Taylor Construction Co.

National Labor Relations Board - Board Decisions

Jul 5, 1977

230 N.L.R.B. 638 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers' International Union of North America,
Local No. 89, AFL-CIO (Harry C. Taylor d/b/a
Taylor Construction Co.) and Sullivan and Associ-
ates. Case 21 -CC- 1753-2
July 5, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On March 1, 1977, Administrative Law Judge
David G. Heilbrun issued the attached Decision in
this proceeding. Thereafter, the Charging Party filed
exceptions combined with a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
brief, and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE'
DAVID G. HEILBRUN, Administrative Law Judge: This
case was heard at San Diego, California, on December 2,
based upon a charge filed May 7 and complaint issued
August 20, alleging that Laborers' International Union of
North America, Local No. 89, AFL-CIO, called Respon-
dent, violated Section 8(b)(4)(ii)(A) of the Act by threaten-
ing, coercing, and restraining Harry C. Taylor d/b/a
Taylor Construction Co., called Taylor, with an object of
forcing or requiring him to enter into an agreement
All dates and named months hereafter are in 1976, unless indicated
otherwise.
2 The transcript is hereby corrected by changing "option" (where
appearing a second time) to "action" at p. 30, 1.24.
3 Taylor, constituted as a single employer with Taylor Construction
Company, Inc., operates in San Diego County, California, as a general
contractor in the building and the construction industry, annually
purchasing and receiving materials valued in excess of $50,000 directly from
suppliers located outside California. I find that Taylor is an employer
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
and a person engaged in commerce or in an industry affecting commerce
within the meaning of Section 8(bX4)(ii)(A). Respondent is a labor
organization within the meaning of Section 2(5) and Section 8(b).
4 Respondent advanced an offer of proof that Dale Yaeger, understood
230 NLRB No. 55
prohibited by Section 8(e). The particular conduct of
Respondent at issue is its action in filing a lawsuit pursuant
to breach-of-contract theory over Taylor's asserted failure
to execute and implement a certain short-form jobsite
agreement.
Upon the entire record,2 my observation of the witnesses,
and consideration of briefs filed by General Counsel and
Respondent, I make the following:
FINDmNGs OF FACT AND CONCLUSION OF LAW
During 1974-75 Taylor constructed a building in
Escondido, California.3 On August 6, 1974, Respondent
issued Jerry Peck a work referral for employment as a
laborer on this job. Peck worked the latter months of 1974
to an extent that Respondent calculated $1446.37 was due
combined benefit funds established under terms of a
master labor agreement effective from June 1974 through
June 1977 and covering San Diego County construction
work.4 Around September 1975 this amount was tendered
by Taylor. 5
On February 23, Respondent filed a civil action in
United States District Court for the Southern District of
California against Taylor's corporate entity. This action
was styled "Complaint for Declaratory Judgment in
Respect to Collective Bargaining Agreement"; alleged that
pertinent oral agreement had been reached in August 1974;
and prayed for judgment requiring that defendant Taylor
execute and be bound by the terms and conditions of the
described collective-bargaining agreement. Taylor has
resisted this action and continues now to decline signing
any agreement with Respondent. In part, the short-form
jobsite agreement reads:
ARTICLE III
B. The Employer agrees that he shall contract or
subcontract all jobsite work only to persons, firms,
partnerships, corporations, or other business organiza-
tions who are party to current executed agreements
with the Union. In the event that any such contractor
or subcontractor fails to pay when due the wages or
fringe benefits provided under the Agreement with the
Union, the Employer shall immediately become liable
for the payment of such delinquent sums, and such
sums shall immediately become due and payable by the
Employer, and the Union may take such lawful
remedial action as it deems appropriate to collect all
such delinquent wages and/or fringe benefits.
by Laborers' Field Representative Ray Stedry to be Taylor's superinten-
dent, offered no objection to the demanded execution of a short-form jobsite
agreement, which included the master labor agreement by reference.
Pursuant to these dealings Respondent corresponded with Taylor, submit-
ting copies of pertinent documents and requesting their execution.
5 It has not been accepted because, as stated by Respondent's counsel
during hearing, Sec. 302 of the Act bars such payment absent written
agreement. This statement of record is consistent with a rejected exhibit
wherein the Benefit Fund's office for construction laborers of San Diego
County advised Taylor by letter dated November 5, 1975, that no penalty
would be sought for late payment of contributions incurred in 1974, but
failure to execute the short-form jobsite agreement would necessitate refund
of the contributed amount.
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LABORERS', LOCAL NO. 89
ARTICLE V
B. It is agreed that in all cases of a claimed
violation, misunderstanding, dispute or difference
regarding the application or interpretation of this
Agreement or the Master Labor Agreement or the
Trust Agreements, in addition to any other lawful
remedy, the Union shall have the right to call or engage
or assist in a strike, shutdown, work stoppage or
withdrawal of services and the Employer shall hame the
right to engage in a lockout.
This case presents quite baldly the question of whether a
lawsuit is coercive when bottomed on a collective-bargain-
ing agreement arguably contrary to Section 8(e). General
Counsel contends the short-form jobsite agreement is
violative on its face through extension of "self-help"
powers to Respondent and otherwise by application of
rationale contained in Connell Construction Co., Inc. v.
Plumbers & Steamfitters, Local Union No. 100, 421 U.S. 616
(1975). This latter branch of General Counsel's argument
hinges on whether a "signatory" subcontracting clause is
necessarily outside the construction industry proviso to
Section 8(e) if not expressly limited to times when the
employer involved employs, or is to employ, craftworkers
within the contracting trade union's geographical jurisdic-
tion.
I find no merit in General Counsel's overall position. As
it might pertain to this case, Connell holds only that
subcontracting agreements with "stranger" contractors
would, in appropriate instances, remove the shield of
Section 8(e)'s first proviso. Here Taylor is not in that sense
the "stranger" to Respondent, as in fact he employed the
craft for which Respondent exists to represent and has
allegedly entered into a collective-bargaining agreement
covering the wages and working conditions for such
employees. This contrasts fully with the situation of
plaintiff-appellant Connell Construction Co., a general
building contractor not employing any persons for "plumb-
ing and mechanical work." Connell, supra at 619, 631-632.
In this regard Respondent correctly notes that the language
in question from article V, section B literally retains
recourse ("lawful remedy") to Respondent "other" than
self-help. See Muskegon Bricklayers Union No. 5, 152
NLRB 360(1965).
However, a far more significant reason is present on
which to find for Respondent. The lawsuit, irrespective of
motivation for its filing, is simply not coercive within the
6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
meaning of Section 8(bX4Xii). The Board has consistently
held that by refraining from nonjudicial acts of self-help a
labor organization may successfully avoid the claim of
coerciveness and that "judicial action [is not] self-help."
Sheet Metal Workers, Intl. Assn., Local Union No. 49, 206
NLRB 473 (1973); Ets-Hokin Corporation, 154 NLRB 839,
enfd. sub nom. International Brotherhood of Electrical
Workers, AFL-CIO, and Local No. 769, 405 F.2d 159 (C.A.
9, 1968). Here, Respondent presents an arguable claim that
repudiation of the short-form jobsite agreement occurred,
warranting a remedial court declaration in its favor. Such
limited strategy insulates it from a finding of having dealt
impermissibly with Taylor under these circumstances. Cf.
Heavy, Highway, Building and Construction Teamsters
Committee for Northern California (Calif Dump Truck
Owners Assn.), 227 NLRB 269 (1976); Retail Clerks Union
Local 770 (Hughes Markets, Inc), 218 NLRB 680 (1975);
Southern California Pipe Trades District Council No. 16, 207
NLRB 698 (reaffirmed in Sheet Metal Workers Intl. Assn.,
Local 28, AFL-CIO, 222 NLRB 727 (1976), notwithstand-
ing acceptance of court remand sub nom. Associated
General Contractors of Calif, Inc., 514 F.2d 433 (C.A. 9,
1975), and issuance of Supplemental Decision at 219
NLRB 323); La Mirada Trucking, Inc. v. Teamsters Local
Union 166, IBT, 538 F.2d 286 (C.A. 9, 1976).
Overall, I find the Board's recent decisions in Los
Angeles Building & Construction Trades Council, AFL-CIO
(Noble Electric), 217 NLRB 946 (1975), and International
Union of Operating Engineers, Local Union No. 12 (Robert
E. Fulton), 220 NLRB 530 (1975), dispositive of the entire
case. There, an assertedly breached (whether contractual
relationship was admittedly present or not) subcontracting
clause was permitted enforcement where "only by law-
suit[s ," and attempted establishment of an unlawful
interpretation to a subcontracting agreement was "not
sufficient to taint the lawsuit with illegality," even where
exemplary damages were sought. Noble Electric, supra at
948; Fulton, supra at 538. On this basis the bland effort
merely to obtain declaration of contractual rights can
hardly be unlawful. See also Clyde Taylor Company, 127
NLRB 103 (1960).
Accordingly, I render a conclusion of law that Respon-
dent has not violated Section 8(bX4XiiXA) as alleged and
issue the following recommended:
ORDER 6
The complaint is dismissed in its entirety.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order. and all objections thereto shall be
deemed waived for all purposes.
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