Joint Council of Teamsters No. 42

JOINT COUNCIL OF TEAMSTERS NO. 42 Joint Council of Teamsters No. 42, and General Teamsters, Chauffeurs, Warehousemen & Helpers, Local 982, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca and Inland Concrete Enterprises, Inc. Case 31- CE-60 June 25, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS PENELLO AND WALTHER On February 24, 1976, Administrative Law Judge Irving Rogosin issued the attached Decision in this proceeding. Thereafter, Respondents filed exceptions and a supporting brief, and the Charging Party filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondents, Joint Council of Team- sters No. 42, Los Angeles, California, and General Teamsters, Chauffeurs, Warehousemen & Helpers, Local 982, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Lancaster, California, their respective officers, agents, and representatives, shall take the action set forth in the said recommended Order. i The Respondents have excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE 209 IRVING RocosIN, Administrative Law Judge: The com- plaint, issued August 6, 1975, alleges that Respondents have engaged in unfair labor practices within the meaning of Section 8(e) and Section 2(6) and (7) of the Act. Specifically, the complaint alleges that, since about July 1, 1974, Respondents have been parties to a collective-bar- gaining agreement with Underground Engineering Con- tractors Association, an employer association, whose mem- bers, including Inland Concrete Construction, Inc., are engaged in the construction industry in Southern Califor- nia; that said collective-bargaining agreement contains a so-called "union signatory" provision, requiring employees performing jobsite construction work to be members of an appropriate union; and that Respondents have "invoked, reaffirmed, applied, maintained and given effect" to said union signatory provision to require said Inland Concrete Construction, Inc., a member of said Association, to cease or refrain from doing business with Inland Concrete Enter- prises, Inc., another employer or person, thereby violating Section 8(e) of the Act. Respondents' answer admits generally the procedural and jurisdictional allegations of the complaint, but denies the substantive allegations and the commission of any un- fair labor practices.' Hearing was held before me on October 14 and 15, 1975, at Los Angeles, California. The General Counsel, Respon- dent, and the Charging Party were represented by counsel, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce oral and documenta- ry evidence relevant and material to the issues, to argue orally, and to file briefs and proposed findings of fact and conclusions of law. All parties waived oral argument and were granted until November 19, 1975, to file briefs, which were timely received. No proposed findings of fact or con- clusions of law have been filed by any of the parties. Upon the entire record in the case, and based upon the appearance and demeanor of the witnesses, and the briefs, which have been duly considered, I hereby make the fol- lowing: i Designations herein are as follows The General Counsel, unless other- wise stated or required by the context, his representative at the hearing, Joint Council of Teamsters No 42, Respondent Joint Council or the Joint Council, and General Teamsters, Chauffeurs, Warehousemen and Helpers, Local 982, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Respondent Local 982 or Local 982, and jointly hereinafter as Respondent Union or Respondent, Inland Con- crete Construction, Inc , ICC, Inland Concrete Enterprises, Inc, ICE; Un- derground Engineering Contractors Association, UECA, the National La- bor Relations Act, as amended (61 Stat. 136, 73 Stat 519, 29 U S C Sec 151, et seq ), the Act, the National Labor Relations Board, the Board The unfair labor practice charge was filed and served on January 29, 1975 2 The General Counsel's motion, dated November 18, 1975, and Respondent's motion, contained in its brief, to correct the transcript in the respects indicated are hereby allowed, without objection 225 NLRB No. 32 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS Inland Concrete Construction , Inc., herein called ICC, is now, and at all times material has been , a corporation duly organized under the laws of the State of California , with an office and principal place of business located at Riverside, California, where it is engaged in the construction industry. At all times material herein, ICC has been a member of the Underground Engineering Contractors Association, herein called UECA or the Association, a multiemployer collective-bargaining association, which exists, in part, for the purposes of negotiating, executing, and administering multiemployer collective-bargaining agreements on behalf of its respective employer-members, including ICC, en- gaged in the construction industry in Southern California.' The employer-members of UECA constitute an appropn- ate single multiemployer unit for the purposes of collective bargaining, and collectively purchase and receive goods valued in excess of $50,000 annually directly from points outside the State of California for use within the State. It is, therefore, found, upon the basis of the foregoing and upon the entire record , that, at all times material here- in, UECA and its employer-members, including ICC, have constituted an employer engaged in commerce within the meaning of Section 2(2), in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATIONS INVOLVED Joint Council of Teamsters No. 42, and General Team- sters, Chauffeurs, Warehousemen & Helpers, Local 982, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondent Joint Council and Respondent Local 982, respectively, are, and at all times material herein have been, labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues 1. Whether at all times material herein ICE and ICC have constituted a single employer. 2. Whether, to support a violation of Section 8(e) of the Act, a finding is required that ICE and ICC were, at all times material, separate employers. 3. Whether, by entering into, maintaining, enforcing, and giving effect to, the collective-bargaining agreement with UECA, applicable to ICC, and containing a so-called "union signatory" provision, designated as PARAGRAPH J, Respondent has engaged in unfair labor practices within the meaning of Section 8(e) of the Act. 3 Although ICE was a supplier member of UECA in 1973, it ceased to be a member thereafter, and was never a party to the Master Labor Agreement between UECA and Respondent Nor has ICE been a party to a collective- bargaining agreement with Respondent or any other union There is no contention that ICE operated as a nonunion plant to hinder or defeat the Union's status as bargaining representative of ICC's employees 4. Whether the transportation and delivery by ICE of ready-mix concrete and precast concrete products to ICC, a party to the collective-bargaining agreement with Re- spondent, containing said PARAGRAPH J, constituted the de- livery of supplies and materials or other products to the jobsite rather than the contracting or subcontracting of work to be done at the site of the construction, as permit- ted by the proviso to Section 8(e) of the Act. 5. Whether the award by the Joint Adjustment Board of compensatory damages against ICC for alleged breach of PARAGRAPH J of the Master Labor Agreement constituted a violation of Section 8(e) of the Act. B. The Relationship Between ICE and ICC 1. The status of ICE ICE, a California corporation, with facilities located at Riverside, California, was organized on January 20, 1969, with the following officers: Margaret Watson, president; Polly Duffy, treasurer; and Mary Lynch, wife of Thomas D. Lynch, secretary. Lynch was not employed by the cor- poration at that time, but, with his wife, Mary, owned 40 percent of the shares of stock. Polly Duffy and her hus- band, Jack, held 35 percent, and Don Zarroanandia the remaining 25 percent. At the first annual meeting, in June 1969, Thomas D. Lynch became president and general manager; Jack Duffy was elected vice president; Marilou Weiss, later known as Marilou Sheets, treasurer; and Zar- roanandia, secretary. The ratio of stock holdings remained unchanged. In January 1970 a change in stock ownership occurred, whereby Zarroanandia surrendered his stock, and Lynch and Duffy each acquired 50 percent of the stock. As of January 1971, Lynch continued as president; Mary Lynch as vice president and secretary; and Marilou Weiss as trea- surer. At this time, the corporation acquired Duffy's hold- ings as treasury stock. Weiss, who has served as treasurer of ICE since 1971, has also acted as bookkeeper and pay- roll clerk for that Company and has assisted in scheduling deliveries and dispatching trucks, whenever necessary. She has owned no stock in the corporation. Thomas Lynch has been sole stockholder, as well as chief corporate officer and general manager, of ICE since 1971. At its inception, ICE engaged primarily in the manufac- ture of precast concrete products, consisting of access man- holes for water, sewer, and drainage usage. Later, about September 1972, ICE commenced supplying ready-mix concrete and fabricated steel products. Precast concrete manholes are manufactured by an assembly-line method, in which concrete is poured into forms, the manholes re- moved after they have set, stock-piled, and later transport- ed and delivered to the jobsite of the customer. The man- holes are produced in segments weighing 300 to 6,000 pounds and averaging approximately 3,000 pounds. During 1974 ICE employed about eight production em- ployees, under the supervision of Paul Watts. Three addi- tional employees, classified as truckdrivers, under Lynch's supervision, were engaged in the delivery of the manufac- tured products. In delivering precast concrete pipe, the truckdrivers operated 3-axle flatbed trucks, equipped with JOINT COUNCIL OF TEAMSTERS NO. 42 a loading boom or crane, described as boom trucks, in conjunction with 2-axle trailers. Other equipment used by ICE consisted of a ready-mix concrete vehicle, loaders, and several pickup trucks and automobiles. Early in 1974 ICE acquired a "concrete mobile" mixer, a comparatively re- cent innovation, consisting of a 3-axle truck designed to load and dispense ready-mixed concrete. 2. The formation of ICC In May 1972 a group of precast concrete manhole instal- lers, together with John Figueiredo and Richard Hummel, two ICE boom truck operators, and Earl Ragsdale, ap- proached Lynch about forming a company to engage in the construction of manholes. Lynch agreed to finance the venture and became the original shareholder, acquiring 1,000 shares, all the initial stock issued of the 25,000 au- thonzed shares. ICC's original officers were: Lynch, presi- dent; Ragsdale, vice president; Marilou Weiss (later Sheets), secretary; and Mary Lynch, treasurer. Gerald Bar- ton, one of the original promoters, a member of the Labor- ers local union in San Bernardino , was the first employee hired and worked as a laborer. Ragsdale started almost immediately, serving in the capacity of "estimator, sales- man, dispatcher, troubleshooter, [and] jack-of-all-trades." Weiss, corporate secretary of ICE, also served as book- keeper of ICC under a financial arrangement with ICE. Lynch, however, did not serve as an employee of ICC. Actual hiring of employees for ICC did not commence until about September 1972. At that time a new office was built for ICE on the site which it had previously occupied, and a construction trailer was acquired by ICC for use as an office and placed on the same property. Sometime in 1973 Ragsdale hired Yvonne Guthrie, a former ICE cleri- cal employee, to work for ICC. Guthrie was replaced at ICE by Mary Lynch. About March 1973, Figueiredo acquired 1,000 shares of stock and Weiss, 500 shares. By late December 1973, or early January 1974, Ragsdale and six other individuals, in- cluding Guthrie, had acquired 1,000 shares each. To raise additional capital, Lynch purchased the balance of 16,500 of the 25,000 shares of authorized stock. In October 1975 (before the hearing in this proceeding), in addition to the above stockholders, three, including Mary Lynch, acquired 1,000 shares each. Thomas Lynch then returned all but 1,000, of his holdings of 13,500 shares, to ICC as treasury stock, leaving him, at the time of the hearing, with a total of 1,000 shares. The officers of ICC have remained un- changed. Although Lynch serves as president of both corpora- tions, his activities are confined primarily to the operations of ICE, which pays his compensation. He receives no sal- ary or remuneration from ICC, but, like other employees, may receive a bonus in lieu of dividends, when earnings warrant, for acting in an advisory capacity, for which his background in civil engineering and 20 years in the con- struction industry qualify him. He received a bonus in 1973 in an undisclosed amount, but not since. According to Lynch's undisputed testimony, Vice President Ragsdale is the active management official of ICC, conducting its day- to-day operations, responsible only to its stockholders. 211 It is not strictly accurate to say, as the General Counsel asserts, that ICE and ICC are engaged in wholly unrelated businesses. It is obvious, however, that they differ basically in that ICE is the manufacturer or supplier of precast con- crete pipe and ready-mix concrete, whereas ICC is a con- tractor engaged in the construction of sewers and drainage systems, utilizing products manufactured by ICE and others. It should be noted that, in 1974, ICC purchased about 30 percent of the materials used in its operations from suppliers other than ICE. ICE, in turn, derived ap- proximately one-half of its gross revenues from sales to ICC, billing ICC at the end of the month as it did with other customers. Contrasting the operations of the two companies , Lynch explained that ICE is wholly engaged in the manufacture of precast concrete products by a repeti- tive, "assembly line" method, at its facility, in which its employees work on a year-round basis, whereas ICC, a construction company, performs jobsite construction work, hiring employees only as and when needed. The companies maintain separate offices, though at the same location, separate telephones and directory listings. ICE advertises in the telephone directory and trade publi- cations but ICC does not, obtaining its business by bidding on available construction projects. Each company main- tains a separate bank account, with a separate line of cred- it, and separate payrolls, issuing payroll checks on separate accounts. The companies prepare separate financial state- ments and file separate tax returns . ICE operates on a fis- cal year basis, ending March 31, while ICC operates on a calendar year. Neither corporation guarantees the obliga- tions of the other, but Lynch guarantees all ICE, but not ICC, obligations. The companies share the same bookkeep- er, Marilou Weiss, but ICE bills ICC for her services. Sepa- rate meetings of boards of directors are held for each cor- poration. There has been no significant interchange of employees or equipment between the two corporations. According to Yvonne Guthrie, who acted as dispatcher for ICC, she dis- patched only two ICE employees to ICC jobsites, one, for a period of 1 week, the other, for a single day, both to assist Figueiredo at the Rock Creek Project. In this connection, Lynch testified that in the summer of 1974 Gene Parsons, the driver of the ICE concrete-mobile mixer, telephoned him from Mammoth Lakes, where ICE had established a batch plant, and suggested that the concrete -mobile opera- tion ought to be transferred to ICC, and that he, Parsons, ought to be working for that company in order to secure better cooperation from the construction workers. Lynch told Parsons that it was essential to maintain the separation between ICE, as a material supplier, and ICC, as a con- struction company, and that there was no possibility of integrating the concrete-mobile and construction opera- tions. According to Lynch, Parsons acquiesced, and the matter was not pursued. In a second conversation about August 19, Parsons again called Lynch from Mammoth Lakes and told him that Figueiredo was badly in need of help because of the weight of the frames, covers, and castings, some weighing nearly 800 pounds, at the Rock Creek Project. Parsons asked Lynch if he might assist Figueiredo in handling 25 frames and covers that day. Lynch gave his consent but a 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD day or so later, Parsons called and told him that the work was too heavy and he did not want to continue. Lynch told Parsons that he ought not to have become involved in con- struction work in the first place.' On several occasions, ICE rented boom trucks to ICC for use on some of its projects, including an occasion when Figueiredo drove a truck to Mammoth Lakes. On isolated occasions, when Guthrie lacked equipment to make a de- livery, which construction laborers or cement masons ur- gently needed, she has rented a truck from ICE, which was operated by an ICC employee. In these instances the oper- ator would be paid by ICC, which was billed for the use of the truck. Apart from this, there is scant evidence that ICC laborers and cement masons performed any work normally done by ICE's employees or vice versa.' There has also been no significant interchange of em- ployees between ICE and ICC at the supervisory level. Ragsdale, ICC's managing officer, has performed no serv- ices for nor received any compensation from ICE since the formation of ICC. In the case of Guthrie, who transferred from ICE to ICC in the fall of 1973, services which she rendered to ICE thereafter involved occasional handing of written orders left by Lynch for Parsons, which she did as a matter of accommodation. Supervisor Paul Watts, an ICE employee, worked at the Rock Creek Project for about a week. Weiss, as has been mentioned, acted as bookkeeper for both corporations, but ICE billed ICC for her services. Although Lynch rendered technical advice to ICC during periodic visits to the Rock Creek Project, lasting no more than a day at a time, he received no direct compensation for these services. Despite Parsons' testimony that, in April and May 1974, while he was driving a boom truck for ICC, he heard Lynch dispatch ICC employees on about 30 occa- sions, the record establishes that Lynch did so merely while training and assisting Guthrie during the 9 months after her transfer from ICE, and that Guthrie performed more than 50 percent of the dispatching for ICC during this period. While Lynch exercised complete control over ICE's op- erations and labor relations, in his capacity as president and general manager, his participation in labor relations on behalf of ICC was confined to what he characterized as "major labor problems," such as signing collective-bar- 4 Parsons' version differed in that, according to him, Lynch had directed him to assist Figueiredo at the jobsite , told him to keep a record on his timecard of the hours worked for ICC, and that he would be paid the difference between his wages at ICE and those at the construction project for the time he worked for ICC According to Parsons, he worked for ICC a total of approximately 40 hours during August, September, and October 1974 Lynch denied this conversation, and Parsons acknowledged that he was never paid the ICC wage rate On cross-examination, Parsons testified that Lynch merely stated that he would "take care" of him, without being more specific In his pretrial affidavit to a Board agent , on February 20, 1975, Parsons made no mention of Lynch's alleged statement that Parsons would be compensated for the difference between the ICE and ICC wage scales for the time he assisted Figueiredo According to Guthrie, she never dispatched Parsons to any specificjob location in 1974 and had no recollec- tion of ICE billing ICC during that year for services performed by Parsons 5 Despite Parsons' testimony that ICC employees Hummel, Figueiredo, and Flemming operated ICE boom trucks in 1974, Parsons was vague and uncertain about when and how often this occurred Moreover, Parsons did not suggest that these employees were making deliveries to customers other than ICC or that they were paid by ICE gaining agreements, in his capacity as titular head of that corporation. He did not, however, participate in day-to- day labor relations matters, which were generally handled by Guthrie and Foreman Barton, who were authorized by Ragsdale to hire sewer construction workers, without prior clearance with management. Ragsdale himself represented ICC as an employer-member of UECA, and regarded membership in that organization as "a sales tool." Lynch did, however, execute short-form collective-bargaining agreements with the Laborers, Cement Masons, and Oper- ating Engineers Locals in the Riverside, California, area, in his capacity as president of ICC, because Ragsdale consid- ered that the agreements furnished "promotional value." The only other instance of Lynch's participation in ICC's labor relations involved the grievance, arising out of the alleged violation of PARAGRAPH J of the Master Labor Agreement, involved in this proceeding. After discussing the matter with Ragsdale and the other stockholders, Lynch was instructed to represent ICC in the grievance proceedings. The decision to refuse to pay the damages assessed against ICC, following the hearing before the Joint Adjustment Council, was made by the stockholders. Based on the foregoing, Respondent contends that ICE and ICC constitute a single employer and, consequently, that PARAGRAPH J, the union-signatory clause of the Master Labor Agreement, can have no secondary impact. The General Counsel on the other hand, maintains that ICE and ICC are separate employers and that the union-signa- tory clause is proscribed by Section 8(e). The Board has held, with court approval, that the criteria to be applied in determining whether separate companies constitute a single employer are: (1) interrelation of opera- tions; (2) centralized control of labor relations; (3) com- mon management and common ownership or financial control .6 While no one of these factors has been deemed to be controlling, the first, bearing on the issue of whether the enterprises are sufficiently integrated, and the second, re- lating to centralized control of labor relations, have been regarded significant. However, common ownership alone or the mere existence of a potential for common control will not necessarily require a finding that the two employ- ers constitute a single employer.' Actual control of the day- to-day operations and labor relations policies of the enter- prises in question have been held to be more important.' 6 Radio and Television Broadcast Technicians Local Union 1264, interna- tional Brotherhood of Electrical Workers, AFL-CIO v Broadcast Service of Mobile, Inc, No 61, 380 U S 255, Sakrete of Northern California, Inc v N L R B, 332 F 2d 902 (C A 9, 1964), cert denied 379 U S 961 (1965) 7 Drivers, Chauffeurs and Helpers Local No 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Poole's Warehousing, Inc), 158 NLRB 1281, 1286 (1966) 8 Building Material & Construction Teamsters Union Local No 216, inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Bigge Drayage Company), 198 NLRB 1046 (1972), Los Angeles Newspaper Guild, Local 69 (Los Angeles Herald-Examiner, Division of the Hearst Corporation), 185 NLRB 303 (1970), enfd 443 F 2d 1 173 (C A 9, 1971) See also Gerace Construction, Inc and Helger Construction Company, Inc, 193 NLRB 645 (1971), where the Board stated, "A critical factor in determining whether separate legal entities operate as a single employing enterprise is the degree of common control of labor relations policies Thus, the Board has found common ownership not determinative where requisite common control was not shown, and the Board has held with court approv- al that such common control must be actual or active as distinguished from potential control " (Citations omitted ) JOINT COUNCIL OF TEAMSTERS NO. 42 The court's recent decision in the Kiewit case 9 is not necessarily inconsistent with the Board's previously estab- lished policy. The court held there that, " `single employer' status, for purposes of the [Act], depends upon all the cir- cumstances of the case, that not all of the `controlling crite- ria' specified by the Supreme Court need be present; that, in addition to the criterion of common ownership or finan- cial control, the other criteria, whether or not they are pres- ent at the top level of management, are `controlling' indi- cia of the actual exercise of the power of common ownership or financial control; and that the standard for evaluating such exercise of power is whether, as matter of substance, there is the `arm's length relationship found among unintegrated companies."' The Board used similar language, in Overton Markets,10 noting that the circumstances were not "characteristic of the arm's length relationship found among unintegrated companies," and concluded that the companies constituted a single employer for purposes of the Act. Applying the criteria used by both the Board and the courts to the facts of this case, it becomes evident that there was no "substantial qualitative degree of interrelation of operations and common management" between the two companies, and that there existed the "arm's length rela- tionship found existing among unintegrated companies." Thus, although Lynch was the sole stockholder of ICE and, until October 1975, owned the majority of ICC's author- ized stock," such common ownership, without more, is not sufficient to render the companies a single employer. Lynch's control of day-to-day operations and labor rela- tions was confined to ICE. It may be that, as president of both corporations, he possessed potential control of ICC's labor relations, but this control was exercised only to the extent of formal execution of ICC's collective-bargaining agreements, negotiated, incidentally, by UECA, in his titu- lar capacity of president. For all practical purposes, actual control of ICC's day-to-day operations and labor relations was vested in Vice President Ragsdale. The only other situ- ation in which Lynch purportedly represented ICC in a labor relations matter was before the Joint Adjustment Board, and this he did on express instructions from Rags- dale and the other stockholders. The operations of the companies were distinctly different. There was no signifi- cant interchange of employees, high-level supervisors, or equipment. On occasions when ICC rented boom trucks from ICE, it was billed for the rentals. Financial matters were handled separately for each company. Although ICC purchased about 70 percent of its products from ICE, which sold 50 percent of its precast concrete manholes to other customers, ICC was treated no differently than the other customers. In sum, the record fairly establishes the existence of an 9 Local No 627, International Union of Operating Engineers, AFL-CIO (South Prairie Construction Company and Peter Kiewit Sons' Company), v NLRB, 518 F2d 1040(CADC, 1975) 10 142 NLRB 615, 619 11 Respondent has intimated that Lynch divested himself of the bulk of his ICC stock in October in order to fortify his position that the companies were separate entities, presumably in anticipation of the hearing Although no reason was given for this divestiture, the record does not support a finding that that was Lynch's purpose 213 "arm's length relationship" between ICE and ICC suffi- cient to establish them separate employers, and it is so found.12 In view of this finding, it is unnecessary to decide wheth- er, as argued by the Charging Party, the mere existence of the union-signatory provision constitutes a violation of Section 8(e) of the Act irrespective of whether ICE and ICC constituted separate employers. C. The Union-Signatory Clause The complaint alleges, Respondent 's answer admits, and it is hereby found that since about July 1, 1974, and at all times material herein, ICC as an employer -member of UECA, has been a party to a collective-bargaining agree- ment with Respondent Council , of which Respondent Lo- cal 982 is a member. 13 It is further admitted , and found, that said collective- bargaining agreement contains the following provision: PARAGRAPH J SUBCONTRACTOR warrants and agrees that with respect to any of the work covered by this Agreement which is to be performed at the site of construction, his em- ployees performing such work are and shall be subject to and covered by an appropriate current labor agree- ment with the appropriate union, or subordinate body, affiliated with the Building and Construction Trades Department, AFL-CIO, or with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, or an affiliate thereof. SUBCONTRACTOR promises to require any of his subcon- tractors on the job site to make as to him a warranty and agreement in writing identical to the foregoing. Respondent further admits that between March 15, 1974, and October 10, 1974, Steve P. Rados, Inc., herein called Rados, a general contractor, was engaged in the con- struction of a sewer system, described as the Rock Creek Project, herein referred to as the Project, in the Inyo Na- tional Forest near Bishop, California. On or about March 18, 1974, Rados subcontracted the construction, delivery and installation of precast concrete manholes at the Project to ICC. Within a day or two, ICC, the construction company, entered into a contract with ICE, the supplier, providing for the delivery of precast con- crete pipe required for the manholes, as well as ready- mixed concrete, for use at the Project. To facilitate the delivery of ready-mixed concrete to the Project, ICE ac- 12 The facts of the instant case are substantially similar to those in Car- penters District Council of Houston and Vicinity (Baxter Construction Compa- ny, Inc), 201 NLRB 23, 25-26 (1973), where it was found that, notwith- standing that a union and nonunion company were substantially owned and controlled by the same person, shared an office, equipment, and bookkeep- er, but maintained separate telephones, and engaged in no interchange of employees, control of day-to-day operations of the one company by the other was potential rather than actual, and the two companies constituted separate employer or persons for the purpose of Sec 8(b)(4)(B) of the Act. See also Gerace Construction, supra, International Brotherhood of Boilermak- ers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local 92 (Bigge Drayage Company), 197 NLRB 281, 285-286 (1972) 13 The collective-bargaining agreement is not in evidence and the dura- tion of the agreement has not been established , beyond the fact that it was in effect at all times material to these proceedings 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quired a "concrete-mobile," later described, and estab- lished a batch plant near Mammoth Lakes, California, a distance of some 20 miles from the Project. During the summer and fall of 1974, ICE delivered the ready-mixed concrete from its batch plant, and the precast concrete pipe from its manufacturing facility located at Riverside, Cali- fornia, a 5-hour drive from the Project. It is conceded that ICC completed its contract with Rados, and that ICE com- pleted its contract with ICC on about October 10, 1974. On about December 4, 1974, the Union filed a griev- ance 14 with the Construction Joint Adjustment Board Grievance Committee, alleging that ICC had violated spec- ified articles of the collective-bargaining agreement by "us- [ing] two non-dispatched drivers on two separate trucks in Bishop," and requesting "[a]ll pay lost to deprived work- men on `A' Out of Work List." On January 9, 1975, the Joint Adjustment Board, con- sisting of three union and three employer committeemen and an impartial chairman, issued the following: DECISION: Inland Concrete Construction, Inc., violated the Master Labor Agreement when it failed to require that Inland Concrete Enterprises, Inc. (which is found by the Board to have been its subcontractor) comply with the Master Labor Agreement covering work per- formed by Inland Concrete Enterprises, Inc. at the jobsite. That work consisted of operating a boom truck in the precise placing of pre-cast manholes on the jobsite, and of operating a mixer on the jobsite in the manner described by the evidence. The Remedy: Inland Concrete Construction, Inc. shall pay $1,200 to the Construction Teamsters Securi- ty Fund for Southern California, as an assessment for compensatory damages. This assessment has never been paid, and there is no evidence that Respondent has attempted to enforce the award against ICC. D. ICE deliveries to the Rock Creek Project 1. Delivery of ready-mixed concrete Prior to 1974, ICE operated a drum-type, ready-mix ve- hicle for the production and delivery of concrete to various customers. Early in 1974, it acquired a new type of ready- mix vehicle known as a concrete-mobile mixer. In the operation of the drum-type, ready-mix vehicle, sand, gravel, cement, and water are loaded into the drum and mixed to produce concrete. This may occur while the vehicle is being driven to the delivery site or after it reaches its destination. Depending on the quantity of the mix de- sired, water may be added to the other ingredients at the delivery site in accordance with the contractor's specifica- tions. When the contractor is ready to accept delivery, the driver sets the controls to regulate the speed of the drum, 14 The grievance appears to be undated and the date in the text is based on the allegation in the complaint and the admission in the answer The grievance refers to art II, sec 204 5, sec 204 7 2 of the contract, the con- tents of which are not in evidence There appears to be no dispute, however, that the provision of the collective-bargaining agreement directly involved is PARAGRAPH J, quoted above adjusts the mixer for the discharge position, lowers and adjusts the discharge chute to the pouring position, and presses a button to release the mixed concrete into forms provided by the contractor. With the concrete-mobile mixer, sand and gravel are loaded into separate bins situated in the center of the vehi- cle. A bin at the rear of the vehicle also contains cement. Water is stored in a 300-gallon tank behind the cab of the truck. A water pump and hydraulic system are located be- neath the sand and gravel storage bins. The discharge chute is situated beneath the cement bin, and the mixing auger is located inside the chute. Dials regulating the mix- ing of the concrete are located in the center of the truck. The principal difference between the drum-type mixer and the concrete-mobile mixer is that, in the case of the former, the proportion of the ingredients cannot be altered once the vehicle has been dispatched from the hatching site. Moreover, once the water has been added, the entire contents of the drum must be poured, although the water can be added after the vehicle arrives at the construction jobsite, and the entire mixing operation performed there. In delivering concrete by means of the concrete-mobile, the ingredients are loaded into separate storage bins at the supplier's facility, and transported to the jobsite, where the ingredients are mixed according to the contractor's specifi- cations. Upon arrival at the jobsite, the concrete-mobile driver lowers and places the discharge chute at the rear of the truck in the pouring position. Operation of the controls causes the ingredients to be drawn from the separate com- partments into the auger, located in the middle of the pour- ing chute, which mixes the ingredients. The proportions of the ingredients may be regulated prior to mixing by adjust- ing dials on the concrete-mobile. Since the concrete used on the Rock Creek Project was prepared according to a single specification, it was unnecessary to change the dials after they were set at the batch plant. After the driver has discharged the concrete into the forms or molds provided by the contractor, the ICC construction employee shapes and smooths the concrete into place. The driver remains at his truck until it is determined whether additional concrete may be required for the manhole. The driver performs no services other than the pouring of the concrete. When the pouring at that manhole has been completed, the driver returns to his truck and proceeds to the next manhole site, where the operation is repeated.ls After acquiring the concrete-mobile, ICE moved the ve- hicle to Mammoth Lakes, California, where it established a separate batching and storing facility to serve various cus- tomers, including Rados and ICC. ICE also established a telephone answering service at this facility for the conve- nience of customers in the area. Initially, William Barndt, an ICE driver, was assigned to operate the concrete-mobile mixer in the Mammoth Lakes 15 Parsons, operator of the concrete-mobile, testified that on several occa- sions he replenished the concrete-mobile at the jobsite, although he was unable to furnish specific instances According to Lynch, however, ICE also sold ready-mixed concrete to Rados, the general contractor, for use in the setting of floors in comfort stations at the Rock Creek Project, and that Rados hauled these materials in his own loader It is probable that this was what Parsons had in mind JOINT COUNCIL OF TEAMSTERS NO 42 215 area. He was replaced early in June by Parsons, who con- tinued in that job until October 1974. During this period, Parsons made deliveries to the ICC project on a daily basis, driving from the Mammoth Lakes batch plant to the proj- ect, a trip consuming 30 or 40 minutes.' Upon arrival at the jobsite, Parsons ascertained from Figueiredo where the concrete for the manhole foundations was to be delivered. The forms for the manhole foundations were located in a trench, varying from 3 to 20 feet in depth. When Figueiredo would indicate where he wanted the concrete poured, Parsons would fill out an order slip, and await a signal from Figueiredo to pour the concrete. The method of delivery, as described by Parsons, was as fol- lows: Q. What would you do then after you arrived at the location and you had prepared the ticket? A. I would set up my machine to be ready to pour the concrete or whenever I got the signal from him to start unloading. Q. How would you set it up? A. Well, you had an auger system on the back to lower it down. Q. Describe what you mean by an "auger system". A. This machine had a bin on each side, sand on one side and gravel on the other side and cement in the back. It always takes the same amount of cement and it had dials on the side that you would set for the sand and the gravel and this would determine your sack mix that you would get and this compartment is, there is a belt on the bottom of it, and you throw a switch and the product comes out the back end into this auger [sic] turns around, has an eight-foot reach, I believe, plus a chute, whatever you needed; and then you would have your product, your concrete. Parsons would remain at the vehicle, guiding the discharge chute, while Figueiredo remained inside the ditch spread- ing the concrete in the form and leveling the foundation. When the required amount of concrete had been dis- charged, Parsons would replace the chute and drive to the next manhole foundation where the process would be re- peated until all the concrete foundations were poured. 2. Delivery of the precast concrete manhole pipe The precast concrete manhole pipe manufactured by ICE for the Rock Creek Project consisted of segments mea- suring 60 inches in outside diameter and 48 inches inside, weighing between 300 and 6,000 pounds. The number of concrete pipe sections required for each manhole was de- 16 Parsons testified that he loaded the ingredients at the storage area maintained by Rados, whose employees assisted Parsons in loading his truck Parsons was unable to furnish details regarding such deliveries but conceded that they did not amount to more than two or three deliveries Lynch, however, testified that this storage facility was established to exped- ite deliveries to Rados and not ICC Lynch testified that if Parsons used these materials for ICC, it was apparently done without objection from Rados and, in any event, without Lynch's knowledge or approval termined by the depth of the sewer line below ground level at a given point. The concrete pipe sections were loaded on ICE boom trucks and transported from the Riverside facil- ity to the project. ICE operated seven boom trucks, consist- ing of 3-axle trucks, equipped with a crane and two outrig- ger-type supports, to provide greater stability during the unloading operation. The boom trucks usually hauled trail- ers, carrying additional concrete manhole pipe, which were parked near the jobsite until needed. The pipe sections were unloaded from the boom trucks with the use of a clamp-type device, which gripped the pipe section. The driver then manipulated the boom or crane by means of a remote control panel, while standing outside his cab, to hoist the pipe from the truck and lower it into the trench. The construction worker in the trench guided the section of pipe into position on the foundation to which he had applied mortar. The ICE driver then released the pipe from the boom, and the ICC worker applied more mortar to set the pipe firmly in place. The ICE driver then re- turned to the truck to prepare to unload the next section of pipe for mounting on the section already installed, in the manner previously described. Between June and November 1974, approximately 90 percent of all precast concrete pipe supplied by ICE to ICC was delivered to the project by Dale Burnett, an ICE driv- er, who averaged about one delivery a week. With the aid of a delivery instruction sheet, Burnett ascertained the number and types of manhole sections required, loaded them on his truck at the Riverside facility, and transported them to the project. There, he would meet Figueiredo for instructions as to where the pipe sections were to be deliv- ered. As has been noted, the number of sections required for each manhole depended on the depth of the trench at the site of the particular manhole. Generally, however, the manhole consisted of a shaft resting on the foundation (for which the concrete had been poured by Parsons), on which was superimposed a precast section in the shape of a cone. When the pipe sections on the boom truck had been deliv- ered in this manner, Burnett would transfer more pipe sec- tions from the trailer to his truck and proceed to the loca- tion of the next manhole. On a normal run, Burnett hauled a sufficient number of pipe sections to complete the con- struction of an average of 10 manholes.' When the un- loading of the pipe sections, in the manner described, was fully completed, Burnett returned to his station at River- side. Altogether, ICC constructed 70 manholes at the Rock Creek Project, valued at $40,000 out of a total cost for the entire sewer project amounting to $2 million. 17 Burnett described the delivery operation as follows Q What would you see Mr Figueiredo doing while you were oper- ating the boom, lowering the pipe9 A He would have already mixed up more mortar and put a base down and then he would set this pipe on it and in the meantime, while I was getting another piece or the last piece, he would be putting more mortar on the piece of pipe that I had previously set and do the same operation all over Q Would anyone else besides Mr Figueiredo ever put the mortar on the pipe' A At times when he had other help from Inland Concrete Construc- tion out there, yes, sir [Naming employees of ICC I 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. The 8(e) Violation Section 8(e) of the Act provides that it shall be an unfair labor practice for a union and an employer to enter into any contract or agreement, express or implied, in which such employer ceases or refrains or agrees to cease or re- frain from handling, using, selling, transporting, or other- wise dealing in any of the products of any other employer or to cease doing business with any other person. Under a proviso, however, an exception is made for agreements be- tween a union and an employer engaged in the "construc- tion industry" relating to the contracting or subcontracting of work to be done at the site of the construction. Thus, it is not seriously disputed that PARAGRAPH J of the Master Labor Agreement, the so-called "union-signatory" clause, which required the subcontractor to refrain from doing business with any subcontractor who is not a party to an appropriate labor contract, would be violative of Sec- tion 8(e), were it not for the proviso. PARAGRAPH J was obvi- ously drafted to secure the protection of the proviso. The issue to be determined, then, is whether the delivery of ready-mix concrete and precast concrete pipe, in the man- ner described, constituted jobsite work, within the meaning of the proviso, rather than delivery of materials, supplies, or products to the construction site. 1. Delivery of ready-mix concrete. The General Counsel and the Charging Party maintain that Island Dock Lumber 18 is dispositive of the issue. In that case the union contended that the supplier's drivers were performing jobsite work in violation of the subcon- tracting clause of a collective-bargaining agreement. After a detailed description of the services performed by the drivers at the jobsite, the Board concluded that the mixing and delivery of ready-mix concrete at the construction site was not construction work but the delivery of a material or product. Adverting to the legislative history of Section 8(e), the Board said: The House Conference Report on the 1959 amend- ments to the Act 8 states with respect to the construc- tion industry proviso: The proviso does not exempt from Section 8(e) agreements relating to supplies and materials or other products shipped or otherwise transported to and delivered on the site of the construction. [Empha- sis supplied.] 8 H Conf Rept 1147, 86th Cong, 1st secs , p 39, 11 Leg Hist 943 Referring to the findings of the Trial Examiner, adopted by the Board, in Connecticut Sand and Stone,19 the Board concluded in Island Dock Lumber at 491: We now affirm that finding, and conclude that the mixing and delivery of ready-mix concrete at con- struction sites is not construction work but is the deliv- ery of a material or product ... . For the foregoing reasons, we hold that the delivery of ready-mix concrete does not come within the con- struction industry proviso, and that the contract with Island Dock did not involve the subcontracting of on- site work, but was in reality a contract for the delivery of materials. Accordingly, we find that article VI of the AGC contract-to the extent that that article, as construed and interpreted by Respondent, may re- quire that mixing and delivery of concrete be done by members of Respondent-violates Section 8(e) of the Act ....20 The method of mixing and delivery of ready-mix con- crete in the instant case is virtually identical to that de- scribed in Island Dock Lumber. The only difference of any significance is the use of the concrete-mobile here to ac- complish the same result. This, in Respondent's view, is sufficient to distinguish the cases, and to require a contrary conclusion. It may be noted parenthetically that the Charg- ing Party's argument, that it could have utilized a drum- type vehicle for the delivery of concrete to the project, and thus brought itself within the holding of Island Dock, is beside the point. ICE elected to make deliveries by means of the concrete-mobile vehicle and is, therefore, to be held responsible for the consequences of that decision. The method by which concrete is produced and deliv- ered by means of the concrete-mobile has been described elsewhere. The essential difference between the two types of operation is that in the case of the concrete-mobile, the ingredients are loaded into the vehicle at the batch plant in separate bins or compartments so that the driver can regu- late the type of mix at the point of delivery, according to the customer's specifications. With regard to the drum-type mixer, the combined ingredients are loaded into a revolv- ing drum at the supplier's plant, and the mixing operation may take place while the vehicle is en route to the place of delivery or at the jobsite. Thus, Respondent contends that in the present case, unlike the situation in Island Dock, the actual mixing operation is performed at the jobsite, and hence constitutes on-site construction work, exempt by the proviso from Section 8(e). The Board held, however, in Island Dock that, although "the mixing may have taken place on the site, it could equally have taken place off site, the location of the mixing act being highly immaterial to the mixing operation it- self." 21 In that case, the mixing operation was performed at the jobsite after water was added to the ingredients. Since the Board has held that delivery is not complete until and Stone Corporation), 138 NLRB 532 (1962) 20 See also Drivers, Salesmen, Warehousemen, Milk Processors, Cannery, Dairy Employees and Helpers Local Union No 695 (Threlfall Construction 18 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Company), 152 NLRB 577, 581 (1965), enfd 361 F 2d 547 (C A D C., 1966), Helpers of America, Local 294 (Island Dock Lumber, Inc), 145 NLRB 484 Local Union No 551, International Brotherhood of Teamsters, Chauffeurs, (1963), enfd 342 F 2d 18 (C A 2) Warehousmen & Helpers of America, Ind (Dravo Corporation, etc), 176 19 Teamsters Local Union No 559, a/w International Brotherhood of Team- NLRB 801, 804 (1969) sters, Chauffeurs, Warehousemen and Helpers of America (Connecticut Sand 21 International Brotherhood of Teamsters, Local 294, supra at 491 JOINT COUNCIL OF TEAMSTERS NO. 42 217 the concrete has been poured, the fact that the supplier operated a concrete-mobile for the mixing and delivery of liquid concrete at the jobsite, here, is insufficient to distin- guish the case from Island Dock. 2. The delivery of precast concrete pipe With regard to the delivery of precast concrete pipe sec- tions used in the construction of manholes, as distin- guished from the delivery of ready-mixed concrete by means of the concrete-mobile, Respondent contends that the precise placing of precast sections by means of a boom truck constitutes "work to be done at the site of the con- struction" rather than, as maintained by the General Counsel and the Charging Party, the transportation and delivery to the jobsite of products manufactured elsewhere. While it may be argued that the placing of connecting sections of pipe in a trench or ditch to form a manhole, as an integral part of a sewer system, may literally be con- strued as work performed at a construction site, the issue is whether the services performed by ICE's drivers in lower- ing the separate sections into the ditch were not merely incidental to, and the final act of delivery tantamount to, the unloading of the pipe segments at the point of delivery. A distinction may perhaps be drawn between the delivery of liquid concrete, which "cannot be dumped on the ground at the construction site like other materials," 22 and the unloading of sections of precast concrete pipe, which theoretically, at least, could be left on the ground for later connection to the sewer line. It should be noted that the grievance filed by Respon- dent, on which the decision of the Joint Adjustment Board was based, charged that ICC had violated the Master La- bor Agreement by "us[ing] two non-dispatched drivers on two separate trucks in Bishop," and sought reimbursement for "[a]ll pay lost to deprived workmen on `A' Out of Work List." This manifested an obvious attempt to apply the pro- vision in question (PARAGRAPH J) to the transportation and delivery of precast concrete pipe (as well as ready-mix con- crete) to the jobsite. Instead of deciding the grievance as submitted, the Joint Adjustment Board held that ICC had violated the Master Labor Agreement by failing to require ICE to comply with the Agreement regarding jobsite work, consisting of "operating a boom truck in the precise plac- ing of pre-cast manholes on the jobsite . .. . Be that as it may, analysis of ICE's operations with re- gard to the transportation and delivery of precast sections of concrete pipe supports the conclusion that the lowering of these sections and the placing of segments in position into the trench by the operation of a boom constituted the final act of delivery rather than jobsite construction work. In the absence of any showing to the contrary, considering the size, bulk, and weight of the segments of concrete pipe (between 300 and 6,000 pounds) required for each man- hole, necessitating the use of boom trucks, cranes, stabiliz- ers, and specialized equipment, it is reasonable to assume that ICE was required under its arrangement with ICC to effect delivery of completed manholes to the jobsite in the 22 Id at 490-491 manner described. It can fairly be said the delivery of the manhole was not complete until the final segment, the cone, was lowered into place. All other work in connection with the installation of the manhole, including the guiding of the segments into position and the mortaring of the sec- tions to join them together, were performed by the con- struction worker in the trench. It is, therefore, found, on the basis of the foregoing, and upon the entire record, that the transportation and delivery by ICE of ready-mix concrete by means of the concrete- mobile and of precast concrete pipe for manholes at the Rock Creek Project constituted the transportation and de- livery of supplies, materials, or products, and not work to be performed at the site of construction, as permitted by the proviso to Section 8(e) of the Act.23 The record leaves no doubt that Respondent construed and intended PARAGRAPH J to apply to the transportation and delivery of materials and products to the jobsite. Thus, as has been noted earlier, Respondent filed a grievance against ICC, charging that it had violated the provision in question by using two nondispatched drivers for the trans- portation and delivery of products to the Rock Creek Proj- ect. While the decision of the Joint Adjustment Board re- lated this to the operation of a boom truck in the placing of precast manholes, it is evident that the decision, in effect, equated the transportation and delivery of materials, sup- plies, and products with jobsite work, and that Respondent intended to apply the clause in that manner. Moreover, since this decision construed and implemented the so- called union-signatory provision (PARAGRAPH J) to apply to the delivery of materials, supplies, and products, and not merely on-site work, the decision was itself violative of Sec- tion 8(e), and may not be relied on by Respondent as justi- fication for its conduct. Any contention that, inasmuch as the Master Labor Agreement, containing the union-signatory provision, was executed more than 6 months prior to the filing of the charge, this proceeding is barred by Section 10(b) of the Act is of no avail. The decision of the Joint Adjustment Board, issued January 9, 1975, less than 3 weeks before the filing of the charge, furnishes ample evidence that Respon- dent reaffirmed, renewed, and enforced the contract dur- ing the 10(b) period 24 23 Id See also Local 294, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America (Clemente D Stanton, d/b/a Rex- ford Sand and Gravel Co), 195 NLRB 378, 381-382 (1972), where the supplier's drivers delivered 22 loads of landfill at five or six different places, without again handling the fill See also Teamsters, Chauffeurs, Warehouse- men & Helpers Local Union No 631, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Reynolds Electrical and Engineering Co, Inc), 154 NLRB 67, 95, fn 45 (1965), "the fact that some portion of a continuous delivery takes place on the)obsite would not qualify that final segment as construction work " Cf International Union of Operat- ing Engineers, Local Union No 12, AFL-CIO (Robert E Fulton), 220 NLRB 530 (1975) 24 International Brotherhood of Boilermakers, (Bigge Drayage Company et al) supra at 281-282, fn 11, Retail Clerks Union Local 770, Chartered by Retail Clerks International Association, AFL-CIO (Hughes Markets, Inc), 218 NLRB 680 (1974). Although Respondent has not raised the issue of possible deferral to the decision of the Joint Adjustment Board, such defer- ral is not warranted here because the award itself constitutes conduct viola- tive of the Act As an interpretation of the agreement, the award constituted a part thereof " Far from resolving an unfair labor practice issue, the deter- Continued 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents, set forth in section III, above, occurring in connection with the operations of the Employer, described in section I, above, have a close, inti- mate, 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. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and con- clusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I make the following recom- mended: ORDER26 V. THE REMEDY Having found that Respondents have engaged in unfair labor practices within the meaning of Section 8(e) of the Act, it will be recommended that they cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. It will also be recom- mended that Respondents rescind and render null and void and of no effect the assessment as compensatory dam- ages by the Construction Teamsters Joint Adjustment Board, entered on January 9, 1975, against Inland Con- crete Construction, Inc.25 Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following: Conclusions of Law 1. Inland Concrete Enterprises, Inc., and Inland Con- crete Construction, Inc., both California corporations, are, and at all times material herein have been, employers en- gaged in commerce and in businesses affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Joint Council of Teamsters No. 42, and General Teamsters, Chauffeurs, Warehousemen & Helpers, Local 982, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are, and at all times material herein have been, labor organizations within the meaning of Section 2(5) of the Act. 3. By entering into, maintaining, and giving effect to PARAGRAPH J of the Master Labor Agreement between Un- derground Engineering Contractors Association, UECA herein, and Respondents, since on or about July 1, 1974, and by enforcing said provision against Inland Concrete Construction, Inc., ICC herein, so as to interfere with the delivery of ready-mix concrete, precast concrete pipe, or related products to the construction site, Respondents have engaged in unfair labor practices within the meaning of Section 8(e) of the Act. urination gave rise to the unfair labor practice In these circumstances the (Joint Adjustment Board] proceeding can in no sense be regarded as an alternative forum for resolving issues appropriate for Board determination " International Brotherhood of Boilermakers, etc (Bigge Drayage Company), supra, In. 2 25 See Associated General Contractors of California v N L R B, 514 F 2d 433 (C A 9), reversing Southern California Pipe Trades District Council No 16 (Associated General Contractors of California, Inc), 207 NLRB 698 (1973) The fact that ICC has refused to comply with, and that Respondents have not attempted to enforce, the award does not obviate the necessity for this recommendation It should be noted, incidentally, that under the award the "compensatory damages" are to be paid to the Construction Teamsters Se- curity Fund for Southern California rather than Respondents Joint Council of Teamsters No. 42, and General Team- sters, Chauffeurs, Warehousemen & Helpers, Local 982, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, their respective officers, agents, and representatives, shall: 1. Cease and desist from: (a) Entering into, maintaining, giving effect to, or en- forcing, PARAGRAPH J of the Master Labor Agreement be- tween Underground Engineering Contractors Association, UECA herein, and Respondents, executed on or about July 1, 1974, or any similar provision in any other collec- tive-bargaining agreement with ICC, or any other member of UECA, so as to interfere with the delivery of ready-mix concrete, precast concrete pipe, or related products to con- struction sites at which ICC or other UECA members are engaged. (b) Enforcing or giving effect to the assessment as com- pensatory damages by Construction Teamsters Joint Ad- justment Board, entered against Inland Concrete Construc- tion, Inc., on January 9, 1975. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Rescind and render null and void and of no effect the assessment as compensatory damages by the Construc- tion Teamsters Joint Adjustment Board against Inland Concrete Construction, Inc., entered on January 9, 1975. (b) Post at their respective business offices and meeting halls copies of the attached notice marked "Appendix." z Copies of said notice, on forms provided by the Regional Director for Region 31, after being signed by Respondents' respective duly authorized representatives, shall be posted immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Re- spondents to ensure that said notices are not altered, de- faced, or covered by any other material. (c) Furnish the Regional Director for Region 31 with signed copies of the attached notice marked "Appendix" for posting by the Employer, if it is willing, at its facility located at Riverside, California, in places where notices to 26 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 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 27 In the event the Board's 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" JOINT COUNCIL OF TEAMSTERS NO. 42 219 employees are customarily posted, to be maintained for a period of 60 consecutive days thereafter. Copies of said notice, to be provided by the Regional Director for Region 31, after being signed by the respective duly authorized representatives of Respondents as provided in paragraph 2(b) of this recommended order, shall be forthwith re- turned to the Regional Director for such posting. (d) Notify the Regional Director for Region 31, in writ- ing, within 20 days from the date of this Order, what steps Respondents have 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, give effect to, or enforce PARAGRAPH J of the Master Labor Agreement between Underground Engineering Contractors Asso- ciation and us, executed on or about July 1, 1974, or any similar provision in any collective-bargaining agreement with Inland Concrete Construction, Inc., or any other member of Underground Engineering Con- tractors Association, so as to interfere with the deliv- ery of ready-mix concrete, precast concrete pipe, or related products to construction sites at which Inland Concrete Construction, Inc., or other UECA members are engaged. WE WILL NOT enforce or give effect to the assessment of compensatory damages by Construction Teamsters Joint Adjustment Board, entered against Inland Con- crete Construction, Inc., on January 9, 1975. WE WILL rescind and render null and void and of no effect the assessment of compensatory damages by Construction Teamsters Joint Adjustment Board, en- tered against Inland Concrete Construction, Inc., on January 9, 1975. JOINT COUNCIL OF TEAMSTERS No. 42 GENERAL TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS, LOCAL 982, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA