Teamsters Local Union No. 89

TEAMSTERS LOCAL UNION NO. 89 General Drivers, Warehousemen and Helpers of America, Local Union No. 89, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America and Robert E. McKee, Inc. Case 9-CE-42 January 26, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE Upon a charge filed by Robert E. McKee, Inc. (herein called McKee), on January 30, 1979, and duly served on General Drivers, Warehousemen and Helpers of America, Local Union No. 89, af- filiated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America (herein called Respondent), the General Counsel of the National Labor Relations Board, acting through the Regional Director for Region 9, on April 3, 1979, issued and served on Respondent a complaint and notice of hearing. The complaint alleges that Respondent entered into, maintained, and gave effect to an agreement containing subcon- tracting clauses which violate Section 8(e) of the National Labor Relations Act, as amended. On April 6, 1979, Respondent duly filed an answer to the complaint in which it denied the commission of any unfair labor practices. Thereafter, on April 30, 1979, Respondent, McKee, and counsel for the General Counsel ap- peared before Administrative Law Judge Robert C. Batson and requested that the record be opened for the purpose of receiving an all-party stipulation of facts and exhibits. The parties agreed that the charge, the complaint and notice of hearing, the answer to the complaint, the stipulation of facts read into the record, and the exhibits received by the Administrative Law Judge constitute the entire record in this case and that no oral testimony is necessary or desired by any of the parties. The par- ties further stipulated that they waive a hearing before an administrative law judge, the making of findings of fact and conclusions of law by an ad- ministrative law judge, and the issuance of an ad- ministrative law judge's decision, and desire to submit this case directly to the Board for findings of fact, conclusions of law, and a Decision and Order. On July 24, 1979, the Board issued an order ap- proving the stipulation and transferring the pro- ceeding to the Board. In the Order, a date was set for the filing of briefs, and the parties were specifi- cally requested to address the issue of whether the Truck Drivers Agreement (herein called TDA) submitted into the record as General Counsel's Ex- 254 NLRB No. 93 hibit 2, contains self-enforcement provisions which, when read in conjunction with the disputed articles 1.6, 1.6(A), and 1.16 of the agreement, remove said articles from whatever protection they might oth- erwise enjoy under the construction industry provi- so to Section 8(e). Thereafter, Respondent, McKee, and the General Counsel filed briefs in support of their positions. 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 entire record herein as stipulated by the parties and hereby makes the following findings and conclusions: 1. THE BUSINESS OF THE EMPLOYER McKee is a Nevada corporation engaged in the business of general construction and construction contracting in various States of the United States including its Audubon Plaza location at Louisville, Kentucky, the only location involved in this pro- ceeding. From April 1978 to April 1979, a representative period, McKee purchased and received goods and materials valued in excess of $50,000 which were shipped to its Louisville, Kentucky, location direct- ly from points outside the Commonwealth of Ken- tucky. The parties stipulated, and we find, that McKee is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE ABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that Respon- dent is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. The Stipulated Facts Respondent and the Construction Employer's Association, Inc. (herein called CEA), entered into a collective-bargaining agreement known as the Truck Drivers Agreement (TDA), effective from June 1, 1977, to midnight May 31, 1980. McKee is a party to the TDA by virtue of its membership in CEA. The TDA contains the following provisions entitled article 1.6, 1.6(A), and 1.16, and article 4.1 and 4.2: 1.6: The operations covered hereby are all construction operations, including alteration, remodeling, maintenance, repairs and wrecking undertaken by members of the ASSOCI- ATION, and the delivery by the ASSOCI- 783 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ATION members on the site of work of build- ing materials.... 1.6(A): The Employer agrees not to subcon- tract any work on the jobsite, which is the ju- risdiction of the Union, unless the contractor to whom the work is subcontracted, has signed agreement or agrees to sign the agreement before starting the job. * * * * * 1.16: On all construction projects where ma- terial is delivered directly to the jobsite, the loading, unloading and distribution of materials and the handling of tools and materials to the first drop or point of delivery is the recog- nized jurisdiction of the Teamsters. * * * * * 4.1: The ASSOCIATION shall appoint a Standing Committee of two (2) persons, and the UNION shall appoint a Standing Commit- tee of two (2) persons to promote the oper- ation of this Agreement. 4.2: Without first going through the griev- ance procedure as outlined herein, there shall be no stoppage of work on account of any and all disputes of every type and character, which may arise between the parties hereto (save the two (2) exceptions reserved below).... When the Joint Arbitration Committee or impartial Arbitrator renders a grievance award under this Article, there shall be stated in the award a time limit for the losing party to comply fully with the Award.... The losing party shall have the right . . . to contest such Award . . . but, if the losing party does not do so . . . then the UNION shall have the right to enforce the Award by resort to eco- nomic recourse against the non-complying EMPLOYER . Exception 1. If the dispute involves the ju- risdiction of the UNION, with the jurisdiction of any other Union or Unions, then the dispute shall be resolved according to law, provided, however, that an opportunity be first given to the UNION to attempt to settle the jurisdic- tional dispute with the other Union within ten (10) days from date such dispute arose. Exception 2. If the dispute be one of inter- pretation of Statute Law, then such dispute shall be resolved according to law. McKee and various subcontractors are engaged in construction work at the Audubon Plaza jobsite (herein called the jobsite or the site) in Louisville, Kentucky. Among the subcontractors are Western Dry Wall Company (herein called Western) and Abram Roofing Company (herein called Abram). Neither Western nor Abram has any bargaining re- lationship with Respondent. During the period since October 1978, Western and Abram have engaged and continue to engage their own employees to make deliveries of materi- als, in their own trucks, from their own ware- houses located approximately 3 to 5 miles from the jobsite directly to drop points on the site. Similar deliveries are made of crushed stone and other ma- terials from gravel pits off the jobsite to drop points on the site. In some instances, the employees making the deliveries have been working at the jobsite on the day of the delivery and have taken trucks from the site, proceeded to the respective warehouses, gravel pits, or similar offsite locations, picked up the necessary materials, and returned to the jobsite. In other instances, the deliveries have been made by employees working at the ware- houses, who hauled the necessary materials in trucks from the warehouses to drop points at the jobsite. In addition, both Western and Abram have en- gaged and continue to engage their own employees to move material from one point on the jobsite to other points on the site. It is undisputed that the employees of Western and Abram, who are not represented by Respondent, have historically per- formed the above-described work. On November 7 and 18, 1978, and on February 2, 1979, Respondent, through its member James Richardson, filed grievances concerning deliveries made by the employees of McKee's subcontractors including Western and Abram. The grievances assert that, under articles 1.6, 1.6(A), and 1.16 of the TDA, all of the above-described work present- ly performed by the subcontractors' employees who are not represented by Respondent must be performed by members of Respondent. Respondent has requested and continues to request that these grievances be submitted to arbitration pursuant to the grievance procedure set forth in the TDA. On February 26, 1979, the grievance committee agreed to withhold a final decision on the grievances pending a decision by the Board in the instant case. B. Contentions of the Parties The General Counsel contends that the subcon- tracting provisions in the TDA violate Section 8(e) because they have a secondary objective, and, as such, are presumptively unlawful unless privileged 784 TEAMSTERS LOCAL UNION NO. 89 by the construction industry proviso to Section 8(e). The General Counsel further contends that the provisions are not privileged by the proviso be- cause they appear on their face to include work done off the construction site, which falls outside the purview of the proviso. In addition, the Gener- al Counsel contends that, even if the provisions on their face do not include off-site work, it is clear that Respondent seeks to apply the provisions to such work. Finally, the General Counsel asserts that article 4.2 of the TDA contains "self-help" provisions which remove the subcontracting provi- sions from the protection of the proviso. The con- tentions of the Charging Party are essentially the same as those of the General Counsel. Respondent contends that the subcontracting provisions as applied by Respondent are primary in that they seek to retain work for unit employees and that the provisions are therefore not proscribed by Section 8(e). Respondent further contends that under the Board's decision in Woelke and Romero Framing, Inc., 2 the subcontracting provisions are protected by the construction industry proviso to Section 8(e) because they apply to work on the construction site and are in the context of a collec- tive-bargaining relationship. In this connection, Re- spondent argues that the "self-help" provisions in the TDA do not apply to the subcontracting provi- sions and do not, therefore, remove said provisions from the protection of the construction industry proviso. Finally, Respondent asserts that its use of the contractual grievance procedure is not prohibit- ed by Section 8(e). C. Discussion and Conclusions The subcontracting provisions at issue herein are contained in the TDA which became effective on June 1, 1977, a date more than 6 months prior to the filing of the charge in the instant case on Janu- ary 30, 1979. In November 1978, a date within the 6-month period prior to the filing of the charge, Respondent, through its member James Richard- son, filed grievances relating to the subcontracting provisions. Section 8(e) of the Act3 forbids only the "enter- ing into" of an agreement whereby the employer I For ease of reference. the contentions of the General Counsel and the Charging Parly are hereafter referred to as hose of the General Counsel 2 Carpenters Local No. 944. United Brotherhood of Carpenters and Join- ers of America, AFL-CIO and Carpenters Local No, 235, United Brother- hood of Carpenters and Joiners f' 4terica, .AFL-CI (Woelke & Romero Framing, Inc.), 239 NLRBI 241 (1978X), enforcement denied in relevant part 609 F 2d 1341 (9th Cir. 1980). Motion for rehearing en hane granted. 105 LRRM 2496 (August 29. 1980). a Sec. 8(e) of the Act provides in relevant part It shall he a unfair laxbor practice for any labor organizalion and any employer to enter into any contract or agreement. express or im- plied, whereby such employer ceases or refrains or agrees o cease or refrain from handling, using, selling. transporting r others ise agrees, inter alia, to cease doing business with an- other person. The Board has found that seeking to enforce such an agreement constitutes "entering into" within the meaning of Section 8(e). 4 We find that Respondent in the instant case, by filing griev- ances, sought to enforce the agreement within the 10(b) period, thereby bringing the agreement within the purview of Section 8(e). It is well settled that contract clauses which are limited to primary considerations, such as the pres- ervation or protection of the traditional work of employees in the bargaining units represented by a labor organization, are not proscribed by Section 8(e) of the Act. The initial issue to be resolved here, therefore, is whether the thrust of the disputed clauses is prima- ry and hence lawful, or whether it is secondary and, accordingly, unlawful. In approaching such an issue the Supreme Court has stated: The determination of whether the [chal- lenged contract provision] violated [Section] 8(e) and [Section] 8(b)(4)(B) cannot be made without an inquiry into whether, under all the surrounding circumstances, the Union's objec- tive was preservation of work for [the con- tracting employer's] employees, or whether the agreements . . . were tactically calculated to satisfy union objectives elsewhere. . .. The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer vis-a-vis his own employees. 6 In Woelke & Romero Framing, Inc., supra, the Board applied its analysis of the primary-secondary clause distinction as articulated in California Dump Truck Owners Association : Section 8(e) of the Act makes it an unfair labor practice for an employer and a union to dealing in any of the products of any other employer, or Io cease doing business with any other person, and any contract or agreemlcenl entered into hereltofore or hereafter containing such an agreement shall he to such extent unenforceable and void Provided. That noth- ing in this subsection (e) shall apply to an agreement between a labor organizationr and an employer in the construction ndustry relatng o the contracting or subconracting of work to he done at the it' if the construction. alteraltion, partling or repair of a building, struiC lure, or other wosrk 4 ll! and Relaulranl Ep/l,,r'5, anrd Bac,lndcrn' I ion, s. 51 53i (4nge/u 4uto Park, Inc. and Elnic Corrpsoralion d ha I ;n,,rgo lll Bnwll, 237 NLRH 12(1 (1978). .'allotna/l Woodwork anu/tacturng .-lssociaton. a \ L.R B. t3.n U S 612 ( 1067). s Id al 644-645 * Iueais. Ifsrhwu. Building ltnd C onrnctiron Iu'arltcrn Cornrmmnirl fr Northern (aliornia, Irlnrnational Brothelrho io liam.ltcr. C'haujJiur. W'arehoosemen ad lI0per o 4inri-sa l al W(ah/iJ)ria [)urip ru,l O()v'rscr. .lojiaititn). 22' NIRB 26', 22 l'th) hen'sMember Fanning and Memnlher enkins lissenlng in part) 785 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enter into an agreement, express or implied, whereby the employer agrees to cease dealing in the products of any other employer or to cease doing business with any other person. A literal construction of this section suggests the illegality of any agreement which results in preventing the employer from establishing a business relationship with another employer, or which causes him to break off a relationship already established. The section, however, has not been construed to outlaw all agreements which produce such results. Contract clauses which purport to limit sub- contracting to employers who are signatories to union contracts, so-called union signatory clauses, and contract clauses which purport to acquire for bargaining unit employees work which has traditionally been performed by em- ployees of other employers, so-called work ac- quisition clauses, have been held to violate the Act. Such clauses are viewed as not being de- signed to protect the wages and job opportuni- ties of unit employees covered by the contract, but as directed at furthering general union ob- jectives and undertaking to regulate the labor policies of other employers. Absent a direct re- lationship to protection of the work of unit employees, such clauses are considered as having an unlawful secondary effect and are proscribed by Section 8(b)(4) and (e). On the other hand, however, contract clauses whose basic aims are to limit been per- formed by them, or in some instances to recap- ture work regarded as fairly claimable, so- called unit protection clauses, and contract clauses designed to limit subcontracting of unit work to employers who maintain the same standards of employment, thus minimizing the economic incentive to subcontract, so-called union standard clauses, have been held to be lawful. The underlying rationale for the lawful character of unit protection and union stan- dard clauses is that the union has a primary in- terest in preserving unit work for unit employ- ees and to insure that negotiated standards will not be undermined. Respondent contends that its subcontracting clause is a lawful work preservation clause. We dis- agree. Respondent's subcontracting clause, article 1.6(A) of the TDA, requires the Employer to agree "not to subcontract any work on the jobsite, which is the jurisdiction of the Union, unless the contrac- tor to whom the work is subcontracted, has signed agreement or agrees to sign the agreement before starting the job." This clause goes beyond the pro- tection of traditional bargaining unit work for bar- gaining unit employees, and is a union signatory clause of the type the Board has consistently found to be secondary in nature because it is not con- cerned with the labor relations of the contracting employer-McKee here-vis-a-vis its employees, but with the labor relations of other employers or firms with whom McKee might do business.8 Ac- cordingly, we find that article 1.6(A) is a union sig- natory clause which is proscribed by Section 8(e) of the Act, unless it is saved by that section's con- struction industry proviso. In Woelke & Romero Framing, Inc., supra, we found, inter alia, that the construction industry pro- viso, as we construed the Supreme Court's Connell decisions concerning the proviso, permits similar union signatory subcontracting clauses which, as here, are in the context of a collective-bargaining relationship and relate only to construction work performed on the jobsite. However, the General Counsel contends that the clauses at issue herein, although in the context of a collective-bargaining relationship, do not come within the scope of the proviso because, on their face, they appear to cover work which is not performed on the con- struction jobsite. In support of his contention the General Counsel asserts that article 1.16 apparently modified both article 1.6 and 1.6(A). Article 1.6 of the TDA describes the scope of the operations covered by the contract and pro- vides in part that "The operations covered hereby are all construction operations, including alteration, remodeling, maintenance, repairs and wrecking un- dertaken by members of the ASSOCIATION, and the delivery by the ASSOCIATION members on the site of work of building materials." Article 1.6(A), the subcontracting clause, provides in part that "The Employer agrees not to subcontract any work on the jobsite, which is the jurisdiction of the Union .... " Article 1.16 describes the Union's ju- risdiction and provides in part that "the loading, unloading and distribution of materials and the han- dling of tools and materials to the first drop or point of delivery is the recognized jurisdiction of the Teamsters." It has long been held that the delivery of materi- als to a construction site does not constitute "onsite" work.10 Thus a subcontracting clause s Woelke & Romnero Framing. Inc.. supra, 239 NLRB at 247. Connell Construction Co., Inc v. Plumber & Steamfitters ocal Union ,o I0. etc., 421 I.S 616 (1975) "' International Brotherhood of l'eamsters Chauffiurs, Warehousemen and IHelpers of America. ocal 294 (Island Doc(k Lumber. Inc ) 145 NILRB 484 (63); General lamtrers. Chauffeurs, Warehousemen and Ielper. Local 982, itc., I K, Barker rucking Co). 181 NRB 515. 517 518 (1970), ed, sub nom. Joint Council of eamster. Noi. 42. et a, 450 2d 1322 (D.C. Cir 1971); Local Union 'o. 282. aufihiated ith the Iniernation, al Brotherhood of leaumnrs. (haufj]ur. Warehousemen and elpers of Amlerla (D) IFortunato. Inc l 197 NLRFB 673 (1972). 786 TEAMSTERS LOCAL UNION NO. 89 which purports to include the delivery of materials to the jobsite enjoys no protection under the con- struction industry proviso to Section 8(e). Article 1.6(A) limits the subcontracting of work to work "on the jobsite which is the jurisdiction of the union." The phrase "on the jobsite" supports the conclusion that the limitations on subcontract- ing are restricted to "onsite work" and therefore, within the proviso so interpreted, article 1.6(A) is lawful on its face. However, the phrase "on the jobsite" appears to be modified by the phrase "which is the jurisdiction of the Union," and if the latter phrase has reference to article 1.16, which defines the union's jurisdiction as including the de- livery and handling of tools and materials to the first drop or point of delivery, article 1.6(A) may be interpreted as including the delivery of materials to the jobsite. So read, article 1.6(A) arguably in- cludes work which the Board has held is offsite work, and thus the article would not enjoy the pro- tection of the proviso. Consequently, since article 1.6(A) is arguably subject to two interpretations, one enjoying the protection of the proviso and the other outside its protection, we find the clause to be ambiguous. In J. K. Barker,' we held that if a clause is am- biguous the Board will not presume unlawfulness, but will consider extrinsic evidence to determine whether the clause was intended to be administered in a lawful or unlawful manner. Extrinsic evidence necessary to show unlawful administration of an ambiguous clause must be based on mutual consent or acquiescence of the parties to the contract. 12 In the instant case, by filing grievances through one of its members urging that the subcontracting clause covers what we find is offsite work, Respon- dent is clearly asserting an unlawful interpretation of the clause. " McKee, however, has not agreed to this interpretation. Rather, as evidenced by its assertion of a contrary interpretation herein and during the prearbitration proceeding, it has disput- ed Respondent's interpretation of the clause. Thus, the requisite mutual consent or acquiescence is not present here. We therefore conclude that Respon- I J. K. Barker Trucking Co.. supra, 181 NLRB at 517 *2 See General I7amsters Local 386. Internaional Brotherhood of leamrn- srers. Chauffeurs. Warehousemen and IHelpers of.4merca (Construction Ma- terials Trucking. Inc.), 198 NLRB 1038 (1972). where the Board adopted the following language of the U.S. Court of Appeals for the District of Columbia: To conclude that a contract falling within the letter of Section 8(e) properly falls within its prohibition there must he either a finding that both paric.s understood and acquiesced i a secondary sobject for the term. or a finding that secondary consequences within Sectlion 8(e)s intendment would probably flow from the clause . [Ent- phasis supplied.] 13 There is no other eidence with respect to how the parties intended the clause to be administered dent's attempt to compel McKee to accede to its interpretation provides no basis for finding that the contract clause in issue violates Section 8(e). Thus, we cannot find that the contract unlawfully ex- tends the prohibitions against subcontracting beyond jobsite work. We next turn to the self-enforcement issue.14 At issue is whether article 4.2 of the TDA contains "self-help" provisions which intertwine with the subcontracting clause causing it to lose the afore- mentioned protection of the proviso. Article 4 of the TDA outlines the grievance and arbitration procedure and at 4.2 provides, inter alia, that "the UNION shall have the right to enforce the award by resort to economic recourse against the non-complying EMPLOYER." Thus, under the contract an arbitration award may be enforced by the union by resort to economic self-help. In addi- tion, article 4 contains two exceptions to the union's right to seek economic recourse: Exception I, which is applicable to the resolution of jurisdic- tional disputes with other unions, and Exception 2, which is applicable to the resolution of disputes re- quiring statutory interpretation. Although the proviso to Section 8(e) makes lawful certain secondary clauses in the construction industry, the contract cannot provide that they be enforced by resort to economic self-help. The main focus of our analysis of self-help clauses and their legality has been to determine the relationship between the clause purporting to authorize eco- nomic action and any secondary clauses limiting the subcontracting of work. In other words, sub- contracting clauses and clauses authorizing the union to engage in economic action independent of one another, i.e., when a union's right to engage in economic action specifically excludes a subcon- tracting clause from its application, do not violate Section 8(e). If the Board determines that the par- ties intended that the economic enforcement provi- sions apply to the subcontracting clauses, violations of Section 8(e) will be found. Thus, the Board has found that "self-help" clauses remove otherwise construction industry "proviso-protected agree- ments from the scope of that proviso even though 14 Though this issue was not specifically alleged in the complaint. aS noted above, the Board in its order approving the stipulation requested the parties to address it ' See Ios 4ngeles Building and Construction Trades Council: and Local Union .Vo. 1497. niled Broherhod of Carpenters and Joiners of America (Donald Schriver, Inc. (Sullivan-Kelleyv & Associates, 239 NLRB 24. 270 (1978}; International l/nion of Operating Engineers. Local No 701. AFL- ('10. Oregon-Columbhia Chapter, lhe .4ssciated General Contractor of 4.rlcriia. Inc. (PUaclic N:orthWes ( Chalpter of the .4s.sociated Budder & Con- tractors. Inc ), 239 NI.RI 274, 277-278 (978), enlforcement denied in rel- esant part 0)9 F2d 1341 (9th Cir. 198(): Muskegon Bricklavers LUnion #5 Rricklacrs. Ma.son and Pluastrers International U'nion of .4,tnrica (F1.- (10) (raler Mulskegon (,neral (tlrarctori 4siseiation). 152 N R 3) (19t5) 787 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the self-help and subcontracting provisions are found in different articles of the agreement "16 The language of article 4.2 explicitly confers upon Respondent the right to resort to economic recourse in order to enforce an arbitration award, clearly a self-help provision. 7 Respondent argues, however, that the matter at issue involves a ques- tion of statutory interpretation and as such is spe- cifically excepted from the self-help provisions under Exception 2; and that its claim is more in the nature of a jurisdictional dispute, and as such falls within Exception 1. While the exact meaning of the phrase "interpretation of Statute Law" in the ex- ception is subject to various meaning, Respondent has not pointed to any possible reading of the clause, and we see none, which would have the effect of making the self-help provision inapplicable to an award made by the arbitrator. With respect to the jurisdictional disputes clause, we fail to see how that clause has an application here. In any event, such generalized savings clauses not specifi- cally addressed to self-enforcement of agreements protected by the construction industry proviso in Section 8(e) have not been found to be effective.' 8 Therefore, we find that the self-enforcement provi- sions of the contract serve to remove the subcon- tracting clause from the protection it would other- wise enjoy under the proviso to Section 8(e). Ac- cordingly, we find that article 4.2 of the TDA vio- lates Section 8(e) of the Act insofar as it applies to article 1.6(A) of the collective-bargaining agree- ment. THE REMEDY Having found that Respondent has engaged in an unfair labor practice, we shall order it to cease and desist therefrom and to take certain affirmative action to effectuate the purposes of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, we make the following: CONCLUSIONS OF LAW 1. Jurisdiction is properly asserted in this pro- ceeding. 2. The Charging Party, Robert E. McKee, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. '8 International Union of Operating EIngineers. Local 'o. 7()1. A4 L- CIO: Oregon-Columbia Chapter, he Associated General Contractors of America. Inc. (Pacific Northwest Chplter of the Asocurated Builders & Con- tractors. Inc.). supra at 277, 7 Id. 1s he Essex County and icinity IDistrict Council of Carpenters and Millwrights. United Brotherhood of Carpenters and Joiners of America, AFL-CIO (The Associated Contractors of Esvex Cournty. Ine.), 141 NLRIB 858, 869 (1963) 3. The Respondent, General Drivers, Warehou- semen and Helpers of America, Local Union No. 89, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 4. By entering into, maintaining, and giving effect to self-help provisions applicable to article 1.6(A) of its 1977-80 collective-bargaining agree- ment with Robert E. McKee, Inc., General Driv- ers, Warehousemen & Helpers, Local Union No. 89, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, has violated Section 8(e) of the Act. 5. The above unfair labor practice is an unfair labor practice affecting commerce and the free flow of commerce within the meaning 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 Re- lations Board hereby orders that the Respondent, General Drivers, Warehousemen and Helpers, Local Union No. 89, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Louisville, Ken- tucky, its officers, agents, and representatives, shall: 1. Cease and desist from entering into, maintain- ing, giving effect to, or enforcing the self-help por- tion of article 4.2, insofar as it is applied to the sub- contracting clause, article 1.6(A), found in Respon- dent's collective-bargaining agreement, to the extent found unlawful herein. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its business offices and meeting halls copies of the attached notice marked "Appen- dix."' 9 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by an authorized representative of Re- spondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this ' I h event that this Order is enforced by a Judgment of a United Slates Court of Appeals, the words in the notice reading "Polsted by )rder ofi Ihc Natioinal 1Ishor Relatlnils Itoard" shall read "Posted Pursu- ant to a Judgmlent of' the Ulited States Court of Appeals nforcillg n Order of1 the Nationali I hor Relations Board.' 788 TEAMSTERS LOCAL UNION NO. 89 Order, what steps the Respondent has taken to comply herewith. CHAIRMAN FANNING, concurring in part and dis- senting in part: Unlike my colleagues, I would find that article 1.6(A), the subcontracting clause, does not extend the prohibitions against subcontracting beyond job- site work, and, thus, I would find it lawful on its face.20 The language of the subcontracting clause is clear and unambiguous. While article 1.6 broadly describes the scope of operations covered by the TDA, and article 1.16 describes the Union's juris- diction, article 1.6(A) is limited in its application to onsite work. Thus, 1.6 and 1.16 describe what is covered by the contract and set forth the limits of the Union's jurisdiction while 1.6(A) sets forth that part of the work, namely, the onsite work, which is subject to the limitation on subcontracting.21 Ac- cordingly, I would find that article 1.6(A) is a union signatory clause, in the context of a collec- tive-bargaining relationship, which on its face limits subcontracting on the jobsite and therefore enjoys the protection of the construction industry proviso to Section 8(e). I would therefore find that Respon- dent did not violate that section of the Act by maintaining the subcontracting clause in question. As for Respondent's attempt through grievances to compel McKee to accede to an interpretation and construction of the subcontracting clause beyond its literal meaning, namely, to extend the clause's coverage to offsite work, I would find that such conduct amounted, at most, to an attempt to compel McKee to enter into a new and different broadened version of the clause. Thus Respon- dent's conduct may be characterized as a proposed modification of the TDA but in the absence of agreement or acquiescence by McKee there was no "entering into" within the meaning of Section 8(e). In these circumstances, I would find that there is no basis for concluding that Respondent's filing the above grievances amounted to a violation of Sec- tion 8(e).22 To this point neither my colleagues nor I would find a violation, albeit for different reasons. They, however, go on to find that article 4.2 of the TDA 20 Were I to agree with my colleagues that the clause '.as ambiguous I would still reach the same result herein since I agree with them, for the reasons they state, that there is no basis for finding that art I th(AI .iolat- ed Sec. 8(e) 2 I recognize that the phrase "shlch is the jurisdiction of the Union" appears after the phrase "work on the jobsite However. I conclude hat in the context ir which the phrase appears. namel. in reference to "on the jobsite," this phrase should be read a, " hich Is In the jurisdiction of the Union" Consequently. unlike mn col leaguies I do not find the suh- contracting clause ambiguouL 22 Philadelphia Marinc rade .lslocaium,. 151 N RB 1446 ( 1905 Prc Milk Asociatwn Sidner anzclr & Sons. Inc, 141 NI.R 1237 (19h63) enfd. 335 F 2d 320 (1964) constitutes a self-enforcement provision which re- moves the subcontracting clause, article 1.6(A), from the protection of the 8(e) proviso, and that, therefore, article 4.2 violates Section 8(e) insofar as it applies to article 1.6(A). I disagree. In my dissenting opinion in Muskegon Bricklayers Union #5, Bricklayers, Masons and Plasterers Inter- national Union of America (AFL-CIO) (Greater Muskegon General Contractors Association), 152 NLRB 360 (1965), I took the position that the mere existence of self-enforcement features in a contract does not make the construction industry proviso in- applicable to the contract and thus I would not find a violation based on the existence of such a clause. I still adhere to that view. See my dissent in Los Angeles Building and Construction Trades Coun- cil, and Local Union No. 1497, United Brotherhood of Carpenters and Joiners of America (Donald Schriver, Inc.) (Sullivan-Kelley & Associates), 239 NLRB 264, 270. International Union of Operating Engineers, Local No. 701, AFL-CIO, Oregon-Co- lumbia Chapter, The Associated General Contractors of America, Inc. (Pacific Northwest Chapter of the Associated Builders & Contractors, Inc.), 239 NLRB 274, 279 (1978). Accordingly, I would not find that article 1.6(A) is outside the protection of the 8(e) proviso merely because of article 4.2, even assum- ing that the latter article is a self-enforcement pro- vision as found by my colleagues. Accordingly, I dissent from that finding and, since I would find that Respondent has not violated the Act as charged, I would dismiss the complaint in its en- tirety. 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 that portion of article 4.2 permitting the Union "to enforce the [Arbitra- tion] Award by resort to economic recourse against the non-complying EMPLOYER" to the extent that such action is authorized to maintain, to give effect to, or enforce the sub- contracting clause, article 1.6(A), of the collec- tive-bargaining agreement between Robert E. McKee, Inc., and General Drivers, Warehou- semen and Helpers, Local Union No. 89, affili- ated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, and to the extent that article 4.2 789 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violates Section 8(e) of the National Labor Re- lations Act. GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION No. 89, AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA