is not
in itself unlawful, there remains to be considered
whether this provision is nevertheless rendered un-
lawful by the enforcement provision set forth in arti-
cle II, section II1. This latter section allows the Union
to treat a breach of section I as a grievance in accord-
ance with the grievance procedures set forth in the
contract and entitles the Union to recover damages,
such as loss of pay or benefits by unit employees,
which may be caused by any improper subcontract-
ing. In the event Planair should fail to pay such dam-
ages, section II further provides that the Union has
the right to institute an action in Federal court under
Section 301 of the National Labor Relations Act, as
amended. Upon examining this enforcement provi-
sion, we are at a loss to understand how this provision
could possibly be interpreted to render the subcon-
tracting clause in section I unlawful. While secondary
clauses privileged by the construction industry pro-
viso to Section 8(e) of the Act cannot lawfully be
enforced by self-help measures-such as picketing,
threats, restraint, or coercion prohibited by Section
8(bX4)-the legality of clauses which provide for en-
forcement by judicial means has never been ques-
tioned.7 Here, section II entitles the Union to do
nothing more than treat a breach of section I as a
grievance and, if necessary, pursue the matter in Fed-
eral court. Accordingly, we find that article II, section
I, even when considered in light of the enforcement
provision in article II, section II, does not violate Sec-
tion 8(e) of the Act.
Planair's ability to subcontract work is also re-
stricted by article II, section III. Be this provision
Planair has agreed not to subcontract for prefabrica-
tion of materials to any employer who fails to pay its
employees the prevailing wage for comparable sheet
metal fabrication. We find this clause to be clearly
lawful as it has a primary, not secondary, object. To
this end, Planair cannot subcontract unit work-the
fabrication of sheet metal-to any employer who fails
to pay the prevailing wage for comparable sheet met-
al fabrication. Such a clause, often referred to as a
union standards clause, is primarily designed to bene-
fit the employees in the unit, i.e., it prevents the un-
dermining of work opportunities for the unit employ-
ees by removing the economic inducement for Planair
to subcontract for prefabrication of sheet metal more
' See, e.g., Donald Schriver, Inc. and Sullivan-Kelley and Associates, supra,
Pacific Northwest Chapter of the Associated Builders & Contractors, Inc., su-
pra.
882
SHEET METAL WORKERS' INTL. ASSN., LOCAL 17
cheaply.8 Accordingly, article II, section III, of the
contract between Planair and the Union does not vio-
late Section 8(e) of the Act.
CONCILUSIONS OF LAW
1. Planair Sheet Metal Company, Inc., is an em-
ployer within the meaning of the Act, engaged in
commerce and in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
I See, e.g., California Dump Truck Owners Association, supra, General
Teamsters Local 386, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Construction Materials Trucking
Inc.). 198 NLRB 1038 (1972).
2. Sheet Metal Workers' International Association
Local 17, R.l. area, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The provisions of article II of the collective-bar-
gaining agreement between Planair and the Union,
set forth above, do not violate Section 8(e) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
883