Intl. Union Of Operating Engineers, Local 542

408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Locals 542, 542-A, 542-B and York County Bridge, Inc. Cases 4-CB-1900 and 4-CC-653 January 31, 1975 DECISION AND ORDER By ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 18, 1974, Administrative Law Judge Alvin Lieberman issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs, and Respondent filed an answering 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The complaint alleges, in pertinent part, that Respondents are in violation of Sections 8(b)(4)(ii)(A) and 8(b)(3) of the Act by demanding, and threatening a refusal to furnish workers in furtherance of the demand, that the Charging Party, York County Bridge, Inc. (hereinafter York), enter into a collective-bargaining agreement with Re- spondents containing provisions prohibited by Sec- tion 8(e) of the Act.' As litigated, the allegation of the 8(b)(3) violation encompassed Respondents' related demand, as discussed more fully below, that York bring its parent company, G. A. and F. C. Wagman, Incorporated (hereinafter Wagman), under whatever agreement might be entered into between Respondents and York, including the recognition of Respondents as collective-bargaining representatives of certain of Wagman's employees. The Administrative Law Judge concluded that no violation of Section 8(b)(4)(ii)(A) had occurred because, irrespective of whether the contractual provisions in controversy are prohibited by Section 8(e), Respondents did not attempt to force York to enter into any agreement containing these provisions. We find, on the contrary, that it was clearly Respondents' object to force York to agree to these provisions. Between 1967 and 1971, York was a member of the Contractors Association of Eastern The complaint is a consolidated complaint and includes allegations based on a charge filed by Contractors Association of Eastern Pennsylvania in Case 4-CB-1901 . That charge was withdrawn pursuant to a settlement agreement, and on March 8, 1974, the Board denied the General Counsel's appeal from the Administrative Law Judge 's action in granting the parties' 216 NLRB No. 67 Pennsylvania (CAEP), which bargained on behalf of its employer-members with Respondents. When the existing collective-bargaining agreement was about to expire in 1971, Respondents informed CAEP that it wanted to exclude York and several other companies from negotiations over the new multiem- ployer contract. Simultaneously, it informed York that it wished to meet with York independently to discuss a new contract. The employers consented to this arrangement. Multiemployer bargaining began in April 1971. Not having secured an agreement containing the contested provisions by the expiration date of the existing agreement, Respondents struck the employ- ers still in the multiemployer bargaining group. It also struck York and the other employers it had carved out of the group, on May 1. Bargaining with York had not even begun, presumably because Respondents were involved with the multiemployer bargaining and it was understood that York and the other "carved out" employers would be represented in the separate bargaining by Engineers Employers, the larger employers' association that was now representing the employer-members of CAEP who were still in the multiemployer bargaining group. On July 7, 1971, the multiemployer group agreed to the contested provisions and the strike ended. Thereafter, bargaining between Respondents and the "carved out" employers began. The employers, including York, offered to adopt the agreement produced by the strike. Respondents refused this offer as to York unless York would agree to take steps toward bringing Wagman, its parent company, under the agreement. Thus, as the Administrative Law Judge found, during these negotiations it was the employers, not Respondents, who were urging adoption of the provisions in controversy. But as it was manifestly clear that Respondents would accept nothing less than these provisions, over which they had struck, it is unrealistic to infer that Respondents had abandoned their efforts to secure agreement to these provisions. To do so is to ignore the circum- stances under which these parties came to the bargaining table and the pressures that were operat- ing on them. The employers had been struck, along with the multiemployer group, for over 2 months and were now willing to accept the contract agreed to by the group in order to get back to work without further delay. Respondents continued to insist on the substance of the provisions they struck over and would not resume referring workers from their hiring motion to withdraw the charge in Case 4-CB-1901. The Board remanded this proceeding to the Administrative Law Judge for his decision on the issues raised by the complaint based on the charges filed by York in Cases 4-CB-1900 and 4-CC-653. INTL. UNION OF OPERATING ENGINEERS , LOCAL 542 409 hall until a contract was signed. That they were unwilling to enter into a contract unless York agreed to accept certain additional terms , as discussed hereafter, does not, of course, take away from the fact that they continued to seek an agreement containing the provisions alleged to be prohibited by Section 8(e). We must, therefore, examine those provisions. The provisions complained of are as follows: Section 11-Non-Union Equipment: (a) No operator shall be required to operate equipment belonging to a contractor or supplier with whom this Local Union is not in signed relations, provided, Union equipment is available in the locality. No party to this agreement shall rent or supply equipment unmanned to anyone doing construction work covered by this agree- ment who is not in signed relations with this Union. (b) No employee represented by this Union on construction work shall be required to operate equipment of or for any Employer who has any interest in a firm or company doing construction work within the jurisdiction of this Union and which is not in signed relations with this Union. The gist of section 11, as its title suggests, is to give Respondents control over the employers or persons whose equipment may be used on construction work covered by the agreement, irrespective of whether the operator of the equipment is employed by a signatory or a stranger to the agreement. It constitutes an agreement to cease doing business with certain other persons, in situations not involving loss of work to employees represented by Respondents, and to that extent is prohibited by Section 8(e) unless saved by that section's construction industry proviso: That nothing in this subsection (e) shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction , alteration, painting, or repair of a building, structure, or other work... . As was observed, upon a review of the legislative history, in International Union of Operating Engineers, Local Union No. 12 (Acco Construction Equipment, s 204 NLRB 742 (1973), at ALJD, "Discussion and Conclusions- Section 8(e)." 3 "(b) Neither the Union nor any of its members shall be obligated to work on same job or project with, or service any contractor or sub- contractor not a party to an agreement with the Union. This shall not apply when the construction contracts are awarded directly by the Owner to the contractor or sub-contractor mentioned above." Inc.),2 the 8(e) proviso was intended to prevent labor strife among nonunion and union employees at the same jobsite. In fact, the collective-bargaining agreement in which the contested provisions appear, in the instant case, contains a separate provision addressed to the problem of union and nonunion employees.3 The provisions of section 11, set forth above, have a different and broader effect. Neither the first sentence of section 11(a) nor section 11(b) is limited to situations where the boycotted supplier of the equipment has any employees at the jobsite. Were these provisions so limited they would be redundant in light of the provision quoted in the previous footnote herein. As these provisions reach beyond the performance of work at the jobsite they also reach beyond the construction industry proviso and are unlawful under Section 8(e).4 Section 11(b) of the agreement, as seen, excuses employees represented by Respondent from operat- ing equipment of any employer who has any interest in a firm doing construction work within Respond- ents' jurisdiction without a contract with Respond- ents. In addition to its prohibition by Section 8(e), this provision enters into the issue of whether Respondents have violated Section 8(b)(3) of the Act. The contract provision is aimed, at least in part, at what Respondents call the "dual company" problem. A "dual company" is a construction firm having two operating parts, only one having an agreement with union 1. The other part might or might not have an agreement with another union, but in any case does work within the territorial jurisdiction of union 1 on jobs where there is no subcontracting clause requir- ing an agreement with union 1. Where there is such a subcontracting clause, or otherwise as the firm sees fit, the operating division having an agreement with union 1 will bid on the job. Such is the case with York. Wagman, which has an agreement with another union, formed York as a subsidiary which could bid on and perform jobs requiring agreement with Respondents and their affiliates. Since Wagman also does construction within Respondents' territorial jurisdiction, without being "in signed relations" with Respondents, York literally could not operate equipment with employees represented by Respondents if section 11(b) had been effectuated. York was willing to sign section 11(b) anyway, hoping that despite that provision it could "continue on as before," as York's representa- 4 International Brotherhood of Electrical Workers, Local 1186, AFL-CIO (Pacific Electrical Contractors' Association), 192 NLRB 254 (1971). The General Counsel contends that these provisions , when read with other provisions of the agreement, also violate Sec. 8 (e) because they contemplate "self-help" in their enforcement. Respondents argue, inter alto, that this contention has been rendered moot by subsequent events . We need not pass on these issues. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive was quoted by Respondents' president. Re- spondents, which had carved York out of the multiemployer group precisely because it was a "dual company," would not accept this, although it would continue relations with York temporarily in ex- change for a gradual phasing out of Wagman's "nonunion" operation.5 Respondents thus did not, as they contend, disclaim an interest in continuing to represent the employees of York. Rather, they pursued an attempt to enlarge the bargaining unit by replacing with themselves the existing bargaining representative of the employees of Wagman.6 This was not a mandato- ry subject of bargaining. Failing to disclaim repre- sentation of the employees, Respondents had a duty to bargain and therefore to refrain from holding the negotiations hostage to a demand for a nonmandato- ry subject. Respondents violated that duty. They went further and held the negotiations hostage to provisions banned by Section 8(e) of the Act, over which it had struck before York accepted them. They thus violated Section 8(b)(3) of the Act. By ceasing their established practice of furnishing workers to York, or threatening to do so, in support of their demand for provisions violative of Section 8(e), they coerced York within the meaning of Section 8(b)(4)(ii)(A).7 Accordingly, we find that additional violation. CONCLUSIONS OF LAW 1. York County Bridge, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondents are labor organizations within the meaning of Section 2(5) of the Act and at all times material herein have been the exclusive representative of certain employees of York County Bridge, Inc., for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 3. By refusing to bargain collectively with York County Bridge, Inc., Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(bX3) of the Act. 4. By threatening, coercing, or restraining York County Bridge, Inc., with an object of forcing or requiring it to enter into an agreement which is prohibited by Section 8(e) of the Act, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(4)(iiXA) of the Act. S In Respondents' view, an operation under agreement with a different union was "nonunion." s Cf. International Brotherhood of Electrical Workers, AFL-CIO (Texlite, Inc.). 119 NLRB 1792 (1958). r Columbus Building and Construction Trades Council AFL-CIO (771e Kroger Co.), 149 NLRB 1224 (1964). 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondents, International Union of Operating Engineers, Locals 542, 542-A, 542-B, their officers, agents, and representatives, shall: 1. Cease and desist from: (a) Insisting, as a condition of executing a collective-bargaining agreement with York County Bridge, Inc., covering employees of that employer, or as a condition of continuing to furnish York County Bridge, Inc., with workers, that York County Bridge, Inc., enter into an agreement prohibited by Section 8(e) of the Act, or that such agreement cover employees in a unit currently represented by another labor organization. (b) Refusing to refer, or threatening to refuse to refer, to York County Bridge, Inc., at its request individuals for employment in order to force or require York County Bridge, Inc., to enter into an agreement prohibited by Section 8(e) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with York County Bridge, Inc., subject to the provisions of Section 9(a) of the Act, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at Respondents' business offices and meeting halls, copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by Respondents' representatives, shall be posted by Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees and members are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. ` (c) Sign and mail to the Regional Director for Region 4, sufficient copies of said notice, on forms 9 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." INTL. UNION OF OPERATING ENGINEERS , LOCAL 542 provided by him, for posting at the premises of Charging Party York County Bridge, Inc., if the latter is willing. (d) Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. ACTING CHAIRMAN FANNING, dissenting: Contrary to my colleagues, I would find, in agreement with the Administrative Law Judge, that the Respondent Union's object in refusing to refer employees for employment by York was to compel that Company and Wagman, dual companies, to bargain for all their employees in a single unit. In my opinion, the evidence does not support the majority's conclusion that an additional and unlawful object of the Union was to require York to sign a contract containing the provisions alleged by the General Counsel to be prohibited by Section 8(e) of the Act. While the Union did, indeed, insist that the disputed provisions must be included in the standard contract negotiated with the multiemployer group in July 1971, York was specifically excluded from all negotiations and efforts to secure that contract. With respect to York, the record is clear that the Union refused to bargain with that Company for, any contract unless and until York gave assurances that it would end its dual-company arrangement with Wagman and bargain with the Union as a single employer. The record is also clear that the alleged 8(e) provisions were designed to preclude the employers under contract with the Union from doing business with York and Wagman so long as Wagman was nonunion. If, however, York acceded to the Union's adamant position that York and Wagman must both be all-union companies before any contract could be negotiated, obviously the Union's need for the alleged 8(e) clauses would immediately evaporate. Whether or not the Union would never- theless insist that these clauses must be included in a contract executed with York-Wagman is, in my opinion, entirely speculative. I do not believ;r it is a reasonable ground to conclude, as the majority does, that the Union necessarily was at all tithes insisting that York execute a contract containing unlawful 8(e) clauses. I would affirm the Administrative Law Judge's conclusion that the General Counsel has not prod- uced sufficient evidence in this case to warrant a finding that the Union has violated Sections 8(bX3) and 8(b)(4)(ii)(A) of the Act. I The complaint was issued pursuant to charges filed on November 1, 1971, by York County Bridge, Inc. (4-CB-1900 and 4-CC-653). and Contractors Association of Eastern Pennsylvania (4-CB-1901). As will be APPENDIX 411 NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and to keep the promises that we make in this notice: WE WILL NOT insist, as a condition of executing a collective-bargaining agreement with York County Bridge, Inc., or as a condition of continuing to furnish York County Bridge, Inc., with workers, that York County Bridge, Inc., enter into an agreement prohibited by Section 8(e) of the Act, or that such agreement cover employees in a unit currently represented by another labor organization. . WE WILL NOT refuse to refer, or threaten to refuse to refer, to York County Bridge, Inc., at its request individuals for employment in order to force or require York County Bridge, Inc., to enter into an agreement prohibited by Section 8(e) of the Act. WE WILL bargain, upon request, with York County Bridge Inc., over rates of pay, wages, hours of employment, and other terms or condi- tions of employment and, if an understanding is reached, embody such understanding in a signed agreement. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCALS 542, 542-A, AND 542-B DECISION STATEMENT OF THE CASE ALVIN LIEBERMAN, Administrative Law Judge: The trial in this proceeding was held before me in Philadelphia, Pennsylvania, on May 22 and 23, 1972, upon the General Counsel's complaint 1 and Respondent's answer. The issues litigated were whether Respondents violated Sections 8(b)(3) and 8(bX4Xii)(A) of the National Labor Relations Act, as amended (Act), by striking members of employer associations, including Contractors Association of Eastern Pennsylvania (CAEP), for which Operating Engineers Employers of Eastern Pennsylvania and Delaware (Engi- neers Employers) was the bargaining agent and by threatening to refuse to furnish employees to York County set forth below, the charges filed by both Charging Parties were privately settled during the trial. However, the settlement entered into by Respond- ents and York County Bridge, Inc., was, in effect, set aside. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bridge, Inc. (York), in order to force Engineers Employers and York to enter into an agreement prohibited by Section 8(e).2 Upon the entire record, my observation of the witnesses and their demeanor while testifying, and having taken into account the arguments made and the briefs submitted,3 I make the following: FINDINGS OF FACT 1. JURISDICTION York, a Pennsylvania corporation whose principal office is located at York, Pennsylvania, is engaged in pile driving and in the construction of bridges and dams. York annually purchases goods and services from suppliers located outside the Commonwealth of Pennsylvania valued at more than $50,000. Accordingly, I find that York is a construction industry employer within the meaning of Section 8(e) of the Act and is engaged in commerce within the meaning of Section 2(6) and 8(bX4). I conclude, thetefore, that the assertion of jurisdiction over this matter by the National Labor Relations Board (Board) is warranted. II. THE LABOR ORGANIZATIONS INVOLVED Respondents, three locals of International Union of Operating Engineers , AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act .4 III. INTRODUCTION As will appear, this case is concerned with Respondents' dealings with York, including an alleged threat by Respondent to refuse to furnish employees to York. The General Counsel and York contends that an object of this threat was to compel York to enter into a contract prohibited by Section 8(e) of the Act. Accordingly, the General Counsel argues, Respondent violated Section 8(b)(3) and (4XiiXA). Respondent, on the other hand, maintains that it did not trench on either of the foregoing s In pertinent part the provisions of the Act mentioned in the text are as follows: Sec 8(b) It shall be an unfair labor practice for a labor organization or its agents- (3) to refuse to bargain collectively with an employer, provided it is the representative of his employees.... (4) ... (u) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where .. an object thereof is: (A) forcing or requiring any employer... to enter into any agreement which is prohibited by section 8(e). prohibited by section 8(e); (e) It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, 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 to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to sections of the Act because the object of the threat it is alleged to have made did not fall within the proscription of Section 8(b)(4)(A). IV. THE HISTORY OF THIS PROCEEDING AND ITS PRESENT POSTURE As noted, on May 22 and 23, 1972, a trial was held before me on the issues raised by the pleadings in this matter. On the second day of the trial, after all parties had rested but before the record was closed, both Charging Parties; i.e., York and CAEP, entered into a private settlement agreement .6 Pursuant to their agreement with Respondent, York and CAEP then moved to withdraw their charges and I granted these motions. Having done so, I dismissed the complaint in accordance with Section 102.9 of the Board's Rules and Regulations, series 8, as amended.? On June 1, 1972, the General Counsel appealed to the Board from my order dismissing the complaint. During the pendency of the General Counsel's appeal, York, on October 10, 1972, filed several motions with the Board, including a motion to vacate my dismissal of the complaint and a motion to reinstate the complaint. On March 19, 1973, the Board referred York's motions to me for ruling. On August 7, 1973, after a hearing at which evidence was adduced, I denied York's various motions. Requests for review of this ruling were filed with the Board by the General Counsel and York. On March 8, 1974, the Board decided the General Counsel's appeal from my order dismissing the complaint. As set forth in its order, the Board "concluded that the agreement of the parties underlying [my ] acceptance of the Charging Parties' withdrawal of the charges and [my] consequent dismissal of the complaint has not settled the dispute." Accordingly, the Board remanded this proceeding to me "for the purpose of preparing a written decision contain- ing, findings of fact, conclusions of law, and a recommend- ed order resolving the issues raised by the complaint in Cases 4-CB-1900 and 4-CC-653 [in which York . . . is the such extent unenforceable and void : Provide4 That nothing in this subsection (a) shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work .... 3 Although all the arguments of the parties and the authorities cited by them, whether appearing in their briefs or made orally at the trial, may not be discussed in this Decision, each has been carefully weighed and considered. 4 Although they are separate labor organizations, Respondents are closely related to each other. Accordingly, they will be referred to hereinafter collectively as Respondent. 5 The contentions of the General Counsel and York being similar, they will be referred to hereinafter as the General Counsel's contentions. 6 The settlement agreement provided , among other things, that "York will solve the dual company problem by May I, 1975, to [Respon- dent's ] satisfaction." As will be seen, this problem is the root of the dispute between Respondent and York . The nature of a dual company, the problems such a company raises for Respondent, and the manner in which Respondent sought to eliminate these problems, both in general and insofar as York was concerned, will be discussed in later sections of this Decision. r Insofar as material Sec. 102.9 provides that "upon withdrawal of any charge, any complaint based thereon shall be dismissed." INTL. UNION OF OPERATING ENGINEERS , LOCAL 542 413 Charging Party ]." In connection with the scope of the remand, the Board further concluded that "as the parties in Case 4-CB-1901 [in which CAEP is the Charging Party], are willing to abide by their [settlement ] agreement [entered into on May 23, 1972], . . . disturbing such agreement would not effectuate the policies of the Act." In view of the Board's latter conclusion, the evidence adduced at the trial need be considered only insofar as it relates to the dealings between Respondent and York; and findings of fact, conclusions, and recommendations are necessary only in that regard. Notwithstanding this posture of the proceeding, factual findings will be made, by way of background, concerning the bargaining engaged in by Respondent and Engineers Employers, the subject of the charge in Case 4-CB-1901. V. PRELIMINARY FINDINGS AND CONCLUSIONS8 A. The Dual Company Problem As was made apparent during the trial, a dual company in the segment of the construction industry in which Respondent and York do business9 consists of an enterprise having two parts, only one of which employs workers represented by Respondent . It is the position of Respondent that dual companies diminish its members' employment opportunities. Homer Dawson, Respondent's president, testified that this comes about because such companies "[use] our people when' it is to their advantage and [lay ] them off when it is not to their advantage [to employ them]," thus creating "an intolerable situation for [Respondent ]." Moreover, Dawson continued, respondent feels that it has a responsibility not only "to preserve [its members' ] work opportunities [but also to protect] employers who . . . do all their work 100% union . . . from unfair competition" posed by dual companies which, because of their nonunion adjunct, are able to underbid nondual companies. In the hope of eliminating the problems resulting from the existence of dual companies and thereby enhance and preserve employment opportunities for persons whom it represents, Respondent, during its bargaining with Engi- neers Employers, proposed and obtained the contract provisions alleged in the complaint as being prohibited by Section 8(e) of the Act.10 8 The purpose of these findings is to furnish a frame of reference within which to consider the facts relating to Respondent's alleged unfair labor practices and the conclusions to which they may give rise. To the extent that the contentions of the parties relate specifically to the findings made here they will be treated here, although they, as well as the findings, may again be considered in other contexts. 6 As I have found, York is engaged in pile driving and in the construction of bridges and dams. Employees represented by Respondent operate equipment and machines used in such work. 10 The contract provisions complained of are as follows: ARTICLE II General Provisions Section I I-Non-Union Equipment York is one part of a dual company, the other part is G.A. and F.C. Wagman, Incorporated (Wagman). Wag- man's employees have never been represented by Respond- ent, but, at all material times, they have been represented by a labor organization not associated with the American Federation of Labor and Congress of Industrial Organiza- tions (AFL-CIO) as is Respondent. Dawson, Respondent's president, described .the Union representing Wagman's employees as being, with respect to Respondent, a "rival union."" Accordingly, notwithstanding such representa- tion, in Respondent's eyes Wagman is a nonunion employer. York was formed by Wagman in 1960 as its wholly owned subsidiary. Before York's incorporation, Wagman was barred from working as a subcontractor on a construction project because the general contractor had an agreement with a union affiliated with the AFL-CIO precluding it from subletting work to a subcontractor whose employees were not represented by a union similarly affiliated. To avoid the recurrence of such a situation Wagman created York so that Wagman "would have a company that was able to work as a sub-contractor to contractors who were AF of L and were bounds [sic] by their contracts just-to sub-contract to people who were also a party to [such an ] agreement." 12 York and Wagman do the same type of construction work. Being Wagman's wholly owned subsidiary, all major decisions affecting York are made by Wagman. One of Wagman's vice presidents is also York's vice president. Both corporations are housed in the same building, employ office and professional workers in common, and the same equipment is used interchangeably by both.13 I make no judgment as to whether York and Wagman constitute a single employer. However, in view of the foregoing, and considering the purpose for which York was created by Wagman, York and Wagman may be consid- ered to be separate parts of the same enterprise. Although York did not immediately upon its incorpora- tion enter into an agreement with Respondent, it apparent- ly satisfied the purpose for which it was formed by obtaining its employees from respondent's hiring hall. In 1967 York joined CAEP which bargained with Respondent on behalf of its members, including York, until 1971. (a) No operator shall be required to operate equipment belonging to a contractor or supplier with whom this Local Union is not in signed relations, provided, Union equipment is available in the locality. No party to this agreement shall rent or supply equipment unmanned to anyone doing construction work covered by this agreement who is not in signed relations with this Union. (b) No employee represented by this Union on construction work shall be required to operate equipment of or for any Employer who has any interest in a firm or company doing construction work within the jurisdiction of this Union and which is not in signed relations with this Union. 11 A "rival union," Dawson explained, is one "which does work in the same jurisdiction which [Respondent ) covers I.- 12 The findings concerning York's formation are based upon, and the quotation appearing in the text is taken from , testimony given by John Rutter, a vice president of both Wagman and York. 13 Rutter testified, without stating the amount of the rent , that when one used the other's machinery rent was paid. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Carved-Out Employers The last collective-bargaining agreement between Re- spondent and CAEP covering the latter's members, including York, expired on April 30, 1971.14 On February 17 Respondent informed CAEP, in writing, that it wanted to meet with CAEP for the purpose of negotiating an agreement to replace the one about to terminate. At the same time Respondent notified CAEP that it wanted "to withdraw from negotiating with [CAEP] with respect to ... York" and several other dual companies.15 In response to its request for bargaining Respondent was advised by CAEP that it would be represented in the negotiations by Engineers Employers, a broader based employer association. In doing so, however, CAEP made no mention of Respondent's request to carve York and other dual companies out of the bargaining unit . Accord- ingly, Respondent made a similar request of Engineers Employers which was acceded to on April 12. C. The Bargaining Between Respondent and Engineers Employers Bargaining between Respondent and Engineers Employ- ers began early in April 1971. At the outset Respondent presented for. consideration by Engineers Employers a document containing the items it wanted to incorporate in the contract then under negotiation. Among these was the provision alleged in the complaint to have been prohibited by Section 8(e) of the Act. 16 Not having obtained agreement to this provision, as well as several others, by April 30, the expiration date of the old contract, Respondent, on the next day, struck the employ- ers for whom Engineers Employers was the bargaining agent. The expired contract having also covered York and the other carved-out employers, they, too, were struck on May 1. Bargaining between Engineers Employers and Respond- ent continued through the strike . On July 7 agreement was reached on all outstanding matters, including the provision claimed to have been prohibited by Section 8(e) of the Act. Concerning this, as Harold Williams, one of the negotia- tors for Engineers Employers, testified, Respondent's position was that unless it was agreed to "the strike would continue." Faced with this alternative, Engineers Employ- ers accepted the provision and the strike ended , except with respect to York and the other carved-out employers between whom and Respondent there was still no collective-bargaining agreement. The contract entered into by Engineers Employers and Respondent upon the completion of their negotiations was to be effective, according to its terms, from May 1, 1971, to April 30, 1973, absent an extension. 14 All dates hereinafter mentioned without stating a year fall within 1971. 15 G.C. Exh. 4. 16 See In. 10, above , for the terms of this provision. 17 It was later made clear that Williams used the term "double-breasted operation" as a synonym for "dual company operation." is My findings as to the events of this meeting are based on the testimony given by Minckler and Homer Dawson, Respondent's president, who was also present at the meeting . The quotations appearing in the text VI. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts Concerning Respondent's Alleged Violation of Section 8(b)(3) and 8(b)(4)(ii)(A) of the Act During the bargaining between Respondent and Engi- neers Employers Respondent was informed that Engineers Employers would represent the carved-out employers, including York, in any subsequent negotiations between the carved-out employers and Respondent. After Respond- ent and Engineers Employers agreed upon a contract (standard contract) covering the employers who had not been removed from the unit Respondent and Engineers Employers, as the representative of the carved-out employ- ers, met twice. The first meeting, at which all the carved-out employers were represented, took place on July 14, 1971. At the second meeting, held on September 28, only York was represented. At neither meeting did Respondent seek a contract with York or any other carved-out employer. At each meeting the requests for contracts came from the employers. Thus, as Harold Williams, a member of Engineers Employers' negotiating committee testified, on July 14, "we suggested that we would like everyone to sign the [standard] contract." Respondent's "response," as Williams further testified, "was that [it] would not sign up the singled out contracting companies , including York . . . , unless they eliminated the double-breasted operation that they are working under now, or were working under , in a stipulated period of time." 17 The September 28 meeting, as has already been noted, was devoted entirely to York. York's spokesman was Howard Minckler, who, like Williams, was a member of Engineers Employers' negotiating committee.18 Minckler informed Respondent of York's "position of not being able [,without a contract with Respondent,] to bid on any work," and that York "wanted to be able to bid on union construction work." Accordingly, York again offered to sign the standard agreement. This offer, as was the similar offer made on July 14 on behalf of York and the other carved-out employers, was rejected by Respondent . Homer Dawson, Respondent's president, stated in this regard that York "would not be given an agreement unless [it] brought all [its ] companies to under the agreement [and that York] would not be furnished any employees unless [it] signed an agree- ment." 20 After some further discussion Respondent changed its position and offered to consider any proposition respecting a contract which York might make, provided it was accompanied by an undertaking from the York-Wagman enterprise to eliminate its dual company operation within a stated period of time . In the absence of an estimate from York as to how long it would take to accomplish this, are taken from Minckler's testimony. 19 This was a reference to Wagman, which , as will be remembered, was the other part of the York-Wagman dual company. 20 Concerning the operation of Respondent's hiring hall, Dawson testified that it was not Respondent's "policy [to] furnish engineers to anyone without a signed contract ," nor does Respondent "refer employees to companies with whom it is not in collective bargaining relations." INTL. UNION OF OPERATING ENGINEERS, LOCAL 542 415 Respondent suggested that a year would be acceptable. To this Dawson added that "if York had a different proposal, [Respondent ] would be willing to listen." York answered that it would "think about [the foregoing] and come back with a counter-proposal." York, however, did not "come back with a counter- proposal." Instead, on October 7 York once more offered to sign the standard agreement without any change in the York-Wagman dual company operation. This offer Re- spondent again refused to accept. B. Contentions and Concluding Findings Concerning Respondent's Alleged Violations of Section 8(b)(3) and (4)(ii)(A) of the Act To establish a violation of Section 8(b)(4) of the Act it must be shown that an object of a union's conduct falls within the proscription of one of its subsections.21 N.L.R.B. v. Denver Building and Construction Trades Council, et at, 341 U.S. 675, 687-689 (1951). In the absence of such an object there is no violation of Section 8(bX4). Seafarers International Union of North America, Atlantic and Gulf District, Harbor and Inland Waterways Division (Salt Dome Production Co.) v. N.L.RB., 265 F.2d 585, 590 (C.A.D.C. 1959); Truck Drivers & Helpers Local Union No. 592, IBT (Estes Express Lines, Inc.), 181 NLRB 790, 791-792 (1970). The General Counsel argues that an object of Respond- ent's statement that it would not furnish employees to York22 was to force York to enter into an agreement (the standard agreement) containing provisions prohibited by Section 8(e) of the Act . In this manner, he further argues, Respondent violated Section 8(bx4Xii)(A). On brief the General Counsel states that "of first consideration is whether [the standard agreement] vio- late[s] Section 8(e) of the Act." I do not agree. A finding that the standard agreement was prohibited by Section 8(e) would be of no consequence insofar as Respondent's alleged violation of Section 8(b)(4)(iiXA) is concerned unless, as the cases cited above teach , there is also a finding that an object of Respondent's threat was to compel York to enter into it.23 Accordingly, I will address myself first to Respondent's object. A review of the evidence shows that the elimination of dual companies ' was of prime importance to Respondent. Respondent hoped to accomplish this in some measure by incorporating into the collective-bargaining agreement it entered into with Engineers Employers the provision alleged in the complaint to have been prohibited by Section 8(e) of the Act. Insofar as Respondent's direct dealings with dual companies, including York, were concerned the evidence also demonstrates Respondent's purpose to compel them to eliminate their nonunion operations. This is made apparent not only by Respondent's not seeking, or initiating requests for, contracts with the dual companies,24 but also by the reasons given by Respondent for not acceding to the dual companies' requests for contracts. Thus, at the July 14 meeting Respondent made it clear that it "would not sign up the singled out . . . companies, including York . . ., unless they eliminated [their] double- breasted operation." Similarly, at the September 28 meeting when York offered to sign the standard agreement in order to enable it "to bid on union construction work," Respondent made it equally clear that it would not enter into any agreement with York unless York was willing to bring Wagman, its nonunion adjunct, "under the agree- ment"; i.e., whatever agreement Respondent and York might enter into upon York's satisfying Respondent's condition. The foregoing does not bespeak an object on Respond- ent's part to compel York to enter into a prohibited agreement by "threaten[ing]," to use the language of the complaint, "to refuse to furnish workers to York." It indicates, rather, that it was the object of Respondent's threat to compel the York-Wagman enterprise to eliminate their dual company operation, and I so find. For Respondent to have sought to compel York-Wag- man, an enterprise employing workers represented by Respondent and workers not so represented to employ only workers represented by Respondent is not an object interdicted by Section 8(b)(4)(A) of the Act, which, in relevant part, proscribes only "forcing or requiring any employer . . . to enter into any agreement which is prohibited by Section 8(e)." Nor did Respondent violate Section 8(b)(3), with which it was also charged, by refusing to enter into a collective-bargaining contract with York unless York-Wagman agreed to employ only workers represented by Respondent. Sheet Metal Workers Interna- tional Union (Corrugated Asbestos Contractors, Inc.), 192 NLRB 32, 33-34, affd. sub nom. Corrugated Asbestos Contractors 458 F.2d 683 (C.A.5, 1972). Accordingly, I conclude that Respondent violated neither Section 8(b)(3) nor (4)(ii)(A) of the Act. I shall, therefore, recommend the dismissal of the complaint in Cases 4-CB-1900 and 4-CC-653, in which York is the Charging Party. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. York is an employer in the construction industry within the meaning of Section 8(e) of the Act and is engaged in commerce within the meaning of Section 2(6) and 8(b)(4) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent did not engage in unfair labor practices within the meaning of Section 8(b)(3) or (4)(ii)(A) of the Act. 21 The subsection of Sec. 8(bX4) involved in this proceeding is subsection (A). 22 This statement is characterized in the complaint as being a threat "to refuse to furnish workers to York." For convenience I will adopt this characterization. 73 1 use the past tense because all the events with which we are here concerned occurred in 1971 and the standard agreement was to expire, absent an extension, on April 30, 1973. 24 It will be remembered, in this regard , that at the meeting held on July 14, 1971, the requests for contracts between Respondent and the dual companies were made by the dual companies, not by Respondent; and at the September 28 meeting, at which only York was represented, York, and again not Respondent, made the demand for a contract. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact and conclusions of law and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER25 It is ordered that the complaint in Cases 4 -CB-1900 and 4-CC-653 be, and the same hereby is, dismissed. ss In the event no exceptions are filed as provided by Sec. 102.46 of the 102.48 of the Rules and Regulations, be adopted by the Board and become Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions, and order, and all objections thereto shall be conclusions, and recommended Order herein shall, as provided in Sec. deemed waived for all purposes.