Taylor Construction Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laborers' International Union of North America, Local No. 89, AFL-CIO (Harry C. Taylor d/b/a Taylor Construction Co.) and Sullivan and Associ- ates. Case 21 -CC- 1753-2 July 5, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On March 1, 1977, Administrative Law Judge David G. Heilbrun issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions combined with a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief, 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 Relations Board adopts as its order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE' DAVID G. HEILBRUN, Administrative Law Judge: This case was heard at San Diego, California, on December 2, based upon a charge filed May 7 and complaint issued August 20, alleging that Laborers' International Union of North America, Local No. 89, AFL-CIO, called Respon- dent, violated Section 8(b)(4)(ii)(A) of the Act by threaten- ing, coercing, and restraining Harry C. Taylor d/b/a Taylor Construction Co., called Taylor, with an object of forcing or requiring him to enter into an agreement All dates and named months hereafter are in 1976, unless indicated otherwise. 2 The transcript is hereby corrected by changing "option" (where appearing a second time) to "action" at p. 30, 1.24. 3 Taylor, constituted as a single employer with Taylor Construction Company, Inc., operates in San Diego County, California, as a general contractor in the building and the construction industry, annually purchasing and receiving materials valued in excess of $50,000 directly from suppliers located outside California. I find that Taylor is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. and a person engaged in commerce or in an industry affecting commerce within the meaning of Section 8(bX4)(ii)(A). Respondent is a labor organization within the meaning of Section 2(5) and Section 8(b). 4 Respondent advanced an offer of proof that Dale Yaeger, understood 230 NLRB No. 55 prohibited by Section 8(e). The particular conduct of Respondent at issue is its action in filing a lawsuit pursuant to breach-of-contract theory over Taylor's asserted failure to execute and implement a certain short-form jobsite agreement. Upon the entire record,2 my observation of the witnesses, and consideration of briefs filed by General Counsel and Respondent, I make the following: FINDmNGs OF FACT AND CONCLUSION OF LAW During 1974-75 Taylor constructed a building in Escondido, California.3 On August 6, 1974, Respondent issued Jerry Peck a work referral for employment as a laborer on this job. Peck worked the latter months of 1974 to an extent that Respondent calculated $1446.37 was due combined benefit funds established under terms of a master labor agreement effective from June 1974 through June 1977 and covering San Diego County construction work.4 Around September 1975 this amount was tendered by Taylor. 5 On February 23, Respondent filed a civil action in United States District Court for the Southern District of California against Taylor's corporate entity. This action was styled "Complaint for Declaratory Judgment in Respect to Collective Bargaining Agreement"; alleged that pertinent oral agreement had been reached in August 1974; and prayed for judgment requiring that defendant Taylor execute and be bound by the terms and conditions of the described collective-bargaining agreement. Taylor has resisted this action and continues now to decline signing any agreement with Respondent. In part, the short-form jobsite agreement reads: ARTICLE III B. The Employer agrees that he shall contract or subcontract all jobsite work only to persons, firms, partnerships, corporations, or other business organiza- tions who are party to current executed agreements with the Union. In the event that any such contractor or subcontractor fails to pay when due the wages or fringe benefits provided under the Agreement with the Union, the Employer shall immediately become liable for the payment of such delinquent sums, and such sums shall immediately become due and payable by the Employer, and the Union may take such lawful remedial action as it deems appropriate to collect all such delinquent wages and/or fringe benefits. by Laborers' Field Representative Ray Stedry to be Taylor's superinten- dent, offered no objection to the demanded execution of a short-form jobsite agreement, which included the master labor agreement by reference. Pursuant to these dealings Respondent corresponded with Taylor, submit- ting copies of pertinent documents and requesting their execution. 5 It has not been accepted because, as stated by Respondent's counsel during hearing, Sec. 302 of the Act bars such payment absent written agreement. This statement of record is consistent with a rejected exhibit wherein the Benefit Fund's office for construction laborers of San Diego County advised Taylor by letter dated November 5, 1975, that no penalty would be sought for late payment of contributions incurred in 1974, but failure to execute the short-form jobsite agreement would necessitate refund of the contributed amount. 638 LABORERS', LOCAL NO. 89 ARTICLE V B. It is agreed that in all cases of a claimed violation, misunderstanding, dispute or difference regarding the application or interpretation of this Agreement or the Master Labor Agreement or the Trust Agreements, in addition to any other lawful remedy, the Union shall have the right to call or engage or assist in a strike, shutdown, work stoppage or withdrawal of services and the Employer shall hame the right to engage in a lockout. This case presents quite baldly the question of whether a lawsuit is coercive when bottomed on a collective-bargain- ing agreement arguably contrary to Section 8(e). General Counsel contends the short-form jobsite agreement is violative on its face through extension of "self-help" powers to Respondent and otherwise by application of rationale contained in Connell Construction Co., Inc. v. Plumbers & Steamfitters, Local Union No. 100, 421 U.S. 616 (1975). This latter branch of General Counsel's argument hinges on whether a "signatory" subcontracting clause is necessarily outside the construction industry proviso to Section 8(e) if not expressly limited to times when the employer involved employs, or is to employ, craftworkers within the contracting trade union's geographical jurisdic- tion. I find no merit in General Counsel's overall position. As it might pertain to this case, Connell holds only that subcontracting agreements with "stranger" contractors would, in appropriate instances, remove the shield of Section 8(e)'s first proviso. Here Taylor is not in that sense the "stranger" to Respondent, as in fact he employed the craft for which Respondent exists to represent and has allegedly entered into a collective-bargaining agreement covering the wages and working conditions for such employees. This contrasts fully with the situation of plaintiff-appellant Connell Construction Co., a general building contractor not employing any persons for "plumb- ing and mechanical work." Connell, supra at 619, 631-632. In this regard Respondent correctly notes that the language in question from article V, section B literally retains recourse ("lawful remedy") to Respondent "other" than self-help. See Muskegon Bricklayers Union No. 5, 152 NLRB 360(1965). However, a far more significant reason is present on which to find for Respondent. The lawsuit, irrespective of motivation for its filing, is simply not coercive within the 6 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. meaning of Section 8(bX4Xii). The Board has consistently held that by refraining from nonjudicial acts of self-help a labor organization may successfully avoid the claim of coerciveness and that "judicial action [is not] self-help." Sheet Metal Workers, Intl. Assn., Local Union No. 49, 206 NLRB 473 (1973); Ets-Hokin Corporation, 154 NLRB 839, enfd. sub nom. International Brotherhood of Electrical Workers, AFL-CIO, and Local No. 769, 405 F.2d 159 (C.A. 9, 1968). Here, Respondent presents an arguable claim that repudiation of the short-form jobsite agreement occurred, warranting a remedial court declaration in its favor. Such limited strategy insulates it from a finding of having dealt impermissibly with Taylor under these circumstances. Cf. Heavy, Highway, Building and Construction Teamsters Committee for Northern California (Calif Dump Truck Owners Assn.), 227 NLRB 269 (1976); Retail Clerks Union Local 770 (Hughes Markets, Inc), 218 NLRB 680 (1975); Southern California Pipe Trades District Council No. 16, 207 NLRB 698 (reaffirmed in Sheet Metal Workers Intl. Assn., Local 28, AFL-CIO, 222 NLRB 727 (1976), notwithstand- ing acceptance of court remand sub nom. Associated General Contractors of Calif, Inc., 514 F.2d 433 (C.A. 9, 1975), and issuance of Supplemental Decision at 219 NLRB 323); La Mirada Trucking, Inc. v. Teamsters Local Union 166, IBT, 538 F.2d 286 (C.A. 9, 1976). Overall, I find the Board's recent decisions in Los Angeles Building & Construction Trades Council, AFL-CIO (Noble Electric), 217 NLRB 946 (1975), and International Union of Operating Engineers, Local Union No. 12 (Robert E. Fulton), 220 NLRB 530 (1975), dispositive of the entire case. There, an assertedly breached (whether contractual relationship was admittedly present or not) subcontracting clause was permitted enforcement where "only by law- suit[s ," and attempted establishment of an unlawful interpretation to a subcontracting agreement was "not sufficient to taint the lawsuit with illegality," even where exemplary damages were sought. Noble Electric, supra at 948; Fulton, supra at 538. On this basis the bland effort merely to obtain declaration of contractual rights can hardly be unlawful. See also Clyde Taylor Company, 127 NLRB 103 (1960). Accordingly, I render a conclusion of law that Respon- dent has not violated Section 8(bX4XiiXA) as alleged and issue the following recommended: ORDER 6 The complaint is dismissed in its entirety. 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. 639