Painters And Allied Trades District Council No. 51 Of The International Brotherhood Of Painters And Allied Trades, Afl--Cio

618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Painters and Allied Trades District Council No. 51 of the International Brotherhood of Painters and Allied Trades, AFL-CIO and Manpnaro Corporation, Maryland and A.C. and S., Inc. Cases 5-CC-1036, 5-CB-4687, 5-CC-1038, and 5-CB-4689 August 29, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT, DEVANEY, AND OVIATT On December 18, 1986, Administrative Law Judge Marvin Roth issued the attached decision The Charging Parties and the General Counsel filed exceptions and supporting briefs, and the Re- spondent filed an answering brief' The Respond- ent filed cross-exceptions and a supporting bnef, and the Charging Parties and the General Counsel filed answering briefs Amicus curiae briefs were filed by the Associated General Contractors of America and the American Federation of Labor and Congress of Industrial Organizations and the Building and Construction Trades Department, AFL-CIO 2 For reasons explained below, the Board has de- cided to remand this proceeding to the administra- tive law judge for a further hearing and for a sup- plemental decision This case involves unfair labor practice charges filed by Manganaro Corporation and by A C & 5, Inc (and its successor, Commercial Interior Builders, Inc , referred to as ACS or ACS/CIB),3 against the Painters and Allied Trades District Council No 51 (the Union), alleging that the Union violated Section 8(b)(4)(1) and (n)(A) and Section 8(b)(3) by striking to force Manganaro and ACS to sign an anti-dual-shop clause4 dunng con- 'The Respondent and the Charging Party, Manganaro Corporation, Maryland, have requested oral argument Their requests are denied as the record, exceptions, and briefs adequately present the issues and the posi- tions of the parties 2 We grant the motions for leave to file bnefs as amicus curiae filed by the Associated General Contractors of America and by the Amencan Federation of Labor and Congress of Industrial Organizations and the Building and Construction Trades Department, AFL-CIO 'This case ongmally involved four Charging Parties—Manganaro, ACS, John Hampshire, and Maryland Drywall Prior to the hearing, Maryland Drywall reached a settlement with the Union and withdrew its charges Shortly after the hearing started, Hampshire was given leave to withdraw Its charges and the complaint allegations involving Hampshire were dismissed on motion of the General Counsel, following a non-Board settlement agreement Midway through the 22-day hearing, both Man- ganaro and ACS filed motions to withdraw their charges Subsequently, Manganaro filed a withdrawal of its prior motion to withdraw charges On April 8, 1986, the judge denied ACS's motion to withdraw charges and accepted Manganaro's withdrawal of Its motion to withdraw its charges 4 An anti-dual-shop clause is a clause that seeks to protect the employ- ees in the bargaining unit from the effects of "double-breasting," a phe- nomenon that has swept through the construction industry in recent years "Double-breasting" generally refers to a union employer's acquisi- tract negotiations between the Union and the Paint- ing, Decorating, and Drywall Finishing Contrac- tors of Washington, D C (the Association) Man- ganaro also filed an 8(b)(4)(i) and (n)(B) charge against the Union, alleging that the Union refused to refer employees to Manganaro to force it to cease doing business with Manganaro Brothers, Manganaro Industnes, and Manganaro Holdmg,3 so that Brothers, Industries, and Holding will cease domg business with Sweeney unless the agreement sought by the Respondent is applied to Sweeney Manganaro, ACS/CIB, and Sweeney (Mangan- aro's "dual shop") are engaged in the business of installing drywall in the buildmg and construction industry Manganaro, Sweeney, and Manganaro Corporation, New England are owned by Mangan- aro Industries In 1977 the Manganaros incorporat- ed the Manganaro and Sweeney companies in the Washington, D C metropolitan area Manganaro was formed to operate as a unionized firm and Sweeney as a nonunion firm In May 1981, Man- ganaro and ACS/CIB signed memoranda of under- standing binding them to the 1981-1984 contract between the Union and the Association Both Man- ganaro and ACS/CIB were signatories to contracts with Painters' locals in other jurisdictions and were bound, when working outside those jurisdictions, to abide by the Painters' contract in effect in the geographic jurisdiction Dunng negotiations for a successor contract, the Umon sought inclusion of an anti-dual-shop clause in exchange for a market recovery plan desired by the contractors in order to make them more com- petitive with nonunion contractors By May 15, the expiration date of the 1981-1984 contract, the painting contractors had agreed to the terms of a contract, including acceptance of the Union's anti- dual-shop clause Because the drywall contractors refused to include the anti-dual-shop clause in the contract, however, the Union and the drywall con- tractors were at impasse on May 15 From May 16 until it was enjoined in November 1985 in a Sec- tion 10(1) proceeding, the Union refused to refer employees to the jobsites of Manganaro and ACS/CIB The judge found that the General Counsel had established a prima facie case that the Union violat- tion, formation, or maintenance of a separate company to perform the same type of work in the same geographic area covered by its union agreement 5 Manganaro Maryland, Manganaro New England, and Sweeney Com- pany are wholly owned subsidiaries of Manganaro Holding Company (Holding), which is a wholly owned subsidiary of Manganaro Brothers, Inc (Brothers), which is a wholly owned subsidiary of Manganaro Indus- tries, Inc (Industries) All six corporations are commonly owned by brothers John and Frank Manganaro Prior to February 28, 1984, another brother, Anthony Manganaro, was also a co-owner 299 NLRB No 86 PAINTERS DISTRICT COUNCIL 51 (MANGANARO CORP ) 619 ed Section 8(b)(4)(0 and (u)(A) 6 in that the anti- dual-shop clause deals with the relationship be- tween the signatory employer and other "employ- ers" or "persons" within the meaning of the Act, and constitutes an agreement to "cease doing busi- ness" with other employers or persons within the meaning of Section 8(e) The judge did not address whether the clause has a secondary objective and thereby falls withm the general proscription of Sec- tion 8(e), or whether the Union's proposed clause constitutes a primary work-preservation clause and therefore does not violate Section 8(e) 7 The judge found that he was unable to resolve this question because, in an Order dated Apnl 14, 1986, the Board precluded him from considering this issue by quashing a subpoena directed to ACS for the production of documents showing, inter aim, bids and contracts in the Washington, D C metropolitan area, and commumcations among ACS and related corporations, including commum- cations related to the 1984 contract negotiations The Board also determined in an Order dated July 16, 1986, that Russell Seifert's testimony concern- ing the relationship between ACS and related com- panies was not relevant because the complaint did not allege that the Union had violated Section 8(b)(4)(B) by coercing ACS The Union has excepted to the judge's failure to address whether the preservation-of-work clause had a lawful primary object and to the Board's Orders of April 14 and July 16, 1986 On further consideration of the relevance of the documents sought by the Union and the testimony the Union attempted to elicit from Seifert, and in view of the necessity of this information to resolve the work- preservation issue, we vacate the Board's Orders dated April 14 and July 16, 1986, and we remand this case to the judge to allow him to take addi- tional evidence and to determine whether the clause at issue is valid as a primary work-preserva- tion clause In order to define further the issues on remand, we have considered the judge's finding that Man- Sec 8(b)(4X0 and (n)(A) of the Act, in pertinent part, prohibits a labor organization from engaging in, or inducing or encouraging any in- dividual employed in commerce or in an Industry affecting commerce to engage in strikes or refusals to perform services, or threatening, coercing, or restraining persons engaged in commerce, or in an industry affecting commerce, where in either case an object of such conduct is to force or require any employer or self-employed person "to enter into any agree- ment which is prohibited by Section 8(e)" of the Act The General Coun- sel alleges that the Union violated Sec 8(b)(4) by bargaining to Impasse on a contract containing the clause at issue, and by refusing to refer em- ployee-members to the jobsites of the Charging Parties for the purpose of compelling them to enter Into a contract containing that clause 'Rather than addressing whether the clause falls within the general proscription of Sec 8(e), the judge first addressed the applicability of the construction Industry proviso to Sec 8(e) and the 8(bX4)0) and (n)(A) and 8(6X3) allegations of the complaint The judge found the clause within the protection of the construction industry proviso ganaro and ACS are part of the multiemployer bar- gaining unit of painting and drywall finishing con- tractors in the Washington D C area We find that neither Manganaro nor ACS is a part of the multi- employer unit The most recent collective-bargaining agreement between the Union and the Association was effec- tive from May 15, 1981, through May 15, 1984 8 The contract lists 25 painting and decorating con- tractors and 13 drywall finishing contractors The named drywall contractors include John H Hamp- shire and Maryland Drywall Company, two former charging parties in this case, but do not include Manganaro and ACS/CIB Before the negotiations began for the new con- tract, the Union and some signatory employers met on November 8, 1983, and discussed how to main- tain their position in the construction market and become competitive with the rapidly burgeoning nonumon market The employers wanted to partici- pate in the market-recovery program, and the Union wanted to develop some program that would make the employers competitive The nego- tiations began on November 30, 1983, 9 with repre- sentatives of 11 contractors, including Manganaro, present The employers presented a proposal that featured wage reductions and greater employer flexibility in operations The Union rejected that proposal The next negotiating session took place on Janu- ary 4, 1984 10 At that meeting, the Union request- ed a letter of authorization from the contractors in- dicating "who will be represented as [association] members and who are independent contractors" Jim Ballard of Ballard & Associates, the contrac- tors' spokesman, responded that "all contractors are sitting as independent contractors" The parties met again on February 15 The parties continued to exchange proposals, but could not agree on any proposals The employers collectively formulated proposals and responses to the Union's proposals and announced their position through their spokes- man At the February 22 session, Ballard again stated, in response to the Union's inquiry, that each con- 8 The Union has historically negotiated a single master contract with the Association covering employees employed by the signatory employ- ers in connection with commercial painting and drywall finishing con- tracts in the Washington, D C area In Apex Decorating Co, 275 NLRB 1459, 1460 (1985), the Board found that "all journeymen and apprentices, including temporary employees employed by the employer-members of the Association constitute a unit appropriate for the purposes of col- lective-bargaining and that the employees were covered by the 1981-1984 contract" a Contrary to the Charging Parties' assertion that contract negotiations did not begin until January 4, 1984, the judge correctly found that negoti- ations began on November 30, 1983 '° All dates refer to 1984 unless otherwise noted 620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tractor was representing itself Michael Monroe was the spokesman for the Union at the meeting Monroe presented a package proposal, which con- sisted of a market recovery plan coupled with an anti-double-breasting clause Although the employ- ers favored the Union's market recovery plan, they did not accept the anti-dual-shop proposal The drywall contractors contended that the clause was illegal and that they could not agree to it After Monroe presented the Union's package proposal, Richard Jackson of Manganaro, on behalf of the drywall contractors, asked the Union to meet with the drywall contractors separately Jack- son stated that he was not asking for a separate contract, but wanted to address the drywall con- tractors' needs He also said that he saw no point in sitting through the discussion of matters only perti- nent to the painting contractors Monroe agreed to meet with the drywall contractors separately and, from that point forward, Jackson acted as the spokesman for the drywall contractors At the next bargaining session on March 14, the Union present- ed its package proposal in writing, mcludmg an anti-double-breasting clause This bargaimng ses- sion was attended by both painting and drywall contractors On April 26 the drywall contractors met sepa- rately with the Union for the first time Six drywall contractors attended This was the first negotiating session at which ACS was represented Although the parties made progress on the concessions pro- posals, they could not agree on any type of anti- dual-shop clause By May 15, the expiration date of the 1981-1984 contract, the painting contractors agreed to accept the anti-dual-shop clause and incorporated it in a contract The Union met again with the drywall contractors on May 15 The contractors were will- ing to accept the market-recovery proposal without the work-preservation clause Jackson and Monroe finally agreed that the parties were at impasse Monroe took the position at that meeting that be- cause of Manganaro's painting contract in Boston, and ACS' contract in Baltimore, they were obligat- ed to abide by whatever contract was ratified by the Union's membership The Union and the drywall contractors met again on May 30 In response to the employer's question, the Union stated that it was bargaining with the drywall contractors individually The em- ployers rejected the Union's proposal for accept- ance of the ratified contract, along with strike-com- pensation pay This was the last time that the em- ployers met collectively to negotiate with the Union The Union subsequently met with individ- ual drywall contractors, some of whom signed the contract agreed to by the painting contractors In finding that Manganaro and ACS/CIB are part of a multiemployer bargaining unit of employ- ers signatory to or bound by the 1981-1984 master contract with the Union, the judge reasoned that the Union had always negotiated a single master contract through multiemployer negotiations and had never negotiated separate contracts with mdi- vidual employers The Union's practice of permit- ting certain employers to sign memoranda of un- derstanding bmdmg them to the master contract is limited to employers who are signatory to a Paint- ers' union contract in another jurisdiction Painters' union contracts usually require that signatory em- ployers must comply with the area Painters' con- tract when working in another jurisdiction The judge also referred to Apex Decorating Co, 275 NLRB 1459 (1985), where the Board determined that there was a multiemployer bargaining unit of employers signatory to the 1981-1984 contract The judge determined that because both Mangan- aro and ACS had signed memoranda of under- standing bmdmg them to the 1981-1984 contract, they became part of the multiemployer unit The judge, however, never found, nor was there record evidence presented, that the Charging Parties had joined the Association We disagree with the judge, and find that the Charging Parties never became members of the multiemployer bargaining unit Although the Board held m Apex Decorating Co that the employer- members of the Association constituted a multiem- ployer bargammg umt, neither Manganaro nor ACS was a member of the Association In addition, no evidence of prenegotiation conduct was present- ed to show that either Manganaro or ACS had au- thorized the Association to negotiate on its behalf The only evidence that Manganaro and ACS were members of the multiemployer bargaimng group is that they had signed memoranda of understanding with the Union bmdmg them to the 1981-1984 con- tract and manifested an intent to sign memoranda of understanding binding them to a new agreement It is well established that in itself, "adoption of an area contract is insufficient to make an em- ployer part of a multiemployer umt " Schaetzel Trucking, 250 NLRB 321, 323 (1980), citing Gordon Electric Go, 123 NLRB 862, 863 (1959) See also Moveable Partitions, 175 NLRB 915, 916 (1969) Although Richard Jackson participated in the ne- gotiations for Manganaro Corporation, Russell Sei- fert from ACS did not even attend a negotiation session until April 26, 1984, when the negotiations were practically concluded "The mere fact that an employer bargains in conjunction with other em- PAINTERS DISTRICT COUNCIL 51 (MANGANARO CORP ) 621 players does not necessarily mean that it must sign any contract that is negotiated by the group" Charles D Bonanno Linen Service v NLRB, 454 U S 404, 419 (1982) (Stevens, J, concurring) To be bound by the terms of the group negotiation, an employer must "have indicated from the outset an unequivocal intention to be bound in collective bar- gaming by group rather than individual action" Weyerhaeuser Co, 166 NLRB 299 (1967), enfd sub nom Western States Regional Council v NLRB, 398 F 2d 770, 773 (D C Cir 1968) See also H & D, Inc v NLRB, 670 F 2d 120, 122 (9th Cir 1982), Ruan Transport Corp, 234 NLRB 241, 242 (1978) In the instant case, the Umon was clearly in- formed that the contractors were bargammg indi- vidually, and not as a group As stated above, on January 4 Jim Ballard, the contractors' spokesman, stated in response to the Union's request for a letter of authorization from the contractors, that "all con- tractors are sitting as mdependent contractors" At the February 22 session, Ballard again stated, in re- sponse to the Union's inquiry, that each contractor was representing itself Moreover, on April 26 and May 15 and 30, the Union met separately with the drywall contractors to negotiate a contract On May 30, in response to the employer's question, the Union stated that it was bargaining with the drywall contractors individually Accordmgly, we find that, under the facts of this case, the sigmng of memoranda of understandmg by the Charging Parties, along with their limited participation in the negotiations, was insufficient to bind them to the multiemployer bargaining unit 11 Because we find that the Charging Parties never jomed the multiemployer bargaimng unit, we need not address the judge's findmg that they did not timely withdraw from that unit 12 ORDER It is ordered that the record in the proceeding is reopened and that a further hearing be held before Administrative Law Judge Marvin Roth for the purpose of taking testimony and receiving evidence from the parties, consistent with our decision here IT IS FURTHER ORDERED that this proceeding is remanded to the administrative law judge for the purpose of arranging such further hearing, and that the administrative law judge is authorized to issue notice thereof IT IS FURTHER ORDERED that on conclusion of the further hearing, the administrative law judge " We, of course, make no finding with respect to whether the Asso- ciation members were engaged in multiemployer bargaining, or whether they were bargaining as individual employers 12 We reserve ruling on all the Issues not resolved in this remand Order shall prepare and serve on the parties a decision containing credibility resolutions, findings of fact, conclusions of law, and recommendations to the Board, and that following service of such decision on the parties, the provisions of Section 102 46 of the Board's Rules and Regulations shall be applica- ble Richard L Ahearn, Esq , for the General Counsel David Jonathan Cohen, Esq , of Washmgton, D C, for the Respondent 1 Peter Chatilowcz Esq and Marc Alan Silverstein, Esq , of Washington, D C, for Charging Party Manganaro Corporation, Maryland Jerome A Hoffman, Esq and Michael A Curley, Esq , of Philadelphia, Pennsylvania, for Charging Party A C & S, Inc DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge These consolidated cases2 were heard at Washington, D C, on 22 days during the period from 25 November 1985 through 12 June 1986 The charges in Cases 5-CC-1036 and 5-CB-4687 were filed respectively on 1 and 6 June 1984 by Manganaro Corporation, Maryland (Manganaro Maryland) The charges in Cases 5-CC-1038 and 5-CB- 4689 were filed respectively on 4 and 6 June 1984 by A C & 5, Inc (A C & S) The consolidated complaint, which issued on 15 November 1985, alleges that Painters and Allied Trades District Council No 51 of the Inter- national Brotherhood of Painters and Allied Trades, AFL-CIO (Union or Respondent) violated Sections 8(b)(3) and 8(b)(4)(i)(n)(A) and 8(b)(4)(1) and (n)(B) of the Act The gravamen of the consolidated complaint is that the Union allegedly demanded that Manganaro Maryland and A C & S or its successor Commercial In- tenor Builders, Inc (CIB) enter into contracts containing provisions which are prohibited by Section 8(e) of the Act in that they require a contracting employer to cease doing busmess with other persons, and which do not per- tam to the terms and conditions of employment of the bargaining unit employees The complaint further alleges that in furtherance of its demands, the Union bargained to impasse and thereafter refused to refer employee members to the jobsites of Manganaro Maryland, A C & S and CIB The Union's answer denies the commission of the alleged unfair labor practices During the course of this proceeding there were changes in represen- tation for General Counsel and the various Charging Parties There were also appearances by counsel on behalf of Intervenors and subpoenaed persons The appearances listed above are those of counsel of record at the close of the hearing whose names also appear as counsel on the postheanng briefs 2 The caption has been amended to reflect deletion of Case 5-CH- 4992, in which John H Hampshire, Inc was the charging party was de- leted Complamt allegations involving Hampshire were dismissed on 15 January 1986, following a settlement agreement 622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On the entire record in this case s and from my obser- vation of the demeanor of the witnesses, and having con- sidered the arguments of counsel and briefs submitted by General Counsel, the Charging Parties, and Respondent, I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW JURISDICTION Manganaro Maryland and Sweeney Company of Maryland (Sweeney or Sweeney Company, the alleged primary in the secondary boycott case), are each Mary- land corporations with their principal place of business in Greenbelt, Maryland, and each is engaged in the installa- tion of drywall in the building and construction industry In the course of their respective operations, Manganaro Maryland and Sweeney each annually purchases goods and materials valued in excess of $50,000 from suppliers located outside of Maryland Until April 1985, A C & S, a Delaware corporation with a principal office in Lancaster, Pennsylvania, was engaged through its Balti- more-Washington Architectural Branch, with offices in Columbia, Maryland, in interior finishing in the building and construction industry Commercial Interior Builders, Inc (CIB), a Delaware corporation with its prmcipal of- fices in Columbia, Maryland, took over the operations of the Baltimore-Washington Architectural branch of A C & S, and is the successor to that Branch In the course of its operations, CIB annually purchases goods and materi- als valued in excess of $50,000 from suppliers located outside of Maryland Manganaro Maryland, Sweeney, and A C & S or its successor CIB are now and have been at times material employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act The Union is a labor organization within the meaning of the Act I find that it would effectuate the purposes of the Act for the Board to assert its junsdiction in this case H THE ALLEGED UNFAIR LABOR PRACTICES A The Pattern of Bargaining Prior to the 1984 Negotiations, the Negotiations for a 1984 Contract, and the Union's Alleged Unlawful Demands, Bargaining, and Refusal to Refer Employees The Union, a distnct council of the International Brotherhood of Painters and Allied Trades, was formed in the early 1950s The Umon comprises three "mixed construction" local unions (Local 368, based in the Dis- trict of Columbia, Local 1773, based in suburban Mary- land, and Local 890, based in Alexandria, Virginia), "gla- ziers" Local 963, and "utility" Local 1937 The Union has historically negotiated a single master contract on behalf of the three mixed construction locals with Paint- ing, Decorating and Drywall Finishing Contractors of Washington, D C and Vicimty (Association), a multiem- ployer bargaining association, covering employees em- ployed by the signatory employers in connection with commercial painting and drywall fimshmg contracts in 3 By a ruling and order dated 26 August 1986, I directed that the sten- ographic transcript of proceedings be corrected in certain respects the Washington, D C area 4 In Apex Decorating Co, 275 NLRB 1459 (1985), General Counsel asserted and the Board found that "all journeymen and apprentices, in- cluding temporary employees employed by the employer members of the Association in connection with commercial painting and drywall fimshing contracts in the Washington, D C metropolitan area as defined in the contract, excluding all other employees, professional em- ployees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act, that at all times material the Union has been and is the exclusive collective-bargaining representative of the employees in such unit, and that the employees were covered by the 1981-84 contract "5 The most recent collective-bargaining contract be- tween the Union and the Association, prior to the present case, was negotiated in early 1981 and was effec- tive by its terms through 15 May 1984 The contract lists 25 painting and decorating contractors and 13 drywall finishing contractors as "affiliated with" the Union The named drywall fimshmg contractors included John H Hampshire, Inc and Maryland Drywall Co, Inc (Hampshire, Inc and Maryland Drywall), two former charging parties in this case, but did not include Mangan- aro Maryland and A C & S, the present Charging Par- ties Manganaro Maryland, which commenced operations in the Washington, D C area in 1981, was signatory to a collective-bargaining contract with Painters District Council No 35 of Boston, Massachusetts When Man- ganaro Maryland commenced its first job in the Wash- ington, D C area, it contacted the Union, and on 3 May 1981 executed a "Memorandum of Understanding" with the Union By that memorandum, Manganaro Maryland acknowledged that it was signatory to a contract with District Council No 35 which required Manganaro Maryland when working outside the jurisdiction of Dis- trict Council No 35, to abide by the Painters' contract in effect in the other jurisdiction Manganaro Maryland agreed in sum that when working within the jurisdiction of the Union it would be bound by the 1981-1984 con- tract, mcluding participation in the fringe benefit funds established by that contract A C & S was signatory to a collective-bargaining contract with Painters Local Union No 1 of Baltimore, Maryland Also on 3 May 1981, A C & S executed a memorandum of understand- ing with the Umon which was substantially identical with that signed by Manganaro Maryland Russell Sei- fert, who participated in the 1984 contract negotiations on behalf of A C & S, stated in his investigatory affida- vit (dated 4 June 1984), that "A C & S has been signs- 4 General Counsel witness Richard Jackson, who participated in the 1984 contract negotiations on behalf of Manganaro Maryland, testified that this was the practice for some 20 years (1959 to 1979) when he was president of John H Hampshire, Inc The Union has historically negoti- ated a separate master contract on behalf of the glaziers' local, and indi- vidual maintenance contracts on behalf of the utility local The present case Involves only the negotiations on behalf of the nuxed construction locals 5 In the present case General Counsel asserts that its position in Apex reflected the situation as it existed prior to the 1984 negotiations The Apex case did not involve those negotiations PAINTERS DISTRICT COUNCIL 51 (MANGANARO CORP ) 623 tory to collective-bargaining agreements or to memoran- dums of understandings with Painters District Council No 51 for at least the last seven years" Union Secre- tary-Treasurer Daniel Ager, who was presented by Gen- eral Counsel as an adverse witness, testified in sum that the Union will execute a memorandum of understanding with an employer who is signatory to a painters' contract in another jurisdiction, covering work performed in the Union's jurisdiction However, the memorandum of un- derstanding procedure is not available to other employ- ers Maganaro Maryland and A C & S did not partici- pate in the 1981 negotiations for a master contract Mi- chael E Monroe, who has been an official of the Inter- national Brotherhood of Painters and Allied Trades in various capacities since about 1975, and who was pre- sented as a union witness, testified that in his experience there was never an occasion when all signatory contrac- tors participated in the negotiations for a master con- tract Rather, after the contract was negotiated and rati- fied by the Union's membership the contractors would come to the Union's office and sign the master contract In 1983 the Union, with the assistance and direction of then International District Director Monroe, prepared for the forthcoming negotiations for a 1984 contract The Union among other things took a survey of wage rates in the Washington, D C metropolitan area, broken down by geographic areas In April 1983, Monroe's father, then International Vice President Michael Monroe, Sr ' (Monroe, Sr) received a letter from Hudson-Shatz Mid- Atlantic Painting Co, Inc (Hudson-Shatz), a signatory employer, which enclosed three identical letters from general contractors The enclosed letters expressed con- cern over the need "to reduce the competitive gap be- tween Union/nonunion painters," and that in view of the anticipated expansion of that gap, including an anticipat- ed Painters' pay raise "The result is easily foreseen, the work would be assigned to nonunion contractors" Hudson-Shatz requested that Monroe become personally involved in the matter "immediately before the situation worsens" Thereafter, in discussions within the Joint Trade Board (the joint employer union committee, estab- lished under the master contract, which meets regularly among other things, to discuss industry problems), the employers and the Union agreed to commence early con- tract negotiations, and specifically to discuss a "market recovery" plan 6 In 1983, construction industry unions and signatory employer associa- tions in the Washington area negotiated and executed the "National Cap- ital Area Construction Market Recovery Program" The thrust of this program was to effectuate a 20-percent reduction in labor Costs, for the stated purpose, in sum, of making the union contractors more competi- tive, and thereby "to win back our rightful share of the construction market" The Union declined to participate in the program, in part be- cause the program did not contain a prohibition against so-called double breasting It is evident from the letters submitted by Hudson-Shatz, that the general contractors were senously concerned about the Union's refus- al to participate in this program, i e, the Union's "refusal to consider steps to reduce the competitive gap between union/nonunion painters" Richard Jackson admitted in his testimony that union general contractors told employers negotiating with the Union that if the Union did not sign the Market Recovery Program, drywall finishing would be let for bid on a nonunion basis On 8 November 1983 the Union and some signatory employers met in what Monroe described as a "round table type discussion" Both Monroes were present The participants discussed how to maintain their position in the construction market and become competitive The employers wanted to participate in the market recovery program The Union said that it wanted to come up with a program which would make them competitive No proposals were exchanged at that time They agreed upon the need to be competitive against nonunion firms, noting that the "Union market has shrunken" The next meeting was scheduled for 30 November 1983 Monroe testified that the employers agreed to submit a proposal at that time Representatives of 11 signatory contractors, including Manganaro Maryland were present at the 30 November meeting The employers presented a written "contractors proposal," listing 11 specific proposals Richard Jackson testified that the employers formulated the document, by "consensus," at a meeting prior to 30 November The overall thrust of these proposals, which in sum involved wage reductions in some respects, relax- ation of work rules and greater employer flexibility in operations, was cost reduction The Union rejected the "contractors proposal" Richard Jackson testified that at the 30 November meeting, he said that Manganaro Maryland was there as an "independent drywall contrac- tor," and was "not a member of the painting-decorating contractors group" Michael Monroe testified that at the first meeting none of the contractors said they were ap- pearing independently According to Jackson, both Mon- roes were present at the 30 November meeting In fact Michael Monroe was present only at the first November meeting, and did not attend another session until 22 Feb- ruary 1984 Jackson testified that he did not consider the November meetings to be negotiating sessions, and that he did not regard the "contractors proposal" as a con- tract proposal, but simply a "viewpoint" of what it would "take to get something to make everyone com- petitive" However in a memorandum dated 27 February 1984, Jackson, whose title was then vice president for sales of Manganaro Maryland, informed John D Hamp- shire Jr, who was then president of Manganaro Mary- land, that at the 8 November meeting "the Union and management" agreed that "we should pursue negotia- tions," that at the 30 November meeting the Union pro- posed a 2-year contract with no wage increase except for cost-of-living index, increases in benefit funds and elimi- nation of tool restrictions, that "management would not accept" the proposal, and that the Union "rejected our proposal and requested a meetmg to be held on January 4, 1984" The contractors or someone on their behalf prepared minutes of the 30 November meeting, referred to as "contract negotiations," which descnbed the em- ployer and union proposals Copies of the minutes were distributed to signatory employers, including those like Hampshire, Inc , who were not present at the meeting I have no comparable problems with Monroe's testimony concerning the meetings I find that the contract negotia- tions began on 30 November 1983, and that the employ- ers did not at either November meeting say they were there independently 624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD By letter dated 23 December 1983, Secretary-Treasur- er Ager notified all signatory contractors of the next meeting, which was scheduled for 4 January 1984' No signatory employer requested separate negotiations or separate meetings until (as will be discussed) the meeting of 22 February Representatives of 8 contractors, includ- ing Manganaro Maryland, were present Jim Ballard of Ballard & Associates, Inc acted as their spokesman It is undisputed that in response to the Union's request for a letter of authorization, indicating "who will be represent- ed as [Association] members and who are Independent contractors," Ballard answered that "all contractors are sitting as independent contractors" The Union submitted a contract proposal which included some expansion of prior concessions The employers, after a caucus, an- nounced through Ballard that they rejected the proposal, in sum because they regarded the proposal as inflation- ary Later in the evening the employers submitted a counterproposal, which the Union took under advise- ment The Union and the employers met again on 15 February The Union submitted a contract proposal, in- cluding cost-of-living and fringe benefits Increases, and the employers rejected the proposals The employers continued to follow the same method of bargaining which they had used from the beginning of negotiations They collectively formulated proposals and responses to the Union's proposals, and announced their position through their spokesman In sum, the employers spoke with one voice At no time during the course of negotia- tions did any individual employer submit a proposal or otherwise take a position which differed from that of the other employers with whom it was negotiating In the meantime, Richard Jackson telephoned Michael Monroe, complained that the Union was asking for in- creases, and asked what happened to market recovery It is evident not only from this conversation, but from the entire course of discussions and negotiations that the em- ployers were awaiting a union proposal which was com- parable to the Market Recovery Program agreed to by other unions However Monroe had encountered consid- erable difficulty in persuading the Union's membership to accept such concessions Monroe said that he would come to the next negotiating session, scheduled for 22 February, and discuss the employers' needs At the 22 February session, employer spokesman Bal- lard again stated, in response to the Union's inquiry, that each contractor was representing himself Michael Monroe was the Union's chief spokesman Monroe out- lined in detail the Union's proposed market recovery program, which included among other provisions a three-zone wage structure Monroe explained that the Union developed this proposal as a result of the Union's area wage survey Monroe also explained a proposed "work preservation" clause, which would in essence pro- hibit "double breasting" by signatory employers The Union did not, at this session present a wnteup of such clause However Monroe asserted that the clause would have to be written m the strongest possible language Monroe made clear that he was presenting the market recovery plan and the anticlouble-breasting clause as a 7 All dates herein are for 1984 unless otherwise indicated package proposal, and that the employers could not have the former without the latter The employers expressed pleasure that the Union was now presenting a market re- covery program which promised substantial reductions in labor costs, but they, and particularly the drywall con- tractors, were hostile to the double-breasting clause Monroe argued that the clause was needed to protect the union employees, and not have their work "siphoned off into other fields" The drywall contractors argued that the clause was illegal and that they could not survive with it Monroe, Ager, and Jackson testified in sum that alternatively, Monroe proposed a 1-year extension of the present contract with a 3-percent wage reduction, 4-year apprentice program and deletion of double-time pay, and that the employers rejected this proposal I credit their testimony 8 Louis Rayman testified that at this meeting, Monroe stated that he was going to "Stop this double breasted bullshit once and for all" and would "eliminate the nonunion opposition" Rayman initially testified that Monroe did not mention names, but he subsequently tes- tified that Monroe singled out by name those employers present who allegedly had double-breasted operations Richard Jackson gave a more restrained version of Mon- roe's remarks Jackson testified thast at one of the negoti- ating sessions, Monroe stated that the work-preservation clause was for those firms in the room that had double- breasted operations At this point he walked around the table and put his hands on the shoulders of himself, Dur- wood Boeglen of Maryland Drywall, and Arthur Meu- shaw of Standard Acoustics, Inc (all of whom were present at the 22 February session) Jackson obviously was referring to the 22 February session As between Jackson and Raman, I credit Jackson It is undisputed that at no time during the negotiations was Sweeney mentioned, and that the Union never asked Manganaro Maryland or any parent firm of Manganaro Maryland to take any action with respect to Sweeney After Monroe presented the Union's package proposal, Richard Jackson, on behalf of the drywall contractors, requested that the Union meet separately with them Jackson explained that he was not asking for a separate contract, but wanted to address the drywall contractors' needs, and saw no point in their sitting through discus- sions of matters which were not of interest to them, such as removal of restrictions on the use of certain painting 8 General Counsel witness, Louis Rayman, who was vice president and Washington area branch manager for Hampshire, Inc until October 1985, and was present for Hampshire, Inc at the 22 February session, testified that nothing was said about a 1-year contract At the tune of his testimo- ny, Hampshire, Inc was still a charging party in this proceeding Rayman tended to be an evasive witness, and Ins testimony in some re- spects was incredible Rayman testified that he did not even know who was responsible for negotiations on Hampslure, Inc 's behalf, and that he did not recall receiving the minutes of the 30 November meeting, al- though a copy was in Hampshire, Inc 's files In light of the testimony of Richard Jackson, I credit Monroe and Ager I find without ment Gener- al Counsel's suggestions (Br fn 6) that the Union proposed a 1-year ex- tension only to the painting contractors, as the drywall contractors were leaving the meeting, and that the proposal was not senous because it was never reduced to writing The drywall contractors left together (as Jack- son reported to John Hampshire) Therefore it is evident that if Jackson heard the proposal in all its details (as he testified he did) that Rayman also heard the proposal As the employers rejected the proposal, there would have been no purpose in reducing It to wntmg PAINTERS DISTRICT COUNCIL 51 (MANGANARO CORP ) 625 equipment Monroe agreed to the request From this point on Jackson acted as spokesman for the drywall contractors Jackson testified that he was "authorized only to be the spokesperson at the various meetings," and "to try to keep everybody in order on our side" At the next negotiating session, on 14 March, the Union presented its package proposal in writing The proposal included among other provisions a three-zone wage structure, with the highest wage rates in zone I (Washington, D C), lower rates in zone II (counties and cities adjacent to Washington, D C) and the lowest rates in zone III (outlying areas) The proposal also included a "work preservation clause which guarantees that the contractors will not operate in a double-breasted fash- ion" The clause consisted of the following language Section 1 To protect and preserve, for the em- ployees covered by this Agreement, all work they have performed and all work covered by this Agreement, and to prevent any device or subter- fuge to avoid the protection and preservation of such work, it is agreed as follows If the Contractor performs on-site construction work of the type cov- ered by this Agreement, under its own name or the name of another, as a corporation, company, part- nership, or other business entity, including a joint venture, wherein the Contractor, through its offi- cers, directors, partners, owners or stockholders ex- ercises directly or indirectly (including but not lim- ited to management, control, or majority ownership through family members), management, control, or majority ownership, the terms and conditions of this Agreement shall be applicable to all such work Section 2 All charges of violations of Section 1 of this Article shall be considered as a dispute and shall be processed in accordance with the provi- sions of this Agreement on the handling of griev- ances and the final and binding resolution of dis- putes As a remedy for violations of this Article, the Joint Trade Board or Arbitrator shall be able, at the request of the Union, to require a contractor to pay (1) to affected employees covered by this Agree- ment, mcludmg registered applicants for employ- ment, the equivalent of wages those employees have lost because of the violations, and (2) into the af- fected Joint Trust Funds to which this Agreement requires contributions any delinquent contnbutions that resulted from the violations This Section does not make this remedy the exclusive remedy avail- able to the Union for violation of this Article, nor does it make the same or other remedies unavailable to the Union for other violations of this Agreement Section 3 If, after a contractor has violated this Article, the Union and/or Trustees of one or more Joint Trust Funds to which this Agreement requires contributions institute legal action to enforce an award by an arbitrator or the Joint Trade Board remedying such violations, or defend an action that seeks to vacate such award, the Contractors shall pay any accountant's and/or attorney's fees in- curred by the Union and/or Joint Trust Funds, plus costs of the litigation, that have resulted from such legal action Tlus Section does not affect other rem- edies, whether provided by law or this Agreement, that may be available to the Union and/or the Joint Trust Funds On 26 April the drywall contractors met separately with the Union Prior to the meeting and throughout the continuing negotiations the contractors met and worked closely together in formulating their position They gave serious consideration to forming a formal bargaining as- sociation of drywall contractors At the 26 April session A C & S appeared for the first time in the negotiations, in the person of Russell Seifert, then branch manager for A C & S and since April 1985, operations manager for CIB Seifert testified that Richard Jackson had kept him informed of the progress of negotiations, and that he "picked up along the negotiations where the negotiations were" Six drywall contractors were present The parties made progress on the concessions aspects of the Union's proposal, but despite extended discussion of the work preservation clause, they did not make any movement toward agreement By 15 May, the terminal date of the 1981-1984 contract, the painting contractors had agreed to accept the work preservation clause, and as a result the Union and the painting contractors reached agree- ment on the terms of a contract, which agreement was ratified by the Union's membership The Union and the drywall contractors met again on 15 May The contrac- tors were willing to accept the market recovery proposal without the work-preservation clause 9 They made a proposal to that effect, which proposal was rejected by the Union At this point Richard Jackson and Michael Monroe agreed that the parties were at impasse Monroe took the position that by reason of Manganaro Mary- land's contract in Boston and those of A C & S and Hampshire, Inc in Baltimore, they were obligated to abide by whatever contract was ratified by the Union's membership The contractors disagreed l° Commencing 16 May 1984 and contmumg until enjoined in November 1985 in the Section 10(1) proceeding ancillary to the present case, the Union refused to refer employees to the jobsites of Manganaro Maryland, A C & S and its suc- cessor CIB, and other employees who refused to sign the ratified contract (The Union contract provides that the Union "shall be the sole and exclusive source of referral of applicants for employment ") The Union did not take any other strike action The Union and the drywall con- tractors met again on 30 May 1986 At that time the em- ployers presented a prepared statement to the Union which began with the question "Are you bargaining indi- vidually or with the association?" Monroe answered that the Union was bargaining with them as individuals The 9 In the words of Seifert's immediate superior, Vice President and Dis- tribution Manager Alan "Red" Stokely to A C & S Vice President George Fuller, in a memorandum dated April 5, 1984, "All union com- petitors have nonunion outlet so they won't sign" "Don't know what the Painter Employer Assoc will do If pushed we can go to Plasterers for spacklers One competitor does use plasterers" '° General Counsel did not, at the hearing, take any position as to the legality or propriety of the Union's position in this regard, except insofar as General Counsel contended that the Union unlawfully demanded the work-preservation clause 626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Union proposed acceptance of the ratified contract, cou- pled with proposals for strike compensation pay The employers rejected the proposals This was the last time that the employers met collectively to negotiate with the Union The Union subsequently met mdividually with contractors, some of whom signed the ratified contract 13 Concluding Findings with respect to the Bargaining Unit Involved In its brief (p 42) Manganaro Maryland questions why bargaining unit is an issue in this case The answer is threefold First, the complaint alleges and the answer denies that the employees of Manganaro Maryland and A C & S-C IB each constitute separate and appropriate bargaining units, and that the Union has been at all times material the recognized bargaining representative of such employees in such separate units Therefore General Counsel placed the unit question in litigation Second, General Counsel contends that the Union violated Sec- tion 8(b)(3) because the work-preservation clause does not pertain to the terms and conditions of employment of the unit employees In order to deal with this allegation, it is preliminarily necessary to define the unit or units in- volved Third, the Union contends that the clause is a lawful work-preservation clause This contention would require consideration of "whether, under all the sur- rounding circumstances, the Union's objective was pres- ervation of work for [the employees of the struck em- ployer or employers], or whether the [clause was] tacti- cally calculated to satisfy union objectives elsewhere" National Woodwork Mfrs Assn v NLRB, 386 U S 612, 644-645 (1967) Again, in order to consider this question, it would be preliminarily necessary to define the primary unit, i e, the employees whose work the Union may law- fully seek to preserve I find that Manganaro Maryland and A C & S -CIB are part of a multiemployer bargaining unit, and specifi- cally, that all journeymen and apprentices, including temporary employees employed by employers signatory to or bound by the 1981-1984 master contract with the Union and their successors, including Manganaro Mary- land and A C & S -CIB, in connection with painting and drywall finishing contracts in the Washington, D C metropolitan area as defined in the contract, excluding all other employees, professional employees, guards and supervisors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act I further find that at all times matenal the Union has been and is the exclusive collective-bargaining representative of the em- ployees in that unit 11 As found, the Union has always negotiated a single master contract through multiemploy- er negotiations, and has never (when acting on behalf of its mixed construction locals) negotiated separate con- tracts with individual employers The Union has a prac- tice of permitting certain employers to sign memoranda of agreement whereby they agree to be bound by the ii At this point I am not addressing the question of whether the em- ployees of Sweeney are included in the unit As will be discussed, I cannot resolve that question without considenng the relationship between Manganaro Maryland and Sweeney master contract However, that practice is limited only to employers who are signatory to a Painter's union con- tract in another jurisdiction Painter's union contracts usually require (as did the 1981-1984 contract) that sig- natory employers must comply with the area Painters' contract when working in another jurisdiction General Counsel does not contend that such requirements are un- lawful As indicated, in Apex Decorating Co, General Counsel contended and the Board determined that there was a multiemployer bargaining unit The Board has es- tablished rules governing withdrawal of an employer or a union from multiemployer bargaining Pnor to the be- ginning of negotiations, withdrawal can "only be effect- ed by an unequivocal written notice expressing a sincere intent to abandon, with relative permanency, the multi- employer unit, and to pursue negotiations on an individ- ual employer basis" Once negotiations have begun, with- drawal can only be effected on the basis of "mutual con- sent" or when "unusual circumstances," specifically "dire economic circumstances" are present An impasse in bar- gaining does not justify an employer's withdrawal from multiemployer bargaining Hi-Way Billboards, 206 NLRB 22 (1973), enf denied 500 F 2d 181 (5th Cir 1974), cited with approval in Bonanno Linen Service v NLRB, 454 US 404,411-412(1982) In the present case the signatory employers did not either prior to or at the commencement of negotiations, give oral or wntten notice of intent to withdraw from multiemployer bargaining In Apex Decorating Co, the Board did not address the question of whether employers who sign memoranda of understanding are part of the multiemployer unit General Counsel contends in sum that Manganaro Maryland and A C & S -CIB were never part of the multiemployer unit, and that in any event, the Union and the employer agreed during the course of the negotiations, to dismantle a multiemployer unit which had existed for some 30 years, and to bargain on an individual basis With respect to the second argu- ment, General Counsel relies principally on the employ- ers' statements (made through their spokesman), that the employers were present as independent contractors, and the Union's failure to reject those statements General Counsel's argument has several flaws First, the employ- ers cryptic statements fell considerally short of a clear and unequivocal request either to dismantle the multiem- ployer unit or to bargain on an individual employer basis, particularly in light of the long and continuous his- tory of multiemployer bargaining Second, assuming ar- guendo that the employers' statements constituted a re- pudiation of multiemployer bargaining, the employer's concurrent and subsequent words and actions contradict- ed any such intention From the beginning, the employ- ers negotiated with one voice They met together to for- mulate proposals and other positions, and presented such positions to the Union through their chosen spokesman No employer ever presented a separate proposal or took a position different from that of the other employers, until the drywall contractors requested separate meet- ings The actions of A C & S are particularly signifi- cant Russell Seifert did not enter the negotiations until 26 Apnl Nevertheless he did not ask either for separate PAINTERS DISTRICT COUNCIL 51 (MANGANARO CORP ) 627 negotiations or a recapitulation of the prior negotiations Rather, as he admitted in his testimony, Richard Jackson kept him informed of the progress of negotiations and he picked up where the negotiations stood Seifert's testimo- ny would make no sense unless he understood (and I so find) that the employers were negotiating not only on their own behalf but also on behalf of A C & S prior to his belated appearance Richard Jackson's 22 February request for separate meetings between the Union and the drywall contractors is also significant Jackson explained that the drywall contractors did not wish to sit through discussions of matters which did not affect them, and he made clear that they were not seeking to negotiate a sep- arate contract Jackson's explanations would be unneces- sary if the parties understood that there was no multem- ployer unit In that situation the drywall contractors could have met separately or mdividually with the Union without any preconditions or explanations It is also sig- nificant that as late as 30 May, long after the strike began, the drywall contractors found it necessary to ask whether the Union was bargaining "individually or with the association" The drywall contractors never told the Union that they formed a separate association So far as the Union knew, the only "association" was the Associa- tion which negotiated the 1981-1984 contract If there were no longer a bargaining association of painting and drywall contractors, the employers would have no need to ask the question The admissions of A C & S -CIB officials are also significant I have previously referred to A C & S Vice President Stokely's memorandum of 5 April, in which he acknowledged that the painting con- tractors were bargaining as an association In October 1985, after the present charges were filed, Stokely sent a memorandum to Thomas Decker in which he described "Washington Area Drywall Contractors" as "a loose As- sociation, that negotiates only, and who negotiated to- gether to impasse and strike in May 1984" Stokely con- cluded that "I agree with Russ' position that we remain in the Association as long as they are making progress" Stokely identified himself as "A L Stokely, Intercon Group" Seifert testified that he still reports to Stokely, who is now president of Intercon Group, that Irex Corporation owns both Intercon Group and A C & S, and that at least until 1985, Stokely reported to Decker, who was then president of A C & S Stokely's memoranda reflect both an acknowledgment of multiem- ployer bargaining and a calculated strategy on the part of the drywall contractors Initially the contractors pro- fessed to be present as "independent contractors," while at the same time engaging m multiemployer bargaining They hoped thereby to move in either direction, depend- ing on what appeared to be in their best interests On 22 February the drywall contractors requested separate meetings with the Union, ostensibly only as a matter of convenience However, in the course of subsequent ne- gotiations the drywall contractors proved to be more ad- amant than the painting contractors in their opposition-to the "work preservation" clause The drywall contractors, anticipating that the painting contractors might agree to the clause, kept available a third alternative, namely, that they constituted a separate bargaining association Thus, after the painting contractors did agree to the clause, the drywall contractors asked the Union whether it was bar- gaining with the "association," without defining that term 12 I further find, particularly in light of the employers' own course of action, that the statements and actions of the Union during and since the 1984 negotiations were not inconsistent with multiemployer bargaining Secre- tary-Treasurer Ager stated in a report to the Union on 19 April that "The contractors did not come to the bar- gaining table as an association so we may have to take them on one by one" Ager's report reflected what the employers initially said, but not what they did As mat- ters turned out, Ager's prediction was correct with re- spect to the drywall contractors As indicated, on 30 May the Union stated that it was bargaining with the drywall contractors as individuals By this time the Union had negotiated a new master contract, the paint- ing contractors (who comprised a majority of signatory firms, both as to number of employers and number of employees) had agreed to that contract, and the Union's membership had ratified the contract Therefore the Union could arguably contend that the ratified contract was the result of multiemployer bargaining, and could demand, consistent with multiemployer bargaining, that the remaining employers sign that contract 13 The Union could also arguably contend that the ratified contract now constituted the area master agreement, and that by reason of their contracts with Painters' unions in Balti- more or Boston, Manganaro Maryland, A C & S and Hampshire, Inc were obligated to abide by the terms of that contract Therefore also the Union did not act in a manner inconsistent with multiemployer bargtunmg either by demanding that the drywall contractors sign the ratified contract, or by filing refusal to bargain charges against employers who did not sign the contract and who allegedly failed or refused to meet further with the Union At the present hearing, General Counsel indi- cated that it took no position as to whether, absent the alleged unlawful work-preservation clause, the Union could lawfully assert that Manganaro Maryland and A C & S were obligated to sign the ratified contract That question was not litigated in this proceeding, and it would be improper for me to make any findings or con- clusions in the matter Suffice to say that the Union's po- 12 I find without merit, General Counsel's various arguments (Br fn 10) that Seifert's superiors were uninformed concerning the negotiations, and that Stokely was only refemng to an association for the purpose of processing unfair labor practice charges The quoted memorandum and other memoranda introduced in evidence by the Union clearly demon- strate that Seifert kept his superiors Informed concerning the negotia- tions, and acted in accordance with their Instructions Both the April 1984 and October 1985 memoranda specifically referred to association bargaining General Counsel's arguments smack of hitting a person who has one hand tied behind his back In part as a result of General Coun- sel's efforts, the Board issued orders which precluded the Union from ad- ducing documents or testimony of communications among A C & S. CIB, and related corporate entitles concerning the negotiations There- fore the Union was limited in presenting evidence on the unit question ii The record evidence falls to indicate that the Union ever negotiated separate long-term agreements with employers who failed or refused to sign to ratified contract Rather the Umon demanded that they sign the ratified contract, and some did so Therefore General Counsel's reliance on Bonnano Linen Service, supra, 454 U S at 414-415 (Br fn 17) is mis- placed See / C Refrigeration Service, 200 NLRB 687, 689-690 (1972) 628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sition is arguably tenable, and that it cannot be rejected simply on the basis of General Counsel's passing remark, unaccompanied by citation of authority, that "this rather peculiar notion is unrecognized in federal labor law" (Br fn 15) General Counsel, Manganaro Maryland, and the Union have cited various Board and court decisions in support of their respective positions I find Belknap Glass Go, 240 NLRB 1315 (1979), enfd sub nom H & D, Inc v NLRB, 670 F 2d 120 (9th Cir 1982), to be most nearly in point In that case the Board held as follows we find that the evidence establishes the exist- ence of a multiemployer bargaining unit During the past 10 years Bel-Wmdow, H & D, and various other employers jointly negotiated several collec- tive-bargaining agreements with the Union In prac- tice, the Union--Local 506--nunated negotiations by sending a standard reopening letter to each of the employers The employers also received identi- cal contract proposals from the Union Each em- ployer m the group was individually represented at the bargaining sessions, but upon receiving a pro- posal from the Union, the employers' representa- tives caucused and jointly formulated one counter- proposal When contract proposals were submitted to the employees for ratification one vote was con- ducted, with employees of all employers in the group votmg as a unit After ratification the em- ployers signed separate contracts that were identical except for the employar's name Consequently, we agree with the General Counsel's contention that Respondents' past bargaining practice indicated that each employer intended to be bound by the results of group negotiation rather than by individual bar- gaining, and thus that the mulnemployer bargaining unit existed at times relevant The above quotation substantially describes the pattern of bargaining in the present case General Counsel cor- rectly points out (Br 28) that in the present case, unlike Bel-Window, the employers professed that they were present as independent contractors However as found, their statements were inconsistent with their actions and demonstrated an intent "to secure the best of two worlds," by attempting to reserve an option to move in the direction of individual bargaining or some lesser form of multiemployer bargammg, like the "now you see it-now you don't" association of drywall contractors In these circumstances, the employer's actions rather than their words are determinative of the bargaining unit issue Dependable Tile Go, 268 NLRB 1147 (1984), enfd 774 F 2d 1376 (9th Cif 1985), Associated Shower Door Go, 205 NLRB 677, 682 (1973), enfd 512 F 2d 230 (9th Cir 1975), cert denied 423 U S 893 (1975) In light of the employers' course of conduct, it is immaterial that the Union failed to protest when the employers an- nounced that they were present as independent contrac- tors "A Union is under no duty to protest in any formal manner an employer's attempted withdrawal" from mul- nemployer bargaining NLRB v Dependable Tile Go, 774 F 2d 1376, 1385 (9th Cir 1985), Reliable Roofing Go, 246 NLRB 716 (1979) It is also immaterial whether the em- ployers continued to negotiate under the formal name and structure of the Association, i e, Painting, Decorat- mg and Drywall Finishing Contractors of Washington, D C and Vicinity What is significant is that the sub- stance of the Association remained intact, in that signato- ry employers continued to engage in mulnemployer bar- gaining for a single master contract "It is well estab- lished that the requisite intent may be inferred from a prior history of multiemployer bargaining and the adop- tion of uniform contracts" McAx Sign Go, 576 F 2d 62, 66 (5th Cir 1978), cert denied 439 U S 1116 (1979) "No formal organizational structure is required" H & D, Inc v NLRB, supra, 670 F 2d at 122 I do not agree with General Counsel's argument (Br 22) that the em- ployers simply "bargained together for convenience," and that therefore they did not comprise a mulnemploy- er bargaining unit As discussed, the evidence indicates otherwise General Counsel's descnption might be appli- cable to the separate meetings between the Union and the drywall contractors Indeed convenience was essen- tially the reason which the contractors gave for request- ing those meetings However, the employers did not thereby either break up the existing multiemployer unit or form a new unit With respect to those employers, in- cluding Manganaro Maryland and A C & 5, who signed memoranda of understanding, I find that General Counsel's reliance on Movable Partitions, 175 NLRB 915 (1969), is misplaced That case and its progeny simply stand for the proposition that execution of such memo- randa, standing alone, does not constitute a sufficient basis for including the signatory employer in a multiem- ployer unit Indeed the Board emphasized that the em- ployer never participated in the contract negotiations In the present case, both Manganaro Maryland and A C & S were heavily involved in the 1984 negotiations Rich- ard Jackson acted as spokesman for the contractors, and as discussed, the testimony of Russell Seifert warrants an inference that A C & S authorized Jackson to negoti- ate on its behalf C The 8(b)(4)(1) and (u)(A) Violation Whether General Counsel has Established a Prima Facie Case Section 8(b)(4)(A) of the Act, in pertinent part, prohib- its a labor organization from (i) engaging in, or inducing or encouraging employed individuals to engage in strikes or refusals to perform services, or (n) threatening, coerc- ing, or restraining persons engaged in commerce, where m either case an object of such conduct is to force or require any employer or self-employed person "to enter into any agreement which is prohibited by Section 8(e)" of the Act The complaint alleges that the Union violat- ed Section 8(b)(4) by bargaining to impasse, and by re- fusing to refer employee members to the jobsites of Man- ganaro Maryland and A C & S -CIB, for the purpose of compelling them to enter into a contract containing the "work preservation" clause The complaint alleges that the clause is prohibited by Section 8(e) in that it would require Manganaro Maryland and A C & S -CIB "to refuse to engage in business with any separate person unless the agreement is applied to that person" The PAINTERS DISTRICT COUNCIL 51 (MANGANARO CORP ) 629 complaint also contains a separate count, alleging that the clause was also unlawful in that it would require Manganaro Maryland to cease doing business with cer- tam named firms "unless the agreement sought by Re- spondent is applied to Sweeney" This count will be dis- cussed further in connection with the 8(b)(4)(B) allega- tions of the complaint With respect to the alleged bargaining to impasse, General Counsel has not made out a prima facie case, be- cause Section 8(b)(4)(A) does not proscribe such con- duct Section 8(e) prohibits employers and unions from entering into so-called hot cargo agreements, and Section 8(b)(4)(A) prohibits coercive "self-help" action by a union to obtain such an agreement However, nothing in either Section 8(b)(4) or Section 8(e) prohibits a union from proposing a hot cargo clause, bargaining about or even bargaining to impasse over its proposal or demand for a contract continuing such a clause However, the Union's refusal to refer employees to Manganaro Mary- land and A C & S -CIB does constitute the kind of co- ercive conduct which is proscribed by Section 8(b)(4) and its subsections NLRB v Operating Engineers Local 825 (R G Maupai), 315 F 2d 695, 697-698 (3d Cir 1963) The next question presented is whether the Union refused to refer employees for an object of compelling the employers to enter into an agreement containing the alleged unlawful clause I find that it did, and for the purpose of deciding this matter, it is not necessary to de- termine whether the standoff between the parties should be characterized as an "impasse" As discussed, the Umon has taken the position that it negotiated a new master contract containing the clause at issue, and that Manganaro Maryland and A C & S -CIB are obligated to accept that contract The Umon will not refer em- ployees to employers who are not signatory to its con- tract Therefore it is evident that an object of the Union's conduct is to compel the employers to enter into a contract containing the disputed clause This brings me to the language of Section 8(e) itself Section 8(e) provides in pertinent part that It shall be an unfair labor practice for any labor or- ganization and any employer to enter into any con- tract 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 as 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 Provided, That nothing in this subsection (e) shall apply to an agreement between a labor or- ganization and an employer in the construction m- dustry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, struc- ture, or other work The language of Section 1, i e, the substantive portion of the work-preservation clause, when matched up against the language of Section 8(e), presents two threshold questions 14 First, does the clause purport to deal with the relationship between the signatory employer and any other "employer" or "person" within the meaning of the Act9 Second, does the clause constitute an agreement to "cease doing business" with other persons or employers within the meaning of Section 8(e)" I find that the answer to both questions is "yes" Under the Act, nomi- nally separate business entitles may be regarded as a single employer "where they comprise an integrated en- terprise The controlling criteria, set out and elabo- rated in Board decisions, are interrelation of operations, common management, centralized control of labor rela- tions and common ownership" or financial control Radio Union Local 1264 v Broadcast Service, 380 U S 255, 256 (1965), see also Operating Engineers Local 627 v NLRB (South Prairie Construction), 518 F 2d 1040, 1045 (D C Cir 1975), affd in pertinent part sub nom South Prairie Construction Co v Operating Engineers Local 627, 425 US 800, 803-804 (1976) 14 No one factor is control- ling, and not all need be present Kiewit, supra, 518 F 2d at 1045 The Board has held that separate corporate sub- sidiaries and even unincorporated divisions of a corpora- tion may be regarded as separate persons under the Act, if neither the parent nor the subsidiaries (or the division and the corporation) "exercises actual or active, as op- posed to merely potential, control over the day-to-day operations or labor relations of the other" Los Angeles Newspaper Guild (Los Angeles Herald-Examiner), 185 NLRB 303, 304 (1970), enfd , 443 F 2d 1173 (9th Cu 1971) As illustrated by Los Angeles Herald-Examiner, the Board has found separate employer status where common ownership, but not the other critical factors, are present Therefore theoretically at least, the clause at issue could govern the relationships among entities which are separate employers or persons under the Act The clause begins by refernng to work performed by the "contractor," thereby suggesting that the clause applies to situations where the signatory and the entity perform- ing the work constitute one employer However, the clause then goes on to define the relationship as one in which the signatory contractor exercises directly or indi- rectly "management, control or majority ownership" (emphasis added) including but not limited to manage- ment, ownership or majority ownership through family members As the clause is worded in the disjunctive, it is evident that the clause, on its face, would for example apply if 51 percent of the stock of the signatory and the entity performing the work were owned by a third firm, even if there was no interrelation of operations, common management, or centralized control of labor relations AFL-CIO Building & Construction Trades Department general counsel Laurence Cohen, the principal author of the clause, who was presented as a union witness, testi- 14 General Counsel does not contend that the clause contains unlawful "self-help" provisions Rather, General Counsel's position is based solely on its contention that the substantive provision, I e Sec 1, violates Sec 8(e), and therefore that the entire clause is unlawful 14 There are five reported decisions in the last named case two by the Board (206 NLRB 562 and 231 NLRB 76), two by the court of appeals (518 F 2d 1040 and 595 F 2d 844), and one by the Supreme Court (425 U S 800) For ease in reference, they will be referred to both collectively and individually as the Kiewit case 630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fled that it was intended that the clause should apply only when the entities involved met the Kiewit test for a single employer However, Cohen admitted that the lan- guage of the clause was not so limited As for the second question, the clause does not speak in terms of a cessa- tion or limitation of business activity Rather, the clause states that if the requisite conditions are present, "The terms and conditions of this Agreement shall be applica- ble to" the work performed by the nonsignatory entity However, the Board has held that such "application of the contract" clauses, on their face, fall within the pro- scnption of Section 8(e) 111 that they have an ostensible effect of "influencing the employment practices of others besides the primary employer and his employees" Oper- ating Engineers Local 701 (Lease Co), 276 NLRB 597 (1985) Having ascertained that the elements of a prima facie case are present, the next logical question presented is whether the clause at issue does in fact fall within the general proscription of Section 8(e) That would mclude consideration of the Union's work preservation defense Lease Construction Co, supra However, I shall not pro- ceed in this manner Instead, for reasons which will be discussed, I shall first address the applicability of the construction mdustry proviso of Section 8(e), then con- sider the 8(b)(4)(B) and 8(b)(3) allegations of the com- plaint, and then return to the question of whether the clause falls withm the general proscription of Section 8(c) D The Construction Industry Proviso of Section 8(e) and its Applicability to the Present Case This case squarely presents the question of whether an antidouble-breasting clause is protected under the con- struction industry proviso to Section 8(e) of the Act As will be discussed, I am not persuaded that any reported Board or Supreme Court decision is dispositive of this issue However, the case law thus far has developed cer- tain principles which provide a framework within which the question may be resolved In order to analyze this framework, it is necessary to consider m some detail four cases which the parties have cited Two of these cases reached the Court of Appeals level, and two were ulti- mately resolved by the Supreme Court I shall deal with these cases in chronological order The first case is Plumbers Local 217 (Carrel Co), 152 NLRB 1672 (1965), enfd m part and rev in part 361 F 2d 160 (1st Or 1966) In Carrel, the Board was pre- sented with the question of whether the respondent union violated Section 8(e) by entering into a collective- bargaining contract containing the following clause The Employer agrees that no journeyman or ap- prentice who is a member of Local 217 will be assigned to work or expected to work or required to work, on any job or project on which a worker or person, is performing any work within the juris- diction of Local No 217, if said worker or person is performing such work for wages, or hours or under any conditions of employment, which are different from those established by this Agreement The Board held in sum that the clause was a secondary provision and therefore within the general prohibition of Section 8(e), but that it also fell within the protection of the construction industry proviso The Board rejected General Counsel's argument that the proviso was not ap- plicable because the clause was "not restricted to the subcontracting or contracting out of work to be per- formed at the construction site" Specifically, the Board held as follows As the disputed provision is limited to work on a construction industry jobsite, we cannot agree with General Counsel that the proviso is inapplicable solely because the contract provision does not spe- cifically refer to the "contracting out" or "subcon- tracting" of unit work To hold the proviso applica- ble only where a contract provision copies the stat- utory language, even though the situation falls squarely within the one contemplated by such lan- guage, would in our opinion, sacrifice substance to form Additionally, the application of the proviso does not, in our view, depend on the precise rela- tionship between Carvel with whom the Union has a contract and other employers and persons on the job, in this mstance the general contractor and [non- union subcontractor], who may be affected by the enforcement of the contractual proviso The lan- guage of the proviso itself does not limit its applica- bility to the "contracting out" or "subcontractmg" of work by the employer with whom a union has an agreement within the scope of Section 8(e) Indeed, were the proviso given such a limited applicability, it would be of little effect, for aside from the gener- al contractor on a job, the various firms involved normally have control only of "unit" work—that is, the particular work for which they hold a subcon- tract Restrictions on the nght to subcontract such work could well be primary, and thus lawful with- out reference to the construction industry proviso, because they are wholly outside the scope of Sec- tion 8(e) Significant on the scope of this proviso is the statement of Senator Kennedy, in his report for the Senate Conference on the 1959 Amendments to the Act, that The first proviso under 8(e) is intend- ed to preserve the present state of the law with respect to the validity of agreements relating to the contracting of work to be done at the site of a construction project Agreements by which a contractor prom- ises not to subcontract work on a construction site to a nonunion contractor appear to be legal today They will not be unlawful under Section 8(e) The proviso is also applicable to all other agreements involving undertakings not to do work on a construction site with other contrac- tors or subcontractors regardless of the precise re- lation between them [Emphasis by Board ] The Board concluded that "consequently the failure of [the clause] to refer specifically to 'contracting out' or 'subcontracting' and the fact that it may affect persons PAINTERS DISTRICT COUNCIL 51 (MANGANARO CORP ) 631 and employers with whom [the signatory subcontractor] has no contractual relationship does not bar application of the proviso here" The Board held that the clause was not protected by the construction industry proviso, but only because the clause incorporated into the contract self-enforcement terms which permitted employees to engage in work stoppages in reliance upon the clause The Board also found on the facts of the case that Local 217 violated Section 8(b)(4)(B) of the Act by engaging in such a work stoppage The Board based this finding in part upon its finding that the signatory employer had "no control" over the work of the other subcontractor, or over the working conditions of the other subcontrac- tor's employees, or "indeed over the subcontracting" of work by the general contractor to the other subcontrac- tor "or anyone else" On review, the court of appeals concurred with the Board's analysis of the scope of the construction industry proviso However, the Court held that the clause did not incorporate self-help provisions of the contract, and consequently rejected the Board's de- termination that Local 217 violated Section 8(e) The Court enforced the Board's order only insofar as it relat- ed to the stnke conduct proscribed by Section 8(b)(4)(B) The clause involved in Carvel is distinguishable from the present clause in only one pertinent respect Specifi- cally, the Carve! clause was limited in its applicability to jobsites where the signatory employer's employees were or might be engaged at work, whereas the present clause is not so limited I do not agree with General Counsel's argument (Br 53-56) that the present clause is distin- guishable from the clause in Carve! because the present clause does not relate to the contracting or subcontract- ing of jobsite work If so, then the clause in Carve! also did not relate to the contracting or subcontracting of jobsite work Suppose for example that the clause in Carve! referred to a job or project on which a firm affili- ated with the signatory employer by common manage- ment, control or majority ownership, was performing work within Local 217's jurisdiction Such a clause would be narrower in application that the clause actually involved in Carve!, but virtually mdistmgunhable from that in the present case, except insofar as the present clause is not limited to sites where the signatory employ- er is or may engage in work In Carvel, the Board care- fully explained that the construction industry proviso is not limited to situations involving the contracting of work to or from the signatory employer Rather, as dem- onstrated by Carve!, the protection afforded by the pro- viso extends to the contracting or subcontracting of job- site work among firms which may not even be related to the signatory employer The instant clause is directly ad- dressed to the contracting or subcontracting of jobsite work, in that it is designed to restrict "double-breasting" e, the contracting or subcontracting of "on-site con- struction work" on a nonunion basis by related firms which also contract or subcontract on a union basis If any "sophistry" is here involved, it lies in General Coun- sel's argument that the present clause does not relate to contracting or subcontracting of work As the Board stated in Carve! with respect to a similar argument in that case, the argument "sacnfice[s] substance to form "16 The second case arose some 10 years after Carve! Op- erating Engineers Local 542 (York County Bridge), 216 NLRB 408 (1975), enfd 532 F 2d 902 (3d Cir 1976), cert denied 429 U S 1072 (1977), is significant because like the present case, it involved an antidouble-breasting clause In York County Bridge, the Board found that Local 542 threatened York with a work stoppage in sup- port of its demand that York sign a mulnemployer con- tract which contained the following clauses Section 11-Non-Union Equipment (a) No operator shall be required to operate equipment belonging to a contractor or supplier with whom this Local Union is not in signed rela- tions provided, Umon equipment is available in the locality No party to this agreement shall rent or supply equipment unmanned to anyone doing con- struction work covered by this agreement who is not in signed relations with this Union (b) No employee represented by this Union on construction work shall be required to operate equipment of or for any Employer who has any in- terest in a firm or company doing construction work within the jurisdiction of this Union and which is not in signed relations with this Union The Board held in sum that the above clauses, including 11(b)—the "dual Company" clause, were secondary in nature, and went beyond the protection of the construc- tion industry proviso, and therefore, that Local 542 vio- lated Section 8(b)(4)(n)(A) of the Act by threatening York In finding that the clauses went beyond the con- 16 The cases cited by General Counsel and the charging parties as in- ferentially supporting their position, are plainly not in point Electrical Workers IBEW Local 1186, 92 NLRB 254 (1971), and Operating Engineers Local 3 (Stuckel Rock), 271 NLRB 921 (1984), involved contractual re- strictions on the kind of equipment and materials which could be brought to the jobsite In essence these clauses were product boycott provisions which purported to regulate offsite work Therefore they went beyond the protection of the proviso The legislative history of the Landrum- Griffin amendments indicates that Congress was particularly concerned that proviso protection would not be extended to such clauses See H R Rep No 1147 on S 1555, 86th Cong 1st Seas 39 (1959), 1 Leg Hist 943 (LMRDA 1959) of the Labor-Management Reporting and Disclosure Act of 1959 at 943 Food & Commercial Workers Local 1442 (Ralphs Gro- cery), 271 NLRB 697 (1984), was not a construction industry case and did not involve an interpretation of the construction Industry proviso South- ern California District Council of Hod Comers (Swimming Pool Gunite Contractors), 144 NLRB 978 (1963), which was distinguished by the Board in Canel, is also distinguishable from the present case In Swim- ming Pool Gunite, as found by the Board, the clause at Issue did not deal with contracting or subcontractmg, but Instead was designed to absolve the signatory umon from responsibility under its no-strike agreement when strikes occurred on construction projects General Counsel also argues (Br 54) that if Congress Intended the proviso to protect agree- ments such as the instant clause, then the proviso would have read "relat- ing to work to be performed," Instead of "relating to the contracting or subcontracting of work to be done" However, the former language would have been so vague as to be meaningless, because It would have encompassed every potential subject for bargaining in the construction industry, whether primary, secondary, mandatory, or nonmandatory It is evident that Congress referred to "contracting or subcontracting" in order to make clear that the proviso protected secondary agreements which would otherwise fall within the prohibitory language of Sec 8(e) 632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD struction industry proviso, the Board based its determina- tion solely on the premise that "Neither the first sen- tence of Section 11(a) nor Section 11(b) is limited to situ- ations where the boycotted supplier of the equipment has any employees at the jobsite " The Board adhered to its previously expressed view, that "the 8(e) proviso was in- tended to prevent labor strife among nonunion and union employees at the same jobsite " In sum, the Board held that the clauses were not protected by the proviso be- cause they restricted the signatory employer from per- forming work at jobsites where nonunion labor was not present The Board also found that Local 542 violated Section 8(b)(3) of the Act However, the Board did not find that the clauses were unlawful or unprotected by the proviso for this reason Rather the Board's finding was based on two other grounds First, the finding was based on Local 542's insistence that it would not permit York to sign the contract unless York agreed to take steps to bring Wagman, its parent company, under the contract Indeed York itself asked to sign the contract The Board concluded that Local 542 thereby condi- tioned negotiations on enlargement of the bargaining unit, a nonmandatory subject of bargaining Second, the Board held that Local 542 further violated Section 8(b)(3) by holding the negotiations hostage to another nonmandatory subject of bargaining, namely, its demand for contract provisions banned by Section 8(e) On review, the court of appeals affirmed the Board's deci- sion The Court concurred in the Board's analysis of the construction industry proviso, stating "We fail to see how the rationale of eliminating friction between union and nonunion workers on a jobsite couldhave any appli- cation to the use of inanimate equipment" (532 F 2d at 906) If York County Bridge were the last word on the sub- ject, then I would be constrained to find, based on its au- thority, that the present clause goes beyond the protec- tion of the construction industry proviso However, it was not the last word Four months after the Board issued its decision in York County Bridge, the Supreme Court decided Connell Construction Co v Plumbers Local 100, 421 U S 616 (1975) This was a civil action by Con- nell to annul an agreement between Connell and Local 100 as an illegal restraint on competition under Federal and state law Connell was a general building contractor Local 100 did not represent any of Connell's employees, nor did it seek to represent those employees Rather, Local 100 picketed Connell and other general contrac- tors to obtain, and did obtain, an agreement which pro- vided in sum that the signatory firm would contract or subcontract on-site construction work within Local 100's trade jurisdiction, only to firms which were parties to collective-bargaining agreements with Local 100 Local 100 contended that the agreement was protected by the construction industry proviso to Section 8(e), and there- fore that antitrust policy must defer to the Act The Su- preme Court disagreed The Court held that Federal antitrust laws might be applicable, because the 8(e) pro- viso "extends only to agreements in the context of col- lective-bargaining relationships," and "possibly to conunon-situs relationships on particular jobsites as well" The Court declined to pass on the latter suggested limitation to the proviso However the Court, by impli- cation, questioned whether such a narrow interpretation of the proviso was warranted Specifically, the Court cited its earlier decision in National Woodwork, supra, for the proposition that the proviso was "a measure designed to allow agreements pertaining to certain secondary ac- tivities on the construction site because of the close com- munity of interests there," but observed that "other courts have suggested that it serves an even narrower function to alleviate the fnctions that may arise when union men work alongside nonunion men on the same construction site "17 The fourth case is Carpenters Local 944 (Woelke & Romero Framing), 239 NLRB 241 (1978), enfd en banc sub nom Associated Builders v NLRB, 654 F 2d 1301 (9th Or 1981), affd in pertinent part 456 U S 645 (1982) Local 944 struck Woelke & Romero in further- ance of its demand for a contract clause which prohibit- ed the signatory contractor and its subcontractors from subcontracting work at any jobsite "except to a person, firm or corporation, party to an appropriate, current labor agreement with the appropriate Union, or subordi- nate body signatory to this Agreement" The case squarely presented the issue of whether in the context of collective-bargaining relationship, the clause was protect- ed by the construction industry proviso The Board had little difficulty in concluding that this broad clause went "far beyond protecting traditional bargaining unit work for bargaining unit employees" The Board held that the clause was "neither a valid work preservation clause nor a valid union standards provision," but was secondary in nature Nevertheless, after a detailed analysis of the Su- preme Court's decision in Connell, the Board held that "Inasmuch as Respondents' proposed contract provisions here were advanced in the context of a collective-bar- gaining relationship between Respondents and Woelke, we find that the clauses are privileged by the construc- tion industry proviso to Section 8(e) of the Act Accord- ingly, we shall dismiss the complaint to the extent that it alleges that Respondents' picketing of Woelke in support of the subcontracting proposals violated Section 8(b)(4)(1) and (u)(A) of the Act" The Board rejected the arguments of General Counsel and Woelke that the Con- nell rationale "significantly narrowed" the scope of the 8(e) proviso, in part by requiring that the contractual clause apply to sites at which the employer has employ- ees represented by a labor organization Significantly, the Board never mentioned York County Bridge, although its decision m Woelke was squarely contrary to its rationale in that case This prompted the Ninth Circuit Court to 17 I do not agree with Manganaro Maryland's argument (Br 67) that the Connell restriction should be extended by analogy to the present case, because the clause at issue would cover employees of nonunion affiliates which do not have collective-bargaining contracts with the Union The Court's rationale in Connell precluded such an extension The Court found that the record contained "no evidence that the Union's goal was anything other than organizing as many subcontractors as possible," and that "Local 100, by agreement with several contractors, made nonunion subcontractors ineligible to compete for a portion of the available work" Nevertheless, the Court concluded that "There can be no argument in this case, whatever its force in other contexts, that a restraint of this mag- nitude might be entitled to an antitrust exemption if it were included in a lawful collective-bargaining agreement" PAINTERS DISTRICT COUNCIL 51 (MANGANARO CORP ) 633 cite York County Bridge for the proposition that "the po- sition of the agency has not been an unwavering one" In fact, the Board's analysis of Connell indicates not that the Board was being inconsistent, but that the Board inter- preted Connell as undercutting the rationale of York County Bridge, and concluded that York was no longer viable law The Board, if it wished, could have distm- ginshed York, e g, on the ground that that case involved a double-breasting clause or an 8(b)(3) violation Howev- er, the Board did not do so The Board's silence speaks for itself As matters turned out, the Board read the Su- preme Court correctly The Court adopted a broad inter- pretation of the 8(e) proviso, holding that the proviso "ordmanly shelters union signatory subcontracting clauses that are sought or negotiated in the context of a collective-bargaining relationship, even when not limited in apphcation to particular jobsites at which both union and nonunion workers are employed" The Court ac- knowledged that "secondary subcontracting agreements like those at issue here create top-down organizing pres- sure," but held that "Congress endorsed subcontracting agreements obtained in the context of a collective-bar- gaining relationship—and decided to accept whatever top-down pressure such clauses might entail" The Court went on to explain that the Act contained other provi- sions which protected the rights of nonunion employees in the construction industry In sum, York County Bridge is no longer viable law, and the Supreme Court has limited the impact of Connell to the issue there presented, i e, the validity of hot cargo agreements obtained outside of the context of a collec- tive-bargaining relationship Although Carve! and Woelke & Romero did not involve double-breasting clauses, their rationale would protect the clause at issue in the present case As discussed, the clause in Carve! was broader in scope than the clause in the present case, except insofar as it was limited to jobsites where both union and non- union workers might be employed However Woelke & Romero excluded this factor as a basis for denying the protection of the 8(e) proviso The contract provision in Woelke was far broader in its organizational implications than the present clause The Woelke provision, which covered all jobsite work, was designed to benefit not only the signatory union, but all building trades unions In contrast the present clause is expressly limited to bar- gaining unit type work, when performed by firms affili- ated with the signatory employer through common man- agement, control or majority ownership Therefore on its face, the present clause reflects at least an arguable unit work preservation purpose which was plainly inconsist- ent with the broadly worded clauses involved m Carve! and Woelke The legislative history of Section 8(e), although not di- rectly addressed to the problem of "double breasting," also tends to support the Union's position in this case I do not agree with General Counsel's argument (Br 58) that the issue presented involves whether the construc- tion industry proviso should be interpreted in an "expan- sive or dynamic" manner Rather, the issue involves whether the proviso should be interpreted in a flexible or a rigid manner Was the proviso frozen in time, so as to address only the problems of the 1950s? Or was the pro- viso also intended to enable the construction industry unions, through the process of collective bargaining, to deal with future problems which might not have been anticipated in 1959? The key legislative history indicates a flexible approach As indicated, Senator John F Ken- nedy, speaking on behalf of the Senate conferees, stated that the proviso applied not only to "promises not to subcontract work on a construction site to a nonunion subcontractor," i e, conventional no-subcontracting clauses, which "appear to be legal today," but also to "all other agreements involving undertakings not to do work on a construction project site with other contrac- tors or subcontractors regardless of the precise relation- ship between them" 105 Cong Rec 17900 (1959), 2 Leg Hist 1433 Senator Kennedy could not have anticipated that more than two decades later, construction unions would regard double-breasting as a major problem in connection with jobsite work Nevertheless, his state- ment makes clear that the 8(e) proviso was not simply in- tended to apply to clauses in common use in 1959, whose legality had been determined, but to future attempts by unions to deal with industry problems, without limitation as to nature of the relationship between the contractors and subcontractors involved "Since the proviso was added to Section 8(e) at the Senate conferees' insistence, and since Senator Kennedy was chairman of the Senate conferees, his explanation of the clause is entitled to sub- stantial weight" Woelke & Romero, supra, 456 U S 645 at fn 9 Throughout their briefs, including their discussions of the construction industry proviso, General Counsel and the charging parties have repeatedly emphasized the theme that the clause at issue should be found unlawful because the clause purports to govern separate, nonsigna- tory employers Thus General Counsel asserts (Br 54) that "the clause relates to and purports to control the signatory contractor's investment, management or assert- ed control of separate employers which have nothing to do with work to be performed by, or work controlled by the signatory contractor" Similarly, Manganaro Mary- land argues (Br 67) that "the breadth of the no-double breasted clause raises special concerns under Section 8(e) to the extent that the contract would be applied to em- ployees of separate employers or separate units" Man- ganaro Maryland asserts that "In this context, non-union affiliates which would be covered by the clause should be viewed as 'stranger contractors " As indicated, the Supreme Court in Woelke & Romero addressed such con- cerns, and rejected similar arguments Moreover, the ar- guments are based on an erroneous premise which equates separate employer status with lack of nght or power of control As found, the instant clause could at least theoretically apply to firms which are separate em- ployers within the meaning of the Act However, if two or more firms engaged directly or indirectly in perform- ing unit type work, share common management, control or majority ownership, then together they comprise an entity which has the right or power to control such work, regardless of whether they have chosen to actual- ly or actively exercise such control Berman Enterprises v Longshoremen ILA Local 333, 644 F 2d 930 (2d Or 634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1981), cert denied 454 U S 965 (1981), is in point Berman, like Connell Construction Co, was an antitrust action which involved the legality of an alleged hot cargo contract provision 18 The provision, which might be described as a maritime equivalent of a no-double breasting clause, read as follows Section 1 Application Agreement This Agreement applies only to all licensed and unlicensed Employees, employed on tugboats and self-propelled lighters owned or operated by the Employers, a subsidiary company, an affiliated com- pany or a company division in the Port of New York and vicinity [Emphasis added] This being a maritime industry case, ILA did not have the benefit of either Section 8(e) proviso Rather, it was mcumbent upon ILA to demonstrate that the clause was primary in nature, 1 e, a work preservation clause The Court acknowledged that in order to meet this standard, ILA would have to show that (1) the clause "must have as its objective the preservation of work traditionally performed by employees represented by the union, and (2) "the contracting employer must have the power to give the employees the work in question—the so-called 'right of control' test" The Court found that the record evidence in the trial court was sufficient to support ILA's defense, and affirmed judgment dismissing the antitrust claim The Court found that the evidence was sufficient to demonstrate a work preservation object The Court's finding with respect to the second test is particu- larly sigmficant to the present case The Court found in connection with the "antitrust claim," that General Marine, the signatory employer, and its affiliate, plaintiff Berman, whose employees were represented by a differ- ent union, constituted a single employer under the Act However, in its discussion of the "labor law claim," i e, the 8(e) question, the Court made no finding that all sig- natory members of the employer association constituted single employers with their respective affiliates Never- theless, the Court held that "the Union's conduct also is not vulnerable to Berman's `right to control' argument because the Union did not coerce Association members to obtain work for the Union that the members had no right or power to assign" (emphasis added) It is evident that the Court mterpreted the phrases "affiliated compa- ny" and "subsidiary company" as encompassing entities which had the right or power to assign unit work Indeed the courts have long held, in sum, that separate employer status does not guarantee absolute protection under Section 8(b)(4)(A) and (B) of the Act, that union pressure directed against one employer, in furtherance of a dispute over the conditions of a separate employer or self-employed person, may be lawful where the union can demonstrate a work preservation objection, coupled with actual or potential control of such conditions by the struck or signatory employer, and that Denver Building '8 The Federal Courts may decide labor law questions that emerge as collateral Issues in suits brought under independent Federal remedies, in- cluding the antitrust laws Connell Construction Co, supra, 421 U S at 626 Trades' does not require otherwise See Teamsters (ACE Transportation) v Oliver, 358 U S 283, 294 (1959), Team- sters Local 24 v NLRB, 266 F 2d 675, 680 (D C Cir 1959), Building Service Employees (Terminal Barber Shops), 313 F 2d 880, 883 (D C Cir 1963), Production Workers Local 707 (Checker Taxi) v NLRB, 793 F 2d 323, 331 (D C Cir 1986) Thus in ACE Transportation, supra, the Court held that Local 24 could lawfully strike ACE in furtherance of a dispute over the terms and con- ditions of employment of drivers employed by owners of equipment ("lessors") who leased their tractors to ACE The Court explained that "the businesses of the Lessors and ACE are so integrated operationally that for pur- poses of this proceeding they must be deemed either a single employer, a joint or common venture, a 'straight line' operation within the Board's understanding of that term, or an alliance of interest" Therefore the Court concluded that whichever term best descnbed the rela- tionship, ACE could not be regarded as a neutral under the secondary boycott provisions of the Act Similarly, the Board has never construed the right-of-control test as one to be invoked whenever the business entities in- volved constitute separate employers under the Act Rather the Board explained that in applying the test "our analysis has not nor will it ever be a mechanical one, and, in addition to determining, under all the sur- rounding circumstances, whether the union's objective is truly work preservation, we have studied and shall con- tinue to study not only the situation the pressured em- ployer finds himself in but also how he came to be in that situation And if we find that the employer is not truly an 'unoffendmg employer' who ments the Act's protections, we shall find no violation in a union's pres- sures even though a purely mechanical or surface look at the case might present an appearance of a [viola- tion] " Plumbers Local 438 (George Koch Sons), 201 NLRB 59, 64 (1973), enfd 490 F 2d 323 (4th Qr 1973) No case has been cited to me, nor have I found any case in which the Board invoked the right-of-control test against a union m a situation where the employers in- volved were related firms with common management, control or majority ownership Plainly, if a union may under Section 8(b)(4)(B), in furtherance of a work pres- ervation objective, engage in economic pressure against related or integrated firms which do not meet the single employer test, then it is difficult to see why the 8(e) pro- viso, which expressly permits secondary agreements in the construction industry, should not be construed as permitting agreements which apply to related firms 28 19 NLRB v Denver Building Trades Council, 341 Us 675, 689-690 (1951) 20 A C & S also argues (Br 13) that the antidouble-breasting which was Introduced in the 99th Congress, demonstrates that the clause at issue is illegal A C & S is mixing apples and oranges The proposed legislation would by operation of law, impose the status of single employ- er and single bargaining unit upon double-breasted operations in the con- struction Industry The present case presents a question of whether under existing law, a union may through the process of collective bargaining, seek or enter Into a contract which would provide such status This argu- ment will be discussed further in the next section of this decision PAINTERS DISTRICT COUNCIL 51 (MANGANARO CORP ) 635 E The 8(b)(4)(B) and 8(b)(3) Allegations and Concluding Findings with Respect to the 8(b)(4)(A) Allegations As the clause at issue is protected by the construction industry proviso, it follows that the Union did not vio- late Section 8(b)(4)(1) and (u)(A) of the Act by striking Manganaro Maryland, A C & S or any other unit em- ployer in order to obtain a contract containing that clause Section 8(b)(4)(A), in pertinent part, prohibits a labor organization from engaging in strikes and other co- ercive conduct in order to force an employer or self-em- ployed person "to enter into an agreement which is pro- hibited by Section 8(e) " A clause which is protected by the construction industry proviso is not an agreement "prohibited by Section 8(e) " Therefore Section 8(b)(4)(A) does not prohibit a labor organization from engaging m strike or other economic pressure to obtain such an agreement Northeastern Indiana Building Trades Council (Centhvre Village Apartments), 148 NLRB 854, 857-858 (1964), revd on other grounds 352 F 2d 696 (D C Cir 1965) Therefore I am recommending that the pertinent allegations of the complaint be dismissed The 8(b)(4)(B) allegations of the complaint, and a com- panion 8(b)(4)(A) allegation, all of which relate to Man- ganaro Maryland, fail for lack of evidence The com- plaint alleges in sum that the Union violated Section 8(b)(4)(0 and (u)(B) by refusing to refer employees to Manganaro Maryland for objects of (1) forcing Mangan- aro Maryland to cease doing business with Manganaro Brothers, Inc , Manganaro Industries, Inc , and Mangan- aro Holding Company (Brothers, Industries and Hold- ing), so that Brothers, Industnes, and Holding will cease doing business with Sweeney, "unless the agreement sought by Respondent is applied to Sweeney," and (2) forcing Sweeney to recognize and bargain with the Union as the representative of Sweeney's employees, "despite the fact that [the Union] has not been certified as the exclusive bargaining representative of such em- ployees in accordance with the provisions of Section 9 of the Act" These allegations fail for lack of evidence that the Union struck Manganaro Maryland for any object other than to obtain a contract containing the clause at issue Indeed, all of the unfair labor practice allegations of the complaint are predicated on that demand, set forth in paragraph 17 of the consolidated complaint The re- maining allegations are conclusory in nature Unlike the situation in York County Bridge, supra, the Union never attached conditions to its demand As indicated, the Union, during the course of negotiations, expressed the opinion that a "work preservation" clause would elimi- nate the practice of double-breasting However, at no time did the Union either expressly or impliedly indicate that it sought to achieve that result except through and in accordance with the clause As indicated, General Counsel does not allege that the clause contains any un- lawful self-help provisions Since Centhvre, supra, the Board has consistently held that a strike or picketing to secure a clause protected by the construction industry proviso to Section 8(e), does not alone establish the exist- ence of a proscribed object under Section 8(b)(4)(B) Centhvre, supra, 148 NLRB at 858, Plasterers Local 2, 149 NLRB 1264, 1265 (1964), Laborers Local 1082 (E L Boggs Plastering), 150 NLRB 158, 164-165 (1964), affd 384 F 2d 55 (9th Cir 1967), cert denied 390 U S 620 (1969) The companion 8(b)(4)(A) allegation, previously described, also fails for lack of evidence The evidence fails to establish that the Union struck to obtain any per- tinent agreement other than the work-preservation clause quoted above That clause, and no other agreement sought by the Union, would determine whether Mangan- aro Maryland was required to cease doing business with other firms If General Counsel is contending that the clause at issue is further violative of Section 8(e) because it would require Manganaro Maryland to cease doing business with Brothers, Holding, and Industries unless the contract were applied to Sweeney, then the allega- tion would fail for the reasons discussed above, i e, be- cause the clause is protected by the construction industry proviso Insofar as pertinent to the issues in this case, the Union made the same demand upon Manganaro Mary- land that it made upon all of the contractors who partici- pated in the 1984 negotiations, namely, that they agree to the work-preservation clause In light of total lack of evidence that the Union, by proscribed self-help means, sought to compel Manganaro Maryland to cease doing business with related firms, the 8(b)(4)(B) and companion 8(e) allegations would seem to serve no purpose other than as a vehicle for obtaining an advisory opinion as to the legal status of the relationships among various "Man- ganaro organization" firms and their employees With respect to the 8(b)(3) allegations, the complaint alleges that the Union failed and refused to bargain in good faith with Manganaro Maryland and A C & S - CIB by demanding, bargaining to impasse, and striking to obtain a contract containing the work-preservation clause, because the provisions of the clause "are prohibit- ed by Section 8(e) of the Act in that they require a con- tracting employer to cease doing business with other per- sons" and "are not provisions respecting the wages, hours, or other terms and conditions of employment of the employees of [Manganaro Maryland or A C & S - CIB] in the Manganaro unit or A C & S unit respec- tively" These allegations are insufficient as smatter of law A union does not violate Section 8(b)(3) of the Act by striking to obtain a contract which is protected by the construction industry proviso to Section 8(e) Arnold M Hansen, supra, 149 NLRB at 1265-1266, E L Boggs Plastering Co, supra, 150 NLRB at 165 For the reasons previously discussed, York County Bridge, supra, does not hold otherwise As the Board stated m Boggs, "it would be anomalous" to hold that the right given by Congress to permit unions m the construction industry to strike for clauses protected by the construction industry proviso, was taken away under Section 8(b)(3) (150 NLRB at 165) Any agreement which would be unlawful under Section 8(e), but for the proviso, constitutes what would be, absent the proviso, a nonmandatory subject of bar- gaining for the same reasons advanced by General Coun- sel, because such agreements (1) require a cessation of business with other persons, and (2) concern the terms and conditions of employment of nomuut employees It is evident that General Counsel's theory would not merely circumvent, but would overrule Centhvre, by re- 636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD vivmg the doctrine of Colson & Stevens, 21 albeit under a different label That doctrine was abandoned by the Board in Centhvre after the doctrine was uniformly re- jected by every court of appeals which had an opportu- mty to consider it In Colson & Stevens, the Board inter- preted Section 8(b)(4)(A) as prohibiting strikes or picket- mg to obtain an agreement protected by the construction industry proviso to Section 8(e), notwithstanding the un- ambiguous statutory reference to "any agreement which is prohibited by Section 8(e) " The Board held in sum that the Act permitted only "voluntary" agreements under the construction industry proviso Apart from the fact that this interpretation ran counter to the language of Section 8(b)(4)(A), the interpretation was fallacious in another significant respect All collective-bargaining con- tracts are in a real sense, the product of coercive pres- sure Both sides come to the bargaining table armed with their respective ability to exert economic pressure on the other party Thus the Union is backed up by its ability to strike, and the employer by its ability to lock out em- ployees, replace strikers or otherwise withstand a strike The concept of "voluntary" agreements may have some significance with such matters of mutual interest as in- dustry promotion funds However, if the controversial matter of restrictions on contracting was treated as a nonmandatory subject of bargaining, then for all practi- cal purposes the construction industry proviso would be rendered inoperative, contrary to the intent of Congress As discussed, General Counsel's reliance on York County Bridge is misplaced More fundamentally, General Counsel's position, specifically with respect to the 8(b)(3) allegations, and generally with respect to its overall ap- proach to this case, is based on a misinterpretation of the Kiewit case, supra In order to view Kiewit in proper per- spective, it is necessary to consider the course of that liti- gation in some detail Kiewu involved a double-breasted operation in the construction mdustry Peter ICiewit Sons' Co (Kiewit) and South Prairie Construction Co (South Prairie) were each corporate subsidiaries of Peter Kiewit Sons' Inc (Inc ) Operating Engineers Local 627 had a collective-bargaining contract with Kiewit, but South Prairie operated on a nonunion basis General Counsel alleged that when South Prairie expanded its operations into the jurisdiction of Local 627, the subsidi- aries violated Section 8(a)(5) and (1) of the Act by refus- mg to apply Kiewit's contract to South Prairie's employ- ees The contract did not contain a no-double breasting clause, and there was no contention that Local 627 vio- lated Section 8(b)(3) or any other Section of the Act by demanding that the contract be applied to South Prairie's employees The Board, noting the absence of any conten- tion that South Prairie was an alter ego of Kiewit, dis- missed the complaint on the ground that "South Prairie and ICiewit are separate employers under the Act and that the employees of each constitute a separate bargain- ing unit" (206 NLRB 562) On review, the Court of Ap- peals, in disagreement with the Board determined upon the evidence that Kiewit and South Prairie constituted a single employer under the Act The Court then went on 21 Laborers Local 383 (Colson & Stevens Construction), 137 NLRB 1650 (1962), revd in pertinent part 323 F 2d 422 (9th Cll. 1963) to hold that the Board erred in finding that the subsidiar- ies had no obligation to recognize Local 627 as the bar- gaining representative of South Prairie's employees or to extend the terms of Local 627's contract with Kiewit to South Prairie's employees The Court based this determi- nation on its conclusion "that a reasonable likelihood that Kiewit's business would decline and that Kiewit's employees would lose work (to South Prairie) has been established, so that application of the 'single employer' principle would serve to protect the Union's agreement with Kiewit and to prevent Kiewit's employees from losing 'the fruits of the contract " (518 F 2d at 1047, 1049-1050) The Supreme Court held in sum that the Court of Appeals acted properly within the scope of its reviewing authority by reversmg the Board on the single employer issue, but exceeded that authority by deciding the "unit" question in the first instance, instead of re- manding the case to the Board so that it could make the initial determination (425 U S at 803-804) Pursuant to the Supreme Court's decision and order, the case was re- manded to the Board In its second decision, the Board acquiesced in the court of appeals' determination that the two subsidiaries constituted a single employer under the Act, but held upon consideration of the evidence that the employees of South Prairie had "a distinct and separate community of interests from the employees of Kiewit so as to constitute a separate appropriate bargaining unit" The Board explained that "In determining whether a single employer exists we are concerned with the common ownership, structure, and integrated control of the separate corporations, in determining the scope of the unit, we are concerned with the community of inter- ests of the employees involved" In determining the unit question the Board considered the same factors as those used m determining whether a multiplant or single-plant unit is appropriate, namely "the bargaining history, the functional integration of operations, the differences in the types of work and the skills of employees, the extent of centralization of management and supervision, particular- ly in regard to labor relations, hiring, discipline, and con- trol of day-to-day operations, and the extent of inter- change and contact between the groups of employees" The Board found that "the operations of South Prairie and Peter Kiewit are not so closely intertwined in all re- spects that their projects are indistinguishable or their employees equally under the jurisdiction of both firms" The Board held that "As South Prairie's employees con- stitute a separate appropriate bargaining unit, we further find that it would be improper to impose upon those em- ployees the collective-bargaining agreement executed by ICiewit and Local 627" Therefore the Board again dis- missed the complaint (231 NLRB 76) On review, the court of appeals affirmed the Board's decision, holding in sum that the Board acted properly within its "broad dis- cretion to determine appropriate bargaining units" (595 F 2d 586) If the Supreme Court had affirmed the court of ap- peals' initial decision in Kiewit, then by operation of law, double-breasted operations conducted by a "single em- ployer" within the meaning of the Act, would be merged into a single unit if the operations of the nonunion PAINTERS DISTRICT COUNCIL 51 (MANGANARO CORP ) 637 "breast" posed a threat of loss of work by the unionized operation The recent proposed antidouble-breasting leg- islation, previously noted, would if enacted have accom- plished the same result, albeit on a broader standard Neither Kiewit nor the proposed legislation address the question here present, namely, whether a union may through the process of collective-bargaining, seek and negotiate a collective-bargaining contract which would preclude double-breasted operations involving jobsite work in the construction industry Kiewit did not involve an alleged "hot cargo" agreement, nor did Local 627 seek such an agreement Nowhere in Kiewit is there any discussion of the applicability of the construction indus- try proviso Rather the Board simply held in sum, that in the absence of contractual obligation the employer was not obligated, as a matter of law, to apply Local 627's contract to employees who would constitute a separate appropnate bargaining unit Similarly, in York County Bridge, supra, the Board held that Local 542 could not lawfully condition bargaining on the inclusion of another firm under the contract Therefore Kiewit does not con- stitute authority for finding an 8(b)(3) violation in the present case Rather, as has been discussed, the rationale of other Board and court decisions, including the Su- preme Court's decision in Woelke & Romero, compel a contrary result Assuming arguendo that the Union had engaged in strike conduct against Manganaro Maryland for the ob- jects allegedly proscribed by Section 8(b)(4XB) of the Act, then the next question presented would be whether Manganaro Maryland, together with Brothers, Industries, Holding, and Sweeney, constitute a single employer under the Act If so, then there can be no violation of Section 8(b)(4)(B), regardless of whether Sweeney is the alter ego of Manganaro Maryland, or whether in the ab- sence of an alter ego relationship the employees of Man- ganaro Maryland and Sweeney would together comprise an appropriate bargaining unit or whether the employees of Sweeney are part of the multiemployer unit found herein See Teamsters Local 200 (Milwaukee Plywood), 126 NLRB 650, 651, 654 (1960), affd 285 F 2d 325, 327 (7th Cif 1960), Teamsters (Alexander Warehouse), 128 NLRB 916, 918 (1960) 22 22 Sec 8(b)(4)(13) in sum prohibits strike conduct for objects of (first part) forcing any person to cease doing business with any other person, or (second part) forcing any other employer to recognize or bargain with a union as the representative of the employees under Sec 9 of the Act The present complaint alleges in sum that the Union violated Sec 8(6)(4) first part (B) by striking Manganaro Maryland to force Manganaro Maryland to cease doing business with Brothers, Industries, and Holding unless the contract sought by the Union is applied to Sweeney and violated second part (B) by striking Manganaro-Maryland to force Sweeney to recognize and bargain with the Union as the representative of its employees The second allegation is redundant Second part (B) does not proscribe any- thing which is not already proscribed by first part (B) If the struck em- ployer or person is a neutral employer or person who is uninvolved in the Union's dispute, then the strike is violative of second part (B) regard- less of whether he has any business relationship with the party with whom the Union has its dispute (they may even be competitors), regard- less of whether the Union has a cognizable dispute with any specific person, and regardless of the nature of the primary dispute Mannme Union (Houston Maritime Assn) v NLRB, 342 F 2d 538, 543-544 (2d Cir 1965), cert denied 382 U S 835 (1965), Maritime Union (Delta Steamship Lines) v NLRB, 346 F 2d 411, 416-420 (1) C Or 1965), cert denied 382 US 840 (1965), NLRB v Washington-Oregon Shingle Weavers' District If it were necessary to reach the question, I would find that Manganaro Maryland, together with Brothers, In- dustnes, Holding, and Sweeney, constitute a single em- ployer under the Act, and therefore there can be no vio- lation of Section 8(b)(4)(B) as alleged m the complaint All of the critical elements (common ownership, central- ized control of labor relations, common management and interrelation of operations) are present It is undisputed that all five corporations, together with another corpora- tion, Manganaro Corporation, New England (Manganaro New England) are commonly owned by the brothers John and Frank Manganaro John and Frank each own one-half of the stock of Industries (until 28 February 1984 another brother, Anthony Manganaro, was also a co-owner) 23 Manganaro Maryland, Sweeney, and Man- ganaro New England, the actual operating companies, are wholly owned subsidiaries of Holding, which is a wholly owned subsidiary of Brothers, which in turn is a wholly owned subsidiary of Industries John, Frank, and/or Anthony Manganaro comprise the board of di- rectors of all five corporations Corporate records indi- cate that as of May 1984 Frank was the sole director of Sweeney, that John and Frank were directors of Indus- tries, Brothers, Holding, and Manganaro Maryland, and Anthony had given up or was in the process of relin- quishing his directorships with the various Manganaro corporations However, counsel for Brothers and Sweeney, who initially appeared as mtervenors in this proceeding, admitted at the outset of the hearing that John was board chairman of both Manganaro Maryland and Sweeney John is also board chairman at least of In- dustries and was at all times and still is president of In- dustries, Brothers, and Holding John D Hampshire Jr was president of Manganaro Maryland from 1 March 1983 until 11 October 1984, when he resigned at the re- quest of John Manganaro Hampshire succeeded Antho- ny Manganaro as president, and was in turn succeeded by Frank Manganaro Edward Small was president of Sweeney from 10 February to 17 September 1984, Council (Sound Shingle), 211 F 2d 149, 152 (9th Or 1954) Both first part (B) and second part (B) require that there be a separate neutral employer or person with whom the striking union has no dispute If there is no such employer or person, there is no violation of Sec 8(b)(4)(B) 23 Unless otherwise indicated, my findings describe to the situation as it existed in May 1984 This does not mean that I am precluded from considering the prior history of the corporations involved on the question of single employer status General Counsel argues (Br 108) that the time limitation period of Sec 10(b) of the Act precludes consideration of evi- dence on the question of single employer status which predates the 10(b) period, i e that I cannot consider evidence of "events and circumstances" over 6 months prior to filing of the initial charge in this case General Counsel is in error Sec 10(b) is a shield, not a sword It does not pre- clude a respondent from defending Itself by presenting evidence which predates the 10(b) period, even if the evidence demonstrates unfair labor practice conduct Moreover, "Section 10(b) does not bar evidence It bars charges" NLRB v American Aggregate Co, 305 F 2d 559 (5th Cu. 1962) Thus it has been held that General Counsel may introduce evidence of joint employer status which predates the 10(b) period, even where such status is a necessary prerequisite for finding an unfair labor practice Pul- itzer Publishing Co v NLRB, 618 F 2d 1275, 1278 (8th Cu 1980), cert demed 449 US 875 (1980) See also Longshoremen ILA (New York Ship- ping), 266 NLRB 230, 243-245 (1983), affd 473 US 61 (1985), m which the Board, acting pursuant to the Supreme Court's previous directive, considered evidence on ILA's work preservation defense which went back to the early years of this century 638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD having also succeeded Anthony Manganaro in that ca- pacity Small was succeeded by Lloyd Carhart, who is in charge of day-to-day operations at Sweeney Russell En- erson was operations manager of Manganaro Maryland from October 1984, when Hampshire left, until April 1986 Enerson was in charge of day-to-day operations, and thereby functioned as the counterpart of Carhart 24 The Manganaro brothers commenced business in 1959, begmmng in Massachusetts, under the corporate name of Brothers Smce April 1982 Industries has been the parent corporation Industries and the subsidiary corporations together comprise the "Manganaro organization" Indus- tries, Brothers, Holding, together with Manganaro New England, have at all tunes been based at corporate head- quarters in Malden, Massachusetts Until the late 1970s the Manganaro organization operated only in New Eng- land However, as the organization continued to grow, the Manganaro brothers sought to expand into other areas of' the country, specifically, the Baltimore-Washing- ton area and the Atlanta area They subsequently aban- doned the Atlanta operation, but remained in the Balti- more-Washington area They formed Manganaro Mary- land to operate as a unionized firm and Sweeney Corpo- ration, Maryland as a nonunion firm Thus in 1981, when Manganaro Maryland commenced its first job in the Washington, D C area, it immediately sought out and signed a "memorandum of understanding" with the Union 25 In 1982 the Manganaro organization ceased op- erations under the name of Sweeney Corporation, Mary- land, and thereafter conducted its nonunion operations under the name of Sweeney Company Manganaro Maryland and Sweeney operate pursuant to a policy which was established by the Manganaro brothers and is enforced by John Manganaro, the chief executive of the Manganaro organization, namely, that Manganaro Mary- land operates as a union firm and Sweeney operates as a nonunion firm Only John Manganaro has authority to change this policy These facts alone are sufficient to demonstrate centralized control of labor relations for purposes of the single employer standard Mew, supra, 518 F 2d at 1046, 231 NLRB at 77 John Manganaro es- tablished guidelines for Manganaro Maryland and Sweeney in order to assure compliance with the Kiewit II standards for a lawful double-breasted operation Thus, John Manganaro ordered that there be no inter- change of field personnel or equipment between the two subsidiaries Therefore there is considerably more cen- tralized control of labor relations than was present in Kiewit itself John Manganaro also retained ultimate con- trol of the 1984 contract negotiations on behalf of Man- ganaro Maryland John Hampshire, the president and 24 Although General Counsel argues (Br 106) that the single employer issue must be decided on the basis of the situation as It existed in May 1984, General Counsel relies heavily on the testimony of Enerson and Carhart, neither of whom held their respective positions at that time Edward Small was not called as a witness in this proceeding, and John Hampshire was called as a union witness 25 As found, the memorandum stated that Manganaro Maryland was signatory to a contract with the Painters' District Council in Boston General Counsel states (Br fn 15) that the contract was actually signed by Manganaro New England If so, then It is evident that project manag- er Legg, who signed the memorandum, saw no distinction between the two companies, at least for labor relations purposes nominal head of Manganaro Maryland, kept Manganaro fully Informed of the course of negotiations and forward- ed all papers to him Richard Jackson told Michael Monroe that he could not agree to an antidouble-breast- mg clause without approval "from Boston" All nonfield personnel of the Manganaro organization, including the Washington area subsidiaries, are covered by the same benefit plans As Manganaro Maryland is a unionized firm, the wages, benefits and working conditions of its field employees are governed by applicable collective- bargaining contracts Personnel decisions (hiring, firing, transfer, etc ) and wages and workmg conditions for Sweeney field employees are determined at the company level by Sweeney's president or his subordinates Sweeney's field employees are covered by a health insur- ance plan which is their only fnnge benefit In April 1984 Industries, under the signature of its President John Manganaro, issued a revised personnel manual for the Manganaro organization The manual de- scribed the "Manganaro organization" as follows The Mangan= organization is in essence a subcon- tracting firm specializing in Fireproofmg, Drywall, Lath, Plaster and Masonry work The organization is comprised of Manganaro Brothers, Inc, the cor- porate headquarters, which was founded in 1959 and two subsidiary district offices in Massachusetts and Maryland In addition, a real estate acquisition company is active The manual listed the corporations which comprised the Manganaro organization, including Manganaro Maryland and Sweeney, and described in great detail the employee benefits plan of the organization and "the working pro- cedures of the Company" Although there are some dif- ferences in the types of work performed by Manganaro Maryland and Sweeney, both companies are essentially and substantially engaged as commercial drywall subcon- tractors in the Baltimore-Washington area Manganaro Maryland and Sweeney function as parts of a single-integrated business enterprise, under the tight control of John Manganaro and his immediate subordi- nate, Brothers' comptroller, Thomas Vagrm Brothers initially capitalized the subsidiaries, and continues to an- nually invest substantial sums of money to the extent needed to finance their operations The subsidiaries pay dividends to Brothers, the amount of which is deter- mined by their respective boards of directors, i e, John and Frank Manganaro "Corporate," meaning Brothers, prepares an annual financial plan for each of the operat- ing subsidiaries, including projected costs and profit 26 Neither subsidiary can substantially deviate from its plan without the approval of John Manganaro For example, neither subsidiary could, without his approval, undertake 26 Enerson and Carhart each testified in sum that they, together with other subsidiary personnel, prepared their respective annual financial plans, subject to approval by John Manganaro However, comptroller Vagnn, who was also presented as a General Counsel witness, testified that Brothers prepared the plan for each subsidiary Carhart admitted his testimony that he was not Involved with financial matters such as taxes, banking, accounting, and Insurance In light of Vagrm's testimony, I find that the financial plain were prepared by Brothers PAINTERS DISTRICT COUNCIL 51 (MANGANARO CORP ) 639 a project or projects which would require financing or other resources beyond the limits of the plan Moreover, the Manganaro brothers at all times retain overall con- trol of the scope, nature and direction of the operations of Manganaro Maryland and Sweeney Thus in 1984 they decided to and did substantially reduce the oper- ations of both Manganaro Maryland and Sweeney They did so not because of factors umque to the subsidiaries, but because of their overall view of the course to be taken by the Manganaro organization as a whole The decision itself reflected a difference of opinion between John and Frank Manganaro on one hand, and Anthony Manganaro (who had been in charge of both subsidiaries) on the other, and culminated in Anthony's departure from the organization Although John Manganaro is based at "corporate," i e Brothers headquarters in Malden, Massachusetts, he is regularly involved in the day-to-day operations of Man- ganaro Maryland and Sweeney, which together comprise the "Maryland district" of the Manganaro organization John Manganaro or his brother Frank regularly if not ex- clusively sign contracts, surety bonds, and guarantees of performance According to Comptroller Vagnn, John Manganaro signed such documents because contracts and bonds must be signed by "an officer of the corporation" It is evident that by "corporation," Vagrm meant Broth- ers Manganaro Maryland and Sweeney have always had at least one officer who was not a family member It is also unlikely that John Manganaro would waste his valu- able tune in performing ministerial functions Indeed Manganaro emphasized in his testimony that he has many and vaned interests which make demands upon his time The inference is warranted and I so find, that John Manganaro personally signed contracts and bonds for more substantial reasons, e g, because the contracts were negotiated with his customers, who expected him to sign, or because the contracting parties needed his signature as assurance that the resources, name, and financial integri- ty of the Manganaro organization, and specifically that of John and Frank Manganaro, stood behind the con- tract Only John Manganaro can authorize legal action John Manganaro conducts staff meetings at Malden which are attended by the operating heads of the subsidi- ary corporations, at which meetings policy matters are discussed He also conducts such meetings at the Mary- land "district" offices, which are jointly attended by the operating heads of Manganaro Maryland and Sweeney and members of their respective staffs, at which time such matters as bid strategy on particular jobs is dis- cussed 27 John Manganaro also determines the amount of bonus received by operating heads, and is involved in the selection of their subordinate supervisory personnel John Hampshire testified that as president of Manganaro 27 By "operating heads" I am referring to the persons in charge of day-to-day operations My principal point of reference is the tenure of Sweeney President Carhart and Manganaro Maryland Operations Manag- er Enerson, who as indicated were presented as General Counsel wit- nesses In this regard I am giving General Counsel the benefit of the doubt by inferring that Edward Small, as Sweeney president, had the same amount of authority as his successor Carhart Prior to the departure of Anthony Manganaro, one person was in charge of day-to-day oper- ations of both companies, I e, the "Maryland district" of the Manganaro organization Maryland he discussed the selection of foreman with Manganaro John Manganaro also exercises his authority through his subordinates at Brothers Brothers must ap- prove certain types of bids, specifically, those which exceed the financial plan or involve certain types of un- usual or difficult work Brothers also formulates and issues detailed common guidelines governing administra- tion and other operating procedures of the subsidiaries The role of Thomas Vagrm is particularly significant on the single employer issue Vagrm, a certified public accountant, was assistant comptroller for Manganaro New England In February 1984 John Manganaro pro- moted Vagnn to the position of comptroller, and trans- ferred him to Maryland for the specific purpose of over- seeing the operations of Manganaro Maryland and Sweeney Vagnn initially went on the payroll of Man- ganaro Maryland, but subsequently went on the payroll of Brothers In fact, since his promotion Vagnn has been comptroller of Brothers and in that capacity has func- tioned as comptroller for all operating subsidiaries Since June 1985 Brothers, Manganaro Maryland, and Sweeney have maintained offices in adjacent suites in an office building in Greenbelt, Maryland Vagrm personally ne- gotiated the leases as a single package 28 Vagnn reports directly to John Manganaro He is responsible for assur- ing compliance with corporate policy and assuring that the subsidiaries are operated in an efficient, businesslike and economical manner Vagnn is involved on a day-to- day basis in all facets of the subsidiaries' operations except field operations and personnel and labor relations He reviews all contracts and billings, and deals regularly with contractors, subcontractors and suppliers In con- ducting the business of Manganaro Maryland and Sweeney, Vagnn acts on behalf of both subsidiaries, sometimes jointly 29 Vagnn's progression up the corporate ladder is not un- usual for Manganaro organization personnel Supervisory and administrative personnel commonly move from one corporation to another within the Manganaro organiza- tion Prior to the departure of Anthony Manganaro, offi- cers and other supervisory and administrative personnel of one subsidiary commonly served in the same capacity for the other subsidiary, or performed services for the other subsidiary Although the practice has diminished, It has not entirely ceased Richard Jackson, who was vice president for sales for Manganaro Maryland from about 28 Until some time in 1982 Manganaro Maryland and Sweeney shared common offices From that time until June 1985 they were located in separate offices at different addresses, about 1 mile apart, in Columbia, Maryland Brothers did not maintain an office in Maryland until 1984 or 1985 General Counsel argues (Br 107-108) that the 1982 split of offices "significantly altered the status of [the] relationship" between the subsidi- aries I do not agree In light of their continuing proximity and the subse- quent reconsolidation of their offices, It is evident that their separation was a temporary arrangement which did not reflect any significant change in their long-term relationship Moreover, Comptroller Vagnn testified that he performed the same functions for the subsidiaries before and after the reconsohdation of offices 29 Manganaro Maryland and Sweeney each pay fees to Brothers for services performed I do not regard this fact as demonstrating an arm's- length relationship The arrangement was devised by Brothers, and the amount of each fee is set by Brothers The subsidiaries have no choice in the matter 640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD July 1980 until February 1985, testified concerning four instances, after the two subsidiaries separated offices, in which he solicited jobs for Sweeney As late as 1985, Eugene Bucci, who is president of Manganaro New Eng- land, negotiated a contract for Manganaro Maryland with Saturn Construction Company, a nonunion general contractor Pursuant to John Manganaro's instruction, Manganaro Maryland President John Hampshire advised Sweeney President Small on purchasing practices Fran Caruso, who is administrative assistant for Sweeney, also performs administrative and clerical functions for Man- ganaro Maryland The operations of Manganaro Maryland and Sweeney are interrelated and commonly managed in numerous other ways Brothers provides common insurance cover- age for all Manganaro corporations The policies are ne- gotiated by John Manganaro Each subsidiary is kept m- formed of the other's bidding Brothers generates infor- mation for the subsidiaries through a smgle computer system Industries files consolidated Federal corporate income tax returns for itself and all subsidiaries, and all Manganaro corporations operate on the same fiscal year Payroll records of Manganaro Maryland and Sweeney are mamtamed together, without separation by corpora- tion John Manganaro has represented to employees, cus- tomers, and government agencies that Industries and its subsidiaries comprise the "Manganaro organization," and that Manganaro Maryland and Sweeney comprise the Maryland "district" or "division" of that organization Therefore he has felt free to usurp any corporate title he wishes, e g, he has represented himself as president of Manganaro Maryland and of Sweeney, and as the custo- dian of records for both subsidiaries My ultimate determinations in this case are essentially based on resolution of questions of law and in particular, the applicability of the construction industry proviso to Section 8(e) of the Act Prudence would dictate that in this situation, I should make alternative findings of fact with respect to whether the clause at issue falls within the general prohibition of Section 8(e), including but not limited to consideration of the Union's work preservation defense As indicated, I made alternative fact findings in connection with the 8(b)(4) allegations Also as dis- cussed, the usual decisional procedure is to consider the overall applicability of Section 8(e) before addressing the applicability of the proviso The problem is that the Board has precluded me from doing so During the course of this hearing, I denied petitions to revoke sub- poenas duces tecum which the Union served upon A C & S CIB, and five related or allegedly related corpora- tions These subpoenas called for the production of docu- ments showing among other things, bids and contracts in Washmgton, D C, Maryland and Virginia, field person- nel in the same area, and communications among the corporations, including communications concerning the 1984 contract negotiations, the /clause at issue in this case, and the market recovery program of the Washing- ton Building Trades On request for special permission to appeal by the subpoenaed corporations, which was sup- ported by General Counsel, the Board granted the re- quest and directed me to quash the subpoenas, which I did The Board gave no reasons for its order, although petitioners and General Counsel advanced several grounds in support of the petition (not limited to rel- evance), and the Board's Rules and Regulations (Sec 102 31(b)) require the Board and the administrative law judge to give a statement of reasons when ruling on a petition to revoke The Union also recalled CIB Oper- ations Manager Russell Seifert, who previously testified for General Counsel, as its own witness Union counsel attempted to question Seifert about the relationships among A C & S, CIB and the other subpoenaed com- panies At the direction of counsel for A C & S, Seifert refused to answer such questions It is evident that union counsel was attempting to show that A C & S -CIB was engaged in a double-breasted operation in the Washing- ton, D C area, and wished to question Seifert about such operation I permitted union counsel to make an offer of proof of what he expected to show through the testimo- ny of Seifert, and I received the offer in evidence Much of the offer actually encompassed information contained in documents which were in the possession of the Union, and I received those documents in evidence However, in accordance with the Board's prior order, I rejected the Union's offer of proof as to what it expected to show through the subpoenaed documents A C & S requested special permission to appeal from my rulings that the questions pertained to relevant matters and my accept- ance of the offer of proof Again General Counsel sup- ported the request, and again A C & S and General Counsel advanced various arguments in support of their position By order dated 16 July 1986, the Board granted the request and reversed my rulings 3° The Board ad- vanced only one reason for its order, namely, that "The Board, having duly considered the matter, and noting the absence of an 8(b)(4)(B) allegation in the complaint in 5- CC-1038, concludes that the testimony which Respond- ent sought to elicit from Russell Siefert regarding the re- lationship between AC&S and other companies is essen- tially the same information which Respondent sought in its subpoena duces tectun which the Board directed the Judge to quash and that such information is not relevant to this proceeding" [Emphasis added ] As indicated, the Board based its ruling on the absence of a secondary boycott allegation involving A C & S - CIB, and gave no other reasons Therefore I cannot assume that the Board accepted any other argument ad- vanced by A C & S or General Counsel As discussed, I have found that there was no secondary boycott con- duct in this case Therefore, if (as held by the Board) the evidence sought by the Union concerning A C & S - CIB and related firms is irrelevant to this proceedmg, then comparable evidence concerning any other unit em- ployer who has, is or may be engaged in a double-breast- ed operation within the Union's jurisdiction is also irrele- vant At most, such evidence is, under the Board's ra- tionale, relevant only for the limited purpose of deter- mining whether, for secondary boycott purposes, Man- ganaro Maryland and its affiliates are separate employers or persons under Section 8(b)(4)(B) Manganaro Mary- 30 Pursuant to the Board's Order, the Union's offer of proof is stncken PAINTERS DISTRICT COUNCIL 51 (MANGANARO CORP ) 641 land has correctly recognized this significance of the Board's ruling (Br fn 47) I am unable to reconcile the Board's rationale with National Woodwork Mfrs Assn In that case the Supreme Court made clear that both Section 8(b)(4XB) and Sec- tion 8(e) involve the same test, namely, that when a work preservation defense is raised, the determination of whether a violation has occurred cannot be made with- out an inquiry into whether, under all the surrounding circumstances, the Union's objective was preservation of work for the pnmary unit employees, or whether the agreement or boycott was tactically calculated to satisfy union objectives elsewhere (386 U S 612, 644-646 (1967) ) In the context of double-breasted operations, it is impossible to meaningfully make such an inquiry without examining the relationships among the related firms The Board's rationale also seems to convey an implied rejec- tion of General Counsel's 8(b)(3) theory in this case, which encompasses both Manganaro Maryland and A C & S -CIB General Counsel alleges in sum that even if the clause at issue is protected by the construction indus- try proviso, the Union's strike violates Section 8(b)(3) be- cause the clause is not limited to the terms and condi- tions of employment of "A C & S Umt" employees, and would require A C & S -CIB "to refuse to engage in business with any separate person unless the agree- ment is applied to that person" If this were a valid theory, then the Union would be entitled to an opportu- nity to show that A C & S -CIB was part of a double- breasted operation which constituted a single employer under the Act, or that the wings of the operation togeth- er constituted all or part of an appropriate bargaining umt In any event, in light of the Board's ruling, my analysis of the evidence must end at this point For the reasons discussed above, I find that the Union has not violated the Act as alleged in the complaint On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edsi ORDER The complaint is dismissed in its entirety Si 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