Local 433, United Carpenters

National Labor Relations Board - Board Decisions

Mar 8, 1973

202 N.L.R.B. 293 (N.L.R.B. 1973)

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.