Carpenters, Local 753

568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Brotherhood of Carpenters & Joiners of America, Local No. 753, AFL-CIO and Blount Bros. Corporation . Case 23-CD-193 November 13, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On August 25, 1969, Trial Examiner Sydney S Asher 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 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 Decision, the exceptions and brief, 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 adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, United Brotherhood of Carpenters & Joiners of America, Local No. 753, AFL-CIO, its officers, agents, and representatives , shall take the action set forth in the Trial Examiner 's Recommended Order TRIAL EXAMINER'S DECISION SYDNEY S ASHER, Trial Examiner On December 17, 1968, Blount Bros Corporation, Houston, Texas, herein called Blount, filed charges against United Brotherhood of Carpenters & Joiners of America, Local No 753, AFL-CIO, Beaumont, Texas, herein called the Respondent' Amended charges were filed on December 18, 1968 These charges allege that the Respondent and other labor organizations violated Section 8(b)(4)(i)(ii)(D) The Respondent excepted to certain credibility findings made by the Trial Examiner It is the Board ' s established policy not to overrule a Trial Examiner' s resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect We find no such basis for disturbing the Trial Examiner's credibility findings in this case Standard Dry Wall Products , Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3) of the National Labor Relations Act, as amended (29 U S C , Sec 151, et seq ), herein called the Act, in connection with the assignment of certain work by General Masonry, Inc , herein called General Masonry, to employees represented by Laborers International Union of North America, Local No 870, AFL-CIO, herein called the Laborers, rather than to individuals represented by the Respondent Pursuant to Section 10(k) of the Act, the Board conducted a hearing in Beaumont, Texas, on January 21 and February 6, 1969, to determine the dispute On April 23, 1969, the Board issued its Decision and Determination of Dispute in the matter,' in which it found, without ruling on the credibility of the testimony taken before it, that there existed reasonable cause to believe that the Respondent' had violated Section 8 (b)(4)(D) of the Act and that no agreed-upon method of settlement of the dispute existed The specific work in dispute was described as the erecting and dismantling of steel tubular section scaffolds above the height of 14 feet at the Lamar State College of Technology construction project at Beaumont, Texas After noting that the Respondent conceded that on the merits the Board might award this work to employees of General Masonry represented by the Laborers rather than to individuals represented by the Respondent, the Board determined the jurisdictional controversy by making such award On June 17, 1969, the General Counsel issued a complaint alleging that on about December 12, 1968, the Respondent threatened, coerced, and restrained Blount by stating that if General Masonry's employees represented by the Laborers should perform the work described above, the Respondent would shut down the job It is alleged that the object of this conduct was to force or require General Masonry to assign the disputed work to individuals who are members of, or represented by, the Respondent, rather than to employees who are members of, or represented by, the Laborers It is further alleged that, since on or about June 9, 1969, the Respondent has failed and refused to comply with the Board's Decision and Determination of Dispute It is also alleged that such conduct violated Section 8(b)(4)(ii)(D) of the Act' The Respondent filed an answer denying that it threatened, coerced, or restrained Blount, admitting that it had not complied with the Board's Decision and Determination of Dispute, and alleging that the Board's Decision and Determination of Dispute is in direct conflict with a prior decision of the United States District Court for the Eastern District of Texas in a lawsuit which the Respondent brought against Blount for enforcement of a contract between Blount and the Respondent The answer further alleges that the Respondent's sole object is to enforce that contract through proper legal means, and that the Respondent has no concern with the manner in which General Masonry conducts its business, so long as Blount meets its contractual obligations Upon due notice a hearing was held before me on July 17, 1969, at Beaumont, Texas The General Counsel, Blount, General Masonry and the Respondent were The original charges in this case were filed on December 13, 1968 They named other labor organizations as respondents, but did not name the Respondent '175 NLRB No 81 On May 6, 1969, the Respondent requested that the Board reconsider its Decision and Determination of Dispute On May 28, 1969, the Board denied this request 'There was no mention of the other labor organizations which are named in the charges as respondents 'The complaint does not allege any violation of Sec 8 (b)(4)(i)(D) of the Act 179 NLRB No. 95 CARPENTERS, LOCAL 753 569 represented and participated fully in the hearing. No appearance was entered on behalf of the Laborers By stipulation of the parties, the decision, record and exhibits of the 10(k) hearing were made part of the record herein. At the close of the hearing the General Counsel filed a brief, and Blount and General Masonry filed a joint brief These have been duly considered Upon the entire record in this case, and from my observation of the witnesses, I make the following Findings of Fact The complaint alleges, the answer admits, the Board has found, and it is now found, that Blount and General Masonry are, and at all material times have been, employers engaged in commerce and in an industry affecting commerce as defined in the Act, and their operations meet the Board's jurisdictional standards,' and that the Respondent and the Laborers are, and at all material times have been, labor organizations as defined in the Act A. The Setting 6 Blount has a contract with the Board of Regents of Lamar State College of Technology to construct four buildings on the college campus at Beaumont, Texas Blount is a member of the Associated General Contractors of Jefferson County, herein called AGC, which has a collective-bargaining agreement with the Carpenters District Council of Sabine Area and Vicinity, including Local 753 Article V of the contract provides that the AGC contractors will bind their subcontractors to the Agreement designating the National Joint Board for the Settlement of Jurisdictional Disputes Article XX, B, provides that the AGC contractors shall require their subcontractors to abide by the work jurisdiction established by the National Joint Board One such decision, rendered by the National Joint Board in 1920, awarded the work of erecting self-supporting scaffolds over 14 feet in height to members of the Carpenters. Any erection or removal of scaffolding less than that height would be done by any employees assigned to the task by the employer In April 1968, Blount entered into a contract with General Masonry whereby General Masonry would perform all the masonry work on the Lamar State College job This contract makes no reference to any labor agreements, either of Blount or of General Masonry. Nor does it provide that General Masonry will refer jurisdictional disputes to the National Joint Board or be bound by its decisions General Masonry is a member of the Masonry Contractors Association which has a collective-bargaining 'Blount is, and at all material times has been, a Delaware corporation, with its principal office and place of business in Montgomery , Alabama, where it is engaged in the business of a general contractor in the building and construction industry During the 12 months immediately prior to June 17, 1969, it purchased materials valued at more than $50,000 which were shipped to its Beaumont , Texas, operations directly from sources outside the State of Texas General Masonry is, and at all material times has been, a Texas corporation with its principal office and place of business in Pasadena, Texas, where it is engaged in the business of masonry construction During the 12 months immediately prior to June 17, 1969, it purchased materials valued at more than $50,000 which were shipped to it directly from sources outside the State of Texas 'The findings in this section are taken from the Board 's findings in its Decision and Determination of Dispute agreement with the Laborers This agreement does not provide that the signatories submit jurisdictional disputes to the National Joint Board or abide by its decisions. Under this contract the work of erecting and dismantling all scaffolding is within the jurisdiction of the Laborers B The Events of December 1968 General Masonry began to perform masonry work on the college buildings, using some scaffolding However, as of December 12, 1968, General Masonry had not erected any scaffolding over 14 feet in height. On that date about 10 am Donald Talbert, the Respondent's business representative, and William H Carr, his assistant, visited the jobsite and there conferred with Curtis L. Reece, superintendent for Blount on the Lamar State College project, in Reece's field office What occurred during that conference is the principal factual issue herein From a synthesis of the testimony of all three persons present, these undisputed facts emerge. Talbert had with him a copy of the collective bargaining contract between AGC and the Union He handed it to Reece, calling Reece's attention to article XX, B Reece looked at it Talbert remarked that he wanted Reece to be aware that that provision was in the contract. Talbert inquired whether any scaffolds over 14 feet in height would be erected, and if so, whether any assignment of such work had been made Reece replied that he did not know, and that any such work assignment would be made by General Masonry, the subcontractor Talbert stated that such work belonged to the Respondent's members. Reece asked if the scaffolds were over 14 feet in height, did the Respondent claim only the right to construct that part which exceeded 14 feet. Talbert answered that, if a scaffold was intended to exceed 14 feet, the Respondent claimed for its members the right to build the entire scaffold from the ground up, but if a scaffold was not expected to exceed 14 feet, the Respondent made no claim to any part of the work of building it What next ensued is a matter of dispute According to Reece, Talbert stated "The Laborers are not going to build the scaffolds, because it is Carpenter's work if they do build the scaffolds, we will have to shut the job down," adding. "We will expect your cooperation in this matter," to which Reece responded that he would leave the decision up to General Masonry, as he had no authority over the assignment of their work. Talbert and Carr, however, flatly denied that either of them uttered any threat to Reece about closing down the job Based upon my observation of the witnesses while testifying, I do not credit the denials of Talbert and Carr Reece impressed me as a candid and reliable witness, and I credit his version as the more accurate.' According to all three participants, the conversation then turned to another subject, namely a union steward. Later, just as Taylor and Carr were about to leave, Reece tapped with his finger the contract which Talbert had 'The General Counsel introduced as a rebuttal witness Roy Loupe, Reece's assistant He testified , over the vigorous objection of counsel for the Respondent , that about 10 minutes after Talbert and Carr left, Reece stated they had threatened to close down the job Although Loupe neither participated in nor overheard the conversation between Reece and the Union's representatives, I held his testimony to be admissable as part of the res gestae On reflection , I have some doubts as to the correctness of that ruling Accordingly , in resolving the conflict between Reece's testimony on one hand and that of Talbert and Carr on the other, I have disregarded entirely the testimony of Loupe 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shown him, and said. "I am not going to get in trouble over this " About a week later, Talbert received a copy of the charges herein, which stated that "General Masonry, Inc has already lawfully assigned such work [to the Laborers] " Talbert telephoned to Reece and asked him whether the work previously referred to had been assigned to members of the Laborers. Reece responded that he did not know. Talbert stated that "if this were true. it left me no choice but to take action against Blount " Reece asked. "By action do you mean picketing?" Talbert replied that he would have to consult with legal counsel "and see what action was open to us." Following this conversation, the Respondent and other labor organizations signatory to the contract commenced a lawsuit against Blount to enforce the contract C The Respondent's Defenses The Respondent's attorney neither argued orally at the hearing nor filed a brief. Therefore we must refer to the answer for a guide to the Respondent's defenses. The first such defense is set forth in the answer as follows The respondent would show that its complaint regarding its contractual dispute with Blount Bros. Corporation was made the subject of a suit filed in the Federal Court in December of 1968, styled Carpenters District Council of the Sabine Area vs. Blount Bros Corporation, et al, Civil No 6177. The Respondent would further show that as a result of the filing of said suit, the subject matter in contention was placed in the hands of an arbitrator who heard evidence in regard to the contractual dispute, and then rendered a decision declaring the disputed contractual provisions valid and legal, and ordering Blount Bros. Corporation to comply with said provisions. Blount Bros compliance with its contract would result in the disputed work being assigned to the members of the respondent union. The respondent would further show that on April 14, 1969, Joe J Fisher, Judge for the Federal District Court, Eastern District of Texas, Beaumont Division, entered an order requiring Blount Bros Corporation to comply with its contractual provisions with the respondent. Therefore, respondent says that by virtue of said court order, it is under no legal requirement to comply with the Decision of the National Labor Relations Board rendered in this matter on April 23, 1969, and in fact, the previous order of the Federal Court had the effect of settling this dispute. The short answer to this defense is that it has already been considered and rejected by the Board. In its original Decision and Determination of Dispute, the Board stated. We find without merit Respondent's claim that since it was merely seeking to enforce Section XX of the AGC-Carpenters contract with Blount, its conduct was not for an objective proscribed by Section 8(b)(4)(D). The contractual aspect of Respondent's assertion was pursued by litigation for breach of contract The concurrent objective of the Carpenters was to force or require the assignment of the disputed work to carpenters represented by Respondent rather than to employees represented by the Laborers The fact that 'In December 1968, an action was commenced in the state court Carpenters District Council of the Sabine Area & Vicinity v Blount Bros Corporation , et al. in the 60th District Court of Jefferson County, Texas, No B-91691 See also Carpenters District Council of the Sabine Area & Vicinity v Blount Bros Corporation , et al . U S District Court for the Eastern District of Texas, Beaumont Division, Civil No 6177 one basis for Respondent's claim was its contract with Blount does not detract from the jurisdictional nature of the dispute Thereafter, on May 6, 1969, the Respondent's attorney forwarded to the Board a copy of Judge Fisher's decision, stating. This order, as we interpret it, is in conflict with the Board's decision in Case 23-CD-193 . . Judge Fisher entered his order prior to the finding and decision of the Board. We feel the court order should stand and ask for a reconsideration by the Board in this matter On May 28, 1969, the Board denied this request, stating, inter alia "any contractual action that Respondent pursued against Blount Bros for its failure to bind General Masonry would not affect this proceeding" So far as I am concerned, this is binding on me and disposes of the Respondent's defense based on its lawsuit The Respondent's final defense arises from evidence introduced for the first time at the unfair labor practice hearing. On the basis of this undisputed evidence, it is found that, early in June 1969 (following the Board's refusal of the Respondent's request for reconsideration but before the unfair labor practice hearing) the Respondent submitted the dispute to the National Joint Board. General Masonry was not a party to this submission, nor apparently was the Laborers On July 11, 1969, the National Joint Board wrote to the Respondent, the Laborers, Blount and General Masonry, as follows At its meeting July 9-10, 1969 the Joint Board considered the jurisdictional dispute between the United Brotherhood of Carpenters and Joiners and the Laborers International Union of North America over erection and dismantling of scaffolding over fourteen feet high, Lamar State College of Technology project, Beaumont, Texas, Blount Brothers Corporation contractor, General Masonry Inc subcoritractor. The Joint Board voted to make the following job decision: The work in dispute is governed by the decision of record of April 28, 1920 and shall be assigned to carpenters This action of the Joint Board was predicated upon particular facts and evidence before it regarding this dispute and shall be effective on this particular job only It is well settled that, in the absence of material newly discovered or previously unavailable, an award of disputed work by the Board in a Decision and Determination of Dispute is not open to review by a Trial Examiner in a proceeding on an 8(b)(4)(D) complaint.' On the other hand, it is clear that during the complaint proceeding the Respondent is entitled to introduce new or previously undiscovered evidence to rebut the Board's award of work.iO The Respondent herein argues that the evidence concerning submission of the dispute to, and determination of the dispute by, the National Joint Board is new evidence unavailable to it during the 10(k) proceedings, as those proceedings had concluded before the submission in question took place The General 'New York Printing Pressmen 's Union No 2. AFL-CIO (New York Times Company ). 154 NLRB 1122, 1124, and cases cited in fn 6 therein See also International Longshoremen 's and Warehousemen's Union, (Aluminum Company of America). 163 NLRB 1039, 1042, enfd as modified 413 F 2d 30 (C A 9), and Local 3 , International Brotherhood of Electrical Workers , AFL-CIO ( Western Electric Company ), 144 NLRB 1318, fn 1, enfd 339 F 2d 145 (C A 2) "International Longshoremen 's Association, Local 1576, AFL-CIO (Texas Contracting Company , et al ). 166 NLRB No 104 (TXD) enfd 409 iF 2d 709 (C A 5) CARPENTERS , LOCAL 753 571 Counsel, Blount and General Masonry take an opposing position. They urge that the Respondent was free to submit the dispute to the National Joint Board at any time after it arose in December 1968, that it nevertheless refrained from doing so until after the conclusion of the 10(k) proceeding, and that therefore the belated submission cannot properly be considered "new" or "unavailable" evidence In the view I take of this case, this matter need not be resolved It will be assumed, without deciding, that the evidence in question constitutes new evidence, unavailable to the Respondent during the 10(k) proceedings In considering this evidence, it should be noted that twice in the Decision and Determination of Dispute the Board stated that there was no evidence that the current dispute had been submitted to the National Joint Board. It should also be recalled that, in determining who is entitled to work in dispute, "the Board will consider all relevant factors," including "awards of . . . joint boards "" However, the probative value of the National Joint Board's award of July 11, 1969, is considerably lessened by the fact that, so far as the record shows, neither General Masonry, the employer who made the work assignment, nor the Laborers, against whom the National Joint Board's award ran, participated in the National Joint Board proceedings, and as the Board noted in its Decision and Determination of Dispute, these parties were not bound in advance to comply therewith The most compelling reason why the National Joint Board's award of July 11, 1969, carries little weight is the premise on which that award is based For the only reason advanced by the National Joint Board in support of its award is "The work in dispute is governed by the decision of record of April 28, 1920 " However, as the Board has pointed out, that 49-year-old award was rendered "some 16 years before the appearances of tubular metal scaffolding.12 Its present applicability to tubular metal scaffolding, such as the scaffolding here used by General Masonry, is therefore open to serious question. Upon the basis of the above findings of fact, and upon the entire record in this case, I make the following. CONCLUSIONS OF LAW I Blount Bros Corporation and General Masonry, Inc., are, and at all material times have been, employers within the meaning of Section 2(2) of the Act, engaged in commerce and in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2 United Brotherhood of Carpenters & Joiners of America, Local No. 753, AFL-CIO, and Laborers International Union of North America, Local No 870, AFL-CIO, are, and at all material times have been, labor organizations within the meaning of Section 2(5) of the Act 3. By threatening, coercing, and restraining Blount Bros. Corporation on or about December 12, 1968, with an object of forcing or requiring Blount Bros. Corporation and General Masonry, Inc., to assign the erecting and dismantling of steel tubular section scaffolds above the height of 14 feet at the Lamar State College of Technology construction project at Beaumont, Texas, to individuals represented by the Respondent rather than to employees represented by the Laborers International Union of North America, Local No 870, AFL-CIO, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(4)(ii)(D) of the Act. 4 The above-described unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce, and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in this case, I make the following RECOMMENDED ORDER D. Conclusion It is concluded that the National Joint Board's award of July 11, 1969, if entitled to consideration as newly discovered or previously unavailable evidence, is not sufficiently persuasive to overcome the Board's prior determination of this dispute In view of the finding, above, that on December 12, 1968, the Respondent's agents threatened to close down the job, and the Respondent's failure to comply with the Board's Decision and Determination of Dispute, it is concluded that the Respondent sought by illegal means to obtain the assignment of work to which it was not entitled, and by such conduct violated Section 8(b)(4)(n)(D) of the Act." "International Association of Machinists, Lodge No 1743, AFL-CIO (J A Jones Construction Companvl. 135 NLRB 1402, 1410-1I "Carpenters Union Local 1260, AFL-CIO (Seedorff Masonry, Inc ). 173 NLRB No 184 See also Jefferson County Alabama and Vicinity Carpenters District Council (S & W Masonry. Inc ), 173 NLRB No 190, and Newton, Massachusetts District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Porrazzo and Hurley Co, Inc ). 177 NLRB No 36 The first two cited cases were decided by the Board before its Decision and Determination of Dispute in the instant case, but the Newton case was decided after the Board's Decision and Determination of Dispute herein All three involved assignment of the erecting and dismantling of steel tubular section scaffolds above the height of 14 feet "This conclusion is not based on anything said by Talbert in his It is recommended that United Brotherhood of Carpenters & Joiners of America, Local No 753, AFL-CIO,its officers, agents, successors and assigns, shall: 1. Cease and desist from threatening, coercing, or restraining Blount Bros. Corporation, or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require Blount Bros. Corporation, General Masonry, Inc , or any other person engaged in commerce or in an industry affecting commerce, to assign the work of erecting and dismantling steel tubular section scaffolds above the height of 14 feet at the Lamar State College of Technology construction project at Beaumont, Texas, to individuals represented by the Respondent rather than to employees represented by Laborers International Union of North America, Local No 870, AFL-CIO 2 Take the following affirmative action, which it is found will effectuate the policies of the Act (a) Post at its business offices and meeting halls copies of the notice attached hereto marked "Appendix."" telephone conversation with Reece after receiving a copy of the charges herein "In the event that Recommended Order should be 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 If the Board's Order should be enforced by a United States Court of Appeals, 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Copies of the said notice, on forms provided by the Regional Director for Region 23, after being duly signed by an authorized representative of the Respondent, shall be posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily displayed. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced or covered by any other material (b) Sign and transmit copies of said notice to the said Regional Director for posting by Blount Bros Corporation and General Masonry, Inc., if these companies should be willing (c) Notify the said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith 11 the words "a Decision of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " "In the event that Recommended Order should be adopted by the Board, this provision shall be modified to read "Notify the said Regional Director , in writing , within 10 days from the date of this Order, what steps it has taken to comply herewith " 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 Blount Bros Corporation, or any other person engaged in commerce or in an industry affecting commerce, where an object is to force or require Blount Bros Corporation, General Masonry, Inc , or any other person engaged in commerce or in an industry affecting commerce, to assign the work of erecting and dismantling of steel tubular section scaffolds above the height of 14 feet at the Lamar State College of Technology construction project at Beaumont, Texas, to individuals represented by this union rather than to employees represented by Laborers International Union of North America, Local No 870, AFL-CIO. Dated By APPENDIX NOTICE TO ALL MEMBERS OF UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, LOCAL No. 753, AFL-CIO Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, LOCAL No 753, AFL-CIO (Labor Organization) (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, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 713-226-4296