International Union of Operating Engineers, Local No. 701, Afl-Cio v. National Labor Relations Board

The National Labor Relations Board seeks enforcement of its order, published at 216 N.L.R.B. 45 , requiring the Union to cease and desist from violating 29 U.S.C. § 158 (e), by maintaining or enforcing Arti- ele XIX of its, current collective bargaining agreement. The Union had earlier filed a petition for review of the Board’s order, but that petition has been dismissed.

In our opinion, the issues in this case are the same as those decided in Acco Construction Equipment, Inc. v. NLRB, 511 F.2d 848 (9th Cir. 1975). The Board correctly found that Article XIX affects secondary employers such as manufacturers and equipment dealers because it requires post-warranty workers utilized in repair or service work to be covered by the collective bargaining agreement. See National Woodwork Mfrs. Ass’n. v. NLRB, 386 U.S. 612, 644-45 , 87 S.Ct. 1250 , 18 L.Ed.2d 357 (1967). The Union’s second contention is that, even if Article XIX is a hot cargo clause, it is permitted by the construction industry proviso of Section 8(e), 29 U.S.C. § 158 (e). In the Union’s view, while the clause states that it covers work performed “at or near” the jobsite, the clause has actually been interpreted to mean…