Associated General Contractors Of California, Inc.

698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Associated General Contractors of California, Inc.; Heavy, Highway, Building and Construction Teamsters Committee for Northern California, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America; Teamsters Local Union Nos. 94, 137, 150, 216, 287, 291, 315, 386, 431, 439, 490, 533, 624, 684, 890, 912, and 980, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and California Dump Truck Owners Association and Associated Independent Owner-Operators, Inc. Cases 20-CE-148 and 20-CE-149 24 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON Upon appropriate charges,' the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 20, issued an order con- solidating cases, a consolidated complaint, and a notice of hearing on 24 January 1979. Copies of the charges, complaint , and notice of hearing were duly served on the Respondents. The complaint alleges that Respondent Team- sters Bargaining Committee, Respondent Unions, and Respondent AGC had violated Section 8(e) of the Act by entering into agreements whereby the employer-members of Respondent AGC have ceased or refrained or agreed to cease or refrain from doing business with other persons. The Re- spondents filed answers to the complaint, in which they denied the commission of any unfair labor practices. On 9, 10, and 11 April 1979 a hearing was held before Administrative Law Judge Leonard N. Cohen. Thereafter, on 20 July 1979 the parties in the consolidated cases filed a motion to transfer the proceedings to the Board and agreed to submit the cases directly to the Board for findings of fact, conclusions of law, and a Decision and Order based on the record of the hearing, as to which the parties stipulated that there were no credibility issues requiring resolution. On 10 October 1979 the I The charge in Case 20-CE-148 was filed on 19 December 1977 by California Dump Truck Owners Association (CDTOA) against Heavy, Highway, Building and Construction Teamsters Committee for Northern California, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of Amenca (Respondent Teamsters Bargaining Committee); against Teamsters Local Union Nos 94, 137, 150, 216, 287, 291, 315, 386, 431, 439, 490, 533, 624, 684, 890, 912, and 980, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amenca (Respondent Unions), and against Associated General Contrac- tors of California, Inc (Respondent AGC) The charge in Case 20-CE- 149 was filed on 3 January 1978 by Associated Independent Owner-Oper- ators, Inc (AIOO) against Respondent Teamsters Bargaining Committee, Respondent Unions, and Respondent AGC Board issued an order granting the motion and transferring the proceeding to the Board. Thereaf- ter, the General Counsel, the Charging Party, CDTOA, and Respondent Unions filed briefs with the Board, and Respondent AGC filed a summary of position. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the entire record in this proceeding and the briefs and position paper filed by the parties and makes the following FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYERS Respondent AGC is a voluntary association of employers engaged in the building and construction industry in California and exists for the purpose of representing its employer-members in negotiating and administering collective-bargaining agreements with various labor organizations, including Re- spondent Unions. In the course and conduct of business operations, during a 12-month representa- tive period, employer-members of Respondent AGC purchased and received in the State of Cali- fornia supplies and materials valued in excess of $50,000 directly from suppliers located outside the State of California. Accordingly, we find that the employer-mem- bers of Respondent AGC are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED We find that each of Respondent Unions is, and at all times material herein has been, a labor orga- nization within the meaning of Section 2(5) of the Act. In a previous proceeding the Board found that Respondent Teamsters Bargaining Committee is a labor organization, since it "exists for [the] purpose of entering into, maintaining, and administering collective bargaining [sic] with various employers of multiemployer associations, including AGC, with respect to wages, hours, and working condi- tions of employees represented by the local unions."2 At the hearing in this proceeding, Re- spondent Teamsters Bargaining Committee ad- duced no evidence that its status as a labor organi- zation has changed. To the contrary, the record demonstrates that Respondent Teamsters Bargain- ing Committee continues to possess all the indicia 2 Teamsters (California Dump Truck Owners Assn ), 227 NLRB 269, 277 (1976) 280 NLRB No. 82 ASSOCIATED GENERAL CONTRACTORS 699 of a labor organization within the meaning of Sec- tion 2(5) of the Act3 and, accordingly, we find it to be such a labor organization. W. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues I. Do sections 9 and 31 of the Respondents' cur- rent collective-bargaining agreement, as they per- tain to owner-operators, violate the general prohi- bition in Section 8(e) of the Act? (a) Are the owner-operators of for-hire dump trucks independent contractors rather than employ- ees within the meaning of the Act? (b) If the owner-operators are independent con- tractors, are sections 9 and 31 of the collective-bar- gaining agreement, as applied to them, secondary in nature? 2. Are sections 9 and 31, as applied to owner-op- erators, limited to construction jobsite work in a way that would entitle them, even if secondary, to protection under the first proviso to Section 8(e) of the Act? 3. Are the self-help provisions of sections 15(7) and 17, as applied to the subcontracting and owner-operator provisions of sections 30 and 31 of the MLA, unlawful under Section 8(e) of the Act? B. The History of the Dispute In August 1977, Respondent AGC, on behalf of its employer-members, entered into a "Master Labor Agreement, Building, Heavy, Highway and Engineering Construction" (MLA) with Respond- ent Teamsters Bargaining Committee and Respond- ent Unions. The MLA was effective from June 1977 to June 1980, and covered all of the northern California area. Sections 9, 15, 17, 30, and 31 of the MLA, the terms of which are set forth in full in Appendix C of this decision, are at issue in this proceeding. Sec- tions 9 and 31 require "owner-operators" doing work for signatory employers to be treated as em- ployees subject to the terms and conditions of em- ployment specified in the MLA, including union- security provisions requiring owner-operators to become union members within a certain period of time. Section 30 requires subcontractors of signato- ry employers to observe all terms of the MLA. 3 The record here discloses that Respondent Teamsters Bargaining Committee, which has been in continuous existence at least since 1960, is composed of representatives of Teamsters locals within the northern Cali- forma jurisdiction It negotiates and administers collective -bargaining agreements and selects persons to serve on the contractually created Boards of Adjustment that handle disputes that apse during the life of the contract Employees are not permitted to serve on the Committee, but are encouraged to attend committee meetings See, e g, St Francis Hospt- tal-Medical Center, 223 NLRB 1451 (1976), San Francisco Labor Council (ITO Packing), 191 NLRB 261 (1971) Section 15 describes a grievance and arbitration system. Section 17 details certain specific excep- tions to the general no-strike guarantee in the con- tract. Sections 9 and 31 of the MLA apply to the owner-operators of dump truck equipment who perform certain hauling services within the geo- graphic area covered by the MLA for the employ- er-members of Respondent AGC. Although in some instances employers use their own driver-em- ployees and company-owned equipment to haul material to and from construction sites, they typi- cally engage dump truck owner-operators to per- form such work. An employer-contractor may deal directly with an owner-operator on a specific job, but the prevailing method of procuring the services of an owner-operator involves a tripartite relation- ship among the contractor, the owner-operator, and a trucking broker known as an overlying carri- er. Under a typical arrangement, a contractor en- gages an overlying carrier to provide needed trans- portation services. The overlying carrier, in turn, provides the services contracted for either by using its own equipment, vehicles, and employee-drivers, or by using owner-operators with whom it has exe- cuted subhaul agreements. Commonly an overlying carrier has subhaul agreements with numerous dump truck owner-op- erators. In turn, an individual owner-operator usu- ally has subhaul agreements with several overlying carriers. A construction contractor, however, ordi- narily has no direct agreement with an owner-oper- ator and no control over an overlying carrier's se- lection of the owner-operator who will work for the contractor. Although bound by the terms of the subhaul agreement, owner-operators are free to refuse an overlying carrier's job referral, to leave a job prior to its completion, or to arrange for an- other owner-operator to perform the job in his stead. Pursuant to one or more subhaul agreements, an owner-operator may work on several different jobsites for several different contractors within a week or even a single day, and owner-operators remain free to perform services for other custom- ers, such as homeowners and farmers, at individual- ly negotiated rates. The primary function of owner-operators as em- ployed by construction contractors is to haul proc- essed and unprocessed materials over public roads. Under such circumstances, the activities of the owner-operator and the overlying carrier with whom he has executed a subhaul agreement are regulated by the California Public Utilities Com- mission (PUC), which establishes the minimum tar- iffs designed to reflect the costs of labor and equip- ment used for any job. Contractors, overlying car- 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD riers, and owner-operators may nevertheless nego- tiate payment of a rate higher than the PUC mini- mum according to the requirements of a specific job. When an overlying carrier refers an owner-op- erator to a contractor for a job, it bills and collects the sums due from the contractor, deducts 5 per- cent as a brokerage fee, and transmits the remain- der to the owner-operator. An owner-operator keeps his own record for billing purposes of time spent on the job and submits a freight bill based on that record to the appropriate parties. (Some con- tractors assign an employee known as a checker to maintain a separate record of an owner-operator's hours in order to verify the accuracy of the freight bill.) An owner-operator is paid in gross, with no deductions for taxes or benefits, and only for hours during which his equipment is actually in use. In contrast, employee-drivers of a contractor receive hourly computed net wages for a fixed workday, even if the company-owned vehicles are not oper- ating at all times. The dump truck equipment used by an owner- operator in performing services for a construction contractor varies, but may include a tractor, a se- mitrailer unit, a truck and transfer trailer , a semi- bottom dump trailer, a tractor with a bottom dump trailer, or a truck and pup trailer. Service equip- ment may be purchased or leased. An owner-oper- ator is responsible for all the costs of acquiring, owning, operating, maintaining, and repairing any equipment used. His costs include the basic expense of financing the purchase or lease of his equipment and the additional expenses entailed by, inter alia, PUC permits bonding, liability insurance require- ments, California licensing fees, Federal and state income and highway use taxes, and any traffic vio- lations. A contractor may employ the services of a dump truck owner-operator for a variety of construction projects, including construction of highways, resi- dential and commercial buildings, underground pas- sageways, and overhead bridges. On all projects for which their services are engaged, owner-opera- tors participate in loading, hauling, and unloading materials between two sites. In some instances an owner-operator's activity is confined to the physi- cal site of construction and contiguous property, but most often the owner-operator must haul mate- rials along a public or private right-of-way between the construction site and a noncontiguous location. If the latter type of haul originates at the construc- tion site, it typically involves removing excess ex- cavated materials or refuse to a remote dumping location, either a public dump or a private site opened by the contractor specifically for the con- struction project, or hauling broken asphalt to a crushing facility where the materials' components are separated for reuse. If the haul terminates at the construction site, it typically involves bringing ma- terial from a remote "borrow pit" opened by the contractor to obtain materials needed for the project or bringing material from a remote com- mercial source such as a rock crushing plant, as- phalt supplier, or sand or dirt pit. Additionally, an owner-operator may be engaged to haul dirt be- tween two construction sites, both of which may or may not involve the same contractor. When performing services at the construction site, borrow pit, or private dump opened by the contractor, the owner-operator is assisted in load- ing and unloading by an employee of the contrac- tor. At a remote commercial source of supply or commercial destination, loading and unloading functions are performed by the employees of the commercial entity. During onsite loading and un- loading procedures, an owner-operator ordinarily remains in his vehicle and does not converse with any employee at the site. The owner-operator re- mains solely responsible for the operation of his truck and equipment, but may receive general in- struction from a construction project superintend- ent or directional signals from a contractor's em- ployee-flagman. The total amount of time spent at any location by the owner-operator may vary, but contractors normally are cost-motivated to ensure that the owner-operator spends a minimum of time per haul. In this regard, the contractor may desig- nate the route to be followed on hauls by the owner-operator or may assign an employee-spotter to verify that the owner-operator has chosen the most efficient route. C. Contentions of the Parties The General Counsel, the Charging Parties, and Respondent AGC all contend that the provisions of MLA sections 9 and 31 are proscribed by Section 8(e) of the Act. Specifically, these parties maintain that because sections 9 and 31 apply to owner-op- erators who are independent contractors, the provi- sions are secondary in nature. They further con- tend that sections 9 and 31 are not privileged by the construction industry proviso to Section 8(e) because they are not limited to construction jobsite work. Finally, the General Counsel contends that section 31 and the subcontracting provisions of sec- tion 30 are invalid under Section 8(e) because the MLA authorizes their enforcement by use of self- help methods on the part of Respondent Unions. Respondent Unions contend that the dump truck owner-operators at issue are employees rather than independent contractors and that sections 9 and 31 must be considered primary and therefore lawful in ASSOCIATED GENERAL CONTRACTORS 701 1 nature when applied to owner-operators qua em- ployees of the employer-members of Respondent AGC. Even if the Board finds that the owner-oper- ators are independent contractors, Respondent Unions assert that sections 9 and 31 advance a le- gitimate interest in the preservation of unit employ- ment standards and are therefore primary in nature and lawful under Section 8(e) of the Act. D. Discussions and Conclusions Section 8(e) of the Act forbids parties from en- tering into a collective-bargaining agreement in which an employer agrees to refrain from dealing in the product of another employer or to cease doing business with any other person.4 It is well established, however, that contract clauses that fall within the literal proscription of Section 8(e) are nevertheless lawful if they have the primary objec- tive of preserving or protecting work performed by the employees of the employer bound by the contractual provision.5 Moreover, even clauses that are secondary in nature and therefore within the general proscription of Section 8(e) may be lawful if they satisfy the requirements for exemption under the construction industry proviso to Section 8(e). The complaint alleges that the cited paragraphs of sections 9 and 31 of the MLA violate Section 8(e) because they require signatory employers to cease doing business with dump truck owner-oper- ators on any terms other than those applicable to unit employee-drivers under the MLA. In deter- mining the merits of the complaint, we are there- fore faced with the threshold question whether the dump truck owner-operators are independent con- tractors, rather than employees, when performing work for the employer-members of Respondent AGC.6 If the dump truck owner-operators are em- ployees within the meaning of the Act, the disput- * Sec 8(e) provides in relevant part It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or im- plied, 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 containing such an agreement shall be to such extent unenforceable and void • Provided, that nothing in this subsection (e) shall apply to an agreement between a labor organization and an employer 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, struc- ture, or other work 5 National Woodwork Mfrs. Assn. v NLRB, 386 U S 612 (1967) 6 Under Sec. 2(3) of the Act, the term "employee" does not include "any individual having the status of an independent contractor " General agency principles, paramount among which is the "right-to-control," apply to the determination whether an individual is an employee or inde- pendent contractor NLRB v United Insurance Co, 390 U.S 254 (1968) ed contract provisions are primary in scope, and the complaint must be dismissed. The Board, however, has previously considered the employment status of these dump truck owner- operators. After protracted litigation of this issue in proceedings before the Board and the United States court of appeals, it has been previously determined that the dump truck owner-operators are independ- ent contractors,7 and we so find on the facts here. The owner-operator provisions found in sections 31 and 9 of the MLA require all employer-mem- bers of Respondent AGC to cease doing business with dump truck owner-operators who do not become union members and employee-drivers sub- ject to the terms of the MLA. Such provisions, ap- plied to individuals whom we have found to be in- dependent contractors, are secondary on their face.8 Moreover, the provisions on their face apply to work done both on and off the jobsite and there- fore do not fall within the protection of the con- struction industry proviso of Section 8(e).9 Never- theless, Respondent Unions argue that the disputed contractual provisions are lawful even as applied to independent contractors because they serve a valid work preservation purpose in the interest of bar- gaining unit employees. We disagree. It is well established that Section 8(e) should not be applied so literally that it bans all agreements providing for a cessation of business between em- ployers.1 ° Prohibitions on subcontracting that serve as legitimate devices for protecting the jobs customarily performed by unit employees and con- tract clauses, the primary purpose of which is to limit subcontracting of unit work to employers that maintain the same employment standards as those enjoyed by unit members, are lawful. Because a union has a legitimate primary interest in preserv- ing unit work for unit employees and in ensuring that negotiated employment standards will not be undermined or circumvented, a union may negoti- ate work preservation and union-standard clauses despite their incidental effect of limiting the group of persons with whom the primary employer may do business. It is equally well established, however, that con- tractual clauses with a primary purpose serving the general institutional interest of the union in orga- nizing or regulating the labor policies of employers with whom the union does not have a collective- See Teamsters Joint Council 42 (Irvine-Santa Fe Co.), 248 NLRB 808, 815 (1980), enfd 702 F 2d 168 (9th Cir 1983) 8 Ibid 8 See Teamsters Joint Council 42 (Irvine-Santa Fe Co.), supra. We note that Respondent Unions do not even argue that the construction industry proviso to Sec 8(e) applies to legitimize the contractual provisions 10 NLRB v Teamsters Joint Council 38, 338 F 2d 23, 28 (9th Cir 1964) 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining relationship are unlawful under Section 8(e) because they are secondary in character; that is, they are not aimed at preserving either the work or the employment standards of unit employees." Our inquiry in cases such as the present dispute, therefore, is whether the contract clauses alleged as violations of Section 8(e) have the primary purpose of protecting unit work or unit standards or, in- stead, further the broader unlawful objective of promoting the welfare of the union and its mem- bers by asserting control over the labor relations of secondary employers. The Board and the courts have consistently held that contractual clauses such as sections 9 and 31 of the MLA violate Section 8(e) of the Art. In A. Duie Pyle, Inc. v. NLRB,12 the contract at issue provided that fleet operators and truckdrivers, both independent contractors, were required to join the union and to become employees of the signatory employer as a condition of doing business with the signatory. The United States Court of Appeals for the Third Circuit, in holding that the union-securi- ty and employee status provisions disclosed an un- lawful secondary purpose, stated as follows:13 The requirement . . . mal es the central test of the employer's continuing to do business with ... an individual his internal labor policy and not his maintenance of union wage scales or similar conditions which otherwise might ad- versely affect the unit members. This is sub- stantially similar to provisions which permit an employer to subcontract only with third par- ties who are unionized. Such provisions have repeatedly been struck down under § 8(e) as implementing illegal secondary objectives. The present provisions, to the extent that they require the subcontractees to become em- ployees and members of the union, therefore must also be declared invalid. As in the case of secondary boycotts generally, a union may not employ a collective bargaining agreement with one employer as a means of effectuating its object to coerce another employer to unionize. Nor may it by this means seek to coerce self- employed persons to become union members. Similarly, in a parallel case to the present contro- versy involving parallel unfair labor practice charges leveled against parties in southern Califor- nia who had executed a master labor agreement in most relevant portions identical to the MLA, we found the union membership and employee status " NLRB Y Teamsters Joint Council 38, supra. t^ 383 F 2d 772 (3d Cir 1967) " Id. at 777-778. See Teamsters Local 66 (Carnation Co), 181 NLRB 882 (1970)., provisions unlawful in part because they failed to advance "any specific legitimate interests of bar- gaining unit employees in unit work preservation," but instead served the organizational interests of the respondent unions.14 The record in the present case discloses that con- tractors employing Teamsters' drivers employ them for onsite hauling functions other than the semi- trailers or bottom dump trucks used by the owner- operators to whom section 31 applies. The dump truck owner-operators, on the other hand, primari- ly perform nonjobsite dirt hauling, work substan- tially different in nature from that of unit employ- ees. Therefore, as in A. Duie Pyle, supra, we find that section 9 of the MLA, which on its face re- quires dump truck owner-operators engaged in nonjobsite work to become union members within a specified time or be subject to discharge by the employer, to be an unlawful secondary provision under Section 8(e) because it has no direct and le- gitimate relationship to the maintenance of unit em- ployment standards or to the preservation of unit work. For the same reasons, we find that the cited provisions of section 31, which require, both in specific terms and in aggregate effect, that the dump truck owner-operators be considered em- ployees subject to the terms of the MLA and which impose penalties for noncompliance, are equally invalid because their object and result is to force nonsignatory employers and self-employed individuals into adopting a union contract rather than merely to preserve unit work or to maintain unit standards for the benefit of unit members. In finding that sections 9 and 31 of the MLA are unlawful secondary provisions as they apply to in- dividuals herein found to be independent contrac- tors performing nonjobsite work, we need not con- sider the effect of the related self-help provisions of the MLA. However, those provisions, contained in sections 15 and 17, as related to the subcontracting provisions of section 30(A), (B), and (D) of the contract, are alleged as independent violations of Section 8(e), and we find them unlawful as well for the reasons given below. Section 30 of the MLA requires that the signato- ry employer subcontract work to be done at the site of construction exclusively to a subcontractor who will agree to comply with all the terms and conditions of the MLA. The section is clearly sec- ondary on its face since it does not merely limit subcontracting to entities that pay the economic equivalent of contractual wages and benefits, but instead requires subcontractors to become signato- 14 Teamsters Joint Council 42 (Irvine-Santa Fe Co), supra at 815. ASSOCIATED GENERAL CONTRACTORS ries to a specific collective-bargaining agreement. 15 Even so, however, because it is limited to onsite work, section 30 is protected by the construction industry proviso to Section 8(e) of the Act. This protection does not extend to any related contrac- tual mechanisms for self-help.1 a As the Board has recently17 reiterated, "[c]ontractual provisions which authorize a union to employ economic `self help' to enforce secondary subcontracting clauses are not authorized by the proviso to Section 8(e)." Our inquiry therefore centers upon the applicability of the grievance procedure of section 15 and the self-help provision of section 17 of the MLA to the subcontracting provision in section 30. The grievance-arbitration procedure established in section 15 of the MLA encompasses all disputes arising under the contract. Moreover, section 30(D) of the subcontracting provision expressly re- serves resolution of all subcontracting disputes to the procedures of section 15. Section 15(7), in turn, provides that failure of either party to a dispute to comply within 30 days with the final decision of the arbitrator or board of adjustment will relieve the other party of the duty to pursue further con- tractual remedies and authorizes institution of the self-help methods permitted by section 17. Section 17, without exception, allows slowdowns, work stoppages, and strikes in the event of a breakdown in the grievance procedure as described in Section 15(7). Thus, construed together, sections 30, 15, and 17 of the MLA by their terms contemplate a resort to direct economic action by the Union to enforce the subcontracting provisions of the MLA. In Pacific Northwest, supra, the Board construed substantially identical contractual provisions as un- lawful under Section 8(e), even though the self- help and subcontracting provisions were found in different articles of the agreement and even though the remedy sought by the union through direct economic action was the same as that which could have been achieved by judicial means. Here, sec- tions 15(7) and 17 do not by their terms exclude subcontracting disputes from that category of con- tractual disagreements which may under some cir- cumstances be resolved by self-help. We therefore find that the self-help provisions of sections 15 and 17, as applied to the subcontracting provisions of section 30 of the MLA, are violative of Section 8(e) of the Act.18 iS Operating Engineers Local 701 (Pacific Northwest), 239 NLRB 274 (1978), Teamsters (California Dump Truck Owners Assn), supra 16 Pacific Northwest, supra 11 Plumbers District Council 16 (Jamco Development), 277 NLRB 1281 (1985) 18 This finding does not impair the validity of sec 30 itself See Jamco, supra 703 THE REMEDY Having found that the Respondents have en- gaged in unfair labor practices , we shall order them to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the purposes of the Act.I9 CONCLUSIONS OF LAW 1. The employer-members of Associated General Contractors of California, Inc. are employers en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The following organizations are labor organi- zations within the meaning of Section 2(5) of the Act: Heavy, Highway, Building and Construction Teamsters Committee for Northern California, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America; and Teamsters Local Union Nos. 94, 137, 150, 216, 287, 291, 315, 386, 431, 439, 490, 533, 624, 684, 890, 912, and 980, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica. 3. By entering into , maintaining, and giving effect to the aforementioned paragraphs in sections 9 and 31 of the 1977-1980 Master Labor Agree- ment between Respondent AGC, Respondent Unions, and Respondent Teamsters Bargaining Committee, the Respondents have engaged in unfair labor practices in violation of Section 8(e) of the Act. 4. By entering into , maintaining, and giving effect to self-help provisions in sections 15 and 17 which permit self-help enforcement of section 30 of the above-mentioned Master Labor Agreement, the Respondents have violated Section 8(e) of the Act. 5. The above unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER The National Labor Relations Board orders that: A. Respondent Heavy, Highway, Building and Construction Teamsters Committee for Northern 19 We deny Charging Party CDTOA's request that we require Re- spondent Unions to reimburse any owner-operators for payment of initi- ation fees and dues, deducted contributions to union benefit funds, or income lost by reason of the enforcement of unlawful terms of the MLA In so doing, we note that no evidence has been introduced with respect to alleged losses directly attributable to actual coercion by Respondent Unions, nor has the remedial issue been expressly litigated Under similar circumstances, the Supreme Court recently held in Shepard v NLRB, 459 U S 344 (1983), that it is within the Board's remedial authority to decline to issue a reimbursement order in remedying violations of Sec 8 (e) Con- sistent with that authority, we decline to order reimbursement in the in- stant case See also Teamsters Joint Council 42 (Irvine-Santa Fe Co), supra 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD California, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica; and Respondent Teamsters Local Union Nos. 94, 137, 150, 216, 287, 291, 315, 386, 431, 439, 490, 533, 624, 684, 890, 912, and 980, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, their officers, agents, and representatives, shall 1. Cease and desist from (a) Entering into, maintaining, giving effect to, or enforcing the provisions of sections 9 and 31 of their 1977-1980 Master Labor Agreement with Re- spondent Associated General Contractors of Cali- fornia, Inc. to the extent found unlawful here. (b) Entering into, maintaining, giving effect to, or enforcing the self-help provisions of sections 15 and 17 insofar as they are applied to the subcon- tracting provisions of section 30 of the Respond- ents' 1977-1980 Master Labor Agreement. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at their business offices and meeting halls copies of the attached notice marked "Appen- dix A."2 ° Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent Unions' authorized representative, shall be posted by the Respondent Unions immediately upon receipt and maintained for 60 consecutive days in conspicuous places in- cluding all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Unions to ensure that the no- tices are not altered, defaced, or covered by any other material. (b) Sign and mail to the Regional Director suffi- cient copies of the notice for posting at the prem- ises of Associated General Contractors, Inc. and by its employer-members, if willing. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent Unions have taken to comply. B. Respondent Associated General Contractors of California, Inc., its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Entering into, maintaining, giving effect to, or enforcing the provisions of sections 9 and 31 of its 1977-1980 Master Labor Agreement with Re- spondent Unions and Respondent Teamsters Bar- 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 " gaining Committee to the extent found unlawful here. (b) Entering into, maintaining, giving effect to, or enforcing the self-help provisions of sections 15 and 17 insofar as they are applied to the subcon- tracting provisions of section 30 of the Respond- ents' 1977-1980 Master Labor Agreement. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at its places of business copies of the at- tached notice marked "Appendix B."21 Copies of the notice, on forms provided by the Regional Di- rector for Region 20, after being signed by Re- spondent AGC's authorized representative, shall be posted by Respondent AGC and its employer- members immediately upon receipt and maintained for 60 consecutive days in conspicuous places in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent AGC and its employer-members to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. CHAIRMAN DOTSON, dissenting in part. I agree with my colleagues that the Respondents violated Section 8(e) by entering into, maintaining, and giving effect to certain portions of sections 9, 30, and 31 of the Master Labor Agreement (MLA). On the issue of remedy, however, I would order the Respondents to reimburse any owner-operator for any initiation fees, dues, or any other money they may have paid as a result of the Respondents' coercive enforcement of the unlawful provisions of the MLA against them. In denying a reimbursement order, my col- leagues rely on the recent Supreme Court decision in Shepard v. NLRB, 459 U.S. 344 (1983). As they correctly note, the Court held in that case that it is within the Board's authority to deny reimburse- ment in cases where a violation of Section 8(e) is found. It is equally clear from the Court's decision, however, that an order directing reimbursement would also be appropriate where actual coercion is demonstrated. See also Carpenters Local 60 v. NLRB, 365 U.S. 651 (1961). Indeed, the Board issued just such an order in Teamsters Local 814 (Santini Bros.), 208 NLRB 184, 201 (1974). In my view, Santini Bros. represents sound policy in reme- dying overt coercive acts by which individuals are unlawfully forced to pay initiation fees, dues, and similar payments. In this regard, the Board routine- 21 See fn 20 supra ASSOCIATED GENERAL CONTRACTORS ly orders the reimbursement of initiation fees, dues, or other money paid by individuals who are re- quired to join a union pursuant to an unlawful union-security clause. Unit Train Coal Sales, 234 NLRB 1265 (1978); Crown Cork & Seal Co., 182 NLRB 657 (1970). I see no sound basis for denying a similar remedial scheme here and, accordingly, I dissent on the remedy. APPENDIX A NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT enter into, maintain, give effect to, or enforce the union-security and owner-opera- tor provisions of sections 9 and 31 of our 1977- 1980 Master Labor Agreement with Associated General Contractors of California, Inc. to the extent that such provisions violate Section 8(e) of the National Labor Relations Act. WE WILL NOT enter into, maintain, give effect to, or enforce the self-help provisions of sections 15 and 17 of our 1977-1980 Master Labor Agreement with Associated General Contractors of California, Inc. insofar as they apply to the subcontracting provisions of section 30. HEAVY, HIGHWAY, BUILDING AND CONSTRUCTION TEAMSTERS COMMIT- TEE FOR NORTHERN CALIFORNIA, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN AND HELPERS OF AMER- ICA; TEAMSTERS LOCAL UNION NOS. 94, 137, 150, 216, 287, 291, 315, 386, 431, 439, 490, 533, 624, 684, 890, 912, AND 980, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 705 WE WILL NOT enter into, maintain, give effect to, or enforce the union-security and owner-opera- tor provisions of sections 9 and 31 of our 1977- 1980 Master Labor Agreement with Heavy, High- way, Building and Construction Teamsters Com- mittee for Northern California, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Teamsters Local Union Nos. 94, 137, 150, 216, 287, 291 315, 386, 431, 439, 490, 533, 624, 684, 890, 912, and 980, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America to the extent that such provisions violate Section 8(e) of the National Labor Relations Act. WE WILL NOT enter into, maintain, give effect to, or enforce the self-help provisions of sections 15 and 17 of our 1977-1980 Master Labor Agreement with the above-named labor organizations insofar as they apply to the subcontracting provisions of section 30. ASSOCIATED GENERAL CONTRAC- TORS OF CALIFORNIA, INC. APPENDIX C SECTION 9 UNION SECURITY Each Employee covered by this Agreement who is a member of a Union designated in Section l(A)3 on the date of execution of this Agreement, or the effective date of this Agreement, whichever is later, shall as a condi- tion of employment remain a member in good standing. Any present employee working within the scope of this Agreement who is not a member of one of the aforesaid Unions, and any Employee working within the scope of this Agreement hired hereafter shall become and remain a member in good standing in the Union in the locality of the Employment Office from which he was dis- patched within eight (8) days following the commence- ment of his employment, the effective date of this Agree- ment or the date of execution of this Agreement, which- ever is later. Provided: however, that any employee, including an owner-operator subject to Section 31, who is employed on work other than work to be done at the site of con- struction, alteration, painting or repair of a building, structure, road or other work, and who is not a member of a Union as the execution date of this Agreement, shall as a condition of continued employment within 31 days after hire or the execution of this Agreement, whichever is later, become and remain a member in good standing, subject to the provisions of the proviso to Section 8(a)(3) of the National Labor Relations Act. The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employer shall be required to discharge any em- ployee pursuant to this section within 5 days after receipt of written notice by certified mail that said employee has failed to become or remain a member in good standing in the Union. SECTION 31 OWNER-OPERATOR A. Whenever owner-operator is used in this section it means owner-driver only and nothing in this section shall apply to any person or equipment except where the owner of the equipment drives the equipment in the per- formance of work covered by this Agreement for an Employer. Owner-operators obtained from persons who have no responsibility for the performance of work other than providing the service of owner-operators , or from any other source other than subcontractors as defined in Section 30, shall be included in this section if otherwise covered by the language in this section. B. Legal or equitable title to the power equipment and all licenses and permits required by any governmental agency must be in the name of the actual owner-driver. C. The Employer expressly reserves the right to con- trol the manner, time, means and details of and by which the owner-operator performs his services, as well as the ends to be accomplished, and shall be the sole judge of the capability of the owner-operator's equipment to per- form the work required to be performed and may if the Employer determines that the owner-operator 's equip- ment is not capable of performing the work required to be performed, terminate such owner-operator's services; provided, however, that the owner-operator may file and process a grievance under Section 15 hereof on the grounds that the Employer's determination that the owner-operator's equipment is inadequate was a pretext for terminating the owner-operator's services. Failure to work the day or one-half (1/2) day out, as directed, shall terminate the owner-operator's employment and he shall be paid only for actual time worked prior to such failure. The Employer shall not pay for time spent by the owner-operator in repairing, servicing or maintaining his equipment after termination of employment , or before or after his shift or half-shift, as the case may be. D. (1) The owner-operator shall be carried on the pay- roll of the Employer as an Employee, subject to the pro- visions of Subsection 0 below, and as such, all the terms and conditions of this Master Agreement and any amend- ment or amendments thereto shall be applicable to him except as provided elsewhere in this section and except that in the event that it is determined that the services of an owner-operator were terminated without just cause, any payment for time lost shall be limited to the wage and fringe benefit payments provided in this Agreement, and shall not in any event include any payment with re- spect to the equipment or the loss of use thereof; and except, further, that the owner-operator shall not be sub- ject to the provisions of Sections 3 and 32. (3) Any Employer who fails to place an owner -opera- tor on the payroll as required by paragraph D (1) above may be penalized through the grievance procedure in an amount not to exceed one hundred dollars ($ 100) per day for each such violation, such penalty to be paid into the Construction Teamsters Health and Welfare Trust Fund for Northern California. The Union shall have access to the Employer's payroll and other pertinent records for the drivers involved , upon reasonable request. H. The owner-operator shall provide and shall have sole responsibility for gasoline, oil, grease, tires , tubes, repairs and any other items necessary to operate his equipment . He shall have complete freedom to purchase any such items at any place where efficient service and satisfactory products can be obtained at the most favor- able prices. J. The provisions of this section have been negotiated and agreed upon by and between the parties for the ob- jects and purposes expressed in Subsection M of this sec- tion. The parties have not undertaken to negotiate for the Employees any profit whatsoever for the leasing and rental of the equipment they drive. On the contrary, compensation for the equipment shall be set by Agree- ment between the Employer and the owner -operator at a level which will not circumvent or defeat the payment of wages, fringes and conditions of any Employee cov- ered by this Master Agreement and which will assure compensation to the owner-operator of not less than the actual cost of operation of such equipment. L. It is further understood and agreed that any ar- rangements which have heretofore been entered into be- tween employees (owner-operator) either among them- selves or with an Employer or with aid of an Employer applicable to owner-operator equipment contrary to the terms hereof shall be dissolved or modified within thirty (30) days after this section becomes effective so that such arrangements shall conform to this Section . In the event that the parties to such an arrangement cannot agree upon a method of dissolution or modification of such an arrangement to make the same conform of this section, the question of dissolution or modification shall be sub- mitted to the grievance procedure under Section 15 hereof. M. It is further mutually understood and agreed that the intent of this section is to assure the payment of wages, fringes, and conditions as provided in this Master Agreement and to prohibit the making and carrying out of any plan, scheme or device to circumvent or defeat the payment of wages, fringes and conditions as provid- ed in this Master Agreement. N. It is further agreed that the Employer will not devise or put into operation any scheme , whether herein enumerated or not, to defeat the terms of this section of this Master Agreement . . . . 0. An owner-operator shall be required to be placed on the payroll of an Employer commencing on the first working day if he works more than four (4) hours for such Employer, and on the second working day if he works less than four (4) hours for such Employer on the first day. For purposes of this provision, four (4) hours of work or less during a working day if the owner-oper- ASSOCIATED GENERAL CONTRACTORS ator has not ;ireviously worked on the particular job. Rotation of owner-operators on a particular job to cir- cumvent the provisions of this section shall be a violation of this Agreement and subject to the penalties as provid- ed in paragraph D(3) above. SECTION 15 GRIEVANCE PROCEDURE All disputes arising under this Agreement shall be re- solved in accordance with the following procedures: (1) An Employee having a dispute shall first attempt to resolve said dispute with his immediate supervisor. If the dispute is not thereby resolved, it shall be referred to the Union in the locality . The Union shall attempt to settle the dispute with the Employer. (2) If the Union and the Employer are unable to resolve the dispute, it shall be referred to the Board of Adjust- ment. (3) The Board of Adjustment shall be composed of two (2) members named by the Committeee, two (2 ) members named by the Association and an Impartial Arbitrator. The two (2) members named by the Committee and the two (2) members named by the Association shall be se- lected by each party from eight (8) members panels pre- viously designated by each party as provided below. The parties shall agree to procedures for selection of the Im- partial Arbitrator; provided, however, such Impartial Ar- bitrator will be bound by the rules and procedures set forth below Each party to the contract shall name its eight (8) member panel within sixty (60) days after the signing of this contract . The failure of either party to so name its members shall act to release the other party of its duties under this section until such time as the members are ap- pointed. Each party may establish its own rules governing the selection and replacement of its panel members ; provid- ed, however, that each party must give prior notification in writing to the other of the appointment of new panel members. (4) The Board of Adjustment shall have an Impartial Ar- bitrator participate in all of its deliberations . However, the parties by mutual agreement may excuse the Impar- tial Arbitrator from participation in any case and the Board of Adjustment may then render a decision by ma- jority vote . If such Impartial arbitrator is not present at such determination of a case by the Board, he shall par- ticipate thereafter in any deadlocked case or cases and his decision shall be final and binding . Pending a decision by the impartial Arbitrator , work shall be continued in accordance with the provisions of this Agreement. (5) In addition to any rules or procedures which the par- ties may adopt, the Board of adjustment shall be gov- erned by the following provisions: (a) No attorneys shall be utilized except if purely legal issues are involved. (b) No briefs shall be submitted nor a transcript made of the hearing except by mutual agreement of the parties. (c) The Arbitrator shall render his decision upon the conclusion of the case at the Board of Adjustment hear- 707 ing unless the time is extended by mutual agreement of the parties or at the request of the Arbitrator . The Arbi- trator shall not render an expanded opinion in any case unless mutually requested by the parties. (d) The parties shall select and utilize Impartial Arbi- trators who are willing to abide by the procedures set forth herein. An appropriate list of arbitrators shall be se- lected by the parties. The parties shall establish proce- dures for selecting an individual Arbitrator to hear cases. (6) It is understood and agreed by and between the par- ties that the following classes of disputes are not subject to the provisions of this section and that, except as other- wise provided in this Agreement , each party shall have the right to take such legal and economic action as it may deem proper to resolve said dispute. (a) Disputes arising out of a violation of the hiring provisions of Section 3 unless by mutual agreement of the Employer and the Union; (b) Disputes arising out of the failure of an Employer to meet the payroll for Employees covered by this Agreement; (c) Disputes arising because a payroll check issued by an Employer to an Employee is dishonored; (d) Disputes arising out of jurisdictional conflict which is governed by Section 21. (7) The failure of the Board of Adjustment to hear a dis- pute properly before the Board, having been requested to do so by the moving party, or the failure of either party to comply within thirty (30) days with a final deci- sion by the Board of Adjustment or the Arbitrator, as the case may be, shall relieve the other party of the duty to further comply with the provisions of this section. (8) Decisions of the Board of Adjustment or an Impartial Arbitrator shall be within the scope and terms of this Agreement and shall be final and binding upon all parties hereto, provided such decision is specifically limited to the matter submitted and does not amend any provisions of this Agreement. (9) The expenses of employing an Impartial Arbitrator including the cost of a court reporter, if required, shall be borne equally by the parties. (10) No proceedings hereunder based on any dispute, complaint or grievance herein provided for, shall be rec- ognized unless called to the attention of the Employer and the Union or the Local Union, within forty-five (45) days after the alleged violation was committed. The Board of Adjustment may, by majority vote, for good cause, accept a late submission. In discharge and suspension cases the Union must submit the grievance within seven (7) working days after receiving the written notice thereof, as provided in Sec- tion 7. Discharge and suspension cases shall be placed on the agenda of the Board of Adjustment which is next scheduled after the submission of the grievance. (11) The Board of Adjustment shall establish regular meeting dates and administer grievances filed in conjunc- tion with this section as set forth in the rules and proce- dures. 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All disputes filed with the Board of Adjustment must be submitted to said Board of Adjustment on the official disputes form adopted by the Board of Adjustment. SECTION 17 NO CESSATION OF WORK (A) Subject to the exceptions hereinafter set forth nei- ther the Committee nor any Union will authorize a strike, slow down or work stoppage with respect to any dispute arising out of the terms and conditions of this Agreement. (B) Slow downs, work stoppages, strikes and with- drawal of Employees covered by this Agreement in con- nection with one of the following classes of dispute shall not be a violation of this Agreement. (1) Disputes arising out of the failure to comply with the provisions of Section 3 of this Agreement. (2) Disputes arising out of the failure of an Employer to meet his payroll for Employees covered by this Agreement. (3) Disputes arising because a payroll check issued by an Employer to an Employee is dishonored. (4) Disputes arising out of the failure of an Employer to make the contributions required by Section 26, Sec- tion 27 of Section 28, provided the Employer shall have been given seventy-two (72) hours notice of his delin- quency due to his failure to make contributions. (5) Whenever the Union has been excused from fur- ther performance of its obligations under Section 15. (6) Disputes arising out of the Employer's failure to comply with the provisions of any clause similar to Sec- tion 3 herein in any other agreement between the Asso- ciation and any other union. (7) Disputes arising out of Section 31(D)(3). (C) Neither the Association nor any Employer will au- thorize any lockout, slow down or work stoppage with respect to any disputes arising out of the terms and con- ditions of this Agreement. SECTION 30 SUBCONTRACTING A. A Subcontractor is defined as any person, firm or corporation other than a single owner-operator who agrees with the Association or with an Employer, or with a subcontractor of an Employer, to perform any part or portion of the construction work covered by this Agreement or by the Prime Contract, including the op- eration of the equipment, performance of labor, installa- tion of materials and delivery, loading and unloading of material, other than a supplier who is not performing covered work on the job site. A person, firm or other business entity who performs the function of a broker in supplying owner-operators to the Employer is not a sub- contractor within the meaning of this provision unless he otherwise satisfies the above-stated requirements. Owner- operators obtained from brokers or others who are not subcontractors shall be subject to the provisions of Sec- tion 31. B. With respect to work performed within the geo- graphical area covered by this Agreement at the site of construction, alteration, painting or repair of a building, structure, road or other work, the following shall apply: (1) This provision is applicable only to an Employer who has employed persons covered by this Agreement during the term hereof or during the term of the prede- cessor Agreement, or who has or has had persons cov- ered by this Agreement on its seniority list during any such period of time. (2) An Employer to whom this provision is applicable shall subcontract work covered by this provision only to a person or firm who will agree to comply with all the terms and conditions of this Agreement. The subcontrac- tor shall be considered an Employer on the project where the work is performed irrespective of whether such person or firm is signatory to this Agreement. C. (1) The Employer further agrees that when subcon- tracting work covered by this Agreement which is to be performed within the geographical area covered by this Agreement, but which is not to be performed at the site of the construction, alteration, painting or repair of a building, structure, road or other work, he will subcon- tract such work only to an Employer or person who agrees that the persons performing such work including owner-operators, will work in accordance with the schedule of hours and be paid in an amount, separate and apart from the use of any equipment, which is equal to the wage rates including overtime and premium pay pro- vided in this contract for appropriate classifications, and in addition will receive all other economic benefits as provided in this contract, including without limitation, holidays and vacations which are at least equal to those available to Employees under this contract, provided, however, that with respect only to the Pension Benefits under this contract, the obligation of the subcontractor shall be satisfied if he makes a payment to the person performing the work in an amount equal to the Employ- er contribution required for such work. Payment of the amount due persons performing work under this provision shall be made weekly by a separate check which shall not include any sum for the use of equipment, and a check stub shall be given to such person showing, by appropriate breakdown of the total, that the check includes the equivalent of the sum of money that would be due under this Agreement for the classification involved. (2) With respect to Health and Welfare Benefits, the obligation of the subcontractor shall be satisfied if he makes a health and welfare plan available to the persons performing such work for him and contributes an amount to such plan which is equivalent to or greater than the Health and Welfare contributions required of the Employer under this Agreement, or if he makes a payment to the persons performing such work for him in an amount equal to the Employer Health and Welfare contribution required under this Agreement. (3) The provisions of paragraph C of Section 30 shall also be applicable to the subcontracting of work to be performed at the site of construction, alteration, painting or repair of a building, structure, road or other work in cases of such subcontracting where Section 30,B is not applicable. ASSOCIATED GENERAL CONTRACTORS D. The Employer will give written notice to the Union of any subcontract involving the performance of work covered by this Agreement, within five (5) days of entering into such subcontract, and shall specify the name and address of the subcontractor. Any Employer who gives such notice and requires the subcontractor to agree to comply with and observe the provisions of Sub- section B hereof with respect to the job site work, and Subsection C hereof with respect to work performed other than at the job site work, and Subsection C hereof with respect to work performed other than at the job site, shall not be liable for any delinquency by such sub- contractor in the payment of any wages, fringes, benefits or contributions provided herein except as provided hereinafter. In the event a Local Union questions compliance by a subcontractor with the provisions of this section, the Union shall so notify the Employer in writing and the Employer shall furnish to the Union within fifteen (15) days a written itemized record of all pertinent informa- tion. Additionally, where itemized payroll records are re- quired for submission to public contracting agencies on behalf of subcontractors, the Employer shall furnish 709 copies of such submission to the Union upon written re- quest. If thereafter any subcontractor shall become delin- quent in the payment or meeting of the obligations set forth above, the Union shall promptly give written notice thereof to the Employer and subcontractor speci- fying the nature and amount of such delinquency. More than one such notice may be given with respect to delin- quencies . If such notice is given, the Employer shall withhold the amount claimed to be delinquent out of any sums due and owing by the Employer to such subcon- tractor and shall pay and satisfy therefrom the amount of such delinquency by such subcontractor as follows: If such subcontractor does not dispute the exist- ence or amount of such delinquency, the Employer shall forthwith pay the amount of such delinquen- cies to the person or fund entitled thereto. Any dis- pute as to the existence or amount of such delin- quency shall be settled by the Union and subcon- tractor as provided in Section 15 hereof and the Employer shall pay to the person or funds entitled thereto the amount of such delinquency as so deter- mined and costs incurred.