Bricklayers, Local No. 1

BRICKLAYERS , LOCAL NO 1 123 Bricklayers, Stone Masons, Marble Masons, Tile Set- ters and Terrazzo Workers Local Union No. 1 of Tennessee and Bricklayers, Masons and Plasterers International Union of America and Shelby Marble & Tile Co. Case 26-CD-77 January 27, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge and amended charge filed on June 12, 1970, and July 9, 1970, respectively, by Shelby Marble Tile Co., herein called the Employer, and duly served on Bricklayers, Stone Masons, Marble Masons, Tile Setters and Terrazzo Workers Local Union No. 1 of Tennessee, herein called Local 1, and Bricklayers, Ma- sons and Plasterers International Union of America, herein called International, both referred to as Re- spondents, the Acting General Counsel of the National Labor Relations Board, by the Acting Regional Direc- tor for Region 26, issued a complaint on July 8, 1971, alleging that Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(ii)(D) and Sec- tion 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and no- tice of hearing before a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that the Respondents vi- olated the Act by failing and refusing to comply with the terms of the Board's Decision and Determination of Dispute in a Section 10(k) proceeding' and by threat- ening to strike the Employer with the object of forcing and requiring the Employer to assign the work of lay- ing acid proof paver floors in the construction of the Joseph Schlitz Brewing Company in Memphis to brick- layers represented by Respondent Local 1, rather than tilesetters represented by Local 1. In its answers dated August 2, 1971, the Respond- ents admit in part, and deny in part, the allegations in the complaint and present two affirmative defenses. On August 12, 1971, counsel for the Acting General Counsel filed directly with the Board a Motion for Summary Judgment submitting that certain portions of the Respondents' defenses are without merit and, in effect, that the Respondents, in their answers, raise no issues which were not previously considered and de- cided by the Board in the Section 10(k) proceeding. Subsequently, on August 17, 1971, the Board issued an Order Transferring the Proceeding to the Board and a Notice To Show Cause why the Acting General Coun- sel's Motion for Summary Judgment should not be granted. Respondents thereafter filed a response to the Notice To Show Cause, called Opposition to General Counsel's Motion for Summary Judgment and, in the alternative, Cross Motion for Summary Judgment, renewing their contentions made in the prior Section 10(k) phase of this proceeding and urging special cir- cumstances which allegedly necessitate relitigation in this proceeding of Section 10(k) issues. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this proceeding to a three-member panel. Upon the entire record in this proceeding, including the record in the 10(k) proceeding and the Board's Decision and Determination of Dispute therein, the Board makes the following: RULING ON THE MOTION FOR SUMMARY JUDGMENT Pursuant to Section 10(k) of the Act, following a charge and amended charge filed by the Employer al- leging that the Respondents had violated Section 8(b)(4)(ii)(D) of the Act, a hearing was held on August 25, 26, and 27, 1970. On January 27, 1971, the Board issued a Decision and Determination of Dispute finding there was reasonable cause to believe that Section 8(b)(4)(ii)(D) of the Act had been violated by the Re- spondents, that the Employer had not agreed to volun- tary dispute settlement machinery in connection with the work assignment dispute as contended by the Re- spondents, that the Employer was not bound by the award initially made by the International vice president and, subsequently, on appeal, affirmed by the Interna- tional executive board awarding the work in dispute to individuals who were bricklayer members of Local 1. Concluding therefore that it was not precluded from making a determination of the merits of the dispute within the meaning of Sections 8(b)(4)(ii)(D) and 10(k) of the Act, the Board decided that the tilesetter em- ployees of the Employer who were represented for col- lective-bargaining purposes by Local 1 were entitled to the work rather than the bricklayers also represented by Local 1.1 Thereafter, on February 17, 1971, the Respondents filed a motion for leave to supplement the record and a petition for rehearing. The Respondents again argued therein that all parties had agreed to submit the dispute to the International executive board and requested that the Board receive into the record an exhibit never of- , Bricklayers, Stone Masons, Marble Masons, Tile Setters and Terrazzo Workers Local Union No. I of Tennessee (Shelby Marble & Tile Co.), 188 NLRB No 15, issued January 27, 1971 195 NLRB No. 2 ' Ibid. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fered in evidence due to the Respondents' inadvertent error and that the Board receive into evidence a supple- mental exhibit. On June 16, 1971, the Board (Chairman Miller dissenting) issued its Supplemental Decision and Order permitting the inadvertently omitted exhibit to be made a part of the record, rejecting the supplemental exhibit as not being newly discovered or previously unavailable evidence, and denying the petition for re- hearing as lacking in merit.' Thereafter, on July 8, 1971, the Acting Regional Director issued the com- plaint herein. In their answers to the complaint and response to the Notice To Show Cause, the Respondents again assert (1) that the Board was legally precluded from deter- mining the work dispute because the Employer had agreed on a method of settlement by the International executive board and the Employer was bound by the decision of that board resolving the work dispute and (2) that, in any event, "the question as to whether there was an oral agreement here might well turn on credibil- ity determinations" requiring an Administrative Proce- dure Act hearing which the Board has not granted. The Respondents also contend that the exhibit which the Board permitted to be introduced into the record and the supplemental exhibit which the Board refused to accept into evidence constitute special circumstances justifying the relitigation in a hearing of the issues which were or could have been litigated in the prior 10(k) proceeding. Finally, the Respondents argue that the undisputed facts require the entry of a judgment for the Respondents. The issues raised by the Respondents have previ- ously been litigated and there is no issue which is prop- erly triable in this proceeding. Further, the facts alleged by the Respondents as constituting "special circum- stances" were before the Board and have been consid- ered by it in its Supplemental Decision and Order. As all material issues have been decided previously by the Board, or admitted by Respondents' answers to the complaint,' there are no matters requiring a hearing. ' Bricklayers, Stone Masons, Marble Masons, Tile Setters and Terrazzo Workers Local Union No I of Tennessee (Shelby Marble & Tile Co.). 191 NLRB No 47. In their answers to the complaint, the Respondents admit that they threatened on or about June 11, 1970, to strike the Employer and that, since on or about June 23, 1971, they have failed and refused to comply with the Board's Decision and Determination of Dispute While generally denying that the object of the aforesaid admitted conduct was to force and require the Employer to assign the disputed work to the bricklayers rather than to the tilesetters, the Respondents concede in their first affirmative defense that the object of this conduct was to compel the Employer's compliance with the award of the International executive board to the bricklayers Since the Board had considered and adjudicated adversely to the Respondents the validity of the machinery for settlement of the dispute by the International executive board, we find that the object of the aforesaid conduct was in- tended to force and require the Employer to assign the disputed work the the bricklayers rather than to the tilesetters contrary to the Board's award and therefore was an object proscribed by Section 8(b)(4)(n)(D) of the Act Accordingly, the Acting General Counsel's Motion for Summary Judgment is granted. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER The Employer is now, and has been at all times material herein, a corporation with a place of business at Memphis, Tennessee, where it is engaged in the sale and installation of tile and related products. During the past 12 months, the Employer, in the course and conduct of its business operations , received at its Memphis location goods and materials valued in excess of $50,000 directly from points outside the State of Tennessee. We find, on the basis of the foregoing, that the Em- ployer is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectu- ate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED Bricklayers, Stone Masons, Marble Masons, Tile Set- ters and Terrazzo Workers Local Union No. 1 of Tennessee and Bricklayers, Masons and Plasters Inter- national Union of America are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and Facts of the Dispute Since on or about March 3, 1970, and at all times material herein, the Employer had a contract with Ar- thur G. McKee & Company, a general contractor, to install acid proof paver floors in the construction of a plant for the Joseph Schlitz Brewing Company in Memphis, Tennessee. On or about April 16, 1970, the work of laying said acid proof paver floors was assigned by the Employer to its tilesetter employees who are represented by Local 1. At that time, following the commencement of the work, the Respondents claimed that the work of installing acid proof paver floors should be assigned to bricklayers who are also repre- sented by Local 1. The Employer rejected this claim. On or about June 11, 1970, the Respondents threatened to strike the Employer. BRICKLAYERS , LOCAL NO. 1 B. The Determination of the Dispute On January 27, 1971, the Board issued its Decision and Determination of Dispute assigning the work of laying all acid proof paver in the construction of the Joseph Schlitz Brewing Company brewery at Mem- phis, Tennessee, to its employee tilesetters represented by Local 1. The Board also found that the Respond- ents, Local 1 and International, were not entitled by means proscribed by Section 8(b)(4)(ii)(D) of the Act to force or require the Employer to award the disputed work to bricklayers represented by Local 1. Thereafter, on June 16, 1971, the Board (Chairman Miller dissent- ing) issued its Supplemental Decision and Order deny- ing the Respondents' motion for leave to supplement the record and petition for rehearing. C. Respondents' Refusal To Comply In addition to their threat of June 11, 1970, to strike the Employer, since June 23, 1971, the Respondents have refused, and continue to refuse, to comply with the Board's Decision and Determination of Dispute pursuant to Section 10(k) of the Act that they are not entitled to force or require the Employer to award the disputed work to the bricklayers represented by Local 1. On the basis of the foregoing, and the entire record in this proceeding, we find, as described above, that the Respondents' threat to strike and refusal to comply with the Board's Decision and Determination of Dis- pute violated Section 8(b)(4)(ii)(D) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with their operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that Respondents have engaged in and are engaging in unfair labor practices within the mean- ing of Section 8(b)(4)(ii)(D) of the Act, we shall order that they cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 125 1. Shelby Marble & Tile Co. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Bricklayers, Stone Masons, Marble Masons, Tile Setters and Terrazzo Workers Local Union No. 1 of Tennessee and Bricklayers, Masons and Plasterers In- ternational Union of America are labor organizations within the meaning of Section 2(5) of the Act. 3. The Respondent has violated and is violating Sec- tion 8(b)(4)(ii)(D) of the Act by attempting to force or require the Employer to assign the work of laying acid proof paver in the construction of the Joseph Schlitz Brewing Company brewery at Memphis, Tennessee, to bricklayers represented by Local 1 by means proscribed by Section 8(b)(4)(ii)(D) 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondents, Bricklayers, Stone Masons, Marble Masons, Tile Setters and Ter- razzo Workers Local Union No. 1 of Tennessee and Bricklayers, Masons and Plasterers International Un- ion of America, their officers, agents, and representa- tives, shall: 1. Cease and desist from refusing to comply with the Board's Decision and Determination of Dispute or threatening to strike, or threatening, coercing, or re- straining, Shelby Marble & Tile Co., or any other per- sons engaged in commerce or an industry affecting commerce, where an object is to force or require Shelby Marble & Tile Co. to assign the work of laying acid proof paver in the construction of the Joseph Schlitz Brewing Company brewery at Memphis, Tennessee, to bricklayers represented by Local 1 rather than to tile- setter employees represented by Local 1. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at their business offices and meeting halls copies of the attached notice marked "Appendix."5 Co- pies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Re- spondents' representative, shall be posted by Respond- ents immediately upon receipt thereof, and be main- tained by them for 60 consecutive days thereafter, in ' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD " 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondents to insure that said no- tices are not altered, defaced, or covered by any other material. (b) Furnish the Regional Director for Region 26 signed copies of such notices for posting by the Em- ployer, if willing, in places where notices to employees are customarily posted. (c) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to comply with the Board's Decision and Determination of Dispute awarding the laying of acid proof paver to tileset- ters or threaten to strike, or threaten, coerce, or restrain, Shelby Marble & Tile Co., or any other persons engaged in commerce or an industry affecting commerce, where an object is to force or require Shelby Marble & Tile Co. to assign the work of laying acid proof paver in the construction of the Joseph Schlitz Brewing Company brewery at Memphis, Tennessee, to bricklayers represented by Local 1 rather than to tilesetter employees also represented by Local 1. BRICKLAYERS, STONE MASONS, MARBLE MASONS, TILE SETTERS AND TERRAZZO WORKERS LOCAL UNION No. 1 OF TENNESSEE, AND BRICKLAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION OF AMERICA (Labor Organizations) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Federal Building, Room 746, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901- 534-3161.