Building Material And Dump Truck Drivers, Teamsters Local Union No. 36

970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Building Material and Dump Truck Drivers, Team- sters Local Union No. 36, affiliated with the International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America (Nelson & Sloan) and Hofer & Sons= Equipment Rental. Cases 21-CC-2825 and 21-CE-328 5 December 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 27 August 1984 Administrative Law Judge Russell L. Stevens issued the attached decision. The Respondent and the Charging Party filed ex- ceptions and supporting briefs, and the General Counsel, the Charging Party, and Intervenor Con- rock Company filed briefs answering the Respond- ent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions as amended, to amend his recommend- ed Remedy, and to adopt the recommended Order as modified. The Charging Party has excepted to the judge's failure to find that the Respondent's demand that Nelson & Sloan pay $4749.20 as an additional con- dition for the cessation of its illegal picketing was also coercive behavior violative of Section 8(b)(4). The Charging Party urges that we make this find- ing and in consequence modify the judge's recom- mended Remedy and Order to include reimburse- ment of the above sum to Nelson & Sloan. We find merit in this exception. We affirm the judge's conclusion that article IV(o) of the collective- bargaining agreement be- tween the Respondent and Nelson & Sloan is viola- tive of Section 8(e).2 As more fully detailed in the judge's decision, on 2 March 1984 the Respondent, in seeking to enforce the unlawful contract provi- sion, set up pickets outside Nelson & Sloan's facili- ty, thus inducing and encouraging Nelson & i The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 In affirming the judge's conclusion, we find it unnecessary to rely on the substance of fn. 12 of the judge's decision. It is clear in the circum- stances of this case that the Respondent had no valid, primary objective with respect to its maintenance of art. IV(o), and this is sufficient to sus- tain the violation Sloan's employees to refuse to report for work. The judge found and we agree that this conduct violated Section 8(b)(4)(i)(A) and (B). Shortly thereafter, the Respondent conditioned removal of the pickets on Nelson & Sloan's agreement to cease using the services of the Charging Party and on its payment of $4749.20 to the union trust fund. This sum apparently was the result of computations made pursuant to a penalty formula outlined in 'ar- ticle IV(o), the illegal contract provision. Nelson & Sloan effectively complied with both conditions and the pickets were withdrawn. The judge concluded and we agree that the Re- spondent's conditioning the removal of the pickets on Nelson & Sloan's termination of its subcontrac- tual relationship with the Charging Party violated Section 8(b)(4)(ii)(A) and (B). However, he made no legal finding with respect to the Respondent's second condition, the trust fund payment. In our view the payment demand as a condition for re- moval of the pickets, like the condition that Nelson & Sloan cease doing business with the Charging Party, was a part of the Respondent's scheme to enforce coercively a contract provision unlawful under Section 8(e). Further, it tended to reinforce the Respondent's requirement that Nelson & Sloan no longer utilize the Charging Party's services. Thus this second condition was clearly a part of the Respondent's coercive conduct violative of Section 8(b)(4)(ii)(A) and (B). Accordingly, pursu- ant to Section 10(c), we find that it will effectuate the policies of the Act to order that the Respond- ent reimburse Nelson & Sloan in the amount of $4749.20, with interest. See, e.g., Teamsters Local 814 (Santini Bros.), 208 NLRB 184, 201 (1974), enfd. 546 F.2d 989 (D.C. Cir. 1976), cert. denied 434 U.S. 818 (1977). See also Shepard v. NLRB, 459 U.S. 344 (1983). AMENDED CONCLUSIONS OF LAW In Conclusion of Law 4, after the phrase "on Nelson and Sloan's agreement to cease doing busi- ness with Hofer" add the phrase "and on the pay- ment of $4749.20 to the union trust fund,". AMENDED REMEDY Add the following to the judge's recommended Remedy: "Said affirmative action will include reim- bursement by the Respondent of $4749.20 to Nelson & Sloan, with interest computed in accord- ance with the formula set out in Florida Steel Corp., 231 NLRB 651 (1977).3 3 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 277 NLRB No. 102 TEAMSTERS LOCAL 36 (NELSON & SLOAN) ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Building Material and Dump Truck Drivers, Teamsters Local Union No. 36, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, San Diego, California, its officers, agents, and representatives, shall take the action set forth in the Order as modified. 1. Delete paragraph 1(d). 2. Insert the following as paragraph 2(b) and re- letter the subsequent paragraphs accordingly. "(b) Reimburse Nelson & Sloan in the amount of $4749.20 with interest computed as described in the remedy section of this decision." 3. Substitute the attached notice for that of the administrative law judge. 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, seek to en- force or enforce article IV, paragraph (o) of the San Diego County Rock Producers Agreement for 1982-1985, to the extent that said provision violates Section 8(e) of the Act. WE WILL NOT picket, threaten to picket, or threaten to continue picketing Nelson & Sloan, where an object thereof is to force or require Nelson & Sloan to enter into or enforce the afore- said article IV, paragraph (o), to the extent that said provision violates Section 8(e) of the Act, or to enter into any other agreement prohibited by Section 8(e) of the Act. WE WILL NOT picket, threaten to picket, or threaten to continue picketing Nelson & Sloan, where an object thereof is to force or require Nelson & Sloan to cease doing business with Hofer, or any other person engaged in commerce. WE WILL withdraw any and all grievances filed pursuant to the San Diego County Rock Producers Association Agreement for 1982-1985, seeking to enforce article IV, paragraph (o) thereof, to the extent said provision violates Section 8(e) of the National Labor Relations Act. WE WILL reimburse Nelson & Sloan in the amount of $4749.20, with interest, said sum having 971 been paid pursuant to our unlawful enforcement of article IV, paragraph (o) above. BUILDING MATERIAL AND DUMP TRUCK DRIVERS, TEAMSTERS LOCAL UNION No. 36, AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN AND HELPERS OF AMER- ICA Theodore R. Scott, for the General Counsel. Richard D. Prochazka , of San Diego, California, for the Respondent. James K. Smith Esq. (Gray, Cary, Ames & Frye), of San Diego, California, for the Charging Party. David F Fraustman, Esq. (Latham & Watkins), of San Diego, California, for Conrock Company. DECISION STATEMENT OF THE CASE Russell L. Stevens, Administrative Law Judge. This case was tried in San Diego, California, on June 11 and 12, 1984.1 The charge in Case 21-CE-328 was filed Feb- ruary 24 by Hofer & Sons Equipment Rental (Hofer). The original charge in Case 21-CC-2825 was filed March 1 by Hofer, and the amended charge in that case was filed by Hofer on March 2. By order dated April 2 the Regional Director for Region 21, NLRB consolidat- ed two cases for trial and on the same date issued the complaint . The complaint alleges that Building Material and Dump Truck Drivers, Teamsters Local Union No. 36, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Respondent or Union) violated Section 8(b)(4)(i), (ii)(A) and (B), and Section 8(e) of the Nation- al Labor Relations Act (the Act). All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed by the General Counsel, the Charging Party (Hofer), and Inter- venor, Conrock Company (Conrock). On the entire record, 2 and from my observation of the witnesses and their demeanor , I make the following FINDINGS OF FACT 1. JURISDICTION At all times material Nelson & Sloan, a California cor- poration, has been engaged in the production and deliv- ery of ready-mix concrete and aggregate sand and gravel in Southern California. In the normal course and conduct of its business operations, Nelson & Sloan has, during the past 12-month period, purchased and received goods and ' All dates are within 1984, unless otherwise stated. 2 By document dated June 11, counsel for Conrock Company (Interve- nor) moved to intervene The motion was not opposed, and was granted by me at trial 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD products valued in excess of $50,000 directly from sup- pliers located outside the State of California. I find that Nelson & Sloan is, and at all times material has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Sec- tion 2(6) and (7) and Section 8(e) of the Act, and an em- ployer and a person engaged in commerce within the meaning of Section 8(b)(4)(i), (ii)(A) and (B) of the Act. Hofer is, and at all times material has been, engaged in the business of mining and transporting sand in Southern California, and at all times material herein has been a person engaged in commerce within the meaning of Sec- tion 8(b)(4)(i), (ii)(A) and (B) of the Act, and a person within the meaning of Section 8(e) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Background3 Nelson & Sloan is a producer of ready -mix concrete, and a sand and gravel operator. Kenneth Monson is Nelson & Sloan's executive vice president and general manager. At times relevant, Nelson & Sloan's principal source of sand used in its ready-mix concrete operation was the Sweetwater Reservoir , located on land owned by the South Bay Irrigation District (District). On August 22, 1979, the District granted to Nelson & Sloan a license to take sand from the Sweetwater Reservoir for the price of 75 cents per yard, with a minimum yearly total. The li- cense provided , inter alia, that it was not assignable "without the written consent of Owner [note : the Dis- trict] first had and obtained." Sometime in 1981 , on a date not established at trial, Nelson & Sloan ceased its mining of sand at the Sweet- water Reservoir, and turned to subcontractors for the sand required by its operations . Nelson & Sloan sold the equipment it had been using to mine and screen sand, but did not lay off any employees. It retained all its truck and equipment drivers, and much of its transportation fleet. Some transportation equipment was placed in a dis- posal area, and part of that equipment later was sold. On ceasing to mine sand , Nelson & Sloan relied on David Martin Company to perform that work. On July 27, 1982, Nelson & Sloan entered into an agreement with Hofer, pursuant to which Hofer con- tracted to dig, screen, load and transport sand from the Sweetwater Reservoir site to Nelson & Sloan's plants 10 and 13 (Chula Vista and Lakeside). Hofer used its own employees to dig, screen , and load the sand , and used its own employees and equipment, as well as those of inde- pendent owner-operators, to transport the sand from S This background summary is based on credited testimony and evi- dence not in dispute Sweetwater Reservoir to the Nelson & Sloan plants.4 Nelson & Sloan did not assign its District license to Hofer, and Hofer does not make any payments to the District. Nelson & Sloan continues to make regular pay- ments to the District pursuant to its license , and pays Hofer $4.75 per cubic yard for sand dug, processed, and delivered by Hofer.5 Nelson & Sloan is a member of the San Diego County Rock Producers Association , which has had a series of collective-bargaining agreements with Respondent. The most recent agreement is effective from September 1, 1982, through August 31, 1985. The agreement provides, inter alia: ARTICLE IV (o) For the purpose of preserving work and job op- portunities for drivers-employees covered by this agreement , the employer shall not utilize these serv- ices of any other person to perform driving work covered by this agreement, provided, however, that after all of the employer's operable equipment of a particular type (mixer truck, end dump or bottom dump aggregate truck, cement tanker, etc .) has been deployed and provided the driver (drivers) of the effected equipment report to work as scheduled the employer may utilize the services of owner -opera- tor. When the employer hires trucks through a broker, or otherwise engages the services of owner-opera- tors, drivers of such trucks shall clear through the union prior to starting work if possible , and in any event, an owner-driver shall clear through the union prior to starting work on the second day. Truck owner-operators must prove registered and/or legal ownership to the union. In the event the Employer is found, by a committee made up of an equal number of Employer and Union representatives from the negotiating commit- tees, to have violated any portion of this provision, the Employer shall immediately pay for each viola- tion or for each owner-operator with respect to whom the Employer is in violation, a sum equal to one day's pay at the highest hourly rate covering wage and fringe benefit costs under this agreement for each day or portion thereof the violation oc- curred. Such monies shall be payable to the San Diego County Teamsters' Health and Welfare Trust Fund.6 On January 16, 1984, Respondent's vice president and business agent, Daniel Miller, wrote a letter to Monson: 4 Nelson & Sloan uses some of its own transportation equipment to carry sand during slack periods 5 Monson and Hofer credibly testified that the District granted Nelson & Sloan the right to have Hofer dig, process, and move the sand under Nelson & Sloan's license 6 The agreement of August 16, 1980, to August 31, 1982, had an identi- cal provision. TEAMSTERS LOCAL 36 (NELSON & SLOAN) , Dear Sir: On Tuesday, Jan. 10, 1984 it came to our atten- tion that Nelson-Sloan appears to be in violation of Article XV of our current collective bargaining agreement. Hofer and Son Trucking and/or Hofer & Sons Equipment have been doing bargaining unit work at the "Sweetwater Pit." Local #36 was not notified in writing and was not given a reasonable opportunity to discuss the matter before the actual change in operation took place. Local #36 hereby requests to meet with you as soon as possible to settle this dispute. The reference to January 10, 1984, was based on a report to Miller by Clark Stillwagon, a Nelson & Sloan driver who is Respondent's shop steward, and by Clarence Spoon, Respondent's secretary-treasurer and business agent. Spoon reported that he was driving on the high- way in January "and recognized a Nelson/Sloan or what I assumed to be a Nelson/Sloan vehicle with Hofer's name on the door."7 Nelson & Sloan and Respondent were unable to resolve the issue raised by Miller's letter, and the matter was referred to the grievance procedure of the collective-bargaining agreement. The parties' Joint Conference Board issued its award on February 6, order- ing that Nelson & Sloan comply with the provisions of article IV, paragraph (o) of the agreement, quoted above. The award was based on the fact that Hofer had not cleared through the Union prior to starting work at the Sweetwater Reservoir. Hofer then directed the owner-operators working for him to report to Respond- ent for clearance. The owner-operators were given clear- ances by the Union, upon their furnishing Respondent with proof of ownership of their vehicles. Hofer contin- ued to use its own employees, driving Hofer's trucks and other equipment, to transport sand to Nelson & Sloan's concrete plants. After the February 6 Joint Conference Board award was issued, Miller called Monson on the telephone and told him Nelson & Sloan must cease and desist from using the services of Hofer. Monson replied that he was complying with the award, and before he proceeded fur- ther, he required clarification of the award. On February 9 Respondent requested a Joint Conference Board clarifi- cation of its award of February 6,8 and on February 21 the Joint Conference Board issued a clarification, stating, inter alia, "the board intended, by its above award, to re- quire all persons hauling sand from the `Sweetwater pit' to conform to the terms of Paragraph 0, i.e., clear through the union within 48 hours from date of receipt of the award." On February 23 Ernest Hofer, owner of Hofer, and Hofer's employees went to Respondent's union hall to obtain clearances pursuant to the collective -bargaining 7 Hofer purchased two tractors and one trailer from Nelson & Sloan in December 1983 Hofer testified that the equipment was inoperable, and stored in the "boneyard" (wrecking yard) when he purchased it. Hofer said he restored the equipment and put it back into operation. Stillwagon testified that the equipment was operable, and that its location when pur- chased by Hofer was hidden by Nelson & Sloan and not in the boneyard Hofer's version of this incident is credited 8 This request was in the form of a grievance G C Exh 6 973 agreement. Spoon told Ernest Hofer that he, Ernest Hofer, could be given a clearance since he owned the trucks, but that Hofer's employees could not be given clearances since they did not own the trucks they drove. Ernest Hofer and his employees left the hall, and Hofer continued to use its employees to deliver sand from Sweetwater Reservoir to Nelson & Sloan's plants. By letter dated February 29, Spoon stated to Monson that Nelson & Sloan was in "blatant diregard" of the Joint Conference Board order, and that "This is to advise that you are hereby given 24 hours written notice of our intent to picket any and all Nelson-Sloan facilities on or after midnight Thursday, March 1, 1984." Picket- ing commenced March 2. When Monson arrived at Nelson & Sloan's facility approximately at 5:35 a.m. on March 2, he saw Spoon, Miller, and Eddy Galvas, a business representative for Respondent, picketing at the gate with signs reading: Teamsters Picket Local 36 Nelson & Sloan Violation of Conference Board Award Approximately 100 of Nelson & Sloan's employees were standing outside the facility, refusing to cross the picket line, and report for work. Monson asked Spoon what was going on and Spoon replied that Monson suggested that they work out a solution. Spoon declined to do so, saying that the only solution was for Nelson & Sloan to cease and desist from using Hofer, and to pay to the union trust fund contractual amounts for all hours Hofer employees worked for Nelson & Sloan since the Joint Conference Board award was issued . After talking with Nelson & Sloan's attorney, Monson agreed to Respond- ent's demands. The pickets were dismissed approximately at 6:40 a.m., and the waiting employees reported for work. Monson then signed an agreement to cease and desist from using drivers who had not cleared through the Union, until the matter legally was settled, and gave Spoon a check in the sum of $4749.20 made payable to the union trust fund.9 After March 2, and until Nelson & Sloan obtained an injunction against the Union issued by the United States District Court for the Southern Dis- trict of California, Hofer stopped using its employees for Nelson & Sloan runs, and employed only independent owner-operators for such work. A. The 8(e) Issue By letter of March 6, Monson notified Respondent that Nelson & Sloan would be using Hofer and its em- ployees commencing Thursday, March 8. Spoon replied by letter dated March 7, and threatened to picket all of Nelson & Sloan's facilities if Nelson & Sloan did not comply with the Joint Conference Board's award of Feb- 9 There are a few minor discrepancies in the versions of Spoon and Monson relative to the summary contained in this paragraph Monson was a more convincing and impressive witness than Spoon, and this sum- mary embodies Monson's testimony, which is accepted as accurate. 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ruary 6, as clarified February 21. Monson then informed Hofer that the latter would not be able to haul sand for Nelson & Sloan with its employees. That proscription continued until the date of the U.S. district court injunc- tion noted above. Section 8(e) of the Act, sometimes referred to as the "hot-cargo" section, was enacted into law in 1959 as a part of the Landrum-Griffin Act, which amended the National Labor Relations Act. The portion of Section 8(e) that is relevant to this issue is as follows: (e) It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, expressed or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter con- taining such an agreement shall be to such extent unenforceable and void. Section 8(e) addresses itself to what the Congress consid- ered a defect in the law prior thereto, i.e., the law that permitted contractual provisions directed to unoffending employers, rather than to conditions of work of the con- tracting employer. It was the intent of Congress in enact- ing Section 8(e) to preclude secondary boycotts, and a literal reading of the statute indicates that all agreements for secondary action are covered. However, judicial pro- nouncements have resulted in the allowance of some sec- ondary agreements as being outside the intent of the stat- ute. National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612 (1967), rehearing denied 387 U.S. 926 (1967), sets forth the basic judicial guidelines in determining the nature of contracts permissible under Section 8(e). That case approves subcontractual limitations on an employ- er's actions, provided the purpose thereof is to protect and preserve work standards and opportunities of the bargaining unit. These clauses sometimes are referred to as "union standards clauses." However, provisions that limit subcontracting to employers who are parties to union contracts are secondary and illegal, since their pur- pose is to further union causes outside the ambit of the unit. Such clauses sometimes are referred to as "Union signatory" provisions. Many cases have been decided by courts and the Board pursuant to the guidelines of Na- tional Woodwork, with some types of contractual provi- sions being found lawful, and some being found unlaw- ful. However, those guidelines have not been disturbed, and remain the law. The National Labor Relations Board has discussed the question of primary agreements which limit subcontract- ing under Section 8(e): Contract clauses whose basic aims are to limit sub- contracting so as to preserve for unit employees work which has customarily been performed by them, or in some instances to recapture work re- garded as fairly claimable, so-called unit protection clauses, and contract clauses designed to limit sub- contracting of unit work to employers who main- tain the same standards of employment, thus mini- mizing 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 standard clauses is that the union has a primary interest in preserving unit work for unit employees and to insure that negotiated standards will not be under- mined. 110 Respondent argues that "The evidence indicated that Article 4(o) was negotiated to protect the bargaining unit work of the Respondent." Article IV(o) of the agreement quoted above, provides inter alia, that if certain conditions are met, "the employ- er may utilize the services of owner-operator." It is quite clear from the evidence, summarized supra, that Re- spondent interpreted the provision to exclude subcon- tracting to anyone other than owner-operators, and that the wording of the provision permits no other interpreta- tion. Further, the evidence is clear that the prehire con- ditions of the agreement were satisfied in this case by Nelson & Sloan. The employer did not lay off any unit employee because of its sale of equipment or change of operations; the employer used the services of Hofer be- cause of economic necessity; there is no evidence that unit work and standards were affected in any manner by the Employer's use of Hofer. Patently, Respondent sought to preclude Nelson & Sloan's use of Hofer for some reason other than maintenance of union standards or unit protection. That reason was furtherance of union goals outside the Nelson & Sloan unit of employees. Respondent argues that article IV(o) "was negotiated to protect the bargaining unit work of the Respondent," and cites Wheeler's testimony that the article was re- vised, and continues in its present form, in order to pre- serve work for Nelson & Sloan's unit employees. Wheel- er testified, and Respondent argues, that at the time the contract was negotiated, "most of the companies were using owner-operators and that was why the language was put in the contract." The revision, Respondent con- tends, was necessary because owner-operators were being "put on the clock" earlier than unit employees, therefore the contract is for the purpose of protecting unit work against "encroachment by owner operators." That testimony and the argument based upon it, are con- clusionary, and in conflict with the Union's interpreta- tion of the contract." The words of article IV(o) are plain, and Respondent agreed they are plain, when it of- fered a clearance to Hofer, but denied clearance to Hofer's employees who were not using their own trucks. Regardless of any arguments as to whether or not article IV(o) is ambiguous, and whether or not Respondent may have had some concern about owner-operators when it agreed to the article, the fact remains that its words con- trol this case. Those words were applied by Respondent 10 Teamsters Committee for Northern California (California Dump Truck Owners Assn.), 227 NLRB 269, 272 (1976) 11 Respondent's interpretation and use of the words of the contract are permissible evidence of the meaning of the words Machinists District No. 9 (St. Louis Automotive), 134 NLRB 1354 (1962) TEAMSTERS LOCAL 36 (NELSON & SLOAN) in order to force Nelson & Sloan to cease doing business with Hofer, who used its own employees driving trucks owned by it. Thus, article IV(o) on its face precludes Nelson & Sloan from doing business with all subcontrac- tors who employ drivers of equipment owned by those subcontractors. Such a contractual provision permits sub- contracting only of owner-operators, even if unit work and standards are not involved, and is for a secondary object in violation of Section 8(e) of the Act.12 Respondent argues that Griffith Co.13 controls this issue, but that case is not applicable herein. There, only Section 8(b)(4)(ii)(A) and (B) of the Act was at issue, and the administrative law judge stated, "I find it unneces- sary to consider further questions which the record pre- sents. These questions primarily, derive from certain rele- vant statutory provisions which, because of my disposi- tion with respect to this case, need not be reached." Sec- tion 8(e) of the Act was not in issue, nor was any finding or conclusion made relative to that section. Respondent argues "There is ample evidence in the record that Hofer is in fact performing bargaining unit work."' That argument is not persuasive. Spoon made it clear in his testimony that he did not know, when he re- fused a clearance to Hofer's employees, whether or not Nelson & . Sloan had equipment of its own that it could use for the work Hofer was doing. Spoon testified that he was ready to give Ernest Hofer a clearance as owner of the trucks. Patently, Spoon was not protecting unit work-he was concerned only with keeping Hofer's em- ployees off the job, for a secondary object. Apparently Spoon believed it irrelevant whether or not contractual conditions for subcontracting had been met by Nelson & Sloan, or he believed that the conditions had been met. Yet, those conditions are the contractual predicate for utilization of owner-operators. Being ready and able to give Hofer a clearance, but simultaneously refusing clear- ances for Hofer's employees, Spoon made it clear that he considered Respondent the arbiter under the agreement, concerning Nelson & Sloan's selection of persons with whom it would subcontract. Section 8(e) does not pro. tect that kind of class selection. Apparently Respondent argues that, because Nelson & Sloan once screened and hauled its own sand with unit employees, and Hofer took over some of that work,14 it necessarily follows that Hofer was doing unit work. However, Monson credibly testified that the change was necessitated by economic conditions. Further, Spoon did not contend that Ernest Hofer was interfering with bargaining unit work. Finally, the contract specifically envisions what Nelson & Sloan did-i.e., employ subcontractors. Clearly, subcontracting does not, per se, interfere with unit work. If there is in- terference, such fact must be shown in order to fall 12 As pointed out by the Intervenor , owner-operators are not potential union members, hence Respondent's agreement that Nelson & Sloan, sub- ject to some conditions, could use owner-operator subcontractors. Charles McGowen, San Diego division manager of Conrock, a company with operations similar to those of Nelson & Sloan, credibly testified that Respondent once attempted to organize the employees of C R Stevens, a company that mined sand and delivered it to Conrock in the manner carried out by Hofer for Nelson & Sloan 1e Dump Truck Drivers Local 36 (Gr{ffith Co.), 173 NLRB 348 (1968) 14 As noted supra, Nelson & Sloan still uses unit employees on this work during slack time 975 within the protection of Section 8(e). Not only did Re- spondent fail to show interference, Spoon negated such a situation when he agreed to give Ernest Hofer a clear- ance. Importantly, as noted earlier, no unit employee of Nelson & Sloan was laid off, or had hours of work re- duced, as a result of its subcontracting with Hofer, The General Counsel, Intervenor, and Charging Party argue that article IV(o) of the collective-bargaining agreement also violates Section 8(e) of the Act in that it requires subcontractors to obtain clearance from the Union no later than the start of the second day of work. That argument is well founded. The contested provision limits the class of persons to whom Respondent will permit work, and Respondent offered no valid reason for such action, as discussed above. The "clearances" provi- sion of the agreement clearly violates Section 8(e) of the Act. 1 s B. The 8(b)(4)(i), (ii)(A) and (B) Issue Respondent's picketing of Nelson & Sloan is discussed above, and the facts surrounding that picketing are not in dispute. The picketing constituted "inducement and en- couragement" of Nelson &, Sloan's employees who re- fused to work on March 2, within the meaning of Sec- tion 8(b)(4)(i).16 As noted earlier, Respondent threatened in its letters of February 29 and March 7 to picket Nelson & Sloan, and picketed March 2. Further, in his conversation with Monson March 2, Spoon conditioned removal of the pickets on Nelson & Sloan's discontinuance of its subcon- tract with Hofer. That conduct violated Section 8(b)(4)(ii) of the Act, as alleged by the General Coun- sel.17 As discussed above, article IV(o) of the collective-bar- gaining agreement between the Association and Nelson & Sloan violates the provisions of Section 8(e) of the Act. Respondent's actions taken to force or require Nelson & Sloan to enter into such a contract violated Section 8(b)(4)(A) of the Act, as alleged by the General Counsel. Further, the record demonstrates that Respond- ent's actions were undertaken to force or require Nelson & Sloan to give effect to article IV(o), and thereby to enter into an agreement prohibited by Sections 8(e) and 8(b)(4)(A) of the Act. 118 As argued by the General Counsel, Spoon's conditions for removal of the pickets on March 2 clearly showed that an object of the picketing was to force or require Nelson & Sloan to discontinue doing, business with Hofer, or with any other person not cleared through the Union, in violation of Section 8(b)(4)(i) and (ii)(B). 11 Teamsters Local 36 (California Dump Truck Owners), 249 NLRB 386 (1980), enfd 669 F 2d 759 ( 1980), affd. Shepard v NLRB, 459 U S 344 (1983); Painters, Local 585 (Falstaff Brewing Corp ), 144 NLRB 100, 104 (1963) 16 Mine Workers Local 2117 (Codell Construction Co), 245 NLRB 673 (1979), Service Employees Local 73 (Andy Fain), 239 NLRB 295 (1978) 17 Teamsters Local 84 (Graybor Electric Co), 243 NLRB 665 ( 1978). As noted in the background summary, above , Spoon denied Monson 's testi- mony that Spoon conditioned removal of the pickets partially upon Nelson & Sloan's discontinuance of using Hofer, but Monson was a more credible witness than Spoon 18 California Dump Truck Drivers Assn , supra. 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the basis of the foregoing findings of fact and the entire record, I make the following CONCLUSIONS OF LAW 1. Hofer & Sons Equipment Rental is an employer en- gaged in commerce and in a business affecting commerce within, the meaning of Section 2(6) and (7) of the Act. 2. Building Material and Dump Truck Drivers, Team- sters Local Union No. 36, affiliated with the Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. By entering into, maintaining, and enforcing article IV, paragraph (o) of the San Diego County Rock Pro- ducers Association Agreement for 1982-1985, Respond- ent has engaged in unfair labor practices within the meaning of Section 8(e) of the Act. 4. By threatening to picket, and picketing, Nelson & Sloan, and by conditioning the cessation of that picketing on Nelson & Sloan's agreement to cease doing business with Hofer, in order to enforce the aforesaid article IV, paragraph (o) and to force Nelson & Sloan to cease doing business with Hofer or any other person not cleared through Respondent, Respondent violated Sec- tion 8(b)(4)(i), (ii)(A) and (B) of the Act. 5. The foregoing unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of the Act, I shall recom- mend that it be ordered to cease and desist therefrom, and to take certain affirmative action to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed19 ORDER The Respondent, Building Material and Dump Truck Drivers, Teamsters Local Union No. 36, affiliated with the International Brotherhood of Teamsters, Chauffeurs, 19 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. Warehousemen and Helpers of America, San Diego, California, its officers, agents, and representatives, shall 1. Cease and desist from (a) Entering into, maintaining, seeking to enforce, or enforcing article IV, paragraph (o) of the San Diego County Rock Producers Agreement for 1982-1985 to the extent that the provision violates Section 8(e) of the Act. (b) Picketing, threatening to picket, or threatening to continue picketing Nelson & Sloan, to force or require Nelson & Sloan to enter into or enforce article IV, para- graph (o), to the extent that the provision violates Sec- tion 8(e) of the Act, or to enter into any other agreement prohibited by Section 8(e) of the Act. (c) Picketing, threatening to picket, or threatening to continue picketing Nelson & Sloan, to force or require Nelson & Sloan to cease doing business with Hofer or any other person engaged in commerce. (d) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Withdraw any and all grievances filed pursuant to the aforesaid agreement, seeking to enforce article IV, paragraph (o) thereof, to the extent said provision vio- lates Section 8(e) of the Act. (b) Post at its meeting hall, copies of the attached notice marked "Appendix."20 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (c) Furnish the Regional Director signed copies of such notice for posting by Hofer & Sons Equipment Rental. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 20 If 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."