Associated General Contractors Of Minnesota

522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Associated General Contractors of Minnesota and Independent Construction Truck Owners, Inc. Construction, Building Material, Ice and Coal Driv- ers, Helpers, and Inside Employees Union, Local No. 221, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen, and Helpers of America, AFL-CIO" and Independent Construction Truck Owners, Inc. Construction, Building Material, Ice and Coal Driv- ers, Helpers, and Inside Employees Union, Local No. 221, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen, and Helpers of America, AFL-CIO and Park Construction Company and Associat- ed General Contractors of Minnesota Construction, Building Material, Ice and Coal Driv- ers, Helpers, and Inside Employees Union, Local No. 221, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen, and Helpers of America, AFL-CIO and Associated General Contractors of Minne- sota Construction, Building Material, Ice and Coal Driv- ers, Helpers, Inside Employees Union, Local No. 221, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, AFL-CIO and Park Construction Company . Cases 18-CE-43, 18- CE-44, 18-CB-1134, 18-CC-896, 18-CC-898, and 18-CE-47 July 29, 1988 DECISION AND ORDER BY CHAIRMAN JOHANSEN AND MEMBERS BABSON AND CRACRAFT On June 15, 1982, Administrative Law Judge Walter H. Maloney Jr. issued the attached decision. The Charging Party/Respondent Associated Gen- eral Contractors of Minnesota (AGC) filed excep- tions and a supporting brief, Respondent Construc- tion, Building Material, Ice and Coal Drivers, Helpers, and Inside Employees Union, Local No. 221, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Help- ers of America (the Union) filed exceptions and a supporting brief, and Charging Party Independent Construction Truck Owners, Inc. (ICTO) filed ex- ceptions and supporting brief. 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,2 and conclusions,3 and to adopt the recommended Order.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that Respondent Associated Gen- eral Contractors of Minnesota, Minneapolis, Minne- sota, its officers, agents, successors, and assigns, shall take the action set forth in the Order, and that Respondent Construction , Building Material, Ice and Coal Drivers, Helpers, and Inside Employees Union, Local No. 221, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, AFL- CIO, its officers, agents, and representatives, shall take the action set forth in the Order. 2 The Charging Party/Respondent AGC has excepted to some of the Judge's credibility findings The Board's established policy is not to over- rule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are in- correct 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 8 We shall conform the judge's Conclusion of Law 6 to the violations found Accordingly, we substitute the following for the last phrase of that conclusion of law. "the Respondent Union violated Section 8(b)(4)(iiXA) and (B) " 4In adopting the judge's recommended remedy and Order, we find that in the circumstances of this case it would not effectuate the policies of the Act to provide a reimbursement remedy . See Shepard v NLRB, 459 U S. 344 (1983); Associated General Contractors, 280 NLRB 699, 703 In. 19 (1986). See also Teamsters Joint Council 42 (Irvine-Santa Fe Co.), 248 NLRB 808 (1980) Robert G. Sykes, Esq., for the General Counsel. Stephen D. Gordon and Bruce A. Finzen, Esqs., of St. Paul, Minnesota, for the Respondent Teamsters Local 221. David R. Hols and Charles F. Bisanz Jr., Esqs., of Minne- apolis, Minnesota, for the Charging Party Independent Construction Truck Owners, Inc. Timothy A. Sullivan, Esq., of St. Paul, Minnesota, for the Associated General Contractors of Minnesota, for the Respondent and the Charging Party. DECISION STATEMENT OF THE CASE WALTER H. MALONEY JR., Administrative Law Judge. These cases came for hearing before me in Minneapolis, Minnesota, on a consolidated unfair labor practice com- plaint,' issued by the Regional Director for Region 18, ' Charge filed by Independent Construction Truck Owners, Inc (ICTO), against Respondent Associated General Contractors of Minneso- ' On November 1, 1987, the Teamsters International Union was read - to (AGC), on July 3, 1980, in Case 18-CE-43; charge filed against Con- mitted to the AFL-CIO. The caption has been amended to reflect that struction, Building Material, Ice and Coal Drivers , Helpers, and Inside change. Continued 290 NLRB No. 66 ASSOCIATED GENERAL CONTRACTORS which alleges that Respondent Teamsters Local No. 221 violated Section 8(e), 8(b)(3), and 8(b)(4)(i), and (ii)(A) and (B) of the Act, and that Respondent Associated General Contractors of Minnesota (AGC),2 violated Sec- tion 8(e) of the Act. More particularly, the consolidated complaint alleges that the Respondents , as well as Park Construction Company , an individual signatory, entered into an unlawful "hot cargo" agreement, called the Memorandum of Understanding, in which they agreed to apply the union-security provision in an areawide multi- employer agreement to independent contractors , agreed to pay fringe benefits to a union-management trust fund for independent contractors , gave the Respondent Union the preferential right to refer independent contractors to members of the Respondent Employer Association, set wage rates for independent contractors employed by members of the Respondent Association , and applied to the Memorandum of Understanding a grievance proce- dure that unlawfully permitted self-help . The consolidat- ed complaint also alleges that the Respondent Union en- tered into an illegal no-subcontracting agreement with Park in violation of Section 8(e) of the Act, and that it interpreted a provision in the expired master area agree- ment with Park and other members of the AGC in such a manner that the Union would be able to engage in a work stoppage to enforce provisions of the agreement that were or might otherwise be valid under the provi- sions of Section 8(e). The consolidated complaint also al- leges that the Respondent Union , in fact, engaged in a work stoppage to enforce no-subcontracting restrictions in the Memorandum of Understanding. It further alleges that, in the course of collective -bargaining negotiations leading to a new contract, the Respondent Union illegal- ly demanded a contractual restriction against subcon- tracting that would violate Section 8(e) of the Act and that it threatened to picket employer members of AGC to obtain such a contract clause . The consolidated com- Employees Union, Local No 221 , affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, AFL-CIO (Teamsters or the Union), in Case 18-CE-44 on July 3, 1980; charge filed against Respondent Teamsters by AGC and Park Construc- tion Company (Park), on April 3, 1981, in Case 18-CB-1134; charge filed against Respondent Teamsters by AGC and Park on April 3, 1981, in Case 18-CC-896; charge filed against Respondent Teamsters by AGC on April 22, 1981, in Case 18-CC-898; charge filed against Respondent Teamsters by Park in Case 18-CE-47 on April 22, 1981. Consolidated complaint issued by the Regional Director for Region 18 against Respondent AGC and Respondent Teamsters on April 30, 1981, Respondent Teamsters' answer filed on May 19, 1981, Respondent AGC's answer filed on May 29, 1981, case heard before me in Minneapo- lis, Minnesota, on December 1-4, 1981, and January 18-25, 1982, briefs filed with me on or before April 30, 1982. 2 Respondents admit, and I find, that, during calendar year 1980, em- ployer members of Respondent AGC performed services within the State of Minnesota valued in excess of $50 ,000 and purchased and received at their facilities in the State of Minnesota directly from points and places located outside the State of Minnesota goods and merchandise valued in excess of $50,000 At all times material , Park is and has been a Minnesota corporation that maintains its principal place of business in Minneapolis, Minnesota, where it is engaged in the highway and heavy construction business as a general contractor . During the course of 1980, Park pur- chased at its Minneapolis, Minnesota place of business directly from points and places located outside the State of Minnesota goods and mer- chandise valued in excess of $50 ,000 Accordingly, both AGC and Park are, respectively, employers engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the Act. Respondent Teamsters is a labor organi- zation within the meaning of Sec . 2(5) of the Act 523 plaint alleges that the Respondent Union engaged in an illegal secondary boycott by threatening a work stop- page at a Park jobsite and by picketing Park, and, in fact, struck Park during a contract term to obtain a modifica- tion of an existing collective-bargaining agreement. The Union maintains that the independent truck owners- whose status was drawn sharply into issue in this case- are, in fact, the employees of the various AGC members who employ them from time to time, and that it was lawful to bring pressure on AGC to bring independent truck owners (ITOs) under the union-security provisions of the collective-bargaining agreement with AGC mem- bers and otherwise to negotiate terms and conditions of employment with AGC concerning such individuals. Re- spondent also denies commission of any violations of Section 8(b)(4) and 8(b)(3) and asserts that the strike and picketing of Park was lawful primary activity aimed at enforcing the grievance and arbitration provisions of an existing collective-bargaining agreement, which agree- ment permitted strikes under certain limited circum- stances during the contract term . 3 On these conten- tions-and particularly the contentions with respect to the status of independent truck owners-the issues here were drawn.4 FINDINGS OF FACT 1. THE ALLEGED UNFAIR LABOR PRACTICES For many years the highway and heavy construction industry (highway and heavy) in the Twin Cities area and in all of central Minnesota has been dominated by the two Respondents in this case, the Associated General Contractors of Minnesota (and its employer member) and Teamsters Local 221. AGC has both bound and unbound members.5 The former bargain collectively with the Teamsters and other labor organizations on a multiem- ployer basis, while the latter, who are also members in good standing of AGC, either refuse to participate in collective-bargaining negotiations at all or elect to sign, as individual signatories, one or more of various s Certain errors in the transcript have been noted and corrected. 4 Several posttrial motions were made to me and are resolved as fol- lows: 1. Counsel for Respondent Teamsters have moved that certain data re- lating to the business of Jacobs Trucking Company with Rauenhorst Construction Co., which was obtained following the close of the trial in this case as a result of a subpoena enforcement proceeding , be admitted into evidence in this case . Specifically, they request that the data set forth in par 5 of their motion, dated April 30, 1982, be admitted into evidence The motion is granted. 2 Counsel for Respondent Teamsters have also moved to strike the re- buttal testimony of witness Keith Kramer on the ground that such testi- mony was improper rebuttal. The motion is denied However , I discredit all the testimony of witness Kramer, both on direct and rebuttal, unless the testimony was corroborated , because of admittedly untruthful testi- mony given by Kramer at the hearing (Tr 2264, 2294-2295) The 1978-1981 agreement between AGC and the Teamsters involved 74 bound AGC members and 64 other members who signed the master agreement individually The 1981-1984 agreement covered 33 bound AGC members and 15 others who signed individually Park , a charging party in this case, is an influential member of AGC but, in recent years, has elected to sign the area agreement with the Teamsters on an individ- ual basis Teamsters Local 221 has in excess of 2000 members, of whom 650-700 are employed in the highway and heavy industry Of this number, about 200-250 are unionized ITOs. 524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD areawide agreements that are worked out by the AGC Labor Relations Committee and the various unions it recognizes. Drivers who are engaged in the highway and heavy industry may be conventional employees who op- erate company equipment. They may also be multiple truck owners (MTOs) who drive their own equipment, who employ one or more individuals to drive equipment owned by the MTOs. The status of ITOs and MTOs lies at the heart of this dispute. For a number of years, MTOs and ITOs were covered by the terms of the 3-year agreements, which were nego- tiated by the AGC and the Teamsters. The more recent agreements, including the 1978-1981 agreement that was in effect when the events in this case arose, make only a few references to ITOs. Specifically, they provided that an employer could hire employees who own their own equipment or who operate equipment belonging to some- one other than the general contractor and that such "em- ployees" would be covered by all the terms and condi- tions of the master agreement, except seniority. The master agreement also provided that the rate of rental for ITO or MTO equipment was outside its scope. It also provided that general contractors were obliged to pay overload fines imposed on ITOs for exceeding the legal load limits on public highways and, if a contractor failed to pay fringe benefits called for by the agreement, he could be required to pay the ITOs with two checks, one for wages and the other for truck rental. Over the years many general contractors, both those covered by AGC-Teamsters agreements as well as those who operated strictly on a nonunion or open shop basis, began to hire ITOs through the use of truck brokers.6 The names of Jacobs Trucking Company, and its owner, Sy Jacobs, Buesing Brothers Trucking, Inc., and Rucki Trucking Company, figure most prominently in these proceedings as brokers, although there are other brokers who perform the same function on a smaller scale in the Twin Cities area. These brokers also subcontract truck- ing jobs, using their own vehicles and their own employ- ees. ITOs are employed strictly on a day-to-day basis and are referred from job to job each day during the construction season.? As more fully described later in this decision, it is the function of the broker to match a contractor's daily requirements with truckers drawn from the ranks of ITOs who have requested referrals. For this service, the broker normally charges a commis- sion amounting to 10 percent of the hourly rate paid by the contractor to the trucker. While at one time almost all ITOs referred to con- struction jobs in the Twin Cities area were Local 221 members, the Union began to notice that the number of unionized truckers in the highway and heavy industry was in decline, as was the number of conventional com- pany drivers, while the number of nonunion drivers uti- lizing the services of truck brokers began to increase. It cites several reasons for a decline in the employment of 6 In this decision, the term ITOs will henceforth be normally used to include MTOs as well since, with rare exception, the same facts and cir- cumstances pertaining to one affect the other ' In Minnesota, the construction season begins in mid-May and usually lasts until sometime in November It normally has about 100 working days union members generally in this industry. Among them are the winding down of the Federal highway construc- tion program and poor overall economic conditions, as well as a growing practice on the part of some contrac- tors to hire ITOs rather than to employ company drivers on company seniority lists to drive company equipment. There is some evidence in the record suggesting a belief on the part of some general contractors that it cheaper in the long run to employ ITOs than to operate company- owned trucks with company drivers. The specter of union members getting a smaller piece of a shrinking pie prompted the Respondent Union to take the actions that gave rise to this case. On August 1, 1979, Holzschuh Truck Leasing Compa- ny filed an 8(b)(4)(A) and (B) charge against Local 221 in Case 18-CC-804. In this charge, Holzschuh alleged that the Union was unlawfully pressuring certain general contractors, such as McCrossan, Johnson, and Bel-View, to apply the terms of the master AGC-Teamsters agree- ment to owner-operators (ITOs). Specifically, Holzschuh objected to the demands by the Union that ITOs, who are hired on a daily basis to supplement an employer's regular cadre of company drivers, be brought under the provisions of the same union-security clause that applies to company drivers. This case (referred to here as the Holzschuh case), was referred by the Regional Office to the Division of Advice (Advice) in the Office of the General Counsel in Washington, D.C., for a determina- tion whether to issue an unfair labor practice complaint. On or about November 29, 1979, Advice notified the Regional Office that this charge (and others which had been filed alleging essentially the same thing) should be dismissed because, in the view of Advice, ITOs were employees, not independent contractors, so the activity about which Holzschuh complained was simply lawful primary activity aimed at organizing the unorganized or at enforcing the provisions of the union-security clause. The dismissal of the charge in the Holzschuh case was appealed by Holzschuh to the Office of the General Counsel and was reviewed a second time, on this occa- sion by the Office of Appeals (Appeals). By memo dated March 26, 1980, Appeals took the same position as did Advice and directed the Regional Director to dismiss the pending charge. Thus, for the second time in a period of 6 months, the General Counsel of the Board determined that the owner-operators, whose status is in question in this case, were employees concerning whom certain pressures might lawfully be exerted by the Union be- cause the pressures were primary in character. Armed with this official determination concerning the status of ITOs, Respondent Teamsters began to take cer- tain actions about which the General Counsel now com- plains. It wrote letters to several leading contractors who had been employing nonunion ITOs referred by brokers. It objected to the fact that these contractors had been employing individuals who were not members of the Union in violation of the union-security clause in the master agreement and further objected to the fact that these contractors had not been making payments to the health and welfare and retirement funds for the nonunion ITOs they had been employing. The Union threatened ASSOCIATED GENERAL CONTRACTORS arbitration to collect from the contractors union dues that were owed to the Union by the nonunion "employ- ees" they had been using , and to collect fringe benefit payments that were due under the master agreement for all trucking employees. Although the potential liability of the several contractors involved in these claims was never actually determined , AGC admits that this poten- tial liability, taken together with an official determination that ITOs were employees within the meaning of the Act (and presumably within the meaning of the master agreement), were sufficient incentives to prompt several leading contractors to enter into negotiations with the Teamsters, under the watchful eye of the AGC, respect- ing the terms and conditions of employment of ITOs during the 1980 construction season. These negotiations ultimately led to the execution of a Memorandum of Understanding on April 25, 1980.8 Sev- eral unbound members, including Park, signed the memorandum at later dates. The agreement expressly re- cited that it was being entered into to resolve a dispute that had arisen because of the determination by Advice that independent truck operators and multitruck opera- tors were employees. It extended to ITOs and drivers for MTOs (who, in many instances, were also the truck owners themselves) the provisions of the union -security clause in the master agreement. It set forth a further pro- vision that ostensibly gave the Union "equal opportuni- ty" to refer trucks to general contractors but which, in fact, gave the Union preference in referring trucks. It ob- ligated contractors to call the Union first with a request for trucks. Only thereafter might a contractor call other sources when the Union was unable to provide the number and type of trucks that were requested. The memorandum obligated all contractors to pay fringe benefits for all ITO and MTO drivers they might employ, regardless of source, and to pay no less than the prevailing rental rates for trucks and drivers for the type of trucks employed. 9 It also released contracting em- ployers from liability for union dues and fringe fund pay- ments that the Union had claimed were due and owing by virtue of the previous failure of these employers to apply the union-security provisions of the master agree- ment and make fringe fund contributions for truckers whom they had hired because of the assumption that such individuals were independent contractors. After making preliminary inquiries among its members whether they wished the Union to establish a hiring hall, the Union instituted the operation of a referral system for ITOs beginning in the spring of 1980. This referral 8 William Gary, the executive director of the AGC and the principal negotiator of its labor agreements, studiously avoided any official connec- tions with the discussions that took place during the winter of 1979-1980 leading up to the signing of the Memorandum of Understanding. He ulti- mately signed the memorandum at the insistence of two prominent mem- bers of the AGC, who were told by the Teamsters that the Union would not sign the document unless Gary signed , thereby lending to it the offi- cial approval of the AGC. 9 Union President Paul Bailey sent a memo to union contractors notify- ing them that the Union had set up a hiring hall for independents and stating further that the rental rate for the 1980 season would be $29 per hour, plus fringe benefits His memo indicated also that the ITOs referred by the Union would bill the contractors directly and that a minimum of 4 hours work would be required of any contractor who hired a truck through the union hiring hall. 525 system operated actively during the 1980 season and, at the height of the season, referred 30 or more drivers in a workday. The net effect of the operation of the union re- ferral system was to reduce the business of brokers such as Jacobs, Buesing, and Rucki. It also had an adverse economic impact on nonunion independent truckers, all of whom were theoretically eligible to be referred through the union hall (and in accordance with the rate established by Bailey's May 9 memorandum) but most of whom sought daily employment with general contractors either through brokers or through direct solicitation. It should be noted that the rates normally paid to truckers referred by brokers differed slightly from the rate estab- lished by the Union. In 1980, the owner of a brokered tandem dump truck normally charged $30 per hour, of which 10 percent was retained by the broker. However, no fringe benefits (amounting to $1.30 an hour during 1980) were paid by the broker, whereas the union rate was $29 plus fringes. Moreover, having referred a driver through its hall, the Union was then in a position to police the provision of the union-security clause in the master agreement, which required membership after the eighth day of employment at a jobsite . Brokers referred both union members and nonmembers alike without con- cern for membership status . When this system came into full operation in the summer of 1980, nonunion truckers formed the ICTO, an organization having approximately 150 members, and filed some of the charges that resulted in the consolidated complaint in this case.10 On February 11, 1981, the Union and AGC met in the first of several negotiating sessions that led up to the exe- cution of the 1981-1984 master agreement . At this time, the ICTO charges against the Union were pending in Advice to which they had been referred by the Regional Office, and the parties to the negotiations were operating under an assumption, if not a total agreement, that ITO and MTO drivers were employees within the meaning of the Act. The Memorandum of Understanding was still in effect and would expire of its own terms on April 30, the same day that the 1978-1981 agreement was shceduled to expire. The opening session of negotiations in this industry were described by one participant as a "ha ha " session, during which the parties exchanged proposals, examined the demands of the other party in cursory fashion, and in general express to opposing negotiators the thought that there is no way that their demands will be accepted. The purpose of the first few sessions is simply to "sniff out" the other party and determine what it really wants and what items among its proposals it may be willing to abandon. Serious negotiating sessions come later as the expiration date of the old contract draws near and a new construction season approaches. There is little doubt that union representatives ada- mantly insisted at the first negotiating meeting on the in- clusion in the forthcoming agreement of language satis- factory to itself respecting ITOs and the subcontracting of work. At the second session, held on March 3, 1981, 10 During the summer of 1980, the Union did an aggressive job of checking construction sites and of insisting to contractors and truckers alike that ITOs employed on those sites carry union cards. 526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Union Secretary-Treasurer Chris Van Lith offered man- agement a proposal that stated that "for the preservation of work, there shall be no subcontracting of any work covered under the classifications of this agreement." The actual agreement, concluded before the expiration date of the old contract and formally executed in May 1981, contains no provision forbidding the subcontracting of work. The present contract does contain a "union stand- ards" provision governing subcontracted work to be per- formed at the jobsite.11 These provisions were included because, during the time that elapsed between the com- mencement of negotiations and the conclusion of the agreement, the Office of the General Counsel had re- versed its earlier determination and had concluded that ITOs are, in fact, independent contractors and not em- ployees within the meaning of Section 2 (3) of the Act. Hence the Union chose to abandon Van Lith's proposal. On March 23, 1981, Advice notified the Regional Office and presumably the parties that, based on a re- vised assessment of the status of ITOs, it was authorizing the issuance of an unfair labor practice complaint on the 8(b)(4) and 8(e) charges filed in 1980 by ICTO and others. 12 On receipt of this opinion, counsel for the Union immediately informed the Regional Office and the AGC that the Union would be willing to settle the tem- porary injunction aspect of the proposed 8(b)(4) and 8(e) complaint, but that it would not concede the merits of the new Advice determination or admit the commission of any unfair labor practices. Union counsel also in- formed the Regional Director that Local 221 would not thereafter attempt to enforce the provisions of the Memorandum of Understanding, an agreement which at that point had slightly more than one month to run. Pre- sumably, its bargaining posture in pending negotiations was similarly revised, as the results of the bargaining re- flect an attempt to adhere to the theory that ITOs are independent contractors, not employees. Union President Bailey testified that, during the winter and early spring of 1981 , he received calls from several company drivers on the seniority list at Park inquiring about when they might be called back to work. Bailey 11 In addition, the present contract does contain a provision relative to the involvement of primary contractors in the mediation of disputes aris- ing between its subcontractors and the Union (art. 16) and a section con- cerning ITOs, referred to as individual truck owners (schedule 4). The latter section severely modified the provision in the former Memorandum of Understanding concerning referrals , stating only that the Union agreed to continue to refer ITOs when requested and leaving it to employers to utilize this service or not as they chose. Schedule 4 also provides that the Union reserved the right to request bargaining concerning ITOs if and when a court of final resort should determine that the Union might law- fully represent them. 18 Despite the ponderous size of the record in this overtried case, the Advice memorandum of March 1981 was not included , so it is not possi- ble to compare with precision the conflicting determinations from Wash- ington that have given rise to so much mischief in this situation . Presum- ably the brief of the General Counsel follows the revised findings and rationale of the Division of Advice. The second decision by Advice is apparently not based on anything approaching newly discovered evi- dence or on a different factual setting than the one that gave rise to the original determination . The basis for its change of heart seems to be a revised assessment of the law and an abandonment of any reliance on the holding of the Board in Teamsters Local 982 (Barker Trucking), 181 NLRB 515 (1970), affg.. Teamsters Joint Council 42 Y. NLRB, 450 F.2d 1322 (D.C. Cir. 1971), regarding the independent contractor issue. could give them no definite reply. Park is one of the principal general contractors in the Twin Cities area and an individual signatory to both the master agreement and the Memorandum of Understanding . In recent years, Park had sold a substantial number of its trucks and, as a result, had permanently laid off a number of its regular company drivers. It also utilized ITOs who were re- ferred to it by Jacobs Trucking Company. On March 16, Bailey sent Business Agent Robert Bon- hoff, who normally services the Park account, to speak with Richard Carlson, president of Park, concerning the manning of a forthcoming Interstate 94 (1-94) highway construction job on which Park had received a substan- tial dirt-moving contract. Bonhoff asked Carlson if he was going to man the job with company drivers and Carlson was noncommittal. Bonhoff reported back to Bailey that he felt that Park was going to subcontract all or part of that job.13 Bailey testified that, in March 1981, during the same period of time that he was receiving complaints from Park employees who had not been recalled, he also no- ticed that Park was utilizing ITOs for hauling at several jobsites, among them the Metropolitan Airport and two large construction sites in downtown Minneapolis at First Street and Marquette and at Fourth Street and Eleventh Avenue . In light of these complaints and obser- vations made by Bailey, Van Lith, the secretary-treasur- er, sent a telegram to Park claiming that Park was in vio- lation of schedule E of the Memorandum of Understand- ing by utilizing subcontractors to circumvent the inten- tion of the memorandum. Van Lith characterized his complaint to Park as a grievance, requested that Park contact him to resolve the grievance , and stated that he would submit the grievance to the State Joint Committee if it was not resolved immediately. Van Lith also asked Park in his telegram for a prejob conference concerning work that Park was scheduled to start on 1-94 near downtown Minneapolis . When Park made no response to Van Lith's telegram, Bailey sent Park a second telegram, dated March 28, stating that he had learned that Park was subcontracting work on 1-94 and other projects and that, pursuant to article 11 of the master agreement,14 he was referring the matter to the prime contractor to re- solve the dispute. On March 30, Van Lith requested that a meeting be held to resolve the outstanding dispute with Park. A meeting was held the following day between Union and Park officials at the office of Park's counsel. At this meeting, union counsel asked Park to agree not to sub- 13 Carlson testified that they discussed subcontracting to Sy Jacobs and that Bonhoff told him that, if Jacobs went on the job, there would be trouble. Bonhoff denies any discussion relating to Jacobs and specifically denied this statement concerning Jacobs. I found Bonhoff to be a truthful witness and Carlson to be an unreliable one, so I credit Bonhoffs denial. 14 Art. II of the 1978- 1981 agreement, entitled "subcontractor," pro- vided: "In the event a subcontractor is involved in a controversy, the Union shall be obligated to bring it to the attention of the prime contrac- tor. The prime contractor shall have at least 48 hours to attempt a settle- ment of the controversy before a work stoppage is brought about . It shall not be a violation of this Agreement , including art. 17 (the no-strike, no- lockout provision), if a stoppage of work occurs due to the failure to arrive at an agreement." A similar provision may be found in the current contract as part of art 16. ASSOCIATED GENERAL CONTRACTORS contract out any work during the remainder of its exist- ing contract with the Union, which had 30 days left to run. Park declined and on the following day the Union posted pickets, or "banners," in front of Park's main fa- cility and at several of its jobsites. As a result of this action, Park employees employed in several different trades stopped work. The picket lines were maintained until April 15. On Friday, April 10, Carlson and Bailey had a dinner meeting at a restaurant known as Little Jack's to discuss the picketing that was still in progress. Bailey com- plained to Park that he was subcontracting work while 18 company drivers on the Park seniority list were not working. He also complained to Carlson that the latter had broken his word, assertedly given the previous year in settlement of a grievance, that ITOs would not be used for Saturday work.15 Bailey mentioned to Carlson the place where Park was currently using subcontrac- tors. He also suggested that, if Carlson had insufficient trucks for regular company drivers because of the sale of company trucks that had taken place, Park might lease trucks for company drivers to operate. He also told Carl- son that he wanted an agreement only for the balance of the current contract. Carlson objected to Bailey's sugges- tions and said that he might have to discontinue subcon- tracting. Bailey then gave Carlson the names of some union ITOs who would be interested in working for Park as ITOs. Carlson told Bailey that he was not going to begin to perform any work on the 1-94 contract for a while until he resolved a dispute with some black truckers who were also picketing Park at the 1-94 project. Bailey then asked Carlson to drop certain suits and unfair labor prac- tice charges that Park had pending against the Union. Carlson refused the latter request, saying that the issue of whether ITOs were independent contractors had to be fi- nally determined. Nothing was resolved at this meeting . However, on the following day, Carlson, Van Lith, Bailey, and Duane Prairie, a Park official, met at the Sheraton Northeast Hotel. They briefly discussed the status of negotiations between AGC and the Union, which were then in progress, before engaging in renewed negotiations con- cerning the picketing of Park projects. The Union de- manded that Park put Teamsters members to work and refrain from subcontracting work for the remainder of the 1978-1981 agreement. It also asked that all civil ac- tions and NLRB charges filed by Park against the Union be dropped. Carlson agreed to use Teamsters members for construction jobs other than the 1-94 job but refused to drop any unfair labor practice charges or civil suits. He mentioned that he actually had two dirt-moving con- tracts on 1-94, one of which was a small job that was nearly completed, and he would like to finish the small job soon. This meeting concluded without an agreement. 'S Company drivers employed under the terms and conditions of the master agreement must be paid time-and-a-half for Saturday work. How- ever, ITOs are hired at a flat hourly rate, irrespective of the number of hours a day or days per week they may work In 1980, during certain rush jobs, Park had used ITOs for Saturday work and the Union had grieved this practice 527 However, Carlson said that he would be in touch with the Union early the following week. On April 14, Carlson phoned Van Lith and told him that he would agree to use company drivers on the three construction projects that were currently in progress and would also use company drivers on the small 1-94 job, which was nearing completion, if the Union would with- draw its pickets. Van Lith agreed and pickets were with- drawn the following day. II. ANALYSIS AND CONCLUSIONS A. The Status of ITOs and MTOs as Employees or Independent Contractors All parties have correctly focused on the central issue in this case, and some have gone so far as to say that the charges here were filed in order to obtain a final and binding determination of that issue. In my opinion, the ITOs and MTOs involved in this proceeding are not em- ployees within the meaning of Section 2(3) of the Na- tional Labor Relations Act. They are independent con- tractors and they are clearly so. No other conclusion is possible either under the case law as it has developed to this time or under the ponderous amount of evidence on this point, which both sides have placed in the record in this proceeding. A brief review of the law indicates that, at one time, the Board, on facts not very dissimilar from those found in this case, concluded that dumptruck operators who haul material to and from construction sites are employ- ees of the contractors for whom they worked and that disputes arising between unions and general contractors involving such dump truck operators are primary in character. Teamsters Local 982 (Barker Trucking), supra. This determination was upheld in 1971 by the District of Columbia Circuit " e and serves as the principal basis, if not the only basis, for the Union's contention that ITOs and MTOs are employees and that its disputes with AGC and Park are primary in character. Following the Barker Trucking case, the Board ren- dered a similar decision regarding the status of dump- truck operators in Associated General Contractors of Cali- fornia, 201 NLRB 311 (1973). However, that decision was reversed by the Ninth Circuit, which concluded that dumptruck operators are in fact independent contrac- tors. t' The Board accepted the remand of that decision and acceded to the Ninth Circuit's determination, but only as the law of that particular case. Associated General Contractors of California, 239 NLRB 686 (1978). However, in a subsequent decision, the Board went far beyond accepting the Ninth Circuit's ruling in the first California dumptruck case as the law of that particular case and adopted the Ninth Circuit's rationale as its own, thereby effectively abandoning the Barker Trucking hold- ing mentioned above. In Teamsters Local 36 (California Dump Truck), 249 NLRB 386 (1980), another case aris- ing in southern California, the Board concluded that dumptruck operators are in truth and fact independent 16 Teamsters Joint Council 42 Y. NLRB, supra. '7 Associated General Contractors of California v. NLRB, 564 F.2d 271 (9th Cir. 1977). 528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD contractors, not employees, and that pressures brought to bear by unions to bring them under the terms and condi- tions of collective-bargaining agreements are secondary in character. Apparently, the District of Columbia Cir- cuit also abandoned its own Barker Trucking decision, in- asmuch as that court upheld the Board's determination in Teamsters Local 36 and also concluded that dumptruck operators are independent contractors.' 8 The evidence in this case in no way differentiates ITOs and MTOs in the Twin Cities area from dumptruck operators in southern California. A great deal of effort was expended to distinguish ITOs and MTOs employed by AGC members from those employed by nonunion contractors but no significant distinctions emerged. The evidence submitted by all parties on the independent contractor issue was similar, if not identical, and differed, if at all, in matters of emphasis and detail rather than in dispositive substance. Respondent Union would have the Board concentrate almost exclusively on the jobsite ac- tivity of truckdrivers, where there is a marked similarity in the routine followed by drivers who are conventional employees, and ITOs and MTOs, who are not. However, the courts have repeatedly stated that "the total factual context" and "all the incidents of the relationship must be assessed and weighed, with no one factor being deci- sive." NLRB v. United Insurance Co., 390 U.S. 254, 258 (1968); Associated General Contractors of California v. NLRB, supra; Democratic Union Organizing Committee Local 777 Y. NLRB, 603 F.2d 862 (D.C. Cir. 1979); Teamsters Local 36, supra. If we avoid the temptation to engage in tunnel vision and look at the manner in which ITOs (and MTOs) engage in business throughout the entire course of their operations, their status as independ- ent contractors becomes well defined. Conventional company drivers are employed at a fixed hourly wage which, in the case of the employees of AGC contractors, is set forth by 3-year written contracts which establish not only basic wages (and stated yearly increases) but fringe benefit payments as well. Such driv- ers are entitled to time-and-a-half for Saturday work and for all work in excess of 8 hours in any one day. The trucks they drive are entitled to the companies they work for and the cost of operating and maintaining those trucks is borne entirely by their employers. In a normal day's work, company drivers report to their employer's principal place of business, are dispatched to a jobsite or jobsites, and return to the employer's shop or garage, re- gardless of how long it takes them to drive to the con- struction site, the quarry, or the batch plant from which, or to which, they are expected to haul materials. The only responsibility exercised by a company driver is to operate his employer's equipment in a safe and sensible manner, to engage in first-line maintenance such as checking the gas, the oil, and the tires, and possibly to hose down the vehicle when it becomes very dirty or caked with materials that have been hauled. A company driver bears no out-of-pocket cost for any aspect of the operation of the vehicle, except perhaps for a speeding ticket if he violates state law when driving on a public 18 Teamsters Local 36 Y. NLRB, 669 F.2d 759 (D.C. Cir. 1981). highway. As one ITO witness put it, a company driver has nothing invested in a job but his lunchbox. ITOs own their own trucks and bear the entire entre- preneurial risk which is incident to such ownership. They select the year, model, and condition of the trucks they buy, finance the purchase of the trucks and any equipment used in connection with the operation of the trucks, and dispose of their trucks at their sole discretion, retaining any proceeds they might be able to derive from the sale. The entire cost of operation is borne by the ITOs, who purchase all gas, oil, lubricants, antifreeze, and similar items involved in routine operation. They pay the cost of all maintenance and repairs , ts other than for damage to their vehicles that can be directly attribut- able to a general contractor in such a manner that the contractor would be civilly liable if he did not furnish repairs in kind . ITOs are paid only from the time they arrive at the jobsite and only until they leave the jobsite (or dumpsite), regardless of how far they may have to come in order to start work. The hourly fees earned by ITOs cover both their services in driving their trucks and the total cost of maintenance and operation of the trucks. It is a constant fee, regardless of the number of hours employed in any one day or in any week. Because this rate is the same regardless of the difficulty of a par- ticular job, the net earnings of ITOs vary considerably from job to job even though the hourly rate does not change, because the hauling distance , the road grades en- countered, the type of material being hauled, and other external conditions can greatly affect the cost per mile of operating a vehicle . No such entrepreneurial risk is borne by company drivers, whose compensation is the same re- gardless of how easy or how difficult a given haul may be. The hourly rate paid to ITOs normally remains the same throughout a construction season and is generally set by the brokers who refer the ITOs on the basis of what they estimate the traffic will bear. It is never estab- lished by written contract. Indeed, the daily hauling ar- rangement between contractors and ITOs is generally an oral one which is concluded by the broker making the referral. As a result, the first inquiry which a prudent ITO makes when offered a referral is the rate to be paid and the nature of the items to be hauled . However, ITOs can and have gone directly to contractors to bid for work at less than the going rate and some have even tried to obtain work for more than the going rate. In a depressed market, the latter is difficult to do, although the former is not at all unusual. Hauling jobs undertaken by ITOs are not always quoted on an hourly basis, and it is not unusual for a contractor to hire ITOs on a ton-mile or load basis. The relationship between a contractor and a conven- tional company driver is an ongoing one . Construction 19 There is evidence in the record that, from time to time , a contractor or his employees may give an ITO on a job some gas or oil, or may lend him a tool for a quick repair job. This is simply a matter of a small ac- commodation based on friendship or "first aid" for a truck. Any signifi- cant repairs are handled by ITOs at their expense, and breakdowns of ITO trucks for any significant periods of time result in a deduction in the compensation ultimately paid. ASSOCIATED GENERAL CONTRACTORS work is seasonal and many employees are laid off at the end of the year. However, the master agreements have clear and detailed provisions for individual company se- niority rosters and for the recall of laid-off drivers at the beginning of a new season. One witness for the Respond- ent Union testified that he worked 35 years for the same contractor and is now retired from that firm. ITOs work strictly on a day-to-day basis, even on long-term jobs where prospects are good for employment lasting several weeks. They never accrue seniority and the master agreement is explicit on this point . Most contractors employ ITOs only as a supplement to their regular cadre of company drivers so, even if a particular job is long term in character, the nature of the contractors' other business may dictate that company drivers be assigned to that site each day in fluctuating numbers . ITOs get what work is left over. Accordingly, at or near the end of each day an ITO calls the broker who dispached him and asks for work the following day. The broker may refer him back to the same job, to another job for an- other contractor, or not at all. If an ITO should ask the contractor's job superintendent for work the following day, the superintendent will normally refer him to his broker, who dispatches ITOs to jobsites depending on the calls he has received from all of his customers. Con- versely, if a contractor who normally does business with a broker desires ITOs the following day, he must make a daily request, stating the number and kind of trucks de- sired and the location to which they should be dis- patched. Normally, an order of this kind is placed only as to quantity and quality of vehicles desired, without reference to the names of the owners or drivers of the vehicles. From these orders, dispatches are then made.20 For his part, if an ITO does not desire to work on a given day, he does not need to ask for time off. He simply refrains from calling a broker on the preceeding afternoon and is not dispatched . ITOs are free to work for one or more brokers during the same season and fre- quently do so. They are also free to solicit jobs directly from contractors. Some ITOs advertise, either in local papers, the yellow pages of the phone book, or over the radio, and obtain work in that manner from the general public. The terms of any such employment are necessari- ly set by the ITO and his customer at the time the en- gagement is agreed on. Company drivers are paid periodically by checks which remit to each employee the amounts which remain after taxes and social security payments are de- ducted. Union dues are frequenty checked off in addition to deductions required by law. ITOs who are referred by brokers are not paid by the contractors at all but by the broker, who in turn bills the contractor. ITOs prepare periodic statements and bill their broker, attaching to their statements daily timecards signed by job superin- tendents as evidence of the fact that they have worked the time which is set forth in the billing. These cards are ultimately transmitted by the broker to the contractor 20 In the case of an MTO, the owner of the vehicle may be the person who is referred to the contractor but the vehicle may arrive at the jobsite driven by someone other than the owner who has been hired by the con- tractor to drive for that day. Such substitution of drivers is normally not a basis for rejecting the job referral by the general contractor. 529 with the broker's weekly or monthly invoice, which will normally contain billings for the services of several ITOs. The contractor then pays the broker who pays the ITO after deducting the brokerage commission, although such payments do not necessarily take place in this order. The broker is responsible for paying the ITO re- gardless of whether he is paid or when he is paid by the general contractor. In a depressed economy, contractors are frequently slow to pay, while others follow this policy regardless of general business conditions. One of the substantial benefits of referral by a broker, rather than employment through direct solicitation, is-that. the ITO is assured of payment with reasonable promptness. When referred by a broker, if the contractor never pays, it is the broker, not the ITO, who absorbs the loss. This feature of commercial life in the highway and heavy construction industry has been experienced from time to time by several of the brokers involved in this litigation, who have paid drivers while not being paid by the con- tractor to whom the driver was referred. In the first California dumptruck case discussed above, the respond- ent union therein claimed that owner operators were em- ployees of the brokers who dispatched them, not em- ployees of the contractors who were ultimately responsi- ble for payment. In this case, the Respondent Union maintains that ITOs are employees of the contractors, not employees of the brokers. In light of the standard payment arrangements between and among these parties, there is even less basis for finding an employment rela- tionship here than there was in the California case, since that most fundamental of all employment factors, namely, payment by employer to employee, is totally missing here, except when the job is directly solicited and the contractor is directly billed by the ITO. The latter arrangement occurs only in a minority of cases. In any one summer, an ITO who is regularly em- ployed will work for several contractors. Indeed, he may work for several contractors even in the course of a single week or during the course of a single day, if the first job to which he is referred finishes and the broker who refers him is able to find work with another con- tractor to complete the day. An ITO is free to reject a job when offered or to drive off the job after he arrives. Depending on the availability of other work and the size of his bank account, an ITO may leave a job abruptly in the middle of the day if the job involves hauling of mate- rial other than the kind which was represented to him when he agreed to the referral, or if a contractor's em- ployee is abusing the ITOs equipment in the course of loading. 2 t No such option is open to a company employ- ee, who risks serious discipline for leaving a job without permission. On the other hand, a company employee would simply not be inclined to leave for the reasons which normally prompt an ITO to remove his equip- ment. On rare occasions, a contractor may have reason to ask an ITO to leave a jobsite. Except in emergency situa- 21 All witnesses seem to agree that heavy concrete chunks make the least desirable loads because they can easily damage the equipment, either during loading or hauling, and because the weight of concrete adds to gasoline consumption and general wear and tear on the vehicle. 530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tions, a contractor will normally vent his displeasure with an ITO directly to the broker who referred him rather than to the ITO and will ask the broker that the ITO not be referred again. The principal source of con- tractor displeasure with ITOs runs to the nature of the equipment furnished, not to the driving performance of the ITO. Likewise, an ITO referred by a broker will normally take up any disagreement with a contractor first with the broker and ask the broker to straighten out the problem with the contractor. When the construction season is in full swing, a busy broker or his associate will visit jobsites frequently, both to cement relations with general contractors and to iron out any disputes that may have arisen with ITOs. Few such disputes do arise since ITOs are rarely on the same jobsite for lengthy periods of time and experienced brokers know, prior to referral, which ITOs do not work well with which contractors. At the jobsite and during the actual hauling operation, ITOs must follow the same regimen as a company driver, and it is because of this similarity of activity that the Respondent Union argues that both are employees of the same employer. However, these similarities are ne- cessitated by the facts and circumstances of the job, not because of the relationship that has been established be- tween the ITOs and the contractors. Both ITOs and company drivers normally arrive at the job at or about the same time, line up in the same line to be loaded or to dump materials obtained from another site, and drive over the same routes to the same dumpsite. In the course of performing these duties, both company drivers and ITOs are subject to the directions of the contractor's job superintendent, the company loader, the dumpsite fore- man, or the grader, and both are subject to company safety regulations. At a jobsite involving a mixed assort- ment of company drivers and ITOs, it is difficult to see how the operation could proceed efficiently in any other manner. However, the fact that ITOs must take instruc- tions from their customers should not serve to convert a relationship which began-and will end-at arm's length into something different than what it started out to be. Accordingly, in light of all the factors discussed above, I conclude that ITOs and MIOs are independent contrac- tors. B. The Memorandum of Understanding The General Counsel asserts that the Memorandum of Understanding concluded by the Respondent AGC and the Respondent Union in 1980 violates Section 8(e) of the Act for several reasons enumerated in the consolidat- ed complaint. For its part, the Respondent Union con- tends that at all times the actions it took, including the negotiation and execution of the Memorandum of Under- standing, were geared to preserving job opportunities for its members who are employees of AGC contractors. Accordingly, the Union argues its efforts were protected by the work preservation exception to Section 8(b)(4) and 8(e) of the Act which was judicially created by the Supreme Court decision in Woodwork Mfrs v. NLRB, 386 U.S. 612 (1967). In Woodwork Mfrs., the Supreme Court, relying heavily on the legislative history rather than the language of Section 8(e) and 8(b)(4), held that a refusal by employees to handle the products of other em- ployees-an act ostensibly outlawed by the literal lan- guage in the above-cited sections of the Act-is permissi- ble when the refusal is prompted by a desire to preserve the traditional job opportunities of striking (or boycott- ing) employees, because such a refusal is primary in character and is directed principally at the relationship between these employees and their own employer. The frequently quoted language of the decision which seeks to differentiate a primary from a secondary boycott in a work-preservation situation is stated as follows in Wood- work Mfrs., supra at 644-645. The determination whether the "will not handle" sentence of Rule 17 (of the challenged work rules) and its enforcement violated § 8(e) and § 8(b)(4)(B) cannot be made without an inquiry into whether, under all the surrounding circumstances, the Union's objective was preservation of work for [the primary employer's] employees, or whether the agreements and boycott were tactically calculated to satisfy union objectives elsewhere. Were the latter the case . . . the boycotting employer would be a neutral bystander and the agreement or boy- cott would, within the intent of Congress, become secondary. There need not be an actual dispute with the boycotted employer . . . for the activity to fall within this category so long as the tactical object of the agreement and its maintenance is that employer, or benefits to other than the boycotting employees or other employees of the primary employer, thus making the agreement or boycott secondary in its aim. The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer vis-a-vis his own employ- ees. This will not always be a simple test to apply. But "[h]owever difficult the drawing of lines more nice than obvious, the statute compels the task." Despite restrictions on a literal reading of the statute enjoined by the Supreme Court, the statutory language in question has been used to define violations of the Act in certain stylized situations without any additional find- ings of motive, object, or surrounding circumstances, even in the face of a work preservation claim. A con- tract between a labor organization and an employer, which requires the latter to treat independent contractors as employees and apply to them the terms and conditions of a collective-bargaining agreement designed to be ap- plicable only to statutory employees, is a violation of Section 8(e) of the Act, and work preservation is no de- fense to such tactics. Teamsters Local 36, supra; Team- sters Local 814 (Santini Bros), 223 NLRB 752, enfd. 546 F.2d 989 (D.C. Cir. 1976); Retail Clerks Local 1288 v. NLRB, 390 F.2d 858 (D.C. Cir. 1968); Musicians Local 802 (Huntington Town House), 225 NLRB 559 (1976). The net effect of such agreements normally is to require independent contractors to abide by the union-security provisions of the primary agreement and to become union members within 30 days after employment (or within 8 days in the building and construction industry). The Memorandum of Understanding at issue in this case contained a conventional union-security clause tailored ( ASSOCIATED GENERAL CONTRACTORS to the building and construction industry and required, by its terms, all independent contractors hired by AGC members to become union members after working on a job for 8 days. The clause in question violated Section 8(e) and the Union's effort to obtain that clause violated Section 8(b)(4)(ii)(A) and (B) of the Act.22 The Memorandum of Understanding required signato- ry employees to pay to the joint trustees who administer the pension and the health and welfare benefit funds the same hourly contribution that they are obligated to make for bargaining unit employees . There is no evidence that union membership is a requirement for eligibility to par- ticipate in these funds, and there is uncontradicted testi- mony that any trucker can draw benefits from the fund so long as he meets the uniform requirement of working a stated number of hours during a calendar quarter for contributing employers . It appears, therefore, that this provision in the Memorandum of Understanding defines a primary obligation between the Union and AGC mem- bers, to which independent contractors are third-party beneficiaries. Whether a union may lawfully insist to im- passe that contributions be made to fringe benefit funds on behalf of individuals who are not members of the bar- gaining unit is not an issue before the Board in this case. What is at issue is whether the obligation that was under- taken between the parties to the memorandum in this re- spect was primary or secondary in character. I conclude that the obligation in question is primary in character and, therefore, the contract provision covering such pay- ments does not offend Section 8(e) or 8(b)(4) of the Act. Accordingly, I would dismiss as much of the consolidat- ed complaint that alleges a violation respcting this por- tion of the memorandum. The General Counsel attacks the ITO referral provi- sion in the memorandum as violative of the Act and cites as authority the Board decision in Teamsters Local 36 (California Dump Truck), supra.23 In the contract, the parties agreed to an "equal opportunity" clause which did not live up to its billing because it required AGC members to give preferential status to the union hiring hall. When in need of ITOs, an AGC member was re- quired first to call the union hall and then to seek ITOs 22 The parties to this proceeding can take no benefit from the con- struction industry proviso to Sec 8 (e) of the Act, which sanctions union signatory provisions in a primary contract covering work done at a con- struction site. It has been consistently held that on-site work , qualifying for protection under the proviso , does not extend to bringing materials to or from a jobsite. Teamsters Joint Council 42 (California Dump Truck), 248 NLRB 808 (1980); Teamsters Local 89, 254 NLRB 783 (1981). 1 do not read the recent Supreme Court decision relating to the ambit of the construction industry proviso as affecting previous Board decisions ex- cluding hauling to and from jobsites from the shelter of the proviso Car- penters Local 944 (Woelke & Romero Framing), 239 NLRB 241 (1978), affd. in part sub nom . Woelke & Romero Framing v. NLRB, 456 U.S. 645 (1982) 23 I do not regard the contract clause litigated in Teamsters Local 36 to be apposite to the provision at issue in this case . In the second California dumptruck case, the contract required owner-operators to undergo a clearance procedure at the union office after reporting to the jobsite. The Board found the clause to be bad but , unlike the administrative law judge, did not regard it as illegal per se but illegal only because surround- ing circumstances in the case demonstrated that it was aimed at further- ing general union objectives and regulating labor policies of employers other than those who were parties to the agreement Teamsters Local 36, supra at fn 1. 531 from some other source if the Union was unable to fill its requirements. If the referral clause in question truly spelled out an "equal opportunity" procedure, placing the Union on the same footing as Jacobs, Rucki, Buest- ing, and other truck brokers, a convincing argument might be made that the provision complied with the law. However, this provision granted preferential status to the Union and had direct secondary consequences. It was not addressed to the labor relations of contracting em- ployers and their own employees but was, to borrow a phrase, "tactically calculated to satisfy union objectives elsewhere." Woodwork Mfrs, supra at 644 fn. 23. The Union was interested in securing work not only for its employee members but for a large number of unionized ITOs who sought and utilized the services of the union referral service . Despite the fact that this group of ITOs carried union cards, they were still inde- pendent contractors. Bailey championed the interest of this group of ITOs, whose number was estimated at be- tween 200 and 250. He gave the names and addresses of several of these ITOs to contractors and specifically asked contractors to call them in preference to other ITOs. Many contractors, such as Ames Construction Company, Park, and Bolander and Sons Construction Company, had established relationships with brokers such as Rucki and Jacobs and normally called these bro- kers rather than the Union for ITOs when the need arose. The ITOs who were referred by these brokers might be union members, they might be part of a large category of nonunion truckers who now make up the ICTO, or they might be unaffiliated with any organiza- tion. The requirement to call the Union first necessarily disrupted the relationship with these brokers. During the summer of , 1980, Bailey, Van Lith, and other union agents regularly visited jobsites of AGC members to police the terms of the memorandum . They insisted the ITOs found on these jobs join the Union and they insist- ed that the referral provision of the memorandum be ob- served by AGC members. In short, the referral provision drawn into question by the General Counsel was an in- strumentality that was being utilized by the Union to see to it that its members received preferential hiring over ITOs referred by commercial brokers. As a necessary and forseeable consequence, the job opportunities of other independent contractors , who might be employed by an AGC contractor only after the Union's referral list was exhausted , were clearly diminished. Moreover, con- tractors ceased doing business with commercial brokers to the degree and extent that they were formerly accus- tomed to doing business. It is clear that one of the objec- tives of this preference was to assist the Union in its effort to organize all independent contractors and bring them into the Union fold. Accordingly, the referral clause in question violates Section 8(e) and the Union effort to secure the clause violated Section 8(b)(4)(ii)(A) and (B). The General Counsel attacks another provision of the memorandum, claiming that, by reference or tie-in link- ing the memorandum with certain provisions of the 1978-1981 master agreement between the Union and AGC, an otherwise neutral or valid undertaking became 532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD violative of Section 8(e) because it permitted self-help or economic action as a means of enforcement. His argu- ment in this regard is somewhat murky. It is well settled that, although the union may employ coercive means to obtain a no-subcontracting agreement in the construction industry, it may not employ coercive means to enforce such an agreement. Any contractual provisions that au- thorize or approve self-help as a means of enforcing valid no-subcontracting agreements are illegal Painters Local 48 Y. NLRB, 328 F.2d 534 (D.C. Cir. 1964); Team- sters Local 89 (McKee, Inc.), 254 NLRB 783 (1981), and cases cited in fns. 15 and 16. It is equally well settled that if a clause in a contract is ambiguous, the Board will not presume unlawfulness. Teamsters Local 982 (Barker Trucking), supra. The mere fact that a union signatory has taken a position asserting an unlawful interpretation of a clause does not make the clause unlawful unless the employer who is a signatory to the agreement accedes to the Union's unlawful con- struction. Teamsters Local 89, supra. The General Coun- sel makes no contention that any unlawful interpretation placed on the memorandum by the Union is likewise the construction given to it by AGC. The record establishes no agreement by the Respondent AGC to any unlawful or arguably unlawful interpretations placed on the memorandum by the Respondent Union. The memoran- dum provides that: No other terms or provisions of the collective bargaining agreement shall apply to any ITO's or drivers for multi-truck owners, except that the grievance arbitration procedure as set forth in Arti- cle XII of the current Highway and Heavy collec- tive bargaining agreement shall apply to any differ- ences or disputes concerning the interpretation or application of the provisions of this memorandum of Understanding. The memorandum does not key into its provisions in article XI (no-subcontracting) of the 1978-1981 agree- ment nor is there any reference in the memorandum to schedule H, subparagraph 6(g) of the agreement, which permits the Union, under certain circumstances, to strike an employer to collect unpaid fringe benefits or to re- quire the production of records relating to liability for payment of fringe benefits.24 The above-quoted provi- sion of the memorandum makes reference only to a grievance-arbitration procedure which calls for ultimate arbitration before a three-member panel, which includes a neutral arbitrator and provides that the decision of this panel shall be final. The grievance-arbitration provision in question is backed up by the no-strike, no-lockout pro- vision that is found in article XVII of the expired master agreement, thus eliminating self-help as a means of en- forcing secondary obligations that are tied into the memorandum. 24 Even if such self-help, as authorized by the master agreement, could somehow be dovetailed with the provisions of the Memorandum , a strike, authorized by schedule H, subpar . 6(g), would be a primary strike if un- dertaken to collect from an AGC member fringe benefit payments due and owing because of hours worked by an ITO If we interpret the memorandum in accordance with the plain language of its provisions and do not attempt to read into its language other provisions in other agree- ments that are nowhere mentioned, there is no basis for finding that the memorandum calls for self-help, as al- leged. Therefore, the portion of the consolidated com- plaint attacking the reference in the memorandum of arti- cle XII of the expired agreement should be dismissed. C. The Negotiations for the 1981-1984 Agreement At the outset of the negotiations leading up to the exe- cution of the master agreement that is currently in effect, ITOs and MTOs were presumed to be employees, not in- dependent contractors, because of the rulings on this point that the parties had previously received from Advice and Appeals. As the Respondent Union points out in its brief, there were still in existence a large number of individuals in the bargaining unit covered by the negotiations who were employees of AGC contrac- tors by any definition and, despite the pendency of the independent contractor issue in the Office of the General Counsel, it was for and about these employees that the negotiations in question were principally being conduct- ed. At the second bargaining session, Van Lith handed to AGC negotiators a written proposal which read: "For the preservation of work, there shall be no subcontract- ing of any work covered under the classifications of this agreement." As noted, there were no exceptions carved into this proposal, either for union signatories or for sub- contractors observing union conditions. If adopted, AGC members would have been required to perform all haul- ing work during the ensuing 3 years with company trucks operated by company drivers, all of whom were and are employees within the meaning of Section 2(3) of the Act. Throughout the history of the industry in central Min- nesota, contractors utilized their own trucks and their own drivers for hauling work and looked to this source of labor first, hiring ITOs only to supplement their own work force. However, during busy months ITOs were traditionally retained in large numbers because the demand for immediate performance of contracts was so great and so concentrated that the contractor's regular work force could not handle the work. Plainly, if Van Lith's proposal had been adopted, it would have brought about monumental changes in the established practices in the highway and heavy construction industry. General contractors would have been forced to discontinue using all ITOs, either union or nonunion, and would have had to make do at the height of the season with company drivers operating company equipment. Presumably this is why the proposal in question was given such short shrift. However, the fact that a bargaining proposal is extraor- dinary or even radical in its scope and effect does not mean that it violates Section 8(b)(4) or 8(e) of the Act. In industrial settings, flat and unqualified no-subcon- tracting clauses are commonplace features of collective- bargaining negotiations . Far from being illegal, no-sub- contracting clauses are mandatory subjects of bargaining, and the Supreme Court has so ruled. Fibreboard Paper ASSOCIATED GENERAL CONTRACTORS Products Corp. v. NLRB, 379 U.S. 203 (1964). There does not even seem to be a requirement that such a clause contain, as did Van Lith's proposal, a preface that it is designed "for the preservation of work." The rationale outlined in support of the Fibreboard decision presumed this motivation and set it forth as the major premise for the decision. 25 Because the collective-bargaining representative for a large number of employees employed by the AGC mem- bers who were parties to the negotiations in question, the Union was within its rights, if not within the reasonable prospects, in offering a complete and unqualified no-sub- contracting clause to management representatives, and therefore much of the consolidated complaint which is directed at this effort must be dismissed. D. The Dispute with Park Park is one of the largest AGC contractors and an in- dividual signatory to the areawide highway and heavy construction agreements. At one time, Carlson from Park was a member of the AGC labor negotiating committee. Park formerly owned more than 30 trucks and employed conventional unionized employees to drive these vehi- cles. In the years immediately preceding this dispute, Park had sold many of its vehicles and its company se- niority roster had shrunk proportionately as its use of ITOs had increased. In the spring of 1981, Park received a large dirt- moving contract on the 1-94 interstate highway project. Even before the main part of the construction season started, Park was busy on about three other projects. Meanwhile, laid-off employees were complaining that they had not been called back to work and union offi- cials had observed trucks operating on Park projects which did not belong to Park. They determined to bring pressure on Park to change this situation. The pressure ultimately resulted in a strike and picketing, which it sought to justify on the basis of two different and mutu- ally inconsistent premises. Van Lith sent Park what might be termed a telegraph- ic grievance, which was followed up by a second tele- graphic grievance sent by Bailey on March 28. Bailey's telegram invoked article XI of the master agreement, which read: In the event a subcontract is involved in a con- troversy, the Union shall be obligated to bring it to the attention of the prime contractor. The prime contractor shall have at least forty-eight (48) hours to attempt a settlement of the controversy before a work stoppage is brought about. It shall not be a violation to this Agreement, including Article XVII, if a stoppage of work occurs due to the fail- ure to arrive at an agreement. At a meeting on April 1 held to resolve this dispute, union counsel asked Park to agree to a no-subcontracting clause for the balance of the agreement. Park refused. In a later settlement discussion with Park officials, Van Lith 25 In Fibreboard, the work at issue in the union's contract proposal was the farming out of maintenance work in a paper mill 533 and Bailey said they would pull their pickets if Park would agree not to subcontract any more trucking work and put their own employees on the jobs which were in progress. The testimony of Van Lith and Bailey is incon- sistent as was their position vis-a-vis Park. Van Lith testi- fied that the picketing, which began on April 2, took place as a direct result of the failure of the parties to reach an agreement during the meeting of April 1. He further testified that the meeting in question was held to resolve a dispute that had arisen under the existing con- tract between Park and the Union and had nothing to do with a new contract. He insisted that they were not trying to add any provisions to the existing contract with Park but were merely enforcing the terms of a contract already in effect. On the other hand, Bailey stated that the nub of the Union's dispute with Park was that it did not want Park to subcontract its work. It wanted Park to agree to hire the employees on Park's seniority list. He noted that there were about 3-1/2 weeks left on the existing con- tract and testified that the Union was attempting to obtain a no-subcontracting clause with Park for the bal- ance of this contract term. Enforcing the provisions of an existing agreement, either by arbitration or by self-help, proceeds from the premise that the moving party is entitled to the relief it is seeking under rights conferred by existing contract pro- visions and that the defaulting party is remiss in failing to live up to obligations it has already agreed to. Seeking to obtain a no-subcontracting clause proceeds from the op- posite premise, namely, that under existing contract obli- gations, the employer is free to subcontract work if he chooses but the Union, being unhappy with the freedom of action the employer currently enjoys, wishes to re- strict that right by imposing on the employer additional contract obligations which do not currently exist. The inconsistent allegations in the consolidated complaint simply mirror the ambivalent stance that the Respondent Union took in its dealings with Park in March and April 1981. As of April 1, 1981, Park was contractually free to subcontract without limitation, inasmuch as the Memo- randum of Understanding had been formally discontin- ued and there was no provision in the master agreement, to which Park adhered, which limited subcontracting beyond certain minimal requirements applicable to ITOs. The Union's resort to article XI (subcontracting) in the master agreement to support its contention with Park was a sham and a pretext designed to provide the Union with a colorable excuse for striking Park in the face of a no-strike clause in its contract. When it threatened Park with strike action and then took the action it threatened, the Union was not enforcing any contractual grievance which it had against Park. It was attempting to force Park to agree to forgo what Park was contractually free to do on April 1, namely, subcontract work to ITOs on 1-94 and the three other jobs which were in progress at that time. The Respondent Union claims that its threats and its strike action were justified by virtue of the Woodwork Mfrs rule because it was seeking only to preserve the 534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD jobs of its employee members who were on Park's se- niority roll but who had not been recalled to work. This contention must fail because work preservation is not so broad an umbrella as the Union might wish it to be. Park's dispatching log, which was introduced into evi- dence, indicates that several ITOs had been dispatched during March and that 12 trucks belonging to Sy Jacobs had been dispatched on April 1 . Taking Bailey at his word, several trucks not belonging to Park and necessar- ily belonging to independent truck owners were repeat- edly observed by Bailey and other union members or agents during the month of March immediately preced- ing the threat that was made on March 28. In light of this evidence it is clear that one of the Union 's principal objects in moving against Park was to force Park to get rid of these contractors, i.e., to cease doing business with them and to replace them with his own men . Indeed, an oral agreement to this effect, entered into between Carl- son and Van Lith on or about April 14, ultimately brought about and end to the dispute and the picketing. In Northeastern Indiana Building Trades Council (Cent- livre Village Apartments), 148 NLRB 854, 857 (1964), the Board long ago said: ... where, as here, the evidence indicates that an object of picketing, although assertedly directed at obtaining a subcontracting clause valid under the construction industry proviso to 8(e), is to cause a cessation of business between a neutral general con- tractor and an existing and identified non-union sub- contractor, we shall continue to find a violation of Section 8(b)(4)(B). to force Park to enter into an additional understanding not to subcontract work during the remainder of the contract on the 1-94 and other construction jobs that were then underway. No suggestion exists that the re- quired 60-day notice for termination or modification of a contract was given by the Union in advance of taking this action. Accordingly, I conclude that, by striking Park during a contract term to force Park to agree to a modification or addition to this agreement the Respond- ent Union here violated Section 8(b)(3) of the Act. E. The Liability of Respondent AGC Respondent AGC argues that it should be absolved from any responsibility and legal consequences for enter- ing into the Memorandum of Agreement that it executed on April 25, 1980, because it was coerced into doing so. The contention is without merit. It is clear that AGC signed the Memorandum reluctantly, but its reluctance in no way mitigates its liability under the Act. AGC and its members were not coerced, in the sense of the common law, into signing the memorandum . They received a sub- stantial quid pro quo for their undertaking, namely, a re- lease from a large potential liability for payment of dues and fringe benefits that would become due and owing if ITOs were ultimately found to be employees governed by the master agreement. They also bought labor peace during the 1980 construction season . Accordingly, there is no reason that the Respondent AGC should not be found to be in parti delicto with the Respondent Union for entering into the Memorandum of Understanding in violation of Section 8(e) of the Act. I so find and con- clude. In this case, the Union cannot even take solace from the contention that it was seeking an agreement authorized by the construction industry proviso because , as noted above, this proviso is inapplicable to hauling to and from construction sites and is limited in its scope to on -site ac- tivity. The efforts directed at Park were in furtherance of the Union's dispute with Jacobs and the other non- union independent contractors who were doing Park's work during March and who might be hired thereafter. While these latter contractors were not identified in Bai- ley's testimony by name, they were sufficiently identified by class or description to fall within the rule announced in Centlivre. Accoringly, I conclude that the threats and the picketing engaged in by the Respondent Union here violated Section 8(b)(4)(i) and (ii)(A) and (B) of the Act and the oral agreement or understanding not to use inde- pendent truckers on certain jobs, concluded by Park and the Union on or about April 14 in settlement of the dis- pute, violated Section 8(e) of the Act. The General Counsel also contends that the strike against Park constituted a violation of Section 8(b)(3) of the Act, a contention that would necessarily fail if the strike were considered to be merely an effort to enforce the provisions of an existing agreement between these parties. At the time the strike commenced , Park and the Union were parties to a contract that was not due to expire for another 30 days and contained grievance, arbi- tration, and no-strike provisions that were broad in their scope. As concluded above, one object of the strike was CONCLUSIONS OF LAW 1. Respondent Associated General Contractors of Min- nesota and Park Construction Company are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent Construction, Building Material, Ice and Coal Drivers, Helpers, and Inside Employees Union, Local 22, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America (the Union) is a labor organization within the meaning of Section 2(5) of the Act. 3. By entering into, maintaining, and giving effect to provisions of the Memorandum of Understanding which applied to independent truck operators and to multiple truck owners the provisions of article IV (union security) of the 1978- 1981 Master Agreement between AGC and the Union and Park and the Union, and by agreeing to the "equal opportunity" clause of the Memorandum of Understanding relating to the referral of ITOs by the Union, Respondent Union violated Section 8 (e) of the Act. 4. By entering into, maintaining, and giving effect to the provisions of the Memorandum of Understanding which applied to independent truck operators and to multiple truck owners article IV (union security) of the 1978-1981 Master Agreement between AGC and the Union, and by agreeing to the "equal opportunity" clause of the Memorandum of Understanding relating to ASSOCIATED GENERAL CONTRACTORS the referral of ITOs by the Union, Respondent Associat- ed General Contractors of Minnesota violated Section 8(e) of the Act. 5. By entering into, maintaining, and giving effect to an oral contract, understanding, or arrangement with Park Construction Company pursuant to which Park agreed not to subcontract to ITOs the work of hauling materials to or from certain construction sites during April 1981, Respondent Union violated Section 8(e) of the Act. 6. By coercing and restraining Associated General Contractors of Minnesota, Park Construction Company, and various employers engaged in commerce who are members of Associated General Contractors of Minneso- ta, for the purpose of requiring them to enter into con- tracts, agreements, or understandings, either express or implied, which violated the provisions of Section 8(e) of the Act, the Respondent Union violated Section 8(bx4)(ii)(B) of the Act. 7. By threatening to strike Park Construction Compa- ny and by picketing Park Construction Company, with the object of forcing Park Construction Company to cease doing business with Jacobs Trucking Company, Inc., an employer engaged in commerce within the meaning of the Act, and other particular employers en- gaged in commerce within the meaning of the Act who were employed on Park Construction Company jobsites in March and April 1981, and to force and require said employers to become members of the Respondent Union, the Respondent Union violated Section 8(b)(4)(i) and (ii)(A) and (B) of the Act. 8. All truckdrivers and truck maintenance employees employed by Park Construction Company in highway construction and heavy construction in the Metropolitan Twin Cities area and in central Minnesota, exclusive of plant clericals, guards, and supervisors as defined in the Act, constitute a unit appropriate for purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 9. At all times material, the Union has been the exclu- sive collective-bargaining representative of the employ- ees of Park Construction Company in the unit found ap- propriate in Conclusions of Law 8 for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 10. By striking to require Park Construction Company to enter into a revision and modification of its collective- bargaining agreement with the Union during the term of said contract and without giving the requisite 60-day notice, the Union violated Section 8(b)(3) of the Act. 11. The above-recited unfair labor practices have a close, intimate, and substantial effect on commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondents have committed certain unfair labor practices , I will recommend that they be required to cease and desist and to take certain affirmative actions that are designed to effectuate the purposes and policies of the Act. Charging Party ICTO requests that the Board order a make-whole remedy re- quiring the Respondent Union (but not Respondent 535 AGC) to compensate any persons or business damaged by its unlawful activities. It requests a remedy that in- cludes reimbursement of dues and fees paid to the Union, loss of profits from businesses stemming from the Re- spondent Union's unlawful activities, and consequential damages to any business injured by the Respondent Union's unlawful activities. The Board has recently re- fused to order such a remedy in an 8(e) case and its re- fusal has been judicially sustained. Teamsters Local 36, 249 NLRB 386 (1980), affil. 669 F.2d 759 (D.C. Cir. 1981). I am mindful that another circuit court of appeals has remanded a similar case to the Board for further con- sideration of a make-whole remedy in an 8(e) case26 and that the Supreme Court has recently granted certiorari in the above-cited Teamsters Local 36 case in order to re- solve the conflict between circuit courts on this point. See 50 U.S.L.W. 3908 (1982). My obligation in this deci- sion is to follow the law as it has developed to this point in time and, in so doing, to apply Board rules unless and until they have been set aside by the U.S. Supreme Court. Acting in accordance with these requirements of law, I will not recommend to the Board the remedy re- quested by ICTO. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed27 ORDER A. Respondent Construction, Building Material, Ice and Coal Drivers, Helpers and Inside Employees Union, Local No. 221, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, AFL-CIO , and its officers, agents, and representatives shall 1. Cease and desist from (a) Entering into, maintaining, or giving effect to the provisions of the Memorandum of Understanding that applied to independent truck owners and to multiple truck owners the provisions of article IV (union security) of the 1978- 1981 Master Agreement between the Re- spondent Associated General Contractors of Minnesota and the Respondent Union and between Park Construc- tion Company and the Respondent Union, and cease and desist from entering into, maintaining, or giving effect to the "equal opportunity" clause of said Memorandum of Understanding relating to the referral of ITOs and MTOs by the Respondent Union, to the extent found lawful. (b) Entering into, maintaining, or giving effect to an oral contract, understanding, or arrangement with Park Construction Company pursuant to which Park agreed not to subcontract to ITOs the work of hauling materials to or from certain construction sites during April 1981 to the extent found unlawful. 26 Teamsters 3omt Council 42 v. NLRB, 671 F.2d 305 (9th Cir. 1981). 27 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. 536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (c) Coercing and restraining Associated General Con- tractors of Minnesota, employer members of Associated General Contractors of Minnesota who are engaged in commerce, or Park Construction Company for the pur- poses of requiring any of them to enter into contracts, agreements, or understandings, either expressed or im- plied, which violate Section 8(e) of the Act. (d) Coercing or restraining Park Construction Compa- ny with the object of forcing or requiring Park Con- struction Company to cease doing business with Jacobs Trucking Company, Inc., an employer engaged in com- merce within the meaning of the Act, or other particular employers who are trucking companies engaged in high- way and heavy construction industry in commerce within the meaning of the Act, who were employed on Park Construction Company jobsites in March and April 1981, or to force and require the employers to become members of the Respondent Union. (e) Striking Park Construction Company for the pur- pose of compelling the employer to enter into a revision or modification of an existing collective-bargaining agreement with the Union during the term of the agree- ment or without giving Park the 60-day notice required by the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its Minneapolis, Minnesota office and meet- ing hall copies of the attached notice marked "Appendix A."28 Copies of the notice, on forms provided by the Regional Director for Region 18, after being signed by the Respondent's authorized representative, 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 cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, 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 Re- spondent has taken to comply. B. Respondent Associated General Contractors of Minnesota and its officers, agents, successors, member organizations, and their officers, agents, successors, and assigns shall 1. Cease and desist from entering into, maintaining, or giving effect to the provisions of the Memorandum of Understanding which applied to independent truck oper- ators and to multiple truck owners the provisions of arti- cle IV (union security) of the 1978-1981 Master Agree- ment between Respondent AGC and Respondent Union, and cease and desist from entering into, maintaining, or giving effect to the "equal opportunity" clause of the Memorandum of Understanding relating to the referral of ITOs and MTOs by the Respondent Union, to the extent found unlawful. 2. Take the following affirmative action necessary to effectuate the policies of the Act. 28 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." (a) Post at its business office in St . Paul, Minnesota, copies of the attached notice marked "Appendix B."29 Copies of the notice, on forms provided by the Regional Director for Region 18, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately on 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 Respond- ent 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 Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that insofar as the con- solidated complaint alleges matters that have not been found to violate the Act, the said consolidated complaint is dismissed. 29 See fn 28, supra. APPENDIX A NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Teamsters Local 221, is posting this notice to comply with an Order of the National Labor Relations Board, which was issued after a hearing before an administrative law judge in a case in which we were found to have vio- lated certain provisions of the National Labor Relations Act. WE WILL NOT enter into, maintain, or give effect to provisions of a Memorandum of Understanding with As- sociated General Contractors of Minnesota or Park Con- struction Company which applied to independent truck operators and to multiple truck owners the provisions of article IV (union security) of the 1978-1981 Master Agreement between ourselves and those employers or employer organizations , and WE WILL NOT enter into, maintain, or give effect to the "equal opportunity" clause of the Memorandum of Understanding relating to the re- ferral of ITOs and MTOs by this Union, to the extent that such clauses violate Section 8 (e) of the National Labor Relations Act. WE WILL NOT enter into, maintain, or give effect to an oral contract, understanding, or arangement with Park Construction Company pursuant to which Park agreed not to subcontract to ITOs the work of hauling materials to or from certain construction sites during April 1981 to the extent such agreement violated Section 8(e) of the Act. WE WILL NOT coerce or restrain Associated General Contractors of Minnesota, employer members of Associ- ated General Contractors of Minnesota, or Park Con- struction Company with the object of requiring any of them to enter into contracts, agreements, or understand- ASSOCIATED GENERAL CONTRACTORS ings, either express or implied, which violate Section 8(e) of the Act. WE WILL NOT coerce or restrain Park Construction Company with the object of forcing or requiring Park Construction Company to cease doing business with Jacobs Trucking Company, Inc., or any other particular employers who are trucking companies engaged in the highway and heavy construction industry in interstate commerce, and who were employed on Park jobsites in March and April 1981, or to force or require the em- ployers to become members of this Union. WE WILL NOT strike Park Construction Company for the purpose of compelling Park to enter into a revision or modification of an existing collective-bargaining agreement with this Union during the term of the agree- ment without giving Park the 60-day notice required by the Act. CONSTRUCTION, BUILDING MATERIAL, ICE, AND COAL DRIVERS, HELPERS, AND INSIDE EMPLOYEES UNION , LOCAL No. 221, AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA, AFL-CIO APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 537 Associated General Contractors of Minnesota is posting this notice to comply with an Order of the National Labor Relations Board, which was issued after a hearing before an administrative law judge in a case in which we were found to have violated certain provisions of the National Labor Relations Act. WE WILL NOT enter into, maintain, or give effect to provisions of a Memorandum of Understanding with Teamsters Local No. 221 which applied to independent truck and to multiple truck owners the provisions of arti- cle IV (union security) of the 1978-1981 Master Agree- ment between ourselves and Teamsters Local No. 221, and WE WILL NOT enter into , maintain, or give effect to the "equal opportunity" clause of the Memorandum of Understanding relating to the referral of ITOs and MTOs by that labor organization, to the extent that such clauses violate Section 8(e) of the National Labor Rela- tions Act. ASSOCIATED GENERAL CONTRACTORS OF MINNESOTA