Local 1149, Carpenters

National Labor Relations Board - Board Decisions

Nov 7, 1975

221 N.L.R.B. 456 (N.L.R.B. 1975)

456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 1149 , United Brotherhood of Carpenters and
Joiners of America , AFL-CIO and American
President Lines, Ltd. Case 20-CE-114
November 7, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On August 7, 1975, Administrative Law Judge
Henry S . Salim issued the attached Decision in this
proceeding . Thereafter , Respondent filed exceptions
and a supporting brief, and the Charging Party and
the General Counsel filed briefs in support of the
Administrative Law Judge 's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor ' Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached , Decision in light of the exceptions and
briefs and has decided to affirm the rulings,'
findings , and conclusions 2 of the Administrative
Law Judge and to adopt his recommended Order, as
herein modified.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below , and hereby orders that the Respon-
dent, Local 1149 , United Brotherhood of Carpenters
and Joiners of America , AFL-CIO, San Francisco,
California, its officers , agents, and representatives,
shall take the action set forth in the said recommend-
ed Order, as so modified:
Delete paragraph 1(c).
1 In his Decision, the Administrative Law Judge, apparently by
inadvertence, referred to one of the parties involved in a related
jurisdictional dispute proceeding as "Local 10 of the Painters Union." In
Cases 20-CD-435 et al, the proceeding to which the Administrative Law
Judge alluded, the correct name of that party appears as Ship Painters Local
961, Brotherhood of Painters and Allied Trades , AFL-CIO.
2 We agree with the Administrative Law Judge 's conclusion that the
allegations of the complaint are not barred by Sec 10(b) of the Act In so
doing, however, we adopt his rationale only insofar as he relied upon
Respondent's attempted enforcement of the unlawful contractual clause
through its demand for arbitration made upon the Employer on January 15,
1975. This demand for arbitration, which occurred within the 6-month
period immediately preceding the filing of the instant charge, clearly
constitutes a reaffirmation of the unlawful contractual clause and , therefore,
is violative of Sec. 8 (e). See, e.g., International Organization of Masters,
Mates, and Pilots, AFL-CIO (Seatrain Lines, Inc), 220 NLRB No 52
(1975), Dan McKinney Co., 137 NLRB 649, 654 (1962). Furthermore, in
finding that the complaint is not barred by Sec . 10(b), we also rely on the
fact that Respondent , in its answer and amended answer to the complaint,
admitted that at all material times herein it has continued "to maintain,
affirm, and give effect to" the unlawful contractual clause, and additionally
221 NLRB No. 82
note that subsequently, on April 2, 1975, Respondent again made a demand
upon the Employer for arbitration of this clause
3 We specifically do not adopt that portion- of the Administrative Law
Judge's recommended Order requiring Respondent to cease and desist from
threatening, restraining, or coercing the Employer, or any other employer
engaged in commerce, with whom Respondent -does not have a labor
dispute, where an object thereof is to force or require such employers to
cease doing business with any other,person Such a remedial provision is
clearly unwarranted where, as here, there is no allegation that Respondent
has engaged in conduct violative of Sec. 8(b)(4) of the Act. Accordingly, we
shall modify the Administrative Law Judge's recommended Order by
deleting this provision
DECISION
STATEMENT OF THE CASE 1
HENRY S. SAHM, Administrative Law Judge: -This
proceeding heard on April 15, 1975, was initiated on an
original charge filed on February 12, 1975 by the American
President Lines, Ltd., the Charging Party, hereinafter
referred to as "APL." A complaint issued on March 13,
1975, which alleged, inter alia, that Respondent Union
violated Section 8(e) of the National Labor Relations 'Act,
when it entered into a collective-bargaining agreement with
APL in 1974, whereby APL agreed to cease or refrain
doing business with any subcontractor who is not a
signatory to an agreement with Local 1149 of the
'Carpenters, the Respondent Union. The allegedly'illegal
contractual provision, effective from July 1, 1974, to June
30, 1977, reads as follows:
It is further agreed and understood that should the
company desire to contract out any portion of the work
covered by this agreement to other companies or
contractors, the company shall give the Union at least
sixty (60) days prior notice of any change, and shall
only let such work to companies or contractors who are
signatory to an agreement with Local Union # 1149 of
the United Brotherhood of Carpenters and Joiners of
America. This provision shall pertain to all work
covered by the agreement, but not to containers which
have been damaged beyond the repair of the terminal
facilities or parts on A.P.L. premises.2
Upon the entire record, including observation of the
witnesses , and after consideration of the briefs filed on
May 20, 1975, by General Counsel, the Respondent Union,
and the Charging Party, there are hereby made the
following:
FINDINGS of FACT
I. JURISDICTION
American President Lines, the Charging Party, is a
Delaware corporation, with a facility located at the Port of
Oakland, California, and is engaged in shipping from ports
in the United States to other United States and foreign
ports. During the past year, APL had revenues in excess of
$500,000 and shipped goods valued in excess of $50,000
directly to states outside the State of California. It is
1 The transcript is hereby corrected in accordance with the parties
stipulation of May 7, 1975.
2 G.C. Exh. 2.
LOCAL 1149, CARPENTERS 457
stipulated and found that APL is an employer which is
engaged in commerce and in a business affecting com-
merce within the meaning of Section 2(6) and (7) of the Act
and also is a person within the meaning of Section 8(e) of
the Act and subject to the jurisdiction of the National
Labor Relations Board.
H. THE LABOR ORGANIZATION INVOLVED
Respondent, Local 1149 of the Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. BACKGROUND
At the time the current collective-bargaining agreement
was executed, APL was operating at Pier 80 in San
Francisco. On or about August 31, 1974, APL announced
its decision to move its facilities to the Middle Harbor
terminal at Oakland, California, from which port it
operated on and after January 1, 1975. Shortly after APL's
move to its new facility in Oakland, competing claims for
the repair and maintenance work of its cargo containers
were made by the Respondent Union, International
Longshoremen's and Warehousemen's Union and the
Painters' Union.
Most of APL's ships are "containerized" which means
that such ships carry cargo enclosed in large containers
measuring 8 feet by 8 feet by 20 feet that provide
protection for cargo in shipping. These containers, which
APL purchases from manufacturers, are sometimes dam-
aged in shipment or require repairs due to continued use.
When APL was located in San Francisco, members of the
Respondent's Carpenter's Union performed the repairs
and maintenance work on damaged containers under its
collective-bargaining agreement with APL. However, when
APL moved to the Port of Oakland, it entered into a
contract in January 1975, for this container repair and
maintenance work at its Oakland Middle Harbor terminal
to be performed -by Seatrain Lines which employed
members of Local 10 of the International Longshoremen's
and Warehousemen's Union, hereinafter called "ILWU."
When this occurred, Respondent Union and Local 10 of
the Painters' Union claimed they were entitled to perform
this container repair and'maintenancework. The Regional
Director of the Board having reasonable cause to believe
that this dispute as to who should perform this work might
entail a violation of Section 8(b)(4)(D), set the matter for
hearing under Section 10(k) of the Act to resolve the
jurisdictional dispute as' to which' of the three claimant
unions should be awarded the disputed container work.
That hearing was in progress at the same time as the trial of
the case at bar.
Respondent Carpenters Union on January 15, 1975, sent
a letter to APL protesting its action in contracting with
Seatrain for the container repair work previously per-
formed by its members . The letter also demanded
arbitration 'as provided for underparagraphs 1 and 2(d) of
the parties' collective-bargaining agreement. On January
16, 1975, Respondent Union filed a complaint with the
Federal District Court for Northern California in which it
sought an injunction to maintain the status quo by
requiring that APL assign the disputed repair work to
Respondent Local 1149 of the Carpenters' Union until
such time as the matter was resolved through the
contractual arbitration provision embodied in their collec-
tive-bargaining agreement. The Federal court litigation
was subsequently dismissed by agreement of all the parties.
Later on April 2, 1975, Respondent Union again demand-
ed by letter that APL agree to arbitrate the disputed work
question which APL had already contracted to Seatram
Lines.
In the meantime, APL had filed a charge on February
12, 1975. The charge alleged that APL had executed a
collective-bargaining agreement with Respondent on July
1, 1974. The agreement contained a provision which APL
alleged would force it to cease or refrain from doing
business with any company or contractor to which it might
contract out any work covered by the agreement if that
company or contractor was not a signatory to an
agreement with the Respondent Union. APL further
alleged that the Respondent Union had been attempting to
enforce such provision since January 17, 1975, against
APL's contract with Seatrain Lines. A complaint issued on
March 13, 1975, alleging Respondent had violated Section
8(e) of the Act.
The current contract to- which APL and Respondent
Union are parties, provides, inter alia, as follows:
1. Scope of Agreement.
This Agreement shall govern the wages and working
conditions of all carpenters employed by American
President Lines, Ltd., and shall cover all work
performed by carpenters in the employ of American
President Lines, Ltd., on waterfront operations in the
San Francisco Bay Area. It shall include the construc-
tion and repair of cargo vans and/or containers on
company owned or leased terminals, the securing of
cargo, shoring, blocking, tomming and similar work
done on vessels or carriers. It shall include the making
up of loads of lumber to be used in such work, the
construction and repair of pallet boards, warehouse
boards, animal crates and similar items used in the
handling of cargo. It is understood by both parties to
this agreement the work detailed herein does not in any
way change traditional jurisdictions which have be-
come established in and about the San Francisco Bay
Area and will be recognized and adhered to by the
parties. It is further agreed and understood that should
the company desire to contract out any portion of the
work covered by this agreement to other companies or
contractors, the company shall give the Union at least
sixty (60) days prior notice of any change and shall
only let such work to companies or contractors who are
signatory to an agreement with Local Union # 1149 of
the United Brotherhood of Carpenters and Joiners of
America. This provision shall pertain to all work
covered by this agreement, but not to containers which
have been damaged beyond the repair of the terminal
facilities or parts on A.P.L. premises.
Section 8(e) of the Act provides in pertinent part as
follows:
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) It shall be an unfair labor practice for any labor
organization and any employer to enter into any
contract or agreement, express or implied, whereby
such employer ceases or refrains or agrees to cease or
refrain from handling, using, selling, transporting or
otherwise dealing in any of the products of any other
employer, or to cease doing business with any other
person, and any contract or agreement entered into
heretofore or hereafter containing such an agreement
shall be to such extent unenforceable and void:
Provided, That nothing in this subsection (e) shall apply
to an agreement between a labor organization and an
employer in the construction industry relating to the
contracting or subcontracting of work to be done at the
site of the construction, alteration, painting, or repair of
a building, structure, or other work... .
The facts are virtually undisputed. It is the legal
conclusions which emanate from those facts, however,
which are in dispute. The Respondent argues that the
contract provision, supra, which restricts all subcontracting
by APL "to companies or contractors who are signatory to
an agreement with Local No. 1149 of the United
Brotherhood of Carpenters and Joiners of America," is not
illegal . Respondent asserts that not only is that clause legal
"under general principles applicable to §8(e) (29 U.S.C.
§ 158(e)), but said clause also is given specific protection by
the construction industry proviso of that section," supra.
Moreover, contends Respondent, this clause is a work-
preservation provision which is legal as the "Board has
approved any contractual relationship designed to benefit
and protect the job opportunities of the employees covered
by the contract." Furthermore, claims Respondent's
counsel , Section 8(e) is not applicable in the case at bar as
here there was no "product boycott" involved. Also, argues
counsel for Respondent, the Union is absolved of any
wrongdoing as "this is a construction site agreement,"
falling under the exemption contained within the proviso
to Section 8(e) relating to "the site of the construction,
alteration, painting, or repair of a building, structure, or
other work. . . ." Additionally, pleads Respondent's
counsel in his amended answer , "This is a construction
industry contract, and §8(e) constitutes a denial of equal
protection of the law." Finally, states Respondent, this
action is barred by the statute of limitations.
The General Counsel's representative, on the other hand,
denies the validity of all the Respondent's arguments. She
states that an agreement by which the employer agrees to
subcontract in the future only to union signatories is
proscribed by Section 8(e). The contractual provision in
issue here whereby APL limits its right to subcontract only
with contractors who are signatory to a contract with
Respondent Union, argues the General Counsel, is not a
valid work-preservation clause . Moreover, she contends
that the construction industry proviso to §8(e) does not
apply here as APL's ,business is transporting cargo by
ships.
Discussion and Conclusions
Prior to the 1959 amendments of the Act, an employer
could lawfully agree with a union not to do business with
"any other person." 3 This was called a "hot cargo"
contract under which the employer agrees ahead of time to
quit doing business with other employers who are non-
union or who have a labor dispute. The U.S. Supreme Court
in its 1958 Sand Door decision4 held that hot cargo
contracts were not invalid in themselves, but that unions
could not attempt to enforce the clauses by conduct
otherwise within the secondary boycott prohibition of the
Act. Thus, at the time Congress considered the 1959
amendments, the situation was that the execution of a hot
cargo contract was lawful and an employer could voluntar-
ily comply with such a contract but the contract could not
operate as a defense to inducement of employees to strike
or to refuse to handle goods even though the union claimed
it was only attempting to enforce the contract. Section 8(e)
now makes it an unfair labor practice for an employer and
a union merely to enter into such an agreement and
renders such agreements "unenforcible and void."
As stated in Ohio Valley Carpenters District Council
(Cardinal Industries), 136 NLRB 977, 985-986:
... Section 8(e) was basically designed to close what
its proponents considered a loophole in the secondary
boycott provisions of the Taft-Hartley Act ... .
[S ]ection 8(e) was intended to outlaw what is in effect a
"secondary boycott in futuro," that is, "an agreement
by an employer to permit a secondary boycott to be
conducted against him." II Leg. Hist. 1859 (1959)
[T]he delineation and exclusive assignment to
employees in a contract unit of specified work tasks
cannot itself be regarded as unlawful; indeed, particu-
larly where a craft is involved, it is necessary if the
contract is to be meaningful . . . . [I]t has long been
recognized that restrictions on subcontracting work out
to another employer, or on otherwise having done
elsewhere work usually performed by employees in a
bargaining unit, is a mandatory subject of collective
bargaining and a proper matter for contract inclusion
Contractual restrictions of this character un-
doubtedly impinge upon an employer's freedom to
engage in business with others. But where they do no
more than define and reserve [work] for the exclusive
performance of employees in a bargaining unit .. .
they have a different function from the contracts that
were the targets of 8(e). Restrictions designed to
confine work to unit employees are immediately related
to terms and conditions of employment within the unit.
They anticipate no work to be performed by persons
other than employees of the immediate employer. Their
sole, direct, and primary aim is to protect and preserve
work and therefore jobs for employees within the
bargaining unit . In these respects limited restrictions of
3 Amalgamated Union, Local 5, UA W, Independent (Dynamic Manufactur- 4 Local 1976, United Brotherhood of Carpenters and Joiners of America
ing Corporation), 131 NLRB 292 (1961) See also Conway's Express, enfd.
195 F.2d 906 (C A 2); Chauffeurs Union, 105 NLRB 740 (1953); Genuine'
Parts Co., 119 NLRB 399 (1957), McAllister Transfer, 110 NLRB 1769
(1954).
.357 U S. 93, enfg 113 NLRB 1210 (1955), affg. 241 F.2d 147 (C.A 9, 1957).
LOCAL 1149, CARPENTERS 459
that character are quite different in purpose and intent
from the "hot goods" clause 8(e) was designed to ban-
that is, the blacklisting of specified employers or classes
of employers because their products or labor policies
are objectionable to the union.
As the Supreme Court explained in National Woodwork
Manufacturers Association v. N.L.R.B., 386 U.S. 612, 637-
639 (1967), the intention of Congress was not to prohibit all
union-employer agreements which may have the incidental
effect of a cessation of business with another employer.
Rather, Congress envisioned that' Section 8(e) would
embody the same distinction between lawful "primary"
and unlawful "secondary" boycott activity contained in
Section 8(b)(4). "The touchstone is whether the agreement
or its maintenance is addressed to the labor relations of the
contracting employer vis-a-vis his own employees." Nation-
al Woodwork, supra, 386 U.S. at 645. An agreement so
limited is "primary" and permissible, whereas an agree-
ment "tactically calculated to satisfy union objectives
elsewhere" is "secondary" and impermissible. A common
example of a secondary-objective agreement is a "union
signatory clause" - i.e., an agreement permitting the
subcontracting of unit work only to employers who are
under contract with the union as is the situation in the case
at bar. Such a clause violates Section 8(e) because its
principal thrust is to further union interests generally and
not to promote the welfare of employees in the bargaining
unit .5 Thus, in every case in which contract clauses are
attacked, examination must be made to determine if each
clause is a lawful "primary" clause intended for the direct
benefit of the employees in the immediate bargaining unit,
or a "secondary" clause "tactically calculated to satisfy
union objectives elsewhere."6 Thus, where an object of a
clause is to aid union members generally rather than
members of the unit, the object is secondary and unlawful.?
The construction industry onsite proviso to Section 8(e)
reads as follows:
Provided, That nothing in this subsection (e) shall apply
to an agreement between a labor organization and an
employer in the construction industry relating to the
contracting or subcontracting of work to be done at the
site of the construction, alteration, painting, or repair of
a building, structure, or other work... .
The phrase "at the site" has been construed strictly
according to its literal terms. According to Senator
Kennedy who headed the Senate conferees on Section 8(e),
the construction industry proviso relates only to agree-
ments covering work to be done at the site of the
construction. It does not cover "boycotts of goods
manufactured in an industrial plant for installation on the
jobsite or suppliers who do not work at-the jobsite." (II
Leg. Hist. 1431, 1959.) Nor does the proviso exempt from
Section 8(e) agreements relating to supplies or other
products or materials shipped or otherwise transported to
and delivered on the site of the construction.8
The Board in various cases has had occasion to interpret
Section 8(e) and the construction site proviso. In Local 294,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America (Rexford Sand and Gravel
Co.), 195 NLRB 378 (1972), a sandhaulers dumping of
sand at a construction site in, accordance with the
directions of the prime contractor's employees, was found
to be outside of the onsite construction proviso because it
was merely a delivery of materials and not work at the site
of construction. Likewise, in Hoffman & Sons v. Teamsters,
Joint Council 65, 352 F. Supp. 677, where a demand that a
construction employer cease doing business with nonunion
employees of suppliers, a Federal District Court held, is
not protected by the on- site proviso as the demand related
to both on-site drivers and drivers who only transported
materials to the construction site.
In Los Angeles Building & Construction Trades Council
(Portofino Marina), 150 NLRB 1590, 1592 (1965), the
Board held that the construction proviso to Section 8(e)
applies only to "an agreement between a labor organiza-
tion and an employer in the construction industry relating
to the contracting or subcontracting of work to be done at
the site of construction." In the Portofino case, one of the
contractual provisions held to be in violation of Section
8(e) read as follows:
SUBCONTRACTING. If the Contractor shall
subcontract work as defined herein, provision shall be
made in such subcontract that said subcontractor and
his subcontractors be signatory to this Agreement and
shall abide by all the terms of this Agreement,
including all provisions for fringe benefits contained in
this Agreement. The Contractor hereby agrees to be
held liable for compliance by his subcontractors with
all the terms of this Agreement including all fringe
benefits, If the Contractor party hereto shall subcon-
tract work as defined herein, provisions shall be made
in such subcontract for the employment of workmen
furnished by an AFL-CIO Building and Construction
Trades Union and/or the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America.
This clause , held the Board, went beyond the permissible
limits of the construction industry proviso and falls within
the proscription of Section 8(e), in that the provision
quoted above requires that all subcontractors abide by all
the terms of the union's agreement, including those which
are unlawful
In Connell Construction Co. v. Plumbers Local 100, 89
LRRM 2401, decided June 2, 1975, the Supreme Court
discussed Section 8(e) and the construction industry
proviso. The case involved, inter alia, a union's contract
obligating a general contractor to subcontract' mechanical
work only to firms that have a current labor agreement
5 Id. at 644-645, Houston Insulation Contractors Association v. N.L R.B.,
386 U.S 664, 668 (1967); District No. 9, International Association of
Machinists v N LR B, 315 F.2d 33,36 (C.A.D.C., 1962); N L R B v. Joint
Council of Teamsters No 42 [J. K. Barker Trucking Co ] 338 F 2d 23, 28
(C.A. 9, 1964)
6 National Woodwork, supra, 386 U.S at 645.
7 Meat and Highway Drivers, Dockmen, Helpers and Miscellaneous Truck
Terminal Employees, Local 710 v. N.L.R B., 335 F.2d 709, 716 (C.A D.C,
1964).
8 H Conf. Rept, 1147, 86th Cong., p. 39, reprinted in I Leg Hist. 943
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the union. This may violate Federal antitrust laws, the
Supreme Court held in a 5-to-4 decision, limiting both the
exemption of labor organizations under those laws and the
scope of the construction-industry proviso to the Act's ban
on hot cargo contracts. The Court stated:
§8(e) must be interpreted in light of the statutory
setting and the circumstances surrounding its enact-
ment:
"It is a `familiar rule, that a thing may be within the
letter of the statute and yet not within the statute,
because not within its spirit, nor within the intention of
its makers: Holy Trinity Church v. United States, 143
U.S. 457, 459." National Woodwork Manufacturers Assn.
v. N.LRB., 386 U.S. 612, 619.
Section 8(e) was part of a legislative program
designed to, plug technical loopholes in §8(b)(4)'s
general prohibition of secondary activities. In §8(e)
Congress broadly proscribed using contractual agree-
ments to achieve the economic coercion prohibited by,
§8(b)(4). See National Woodwork Manufacturers Assn.,
supra at 634. The provisos exempting the construction
and garment industries were added by the Conference
Committee in an apparent compromise between the
House Bill, which prohibited all hot-cargo agreements,
and the Senate Bill, which prohibited them only in the
trucking industry. Although the garment industry
proviso was supported by detailed explanations in both
Houses, the construction industry proviso was ex-
plained only by rare references to "the pattern of
collective bargaining" in the industry. It seems,
however, to have been adopted as a partial substitute
for an attempt to overrule this Court's decision in
N.L.R.B. v. Denver Building & Construction Trades
Council, 341 U.S. 675. Discussion of "special problems"
in the construction industry, applicable to both the
§8(e) proviso and the attempt to overrule Denver
Building Trades, focused on the problems of picketing
a single nonunion subcontractor on a multiemployer
building project, and the close relationship between
contractors and subcontractors at the jobsite. 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 afford construction unions an
exemption from §8(b)(4)(B)' or otherwise indicate that
they were free to use subcontracting agreements as a
broad organizational weapon. In keeping with these
limitations , the Court has interpreted the construction
industry proviso as
"a measure designed to allow agreements pertaining
to certain secondary activities on the construction site
because of the close community of interests there, but
to ban secondary-objective agreements concerning
nonjobsite work, in which respect the construction
industry is no different from any other." National
Woodwork Manufacturers Assn., supra at 638-639
(footnote omitted).
Other courts have suggested that it serves an even
narrower function:
"[T]he purpose of the section 8(e) proviso was to,
alleviate the frictions that may arise when union men
work continuously alongside nonunion men on the
same construction site." Drivers Local 695 v. N.L.R.B.
U.S. App. D.C. , 361 F.2d 547, 553.
The interpretation of language in each clause if it is to be
construed as a violation of Section 8(e) must be so clear as
to preclude ambiguity with respect to its meaning. The
Board in a long line of decisions has evolved rules of
construction for the disposition of such clauses. If the
meaning is clear the Board will determine its validity under
Section 8 (e). Cement Masons Local Union No. 97 (Interstate
Employers, Inc.), 149 NLRB 1127, 1131-32 (1964); Los
Angeles Building & Construction Trades Council (Portofino
Marina), 150 NLRB 1590, 1591, 1592-93 (1964). If the
clause is not clearly unlawful on its face, it will be
interpreted to require no more than what is allowed by law.
Ets-Hokin Corporation, 154 NLRB 839, 841 (1965). If the
clause is ambiguous the Board will not presume illegality
but will consider extrinsic evidence to determine whether
the clause was intended to be administered in a lawful or
unlawful manner. If there is an absence of such evidence,
the Board will refuse to pass on the validity of the clause.
It is plain that the union signatory clause of the
collective-bargaining agreement cited above is a clear
violation of Section 8(e) of the Act in the context of the
circumstances here present when the Respondent Local
1149 of the Carpenters has sought and is seeking to give
effect to that illegal contracting out provision. The mere
entering into , maintaining , and giving effect to a union-
signatory agreement and in this proceeding, the Respon-
dent's attempt to enforce this proscribed provision,
constitutes a violation of Section 8(e) of the Act, which
makes it an , unfair labor practice for the Respondent
Union and the employer to agree to cease doing business
with any other person.9 Here the contractual provision
itself requires APL to boycott nonsignatory employers,
which constitutes unlawful secondary activity in violation
of Section 8(e) of, the Act, which prohibits "hot cargo"
agreements.1° This illegal provision is not simply designed
to protect economic standards and job opportunities in the
unit represented by the Respondent Union, but is a
patently devious device which effectively precludes APL,
the signatory employer, from doing business with nonsig-
natories to the Respondent's various collective-bargaining
agreements. ' Such an agreement is clearly secondary and
within the proscriptive provisions of Section 8(e) of the
Act.
Moreover, the construction industry onsite proviso is
patently inapposite in the context of the facts here present,
as APL is neither an employer in the construction industry
nor does the agreement relate "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." It is uncontradicted that APL
operates ships that carry cargo and constructs neither its
ships nor the containers which are purchased from
manufacturers.ii The construction industry onsite proviso
9 District No 9, International Association of Machinists, AFL-CIO, 134
NLRB 1354 (1961), enfd. 315 F 2d 33 (C.A.D C , 1962).
10 National Woodwork Manufacturers Association, 386 U.S 612 at 633-
634 (1967).
11 Columbus Building and Construction Trades Council (Kroger Co), 149
LOCAL 1149, CARPENTERS 461
is inapplicable here as it is neither traditional nor
customary construction work as the repair of containers
can either be done on or off the employer's premises.12 In
the case of cement deliverymen whose closer link to the
general contractor's employees and the construction jobsite
is an a fortiori situation than carpenters repairing contain-
ers, has been held by the Board not exempt by the
construction industry proviso.13 See Acco Construction
Equipment, Inc. v. N.L.RB., 511 F.2d 848 (C.A. 9, 1975).
With regard to Respondent's contention that the §8(e)
,construction industry is unconstitutional, the courts have
uniformly upheld the constitutionality of Section 8(e). The
Lithographers Union in a series of cases, attacked the
constitutionality of the provisions on the ground that its
industry, like the garment industry, has integrated pro-
duction processes and that to grant an exemption to the
garment industry and not to the lithographic industry
constituted a violation of due process under the Fifth
Amendment. In Lithographers Local 17,14 a district court in
California concluded that the garment industry exemption
need not have been based solely on the integrated nature of
the work processes, and that Congress could consider the
economic and social conditions peculiar to that industry.
The court added that Congress, in acting under the
commerce clause, must be extended wide latitude and that
a'mere lack of uniformity in the exercise of its commerce
powers does not constitute a denial of due process. In
Miami Lithographers,15 the Fifth Circuit held that the
congressional exemption for the garment industry was
based on "reasonable considerations." In Brown Trans-
port16 and Patton Warehouse17 the court of appeals said:
Courts today no longer sit in review of the economic
wisdom of the distinctions drawn by legislatures, and
the failure to grant exemptions from §8(e) to all
industries which claim they merit an exemption does
not void the Act.
The above discussion applies also to the equal=protection
argument raised by Respondent's amended answer, in
which it is averred as an "affirmative defense" that "this is
a construction industry contract, and §8(e) constitutes a
denial of equal protection of the law." It might be noted
that Respondent raises first the construction industry
proviso as protection and in the same breath denies the
constitutionality of the construction industry proviso. It
'appears that Respondent claims Section 8(e) of the, Act
violates the Fifth Amendment to the Constitution of the
United States because the two industry provisos exempt
collective-bargaining agreements between unions and
employers in the construction and clothing industries and
NLRB 1224 (1964), where it was held the construction industry exemption
did not apply to an employer, an operator of a retail store chain, who was a
lessee of the owner of the land upon which a shopping center was being
built
12 Mitchell , an official of Respondent Union, testified containers are
"frequently" repaired off the premises of marine terminals See International
Union of Operating Engineers, Locals 542, 542-A, 542-B (York County
Bridge, Inc) 216 NLRB No 67 (1975). Cf. Associated General Contractors of
California, Inc, v N LR B, 88 LRRM 3542, 3546 (C.A 9), which in some
respects is similar to the case at bar
13 International Brotherhood of Teamsters, Local 294 (Island Dock
Lumber), 145 NLRB 484, 490, 491, enfd. 342 F 2d 18 (C.A 2, 1965) See
thus create discriminatory distinctions which deprive
Respondent of the due process of the law. It is established
law that the Board as an administrative agency created by
the Congress will not rule on a constitutionality conten-
tion. This is a matter for the courts. I must therefore, find
that the Act and all its parts are constitutional, as the
courts have determined.
The Respondent's contention that Section 10(b) of the
Act which provides that no complaint shall issue upon any
unfair labor practice occurring more than 6 months prior
to, the filing of the charge bars this proceeding is also
without merit. The illegal union signatory clause in the
collective-bargaining agreement was entered into on July 1,
1974, and the charge filed by APL on February 12, 1975.
On January 15, and again on April 2, 1975, the Union
requested arbitration of APL's action under paragraph 14
of the contract, in contracting ,out to Seatrain Lines work
previously performed by its members. On January 16,
1975, the Union instituted action in the Federal district
court to enjoin APL from awarding the disputed work to
Seatrain Lines.
When the Respondent Union chose to invoke its
collective-bargaining agreement with APL in demanding
arbitration and seeking an injunction in the Federal district
court, such reliance barred the running of the statute of
limitations. No laches can be imputed under such
circumstances where equity so requires. Such a reliance on
the agreement by Respondent remedially entitled APL to
file a charge within 6 months from the time the last of these
actions were taken. Thus, it would appear that, Respon-
dent's claim that APL's action is now barred is based on
the fallacious premise that all of the circumstances detailed
above should be appraised simply as a single wrong done
and completed at the time the collective-bargaining
agreement was executed. Also noteworthy is, Respondent's
failure to raise the matter before trial when the General
Counsel moved on April 8, 1975, for judgment on the
pleadings. It was not until April 15, at the trial of this case
when counsel for, Respondent for the first time raised the
matter of laches. Nor did Respondent mention the 10(b)
defense in its brief. 18
CONCLUSIONS OF LAW
1. Local 1149, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
2. The Charging Party, American President Lines, Ltd.,
Drivers, Salesmen, Warehousemen Local 695 [Madison Employers' Council]
v N.L.R B, 361 F.2d 547 (C.A.D.C, 1966)
14 Brown v. Amalgamated Lithographers Local 17, 180 F.Supp. 294, see
also Amalgamated Lithographers Local 17 (Graphic Arts Employers Assn.),
130 NLRB 985 (1961), enfd 309 F.2d 31 (C.A 9, 1962), cert. denied 372
U S. 943 (1963)
15 Employing Lithographers of Greater Miami [Miami Post Col v.
N L.R.B, 301 F.2d 20 (C A 5, 1962).
16 Truck Drivers Union Local No 728 Teamsters (Brown Transport Corp.),
140 NLRB 1436 (1963), enfd. in part 334 F.2d 539 (C.A D.C, 1964), cert.
denied 379 U S 916
11 Truck Drivers Union Local No 413, Teamsters (Patton Warehouse,
Inc) 140 NLRB 1474 (1963), enfd in part 334 F.2d 539 (C A.D C, 1964),
cert. denied 379 U.S 916.
18 See Dan McKinney Co, 137 NLRB 649, 654 (1962)
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is an employer within the meaning of Section 2(2), and
engaged in commerce and in a business affecting com-
merce within the meaning of Section 2(6) and (7), of the
Act.
3. By entering into, maintaining, giving effect to, or
attempting to enforce -those provisions of section 1, which
refer to the contracting out of work covered by the
agreement , supra, of the collective-bargaining agreement,
Respondent is engaging ' in and has engaged in unfair labor
practices within the meaning of Section 8(e) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that , Respondent has engaged in certain
unfair labor practices in violation of Section 8(e), it is
recommended that a remedial order issue in order that
Respondent refrain from said unfair labor practices.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, there is hereby issued the following
recommended:
ORDER 19
Local 1149, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, San Francisco, California,
their officers, agents, representatives , successors, and
assigns, shall:
1. Cease and desist from:
(a) Entering into, maintaining, enforcing , or giving effect
to those provisions of article 1, "Scope of Agreement"
which refers to the contracting out of work of its collective-
bargaining agreement with the Employer herein , American
President Lines, effective from July 1, 1974, to June 30,
1977, and any other employers engaged in commerce, or in
an industry affecting commerce, whereby said employers
agree to cease or refrain from doing business with any
other person within the meaning of Section 8 (e) of the Act.
(b) Entering into, maintaining, enforcing, or giving effect
to those provisions of article 1, described above, of the
collective-bargaining agreement entered into on July 1,
1974 and effective until June 30, 1977, between Respon-
dent and the American President Lines, 'Ltd., and any
other employers or employer associations engaged in
commerce, or in an industry affecting commerce, over
whom the Board has, and would assert jurisdiction under
the Act, whereby said employers or any associations and
its member-employers agree to cease or refrain from doing
business with any other person within the meaning of
Section 8(e) of the Act.
(c) Threatening, restraining, or coercing American
President Lines, Ltd., or the employers described in (a) and
(b) above, or any other person engaged in commerce or in
an industry affecting commerce, with whom Respondent,
does not have a labor dispute, where an object thereof is to
force or require the employer-members of the above
associations or any other such neutral persons to cease
doing business with the Charging Party herein.
2. Take the following affirmative action:
(a) Post at Respondent Union's business offices, meeting
halls, and all places where notices -to members are
customarily posted, copies of the attached notice marked
"Appendix."20 Copies of said notice, on forms provided by
the Regional Director for Region 20, after being duly
signed by Respondent's representatives, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
members and employees are customarily ,posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
11 (b) Sign and mail to the Regional Director for Region 20,
sufficient copies of said notice, on forms provided by him,
for posting at the premises of the Charging Party, if willing.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of the receipt of this
Recommended Order, what steps the Respondent has
taken to'comply herewith.
19 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
20 In the event that the Board's 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."
LOCAL 1149, CARPENTERS
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial before an Administrative Law Judge at which
all parties were given an opportunity to present evidence
and argument, the National Labor ,Relations Board, has
decided that we violated the law by committing certain
unfair labor practices and has ordered us to post this
notice. We will carry out the Order of the Board and abide
by the following:
463
WE WILL NOT enter into, maintain, enforce, or give
effect to those provisions of Article 1, "Scope of
Agreement" of the current 1974-77 collective-bargain-
ing agreement which refer to, contracting out of work
which we have with American President Lines, and
with any other employers or,employer associations
whereby any such associations or employers cease or
refrain, or agree to cease or refrain ,, from doing
business with any other person within the meaning of
Section 8(e) of said Act.
LOCAL 1149, UNITED
BROTHERHOOD OF
CARPENTERS AND JOINERS
OF AMERICA, AFL-CIO