Teamsters Local 291 (Lone Star Industries)

TEAMSTERS LOCAL 291 (LONE STAR INDUSTRIES) Construction, Building Material Teamsters & MIS cellaneous Workers Local 291, International Brotherhood of Teamsters, Chauffeurs, Ware housemen and Helpers of America , AFL-CIO and Lone Star Industries and Aggregates and Concrete Association, Party to the Contract Cases 32-CE-54 and 32-CE-57 November 7 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On July 7 1988 Administrative Law Judge Joan Wieder issued the attached decision The Respond ents filed exceptions and a supporting memoran dum and the Charging Party filed a memorandum in opposition to the exceptions The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and memoranda and has decided to affirm the judge s rulings find ings and conclusions and to adopt the recommend ed Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondents Construc tion Building Material Teamsters & Miscellaneous Workers Local 291 Teamsters Automotive Em ployees Union Local No 78 Building Matenal Teamsters Local 216 Freight Construction Gen eral Drivers Warehousemen and Helpers Team sters Union Local 287 General Truck Drivers Warehousemen Helpers and Automotive Employ ees Local 315 and Warehouse Mail Order Retail Employees and Wholesale Liquor Salespersons Local 853 all of whom are affiliated with the International Brotherhood of Teamsters Chauf feurs Warehousemen and Helpers of America AFL-CIO their officers agents and representa tives shall take the action set forth in the Order Daniel F Altemus Jr Esq for the General Counsel Duane B Beeson Esq (Beeson Tayer Silbert & Bodine) and Burton F Boltuch Esq (Boltuch & Siegel) for the Respondents Jeffrey Pargament and Lawrence Levien Esqs (Akin Gump Strauss Haven & Feld) of Washington DC for the Charging Party DECISION STATEMENT OF THE CASE 581 JOAN WIEDER Administrative Law Judge This case was tried in Oakland California on April 12 1988 The General Counsel on December 8 1987 issued a com plaint based on charges filed by Lone Star Industries Inc on November 13 and December 1 1987 1 Copies of the charges complaint and notice of hearing were duly served on the Respondents The complaint alleges that Respondents violated Sec tion 8(e) of the Act by entering into a collective bargain ing agreement effective from June 1 1987 through May 31 1990 with Aggregates and Concrete Association (ACA) a voluntary employers association whereby these signatory employers agreed to require their lessees to abide by the collective bargaining agreement with the Respondent Unions Respondents filed answers in which they admitted certain allegations of the complaint and denied others including all those charging them with the commission of any unfair labor practices The General Counsel and Respondents have filed briefs that have been carefully considered On the entire record including the testimony of the witnesses and my observation of their demeanor I make the following FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYERS Lone Star is a Delaware corporation with an office and place of business in Pleasanton California where it is engaged in the manufacture and distribution of con struction materials During the past 12 months Lone Star purchased and received in the State of California supplies and materials valued in excess of $50 000 direct ly from suppliers located outside the State of California Lone Star is a member of ACA a voluntary association of employers engaged in the manufacturing of construc tion materials and organized for the purpose of repre senting its employer members including Lone Star in negotiating and administering labor contracts with the employees collective bargaining representatives of its employer members Accordingly I find and Respondents admit Lone Star and the employer members of ACA at all times ma i The charges were filed against the Respondents Construction Build mg Material Teamsters & Miscellaneous Workers Local 291 Internation al Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America AFL-CIO Teamsters Automotive Employees Union Local No 78 International Brotherhood of Teamsters Chauffeurs Warehouse men and Helpers of Amenca AFL-CIO Building Material Teamsters Local 216 International Brotherhood of Teamsters Chauffeurs Ware housemen and Helpers of America AFL-CIO Freight Construction General Drivers Warehousemen and Helpers Teamsters Union Local 287 International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America AFL-CIO General Truck Drivers Warehouse men Helpers and Automotive Employees Local 315 International Broth erhood of Teamsters Chauffeurs Warehousemen and Helpers of Amer ica AFL-CIO and Warehouse Mail Order Retail Employees and Wholesale Liquor Salespersons Local 853 International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America AFL- CIO 291 NLRB No 98 582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tenal are employers engaged in commerce or in a bust ness affecting commerce within the meaning of Section 2(2) (6) and (7) of the Act II THE LABOR ORGANIZATIONS INVOLVED I find and it is admitted that each of the Respondent Unions is and at all material times has been a labor or ganization within the meaning of Section 2 (5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A The Facts There was little evidence adduced and most of it was undisputed The evidence of employer operations dealt exclusively with the delivery of ready mixed cement Most of the deliveries are made from batch plants A batch plant was described as a facili y that combines var ions aggregate sand formula for the purpose of mixing materials that become cement There are portable batch plants which can be installed at the construction site at very large jobs and they are used to manufac ure con crete at the jobsite so that all delivery of the cement is effected by trucks or other mechanisms that are on the jobsite at all times There was no evidence that any sig natones to the agreement had portable batch plants or how much of their business if any such plants represent All the evidence referred to apparently permanent loca tions not at construction sites which were purchased by Lone Star over the past few years The collective bargaining agreement set forth the dif ferent classifications of the employees covered by its terms including drivers of wet mix trucks dump trucks semi end dump trucks flat racks pickup drivers parts pickup and delivery powerbroom sweepers aggregate and bulk cement trucks plus warehousemen including helper and forklift and employees labeled other than drivers of wet mix trucks including plant laborers batchmen and wet mix loaders top men or belt and/or loader operator hopper (grizzly) operators and lubnca tion tire fuel and cleaning personnel Section 23 of the collective bargaining agreement pro vides This agreement shall be binding upon the heirs executors administrators successors purchasers lessees and assigns of the parties hereto The employer shall give written notice of the ex istence of this Agreement to any purchaser succes sor lessee or assignee of the operation covered by this agreement or any part thereof The affected union shall be notified in writing of any change in operations and shall be given a reasonable opportu nity to discuss the matter with the purchaser suc cessor lessee or assignee before the actual change in operations takes place 2 Prior agreements between ACA and the Respondents also contained similar language The Respondent Unions pursuant to the grievance procedures of the collective bargaining agreement meet on the first Thursday of each month to administer the agreement and resolve disputes arising under the con tract The only witness to attend these meetings Richard Durossete president of Teamsters Construction Local 291 cannot recall any grievances or other questions ans ing from section 23 of the collective bargaining agree ment Also section 23 was not discussed during negotia tions for the past two collective bargaining agreements Durossete further testified that he knew of no lease transactions that subjected the lessee to section 23 of the collective bargaining agreement The Charging Party in troduced a lease it executed with Sakrete of Northern California effective May 15 1987 shortly before the cur rent collective bargaining agreement became effective This lease agreement contains provisions requiring Sak rete to adopt the then effective collective bargaining agreement The complaint does not assert this lease is violative of the Act and the evidence clearly establishes it was effective prior to the effective date of the collet tive bargaining agreement here in issue It was admitted by counsel for the General Counsel that the Sakrete lease was not in issue in this proceeding The evidence is pertinent to the credibility of Durossete who testified that no lease was ever made subject to section 23 of the collective bargaining agreement 3 Durossete had re ceived notification of the Sakrete lease including the re quirement that Sakrete agreed to be bound by the terms of the collective bargaining agreement which became of fective June 1 1984 and was to expire May 31 1987 The collective bargaining agreement also has a union security clause and the Respondent Unions operate ex clusive hiring halls that the employer members of ACA are required to use The collective bargaining agreement has health and welfare pension and supplemental income trust plans B Position of the Parties The General Counsel argues that section 23 of the col lective bargaining agreement is facially unlawful and in violation of Section 8(e) of the Act because it binds a lessee to adopt the contract in toto Respondents claim section 23 is ambiguous because other clauses of the agreement raise the issue that the clause could be lawfully applied Also Respondents note that section 23 as it applies to lessees has never been applied in the collective bargaining relationship or that the parties have even discussed its possible application Another defense raised by Respondents is that the provi sion is exempted by the construction proviso to Section 8(e) Respondents seek an inference that ready mix con crete is frequently delivered to construction sites and 2 Sec 24 of the agreement also refers to leases as follows a Merger Lease or Purchase Employee when employed by the in dividual employer as a result of the merger lease or purchase of an other firm shall be integrated with the new employers work force for purposes of vacation credit health and welfare pensions paid holidays and sick leave The parties hereto shall not use a leasing device to a third party to evade this agreement There was no showing that sec 24 interprets or limits the applicability of the terms of sec 23 of the collective bargaining agreement and I find this provision does not abrogate or modify the efficacy of sec 23 and it does not create an ambiguity in the terms of sec 23 3 There was no evidence concerning why the lessee adopted the prede cessor s collective bargaining agreement TEAMSTERS LOCAL 291 (LONE STAR INDUSTRIES) 583 that these employees as well as other employees such as powerbroom sweepers and those serving a portable batch plant are engaged in construction activities and are subject to the proviso to Section 8(e) Finally Re spondents note that there are frequently short term leases of equipment and drivers in the ready mix industry and where such agreements are between signatories to the collective bargaining agreement they are lawful and Section 23 serves a legitimate function in such situations where the lessee is not a party to the agreement 4 Analysis and Conclusions Section 8(e) provides It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement express or implied whereby such employer ceases or refrains or agrees to cease or refrain from handling using selling transporting or otherwise dealing in any of the products of any other employer or to cease doing business with any other person and any contract or agreement en tered into heretofore or hereafter containing such an agreement shall be to such extent unenforceable and void The construction industry proviso to Section 8(e) states [N]othing in this subsection (e) [this subsection] shall apply to an agreement between a labor organ[ zation and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction al teration painting or repair of a building structure or other work In interpreting this section of the Act the Board has held in Hotel & Restaurant Employees Local 531 (Verdugo Mills Bowl) 237 NLRB 1204 1206 (1978) Section 8(e) of the Act makes it an unfair labor practice for an employer and a union to enter into an agreement express or implied to cease doing business with another person The lawfulness of a provision in an agreement which restricts an em ployer s leasing of work as does the disputed clause herein depends upon whether the Union s objective was preservation of work for em ployees or whether the agreements were tacti cally calculated to satisfy union objectives else where The touchstone is whether the agree ment or its maintenance is addressed to the labor re lations of the contracting employer vis a vis his own employees * Although there is some evidence that Lone Star did loan equipment to companies it acquired both before and after the acquisitions there was no detailed evidence of any industry practices regarding the loaning of equipment that would permit the finding urged by Respondents Accord ingly I find this argument is unpersuasive for this and other reasons dis cussed below National Woodwork Mfrs Assn v NLRB 386 U S 612 644-645 (1967) The applicability of Section 23 of the agreement to lessees has not been shown to be ad dressed to the labor relations of the contracting employ er visa vis his own employees Respondent Unions have not established and/or even argued that the disput ed provisions serve a valid work preservation purpose in the interest of bargaining unit employees It is well established that contract clauses that purport to limit leasing to employers who are signatories to union contracts so called union signatory clauses are prohibited by Section 8(e) Repeatedly the Board has held that the sale or trans fer of an enterprise is generally considered not as a busi ness transaction within the scope of Section 8(e) but a substitution of one entity for another while the conduct of business continues without interruption Operating En gineers Local 701 (Cascade Employers Assn) 221 NLRB 751 (1975) Machinists District 71 (Harris & Trailer Sales) 224 NLRB 100 (1976) A lease in contrast is generally not comparable to a sale there is no permanent transfer where one entity is substituted for another Hotel & Res taurant Employees Local 531 (Verdugo Hills Bowl) 237 NLRB 1204 (1978) In this case there is no contention that the provisions of section 23 of the collective bargaining agreement as they apply to leases is sufficiently related to sales to constitute a form of doing business within the meaning of Section 8(e) Section 23 of the agreement by its terms distinguishes a sale from the leases mentioned therein for they are both mentioned in the disjunctive clearly mdi cating that one is not encompassed in the other Retail Clerks Local 324 (Ralphs Grocery Co) 235 NLRB 711 (1978) Also section 23 unlike section 24 of the collective bar gaining agreement does not restrict signatory employers from leasing to persons who have also signed the agree ment thus its effect is identical to a union signatory clause Employer members of ACA are prohibited from leasing to persons who do not or will not recognize Re spondents and become bound by their agreement Thus the lease reference is sufficiently distinguished from a sale to constitute doing business within the meaning of Section 8(e) Accordingly I find the provisions of sec tion 23 of the agreement as it applies to leases violates Section 8(e) for it exceeds the legitimate primary purpose of protecting unit work and is directed at the secondary purpose of furthering general union objectives Retail Clerks Local 1428 (Jones & Jones) 155 NLRB 656 659- 660 (1965) The lack of any mention in the complaint or evidence that Respondents did not actively enforce the provision as to leases does not alter this conclusion for the Board has consistently held that the maintenance of such an agreement constitutes entering into within the mean mg of Section 8(e) it is not necessary that there be a demand for compliance Teamsters Local 982 (J K Barker Trucking Co) 181 NLRB 515 (1970) and Dan McKinney Co 137 NLRB 649 (1962) cf Masters Mates & Pilots (Cove Tankers Corp) 224 NLRB 1626 (1976) 584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I further find unpersuasive Respondents argument that section 23 of the contract as it relates to leases is not clearly unlawful on its face because of other provisions of the contract As held in Teamsters Local 982 (J K Barker Trucking Co) supra at 517 In resolving the foregoing question the Board in a line of decisions has evolved what are essentially rules of construction which have been useful in its disposition of many clauses under this section of the Act Thus if the meaning of the clause is clear the Board will determine forthwith its validity under 8(e) and where the clause is not clearly unlawful on its face the Board will interpret it to require no more than what is allowed by law On the other hand if the clause is ambiguous the Board will not presume unlawfulness but will consider extrinsic evidence to determine whether the clause was in tended to be administered in a lawful or unlawful manner In the absence of such evidence the Board will refuse to pass on the validity of the clause I conclude that the claim of ambiguity is unpersuasive and unsupported As noted above there is no basis to conclude that any of the mentioned or other provisions of the contract create ambiguity in the provisions of sec tion 23 of the agreement Section 24 does not refer to section 23 or abrogate its applicability to lessees who are not signatories to Respondents agreement There is no other provision in the contract that invalidates the appli cability of the clause to lessees that are not signatories to the collective bargaining agreement I find Respondents claim that there is ambiguity in section 23 because of other provisions in the contract to be unpersuasive and specious They have failed to demonstrate that any other provision of the agreement introduces this claimed ambi guity I find equally specious Respondents claim that the construction proviso is applicable to this case because cement is delivered on occasion to construction sites and there are portable batch plants used in the industry There is no evidence that any of the employer members of ACA have a portable batch plant or use one There is also a lack of evidence that employees covered by the contract were involved in work which is exempted by the proviso At least some of the employees described in the agreement such as forklift drivers warehousemen and loaders were not shown to have performed any work at a construction jobsite 5 5 The Court in Woelke & Romero Framing v NLRB 456 U S 645 655 (1982) held The legislative history contains several references to the construc Lion industry proviso After noting that the proviso extends only to work to be performed at the site of the construction the Conference Report states The committee of conference does not intend that this proviso should be construed so as to change the present state of the law with respect to the validity of this specific type of agreement relat ing to work to be done at the site of a construction project or to remove the limitations which the present law imposes with respect to such agreements Assuming that some of the work of employees cov ered under the Respondents collective bargaining agree ment deliver cement to construction sites there is no showing that such activity is considered to be covered by the proviso As the Board held in Teamsters Local 982 (J K Barker Trucking) supra at 518 the provisions un lawfully exceeded the bounds of the construction site ex emption to 8(e) since the provisions sought to control the subcontracting of the work of delivering materials prod ucts and supplies to the construction site Citing Team sters Local 294 (Island Dock Lumber) 145 NLRB 484 491-492 (1963) Cement Masons Local 97 (Jones & Jones) 149 NLRB 1127 (1964) and Los Angeles Building Trades Council (Jones & Jones) 150 NLRB 1590 (1964) Section 23 of the agreement does not permit nonsignatory ven dors to make deliveries to construction jobsites and thus is on its face a union signatory clause Respondents presented no evidence that employees covered by the agreement perform any work at con struction jobsites after delivering materials Section 8 of the contract does mention drivers of dumptrucks flat racks and powerbrooms but there was no evidence that any of the employer members of ACA employ drivers that do anything other than deliver cement or related products In sum there is no basis to find that any em ployees of the signatory employers are engaged in con struction work at a construction site Further even if delivery of materials to a construction jobsite is considered covered by the construction Indus try proviso section 23 of the agreement also clearly covers offsite work performed by warehousemen load ers hopper operators forklift drivers and other employ ees that are not engaged in the delivery of products to a construction jobsite thus Section 8(e) is applicable and violated Section 23 is not limited to leases involving work to be performed at construction sites Thus section 23 would exceed the limits of the construction industry proviso even if delivery of supplies to the site was con sidered work protected by the proviso As the Board held in Associated General Contractors 280 NLRB 698 at 702 (1986) Moreover the provisions on their face apply to work done both on and off the jobsite and therefore do not fall within the protection of the con struction industry proviso of Section 8(e) Cf Teamsters Joint Council 42 (Irvine Santa Fe Co) 248 NLRB 808 815 (1980) enfd 702 F 2d 168 (9th Cir 1983) On the basis of the foregoing I find that the Respond ents by maintaining the provisions of section 23 of the contract to apply to lessees have violated Section 8(e) of the Act CONCLUSIONS OF LAW 1 Lone Star Industries Inc and the employer mem hers of Aggregates and Concrete Association are em ployers engaged in commerce or in industry affecting commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 The various named Respondents are labor organiza tions within the meaning of Section 2(5) of the Act 3 By entering into and maintaining the aforemen tioned section 23 of the June 1 1987 through May 31 TEAMSTERS LOCAL 291 (LONE STAR INDUSTRIES) 585 1990 collective bargaining agreement between the Ag gregates and Concrete Association and Respondent Unions which makes this agreement binding on lessees of employer members of the Aggregates and Concrete Association the Respondents have engaged in unfair labor practices in violation of Section 8(e) of the Act 4 The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondents have engaged in unfair labor practices I recommend they be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the purposes of the Act 6 On the basis of these findings of fact and conclusions of law and on the entire record I issue the following recommended' ORDER The various named Respondents their officers agents and representatives shall 1 Cease and desist from entering into maintaining giving effect to or enforcing the provisions of section 23 of the June 1 1987 through May 31 1990 collective bar gaining agreement between the Respondents and the Ag gregates and Concrete Association insofar as it makes this agreement binding on lessees of employer members of the Aggregates and Concrete Association 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Post at their business offices meeting halls and other places where notices to their members are custom arily posted copies of the attached notice marked Ap pendix 8 Copies of the notice on forms provided by the Regional Director for Region 32 after being signed by the Respondents authorized representative shall be posted by the Respondents immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are cus tomanly posted Reasonable steps shall be taken by the Respondents to ensure that the notices are not altered defaced or covered by any other material (b) Sign and mail to the Regional Director for Region 32 sufficient copies of the notice for posting at the prem ices of Lone Star Industries Inc and the other employ er members of the Aggregates and Concrete Association if willing 6 Inasmuch as there is no allegation of leases directly attributable to the maintenance of sec 23 of the collective bargaining agreement as it applies to lessees no reimbursement order is warranted Shepard v NLRB 459 U S 344 (1987) and Teamsters Joint Council 42 (Irvine Santa Fe Co) supra 248 NLRB 808 815 (1980) r 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 put poses 8 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 (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent Unions have taken to comply APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice WE WILL NOT enter into maintain give effect to or enforce the provisions of Section 23 as they pertain to leases of our June 1 1987 through May 31 1990 collec tive bargaining agreement with Aggregates and Concrete Association and Teamsters Local Unions 291 78 216 287 315 and 853 International Brotherhood of Team sters Chauffeurs Warehousemen and Helpers of Amer Ica AFL-CIO to the extent that such provisions violate Section 8(e) of the National Labor Relations Act CONSTRUCTION BUILDING MATERIAL TEAMSTERS & MISCELLANEOUS WORKERS LOCAL 291 INTERNATIONAL BROTHER HOOD OF TEAMSTERS CHAUFFEURS WAREHOUSEMEN AND HELPERS OF AMER ICA AFL-CIO TEAMSTERS AUTOMOTIVE EMPLOYEES UNION LOCAL No 78 INTERNATIONAL BROTHERHOOD OF TEAMSTERS CHAUF FEURS WAREHOUSEMEN & HELPERS OF AMERICA AFL-CIO BUILDING MATERIAL TEAMSTERS LOCAL 216 INTERNATIONAL BROTHERHOOD OF TEAMSTERS CHAUFFEURS WAREHOUSE MEN & HELPERS OF AMERICA AFL-CIO FREIGHT CONSTRUCTION GENERAL DRIVERS WAREHOUSEMEN AND HELPERS TEAMSTERS UNION LOCAL 287 INTERNA TIONAL BROTHERHOOD OF TEAMSTERS CHAUFFEURS WAREHOUSEMEN & HELP ERS OF AMERICA AFL-CIO GENERAL TRUCK DRIVERS WAREHOUSE MEN HELPERS AND AUTOMOTIVE EM PLOYEES LOCAL 315 INTERNATIONAL BROTHERHOOD OF TEAMSTERS CHAUF FEURS WAREHOUSEMEN & HELPERS OF AMERICA AFL-CIO WAREHOUSE MAIL ORDER RETAIL EM PLOYEES AND WHOLESALE LIQUOR SALES PERSONS LOCAL 853 INTERNATIONAL BROTHERHOOD OF TEAMSTERS CHAUF FEURS WAREHOUSEMEN & HELPERS OF AMERICA AFL-CIO