Carpenters District Council of St. Louis

CARPENTERS DISTRICT COUNCIL OF ST. LOUIS, ETC . 989 Carpenters District Council of St. Louis affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Stephen Gorman Bricklaying Co., Inc. and Bricklayers Local Union No. 1 of Missouri, affiliated with Bricklayers, Masons and Plasterers International Union of America, AFL- CIO and International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO.1 Case No. 14-CD-159. April 21, 1964 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, following the filing of charges under Section 8 (b)-(4) (D), by Stephen Gorman Bricklaying Co., Inc., herein called Gorman, alleging that Carpenters District Council of St. Louis affiliated with United Brotherhood of Carpenters and Joiners of America, AFL- CIO, herein called Respondent or Carpenters, had induced and en- couraged employees to strike for the purpose of forcing or requiring Gorman to assign certain work to employees represented by Carpenters rather than to employees represented by Bricklayers Local Union No. 1 of Missouri, affiliated with Bricklayers, Masons and Plasterers In- ternational Union of America, AFL-CIO, herein called Bricklayers. Pursuant to notice, a hearing was held before Hearing Officer Joseph H. Solien on November 26 and 27 and December 2, 3, 4, and 5, 1963, at which all parties appeared, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. The Respondent, Bricklayers, Gorman, and the Mason Contractors As- sociation filed briefs which have been duly considered. Upon the entire record in this case, the Board 2 makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Gorman is a Missouri corporation engaged in the masonry contract- ing business. In the operation of its business, Gorman annually re- ceives; goods and materials from outside the State of Missouri valued in excess of $50,000 and annually performs services outside the State i International Association of Bridge, Structural and Ornamental Iron Workers AFL- CIO, herein called the Iron Workers, was permitted to intervene at the hearing as a Party in Interest. The Mason Contractors Association of America was also permitted to inter- vene for the limited purpose of introducing evidence concerning industry practice. 2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [ Chairman McCulloch and Members Leedom and Brown]. 146 NLRB No. 114. 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Missouri valued in excess of $50,000. The Board's jurisdiction over Gorman is not contested. We find that Gorman is engaged in com-; - merce within the meaning of the Act. 2. THE LABOR ORGANIZATIONS INVOLVED The Carpenters, Bricklayers, and Iron Workers are labor organiza- tions within the meaning of Section 2 (5) of the Act. 3. THE DISPUTE A. Facts The work involved in this dispute consists of the unloading,-.han- dling, rigging, erecting, setting, plumbing, aligning, bracing, staying, leveling, and anchoring by bolting and/or welding of precast concrete exterior wall panels. In August 1962, Gorman, a masonry contractor in the St. Louis, Missouri, area, entered into a contract to install precast concrete ex-, terior wall panels and to perform all the brick work on a proposed 11-story office building located at 121 Meramec Avenue, Clayton, Missouri, herein referred to as 121 Building. The exterior of the 121 Building consists of vertical rows of bricks interspaced with rows of windows. From the 2d through the 10th floor of the building, precast concrete panels, measuring approximately 5 feet long, 31/2 feet wide, and 4 inches thick, serve as dividers between windows on one floor and windows on the floor above. These panels extend above and below the exterior part of the floor. Upon arrival of trucks bringing the panels from their place of manufacture in Des Moines, Iowa, the panels were unloaded and hoisted to the floors to be stored until ready for installation. When the brick walls reached a predetermined height, a lintel was set in the brick reaching from one brick column to the other. Mortar was spread on the lintel; the panel, taken from its storage site, was lowered by means of chains and pulleys onto the lintel; and pieces of metal attached to the lintel were fitted into holes in the bottom of the panel. The panel was then plumbed, levelled, and aligned to assure a proper fit, and the mortar, designed to seal any spaces between the lintel and the panel, was raked. The panel was further secured to the building by bolting the panel with two bolts set into the floor and an angle iron set into the panel. Work commenced on the building in January 1963. Gorman assigned all work connected with the installation and erection of the panels to a composite crew comprised of two to five employees repre- sented by the Iron Workers and one employee represented by the Bricklayers,' with the ironworkers performing all of the work de- 8 The Bricklayers represents both bricklayers and stonemasons CARPENTERS DISTRICT COUNCIL OF ST. LOUIS, ETC. 991 scribed above with the exception of the leveling, plumbing, and align- ing of the panels- and the laying and raking of the mortar, which was done by the stonemasons. The brick walls were erected by other bricklayers employed by Gorman and the windows were installed by glaziers 4 In the summer of 1963, the Carpenters, through its International, submitted a dispute to the National Joint Board for the Settlement of Jurisdictional Disputes, herein referred to as Joint Board, involv- ing the erection and installation of the panels on the 121 Building, claiming that employees represented by the Carpenters rather than those represented by the Bricklayers were entitled to the work.' On August 22, 1963, the Joint Board issued its decision awarding the work to the Carpenters. Shortly thereafter, Adams, ' a business manager of the Carpenters, telephoned Gorman's persident, and asked if Gorman intended to abide by the Joint Board's decision awarding the work to the Carpenters. Gorman replied that it would not. Thereafter, on Friday, September 13, 1963, at approximately 2:30 p.m., a picket appeared at the 121 Building carrying a sign which read : Notice To Public : Stephen Gorman Bricklaying Co. refuses to abide by a decision by the Joint Board for Settlement of Jurisdictional Disputes of Building Trades Department, AFL-CIO. and then below, The Carpenters District Council of St. Louis, AFL-CIO. Work continued for the remainder of that day, but on the following Monday, when the picket reappeared, employees of Gorman as well as employees of other contractors refused to cross the picket line. All employees returned to work after a period of 2 weeks. At the time of the hearing herein, the construction of the 121 Building had been completed. B. Contentions of the parties As noted, both Carpenters and Bricklayers have agreements with Iron Workers that the composite crews doing disputed work should 4 The installation of the panels on the 1st and 11th floors of the building followed the same basic procedure as the other floors with the exception that these panels were larger in size, extending the entire length of the floor r Both the Carpenters and the Bricklayers have agreements with the Iron workers that any work involving the erection and installation of precast concrete exterior wall panels is to consist of a composite crew including members of the Iron Workers . Although Gorman does not employ carpenters , it arranges to obtain carpenters when needed from the general contractor on the fob. 744-676-65-vol 146-64 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD include employees represented by Iron Workers. Gorman and the Bricklayers contend that the assignment by Gorman of stonemasons to the composite crew was proper on the grounds that : (1) The assign- ment was consistent with Gorman's past practice of assigning similar work to a composite crew of ironworkers and stonemasons; (2) the assignment was consistent with trade practice throughout the country; (3) the work of erecting and installing the panels requires skills and tools possessed only by stonemasons; (4) precast concrete as used for exterior walls is a substitute for precut stone, which has always been installed by stonemasons; and (5) Gorman is not bound by decisions of the Joint Board. The Carpenters contend that the work of erecting and installing the panels should have been assigned to a composite crew including carpenters on the grounds that : (1) The practice in the St. Louis area has been for carpenters to erect and install precast concrete panels; (2) the work of erecting and installing the panels requires skills and tools possessed only by carpenters; and (3) the Joint Board has issued a decision awarding the very work in dispute to Carpenters. The Iron Workers appeared at the hearing but otherwise did, not participate in these proceedings. C. Applicability of the statute Before the Board may proceed to a determination of a dispute, it must be satisfied that there is reasonable cause to believe that Section 8(b) (4) (D) of the Act has been violated. We find, on the basis of the foregoing and the entire record, that there is reasonable cause to believe that a violation of Section 8(b) (4) (D) has occurred and that the dispute is properly before the Board for determination under Section 10 (k) of the Act .6 D. Merits of the dispute Section 10(k) of the Act requires the Board, after giving due con- sideration to various relevant factors, to make an affirmative award of disputed work. The following factors are asserted in support of the claims of the parties herein. 6 The Carpenters introduced into evidence an award of the Joint Board dated August 22, 1963, which awarded the work in dispute to Carpenters The parties agreed that the Carpenters and Bricklayers are bound by decisions of the Joint Board by virtue of their affiliation with the AFL-CIO Building and Construction Trades Department. However, there is no evidence that Gorman is bound by the decision of the Joint Board and Gorman contends that be is not bound . The Board has previously held that where one party has not agreed to be bound by a decision of the Joint Board, it cannot be said that the parties have submitted satisfactory evidence that they have adjusted, or agreed upon voluntary methods for the adjustment of, the dispute. International Union of Operating Engineers, Local 66 (Frank P. Badolato and Son ), 135 NLRB 1392. CARPENTERS DISTRICT COUNCIL OF ST. LOUIS, ETC . 993 1. Assignment by 'the Employer: Gorman assigned the disputed work to a composite crew of ironworkers and a stonemason. The stonemason was an employee of Gorman and a member of the Bricklayers. 2. Employer past practice : In past instances in which Gorman con- tracted to erect and install precast concrete panels involving work sub- stantially similar to the work in dispute, Gorman assigned the work to a composite crew of ironworkers and stonemasons. 3. Skills : Both the Carpenters and the Bricklayers contend that the disputed work involved skills and tools unique to their respective trades. In this connection the record indicates that employees repre- sented by each of these unions have the skills necessary to erect and install the precast concrete panels. Further, although the trowel which is used to straighten the mortar on the lintel is a bricklayer's tool, other tools utilized in the course of performing the disputed work, such as a transit, are carpenter's tools. The record also indicates that the Carpenters have schools in the St. Louis area which offer instruc- tion in the skills necessary to perform the work in dispute. However, as noted, stonemasons in the St. Louis area also possess these skills. Nor do we accord any weight to the fact that other work performed in connection with the panels, such as grouting, tuckpointing, and re- pair work, is done solely by bricklayers, since such work is done after the disputed work of installing the panels has been completed and it is not performed by members of the composite crew that install the panels.' We therefore conclude that the skill factor favors neither the Bricklayers nor the Carpenters. 4. Efficiency'of operations: The Bricklayers contends that as brick- layers performed work on the job other than the disputed work, the use of a stonemason in the composite crew made for a more efficient opera- tion in the Employer's construction of the building, since the stone- mason installing the panels could spend idle time assisting the brick- layers to do other work. We find no merit in this contention since the record indicates that in fact the stonemason member of the com- posite crew at the 121 Building did no work other than installing the precast panels. 5. Area and industry practice: Considerable testimony was taken as to the assignment of work involved in the erection and installation of precast concrete panels in the St. Louis area and throughout the 7 The Carpenters contends that the fact that the stonemason assigned to the composite crew in the present case performed only the work of aligning , plumbing, and leveling of the panels shows that the stonemasons lack the necessary skills to perform all of the disputed work. We find no merit in this contention as there is no explanation in the record for the particular division of work between ironworkers and stonemasons at the 121 Building and the record otherwise indicates that stonemasons in the St. Louis area are sufficiently skilled to perform all facets of the disputed work and have done so on other jobs in the area. 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD country. It appears that area practice in other parts, of the country favors the Bricklayers. However, it is also apparent from the record that even within the St. Louis area, stonemasons have performed work similar to the work in dispute on a number of occasions. We also deem it significant that a sizable proportion of the erection and in- stallation of precast panels done by carpenters in the St. Louis area involved the "tilt-up" type of panel construction. Unlike the panels involved in the present case, which are prepared away from the job- site, the "tilt-up" panels are prepared on the jobsite by pouring con- crete into forms constructed by carpenters and thereafter raised into place for installation. The Bricklayers do not claim the work in- volved in the erection and installation of panels of the "tilt-up" variety because an integral part of the work is the construction of forms which requires the skills of a carpenter. 6. Decisions of the Joint Board: Both the Carpenters and the Bricklayers rely respectively on various decisions of the Joint Board which in some instances awarded work similar to that in dispute to carpenters and in others to stonemasons. In United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local 1622 (0. R. Karst),' where the competing unions also offered conflicting decisions of the Joint Board supporting their various positions, the Board stated, "We do not believe that such decisions indicate more than that the instant dispute between the Unions is one of long standing and that neither Union has conceded to the other the right to perform the work in dispute." The same may be said in this case. We shall therefore accord no weight to the decisions of the Joint Board. - 7. Other factors: ° The Bricklayers introduced evidence to show that precast concrete exterior wall panels are considered by architects and masons to be a substitute for stone panels in the construction of exterior walls for buildings, and that the work required in the installa- tion of precast panels is basically the same as that in the installation of stone panels, which work has traditionally been that of bricklayers. No evidence to the contrary was presented by the Carpenters. We find that this factor favors the Bricklayers. E. Conclusion as to the. merits of the dispute In International Association of Machinists, Lodge No. 1743 (J. A. Jones Construction Company)," the Board set forth certain criteria to be considered in assigning disputed work, and noted that each de- 6 139 NLRB 591. 6 Neither union is certified as representative of Gorman 's employees . Although Gorman has a collective-bargaining agreement with the Bricklayers and not with the Carpenters, we do not rely upon the Bricklayers' agreement as a factor in assigning the work as this agreement does not describe the work ,to be performed by the stonemasons involved herein. 10 135 NLRB 1402. 1 CARPENTERS DISTRICT COUNCIL OF ST. LOUIS, ETC . 995 cision would be based upon commonsense, experience, and a balancing of the relevant factors. Weighing the pertinent factors in this case, we believe that employees represented by the Bricklayers are entitled to the work in dispute. In reaching this conclusion, we rely on the facts that Gorman awarded the work in dispute to employees repre- sented by the Bricklayers,' stonemasons are sufficiently skilled to per- form the work and have performed it to the satisfaction of Gorman who desires to continue using them, the assignment of the work con- forms to Gorman's past practice, and construction of exterior walls of buildings has traditionally been the work of bricklayers and stone- masons. Accordingly, we shall determine the jurisdictional dispute by deciding that employees represented by Bricklayers rather than those represented by Carpenters, are entitled to the work in dispute." In making this determination, we are assigning the disputed work to the employees of Gorman who are represented by the Bricklayers, but not to that union or its members. DETERMINATION OF THE DISPUTE Upon the basis of the foregoing and the entire record in the case, the Board makes the following Determination of Dispute pursuant to Section 10 (k) of the Act : 1. Employees of Stephen Gorman Bricklaying Co., Inc., currently represented by Bricklayers Local Union No. 1 of Missouri, affiliated with Bricklayers, Masons and Plasterers International Union of America, AFL-CIO, are entitled to perform the following work: Unloading, handling, rigging, erecting, setting, plumbing, align- ing, bracing, staying, leveling, and anchoring by bolting and/or welding precast concrete exterior wall panels.' 2. Carpenters District Council of St. Louis affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is not entitled, by means proscribed by Section 8(b) (4) (D) of the Act, to force or require the Employer to assign the above work to carpenters who are represented by it. u The construction of the 121 Meraiiiec Building where the instant dispute arose has been completed . Our assignment is to be regarded as limited to the facts and circum- stances of the controversy which gave rise to these proceedings , and shall cover the assignment by Gorman of the work in dispute in any area where the geographical juris- diction of Bricklayers Local Union No. 1 of Missouri , affiliated with Bricklayers, Masons and Plasterers International Union of America, AFL-CIO, and Carpenters District Council of St. Louis affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, coincide. International Union of Operating Engineers, Local 66 (Frank P. Badolato and Son ), supra, at 1401 >a This award affects only the respective claims of stonemasons and carpenters to said work, and is without prejudice to whatever rights employees represented by the Iron Workers may have with respect thereto 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Within 10 days from the date of the Decision and Determination of Dispute, Carpenters District Council of St. Louis affiliated with United Brotherhood of Carpenters and Joiners of America, AFL- CIO, shall notify the Regional Director for the Fourteenth Region, in writing, whether it will refrain from forcing or requiring the Em- ployer, by means proscribed in Section 8 (b) (4) (D), to assign the work in dispute to carpenters rather than to stonemasons. Phaostron Instrument and Electronic Company and Communi- cations Workers of America, AFL-CIO. Case No. 21-CA- 5332-1. April 23, 1964 DECISION AND ORDER On September 24, 1963, Trial Examiner Maurice M. Miller issued his Decision in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The Gen- eral Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings 1 of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the Respondent's exceptions and brief, the Gen- eral Counsel's brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.2 1 The Respondent excepts to the Trial Examiner's rejection of its offer of proof con- cerning testimony of Respondent's employees Olivo, Shipley, Jason, and Haynes . Accord- ing to the Respondent , if permitted , these employees would have testified about what occurred during union meetings held on April 24 and 30 and May 6, 1963 , and this evi- dence would show that no declarations or pledges of mutual assistance were made by those attending such meetings. We affirm the Trial Examiner's rejection of the proffered evi- dence because , like the Trial Examiner, we find that the spontaneous and simultaneous nature of the work stoppage herein qualifies it as protected concerted activity. N.L.R.B. v. Washington Aluminum Company, Inc., 370 U.S. 9. Under these circumstances , there is no legal prerequisite that there be a prior consensus for, mutual support among those who participated in the walkout. 2 Respondent excepts on the ground that the allegations in the complaint are not ade- quately supported by the charge filed herein . We find no merit in this contention. See N.L.R.B. v. Pecheur Lozenge Co., Inc., 209 F. 2d 393 (C.A. 2), cert. denied 347 U.S. 953; cf. N.L.R.B. v. Indiana & Michigan Electric Company, 318 U.S. 9, 18. 146 NLRB No. 124.