Muskegon Bricklayers Union No. 5, Etc.

360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 12, in writing, within 20 days from the receipt of this Decision and Recommended Order, what steps the Respondent has taken to comply herewith.2 2In the event that this Recommended Order is adopted by the Board this provision shall be modified to read. "Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL bargain collectively, upon request, with Teamsters, Chauffeurs, Warehousemen & Helpers Local Union #991, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, as the exclusive bargaining representative of all employees in the bargaining unit described below concerning rates of pay, wages, hours of employ- ment, and other conditions of employment, and, if an understanding is reached, embody the same in a signed agreement. The bargaining unit is: All production and maintenance employees at our plant, 1320 South Monroe Street, Tallahassee, Florida, including route salesmen, truck helpers, utility men, shipping and receiving employees, and cooler servicemen, but excluding office clerical employees, guards, and supervisors as defined in the Act. WE WILL NOT refuse to bargain collectively as aforesaid nor will we, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the rights to bargain collectively through the said Union. TALLAHASSEE COCA-COLA BOTTLING COMPANY, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting. and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Room 706, Federal Office Building, 500 Zack Street, Tampa, Florida, Telephone No. 228-7711, if they have any question concerning this notice or compliance with its provisions. Muskegon Bricklayers Union #5, Bricklayers, Masons and Plasterers International Union of America (AFL-CIO) and Greater Muskegon General Contractors Association. Cases Nos. 7-CR-1209 and 7-CC-258. May 4,1965 DECISION AND ORDER This proceeding is brought under Section 10(b) of the National Labor Relations Act, as amended. On April 21 and 24, 1964, the Greater Muskegon General Contractors Association, herein called the 152 NLRB No. 38. MUSKEGON BRICKLAYERS UNION NO. 5, ETC. 361 Association, filed the charges in the above-numbered cases with the National Labor Relations Board and timely served copies upon the Re- spondent Union. On May 22, 1964, the Acting Regional Director issued an order consolidating cases, complaint, and notice of hearing in which it was alleged, inter alia, that the Respondent by certain de- scribed conduct violated Section 8(b) (3) and (4) (A) of the Act. Copies of this order, complaint, and notice were duly served upon the parties. On June 17 the Respondent filed its answer to the complaint denying it had engaged in any unlawful conduct and requesting that the complaint be dismissed. Thereafter the parties, including the General Counsel, joined in a motion to transfer proceeding to the Board and stipulation in which they waived the right to a hearing and a Trial Examiner's Decision and moved to submit the case directly to the Board for findings of fact, conclusions of law, and order. In the motion the parties agreed that the charges, complaint, and answer 1 would constitute the entire record in the proceeding. On July 14,1964, the Board issued its order granting motion, approving stipulation, and transferring cases to the Board. Thereafter the General Counsel and the Respondent filed briefs with the Board. Upon the entire record in these cases the Board makes the following : FINDINGS OF FACT AND CONCLUSIONS OF LAW I. THE BUSINESS OF THE ASSOCIATION The Association maintains its principal office in Muskegon, Michi- gan, and is a membership association composed of employers engaged in the building and construction industry in the area of Muskegon. It represents numerous employers in the construction industry in collec- tive bargaining with the Respondent and other labor organizations. During the year 1963, a representative period, employer-members of the Association purchased and caused to be transported to their places of business in the State of Michigan goods and materials valued in excess of $100,000, which were shipped from points outside the State of Michigan. Accordingly, we find that the Association is an employer within the meaning of Section 2(2) of the Act and is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent has been and is a labor organization within the meaning of Section 2 (5) of the Act. 1 The parties' stipulation included certain other formal papers in the record. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES a. Appropriate unit and majority representation The parties have agreed, and we find, that Respondent is the collec- tive-bargaining representative of employees in the following appro- priate unit : All employees engaged in bricklaying, stone masonry, marble masonry, artificial masonry, and plastering, caulking, and cleaning of brick for members of the Association, excluding all other employees and supervisors as defined in the Act. b. The failure to agree on a new contract Respondent and the Association have been parties to a number of collective-bargaining agreements covering employees in the aforesaid appropriate unit. The last of these contracts expired on or about March 31, 1964. Beginning several months before that date, the two parties attempted to negotiate a new bargaining agreement. Since April 18, 1964, Respondent has adamantly demanded that a new contract contain the following clause : It is agreed that the members of Bricklayers Local Union #5 may refuse to work on any job where any of the work, irrespective of craft, is performed, has been performed, or is to be performed by craftsmen who enjoy less favorable wages and working conditions than is provided in the current collective-bargaining agreement between the equivalent Muskegon County Building Trades Local Union and its contracting employers. Such refusal shall not be grounds for discharge or other disciplinary action, but shall be regarded as a failure of the employer to provide suitable work. By April 18, 1964, the two parties had agreed on all terms for a new contract, except for the above clause. Respondent insisted that it must be included in a new contract; the Association refused to agree. If the parties had not disagreed on the inclusion of the clause, a new collec- tive-bargaining contract would have been signed on April 18. Beginning about April 20, Respondent began picketing jobsites at which the employees, whom it represents, were working for members of the Association with the object of forcing the Association to agree to the incorporation of the quoted clause in a new collective-bargaining agreement. The picketing caused a complete cessation of work at all jobsites where members of the Association had contracts, including work which was to be performed by building trades employees other than those represented by Respondent. The picketing was subse- quently enjoined. MUSKEGON BRICKLAYERS UNION NO. 5, ETC. 363 C. The issues The parties have stipulated that the case presents the following issues: (1) Whether the quoted clause is within the ambit of Section 8 (e) 2 (2) Whether, if so, it is lawful under the construction industry pro- viso to that section. (3) Whether, assuming that the clause does fall within the con- struction industry proviso, Respondent may use strike pressure to obtain it. D. Position of the Parties The General Counsel contends that the clause over which bargaining foundered constitutes an implicit agreement that the signatory employer will cease doing business with any other employer at any jobsite where an unfair employer is at work and thus violates Section 8(e). He also contends that the clause does not deal with contracting or subcontracting of work since it is possible that an offending employer might not have a contract or subcontract or any business relationship at all with the signatory employer. Finally, he contends that even if the clause is made lawful by the construction industry proviso to 8 (e), Respondent may not use coercion to force the Association to agree to it. The General Counsel concludes that the Respondent violated Sec- tion 8(b) (4) (i) and (ii) (A) and 8(b) (3) of the Act by its demands and its picketing to force incorporation of the disputed clause in an agreement. Respondent denies that the disputed clause is within the ambit of Section 8(e). It contends that the clause is a legitimate "work stand- ards" clause intended to preserve union work for union men at union rates .3 It also argues that, assuming the clause is a "hot cargo" agree- ment, it is made lawful by the building construction proviso to Section 8(e). Finally, it argues that if the clause is lawful, a strike to obtain it is also lawful. 1. Does the clause come within the ambit of Section 8 (e) The precise limit of the disputed clause is not clear. But it does manifestly extend beyond protection of the work and work standards 2 "It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using , selling, transporting, or otherwise dealing in any of the products of any other employer or to cease doing busi- ness with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforceable and void: Provided, That nothing in this subsection (e) shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work . . 11 3 Truck Drivers Union Local No. 413, International Brotherhood of Teamsters, etc. (Patton Warehouse, Inc, et al. ) v. N.L.RB., 334 F. 2d 539 (CA D.C.). 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employees represented by Respondent. By the terms of the agree- ment, the Employer is placed on notice that he will be faced with a strike by his own employees if he accepts a contract for the performance of work at a jobsite where any other contractor not employing crafts- men customarily represented by Respondent, and not having any con- tractual relationship with the contracting employer, pays less than the union wages and benefits prescribed by other unions. An employer's agreement with a labor organization permitting employees to refuse to work in the event the employer does business with another employer considered objectionable by the labor organization is in practical effect the equivalent of an agreement by the employer not to do business with other employers within the meaning of Section 8(e). The Board and the courts have so held.4 Further, it is not the type of clause "which merely require[s] subcontractors to meet the equivalent of union standards in order to protect the work standards of the employees of the contracting employer," which has been held to be lawful." Respond- ent does indeed argue that the clause is intended to preserve the work standards of the employees it represents, but this argument seems to be premised on the proposition that a contractor who pays substandard wages to any employees, whether or not represented by Respondent, poses a threat to the economic well-being of Respondent's members. The "work standards" judicially recognized exception to Section 8 (e) has never been construed in so broad a manner. If it were, the second- ary boycott provisions of the Act, and such decisions as Denver Build- 4 Los Angeles Mailers Union No. 9, etc (HillbroNewspaper Printing Co ) v N L R B , 311 F 2d 121 (C.A .D C ; Truck Drivers Union Local No. 413, etc v. N.L R B., supra, at 543' To the extent that the clause would protect such refusal to cross, [ a picket line in promotion of a secondary strike or boycott ] It would then be authorizing a sec- ondary strike , and would pro tanto be void under § 8(e) of the Act . There is no merit to the unions' suggestion that this clause is outside the reach of § 8(e) be- cause it protects individual refusals, not union-induced refusals We read our own cases as having rejected this argument. . . . 5 Truck Drivers Local Union No. 413, etc v. N.L R B., supra, at 548; Orange Belt Dis- trict Council of Painters No. 48, AFL-CIO, etc ( Calhoun Drywall Co) v. N .L.R B., 328 F. 2d 534, 538 (CAD.C ) : The key question presented by subcontracting clauses in union agreements with general contractors is whether they are addressed to the labor relations of the sub- contractor, rather than the general contractor . If so, they are secondary as to the general contractor and may not be enforced against him through economic weapons . . . But not all subcontracting clauses are so designed The test as to the "primary" nature of a subcontractor clause in an agreement with a general contractor has been phrased by scholars as whether it "will directly benefit employees covered thereby," and "seeks to protect the wages and job opportunities of the em- ployees covered by the contract ." We have phrased the test as to whether the clauses are "germane to the economic integrity of the principal work unit ," and seek "to protect and preserve the work and standards [ the union] has bargained for," or instead "extend beyond the [ contracting] employer and are aimed really at the union's difference with another employer" . . . . [ W]e indicated that "to limit the work to employers maintaining labor standards commensurate with those required by the Union" was within "the area of a legitimate union claim." [Citations omitted ] MUSKEGON BRICKLAYERS UNION NO. 5, ETC. 365 ing Trades 6 and Moore Drydock,7 could be substantially suspended by agreement. Yet, the legislative history of the 1959 amendments shows clearly that Congress intended the foregoing decisions to retain their full force and effect.8 We hold therefore that the disputed clause is not the type of "work standards" clause exempted from the provisions of Section 8(e). 2. Whether the clause is lawful under the construction-industry proviso to Section 8(e) The first proviso to Section 8 (e) exempts from its coverage "an agreement between a labor organization and an employer in the con- struction industry relating to the contracting or subcontracting of work to be done at the site of the construction...." Although Congress thus made lawful certain onsite "hot cargo" construction contracts, it also made clear an intention that such contracts could be enforced only by a lawsuit and not by strikes or other self-help economic action pro- scribed by Section 8(b) (4) (B).9 Here the proposed clause not only contains an implied agreement not to do business at construction sites where union wage rates are not being paid, but at the same time sanc- tions private, economic action by the employees in the event the employer breaches the agreement. This proposal looks not to the courts for enforcement, but to strikes. If the proffered clause were valid, and the employer were to breach the agreement, the employ- ees then would be lawfully entitled under the agreement to walk off the job. If the employer thereupon sought to discipline them, it would follow that the employees could sue to enjoin such disciplinary action on the basis of the contract, assuming always that the union takes no further action to induce the employees to strike. Thus, by holding the instant clause valid, 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 prohibit.1° We can see no difference in practical effect in terms of prohibited self-help between a situation 8 N L.R B. v Denver Building and Construction Trades Council, et at. (Gould & Preisner), 341 U S. 675. 7 Sailors' Union of the Pacific AFL (Moore Dry Dock Company), 92 NLRB 547. 8 See, e.g., I Leg Hist. of the Labor-Management Reporting and Disclosure Act of 1959 (U.S. Govt. Print. Office, 1959 ), at 943. 9 Northeastern Indiana Building and Construction Trades Council (Centlivre Village Apartments ), 148 NLRB 854; Sheet Metal Workers v. Hardy Corp , 332 F. 2d 682 (C.A 5) , Orange Belt District Council of Painters No. 48, AFL, etc. (Calhoun Drywall Co ) v. N L.R B., 328 F 2d 534, 537 (C A D C.) ; I Leg. Hist of the Labor-Management Reporting and Disclosure Act of 1959 (U S. Gov't Print. Office, 1959), at 943-944 10 "Thus, although employers and unions who are under this exemption [ construction industry proviso] may lawfully enter into such agreements , and may resort to the courts for their enforcement under applicable principles of contract law, no coercion or restraint- economic or otherwise-may be used by any party to such agreement , even if entered into voluntarily by both parties, to compel the other party to live up to the contract or to refrain from breaching it." Memorandum by Senator Goldwater analyzing the new law. II Leg. Hist. Labor-Management Reporting and Disclosure Act of 1959 (U S Govt. Print. Office 1959), at 1858 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD where a union induces employees to strike after employer violation of a lawful "hot cargo" clause in order to remedy such breach, clearly unlawful action, and a situation where, in order to prevent such a breach, the union tells the employees that if the employer should vio- late the "hot cargo"' clause in the future the employees may cease work with impunity 11 The latter is the effect of Respondent's proposed "hot cargo" clause. Accordingly, we hold that where, as in this case, a limitation upon contracting at a construction site is intertwined with a provision permitting such self-help as striking or otherwise refusing to perform services, e.g., by permitting employees to refrain from working without suffering disciplinary action, in the event of a breach of the "hot cargo" clause, the clause exceeds the prescribed bounds of the first proviso to Section 8 (e) and is therefore unlawful. Conclusion We have found that the disputed clause is unlawful under Section 8 (e) of the Act. Accordingly, we find that by insisting upon the inclu- sion in the contract of this unlawful provision Respondent violated Section 8(b) (3) of the Act.12 We further find that by picketing with an object of forcing the Association to enter into an agreement which contained a clause unlawful under Section 8(e), Respondent violated Section 8 (b) (4) (i) and (ii) (A) of the Act 13 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES The activities of the Respondent set forth above have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and take cer- tain affirmative action designed to effectuate the purposes of the Act. 11 See footnote 4, supra. 12 Southern California District Council of Hod Carriers and Laborers and Gunite Workers Local No. 845, etc. ( Swimming Pool Gunite Contractors Group ), 144 NLRB 978, 984; Amalgamated Lithographers of America (Ind.) and Local No. 17, etc. (The Employing Lithographers, etc.), 130 NLRB 985, 991, enfd . 309 F. 2d 21 ( C.A. 9), cert. denied 372 U.S. 943. 12 General Counsel contended that even if the disputed clause were lawful under Sec- tion 8(e), picketing to secure its adoption was unlawful under the decision in Construc- tion, Production it Maintenance Laborers Union Local 383, AFL-CIO (Colson and Stevens Construction Co., Inc.), 137 NLRB 1650. The Board has recently reversed Colson and Stevens and now holds that picketing to obtain a contract clause which is within the construction industry proviso to Section 8 ( e) does not violate Section 8 (b)(4)(A). Northeastern Indiana Building and Construction Trades Council (Centlivre Village Apart- ments), 148 NLRB 854. Accordingly, if we were to find that the disputed clause were lawful under Section 8 ( e), we would not find that the picketing to secure its acceptance was a violation of Section 8(b) (4) (A). MUSKEGON BRICKLAYERS UNION NO. 5, ETC. 367 As set forth above, the parties agree that but for Respondent's insist- ence on the provision here found unlawful, agreement would have been reached on or about April 18. Consequently, as it appears that it was Respondent's unlawful conduct which alone barred final agreement, we shall order that the Respondent upon request by the Association reduce to writing and sign the agreement reached on or before April 18, 1964, the agreement to be effective to at least its initial termi- nation date or if that has passed and there is provision for automatic renewal until the next renewal date following execution. We shall, as an alternative, in the event the Association does not seek execution of the agreement, order that the Respondent, upon the Association's request, bargain with the Association as the exclusive bargaining repre- sentative of employees in the appropriate unit. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the following: CONOLusIONs OF LAW 1. The Greater Muskegon General Contractors Association is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Muskegon Bricklayers Union #5, Bricklayers, Masons and Plasterers International Union of America (AFL-CIO), is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees employed by employer-members of the Greater Muskegon General Contractors Association constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act: All employees engaged in bricklaying, stone masonry, marble masonry, artificial masonry, and plastering, caulking, and cleaning of brick, excluding all other employees and supervisors as defined in the Act. 4. At all times material, the Respondent has been the representative for purposes of collective bargaining within the meaning of Section 9 (a) of the Act of the employees in the appropriate unit. 5. By conditioning the signing of a collective-bargaining agreement upon acceptance in such agreement by the Association of terms and con- ditions, which are not mandatory subjects of collective bargaining, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (3) of the Act. 6. By inducing and encouraging through picketing employees of Association members to refuse to perform services in the course of their employment and by threatening, coercing, and restraining the Association by picketing its employer-members at construction job- sites with the object of forcing the Association to enter into an agree- ment prohibited by Section 8(e) of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(b) (4) (i) and (ii) (A) of the Act. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. The aforesaid unfair labor practices are unfair labor practices affecting 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 Relations Board hereby orders that the Respondent, Muskegon Bricklayers Union #5 ( Bricklayers , Masons and Plasterers International Union of America (AFL-CIO ), its offi- cers, agents, and representatives , shall : 1. Cease and desist from : (a) Inducing or encouraging the employees of Association mem- bers, or any other employer engaged in commerce or in an industry affecting commerce , to refuse to perform services in the course of their employment and threatening , coercing , or restraining the Association, its employer-members, or any other person engaged in commerce as defined in the Act or in an industry affecting such commerce , where an object thereof is forcing or requiring the Association to enter into an agreement which is prohibited by Section 8 (e) of the Act. (b) Refusing to bargain by conditioning its making of a collective- bargaining agreement with the Greater Muskegon General Contrac- tors Association upon acceptance by the Association of terms and con- ditions which are unlawful. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Notify the Association that it will not insist upon inclusion in any collective -bargaining contract of any unlawful provisions. (b) Upon request by the Association , reduce to writing and sign, as provided in the section of the Decision entitled "The Remedy," the collective-bargaining agreement reached between it and the Associa- tion on or about April 18,1964, without insisting as a precondition that the contract include provisions that are unlawful or alternatively, at the Association's option and upon its request, bargain collectively with the Association and incorporate any agreement reached in a signed contract. (c) Post at its business offices and meeting halls in Muskegon, Michigan , copies of the attached notice marked "Appendix." 14 Copies of said notice, to be furnished by the Regional Director for Region 7, shall, after being signed by Respondent 's authorized representative, be posted by Respondent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. 14 In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words, "a Decision and Order," the words "a Decree of the United States Court of Appeals , Enforcing an Order." MUSKEGON BRICKLAYERS UNION NO. 5, ETC. 369 Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (d) Sign and mail sufficient copies of said notice to the aforesaid Regional Director for forwarding to the Association for information, and, if it is willing, for posting by it at all locations where notices to its member employers' employees in the appropriate unit are customarily posted. (e) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. MEMBER FANNING, dissenting : I dissent from my colleagues' conclusion that Respondent violated Section 8(b) (4) (A) and 8(b) (3) of the Act by striking to compel the Association to agree to the so-called area standards clause in issue in this case. In striking to obtain the "area standards" clause, Respondent sought contractual recognition of the right of bricklayers employed by the general contractor members of the Association to refuse to work on construction projects where craft work, whether of their own craft or of other crafts, was being performed by employees who were receiv- ing "substandard" wages and working conditions, without being sub- jected to discipline for such refusals to work. Read literally, the clause 15 contains no restrictions upon the general contractor's right to subcontract work to any subcontractor he chooses. However, no general contractor would readily engage a "substandard" subcontractor whose presence on the construction site might well bring the work of the project, which he has contracted to complete, to a halt because of his own employees' refusal to work with the employees of the subcontractor. Accordingly, it is clear that Association accept- ance of the clause would have operated as an implied agreement that its general contractor members would not subcontract craft work to "substandard" subcontractors.16 As the clause would, as a practical is The clause is set forth in full in the majority opinion '° As a practical matter, the clause would also operate to prevent the members of the Association from accepting either general contracts or subcontracts on projects where subcontractors and/or other general contractors who did not provide union specified standards of employment were engaged Curiously, while the clause would operate to prevent members of the Association from subcontracting part of the work of their brick- layers, it would not seem to prevent the subcontracting of all such work, for in such cir- cumstances, the displacement of the general contractor 's employees by a subcontractor's em- ployees would effectively nullify the economic restraint implicit in the provisions of the clause. It can be seen from this that the clause is not primarily concerned with pro- tecting and preserving unit work of the employees covered by the contract. Accordingly, even though the clause is not unrelated to fixing working conditions of employees represented by Respondent, I reject Respondent's contention that the clause is entirely primary in character . See discussion of the difference between primary and secondary clauses in Orange Belt District Council of Painters No. 48, AFL-CIO, etc (Calhoun Drywall Company ) v. N.L.R.B., 328 F. 2d 534 , 537 (C.A.D C) ( 1964). 7 89-730-6 6-v of 152-25 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matter, cause the general contractor to cease and refrain from doing business with such subcontractors, I find that it is within the scope of Section 8 (e) of the Act.17 However, as the clause constitutes an implied agreement relating to the contracting and subcontracting of work to be performed at construction sites,18 I find that it falls within the terms of the building and construction industry exemption to Section 8(e). The majority opinion does not really dispute the above reasoning, but nevertheless holds that the clause in issue herein is not within the terms of the construction industry proviso to Section 8 (e). The major- ity's reasoning appears to be that because the clause seeks to permit conduct by employees which, if induced by the Respondent Union, would violate Section 8(b) (4) (B), the clause itself must be viewed as the prohibited inducement, and therefore, a holding that the clause is within the terms of the proviso to Section 8 (e) would legitimize con- duct proscribed by Section 8(b) (4) (B). This construction of Section 8(b) (4) (B) and of the proviso completely ignores the development of the law both before and after the enactment of Section 8(e). Prior to the enactment of Section 8 (e), the law relating to hot cargo and similar clauses had developed to the point that, though such clauses were considered to be lawful, they did not constitute a defense to con- duct which, in their absence, was unlawful under Section 8 (b) (4) (A), now 8 (b) (4) (B). In other words, union attempts to enforce the pro- visions of lawful hot cargo clauses, by strike action, or by any direct appeal to employees to assert their rights under the contract, consti- 17 Compare Board holdings in re secondary picket line and struck-work clauses in Truck Drivers Local Union No. 413, -etc., ( The Patton Warehouse, Inc), 140 NLRB 1475, enfd. as modified 334 F 2d 539 (CAD C.) ; Truck Drivers Local No. 696, etc. (Freeto Construction Co., Inc.), 149 NLRB 23 18 Essex County and Vicinity District Council of Carpenters, etc. (Associated Contrac- tors of Essex County, Inc.) v. N.L R.B , 332 F. 2d 636 (CA. 3) The "area standards" clause involved in the Instant case is very similar to the clause at issue in the Essex County case, except that it has the added provision that the employers involved will not discipline employees who exercise their contractual right to refuse to work tinder the Indicated conditions. This added provision certainly adds support for our inference that employer acceptance of the clause would constitute an implied agreement restrict- ing the employer's right to subcontract onsite work. However , as this added feature does not broaden the definition of the kind of work which must conform to "area stand- ards, " to include oifsite work, It cannot serve, as the majority opinion implies, as the basis for a finding that this clause , unlike the one involved in the Essex County case, does not come within the proviso to Section 8( e). Compare the holding in 'Southern California District Council of Hod Carriers and Laborers and Gunite Workers Local No. 345, [Swimming Pool Gunite Contractors Group], 144 NLRB 978, 983-984, in re article III-B Article III-B Is distinguishable from the instant clause In that it absolved the signatory unions of a breach of contract if the employees covered by the agreement refused to enter a project listed as unfair by the union even where the union's dispute was with employers with whom the signatory contractors had no subcontractual relationship. Accordingly, without necessarily adopting the position taken by the Board In that case, I believe the General Counsel's reliance on that holding is misplaced. MUSKEGON BRICKLAYERS UNION NO. 5, ETC. 371 tuted violations of the so-called secondary boycott provisions of the Act.19 Section 8(e) was enacted to make even the voluntary entering into of such agreements an unfair labor practice, and to render such agree- ments unenforcible and void. The present Section 8(b) (4) (A) was enacted to make it unlawful for a labor organization to force or require an employer to enter into such an agreement. The present Section 8(b) (4) (B) continued the prior provisions and interpretation of 8 (b) (4) (A) and of course made union attempts to enforce such provi- sions by economic means unlawful and did so independently of the provisions of Section 8(e) and 8(b) (4) (A). Congress, however, added a proviso to Section 8 (e) which exempts clauses relating to contracting or subcontracting of work to be done at construction sites in the building and construction industry from the operation of Section 8 (e) and, therefore, also from operation of Section 8(b) (4) (A). Congress clearly indicated,20 however, that by granting this exemption it did not intend to change prior law as to hot cargo clauses in the industry. Accordingly, it is well established that though a union cannot rely upon the lawful character of hot cargo clauses relating to the contracting or subcontracting of work to be per- formed on a construction project as a defense to its use of economic force to enforce their provisions in case of breach by an employer, a union can strike to obtain such a clause 21 In sum, Section 8(b) (4) (B), as indeed do all the 8(b) sections, denominates unfair labor practices on the part of labor organizations. It does not forbid, enjoin, or otherwise make unlawful actions of indi- vidual employees, unless the actions have been induced by a labor organization or unless the individual employee can properly be found to have acted as the agent of the labor organization. Inasmuch as the clause in issue does not grant a contractual right to the Respondent Union to induce employees to refuse to work, but merely protects em- ployees from discharge or other disciplinary action if they do refuse to work when a "substandard" contractor is on the project, it does not, contrary to the majority conclusion, permit conduct proscribed by Sec- tion 8 (b) (4) (B) of the Act. Of course, it may well be that the Union, once it has secured protection of employees from discharge, will feel more free to induce the employees to exercise such right. But the point ro Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL, et al. (Sand Door Plywood Company) v. N L R B, 357 U S. 93 21 House Conference Report on Labor-Management Reporting and Disclosure Act of 1959 House Report 1147, 86th Cong, 1st Se59. pp 39-40 2 'Northeastern Indiana Building and Construction Trades Council (Centlivre Village Apartments ( Calhoun Drywall Company), 148 NLRB 854; Orange Belt District Council of Painters No 48, AFL-CIO, et al , v N L R B., 328 F 2d 540 (C A D C ). 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is that such union inducement is not sanctioned by the contract, and therefore, the contract cannot be said to sanction conduct proscribed by Section 8 (b) (4) (B),22 nor can the mere execution or existence of the clause be viewed as prima facie evidence of prohibited inducement of employees to exercise the right secured by the clause .23 As the clause in issue does relate to contracting and subcontracting "on-site" work in the construction industry, it is exempted from the provisions of Section 8 (e) and 8 (b) (4) (A), and the provisions of 8 (b) (4) (8) afford no basis for a contrary determination .24 Moreover, even assuming the clause should be construed as giving the Respondent Union a right to call a strike, rather than merely giv- ing employees the right to refuse to work, the majority opinion errs in its apparent equation of the right to call a strike with the actual strike itself. It is the actual strike, not the right to call the strike, which is the attempt at enforcement. I, of course, agree that the exist- ence of the clause would not constitute a defense to the application of the provisions of Section 8 (b) (4) (B) to such a strike, but this does not mean that the building and construction industry proviso to Section 8(e) does not apply to such a clause or that Respondent cannot strike to obtain Association acceptance of the clause 25 Indeed, I note that the Board has recently held a clause providing that a union could take "economic means" to force a satisfactory settlement in the event a gen- eral contractor refused to remove a subcontractor under certain pre- scribed conditions to be "within the terms of this exemption." 26 For the foregoing reasons, I would find that the "area standards" clause involved herein is not proscribed by Section 8(e) of the Act. 22 The majority errs in apparently attaching no legal significance to the fact that the clause secures rights of employees rather than rights of the Union to induce employees to act. The distinction, while not affecting the validity of my determination that the clause operates as an Implied restriction on the general contractor's right to subcontract "on-site" work, is of crucial importance in determining whether the conduct permitted by the clause would, if actually engaged in, violate Section 8(b) (4) (B). 2d Sand Door Plywood Company, supra, at page 108 The two clauses considered by the court were as follows- "Workmen shall not be required to handle nonunion products" and "Members of the Union shall not be allowed to handle or haul freight to or from an unfair company. . . " 24 Construction, Production & Maintenance Laborers Union, et al. (Colson and Stevens Construction Co.) v. N.L.R.B., 323 F. 2d 422 (C.A. 9) ; Essex County and Vicinity Dis- trict Council of Carpenters, etc. v. N.L R B., supra; Orange Belt District Council, etc. v. N.L.R.B., supra; Building and Construction Trades Council of San Bernardino and Riverside Counties, et al. (Gordon Fields) v. N L.R B., 328 F 2d 540 (C.A.D.C.). See also Local Union No 48 of Sheet Metal Workers v. Hardy Corp., 332 F. 2d 682 (C.A. 5). See also Centlivre Village Apartments, supra. 25 See Northeastern Indiana Building Trades Council, supra, where the Board dis- missed the 8(b) (4) (A) allegations but found a violation of 8(b) (4) (B), because the respondent was not only seeking to obtain a clause restricting the right of a general contractor to subcontract to employers who did not have a contract with respondent, but also sought removal of an existing and identified nonsignatory subcontractor. Neither that finding nor the Board's Order in the case precluded the respondent from continu- ing to strike for employer agreement to the clause. 28 Southern California District Council of Hod Carriers and Laborers and Gunite Work- ers Local No. 3115 (Swimming Pool Gunite Contractors Group), 144 NLRB 978, 982. (Panel of Chairman McCulloch, Member Brown, and former Member Leedom.) MUSKEGON BRICKLAYERS UNION NO. 5, ETC. 373 Accordingly, I would find that Respondent did not violate Section 8(b) (4) (A) or Section 8(b) (3) by striking to force the Association to agree to the clause. I would therefore dismiss the complaint. APPENDIX NOTICE TO ALL MEMBERS OF MUSKEGON BRICKLAYERS UNION # 5, BRICK- LAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION OF AMERICA (AFL-CIO) Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the purposes of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT induce or encourage employees of Association members, or of any other employer engaged in commerce or in an industry affecting commerce, to refuse to perform services in the course of their employment or threaten, coerce, or restrain by picketing or other means the Greater Muskegon Contractors Asso- ciation, its members-employers, or any other employer where an object thereof is forcing or requiring Greater Muskegon Contrac- tors Association to enter into an agreement which is prohibited by Section 8 (e) of the Act, as amended. WE WILL NOT refuse to bargain collectively with the Association on behalf of their member-employers' employees in the appropri- ate unit by insisting as a precondition to executing a contract that the Association accept as a provision of such contract, a provision which is unlawful. WE WILL upon the Association's request reduce to writing and sign the agreement reached on or about April 18, 1964, or alter- natively, at the Association's option, bargain collectively for employees in the appropriate unit and reduce to writing and sign any agreement reached. The appropriate unit is : All employees of the member-employers of the Association engaged in bricklaying, stone masonry, marble masonry, arti- ficial masonry, and plastering, caulking, and cleaning of brick, excluding all other employees and supervisors, as defined in the Act. MUSKEGON BRICKLAYERS UNION #5, BRICKLAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION OF AMERICA (AFL---CIO), Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Mich- igan, Telephone No. 226-3244, if they have any question concerning this notice or compliance with its provisions. Louisville Cement Company and United Cement, Lime and Gypsum Workers International Union, AFL-CIO and Commit- tee (Plant Interrelations Committee, Plant Grievance Com- mittee, and/or Employee Problem Committee ), Party of Interest. Case No. 25-CA-92021. May 5, 1965 DECISION AND ORDER On February 1, 1965, Trial Examiner C. W. Whittemore issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Exam- iner's Decision and a brief in support thereof. The General Counsel also filed limited exceptions to the Trial Examiner's Decision, and separate briefs in support of his exceptions, in support of the Decision, and in reply to the Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner as modified herein.' 'Although the Trial Examiner recommended that Respondent be ordered to cease and desist from unlawfully interrogating employees as to their own or other employees' union activities , he did not specify the instances of interrogation on which he relied. We find, as the basis for adopting his recommendation , that the questioning by Superintendent Ridenour of Funderok , one of the members of the Committee , as to whether "he knew who was trying to get the union in , or agitating . . ." was interrogation which tends to interfere with, restrain , or coerce employees, in violation of Section 8(a)(1). 152 NLRB No. 32,