Carpenters District Council of Northeast Ohio (Alessio Construction)

National Labor Relations Board - Board Decisions

Apr 6, 1993

310 N.L.R.B. 1023 (N.L.R.B. 1993)

1023
310 NLRB No. 172
CARPENTERS DISTRICT COUNCIL OF NORTHEAST OHIO (ALESSIO CONSTRUCTION)
1 See, e.g., Peter Kiewit Sons’ Co., 206 NLRB 562 (1973), enf.
denied 518 F.2d 1040 (D.C. Cir. 1975), revd. 425 U.S. 800 (1976);
Carpenters Local 213 (Baxter Construction), 201 NLRB 23, 26 fn.
7 (1973); Gerace Construction, 193 NLRB 645 (1971). See also
Carpenters Local 1846 v. Pratt-Farnsworth, Inc., 690 F.2d 489,
504–507 (5th Cir. 1982), cert. denied 464 U.S. 932 (1983).
2 See Carpenters Local 1478 v. Stevens, 743 F.2d 1271, 1276 (9th
Cir. 1984).
3 The subcontracting clause in the 1982–1985 Master Agreement
provided that ‘‘[t]his Agreement shall bind all subcontractors while
working for a contractor on the jobsite upon whom this Agreement
is binding. Any contractor who sublets any of his work must sublet
same, subject to this Agreement.’’ The General Counsel does not al-
lege that this clause is unlawful.
Northeast Ohio District Council of the United
Brotherhood of Carpenters and Joiners of
America, AFL–CIO and Ernest Alessio Con-
struction Company, Inc. Case 8–CB–5733
April 6, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY, OVIATT, AND RAUDABAUGH
On March 28, 1990, Administrative Law Judge Mar-
ion C. Ladwig issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief
and the Respondent filed an answering brief in support
of the judge’s decision.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this deci-
sion.
I. INTRODUCTION
This case arises from an unfair labor practice charge
filed by Ernest Alessio Construction Company, Inc.
(Alessio) against the Northeast Ohio District Council
of the United Brotherhood of Carpenters and Joiners of
America, AFL–CIO (Union) alleging that the Union
violated Section 8(b)(3) of the Act by insisting to im-
passe on the inclusion in the parties’ collective-bar-
gaining agreement of an anti-dual-shop clause. An
anti-dual-shop clause is a clause aimed at prohibiting
or discouraging a unionized employer’s maintenance of
an affiliation with a nonunion company in a so-called
double-breasting arrangement. Double-breasting is a
corporate arrangement, found principally in the con-
struction industry, in which a unionized employer
forms, acquires, or maintains a separately managed
nonunion company that performs work of the same
type as that performed by the affiliated union com-
pany. The phenomenon has existed for more than 20
years, although the term ‘‘double-breasting’’ did not
appear in the early Board decisions which found that
such arrangements were lawful means of creating sepa-
rate employers for union recognitional purposes and
that certain types of union conduct aimed at imposing
union representation on the employees of the separate
nonunion company violated the Act.1 Unions perceive
such arrangements as inimical to the interests of the
employees of the unionized companies that compete
for work with the nonunion companies within the geo-
graphical area covered by the union agreement.2 For
the following reasons, we find, contrary to our dis-
senting colleague, that the anti-dual-shop clause at
issue here is unlawful under Section 8(e) of the Act,
and that the Union violated Section 8(b)(3) by insisting
to impasse on it.
II. FACTUAL BACKGROUND
Alessio is a general contractor engaged in the con-
struction industry in the Akron, Ohio area. Alessio’s
employees have been represented by the Union since
the early 1960s. Although Alessio originally bargained
as part of a multiemployer association, it withdrew
from that association and commenced separate bar-
gaining with the Union in the mid-1970s. Alessio and
the Union subsequently entered into successive agree-
ments patterned on the Union’s master agreement with
the multiemployer association. The last such agreement
was effective from 1982 through 1985.
In 1984, the Union offered to make concessionary
midterm modifications to its 1982–1985 Master Agree-
ment in an effort to help signatory contractors compete
with nonunion firms. These proposals involved two
packages: an addendum to the Master Agreement and
a Market Recovery Program (MRP). The addendum
extended the Master Agreement to 1987 and elimi-
nated scheduled wage increases. The MRP, on the
other hand, would have amended the Master Agree-
ment to allow employers to pay 80 percent of the con-
tractual wage rate on private sector jobs, modified
other economic provisions and work rules, and added
an anti-dual-shop clause to the agreement’s existing
subcontracting clause.3 The proposed anti-dual-shop
clause stated:
In the event that the partners, stock holders or
beneficial owners of the company form or partici-
pate in the formation of another company which
engages or will engage in the same or similar type
of business enterprise in the jurisdiction of this
Union and employs or will employ the same or
similar classifications of employees covered by
this Collective Bargaining Agreement, then that
business enterprise shall be manned in accordance
with the referral provisions herein and covered by
all the terms of this contract.
Employers could agree to either the addendum or the
MRP independently, or agree to both, as midterm
modifications, or could reject both. In short, at this
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 See generally Plumbers District Council 16 (Jamco Develop-
ment), 277 NLRB 1281, 1282–1283 (1985).
time the price for obtaining the reductions in pay and
the more economical work rules was agreement to the
anti-dual-shop clause; but the Union was not insisting
on the clause as the price for any contract at all.
In 1984, Alessio advised the Union that it intended
to abrogate the parties’ agreement, which by its terms
was effective until May 31, 1985. However, Alessio
did not follow through on its threat. Subsequently, in
1985, Alessio advised the Union that it would not
agree to either the addendum or the MRP as midterm
modifications, but intended to implement the favorable
concessionary aspects of the two proposals imme-
diately. The Union responded by insisting that Alessio
honor its contractual obligations absent mutual agree-
ment on modifications to their 1982–1985 agreement.
There is no allegation that Alessio thereafter failed to
comply with the agreement.
Following the expiration of the 1982–1985 agree-
ment, the parties commenced negotiations for a new
agreement. The parties met and exchanged proposals
on several occasions. On August 6, 1985, Alessio ad-
vised the Union that it would not agree to the Union’s
proposals regarding journeyman and apprentice wages,
and would not agree to continue certain provisions of
the expired contract that embodied mandatory subjects
of bargaining, but there is no contention that Alessio
refused to bargain on these subjects. Alessio also re-
fused to agree to the proposed anti-dual-shop clause
originally proposed as part of the MRP. According to
the credited testimony, since August 21, 1985, the
Union has demanded that Alessio agree to the anti-
dual-shop clause as a condition of any agreement.
III. JUDGE’S CONCLUSIONS
The judge found that Alessio and the Union reached
impasse over the inclusion of the proposed anti-dual-
shop clause in any agreement. In this regard, the judge
stated that Alessio had consistently asserted that it
viewed the clause as unacceptable while the Union
made it equally clear that agreement to the clause was
a condition for agreeing to the wage concessions which
Alessio sought. The judge also noted that the Union
admitted, in a Motion for Summary Judgment sub-
mitted to the Board on January 15, 1987, that it has
demanded agreement to the anti-double-breasting
clause as a condition of consummating any collective-
bargaining agreement.
The judge concluded, however, that the Union’s in-
sistence to impasse did not violate Section 8(b)(3) of
the Act, because he deemed the anti-dual-shop clause
a lawful mandatory subject of bargaining. He rejected
the General Counsel’s contention that the Union’s in-
sistence was unlawful because the clause itself was a
proscribed secondary agreement within the meaning of
Section 8(e) of the Act and was not saved from the
prohibition by the construction industry proviso to Sec-
tion 8(e). The judge construed the clause as applying
only to entities to which a signatory employer ‘‘di-
verted’’ unit work, and he concluded that, as thus con-
strued, the clause had lawful work preservation, i.e.,
primary, objectives. He further concluded that, even if
the clause had a secondary objective, it was exempt
from the prohibitions of Section 8(e) because he found
that (1) it comes within the construction industry pro-
viso, and (2) it is not subject to any enforcement
mechanism of the sort proscribed with respect to sec-
ondary clauses that are lawful only by virtue of the
proviso.4
IV. THE PARTIES’ CONTENTIONS
The General Counsel contends that the anti-dual-
shop clause has purely secondary objectives because it
is directed at the labor relations of persons who are not
bound to Alessio either as single employers or alter
egos and because there is no evidence of diversion of
work from the Alessio unit. In this regard, the General
Counsel asserts that the judge erroneously relied on the
Union business agent’s testimony regarding the mean-
ing of the clause to find, contrary to its plain and un-
ambiguous language, that the clause would only apply
in the event that the signatory diverted unit work to its
nonunion affiliate.
The General Counsel further argues that this sec-
ondary clause is not saved by the construction industry
proviso. He contends that, in light of its plain language
and legislative history and precedents construing it, the
proviso covers only contract clauses that in some way
relate to the contracting or subcontracting of jobsite
work or at least to the signatory employer’s own per-
formance of jobsite work under its contract. Congress
intended the proviso to protect only contract clauses of
that kind which were in existence in 1959, when the
proviso was enacted, the General Counsel argues. He
rejects—as inconsistent with basic tenets of statutory
construction calling for a strict interpretation of excep-
tions to statutory prohibitions—any ‘‘expansive and
dynamic’’ interpretation of the proviso aimed at bring-
ing within it clauses that were not part of the pattern
of contracting in 1959 because they were devised in
response to later developments in the construction in-
dustry.
The clause at issue in this case, the General Counsel
argues, goes beyond the proviso because it is unlike
clauses that appeared in construction industry agree-
ments in 1959 and earlier. It also goes beyond the pro-
viso, the General Counsel maintains, because it does
not come within the statutory language insofar as it
would apply to work which had never been the subject
of any contract or subcontract by the signatory em-
ployer, and to work which would be performed on
1025CARPENTERS DISTRICT COUNCIL OF NORTHEAST OHIO (ALESSIO CONSTRUCTION)
5 On August 29, 1990, the Board reversed the judge’s finding that
certain of the employers in Manganaro were part of a multiemployer
bargaining unit, vacated prior rulings quashing subpoenas served by
the respondent and finding certain testimony not relevant to the
issues in that case, and remanded the proceeding to allow the judge
to receive evidence excluded by the Board’s prior rulings and to
make findings of fact and conclusions of law regarding the respond-
ent’s contention that the anti-dual-shop clause in that case had lawful
primary objectives. See Painters District Council 51 (Manganaro
Corp.), 299 NLRB 618 (1990), motions for reconsideration denied
May 9, 1991 (unpublished order).
6 NLRB v. Longshoremen ILA, 447 U.S. 490, 503–504 (1980), and
cases there cited (criteria for falling within basic 8(e) prohibition);
Woelke & Romero Framing v. NLRB, 456 U.S. 645, 652–660 (1982)
(effect of proviso).
7 Chicago Truck Drivers (Signal Delivery), 279 NLRB 904, 906
(1986).
8 We note also that, although the Respondent’s brief refers to the
clause as ‘‘a lawful work preservation clause,’’ its brief mainly ad-
dresses the construction industry proviso, which comes into play
only if a clause would otherwise violate Sec. 8(e).
9 The cease-doing-business element of Sec. 8(e) is satisfied by
proof of prohibitions against forming business relationships in the
first place as well as requirements that one cease business relation-
ships already in existence. See, e.g., Ets-Hokin Corp., 154 NLRB
839, 840 (1965), enfd. 405 F.2d 159 (9th Cir. 1968), cert. denied
395 U.S. 921 (1969).
10 National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 643–
645 (1967).
11 Because it is aimed at affecting the labor relations of separate
affiliated companies with their employees, the clause has an objec-
tive unlike the objective of the arbitral award secured by the union
respondent in Electrical Workers IBEW Local 46 (Puget Sound), 303
NLRB 48 (1991). There, as the Board noted, the union’s efforts
were not focused ‘‘on the labor relations between’’ nonunion em-
ployer-members of the multiemployer association and their employ-
ees. Id.
jobsites where employees of the signatory employer
would not be working.
The General Counsel further contends that the Re-
spondent violated Section 8(b)(3) by insisting that
Alessio agree to an illegal clause, i.e., the anti-dual-
shop clause that, under the General Counsel’s submis-
sion, violates Section 8(e). Even if the clause is found
lawful, however, the General Counsel contends that it
was a nonmandatory subject of bargaining, in that the
clause does not concern the wages, hours and working
conditions of unit employees. As such, it was not a
subject on which the Respondent was entitled to bar-
gain to impasse.
The Respondent does not appear to contend that the
anti-dual-shop clause has primary objectives which
render it lawful under Section 8(e). Rather, it contends
that the judge correctly found that the clause was pro-
tected by the construction industry proviso. The Re-
spondent notes that a union may strike to obtain an
agreement protected by the proviso, and asserts that, a
fortiori, it could lawfully bargain to impasse to obtain
agreement over the clause. In support of its conten-
tions, the Respondent cites to certain advice memo-
randa in which the General Counsel had previously
stated that agreements like the anti-dual-shop clause
were protected by the proviso, and to administrative
law judge Marvin Roth’s decision to that effect in
Painters District Council 51 (Manganaro Corp.), Case
5–CC–1036 et al.5
V. ANALYSIS
An agreement is unlawful under Section 8(e) of the
Act if (1) it is an agreement of a kind described in the
basic prohibition of that section—e.g., an agreement to
cease doing business with another person, (2) it has
secondary, as opposed to primary, work preservation
objectives, and (3) it is not saved by coming within the
terms of the construction industry proviso to Section
8(e).6 If a labor organization insists to impasse on a
provision that is not a mandatory subject of bargaining
either because it embodies a permissive subject or is
unlawful, the party will be found to have violated Sec-
tion 8(b)(3).7 For the reasons that follow, we find that
the clause at issue in this case comes within the basic
8(e) prohibition because it falls within the terms of that
section and has secondary objectives, that it does not
come within the construction industry proviso, and that
the Respondent violated Section 8(b)(3) by insisting on
it to impasse.
A. The Basic 8(e) Prohibition
We agree with the General Counsel that the pro-
posed anti-double-breasting clause comes within the
basic prohibition of Section 8(e), and we note that our
dissenting colleague does not argue to the contrary.8 It
is an 8(e) clause because, by requiring the extension
of the collective-bargaining agreement to Alessio’s af-
filiates as it defines them, (1) it is calculated to cause
Alessio to sever its ownership relationship with affili-
ated firms that seek to remain nonunion or to forebear
from forming relationships with such firms,9 even
though those firms are separate employers under court-
approved Board law, and (2) it is aimed not at pre-
serving the work of Alessio’s union-represented em-
ployees but rather at satisfying ‘‘union objectives else-
where,’’10 i.e., the objective of affecting the labor rela-
tions between the nonunion affiliated companies and
their employees over which Alessio has no right of
control. Such an attempt to impose a contract on sepa-
rate employers of employees in ‘‘work units far re-
moved from the contractual unit’’ is plainly secondary
and is unlawful under Section 8(e), absent proviso pro-
tection. Sheet Metal Workers Local 91 (Schebler Co.),
294 NLRB 766, 770 (1989), enfd. in pertinent part 905
F.2d 417 (D.C. Cir. 1990).11
The judge implicitly conceded that the clause would
be secondary if it was intended to force the extension
of Alessio’s collective-bargaining agreement with the
Respondent to affiliates of Alessio whose only linkage
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 E.g., Los Angeles Newspaper Guild Local 69 (Hearst Corp.),
185 NLRB 303 (1970), enfd. per curiam 443 F.2d 1173 (9th Cir.
1971), cert. denied 404 U.S. 1018 (1972).
13 There is thus no evidence in this case like that which led the
Board in A-1 Fire Protection, 273 NLRB 964 (1984), enfd. 789 F.2d
9 (D.C. Cir. l986), operating under the terms of a court remand that
it accepted as law of the case, to find that the employer operating
two enterprises as double-breasts had, by changes in his bidding
practices, diverted major fire sprinkler installation jobs from his
unionized operation to his nonunion operation, which had formerly
done only inspection work and very small installation jobs. The
Board also rested its work diversion conclusion on the judge’s find-
ing that market conditions could not account for the division of work
between union and nonunion entities. Id. at 966–977.
14 Teamsters Local 982 (J. K. Barker Trucking), 181 NLRB 515,
517 (1970); Ets-Hokin Corp., supra, 154 NLRB at 841.
15 In concluding that the proposed clause’s common ownership
provision is not limited to circumstances in which common control
is also present, we rely on the fact that a showing that a signatory
employer merely ‘‘participate[s] in the formation of another com-
pany’’ is sufficient to invoke application of the clause.
was common ownership and performance of the same
type of construction work within the Respondent
Union’s geographical jurisdiction. Companies that are
bound only by common ownership are generally found
to be neutrals with respect to each other’s labor rela-
tions.12 The judge managed to find a primary work
preservation objective in the clause by construing it as
if it would apply only to those double-breasted compa-
nies to which the signatory diverted unit work. Such
an intent is not apparent from the text of the proposed
clause, however. Because it does not require that the
signatory employer control or manage the affiliates
covered by the provision, it would reach companies
performing work that was not within the signatory’s
‘‘right of control’’ but rather had been independently
obtained from clients that had never intended to give
their business to Alessio. Furthermore the clause nei-
ther refers to diverted work nor requires that work per-
formed by the employees of the nonunion affiliates be
assigned to unit employees.
Finally, the Respondent has not presented evidence
that Alessio had transferred jobs which it had obtained
to the nonunion affiliates which would be covered by
the provision, or that Alessio had changed its bidding
practices so as to divert work from it to the nonunion
affiliates, or that double-breasting in general diverts
work from the union breast to the nonunion breast.13
The judge’s attempt to salvage the clause by resort to
extrinsic evidence—the testimony of a business agent
of the Respondent Union—is improper unless that evi-
dence is aimed at resolving some ambiguity.14 There
is no ambiguous term in the clause on which the testi-
mony sheds any light. The use of the phrases ‘‘same
or similar type of business enterprise’’ and ‘‘same or
similar classifications of employees’’ and the absence
of any references to unit work make it clear that the
clause is not limited in its application to companies
that are performing work that was diverted from signa-
tory employers.
In sum, considering the plain language of the pro-
posed clause, we find that it clearly would apply on
the basis of common ownership alone, and is not lim-
ited to cases in which common control15 or diversion
of work is demonstrated. Thus, the proposed clause
would apply even in circumstances where the signatory
employer did not have the power to assign the disputed
work to unit employees. Indeed, the proposed clause
does not seek and would not require the assignment to
unit employees of any work performed by the non-
union ‘‘breast.’’ Rather, the anti-dual-shop clause is
aimed at ensuring that the other ‘‘breast’s’’ employees
are covered by the agreement.
These factors also further demonstrate the secondary
nature of the proposed clause. As the Supreme Court
has noted, ‘‘if the contracting employer has no power
to assign the work, it is reasonable to infer that the
agreement has a secondary objective, that is, to influ-
ence whoever does have such power over the work.’’
NLRB v. Longshoremen ILA, 447 U.S. 490, 504–505
(1980). For all the foregoing reasons, we find that the
proposed anti-dual-shop clause falls within the general
proscription of Section 8(e). We next turn to the Re-
spondent’s asserted defense based on the construction
industry proviso to Section 8(e).
B. The Construction Industry Proviso
In enacting Section 8(e), Congress expressly pro-
vided that limited categories of secondary activity
would be tolerated in certain industries. Laborers
Local 210 v. AGC, 844 F.2d 69, 73 (2d Cir. 1988).
Congress embodied that policy in the construction in-
dustry proviso to 8(e), which provides that
nothing in this subsection [8(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, structure, or
other work.
29 U.S.C. § 158(e). The Supreme Court has held that
the proviso to Section 8(e) must be interpreted ‘‘in
light of the statutory setting and the circumstances sur-
rounding its enactment.’’ Connell Construction Co. v.
Plumbers & Steamfitters, 421 U.S. 616, 628 (1975);
Woelke & Romero Framing v. NLRB, 456 U.S. 645,
653 (1982). Accordingly, we look beyond the literal
language of the proviso to determine whether the
union’s proposed clause is protected.
After a thorough examination of court decisions that
construe the proviso, we have determined that no case
is dispositive of this issue. The Supreme Court has
held that clauses cannot be protected by the proviso
1027CARPENTERS DISTRICT COUNCIL OF NORTHEAST OHIO (ALESSIO CONSTRUCTION)
16 In this regard, the contract clause in Woelke is broader than the
anti-dual-shop clause in this case, in that the Woelke clause was not
limited to work similar to that performed by the signatory employer.
17 The instant case is also distinguishable from Plumbers Local
217 (Carvel Co.), 152 NLRB 1672 (1965), enfd. in pertinent part
361 F.2d 160 (1st Cir. 1966). The Carvel case involved a clause in
which the employer agreed that no union member would be assigned
to work on any job or project on which a worker or person is per-
forming any work within the jurisdiction of the union under condi-
tions different from those in the union’s agreement. While the con-
tract clause in Carvel had an indirect impact on employers not signa-
tory to the union’s contract (in that such a clause may put pressure
on the general contractor to hire only union subcontractors), it did
not seek to bind nonsignatory employers to the union contract di-
rectly. Unlike Carvel, the clause in the instant case would automati-
cally apply the terms of the union’s contract to nonsignatory em-
ployers that perform work of the same type as that covered under
the union contract, if the signatory employer formed or participated
in the formation of or shares common ownership with the nonsigna-
tory company.
unless negotiated within the context of a collective-
bargaining agreement. Connell Construction v. Plumb-
ers & Fitters, 421 U.S. at 663. The proposed clause
obviously would meet that requirement. Further, the
Court, in Woelke & Romero Framing v. NLRB, 456
U.S. at 666, held that union signatory subcontracting
clauses, if sought or negotiated in the context of a col-
lective-bargaining agreement, are protected by the pro-
viso.16 The Court also held that there is no require-
ment that the signatory employer also perform work at
a common jobsite with the nonsignatory employer in
order for the union’s contract to apply.17 Id. The
Union’s clause in the instant case, however, is not
strictly a subcontracting clause, but rather seeks to
apply the contract to non-signatory entities that are re-
lated to the signatory employer by common ownership,
and to which the signatory employer is not necessarily
subcontracting work. Thus, unlike in Woelke, the union
seeks to bind contractors related to one another on a
horizontal, and not a vertical, basis.
In Woelke, the Court relied heavily on the fact that
Congress intended to protect ‘‘the pattern of bar-
gaining’’ in the industry in 1959 and the fact that
union signatory subcontracting clauses were part of the
existing pattern. Double-breasting was not an industry
practice in 1959 and, as a result, anti-dual-shop clauses
were not a part of the pattern of bargaining in the in-
dustry. Thus, Congress obviously had no opportunity
to consider whether such clauses should be protected
by the proviso.
In Connell Construction, the Court noted that Con-
gress seemed to have adopted the proviso as a partial
substitute for an attempt to overrule the Court’s deci-
sion in NLRB v. Denver Building & Construction
Trades Council, 341 U.S. 675 (1951). Connell, 421
U.S. at 629. Congressional discussion in the legislative
history focused on the problems of picketing a single
nonunion subcontractor or a multiemployer building
project and the close relationship between contractors
and subcontractors at the jobsite. Connell, 421 U.S. at
629–630. The Court then stated (421 U.S. at 630):
Congress limited the construction-industry proviso
to that single situation, allowing subcontracting
agreements only in relation to work done on a
jobsite. In contrast to the latitude it provided in
the garment-industry proviso, Congress did not af-
ford construction unions an exemption from Sec.
8(b)(4)(B) or otherwise indicate that they were
free to use subcontracting agreements as a broad
organizational weapon.
A careful examination of the legislative history of
the proviso reveals little affirmative evidence that Con-
gress would have chosen to protect an anti-dual-shop
clause if such a clause had existed in 1959. Section
8(e) represented a compromise between bills reported
by the Senate and the House. The Senate bill (Ken-
nedy-Ervin), which was aimed at correcting abuses by
the Teamsters union, would have outlawed hot cargo
agreements only in the trucking industry. 2 Leg. Hist.
1161–1162 (LMRDA 1959). The legislation proposed
by the House in the Landrum-Griffin bill was much
broader. It made it an unfair labor practice for any
labor organization and any employer to enter into an
agreement whereby the employer agrees to ‘‘cease
doing business with any other person.’’ H.R. 8400,
86th Cong., 1st Sess. Sec. 705 (b)(1) (1959), reprinted
in 2 Leg. Hist. 683 (LMRDA 1959). While the Con-
ference Committee decided to adopt the House bill, the
Senate Conferees insisted on a proviso that exempted
hot cargo agreements in the garment industry, and also
agreements relating to work to be done at the site of
a construction project. 2 Leg. Hist. 1432 (LMRDA
1959). Because the provisos to 8(e) were new matter
first proposed by the Senate conferees and not pre-
viously acted on by either the House or Senate, there
is no detailed discussion in the legislative history ex-
plaining the reasons for insistence by the Senate con-
ferees on the proviso.
However, as the Supreme Court pointed out in
Woelke & Romero, the legislative history of the con-
struction industry proviso indicates that Congress
sought only to preserve the status quo and the pattern
of collective bargaining in the construction industry at
the time the legislation was passed. See also Laborers
Local 210 v. AGC, 844 F.2d at 76.
The House Conference Report provides:
The committee of conference does not intend that
this proviso should be construed so as to change
the present state of the law with respect to the va-
lidity of this specific type of agreement relating to
work to be done at the site of the construction
project or to remove the limitations which the
present law imposes with respect to such agree-
ments. Picketing to enforce such contracts would
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 As indicated by the legislative history, restrictive subcontracting
clauses in collective-bargaining agreements that limited the ability of
employers to deal with nonunion or nonsignatory subcontractors
were common in the construction industry at the time of the passage
of the Landrum-Griffin Act. See 2 Leg. Hist. 1433 (LMRDA 1959);
Labor Management Reform Legislation: Hearing on S. 505, S. 748,
S. 76, S. 1002, S. 1137, and S. 1311 before the Subcommittee on
Labor of the Senate Committee on Labor and Public Welfare, 86th
Cong. 1st Sess. 752 (1959); Labor Management Reform Legislation:
Hearing on H.R. 3540, H.R. 3302, H.R. 4473, and H.R. 4477 before
a Joint Subcommittee of the House Committee on Education and
Labor, 86th Cong., 1st Sess. 2363–2368 (1959). The purpose of such
clauses was not only to avoid the unique jobsite friction that could
exist when union and nonunion workers were employed on the same
construction site, but also to recognize the ‘‘close community of in-
terests’’ inherent in the construction industry, where the wages and
working conditions of one set of employees could often affect those
of another. Laborers Local 210 v. AGC, 844 F.2d at 69, 76 (2d Cir.
1988); Donald Schriver, Inc. v. NLRB, 635 F.2d 859, 880–881 (D.C.
Cir 1980), cert. denied. 451 U.S. 976 (1981). See also National
Woodwork Mfrs., 386 U.S. at 638–639. These secondary agreements
might take the form of union-signatory clauses, in which an em-
ployer agrees not to subcontract work to any party that is not signa-
tory to a union contract, Woelke & Romero Framing, 456 U.S. at
649 fn. 1; or to clauses in which an employer agrees not to accept
contracts from a nonunion contractor, Laborers Local 210, 844 F.2d
at 71; or to clauses in which an employer agrees not to employ
union workers side-by-side with workers performing work within the
union’s jurisdiction at nonunion standards, Carvel, supra.
19 We note further that our dissenting colleague’s reliance on
Carvel is ill-founded in that the contract clause found protected by
the proviso in Carvel was, in essence, a side-by-side clause much
like those in existence prior to the enactment of Sec. 8(e) and its
proviso.
20 While we agree with the General Counsel’s general contention
that the legislative history does not support the Union’s expansive
reading of the construction proviso, we do not agree with all of the
arguments he makes with respect to interpretations which should be
given to various portions to the legislative history. Specifically, the
be illegal under the Sand Door case (Local 1796,
United Brotherhood of Carpenters v. NLRB, 357
U.S. 93 (1958)). To the extent that such agree-
ments are legal today under section 8(b)(4) of the
National Labor Relations Act, as amended, the
proviso would prevent such legality from being
affected by section 8(e). The proviso applies only
to section 8(e) and therefore leaves unaffected the
law developed under section 8(b)(4). The Denver
Building Trades case and the Moore Drydock
cases would remain in full force and effect. The
proviso is not intended to limit, change, or modify
the present state of the law with respect to pick-
eting at the site of a construction project. H.R.
Rep. No. 1147, 86th Cong., 1st Sess. 39, reprinted
in 1 Leg. Hist. 943 (LMRDA 1959) [emphasis
added].
Senator John F. Kennedy, who was chairman of the
Conference Committee, explained that the Senate Con-
ferees insisted upon an exemption from Section 8(e)
for the clothing and apparel industries and for agree-
ments relating to work to be done at the site of a con-
struction project because ‘‘[b]oth changes were nec-
essary to avoid serious damage to the pattern of collec-
tive bargaining in these industries.’’ 2 Leg. Hist. 1432
(LMRDA 1959).
Several other remarks in the legislative history indi-
cate that Congress did not desire to change the law
with respect to construction site subcontracting agree-
ments. See 2 Leg. Hist. 1715 (remarks of Rep.
Barden—‘‘[t]his proviso is intended to permit what is
now lawful’’); 2 Leg. Hist. 1721 (remarks of Rep.
Thompson—‘‘both changes were necessary to avoid
serious damage to the pattern of collective bargaining
in these [construction and garment] industries’’) 2 Leg
Hist. 1823 (postenactment memorandum of Sen. Dirk-
sen—‘‘exempts from this [8(e)] provision . . . build-
ing industry contracts barring a firm from subcontract-
ing work at its job site to an unorganized firm.’’)18
On the other hand, Senator John F. Kennedy stated
on behalf of the Senate Conferees that the proviso ap-
plied not only to ‘‘promises not to subcontract work on
a construction site to a nonunion contractor,’’ which
‘‘appear to be legal today,’’ but also to ‘‘all other
agreements involving undertakings not to do work on
a construction project site with other contractors or
subcontractors regardless of the precise relation be-
tween them.’’ 2 Leg Hist. 1433 (LMRDA 1959).
Contrary to our dissenting colleague, Senator Ken-
nedy’s remarks are ambiguous and do not support an
expansive reading of the proviso. Senator Kennedy at
first stated that ‘‘[a]greements by which a contractor in
the construction industry promises not to subcontract
work on a construction site to a nonunion contractor
appear to be legal today.’’ He was obviously referring
to a union signatory subcontracting clause, which was
a common clause included in collective-bargaining
agreements at the time the proviso was enacted. He
then went on to state that ‘‘[t]he proviso is also appli-
cable to all other agreements involving undertakings
not to do work on a construction project site with other
contractors or subcontractors regardless of the precise
relation between them.’’ (Emphasis added.) This state-
ment may refer to another type of clause, a no-side-
by-side clause, which was also commonly included in
collective-bargaining agreements in the 1950s.19 These
clauses prohibit the signatory employer from working
on a jobsite where nonunion labor is present. When he
used the phrase ‘‘regardless of the precise relation be-
tween them,’’ Senator Kennedy was likely referring to
the fact that in a no-side-by-side clause, the signatory
employer agrees not to work alongside a nonunion
contractor, even if no contractual relationship exists
between them. There is no basis for believing that Sen-
ator Kennedy intended to refer to relationships of the
type covered by the clause at issue here.
We agree with the General Counsel’s contention that
the construction industry proviso should not be given
an expansive reading.20 The construction industry pro-
1029CARPENTERS DISTRICT COUNCIL OF NORTHEAST OHIO (ALESSIO CONSTRUCTION)
General Counsel refers to language contained in Senate Resolution
181 and argues that Congress rejected attempts to amend Sec.
8(b)(4)(B) to exempt from its prohibitions ‘‘persons in the relation
of . . . joint venturers or contractors and subcontractors,’’ 2 Leg.
Hist. 1383, and that Congress rejected attempts to provide that Sec.
8(e) prohibitions would not apply where two employers are ‘‘under
the same ownership and control.’’ 2 Leg. Hist. 1383. We do not
place any reliance on the language of Senate Resolution 181, since
it was never voted on by the Senate, even though it appears that
Senator Kennedy, who was Chairman of the Conference Committee,
may have presented the proposals to the Conference Committee for
its consideration. See 2 Leg. Hist. 1434. The General Counsel also
alleges that Congress rejected attempts to provide that 8(e) prohibi-
tions would not apply to ‘‘businesses doing business with one an-
other when one is owned or controlled by the other or is owned or
controlled substantially in common.’’ See 2 Leg. Hist. 1425. This
language was taken from an amendment proposed by Sen. Morse to
Sec. 8(b)(4)(B), not to Sec. 8(e). Thus, the fact that the proposals
offered by Sen. Morse were not accepted by the Senate conferees
does not support the contention that the proviso does not apply to
two businesses commonly owned or controlled. Moreover, Sen.
Morse’s proposals were never formally offered as an amendment and
were never voted upon by the Senate. See 2 Leg. His. 1400–1431.
With respect to the remarks made by Rep. Barden before the
House that the proviso ‘‘deals only with situations where there is a
contractor or subcontractor relationship and not to situations where
there is no privity of contract between two or more contractors on
a particular site,’’ 2 Leg. Hist. 1715, we find that these remarks are
so ambiguous that they do not offer any insight into the legislative
intent behind the proviso.
21 In addition to the references cited above, we note that Senator
Dirksen described the construction industry proviso as exempting
‘‘building industry contracts barring a firm from subcontracting work
at its jobsite to an unorganized firm.’’ (Emphasis added.) 2 Leg.
Hist. 1829.
22 In sharp contrast to the proviso’s narrow focus, we note that
Sec. 8(e)’s more general cease-doing-business prohibition refers to
‘‘any contract or agreement, express or implied.’’ The broader reach
of this language has been acknowledged by the Board in the fol-
lowing terms:
Probably no language can be explicit enough to reach in ad-
vance every possible subterfuge of resourceful parties. Neverthe-
less, we believe that in using the term ‘‘implied’’ in Section 8(e)
Congress meant to reach every device which, fairly considered,
is tantamount to an agreement that the contracting employer will
not handle the products of another employer or cease doing
business with another person.
Amalgamated Lithographers of America (Miami Post Co.), 130
NLRB 968, 976 (1961), mod. on other grounds 301 F.2d 20 (5th
Cir. 1962).
23 We note that the Union has not excepted to the judge’s findings
in this regard.
viso was enacted as an exception to Section 8(e)’s
broad prohibition of secondary agreements. See 2 Leg.
Hist. at 943, 966, 1429, and 1858 (LMRDA 1959);
Woelke & Romero Framing, 456 U.S. at 653. It is a
fundamental rule of statutory construction that ‘‘where
there is doubt concerning the extent of the application
of the proviso on the scope of another provision’s op-
eration, the proviso is strictly construed,’’ and ‘‘only
those subjects expressly exempted by the proviso
should be freed from the operation of the statute.’’ 2A
Sutherland Stat. Const. Sec. 47.08 (4th Ed. 1984); Ac-
cord: Citicorp Industrial Credit v. Brock, 483 U.S. 27,
35 (1987).
We are unable to reach a definite conclusion that
Congress would have included anti-dual-shop clauses
within the proviso’s protection. Therefore, we must
‘‘strictly construe’’ the proviso and find that the
union’s anti-dual-shop clause falls outside its protec-
tion. All of the discussions in the legislative history re-
garding the types of clauses existing at the time the
legislation was drafted refer to the subcontracting of
work either by a signatory employer to a nonunion op-
eration, or to agreements by a signatory employer to
refrain from requiring union employees to work on a
jobsite with nonunion employees.21 This exclusive
focus on then-current practices is a reflection of
Congress’s intent, manifested in the proviso, merely to
maintain the legality of those practices.22
Moreover, the clauses existing in 1959 discussed in
the legislative history had a ‘‘cease doing business’’
objective with respect to contractors in a vertical rela-
tionship with each other on a common jobsite, whereas
the union’s anti-dual-shop clause in the present case
seeks to bind entities in a horizontal relationship to
each other, even in situations where the signatory and
nonsignatory employers do not have workers employed
on a common jobsite. We see little to indicate that
Congress intended that the construction industry pro-
viso be used to protect a clause such as the one here,
which differs substantially from those in existence at
the time the proviso was enacted. Accordingly, we find
that the Union’s anti-dual-shop clause is not protected
by the construction industry proviso to Section 8(e).
C. Failure to Bargain in Good Faith
As previously noted, the judge found that, since Au-
gust 21, 1985, the Union has demanded that Alessio
agree to the anti-dual-shop clause as a condition of any
agreement and thus had insisted to impasse over its in-
clusion in any successor to the parties’ 1982–1985
agreement.23 It is well-settled that a party may not in-
sist to impasse on agreement with respect to matters
which are not mandatory subjects of bargaining. See
NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958).
Having determined that agreement to the proposed
clause would be prohibited by Section 8(e) and not
protected by the construction industry proviso, we find
that the Respondent violated Section 8(b)(3) by insist-
ing that Alessio agree to the clause as a condition of
reaching an agreement.
REMEDY
Having found that the Respondent violated Section
8(b)(3) of the Act, we shall order it to cease and de-
sist, to bargain on request with Alessio without insist-
ing that Alessio agree to the anti-dual-shop clause, and,
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 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
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.’’
1 An anti-dual-shop clause is a clause which seeks to protect the
employees in a bargaining unit from the effects of double-breasting,
a phenomenon which has swept through the construction and truck-
ing industries, among others. Double-breasting generally refers to a
union employer’s acquisition, formation, or maintenance of a sepa-
rate nonunion company which performs the same type of work cov-
ered by its union agreement, often in the same geographic area.
In finding that the anti-dual-shop clause at issue in this case has
a secondary objective, I rely particularly on the fact that the clause
would only be satisfied if a signatory employer’s ‘‘affiliates’’ signed
a collective-bargaining agreement with the Union. The Board has
previously recognized that such ‘‘union signatory’’ requirements are
a clear indicia of a secondary objective, particulary because any pri-
mary objective such as the maintenance of union standards, may be
satisfied by a less-restrictive ‘‘union standards’’ clause. See, e.g.,
Chemical Workers Local 6-18 (Wisconsin Gas), 290 NLRB 1155
(1988).
2 The anti-dual-shop clause does not expressly state that it applies
only to work performed at a construction jobsite. However, express
language of this type is not required to satisfy the proviso’s require-
ments. See, e.g., Laborers Local 210 v. AGC, 844 F.2d 69 (2d Cir.
1988). Moreover, it appears from the record that all work performed
under the agreement would take place at a construction site and none
of the parties have argued that this is not the case. I also disagree
with my colleagues’ assertion that the clause would ‘‘extend the
contract between Respondent and a signatory employer’’ to a non-
union ‘‘breast.’’ To the extent that the nonunion entity is not an alter
ego of the signatory employer, it cannot, of course, be bound by the
signatory employer’s agreements. At most, the anti-dual-shop clause
would subject the signatory employer to liability in the event its pro-
visions were breached. See, e.g., Teamsters Local 216 v. Granite
Rock Co., 851 F.2d 1190 (9th Cir. 1988).
if an understanding is reached, to embody the under-
standing in a signed agreement.
ORDER
The National Labor Relations Board orders that the
Northeast Ohio District Council of the United Brother-
hood of Carpenters and Joiners of America, AFL–CIO,
its officers, agents, and representatives, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with Ernest
Alessio Construction Company, Inc. by insisting to im-
passe to secure its proposed anti-dual-shop clause.
(b) In any like or related manner failing or refusing
to bargain in good faith with Ernest Alessio Construc-
tion Company, Inc. concerning wages, hours, or other
terms and conditions of employment for employees in
the appropriate bargaining unit.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain collectively in good faith
with the above-named Employer as the exclusive rep-
resentative of the employees in the unit herein found
appropriate, and embody in a signed agreement any
understanding reached.
(b) Post at its business offices and meeting halls
copies of the attached notice marked ‘‘Appendix.’’24
Copies of the notice, on forms provided by the Re-
gional Director for Region 8, after being signed by the
Respondent’s authorized representative, shall be posted
immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all
places where notices to members of the Respondent
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 material. The
Respondent shall also sign and return to the Regional
Director sufficient copies of the notice for posting by
Ernest Alessio Construction Company, Inc., if willing,
at all places where notices to employees are custom-
arily posted.
(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.
MEMBER DEVANEY, concurring in part and dissenting
in part.
I agree with my colleagues that the anti-dual-shop
clause violates Section 8(e) of the Act, inasmuch as
the record in this case does not establish that the
clause had as its objective preservation of bargaining
unit work and no other primary objective has been
suggested.1 However, the construction industry proviso
to Section 8(e) protects agreements between labor or-
ganizations and construction industry employers ‘‘re-
lating to the contracting or subcontracting of work to
be done at the site of the construction, alteration, paint-
ing, or repair of a building, structure, or other work.’’
29 U.S.C. § 158(e). I would find that the anti-dual-shop
clause is such an agreement and therefore is not un-
lawful.
The anti-dual-shop clause falls within the literal
terms of the proviso. In effect, the clause prohibits a
signatory employer from maintaining common owner-
ship or affiliation with an entity performing on a non-
union basis work similar to that performed under its
collective-bargaining agreement using employees simi-
lar to those covered by the agreement.2 As such, the
clause relates to the contracts and subcontracts the
nonunion ‘‘breast’’ will enter into by requiring that
they be performed under the terms and conditions of
employment specified in the agreement.
In this regard, I find no merit to the General Coun-
sel’s contention that the proviso must be limited in its
application to agreements which relate to the signatory
employer’s contracting and subcontracting practices or
else the phrase ‘‘relating to the contracting or sub-
contracting of work’’ would be superfluous. To the
contrary, the legislative history of the proviso reveals
that this phrase was included for the purpose of ex-
cluding from the proviso’s protection boycotts of
1031CARPENTERS DISTRICT COUNCIL OF NORTHEAST OHIO (ALESSIO CONSTRUCTION)
3 Senator Kennedy, on behalf of the Senate conferees for the bill
that became the Labor Management Reporting and Disclosure Act,
stated that
it should be particularly noted that the proviso relates only to
the ‘‘contracting or subcontracting of work to be done at the site
of the construction.’’ The proviso does not cover boycotts of
goods manufactured at an industrial plant for installation at the
jobsite, or suppliers who do not work at the jobsite.
2 Leg. Hist. 1433.
4 As the Board noted in Carvel,
were the proviso given such a limited applicability, it would be
of little effect, for aside from the general contractor on a job,
the various firms involved normally have control only of ‘‘unit’’
work that is, the particular work for which they hold a sub-
contract. Restrictions on the right to subcontract such work
could well be primary, and thus lawful without regard to the
construction industry proviso.
152 NLRB at 1676.
5 I find unpersuasive my colleagues’ efforts to distinguish Carvel.
My colleagues assert that the anti-dual-shop clause would automati-
cally apply the terms of the union’s contract to nonsignatory em-
ployers, while the clause in Carvel did not. As I have previously
shown, however, the instant clause does not and cannot bind an em-
ployer which has not agreed to be bound by it. Rather, like the
clause in Carvel, the anti-dual-shop clause prohibits signatory em-
ployers from ‘‘doing business’’ with employers who are not covered
by a contract with the union. In Carvel, the prohibited business rela-
tionship was to work on specified jobsites. Under the instant clause,
the prescribed business relationship is acquisition of ownership or
control of a nonunion ‘‘breast.’’
6 Although the agreements at issue in Carvel and Swimming Pool
Gunite applied to jobsites at which the signatory employer’s employ-
ees were present, while the anti-dual-shop clause applies to the non-
union breast’s contracts and subcontracts at all jobsites, it is well set-
tled that the proviso protects agreements which apply to jobsites at
which no union members are employed. Woelke & Romero Framing
v. NLRB, 456 U.S. 645 (1982).
goods used at the jobsite or boycotts of nonjobsite sup-
pliers.3 Thus, there is no evidence that Congress
wished to limit the proviso to agreements regarding the
signatory employer’s contracting and subcontracting
and every reason to believe that the restrictive lan-
guage in the proviso cited by the General Counsel ad-
dresses an entirely different concern. Under these cir-
cumstances, I am persuaded that the proviso, by its
terms, is broad enough to encompass agreements—like
the anti-dual-shop clause—which regulate the con-
tracting and subcontracting of entities other than the
signatory employer.
Although my colleagues are correct that no case di-
rectly addresses this issue, the rationale and holdings
of several decisions indicates that the proviso may be
read to encompass agreements like the anti-dual-shop
clause. In this regard, the Board has previously stated
that the proviso applies to agreements regarding con-
tracting or subcontracting of work by an employer
other than the employer with whom the union has an
agreement. Plumbers Local 217 (Carvel Co.), 152
NLRB 1672 (1965), enfd. in pertinent part 361 F.2d
160 (1st Cir. 1966). See also Hod Carriers District
Council of Southern California (Swimming Pool Gun-
ite), 158 NLRB 303, 307 fn. 14 (1966) (vacating ear-
lier holding that clause allowing employees to cease
working on project declared ‘‘unfair’’ outside proviso
because not related to contracting or subcontracting).
In Carvel Co., the Board approved an agreement
which precluded the employer from assigning unit em-
ployees to any job on which other workers performed
work within the union’s jurisdiction under employment
conditions different from those in the parties’ collec-
tive-bargaining agreement. In finding this agreement
lawful, the Board expressly noted that ‘‘[t]he language
of the proviso itself does not limit its applicability to
the ‘contracting out’ or ‘subcontracting’ of work by the
employer with whom the union has an agreement with-
in the scope of Section 8(e).’’ Id. at 1676.4 Thus, the
Board held that the application of the proviso does not
depend on the precise relations between the signatory
employer and those other employers and persons who
may be affected by enforcement of the challenged
agreement. Id.5
Our decisions in Carvel and Swimming Pool Gunite
thus recognize that the proviso is not limited in its ap-
plication to agreements which address the signatory
employer’s contracting or subcontracting practices. I
see no reason to depart from our precedents in this
area, and would therefore find that the anti-dual-shop
clause—which addresses the contracting and subcon-
tracting practices of the nonunion side of a double-
breasted construction employer—is protected by the
proviso as well.6
This interpretation of the proviso is consistent both
with prior Board decisions and with key provisions of
the legislative history. As my colleagues note, Senator
John F. Kennedy, the chairman of the conference com-
mittee on the Labor Management Reporting and Dis-
closure Act of 1959, stated that the proviso is applica-
ble both to ‘‘promises not to subcontract work to a
nonunion contractor’’ and to ‘‘all other agreements in-
volving understandings not to do work on a construc-
tion project site with other contractors or subcontrac-
tors regardless of the precise relation between them.’’
2 Leg. Hist. 1433 (LMRDA). Contrary to my col-
leagues, I think that this statement does not refer only
to undertakings by a signatory employer not to do
work on a jobsite where nonunion labor is present.
Rather, the broad language employed by Senator Ken-
nedy indicates to me that the proviso protects agree-
ments regardless of the ‘‘precise relationship’’ between
the signatory employer and the employer whose con-
tracting or subcontracting are addressed by the agree-
ment.
Even if my colleagues are correct, however, an un-
dertaking not to do work on a jobsite where nonunion
labor is present functions primarily as a restraint on the
contracting and subcontracting practices of employers
other than the signatory. It is true that such under-
takings prevent a signatory employer from accepting a
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Of course, a union may not resort to means of enforcement pro-
hibited by Sec. 8(e) in the event an undertaking of this type is vio-
lated.
8 See Befort, Labor Law and the Double-Breasted Employer: A
Critique of the Single Employer and Alter Ego Doctrines and a Pro-
posed Reformulation, 1987 U. Wisc. L. Rev. 67 (1987); D’Amico v.
Painters District Council 51, 120 LRRM 3473, 3474–3475 (D.Md.
1985).
9 If necessary to resolve the case, I would also find that the pro-
posed anti-dual-shop clause ‘‘vitally affects’’ unit employees in that
it would protect their employment standards from competition from
below-contract wages, and, as such, was a mandatory subject of bar-
gaining over which the Union could lawfully bargain to impasse. See
Allied Chemical & Alkali Workers Local 1 v. Pittsburgh Plate Glass
Co., 404 U.S. 157, 179 (1971).
contract if nonunion labor is present at the jobsite at
the time. However, the undertaking would also be vio-
lated if, for example, the general contractor subse-
quently replaced one of the other subcontractors with
a nonunion firm—an action that has nothing to do with
the signatory employer’s contracting and subcon-
tracting practices. Under these circumstances, the un-
dertaking is only concerned with the general contrac-
tor’s subcontracting practices and is thus functionally
indistinguishable from the anti-dual-shop clause.7 In
light of my colleagues’ apparent concession that such
undertakings are lawful, I can see no reason why the
proviso should not be interpreted to protect the anti-
dual-shop clause as well.
Finally, construing the proviso to protect the anti-
dual-shop clause is consistent with the Congressional
concerns which led to the proviso’s inclusion in Sec-
tion 8(e). Congress adopted the proviso
not only to avoid the unique jobsite friction that
could exist when union and nonunion workers
were employed on the same construction site, but
also to recognize the ‘‘close community of inter-
ests’’ inherent in the construction industry, where
the wages and working conditions of one set of
employees could often affect those of another.
AGC, supra, 844 F.2d at 76. As the Supreme Court
recognized in Woelke & Romero, ‘‘Congress concluded
that the community of interests on the construction
jobsite justified the top-down organizational con-
sequences that might attend the protection [by the pro-
viso] of’’ otherwise unlawful secondary agreements.
456 U.S. at 663. For the same reason, the proviso pro-
tects agreements which exert ‘‘bottom-up’’ organiza-
tional pressures, such as agreements not to subcontract
work from a nonunion employer. AGC, supra. In my
view, double-breasting is at least as significant a threat
to the ‘‘close community of interests’’ in the construc-
tion industry as the subcontracting practices at issue in
AGC, and agreements which address that threat should
therefore also be protected by the proviso.8
In this regard, I cannot agree with my colleagues’
assertion that the anti-dual-shop clause is not protected
by the proviso because it exerts secondary pressures
‘‘horizontally’’ rather than ‘‘vertically.’’ Attempts to
distinguish between clauses with ‘‘top-down’’ and
‘‘bottom-up’’ organizational pressures have previously
been rejected by the courts, and my colleagues do not
state why their novel horizontal-vertical distinction is
entitled to greater deference. As the Second Circuit
noted in AGC, supra,
the potential anti-democratic effect of such a
clause on workers, however, is no different than
that created by the more typical clause discussed
in Woelke; it still tends to create a pressure that
will emanate from management downward within
the structure of any given employer.
844 F.2d at 76. For all of the foregoing reasons, I
would find that the Union’s anti-dual-shop clause is
protected by the construction industry proviso to Sec-
tion 8(e).
Failure to Bargain in Good Faith
I would also find that the Union did not violate Sec-
tion 8(b)(3) of the Act by insisting to impasse on
agreement with respect to the anti-dual-shop clause.
The General Counsel argues that the Union was not
privileged to bargain to impasse over the clause be-
cause it has purely secondary objectives and thus does
not relate to the wages, hours, and working conditions
of unit employees. We have previously rejected this
contention. Hod Carriers District Council of Southern
California (Swimming Pool Gunite), 158 NLRB 303,
305–306 (1966). As we noted in Hod Carriers Local
1082 (E. L. Boggs Plastering Co.), 150 NLRB 158,
165 (1964), the Union has the right, pursuant to Sec-
tion 8(b)(4)(A), to strike to obtain an agreement pro-
tected by the proviso, and ‘‘[i]t would be anomalous
to hold in the instant circumstances that this right was
taken away under Section 8(b)(3).’’ I would therefore
dismiss the complaint.9
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL not refuse to bargain in good faith with
Ernest Alessio Construction Company Inc. (Alessio) by
insisting to impasse, as a condition of agreement, that
it agree to the proposal that the agreement apply to
other employers, in which it has a direct or indirect
1033CARPENTERS DISTRICT COUNCIL OF NORTHEAST OHIO (ALESSIO CONSTRUCTION)
1 The parties have stipulated (G.C. Exh. 2) that by merger effective
March 1, 1988, the Northeast Ohio District Council of the United
Brotherhood of Carpenters and Joiners of America, AFL–CIO be-
came the successor of Respondent Summit, Medina and Portage
Counties District Council.
ownership interest, which engage in the same or simi-
lar line of business using the same or similar classi-
fications of employees within the jurisdiction of this
Union.
WE WILL, on request, bargain collectively in good
faith with Alessio as the exclusive collective-bar-
gaining representative of the employees in the appro-
priate unit and embody in a signed agreement any un-
derstanding reached.
NORTHERN OHIO DISTRICT COUNCIL OF
THE UNITED BROTHERHOOD OF CAR-
PENTERS AND JOINERS OF AMERICA,
AFL–CIO
Mark Carissimi, Esq., for the General Counsel.
Stephen A. Markus, Esq. (Ulmer & Berne), of Cleveland,
Ohio, for the Respondent.
Dean E. Westman, Esq. (Buckingham, Doolittle & Bur-
roughs), of Akron, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. This case
was tried in Akron, Ohio, on November 8, 1988. The charge
was filed February 6, 1986, and the complaint was issued
April 30, 1986.
The primary issue is whether the Union (the Respondent),1
unlawfully bargained to impasse over a dual-shop clause in
violation of Section 8(b)(3) of the National Labor Relations
Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Union, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, is a general contractor in the
construction industry in Akron, Ohio, where it annually ships
goods valued over $50,000 directly outside the State. I find
that the Company is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act
and that the Union is a labor organization within the meaning
of Section 2(5).
II. ALLEGED UNFAIR LABOR PRACTICES
A. Proposed Dual-Shop Clause
Faced with a growing problem of nonunion competition
(Tr. 104), the Union in 1984 proposed (G.C. Exhs. 4, 5) a
market recovery program for private sector work and an ad-
dendum to the 1982–1985 Carpenter’s agreement with the
Akron division of the Associated Contractors of Ohio, Inc.
The addendum would extend this master agreement to May
11, 1987, and freeze the wage increases scheduled for June
1 and December 1, 1984.
The proposed ‘‘Operation Turnaround/Market Recovery’’
agreement would permit the payment of 80 percent of the
wage rate on certain jobs and add a dual-shop clause as the
second paragraph to the subcontractor clause (art. 14, p. 9)
in the 1982–1985 master agreement. The amended subcon-
tractor clause read (G.C. Exh. 5. art. 5):
(1) This Agreement shall bind all subcontractors
while working for a contractor on the jobsite upon
whom this Agreement is binding. Any contractor who
sublets any of his work must sublet same, subject to
this Agreement.
(2) In the event that the partners, stockholders or
beneficial owners of the company form or participate in
the formation of another company which engages or
will engage in the same or similar type of business en-
terprise in the jurisdiction of this Union and employs
or will employ the same or similar classifications of
employees covered by this Collective Bargaining Agree-
ment, then that business enterprise shall be manned in
accordance with the referral provisions herein and cov-
ered by all the terms of this contract. [Added paragraph
emphasized.]
The Company, which withdrew from the employer asso-
ciation in the mid-1970s (Tr. 11), had signed the 1982–1985
master agreement with minor changes. It sought the wage re-
duction, but refused to join other contractors in agreeing to
the dual-shop clause (Tr. 138). It had never been affiliated
with a nonunion construction company (Tr. 12).
On June 10, 1985, during separate negotiations after the
May 31 expiration of the Company’s 1982–1985 agreement
with the Union, President Lino Alessio wrote the Union pro-
posing further concessions ‘‘for our firm to be competitive
and remain in business’’ (G.C. Exh. 10). These proposals in-
cluded a reduction in the journeyman wage rate on all except
prevailing wage jobs to $12 an hour including fringe benefit
payments, a reduction of over 35 percent.
On August 6, 1985, Alessio again wrote the Union, point-
ing out that ‘‘we have met four times regarding negotiating
a new labor agreement’’ and adding (G.C. Exh. 11):
I stated that I could not sign an agreement containing
a subcontractor’s clause (which I personally feel is not
legal or a mandatory bargaining item), nor the Market
Recovery Agreement without adjustment in Articles I,
II, omission of V, omission of VII—Para. 6, and X.
Alessio was refusing to sign an agreement that included not
only paragraph 2 of article 5, the dual-shop clause that the
General Counsel contends is illegal, but also paragraph 1,
which the General Counsel concedes is legal (Tr. 46).
Alessio listed as well other provisions to which he objected.
Notes of the August 21, 1985 meeting (R. Exh. 10, p. 1)
indicate that the company counsel told the Union: ‘‘We do
not want any subcontracting clause’’ because the Company
wants ‘‘to be free to use whomever we want to, whenever
we want to’’ and the Company ‘‘will employ nonunion if so
desire.’’
1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The complaint alleges that since August 21, 1985, the
Union has ‘‘demanded as a condition of consummating any
collective-bargaining agreement that [the Company] agree to
include’’ paragraph 2 of article 5, which is ‘‘prohibited by
Section 8(e) of the Act’’ and ‘‘is not a provision regarding
terms and conditions of employment’’ of unit employees.
B. Bargaining Impasse over Dual-Shop Clause
The General Counsel contends that the Company and
Union were at an impasse over the dual-shop clause.
The Union contends that ‘‘the impasse in negotiations was
not caused by the Union’s insistence’’ on this paragraph 2
of article 5. ‘‘As [the Company itself admitted, it was unwill-
ing to enter into any agreement with the Union that con-
tained any subcontractor clause—even the admittedly law-
ful’’ paragraph 1 (Tr. 73, 76–77) and an impasse was
reached on other proposals as well.
In rejoinder the General Counsel contends: ‘‘Suffice it to
say that there is undisputed evidence that [the Company] ob-
jected to both paragraphs specifically and that the Union
never withdrew the second paragraph from its proposal.’’
I agree with the General Counsel that since August 21,
1985, the Union has demanded the inclusion of the paragraph
2 dual-shop clause as a condition for consummating an
agreement with the Company. Although the Union permitted
other contractors to sign the 1982–1987 Carpenter’s agree-
ment (G.C. Exh. 15) and later the 1987–1990 Carpenter’s
agreement (R. Exh. 11) without signing the market recovery
agreement, those contractors (listed in R. Exhs. 7, 8) were
willing to pay the full wage rates on all jobs. The Company,
on the other hand, was insisting on a reduced wage rate on
certain jobs (Tr. 27, 145).
It is well established, as the General Counsel points out
(at 9): ‘‘The fact that the parties were at impasse over other
issues that were mandatory subjects is immaterial in finding
that the Act has been violated by bargaining to impasse over
a nonmandatory subject. ‘‘ The Supreme Court held in NLRB
v. Borg-Warner Corp., 356 U.S. 342, 346–347 (1958), which
involved ‘‘ballot’’ and ‘‘recognition’’ clauses that were not
mandatory subjects of bargaining:
From the time that the company first proposed these
clauses, the employees’ representatives . . . made it
clear that each was wholly unacceptable. The Com-
pany’s representative made it equally clear that no
agreement would be entered into by it unless the agree-
ment contained both clauses. In view of this impasse,
there was little further discussion of the clauses, al-
though the parties continued to bargain as to other mat-
ters.
The Court upheld the Board’s finding that the employer vio-
lated Section 8(a)(5) by insisting on the clauses ‘‘as a condi-
tion precedent to accepting any collective-bargaining con-
tract.’’
Similarly here, the Company made it clear, from the time
the Union first proposed the dual-shop clause, that the clause
was unacceptable. The Union made it equally clear that its
demand for the clause was a condition for signing an agree-
ment containing a wage concession that the Company re-
quired. Moreover, in a Motion for Summary Judgment sub-
mitted to the Board on January 15, 1987 (G.C. Exh. 1(n), pp.
6–7), the Union admitted that it ‘‘has demanded as a condi-
tion of consummating any collective-bargaining agreement
with [the Company] that the [Company] agree to include the
work-preservation [dual-shop] clause in such agreement.’’
I find that the Company and the Union reached an impasse
over the inclusion of the proposed dual-shop clause, which
the General Counsel contends is an unlawful secondary
clause that violates Section 8(e) and a nonmandatory subject
of bargaining.
C. Is Clause Prohibited by Section 8(e)?
1. Primary or secondary clause
Section 8(e) makes it an unfair labor practice for a union
and an employer ‘‘to enter into any . . . agreement, express
or implied, whereby such employer . . . agrees to . . . cease
doing business with any other person.’’ The construction in-
dustry proviso exempts, an agreement between a union and
‘‘an employer in the construction industry relating to the
contracting or subcontracting of work to be done at the site
of the construction.’’
It is well established that the 8(e) prohibition and the con-
struction industry proviso apply only to clauses that are sec-
ondary in nature. As found by the Supreme Court in NLRB
v. Plumbers Local 638 (Austin Co.), 429 U.S. 507, 517
(1977): ‘‘Section 8(e) does not prohibit agreements made for
‘primary’ purposes, including the purpose of preserving for
the contracting employees themselves work traditionally done
by them.’’
The General Counsel contends that the dual-shop clause is
secondary, not primary. Citing Austin Co., the General Coun-
sel points out that ‘‘The Court noted that a lawful work-pres-
ervation agreement must pass two tests: (1) the objective of
the agreement must be preservation of work for members of
the unit rather than some secondary goal, and (2) the ‘right
of control’ test . . . must be satisfied.’’ The General Counsel
then argues:
The concept of primary work preservation, as an ob-
ject not outlawed by Section 8(e), is defined in terms
of preserving the work of employees (the unit) of the
employer who is obligated to bargain with the union as
the representative of such employees. In order for a
contract provision to constitute lawful work preserva-
tion, the clause must seek to protect the work of a par-
ticular bargaining unit against actions or decision by the
employer of such unit. That employer must control the
work to be preserved and the clause must be addressed
at regulating such control.
The [dual-shop clause] has a clear secondary thrust
for it does not bar the diversion or assignment of work
which would otherwise be performed by the employees
of the [Company]. Rather, the disputed clause allows
such work to be performed by an entity in which the
‘‘partners, stockholders or beneficial owners’’ of a sig-
natory employer formed or participated in the forma-
tion. The clause thus allows unit work to be performed
by the employees of separate employers and accord-
ingly is a secondary clause. [Emphasis added.]
I note that the General Counsel, by making this argument,
is conceding that the dual-shop clause relates to ‘‘the divi-
1035CARPENTERS DISTRICT COUNCIL OF NORTHEAST OHIO (ALESSIO CONSTRUCTION)
sion . . . of work which would otherwise be performed by
[bargaining unit] employees.’’
The Union contends that the dual-shop clause is a work-
preservation clause that is primary, not secondary, and there-
fore outside the proscription Section 8(e).
According to the Union, ‘‘The Work Preservation Clause
was designed . . . to preserve for union members the work
that had been traditionally performed’’ by them and to pre-
vent diversion of the work to the nonunion ‘‘breast’’ of a
double-breasted operation. ‘‘Moreover, [the Union] intended
that the clause would not apply unless there was control by
the signatory employer over the work of the nonunion com-
pany.’’ (Business Agent Steven Kasarnich credibly testified
(Tr. 126) that ‘‘we were asked by more than one contractor
what our intentions were’’ in proposing the clause, and the
Union explained that it would apply to ‘‘a company which
controlled or formed another operation with intent to divert
our work.’’)
Thus the Union contends that the dual-shop clause would
apply if the company (‘‘in the event that the partners, stock-
holders or beneficial of the company’’) forms a similar con-
struction company in the same area (‘‘form or participate in
the formation of another company which engages or will en-
gage in the same or similar type of business enterprise in the
jurisdiction of this Union’’) and employs employees doing
the same type of work (‘‘and employs or will employ the
same or similar classifications of employees covered by this
Collective Bargaining Agreement’’), ‘‘then that business en-
terprise shall be manned in accordance with the referral pro-
visions herein and covered by all the terms of this contract.’’
The Union was willing to, and did, sign the new master
agreement with other union contractors without demanding
the dual-shop clause. Yet, the Union was demanding that the
Company agree to the dual-shop clause as a condition for en-
tering into a new agreement. As President Alessio credibly
testified (Tr. 71), the Company was never offered the master
agreement without the market recovery agreement (which
contained the dual-shop clause in art. 5, par 2).
The Company was refusing to agree not only to this dual-
shop clause, but also to the subcontracting clause in the mas-
ter agreement. Although it had been a union contractor for
many years, it was stating (through its attorney) that it
‘‘wanted to be free to use whomever we want to, whenever
we want to’’ and that it ‘‘will employ nonunion (employees)
if so desire,’’ as found above.
Under these circumstances I find that the Union’s primary
purpose in demanding that the Company agree to the dual-
shop clause was to prevent the Company from forming, and
diverting union work to, a nonunion company rather than as-
signing work at the reduced wage rate to union employees
in the bargaining unit. The Union was obviously demanding
the dual-shop clause to prevent the Company from evading
the paragraph 1 subcontractor clause (which limited sublet-
ting to union companies) by forming a nonunion company to
perform work previously assigned to bargaining unit employ-
ees. The clause would require the Company’s newly formed
affiliate to abide by the union contract, preserving the bar-
gaining unit work and preventing the affiliate from diverting
the work to a nonunion operation.
I therefore agree with the Union that the dual-shop clause
‘‘is a lawful work preservation clause over which the Union
may bargain to the point of impasse.’’
2. The construction industry proviso
Even assuming that the dual-shop clause was secondary in
nature (being an agreement for the Company to ‘‘cease doing
business’’ with a newly formed separate enterprise within the
proscription of Section 8(e) and not a work-preservation
clause), I would find that the clause satisfies the require-
ments for exemption under the construction industry proviso
to Section 8(e).
The clause would be an agreement between the Union and
‘‘an employee in the construction industry’’ and would relate
to ‘‘the contracting or subcontracting of work’’ to or by a
similar construction company doing similar jobsite work ‘‘at
the site of the construction.’’ It is well established, as held
in Plumbers Local 217 (Carvel Co.), 152 NLRB 1672, 1676–
1677 (1965), that the proviso is not inapplicable because
‘‘the contract provision does not specifically refer to the
‘contracting out’ or ‘subcontracting’ of unit work,’’ or be-
cause the provision ‘‘may affect persons and employers with
whom [the primary employer] has no contractual relation-
ship.’’
In Carvel the employer agreed that no union member
would be required to work on any project on which a person
working under different conditions of employment would
perform work within the union’s jurisdiction. The Board held
that the clause was secondary and therefore within the gen-
eral prohibition of Section 8(e), but that the clause would
have been protected by the construction industry proviso ex-
cept for the self-enforcement provisions. The Board has re-
peatedly held that ‘‘Contractual provisions which authorize a
union to employ economic ‘self help’ to enforce secondary
subcontracting clauses are not authorized by the proviso to
Section 8(e).’’ Associated General Contractors, 280 NLRB
698, 703 (1986). Here, the General Counsel does not contend
that the Union was demanding any self-help provision to en-
force the dual-shop clause.
The General Counsel argues that the dual-shop clause falls
outside the construction industry proviso because the clause
‘‘applies to jobsites where neither the signatory employer
[the Company] nor its possible subcontractor [under the para-
graph 1 subcontractor clause] would be present but, rather,
only the nonsignatory affiliated company [formed by the
Company’s ‘‘partners, stockholders or beneficial owners’’].
The proviso may apply, however, when employees of the
union contractor or subcontractor are not present on jobsites
with nonunion workers. The Supreme Court so ruled in
Woelke & Romero Framing v. NLRB, 456 U.S. 645, 649,
666 (1982), which involves the application of the proviso to
a union signatory subcontracting clause in which the em-
ployer agreed ‘‘that neither he nor any of his subcontractors
on the jobsite will subcontract any work to be done at the
site of construction . . . except to a person . . . party to [the
appropriate union agreement].’’ The Court specifically ruled:
We hold that the construction industry proviso to
Section 8(e) of the National Labor Relations Act ordi-
narily shelters union signatory subcontracting clauses
that are sought or negotiated in the context of a collec-
tive-bargaining relationship, even when not limited in
application to particular jobsites at which both union
and nonunion workers are employed. [Emphasis added.]
1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
More recently in Operating Engineers Local 701 (Lease
Co.), 276 NLRB 597, 600–602 (1985), the Board held that
‘‘even clauses which are secondary in nature, i.e., intended
to affect the employment practices of other . . . employers
not party to the contract (emphasis added), and which are
within the general proscription of Section 8(e) may be lawful
and protected if they satisfy the requirements for exemption
under the construction industry proviso to Section 8(e).’’
Finding the owner-operator clause to be secondary (the union
not seeking ‘‘to preserve for employees in the bargaining
unit work which they have traditionally done or to recapture
or reclaim for unit employees work which they have pre-
viously performed or which otherwise constitutes ‘fairly
claimable’ work’’), the Board held the proviso would be ap-
plicable except for the self-enforcement features in the
clause. ‘‘Such secondary clauses can be enforced only
through recourse to judicial proceedings.’’
D. Concluding Findings
The complaint alleges that the Union refused to bargain in
good faith by demanding since August 21, 1985, as condition
for consummating any collective-bargaining agreement, that
the Company agree to the dual-shop clause that is prohibited
by Section 8(e) and not a provision regarding terms and con-
ditions of employment of bargaining unit employees.
As found, the Company and the Union did reach an im-
passe over the Union’s demand that the dual-shop clause be
included in any agreement with the Company.
I have found, however, that the dual-shop clause is not
secondary, but is a primary work-preservation clause. There-
fore, I agree with the Union that the clause is outside the
proscription of Section 8(e). In the alternative I have found
that even assuming that the dual-shop clause were secondary
in nature, the clause would be protected by the construction
industry proviso to Section 8(e). I therefore find that the
clause is not prohibited by Section 8(e).
Having found the dual-shop clause to be lawful, I reject
the allegation that the Union unlawfully demanded a clause
prohibited by Section 8(e). I also reject the allegation that the
dual-shop clause does not relate to the unit employees’ terms
and conditions of employment. As a lawful work presen-
tation clause, it does relate to the employees’ terms and con-
ditions of employment.
Moreover, even if the clause were secondary in nature, the
Board has repeatedly held that a union doesn’t violate Sec-
tion 8(b)(4)(A) by ‘‘picketing to obtain a contract clause
which is within the construction industry proviso to Section
8(e).’’ Northeastern Indiana Trades Council (Centlivre Vil-
lage), 148 NLRB 854, 856 (1964); Carpenters Local 944
(Woelke & Romero), 239 NLRB 241, 247–248 (1978). A
fortiori, if a union may lawfully picket for a secondary
clause protected by the construction industry proviso, it may
lawfully demand the clause in bargaining. As the Board
found in Laborers Local 1082 (Boggs Plastering), 150
NLRB 158, 165 (1964): ‘‘[B]y virtue of the construction pro-
viso to Section 8(e) Congress intended to permit unions in
this industry to strike for [clauses protected by the proviso].
It would be anomalous to hold . . . that this right was taken
away under Section 8(b)(3).’’
I therefore find that the Union lawfully demanded the
dual-shop clause.
CONCLUSION OF LAW
The Union did not unlawfully refuse to bargain in viola-
tion of Section 8(b)(3) by demanding that the dual-shop
clause be included in the agreement with the Company.
[Recommended Order for dismissal omitted from publica-
tion.]