International Union of Operating Engineers, Loc. 701

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOC. 701 International Union of Operating Engineers, Local No. 701, AFL-CIO and Oregon-Columbia Chap- ter, The Associated General Contractors of Ameri- ca, Inc. Case 36-CE-9 January 17, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS KENNEDY AND PENELLO Upon a charge filed on July 18, 1974, by Oregon- Columbia Chapter, the Associated General Contrac- tors of America, Inc., herein called AGC, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 19, issued a complaint on August 30, 1974, alleging that International Union of Operating Engineers, Local No. 701, AFL-CIO, herein called Respondent, has entered into, given effect to, and has attempted to enforce an agreement in violation of Section 8(e) of the Act. Copies of the charge, complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. On September 5, 1974, Respondent filed its answer admitting various allegations of the complaint but denying that the agreement violated Section 8(e) of the Act. On September 25, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. On October 15, 1974, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause. 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. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Respondent, which entered into a collective-bar- gaining agreement with AGC on or about July 1, 1973, is giving effect to the following provisions therein and since February 14, 1974, has attempted to enforce them: ARTICLE XIX WARRANTY 233 Section 1. Employees covered by this Agreement shall be used on all maintenance, servicing and repair work except that machinery covered by a manufacturer's written guarantee is not subject to this Agreement under the following conditions: (a) No warranty shall run for a period of more than 1000 meter or working hours. (b) The term "equipment" or "machinery" means a complete unit such as a shovel, crane, tractor, scraper, compressor, etc., and does not include component assemblies such as motors, transmissions, etc., which are installed in equip- ment. The intent of this paragraph is to stop the practice of chain warranties. (c) Equipment which is rented, leased, or is on a rental purchase contract, in which ownership resides in the dealer, shall be considered to belong to the contractor for the purpose of this Article. (d) On used equipment, a dealer's warranty shall not exceed 300 hours. (e) Warranty mechanics shall supervise such work at or near the jobsite and use the tools of the trade, assisted on all work by employees covered by the terms and conditions of this Agreement. Warranty Mechanics shall not work at a ratio greater than two Warranty Mechanics for each Contractor Mechanic. Section 2. It is expressly understood and agreed to by all parties hereto, that when the contractor's equipment is repaired (work other than warranty work) at or near a jobsite by a manufacturer, equipment dealer or individual, the contractor shall be required to see that the terms and conditions of this Agreement are complied with. The Employers shall not use any method or means to circumvent the intent of this Article. Section 3. If the Employer violates the above it will not be a violation of this Agreement for the Union to refuse to operate such equipment until an arrangement has been reached with the Union. In its answer to the complaint and in its response to the Notice To Show Cause, Respondent raises three contentions. Respondent argues that article XIX is within the proviso to Section 8(e) of the Act as there is nothing in the contract language which dictates its application to offsite work. Secondly, Respondent asserts that article XIX is addressed to the labor relations of the contracting employer and his employees and thus is primary and beyond the 216 NLRB No. 45 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proscription of Section 8(e) of the Act. Finally, Respondent contends that the Board should defer to arbitration under the Collyer doctrine.' In this regard the Respondent states that it filed a grievance charging an AGC contractor with violation of article XIX. The matter proceeded to arbitration and the arbitrator declined to pass on the legality of article XIX because of the pending 8(e) charge. With regard to the Respondent's first contention, the Board in International Union of Operating Engineers, Local Union No. 12 (Acco Construction Equipment, Inc., Hawthorne Machinery Co.), 204 NLRB 742 (1973), held that a similar warranty clause violated Section 8(e) of the Act because the work involved was not "work to be done at the site of the construction." Since the clause herein purports to cover repair work "near a job site," this clause like the one in Hawthorne, supra, involves in part offsite work. As to Respondent's second contention, since article XIX contains a union-signatory clause which prohib- its employers from contracting out work to employ- ers who do not have a contract with Respondent, it is clearly concerned primarily with the regulation of the labor policies of other employers and not the preservation of unit work. Accordingly, article XIX has an unlawful secondary thrust proscribed by Section 8(e) of the Act.2 Respondent's affirmative defense that the Board must defer to grievance and arbitration procedures must also fail. Deferral is not appropriate in a dispute where the contract provisions governing the dispute are as here unlawful on their face or by their express terms call for a result inconsistent with Board policy under the Act.3 We conclude from the pleadings that Respondent raises no issues of fact or law requiring a hearing in this proceeding. For the reasons set forth above, we decline to defer to the grievance and arbitration provisions of the collective-bargaining agreement and find that article XIX and Respondent's efforts to enforce its provisions are violative of Section 8(e) of the Act. Accordingly, we hereby grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. JURISDICTION AGC is an association of employers engaged in all types of construction work throughout the entire State of Oregon and five counties in the southwestern I Collyer Insulated Wire, A Guy and Western Systems Co, 192 NLRB 837 (1971). 2 Hawthorne Machinery, supra. portions of the State of Washington. During the past year, the employer-members of AGC, in the course and conduct of their business, annually purchased goods, materials, and supplies valued in excess of $50,000, which were shipped to said employer- members directly from States of the United States other than the States of Oregon and Washington. We find on the basis of the foregoing that AGC is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Respondent, International Union of Operating Engineers, Local Union No. 701, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES For the reasons given by the General Counsel, we find that article XIX and Respondent's efforts to enforce its provisions are violative of Section 8(e) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent occurring in connec- tion with the operations of AGC 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. CONCLUSIONS OF LAW 1. International Union of Operating Engineers, Local No. 701, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. The employer-members of the Associated General Contractors of America, Inc., including the Charging Party, are employers within the meaning of Section 2(2) of the Act, and are engaged in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. By entering into, maintaining, giving effect to, or attempting to enforce the provisions of article XIX of the collective-bargaining agreement with Associat- ed General Contractors of America, Inc., Respond- ent is engaging in and has engaged in unfair labor 3 However, we do not rely on Sheet Metal Workers' International Association, Local Union No. 17, AFL-CIO (George Koch Sons, Inc), 199 NLRB 166 (1972), which is cited by the General Counsel. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOC. 701 235 practices within the meaning of 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. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices, we shall order that it cease and desist therefrom. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, International Union of Operating Engineers, Local No. 701, AFL-CIO, its officers, agents, and repre- sentatives, shall: 1. Cease and desist from entering into, maintain- ing, enforcing, or giving effect to article XIX of its current June 1, 1973-May 31, 1976, collective-bar- gaining agreement with Oregon-Columbia Chapter, the Associated General Contractors of America, Inc., whereby it and its employer-members agree to cease and refrain from handling, using, selling, transport- ing, or otherwise dealing in the products of other employers and agree to cease doing business with any other person within the meaning of Section 8(e) of the Act. 2. Take the following affirmative action: (a) Post at Respondent Union's business offices and meeting halls, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members and employees 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. (b) Sign and mail to the Regional Director for Region 19, sufficient copies of the notice, on forms provided by him, for posting at the premises of the Charging Party, if willing. (c) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. ACTING CHAIRMAN FANNING, concurring in part and dissenting in part: I concur in my colleagues' refusal to defer to arbitration in this case.5 However, for reasons set forth in my dissent in Hawthorne Machinery, supra, I would find that the provisions of article XIX of the contract between the Respondent Union and the Association are perfectly legal as they are protected by the proviso to Section 8(e). I would therefore deny the Motion for Summary Judgment and dismiss the complaint. 4 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." S See my dissenting opinions in Collyer, supra, and subsequent cases. 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 article XIX of the June 1, 1973-May 31, 1976, collective-bargaining agreement with the Oregon-Columbia Chapter, the Associated Gen- eral Contractors of America, Inc., whereby it and its employer-members agree to cease and refrain from handling, using, selling, transporting, or otherwise dealing in the products of other employers and agree to cease doing business with any other person within the meaning of Section 8(e) of the Act. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL No. 701, AFL-CIO