Industrial Engineering Co., Inc.

INDUSTRIAL ENGINEERING CO. 77 Industrial Engineering Co., Inc . and Local Union No. 101, United Brotherhood of Carpenters and Join- ers of America , AFL-CIO. Case 5-CA-3894 October 4, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On March 15, 1968, Trial Examiner Owsley Vose issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in certain unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel, the Charging Party, and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs, and the Respondent filed an answering brief. 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. 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 and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. I We do not adopt the Trial Examiner's comments and argument based on Section 8(e) and the policy considerations underlying that section It is sufficient merely to point out that subcontracting provisions are common in the building and construction industry, and are specifically made lawful by virtue of Section 8(e) of the Act. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE OWSLEY VOSE, Trial Examiner This case, heard at Balti- more, Maryland, on December 18 and 19, 1967, pursuant to a charge filed on the preceding September 12 and a complaint issued on October 25, presents the question whether under all the circumstances of this case, including particularly an Interim Agreement which the Respondent entered into with the Charging Party (hereinafter called the Union) on March 5, 1967, the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by refusing to sign the contract subsequently negotiated between the Union and the Baltimore Builders Chapter of the Associated General Contractors of America, Inc. (hereinafter called the A.G Q. Upon the entire record in the case,` my consideration of the briefs filed by the General Counsel and the Respondent, and from my observation of the witnesses, I make the following FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Maryland corporation having its princi- pal office in Baltimore, Maryland, is a general contractor in the building and construction industry. During the year preceding the issuance of the complaint the Respondent purchased from out-of-State sources and had shipped to various building sites in Maryland more than $50,000 worth of building materials Upon these facts, I find, as the Respondent admits, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union, Local Union No. 101, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The History of the Respondent's Relations With the Union The Respondent was incorporated in 1950. Its president, Walter Davis , had been a member of the Union from 1941 up until the time the business was incorporated , and before that was a member of locals of the Carpenters in Richmond and Petersburg , Virginia. From the inception of the Respondent's business it has been its policy to employ union members whenever they are available . During all the years that the Respondent has been in business , it has either had written contracts with the Union covoring its journeymen carpenters and apprentices, or has strictly followed the terms of the collective -bargaining contract negotiated by the Union and the A.G.C. The Respondent started out with small-scale operations but its business has grown and it now acts as general contractor on construction jobs that range in cost from $50,000 to $1,300,000. The latter figure is the contract figure on the largest job handled by the Respondent. According to President Davis, with the Respondent 's operations within this range, it is among the smaller of the middle -sized general contractors Ninety percent of the Respondent 's competitors in bidding on contracts within this range , so Davis testified , are nonunion, i.e., they may or may not have union employees on their own payroll and they use nonunion subcontractors in whole or in part. As a result the Respondent has found it necessary in selecting subcontractors to chose the qualified subcontractor I Both the Respondent and the General Counsel have filed motions to correct the transcript of record in this case. No opposition having been filed thereto and the corrections appearing proper, both motions to correct transcript are hereby granted 173 NLRB No. 18 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD submitting the lowest bid. Frequently it turns out that such subcontractors are nonunion In 1955 the Union took the lead in a movement sponsored by an employer's association and various building trades locals to unionize the building and construction industry in the Baltimore area. In an effort to achieve this goal, the Union asked the Respondent, among others to use union subcontrac- tors 2 exclusively, and assured the Respondent that it and other building trades locals would see to it that the Respondent did not suffer from nonunion competition The Respondent agreed to go along with this arrangement. However, after submitting bids figured on using union subcontractors the Respondent found itself receiving very few contract awards In February 1956 the Respondent complained to the employers association that the local unions were not living up to their part of the arrangement, asserting that members of the Union and other building trades locals were working for nonunion contractors with whom he was in competition Notwithstand- ing this, the Respondent continued to use union subcontrac- tors exclusively until some time in 1957. As a result of adhering to this policy, the Respondent lost money in the latter part of 1955 and all of 1956 and 1957. In 1957 the Respondent returned to its former policy of awarding subcon- tracts to the lowest reliable bidder, regardless of whether the subcontractor was a union subcontractor or not From 1957 on the Respondent has continued to operate under this policy. However, for its own operations the Respondent has continued to employ union members exclusively Early in 1964, the A.G C. and the Baltimore Building and Construction Trades Council (hereinafter called the Council) reached an accord on a 3-year trade agreement which became effective on April 1, 1964. Thereafter, the Respondent and the Union signed an agreement embodying the terms agreed upon in the A.G.C.-Council negotiations. This agreement was for a 3-year term and was to expire on March 31, 1967 This agreement, like its predecessors to which the Respondent was a party, did not contain any clause relating to subcontracting. All these contracts covered only wages, health and welfare and other fringe benefits, and the year-to-year changes made in these contracts had affected only wages and fringe benefits, according to Davis, the Respondent's president. In the late fall of 1964 the Union and other building trades locals worked out in conjunction with the Council, a supple- mental agreement with the A.G.C. and various participating specialty trade associations whereby the employer trade associations, and also certain individual employers not mem- bers of any association, agreed to use only union subcontrac- tors at certain jobsites which were listed in an appendix to the agreement. This agreement is referred to as the Pinpointing Agreement. The Respondent was never asked to sign this agreement. However, President Davis, was aware of the existence of the agreement and its purpose, to extend the use of union subcontractors. In June of 1966 the A.G.C. and the Council, which was acting on behalf of itself and its affiliated local unions, including the Union, were negotiating for a 3-year contract which Was to supercede the Pinpointing Agreement and was further to extend the obligation of general contractors to use union subcontractors for work to be done at the jobsites. This agreement provided, during the first year of its term, for the use of union subcontractors exclusively on all jobs on which the contract bid was in excess of $1,500,000, and during the remainder of the contract term for the use of union subcon- tractors exclusively on all jobs regardless of the dollar value of the contract, with the exception of schools and churches as to which the $1,500,000 figure was retained. This agreement was signed by the A G C. and the Council on July 6, 1966, and, as stated above, was to run for 3 years and purported to bind not only the Council but also its affiliated local unions, of which the Union was one. Like its predecessor, the Pinpointing Agreement, the agreement of July 6, 1966, was devoted entirely to the subcontracting of work to be performed at the jobsites and related matters. While negotiations for the subcontracting agreement of July 6, 1966, were under way late in June, Guido Iozzi, the president of the Council, asked Davis, the president of the Respondent, to sign the agreement. Davis refused. On July 26, 1966, the Council picketed two of the Respondent's jobs, one at Friendship Airport and the other at the Keystone Electric Co , Inc. The next day the Respondent filed a charge with the Board alleging that the Council's action violated Section 8(b)(4)(i) and (n)(B) of the Act A complaint was issued by the General Counsel in Case 5-CC-368 and eventually the Council consented to the issuance of a Board order and a United States Court of Appeals enforcing decree prohibiting violations of Section 8(b)(4)(i)(B) of the Act. The latter part of August 1966, Posey, a business agent of the Union, also asked Davis to sign the July 6, 1966, subcontracting agreement. Posey pointed out that lozzi, the president of the Council, was a nice fellow and, after mentioning that the Union was affiliated with the Council, urged the Respondent to "go along and sign." Davis refused, saying as follows, as he testified I told him that I couldn't operate under the all union subcontractor and I explained it to him, that I had tried once before and it had almost taken me broke and I was lucky to survive it It would just put me out of business if I tried to do so. Posey asked Davis two or three times thereafter to sign the Council subcontracting agreement, but Davis refused, declaring on one occasion that he "had continuously been getting pressure from the Trades Council from here and in Washington to sign this subcontractor's agreement but that [he] could not have survived under this " B. Events Involved in This Case During the week of February 20, 1967, Business Agent Posey approached President Davis at the construction site of the Cherry Hill School on which the Respondent was the general contractor. Posey states that the A.G.C., the Council, and the Union were engaged in negotiations for a renewal of their collective bargaining contract but that agreement had not yet been reached. As stated above, at this time the Respondent and the Union were parties to the 1964 trade agreement, which was due to expire March 31, 1967. At the time of this conversation in the latter part of February, Posey demanded that Davis send him a letter agreeing to pay the wage and fringe benefits ultimately agreed upon by the Union and the 2 This term is used throughout this decision to refer to contractors whose employees are represented for collective bargain- ing purposes by the Union INDUSTRIAL ENGINEERING CO. 79 A.G.C. retroactive to the expiration of the preceding contract. The Union then mailed to the Respondent a proposed Interim Agreement together with a form covering letter which stated that union members would go out on strike on April 1, 1967, if agreement were not reached on a new 3-year contract with the A G.C., and that employers could protect themselves against a strike by signing the Interim Agreement. The Interim Agreement provided, among other things, that the employer would "sign and adopt the collective bargaining agreement eventually consummated by the Union and the A.G.C." and that the wages and fringe benefits therein provided would be paid by the employer "retroactively to April 1, 1967.s3 Posey spcke to Davis several times in the last part of February and the early part of March about signing the Interim Agreement On the last occasion Davis asked why he had to sign an agreement since in the past he had always signed the same agreement as was signed between the A G.C. and the Union or paid the benefits provided therein retroactive to the effective date without signing an agreement. Posey said that this time Mr. Johns, the president of the Union, had decided that all contractors would have to sign an interim agreement and that any contractor which did not sign the agreement would have its jobs picketed. This time Davis signed the Interim Agree- ment No agreement was reached between the A.G.C and the Union by April 1, and the Union picketed the jobs of employers who had not signed the Interim Agreement. The Respondent's jobs were not picketed at this time. On April 19, 1967, the A.G.C., the Council and the Union signed a new 3-year trade agreement which was made retroactive to April 1, 1967. Included in the contract was Article XVII, which covers "Contracting and Sub-contracting." In this article, in words almost identical with those contained in the July 6, 1966 subcontracting agreement between the A G.C., the Council, and its affiliated local unions, the parties adopted the subcontracting provisions of the July 6, 1966, agreement, except that for the period commencing on July 1, 1967, the applicability of the subcontracting provision was limited to jobs on which the general contractors' contract figure exceeded $500,000. (In the July 6, 1966, A.G C - Council agreement the subcontracting provisions for this period applied to all jobs "without regard to the dollar amount of the contract ") In Article XVII, general contractors whose contracts were in excess of the dollar limitations stated above bound themselves "with respect to work to be done at all sites of construction" not to sublet, assign or contract out any work which is of the type normally performed under the jurisdiction of the various local trades unions which at the date of the subletting, assigning or contracting out of the work are affiliated with . the Council, to any person, firm corpora- tion, contractor, employer or association which does not have in effect a signed collective bargaining agreement with a local trade union affiliated with said Council which represents the employees engaged in the performance of such work. On July 26, 1967, the A.G.C. and the Council entered into an Amendment Agreement which revised Articles III and IV of the July 6, 1966, A.G.C -Council agreement to bring them into conformity with the corresponding articles of the 3-year trade agreement entered into by the A G.C and the Council on April 19, 1967. This agreement named the employer-members of the A.G C who were covered by the agreement and recited that the Council was acting "on behalf of itself and its affiliated local unions." In April, after the execution of the new 3-year trade agreement between the A G.C., the Council, and the Union, the Union sent the Respondent a copy thereof naming the Respondent as a party of the agreement, and requested that the Respondent sign it. Later in April, Business Agent Posey inquired of President Davis if he had received a copy of the agreement. Davis replied that he had, and to quote Davis, .. I said that there were things in there that I have been fighting all these years and I just can't live with and I just can't sign .. . On September 6, 1967, Benjamin Catterton, the president of the Union, called President Davis and asked him to sign the new 3-year trade agreement Davis refused, saying that he could not accept the subcontracting clause, but offered to call Catterton back on the following Friday, September 8, after consulting with his son, an official of the Respondent, and also his attorney. Davis called Catterton back on Friday and told 3 This full text of the Interim Agreement is as follows INTERIM A GREEMENT THIS AGREEMENT is made and entered into by and between hereinafter referred to as the Contractor, and Local Union No 101 of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, hereinafter referred to as the Union. WHEREAS, the collective bargaining agreement that exists between the Union and The Baltimore Builders Chapter Of The Associated General Contractors Of America, Inc., hereinafter re- ferred to as the A G.C., will terminate on March 31 , 1967, and WHEREAS, the Union and the A.G.C. are negotiating in an effort to reach an agreement on a new collective bargaining agreement but no agreement has yet been reached, and WHEREAS, the collective bargaining agreement between the Union and the A G.C traditionally sets an area pattern for those phases of the construction industry in which the Contractor and Union are engaged, and WHEREAS, in the past, the Contractor has accepted and adopted the collective bargaining agreement negotiated between the A G C. ,and the Union as the collective bargaining agreement between the Contractor and the Union. THEREFORE, in the light of the foregoing and in consideration of the Union continuing to furnish qualified journeymen and apprentices to the Contractor and not taking strike action against the Contractor notwithstanding any strike action the Union may take against the A G C., the parties agree as follows I The Contractor agrees to pay the existing scale of wages and existing fringe benefits, and observe all other terms and conditions in the collective bargaining agreement in effect between the Contractor and the Union at the present time, until the consummation of a new agreement between the Union and the A G C 2 Upon the consummation of said new agreement between the Union and the A G.C , the Contractor agrees to pay the scale of wages, fringe benefits and observe all other conditions of employment established in said new agreement for the duration of that agreement Said wages, fringe benefits and other conditions of employment provided in said new agreement shall be paid and provided by the Contractor retroactively to April 1, 1967, that is, the increase of the new scale of wages and fringe benefits over the old scale shall be paid by the Contractor to his employees for the work performed in said interim period so that all work performed on and after April 1, 1967, shall be eventually paid for at the new scale of wages and fringe benefits The same shall be true of all other conditions of employment which are capable of being applied retroactively. 3. The Contractor will sign and adopt the collective bargain- ing agreement eventually consummated by the Union and the A.G C. when the Union presents it to the Contractor for signing 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him that he had consulted his attorney and that he could not sign the agreement because of Article XVII , the subcontracting provision. On the following Monday the Union commenced picketing at least one of the Respondent's jobs. C. The Contentions of the Parties, Conclusions The General Counsel urges that since the Respondent signed the Intenm Agreement, it was obliged, by virtue of the undertakings therein contained, to sign the agreement which was reached by the A G.C. and the Union on April 19, 1967. Its refusal to do so, the General Counsel contends, constitute a refusal to bargain collectively in good faith with the Union, in violation of Section 8(a)(5) and (1) of the Act. The General Counsel relies mainly on that portion of Section 8(d) of the Act which, in defining the scope of the duty to bargain collectively in good faith, includes as one of the obligations of the parties "the execution of a written contract incorporating any agreement reached if requested by either party." While recognizing that other forums have jurisdiction to pass upon the scope and extent of the contractual obligations flowing from the Respondent's execution of the Interim Agreement, the General Counsel contends that the Respondent's conduct is of such a character as to warrant the Board in asserting jurisdiction and issuing a remedial order requiring the Respon- dent to sign and honor the agreement reached by the Union and the A.G.C. on April 19, 1967. The Respondent, by its president, asserts its willingness to sign the 1967 A.G.C.-Union trade agreement, if only Article XVII, the subcontracting clause, is eliminated, and argues that construing the Interim Agreement as a whole it is a reasonable conclusion, that the parties thereto did not contemplate including a provision binding the Respondent to use union subcontractors exclusively In support of this argument the Respondent cites the fact that the first two clauses of the Interim Agreement involve primarily "wages and fringe bene- fits" which affect the compensation of the Respondent's carpenters and apprentices-paragraph 1 obliging the Respon- dent to continue the existing scale of wages and fringe benefits pending the execution of the new agreement, and paragraph 2 binding the Respondent to pay the wages, fringe and other benefits agreed upon in the new agreement "retroactively to April 1, 1967," the expiration date of the 1964-1967 agreement. The Respondent also notes the fact that the first, third, and fourth "Whereas" clauses refer to the past practice of the parties in adopting A.G.C.-Union trade agreements and to the "traditional" role of A.G.C.-Union agreements in setting an area pattern. The Respondent argues from this that the parties contemplated the negotiation of an agreement between the A.G.C. and the Union "of the same nature and quality as the agreements negotiated between them in the past and adopted in the past" by the Respondent The Respondent also contends, in view of the background of its relations with the Union and its repeated refusals of requests to assume subcontracting obligations of the kind 4 During one or the other of these conversations with Catterton, Davis brought up the matter of the failure of his carpenters and apprentices to sign dues checkoff authorizations , as required by the agreement , as a consequence of which he was unable to check off the union dues of one cent per hour worked , in accordance with Article XX of the contract. provided in Article XVII, that to find that the Respondent's refusal to sign the 1967 trade agreement constitutes a refusal to bargain collectively in good faith would be "a subversion of the collective bargaining process and a disregard of the real purposes of Section 8(a)(5) " The Respondent makes the further argument that under the ordinary principles of contract law the Interim Agreement is not enforceable against it because of its mistake of fact-the fact that a subcontracting clause was or would be a subject of discussion in the 1967 negotiations-which, if known to the Respondent, would have vitally affected its decision to enter into the Interim Agreement. In view of the Respondent's repeated refusals of requests to sign subcontracting clauses like that contained in Article XVII, so the argument goes, the Union must have been aware of the Respondent's mistake of fact, and in these circumstances the Union's nondisclosure is not privileged, and renders the Interim Agreement voidable In support of this argument the Respondent cites Restatement of the Law, Contracts, American Law Institute, Sections 472(b) and (e), 476(1), 479, and 505 s Consideration of the foregoing contentions requires a brief summary of certain undisputed background facts The Respon- dent has bargained collectively with the Union as the statutory bargaining representative of its carpenters and apprentices since the early 1950's. Throughout the years the Respondent has either had contracts with the Union covering its carpenters and apprentices or has strictly adhered to the terms of the contracts negotiated between the A.G.C and the Union The Respondent has made payments covering its carpenters and apprentices into the Union's Health and Welfare Fund since its inception in 1956. In 1955, the Respondent, at the request of the Union, adopted the policy of using union subcontractors exclusively and continued this policy well into 1957. However, the Respondent found itself losing so much money as a result of following this policy that it abandoned the policy in 1957 There is no suggestion in this record that the Respondent in its many years of dealing with the Union has not conducted its labor relations strictly in accordance with the mandate of the statute Up until the signing of the Interim Agreement, none of the trade agreements negotiated between the Union and the A.G.C. had contained any provision regarding subcontracting In late 1964 the Union and other locals affiliated with the Council requested contractors to sign a side agreement called the Pinpointing Agreement, in which they agreed to limit subcontracting on certain jobs to union subcontractors. In June and July 1966, the Council, acting on behalf of itself and the Union, among others, requested contractors to sign a new supplemental agreement further limiting subcontracting. While many general contractors signed, the Respondent refused. Late in July the Council picketed two construction sites on which the Respondent was the general contractor On several occasions in August 1966 Business Agent Posey of the Union urged Davis, the Respondent's president, to sign the July 6, 1966, subcontracting agreement but Davis refused, saying that it would put him out of business. This was the situation when Business Agent Posey ap- proached President Davis in late February or early March 1967 5 The Respondent also makes other technical arguments based upon the nature of the Union's demand for bargaining and the alleged inclusion in the appropriate unit of supervisors . In view of my ultimate conclusion herein it is unnecessary for me to reach these contentions. INDUSTRIAL ENGINEERING CO. and threatened to picket the Respondent's jobs unless Davis signed the Interim Agreement. Posey said nothing about a subcontracting clause being under discussion in the negotia- tions. The subcontracting provisions of the July 6, 1966, agreement between the Council and the employer signatories thereto were then in effect and still had more than 2 years to run As indicated above subcontracting clauses had never been included in past 3-year trade agreements between the A.G.C. and the Union, which the Respondent had signed or adopted in the past. The basic question before me in whether in these circum- stances the Board should step in and require the Respondent to agree to a contract provision obliging it to limit its subcontracting to union subcontractors, and thereafter police the Respondent's compliance with this provision. For this is what the General Counsel asks in this case-that the Respon- dent "sign and honor the collective-bargaining agreement negotiated between the A G.C. and the Union covering the period from April 1, 1967, through March 31, 1970." In my opinion, the Board should stay its hand in this case. While the General Counsel regards that portion of Section 8(d) of the Act requiring the "execution of a written contract incorporating any agreement reached" as compelling a finding of a refusal to bargain in this case, I do not regard it as necessarily being applicable to the instant situation. For this provision in my opinion contemplates a consciously arrived at understanding and a refusal thereafter to reduce it to writing. That plainly is not the situation here. President Davis obviously had no idea that the A.G.C. and the Union, contrary to past practice, would seek to incorporate in the regular 3-year trade agreement the subcontracting provisions which were already in effect by virtue of the July 6, 1966, supplemental agreement While Davis may not have exercised the best judgment in signing an agreement which was susceptible of being construed as a wide-open commitment io sign whatever agreement was reached between the Union and the A G.C., there can be no doubt that Davis in signing the Interim Agreement did not contemplate agreeing to limiting subcontracting to union subcontractors. The Union knew that Davis had repeatedly refused to agree to such a subcontracting provision previously, and had refused even when faced with the threat of picketing of the Respondent's jobs by the Council, a threat which the Council actually carried out. Thus the Union had amply basis for anticipating that Davis would not have signed the Interim Agreement if the possibility of including a subcontracting clause in the final agreement had been broached at the time the Interim Agreement was signed Plainly there was no meeting of the minds between the Union and the Respondent on the subcontracting issue at the time the Interim Agreement was signed. The Union's effort to use the Interim Agreement which Davis had unwittingly signed as the means of obtaining the one provision which the Union knew the Respondent had steadfastly refused to grant to it in collective bargaining in the past hardly reflects the good faith 81 which the Act requires of parties to the collective bargaining process It should be noted that we are not concerned here with a recalcitrant employer who is acting in bad faith but one who through the years has bargained in good faith with the Union as the exclusive representative of its carpenters and apprentices, and which stands ready today to fulfill the commitment which it thought it was making when it signed the Interim Agreement, that is by signing the A.G.C -Union agreement, omitting only Article XVII, the provision limiting subcontracting to union subcontractors. The Respondent points out, and I think it is worthy of note, that a subcontracting provision such as is contained in Article XVII is inconsistent with the scheme of the Act as a whole and would be illegal under Section 8(e) of the Act in any business or industry other than the construction industry and the apparel and clothing industry. Such provisions are lawful in collective bargaining agreements in these industries only by virtue of special exceptions written into Section 8(e) of the Act. The fact that the only provision involved herein is one which cannot be reconciled with the basic policy of the Act of assuring to employees a free choice of representatives, in my opinion, merits consideration in deciding whether the Board should make available its processes to enable the Union to obtain and enforce contract provision which it had theretofore been unable to secure through genuine face-to-face good-faith collective bargaining. I have considered the numerous decisions of the Board and the Courts which have been cited to me by the parties, but I find none of them controlling on the unusual facts of this case. As indicated above, other tribunals are available in which the Union can obtain a legal determination of the extent of the Respondent's obligations under the Interim Agreement Under all the circumstances I conclude that the Board should not permit its processes to be utilized by the Union to enable it to saddle the Respondent with a contract provision limiting its choice of subcontractors in a way which the Respondent sincerely believes will put it out of business. To do so, in my opinion, would subvert rather than effectuate the policies of the Act. Compare J & H Food, Inc., 139 NLRB 1398, and Indiana Limestone Company, Inc., 136 NLRB 697, which are cited with approval in Retail Clerks Union No. 1550 v. N.L R.B., 330 F.2d 210 (C.A.D.C.), cert. denied 379 U.S. 828. See also Genesco, Inc. v. Joint Council 13, United Shoe Workers of America, AFL-CIO, 341 F.2d 482,488-489 (C.A. 2) Accordingly, my Recommended Order will direct the dismissal of the complaint in its entirety. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following RECOMMENDED ORDER The complaint herein is hereby dismissed in its entirety