Bricklayers, Local Union 1

National Labor Relations Board - Board Decisions

Jun 16, 1971

191 N.L.R.B. 231 (N.L.R.B. 1971)

BRICKLAYERS, LOCAL UNION 1 231
Bricklayers , Stone Masons, Marble Masons, Tile Set-
ters and Terrazzo Workers Local Union No. 1 of
Tennessee and Bricklayers, Masons and Plasterers
International Union of America and Shelby Marble
& Tile Co. Case 26-CD-77
June 16, 1971
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On January 27, 1971, the National Labor Relations
Board issued its Decision and Determination of Dis-
pute in this proceeding,' finding, inter alia, that there
was reasonable cause to believe that a violation of Sec-
tion 8(b)(4)(D) of the National Labor Relations Act, as
amended, had occurred. The Board further found that
the Employer had not agreed to a voluntary method of
settlement in connection with the work assignment dis-
pute, as Respondent contended, and that the Board was
therefore not precluded from making a determination
of the merits of the dispute within the meaning of Sec-
tion 8(b)(4)(D) and 10(k) of the Act. The Board then
decided that tilesetter employees of Shelby Marble &
Tile Co., who are represented for collective-bargaining
purposes by Bricklayers, Stone Masons, Marble Ma-
sons, Tile Setters and Terrazzo Workers Local Union
No. 1 of Tennessee are entitled to perform the work in
dispute, rather than bricklayers represented by Brick-
layers, Stone Masons, Marble Masons, Tile Setters and
Terrazzo Workers Local Union No. 1 of Tennessee.
Thereafter, on February 17, 1971, Respondents filed
motion for leave to supplement the record and petition
for rehearing. In support of their motion, Respondents
contend that the notice of hearing should be quashed
on the ground that all parties agreed to submit the
disputed involved herein to the executive board of
Bricklayers, Masons and Plasterers International
Union of America for a final and binding decision.
Respondents argue that an exhibit identified as Union
Exhibit 2 was never formally received in evidence due
to Respondents' inadvertent error, and request that
Union Exhibit 2 be formally received in evidence. Re-
spondents also argue that a letter from the Employer
to Respondent International's executive board, dated
May 18, 1970, a copy of which is attached to Respond-
ents' motion papers as a supplemental exhibit, will as-
sist the Board in its determination of the facts of this
case, and request that Respondents' supplemental ex-
hibit be received in evidence. In support of petition for
rehearing, Respondents contend that the Board misap-
prehended Respondents' arguments and that the
188 NLRB No. 15.
Board's findings and conclusions are contrary to the
facts of the case. Petition for rehearing should be
granted, Respondents conclude, and upon rehearing.
the Decision should be vacated and the notice of hear-
ing quashed. The Employer has filed a statement in
opposition to Respondents' motion and petition.
Pursuant to Section 3(b) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board has delegated its powers in connection with this
case to a three-member panel.
The Board has considered the Decision and Deter-
mination of Dispute, Respondents' motion and peti-
tion, the Employer's statement in opposition, and the
entire record in this case, and makes the following
findings:
It is apparent from the record before us that Union
Exhibit 2 was properly identified at the hearing but was
never offered due to Respondents' inadvertent error.
We shall, accordingly, grant Respondents' motion for
leave to reopen the record to permit the receipt of an
exhibit identified as Union Exhibit 2, and we shall order
that Union Exhibit 2 be made part of the record in this
proceeding.
With regard to the May 18 letter, the Board's Rules
and Regulations, Series 8, as amended, provide in Sec-
tion 102.48(d) that, inter alia, "Only newly discovered
evidence, evidence which has become available only
since the close of the hearing, or evidence which the
Board believes should have been taken at the hearing
will be taken at any further hearing." Respondents do
not contend that the letter offered as a supplemental
exhibit is a newly discovered or was unavailable at the
hearing, and there is no suggestion in the record that
the Hearing Officer declined to receive the proffered
supplemental exhibit in the course of the hearing. Re-
spondents neither identified nor offered the supplemen-
tal exhibit at the hearing. Moreover, the Decision and
Determination of Dispute does not rely on the nonex-
istence of the supplemental exhibit, as our dissenting
colleague suggests, but merely refers to the letter's ab-
sence from the record in the Decision's general discus-
sion of background facts. In any event, the supplemen-
tal exhibit does not, in our opinion, either expressly or
impliedly authorize Respondent International to make
a binding settlement of the dispute. Accordingly, we
shall deny Respondents' motion for leave to reopen the
record to place in evidence its supplemental exhibit,
and we shall order that Respondents' supplemental ex-
hibit be rejected as the evidence it seeks to present is not
newly discovered or previously unavailable.
We shall also reject Respondents' petition for rehear-
ing as lacking in merit.
191 NLRB No. 47
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
It is hereby ordered that an exhibit identified as
Union Exhibit 2 be, and it hereby is, made a part of the
record herein.
IT IS HEREBY FURTHER ORDERED that Respond-
ents' proffered supplemental' exhibit be, and it hereby
is, rejected as not presenting evidence newly discovered
or previously unavailable.
IT IS HEREBY FURTHER ORDERED that Respond-
ents' petition for rehearing be, and it hereby is, denied
as lacking merit.
CHAIRMAN MILLER, dissenting:
The majority refuses to permit Respondents ' motion
for leave to place a letter in evidence at this time be-
cause it was available at the time of the hearing in this
proceeding. In the usual situation I would agree with
this result, but here we have the unusual fact that we
issued a decision which expressly relies on the nonexist-
ence of the proffered letter. We in effect raised the issue
with which we are now faced and I would, in conse-
quence, grant the Respondents' request to place the
letter in evidence. Furthermore, assuming the letter
were properly authenticated, it would warrant in my
opinion a finding that the Employer had agreed to a
private resolution of the dispute and, thus, require that
the notice of hearing in this case be quashed.