Subordinate Union No. 30

SUBORDINATE UNION NO. 30 945 Subordinate Union No. 30 of Illinois of the Bricklayers, Masons and Plasterers International Union of America, AFL-CIO and Cerro Copper and Brass Company, a Division of Cerro Corporation and United Steelworkers of America, AFL-CIO. Case 14-CD-214. May 24,1967 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On January 3, 1967, Trial Examiner Gordon J. Myatt issued his Decision in the above-entitled proceeding, finding that the Respondent 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 with supporting arguments. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings 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 exceptions and supporting arguments, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner and orders that Respondent, Subordinate Union No. 30 of Illinois of the Bricklayers, Masons and Plasterers International Union of America, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order. (hereinafter called the Employer), alleging a violation of Section 8(b)(4)(ti)(D) of the National Labor Relations Act, as amended, by Subordinate Union No. 30 of Illinois of the Bricklayers, Masons and Plasterers International Union of America, AFL-CIO (hereinafter referred to as Respondent Union), in connection with a work assignment, the Board, pursuant to Section 10(k) of the Act, conducted a hearing at St. Louis, Missouri, on January 13, and February 8 and 9, 1966, to determine the dispute. On June 27, 1966, the Board issued a Decision and Determination of Dispute which is reported at 159 NLRB 1430. The Board found a dispute over a work assignment did in fact exist, and that there was "reasonable cause to believe" that the Respondent Union threatened to engage in picketing for the purpose of forcing assignment of the work to its members or to employees represented by it, rather than to employees represented by United Steelworkers of America, AFL-CIO (herein called the Steelworkers). Such circumstances were deemed sufficient by the Board to determine the dispute within the meaning of Section 8(b)(4) and Section 10(k) of the Act. The Board then determined the dispute by holding that: (1) the Employer's bricklayers represented by the Steelworkers were entitled to perform the disputed work of laying refractory brick in the Employer's smelting and melting furnaces; and (2) the Respondent Union was not entitled, by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to assign the disputed work to its members. As a part of its Decision, the Board required the Respondent Union to notify the Regional Director for Region 14 within 10 days of the date of the Decision, in writing, whether or not it would refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) to assign the work in dispute to its members. On August 4, 1966, the General Counsel of the Board issued a complaint and notice of hearing alleging that the Respondent Union failed and refused to comply with the Board's Decision and Determination of Dispute. The Respondent Union's answer admits certain allegations of the complaint, but denies the commission of any unfair labor practices. The answer further pleads as an affirmative defense that the Board's Decision and Determination of Dispute was made in disregard of the evidence and based on "surmise, conjecture and unwarranted presumption without factual foundation." A hearing in this matter was held before me in St. Louis, Missouri, on June 23, 1966. Subsequent to the hearing the General Counsel and the Charging Party submitted briefs, which have been duly considered by me in this Decision. Upon the entire record in this case,' and upon my evaluation of the witnesses based on my observation of their demeanor, and upon the evidence contained in the record, I make the following: TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GORDON J. MYATT, Trial Examiner: Following the filing of a charge on November 3, 1965, by Cerro Copper and Brass Company, a Division of Cerro Corporation I Pursuant to Section 102 92 of the Board's Rules and Regulations, Series 8, as amended, the entire record in the underlying 10(k) proceeding and the Board's Decision and FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS On the basis of the facts alleged in the complaint, admitted by Respondent, and found by the Board in the 10(k) proceeding, I find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Determination of Dispute constitute a part of the record in this case, and, as such, have been reviewed by me in arriving at my decision in this matter 164 NLRB No. 124 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. THE LABOR ORGANIZATIONS INVOLVED As alleged in the complaint , admitted in the answer, and found by the Board in the 10(k) proceeding, both Subordinate Union No. 30 of Illinois of the Bricklayers, Masons and Plasterers International Union of America, AFL-CIO, and United Steelworkers of America, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Operative Facts In October 1965,2 the Employer had three construction projects in progress at its Monsanto, Illinois, facility. These projects involved the construction of an administration building, an annealing furnace, and a control room and shell of an electric shaft furnace. The work on these projects was being performed by outside contractors who employed members of the various building and construction craft unions, including members of the Respondent Union. On October 22, Dale Gillis, business representative of the Respondent Union, visited the Employer's plant to check on the work being performed by members of his Union. While there, Gillis noticed the shell of the electric shaft furnace, and upon inspection he determined that it had to be lined with refractory brick.3 Gillis was told by the general contractor's superintendent that Paul Tandler was the chief engineer and supervisor of construction for the Employer. Gillis then placed a call to Tandler from the guard shack on the property. There is sharp conflict in the testimony concerning the substance of the telephone conversation and the events which followed thereafter. Tandler testified that Gillis asked why the refractory brick work "was not assigned to his Union, since all of the other work [on the project] had been assigned to construction crafts." Tandler explained that under the terms of the Employer's contract with the Steelworkers' the Company was obligated to assign the work to its employees if they were qualified. According to Tandler, Gillis then asked to meet with him personally, and arrangements were made to meet in Tandler's office an hour later. Gillis, on the other hand, testified that there was no conversation concerning the assignment of the brickwork to Cerro's employees and that the conversation merely entailed the arrangements to meet with Tandler later. Tandler and Gillis met at approximately 10:30 a.m. According to Tandler, Gillis repeated his statement that the refractory work should have been awarded to members of his Union. Tandler again informed Gillis that under the terms of the Employer's contract with the Steelworkers the Company had an obligation to assign such work to its employees provided that they were qualified and were t Unless otherwise noted, all dates hereafter refer to 1965 3 Refractory brick work consists of the installation of fire- resistant brick or refractories and mortar in a steel shell This special type of brick provides a heat- and leak-proof lining to the furnace " All of the Employer's production and maintenance workers were represented by the Steelworkers 5 COCA is an association of industrial owners formed to promote a better relationship between the industrial companies, the construction contractors, and the craft unions in the area of industrial construction available to perform the work. In addition, Tandler stated that the work was of a highly specialized nature involving a number of possible changes which made it necessary for the Employer to keep the work under its control. Gillis then asked if the Company belonged to the Council of Contractors Association (COCA) ,5 and when informed that the Employer did belong to this organization, Gillis suggested that they solicit the opinion of COCA on the matter. Tandler placed a call to John Fallon, labor relations director of COCA, and a four-way conversation took place between Tandler, Gillis, Fallon, and Kurt Schaeffer, also connected with COCA. Tandler testified that he explained the Company's position on the assignment of the refractory brick work, and that Gillis stated "that it was very unusual to have a job that was entirely carried on by building trades split up so that `inplant' employees were getting part of the work." According to Tandler, Fallon expressed the view that the assignment was permissible, and he cited as precedent a similar situation involving another company where pipefitting work was divided between inplant employees and members of a craft union. Tandler testified that Gillis concluded the conversation by saying, "we will )ust have to see." Gillis, on the other hand, testified that he told Fallon that he was merely trying to determine if there had been a prejob conference 6 on the project, and who was going to be the contractor. Gillis denied stating that the refractory brick work looked like a "building trades job." However, when he testified concerning this same conversation in the underlying 10(k) proceeding, Gillis stated that "Mr. Tandler explained that he was going to possibly assign a refractory furnace to the Steelworkers, his own employees, and I was maintaining that it should be other people, and I told John [Fallon] my side of it, that I thought it was strictly a building trades job ...." Fallon also testified concerning the telephone conversation. His recollection of the specific details of the conversation was not too clear; however, he did testify that the issue was over the assignment of refractory work to inplant employees. Sometime after the telephone conversation, Gillis paid a visit to William Horstman, executive secretary of the Council of Southern Illinois Building and Construction Trades Business Representatives.7 Both Gillis and Horstman claim that the only purpose of Gillis' visit was to determine if Horstman's records indicated that a prejob conference had been held on the Cerro project. When Horstman's records showed that a conference had not been held, he contacted Fallon and requested that a meeting be scheduled. Fallon arranged for a conference with the Employer's representatives for the following Monday, October 25. In the 10(k) proceeding, however, Horstman's testimony indicated that Gillis' concern embraced more than just a prejob conference. There, according to Horstman, Gillis inquired about a prejob 6 Fallon's duties include setting up prejob conferences on proposed construction The purpose of such a conference is to allow the owner, the contractors, and the craft unions to explore any areas of jurisdictional dissension between two or more crafts in an effort to resolve the dispute before it impedes the construction ' This organization is composed of approximately 60 unions in the Building Construction Trade Meetings are generally held on Thursdays of every week, and the member unions are represented by their business agents SUBORDINATE UNION NO. 30 conference and indicated "that he was concerned about who had the contract for the brick work." On October 25, Fallon and Horstman met with Tandler and Sanford A. Silverstein " at Cerro's plant. Horstman testified that Fallon opened the meeting by stating that the purpose was to find out why a prejob conference had not been held. Horstman acknowledged that during the discussion he asked whether the shaft furnace was going to be a building trades job . He stated that he made no claim for the refractory brick work on behalf of the Respondent Union , and that he made it very clear that he could not speak for the Bricklayers as they had their own attorney who would advise them "what they could or could not do." Horstman testified that it was "not uncommon for any industrial plant to assign some work that they feel they have reserved for their own company people, and some work that is going to belong to the building trades." Horstman's testimony in the 10(k) proceeding , however, presents this conference in a somewhat different light. Horstman's testimony in that proceeding indicates that Fallon opened the meeting by bringing up the issue of the refractory brick work. There is no mention in Horstman's prior testimony that the announced purpose of the conference was to determine why a prejob conference had not been held on the project. Both Tandler and Silverstein testified that Horstman was only concerned about the assignment of the refractory brickwork , and after they had asserted the basis for the assignment to the Company's employees , Horstman concluded the meeting by stating that he would advise the Respondent Union to take whatever legal means available to convince the Employer to change the assignment. Fallon recalled only a few of the details of the meeting, but did recall that the "trend of the conversation was that a discussion had been held by the building trades, and they felt that they wanted to present to Cerro Copper and Brass the situation that this was a building trades project, and they felt that all of the items of work should be performed by the building tradesmen." On October 26 or 27, Gillis informed his attorneys that the refractory brick work on the shaft furnace was being performed by inplant employees . On October 28,9 the Respondent's attorney sent a letter to the Employer stating, in substance , that the wages and conditions of the employees engaged in bricklaying work were below the area standard established by the Respondent and that the Rspondent intended to engage in picketing to so advise the public. The letter went on to state that the picketing was for informational purposes and was not intended as a claim for employment or for an assignment of any work. On November 8, the Respondent Union forwarded a second letter to the Employer . In this letter the Respondent announced that it wished to clarify its position concerning the proposed picketing by stating that it was making no claim to bricklaying or masonry work presently assigned to the Company's employees, represented by the Steelworkers . The letter stated , however, that in view of the disparity in wage rates, the Respondent was fully justified in engaging in informational picketing to inform s Silverstein is the Employer's works manager ' It is significant to note that this was the date that Horstman informed Gillis of the results of the prejob conference with the Employer Gillis ' testimony in the 10 (k) proceedings indicates that Horstman told him about the conference while they were attending the regular meeting of the Business Representatives' Council . It was also at this meeting that Gillis announced that the 298-668 0-69-61 947 the public of the substandard wages being paid by the Company for brick and masonry work. The Respondent's letter concluded by stating that upon satisfactory submission of proof that its wage standards were not endangered , the Respondent would refrain from picketing or if picketing had commenced , it would cease. On February 7, 1966, Respondent Union's attorney sent a letter to the attorney for the Company stating that the letters of October 28 and November 8, 1965, had reference to wages paid by Cerro to its employees engaged in new construction masonry work on an electric furnace installation. The Respondent's attorney advised that inasmuch as the new construction work had been completed, there was no basis for area standards picketing and the stated intention to engage in such picketing was withdrawn. The letter further stated that the Respondent Union did not and does not have any intention of engaging in area standards picketing with respect to wages paid by the Employer to employees engaged in patch or repair work performed as part of a continuing maintenance function. B. The Respondent Union's Contentions The Respondent contends that it has not violated Section 8(b)(4)(ii)(D) as it has made no claim for the refractory brick work and as it does not contend that the assignment of such work to employees represented by the Steelworkers is improper. The Respondent does claim, however, the right to advertise to the public the fact that the employees performing refractory brick work at Cerro are undermining its wage standards . Respondent's counsel admitted on the record that the Union has not notified the Regional Director , as required by the Board's Decision and Determination of Dispute , whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D), to assign the refractory brick work to its members. Respondent contends that it has not engaged in conduct violative of Section 8(b)(4)(D), and notification to the Regional Director is unnecessary. C. Concluding Findings The Board's award of the refractory brick work to the employees represented by the Steelworkers is not subject to review by a Trial Examiner. 10 However, it is necessary to make an independent evaluation of the evidence in order to determine whether the General Counsel has established by "a preponderance of the evidence" that the Respondent has engaged in conduct proscribed by Section 8(b)(4)(D). On the basis of the record before me, including the entire record established in the 10(k) proceeding, I conclude that the evidence preponderates in favor of a finding of a violation. It is evident from Gillis' conversations with Tandler and with Fallon that he was claiming that the refractory brick work should be performed by members of the Respondent Union . I place no reliance upon Gillis' statements that he was not Respondent would have to establish a picket line at the Employer's plant "' International Printing Pressmen & Assistants ' Union of North America, AFL-CIO (Kelley & Jamison, Inc), 150 NLRB 842, Local 1291 , International Longshoremen 's Association, (Pennsylvania Sugar Div , National Sugar Refining Co), 142 NLRB 257 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interested in the assignment of the work, but was only concerned over the fact that the brickwork would be performed by employees whose wages and conditions were substandard to those established by the Respondent Union. t t Examination of Gillis' testimony in the prior 10(k) proceeding reveals that he steadfastly maintained that the brickwork was a "building trades job" and that it should go to "other people" and not to the Company's employees. In addition, Fallon, whom I credit, testified that the telephone conversation of October 22, involved the assignment of the refractory brick work to inplant employees. I further find that the claim for the refractory brick work was renewed by Horstman on October 25, when he met with Fallon and the representatives of the Employer. Although Horstman maintained that the only purpose of the meeting was to find out why a prejob conference had not been held, the record indicates that the principal topic of discussion was the assignment of the brickwork, and that Horstman terminated the discussion by stating that the Respondent Union had an attorney who would advise them as to "what they could do or could not do." If the purpose of this meeting was to discover the reason for the absence of a prejob conference, then there would have been little need to discuss the basis of the Employer's assignment of the work, and even less need for Horstman's concluding statement concerning the Respondent Union's future course of action. Thus, it is evident that Horstman scheduled the meeting in order to advance the Respondent Union's claim for the refractory brick work. The letter of October 28, wherein the Respondent announced an intention to engage in area standards picketing, and the letter of November 8, wherein the Respondent sought to clarify the basis for the intended picketing, cannot be divorced from the prior statements of Gillis and Horstman. When viewed in this context, it is apparent that the threat to picket, ostensibly for the purpose of protesting the failure to abide by area standards, was also for the purpose of forcing the Employer to change the assignment of the brickwork from its own employees to a contractor who employed members of the Respondent Union. Such conduct is proscribed by Section 8(b)(4)(ii)(D). Local 25, International Brotherhood of Electrical Workers, AFL-CIO, 157 NLRB 44, footnote 8, and cases cited therein, New Orleans Typographical Union No. 17, 152 NLRB 587, enfd. 368 F.2d 755 (C.A. 5). The letter from the Respondent Union's attorney on February 7, 1966, withdrawing any intention to engage in area standards picketing because the brickwork on the shaft furnace had been completed, does not moot the issues in this case. While this letter states that the Respondent Union has no intention of engaging in area standards picketing when Cerro's employees engage in patch or repair work as a part of a maintenance function, it gives rise to the clear implication that when new construction brickwork is assigned to inplant employees in the future, similar conduct can reasonably be anticipated from the Respondent Union. Local Union 224 and Local Union 830, Pipefitters (Bernard Pipe Line Co.), 152 NLRB 902, 910. The position adopted by the Respondent concerning compliance with the Board's Decision and Determination of Dispute in this case is untenable. As noted above, the Respondent states that it has not informed the Regional " Moreover, the patent inconsistencies between Gillis' testimony in the prior 10(k) proceeding and in this hearing lead me Director in writing whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D), to assign the refractory brick work to its members for the reason that the Respondent, in its view, has not engaged in conduct which violates Section 8(b)(4)(D). The adamant refusal to supply the unequivocal statement of its intention as required by the Board affirmatively demonstrates a lack of good-faith intent on the part of the Respondent Union to accept and abide by the Board's Determination. Local 595, International Association of Bridge, Structural and Ornamental Iron Workers, AFL, 112 NLRB 812, 815. CONCLUSIONS OF LAW 1. Subordinate Union No. 30 of Illinois of the Bricklayers, Masons and Plasterers International Union of America, AFL-CIO, and United Steelworkers of America, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 2. By threatening, coercing, and restraining Cerro Copper and Brass Company, a Division of Cerro Corporation, with an object of forcing or requiring Cerro to assign to employees represented by the Respondent Union the refractory brick work on the electric shaft furnace rather than to Cerro's own employees represented by the Steelworkers, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(4)(ii)(D) of the Act. 3. The aforementioned unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent Union has engaged in certain unfair labor practices proscribed by Section 8(b)(4)(D) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusions of law, and upon the entire record in this case, it is recommended that Subordinate Union No. 30 of Illinois of the Bricklayers, Masons and Plasterers International Union of America, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from threatening, coercing, or restraining Cerro Copper and Brass Company, a Division of Cerro Corporation, where an object thereof is to require Cerro to assign the refractory brick work in Cerro's smelting and melting furnaces to employees represented by the Respondent Union rather than to Cerro's own employees represented by the Steelworkers, except insofar as any such action is permitted under Section 8(b)(4)(D) of the Act. 2. Take the following affirmative action which will effectuate the purposes of the Act: (a) Post at its business offices, meeting halls, and all other places where notices to members are customarily posted, copies of the attached notice marked to discredit his statements, except where corroborated by other credited testimony or evidence SUBORDINATE UNION NO. 30 "Appendix."12 Copies of said notice, to be furnished by the Regional Director for Region 14, after having been duly signed by an authorized representative of the Respondent Union, shall be posted by it immediately upon receipt thereof and maintained for a period of 60 consecutive days. Reasonable steps shall be taken to insure that the notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for Region 14, signed copies of the said notice for posting by Cerro Copper and Brass Company, a Division of Cerro Corporation, provided that Company is willing, at all places where notices to its members are customarily posted. (c) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Decision and Recommended Order what steps the Respondent Union has taken to comply herewith. 13 12 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 11 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL MEMBERS OF SUBORDINATE UNION No. 30 OF ILLINOIS OF THE BRICKLAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION OF AMERICA, 949 AFL-CIO, AND TO ALL EMPLOYEES OF CERRO COPPER AND BRASS COMPANY, A DIVISION OF CERRO CORPORATION Pursuant to the Recommended Order of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT threaten , coerce, or restrain Cerro Copper and Brass Company, a Division of Cerro Corporation , with an object of forcing or requiring it to assign the work of laying refractory brick in Cerro's smelting and melting furnaces to employees represented by us rather than to its own employees represented by United Steelworkers of America, AFL-CIO. SUBORDINATE UNION No. 30 OF ILLINOIS OF THE BRICKLAYERS , MASONS AND PLASTERERS INTERNATIONAL UNION OF AMERICA, AFL-CIO (Labor Organization) Dated By (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 1040 Boatmen's Bank Building, 314 North Broadway, St. Louis, Missouri 63102, Telephone 622-4154.