Los Angeles Bldg & Const. Trades Council

National Labor Relations Board - Board Decisions

Mar 17, 1965

151 N.L.R.B. 770 (N.L.R.B. 1965)

770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Los Angeles Building and Construction Trades Council and
Fowler-Kenworthy Electric Co .; Jones and Jones , Inc.; and In-
terstate Employers , Inc. and John A. Alexander Co., Inc., Party
to the Contract . Case No. 21-CE-44. March 17, 1965
DECISION AND ORDER
Upon a charge filed on May 25, 1964, by Fowler-Kenworthy Elec-
tric Co. (herein called Fowler), Jones and Jones, Inc., and Inter-
state Employers, Inc., against the Respondent, Los Angeles Building
and Construction Trades Council, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Director for Region
21, issued a complaint and notice of hearing on August 6, 1964,
alleging that the Respondent had violated Section 8(e) of the Na-
tional Labor Relations Act, as amended, by affirming; enforcing, and
thereby entering into an agreement whereby John A. Alexander Co.,
Inc. (herein called Alexander), agreed to cease and refrain from
doing business with any person who was not a party to a collective-
bargaining agreement with Respondent or any other appropriate
building trades union or building and construction trades council.
On October 12, 1964, the parties joined in a motion to transfer the
proceedings directly to the Board. The motion included a stipula-
tion whereby the parties waived a hearing before a Trial Examiner
and the issuance of a Trial Examiner's Decision, and agreed to sub-
mit the case to the Board for findings of fact, conclusions of law,
and an order by the Board, based upon a record consisting of the
charge; the pleadings in this proceeding; certain documents in the
case of Building and Construction Trades Council of Los Angeles v.
John A. Alexander Co., Case No. 8-34474, before the Superior Court
of the State of California for the County of Los Angeles; two let-
ters of Respondent's counsel, Julius Reich, dated August 11, 1964;
the Respondent's agreement to refrain from unfair labor practices
in the case of Ralph E. Kennedy, etc. v. Los Angeles Building cQ
Construction Trades Council, Respondent, Civil No. 64-1080-CC,
before the United States District Court, Southern District of Cali-
fornia, Central Division, dated September 3, 1964; and certain stip-
ulations of facts.
On October 19, 1964, the Board granted the aforesaid motion.
Thereafter, the General Counsel, Respondent, and Fowler filed briefs.
Upon the basis of the stipulation, the briefs, and the entire record
in the case, the Board 1 makes the following:
'Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its
powers in connection with this case to a three-member panel [Chairman McCulloch and
Members Fanning and Jenkins].
151 NLRB No. 83.
LOS ANGELES BLDG . & CONST. TRADES COUNCIL
FINDINGS OF FACT
1. COMMERCE
771
Fowler has its principal office at South Gate, California, and is
engaged as an electrical subcontractor in the building and construc-
tion industry. During the calendar year 1963, Fowler purchased
goods valued in excess of $50,000 within the State of California from
various other enterprises which, in turn, purchased said goods di-
rectly from points outside the State of California.
Alexander has its principal office at Huntington Park, California,
and is engaged as a general contractor in the building and construc-
tion industry. During the calendar year 1963, Alexander purchased
goods valued in excess of $50,000 within the State of California from
various other enterprises which, in turn, purchased said goods di-
rectly from points located outside the State of California.
We find that both Fowler and Alexander are engaged in commerce
within the meaning of Section 2(6) and (7) of the Act2
II. THE LABOR ORGANIZATION INVOLVED
Los Angeles Building and Construction Trades Council is, and at
all material times has been, a labor organization within the meaning
of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
On or about February 7, 1958, Respondent entered into a collective-
bargaining agreement with Alexander, a general contractor in the
construction industry. That agreement, which remained in effect at
all pertinent times herein, contained the following provision :
Iv.
The EMPLOYER agrees that if he shall subcontract any work,
provision shall be made in such subcontract for all of the work
performed by said subcontractor coming under the jurisdiction
of any union affiliated with said COUNCILS [Respondent and
certain other Building and Construction Trades Councils in the
area] to be performed pursuant to an executed current agree-
ment with the appropriate union having work and territorial
jurisdiction, affiliated with the COUNCIL in which area the
work is performed.
In early 1964 Alexander was engaged in the construction of a
building in City of Industry, California, pursuant to a contract with
Kern Foods, Inc. Alexander subcontracted the electrical work to
Fowler. Fowler was not, at any pertinent time herein, a party to
2 Siemons Mailing Service , 122 NLRB 81, 85.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any agreement with any building and construction trades council or-
with any union affiliated with any building and construction trades
council. Respondent accordingly made several demands upon Alex-
ander to terminate Fowler's electrical subcontract on the project, and
also filed a complaint with the Superior Court of the State of Cali-
fornia for the County of Los Angeles for an injunction and damages.
based on Alexander's alleged breach of the aforesaid article IV. On
May 4, 1964, that court sustained Respondent's complaint and issued
a preliminary injunction enjoining Alexander from subcontracting-
work to any subcontractor, including Fowler, who was not a party
to a collective-bargaining agreement with an appropriate building
trades council union. The preliminary injunction was amended by
the court on May 20, 1964, to make it clear that the injunction did
not have application to work subcontracted and in progress as of
May 4, 1964, but rather had application to work subcontracted or
begun after that date.
In compliance with the amended injunction, Alexander canceled
certain subcontracts, previously awarded but not yet undertaken by
Fowler, and awarded the work instead to other electrical subcon-
tractors. It was stipulated that the work taken away from Fowler
as the result of the injunction was work to be done at the site of
the construction.
Fowler then filed the charges herein, and the Regional Director
sought a 10(1) injunction .3 Thereafter the parties entered into a
stipulation to refrain from unfair labor practices, which was ap-
proved by the United States District Court for the Southern District
of California on September 3, 1964.
Section 8 (e) of the Act makes it an unfair labor practice for a
labor organization and an employer to enter into an agreement
whereby the employer ceases or refrains from, or agrees to cease,
doing business with any other person 4 A proviso, however, exempts
from the proscription of that section agreements between labor or-
ganizations and employers in the construction industry which relate
to the contracting or subcontracting of work to be done at the con-
struction site.5
8 Ralph D. Kennedy, Regional Director of Region 21 of the National Labor Relations
Board, for and on behalf of the National Labor Relations Board, Petitioner v. Los Angeles
Building and Construction Trades Council, Civil No. 64-1080-CC.
4 To the extent material here , Section 8(e) provides
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 or dealing
in any of the products of any other employer or to cease doing business with any other
person . . . .
6 Section 8 ( e) further provides , in pertinent part 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 , paint-
ing or repair of a building , structure or other work.
LOS ANGELES BLDG. & CONST. TRADES COUNCIL 773
The General Counsel contends that Respondent, by its lawsuit and
,other actions to enforce article IV of its contract, has affirmed, given
'effect to, and entered into an agreement which violates Section 8(e).
The General Counsel concedes that the contract between Respondent
.and Alexander is an agreement between an employer and a labor
organization in the construction industry. He also conceded that
article IV is not unlawful insofar as it applies-in the words of the
8(e) construction industry proviso-to "the contracting or subcon-
tracting of work to be done at the site of the construction, alteration,
painting or repair of a building, structure or other work." However,
he argues that the agreement violates Section 8(e), because, so he
claims, it goes beyond the limitations of the exemption for labor
agreements in the construction industry by also relating to offsite
construction work.
Respondent, on the other hand, while conceding that it has
affirmed, enforced, and given effect to article IV of its agreement
at relevant times herein, denies that article IV exceeds the permis-
sive limitations of the construction industry exemption contained in
.Section 8(e). Thus the sole issue we must determine is whether the
scope of article IV extends beyond jobsite work.
The Board has stated that, in examining contractual provisions
which allegedly violate Section 8(e), it will consider the language
used, the nature of the contractual proscription, and the intent of
the parties as evidenced, inter alia, by their interpretation and admin-
istration of the agreement.6 We have examined article IV and, for
the reasons stated below, believe that its language is too ambiguous
to support the General Counsel's contention that it exceeds the lim-
itations of the construction industry proviso to Section 8(e). We
are also unable to find, from the manner in which article IV was
implemented or from other surrounding circumstances, sufficient evi-
dence to establish that the parties intended that Article to apply to
offsite construction work.
As the General Counsel sees it, the "vice" in article IV lies in its
reference to "all the work performed by said subcontractor" and in
its failure expressly to confine the coverage of that phrase to onsite
work. It is on this basis alone that the General Counsel would read
into the article by implication a purpose to include offsite as well as
•onsite work within the scope of its coverage. We are not persuaded,
however, that in the circumstances of this case such a construction is
necessarily or even reasonably required. Other terms of the same
article reflect an intent to confine the work covered by the quoted
phrase to such work only as falls within the work jurisdiction of
6 Milk Drivers and Dairy Employees Union , Local No. 546, International Brotherhood of
Teamsters, etc. (Minnesota Milk Company ), 133 NLRB 1314 , 1317, affd. 314 F. 2d 861
(C.A. 8).
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unions affiliated with Building and Construction Trades Councils in
the geographical area. There is nothing in this record to show that
the work jurisdiction of any such union includes offsite work. Nor
does it appear that Alexander, a general contractor in the construc-
tion industry, ever undertakes or subcontracts work to be done off
site. The only evidence presented in this proceeding concerning
work undertaken or subcontracted by Alexander relates to work.
that was to be performed at a construction site.?
Other surrounding circumstances also serve to cast doubt upon the,
General Counsel's contention that article IV applies to offsite work.-
Thus, there is a conspicuous absence of any showing that article IV
has been applied to offsite work in the past, even though article IV
has been in existence for over 5 years. Consequently, it does not
appear that the State court injunction has been applied or is intended
to apply to work to be performed offsite. The Respondent has
assured Alexander in writing that it only expects Alexander to com-
ply with the terms of its collective-bargaining .agreement to the ex-
tent that Alexander contracts or subcontracts work to be done at a.
construction jobsite. And the Respondent has also asserted that only-
the fact that Alexander has appealed the issuance of the injunction
has prevented Respondent from seeking a modification thereof ex-
pressly limiting it to jobsite work.8
We conclude, therefore, that the language of article IV is not suf-
ficiently clear to allow a finding that it is illegal under Section 8(e)
of the Act as modified by the proviso. We further conclude that the
evidence of the implementation of article IV and the surrounding-
circumstances likewise do not establish any such illegality. We
shall, accordingly, dismiss the complaint.9
[The Board dismissed the complaint.]
7 That is, the aforementioned work which had been initially subcontracted by Alexander
to Fowler but which was taken away from Fowler as a result of the State court injunction.
8 Letter of Respondent's attorney, Reich, to Alexander's attorneys, dated August 11, 1964.
P Milk Drivers and Dairy Employees Union Local No. 546, IBT (Minnesota Milk Com-
pany), supra; Chauffeurs, Teamsters and Helpers "General" Local Union No. 200, Interna-
tional Brotherhood of Teamsters, etc. (Milwaukee Cheese Company), 144 NLRB 826.
Hamlin Products, Inc. and International Union, United Auto-
mobile , Aerospace and Agricultural Implement Workers of
America (UAW), AFL-CIO. Case No. 26-CA-1895. March 18,
1965
DECISION AND ORDER
On December 23, 1964, Trial Examiner Ivar H. Peterson issued
his Decision in the above-entitled proceeding, finding that Respond-
151 NLRB No. 93.