Plumbers, Local 48

PLUMBERS , LOCAL 48 415 United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 48, AFL-CIO and Me- chanical Contractors Association of Maryland, Inc. United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 438, AFL-CIO and Me- chanical Contractors Association of Maryland, Inc. Cases 5-CE-25 and 5-CE-26 May 19, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On December 8, 1970, Trial Examiner Anne F. Schlezinger issued her Decision in the above-entitled proceeding, finding that the Respondents had not en- gaged in the unfair labor practices alleged in the com- plaint and recommending that the complaint be dis- missed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and Charging Party filed exceptions to the Trial Ex- aminer's Decision and supporting briefs, and Respond- ents filed an answering brief to the exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this proceeding to a three-member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and briefs, and the entire record in the proceeding and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the com- plaint herein be, and it hereby is, dismissed in its en- tirety. ' The Charging Party's request for oral argument is denied, as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties Maryland), on August 20, 1970, issued an order consolidat- ing cases, complaint, and notice of hearing thereon. The com- plaint alleges that United Association of Journeymen & Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 48, AFL-CIO, and United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 438, AFL-CIO, referred to herein collectively as the Respondents, had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Sections 8(e) and 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charges, order consolidating cases, complaint, and notice of hearing were duly served on the Respondents and the Charging Party. With respect to the unfair labor practices, the complaint alleges, in substance, that the Respondents executed collec- tive-bargining agreements with the Charging Party contain- ing identical no-subcontracting clauses which exceed the scope of such clauses permitted by the building and construc- tion industry proviso to Section 8(e) of the Act. The Respond- ents' answer, duly filed, admits some of the factual allegations of the complaint, but denies the commission of any unfair labor practices and raises certain affirmative defenses. On October 2, 1970, all the parties to this porceeding en- tered into a stipulation in which they waived a hearing before a Trial Examiner; agreed that the entire record in this pro- ceeding shall consist of the stipulation, the charges filed herein, the order consolidating cases, the complaint, the no- tice of hearing, and the answer of the Respondents; and in- dicated a desire to file briefs. On November 9, the General Counsel, the Charging Party, and the Respondents filed briefs which have been fully considered. Upon the basis of the stipulation, the briefs, and the entire record in this proceeding, I make the following: FINDINGS OF FACT I THE EMPLOYERS INVOLVED The Charging Party is, and at all times material herein has been, a corporation duly organized under and existing by virtue of the laws of the State of Maryland, which maintains its principal place of business at Timonium, Maryland. The Charging Party is an association of employers in the Met- ropolitan Baltimore area who are engaged in the building and construction industry in the installation of plumbing, heating, air conditioning, and related fixtures and equipment. Said employers maintain their principal places of business in and about Baltimore, Maryland. During the preceding 12 months, a representative period, employer members of the Association, in the course and conduct of their business oper- ations, derived gross revenues in excess of $50,000, and re- ceived in the State of Maryland materials and supplies pur- chased and shipped from points and places outside the State of Maryland valued in excess of $50,000 The parties stipu- lated, and I find, that the employer members of the Associa- tion are, and at all times material herein have been, engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and are employers in the construction industry within the meaning of Section 8(e) of the Act. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER , Trial Examiner : Upon charges duly filed on March 28 , 1970, by Mechanical Contractors Association of Maryland, Inc., herein called the Charging Party, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 5 (Baltimore, 190 NLRB No. 77 II THE LABOR ORGANIZATIONS The parties stipulated, and I find, that the Respondents, and each of them, are labor organizations within the meaning of Section 2(5) of the Act, and are labor organizations in the construction industry within the meaning of Section 8(e) of the Act. The Respondents, and each of them, are the duly designated collective-bargaining representatives of the em- ployees of the employer members of the Association Said 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees are employed by said employers in the building and construction industry in the installation of plumbing, heating, air conditioning, and related fixtures and equipment. III THE ALLEGED UNFAIR LABOR PRACTICES The facts as stipulated show that on or about July 29, 1970, the Association and both Respondents, respectively, executed collective-bargaining agreements containing an identical arti- cle 28 entitled "Contracting and Subcontracting," which is attached as an "Appendix" hereto. Article 28 provides that the employers will not seek or obtain work as a general con- tractor or subcontractor on any site of construction' within the geographical area over which the Building and Construc- tion Trades Council, AFL-CIO, referred to herein as the Council, has jurisdiction, on which site work is to be per- formed which is normally performed under the jurisdiction of local unions affiliated with the Council, unless those per- forming work on the site have signed collective-bargaining agreements with the local union, affiliated with the Council, claiming jurisdiction over said work. The article also pro- vides, in section 2(c) and 3(d), that the Association employers in certain circumstances would not subcontract any of said work to any employer who had not agreed to contract restric- tions similar to those in article 28 even though such other employer has signed a collective-bargaining agreement with the local union having jurisdiction over said work. The complaint alleges that, by executing these agreements, the Charging Party "has agreed to cease and refrain from handling, using, selling, transporting or otherwise dealing in the products of other employers, and has agreed to cease doing business with other persons," and the Respondents have engaged in unfair labor practices within the meaning of Section 8(e) of the Act.' Section 8(e) of the Act makes it an unfair labor practice for a labor organization and an employer to enter into an agree- ment whereby the employer ceases or refrains or agrees to cease or refrain from doing business with any other person.' A proviso to Section 8(e), however, exempts from the pro- scription thereof agreements between labor organizations and employers in the construction industry which relate to the contracting or subcontracting of work to be done at "the site of the construction."4 The General Counsel and the Charging Party contend that the reference in the 8(e) construction industry proviso to "the site of the construction" indicates that the protection of the proviso extends only to contracting and subcontracting agreements covering work at a particular jobsite They urge, ' Exempted from the coverage of these clauses are construction sites where the total amount of the contract or contracts is less than $750,000, private homes and apartments, school construction where the total amount of the contracts is less than $3,000,000, and alteration, repair, or mainte- nance of existing buildings where the employer is working directly for the owner rather than through a general contractor or other third party ' The charges filed herein allege that sec 2(c) and 3(d) of article 28 violate Sec 8(e) of the Act To the extent material herein, Sec 8(e) provides It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling or dealing in any of the products of any other employer or to cease doing business with any other person. Sec 8(e) further provides, in pertinent part, that nothing in this subsection (e) shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting or repair of a building, structure or other work therefore, that sections 2(c) and 3(d) of the agreements here in issue go beyond the permissive limitations of the construc- tion industry proviso because they are applicable not to a particular jobsite where a signatory proposes to do business with another party, but to any jobsite where the other party might also do business. The General Counsel's brief argues specifically that "the exception to Section 8(e) is limited to the site of the construction where a signatory to a no-subcon- tracting clause in the building and construction industry pro- poses to do business with another party, not to any jobsite where the other party might also happen to do business quite independently of any relationship it seeks to establish with the signatory to the clause." The Respondents maintain that the clauses in question do not exceed the limitations of the exemption for labor agree- ments in the construction industry because they are applica- ble by their terms only to "Any site of construction, altera- tion, painting or repair of buildings, structures and other work located within the geographical area over which the Council has jurisdiction." All the parties in their briefs refer to portions of the legisla- tive history and to Board and court decisions pertaining to the effect of the construction industry proviso to Section 8(e), but the statements referred to do not explicitly meet the issues raised in this proceeding. The General Counsel's brief refers inter alia to the Ets-Hokin Corporation and Dimeo Construc- tion Co. cases,' in which the Board considered the validity of certain contract clauses which reached beyond the particular construction site at which the signatory employer was doing business. The Board found that such clauses were lawful under the construction industry proviso to Section 8(e) where the clause "applies, and was intended to apply, only to on-site construction work." The Board found further, however, that the contract contained union self-help enforcement provi- sions which were declared unlawful.' There are no such self- help provisions in the agreements here involved. The General Counsel's brief argues that the holdings in the two cited cases are not determinative herein as in neither case "was any contention raised or dealt with by the Board as to the extra or inter-site effect of the clause involved." In resolving the issues raised in those cases as to the legality of the clauses in question, however, the Board decision analyzes all the rele- vant provisions of the clauses and discusses fully the reasons for its findings. As admitted in the General Counsel's brief, none of the clauses involved were found unlawful on the grounds relied on by the General Counsel herein. In Fowler-Ken worthy Electric Co.,' one of the cases relied on by the Respondents in their brief, the Board considered the legality under Section 8(e) of the following contract provi- sion: ' Ets-Hokin Corporation, 154 NLRB 839, enfd sub nom NL.R B v I B E W, Local 769, 405 F 2d 159 (C A 9), cert denied 395 U S 921, Local 437, IBEW (Dimeo Construction Co), 180 NLRB No 32 6 The subcontracting clause in question in the Ets-Hokin Corporation case, supra, for example, which had as one of its aims "to prevent subcon- tracting of electrical work in the jurisdiction of the contracting local except to a contractor having an agreement with the IBEW," was found lawful under the construction industry proviso to Sec 8(e) The contract was held to be unlawful, however, because of the provisions permitting self-help enforcement by union economic action in the event the employer breached the contract. The Board holds in these circumstances that a "contract within the construction industry proviso to Section 8 (e) may be enforced only through lawsuits and not by threats, coercion, or restraint proscribed by Section 8(b)(4)(B) " See also in this regard Muskegon Bricklayers Union No 5, etc (Greater Muskegon General Contractors Association), 152 NLRB 360, Dimeo Construction Co., supra ' Los Angeles Bldg. & Const Trades Council (Fowler-Ken worthy Electric Co, et al), 151 NLRB 770 PLUMBERS , LOCAL 48 417 The EMPLOYER agrees that if he shall subcontract any work, provision shall be made in such subcontract for all of the work performed by said subcontractor coming under the jurisdiction of any union affiliated with said COUNCILS [Respondent and certain other Building and Construction Trades Councils in the area] to be performed pursuant to an executed current agreement with the appropriate union having work and territorial jurisdiction, affiliated with the Council in which area the work is performed. The Board found the article in question did not exceed the limitations of the construction industry proviso to Section 8(e). The Board pointed out that the terms of the article "reflect an intent to confine the work covered .. to such work only as falls within the work jurisdiction of unions affiliated with Building and Construction Trades Councils in the geographical area," and, further, that "The only evidence presented in this proceeding concerning work undertaken or subcontracted by [the employer] relates to work that was to be performed at a construction site." The contracts here in issue likewise pertain by their terms to "work that was to be performed at a construction site." The Fowler-Ken worthy decision also comments as follows: The Board has stated that, in examining contractual provisions which allegedly violate Section 8(e), it will consider the language used, the nature of the contractual proscription, and the intent of the parties as evidenced, inter alia, by their interpretation and administration of the agreement.' There is no evidence in the present case with regard to the parties' intent as to the interpretation and administration of the agreements. The issues herein were raised solely on the basis of the execution of the agreements containing article 28, particularly sections 2(c) and 3(d) thereof. Although, as the General Counsel urges, the Board has not explicitly found clauses covered by the construction industry proviso to be lawful even though they extend to other than a particular jobsite, the Board has passed on the validity of such clauses and has not declared them unlawful on this basis Accordingly, I find, upon the entire record, that the evidence in the present proceeding fails to establish that the Respond- ents, by executing the agreements in question.with the Charging Party, engaged in unfair labor practices within the meaning of Section 8(e) of the Act. Upon the basis of the stipulation and the entire record in this proceeding, I make the following- CONCLUSIONS OF LAW 1. United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 48, AFL-CIO, and United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 438, AFL- CIO, are labor organizations within the meaning of Section 2(5) of the Act. 2. The employer members of Mechanical Contractors As- sociation of Maryland, Inc., are employers engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. The Board here cites Milk Drivers and Dairy Employees Union, Local 546, International Brotherhood of Teamsters, etc. (Minnesota Milk Com- pany), 133 NLRB 1314, 1317, affd 314 F 2d 861 (C A 8) The Board also held in Ets-Hokin Corporation, supra, that in an 8 (e) proceeding involving an ambiguous clause, it "will not presume unlawfulness, but will consider extrinsic evidence to determine whether the clause was intended to be administered in a lawful or unlawful manner " 3. The General Counsel has failed to establish by a prepon- derance of the evidence that the Respondents engaged in the unfair labor practices alleged in the complaint. Upon the stipulated facts, the foregoing conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER The complaint is dismissed in its entirety APPENDIX ARTICLE 28 CONTRACTING AND SUBCONTRACTING WHEREAS, the Employer is composed of member contrac- tor Employers which are engaged in the construction indus- try in the State of Maryland, and WHEREAS, the Union represents employees of said mem- ber contractor Employers and other employers engaged in the construction industry in the State of Maryland which are not member contractor Employers of the Employer, and WHEREAS, the Union is affiliated with the Baltimore Build- ing and Construction Trades Council , AFL-CIO, hereinafter referred to as the Council, as are other local trade unions which represent employees employed by employers engaged in the construction industry in the State of Maryland, and WHEREAS, Section 8(e) of the Labor-Management Rela- tions Act of 1947, as amended, provides with respect to the unfair labor practices defined therein , "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," and WHEREAS, the Employers and the Union recognize that it is detrimental to the stability of labor -management relations and to the safety, morale, productivity and stability of em- ployment of the employees employed by the Employers who are represented by the Union and to the employees of other employers represented by other local unions affiliated with the Council when said employees are required to work on sites of construction, alteration, painting or repair of a build- ing, structure or other work with other employees who are not covered by labor-management collective bargaining agreements and who work under substandard wages and con- ditions, and WHEREAS, the Employers and the Union desire to make agreements relating to contracting and subcontracting of work to be done at sites of construction, alteration , painting and repair of buildings , structures and other work in order to insure stability of labor-management relations and to safe- guard adequate wages, hours, safety and other conditions of employment and the stability of employment in accordance with and as allowed by the aforesaid provisions of Section 8(e) of the Labor-Management Relations Act of 1947, as amended, and WHEREAS, it is understood and agreed that the Employers, Union, employees represented by the Union, the Council, other local unions affiliated with the Council and employees represented by said other local unions affiliated with the Council are intended to be and are to be considered as direct beneficiaries of said agreements, THEREFORE , in consideration of the agreements made herein by the Employers and the Union , they agree with respect to work to be done at sites of construction , alteration, painting or repair of buildings , structures and other work, as follows: 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 1. Definitions As used in this Article 28 the following terms shall have the meaning hereinbelow set forth, unless the context clearly otherwise requires: (a) Covered Site-Any Site of construction, alteration, painting or repair of buildings, structures and other work located within the geographical area over which the Council has jurisdiction, except the following sites which are specifi- cally excluded: (i) any site of construction, alteration, painting or re- pair of a building, structure, or other work on which the total amount of the Employer's contract or contracts is less than Seven Hundred and Fifty Thousand Dollars ($750,000.00) except sites with respect to which the Owner stipulates, in writing, that the work is to be done by employees represented by local trade unions affiliated with the Council, provided, however, that for purposes of Section 3 of this Article, the Seven Hundred and Fifty Thousand Dollars ($750,000.00) figure shall be the total amount of the contract or contracts of the General Con- tractor on the site or of the contractor or contracts on the site let by the Owner, if the Owner is acting as its own General Contractor, instead of the total amount of the Employer's contract or contracts on the site. (ii) any site of construction, alteration, painting or repair of private homes and/or apartments up to and including four stones including the basement, unless said private homes and/or apartments are included on a site of construction, alteration, painting or repair with apartments of more than four stories, including the base- ment, or with any other building, structure or other work which is neither a private home nor apartments up to and including four stories, including the basement. (iii) any site of construction, alteration, painting or repair of a school on which the total amount of the Employer's contract or contracts is less than Three Mil- lion Dollars ($3,000,000.00), provided, however, that for purposes of Section 3 of this Article, the Three Million Dollars ($3,000,000.00) figure shall be the total amount of the contract or contracts of the General Contractors on the site or of the contract or contracts on the site let by the Owner, if the Owner is acting as its own General Contractor, instead of the total amount of the Em- ployer's contract or contracts on the site. (iv) for purposes of Section 3 of this Article, any site of alteration, repair or maintenance of any buildings or structures, as distinguished from new construction, where the Employer is bidding with or accepting a con- tract directly from the Owner and not through a General Contractor or other third party. (b) Covered Work-work normally performed under the jurisdiction of the various local trade unions affiliated with the Council which represent employees in the performance of such work. (c) Union Subcontractor-Any person, firm, corporation, contractor, employer or association whose employees per- form work over which any local union affiliated with the Council claims jurisdiction and which has in effect a signed collective bargaining agreement with each such local union. (d) Subcontracting-The subcontracting, subletting, as- signing or contracting out of work. The term "subcontract" shall mean the act of subcontracting, subletting , assigning or contracting out of work. (e) Building Trades Subcontractor-A Union Subcontrac- tor whose collective bargaining agreement with each local union affiliated with the Council with which said Union Sub- contractor has collective bargaining relations contains provi- sions entitled "Contracting and Subcontracting," specifically approved by the Council as to form and content, similar to the provisions of this Article 28 with respect to restrictions upon such Union Subcontractor performing work at covered Sites with employers who are not signatory to collective bar- gaining agreements with local trade unions affiliated with the Council (f) Person-A person, firm, corporation, contractor, em- ployer or association other than the Employer. (g) Local Office-An established operating business office located within the geographical area over which the Council has jurisdiction. (h) Union General Contractor-Any person, firm, corpora- tion, contractor, employer or association whose employees perform work over which any local union affiliated with the Council claims jurisdiction and which has in effect a signed collective bargaining agreement with each such local union. Section 2. The following provisions of this Section 2 shall apply to each Covered Site whenever an Employer seeks or obtains Covered Work as an owner or general contractor, i.e., when the Employer hold itself out as and is prepared to do all of the work involved on the Covered Site by utilizing subcontractors, in whole or in part, to perform all or part of said work: (a) The Employer shall not subcontract Covered Work at a Covered Site to any Person which, at the date of such subcontracting, is not a Union Subcontractor. (b) The Employer further agrees that in the event it bids upon or accepts any contract for the performance of work on any Covered Site on which the Owner or any other Person retains any part of the work to be subcontracted directly, rather than through the Employer, the Employer shall notify the Council of this fact, and, in specific terms, what work the Employer is not bidding upon or accepting, at least ten (10) days before the bids are due or at least ten (10) days before the contract is signed if the job is awarded without bids. In the event such Owner or other Person which retains such work should subcontract such work to a Person which at the Commencement of the work is not a Union Subcontractor, such action shall not be deemed to be covered by or subject to the provisions of this Article 28 as to either the Employer or the Union, and such action shall not be deemed to be a violation of this Article 28 by the Employer. (c) On and after October 1, 1970, the requirements of subsection (a) of this Section 2, which apply as of the effective date of this Article 28, shall become subject to the following provisions: (1) Subject to the provisions of paragraph (4) of this Subsection (c), if there are not at least three (3) Building Trades Subcontractors having Local Offices engaged in the performance of a particular type of Covered Work required by the Employer at a Covered Site, the Em- ployer shall not be subject to or restricted by the provi- sions of Subsection (a) of this Section 2 with respect to subcontracting of such type of Covered Work at such Covered Site. (2) Subject to the provisions of paragraph (4) of this Subsection (c), if there are at least three (3) Building Trades Subcontractors with Local Offices engaged in the performance of a particular type of Covered Work re- quired by the Employer at a Covered Site and the Em- ployer shall have received bids for such Covered Work from at least three (3) such Building Trades Subcontrac- tors, the Employer shall not subcontract such Covered Work at such Covered Site except to a Building Trades Subcontractor. (3) Subject to the provisions of paragraph (4) of this subsection (c), if there are at least three (3) Building Trades Subcontractors with Local Offices engaged in the PLUMBERS , LOCAL 48 419 performance of a particular type of Covered Work re- quired by the Employer at a Covered Site but the Em- ployer shall not have received bids for such Covered Work from at least three (3) such Building Trades Sub- contractors, the Employer shall not subcontract such Covered Work at such Covered Site except to (i) a Build- ing Trades Subcontractor or (ii) a Person which is not a Union Subcontractor Such covered work at a Covered Site shall not be subcontracted to a Union Subcontractor having a Local Office which was not a Building Trades Subcontractor prior to the date the bids for such Cov- ered Work were submitted to the Employer. (4) If and when all the Union Subcontractors with Local Offices engaged in the performance of a particular type of Covered Work are also Building Trades Subcon- tractors , whether the number of all of said Union Sub- contractors is less than, equal to or more than three (3), the provisions of this Subsection (c) shall not be applica- ble, and Subsection (a) hereof shall apply without qualifi- cation. (5) On or before September 1, 1970, the Union shall furnish to the Employer a list of the names and business addresses of all Building Trades Subcontractors, together with a list of those local trade unions affiliated with the Council in respect to which the Union claims that all Union Subcontractors with Local Offices are Building Trades Subcontractors and a separate list of those local trade unions affiliated with the Council which do not have a signed collective bargaining agreement with at least three (3) Building Trades Subcontractors. The Union shall promptly notify the Employer of changes in such lists from time to time as they occur, but no such notification shall be binding upon the Employer until fifteen (15) days after receipt by the Employer of such notification. If the foregoing requirements of this paragraph (5) are complied with by the Council, such compliance shall be deemed to be compliance by the Union hereunder. Section 3. The following provisions of this Section 3 shall apply to each Covered Site whenever an Employer seeks or obtains work on said site as a subcontractor , i.e., the Em- ployer is engaged in a particular or specialty type or types of Covered Work and does not hold itself out or attempt to obtain Covered Work on said Covered Site as a General Contractor prepared to do all of the work on the Covered Site: (a) The Employer shall not subcontract Covered Work at a Covered Site to any Person which, at the date of such subcontracting , is not a Union Subcontractor. (b) The Employer further agrees to refrain from bidding on or accepting any contract for the performance of Covered Work on any Covered Site where any Person has performed, is performing or will be performing any Covered Work if such Person is not a Union Subcontractor , execpt Covered Sites on which a Person which is not a Union Subcontractor may perform Covered Work pursuant to Subsections (c)(1) or (c)(3) of Section 2 or Subsections (d)(1) or (d)(3) of this Section 3 of Article 28. The intent of this subsection (b) of Section 3 is that the Employer will not perform Covered Work on any Covered Site unless all Covered Work on such Covered Site has been , is being and will be performed 100% by employees of Union Subcontractors except as provided in the preceding sentence. (c) The Employer further agrees to submit bids only to and accept contracts only from Union General Contractors. (d) On and after October 1, 1970 the requirements of Sub- section (a) of this Section 3, which apply as of the effective date of this Article 28 , shall become subject to the following provisions: (1) Subject to the provisions of paragraph (4) of this Subsection (d), if there are not at least three (3) Building Trades Subcontractors having Local Offices engaged in the performance of a particular type of Covered Work required by the Employer at a Covered Site , the Em- ployer shall not be subject to or restricted by the provi- sions of Subsection (a) of this Section 3 with respect to subcontracting of such type of Covered Work at such Covered Site. (2) Subject to the provisions of paragraph (4) of this Subsection (d), if there are at least three (3) Building Trades Subcontractors with Local Offices engaged in the performance of a particular type of Covered Work re- quired by the Employer at a Covered Site and the Em- ployer shall have received bids for such Covered Work from at least three (3) such Building Trades Subcontrac- tors, the Employer shall not subcontract such Covered Work at such Covered Site except to a Building Trades Subcontractor. (3) Subject to the provisions of paragraph (4) of this Subsection (d), if there are at least three (3) Building Trades Subcontractors with Local Offices engaged in the performance of a particular type of Covered Work re- quired by the Employer at a Covered Site but the Em- ployer shall not have received bids for such Covered Work from at least three (3) such Building Trades Sub- contractors, the Employer shall not subcontract such Covered Work at such Covered Site except to (i) a Build- ing Trades Subcontractor or (ii) a Person which is not a Union Subcontractor, Such Covered Work at a Cov- ered Site shall not be subcontracted to a Union Subcon- tractor having a Local Office which was not a Building Trades Subcontractor prior to the date the bids for such Covered Work were submitted to the Employer. (4) If and when all of the Union Subcontractors with Local Offices engaged in the performance of a particular type of Covered Work are also Building Trades Subcon- tractors, whether the number of all of said Union Sub- contractors is less than , equal to or more than three (3), the provisions of this Subsection (d) shall not be applica- ble, and Subsection (a) shall apply without qualification. (5) From time to time as changes occur , the Union shall furnish to the Employer a list of the names and business addresses of all General Contractors which have in effect the signed agreement with the Council, popularly referred to as the "Building Trades Agree- ment," which regulates the subcontracting of Covered Work by General Contractors on Covered Sites. If the foregoing requirments of this paragraph (5) are complied with by the Council , such compliance shall be deemed to be compliance by the Union hereunder Section 4. Notwithstanding any other provision of this Agree- ment to the contrary, in the event of any dispute or disagree- ment relating to the application or interpretation of any provision of this Article 28, the following expedited proce- dure shall apply for the resolution of said dispute or disagree- ment: (a) A representative of the Employer involved and of the Union shall meet within twenty-four (24) hours after oral or written notice to attempt to resolve the dispute or disagree- ment. (b) If the dispute or disagreement is not settled at the meeting specified in (a) above , or if either party fails or refuses to meet within the specified period of twenty-four (24) hours, either party may submit the matter to arbitration by written notice to the other party. Within twenty-four (24) hours after 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said notice is given, the Employer involved and the Union shall appoint a mutually acceptable Arbitrator to hear and determine the dispute. If the parties do not agree upon and appoint an Arbitrator within the twenty-four (24) hour period, or if the mutually agreeable Arbitrator cannot hear and determine the dispute within ten (10) days after his ap- pointment, either party may apply to the American Arbitra- tion Association for a list of Arbitrators from which an Arbi- trator shall be chosen within twenty-four (24) hours of receipt of the list by each party alternately striking names until one (1) name remains. The Arbitrator so chosen shall hear and determine the dispute within (10) days from the date of his appointment, if at all possible, and the parties shall cooperate in every way necessary to assist the Arbitrator in facilitating the disposition of the matter. The Arbitrator may prescribe any remedy or relief which he deems appropriate for any violation of Article 28 which he finds. (c) The fee and expenses of the Arbitrator shall be shared equally by the Employer involved and the Union and his decision shall be final and binding. (d) It is understood and agreed that if either the Employer involved or the Union fails or refuses to cooperate in selecting an Arbitrator from the list submitted by the American Arbi- tration Association in strict accordance with the procedure set forth above, the other party may unilaterally select an Arbitrator from such list submitted by the American Arbitra- tion Association and, provided that written notice of such selection and the date, time and place of hearing is given to the refusing party, said Arbitrator, even though unilaterally selected, is hereby granted the authority to hear and deter- mine the dispute and his decision shall be final and binding as if both parties had participated fully as allowed hereunder whether or not one of them fails to do so. (e) Since the parties recognize that conformity with Sec- tions 2 and 3 of this Article 28 is absolutely essential to and is the heart of this Article 28, the Employers and the Union agree that in the event the Arbitrator finds that the Employer involved has violated Sections 2 and/or 3 of this Article 28, the Arbitrator shall, in addition to any other relief or remedy which he deems appropriate, prescribe the following remedy for such violation- (1) For a violation of Section 2(a), 2(c), 3(a) or 3(d), order the Employer involved to remove from all further work on the job site, within three (3) days from the date of the issuance of the Arbitrator's decision, any Person to which the Arbitrator finds the Employer has subcon- tracted work in violation of said Section or Sections; (2) For a violation of Section 2 or Section 3, order the Employer involved to cease and desist from any further violation of any provisions of Section 2 or Section 3 on the job site involved in the arbitration proceeding and on any other job site covered by Section 1, (3) For a violation of Section 2(a), 2(c), 3(a), or 3(d) award to each local trade union affiliated with the Coun- cil whose members have lost work on the job site in- volved in the proceedings as a result of the violation of said Section an amount of money equal to the amount of wages and fringe benefit payments which it has been reasonably proved said members have lost as a result of said violation, it being understood that the local trade union shall pay over to the proper Trust Funds the fringe benefit payments recovered; (4) For a violation of Section 3(b) or 3(c), order the Employer involved to give up the contract and job, remove itself and all its employees from the job site within three (3) days from the date of the issuance of the Arbitrator's decision, and do no further work of any kind on the job site; (5) In the event that the Employer involved fails to comply with that part of the order of the Arbitrator issued pursuant to paragraph (1) above, the Union may resubmit the matter to the same Arbitrator and if, after a hearing on such resubmission, the Arbitrator finds that such Employer did, in fact, fail to comply with said part of said order, the Arbitrator shall order the Employer involved to pay, as liquidated damages, to the local trade union or local trade unions affiliated with the Council whose members have lost work on the job site to which said part of said order is applicable: (i) A sum equal to the wages and fringe benefit payments reasonably proved to have been lost by such members as a result of the violation subse- quent to the date as of which the damages were determined pursuant to paragraph (3). The local trade unions shall pay over to the proper trust funds the fringe benefit payments received under this clause (i); plus (ii) a sum equal to 7% of the total amount of the contract between the Employer involved and the party which the Employer failed to remove from the job site pursuant to the order of the Arbitrator for each working day of such failure to remove (measured from the third working day following the date of issuance of the order of the Arbitrator) up to a maximum of 77% of the total amount of said contract; provided, however, that if the con- tract in question is not presented to the Arbitrator by the Employer or if the Arbitrator finds that the contract presented to him does not reflect the rea- sonable value of the work to be done in the craft in question, then the Arbitrator shall make an inde- pendent finding of the reasonable value of the work to be done in such craft. In such event the aforesaid damages shall be computed upon the amount of the reasonable value of the work as found by the Arbi- trator. (6) In the event that the Employer involved fails to comply with the remedy ordered by the Arbitrator, as set forth in paragraph (4) above, the Union may resub- mit the matter to the same Arbitrator and if, after a hearing on such resubmission, the Arbitrator finds that the Employer involved, did, in fact, fail to comply with said order, the Arbitrator shall order the Employer in- volved to pay to the Union, as liquidated damages, for each day of failure to comply (measured from the third working day following the date of issuance of the order of the Arbitrator) an amount of money equal to five percent (5%) of the total amount of the contract pursu- ant to which the Employer was working on the job up to a maximum of fifty-five percent (55%) of said con- tract; provided, however, that if the contract in question is not presented to the Arbitrator by the Employer or if the Arbitrator finds that the contract presented to him does not reflect the reasonable value of the work to be done in the craft in question, then the Arbitrator shall make an independent finding of the reasonable value of the work to be done in such craft. In such event the aforesaid damages shall be computed upon the amount of the reasonable value of the work as found by the Arbitrator. (7) The parties acknowledge and agree that the actual damages which may result from a failure of an Employer to observe and comply with an order of the Arbitrator under this Section 4 would be broad in scope and have extensive ramifications that would tend to undermine organized labor in the construction industry. Such fail- PLUMBERS , LOCAL 48 ure would result in unfair competition and create chaotic conditions in the construction industry with extremely deleterious effects on organized labor that are virtually impossible of monetary calculation, Accordingly, the parties have agreed upon the formulae for damages set forth in paragraphs (5) and (6) of this Section 4(e), not to impose a penalty on the Employer, but as their best estimate of the monetary equivalent of the loss and in- jury to the Union, the Council and other local trade unions affiliated with the Council which would result from an Employer's refusal to abide by such order of the Arbitrator. Section 5. Notwithstanding the provisions of Section 4 of this Article 28 relating to arbitration as a means of resolving disputes or disagreements with respect to the application or interpretation of the provisions of this Article 28, either the Employer or the Union may also utilize any legal means, other than arbitration, to remedy a violation of any provision of this Article 28, including injunctive relief in a court of competent jurisdiction if the law allows and intervention of appropriate governmental administrative agencies provided, however, that arbitration under the provisions of Section 4 shall be the only means permitted to seek money damages for any violation of this Article 28, except that an Arbitrator's award of money damages, as in the case of any other award or order of an Arbitrator, may be enforced in a court of law 421 in the event the party against whom the money damages are awarded fails or refuses to comply with the award. Section 6. There shall be no strike action or work stoppage of any kind by the Union nor lockout action or job shutdown by the Employers to remedy any violation of any provision of this Article 28 or to enforce any award or order of an arbitrator made under this Article 28. Section 7 If any Section, or portion thereof, of this Article 28 should be held invalid by operation of law or by any tribunal of competent jurisdiction, or if compliance with or enforcement of any Section, or portion thereof, of this Article 28 should be restrained by such tribunal pending a final determination as to its validity, the remainder of this Article 28, or the application of such Article to persons or circum- stances other than those as to which it has been held invalid or as to which compliance with or enforcement of has been restrained, shall not be affected thereby. In the event that any Section, or portion thereof, of this Article 28 is held invalid or enforcement of or complaince with has been restrained, as above set forth, the Employers and the Union shall enter into immediate collective bargaining negotiations, upon the re- quest of the Union or the Employers, for the purpose of arriving at a mutually satisfactory replacement for such Sec- tion, or portion thereof, during the period of invalidity or restraint