The Orgon

National Labor Relations Board - Board Decisions

Jul 11, 1979

243 N.L.R.B. 405 (N.L.R.B. 1979)

TiE ()REGON, SOUTIERN ID)AHO AND WYOMING DISTRICT COUNCIL, OF I.ABORERS
The Oregon, Southern Idaho and Wyoming District
Council of Laborers; and The Washington and
Northern Idaho District Council of Laborers, of the
Laborers International Union of North America;
Oregon-Columbia Chapter, The Associated General
Contractors of America, Inc. and Pacific Northwest
Chapter of the Associated Builders & Contractors,
Inc.
The Oregon, Southern Idaho and Wyoming District
Council of Laborers; and Local 915 Laborers Inter-
national Union of North America, AFL-CIO and
R. A. Chambers & Associates, Inc. and Oregon-Co-
lumbia Chapter, The Associated General Contrac-
tors of America, Inc., Party to the Contract, and
Washington & Northern Idaho District Council of
Laborers, Party to the Contract. Cases 36-CE 17
and 36-CE 19
July II. 1979
DECISION AND ORDER
BY CWAIRMAN FANNIN(; ANt) MEMBERS PINI II.EL
AND TRUESDAI.
On April 26, 1978, Administrative Law Judge Wil-
liam J. Pannier III issued the attached Decision in
these consolidated proceedings. Thereafter, Respon-
dents, the Charging Parties, and the General Counsel
all filed exceptions accompanied by supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
i In adopting the Decision of the Administrative Law Judge. we rely on
the rationale enunciated in the Board's decision in Carpenters Local No 944,
United Brotherhood of Carpenters and Joiners of America. AFL-CIO. and
Carpenters Local No. 235. United Brotherhod of Carpenters and Joiners of
America, AFL-CIO (Woelke and Romero Framing, Inc). 239 NLRB 241
(1978). in finding that the clauses herein would otherwise he protected by the
construction industry proviso to Sec. 8(e) but for the self-enforcement as-
pects of those subcontracting clauses. See International Union of Operating
Engineers, Local No. 701, AFL CIO Oregon-Columbia Chapter, the Associ-
ated General Contractors of America, Inc. (Pacific Northwest Chapter of the
Associated Builders & Contractors, Inc.), 239 NLRB 274 (1978).
Chairman Fanning dissents from his colleagues' conclusion that the
clauses herein are outside the protection of Sec. 8(e) because of self-enforce-
ment provisions. Accordingly, he would dismiss the complaints herein. See
his dissenting opinion in Pacific Northwest Chapter. supra
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that Respondent Oregon-Columbia Chapter.
The Associated General Contractors of' America,
Inc., Portland, Oregon, its officers, agents, successors,
and assigns, Respondents The Oregon. Southern Ida-
ho and Wyoming District Council of Laborers: The
Washington and Northern Idaho District Council of
Laborers, of the Laborers International Union of
North America; The Oregon, Southern Idaho and
Wyoming District Council of Laborers: and Local
915 Laborers International Union of North America,
AFL-CIO, their officers, agents, and representatives
shall take the action set forth in said recommended
Order.
DECISION
SIAII NlI ()F lite CASE
WIlI.IAM J. PANNIIR I11, Administrative Law Judge:
This matter was heard by me in Portland. Oregon, on De-
cember 7, 1977. On September 14, 1977. the Regional Di-
rector for Region 19 of the National Labor Relations Board
issued a complaint and notice of hearing in Case 36 ('E 17
based upon an unfair labor practice charge filed on April
26. 1977, and amended on September 9, 1977.1 alleging the
I Prior to the hearing, The Washington and Northern Idaho District
Council of Laborers. of the Laborers International Union of North America,
moved for dismissal of the charges in Case 36-CE 17 as to it on the ground
of lack of service, Without belaboring the point, it is conceded that the
charge, amended charge. complaint, and amended complaint were each
served initially on this labor organization at an incorrect address in Portland,
rather than at what appears from the record to be its correct address in
Seattle. Washington. By letter dated September 20. 1977. Attorney Hafer
advised that he had just received a cop) of the complaint and had been
unaware previously of the pendency of the matter. However. dunng a discus-
sion with counsel for the General Counsel. he refused to divulge the correct
address of his client. On September 22, 1977. copies of the amended charge
and amended complaint were then served on Hafer and upon his client at
the Seattle address.
Sec. 10(b) of the Act. as well as the National L.abor Relations Board Rules
and Regulations, Series 8. as amended, Sec 102.14, and Statements of Proce-
dure. Series 8, as amended, Sec. 101.4, require that service of a copy of the
charge be made "upon the person against whom such charge is made." Since
the amended charge was ultimately served upon The Washington district
council on September 22, 1977. and given the lack of any dispute regarding
the continuing reaffirmation of the contractual clause alleged to violate Sec
8(e) of the Act. at the very least there was proper service on that labor
organization by September 22, 1977. Moreover. the collective-bargaining
agreement in which the allegedly offending clause appears provides that the
Oregon district council and the Washington district council are "acting
jointly and severally for the purpose of governing the employment of individ-
ual workmen under jurisdiction of the Union." Accordingly. these two labor
organizations are a single statutory representative of all employees and a
single de jure party to the agreement. See, e.g.. Pharmaseal Laboratories, 199
NLRB 324, 325 (1972). In such circumstances, service on one sufficed for
service on both. See Phyllis Whitehead d/b/a P L Cedar Products, 224
NLRB 244. 259 (1976), and cases cited therein. Therefore. since proper' ser-
vice upon the Oregon district council was admittedly made on April 29,
1977. I1 find, in addition. that service upon both labor organizations compos-
ing the joint representative was effective as of that date. However. as the
Oregon district council filed an answer. parallel reasoning dictates that it
suffices for both members of the joint representative. Pharmaseal. supra. Sub-
urban Newspaper Publications, Inc.. 230 NLRB 1215. 1217. fn. 4 (1977). Ac-
cordingly, I deny the General Counsel's Motion for Summary Judgment
against the Washington district council because it did not, itself. file an an-
swer to the complaint.
243 NLRB No. 65
405
[DE(ISIONS OF NATIONAL LABOR RELATIONS BOAR[)
Oregon. Southern Idaho and Wyoming District Council of
Laborers; and The Washington and Northern Idaho Dis-
trict Council of Laborers, of the Laborers International
Union of North America, had violated Section 8(e) of the
National Labor Relations Act. as amended, 29 U.S.C.,
§151, et seq., herein called the Act. On September 20, 1977,
the said Regional Director issued an amended complaint
and notice of hearing, adding Oregon-Columbia Chapter,
The Associated General Contractors of America, Inc., as a
Respondent. On November 7. 1977, the said Regional Di-
rector issued the complaint and notice of hearing in Case
36 CE 19, based upon an unfair labor practice cnarge filed
on July 18, 1977, alleging that The Oregon, Southern Idaho
and Wyoming District Council of Laborers: and Local 915
Laborers International Union of North America, AFIL
CIO, had violated Section 8(e) of the Act. At the hearing on
December 7, 1977, all parties agreed that Case 36 C('E 19
could be consolidated with Case 36 CE 17 lor purposes of
decision.
All parties have been afforded full opportunity to appear,
to introduce evidence, to examine and cross-examine wit-
nesses, and to file briefs. Based upon the entire record, upon
the briefs, and upon my observation of the demeanor of the
witnesses, I make the following:
FINDINGS O F FA(CI
I. JURISDI(IION
Oregon-Columbia Chapter, The Associated General
Contractors of America, Inc., herein called Respondent
Employer, is an association of employers, including R. A.
Chambers & Associates, Inc., herein called Chambers, en-
gaged in all types of construction work throughout the en-
tire State of Oregon and five counties in the southwestern
portion of the State of Washington. The employer-members
of Respondent Employer, including Chambers, have dele-
gated their collective-bargaining authority to Respondent
Employer for the purpose, inter alia, of negotiating and en-
tering into collective-bargaining agreements on their behalf
with the bargaining representatives of their employees, in-
cluding The Oregon, Southern Idaho and Wyoming Dis-
trict Council of Laborers; The Washington and Northern
Idaho District Council of Laborers, of the Laborers Inter-
national Union of North America; and Local 915 Laborers
International Union of North America, AFL-CIO, herein
collectively called Respondent Unions. The employer-mem-
bers of Respondent Employer, in the course and conduct of
their businesses, annually purchase goods, materials, and
supplies valued in excess of $50,000 which are shipped to
them directly from States in the United States other than
the States of Oregon and Washington.
Therefore, I find that at all times material Respondent
Employer and Chambers have been employers within the
meaning of Section 2(2) of the Act engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATIONS INVOI.VED
At all times material, Respondent Unions have each been
labor organizations within the meaning of Section 2(5) of
the Act.
111i. ISSUtI
At issue is whether the subcontractors clause, article VII,
of the collective-bargaining agreement between Respondent
Unions and Respondent Employer violates Section 8(e) of
the Act, both by virtue of its terms and because it permits
resort to self-help for its enforcement.
IV. 111 A i(;tt) Nl AIR I ABI)R PRA( I(K F
A. The C(o//e ir e-Bargaining Agremennl
Under the collective-bargaining agreement between Re-
spondent Unions and Respondent Employer, effective from
June I. 1975, through May 31. 1980, Respondent Unions
are recognized "as the sole collective bargaining agent for
all workmen and Employees falling within the jurisdiction
of this agreement." (Art. VIII, sec. I) The agreement also
contains the following provisions:
Article VII
SUB( O)N IRA( I()RS
Section I. The Employer agrees that all subcontrac-
tors at whatever tier (unless the subcontractor is signa-
tory to this Agreement) shall be signatory to a labor
agreement prior to the commencement of any subcon-
tracted work covered by this Agreement. Such agree-
ment may be for the duration of the project or subcon-
tract and may cover only the subcontracted work and
contain such provisions as may be collectively bar-
gained between the Union and the subcontractor. The
Employer shall promptly notify the Union of all sub-
contractors.
It is expiessly understood and agreed that the Em-
ployer will not contract or subcontract any work cov-
ered by this Agreement without first requiring the sub-
contractor to become signatory to an agreement as
described above.
Section 2. A subcontractor is one who takes over
any part or a complete section of a general contract,
including both the furnishing of material for the per-
formance of' labor on the job, or the performance of
labor only.
Section 3. The Employer shall be responsible and
liable for the payment of all sums of money required
by all terms of this Agreement incurred by the subcon-
tractor. The Union agrees to notify the Employer
within thirty (30) calendar days of any delinquent pay-
ments of wages or any fringe benefits owed by the sub-
contractor, and to further issue a written notice to the
Employer and subcontractor when these payments
have been made. The Union will make all reasonable
efforts under its contract with any subcontractor (and
against all other higher-tier subcontractors, if' any) be-
fore continuing any claim against the Employer. If the
Union does not notify the Employer within the time
specified above, the Employer is relieved of all respon-
sibility for the subcontractor's delinquencies. The
Union shall not hold the Employer liable or respon-
sible for or take any economic action on the Employ-
406
I l OR (i)N, S()ttIIERN IDA)HO AND) WYOMIN( l)ISI RICI' ('OUN('CI Ol l.AB()RERS
er's prollect to collect an_ subcontractor's delinquencies
except those incurred bh the subcontractor tin the Eim-
ploers e project.
Any alleged iolation ofthis Article maN he taken to
any court of competent jurisdicticon for resolution with-
out regard to other provisions for arbitration or settle-
ment of disputes contained in this Agreemenl.
* * . . *
Article XXVI
SIRIKLS AN) I()(KO()t:IS
(a) It is mutually agreed that there will be no strikes
or lockouts, or cessation of work, by either parts. for
the duration of this Agreement. and all disputes arising
under this Agreement shall he submitted to the proce-
dures for the settlement of disputes as provided in this
Agreement. The parties agree that there will be no ces-
sation or stoppage of work because of jurisdictional
disputes.
Article XXVIII
Si- F 11IMINI (I N()N-JURISI)I(IIONAI l)ISPtUI S
Section I. In cases of violation, misunderstanding. or
differences in interpretation of this Agreement. both
parties pledge their immediate cooperation in fllow-
ing the Grievance Procedure set forth herein.
Section 2. In the settlement of disputes arising out of
violation, misunderstanding or difference in interpreta-
tion of this Agreement. the following procedure shall
be followed:
Section 5. Should the parties involved fail to comply
with the findings within five () days after such written
notification by either party or fail to comply with any
of the provisions and/or time limits established in this
Article, unless mutually agreed to extend such limits.
then all means of arbitration shall be considered ex-
hausted.
Either party may take such action as they deem nec-
essary to enforce the findings and time limits and they
shall not be considered in violation of any part of this
Agreement.
In both of the instant consolidated cases. the General
Counsel argues that article VII is secondary and is not pro-
tected by the first, or construction industry. proviso to Sec-
tion 8(e) of the Act under the Supreme Court's interpreta-
tion in Connell Construction Co., Inc. v. Plumber &
Steamfitters Local Union No. 100, etc.. 421 U.S. 616 (1975).
In addition, the General Counsel advances an alternative
self-help theory of violation in both cases. However. these
self-help arguments are rooted in separate provisions of the
agreement in each case. Thus. in Case 36 CE -17 the Gen-
eral Counsel points to article XXVIII, section 5. which al-
lows the parties to "take such action as they deem necessar?
to enforce the findings lapparently either of the hoard of'
adjustment in step 11 or of an arbitrator in step III of that
article] and time limits .... " In ('ase 36 ('E 19 the (Gen-
eral Counsel grounds his argument on article VII, section 3,
which imposes liabilit' on employer-members for the sub-
contractors' payments of all money required by the collec-
tive-bargaining agreement and which concludes with the
commitment "to not hold the employer-members] liable or
responsible for or take auni conomic action on the lem-
plover-member'sl project to collect any subcontractor's de-
linquencies ccpt thosc incttrred bi Ihc xtuhconlralcltor oi,, the
[etnllcer-tnCmher'/ Prolect. " (Emphasis supplied.)'
B. '11c Nature of t/ei Subcontracting alnd l.iahilit ('lhu.vs.
Primnar or Seconarn
It is admitted that Respondent Employer and Ilhe Ore-
gon, Southern Idaho and Wyoming District Council of I.a-
borers; and The Washington and Northern Idaho I)istrict
Council of Iaborers, of the aborers International Union
of North America. have continued to give effect to article
VII, section I, and article XXVIII. section 5. of their agree-
ment and have reaffirmed those clauses since December 27.
1976. It is also conceded that The Oregon. Southern Idaho
and Wyoming District Council of Laborers: and Local 915
Laborers International Union of North America, AFL
CIO. have continued to give effect to article VII, section 3,
and have reaffirmed and attempted to enforce that clause
since June 21, 1977. Accordingly, the "enter into" require-
ment of Section 8(e) of the Act has been satisfied within the
6-month period prior to the filing of each of the charges.
Dan McKinney ('o.. 137 NIRB 649, 653 (1962).
Section 8(e) of the Act prohibits unions and employers
from entering into agreements which allow the latter to,
inter alia. refuse to do business with any other person. The
object of its enactment was to overrule and reverse the prior
interpretations of the Act, permitting such agreements. 8
Kheel, Labor Law., Sec. 39.02 (1975). However. notwith-
standing the breadth of its proscription, Section 8(e) does
not prohibit every agreement to which it could be applied
I In its brief Pacific Northwest Chapter of the Associated Builders & ('on-
tractors. Inc., asserts that additional self-help provisions are also contained
in arts. XVII XX. pertaining to the health and welfare, pension, vacation.
and training trust funds. However. these provisions were not included in the
complaint. and, in contrast to the approach taken in District Council o!
Carpenters ofJ Portland & [ftinit,. e al. (Pacific orthwesi Chapter f he
As.sociated Rudider.s & Contraclors. Inc , 243 NLRB 416 (1979)., the General
Counsel made no argument in his brief based upon the trust fun] articles.
Yet, the same Regional Director issued the complaints In all of these matters,
and the same representative appeared for the General ('ounsel in each. Con-
sequentl,. it can hardls be argued that a possible self-help theory. based
upon arts XVII XX, was unknown to the General Counsel in the instant
matters. To the contrary. it can only be assumed that the General Counsel
made a conscious choice not to proceed on the basis of such a theory In the
Instant case because of a difference in the eidence disclosed during the
invesltigaitons of these matters. In this regard, it should be noted that the
General Counsel was careful to develop evidence pertaining to the trust fund
clauses and their relat!(lnship to the subcontracting clause at issue in the
C('rpenters case. No such effort was made in the nstant case Sec 3(dl of the
Act ests final authority oer the issuance of complaints in the General
Counsel. In view of this tatutory mandale and In light of the different ap-
prolaches tillowed In this case and the ('rentcrnrt case. I make no findings
regarding the aipplicabhilit,. iIt' .ai. of rts \' II XX art VII
407
)DECISIONS OF NAT'IONAIL IABOR RELATIONS BOARD
literally. "ongress. in enacting §8(e), had no thought of
prohibiting agreements directed to work preservation." Na-
tional Woodwork Malu/lzclturers Association el al. v.
N.L.. R. B.. 386 U.S. 612. 640 (1967). The most obvious illus-
tration of such a protected clause is one which proscribes
subcontracting absolutely. Although literally an agreement
not to do business with another person, it is not, of itself; a
violation of Section 8(e) of the Act. since it serves to protect
the work of employees in the unit represented by the union.
See. e.g., Service and Maintenance Emp/lvees' Union,. ocal
No. 399, ,4FL ('10 (Kal Efron, db/a Superior Souvenir
Book (Company), 148 NLRB 1033, 1034 35 (1964). A major
problem. however, arises once the parties go bevond this
point, allowing the employer to subcontract work while re-
stricting the terms upon which it can do so.
In such situations a distinction must be drawn between
restrictions which protect the union's "legitimate interest in
preventing the undermining of work opportunities and
standards of employees in a contractual bargaining unit."
e.g., a primary or work preservation objective, and restric-
tions which go beyond that valid objective by controlling
"the employment practices of firms which seek to do busi-
ness with the employer." General Teamsters Local 386, In-
ternational Brotherhood of Teamsters. ChaufJiurs, Ware-
housemen and Helpers of America (Construction Materials
Trucking, Inc.), 198 NLRB 1038 (1972). "The question is
whether the contract provisions in question extend beyond
the employer and are aimed really at the union's difference
with another employer." Local No. 36, United Association
of Journeyvmen and Apprentices of the Plumbing and Pipe
Fitting Industry of' United States and Canada. A FL ('10, el
al. Detroit Edison Co. v. N.L.R.B., 278 F.2d 858. 864
(D.C. Cir. 1960). For, to satisfy the primary or work preser-
vation purpose, the clause must be "limited to requiring
that subcontractors observe 'the equivalent of union wages,
hours, and the like.'" Local 437, International Brotherhood
of Electrical Workers, AFL CIO (Dimeo Construction Co.).
180 NLRB 420, 421 (1969).
Article VIII, section 1, of the agreement in the instant
case provides that Respondent Unions are recognized as the
representative of "all workmen and Employees falling
within the jurisdiction of this Agreement." While the record
shows that Respondent Employer's employer-members do
not employ such "workmen" on all sites, and at all times
even on sites where they are employed, they do employ
employees covered by the agreement. Consequently, there
is a "principal work unit" whose wages and job opportuni-
ties Respondent Unions have a valid interest in protecting.
American Federation of Television and Radio Artists
(A FTRA), New York Local (Westinghouse Broadcasting
Company, Inc. (Del.)), 160 NLRB 241, 246-247 (1966).
They have chosen to do this through article VII. Since that
article permits unit work to be subcontracted, its legality
must be measured by whether the conditions imposed
therein are "limited to requiring that subcontractors ob-
serve 'the equivalent of union wages, hours, and the like.'"
Local 437. IB£ W (Dimeo Construction Co.)., supra.
Article VII, section I, imposes the requirement that em-
ployer-members' subcontractors "be signatory to a labor
agreement." As the Board observed in Heavy, Highwav,
Building and Construction Teamsters. Committee or North-
ern ('ali/irnia. International Brotherhood o/ 7icamstcers
('hautff'urs, Warehousemen andl elpers of A neri a. et al.
(('alifrnia Dump ruck Oner ,4s.sociation), 227 NLRB
269, 272 (1976):
(Contract clauses which purport to limit subcontract-
ing to employers who are signatories to union contracts
. . . are viewed as not being designed to protect the
wages and job opportunities of unit employees covered
by the contract. but directed at furthering general
union objectives and undertaking to regulate the labor
policies of other employers. Absent a direct relation-
ship o protection of the work of unit employees, such
clauses are considered as hasing an unlawful second-
ary effect and are proscribed by Section 8(h)(4) and e).
As there has been no showing of "a direct relationship to
protection of the work of unit employees" in article VII,
section I, it is a secondary clause.
The ifct that any agreement signed by the subcontractor
can be limited to "the duration of the project or subcontract
and may cover only the subcontracted work" does not alter
that conclusion. No evidence has been presented to show
that in practice such limited agreements are ever signed.
Further, even such a restricted agreement would encompass
such matters as recognition union security, grievance pro-
cedure. and other noneconomic terms. Yet, agreement to
such matters is not needed to preserve the work opportuni-
ties and standards of "workmen" in the principal work unit.
Accordingly, on its face. even such a restricted agreement
would exceed the bounds of the restrictions which a labor
organization can impose to protect its interests. l.ocal 437.
IBEW1' (Dimeo (onstruction ('o.), supra; 7Teamsters l.ocal
386 ((;onstruction Materials Tru(king, In(.), supral, General
Teamsters, Chaujefurs. Warehousemen and Helpers Local
982, International Brotherhood of Teamsters, Chaujeurs,
Warehousemen fnd ith /lpers of America, et al. (Associated
Independent Owner-Operatlorv Inc.). 181 NI.RB 515, 518
(1970).
On its face. article VII. section 3. appears to provide no
more than a mechanism for collecting standard wages and
fringe benefits owed by delinquent subcontractors. See Gen-
eral Teamsters, Local 982 (Associated Independent Owner-
Operators. Inc.). 181 NI.RB at 520, and cases cited therein.
However, the parties stipulated that where the subcontrac-
tor is a nonsignatory, any award for deficient wages and
fringe benefit contributions would be made for the benefit
of those applicants for employment on the out-of-work list
who would have been referred to that site but for the sub-
contract to a nonsignatory employer. The award would not
be for the benefit of nor would any money paid thereunder
be received by employees of the nonsignatory subcontrac-
tor. Consequently. as these payments are used to benefit
union members on the out-of-work list, rather than employ-
ees of the nonsignatory subcontractor, they constitute
"strictly a penalty" and are secondary. Orange Belt District
(ouncil ' Painters 48, A FL ('IO, et al. (('alhoun Drv wall
Companv), 153 NLRB 1196, 1200-01 (1965).'
] The General ounsel also argues that, even when the delinquent subcon-
tractor is signatory to the collective-bargaining agreement and, thus, when
its employees would presumably benefit from the trust fund contributions,
see International nion of Operauing Engineers, 1,icul Union No 12 (Grifith
(ompan et a.)ll 212 NLRB 343 (1974), reversed and remanded 545 F.2d
408
I: ()i ORl(iON, SOUTHERN IDAHO AND WYOMING DISIRICT COUNCIL OF LABORERS
Therefore. I find that article VII has a secondary object.
However. as Respondent Unions argue that it is protected
by the first proviso to Section 8(e) of the Act. consideration
must be directed to that facet of the matter.
C. The Se/lelp Portions of the Agreemlntl
It is settled that, "although a contract within the con-
struction industry proviso to Section 8(e) is exempt from
the operation of that section. it may he enforced only
through lawsuits and not by threats, coercion, or restraint
proscribed by Section 8(b)(4)(B)." Ets-tlokin (orporation.
154 NLRB 839. 840 (1965). enfd. sub noiN. .L.R.B. v. In-
lernational Brotherhood of Eleclrical W'orkers. A'FL ('10.
and its Local Union No. 769. 405 F.2d 159. 162 163 (9th
Cir. 1968). cert. denied 395 .S. 921 (1969). This is so be-
cause Congress. in leaving lawful certain onsite "hot cargo"
agreements, did not intend to change the law prohibiting
nonjudicial enforcement of such contracts. l.ocal ULnion No.
48 of Sheet Metal Workers International As.sociatlon v. 71/c
Ilardv Corporation, 332 F.2d 682. 686-687 (5th Cir. 1964).
The policy underlying that proscription, in turn, was based
upon "practical judgment on the effect of' union conduct in
the framework of actual labor disputes and what is neces-
sary to preserve to the employer the freedom of choice that
Congress has decreed." l.ocal 1976. United Brotherhood ot
Carpenters and Joiners of .4 merica. A FL. t al. [Sandl Door &
Plwood Co.] v .N.L. R.B. 357 U.S. 93, 107 (1958). Thus, it
such self-help clauses were held valid. they could be en-
ibrced by judicial action with the result that "the courts
could be used to protect the very self-help action in support
of a construction site 'hot cargo' clause that Congress
clearly intended to prohibit." Muskegon Bricklajyers Union
#5, Bricklavers, Masons and Plasterers International Union
of Amnerica (AFL -ClO (Greater Muskegon General (on-
tractors Association). 152 NLRB 360, 365 (1965)., enfd. 378
F.2d 859 (6th Cir. 1967).
In the instant matter, article VII, section 3. quoted in
section IV,A, above, provides that no economic action shall
be taken against an employer-member to collect "any sub-
contractor's delinquencies except those incurred by the sub-
contractor on the [employer-member's] project." While this
language might appear to authorize economic action taken
to collect delinquencies incurred while the subcontractor
works on an employer-member's project, there is no evi-
dence that this was the intended meaning of that phrase,
nor is there evidence that the parties have so interpreted it.
To the contrary, article XXVI, subsection (a). of the same
agreement, also quoted in section IV,A above, specifically
prohibits strikes and cessations of work during the term of
the agreement. instead requiring that all disputes arising
under the agreement be submitted to the procedures for
1194 (9th (ir 1977} the provision is secondar. since the subcontractor's
employees could. at best. only derive benefits from the trust funds and would
not receive any amounts paid for wage deficiencies, However. this argument
Is not supported by the record The stipulation entered into by the parties
pertained only to the operation of art. VI. sec 3. as applied to a nonunion
subcontractor. presumably an employer who had not ulized the out-of-
work list to obtain its employee complement. There is no evidence as to who
would be paid the deficient wages should the subcontractor be a party to the
collective-bargaining agreement and, presumably. an employer who had obh-
tained Its employee complement from the out-of-work hls
settling disputes. Moreover the context in which the alleg-
edly offending phrase appears is a clause limiting the cir-
cumstances in which an employer-member can be held lia-
ble or a subcontractor's delinquencies. Thus, the phrase
serves as a limitation upon liability rather than as an autho-
rization to take action against employer-members fr sub-
contractors' delinquencies.
Accordingly. I find that, taken in conjunction with article
XXVI. subsection (a). the last sentence of article VII. sec-
tion 3. does not clearly authorize economic action as a
means or collecting the delinquencies of subcontractors.
Inasmuch as no extrinsic evidence has been produced to
show the contrary and in light of Board policy of not pre-
suming ambiguous clauses to be unlawful (;eileral Team-
.slter., ocal 982 (Associated Independent Owner-Operators,
Inc..), supra. 181 NLRB at 517. and cases cited therein). I
find that it has not been established that article VII. section
3. authorizes economic action to be taken and, thus, that it
is not a self-help clause.
With respect to article XXVIII. section 5 however, a
contrary result is warranted. since it permits the parties to
take whatever action they deem necessary to enforce find-
ings pertaining to article VII. ('onsequently. article
XXVIII. section 5. is not so limited that it precludes "non-
judicial acts of a compelling or restraining nature. applied
by way of concerted self help." Local Union No. 48, Sheet
Metal 4orkers v. Hard., 332 F.2d at 686. It is. of course.
accurate that the immediate object of any sell-help under
this article would be to enlorce the findings and time limits
arising from the grievance and arbitration provisions. Yet,
the Board is not forced to wear blinders, disregarding the
nature of the underlying dispute giving rise to such findings
or in connection with which the time limits of the grievance
procedure have been invoked. Determinations as to
whether enforcement of a clause violates Section 8(e) of the
Act require examination of "all the surrounding circum-
stances." National Woodwork MAlnufacturers Association v.
N.L.R.B.. 386 U.S. at 644. If the underlying claim which
has given rise to self-help action in support of article
XXVIII. section 5. is secondary, then the fact that self-help
is directed immediately to support of that article does not
change the fact that the self-help is a phase of the enforce-
ment mechanism of a secondary contract provision. There-
fore, the presence of the self-help mechanism removes arti-
cle VII from the protection of the first proviso to Section
8(e) of the Act.
D. The Connell Theon
It is also argued that article VII is not entitled to the
protection of the construction industry proviso, notwith-
standing that Respondent Unions are labor organizations.
that Respondent Employer is in the construction industry.
and that it is undisputed that article VII applies to work to
be done at jobsites. The basis for this contention is the Su-
preme Court's decision in Connell Construction ('ompany.
supra, wherein a union (Local 100) sought a subcontracting
agreement from a contractor (Connell) that would restrict
subcontracting of construction site "mechanical work
which the contractor does not perform with his own em-
ployees but uniformly subcontracts to other firms" (421
U.S. at 620) to subcontractors that were parties to a collec-
409
I)EC(ISIONS ()O NA 'IONAI. IABOR RLAIONS BOARI)
tive-hargaining agreement with ocal I(X). he ('ourt con-
cluded that the subcontracting agreement had "a potential
for restraining competition in the business market in wavs
that would not follow naturally from elimination of compe-
tition over wages and working conditions." 421 U.S. at 635.
To reach this result, the ('ourt first held that the subcon-
tracting agreement was not entitled to the "limited nonstat-
utory exemption from antitrust sanctions" which exists un-
der antitrust law due to the "strong labor policy favoring
the association of employees to eliminate competition over
wages and working conditions." 421 U.S. at 622. This was
so because the subcontracting agreement operated to ex-
clude from the market even those subcontractors whose
competitive advantage was not derived from substandard
wages and working conditions; the "most avored nation"
clause in its collective-bargaining agreement with an em-
ployer association would eliminate competition "even on
subjects unrelated to wages, hours and working condi-
tions"; and the subcontracting agreement operated to ex-
clude from the market subcontractors who had collective-
bargaining agreements with other labor organizations.
thereby insuring that only those under contract with ocal
100 would be able to operate within "geographic enclave"
of its jurisdiction. 421 U.S. at 623-625. Thus, the subcon-
tracting agreement was "not entitled to the nonstatutory
labor exemption from the antitrust law." Federal Maritime
Commission et al. v. Pacific Maritime Assn. et al.. 435 U.S.
40, 61, fn. 19 (1978).
The Court next touched on whether such a subcontract-
ing agreement would be entitled to antitrust exemption had
it been part of a collective-bargaining agreement, as distin-
guished from the purely subcontracting agreement which
Local 100 had presented to Connell. It held that it did not
need to resolve this question inasmuch as Local 100 had not
sought to represent Connell's employees, and, accordingly,
the Court was not confronted with the problem: "There can
be no argument in this case, whatever its force in other c on-
texts, that a restraint of this magnitude might be entitled to
an antitrust exemption if it was included in a lawful collec-
tive-bargaining agreement . . . [because] . . . [i]n this case,
Local 100 had no interest in representing Connell's employ-
ees." (Emphasis supplied.) 421 U.S. at 625-626. This, of
course, is not the situation in the instant case. Respondent
Unions are the representative of the employees in the "prin-
cipal work unit," and there is a collective-bargaining agree-
ment, not simply a subcontracting agreement, between the
parties. Moreover, there is no showing that Respondent
Unions are using their agreement to eliminate competition.
Consequently, the instant case arises in another context: in
a labor, not an antitrust, setting. "Even more important is
the Court's suggestion that within a collective bargaining
setting, labor policies may weigh more heavily." Pacific
Maritime Association v. Federal Maritime Commission, el
al., 543 F.2d 395, 404, fn. 21 (D.C. Cir. 1976), reversed on
other grounds 435 U.S. 40 (1978).
This was the background against which the Court consid-
ered, in the third stage of its decision, the applicability of
the first proviso to Section 8(e) of the Act-against the
background of a labor organization whose object was to
seek an agreement "solely as a way of pressuring mechani-
cal subcontractors . . . to recognize it as the representative
of their employees." 421 US. at 631. lThe ('Court concluded
that the proviso could not be applied mathematically, tak-
ing into account only its words. Rather, it held, account
must also he taken of"the statutory setting and the circum-
stances surrounding its enactment." 421 U.S. at 628. In
doing so., the C(ourt noted portions of' the legislative history
and certain decisions, all to the effect that the purpose for
enacting the proviso had been because of "special prob-
lems" arising from the close relationship between contrac-
tors and subcontractors, which had the potential for caus-
ing friction between union and nonunion employees
working together on construction sites.
The C'ourt went on to point out that Local I(X) "does not
suggest that its subcontracting agreement is related to any
of these policies" (421 U.S. at 631), pointing out that Local
100 did not claim to be protecting C(onnell's employees4 and
that the agreement could not protect its own members,
since it was not limited to sites on which they worked and.
even as to those sites on which they did work, did not oper-
ate to preclude subcontracting other work to subcontractors
with nonunion employees alongside whom its members
would then have to work. It is an apparent misconstruction
of this portion of the (onnell decision which leads to most
of the arguments asserting that article VII lies outside the
ambit of the construction industry proviso. For these argu-
ments treat the Court's discussion in the third stage of its
decision as formulating standards for application of the
proviso, when, in fact, the Court appears to be doing no
more than examining Local 100's agreement from all angles
in an attempt to show that it could not possibly satisfy the
purpose underlying enactment of the proviso. In other
words, the arguments treat the Court's language as estab-
lishing minimum standards under the proviso, whereas, in
fact, the C'ourt was examining the outer limits of the prob-
lem presented in the context of Local 100's agreement,
That this is a correct interpretation is shown by the fact
that, in its conclusion, the Court carefully refrained from
saying that the proviso required that subcontracting clauses
in collective-bargaining settings be confined to common-
situs situations. Thus, after reviewing the intent of Congress
in 1959 to prevent "top-down" organizing, the Court con-
cluded that the proviso's "authorization extends only to
agreements in the context of collective-bargaining relation-
ships and, in light of congressional references to the Denver
Building Trades problem, possibly to common-situs rela-
tionships on particular jobsites as well." 421 U.S. at 633.
Certainly, if the Court had intended its decision to establish
standards for the proviso in all situations, including collec-
tive-bargaining settings, there would have been no need to
use the qualification "possibly." To the contrary, as the
Court's ultimate conclusion demonstrates, it was consider-
ing no more than the scope of protection provided by the
proviso for agreements lying outside the bargaining setting
and admittedly intended as no more than a means of ac-
complishing top-down organizing:
We therefore hold that this agreement, which is out-
side the context of a collective-bargaining relationship
Indeed, it would he difficult to see how the subcontracting agreement
could have done so, since it did not apply to Connell's employees, who, while
represented al the time, would be left free to become unrepresented.
410
1 lF OREi()N. SOUIIHERN I[)AHO AND WYOMING I)ISFRICI COUNCIIL OF: IABORERS
and not restricted to a particular obsite. but which
nonetheless obligates (onnell to subcontract work only
to firms that have a contract with l.ocal 100. ma be
the basis of a federal antitrust suit because it has a
potential fr restraining competition in the business
market in was that would not follow naturali from
elimination of competition over wages and working
conditions. 1421 U.S. at 635.J
Indeed, to interpret the Court's discussion as imposing
standards for applying the proviso could lead to the verN
result that the Court sought to prohibit in ('omt'll. For one
of the alternative considerations was the fact that Local
100's agreement would not serve to protect its members
from having to work alongside nonunion employees of sub-
contractors to whom Connell might subcontract work not
covered by the subcontracting agreement. To use this lan-
guage as a test would mean that to qualify for coverage
under the proviso, unions would have to secure agreements
prohibiting subcontracting of all work at the site to employ-
ers whose employees were unrepresented. In other words.
unions would be forced to bargain over nonunit matters to
qualify for the proviso's protection. Aside from the 8(b)(3)
implications of such nonunit bargaining, this result would
lead to agreements with employers not to subcontract non-
unit work -work as to which each of these employers
would be a "stranger" vis-a-ris the scope of their bargaining
relationship with such unions performed by employees
whom the contracting unions, like Local 100, have no inter-
est in representing. Consequently, while the Court's lan-
guage showed how Local 100's subcontracting agreement
could not, in any circumstances, serve to protect its employ-
ees from working alongside nonunion employees, it was not
intended to set forth the requirements which must be met to
have subcontracting clauses in collective-bargaining agree-
ments valid under the first proviso to Section 8(e) of the
Act.
It is, of course, correct that the effect of this conclusion is
to allow top-down organizing to the extent that noneco-
nomic restrictions on subcontracting may be agreed upon in
the circumstances specified in the proviso. Yet, Section 8(e)
of the Act and its first proviso represent an effort to balance
the policy of preventing top-down organizing with that of
mitigating jobsite friction. The choice is one which Con-
gress has made in enacting the proviso. In an effort to avoid
potential jobsite friction, it, in effect, placed a limitation on
the scope of the basic proscription, thereby limiting the ex-
tent to which top-down organizing is prohibited by Section
8(e) of the Act. Nonetheless, "Congress could reasonably
take one firm step toward the goal of eliminating [top-down
organizing] without accomplishing its entire objective in the
same piece of legislation." Califano v. Jobst, 434 U.S. 47, 57
(1977).
It is equally clear that the subcontracting restriction in
Respondents' agreement will not insure, to a certainty, that
Respondent Unions' members will never have to work
alongside nonunion personnel. Nor is that restriction con-
fined to sites and times at which Respondent Unions' mem-
bers will be working. Again, however, this is the result of a
choice which Congress has made in the proviso as to the
means by which its purpose of mitigating potential site fric-
tion is to be attained. Congress could have chosen another
method. But it selected one whereby each union s permit-
ted to have a restrictive subcontracting clause with the con-
tractor whose employees that union represents. The collec-
tive effect of such individual agreements each between a
union representing employees in a principal work unit and
the contractor or subcontractor employing those employ-
ees is a reduced potential for union and nonunion person-
nel working on the same site.' Thus. the fact that Respon-
dent I nions do not have members working on all sites or at
all times does not negate the applicability of the proviso to
article VII. For that article tends to insure that the work of
the principal work unit will be performed by Union em-
ployees and. to that extent, tends to insure that tranquility
on the site will not be disturbed by the presence of non-
union "workmen" pertbrming the work of Respondent
Unions' bargaining unit. In this manner article VII pro-
motes the objective sought by Congress in enacting the pro-
viso.
Conversely. the fact that the subcontracting clause does
not insure against other subcontractors. whose employees
perform work other than that performed by employees in
Respondent Unions' principal work unit, employing non-
union employees on sites where Respondent Unions' mem-
bers are working does not render the proviso inapplicable
to article VII. Certainly. there can be no doubt that Re-
spondent Unions would like to provide such assurance.
However, in the proviso, Congress did not require unions to
seek clauses applying to nonunit work. Nor, to invoke the
protection of the proviso, did Congress require the contract-
ing parties to condition their agreements on the union sta-
tus of employees of other contractors and subcontractors.
Instead, in an effort to mitigate potential jobsite friction,
Congress imposed no requirements beyond those specified
in the proviso. That these requirements do not insure abso-
lutely against the possibility of union and nonunion person-
nel working side by side on jobsites is not fatal to subcon-
tracting agreements negotiated pursuant to the proviso.
since Congress can enact legislation which takes only "one
firm step" in that direction without having to accomplish
"its entire objective in the same piece of legislation." Cali-
fano v. Jobs.t, .supra.
In sum. I find that the rationale of Connell is not appli-
cable to situations, such as that presented here, where there
is a principal work unit for which the union is the bargain-
ing representative, the subcontracting clause pertains to the
subcontracting of unit work, the subcontracting clause is
part of a collective-bargaining agreement with the contrac-
tor who employs the employees in the principal work unit,
and there is no evidence that the subcontracting clause is
being used as a device to achieve ulterior purposes unre-
lated to that collective-bargaining relationship.
V. ItlE EFFEC(I OF 1it1E UNFAIR LABOR PRA II ES UPON
( OMMR(CE F
The activities of Respondent Unions and Respondent
Employer set forth above, occurring in connection with Re-
No evidence has been presented to show that any significant number of
sites on which employer-members work are other than common sites. i.e..
sues on which they were not working alone. but on which other employees,
employed by other contractors and ubcontractors. are also working.
411
DECISIONS OF NATIONAl. I.ABOR RE.ATIONS BOARD
spondent Employer's operations described in Section 1.
above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States and
tend to lead. and have led, to labor disputes burdening and
obstructing commerce and the free flow of commerce.
CO()N(I.USINS 0() LAW
I. Oregon-Columbia Chapter, The Associated General
Contractors of America, Inc., and R. A. Chambers & Asso-
ciates, Inc., is an employer within the meaning )f Section
2(2) of the Act engaged in commerce and in a business
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Oregon, Southern Idaho and Wyoming District
Council of Laborers; The Washington and Northern Idaho
District Council of Laborers. of the Laborers International
Union of North America; and Local 915 Laborers Interna-
tional Union of North America, AFL CIO, are each a la-
bor organization within the meaning of Section 2(5) of the
Act.
3. By entering into, maintaining, and giving effect to self-
help provisions applicable to article VII of their 1975 80
collective-bargaining agreement, Oregon-Columbia Chap-
ter, The Associated General Contractors of America, Inc.;
The Oregon, Southern Idaho and Wyoming District Coun-
cil of Laborers; and The Washington and Northern Idaho
District Council of Laborers, of the Laborers International
Union of North America, violated Section 8(e) of the Act.
4. No other aspects of the agreement mentioned in Con-
clusion of Law 3, above, violated Section 8(e) of the Act.
THE REMEDY
Having found that Oregon-Columbia Chapter, The Asso-
ciated General Contractors of America, Inc.; The Oregon.
Southern Idaho and Wyoming District Council of Labor-
ers; and The Washington and Northern Idaho District
Council of Laborers, of the Laborers International Union
of North America, engaged in certain unfair labor prac-
tices, I shall recommend that they be ordered to cease and
desist therefrom and that they take certain affirmative ac-
tion to effectuate the policies of the Act.6
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER7
Oregon-Columbia Chapter, The Associated General
Contractors of America, Inc., Portland. Oregon, its officers,
agents, successors and assigns, and The Oregon. Southern
Idaho and Wyoming District Council of Laborers; and The
I Absent a showing of special need for extraordinary relief the standard
Board remedy for violations of the type committed here shall be provided.
7 In the event no execeptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall. as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
Washington and Northern Idaho District Council of Labor-
ers, of the Laborers International Union of North America.
their officers, agents, and representatives, shall:
I. Cease and desist from entering into, maintaining. giv-
ing effect to, or enfoircing the self-help portion of article
XXVIII, section 5, insofar as it applied to the subcontrac-
tors clause, article VII, found in their collective-bargaining
agreement, to the extent found unlawful herein.
2. Take the following affirmative action designed to ef:
fectuate the policies of the Act:
(a) Oregon-Columbia Chapter, The Associated General
Contractors of America, Inc., shall post at its business of-
tice(s) and mail to its employer-members copies of the at-
tached notice marked "Appendix A."' Copies of said no-
tice, on forms provided by the Regional Director for
Region 19, after being duly signed by an authorized repre-
sentative of Oregon-Columbia Chapter, The Associated
General Contractors of America, Inc., shall be posted and
mailed immediately upon receipt thereof, and those posted
shall be maintained for 60 consecutive days thereafter, in
conspicuous places. including all places where notices are
customarily posted. Reasonable steps shall be taken by Ore-
gon-Columbia Chapter, The Associated General Contrac-
tors of America, Inc., to insure that said notices are not
altered, defaced or covered by any other material.
(b) The Oregon, Southern Idaho and Wyoming District
Council of Laborers; and The Washington and Northern
Idaho District Council of Laborers, of the Laborers Inter-
national Union of North America, shall post at their busi-
ness offices and meeting halls and shall mail to their con-
stituent member locals on whose behalf they negotiated the
current collective-bargaining agreement copies of the at-
tached notice marked "Appendix B."9 Copies of said notice,
on forms provided by the Regional Director for Region 19,
after being duly signed by authorized representatives of The
Oregon, Southern Idaho and Wyoming District Council of
Laborers; and The Washington and Northern Idaho Dis-
trict Council of Laborers. of the Laborers International
Union of North America, as applicable, shall be posted and
mailed by them immediately upon receipt thereof. and
those posted shall be maintained by them or 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by The Oregon, Southern
Idaho and Wyoming District Council of Laborers; and The
Washington and Northern Idaho District Council of Labor-
ers, of the Laborers International Union of North America,
to insure that said notices are not altered, defaced or cov-
ered by any other material.
(c) Deliver to the Regional Director for Region 19 copies
of the notices which each signs in sufficient number for
posting by Pacific Northwest Chapter of the Associated
Builders & Contractors, Inc., they being willing, at all loca-
tions where notices are customarily posted.
(d) Notify the Regional Director for Region 19, in writ-
a In the event that 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
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
9 See fn. 8.
412
Tlfl' ORI(;ON, SOUTHERN IDAHO AND WYOMING DISTRI(T ('OUNCII. OF I.ABORFRS
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
1 It RllR ORI)I:R:I) that the complaint in ('ase 36
CE 19 herein he. and it hereby is, dismissed in its entirety.
and the complaint in ('ase 36 C 17 herein be. and it
hereby is, dismissed insoftr as it alleges violations of the
Act not specifically found herein.
APPENDIX A
Noliw To EMPIlc Ylis
P()SrIF) BY ORI)ER ()I 111:
NA IONAI LABOR R IAI I()ONS BARI)
An Agency of the United States Government
Wl wit.l. NOI enter into, maintain, give effect to, or
enforce that portion of article XXVIII. section 5, per-
mitting "such action as [deemedj necessary." to the ex-
tent that such action is authorized to maintain, give
effect to, or enforce the subcontractors clause, article
VII, of our collective-bargaining agreement with The
Oregon. Southern Idaho and Wyoming District Coun-
cil of Laborers; and The Washington and Northern
Idaho District Council of Laborers, of the Laborers
International Union of North America. and to the ex-
tent that article XXVIII. section 5, violates Section 8(e)
of the National Labor Relations Act, as amended.
OREGO(N-CO. UMBIA CHIAPIER, THt ASSO('IAI-I)
GENERAl CONIRA('IORS Of AMERI(A, IN(.
APPENDIX B
No ll( 1() MIMt11RS
PosI) B ORDEI)IR ( 111t
NAl()NAI LABHOR RlArI()Ns BOARD
An Agency of the United States Government
Wl: wII. N enter into. maintain, give effect to, or
enforce that portion olf article XXVIII, section 5. per-
mitting "such action as [deemed] necessary," to the ex-
tent that such action is authorized to maintain, give
effect to, or enforce the subcontractors clause, article
VII. of our collective-bargaining agreement with Ore-
gon-Columbia Chapter, the Associated General Con-
tractors of America. Inc., and to the extent that article
XXVIII, section 5, violates Section 8(e) of the National
Labor Relations Act, as amended.
TIli ORE(iON, SOUTHERN I)AI() AND WYOMIN(G
DlslRI(I COIUN(CII OF LABO)RRS
lTi WASHIN(il(ON ANDt) NORIHIRN IDAIIO Ds-
TRI(I CouN( Il. OF- LABOREIRS, ()F I 1 LABORIRS
INIIRNATIONAI UNION OF NORIH AMERICA
413