International Union of Operating Engineers

National Labor Relations Board - Board DecisionsNov 13, 1978

239 N.L.R.B. 274 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local No. 701, AFL-CIO; Oregon-Columbia Chapter,The Associated General Contractors of America, Inc. and Pacific Northwest Chapter of the Associated Builders & Contractors, Inc. Case 36 CE-16 November 13, 1978 DECISION AND ORDER Upon charges filed by Pacific Northwest Chapter of the Associated Builders & Contractors, Inc. (herein called ABC), on April 26. 1977,' and duly served on International Union of Operating Engi- neers, Local No. 701, AFL-CIO (herein called Engi- neers), and Oregon-Columbia Chapter, The Associ- ated General Contractors of America, Inc. (herein called AGC), the General Counsel of the National Labor Relations Board, acting through the Regional Director for Region 19, on September 20, issued and served on Respondents an amended complaint and notice of hearing. The complaint alleges that Re- spondents entered into an agreement containing a subcontracting clause and an intertwining self-help provision whereby AGC and its employer-members have agreed to cease doing business with other per- sons in violation of Section 8(e) of the National La- bor Relations Act, as amended (herein called the Act). On October 3, 1977, Respondents filed, and duly served on ABC and the General Counsel, their answer to the amended complaint in which they de- nied the commission of any unfair labor practices. Thereafter, on December 2, 1977, Respondents, ABC, and counsel for the General Counsel entered into a stipulation of facts and motion to transfer the proceedings to the Board, wherein they agreed that the charges, the amended complaint, the answer to the amended complaint, and the stipulation of facts, including the exhibits attached thereto, shall consti- tute the entire record herein and that no oral testi- mony is necessary or desired by any of the parties. The parties further stipulated that they waive hearing before an Administrative Law Judge, the making of findings of fact and conclusions of law by an Admin- istrative Law Judge, and the issuance of an Adminis- trative Law Judge's Decision, and desire to submit these cases for findings of fact, conclusions of law, and Order directly by the Board. The parties, how- ever, expressly limited the stipulation of facts for the purposes of this proceeding only. In addition, the parties reserved the right to object to the relevancy. materiality, or competency of any of the facts stated in the stipulation. All dates are 1977. unless otherwise indicated. On January 16, 1978, the Board issued an order approving the stipulation and transferring the pro- ceedings to the Board and set a date for the filing of briefs. Thereafter, Respondents, ABC, and the Gen- eral Counsel filed briefs in support of their respective positions. In addition, briefs amici curiae were filed on behalf of the American Federation of Labor and Congress of Industrial Organizations, the Building and Construction Trades Department, AFL-CIO, and the Chamber of Commerce of the United States of America.2 Pursuant to a notice of hearing issued by the Board on February 8, 1978, oral argument in this case and related proceedings 3 was held before the Board in Washington, D.C., on February 23, 1978. In addition to arguments presented by the parties in- volved in the several proceedings, permission to ar- gue orally as amici curiae was granted to the Cham- ber of Commerce of the United States of America, the American Federation of Labor and Congress of Industrial Organizations, the Building and Construc- tion Trades Department, AFL-CIO, and the Labor- ers International Union of North America, AFL- CIO. The Board has considered the entire record herein as stipulated by the parties, the briefs of the parties and the amici curiae, and the oral arguments made to the Board, and hereby makes the following findings and conclusions: i. THE BUSINESS OF RESPONDENT AGC Respondent AGC is an association of employers engaged in the construction industry throughout Or- egon and part of the State of Washington. The em- ployer-members of AGC, including H. A. Anderson Company, Inc., have delegated their collective-bar- gaining authority to the AGC for the purpose of, in- ter alia, negotiating and entering into collective-bar- gaining contracts on behalf of its employer-members with the bargaining representatives of their employ- ees, including Engineers. The employer-members of AGC, in the course and conduct of their businesses. annually purchased goods, materials, and supplies valued in excess of $50,000, which were shipped to said employer-members directly from States of the United States other than the States of Oregon and 2The Chamber's brief is primarily addressed to the issues raised in 239 NLRB 264. but also speaks to issues raised by this proceeding. IColorado Building & Construction Trades Council (Utilities Services Engi- neering, Inc.), 239 NLRB 264 (1978); Los Angeles Building and Construction Trades Council and Local Union No. 1497, United Brotherhood of Carpenters a Joiners of America (Donald Schriver, Inc. and Sullivan-Kelly & Associates), 239 N LRB 264 (1978); Carpenters Local No. 944, United Brotherhood of Car- penters and Joiners of America, AFL-CIO; and Carpenters Local No. 235, United Brotherhood of Carpenters and Joiners of A menrica, A FL-CIO (Woelke & Romero Franming, Inc.), 239 NLRB 241 (1978). 274 OPERATING ENGINEERS, LOCAL NO. 701 Washington. The parties stipulated, and we find, that AGC is, and has been at all times material herein, an association of employers engaged in commerce with- in the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that Respon- dent Engineers is now, and has been at all times ma- terial herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues 1. Is the subcontracting clause, article VIll, sec- tion 1, contained in Respondents' current collective- bargaining agreement proscribed by the general pro- vision of Section 8(e) of the Act, and, if so, is the clause protected by the first proviso thereto? 2. If lawful by itself, does the subcontracting clause in Respondents' current collective-bargaining agreement, when read in conjunction with articles IX and X, violate Section 8(e) of the Act? B. The Stipulated Facts As stated, AGC has at all material times herein been an organization of employer-contractors which has been delegated authority for the purpose of nego- tiating and entering into collective-bargaining agree- ments on behalf of its employer-members with the bargaining representatives of their respective em- ployees, including Engineers. On or about June 1, 1975, AGC and Engineers entered into a collective-bargaining agreement, effec- tive June 1, 1975, through May 31, 1980, which con- tained, inter alia, the following relevant provisions: ARTICLE VIIll Subcontractors and Other Employers Section 1. Employers shall not contract any work covered by this Agreement to be done at the site of the construction, alteration, painting, or repair of a building, structure or other work to any person, firm or company who does not have an existing labor agreement with the Union covering such work. Section 3. The Employer shall be responsible and liable for payment of all sums of money required by all terms of this, Agreement incurred by any subcontractor. The parties agree the Ad- ministrative Trust Office shall notify an Em- ployer within thirty (30) calendar days of any and/or all delinquent payments of monetary contributions due the Trust Office by any and/ or all subcontractors used by said Employer. The Employers further agree they will notify the Administration Trust Office of any and,;or all subcontractors (company name and address) used by said Employer on any job and/or proj- ect. If the Employer has notified the Trust Of- fice of said subcontractors and the Trust Office should fail to notify the Employer within the specified time limitations, then the Employer shall be relieved of all responsibility for the subcontractor's delinquent payments to the ap- plicable Trust Funds. ARTICLE IX Settlement of Disputes Section 5. Should the parties involved fail to comply' with the findings within five (5) days af- ter such written notification by either party or fail to comply with any of the provisions and/or time limits established in this Article, unless mu- tually agreed to extend such limits, then all means of arbitration shall be considered ex- hausted. Either party may take such action as they deem necessary to enforce the findings and/or time limits and they shall not be considered in viola- tion of any part of this Agreement. ARTICLE X Strikes and Lockouts Section 1. Unless otherwise provided herein. it is mutually agreed that there will be no strikes or lockouts, or cessation of work by either party. for the duration of this Agreement. All disputes arising under this Agreement shall be submitted to the procedures for the settlement of disputes as provided in this Agreement and/or any ad- dendum relating thereto. At all times material herein, Engineers has contin- ued, and is continuing, to give effect to article VIII and article IX and has attempted to enforce article VIll by filing grievances againat AGC employer- members pursuant to the master agreement. Engineers, for example, filed a grievance on No- vember 22. 1976. claiming that H. A. Anderson Company. Inc.. violated the subcontractor clause bx subcontracting work covered by the master agree- ment to a subcontractor that did not have an existing 275 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract with Engineers covering such work, the sub- contracting having occurred on an Anderson con- struction project in Clackamas. Oregon. During the 12-month period of the project. there were substan- tial periods of time when no Anderson unit employ- ees repesented by Engineers were present on the job- site. C. Contentions of the Parties The subcontracting proposals The General Counsel, Respondent AGC, and ABC all contend that the subcontracting provision in the current AGC-Engineers collective-bargaining agreement is proscribed by Section 8(e) of the Act. Specifically, General Counsel, Respondent AGC, and ABC urge that the clauses here are secondary and not privileged by the construction industry pro- viso to Section 8(e) of the Act because they are at substantial variance with the Supreme Court's dis- cussion of the construction industry proviso in Con- nell Construction Co., Inc. v. Plumbers and Steamfit- ters Local Union No. 100, 421 U.S. 616 (1975). Furthermore, General Counsel, Respondent AGC, and ABC urge that, even if the subcontracting clause herein is privileged by the proviso to Section 8(e), the "self-help" provision in article IX of the collective- bargaining agreement removes whatever protections this clause might otherwise enjoy under the proviso. Respondent Engineers contends initially that the subcontracting clause in issue is a lawful "primary" clause aimed at protecting unit work, with "unit" being defined as the unit coextensive with the scope of the multiemployer bargaining association. Beyond this, Respondent Engineers contends that, even if the subcontracting clause herein is secondary in nature, it is nonetheless privileged by the construction indus- try proviso to Section 8(e). Finally. Respondent En- gineers urges that article IX of its current collective- bargaining agreement with AGC is not a "self-help" clause of the type or character which the Board has found illegal under Section 8(e). Instead, Engineers urges that the "enforcement" aspects of article IX are aimed at the enforcement of the grievance-arbitra- tion machinery in the contract rather than to the use of economic action to force compliance with the sub- contracting provision itself. D. Discussion and ('onclusion.s The subcontracting clause Turning initially to the subcontracting clause itself. we must determine whether the clause is primary or secondary in nature. If the clause is primary, then Section 8(e) 4 has no application whatsoever, and the Union may engage in whatever actions it could otherwise take absent the restraints of Section 8(e). On the other hand, if the clause is secondary, then Section 8(e) and the proviso come into play and limit the procedures which may be utilized to obtain or enforce the operation of the clause. The subcontracting clause in the instant case pro- vides that employers signatory to the Engineers- AGC agreement shall not subcontract any jurisdic- tionally relevant work to any subcontractor who does not have an existing labor agreement with the Union ("Union" is defined by the parties as Engineers). By its terms the clause herein permits performance of unit work by employees covered under other labor agreements with Engineers and not shown to be within the bargaining unit covered by the agreement between Respondents. Accordingly, the primary or secondary character must be evaluated by an exami- nation of whether the conditions of the clause are limited to a requirement that subcontractors observe "the equivalent of union wages, hours and the like." 5 Clearly, the clause herein does not limit subcon- tracting to firms which pay the equivalent of the con- tract wages, hours, etc., contained in the Engineers- AGC agreement, but instead limits subcontracting to "signatory" firms. This type of union "signatory" clause is the type which we have consistently held is not concerned with the preservation of primary unit work, but one aimed at limiting the firms to those which AGC members may subcontract.6 Therefore, we find that article VIII herein is a secondary clause. Having determined that the clause is secondary, however, we must now consider the contentions of the General Counsel, Respondent AGC, and ABC that the clause is not protected by the construction industry proviso to Section 8(e) because of the Su- preme Court's decision in Connell Construction Co., Inc., siupra. Sec. 8(e) provrides thatl It shi;ll be an unfair labor practice for any labor organization and an, enrplpoer to enter into an' conlracl or agreemenl. express or implied. Ahcrehy such emplo)er ceases or refrains or agrees to cease or refrain from lhandling, using, selling. Iransporting or otherwise dealing with ani, orf he products of any other emploer, or to cease doing business with .ian other person. anl ana connltrauct or agreement entered into heretofore or hereafter containing such an agreement shall be to such tenteni unenforceable and void: Proided. That nothing in this subset- ron (e) shall apply to an agreement between a labor organization and an emploser in the construction industr) relating to the contracting or suhbcontr.acting of uwork to he dcone at the site of the construction, alter- atiln. painting. or rep;llr of a hbuilding structure, or otther swork .. lm, la 43?', lnternatlonal Brotherhood ,t Electrimal Wo*rkers, 4'1, ('10 l)iD,,t ( ortnrl iot! (o.). 180 N L RB 420 ( 196). " Heavl HighwaY, Building and Constructlon Teamrrser Committee for Northernt ('a!thrnia. / B'. Iet al (C alif-rnia Dumtp ru' A Ow. ners A 1ol torion)L 227 NI RB 269 ( 19761 (thenl-Melmhber .:alning and Member Jenkins dissent- Inig iI part) 276 OPERATING ENGINEERS. LOCAL NO. 701 In Woelke & Romero Framing. Inc., companion case to the instant one and also issued this day, we concluded that the Supreme Court's Connell decision construed the construction industry proviso to Sec- tion 8(e) to permit subcontracting clauses such as the one contained in the Engineers-AGC contract herein. For the reasons expressed in Woelke & Rome- ro, supra, we find that the subcontracting clause in the instant case is privileged by the construction in- dustry proviso to Section 8(e). Having determined that the subcontracting clause herein is secondary but nonetheless privileged by the proviso to Section 8(e), we now turn to the General Counsel's, Respondent AGC's, and ABD's conten- tions that the subcontracting clause is not privileged because it allows for the enforcement of the clause by other than judicial means. Although Congress, by its enactment of the proviso to Section 8(e), made lawful certain secondary claus- es in the construction industry, it nevertheless made clear that such agreements could not be enforced by the threats, restraint, or coercion prohibited by Sec- tion 8(b)(4).7 This reflected the sense of Congress that, although such agreements could be lawful, the existing law with respect to the nonjudicial enforce- ment of secondary clauses should not be altered. Thus, in the conference report accompanying the 1959 amendments, the committee set forth that "[t]he proviso [to Section 8(e)] applies only to section 8(e) and therefore leaves unaffected the law developed under section 8(b)(4)." 8 When viewed in the context of the 1959 amend- ments generally, it thus appears that, in limiting the enforcement of valid "hot cargo" agreements in the construction industry to judicial means only. Con- gress did not intend that the proviso to Section 8(e) could be utilized or interpreted so as to allow the inclusion in collective-bargaining agreement provi- sions which would have the forseeable effect of au- thorizing 8(b)(4) violations.9 7Sec. 8(bX4XiiXB) provides in pertinent part: lb) It shall be an unfair labor practice for a lahor organlation or its agents- (4) . .. (ii) to threaten. coerce, or restrain an, person engaged in commerce or an industry affecting commerce. where in either case an object thereof is: (B) forcing or requiring any person to cease . doing business with any other person . .. I. Leg. Hist. 943 (LMRDA. 1959). Then-Senator Kennedy explained in a discussion of Sec. 8(e) that: Agreements by which a contractor in the construction industr) promising not to subcontract work on a construction site to a nonunion contractor appear to be legal today. They will not be unlawful under section 8(e).... Since the proviso does not relate to section 8(b)(4). strikes and picketing to enforce the contracts excepted by the proviso will continue to be illegal under section 8(b4). ... It is not intended to change the law with respect to the judical en- forcement of these contracts .... [ll Leg. Hist 1433(1 MRDA. 1959). This Board, in a long line of decisions.'0 has con- sistently adhered to the views expressed by Congress with respect to the prohibition on economic action to enforce secondary agreements under the construc- tion industry proviso. The Board (with court ap- proval) has thus held that clauses which purport to authorize a union to employ economic action to en- force secondary subcontracting provisions will serve to remove whatever protections the secondary clause would otherwise enjoy under the proviso to Section 8(e). ' The main focus of our analysis of self-help clauses and their legality has been to determine the relation- ship between the clause purporting to authorize eco- nomic action and any secondary clauses limiting the subcontracting of work. In other words, subcontract- ing clauses and clauses authorizing the union to en- gage in economic action independent of one another, i.e., when a union's right to engage in economic ac- tion specifically excludes a subcontracting clause from its application, do not violate Section 8(e). It is only when the Board determines that the parties in- tended that the economic enforcement provisions ap- ply to the subcontracting clauses that violations of Section 8(e) will be found. 2 The Board has found that "self-help" clauses remove otherwise proviso- protected agreements from the scope of that proviso even though the self-help and subcontracting provi- sions are found in different articles of the agree- ment,.3 even if the remedy the union seeks would be the same if achieved by lawful judicial means,'4 and although the means of enforcement reserved by the union were not strictly limited to strikes or picket- ing. 5 In the instant case, while the limitations on sub- contracting are technically linked to the contract's grievance-arbitration machinery, article IX nonethe- less reserves to the Union the right to take "whatever action it deems necessary" for enforcement at any In Alusts egon BrilAlaers t nion Z5, Bricklayers, WMasons and Plasterers In- ternationtrl (nion cf .4merica (.4Fl. (IO0), (Greater Muskegon General (Con- rraiit·ors .4in J 152 NLRB 360 ( 1965): Ers-Hokin Corporation. 154 Nl.RB 839 (1965); Dimreo Construtrion (Co. supra, General Teamsters. Chauffeurs. l areh,,lluentn and Helpers. l.'al 982. Internatronal Brotherhood iif Team- tierv, (C'hauifurs. u4ariehouienmen and Helpers of America (J K Barker Iruking (Co.). 181 NL.RB 515 {1970); fresno. Madera, Aings and 7ulare ('unflit.s Building and C(onrtructlon Trades Council tGage Brothers Co ,nstrue fnonl. 218 NLRB 39 1975). International Union of Operating Engineers. L~o- a/l ,' 12. AFL CIO (Robert E Fulton), 220 NLRB 530 (1975). c See Muskegon Bricklavyers Union t5. supra. enfd. 378 F.2d 859 (6th Clr 1967); Etl-Hokin Corp., enfd. sub nom N L.R B v. International Brotherhood of Electrical Workers. A FL- CIO and its Local Union No 769. 405 F.2d 159 (9th Cir. 1968). 2 General Teamsters. Chaufjfurs. Warehousemen and Helpers, Local 982, supr a 13International Union of Operating Engineers, Local U nion No 12 (Robert E Fulton), supra. Muskegon Bricklayers Lnion #5, supra. Fresno. .Uadera. Kings and Tulare Counties Trades Council, supra 277 DECISIONS OF NATIONAL LABOR RELATIONS BOARD step of the grievance procedure or for a violation of the applicable time limits for fringe benefit contribu- tions. Furthermore, while article X, section 1, gener- ally provides for no strikes, it is limited by the lan- guage "unless otherwise provided herein." Article IX, in turn, allows for whatever action deemed necessary for enforcement with the understanding that such ac- tion shall "not be considered in violation of any part of this agreement." (Emphasis supplied.) Taken together, articles IX and X compel the con- clusion that strikes or other economic action which would otherwise be prohibited under article X are allowed under article IX as an "action deemed neces- sary" by the parties to enforce the grievance-arbitra- tion procedure. Further, it is clear that a dispute aris- ing under the article VIII restrictions on subcontracting would be submitted to the grievance- arbitration procedures for settlement. If one party subsequently failed to comply with the settlement, the other party, under article IX, is accorded the right to take "any action deemed necessary" to en- force the settlement. As noted above, Respondent Engineers contends that any economic action that the Union may choose to employ is not strictly to enforce the subcontract- ing provision in article VIIIl, but is instead action taken to enforce the findings and/or time limits grounded in the grievance-arbitration provision. En- gineers in effect argues that a violation of Section 8(e) is avoided here because the Union has not re- served the use of economic force with respect to the subcontracting clause per se, but has reserved the right to take self-help as it relates to the grievance- arbitration provision. The grievance-arbitration procedure, however, is simply an agreed-upon method for the resolution of disputes arising under specific provisions of the con- tract between the parties. As such, it is necessarily connected to the contract provisions which are the source of the disputes submitted for resolution. We therefore hold that the immediate object of a self- help clause (here, the grievance procedure) will not serve to obscure the underlying dispute which gives rise to a claim of liability (in this case, the enforce- ment of a secondary clause). The effect of holding to the contrary would be to insulate self-help clauses (as applied to secondary provisions) through the device of the grievance procedure. Read together, articles VIII, IX, and X sanction economic action to insure compliance with the subcontracting provisions of ar- ticle VIII. This result serves to remove article VIII from the protection it would otherwise enjoy under the proviso to Section 8(e). Recalling that in its en- actment of the proviso to Section 8(e) Congress in- tended that agreements privileged by that proviso be enforced only through lawsuits, it is clear that if the underlying claim giving rise to liability under article IX, section 5, is rooted in a secondary clause the fact that there is an intermediate stage before the Union may resort to economic action does not alter the fact that the contract allows the Union to employ "non- judicial acts of a compelling or restraining nature, applied by way of concerted self help" 6 for the en- forcement of a secondary provision. Accordingly, we find that article VIIIl of the 1975-80 AGC-Engineers agreement is violative of Section 8(e) of the Act.'7 THE REMEDY Having found that Respondents have engaged in unfair labor practices, we shall order them to cease and desist therefrom and to take certain affirmative action to effectuate the purposes of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, we make the following: CONCLUSIONS OF LAW I. The Oregon-Columbia Chapter, The Associated General Contractors of America, Inc., is an associa- tion of employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local No. 701, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By entering into, maintaining, and giving effect to self-help provisions applicable to article VIII of their 1975-80 collective-bargaining agreement, Ore- gon-Columbia Chapter, The Associated General Contractors of America, Inc., and International Union of Operating Engineers, Local No. 701, AFL- CIO, violated Section 8(e) of the Act. 4. The above unfair labor practice is an unfair la- bor practice affecting commerce and the free flow of commerce within the meaning of Section 2(6) and (7) of the Act. 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 Oregon-Columbia Chapter, The lb Local Union No. 48, Sheet Metal Workers International Assn. v. Hardy, 332 F.2d 682 (5th Cir. 1964). Member Murphy emphasizes that all five Board Members, including her dissenting colleague, agree that the actual use of economic action to enforce a clause protected by the construction industry proviso under Sec. 8(e) violates the Act. 278 OPERATING ENGINEERS. LOCAL NO. 701 Associated General Contractors of America, Inc.. Portland, Oregon, its officers, agents. successors, and assigns, shall: 1. Cease and desist from entering into, maintain- ing, giving effect to, or enforcing the self-help portion of article IX, section 5, insofar as it is applied to the subcontracting clause, article VIIl, found in Respon- dents' collective-bargaining agreement, to the extent found unlawful herein. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its business offices and mail to its em- ployer-members copies of the attached notice marked "Appendix A." 18 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by an authorized repre- sentative of Respondent AGC, shall be posted and mailed immediately upon receipt thereof, and those posted shall be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members and employees are cus- tomarily posted. Reasonable steps shall be taken by Respondent AGC to insure that said notices are not altered, defaced, or covered by other material. (b) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent AGC has taken to comply herewith. B. Respondent International Union of Operating Engineers, Local No. 701, AFL CIO, Portland, Ore- gon, its officers, agents, and representatives, shall: 1. Cease and desist from entering into, maintain- ing, giving effect to, or enforcing the self-help portion of article IX, section 5, insofar as it is applied to the subcontracting clause, article VIIIll, found in Respon- dents' collective-bargaining agreement, to the extent found unlawful herein. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its business offices and meeting halls copies of the attached notice Marked "Appendix B." 19 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by an authorized representative of Respon- dent Engineers, shall be posted immediately upon re- ceipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respon- dent Engineers to insure that said notices are not al- tered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent Engineers has taken to com- ply herewith. CHAIRMAN FANNING. dissenting: I agree with the finding that the Supreme Court decision in Connell construed the construction indus- try proviso to permit subcontracting clauses in the context of a collective-bargaining relationship as in this case. However, for reasons stated in mv dissent- ing opinion in Musklegon Bricklavers Union #5, Bricklavemrs, Ma .son.s andt Pl.asterers International Union f A.4,meric (,4FL CIO) (Greater Mluskegon General (Contractors A.ssociation). 152 N LRB 360 (1965), I dissent from the finding that the subcon- tracting clauses are outside the protection of the pro- viso because of self-enforcement provisions. Accord- ingly. I would dismiss the complaint. In the event tht thth, Order is enforced hb a judgment of a U nited Stiles ( ourN of Appeals. the words in the notice reading "Posted bh Order of the N;tional i abor Relations Board" shall read "Posted Pursuant to a Judgment of the IUnited States Court of* Appeals Enforcing an Order of the Natllona l .Labor Relations Board #See In 18. tulr APPENDIX A NOTI(E F To EMPI.OY EFS AND MENIMBtRS PosrIED BY ORDER OF rHll NTIONAI. LABOR RELAlIONS BOARD An Agency of the United States Government WE. wil.i NOI enter into, maintain, give effect to, or enforce that portion of article IX, section 5, permitting "such action as [deemed] neces- sary," to the extent that such action is author- ized to maintain, to give effect to, or enforce the subcontracting clause, article VIIIl, of the collec- tive-bargaining agreement between Oregon-Co- lumbia Chapter. The Associated General Con- tractors of America. Inc., and International Union of Operating Engineers, Local No. 701, AFL-CIO, and to the extent that article IX, sec- tion 5, violates Section 8(e) of the National La- bor Relations Act. OREGON-COI.LUMBIA CHAPTER, ASSO(IAIED GENERAL CONTRA(CTORS OF AMERICA. IN(,. APPENDIX B NOTICE To EN1PI OYFFS AND MEMBFRS POSTED BY ORDER OF THt NATIONAL LABOR REl.ATIONS BOARD An Agency of the United States Government WE WILL. NOT enter into, maintain, give effect to, or enforce that portion of article IX, section 5, permitting "such action as [deemed] neces- sary," to the extent that such action is author- 279 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ized to maintain, to give effect to, or enforce the subcontracting clause, article VIII, of the collec- tive-bargaining agreement between Oregon-Co- lumbia Chapter. The Associated General Con- tractors of America, Inc.. and International Union of Operating Engineers, Local No. 701, AFL-CIO, and to the extent that article IX, sec- tion 5, violates Section 8(e) of the National La- bor Relations Act. INTI ERNA I IONAL UNION 01 OPERAI ING ENGjNEERS. LOCAL No. 701, AFL CIO 280