United Brotherhood Of Carpenters And Joiners Of America, Local 743, Et Al.

National Labor Relations Board - Board Decisions

Jan 31, 1986

278 N.L.R.B. 440 (N.L.R.B. 1986)

440 DECISIONS OF NATIONAL LABOR RELAT IONS BOARD
United Brotherhood of Carpenters and Joiners of
America, Local 743, et al . and Longs Drug
Stores, Inc. Case 31-CE-180
31 January 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 27 September 1985 Administrative Law
Judge Gerald A. Wacknov issued the attached de-
cision. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a limit-
ed exception. The Charging Party filed an answer-
ing brief in opposition to the exceptions of the Re-
spondent.
The National Labor Relations Board has delegat-
ed 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.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, United
Brotherhood of Carpenters and Joiners of America,
Local 743, et al., Los Angeles, California, its offi-
cers, agents, and representatives, shall take the
action set forth in the Order.
Donald P. Cole, Esq., for the General Counsel.
Gordon K. Hubel, Esq. (Levy, Ansell & Goldman), of Los
Angeles, California, for certain Respondents.
Paul Posner, Esq.., of Marina Del Rey, California, for Re-
spondent Local 25.
John T. DeCarlo, Esq. (DeCarlo and Connor), for Re-
spondent Local 743 and 22 additional Respondents.
Michael L. Wolfram, Esq. (Morgan, Lewis & Bockius), for
the Charging Party.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge,
Pursuant to notice, a hearing with respect to this matter
was held before me in Los Angeles, California, on 11
July 1985. The initial charge was filed on 5 August 1983,
by Longs Drug Stores, Inc. (Employer). Thereafter, on
31 October 1983, the Regional Director for Region 31 of
the National Labor Relations Board issued a complaint
and notice of hearing alleging a violation by United
Brotherhood of Carpenters and Joiners of America,
Local 743 (Respondent Local 743) of Section 8(e) of the
National Labor Relations Act.
Thereafter, on 21 November 1983 an amended charge
was filed and on 16 January 1984 an amended complaint
and notice of hearing was issued alleging a violation by
all the named Respondents of Section 8(e) of the Act.
At the hearing in lieu of any testimonial evidence, the
parties entered into a stipulation of facts, with supporting
documentary evidence. Since the close of the hearing,
briefs have been received from the General Counsel and
from John T. DeCarlo, attorney for Respondent Local
743, and 22 additional Respondents.
On the entire stipulated record and consideration of
the briefs submitted, I make the following
FINDINGS OF FACT
L JURISDICTION
The Employer, a California corporation with general
offices located in Walnut Creek, California, owns or
leases and operates retail drugstores. In the course and
conduct of its business operations, the Employer annual-
ly purchases and receives goods and services valued in
excess of $50,000 directly from suppliers located outside
the State of California, and annually derives gross reve-
nues in excess of $500,000.
It has been stipulated and I find that the Employer is
now, and has been at all times material, an employer en-
gaged in commerce and in a business affecting commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
IL THE LABOR ORGANIZATIONS INVOLVED
It-has been stipulated, and I find that, the Respondents
are, and have been at all times material , labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The principal issue raised by the pleadings is whether
the Employer, under the circumstances, is "an employer
within the construction industry" within the meaning of
the first proviso of Section 8(e) of the Act, thus permit-
ting the Respondents to enforce certain contract or sub-
contract provisions embodied in a collective-bargaining
agreement between the Employer and the Respondents.
B. The Facts
Since 1971 the Employer has entered into various
memorandum agreements whereby it agreed to adopt
and be bound by the terms and conditions of succeeding
Carpenters Master Labor Agreements. On 20 July 1983
the Employer entered into a similar memorandum agree-
ment effective from 1 July 1983 until 1 July 1984, and
from year to year thereafter. The memorandum agree-
ment specifically contains the following language which
is similar in effect to certain language contained in the
prior Carpenters Master Labor Agreements.
The Contractor agrees that he or any of his subcon-
tractors on the job site, will not contract or subcon-
tract work to be done at the site of construction, al-
278 NLRB No. 62
CARPENTERS LOCAL 743 (LONGS DRUG)
teration, painting , repair of the building , structure
or other work , except to a person, firm or corpora-
tion party to an appropriate, current labor agree-
ment with the appropriate Union , or subordinate
body, associated with the Building and Construction
Trades Department AFL-CIO- or with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or an affiliate
thereof.
The Employer owns or leases and operates approxi-
mately 27 drugstores in the geographic area covered by
the collective -bargaining agreement with Respondents.
The Employer does not have, and is not required to
have, a general contractor's license by virtue of Califor-
nia Business and Professions Code Sec. 7044.
When the Employer has a new facility built or an ex-
isting facility renovated or remodeled, it contracts with
and engages a general contractor to perform the onsite
construction work, including rough and finish carpentry
work. However, the Employer employs finish carpenters
to perform the onsite construction work of installing fix-
tures. Installation of fixtures is covered by the aforemen-
tioned Carpenters Master Labor Agreement, and when-
ever the Employer has employed carpenters it has paid
wages and benefits pursuant to the applicable agreements
referred to above and has secured carpenter employees
who were dispatched from Respondent unions in accord-
ance with the requirements of such agreement.
About 3 May 1983 the Employer entered into a con-
tract with Westerly Wood Construction (Wood) where-
by Wood was engaged by the Employer as general con-
tractor for the construction of a drugstore (the Project)
located in a shopping center development in Bakersfield,
California. Consistent with that contract, the Employer
did not select or contract with any of the subcontractors
on the project. The Employer, however, contracted di-
rectly with an architect and the architect retained con-
sulting engineers for the project. At all times up to the
present, the Employer has been the owner of the drug-
store building and all improvements thereon. The project
is now completed. The drugstore is a one-story facility
with an area of 28,250 square feet. At all times while
Wood was engaged on the project, Wood was not a sig-
natory to any collective-bargaining agreement with any
of Respondents or any other labor organization. Wood
subcontracted the electrical, sheet metal, drywall and
taping, insulation, concrete, and painting work to six sep-
arate nonunion subcontractors.
About 8 June 1983, Respondent Local 743 filed a
grievance with the Independent Contractors Joint Ad-
justment Board (the Joint Board) charging that the Em-
ployer violated the 1980-1983 collectivei-bargaining
agreement, by "contracting bargaining unit work to non-
signators" and "further violating the work preservation
and area standards provisions of the agreement." The
Employer is bound by, the grievance and arbitration pro-
visions of the contract. The grievance was scheduled for
hearing and determination by an arbitrator and was to be
held on 10 August 1983. That hearing has been post-
poned indefinitely pending the final resolution or judg-
ment in the case herein.
441
The Employer employs, at and out of its Walnut
Creek, California place of business, Project Manager Al
Arrigoni and Project Coordinator Steve Chandler,
whose responsibilities included overseeing the Project on
behalf of the Employer. The construction work appar-
ently began about 2, June 1983 and was apparently com-
pleted about 2 February 1984. Chandler was designated
as the Employer's construction manager and visited the
project on 25 days during this period, for the purposes of
confirming that construction and development of the
project were consistent with the Employer's architectur-
al plans and specifications. Arrigoni visited the project
on 3 days for the purpose of reviewing Chandler's job
performance. A superintendent employed by Wood was
responsible for the day-to-day supervision of the con-
struction of the project.
Between 19 January and 2 February 1'984, the Em-
ployer hired 14 carpenters referred by Respondent Local
743's hiring hall for the purpose of installing fixtures at
the Project. Some or all these carpenters worked for the
Employer on the Project on each and every day (except
for Saturdays and Sundays) during the approximately 14-
day period. None worked after 2 February 1984. On
about 11 days during this period union carpenters em-
ployed by the Employer and nonunion electricians em-
ployed by Anderson Electric worked at the site simulta-
neously, and about 4 of these days certain of the individ-
uals worked in close proximity on the installation and
wiring of fixtures . In addition, one union carpenter fore-
man employed by the 'Employer also worked on the
project during the 14-day period in question.
The maximum number of employees engaged in the
building and construction industry employed by the Em-
ployer on any given month in 1983 in the geographic
area covered by the collective-bargaining agreement was
27,, and no such employees were employed during 7
months of that year. In contrast, the Employer employed
over 800 employees during each of the months in 1983
who were not engaged in the building and construction
industry-for example, those engaged in operating the
retail drugstores. The corresponding figures for January
and February 1984 show 22 and 21 construction employ-
ees, respectively, and 761 and 821 other employees, re-
spectively.
At no time since 1 January 1983 have Respondents
picketed or threatened to picket the Employer or picket-
ed at any of the Employer's stores, construction sites, or
stores under construction. To date Respondents have
continued to supply the Employer with carpenters when
requested.
Since 1971 the Employer has filed with the Carpenters
Trust Funds monthly fringe benefit reports entitled "Em-
ployer's Monthly Reports to Trustees," and made fringe
benefit contributions on-behalf of the construction em-
ployees it has employed.
C. Analysis and Conclusions
As noted above, the principal issue in this stipulated
proceeding is whether the Employer is "an employer in
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the construction industry" within the meaning of the first
proviso of Section 8(e) of the Act.'
The Board has made it clear that whether an employer
is "an employer in the construction industry" within the
meaning of the first proviso of Section 8(e) of the Act is
dependent on the circumstances of each situation, rather
than on the principal business of the employer. Thus, in
Los Angeles Building & Construction Trades Council
(Church's Fried Chicken), 183 NLRB 1037 (1970), the
Board found that an employer engaged primarily in the
retail food business was engaged in the construction in-
dustry because it acted as its own general contractor in
the construction of its own retail stores and thereby nec-
essarily retained control over its subcontractor's labor re-
lations.
In contrast, in Columbus Building & Construction
Trades Council (Kroger Co.), 149 NLRB 1224 (1964),
Kroger entered into an arrangement with a prospective
lessor who purchased property selected by Kroger and
thereafter contracted with a nonunion general contractor
for the construction of a shopping center, most of which
was to be leased by Kroger and another tenant, a subsidi-
ary of Kroger. When the keys to the store were turned
over to Kroger by the contractors, Kroger completed
the work with union carpenters, hired through the union,
and engaged a number of union contractors, to perform
sheet metal work, insulation work, and electrical work.
Under these circumstances the Board concluded that
Kroger "is an operator of a chain of retail stores and is
not in the circumstances of this case 'an employer en-
gaged in the construction industry' but was merely the
prospective lessee of Schottenstein, the owner of the
land on which the shopping center was to be built."
Similarly, in a later Kroger case2 the Board, placing its
reliance on the factual circumstances of the case and its
prior fording in the aforementioned Kroger decision,
again determined that Kroger was not an employer in
the construction industry within the meaning of the first
proviso to Section 8(e) of the Act.
The General Counsel maintains that an employer must
act as its own general contractor to fall within the provi-
so, while the Respondents, distinguishing the Kroger
cases, maintain that the Employer herein, as the owner
of the building, has retained effective control of all
phases of the construction project and that, therefore,
the Respondents should lawfully be permitted to require
the Employer to abide by the contractual arrangement it
Sec. 8(e) provides, in pertinent part, as follows:
It shall be an unfair labor practice for any labor organization and
any employer to enter into any contract or agreement , express or im-
plied, whereby such employer ceases or refrains or agrees to cease
or refrain from handling , using, selling, transporting or otherwise
dealing in, any of the products of any other employer, or to cease
doing business with any other person, and any contract or agreement
entered into heretofore or hereafter containing such an agreement
shall be to such extent unenforceable and void, Provided, That noth-
ing in this subsection (e) shall apply to an agreement between a labor
organization and an employer in the construction industry relating to
the contracting or subcontracting of work to be done at the site of
the construction, alteration, painting, or repair of a building, struc-
ture, or other work.
2 Columbus Building & Construction Trades Council (Kroger Co.), 164
NLRB 516 (1967)
agreed to, namely, to refrain from hiring nonunion con-
tractors on the project.
From the foregoing cases it appears that whether an
employer not primarily in the construction business may
be deemed to be an employer in the construction indus-
try for purposes of the first proviso to Section 8(e) is de-
pendent on the degree of control over the construction-
site labor relations it elects to retain. As its own general
contractor, an employer retains absolute control. Thus,
as stated in Church's Fried Chicken, supra, quoting from
the legislative history of the proviso (2 Leg. Hist . 1425(1)
(NLRA 1959)):
The case of the building and construction industry
represented probably the most flagrant injustice,
where a general contractor is, in effect, entirely in
control of the kind of labor relations taking place
on a jobsite which he runs. He lets subcontracts
based upon price, responsibility, and the ability to
handle labor relations.
He lets those contracts, very well knowing the kind
of labor relations which may exist within any of the
subcontractor companies. . . . He is not innocent of
any unfair labor policies on the part of a subcon-
tractor.
Similarly, in situations where an employer hires a gen-
eral contractor but nonetheless regularly makes deci-
sions, including the selection of subcontractors, normally
within the scope of a general contractor's duties and au-
thority, it would appear that the employer retaining such
authority is tantamount to a general contractor. And this
reasoning would appear to hold true regardless of
whether the employer is the owner of the premises under
construction, or a prospective lessee.
While the aforementioned cases are readily distinguish-
able from the instant factual situation, I conclude that the
actual construction work the Employer elected to re-
serve to itself was of such limited scope that the Em-
ployer did not thereby become engaged in the construc-
tion industry within the meaning of the proviso. Thus
the Employer utilized its own construction employees
for a very limited purpose during the final 14 days of an
8-month construction project, and there is no evidence
that it became directly involved with the labor relations
on the Project until that time. Rather, the sporadic visits
to the jobsite by the Employer's project manager and co-
ordinator were simply for the purpose of insuring that
the work was being performed in compliance with the
plans and specifications. Contrary to the Respondents'
assertions, and in the absence of any persuasive author-
ity, I find that, although the Employer owns the building
and could have elected to become its own general con-
tractor, it does not thereby become an "employer in the
construction industry" within the meaning of the provi-
so.
Nevertheless, the Respondents assert that the Employ-
er, having entered into an agreement that it would hire
only union contractors, should not be permitted to ab-
solve itself of this contractual duty, and should be es-
topped from contesting its status as an employer in the
CARPENTERS LOCAL 743 (LONGS DRUG) 443
construction industry; and that this is particularly as the
Respondents, in reliance on the Employer's contractual
commitments over the years, have furnished carpenters,
on request, through their various hiring halls. I similarly
find this argument of Respondents to be without merit,
particularly as there ` is no showing that the current or
prior contracts were entered into with the mutual under-
standing that the Employer would act as its own general
contractor or would hire only union general contractors.
On the basis of the foregoing, I find that the Respond-
ents, by seeking to enforce the applicable provisions of
the contract through the grievance procedure embodied
therein, have violated Section 8(e) of the Act, as alleged.
See Cooks & Bartenders Local 42 (Clubmen, Inc.), 248
NLRB 604 (1980); Bricklayers Local 2 (Johnson & Son),
224 NLRB 1021, 1024-1025 (1976).
CONCLUSIONS OF LAW
1. Longs Drug Store, Inc. is engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The various named Respondents are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. The Respondents have violated Section 8(e) of the
Act by entering into and enforcing an agreement requir-
ing Longs Drugs, Inc. to hire only union contractors or
union subcontractors for its construction projects, and by
applying those contractual provisions to a construction-
site where Longs Drug Stores, Inc. is not an employer in
the construction industry within the meaning of the first
proviso to Section 8(e) of the Act.
4. The aforesaid unfair labor practice affects commerce
as defined in Section 2 of the Act.
1. Cease and desist from entering into, maintaining,
giving effect to or enforcing those provisions of their
collective-bargaining agreement with Longs Drugs
Store, Inc. to the extent found unlawful herein.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) The various named Respondents shall post at their
offices, meeting halls, and locations where notices to
their members are customarily posted, copies of the at-
tached notice marked "Appendix."4 Copies of the notice,
on forms provided by the Regional Director for Region
31, after being signed by authorized representatives shall
be posted by the Respondents immediately after receipt
and maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
their employees are customarily posted. Reasonable steps
shall be taken to ensure those notices are not altered, de-
faced, or covered by any other material.
(b) Respondents shall notify Longs Drug Store, Inc.
that they shall not seek to apply the provisions of the
collective-bargaining agreement to constructionsites at
which Longs Drug Store is not "an employer in the con-
struction industry" within the meaning of the first provi-
so to Section 8(e) of the Act.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
4 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 Nation-
al 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."
THE REMEDY
Having found that the Respondents violated the Act, I
recommend they be ordered to cease and desist there-
from and take certain affirmative action designed to ef-
fectuate the purposes of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3
ORDER
The Respondent, United Brotherhood of Carpenters
and Joiners of America, Local 743, et al., Los Angeles,
California, their officers, agents, and representatives,
shall
3 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT enter into , maintain , give effect to, or
enforce clauses in our agreement with Longs Drug
Store, Inc., requiring it to hire only union contractors or
union subcontractors on its contruction projects where it
is not "an employer in the construction industry " within
the meaning of the first proviso to Section 8(e) of the
Act.
UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA , LOCAL 743, ET
AL.