Building Material And Dump Truck Drivers, Teamsters Local Union No. 36

National Labor Relations Board - Board Decisions

Dec 5, 1985

277 N.L.R.B. 970 (N.L.R.B. 1985)

970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Building Material and Dump Truck Drivers, Team-
sters Local Union No. 36, affiliated with the
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America
(Nelson & Sloan) and Hofer & Sons = Equipment
Rental. Cases 21-CC-2825 and 21-CE-328
5 December 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 27 August 1984 Administrative Law Judge
Russell L. Stevens issued the attached decision.
The Respondent and the Charging Party filed ex-
ceptions and supporting briefs, and the General
Counsel, the Charging Party, and Intervenor Con-
rock Company filed briefs answering the Respond-
ent's exceptions.
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, I and
conclusions as amended, to amend his recommend-
ed Remedy, and to adopt the recommended Order
as modified.
The Charging Party has excepted to the judge's
failure to find that the Respondent's demand that
Nelson & Sloan pay $4749.20 as an additional con-
dition for the cessation of its illegal picketing was
also coercive behavior violative of Section 8(b)(4).
The Charging Party urges that we make this find-
ing and in consequence modify the judge's recom-
mended Remedy and Order to include reimburse-
ment of the above sum to Nelson & Sloan. We find
merit in this exception.
We affirm the judge's conclusion that article
IV(o) of the collective- bargaining agreement be-
tween the Respondent and Nelson & Sloan is viola-
tive of Section 8(e).2 As more fully detailed in the
judge's decision, on 2 March 1984 the Respondent,
in seeking to enforce the unlawful contract provi-
sion, set up pickets outside Nelson & Sloan's facili-
ty, thus inducing and encouraging Nelson &
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 In affirming the judge's conclusion, we find it unnecessary to rely on
the substance of fn. 12 of the judge's decision. It is clear in the circum-
stances of this case that the Respondent had no valid, primary objective
with respect to its maintenance of art. IV(o), and this is sufficient to sus-
tain the violation
Sloan's employees to refuse to report for work.
The judge found and we agree that this conduct
violated Section 8(b)(4)(i)(A) and (B). Shortly
thereafter, the Respondent conditioned removal of
the pickets on Nelson & Sloan's agreement to cease
using the services of the Charging Party and on its
payment of $4749.20 to the union trust fund. This
sum apparently was the result of computations
made pursuant to a penalty formula outlined in 'ar-
ticle IV(o), the illegal contract provision. Nelson &
Sloan effectively complied with both conditions
and the pickets were withdrawn.
The judge concluded and we agree that the Re-
spondent's conditioning the removal of the pickets
on Nelson & Sloan's termination of its subcontrac-
tual relationship with the Charging Party violated
Section 8(b)(4)(ii)(A) and (B). However, he made
no legal finding with respect to the Respondent's
second condition, the trust fund payment. In our
view the payment demand as a condition for re-
moval of the pickets, like the condition that Nelson
& Sloan cease doing business with the Charging
Party, was a part of the Respondent's scheme to
enforce coercively a contract provision unlawful
under Section 8(e). Further, it tended to reinforce
the Respondent's requirement that Nelson & Sloan
no longer utilize the Charging Party's services.
Thus this second condition was clearly a part of
the Respondent's coercive conduct violative of
Section 8(b)(4)(ii)(A) and (B). Accordingly, pursu-
ant to Section 10(c), we find that it will effectuate
the policies of the Act to order that the Respond-
ent reimburse Nelson & Sloan in the amount of
$4749.20, with interest. See, e.g., Teamsters Local
814 (Santini Bros.), 208 NLRB 184, 201 (1974),
enfd. 546 F.2d 989 (D.C. Cir. 1976), cert. denied
434 U.S. 818 (1977). See also Shepard v. NLRB,
459 U.S. 344 (1983).
AMENDED CONCLUSIONS OF LAW
In Conclusion of Law 4, after the phrase "on
Nelson and Sloan's agreement to cease doing busi-
ness with Hofer" add the phrase "and on the pay-
ment of $4749.20 to the union trust fund,".
AMENDED REMEDY
Add the following to the judge's recommended
Remedy: "Said affirmative action will include reim-
bursement by the Respondent of $4749.20 to
Nelson & Sloan, with interest computed in accord-
ance with the formula set out in Florida Steel Corp.,
231 NLRB 651 (1977).3
3 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
277 NLRB No. 102
TEAMSTERS LOCAL 36 (NELSON & SLOAN)
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Building Material and Dump Truck
Drivers, Teamsters Local Union No. 36, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, San Diego, California, its officers, agents, and
representatives, shall take the action set forth in the
Order as modified.
1. Delete paragraph 1(d).
2. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly.
"(b) Reimburse Nelson & Sloan in the amount of
$4749.20 with interest computed as described in the
remedy section of this decision."
3. Substitute the attached notice for that of the
administrative law judge.
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, seek to en-
force or enforce article IV, paragraph (o) of the
San Diego County Rock Producers Agreement for
1982-1985, to the extent that said provision violates
Section 8(e) of the Act.
WE WILL NOT picket, threaten to picket, or
threaten to continue picketing Nelson & Sloan,
where an object thereof is to force or require
Nelson & Sloan to enter into or enforce the afore-
said article IV, paragraph (o), to the extent that
said provision violates Section 8(e) of the Act, or
to enter into any other agreement prohibited by
Section 8(e) of the Act.
WE WILL NOT picket, threaten to picket, or
threaten to continue picketing Nelson & Sloan,
where an object thereof is to force or require
Nelson & Sloan to cease doing business with
Hofer, or any other person engaged in commerce.
WE WILL withdraw any and all grievances filed
pursuant to the San Diego County Rock Producers
Association Agreement for 1982-1985, seeking to
enforce article IV, paragraph (o) thereof, to the
extent said provision violates Section 8(e) of the
National Labor Relations Act.
WE WILL reimburse Nelson & Sloan in the
amount of $4749.20, with interest, said sum having
971
been paid pursuant to our unlawful enforcement of
article IV, paragraph (o) above.
BUILDING MATERIAL AND DUMP
TRUCK DRIVERS, TEAMSTERS LOCAL
UNION No. 36, AFFILIATED WITH THE
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMER-
ICA
Theodore R. Scott, for the General Counsel.
Richard D. Prochazka , of San Diego , California , for the
Respondent.
James K. Smith Esq. (Gray, Cary, Ames & Frye), of San
Diego, California, for the Charging Party.
David F Fraustman, Esq. (Latham & Watkins), of San
Diego, California , for Conrock Company.
DECISION
STATEMENT OF THE CASE
Russell L. Stevens, Administrative Law Judge. This
case was tried in San Diego , California, on June 11 and
12, 1984.1 The charge in Case 21-CE-328 was filed Feb-
ruary 24 by Hofer & Sons Equipment Rental (Hofer).
The original charge in Case 21-CC-2825 was filed
March 1 by Hofer, and the amended charge in that case
was filed by Hofer on March 2. By order dated April 2
the Regional Director for Region 21, NLRB consolidat-
ed two cases for trial and on the same date issued the
complaint . The complaint alleges that Building Material
and Dump Truck Drivers, Teamsters Local Union No.
36, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (Respondent or Union) violated Section
8(b)(4)(i), (ii)(A) and (B), and Section 8(e) of the Nation-
al Labor Relations Act (the Act).
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses , to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed by the
General Counsel, the Charging Party (Hofer), and Inter-
venor, Conrock Company (Conrock).
On the entire record, 2 and from my observation of the
witnesses and their demeanor , I make the following
FINDINGS OF FACT
1. JURISDICTION
At all times material Nelson & Sloan, a California cor-
poration, has been engaged in the production and deliv-
ery of ready-mix concrete and aggregate sand and gravel
in Southern California. In the normal course and conduct
of its business operations, Nelson & Sloan has, during the
past 12-month period, purchased and received goods and
' All dates are within 1984, unless otherwise stated.
2 By document dated June 11, counsel for Conrock Company (Interve-
nor) moved to intervene The motion was not opposed, and was granted
by me at trial
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
products valued in excess of $50,000 directly from sup-
pliers located outside the State of California.
I find that Nelson & Sloan is, and at all times material
has been, an employer engaged in commerce and in a
business affecting commerce within the meaning of Sec-
tion 2(6) and (7) and Section 8(e) of the Act, and an em-
ployer and a person engaged in commerce within the
meaning of Section 8(b)(4)(i), (ii)(A) and (B) of the Act.
Hofer is, and at all times material has been, engaged in
the business of mining and transporting sand in Southern
California, and at all times material herein has been a
person engaged in commerce within the meaning of Sec-
tion 8 (b)(4)(i), (ii)(A) and (B) of the Act, and a person
within the meaning of Section 8(e) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is, and at all times material has been, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background3
Nelson & Sloan is a producer of ready -mix concrete,
and a sand and gravel operator . Kenneth Monson is
Nelson & Sloan 's executive vice president and general
manager.
At times relevant, Nelson & Sloan 's principal source of
sand used in its ready -mix concrete operation was the
Sweetwater Reservoir , located on land owned by the
South Bay Irrigation District (District). On August 22,
1979, the District granted to Nelson & Sloan a license to
take sand from the Sweetwater Reservoir for the price of
75 cents per yard, with a minimum yearly total. The li-
cense provided , inter alia, that it was not assignable
"without the written consent of Owner [note : the Dis-
trict] first had and obtained."
Sometime in 1981 , on a date not established at trial,
Nelson & Sloan ceased its mining of sand at the Sweet-
water Reservoir, and turned to subcontractors for the
sand required by its operations . Nelson & Sloan sold the
equipment it had been using to mine and screen sand, but
did not lay off any employees. It retained all its truck
and equipment drivers, and much of its transportation
fleet. Some transportation equipment was placed in a dis-
posal area, and part of that equipment later was sold. On
ceasing to mine sand , Nelson & Sloan relied on David
Martin Company to perform that work.
On July 27, 1982, Nelson & Sloan entered into an
agreement with Hofer , pursuant to which Hofer con-
tracted to dig, screen , load and transport sand from the
Sweetwater Reservoir site to Nelson & Sloan 's plants 10
and 13 (Chula Vista and Lakeside). Hofer used its own
employees to dig, screen , and load the sand , and used its
own employees and equipment, as well as those of inde-
pendent owner-operators , to transport the sand from
S This background summary is based on credited testimony and evi-
dence not in dispute
Sweetwater Reservoir to the Nelson & Sloan plants.4
Nelson & Sloan did not assign its District license to
Hofer , and Hofer does not make any payments to the
District. Nelson & Sloan continues to make regular pay-
ments to the District pursuant to its license , and pays
Hofer $4.75 per cubic yard for sand dug, processed, and
delivered by Hofer.5
Nelson & Sloan is a member of the San Diego County
Rock Producers Association , which has had a series of
collective-bargaining agreements with Respondent. The
most recent agreement is effective from September 1,
1982, through August 31, 1985. The agreement provides,
inter alia:
ARTICLE IV
(o) For the purpose of preserving work and job op-
portunities for drivers -employees covered by this
agreement , the employer shall not utilize these serv-
ices of any other person to perform driving work
covered by this agreement, provided , however, that
after all of the employer's operable equipment of a
particular type (mixer truck, end dump or bottom
dump aggregate truck, cement tanker, etc .) has been
deployed and provided the driver (drivers) of the
effected equipment report to work as scheduled the
employer may utilize the services of owner -opera-
tor.
When the employer hires trucks through a broker,
or otherwise engages the services of owner-opera-
tors, drivers of such trucks shall clear through the
union prior to starting work if possible , and in any
event , an owner-driver shall clear through the
union prior to starting work on the second day.
Truck owner-operators must prove registered
and/or legal ownership to the union.
In the event the Employer is found, by a committee
made up of an equal number of Employer and
Union representatives from the negotiating commit-
tees, to have violated any portion of this provision,
the Employer shall immediately pay for each viola-
tion or for each owner-operator with respect to
whom the Employer is in violation , a sum equal to
one day's pay at the highest hourly rate covering
wage and fringe benefit costs under this agreement
for each day or portion thereof the violation oc-
curred . Such monies shall be payable to the San
Diego County Teamsters' Health and Welfare Trust
Fund.6
On January 16, 1984, Respondent's vice president and
business agent, Daniel Miller, wrote a letter to Monson:
4 Nelson & Sloan uses some of its own transportation equipment to
carry sand during slack periods
5 Monson and Hofer credibly testified that the District granted Nelson
& Sloan the right to have Hofer dig, process, and move the sand under
Nelson & Sloan 's license
6 The agreement of August 16, 1980, to August 31, 1982, had an identi-
cal provision.
TEAMSTERS LOCAL 36 (NELSON & SLOAN) ,
Dear Sir:
On Tuesday, Jan. 10, 1984 it came to our atten-
tion that Nelson-Sloan appears to be in violation of
Article XV of our current collective bargaining
agreement. Hofer and Son Trucking and/or Hofer
& Sons Equipment have been doing bargaining unit
work at the "Sweetwater Pit." Local #36 was not
notified in writing and was not given a reasonable
opportunity to discuss the matter before the actual
change in operation took place.
Local #36 hereby requests to meet with you as
soon as possible to settle this dispute.
The reference to January 10, 1984, was based on a report
to Miller by Clark Stillwagon, a Nelson & Sloan driver
who is Respondent's shop steward, and by Clarence
Spoon, Respondent 's secretary-treasurer and business
agent. Spoon reported that he was driving on the high-
way in January "and recognized a Nelson/Sloan or what
I assumed to be a Nelson/Sloan vehicle with Hofer's
name on the door."7 Nelson & Sloan and Respondent
were unable to resolve the issue raised by Miller's letter,
and the matter was referred to the grievance procedure
of the collective-bargaining agreement. The parties' Joint
Conference Board issued its award on February 6, order-
ing that Nelson & Sloan comply with the provisions of
article IV, paragraph (o) of the agreement , quoted
above. The award was based on the fact that Hofer had
not cleared through the Union prior to starting work at
the Sweetwater Reservoir. Hofer then directed the
owner-operators working for him to report to Respond-
ent for clearance. The owner-operators were given clear-
ances by the Union, upon their furnishing Respondent
with proof of ownership of their vehicles. Hofer contin-
ued to use its own employees, driving Hofer's trucks and
other equipment, to transport sand to Nelson & Sloan's
concrete plants.
After the February 6 Joint Conference Board award
was issued, Miller called Monson on the telephone and
told him Nelson & Sloan must cease and desist from
using the services of Hofer. Monson replied that he was
complying with the award, and before he proceeded fur-
ther, he required clarification of the award. On February
9 Respondent requested a Joint Conference Board clarifi-
cation of its award of February 6,8 and on February 21
the Joint Conference Board issued a clarification, stating,
inter alia, "the board intended, by its above award, to re-
quire all persons hauling sand from the `Sweetwater pit'
to conform to the terms of Paragraph 0, i.e., clear
through the union within 48 hours from date of receipt
of the award."
On February 23 Ernest Hofer, owner of Hofer, and
Hofer's employees went to Respondent's union hall to
obtain clearances pursuant to the collective -bargaining
7 Hofer purchased two tractors and one trailer from Nelson & Sloan in
December 1983 Hofer testified that the equipment was inoperable, and
stored in the "boneyard" (wrecking yard) when he purchased it. Hofer
said he restored the equipment and put it back into operation . Stillwagon
testified that the equipment was operable , and that its location when pur-
chased by Hofer was hidden by Nelson & Sloan and not in the boneyard
Hofer's version of this incident is credited
8 This request was in the form of a grievance G C Exh 6
973
agreement. Spoon told Ernest Hofer that he, Ernest
Hofer, could be given a clearance since he owned the
trucks, but that Hofer's employees could not be given
clearances since they did not own the trucks they drove.
Ernest Hofer and his employees left the hall, and Hofer
continued to use its employees to deliver sand from
Sweetwater Reservoir to Nelson & Sloan's plants.
By letter dated February 29, Spoon stated to Monson
that Nelson & Sloan was in "blatant diregard" of the
Joint Conference Board order, and that "This is to
advise that you are hereby given 24 hours written notice
of our intent to picket any and all Nelson-Sloan facilities
on or after midnight Thursday, March 1, 1984." Picket-
ing commenced March 2. When Monson arrived at
Nelson & Sloan's facility approximately at 5:35 a.m. on
March 2, he saw Spoon, Miller, and Eddy Galvas, a
business representative for Respondent , picketing at the
gate with signs reading:
Teamsters Picket
Local 36
Nelson & Sloan
Violation of Conference Board
Award
Approximately 100 of Nelson & Sloan's employees were
standing outside the facility, refusing to cross the picket
line, and report for work. Monson asked Spoon what
was going on and Spoon replied that Monson suggested
that they work out a solution. Spoon declined to do so,
saying that the only solution was for Nelson & Sloan to
cease and desist from using Hofer, and to pay to the
union trust fund contractual amounts for all hours Hofer
employees worked for Nelson & Sloan since the Joint
Conference Board award was issued . After talking with
Nelson & Sloan's attorney, Monson agreed to Respond-
ent's demands. The pickets were dismissed approximately
at 6:40 a.m., and the waiting employees reported for
work. Monson then signed an agreement to cease and
desist from using drivers who had not cleared through
the Union, until the matter legally was settled, and gave
Spoon a check in the sum of $4749.20 made payable to
the union trust fund.9 After March 2, and until Nelson &
Sloan obtained an injunction against the Union issued by
the United States District Court for the Southern Dis-
trict of California, Hofer stopped using its employees for
Nelson & Sloan runs, and employed only independent
owner-operators for such work.
A. The 8(e) Issue
By letter of March 6, Monson notified Respondent
that Nelson & Sloan would be using Hofer and its em-
ployees commencing Thursday, March 8. Spoon replied
by letter dated March 7, and threatened to picket all of
Nelson & Sloan 's facilities if Nelson & Sloan did not
comply with the Joint Conference Board's award of Feb-
9 There are a few minor discrepancies in the versions of Spoon and
Monson relative to the summary contained in this paragraph Monson
was a more convincing and impressive witness than Spoon , and this sum-
mary embodies Monson's testimony, which is accepted as accurate.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ruary 6, as clarified February 21. Monson then informed
Hofer that the latter would not be able to haul sand for
Nelson & Sloan with its employees. That proscription
continued until the date of the U.S. district court injunc-
tion noted above.
Section 8(e) of the Act, sometimes referred to as the
"hot-cargo" section, was enacted into law in 1959 as a
part of the Landrum-Griffin Act, which amended the
National Labor Relations Act. The portion of Section
8(e) that is relevant to this issue is as follows:
(e) It shall be an unfair labor practice for any
labor organization and any employer to enter into
any contract or agreement, expressed or implied,
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 con-
taining such an agreement shall be to such extent
unenforceable and void.
Section 8(e) addresses itself to what the Congress consid-
ered a defect in the law prior thereto, i.e., the law that
permitted contractual provisions directed to unoffending
employers, rather than to conditions of work of the con-
tracting employer. It was the intent of Congress in enact-
ing Section 8(e) to preclude secondary boycotts, and a
literal reading of the statute indicates that all agreements
for secondary action are covered. However, judicial pro-
nouncements have resulted in the allowance of some sec-
ondary agreements as being outside the intent of the stat-
ute. National Woodwork Mfrs. Assn. v. NLRB, 386 U.S.
612 (1967), rehearing denied 387 U.S. 926 (1967), sets
forth the basic judicial guidelines in determining the
nature of contracts permissible under Section 8(e). That
case approves subcontractual limitations on an employ-
er's actions, provided the purpose thereof is to protect
and preserve work standards and opportunities of the
bargaining unit. These clauses sometimes are referred to
as "union standards clauses." However, provisions that
limit subcontracting to employers who are parties to
union contracts are secondary and illegal, since their pur-
pose is to further union causes outside the ambit of the
unit. Such clauses sometimes are referred to as "Union
signatory" provisions. Many cases have been decided by
courts and the Board pursuant to the guidelines of Na-
tional Woodwork, with some types of contractual provi-
sions being found lawful, and some being found unlaw-
ful. However, those guidelines have not been disturbed,
and remain the law.
The National Labor Relations Board has discussed the
question of primary agreements which limit subcontract-
ing under Section 8(e):
Contract clauses whose basic aims are to limit sub-
contracting so as to preserve for unit employees
work which has customarily been performed by
them, or in some instances to recapture work re-
garded as fairly claimable, so-called unit protection
clauses, and contract clauses designed to limit sub-
contracting of unit work to employers who main-
tain the same standards of employment, thus mini-
mizing the economic incentive to subcontract, so-
called union standard clauses, have been held to be
lawful. The underlying rationale for the lawful
character of unit protection and union standard
clauses is that the union has a primary interest in
preserving unit work for unit employees and to
insure that negotiated standards will not be under-
mined. 110
Respondent argues that "The evidence indicated that
Article 4(o) was negotiated to protect the bargaining unit
work of the Respondent."
Article IV(o) of the agreement quoted above, provides
inter alia, that if certain conditions are met, "the employ-
er may utilize the services of owner-operator." It is quite
clear from the evidence, summarized supra, that Re-
spondent interpreted the provision to exclude subcon-
tracting to anyone other than owner-operators, and that
the wording of the provision permits no other interpreta-
tion. Further, the evidence is clear that the prehire con-
ditions of the agreement were satisfied in this case by
Nelson & Sloan. The employer did not lay off any unit
employee because of its sale of equipment or change of
operations; the employer used the services of Hofer be-
cause of economic necessity; there is no evidence that
unit work and standards were affected in any manner by
the Employer's use of Hofer. Patently, Respondent
sought to preclude Nelson & Sloan's use of Hofer for
some reason other than maintenance of union standards
or unit protection. That reason was furtherance of union
goals outside the Nelson & Sloan unit of employees.
Respondent argues that article IV(o) "was negotiated
to protect the bargaining unit work of the Respondent,"
and cites Wheeler's testimony that the article was re-
vised, and continues in its present form, in order to pre-
serve work for Nelson & Sloan's unit employees. Wheel-
er testified, and Respondent argues, that at the time the
contract was negotiated, "most of the companies were
using owner-operators and that was why the language
was put in the contract." The revision, Respondent con-
tends, was necessary because owner-operators were
being "put on the clock" earlier than unit employees,
therefore the contract is for the purpose of protecting
unit work against "encroachment by owner operators."
That testimony and the argument based upon it, are con-
clusionary, and in conflict with the Union's interpreta-
tion of the contract." The words of article IV(o) are
plain , and Respondent agreed they are plain, when it of-
fered a clearance to Hofer, but denied clearance to
Hofer's employees who were not using their own trucks.
Regardless of any arguments as to whether or not article
IV(o) is ambiguous, and whether or not Respondent may
have had some concern about owner-operators when it
agreed to the article, the fact remains that its words con-
trol this case. Those words were applied by Respondent
10 Teamsters Committee for Northern California (California Dump Truck
Owners Assn.), 227 NLRB 269, 272 (1976)
11 Respondent's interpretation and use of the words of the contract are
permissible evidence of the meaning of the words Machinists District No.
9 (St. Louis Automotive), 134 NLRB 1354 (1962)
TEAMSTERS LOCAL 36 (NELSON & SLOAN)
in order to force Nelson & S loan to cease doing business
with Hofer, who used its own employees driving trucks
owned by it. Thus, article IV(o) on its face precludes
Nelson & Sloan from doing business with all subcontrac-
tors who employ drivers of equipment owned by those
subcontractors. Such a contractual provision permits sub-
contracting only of owner-operators, even if unit work
and standards are not involved, and is for a secondary
object in violation of Section 8(e) of the Act.12
Respondent argues that Griffith Co.13 controls this
issue, but that case is not applicable herein. There, only
Section 8(b)(4)(ii)(A) and (B) of the Act was at issue, and
the administrative law judge stated, "I find it unneces-
sary to consider further questions which the record pre-
sents. These questions primarily, derive from certain rele-
vant statutory provisions which, because of my disposi-
tion with respect to this case, need not be reached." Sec-
tion 8(e) of the Act was not in issue, nor was any finding
or conclusion made relative to that section.
Respondent argues "There is ample evidence in the
record that Hofer is in fact performing bargaining unit
work."' That argument is not persuasive. Spoon made it
clear in his testimony that he did not know, when he re-
fused a clearance to Hofer's employees, whether or not
Nelson & . Sloan had equipment of its own that it could
use for the work Hofer was doing. Spoon testified that
he was ready to give Ernest Hofer a clearance as owner
of the trucks. Patently, Spoon was not protecting unit
work-he was concerned only with keeping Hofer's em-
ployees off the job, for a secondary object. Apparently
Spoon believed it irrelevant whether or not contractual
conditions for subcontracting had been met by Nelson &
Sloan, or he believed that the conditions had been met.
Yet, those conditions are the contractual predicate for
utilization of owner-operators. Being ready and able to
give Hofer a clearance, but simultaneously refusing clear-
ances for Hofer's employees, Spoon made it clear that he
considered Respondent the arbiter under the agreement,
concerning Nelson & Sloan's selection of persons with
whom it would subcontract. Section 8(e) does not pro.
tect that kind of class selection. Apparently Respondent
argues that, because Nelson & Sloan once screened and
hauled its own sand with unit employees, and Hofer took
over some of that work,14 it necessarily follows that
Hofer was doing unit work. However, Monson credibly
testified that the change was necessitated by economic
conditions. Further, Spoon did not contend that Ernest
Hofer was interfering with bargaining unit work. Finally,
the contract specifically envisions what Nelson & Sloan
did-i.e., employ subcontractors. Clearly, subcontracting
does not, per se, interfere with unit work. If there is in-
terference, such fact must be shown in order to fall
12 As pointed out by the Intervenor , owner -operators are not potential
union members , hence Respondent 's agreement that Nelson & Sloan, sub-
ject to some conditions , could use owner -operator subcontractors.
Charles McGowen, San Diego division manager of Conrock, a company
with operations similar to those of Nelson & Sloan, credibly testified that
Respondent once attempted to organize the employees of C R Stevens,
a company that mined sand and delivered it to Conrock in the manner
carried out by Hofer for Nelson & Sloan
1e Dump Truck Drivers Local 36 (Gr{ffith Co.), 173 NLRB 348 (1968)
14 As noted supra , Nelson & Sloan still uses unit employees on this
work during slack time
975
within the protection of Section 8(e). Not only did Re-
spondent fail to show interference, Spoon negated such a
situation when he agreed to give Ernest Hofer a clear-
ance. Importantly, as noted earlier, no unit employee of
Nelson & Sloan was laid off, or had hours of work re-
duced, as a result of its subcontracting with Hofer,
The General Counsel, Intervenor, and Charging Party
argue that article IV(o) of the collective-bargaining
agreement also violates Section 8(e) of the Act in that it
requires subcontractors to obtain clearance from the
Union no later than the start of the second day of work.
That argument is well founded. The contested provision
limits the class of persons to whom Respondent will
permit work, and Respondent offered no valid reason for
such action, as discussed above. The "clearances" provi-
sion of the agreement clearly violates Section 8(e) of the
Act. 1 s
B. The 8(b)(4)(i), (ii)(A) and (B) Issue
Respondent's picketing of Nelson & Sloan is discussed
above, and the facts surrounding that picketing are not in
dispute. The picketing constituted " inducement and en-
couragement" of Nelson &, Sloan 's employees who re-
fused to work on March 2, within the meaning of Sec-
tion 8(b)(4)(i).16
As noted earlier , Respondent threatened in its letters
of February 29 and March 7 to picket Nelson & Sloan,
and picketed March 2. Further, in his conversation with
Monson March 2, Spoon conditioned removal of the
pickets on Nelson & Sloan 's discontinuance of its subcon-
tract with Hofer. That conduct violated Section
8(b)(4)(ii) of the Act, as alleged by the General Coun-
sel.17
As discussed above, article IV(o) of the collective-bar-
gaining agreement between the Association and Nelson
& Sloan violates the provisions of Section 8(e) of the
Act. Respondent 's actions taken to force or require
Nelson & Sloan to enter into such a contract violated
Section 8(b)(4)(A) of the Act, as alleged by the General
Counsel. Further, the record demonstrates that Respond-
ent's actions were undertaken to force or require Nelson
& Sloan to give effect to article IV(o), and thereby to
enter into an agreement prohibited by Sections 8(e) and
8(b)(4)(A) of the Act. 118
As argued by the General Counsel, Spoon's conditions
for removal of the pickets on March 2 clearly showed
that an object of the picketing was to force or require
Nelson & Sloan to discontinue doing, business with
Hofer, or with any other person not cleared through the
Union, in violation of Section 8(b)(4)(i) and (ii)(B).
11 Teamsters Local 36 (California Dump Truck Owners), 249 NLRB 386
(1980), enfd 669 F 2d 759 ( 1980), affd . Shepard v NLRB, 459 U S 344
(1983); Painters, Local 585 (Falstaff Brewing Corp ), 144 NLRB 100, 104
(1963)
16 Mine Workers Local 2117 (Codell Construction Co), 245 NLRB 673
(1979), Service Employees Local 73 (Andy Fain), 239 NLRB 295 (1978)
17 Teamsters Local 84 (Graybor Electric Co), 243 NLRB 665 ( 1978). As
noted in the background summary, above , Spoon denied Monson 's testi-
mony that Spoon conditioned removal of the pickets partially upon
Nelson & Sloan's discontinuance of using Hofer, but Monson was a more
credible witness than Spoon
18 California Dump Truck Drivers Assn , supra.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the foregoing findings of fact and the
entire record, I make the following
CONCLUSIONS OF LAW
1. Hofer & Sons Equipment Rental is an employer en-
gaged in commerce and in a business affecting commerce
within, the meaning of Section 2(6) and (7) of the Act.
2. Building Material and Dump Truck Drivers, Team-
sters Local Union No. 36, affiliated with the Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America is a labor organization within
the meaning of Section 2(5) of the Act.
3. By entering into, maintaining, and enforcing article
IV, paragraph (o) of the San Diego County Rock Pro-
ducers Association Agreement for 1982-1985, Respond-
ent has engaged in unfair labor practices within the
meaning of Section 8(e) of the Act.
4. By threatening to picket, and picketing, Nelson &
Sloan, and by conditioning the cessation of that picketing
on Nelson & Sloan's agreement to cease doing business
with Hofer, in order to enforce the aforesaid article IV,
paragraph (o) and to force Nelson & Sloan to cease
doing business with Hofer or any other person not
cleared through Respondent, Respondent violated Sec-
tion 8(b)(4)(i), (ii)(A) and (B) of the Act.
5. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of the Act, I shall recom-
mend that it be ordered to cease and desist therefrom,
and to take certain affirmative action to effectuate the
policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed19
ORDER
The Respondent, Building Material and Dump Truck
Drivers, Teamsters Local Union No. 36, affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
19 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.
Warehousemen and Helpers of America, San Diego,
California, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Entering into, maintaining, seeking to enforce, or
enforcing article IV, paragraph (o) of the San Diego
County Rock Producers Agreement for 1982-1985 to the
extent that the provision violates Section 8(e) of the Act.
(b) Picketing, threatening to picket, or threatening to
continue picketing Nelson & Sloan, to force or require
Nelson & Sloan to enter into or enforce article IV, para-
graph (o), to the extent that the provision violates Sec-
tion 8(e) of the Act, or to enter into any other agreement
prohibited by Section 8(e) of the Act.
(c) Picketing, threatening to picket, or threatening to
continue picketing Nelson & Sloan, to force or require
Nelson & Sloan to cease doing business with Hofer or
any other person engaged in commerce.
(d) In any like or related manner restraining or coerc-
ing 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.
(a) Withdraw any and all grievances filed pursuant to
the aforesaid agreement, seeking to enforce article IV,
paragraph (o) thereof, to the extent said provision vio-
lates Section 8(e) of the Act.
(b) Post at its meeting hall, copies of the attached
notice marked "Appendix."20 Copies of the notice, on
forms provided by the Regional Director for Region 21,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
members are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(c) Furnish the Regional Director signed copies of
such notice for posting by Hofer & Sons Equipment
Rental.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
20 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."