Intl. Brothd. of Bolilermaker, Local 92

INTL. BROTHD. OF BOILERMAKERS, LOCAL 92 281 International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers; Interna- tional Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local 92 and Bigge Drayage Company and Macias-Farwell Company, Party to Contract. Case 31-CE-25 June 6, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On December 3, 1971, Trial Examiner Leo F. Lightner issued the attached Decision in this pro- ceeding. Thereafter, Respondents filed exceptions and a supporting brief, and the Charging Party filed a reply 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 authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions, and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondents, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forg- ers & Helpers, Kansas City, Kansas, and Interna- tional Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local 92, South Gate, California, their respective officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order. CHAIRMAN MILLER, concurring: Although I agree that Respondent Unions violated Section 8(e), in doing so, I find it unnecessary to reach the question of whether the work sought by Respondents for their members was "fairly claima- ble." Instead, I would find their claim for the work resulted in a "reentry" of provisions in Respondents' collective-bargaining agreement whereby signatory employers were required to perform certain "offsite" ' The Respondents have excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F 2d 362 (C A. 3) We have carefully examined the record and work solely through employers also party to a contract with Respondents. Rule 1 of the agreement in question, inter aba, precludes the contracting out of work covered by the agreement to any person "who does not comply with all the terms of this agreement or a field construction agreement in effect where the work is erected, which has been approved by the International Brotherhood, and does not stipulate in writing compliance to the applicable fringe benefit funds and the trust agree- ment or agreements covering same." All contracts of Respondents include provisions requiring recogni- tion of Respondents, and union-security clauses. Hence, no subcontractor could comply with the standard set forth in Rule 1, other than through execution of an agreement with Respondents. It is plain therefore that the clause in question is not simply designed to protect economic standards in the unit represented by Respondent, but is an organiza- tional device, which precludes signatory employers from doing business with nonsignatories. The dispute under this agreement arose when Macias, a signatory, contracted with Bigge, a nonsignatory whose employees were represented by Teamsters, for the transportation and storage of imported construction materials. Among the materi- als was penstock, which Bigge transported from shipside to a storage area owned by Bigge. The penstock was unloaded and stored at this storage area, then reloaded and delivered to the jobsite as required by the progress of construction activity. The storage area involved was located about 19 miles away from the construction site, but is used as a depot for numerous other construction sites serviced by Bigge in southern California. The unloading and loading at this storage area was assigned by Bigge, in accordance with its historic practice, to employees represented by Teamsters. Respondent Unions claimed this work and filed a grievance under their contract seeking a determination that the Bigge storage area was "onsite" and therefore work performed there was covered by their agreement. On February 17, 1971, a joint panel issued an award to the effect that the work performed at Bigge's storage area was covered by Respondents' contract with Macias. On these facts it is clear that the joint panel determination constituted a reentry, within the 10(b) period, which extended the union-signatory clause to work performed at Bigge's storage area. The effect of this determination was to require Macias, in order to find no basis for reversing his findings. We hereby correct the Trial Examiner's error, in that part of his Decision entitled "Macias and Bigge Ownership and Operation ," where he sets forth the testimony of Glen C Holtwick The facts set forth there are rooted in a stipulation of the parties made after Holtwick was excused without having testified. 197 NLRB No. 34 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD comply with its terms, to cease doing business with Bigge and award the loading and unloading work to a signatory employer, unless Bigge were willing to execute an agreement with Respondents. Such an agreement is plainly secondary and within the proscriptive provisions of Section 8(e). As I agree with the Trial Examiner that Bigge and Macias did not constitute a "single employer" and were not "allies" and that the award extended the union- signatory agreement to the Bigge storage area, where the work performed cannot reasonably be construed as "done at the site of construction,"2 I would find that the construction industry proviso is inapposite, and that Respondents violated Section 8(e) by entering into, maintaining, and giving effect to a union-signatory agreement. The unlawful nature of such an arrangement to the extent it approves subcontracting of the work to any signatory pre- cludes any determination whether the work in question was "fairly claimable" by Respondents and I would not reach that issue. 2 An issue was raised as to whether the Board should defer to the joint panel decision under Collyer Insulated Wire Corporation, 192 NLRB No 150, and give binding effect to this determination that the Bigge storage area "is a jobsite storage area " See, e g, Spielberg Manufacturing Co, 112 NLRB 1080 Although I agree with the Trial Examiner that we should not defer to such an award, I reach that conclusion solely because that award is the conduct which gave rise to the violation alleged and found herein As an interpretation of the agreement, the award was a part thereof. Far from resolving an unfair labor practice issue, the determination gave rise to the unfair labor practice In these circumstances thejoint panel proceeding can in no sense be regarded as an alternative forum for resolving issues appropriate for Board determination TRIAL EXAMINER'S DECISION FINDINGS AND CONCLUSIONS 1. BUSINESS OF THE EMPLOYERS Macias-Farwell Company, hereinafter referred to as Macias, is a California corporation engaged in the heavy steel construction industry. In the course and conduct of its business operations, Macias, annually, in a representative penod, purchases and receives within the State of Califor- nia supplies and materials valued in excess of $50,000 directly from points outside the State of California. Bigge Drayage Company, hereinafter referred to as Bigge, is a California corporation engaged in trucking and specializing in the transportation of materials used in the construction and mining industries.3 In the course and conduct of its business operations, Bigge, annually, in a representative period, derives revenue in excess of $50,000 for the transportation of freight within the State of California, which arrives directly from points outside the State of California. The complaint alleges that Macias and Bigge are, each, an employer engaged in commerce and in a business affecting commerce within the meaning of Sections 8(e) and 2(6) and (7) of the Act. The answer denies these allegations relative to Macias, but it admits them as to Bigge. On the basis of the undisputed commerce facts, I find the jurisdiction of the Board, under the enumerated sections, is established. II. RESPONDENT UNIONS ARE LABOR ORGANIZATIONS The complaint alleges, the answer admits, and I find that Respondents, at all times material herein, are, and have been, labor organizations within the meaning of Sections 2(5) and 8(e) of the Act. STATEMENT OF THE CASE LEO F. LIGHTNER, Trial Examiner: This proceeding was heard before me in Los Angeles, California, on September 28, 1971, on the complaint of General Counsel, as amended, and the answer, as amended, of International Brotherhood of Boilermakers, Iron Ship Builders, Black- smiths, Forgers & Helpers and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local 92, herein referred to as Respondents, jointly.' The complaint alleges violations of Sections 8(e) and 2(6) and (7) of the Labor Management Relations Act, 1947, as amended (61 Stat. 136; 65 Stat. 601; 73 Stat. 519; 29 U.S.C. Sec. 151, et seq), herein called the Act. The parties waived oral argument; briefs filed by the General Counsel, Respondent, and Charging Party have been carefully considered.2 Upon the entire record, and from my observation of the witnesses, I make the following: i A charge was filed on July 24, 1970. A complaint was issued on June 4, 1971, and amended at the outset of the hearing herein 2 General Counsel and Charging Party are to be commended for the excellence of their briefs, which have been most helpful III. UNFAIR LABOR PRACTICES A. The Issues The principal issue raised by the pleadings and litigated at the hearing is whether Respondents engaged in conduct in contravention of the provisions of Section 8(e) where, having entered into an agreement, they maintained and gave effect to contract clauses whereby Macias agreed to cease or refrain from handling, using, selling, transporting, or otherwise dealing in any of the products of any other employer; or otherwise stated, whether the disputed contract clauses were protected by the construction proviso to Section 8(e); and more particularly, whether a storage area of Bigge is, in fact, part of the construction site of Macias. A subsidiary question, raised by way of defense, is whether Macias and Bigge constitute a single employer within the meaning of the Act. Respondents deny that their conduct constitutes an unfair labor practice within the meaning of Section 8(e). 3 Credibly related by Cusick, explicated infra Bigge Drayage Company is divided into two divisions identified as Bigge Crane and Rigging Company Division and Bigge Drayage Division We are herein concerned only with the latter, and only a portion of its operation INTL. BROTHD. OF BOILERMAKERS, LOCAL 92 B. Agency The complaint alleges, the answer admits, and I find that James F. Precht, International vice president, and acting chairman of the Union Negotiating Committee, Frank A. Lombardy, secretary and business manager of Local 92, and Palmer Lee, assistant business manager of Local 92, at all times material herein, have been and are agents of Respondents within the meaning of Section 2(13) of the Act. C. Background The facts set forth under this section are undisputed. The Department of Water & Power of the city of Los Angeles is constructing a hydroelectric generating plant at a jobsite near Castaic, California, herein identified as the "Castaic Project." Said department has contracted with Macias for the furnishing and installation at the Castaic Project jobsite of sections of penstock, further described infra Macias has contracted with Bigge for the transporta- tion of penstock and other construction material, initially from its point of delivery from Japan, at Port Heuneme, to the Bigge terminal at Castaic Junction, for storage until needed at the jobsite, and for transportation to the ^obsite, when needed. The distance from Castaic Junction to the Castaic Project jobsite is approximately 19 miles, by the route Bigge is required to traverse by reason of permit requirements for large vehicles. Respondents herein con- tend that the Castaic Junction terminal, or storage yard, of Bigge, is part of the construction site or jobsite of the Castaic Project. Edwin W. Cusick credibly related that he has been employed by Bigge since 1940. He has been manager of the southern division of the Trucking Division since February 1969 and was previously manager of the entire Trucking Division for an unspecified period of time. Cusick related that Bigge handles material used or useful in construction and mimng.4 Bigge receives material from manufacturers, transports it, and ultimately delivers it to construction jobsites. Some material is received by ship, some by rail, and some by trucking. Some material is taken to a storage facility and held for delivery as required. Bigge's vehicles are operated by members of unidentified locals of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein referred to as Teamsters.5 Bigge's principal office is located in San Leandro, California. The southern division, under Cusick, has responsibility for deliveries in an area south of Fresno and south of Santa Maria, to the southern California border, and includes Arizona and Nevada. These services are supplemented by line trucks, operating out of San Leandro. Bigge established a facility known as Castaic Junction in the northwest comer of Los Angeles County, approximate- ly 1/2 mile from the intersection of Highway 126 and Interstate 5. It is comprised of a storage facility, parking lot, and a repair and maintenance building for its trucks or 4 Unquestionably the term "handles" relates to both transportation and storage. 5 Bigge presently has 12 employees at Castaic Junction, 10 drivers, a 283 conveyances. The facility is comprised of two parcels of land, on both sides of a railroad track and spur, owned by Southern Pacific and referred to as a public-team track. On one side there is a maintenance shop facility in a building. On the other' side, a 10 acre parcel has been graded, graveled, and a cyclone chain-link type fence erected. It contains, inter aka, an office trailer, fuel tanks, fuel pumps, and parking areas for Bigge equipment. It is also a storage area for materials awaiting delivery to pipeline companies which install water lines and for various components used in hydro projects. The hydro projects are a series of pump stations and generating stations, located from 9 to 70 miles distant. There is no construction at Castaic Junction. The loading and unloading at Castaic Junction has at all times been done by Bigge employees. Bigge has had contracts with the Teamsters, at least since 1940. Bigge does not have a collective-bargaining agreement with either of Respon- dents, and it is reasonable to infer Bigge has never employed members of Respondent Unions. In December 1969, another carrier delivered two pieces of penstock to Castaic Junction, from Long Beach. At that time, the same carrier delivered three pieces of penstock to the Castaic Project jobsite. In April 1970, the first penstock arrived at Port Hueneme, in Ventura County, 50 miles from Castaic Junction, and was transported, by Bigge, by special new equipment, described infra, to Castaic Junction. The first delivery, by Bigge, from Castaic Junction to the Castaic Project was on July 15, 1970. It is 19 miles, by the route Bigge is required, by its licenses, to traverse, from Castaic Junction to Castaic Project. There have been eight shiploads of penstock. Some of the penstock received in April 1970 was still in the storage yard at Castaic Junction, at the time. of the hearing herein, in September 1971. Dresser couplings, gaskets and bolts for couplings, essen- tial in the use and installation of penstock, came by rail to the siding, was off loaded by Bigge Teamsters employees, and stored at Castaic Junction. A dresser coupling was described as a coupler attached to the ends of two pieces of penstock for the purpose of joining them together, with a companion flange follower and rubber gaskets. Bigge has picked up, stored, and delivered material, from Castaic Junction, for some 19 or 20 contractors, since December 1969. Only three of these, including Macias, were working at the Castaic Project jobsite. Among the contractors, identified by Cusick, as being serviced by Bigge, in the manner described, are American Bridge, Wizmer and Becker, Polich Benedict, Green Construction, Peter Keewitt, Western, Vinnell, and Delaware V M. Among the jobsites, other than Castaic Project, serviced from Castaic Junction, by Bigge, are Buena Vista Pump Station, in Kern County, some 75 or 80 miles; Wheeler Ridge, 60 miles ; Wind Gap, 56 miles ; Edmondston, 55 miles; Oso Pumping Station, 40 miles; American Bridge, 8 miles ; a job in Beaumont, in Riverside County; a job in Lost Hills, beyond Bakersfield; and a Castaic water generating plant, location unspecified .6 Approximately 36 percent of Bigge's business, at Castaic Junction, in terms of dispatcher, and Cusick It has had as many as 16 drivers None are employed full time on Macias work 6 Cusick acknowledged they did not store materials at Castaic Junction (Continued) 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gross receipts, was performed for Macias. It is a common practice for Bigge to receive materials at its various terminals, including Castaic Junction, and store them for varying periods, until needed at a jobsite. Cusick explained that most manufacturers make all typical pieces at one time, but they may not be installed in that sequence. It has become a practice, in many industries, to mass produce a given shape or size or thickness, which then go to a holding unit, such as Castaic Junction. Similarly, material arriving by ship involves a chartered ship and contains whatever they can accommodate on the ship, and does not necessarily contemplate delivery at the jobsite in the sequence of initial delivery. I turn next to a description of penstock, and the special equipment required for its transport, loading and unload- ing, which at all times, historically, since its introduction, has been work performed by Teamsters employees of Bigge.7 A section of penstock is described as a piece of steel, usually open at both ends, usually 38 to 40 feet in length, having a diameter varying from 12 to 13-1/2 feet, with varying wall thicknesses, having heavier plate at the bottom. It is lifted from the ship by cargo boom. Teamsters employees, three men in each crew, place a needle beam through the section. An hydraulic lift then lifts the section at both ends. A cab, containing special equipment, then tows the section down prescribed highways, to the place of delivery. From Port Hueneme, normally, it is taken to Castaic Junction, where the process is reversed and the section is placed on shipping legs or blocks. This process is repeated when the section is delivered to the jobsite. After delivery to the jobsite, and unloading, the Boilermakers hook their gear onto it and set it where needed. The beam process is used only with pieces that are open at both ends. There have been 187 sections of penstock, all but 18 or 19 sections of which were open at both ends. Eighteen or nineteen sections have had test heads, or configurations, which prevent the needle beam going through, as they are solid on the ends.8 The sections with test heads are lifted by sling, placed on a low bed trailer, and, when delivered to the jobsite, are off loaded, from the trailers, by the Boilermakers employees of Macias. Cusick acknowledged that it is only when this needle loader, operated by Teamsters employees of Bigge, is used, that the Teamsters actually unload penstock at the construction site. Historically, the craft installing material at jobsites do the unloading, including electricians, boilermakers, ironworkers, and other craftsmen. Previous- ly, or historically, prior to the use of the special equipment, sections were not as large, they were placed on a flatbed or trailer, which did not have the capability of unloading or loading itself, by hydraulic lift. Historically, Teamsters have both loaded and unloaded construction equipment, including pipe, turbine materials, generating materials, transformers, circuit breakers, and other building materi- als, and common freight, including 12- to 14-inch diameter pipe, when delivered to the storage area. Historically, Teamsters have loaded the same equipment, and delivered for the Beaumont job, but the trucks making the deliveries were located there. 7 Fairly read, the recitation of Cusick would appear to imply that penstock was first introduced , in its present size, into construction work in 1969 However, Cusick asserted that the vehicles used, with a lifting process, it to the jobsite, for unloading by the various craftsmen indicated. Cusick asserted that it has only been since the Department of Water Resources Project started that there has been enough of the type of work described to warrant procurement of this special equipment, which was not previously used. This special equipment has been used to haul other material to other jobsites for other contractors. Cusick asserted that, customarily, three pieces of penstock are at the jobsite. He described two pieces as being in storage while one was a working piece. It is undisputed that Judd, a subcontractor of Macias, did paint some penstock at Castaic Junction spasmodically. There has been no delivery of penstock from Japan, during the West Coast shipping strike. While none of Macias employees are regularly employed at Castaic Junction, Cusick acknowledged that bolts and washers have been picked up by Macias employees, inferentially for use at the jobsite. No other contractor or subcontractor has per- formed work at Castaic Junction. I turn next to the provisions of the collective-bargaining agreement and its interpretation, which gave rise to the litigation herein. On or about March 31, 1969, Macias entered into a written collective-bargaining agreement with Respondents, which by its terms is effective from October 1, 1968, to September 30, 1971, and which is known as the Eight Western States Field Construction Agreement and at all times material herein the agreement has been in effect. The agreement contains, inter aka, the following: RULE 1. SCOPE OFAGREEMENT (a) Scope-This agreement shall apply exclusively to the states of Washington, Oregon, California, Idaho, Utah, Nevada, Arizona and Alaska; and within such area this agreement shall apply to all of contractor's field construction work (including construction erection, rigging, loading and unloading, field fabrica- tion, assembling, dismantling, and repairing performed in the field) coming under the jurisdiction of the Union. (b) Job Site Sub-Contracting-No employer shall subcontract any of the work covered by this agreement to any contractor, sub-contractor or other person or party who does not comply with all the terms of this agreement or a field construction agreement in effect in the area where the work is erected, which has been approved by the International Brotherhood, and does not stipulate in writing compliance to the applicable fringe benefit funds and the trust agreement or agreements covering same. (c) It is understood that (b) is applicable to loading and unloading per the "interpretation of Rule 1 " appended to this contract, and to a secondary field construction site established for the specific purpose of servicing the primary field construction site. [Emphasis supplied in complaint.] The "interpretation of Rule I ", referred to in subpara- obviating the need to place the transported merchandise on another vehicle, have been in existence since 1964 Bigge holds the patents on these vehicles. 8 While obscure in the record, pictures of these sections with test heads permit a reasonable inference that these pieces are substantially shorter than the pieces described, also shown by picture INTL. BROTHD. OF BOILERMAKERS, LOCAL 92 graph (c), and appended to the collective-bargaining agreement, provides in pertinent part as follows: EIGHT WESTERN STATES BOILERMAKER FIELD AGREEMENT Interpretation of Rule I as Applicable to Loading and Unloading In accordance with the Agreement reached at the settlement of Contract negotiations in 1965, there has been submitted by International Vice-President, James F. Precht, the following: "It shall be within the Boilermakers' jurisdiction that the unloading and loading of materials which the Boilermakers are to erect; if such materials are shaken out, separated, segregated, and stored for any period of time. When said material is again loaded and unloaded on a conveyance and transported to the job for erection it shall be unloaded and erected by the Boilermakers." In joint review of the above, it was agreed that the following shall apply: The Union wishes only to protect and not to expand, its historical jurisdiction over unloading and loading of Boilermaker materials. Also, the Union's claims are not extended to apply to material that is in trans-shipment at a transfer point. The Contractor agrees that he will not sub-contract suck work for the purpose of encroaching on the historical jurisdiction of Union. In the event a disagreement or dispute arises with regard to the historical jurisdiction, as outlined in the Union's claim, each specific case may be processed between the Union and such Contractor involved in accordance with the governing language of the Agree- ment. The complaint alleges, the answer admits, and I find that the collective-bargaining agreement and the field construc- tion agreement referred to in rule 1(b) include a provision requiring recognition of Respondents and includes a union-security agreement. 1. Events on and after June 3, 1970 The complaint alleges, the answer admits, and I find, that since June 3, 1970, and at all times material thereafter, Respondents have asserted and maintained that the collective-bargaining agreement, described supra, requires that the work of loading and unloading material, including penstock, at Bigge's Castaic Junction terminal be per- formed by employees covered by the collective-bargaining agreement between Respondent Local and Macias. On or about June 3, 1970, Respondents, by letter signed by James F. Precht, informed Macias that rule 1, of the collective-bargaining agreement, described supra, applied to the work of loading and unloading material at Bigge's Castaic Junction terminal. On or about August 7, 1970, Respondents, by Frank A. Lombardy, invoked the grievance machinery of the collective-bargaining agreement, described supra, to com- pel Macias to comply with and abide by the interpretation 285 and application of rule 1 of said collective-bargaining agreement, described supra. The complaint alleges, the answer admits, and I find that, on or about February 17, 1971, pursuant to the grievance provisions of the collective -bargaining agree- ment, the acting chairman of the Employers' negotiating committee, identified as Harry Hine, a labor relations representative of a different construction company, and the acting chairman of the Union negotiating committee, and International vice president , James F. Precht, issued an interpretation and application of rule I which, in pertinent part, asserts: We, the undersigned, as per the first paragraph of Rule 18 of the Eight Western States Agreement, have inspected the storage yard, as well as the job site, and in accordance with Rule 1, Subsection (c) of the Agree- ment, and interpretation of Rule 1, applicable to loading and unloading, do hereby determine that the storage area in Castaic is a job site storage area and is not part of delivery. Because of this, the loading and unloading at the storage yard properly falls within the jurisdiction of the Boilermakers. By amendment to the complaint, it is alleged, and by stipulation of the parties, it is undisputed, that since the issuance of the decision of February 17, 1971, Respondents have threatened to induce and encourage employees of Macias to strike unless Macias complied with and abided by rule 1 of the collective-bargaining agreement as interpreted and applied (it) in the manner (described in the interpretation), and that Respondents would picket Macias for such purpose had the General Counsel not advised Respondents of his intention to seek a 10(1)9 injunction pending the hearing herein. It is undisputed that, for the purpose of this proceeding, Respondents assert, under the interpretation of February 17, 1971, the loading and unloading at Castaic Junction (of penstock, or other materials used by Macias) is subject to the terms of the agreement between Macias and Respon- dents. It is alleged that the agreement, as interpreted, requires Macias to cease or refrain from doing business with Bigge, unless and until Bigge becomes bound by the agreement, or a field construction agreement approved by Respon- dents. Respondents' denial appears to be predicated upon the single-employer issue, explicated infra. 2. Macias and Bigge Ownership and Operation Macias is a California corporation, a majority of the stock of which is owned by H. W. Bigge. Bigge is a California corporation, and all of the stock is owned by Mr. and Mrs. H. W. Bigge. Prior to July 22, 1968, Macias was known as Bigge Steel Construction Company and was wholly owned by Bigge. Both corporations occupy premises at 10700 Bigge Avenue, San Leandro, California. Both corporations use the same telephone number. The premises at 10700 Bigge Avenue are owned by Mr. and Mrs. H. W. Bigge. Michael L. Hayes is an officer of both corporations. 9 Incorrectly designated 10(k) in the transcript. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Michael P. Hayes is the nominee of H. W. Bigge on the board of directors of Macias.10 H. W. Bigge is president and chief executive officer of Bigge. Both corporations have been represented by the same legal counsel in National Labor Relations Board proceedings ansing out of the transactions described in the complaint. Glen C. Holtwick, whose recitation is undisputed, related that he is assistant manager of the Trucking Division and that he or his subordinates handle grievances relating to employees of Bigge. Ed Macias, president of Macias, or his subordinates handle grievances relating to employees of Macias. Ed Macias is part of the committee of the Employers' negotiating committee which represents a multiemployer group in negotiating the Boilermakers contract. Macias signed the current agreement on behalf of Macias. No one from Bigge sits on this negotiating committee. Holtwick sits on the California Trucking Association's negotiating committee for Bigge, and negoti- ates the Teamsters' master agreement covering all special- ty equipment, and including Bigge employees at Castaic Junction. Holtwick also negotiates the Machinists contract, and has final say on contract interpretation. No one from Macias participates in negotiations, grievances, or contract interpretation matters of Bigge. The office of Bigge at Castaic Junction is in a trailer and is the office Cusick works out of. No one from Macias has anything to do with the operation of Castaic Junction. The Trucking Division does not have anything to say about the operation of Macias at the project site. Bigge's relationship to Macias is the same as its relationship with any other contractor. Other than truckdrivers, office help, superviso- ry people, and mechanics in the garage for repair work, Bigge has no other employees at Castaic Junction. Cusick had no knowledge of any division of Bigge having anything to do in connection with the operation of the construction site. No other division of Bigge works out of Castaic Junction. Macias has an office at the Castaic Project. Ray Stefanko is in charge of the work at Castaic Project. Stefanko might use the telephone but otherwise does not conduct business out of Castaic Junction. Stefanko does request material, as needed, from Cusick or the dispatcher. Cusick does visit the Castaic Project, but does not direct any employees of Macias. No one from Macias has anything to do with the operation of Castaic Junction. Similarly, no one from the Trucking Division has anything to say about the operation of Macias at Castaic Project. D. Concluding Findings 1. Single-employer issue Respondents, in their brief, urge that Macias and Bigge are "so inextricably entwined" that it would not be improper to treat them as a single employer. Ergo, the dispute is a jurisdictional work dispute, within the meaning of Section 10(k). I find no merit in this contention. In the Sakrete case" the Board held: 10 1 have no means of knowing if there are two Michael Hayes or if this is an error in the transcript I do not deem it of importance 11 Sakrete of Northern California, Inc, 137 NLRB 1220, 1222, enfd 332 F.2d 902 (C.A 9), cert. denied 379 U S 961. The Board often treats separate corporations as one employer for jurisdictional purposes, where it is found that the firms, despite their nominal separation, are highly integrated with respect to ownership and operation. Some of the principal factors which have been considered relevant in determining the extent of integration are: (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. In the Drapery Mfg. case 12 the Board held that none of the factors, enumerated in Sakrete, has been held to be controlling, but stress has been laid upon the first three factors to show operational integration particularly central- ized control of labor relations. The Board has held with court approval that separate corporate subsidiaries are separate persons, each entitled to the protection of Section 8(b)(4)(B) from the labor disputes of the other, if neither the subsidiaries nor the parent exercises actual or active, as opposed to merely potential, control over the day-to-day operations or labor relations of the other. Los Angeles Newspaper Guild, Local 69, (Hearst Corp.), 185 NLRB No. 26.13 A critical factor in determining whether separate legal entities operate as a single enterprise is the degree of common control of labor relations policies. Thus, the Board has found common ownership not determinative where requisite common control was not shown, and the Board has held with court approval that such common control must be actual or active, as distinguished from potential control. Gerace Construction, Inc., 193 NLRB No. 91. This record permits a finding of common ownership only. The evidence requires a finding that there is no interrelation of operations, no centralized control of labor relations, and no common management. Ed Macias, president, is the operating head of Macias and determines its labor relations' policy. While H. W. Bigge is president and operating head of Bigge, Holtwick, assistant manager of the Trucking Division, is in charge of labor relations for that division. The evidence would not support a finding that Macias and Bigge are a single employer, within the meaning of Board decisions. I find accordingly. 2. Collyer decision Respondent, in its brief, urges that the Board should defer to the February 17, 1971, resolution of the underlying dispute by the parties, in furtherance of its policy announced in Collyer Insulated Wire, 192 NLRB No. 150. Respondent, conceding the jurisdiction of the Board, under Section 10(a), asserts the policy of promoting industrial peace and stability through collective bargaining obliges the Trial Examiner to defer to the grievance- arbitration procedures which the parties have voluntarily established. I do not agree. In Collyer the Board found the dispute, in an alleged failure to bargain case involving unilateral changes in an 12 Drapery Manufacturing Co., Inc, 166 NLRB 805, 811. 13 Citing: Knight Newspapers, 138 NLRB 1346, enfd 332 F.2d 405 (C.A D C ). INTL. BROTHD. OF BOILERMAKERS, LOCAL 92 287 existing contract between the parties, was essentially a dispute over the terms and meaning of the contract. I find Collyer inapposite . Bigge, the Charging Party, herein, has never been a party to the contract in question. I find no merit in this contention 3. Section 8(e) violation It is undisputed that this litigation arises as the result of an effort by Respondents to acquire the work of loading and unloading penstock, and other material, at the Castaic Junction facility, which is ultimately to be installed at the Castaic jobsite. Respondents assert that the parties saw the necessity of providing for more than one field construction site in their collective-bargaining agreement and "attempted to set up a jobsite location after the final act of delivery". Respon- dents, inaccurately, assert that the final act of delivery was made at the secondary construction site, at Castaic Junction, which was established for the "specific purpose of servicing the pnmary field construction site." I have found, supra, that Bigge delivers a wide variety of construction materials, to a number of contractors, involved in numerous construction enterprises, from its Castaic Junction storage facility. These deliveries are on an as-needed basis, after storage for varying periods of time at Castaic Junction. The contention that Castaic Junction was established as part of the Castaic jobsite is without merit. Respondents, in their brief, assert that the secondary field construction site established for the specific purpose of servicing a pnmary field construction site is "on site" within the meaning of the construction industry proviso in Section 8(e).14 Respondents' contention is premised, in part, on the fact that Judd, the painting contractor, put coating material on sections of penstock and dresser couplings, at Castaic Junction. I find no merit in this contention. Charging Party and General Counsel rely on the Board decision in the Cardinal Industries case 15 in which the Board held the proviso in Section 8(e) does not encompass work which "could be done at the site of construction." The Board, in rejecting such an interpretation, asserted: The legislative history prior to passage appears to oppose rather than to support the Respondent's proposed interpretation. Thus, the House Conference Report stated the following (H. Rept. No. 1147, 86th Cong., 1st sess., p. 39): It should be particularly noted that the proviso relates only and exclusively to the contracting or subcontracting of work to be done at the site of the construction. The proviso does not exempt from Section 8(e) agreements relating to supplies and materials or other products shipped or 14 "Provided, That nothing in this subsection (e) shall apply to an agreement between a labor organization and an employer in the construc- tion 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 " 15 Ohio Valley Carpenters District Council, etc (Cardinal Industries, Inc), 136 NLRB 977, 988 otherwise transported to and delivered on the site of construction. Senator Kennedy, in reporting the conference agree- ment to the Senate, substantially concurred in the interpretation expressed in the House Report. (II Leg. Hist. 1431.) Representative Barden, in reporting the conference agreement to the House, was somewhat more explicit with respect to the precise subject at hand. He stated (II Leg. Hist. 1715): The first proviso under subsection (e) .. . permits the making of voluntary agreements .. . relating to the contracting or subcontracting of work to be done directly on the site of construc- tion. [Emphasis supplied.] The Board contrasted the language of the construction proviso with the garment industry exemption which states that it applies to manufacturers, "performing parts of an integrated process of production in the apparel and clothing industry." When this language is contrasted with the language which relates to "work to be done at the site of construction," the Board concluded that "Congress did not intend the construction industry exemption to extend to work done away from the actual site of construction, even though such work might be viewed as a part of the construction process and is of a kind that may feasibly be done at the construction site." In the Portifino Marina case 16 the Board held: The construction industry proviso to Section 8(e) applies only 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 ...." Contracts relating to work that is not to be performed at the construction site are not exempted from the application of Section 8(e) by the proviso. In the Island Dock Lumber case 17 the Board reaffirmed its finding in Cardinal Industries, supra, finding: The House Conference Report on the 1959 amendments to the Act (H. Conf. Rept. 1147, 86th Cong., 1st sess., p. 39; II Leg. Hist. 943) states with respect to the construction industry proviso: The proviso does not exempt from Section 8(e) agreements relating to supplies and materials or other products shipped or otherwise transported to and delivered on the site of construction. For the foregoing reasons, we hold that the delivery of ready-mix concrete does not come within the construction industry proviso, and that the contract with Island Dock did nbt involve subcontracting of onsite work but was in reality a contract for the delivery of materials. In the Interstate Employers case 18 the Board noted: It has been the Board's position that a contract dealing with 16 Los Angeles Building & Construction Trades Council (Portifino Marina), 150 NLRB 1590, 1592. 17 Island Dock Lumber, Inc, 145 NLRB 484, 491, enfd 342 F.2d 18 (C A. 21- i" Cement Masons, Local Union No 97 (Interstate Employers, Inc), 149 NLRB 1127, 1131 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work that is not to be performed at the construction site, is not with the protection of the proviso.19 General Counsel accurately calls attention to the fact that rule 1 and the interpretation of rule 1 , set forth. supra, are ambiguous in that they could be applied to the subcontracting of offsite work as well as restricted to the subcontracting of work to be done at the site 'of the construction, and thus come within the protection of the construction proviso to Section 8(e). If the clauses are ambiguous, the Board will not presume unlawfulness, but will consider extrinsic evidence to determine whether clauses were intended to be administered in a lawful or unlawful manner. General Teamsters, Local 982, et al. (J. K Barker Trucking Co. and Guy F. Atkinson Construction Co ), 181 NLRB 515. General Counsel accurately asserts, in his brief, that in the instant case, the intent of the parties was disclosed on or about February 17, 1971, when the acting chairman of the Employers' negotiating committee and the acting chairman of the union negotiating committee issued their binding interpretation of rule 1, holding that rule I applies to Bigge's Castaic Junction terminal . This interpretation of the rule, by these chairmen, is binding on both Macias and Respondents and this constitutes a mutual reaffirmation by the parties of the 8(e) clause in the 10(b) period in such a way as to give it future applicability to an offsite facility. General Counsel then asserts, accordingly, there has been "entering into" of an 8(e) agreement by the parties within the meaning of Section 8(e) General Counsel relies on the Board decision in the Greater St. Louis Automotive Association case,20 in which the Board held: With the passage of the Labor-Management Reporting and Disclosure Act of 1959, Congress in broad terms made the "entering into" of contracts such as Article XXIX an unfair labor practice under Section 8(e) and also made attempts to secure such contracts by threats, restraint, or coercion of any person engaged in commerce a separate unfair labor practice under Section 8(b)(4)(A). As noted, all such contracts entered into prior to and after the effective date of the amendments were made unenforceable and void. Thus, it is plain that Congress was legislating to eradicate any form, existence, or enforcement of such contracts as against public policy, with the exception as provided for the garment and construction industries. We do not think that Congress intended to leave a gap, whereby contracts executed prior to the effective date of the amendments and rendered void and unenforceable as between the parties by the passage of the amendments, would continue to be lawful agreements for unfair labor practices purposes simply because they were executed prior to the effective date of the amendments but were reaffirmed, maintained, or given effect after the effective date of Section 8(e). In the Dan McKinney case2i the Board held that the 19 Accord Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union No 631 (Reynolds Electrical and Engineering Co, Inc), 154 NLRB 67, 69 20 District No 9, International Association of Machinists , AFL-CIO, et a! (Greater St Louis Automotive Association, Inc), 134 NLRB 1354, 1359 prohibition of Section 8(e) extends beyond the mere initiation of such an obligation , and that the Respondent, by maintaining or implementing that clause , within the period covered by the charge, engaged in conduct which is violative of Section 8(e). The Supreme Court in the National Woodwork case 22 found that the adoption of a rule , identified as rule 17, to the effect that union members would not handle any door which had been fitted prior to arriving at the jobsite, was intended to protect and preserve cutting out and fitting work as unit work to be performed by jobsite carpenters, and was not within the proscriptions of either Section 8(b)(4)(B) or Section 8(e). The Court's reasoning was premised upon evidence that the work had been historical- ly done by on-site carpenters. In that case, the general contractor (Frouge) undertook to order, have delivered, and attempted to install pre-machined doors. In National Woodwork v. N.L.R.B., supra, at 630, the Court distinguished between historical work preservation and the facts in the Allen Bradley case23 which the Court characterized as a boycott carried on "not as a shield to preserve the jobs of Local 3 members, traditionally a primary labor activity, but as a sword, to reach out and monopolize all the manufacturing job tasks for Local 3 members. It is arguable that Congress may have viewed the use of the boycott as a sword as different from labor's traditional concerns with wages, hours and working conditions". This record precludes any finding that the work involved in this dispute was done historically by members of the Respondent Unions. Cusick credibly related that the Castaic Junction terminal would have been established, by Bigge, even if Bigge had failed to obtain its existing contract with Macias. This record permits no finding other than that the Teamsters employees of Bigge have per- formed the work of loading and unloading at Castaic Junction ever since its establishment. We are not herein concerned with the unloading at the Castaic Project, which all parties concede has been historically done by Boiler- makers, to the extent that any material has been delivered, or transported, on a vehicle. We are also not herein concerned with the unloading done at the jobsite, by Teamsters, of penstock, requiring a special rig, with hydraulic lift, by reason of the immensity, in size and weight, of each section of penstock. This method of transportation is relatively new, and has been performed solely by Teamsters , since its initiation. Accordingly, for the reasons set forth, I find that by entering into an agreement containing rule 1, including the interpretation of rule I as applicable to loading and unloading, as interpreted by the representatives of Macias and Respondents, in the persons of the acting chairman of the Employers' negotiating committee and the acting chairman of the union negotiating comnuttee on February 17, 1971, providing that the loading and unloading at 'Castaic Junction, should be performed exclusively by Boilermakers employees of Macias, requires Macias to 2 1 Dan McKinney Co, 137 NLRB 649, 652. 22 National Woodwork Manufacturers Association v N LR B, 386 U S 612. .23 Allen Bradley Co v Local Union No 3, 325 U S 797 INTL. BROTHD. OF BOILERMAKERS , LOCAL 92 289 cease or refrain from handling, using, selling, transporting, or otherwise dealing in any of the products of any other employer or doing business with Bigge; that the loading and unloading of penstock, or other materials, at Castaic Junction, is not work traditionally or historically per- formed on site, or by Boilermakers employees of Macias; and that by entering into, maintaining, giving effect to, and attempting to enforce the provisions of rule I in a collective-bargaining agreement in the manner found herein Respondents have engaged in unfair labor practices within the meamng of Section 8(e) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with the operations of the Employers described in section I, above, have a close, intimate, 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 thereof. V. THE REMEDY Having found that Respondents, International Brother- hood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local 92, have engaged in certain unfair labor practices within the meamng of Section 8(e) of the Act, I recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Macias-Farwell Company and Bigge Drayage Com- pany are, each, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) and Section 8(e) of the Act. Macias is a member of a multiemployer group which had entered into a collective-bargaining agreement with Respondents, identified as Eight Western States Field Construction Agreement, including the Interpretation of Rule I as Applicable to Loading'and Unloading. ' , ' 2. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local 92, are, each, a labor organization within the meamng of Sections 2(5) and 8(e) of the Act. 3. By entering into, maintaining, giving effect to, or attempting to enforce the provisions of rule 1 of their collective-bargaining agreement, including the Interpreta- tion of Rule 1 as applicable to Loading and Unloading, as 24 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations and recommended Order herein , shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions and Order , and all objections thereto shall be deemed waived for all purposes 25 In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by interpreted on February 17, 1971, as set forth supra, Respondents are engaging in and have engaged in unfair labor practices within the meaning of Section 8(e) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I issue the following recommended: 24 ORDER International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers and Internation- al Brotherhood of Boilermakers, Iron Ship' Builders, Blacksmiths, Forgers & Helpers, Local 92, the officers, agents, successors, and assigns, of each, shall: 1. Cease and desist from entering into, maintaining, or giving effect to, or attempting to enforce, the provisions of rule I of the collective-bargaining agreement between Respondents and Macias, including the Interpretation of Rule I as Applicable to Loading and Unloading, to the extent said clauses are found to be unlawful herein. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Respondents shall post at their respective business offices and meeting halls, within the geographical area covered by the collective-bargaining agreement, i.e., the States of Washington, Oregon, California, Idaho, Utah, Nevada, Arizona, and Alaska, copies of the attached notice marked "Appendix." 25 Copies of said notice, to be furnished by the Regional Director for Region 31, shall, after being duly signed by a representative or representa- tives of Respondents, be posted by Respondents, immedi- ately upon receipt thereof, and be maintained, by each, for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail, to the Regional Director for Region 31, sufficient copies of said notices for posting by Macias and Bigge where notices to the employees of each are customarily posted, if either of said employers are willing so to do. (c) Notify said Regional Director, in writing, within 20 days from the date of the receipt of this Trial Examiner's Decision what steps each Respondent has taken to comply herewith.26 It is further recommended that unless, on or before 20 days from the date of the receipt of this Trial Examiner's Decision, Respondents shall, each, notify the said Regional Director that each will comply with the foregoing recommended Order, the National Labor Rela- Order of the National Labor Relations Board " shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 26 In the event this recommended Order is adopted by the Board, this provision shall be modified to read . "Notify said Regional Director, in writing, within 20 days from the date of the receipt of this Order, what steps each Respondent has taken to comply therewith " 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions Board issue an order requiring said Respondents to take the aforesaid action. Dated By INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS & HELPERS (Union) APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT enter into, maintain, give effect to, or attempt to enforce, the provisions of rule 1, of our collective-bargaining agreement with Macias-Farwell Company, including the Interpretation of Rule I as Applicable to Loading and Unloading, or the interpre- tation of said rule, issued February 17, 1971, by the acting chairman of the Employers' negotiating commit- tee and the acting chairman of the union negotiating committee, to the extent that said clause has been asserted to be applicable to loading and unloading of materials at the Castaic Junction terminal of Bigge Drayage Company, by reason of said interpretation having been found to be violative of Section 8(e) of the National Labor Relations Act. Dated By (Representative) (Title) INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS & HELPERS, LOCAL 92 (Union) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Federal Building, Room 12100, 11000 Wilshire Boulevard, Los Angeles, California 90024, Telephone 213-824-7371.