United Brotherhood of Carpenters, Local 433

UNITED BROTHERHOOD OF CARPENTERS, LOCAL 433 63 United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No. 433 and Lippert Brick Contracting, Inc. Case 14-CD-428 November 8, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On July 10, 1973, Administrative Law Judge James V. Constantine issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the Charging Party 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 and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, United Brother- hood of Carpenters and Joiners of America, AFL-CIO, 'Local No. 433, Belleville, Illinois, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. 1 Although the Respondent complains about being precluded from presenting evidence at the hearing, it has proffered no evidence which would alter our agreement with the Administrative Law Judge, based upon our de novo review of the record, that its conduct violated Sec. 8(b)(4)(D) of the Act. DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Administrative Law Judge: This is an unfair labor practice case litigated pursuant to Section 10(b) of the National Labor Relations Act, herein called the Act. 29 U.S.C. 160(b). The complaint herein, naming Local No. 433 as the Respondent, issued on March 29,' 1973, and is based on a Board Decision and Determination of Dispute issued on March 8, 1973. That decision in turn is predicated on a charge filed on May 25, 1972, by Lippert Brick Contracting, Inc., naming said Local No. 433 as Respondent. Said complaint was issued by the General Counsel of the Board, through the Regional Director of Region 14. In substance, said complaint alleges that Respondent violated Section 8(b)(4)(i) and (ii)(D), and that such conduct affects commerce within the meaning of Section 2(6) and (7), of the Act. Respondent's answer, as amended at the trial, admitted some of the averments of the complaint but denied that it engaged in any unfair labor practices. Pursuant to due notice this case came on to be heard, and was tried before me, at St. Louis, Missouri, on May 21, 1973. All parties were represented at and participated in the trial and had full opportunity to adduce evidence, examine and cross-examine witnesses, file briefs, and offer oral argument. Briefs have been received from the General Counsel and Respondent Local No. 433. The issue in this case is whether Respondent has complied with the Board's Decision and Determination of Dispute as reported in 202 NLRB No. 46. Upon the entire record in this case, including the stipulation of the parties, I make the following: FINDINGS OF FACT 1. AS TO JURISDICTION In its Decision and Determination of Dispute the Board found that Lippert Brick Contracting, Inc., herein called Lippert, a Delaware corporation, and Bauer Brothers Construction Co., Inc., herein called Bauer, an Illinois corporation, each is an employer engaged in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act and that it would effectuate the policies of the Act to assert jurisdiction in that proceeding. Accord- ingly, I also make said findings, based on said decision as well as admissions contained in Respondent's answer. II. THE LABOR ORGANIZATIONS INVOLVED United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No. 433, herein called the Carpenters, and Bricklayers, Masons, and Plasterers International Union of America, AFL-CIO, Mason Subordinate Union No. 2 of Belleville, Illinois, herein called the Bricklayers, each is a labor organization within the, meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES In February 1972, Bauer began work as the general contractor on a project to add five additional floors to St. Elizabeth's Hospital in Belleville, Illinois. In March of the same year Bauer subcontracted to Lippert all the masonry work, including the laying of haydite blocks in construct- ing the concrete floors, on said project. Lippert assigned the laying of these blocks to its employees who are members of Bricklayers. These blocks were to be laid on plywood decks used in constructing the floors at said hospital. In April 1972, Al Kraft, business representative of the Carpenters, which has a collective-bargaining contract with Bauer, ascertained that Lippert did not intend to hire carpenters to perform the work of laying said blocks and thereafter complained to Weiss, Bauer's project manager, that said work was carpenter world and should not have been subcontracted. As a result a meeting was held on May 12, 1972, at the office of Barber, executive secretary of 207 NLRB No. 6 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southern Illinois Builders Association. Bauer is a member of said association for the purpose of bargaining with the Carpenters. Representatives of Bauer, Lippert, the Carpen- ters, and the Bricklayers attended this meeting. Since the Carpenters and the Bricklayers each persisted in claiming that its members were entitled to do the work no solution to the dispute was achieved. On May 24, 1972, Lippert's bricklayers began laying the haydite blocks while the carpenters were working nearby on the same deck. Soon Hassenbrock, the Carpenters job steward, informed Wolf, Bauer's superintendent, that the carpenters would not work on the same deck with the bricklayers because the bricklayers were doing work which belonged to the carpenters. Wolf conveyed this informa- tion to Ken Lippert, who was supervising the laying of the haydite blocks, and suggested that Ken talk to Hassen- brock. When Ken asked Hassenbrock what the trouble was and why the carpenters were refusing to do any work, the latter answered that Kraft, the business representative of the Carpenters, had instructed Hassenbrock that the carpenters were not allowed to work with the bricklayers because the job of laying of haydite block belonged to carpenters. To this Ken responded, "Well, that is fine .. . we will do it all." Shortly thereafter, when Wolf asked Hassenbrock if the carpenters would work on other areas of the project, the latter replied that they would. Nevertheless at noon Hassenbrock told Wolf in the office that the carpenters would not work on the deck with the bricklayers. Then Wolf immediately thereafter told Ken Lippert, who happened to enter the office at the time, that the carpenters were going to walk off the job. When Lippert asked Hassenbrock what was transpiring the latter replied that he "felt that this haydite block was his work and the other carpenters kind of agreed with that and that they were going to go off the job until" it was given to them. But Wolf refused to comply with Hassenbrock's request that such work be allotted to Bauer's carpenters. Thereupon 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. Although Bricklayers has a contract with Lippert as to the latter's masonry employees, Carpenters has no contract with Lippert. The foregoing facts are taken from the Board decision in the 10(k) proceeding reported in 202 NLRB No. 46. The ensuing facts in this and the next paragraph are taken from the Board's Decision and Order in United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No. 433, 202 NLRB No. 47, a companion secondary boycott case under Section 8(b)(4)(B) of the Act. Bauer's collective- bargaining contract with the Carpenters as to the former's carpenters has clauses providing that said agreement covered "all work of all branches of the trade of the United Brotherhood of Carpenters and Joiners of America, as the same had been interpreted from time to time . . . 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 employ- ees covered by this Agreement." Bauer had, prior to the above arrangement with Lippert, subcontracted unit work to subcontractors who employed carpenters without protest by the Carpenters. Upon the foregoing facts the Board found, in the Section 8(b)(4)(B) case, that Respondent induced and encouraged Bauer's carpenters to engage in a strike, and that the Carpenters had no real dispute with Bauer over its subcontracting action , but was principally concerned with Lippert's decision to hire bricklayers rather than carpenters for the laying of haydite blocks. Finally, the Board found that, since the primary dispute of Carpenters was with Lippert, a secondary boycott occurred when Carpenters called the strike against Bauer. See 202 NLRB No. 47. In the 10(k) proceeding (202 NLRB No. 46) the Board further decided that neither Carpenters nor Bricklayers had been certified by the Board to represent any of the employees involved in this dispute; that the bricklayers possessed the necessary skill to perform the laying of haydite blocks; the "overwhelming practice in the area" and in the construction industry nationwide, except for one job in Springfield, Illinois, "is for masonry products to be handled by bricklayers"; and that "the employees of Lippert who are represented by the Bricklayers are entitled to the work in question." Accordingly, the Board deter- mined the work in favor of Lippert's said employees and awarded the work to them. In addition, the Board determined that Carpenters was "not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Lippert . . . to assign the above work to carpenters represented by it." 202 NLRB No. 46. Finally, in said 10(k) proceeding the Board ordered that "Within 10 days from the date of this Decision and Determination of Dispute . . . Carpenters . . . shall notify the Regional Director for Region 14, in writing , whether or not it will refrain from forcing or requiring Lippert . . . 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 represented by the Bricklayers." On the basis of the foregoing findings and the entire record in this case, I make the following additional findings. A jurisdictional dispute exists between the Carpenters and the Bricklayers as to which is 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. Bauer, the general contractor on said project , has subcontracted said work (and other work) to Lippert, the specifications of said subcontract enumerating the materials which Lippert could use. One of those materials was haydite blocks, and Lippert decided upon such blocks. Lippert assigned the laying of these blocks to its employees who are members of the Bricklayers, thereby giving rise to said jurisdictional dispute. Further, I find that the Carpenters had no real dispute with Bauer over the latter's subcontracting action but was primarily concerned with Lippert's decision to employ bricklayers rather than carpenters to perform the task of laying haydite blocks. Additionally, I find that the Carpenters demanded the work of laying such haydite UNITED BROTHERHOOD OF CARPENTERS, LOCAL 433 65 blocks and that, when Lippert did not yield to said demand, the Carpenters called a strike of its members working in the vicinity where Lippert's employees were laying said blocks. And I find that the members of Carpenters did strike as a result of said call, and that said call amounted to inducing and encouraging said members to strike or to refuse in the course of their employment to perform services for Bauer. Also, I find that said call for a strike by Respondent Carpenters threatened, coerced, or restrained Lippert and Bauer. Then, again, I find that an object of said acts and conduct by the Carpenters was to force or require Lippert to assign the work in dispute, i.e., the laying of haydite blocks, to employees who are represented by the Carpen- ters rather than to employees who are represented by the Bricklayers. Pursuant to the stipulation of the parties I find that since the issuance of the Board's Decision and Determination of Dispute in the 10(k) proceeding, "there is no evidence that any conduct of [Respondent Carpenters] has induced or encouraged any individual employed by any person engaged in commerce or an industry affecting commerce, or threatened, coerced, or restrained any person engaged in commerce or an industry affecting commerce, where in either case an object thereof has been or is to force or obtain a work assignment contrary to said Decision and Determination of Dispute." See transcript, p. 7. However, I expressly find that Respondent Carpenters has not, as required by said Decision and Determination of Dispute, in writing notified the Regional Director for Region 14 "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 represented by the Bricklayers." In this connection, I find that, upon the record unfolded before me, Respondent Carpenters has not countermand- ed, revoked, withdrawn, recalled, or cancelled its demand for the disputed work, or otherwise notified Lippert or Bauer that its said demand is no longer in effect and will not be reasserted or advanced to obtain said work. Finally, I find that the above - described conduct of Respondent Carpenters with an object of obtaining said disputed work to be assigned to its members contravenes Section 8(b)(4)(i) and (ii)(D) of the Act. Respondent Carpenters has offered three defenses, none of which in my opinion defeats the finding above that it engaged in conduct contravening Section 8(b)(4)(i) and (ii)(D) of the Act. They are (1) that it was prevented from relitigating the facts in the 10(k) proceeding; (2) that its actions were sanctioned by its collective-bargaining con- tract with Bauer; and (3) that it has complied with the Board's Determination of Dispute as set forth in 202 NLRB No. 46. These defenses are briefly discussed at this point. (1) Respondent contends that it was entitled to introduce evidence at the trial herein to establish that the Board's Decision and Determination in the 10(k) hearing reported in 202 NLRB No. 46 was erroneously rendered. But at no time at the trial did Respondent indicate that the evidence it intended to adduce was unavailable at the time when the 10(k) hearing was held or that it was newly discovered since said hearing. Absent such a showing Respondent was precluded from relitigating the Board's assignment of the disputed work in question. Local Union No. 1456, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, 203 NLRB No. 64. Accordingly, Irule that this defense is not well taken. (2) Nor is there merit in Respondent's assertion that it was warranted in calling a strike to preserve work for its members and to obtain an assignment of the work in question because it was entitled to such work pursuant to its contract with Bauer. This defense must fail because it was decided by the Board in the 10(k) proceeding that such contract "sanctions Bauer's retention of Lippert for the performance of such work." See 202 NLRB No. 46. This construction of the contract by the Board of course is binding on me, and I must follow it. Pertinent extracts from said contract are recited in 202 NLRB No. 46, fn. 7, and need not be repeated here. (3) Likewise I rule that Respondent cannot press its defense that it has complied with the Board's determina- tion of dispute as related at 202 NLRB No. 46. Among other things said determination expressly commands that "within 10 days from the date of this Decision [i.e.. within 10 days from March 8, 1973 ] ... Carpenters ... shall notify the Regional Director for Region 14, in writing, whether or not it will refrain from forcing or requiring Lippert . . . 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 represented by the Bricklayers." Admittedly Respondent Carpenters has not so notified the said Regional Director, whether in writing or otherwise. At one time the Board merely stated in 10(k) cases where it found a respondent violating Section 8(b)(4)(D) that the latter "may notify the Regional Director . . . in writing what steps the Respondent has taken to comply with the terms of this Decision and Determination of Dispute." See Los Angeles Building and Construction Trades Council (Westinghouse Electric Corp.), 83 NLRB 477, 482-483. Consequently, "this failure [to notify the Regional Direc- tor], standing alone, is hardly sufficient to establish the noncompliance with the terms of the Board 's determina- tion. We believe that, because no affirmative action was required by the Board's determination, the failure to notify the Regional Director of what was or was not done does not alone establish noncompliance." Los Angeles Building and Construction Trades Council, 94 NLRB 415 at 417. But that practice has been abandoned by the Board. Since 1955 the Board has used "shall" instead of "may," in informing the Regional Director. See 112 NLRB at 816. Moreover, the Board, as a "minimal requirement for a finding of compliance with a 10(k) determination," has included "performance by the respondents of substantially the same kind of acts as would be required for a showing that they were intending to abide by a remedial order' of the Board ...: . Local 595, Ironworkers (Bechtel Corpora- tion}, 112 NLRB 812, 815. In said case the Board further held that "Not giving notice where one is under no obligation to do so may signify nothing. Failure to supply such notice in the face of a positive requirement is 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD equitable to a refusal.... we hold that the failure of the Respondents. . . to furnish written notice to the Regional Director as required by the determination gave rise to a presumption of noncompliance which warranted the General Counsel in issuing the complaint. . . . by... the failure of the Respondents to supply information which they were under a duty to submit, the General Counsel has sustained his burden of proving noncompliance." 112 NLRB at 817. Further, merely failing or refraining from continuing to engage in such forbidden conduct, without giving such written notice, will not aid Respondent because "the record does not provide assurance against further work disruption by the Carpenters." United Brotherhood of Carpenters, Local No. 433, 202 NLRB No. 46. Accord, Local 568, Ironworkers, AFL-CIO (Dickerson Structural Concrete Corporation), 204 NLRB No. 15. Nor is there any evidence in the record that the dispute has been adjusted. United Mine Workers, District 50 (Turman Construction Company), 136 NLRB 1068,107 1. It follows that the failure to supply such written notice to the Regional Director renders fatal this aspect of Respondent's defense. Cf. Frank W. Hake, 112 NLRB 1097,1099- 1100, where it was held that not furnishing the requisite notice establishes "the failure . . . to comply with the Board's determinations of disputes." IV. THE REMEDY As Respondent has been found to have engaged in conduct constituting violations of Section 8(b)(4)(i) and (ii)(D) of the Act, I shall recommend that it be ordered to cease and desist therefrom and that it take specific action, as set forth below, designed to effectuate the policies of the Act. Such specific action consists of the posting of appropriate notices . As the record does not disclose that Respondent displayed a general hostility to the Act, I find that a broad remedial against it is not warranted. Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Carpenters and the Bricklayers each is a labor organization within the meaning of Section 2(5) of the Act. 2. Bauer and Lippert each is an employer engaged in commerce as defined in Section 2(2), (6), and (7), and a person engaged in commerce or an industry affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(D) of the Act. 3. By engaging in, and inducing and encouraging individuals or employees employed by Bauer to engage in, a strike or refusal in the course of their employment to perform services, and by threatening, coercing, and restraining Bauer, where an object thereof in either case is to force or require Bauer or Lippert to assign the work of laying haydite blocks on plywood decks used in construct- I In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein will, as provided in Section 102.48 of said 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. ing concrete floors to individuals or employees who are members of the Carpenters rather than to employees of Lippert who are members of Bricklayers, Respondent has engaged in unfair labor practices forbidden by Section 8(b)(4)(i) and (ii)(D) of the Act. 4. The above-described unfair labor practices affect commerce within the contemplation of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER I United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No. 433, its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to comply with the Board's Decision and Determination of Dispute herein. (b) Engaging in, or inducing or encouraging individuals employed by Bauer or any other person engaged in commerce or an industry affecting commerce, to engage in, (1) a strike or refusal in the course of their employment to perform services, or (2) threatening, coercing, or restrain- ing Bauer or any other person engaged in commerce or in an industry affecting commerce, where, in either case, an object thereof is to force or require Bauer or Lippert to assign the work described below to individuals or employ- ees who are members of, or represented by, Respondent rather than individuals or employees who are members of, or represented by, the Bricklayers. The work which is involved is the laying of haydite blocks on plywood decks used in constructing concrete floors. 2. Take the following affirmative action: (a) Post at its meeting halls, business offices, and all other places where notices to members are customarily posted, copies of the attached notice marked "Appendix." 2 Copies of said notice, to be provided by the Regional Director for Region 14, after being signed by a duly authorized representative of the Respondent, shall be posted by it 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 displayed. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish the Regional Director for Region 14 signed copies of said notice for posting by Bauer and Lippert, if they are willing, in places where notices to employees of said Bauer and Lippert are customarily posted. Copies of said signed notice, to be supplied by said Regional Director, shall be transmitted by him to Bauer and Lippert. (c) Notify the Regional Director for Region 14, in 2 In the event the Board's 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." UNITED BROTHERHOOD OF CARPENTERS, LOCAL 433 67 writing, within 20 days from receipt of this Decision, 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 as set forth in 202 NLRB No. 46. WE WILL NOT engage in, or induce or encourage individuals employed by Bauer Brothers Construction Co., Inc., or any other person engaged in commerce or an industry affecting commerce, to engage in (1) a strike or refusal in the course of their employment to perform services, or (2) threaten, coerce, or restrain said Bauer Brothers Constructing Co., Inc., or any other person engaged in commerce or in an industry affecting commerce, where, in either case, an object thereof is to force or require said Bauer Brothers Construction Co., Inc., or Lippert Brick Contracting, Inc., to assign the work described below to individuals or employees who are members of, or represented by, us, rather than individuals or employees who are members of, or represented by, Bricklayers, Masons, and Plasterers International Union of America, AFL-CIO, Mason Subordinate Union No. 2 of Belleville, Illinois. The work which is involved is the laying of haydite blocks on plywood decks used in constructing concrete floors. 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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101, Telephone 314-622-4142.