Los Angeles Building & Construction Trades Council

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Los Angeles Building and Construction Trades Coun- cil; and Local Union No. 1497, United Brotherhood of Carpenters and Joiners of America (Donald Schriver, Inc.) and Sullivan-Kelley & Associates Los Angeles Building and Construction Trades Coun- cil; and Local Union No. 1497, United Brotherhood of Carpenters and Joiners of America and Sullivan- Kelley & Associates and Donald Schriver, Inc., Par- ty to the Contract Local Local Union No. 1752, United Brotherhood of Carpenters and Joiners of America, AFL-CIO; and Los Angeles County District Council of Carpenters (Topaz Contracting & Development Co., Inc.) and Sullivan and Associates. Cases 21-CC-1680, 21- CE-144, and 21-CC 1842-2 November 13, 1978 DECISION AND ORDER Upon appropriate charges ' duly served on Re- spondents, the Gereral Counsel of the National La- bor Relations Board, acting through the Regional Director for Region 21, on January 11, 1977, issued complaint and notice of hearing in the cases involv- ing Schriver, alleging that Respondent Trades Coun- cil and Respondent Local 1497 had violated Section 8(e) and Section 8(b)(4)(ii)(A) of the Act, and on March 23, 1978, issued complaint and notice of hear- ing in the case involving Topaz, alleging that Re- spondent District Council and Respondent Local 1752 had violated Section 8(b)(4)(i) and (ii)(A) of the Act. Respondents filed answers denying the commis- sion of any unfair labor practices. Thereafter, Gener- al Counsel consolidated the cases involving Schriver and Topaz and on July 6, 1977, issued an amended consolidated complaint and amended notice of hear- ing in the cases, alleging the same unfair labor prac- tices covered in the earlier separate complaints. On August 30 and 31, 1977, the parties in the cases, for the purpose of this proceeding only, en- tered into a stipulation of facts, including extensive exhibits, and a motion to transfer the proceedings to the Board for findings of fact, conclusions of law, The charges in (ases 21 CC 1680 and 21 ('E 144. involving E mployer Donald Schriver. Inc (herein Schriver) were filed by Sullivan-Kelley & As- sociates (herein C'harging Party) against I os Angeles Building and (Con- struction Trades Council (herein Respondent Trades (council) and Local Union No. 1497. United Brotherhood of C(arpenters and Joiners of America (herein Respondent Local 1497). The original and amended charges irivolv- ing the employer Topaz Contracting & Development (Co.. Inc. (herein Io- paz) were filed by Sullivan and Associates (herein Charging Partil) on March 9 and 15, 1977. against Los Angeles (Count? District (Council of Carpenters (herein Respondent District (Council) and l ocal Unionll No. 1752. United Brotherhood of Carpenters and Joiners of America. Al. ('10 (herein Respondent Local 1752) and Order directly by the Board.2 On November 4, 1977, the Board accepted the stipulation and trans- ferred the proceedings to the Board. Thereafter, the parties filed briefs with the Board. Briefs amici curiae were filed by the Chamber of Commerce of the United States of America, the American Federation of Labor and Congress of Industrial Organizations, and the Building and Construction Trades Depart- ment, AFL-CIO. Oral argument in the cases, and in related cases,3 was held before the Board in Washing- ton, D.C., on February 23, 1978. The parties pre- sented arguments as did the amici curiae named above and Laborers' International Union of North America, AFL-CIO. The Board has considered the entire record stipu- lated by the parties and the briefs and oral arguments of the parties and the amici curiae and hereby makes the following findings and conclusions: I THE BUSINESSES OF THE EMPLOYERS At all times material herein, Donald Schriver, Inc., has been a builder-developer and general contractor in the building and construction industry in southern California, with a business address at 1605 Whittier Boulevard, Montebello, California. In the normal course and conduct of its business operations, Schri- ver annually purchases and receives goods and sup- plies valued in excess of $50,000 from suppliers locat- ed within the State of California which, in turn, purchase and receive those same goods and supplies directly from suppliers located outside the State of California. The parties stipulated and we find that Schriver is, and has been at all times material herein, an em- ployer engaged in commerce and in a business affect- ing commerce within the meaning of Section 2(6) and (7) and Section 8(e) of the Act and a person engaged in commerce or in an industry affecting commerce 2The motion stated. in part: The parties agree that the charges, the Complaint and Notice of Hearing, the answer to the complaint, and the Stipulation of Facts. including the exhibits attached thereto. constitute the entire record in these proceedings. and that no oral testimony is necessary or desired by any of the parties. The parties further stipulate that the), waive a hear- ing before an Administrative Law Judge. the making of findings of fact and conclusions of law by an Administrative L.aw Judge. and the is- suance of an Administralive Lawv Judge's decision, and desire to submit this case for findings or fact. conclusions of law. and order directly to the Board. '(olorado Building & ( onsirutnion Irudes ( ouncil ! Utlities Sernilces Engi- neering, Inc.), 239 NLRB 253 (1978); Carpenters Local No 944, United Brotherhood of Carpenters and Joiners of A merica. A FL CIO0 and Carpenters Local No. 235, United Brotherhood of Carpenters and Joiners of America, AFL CIO (Woelke & Romero Framing, Inc.), 239 NLRB 241 (1978). and International Union of Operating Engineers. Local No. 701, AFL CIO, Ore- gon-Columbia Chapter, the Associated General Contractors of America, Inc (Pacific Northwest Chapter of the Associated Builders & Contractors Inc.). 239 NLRB 274 (1978). 264 LOS ANGELES BUILDING & CONSTRUCTION TRADES COUNCIL within the meaning of Section 8(b)(4)(ii)(A) of the Act. Topaz Contracting & Development Co., Inc., is. and has been since January I, 1977, a California cor- poration engaged as a framing and carpentry con- tractor and builder-developer in the building and construction industry in southern California, with of- fices located in Norwalk, California. In the normal course and conduct of its business operations, Topaz annually purchases and receives goods and supplies valued in excess of $50,000 from suppliers located within the State of California which, in turn, pur- chase and receive those same goods and supplies di- rectly from suppliers located outside the State of Cal- ifornia. The parties stipulated and we find that Topaz is. and has been at all times material herein, an em- ployer engaged in commerce and in a business affect- ing commerce within the meaning of Section 2(6) and (7) of the Act and a person engaged in commerce or in an industry affecting commerce within the mean- ing of Section 8(b)(4)(i) and (ii)(A) of the Act. 11, THE LABOR ORGANIZAT IONS INVOLVED The parties stipulated and we find that Respon- dent Trades Council, Respondent Local 1497, Re- spondent District Council, and Respondent Local 1752 are, and at all times material herein have been. labor organizations within the meaning of Section 2(5) and Section 8(b) and (e) of the Act. 111. THE ALLEGED UNFAIR LABOR PRAC TI(CES A. The Stipulated Facts 1. The case involving Schriver In June 1972, Schriver was engaged as owner- builder in constructing a four-unit apartment com- plex in Montebello, California, and employed roofers and/or carpenters, working within the craft jurisdic- tion of Respondent District Council, and also a la- borer. On or about June 12, 1972. Schriver entered into "Articles of Agreement" (herein Agreement) with Respondent Trades Council. The Agreement in- corporated by reference 4 and bound Schriver to the terms and conditions of employment of the effective master labor agreement (herein MLA) between vari- ous employer associations and Respondent District 4Art. 11 of the Agreement states: "The Employer, Developer and/or Owner-Builder agrees to abide by all of the terms and conditions of the current agreements of the respective crafts employed. including wages. hours, working conditions, health and welfare benefits. pension benefits. and other benefits, and further including any amendments, modifications. extensions, changes, supplements and renewals of said agreements negotiat- ed by the parties thereto." Council, with which Respondent Locals 1752 and 1497 are affiliated. Both the Agreement and the 1974 MLA contained provisions restricting subcontracting and provisions concerning economic action by the labor organization party to the contract.' By its terms the Agreement was to remain in effect for a -year period commencing on or about June 12. 1972, with automatic yearly renewals thereafter, sub- ject to specified notice of termination by either party. Schriver did not give any notice of termination and at all times material was signatory to the Agreement. At no time before or after Schriver signed the Agreement did its employees designate the Respon- dent Trades Council or any affiliate or Respondent Local 1497 as their collective-bargaining representa- tive. After signing the Agreement, Schriver did not require the subcontractors on its jobsites to be union subcontractors. Schriver completed the Montebello apartment complex project in 1972, and from 1972 to May 1975. as owner-builder, completed several large apartment projects and some "small" jobs. All work on Schriver's projects was subcontracted to other com- panies except for the work of carpenters and one la- borer. At no time between the signing of the Agree- ment in 1972 and May 1975 did any union representative protest to Schriver's management the failure to abide by the Agreement. 6 In May 1975, Schriver was engaged as owner- builder in the construction of a Montebello town- house project. It employed framer-carpenters who performed work within the craft jurisdiction of Re- spondent Local 1497, but who were not mernbers of, nor represented by, Respondent Local 1497. On the townhouse project Schriver contracted with various subcontractors who were on the project at different times.7 As a result some crafts worked alone on the project at times, while at other times many different crafts worked on the project at the same time. About 70 percent of the subcontractors were signatory to contracts with labor organizations covering the crafts involved. On May 22, 1975, Jim Sogoian, a business repre- sentative of Respondent Local 1497,. approached Schriver's superintendent, Martin, at the townhouse jobsite, and asked whether the carpenters on the job These provisions. discussed hereafter. are set forth in Appendix A to this Decision and Order. 6There is no indication that Respondents had knowledge of Schriler's projects The subcontractors performed the following work with their employees: insulation. plaster. drywall. painting. paving, finished carpentry. cabinets. floors. heating, sheet metal. masonry. formica, and finishing of extenor stairways and balconies The parties stipulated that at all times material herein Sogolan has been an agent of Respondent Local 1497 within the meaning of Sec. 2(13) of the Act. 265 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were "union." Martin replied that they were not. Sogoian then stated that his Union would picket the jobsite if Schriver did not sign the Carpenters agree- ment. The following day, at Martin's request, Sogoi- an brought to the jobsite a copy of the Carpenters contract-the MLA between Southern California General Contractors and United Brotherhood of Carpenters and Joiners of America, effective for an initial term from July 7, 1974, to June 15, 1977--and again stated that the Union would picket for the pur- pose of having the Carpenters agreement signed. During the next week, Sogoian again visited the jobsite and informed Schriver's owner, Donald Schri- ver, that he was legally obligated to sign the Carpen- ters agreement. Sogoian declared that the Agreement which Schriver had signed in 1972 was still in effect since Schriver had never attempted to terminate it, and, under that Agreement, Schriver was bound to the Carpenters contract. A day or two later, Donald Schriver telephoned the office of Respondent Trades Council and spoke with Mathis, its business representative. 9 Mathis con- firmed what Sogoian had said concerning Schriver's legal obligation to sign the Carpenters contract. Mathis then stated that the Carpenters Union would picket thejobsite and take legal action if Schriver did not sign the Carpenters agreement. Donald Schriver attempted to negotiate different terms to the Agree- ment with Respondent Trades Council, but his re- quest to negotiate was denied, and Mathis again de- manded that Schriver sign the standard Carpenters agreement. On May 28, 1975, an agent of Respondent Trades Council, at the direction of Mathis, sent a telegram to Donald Schriver which, in relevant part, read: You subcontracted carpentry work to contrac- tors who do not have an executed agreement with any union affiliated with the council. This action on your part violates Article IV of your agreement with the council dated June 12, 1972. Unless the above-mentioned contractors are im- mediately removed from the job, we have been authorized to sue you for an injunction and damages. Respondents did not file a lawsuit against Schriver to enforce the Agreement, and Respondents have not engaged in any picketing against Schriver. 2. The case involving Topaz Topaz, which was formed in January 1977, began work in February 1977, as a framing subcontractor, 9 The parties stipulated that at all times material herein Mathis has been an agent of Respondent Trades Council within the meaning of Sec. 2(13) of the Act. under contract with the owner-builder, on a town- house project in Claremont. California.'° In February and March 1977. it employed about 30 to 50 employ- ees engaged in laboring and carpentry work. All crafts on the Claremont project were "union" except Topaz' employees. Topaz has not been a party to any labor agreement with any labor organization. On or about February 22. 1977, the day after To- paz began work at Claremont, Larry Ruiz, a business representative of Respondent Local 1752," spoke to Topaz' construction foreman, Tackett. Ruiz asked why Topaz was not signed up with the Union and said that the Union would have to picket if Topaz did not sign a contract with the Union. Later that same day, Mike Sullivan, labor relations consultant for Topaz, arrived at the jobsite while Ruiz was still there and asked Ruiz what contract he had to sign. Sullivan asked Ruiz if he meant the regular Carpen- ters contract with the Master Labor Agreement, and Ruiz replied, "Yes, and that is the only contract that I can sign with Topaz." Sullivan replied that the con- tract was illegal but that he was willing to sign the contract for the Claremont townhouse jobsite only, if the union would accept all the men working for To- paz and stop interfering with the owner-builders. Ruiz replied that he could not accept Sullivan's con- ditions and could not sign any contract other than the Master Labor Agreement. On February 28, 1977, at a jobsite meeting with Ruiz and the attorney for the owner-builder of the Claremont townhouse project, Joe Eickholt, business representative of Respondent District Council,' in- formed Sullivan that the Union could not accept a contract limited to the Claremont project. Thereafter, in support of their contract demand, Respondent Local 1752 and Respondent District Council picketed the Claremont construction project from March 4 to 14, 1977, with signs which read: TOPAZ CONTRACTING & DEV. UNFAIR TO CARPENTERS LOCAL 1752 AFFILIATED WITH THE LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL NO AGREEMENT M At the time of its work at the Claremont project. Topaz was also work- in, as a framing contractor on two other projects. The parties stipulated that at all times material herein Larry Ruiz has been an agent of Respondent Local 1752 within the meaning of Sec. 2(13) of the Act. 12 The parties stipulated that at all times matenal herein Eickholt has been an agent of Respondent District Council within the meaning of Sec. 2(13) of the Act. 266 LOS ANGELES BUILDING & CONSTRUCTION TRADES COUNCIL At the time of picketing at the Claremont project. Topaz had 12 employees present on the project. At that time other employers working on the project in- cluded the plumbing subcontractor, employing plumbers and helpers, and a brick subcontractor, employing brickmasons and helpers. B. The Issues and Contentions The complaint involving Schriver alleges that Re- spondents violated Section 8(e) by engaging in threatening conduct against Schriver which consti- tuted a reentering or reaffirmation of the Agreement and the MLA. The complaint also alleges that Re- spondents violated Section 8(b)(4)(ii)(A) by threaten- ing conduct which had an object of requiring Schri- ver to reenter the Agreement and the MLA. The complaint involving Topaz alleges that Re- spondents violated Section 8(b)(4)(i) and (ii)(A) by picketing Topaz with an object of requiring the Com- pany to enter into the MLA. The parties have stipulated that the alleged threats and picketing by Respondents did in fact occur; and the stipulated facts support the conclusion that an object of the threats and picketing was to require Schriver and Topaz to reaffirm or adopt the subcon- tracting provisions alleged to be violative of Section 8(e). Therefore, the basic issue presented in these cases is whether the subcontracting provisions of the MLA and article IV of the Agreement are secondary within the meaning of Section 8(e) and, if so, whether they are protected by the construction industry pro- viso to Section 8(e). The General Counsel argues that the provisions in issue restrict subcontracting within the meaning of Section 8(e) and are not privileged by the proviso in light of the Supreme Court's view of the proviso set out in Connell Construction Co., Inc. v. Plumbers & Steamfitters Local Union No. 100. 421 U.S. 616 (1975). He further argues that, in any event, the provisions are not privileged because of "self-en- forcement" measures in the contracts. It is the Gen- eral Counsel's position that, in light of the Connell decision, the construction industry proviso privileges subcontracting provisions otherwise contrary to Sec- tion 8(e), only if all the following conditions are met: there is a valid collective-bargaining relationship be- tween the signatory employer and the labor organiza- tion; the subcontracting restrictions are limited to sites where the employer has employees represented i1 Specifically, the complaint alleges that Respondent L.ocal 1497 threat- ened to picket with an object of requiring Schriver to reenter or reaffirm the MLA. including art. l, sec. 103. 103.1. 103.2. and 103.3. and art. Ill. sec. 306: and Respondent Trades Council threatened to picket and to Institute legal proceedings if Schriver did not comply with the Agreement. including art. IV. by the labor organization and to times when the em- ployees are present; and the subcontracting provi- sions do not require that subcontractors be parties to an agreement with a particular union rather than a union in the generic sense. Respondents disagree with the General Counsel's interpretation of the Con- nell decision and contend that the subcontracting provisions in dispute are protected by the proviso. C. Discussion and Conclusions Section 8(e) of the Act t4 declares it an unfair labor practice for a labor organization and an employer to enter into a contract whereby the employer agrees to refrain from dealing in the products of another em- ployer or to cease doing business with any other per- son. Qualifying Section 8(e) is the construction in- dustry proviso which exempts from application of that section any agreement between a labor organiza- tion and an employer in the construction industry relating to the contracting of work to he done at a construction site. The subcontracting provisions placed in issue by the General Counsel are plainly "union signatory" clauses which the Board has found to be secondary in thrust because they are directed at furthering gen- eral union objectives and regulating labor policies of employers other than the employer party to the con- tract.' Thus, article IV of the Agreement requires the contracting employer to subcontract all specified jobsite work "to a person, firm, partnership or corpo- ration that is party to an executed current Agreement with the appropriate Union having work and territo- rial jurisdiction, affiliated with the Council in which ,4 Sec 8(e) reads: It shall be an unfair labor practice for any labor organization and any employer to enter into any contracl or agreement, express or im- plied. 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 busl- ness with an) 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 subsec- tion (el 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. alter- ation. painting. or repair of a building. structure, or other work: Provid- ed further. That for the purposes of this subsection (ec) and section 8(b)(4.)B) the terms "any emploger". "any person engaged in com- merce or in industry affecting commerce". and "any person" when used in relation to the terms "any other producer. processor. or manu- facturer". "any other employer'. or "any other person- shall not in- clude persons in the relation of a jobber. manufacturer. contractor. or subcontractor working on the gotods or premises of the jobber or manu- facturer or performing parts of an integrated process of production in the apparel and clothing industry: Provridedfurther, That nothing in this Act shall prohibit the enforcement of an) agreement which is within the foregoing exception. See Locul 4.7, International Brotherhood of El'ctrical Workers. AFL (10 (Dinteo Construction (oJi 180 NLRB 420 (1969). Whoelke d Romero Irnaming, Int., iupra 267 DECISIONS OF NATIONAL LABOR RELATIONS BOARD area the work is performed." And article I, section 103, of the 1974 MLA, requires that the contracting employer "or any of his subcontractors on the jobsite will not contract or subcontract work to be done at the site of construction . . . except to a person, firm or corporation party to an appropriate, current labor agreement with the appropriate Union, or subordi- nate body, affiliated with the Building and Construc- tion Trades Department, AFL-CIO, or with the In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or an affili- ate thereof." 16 Accordingly, we find that these provi- sions are secondary restrictions which are proscribed by Section 8(e) unless they are protected by the con- struction industry proviso. We consider then whether the proviso privileges the restrictions. It is clear that the subcontracting agreements in issue meet the express requirements of the proviso that they be with employers in the construction in- dustry and be confined to jobsite work. Question is raised, however, as to whether the protection of the proviso is applicable to the agreements in light of the Connell decision. We have considered the signifi- cance of that decision in interpreting the proviso in the several cases issued today. In Woelke & Romero, supra, we stated that, consistent with Connell, the construction industry proviso to Section 8(e) permits union signatory subcontracting clauses in the context of a collective-bargaining relationship, and possibly even without such a relationship if the clauses are aimed at avoiding the Denver Building Trades prob- lem. As the disputed subcontracting agreement in Woelke & Romero was in the context of a collective- bargaining relationship, we found it privileged by the proviso. In the instant proceeding, as discussed below, we also conclude that the disputed subcontracting claus- es were sought in the context of collective-bargaining relationships and, hence, were within the protection of the proviso. Here, however, unlike the Woelke & Romero case where the collective-bargaining relation- ship was not challenged by the parties, the sufficien- cy of the relationships between the Employers and the Respondent Unions is in issue. Determination of the issue requires an examination of the facts con- cerning the relationships and a consideration of what type of collective-bargaining relationship is needed to invoke application of proviso protection to sub- contracting agreements. 16 Sec. 103.1 defines a subcontractor and requires that work be performed at the appropriate hourly rate and be reported to trust funds as required by the contract. Sec. 103.2 requires that all work performed by contractor or subcontractors be done in accordance with "each and all of the terms and provisions" of the contract. Sec. 103.3 requires that, if contractors or sub- contractors shall subcontract jobsite work. provision shall be made in writ- ing for compliance by subcontractors with the full terms of the contract. An examination of the facts shows that Schriver entered into the Agreement with Respondent Trades Council in 1972, and the Agreement, which incorpo- rated the applicable MLA, automatically renewed from year to year in the absence of notice to termi- nate. In 1975, when Respondent Trades Council and Respondent Local 1497 demanded that Schriver reaffirm the Agreement by signing the current 1974 MLA, Schriver refused. It does not appear, however, that Schriver repudiated its bargaining relationship with the Unions. Rather it asked to negotiate differ- ent terms. Respondent Trades Council refused to ne- gotiate separate terms and again demanded that Schriver sign the 1974 MLA. Accordingly, we con- clude that Schriver had an ongoing collective-bar- gaining relationship with Respondent Trades Coun- cil and Respondent Local 1497, and the disputed subcontracting provisions were sought in the context of this relationship. In the case of Topaz, no preexisting bargaining re- lationship existed when the Unions demanded that Topaz sign the 1974 MLA. But it is clear the subcon- tracting provisions involved were sought in contem- plation of a complete bargaining relationship on behalf of Topaz' employees. The contract that Respondents requested Topaz to sign was a complete one, setting forth wages and other terms and condi- tions of employment for Topaz' employees. The sub- contracting provisions were included in that total contract. There is, then, a clear distinction between the union-employer relationship that existed here and that which prevailed in Connell. This distinction, consistent with our holding in Woelke & Romero, su- pra, is critical to resolution of the proviso protection question. In Connell, the union had no past relation- ship with the employer, did not seek to establish one, sought an agreement dealing exclusively with the subject of subcontracting, and specifically disavowed any intent to seek recognition by Connell.'7 We find, therefore, that the subcontracting provision at issue here exists within the context of a collective-bargain- ing relationship as that phrase is used in Connell. In neither Schriver nor Topaz, however, was the collective-bargaining relationship one in which the Unions involved represented a majority of the unit employees. Nevertheless the contracts with Schriver and the proposed contract with Topaz were lawful by reason of Section 8(f) which exempts contracts with minority unions in the construction industry from the unfair labor practice prohibitions of Section 8(a) I The Agreement which the union requested Connell to sign stated, in part: "Whereas. it is understood that by this agreement the contractor does not grant, nor does the union seek, recognition as the collective bargaining representative of any employees of the signatory contractor." 421 U.S. at 620. 268 LOS ANGELES BUILDING & CONSTRUCTION TRADES COUNCIL and (b) of the Act.'8 The subcontracting agreements, therefore, were in the context of valid 8(f) collective- bargaining relationships. The fact that Respondent District Council and Re- spondent Local 1752 picketed for a short period in support of their attempt to establish the 8(f) relation- ship does not in our view impair the effectiveness of the relationship for purposes of applying proviso pro- tection. The picketing which lasted for less than 30 days did not contravene the limitations placed on organizational and recognitional picketing by Sec- tion 8(b)(7)(C); and picketing to obtain the contract containing subcontracting clauses, as distinguished from picketing to enforce such a contract, is permit- ted under the statute.' The Charging Party and the Chamber of Com- merce of the United States of America, amicus curiae, take the position that a collective-bargaining rela- tionship, lawful only by reason of Section 8(f), is not sufficient to permit subcontracting agreements that are protected by the construction industry proviso. They contend that the only type of collective-bar- gaining relationship which affords proviso protection to subcontracting agreements is a relationship which meets the standards of Section 9(a); i.e., one in which the union involved represents a majority of the em- ployees in an appropriate unit. The General Counsel takes the position that an 8(f) relationship is suffi- cient 20 once employees are hired pursuant to an 8(f) contract." Is Sec. 8(f) provides: It shall not be an unfair labor practice under subsections (a) and (b} of this section for an employer engaged primarily in the building and construction industry to make an agreement covenng employees en- gaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organization of which building and construction employees are members (not established. maintained. or assisted by any action defined in section 8(a) of this Act as an unfair labor practice) because (1) the majority status of such labor organiza- tion has not been established under the provisions of section 9 of this Act prior to the making of such agreement. or (2) such agreement requires as a condition of employment. membership In such labor orga- nization after the seventh day following the beginning of such employ- ment or the effective date of the agreement. whichever is later. or (3) such agreement requires the employer to notify such labor organization of opportunities for employment with such employer. or gives such labor organization an opportunity to refer qualified applicants for such employment, or (4) such agreement specifies minimum training ol ex- perience qualifications for employment or pros ides for priorits in op- portunities for employment based upon length of service with such employer, in the industry or in the particular geographical area: Pr-oid- ed, That nothing in this subsection shall set aside the final proviso to section 8(aX3) of this Act: Provided further I hat any agreement w hich would be invalid, but for clause ( I ) of this subsection. shall not be a bar to a petition filed pursuant to section 9(c) or 9(e). 19 See Northeastern Indiana Building and (onstructin raudes (ouncil. el al (Centl/vre Village Apartments). 148 NL.RB 854 (1964). Los 4ngeles Build- ing and (onstrucrion Trades Council (Joseph Freed & Benlarnin H. r4 eber, d/b/a B & J Investment Companv), 214 NILRB 562 (1974). See also (,nstruwc- lion, Production & Maintenance Laorers Union. Local .83. A FL ( '10. t al /Independent Contractors .Associltionl v. N.L.R B. 323 F.2d 422 (9th ('ir. 1963). In interpreting both the construction industry pro- viso and Section 8(b)(4)(A) in the past, the Board has made no distinction between agreements with a mi- nority union permitted by Section 8(f) and agree- ments with a majority union having representative status under Section 9(a), and we see nothing in the Connell decision that requires such a distinction. In Connell, there was no collective-bargaining relation- ship, nor was one sought. Accordingly, the Court did not speak to the question of what type collective- bargaining relationship would or would not be suffi- cient to invoke application of proviso protection to a subcontracting agreement. To the extent, however, that the Court said anything on the issue, it implied that an 8(f) relationship would be sufficient. Thus, in rejecting an argument that the Board had previously approved general subcontracting agreements with "stranger" employers in B & J Investment Company,2 2 the Court speculated that the employer and union, rather than strangers, "may have ... [had] a prehire contract under Sec. 8(f)." Moreover, the Court re- ferred to 8(f) prehire contracts as a "special consider- ation" that Congress gave to organizational cam- paigns of unions in the construction industry. (421 U.S. at 632.) Section 8(f) was enacted in 1959 at the same time Section 8(e) was added to the Act. Both Section 8(f) and the construction industry proviso to Section 8(e) were designed to accomodate the unique situation in the construction industry where contractors and sub- contractors are in close relationship on the jobsite, employment is sporadic in nature. and employers need a ready supply of skilled employees and ad- vance information concerning labor costs.23 It is rea- sonable, therefore, to coordinate the protection the construction industry proviso provides to agreements in the industry with the type of bargaining relation- ship specially permitted in the industry by Section 8(f). The language of the proviso does not limit its protection to agreements made by a union with ma- jority status and, as we read the decision, Connell does not set such a limitation. In the absence of stat- utory language or Supreme Court precedent, we see no reason to construe the construction industry pro- viso to include the requirement that an agreement 20 The General Counsel does not argue the sufficiency sof the cosllectie- bargaining relationships In these cases He attacks the subcontracting claus- es because. even if they are considered to be in the context of a collectlse- bargaining relationship. they are not confined by time and jobsite and thes require subcontractlrs to contract with a particular union. I We find it unnecessary to pass upon the (General Counsels position since here both Schriver and Iopaz had employees for whom a bargaining relationship was sought at all times In question ".1 os 4neeles Building & t onstruction Trades ('ouncil (B a J Investment (onipamnL. upri. discussed at fn. 10 of Connell. supra ' See H. Rep No. 741. 86th Cong.. Ist Sess . I Leg Hist 759. 777 (LMRI)A. 19591: Nalioinal Wloduiork Mlanufacuirer Aisstotlaltlon, e al s. .I.R B. 386 1 S 612 (1967) 269 DECISIONS OF NATIONAL LABOR RELATIONS BOARD protected by the proviso be with a majority union representative. Such a construction is not warranted in an effort to prevent use of 8(f) contracts as organi- zational "weapons." The statute provides other safe- guards against abuse of employee organizational rights by 8(f) contracts. For example, Section 8(f) provides that a contract with a minority union shall not be a bar to a representation petition; Section 8(b)(7)(C) has been construed to limit picketing for recognition in the context of an 8(f) contract;24 and Section 8(b)(4)(B) serves to prohibit picketing to en- force an 8(f) contract which incorporates a second- ary subcontracting agreement. An 8(f) collective-bargaining relationship may be more vulnerable to disruption than a 9(a) relation- ship because inquiry may be made into the union's majority status during the term of the contract. Nev- ertheless, under an existing 8(f) relationship, the union party to the 8(f) contract is the lawful repre- sentative of the employees covered by the contract. As their representative such union has an interest in restricting subcontracting in order to protect conti- nuity of work and fringe benefits for the employees and to insure more stable and harmonious jobsite relations to the same extent a 9(a) representative has. For the foregoing reasons, we conclude that the subcontracting agreements involved are protected by the construction industry proviso to Section 8(e), notwithstanding the Connell decision. There remains for consideration the General Counsel's contention that the subcontracting clauses are not protected by the proviso because of the contract's "self-enforcement" features. In support of this contention the General Counsel relies upon arti- cle III, section 306, of the 1974 MLA, incorporated by the Agreement. Article III covers strikes, lock- outs, jurisdictional disputes, and the complaint quotes as pertinent the following part of section 306: 306. Nothing contained in this Agreement. or any part thereof, shall affect or apply to the Union in any action it may take against any Contractor or subcontractor who has failed, ne- glected or refused to comply with or execute any settlement or decision reached at any step of the grievance procedure or through Arbitration un- der the terms of Article V hereof. 2 5 -4 The Supreme Court has accepted the Board's position that picketing bh a minority union to enforce an 8(f) contract ignored b) the contracting employer party to the contract constitutes picketing for initial recognition within the meaning of Sec. 8(b) (7)(C). IV.L.R.B v. Local LUnionl Na o 103, International Association of Bridge, Structural & Ornamental Iron l Ifrkers. AFL-CIO [Higdon (Contracting Col. 434 U.S. 335 (1978). 2 Art. V covers the procedure for settlement of grievances and disputes and provides for submission to that procedure of an) grievances or disputes ansing out of the interpretation or application of any of the terms or condi- tions of the contract According to the General Counsel, these provisions constitute a "broad" self-help clause which applies to union action with respect to employer failure to com- ply with grievance-arbitration decisions on any griev- able subject, including the subcontracting restrictions in issue-article 1, sections 103, 103.1, 103.2, and 103.3. Where contract terms permit resort to eco- nomic action to enforce secondary provisions, the General Counsel argues, the protection of the con- struction industry proviso is not available. We find merit to the General Counsel's contention. The self- enforcement features of section 306 relate to and af- fect the subcontracting clauses, along with other mat- ters to which the grievance-arbitration procedure ap- plies. By removing contract restrainsts upon "any action" the union may take against an employer who fails to satisfy the specified grievance-arbitration obligations, section 306 gives sanction to economic action by the union to enforce the subcontracting restrictions.2 6 The Board has previously found that, although the proviso to Section 8(e) privileges onsite secondary agreements in the construction industry, such agreements may not be enforced by coercion, and that the proviso protection is lost where contract terms look to strikes or other economic pressure for enforcement of secondary agreements.2 7 Accordingly, we find that the union signatory, sub- contracting clauses of the 1974 MLA-article 1, sec- tion 103, 103.1, 103.2, and 103.3-are violative of Section 8(e) of the Act by reason of self-enforcement provisions. 28 By threatening to picket Schriver to re- 2b Member Murph? does not read this clause the way her colleagues do. Al best. she thinks this clause, unlike the clause in Pacific Northwest. supru. is ambiguous. It is well-settled Board law that where a clause in a contract can be construed two ways one lawful and one unlawful it is given the benefit of the doubt and construed to be lawful This she chooses to do here. (cnlerld leaiULlerr. Chauffeurs. Warehousemen and Helpers, Local 982, Inter- mntatitl Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of .,Ameriaii (J. K Barker Irucking Co.), 181 NLRB 515 (1970) Accordingly. unlike the majority, she would find the contract within the protection of the constru ction industr\ proviso to Sec. 8(e) and would dismiss the complaint In ans event. Member Murphy emphasizes that all five Baord Members agree that the actual use of ecnomic action to enforce a clause protected by Ihe construction industrD proviso under Sec. 8(e) violates the Act. 2 See ,lusklcgon Brick lartri L'nion t5, Brick la er., Masons and Plasterers Inerlntiran l Union of .4nerica A FL CIO) (Greater Muskegon General Con- trattori 4usociation). 152 NLRB 360 (1965): ETS-HoAin Corporation, 154 NI RB 839 (1965): Fresno , hfadera. Kings and Tulare (Counties Building and (Cmrora(tion Traders Coumiili (G(age Brothers (Contruction), 218 NI RB 39 (1975): !iniirnitional Union of Operating Engineers. Local Union No 12. 4f Cl ( /O (Robert E. Fulon). 220 NLRB 530 (1975) 2 ( hairman Fanning dissents from this finding. ie has previously stated his position that the mere existence of self-enforcement features in a con- Irlact does not make the construction industry proviso inapplicable to the contract. See, for example, his dissenting opinion in the kUuskegon case cited above. Moreover. w holly apart from his disagreement with the general posi- tion of the majorit) that the proviso does not protect contracts with self- enforcement features. Chairman Fanning does not consider the provisions of sec. 306 complained of in this case to constitute self-help measures. At most the provisions exempt economic action from the no-strike prohibitions if the contract Thes do not affirmatively authorize ant economic action and thus do not pro, ide for enforcement of subcontracting provisions con- 270 LOS ANGELES BUILDING & CONSTRUCTION TRADES COUNCIL quire it to reaffirm unlawful secondary agreements, Respondent Trades Council and Respondent Local 1497 reaffirmed and reentered a contract requiring an employer to cease doing business contrary to Sec- tion 8(e), 9 and engaged in coercion in violation of Section 8(b)4)(ii)(A). By picketing Topaz to require it to enter into a secondary agreement prohibited by Section 8(e), Respondent District Council and Re- spondent Local 1752 violated Section 8(b)(4)(i) and (ii)(A). THE REMEDY Having found that Respondents have engaged in unfair labor practices, we shall order them to cease and desist therefrom and to take certain affirmative action to effectuate the purposes of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, we make the following: CONCLUSIONS OF LAW I. Donald Schriver, Inc., and Topaz Contracting & Development Co., Inc., are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The following organizations are labor organiza- tions within the meaning of Section 2(5) of the Act: Los Angeles Building and Construction Trades Council; Local Union No. 1497, United Brotherhood of Carpenters and Joiners of America; Los Angeles County District Council of Carpenters; Local Union No. 1752, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. 3. The 1974 Master Labor Agreement between Southern California General Contractors and United Brotherhood of Carpenters and Joiners of America and the "Articles of Agreement" signed by Donald Schriver, Inc., and Los Angeles Building and Con- struction Trades Council, which incorporates the terms of the 1974 Master Labor Agreement, are agreements contrary to Section 8(e) of the Act by reasons of self-enforcement provisions. 4. By threatening to picket Donald Schriver, Inc., with an object of requiring it to reaffirm the 1974 Master Labor Agreement, Respondent Trades Coun- cil reentered the "Articles of Agreement" in violation of Section 8(e) of the Act and engaged in coercion in violation of Section 8(b)(4)(ii)(A) of the Act. 5. By threatening to picket Donald Schriver, Inc. with an object of requiring it to reaffirm the 1974 trary to the prohibitions of Sec. 8(bX4XB). Chairman Fanning would there- fore find the contract within the protection of the construction industr) proviso and would dismiss the complaint. 29 See Brotherhood of Painters, Decorators and Paperhangers of Amrerila, Local Union No. 823, AFL-CIO (Independent Painting Contractors of Ve. Mexico), 161 NLRB 620, 630 (1966). Master Labor Agreement, Respondent Local 1497 reentered the Master Labor Agreement in violation of Section 8(e) of the Act and engaged in coercion in violation of Section 8(b)(4)(ii)(A) of the Act. 6. By picketing Topaz Contracting & Devel- opment Co., Inc. with an object of requiring it to sign the 1974 Master Labor Agreement, Respondent Dis- trict Council and Respondent Local 1752 violated Section 8(b)(4)(i) and (ii)(A) of the Act. 7. The above unfair labor practices are unfair la- bor practices affecting commerce and the free flow of commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that: A. Los Angeles Building and Construction Trades Council, Los Angeles, California, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Entering into, maintaining, giving effect to, or enforcing its "Articles of Agreement" with Donald Schriver, Inc., to the extent found unlawful herein by reason of self-enforcement provisions. (b) Coercing or restraining Donald Schriver, Inc., or any person engaged in commerce or in an industry affecting commerce, where an object thereof is forc- ing or requiring an employer to enter into an agree- ment which is prohibited by Section 8(e) of the Act by reason of self-enforcement provisions. 2. Take the following affirmative action: (a) Post at its business office and meeting halls copies of the attached notice marked "Appendix B." 3 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by an authorized representative of Respon- dent Trades Council, shall be posted by it immedi- ately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Trades Council to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and deliver to the Regional Director for Region 21 sufficient copies of said notice, to be fur- nished by the Regional Director, for posting by Don- ald Schriver, if willing. (c) Notify the Regional Director for Region 21, in "' In the event that this Order is enforced ' 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" 271 DECISIONS OF NATIONAL LABOR RELATIONS BOARD writing, within 20 days from the date of this Order, what steps Respondent Trades Council has taken to comply herewith. B. Local Union No. 1497, United Brotherhood of Carpenters and Joiners of America, Los Angeles, California, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Entering into, maintaining, giving effect to, or enforcing the 1974 Master Labor Agreement as to Donald Schriver, Inc., to the extent found unlawful herein by reason of self-enforcement provisions. (b) Coercing or restraining Donald Schriver, Inc., or any person engaged in commerce or in an industry affecting commerce, where an object thereof is forc- ing or requiring an employer to enter into an agree- ment which is prohibited by Section 8(e) of the Act by reason of self-enforcement provisions. 2. Take the following affirmative action: (a) Post at its business office and meeting halls copies of the attached notice marked "Appendix C." 31 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by an authorized representative of Respon- dent Local 1497, shall be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Local 1497 to insure that said notices are not altered, defaced, or covered by any other ma- terial. (b) Sign and deliver to the Regional Director for Region 21 sufficient copies of said notice, to be fur- nished by the Regional Director, for posting by Don- ald Schriver, Inc., if willing. (c) Notify the Regional Director for Region 21, in writing within 20 days from the date of this Order, what steps Respondent Local 1497 has taken to com- ply herewith. C. Los Angeles County District Council of Car- penters and Local Union No. 1752, United Brother- hood of Carpenters and Joiners of America, Los An- geles, California, their officers, agents, and representatives, shall: 1. Cease and desist from inducing or encouraging the employees of Topaz Contracting & Development Co., Inc., or any other employer engaged in com- merce or in an industry affecting commerce, to re- fuse to perform services in the course of their em- ployment and coercing or restraining Topaz Contracting & Development Co., Inc., or any person engaged in commerce or in an industry affecting commerce, where an object therof is forcing or re- quiring an employer to enter into an agreement which is prohibited by Section 8(e) of the Act by reason of self-enforcement provisions. 2. Take the following affirmative action: (a) Post at their business offices and meeting halls copies of the attached notice marked "Appendix D." 32 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by an authorized representative of Respon- dent District Council and Respondent Local 1752, shall be posted by each immediately upon receipt thereof and be maintained by each 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 each to insure that said notices are not altered, defaced, or covered by any o:her material. (b) Sign and deliver to the Regional Director for Region 21 sufficient copies of said notice, to be fur- nished by the Regional Director, for posting by To- paz Contracting & Development Co., Inc., if willing. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps they have taken to comply herewith. 1See fn. 30.upra See fn. 30. supra. APPENDIX A Contract Clauses in Issue as Described in the Amended Consolidated Complaint in Cases 21-CC- 1680 and 21-CE-144 and Case 21-CC-1842-2 Article IV of the 1972 Articles of Agreement reads as follows: ARTICLE IV The Employer, Developer and/or Owner- Builder agrees that he shall contract or subcon- tract all jobsite work set forth in Article I above to a person, firm, partnership or corporation that is party to an executed, current Agreement with the appropriate Union having work and territorial jurisdiction, affiliated with the Coun- cil in which area the work is performed. Article I, sections 103, 103.1, 103.2, and 103.3, and article III, section 306 of the 1974 Master Labor Agreement provide, in pertinent part, as follows: 103. The Contractor agrees that he or any of his subcontractors on the jobsite will not con- tract or subcontract work to be done at the site of construction, alteration, painting, or repair of a building, structure, or other work, except to a person, firm or corporation, party to an appro- priate, current labor agreement with the appro- priate union, or subordinate body, affiliated with the Building and Construction Trades De- 272 LOS ANGELES BUILDING & CONSTRUCTION TRADES COUNCIL partment, AFL-CIO, or with the International Brotherhood of Teamsters, Chauffeurs. Ware- housemen and Helpers of America, or an affili- ate thereof. 103.1. A subcontractor for the purposes of this Agreement, with the exception of the general provision immediately above, is defined as any person, firm or corporation holding a valid State Contractors' License and agrees under contract in writing with the Contractor or in writing with his subcontractors to perform any work covered by this Agreement, and employs workmen as employees to perform services covered by this Agreement, including the performance of labor. and/or furnishing or installation of material, or the operation of equipment. All employees of subcontractors will perform work at the appro- priate hourly rate and will be reported to such trust funds as required by the Agreement. 103.2. All work performed by the Contractors or subcontractors and all services rendered for the Contractors or subcontractors, as herein de- fined, shall be rendered in accordance with each and all of the terms and provisions hereof. 103.3. If the Contractor or subcontractors shall subcontract jobsite work covered under the jurisdiction of the United Brotherhood of Car- penters and Joiners of America, including the furnishing and installation of material, perfor- mance of labor, and the operation of equipment, provision shall be made in written contract for the observance and compliance by his subcon- tractors with the full terms of this Agreement. 306. Nothing contained in this Agreement, or any part thereof, shall affect or apply to the Union in any action it may take against any Contractor or subcontractor who has failed, ne- glected or refused to comply with or execute any settlement or decision reached at any step of the grievance procedure or through Arbitration under the terms of Article V hereof.... APPENDIX B NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WI!.L NOT enter into, maintain, give effect to, or enforce Articles of Agreement with Donald Schriver, Inc., to the extent found unlawful by the Board by reason of self-enforcement provisions. WE WILL NOT coerce or restrain Donald Schriver, Inc., or any person engaged in commerce or in an industry affecting commerce, where an object thereof is forcing or requiringan employer to enter into an agreement which is prohibited by Section 8(e) of the Act by reason of self-enforcement provisions. Los ANGELES BUILDING AND CONSTRUL:TION TRADES COUNCIL APPENDIX C NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT enter into, maintain, give effect to, or enforce the 1974 Master Labor Agreement as to Donald Schriver, Inc., to the extent found un- lawful by the Board by reason of self-enforcement provisions. WE WILL NOT coerce or restrain Donald Schriver, Inc., or any person engaged in commerce or in an industry affecting commerce, where an object thereof is forcing or requiring an employer to enter into an agreement which is prohibited by Section 8(e) of the Act by reasons of self-enforcement provisions. LOCAL UNION No. 1497, UNITED BROTHER- HOOD OF CARPENTERS AND JOINERSOF AMERICA APPENDIX D NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT induce or encourage the employ- ees of Topaz Contracting & Development Co., Inc., or any other employer engaged in com- merce or in an industry affecting commerce, to refuse to perform services in the course of their employment, and WE WILL NOT coerce or restrain Topaz Contracting & Development Co., Inc., or any person engaged in commerce or in an indus- try affecting commerce, where an object thereof is forcing or requiring an employer to enter into an agreement which is prohibited by Section 8(e) of the National Labor Relations Act by rea- sons of self-enforcement provisions. Los ANGELES COUNTY DISTRICT COUNCIL OF CARPENTERS LOCAL UNION No. 1752, UNITED BROTHER- HOOD OF CARPENTERS AND JOINERS OF AMERICA 273