Bricklayers Union Local 29

National Labor Relations Board - Board Decisions

Jan 5, 1976

221 N.L.R.B. 1337 (N.L.R.B. 1976)

BRICKLAYERS UNION LOCAL 29 1337
Bricklayers, Masons and Plasterers ' Union Local 29,
Bricklayers, Masons and Plasterers ' International
Union of America, (AFL-CIO) and J. E. Hoetger
and Company. Case 7-CC-869
January 5, 1976
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On September 10, 1975, Administrative Law Judge
Almira Abbot Stevenson issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief, and
the Respondent filed a brief supporting the Decision,
conditional cross-exceptions to the Decision, and a
brief in support thereof.'
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 her 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 complaint herein be, and it
hereby is, dismissed.
1 On November 24, 1975, the General Counsel filed with the Board a
motion to strike footnote 2 from the Respondent's brief. Subsequently, the
Respondent filed an answer to said motion . In his motion, the General
Counsel contends that footnote 2 states as a fact certain testimony allegedly
adduced at another proceeding . Inasmuch as the transcript from that
proceeding was not introduced into evidence, and as the record before the
Administrative, Law Judge in this case fails to establish the assertions in fn.
2, the General Counsel's motion is hereby granted.
DECISION
Statement of the Case
ALMIRA ABBOT STEVENSON, Administrative Law Judge:
This case was heard in Detroit, Michigan, July 21 and 22,
1975. The charge was filed May 6 and served May 7, 1975;
the complaint was issued May 22, 1975.
The issues are whether the Respondent Local 29 by
statements of its agent, Robert Conaway, to Jon Hoetger,
president of the Charging Party general contractor,
threatened Hoetger, and whether by its picketing the
Respondent engaged in, and induced individuals employed
by Hoetger and its subcontractors including Robovitsky
Masonry Contractors, Inc., to engage in a strike, and
221 NLRB No. 227
coerced Hoetger and its subcontractors with an object of
forcing them to cease doing business with Hawkins
Masonry, Inc., in violation of Section 8(bX4)(i) and (ii)(B)
of the National Labor Relations Act, as amended; or
whether Hoetger and Hawkins were joint employers, and
Robovitsky was an ally of Hawkins.
For the reasons given below, I conclude that the
Respondent Local 29 did not violate the Act as alleged.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the oral arguments presented by the General Counsel and
the Respondent and of the brief filed by the Respondent, I
make the following:
FINDINGS OF FACT
and
CONCLUSIONS OF LAW
1. JURISDICTION
J. E. Hoetger and Company, the Charging Party, is a
Michigan corporation with principal offices in Farmington,
Michigan; it has been engaged pursuant to a contract with
the City of Pontiac as a general contractor in the
construction of a community center in Pontiac, Michigan,
herein called the Center jobsite. Hoetger subcontracted to
various subcontractors, including the following, the perfor-
mance of work at the Center jobsite: Hawkins Masonry,
Inc., Bumler Heating Co., Dan Call Electric Co., and John
Robovitsky Masonry Contractors, Inc. During the fiscal
year ending May 1, 1975, Hoetger and its subcontractors
purchased and caused to be delivered at the jobsite
construction goods and materials valued in excess of
$100,000, of which in excess of $50,000 were delivered to
the Center jobsite from points outside Michigan and/or
delivered to the Center jobsite by other enterprises located
in Michigan each of which had received said goods and
materials directly from points outside Michigan. The
Respondent admits, and I conclude, that Hoetger, the
Charging Party, is an employer engaged in commerce or in
an industry affecting commerce within the meaning of
Sections 2(2), (6), and (7), and 8(b)(4) of the Act. The
Respondent also admits, and I conclude, that Hawkins
Masonry, Inc., Bumler Heating Co., Dan Call Electric Co.,
and John Robovitsky Masonry Contractors, Inc., are
engaged in the building and construction industry and are
employers engaged in commerce or in an industry affecting
commerce within the meaning of Section 8(b)(4) of the Act.
I further conclude that it will effectuate the policies of the
Act to assert jurisdiction in this proceeding.
II. LABOR ORGANIZATION
The Respondent admits, and I conclude , that it is a labor
organization within the meaning of Section 2(5) of the Act.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts 1
The Charging Party, Hoetger, is wholly owned by its
president, Jon Hoetger, with a majority of the stock, and
his father. It has been in business as a general contractor
since 1973. The only employees employed by Hoetger at
the Center site are carpenters, under a collective-bargain-
ing agreement with the Carpenters District Council, and
laborers under a collective-bargaining agreement with
Laborers International Union. Hoetger's contract with the
City of Pontiac to act as general contractor in the
construction of the Community Center, entitled "AIA
[Architects International Association] Standard Form of
Agreement Between Owner and Contractor," was dated
July 31, 1974.
Hoetger subcontracted to various companies including
Bumler Heating Co. and Dan Call Electric Co., such work
as structural steel, asphalt paving, cement, electrical,
elevators, and tile. Masonry work for the Center was
subcontracted to Hawkins Masonry Inc. by "Standard
Form of Sub-Contract Agreement" dated July 20, 1974. In
this contract, Hawkins agreed to furnish all labor, material,
and equipment necessary to perform the masonry work
described in the contract including brick cleaning, and to
promptly remove debris from the premises. This contract
contained inter alia printed-form provisions to the follow-
ing effect: Hawkins assumed exclusive liability for paying
"union benefits as determined by or pegged to each
employees [sic] base wage by virtue of existing and/or
future union agreements,"' but Hoetger reserved "the right
to escrow any funds available to insure that these payments
are made and deduct same from this contract." Hawkins
agreed to provide "adequate supervision of all parties in his
employ . . . to insure that said work is properly per-
formed," and that the "Owner, Architect, Engineer, and/or
Contractor [Hoetger] shall be the sole determination of the
adequacy of said supervision," and if Hawkins failed to do
so, Hoetger could cancel the contract. Hawkins agreed to
employ only "workers affiliated with the Building Trades
Union(s) under the jurisdiction of the American Federa-
tion of Labor."
Hawkins employed bricklayers on the jobsite under a
collective-bargaining agreement with the Respondent
Local 29, which is a Building Trades Union of the
American Federation of Labor. On February 6, 1975,
Local 29 struck Hawkins for failure to pay its employees'
fringe benefits required by the collective-bargaining agree-
ment. At that time Hawkins ceased its operations at the
site, having completed almost 80 percent of its work, and
having been paid $64,800 of its $91,000 contract. Hoetger
held $7200 retainage against Hawkins. Hawkins left 1500
brick as well as some cement block and mortar on the site
premises, but not enough to complete the masonry work.
i Except where specifically referred to, the facts are undisputed
2 Where there are contradictions between accounts given by Hoetger and
Conaway as to conversations between them , I rely on Hoetger's Conaway's
memory did not appear to be as accurate as Hoetger's, and his demeanor
was that of one more prone to temper truth with self-interest
3 The Hoetger-Robovitsky contract was never reduced to writing, the
In late February, Robert Conaway, financial secretary
and business manager of the Respondent Local 29,
telephoned President Jon Hoetger and told him the Union
had shut Hawkins down for not paying fringe benefits;
that Hoetger as the general contractor was ultimately
responsible for the payment of the fringes; and that no
masonry work was to be done and no members of the
Union would be allowed to work on the job until the
fringes were paid.2 On March 5, 1975, Hoetger canceled its
subcontract with Hawkins, and Hawkins went out of
business. On April 1, 1975, Hoetger entered into a labor-
only contract with Robovitsky Masonry Contractors, Inc.,
which also 'had a collective-bargaining agreement with the
Respondent Local 29, to complete the masonry work,
including laying 3,200 block and 2,000 brick and doing
patching and repairs, at the Center. Robovitsky was to be
paid $6,000.3 Hawkins' supplier confiscated the brick
which Hawkins left on the jobsite and Hoetger had to pay
the supplier $1,500 for it. Hoetger used the Hawkins
retainage money in completing the work, subsequently
subcontracting the brick cleaning to another company.
Robovitsky began work, using materials left by 'Hawkins.
Local 29 Business Manager Conaway heard in late April
that there were bricklayers working on the job; and, on
April 30, 1975, he telephoned Jon Hoetger again and asked
him if it were true. Hoetger said it was. Then, according to
Hoetger's credited testimony,
Mr. Conaway told me that I couldn't do that. The
fringe benefits weren't paid, and that I as the general
contractor was responsible for those benefits. Mr.
Conaway further indicated to me that he was going to
go to the Building Trades Council and get authoriza-
tion to put a picket line on myjobsite . . . that that was
struck work.
On May 1, 1975, four pickets, including Conaway,
appeared at the site carrying signs reading, "Bricklayers on
strike against Hawkins Masonry for nonpayment of fringes
to bricklayers." When two sheetmetal workers employed
by Bumler Heating Co. arrived at the site, they went
through, worked about an hour putting their equipment in
a safe place. They then left, and Conaway thanked them
for honoring the picket line. That morning Hoetger job
superintendent Frank Dudlar told Conaway that Hawkins
had not been on the job since February 6 and that its
contract with Hoetger had been canceled. Conaway
responded that no work would be done on the job until the
matter of fringe benefits was settled, and he did not care
whether Hawkins or Hoetger paid as long as the fringes
were paid.4 Conaway asked Dudlar, a member of Carpen-
ters Union, if he would honor the picket line, and Dudlar
said yes.
On May 3, 1975,, Hoetger dispatched a mailgram
advising Local 29 that Hawkins Masonry's contract had
been canceled March 5, and that it had not been on the
evidence of its provisions is based on a memo entitled "Phoned in Bid
Proposal" made by Jon Hoetger, and the testimony'of Hoetger and John
Robovitsky
4 Reliance is placed on Dudlar-'s account rather than Conaway's in view
of my doubts about Conaway expressed above
BRICKLAYERS UNION LOCAL 29
jobsite since that date. Conaway replied by letter dated
May 7, 1975, to the effect that Local 29 considered the
masonry work at the project to be struck work.
As no employees of other subcontractors would cross the
picket line , no work was done on the Center site when
pickets were present - May 1, 5, and 6, 1975.
B. Conclusions
In his oral argument the General Counsel maintained
that this is an ordinary construction site secondary
picketing case - that there was- an ordinary general
contractor there with ordinary subcontractors and the
relationship between them was no different from those in
the vast majority of construction-site cases . In support of
this contention , the General Counsel places his reliance on
N.L.R.B. v. Denver Building and Construction Trades
Council, et al. [Gould & Preisner ], 341 U.S. 675 (1951).
Hawkins being the only employer with which the Respon-
dent Union had a dispute , it was the only primary
employer, the General Counsel continued , and Hoetger
was a neutral in that dispute ; and Hoetger 's subsequent
subcontracting of the remaining masonry work to Robovit-
sky without Hawkins' participation or knowledge did not
make Hoetger or Robovitsky allies of Hawkins or the work
performed by Robovitsky struck work. N.L.R.B. v.
Enterprise Association etc. Local Union No. 638, etc.
[Consolidated Edison Company], 285 F.2d 642 (C.A. 2,
1960), was cited . Based on Local 272, International
Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO (Miller & Solomon Construction Corp.),
195 NLRB 1063 (1972), enfd. 479 F.2d 920 (C.A.D.C.,
1973), the General Counsel pointed out that a union is not
entitled to picket a secondary general contractor to enmesh
it in the union 's dispute with a primary subcontractor over
its nonpayment of contractually obligated fringe benefits.
Finally, the General Counsel argued that the Respondent
violated the rules laid down in Sailors' Union of the Pacific,
AFL (Moore Dry Dock Company), 92 NLRB 547 (1950), by
common-situs picketing with signs naming Hawkins after
Hawkins had permanently abandoned the jobsite ; and, if
the Respondent did indeed have a primary dispute with
Hoetger, by failing to name Hoetger on its picket signs.
I agree with the General Counsel that the record shows
there is no relationship among Hawkins, Hoetger, and
Robovitsky based on common ownership or management,
and that the kind of supervision over the subcontractors'
work exercised by Hoetger through its superintendent
Dudlar did not compromise the separate independent-
contractor status of these companies . However, I, am
persuaded that that status was compromised by conduct
which fell within the rule of Local 363, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Roslyn Americana Corp.), 214 NLRB
No. 129 (1974), and that the cases relied on by the General
Counsel which dealt with truly independent contractors are
therefore inapposite.
In Roslyn, the general contractor (Contractor) included
in its subcontracts provisions whereby the subcontractors
agreed that all labor employed by them would "be
agreeable to the Contractor and other trades employed" on
the site, and that the Contractor could require the
1339
subcontractors to dismiss - any workmen whom the Con-
tractor deemed "incompetent , improper , or a hindrance to
the progress of any of the work " on the site and not
reemploy them without permission of the Contractor. The
Board held that those provisions gave the general contrac-
tor a sufficient degree of control over the assignment of the
work in issue that the general contractor could not be
considered a neutral in a dispute between the union and
one of the subcontractors for purposes of Section
8(b)(4)(B), but was a joint employer.
I cannot distinguish the instant case from Roslyn in this
respect . Here, Hoetger's subcontract agreement with
Hawkins provided that Hawkins could employ only
workmen affiliated with the Building Trades Unions under
the jurisdiction of the American Federation of Labor.
There is nothing in this contract provision between two
employers which is alleged or found to be unlawful , but the
practical effect was that Hoetger inserted itself into the
labor relations of Hawkins in a very basic area by
determining that Hawkins ' employee complement must
consist of members of certain unions only , and that
members of other unions and nonunion employees must
not be employed by Hawkins . It follows that by this
provision Hoetger maintained control over the identity of
Hawkins' work force in a manner equivalent in principle to
that in Roslyn.
Nor was Hoetger powerless to resolve the dispute in this
case over Hawkins' default on the payment of fringe
benefits which Local 29 Business Manager Conaway
estimated to amount to about $8 ,000. Indeed , Hoetger had
also contractually inserted itself into Hawkins' labor
relations in this very matter. Thus, in the subcontract
Hoetger had reserved to itself the right to escrow any funds
available to insure that fringe benefits were paid and to
deduct such payments from the contract. Moreover, it
seems possible that Hoetger had in escrow and undis-
bursed on its contract with Hawkins funds from which it
could have paid fringes as it had reserved the right to do. If
Hoetger had opted to exercise its prerogative in this matter,
the dispute might have been resolved.
I am not aware that subcontract provisions such as those
discussed above are "ordinary," as the General Counsel
contends, or that they are characteristic of the established
business relationship between independent contractors
referred to by the Supreme Court in the Denver case. If
they are, there is no evidence in this record to that effect.
The result of Hoetger 's being a joint employer of
Hawkins' employees was that Hoetger was a primary
employer in farming out the struck work to Robovitsky
and Robovitsky was an ally within the rule of N. L.R.B. v.
Business Machine and Office Appliance Mechanics Confer-
ence Board, Local 459, International Union of Electrical,
Radio & Machine Workers, CIO (Royal Typewriter Co.), 228
F.2d 553 (C.A. 2, 1955). In these circumstances, the
Respondent was not proscribed from bringing the econom-
ic pressure of picketing to bear on Hoetger and Robovitsky
at the Center site where both these Companies were
engaged in operations . Nor were Moore Dry Dock
standards otherwise violated . The picket signs truthfully
pinpointed the nature of the dispute, and although it
named only an absent primary employer, there was no
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appeal to employees of neutral subcontractors to leave
their work and shut the entire job down. The evidence
indicates that the Respondent Union had no object other
than that the fringe benefits be "paid by either' Hawkins or
Hoetger and that Robovitsky be removed from the struck
masonry work until they were paid.
Accordingly, I conclude' that neither Conaway's state-
ments to Hoetger nor the picketing violated Section
8(b)(4)(B) of the Act, and I shall recommend that the
complaint be dismissed.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDERS
The complaint is dismissed.
5 In the event no exceptions are filed as provided by Sec. 102.46 of the 102.48' of the Rules and Regulations , be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board , the findings, its findings, conclusions, and Order , and all objections thereto shall be
conclusions , and recommended Order herein shall, as provided in Sec deemed waived for all purposes