Bldg. Material & Construction Teamster No. 216

1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Building Material & Construction Teamsters Union Local No. 216, International•Btotherliood of,Team- sters, Chauffeurs, Warehousemen & Helpers of America .and Bigge Drayage Company. Cases 20-CE-65 and 20-CD-294 August 24, 1972 DECISION AND ORDER On July 21, 1971, Trial Examiner James R. Webster issued the attadhed Decision in this pro- ceeding. Thereafter, the Respondent Union filed exceptions and a supporting brief, and the General Counsel and the Charging Party each filed cross- exceptions and answering briefs. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order, as modified herein. The Board is in unanimous agreement with the Trial Examiner that the Respondent violated Section 8(b)(4)(ii)(D) of the Act by threatening, coercing, and restraining the Trucking Division of Bigge Drayage Company i and other companies with an object of forcing or requiring Drayage to assign certain work to employees who are members of the Respondent, Teamsters Local 216, rather than to employees who are members of Teamsters Locals 70 and 85. A majority of the Board (Chairman Miller and Members Kennedy and Penello) also agrees with the Trial Examiner that the Respondent violated Section 8(e) of the Act by entering into2 the aforesaid contract with Crane to the extent that the contract restricts, as it does in section 30(C), the subcontract- ing by Crane of work relating to the hauling of heavy prestressed concrete girders, which is work that Crane and its employees have never performed.3 Section 8(e) was enacted to supplement existing prohibitions against secondary boycotts by making unlawful "any contract or agreement, express or implied," whereby the employer agrees not to handle products of another employer or agrees to cease doing business with any other person. As the Supreme Court explained in the National Woodwork case,4 the intention of Congress was not to prohibit I The Trucking Division, herein called Drayage , and Bigge Crane and Rigging Company , herein called Crane , are divisions of Bigge Drayage Company During critical periods, Drayage was under contractual relations ,ith Teamsters Locals 70 and 85, and Crane was under contractual relations with Teamsters Local 216, the Respondent herein, by virtue of their respective memberships in the Northern and Central California Chapter, the Associated General Contractors of America, Inc, and the Heavy, Highway, Building and Construction Teamsters Committee for Northern California 2 The actual execution of the contract predated the Act's 10(b) period herein, but the Trial Examiner found a renewed "entering into" for 8(e) all union-employer agreements which may hive the incidental effect of a cessation of business with another employer. Rather, Congress envisioned that Section. 8(e) would embody the distinction between lawful "primary" and unlawful "secondary" boycott activity made in Section 8(b)(4). In examining contractual provisions under Section 8(e), the Court said,. "The touchstone is whether the Agreement or its maintenance is addressed to the labor relations of the contracting employer vis-a-vis his own employ- ees."5 Thus, when the agreement is intended to protect and preserve unit work it is primary and permissible, whereas an agreement "tactically calcu- lated to satisfy union objectives elsewhere" is secondary and impermissible. The determination must be made on the basis of all the attendant circumstances. The pertinent facts and circumstances in this case are as follows: Under AGC contracts, Respondent has represented drivers in the construction industry for many years. The work of these drivers consists generally of hauling dirt, rock and debris, asphalt, and other materials and supplies. None of the employer-parties, to' the' contract ever hauled pre- stressed concrete girders. Indeed, none of them have the necessary equipment for such work. Though the contract's coverage was extended in 1968 to embrace classifications which are described to perform this work, to which the subcontracting provisions of the contract noted above was to become applicable, it does not appear that the classifications were included in anticipation of the AGC members undertaking the work. As already indicated, they never did. The disputed hauling work continued to be performed, as it was theretofore, by employers who were members of the California Trucking Associa- tion and who employed members of Teamsters Locals 70 and 85. However, subsequent to the addition of the above-mentioned hauling classifica- tions in the AGC contract, Respondent sought to acquire such work for its members, claiming entitle- ment to it under the AGC contract. It also sought to impose the obligations of the subcontracting provi- sions upon the subcontractor who performed this work.6 purposes by virtue of Respondent's enforcement of the contract within the 10(b) period 3 The contract provisions involved are set forth in sec 111, D, of the Trial Examiner's Decision a National Woodwork Manufacturers Association, et at v N L R B, 386 U S 612, 637-639 (1967). 5 Id at 644-645 6 Craig, president and business agent of the Respondent , testified that "we want the men who are driving those trucks to receive the benefit of this contract as wages, working conditions and fringe benefits would apply" 198 NLRB No. 130 BLDG. MATERIAL & CONSTRUCTION TEAMSTERS NO. 216 1047 It thus appears that the Respondent has entered into a contract? which, insofar as the work of hauling prestressed concrete girders is concerned, limits subcontracting to those employers who would observe section 30(C) and (D). Since the employers who are parties to the AGC contract were not engaged in this type of hauling, nor are shown even to have anticipated its performance, the object of this restriction was not the preservation or protection of unit work. If it served no primary purpose, it is only reasonable to conclude that its aim was a secondary one, as this record amply demonstrates. To the extent noted, therefore, a majority of the Board (Chairman Miller and Members Kennedy and Penello) finds an 8(e) violation.8 In order to remedy this violation, Respondent will be ordered to cease and desist from maintaining, giving effect to, or enforcing the subcontracting clauses of its AGC contract with Crane, insofar as the agreement restricts the subcontracting of nonunit work relating to the hauling of prestressed concrete girders.9 A majority of the Board (Members Fanning, Jenkins, and Penello) would not, however, find that subsections (C) and (D) of section 30 of the AGC contract are unlawful union signatory clauses pros- cribed by Section 8(e) of the Act. Consistent with the majority position in General Teamsters Local 386 ` onstruction Materials Trucking, Inc.), 198 NLRB issued this date, this majority would find these subsections lawful in their impact on unit work, such as was there involved.10 Because, in this connection, this majority would find that the contract provisions in question are unambiguous on their face, Union Agent Craig's alleged implementation thereof does not have the relevance to them that is given to it by the minority view of Chairman Miller and Member Kennedy. General Teamsters, Local 982 (J. K Barker Trucking Co.), 181 NLRB 515, enfd. 450 F.2d 1322 (C.A.D.C.); International Brotherhood of Boilermak- ers, Local 92 (Bigge Drayage Co.), 197 NLRB No. 34. In any event, Craig's testimony and behavior subsequent to the execution of the contract herein clearly show that he considered Bigge bound to the noneconomic provisions of the contract because of his erroneous belief that Bigge and Crane (a party to the contract) were a single employer. Besides, it The 1968 AGC contract was reaffirmed and implemented by the Respondent during the critical period herein 8 Teamsters Local No 688, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Schnuck Markets, Inc), 193 NLRB No 109, Culinary Alliance and Hotel Service Employees Union Local 402 (The San Diego Civic Facilities Corporation), 175 NLRB 161 , Local Union No 26 of Sheet Metal Workers' International Association (Reno Employers Council), 168 NLRB 893 9 Contrary to the Charging Party's exception, it is found that the Trial Examiner's recommendation that the Respondent post notices at its business offices and meeting halls will be sufficient in this case to effectuate appears that the practices and requirements unilater- ally imposed by Craig were in no way sanctioned by the contract, even by its noneconomic provisions. Thus, the manner in which the health, welfare, and pension portions of the agreement were implemented were no more required by the contract than Craig's insistence that his Union's members be hired for the hauling work herein, as found by the Trial Examiner. Chairman Miller and Member Kennedy disagree on this issue for the reasons set forth in their dissent in General Teamsters Local 386, supra. They find reinforcement for their view in the testimony of Respondent's president and business agent, Dallas Craig, who stated that Respondent construes- and applies section 30(C) as requiring compliance by the subcontract with noneconomic as well as economic programs of the agreement. Thus, Craig testified that the subcontractor would be expected to comply with the prejob conference provision of section 3(B) of the agreement, which clearly is not an economic -provi- sion. Furthermore, when asked how the employer to whom the work was subcontracted was to comply with the health, welfare, and pension portions of the agreement, Craig asserted the contributions would have to be made into the specific Northern Califor- nia Teamsters Security Fund, a construction team- sters trust fund, through the device of placing the employees of the non-signatory subcontractor on the employment roster of the primary employer. This admitted requirement of making payments to a specified trust fund, especially by means of placing the employees of a subcontractors onto the payroll of the primary employer, demonstrates to Chairman Miller and Member Kennedy that the clause requires more than payment to employees of the subcontrac- tor of an amount equal to or greater than the total economic benefits contained in the Construction Teamsters Master Agreement. They view the testi- mony of Dallas Craig as establishing that section 30(C) was intended to enhance the health and welfare and pension trust funds of the Construction Teamsters Unions, even though the employees of the subcontractor are not members of the Construction Teamsters Union, likely would never become mem- the Act's policies 10 Members Fanning and Jenkins, although participating in this majority position, would note they would not find an 8(e) violation on any basis In their opinion, the work of hauling concrete girders is so closely related to the operation of hauling heavy equipment which is performed by members in the bargaining unit that it may be said to be fairly claimable by them The Respondent was therefore entitled to protect such work as it did in its agreement with Crane For, fairly claimable work may, without violating Section 8(e), be protected by subcontracting provisions or union standards clauses in the bargaining agreement . Meat and Highway Drivers, Local 710, Teamsters [Wilson & Co ] v N L R B, 335 F 2d 709 (C.A D C) 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bers of that Union, and would not receive any 2. Substitute the attached notice for the Trial benefits from those payments.ii In the view of Examiner's notice. Chairman Miller and Member Kennedy, therefore, such payments must have been intended to benefit Respondent in a more general sense, including its members who are not encompassed by the contract unit. Respondent also took the position that any deficiency payments would have to be made to specific out-of-work members of Respondent rather than to employees of the subcontractor actually performing the work. In the minority view of Chairman Miller and Member Kennedy, therefore, this interpretation of the subcontracting clause goes beyond a legitimate work preservation objective and is "tactically calculated to satisfy union objectives elsewhere." The following order will be entered in order to remedy the 8(b)(4)(ii)(D) violation and the finding of an 8(e) violation based solely on the extent to which the contract restricts, in section 30(C), the subcon- tracting by Crane of work relating to the hauling of prestressed concrete girders. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Building Material & Construc- tion Teamsters Union Local No. 216, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order, as modified below: 1. Delete paragraph 1(a), substitute the following paragraphs as 1(a) and (b), and reletter the former paragraph 1(b) as 1(c): "(a) Maintaining, giving effect to, or enforcing section 30(C) and (D) of its AGC collective-bargain- ing agreement with Bigge Crane and Rigging Company, insofar as those provisions restrict the subcontracting of work relating to the hauling of prestressed concrete girders. "(b) Entering into, maintaining, giving effect to, or enforcing any other contract or agreement with any members of the Northern and Central Chapter of the Associated General Contractors of America, Inc., whereby such employer ceases or refrains, or agrees to cease or refrain, from handling, using, selling, transporting, or otherwise dealing in any of the products of any other employer, or from doing business with any other person in violation of Section 8(e) of the Act." I1 Craig also testified that Respondent would not permit a subcontractor to make payments to its own employees' trust funds equal to that required by the Construction Master Agreement Chairman Miller and Member Kennedy note, therefore, that payments to Respondent's trust funds would of course afford no demonstrable benefits to Bigge Trucking 's or another subcontractor's employees, nor would they tend to diminish any economic advantage on the part of the signatory employers from subcontracting unit work APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain, give effect to, or enforce section 30(C) and (D) of our collective- bargaining agreement with Bigge Crane and Rigging Company, insofar as the agreement restricts the subcontracting of work relating to the hauling of prestressed concrete girders. WE WILL NOT enter into, maintain, give effect to, or enforce any contract or agreement with any member of the Northern and Central Chapter of the Associated General Contractors of America, Inc., whereby such employer ceases or refrains, or agrees to cease or refrain, from handling using, selling, transporting, or otherwise dealing in any of the products of any other employer, or from doing business with any other person in violation of Section 8(e) of the Act. WE WILL NOT threaten, coerce, or restrain Bigge Crane and Rigging Company or the Trucking Division of Bigge Drayage Company or Hensel Phelps Construction Company or Castcon, Inc., for an object of forcing or requiring the Trucking Division of Bigge Drayage Company to assign the work of hauling prestressed concrete girders over highways and streets in the counties of San Francisco and San Mateo to employees who are members of this Union rather than to employees who are members of Teamsters Locals 70 or 85, or of any other labor organization. BUILDING MATERIAL & CONSTRUCTION TEAMSTERS UNION LOCAL No. 216, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA (Labor Organization) BLDG. MATERIAL & CONSTRUCTION TEAMSTERS NO. 216 1049 Dated By (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, 13018 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 415-556-3197. of Bigge Drayage Company is engaged in the over -the-road transporation of large and heavy items. Bigge Drayage Company is an employer engaged in commerce and in an industry affecting commerce within the meaning of Section 2(6) and (7) and 8(b)(4) of the Act. I find that Hensel Phelps Construction Company and Caputo Construction Company, general contractors, and Castcon, Inc., fabricator of prestressed concrete, are employers engaged in the building and construction industry, and are, therefore, employers engaged in an industry affecting commerce within the meaning of Section 2(7) and 8(b) (4) of the Act.' II. THE LABOR ORGANIZATIONS INVOLVED TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES R. WEBSTER, Trial Examiner: This case was heard in San Francisco, California, on December 15 and 16, 1970, and January 18 and 19, 1971. The complaint and amendments thereto were issued on August 13, August 28, and on October 29, 1970. The charges were filed in Case 20-CE-65 on January 14, 1970, and in Case 20-CD-294 on February 26, 1970. The complaint alleges that Respon- dent has entered into a contract with the Northern and Central Chapter of the Associated General Contractors of America, Inc., to the effect that members of that Association will not subcontract the work of hauling heavy prestressed concrete girders over highways and streets within Respondent's geographical jurisdiction unless such subcontractors comply with terms and conditions in said contract; that Respondent has thereby violated Section 8(e) of the National Labor Relations Act, herein called the Act. The complaint also alleges that Respondent has threatened several employers to cause the Trucking Division of Bigge Drayage Company to assign the work described above to members of Respondent rather than to employees represented by other unions, and that Respon- dent has thereby violated Section 8(b)(4)(ii)(D) of the Act. Upon the entire record and my observation of the witnesses and after due consideration of the briefs filed by the General Counsel, the Charging Party and the Respon- dent, I make the following: FINDINGS OF FACT 1. THE BUSINESSES OF THE EMPLOYERS Bigge Drayage Company, a California corporation, with place of business in San Leandro, California, is engaged as a common carrier in intrastate and interstate hauling by motor truck. During the past year, Bigge Drayage Company received in excess of $50,000 for services performed directly to customers located outside the State of California. Bigge Crane and Rigging Company is a division of Bigge Drayage Company and is engaged in performing crane and egging services for contractors in the building and construction industry. The Trucking Division Building Material and Construction Teamsters Union, Local No. 216, of San Francisco, California, herein referred to as Respondent, is a labor organization within the meaning of Section 2(5) of the Act. Teamsters Local No. 70 of Oakland, California, and Teamsters Local No. 85 of San Francisco, California, are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Issues 1. Whether the work of hauling heavy prestressed concrete girders over public highways and streets for delivery to construction sites in San Francisco County, California, which work was performed by Bigge's Trucking Division, is "unit work" or fairly claimable as unit work of the employees of Bigge Crane and Rigging Company represented by Respondent; that is, is the objective of Respondent's subcontracting clause in its contract with Bigge Crane and Rigging Company "work preservation" or an effort to control the labor relation of nonunit employ- ees? 2. Did Respondent through statements of representa- tive Dallas Craig threaten Bigge's Trucking Division and other employers with work stoppages for an object of forcing or requiring Bigge's Trucking Division to assign the work in dispute to members of Respondent rather than to members of Teamsters Locals 70 and 85, and thereby violate Section 8(b)(4)(D) of the Act? And if so, does this constitute an "entering into " of the contract on these occasions, the initial execution of said contract having occurred more than 6 months prior to the filing of the initial charge herein. 3. Did Respondent and Teamsters Locals No. 70 and 85 enter into an effective voluntary adjustment of the jurisdictional dispute involved herein? B. The Work Involved Respondent represents truckdrivers employed in the construction industry, including highway, general building, and heavy construction, in the counties of San Francisco and San Mateo, California. It is a party to a collective- bargaining agreement with the Northern and Central I Local 20, Sheet Metal Workers Union (Bergen Drug Co), 132 NLRB 73 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD California Chapter of the Associated General Contractors of America, Inc., herein referred to as the AGC. Bigge Crane and Rigging Company was at all times material herein a member of the AGC and was therefore a party to the contract between the AGC and Respondent. At the time of the hearing herein Bigge Crane and Rigging had withdrawn from its membership in the AGC. Teamsters Locals 70 and 85 represent drivers engaged in over-the-road and local hauling and are parties to a contract with the California Trucking Association, herein referred to as CTA. Bigge's Trucking Division is a member of this association and Teamsters Locals 70 and 85 represent its employers. In 1969 and 1970, Bigge Crane and Rigging Company was engaged in two construction projects, in the San Francisco area which were the subject of its dispute with Respondent. One was the construction of a phase of the San Francisco Rapid Transit System at Crystal and Modock Streets in San Francisco, California, herein referred to as the Crystal Street project. The other was a state highway construction project in San Francisco, California, known as the China Basin project. On the Crystal Street project, general contractor Hensel Phelps subcontracted the manufacture, transportation, and erection of prestressed concrete girders to Castcon Inc., of Richmond, California. Castcon in turn subcontracted the transportation and erection of the girders to Bigge Crane and Rigging Company. Bigge Crane and Rigging Compa- ny in turn subcontracted the transportation of the girders to Bigge's Trucking Division. Castcon transported the girders by barge from its plant in Richmond , California, to Pier 42 in San Francisco. Bigge's Trucking Division transported these girders from Pier 42 to the Crystal Street jobsite. The girders were approximately 70 feet in length and weighed as much as 100 tons. At the China Basin project, the general contractor, Caputo Construction Company, subcontracted to Castcon, the manufacturer, transportation and erection of similar prestressed concrete girders. In February 1970, Castcon contracted with Bigge Crane and Rigging for the transpor- tation and erection of these girders . Bigge Crane and Rigging again subcontracted to Bigge's Trucking Division the transportation of these girders. Some of the girders were picked up by the Trucking Division at Castcon's Richmond, California, plant and transported to the China Basin jobsite . Other girders, approximately 50 in number and being of larger size and weight , were delivered by Castcon by barge to San Francisco, where they were loaded on trucks of Bigge's Trucking Division and delivered to the China Basin jobsite. `C. Respondent's Claim That This Work Be Performed Pursuant to the AGC Contract Dallas Craig, Respondent's president and business agent, testified that as to the work that was performed completely within the confines of Respondent 's territorial jurisdiction, being the girders that were picked up at a San Francisco pier and delivered to a jobsite in San Francisco , Respon- dent is "entitled to people on the job and our contract must be observed." As to the girders that were picked up at Castcon's plant in Contra Costa County and delivered to the China Basin jobsite in San Francisco, Craig testified that "we want the men who are driving those trucks to receive the benefit of this [AGC] contract as wages, working conditions and fringe benefits would apply." To comply with the AGC contract, Craig testified that Bigge's Trucking Division should have requested a prejob conference before starting its jobs in San Francisco. This would have been pursuant to section 3B(l) of the AGC contract. Next, that during the prejob conference arrange- ments would be made for Bigge's Trucking Division to hire a member of Respondent for each driver employed on the job from another union ; thus, if Bigge's Trucking Division wanted a crew of 10 men, 5 must be from Respondent. This would be pursuant to section 3C(2)(e) of the AGC contract. Craig referred to it as the 50-50 rule. Craig also pointed out that the contract (section 3B(2)) provides that if a prejob conference is not held , an employer shall be prohibited from utilizing the provisions of section 3C(2)(e) and shall be required to obtain all employees from the employment office of the union in the locality of the job. D. The AGC Contract Provisions on Subcontracting The Construction Master Agreement, which Respondent contends has been violated by Bigge Crane and Rigging and by general contractor Hensel Phelps in the subcon- tracting of the transportation of the girders contains the following provisions on subcontracting. Section 30 - SUBCONTRACTING C. The Employer further agrees that when subcon- tracting work covered by this Agreement which is to be performed within the geographical area covered by this Agreement but which is not to be performed at the site of the construction, alteration, painting or repair of the building, road or other work, he will subcontract such work only to an Employer or person who agrees that the persons performing such work will work in accordance with the schedule of hours and will receive not less than the wages and economic benefits provided in this Agreement including holidays, vacations, prenu- ums, overtime, health and welfare and pension contrib- utions or benefits or their equivalent and any other programs or contributions required by this Agreement and who further agrees to submit any grievance or disputes concerning his performance or compliance with such undertaking to the procedures set forth in Section 15 of this Agreement. As to any Employer who has always subcontracted work involving certain equipment, this paragraph shall not become applicable with respect to work involving such equipment if its validity is challenged by charges filed by the National Labor Relations Board until determination by the National Labor Relations Board or if not by the National Labor Relations Board, by a Court of competent jurisdiction that the provisions are not in violation of the National Labor Relations Act. D. The Employer will give written notice to the Union of any subcontract involving the performance of work covered by this Agreement within five (5) days of BLDG. MATERIAL & CONSTRUCTION TEAMSTERS NO. 216 1051 entering into such subcontract and shall specifiy the name and address of the subcontractor. Any Employer who gives such notice and requires the subcontractor to agree to comply with and observe the provisions of Subsection B hereof with respect to job site work and Subsection C hereof with respect to work performed other than at the job site shall not be liable for any delinquency by such subcontractor in the payment of any wages, fringe, benefits or contributions provided herein except as provided hereinafter. If thereafter any subcontractor shall become delin- quent in the payment or meeting of the obligations set forth above, the Union shall promptly give written notice thereof to the Employer and Subcontractor specifying the nature and amount of such delinquency. More than one such notice may be given with respect to delinquencies. If such notice is given, the Employer shall withhold the amount claimed to be delinquent out of any sums due and owing by the Employer to such Subcontractor and shall pay and satisfy therefrom the amount of such delinquency by such Subcontractor as follows: If such Subcontractor does not dispute the existence or amount of such delinquency, the Employer shall forthwith pay the amount of such delinquencies to the person or fund entitled thereto. Any dispute as to the existence or amount of such delinquency shall be settled by the Union and Subcontractor as provided in Section 15 hereof and the Employer shall pay to the person or funds entitled thereto the amount of such delinquency as so determined and costs incurred. The Employer shall not be liable for any such delinquency occurring more than sixty (60) days prior to the receipt of such written notice from the Union. E. Threats Made by Respondent in Asserting its Claim to the Work in Dispute In December 1969, Dallas Craig, president and business agent of Respondent, learned that Bigge's Trucking Division was transporting girders in San Francisco from Pier 42 to the Crystal Street project. He considered this to be "a complete violation of my agreement [the AGC contract]." On December 14, 1969, he telephoned Glen C. Holtwick, assistant manager of Bigge Trucking at his residence. Craig told Holtwick that he believed his company was in violation of the current AGC contract; that he had observed members of the Teamsters Locals 70 and 85 performing this work; that this work belonged to members of his Union, and if Holtwick did not replace the drivers from Locals 70 and 85 with his men by 8 o'clock the following morning, he would have to picket at the pier. Holtwick replied that he did not know that his company had a contract with Respondent; that both Bigge Crane and Rigging and Bigge Trucking were involved in this project. He asked Craig to postpone picketing or taking any action until he returned to his office and to notify Holtwick before any picketing was instituted. Craig agreed to do this. Craig then called a representative of the California Trucking Association who agreed to look into the matter. The next action taken by Craig was the filing of a grievance against Bigge Crane and Rigging Company and against general contractor Hensel Phelps on December 29, 1969. A grievance meeting was conducted on February 16, 1970. Respondent charged that Bigge Crane and Rigging and Hensel Phelps had violated Sections 3 B, 30 A, 30 C, and 30 D of the construction master agreement dealing with subcontracting. At this meeting, Craig stated that section 30, paragraph C, of the contract was either valid and meant what it said or it was not, and the matter should be adjudicated at that time and at that place; that if Bigge attempted to bring the girders in from Pier 42 (without complying with the contract), Respondent would picket. At this meeting, Holtwick stated that he had no knowledge of the contract with Local 216 and was operating within the framework of the CTA agreement. Prior to this meeting and on February 16, 1970, the charge in Case 20-CE-65 was filed. In view of this, the board of adjustment hearing the grievance decided to defer the determination of its merits until the National Labor Relations Board has completed the processing of the pending charge alleging a violation of Section 8(e) of the Act. On March 17, 1970, at a meeting in Sacramento, California, Craig advised Donald Jeffers, director of labor relations for AGC, that Bigge Company had a contract to haul girders to the China Basin project, and if they attempted to move girders from the pier in San Francisco to the China Basin job, Respondent would strike them. Jeffers stated that Bigge Crane and Rigging Company was a division of Bigge Drayage Company and was separate from the drayage division. Craig stated that as far as he was concerned they were the same company. On April 10, 1970, Craig called Jeffers and informed him that if anyone hauled the disputed girders with trucks not driven by members of Respondent, Respondent was going to strike the China Basin job.2 On the same morning, Craig called George Williams, manager of Castcon, and told him that Respondent had a difference of opinion with Bigge in regard to the transportation of the structural girders. He asked that Castcon use its influence or advise Bigge that it was a serious situation and should be resolved. Williams asked Craig what would happen if the controversy were not resolved, and Craig replied that it might be necessary to picket the off-load point in San Francisco (where the girders were transported by barge by Castcon). The crane used to transfer the girders from the barge to trucks of Bigge Trucking was owned or rented and operated by Castcon. Williams told Craig that he would contact Bigge and find out what the problem was and what they were doing about it. Craig also asked Williams as to the date that the prestressed concrete would be shipped by barge to the pier in San Francisco, and Williams told him that he could not give the exact date when the large girders would be shipped to the San Francisco pier. 2 Craig testified that he did not threaten to close the job down but "to no proof of Craig's words by his action, but I am inclined to the view and strike it," and that he had reference to or stated that he would strike "just find that he did not specify any limitations on his threatened picketing at that portion that would apply to me " Since no picketing occurred there is the China Basin job 1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Craig testified that he made no statement to the effect that he would picket Castcon but that he said "in the event they were to unload the sections in San Francisco by barge, that we would probably have to strike them." Again, it is not clear what employes Craig was referring to with the word "them". Craig testified he was threatening "to put a picket line around Bigge on the ground, not on the dock." I find that Craig did not so delineate the area and object of his threatened picketing and that the normal import of the words used was that the operation of the transfer of the girders from the barge to Bigge's trucks would be picketed. Also in April 1970, Craig had a meeting with Holtwick and Attorney Fastiff regarding the dispute and stated to them that he had informed general contractor Caputo and contractor Castcon that he was going to picket the job unless Bigge signed a local agreement with him-a short form agreement-and employed his men to transport the girders to the China Basinjobsite.3 F. Is the Subcontracting Clause Designed To Preserve Unit Work? A contract violates Section 8(e) of the Act when it specifies and regulates conditions for subcontracting for the object ofregulating the labor relations of a subcontractor, a secondary employer. On the other hand, it does not fall within the proscriptions of Section 8(e) where it specifies and regulates the conditions of subcontracting for the object of preserving the work of the bargaining unit of the primary employer. Thus, which is the objective of Respondent? Is the work in dispute unit work or work of another bargaining unit? Most of the contract clauses on subcontracting consid- ered in connection with Section 8(e) of the Act fall generally into two classes: (1) union signatory and (2) union standards. The first precludes subcontracting with any employer who is nonunion -and is directed at the identity of the secondary employer and at his labor relations. The second precludes subcontracting with any employer whose wages, etc., do not meet union standards and can be motivated by (a) an objection to a subcontrac- tor because of his identity and labor relations (secondary) or (2) by an effort to protect unit work by making the subcontracting of it of no economic advantage to the employer (primary). The General Counsel and Charging Party contend that Respondent's motive is both to regulate the labor relations of subcontractors and to require them to employ members of and sign a contract with Respondent. The AGC contract sets forth its coverage of the work of the bargaining unit as "all work of the Employer falling within the established jurisdiction of the Union, including, but not limited to, building construction, heavy, highway and engineering construction and the performance of work in the classifications listed in Supplement No. 2," (section I B of the AGC contract). Classifications listed in the contract include, among others, drivers of dump trucks, transit mix trucks, water trucks, vacuum trucks, and transport trucks; in 1968, Respondent succeeded in adding 3 This incident is not alleged in the complaint, but it is corroborative of statements I have found that Craig made on other occasions, which are the following classifications to the contract ; double gooseneck transport, seven or more axles, and heavy duty transport tiller man, which are classifications used in the hauling of heavy prestressed concrete. The work of employees in bargaining units represented by Respondent consists generally of hauling dirt, rock, and debris on the jobsite and to points off the jobsite, and the hauling of asphalt, concrete, and other materials and supplies from one point on the jobsite to another point and in some instances both from and to points off the jobsite. But, none of the employers who are parties to the AGC contract with Respondent and therefore none of the bargaining units represented by Respondent have hauled heavy prestressed concrete girders as is involved in the instant case . And, in fact, none of said employers have the necessary equipment for such work. This work has traditionally been performed by bargaining units repre- sented by over-the-road and cartage teamster unions. In the instant case the work was being performed by members of Teamsters Locals 70 and 85 who are in a bargaining unit covered by the master freight agreement and supplements thereto negotiated between these unions and the California Trucking Association, with which Bigge Trucking is affiliated. Respondent cites as precedent for its claim to the disputed work the fact that in 1968 and 1969 an Owl Trucking Company did this type of work in Contra Costa and Alameda Counties, across the bay from San Francisco, under the terms of the AGC contract pursuant to an agreement with Teamsters Local 315, a union which represents both construction teamster units and general teamster units. Owl Trucking Company was based in southern Califor- nia and its employees were represented by Teamsters Local 692 in Long Beach , California. It had a subcontract to transport large girders from Castcon 's plant in Richmond, California, to rapid transit sites. On June 7, 1968, it entered into an agreement with Teamsters Local 315 providing that the agreement was "for movement of approximately 158 girders;" that it was an "agreement without local or contract precedent;" and that "no precedent is set by this agreement and it applies only to this job consisting of 158 girders." The agreement provided that Owl Trucking Company would employ at least one man from Local 315 for each man from Local 692 and that men from Local 315 would be paid 40 hours per week at the AGC contract scale. I find that this agreement and job does not constitute history or precedent for the performance of the work in dispute by construction teamsters. I find that the work in dispute is not "unit work" of the bargaining unit represented by Respondent , nor is it "fairly claimable" as such work. It is work being performed by another bargaining unit represented by another union. The work in dispute is off-site hauling; thus, the proviso to Section 8(e) excluding on-site construction work is not applicable. Section 30C and lB of the AGC contract appear to regulate subcontracting of unit work only, that is, work falling within the established jurisdiction of Respondent. alleged in the complaint BLDG. MATERIAL & CONSTRUCTION TEAMSTERS NO. 216 1053 But the terms "work covered by this agreement" and "falling within the established jurisdiction of the Union" are very general and indefinite. Based on Craig's interpre- tation of the intent of the provisions of the contract and based on actions taken by Respondent to implement the subcontracting provisions of the contract, I find that Respondent's motive in Section 30C is both to regulate the labor relations of other employers and, in certain circum- stances, to require that at least 50 percent of their employees be members of Respondent. It is both "union standards" and "union signatory."4 Section 30C and Section 30D to the extent that it implements the illegal provisions of Section 30C, are designed to cause employers to cease or refrain from doing business with other persons who do not meet the requirements set forth therein and therefore contravene Section 8(e) of the Act.5 The AGC contract involved herein was entered into on August 9, 1968, which date is well outside the 6-month limitation period from the filing of the charge herein, as prescribed in Section 10(b) of the Act. But the Board holds that each act or incident of enforcement of such contract constitutes a renewed "entering into."6 Respondent's efforts to enforce compliance with provi- sions of this contract occurred on December 14, 1969, when Craig contracted Glen C. Holtwick of Bigge Trucking; on December 29, 1969, when a grievance was instituted by Respondent against Bigge Crane and Rigging and against general contractor Hensel Phelps over the alleged violation of the AGC contract; on February 16, 1970, when said grievance was heard; on March 17 and April 10, 1970, when Craig called Donald Jeffers, director of labor relations for AGC on the matter; and in April 1970 when Craig met with Holtwick and Attorney Fastiff. I find that the contract was "entered into" within 6 months of the filing of the charge herein. The complaint alleges only the actions taken by Respondent on December 14 and 29, 1969, as renewed "entering into" the contract ; however, the statements made by Respondent on February 16, March 17, and April 10 to Jeffers and in April 1970 to Holtwick and Fastiff to bring about compliance with the contract were fully litigated as such and constitute further acts of "entering into." Section 8(e) makes it an unfair labor practice for any labor organization or any employer to enter into a contract, expressed or implied, whereby such employer agrees to cease or refrain from doing business with "any other person." In the instant case the "other person" whose labor relations Respondent is attempting to regulate is Bigge's Trucking Division, which Respondent contends is not "another person." Although I find that the contract terms and Respon- dent's interpretation of them as explained by Craig make them applicable to all other employers and persons and therefore I find them to contravene Section 8(e) of the Act for these reasons; nevertheless, I find Respondent's application of the contract terms in the instant case to Bigge's Trucking Division to be for the object of causing Bigge Crane and Rigging Company to cease doing business with "another person." Bigge Crane and Rigging and Bigge's Trucking Division are divisions of Bigge Drayage Company. Yet, each constitutes a different "person" within the meaning of Section 8(e) of the Act. The two divisions are engaged in separate businesses , have separate equip- ment and different employees and different supervision. Labor relations for Bigge Crane and Rigging is handled by the AGC and the labor consultant firm of Robert H. Scarth. The CTA and Glen Holtwick, assistant manager of Bigge's trucking division, handle labor relations for that division.? G. Section 8(b)(4)(D) of the Act It is also contended by the General Counsel and the Charging Party that the statements made by Craig to representatives of Bigge Trucking, Bigge Crane and Rigging, Hensel Phelps and Castcon to induce Bigge Trucking to compliance with the AGC and hire members of Respondent constituted threats, coercion , and restraint for an object proscribed in Section 8(b)(4)(D) of the Act. I find that statements made to Jeffers, director of labor relations for the AGC, and therefore the bargaining representative of Bigge Crane and Rigging Company, and Hensel Phelps Construction Company , were made to him as representative and agent of these companies to induce actions by these companies . Both companies were mem- bers of the AGC. There is no evidence as to Caputo's membership in the AGC. I find that Craig's threats to picket at the pier in San Francisco and to "strike the job," made to Holtwick, a representative of Bigge Trucking, and to Jeffers, a representative of Bigge Crane and Riggings and Hensel Phelps Construction Company and to Williams of Castcon, Inc., constituted threats, coercion, and restraint of persons engaged in commerce or in an industry affecting commerce for an object of forcing or requiring Bigge's Trucking Division to assign the disputed work to employees who are members of Respondent rather than employees who are members of Teamsters Locals 70 and 85. H. The Voluntary Adjustment of the Work Dispute Respondent contends that the Act and the Board's Rules and Regulations require as a prerequisite to the issuance and consideration of a complaint alleging a jurisdictional dispute violative of Section 8(b)(4)(D) of the Act, that it be shown that the unions involved are not complying with either ( 1) a Board's determination of the dispute made pursuant to Section 10(k) of the Act, or (2) a voluntary resolution of the dispute. On September 17 and 18, 1970, Respondent entered into an agreement with Teamsters Locals 70 and 85 setting forth that Respondent "does not claim the work of hauling concrete prestressed girders over public highways for delivery to construction sites where such work is performed 4 Teamsters Local 294 (Island Dock Lumber, Inc), 145 NLRB 484, enfd 342 F 2d 18 (C A 2), Local 437, IBEW (National Electrical Contractors Assn ), 180 NLRB No 32 5 Truck Drivers & Helpers Local Union No 728, 140 NLRB 1436 6 Sheet Metal Workers, Local 216 (Associated Pipe and Fitting Mfgrs), 172 NLRB No 6 7 Los Angeles Newspaper Guild, Local 69 (Hearst Corp), 185 NLRB No 25, American Federation of Television and Radio Artists, Washington- Baltimore Local (Hearst Corp), 185 NLRB No 26 1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Bigge Drayage Company and is assigned to employees who are members of, or represented by, Teamsters Local 70 or Local 85," and "that employees of Bigge Drayage Company who are members of, or represented by, Teamsters Local 70 or Local 85 are assigned , and are entitled to perform the work described above for Bigge Drayage Company." Respondent further contends that as an alternative to a voluntary resolution of the dispute, the Board should have conducted a hearing pursuant to Section 10(k) of the Act making an award of the work in dispute before issuance of complaint. The General Counsel contends that irrespective of the agreement between the unions , Respondent continues to claim the work involved as falling within its jurisdiction and coming within its contract with Bigge Crane and Rigging Company ; that, therefore, the agreement did not resolve the dispute. The General Counsel also contends that in addition to a resolution of the dispute by voluntary means or by a Section 10(b) hearing as prerequisites to a complaint, the Board's Rules and Regulations also provide that if the parties "have agreed upon methods for the voluntary adjustment of the dispute," the Regional Director shall defer action upon the pending charges; and "if it appears to the Regional Director that the dispute has not been adjusted in accordance with such agreed-upon methods and that an unfair labor practice within the meaning of Section 8(b)(4)(D) of the Act is occurring or has occurred, he may issue a complaint." The General Counsel contends that the parties have an agreed-upon method for the adjustment of the dispute set forth in the contract between Respondent and the AGC and its members and that this procedure has not been utilized. The AGC to which Respondent and Bigge Crane and Rigging are parties provides as follows on the matter of jurisdictional disputes, Section 20: There shall be no cessation of orr interference in the work of an Employer by reason of a jurisdictional dispute between the Union and a Union affiliated with the AFL-CIO. Such disputes shall be settled directly between the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, and the Union involved. Bigge's Trucking Division is not a party to this contract, nor are Teamsters Locals 70 and 85. The master freight agreement to which they are parties provides on jurisdic- tional disputes as follows, article 30: In the event that any dispute should apse between any Local Unions, parties to this Agreement . . . and any other Union, relating to jurisdiction over employees or operations covered by such Agreements, the Employer and the Local Unions agree to accept and comply with the decision or settlement of the Unions or Union bodies which have the authority to determine such dispute. . . Thus, although Respondent and Teamsters Locals 70 and 85, and Bigge Crane and Rigging and Bigge Trucking are not all parties to the same contract, the two contracts do provide a means binding all parties for settling jurisdictional disputes; the dispute could be submitted to the International Brotherhood of Teamsters and a resolu- tion of the dispute by it would bind all parties. The unions contend, however, that the dispute has been settled between them by the agreement of September 17 and 18. As there exists an agreed-upon method of settling jurisdictional disputes, no Board determination pursuant to Section 10(k) of the Act is required.8 An issue is whether or not Respondent has in fact entered into a voluntary adjustment of its jurisdictional dispute and has complied therewith. The General Counsel and the Charging Party contend that they have not, and further that irrespective of whether it has or not, an order and remedy should issue to cure the effects of illegal threats made by Respondent during the dispute. Respondent's agreement of September 17 and 18, 1970, with Locals 70 and 85 clearly states that the work in dispute is not claimed by Respondent and may be performed by members of Locals 70 and 85. Yet, according to the testimony of Respondent's business agent and president, Dallas Craig, Respondent claims that this work, nevertheless, comes under its AGC contract and that the employees performing the work should receive wages, fringe benefits, and other programs as specified in this contract, whether they are members of Respondent, Locals 70 or 85, or whatever union. I consider this position inconsistent with the agreement of September 18; as long as Respondent claims that its contract governs the wages and terms of employment of employees performing the work in dispute, it is claiming the work. A resolution of a jurisdictional dispute contem- plates that one of the two contending unions shall have sole and complete jurisdiction over the work in dispute, including not only the placement of its members on the work but the representation of them as to wages and working conditions. I find that the procedure that exists for the voluntary resolution of the jurisdictional disputes herein was not utilized to reach a complete resolution of the dispute. Thus, I deny Respondent's motion to dismiss the complaint in Case 20-CD-294 predicated on the contention that certain prerequisites to issuance of such a complaint have not been met. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of the Respondent, set forth in section III, found to constitute unfair labor practices, occurring in connection with the business of the employer as set forth in section 1, 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. CONCLUSIONS OF LAW 1. Bigge Drayage Company and its divisions, Bigge Crane and Rigging Company and Bigge's Trucking Division, are employers engaged in commerce within the meaning of Section 2(6) and (7) and 8(b)(4) of the Act. 2. Hensel Phelps Construction Company, Caputo Construction Company, and Castcon , Inc., are employers 8 Wood, Wire and Metal Lathers International Union, 119 NLRB 1345 BLDG. MATERIAL & CONSTRUCTION TEAMSTERS NO. 216 1055 engaged in an industry affecting commerce within the meaning of Sections 2(7) and 8(b)(4) of the Act. 3. Building Material & Construction Teamsters Union Local No. 216, Teamsters Local 70, and Teamsters Local No. 85 are labor organizations within the meaning of Section 2(5) of the Act. 4. By entering into sections 30 C and 30 D of the AGC contract whereby employer-parties thereto have agreed to cease and refrain from doing business with certain other persons as described herein, Respondent has engaged in an unfair labor practice in violation of Section 8(e) of the Act. 5. By threatening, coercing, and restraining Bigge Crane and Rigging Company and the Trucking Division, Bigge Drayage Company, and Hensel Phelps Construction Company, and Castcon, Inc., for an object of forcing or requiring Bigge's Trucking Division to assign the work of hauling prestressed concrete girders over highways and streets in the counties of San Francisco and San Mateo to employees who are members of Respondent rather than to employees who are members of Teamsters Locals 70 and 85, Respondent has engaged in an unfair labor practice in violation of Section 8(b)(4)(ii)(D) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, it shall be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. On the basis of the foregoing findings of fact and conclusions of law, and the entire record herein, I recommend that, pursuant to Section 10(c) of the Act, the Board issue the following: 9 ORDER Building Material & Construction Teamsters Union Local No. 216, International Brotherhood of Teamsters, 9 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes is In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Chauffeurs, Warehousemen & Helpers of America, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Entering into and giving effect to sections 30 C and 30 D of the construction master agreement entered into with the Northern and Central California Chapter of the Associated General Contractors of America, Inc. (b) Threatening, coercing, and restraining Bigge Crane and Rigging Company, the Trucking Division, Bigge Drayage Company and Hensel Phelps Construction Company, and Castcon, Inc., for an object of forcing or requiring said trucking division to assign the work of hauling prestressed concrete girders over highways and streets in the counties of San Francisco and San Mateo to employees who are members of Respondent rather than to employees who are members of Teamsters Locals 70 and 85 or any other labor organization. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post in conspicuous places at its business office and meeting halls, including all places where notices to its members are customarily posted, copies of the attached notice marked "Appendix." 10 Copies of said notice, to be furnished by the Regional Director for Region 20, shall, after being duly signed by an authorized representative of Respondent, be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (b) Deliver or mail signed copies of said notice to the Regional Director for Region 20, for posting by Bigge Crane and Rigging Company and the trucking division, Bigge Drayage Company, and Hensel Phelps Construction Company, and Castcon, Inc., if willing, at locations where notices to employees are customarily posted. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the receipt by Respondent of a copy of this Decision, what steps it has taken to comply herewith." Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 11 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith "