Teamsters Local 282 (E.G. Clemente Contracting)

National Labor Relations Board - Board Decisions

Sep 24, 2001

335 N.L.R.B. 1253 (N.L.R.B. 2001)

TEAMSTERS LOCAL 282 (E.G. CLEMENTE CONTRACTING) 1253
Local 282, International Brotherhood of Teamsters,
AFL–CIO and E.G. Clemente Contracting
Corp. Case 29–CB–10969
September 24, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN, TRUESDALE, AND WALSH
On June 21, 2000, Administrative Law Judge Margaret
M. Kern issued the attached decision. The Respondent
filed exceptions and a supporting brief. The Charging
Party filed an answering brief, to which the Respondent
filed a reply brief. The Charging Party filed limited
cross-exceptions and a supporting brief, the Respondent
filed an answering brief, and the Charging Party filed a
reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions,
cross-exceptions, and briefs and has decided to affirm the
judge’s rulings, findings,1 and conclusions only to the
extent consistent with this Decision and Order.
The main issue presented in this proceeding is whether
Local 282, International Brotherhood of Teamsters,
AFL–CIO (the Respondent) violated Section 8(b)(1)(B)
or (3) by striking E.G. Clemente Contracting Corp.
(Clemente or the Employer) in support of the Respon-
dent’s demand that Clemente accept a contract contain-
ing the same provisions as the Respondent’s contract
with a multiemployer association. We find, contrary to
the judge, that the Respondent did not violate Section
8(b)(1)(B) or (3) as alleged. We shall accordingly dis-
miss the complaint.
I. FACTUAL BACKGROUND
The Respondent is the collective-bargaining represen-
tative of a unit composed of Clemente’s automobile
chauffeurs, euclid operators, and turnapull operators.
Every 3 years, the Respondent negotiates with a mul-
tiemployer bargaining association known as the General
Contractors Association (the GCA) for an industrywide
agreement in the New York City Heavy Construction &
Excavating industry. The most recent collective-
bargaining agreement between the Respondent and the
GCA is effective from July 1, 1999, until June 30, 2002.
Clemente has followed the practice of signing the
GCA-Respondent agreement after negotiations between
the GCA and the Respondent are completed. Clemente
thus executed the previous GCA-Respondent agreement,
effective from July 1, 1996, to June 30, 1999, and abided
by its terms. Clemente has never been a member of the
GCA, however, or executed an agreement binding it in
advance to the outcome of the GCA-Respondent negotia-
tions.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
On April 1, 1999,2 the Respondent gave notice to all of
the signatories of the 1996–1999 GCA-Respondent
agreement, including Clemente, of the impending expira-
tion of that agreement, and the Respondent’s intention to
seek modification of the agreement. The Respondent
and the GCA thereafter engaged in negotiations for a
successor contract and on June 3 they entered into a new
agreement effective from July 1, 1999, to June 30, 2002.
The new agreement consisted of the prior agreement,
along with a nine-page memorandum of agreement ex-
tending the terms of the prior agreement subject to sev-
eral modifications.
In mid-June, the Respondent sent a copy of the 1999–
2002 memorandum of agreement to all signatories to the
previous agreement, including those, like Clemente, who
are not members of the GCA. Consistent with the par-
ties’ past practice, the Respondent requested that
Clemente sign the memorandum of agreement as an in-
dependent employer, not as a member of the GCA. The
Respondent made the same request to other signatory
employers who are not GCA members.
The Employer’s president, Garry Clemente, subse-
quently met with the Respondent’s business agent, Law-
rence Kudla, and complained about his inability to com-
pete with nonunion contractors who perform private
sector work.3 He explained to Kudla that the Respondent
had to organize the nonunion contractors in order for
Clemente to compete for private sector work, and sought
wage relief from the terms of the 1999–2002 memoran-
dum of agreement. Kudla responded that he could not
deviate from the 1999–2002 contract and that Clemente
would “live and die” by the contract.
On July 29, the parties met for their only bargaining
session. The Employer stated that it wanted to expand its
business into the private sector market, but was unable to
compete with nonunion contractors. It accordingly
sought a two-tiered wage scale with a lower rate for pri-
vate sector jobs, and relief from the 8-hour work guaran-
tee so that it would only be obligated to pay employees
for hours actually worked. The Respondent explained its
difficulty in organizing the nonunion contractors. The
Respondent further explained that the terms of the 1999–
2 All dates hereafter are in 1999 unless otherwise noted.
3 The Employer’s business consists entirely of public sector work.
335 NLRB No. 98
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1254
2002 memorandum of agreement could not be varied for
Clemente because of the applicability of a most favored
nations’ clause. The Respondent remained adamant in
favor of the terms set forth in the memorandum of
agreement, and warned that it could take economic action
against Clemente in support of those terms. According
to the credited testimony, the Respondent stated that the
Employer’s goal of obtaining more favorable terms
“would never happen.”
On August 9, the Respondent commenced picketing at
Clemente’s yard facility in support of its contract de-
mands. The strike continued until August 11, at which
time Clemente signed the memorandum of agreement.
II. THE JUDGE’S DECISION
The judge found that the purpose of the strike was to
compel Clemente to execute the 1999–2002 memoran-
dum of agreement. The judge concluded that by that
conduct the Respondent compelled Clemente to be
bound by an agreement negotiated by a multiemployer
association to which it does not belong, and thereby co-
erced Clemente to select the multiemployer association
as its collective-bargaining representative in violation of
Section 8(b)(1)(B) of the Act. The judge found further
that the Respondent’s conduct violated Section 8(b)(3) of
the Act by forcing the Employer to agree to a nonmanda-
tory subject of bargaining (the designation of the mul-
tiemployer association as its bargaining representative)
and by forcing the Employer to be bound by the associa-
tion agreement.
III. POSITIONS OF THE PARTIES
In its exceptions, the Respondent argues that there is
nothing unlawful about a union seeking to establish and
maintain the same terms and conditions for all employees
within an industry. As long as a union is willing to nego-
tiate in good faith, the Respondent asserts, the union may
resort to economic action in support of its goal of uni-
formity.
Although otherwise in agreement with the judge’s de-
cision, the Employer has filed cross-exceptions to the
judge’s failure to find that the Respondent’s conduct at
the July 29 bargaining session constituted a violation of
Section 8(b)(1)(B) and (3). The Employer argues that
this issue is closely connected to the subject matter of the
complaint and was fully litigated.
Discussion
1. Before discussing the issues before us, it is impor-
tant to identify an issue that this case does not present.
Specifically, the General Counsel is not alleging that the
Respondent bargained in bad faith with the Employer
prior to the August 9 strike. In other words, the General
Counsel is not claiming that the Respondent’s conduct at
the July 29 negotiation session constituted unlawful
“take it or leave it” bargaining in violation of Section
8(b)(3). Indeed, at the hearing, the General Counsel spe-
cifically disavowed any such allegation, stating: “What
we are alleging in our complaint is that the strike was
illegal, not that what occurred in the negotiation session
on July 29th was illegal. We are not alleging that what
occurred on July 29th was unlawful.”
As the judge correctly recognized, the “General Coun-
sel, not the Charging Party, determines the theory of the
case.” Operating Engineers Local 12 (Sequoia Con-
struction), 298 NLRB 657 fn. 1 (1990). Recently, in
GPS Terminal Services, 333 NLRB 968 (2001), the
Board held that a judge has no authority to amend the
complaint in a manner that was “neither sought nor con-
sented to by the General Counsel,” even where “the re-
cord evidence would support the additional allegations.”
Id., at 969.
Applying these principles here, we find that, in light of
the General Counsel’s comment on the record that he
was not “alleging that what occurred on July 29th was
unlawful,” the judge correctly declined to consider the
Charging Party’s argument that the Respondent’s con-
duct at the July 29 bargaining session violated Section
8(b)(1)(B) and (3). Further, due to the General Coun-
sel’s disavowal of the Charging Party’s theory at the
hearing, we cannot say that the additional violations the
Charging Party seeks were fully and fairly litigated. For
these reasons, we find no merit in the Charging Party’s
exceptions.
2. We now turn to the question of whether the Re-
spondent violated Section 8(b)(3) by engaging in a strike
against the Employer from August 9 through 11. The
relevant principles are well established.
Section 8(b)(3) of the Act makes it an unfair labor
practice for a labor organization “to refuse to bargain
collectively with an employer.” Section 8(d) defines the
phrase “to bargain collectively” as “the mutual obligation
. . . to meet at reasonable times and confer in good faith
with respect to wages, hours, and other terms and condi-
tions of employment . . . but such obligation does not
compel either party to agree to a proposal or require the
making of a concession.”
Good-faith bargaining “presupposes a desire to reach
ultimate agreement, to enter into a collective bargaining
contract.” NLRB v. Insurance Workers, 361 U.S. 477,
485 (1960). However, a “refusal to bargain cannot be
equated with [a] refusal to recede from an announced
position advanced and maintained in good faith.”
Church Point Wholesale Grocery Co., 215 NLRB 500,
502 (1974), petition denied sub nom. Oil Workers v.
NLRB, 538 F.2d 1199 (5th Cir. 1976). Although the
TEAMSTERS LOCAL 282 (E.G. CLEMENTE CONTRACTING) 1255
Board does not evaluate whether particular proposals are
acceptable or unacceptable, the Board “[will] examine
proposals when appropriate and consider whether, on the
basis of objective factors, a demand is clearly designed to
frustrate agreement on a collective-bargaining contract.”
Reichhold Chemicals, 288 NLRB 69 (1988), affirmed in
relevant part sub nom. Teamsters Local 515 v. NLRB,
906 F.2d 719 (D.C. Cir. 1990), cert. denied 498 U.S.
1053 (1991). To determine whether a party has bar-
gained in good faith, “[i]t is necessary to scrutinize [the
party’s] overall conduct.” Atlanta Hilton & Tower, 271
NLRB 1600, 1603 (1984).
In this case, however, the General Counsel has es-
chewed a totality-of-circumstances approach and has
focused narrowly on the Respondent’s August 9 decision
to strike the Employer. In light of this temporal limita-
tion, we find that the record evidence is plainly insuffi-
cient to support a finding of bad-faith bargaining in vio-
lation of Section 8(b)(3). We disagree with the judge’s
reasoning that because the parties were in the midst of
negotiations when the strike was called, the Respondent
necessarily must have had no interest in bargaining in
good faith with the Employer. The Supreme Court made
it clear in Insurance Workers that “[t]he use of economic
pressure . . . is of itself not at all inconsistent with the
duty of bargaining in good faith.” 361 U.S. at 490–491.
A union’s exercise of the strike weapon during negotia-
tions is “part and parcel” of the system of collective bar-
gaining. Id. at 489. Accordingly, contrary to the judge,
we will not infer bad faith simply because the Respon-
dent struck in support of its bargaining demands.
To be sure, the judge found, and we agree, that “the
credible evidence establishes overwhelmingly that the
purpose of the strike was to compel the Employer to exe-
cute the 1999–2002 GCA agreement.” It is well-
established, however, that “a union may adopt a uniform
wage policy and seek vigorously to implement” it among
several employers in an area, and otherwise legitimately
can strive “to obtain uniformity of labor standards[.]”
Mine Workers v. Pennington, 381 U.S. 657, 665–666 and
fn. 2 (1965).4 As the Supreme Court has declared:

We have said that a union may make wage agreements
with a multiemployer bargaining unit and may in pur-
suance of its own union interests seek to obtain the
same terms from other employers. [381 U.S. at 665.]

4 See, e.g., Roadway Package System, 292 NLRB 376, 427 (1989),
affd. mem. 902 F.2d 34 (6th Cir. 1990); Graphic Communications
Local 280 (James H. Barry Co.), 235 NLRB 1084, 1095 fn. 43 (1978),
enfd. 596 F.2d 904 (9th Cir. 1979); Teamsters Local 301 (Merchants
Moving & Storage), 210 NLRB 783, 787 (1974).
The Respondent’s conduct at issue in this proceeding falls
squarely within this principle. The record shows that the
Respondent reached agreement with the GCA multiem-
ployer bargaining association and was seeking to obtain
those same terms from Clemente and other employers in the
industry.
In its answering brief, the Employer acknowledges that
“the Union has the legitimate right to seek for its mem-
bers the same terms and conditions that were negotiated
under the area-wide GCA agreement.” The Employer
argues that the “crux of the case” is that the Union did
not just strive for uniform terms, “but rather had made up
its mind prior to and during negotiations that it would
require the Employer to accept the same terms that the
Union negotiated with the GCA.” The flaw in the Em-
ployer’s argument is that the complaint does not place in
issue the totality of the Respondent’s conduct “prior to
and during negotiations.” Instead, the gravamen of the
General Counsel’s complaint is that the Respondent en-
gaged in unlawful conduct by striking to obtain from the
Employer the substantive terms contained in the 1999–
2002 GCA agreement. Under the precedent cited above,
however, the Respondent’s resort to economic action for
the purpose of obtaining uniformity in industrywide em-
ployment terms does not, without more, amount to a re-
fusal to bargain in good faith. Accordingly, we shall
dismiss the complaint insofar as it alleges a violation of
Section 8(b)(3).
3. The final issue before us is whether the judge cor-
rectly found that the Respondent coerced the Employer
to select the multiemployer association as its collective-
bargaining representative in violation of Section
8(b)(1)(B).
This case is governed by the principles established in
Teamsters Local 705 (Kankakee-Iroquois), 274 NLRB
1176 (1985), petition for review denied sub nom.
Kankakee-Iroquois County Employers’ Assn. v. NLRB,
825 F.2d 1091 (7th Cir. 1987). In that case, the com-
plaint alleged that the union violated Section 8(b)(1)(B)
by insisting that multiemployer association “A” agree to
terms and conditions of employment that the union nego-
tiated with multiemployer association “B.” In agree-
ment with the judge, the Board found that the union’s
conduct did not violate Section 8(b)(1)(B). Citing, inter
alia, the Supreme Court’s decision in Florida Power &
Light Co. v. Electrical Workers Local 641, 417 U.S. 790,
798 (1974), the Board held that Section 8(b)(1)(B) gen-
erally “has been treated as a prohibition against a union
coercing an employer into foregoing the employer’s
choice of its representatives for future collective bargain-
ing.” (Emphasis in original.) 274 NLRB at 1180. In
Kankakee-Iroquois, there was no evidence that the union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1256
insisted that multiemployer association “A” make mul-
tiemployer association “B” its representative for future
collective bargaining. Rather, the record showed only
that the union demanded that multiemployer association
“A” agree to the same economic terms that multiem-
ployer association “B” had agreed to. In these circum-
stances, the Board concluded, the proper inquiry is
whether the union complied with its duty to bargain in
good faith with multiemployer association “A”; to hold
that the union’s conduct violated Section 8(b)(1)(B)
“would extend the scope of Section 8(b)(1)(B) beyond
Congress’ purpose while adding nothing to the Board’s
power to police collective-bargaining relationships
(given the fact that Section 8(b)(3) covers the situation at
hand).” Id.
The Seventh Circuit affirmed the Board’s dismissal of
the 8(b)(1)(B) complaint. The court reasoned as follows:

In Florida Power & Light Co. v. International
Brotherhood of Electrical Workers, Local 641, 417
U.S. 790, 803, 94 S.Ct. 2737, 2743, 41 L.Ed.2d 477
(1974), the U.S. Supreme Court explained that the
“specific concern of Congress [in enacting section
8(b)(1)(B)] was to prevent unions from trying to
force employers into or out of multi-employer bar-
gaining units.” Thus, section 8(b)(1)(B) proscribes a
union from coercing an employer into accepting a
particular bargaining representative, but does not
preclude a union from bargaining aggressively with
an individual employer over the terms of a union
contract even where the contract the union is bar-
gaining for is substantially similar to the contract the
union previously negotiated with a multi-employer
bargaining unit. [825 F.2d at 1095.] [Emphasis in
original.]

Accordingly, the court held that the union did not violate
Section 8(b)(1)(B). The court emphasized that the union
“only insisted that [multiemployer association “A”] accept a
contract containing the same provisions as [the union’s]
contract with [multiemployer association “B”] and did not
pressure [multiemployer association “A”] into selecting a
particular bargaining representative.” Id. In sum, the court
concluded an 8(b)(1)(B) violation had not been established
because “the statute, on its face, . . . does not prohibit unions
from seeking agreements substantially similar to those that
they have already negotiated with other employers.” Id.
Applying the principles of Kankakee-Iroquois to the
facts of this case, we reverse the judge and find that the
Respondent did not violate Section 8(b)(1)(B). Here, as
in Kankakee-Iroquois, there is no evidence that the Re-
spondent insisted that the Employer make the GCA its
representative for purposes of future collective bargain-
ing. Rather, the record shows only that the Respondent
insisted that the Employer accept a contract containing
the same provisions as the contract the Union previously
negotiated with GCA. Because Section 8(b)(1)(B) “does
not prohibit unions from seeking agreements substan-
tially similar to those that they have already negotiated
with other employers,” Kankakee-Iroquois, supra, 825
F.2d at 1095, we shall dismiss this complaint allegation.
In concluding that the Respondent violated Section
8(B)(1)(B), the judge relied on three cases. The oldest of
these cases, Retail Clerks Local 770 (Fine’s Food Co.),
228 NLRB 1166 (1977), is consistent with the principles
of Kankakee-Iroquois discussed above but is easily dis-
tinquishable from this case. In Fine’s Food, the union,
by threatening a strike, compelled the independent em-
ployer to sign an interim agreement that bound the em-
ployer to any agreement thereafter negotiated between
the union and a multiemployer association. In other
words, in Fine’s Food, unlike Kankakee-Iroquois and
this case, the union coerced the employer to agree to be
bound by the terms of a future collective-bargaining
agreement to be negotiated by a multiemployer associa-
tion to which the employer did not belong. In those cir-
cumstances, the Board concluded that the union had
forced the employer to designate the multiemployer as-
sociation as its collective-bargaining representative in
violation of Section 8(b)(1)(B). Here, in contrast, the
multiemployer association agreement had already been
negotiated at the time the Respondent insisted that the
Employer sign it.
The other two cases cited by the judge are not so easily
distinguished. See Commercial Workers Local 1439
(Food City West), 262 NLRB 309 (1982); Laborers Lo-
cal 652 (Thoner & Birmingham Construction Corp.),
238 NLRB 1456 (1978). In Food City West and Thoner
& Birmingham, the unions, by threatening to strike, strik-
ing, or picketing sought to compel independent employ-
ers to agree to contracts that the unions had already nego-
tiated with multiemployer associations. In both cases,
the Board concluded that the “effect” of the unions’ con-
duct was to coerce the employers to select the multiem-
ployer associations as their collective-bargaining repre-
sentatives in violation of Section 8(b)(1)(B).
In Kankakee-Iroquois, the Board referred to these two
cases as “exceptions” to the general rule that Section
8(b)(1)(B) is a “prohibition against a union coercing an
employer into foregoing the employer’s choice of its
representatives for future collective-bargaining.” 274
NLRB at 1180. (Emphasis in original.) In a footnote, the
Board attempted to distinguish the two cases on their
particular facts. Id. at fn. 12. We are no longer con-
vinced, however, that there is any principled basis on
TEAMSTERS LOCAL 282 (E.G. CLEMENTE CONTRACTING) 1257
which the decisions can be reconciled with the general
rule the Board enunciated in Kankakee-Iroquois. In ad-
dition, we have taken into account the fact that Food City
West and Thoner & Birmingham were decided prior to
NLRB v. Electrical Workers Local 340, 481 U.S. 573,
586 (1987), in which the Supreme Court admonished the
Board that Section 8(b)(1)(B) is to be given a “limited
construction.” For these reasons, we have decided to
overrule Food City West and Thoner & Birmingham to
the extent that they are inconsistent with the general rule,
established by the Board in Kankakee-Iroquois and af-
firmed by the court of appeals, that it is not a violation of
Section 8(b)(1)(B) for a union to seek from an independ-
ent employer a contract containing the same provisions
as those in an agreement the union has already negotiated
with a multiemployer association.
Conclusion
Having found that the Respondent did not violate Sec-
tion 8(b)(3) or (1)(B), as alleged, we shall dismiss the
complaint in its entirety.
ORDER
The complaint is dismissed.

Rosalind Rowen, Esq., for the General Counsel.
Joseph J. Vitale, Esq., for the Respondent.
Alexander A. Miuccio, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARGARET M. KERN, Administrative Law Judge. This
case was tried before me on February 28, 2000, in Brooklyn,
New York. The complaint, which issued on November 30,
1999,1 is based on an unfair labor practice charge and an
amended charge filed by E.G. Clemente Contracting Corp. (the
Employer) on August 26 and November 10 against Local 282,
International Brotherhood of Teamsters, AFL–CIO (the Union
or Respondent).
It is alleged that beginning on August 9, the Union engaged
in a strike with the unlawful purpose of coercing the Employer
to execute a collective-bargaining agreement previously negoti-
ated between the Union and a multiemployer association to
which the Employer did not belong. Respondent maintains that
it engaged in lawful economic picketing sparked by the Em-
ployer’s obdurate behavior during bargaining. For the reasons
set forth herein, I find the Respondent violated Section
8(b)(1)(B) and (3) of the Act as alleged.
FINDINGS OF FACT
I. JURISDICTION
The Employer is engaged in the business of installing sewers
and water mains for the City of New York. Its principal office
and place of business is located at 4442 Arthur Kill Road,
Staten Island, New York (the main facility). The Employer also

1 All dates are in 1999 unless otherwise indicated.
maintains a yard facility at 200 Industrial Loop, Staten Island,
New York (the yard facility). During the past year the Em-
ployer, in the course and conduct of its business operations,
purchased goods, supplies, and materials valued in excess of
$50,000 directly from enterprises located outside the State of
New York. I find at all times material herein the Employer has
been engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, it is a labor organization
within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Since 1987, the Employer has recognized the Union as the
collective-bargaining representative of the following unit of
employees: all full-time and regular part-time automobile
chauffeurs, euclid operators, and turnapull operators employed
by the Employer at its Staten Island, New York facilities. At the
time of these events, there were three automobile chauffeurs
(drivers) in the bargaining unit.
Every 3 years, the Union negotiates an industrywide agree-
ment with the General Contractors Association (the GCA), a
multiemployer bargaining association. The Employer has never
been a member of the GCA and has never executed a “me too”
agreement in advance of the GCA negotiations. Rather, the
Employer has followed the practice of signing the association
agreement after negotiations are complete. In 1996, the Union
and the GCA entered into an agreement which contained a most
favored nations’ clause and a provision guaranteeing employees
8-hours pay for every shift started. The Employer executed the
1996–1999 GCA agreement and abided by its terms.
Garry Clemente, the company president, testified that his
business consists entirely of prevailing wage projects in the
public sector. He explained that there are a large number of
nonunion construction contractors on Staten Island who work
in the private sector but because these companies pay approxi-
mately one-half the Union’s rates, he has never been able to
compete for this business. Prior to signing the 1996–1999 GCA
agreement, Clemente told Lawrence Kudla, the Union’s re-
cording secretary and business agent, that the Union needed to
organize these contractors in order to level the competitive
playing field. Kudla indicated to Clemente that he would work
to organize these contractors.
By letter dated April 1, Gary LaBarbera, the Union’s interna-
tional trustee, gave notice to all of the signatories to the 1996–
1999 GCA agreement, including the employer, of the Union’s
intention to modify the agreement on its expiration on June 30.
The Union and the GCA commenced negotiations and on June
3, the parties entered into a nine-page memorandum of agree-
ment extending the terms of the 1996–1999 GCA agreement
with several modifications. The new agreement, consisting of
the previous agreement and the memorandum of agreement, is
effective by its terms from July 1, 1999, to June 30, 2002.
Kudla testified that in mid- to late June, the Union’s office staff
sent a copy of the memorandum of agreement to all signatories
including the Employer. The letter accompanying the memo-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1258
randum of agreement stated that the industrywide agreement
had been finalized and requested the employers “sign three
copies and send it back to the union.”
In mid-June, Clemente met with Kudla and renewed his
complaint about his inability to compete with the nonunion
contractors in the area. According to Clemente, he again told
Kudla that the union had to organize the nonunion contractors
so that the Company could compete for private sector work.
Clemente alternatively asked for wage relief under the terms of
the collective-bargaining agreement to which Kudla responded
that he could not deviate from the contract and that Clemente
would “live and die by the contract.” At the hearing Kudla
denied making these statements.
Kudla testified that during this same mid-June conversation,
Clemente said that Kudla had failed to organize the nonunion
contractors on Staten Island and therefore had failed to live up
to his end of the bargain. Kudla responded that he had in fact
organized a few contractors. Clemente told Kudla he would not
sign any contract with the union and Kudla should contact his
attorney, Alexander Miuccio. At the hearing, Clemente denied
stating that he would not sign a contract with the Union.
In late June or early July, Miuccio was in the Union’s offices
on behalf of another client. He met Kudla in the coffee room
and they discussed setting a date for negotiations between the
Union and the Employer.
Kudla testified that prior to the Employer’s request to bar-
gain in this case, no independent employer had ever requested
to bargain with the Union on an individual basis or sought con-
cessions from the GCA agreement. Kudla consulted with La-
Barbera and LaBarbera instructed him to meet with Clemente
and his attorney and ascertain their needs and concerns. LaBar-
bera indicated that after that was done, a second meeting could
be arranged. LaBarbera did not testify.
B. The July 29 Bargaining Session
1. The Employer’s version
On Thursday, July 29, Clemente, Miuccio, and Kudla met
for their only bargaining session which lasted approximately 1
hour. Miuccio testified that Kudla presented the 1999–2002
memorandum of agreement at the meeting. Miuccio, in turn,
presented a list of nonunion contractors operating on Staten
Island and reiterated Clemente’s position that he wanted to
expand his business into the private sector market but was un-
able to compete with contractors paying approximately one-half
the Union’s wage package. The employer was looking for two
concessions: (1) a two-tiered wage scale, one rate for prevailing
wage jobs and a lower rate for private sector jobs; and (2) relief
from the 8-hour work guarantee so that the Employer would
only be obligated to pay employees for hours actually worked.
Alternatively, Miuccio’s position was that the Employer would
be willing to pay the Union rate on all of its jobs provided the
Union organized the private sector and leveled the playing
field.
Kudla explained it was difficult to organize the nonunion
contractors because some were from out of State and others
were family-run enterprises. He also stated the Union was not
interested in representing employees working in the private
sector. Miuccio responded that if the Union was not interested
in the private sector work anyway, the Union should give the
Employer the concessions it was seeking. Kudla responded that
there was no way the terms of the 1999–2002 GCA agreement
could be varied due to the most favored nations clause and that
the Employer’s goal of obtaining more favorable terms “would
never happen.” He suggested the employer create a double-
breasted operation to compete in the private sector to which
Clemente responded that at his age, 65, he was not about to
invest a half-million dollars in equipment to form another cor-
poration. Miuccio added there was an antidouble breasting
clause in the contract. Kudla replied there were ways to do it
and he would not take out a magnifying glass and watch every-
thing the employer was doing. At one point during the discus-
sion Kudla said the Union could take economic action to which
Miuccio responded the union should do whatever it had to do.
Miuccio asked Kudla if he had the authority to negotiate an
agreement and to give concessions. Kudla responded he had the
authority to negotiate but he did not have the authority to sign
an agreement. Miuccio then asked for a meeting with LaBar-
bera and Kudla said he would set up a meeting and get back to
Miuccio.
Sometime during the following week, and no later than Fri-
day, August 6, Kudla called Miuccio with a proposed date for a
second bargaining session in August. Miuccio had a court ap-
pearance that day and suggested three alternate dates also in
August. He did not speak to Kudla again and on Monday, Au-
gust 9, the union commenced picketing.
2. The Union’s version
Kudla testified that Clemente began the discussion by stating
Kudla had not lived up to his end of the bargain to organize the
nonunion contractors on Staten Island and he was not going to
sign any contract with the union. Clemente presented a list of
what he believed to be the nonunion contractors and Kudla
pointed out that some of the contractors listed did in fact have
collective-bargaining agreements with the Union. Kudla then
asked Clemente what his needs and concerns were and
Clemente continued to complain about not being able to com-
pete in the private market. Kudla suggested that Clemente
speak to his attorney about ways to structure a corporation
which could do business on nonunion jobs and Clemente re-
sponded he was not going to spend money to buy equipment for
a separate company. Kudla reiterated he was willing to address
all of the Employer’s needs and concerns and he asked if the
problem was an inability to pay. Clemente said it was not an
inability to pay. Kudla recalled Miuccio turned to Clemente and
told him the union could strike him at any time and Kudla
agreed that the Union could take economic action. Miuccio
then stated if that happened there would be no need to negoti-
ate. Kudla disagreed and stated if the Union chose to take eco-
nomic action it would not prohibit the parties from getting to-
gether and negotiating an agreement.
As to the specific issue of the most favored nations clause,
Kudla testified:

KUDLA: [T]hey asked me that if I could make concessions
and [if] I could go outside the industry-wide contract, and I
said that, you know, I couldn’t do that but I would sit down
and I would address any needs or concerns that they had and
TEAMSTERS LOCAL 282 (E.G. CLEMENTE CONTRACTING) 1259
be willing to discuss those needs and concerns. Then Mr.
Miuccio said that, “well, if you are not prepared to make con-
cessions or if you don’t have that ability to do that, then we
would like to meet with Mr. LaBarbera” . . . I said “Sure.
There’s no problem.”

Kudla and Miuccio agreed to schedule a meeting with La-
Barbera and the meeting ended.
Kudla testified that his goal in attending the July 29 meeting
was to find out what the employer’s needs and concerns were
and to reach a contract. He brought a copy of the memorandum
of agreement solely as a point of discussion and he denied ever
telling Clemente that he had to sign it. Kudla was asked how he
could have circumvented the most favored nations’ clause in
order to give Clemente the relief he requested and he answered:

KUDLA: Okay. He never said what the relief was. All right?
And we never understood what their relief was. If we under-
stood what the relief was, maybe we could have sat down, we
could have addressed it, and maybe come up with ways. I
don’t know. Okay? But he never said what the relief was.

Later in his testimony, however, Kudla admitted that he was
aware of the two concessions the employer was seeking at the
July 29 meeting. His testified that his response to the proposed
two-tiered wage system was that Clemente should consult with
Miuccio who could guide him how on how to compete in the
private sector. As to the requested relief from the 8-hour guar-
antee, Kudla testified that he told Miuccio and Clemente that he
considered that proposal “unconscionable.”
Consistent with Miuccio’s testimony, Kudla testified that
sometime during the following week he called Miuccio to dis-
cuss a date for the next bargaining session. Kudla suggested a
date that was good for LaBarbera but Miuccio had a conflict
and they agreed to get back to one another to further discuss
possible dates. They did not speak again and the union com-
menced picketing on Monday, August 9.
3. The decision to strike
Kudla testified that sometime after the July 29 meeting but
before his conversation with Miuccio the following week, the
union received a letter from each of the employer’s employees
stating that they desired to become financial core members of
the Union.2 Each letter was dated August 3 and addressed to
LaBarbera. The letters were identical in content and read in
relevant part:

2 The three letters were marked for identification by the Union’s
counsel and shown to Miuccio who acknowledged he prepared the
letters and faxed them to Clemente. Miuccio did not know what, if
anything, Clemente did with the letters and I rejected counsel’s offer of
the letters into evidence at that point in the proceedings. Kudla later
testified he received three financial core letters from the Employer’s
bargaining unit employees and that he and LaBarbera relied on those
letters when they made the decision to strike the Employer. Although
the Union’s counsel did not reoffer the letters, I conclude that Kudla’s
testimony sufficiently completed the evidentiary foundation for their
admission into evidence and that they are material to the issues in this
case. I therefore receive them in evidence as R. Exh. 5. This ruling does
not in any way prejudice the General Counsel or the Charging Party
since the letters only serve to clarify Kudla’s testimony regarding his
state of mind when he and LaBarbera made the decision to strike.

This is to notify you that effective immediately I am changing
my membership status in Local 282, I.B.T. from that of “full”
member to that of a “financial core” member. As such I will
continue to pay the appropriate union dues uniformly required
of all members for maintaining membership. I am not resign-
ing from the Union. I am only changing my membership
status. I am no longer bound by any union constitution, by-
laws or rules of any kind.

Kudla testified he and LaBarbera felt the financial core let-
ters were indicative of the Employer’s unwillingness to negoti-
ate in good faith and that it was the right time to take economic
action. Kudla could not recall whether the decision to strike
was made before or after his last telephone contact with Miuc-
cio. He denied that the purpose of the strike was to convince the
Employer to sign the memorandum of agreement.
C. The August 9 Strike
At about 6 a.m. on the morning of August 9, Clemente ob-
served 50 to 60 pickets at the yard facility. Clemente testified
he met Kudla on the street and when they spoke they stood
apart from the pickets. Clemente said the picketing was not
necessary and what he was asking for was not unreasonable.
Kudla responded he had to do what he had to do and if
Clemente signed the contract the pickets would be gone in 10
minutes.
Kudla testified that Clemente approached him and observed
that Kudla had him on strike. Kudla responded that it was an
economic action and Clemente repeated it was a strike. Kudla
said the Union was prepared to sit down to discuss Clemente’s
needs and concerns and to negotiate a contract.
Benny Umbra has been a member of the Union for 19 years
and has served on the Union’s industry negotiating committee
for the last three rounds of negotiations. He is also the shop
steward at Scara Mix, his place of employment. Umbra testified
that Kudla called him and told him there was going to be pick-
eting at the employer and Umbra asked Kudla if he could at-
tend. On August 9, Umbra was on the picket line and observed
Clemente come out to the street to speak to Kudla. Umbra testi-
fied, “[W]ell, since this was really basically my first picket line,
I was curious in what kind of conversation they engage in, so I
stopped walking and I stood next to Larry.” According to Um-
bra, Clemente spoke first and said, “[T]his is an ‘effing’ strike,”
to which Kudla responded it was an economic action. Clemente
repeated it was a strike and stated he would never sign another
‘effing contract until Kudla signed the “500 trucks around the
corner.” Kudla responded that it was his choice but the Union
was willing to sit down and negotiate a contract. According to
Umbra, Clemente repeated that he would never sign another
contract.
Neither Clemente nor Kudla made any reference to Umbra
being present at the time of their conversation on the morning
of August 9.
The Union picketed on August 9, 10, and 11 at the yard
facility and at two of the Employer’s jobsites. Umbra picketed
on each day although he could not recall the language on the
picket signs. Kudla testified that the picket signs read “E.G.
Clemente On Strike” and “On Strike—Local 282 does not have
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1260
a dispute with any other contractor at the site nor is 282 seeking
anyone to cease doing business with E.G. Clemente.” For the
first 2 days of the strike, other unions crossed the picket line.
On August 11, however, Clemente was contacted by three dif-
ferent union locals and was informed that their members would
begin honoring the picket line. Clemente testified that he was
“absolutely” influenced by that information. That same day,
Clemente saw Kudla on the street and signed the memorandum
of agreement on the hood of his car. Kudla told Clemente he
was doing the right thing and, according to Clemente, the pick-
eting stopped 10 to 15 minutes later.
According to Kudla, on August 11, he was riding around
looking for Clemente and he found him at the yard facility. He
told Clemente that the Union was willing to sit down and nego-
tiate and that they should not let the strike go on for too long
because it would lead to animosity. Clemente told Kudla to
give him about an hour and he would let him know his deci-
sion. Kudla went to check on the jobsites where the picketing
was being conducted and about an hour later, Clemente ap-
proached him and said he should come back to the office. They
went to the office and Clemente signed the memorandum of
agreement. Kudla then described his actions immediately fol-
lowing Clemente’s execution of the agreement:

KUDLA: I went over to the picketers and I said to the picket-
ers “Look, I want everybody to behave themselves like gen-
tlemen. All right? I don’t want anybody to gloat or to rub any-
body’s nose.” And I told them that Mr. Clemente had signed
the contract and you know, just respond like gentlemen. I says
“It’s over. All right? And that’s the end of it.” And I think a
few of them went up to Mr. Clemente and shook his hand or
said goodbye to him. There was no taunting or anything and
everybody just basically, just parted his job.

Umbra testified sometime on August 11, he received a phone
call from Kudla who advised him not to return to the picket line
the next day because the employer had signed the contract.
D. The Union’s Newsletter
In the fall 1999 edition of the Union’s newsletter, Kudla au-
thored an article entitled “Local 282 Area Reports—Staten
Island.” The article read in relevant part:

Another 282 victory was against a Water Main Contractor,
E.G. Clemente. Clemente was a 282 signatory but refused to
sign the 1999–2002 New York City Heavy Memorandum of
Agreement. After the first session of contract talks Clemente
was seeking major concessions from the Industry-Wide-
Agreement. Brother Kudla and Trustee LaBarbera made a de-
cision to take economic action against Clemente and struck
this employer. Picket lines were assembled at 5:30 each morn-
ing at the main yard and at each Clemente job site. Within
three days Clemente signed the 1999–2002, New York Heavy
Agreement.

Kudla testified this article was merely a “puff piece” and an
“exaggeration” designed to make the members “feel good about
the Union,” and was not an accurate summary of events. He
also attributed inaccuracies in the article to the fact that he had
to write as concisely as possible due to limited space. On cross-
examination, Kudla was asked to explain his reference to the
“major concessions” sought by the employer and he testified
that the concessions referenced were the Employer’s request for
wage relief in order to work outside the prevailing wage market
and the Employer’s request for relief from the 8-hour guaran-
tee.
IV. ANALYSIS
A. Credibility
I credit the testimony of the General Counsel’s witnesses
over the Respondent’s witnesses. Attorney Miuccio was a
credible and straightforward witness who possessed excellent
recall of events. He was the only participant who took contem-
poraneous notes at the July 29 bargaining session which served
to aid his recollection. Clemente’s testimony was largely cor-
roborative of Miuccio’s testimony although Clemente’s recol-
lection was not as precise and less detailed. He nevertheless
impressed me as a straightforward and honest witness.
In comparison to Miuccio and Clemente, I found Kudla to be
far less credible. His testimony was inconsistent in two signifi-
cant respects. First, Kudla testified repeatedly that at the July
29 meeting he was solicitous of the Employer’s “needs and
concerns.” When he was asked what those needs and concerns
were, however, he first testified that he had no idea because
neither Miuccio nor Clemente ever stated what relief they seek-
ing. Later in his testimony, however, Kudla was forced to admit
that he, the Employer, had in fact advanced two demands, a
two-tiered wage scale and exemption from the 8-hour guaran-
tee. Second, Kudla authored the article in the Union’s newslet-
ter in which he recited, in simple and straightforward language,
the following sequence of events: first, the Employer refused to
sign the GCA agreement and sought major concessions; sec-
ond, he and LaBarbera decided to call a strike; and third, 3 days
into the strike the Employer signed the GCA agreement.
Kudla’s succinct summary, couched in cause and effect lan-
guage, precisely tracked the version of events given by Miuccio
and Clemente. Kudla’s attempt at trial to distance himself from
his own words was not believable. Therefore, to the extent that
Kudla’s testimony conflicts with the testimony of Miuccio and
Clemente’s, I credit Miuccio and Clemente.
I also discredit the testimony of Umbra as it relates to the
conversation between Kudla and Clemente on the morning of
August 9 on the picket line. Neither Clemente nor Kudla testi-
fied that Umbra was present for this conversation. Moreover,
Umbra’s testimony that Clemente stated that he would never
sign another union contract in the course of this conversation
contradicts Kudla’s testimony. Kudla made no reference to any
such remark during this conversation. Umbra has been a mem-
ber of the Union for 19 years, serves on the Union’s negotiating
committee, and is a shop steward. I find his testimony was mo-
tivated by his desire to aid the Union in its defense of the alle-
gations in this case and not by honest recollection. To the ex-
tent that his testimony conflicts with the testimony of
Clemente, I credit Clemente.
B. Positions of the Parties
The General Counsel contends that the object of the Union’s
3-day strike was to unlawfully coerce the employer into execut-
TEAMSTERS LOCAL 282 (E.G. CLEMENTE CONTRACTING) 1261
ing the 1999–2002 GCA agreement in violation of 8(b)(1)(B)
and (3).3 The Union maintains that it engaged in lawful eco-
nomic picketing brought about by the Employer’s repeated
statements that it would not sign any contract with the Union,
the Employer’s unreasonable positions taken during bargaining
and the Employer’s authorship of “core member” letters signed
by its employees.
The credible testimony establishes that in mid-June, after the
1999–2002 GCA agreement was fully negotiated, Clemente
broached the idea of a two-tiered wage scale with Kudla. Kudla
flatly rejected any notion of deviating from the terms of the
agreement, telling Clemente he would “live and die by the con-
tract.” Kudla reiterated this position during the July 29 bargain-
ing session when he stated the terms of the GCA agreement
could not be varied due to the most favored nations’ clause and
the Employer’s goal of obtaining more favorable terms “would
never happen.” It was that remark which prompted Miuccio to
request a meeting with LaBarbera who was held out as the per-
son with the authority to fully negotiate the terms of an agree-
ment. By the conclusion of the July 29 meeting, the Parties’
positions were clearly delineated: the Employer was demanding
two concession from the GCA agreement, the union was de-
manding the employer sign the GCA agreement without modi-
fication, and the parties agreed to meet again to negotiate fur-
ther.
Several days after the July 29 meeting, Kudla and Miuccio
spoke by telephone and attempted to arrive at a mutually con-
venient date for their second meeting. Each suggested dates and
agreed to get back to one another. Kudla made no mention
during this conversation of the Union’s receipt of the core
membership letters, nor did he make any reference to a strike.
The Parties were clearly still in a negotiating posture.
By the morning of August 9, the Union made the decision to
strike the Company and the credible evidence establishes over-
whelmingly that the purpose of the strike was to compel the
employer to execute the 1999–2002 GCA agreement. First, at
the commencement of the picketing, Kudla told Clemente if he
signed the memorandum of agreement the pickets would be
gone in 10 minutes. Second, after Clemente signed the agree-
ment, the picketing did in fact stop within minutes. Third,
Kudla admitted during his testimony that after the contract was
signed he went directly to the picketers and told them the strike
was over. Fourth, Kudla told Umbra not to return to the picket
line the next day because the employer had signed the contract.
Finally, Kudla wrote in the Union’s newsletter of his and La-
Barbera’s “victory” in getting the employer to sign the 1999–
2002 GCA agreement after a 3-day strike.
Respondent’s argument that it was willing to continue to ne-
gotiate with the Employer throughout the strike is contrary to

tative.
3 The Charging Party requests that I also find the union’s conduct at
the July 29 bargaining to constitute a violation of Sec. 8(b)(1)(B) and
(3). The General Counsel, however, does not advance this theory of
liability and specifically limited the pleadings to allege only the strike
as the unfair labor practice. Since it is the General Counsel and not the
Charging Party who determines the theory of the case, I do not consider
the Charging Party’s argument. Operating Engineers Local 12 (Sequoia
Construction), 298 NLRB 657 fn. 1 (1990).

the credible evidence. The parties were in the midst of continu-
ing negotiations when the strike was called. If the Union truly
wanted to address the Employer’s “needs and concerns” as
claimed by Kudla, it could simply have continued negotiating.
Instead, the Union decided to strike and as a direct result of that
economic pressure, the employer signed the agreement.
The General Counsel correctly argues that the Board, in
similar circumstances, has found such conduct by a union vio-
lative of the Act. By compelling an independent employer to be
bound by an agreement negotiated by a multiemployer associa-
tion to which it does not belong, a union coerces the employer
to select the multiemployer association as its collective-
bargaining representative in violation of Section 8(b)(1)(B).
This conduct also violates Section 8(b)(3) by forcing the em-
ployer to agree to a nonmandatory subject of bargaining, i.e.,
the effective designation of the multiemployer association as its
bargaining representative, and by forcing the employer to be
bound by the association agreement. Commercial Workers
Local 1439 (Food City West), 262 NLRB 309 (1982); Laborers
Local 652 (Thoner & Birmingham Construction Corp.), 238
NLRB 1456 (1978); Retail Clerks Local 770 (Fine’s Food Co.),
228 NLRB 1166 (1977). I therefore find that the Union’s con-
duct violated Section 8(b)(1)(B) and (3) of the Act.

CONCLUSIONS OF LAW
1. The Employer is engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
3. The following employees constitute a unit appropriate for
the purpose of collective bargaining within the meaning of
Section 9(b) of the Act:

All full time and regular part time automobile chauffeurs,
euclid operators and turnapull operators employed by the em-
ployer at its Staten Island, New York facilities.

4. Respondent is the exclusive representative of all employ-
ees in the appropriate unit for purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. Respondent violated Section 8(b)(1)(B) on August 9
through 11, 1999, by engaging in a strike and picketing with an
unlawful object of coercing the employer to select the General
Contractors’ Association as its collective-bargaining
represen
6. Respondent violated Section 8(b)(3) on August 9 through
11, 1999 by engaging in a strike and picketing with an unlawful
object of coercing the employer to involuntarily agree to the
designation of the General Contractors’ Association as its col-
lective-bargaining representative, a nonmandatory subject of
bargaining, and with the further unlawful object of coercing the
Employer to be bound to the agreement negotiated by the Gen-
eral Contractors’ Association to which it did not belong.
7. Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1262
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Charging Party Employer, joined by the General Coun-
sel, seeks a make-whole remedy for the financial expenditures
made under the 1999–2002 GCA agreement which it would not
have been obligated to make under the expired 1996–1999
GCA agreement. The rationale is to prevent the Respondent
from reaping the fruits of its unlawful action and there is sub-
stantial Board precedent for the awarding of such relief. Paint-
ers (Northern California Drywall Assn.), 326 NLRB 1074
(1998); Teamsters Local 70 (Emery Worldwide), 295 NLRB
1123 (1989); Graphic Communication Local 280 (Barry Co.),
235 NLRB 1084 (1978), enfd. 596 F.2d 904 (9th Cir. 1979);
Longshoremen ILWU Local 17 (Los Angeles By-Products Co.),
182 NLRB 781 (1970), enfd. 451 F.2d 1240 (9th Cir. 1971).
Respondent opposes the granting of this relief claiming that
an award could only be based on the terms of a collective-
bargaining agreement which might be reached between the
Employer and the Union sometime in the future. I agree that a
make-whole remedy calculated in these terms would be inap-
propriate. The correct measure in these circumstances is the
difference in costs to the employer between the agreement it
was coerced into signing and the terms of the expired collec-
tive-bargaining agreement it was obligated to maintain. This
approach would simply restore the Employer to the status quo
ante the Union’s unfair labor practices.
Respondent’s suggestion that the Board lacks the power to
order damages under any circumstances is without merit. It is
well settled that the Board is empowered to remedy unfair labor
practices by requiring compliance with contractual require-
ments and Section 301 does not supplant the Board’s authority
to remedy contract breaches. NLRB v. Strong Roofing Co., 393
U.S. 357 (1969); Teamster Local 70 (Emery Worldwide), supra.
Finally, Respondent argues that the Employer did not suffer
economic loss because it would have been obligated to pay the
prevailing wage rate on all of its jobs which is equivalent to the
economic package in the 1999–2002 GCA agreement. This
issue is properly raised in a compliance proceeding.
Respondent must therefore make whole the employer for any
expenditures made on or after August 11, 1999, pursuant to the
terms of the 1999–2002 GCA agreement which it would not
have been obligated to make under the terms of the expired
1996–1999 GCA agreement.
[Recommended Order omitted from publication.]