Local 433, United Carpenters

LOCAL 433, UNITED CARPENTERS 293 United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No. 433 and Lippert Brick Contracting, Inc. and Bricklayers, Masons, and Plasterers International Union of America, AFL-CIO, Mason Subordinate Union No. 2 of Belleville, Illinois. Case 14-CD-428 March 8, 1973 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed on May 25, 1972, by Lippert Brick Contracting, Inc., herein called Lippert, alleging that United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No. 433, herein called the Carpenters, had violated Section 8(b)(4)(D) of the Act by engaging in a strike with an object of forcing or requiring the assignment of certain work to employees represented by the Carpenters, rather than to employees represented by Bricklayers, Masons, and Plasterers International Union of America, AFL-CIO, Mason Subordinate Union No. 2 of Belleville, Illinois, herein called the Bricklayers. A hearing was held before Hearing Officer Philip Dexter on October 12, 1972. Lippert, Bauer Brothers Construction Co., Inc., herein called Bauer, who subcontracted the disputed work herein to Lippert, the Carpenters, and the Bricklayers appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, briefs were filed by Lippert and the Carpenters. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this proceeding,' the Board makes the following findings: I. THE BUSINESS OF THE COMPANIES Lippert, a brick and masonry contractor, is a Delaware corporation and maintains an office and A prior hearing involving the same parties was held in Case 14-CC-771, before Administrative Law Judge Thomas S Wilson, who issued a Decision on September 28, 1972 The parties stipulated that the transcript and exhibits in that case be incorporated and made a part of the record which was developed in this proceeding. 2 The blocks or tile are made with holes or cavities running the length of the block or tile to reduce the overall weight of concrete floor slabs place of business in Belleville, Illinois. During the year 1971, Lippert purchased and received supplies, machinery, and building materials valued in excess of $50,000 which were shipped to it from points outside the State of Illinois. Bauer, a general contractor in the construction business, is an Illinois corporation and maintains an office and place of business in Belleville, Illinois. During the year 1971, Bauer purchased and received supplies and building materials valued in excess of $50,000 which were shipped to it from points outside the State of Illinois. We find that Lippert and Bauer are each engaged in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATIONS We find that the Carpenters and the Bricklayers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts In February 1972, Bauer began work as the general contractor on a project to add five additional floors to the St. Elizabeth Hospital in Belleville, Illinois; and, in March, subcontracted to Lippert all the masonry work, including the laying of filler tile which is used in the construction of concrete floors. The specifications for the job provided that the filler tile be made of either lightweight concrete blocks, herein referred to as haydite blocks, or clay tile, herein referred to as red tile, and Lippert decided upon haydite blocks.2 It assigned the laying of these blocks to its employees who are members of the Bricklayers, thereby giving rise to the dispute herein.3 In April 1972, Al Kraft, business representative of the Carpenters, which has a collective-bargaining contract with Bauer, asked Norbert Wolf, Bauer's superintendent, if Lippert intended to hire carpenters to do the disputed work. Wolf replied that Bauer had no control over who was going to do the work because it had been subcontracted to Lippert and suggested that Kraft see Lippert to find out if Lippert intended to hire carpenters. Subsequently, Kraft complained to Carl Weiss, Bauer's project manager, 3 The parties are in dispute herein concerning the laying of the haydite blocks on top of temporary plywood decks , upon which, after the insertion of steel reinforcing rods and electrical conduit between the rows of haydite blocks, concrete is poured After the concrete hardens, the deck is removed to create a floor/ceiling unit. Only the laying of the haydite blocks is in dispute between the Carpenters and the Bricklayers 202 NLRB No. 46 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the disputed work was carpenters' work and should not have been subcontracted because the filler tile method of floor construction was a substitute for the wooden or metal pans used in construction and which are traditionally installed by carpenters.4 To resolve this problem, a meeting was held on May 12, 1972, at the office of Wayne Barber, executive secretary of Southern Illinois Builders Association, of which Bauer is a member for bargaining purposes with the Carpenters. Represent- atives of Bauer, Lippert, the Carpenters, and the Bricklayers, who represent Lippert's employees, attended this meeting, but no solution was reached as the Carpenters and the Bricklayers each insisted that its members were entitled, to do the work. Ray Lippert, president of Lippert, who attended this meeting, testified at the hearing in the instant proceeding that Kraft said to him: "You would do me a big favor if you would give this work to the Carpenters." 5 When Lippert declared that he intend- ed to use bricklayers for the work, Carpenter Representative Meile responded, "We'll see about that." On May 24, 1972, after the temporary plywood deck for the initial floor of the addition to the hospital had been completed by carpenters employed by an unnamed subcontractor of Bauer, Lippert's bricklayers began to lay the haydite blocks.6 Bauer's carpenters had partially laid out the deck for the positioning of the blocks, by nailing metal bands to the deck to indicate where the blocks are to be placed by the bricklayers, after which the carpenters tighten and clamp the bands around the rows of blocks to hold them in place during the concrete pour. While the bricklayers and carpenters were working on the deck, Elmer Hassenbrock, the Carpenters job stew- ard, told Wolf, Bauer's superintendent, that the carpenters would not work on the same deck with the bricklayers because the bricklayers were doing work that belonged to the carpenters. Wolf immediately informed Ken Lippert, who was supervising the laying of the blocks, that there was trouble and that he should talk to Hassenbrock. When Lippert inquired as to the trouble, Hassenbrock answered that Kraft, the Carpenters business representative, had told him that the carpenters were not allowed to work with the bricklayers because the laying of haydite blocks was carpenters' work. Upon receiving 4 The pan method of floor construction involves the use of a wooden or metal form that is set on a plywood deck to create a void or open space in the concrete floor After the concrete is poured and hardened, the pans are removed The haydite block or red clay construction also creates a similar void, but the material remains as part of the floor and is visible as part of the ceiling below the floor. 5 The Administrative Law Judge in Case l4 -CC-771 made certain findings in this connection with respect to the May 12 meeting, but this record contains the additional testimony of Ray Lippert which , even if assurances from Hassenbrock that the carpenters were refusing to do any of the layout or banding work, Ken Lippert said, "well, that is fine . . . we will do it all." Soon thereafter, Wolf asked Hassen- brock if the carpenters would work on other areas of the project and the latter agreed they would. At noon, however, Hassenbrock went to Bauer's project office and told Wolf that the carpenters would not work on the deck with the bricklayers. Ken Lippert came into the office and was told by Wolf that the carpenters were going to walk off the job. Lippert asked Hassenbrock what was going on and Hassen- brock replied that he "felt that this haydite block was his work and the other carpenters kind of said they agreed with that and that they were going to go off the job until we gave it to them." The requested assignment was not made and nine of Bauer's carpenters walked off the job. During the strike, Lippert's bricklayers continued on the job and also performed the layout and banding work until June 1, 1972, when the carpenters returned to work. Lippert had filed unfair labor practice charges on May 25, 1972, the day following the work stoppage, alleging that the Carpenters had violated Section 8(b)(4)(B) and (D) of the Act. B. The Work in Dispute As indicated above, the disputed work involved is the laying of haydite blocks on plywood decks used in the construction of floors at the St. Elizabeth Hospital in Belleville, Illinois. C. Contentions of the Parties The Carpenters moved to quash the notice of hearing on the ground that the record contains no evidence of any conduct on its part disclosing an objective proscribed by Section 8(b)(4)(D) of the Act. Lippert contends that there is ample evidence that the Carpenters unlawfully attempted to force it to reassign the disputed work to employees who are members of the Carpenters. Lippert and the Brick- layers contend that bricklayers are entitled to the disputed work as they have traditionally performed similar work and are parties to a bargaining contract covering this work. disputed, is available for consideration in determining whether there is probable cause to believe that the Carpenters violated Section 8(b)(4)(D) of the Act 6 The blocks are delivered to Lippert at the jobsite in large bundles and Lippert employs a crane operator to move them onto the deck and hod carriers to make smaller bundles and move the blocks to the bricklayers Bricklayers also operate a special electrical masonry saw to cut some of the blocks, when required LOCAL 433, UNITED CARPENTERS 295 D. Applicability of the Statute Before the Board may proceed with the determina- tion of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. We so find, and accordingly deny the Carpenters motions to quash, for the reasons given below. The Carpenters contends that its entire course of conduct herein, including the strike, was merely to protest Bauer's violation of their collective-bargain- ing contract which covers a unit of all carpenters employed by Bauer.7 It claims that the disputed work involved was unit work that the Carpenters was seeking to preserve for its members and that Bauer breached the contract by subcontracting such work to Lippert. It also asserts that it made no demand of Lippert to reassign the disputed work to members of the Carpenters. Initially, we note that even if we assume arguendo that the laying of haydite blocks is unit work covered by the Carpenters contract, article VIII, section 4 of the contract sanctions Bauer's retention of Lippert for the performance of such work. Indeed, other work on the project such as the construction of plywood decks has been subcontracted by Bauer without protest by the Carpenters when carpenters were employed for the performance of such work by the subcontractors. Significantly, when Bauer sub- contracted the work in dispute, Kraft's concern expressed to Wolf was whether Lippert intended to hire carpenters for the work. Subsequently, the Carpenters struck Bauer, but not before requesting the work from Lippert and threatening a strike unless it was assigned to carpenters. Thus, there is record evidence which demonstrates to us that the Carpenters' real dispute herein was with Lippert because it refused to assign the work in issue to carpenters, rather than with Bauer because it subcontracted the work in the first instance, and that a purpose of the Carpenters strike, though directed against Bauer, was to exert pressure on Bauer to compel Lippert to hire carpenters instead of bricklay- ers. We therefore find that there is probable cause to believe that the Carpenters violated Section 8(b)(4)(D) of the Act and that the dispute is properly before the Board for determination under Section 10(k) of the Act.8 E. Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to various relevant factors. 1. Certification and collective-bargaining agreements Neither the Bricklayers nor the Carpenters has been certified by the Board as the collective-bargain- ing representative of any employees involved in this dispute. The Bricklayers has a contract with Lippert that covers employees who are engaged in masonry work. The Carpenters has no contract with Lippert. 2. Skills, economy, and efficiency of operation The bricklayers possess the necessary skill to perform the laying of haydite blocks. The work involves a masonry product which is virtually indistinguishable from red tile that is also used in floor construction, and which was installed by bricklayers when the St. Elizabeth Hospital was first constructed. It does not appear that carpenters have any skill superior to that of bricklayers in the laying of haydite blocks. The work of laying the blocks on the plywood deck is not a continuous operation, but is required at any time during the workday, depending on the comple- r The contract contains the following pertinent clauses ARTICLE I RECOGNITION AND SCOPE Section I Bargaining unit The bargaining unit shall be comprised of all employees engaged in the work described in Section 3 of this Article The territory covered by this agreement is as described in Section 4 of this Article Section 3 . Occupational scope This agreement covers all work of all branches of the trade (as set forth in the Constitution ) of the United Brotherhood of Carpenters and Joiners of America , as the same has been interpreted from time to time The trade autonomy of the United Brotherhood of Carpenters and Joiners of America includes , but is not limited to, the milling, fashioning, joining, assembling, erecting, fastening or dismantling of all materials of wood, plastic , metal, fiber, cork and composition , and all substituting materials. Section 6 Performance of work by employees in bargaining unit The employees in the bargaining unit and only such employees shall perform all of the work covered by this Agreement ARTICLE VIII PROTECTION OF PREVAILING WAGES AND CONDITIONS AND OF UNIT WORK Section 4 Subcontracting-Unit Work. The territorial and occupation- al jurisdiction of the Union , as stated in this Agreement , shall be recognized to the end that the Employer shall not subcontract or contract out such work nor utilize on the job site the services of any other person, company, or concern to perform such work that does not observe the same wages, fringe benefits, hours, and conditions of employment as enjoyed by the employees covered by this Agreement 8 The Carpenters motions to quash are therefore denied Its communica- tion to the Regional Director following issuance of the notice of hearing advising that it "asks nothing of Lippert and does not seek to have Lippert assign the work identified in the Notice of Hearing " does not warrant a different result. This is the identical position maintained by the Carpenters throughout the hearing in support of its contention that its sole dispute herein is with Bauer over work preservation under the contract, a contention which we have rejected. The record thus does not provide assurance against further work disruption by the Carpenters See United Mine Workers of America, District 50 (Turman Construction Company), 136 NLRB 1068, 1071. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion by other craftsmen of certain preliminary work, and must be expeditiously completed in order to permit other craftsmen to do their work, before the concrete is poured. As Lippert has bricklayers doing other work on the project, such as building walls, he is able to shift bricklayers from other areas to the laying of haydite blocks with little loss of working time. In the event Lippert was required to use carpenters, he would have to obtain them at odd hours of the workday for about 2 or 3 days' work. Lippert also employs hod carriers who specialize in servicing bricklayers, whereas carpenters are serviced by laborers, who are not as experienced as hod carriers. 3. Area practice The laying of haydite block for the St. Elizabeth Hospital project is the first time that Lippert has used such material as filler tile in the construction of concrete floors. Neither members of the Carpenters nor the Bricklayers have previously handled such blocks within their respective jurisdictional areas for this type of construction. With the exception of one job in Springfield, Illinois, outside the Carpenters jurisdiction, where carpenters installed haydite blocks as filler tile, the overwhelming practice in the area and in the construction industry nationwide is for masonry products to be handled by bricklayers. As previously noted, in the original construction of the St. Elizabeth Hospital bricklayers used red clay, a masonry product like haydite block, for the floor construction. The laying of haydite blocks for wall construction has also recently been used by bricklay- ers on a job in Litchfield, Illinois, beyond the territorial area of the Unions involved herein.9 Conclusion Upon the entire record in this proceeding and after full consideration of all the relevant factors, we conclude that the employees of Lippert who are represented by the Bricklayers are entitled to the work in question and we shall determine the dispute in their favor. In making this determination, we award the work to the employees of Lippert who are represented by the Bricklayers, but not to that Union or its members. Our present determination is limited to the dispute which gave rise to this proceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(c) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board hereby makes the following Determination of Dis- pute: 1. Employees employed by Lippert Brick Con- tracting, Inc., who are currently represented by Bricklayers, Masons, and Plasterers International Union of America, AFL-CIO, Mason Subordinate Union No. 2 of Belleville, Illinois, are entitled to the laying of haydite blocks on plywood decks used in the construction of concrete floors at the St. Elizabeth Hospital building project in Belleville, Illinois. 2. United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No. 433, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Lippert Brick Contracting, Inc., to assign the above work to carpenters represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No. 433, shall notify the Regional Director for Region 14, in writing, whether or not it will refrain from forcing or requiring Lippert Brick Contracting, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work to carpenters represented by it rather than to bricklayers represent- ed by the Bricklayers. 9 The record shows that mortar is used in the laying of bucks or haydite blocks in wall construction, but that very little mortar is used in laying haydite blocks for floor construction.