Teamsters Local 282 (Allco Concrete Products)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 282, International Brotherhood of Teamsters and United Brotherhood of Industrial Workers Local 424 and Allco Concrete Products, Co., Inc. and Building Contractors Association, Inc., Party to the Contract. Cases 29-CE-37 and 29-CE-38 February 8, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On October 25, 1977, Administrative Law Judge Julius Cohn issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Local 282, International Brotherhood of Teamsters, New York, New York, its officers, agents, and representatives, shall take the action set forth in the said recommend- ed Order. I We do, however, sustain the Respondent's exception to the Administra- tive Law Judge's finding of fact that there were three phases at the Stony Brook construction site. The Stony Brook site, which had only a single phase, was evidently confused with another site at which there were three phases. Nevertheless, this error does not affect the result herein or the rationale of the Administrative Law Judge's Decision which we adopt. DECISION STATEMENT OF THE CASE JULIUS COHN, Administrative Law Judge: This case was heard at Brooklyn, New York, on June 6, 1977. Upon charges filed and served on September 23, 1976, by United Brotherhood of Industrial Workers, Local 424, herein called Local 424, in Case 20-CE-37, and on September 27, 1976, in Case 29-CE-38 by Allco Concrete Products Co., I Respondent's counsel had withdrawn three exhibits for the pupose of duplication and has not returned them despite requests to do so. The three exhibits consist of the collective-bargaining agreement and two prior agreements. I have determined that the presence of the exhibits in the file are not necessary for the preparation and the issuance of this Decision. The pertinent portion of the current agreement, the paragraph in issue, is set 234 NLRB No. 117 Inc., herein called Allco, the Regional Director for Region 29 issued an order consolidating cases and a complaint on April 22, 1977. The complaint alleges that Local 282, International Brotherhood of Teamsters, herein called Local 282 or Respondent, violated Section 8(e) of the Act by giving effect to and enforcing a particular clause in its contract with Building Contractors Association, Inc., here- in called BCA. Respondent filed an answer denying the commission of unfair labor practices. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs submit- ted by the General Counsel and Respondent have been carefully considered. Upon the entire record in this case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. JURISDICTION BCA, a New York corporation, is an association of employers which has among its functions that of bargain- ing collectively on behalf of its employer-members relating to the hire, tenure, and other terms and conditions of employment for the employees of its members with labor organizations. During the past calendar year, employer- members of BCA derived gross revenues in excess of $50,000, in the course and conduct of their operations. During the same period employer-members of BCA pur- chased and caused to be transported and delivered to their respective places of business building supplies, materials, and other equipment valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to such places in interstate commerce directly from States of the United States other than the State in which they are located. The Respondent admits and I find that BCA and its employer-members are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background In 1968 Respondent and BCA negotiated an agreement known as the high-rise agreement which was effective through 1969 and then carried over and renewed until 1972. This agreement contained a clause known as section 9 which provided in pertinent part that: forth verbatim in the complaint and has been stipulated by the parties to be in full force and effect. The relevant portions of the prior collective- bargaining agreements, which may serve as background, are also set forth in sufficient detail in a prior decision of the Board affecting this Respondent and those agreements. Therefore, in order to avoid further delay. I have decided to issue the Decision without the said exhibits. 770 LOCAL 282, INTERNATIONAL BROTHERHOOD OF TEAMSTERS 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 favor- able 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 Metropolitan area may make one drop without comply- ing with this provision. The maintenance and enforcement of section 9 of that agreement gave rise to a proceeding in which the Board found 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." Local Union No. 282, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (D. Fortunato, Inc.), 197 NLRB 673, 678 (1972). In Fortunato the Board limited its findings to the facts of the case and indicated that a properly drafted clause might be found lawful. It did not consider whether a contract provision which is limited to onsite driving might not be appropriate. The Board's decision in Fortunato issued in 1972 just prior to negotiations between Respondent and BCA for a new agreement. The parties thereupon attempted to draft a provision relating to onsite driving and deliveries and pickups at the site which would be valid under Section 8(e) and the decision in Fortunato. There resulted a new section 9 in the 1972 agreement which was subsequently carried over into the current high rise agreement effective in 1975 until 1978. Paragraph 2 of section .9 in the current agreement reads as follows: 2. The driving of all trucks at the site of construc- tion in connection with work which the Employer is contracted to be responsible for, manage, or perform shall be performed by employees of the Employer and covered by this Agreement provided that the Employer may contract or subcontract said work only to an employer or person who is party to or bound by this agreement, regardless of past practice and custom. This section shall not apply to the driving of a truck entering or leaving the site of construction for the sole purpose of making a single delivery and/or single pick up from the construction site of materials, tools or personnel, provided such single delivery and/or pick up may be made only to (or from) a single location per delivery or pick up on the site. A truck making a single delivery to a single location may make a single pick up from a separate single location. The provisions of this Agreement re on-site trucking shall be made a condition of any supply contract, and any contract or subcontract awarded or "managed" by the Employer covered by this Agreement. 2 The parties stipulated that a Paul Sorbera was a working foreman and representative of Respondent at the Stony Brook University site. The parties stipulate that section 9, paragraph 2, of the current agreement as quoted above were in full force and effect at all times material herein. B. Facts General contractors and subcontractors, members of BCA, with whom Respondent has contracts, were involved at a very large construction site of Nassau Community College in Long Island. Work on this project began in May 1974, continued until halted in November 1975, started up again in December 1976, and was continuing at the date of the hearing. In addition, contractors were at work at the Stony Brook campus of the State University on Long Island. Allco, a now defunct company, had been engaged in the manufacture and delivery of concrete blocks, its employees having been represented by Local 424. In August 1976, Allco secured an agreement to supply Bafil Mason Contractors with concrete blocks, pursuant to which, Allco was to manufacture and deliver in their own trucks 60,000 units of concrete blocks to the Stony Brook Campus site. Robert Cooke, president of Allco, testified that he had expected to complete the order by delivering 40 loads. He stated that the first delivery was made on August 16, 1976, and he was advised by his driver that a Teamsters' steward at the jobsite told him that he would not be allowed to make any more deliveries after the first one. The next day Cooke himself went on the jobsite and spoke to a Teamsters steward whom he identified as "Paul." 2 Cooke testified that he was told by Paul that Respondent did not recognize Local 424 because they did not have the same wages and benefits. Paul informed him that, if deliveries were continued, Respondent would call a strike and shut down the project. Cooke went on to state that he was able to continue deliveries for the next 5 or 6 days and completed about 25 percent of the order before Bafil negotiated the purchase of concrete blocks from another company whose employees were represented by Respondent and that company took over his contract. Long Island Material Testimony Company has a con- tract with the State Domitory Authority to test concrete at the Nassau Community College site. It has been doing the testing there since the beginning of the construction in 1974. Robert Bartsch, an employee of Long Island Materi- al Testing, testified that he went to the site about three times a week. The purpose of his visits was to go to three different buildings or phases, as they are called, on the site, pick up cylinders of concrete samples made by the inspectors and take them back to his company, located about 30 miles from the construction site, for testing. On the occasion of each visit Bartsch would also leave empty cylinders at the site. In 1974 not long after the commence- ment of work at the site, Glenn Boggia, a working foreman and also a representative of Respondent, told Bartsch that he was not to go to all three phases but should drop the empty cylinders and pick up the filled ones at a designated box near the main gate of the construction site. This procedure was followed by Bartsch until the construction was halted in November 1975. When the job recommenced 771 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in December 1976 Boggia gave Bartsch the same instruc- tions and repeated that Boggia was not to drive around to the three phases but use the box placed near the entry gate. Boggia last instructed him on this matter on April 9, 1977. The testimony of Cooke and Bartsch, regarding the deliveries of concrete blocks and the picking up of the concrete for testing, is uncontradicted. Glenn Boggia, testifying on behalf of Respondent, admitted directing a driver for Long Island Material to drop off and pick up his cylinders at a designated spot at the main entrance. He also told a Mr. Kramer of Rent-A- John Company that he could only clean one john a day as this was the same as the single delivery or single pickup provision of the agreement. The Rent-A-John Company was a subcontractor of Carlin Atlas, a contractor who was party to the high rise agreement. C. Discussion As already noted the facts are clear and uncontroverted. Basically the issues herein are the same as those involved in Fortunato and the question is whether Respondent and BCA, following the suggestion of the Board in that case, had changed section 9 of the collective-bargaining agree- ment so as to make the revised section lawful. I find in the circumstances that the Respondent has failed in this objective. Respondent urges, as it did with the provision in Fortunato, that paragraph 2 of section 9 of the 1975 agreement refers to onsite trucking which would be protected by the proviso to Section 8(e), exempting from the application of that section any agreements in the construction industry relating to "contracting or subcon- tracting of work to be done at the site of the construction .... " The contractual provision in Fortunato used the words "[T]he driving of all trucks on the work site, or entering or leaving the work site" which were clearly broad enough to include the making of deliveries or pickups. The Board has frequently held that driving to and from construction sites for the purpose of effecting deliveries does not constitute onsite work and hence is not protected by the construction industry proviso of Section 8(e). General Teamsters, Chauffeurs, Warehousemen and Helpers, Local 982, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America (J.K. Barker Trucking Co.), 181 NLRB 515, 517-518 (1970), enfd. 450 F.2d 1322 (C.A.D.C., 1971). This principle was reiterated in Fortunato itself. It is this language in the first sentence of former section 9 that Respondent attempted to change in the current high rise agreement. Indeed, the first sentence of the new section 9 would apply only to onsite driving. However, the second sentence by limiting trucks leaving or entering the site to one pickup or delivery impliedly subjects those trucks making more than a single pickup or delivery on the site to the operation of the first sentence. Respondent sought to apply the operation of its single- delivery clause to contractors making a single visit to the jobsite with deliveries to several locations within the site. The Board has held the delivery by a contractor of ready- mixed concrete to a construction site to be merely a delivery of work performed offsite rather than onsite and not within the protection of the proviso to Section 8(e). International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local 294 (Island Dock Lumber, Inc.), 145 NLRB 484 (1963), enfd. 342 F.2d 18 (C.A. 2, 1965). Similarly the unloading of sand at several locations on a construction site was found to be merely a delivery of materials and not work at the site of construc- tion exempted by the proviso to Section 8(e). Local 294, IBT (Clemence D. Stanton, d/b/a Rexford Sand & Gravel Co.), 195 NLRB 378 (1972). I find, therefore, that Respondent and BCA did not succeed in writing a new provision which would cure the defects found by the Board in Fortunato and that para- graph 2 of section 9 of the current high rise agreement is unlawful on its face and not entitled to the protection of the proviso to Section 8(e) of the Act. While section 9 of the agreement purports to deal solely with onsite work, the effect of its limitation to trucks making a single delivery or pickup is to subject trucks making more than one delivery to the operation of the subcontracting provisions of the first sentence of paragraph 2 of this section. As the Board has found even multiple deliveries to be offsite work, the limitation has the further effect of falling out of the ambit of the onsite proviso and therefore violates Section 8(e) of the Act. Moreover, Respondent unlawfully applied and enforced section 9 of the collective-bargaining agreement. The evidence is uncontradicted that Respondent, through its agent at the Stony Brook site, attempted to permit Allco only one delivery of concrete blocks to the three phases on that site. Although Allco was able to make approximately 25 percent of its scheduled deliveries, it was replaced as soon as its contractor, Bafil, was able to find another supplier. Noteworthy is that Allco's replacement was an employer who employed members of Respondent. Also at the Nassau Community College site, Long Island Material Testing was restricted to picking up test cylinders and leaving empties at a single location near the main gate of the construction site. Finally, the Rent-A-John Company was permitted to service only one unit a day at the Nassau Community College site by Respondent's agents. The application by Respondent of section 9 of the agreement caused Bafil to cease doing business with Allco in violation of Section 8(e) of the Act. In that situation Allco was supplanted by a contractor having an agreement with Respondent who thereby succeeded in obtaining jobs for its members generally, an objective it clearly sought by the restrictions it imposed on the movements at the jobsite. As to Long Island Material, Respondent sought additional work opportunities at the jobsite by having its members deliver and pick up the cylinders at the three phases. It is not clear what Respondent sought in the Rent-A-John situation except literal enforcement of the contract as its witness disavowed claiming the work of cleaning the johns. By all such conduct, Respondent violated Section 8(e) of the Act. I find no merit to Respondent's argument, also urged unsuccessfully in Fortunato, that Respondent, by section 9, paragraph 2, of the agreement, was merely seeking to preserve for employees in the bargaining unit work which they have traditionally performed. National Woodwork Manufacturers Association v. N.LR.B., 386 U.S. 612 (1967). 772 LOCAL 282, INTERNATIONAL BROTHERHOOD OF TEAMSTERS There is no evidence in the record that employees in Respondent's bargaining units, under agreements with BCA, drive suppliers' trucks "entering or leaving" the jobsites involved herein for the purpose of making deliver- ies. In the specific instances, such work was performed by employees of Allco and Long Island Material Testing who are members of Local 424. While the record does not reveal that employees of Rent-A-John are or are not represented by a labor organization, Respondent, as noted, does not claim that its members have driven Rent-A-John's vehicles or have traditionally performed such work. Thus, the provisions of the agreement in question do not involve the safeguarding of work normally performed by Respondent's members but rather, as most clearly illustrated in the Allco situation, have the purpose of obtaining work performed by suppliers who do not employ Respondent's members. I find, therefore as in Fortunato, that section 9 of the collective-bargaining agreement herein was intended to benefit all Local 282 members within the geographic area of Respondent's jurisdiction, rather than to recapture or reacquire work which unit employees had actually per- formed in the past.3 Section 9, paragraph 2, further provides that its provi- sions as to onsite trucking be made a condition of any supply contract, and any contract or subcontract awarded by an employer covered by the agreement. This provision is also unlawful under Section 8(e) because it requires subcontractors to abide by the terms of Respondent's agreement, including those which are unlawful.4 In addition, such a contractual provision inhibits an employer bound by the agreement from contracting work to employers who may refuse to abide by the provisions of section 9 regarding the onsite trucking. In similar circum- stances the Board has stated: it cannot be found that the clause was addressed to the labor relations of the contracting employers vis-a- vis their own employees, but rather was tactically calculated to achieve union objectives elsewhere. Ac- cordingly, we find that the clause in the circumstances here is an unlawful "work acquisition" provision and therefore violates Section 8(e) of the Act.5 Since this is precisely the effect of making the onsite trucking a condition of any subcontract made by a party to the high rise agreement, I find such provision violative of Section 8(e) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of 3 See Plumbers and Steamfitters Local Union 342, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Conduit Fabricators, Inc.). 225 NLRB 1364(1976). 4 Los Angeles Building & Construction Trades Council; Laborers and Hod Carriers Local No. 802, A FL-CIO (Portofino Marina), (Jones and Jones, Inc.), 150 NLRB 1590(1965). 5 Retail Clerks Union Local 770, chartered by Retail Clerks International Association, A FL-CIO (Hughes Markets, Inc., and Saba Prescription Pharma- cy), 218 NLRB 680, 683 (1975). 6 In the event no exceptions are filed as provided by Sec. 102.46 of the Respondent described in section I, above, have a close, intimate, and substantial relationship 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. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(e) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. BCA is an association of employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By entering into, maintaining, enforcing, or giving effect to section 9, paragraph 2, of its current high rise agreement, 1975-78, with the Building Contractors Associ- ation, Inc., and its employer-members, to the extent said article has been found unlawful herein, Respondent has violated Section 8(e) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 6 The Respondent, Local 282, International Brotherhood of Teamsters, New York, New York, its officers, agents, and representatives, shall: I. Cease and desist from entering into, maintaining, enforcing, or giving effect to section 9, paragraph 2, of its current high rise agreement, 1975-78, with the Building Contractors Association, Inc., and its member-employers and with any other employers or employer associations who have become party to such High Rise Agreement, to the extent said article is found to be unlawful herein. 2. Take the following affinnative action designed to effectuate the policies of the Act: (a) Post at its business offices and meeting halls copies of the attached notice marked "Appendix." 7 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 Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.46 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. I In the event that 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 773 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 custom- arily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish said Regional Director with signed copies of the aforesaid notice for posting by Allco Concrete Products Co., Inc., United Brotherhood of Industrial Workers, Local 424, the Building Contractors Association, Inc., and its member-employers; or such of said employers as may be willing, at all places where notices to their respective employees or members are customarily posted. (c) 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 9, paragraph 2, of our current high rise agreement 1975-78 with the Building Contractors Association, Inc., and its member-employers, and with any other employers or employer associations who have become party to such agreement, insofar as said article has been interpreted by the National Labor Relations Board as being violative of Section 8(e) of the National Labor Relations Act, as amended. LOCAL 282, INTERNATIONAL BROTHERHOOD OF TEAMSTERS 774