# Petition — Donald Schriver, Inc. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1218%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 451 U.S. 976 ## Text Office- Supreme Court, U.S. | g9-125% FILED 5 Jaw 19 1981 seemeenieen.s STEW: Supreme Court of the Bnited States OCTOBER TERM, 1980 © DONALD SCHRIVER, INC., SULLIVAN-KELLEY & ASSOCIATES, Topaz CONTRACTING & DEVELOPMENT COMPANY, INC., AND SULLIVAN AND ASSOCIATES, Petitioners, vs NATIONAL LABOR RELATIONS BO " Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES SUPREME COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT GERARD C. SMETANA 500 Marquette Bldg. 140 So. Dearborn St. Chicago, Illinois 60603 (312) 346-4515 Witiam H. DuRoss, II ~ Of Counsel: Suite 200 Kovar & SMETANA 1919 Pennsylvania Ave., N.W. 500 Marquette Building Washington, D.C. 20006 140 So. Dearborn St. (202 ) 659-8687 Chicago, Illinois 60603 Suite 200 1919 Pennsylvania Ave., N.W. Washington, D.C. 20006 QUESTIONS PRESENTED 1. Whether the Court of Appeals misinterpreted Connell v. Plumbers Local 100, 421 U.S. 616 (1975), in broadening the Section 8(e) construction industry proviso \to protect secondary subcontract- ing restrictions coercively imposed upon contractors by craft unions which have neither attempted to organize nor have been designated as a bargaining agent of tne contractors’ employees? 2. Whether secondary construction industry subcontracting agreements, unlawful under the “top down" organizing restrictions in Connell v. Plumbers' supra, become lawful solely because they are sought as part of an agreement covering wages, hours and working conditions? 3. Whether the Court of Appeals erred in supporting its broad construction of the proviso by relying upon a purported pre-1959 pattern of bargaining contradicted by the stipulated record in this case and not relied upon by the Board? 4. Whether the Court of Appeals erred in deferring to the decision of the NLRB in which the Board based its decision upon its interpretation in Connell v. Plumbers, Supra, rather than the area of its expertise? 5. Whether the Section 8(e) construction industry proviso protects restrictive subcontracting clauses which apply (a) to all existent and future job- sites regardless of whether the secondary union represents employees working at the jobsites; (b) regardless of whether the employer uses craft’ employees at the job- sites; (c) regardless of whether employees of the union subcontractors are actually working at the jobsites; (d) to jobsites where the secondary employer lacks contractual authority to determine whether other subcontractors are union; and (e) where affirmative evidence of jobsite friction between union and non-union employees is totally absent? 6. Whether the Court of Appeals misinterpreted NLRB v. Ironworkers, 434 U.S. 335 (1978) by holding, contrary to Section 8(f), that coerced efforts to obtain or enforce pre-hire agreements creates a collective bargaining relation- ship between the union and the picketed contractor? 7. Whether the Court of Appeals erred in construing Section 8(f) of the Act to permit labor organizations to seek by coercive means, prohibited by Section 8(b)(4)(A) of the Act, pre-hire agreements containing broad subcontracting restric- tions? 8. May “contract standards" be protected by a union through coercive pressure to obtain a restrictive secondary agreement for the henefit of employees they do not yet represent? ii TABLE OF CONTENTS ORDERS AND OPINIONS BELOW ..... . JURISDICTION a ia e 7 * ¢ o ° 2 e e ° Peewee AMVUUVED 6: a) *%) 6) 0's «6: 0 '* STATEMENT I. Il. THE STIPULATED FACTS .... .« A. B. The Contractors Operations The Trades Council and Local 1497 Threaten Schriver to Obtain Compliance With the Memorandum Agreement and the Local 1497 "Short Form" Agreement... 4% C. The Distict Council and Local 1752 Picket Topaz to Secure Compliance With MLA On or about February 22, 1977, Larry Ruiz, a business representative of Local 1752, spoke to Lonnie Tackett, Topaz's construction foreman at the Claremont, California project. Ruiz asked why Topaz was not signed up with Local 1752, Ruiz said Local 1152 would have to picket if Topaz did not sign. the contract. Topaz's labor relations consultant, Mike Sullivan, arrived at the jobsite while Ruiz |wager~ still there and asked Ruiz what cqikract he had to sign. Sullivan ask ed, gpu iz if he meant the regular carpenters’ contract with the Master Labor Agreement, and Ruiz replied, "Yes, that is the only contract that I can sign with Topaz." Sullivan said the contract was illegal, but that he was willing to sign the contract for the Claremont townhouses jobsite only, if Local 1752 would accept all the men working for Topaz and stop interferina with the owner-builders. Ruiz replied that he could not accept Sullivan's 14 °*% conditions and could not sign any contract other than the Master Labor Agreement. On February 28, 1977, at a jobsite meeting with Ruiz and Robert Wiess, attorney for the Claremont townhouses owner-builder Medvin-Norris, Joe Bickholt, business representative of the District Council, informed Sullivan that Local 1752 could not accept a contract limited to the Claremont project. In furtherance and support of their demands, Local 1752 and District Council picketed the Claremont construction project from March 4, to March 14, 1977, with signs, reading: Topaz Contracting & Dev. UNFAIR to Carpenters Local 1752 Affiliated With The Los Angeles Building and Construction Trades Council No Agreement In late May, 1975, Petitioners filed the Section 8(e) and &(b)(4)(ii)(A) charges, 15 re 7s as amended in March, 1977 upon which this case arises.’ II. DECISIONS AND ORDERS BELOW A. The Board's Decision and Order The Board concluded that the Union's coercive attempts to obtain initial execution of broad restrictive subcontracting clauses were privileged by the construction industry proviso to Section 8(e). Despite its acknowledgement that no labor organization had achieved majority designation as the collective bargaining agent of any of Petitioners’ carpentry employees, the Board construed the proviso to Section 8(e) to encompass 7Pursuant to agreement, the case was transferred directly to the Board for decision. On September 7, 1977, the issues were submitted upon the parties' pleadings, exhibits and factual stipulations. On December 4, 1977, the Board granted the joint motion and transferred these cases for issuance of a decision and order. No jurisdictional issues are presented, 16 >. ?% vy all subcontracting clauses, regardless of scope, “sought in the context of collective-bargaining relationships. - « «" (Pet. App. 81-a). The Board further broadly defined “collective bargaining relationships” to include union attempts to obtain employer agreement to "pre-hire" agreements even by coercive means, regardless of the wishes of current affected employees (Pet. App. 88-a et seq). The Board considered Connell Constr. ~ Co. v. Plumbers, Local 100, 421 U.S. 616 (1975) to support the broad scope given the construction industry proviso to Section 8(e) and its view that an attempt to obtain agreement to a “pre-hire" contract creates a "collective bargaining relationship" (Pet. App. 90-a). The Board rejected the contention that the construction industry proviso privileges subcontracting clauses limited to particular jobsites where friction exists between union and non-union employees and where signatory employers 17 are actually working, restricted to those employers signatory to agreements with one craft union, and enforceable only after the designation by a majority of the _ affected employees of the signatory union as their collective bargaining relationship (Pet. App. 80-a-81-a). B. The Decision of the Court of Appeals “ The Court of Appeals (Circuit Judges McGowan and Edwards and Judge Kashiwa, of the Court of Claims sitting by designation) affirmed the Board's dismissal of Petitioners’ Section 8(e) and 8(b)(4)(ii)(A) complaint. The Court of Appeals agreed with the Board that’ an attempt to obtain a pre-hire agreement lawful under Section 8(f) including restrictive subcontracting clauses creates the requisite “collective bargaining relationship” within the meaning of this Court's Connell decision. The Court of Appeals also held that "it is irrelevant that .. . the union lacks majority status” (Pet. App. 28-a), even though the 18 ro} panel recognized “that one of the major aims of the 1959 amendments to the NLRA, of which §8(e) was one, was to limit ‘top down’ organizing campaigns"((Pet. App. 27-a)) and that “an 8(f£) agreement is not identical in all respects to a standard 9(a) collective bargaining agreement” (Pet. App. 33-a). The Court of Appeals aiso refused to follow an intervening panel decision of the Ninth Circuit® which held that the construction industry proviso privileges subcontracting restrictions limited to specific jobsites where ; signatory union employees are employed (Pet. App. 37-a). Instead, the Court of Appeals viewed Section 8(e) as broadly protecting “continuity of work and benefits” for construction employees beyond any concern to insulate union 8pacific Northwest Chapter of the Associated Builders & Contractors Inc. v. NLRB, 609 F.2d 1341 (1979) pending rehearing en banc. 19 workers from working alongside non-union employees at particular jobsites ia.9 REASONS FOR GRANTING THE WRIT I. INTRODUCTION The decision of the Court of Appeals creates a rule of law under Section 8(e) that is contrary to earlier .decisions of this Court and effectively nullifies the Act's paramount guarantee in Section 7 preserving for all employees, including construction employees, freedom of choice in their selection of a collective bargaining representative. The decision below has far-reaching adverse consequences upon the free exercise of employee rights unintended by Congress. 9The Court of Appeals enforced that portion of the Board's decision declaring certain “self-enforcement" provisions of MLA violative of Section 8(e). This portion of the Roard's order is uncontested on this Petition. 20 By permitting construction unions to coercively obtain broad subcontracting restrictions limiting work to craft unions from unorganized employers, without first or even concurrently organizing their employees, the Court of Appeals reverses Congress' legislative judgment that the construction provision to Section 8(e) privileges only voluntary subcontracting restrictions unenforceable thereafter until the construction union obtains majority designation. The rule of law upheld below authorizes construction unions to obtain by threats of jobsite picketing and by such picketing coerced employer assent to subcontracting restrictions and other union imposed conditions of employment upon non-union workers regardless of their wishes, thereby permitting minority unions to use subcontracting clause to obtain prohibited “top down" organizing in the construction industry. Such clauses have the direct consequence of forcing non-union employees to become union 21 = 7s members to secure the employment opportunities restricted to employees of unionized contractors. Unless the petition is granted fundamental statutory rights of construction employees to select or not their own collective bargaining representative and of construction employers to be free from subcontracting restrictions sought by stranger unions will be nullified. The decision below also threatens the cost-conscious process of competitive bidding in one of our Nations largest industries. Craft unions can now establish exclusive control over all construction work within their jurisdictions and are free to picket job sites where non-union employees perform any crafv. work. It is of fundamental importance to all contractors and users of construction services that job site competitive bidding not be foreclosed in this depressed industry. 22 | The Board recognized the significance of the issues presented here by holding an unprecedented seven hours of oral argument by all interested parties, including the AFL-CIO, international craft unions, the Chamber of Commerce, contractors associations, and individual contractors. It is in the interests of contractors, users, and the Nation that the legal issues posed be promptly resolved by the highest authority. II. THE COURT OF APPEAL'S DECISION THAT COERCIVE ATTEMPTS TO OBTAIN EMPLOYER ASSENT TO "“PRE-HIRE" CONTRACTS CREATES A "COLLECTIVE BARGAINING RELATIONSHIP” IS CONTRARY TO DECISIONS OF THIS COURT In Connell Constr. Co. v. Plumbers, Local 100, 421 U.S. 616 (1975), this Court concluded that the scope of construction industry proviso can not supplant or override the primary purpose of the National Relations Act expressed in Section 7 to protect the right of all employees to “bargain collectively through representatives of their own choosing." 23 \ 29 U.S.C. §157. Speaking for a majority of the Court, Mr. Justice Powell recognized that unless subcontracting restrictions could only be sought inside "the context of a collective-bargaining relationship" and applicable only "to a particular jobsite” (421 U.S. at 635), "construction unions [would attain] an almost unlimited organizational weapon." 421 U.S. at 631. Consistent with the paramount purpose of Sections 7 and 9(a) of the Act guaranteeing employees freedom of choice from both employer and union interference in their selection or rejection of a collective bargaining representative, this Court was “unwilling to read the [Section 8(e)] construction industry proviso .. . to leave such a glaring loophole in (Congress') restrictions on ‘top-down' organizing - « «” 421 U.S. at 633. The Court effectuated the legislative scheme by concluding that the proviso authorized subcontracting restrictions in the construction industry steming from 24 collective bargaining relationships. The dissenting Justices did not object to this portion of the Court's decision. In their view, the National Labor Relations Act, rather than the Sherman Anti-Trust Act, provided the remedy for the adverse economic consequences of subcontracting restrictions sought outside a collective bargaining relationship. - In Connell a collective bargaining relationship describes an ongoing relationship between a labor organization and a construction employer whose employees have previously indicated by majority vote in a Board conducted election, or by reliable and uncoerced union security or union bargaining authorization designations that the union seeking to restrict the employer's subcontracting freedom is their choice as a collective bargaining representative. Otherwise Congress’ concern in the 1959 amendments to the Act to limit “top down" organizing and preserve employee freedom 25 -% 7" of choice in the construction industry could still be frustrated. This Court has consistently applied this definition in earlier decisions. [In National Woodwork Mfrs. Ass'n v. NLRB, 386 U.S. 612, 614 (1967), the Court used the phase “collective bargaining relationship” to describe an ongoing relationship between Frouge, a general contractor, and the carpenters international union to employ members of a carpenters local where the work would be performed. See 149 NLRB at 653. At each jobsite where members were working, the union enjoyed at least a presumption of majority status, thereby privileging the union's work preservation demands because the demand arose in the context of a collective bargaining rela- tionship during which the affected craft employees had indicated by their maintenance of union membership that the carpenters local was their choice of bargaining representative statutorily authorized to make such restrictive demands upon Frouge. 26 *% Historically, this Court has consistently recognized that work preservation and subcontracting demands are legitimate only if the demanding labor organization is the certified bargaining representative or otherwise legally entitled to the presumption of a majority status. In the first case holding an employer legally required to bargain over such demands, the stéeelworkers had been the exclusive bargaining representative of the affected employees since 1937. Fibreboard Paper Prods. v. NLRB, 379 U.S. 203, 205 (1964). This Court's decision in Houston Insulation Contractors Ass'n v. NLRB, 386 U.S. 664 (1967) is likewise founded upon a work preservation claim advanced by Asbestos Workers, Local 22 which had previously been selected as the bargaining representative of Armstrong's employees. Here, it is uncontested that the Trades Council, the District Council, and Carpenters Locals 1497 and 1752 have never attempted to organize Schriver's or 27 | Topaz's carpentry employees or to obtain membership designations from them. It is stipulated that none of Schriver's or Topaz's carpentry employees were members of Carpenters Locals 1497 or 1752. The restrictive contract demands made by picketing and threats of picketing did not arise against the background of an ongoing organizing campaign involving Schriver's or Topaz's employees or of any non-union carpentry employees working for other contractors. There is then no record support for the Court of Appeal's assertion that "the unions... explicitly sought to secure representation of Schriver's Topaz' employees." (Pet. App. 29-a) (emphasize in original). The Unions simply ignored these employeees in seeking identical subcontracting restrictions sought by Local 100 in Connell. Just as Local 100 ignored the employees of the non-union subcontractors by seeking subcontracting restrictions from general contractors, the Unions here ignored the collective bargaining agent 28 oe preferences of Schriver's and Topaz's employees. Contrary to the view of the Court of Appeals (Pet. App. 30-a), a coercive attempt to standardize the working conditions of Schriver's and Topaz's employees without their prior consent does not render “the overriding concern of the Supreme Court in Connell . - . entirely inapplicable." This Court's concern there was to preserve the very heart of the Act, which guarantees employees the right to decide which union, if any, they wish to designate as their collective bargaining agent. Hill v. Florida, 325 U.S. 538, 541 (1945); J.I. Case Co. v. NLRB, 321 U.S. 332, 339 (1944); NLRB v. Indiana & Mich. Elec. Co., 318 U.S. 9, 19 (1943); IAM v. _ NLRB, 311 U.S. 72, 79 (1940) ("freedom of choice ... is the essence of collective bargaining"). Coercive attempts to standardize wages by direct pressure solely upon the emplover without even attempting to organize the employees is the very evil Congress sought to limit in 29 i | the 1555 Landrum-Griffin amendments to the Act. The fact that Topaz and Schriver employed workers who could be organized and represented by the Carpenters renders their being ignored even more offensive to the Act's freedom of choice guarantee than the conduct of Local 100 in Connell. "Congressional concern about coerced designation of bargaining agents did not evaporate as the focus turned to the construction industry.” NLRB v. Iron Workers, 434 U.S. 335, 347-48 (1978). Petitioners agree with the Court of Appeals (Pet. App. 45-a) that construction industry employees have an interest in job security. However, the Court below ignores the basic scheme of the Act by permitting the Unions to assert this interest without the employees prior consent. The Court of Appeals and the Board exaggerate the alleged difficulties of organizing Schriver's and Topaz's carpentry employees. Both employers hired stable work forces who enjoyed continuing employment. These employees then were no 30 less accessible to solicitation at work or in their homes than industrial or retail employees. The burden of proving inaccessibility is on the organizing union. Sears, Roebuck and Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 205 (1978). The Unions never attempted to organize the employees, and thus can not complain about lack of access to the employees. Hutzler Bros. Co. v. NLRB, 630 F.2d 1012, 1017 (4th Cir. 1980). The record then contains no support for the concerns expressed by the Court of Appeals. !0 The Court of Appeals also improperly subordinated Section 8(e) and 8(a)(4)(A) to Section 8(b)(7). Whether the Union's conduct is subject to 8(b)(7) begs the question of whether the subcontractina Clause, which was the Unions" primary 1Onor did Congress. Only where employment terms were of short duration did the Congress perceive organizing difficulties (Pet. App. 32-a). 31 objective, is outside the Section 8(e) construction proviso. As the Court of Appeals properly stated (Pet. App. 20~a): If an agreement is prohibited by §8(e), §8(a)(4)(A) the Act prohibits any picketing or threats of picketing aimed at coercing an employer to enter the agreement. Therefore, even assuming recognitional object within the scope of Section 8(b)(7), that section is irrelevant to the scope of the construction industry proviso to Section 8(e). As we have shown above, the proviso protects subcontracting restrictions in the context of a collective bargaining relationship established after the union obtains majority status or the presumption thereof. The fact that the subcontracting clause is part of a short form agreement alluding to other terms and conditions of employment does not remove the subcontracting clause from Section 8(e) or remit the coerced employer to the protection only of Section 8(b)(7). There 32 is nothing in this Court's holding and reasoning in NLRB v. Iron Wkrs., supra, which suggests Section 8(b)(7) is the sole proscription upon “top down" recognition. By holding to the contrary, the Court of Appeals improperly repealed Section 8(a)(4)(A) and misinterpreted its holdings in Dallas Bldg & Constr. Trades Council v. NLRB, 396 F.2d 677 (1968), which recognized that Section 8(e) unlike Section 8(b)(7) prohibits .secondary “hot cargo" clauses regardless of whether the union seeks recognition. “Sections 8(b)(7) and 8(e) are aimed at wholiv different problems.” 396 F.2d at #82. In Dallas, Plumbers, Local 100 sought an unchallenged subcontracting clause, and the Court of Appeals in its opinion nowhere suggested that picketing and threats thereof to obtain unlawful subcontracting clauses could only be interdicted under Section 8(b)(7). III. THE COURT OF APPEALS DECISION THAT COERCIVE ATTEMPTS TO OBTAIN PRE-HIRE AGREEMENTS CREATE A “COLLECTIVE RARGAIN- ING RELATIONSHIP” IS CONTRARY TO LEGISLATIVE INTENT AND A DECISION OF THIS COURT Section 8(f) of the Act exempts the execution of a “pre-hire" agreement in the 33 stry from the reach of Section 8(a)(2), which prohibits employer support for any labor organization which does not actually represent an uncoerced majority of the affected employees. Garment wkrs. Union V.- NLRB, 366 U.S- 731, 738-39 (1961) (§8(a) (2) broadly protects freedom of choice and majority rule in employee selection of bargaining representative). The mere execution of a construction indu ee ea eee . —_ ert eee ee pares pre-hire agreement and, a fortiori, the coerced attempted here to obta as ent does not, contrary to the Court of Appeals (Pet. App. 28-a), create a collective bargaining relationship which ipso facto places rictions within the in initial sent to a pre-hire agreem subcontracting rest protection of the Section 8(e) construction industry proviso. | In NLRB v. Icon wkrs, supra, ‘ this Court carefully canvassed the legislative history leading to the 34 7. i enactment of Section 8(f). The Court concluded Congress‘ limited purpose was to privilege the execution of such agreements but, consistent with the paramount federal policy of the Act to protect employee free choice of bargaining agent, a pre-hire agreement did not acquire the status of a binding collective bargaining contract until and unless the signatory construction union later obtained the majority support of the affected craft employees 434 U.S. at 346. Neither Section 8(f) on its face nor the relevant legislative history contains any support for the view of the Court of Appeals (Pet. App. 34-a) that an attempt to obtain a pre-hire agreement creates a collective bargaining relationship. |! lohe Board's view, affirmed by the Court of Appeals, is inconsistent with its earlier view expressed in Dee Cee Floor Covering, Inc., 232 NLRB 421, 422 (1977) (§8(£) “merely immunizes the parties to such agreements from liability under Section 8(a) (and (b) of the Act"). 35 The same proposition, that a pre-hire agreement creates a collective bargaining relationship subject to judicial enforcement under Section 301 of the Act advanced by the AFL-cI10!2 in Iron Wkrs, was specifically rejected by this Court. 434 U.S. at 352. As Mr. Justice Stewart stated, in dissent:- "an employer may dismiss the [pre-hire] agreement as a nullity.” 434 U.S. at 353. The contrary holding below further ignores the limited justification for pre-hire agreements: to enable employers to submit accurate bids, '° not to lee rief for AFL-CIO Amicus Curiae at 10-13. NLRB v. Iron Wkrs, 434 U.S. 335 (1978). 135, Rep. No. 187, 86th Cong. Ist. Sess. 28 (1959), reprinted I Leg. Hist. of LMRDA 1959 p. 424, 36 confer upon construction unions an unlimited recognition weapon in contravention of Congress’ concurrent overriding purpose in 1959 to proscribe "top down" recognition tactics. The Court of Appeals has improperly converted Section 8(f) into a "top down" recognition mechanism which forfeits the public right of all employees to determine their own terms and conditions of employment. As Judge Learned Hand observed: "Obviously, the authority of such a union cannot extend to any .. . subject matter which the union has not been specifically authorized to ‘adjust'." Douds v. Local 1250, Retail Store Union, 173 F.2d 764, 769 (2d Cir. 1949). Here, it is stipulated that the Unions have not attempted to obtain majority status among Schriver's or Topaz's regular complement of carpentry employees. Accordingly, a pre-hire agreement does not alone create a 37 collective bargaining relationship under the National Labor Relations Act. |4 The Court in Connell also rejected the argument by Plumbers Local 100 that pre-hire agreements create a collective bargaining relationship. This Court ‘4 one distinction between a pre-hire "agreement" and an on-going collective bargaining relationship established under Section 9(a) of the Act is confirmed by statutory comparison. Section 8(f) of the Act does not contain a Single reference to the term "collective bargaining agreement" or "collective bargaining relationship." The language speaks only in terms of "agreements." The first proviso to Section 9(a) (Stat. App. 114-a)in contrast, describes the type of agreement which follows after the establishment of majority status as a "collective bargaining contract or agreement." In Section 9(a), where the word “agreement” is used in close association with “collective bargaining contract" rather than alone, its scope can properly be ascertained from the limiting words which precede it. If Congress had intended the same type of bargaining relationships to be created by both sections, it likely would have used identical terminoloqy in Section 8(f). 38 stated that pre-hire agreements could be challenged as invalid "for lack of a collective-bargaining relationshin." 421 U.S. at 631 n. 10. The Court did not believe that Congress intended unenforceable pre-hire agreements to constitute a collective bargaining relationship because such agreements offer no protection against "top down" recognition tactics. This Court, unlike the Court of Appeals, was fully faithful to the distinction drawn by Congress in 1959 between pre-hire "agreements" and enforceable collective bargaining contracts premised upon majority designation of a bargaining agent. The Unions here forefeited any claim to lawful pre-hire agreements not only by failing to obtain majority support but also by violating Congress' proscription against coercive attempts to obtain employer assent to pre-hire agreements. As this Court noted in NLRB v. Iron Wkrs., supra, 434 U.S. at 348 n. 10: “Congress was careful to make its intention clear 39 7’ > that pre-hire agreements were to be arrived at voluntarily, and no element of coercion was to be admitted into the narrow exception being established to the majority principle" (citing 105 Cong. Rec. 18128 (1959) (remarks of Rep. Barden); H.R. Rep. No. 1147, 86th Cong., ist Sess. 42 (1959)). Even if a pre-hire contract created a collective bargaining relationship, such a relationship may not lawfully be created by picketing and threats of picketing. The contrary view of the Court of Appeals encourages the very type of coercive conduct condemned by Congress in 1959, and undermines and subverts the policy of Section 1 of the Act "to eliminate the causes of certain substantial obstructions to the free flow of commerce. ..." (Stat. App. 111-a). See also Section 201(c) (Stat. App. 114-a). The Court of Appeals has granted construction unions unfettered coercive means to obtain employer recognition in contravention of the Acts freedom of choice principle. This dramatic departure 40 from federal\labor policy requires review by this Court. IV. THE DECISION BELOW THAT THE CONSTRUCTION INDUSTRY PROVISO PROTECTS SUBCONTRACTING CLAUSES REGARDLESS OF SCOPE IS CONTRARY TO THIS COURT'S CONNELL DECISION In Connell, supra, this Court defined the scope of the Section 8(e) construction industry proviso to privilége restrictive subcontracting clauses only if sought in the context of a collective barqaining relationship and applicable to a particular jobsite. 421 U.S. at 635. On its face, Section 102 of MLA applies to all current and future jobsites, even those commenced after expiration of the contract whenever Topaz or Schriver engace in construction and reaardless whether either contractor uses craft employees at the jobsite who could be organized vy a particular’craft union. The restrictions further include jobsites where Topaz, like Connell, performs construction work as a general contractor and employs no employees at the jobsite which any craft union could organize. '> Section 102 of MLA has precisely the improper “top down" organizing effect condemned in Connell. And Schriver is restricted from subcontracting any construction work to non-union companies regardless of whether Schriver employs any craft employees at a particular jobsite. '® ? "S75 August, 1977 Topaz was general contractor at a warehouse project owned by Joseph Von Rathjen Investment Coa. of Los Angeles. on the Montebello townshouse project, Schriver subcontracted the insulation, plaster, drywall, painting, paving, finished carpentry, sheetmetal, heating, masonry and formica work. About 30 percent of this work was contracted to non-union concerns. As applied to Topaz, the effect upon . non-union subcontractors to sign contracts with craft unions regardless of the wishes of their employees is precisely the effect of Local 100's demand upon Connell. There, as here, such unrestricted subcontracting prohibitions impermissably encourage union recognition by unorganized contractors to maintain their elgibility to bid on work made available by Schriver and Topaz-~-the very direct effect upon non-union contractors condemned in Connell. The Court of Appeals ignored this “top down" recognition consequence. This Court must once again, as it did in Connell, correct this misconception of the construction industry proviso. | As ————— A ce the Court of Appeals (Pet, App. 42-a) relied upon “evidence that the pattern of collective bargaining in the construction industry in 1959 included subcontracting agreements such as those present in this case." The Board, however, did not rely upon any such "evidence" in concluding Section Of MLA was not void for overbreadth (Pet. 43 this Court previously held, Congress intended to permit subcontracting restrictions only where fully consistent with the exercise of employee free choice, not to create a loophole to "top down" organizing restrictions. Connell Constr. Co. v. Plumbers Local 100, 421 U.S. at 632. V. THE DECISION BELOW IS CONTRARY TO A PANEL DECISION OF THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT In Pacific Northwest Chapter, etc. v. NLRB, 609 F.2d 1341 (1979), a unanimous App. 60a-110-a). The Court of Appeals acted in disregard of a fundamental rule %€ administrative law by affirming the Roard upon a basis not relied upon by the gency. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69 (1962) The stipulated record before the Court of Appeals demonstrates that restrictive subcontracting provisions were present in less than 10 percent of nationwide construction industry contracts as of 1959. Congress cannot be fairly imputed with an intent to preserve "a pattern” which was in fact the exception rather than the rule. . 44 panel of the Ninth Circuit held that the Section 8(e) construction industry proviso shelters subcontracting restrictions only if demanded in circumstances where the signatory craft union represents the craft employees of the signatory construction employer '® and the clause applies to particular jobsites where employees members of the signatory employer are at work. 609 F.2d at 1347. The Ninth adopted a view of the Section 8(e) construction industry proviso fundamentally ee ee ee eee ee ee 8 oekle & Romero employed carpenters who were members of various Carpenters Locals. The 200 employer members of the Oregon-Columbia Chapter of AGC employ members of Operating Engineers, Local 701. Both Carpenters Locals and Local 701 sought employer agreement to restrictive subcontracting identical in scope to Section 103 of MLA, 45 at odds with the Court below, '? which specifically “refus[ed] to follow the holding of the panel of the Ninth Circuit" (Pet. App. 49-a). It is essential then that the Court accept this opportunity to resolve the existing conflict over the scope of the construction industry proviso between the Ninth and District of Columbia Circuits. Rule 17.1(a) R. Sup. Ct. CONCLUSION For the foregoing reasons, the petition for writ of certiorari to the United States Court of Appeals for the District of Columbia should be granted, eT ts granting the rehearing petition on August 19, 1980, the Ninth Circuit withdrew "the previous three-judge panel assignment.” This order did not withdraw the panel's unanimous opinion. Gerard C. Smetana 500 Marquette Rlidg. 140 S. Dearborn St. Chicago, IL. 60603 (312) 346-4515 William H. DuRoss, Ili Suite 200 119 Pennsylvania Ave., N.W. Washington, D.C. 20006 (202) 659-8697 46 - APPENDIX A >. Notice: This opinion is subject to formal revision before publication in the Federal Peporter or U.S.App.D.C. Reports. Users are requested to not.fy the Clerk of any formal errors in order that corrections may be made before the bound volumes go to press. United States Cut of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT : No. 78-2177 DONALD SCHRIVER, INC., SULLIVAN-KELLEY & ASSOCIATES, TOPAZ CONTRACTING & DEVELOPMENT COMPANY, INC., AND SULLIVAN AND ASSOCIATES, PETITIONERS Wie NATIONAL LABOR RELATIONS BOARD, RESPONDENTS Los ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL, CARPENTERS LOCAL No. 1497, e/ al., INTERVENORS No. 79-1001 NATIONAL LABOR RELATIONS BOARD, PETITIONER . Los ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL, et al... RESPONDENTS DONALD SCHRIVER, INC., ef al., INTERVENORS i Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time. l-a Petition for Review and Application for Enforcement of an order of the National Labor Relations Board Ae —aoeee i taececsy entered Juule Argued June 17, 1980 | - this date Decided October 20, 1980 |—~ Gerard C. Smetana with whom William H. DuRoss, III was on the brief for Schriver Inc,, Petitioner in No. 78- 2177 and Intervenor in No. 79-1001. John H. Ferguson, Attorney, National Labor Relations Board with whom William A, Lubbers, General Counsel, John E. Higgins, Deputy General Counsel, Robert E. Allen, Acting Associate General Counsel, Elliott Moore, Deputy Associate General Counsel and William M. Bernstein, Attorney, National Labor Relations Board were on the brief for Respondent in No. 78-2177. Laurence J. Cohen with whom William Chapman, George Kaufmann, Robert D. Kurnick and Laurence Gold were on the brief for Los Angeles Building and Construc- tion Trades Council, Intervenor in No. 78-2177 and Re- spondent in No. 79-1001. Leo Geffner for Carpenters Local No. 1497, et al., In- tervenors in 78-2177 and Respondents in No. 79-1001. Vincent J. Apruzzese, Stephen A. Bokat, Lawrence B. Kraus, and Francis A. Mastro were on the brief for the Chamber of Commerce of the United States, Amicus Curiae in Nos. 78-2177 and 79-1001. Kenneth C. McGuiness, Robert E. Williams and Daniel R. Levinson were on the brief for Air Conditioning & Re- frigeration Institute, et al., Amicus Curiae in Nos. 78- 2177 and 79-1001. Robert J. Hickey and Peter G. Kilgore were on the brief for Associated General Contractors of America Inc., Amicus Curiae in Nos. 78-2177 and 79-1001. TABLE OF CONTENTS Page I. FACTUAL AND PROCEDURAL BACK- CIEE es 6 vhs cb be Pie Ce gee Obina s sels Mees om 6 A. The Facts Involving Donald OTN OE BIG i a le taedc css asks 7 B. The Facts Involving Topaz Con- tracting and Developing Co., Inc. .... 1] C. Proceedings Before the Board ...... 13 Il. STATUTORY FRAMEWORK AND THE SUPREME COURT DECISION IN CON- SOUS IAEE si. Os Said -49. Second, the Ninth Circuit concluded that it is not en- tlrely clear that the construction industry ;roviso was intended to preserve the existing state of the law in the industry, since the proviso added a limitation of “jobsite work” that did not exist prior to 1959. Jd. at 1349. Finally. finding the legislative histury to be inconclusive, the court considered the purpose of the provir» and concluded that the sole purpose was to avoid wMen-nenurion jobsite friction. 7d. at 1249-50. Acvordingly. the court limited the permissible scope of the proviso to union- nonunion confliets on the jobsite. We believe that the court has misapplied the legislative his- tory of &&(e). Regardless of whether or not Sand Dour conelu- sively resolved the legality of subcontracting agreements, no court had ever held such agreements to be unlawful prior to 1459. or had in any wa) narrowed their -cope. As developed above, we believe that Congress perceived in 19359 that deci- sions of the Board and the courts had created “loopholes” by which secondary agreements Voluntarily entered were lawful, and enacted $S(e) to change that result outside the construction and apparel industries. As stated in Brown ¢. General Services Administration, 425 U.S. 820, 828 C976), “the relevant inquiry is not whether Congress correctly perceived the then state of 49-a B. The Relevance of Physical Presence at the Jobsite There is an additional and more refined argument of the employers in this case that must also be addressed, We have concluded that subcontracting agreements exist in the construction industry for at least two separate rea- sons. First, subcontracting agreements are allowed so that unions may protect established contract standards against the threat posed by the prevalence of subcontracting and the short term nature of employment in the construction industry. Second, once union workers are employed on a jobsite, subcontracting agreements are allowed so that those workers will not be forced to work alongside nonun- ion workers on the same jobsite. The emplovers in this case have focused most of their attention on the first of these major concerns, The em- plovers also have argued, however, that subcontracting avreements should not be allowed to extend beyond the Dine When signatory union workers are physically present on the jobsite, In other words, the argument runs, even the Jaw, but rather what its perception of the state of the law Wits.” In addition, to us it is beyond dispute that Congress intended te leave the current state of the construction industry un- Changed, concerning the subcontracting of work to be done at the jobsite. The fact that Congress limited the proviso to jobsite work does not in any way affect the legality or scope of subecon- tracting agreements that do in fact concern work completed at the jobsite. Most importantly, we believe that the Ninth Circuit panel de- cision defined the purpose of the construction industry proviso to $S(e) too narrowly. Although the elimination of jobsite frie- tion is indeed a legitimate concern, we believe that: subcon- tracting agreements existed and continue to exist in the con- struction industry as a means of protecting contract standards, a goal made difficult as a result of the prevalence of syhcon- tracting in that industry and the temporary and transitory Na- ture of employment. 50-a though the signatory union is utilized on the jobsite, thus satisfying the first major concern above, there are times when subcontracted work is performed and the signatory craft is not simultaneously working on the jobsite and, thus, at such times, the second major concern above is not applicable. We decline to accept this argument in the present case. We believe that to do so would be overly formalistic and once again ignore the realities of employment situations on a construction jobsite. It is firmly established, and not here contested, that at the very least, subcontracting agreements are allowed in the construction industry because of the “close community of interests” existing on a construction site and “the fric- tions that may arise” when union workers are employed along with nonunion workers on the same project. See Connell, supra, 421 U.S. at 630. We do not believe these statements to mean, however, that problems arise solely when union workers are forced to work “elbow-to-elbow” with other nonunion workers. More realistically, “friction” may arise when two sets of workers are employed on a common construction site under substantially different employment conditions. It is true that, nominally, different crafts on the project are likely to have separate employers. While the Supreme Court established, in NLRB v. Denecr Building and Construction Trades Connell, 341 U.S. 675 (1951), that these employers on a common jobsite remain separate and distinct, Congress recognized in $8(e) that there is a very special relationship between them. The entire thrust of. the proviso to §$8(e) is that craft work on a construction site cannot be treated as isolated and removed from other craft work. There is simply nothing in the legislative history of the proviso to §S(e), or in practices in the construction indus- try prior to 1959, to suggest the limitation urged by the emplovers here. Accordingly, we affirm the position ef the A”? ae ales Board and hold that subcontracting agreements need not be so limited. In doing so, however, we wish to emphasize that it is inipossible for this court to anticipate every pos- sible variation that may arise concerning subcontracting arrangements on a construction jobsite. There may be situations where the relationship between craft work on a jobsite is so remote, so removed in time of performance, that one craft would have no interest in how work is per- formed by another craft. While we do not believe the sub- contracting agreements in the present case to be beyond the scope of the proviso to §8(e), we leave the final limits of the protection afforded by the proviso to be decided in future cases, where specific factual events will illuminate problems and issues in a manner much clearer than that presented by the very general facts of this case. C. The Legality of Union-Speeitic Clauses Finally, the employers argue, in a somewhat cursory fushion, that the subcontracting agreements at issue here are bevond the scope of the proviso to $S8(¢) because the avreements permit subcontracting only with particular anions affiliated with the Trades Council. The Supreme Court in Cornell noted that the subcon- Lracting agreement at issue in that case prohibited subcon- tracting to any firm that did not have an agrecinent with the specific union local. giving the union “complete control over subcontract work offered by general contractors that had signed [the subcontracting] agreements.” 421 U.S. at 624. The Court went on to state: Such control could result in significant adverse effects on the market and on consumers—effects unrelated to the union's legitimate goals of organizing workers and standardizing working conditions. Id. Since the Court held that the subcontracting agree- ments in Connell were not protected by the proviso to $8(e) because not sought in the context of a collective bar- gaining relationship, the Court did not resolve whether 52-a union-specific subcontracting agreements are outside the scope of the proviso. Neither the employers nor the amici point to any case that has accepted this limitation on the proviso. The Board in fact has consistently upheld the validity of union- specific agreements. As recognized by the Board in Woelke & Romero Framing, supra, 239 N.L.R.B, 241 (1978): Since the enactment of the 1959 amendments to the Act, the Board and courts have consistently upheld contract provisions between employers and unions in the construction industry which permit the employer to subcontract work to be performed at the site of the construction only to subcontractors who are signatory to contracts either with a particular union or with unions having jurisdiction over the type of work in- volved. Id. at 247.9 Although the panel of the Ninth Circuit in Paechie Northwest, supra, reversed much of Woelke & Romero Framing and placed other severe restrictions on the scope of the construction industry proviso, the panel opinion nevertheless explicitly refused to limit the proviso to $S(e) to subcontracting agreements that are not “par- ticular union” agreements. Sec 609 F.2d at 1350 n.8. We agree with the view that union-specifie subcon- iracting agreements are within the scope of the construc- tion industry proviso to §8(e). Although we are not called upon to weigh “the union's legitimate goals of organizing workers and, standardizing working conditions” against any “significant adverse effects on the market and on con- sumers,” we believe that in this case these legitimate union goals are in fact sufficient to justify union-specific agreements. We once again note that there is nothing in the literal wording of the statute sugyesting the limitation that the employers here seek. Nor is there any overriding 33 See also Carpenters Local 15, 240 N.1.R.B. No, 92 (Jan. 25, 1979). 53-a congressional purpose that would be undermined if §8(e) is construed to permit union-specific agreements, such as that which caused the Supreme Court to avoid the literal language of the Act in Connell. Instead, we believe that the legislative history supports the proposition that subcontracting agreements in the con- struction industry may be union-specific. As fully de- veloped above, the principal concern of Congress in enacting the construction industry proviso was to preserve the pattern and practice of bargaining in the construction industry. There is evidence that nearly all subcontracting agreements in existence in the construction industry in 1959 were in fact union-specific agreements. As described above, a comprehensive study was con- ducted of subcontracting agreements in existence at the time of the 1959 amendments to the NLRA. Lunden, Subcontracting Agreeme nts iM Mayor Contracts, 84 MONTHLY LABOR REVIEW 479 (part I), 715 (part IJ) (1961). That study included a survey of major contracts in the construction industry, 83 of which contained subcon- tracting agreements. The findings of the survey are again relevant here. As stated by the study: The single most frequent requirement, found in more than 50 major contracts, called for the subcontractor to comply with all the terms and conditions of the prime employer's agreement. Id. at 715. In Local 437, IBEW, 180 N.L.R.B. 420 (1969), the Board specifically established that such clauses permit subcontracting only to emplovers who have recognized the signatory union, since the phrase “complying with the terms of this agreement” covers union recognition as well as all other terms. 180 N.L.R.B. at 420. Accord, Building and Construction Trades Council «. NLRB, 328 F.2d 340 (D.C. Cir. 1964). The study also noted: Closely allied to this approach was a second large group of construction industry contracts which re- quired the subcontractor to be under agreement with the same local, with another local of the same interna- tional union, with a recognized building trades union, or with an AFL-CIO affiliate. 84 MONTHLY LABOR REVIEW at 716. Union-specifie sub- contracting agreements were clearly common in the con- struction industry at the time of the enactment of §8(e). We also believe that union-specifiec subcontracting agreements are consistent with the purposes of §8(e). As fully developed above, the purpose of the construction in- dustry proviso to §8(e) is not simply to permit a union on a jobsite to ensure that only “union” workers are present on the site, and thus avoid union-nonunion “friction.” 3? It is through subcontracting agreements that a union may pro- tect established contract standards in the construction in- dustry. It is through subcontracting ayreements that a unin may guarantee payments to particular established pension funds. We believe that restricting the protection of the proviso to $Sle) to “generic” union subcontractors is inconsistent with these legitimate union goals. Absent suine compelling reason such as that present in Connell, we refuse to ignore the literal wording of the statute and adopt such a restriction. “2 As recognized by the ALJ in Carjauters Local 15, 240 N.L.R.B. No. 52 at 16 (Jan. 25, 1979): “To cunstrue the previso as authorizing only such agreements as limit subcontracting to unienized companies would also make a mockery of the protec- tien afforded thereby, for it could be circumvented by any group of employees which chose te sivle themselves ‘union. Even if avoiding “friction” on the jobsite was the sole cunsid- eration, there is no guarantee that there is less friction on a jobsite when members of competing unions are forced to work alongside each other, than when unien and nonunion workers are employed on the same jobsite. See Pacitic Northwest, supra, at 1390.8; Carpe: ters Local 15, supra, at 16.17. *3 We recognize that one implication of this holding is that a 55-a D. Deference to the Board For all of the reasons presented above, we believe that the Board’s interpretation of the scope of the construction industry proviso to §&(e) is entirely consistent with the legislative history of that section and the purposes for which it was enacted. In closing, we note that in matters of statutory construction, we are bound to give cunsider- able deference to the interpretation of the statute by the Board. NLRB v. Brvadcast Employees and Technicians Local 31, No. 78-2045, slip op. at 11 (D.C. Cir. July 23, 1980). As stated by the Supreme Court in Iron Workers: Courts may prefer a different application of the rel- evant sections, but “|[t}he function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Con- gress committed primarily to the National Laber Re- lations Board, subject to limited judicial review.” NLRB ev. Truck Deicers, 353 U.S. 87, 96 (1957): NLRB - Tesaranes Ag nts, 36] U.S. 477, 499 (1960). 184 U.S. S35 at 350 (1978). We certainly cannot say. as was said in American Ship Bu lding Co. vr. NLRB, 330 U.S. 300. 318 (1965), that the position taken by the Board is “fundamentally inconsistent with the! structure of the Act and the function of the sections relied upen.” subcontractor signatory to a contract with a competing onion may be frozen out of work with a contractor whe signs a unien- specific subcuntracting agreement with another union. Certainly this consideration must be balanced against the concerns ex- pressed above. In doing so. however, we were influenced by a finding of an ALJ that was affirmed by the Board in Carpenters Local 15, supra. In aphelding unien-specifie subcontracting agreements and rejecting this preblem, the ALJ noted: “|The problem is more theeretical than real. Except for some slight overlapping of functions here and there. there is usually only a single union that represents each ) articular craft in the con- struction industry.” Jd. at 17. There is nothing in the record of this case to suggest otherwise. 2 56-a In summary, we hold that the subcontracting agree- ments in the present case are within the scope of the con- struction industry proviso to §8(e). Accordingly, the pres- sure exerted to secure the agreements did not violate §8(b)(4)(A). V, THE SELF-ENFORCEMENT FEATURE OF THE AGREEMENTS One final issue remains. Although the Board did not find that the subcontracting agreements violated §8(e) for any of the reasons discussed above, the Board did conclude that the agreements lost the protection of §S8(e) by rezson of the fact that section 306 of the Master Labor Ayree- ment authurized the unions to take “any” action to enforce “any” settlement or decision obtained in the grievance and arbitration procedure.*4 The Board found that this provi- sion of the contract authorized economic action by the unions to enforce the subcontracting restrictions. 239 N.L.R.B. 264, at 270-71.%° Since subcontracting agree- ments may not be enforced through economic action, the Board ordered the unions to cease and desist from jres- suring the contractors to enter into an agreement that is prohibited by $8(¢) by reason of self-enforceement provi- sions. /d. at 271-72. The unions here argue that the contract does not au- thurize self-help measures to enforce the subcontracting agreements. Moreover, the unions contend that there has heen no showing of an intent at any time to use the “self- help” provision to justify econeumic action to enforce the -ubcontracting agreements, and that the Board should not engage in “speculation” that the provision will be utilized 4 Section 306 of the Master Labour Agreement is set forth in full, in the text of the opinion in part I.A. % Two members of the Board dissented from this aspect of the Board's decision. 239 N.L.R.B. 264, at 270 nn.26 & 28. 57-a in an unlawful manner. Accordingly, the unions request that the cease and desist order be vacated by this court.%6 We reject the argument advanced by the unions and enforce the order of the Board. As all parties indeed admit, subcontracting agreements lose the protection of the construction industry proviso if they contain terms that sanction employee strikes or other self-help measures to enforce the agreement. Bricklayers Local 2 v. NLRB, 562 F.2d 775, 787-88 (D.C. Cir. 1977), Section 306 of the Master Labor Agreement applies to any settlement or de- cision of the grievance-arbitration process, and thus would appear to include a decision concerning the subcontracting agreements within its coverage. We do not believe that the unions’ mere disclaimer of intent to utilize that provi- sion to enforce the subcontracting agreements is sufficient to cure this defect in the contract.3? : As a result, we agree that the subcontracting agree- ments in the present case are not protected by the con- struction industry proviso to $S(e). For the reason ad- 36 The unions do not urge this position very strongly. At oral argument, one union counsel conceded this “self-help” aspect of the case was touched in the brief “in a very minor, minor way,” and that the unions “are quite content with the Board order.” Counse! also noted in oral argument that the contract bas al- ready been amended to clarify the problem and now expressly prohibits the use of economic action to enforce the subcontract- ing agreements. 37 We note that a similar problem concerning a different as- pect of the construction industry proviso was presented to the Ninth Circuit in Ojn rating Engineers Local 701 v. NLRB, 57 F.2d 541 (9th Cir. 1978). As resolved by that court: “In the Union's view, while the clause states that it covers work per- formed ‘at or near’ the jobsite, the clause has actually been in- ierpreted to mean ‘on’ the jobsite, and as so interpreted, the clause falls within the proviso. We find this argument unpersua- -sive. The clause must be considered to mean what it says.” /d. at S42, 58-a vanced by the Board, we order the unions to comply with all aspects of the Board’s order. VI. CONCLUSION . In No. 78-2177, we dismiss the petition of Donald Schriver, Inc., Sullivan-Kelley & Associates, Topaz Con- tracting & Development Company, Inc., and Sullivan and Associates to review and modify the decision of the Na- tional Labor Relations Board reported at 239 N.L.R.B. 264 (1978). In No. 79-1001, we enforce the order of the Board issued against Local 1497, United Brotherhood of Carpenters and Joiners of America; Local 1752, United Brotherhood of Carpenters and Joiners of America; the Los Angeles Building and Construction Traces Council; and the Los Angeles County District Council of Carpen- ters in that same proceeding. So ordered. 59-a wad APPENDIX B DECISION AND ORDER Upon appropriate charges! duly served on Respondents, the General Counsel of the National Labor Relations Board, acting through the Regional Director for Region 21, on January 11, 1977, issued complaint and notice of hearing in the cases involving Schriver, alleging that Respondent Trades Council and Resnondent Local 1497 had violated Section 8(¢) and Section 8(b)(4)(ii)(A) of the Act, and on March 23, 1978, issued complaint and notice of hearing in the case involvina Topaz, alleging that Respondent District Council and Respondent Local 1752 had violated Section 8(b)(4)(i) and (ii)(A) of the Avwt. Respondents filed answers OE Er me \The charges in Cases 21-CC-1680 and 21-CE-144, involving the employer Donald Schriver, Inc. (herein Schriver), were filed by Sullivan-Kellev & Associates (herein Charqing Party), against Los Angeles Ruilding and Construction Trades Council (herein Respondent Trades Council) and Local Union No. 1497, United Rrotherhood of Carpenters and Joiners of America (herein Respondent Local 1497). The oriaqinal and amended charges involving the employer 6-3 denying the commission of any unfair labor practices. Thereafter, General Counsel consolidated the cases involving Schriver and Topaz, and on July 6, 1977, issued an amended consolidated complaint and amended notice of hearing in the cases, alleging the same unfair labor practices covered in the earlier separate complaints. On August 30 and 31, 1977, the parties in the cases, for the purpose of this proceeding only, entered into a stipulation of facts, including extensive exhibits, and a motion to transfer the proceedings to the Board for findings of fact, conclusions of law, and Order directly by the Board.2 On November 4, 1977, the Board accepted the Topaz Contracting & Development Co., Inc. (herein Topaz), were filed by Sullivan and Associates (herein Charging Party) on March 9 and 15, 1977, against Los Angeles County District Council of Carpenters (herein Respondent District Council) and Local Union No. 1752, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (herein Respondent Local 1752). 2The motion stated, in part: The parties agree that the charges, the Complaint and Notice of Hearing, the answer 61-a stipulation and transferred the proceedings to the Board. Thereafter, the parties filed briefs with the Board. Briefs amici curiae were filed by the Chamber of Commerce of the United States of America, the American Federation of Labor and Congress of Industrial Organizations, and the Building and Construction Trades Department, AFL-CIO, Oral argument in the cases, and in — to the complaint, and the Stipulation of Facts, including the exhibits attached thereto, constitute the entire record in these proceedings, and that no Oral testimony is necessary or desired by any of the parties. The parties further stipulate that they wiave a hearing before an Administrative Law Judge, the making of findings of fact and conclusions of law by an Administrative Law Judge, and the issuance of an Administrative Law Judge's decision, and desire to submit this case for findings of fact, conclusions of law, and order directly to the Roard, 62-a the cases, and in related cases, 2 was held before the Board in Washington, D.C., On February 23, 1978. The parties presented arguments as did the amici curiae named above and Laborers' International Union of North America, AFL-CIO. The Board has considered the entire record stipulated by the parties and the briefs and oral arguments of the parties and the amici curiae, and hereby makes the following findings and conclusions: 3colorado Building & Construction Trades Council (Utilities Services Engineering, Inc.), 239 NLRB No. 47 (1978); Carpenters Local No. 944, United Brotherhood of Carpenters and Joiners of America, AFL-CIO: and Carpenters Local No. 235, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Woelke & Romero Framing, Inc.), 239 NLRB No. 40 (1978); and International Union of Operating Engineers, Local No. 701, AFL-CIO; Oregon-Columbia Chapter, the Associated General Contractors of America, Inc. (Pacific Northwest Chapter of the Associated Builders & Contractors Inc.), 239 NLRB No. 43 (1978). 63-a I. The Businesses of the Employers At all times material herein, Donald Schriver, Inc., has been a builder- developer and general contractor in the building and construction industry in southern California, with a business address at 1605 Whittier Boulevard, Montebellow, California. In the normal course and conduct of its business opera- tions, Schriver annually purchases and receives good and supplies valued in ex- cess of $50,000 from suppliers located within the State of California which, in turn, purchase and receive those same goods and supplies directly from suppliers located outside the State of California. The parties stipulated and we find that Schriver is, and has been at all times material herein, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) and Section 8(e) of the Act and a person engaged in commerce Or in an industry affecting commerce within the meaning of Section 8(b)(4)(ii)(A) of the Act. Topaz Contracting & Development Co., Inc., is, and has been since January 1, 1977, a California corporation engagéd as a framing and carpentry contractor and 64-a builder-developer in the building and construction industry in southern California, with offices located in Norwalk, California. In the normal course and conduct of its business operations, Topaz annually purchases and receives goods and supplies valued in excess of $50,000 from suppliers located within the State of California which, in turn, purchase and receive those same goods and supplies directly from suppliers located outside the State of California. The parties stipulated and we find that Topaz is, and has been at all times material herein, an employer engaged in commerce and in a business affecting com- merce within the meaning of Section 2(6) and (7) of the Act and a person engaged in commerce or in an industry affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(A) of the Act. II. The Labor Organizations Involved The parties stipulated and we find that Respondent Trades Council, Respondent Local 1497, Respondent District Council, and Respondent Local 1752 are, and at all times material herein have been, labor organizations within the meaning of Section 2(5) and Section 8(b) and (e) of the Act. 65-a III. The Alleged Unfair Labor Practices A. The Stipulated Facts 1. The case involving Schriver In June 1972 Schriver was engaged as owner-builder in constructing a four-unit apartment complex in Montebellow, California, and employed roofers and/or carpenters working within the craft jurisdiction of Respondent District Council, and also a laborer. On or about June 12, 1972, Schriver entered into "Articles of Agreement" (herein Agree- ment) with Respondent Trades Council. The Agreement incorporated by reference? and bound Schriver to the 4art. II of the Agreement States: "The Employer, Developer and/or Owner-Builder agrees to abide by all of the terms and conditions of the current agreements of the respective crafts employed, including wages, hours, working conditions, health and welfare benefits, pension benefits, and other benefits, and further including any amendments, modifications, extensions, changes, supplements and renewals of said agreements negotiated by the parties thereto." 66-a ° terms and conditions of employment of the effective master labor agreeement (herein MLA) between various employer associa- tions and Respondent District Council, with which Respondent Locals 1752 and 1497 are affiliated. Both the Agreement and the 1974 MLA contained provisions restricting subcontracting and provisions concerning economic action by the labor Organization party to the contract. > By its terms the Agreement was to remain in effect for a 1-year period commencing on or about June 12, 1972, with automatic yearly renewals thereafter, subject to specified notice of terminatin by either party. Schriver did not give any notice of termination, and at all times material was signatory to the Agreement. At no time before or after Schriver Signed the Agreement did its employees designate the Repondent Trades Council or any affiliate or Respondent Local 1497 as their collective-bargaining representa- tive. After signing the Agreement, These provisions, dis- cussed hereafter, are set forth in Appendix I to this Decision and Order, 67-a Schriver did not require the subcontrac- tors on its jobsites to be union subcontractors. Schriver completed the Montebellow apartment complex project in 1972, and from 1972 to May 1975, as owner-builder, completed several large apartment proj- ects and some "small" jobs, All work on Schriver's projects was subcontracted to other companies except for the work of carpenters and one laborer. At no time between the signing of the Agreement in 1972 and May 1975 did any union represen- tative protest to Schriver's management the failure to abide by the Agreement. © In May 1975 Schriver was engaged as owner-builder in the construction of a Montebellow townhouse project. It employed framer-carpenters who performed work within the craft jurisdiction of Respondent Local 1497, but who were not members of, nor represented by, Respond- ent Local 1497. On the townhouse project Schriver contracted with various subcon- tractors who were on the project at 6There is no indication that Repondents had knowledge of Schriver's projects. 68-a different times.’ As a result some crafts worked alone on the project at times, while at other times many different crafts worked on the project at the same time. About 70 percent of the subcontractors were signatory to contracts with labor organizations covering the crafts involved. On May 22, 1975, Jim Sogoian, a business representative of Respondent Local 1497,8 approached Schriver's superintendent, Martin, at the townhouse jobsite, and asked whether the carpenters on the job were “union.” Martin replied that they were not. Sogoian then stated that his Union would picket the jobsite if Schriver did not sign the Carpenters 7The subcontractors performed the following work with their employees: insulation, plaster, drywall, painting, paving, finished carpentry, cabinets, floors, heating, sheet metal, masonry, formica, and finishing of exterice stairways and balconies. 8The parties stipulated that at all times material herein Sogoian has been an agent of Respondent Local 1497 within the meaning Sec. 2(13) of the Act. 69-a agreement. The following day, at Martin's request, Sogoian brought to the jobsite a copy of the Carpenters contract--the MLA between Southern California General Contractors. and United Brotherhood of Carpenters and Joiners of America, effective for an initial term from July 7, 1974, to June 15, 1977+-and again stated that the Union would picket for the purpose of having the Carpenters agreement signed. ; During the next week, Sogoian again visited the jobsite and informed Schriver'‘s owner, Donald Schriver, that he was legally obligated to sign the Carpenters agreement. Sogoian declared that the Agreement which Schriver. had signed in 1972 was still in effect since Schriver had never attempted to terminate it, and, under that Agreement, Schriver was bound to the Carpenters contract. A day or two later, Donald Schriver telephoned the office of Respondent Trades Council and spoke with Mathis, its business representative.?2 Mathis confirmed what Sogoian had said r 9The parties stipulated that at all times material herein Mathis has been an agent of Respondent Trades Council within the meaning of Sec. 2(13) of the Act. 70-a a concerning Schriver's legal obligation to sign the Carpenters contract. Mathis then stated that the Carpenters Union would picket the jobsite and take legal action if Schriver did not sign the Carpenters agreement. Donald Schriver attempted to negotiate different terms to the Agreement with Respondent Trades Council, but his request to negotiate was denied, and Mathis again demanded that Schriver sign the standard Carpenters agreement. On May 28, 1975, an agent of Respondent Trades Council, at the direc- tion of Mathis, sent a telegram to Donald Schriver which, in relevant part, read: You subcontracted carpentry: work to contractors who do not have an executed agreement with any union affiliated with the council. This action on your part violates Article IV of your agreement with the council dated June 12, 1972. Unless the above-mentioned contractors are immediately removed from the job, we have been authorized to sue you for an injunction and damages. Respondent did not file a lawsuit against Schriver to enforce the Agreement, and . Respondents have not engaged in any picketing against Schriver. 7i-a 2. The Case Involving Topaz Topaz, which was formed in January 1977, began work in February 1977 as a framing subcontractor, under contract with the owner-builder, on a ‘toynhouse project in Claremont, California. '° In February and March 1977, it employed about 30 to 50 employees engaged in laboring and carpentry work. All crafts on the Claremont project were "union" except Topaz' employees. Topaz has not been a party to any labor agreement with any labor organization. On or about February 22, 1977, the day after Topaz began work at Claremont, Larry Ruiz, a business representative of Respondent Local 1752," spoke to Topaz’ construction foreman, Tackett. Ruiz asked why Topaz was not signed up with the Union and said that the Union wou’? have to picket if Topaz did not One the time of its work at the Claremont project, Topaz was also working as a framing contractor on two other projects. “Vohe parties stipulated that at all times material herein Larry Ruiz has been an agent of Respondent Local 1752 within the meaning of Sec. 2(13) of the Act. : 72-a sign a contract with the Union. Later that same day, Mike Sullivan, labor relations consultant for Topaz, arrived at the jobsite while Ruiz was‘ still there and asked Ruiz what contract he had to sign. Sullivan asked Ruiz if he meant the regular Carpenters contract with the Master Labor Agreement, and Ruiz replied, "Yes, and that is the only contract that I can sign with Topaz." Sullivan replied that the contract was illegal but that he was willing to sign the contract for the Claremont townhouse jobsite only, if the union would accept all the men working for Topaz and stop interfering with the owner-builders. Ruiz replied that he could not accept Sullivan's conditions and could not sign any contract other than the Master Labor Agreement. On February 28, 1977, at a jobsite meeting with Ruiz and the attorney for the owner-builder of the Claremont townhouse project, Joe Eickholt, business representative of Respondent District Council, '* informed Sullivan that l2ahe parties stipulated that at all times material herein Eickholt has been an agent of Respondent District Council within the meaning of Sec. 2(13) of the Act. 73-a the Union could not accept a contract limited to the Claremont project. Thereafter, in support of their contract demand, Respondent Local 1752 and Respondent District Council picketed the Claremont construction project from March 4 to 14, 1977, with signs which read: TOPAZ CONTRACTING & DEV. UNFAIR TO . CARPENTERS LOCAL 1752 AFFILIATED WITH THE LOS ANGELES BUILDING AND CONSTRUCTION TRADE COUNCIL NO AGREEMENT At the time of picketing at the Claremont project, Topaz had 12 employees present on the project. At that time other employers working on the project included the plumbing subcontractor, employing plumbers and helpers, and a brick subcon- tractor, employing brick masons and helpers. B. The Issues and Contentions The complaint involving Schriver alleges that Respondent violated Section 8(e) by engaging in threatening conduct against Schriver which constituted a reentering or reaffirmation of the Agreement and the MLA. The complaint 74-a also alleges that Respondents violated Section 8(b)(4)(ii)(A) by threatening conduct which had an object of requiring Schriver to reenter the Agreement and the mba. |? The complaint involving Topaz alleges that Respondents violated Section 8(b)(4)(i) and (ii)(A) by picketing Topaz with an object of requiring the Company to enter into the MLA. The parties have stipulated that the alleged threats and picketing by Respondents did in fact occur; and the stipulated facts support the conclusion that an object of the threats and picketing was to require Schriver and Topaz to reaffirm or adopt the 3 subcontracting provisions alleged to be violative of Section 8(e). Therefore, the basic issue presented in these cases '3cpecifically, the complaint alleges that Respondent Local 1497 threatened to picket with an object of requiring Schriver to reenter or reaffirm the MLA, including Art. I, Sec. 103, 103.1, 103.2, and 103.3, and Art. III, Sec. 306; and Respondent Trades Council threatened to picket and to institute legal proceedings if Schriver did not comply with the Agreement, including Art. IV. 75-a. is whether the subcontracting provisions of the MLA and article IV of the Agreement are secondary within the meaning of Section 8(e) and, if so, whether they are protected by the construction industry proviso to Section 8(e). The General Counsel argues that the provisions in issue restrict subcontracting within the meaning of Section 8(e) and are not privileqded by the proviso in light of the Supreme Court's view of the proviso set out in Connell Construction Co., Inc. v. Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616 (1975). He further argues that, in any event, the provisions are not privileged because of "self-enforcement” measures in the contracts. Tt is the General Counsel's position that, in light of the Connell decision, the construction industry proviso privileges subcontracting provisions otherwise contrary to Section 8(e), only if all the following conditions are met: there is a valid collective-bargaining relationship between the Signatory employer and the labor organization; the subcontracting restrictions are limited to sites where the employer has employees represented by the labor organization and to times when the employees are present; and the sub-contracting provisions do not require 76-a that subcontractors be parties to an agreement with a particular union rather than a union in the generic sense. Respondents disagree with the General Counsel's interpretation of the Connell decision, and contend that the subcontracting provisions in dispute are protected by the proviso, C. Discussion and Conclusions Section 8(e) of the Act 4 declares it an unfair labor practice for V4sec, 8(e) reads: It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doinca business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforceable and void: Provided, that nothing in this subsection (e) shall apply to an agreement between a labor organization and an employer in the construction industry 7T7-a a labor organization and an employer to enter into a contract whereby the employer agrees to refrain from dealing in the products of another employer or to cease doing business with any other person. Qualifying Section 8(e) is the construction industry proviso which exempts from application of that section relating to the contractina or subcontracting of work to be done at the site of the construction, ‘alteration, painting, or repair of a building, structure, or other work: Provided further, That for the purposes of this subsection (e) and section 8(b)(4)(B) the terms “any employer,” "any person engaged in commerce or in industry affecting commerce," and “any person” when used in relation to the terms “any other producer, processor, or manufacturer,” “any other employer," or "any other person" shall not include persons in the relation of a jobber, manufacturer, contractor, or subcontractor working on the goods Or premises of the jobber or manufacturer or performing parts of an integrated process of production in the apparel and clothing industry: Provided further, That nothing in this Act shall prohibit the enforcement of any agreement which is within the foregoing exception. 78-a any agreement between a labor organiza- tion and an employer in the construction industry relating to the contracting of work to be done at a construction site. The subcontracting provisions placed in issue by the General Counsel are plainly "union signatory” clausés which the Board has found to be secondary in thrust because they are directed at furthering general union objectives and regulating labor policies of employers other than the employer party to the contract. '> Thus, article IV of the Agreement requires the contracting employer to subcontract all specified jobsite work "to a person, firm, partner- ship or corporation that is party to an executed current Agreement with the appropriate Union having work and territorial jurisdiction, affiliated with the Council in which area the work is performed.” And Article I Section 103, of the 1974 MLA, requires that the contracting employer "or any of his sub- contractors on the jobsite will not contract or subcontract work to be done 3s ee Local 437, International | Brotherhood of Electrical Workers AFL-CIO (Dimeo Construction Co.), 180 _ NLRB ); Woelke & Romero Framing, Inc., supra. 719-a at the site of construction... except to a person, firm or corporation party to an appropriate, current labor agreement with the appropriate Union, or subordinate body, affiliated with the Building and Construction Trades Department, AFL-CIO, or with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or an affiliate-thereof."!° Accordingly, we find that these provisions are secondary restrictions which are proscribed by Section 8(e) unless they are protected by the construction industry proviso. We consider then whether the proviso privileges the restrictions. It is clear that the subcontractina agreements in issue meet the express 16sec, 103.1 defines a subcontractor and requires that work be performed at the appropriate hourly rate and be reported to trust funds as required by the contract. Sec. 103.2 requires that all work performed by contractor or subcontractors be done in accordance with “each and all of the terms and provsions" of the contract. Sec. 103.3 requires that, if contractors Or subcontractors shall subcontract | jobsite work, provision shall be made in writing for compliance by subcontractors with the full terms of the contract. 80-a requirements of the proviso that they be with employers in the construction industry and be confined to jobsite work. Question is raised, however, as to whether the protection of the proviso is applicable to the agreements in light of the Connell decision. We have considered the significance of that decision in interpreting the proviso in the several cases issued today. In Woelke & Romero, supra, we stated that, consistent with Connell, the construction industry proviso to Section 8(e) permits union signatory subcontracting clauses in the context of a collective-bargaining relationship, and possibly even without such a relationship if the clauses are aimed at avoiding the Denver Building Trades problem. As the disputed subcon- tracting agreement in Woelke & Romero was in the context of a collective-bargaining relationship, we found it privileged by the proviso. In the instant proceeding, as discussed below, we also conclude that the disputed subcontracting clauses were sought in the context of collective- bargaining relationships and, hence, were within the protection of the proviso. Here, however, unlike the Woelke & Romero case where the collective-bargaining relationship was not challenged by the Ries parties, the sufficiency of the relationships between the Employers and the Respondent Unions is in issue. Determination of the issue requires an examination of the facts concerning the relationships and a consideration of what type of collective-bargaining relationship is needed to invoke application of proviso protection to subcontracting agreements. An examination of the facts shows that Schriver entered into the Agreement with. Respondent Trades Council in 1972, and the Agreement, which incorporated the applicable MLA, automatically renewed from year to year in the absence of notice to terminate. In 1975 when Respondent Trades Council and Respondent Local 1497 demanded that Schriver reaffirm the Agreement by signing the current 1974 MLA, Schriver refused. It does not appear, however, that Schriver repudiated its bargaining relationship with the Unions. Rather it asked to negotiate different terms. Respondent Trades Council refused to negotiate separate terms and again demanded that Schriver sign the 1974 MLA. Accordingly, we conclude that Schriver had an ongoing collective-bargaining relationship with Respondent Trades Council and Respondent Local 1497, and the disputed subcontract- ing provisions were sought in the context of this relationship, ; 82-a In the case of Topaz, no preexisting bargaining relationship existed when the Unions demanded that Topaz sign the 1947 MLA. But it is clear the subcontracting provisions involved were sought in con- templation of a complete bargaining relationship on behalf of Topaz’ employees. The contract that Respondents requested Topaz to sign was a complete one, setting forth wages and other requested Topaz to sign was a complete one, setting forth wages and other terms and conditions of employment for Topaz’ employees. The subcontracting provisions were included in that total contract. There is, then, a clear distinction between the union-employer relationship that existed here and that which prevailed in Connell. This distinction, consistent with our holding in Woelke & Romero, supra, is critical to resolution of the proviso protection question. In Connell, the union had no past relationship with the employer, did not seek to establish one, sought an agreement dealing exclusively with the subject of subcontracting, and specifically disavowed any intent to seek recognition by Connell. !? We find, } ae ' The agreement which the Union requested Connell to sign stated, in part: "Whereas, it is understood that by this agree- ment the contractor does not grant, nor does the union seek, recognition as the collective bargaining representative of any employees of the signatory contractor." 421 U.S. 620. 83-a therefore, that the subcontracting provision at issue here exists within the context of a collective-bargaining rela- tionship as that phase is used in Connell. In neither Schriver nor Topaz, however, was the collective-bargaining relationship one in which the Unions involved represented a majority of the unit employees. Nevertheless the ‘ eontracts with Schriver and the proposed contract with Topaz were lawful by reason of Section 8(f) which exempts contracts with minority unions in the construction industry from the unfair labor practice prohibitions of Section 8(a) and (b) of the act. '® The subcontracting 18sec. 8(f£) provides: ° It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organization of which building and construction employees are members (not established, maintained, or assisted by any action defined in 84-a agreements, therefore, were in the context of valid 8(f) collective-bargain- ing relationships. The fact that Respondent District Council and Respondent Local 1752 picketed for a short period in support of , / 7 Section 8(a) of this Act as an unfair labor practice) because (1) the majority status of such labor organization has not been established under the provisions of Section 9 of this Act prior to the making of such agreements, membership in such labor organization after the seventh day following the beginning of such employment or the effective date of the agreement, whichever is later, or (3) such agreement requires the employer to notify such labor organization of opportunities for employment with such employer, or gives such labor organization an opportunity to refer qualified applicants for such employment, or (4) such agreement specifies minimum training or experience qualifications for employment or provides for priority in opportunities for employment based upon length of service with such employer, in the industry or in the particular geographical area: Provided, That nothing in this subsection shall set aside the final 85-a their attempt to establish the 8(f) relationship does not in our view impair the effectiveness of the relationship for purposes of applying proviso protection. The picketing which lasted for less than 30 days did not contravene the limitations placed on organizational and recognitional picketing by Section 8(b’(7)(C); and picketing to obtain the contract containing subcontracting clauses, as distinguished from picketing to enforce such a contract, is permitted under the statute.” proviso to Section 8(a)(3) of this Act: Provided further, That any agreement which would be invalid, but for clause (1) of this subsection, shall not be a bar to a petition filed pursuant to Section 9(c) or 9(e). 1956e Northeastern Indiana Building and Construction Trades Council, et al. (Centlivre Village Apartments), 148 NLRB 854 (1964); Los Angeles Building and Construction Trades Council (Joseph Freed & Benjamin H. Weber, d/b/a B&J Investment Company), 214 NLRB 562 (1974). See aiso Construction, Production & Maintenance Laborers Union, Local 383, AFL-CIO, et al. [Independent Contractors Associational] v. N.L.R.B., 323 F.2d 422 (C.A. 9, 1963). 86-a The Charging Party and the Chamber of Commerce of the United States of America, amicus curiae, take the position that a collective-bargaining relation- ship, lawful only by reason of Section 8(f), is not sufficient to permit subcontracting agreements that are protected by the construction industry proviso. They contend that the only type of collective-bargaining relationship which afford proviso protection to subcontracting agreements is a relation- ship which meets the standards of Section 9(a); i.e., One in which the union involved represents a majority of the employees in an appropriate unit. The General Counsel takes the position that an 8(f£) relationship is sufficient? once employees are hired pursuant to 8(f) contract. a 20nhe General Counsel does not argue the sufficiency of the collective-bargaining relationship in these cases. He attacks the subcon- tracting clauses because, even if they are considered to be in the context of a collective-bargaining relationship, they are not cnfined by time and jobsite and they require subcontractors to contract with a particular union, 21e find it unnecessary to pass upon the General Counsel's posi- tion since here both Schriver and Topaz 87-a wT In interpreting both the construction industry proviso and Section 8(b)(4)(A) in the past, the Board has made no distinction between agreements with a minority union permitted by Section 8(f£) and agreements with a majority union having representative status under Section 9(a), and we see nothing in the Connell decision that requires such a distinction. In Connell, there was no collective-bargaining rela- tionship, nor was one sought. Accord- ingly, the Court did not speak to the question of what type collective-bargaining relationship would, or would not be sufficient to invoke application of proviso protection to a subcon- tracting agreement. To the extent, however, that the Court said anything on the issue, it implied that an 8(f) relationship would be sufficient. Thus, in rejecting an argument that the Board had previously approved general subcontracting agreements with "stranger" . 26 the Court speculated that the employer and union, employees in B&J Investment Company, rather than strangers, “may have... had employees for whom a bargaining relation- ship was sought at all times in question. 22h os Angeles Building & Construction Trades Council (B&J Investment Company), supra, discussed at fn. 10 of Connell, supra. 88-a [had] a prehire contract under Sec. 8(f£)." Moreover, the Court referred to 8(£) prehire contracts as a "special consideration" that Congress gave to organizational campaigns of unions in the construction industry. (421 U.S. at 632),. Section 8(f) was enacted in 1959 at the same time Section 8(e) was added to the Act. Both Section 8(f) and the con- struction industry proviso to Section 8(e) were designed to accommodate the unique situation in the construction industry where contractors and subcon- tractors are in close relationship on the jobsite; employment is sporadic in nature; and employers need a ready supply of skilled employees and advance information concerning labor costs.*? It is reasonable, therefore, to coordinate the protection | the construction industry proviso provides to agreements in the industry with the type of bargaining relationship 2350e H. Rep. No. 741, 86th Cong., 1st Sess., I Leg. Hist. 759, 777 (LMRDA, 1959); National Woodwork Manufacturers Association v. N.L.R.B., 386 U.S. 612 (1967). 89-a specially permitted in the industry by Section 8(f). The language of the proviso does not limit its protection to agreements made by a union with majority status and, as we read the decision, Connell does not set such a limitation. In the absence of statutory language or Supreme Court precedent, we see no reason to construe the construction industry proviso to include the requirement that an agreement protected by the proviso be with a majority union representative. Such a construction is not warranted in an effort to prevent use of 8(f) contracts as organizational "weapons." The statute provides other safeguards against abuse of employee organizational rights by 8(f) contracts. For example, Section 8(f£) provides that a contract with a minority union shall not be a bar to a representation petition; Section 8(b)(7)(C) has been construed to limit picketing for recognition in the context of an 8(f) contract; 74 and Section 24nhe Supreme Court has accepted the Board's position that picketing by a minority union to enforce an 8(f£) contract ignored by the contract- ing employer party to the contract constitutes picketing for initial rec- ognition within the meaning of Sec. 8(b) (7)(C). N.L.R.B. v. Local Union No. 103, 90-a 5th aes _ ne» ithe a ae Cette, et Rees i th eee ae, A = 8(b)(4)(B) serves to prohibit picketing to enforce an 8(f) contract which incorporates a secondary subcontracting agreement. An 8(f£) collective-bargaining relationship may be more vulnerable to disruption than a 9(a) relationship because inquiry may be made into the union's majority status during the term of the contract. Nevertheless, under an existing 8(f) relationship, the union party to the 8(f) contract is the lawful representative of the employees covered by the contract. As their representative such union has an interest in restricting subcontracting in order to protect continuity of work and fringe benefits for the employees and to insure more stable and harmonious jobsite relations to the same extent a 9(a) representative has. For the foregoing reasons, we conclude that the subcontracting agreements involved are protected by the construction industry proviso to Section 8(e), notwithstanding the Connell decision. International Association of Bridge, Structural & Ornamental Iron Workers AFL-CIO [Higdon Contracting Co.], 434 U.S. 335 ( ). 91-a There remains for consideration the General Counsel's contention that the subcontracting clauses are not protected by the proviso because of the contract's "self-enforcement" features. In support of this contention the General Counsel relies upon Article III, Section 306, of the 1974 MLA, incorporated by the Agreement. Article III covers strikes, lockouts, jurisdictional disputes, and the complaint quotes as pertinent the following part of Section 306: 306. Nothing contained in this Agreement, or any part thereof, shall affect or apply to the Union in any action it may take against any Contractor or subcontractor who has failed, neglected or refused to comply with or execute any settlement or decision reached at any step of the grievance procedure or through Arbitration undsr the terms of Article V hereof. According to the General Counsel, these provisions constitute a "broad" self-help 25 art. V. covers the procedure for settlement of grievances and disputes, and provides for submission to that procedure of any grievances or disputes arising out of the interpretation or application of any of the terms or conditions of the contract. 92-a clause which applies to union action with respect to employer failure to comply with grievance-arbitration decisions on any grievable subject, including the sub- contracting restrictions in issue--Article I, Sections 103, 103.1, 103.2, and 103.3. Where contract terms permit resort to economic action to enforce secondary provisions, the General Counsel argues, the protection of the construction industry proviso is not available. We find merit to the General Counsel's contention. The self-enforcement features of Section 306 relate to and affect the subcontracting clauses, along with other matters to which the grievance-arbitration procedure applies. By removing contract restraints upon "any action" the union may take against an employer who fails to satisfy the specified grievance-arbitration obligations, Section 306 gives sanction to economic action by the union to enforce the subcontracting restrictions. -° The Board has 26 member Murphy does not read this clause the way her colleagues do. At best, she thinks this clause, unlike the clause in Pacific Northwest, supra, is ambiguous. It is well-settled Board law that where a clause in a contract can be construed two ways--one lawful and one 93-a previously found that, although the proviso to Section 8(e) privileges onsite secondary agreements in the construction industry, such agreements may not be enforced by coercion, and that the proviso protection is lost where contract terms look to strikes or other economic pressure for enfcrcement of scondary 27 agreements. unlawful--it is given the benefit of the doubt and construed to be lawful. This she chooses to do here. General Teamsters, Chauffeurs, Warehousemen and Helpers, Local 982, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (J.K. Barker Trucking Co., 181 NLRB 515 (1 hie Accordingly, unlike the majority, she would find the contract within the protection of the construction industry proviso to Sec. 8(e) and would dismiss the complaint. In any event, Member Murphy emphasizes that all five Board Members agree that the actual us. oi economic action to enforce a clause protected by the construction industry proviso under Sec. 8(e) violates the Act. 27 see Muskegon Bricklayers Union #5, Bricklayers, Masons and Plasterers International Union of America (AFL-CIO) (Greater Muskegon General _ Contractors Association), 152 NLRB 360 94-a Accordingly, we find that the union signatory, subcontracting clauses of the 1974 MLA--Article I, Sections 103, 103.1, 103.2, and 103.3--are violative of Section 8(e) of the Act by reason of self-enforcement provisions.~° By (1965); ETS-Hokin Corporation, 154 NLRB 839 (1965); Fresno, Madera, Kings and Tulare Counties Building and Construction Trades Council (Gage Brothers Construction), 218 NLRB 39 (1975); International Union of Operating Engineers, Local Union No. 12, AFL-CIO (Robert E. Fulton), 220 NLRB 530 (1975). 28 chairman Fanning dissents from this finding. He has previously stated his position that the mere existence of self-enforcement features in a contract does not make the construction industry proviso inapplicable to the contract. See, for example, his dissenting opinion in the Muskegon case cited above. Moreover, wholly apart from his disagreement with the general position of the majority that the proviso does not protect contracts with self-enforcement features, Chairman Fanning does not consider the provisions of Sec. 306 complained of in this case to constitute self-help measures. At most the provisions exempt economic action from the no-strike prohibitions of the contract. They do not affirmatively 95-a threatening to picket Schriver to require it to reaffirm unlawful secondary agreements, Respondent Trades Council and Respondent Local 1497 reaffirmed and reentered a contract requiring an employer to cease doing business contrary to Section 8(e),-° and engaged in coercion in violation of Section 8(b)(4)(ii)(A). By picketing Topaz to require it to enter into a secondary agreement prohibited by Section 8(e), Respondent District Council and Respondent Local 1752 violated Section 8(b)(4)(i) and (ii)(A). authorize any economic action and thus do not provide for enforcement of subcontracting provisions contrary to the prohibitions of Sec. 8(b)(4)(B). Chairman Fanning would therefore find the contract within the protection of the construction industry proviso, and would dismiss the complaint. 2925 ¢e Brotherhood of Painters, Decorators and Paperhangers of America, Local Union No. 823, AFL-CIO (Independent Painting Contractors of New Mexico), 161 NLRB 620, 630 (1966). 96-a The Remedy Having found that the Respondents have engaged in unfair labor practices, we shall order them to cease and desist therefrom and to take certain affirmative action to effectuate the purposes of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, we make the following: Conclusions of Law 1. Donald Schriver, Inc., and Topaz Contracting & Development Co., Inc., are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The following organizations are labor organizations within the meaning of Section 2(5) of the Act: Los Angeles Building and Construction Trades Council; Local Union No. 1497, United Brotherhood of Carpenters and Joiners of America; Los Angeles County District Council of Carpenters; Local Union NO. 1752, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. 3. The 1974 Master Labor Agreement between Southern California General Contractors and United Brotherhood of Carpenters and Joiners of America, and 97-a the “Articles of Agreement” signed by Donald Schriver, Inc., and Los Angeles Building and Construction Trades Council, which incorporates the terms of the 1974 Master Labor Agreement, are agreements contrary to Section 8(e) of the Act by reasons of self-enforcement provisions. 4. By threatening to picket Donald Schriver, Inc., with an object of requiring it to reaffirm the 1974 Master Labor Agreement, Respondent Trades Council reentered the “Articles of Agreement" in violation of Section 8(e) of the Act and engaged in coercion in violation of Section 8(b)(4)(ii)(A) of the Act. 5. By threatening to picket Donald Schriver, Inc., with an object of requiring it to reaffirm the 1974 Master Labor Agreement, Respondent Local 1497 reentered the Master Labor Agreement in violation of Section 8(e) of the Act and engaged in coercion in violation of Section 8(b)(4)(ii)(A) of the Act. 6. By picketing Topaz Contracting & Development Co., Inc., with an object of requiring it to sign the 1974 Master Labor Agreement, Respondent District Council and Respondent Local 1752 violated Section 8(b)(4)(i) and (ii)(A) of the Act. 7. The above unfair labor practices are unfair labor practices affecting 98-a commerce and the free flow of commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: A. Los Angeles Building and Construction Trades Council, Los Angeles, California, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Entering into, maintaining, giving effect to, or enforcing its "Articles of Agreement" with Donald Schriver, Inc., to the extent found unlawful herein by reason of self-enforcement provisions. (b) Coercing or restraining Donald Schriver, Inc., or any person engaged in commerce or in an industry affecting commerce, where an object thereof is forcing or requiring an employer to enter into an agreement which is prohibited by Section 8(e) of the Act by reason of self-enforcement provisions. 2. Take the following affirmative action: 99-a (a) Post at its business office and meeting halls copies of the attached notice marked “Appendix 11." Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by an authorized representative of Respondent Trades Council, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Trades Council to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and deliver to the Regional Director for Region 21 sufficient copies of said notice, to be furnished by the Regional Director, for posting by Donald Schriver, if willing. 3075 the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD," 100-a (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent Trades Council has taken to comply herewith. B. Local Union No. 1497, United Brotherhood of Carpenters and Joiners of America, Los Angeles, California, its officers, agents, and representatives, shall: 1. Case and desist from: (a) Entering into, maintaining, giving effect to, or enforcing the 1974 Master Labor Agreement as to Donald Schriver, Inc., to the extent found unlawful herein by reason of self-enforcement provisions. (b) Coercing or restraining Donald Schriver, Inc., or any person engaged in commerce or in any industry affecting commerce, where an object thereof is forcing or requiring an employer to enter into an agreement which is prohibited by Section 8(e) of the Act by reason of self-enforcement provisions. 2. Take the following affirmative action: (a) Post at its business office and meeting halls copies of the attached notice marked “Appendix I11."°! 31 see footnote 30, supra. 101-a Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by an authorized representative of Respondent Local 1497, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Local 1497 to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and deliver to the Regional Director for Region 21 sufficient copies of said notice, to be furnished by the Regional Director, for posting by Donald Schriver, Inc., if willing. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent Local 1497 has taken to comply herewith. C. Los Angeles County District Council of Carpenters and Local Union No. 1752, United Brotherhood of Carpenters and Joiners of America, Los Angeles, California, their officers, agents, and representatives, shall: 1. Cease and desist from inducing or encouraging the employees of Topaz 102-a Contracting & Development Co., Inc., or any other employer engaged in commerce or in an industry affecting commerce, to refuse to perform services in the course of their employment, and coercing or restraining Topaz Contracting & Development Co., Inc., Or any person engaged in commerce or in an industry affecting commerce, where an object thereof is forcing or requiring an employer to enter into an agreement which is prohibited by Section 8(e) of the Act by reason of self-enforcement provisions. 2. Take the following affirmative action: (a) Post at their business offices and meeting halls copies of the attached notice marked "Appendix Iv." forms provided by the Regional Director Copies of said notice, on for Region 21, after being duly signed by an authorized representative of Respondent District Council and Respondent Local 1752, shall be posted by each immediately upon receipt thereof, and be maintained by each for 60 consecutive days thereafter, in 3256e fn. 30, supra. 103-a a conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by each to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and deliver to the Regional Director for Region 21 sufficient copies of said notice, to be furnished by the Regional Director, for posting by Topaz Contracting & Development Co., Inc., if willing. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps they have taken to comply herewith. Dated, Washington, D.C. November 13, 1978, John H. Fanning, Chairman Howard Jenkins, Jr., Member John A. Penello, Member Betty Southard Murphy, Member John C. Truesdale, Member NATIONAL LABOR RELATIONS BOARD 104-a APPENDIX I Contract Clauses in Issue as Described in the Amended Consolidated Complaint in Cases 21-CC-1680 and 21-CE-144 and Case 21--CC--1842--2 Article IV of the 1972 Articles of Agreement reads as follows: ARTICLE IV The Employer, Developer and/or Owner-Builder agrees that he shall contract or subcontract all jobsite work set forth in Article I above to a person, firm, partnership or corporation that is party to an executed, current Agreement with the appropriate Union having work and territorial jurisdiction, affiliated with the Council in which area the work is performed. Article I, Sections 103, 103.1, 103.2, and 103.3, and Article III, Section 306 of the 1974 Master Labor Agreement provide, in pertinent part, as follows: 103. The Contractor agrees that he or any of his subcontractors on the jobsite will not contract or subcontract work to be done at the site of construction, alteration, painting, or repair of a building, structure, or other work, except to a person, firm or corporation, party to an appropriate, current labor agreement with the appropriate union, or subordinate body, affiliated with the Building and 105-a Construction Trades Department, AFL-CIO, or with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or an affiliate thereof. 103.1. A subcontractor for the purposes of this Agreement, with the exception of the general provision immediately above, is defined as any person, firm or corporation holding a valid State Contractors' License and agrees under contract in writing with the Contractor or in writing with his subcontractors to perform any work covered by this Agreement, and employs workmen as employees to perform secvices covered by this Agreement, including the performance of labor, and/or furnishing or installation of material, or the operation of equipment. All employees of subcontractors will perform work at the appropriate hourly rate and will be reported to such trust funds as required by the Agreement. 103.2 All work performed by the Contractors or subcontractors and all services rendered for the Contractors or subcontractors, as herein defined, shall be rendered in accordance with each and all of the terms and provisions hereof. 106-a 103.3 If the Contractor or subcontractors shall subcontract jobsite work covered under the jurisdiction of the United Brotherhood of Carpenters and Joiners of America, including the furnishing and installation of material, performance of labor, and the operation of equipment, provision shall be made in written contract for the observance and compliance by his subcontractors with the full terms of this Agreement. * * * 306. Nothing contained in this Agreement, or any part thereof, shall affect or apply to the Union in any action it may take against any Contractor or subcontractor who has failed, neglected or refused to comply with or execute any settlement or decision reached at any step of the grievance procedure or through Arbitration under the terms of Article V hereof. ... 107-a APPENDIX II NOTICE TO EMPLOYEES AND MEMBERS Posted by Order of the National Labor Relations Board An Agency of the United States Government _WE WILL NOT enter into, maintain, give effect to, or enforce Articles of Agreement with Donald Schriver, Inc., to the extent found unlawful by the Board by reason of self-enforcement provisions. WE WILL NOT coerce or restrain Donald Schriver, Inc., or any person engaged in commerce or in any industry affecting commerce, where an object thereof is forcing Or requiring an employer to enter into an agreement which is prohibited by Section 8(e) of the Act by reason of self-enforcement provisions. LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL (Labor Organization) Date By oes (Representacive)Title 108-a belkin Dime a APPENDIX III NOTICE TO EMPLOYEES AND MEMBERS Posted by Order of the National Labor Relations Board An Agency of the United States Government WE WILL NOT enter into, maintain, give effect to, or enforce the 1974 Master Labor Agreement as to Donald Schriver, Inc., to the extent found unlawful by the Board by reason of self-enforcement provisions. WE WILL NOT coerce or restrain Donald Schriver, Inc., or any person engaged in commerce or in an industry affecting commerce, where an object thereof is forcing or requiring an employer to enter into an agreement which is prohibited by Section 8(e) of the Act by reasons of self-enforcement provisions. LOCAL UNION NO. 1497, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA (Labor Organization) Dated By (Representative) Title 109-a APPENDIX IV NOTICE TO EMPLOYEES AND MEMBERS Posted by Order of the National Labor Relations Board An Agency of the United States Government WE WILL NOT induce or encourage the employees of Topaz Contracting & Development Co., Inc., or any Other employer engaged in commerce or in an industry affecting commerce, to refuse to perform services in the course of their employment, and WE WILL NOT coerce or restrain Topaz Contracting & Development Co., Inc., or any person engaged in commerce or in an industry affecting commerce, where an object thereof is forcing Or requiring an employer to enter into an agreement which is prohibited by Section 8(e) of the National Labor Relations Act by reasons of self-enforcement provisions. LOS ANGELES COUNTY DISTRICT COUNCIL OF CARPENTERS (Labor Organization) Dated By (Representative) (Title) LOCAL UNION NO, 1752, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA (Labor Organization) Dated By 110-a ay, , , St Sas Va. Ot eee phd: SOM ik , ie ae APPENDIX C > STATUTORY APPENDIX Text of Labor Management Relations Act of 1947 As Amended (29 U.S.C. 151 et seq.) Section 1. It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection. Section 7. Employees shall have the right to self-organization, to form, join, or assist labor org nizations, to bargain collectively thr ugh representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement reguiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3). Section 8(b). It shall be an unfair labor practice for a labor organization or its agents -- (4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, 1l1-a a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is: (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or to enter into any agreement which is prohibited by Section 8(e); Section 8(e) It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforceable and void; Provided, That nothing in this subsection (e) shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work; Provided further, That for the purposes of this subsection (e) and Section 8(b)(4)(B) the terms “any employer," “any person engaged in commerce or in industry affecting commerce," and “any person” when u: 2d in relation to the terms “any other producer, processor, or manufacturer," “any other 112-a ~~ employer,” or feng other person" shall not include persons in the relation of a jobber, manufacturer, contractor, or subcontractor working on the goods or premises of the jobber or manufacturer or performing parts of an integrated process of production in the apparel and clothing industry; Provided further, That nothing in this Act shall prohibit the enforcement of any agreement which is within the foregoing exception. (£) It shall not be an unfair labor practice under ‘subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organization of which building and construction employees are members (not established, maintained, or assisted by any action defined in Section 8(a) of this Act as an unfair labor practice) because (1) the majority status of such labor organization has not been established under the provisions of Section 9 of this Act prior to the making of such agreement, or (2) such agreement requires as a condition of employment, membership in such labor organization after the seventh day following the beginning of such employment or the effective date of the agreement, whichever is later, or (3) such agreement requires the employer to notify such labor organization of opportunities for employment with such employer, or gives such labor organization an opportunity to refer qualified applicants for such employment, or (4) such agreement specifies minimum training or experience qualifications for employment or provides for priority in opportunities for employment based upon length of service 113-a with such employer, in the industry or in the particular geographical area; Provided, That nothing in this subsection Shall set aside the final proviso to Section 8(a)(3) of this Act; Provided further, That any agreement whicii would be invalid, but for clause (1) of this subsection, shall not be a bar to a petition filed pursuant to Section 9(c) or 9(e). Section 9(a). Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment; Section 201 That it is the policy o” the United States that -- (c) certain controversies which arise between parties to collective-bargaining agreements may be avoided or minimized by making available full and adequate governmental facilities for furnishing assistance to employers and the representatives of their employees in formulating for inclusion within such agreements provision for adequate notice of any proposed changes in the terms of such agreements, for the final [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1218%3A1. Public record. Not legal advice.