Carpenters, Local 433

CARPENTERS, LOCAL 433 United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No. 433 and Lippert Brick Contracting, Inc. Case 14-CC-771 March 8, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On September 28, 1972, Administrative Law Judge Thomas S. Wilson issued the attached Decision, recommending that the complaint be dismissed. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respondent filed an answering 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge to the extent that they are consistent herewith. The Administrative Law Judge found that Respon- dent Carpenters did not violate Section 8(b)(4)(B) of the Act when it engaged in a strike against Bauer, the general contractor on a jobsite where its employees and those of Lippert, a subcontractor, were em- ployed. The Administrative Law Judge based this conclusion on a finding that the Respondent's strike against Bauer was a primary one for the reason that it was seeking to preserve, and was protesting the subcontracting to Lippert of, work which was "clearly claimable" under its contract with Bauer. We find merit in the General Counsel's exceptions to the recommended dismissal of the complaint. Bauer has a collective-bargaining contract with the Carpenters covering its carpenters.' This contract contains the subcontracting provision quoted in the margin2 and Bauer had, prior to the events herein, subcontracted unit work to subcontractors who employed carpenters without protest by the Carpen- ters. In February 1972, Bauer began work as the general contractor to add five additional floors to the i Art I, sec 3, of the contract provides 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 disman- tling of all materials of wood, plastic, metal, fiber, cork and composition, and all substituting materials z Art VIII, sec 4, of the contract , not referred to by the Administrative Law Judge, provides Subcontracting-Unit Work 297 St. Elizabeth Hospital in Belleville, Illinois. In March, it subcontracted to Lippert all the masonry work on this project. Lippert employed bricklayers to lay the haydite blocks.3 During April, Al Kraft, business representative of the Carpenters asked Wolf, Bauer's superintendent, if Lippert intended to hire carpenters to lay the haydite blocks. Wolf replied that Bauer had no control over who was going to do this work because it had been subcontracted to Lippert and suggested that Kraft find out from Lippert if Lippert intended to use carpenters. On May 24, 1972, after the temporary plywood deck for the initial floor of the addition to the hospital had been completed and while Bauer's carpenters were laying out the deck for the position- ing of the haydite blocks, which were being laid by Lippert's bricklayers, Hassenbrock, the Respondent's job steward, told Wolf that the carpenters would not work on the same deck with the bricklayers because they were doing work that belonged to the carpen- ters. 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 Ken Lippert inquired as to the trouble, Hassenbrock answered that Kraft had told him that the carpenters were not allowed to work with the bricklayers because the laying of haydite blocks was the carpenters' work. Upon receiving assurances from Hassenbrock that the carpenters were refusing to do any of the layout work, Ken Lippert said, "Well, that is fine . . . we will do it all." Soon thereafter, Wolf asked Hassenbrock if the carpenters would work on other areas of the project and the latter said that 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, upon being told by Wolf that the carpenters were going to walk off the job, asked Hassenbrock what was going on. According to Ken Lippert, he was told by Hassenbrock that he, Hassenbrock, "felt that this haydite block was his work and the other carpenters kind of said they The territorial and occupational 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 3 The specifications in the subcontract to Lippert provided that the filler tile used in the construction of concrete floors be made of either lightweight concrete blocks, such as haydite blocks, or clay tile, also referred to as red tile, and Lippert decided upon haydite blocks 202 NLRB No. 47 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreed with that and that they were going to go off the job until we gave it to them."4 Lippert did not reassign the work and nine of Bauer's carpenters walked off the job. On May 25, 1972, Lippert filed unfair labor practice charges alleging that Respon- dent had violated Section 8(b)(4)(B) and (D) of the Act.5 The carpenters returned to work on June 1, 1972. While we agree with the Administrative Law Judge that the Respondent induced and encouraged the carpenters employed by Bauer to go on strike, we do not agree with his conclusion that the strike was primary and permissible because its object was to protest Bauer's subcontracting of unit work which it viewed as "clearly claimable" under its contract with Bauer. On the basis of the facts recited above, we are convinced that, though the strike was directed against Bauer, the Carpenters was not in any real dispute with Bauer over its subcontracting action, but was primarily concerned with the fact that Lippert had decided to hire bricklayers rather than carpenters for the laying of haydite blocks. Thus, the contract between the Carpenters and Bauer, even assuming that the laying of haydite blocks was covered thereby, contained no prohibition against the subcontracting of unit work. Indeed, it was sanctioned by the contract and Bauer had subcon- tracted unit work on the instant project without protest by the Carpenters. On those occasions, however, as explained by Business Representative Kraft, no problems were presented because the subcontractors employed carpenters for the perform- ance of the work, whereas Lippert did not. That this is the critical difference as viewed by the Carpenters in the subcontracting situations of unit work, but of no significance under the Bauer-Carpenters contract, is underscored by the fact that, when Bauer subcon- tracted the work herein, Kraft's concern as expressed to Wolf was whether Lippert intended to hire carpenters to do this work. Thereafter, the Carpen- ters requested such work from Lippert, threatened to strike unless carpenters got it, and then, when the work was not forthcoming, called the strike against Bauer. It thus appears to us that the Respondent has embroiled Bauer in a primary dispute it had with Lippert, the object of the strike being to exert pressure on Bauer to compel Lippert to hire 4 Also not mentioned by the Administrative Law Judge is this testimony by Lippert However, it is neither denied nor contradicted and no reason appears for not fully crediting it 5 On this date, the Board is issuing its Decision and Determination of Dispute in Case 14-CD-428, involving the same parties and the same disputed work. United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No 433 (Lippert Brick Contracting, Inc), 202 NLRB No 46 Upon finding probable cause that the Respondent herein violated Sec 8(b)(4)(D) of the Act, the Board is awarding the laying of the haydite blocks carpenters or to cancel its subcontract with Lippert. By striking Bauer for such an unlawful object, we find that the Respondent has violated Section 8(b)(4)(i) and (ii)(B) of the Act .6 The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. Having found that the Respondent has engaged in unfair labor practices in violation of the Act, we shall issue an Order designed to effectuate the policies of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No. 433, its officers, agents, and representatives, shall: 1. Cease and desist from engaging in, or inducing or encouraging any individual employed by Bauer Brothers Construction Co., Inc., or by any other person engaged in commerce or an industry affecting commerce, to engage in, a strike or a refusal in the course of his employment to perform any services; and from threatening, coercing, or restraining the above-named employer or any other person where, in either case, an object thereof is to force or require the above-named employer or any other person to cease doing business with Lippert Brick Contracting, Inc. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at its business offices and meeting halls copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish said Regional Director for Region 14 signed copies of the aforesaid notice for posting by the above-named companies, these companies will- ing, at places where they customarily post notices to their employees. to the bricklayers employed by Lippert who are members of the Bricklayers. 6 See Local No 825, International Union of Operating Engineers, AFL-CIO (Burns & Roe, Inc ), 162 NLRB 1617, 1620-22, affd . 400 U.S. 297 7 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." CARPENTERS, LOCAL 433 - 299 (c) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps the Respondent has 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 engage in a strike, or induce or encourage any individual employed by Bauer Brothers Construction Co., Inc., or any other person engaged in commerce, or in an industry affecting commerce, to engage in a strike or a refusal in the course of his employment to perform any services; nor will we threaten, coerce, or restrain the above-named employer, or any other person, where in either case, an object thereof is to force or require the above-named employer, or any other person, to cease doing business with Lippert Brick Contracting, Inc. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, LOCAL No. 433 (Labor Organization) 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 compli- ance with its provisions may be directed to the Board's Office, 210 North 12th Boulevard, Room 448, St . Louis, Missouri 63101, Telephone 314-622 -4167. DECISION STATEMENT OF THE CASE THOMAS S. WILSON, Administrative Law Judge:1 Upon a charge duly filed on May 25, 1972, by Lippert Brick Contracting, Inc., herein referred to as Lippert or as the Charging' Party, the General Counsel of the National 1 A title change only 2 This term specifically includes the attorney appearing for the General Counsel at the heanng 3 The complaint actually reads "Section 8(b)(i)(ii)(B)." In accordance Labor Relations Board, herein referred to as the General Counsel2 and the Board, respectively, by the Regional Director for Region 14 (St. Louis , Missouri), issued its complaint thereon dated June 12, 1972 , against United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No . 433, herein referred to as Local 433 or the Respondent. The complaint herein alleged that Respondent has engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(i) and (ii)(B)3 and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, herein referred to as the Act. Respondent duly filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices and particularly that Respon- dent had any dispute with the Charging Party (Lippert) as alleged in the complaint.4 Pursuant to notice the hearing hereon was held in St. Louis, Missouri, on July 17 and 18 , 1972, before me. All parties appeared at the hearing, were represented by counsel, and were afforded full opportunity to be heard, to produce and cross-examine witnesses , and to introduce evidence material and pertinent to the issues. At the conclusion of the hearing oral argument was waived. Briefs were received from General Counsel , Charging Party, and Respondent on August 29, 1972. Upon the entire record in the case and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF CHARGING PARTY The complaint alleged, the answer admitted, and I hereby find that: Lippert Brick Contracting, Inc., is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Delaware. At all times material herein Lippert has maintained its business office and place of business at 906 Centerville Avenue in Belleville, Illinois. Lippert is, and has been at all times material herein, engaged in business as a brick and masonry contractor. During the year ending December 31, 1971, which period is representative of its operations during all times material hereto, Lippert, in the course and conduct of its business operations, purchased and caused to be transported and delivered at its Belleville, Illinois, place of business, supplies, machinery, and building materials and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its place of business in Illinois, directly from points located outside the State of Illinois. Bauer Brothers Construction Co., Inc., herein referred to as Bauer, is, and has been at all times material herein a corporation duly organized to do business in the State of Illinois. At all times material herein, Bauer has maintained with the assumption of all parties at the hearing, I hereby order the complaint amended to accord with the above. 4 This pleading will be further elucidated hereinafter. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an office and place of business at 424 Lebanon Avenue in Belleville, Illinois. Bauer is, and has been at all times material herein, engaged in the construction business as a general contractor. During the year ending December 31, 1971, which period is representative of its operations during all times material hereto, Bauer, in the course and conduct of its business operations, purchased and caused to be transported and delivered at its Belleville, Illinois, place of business building materials, supplies, and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its place of business in Illinois directly from points located outside the State of Illinois. During the year ending December 31, 1971, Bauer performed services valued in excess of $50,000, of which services valued in excess of $50,000 were performed in and for various enterprises located in States other than the State of Illinois. Accordingly, I find that Lippert and Bauer are now and have been at all times material herein employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and are persons engaged in commerce or in an industry affecting commerce within the meaning of Section 8(b)(4)(B) of the Act. II. THE RESPONDENT United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No. 433, is a labor organization within the meaning of Section 2(5) of the Act . It was also admitted that the business agent of Local 433 was Alfred Kraft and the steward on the job in question here was Elmer Hassenbrock. III. THE UNFAIR LABOR PRACTICES A. The Facts 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. Acting upon an oral telephoned bid, Bauer entered into a written subcontract dated March 8, 1972, with Lippert which provided in pertinent part as follows: Article 1. The subcontractor [Lippert] agrees to furnish all material and perform all work as described in Article 2 hereof for the construction of St. Elizabeth Hospital, Belleville, Illinois for the Hospital Sisters of the Third Order of St. Francis, hereinafter called the owner, at Belleville, Illinois. In accordance with the general conditions of the contract between the owner and the contractor and in accordance with the supplementary general conditions, the drawings and specifications prepared by Berners Schober and Kelp, 310 Pine Street, Greenbay, Wisconsin 54301, ter called the architect.. . . Article 2. The subcontractor and the contractor agree that the materials to be furnished and work to be done by the subcontractor shall include MASONRY. In accordance with drawings and Section 10 of the specifications including Addenda I through 9. Bauer Brothers Construction Co., Inc. (Bauer), was the general contractor on a project to add five additional floors to the existing St. Elizabeth Hospital in Belleville, Illinois. Work began on the project about ' February 1, 1972. Respondent and Bauer were admittedly bound by a collective-bargaining agreement between Southern Illinois 'Builders Association (SIBA), of which Bauer was a member, and the Tri-Counties Illinois District Council of Carpenters with which Local 433 was affiliated. This collective agreement contains the following perti- nent clauses: ARTICLE I RECOGNITION AND SCOPE BASE BID ALTERNATE 1B ALTERNATE IC ALTERNATE ID ALTERNATE IF FILLER TILE BASE BID ALTERNATE III ALTERNATE IC It was agreed at the hearing that "Section 10" of the specifications mentioned in article 2 of the subcontract had to do solely with the masonry portion of the subcontract and that the only mention of "Filler Tile" in the Section 1 . Bargaining unit. The bargaining unit shall be specifications was to be found in paragraph 6 of section 5 comprised of all employees engaged in the work of the specifications providing in pertinent part as follows: described in Section 3 of this Article. The territory 6. Filler Tile covered by this agreement is as described in Section 4 (a) Furnish and install Filler Tile for floor slabs of this Article. where scheduled. CARPENTERS, LOCAL 433 Block shall be held in position by nailing. Nails shall be cut off after stripping forms. (b) Wood pans shall be installed in lieu of tile where pipe spaces are required in Filler Construction ... . (c) At contractor's option, Filler Tile may be clay tile units in lieu of the lightweight concrete units specified above... . Whereas, Bauer was bound by the aforementioned contract with Respondent, Lippert had union agreements only with the Bricklayers Union, Laborers Union, and Operating Engineers Union. During 1 week in early April Carpenters Business Agent Al Kraft made three visits to the St. Elizabeth project where he saw and chatted with Bauer Superintendent Wolf in the construction shack at the project.5 On his first visit Kraft inquired as to what kind of filler and what kind of forms Bauer was going to have for the slabs in the concrete floor. Wolf answered that they were going to use filler tile. He added that Bauer had subcontracted part of this work to Lippert which might, depending upon the terms of the subcontract which at that time Wolf did not have, create a "problem."6 On the second visit, after again mentioning this possible problem, Wolf got out the plans of the project and showed them to Kraft. After looking at the plans Kraft stated that in his view the work laid out in the plans was -carpenters' work as the filler block was taking the place of "something like a pan deck." Wolf agreed that the filler was taking the place of a pan in creating a form.7 Kraft stated that he was surprised that Bauer had subcontracted this work as it was carpenters' work and the carpenters were going to do it. Wolf answered that he, Wolf, had no control over who was going to do the work because that had been sublet to Lippert and Lippert had to hire the men to do it. Wolf suggested that Kraft see Lippert to find out if Lippert intended to hire carpenters. Recognizing that he did have a problem over who was going to do the work on the filler tile Wolf had Project Manager Weiss come to the shack from the home office. Upon Weiss' arrival, Kraft inquired, "How in hell could you subcontract this work out?" He stated that the carpenters should be doing the work because the haydite block was taking the place of the pans that they had been using before. He also mentioned the fact that in Spring- fields the carpenters had been doing this work with the haydite blocks. After some discussion Weiss acknowledged that he "maybe made a mistake."9 Wolf suggested that they ought to have a meeting and straighten this problem out. At the request of Bauer, SIBA, through its Executive 5 Neither Kraft nor Wolf was able to clearly differentiate between these three conversations as they were all very similar. 6 Wolf obviously foresaw a problem arising in the event that Bauer has subcontracted the "installation" of the filler tile to Lippert as provided in par 6 of sec 5 of the specifications. r Metal or wooden pans are frequently attached to the deck to make a form for a concrete pour. 8 About 100 miles away 9 Weiss did not think that he had made this remark but his denial was not convincing to Kraft had given a copy of this letter to his steward on the St Elizabeth job, Hassenbrock 301 Secretary Wayne Barber, Jr., called Bauer and Local 433 to a meeting on May 4. Unbeknownst to Respondent, Barber had also invited Lippert and Bricklayers Business Agent Marion Mueller to the meeting. All four parties attended. Barber opened the meeting by saying that it had been called for the purpose of solving a jurisdictional problem which had arisen. Ray Lippert, president of Lippert, then stated that his men were going to lay the haydite block but that Bauer's men would snap the lines, nail the bands to the plywood deck, and then band the haydite block in place. Kraft replied that under these conditions there was a problem. He also provided those in attendance at the meeting with a "To Whom It May Concern" letter from the Evans Construction Co. stating that at two of its projects in or near the vicinity of Springfield, Illinois, `"We have installed 6 inch, 8 inch and 10 inch thick and 12 inch wide light weight concrete filler tile between the concrete floor joist which act as a form by using carpenters." 10 Barber then stated that apparently under these conditions the persons present would not be able to solve the problem confronting them and that he, therefore, was going to call in the Unions' International representatives to a meeting. Bauer's representatives there stated that he thought that the work on the deck could be delayed until after such a meeting of the International representatives could be held. The meeting thereupon broke up.11 The crisis arrived on May 24 and before the Internation- al representatives had been able to meet on the problem. On May 24 the plywood deck for the first floor of the new addition (actually the fifth floor of the building) had been built and Bauer's carpenters had partially snapped the lines necessary for the laying of the haydite block and nailed the bands to the deck. That morning the haydite block was raised to the plywood deck on cranes operated by operating engineers employed by Lippert. And there- upon bricklayers, also employed by Lippert, proceeded to lay the haydite block on the bands already nailed to the plywood deck. Upon seeing the Lippert bricklayers doing this work, Carpenter Steward Hassenbrock complained to Bauer Superintendent Wolf that, if the bricklayers were going to do the carpenters' work, the carpenters would not work on the same deck as the bricklayers. Following Hassenbrock's announcement Wolf went over to Kenny Lippert, Lippert's superintendent on the job, and told him that he should go talk to Respondent's steward as there was a problem over the laying of the haydite.12 When Kenny Lippert inquired as to the trouble, Hassenbrock answered that Kraft had told them that the carpenters were not allowed to work with the bricklayers because the laying of the haydite was carpenters work which the carpenters wanted to do. Upon receiving assurances that the carpen- 11 Bricklayers Business Agent Mueller testified that during this meeting Kraft had stated to Lippert, "You would do me a big favor if you'd give it [the blocklaying] to me " Mueller was the only witness to so testify and he had to be recalled to the stand by the Charging Party to give this testimony Kraft denied making the statement . I credit Kraft's denial in large part because Ray Lippert, to whom the remark allegedly was addressed , was not called as a witness which raises an inference that his testimony would have been adverse to the Charging Party's case. 12 A few days before Ray Lippert had informed Kenny Lippert that Lippert was to lay the haydite but the carpenters would do the layout and banding work. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ters were refusing to do any of the layout or banding under the circumstances, Kenny Lippert said, "well, that is fine ... we will do it all." Thereafter Wolf offered the carpenters work on another portion of the project which Hassenbrock agreed to do. However at noon Hassenbrock returned and informed Wolf that the carpenters had decided that they would not work on the project with the bricklayers laying the haydite on the deck as that was carpenter work. The carpenters, including Hassenbrock, thereupon left the project. The strike was on. No pickets ever appeared. The carpenters merely remained away from work. The Lippert bricklayers thereupon proceeded to lay and band the block as required by the specifications. On this first floor the bricklayers cut several haydite blocks with a masonry saw in order to conform the blocks to the exact measurements required by the specifications.13 A couple of days thereafter Hassenbrock, on direct orders from Kraft, reported back to work but Wolf had no work for a single carpenter and, as he told Kraft, hesitated to recall his carpenter foreman so as to have a necessary team of carpenters for the reason that he did not wish to put his foreman in the awkward position of having to decide whether to work or not with the bricklayers. Hence Wolf sent Hassenbrock home. As heretofore found, on this first deck of the project the Lippert bricklayers completed the work of snapping the lines, nailing the bands to the deck, laying the haydite, and banding the haydite into place prior to the concrete pour. It was on this deck the Lippert bricklayers cut a few haydite bricks with a masonry saw in order to conform the haydite to the exact measurements of the specifications.14 On May 25 the charge in the present case was filed in Lippert's name by attorneys for Lippert. On June 1 Bauer's whole carpenter crew reported back for work as Kraft had notified Bauer the night before that the crew would do. Since that time the work on the St. Elizabeth project has proceeded without interruption and injust the manner Ray Lippert had stated at the May 4 meeting it would be done. The carpenters are snapping the lines, nailing the bands to the plywood deck and, after Lippert's bricklayers lay the haydite on the bands, the carpenters band the haydite together and tighten the bands. Thereafter the cement for the floor is poured. The work has continued in that manner without interruption since the carpenters returned on June 1. B. Conclusions General Counsel set forth the gravamen of his complaint in paragraphs 6 and 7 thereof which read as follows: 6. At all times since April 15, 1972, Respondent has had a labor dispute with Lippert. 7. In furtherance of its dispute with Lippert, Respondent, commencing on or about May 24, 1972, engaged in a strike against and refused to perform any services for Bauer at St. Elizabeth's hospital annex project. This pleading has the merit of being very succinct as well as lucidly indicating the alleged secondary nature of Respondent's strike. However Respondent denied that it had any labor dispute with Lippert. Instead Respondent contended that its dispute was with Bauer and caused by the terms of its collective-bargaining agreement with Bauer and was strictly for a work preservation purpose under the terms of that agreement. At the hearing Respondent also stated that it had no desire to reach the question of whether Respondent had "induced or encouraged" its members to strike Bauer. In this Respondent was wise because the facts presented here indicate all too clearly that Respondent through Kraft, by giving a copy of the Evan's Construction Company letter to Job Steward Hassenbrock, and Steward Hassenbrock both induced and encouraged the Bauer carpenters to strike Bauer on May 24. So the question involved here becomes: Do the facts justify the pleading? Actually the labor dispute here boiled down to a question of who was to perform the work of laying the haydite block: Carpenters employed by Bauer or bricklay- ers employed by Lippert? Out of this molehill grows this mountainous case.15 Respondent had a contract with Bauer which provided in section 6 thereof, in substance, that all unit work must be done by unit employees. Section 3 thereof defined unit work as, in pertinent part, "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... . It was upon this basis that, upon seeing the project plans, Respondent Business Agent Kraft burst forth with, "how in hell could [Bauer] subcontract this work?" as well as claiming that work to be carpenters' work. In fact during these conversations, as well as in his testimony, Bauer's superintendent Wolf indicated agreement with Kraft's remarks and even Bauer's Project Manager Weiss, who had entered into this ill-fated subcontract, remarked that he might have made "a mistake" in so doing. On the other hand, the Carpenters had no contractual relationship with Lippert and thus had no claim against Lippert at all. Lippert did work clearly not included within the Carpenter's jurisdiction. So, when Wolf, worried about the possible problem as to who was going to do the work required on these haydite blocks, suggested that Kraft should see Lippert and find out if he intended to hire carpenters on that job, Kraft did not see fit to do so. In fact it cannot be questioned that the Carpenters never even 13 The masonry saw has not been required on any floor since then The exclusive symbol of the bricklayer trade. specifications had been slightly relaxed 15 Of the nearly $2 million subcontract here involved only about 14 Although carpenters were said to be intelligent enough to operate a $100,000 was involved in the furnishing and laying of haydite blocks masonry saw, and, in fact, had done so, that instrument seems to be an CARPENTERS, LOCAL 433 303 spoke to Lippert about this employment matter or anything else regarding the problem. That, no doubt, is why SIBA called the meeting of May 4 to try to get the Respondent talking with Lippert and possibly straightening out the problems caused by this subcontract. Even there, despite the contrary testimony of Bricklayers Business Agent Mueller 16 and SIBA Executive Secretary Barber who expressed his opinion that he "considered" that Kraft was speaking to Lippert at one point during the meeting, the Respondent had nothing to say during this whole period to Lippert. They had no complaint against Lippert. Their complaint was that, contrary to its agreement with Respondent, Bauer had subcontracted out work belonging to the Carpenters under that contract to Lippert. In fact, as Superintendent Wolf appeared to know and to concede, Bauer had in fact apparently subcontracted unit work contrary to the terms of its contract with the carpenters to Lippert. Wolf saw the problem. In fact, he was the first one to recognize that this subcontract created the problem. It was Wolf who called the problem to Kraft's attention. It appears to have been recognized on all sides at the hearing that the building of forms on the plywood deck prior to a concrete pour has been traditionally carpenters' work regardless of whether these forms were made of wood, metal, or even cardboard. Even prior to the time that the lawyers got into the act here, Lippert recognized this Carpenter jurisdiction because all he wanted from this subcontract on "filler tile" was to lay the haydite block. He wanted no part of the rest of the installation of the block. It was a few days prior to May 4 when Ray Lippert happily notified his son Kenny, who was Lippert's superintendent on the job, that the subcontract had been orally amended so that Bauer's employees were to snap the lines and nail the steel bands to the deck, and, after the Lippert employees had laid the haydite on those bands, were to band the blocks so laid in place for the pour. In fact, except when the carpenters left the project, that is the way the work has been performed. Originally it was the very indefiniteness of the terms of the subcontract which confused. Nobody appeared to know whether the item, "Filler Tile," in this subcontract, with its incorrect reference to section 10 of the specifica- tions, meant that Lippert was only to "furnish" the haydite or whether, as the correct reference to paragraph 6 of section 5 of the specifications indicated, Lippert was to both "furnish and install" the haydite. If the former, then the subcontract did not intrude on the unit work set forth in the Carpenter-Bauer contract. If the latter, then arguably at least, the subcontract would appear to remove unit work from unit employees-and Wolf's problem became real indeed. As General Counsel and the Charging Party were quick to point out, "haydite" block is not specifically mentioned in the Carpenter-Bauer agreement. In fact, haydite, a relatively new low weight product, had never before been used in a concrete floor within the territorial jurisdiction of Local 433. Hence, according to the aforementioned parties, there was no precedent that haydite was included within the aforementioned unit work definition of the agree- ment.17 However it was admitted that in the plans for this project the haydite blocks were being used for two purposes: (1) to create a cavity or "void" in the cement thereby, due to the lesser weight of the haydite block, lightening the weight of the floor, and (2) creating joists of thicker concrete for the purpose of holding up weight. Traditionally carpenters have fastened metal or wooden pans to the plywood deck prior to the cement pour for exactly the same purposes: (1) to create weight reducing "voids," and (2) to form joists. The only difference between the use of the pans and the banded haydite blocks for these purposes was that the pans were knocked out of the bottom of the concrete floor after the cement had hardened whereas the haydite blocks remained attached in the cement, thus leaving the lower or underneath portion of the floor flat and level instead of being convoluted as when the pans were removed. Thus for the purpose of making the forms, the banded haydite blocks constitute merely a "substituting material" for the wood or metal pans. And thus the work, even as Wolf and Weiss both apparently saw it, was indeed, as phrased by Respondent's counsel, "fairly claimable" by the Carpenters under the terms of its contract with Bauer. Bauer, through both Wolf and Weiss, recognized that this alleged contract violation in subcon- tracting work fairly claimable for Bauer employees to Lippert was the cause of the strike. Thus the strike was addressed to the labor relations of the contracting employer, Bauer, vis a vis his own employees. As such the strike of May 24 was a primary strike. It also had a work preservation purpose to it. As the Board said in the recent case of Building Material & Construction Teamsters Union Local No. 216, Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America and Bigge Drayage Company, 198 NLRB No. 130: ... thus, when the agreement is intended to protect and preserve unit work it is primary and permissible, whereas an agreement "tactically calculat- ed to satisfy union objectives elsewhere" is secondary and impermissible. The determination must be made on the basis of all the attending circumstances. Accordingly the facts here require a finding, which I here make, that Respondent struck Bauer on May 24, 1972, over a legitimate question of interpretation of the existing labor agreement between these two parties for the purpose of preserving work which was "clearly claimable" under the interpretation of that agreement held by Respondent. The work involved in this claim was work vis a vis Bauer's own 16 See the credibility resolution, supra. 19 The only "precedent" cited within the territorial jurisdiction of Local 433 was in the construction of the original portions of the St Elizabeth's Hospital where red tile, unbanded and unnailed to the deck, was used as a filler to create voids In this instance, occurring some 20 years before, red tile was laid by bricklayers who at that time were employees of Bauer as were the carpenters This is a weak precedent at best. 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees. Hence the strike of May 24, 1972, against Bauer was a primary and permissible strike by Respon- dent18 and thus no violation of Section 8(b)(4)(i) and (ii)(B). I further find that at no time herein did Respondent have a labor dispute with Lippert as alleged in the complaint. Lippert was merely the unfortunate third party to whom Bauer happened to apparently subcontract some of the work to which Respondent could, and did, make a legitimate, or at worst a colorable, claim under the work preservation clause of the Respondents-Bauer agreement.19 Construction Co., Inc., are employers engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and are persons engaged in commerce or in an industry affecting commerce within the meaning of Section 8(b)(4)(B) of the Act. 2. United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No. 433, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in nor is engaging in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. Consequently I will dismiss this complaint in toto.20 CONCLUSIONS OF LAW 1. Lippert Brick Contracting, Inc., and Bauer Brothers is General Counsel's argument on the secondary nature of this strike follows Respondent's Object Was to Force Bauer to Cease Doing Business With Lippert On May 24, 1972, when Respondent engaged in its stoke against Bauer, Lippert was performing its subcontract to do the filler block work Lippert was doing this work with its own employees who were members of the Bricklayers Union When the Respondent demanded that Bauer give the filler block work to its Carpenter members, this was tantamount, under the law, to a demand that Bauer cease doing business with Lippert N LR B v Local 825, Operating Engineers [Burns and Roe, Inc ], 400 U S 297 I find this argument unpersuasive and the case cited inapposite for the simple reason that the work preservation clause involved here was contained in Respondent 's contract with Bauer, the primary employer, so that there was no involvement of neutrals in this instant case and no illegal motivation need. be, or can be, implied. The instant case is a plain contract interpretation case between Bauer and Respondent and throughout it remained such. 19 One caveat Herein I make no work assignment determination as that is not involved in this case That can be properly determined in an 8(b)(4)(D) case. 20 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes