Petition — Joint Council of Teamsters No. 42 v. National Labor Relations Board

Supreme Court brief1983

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82-2085 ee

No. ..- we 16 9%

IN THE

Supreme Court of the Unitell States: —!

October Term, 1982

JOINT COUNCIL OF TEAMSTERS NO. 42, AND ITS AFFILIATED

LOCAL UNIONS, SALES DRIVERS & DAIRY EMPLOYEES,

LOCAL 166, GENERAL TRUCK DRIVERS, LOCAL 235;

GENERAL TRUCK DRIVERS, CHAUFFEURS & HELPERS,

LOCAL 692; CHAUFFEURS, TEAMSTERS AND HELPERS,

LOCAL 186; BUILDING MATERIAL AND DUMP TRUCK

DRIVERS, LOCAL 420; GENERAL TEAMSTERS, CHAUF-

FEURS, WAREHOUSEMEN & HELPERS, LOCAL 982;

TRUCK DRIVERS, WAREHOUSEMEN AND HELPERS, LO-

CAL 898; TEAMSTERS & WAREHOUSEMEN, LOCAL 381,

ALL AFFILIATED WITH THE INTERNATIONAL BROTH-

ERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-

MEN AND HELPERS OF AMERICA; TEAMSTERS, CHAUF-

FEURS, WAREHOUSEMEN AND HELPERS, LOCAL 87,

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF

AMERICA,

Petitioners,

VS.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

ASSOCIATED INDEPENDENT OWNER-OPERATORS, INC.,

Intervenor.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT.

(Parties to Petition and Names of Attorneys

listed on inside cover)

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

VS.

BUILDING MATERIAL AND DUMP TRUCK DRIVERS, LOCAL

420, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF

AMERICA, AND ASSOCIATED GENERAL CONTRACTORS

OF CALIFORNIA, INC.; BUILDING INDUSTRY ASSOCIA-

TION OF CALIFORNIA, INC.; ENGINEERING CONTRAC-

TORS ASSOCIATION, INC.; SOUTHERN CALIFORNIA

CONTRACTORS ASSOCIATION,

Respondents.

ASSOCIATED INDEPENDENT OWNER-OPERATORS, INC.,

ASSOCIATED GENERAL CONTRACTORS OF CALIFORNIA

DUMP TRUCK OWNERS ASSOCIATION,

Intervenors.

CALIFORNIA DUMP TRUCK OWNERS ASSOCIATION,

Petitioner,

VS.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

ASSOCIATED INDEPENDENT OWNER-OPERATORS, INC.,

Intervenor.

GEORGE A. PAppPy,

RALPH M. PHILLIPS,

Pappy, KAPLON, VOGEL & PHILLIPS,

By RALPH M. PHILLIPS,

1545 Wilshire Boulevard,

Suite 211,

Los Angeles, California 90017,

(213) 484-2005,

Attorneys for Petitioners Joint Council of

Teamsters No. 42, and its affiliated

local unions, Sales Drivers & Dairy

Employees, Local 166; General Truck

Drivers, Local 235; General Truck

Drivers, Chauffeurs & Helpers, Local

692; Chauffeurs, Teamsters and

Helpers, Local 186; Building Material

and Dump Truck Drivers, Local 420;

General Teamsters, Chauffeurs,

Warehousemen & Helpers, Local 982;

Truck Drivers, Warehousemen and

Helpers, Local 898; Teamsters &

Warehousemen, Local 381, all

affiliated with the International

Brotherhood of Teamsters,

Chauffeurs, Warehousemen and

Helpers of America; Teamsters,

Chauffeurs, Warehousemen and

Helpers, Local 87, International

Brotherhood of Teamsters,

Chauffeurs, Warehousemen and

Helpers of America.

(1)

(2)

Questions Presented for Review.

WHETHER OWNER-OPERATORS ARE EM-

PLOYEES WITHIN THE MEANING OF SEC-

TION 2(3) OF THE LABOR MANAGEMENT RE-

LATIONS ACT (““LMRA’’).

WHETHER THE NATIONAL LABOR RELA-

TIONS BOARD ERRED BY EXCLUDING THE

WORK OF OWNER-OPERATORS FROM THE

PROTECTION OF THE CONSTRUCTION IN-

DUSTRY PROVISO TO SECTION 8(e) OF THE

LMRA.

Parties to the Proceeding.

The following are parties to this proceeding:

(1)

(2)

(3)

(4)

Joint Council of Teamsters No. 42, and its affil-

iated local unions, Sales Drivers & Dairy Em-

ployees, Local 166; General Truck Drivers, Local

235; General Truck Drivers, Chauffeurs, & Help-

ers, Local 692; Chauffeurs, Teamsters and Help-

ers, Local 186; Building Material and Dump Truck

Drivers, Local 420; General Teamsters, Chauf-

feurs, Warehousemen & Helpers, Local 982;

Truck Drivers, Warehousemen and Helpers, Lo-

cal 898; Teamsters & Warehousemen, Local 381,

al’ affiliated with the International Brotherhood

of Teamsters, Chauffeurs, Warehousemen and

Helpers of America; Teamsters, Chauffeurs,

Warehousemen and Helpers, Local 87, Interna-

tional Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America.

The National Labor Relations Board.

The Associated General Contractors of Califor-

nia, Inc., the Building Industry Association of

California, the Engineering Contractors Associ-

ation and the Southern California Contractors

Association.

The Associated Independent Owner-Operators,

Inc., the California Dump Truck Owners Asso-

ciation, and the Associated General Contractors

of California Dump Truck Owners Association.

TABLE OF CONTENTS

Page

Questions Presented for Review ....................000005 i

Pete AP TS PUR OOIGIAG, f.eitscivcciiccciccccesssccovcsesesss il

IS Sec stniadinS wcuihiycanekened rigs tnssacendbbecsis 3

NED TatuGh ec iecbahddetasnadedinevekvosasdteneshaneubonsh 3

Statutory Provisions Involved ....................0ceeeeeeee 4

NE I ID Eh dipi a aschssccbucenierananebessaces 6

Ai. PPUCTERATY GOMDOMIONE oo. 5.5... cc ences ccscsccenes 6

Be I WT occu enonddeknsonnvcncthanusenes 6

1. The Master Labor Agreement ............... 6

2. The Owner-Operators ................:...0:... 7

er NINE accccsnciusexsvsncacsesenteane 8

4. The Present Controversy ..................... 11

C. Proceedings and Disposition Below ............. 11

PI hte 2s dea lcixedaghctutusacheqglinciubercapacecscinyts 13

Il.

There Now Exists an Express Conflict Among the

Circuits as to Whether Owner-Operators Are Em-

ployees Within the Meaning of Section 2(3) of the

RIE Sts Wiatthaedipdn a bila Catainnks wacen tiempenwendnncedes 13

Il.

This Case Raises an Important Question Concerning

the Scope of the Construction Industry Proviso

Which Has Not Been Settled by This Court ...... 15

Ill.

SN ne ee 17

INDEX TO APPENDICES

Page

PTAs SITET ness cisvnsescanevngisiesisne App. p. |

Appendix ii. Order. Petition for a Writ of Certiorari

MN. cha Canteldihaks dacsbeakes vs sodeiss cong meboenesss ois 3

PCE Bee GIN in ioetecdcsetecscécccessevssooccesees 4

Appendix iv. Decision and Order .................:0005 15

Appendix v. Pertinent Code Sections Involved ....... 48

Appendix vi. Article xiii Owner-Operator ............. 53

TABLE OF AUTHORITIES

Cases Page

Associated Generai Contractors of California, Inc.

(Teamsters, Local 94), 220 N.L.R.B. 540 (1975) 10

Associated General Contractors of California, Inc. v.

NLRB, 564 F.2d 271 (9th Cir. 1977) ............ 10, 14

Associated General Contractors of California, Inc., 239

PE ED CAPO ice cacesls date ccvcsbovsnsbsses covks 11

Associated Independent Owner-Operators, Inc. v.

NLRB, 407 F.2d 1383 (9th Cir. 1969) ............... i)

Building Material and Dump Truck Drivers, Local 36

v. NLRB, 673 F.2d 550 (D.C. Cir. 1982), aff'd., sub

nom. Shepard v. NLRB, 459 U.S. ...., 103 S.Ct.

DOE hxnsiGcndkndipe coed ekatpieccntwassxnupaganess eee? 14

Chapman v. Edwards, 133 Cal.App. 72, 24 P.2d 211

GE etd capes tis de dlepaiduntnchsshichduntateleinanes 9

Contractor Members of the Associated General Con-

tractors of California, Inc., 201 N.L.R.B. 311 (1973)

dh Nee he dinihig cus code vache ianwniabcdaudeveuns 10

Contractor Members of the Associated General Con-

tractors of California, Inc., 209 N.L.R.B. 363 (1974)

PENA LES SEEDS SED. A ORES APE Be Se, Se Oe ay toh 10

Corning Glass Works v. Brennan, 417 U.S. 188, 94

PE RARE NPE Gn 050 i badpuses sugvabeasoccosversavecds 14

Donald Shriver Inc. v. NLRB, 635 F.2d 859 (D.C. Cir.

PIED. wibivineicdicavadaced palmate uses, bacrcdebeenieties 16

General Teamsters, Local 982 (J.K. Barker Trucking

o.); TSE. BEA: See (IDI os. soccccdeveticvencers. 9

Joint Council of Teamsters No. 42 v. NLRB, 450 F.2d

or 2 alll Ci 5. EERIE SRLS aap tte ee 9, 14.

Local 777, Democratic Organizing Committee v. NLRB,

603 F.2d 862 (D.C. Cir. 1978) ...............c.e cee eee 14

Page

Operating Engineers, Local 12 (Associated Independent

Owner-Operators, Inc.) 168 N.L.R.B. 863 (1967) 9

NLRB v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct.

ERY MEUM Carkcnduas ct cupaecdbekbycesiclustbobesagedsones 13

NLRB v. Hendricks County Rural Electric Membership

Cape: OZ SER AIS CIGGES sic lites cdesdan di teetuas 13

NLRB v. United Insurance Co. , 390 U.S. 254, 88 S.Ct.

Fae CSOD is ea iene tlhncincniibcndotinesesiiaies 14

Packard Motor Car Co. v. NLRB, 330 U.S. 485, 67

BGR, FOP RIOD Gisdcevcviccdadadeveiv ate ddecbeviacs eeey 13

RCA Del Caribe, Inc., 262 N.L.R.B. No. 116 (1982)

ai Chasis andkls ve sctep venta dep nastier inn <ocsnabteeriaae eae 10

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89

PENS. ROP REE idbihndncicivdanapintncdwiavadionnsebens 13

Shepard v. National Labor Relations Board, 459 U.S.

Seite: SA ey SEMEN CRUNEED Secnatneees soocenciresa ones 4, 12

United Insurance Co. v. NLRB, 272 F.2d 446 (7th Cir.

OY aid rans Cade sdbcseonadpak osuaitsnsna Ve onadesutinipeseiths 14

Woelke & Romero Framing, Inc. v. NLRB, 456 U.S.

so: p! » AD Es MAEVE RODMMED ranvucbeccivrnsaevarscasent 16

Statutes

Labor Management Relations Act, Sec. 2(3) .... i, 8, 13

Labor Management Relations Act, Sec. 8(a)(1) (29

F.5D TIRE) CASI) - ies cin caster cc ciccncec ics 10

Labor Management Relations Act, Sec. 8(a)(2) (29

OFS. 3 ASRIZ) CGT. oss vctceteehedsintssiaded 10

Vil

Page

Labor Management Relations Act, Sec. 8(b)(4)(ii)(A)

(29 U.S.C. § 158(b)(4)(ii(A) (1976)) ............ 3%

Labor Management Relations Act, Sec. 8(e) (29 U.S.C.

fe | ae 9, 7,08, 13,

Labor Management Relations Act, Sec. 9(b) (29 U.S.C.

ei aicc oxcdcees sduksderiiankoacs 13

Labor Management Relations Act, Sec. 10(e) (29 U.S.C.

ead isda conduccinaircoccucewes sons 6

Labor Management Relations Act, Sec. 10(f) (29 U.S.C.

I os vali SicbancannidconGabdsbacuécbandsed 6

United States Code, Title 28, Sec. 1254(1) (1976)

eee

IN THE

Supreme Court of the United States

October Term, 1982

JOINT COUNCIL OF TEAMSTERS NO. 42, AND ITS AFFILIATED

LOCAL UNIONS, SALES DRIVERS & DAIRY EMPLOYEES,

LOCAL 166; GENERAL TRUCK DRIVERS, LOCAL 235;

GENERAL TRUCK DRIVERS, CHAUFFEURS & HELPERS,

LOCAL 692; CHAUFFEURS, TEAMSTERS AND HELPERS,

LOCAL 186; BUILDING MATERIAL AND DUMP TRUCK

DRIVERS, LOCAL 420; GENERAL TEAMSTERS, CHAUF-

FEURS, WAREHOUSEMEN & HELPERS, LOCAL 982; TRUCK

DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL 898;

TEAMSTERS & WAREHOUSEMEN, LOCAL 381, ALL AF-

FILIATED WITH THE INTERNATIONAL BROTHERHOOD

OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND

HELPERS OF AMERICA; TEAMSTERS, CHAUFFEURS,

WAREHOUSEMEN AND HELPERS, LOCAL 87, INTERNA-

TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,

WAREHOUSEMEN AND HELPERS OF AMERICA,

Petitioners,

VS.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

ASSOCIATED INDEPENDENT OWNER-OPERATORS, INC.,

Intervenor.

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

vs.

BUILDING MATERIAL AND DUMP TRUCK DRIVERS, LOCAL

420, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF

AMERICA, AND ASSOCIATED GENERAL CONTRACTORS

OF CALIFORNIA, INC.; BUILDING INDUSTRY ASSOCIA-

pc, TE

TION OF CALIFORNIA, INC.; ENGINEERING CONTRAC-

TORS ASSOCIATION, INC.; SOUTHERN CALIFORNIA

CONTRACTORS ASSOCIATION,

Respondents.

ASSOCIATED INDEPENDENT OWNER-OPERATORS, INC.,

ASSOCIATED GENERAL CONTRACTORS OF CALIFORNIA

DUMP TRUCK OWNERS ASSOCIATION,

Intervenors.

CALIFORNIA DUMP TRUCK OWNERS ASSOCIATION,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

ASSOCIATED INDEPENDENT OWNER-OPERATORS, INC.,

Intervenor.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT.

Petitioners Joint Council of Teamsters No. 42, and its

affiliated local unions, Sales Drivers & Dairy Employees,

Local 166; General Truck Drivers, Local 235; General Truck

Drivers, Chauffeurs & Helpers, Local 692; Chauffeurs,

Teamsters and Helpers, Local 186; Building Material and

Dump Truck Drivers, Local 420; General Teamsters, Chauf-

feurs, Warehousemen & Helpers, Local 982; Truck Drivers,

Warehousemen and Helpers, Local 898; Teamsters & Ware-

housemen, Local 381, all affiliated with the International

Brotherhood of Teamsters, Chauffeurs, Warehousemen and

Helpers of America; Teamsters, Chauffeurs, Warehouse-

men and Helpers, Local 87, International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of

pe, Se

America (“‘Unions’’) pray that certiorari issue to review

the judgment of the United States Court of Appeals for the

Ninth Circuit in the above-entitled case.

OPINIONS BELOW.

The order of the Ninth Circuit Court of Appeals entered

on March 18, 1983 is not reported.' The order was pursuant

to remand of this Court. This Court’s order granting petition

for writ of certiorari, vacating judgment and remanding to

the Ninth Circuit Court of Appeals is reported at 459 U.S.

., 103 S. Ct. 1172 (1983).?

The original opinion of the Ninth Circuit Court of Appeals

as amended on denial of rehearing and rehearing en banc

remains officially reported at 671 F.2d 305 (9th Cir. 1982).°

The decision and order of the National Labor Relations

Board which has now been enforced in toto is officially

reported at 248 N.L.R.B. 808 (1980).*

JURISDICTION.

On December 21, 1981 the Ninth Circuit Court of Appeals

issued a decision granting enforcement in part of a decision

and order of the National Labor Relations Board (*‘Board’’)

and remanding the case to the Board for consideration of

remedy.

On January 4, 1982 the Unions filed a petition for re-

hearing and suggestion for rehearing en banc.

On March 2, 1982 the Ninth Circuit filed an order denying

the petition for rehearing and suggestion for rehearing en

banc but amending its earlier decision.

'The text of the order is set forth in full in Appendix i.

*The text of this Court's order is set forth in full in Appendix ii.

a EE ES AES Agee

i athens bee te ee ee bi ela a neitln .

inasiibione

On May 14, 1982 the Unions applied to this Court for

an order extending the time in which to petition for cer-

tiorari. On May 18, 1982, the Honorabie William H. Rehn-

quist, Associate Justice of this Court, granted an extension

to July 1, 1982.

On July 1, 1982 the Unions filed their petition for cer-

tiorari raising three questions for review.

On February 22, 1983 this Court entered its order granting

the petition, vacating the judgment of the Ninth Circuit

Court of Appeals and remanding for further consideration

in light of Shepard v. National Labor Relations Board, 459

U.S. ..., 103 S. Ct. 665 (1983).

On March 18, 1983 the Ninth Circuit Court of Appeals

entered its order on remand. In its order, the Court of Ap-

peals reinstated its earlier opinion insofar as it pertains to

two of the questions originally posed for review and resolved

the third question by conforming its opinion to this Court’s

holding in Shepard. In so doing, the Court of Appeals en-

forced in toto the Board’s original order. This Petition seeks

review of the two questions originally posed which remain

unresolved.

The date of entry of judgment is March 18, 1983.

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1254(1) (1976).

STATUTORY PROVISIONS INVOLVED.°

Section 2(3), 29 U.S.C. § 152(3) (1976), of the LMRA

provides in pertinent part:

The term ‘employee’ shall . . . not include any indi-

vidual employed as an agricultural laborer, or in the

domestic service of any family or person at his home,

*The full text of each pertinent statutory provision appears in Appendix

wer a.

or any individual employed by his parent or spouse,

or any individual having the status of an independent

contractor, or any individual employed as a supervisor,

or any individual employed by an employer subject to

the Railway Labor Act, as amended from time to time,

or by any other person who is not an employer as herein

defined [ernphasis added].

Section 8(e), 29 U.S.C. § 158(e) (1976), makes it an

unfair labor practice for a union and an employer to enter

into an agreement that requires self-employed persons to

join the union in order to work for the employer:

It shall be an unfair labor practice for any labor or-

ganization and any employer to enter into any contract

. . whereby such employer . . . agrees to cease. . .

doing business with any other person. . . .

The section is limited by the following:

Provided, That nothing in this subsection 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.

It is a separate unfair labor practice pursuant to Section

8(b)(4)(ii(A), 29 U.S.C. § 158(b)(4)(ii)(A) (1976), for a

union to exert coercion in an effort to force or require an

employer to enter into an agreement which is prohibited by

Section 8(e):

It shall be an unfair labor practice for a labor organi-

zation . . . (ii) to threaten, coerce, or restrain any per-

son 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-em-

ployed person . . . to enter into any agreement which

is prohibited by subsection (e) of this section... .

mew Oo

STATEMENT OF THE CASE.

A. Preliminary Statement.

This case most recently came to the Ninth Circuit on

remand from this Court. Previously, the case had been be-

fore the Ninth Circuit on cross-petitions for enforcement

and review of a decision and order of the Board.

At all times, the Ninth Circuit’s jurisdiction has been

based upon 29 U.S.C. § 160(e) and (f) (1976).

B. Statement of Facts.

1. The Master Labor Agreement.

The Unions and the Associated General Contractors of

California, Inc. (“‘AGC’’), the Building Industry Associ-

ation of California (“‘BIA’’), the Engineering Contractors

Association (“‘ECA’’) and the Southern California Con-

tractors Association (‘“‘SCCA’’) entered into a collective

bargaining agreement known as the Southern California

Master Labor Agreement (‘‘MLA’’) on or about July 1,

1977. The MLA was entered into by the Unions on behalf

of covered employees and by the AGC, BIA, ECA and

SCCA on behalf of their employer-members in the con-

struction industry in Southern California, excluding San

Diego County.

The MLA required all employer-members to carry owner-

operators® on their payroll as employees and to apply all

terms and conditions of the MLA, including the union se-

curity provisions, to owner-operators.

Certain terms and conditions of the MLA, when applied

to owner-operators, were found by the Board to be violative

*An owner-operator is defined by the MLA as ‘‘an individual that

holds legal or registered title to a motor vehicle or to the power equip-

ment unit thereof in his name and who personally drives such vehicle

or unit in the performance of work covered by this Agreement.”’ Article

XII, Section 1300. See Appendix vi, infra.

of Section 8(e) of the LMRA and not protected by the

construction industry proviso to Section 8(e).’ The Board

found the relevant provisions to be secondary because owner-

operators had been declared by the Ninth Circuit to be in-

dependent contractors in an earlier case and it found the

scope of the provisions to be overbroad because they were

not limited to work performed solely at the geographical

site of construction.

2. The Owner-Operators.

Owner-operators perform loading, hauling and unloading

of construction materials for employer-members using dump-

truck equipment. The equipment varies, but often includes

a tractor, semitrailer, truck and transfer trailer, a tractor

with a bottom dump trailer, semibottom dump trailer or a

truck and pup trailer. Some of the equipment used by owner-

operators is leased.

Employer-members utilize owner-operators for all types

of construction projects. However, their basic function is

the same: loading, hauling and unloading of materials on

and between jobsites. In some instances all their work is

performed at the geographical site of construction; at other

times it includes travel away from jobsites for dumping and

hauling materials from ‘*borrow pits’’ to jobsites.

In some instances, employer-members supplement their

regular hauling needs by using owner-operators together

with other drivers utilizing company-owned trucks to work

on the same construction project at the same time as owner-

operators. In those instances, owner-operators work side-

by-side with the other drivers, observing the same starting

and quitting times and breaks and following the same some-

"Relevant provisions of the MLA are set forth in full in Appendix

vi.

what detailed instructions given by the employer-members’

supervisory personnel who oversee the performance of all

drivers working on the jobsite. If they fail to observe the

instructions, they are subject to the same disciplinary action

as other drivers.

In most cases, owner-operators have not contracted di-

rectly with employer-members. Instead, they are brought to

jobsites of employer-members by brokers who contract di-

rectly with employer-members and have subhaul arrange-

ments with owner-operators.

The California Public Utilities Commission tariff estab-

lishes minimum hourly rates normally received by owner-

operators. However, there are instances where they have

received a higher hourly rate.

3. Related Decisions.

Owner-operators were historically covered by successive

MLA’s without serious dispute over their employment status

for many years before this controversy arose.

Then, in 1965, Associated Independent Owner-Operators

(‘‘AIOO’’), a voluntary association representing a minority

of owner-operators, first filed unfair labor practice charges

with the Board alleging violations of Section 8(b)(4)(ii)(A)

of the LMRA against the Unions. In pertinent part, AIOO

alleged that the Unions had engaged in unlawful secondary

conduct to compel owner-operators to become union mem-

bers by coercing employer-members to cease doing business

with owner-operators who were not union members. The

basis for the allegation was AIOO’s contention that owner-

operators were independent contractors and were not em-

ployees within the meaning of Section 2(3) of the Act.

The Board had not previously considered the employment

status of owner-operators® although, in an earlier case, it

had ruled that other owner-operators (not doing hauling

work) were employees rather than independent contractors.’

Thus, in 1970 the Board first examined the employment

status of the same owner-operators involved in this case. It

concluded that they were not independent contractors but

were employees.'°

AIOO obtained review of the Board’s decision in the

District of Columbia Circuit Court of Appeals. The D.C.

Circuit reviewed the evidence and legal standard applied by

the Board and affirmed the Board’s holding that owner-

operators were employees.’

Review of the D.C. Circuit holding was not sought in

this Court. Instead, in 1971 some owner-operators supported

petitions to decertify the Unions as their bargaining repre-

sentative with the Board. In their petitions, those owner-

operators asserted, contrary to the Board and the D.C. Cir-

cuit, that they were independent contractors. Alternatively,

they argued that in the event the Board again found them

to be employees, a substantial number of them no longer

wished to be represented by the Unions.

"Under California law the question has been settled for fifty years.

In California courts, the ey sey are employees. Chapman v.

Edwards, 133 Cal. App. 72, 24 P.2d 211, 214 (1933).

*Operating Engineers, Local 12 (Associated Independent Owner-

Operators, Inc.), 168 N.L.R.B. 863 (1967).

"General Teamsters, Local 982 (J.K. Barker Trucking Co.), 181

N.L.R.B. 515 (1970).

Note, that the Board's decision was made with due regard for the

Ninth Circuit's decision on review of the at Engineers case

(supra n. 7), re that case. See n. 5 in 181 N.L.R.B. 515 (1970),

citing Associated | ndent Owner-Operators, Inc. v. NLRB, 407

F.2d 1383 (9th Cir. 1969

“ he Council of Teamsters No. 42 v. NLRB, 450 F.2d 1322 (D.C.

ir. 1971).

a” ee

Again, the Board independently reconsidered the status

of the same owner-operators and again concluded that they

were employees.’ A direction of election was subsequently

issued on March 5, 1974."

The existing MLA was due to expire on June 30, 1974.

Consequently, the Unions and the AGC, BIA, ECA and

SCCA entered into negotiations and, on July 1, 1974,

executed a new MLA.

Because the new MLA covered owner-operators and be-

cause the elections pre viously directed by the Board had not

yet been held, AIOO filed new unfair labor practice charges

against the AGC, BIA, ECA and SCCA alleging unlawful

assistance to the Unions pursuant to Section 8(a)(1) and (2)

of the LMRA. 29 U.S.C. § 158(a)(1) and (2) (1976). The

charges blocked further processing of the election.

The Board found that unfair labor practices had been

committed"* and cross-petitions for enforcement and review

were filed in the Ninth Circuit. The Ninth Circuit thereupon

abruptly substituted its judgment for the studied, twice-

considered judgment of the Board and the D.C. Circuit and

transformed the same owner-operators previously found to

be employees into independent contractors.'° Ironically, the

Ninth Circuit referred to the Board and D.C. Circuit as

having been ‘‘blinded’’ in their earlier appraisals. '°

"Contractor Members of the Associated General Contractors of

California, Inc., 201 N.L.R.B. 311 (1973).

"Contractor Members of the Associated General Contractors of

California, Inc., 209 N.L.R.B. 363 (1974).

‘Associated General Contractors of California, Inc. (Teamsters, Lo-

cal 94), 220 N.L.R.B. 540 (1975). But cf. RCA Del Caribe, Inc., 262

N.L.R.B. No. 116 (1982) (similar conduct would probably not now

constitute an unfair labor practice).

'SAssociated General Contractors of California, Inc. v. NLRB, 564

F.2d 271 (9th Cir. 1977).

"See AGC v. NLRB, supra 564 F.2d at 282 n. 11.

— i

The Ninth Circuit remanded the unfair labor practice case

to the Board and the Board consolidated it with the election

cases which had been held in abeyance. The Board then

issued a terse supplemental decision and order in which it

automatically accepted the Ninth Circuit’s view as the ‘‘law

of the case’’ (even though not the Board’s law) and dis-

missed all outstanding proceedings."’

The Unions had no opportunity to seek review of the

Ninth Circuit’s decision because they were technically

prevailing parties.'*

4. The Present Controversy.

This abrupt turn of events triggered the filing of the instant

unfair labor practice charges alleging that certain provisions

of the MLA executed on July 1, 1977 violated Section 8(e).

C. Proceedings and Disposition Below.

The Unions argued before the Board that owner-operators

were employees and, alternatively. that the pertinent pro-

visions of the MLA were within the scope of the construction

industry proviso to Section 8(e). The Board refused to re-

view the status of owner-operators and found the provisions

overboard.

Upon review, the Ninth Circuit affirmed the Board’s re-

fusal to reconsider the employment status of owner-opera-

tors and affirmed the Board’s conclusion that the proviso

was inapplicable. Contrary to the Board, however, the Ninth

Circuit concluded that a make-whole remedy was appro-

"Associated General Contractors of California, Inc., 239 N.L.R.B.

686 (1978).

"The Unions had opposed the election petitions and had intervened

in the unfair labor practice proceedings on the side of the Respondent

employers seeking dismissal of the petitions because of the lack of a

question concerning representation and seeking dismissal of the unfair

labor practice charges.

priate and remanded the case to the Board.

The Unions, for the first time in a position to seek review,

then filed their petition for certiorari seeking review of the

employment status of owner-operators, the scope of the

construction industry proviso to Section 8(e) and the pro-

priety of a make-whole remedy. While their petition was

pending, this Court issued its decision in Shepard v. Na-

tional Labor Relations Board, 459 U.S. . . ., 103 S. Ct.

665 (1983) holding that the Board’s decision not to seek a

make-whole remedy absent evidence of actual coercion

should not be disturbed.

Shortly thereafter, this Court granted the Unions’ petition,

vacated the Ninth Circuit’s judgment and remanded the case

for reconsideration in light of Shepard.

Most recently, on March 18, 1983, the Ninth Circuit

reinstated its opinion on the employment status of owner-

operators and the scope of the construction industry proviso

to Section 8(e), amended its opinion, in conformity with

Shepard, to deny a make-whole remedy, and enforced the

Board’s original order in toto.

The Unions now seek review of the Ninth Circuit’s de-

cision and judgment on the employment status of owner-

operators and the scope of the construction industry proviso

to Section 8(e).

ene | Ome

ARGUMENT.

This writ should be allowed for the following reasons:

There Now Exists an Express Conflict Among the Cir-

cuits as to Whether Owner-Operators Are Employ-

ees Within the Meaning of Section 2(3) of the LMRA.

After more than a decade of controversy, the Unions,

employer-members and owner-operators have no final res-

olution of their dispute.

Twice the Board independently considered the employ-

ment status of owner-operators. After developing a full ev-

identiary record in each case and after carefully applying

its precedents in each case, it found them to be employees

within the meaning of the LMRA.

Upon review of the Board’s interpretation, the applicable

canon of statutory construction requires that ‘‘the construc-

tion of a statute by those charged with its execution should

be followed unless there are compelling indications that it

is wrong... .’’ Red Lion Broadcasting Co. v. FCC, 395

U.S. 367, 381, 89 S. Ct. 1794, 1802 (1969). That canon

has particular applicability to cases where the Board con-

strues the scope of Section 2(3). See NLRB v. Hendricks

County Rural Electric Membership Corp., 102 S. Ct. 216,

222 (1981); NLRB v. Bell Aerospace Co., 416 U.S. 267,

275, 94 S. Ct. 1757, 1762 (1974). Such matters of inter-

pretation flow from the Board’s broad authority, under Sec-

tion 9(b) of the LMRA, 29 U.S.C. § 159(b) (1976), to

determine the scope of appropriate collective bargaining

units. Packard Motor Car Co. v. NLRB, 330 U.S. 485,

491, 67 S. Ct. 789, 793 (1947).

Thus, where the Board has previously determined that

certain persons are employees rather than independent con-

tractors, ‘‘[s]uch a determination should not be set aside

Pay Y ee

just because a court would, as an original matter, decide

the case the other way.’’ NLRB v. United Insurance Co.,

390 U.S. 254, 260, 88 S. Ct. 988, 991 (1968).

Here, the Board compounded the Ninth Circuit’s first

error in Associated, supra, 564 F.2d at 282 (substituting its

judgment for the Board’s) by automatically yielding to the

Ninth Circuit without further investigation and in complete

disregard of its statutory responsibility. In doing so, the

Board denied to the Unions procedural due process just as

it did to United Insurance Company prior to this Court’s

review. See United Insurance Co. v. NLRB, 272 F.2d 446,

449 (7th Cir. 1959) (previous Board decision in represen-

tation matter adverse to employer ‘‘could not serve as a

substitute for evidence’’ in subsequent unfair labor practice

matter where employer had no opportunity to seek review

of adverse decision).

Moreover, the Ninth Circuit’s present decision is simply

an echo of its first error and firmly reinstates an express

conflict with the D.C. Circuit’s holding on precisely the

same subject in Joint Council of Teamsters No. 42 v. NLRB,

450 F.2d 1322 (D.C. Cir. 1971)."”

Because of this ‘‘unusually direct conflict between two

circuits,’’ the Unions respectfully request that certiorari

issue. Corning Glass Works v. Brennan, 417 U.S. 188,

191, 94S. Ct. 2223, 2226 (1974).

"The D.C. Circuit has continued to adhere to its decision where

applicable. See Local 777, Democratic Union Organizing Committee

v. NLRB, 603 F.2d 862, 899 n. 29 (D.C. Cir. 1978). But cf. Building

Material and Dump Truck Drivers, Local 36 v. NLRB, 673 F.2d 550

(D.C. Cir. 1982), (construing language of the San Diego MLA

not applicable to this case), aff'd., sub nom. Shepard v. NLRB, 459

U.S. ..., 103 S. Ct. 665 (1983).

— }.

Il.

This Case Raises an Important Question Concerning the

Scope of the Construction Industry Proviso Which

Has Not Been Settled by This Court.

Based upon its original finding that owner-operators were

independent contractors, the Ninth Circuit affirmed the

Board’s finding that provisions of the MLA requiring union

membership were secondary when applied to owner-

operators.

The Unions agreed that if owner-operators were inde-

pendent contractors, the provisions were secondary but ar-

gued that the provisions were protected by the proviso to

Section 8(e) which excepts ‘‘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... .”’

The Board found the proviso inapplicable because some

owner-operators do not do all their work at the geographical

site of construction: ‘“The primary purpose of the construc-

tion industry proviso — to avoid tensions among groups of

employees at the same site — has little relevance to persons

having such incidental contact with the site . . . [w]e find

that such work is not . . . within the meaning of the . . .

proviso. ’’”°

The Ninth Circuit simplified the Board’s holding: ‘‘On

these facts, the Board found that the owner-operators are

delivery persons, not construction site workers, and there-

*See infra, Appendix ii.

fore their work is not covered by the on-site proviso’’*' and

affirmed.

Last term, this Court observed that ‘‘the proviso is only

partly concerned with jobsite friction.’’ Woelke & Romero

Framing, Inc. v. NLRB, 456 U.S. . . ., 102 S. Ct. 2071,

2081 (1982). More important than physical proximity is the

clear Congressional intent to shield from Section 8(e) agree-

ments not to subcontract construction work to nonunion

contractors. /d. at 2079. Simultaneous physical presence on

the jobsite (e.g., ‘‘cheek-by-jowl’’ proximity) need not be

given conclusive weight. See Donald Shriver Inc. v. NLRB,

635 F.2d 859, 883-84 (D.C. Cir. 1980) (‘‘the entire thrust

of the proviso . . . is that craft work on a construction site

cannot be treated as isolated and removed from other craft

work’’). Thus, because work performed by owner-operators

originates at the jobsite and is controlled from the jobsite,

the applicability of the proviso should not depend upon the

quantity of physical presence but upon the quality of the

relationship between owner-operators and other crafts work-

ing on the same construction job. Such an appraisal will not

‘ignore the realities of employment situations on a con-

struction jobsite’’, Jd. at 883, as does the Ninth Circuit’s

here.

The reality here, which has been ignored to date, is that

uncontrolled use of owner-operators has created a serious

"'See infra, Appendix i. Note that the Ninth Circuit's characterization

of owner-operators as Ry ty hone ol is plainly wrong and contrary

to the Board’s decision. The did not conclude that owner-oper-

ators were ‘‘delivery — Rather, the Board analogized its prior

holdings regarding delivery persons to owner-operators and concluded

that the same result was warranted. ‘*‘Delivery persons’’ in those cases

analogized by the Board, are distinctly unlike owner: whose

work assignments originate at the site of construction and who are under

the continuous, routine control of jobsite contractors. These factors

critically distinguish owner-operators from ‘‘delivery persons."’

iaiitine

threat to long established employment standards in the con-

struction industry and has allowed work historically as-

sumed to be construction work to be done by union workers

alongside non-union workers on the same construction jobs

at the same time. The Unions assert that these are the very

evils intended by the proviso to be prevented.

An important question of federal labor law is presented

which is deserving of this Court’s consideration.

Il.

Conclusion.

For the foregoing reasons, the Unions respectfully request

that certiorari issue to review the decision below.

Respectfully submitted,

GEORGE A. Pappy,

RALPH M. PHILLIPS,

PAPPY, KAPLON, VOGEL & PHILLIPS,

By RALPH M. PHILLIPS,

Attorneys for Petitioners Joint Council of

Teamsters No. 42, and its affiliated

local unions, Sales Drivers & Dairy

Employees, Local 166; General Truck

Drivers, Local 235; General Truck

Drivers, Chauffeurs & Helpers Local

692; Chauffeurs, Teamsters and

Helpers, Local 186; Building Material

and Dump Truck Drivers, Local 420;

General Teamsters, Chauffeurs,

Warehousemen & Helpers, Local 982;

Truck Drivers, Warehousemen and

Helpers, Local 898; Teamsters &

Warehousemen, Local 381, all

affiliated with the International

Brotherhood of Teamsters,

om’

Chauffeurs, Warehousemen and

Helpers of America; Teamsters,

Chauffeurs, Warehousemen and

Helpers, Local 87, International

Brotherhood of Teamsters,

Chauffeurs, Warehousemen and

Helpers of America.

APPENDIX i.

Order.

United States Court of Appeals

for the Ninth Circuit.

Joint Council of Teamsters, No. 42, et al., Petitioners,

National Labor Relations Board, Respondent, Associated

Independent Owner-Operators, Inc., Intervenor.

National Labor Relations Board, Petitioner,

Building Material and Dump Truck Drivers, Local 420,

et al., Respondents. Associated Independent Owner-

Operators, Inc., Associated General Contractors of

California, Inc., California Dump Truck Owners

Association, Intervenors.

California Dump Truck Owners Association, Petitioner,

National Labor Relations Board, Respondent, Associated

Independent Owner-Operators, Inc., Intervenor.

Nos. 80-7455, 80-7456, and 80-7457.

FILED: March 18, 1983.

Before: ELY and NORRIS, Circuit Judges, and COP-

PLE,* District Judge.

The opinion in the above-named case, which appears at

671 F.2d 305 (9th Cir. 1981), is ordered amended as follows:

Delete the entire portion of the opinion following the first

paragraph of part II. In its place, substitute:

In cases involving a violation of § 8(e), however, it

is within the Board’s discretion to deny reimbursement

*The Honorable William P. le, United States District Judge for

the District of Arizona, sitting by designation.

on ee

when there is no finding of actual coercion. Shepard

v. NLRB, 51 U.S.L.W. 4087 (Jan. 18, 1983).

The order of the Board is ENFORCED.

West Publishing Company is requested to delete all ref-

erences to the opinion appearing at 671 F.2d 305 and to

reprint the opinion as amended in its entirety.

dia bine

APPENDIX ii.

Supreme Court of the United States,

Office of the Clerk,

Washington, D.C. 20543

February 22, 1983

Mr. Ralph M. Phillips

Pappy, Kaplon, et al.

1545 Wilshire Blvd., Suite 211

Los Angeles, Calif. 90015

Re: Joint Council of Teamsters No. 42, et al.,

v. National Labor Relations Board, et al.

No. 82-3

Dear Mr. Phillips:

The Court today entered the following order in the above

entitled case:

The petition for a writ of certiorari is granted. The judg-

ment is vacated and the case is remanded to the United

States Court of Appeals for the Ninth Circuit for further

consideration in Light of Shepard v. National Labor Rela-

tions Board, 459 U.S. . . . (1983).

Very truly yours,

Alexander L. Stevas, Clerk

coals

APPENDIX iii.

Opinion.

Joint Council of Teamsters, No. 42, et al., Petitioners,

National Labor Relations Board, Respondent, Associated

Independent Owner-Operators, Inc., Intervenor,

National Labor Relations Board, Petitioner,

Building Material and Dump Truck Drivers, Local 420,

et al., Respondents. Associated Independent Owner-

Operators, Inc., Associated General Contractors of

California Dump Truck Owners

Association, Intervenors.

California Dump Truck Owners Association, Petitioner,

National Labor Relations Board, Respondent. Associated

Independent Owner-Operators, Inc., Intervenor.

Nos. 80-7455, 80-7456 and 80-7457.

Argued and Submitted Aug. 7, 1981. Decided Dec. 21.

1981.

As Amended on Denial of Rehearing and Rehearing En

Banc March 2, 1982.

Before ELY and NORRIS, Circuit Judges, and COPPLE,*

District Judge.

NORRIS, Circuit Judge:

We are called upon in this case to review an order of the

NLRB declaring a provision in a collective bargaining agree-

ment to be an unfair labor practice under § 8(e) of the

National Labor Relations Act, 29 U.S.C. § 158(e) (1976).

*The Honorable William P. ry om United States District Judge for

the District of Arizona, sitting by designation.

ea Se

The Board invalidated article XIII of the Master Labor

Agreement between unions and contractor-employers in the

Southern California construction industry because it pro-

hibited general contractors from hiring non-union dump-

truck owner-operators. The unions petition to deny enforce-

ment of the Board’s order, and the Board seeks a judgment

of enforcement.' The owner-operators seek an order di-

recting the Board to grant a make-whole remedy requiring

the unions to reimburse them for initiation fees and dues

paid to the unions, and for income lost by those truck owners

who were denied work. We enforce the Board’s order, but

remand with directions to the Board to fashion a make-

whole remedy or show cause why a make-whole remedy is

inappropriate.

Section 8(e) prohibits agreements between unions and

employers that require a self-employed person to join the

union in order to work for the employer A construction

industry proviso to § 8(e) carves out an exception for ‘‘work

to be done at the site of the construction.”’ Our inquiry is

'The general contractors intervene in support of the Board's position;

they are represented by the Associated General Contractors of Califor-

nia, Inc., the Building Association of California, the Engineering

Contractors Association on, the Southern California Contractors As-

sociation. The unions include the Joint Council of Teamsters No. 42,

et al. The truck owners are represented by the California Dump Truck

Owners Association and the Associated I Owner-Operators,

Inc. The proceedings below are at Joint Council of Teamsters

No. 42, et al., 248 N.L.R.B., (1980).

Ber 8(e) oe ee eae a Act, 29 U. re § 158(e)

( ), provides “It an unfair labor practice labor

ee pS ST gn bm

person... P , that ing in phe

agreement between a rapa

to be done at the site of the pad ae,

po XE

whether the Board erred in ruling that the operation of the

owner-operated dump trucks in question is not on-site work

within the meaning of the § 8(e) proviso.”

The facts are not in dispute. The dump truck operators

haul materials from construction sites to remote dump sites,

from ‘‘borrow’’ pits to construction sites, and from one

construction site to another construction site. The truck own-

ers spend most of their time on public roads away from the

construction site. The only time spent at the construction

site is during loading and unloading, when the dump truck

operator ordinarily remains in his vehicle. See Joint Council

of Teamsters No. 42, et al., 248 N.L.R.B. 808, 816-17

(1980).

On these facts, the Board found that the owner-operators

are delivery persons, not construction site workers, and

therefore their work is not covered by the on-site proviso.

That finding is consistent with Board findings in similar

cases involving delivery of goods to a construction site. See

Drivers Local 695 v. NLRB, 361 F.2d 547, 552 n.19 (D.C.

Cir. 1966). In doubtful situations, we give weight to the

Board’s application of the Act, NLRB v. Denver Building

and Construction Trade Council, 341 U.S. 675, 692, 71

S.Ct. 943, 953, 95 L.Ed. 1284 (1951); where, as here, the

situation is not doubtful, we readily enforce the Board’s

order.

None of the unions’ arguments against the Board’s order

is persuasive. First, they cite this circuit's recent interpre-

tation of the on-site proviso in Pacific Northwest Chapter

*As.« ‘reliminary matter, the unions argue that the dump-truck owner-

pe calheyse yy natin ane * gree tents Ny me

held, but employees of the general contractor. This is fore-

closed, however, by Associated General Contractors of California, Inc.

v. NLRB, 564 F.2d 271 (9th Cir. 1977), in which court held that

these same dump-truck owners are independent contractors.

Ban, a

of the Associated Builders and Contractors, Inc. v. N.L.R.B.,

654 F.2d 1301 (9th Cir.) (en banc), cert. granted, —_—

U.S. __, 102 S.Ct. 90, 69 L.Ed.2d__ (1981). That case

is not on point. The only issue decided in Pacific Northwest

was whether the § 8(e) proviso ‘‘renders lawful clauses in

collective bargaining contracts forbidding the employers to

subcontract work at any construction site to a firm not

having a contract with the signatory union.’’ 654 F.2d at

1304 (emphasis added). In Pacific Northwest, where it was

undisputed that the workers were engaged in on-site work,

the court recognized that ‘‘the construction industry proviso

narrowed the geographical scope of the [rule allowing sec-

ondary tactics] by introducing the jobsite limitation.’’ 654

F.2d at 1313.

Second, the unions compare the on-site proviso in § 8(e)

to an on-site proviso in the Davis Bacon Act (concerning

minimum wages for construction workers on government

contracts), arguing that the Federal Wage Appeals Board

has held that it includes transportation between a construc-

tion site and a remote dump site. See T. L. James & Co.,

Wage Appeals Board Case No. 69-2 (Aug. 13, 1969). We

question the unions’ reading of T. L. James. The Wage

Appeals Board only held that a remote dump site or borrow

pit is a part of the construction site. Slip op. at 6. The Board

did not explicitly address the issue of transportation between

the main site and the remote site. Moreover, we reject the

unions’ comparison of the two Acts. Neither the legislative

history nor the text of the statute suggests that Congress

intended § 8(e) to parallel the Davis Bacon Act.

Third, the unions rely on a Ninth Circuit affirmance of

an arbitration award where, in the process of interpreting a

provision in a collective bargaining agreement, the arbitrator

determined that transportation between a construction site

and a supply site was on-site work within the meaning of

Pa. oe

§ 8(e). See La Mirada Trucking, Inc. v. Teamsters Local

Union 166, 538 F.2d 286, 288 (9th Cir. 1976), cert. denied,

429 U.S. 1062, 97 S.Ct. 787, 50 L.Ed.2d 778 (1977). That

decision has little bearing on the case before us. In

La Mirada, the court did not interpret the on-site proviso

to § 8(e); the court merely held reasonable the arbitrator’s

interpretation of a provision in a collective bargaining agree-

ment, which the parties had stipulated to be identical to the

on-site proviso of § 8(e). 538 F.2d at 289. Thus, the La

Mirada court did not hold as a matter of law that trans-

portation between a supply site and a construction site fits

within the construction industry proviso.

II.

The truck owners claim that the Board’s cease and desist

order is an inadequate remedy. They contend that the Board

should also order reimbursement of initiation fees and dues

that the truck owners had paid to the union plus compen-

sation for income lost to those truck owners who were denied

work.

Although § 10(c) of the Act* vests broad discretion in the

Board to fashion remedies that effectuate the policies of the

Act, see Fibreboard Paper Products Corporation v.

N.L.R.B., 379 U.S. 203, 216, 85 S.Ct. 398, 405, 13 L.Ed.2d

233 (1964), that discretion is not unlimited. See Acco Con-

struction Equipment, Inc. v. N.L.R.B., 511 F.2d 848, 852

(9th Cir. 1975). In cases where money has been collected

illegally, the Board should order a refund, absent some

rational ground for not doing so. Jd. We hold that the Board

has failed to offer a rational ground for refusing to order

reimbursement in this case.

“Section 10(c) of the Act, 29 U.S.C. § 160(c) (1976), provides that

‘*the Board shall . . . take such affirmative action . . . as will effectuate

the policies of this subchapter.”’

alii

The Board’s principal reason for denying reimbursement

is that the unions neither directly coerced the dump truck

Owner-operators to pay union fees nor illegally coerced the

general contractors to accept article XIII in the collective

bargaining agreement.° Either form of coercion would have

constituted a violation of § 8(b)(4) of the Act.® Although

the Board ruled that article XIII violated § 8(e) of the Act,

it reasoned that reimbursement is inappropriate in the ab-

sence of a § 8(b)(4) violation.

We reject the Board’s reasoning that the purposes of the

Act are effectuated by reimbursement for violations of

§ 8(b)(4), but not for violations of § 8(e).’ To be sure,

*The Board offered the following explanation for its denial: ‘‘We

hereby deny the Charging Party CDTOA’s request that we require

Respondent Unions to reimburse any owner-operators for payment of

initiation fees and dues, deducted contributions to union benefit funds,

or income lost by reason of the enforcement of unlawful terms in MLA

art. XIII. The Board has on one occasion adopted without comment an

administrative law judge’s recommended Order containing such a rem-

edy. Local 814, Teamsters (Santini Brothers, Inc.), {208 N.L.R.B.] at

201. In the present case, however, no evidence has been introduced

with respect to alleged losses directly attributable to actual coercion

by Respondent Unions, nor has the remedial issue been expressly liti-

gated. Furthermore, we find a reimbursement order, typically used to

‘“‘make whole’’ employees for violations of the Act, to be generally

overly broad and inappropriate in the context of 8(e) violations. We

note that aggrieved owner-operators engaged in business as independent

contractors may pursue a damage claim under Sec. 303 of the Act. For

the foregoing reasons, we find that the reimbursement of owner-oper-

ators requested by CDTOA would not effectuate the remedial policies

of the Act. See Local 60, United Brotherhood of Carpenters and Joiners

of America, AFL-CIO, et al. v. N.L.R.B., 365 U.S. 651, 81 S.Ct. 875,

6 L.Ed.2d 1 (1961).’” 248 N.L.R.B. at 817 n. 34.

°29 U.S.C. § 158(b)(4) (1976).

’The NLRB claims that the Board has ‘‘consistently’’ declined to

= make-whole remedies in cases involving only violations of § 8(e).

s , the NLRB relies on Newspaper and Periodical Drivers

and a Union v. N.L.R.B., 509 F.2d 99 (9th Cir. 1974), cert.

denied, 423 U.S. 831, 96 S.Ct. 51, 46 L.Ed.2d 48 (1975). In that case,

however, the court merely held that the Board did not abuse its discretion

in denying back pay to independent contractors terminated in violation

of § 8(e). Moreover, the Board’s own decision in Newspaper Drivers

offers no explanation for denying a make-whole remedy. See Newspaper

and Periodical Drivers’ Helpers Union Local 921, 204 N.L.R.B.

oa 448 Aap Thus, neither the xe gegen es ag ne

ircuit’s bri irmance, provides support for a per se ying

reimbursement in § 8(e) cases.

reimbursement is inappropriate in the absence of coercion.

See Local 60, United Brotherhood of Carpenters v.

N.L.R.B., 365 U.S. 651, 655-56, 81 S.Ct. 875, 877-78, 6

L.Ed.2d 1 (1961).* But when an unlawful collective bar-

gaining agreement is itself coercive, there is no logical rea-

son for denying reimbursement because of the absence of

a technical § 8(b)(4) violation. Article XIII presented the

truck owners with the grim choice of joining the union or

foregoing work with the signatory employers. Although the

unions may not have employed coercive tactics, violative

of § 8(b)(4), the inclusion of article XIII in the collective

bargaining agreement would necessarily have had the effect

of coercing otherwise reluctant truck owners to join the

union.’ See Sheraton-Kauai Corp. v. N.L.R.B., 429 F.2d

1352, 1357 (9th Cir. 1970).

We are unable to distinguish this case from two cases in

which the Board ordered restitution to parties who joined

‘In Local 60, the Board had ordered reimbursement of union fees

and dues paid while an ille = closed-shop preferential hiri a

remained in effect. The Court refused to enforce the

because it found no evidence that union membership had been coerced.

The Court emphasized that persons affected by the order were already

Nery me gh gb, alge dad question, and that no one

ined the union ificall obtain work on that job. 365 U.S.

at y , 81 S.Ct. at 877. Thus, | Sa 60 is readily distinguishable from

the case before us.

*The Board stated that ‘‘no evidence has been introduced with respect

to alleged losses directly attributable to actual coercion by Respondent

Unions.’’ 248 N.L.R.B. at 817 n.34 (emphasis added). We read the

Board’s statement as merely a finding that the unions did not directly

confront truck owners and force them to join the union. Admittedly,

the statement might be interpreted as an evidentiary ruling that the truck

owners offered no proof that individuals had } the union as a result

of article XIII, as was the case in Local 60, United Brotherhood of

Carpenters v. N.L.R.B., 365 U.S. 651, 81 S. Ct. 875, 6 L.Ed.2d 1

(1961). We doubt, however, that the Board intended that meaning,

since the record shows that at every available juncture the truck owners

fought the unions’ attempt at unionization. See Associated General

am of California, Inc. v. N.L.R.B., 564 F.2d 271 (9th Cir.

unions pursuant to illegal collective bargaining agree-

ments.'° See Sheraton-Kauai Corp., 177 N.L.R.B. 25

(1969), enforced, 429 F.2d 1352, 1357-58 (9th Cir. 1970).

Local 814, Teamsters (Santini Brothers) 208 N.L.R.B. 184

(1974), enforced, 546 F.2d 989 (D.C.Cir. 1976), cert. de-

nied, 434 U.S. 818, 98 S.Ct. 56, 54 L.Ed.2d 73 (1977).

In Santini Brothers, by staging a walkout, the union

coerced the employer to accept a restrictive collective bar-

gaining agreement; enforcement of that agreement, in turn,

coerced independent truckers to join the union. The Board

found violations of both § 8(b)(4) and § 8(e), and ordered

reimbursement to the independent truckers.

We are not persuaded that the § 8(b)(4) violation in San-

tini Brothers justifies granting restitution in that case, while

denying it here. The Board would have restitution turn on

the union’s use of a coercive tactic, violative of § 8(b)(4),

to persuade the employer to accept a restrictive provision.

The relevant inquiry, however, is whether the truck owners,

irrespective of any coercion of the employer, were coerced

into union membership by an unfair labor practice.

The Board implicitly recognized this principle in Sheraton-

Kauai. In that case, the employer and union illegally ex-

tended a union security clause in a collective bargaining

agreement to employees of a new hotel, thus denying the

employees an opportunity to resolve the question of union

representation for themselves. The union did not coerce the

employer in violation of § 8(b)(4); nor did the union directly

coerce the employees. Nonetheless, the Board ordered res-

titution after finding that, by ‘‘submitting [the employees]

to the terms and conditions of the . . . agreement,’’ the

"The Board cannot arbitrarily impose different remedies in similar

situations. See Burinskas v. NLRB, 357 F.2d 822, 827 (D.C.Cir. 1966)

(“‘nor can [the Board] treat similar situations in dissimilar ways’’).

Say Re

union effectively coerced the employees into union mem-

bership. 177 N.L.R.B. at 29.

Reimbursement in this case, as in Sheraton-Kauai and

Santini Brothers, would effectuate the policies of the Act

by returning to the truck owners money paid to support a

union they did not freely choose to join, and by depriving

the unions ©! the benefit of their unfair labor practice. See

Virginia Electric and Power Company v. N.L.R.B., 319

U.S. 533, 541, 63 S.Ct. 1214, 1219, 87 L.Ed. 1568 (1943);

Graphic Arts International Union Local 280 v. N.L.R.B.,

596 F.2d 904, 910 (9th Cir. 1979)."'

We find unpersuasive the other reasons offered by the

Board for denying reimbursement.

First, we are confused by the Board’s contention that the

remedial issue was not expressly litigated. The truck owners

raised the remedy issue in their brief to the Board as charging

party. To the extent that factual issues remain — such as

the amount of damages — they can be resolved in an NLRB

proceeding. See N.L.R.B. v. Local 776, Film Editors, 303

F.2d 513, 521 (9th Cir.), cert. denied, 371 U.S. 826, 83

S.Ct. 47, 9 L.Ed.2d 65 (1962).

Next, the Board said that the truck owners had an alter-

native remedy under § 303. It would be wasteful and unfair

to force the truck owners, who have opposed unionization

"Counsel for the NLRB far etn that reimbursement would result

in unjust windfalls to the owners who may have benefited from

becoming signatories to the union. To the extent that the truck owners

received actual benefits in return for their fees and dues, the value of

these benefits may be deducted from the amount of reimbursable dam-

ages. We see no reason, however, to deny the truck owners the op-

portunity to show that they paid fees that did not lead to benefits. The

ee ee

tigated.

—;

in legal proceedings for ten years, see Asosociated General

Contractors of California, Inc. v. N.L.R.B., 564 F.2d 271

(9th Cir. 1977), to renew the battle in a § 303 proceeding.

Moreover, we see no reason to burden a federal district

court with § 303 litigation, when reimbursement can be

ordered in an NLRB proceeding. Cf. Sheraton-Kauai

Corporation v. N.L.R.B., 177 N.L.R.B. 25 (1969) (by

implication) (ordering reimbursement where a § 303 remedy

might have been available), enforced, 429 F.2d 1352 (9th

Cir. 1970); Local 814, Teamsters (Santini Brothers) 208

N.L.R.B. 184 (1974) (same), enforced, 546 F.2d 989 (D.C.

Cir. 1976), cert. denied, 434 U.S. 818, 98 S.Ct. 56, 54

L.Ed.2d 73 (1977).

Finally, the Board noted that reimbursement orders are

typically used to ‘‘make whole’’ employees. We note, how-

ever, that the Boaid has also ordered reimbursement for

employers and independent contractors when to do so would

effectuate the policies of the Act. See, e.g., Graphic Arts

International Union Local 280, 235 N.L.R.B. 1084, 1085

(1978), enforced, 596 F.2d 904 (9th Cir. 1979) (employer);

Local 814, Teamster (Santini Brothers) 208 N.L.R.B. 184

(1974), enforced, 546 F.2d 989 (D.C. Cir. 1976), cert.

denied, 434 U.S. 818, 98 S.Ct. 56, 54 L.Ed.2d 73 (1977)

(independent contractors).

For these reasons we remand to the Board to fashion a

make-whole remedy"? or to show good cause why a make-

whole remedy would not effectuate the purposes of the

Act.'* See Acco Construction Equipment, Inc. v. N.L.R.B.,

'*We express no opinion at this stage of the proceedings as to whether

the Board should order sation for lost income resulting from

enforcement of article XIII. Board shall consider this claim of the

owner-operators on remand.

ote Ga ee ee nae

a make-whole remedy for dump truc ie ister in

Material and D. Truck Drivers v. N.L.R.B F.2d 759 at 765.

767 (D.C.Cir. 1981). For the reasons expressed in text, we reach a

different conclusion.

511 F.2d 848, 852 (9th Cir. 1975).

Order ENFORCED IN PART and REMANDED for con-

sideration consistent with this opinion.

a ee

APPENDIX iv.

Decision and Order.

United States of America, Before the National Labor

Relations Board.

Joint Council of Teamsters No. 42, and its Affiliated

Local Unions, Sales Drivers & Dairy Employees, Local

166; General Truck Drivers, Local 235; General Truck

Drivers, Chauffeurs & Helpers, Local 692; Chauffeurs,

Teamsters and Helpers, Local 186; Building Material and

Dump Truck Drivers, Local 420; General Teamsters,

Chauffeurs, Warehousemen & Helpers, Local 982; Truck

Drivers, Warehousemen and Helpers, Local 898;

Teamsters & Warehousemen, Local 381, All Affiliated

With the International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America;

Teamsters, chauffeurs, Warehousemen and Helpers,

Local 87, International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America

and

Associated General Contractors of California, Inc.;

Building Industry Association of California, Inc.;

Engineering Contractors Association, Inc.; Southern

California Contractors Association and California Dump

Truck Owners Association.

Case 21—CE—196,

and

Associated Independent Owner-Operators, Inc.

Case 21—CE—199.

Building Material and Dump Truck Drivers, Local 420,

International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America and Associated

Independent Owner-Operators, Inc.

athe,

and

Irvine-Santa Fe Company Party to the Contract.

Case 21—CE—200.

Building Material and Dump Truck Drivers, Local 420,

International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America

(Irvine-Santa Fe Company)

and

Associated Independent Owner-Operators, Inc.

Case 21—CC—2004.

Upon appropriate charges,’ the General Counsel of the

National Labor Relations Board, by the Regional Director

for Region 21, issued an order consolidating cases, a con-

solidated complaint, and a notice of hearing on January 23,

'The original charge in Case 21—CE—196 was filed on December

19, 1977, by California Dump Truck Owners Association (herein called

CDTOA) against Joint Council of Teamsters No. 42, and its affiliated

Local Unions, Sales Drivers & Dairy Employees, Local 166; General

Truck Drivers, Local 235; General Truck Drivers, Chauffeurs & Help-

ers, Local 692; Chauffeurs, Teamsters and Helpers, Local 186; Building

Material and Dump Truck Drivers, Local 420; General Teamsters,

Chauffeurs, Warehousemen Helpers, Local 982; Truckdrivers, Ware-

housemen and Helpers Local 898; Teamsters & Warehousemen, Local

381; all affiliated with the International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America; Teamsters, Chauf-

feurs, Warehousemen and Helpers, Local 87, International Brotherhood

of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein

collectively called Respondent Unions); and against R nt As-

sociated General Contractors of California, Inc.; Building stry As-

sociation of California, Inc.; Engineering Contractors Association, Inc.;

and Southern California Contractors Association (herein collectively

called Respondent Associations). CDTOA filed a first amended charge

in Case 21—CE—196 on December 23, 1977. The charge in Case 21—

CE—199 was filed on January 3, 1978, by Associated Independent

Owner-Operators, Inc. (herein called AlOO) against the Respondent

Unions and the ar "8 Associations. The charges in Cases 21—

CE—200 and 21 '—2004, involving the employer Irvine-Santa Fe

y (herein called Irvine), were filed on January 5, 1978, by

AIOO against one of the Respondent Unions, Building Material and

Dump Truck Drivers, Local 420 (herein called Respondent Local 420).

_ ,

1979. Copies of the charges, complaint, and notice of hear-

ing were duly served on Respondents.

The complaint alleged that Respondent Unions and

Respondent Associations had violated Section 8(e) of the

Act by entering into agreements whereby the employer-

members of Respondent Associations have ceased or re-

frained, or agreed to cease or refrain, from doing business

with other persons. The complaint alleged further that

Respondent Local 420 had violated Section 8(b)(4)(ii)(A)

of the Act. Respondents filed answers to the complaint and

thereby denied the commission of any unfair labor practices.

On June 23, 1979, the parties in the consolidated cases

executed a stipulation of facts and a motion to transfer

proceedings to the Board in which the parties waived a

hearing before an administrative law judge and agreed to

submit the cases directly to the Board for findings of fact,

conclusions of law, and a Decision and Order, based on a

record consisting of the stipulation of facts and extensive

exhibits attached thereto. On September 13, 1979, the Board

approved the stipulation of the parties and transferred the

proceedings to the Board. Thereafter, the General Counsel,

CDTOA, Respondent Unions, Respondent Associations, and

Respondent General Truck Drivers, Local 235, filed briefs

with the Board.

Pursuant to the provisions of Section 3(b) of the National

Labor Relations Act, as amended, the National Labor Re-

lations Board has delegated its authority in this proceeding

to a three member panel.

The Board has considered the entire record stipulated by

the parties* and the briefs filed by the parties, and hereby

makes the following findings and conclusions:

*On January 26, 1979, the United States District Court for the Central

District of California issued an injunction against Respondents pursuant

to a petition filed by the General Counsel under Sec. 10(1) of the Act.

Copies of the pleadings, order, and all relevant documents filed by the

parties have been attached as an exhibit to the stipulation of facts.

Findings of Fact

I. The Business of the Employers

Respondent Associations, comprised of various employ-

ers in the building and construction industry in southern

California, engage in collective bargaining for and negotiate

collective-bargaining agreements on behalf of their respec-

tive employer-members with various labor organizations,

including Respondent unions. In the course and conduct of

business operations, Respondent Associations, in the ag-

gregate, annually purchase and receive goods, materials,

and supplies valued in excess of $50,000 directly from sup-

pliers outside the State of California.

Irvine is a general contractor in the building and con-

struction industry in southern California. At all times ma-

terial herein, Irvine has been engaged in a construction

project in the city of Alhambra, California (herein called

the Alhambra project), where it has subcontracted certain

work to various subcontractors, including Pacific Railroad

Constructors. In connection with its work as a subcontractor

of Irvine on the Alhambra project, Pacific Railroad Con-

structors has purchased and received materials and supplies

valued in excess of $50,000 directly from suppliers located

outside the State of California.

The parties stipulated, and we find, that the employer-

members of the Respondent Associations, including Irvine,

are employers engaged in commerce within the meaning of

Section 2(6) and (7) of the Act.

II. The Labor Organizations Involved

The parties stipulated, and we find, that each of Respon-

dent Unions is, and at all times material herein has been,

a labor organization within the meaning of Section 2(5) of

the Act.’

*The stipulation of facts indicates that Respondent General Truck

Drivers, Local 235, is now merged with and subsumed by Sales Drivers,

Food Processors, Warehousemen & Helpers Local 952.

III. The Alleged Unfair Labor Practices

A. The Issues

1. Do certain sections pertaining to owner-operators in

article XIII of Respondents’ current collective-bargaining

agreement violate the general prohibition in Section 8(e) of

the Act?

(a) Are the owner-operators of for-hire dump trucks

independent contractors or employees within the meaning

of the Act?

(b) If the owner-operators are independent contractors,

are the sections of article XIII which apply to them sec-

ondary in nature?

2. Is article XIII limited to construction jobsite work in

a way which entitle it, even if secondary, to protection under

the first proviso to Section 8(e) of the Act?

3. Has Respondent Local 420 violated Section

8(b)(4)(i1)(A) of the Act by engaging in threatening or coer-

cive conduct with an object of forcing self-employed persons

to join a labor organization?

B.-. The Stipulated Facts

On or about July 1, 1977, Respondent Associations, on

behalf of their employer-members, including Irvine, entered

into a Master Labor Agreement (herein called the MLA)

with Respondent Unions. The MLA is effective from July

1, 1977, until June 15, 1980, and covers all of the southern

California area except San Diego County.

The following sections of MLA article XIII, entitled

**Owner-Operators,’’ are at issue in this proceeding:

1302. The Owner-Operator shall be carried on the

payroll of the Contractor as an employee and as such,

all the terms and conditions of this Master Agreement

and any amendment or amendments thereto, shall be

applicable to him except as provided elsewhere in this

Article and except that in the event that it is determined

that the services of an Owner-Operator were terminated

without just cause, any payment for time lost shall be

limited to the wage and fringe benefit payments pro-

vided in this Agreement, and shall not in any event

include any payment with respect to the equipment or

the loss of use thereof; and except, further, that Owner-

Operator shall not be subject to the provisions of Para-

graph 201, sub-paragraph 201.1 through 201.7

inclusive.

1303. Hiring:

The Contractor or subcontractor shall make every

reasonable effort to refer to the Local Union with area

jurisdiction over the work all Owner-Operators or driv-

ers of equipment for clearance before work begins; and,

in any event, the Union shall be notified of the name

and Social Security number of the Owner-Operator

within forty-eight (48) hours after the Owner-Operator

begins work on that job.

* * %* *

1306. Union Membership:

(a) All employees who are presently members of

a Local Union hereunder shall, as a condition of con-

tinued employment, maintain such membership in good

standing.

(b) As a condition of continued employment, all

employees covered by this Agreement shall on the 8th

day after commencing employment under this Agree-

ment, or the date of this Agreement, which ever is

later, become and remain members of the Local Union

in good standing.

1307. Terminations:

The Contractor or subcontractor will terminate the

employment of any employee covered by this Agree-

ment after notice by the Union, or the Local Union

with jurisdiction in the event such employees shall fail

to comply with Section 1306 of this Article; provided

that membership in the Union, or the Local Union with

jurisdiction was available to such employee on the same

terms and conditions generally applicable to other

members, and the membership was not denied or ter-

minated for reasons other than the failure of the em-

ployee to render the periodic dues, and the initiation

fees uniformly required as a condition of acquiring and

retaining membership. Such employee shall not be

reemployed by the Contractor or subcontractor until

the employee has paid or tendered to the Local Union

with jurisdiction, any such initiation fee, reinitiation

fee or dues accrued to date of termination.

* * * * *

1312. The provisions of this Article have been ne-

gotiated and agreed upon by and between the parties

for the objects and purposes expressed in Paragraph

1313 of the Article. The parties have not undertaken

to negotiate for the employees any profit whatsoever

for the leasing and rental of the equipment they drive.

On the contrary, compensation for the equipment shall

be set by Agreement between the Contractor and the

Owner-Operator at a level which will not circumvent

or defeat the payment of wages, fringes and conditions

of any employee covered by this Master Labor Agree-

ment and which will assure compensation to the Owner-

Operator of not less than the actual cost of operation

of such equipment.

1313. It is further mutually understood and agreed

that the intent of this Article is to assure the payment

of wages, fringes, and conditions as provided in the

Master Agreement and to prohibit the making and car-

rying out of any plan, scheme or device to circumvent

or defeat the payment of wages, fringes and conditions

<=,

as provided in this Master Agreement. Any such agree-

ment, contract or arrangement presently in existence

shall be abrogated upon the execution of this Agreement.

* * * * *

1314. It is further agreed that the Contractor will

not devise or put into operation any scheme, whether

herein enumerated or not to defeat the terms of this

Article of this Master Agreement, nor shall any Owner-

Operator’s arrangement with a Contractor be termi-

nated for the purpose of depriving any other employee

of employment. In the event that the Contractor has

available equipment, the Owner-Operator may be as-

signed to operate such equipment on the job during the

period of the repair of the Owner-Operator’s equipment

and not to exceed that work shift and so long as no

employee is laid off of provide work for such equipment.

oe Oe a

1317. It is understood by the parties that this

Agreement provides for an Employer-Employee rela-

tionship between the Contractor or subcontractor and

each Owner-Operator of equipment used hereunder.

1318. It is recognized that many Owner-Operators

have executed ‘‘short-form’’ agreements with the

Teamsters Union which incorporate by reference pro-

visions of this Master Labor Agreement. The provi-

sions of such ‘‘short-form’’ agreement shall be appli-

cable to said Owner-Operators only in their capacity

as employers, i.e., when such Owner-Operators are

employing one or more employees. When Owner-

Operators are working on a job covered by this Master

Labor Agreement their employment shall be covered

by the Owner-Operator clause of this Agreement.

1319. If a Contractor through the grievance pro-

cedure is found violating any portion of this Article,

the Joint Adjustment Board or the Impartial Chairman,

as described in Article V, shall require the Contractor

= =

to immediately pay compensatory damages for each

Owner-Operator with respect to whom the Contractor

is in violation in an amount equal to the sum of Health

and Welfare and Pension contributions, under the terms

of this Agreement, for eight hours for each day or

portion thereof the violation occurred such damages to

be made payable to the Construction Teamsters Se-

curity Fund by check promptly mailed to the respective

Local Union. The Joint Adjustment Board or Impartial

Chairman may also grant such further relief as may be

deemed appropriate.

* * * * *

1321. Notwithstanding any other provision of this

Agreement, this Article XIII shall be applicable only

to Owner-Operators performing (or who, upon their

employment, will be performing) work to be done at

the site of construction, alteration, painting or repair

of a building, structure, or other construction work.

1321.1 The term ‘‘work to be done at the site of

the construction, alteration, painting or repair of a

building, structure, or other construction work’’ as used

in the Paragraph 1321 shall include all driving to, from

and in connection with hauling materials to or from

any source or disposal site on the one hand, and a

geographical site of construction, on the other hand,

in accordance with the following:

* * %* +e *

1321.1.2 Hauling of materials between a primary

location and a secondary location not excluded by Para-

graph 1321.1.1 above‘ that is located five (5) or less

“For unknown reasons, the complaint, stipulation of facts, and briefs

fail to set forth the term of MLA paragraph 1321.1.1, which states:

1321.1.1 Delivery of materials to or from commercial sup-

pliers or public dumps off the primary location shall always be

exempt from the provisions of Article XIII. Any other general

exclusions from the construction industry proviso, previously de-

fined by the NLRB or the courts, shall continue to be applicable

in interpreting Article XIII.

pas” ae

miles by the closest feasible means of access from the

nearest boundary of the primary location shall be work

to be done at the site, effective August 1, 1977.

1321.1.3 Hauling of material between a primary

location and a secondary location located in excess of

five (5) miles by the closest feasible means of access

from the nearest boundary of the primary location shall

not be work to be done at the site, effective August 1,

1977.

1321.2 Effective January 1, 1978, the mileage out-

lined in Paragraphs 1321.1.2 and 1321.1.3 will be

increased to six (6). Effective July 1, 1978, the mileage

outlined in paragraphs 1321.1.2 and 1321.1.3 will be

increased to seven (7). Effective January 1, 1979, the

mileage outlined in paragraphs 1321.1.2 and 1321.1.3

will be increased to eight (8). Effective January 1,

1979, the mileage outlined in paragraphs 1321.1.2 and

1321.1.3 will be increased to nine (9). Effective Jan-

uary 1, 1980, the mileage outlined in paragraphs

1321.1.2 and 1321.1.3 will be increased to ten (10).

i Se A

1321.5 It is expressly understood that if a haul is

covered by the terms of this Section, all time spent on

any public road shall be covered as well as all other

time spent in connection with such haul.

1321.6 The Owner-Operator shall become a bona-fide

employee as defined in Paragraphs 1301 and 1302 upon

reporting for work on the first day on that job, such em-

ployee status to be effective from the first hour of work

performed.

The parties agree that the foregoing provisions of the

MLA apply to the owner-operators of dump truck equipment

who perform certain hauling services within the geographic

area covered by the MLA for the construction contractors

aK. BEN

who are employer-members of Respondent Associations.°

Although contractors have in some instances used their own

driver-employees in company-owned trucks to haul material

to and from construction sites, they usually must engage

dump truck owner-operators to perform such work. On oc-

casion, a contractor may deal directly with and be billed

directly by an owner-operator for a particular job, but the

prevalent practice for the procurement of an owner-opera-

tor’s services involves a tripartite relationship among the

contractor, owner-operator, and a trucking broker known

as an overlying carrier. Under a typical arrangement, a

contractor contracts with an overlying carrier for the pro-

vision of needed transportation services. The overlying car-

rier then performs such services either by using his own

equipment, vehicles, and employee-drivers, or by using

owner-operators with whom the overlying carrier has

executed subhaul agreements.

An overlying carrier commonly has subhaul agreements

with numerous owner-operators. In turn, an individual

owner-operator usually has subhaul agreements with several

overlying carriers. A construction contractor, however, or-

dinarily has no direct agreement with an owner-operator and

no control over an overlying carrier’s selection of the owner-

operator who will work for the contractor. Although bound

by subhaul agreement, an owner-operator is free to refuse

an overlying carrier’s job referral, to leave a job prior to its

completion, or to substitute another owner-operator in his

‘These and similarly occupied owner-operators elsewhere in Cali-

fornia have been the subject of considerable litigation, hereinafter dis-

cussed, before the Board and the courts of appeal. In reference to prior

litigation, the parties herein agree that the evidence adduced at a Board’

representation case hearing in Case 21—-RD—1008 remains unchanged

and applicable to the determination of the owner-operators’ present

employment status. The evidence in this proceeding accordingly in-

cludes both an extensive statement of stipulated facts and the record

from Case 21 — RD — 1008, which is attached as an exhibit to the

stipulation.

stead. Pursuant to one or more subhaul agreements, an owner-

operator may work on several different jobsites for several

different contractors within a week or even a single day.

Whenever an owner-operator’s vehicle travels in excess

of 50 feet along a public highway, the activities of the

owner-operator and overlying carrier are regulated by the

California Public Utilities Commission (PUC), which es-

tablishes minimum tariffs designed to reflect the costs of

both labor and equipment use for any job. The requirements

of a particular job, however, may result in trilateral nego-

tiations for the payment of a rate higher than the PUC

minimum. When an overlying carrier refers an owner-op-

erator to a contractor for a job, the overlying carrier bills

and collects sums due from the contractor, deducts 5 percent

as a brokerage fee, and transmits the remainder to the owner-

operator. Whether the mode of payment is direct from con-

tractor to owner-operator or through an overlying carrier,

an owner-operator keeps his own record for billing purposes

of time spent on the job and submits a freight bill based on

that record to the appropriate parties. (Some contractors use

an employee designated as a ‘‘load checker’’ to maintain a

separate record of an owner-operator’s hours for purposes

of verifying the freight bill’s accuracy.) An owner-operator

is generally paid in gross, with no deductions for taxes or

benefit payments, and only for hours when his equipment

is in actual usc. In contrast, employee-drivers of a contractor

receive hourly-based net wages for the duration of a fixed

workday, even if their company-owned vehicles are not

operating at all times.

The dump truck equipment usec y an owner-operator in

the performance of services for construction contractors var-

ies, but may include a tractor, a semitrailer unit, a truck

and transfer trailer, a tractor with a bottom dump trailer, a

semibottom dump trailer, or a truck and pup trailer, All

ra ae

owner-operators own at least one power unit. Additional

power, trailer or service equipment may be purchased or

leased. An owner-operator is responsible for all costs of

owning, operating, maintaining, or repairing any equipment

used. These costs include the basic expense of financing

equipment purchases or leases and the additional expenses

entailed by, inter alia, PUC permit, bonding, and liability

insurance requirements, California licensing fees, federal

and state income taxes, Federal highway use taxes, and any

traffic violations.

A contractor may use the services of a dump truck owner-

operator for a variety of construction projects, including the

construction of highways, residential or commercial struc-

tures, underground passageways, and overhead bridges.

Whatever the project, owner-operators participate in the

loading, hauling, and unloading of materials between two

sites. In some instances, an owner-operator’s activities take

place entirely within the physical confines of the construc-

tion project, herein called the geographical site of construc-

tion.° In other instances, an owner-operator must haul ma-

terials along a private or public right-of-way between the

geographical site of construction and a remote location.’ If

the latter type of haul originates at the site of construction,

it typically involves hauling excess excavated materials or

refuse to a remote dumping location which may be either a

public dump or a site opened by the contractor specifically

for the construction project, or hauling broken asphalt to a

‘The stipulation of facts defines the geographical site of construction

as ‘‘including contiguous lands temporarily used during the construc-

tion, upon which the final highway, road, structure, building, conduit,

canal, channel, bridge or rt things will be located after that con-

struction activity is complete.’’

’As used in the stipulation of facts, the term ‘‘remote’’ applies to a

location which is physically separated from the geographical site of

construction by more than the width of a public road.

crushing facility where the material’s components are sep-

arated for reuse. If the haul terminates at the geographical

site of construction, it typically involves hauling material

from a remote ‘‘borrow pit’’ opened by the contractor spe-

cifically to obtain materials needed for a construction proj-

ect, or hau/ing materials from a remote commercial source

of supply such as a rock crushing plant, asphalt supplier,

sand pit, or dirt pit. In addition to the foregoing, an owner-

operator may haul material such as dirt from the contractor’s

geographical site of other construction, which may or may

not involve the same contractor.*

Whether at the geographical site of construction or at a

remote ‘‘borrow pit’’ established by a contractor, an em-

ployee of the contractor, usually a member of the Operating

Engineers Union, operates a skip-loader or other equipment

to load material into an owner-operator’s dump truck. At a

remote commercial source of supply, the commercial ven-

dor’s employee, who may or may not be a member of any

labor organization, loads the owner-operator’s truck by

methods which vary according to the material involved. The

method of unloading materials at any site also varies, de-

pending upon the type of dump truck, the type of material

hauled, and—at a geographical site of construction—the

nature of the construction project. An owner-operator knows

from experience to dump a load as closely as possible to

where a bulldozer operator or grader operator, usually a

member of Operating Engineers, is working. During loading

or unloading procedures, the owner-operator ordinarily re-

mains in his vehicle and does not converse with any em-

ee ce a ee of

—_ - ibed. The record indicates, however, that although

vers of contractors in Respondent Associations operate loading equ

ment, trucks, water trucks, and flatbed trucks, they do not ily

drive the kind of dump truck equipment used by owner-operators.

ployee on the site. The owner-operator is solely responsible

for the operation of his truck, but he may receive general

instruction from a construction project superintendent or

directional signals from a contractor’s employee-flagman,

who is usually a mernber of the Laborers Union. At any

geographical site of construction or remote location, actual

loading times vary in average from | to 7 minutes and actual

unloading times average 3 minutes or less. The total amount

of time spent at any location by the owner-operator may

vary depending upon, inter-alia, waiting time. A contractor

utilizing an Owner-operator’s services is cost-motivated to

insure that the owner-operator spends an absolute minimum

of time per haul. In this regard, a contractor normally tries

to locate a remote source of supply or dumping site as close

as possible to the geographical site of construction. A con-

tractor may also designate the route to be traveled to and

from the geographical site of construction, although owner-

operators are often free to choose their own route. The

owner-operator ordinarily drives at approximately 30 miles

per hour on public roads but more slowly on undedicated

roads, so that travel time between a geographical site of

construction and a remote site 5 miles away would average

25 minutes.

In reference to the relationship between the aforemen-

tioned provisions of MLA article XIII and the aforemen-

tioned activities of California dump truck owner-operators,

the parties have placed into evidence and stipulated the

credibility of sworn affidavits given by Gary Hope, a project

superintendent for MLA signatory construction contractor

Irvine, and Lendelle Kinder, a dump truck owner-operator.

Hope stated that during the first week of December 1977,

he had a conversation with Charles Tanberg, business agent

ior Respondent Local 420, at Irvine’s Alhambra, California,

construction site. Tanberg told Hope in this conversation

—

that the MLA required all truckdrivers on Irvine’s job, in-

cluding owner-operators, to join the Teamsters. Thereafter,

Hope, stated, he observed Tanberg stopping trucks on De-

cember 22, 1977, in the loading area at the Alhambra jobsite

and talking to the drivers. Later in the morning, Hope learned

that one of Irvine’s foremen had permanently ‘‘signed out’’

some truckdrivers because they were not members of the

Teamsters. After futile attempts to secure more trucks, Hope

called an overlying carrier and ‘‘told him not to send any

more truckers unless they were members of the Teamsters.’’

Kinder’s affidavit corroborates Hope’s statement. Ac-

cording to Kinder, he was working as an onwer-operator

driver at Irvine’s Alhambra jobsite on December 22, 1977,

when Tanberg asked to see his Teamsters card. During the

ensuing conversation, Tanberg indicated to Kinder that he

would not be continuing his work for Irvine because he was

not a union members. At the end of the day, Kinder was

told by Irvine’s foreman not to return on the following

morning, in spite of the availability of additional work,

because of the ‘‘union problem.”’

C. Contentions of the Parties

The General Counsel, CDTOA, and Respondent Asso-

ciations all contend that the provisions of MLA article XIII

set forth in full above are proscribed by Section 8(e) of the

Act. Specifically these parties argue that article XIII applies

to owner-operators who are independent contractors, is sec-

ondary in nature, and is not privileged by the construction

industry proviso to Section 8(e) because it is not limited to

tends that Respondent Local 420 has threatened, coerced,

and restrained owner-operators who are independent con-

tractors of Irvine with an object of forcing or requiring them

te join a union, in violation of Section 8(b)(4)(iiA) of the

Act.

——

With respect to both the alleged 8(e) and 8(b)(4)(ii)(A)

violations, Respondent Unions contend that the dump truck

Owner-operators at issue are employees rather than inde-

pendent contractors. Respondent Unions therefore contend

that article XIII and the alleged conduct of Respondent Local

420 must be considered primary and lawful in nature when

applied to owner-operators gua employees of the employer-

members of Respondent Associations. Even if the Board

finds the owner-operators to be independent contractors,

Respondent Unions assert that article XIII is properly limited

to jobsite work and entitled to the protection of the con-

struction industry proviso.

D. Discussion and Conclusions

1. The alleged 8(e) violation

Section 8(e) of the Act forbids entry into a collective-

bargaining agreement whereby an employer agrees to refrain

from dealing in the product of another employer or to cease

doing business with any other person.’ It is well established,

however, that contract clauses which may technically fall

within the literal proscription of Section 8(e) are not unlaw-

ful if the clauses are found to have the primary objective

*The actual text of Sec. 8(e) provides in reed nod

It shall be an unfair labor practice for any organization

or implied, re ceases or refrains or agrees

ccarees dual pop te Se A soarny be

ise dealing in any any person,

any contract or entered into heretofore or hereafter

such an shall be to such extent unenforceable

and void: Provided nothing in this subsection (e) shall apply

to an between a labor and an employer

in the construction i to the contracting or subcon-

of preserving or protecting work performed by the contract-

ing employer’s employees.'° Furthermore, even clauses

which are secondary in nature and within the general pros-

cription of Section 8(e) ray be lawful and protected if they

satisfy the requirements for exemption under the construc-

tion industry proviso to Section 8(e).

The complaint alleges that the several cited paragraphs

of article XIII in Respondents’ MLA violate Section 8(e)

because they require signatory employers to cease doing

business with dump truck owner-operators who are inde-

pendent contractors on any terms other than those applicable

to unit employee-drivers under the MLA. In determining

the merits of the complaint, we are faced with the threshold

question whether the owner-operators actually are indepen-

dent contractors, rather than employees, when working for

the employer-members of Respondent Association.'' If the

Owner-operators are employees within the meaning of the

Act, then article XIII is primary in scope and the complaint

must be dismissed.

As indicated in the previous section of this Decision, the

Board is no stranger to proceedings involving the employ-

ment status of these owner-operators. In 1971, petitions

were filed in Cases 21—RD—1008 and 20—RD—721 to

decertify the Teamsters Unions as representatives of the

dump truck owner-operators within the Unions’ respective

southern and northern California jurisdictions. After sepa-

rate hearings, the Board consolidated the two representation

"National Woodwork Manufacturers Association v. N.L.R.B., 386

U.S. 612 (1967).

"Under Sec. 2(3) of the Act, the term ‘‘employee’’ does not include

‘‘any individual having the status of an independent contractor.'’ General

+ Paramount among which is the ‘‘right-

* test, to the determination of whether an individual is

contractor. N.L.R.B. v. United Insurance

= os

cases for issuance of a Decision and Order finding the owner-

operators to be employees.'? Subsequent to hearings on ad-

ditional matters, the Board issued a Supplemental Decision

and Direction of Election in each of the representation pro-

ceedings.'? Before the directed elections could be con-

ducted, the Teamsters and various employer associations in

the California construction industry executed new collec-

tive-bargaining agreements for both southern and northern

California. As a result, parallel unfair labor practice charges

were filed with the Board alleging violations of Section

8(a)(2) and (1) of the Act and ‘‘blocking’’ further processing

of the representation cases. The Board thereafter issued a

Decision and Order adopting an administrative law judge’s

findings that the alleged unfair labor practices had been

committed. '*

Upon a petition for enforcement and a cross-petition for

review, the United States Court of Appeals for the Ninth

Circuit denied enforcement of the Board’s Order because it

found, contrary to the Board, that the owner-operators were

independent contractors who were not properly part of any

employee unit.'* Upon remand of the unfair labor practice

case from the court, the Board consolidated it with the

representation cases still pending and issued a Supplemental

Decision and Order finding ‘‘pursuant to law of the case’’

that the dump truck owner-operators were independent con-

tractors, not employees. '® Prior inconsistent Decisions were

"Contractor Members of the Associated General Contractors of

California, Inc., 201 NLRB 311 (1973).

"Contractor Members of the Associated General Contractors of Cal-

ifornia, Inc., 209 NLRB 363 (1974); 209 NLRB 366 (1974).

“Associated General Contractors of California, Inc., et al., 220

NLRB 540 (1975).

"Associated General Contractors of California, Inc. v. N.L.R.B.,

564 F.2d 271 (1978).

“Associated General Contractors of California, Inc., et al., 239

NLRB No. 100 (1978).

vacated and all proceedings were dismissed.

Notwithstanding the foregoing history of litigation,

Respondent Unions seek de novo consideration of the dump

truck owner-operators’ status in the present case and urge

the Board to find these individuals to be employees. We do

not regard such a course of action as appropriate. In the

prior representation case and unfair labor practice case lit-

igation, the same parties as are involved herein, or their

privies, were present and fully litigated the identical issue

of employment status considered herein. Moreover, there

has been no significant change in the nature of the owner-

operators’ work since that litigation terminated. Accord-

ingly, under established principles of res judicata and col-

lateral estoppel, the final and conclusive finding in the prior

cases that the dump truck owner-operators are independent

contractors is controlling in this proceeding."’

The owner-operator provisions of MLA article XIII, para-

graphs 1302, 1303 1306, 1307, 1312-19, and 1321.6, re-

quire all employer-members of Respondent Associations to

cease doing business with dump truck owner-operators who

do not become union members and employee-drivers subject

to all terms of the MLA. Such provisions, applied to in-

dividuals whom we have found to be independent contrac-

tors, are secondary on their face.'* They are designed to

"See, e.g., Graneto-Datsun, A Graneto Company, 220 NLRB 399

(1975); International Longshoremen's and Warehousemen’s Union, et

al, (California Cartage Company, Inc.), 215 NLRB 541, 542 (1974);

Local Union No. 3, International Brotherhood of Electrical Workers,

‘ist (New York Telephone Company), 197 NLRB 866, 867-868

‘Local 814, International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America (Santini Brothers, Inc.), 208

NLRB 184, 198-200 (1974); Newspaper & Periodical Drivers’ & Help-

ers Local 921, International Brotherhood of Teamsters, Chauffeurs,

Warehousemen & Helpers of America (San Francisco New. —

ing Co., Inc.), 204 NLRB 440 (19795; Highway Truck

Helpers, Local 107, International B

fours, Warehousemen and Helpers of America; ounnd Satie ters Cha

Gace

serve the general institutional interests of Respondent Unions

in organization rather than any specific legitimate interests

of bargaining unit employees in unit work preservation."

Accordingly, we find that the aforementioned provisions of

MLA article XIII violate Section 8(e) of the Act, unless

they are entitled to protection under the construction industry

proviso.

The critical inquiry with respect to the applicability of

the construction industry proviso to article XIII concerns

whether that article covers only ‘‘work to be done at the

site of the construction, alteration, painting, or repair of a

building, structure, or other work.’’ All parties agree that

article XIII, on its face and in practice, applies to trans-

portation work performed by dump truck owner-operators

off the geographical site of construction. The General Coun-

sel and CDTOA contend that such coverage per se exceeds

the jobsite limitation, as it has been defined in legislative

history and Board precedent. Respondent Unions argue,

however, that offsite work should be considered jobsite

work within the meaning of the proviso if it involves only

the transportation of materials between a contractor’s geo-

graphical site of construction and a remote dumping or sup-

ply site established up to 10 miles away by the contractor

Inc.). 199 NLRB 31 (1972); Milk Wagon Drivers and Creamery Work-

ers Local Union No. 66 of Seattle, Washington and Vicinity, Interna-

tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-

ers of America (Carnation Company), 181 NLRB 882, 886 (1970);

General Teamsters, Chauffeurs, Warehousemen and Helpers, Local

982, International Brother of Teamsters, Chauffeurs, Warehouse-

men and Helpers of America; et al. (J. K. Barker Trucking Co.), 181

NLRB 515, 520-521 (1970); and see A. Duie Pyle, Inc. v. N.L.R.B.,

383 F.2d 772 (3d Cir. 1967).

"We note that none of Respondents have even argued in their briefs

that the owner-operator provisions have a valid work — pur-

spose if the dump truck owner-operators are in fact independent

contractors.

for exclusive use in connection with work at the geograph-

ical site of construction. They further contend that article

XIII applies only to the owner-operators’ jobsite work, as

so defined.”

The legislative history of Section 8(e) and its construction

industry proviso is sparse in references to the precise def-

inition of jobsite work intended by Congress. In this regard,

the House Conference report stated only that:

It should be particularly noted that the proviso relates

only and exclusively to the contracting or subcontract-

ing of work to be done at the site of the construction.

The proviso does not exempt from Section 8(e) agree-

ments relating to supplies and materials or other prod-

ucts shipped or otherwise transported to, and delivered,

on the site of construction.”'

In addition, the legislative history more generally suggests

that a primary motivation for the enactment of the proviso

was the desire to prevent potential labor strife between union

and nonunion personnel working at the same jobsite.”

Interpreting legislative intent from the foregoing, the Board

has consistently adhered to a narrow definition of jobsite

work when evaluating contractual provisions on a case-by-

Respondent Associations admit that Art. XIII is not limited to jobsite

work within the meaning of the Act. They urge the Board to articulate

a ‘‘majority time’’ jobsite definition which would apply to all trans-

portation work by the owner-operators herein if a majority of each day’s

working time is spent at the geographical site of construction and/or at

a contractor-controlled remote site where the contractor's own employ-

ees are also working.

"H. Conf. Rept. 1147, 86th Cong., Ist sess., p. 39; Leg. Hist. 943.

See also the legislative hi set forth in Ohio Valley Carpenters

District Council, United B rhood of Carpenters and Joiners of

pyr Foahtad (Cardinal Industries, Inc.), 136 NLRB 977, 988-

*See, e.g., the discussion of legislative history in /nternational Union

ae ge _ Local Union No. 12, AFL-CIO (Robert E.

ulton), N 530, 536 (1975).

case basis. It has found that the proviso clearly does not

extend to offsite work merely because such work could be

done at the site of construction.” Furthermore, the Board

has refused in several cases to apply the proviso’s coverage

to various types of transportation work wherein deliveries

have been made directly on the geographical site of con-

struction. In particular, the Board has found that none of

the following constitutes jobsite work: the mixing, delivery,

and pouring of ready-mix concrete;™ the delivery of precast

concrete pipe;”* the ‘‘bringing of tools, materials, and per-

sonnel to and from the site of construction’’;” and the delivery

of sand landfill.”’

We must evaluate the work coverage provisions of MLA

article XIII, contained in paragraph 1321 and subparagraphs

thereto, in light of the foregoing legislative history and

precedent. Without the limitations on coverage stated in

subparagraph 1321.1.1, the remainder of paragraph 1321

would on its face apply the secondary provisions of article

III to non-jobsite work. Specifically, the owner-operator

provisions would without subparagraph 1321.1.1 cover the

offsite transportation of all materials between a geographical

*Ohio Valley Carpenters District Council (Cardinal Industries), su-

pra at 988.

“International Brotherhood of Teamsters, Chauffeurs, Warehouse-

men and Helpers of America, Local 294 (Island Dock Lumber, Inc.),

145 NLRB (1963); Teamsters Local Union No. 559, a/w Inter-

national Brotherhood of Teamsters, Chauffeurs, Warehousemen and

of America (Connecticut Sand and Stone Corporation), 138

$32 (1962).

*Joint Council of Teamsters No. 42, et al. (Inland Concrete Enter-

prises, Inc.), 225 NLRB 209 (1976).

*Local Union No. 282, affiliated with the International Brotherhood

Teamsters, Ci ‘arehousemen and Helpers of America (D.

ortunato, Inc.), 1 NLRB 673 (1972).

"Local 294, International Brotherhood of Teamsters, Chauffeurs.

Warehousemen & Helpers of America Clemence D. Stanton, d/bia/

Rexforo Sand and Gravel Co.), 195 NLRB 378, (1972).

male

site of construction and any remote location within an area

expanding from 5 to 10 miles away from the site during the

life of the MLA. Article XIII would then not be entitled to

protection under the construction industry proviso, because

it would clearly apply to the various types of transportation

work defined as offsite work by the Board in the cases cited

in the preceding paragraph.

Subparagraph 1321.1.1, however, states that article XIII

does not apply to the ‘‘delivery of materials to or from

commercial suppliers or public dumps.’’* As indicated in

the preceding section of this Decision, the parties have

inexplicably failed in the complaint, stipulation of facts, and

briefs to refer to the express terms of subparagraph 1321.1.1.

Respondent Unions nevertheless implicitly rely upon the

limiting language of this subparagraph by admitting in their

brief that neither the delivery of materials from a remote

commercial source to the geographical site of construction

nor the cartage of materials away from the geographic site

to a remote commercial dumping site constitutes jobsite

work within the meaning of the Act and the MLA. We

agree, and find that subparagraph 1321.1.1 on its face so

limits article XIII as to exclude from its coverage such offsite

*S 1321.1.1 also states that *‘{a}ny other exclu-

sions from the construction industry proviso, previously by the

NLRB or the courts, shail continue to be applicable in i

Article XIII.’’ We give no weight to this language. An -

contsiand, and clnaty Wagel conteamadl goodaten, sth es ee sa0-

ondary owner-operator provision herein, will not be of its il-

Nora oy ovement ““savings clause."’ See ‘sex County

and Vicinity District Council of Carpenters and M. ;. United

Brotherhood of Carpenters Joiners of America, (As-

sociated Contractors of Essex C , Inc.), 141 NLRB 858, 869 (1963);

Perry Coal C , Midwest Corporation, and Peabody Coal

Company, 125 1256 (1956).

construction work.”

Notwithstanding the limitation expressed in subparagraph

1321.1.1, we find that paragraph 1321 in its entirety clearly

extends the coverage of article XIII to nonjobsite work.

Paragraph 1321 does not, in fact, conform to the jobsite

definition advocated by Respondent Unions, because it does

not restrict article XIII to the transportation of materials

between a contractor’s geographical site of construction and

a remote location controlled by the same contractor for use

in connection with work at the geographical site of con-

struction. On the contrary, article XIII undisputedly covers

dump truck owner-operators who are engaged in the trans-

portation of materials between different contractors’ geo-

graphical sites of construction. Such hauls may include the

transportation of materials to or from, as well as the loading

or dumping of materials on, a jobsite controlled by a non-

union contractor. The Board has twice refused to broaden

the jobsite definition under the construction industry proviso

to permit application of a contract’s secondary provisions

to work performed for a subcontractor at a remote location

established exclusively or partially to service a contractor’s

geographical site of construction.” If remote locations not

controlled by the contractor for a geographical site of con-

struction cannot be viewed as extensions of the contractor's

_Astranals & is enansneaaty to sales to exttiacis erttenee Oe tate.

pretation of an unambiguous contractual provision, we note that our

by the aifidavis of Geenge’h, Peaer ited by Rapandont eles

by the affidavit of George A. by Respondent unions

hand he nto peng oe he co On er

Respondent Unions hve a in that al

Respondent Unions subparagraph’s limitations

efforts to enforce art.

jobsite, and we reaffirm that they cannot whether or not

they are themselves actual construction sites, then the trans-

portation of materials between such sites is no different than

the transportation of materials between a geographical site

of construction and a remote commercial supply or dumping

location. As previously stated, the Board has consistently

held that such work is not jobsite work.

Even if we were to accept the premise that article XIII

covers only the transportation of materials between sites up

to 10 miles apart but controlled by the same contractor, we

would find such coverage to be overbroad. Based on the

parties’ estimates of average times involved, article XIII

would apply to an owner-operator who in the course of a

10-mile roundtrip haul spends an average of 10 minutes

combined at the geographical site of construction and the

remote location and an average of 50 minutes in offsite

travel. The primary purpose of the construction industry

proviso—to avoid tensions among groups of employees at

the same site—has little relevance to persons having such

incidental contact with the site. The legislative history of

the proviso demonstrates that Congress shared this conclu-

sion by expressing its specific intent to extempt from the

proviso the total process of transporting materials in spite

of the fact that some tasks in that process might take place

on a construction jobsite.*' Consistent with this intent, the

Board has repeatedly held that the proviso does not apply

to jobsite deliveries (or, by logical inference, pickups) which

are only a small part of basically offsite transportation ac-

tivity. In the present case, we perceive no justification for

departing from this well-established precedent merely be-

"Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union

No. 631, International Brotherhood of Teamsters, C: feurs, Ware-

housemen & Helpers of America (Reynolds Electrical Engineering

Co., Inc.), 154 NLRB 67, 95 (1965).

pan. ane

cause the transportation activity takes place between and

involves brief work on two sites controlled by the same

construction contractor.** The secondary owner-operator

provisions of articles XIII clearly extend to predominately

offsite transportation work performed by dump truck owner-

operators. We find that such work is not jobsite work within

the meaning of the construction industry proviso.”

For the foregoing reasons, we find that the secondary

provisions of article XIII are not entitled to protection under

the construction proviso. Accordingly, we find that those

provisions violate Section 8(e) of the Act.

2. The alleged 8(b)(4)(ii)(A) violation

Uncontroverted record evidence conclusively demon-

strates that Respondent Local 420, through its business agent,

Charles Tanberg, threatened a self-employed dump truck

owner-operator, Lendelle Kinder, with loss of a job at the

Alhambra, California, jobsite of construction contractor Ir-

vine unless Kinder would become a member of Local 420.

The evidence further shows that Respondent Local 420,

through Tanberg, coercively insisted that Irvine cease doing

business with independent contractors who were not and

“We reject Respondent Unions’ argument that the definition of jobsite

work in the proviso to Sec. 8(e) should be identical to the definition of

jobsite work in the Davis-Bacon Act. That Act, as a remedial statute,

is broader in coverage than the 8(¢) proviso. /nternational Union of

Operating Ei oe Local Union No. 12 (Acco Construction Equip-

ment, Inc.), NLRB 742 (1973); Drivers, Salesmen, Warehousemen,

Milk Processors, Cannery, Dairy Employees and Helpers, Local Union

No. 695, a/w International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America v. N.L.R.B., 361 F.2d 547,

553 (D.C. Cir. 1966).

“We leave open the question whether, if ever, the definition of jobsite

work under the proviso may include the brief and incidental transpor-

tation of materials between two proximate, but not physically contig-

pam my sites of construction, each of which is exclusively

led by the same contractor.

—

would not become members of Local 420. Based on such

evidence, we find that Respondent Local 420 has threatened,

coerced, and restrained Irvine and the independent contrac-

tors of Irvine with an object of forcing or requiring the

independent contractors to join a labor organization, in clear

violation of Section 8(b)(4)(ii)(A) of the Act.

The Remedy

Having found that 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 purpose 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. The employer-members of Associated General Con-

tractors of California, Inc., Building Industry Association

of California, Inc., Engineering Contractors Association,

Inc., and Southern California Contractors Association are

“We hereby deny the Charging Party CDTOA’s request that we

require Respondent Unions to reimburse any owner-operator for pay-

ment of initiation fees and dues, deducted contributions to union benefit

funds, or income lost by reason of the enforcement of unlawful terms

in MLA art. XIII. The Board has on one occasion adopted without

comment an administrative law judge’s recommended Order containing

such a remedy. Local 814, Teamsters (Santini Brothers, Inc.), supra

at 201. In the present case, however, no evidence has been introduced

with to alleged losses directly attributable to actual coercion

Re Unions, nor has the remedial issue been expressly liti F

F , we find a reimbursement order, typically used to *‘make

whole’’ employees for violations of the Act, to be generally overbroad

pore 101 mga fonann Dex See Doaage ABs hase dimen.

grieved owner-operators engaged in business as independent contractors

may pursue a damage claim under Sec. 303 of the Act. For the foregoing

reasons, we find that the reimbursement of owner-operators requested

by CDTOA would not effectuate the remedial policies of the Act. See

Local 60, United Brotherhood ‘S and Joiners of America,

AFL—CIO, et al. v. N.L.R.B., S. 651 (1961).

—

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: Joint Council

of Teamsters No. 42, and its affiliated Local Unions, Sales

Drivers & Dairy Employees, Local 166; General Truck

Drivers, Local 235; General Truck Drivers, Chauffeurs &

Helpers, Local 692; Chauffeurs, Teamsters and Helpers,

Local 186; Building Material and Dump Truck Drivers,

Local 420; General Teamsters, Chauffeurs, Warehousemen

& Helpers, Local 982; Truckdrivers, Warehousemen and

Helpers, Local 898; Teamsters & Warehousemen, Local

381; all affiliated with the International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of

America; and Teamsters, Chauffeurs, Warehousemen and

Helpers, Local 87, International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America.

3. By threatening, coercing, and restraining persons en-

gaged in commerce, including Irvine-Santa Fe Company

and the independent contractors of Irvine, with an object of

forcing or requiring the independent contractors of Irvine

to join a labor organization, Building Material and Dump

Truck Drivers, Local 420, International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of

America, has engaged in unfair labor practices in violation

of Section 8(b)(4)(ii)(A) of the Act.

4. By entering into, maintaining, and giving effect to

the aforementioned paragraphs in article XIII of the Master

Labor Agreement between Respondent Associations and

Respondent Unions, Respondents have engaged in unfair

labor practices in violation of Section 8(e) of the Act.

5. The above unfair labor practices are unfair labor prac-

tices affecting 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. Respondent Building Material and Dump Truck

Drivers, Local 420, International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America, its

officers, agents, and representatives, shall:

1. Cease and desist from threatening, coercing, and re-

straining Irvine-Santa Fe Company or the independent con-

tractor dump truck owner-operators of Irvine with an object

of forcing or requiring the owner-operators to join a labor

organization.

2. Take the following affirmative action designed to

effectuate the policies of the Act:

(a) Post at its business offices and meeting halls copies

of the attached notice marked ‘‘Appendix A.’’** Copies of

said notice, on forms provided by the Regional Director for

Region 21, after being duly signed by Respondent’s rep-

resentative, shall be posted by said Union 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. Reason-

able steps shall be taken by the Union to insure that said

notices are not altered, defaced, or covered by any other

material.

In the event that this Order is enforced by a Judgment of a United

States Court of A s, 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."”’

Note that appendices to the Board's decision are not reproduced in

this Appendix ii.

—

(b) Sign and mail to said Regional Director sufficient

copies of the aforementioned notice for posting at the prem-

ises of Irvine-Santa Fe Company, if willing.

ing within 20 days from the date of this Order, what steps

the Respondent Local 420 has taken to comply herewith.

B. Respondents Joint Council of Teamsters No. 42, and

its affiliated Local Unions, Sales Drivers & Dairy Employ-

ees, Local 166; General Truck Drivers, Local 235; General

Truck Drivers, Chauffeurs & Helpers, Local 692; Chauf-

feurs, Teamsters and Helpers, Local 186; Building Material

and Dump Truck Drivers, Local 420; General Teamsters,

Chauffeurs, Warehousemen & Helpers, Local 982; Truck-

drivers, Warehousemen and Helpers, Local 898; Teamsters

& Warehousemen, Local 381; all affiliated with the Inter-

national Brotherhood of Teamsters, Chauffeurs, Ware-

housemen and Helpers of America; and Teamsters, Chauf-

feurs, Warehousemen and Helpers, Local 87, International

Brotherhood of Teamsters, Chauffeurs, Warehousemen and

Helpers of America, their officers, agents, and represen-

tatives, shall:

1. Cease and desist from entering into, maintaining,

giving effect to, or enforcing the provisions of article XIII

in their 1977-80 Master Labor Agreement with Associated

General Contractors of California, Inc., Building Industry

Association of California, Inc., Engineering Contractors

Association, Inc., and Southern California Contractors

Association, to the extent found unlawful herein.

2. Take the following affirmative action designed to

effectuate the policies of the Act:

(a) Post at their business offices and meeting halls copies

of the attached notice marked ‘‘Appendix B.’’* Copies of

“See fn. 35, supra.

ann

said notice, on forms provided by the Regional Director for

Region 21, after being duly signed by Respondents’ rep-

resentative, shall be posted by said Unions immediately

upon receipt thereof, and be maintained by them for 60

consecutive days thereafter, in conspicuous places, includ-

inig all places where notices to members are customarily

posted. Reasonable steps shall be taken by the Unions to

insure that said notices are not altered, defaced, or covered

by any other material.

(b) Sign and mail to said Regional Director sufficient

copies of the aforementioned notice for posting at the prem-

ises of Associated General Contractors of California, Inc.,

Building Industry Association of California, Inc., Engi-

neering Contractors Association, Inc., and Southern Cali-

fornia Contractors Association, and their employer-

members, if willing.

ing, within 20 days from the date of this Order, what steps

Respondent Unions have taken to comply herewith.

C. Respondents Associated General Contractors of Cal-

ifornia, Inc., Building Industry Association of California,

Inc., Engineering Contractors Association, Inc., and South-

ern California Contractors Association, and their employer-

members, their officers, agents, successors, and assigns,

shall:

1. Cease and desist from entering into, maintaining,

giving effect to, or enforcing the provisions of article XIII

in their 1977-80 Master Labor Agreement with the Respon-

dent Unions, to the extent found unlawful herein.

2. Take the following affirmative action designed to

effectuate the policies of the Act:

ae. Se

(a) Post at their places of business copies of the attached

notice marked ‘‘Appendix C."’’’ Copies of said notice, on

forms provided by the Regional Director for Region 21,

after being duly signed by representatives of the Respondent

Associations, shall be posted by the Associations and their

employer-members immediately upon receipt thereof, and

be maintained by them for 60 consecutive days thereafter,

in conspicuous places, including all places where notices to

employees are customarily posted. Reasonable steps shall

be taken by the Associations and their employer-members

to insure that said notices are not altered, defaced, or covered

by any other material.

(b) Notify the Regional Director for Region 21, in writ-

ing, within 20 days from the date of this Order, what steps

the Respondent Associations have taken to comply herewith.

Dated, Washington, D.C. March 31, 1980.

John H. Fanning, Chairman

John A. Penello, Member

John C. Truesdale, Member

(SEAL) NATIONAL LABOR RELATIONS

BOARD

"See fn. 35, supra.

— ae

APPENDIX v.

29 U.S.C. § 152(3)

(3) The term ‘‘employee’’ shall include any employee,

and shall not be limited to the employees of a particular

employer, unless this subchapter explicitly states otherwise,

and shal) include any individual whose work has ceased as

a consequence of, or in connection with, any current labor

dispute or because of any unfair labor practice, and who

has not obtained any other regular and substantially equiv-

alent employment, but shall not include any individual em-

ployed as an agricultural laborer, or in the domestic service

of any family or person at his home, or any individual

employed by his parent or spouse, or any individual having

the status of an independent contractor, or any individual

employed as a supervisor, or any individual employed by

an employer subject to the Railway Labor Act, as amended

from time to time, or by any other person who is not an

employer as herein defined.

* * *

29 U.S.C. § 158(b)(4)

(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 com-

merce or in an industry affecting commerce to engage

in, 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—

— oe

(A) forcing or requiring any employer or self-

employed person to join any labor or employer or-

ganization or to enter into any agreement which is

prohibited by subsection (e) of this section;

(B) forcing or requiring any person to cease us-

ing, selling, handling, transporting, or otherwise

dealing in the products of any other producer, pro-

cessor, or manufacturer, or to cease doing business

with any other person, or forcing or requiring any

other employer to recognize or bargain with a labor

organization as the representative of his employees

unless such labor organization has been certified as

the representative of such employees under the pro-

visions of section 159 of this title: Provided, That

nothing contained in this clause (B) shall be con-

strued to mak unlawful, where not otherwise un-

lawful, any primary strike or primary picketing;

ognize or bargain with a particular labor organization

as the representative of his employees if another

labor organization has been certified as the repre-

sentative of such employees under the provisions of

section 159 of this title;

(D) forcing or requiring any employer to assign

particular work to employees in a particular labor

organization or in a particular trade, craft, or class

rather than to employees in another labor organi-

zation or in another trade, craft, or class, unless such

employer is failing to conform to an order or cer-

tification of the Board determining the bargaining

representative for employees performing such work:

Provided, That nothing contained in this subsection shall

be construed to make unlawful a refusal by any person to

enter upon the premises of any employer (other than his

own employer), if the employees of such employer are en-

gaged in a strike ratified or approved by a representative of

such employees whom such employer is required to rec-

ognize under this subchapter: Provided further, That for the

purposes of this paragraph (4) only, nothing contained in

such paragraph shall be construed to prohibit publicity, other

than picketing, for the purpose of truthfully advising the

public, including consumers and members of a labor or-

ganization, that a product or products are produced by an

employer with whom the labor organization has a primary

dispute and are distributed by another employer, as long as

such publicity does not have an effect of inducing any in-

dividual employed by any person other than the primary

employer in the course of his employment to refuse to pick

up, deliver, or transport any goods, or not to perform any

services, at the establishment of the employer engaged in

such distribution;

29 U.S.C. § 158(e)

(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 busi-

ness with any other person, and any contract or agreement

entered into heretofore or hereafter containing such an agree-

ment shall be to such extent unenforcible and void: Pro-

vided, That nothing in this subsection 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 con-

struction, alteration, painting, or repair of a building, struc-

ture, or other work: Provided further, That for the purposes

of this subsection and subsection (b)(4) (B) of this section

”? sé

the terms ‘‘any employer’’, ‘‘any person engaged in com-

merce or an industry affecting commerce’’, and ‘‘any per-

son’’ when used in relation to the terms ‘‘any other pro-

ducer, processor, or manufacturer’’, ‘‘any other employer’,

or ‘‘any other person’’ shall not include persons in the

relation of a jobber, manufacturer, contractor, or subcon-

tractor 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 subchapter shall prohibit the

enforcement of any agreement which is within the foregoing

exception.

29 U.S.C. § 160(c)

agency or the Board shall be reduced to writing and filed

with the Board. Thereafter, in its discretion, the Board upon

notice may take further testimony or hear argument. If upon

the preponderance of the testimony taken the Board shall

be of the opinion that any person named in the complaint

has engaged in or is engaging in any such unfair labor

practice, then the Board shall state its findings of fact and

shall issue and cause to be served on such person an order

requiring such person to cease and desist from such unfair

labor practice, and to take such affirmative action including

reinstatement of employees with or without back pay, as

will effectuate the policies of this subchapter: Provided,

That where an order directs reinstatement of an employee,

back pay may be required of the employer or labor

organization, as the case may be, responsible for the dis-

crimination suffered by him: And provided further, That in

determining whether a complaint shall issue alleging a vi-

olation of subsection (a)(1) or (a)(2) of section 158 of this

title, and in deciding such cases, the same regulations and

lian

rules of decision shall apply irrespective of whether or not

the labor organization affected is affiliated with a labor

organization national or international in scope. Such order

may further require such person to make reports from time

to time showing the extent to which it has complied with

the order. If upon the preponderance of the testimony taken

the Board shall not be of the opinion that the person named

in the complaint has engaged in or is engaging in any such

unfair labor practice, then the Board shall state its findings

of fact and shall issue an order dismissing the said com-

plaint. No order of the Board shall require the reinstatement

of any individual as an employee who has been suspended

or discharged, or the payment to him of any back pay, if

such individual was suspended or discharged for cause. In

case the evidence is presented before a member of the Board,

or before an examiner or examiners thereof, such member,

or such examiner or examiners as the case may be, shall

issue and cause to be served on the parties to the proceeding

a proposed report, together with a recommended order, which

shall be filed with the Board, and if no exceptions are filed

within twenty days after service thereof upon such parties,

or within such further period as the Board may authorize,

such recommended order shall become the order of the

Board and become effective as therein prescribed.

a . em

APPENDIX vi.

Article xiii

Owner-Operator

1300. Owner-Operator is an individual that holds legal

or registered title to a motor vehicle or to the power equip-

ment unit thereof in his name and who personally drives

such vehicle or unit in the performance of work covered by

this Agreement.

1301. The Contractor expressly reserves the right to

control the manner, time, means and details of, and by

which the Owner-Operator performs his services, as well

as the ends to be accomplished, and shall be the sole judge

of the capability of the Owner-Operator’s equipment to per-

form the work required to be performed and may if the

Contractor determines that the Owner-Operator’s equipment

is no capable of performing the work required to be per-

formed, terminate such Owner-Operator’s services; pro-

vided, however, that the Owner-Operator may file and proc-

ess a grievance under paragraph 1319 hereof on the grounds

that the Contractor’s determination that the Owner-Opera-

tor’s equipment is inadequate was a pretext for terminating

the Owner-Operator’s services. Failure to work the day or

one-half (2) day out, as directed, shall terminate the

Owner-Operator’s employment and he shall be paid only

for actual time worked prior to such failure. The Contractor

shall not pay for time spent by the Owner-Operator in re-

pairing, servicing, or maintaining his equipment after ter-

mination of employment or before or after his shift, or half-

shift, as the case may be.

1302. The Owner-Operator shall be carried on the pay-

roll of the Contractor as an employee and as such, all the

terms and conditions of this Master Agreement and any

amendment or amendments thereto, shall be applicable to

pa,” aa

him except as provided elsewhere in this Article and except

that in the event that it is determined that the services of an

Owner-Operator were terminated without just cause, any

payment for time lost shall be limited to the wage and fringe

benefit payments provided in this Agreement, and shall not

in any event include any payment with respect to the equip-

ment or the loss of use thereof; and except, further, that

Owner-Operator shall not be subject to the provisions of

paragraph 201, sub-paragraph 201.1 through 201.7.1

inclusive.

1303. Hiring:

The Contractor or subcontractor shall make every rea-

sonable effort to refer to the Local Union with area juris-

diction over the work all Owner-Operators or drivers of

equipment for clearance before work begins; and, in any

event, the Union shall be notified of the name and social

security number of the Owner-Operator within forty-eight

(48) hours after the Owner-Operator begins work on that

job.

1304. The equipment usage rate shall be set by agree-

ment between the Owner-Operator and the Contractor.

Equipment usage is the amount agreed between the Con-

tractor and the Owner-Operator for the use of his equipment.

Separate checks shall be issued by the Contractor for (a)

wages and (b) equipment usage. Wages, fringes, payroll

taxes and subsistence when applicable shall be paid in ad-

dition to the equipment usage amount referred to herein.

1305. Upon request of the Union, the Contractor shall

make available a copy of his equipment usage agreement

with the Owner-Operator.

1306. Union Membership:

(a) Allemployees who are presently members of a Local

Union hereunder shall, as a condition of continued em-

ployment, maintain such membership in good standing.

cenit ai

(b) As a condition of continued employment, all em-

ployees covered by this Agreement shall on the 8th day after

commencing employment under this Agreement, or the date

of this Agreement, whichever is later, become and remain

members of the Local Union in good standing.

1307. Terminations:

The Contractor or subcontractor will terminate the em-

ployment of any employee covered by this Agreement after

notice by the Union, or the Local Union with jurisdiction

in the event such employee shall fail to comply with Section

1306 of this Article; provided that membership in the Union,

or the Local Union with jurisdiction was available to such

employee on the same terms and conditions generally ap-

plicable to other members, and the membership was not

denied or terminated for reasons other than the failure of

the employee to render the periodic dues, and the initiation

fees uniformly required as a condition of acquiring and

retaining membership. Such employee shall not be reem-

ployed by the Contractor or subcontractor until the employee

has paid or tendered to the Local Union with jurisdiction,

any such initiation fee, re-ininiation fee or dues accrued to

date of termination.

1308. No provision of other articles of this Agreement

shall be interpreted as requiring payments for the use, main-

tenance or servicing of the Owner-Operator’s equipment.

1309. Compensation for the equipment shall be by

check, paid monthly, for the full amount due, less any

agreed advances. A statement of any charges by the Employer

shall be issued at the same time.

1310. The Owner-Operator shall provide and shall have

sole responsibility for gasoline, oil, grease, tires, tubes,

repairs and any other items necessary to operate his equip-

ment. He shall have complete freedom to purchase any such

items at any place where efficient service and satisfactory

products can be obtained at the most favorable prices.

1311. There shall be no interest or handling charge on

earned money advances prior to the regular pay day.

1312. The provisions of this Article have been nego-

tiated and agreed upon by and between the parties for the

objects and purposes expressed in Paragraph 1313 of the

Article. The parties have not undertaken to negotiate for the

employees any profit whatsoever for the leading and rental

of the equipment they drive. On the contrary, compensation

for the equipment shall be set by Agreement between the

Contractor and the Owner-Operator at a level which will

not circumvent or defeat the payment of wages, fringes and

conditions of any employee covered by this Master Labor

Agreement and which will assure compensation to the

Owner-Operator of not less than the actual cost of operation

of such equipment.

1313. It is further mutually understood and agreed that

the intent of this Article is to assure the payment of wages,

fringes, and conditions as provided in this Master Agree-

ment and to prohibit the making and carrying out of any

plan, scheme or device to circumvent or defeat the payment

of wages, fringes and conditions as provided in this Master

Agreement. Any such agreement, contract or arrangement

presently in existence shall be abrogated upon the execution

of this Agreement.

1314. It is further agreed that the Contractor will not

devise or put into operation any scheme, whether herein

enumerated or not to defeat the terms of this Article of this

Master Agreement, nor shall any Owner-Operator’s ar-

rangement with a Contractor be terminated for the purpose

of depriving any other employee of employment. In the

event that the Contractor has available equipment, the Owner-

ae, ee

Operator may be assigned to operate such equipment on the

job during the period of the repair of the Owner-Operator’s

equipment and not to exceed that work shift and so long as

no employee is laid off to provide work for such equipment.

1315. Compensation for Use of Owner-Operator’s

Equipment:

Compensation of compensable time under this Section

shall start at the time the Owner-Operator has his equipment

in a satisfactory condition and in readiness to perform in

response to a definite order and request from the Contractor

under the provisions of the Agreement. Time shall cease

when the Owner-Operator returns to the point designated

by the Contractor minus any time due to delays beyond the

control of the Contractor, including but not limited to the

breakdown of Owner-Operator’s equipment, or equipment

available for his use, inclement weather, breakdown or

cesation of work on the project affecting the need and/or

use of his equipment.

1316. Any insurance coverage on Owner-Operator’s

equipment desired by the Contractor over and above

$100,000/300,000/100,000 shall be at the sole expense of

the Contractor.

1317. Itis understood by the parties that this Agreement

provides for an Employer-Employee relationship between

the Contractor or subcontractor and each Owner-Operator

of equipment used hereunder.

1318. It is recognized that many Owner-Operators have

executed ‘‘short-form’’ agreements with the Teamsters Union

which incorporate by reference provisions of this Master

Labor Agreement. The provisions of such ‘‘short-form”’

agreement shall be applicable to said Owner-Operators only

in then capacity as employers, i.c., when such Owner-

Operators are employing one or more employees. When

Owner-Operators are working on a job covered by this Mas-

ter Labor Agreement their employment shall be covered by

the Owner-Operator clause of this Agreement.

1319. If a Contractor through the grievance procedure

is found violating any portion of this Article, the Joint Ad-

justment Board or the Impartial Chairman, as described in

Article V, shall require the Contractor to immediately pay

compensatory damages for each Owner-Operator with re-

spect to whom the Contractor is in violation in an amount

equal to the sum of Health and Welfare and Pension con-

tributions, under the terms of this Agreement, for eight hours

for each day or portion thereof the violation occurred, such

damages to be made payable to the Construction Teamsters

Security Fund by check promptly mailed to the respective

Local Union. The Joint Adjustment Board or Impartial

Chairman may also grant such further relief as may be

deemed appropriate.

1319.1. Notwithstanding any other provision of this

Agreement, the sole and exclusive remedy for any violation

of this Article XIII shall be sought under the provision of

Article IV of this Appendix.

1320. Separability:

If any paragraph of this Article XIII should be held invalid

by operation of law or by any tribunal of competent juris-

diction, or if compliance with or enforcement of any para-

graph of this Article XIII should be restrained by such tribunal

pending a final determination as to its validity , the remainder

of this Agreement or the application of such Article or

paragraph to persons or circumstances other than those as

to which it has been held invalid or as to which compliance

with or enforcement of, has been restrained, shall not be

affected thereby. Should the foregoing eventually arise, the

parties agree to negotiate substitute paragraphs or Articles

upon sixty (60) days’ written notice by one to the other. In

the event the parties fail to reach agreement within sixty

(60) days following the beginning of such negotiations,

either party shall be free to take whatever economic or legal

action it may deem necessary in support of its bargaining

position, notwithstanding the no-strike provisions of this

Agreement; provided, however, that the party initiating such

action shall give to the other party a fifteen (15) day written

notice of intention to take such action.

1321. Notwithstanding any other provision of this

Agreement, this Article XIII shall be applicable only to

Owner-Operators performing (or who, upon their employ-

ment, will be performing) work to be done at the site of

construction, alteration, painting, or repair of a building,

structure, or other construction work.

1321.1 The term ‘work to be done at the site of the

construction, alteration, painting or repair of a building,

structure, or other construction work’ as used in the para-

graph 1321 shall include all driving to, from and in con-

nection with hauling materials to or from any source or

disposal site on the one hand, and a geographical site of

construction, on the other hand, in accordance with the

following:

1321.1.1 Delivery of materials to or from commercial

suppliers or public dumps off the primary location shall

always be exempt from the provisions of Article XIII. Any

other general exclusions from the construction industry pro-

viso, previously defined by the NLRB or the courts, shall

continue to be applicable in interpreting Article XIII.

1321.1.1.1 A public dump is a disposal site available

to, and in substantial use by, the public.

1321.1.2 Hauling of materials between a primary lo-

cation and a secondary location not excluded by paragraph

inl

1321.1.1 above that is located five (5) or less miles by the

closest feasible means of access from the nearest boundary

of the primary location shall be work to be done at the site,

effective August 1, 1977.

1321.1.3 Hauling of material between a primary loca-

tion and a secondary location located in excess of five (5)

miles by the closest feasible means of access from the near-

est boundary of the primary location shall not be work to

be done at the site, effective August 1, 1977.

1321.2 Effective January 1, 1978, the mileage outlined

in paragraphs 1321.1.2 and 1321.1.3 will be increased to

six (6). Effective July 1, 1978, the mileage outlined in

paragraphs 1321.1.2 and 1321.1.3 will be increased to seven

(7). Effective January 1, 1979, the mileage outlined in para-

graphs 1321.1.2 and 1321.1.3 will be increased to eight

(8). Effective July 1, 1979, the mileage outlined in para-

graphs 1321.1.2 and 1321.1.3 will be increased to nine (9).

Effective January 1, 1980, the mileage outlined in para-

graphs 1321.1.2 and 1321.1.3 will be increased to ten (10).

1321.3 It is understood that the foregoing shall not in-

clude travel time to and from the Owner-Operator’s home

(or parking place other than his home) to the place or source

of work.

1321.4 Jobs commenced or bid prior to August |, 1977

shall be continued under conditions in effect prior to that

date, for the duration of the project.

1321.5 It is expressly understood that if a haul is cov-

ered by the terms of this Section, all time spent on any

public road shall be covered as well as all other time spent

in connection with such haul.

1321.6 The Owner-Operator shall become a bonafide

employee as defined in paragraphs 1301 and 1302 upon

reporting for work on the first day on that job, such em-

ployee status to be effective from the first hour of work

performed.

1322. Disagreement over interpretation or application

of this Article shall be subject to the Grievance and Arbi-

tration procedure as described in this Appendix.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.