Carpenters District Council of Kansas City

National Labor Relations Board - Board Decisions

Aug 15, 1969

178 N.L.R.B. 119 (N.L.R.B. 1969)

CARPENTERS DISTRICT COUNCIL OF KANSAS CITY
Carpenters District Council of Kansas City And
Vicinity, AFL-CIO and Builders' Association of
Kansas City. Case 17-CC-242
August 15, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On May 25, 1966, the National Labor Relations
Board issued its Decision and Order in the
above-entitled proceeding,' finding that Respondent
Union violated Section 8(b)(4)(i ) and (ii )( B) of the
Act. Thereafter, the Board filed a petition for
enforcement of the Order with the United States
Court of Appeals for the Eighth Circuit' The Court
found that where the primary object of the strike is
the preservation of traditional union work
subcontracted away by the employer , such pressure
is not proscribed under Section 8(b)(4)(B). It
therefore vacated the Board ' s Order and remanded
the case to the Board to take evidence as to contract
rights and area practice relating to the work
assignment.
On April 14, 1969, Trial Examiner Herbert
Silberman issued his Supplemental Decision,
attached hereto, finding that carpenters had no right
based on contract or area practice to be included in
the crews doing precast concrete installation work
on a subcontract basis. Thereafter , Respondent filed
exceptions to the Trial Examiner ' s Decision and a
supporting 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
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the Trial
Examiner ' s Supplemental Decision , the exceptions,
the briefs , and the entire record in this case, and
hereby adopts the findings,' conclusions, and
recommendations of the Trial Examiner.
'158 NLRB 1101
'N L R B v. Carpenters District Council of Kansas City and Vicinity.
AFL-CIO, 398 F 2d 1 l (C A 8).
'On the entire record, we conclude that the evidence is insufficient to
support the Union' s claim that carpenters customarily participated in the
installation of either precast wall panels or other precast concrete
fabrications in the Kansas City area . Accordingly, we reaffirm our
previous Decision finding that the Union was engaged in activity
constituting a secondary boycott in violation of Sec 8(b)(4)(i) and (ii)(B) of
the Act.
ORDER
119
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent, Carpenters District
Council of Kansas City and Vicinity, AFL-CIO, its
officers, agents, and representatives, shall take the
action set forth in the Board's Order of May 25,
1966.
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
HERBERT SILBERMAN , Trial Examiner: Heretofore the
Board issued a Decision and Order in this proceeding
which is reported at 158 NLRB 1101. Thereafter, the
United States Court of Appeals for the Eighth Circuit
entered an opinion' setting aside the Board's Order and
remanding the case to the Board for further proceedings.
In accordance therewith, on November 25, 1968, the
Board issued an order reopening the record and
remanding proceeding to Regional Director for further
hearing. The order directs the further hearing to be held
before a Trial Examiner "on the contract rights existing
and the area practice relating to the work assignment"
and further directs the Trial Examiner to prepare and to
serve upon the parties a Supplemental Decision containing
findings of fact upon the evidence received, conclusions of
law, and recommendations. Pursuant thereto, a further
hearing in this proceeding was held on January 28 and 29,
1969, in Kansas City, Missouri. All parties were
represented thereat by counsel. The parties waived the
right to present oral argument at the close of the hearing.
Although permission to file briefs was given the parties,
no briefs were filed.
Upon the entire record made at the supplemental
hearing, and from my observation of the witnesses, and
upon the proceedings heretofore had in this case, I make
the following:
Findings of Fact
The issue presented upon this remand is whether the
Respondent has a supportable claim or "right based upon
contract or area practice"2 that a carpenter should be
included as a member of building construction crews
engaged in the installation of precast concrete wall panels
or other precast concrete fabrications in the Kansas City
area.
The only relevent collective-bargaining agreement is
between the Builders' Association of Kansas City and the
United Brotherhood of Carpenters and Joiners of
America, District Council of Kansas City and Vicinity,
AFL-CIO. This agreement contains no clause which
recognizes any right or claim on the part of the
Carpenters for the work here in issue. Counsel for the
Respondent stated at the hearing, "We are not claiming
this work under any specific provision of the agreement
with the Builders' Association."
'N.L R B v Carpenters District Council of Kansas City and Vicinity,
AFL-CIO, 398 F.2d 11.
'N L.R.B. v. Carpenters District Council of Kansas City and Vicinity,
AFL-CIO , supra at 14
178 NLRB No. 17
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent and General Counsel adduced oral
testimony and introduced substantial documentary
evidence in support of their respective conflicting positions
regarding the area practice. My findings stated below are
based upon a review of all the documents received in
evidence and upon consideration of the oral testimony
given at the hearing, particularly the testimony of William
W Hutton, who has been managing director of the
Builders' Association of Kansas City for about 23 years
and who impressed me as having given a fair and unbiased
description of the developments in the Kansas City area
regarding the assignment of the work which is the subject
of this inquiry.'
The use of precast concrete for the construction of
buildings in the Kansas City area began about 1950. At
the outset such fabrications could not be purchased,
therefore, they were made on the jobsites by the general
contractors. These fabrications, which are heavy, usually
were tilted into position. As a result, the term "tilt-up" is
applied to describe precast concrete that is formed at the
jobsites.' During this early period the general contractors
used their regular crews to fabricate and to install the
tilt-ups. Most such work was then done by carpenters
although laborers were used to pour the concrete.
According to Hutton, after several jurisdictional disputes
arose the Builders' Association "called all the crafts
together and . made an assignment that had some
agreement from the unions' [because of their] acquiesence
.... That assignment has remained . . . ever since." The
assignment of tilt-up work was as follows:
The work of hooking on to, installing in place and
unhooking from these reinforced steel and concrete
slabs used for walls was assigned to members of the
iron workers union.
The work of aligning, leveling and placing of these
reinforced steel and concrete walls was assigned to
members of the carpenters union.
The work of pouring and handling of panels in the
casting area as well as the customary servicing of
mechanics was assigned to laborers.'
About 1957 a number of firms began manufacturing
precast products at their shops or yards and selling them
to builders in the Kansas City area. It became the practice
of such firms to subcontract the installation of the precast
concrete fabrications to heavy-haul contractors or stone
contractors, who employed primarily ironworkers and to a
lesser extent teamsters and engineers to handle their
normal work. When these subcontractors began to do
precast concrete installations they continued to use the
same crews, which did not normally include any
'As none of the parties submitted briefs I cannot know what specific
contentions they might make with respect to the documents received in
evidence or the oral testimony given at the hearing I perceive no value,
and I believe it would unduly burden this Decision , were I to set forth and
discuss the many possible arguments that could be advanced in support of
their respective positions I have no way of knowing, in the absence of
briefs, which , if any, of these arguments would be made I find no
significant conflict in the testimony given by the various witnesses at the
reconvened hearing and none of the documents introduced in evidence,
subject to the explanations given at the hearing, conflict in any substantial
way with the findings of fact set forth in this Supplemental Decision
'James Owen Mack , now retired , but formerly a president of
Respondent and a general executive board member of the Brotherhood of
Carpenters and Joiners of America, testified that tilt-ups "are formed on
the floor with wood around them and they are hooked on and raised up by
cables and a crane . Then they have braces on the side where they are lined
up afterwards with the wall "
'Other crafts, such as bricklayers and roofers , from time to time, made
claims to precast concrete installation work.
carpenters Most of these installation jobs took only 3 to
4 hours to complete. However, carpenters were used on a
few, larger jobs such as where the precast concrete
installations might be done over a period of 1 or 2
months.`
Hutton further testified, without contradiction, that in
regard to the assignment of work "a real clean line of
demarcation [exists] between tilt-up work, on the one
hand, and other types of precast work, on the other "
With exceptions created by reason of occasional
pressure by one union or another, the practice regarding
the installation of precast concrete fabrications in the
Kansas City area has been for the firms doing the
installations to use the same crafts as compose their
normal work crews. Thus, carpenters are used in the
installation of tilt-ups because these fabrications are made
and installed on the jobsites by the general contractors
who normally employ carpenters. Other precast concrete
fabrications are usually installed by heavy-haul or stone
(masonry) subcontractors who customarily do not employ
carpenters and, therefore, have not been using carpenters
in their crews to do precast concrete installations.
The work which is the subject of the dispute in this case
involve the installation of precast concrete fabrications by
masonry subcontractors and do not involve any tilt-ups.
Contrary to Respondent, I find that there has been no
established practice in the Kansas City area that a
carpenter will be included in the crews of such
subcontractors when they make precast concrete
installations. The practice has been to the contrary,
namely, for the most part, carpenters have not been
included in crews which have done precast concrete
installation work on a subcontract basis.
Contrary to Respondent, I find that the evidence
adduced at the hearing herein does not establish any
"right based upon contract or area practice" that a
carpenter should be, or should have been, included in the
crews employed by the masonry subcontractors to work
`Respondent introduced in evidence a letter from William W Hutton to
R J Mitchell , Chairman National Joint Board for Settlement of
Jurisdictional Disputes , dated August 29, 1961, in which Hutton discusses
the history of precast concrete work in the Kansas City area and, among
other things, states
In the years 1957 and 1958, two or three firms started manufacturing
precast products in Kansas City, and it became their practice to sub out
the installation of same to heavy haul firms in this area As the Board
knows, heavy haul companies are basically employers of teamsters and
iron workers , and to a large extent these heavy haul companies then
began to use iron workers in the installation of this precast material
The big majority of precast beam jobs are those jobs of three or four
hours duration and were started and over before carpenters could make
a claim Thus, the trend away from split crews [the reference here is to
split crews used for tilt -up work ] has developed the last two or three
years to the present practice The present practice and that of the last
two or three years has been that all tilt-up work has, almost without
exception, been done with split crews of carpenters and iron workers.
Precast channel work has tended more toward iron workers , and the last
two years iron workers have in fact done the big majority of same
However, on larger jobs , carpenters have made an issue and gotten in on
part of the work On precast column and beams which are primarily
erected by four heavy haul companies , iron workers have been doing
large majority of the work. Of the four heavy haul companies who are
erecting precast columns and beams, three of them today are using iron
workers exclusively One of them is using carpenters in the crew on
larger jobs
Carpenters have been very upset over this trend of the last two or
three years and admitting they cannot keep up with the setting of the
occasional precast beam on small jobs, have been partially ignoring the
same but are constantly advising the Association that they expect to get
their half of the larger jobs
CARPENTERS DISTRICT COUNCIL OF KANSAS CITY 121
on any of the three jobs which are the subject of the
complaint in this case.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case , I make the following-
Supplemental Conclusions of Law
Carpenters District Council of Kansas City and
Vicinity , AFL-CIO, has no right based upon contract or
area practice to insist upon or to take action to compel
Ralph H . McClain or Weldon B. Royse Masonry and
Waterproofing Co., Inc., or any other person or firm
which is engaged in the installation of precast concrete
fabrications in the Kansas City area on a subcontracting
basis, to employ at least one carpenter in each installation
crew, or to exert pressure by work stoppages or other
means upon Winn-Senter Construction Company, D. F.
Cahill Construction Company, or Sharp Brothers
Contracting Company, or any other general contractor in
the Kansas City area, to force any subcontractor to
employ at least one carpenter in each crew used for the
installation of precast concrete fabrications.
RECOMMENDED ORDER
Upon the foregoing findings of fact and supplemental
conclusions of law and upon all the proceedings heretofore
had herein, I recommend that the Order heretofore issued
by the Board in this case shall be reissued.