Construction and General Laborers Union, Local 185

CONSTRUCTION AND GENERAL LABORERS UNION, LOCAL 185 Construction and General Laborers Union, Local 185, Laborers International Union of North America, AFL-CIO; Cement Masons Local 582, Operative Plasterers and Cement Masons Inter- national Association, AFL-CIO and West-Cal Construction, Inc. Cases 20-CC-2157 and 20- CC-2158 March 18, 1981 DECISION AND ORDER On September 26, 1980, Administrative Law Judge David P. McDonald issued the attached De- cision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Respondents have filed a motion to strike the Gen- eral Counsel's exceptions and brief and the General Counsel filed a response requesting that Respond- ents' motion be denied.' 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, find- ings,2 and conclusions of the Administrative Law Judge and to substitute for the Administrative Law Judge's recommended Order, the following Order and notices. 3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that: A. Respondent Construction and General Labor- ers Union, Local 185, Laborers International Union of North America, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Picketing West-Cal Construction, Inc., for the purpose of requiring West-Cal to enter into the 1977-80 Laborers' Master Agreement governing subcontracting of construction site work. ' Respondents' motion to strike the General Counsel's exceptions and brief is predicated on the grounds that they are defective in both form and specificity required by Sec. 102.46(b) and (c) of the Board's Rules and Regulations. We find no merit in Respondent's motion and hereby deny it. 2 In the absence of exceptions, we adopt, proforma, the Administrative Law Judge's findings and conclusions that Respondent Laborers violated Sec. 8(b)(4A) and 8(b4)(XB) and that Respondent Cement Masons vio- lated Sec. 8(bX4XB). The General Counsel points out, correctly, that the Administrative Law Judge erroneously stated that the complaint alleged a violation of Sec. 8(e). Moreover, we note that the Administrative Law Judge did not find, in his Decision or his Conclusions of Law, that either Respondent violated Sec. 8(e). Hence, we shall eliminate par. A(lXa) from the Ad- ministrative Law Judge's recommended order. ' We find merit in certain exceptions filed by the General Counsel to the Administrative Law Judge's recommended Order and notice. These exceptions are directed to conforming the Order to the Administrative Law Judge's findings and conclusions and the issuance of separate no- tices. Hence, we shall conform the Order and notices to the Administra- tive Law Judge's substantive legal findings to which no exceptions have been filed. See fn. 2, supra. 255 NLRB No. 3 (b) Picketing West-Cal's Gate 2 (Halyard Street) in Sacramento so long as that gate is reserved for the exclusive use of secondary or neutral employ- ers or persons and their employees, with an object of forcing or requiring West-Cal's neutral subcon- tractors to cease doing business with West-Cal. 2. Take the following affirmative action: (a) Post at its business office and meeting halls copies of the attached notice marked "Appendix A." 4 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by an authorized representative of Re- spondent Laborers Union, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Laborers Union to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and deliver to the Regional Director for Region 20 sufficient copies of said notice, to be fur- nished by the Regional Director, for posting at the premises of West-Cal, if willing. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. B. Respondent Cement Masons Local 582, Oper- ative Plasterers and Cement Masons International Association, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from picketing West-Cal's Gate 2 (Halyard Street) in Sacramento, so long as that gate is reserved for the exclusive use of sec- ondary or neutral employers or persons and their employees, with an object of forcing or requiring such neutral subcontractors to cease doing business with West-Cal in order to force or require West- Cal to cease doing business with G & L Concrete. 2. Take the following affirmative action: (a) Post at its business offices and meeting halls copies of the attached notice marked "Appendix B."5 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by an authorized representative of Re- spondent Cement Masons Union, shall be posted by it immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- 4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 5 See fn. 4, supra. 53 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tices to members are customarily posted. Reason- able steps shall be taken by Respondent Cement Masons Union to insure that said notices are not al- tered, defaced, or covered by any other material. (b) Sign and deliver to the Regional Director for Region 20 sufficient copies of said notice, to be fur- nished by the Regional Director, for posting at the premises of West-Cal, if willing. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX A NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten, coerce, or restrain West-Cal Construction, Inc., by picketing at the construction site on the property located at Starboard Street and Halyard Drive, Sacra- mento, California, where an object thereof is to force or require West-Cal to enter into an agreement which is prohibited by Section 8(a) of the Act, as amended. WE WILL NOT, by picketing or otherwise, induce or encourage any employee of any person engaged in an industry affecting com- merce to refuse in the course of his employ- ment to work or perform services where an object of such union conduct is to force or re- quire any person to cease doing business with West-Cal Construction, Inc., at the construc- tion site on the property located at Starboard Street and Halyard Drive, Sacramento, Cali- fornia. CONSTRUCTION AND GENERAL LA- BORERS UNION, LOCAL 185, LABOR- ERS INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT, by picketing or otherwise, induce or encourage any employee of any person engaged in an industry affecting com- merce to refuse in the course of his employ- ment to work or perform services where an object of such union conduct is to force or re- quire any person to cease doing business with West-Cal Construction, Inc., or require West- Cal to cease doing business with G & L Con- crete, at the construction site on the property located at Starboard Street and Halyard Drive, Sacramento, California. CEMENT MASONS LOCAL 582, OPER- ATIVE PLASTERERS AND CEMENT MASONS INTERNATIONAL ASSOCI- ATION, AFL-CIO DECISION STATEMENT OF THE CASE DAVID P. MCDONALD, Administrative Law Judge: This case was heard before me at Sacramento, Califor- nia, on November 1, 1979, pursuant to an order consoli- dating cases, consolidated complaint and notice of hear- ing issued on July 10, 1979, by the Regional Director of the National Labor Relations Board for Region 20. The complaint is based upon original charges filed on June 26, 1979, and July 9, 1979,' by West-Cal Construction, Inc., hereinafter called West-Cal. The complaint alleges violations of Sections 8(e), 8(b)(4)(i) and (ii)(A), and 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended, hereinafter called the Act. Counsel for Re- spondents filed answers on behalf of his clients, Con- struction and General Laborers Union, Local 185, La- borers International Union of North America, AFL- CIO, hereinafter called Laborers Union; and Cement Masons Local 582, Operative Plasterers and Cement Masons International Association, AFL-CIO, hereinafter called Cement Masons Union, on July 12, 1979. All parties were afforded full opportunity to examine and cross-examine witnesses, to introduce relevant evi- dence, and to present oral argument.2 The counsel for General Counsel and West-Cal timely filed their briefs. Upon the entire record in this case, the briefs of the parties, and my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER West-Cal, a California corporation with an office and place of business in Hacienda Heights, California, has been engaged in the building and construction industry as a general contractor. During the past calendar year, West-Cal, in the course and conduct of its business oper- ations, received gross revenues in excess of $5 million and purchased and received in California products, I Unless otherwise specified all dates herein refer to the calendar year of 1979. 2 Although counsel for Respondents had entered his appearance on behalf of his clients, Laborers Union and Cement Masons Union, neither he nor his clients appeared at the hearing. Counsel did not request a con- tinuance nor did he provide an explanation as to his or his clients' ab- sence. After waiting 2 hours, the hearing began at II a.m. 54 CONSTRUCTION AND GENERAL LABORERS UNION, LOCAL 185 goods, and materials valued in excess of $50,000 directly from suppliers located outside the State of California. Upon the foregoing, I find that at all times material herein West-Cal has been an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATIONS INVOLVED Respondents, Laborers Union and Cement Masons Union, each admit individually, and I find that, at all times material herein, they were labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issues in this proceeding are whether La- borers Union and Cement Masons Union violated Sec- tion 8(b)(4)(i) and (ii)(A), and/or (B) of the Act. Specifi- cally, the question raised by the complaint is whether the picketing by Respondent Laborers in support of its demand that West-Cal entered into a memorandum agreement binding it to the Laborers 1977-80 Master Agreement was with the object of forcing West-Cal to enter into an agreement which was prohibited by Section 8(e) of the Act in violation of Section 8(b)(4)(i) and (ii)(A) of the Act. In addition, whether Respondent La- borers' and Respondent Cement Masons' picketing of West-Cal and its subcontractor G & L Concrete at the reserved gate, set aside for neutral or secondary employ- ers, violated Section 8(b)(4)(i) and (ii)(B) of the Act. Final determination of this issue rests on the question of whether Respondents were endeavoring to engage in a proscribed "top/down" of organizing nonunion subcon- tractors within in the meaning of the Supreme Court's Connell decision. 3 B. Pertinent Facts West-Cal is engaged in the supervision of the building of motels for California Six Motels, Inc. It has built simi- lar motels throughout the State of California and is pres- ently engaged in completing motels in Oregon and Sac- ramento, California. In this capacity, West-Cal limits its operation to the supervision of the construction of the motels. At the Sacramento jobsite, its employees were limited to John R. Norton, superintendent for West-Cal, and Timothy Alan Murphy, assistant superintendent. The president of the corporation, John Baird Norton, the father of John R. Norton, occasionally visited the jobsite. The actual construction of the building was performed by various subcontractors such as Can Am Plumbing, G & L Concrete, River City Mechanical, Ted May Con- struction, and Rayco Electric. Some of the subcontrac- tors used union men, but West-Cal did not have a union agreement with any union. West-Cal does not employ statutory employees; it em- ploys only the superintendent and assistant superintend- ent at the project. It has subcontracted the entire project and has no employees performing construction work. a Connell Consrruction Company. Inc. v. Plunhber & Seanilters Local tO0. et al., 421 U.S 616 (175) West-Cal does not have a contract or a collective-bar- gaining relationship with Respondent Laborers or Re- spondent Cement Masons. West-Cal commenced construction on the Sacramento motel in May 1979. It is located at the intersection of Starboard Street and Halyard Drive. A job office was lo- cated at the site which was utilized by Norton and Murphy. It is possible to enter the property either from Starboard Street (gate 1) or Halyard Drive (gate 2). C. The Alleged Unlawful Conduct On May 22, Frank Campos appeared at the jobsite and introduced himself to Timothy Murphy as the business representative for the Laborers Union. He wanted to know who was actually building the structure and who was in charge of the site. After Murphy explained that he was the assistant superintendent of the project, Campos urged him to sign the 1977-80 Laborers' Master Agreement, which he handed to him. Although Campos urged him to sign it at that time in order to make it a union job, Murphy explained that he was new and did not know the extent of his authority in such matters, therefore he would check with Norton, the president of West-Cal. No one was present during this conversation. Murphy turned the Laborers' Master Agreement over to the president on June 26. Thereafter, Campos appeared at the jobsite on a daily basis for approximately I week and then every other day. Although the president and Campos made several attempts to see each other, the meeting was never consummated since the president was seldom at that jobsite. On another occasion, Campos appeared at the site near the latter part of May when he met John R. Norton, the superintendent, outside his job office. He introduced himself to Norton as the business representative for La- borers Local 185, and asked Norton who he was, who were the contractors on the job, and were they union. At this initial meeting, Norton explained that he did not in fact know the names of all the contractors nor wheth- er or not they were, in fact, union. A few days later, they met again and Norton responded that both Can Am Plumbing and G & L Concrete would use laborers, al- though Norton thought that Can Am Plumbing was unionized, he was not certain as to the status of G & L Concrete. At this point, Campos insisted that he wanted his men on the job wherever laborers were needed. Norton responded that he was not responsible for hiring the laborers since this was all handled by the various subcontractors, and that if he wished to picket the job- site, he would set up a 2-gate system in order to segre- gate the job from union and nonunion. On or about June 20, Murphy observed Campos arrive at the jobsite with four men. Two of the men took posi- tions, as pickets, at the Halyard gate and two at the Star- board gate. The men carried two different placards. The first read: 55 DECISIONS OF NATIONAL LABOR RELATIONS BOARD UNFAIR LABOR PRACTICES WEST-CAL CONSTRUCTION LABORERS LOCAL 185 The second read: UNFAIR LABOR PRACTICES G & L CONCRETE LABORERS LOCAL 185 Within 3 or 4 days after the picketing began, Ohnie Oakley, the business agent of Cement Masons Union, ap- peared at the jobsite. Norton inquired as to why Oakley was present and he responded that he wanted his Cement Masons on the project. The picketing continued for approximately 3 weeks. On approximately June 27, West-Cal established re- served gates at the Halyard and Starboard entrances to the project.4 The sign which appeared on the Starboard Street entrance (gate 1) read: THIS GATE RESERVED FOR THE EXCLUSIVE USE OF WEST CAL CONST. CO. TED MAY CONST. CO. G & L CONCRETE CO. ALL OTHERS USE GATE 2 At gate 2 (Halyard Street), the sign read: THIS GATE RESERVED FOR THE EXCLUSIVE USE OF ALL CONTRACTORS, SUBCONTRACTORS, THEIR EMPLOYEES AND SUPPLIERS EXCEPTION WEST CAL CONST. CO. TED MAY CONST. CO. G & L CONCRETE CO. THEIR EMPLOYEES AND SUPPLIERS MUST USE GATE I ONLY The following identical telegrams were forwarded to both Respondent Unions on June 27: A reserved gate system has been established at 1254 Halyard Road, a construction site in West Sacra- mento. Your present picketing is unlawful. Unless you cease this unlawful activity we are taking ap- propriate legal action against your labor organiza- tion. Subsequent to June 21, Respondent Unions maintained the following placards at both gate 1 and gate 2: UNFAIR LABOR WEST-CAL CONSTRUCTION LABORERS LOCAL 185 (and on the reverse side of the placard) 4 Apparently West-Cal had previously attempted to establish reserved gates at the project but these gates failed to conform to the requirement of Electrical Workers Local 761 [General Electric Company] v. L.R.B., 366 U.S. 667 (1961). G & .-UNFAIR DOES NOT OBSERVE PREVAILING RATES OF WAGES AND WORKING CONDITIONS ON THIS JOB CEMENT MASONS 582 At various times during the picketing, both Murphy and Norton observed the following suppliers refused to cross the picket line and deliver the supplies to the sub- contractors on this site: Syar Industries, Ready-Mixed Concrete, Norpac Lumber, Georgia Pacific Lumber, Diamond International, Sierra Springwater, Amer-Cal Sanitation, and Canteen Chuck Wagon Food Service. These supplies were not for West-Cal since they were in a supervisory capacity, but were intended for the various subcontractors who were actually constructing the motel. IV. ANALYSIS AND CONCLUSIONS A. Reserved Gate Entrance Laborers Union initiated its picketing with two men at the Halyard gate and two men at the Starboard gate on June 20. Its signs indicated unfair labor practices by West-Cal and G & L Concrete. A few days later, Ohnie Oakley, Respondent Cement Masons' business repre- sentative, visited the project and demanded that his men be used on the job. On June 21, West-Cal set up a two- gate system in order to isolate neutral employers from the labor dispute. Apparently, these reserved gates did not conform to the requirements of Electrical Workers Local 761 v. N.L.R.B., supra. After consulting with their attorneys, the reserved gate signs were modified and cor- rected as of June 27. On the same date, West-Cal sent telegrams to the Unions informing them of the reserved gate system and that their picketing was unlawful. Al- though the signs clearly set out that West-Cal, Ted May Construction and G & L Concrete and their employees and suppliers could only use gate 1 (Starboard Street), and all others were to use gate 2 (Halyard Street), both Laborers Union and Cement Masons Union ignored the reserved gate signs and continued to picket both gates for 3 weeks. At all times, the integrity of the gates was maintained. In the present case, the Laborers had a dispute with West-Cal and the Cement Masons with G & L Concrete. There were several other subcontractors also working at this same location who were required to use either gate 1 or gate 2 in order to complete their work. A union may lawfully picket a primary employer with whom it has a legitimate dispute at a common situs so long as its conduct is consistent with that limited objec- tive. However, it may not picket the common situs where its objective is to cause others to stop doing busi- ness with the primary employer or other persons. Calvert General Contractors, Inc., 249 NLRB 1183 (1980). There- fore, when a separate gate is established to the common situs and is properly maintained for the use of the pri- mary employer and its suppliers, the union is limited to picketing that gate. If the union pickets the neutral gate 56 CONSTRUCTION AND GENERAL LABORERS UNION, LOCAL 185 reserved for other employers at the common situs, it vio- lates the Act. The language of the reserved gate signs and the tele- grams placed the Unions on notice that they should limit their pickets to gate 1. The Respondents did not have a primary labor dispute with any employer or supplier using gate 2. As a result of their continued picketing of both gates, many suppliers refused to cross the picket lines and refused to deliver to the subcontractors who were not parties to this dispute. Since the Unions did not have a dispute with these other subcontractors, their continued picketing of both gates was obviously an attempt to force West-Cal to sign the Laborers' Master Agreement and to do business only with subcontractors who hire union members on this project. Such conduct by Laborers and Cement Masons is a secondary boycott activity, and is prohibited by Sec- tion 8(b)(4)(i) and (ii)(B) of the Act: It shall be an unfair labor practice for a labor or- ganization or its agents . . . to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refus- al in the course of his employment to use, manufac- ture, process, transport, or otherwise handle or work on any goods, articles, materials, or commod- ities or to perform any services; or to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case, an object thereof is: . . . forcing or requiring any person to cease using, selling, handling, transporting, or other- wise dealing in the products of any other produc- er, processor, or manufacturer, or to cease doing business with any other person .... On the basis of the above, and the record as a whole, I find that Laborers Union and Cement Masons Union en- gaged in picketing with an object of forcing or requiring secondary employers to cease doing business with West- Cal and G & L Concrete. They picketed for a period of approximately 3 weeks beginning on June 20 at both gates, including the neutral gate 2 (Halyard Street), which was reserved for subcontractors and their suppli- ers with whom the Unions had no dispute. Their picket- ing was in violation of Section 8(b)(4)(i) and (ii)(B) of the Act. B. Section 8(e) The circumstances preceding the picketing are not in dispute. West-Cal subcontracted all of the work at the Sacramento jobsite and was not responsible for the hiring or firing of any of the subcontractors' employees. Al- though Campos was informed of these facts, he insisted that West-Cal should require the subcontractors to hire his union laborers. Later, Oakley made a similar demand in regard to his union cement masons. Campos had also urged Murphy, as the representative of West-Cal, to sign the 1977-80 Laborers' Master Agreement. When neither Murphy nor any other representative of West-Cal would sign the agreement, the Unions initiated the picketing at both entrances of the jobsite. As previously noted, the Laborers' Master Agreement is effective from 1977 to 1980. It contains the following provisions pertinent to this proceeding: Section I -Subcontractors The terms and conditions of this Agreement insofar as it affects Employer and the individual employer shall apply equally to any subcontractor of any tier under the control of, or working under oral or writ- ten contract with such individual employer on any work covered by this Agreement to be performed at the job site or job yard, and said subcontractor with respect to such work shall be considered the same as an individual employer covered hereby. Subject to the provisions of this Section and any other Section of this Agreement applicable to sub- contractors, if an individual employer shall subcon- tract work herein defined, such subcontract shall state that such subcontractor agrees to be bound by and comply with the terms and provisions of this Agreement. A subcontractor is defined as any person, firm or corporation who agrees under contract with the Employer, or any individual employer, or a subcon- tractor of the Employer, or any individual employ- er to perform on the job site any part or portion of the construction work covered by the prime con- tract, including the operation of equipment, per- formance of labor and installation of materials. An individual employer who provides in the sub- contract that the subcontractor will pay the wages and benefits and will observe the hours and all other terms and conditions of this Agreement, shall not be liable for any delinquency by such subcon- tractor in the payment of any wages or fringe bene- fits provided herein, including payments required by Section 28 (Health & Welfare, Pension, Vacation- Holiday-Dues Supplement and Training & Retrain- ing Funds) except as follows: The individual employer will give written notice to the Union of any subcontract involving the per- formance of work covered by this Agreement within five days of entering such subcontract, and shall specify the name and address of the subcon- tractor. Written notice at a pre-job conference shall be deemed written notice under this provision for those subcontractors listed at the pre-job only. Noti- fication to the Union of any subcontractor not listed in writing at the pre-job must still be given in ac- cordance with this paragraph. If thereafter such subcontractor shall become delin- quent in the payment of any wages or benefits as above specified, the Union shall promptly give writ- ten notice thereof to the individual employer and to the subcontractor specifying the nature and amount of such delinquency. 57 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If such notice is given, the individual employer shall pay and satisfy only the amount of any such delin- quency by such subcontractor occurring within 75 days prior to the receipt of said notice from the Union, and said individual may withhold the amount claimed to be delinquent out of the sums due and owing by the individual employer to such contractor. In the event the individual employer fails to give written notice of a subcontract as required herein, such individual employer shall be liable for all de- linquencies of the subcontractor on that job or pro- ject without limitation. The individual employer shall not be liable for any such delinquency if the Local Union where the de- linquency occurs refers any employee to such sub- contractor after giving such notice and during the continuance of such delinquency. Section 9-Grievance Procedure Any dispute concerning the interpretation and ap- plication of this Agreement . . . the following pro- cedure will apply: 3. If said grievance or dispute is not satisfactorily adjusted by the appropriate Local Union or other- wise authorized Union Representative and the indi- vidual employer or his representative within three days after submission to the individual employer, the matter may be submitted by either party to a permanent Board of Adjustment created for the set- tlement of such disputes. 4. The Board of Adjustment shall be composed of two members named by the Union, two members named by the Association and an impartial Arbitra- tor. At any point in the proceedings should the panel be unable to reach a majority vote, the Arbi- trator shall participate and his decision shall be final and binding. 7. Decision of the Board of Adjustment or an Im- partial Arbitrator shall be within the scope and terms of this Agreement and shall be final and bind- ing upon all parties hereto. 8. In the event an individual employer fails to comply with any such decisions, the Union may withdraw employees or strike the individual em- ployer and such action shall not be a violation of this Agreement so long as such noncompliance con- tinues. Section 27-Employees Not to Be Discharged For Recognizing Authorized Picket Lines No employee covered hereby may be discharged by any individual employer for refusing to cross a picket line established by an international union af- filiated with the Building and Construction Trades Department of the American Federation of Labor- Congress of Industrial Organizations or a Local Union thereof, or the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America or a Local Union thereof, which picket line has been authorized or sanctioned by the local Building and Construction Trades Council having jurisdiction over the area in which the job is locat- ed after the individual employer involved has been notified and has had an opportunity to be heard. Said notice shall be in writing and mailed to the in- dividual employer involved at his last known ad- dress. This Section shall not apply to jurisdictional disputes. MEMORANDUM AGREEMENT It is hereby mutually understood and agreed by and between the undersigned individual employer and the Northern California District Council of Labor- ers for and on behalf of all affiliated Local Unions in the 46 Northern California Counties hereinafter referred to as Union that for and in consideration of services performed and to be performed by Labor- ers for the individual employer, the individual em- ployer agrees to comply with all wages, hours, and working conditions set forth in the Laborers' Master Agreement for Northern California June 16, 1977, through June 15, 1980 (which agreement is in- corporated herein by reference and a copy of which has been delivered to me and receipt of which is hereby expressly acknowledged), which amends, modifies, supplements, and renews each and every, all and singular previous Laborers' Master Agree- ments or individual employer Memorandum Agree- ment in the construction industry in the 46 North- ern California Counties and any future modifica- tions, changes, amendments, supplements, extensions or renewals of or to said Master Agreement which may be negotiated between the parties thereto for the term thereof. Notwithstanding any provisions of the Master Agreement or this Agreement, the Union reserves the right to strike the individual employer for al- leged contract violations or breach of this Agree- ment and such strike shall not be deemed a breach of contract by the Union. The Union at its sole option may process any alleged breach of contract through the grievance and arbitration procedures of the Master Agreement or by strike or both. Submis- sion of any grievance involving the undersigned in- dividual employer shall be to the permanent neutral arbitrator provided in the grievance procedure of 58 CONSTRUCTION AND GENERAL LABORERS UNION, LOCAL 185 the Master agreement. Claims for unpaid wages or trust fund contributions may be submitted to the labor commission at the sole option of the Union or the appropriate trust fund at anytime, in addition to any other remedy provided by the Master Agree- ment or this Agreement or by law .... Section 8(e) of the Act prohibits unions and employers from entering an agreement by which the employer agrees to refrain from dealing in the products of another employer or to cease doing business with another person. If the Laborers' Agreement violates Section 8(e) of the Act, then the picketing which was utilized to force or re- quire West-Cal to sign the agreement would be a viola- tion of Section 8(b)(4)(i) and (ii)(A) of the Act. There- fore, the first question which must be resolved is wheth- er those clauses in the Laborers' Agreement are pro- scribed by Section 8(e). In interpreting and applying Sec- tion 8(e), neither the Board nor the courts have conclud- ed that Congress intended to prohibit every agreement to which it could apply. The Supreme Court, in National Woodwork Manufacturers Association, et al. v. N.L.R.B., 386 U.S. 612 (1967), held that agreements which seek to preserve traditional bargaining unit work for unit em- ployees by limiting or proscribing the subcontracting of that work does not fall within the prohibitions of Section 8(e), because the objectives of such clauses are primary. The Court held that the determination of whether a clause and its enforcement violated Sections 8(e) and 8(b)(4)(B): . . .cannot be made without an inquiry into wheth- er, under all the surrounding circumstances, the Union's objective was preservation of work for Frouge's employees, or whether the agreements and boycott were tactically calculated to satisfy union objectives elsewhere. Therefore, if the clause in question provides a legitimate method by which the union can protect its traditional bargaining unit work, it is lawful as a primary interest of the union. When the clauses go beyond this primary in- terest of work preservation and tend to limit the employ- er's freedom to do business with individuals of his choice, or it inserts an element of control over the work- ing conditions of another employer, then it is secondary and prohibited. Section II of the 1977-80 Laborers' Master Agree- ment provides that the agreement "shall apply equally to any subcontractor" and further limits subcontracting to subcontractors who agree "to be bound by and comply with the terms and provisions of this Agreement." In a similar case, Los Angeles County District Council of Car- penters, 242 NLRB 801 (1979), the Board held that such subcontracting provisions constitute restrictions on doing business within the meaning of Section 8(e). In the pres- ent case, the two phrases represent "union signatory" clauses which plainly require subcontractors "to be bound by and comply with the terms and provisions of this Agreement," thus requiring subcontractors to do S Id. at 644. more than maintain union work standards. 6 As stated in Los Angeles County District Council of Carpenters, supra: The Board has found "union signatory" clauses vio- lative of Section 8(e) because they have a secondary thrust directed at furthering general union objec- tives and regulating labor policies of employers other than employers party to the clauses. 7 In addition, the Memorandum requiring the subcontrac- tor to establish and make contributions to jointly admin- istered health and welfare and pension funds is a union signatory clause within the meaning of Section 8(e) of the Act. A distinction is made between a clause which provides for equivalent union wages hours and which are considered the primary objectives of a union and, there- fore, lawful, as opposed to a clause calling for equivalent benefits which are considered secondary objectives of a union and, therefore, in violation of Section 8(e). 8 In the present case, the clauses in question are secondary and in violation of Section 8(e) since Respondent Laborers has no legitimate interest in insisting that employees of sub- contractors have health and welfare benefits equivalent or identical to those of West-Cal employees. I find that the requirements of Section 11 are within the general proscription of Section 8(e). The remaining question is whether these clauses are privileged by the construction industry proviso of that section. The restric- tions meet the express requirements of the proviso since they relate to jobsite work in the construction industry. C. Construction Industry Proviso Although Section 8(e) makes it an unfair labor practice for an employer and union to enter into an agreement, express or implied, whereby the employer agrees to cease doing business with any other person, there is a statutory exception, commonly referred to as the con- struction industry proviso, or proviso. The proviso of Section 8(e) provides: That nothing in this subsection shall apply to an agreement between a labor organization and an em- ployer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work .... Therefore, if the clause in question is found in a con- struction industry contract, it may be proscribed by the general provisions of Section 8(e) as having secondary objectives; however, the same clause may be privileged under the proviso. In 1975 the Supreme Court in Connell Construction, 421 U.S. 616, reviewed the proviso as it related to the 6 See Local 437. International Brotherhood of Electrical Workers. .4FL- CIO. et at (Dimeo Construction Co.), 180 NLRB 420 (1969). ? See Carpenters Local No. 944, United Brotherhood of Carpenters and Joiners of America. AFL-CIO. et al. (Woelke Romero Framing. Inc.). 239 NLRB 241 (1978). 609 F.2d 1341 (9th Cir. 1979); Los Angeles Build- ing and Construction Trades Council (Donald Schrtver. Inc.), 239 NLRB 264 (1978). " See Heavy Highway Building and Construction Teamsters. e al. (Cali- fornia Dump Truck Owners Associaton). 227 NLRB 269 (1976). 59 DECISIONS OF NATIONAL LABOR RELATIONS BOARD antitrust case. Plumbers Local 100 was the bargaining representative for workers in the plumbing and mechani- cal trades in Dallas, Texas. It was also a party to a mul- tiemployer bargaining agreement with the Mechanical Contractors Association of Dallas. The agreement con- tained a "most favored nation" clause, which provided that if it granted a more favorable contract to any other employer it would extend the same terms to all members of the association. Connell Construction Company was a general building contractor in Dallas. It obtained jobs by competitive bidding and in turn awarded subcontracts on the sole basis of competitive bidding. As a result, it dealt with both union and nonunion subcontractors. It subcon- tracted all plumbing and mechanical work. Connell's em- ployees were represented by various building trade unions. None of them were members of Local 100, and the subcontracting agreement contained the union's ex- press disavowal of any intent to organize or represent them. In November 1970, Local 100 picketed Connell in an attempt to force it to sign a contract under which Con- nell would subcontract mechanical and plumbing work only to firms that had a current contract with Local 100. The company signed under protest and then filed an anti- trust suit against the union. The Court majority rejected the argument that the union's agreement with Connell was expressly authorized by the construction industry proviso to Section 8(e) and was, therefore, lawful under the antitrust laws. Although the provisions of the agree- ment came within the literal language of the proviso, the Court concluded that Congress intended the proviso to extend only to subcontracting agreements "in the context of collective bargaining relationships" and only to partic- ular job sites. The Court held: We therefore hold that this agreement, which is outside the context of a collective-bargaining rela- tionship and not restricted to a particular jobsite, but which nonetheless obligates Connell to subcon- tract work only to firms that have a contract with Local 100, may be the basis of a federal antitrust suit because it has a potential for restraining compe- tition in the business market in ways that would not follow naturally from elimination of competition over wages and working conditions. In arriving at its decision, the Court reviewed the con- gressional history of the construction industry proviso, which was explained in the congressional hearings by only the bare references to "pattern of collective bar- gaining in the industry." The Court perceived that the proviso was enacted, in part, to overrule the effects of N.LR.B. v. Denver Building and Construction Trades Council, et al., 341 U.S. 675 (1951). In that case, the Court upheld the decision of the Board that by engaging in a strike, an object of which was to force the general contractor on a construction project to terminate its con- tract with a subcontractor employing nonunion labor on the project, the respondent labor organization committed an unfair labor practice within the meaning of Section 8(b)(4)(A) of the Act. In Justice Douglas' dissent, he points out that the basic desire and protest of union men throughout the history of the trade unions was simply to retain the freedom of not being compelled to work alongside nonunion men on the same job. Apparently, it was the desire and intent of Congress, when the proviso was ennacted, to avoid these jobsite frictions which result when union and nonmembers work "shoulder to shoulder" at a common construction jobsite. The facts in the present case are similar to Connell and Colorado Building and Construction Trades Council, 239 NLRB 253 (1978). In the latter case, the Utilities Serv- ices Engineering Company was engaged in municipal utility industrial construction and in maintenance oper- ations. On one of their projects, they had a contract with Johns-Manville Corporation to perform electrical mainte- nance work at the Johns-Manville Corporation Research and Development Center. Normally, Utilities Services did not use the services of subcontractors and did not on the Manville project. The employees of Utilities Services were not represented by any labor organization. There was never a collective-bargaining agreement between Utilities Services and the respondent labor organization. In early April, the union's business agent requested that Utilities Services sign an agreement governing the use of subcontractors on construction jobsite work and also in- formed them that the union would picket those who failed to sign. On April 22, the union picketed the Johns- Manville Research and Development Center site. The picket signs contained the following statement: UTILITIES SERVICES ENGINEERING, INC., has no sub- contracting agreement with Colorado Building and Construction Trades Council. We have no dispute with any other person or com- pany on this project. The respondent union argued that even if their proposed clause was within the general proscription of Section 8(e), it was privileged or protected by the proviso. The Board stated: In Woelke and Romero Framing, Inc.,9 a compan- ion case for oral argument, we concluded that the Connell decision construed the construction industry proviso to Section 8(e) to permit subcontracting clauses such as that in the instant case in the context of a collective-bargaining relationship. We further noted that the Connell court suggested that such clauses might be protected by the proviso even without a collective-bargaining relationship if they were directed toward the problems raised by the close relationship between contractors and subcon- tractors at the construction site and/or to the reduc- tion of friction that may be caused when union and nonunion employees are required to work together at the same jobsite. ' The Board concluded that the respondent union was seeking a subcontracting clause outside the context of a collective-bargaining relationship and thereby lost the protection of the proviso. 9 Carpenters Local No. 944, supra. I' Colorado Building and Construcrion Trades Council, supra at 256. 60 CONSTRUCTION AND GENERAL LABORERS UNION, LOCAL 185 In the present case, Respondent Laborers Union is a "stranger" to West-Cal. There are no bargaining agree- ments between the two. The Laborers does not represent anyone at the jobsite. West-Cal does not have employees at the jobsite other than two members of management, nor is there any reason to believe from the evidence that it will have such employees in the future, which might justify the clause in a prehire context under Section 8(f) of the Act. Both the Court in Connell and the Board in subsequent cases have alluded the possible protection of the proviso when there is no collective-bargaining relationship if "the clause is addressed to problems posed by the common situs relationships on a particular jobsite or to the reduction of friction between union and nonunion employees at a jobsite.""I The agreement offered by the Laborers Union is not related to the problems posed by the common situs relationship or potential friction of union and nonunion members working "shoulder to shoulder." The contract is not limited to times and places where Respondents' members would be working on the project. In general, the clauses are directed toward the interest of the Union in obtaining work and have nothing to do with the problems of common situs. Therefore, I find that the proposed agreement was outside the context of a collective-bargaining agreement and thereby loses the protection of the proviso, thus, it violates Section 8(e) of the Act and Respondent Labor- ers Union's picketing to obtain the agreement violated Section 8(b)(4)(ii)(A) of the Act. Self-Help Provisions The General Counsel and the attorney for the Charg- ing Party correctly assert that even if the union signato- ry secondary subcontracting clause contained in the 1977-80 Laborers' Master Agreement was privileged under the construction industry proviso of Section 8(e) of the Act, it would still violate Section 8(e) because of the "self help" provisions and an overly broad "picket line" clause. Accordingly, picketing to obtain such an agreement violates Section 8(b)(4)(i) and (ii)(A) of the Act. It is settled that, "although a contract within the con- struction industry proviso to Section 8(e) is exempt from the proscription of that Section, it may be enforced only through lawsuits and not by threats, coercion, or re- straint proscribed by Section 8(b)(4)(B)." Ets-Hokin Cor- poration, 154 NLRB 839, 840 (1965), enfd. sub nom. N.L.R.B. v. International Brotherhood of Electrical Work- ers, AFL-CIO, Local No. 769, 405 F.2d 159, 162-163 (9th Cir. 1968), cert. denied 395 U.S. 921 (1969). When Con- gress allowed certain onsite "hot cargo" agreements, it did not intend to change the law prohibiting nonjudicial enforcement of such contracts.'2 The policy underlying that proscription was based on "practical judgment on the effect of union conduct in the framework of actual disputes and what is necessary to preserve to the em- ployer the freedom of choice that Congress has de- I Colorado Building and Construction Trades Council. supra. 12 Local Union No. 48 of Sheet Metal Workers International Association v. The Hardy Corporation, 332 F 2d 682 (5th Cir. 1964) creed." Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL, et al. [Sand Door and Plywood Co.], 357 U.S. 93, 107 (1958). Thus, in enacting the pro- viso, Congress made it clear that such an agreement could not be enforced by picketing or economic action. Muskegon Bricklayers Union No. 5, Bricklayers, Masons and Plasterers International Union of North America, AFL-CIO (Greater Muskegon General Contractors Associ- ation), 150 NLRB 360 (1965), enfd. 378 F.2d 859 (6th Cir. 1967). In the instant case, there are areas of self-help pro- vided in the Master Agreement. In Section 9, subsection 8, the Respondent Laborers retained authority to with- draw employees from the jobsite or strike the employer if employer fails to comply with a decision arising from the grievance/arbitration provisions. A dispute arising under Section 11-Subcontractors-may be submitted to the grievance/arbitration procedure. In this manner, Re- spondent Laborers is permitted by Section 9, subsection 8, of the agreement to strike West-Cal to enforce the sec- ondary subcontracting clause. The Board has held that such subcontracting clauses are unprivileged because they constitute means of "self enforcement" or "self help" of the subcontracting clauses.1 3 In addition, the sixth paragraph in the Memorandum of Agreement reserves the option of striking or proceed- ing through grievance, or both, if the employer breaches the Memorandum Agreement. Also, Section 27 provides that an employee may not be discharged for refusing to cross a picket line established by an international union affiliated with the Building and Construction Trades De- partment of the AFL-CIO, or a local union affiliated with the AFL-CIO, or the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or one of its local affiliates, which picket line was authorized or sanctioned by the local Building and Construction Trades Council having jurisdiction over the area in which the job is located. The General Counsel correctly contends that the clause is also unlawful under Section 8(e) of the Act since it is sufficiently broad to authorize participation by a signatory employer's em- ployees in secondary picketing and strikes. Consequently, the Master Agreement is not entitled to the protection of Section 8(e) of the Act, and picketing to force West-Cal Construction to sign this agreement violates Section 8(b)(4)(i) and (ii)(A) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Unions set forth in section Ill, above, occurring in connection with the West-Cal's operations described in section 1, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States, and tend to lead, and have led, to labor disputes burdening and ob- structing commerce and the free flow of commerce. "a Lot .4ngele County Distrtcl Council of Carpenters. 242 NLRB 801 (1979). 61 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondent Laborers Union has en- gaged in unfair labor practices in violation of Section 8(b)(4)(i), (ii)(A) and (B) of the Act, and further, that the Respondent Cement Masons Union has engaged in unfair labor practices in violation of Section 8(b)(4)(i) and (ii)(B) of the Act, I shall recommend they cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. West-Cal Construction, Inc., is an employer en- gaged in commerce and in an industry affecting com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Construction and General Laborers Union, Local 185, Laborers International Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Cement Masons Local 582, Operative Plasterers and Cement Masons International Association, AFL-CIO, is a labor organization within the meaning Section 2(5) of the Act. 4. The agreement governing subcontracting of con- struction site work is one into which Respondent Unions and the Charging Party may not lawfully enter, under the provisions of Section 8(e) of the Act, by reason of self-enforcement provisions. By picketing in an effort to force West-Cal into signing this agreement, Respondent Laborers Union did coerce and restrain West-Cal and did thereby engage in unfair labor practices in violation of Section 8(b)(4)(i) and (ii)(A) of the Act. 5. By picketing for 3 weeks, beginning on June 17, 1979, at a construction site entrance, gate 2, which was reserved for subcontractors and suppliers with whom Laborers Union and Cement Masons Union had no dis- pute, in furtherance of a dispute with West-Cal and its subcontractor, G & L Concrete, the Unions violated Sec- tion 8(b)(4)(i) and (ii)(B) of the Act, which violations are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 62