The Cement League

National Labor Relations Board - Board Decisions

Feb 12, 2016

363 NLRB No. 117 (N.L.R.B. 2016)

363 NLRB No. 117
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
The Cement League and Northeast Regional Council
of Carpenters and New York City and Vicinity
District Council of Carpenters, Party in Interest.
Case 03–CA–126938
February 12, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On May 21, 2015, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Party
in Interest, New York City and Vicinity District Council
of Carpenters (“the NYC Council”), filed exceptions and
a supporting brief, and the Respondent joined and adopt-
ed both filings.1 The General Counsel and the Charging
Party, Northeast Regional Council of Carpenters, filed
answering briefs. The NYC Council filed a reply brief
that the Respondent also adopted. The General Counsel
additionally filed a cross-exception.2
The National Labor Relations Board has delegated 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 and set
forth in full below.3
The only allegation before us is that the Respondent,
an association of employers in the construction industry,
violated Section 8(a)(1) of the Act by maintaining and
giving effect to hiring provisions in its 2011–2015 col-
lective-bargaining agreement with the NYC Council, a
labor organization, that encouraged union membership.4
These so-called “full mobility” provisions allowed em-
ployers in the Respondent association to hire anyone they
wished without having to hire individuals referred from
the out-of-work list maintained by the NYC Council,

1 The NYC Council and the Respondent have requested oral argu-
ment. The request is denied as the record, exceptions, and briefs ade-
quately present the issues and the positions of the parties.
2 Glen G. McGorty, the court-appointed independent monitor under
the RICO consent decree (described below), filed an amicus brief, and
the General Counsel filed a response.
3 The General Counsel cross-excepts to the judge’s inadvertent
omission of a “Conclusions of Law” section from his decision. We
grant the unopposed exception and provide the section below. We shall
modify the judge’s recommended Order to conform to the violation
found and the Board’s standard remedial language, and in accordance
with our decision in Excel Container, Inc., 325 NLRB 17 (1997). We
shall substitute a new notice to conform to the Order as modified.
4 The full text of the provisions is set forth in the judge’s decision.
provided the hires were members of the NYC Council.5
Any nonmember hire had to be matched with an individ-
ual referred from the out-of-work list. The judge found
that there was no evidence that the NYC Council dis-
criminated based on union membership with regard to
the out-of-work list or that the list was otherwise unlaw-
ful. The judge found the violation because the employ-
ers’ highly valued contractual right to bypass the out-of-
work list hinged on their hiring union members and thus
impermissibly encouraged union membership.
Neither the Respondent nor the NYC Council excepts
to the judge’s finding that the full-mobility hiring provi-
sions contravene the National Labor Relations Act. They
ask us, however, not to invalidate the provisions—even
though they undisputedly violate the Act—because doing
so, they claim, would be “in direct conflict and incon-
sistent with the objective and terms of the Consent De-
cree and related orders.” The consent decree to which
they refer, approved on March 4, 1994, settled a civil
action under the Racketeer Influenced and Corrupt Or-
ganizations Act (RICO) brought by the U.S. Department
of Justice against the NYC Council and some of its offic-
ers. As for the “related orders,” the Respondent and the
NYC Council particularly point to United States v. Dis-
trict Council of New York City & Vicinity of Carpenters,
90 Civ. 5722 (RMB) (S.D.N.Y. Oct. 23, 2013), in which
the district court “approved” the 2011–2015 collective-
bargaining agreement.
The NYC Council has been monitored by the United
States District Court for the Southern District of New
York (the district court) ever since it entered into the
1994 consent decree. Pursuant to the decree, the NYC
Council applied to the district court for approval of the
2011–2015 agreement. In its October 23, 2013 Order,
the district court granted approval, relying on its earlier
approval of an essentially identical collective-bargaining
agreement between the NYC Council and another em-
ployer association, the Association of Wall-Ceiling &
Carpentry Industries of New York (“the WCC”). In its
May 8, 2013 Decision and Order approving the WCC
agreement, the court stated:
Integral to the CBA is full mobility and a computerized
compliance program designed to protect against abuse
and corruption in the workplace. As to full mobility,
the ability of the contractors to select the carpenters
they employ appears to have been freely bargained for
with the Union, resulting in, among other things, a
higher wage component. As to the anti corruption [sic]

5 The sole exception to this arrangement was that even if the hires
were NYC Council members, the shop steward had to be hired from the
out-of-work list.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
compliance provisions, these seem genuinely calculat-
ed to prevent fraud and abuse in the workplace. . . .
[These include] (1) Shop Stewards electronically re-
porting personnel and hours, (2)carpenters [sic] being
able to check through the electronic reporting system
any and all jobs on which they were employed to insure
the accuracy of the number of reported carpenters and
hours, (3) the hiring of additional on-site inspectors
employed by the Inspector General of the District
Council for visiting job sites on a 24 hours a day and 7
days per week basis and concentrating on one and two-
person jobs where the CBA will not require a Shop
Steward, and (4) CBA sanction and arbitration provi-
sions by which contractors found to have willfully and
with bad intent violated staffing, wage, and benefit re-
quirements would be subject to loss of the right to full
mobility and instead would be required to use the [out-
of-work list] for at least fifty percent (50%) of their
staffing requirements while otherwise being bound by
all of the other provisions of the CBA. . . . Most im-
portantly, the CBA is a bargained over agreement and
was approved by the Executive Committee of the Dis-
trict Council and by the Delegate Body of the District
Council, lawfully designated representatives with the
authority to approve collective bargaining agreements.
United States v. District Council of New York City & Vicini-
ty of Carpenters, 90 Civ. 5722 (RMB) (S.D.N.Y. May 8,
2013) (citations omitted).
Having reviewed the district court’s October 23, 2013
Order and its May 8, 2013 Decision and Order, we con-
clude that finding and remedying the unfair labor prac-
tice at issue here does not undermine the court’s im-
portant anticorruption objectives or its orders in support
of those objectives.
Initially, we emphasize the limited nature of our find-
ing. The hiring provisions at issue violate the Act be-
cause they condition “full mobility”—that is, the right of
Cement League employers to hire without reference to
the out-of-work list—on hiring NYC Council members.
We order only that the Respondent cease maintaining
and giving effect to those provisions and notify employ-
ees and employers in the association that those provi-
sions are invalid. Our Order does not invalidate any oth-
er part of the 2011–2015 agreement.
Our finding does not countermand the district court’s
orders. In approving the 2011–2015 agreement and its
full-mobility hiring provisions, the district court assessed
whether the agreement was consistent with the 1994 con-
sent decree. The district court particularly emphasized
that the agreement was freely bargained for and demo-
cratically approved within the NYC Council. The dis-
trict court did not cite any provision of the NLRA or ana-
lyze the agreement’s full-mobility provisions under the
NLRA. Because it was not relevant to its analysis, the
district court did not discuss the significance, under the
Act, of the provisions conditioning the employers’ full-
mobility rights on their hiring of union members—the
critical fact in an NLRA analysis.
We also find no indication in the district court’s orders
that the full-mobility hiring provisions had an anticorrup-
tion purpose. The district court did not mention anticor-
ruption together with full mobility except when noting
that employers “found to have willfully and with bad
intent violated staffing, wage, and benefit requirements
would be subject to loss of the right to full mobility and
instead would be required to use the [out-of-work list]
for at least fifty percent (50%) of their staffing require-
ments.” In other words, full mobility is a privilege that
could be taken away as a sanction—a benefit to persuade
compliance and not itself an anticorruption mechanism.6
We therefore reject the arguments of the Respondent, the
NYC Council, and the independent monitor that the full-
mobility hiring provisions serve the court’s anticorrup-
tion goals. But even assuming that the provisions at is-
sue may serve those goals to some extent, the district
court decided only to permit the provisions in the agree-
ment put before it; other hiring provisions have been
approved by the district court in the past and surely could
be again.7
In sum, there is no dispute that the 2011–2015 collec-
tive-bargaining agreement’s full-mobility hiring provi-

6 In support of their argument that the hiring provisions were im-
portant for the district court’s anticorruption objectives, the Respondent
and the NYC Council cite a decision that issued after the hearing in this
case, involving the WCC and its identical agreement: New York City &
Vicinity District Council of Carpenters v. Assn. of Wall-Ceiling &
Carpentry Industries of New York, Inc., 14 Civ. 6091 (S.D.N.Y. April
27, 2015). In that decision, the court vacated an arbitrator’s award that
departed from the hiring provisions in the agreement because the award
was contrary to the agreement’s unambiguous language, which the
arbitrator was bound to follow. The court did not cite anticorruption
objectives when it vacated the award.
7 When the NYC Council entered the consent decree, its collective-
bargaining agreements provided for a 50-50 hiring ratio. That is, em-
ployers could choose 50 percent of their employees from any source,
and they had to hire the other 50 percent from the NYC Council’s out-
of-work list. The consent decree required that referrals from the out-of-
work list comply with the principle of first-listed, first-referred, with
the exception that an employer could take an employee out of order if
the employer had employed him or her in the previous 6 months. Sub-
sequent collective-bargaining agreements ran afoul of the consent de-
cree’s first-listed, first-referred rule, and the district court modified the
hiring provisions to remedy the breach by imposing a 67-33 hiring ratio
under which, without exception, 33 percent of hires had to be referred
from the out-of-work list in order. See United States v. District Coun-
cil of New York City & Vicinity of Carpenters, 592 F. Supp. 2d 708,
722 (S.D.N.Y. 2009).
CEMENT LEAGUE 3
sions violate the Act. As explained, setting aside those
provisions does not conflict with the district court’s im-
portant anticorruption objectives under the consent de-
cree and RICO. We accordingly proceed to remedy the
undisputed violation consistent with our standard prac-
tice.8
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Northeast Regional Council of Carpenters is a
labor organization within the meaning of Section 2(5) of
the Act.
3. The New York City and Vicinity District Council of
Carpenters is a labor organization within the meaning of
Section 2(5) of the Act.
4. By maintaining and/or otherwise giving effect, since
about November 6, 2013, to article VI, section 2, article
VII, section 2, article VII, section 5, article VII, section
5(b), and article XIX, section 35 of its collective-
bargaining agreement with the New York City and Vi-
cinity District Council of Carpenters, to the extent that
those provisions give preference in hiring based on
membership in that labor organization, the Respondent
has violated and is violating Section 8(a)(1) of the Act.
5. The Respondent’s unfair labor practice affects
commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
The National Labor Relations Board orders that Re-
spondent The Cement League, New York, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining and/or otherwise giving effect to pro-
visions in its collective-bargaining agreement with the
New York City and Vicinity District Council of Carpen-
ters that give preference in hiring based on membership
in that labor organization.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

8 The Respondent and the NYC Council, both parties to the 2011–
2015 agreement, interpret the agreement to provide that if the Board
invalidates the full-mobility hiring provisions, the entire agreement is
null and void, and the terms of the 2006–2011 collective-bargaining
agreement (as modified by the district court to impose the 67–33 hiring
ratio) would come back into effect. To be clear, we do not order that
outcome, and nothing in our Decision and Order precludes the parties
from bargaining further and reaching a new agreement.
(a) Notify all employers in the Respondent association
that, to the extent that article VI, section 2, article VII,
section 2, article VII, section 5, article VII, section 5(b),
and article XIX, section 35 of the collective-bargaining
agreement with the New York City and Vicinity District
Council of Carpenters give preference in hiring based on
membership in that labor organization, those provisions
violate the Act and can no longer be maintained or given
any force or effect.
(b) Within 14 days after service by the Region, post at
its offices in New York, New York, and any other geo-
graphic area covered by its collective-bargaining agree-
ment with the New York City and Vicinity District
Council of Carpenters, copies of the attached notice
marked “Appendix.”9 Copies of the notice, on forms
provided by the Regional Director for Region 3, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent
since November 6, 2013.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 3 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C., February 12, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain or otherwise give effect to pro-
visions in our collective-bargaining agreement with the
New York City and Vicinity District Council of Carpen-
ters that give preference in hiring based on membership
in that labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL notify all employers that are members of our
association that the full-mobility hiring provisions in our
2011–2015 collective-bargaining agreement with the
New York City and Vicinity District Council of Carpen-
ters are unlawful under Federal labor law and can no
longer be maintained or given any force or effect.
THE CEMENT LEAGUE
The Board’s decision can be found at
http://www.nlrb.gov/case/03-CA-126938 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273–1940.
John Grunert Esq. and Charles Guzak Esq., for the General
Counsel.
Michael Salgo Esq., for The Cement League.
Raymond G. Heineman Esq., for the Charging Party.
James M. Murphy Esq., for the Party in Interest.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case on March 25, 2015, in New York City. The charge in this
proceeding was filed on April 21, 2014, and the complaint was
issued on December 31, 2014. It essentially alleges that a col-
lective-bargaining agreement between The Cement League, an
employer association, and the New York City and Vicinity
District Council of Carpenters contained provisions granting
preference in hiring based on union membership.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed,1
I make the following
FINDINGS OF FACT
I. JURISDICTION
The Cement League is an employer association that bargains
on behalf of its employer members with various labor organiza-
tions including the New York City and Vicinity District Coun-
cil of Carpenters (the NYC Council). It is conceded that mem-
bers of The Cement League, who are engaged in the construc-
tion industry, collectively purchase and receive goods on an
annual basis, valued in excess of $50,000 directly from points
outside the State of New York. I therefore conclude that The
Cement League is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. It also is
agreed and I find that the two Carpenter District Councils are
labor organizations within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
Although the Respondent in this case is nominally The Ce-
ment League, the actual dispute is between two of the Regional
Council’s of the Carpenters International Union. That dispute
relates to under what conditions or limitations, an employer
member of The Cement League (or a signatory to The Cement
League collective-bargaining agreement), that is doing work in
New York City, may hire individuals who are not members of
local unions that are not part of the NYC Council. And not-
withstanding that this dispute is essentially between two labor

1 The Respondent did not file a brief.
CEMENT LEAGUE 5
organizations, with the employers in the middle, these unions
have been unable to resolve this issue internally or with the
assistance of their International Union.
The Cement League and the NYC Council have executed a
series of successive collective-bargaining agreements for many
years. The NYC Council, as a Regional Council, is made up of
a group of local carpenter unions. The most recent contract
runs from July 1, 2011, to June 30, 2015. Basically, this con-
tract covers work done in the New York Metropolitan area.
The Charging Party is the Northeast Regional Council of
Carpenters (the Northeast Council). This Council is made up of
various local carpenter unions and its geographic jurisdiction
covers northern New Jersey, upstate New York and Long Is-
land.
Historically, members of the unions affiliated with the NYC
Council and the Northeast Council have, from time to time,
gotten jobs in the respective jurisdictions of each Council.
When obtaining such jobs, they would be covered by the appli-
cable collective-bargaining agreement for wages and benefits,
but would not be required to change their union membership.2
For some time, there was a trend of people going from New
York City to New Jersey, Long Island and upstate New York.
But in more recent years, the flow has been in the opposite
direction with suburban carpenters going to New York City and
transferring their membership to locals of the NYC Council.
And although in the past, a carpenter member of the Northeast
Council who decided to obtain employment in New York City
might have simply obtained employment there from an em-
ployer-member of The Cement League and worked under the
NYC Council contract, that has changed. For the past several
years, those upstate or suburban carpenters have been transfer-
ring their local union membership from locals affiliated with
the Northeast Council to locals affiliated with the New York
City Council. More about this later.
Many of the employers who are members of The Cement
League are large contractors performing construction work on
office buildings and residential apartment buildings and who
maintain more or less stable work forces that move from job to
job. In the past, the contract between the NYC Council and
The Cement League has permitted employers to select up to
one half of their work force for any given project, but required
them, after the hiring of a foreman and a shop steward, to ob-
tain the other half from the NYC Council out-of-work list; this
being a nonexclusive referral system which was not limited to
members of the affiliated local unions of the NYC Council.
This was memorialized at article VI of the contract covering the
period from July 1, 2006, to June 30, 2011.
In September 1990, the United States Attorney filed a civil
RICO action against the NYC Council and some of its officers.
(United States of America v. District Council of New York City
and Vicinity Carpenters, et al., 90 Civ. 5722). The thrust of
this action was the Government’s allegations that this labor

2 It is my understanding that for example when an employee from
the Northeast Council got a job in New York City, he would be paid the
New York contract rate but the pension and welfare contributions
would be transferred to the funds operated by affiliates of the Northeast
Council.
organization had been engaged in graft and corruption and that
it had connections to organized crime. Among the allegations
were the assertions that the NYC Council had, through the pro-
visions of its contract and hiring hall, abused the hiring hall
system by rewarding associates and punishing dissident union
members. It was alleged that the Union and local shop stewards
had conspired with employers and had been paid off to allow
employers to hire employees “off the books.” If proven this
would mean that there were instances where employers, with
the approval of corrupt union officials and agents, hired em-
ployees who were not paid the wages required by the collec-
tive-bargaining agreement. It also would mean that those em-
ployers would not have made the contractually required pay-
ments to various pension and other benefit funds that were
established for the benefit of bargaining unit employees.
After a trial commenced in September 1993, the NYC Coun-
cil offered to settle that case and a consent decree was entered
on March, 4, 1994. In part, the settlement provided for the
selection of a court appointed monitor, who at the present time
is Glen G. McGorty. It also required that the Court approve
any new collective-bargaining agreements made by the NYC
Council or its affiliated unions.
In 2007, as a result of a contempt proceeding, the Court, in
2009 ordered that the 50:50 hiring ratio be modified so that the
employers could now hire 67 percent of their work force from
any source whereas 33 percent would be referred by the Union
from the out-of-work list. U.S. District Council of NYC & Vi-
cinity of Carpenters, 592 F.Supp. 2d 708 (2009).
In April 2010, the District Court, based on a stipulation, en-
tered an Order regarding the appointment of a review officer.
This person pursuant to the Order would have the access to all
union and union benefit fund records, and would have the pow-
ers, inter alia, to conduct investigations, to initiate lawsuits
against union officers, agents and employees, to oversee union
elections, to discipline union officers, agents and employees,
and to supervise job referral rules and procedures.
In May 2013, The Cement League and the NYC Council ne-
gotiated modifications to their existing contract and this was
ratified on October 9, 2013. Among the issues agreed to was
that the employers could, with the limitations described below,
man any particular project with employees of their own choos-
ing, without being required to utilize the Union’s out-of-work
or referral list. The limitation was that in order to do so, the
employer’s chosen work force would have to consist of mem-
bers of the NYC Council.
On October 23, 2013, United States District Judge Richard
M. Berman, after being asked to review a proposed contract,
issued an Order which stated; “the Court herby grants the Dis-
trict Council’s application and approves the CBA between the
District Council and The Cement League, including its provi-
sions regarding full mobility and anti-corruption technology
mechanism.” 3 The NLRB was not a party to this lawsuit and

3 The Court noted that the parties to the agreement were to establish
an electronic jobs reporting system. Although this is not described in
any detail, I would assume that this mechanism was to enable the moni-
tor to determine the names, job classifications, rates of pay, and hours
of work for those persons employed by the members of the NYC Coun-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
as far as I can determine there was no consideration by any of
the parties or the judge as to whether any of the contract’s pro-
visions might have been in conflict with the mandates of the
National Labor Relations Act.
The contract that was approved by the Court contained the
following provisions that the General Counsel claims to dis-
criminate against nonmembers of the affiliated locals of the
NYC District Council.
Article VI, Section 2:
Any employees not members of the District Council shall be
matched 1:1 from the District Council Job Referral List. The
Union will cooperate, in order to meet all legal requirements,
and furnish qualified carpenters.
Article VII, Section 2:
For jobs only requiring one (1) or two (2) employees, the
Employer will be permitted to work without a certified shop
steward without a time limitation. Any employee who is not
a member of the District Council will be matched 1:1 from
the District Council’s Job Referral List.
Article VII, Section 5:
Notwithstanding any other provisions of this Agreement, the
Employer shall be permitted to hire any and all Carpenters,
except for the Shop Steward and except as otherwise provided
in Article VII, Section 2, without reference to hiring ratios
(i.e., the Employer will be able to hire Carpenters, except as
specifically limited, under so-called full mobility).
Article VII, Section 5(b):
The arbitrator shall be empowered as a remedy to reinstate the
50:50 hiring ratio provisions for the duration of this Agree-
ment for any Employer found to have acted willfully and with
the bad intent to violate the staffing and payrolling require-
ments of this Agreement. Such a remedy would mean that the
individual Employer would be required to hire at least fifty
percent (50%) of Carpenters from the District Council’s Job
Referral List (called an Out of Work List or OWL) without
the ability to make requests.
Article XIX, Section 35:
. . . if at any time during the term of this Agreement the Unit-
ed States District Court for the Southern District of New York
or any other court of competent jurisdiction voids the provi-
sions of Article VII, Section 2 and Article VII, Section 5 (i.e.,
the so-called full mobility hiring provisions), this Agreement
shall become a nullity and the Parties shall return to the terms
and conditions under their collective bargaining agreement
that expired on its terms on June 30, 2011.
III. ANALYSIS
Among other things, Section 7 of the Act gives employees
the right to join a labor organization and the right to refrain
from doing so. Section 8(a)(1) of the Act prohibits employers
from interfering with, restraining, or coercing employees in the
exercise of their Section 7 rights. Similarly, Section 8(b)(1)(A)

cil and to enable the monitor to ascertain whether individuals hired to
perform work as carpenters were being covered by the terms of the
collective-bargaining agreement.
of the Act prohibits a union from restraining or coercing em-
ployees in the exercise of the rights guaranteed in Section 7.
Section 8(a)(3) prohibits, inter alia, discrimination in regard
to hire or tenure of employment to encourage or discourage
membership in any labor organization. However, it does permit
an employer from making an agreement with a lawfully recog-
nized union that would require membership on or after the 30th
day following the beginning of employment or the effective
date of the agreement whichever is the later.
In the construction industry, Section 8(f) of the Act permits
an employer and union to enter into a prehire collective-
bargaining agreement and to contract for a union security
clause of 7 days.
But under either Section 8(a)(3) or Section 8(f), the statute
prohibits an employer to condition the hiring of any employee
on whether he or she is a member of a union or is not a member
of a union.
If the provisions of the contract between The Cement League
and employers performing services in New York City, explicit-
ly required the employers to hire or give preference in hiring
for all or a portion of their work force to members of the NYC
Council, it would follow that such provisions would be unlaw-
ful on their face.
In that circumstance, cases cited by the General Counsel and
the Charging Party would be dispositive. In Bricklayers Local 1
(Denton’s Tuckpointing), 308 NLRB 350, 351 (1992), the
Board invalidated a contract provision that stated that “when
members of Bricklayers Local Union No. 1 . . . are available
they shall constitute at least 80% of the bricklaying force of the
Employers at all times.” In Plasterers’ Local 32, 223 NLRB
486, 490 (1976), the following language in a contract was held
to violate Section 8(b)(1)(A) and 8(b)(2); “it is agreed that at all
times during the progress of any and all jobs, fifty percent
(50%) of all plasterers employed by the contractors, plus the
odd man, if any, shall have been dues paying members of the
local in whose jurisdiction the work is being done, for the six
(6) months preceding employment. The remaining fifty percent
(50%) of the work force may be residents of the area or nonres-
idents at the discretion of the contractor.” In Carpenters Local
43 (McDowell Building & Foundation), 354 NLRB 1013, 1017
(2009), the Board concluded that there was a violation where
the Union enforced a “mobility” clause against any individual
who was not a member of Local 43.
In Newspaper & Mail Deliverers Union (New York Post),
361 NLRB No. 26 (2014), the Board held that the Union violat-
ed the Act when its contracts with certain employers gave hir-
ing preference to persons who had industry wide seniority with
employers having contracts with the Union, irrespective of the
fact that seniority included employment outside of the relevant
collective- bargaining unit.
The point is that these cases all involved situations where
there were contractual provisions that clearly and unambigu-
ously required signatory employers to hire, for all or part of
their work force, persons who were members of a particular
union or whose seniority was based on nonunit length of ser-
vice with employers having contracts with a particular union.
Strictly speaking, the contract provisions in the present case
do not require any employer to hire all or a part of its work
CEMENT LEAGUE 7
force for any project in New York City because such individu-
als are already members of the NYC Council. What they do
require is that if an employer chooses to hire persons who are
nonmembers, then the employer would be required to hire 50
percent of its work force from the NYC Council’s job referral
list that is also called, “the out of work list.” And although it
may be fairly assumed that there is strong probability that the
people on that list would be members of the NYC Council,
there is no showing that the Union prevents or precludes non-
members from registering for the list. (The record doesn’t dis-
close the mechanics of how the list is created, maintained or
utilized.) In this sense, the use by a union of a job referral list
is the equivalent of a hiring hall, whether exclusive or nonex-
clusive. And since the Board has, with some restrictions, sanc-
tioned the utilization of both exclusive and nonexclusive hiring
halls, I think that it would be fair to say that the Charging Party
is not seeking, in the context of this case, for the Board to find
that a collective-bargaining agreement that either requires or
allows the use of a union hiring hall would be unlawful simply
because that would tend to encourage membership in a union
that was a party to such a contract.
The General Counsel and the Charging Party argue that arti-
cles VI and VII encourage employees to become members of
the NYC Council and to drop their membership in the North-
east Council because those provisions state that when an em-
ployer wants to hire employees of its own choosing, the em-
ployees that it hires for a New York City project, who are not
members of the District Council, must be matched, essentially
on a 50–50 basis, from the NYC Council’s job referral list.
It is my understanding that there are employer members of
The Cement League who perform work within New York City
but who also work on projects in New Jersey, Long Island, and
upstate New York. And when they work in those locations,
outside the City, they operate under the contract with the
Northeast Council. Similarly, it is my understanding that there
are employers having a contract with the Northeast Council,
who will obtain jobs within New York City and will operate as
signatories under the auspices of The Cement League’s Carpen-
ters contract. So for example, in situations where an employer,
such as Rogers & Sons Concrete Inc., which ordinarily has
performed work outside of the five boroughs and typically has
employed a steady crew of Northeast Council members, obtains
a job in New York City, it operates under The Cement League
contract.4 And if that employer wants to bring its own work
force to the City, the employees that comprise its steady crew
would be strongly incentivized to transfer their union member-
ship from Northeast Council locals to the NYC Council. This
would be because that crew normally would consist of employ-
ees who ordinarily would not be members of the NYC Council
and as such, only half of them would be eligible for employ-

4 The record shows that Rogers & Sons Concrete Inc. is a construc-
tion industry contractor based in LaGrangeville, New York. It is a
signatory to the contract between the Northeast Council and the Con-
struction Industry Council of Westchester for work done in Hudson
Valley. It is also a signatory to the Cement League collective-
bargaining agreement with the NYC Counsel and therefore it operates
under this latter contract when it utilizes carpenters for projects in New
York City.
ment on a NYC project; with the other half being required to
come from the NYC Council’s job referral list.
The Cement League which is the nominal Respondent did
not file a Brief and from statements made at the hearing, it ap-
pears to me that it is pretty much agnostic about the outcome of
this case.
The NYC Council, as the Party in Interest, did file a Brief.
But its arguments did not question the illegality of the contract
provisions as such. Rather, its defense is that the contract was
approved by United States District Court Judge Richard M.
Berman in the context of a settlement of a civil RICO. (As not-
ed above, that case involved serious allegations of corruption
by union officers including some shop stewards.)
In asserting that the Board should defer to the District
Court’s approval of the collective-bargaining agreement and the
provisions in issue here, the NYC Council asserts:
The anticorruption benefit of this provision is obvious. The
District Council and the government benefit from having local
New York City District Council members present on any job.
If there is any misreporting, underreporting, “working off the
books,” or any other corruption whatsoever on the job, it is
believed that District Council members would have a sound
interest in policing those matters and reporting them. Without
a District Council presence beyond a Shop Steward among
any given signatory employer’s workforce, the corruption that
has plagued the District Council (e.g., “working off the
books,” accompanying payoff schemes, etc.) could be ac-
complished by using strangers drawn from a different labor
pool. In other words, contractors bound by District Council
agreements could simply move to a neighboring locale (e.g.
upstate New York, northern New Jersey, etc.) obtain their
workforces from a Carpenters union affiliate in any of those
places and bring them to New York City, all the while perpet-
uating the same fraud and corruption of years past. There
would be no District Council carpenters tied to the Consent
Decree to police against those corrupt practices.
The Charging Party’s response is:
The Cement League and the NYC District council argue that
the purpose of the new language of Article VI, Section 2 and
Article VII, Section 2 is to mandate that in addition to the
Shop Steward, there are carpenters on the job who have a
stake in ensuring that the contractual wages and benefits are
paid on all hours worked. The merits of the argument, depend
on acceptance of the dubious assumption that NYC District
Council members are less corruptible than other carpenters,
an assumption which seems to be more dubious in light of the
history of corruption which resulted in the District Court’s in-
tervention over the administration of the NYC District Coun-
cil’s collective bargaining agreements. . . .
Whether having NYC Council members, as opposed to
members of other Carpenter locals, on New York jobs would or
would not be advantageous in fighting corruption, this is not an
issue that can or should be decided by me. The fact is that the
NLRB was not a party to the RICO action brought against the
NYC Council and was not asked for and did not give any opin-
ion as to whether the hiring provisions proposed for approval,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
would violate the National Labor Relations Act. Moreover,
there is no indication that the provisions were evaluated in light
of the NLRA. As such the Court’s approval of the contract is
simply not binding on the Board, irrespective of the asserted
public policy considerations. Accordingly, if the contract provi-
sions violate the Act, they need to be remedied. Thus, in Field
Bridge Associates, 306 NLRB 322, (1992), the Board stated:
The Board adheres to the general rule that if the Government
was not a party to the prior private litigation, it is not barred
from litigating an issue involving enforcement of Federal law
which the private plaintiff has litigated unsuccessfully.
Allbritton Communications, 271 NLRB 201, 202 fn. 4. . . .
Underlying this rule is the long-recognized principle that
“Congress has entrusted to the Board exclusively the prosecu-
tion of the proceeding by its own complaint, the conduct of
the hearing, the adjudication and the granting of appropriate
relief. The Board as a public agency acting in the public in-
terest, not any private person or group, not any employee or
group of employees, is chosen as the instrument to assure pro-
tection from the described unfair conduct in order to remove
obstructions to interstate commerce.” Amalgamated Utility
Workers v. Consolidated Edison Co., 309 U.S. 261, 265
(1940). See also National Licorice Co., v. NLRB, 309 U.S.
362–364 (1940). . . . Thus the Board, as a public agency as-
serting public rights should not be collaterally estopped by the
resolution of private claims asserted by private parties…. In
this case, the Board was not a party to the New York State
Court proceedings. Accordingly, we decline to give them a
preclusive effect.
In light of the above, I am inclined to agree with the theory
proposed by the General Counsel and the Charging Party and to
conclude that the provisions of The Cement League’s collec-
tive-bargaining agreement unduly encourage membership in
local unions affiliated with the NYC Council and tend to undu-
ly discourage membership in the locals affiliated with the
Northeast Council.
I am also going to reject the defense that the Board should
defer to the fact that a contract, in the context of the RICO set-
tlement, was approved by Judge Berman. I am doing so despite
the fact that that lawsuit was not between private parties and
involved a branch of the government other than the NLRB. As
noted above, there is no indication that these particular provi-
sions of the collective-bargaining agreement that was submitted
for review and approval were considered in light of the statuto-
ry obligations set forth in the National Labor Relations Act.
Therefore, I conclude that the Respondent, The Cement
League has violated Section 8(a)(1) of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5

5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
ORDER
The Respondent, The Cement League, New York, New
York, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Maintaining and/or otherwise giving effect to article VI,
section 2, article VII, section 2, article VII, section 5, article
VII, section 5(b), and article XIX, section 35 of its collective-
bargaining agreement with the New York City and Vicinity
District Council of Carpenters, that requires the giving of pref-
erence in the hiring or retention of employment to employees
based upon membership or nonmembership in any labor organ-
ization except to the extent permitted by Section 8(a)(3) of the
Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Notify all employer-members of Respondent, bound by a
collective-bargaining agreement with Respondent, that article
VI, section 2, article VII, section 2, article VII, section 5, article
VII, section 5(b), and article XIX, section 35 of the collective-
bargaining agreement between Respondent and the New York
City District Council of Carpenters, effective for the period
July 1, 2011 through June 30, 2015, or any amendments thereto
or successors thereof containing such provisions, are unlawful.
(b) Within 14 days after service by the Region, post at its of-
fice(s) in New York, New York, and any other geographic area
covered by its collective-bargaining agreement with the New
York City and Vicinity District Council of Carpenters, copies
of the attached notice marked “Appendix.”6 Copies of the no-
tice, on forms provided by the Regional Director for Region 3,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. In addition
to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or inter-
net site, and/or other electronic means, if the Respondent cus-
tomarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent since April 21, 2014.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn statement of a responsible official on
a form provided by the Region attesting to the steps the Re-
spondent has taken to comply.

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
CEMENT LEAGUE 9
Dated, Washington, D.C. May 21, 2015
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain or otherwise give effect to any
agreement with the New York City and Vicinity District Coun-
cil of Carpenters requiring any employer bound by the collec-
tive-bargaining agreement to give preference in hiring or reten-
tion of employment to employees based on membership or
nonmembership in any labor organization, except to the extent
permitted by Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL notify all employers bound by our collective-
bargaining agreement that any and all contract provisions or
portions of contract provisions giving unlawful hiring prefer-
ence based upon considerations of union membership, includ-
ing article VI, section 2, article VII, section 2, article VII, sec-
tion 5, article VII, section 5(b), and article XIX, section 35 will
be given no further force or effect.
THE CEMENT LEAGUE