Building Material and Dump Truck Drivers, Teamsters Local Union No. 36 v. N.L.R.B.
| Decision Date | 04 December 1981 |
| Docket Number | 80-1807 and 80-1808,Nos. 80-1503,I,A,No. 36,36,s. 80-1503 |
| Parties | 108 L.R.R.M. (BNA) 3153, 215 U.S.App.D.C. 373, 92 Lab.Cas. P 13,139 BUILDING MATERIAL and Dump Truck Drivers, Teamsters Local Union, etc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, California Dump Truck Owners Association, Larry Shepard, Associated General Contractors of America, et al., Intervenors. CALIFORNIA DUMP TRUCK OWNERS ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Building Material and Dump Truck Drivers, Teamsters Local , Intervenor. Larry SHEPARD, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Building Material and Dump Truck Drivers, Teamsters Local , Associated General Contractors of America, California Dump Truck Owners Association, Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Richard D. Prochazka, San Diego, Cal., for Building Material and Dump Truck Drivers Teamsters Local Union No. 36 petitioners in No. 80-1503 and intervenor in No. 80-1807 and 80-1808. Robert M. Baptiste and John E. Santucci, Jr., Washington, D. C., also entered an appearance for petitioner.
Robert F. Gore, Springfield, Va., for petitioner in No. 80-1808 and Intervenor Larry Shepard in No. 80-1503.
Robert B. Shanks, Washington, D. C., for California Dump Truck Owners Ass'n petitioner in No. 80-1807. William C. Bottger, Jr. and Robert V. Kuenzel, Los Angeles, Cal., were on the brief for California Dump Truck Owners Ass'n petitioner in No. 80-1807 and intervenor in No. 80-1503 and 80-1808.
David S. Fishback, Atty., N. L. R. B., Washington, D. C., with whom Elliott Moore, Deputy Associate Gen. Counsel and Carol De Deo, Atty., N. L. R. B., Washington, D. C., were on the brief for respondent.
Robert W. Bell, Jr., San Diego, Cal., Associated Gen. Contractors of America, et al., intervenor in Nos. 80-1503 and 80-1808. James K. Smith, San Diego, Cal., also entered an appearance for Associated Gen. Contractors of America, et al., intervenor in Nos. 80-1503 and 80-1808.
Before McGOWAN and ROBB, Circuit Judges, and JAMESON *, United States Senior District Judge for the District of Montana.
Opinion for the Court filed by Circuit Judge ROBB.
These cases are here on petitions to review the order of the National Labor Relations Board in Building Material & Dump Truck Drivers, Teamsters Local Union No. 36, etc., 249 N.L.R.B. No. 38 (1980). The Board ordered the Building Material and Dump Truck Drivers, Teamsters Local Union No. 36 and the Associated General Contractors, San Diego Chapter, Inc., the San Diego Building Contractors Association, the Engineering and General Contractors Association, and their employer members (the Contractors) to cease enforcing certain provisions of a Master Labor Agreement entered into by the Union and the Contractors in 1977. The Board found that the 1977 Master Labor Agreement required signatory employers to cease dealing with non-union dump truck operators who are independent contractors, thus violating section 8(e) of the National Labor Relations Act. 29 U.S.C. § 158(e) (1976). 1
The Union has petitioned for review of the Board's order, arguing that the Board erred in finding that the truck operators in question are independent contractors. The Associated General Contractors have intervened in support of the Board's order. The California Dump Truck Owners Association, an association of independent dump truck owner-operators, and Larry Shepard, an individual dump truck owner-operator, were charging parties before the Board. They have also petitioned for review, arguing that the remedy awarded by the Board is inadequate. We affirm the Board's order in all respects.
The dispute arises out of the building and construction industry in San Diego County, California. The practice in that industry is that building contractors hire dump truck operators on a day-to-day basis to haul materials to and from construction sites. The contractors generally obtain the services of dump truck operators through brokers, who refer hauling jobs to individual operators, handle billing for services rendered, and generally coordinate arrangements between the contractors and the truck operators. The brokers receive a commission based on the amount billed. Larry Shepard, one of the petitioners, is a dump truck owner-operator who generally accepts referrals from the Terra Trucking Company, one of the brokers in the San Diego area. Petitioner California Dump Truck Owners Association is composed of owner-operators who operate through brokers.
Since at least 1965 the Union and the Contractors have negotiated master labor agreements to govern hauling work performed in the San Diego area. There has been a dispute during that same period between the Union and the non-union truck operators over the availability of hauling jobs for non-union truck operators. The Union sought terms in each new agreement to prohibit dealings with non-union operators. The 1977 Master Labor Agreement contained such terms. Section 4 of the Agreement required signatory contractors to transport "all materials ... to or from or on the site of the work by workmen furnished by the appropriate craft UNION ...." Under section 42(B)(1) of the Agreement only union truck operators were cleared by the Union for work with the Contractors. The Agreement also provided that signatory contractors could procure the services of truck operators only through a "person, firm, or corporation ... signatory to an agreement with the Union". Section 42(B)(2). Other provisions of the Agreement required the Contractors to treat owner-operators as employees, section 42(B)(4), and penalized contractors who failed to comply with the Agreement. Section 42(B)(9)(12) & (13). In short, under the 1977 Agreement the Union enlisted the aid of the Contractors to insure that only signatory brokers received subcontracts and only union truck operators performed hauling services for building contractors in the San Diego area. The Board found that the Union and the Contractors enforced the Agreement against brokers and non-union dump truck operators.
In November 1977 the Kissinger Trucking Company, a broker, entered into a contract with the Penhaul Company to supply hauling services for a demolition project. Shortly after the project began, Kissinger's manager was informed that Kissinger would be replaced because it was referring non-union truck operators. Penhaul had signed the 1977 Agreement and could not, under the terms of that agreement, contract with a broker that referred non-union truck operators. Kissinger Trucking lost the contract with Penhaul and subsequently signed the 1977 Agreement.
The Agreement was also enforced against Terra Trucking, Larry Shepard's usual broker. Terra Trucking has been a party to master labor agreements since 1974, and so was required by the 1977 Agreement to refer only union truck operators to building contractors. In August 1978 Terra Trucking's president, Fred ReCupido, received a letter from the Union stating that under the Agreement he must not deal with seven non-union truck operators, including Shepard. ReCupido informed the seven truck operators that they must join the Union or make other arrangements for brokerage of their services. Shepard joined the Union under protest. Some of the seven non-union truck operators did not join the Union but continued to accept referrals from Terra Trucking.
In December 1977 the Dump Truck Owners filed a charge with the Board alleging that the Agreement violated section 8(e) of the Act. The charge alleged that the Union and the Contractors had agreed to cease, and had actually ceased, doing business with the non-union dump truck operators. In October 1978 Larry Shepard filed a similar charge against the Union, alleging that the Union had violated sections 8(b)(4) 2 and 8(e) of the Act by pressuring Terra Trucking not to broker his services because he did not belong to the Union notwithstanding that he is an independent contractor. At the request of the Regional Director, Shepard filed a new charge containing only the 8(e) allegation.
In January 1979 the Regional Director consolidated the two charges and issued a complaint alleging only a violation of section 8(e) by the Union and the Contractors. After a full trial the Administrative Law Judge found that the truck operators are independent contractors and not employees under the Act. Thus, the Union and the Contractors violated section 8(e) by agreeing not to do business with the non-union truck operators and their brokers. The ALJ recommended that the Board order the Union and the Contractors to cease and desist from enforcing the unlawful provisions of the Agreement. The ALJ further recommended that the Union and the Contractors be ordered to make whole those truck operators who were compelled to join the Union and pay dues, initiation fees, assessments, and contribute to Union trust funds.
On exceptions and briefs the Board affirmed the ALJ's findings and conclusions, as relevant here, but deleted the make-whole remedy recommended by the ALJ. The Board ordered the Union and the Contractors to cease enforcing the unlawful portions of the Agreement and to post notices. The Union, Mr. Shepard, and the Dump Truck Owners petition for review and the Board petitions for enforcement of its order.
The first question presented by the petitions for review is whether the Board correctly found that the Union and the Contractors violated section 8(e) of the Act by agreeing not to deal, and ceasing to deal, with certain brokers and non-union truck operators. Section 8(e) prohibits "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". 29 U.S.C. § 158(e) (1976). 3 This...
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