Carpenters District Council of Kansas City

CARPENTERS DISTRICT COUNCIL OF KANSAS CITY Carpenters District Council of Kansas City And Vicinity, AFL-CIO and Builders' Association of Kansas City. Case 17-CC-242 August 15, 1969 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA On May 25, 1966, the National Labor Relations Board issued its Decision and Order in the above-entitled proceeding,' finding that Respondent Union violated Section 8(b)(4)(i ) and (ii)(B) of the Act. Thereafter, the Board filed a petition for enforcement of the Order with the United States Court of Appeals for the Eighth Circuit' The Court found that where the primary object of the strike is the preservation of traditional union work subcontracted away by the employer , such pressure is not proscribed under Section 8(b)(4)(B). It therefore vacated the Board ' s Order and remanded the case to the Board to take evidence as to contract rights and area practice relating to the work assignment. On April 14, 1969, Trial Examiner Herbert Silberman issued his Supplemental Decision, attached hereto, finding that carpenters had no right based on contract or area practice to be included in the crews doing precast concrete installation work on a subcontract basis. Thereafter , Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. 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 Supplemental Decision , the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. '158 NLRB 1101 'N L R B v. Carpenters District Council of Kansas City and Vicinity. AFL-CIO, 398 F 2d 1 l (C A 8). 'On the entire record, we conclude that the evidence is insufficient to support the Union' s claim that carpenters customarily participated in the installation of either precast wall panels or other precast concrete fabrications in the Kansas City area . Accordingly, we reaffirm our previous Decision finding that the Union was engaged in activity constituting a secondary boycott in violation of Sec 8(b)(4)(i) and (ii)(B) of the Act. ORDER 119 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that Respondent, Carpenters District Council of Kansas City and Vicinity, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Board's Order of May 25, 1966. TRIAL EXAMINER'S SUPPLEMENTAL DECISION HERBERT SILBERMAN, Trial Examiner: Heretofore the Board issued a Decision and Order in this proceeding which is reported at 158 NLRB 1101. Thereafter, the United States Court of Appeals for the Eighth Circuit entered an opinion' setting aside the Board's Order and remanding the case to the Board for further proceedings. In accordance therewith, on November 25, 1968, the Board issued an order reopening the record and remanding proceeding to Regional Director for further hearing. The order directs the further hearing to be held before a Trial Examiner "on the contract rights existing and the area practice relating to the work assignment" and further directs the Trial Examiner to prepare and to serve upon the parties a Supplemental Decision containing findings of fact upon the evidence received, conclusions of law, and recommendations. Pursuant thereto, a further hearing in this proceeding was held on January 28 and 29, 1969, in Kansas City, Missouri. All parties were represented thereat by counsel. The parties waived the right to present oral argument at the close of the hearing. Although permission to file briefs was given the parties, no briefs were filed. Upon the entire record made at the supplemental hearing, and from my observation of the witnesses, and upon the proceedings heretofore had in this case, I make the following: Findings of Fact The issue presented upon this remand is whether the Respondent has a supportable claim or "right based upon contract or area practice"2 that a carpenter should be included as a member of building construction crews engaged in the installation of precast concrete wall panels or other precast concrete fabrications in the Kansas City area. The only relevent collective-bargaining agreement is between the Builders' Association of Kansas City and the United Brotherhood of Carpenters and Joiners of America, District Council of Kansas City and Vicinity, AFL-CIO. This agreement contains no clause which recognizes any right or claim on the part of the Carpenters for the work here in issue. Counsel for the Respondent stated at the hearing, "We are not claiming this work under any specific provision of the agreement with the Builders' Association." 'N.L R B v Carpenters District Council of Kansas City and Vicinity, AFL-CIO, 398 F.2d 11. 'N L.R.B. v. Carpenters District Council of Kansas City and Vicinity, AFL-CIO, supra at 14 178 NLRB No. 17 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent and General Counsel adduced oral testimony and introduced substantial documentary evidence in support of their respective conflicting positions regarding the area practice. My findings stated below are based upon a review of all the documents received in evidence and upon consideration of the oral testimony given at the hearing, particularly the testimony of William W Hutton, who has been managing director of the Builders' Association of Kansas City for about 23 years and who impressed me as having given a fair and unbiased description of the developments in the Kansas City area regarding the assignment of the work which is the subject of this inquiry.' The use of precast concrete for the construction of buildings in the Kansas City area began about 1950. At the outset such fabrications could not be purchased, therefore, they were made on the jobsites by the general contractors. These fabrications, which are heavy, usually were tilted into position. As a result, the term "tilt-up" is applied to describe precast concrete that is formed at the jobsites.' During this early period the general contractors used their regular crews to fabricate and to install the tilt-ups. Most such work was then done by carpenters although laborers were used to pour the concrete. According to Hutton, after several jurisdictional disputes arose the Builders' Association "called all the crafts together and . made an assignment that had some agreement from the unions' [because of their] acquiesence .... That assignment has remained . . . ever since." The assignment of tilt-up work was as follows: The work of hooking on to, installing in place and unhooking from these reinforced steel and concrete slabs used for walls was assigned to members of the iron workers union. The work of aligning, leveling and placing of these reinforced steel and concrete walls was assigned to members of the carpenters union. The work of pouring and handling of panels in the casting area as well as the customary servicing of mechanics was assigned to laborers.' About 1957 a number of firms began manufacturing precast products at their shops or yards and selling them to builders in the Kansas City area. It became the practice of such firms to subcontract the installation of the precast concrete fabrications to heavy-haul contractors or stone contractors, who employed primarily ironworkers and to a lesser extent teamsters and engineers to handle their normal work. When these subcontractors began to do precast concrete installations they continued to use the same crews, which did not normally include any 'As none of the parties submitted briefs I cannot know what specific contentions they might make with respect to the documents received in evidence or the oral testimony given at the hearing I perceive no value, and I believe it would unduly burden this Decision , were I to set forth and discuss the many possible arguments that could be advanced in support of their respective positions I have no way of knowing, in the absence of briefs, which, if any, of these arguments would be made I find no significant conflict in the testimony given by the various witnesses at the reconvened hearing and none of the documents introduced in evidence, subject to the explanations given at the hearing, conflict in any substantial way with the findings of fact set forth in this Supplemental Decision 'James Owen Mack, now retired, but formerly a president of Respondent and a general executive board member of the Brotherhood of Carpenters and Joiners of America, testified that tilt-ups "are formed on the floor with wood around them and they are hooked on and raised up by cables and a crane. Then they have braces on the side where they are lined up afterwards with the wall " 'Other crafts, such as bricklayers and roofers, from time to time, made claims to precast concrete installation work. carpenters Most of these installation jobs took only 3 to 4 hours to complete. However, carpenters were used on a few, larger jobs such as where the precast concrete installations might be done over a period of 1 or 2 months.` Hutton further testified, without contradiction, that in regard to the assignment of work "a real clean line of demarcation [exists] between tilt-up work, on the one hand, and other types of precast work, on the other " With exceptions created by reason of occasional pressure by one union or another, the practice regarding the installation of precast concrete fabrications in the Kansas City area has been for the firms doing the installations to use the same crafts as compose their normal work crews. Thus, carpenters are used in the installation of tilt-ups because these fabrications are made and installed on the jobsites by the general contractors who normally employ carpenters. Other precast concrete fabrications are usually installed by heavy-haul or stone (masonry) subcontractors who customarily do not employ carpenters and, therefore, have not been using carpenters in their crews to do precast concrete installations. The work which is the subject of the dispute in this case involve the installation of precast concrete fabrications by masonry subcontractors and do not involve any tilt-ups. Contrary to Respondent, I find that there has been no established practice in the Kansas City area that a carpenter will be included in the crews of such subcontractors when they make precast concrete installations. The practice has been to the contrary, namely, for the most part, carpenters have not been included in crews which have done precast concrete installation work on a subcontract basis. Contrary to Respondent, I find that the evidence adduced at the hearing herein does not establish any "right based upon contract or area practice" that a carpenter should be, or should have been, included in the crews employed by the masonry subcontractors to work `Respondent introduced in evidence a letter from William W Hutton to R J Mitchell , Chairman National Joint Board for Settlement of Jurisdictional Disputes , dated August 29, 1961, in which Hutton discusses the history of precast concrete work in the Kansas City area and, among other things, states In the years 1957 and 1958, two or three firms started manufacturing precast products in Kansas City, and it became their practice to sub out the installation of same to heavy haul firms in this area As the Board knows, heavy haul companies are basically employers of teamsters and iron workers, and to a large extent these heavy haul companies then began to use iron workers in the installation of this precast material The big majority of precast beam jobs are those jobs of three or four hours duration and were started and over before carpenters could make a claim Thus, the trend away from split crews [the reference here is to split crews used for tilt-up work] has developed the last two or three years to the present practice The present practice and that of the last two or three years has been that all tilt-up work has, almost without exception, been done with split crews of carpenters and iron workers. Precast channel work has tended more toward iron workers , and the last two years iron workers have in fact done the big majority of same However, on larger jobs, carpenters have made an issue and gotten in on part of the work On precast column and beams which are primarily erected by four heavy haul companies , iron workers have been doing large majority of the work. Of the four heavy haul companies who are erecting precast columns and beams, three of them today are using iron workers exclusively One of them is using carpenters in the crew on larger jobs Carpenters have been very upset over this trend of the last two or three years and admitting they cannot keep up with the setting of the occasional precast beam on small jobs, have been partially ignoring the same but are constantly advising the Association that they expect to get their half of the larger jobs CARPENTERS DISTRICT COUNCIL OF KANSAS CITY 121 on any of the three jobs which are the subject of the complaint in this case. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following- Supplemental Conclusions of Law Carpenters District Council of Kansas City and Vicinity, AFL-CIO, has no right based upon contract or area practice to insist upon or to take action to compel Ralph H . McClain or Weldon B. Royse Masonry and Waterproofing Co., Inc., or any other person or firm which is engaged in the installation of precast concrete fabrications in the Kansas City area on a subcontracting basis, to employ at least one carpenter in each installation crew, or to exert pressure by work stoppages or other means upon Winn-Senter Construction Company, D. F. Cahill Construction Company, or Sharp Brothers Contracting Company, or any other general contractor in the Kansas City area, to force any subcontractor to employ at least one carpenter in each crew used for the installation of precast concrete fabrications. RECOMMENDED ORDER Upon the foregoing findings of fact and supplemental conclusions of law and upon all the proceedings heretofore had herein, I recommend that the Order heretofore issued by the Board in this case shall be reissued.