District Council of Carpenters of Portland

DECISIONS OF NATIONAL LABOR RELATIONS BOARD District Council of Carpenters of Portland & Vicinity; Oregon State Council of the United Brotherhood of Carpenters and Joiners of America; and Southwest Washington District Council of the United Brother- hood of Carpenters and Joiners of America; Ore- gon-Columbia Chapter, the Associated General Contractors of America, Inc. and Pacific Northwest Chapter of the Associated Builders & Contractors, Inc. Case 36 CE 15 July 12, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELIO AND TRUESDALE On April 26, 1978, Administrative Law Judge Wil- liam J. Pannier I1 issued the attached Decision in this proceeding. Thereafter, Respondents, the Charg- ing Party, and the General Counsel all filed excep- tions accompanied by supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board had delegated its au- thority in this proceeding to a three-member panel. 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, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondents, Oregon-Columbia Chapter, The Associated General Contractors of America, Inc., Portland, Oregon, its officers, agents, successors, and assigns; and District Council of Car- penters of Portland & Vicinity, Oregon State Council of the United Brotherhood of Carpenters and Joiners In adopting the Decision of the Administrative Law Judge, we rely on the rationale enunciated in the Board's Decision in Carpenters Local No. 944. United Brotherhood of Carpenters and Joiners of America, AFL-CIO; and Carpenters Local No 235, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Woelke and Romero Framing, Inc.), 239 NLRB 241 (1978), in finding that the clauses herein would otherwise be protected by the construction industry proviso to Sec. 8(e) but for the self-enforcement as- pects of those subcontracting clauses. See International Union of Operating Engineers, Local No. 701. AFL-CIO, Oregon-Columbia Chapter, The Associ- ated General Contractors of America. Inc. (Pacific Northwest Chapter of the Associated Builders & Contractors. Inc.), 239 NLRB 274 (1978). Chairman Fanning dissents from his colleagues' conclusion that the clauses herein are outside the protection of the proviso to Sec. 8(e) because of self-enforcement provisions. Accordingly, he would dismiss the complaint herein. See his dissenting opinion in Pacific Northwest Chapter, supra. of America, and Southwest Washington District Council of the United Brotherhood of Carpenters and Joiners of America, Portland, Oregon, their officers, agents, and representatives. shall take the action set forth in said recommended Order. except that the at- tached notices are substituted lor that of the Adminis- trative Law Judge. APPENDIX A No-ICE To EMPLOYIES POSTED BY ORI)DR OF TIlE NAIIONA LABOR RII.AlIONS BOARI) An Agency of the United States Government WE W.I. NOt enter into, maintain, give effect to, or enforce those portions of article XIII, B, section 5, permitting "such action as [deemed] necessary," and of articles XIV through XVII, requiring workers to be withheld from contrac- tors who fail to make proper contributions to trust funds, and allowing any economic action deemed necessary to be taken against employers who fail to make trust fund contributions, to the extent that such actions are authorized to main- tain, give effect to, or enforce the subcontracting clause, article IV, of our collective-bargaining agreement with District Council of Carpenters of Portland & Vicinity; Oregon State Council of the United Brotherhood of Carpenters and Joiners of America; and Southwest Washington District Council of the United Brotherhood of Carpen- ters and Joiners of America. and to the extent that articles XIII through XVII violate Section 8(e) of the Act. OREGON-COLUMBIA CHAPTER. IHE ASSO(ci- A1TEI) GENERAL CONIRAC'TORS OF AMERICA, IN(C. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the IJnited States Government WE WILL NOT enter into, maintain, give effect to, or enforce those portions of article XIII, B, section 5, permitting "such action as [deemed] necessary," and of articles XIV through XVII, requiring workers to be withheld from contrac- tors who fail to make proper contributions to trust funds, and allowing any economic action deemed necessary to be taken against employers who fail to make trust fund contributions, to the extent that such actions are authorized to main- tain, give effect to, or enforce the subcontracting 243 NLRB No. 66 416 DISTRICT COUNCIL OF CARPENTERS OF PORTLAND clause, article IV, of our collective-bargaining agreement with Oregon-Columbia Chapter, The Associated General Contractors of America, Inc., and to the extent that articles XIIl through XVII violate Section 8(e) of the Act. DISTRICT COUNCI OF CARPENTERS OF PORTLAND & VICINITY OREGON SAITE CO)UN(II. OF IiE UNITED BROTHERHOOD OF CARPENIERS ANIJ JOIN- ERS OF AMERI( A SOUTHWEST WASHIINGTON DISTRICT COtN- CIL OF THE UNITED BROTHERII)OD OF CAR- PENTERS AND JOINERS OF AMERICA DECISION SIATEMENI OF HE CASE WIL.IAM J. PANNIER III, Administrative Law Judge: This case was heard by me in Portland, Oregon, on Decem- ber 6, 1977. On September 14, 1977, the Regional Director for Region 19 of the National Labor Relations Board issued a complaint and notice of hearing, based upon an unfair labor practice charge filed on April 26, 1977. alleging that District Council of Carpenters of Portland & Vicinity: Ore- gon State Council of the United Brotherhood of Carpenters and Joiners of America; and Southwest Washington Dis- trict Council of the United Brotherhood of Carpenters and Joiners of America, herein collectively called Respondent Unions,' had violated Section 8(e) of the National Labor Relations Act, as amended. 29 U.S.C.. Sec. 151. et seq.. herein called the Act. On September 20. the said Regional Director issued an amended complaint and notice of hear- ing, adding Oregon-Columbia Chapter. the Associated General Contractors of America, Inc.. herein called Re- spondent Employer, as a respondent. All parties have been afforded full opportunity to appear, to introduce evidence. to examine and cross-examine wit- nesses, and to file briefs. Based upon the entire record, upon the briefs, and upon my observation of the deameanor of the witnesses, I make the following: FINDINGS OF FACT Washington, and, additionally, admit that, at all times ma- terial. Respondent Employer has been an employer within the meaning of Section 2(2) of the Act, engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. However, Respondent Unions deny the allegations that employer-members of Respondent Employer have dele- gated their collective-bargaining authority to Respondent Employer for the purpose, inter alia, of negotiating and en- tering collective-bargaining contracts on behalf of its em- ployer-members with the bargaining representatives of their employees, including Respondent Unions. The testimony left no dispute that one function of Respondent Employer was to negotiate collective-bargaining agreements with the representatives of employees in basically six crafts, includ- ing Respondent Unions, on behalf of its employer-mem- bers. Thus, the current agreement between Respondent Unions and Respondent Employer, effective from June 1,. 1975, to May 31, 1980, contains a list of employer-members on whose behalf Respondent Employer had been negotiat- ing. although this list has since been modified by additions and withdrawals. Each employer-member has executed a document, entitled "ASSIGNMENT OF BARGAINING RIGHTS." which authorizes Respondent Employer to act as its exclusive agent for the purpose of collective bargain- ing. Under the terms of the assignments. signatory employ- ers agree "to conform to and be bound by" the existing labor agreement with Respondent Unions and to any new agreements reached by Respondent Employer with Re- spondent Unions until rescinding such authority in the manner prescribed in the Assignments. In these circumstances, I find. contrary to Respondent Unions' contention, that there has been a delegation of au- thority by employer-members to Respondent Employer. Moreover, Respondent Employer has exercised that au- thority to execute a single contract on behalf of all its em- ployer-members who employ carpenters. Accordingly, a multiemployer bargaining group, with a single overall unit, exists, and jurisdiction can be asserted over all employers in that group on the basis of their combined operations. Mar- ble Polishers. Machine Operators and Helpers. Local No. 121, AFL-CIO (Miami Marble & Tile Compan'v), 132 NLRB 844. 845, fn. 1 (1961). Therefore. the facts support the allegation, admitted by Respondent Unions, that at all times material Respondent Employer, including its employer-members, has been an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I. JURISDICTION Respondent Unions admit that Respondent Employer is an association of employers engaged in all types of con- struction work throughout the entire State of Oregon and the five counties in the southwestern portion of the State of Washington. They also admit that during the past year the employer-members of Respondent Employer, in the course and conduct of their businesses, purchased goods, materi- als, and supplies valued in excess of $50,000 which were shipped to said employer-members directly from States in the United States other than the States of Oregon and I The names of the Unions appear as amended at Ihe hearing. II. 1tHE I.ABOR ORGANIZATIONS INVOI.VED At all times material. Respondent Unions have each been labor organizations within the meaning of Section 2(5) of the Act. Ill. ISSUE Whether the subcontracting restrictions of the collective- bargaining agreement between Respondent Employer and Respondent Employer and Respondent Unions violate Sec- tion 8(e) of the Act. 417 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. IE All.E(;GlD NFAIR ItABOR PRA( I( F A. The Collective-Bargaining Agreement As noted above, this agreement is effective from June 1, 1975, to May 31. 1980. It contains the following provisions pertinent to this proceeding: Article IV cooperation in following the Grievance Procedures set forth herein. (b) Saturdays, Sundays and holidays shall be ex- cluded from the time limit specified in taking proce- dural steps and/or complying with the results thereof. Section 4. In the settlement of grievances arising out of the interpretation or application of this Agreement, the following procedures shall be followed. It is under- stood that the following procedures will be halted at any Step when mutual agreement is reached. SUB(ONTRA('IORS (I.AUSIS If an employer, bound by this Agreement, contracts or subcontracts. any work covered by this Agreement to be done at the job site of the construction, alteration or repair of a building, structure, or other work to any person or proprietor who is not signatory to this Agree- ment. the employer shall require such subcontractor to be bound to all the provisions of this Agreement. or such employer shall maintain daily records of the sub- contractors employees job site hours, and be liable for payment of these employees wages, travel, Health- Welfare and Dental, Pension, Vacation and Appren- ticeship contributions in accordance with this Agree- ment. The Union agrees to notilf the employer, person or proprietor with thirty (30) calendar days of any delin- quent payment tor wages, travel. Health-Welfare and Dental, Pension, Vacation and Apprenticeship contri- butions owed by the subcontractor. and to further is- sue a certificate to the employer when these payments have been made. (Clarification: With respect to fringes the 30 day period starts on the day after the report is due to the trust administrator.) No work will be let by piecework. contract or lump sum direct with a journeyman, apprentice or trainee for labor services. Article XIII SElTI.EMENI ()R I)SPUIFS SI'RIKEIS AND) I()('KO()IS B. N()N-JUlRISDIC(TIONAI DISPII ES Section I. The jurisdiction of the Board of Arbitra- tion shall be confined in all cases exclusively to ques- tions involving the interpretation and application of any existing clause or provision of this Agreement. Section 2. 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, and all non- jurisdictional disputes arising under this Agreement shall be submitted to the procedure for the settlement of disputes as hereafter provided in Sections 4 and 5. Section 3. No dispute, complaint, or grievance shall be recognized unless called to the attention of' the As- sociation and the Union within thirty (30) calendar days after the alleged violation was committed. (a) In case of a dispute or difference arising out of this Agreement, both parties pledge their immediate Section 5. Should the parties involved in the dispute fail to comply with Steps 2, 3 and 4 as provided herein, upon presentation to them of the written decision, then all means of arbitration shall be considered exhausted. Either part in such case may take such action as they deem necessary, which action will not be considered in violation of any part of this Agreement. In addition, there are specific provisions in the agreement relating to each of the funds referred to in article IV: health-welfare and dental (art. XIV), pension (art. XV), va- cation (art. XVI), and appenticeship (art. XVII). In each of these articles, there are subsections which read: It shall be a violation of this Agreement for the Union to allow workmen covered by this Agreement to work for an employer who fails, after due notice, to make the proper contributions to the [appropriate name Fund in accordance with the provisions of this Agreement. In the event an employer fails to make the monetary contributions in conformity with this Article of the Agreement, the Union is free to take any economic action against such employer it deems necessary, and such action shall not be considered a violation of this Agreement. B. Section l(h) Although the agreement was executed in 1975, and thus outside the 6-month period prior to the filing of the charge on April 26, 1977, the words "enter into" in Section 8(e) of the Act are not construed to mean "only the initial execu- tion of a proscribed agreement." Dan McKinnev Co., et al. 137 NLRB 649, 653 (1962). Rather, this language is con- strued broadly and encompasses the concepts of "mainte- nance, enforcement and reaffirmation." International Or- ganilation of 1Masters, Mates and Pilots, AFL-. CO1 (Cove Tankers Corporation), 224 NLRB 1626 (1976); Dan McKin- nel, Co., supra at 654. Consequently, where a party enforces such a clause or requests adherence to its provisions, its conduct satisfies the "enter into" language of Section 8(e) of the Act. General Teamsters', Warehousemen and Helpers' Union, Local No. 890 (San Joaquin alley Shippers' Labor Committee, et a.), 137 NLRB 641, 644 (1962); Local 1149, United Brotherhood of Carpenters and Joiners of America, AFL--CIO (American President Lines, Ltd.), 221 NLRB 456, In. 2 (1975). In the instant case. Respondent Employer admits in its answer that "to minimize the potential liability of its mem- 418 DISTRI('T ('OtiN('II OF ('ARPF NTFRS ()F '()ORII.AND hers for breach of Article IV, it intends to continue giving effect to that article until it is ordered by the Board or a court not to do so." Moreover. during the 6-month period prior to the filing of the charge. Respondent Unions have sent several letters to Respondent l'mployer, notifying it of members who have "subcontracted work coming under the jurisdiction of the Brotherhood of Carpenters to a non-sig- natory subcontractor" and then restating. in hace verba, the above-quoted portion of article IV. While both Donald C. Staudenmier, executive secretary-treasurer of District Council of Carpenters of Portland & VicinitN, and Roy W. Coles, executive secretary of Oregon State Council of the United Brotherhood of Carpenters and Joiners of America, denied that these letters constituted grievances and denied that article XIII applied to article IV, the act of sending such letters to, as Staudenmier testified. "notify the individ- ual contractor within 30 calendar days so that they have knowledge of it" satisfies the requirement of "maintenance, enforcement and reaffirmation." Moreover, their denials of article Xlll's application to article IV were neither convincing nor supported by other evidence. To the contrary, these denials were controverted directly by their own correspondence. Thus, Staudenmier's notices regarding the presence of nonsignatory subcontrac- tors closed with the sentence, "looking forward to an early response or if possible a meeting at a mutually agreed upon time and location to discuss compliance over the above mentioned grievance." (Emphasis supplied.) More specifi- cally, similar letters, concededly authored on behalf of Coles, opened with the sentences, "This communication from the Union is to serve notice in accordance with Article IV Subcontractor Clause and Article XIII, B. Non-Jurisdic- tional Disputes, Carpenters Labor Agreement." Further, it is conceded that at no point have Respondent Unions ever sought to amend the contract to make clear the purported inapplicability of article XIII. which by its very terms grants to the board of arbitration jurisdiction over "ques- tions involving the interpretation and application of anm existing clause or provision of this Agreement," (emphasis supplied) to article IV. Finally, while Coles claimed to have told the "membership" that article XIII did not apply to article IV, no witnesses were called to corroborate his testi- mony in this regard. Absent an explanation for this failure, it is fairly inferrable that Coles' testimony could not be cor- roborated. Kaiser Foundation Hospitals. et al.., 228 NLRB 468 (1977). In these circumstances, I find that article XIII applies to article IV and that both Staudenmier and Coles were seek- ing enforcement of article IV by their letters with respect to nonsignatory subcontractors sent during the 6-month pe- riod prior to the filing of the charge. Therefore, I find that a preponderance of the evidence shows that there has been "maintenance, enforcement and reaffirmation" of article IV during the 10(b) period which satisfies the "enter into" lan- guage of Section 8(e) of the Act. C. The Nature of.4rticle I'. Primarn or Secondary Section 8(e) of the Act prohibits unions and employers from entering into agreements which allow the latter to re- fuse, inter alia, to do business with any other person. The object of its enactment was to overrule and reverse the prior interpretation ot the Act permitting such agreements. 8 Kheel. l.abor law, Sec. 39.02 (1975). However. notwith- standing the breadth of its proscription. Section 8(e) does not prohibit every agreement to which it could be applied literally. "Congress, in enacting §8(e), had no thought of prohibiting agreements directed to work preservation." Na- tional 1, oodwork Manufaclurers A4ssociation, et al. v. NV. 1. R. B., 386 II.S. 612. 640(1967). The most obvious illus- tration of such a nonprohibited clause is one which pro- scribes subcontracting absolutely. Although literall an agreement not to do business with another person. it s not of itself'. a violation of Section 8(e) of the Act, since it serves to protect the work of employees in the unit represented by the union. See. e.g.. Service and M1aintenancet Emplloee.' Utnion. Local No. . 399, .4 FL CIO (Kal E/ron. dh a Sluperor Soul'enir Book (ompanlv), 148 NLRB 1033, 1034 35 (19641. A major problem. however, arises once the parties go beyond this point and allow the employer to subcontract work, but restrict the terms upon which it can do so. In such situations, a distinction must be drawn between re- strictions which protect the union's "legitimate interest in preventing the undermining of work opportunities and standards of employees in a contractual bargaining unit .... e.g., a primary or work preservation objective, and restrictions which go beyond that valid objective by con- trolling "the employment practices of firms which seek to do business with the employer...." General Teamstlers Lo- cal 386. International Brotherhood of Teamsters, ('hallu#urs. Warehousemen and Helpers of Anerica (Construction Mate- rial.s Trucing. Inc.). 198 NLRB 1038 (1972). "The question is whether the contract provisions in question extend be- yond the employer and are aimed really at the union's dif- ference with another employer." Local No. 636, United As- sociation o/' Journemnen and Apprentices of Plumbing and Pipe Fitting Industr of United States and Canada., 4FL C'10 Detroit Edison C(o.] v. N.L.R.B. 278 F.2d 858. 864 (D.C. Cir. 1960). To satisfy the primary or work preserva- tion purpose. the clause must be "limited to requiring that subcontractors observe 'the equivalent of union wages, hours, and the like.' " Local 437, International Brotherhood of Electrical Workers., 4 FL CIO (Dimeo Construction Co. ). 180 NL.RB 420. 421 (1969). Article IV, section 3. of the agreement in the instant case provides that Respondent Unions are recognized as the rep- resentative of"all workmen falling within the jurisdiction of the agreement .... " While the record shows that Respon- dent Employer's employer-members do not employ such "workmen" on all sites and at all times, even on sites where they are employed, they do employ employees covered by the agreement. Consequently, there is a "principal work unit" whose wages and job opportunities Respondent Unions have a valid interest in protecting. American Feder- ation of Television and Radio Artists (.4FTR.4), Ve York Local ('estinghouse Broadcasting Conpany, Inc. (Del.)), 160 NL.RB 241. 246 247 (1966). They have chosen to do this through article IV. Since that article permits unit work to be subcontracted, its legality must be measured by whether the conditions imposed therein are "limited to re- quiring that subcontractors observe 'the equivalent of union 419 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wages, hours. and the like.' " Local 437. IBEW (Dinico (on- struclion Co.), supra. Under the terms of article IV, employer-members of Re- spondent Employer can subcontract work to a subcontrac- tor not signatory to the agreement only if one of two alter- native conditions are satisfied: Either the subcontractor must agree "to be bound to all the provisions of this Agree- ment" or the employer-member must be liable bfor payment of the "wages, travel. Health-Welfare and Dental. Pension. Vacation and Apprenticeship contributions in accordance with this Agreement." as measured by the hours worked by subcontractors' employees.2 Inasmuch as the first alterna- tive is not restricted to economic matters, cf. Teamsters Lo- cal 386 (Construcrtion Materials Trucking. Inc.), supra, but extends to "all the provisions" of the agreement between Respondent Unions and Respondent Employer. it would encompass such matters as recognition. union security. grievance procedure, and other noneconomic terms. Yet. agreement to such matters is not needed to preserve the work opportunities and standards of "workmen" in the principal work unit. Accordingly, on its face, this alterna- tive exceeds the bounds of restriction necessary to protect their interests. Local 437, IBEW (Dimeo Construction Co.), supra; Teamsters Local 386 (Construction Materials Truck- ing, Inc.), supra; J. K. Barker Trucking Co., et al., supra, 181 NLRB at 518 (1970). It is a secondary provision. Nor does the second alternative stand in a better light. For, if a nonsignatory subcontractor does not agree to "be bound to all the provisions" of the agreement. the em- ployer-member must make the payments to the benefit funds' automatically and without regard to whether the subcontractor is already paying equivalent costs and bene- fits to its employees. Consequently, the requirement that the employer-member pay the $1.93 per hour exceeds the bounds necessary to protect Respondent Unions' work standards. Moreover, as found in Walsh, supra, the pay- ments made to the funds would not be used for the benefit of employees of the nonsignatory contractors, but, as Coles conceded, would be used for benefit of the general member- 2 This interpretation of the second alternative is the one confirmed by the Supreme Court in Walsh v. Schlecht. et al.. 429 U.S. 401, 409-410 1977). Contrary to Respondent Unions' assertion, the Court did not resolve the issue of whether art. IV was lawful under Sec. 8(e) of the Act, nor, so far as the opinion discloses, did any party raise the issue of the legality of art. IV under Sec. 8(e) of the Act in arguing the matter before the Court. Accord- ingly, the Court's decision is not dispositive of the issue presented in the instant case. Neither, contrary to Respondent Union's contention, was the primary nature of art. IV resolved in Griffith Company et al. v. N.L.R.B.. 545 F.2d 1194 (9th Cir. 1976). True, the circuit court did refer to art. IV as providing "a less coercive method ... given tacit approval by the Supreme Court .... " Id. at 1203, fn. 14. However, this reference was made in the context of the court's discussion of the means by which the union in that case had chosen to collect from delinquent employers-that is. withholding em- ployee services from a contractor who, essentially, was obliged to accept liability for the trust fund delinquencies of a subcontractor with whom that contractor had subcontracted. Thus the court's reference to "a less coercive method." It is settled that placing the general contractor in the position of surety for the benefits' payments of a nonsignatory subcontractor is not in- herently a secondary objective-in the proper circumstances and so long as such liability is not enforced by improper methods. General Teamsters. Chauffeurs. Warehousemen and Helpers. Local 982, etc., et al. (J. K. Barker Trucking Co.. e al.), 181 NLRB 515. 520 (1970). But the court did not consider the extent to which this could be done. At the time of the hearing. this amounted to $1.93 per hour for each employee. ship participating in the funds. Thus, the payment of these amounts is "strictly a penalty." Orange Belt District C(ouncil Oa Painters 48. AFL-CIO. e al. (C'alhoun Drwall Conm- pan'), 153 NLRB 1196. 1200-01 (1965). In short, the sec- ond alternative is also a secondary provision. Therefore, contrary to the contention of Respondent Unions, article IV is a secondary clause which violates Sec- tion 8(e) of the Act. However, this does not end the inquiry in this matter, for Respondent Unions further urge that. even if secondary. article IV is protected by the first proviso to Section 8(e) of the Act: "That nothing in this subsection (e) shall apply 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 the construction, alteration, painting, or repair of a building, structure, or other work .... " In response. the other parties argue that this proviso is inapplicable because it does not apply to situations where a party, such as Re- spondent Unions, is entitled to resort to nonjudicial self- help to enforce its provisions and, further, that since it is not carefully tailored to apply only to sites and times when employees in the principal work unit are employed along- side the subcontractors' employees, it is not entitled to the protection of the proviso under the Supreme Court's deci- sion in Connell Construction Co. Inc. v. Plumbers and Steamfitters Local Union No. 100, etc., .421 U.S. 616 (1975). D. The Selj:Help Provisions It is settled that "although a contract within the construc- tion industry proviso to Section 8(e) is exempt from the operation of that section, it may be enforced only through lawsuits and not by threats, coercion, or restraint pro- scribed by Section 8(b)(4)(B)." Ets-Hokin Corporation, 154 NLRB 839. 842 (1965). enfd. sub norn. N.L.R.B. v. Interna- tional Brotherhood of Electrical Workers, A FL -CIO, Local No. 769. 405 F.2d 159. 162 163 (9th Cir. 1968), cert. denied 395 U.S. 921 (1969). This is so because Congress. in leaving lawful certain onsite "hot cargo" agreements, did not in- tend to change the law prohibiting nonjudicial enforcement of such contracts. Local Union No. 48 of Sheet Metal Work- ers Intermtional A.ssociation v. The Hardiy Corporation, 332 F.2d 682. 686 687 (5th Cir. 1964). The policy underlying that proscription, in turn, was based upon "practical judg- ment on the effect of union conduct in the frame work of actual labor disputes and what is necessary to preserve to the employer the freedom of choice that Congress had de- creed." N.L.R.B. v. Local 1976, United Brotherhood of Car- penters and Joiners of A merica, A FL [Sand Door & Plywood Co.], et al., 357 U.S. 93, 107 (1958). Thus. if such self-help clauses were held valid, they could be enforced b judicial action with the result that "the courts could be used to protect the very self-help action in support of a construction site 'hot cargo' clause that Congress clearly intended to pro- hibit." Muskegon Bricklayers Union 5. Bricklavers, Ma- sons and Plasterers International Union of America, (AFL- CIO) (Greater Muskegon General Contractors Association). 152 NLRB 360. 365 (1965). enf'd. 378 F.2d 859 (6th Cir. 1967). 4 ' There was. of course. no self-help resorted to in the instant case. But, this is not significant. since Sec. 8(b(4XB) of the Act applies to situations where self-help occurs, while Sec. 8(e) applies where it is permitted b an agree- ment. 420 I)ISTRI(T (COtNCI. 01F (CARPFNTERS OF PORTLAND the circumstances specified in the proviso. Yet. Section 8(e) of the Act and its first proviso represent an effort to balance the policy of preventing "top-down" organizing with that of mitigating jobsite friction. The choice is one which Con- gress has made. In an effort to avoid potential jobsite fric- tion, it in effect placed a limitation on the scope of the basic proscription, thereby limiting the extent to which "top- down" organizing is prohibited by Section 8(e) of the Act. Nonetheless, "Congress could reasonably take one firm step toward the goal of eliminating ["top-down" organizing without accomplishing its entire objective in the same piece of legislation." C/alino v. Jobhr. 98 S.Ct. 95, 101 (1977). It is equally clear that the subcontracting restriction in Respondents' agreement will not insure, to a certainty. that Respondent Unions' members will never have to work alongside nonunion personnel. Nor is that restriction con- fined to sites and times at which Respondent Unions' mem- hers will he working. Again. however. this is the result of a choice which Congress has made as to the means hby which its purpose of mitigating potential site friction is to he at- tained. Congress could have chosen another method. But. it selected one whereby each union is permitted to have a restrictive subcontracting clause with the contractor w hose employees that union represents. The collective effect of such individual agreements each between a union repre- senting employees in a principal work unit and the contrac- tor or subcontractor employing those employees is a re- duced potential for union and nonunion personnel working on the same site.' Thus, the fact that Respondent Unions do not have members working on all sites or at all times does not negate the applicabilit of the proviso to article IV. F-or that article tends to insure that the work of the principal work unit will he perfbrmed b: union emploNees and,. to that extent, tends to insure that tranquilitv on the site vwill not he disturbed by the presence of nonunion "workmen" performing the work of Respondent Jnion's hargaining unit. In this manner, article IV promotes the objective sought by Congress in enacting the proviso. Conversely, the fact that the subcontracting clause does not insure against other subconlractors, whose employees perform work other than that perftrmed hby employees in Respondent Unions' principal work unit, employing non- union employees on sites where Respondent Ulnions' mem- bers are working does not render the proviso inapplicable to article IV. Certainly there can he no doubt that Respon- dent Unions would like to provide such assurance. Hlow- ever, in the proviso. Congress did not require unions to seek clauses applying to nonunit work. Nor. to invoke the pro- tection of the proviso, did Congress require the contracting parties to condition their agreements on the union status of employees by other contractors and subcontractors. In- stead, in an effort to mitigate potential jobsite friction, (Con- gress imposed no requirements beyond those specified in the proviso. That these requirements do not insure ahso- lutely against the possibility of union and nonunion person- nel working side by side on jobsites is not fatal to subcon- * No evidence has been presented to show that any significant number 1 siles on which employer-members Aork aire other than wcommn sites. e . siles on which the) are noi working alone. but in which other emplo.Nee. employed by oher contractors and subcontrlactors are also working tracting agreements negotiated pursuant to the proviso. since Congress can enact legislation which takes only "one firm step" in that direction without having to accomplish "its entire objective in the same piece of legislation." C/li- /iveo v. ,/ohsi, suxtpr. In sum I find that the rationale of Connell is not appli- cable to situations. such as that presented here. where there is a principal work unit for which the union is the bargain- ing representative. the subcontracting clause pertains to the subcontracting of' unit work, the subcontracting clause is part o a collecti e-bargaining agreement with the contrac- tor who employs the employees in the principal work unit, and there is no evidence that the subcontracting clause is being used as a device to achieve ulterior purposes unre- lated to that collective-bargaing relationship. V. Ill I-:( I ()1 II tIFt t NFAIR I BOR PRAi tIE S I PON ( ()MIN tR( The activities of' Respondent IUnions and Respondent mniplo er set fiorth abhoe, occurring in connection with Re- spondent mployer's operations described in section 1I above, have a close. intimate, and substantial relationship to trlide, traflic, and commerce almong the several States and tend to lead, and have led, to labor disputes burdening and ohsilrucinlg commerce ,and the free flow of commerce. ('()i( i t SIliNS (t LAV, I regon-('oluHm1bila Chapter, 'lhe Associated (ieneral ('onr;lctors of Anierica. Inc.. and its emplover-mnmbers, is an employer w ithin the meanlng of' Section 2(2) ofl the Act, enalged in commerce and in a business tafectinlg commerce within te meaning of Sectlion 2(6) and (7) of the Act. 2. I)islnict ('cuicil o( arpenters of Portland & Vicinits Oregon State (ouncll of the [Inited Brotherhood of (Car- penlers ad ointers ol Anmerical and Southwest NWashing- ton )istrict (Council ol the nited Brotherhood of ('arpen- ters and oiners oft America are each a labor organization within the llmealig of( Section 2(5) of the Act. 3. B entering into, mialnlaning, and giving effect to seli'- help proxisions applicable to article IV of' their 1975-80 collective-bargaining agreement, Oregon-Columbia ('hap- ter. The Associated (ieneral ('ontractors of America, Inc.: District ('ouncil of Carpenters of Portland & Vicinit Ore- gon State ('ouncil of' the United Brotherhood of (Carpenters and Joiners of America: and Southwest Washington Dis- trict C'ouncil of the nited Brotherhood of C'arpenters and Joiners of America have violated Section 8(e) of the Act. 4. No other aspects of the agreement mentioned in ('Con- clusion o I.aw 3, above, violate Section 8(e) of the Act. Tini Ri-u Mi)- Elaving found that Oregon-('Columbia Chapter, The Asso- ciated General Contractors of America Inc.: I)istrict C'ouncil of (Carpenters of Portland & Vicinit; ()Oregon State Council of the nited Brotherhood of Carpenters and Join- ers of America: and, Southwest Waslhington [)istrict Coun- cil of the l'nited Brotherhood of C('arpenters and Joiners of America. engaged in certain untir labor practices, I shall 423 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recommend that they be ordered to cease and desist there- from and that they take certain affirmative action to effec- tuate the policies of the Act.8 Upon the foregoing findings of fact, and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 9 Oregon-Columbia Chapter, The Associated General Contractors of America, Inc., its officers, agents, successors, and assigns, and District Council of Carpenters of Portland & Vicinity; Oregon State Council of the United Brother- hood of Carpenters and Joiners of America: and Southwest Washington District Council of the United Brotherhood of Carpenters and Joiners of America. their officers, agents, and representatives, shall: 1. Cease and desist from entering into, maintaining, giv- ing effect to, or enforcing the self-help portions of articles XIII through XVII insofar as they apply to the subcon- tracting clause, article IV, found in their collective-bargain- ing agreement, to the extent found unlawful herein and to the extent that they violate Section 8(e) of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Oregon-Columbia Chapter, The Associated General Contractors of America, Inc.. shall post at its business of- fice(s) and mail to its employer-members copies of the at- tached notice marked "Appendix A."10 Copies of said no- tice, on forms provided by the Regional Director ibr Region 19, after being duly signed by an authorized repre- sentative of Oregon-Columbia Chapter, The Associated General Contractors of America, Inc., shall be posted and I Absent a showing of special need for extraordinary relief. the standard Board remedy for violations of the type committed here shall be provided. ' 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. 10 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 Pursuant to a Judg- mcnt of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." mailed immediately upon receipt thereof, and those posted shall be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices are customarily posted. Reasonable steps shall be taken by Ore- gon-Columbia Chapter, The Associated General Contrac- tors of America, Inc., to insure that said notices are not altered, defaced, or covered by any other material. (b) District Council of Carpenters of Portland & Vicin- ity; Oregon State Council of the United Brotherhood of Carpenters and Joiners of America: and Southwest Wash- ington District Council of the United Brotherhood of Car- penters and Joiners of America shall post at their business offices and meeting halls and shall mail to their constituent member locals on whose behalf they negotiated the current collective-bargaining agreement copies of the attached no- tice marked "Appendix B."" Copies of said notice, on forms provided by the Regional Director fbr Region 19. after being duly signed by authorized representatives of District Council of Carpenters of Portland & Vicinity: Ore- gon State Council of the United Brotherhood of Carpenters and Joiners of America: and Southwest Washington Dis- trict Council of the United Brotherhood of Carpenters and Joiners of America. as applicable. shall be posted and mailed by them immediately upon receipt thereof" and those posted shall be maintained by them for 60 consecu- tive days thereafter. in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by District Council of Car- penters of Portland & Vicinity: Oregon State Council of the United Brotherhood of Carpenters and Joiners of America: and Southwest Washington District Council of the United Brotherhood of Carpenters and Joiners of America to in- sure that said notices are not altered, defaced, or covered by any other material. (c) Deliver to the Regional Director for Region 19 signed copies of the notices which each signs in sufficient number for posting by Pacific Northwest Chapter of the Associated Builders & Contractors, Inc., they being willing, at all loca- tions where notices are customarily posted. (d) Notify the Regional Director for Region 19, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein. " See fn. 10, supra. 424