Local 282 Teamsters

LOCAL 282, TEAMSTERS Local Union No. 282, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America ' and D. Fortu- nato, Inc. and The Cement League and its Mem- ber-Employers, Parties to the Contract , and Build- ing Contractors Employers Association, Inc. and its Member-Employers, Parties to the Contract Local Union No. 282, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America and C. K. Refiner, Inc. and Remsco Associates, Inc. Cases 29-CC-230, 29-CC-231, 29-CE-10, 29-CB-738, 29-CC-243, 29-CE- 13, and 29-CC-248. June 16, 1972 DECISION AND ORDER On September 15, 1971, Trial Examiner James V. Constantine issued the attached Decision in this proceeding. Thereafter, the General Counsel, the Respondent, and D. Fortunato, Inc., filed exceptions and supporting briefs.2 The National Labor Relations Board has consid- ered 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,3 and conclusions only to the extent consistent herewith. The underlying issue in this consolidated proceed- ing is whether section 9 of Respondent's "High Rise Contract 1969-1972" (herein also called the high rise clause) which requires, essentially, that the driving of all trucks to, from, or on construction sites be performed by employees represented by Respondent, violates Section 8(e) of the National Labor Relations Act, as amended. Ancillary issues involve Respon- dent's conduct vis-a-vis the charging parties; to wit: whether Respondent's picketing of D. Fortunato, Inc. (herein called Fortunato), to force Fortunato to sign the high rise agreement, at a time when Fortunato already had a current excavating contract with Respondent, violated Section 8(b)(3) and 8(b)(4)(i)(ii)(A) and (B) of the Act; whether Respon- dent's picketing of C. K. Rehner (herein called Rehner) was to force Rehner to implement the high rise clause and whether such picketing also was for an object proscribed by Section 8(b)(4)(i)(ii)(B) of the Act; and, whether Respondent's conduct in seeking 1 Herein called Respondent or Local 282 2 The request of D Fortunato, Inc , for oral argument is hereby denied In our opinion, the record, including the exceptions and briefs, adequately presents the issues and positions of the parties 3 The Respondent has 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 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 find no basis for reversing his findings. 197 NLRB No. 124 673 to compel Remsco Associates, Inc. (herein called Remsco), to reassign certain driving work to employ- ees represented by Respondent violated Section 8(b)(4)(i)(ii)(B) of the Act. FACTS 1. The high rise agreement The disputed clause appears as section 9 in the "High Rise Contract 1969-1972" between Local 282; The Cement League; the Building Contractors Employers Association, Inc. (herein called BCEA); 4 and individual employers engaged in the building and construction industry in New York City and Nassau and Suffolk Counties. It is quoted in full in the Trial Examiner's Decision, infra, and requires, in pertinent part, that: A. The driving of all trucks on the work site, or entering or leaving the work site, shall be performed by employees of the Employer covered by this Agreement, or by employees of another employer who receives terms and conditions of employment at least as favorable to employees as thus [sic] set forth in this Agreement, provided that trucks making deliveries to the work site directly from suppliers located outside the New York Metro- politan Area may make one drop without comply- ing with this provision... . B. The Employer will immediately notify the Union of all jobs on which it will work and shall further notify the Union within 30 days of awarding the subcontract or supply contract the name address of the sub-contractor or supplier and such notification shall in all cases be made to the Union prior to the commencement of work by the sub-contractor or supplier. In addition, the Employer will notify the sub-contractors and suppli- ers of this section and shall write same into the sub- contract or purchase order. C. On all jobs with a total gross building cost of at least $40,000,000 the Employer will at the time of giving the above 30 days notice arrange to hold a pre job conference with the Union to consider methods of assuring compliance with this Section 9. [Emphasis supplied.] None of the Charging Parties are members of the 4 The Cement League and the BCEA are 2 of the 21 construction industry employer associations affiliated with the Building Trades Employ ers' Association of the City of New York (herein called BTEA) The BTEA, an association of associations, exists to promote, foster, and protect the interests of employers in the building and construction industry Its constitution and bylaws require that "All Members shall be bound by the provisions of all Trade Agreements made by their Trade Association represented on the Board of Governors and by other Trade Associations represented on the Board of Governors " The BTEA and its member associations are parties in interest in this proceeding 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signatory associations and none have signed the high rise agreement individually.5 a. Background Respondent concedes that the high rise agreement was first negotiated in 1968 in response by Local 282 to a continuing 10-year decline in its membership6 which, it asserts, was due to a corresponding loss of job opportunities for Local 282 members in the construction industry . Thus, John Cody, vice presi- dent of Local 282, testified that in the past driving on construction jobs was "usually " performed by the general contractor's employees, represented by Local 282, and that these employees did the intrasite driving for all of the trades performing subcontract- ing work on the site . The drivers' work, according to Cody, included moving materials by truck or trailer from one area of the construction site to another (called "Jockeying"); delivering supplies from their employer's warehouse or local suppliers to the job; and transporting their employer's supplies and equipment from one jobsite to another. In addition, Cody testified that in the past most building materials were available through local suppliers and delivered to the jobsite by employees represented by Local 282. Cody blamed the gradual attrition of work alleged- ly done previously by Local 282 members on changes in the industry, the Respondent's inability properly to police its many and varied contracts, and the inapplicability of many of these contracts to the work which signatory employers were actually performing, notably high rise construction. As examples, Cody noted that many building materials and supply firms, which previously employed Local 282 drivers, had moved or gone out of business entirely as the industry increasingly used newer prefabricated materials, made outside the New York metropolitan area and shipped directly by the manufacturer to the contractor at the jobsite; and that many subcontractors were using their own craft employees to drive men and materials to, from, and around construction sites where they were otherwise performing craft work . Cody further testified that to remedy this situation and recoupe for its members some of the work previously done by them, Local 282 negotiated the original high rise agreement (known as the "Metropolitan Building Contractors Associa- tion 1968-1969 Contract") which intended to make general contractors responsible for all driving to, from, and on their jobsites. This agreement, as 5 C K Refiner is a member of the Association of Contracting Plumbers of the City of New York and the Mechanical Contractors Association of the City of New York, both of which belong to the BTEA Respondent contends that Rehner, by virtue of its membership in the foregoing associations, was bound by BTEA's constitution and bylaws (see fn 4, supra) subsequently renewed in negotiations between Local 282, The Cement League, and BCEA, is the current High Rise Contract 1969-1972. In February 1970, Respondent's monthly newslet- ter to its membership described the high rise clause and noted its significance in light of Local 282's impending organizing drive: The arrival of Spring will be the signal for an all-out drive by Local 282's Business Agents and Organizers to consolidate recent achievements and make further organizational inroads in the Hi-Rise construction field. 282's organizational spurt will be in keeping with the spirit-and the letter-of Section IX of the Local's Hi-Rise agreement which makes the general contractor responsible for all trucking to, from and on the job site. Hundreds of jobs hang in the balance under the terms of this key clause and every 282 cardholder can benefit handsomely if we insist upon strict adherence to the con- tract. .. . Jobs-more jobs for 282 members-are the pivotal question here. . . . Section IX is a contract clause that may yet prove a union landmark. . . . When stripped down to its lean language, it offers a shield to every Local 282 member against the inroads that other uni,, and non-union outfits would like to make ag• _st 282's jurisdiction and safeguards every member's livelihood against all encroach- ments by cheap on-site labor. Said Cody: "With pre-casts of every conceiva- ble description gobbling up work opportunities of Local 282 men, we had better get busy and stake out our claims to every on-site trucking and jockeying job in the Hi-Rise field. . . . With the cooperation of our membership, Local 282 can and will enforce this contract to the letter and thereby create more jobs for our people." b. Contentions and Trial Examiner's finding The Respondent contends that the high rise clause is a lawful primary work preservation provision of the type upheld in National Woodwork Manufacturers Association v. N.L.R.B., 386 U.S. 612, as it seeks only to preserve for unit employees work traditionally done by them and to prevent signatory employers from subcontracting such work. Respondent further contends that the clause covers work which can only be performed at the site of construction and, therefore, is exempt from the proscriptions of Section and, therefore, was also required to honor the high rise agreement. 6 During the last 10 years, according to Cody, the Union 's membership declined from approximately 7,200 to its present level of about 5,400 members LOCAL 282, TEAMSTERS 675 8(e) by the construction industry proviso thereof. And, finally, Respondent contends that the clause covers work which, in any event, is "fairly claimable" by the unit employees since it has either been previously done by them or is so similar and related to their normal work that they may lawfully claim it for themselves and preserv e it under the rationale of Meat and Highway Drivers, Local 710 [Wilson & Co.] v. N.L.R.B., 335 F.2d 709 (C.A.D.C.). The General Counsel and Fortunato, on the other hand, contend that the disputed clause is an unlawful work acquisition provision as it covers work not now or previously performed by employees in the several bargaining units allegedly seeking to preserve such work, and that the work, therefore, also is not "fairly claimable" by them. For these reasons, the General Counsel and Fortunato contend, the clause is not intended to protect unit work for unit employees but seeks to benefit Local 282 members generally by expanding work opportunities for them within the overall geographic area of Respondent's jurisdiction. Finally, the General Counsel and Fortunato contend that the clause in its entirety is outside the protection of the construction industry proviso to Section 8(e) and they point to the fact that it covers the work of driving suppliers' trucks "entering or leaving" con- struction sites for the purpose of effecting deliveries. The Trial Examiner found that the high rise clause is a primary work preservation provision and, therefore, outside the reach of Section 8(e) of the Act. For the reasons discussed below, we disagree with the Trial Examiner's conclusion. Our basic disagreement with the Trial Examiner stems from his failure to bottom his conclusion on an analysis of the work covered by the clause in light of the work traditionally done by the unit employees here seeking its protection. Such an examination and analysis is essential to a determination of legality under Section 8(e) and 8(b)(4)(B).7 c. The work covered by the high rise agreement The scope of the high rise clause appears clear on its face and covers a myriad of work: (1) The driving of suppliers' trucks "entering or leaving" the worksite. (2) The driving of subcontractors' trucks delivering 7 National Woodwork'Manufacturers, supra 8 General Teamsters, Local 982 (J K Barker Trucking Co), 181 NLRB 515, 517-518, and case there cited, enfd 450 F 2d 1322 (C A.D.C.) 9 Note, for example, the "one drop" exemption permitted trucks making deliveries from suppliers located outside of Local 282's geographic jurisdiction, which materials may then be jockeyed only by Local 282 members Further evidence of Section 9's intended reach is found in its paragraph B, requiring the signatory contractor to notify Local 282 of all jobs on which it will work, to provide the names and addresses of all subcontractors and suppliers it intends to use, to advise subcontractors and materials, tools, and personnel to the worksite or jockeying materials, personnel, and tools between locations on the worksite. (3) The driving of general contractors' trucks carrying materials, personnel, and tools "entering or leaving" the worksite or jockeying materials, person- nel, and tools between locations on the worksite. The Board has frequently held that driving to and from construction sites for the purpose of effecting deliveries does not constitute on-site work and, hence, is not protected by the construction industry proviso of Section 8(e).8 Although the Union argues that the disputed clause is not intended to cover offsite work, the broad language of section 9, as well as the record evidence of its intent, belies this contention .9 d. The units claiming protection of the work The several bargaining units 10 involved here, in which the Union asserts a right to protect the above- described work, consist of employees of Fortunato, Walsh Construction Co., Inc. (herein called Walsh), Remsco, Rehner, and employer-members of The Cement League and of BCEA. The record evidence as to the work now and traditionally performed by employees, in, these units shows as follows: (1) Fortunato is the general contractor at the Hempstead High School construction site, where it is doing the excavation, concrete, and carpentry work. It employs, among others, two drivers who are represented by Respondent and covered by Respon- dent's separate excavating contract with Fortunato. These drivers operate Fortunato's dump trucks to move materials and fill from one location on the jobsite to another. On rare occasions these drivers also deliver small amounts of materials from Fortu- nato's suppliers to the jobsite or move the employer's materials and tools from one jobsite to another. The drivers spend about 90 percent of their time on the jobsite where their work is divided equally between doing excavating and driving work. At no time have Fortunato's drivers operated the trucks of its suppli- ers or subcontractors. Rather, all such trucks routinely are driven to, from, or on Fortunato's jobsites by employees of the suppliers and subcon- tractors. Respondent picketed the jobsite with signs suppliers of the high rise clause ; and to "write same into the sub-contract or purchase order " (Emphasis supplied ) In addition, paragraph C requires the signatory employer, on jobs costing $40 million or more, to hold a prejob conference with Local 282 to consider methods of assuring compliance with section 9. iO The "bargaining unit" for which a union may lawfully seek to preserve work for its members has been defined as the same unit for which separate collective bargaining occurs, whether it consists of the employees of a single employer, or a multiemployer association . United Mine Workers, 165 NLRB 467,468 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD claiming that Fortunato does not have a contract with Local 282. (2) Walsh is the general contractor for construction of the Silver Lake Park Water Storage Tanks (herein called Silver Lake) where it employs drivers who are represented by Local 282 and are covered by Walsh's separate excavating contract with Respondent. These drivers, using Walsh's trucks, perform the jockeying of materials on the worksite for Walsh and several, but not all, of its subcontractors. They do not, however, take over the driving of suppliers' or subcontractors' trucks on the site. Thus, the electri- cians employed by Walsh's electrical subcontractor drive their employer's trucks to, from, and on the Silver Lake site. Walsh's mechanical plumbing subcontractor at this site is Remsco Associates, discussed below. Walsh is also the managing contrac- tor at the South Beach Psychiatric Center (herein called South Beach) construction site, where C. K. Rehner, also discussed below, has a prime contract to install the interior plumbing. Walsh itself performs no construction work and has no drivers at this site. (3) Remsco, as noted above, is Walsh's subcontrac- tor at the Silver Lake site for the installation of mechanical plumbing and piping systems and related services. All of Remsco's employees are plumbers, covered by a collective-bargaining agreement with Plumbers Local 371.11 Remsco, as has been its practice on all jobs for 50 years, used a pickup truck to transport its employees, as well as small materials and tools, to, from, and on the Silver Lake site. This truck is driven by a Remsco employee or supervisor. After Respondent protested to Walsh and Remsco about this practice in March and April 1970, Remsco's employee would drive the pickup truck up to the worksite. From there Remsco's employees would carry the small materials and tools onto the site by hand or by wheelbarrow. When Remsco's field superintendent once more drove the Remsco truck onto the site, Respondent told Remsco in the presence of Walsh 12 that this violated Walsh's contract with Local 282 and that if Walsh continued to permit plumbers to drive on the site, Walsh would not get any concrete on the job. Remsco then agreed to Walsh's suggestion that it allow Walsh's trucks and drivers to perform its onsite driving. However, 11 Local 371 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefittmg Industry of the United States and Canada. 12 Although the Trial Examiner found that this statement by a Local 282 representative, Devito, was made to Remsco and not to Walsh, the record establishes that it was uttered in the presence of a Walsh representative, Mariano, at Walsh's field office trailer In any event, it may fairly be deduced that Walsh learned of this threat since, immediately after it was uttered, representatives of Walsh and Remsco met and agreed that Remsco's materials would be jockeyed by Walsh's trucks and dnvers. 13 The Trial Examiner accepted an offer of proof, made by the General Counsel, respecting the practice among the remaining Cement League and BCEA members who did not testify , as follows - Of the Cement League after Plumbers Local 371 protested to Remsco about Walsh's drivers doing their work, Remsco reverted to the hand carrying and wheelbarrow method of jockeying materials around the jobsite. (4) Refiner is also in the plumbing and heating business, employing plumbers and laborers, the former covered by a contract with Plumbers Local 371. As noted above, Rehner is a prime contractor at the South Beach jobsite (where Walsh is the managing, but not the general, contractor). Consist- ent with its 40-year past practice, Rehner used a pickup truck, driven by its superintendent or by a plumber, to transport its men and materials to, from, and on the job. When Rehner first brought its own truck to the jobsite, Respondent complained to Rehner as well as to Walsh that using a plumber to drive the truck violated certain agreements with Local 282 to which Rehner assertedly was bound and that unless Rehner used a teamster on its truck, Respondent would have to remove some of its drivers from the job and to picket the job. Respon- dent picketed the jobsite on June 2, 3, and 4, 1970, with signs identifying Rehner as the primary employ- er. (5) The Cement League, consisting of 36 member contractors, and the BCEA, consisting of 51 member contractors, are signatories to the high rise agree- ment. As more fully set forth in the Trial Examiner's Decision, representatives of 9 Cement League mem- bers and 14 BCEA members testified concerning their practices with respect to construction site driving. This testimony reveals that many contractors use no trucks and employ no drivers; some use trucks but do not employ Local 282 drivers; others use trucks and employ Local 282 drivers to transport their tools and equipment from yard to jobsite or between jobsites. All of the contractors who testified stated that when they subcontract work, the subcon- tractors provide their own trucks and drivers and when they purchase materials and supplies, the vendors make delivery to the site in their own trucks driven by their own employees. These contractor representatives further testified that their drivers do not take over the driving of subcontractors' or suppliers' trucks.13 With respect to the contractors who do not now employ Local 282 drivers, there is members who did not testify, six would testify that they never use trucks on their jobs , seven would testify that they use trucks, but do not employ Local 282 dnvers; and eight would testify that they use trucks and employ Local 282 drivers to transport supplies and materials from point to point on vanousjobsites. Of the BCEA members who did not testify , I I would testify that they have no trucks and employ no Local 282 drivers; I I others would testify that they operate one or more trucks which are driven by employees who are not members of Local 282, and 2 would testify that they have trucks and employ Local 282 drivers and that these trucks are used for utility work and the removal of debris and to transfer equipment from jobsite to jobsite All of the Cement League and BCEA members who did not testify would testify that their purchases of supplies and materials are LOCAL 282, TEAMSTERS no evidence as to whether or not they did so in the past. e. Discussion It is well settled that Section 8(e) and 8(b)(4)(B) of the Act were not intended to, and do not, outlaw contract provisions or conduct which seeks to preserve for employees in the bargaining unit work which they have traditionally performed.14 Similarly, these sections also do not proscribe agreements or conduct aimed at recapturing or reclaiming for unit employees work which they previously performed or which otherwise constitutes "fairly claimable" work.15 However, it is equally well established that agreements and conduct intended to protect, pre- serve, acquire, or reclaim work for union members generally (i.e., outside the immediate bargaining unit) violate both Section 8(e) and 8(b)(4)(B) of the Act on the theory that they exceed the legitimate interests of the unit employees vis-a-vis their own employer and are therefore tactically calculated to satisfy union objectives elsewhere.16 The high rise clause, in our opinion, falls within the latter category. In the instant case, the employees in the above- described work units do not now perform, and have not previously performed for their employers, a substantial portion of the work which Local 282 assertedly seeks to safeguard for them. Thus, employees covered in Respondent's separate bar- gaining agreements with the Cement League, BCEA, Fortunato, and Walsh do not drive suppliers' trucks "entering or leaving" their employers' construction sites for the purpose of making deliveries. They also do not drive subcontractors' trucks to transport the subcontractors' personnel, tools, and materials to, from, and on their employers' construction projects. To the contrary, such work is done, and has traditionally been done, by employees of the suppli- ers and subcontractors who are outside the work units for which the Respondent is allegedly seeking to protect the work. delivered to their jobsites by vendors who use their own trucks and dnvers; that when they subcontract work the subcontractor provides his own truck and drivers , and that their drivers do not take over the operation of any trucks of any vendors or subcontractors 14 National Woodwork Manufacturers Association v. N L.R B, 386 U S. 612 Since the clause there was found to have a lawful work preservation objective, the Court expressed no opinion on "the questions which might arise where workers carry on a boycott to reach out to monopolize jobs or acquire new job tasks when their own jobs are not threatened by the boycotted product " Id, at 630-631 However, the Court, at 644-645 of its opinion, said The determination whether the [disputed clause ] and its enforce- ment violated Section 8(e) and Section 8(b)(4)(B) cannot be made without an inquiry into whether, under all the surrounding circum- stances, the Union's objective was preservation of work for [the unit] employees, or whether the agreements and boycott were tactically calculated to satisfy union objectives elsewhere . . The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer vis-a-vis his own employees. 677 In light of these facts, we find that the disputed clause here is unlike that in National Woodwork, supra, where the union's sole objective was the protection of traditional unit work of unit employees from diminution as the result of changes in technolo- gy. It is also clear, and we find, that the high rise clause was not intended, as was the clause in Wilson & Co., supra, to recapture or reacquire work which the unit employees had actually performed in the past and which was lost to them as a result of their employers' partial relocation of operations. Rather, we find that the clause was intended to benefit all Local 282 members within the geographic area of Respondent's jurisdiction. Thus, the record shows that the clause was negotiated not only to safeguard unit work but, much more importantly, to recapture and preserve work which, Respondent claims, Local 282 members have traditionally performed for employers engaged in all phases of the building and construction industry-including general contrac- tors, subcontractors, and suppliers-in the New York metropolitan area. To achieve this end-and to reach subcontractors and suppliers who do not now employ Local 282 drivers-the high rise agreement makes general contractors responsible for all driving to, from, and on their construction sites. The evidence, including the requirement that the high rise clause be incorporated by signatory employers into their subcontracts and purchase orders, further demonstrates that Local 282 was not so much interested even in expanding the work of unit ,employees as in making sure subcontractors and suppliers employ Local 282 drivers. In these circum- stances, it cannot be found that the clause was addressed to the labor relations of the contracting employers vis-a-vis their own employees. Respondent also contends that the clause covers work which can only be performed at the site of construction and which is, therefore, protected by the construction industry proviso. This contention is contradicted by the evidence and lacking in merit. [Footnotes omitted ] Among the considerations deemed relevant by the Court are: (1) the remoteness of the threat of displacement by the banned product or services, (2) the history of labor relations between the union and the employers who would be boycotted ; and (3) the economic personality of the industry 15 Meat and Highway Drivers, Local 710 [Wilson & Co.J v. N LR B, 335 F 2d 709 (C A.D C.); Retail Clerks ' Union, Local No 648 (Brentwood Markets, Inc), 171 NLRB 1018, cf, International Longshoremen 's Associa- tion, Local 1248, AFL-CIO (U.S. Naval Supply Center), 195 NLRB No. 41 16 Sheet Metal Workers Union, Local 216 (Associated Pipe and Fitting Manufacturers), 172 NLRB No 6, Local Union No 98, of the Sheet Metal Workers' International Association (Cincinnati Sheet Metal and Roofing Company), 174 NLRB 104, enfd. 433 F.2d 1189 (C.A.D C); Local Union No 141 of the Sheet Metal Workers' International Association (Cincinnati Sheet Metal Engineering Company), 174 NLRB 843, enfd. 425 F.2d 730 (C A 6), Baltimore Lithographers (Alto-Gravure), 160 NLRB 1204, cited with approval in National Woodwork, supra, fn 41; New York Lithographers (Alto-Gravure) 160 NLRB 1222, enfd 385 F.2d 551 (C A. 3). 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The clause expressly covers the driving of delivery trucks as well as the driving of subcontractors' trucks bringing tools, materials, and personnel to and from the site of construction. Such driving work has consistently been held to be outside the proviso's protection.17 Finally, we also reject Respondent's argument that the work covered by the clause is, in any event, "fairly claimable" by the unit employees since it is similar to, and requires like skills as, the work which unit employees now and traditionally perform. As already indicated, the driving work which the unit employees here perform is considera- bly more limited than that which they seek to preserve. The fact that the driving of one truck may well be similar to, and require like skills as, the driving of any other truck does not persuade us that all driving work is therefore "fairly claimable" by a unit of drivers. We are unable to find that the circuit court's discussion in Wilson & Co., supra, on which Respondent relies, ever intended such a result, particularly where, as here, the clause seeks protec- tion of work historically performed by employees in other work units.18 Thus, we can find no more justification for concluding that the driving work traditionally done by Rehner's or Remsco's employ- ees is "fairly claimable" by Walsh's drivers than for concluding the opposite. In sum, and for the reasons discussed above, we find that the object of the high rise clause was not limited to the labor relations of the contracting employers vis-a-vis their own employees but was tactically calculated to achieve union objectives elsewhere. Accordingly, we find that the clause in the circumstances here violates Section 8(e) of the Act. This is not to say, however, that a properly drafted clause might not be found lawful. Our findings here are limited to the facts of this case, and we do not consider whether a contract provision which is limited to onsite driving might not be appropriate. 2. The 8(b)(3) issue-as to Fortunato For the reasons fully set forth by him, we agree with the Trial Examiner's finding that Respondent violated Section 8(b)(3) of the Act by failing to execute its 1969-1972 excavating contract with Fortunato after full agreement on its terms had been reached by the parties and after Fortunato had signed the agreement,19 and by subsequently picket- 17 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 294 (Island Dock Lumber, Inc), 145 NLRB 484, 490-491, General Teamsters, Chauffeurs, Warehousemen and Helpers, Local 982 (J K Barker Trucking Co), 181 NLRB 515, 517-518, enfd 450 F 2d 1322 (CAD C ), International Brotherhood of Electrical Workers, Local 1186, AFL-CIO (Pacific Electrical Contractors' Association, et al), 192 NLRB No 43, In 1, Teamsters, Chauffeurs, Warehousemen & Helpers Local Union No 631 (Reynolds Electrical and Engineering Co, Inc), 154 NLRB 67, 68-69 ing Fortunato to force it to sign Respondent's high rise agreement. Such picketing at a time when Fortunato had a current contract and was under no obligation to bargain about a new agreement also violated Section 8(d) of the Act. 3. The 8(b)(4) issues-conduct to obtain and implement the high rise clause Having found, contrary to the Trial Examiner, that section 9 of the high rise agreement violates Section 8(e) of the Act, we turn to consideration of whether Respondent's conduct in seeking to compel its execution and/or implementation at various jobsites violated Section 8(b)(4)(i)(ii)(A) and (B) of the Act. a. As to Fortunato, we agree with the Trial Examiner's finding that Respondent's picketing of Fortunato was to force Fortunato to enter into the high rise agreement. However, as we have found that section 9 of that agreement is unlawful under Section 8(e) of the Act, we further find, contrary to the Trial Examiner, that Respondent's picketing to force Fortunato to agree thereto violated Section 8(b)(4)(i)(ii)(A) of the Act. In addition, the record shows that the picketing was not directed solely toward Fortunato but sought to enmesh neutral employers and employees. Thus, on March 9, 1970, Respondent's business representa- tives, Robert Sasso and George Becker, told Fortu- nato's job superintendent at the Hempstead site, Donald Pope, that since Fortunato did not have a contract with Local 282, Respondent would have to shut the job down. On the following morning, Fortunato's two drivers picketed at the only entrance to the jobsite with signs stating "D. Fortunato, Inc. refuses to sign a new contract. Strike ...." Later that morning, Fortunato's carpenter foreman, Klisch, spoke to Local 282 Representative Becker and Carpenter's Job Steward Rossen. Although an employee of Fortunato, Rossen acted as steward also for the carpenters employed by Afco Construction 20 and John S. Parnon Construction Corp. (herein called Afco and Parnon, respectively) at the Hemp- stead job. When Klisch asked Rossen if the carpen- ters, who had already entered the site, would continue to work, Rossen replied that he had not, been told otherwise. At this point Becker told Rossen to call the Carpenters business agent, Hartigan, because Hartigan "would respect his [Becker's] 18 U S Naval Supt !v Center, supra. 19 Warehousemen 's Union Local 17, International Longshoremen's & Warehousemen 's Union (Los Angeles By-Products Co.), 171 NLRB 1244, 1250, enfd 451 F 2d 1240 (C A 9) 20 Although Afco Construction was not specifically named in the complaint, the facts concerning it were fully litigated at the hearing and, in any event, no exceptions were taken to the Trial Examiner's findings with respect thereto LOCAL 282, TEAMSTERS picket line." Rossen then called Hartigan and the latter told him "the carpenters were leaving at 12 o'clock." At noon on March 10 the carpenters employed by Fortunato, as well as by Parnon and Afco, walked off the job and, although they subsequently worked for 2 days, they remained off until the picketing ended on March 20. On March 20, Fortunato's principals attended a meeting at the Hempstead field office trailer with Messrs. Becker and Sasso. Also present were "a large number of the business representatives from various Long Island unions," as well as the president and the counsel of the Building Trades Employers' Associa- tion of Long Island,21 an employer association with which Fortunato is affiliated. After considerable discussion about how the picketing might be halted, Local 282 offered to remove the pickets if "the Building Trades Employers Association of Long Island would sit down and talk about the hi-rise contract with the Teamsters." Fortunato discussed this proposal with the Association's representatives who were present and they agreed to go along with it. Immediately thereafter, the pickets at the Hempstead site were removed. Also in the course of the above March 20 meeting, Becker complained that Panner Iron Works, Fortunato's structural steel subcontrac- tor at the Hempstead job, did not employ "union truck drivers." When Fortunato contradicted this assertion, Becker replied that the drivers were not members of Local 282 and that "the jockeying of such trucks on the job site is the work of members of 282, not other Teamster unions." Based on the foregoing, we find that an object of Respondent's picketing and its threat to shut down the Hempstead job was to enmesh neutral employees and their employers in Respondent's primary dispute with Fortunato. Thus, we find that Respondent, through Becker, induced and encouraged employees of Afco and Parnon, with whom Respondent had no dispute, to refuse to perform services for their respective employers and by such conduct Respon- dent also threatened and coerced Afco and Parnon- with an object in either case of forcing or requiring Afco and Parnon to cease doing business with Fortunato. By the foregoing conduct, we find that Respondent violated Section 8(b)(4)(i)(ii)(B) of the Act. b. Remsco-Silver Lake project: As stated, Rem s- co is the mechanical subcontractor at the Silver Lake job where Walsh is the general contractor. Remsco's employees are plumbers and are covered by a contract with Plumbers Local 371. As has been its practice, Remsco used a pickup truck to transport small materials, tools, and personnel to, from, and on 21 This association is not affiliated with BTEA 22 It was agreed that Remsco would reimburse Walsh only if the Board 679 the construction site . Such truck is traditionally operated by a Remsco foreman or a plumber, a member of Local 371. As a result of a dispute arising from Respondent's claim that, under its excavating contract with Walsh, all driving work at the jobsite belonged to Local 282, a meeting was held in April 1970 among representatives of Local 282 (DeVito), Local 371 (Schabert), Remsco (Sampson and Mel- ville), and Walsh (Mariano). In the course of this meeting, Remsco and Local 371 took the position that Remsco's employees had always driven their employer's truck to, from, and on construction jobs and that they intended to continue that practice. Respondent, on the other hand, claimed that its contract with Walsh gave this work to Local 282 drivers employed by Walsh and that Respondent would not permit members of any other union to take it from them. Respondent's representative, DeVito, also said that if plumbers were permitted to drive on the jobsite, Walsh would not get any concrete. Immediately following this meeting, Rems- co agreed to permit Walsh's trucks and drivers to perform Remsco's onsite jockeying for which Rems- co conditionally agreed to - reimburse Walsh.22 It is clear from the foregoing that Respondent's primary dispute was with Remsco because the latter did not employ a Local 282 driver on its truck. In these circumstances, Walsh was in the position of a neutral secondary employer and Respondent's threat to ban concrete deliveries to Walsh therefore was unlawful secondary activity to force Walsh to cease doing business with Remsco until the latter acceded to Respondent's demands. Such conduct is clearly violative of Section 8(b)(4)(ii)(B) of the Act. Respondent, however, contends that it was entitled to the work by virtue of a no-subcontracting clause in its contract with Walsh. We disagree. In the first place, Remsco was using its truck for purposes other than mere onsite jockeying; namely, to transport tools, materials, and personnel to and from the jobsite. In the second place, a contract provision which purports to claim work traditionally done by employees represented in another work unit violates Section 8(e) of the Act.23 However, even assuming, arguendo, that Respondent had a primary contract dispute with Walsh, we would nevertheless find that Respondent violated Section 8(b)(4)(ii)(B) by coerc- ing and interfering with Remsco's operations. c. C. K. Rehner-South Beach project: As indicated above, Rehner is a prime contractor performing interior plumbing work at the South Beach project, where Walsh is the managing contrac- tor. No contractual arrangement exists between Walsh and Rehner, and Walsh has no construction here finds that Walsh's drivers were entitled to perform the work. 23 U S Naval Supply Center, supra. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees at the site. Rehner, like Remsco, employs plumbers and has a contract with Plumbers Local 371. Consistent with its long practice, Rehner used a pickup truck, driven by its superintendent or by a plumber, to transport its men, tools, and small materials to, from, and on the South Beach job. When Rehner first brought its truck to the jobsite in May or June 1970, Respondent's business represent- ative, DeVito, complained to Rehner's plumbing foreman, Curto, that Rehner "needed a Teamster to drive the truck." Although Curto explained that the truck was used only to transport him and Rehner's employees to various parts of the jobsite, DeVito replied that "it didn't make any difference, [Rehner] needed a Teamster on the truck," and that "all trucks on the job were to have Teamsters on them." DeVito explained that this requirement was in "an agreement book" between contractors and Local 282 to which, DeVito claimed, Rehner was bound.24 DeVito further said that unless Rehner "put a teamster on the truck" Respondent would picket the job. Curto promised to convey this message to Rehner and, a few days later, on June 1, Curto told DeVito that Rehner's response was to "carry on as usual." DeVito thereupon remarked that he "would stop the job." A day or two later, Walsh's project manager, Luster, and DeVito called on Curto. Luster said that DeVito had a complaint against Curto. DeVito then insisted that "the agreement called for a Teamster on every truck on the site." Continuing, DeVito said that if Curto did not put a teamster on Rehner's truck, Respondent would have to remove some teamsters from the job and "would picket the place." On the following morning, June 2, 1970, DeVito asked what decision Rehner had reached as to who would drive Rehner's truck. Curto replied that he was not authorized to hire a teamster on the truck. Thereupon, about 7:50 a.m., DeVito set up picket signs at all entrances to the project. These signs boldly identified Local 282 and, in fainter handwrit- ten letters, named Rehner as the employer in the dispute. However, on one such sign Rehner's name was so faint as to be virtually invisible. The picketing continued until June 4 when Respondent removed the pickets on Rehner's promise to seek withdrawal of its unfair labor practice charges herein. Based on the foregoing, we find that Respondent's threat to picket and picketing at the South Beach job was to force and require Rehner to give effect to, or implement, the high rise agreement by hiring a Local 282 driver for its truck. By such conduct, we find Respondent violated Section 8(b)(4)(i)(ii)(A) of the Act. Respondent argued that Rehner, by virtue of its membership in two employer associations affiliated 24 This reference apparently was to Rehner's alleged derivative member- ship in BTEA. See In 5, supra with BTEA, was required, under BTEA's constitu- tion and bylaws, to honor Respondent's high rise agreement. Having found, however, that the relevant provision of that agreement violates Section 8(e), we find that the picketing violated Section 8(b)(4)(A) regardless of what, if any, obligation Rehner might otherwise have had, through BTEA, to honor such agreement. In addition, we find that Respondent's conduct at the South Beach job went beyond its primary dispute with Rehner and had a further object of entangling Walsh, a neutral employer, in support of such dispute. Thus, DeVito repeatedly threatened to picket "the job," and to "stop the job," and to "picket the place" if Rehner did not hire a Local 282 driver. This language shows that Respondent's object was not merely to stop Rehner's operation, but to stop the entire project of which Walsh was the managing contractor. Further, Respondent directly appealed to Luster, Walsh's representative at the site, to intercede in its dispute with Rehner and, in the presence of Luster, threatened to "picket the place" if Rehner did not put a teamster on its truck. We find, in agreement with the Trial Examiner, that the foregoing statement threatened, coerced, and re- strained Walsh in violation of Section 8(b)(4)(ii)(B) of the Act. In so finding, however, we consider irrelevant the fact that no contractual relationship existed between Walsh and Rehner. We further find, contrary to the Trial Examiner, that Respondent's threat to Walsh also unlawfully threatened, coerced, and restrained Mental Hygiene Corp., owner of the South Beach project. We base our finding on the fact that Walsh, as managing contractor, was represent- ing the owner for the specific purpose of overseeing and coordinating the entire construction operation. In these circumstances, it is immaterial that Respon- dent's threat may not have been further communicat- ed to Mental Hygiene Corp. We also find, in agreement with the Trial Examin- er, that one of the picket signs used at the South Beach site did not clearly identify C. K. Rehner as the primary employer and, therefore, failed to meet the Moore Dry Dock25 requirements for lawful common situs picketing. Accordingly, the picketing to that extent was an inducement to employees of neutral employers to cease work and a coercive measure on neutral employers with the proscribed object previously stated, in violation of Section 8(b)(4)(i) and (ii)(B) of the Act. The Remedy Having found that Respondent has engaged in 25 Moore Dry Dock Co, 92 NLRB 547. LOCAL 282, TEAMSTERS unfair labor practices in violation of Section 8(e), 8(b)(3), 8(b)(4)(i)(ii)(A) and (B) of the Act, we shall order that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Local Union No. 282, affiliated with The Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen, and Helpers of America, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Entering into, maintaining, enforcing, or giving effect to section IX of its current High Rise Agreement 1969-1972 with The Cement League and its member-employers; the Building Contractors Employers Association, Inc., and its member-em- ployers; and with any other employers or employer associations who have become party to such High Rise Agreement. (b) Engaging in, or inducing or encouraging employees of D. Fortunato, Inc.; C. K. Rehner, Inc.; Afco Construction; John S. Parnon Construction Corp.; or any other employer engaged in commerce or in an industry affecting commerce to engage in, a strike or refusal in the course of their employment to use or handle any materials or to perform any services or threatening, coercing, or restraining D. Fortunato, Inc.; C. K. Rehner, Inc.; Walsh Con- struction Co., Inc; or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require D. Fortunato, Inc.; C. K. Rehner, Inc.; or any other employer or person to enter into, maintain, enforce, or give effect to section IX of the High Rise Agreement 1969-1972 or any other contractual provisions prohibited by Section 8(e) of the Act. (c) Inducing or encouraging employees of Afco Construction, John S. Parnon Construction Corp., or any other person engaged in commerce or an industry affecting commerce with whom it has no primary dispute to engage in a strike or refusal to perform services, or threatening, restraining, or coercing Afco Construction, John S. Parnon Con- struction Corp., or any other person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require the above-named employers or any other 16 In the event this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted 681 persons to cease doing business with D. Fortunato, Inc. (d) Refusing to bargain in good faith with D. Fortunato, Inc., by failing to execute the Excavating Contract 1969-1972 on which full agreement had been reached with Fortunato and, thereafter, by picketing D. Fortunato, Inc., to force it to enter into its High Rise Agreement 1969-1972. (e) Threatening, restraining, or coercing Walsh Construction Co., Inc., or any other person engaged in commerce or in an industry affecting commerce, with whom Respondent does not have a dispute, where an object thereof is to force or require Walsh or any other such neutral persons to cease doing business with Remsco Associates, Inc. (f) Inducing or encouraging any individuals em- ployed by Colonial Concrete, Post Construction, Queens Construction, Victor Plumbing, or any other person engaged in commerce or an industry affecting commerce with whom it has no primary dispute to engage in a strike or refusal to perform services, or threatening, restraining, or coercing Walsh Construc- tion Co., Inc., Mental Hygiene Corp., or any other person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require the above-named employers or any other persons to cease doing business with C. K. Rehner, Inc. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Immediately execute the Excavating Contract 1969-1972 on which agreement had been reached with D. Fortunato, Inc., and forthwith forward to D. Fortunato, Inc., a duly executed copy or copies of said executed agreement. (b) Post at its business offices and meeting halls copies of the attached notice marked "Appendix." 26 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by a representative of Respondent Local 282, shall be posted by said Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Furnish said Regional Director with signed copies of the aforesaid notice for posting by D. Fortunato, Inc.; Remsco Associates, Inc.; C. K. Rehner, Inc.; Walsh Construction Co., Inc.; The Cement League and its member-employers; the Building Contractors Employers Association, Inc., Pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and its member-employers; and The Building Trades Employers' Association of the City of New York and its member associations; or such of said employers as may be willing, at all places where notices to their respective employees or members are customarily posted. (d) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 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, enforce, or give effect to section IX of our current High Rise Agreement 1969-1972 with The Cement League and its member-employers; the Building Contrac- tors Employers Association, Inc., and its member- employers; and with any other employers or employer associations. WE WILL NOT engage in, or induce or encour- age employees of D. Fortunato, Inc.; C. K. Rehner, Inc.; Afco Construction; John S. Parnon Construction Corp.; or any other employer engaged in commerce or in an industry affecting commerce to engage in, a strike or refusal in the course of their employment to use or handle any materials or to perform any services or threaten, coerce, or restrain D. Fortunato, Inc.; C. K. Rehner, Inc.; Walsh Construction Co., Inc.; Afco Construction; John S. Parnon Construction Corp.; or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require D. Fortunato, Inc.; C. K. Rehner, Inc.; or any other employer or person to enter into, maintain, enforce, or give effect to section IX of our High Rise Agreement 1969-1972 or any other contractual provision prohibited by Section 8(e) of the Act. WE WILL NOT induce or encourage employees of Afco Construction, John S. Parnon Construc- tion Corp., or any other person engaged in commerce or an industry affecting commerce with whom we have no primary dispute to engage in a strike or refusal to perform services or threaten, restrain, or coerce Afco Construction, John S. Parnon Construction Corp., or any other person engaged in commerce or in an industry affecting commerce where in either case an object thereof is to force or require the above-named employers or any other persons to cease doing business with D. Fortunato, Inc. WE WILL NOT refuse to bargain in good, faith with D. Fortunato, Inc., by failing to execute our Excavating Contract 1969-1972 after full agree- ment was reached and, thereafter, by picketing D. Fortunato, Inc., to require it to subscribe to our High Rise Agreement 1969-1972. WE WILL NOT threaten, restrain, or coerce Walsh Construction Co., Inc., or any other person engaged in commerce or in an industry affecting commerce with whom we have no dispute where an object thereof is to force or require Walsh Construction Co., Inc., or any other such person to cease doing business with Remsco Associates, WE WILL NOT induce or encourage employees of Colonial Concrete, Post Construction, Queens Construction, Victor Plumbing, or any other person engaged in commerce or in an industry affecting commerce with whom we have no primary dispute to engage in a strike or refusal to perform services or threaten, restrain, or coerce Walsh Construction Co., Inc., Mental Hygiene Corp., or any other person engaged in commerce or in an industry affecting commerce with an object of forcing or requiring the above-named employers or any other persons to cease doing business with C. K. Rehner, Inc. WE WILL bargain in good faith with D. Fortunato, Inc., by immediately executing our Excavating Contract 1969-1972 on which agree- ment with Fortunato had been reached, and forthwith forward to Fortunato a duly executed copy or copies of said executed agreement. Dated By LOCAL UNION No. 282, affiliated with THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA (Labor Organization) (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 concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11201, Telephone 212-596-3535. LOCAL 282, TEAMSTERS TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Trial Examiner: These are seven unfair labor practice cases litigated pursuant to Section 10(b) of the National Labor Relations Act, herein called the Act. They were consolidated for the purpose of trial. The charges in Cases 29-CC-230, 29-CC-231, 29-CE-10, and 29-CB-738 were filed on March 18, 1970, by D. Fortunato, Inc. That in 29-CE-10 was amended on December 1, 1970. These four charges name as Respon- dent Local Union No. 282, affiliated with The Internation- al Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America. They also name as parties to the contract The Cement League and its member-employers, and Building Contractors Employers Association, Inc., and its member-employers; and as parties in interest The Building Trades Employer's Association of the city of New York and its member associations. C. K. Rehner, Inc., filed the charges in Cases 29-CC-243 and 29-CE-13 on June 3, 1970, naming said Local Union No. 282 as Respondent. On June 19, 1970, Remsco Associates, Inc., filed the charge in Case 29-CC-248, naming Local Union No. 282 as Respondent. On January 6, 1971, the General Counsel of the National Labor Relations Board, herein called the Board, through the Regional Director for Region 29 (Brooklyn, New York), consolidated said cases and issued a consolidated complaint based on all the charges and the amended charge. In essence said complaint alleges that Respondent has violated Sections 8(b)(3), 4(i)(A) and (B), 4(ii)(A) and (B), and 8(e), and that such conduct affects commerce within the meaning of Section 2(6) and (7) of the Act. Respondent has answered admitting some facts but denying that it committed any unfair labor practices. Pursuant to due notice, the consolidated case came on to be heard, and was tried before me, at Brooklyn, New York, on January 27, 28, 29, and February 1, 2, 3, 4, 22, 23, 24, and 25, 1971. All parties had full opportunity to introduce evidence, examine and cross-examine witnesses, file briefs, and offer oral argument. Respondent argued briefly orally at the close of the hearings . Its motions to dismiss, submitted when the General Counsel rested , and again when the case closed, were denied . Briefs were received on August 16, 1971, from the General Counsel and Respon- dent. This consolidated case presents the following issues: 1. Whether Respondent, Local Union No. 282, refused to bargain in good faith with D. Fortunato, Inc. 2. Whether said Respondent engaged in a strike, or induced or encouraged employees to refuse to perform services, where an object of such conduct was (a) To force or require any employer to enter into an agreement prohibited by Section 8(e) of the Act; or (b) To force or require any person to cease doing business with any other person ; or both. 3. Whether said Respondent threatened, coerced, or restrained any person where an object of such conduct is that described in paragraph 2a, or 2b, supra, or both. 4. Whether the contract involved contravenes Section 8(e) of the Act. 683 Upon the entire record in this case, and from my observation of the witnesses , I make the following: FINDINGS OF FACT I. AS TO JURISDICTION D. Fortunato, Inc., a New York corporation, is engaged in New York in the business of general construc- tion contracting, including excavating work . Its principal office and place of business is situated in Floral Park, New York. C. K. Rehner, Inc., a New York corporation, is engaged in New York in the business of institutional plumbing contracting and related services . Its principal office and place of business is located at Elmhurst, New York. Remsco Associates, Inc., a New Jersey corporation with its principal place of business at Old Bridge, New Jersey, is engaged in the States of New Jersey and New York in the business of commercial and institutional mechanical plumbing contracting and related services . During the year preceding the issuance of the complaint Remsco Associ- ates, Inc., C. K. Rehner, Inc., and D. Fortunato, Inc., each purchased supplies and materials valued in excess of $50,000, of which supplies valued in excess of $50,000 were shipped directly to each in New York by firms located outside New York. I find that Remsco Associates, Inc., C. K. Rehner, Inc., and D . Fortunato, Inc., are employers within the meaning of Section 2(2), and are engaged in commerce within the meaning of 2(6) and (7), of the Act. Further, I find that the following are also employers engaged in commerce: John S. Parnon Construction Corp., Sol Picone & Sons Indus- tries, Inc., Willner Heating Co ., Inc., K & B Sheet Metal Inc., Walsh Construction Co., Inc., The Cement League and its member-employers, The Building Trades Employ- ers' Association of the City of New York and its member associations, and Building Contractors Employers Associa- tion, Inc., and its employer-members. In addition I find that the following are persons engaged in commerce: Health and Mental Hygiene Facilities Improvement Corporation of the State of New York, Board of Water Supply of the City of New York, and Town of Hempstead, New York. Additionally, I find that it will effectuate the purposes of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATION INVOLVED Local Union No. 282, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondent in this case, herein called Local 282, is a labor organization within the meaning of Section 2(5) of the Act. III. GENERAL COUNSEL'S EVIDENCE REGARDING THE UNFAIR LABOR PRACTICES A. Events concerning D. Fortunato, Inc. This company, hereinafter referred to as Fortunato, is a general contractor performing general municipal work. It 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employs two truckdrivers, both members of Local 282. It is the general contractor, also known as a prime contractor, on the construction of the Hempstead High School, a senior high school of the town of Hempstead, New York. At the jobsite thereof, which is located at the intersection of Peninsula Boulevard and President Street in said town, Fortunato is performing the excavation site work , concrete work, and carpentry. Others having prime contracts with said town to perform work at said jobsite are Wilner Heating, the heating and ventilating contractor ; Valden Plumbing, the plumbing contractor ; and Herrick Electric, the electrical contractor. On March 20, 1970, Fortunato's vice president, Bernard Fortunato, visited said jobsite. Upon arriving there Bernard observed two of Fortunato's employees, both dump truck drivers, picketing at the gate. Thereupon Bernard "had a meeting" with Robert Sasso and George Becker, both business representatives of Local 282. In addition, representatives of Fortunato , the Building Trades Employers' Association, the Building Trades Employers' Association of Long Island , the Bricklayers Union, the Carpenters Union, the Plumbers Union, the Laborers Union, and "a number of other unions," also were present at this meeting . In addition, Sasso said that the pickets would be withdrawn if the high rise agreement was signed by Fortunato. Sasso asked the Fortunato representatives to sign a high rise contract. The latter replied that they had no reason to sign such a contract since they had already signed and had been signing for the past 10 or 20 years , an excavating contract with Local 282; and that the last contract ended in 1972. But Sasso replied that "they had no record of the excavating contract" and requested Fortunato either to "avoid the Excavating Contract," if one existed, or sign the high rise contract in addition to the excavating contract and thus "have dual contracts." But Fortunato stated that it was abiding by the terms of the excavating contract and was paying wages and fringe benefits called for by its terms. At this point Sasso presented Fortunato for the latter to sign a document entitled "High Rise Contract 1969-1972." See General Counsel's Exhibit 13. Nevertheless Fortunato refused to execute the contract so presented to it and further claimed that it was "affording welfare and pension funds to [Local 282 ] under the terms and conditions of the Excavating Contract." In addition, Fortunato complained that some crafts on the j ob were not performing work there because they were not crossing the picket line. Soon Mr. Alessi, the Bricklayers delegate, suggested to Fortunato that Local 282 would consider removing the pickets if Fortunato would meet with the Building Trades Employers' Association of Long Island to discuss the high rise contract with Local 282. As soon as Fortunato accepted this proposal the pickets were removed and "the job went back to work." At the foregoing meeting Fortunato also asserted that its drivers drove its trucks on the jobsite and that its subcontractors or suppliers moved the trucks of the latter on thejobsite. However, Becker claimed that driving trucks on the job belonged to Local 282 and pointed out that Panner Iron Works, the structural steel subcontractor, did not employ union drivers on its trucks. When Fortunato denied this, claiming that Panner employed union drivers, Becker remarked that they were not members of Local 282. Since its incorporation several years ago Fortunato's suppliers or subcontractors have delivered materials and supplies to it at jobsites in trucks of such suppliers or contractors. Most of that time it has executed an Excavating Contract with Local 282. However, these trucks of suppliers and subcontractors have been operated by the employees thereof, but many of such suppliers or subcon- tractors had employees who were not members of Local 282. Such subcontractors or suppliers moved their own trucks with their awn employees at the jobsites. Fortunato for many years has signed an excavating contract with Local 282 for its truckdrivers . It has signed about six. According to Bernard Fortunato the last excavating contract which Fortunato had with Local 282 expired at the end of June 1969 . Commencing July 1, 1969, and continuously thereafter , Fortunato made payments to the pension and welfare trusts of Local 282 and to the dump truck owners industry fund on a monthly basis in the manner and amounts provided by the 1969-1972 excavat- ing agreement . Said monthly checks were received by said pension and welfare trusts and said industry fund and were deposited by the same . Such payments were remitted with forms provided by Local 282 for such payments. See General Counsel's Exhibits 15A and 15B. In August 1969, Becker of Local 282 asked Fortunato to sign the Metropolitan Builders' Association contract, but the latter refused . In substance it was the same as the high rise contract. Further, Fortunato stated it would sign only the "usual contract, the excavating contract ." Becker replied he would let Fortunato know when the excavating contract was "printed up." Later in 1969 Louis Fortunato, president of Fortunato, spoke to Argento and Huggins, business representatives of Local 282. Louis on this occasion asked them to send him "the excavating contract and I'll sign it." However , Becker of Local 282 about a week later asked Louis to sign an excavating contract for the years 1969-1972 in triplicate, and Louis did so. Louis then handed the three copies to Becker. The latter stated he would have all three signed and send a signed copy to Louis . But such a signed copy was never sent to Louis and at no time has Local 282 sought to terminate said contract . However, in January 1970, Becker left a high rise contract at the office of Louis to be signed by Fortunato . See General Counsel's Exhibit 9A for the form thereof, although said exhibit is not the copy left by Becker; and Respondent's Exhibit 1, which Fortunato claims is a form copy of the contract signed by Fortunato. As mentioned above , Fortunato at the March 20, 1970, meeting promised Sasso to consider the proposals of Local 282 for a high rise contract . Immediately thereafter the pickets were withdrawn and Fortunato agreed to meet with the Building Trades Employers' Association of Long Island to discuss the demands of Local 282 for a high rise contract. On March 9, 1970, Sasso and Becker, business represent- atives of Local 282, spoke to Donald Pope, Fortunato's superintendent on the Hempstead High School job. Quish, LOCAL 282, TEAMSTERS the carpenter foreman, and others, were also present. Becker said he would "shut down" Fortunato's "job" there because Fortunato did not have a contract with Local 282. Pope advised Becker to get in touch with Fortunato's "office or . . . lawyers." The next day two pickets, being Fortunato's two truckdrivers, appeared on President Street at the only entrance to the schooljob. It was stipulated (a) that such picketing continued at the Hempstead jobsite daily from 7:30 a.m. to 3:30 p.m. until March 20, 1970, except that it was discontinued on Saturdays and Sundays; and (b) that the picket signs carved the legend "D. Fortunato, Inc., refuses to sign a new contract. Strike. Teamsters and Chauffeurs Local 282, International Brotherhood of Teamsters." See General Counsel's Exhibit 14. As a result of said picketing, on March 10 the electricians, about 12 in number, at first refused to work. However, at 9:30 a.m. they did commence working. These electricians are employed by Herrick Electric. Further, at noon of the same day the carpenters "went out in sympathy." Some of them were employed by Fortunato, while others were employees of Afco Construction and Pamon Construction Company. Although the carpenters returned for 2 days they again left thejob and returned after March 20. According to Pope, Fortunato has two dump trucks; these are driven by the two picketing employees of Fortunato. Said trucks are used to move materials, such as carpenter forms and pumps, and fill from one location on the jobsite to another. On rare occasions these trucks also carried "something small" from the supplier to the jobsite. They spend about half their time transporting materials on or at the jobsite and half in performing excavating work. About 90 percent of their time is spent at the j obsite and 10 percent "off the job." He further testified that deliveries of materials and supplies to the jobsite are effected by the suppliers themselves, and then such are dropped off at points on the jobsite where they are needed. At no time did Fortunato's truckdrivers operate at any jobsite the truck of any supplier or subcontractor; rather this was done by the employee of the supplier. During the picketing on March 10 Pope also observed truckdrivers of suppliers or material men speaking to the pickets. Following such conversations said truckdrivers left the jobsite without completing their deliveries. However, on a day shortly after March 10 the truckdriver of Cambria Sheet Metal, a supplier, did make a delivery to the jobsite after he spoke to the pickets. Fortunato's carpenter foreman is Heinz Klisch on the Hempstead job. When Klisch reported for work on March 10, 1970, he found a picket line there. About 8 a.m. that morning Klisch spoke to Becker, a business representative of Local 282, and Rossen, an employee of Fortunato and the carpenter steward on the job. As such steward Rossen acted for the carpenters of Fortunato, Parnon, and Afco on said job. When Klisch asked Rossen if the carpenters would continue to work that morning, Rossen replied that he "didn't know anything otherwise." At this point Becker of Local 282, who was present, told Rossen to call the Carpenters Union business agent, one Hartigan, because 685 Hartigan "would respect his [Becker's] picket line." Rossen did call Hartigan. The latter told him "the carpenters were leaving at 12 o'clock." At noon all the carpenters did leave the job. Although said carpenters returned later for 2 days they again stayed away from work until the picketing was discontinued on March 20. When the carpenters did not cross the picket line on the latter occasion, i.e., after working 2 days, Rossen said it was his own decision not to cross it. One of the suppliers making deliveries of cement blocks to John S. Parnon Corporation at the Hempstead High School job is Sal Picone Industries. Parnon has contracted with Fortunato to perform cement services there. In March 1970, Picone's driver, Timothy Buckley, a member of Local 282, was instructed to deliver a load of cement blocks to John Pamon, a contractor on that job. When Buckley arrived there some men told him that "the job was on strike" and asked him if he knew this. When he replied in the negative they asked him if he was going to go across the picket line. Replying, "Definitely not," Buckley telephoned his dispatcher for instructions. The latter directed him to bring the load back to Picone's yard. Some of the men who spoke to Buckley wore picket signs displaying the message D. Fortunato, Inc., refuses to sign a new contract. Strike. Teamsters and Chauffeurs Local 282." See General Counsel's Exhibit 14. John Erbis is a truckdnver for K & B Sheet Metal, but belongs to no union. None of the truckdrivers of K & B is a member of a labor organization. In March 1970, he was directed to make a delivery of air ducts to the Hempstead High School job. When he arrived there he observed two persons picketing with signs heretofore described as General Counsel's Exhibit 14. When one of the pickets told him that the picket "was going to call the union delegate," Erbis asked if he could enter the jobsite. The picket answered that he could not stop Erbis. Thereupon Erbis completed the delivery. B. Events Concerning Remsco Associates, Inc. At all times material herein the Board of Water Supply of New York City awarded Walsh Construction Company, as general contractor, a contract to construct Silver Lake Park Water Storage Tanks in Staten Island, New York. On or about February 2, 1968, Walsh awarded a subcontract to Remsco to install the mechanical plumbing and piping systems and related services. See General Counsel's Exhibit 17. Remsco first started to work there as a subcontractor late in 1969. Materials delivered to Remsco at this jobsite included large clad steel pipe, asbestos, cement pipe, sluice skids, sluice gate operators, large diameter valves, dehumidifiers, crane, and hoist. Although these were delivered by trucks, none of said trucks was driven by a member of Local 282. Said materials were delivered by said trucks directly to the approximate area where they were to be used on the jobsite, and they were not thereafter put on a truck for further transportation at the project. Remsco is engaged in the business of mechanical contracting. Nicholas Lazarchick is its field superintend- ent. One of the jobs on which Remsco was working is known as the Silver Lake Park Water Storage Tanks. At 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this location Remsco, as subcontractor for Walsh Con- struction Company,' was installing 24-inch soil pipe and floor drains with its plumbers. In April, 1970, as Lazar- chick parked Remsco's pickup truck at its toolshed, the job steward of Local 282 accosted him. The steward told Lazarchick that the former "thought that Remsco prom- ised to keep the truck off the job." Lazarchick replied that he was using the truck to commute and was not hauling anything in it. Since about 1957, Remsco's past practice in the metro- politan New York City area respecting movement of tools and materials on jobsites may be described as follows: (a) Large materials were brought on the jobsite almost always by common carver trucks. These were usually manned by drivers who belonged to a Teamsters union. This procedure was not affected by the oral disagreement of April, 1970, hereinafter described, and it continued thereafter. (b) Shipments of small materials and tools used on a job, as well as personnel working at said jobsites, were transported to, from, and in and about jobsites in Remsco trucks operated by employees of Remsco who belonged to a plumbers union. At no time in the past were such trucks operated by members of Local 282. After April 1970, Remsco brought small tools, materials, and supplies to the Silver Lake job in the following manner : Lazarchick transported them up to, but not into, the project in Remsco's pickup truck, whence Remsco's employees, who are plumbers, manually carried, by hand or a manually operated wheelbarrow, such supplies and tools to their destination on the site. Prior to this, that is from February 1969, Remsco's truck delivered said tools, materials, and supplies to the point or points on the j obsite where they were needed. The change in procedure after April 1970, resulted from a disagreement, in April 1970, by representatives of Remsco, Local 282, and Local 371 of the Plumbers Union (Remsco's employees are plumbers) over using a Walsh truck to haul Remsco's tools, materials, and personnel on and around the jobsite. (Walsh Construction Company is a contractor, also performing work at the Silver Lakes jobsites, who has a collective-bargaining contract with Local 282 covering its truckdrivers.) The foregoing disagreement arose between Plumbers Local 371 and Local 282 as to who should drive trucks on the jobsite. Local 371 claimed that the plumbers had always driven trucks of their employer to, from, and on construction jobsites, and stated they would continue to do so. On the other hand, Local 282 insisted that its contract with Walsh gave this work to Teamsters employees of Walsh and that Local 282 would not allow members of any other union to perform it. Further, Local 282 said that if plumbers continued to do this work Walsh was "not going to get any concrete on the job." The foregoing was a compromise worked out pending the decision in the instant case. Remsco is a party to a collective-bargaining contract between Richmond County Plumbing Contractors' Associ- ation and Local Union No. 371 of the Plumbers. See General Counsel's Exhibits 16 and 19. Early in 1970, Tony Pisicanti, an employee of Walsh Construction and the job steward of Local 282 on the Silver Lakes project, spoke to James Melville, Remsco's project engineer on said job. In this conversation Pisicanti told Melville that Remsco's plumbers were not allowed to drive Remsco's pickup truck on the jobsite unless it was empty, and that if the truck were operated while bringing materials on to or around the site it had to be driven by a Teamster. C. Events Concerning C. K. Rehner, Inc. Renner is engaged in the business of plumbing and heating on institutional type buildings, school buildings, and residential apartment houses. It employs laborers and plumbers; the latter are members of Local 371 of the Plumbers Union. "In order to do work in Staten Island" Rehner must abide by a contract "between the [Plumbers] local union and the contractor involved." See General Counsel's Exhibit 16. At all times material the Health and Mental Hygiene Facilities Improvement Corporation of the State of New York, herein called Mental Hygiene Corp., a public benefit corporation, has retained Walsh Construction Company as construction manager and representative respecting the former's construction and modernization of state and community mental hygiene facilities, including the con- struction of South Beach Psychiatric Center in Staten Island, New York. As such Walsh "manages the various contractors of the various trades" which are building said center. On or about March 17, 1970, Mental Hygiene Corp. awarded a contract to Renner to install all interior plumbing systems at South Beach Psychiatric Center. No contract exists between Walsh and Rehner. Rehner commenced working at South Beach about May 1, 1970. It has but one vehicle, a pickup truck, on the job. It transports men and their equipment, tools, and materials to points on the job. Said truck is operated by a supervisor or, on occasion, by one of the employees belonging to Local 371 of the plumbers. In the past 40 years Rehner has assigned pickup trucks to various jobsites. At all times these trucks have been operated by its plumbers. At no time has Rehner employed drivers who were members of Local 282. Rehner's suppliers deliver materials to it atjobsites in trucks of such suppliers driven by employees of the latter. Although Walsh manages the construction at South Beach it neither performs construction nor has any Teamsters at the site. In faci many contractors performing work there are prime contractors who have a contract with Mental Hygiene Corp. Walsh's project manager at said South Beach job is Wilmer Luster. In June 1970, DeVito, a representative of Local 282, told Luster that DeVito had a disagreement with Rehner "for not meeting certain agreements with" DeVito and that, therefore, DeVito should remove some Teamsters from the job. Luster told him to get in touch with Rehner's superintendent about it as Walsh "was not a general contractor" on the job. During June 1970 picketing of the South Beach job occurred for a few days. This occurred at the main 1 See G C. Exh. 17 for the subcontract. LOCAL 282, TEAMSTERS entrance and the second entrance, the only two means of access to the site. DeVito was standing by a car in the vicinity of one of the entrances. Said car displayed a picket sign reading "Strike, Teamsters and Chauffeurs, Local 282, International Brotherhood of Teamsters. Against C. K. Rehner, Inc." See General Counsel's Exhibits 18A and 18B. About June 4, 1970, a Mr. Friedman telephoned Rehner that the pickets would be withdrawn if it withdrew the charges. Rehner then sought to withdraw the charges and the picketing was thereupon discontinued. However, Rehner's application to withdraw the charges was rejected by the Board's Regional Director except for that in Case 29-CC-242. When Rehner first brought its own truck to the South Beach job in May or June 1970, DeVito of Local 282 spoke about it to Anthony Curto, Rehner's plumbing foreman there. In this conversation DeVito stated that Rehner "needed a Teamster to drive the truck." Although Curto explained that it was used to transport him and Rehner's employees to various parts on the jobsite, DeVito replied that "it didn't make any difference, [Curto] needed a Teamster on the truck," and that "all trucks on the job were to have Teamsters on them." Thereupon Curto promised to convey this message to his office. Continuing, DeVito insisted that this arrangement was in "an agree- ment book" between contractors and Local 282. DeVito claimed Rehner was bound by this agreement and that Rehner had to "put a teamster on the truck" or DeVito "would picket the job." A few days later Curto told DeVito that he had informed Rehner of DeVito's claim to the work of driving the trucks on the job and that Rehner had instructed Curto to "carry on as usual." This caused DeVito to remark that he "would stop the job." A day or two thereafter Wilmer Luster, Walsh's project manager on the job, and DeVito called on Curto. Luster said that DeVito had a complaint against Curto. Then DeVito insisted that "the agreement called for a Teamster on every truck on the site." Continuing, DeVito said that if Curto did not put a Teamster on Rehner's truck DeVito "would picket the place." The next day, June 2, 1970, DeVito asked Curto what decision had been made respecting who should drive Rehner's truck on the jobsite. Curto replied he was not authorized to employ a member of Teamsters on the truck. Thereupon, about 7:50 a.m. DeVito set up picket signs at both the main entrance and the only other entrance to the project. See General Counsel's Exhibits 18A and 18B for the text of such signs. The pickets remained until quitting time, 3:30 p.m., and the day after that, remaining until noon. On the first day of picketing some trucks of Colonial Concrete, which approached to make deliveries to Queens Construction at the jobsite, turned away without entering the jobsite after speaking to DeVito at the scene of the picketing. The truckdriver of another supplier, who arrived to deliver tile to Post Construction on the jobsite, also refused to cross the picket line after talking to a picket and left without making the delivery. Other trucks also refused to cross the picket line that day after the drivers thereof spoke to the pickets. Some, including that of Victor Plumbing, were delivering supplies to Rehner at the 687 jobsite; others were delivering to other contractors working on the job. On the second day of the picketing "the telephone company man," who had arrived at the site to install telephone service for Rehner, refused to enter the site when he saw the picketing, giving as a reason "we didn't want to get involved." He left without installing the telephone. On the third and last day of the picketing a truckdriver making "a big delivery from Pennsylvania" to Rehner at the jobsite refused to cross the picket line after speaking to "some individuals ... on the field." D. Other Incidents Pertinent to the Issues Herein Alexander Wolf & Son is engaged at New York City in the business of performing alterations in office buildings in that part of the city known as Manhattan. It is a member of Building Contractors Employers Association, Inc. It has no trucks and has never employed any members of Local 282. When Wolf purchases materials and supplies used in connection with its functions the same are delivered by the suppliers. Nevertheless Wolf does subcontract some of its work. In such instances the subcontractors often use trucks in the course of performing such work. Such trucks are not the property of Wolf. Dorff Construction Company, a general contractor and a member of the same association as Wolf, testified that Dorff operates in substantially the same manner as Wolf. However, Dorff has one truck, which is operated by its employee. The employee is not a member of Local 282. The truck is used to move equipment from Dorff's shop to a building and from a building back to the shop. A. J. Courtmel is engaged at New York City in the business of building contracting in the New York Metro- politan area. It is a member of Building Contractors Employers Association, Inc. It has no trucks, employs no truckdrivers, and does not employ any members of Local 282. Supplies and materials which Courtmel purchases in furtherance of its work are delivered to it at jobsites by trucks of the suppliers or of subcontractors to whom it has subcontracted work, but Courtmel's employees do not handle or operate such trucks. John Gallin & Son, a member of the Building Contrac- tors Employers Association, Inc., and a general building contractor, has two trucks. These are operated by its employees. One is used strictly for maintenance work and the other to transport its superintendents to and from jobs. None of its employees belong to Local 282. Otherwise Gallin operates in substantially the same manner as Courtmel, as described above. Evidence that other contractors operated in a manner similar to A. J. Courtmel, supra, i.e., without trucks, was adduced by the General Counsel at the hearing. These are Gotham Construction, a member of Building Contractors Employers Association, Inc., a general contractor with a principal place of business in New York City; George F. Driscoll Company, a member of Mason Builders Associa- tion, which in turn is a member of Building Trades Employers' Association of the city of New York. The General Counsel also adduced evidence that still other contractors operated in substantially the same manner as Dorff Construction Company, supra, that is 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with one or more trucks operated by their own employees. These are: Central Cement Finishing Company, a member of the Cement League and the Building Trades Employers' Association; and Barnaby Concrete Corporation, a mem- ber of the Cement League and the Building Trades Employers' Association. However, Barnaby's truckdrivers are members of Local 282. Costello Construction Company, a general contractor doing business in New York City's five boroughs and in Nassau, Suffolk, and Westchester counties, New York, is a member of the Cement League, which in turn is a member of Building Trades Employers' Association of the city of New York. It has three trucks, all driven by employees who are members of Local 382. However, when Costello purchases supplies or materials to be delivered to a j obsite these are delivered to such site by the seller. And at no time do Costello's truckdrivers operate the trucks of such sellers when they make deliveries at such jobsites. Further, Costello does subcontract out some of its work. At no time do Costello's truckdnvers operate the trucks of such contractors at jobsites where Costello is performing work. An example of this is that Costello is now performing construction work for Long Island Lighting Company at Northport, New York, but is not using any trucks at said jobsite. Nevertheless Costello's subcontrac- tors on said job do use trucks. In April 1970, Benjamin Schabert, business manager of Local 371 of the Plumbers Union, met with DeVito of Local 282 at the Silver Lakes job. Walsh Construction's superintendent, Remsco's superintendent, and one Samp- son were also present. At this meeting DeVito complained that Schabert's plumbers were doing the work of Local 282 members, i.e., driving trucks. Schabert replied that he had been doing such work during the 25 years he was business manager and for 25 years before that. Describing such work, Schabert said that he drove a truck on the jobsite picking up material at one point and delivering it to one or more other points at such sites. To this DeVito replied that if Schabert's plumbers persisted in driving such trucks DeVito would have to do something about it, and that he, DeVito, would stop deliveries and "wouldn't let any other trucks come in" to make deliveries. At this meeting DeVito in addition argued that Walsh's contract with Local 282 "covered all trucking on the jobsite" and that "Walsh was violating the Local 282 contract." When the meeting ended the parties had not resolved this issue. Local 371 has a contract with an association, one of whose members is C. K. Rehner, a contractor doing some work at the South Beach Psychiatric job in Staten Island. This contract covers plumber employees and is in evidence as General Counsel's Exhibit 16. Local 371 also has a contract with Remsco Associates covering the latter's plumbers. See General Counsel's Exhibit 19. About June 1, 1970, DeVito again complained to Schabert that Rehner had trucks at the South Beach mental hospital job, and added that he, DeVito, wanted Rehner to sign a contract with Local 282, and that if Refiner did not sign DeVito would have to picket. DeVito added that he told this to Rehner. Replying, Schabert insisted that he would not take plumbers off Rehner's truck regardless of what action DeVito took. Further testifying, Schabert claimed that in the course of his 25 years with the Plumbers Union he observed that it was "the practice in the industry" that "members of Local 371, in respect to driving trucks, has been driving them for my 25 years administration and 25 years before me." He also asserted that members of Local 371 drove such trucks on jobsites to cart men and materials at, on, and about such sites. John Nolte, Remsco's working foreman at the Silver Lakes and a member of Local 371 of the Plumbers Union, drove Remsco's truck carrying tools and materials to this site 1 day in early May, 1970. When he arrived he began to remove the tools. At this point Nolte was warned by the job steward for Local 282, an employee of Walsh Construction, that Nolte had no right to drive a truck on the jobsite. The steward claimed that a plumber should not be driving the truck and that a Teamster should be operating it. Nolte further testified that he always drove a truck "on all plumbing jobs" when he had occasion to perform plumbing work at construction sites. In fact only plumbers drove Remsco trucks while carting materials, tools, and men at construction sites; at no time did members of Local 282 perform such driving for Remsco. Lasker-Goldman Corporation, a member of Building Contractors Employers Association, is a general contractor in New York City and Long Island. It does not now own any trucks, although it operated one for about 2 years in the past. That truck was used to cart materials from one job to another and was operated by one of its employees who "must have been" a member of the Teamsters. However materials and supplies purchased by Lasker- Goldman are delivered to it at jobsites by trucks of the suppliers and driven by employees of said suppliers. None of these trucks is operated by Lasker-Goldman's employ- ees. Lasker-Goldman subcontracts some of its work. Trucks used by such subcontractors to transport materials and supplies to jobsites are operated by their employees and not by employees of Lasker-Goldman. Another general contractor in the New York City Metropolitan area which belongs to the Building Contrac- tors Employers Association is All Building Construction Corporation. It has no trucks of its own. Materials and supplies are delivered to it in the same manner as Lasker- Goldman, supra. Similarly, trucks delivering materials and supplies for subcontractors of All are owned and operated as in the case of Lasker-Goldman. - Hennegan Construction Company, which is engaged in altering buildings in the New York City area, belongs to both The Building Trades Employers' Association and Building Contractors Employers Association. It operates one truck to cart debris and "demolition" away from jobsites and to deliver materials to such sites. Nevertheless supplies and materials which Hennegan purchases in connection with its work are delivered to it at sites by the suppliers in the trucks of the latter. However, "small orders" (such as "a couple bags of cement") and orders requiring immediate transportation are picked up from the LOCAL 282, TEAMSTERS supplier by Hennegan's employee and delivered by such employee in Hennegan's truck. Hennegan's employees, including its truckdriver, are members of the Mason Tenders Union. None of its employees are members of Local 282. Subcontractors working for Hennegan have their materials and supplies delivered in the same manner as that described in connection with Lasker-Goldman's subcontractors. Turner Construction Company, a general contractor internationally, is a member of Building Trades Employers'- Association and The Cement League. It operates in the Metropolitan New York area. It has no trucks of its own and does not employ members of Local 282. Materials and supplies purchased by it are delivered to jobsites in the same manner as those delivered to Lasker-Goldman. Manshul Construction Company, a general contractor of Long Island City, New York, is a member of Building Contractors Employers Association. It does not own or operate any trucks in the metropolitan area of New York City. Supplies and materials which it purchases are delivered to it by the suppliers themselves in trucks of the latter in the manner described above as to Lasker- Goldman's purchase of the same. Supplies and materials used by Manshul's subcontractors are delivered to Man- shul's jobsites by such subcontractors in trucks owned or operated by the contractors. Employees of such subcon- tractors, and not Manshul's employees, drive these trucks of the subcontractors. Julius Nasso Concrete Corporation and Brennan & Sloan, Inc., are members of the Cement League. They are subcontractors of concrete work in building construction in New York City. Nasso has one truck, which is operated by its employee, a member of Local 282. Brennan has no trucks and does not employ any members of Local 282. Nasso's truck is used to cart debris away from jobs and to transport equipment to jobs. But supplies and materials purchased by Nasso are delivered to Nasso's jobsites in trucks of the vendors. Said trucks are operated by employees of the vendors; at no time are they driven by Nasso's employees. Neither Nasso nor Brennan subcon- tracts work to others; and Brennan does not purchase materials or supplies. Morse &' Grossman, general contractors in New York City, belong to Building Contractors Employers Associa- tion, Inc. It has one truck, which is operated by its employee, a member of the Mason Tenders Union. This truck delivers materials to jobsites and carts debris therefrom. Such materials are obtained at its warehouse. None of its employees belong to Local 282. Materials and supplies purchased by Morse are delivered by the vendors in trucks of the latter. Employees of such vendors, and not of Morse, operate such trucks. Morse also subcontracts some of its work. Trucks of such subcontractors are operated by employees thereof and not by employees of Morse. Cedar Park Concrete, another member of the Cement League, is engaged in reinforced concrete construction in New York City and Newark, New Jersey. It owns one truck, which is operated by its employee, a member of Local 282. This truck transports materials from one job to another and from one point to another on the same site. 689 But Cedar's purchases of supplies and materials are delivered to it by the vendors in trucks of the latter. Such trucks are operated by employees of the vendors and not by Cedar's employees. Cedar does not subcontract work to others. W. J. Barney Corporation, a general contractor and a member of the Cement League, does business in New York, New Jersey, and Connecticut. It owns one truck, which is operated by its employee, a member of Local 282. It is used to transport materials from the yard to a jobsite, or jobsite to jobsite. Supplies and materials purchased by it are delivered to it in the same manner as those purchased by Cedar Park Concrete, supra. Barney's subcontractors use trucks operated by employees of the latter. Such trucks are not driven by Barney's employees. Herbert Construction Company, a member of Building Contractors Employers Association, Inc., is a general contractor in the metropolitan area of New York City. It owns one small truck, which transports "small things." The driver thereof belongs to no labor organization. Supplies and materials are delivered to it by the vendors in the same manner as those purchased by W. J. Barney Corporation, supra. Herbert's subcontractors operate trucks of the latter in the same manner as W. J. Barney Corporation, supra. Colin Construction Company is engaged in alterations contracting in New York City . It rents a truck, which is operated only by its superintendents. Supplies purchased by it are delivered to it by the vendors in the same manner as those purchased by W. J. Barney Corporation, supra. Trucks used by Colin's subcontractors are operated under the same conditions as those of W. J. Barney Corporation's subcontractors. S. S. Silverblatt, Inc., a general contractor in New York City, operates a half dozen trucks. Its employees, members of Local 282, drive them. They are used to transport lumber, steel, and equipment. However, its purchases of supplies and materials are delivered to it by the vendors under the same circumstances as purchases made by W. J. Barney Corporation. Trucks of Silverblatt's subcontractors are operated in the same manner as the trucks of W. J. Barney Corporation's subcontractors. Charles Miesmer, Inc., a general contractor in the Greater New York City area, is a member of Building Contractors Employers Association, Inc. Although it has no trucks, it provides a station wagon for its superintend- ent. Said superintendent is a member of the Plasterers Union. None of Meismer's employees belong to Local 282. Materials and supplies purchased by Meismer are deliv- ered to it by the vendors in the same manner as purchases made by W. J. Barney Corporation, supra. Trucks of Meismer's subcontractors are operated in the same manner as the trucks of W. J. Barney's subcontractors, as set forth above. Evidence adduced by the General Counsel further disclosed (1) that other contractors than those heretofore identified in the New York City Metropolitan area purchased supplies and materials to .be delivered in trucks to jobsites; (2) that the vendors thereof delivered the same in trucks operated by employees of such vendors; (3) that such employees are not members of Local 282; (4) that such trucks at no time are driven by employees of the 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contractors who purchase the materials and supplies; and (5) that at no time are such trucks driven by members of Local 282. The contractors described in the preceding paragraph are: Anthony Mattera, Inc., a general contractor in Metro- politan New York City and New Jersey, and a member of Building Contractors EmployersAssociation, Inc. (Mattera, which does not employ members of Local 282, also leases and operates two trucks to transport tools and equipment to and about jobsites and to remove debris from such sites, said trucks being driven by members of the Mason Tenders Union and not Local 282); Castagna & Son, a general contractor and a member of the Cement League and, through another association, a member of the Building Contractors Employers Associa- tion, Inc. (Castagna operates three trucks to transport materials to and about jobsites , and, as a member of BCEA, is a party to a high rise contract with Local 282 which covers these three trucks, such materials being used over and over again and not being incorporated into a structure); and Adler & Nielson, a fabricator and erector of stairs and miscellaneous iron , whose employees are represented by Local 455 of the Ironworkers Union and who have been driving Adler's trucks to jobsites delivering materials to contractors thereat for at least 7 years, except for an incident in 1969 at the World Trade Center, when Adler was forced by the shop steward of Local 282 there to use Local 282 men on its trucks. But Adler occasionally rents trucks from Geist Trucking. On such occasions Geist's employees, members of Local 282, drove Geist's trucks. Additional evidence adduced by the General Counsel discloses that Anthony Mattera, Inc., and Castagna & Son, both contractors in the New York City area, subcontract some of their work, that such subcontractors use trucks operated by their own employees at jobsites, that such employees are not members of Local 282, and that neither Mattera's nor Castagna's employees operate such trucks of the subcontractors. John Zito is financial secretary and treasurer of Shopman's Local 455 of the Iron Workers Union. He testified in substance as follows: Among other things, members of Local 455 deliver steel for their employers (with whom Local 455 has contracts) in trucks to jobsites. This practice of driving such trucks goes back at least to 1935 and is followed by a great majority of such employers. A few employers, "a very small minority" in number, have contracts with Locals 282, 456, and 807 of the Teamsters. Members of the latter locals drive the trucks of these few employers. DeVoe Iron Works, Inc., is a steel fabricator and erector whose employees are represented by four different locals of the Iron Workers Union and have never been represented by Local 282 of the Teamsters. Its steel products are delivered to its customers at jobsites in DeVoe's own trucks. These trucks are operated by DeVoe's employees, who belong to Local 455 of the Iron Workers Union. This has been the practice pursued by DeVoe since 1938. Hohmann & Bernard, Inc., produces and sells construc- tion supplies used in masonry and allied stone and concrete work in the Metropolitan New York City area. It has a contract with, and its employees belong to, Local 455 of the Iron Workers Union. For the past 20 years deliveries of such materials to construction sites have been made in Hohmann's trucks driven by its employees . But Hohmann has never employed members of Local 282 to drive such trucks. On one occasion in April or May 1970, when Hohmann's truckdriver Robert Shirlaw, a member of Local 455 of the Iron Workers Union, delivered building material to a jobsite, the shop steward of Local 282 informed Shirlaw that Shirlaw was "not supposed to be on this job driving the truck" unless he belonged to Local 282 . In addition, said shop steward instructed Shirlaw "don't come back here any more." The next day said shop steward insisted that Shirlaw stop making a delivery when Shirlaw arrived at the j obsite . After telephoning to his superior Shirlaw left without consummating the delivery. In May 1970, employee Ed Manes of DeVoe Iron Works made a delivery of materials to Northport Tower House at Northport, Long Island, a construction project of Long Island Lighting Company. But William O'Brien, the shop steward of Local 282 at the jobsite, told Manes the truck could not be unloaded because it was not driven by a Teamster. At this point George Conway, the DeVoe foreman on the job , notified his superiors of the situation. As a result of this telephone call by Conway the truck left without being unloaded . DeVoe's employees are members of locals of the Ironworkers International ' Union. E. The Contracts Involved The first so-called high rise collective -bargaining con- tract executed by Local 282 was made by it with Metropolitan Building Contractors Association in 1968 for the period June 1 , 1968 to June 30, 1969. See General Counsel's Exhibit 8. Section 9 thereof provides in part that The driving of all trucks on the work site , or entering or leaving the work site, shall be performed by employees of the Employer covered by this Agreement, or by employees of another employer who receives terms and conditions of employment at least as favorable to employees as thus ' set,forth in this Agreement. By a memorandum of agreement dated July 30, 1969, between Local 282, as the Union, and the Cement League and the Building Contractors Employers Association, as the employers, it was agreed that the foregoing contract (General Counsel's Exhibit 8) "will be renewed for the period July 1, 1969, to June 30, 1972, with [specified] modifications." This latter memorandum (General Coun- sel's Exhibit 7) expressly provided in section lE that on certain jobs the employers would "hold a pre-job confer- ence with Local 282 to consider methods for insuring compliance with Section 9 of [General Counsel 's Exhibit 8]" Thereafter a "High-Rise Contract, 1969-1972" was executed for the period July 1, 1969, to June 30, 1972, between Local 282 and "The Cement League and any other association of employers who may become party hereto (hereinafter referred to as the `Association') . . . on behalf of [the Cement League ], all of its members, and all other employers who, under the constitution and by-laws LOCAL 282, TEAMSTERS of the Building Trades Employers Association of the City of New York are bound by agreements with the Associa- tion." See General Counsel's Exhibits 9A and 13. Building Contractors Employers Association, Inc. also became an employer party thereto. Section 9 of said high rise contract provides that SECTION 9. WORKING CONDITIONS. A. The driving of all trucks on the work site, or entering or leaving the work site, shall be performed by employees of the Employer covered by this Agreement, or by employees of another employer who receives terms and conditions of employment at least as favorable to employees as thus set forth in this Agreement, provided that trucks making deliveries to the work site directly from suppliers located outside the New York Metropol- itan Area may make one drop without complying with this provision. All intra-site trucking and jockeying of trailers dropped at the site will be performed by employees of the employer. The Employer will not be liable for any violation of this Agreement unknown to him, until the Union calls the violation to his attention. The Union will discuss with the Association any problems which may apse under this provision. The character and/or amount of work demanded by an employer shall not be unreasonable nor shall it be restricted by the Union, its representatives or members. The employer shall designate a person or persons in his employ who are authorized to issue directions and assignments to the chauffeurs and drivers and these employees shall not take directions from any one other than a duly authorized representative of an employer. Employees shall at all times observe and comply with all general conditions obtaining on the job site and with all safety policies adopted by the Building Trades Employees' [sic] Association. B. The Employer will immediately notify the Union of all jobs on which it will work and shall further notify the Union within 30 days of awarding the sub-contract or supply contract the name and address of the sub- contractor or supplier and such notification shall in all cases be made to the Union prior to the commence- ment of work by the sub-contractor or supplier. In addition, the Employer will notify the sub-contractors and suppliers of this section and shall write same into the sub-contract or purchase order. C. On all jobs with a total gross building cost of at least $40,000,000 the Employer will at the time of giving the above 30 days notice arrange to hold a pre- job conference with the Union to consider methods of assuring compliance with this Section 9. By letter dated April 24, 1970, Local 282 informed various Teamster locals and members that it intended to assert its jurisdiction under the high rise contract " 100% in the High-Rise industry" and that it would not "stand for an infringement of [that] jurisdiction . . . by any Local Union whether it be Teamster, AFL-CIO, or any other group union or non-umon." See General Counsel's Exhibit 11. Local 282 further insisted in the February 1970 issue of "The 282 Teamster," its monthly publication, that it would enforce said section 9 of the high rise contract and urged its members "to check out every job . . . to make certain 691 that all on-site trucks . . . are manned by 282 members. If not, phone in a report to the umon and a delegate will hi- tail it to the site pronto." See General Counsel's Exhibit 12. As recited above , it is conceded that Fortunato and Local 282 had entered into a series of excavating contracts, the last of which expired in 1969. If material, the Local 282 excavating contract for the period 1969-1972 is set forth in the record as Respondent's Exhibit 1. As recited above, Fortunato contends it signed one of these contracts and mailed it to Local 282 . Fortunato's payments after June 30, 1969, to the pension fund, welfare trust fund, and dump truck owners industry fund, as narrated above, were submitted pursuant to the pertinent terms of this contract relating to employer contributions thereto. IV. RESPONDENT'S EVIDENCE REGARDING THE UNFAIR LABOR PRACTICES A. George K Becker's Testimony Becker is a business agent for Local 282 . His testimony is summarized in the ensuing paragraphs in this subsection. Fortunato employs two truckdnvers, both of whom are members of Local 282. For "a good many years" Fortunato has had a collective-bargaining agreement, known as an "excavating contract," with Local 282, the last one expiring in 1969 . In 1968 Becker asked Fortunato to sign a contract which Local 282 had with Metropolitan Business Association, but Fortunato refused . Sometime thereafter Becker met with Fortunato a couple of times to induce the latter to sign an MBA contract, but without success. Then, on December 7, 1969, Becker left a set of "excavating contracts" at Fortunato's office. The next day Becker "left the high rise contract with" Fortunato's receptionist, accompanied by a note that Becker would sign this document . Becker "never got" either the excavat- ing contract or the high rise contract from Fortunato. To Becker's knowledge Fortunato has not signed a new "contract of any type with Local 282." However, Fortuna- to later told Becker that the former had signed the excavating contracts and had returned them to Local 282. The excavating contracts mentioned above contain welfare and trust fund provisions to which an employer party thereto makes contributions. An employer's failure to make such payments is reported by the trustees to Becker so that he can ascertain the cause of such omission. However, Becker received . no complaints after December 7, 1969, that Fortunato had failed to make such payments. It was stipulated as follows at the trial. Fortunato has periodically kept up its payments to the Local 282 welfare fund, the Local 282 pension trust fund , and the dump truck owners industry fund, as required by the terms of the Local 282 "excavating contract." These payments were accompa- nied by monthly remittance report forms for the period June 1969 (when the last contract expired) through January 1971. See General Counsel's Exhibit 21. Such payments were effected by checks of Fortunato. See General Counsel's Exhibit 22. Said checks were cashed by the above three funds. In addition three checks dated February 10, 1971, were remitted by mail by Fortunato to the Local 282 pension fund, the Local 282 welfare trust 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fund, and the dump truck owners industry fund, respec- tively, but as of the close of the trial it could not be ascertained whether they had been cashed or deposited for collection. It was further stipulated at the trial that the above- described remittance reports for each of said three funds are sent by the respective funds each month to the contractor, and that they were sent for the next month to Fortunato upon receipt of the remittance report due for each month. Robert Sasso is employed by Local 282 as a business agent. "To [Sasso's] knowledge" Fortunato's last contract with Local 282 expired in 1969, and has not been renewed. In this respect he corroborated Becker. B. Anthony Pisano's Testimony Pisano, an employee of Walsh Construction Company, is the Local 282 shop steward at the Silver Lake Project in Staten Island. A conspectus of his testimony is recited below. As such employee he drives a flat bed truck "servicing the whole jobsite along with other Teamster 282 men" employed by Walsh. The duties of such "Teamster 282 men" require them to "bring out material from the storage trailers to wherever it's needed on the jobsite." About March 1970, Remsco Associates, Inc., began to work regularly on the above project as a subcontractor of Walsh. Previously to this Remsco as such, subcontractor performed work there intermittently, i.e., "two or three times within a year." Materials for Remsco at this jobsite "were going to the pump house station . . . a mile and a quarter away." However, when Remsco materials arrived at the jobsite area they were transported to such point on outside trucking and then stored in storage trailers on the jobsite. They were then transported from such storage trailers to the pump house station in trucks driven by members of Local 282. This procedure was followed also as to materials intended to be used at the project by other crafts, i.e., whenever materials were needed by any craft on the job at said project such materials would be brought from the storage trailers to the place where needed on trucks operated by members of Local 282 employed by Walsh. In late March 1970, the project manager informed Pisano that the plumbers on the project were planning to transport their materials in trucks of the plumbing contractor operated by employees of the plumbing con- tractor. This caused Pisano to remind such project manager that this conduct would violate "a contract," and that Pisano would "put in a claim for each and every day" such trucks were driven on the job by "other than a teamster." Not long thereafter Pisano, by order of his project manager, Al Mariano, met with Ben Shubert, the delegate of the Plumbers, to try to resolve this dispute. At this meeting Pisano insisted he lacked authority to make any concessions and recommended that Shubert get in touch with the Local 282 business agent. However, not long after this meeting with Shubert, Pisano observed that Remsco's materials were no longer being transported from the storage trailers in trucks manned by members of Local 282. Rather, such transportation was being performed in that such plumbers were carrying their own materials manually or in a wheelbarrow. Pisano also described the procedure in transporting materials at another construction jobsite known as Silver Lake Water Storage. Heavy materials are delivered here directly to the point of use in trucks operated by Teamsters who are not members of Local 282. In addition, the electricians on said jobsite drive their own trucks on said site, and members of Local 282 do not drive such trucks. Further, Pisano testified that when any truck approaches a jobsite to deliver supplies and materials he inquires of the driver whether the latter is a member of a Teamster local and checks said driver's dues book to ascertain the correctness of an answer. However, he abandoned this practice in June 1970. C. John Cody's Testimony Cody is vice president of Local 282. Its high rise agreement was first executed in 1968 to make uniform the "hodgepodge of various contracts" which, prior to then, "covered employees engaged in the high rise industry." The employers to whom Local 282 encouraged this solution participated with it in "working out language" mutually beneficial to them and Local 282. In 1969 the high rise contract was signed by the Building Contractors Employers Association and the Cement League. According to Cody, "in the years past we have delivered through our employers . . . covered under various con- tracts, materials to all . . . sites. We still do . . . . All the driving, of most of the trucking on the jobsite, belonged to 282." However, this procedure, because of laxity, was not enforced to its full extent. But, "on the whole, over the years, we have done all the construction driving on the site." Cody then gave specific instances illustrating his forego- ing contention. One employer he referred to is Starrett Brothers & Egan, the general contractor who built Stuyvesant Town, Peter Cooper Complex, about 22 years ago. Others are Inland Block, Gotham Building Supply, Sincrete, Raisler, Far Plumbing, Duklauer, J. L. Murphy, Jarcho, Melnic, and various others, some of whom he named. However, the employees of said contractors, whether general contractors or subcontractors, who per- formed driving work at jobsites did so because their employers used Local 282 drivers pursuant to a contract with Local 282 covering such drivers. He added that most of these companies are now parties to the Local 282 high rise agreement. Cody further testified that when the high rise agreement was negotiated with Building Trades Employers' Associa- tion, some of the drivers being employed on construction sites were not members of Local 282, being either nonunion or members of craft unions, and that "we did not have an awful lot of these people covered under contract." In addition Cody corroborated Becker that Local 282 "does not have in its possession a collective bargaining agreement signed by Fortunato," the last one having expired in July 1969. However, as a trustee of the Local 282 pension trust fund, Cody knew that said fund "accepted contributions from Fortunato . . . since July, 1969." LOCAL 282, TEAMSTERS D. Angelo De Vito's Evidence One of the business agents of Local 282 is DeVito. An abridgment of his testimony follows. Walsh Construction, the general contractor on the Silver Lakes Project, employs truckdnvers, members of Local 282, to haul materials and dirt at the site to other points at the site where they are needed. Such materials include steel, lumber, concrete, pipe, fittings, oakum, lead, bolts, plumbing materials, and other building materials. Local 282 and Walsh are parties to an "excavation contract." One of Walsh's subcontractors on the Silver Lakes Project, performing plumbing or pipe work, is Remsco Associates, Inc. Local 282 does not have a contract with Remsco. In March 1970, a dispute arose between Walsh and Local 282 because "the plumbers [of Remsco ] wanted to take over the driving of [plumbing] materials around the job." DeVito protested this claim of the plumbers because he considered this to be work belonging to the teamsters pursuant to the contract of Local 282 with Walsh. According to DeVito that contract with Walsh provided that members of Local 282 would "do all of the trucking work in and around on the job, that [Walsh] was responsible for all of the trucking work in and around on the job," and that Walsh could subcontract "specialties" but not trucking. DeVito so informed the delegate of the Plumbers Union and Melville, a representative of Remsco, whom he encountered at the jobsite. DeVito further told these two men that if Walsh violated said contract the Local 282 "men driving the concrete trucks would not deliver concrete." At no time were such deliveries stopped or obstructed. Nevertheless the electricians on that job drove trucks carrying electrical materials and supplies in and around the jobsite. The Cement League and Building Contractors Employ- ers Association, Inc., each with its principal office in New York City, are associations whose members are employers employing employees. Building Trades Employers' Associ- ation of the City of New York, with its principal office in New York City, is composed of employer associations, one of which is the Cement League, said employer associations in turn being composed of employers. who employ employees. The constitutions and by-laws of the Building Trades Employers' Association and of the Cement League are in evidence as General Counsel's Exhibits 2 and 3, respectively. Rosters of members of these two Associa- tions, as well as of Building Contractors Employers Association, are in the record as General Counsel's Exhibits 4, 5, and 6, respectively. V. CONCLUDING FINDINGS AND DISCUSSION A. As to the Validity of the High Rise Contract Section 8(e) was introduced into the Act by certain amendments enacted by Public Law 86-257 in 1959. For the law prior thereto on this branch of the case see Local 1976, Carpenters Union v. N.L.R.B., 357 U.S. 93, 108, and 62 Michigan Law Review, 1176, 1177. After said Section 8(e) was adopted the Supreme Court has expressly upheld clauses in collective-bargaining contracts designed to protect or preserve work traditionally, customarily, or 693 fairly claimable as, within the bargaining unit composed of employees of the employer signing the contract containing such clause. In addition, said Court held that conduct calculated to obtain such a clause constitutes a primary dispute. National Woodwork Manufacturers Association v. N.L.R.B., 386 U.S. 612, 17 L. ed. 2d 357; Houston Contractors Association v. N.LR.B., 386 U.S. 664. See 62 Michigan Law Review 1176, 1187-1188. The question then is whether the high rise clause recited in paragraph 19 of the consolidated complaint (see Section 9 of General Counsel's Exhibits 9A and 13) transgresses Section 8(e) of the Act. While it is not surprising that the Board has not heretofore passed upon the exact language of this clause, it nevertheless has adjudicated clauses whose text was substantially similar thereto. On the basis of said decisions I conclude that said high rise clause does not contravene Section 8(e) of the Act because it is "a primary work preservation agreement outside the scope of Section 8(e)." American Boiler Manufacturers Association, 167 NLRB 602, 604, 607. Thus the record indicates that Local 282 had an "interest in preserving work opportunities, not outside tactical aims, which governed the application of" said high rise clause to employers with whom Local 282 enjoyed contractual relations. Allied Supermarkets, Inc., 174 NLRB No. 67. Cf. International Union, United Mine Workers of America, 188 NLRB No. 121. Further, said clause "was not tactically calculated to satisfy union objectives [outside the unit], but rather had the object of preserving unit work for [its members in the unit]." Retail Clerks Union, Local 648, 172 NLRB No. 200. See also Retail Clerks' Union, Local No. 648, 171 NLRB No. 142, and Bituminous Coal Operators Association, 188 NLRB No. 121. Cf. Local 38, International Brotherhood of Electrical Workers, 191 NLRB No. 109. The fact that some of the disputed work was already being performed outside the unit at the time Local 282 pressed its claim does not require a contrary result. This is because I find that such work has been traditionally performed by Local 282. Meat and Highway Drivers, Local 710 v. N.L.R.B., 335 F.2d 709, 714 (C.A.D.C.). And it has been traditionally unit work even though, as I find, some of this work had not been performed currently, continuously, and exclusively. Highway Truck Drivers, Local 107, 159 NLRB 84, 99; Meat & Highway Drivers, Local 710 v. N.LR.B., supra, at 713-714; Canada Dry Corporation v. N.LR.B., 421 F.2d 907, 909 (C.A. 6). In my opinion, Hoffman v. General Teamsters Local 386, D.C.E.D. Cal., 77 LRRM 2049, is distinguishable. Other cases, while perhaps not widely divergent on their facts, nevertheless are sufficiently different so that they are distinguishable and, therefore , call for the application of that principle which characterizes such facts as violating Section 8(e) of the law. In this category mention may be made of Milk Drivers Union, Local 753, 159 NLRB 1459, enfd. 392 F.2d 845 (C.A. 7); Reno Employers' Council, 168 NLRB 893; and Sheet Metal Workers Local No. 150, 170 NLRB No. 116. Cf. Preformed Metal Products Company, Inc., 173 NLRB No. 55; Retail Clerks Local Union No. 1288 v. N.LR.B., 390 F.2d 838 (C.A.D.C.); Alexander & Baldwin, Inc., et al., 192 NLRB No. 43. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally, on this aspect of the case I find that the validity of the high rise clause is not impaired because it is not restricted to a particular jobsite but extends to any jobsite where a signatory employer proposes to do business with another party. Mechanical Contractors Association of Maryland, Inc., 190 NLRB No. 77. B. As to Fortunato At all times material herein Local 282 has been recognized by Fortunato as the collective-bargaining representative of its employees in an appropriate unit composed of automobile chauffeurs, Euclid and Turnbull operators, and drivers of six-wheeler tractors and trailers. Fortunato for many years has signed an excavating contract with Local 282 covering the former's truckdrivers. The last of such contracts expired at the end of June 1969. However, I find, crediting the General Counsel's evidence and not crediting the evidence of Local 282 not consonant therewith, that the parties agreed to renew the same, with some modifications, for another 3 years; that Fortunato signed said renewed contract; that Fortunato forwarded said signed instrument to Local 282 for the latter's signature; and that Local 282 never returned this docu- ment to Fortunato. In this connection, I find that Fortunato paid fringe benefits and wages called for by its terms. Fortunato also continued to make remittances to various funds as required by the excavating contract which was renewed for the period from 1969-1972, and in the manner and amounts provided by said excavating agreement. See General Counsel's Exhibits 21 and 22. The foregoing conclusion is not vitiated by the fact, which I find, that at a meeting with Local 282 on March 20, 1970, Fortunato promised to meet with the Building Trades Employers' Association of Long Island to discuss the high rise contract with Local 282. This is because Fortunato did no more than promise to consider a cancellation of the excavating contract. It is true, and I rule, that a contract, such as the excavating contract, may be revoked or terminated by the mutual agreement of the parties. But I expressly find that Fortunato did not so agree by merely promising to discuss entering into a different contract. Accordingly, I find that the picketing of Fortuna- to at the Hempstead High School job by Local 282 (see General Counsel's Exhibit 14) from about March 10 to 20, 1970, violated the Act because it was designed to cause Fortunato to sign another contract at a time when the parties were bound by an existing contract. Nevertheless, I find that said picketing is primary. It also conforms to the Moore Drydock standards in 92 NLRB 549. Hence I find that the fact that the electricians and carpenters employed by other employers than Fortunato honored said picket line and for some period refused to work behind it did not amount to a secondary boycott. This is because the honoring of a primary picket line by secondary employees, without more, does not convert such picketing into a secondary boycott. Nor do I find a secondary boycott in the fact, which I find, that truckdrivers of suppliers and material men refused to complete their deliveries after speaking to the pickets, because the record is silent as to the content of such conversations. This is true also as to Buckley, a driver for employer Picone, who refused to cross said picket line after being told by "some men" that "the job was on strike." Absent evidence identifying such "men," I am unable to find that they were actually or impliedly authorized to speak on behalf of Local 282. Nor is a different result dictated because Buckley's dispatcher, on inquiry from Buckley, directed him to return to Picone's yard with the load. Nothing in the record connects said dispatcher with Local 282, so that his instructions cannot be considered the conduct of said union. A similar finding is hereby made as to John Erbis, a truckdriver for K & B Sheet Metal, who was delivering material to said Hempstead High School job. While I find that a picket told Erbis that the picket "was going to call the union delegate," said picket also informed Erbis, upon inquiry as to whether Erbis could enter the jobsite, that the picket could not stop Erbis. On this evidence I find that no inducing or encouraging of Erbis not to perform services for his employer occurred. Thus I find no proscribed secondary conduct took place by reason of this incident. Accordingly, I find no violation of Section 8(b)(4)(i) or (ii) of the Act at Hempstead. Finally, I find that Local 282 has violated Section 8(b)(3) of the Act by failing to sign the excavating contract to which it and Fortunato agreed and which Fortunato has signed. C. As to Remsco As noted above, Walsh, the general contractor, on or about February 2, 1968, awarded a subcontract to Remsco to install the mechanical plumbing and piping systems, together with related services, at the Silver Lake Park Water Storage Tanks in Staten Island, New York., See General Counsel's Exhibit 17. In April 1970, the Local 282 job steward at the site suggested to a supervisor of Remsco that Remsco keep its truck off the job. Such trucks of Remsco were driven by its employees who were members of Plumbers Local 371. Remsco has a collective-bargaining contract with Local 371. See General Counsel's Exhibits 16 and 19. At some time in early 1970 Local 282 insisted that its contract with Walsh gave this work to members of 282 who were employed by Walsh; that Local 282 would not allow members of any other union to do it; and that if plumbers continued to do this work Walsh would not "get any concrete on the job." On these facts I find no inducement or encouragement of secondary employees. Patently, the words used constitute no more than a suggestion. For the same reason such words do not rise to the stature of threatening, coercing, or restraining, even though the expression "would not get any concrete on the job" was used. In my opinion such words do not contravene said section of the Act. In any event, such words were uttered to Remsco and not to Walsh; therefore no threat was made to Walsh concerning cessation of its business. Hence I find that no violations of Section 8(b)(4)(i) or (ii) of the Act have been established respecting the conduct of Local 282 towards Remsco. D. As to Rehner As stated above, Walsh Construction Company, the LOCAL 282, TEAMSTERS construction manager of South Beach Psychiatric Center in Staten Island, New York, manages and supervises the other contractors engaged at said site. One of those supervised by Walsh is Rehner, who has the contract to install all plumbing thereat. However, no contractual arrangement exists between Walsh and Rehner. In June 1970, following a contention of Local 282 that Rehner was not abiding by "certain agreements with" Local 282, said Local picketed Rehner at said site. See General Counsel's Exhibits 18A and 18B. Said picketing was pursuant to a prior request of Local 282 to Rehner that Rehner's truck visiting the site, which heretofore had been operated by a supervisor or by an employee belonging to Local 371 of the Plumbers Union, had to be operated by a member of the Teamsters union. Since Walsh had no contract with Rehner, I find that Local 282 could not lawfully demand that Walsh apply the high rise clause (see paragraph 19 of the consolidated complaint) to Rehner's trucks. Hence the threat of Local 282 to Walsh to picket amounted to a threat, coercion, and restraint of Walsh within the meaning of Section 8(b)(4)(ii)(B) of the Act. Cf. N.L.R.B. v. Carpenters District Council of Kansas City, 439 F.2d 225 (C.A. 8). However, since this threat was never communicated to the owner of the Psychiatric Center, Mental Hygiene Corp., I find that no threat, coercion, or restraint occurred as to it. And I find that some of the picketing, i.e., that which does not identify any primary employer (General Counsel's Exhibit 18(b)), is secondary picketing and thus contravenes Section 8(b)(4)(i) of the Act within the purview of Moore Drydock Co., supra. On the other hand, that picketing which specifically names Rehner as the primary employer complies with the conditions delineated in said Moore Drydock case, and therefore cannot be treated as,secondaiy picketing. (See General Counsel's Exhibit 18(a)). Cf. Local 38, LB.E. W., 191 NLRB No. 109. Further, I find that an object of said coercion and said secondary picketing is to force or require Mental Hygiene Corp. to cease doing business with Rehner and other contractors, including Queens Construction and Post Construction, engaged in work or services at said site, and to force or require other persons, including Victor Plumbing, to cease doing business with Rehner at said site, and that such object is illegal under Section 8(b)(4)(B) of the Act. Local 38, I.B.E. W., 191 NLRB No. 109, does not dictate a contrary result. Finally, on this branch of the case I find that the drivers of some trucks making deliveries to said site turned away without completing such deliveries after speaking to DeVito of Local 282 or pickets at the jobsite. But the content of said conversations is not disclosed in the record. Accordingly, I am unable to find that this conduct by DeVito and the pickets constitutes a violation of Section 8(b)(4)(i) or (ii) of the Act absent evidence as to what was said to such truckdnvers. E. As to Other Incidents Pertaining to the Issues Herein These incidents are recited above in section III(D). I credit the evidence recited in said section. Although there are a few variations therefrom, the general pattern 695 indicates that contractors belonging to employer associa- tions with which Local 282 has contractual relations let out some work to subcontractors ; that many of such subcon- tractors used materials and supplies at the jobsites; and that said materials or supplies were delivered to such sites either in the trucks of such subcontractors or in the trucks of the vendors thereof. Further, I find that subcontractors who used their own trucks to effect such deliveries did not employ members of Local 282 to drive such trucks, and that Local 282 demanded such truckdriving work at the jobsite. But I find that such demand did not contravene Section 8(e) of the Act. This is because Local 282 lawfully was empowered to claim this work under the high rise clause of the contract which it had with said employer associations and which extended to work at jobsites where such members were engaged as contractors . I consider such demand as a work preservation tactic . See the first proviso in Section 8(e) of the Act. Accordingly, I shall recommend that this aspect of the complaint be dismissed. In my opinion Pacific Electrical Contractors, 192 NLRB No. 43, is distinguisha- ble. The evidence recited in said section III(D) of this Decision also discloses, and I find, that a large number of said subcontractors received their materials and supplies at the jobsite in trucks manned by employees of the vendors of such materials and supplies; that many of such truckdnvers did not belong to Local 282; and that Local 282 demanded the work of driving such trucks at the jobsites. Nevertheless I find that such demand is lawful because it claims work fairly comprehended by the high rise clause of the contract between Local 282 and the employer associations, the members of which may be engaged as contractors at such jobsites. Stated differently, I find that the work of driving such trucks at the jobsites, as distinguished from driving them to and away from such sites, is work belonging to Local 282 and that Local 282 was lawfully entitled to insist that its members enjoy it. Hence I shall recommend that this phase of the complaint be dismissed. VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of Local 282 set forth in section V, 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 of commerce. VII. THE REMEDY Having found that Local 282 has transgressed Section 8(b)(4)(i)(B) and (ii)(B) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. On the record before me I find that Local 282 is likely to engage in such conduct in the future at jobsites where employers with which it has contracts are engaged as contractors. Consequently, the recommended Order will provide that Local 282 refrain from so-called secondary 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD boycotts at jobsites where such employers are engaged in such work. Local 282 also violated 8(b)(3) of the Act. Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Local 282 is a labor organization within the meaning of Section 2(5) of the Act. 2. Each of the persons described in section I, above, of this Decision is an employer within the meaning of Section 2(2) and is engaged in commerce as defined in Section 2(6) and (7) of the Act. 3. All Fortunato's automobile chauffeurs, Euclid and Turnapull Operators, and drivers of six-wheeler (three axle) tractors and trailers employed by it constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 and 8(b)(3) of the Act. 4. By (a) picketing Fortunato at the Hempstead High School job to obtain a contract with a high rise clause, and (b) refusing to execute an excavating contract orally agreed on by Local 282 and Fortunato, Local 282 has engaged in unfair labor practices condemned by Section 8(b)(3) of the Act. 5. By threatening to picket Walsh Construction Com- pany for not applying the high rise clause to Rehner, Local 282 has engaged in unfair labor practices prohibited by Section 8(b)(4)(ii)(B) of the Act. 6. By picketing (see General Counsel's Exhibit 18(b)) in connection with its labor dispute with Rehner but without identifying the primary employer, Respondent has engaged in unfair labor practices contrary to the provisions of Section 8(b)(4)(i)(B) of the Act. 7. Local 282 has not committed any other unfair labor practices alleged in the complaint. [Recommended Order omitted from publication.]