Building Material and Const. Teamsters Union Local No. 216, Intern. Broth. of Teamsters, Chauffeurs, Warehousemen, and Helpers of America v. N.L.R.B.

• Decision Date: 29 September 1975
• Docket Number: Nos. 72-2008,72-2098,s. 72-2008
• Citation: 171 U.S.App.D.C. 440,520 F.2d 172
• Parties: 90 L.R.R.M. (BNA) 2585, 171 U.S.App.D.C. 440, 77 Lab.Cas. P 11,089 BUILDING MATERIAL & CONSTRUCTION TEAMSTERS UNION LOCAL NO. 216, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, & HELPERS OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Bigge Drayage Company, Intervenor. BIGGE DRAYAGE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 172

520 F.2d 172

90 L.R.R.M. (BNA) 2585, 171 U.S.App.D.C. 440,

77 Lab.Cas. P 11,089

BUILDING MATERIAL & CONSTRUCTION TEAMSTERS UNION LOCAL NO.

216, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN, & HELPERS OF

AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Bigge Drayage Company, Intervenor.

BIGGE DRAYAGE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 72-2008, 72-2098.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 17, 1974.

Decided Sept. 29, 1975.

Duane B. Beeson, San Francisco, Cal., of the bar of the Supreme Court of California, pro hac vice, by special leave of court, with whom Angelo V. Arcadipane, Washington, D. C., was on the brief, for petitioner in No. 72-2008.

Robert M. Lieber, Washington, D. C., with whom Wesley J. Fastiff, San Francisco, Cal., was on the brief, for petitioner in No. 72-2098. George J. Tichy, Spokane, Wash., also entered an appearance for petitioner in No. 72-2098 and intervenor in No. 72-2008.

Joseph E. Mayer, Atty., N. L. R. B., with whom John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel and Elliott Moore, Asst. Gen Counsel, N. L. R. B., were on the brief, for respondent.

Before McGOWAN and ROBB, Circuit Judges, and MATTHEWS, ^* United States Senior District Judge, United States District Court for the District of Columbia.

Opinion for the Court filed by Circuit Judge McGOWAN.

McGOWAN, Circuit Judge:

This case arises on cross-petitions for review of the resolution by the National Labor Relations Board of complaints filed by Bigge Drayage Company against Building Materials & Construction Teamsters Union, Local No. 216, alleging violations of Sections 8(e) and 8(b)(4)(ii)(D) of the National Labor Relations Act. 29 U.S.C. §§ 158(b)(4)(ii)(D), (e). The Board found that the contract provisions challenged in the Section 8(e) allegation were valid on their face but invalid as applied, and that the Union's actions constituted a violation of 8(b)(4)(ii)(D). For the reasons stated hereinafter, we affirm the Board's decision on both charges. ¹

I

A. The Parties.

Bigge Drayage Company ("Bigge Drayage"), petitioner in No. 72-2098 and intervenor in No. 72-2008, is composed of several divisions, including Bigge Crane & Rigging Company ("Bigge Crane") and the Trucking Division of Bigge Drayage Company ("Bigge Trucking"). ² The Trial Examiner and the Board found, and the Union does not contest, that Bigge Crane and Bigge Trucking are separate "persons" for the purpose of the Act. (A. 578).

Bigge Crane is engaged in the business of renting cranes, installing and moving machinery, and performing heavy rigging and precast erection work (A. 142-43). With the exception of two trucks that haul crane components and tools to and from job sites, Bigge Crane owns no over-the-road surface trucking units such as those operated by Bigge Trucking (A. 144-45, 153-54). Bigge Crane is a member of the Associated General Contractors of America ("AGC"), and, through that group, is a party to a collective bargaining agreement (the "AGC Agreement") with a number of Construction Teamsters unions, including Local 216.

Bigge Trucking is engaged exclusively in over-the-road transportation of large and heavy items for and related to the construction industry. It performs specialized heavy-load hauling services, such as the transportation of concrete girders weighing as much as 100 tons and measuring as much as 150 feet long (A. 119-20, 204-208). This type of hauling requires special equipment and specialized training (A. 204-208). Bigge Trucking is a member of an employers' group known as the California Trucking Association ("CTA"), and is, through it, signatory to a bargaining agreement (the "CTA Agreement") with a number of Teamster locals representing over-the-road long haul and local pick-up-and-delivery drivers. Locals 70 of Oakland, 85 of San Francisco, and 315 of Richmond are all parties to the CTA agreement.

B. The Bargaining Contracts.

The AGC Agreement between Bigge Crane and Local 216 provided in part:

Section 30 SUBCONTRACTING

C. The Employer further agrees that when subcontracting work covered by this Agreement which is to be

performed within the geographical area covered by this Agreement but which is not to be performed at the site of the construction, alteration, painting or repair of the building, road or other work, he will subcontract such work only to an Employer or person who agrees that the persons performing such work will work in accordance with the schedule of hours and will receive not less than the wages and economic benefits provided in this Agreement including holidays, vacations, premiums, overtime, health and welfare and pension contributions or benefits or their equivalent and any other programs or contributions or benefits or their equivalent and any other programs or contributions required by this Agreement and who further agrees to submit any grievance or disputes concerning his performance or compliance with such undertaking to the procedures set forth in Section 15 of this Agreement.

As to any Employer who has always subcontracted work involving certain equipment, this paragraph shall not become applicable with respect to work involving such equipment if its validity is challenged by charges filed by the National Labor Relations Board until determination by the National Labor Relations Board or if not by the National Labor Relations Board, by a Court of Competent jurisdiction that the provisions are not in violation of the National Labor Relations Act.

D. The Employer will give written notice to the Union of any subcontract involving the performance of work covered by this Agreement within five (5) days of entering into such subcontract and shall specify the name and address of the subcontractor. Any Employer who gives such notice and requires the subcontractor to agree to comply with and observe the provisions of Subsection C hereof with respect to work performed other than at the job site shall not be liable for any delinquency by such subcontractor in the payment of any wages, fringe benefits or contributions provided herein except as provided hereinafter.

The Section 15 referred to in the foregoing paragraph (C) provided a grievance-arbitration procedure for resolving all disputes arising under the Agreement. Excluded from such disputes, however, were jurisdictional conflicts governed by Section 20 of the AGC Agreement which provides as follows:

JURISDICTIONAL DISPUTE

There shall be no cessation of or interference in the work of an Employer by reason of a jurisdictional dispute between the Union and a Union affiliated with the AFL-CIO. Such disputes shall be settled directly between the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, and the Union involved.

The CTA Agreement between Bigge Trucking and Locals 70, 85, and 315 (through the Hauling Teamsters) had a similar provision on resolution of jurisdictional disputes:

ARTICLE 30 Jurisdictional Disputes

In the event that any dispute should arise between any Local Unions, parties to this Agreement, Supplements or Riders thereto or between any local Union, party to this Agreement, Supplements or Riders thereto and any other Union, relating to jurisdiction over employees or operations covered by such Agreements, the Employer and the Local Unions agree to accept and comply with the decision of settlement of the Unions or Union bodies which have the authority to determine such dispute, and such disputes shall not be submitted to arbitration under this Agreement, Supplement, or Riders thereto.

C. The Charges.

The charges arose out of events involving work performed on two separate construction jobs: the Bay Area Rapid Transit (BART) job and the "China Basin" highway construction job.

1. The BART Job.

Hensel Phelps Construction Company, the general contractor on the BART project, subcontracted the manufacture, transportation, and erection of pre-stressed concrete girders to Castcon, Inc., a company engaged in the manufacture of such girders (J.A. 570; 68, 99, 115) Castcon in turn subcontracted the transportation and erection of the girders to Bigge Crane (J.A. 571; 116, 143, 146) which, as has been noted, was equipped to erect, but not to transport, the girders. Bigge Crane therefore subcontracted the transportation of the girders to Bigge Trucking (J.A. 571; 99, 223).

Castcon transported the girders, which were approximately 70 feet in length and weighed as much as 100 tons (J.A. 570-71; 117), from its plant in Richmond, California, to Pier 42 in San Francisco. Bigge Trucking transported the girders from Pier 42 to the BART job site. Due to the size of the girders, special equipment was necessary, consisting of a pilot truck, two heavy duty tractors pulling a double gooseneck trailer, a tiller unit manned by a tiller man, and a rear escort truck (J.A. 119-20, 205-06, 215-19, 225-28). A composite crew of members of Locals 70 and 85 were used on this job (J.A. 119, 222, 458).

2. The China Basin Job.

The China Basin project was similar in most respects, the major differences being that the general contractor was Caputo Construction Company and that some of the girders could be hauled directly from Castcon's plant on equipment that did not require a tiller man while other girders, which were up to 145 feet long, not only were barged but also required that Bigge Trucking design and build a special piece of equipment for their transportation (J.A. 118-20, 225-27).

D. The Events Leading up to the Charges.

The Hearing Examiner and the Board found, and the Union does not dispute, the facts leading up to and subsequent to the charges. In December, 1969, Dallas Craig, president and business agent of Local 216 (the union representing the employees of Bigge Crane), learned that Bigge Trucking was transporting girders in San Francisco from Pier 42 to the BART...