Construction and General Laborers Union, Local 185

National Labor Relations Board - Board Decisions

Mar 18, 1981

255 N.L.R.B. 53 (N.L.R.B. 1981)

CONSTRUCTION AND GENERAL LABORERS UNION, LOCAL 185
Construction and General Laborers Union, Local
185, Laborers International Union of North
America, AFL-CIO; Cement Masons Local 582,
Operative Plasterers and Cement Masons Inter-
national Association, AFL-CIO and West-Cal
Construction, Inc. Cases 20-CC-2157 and 20-
CC-2158
March 18, 1981
DECISION AND ORDER
On September 26, 1980, Administrative Law
Judge David P. McDonald issued the attached De-
cision in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief.
Respondents have filed a motion to strike the Gen-
eral Counsel's exceptions and brief and the General
Counsel filed a response requesting that Respond-
ents' motion be denied.'
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge and to substitute for the Administrative Law
Judge's recommended Order, the following Order
and notices. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that:
A. Respondent Construction and General Labor-
ers Union, Local 185, Laborers International Union
of North America, AFL-CIO, its officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Picketing West-Cal Construction, Inc., for the
purpose of requiring West-Cal to enter into the
1977-80 Laborers' Master Agreement governing
subcontracting of construction site work.
' Respondents' motion to strike the General Counsel's exceptions and
brief is predicated on the grounds that they are defective in both form
and specificity required by Sec. 102.46(b) and (c) of the Board's Rules
and Regulations. We find no merit in Respondent's motion and hereby
deny it.
2 In the absence of exceptions, we adopt, proforma, the Administrative
Law Judge's findings and conclusions that Respondent Laborers violated
Sec. 8(b)(4A) and 8(b4)(XB) and that Respondent Cement Masons vio-
lated Sec. 8(bX4XB).
The General Counsel points out, correctly, that the Administrative
Law Judge erroneously stated that the complaint alleged a violation of
Sec. 8(e). Moreover, we note that the Administrative Law Judge did not
find, in his Decision or his Conclusions of Law, that either Respondent
violated Sec. 8(e). Hence, we shall eliminate par. A(lXa) from the Ad-
ministrative Law Judge's recommended order.
' We find merit in certain exceptions filed by the General Counsel to
the Administrative Law Judge's recommended Order and notice. These
exceptions are directed to conforming the Order to the Administrative
Law Judge's findings and conclusions and the issuance of separate no-
tices. Hence, we shall conform the Order and notices to the Administra-
tive Law Judge's substantive legal findings to which no exceptions have
been filed. See fn. 2, supra.
255 NLRB No. 3
(b) Picketing West-Cal's Gate 2 (Halyard Street)
in Sacramento so long as that gate is reserved for
the exclusive use of secondary or neutral employ-
ers or persons and their employees, with an object
of forcing or requiring West-Cal's neutral subcon-
tractors to cease doing business with West-Cal.
2. Take the following affirmative action:
(a) Post at its business office and meeting halls
copies of the attached notice marked "Appendix
A." 4 Copies of said notice, on forms provided by
the Regional Director for Region 20, after being
duly signed by an authorized representative of Re-
spondent Laborers Union, shall be posted by it im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to members are customarily posted. Reasonable
steps shall be taken by Respondent Laborers Union
to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Sign and deliver to the Regional Director for
Region 20 sufficient copies of said notice, to be fur-
nished by the Regional Director, for posting at the
premises of West-Cal, if willing.
(c) Notify the Regional Director for Region 20,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
B. Respondent Cement Masons Local 582, Oper-
ative Plasterers and Cement Masons International
Association, AFL-CIO, its officers, agents, and
representatives, shall:
1. Cease and desist from picketing West-Cal's
Gate 2 (Halyard Street) in Sacramento, so long as
that gate is reserved for the exclusive use of sec-
ondary or neutral employers or persons and their
employees, with an object of forcing or requiring
such neutral subcontractors to cease doing business
with West-Cal in order to force or require West-
Cal to cease doing business with G & L Concrete.
2. Take the following affirmative action:
(a) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix
B."5 Copies of said notice, on forms provided by
the Regional Director for Region 20, after being
duly signed by an authorized representative of Re-
spondent Cement Masons Union, shall be posted by
it immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where no-
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
5 See fn. 4, supra.
53
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tices to members are customarily posted. Reason-
able steps shall be taken by Respondent Cement
Masons Union to insure that said notices are not al-
tered, defaced, or covered by any other material.
(b) Sign and deliver to the Regional Director for
Region 20 sufficient copies of said notice, to be fur-
nished by the Regional Director, for posting at the
premises of West-Cal, if willing.
(c) Notify the Regional Director for Region 20,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
APPENDIX A
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten, coerce, or restrain
West-Cal Construction, Inc., by picketing at
the construction site on the property located at
Starboard Street and Halyard Drive, Sacra-
mento, California, where an object thereof is
to force or require West-Cal to enter into an
agreement which is prohibited by Section 8(a)
of the Act, as amended.
WE WILL NOT, by picketing or otherwise,
induce or encourage any employee of any
person engaged in an industry affecting com-
merce to refuse in the course of his employ-
ment to work or perform services where an
object of such union conduct is to force or re-
quire any person to cease doing business with
West-Cal Construction, Inc., at the construc-
tion site on the property located at Starboard
Street and Halyard Drive, Sacramento, Cali-
fornia.
CONSTRUCTION AND GENERAL LA-
BORERS UNION, LOCAL 185, LABOR-
ERS INTERNATIONAL UNION OF
NORTH AMERICA, AFL-CIO
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT, by picketing or otherwise,
induce or encourage any employee of any
person engaged in an industry affecting com-
merce to refuse in the course of his employ-
ment to work or perform services where an
object of such union conduct is to force or re-
quire any person to cease doing business with
West-Cal Construction, Inc., or require West-
Cal to cease doing business with G & L Con-
crete, at the construction site on the property
located at Starboard Street and Halyard
Drive, Sacramento, California.
CEMENT MASONS LOCAL 582, OPER-
ATIVE PLASTERERS AND CEMENT
MASONS INTERNATIONAL ASSOCI-
ATION, AFL-CIO
DECISION
STATEMENT OF THE CASE
DAVID P. MCDONALD, Administrative Law Judge:
This case was heard before me at Sacramento, Califor-
nia, on November 1, 1979, pursuant to an order consoli-
dating cases, consolidated complaint and notice of hear-
ing issued on July 10, 1979, by the Regional Director of
the National Labor Relations Board for Region 20. The
complaint is based upon original charges filed on June
26, 1979, and July 9, 1979,' by West-Cal Construction,
Inc., hereinafter called West-Cal. The complaint alleges
violations of Sections 8(e), 8(b)(4)(i) and (ii)(A), and
8(b)(4)(i) and (ii)(B) of the National Labor Relations Act,
as amended, hereinafter called the Act. Counsel for Re-
spondents filed answers on behalf of his clients, Con-
struction and General Laborers Union, Local 185, La-
borers International Union of North America, AFL-
CIO, hereinafter called Laborers Union; and Cement
Masons Local 582, Operative Plasterers and Cement
Masons International Association, AFL-CIO, hereinafter
called Cement Masons Union, on July 12, 1979.
All parties were afforded full opportunity to examine
and cross-examine witnesses, to introduce relevant evi-
dence, and to present oral argument.2 The counsel for
General Counsel and West-Cal timely filed their briefs.
Upon the entire record in this case, the briefs of the
parties, and my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
West-Cal, a California corporation with an office and
place of business in Hacienda Heights, California, has
been engaged in the building and construction industry
as a general contractor. During the past calendar year,
West-Cal, in the course and conduct of its business oper-
ations, received gross revenues in excess of $5 million
and purchased and received in California products,
I Unless otherwise specified all dates herein refer to the calendar year
of 1979.
2 Although counsel for Respondents had entered his appearance on
behalf of his clients, Laborers Union and Cement Masons Union, neither
he nor his clients appeared at the hearing. Counsel did not request a con-
tinuance nor did he provide an explanation as to his or his clients' ab-
sence. After waiting 2 hours, the hearing began at II a.m.
54
CONSTRUCTION AND GENERAL LABORERS UNION, LOCAL 185
goods, and materials valued in excess of $50,000 directly
from suppliers located outside the State of California.
Upon the foregoing, I find that at all times material
herein West-Cal has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
11. THE LABOR ORGANIZATIONS INVOLVED
Respondents, Laborers Union and Cement Masons
Union, each admit individually, and I find that, at all
times material herein, they were labor organizations
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues in this proceeding are whether La-
borers Union and Cement Masons Union violated Sec-
tion 8(b)(4)(i) and (ii)(A), and/or (B) of the Act. Specifi-
cally, the question raised by the complaint is whether the
picketing by Respondent Laborers in support of its
demand that West-Cal entered into a memorandum
agreement binding it to the Laborers 1977-80 Master
Agreement was with the object of forcing West-Cal to
enter into an agreement which was prohibited by Section
8(e) of the Act in violation of Section 8(b)(4)(i) and
(ii)(A) of the Act. In addition, whether Respondent La-
borers' and Respondent Cement Masons' picketing of
West-Cal and its subcontractor G & L Concrete at the
reserved gate, set aside for neutral or secondary employ-
ers, violated Section 8(b)(4)(i) and (ii)(B) of the Act.
Final determination of this issue rests on the question of
whether Respondents were endeavoring to engage in a
proscribed "top/down" of organizing nonunion subcon-
tractors within in the meaning of the Supreme Court's
Connell decision.3
B. Pertinent Facts
West-Cal is engaged in the supervision of the building
of motels for California Six Motels, Inc. It has built simi-
lar motels throughout the State of California and is pres-
ently engaged in completing motels in Oregon and Sac-
ramento, California. In this capacity, West-Cal limits its
operation to the supervision of the construction of the
motels. At the Sacramento jobsite, its employees were
limited to John R. Norton, superintendent for West-Cal,
and Timothy Alan Murphy, assistant superintendent. The
president of the corporation, John Baird Norton, the
father of John R. Norton, occasionally visited the jobsite.
The actual construction of the building was performed
by various subcontractors such as Can Am Plumbing, G
& L Concrete, River City Mechanical, Ted May Con-
struction, and Rayco Electric. Some of the subcontrac-
tors used union men, but West-Cal did not have a union
agreement with any union.
West-Cal does not employ statutory employees; it em-
ploys only the superintendent and assistant superintend-
ent at the project. It has subcontracted the entire project
and has no employees performing construction work.
a Connell Consrruction Company. Inc. v. Plunhber & Seanilters Local
tO0. et al., 421 U.S 616 (175)
West-Cal does not have a contract or a collective-bar-
gaining relationship with Respondent Laborers or Re-
spondent Cement Masons.
West-Cal commenced construction on the Sacramento
motel in May 1979. It is located at the intersection of
Starboard Street and Halyard Drive. A job office was lo-
cated at the site which was utilized by Norton and
Murphy. It is possible to enter the property either from
Starboard Street (gate 1) or Halyard Drive (gate 2).
C. The Alleged Unlawful Conduct
On May 22, Frank Campos appeared at the jobsite and
introduced himself to Timothy Murphy as the business
representative for the Laborers Union. He wanted to
know who was actually building the structure and who
was in charge of the site. After Murphy explained that
he was the assistant superintendent of the project,
Campos urged him to sign the 1977-80 Laborers' Master
Agreement, which he handed to him. Although Campos
urged him to sign it at that time in order to make it a
union job, Murphy explained that he was new and did
not know the extent of his authority in such matters,
therefore he would check with Norton, the president of
West-Cal. No one was present during this conversation.
Murphy turned the Laborers' Master Agreement over to
the president on June 26. Thereafter, Campos appeared
at the jobsite on a daily basis for approximately I week
and then every other day. Although the president and
Campos made several attempts to see each other, the
meeting was never consummated since the president was
seldom at that jobsite.
On another occasion, Campos appeared at the site near
the latter part of May when he met John R. Norton, the
superintendent, outside his job office. He introduced
himself to Norton as the business representative for La-
borers Local 185, and asked Norton who he was, who
were the contractors on the job, and were they union.
At this initial meeting, Norton explained that he did not
in fact know the names of all the contractors nor wheth-
er or not they were, in fact, union. A few days later,
they met again and Norton responded that both Can Am
Plumbing and G & L Concrete would use laborers, al-
though Norton thought that Can Am Plumbing was
unionized, he was not certain as to the status of G & L
Concrete. At this point, Campos insisted that he wanted
his men on the job wherever laborers were needed.
Norton responded that he was not responsible for hiring
the laborers since this was all handled by the various
subcontractors, and that if he wished to picket the job-
site, he would set up a 2-gate system in order to segre-
gate the job from union and nonunion.
On or about June 20, Murphy observed Campos arrive
at the jobsite with four men. Two of the men took posi-
tions, as pickets, at the Halyard gate and two at the Star-
board gate. The men carried two different placards. The
first read:
55
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
UNFAIR LABOR PRACTICES
WEST-CAL CONSTRUCTION
LABORERS LOCAL 185
The second read:
UNFAIR LABOR PRACTICES
G & L CONCRETE
LABORERS LOCAL 185
Within 3 or 4 days after the picketing began, Ohnie
Oakley, the business agent of Cement Masons Union, ap-
peared at the jobsite. Norton inquired as to why Oakley
was present and he responded that he wanted his
Cement Masons on the project. The picketing continued
for approximately 3 weeks.
On approximately June 27, West-Cal established re-
served gates at the Halyard and Starboard entrances to
the project.4 The sign which appeared on the Starboard
Street entrance (gate 1) read:
THIS GATE RESERVED FOR THE
EXCLUSIVE USE OF
WEST CAL CONST. CO.
TED MAY CONST. CO.
G & L CONCRETE CO.
ALL OTHERS USE GATE 2
At gate 2 (Halyard Street), the sign read:
THIS GATE RESERVED FOR THE
EXCLUSIVE USE OF ALL CONTRACTORS,
SUBCONTRACTORS, THEIR EMPLOYEES
AND SUPPLIERS
EXCEPTION
WEST CAL CONST. CO.
TED MAY CONST. CO.
G & L CONCRETE CO.
THEIR EMPLOYEES AND SUPPLIERS MUST USE
GATE I ONLY
The following identical telegrams were forwarded to
both Respondent Unions on June 27:
A reserved gate system has been established at 1254
Halyard Road, a construction site in West Sacra-
mento. Your present picketing is unlawful. Unless
you cease this unlawful activity we are taking ap-
propriate legal action against your labor organiza-
tion.
Subsequent to June 21, Respondent Unions maintained
the following placards at both gate 1 and gate 2:
UNFAIR LABOR
WEST-CAL CONSTRUCTION
LABORERS LOCAL 185
(and on the reverse side of the placard)
4 Apparently West-Cal had previously attempted to establish reserved
gates at the project but these gates failed to conform to the requirement
of Electrical Workers Local 761 [General Electric Company] v. L.R.B.,
366 U.S. 667 (1961).
G & .-UNFAIR
DOES NOT OBSERVE
PREVAILING RATES OF
WAGES AND WORKING
CONDITIONS ON THIS JOB
CEMENT MASONS 582
At various times during the picketing, both Murphy
and Norton observed the following suppliers refused to
cross the picket line and deliver the supplies to the sub-
contractors on this site: Syar Industries, Ready-Mixed
Concrete, Norpac Lumber, Georgia Pacific Lumber,
Diamond International, Sierra Springwater, Amer-Cal
Sanitation, and Canteen Chuck Wagon Food Service.
These supplies were not for West-Cal since they were in
a supervisory capacity, but were intended for the various
subcontractors who were actually constructing the
motel.
IV. ANALYSIS AND CONCLUSIONS
A. Reserved Gate Entrance
Laborers Union initiated its picketing with two men at
the Halyard gate and two men at the Starboard gate on
June 20. Its signs indicated unfair labor practices by
West-Cal and G & L Concrete. A few days later, Ohnie
Oakley, Respondent Cement Masons' business repre-
sentative, visited the project and demanded that his men
be used on the job. On June 21, West-Cal set up a two-
gate system in order to isolate neutral employers from
the labor dispute. Apparently, these reserved gates did
not conform to the requirements of Electrical Workers
Local 761 v. N.L.R.B., supra. After consulting with their
attorneys, the reserved gate signs were modified and cor-
rected as of June 27. On the same date, West-Cal sent
telegrams to the Unions informing them of the reserved
gate system and that their picketing was unlawful. Al-
though the signs clearly set out that West-Cal, Ted May
Construction and G & L Concrete and their employees
and suppliers could only use gate 1 (Starboard Street),
and all others were to use gate 2 (Halyard Street), both
Laborers Union and Cement Masons Union ignored the
reserved gate signs and continued to picket both gates
for 3 weeks. At all times, the integrity of the gates was
maintained.
In the present case, the Laborers had a dispute with
West-Cal and the Cement Masons with G & L Concrete.
There were several other subcontractors also working at
this same location who were required to use either gate 1
or gate 2 in order to complete their work.
A union may lawfully picket a primary employer with
whom it has a legitimate dispute at a common situs so
long as its conduct is consistent with that limited objec-
tive. However, it may not picket the common situs
where its objective is to cause others to stop doing busi-
ness with the primary employer or other persons. Calvert
General Contractors, Inc., 249 NLRB 1183 (1980). There-
fore, when a separate gate is established to the common
situs and is properly maintained for the use of the pri-
mary employer and its suppliers, the union is limited to
picketing that gate. If the union pickets the neutral gate
56
CONSTRUCTION AND GENERAL LABORERS UNION, LOCAL 185
reserved for other employers at the common situs, it vio-
lates the Act.
The language of the reserved gate signs and the tele-
grams placed the Unions on notice that they should limit
their pickets to gate 1. The Respondents did not have a
primary labor dispute with any employer or supplier
using gate 2. As a result of their continued picketing of
both gates, many suppliers refused to cross the picket
lines and refused to deliver to the subcontractors who
were not parties to this dispute.
Since the Unions did not have a dispute with these
other subcontractors, their continued picketing of both
gates was obviously an attempt to force West-Cal to sign
the Laborers' Master Agreement and to do business only
with subcontractors who hire union members on this
project. Such conduct by Laborers and Cement Masons
is a secondary boycott activity, and is prohibited by Sec-
tion 8(b)(4)(i) and (ii)(B) of the Act:
It shall be an unfair labor practice for a labor or-
ganization or its agents . . . to engage in, or to
induce or encourage any individual employed by
any person engaged in commerce or in an industry
affecting commerce to engage in, a strike or a refus-
al in the course of his employment to use, manufac-
ture, process, transport, or otherwise handle or
work on any goods, articles, materials, or commod-
ities or to perform any services; or to threaten,
coerce, or restrain any person engaged in commerce
or in an industry affecting commerce, where in
either case, an object thereof is:
. . . forcing or requiring any person to cease
using, selling, handling, transporting, or other-
wise dealing in the products of any other produc-
er, processor, or manufacturer, or to cease doing
business with any other person ....
On the basis of the above, and the record as a whole, I
find that Laborers Union and Cement Masons Union en-
gaged in picketing with an object of forcing or requiring
secondary employers to cease doing business with West-
Cal and G & L Concrete. They picketed for a period of
approximately 3 weeks beginning on June 20 at both
gates, including the neutral gate 2 (Halyard Street),
which was reserved for subcontractors and their suppli-
ers with whom the Unions had no dispute. Their picket-
ing was in violation of Section 8(b)(4)(i) and (ii)(B) of
the Act.
B. Section 8(e)
The circumstances preceding the picketing are not in
dispute. West-Cal subcontracted all of the work at the
Sacramento jobsite and was not responsible for the hiring
or firing of any of the subcontractors' employees. Al-
though Campos was informed of these facts, he insisted
that West-Cal should require the subcontractors to hire
his union laborers. Later, Oakley made a similar demand
in regard to his union cement masons. Campos had also
urged Murphy, as the representative of West-Cal, to sign
the 1977-80 Laborers' Master Agreement. When neither
Murphy nor any other representative of West-Cal would
sign the agreement, the Unions initiated the picketing at
both entrances of the jobsite.
As previously noted, the Laborers' Master Agreement
is effective from 1977 to 1980. It contains the following
provisions pertinent to this proceeding:
Section I -Subcontractors
The terms and conditions of this Agreement insofar
as it affects Employer and the individual employer
shall apply equally to any subcontractor of any tier
under the control of, or working under oral or writ-
ten contract with such individual employer on any
work covered by this Agreement to be performed
at the job site or job yard, and said subcontractor
with respect to such work shall be considered the
same as an individual employer covered hereby.
Subject to the provisions of this Section and any
other Section of this Agreement applicable to sub-
contractors, if an individual employer shall subcon-
tract work herein defined, such subcontract shall
state that such subcontractor agrees to be bound by
and comply with the terms and provisions of this
Agreement.
A subcontractor is defined as any person, firm or
corporation who agrees under contract with the
Employer, or any individual employer, or a subcon-
tractor of the Employer, or any individual employ-
er to perform on the job site any part or portion of
the construction work covered by the prime con-
tract, including the operation of equipment, per-
formance of labor and installation of materials.
An individual employer who provides in the sub-
contract that the subcontractor will pay the wages
and benefits and will observe the hours and all
other terms and conditions of this Agreement, shall
not be liable for any delinquency by such subcon-
tractor in the payment of any wages or fringe bene-
fits provided herein, including payments required by
Section 28 (Health & Welfare, Pension, Vacation-
Holiday-Dues Supplement and Training & Retrain-
ing Funds) except as follows:
The individual employer will give written notice to
the Union of any subcontract involving the per-
formance of work covered by this Agreement
within five days of entering such subcontract, and
shall specify the name and address of the subcon-
tractor. Written notice at a pre-job conference shall
be deemed written notice under this provision for
those subcontractors listed at the pre-job only. Noti-
fication to the Union of any subcontractor not listed
in writing at the pre-job must still be given in ac-
cordance with this paragraph.
If thereafter such subcontractor shall become delin-
quent in the payment of any wages or benefits as
above specified, the Union shall promptly give writ-
ten notice thereof to the individual employer and to
the subcontractor specifying the nature and amount
of such delinquency.
57
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If such notice is given, the individual employer shall
pay and satisfy only the amount of any such delin-
quency by such subcontractor occurring within 75
days prior to the receipt of said notice from the
Union, and said individual may withhold the
amount claimed to be delinquent out of the sums
due and owing by the individual employer to such
contractor.
In the event the individual employer fails to give
written notice of a subcontract as required herein,
such individual employer shall be liable for all de-
linquencies of the subcontractor on that job or pro-
ject without limitation.
The individual employer shall not be liable for any
such delinquency if the Local Union where the de-
linquency occurs refers any employee to such sub-
contractor after giving such notice and during the
continuance of such delinquency.
Section 9-Grievance Procedure
Any dispute concerning the interpretation and ap-
plication of this Agreement . . . the following pro-
cedure will apply:
3. If said grievance or dispute is not satisfactorily
adjusted by the appropriate Local Union or other-
wise authorized Union Representative and the indi-
vidual employer or his representative within three
days after submission to the individual employer,
the matter may be submitted by either party to a
permanent Board of Adjustment created for the set-
tlement of such disputes.
4. The Board of Adjustment shall be composed of
two members named by the Union, two members
named by the Association and an impartial Arbitra-
tor. At any point in the proceedings should the
panel be unable to reach a majority vote, the Arbi-
trator shall participate and his decision shall be final
and binding.
7. Decision of the Board of Adjustment or an Im-
partial Arbitrator shall be within the scope and
terms of this Agreement and shall be final and bind-
ing upon all parties hereto.
8. In the event an individual employer fails to
comply with any such decisions, the Union may
withdraw employees or strike the individual em-
ployer and such action shall not be a violation of
this Agreement so long as such noncompliance con-
tinues.
Section 27-Employees Not to Be Discharged For
Recognizing Authorized Picket Lines
No employee covered hereby may be discharged by
any individual employer for refusing to cross a
picket line established by an international union af-
filiated with the Building and Construction Trades
Department of the American Federation of Labor-
Congress of Industrial Organizations or a Local
Union thereof, or the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America or a Local Union thereof, which picket
line has been authorized or sanctioned by the local
Building and Construction Trades Council having
jurisdiction over the area in which the job is locat-
ed after the individual employer involved has been
notified and has had an opportunity to be heard.
Said notice shall be in writing and mailed to the in-
dividual employer involved at his last known ad-
dress. This Section shall not apply to jurisdictional
disputes.
MEMORANDUM AGREEMENT
It is hereby mutually understood and agreed by and
between the undersigned individual employer and
the Northern California District Council of Labor-
ers for and on behalf of all affiliated Local Unions
in the 46 Northern California Counties hereinafter
referred to as Union that for and in consideration of
services performed and to be performed by Labor-
ers for the individual employer, the individual em-
ployer agrees to comply with all wages, hours, and
working conditions set forth in the Laborers'
Master Agreement for Northern California June 16,
1977, through June 15, 1980 (which agreement is in-
corporated herein by reference and a copy of which
has been delivered to me and receipt of which is
hereby expressly acknowledged), which amends,
modifies, supplements, and renews each and every,
all and singular previous Laborers' Master Agree-
ments or individual employer Memorandum Agree-
ment in the construction industry in the 46 North-
ern California Counties and any future modifica-
tions, changes, amendments, supplements, extensions
or renewals of or to said Master Agreement which
may be negotiated between the parties thereto for
the term thereof.
Notwithstanding any provisions of the Master
Agreement or this Agreement, the Union reserves
the right to strike the individual employer for al-
leged contract violations or breach of this Agree-
ment and such strike shall not be deemed a breach
of contract by the Union. The Union at its sole
option may process any alleged breach of contract
through the grievance and arbitration procedures of
the Master Agreement or by strike or both. Submis-
sion of any grievance involving the undersigned in-
dividual employer shall be to the permanent neutral
arbitrator provided in the grievance procedure of
58
CONSTRUCTION AND GENERAL LABORERS UNION, LOCAL 185
the Master agreement. Claims for unpaid wages or
trust fund contributions may be submitted to the
labor commission at the sole option of the Union or
the appropriate trust fund at anytime, in addition to
any other remedy provided by the Master Agree-
ment or this Agreement or by law ....
Section 8(e) of the Act prohibits unions and employers
from entering an agreement by which the employer
agrees to refrain from dealing in the products of another
employer or to cease doing business with another person.
If the Laborers' Agreement violates Section 8(e) of the
Act, then the picketing which was utilized to force or re-
quire West-Cal to sign the agreement would be a viola-
tion of Section 8(b)(4)(i) and (ii)(A) of the Act. There-
fore, the first question which must be resolved is wheth-
er those clauses in the Laborers' Agreement are pro-
scribed by Section 8(e). In interpreting and applying Sec-
tion 8(e), neither the Board nor the courts have conclud-
ed that Congress intended to prohibit every agreement to
which it could apply. The Supreme Court, in National
Woodwork Manufacturers Association, et al. v. N.L.R.B.,
386 U.S. 612 (1967), held that agreements which seek to
preserve traditional bargaining unit work for unit em-
ployees by limiting or proscribing the subcontracting of
that work does not fall within the prohibitions of Section
8(e), because the objectives of such clauses are primary.
The Court held that the determination of whether a
clause and its enforcement violated Sections 8(e) and
8(b)(4)(B):
. . .cannot be made without an inquiry into wheth-
er, under all the surrounding circumstances, the
Union's objective was preservation of work for
Frouge's employees, or whether the agreements and
boycott were tactically calculated to satisfy union
objectives elsewhere.
Therefore, if the clause in question provides a legitimate
method by which the union can protect its traditional
bargaining unit work, it is lawful as a primary interest of
the union. When the clauses go beyond this primary in-
terest of work preservation and tend to limit the employ-
er's freedom to do business with individuals of his
choice, or it inserts an element of control over the work-
ing conditions of another employer, then it is secondary
and prohibited.
Section II of the 1977-80 Laborers' Master Agree-
ment provides that the agreement "shall apply equally to
any subcontractor" and further limits subcontracting to
subcontractors who agree "to be bound by and comply
with the terms and provisions of this Agreement." In a
similar case, Los Angeles County District Council of Car-
penters, 242 NLRB 801 (1979), the Board held that such
subcontracting provisions constitute restrictions on doing
business within the meaning of Section 8(e). In the pres-
ent case, the two phrases represent "union signatory"
clauses which plainly require subcontractors "to be
bound by and comply with the terms and provisions of
this Agreement," thus requiring subcontractors to do
S Id. at 644.
more than maintain union work standards. 6 As stated in
Los Angeles County District Council of Carpenters, supra:
The Board has found "union signatory" clauses vio-
lative of Section 8(e) because they have a secondary
thrust directed at furthering general union objec-
tives and regulating labor policies of employers
other than employers party to the clauses. 7
In addition, the Memorandum requiring the subcontrac-
tor to establish and make contributions to jointly admin-
istered health and welfare and pension funds is a union
signatory clause within the meaning of Section 8(e) of
the Act. A distinction is made between a clause which
provides for equivalent union wages hours and which are
considered the primary objectives of a union and, there-
fore, lawful, as opposed to a clause calling for equivalent
benefits which are considered secondary objectives of a
union and, therefore, in violation of Section 8(e). 8 In the
present case, the clauses in question are secondary and in
violation of Section 8(e) since Respondent Laborers has
no legitimate interest in insisting that employees of sub-
contractors have health and welfare benefits equivalent
or identical to those of West-Cal employees.
I find that the requirements of Section 11 are within
the general proscription of Section 8(e). The remaining
question is whether these clauses are privileged by the
construction industry proviso of that section. The restric-
tions meet the express requirements of the proviso since
they relate to jobsite work in the construction industry.
C. Construction Industry Proviso
Although Section 8(e) makes it an unfair labor practice
for an employer and union to enter into an agreement,
express or implied, whereby the employer agrees to
cease doing business with any other person, there is a
statutory exception, commonly referred to as the con-
struction industry proviso, or proviso. The proviso of
Section 8(e) provides:
That nothing in this subsection shall apply to an
agreement between a labor organization and an em-
ployer 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 ....
Therefore, if the clause in question is found in a con-
struction industry contract, it may be proscribed by the
general provisions of Section 8(e) as having secondary
objectives; however, the same clause may be privileged
under the proviso.
In 1975 the Supreme Court in Connell Construction,
421 U.S. 616, reviewed the proviso as it related to the
6 See Local 437. International Brotherhood of Electrical Workers. .4FL-
CIO. et at (Dimeo Construction Co.), 180 NLRB 420 (1969).
? See Carpenters Local No. 944, United Brotherhood of Carpenters and
Joiners of America. AFL-CIO. et al. (Woelke Romero Framing. Inc.).
239 NLRB 241 (1978). 609 F.2d 1341 (9th Cir. 1979); Los Angeles Build-
ing and Construction Trades Council (Donald Schrtver. Inc.), 239 NLRB
264 (1978).
" See Heavy Highway Building and Construction Teamsters. e al. (Cali-
fornia Dump Truck Owners Associaton). 227 NLRB 269 (1976).
59
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
antitrust case. Plumbers Local 100 was the bargaining
representative for workers in the plumbing and mechani-
cal trades in Dallas, Texas. It was also a party to a mul-
tiemployer bargaining agreement with the Mechanical
Contractors Association of Dallas. The agreement con-
tained a "most favored nation" clause, which provided
that if it granted a more favorable contract to any other
employer it would extend the same terms to all members
of the association. Connell Construction Company was a
general building contractor in Dallas. It obtained jobs by
competitive bidding and in turn awarded subcontracts on
the sole basis of competitive bidding. As a result, it dealt
with both union and nonunion subcontractors. It subcon-
tracted all plumbing and mechanical work. Connell's em-
ployees were represented by various building trade
unions. None of them were members of Local 100, and
the subcontracting agreement contained the union's ex-
press disavowal of any intent to organize or represent
them.
In November 1970, Local 100 picketed Connell in an
attempt to force it to sign a contract under which Con-
nell would subcontract mechanical and plumbing work
only to firms that had a current contract with Local 100.
The company signed under protest and then filed an anti-
trust suit against the union. The Court majority rejected
the argument that the union's agreement with Connell
was expressly authorized by the construction industry
proviso to Section 8(e) and was, therefore, lawful under
the antitrust laws. Although the provisions of the agree-
ment came within the literal language of the proviso, the
Court concluded that Congress intended the proviso to
extend only to subcontracting agreements "in the context
of collective bargaining relationships" and only to partic-
ular job sites. The Court held:
We therefore hold that this agreement, which is
outside the context of a collective-bargaining rela-
tionship and not restricted to a particular jobsite,
but which nonetheless obligates Connell to subcon-
tract work only to firms that have a contract with
Local 100, may be the basis of a federal antitrust
suit because it has a potential for restraining compe-
tition in the business market in ways that would not
follow naturally from elimination of competition
over wages and working conditions.
In arriving at its decision, the Court reviewed the con-
gressional history of the construction industry proviso,
which was explained in the congressional hearings by
only the bare references to "pattern of collective bar-
gaining in the industry." The Court perceived that the
proviso was enacted, in part, to overrule the effects of
N.LR.B. v. Denver Building and Construction Trades
Council, et al., 341 U.S. 675 (1951). In that case, the
Court upheld the decision of the Board that by engaging
in a strike, an object of which was to force the general
contractor on a construction project to terminate its con-
tract with a subcontractor employing nonunion labor on
the project, the respondent labor organization committed
an unfair labor practice within the meaning of Section
8(b)(4)(A) of the Act. In Justice Douglas' dissent, he
points out that the basic desire and protest of union men
throughout the history of the trade unions was simply to
retain the freedom of not being compelled to work
alongside nonunion men on the same job. Apparently, it
was the desire and intent of Congress, when the proviso
was ennacted, to avoid these jobsite frictions which
result when union and nonmembers work "shoulder to
shoulder" at a common construction jobsite.
The facts in the present case are similar to Connell and
Colorado Building and Construction Trades Council, 239
NLRB 253 (1978). In the latter case, the Utilities Serv-
ices Engineering Company was engaged in municipal
utility industrial construction and in maintenance oper-
ations. On one of their projects, they had a contract with
Johns-Manville Corporation to perform electrical mainte-
nance work at the Johns-Manville Corporation Research
and Development Center. Normally, Utilities Services
did not use the services of subcontractors and did not on
the Manville project. The employees of Utilities Services
were not represented by any labor organization. There
was never a collective-bargaining agreement between
Utilities Services and the respondent labor organization.
In early April, the union's business agent requested that
Utilities Services sign an agreement governing the use of
subcontractors on construction jobsite work and also in-
formed them that the union would picket those who
failed to sign. On April 22, the union picketed the Johns-
Manville Research and Development Center site. The
picket signs contained the following statement:
UTILITIES SERVICES ENGINEERING, INC., has no sub-
contracting agreement with Colorado Building and
Construction Trades Council.
We have no dispute with any other person or com-
pany on this project.
The respondent union argued that even if their proposed
clause was within the general proscription of Section
8(e), it was privileged or protected by the proviso. The
Board stated:
In Woelke and Romero Framing, Inc.,9 a compan-
ion case for oral argument, we concluded that the
Connell decision construed the construction industry
proviso to Section 8(e) to permit subcontracting
clauses such as that in the instant case in the context
of a collective-bargaining relationship. We further
noted that the Connell court suggested that such
clauses might be protected by the proviso even
without a collective-bargaining relationship if they
were directed toward the problems raised by the
close relationship between contractors and subcon-
tractors at the construction site and/or to the reduc-
tion of friction that may be caused when union and
nonunion employees are required to work together
at the same jobsite. '
The Board concluded that the respondent union was
seeking a subcontracting clause outside the context of a
collective-bargaining relationship and thereby lost the
protection of the proviso.
9 Carpenters Local No. 944, supra.
I' Colorado Building and Construcrion Trades Council, supra at 256.
60
CONSTRUCTION AND GENERAL LABORERS UNION, LOCAL 185
In the present case, Respondent Laborers Union is a
"stranger" to West-Cal. There are no bargaining agree-
ments between the two. The Laborers does not represent
anyone at the jobsite. West-Cal does not have employees
at the jobsite other than two members of management,
nor is there any reason to believe from the evidence that
it will have such employees in the future, which might
justify the clause in a prehire context under Section 8(f)
of the Act.
Both the Court in Connell and the Board in subsequent
cases have alluded the possible protection of the proviso
when there is no collective-bargaining relationship if
"the clause is addressed to problems posed by the
common situs relationships on a particular jobsite or to
the reduction of friction between union and nonunion
employees at a jobsite.""I The agreement offered by the
Laborers Union is not related to the problems posed by
the common situs relationship or potential friction of
union and nonunion members working "shoulder to
shoulder." The contract is not limited to times and places
where Respondents' members would be working on the
project. In general, the clauses are directed toward the
interest of the Union in obtaining work and have nothing
to do with the problems of common situs.
Therefore, I find that the proposed agreement was
outside the context of a collective-bargaining agreement
and thereby loses the protection of the proviso, thus, it
violates Section 8(e) of the Act and Respondent Labor-
ers Union's picketing to obtain the agreement violated
Section 8(b)(4)(ii)(A) of the Act.
Self-Help Provisions
The General Counsel and the attorney for the Charg-
ing Party correctly assert that even if the union signato-
ry secondary subcontracting clause contained in the
1977-80 Laborers' Master Agreement was privileged
under the construction industry proviso of Section 8(e)
of the Act, it would still violate Section 8(e) because of
the "self help" provisions and an overly broad "picket
line" clause. Accordingly, picketing to obtain such an
agreement violates Section 8(b)(4)(i) and (ii)(A) of the
Act.
It is settled that, "although a contract within the con-
struction industry proviso to Section 8(e) is exempt from
the proscription of that Section, it may be enforced only
through lawsuits and not by threats, coercion, or re-
straint proscribed by Section 8(b)(4)(B)." Ets-Hokin Cor-
poration, 154 NLRB 839, 840 (1965), enfd. sub nom.
N.L.R.B. v. International Brotherhood of Electrical Work-
ers, AFL-CIO, Local No. 769, 405 F.2d 159, 162-163 (9th
Cir. 1968), cert. denied 395 U.S. 921 (1969). When Con-
gress allowed certain onsite "hot cargo" agreements, it
did not intend to change the law prohibiting nonjudicial
enforcement of such contracts.'2 The policy underlying
that proscription was based on "practical judgment on
the effect of union conduct in the framework of actual
disputes and what is necessary to preserve to the em-
ployer the freedom of choice that Congress has de-
I Colorado Building and Construction Trades Council. supra.
12 Local Union No. 48 of Sheet Metal Workers International Association
v. The Hardy Corporation, 332 F 2d 682 (5th Cir. 1964)
creed." Local 1976, United Brotherhood of Carpenters and
Joiners of America, AFL, et al. [Sand Door and Plywood
Co.], 357 U.S. 93, 107 (1958). Thus, in enacting the pro-
viso, Congress made it clear that such an agreement
could not be enforced by picketing or economic action.
Muskegon Bricklayers Union No. 5, Bricklayers, Masons
and Plasterers International Union of North America,
AFL-CIO (Greater Muskegon General Contractors Associ-
ation), 150 NLRB 360 (1965), enfd. 378 F.2d 859 (6th
Cir. 1967).
In the instant case, there are areas of self-help pro-
vided in the Master Agreement. In Section 9, subsection
8, the Respondent Laborers retained authority to with-
draw employees from the jobsite or strike the employer
if employer fails to comply with a decision arising from
the grievance/arbitration provisions. A dispute arising
under Section 11-Subcontractors-may be submitted to
the grievance/arbitration procedure. In this manner, Re-
spondent Laborers is permitted by Section 9, subsection
8, of the agreement to strike West-Cal to enforce the sec-
ondary subcontracting clause. The Board has held that
such subcontracting clauses are unprivileged because
they constitute means of "self enforcement" or "self
help" of the subcontracting clauses.1 3
In addition, the sixth paragraph in the Memorandum
of Agreement reserves the option of striking or proceed-
ing through grievance, or both, if the employer breaches
the Memorandum Agreement. Also, Section 27 provides
that an employee may not be discharged for refusing to
cross a picket line established by an international union
affiliated with the Building and Construction Trades De-
partment of the AFL-CIO, or a local union affiliated
with the AFL-CIO, or the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or one of its local affiliates, which picket line
was authorized or sanctioned by the local Building and
Construction Trades Council having jurisdiction over the
area in which the job is located. The General Counsel
correctly contends that the clause is also unlawful under
Section 8(e) of the Act since it is sufficiently broad to
authorize participation by a signatory employer's em-
ployees in secondary picketing and strikes. Consequently,
the Master Agreement is not entitled to the protection of
Section 8(e) of the Act, and picketing to force West-Cal
Construction to sign this agreement violates Section
8(b)(4)(i) and (ii)(A) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent Unions set forth in
section Ill, above, occurring in connection with the
West-Cal's operations described in section 1, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States, and tend to
lead, and have led, to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
"a Lot .4ngele County Distrtcl Council of Carpenters. 242 NLRB 801
(1979).
61
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent Laborers Union has en-
gaged in unfair labor practices in violation of Section
8(b)(4)(i), (ii)(A) and (B) of the Act, and further, that the
Respondent Cement Masons Union has engaged in unfair
labor practices in violation of Section 8(b)(4)(i) and
(ii)(B) of the Act, I shall recommend they cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. West-Cal Construction, Inc., is an employer en-
gaged in commerce and in an industry affecting com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Construction and General Laborers Union, Local
185, Laborers International Union of North America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. Cement Masons Local 582, Operative Plasterers and
Cement Masons International Association, AFL-CIO, is
a labor organization within the meaning Section 2(5) of
the Act.
4. The agreement governing subcontracting of con-
struction site work is one into which Respondent Unions
and the Charging Party may not lawfully enter, under
the provisions of Section 8(e) of the Act, by reason of
self-enforcement provisions. By picketing in an effort to
force West-Cal into signing this agreement, Respondent
Laborers Union did coerce and restrain West-Cal and
did thereby engage in unfair labor practices in violation
of Section 8(b)(4)(i) and (ii)(A) of the Act.
5. By picketing for 3 weeks, beginning on June 17,
1979, at a construction site entrance, gate 2, which was
reserved for subcontractors and suppliers with whom
Laborers Union and Cement Masons Union had no dis-
pute, in furtherance of a dispute with West-Cal and its
subcontractor, G & L Concrete, the Unions violated Sec-
tion 8(b)(4)(i) and (ii)(B) of the Act, which violations are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
62