Carpenters, Local 433

National Labor Relations Board - Board Decisions

Mar 8, 1973

202 N.L.R.B. 297 (N.L.R.B. 1973)

CARPENTERS , LOCAL 433
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, Local No. 433 and Lippert
Brick Contracting, Inc. Case 14-CC-771
March 8, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On September 28, 1972, Administrative Law Judge
Thomas S. Wilson issued the attached Decision,
recommending that the complaint be dismissed.
Thereafter, the General Counsel and the Charging
Party filed exceptions and supporting briefs, and the
Respondent 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 to
the extent that they are consistent herewith.
The Administrative Law Judge found that Respon-
dent Carpenters did not violate Section 8(b)(4)(B) of
the Act when it engaged in a strike against Bauer, the
general contractor on a jobsite where its employees
and those of Lippert, a subcontractor, were em-
ployed. The Administrative Law Judge based this
conclusion on a finding that the Respondent's strike
against Bauer was a primary one for the reason that
it was seeking to preserve, and was protesting the
subcontracting to Lippert of, work which was
"clearly claimable" under its contract with Bauer.
We find merit in the General Counsel's exceptions to
the recommended dismissal of the complaint.
Bauer has a collective-bargaining contract with the
Carpenters covering its carpenters.' This contract
contains the subcontracting provision quoted in the
margin2 and Bauer had, prior to the events herein,
subcontracted unit work to subcontractors who
employed carpenters without protest by the Carpen-
ters. In February 1972, Bauer began work as the
general contractor to add five additional floors to the
i Art I, sec 3, of the contract provides
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 disman-
tling of all materials of wood, plastic , metal, fiber, cork and
composition , and all substituting materials
z Art VIII, sec 4, of the contract , not referred to by the Administrative
Law Judge, provides
Subcontracting-Unit Work
297
St. Elizabeth Hospital in Belleville , Illinois. In
March, it subcontracted to Lippert all the masonry
work on this project. Lippert employed bricklayers to
lay the haydite blocks.3
During April, Al Kraft, business representative of
the Carpenters asked Wolf, Bauer's superintendent,
if Lippert intended to hire carpenters to lay the
haydite blocks. Wolf replied that Bauer had no
control over who was going to do this work because
it had been subcontracted to Lippert and suggested
that Kraft find out from Lippert if Lippert intended
to use carpenters.
On May 24, 1972, after the temporary plywood
deck for the initial floor of the addition to the
hospital had been completed and while Bauer's
carpenters were laying out the deck for the position-
ing of the haydite blocks, which were being laid by
Lippert's bricklayers, Hassenbrock, the Respondent's
job steward, told Wolf that the carpenters would not
work on the same deck with the bricklayers because
they were doing work that belonged to the carpen-
ters. 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 Ken Lippert inquired as to the trouble,
Hassenbrock answered that Kraft had told him that
the carpenters were not allowed to work with the
bricklayers because the laying of haydite blocks was
the carpenters' work. Upon receiving assurances
from Hassenbrock that the carpenters were refusing
to do any of the layout work, Ken Lippert said,
"Well, that is fine . . . we will do it all." Soon
thereafter, Wolf asked Hassenbrock if the carpenters
would work on other areas of the project and the
latter said that 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, upon being told by Wolf that the
carpenters were going to walk off the job, asked
Hassenbrock what was going on. According to Ken
Lippert, he was told by Hassenbrock that he,
Hassenbrock, "felt that this haydite block was his
work and the other carpenters kind of said they
The territorial and occupational 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
3 The specifications in the subcontract to Lippert provided that the filler
tile used in the construction of concrete floors be made of either lightweight
concrete blocks, such as haydite blocks, or clay tile, also referred to as red
tile, and Lippert decided upon haydite blocks
202 NLRB No. 47
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreed with that and that they were going to go off
the job until we gave it to them."4 Lippert did not
reassign the work and nine of Bauer's carpenters
walked off the job. On May 25, 1972, Lippert filed
unfair labor practice charges alleging that Respon-
dent had violated Section 8(b)(4)(B) and (D) of the
Act.5 The carpenters returned to work on June 1,
1972.
While we agree with the Administrative Law Judge
that the Respondent induced and encouraged the
carpenters employed by Bauer to go on strike, we do
not agree with his conclusion that the strike was
primary and permissible because its object was to
protest Bauer's subcontracting of unit work which it
viewed as "clearly claimable" under its contract with
Bauer. On the basis of the facts recited above, we are
convinced that, though the strike was directed
against Bauer, the Carpenters was not in any real
dispute with Bauer over its subcontracting action,
but was primarily concerned with the fact that
Lippert had decided to hire bricklayers rather than
carpenters for the laying of haydite blocks. Thus, the
contract between the Carpenters and Bauer, even
assuming that the laying of haydite blocks was
covered thereby, contained no prohibition against
the subcontracting of unit work. Indeed, it was
sanctioned by the contract and Bauer had subcon-
tracted unit work on the instant project without
protest by the Carpenters. On those occasions,
however, as explained by Business Representative
Kraft, no problems were presented because the
subcontractors employed carpenters for the perform-
ance of the work, whereas Lippert did not. That this
is the critical difference as viewed by the Carpenters
in the subcontracting situations of unit work, but of
no significance under the Bauer-Carpenters contract,
is underscored by the fact that, when Bauer subcon-
tracted the work herein, Kraft's concern as expressed
to Wolf was whether Lippert intended to hire
carpenters to do this work. Thereafter, the Carpen-
ters requested such work from Lippert, threatened to
strike unless carpenters got it, and then, when the
work was not forthcoming, called the strike against
Bauer.
It thus appears to us that the Respondent has
embroiled Bauer in a primary dispute it had with
Lippert, the object of the strike being to exert
pressure on Bauer to compel Lippert to hire
4 Also not mentioned by the Administrative Law Judge is this testimony
by Lippert However , it is neither denied nor contradicted and no reason
appears for not fully crediting it
5 On this date , the Board is issuing its Decision and Determination of
Dispute in Case 14-CD-428, involving the same parties and the same
disputed work. United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, Local No 433 (Lippert Brick Contracting, Inc), 202 NLRB No
46 Upon finding probable cause that the Respondent herein violated Sec
8(b)(4)(D ) of the Act , the Board is awarding the laying of the haydite blocks
carpenters or to cancel its subcontract with Lippert.
By striking Bauer for such an unlawful object, we
find that the Respondent has violated Section
8(b)(4)(i) and (ii)(B) of the Act .6
The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act. Having found that the Respondent has
engaged in unfair labor practices in violation of the
Act, we shall issue an Order designed to effectuate
the policies of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, Local No. 433, its officers,
agents, and representatives, shall:
1. Cease and desist from engaging in, or inducing
or encouraging any individual employed by Bauer
Brothers Construction Co., Inc., or by any other
person engaged in commerce or an industry affecting
commerce, to engage in, a strike or a refusal in the
course of his employment to perform any services;
and from threatening, coercing, or restraining the
above-named employer or any other person where, in
either case, an object thereof is to force or require the
above-named employer or any other person to cease
doing business with Lippert Brick Contracting, Inc.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix." 7
Copies of said notice, on forms provided by the
Regional Director for Region 14, after being duly
signed by Respondent's representative, shall be
posted by Respondent 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
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Furnish said Regional Director for Region 14
signed copies of the aforesaid notice for posting by
the above-named companies, these companies will-
ing, at places where they customarily post notices to
their employees.
to the bricklayers employed by Lippert who are members of the Bricklayers.
6 See Local No 825, International Union of Operating Engineers,
AFL-CIO (Burns & Roe, Inc ), 162 NLRB 1617, 1620-22, affd . 400 U.S.
297
7 In the event that this 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
CARPENTERS, LOCAL 433 - 299
(c) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps the Respondent has 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 engage in a strike, or induce or
encourage any individual employed by Bauer
Brothers Construction Co., Inc., or any other
person engaged in commerce, or in an industry
affecting commerce, to engage in a strike or a
refusal in the course of his employment to
perform any services; nor will we threaten,
coerce, or restrain the above-named employer, or
any other person, where in either case, an object
thereof is to force or require the above-named
employer, or any other person, to cease doing
business with Lippert Brick Contracting, Inc.
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 concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office , 210 North 12th Boulevard, Room
448, St . Louis, Missouri 63101, Telephone 314-622
-4167.
DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Administrative Law Judge:1 Upon a
charge duly filed on May 25, 1972, by Lippert Brick
Contracting, Inc., herein referred to as Lippert or as the
Charging' Party, the General Counsel of the National
1 A title change only
2 This term specifically includes the attorney appearing for the General
Counsel at the heanng
3 The complaint actually reads "Section 8(b)(i)(ii)(B)." In accordance
Labor Relations Board , herein referred to as the General
Counsel2 and the Board , respectively , by the Regional
Director for Region 14 (St. Louis , Missouri), issued its
complaint thereon dated June 12, 1972 , against United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, Local No . 433, herein referred to as Local 433
or the Respondent.
The complaint herein alleged that Respondent has
engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8(b)(i)
and (ii)(B)3 and Section 2(6) and (7) of the Labor
Management Relations Act, 1947, as amended, herein
referred to as the Act.
Respondent duly filed its answer admitting certain
allegations of the complaint but denying the commission of
any unfair labor practices and particularly that Respon-
dent had any dispute with the Charging Party (Lippert) as
alleged in the complaint.4
Pursuant to notice the hearing hereon was held in St.
Louis, Missouri , on July 17 and 18 , 1972, before me. All
parties appeared at the hearing , were represented by
counsel , and were afforded full opportunity to be heard, to
produce and cross-examine witnesses , and to introduce
evidence material and pertinent to the issues. At the
conclusion of the hearing oral argument was waived. Briefs
were received from General Counsel , Charging Party, and
Respondent on August 29, 1972.
Upon the entire record in the case and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF CHARGING PARTY
The complaint alleged, the answer admitted, and I
hereby find that:
Lippert Brick Contracting, Inc., is, and has been at all
times material herein, a corporation duly organized under,
and existing by virtue of, the laws of the State of Delaware.
At all times material herein Lippert has maintained its
business office and place of business at 906 Centerville
Avenue in Belleville, Illinois. Lippert is, and has been at all
times material herein, engaged in business as a brick and
masonry contractor. During the year ending December 31,
1971, which period is representative of its operations
during all times material hereto, Lippert, in the course and
conduct of its business operations, purchased and caused
to be transported and delivered at its Belleville, Illinois,
place of business, supplies, machinery, and building
materials and other goods and materials valued in excess of
$50,000, of which goods and materials valued in excess of
$50,000 were transported and delivered to its place of
business in Illinois, directly from points located outside the
State of Illinois.
Bauer Brothers Construction Co., Inc., herein referred to
as Bauer, is, and has been at all times material herein a
corporation duly organized to do business in the State of
Illinois. At all times material herein, Bauer has maintained
with the assumption of all parties at the hearing, I hereby order the
complaint amended to accord with the above.
4 This pleading will be further elucidated hereinafter.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an office and place of business at 424 Lebanon Avenue in
Belleville, Illinois. Bauer is, and has been at all times
material herein, engaged in the construction business as a
general contractor. During the year ending December 31,
1971, which period is representative of its operations
during all times material hereto, Bauer, in the course and
conduct of its business operations, purchased and caused
to be transported and delivered at its Belleville, Illinois,
place of business building materials, supplies, and other
goods and materials valued in excess of $50,000, of which
goods and materials valued in excess of $50,000 were
transported and delivered to its place of business in Illinois
directly from points located outside the State of Illinois.
During the year ending December 31, 1971, Bauer
performed services valued in excess of $50,000, of which
services valued in excess of $50,000 were performed in and
for various enterprises located in States other than the
State of Illinois.
Accordingly, I find that Lippert and Bauer are now and
have been at all times material herein employers engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and are persons engaged in commerce or in
an industry affecting commerce within the meaning of
Section 8(b)(4)(B) of the Act.
II. THE RESPONDENT
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, Local No. 433, is a labor organization
within the meaning of Section 2(5) of the Act . It was also
admitted that the business agent of Local 433 was Alfred
Kraft and the steward on the job in question here was
Elmer Hassenbrock.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
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.
Acting upon an oral telephoned bid, Bauer entered into a
written subcontract dated March 8, 1972, with Lippert
which provided in pertinent part as follows:
Article 1. The subcontractor [Lippert] agrees to furnish
all material and perform all work as described in
Article 2 hereof for the construction of St. Elizabeth
Hospital, Belleville, Illinois for the Hospital Sisters of
the Third Order of St. Francis, hereinafter called the
owner, at Belleville, Illinois. In accordance with the
general conditions of the contract between the owner
and the contractor and in accordance with the
supplementary general conditions, the drawings and
specifications prepared by Berners Schober and Kelp,
310 Pine Street, Greenbay, Wisconsin 54301,
ter called the architect.. . .
Article 2. The subcontractor and the contractor agree
that the materials to be furnished and work to be done
by the subcontractor shall include MASONRY. In
accordance with drawings and Section 10 of the
specifications including Addenda I through 9.
Bauer Brothers Construction Co., Inc. (Bauer), was the
general contractor on a project to add five additional floors
to the existing St. Elizabeth Hospital in Belleville, Illinois.
Work began on the project about ' February 1, 1972.
Respondent and Bauer were admittedly bound by a
collective-bargaining agreement between Southern Illinois
'Builders Association (SIBA), of which Bauer was a
member, and the Tri-Counties Illinois District Council of
Carpenters with which Local 433 was affiliated.
This collective agreement contains the following perti-
nent clauses:
ARTICLE I
RECOGNITION AND SCOPE
BASE BID
ALTERNATE 1B
ALTERNATE IC
ALTERNATE ID
ALTERNATE IF
FILLER TILE
BASE BID
ALTERNATE III
ALTERNATE IC
It was agreed at the hearing that "Section 10" of the
specifications mentioned in article 2 of the subcontract had
to do solely with the masonry portion of the subcontract
and that the only mention of "Filler Tile" in the
Section 1 . Bargaining unit . The bargaining unit shall be specifications was to be found in paragraph 6 of section 5
comprised of all employees engaged in the work of the specifications providing in pertinent part as follows:
described in Section 3 of this Article. The territory 6. Filler Tile
covered by this agreement is as described in Section 4 (a) Furnish and install Filler Tile for floor slabs
of this Article. where scheduled.
CARPENTERS , LOCAL 433
Block shall be held in position by nailing. Nails shall be
cut off after stripping forms.
(b) Wood pans shall be installed in lieu of tile where
pipe spaces are required in Filler Construction ... .
(c) At contractor's option, Filler Tile may be clay tile
units in lieu of the lightweight concrete units specified
above... .
Whereas, Bauer was bound by the aforementioned
contract with Respondent, Lippert had union agreements
only with the Bricklayers Union, Laborers Union, and
Operating Engineers Union.
During 1 week in early April Carpenters Business Agent
Al Kraft made three visits to the St. Elizabeth project
where he saw and chatted with Bauer Superintendent Wolf
in the construction shack at the project.5 On his first visit
Kraft inquired as to what kind of filler and what kind of
forms Bauer was going to have for the slabs in the concrete
floor. Wolf answered that they were going to use filler
tile. He added that Bauer had subcontracted part of this
work to Lippert which might, depending upon the terms of
the subcontract which at that time Wolf did not have,
create a "problem."6 On the second visit, after again
mentioning this possible problem, Wolf got out the plans
of the project and showed them to Kraft. After looking at
the plans Kraft stated that in his view the work laid out in
the plans was -carpenters' work as the filler block was
taking the place of "something like a pan deck." Wolf
agreed that the filler was taking the place of a pan in
creating a form.7 Kraft stated that he was surprised that
Bauer had subcontracted this work as it was carpenters'
work and the carpenters were going to do it. Wolf
answered that he, Wolf, had no control over who was going
to do the work because that had been sublet to Lippert and
Lippert had to hire the men to do it. Wolf suggested that
Kraft see Lippert to find out if Lippert intended to hire
carpenters. Recognizing that he did have a problem over
who was going to do the work on the filler tile Wolf had
Project Manager Weiss come to the shack from the home
office. Upon Weiss' arrival, Kraft inquired, "How in hell
could you subcontract this work out?" He stated that the
carpenters should be doing the work because the haydite
block was taking the place of the pans that they had been
using before. He also mentioned the fact that in Spring-
fields the carpenters had been doing this work with the
haydite blocks. After some discussion Weiss acknowledged
that he "maybe made a mistake."9 Wolf suggested that
they ought to have a meeting and straighten this problem
out.
At the request of Bauer, SIBA, through its Executive
5 Neither Kraft nor Wolf was able to clearly differentiate between these
three conversations as they were all very similar.
6 Wolf obviously foresaw a problem arising in the event that Bauer has
subcontracted the "installation" of the filler tile to Lippert as provided in
par 6 of sec 5 of the specifications.
r Metal or wooden pans are frequently attached to the deck to make a
form for a concrete pour.
8 About 100 miles away
9 Weiss did not think that he had made this remark but his denial was
not convincing
to Kraft had given a copy of this letter to his steward on the St Elizabeth
job, Hassenbrock
301
Secretary Wayne Barber, Jr., called Bauer and Local 433 to
a meeting on May 4. Unbeknownst to Respondent, Barber
had also invited Lippert and Bricklayers Business Agent
Marion Mueller to the meeting. All four parties attended.
Barber opened the meeting by saying that it had been
called for the purpose of solving a jurisdictional problem
which had arisen. Ray Lippert, president of Lippert, then
stated that his men were going to lay the haydite block but
that Bauer's men would snap the lines, nail the bands to
the plywood deck, and then band the haydite block in
place. Kraft replied that under these conditions there was a
problem. He also provided those in attendance at the
meeting with a "To Whom It May Concern" letter from
the Evans Construction Co. stating that at two of its
projects in or near the vicinity of Springfield, Illinois, `"We
have installed 6 inch, 8 inch and 10 inch thick and 12 inch
wide light weight concrete filler tile between the concrete
floor joist which act as a form by using carpenters." 10
Barber then stated that apparently under these conditions
the persons present would not be able to solve the problem
confronting them and that he, therefore, was going to call
in the Unions' International representatives to a meeting.
Bauer's representatives there stated that he thought that
the work on the deck could be delayed until after such a
meeting of the International representatives could be held.
The meeting thereupon broke up.11
The crisis arrived on May 24 and before the Internation-
al representatives had been able to meet on the problem.
On May 24 the plywood deck for the first floor of the
new addition (actually the fifth floor of the building) had
been built and Bauer's carpenters had partially snapped
the lines necessary for the laying of the haydite block and
nailed the bands to the deck. That morning the haydite
block was raised to the plywood deck on cranes operated
by operating engineers employed by Lippert. And there-
upon bricklayers, also employed by Lippert, proceeded to
lay the haydite block on the bands already nailed to the
plywood deck. Upon seeing the Lippert bricklayers doing
this work, Carpenter Steward Hassenbrock complained to
Bauer Superintendent Wolf that, if the bricklayers were
going to do the carpenters' work, the carpenters would not
work on the same deck as the bricklayers.
Following Hassenbrock's announcement Wolf went over
to Kenny Lippert, Lippert's superintendent on the job, and
told him that he should go talk to Respondent's steward as
there was a problem over the laying of the haydite.12 When
Kenny Lippert inquired as to the trouble, Hassenbrock
answered that Kraft had told them that the carpenters were
not allowed to work with the bricklayers because the laying
of the haydite was carpenters work which the carpenters
wanted to do. Upon receiving assurances that the carpen-
11 Bricklayers Business Agent Mueller testified that during this meeting
Kraft had stated to Lippert, "You would do me a big favor if you'd give it
[the blocklaying] to me " Mueller was the only witness to so testify and he
had to be recalled to the stand by the Charging Party to give this testimony
Kraft denied making the statement . I credit Kraft's denial in large part
because Ray Lippert, to whom the remark allegedly was addressed , was not
called as a witness which raises an inference that his testimony would have
been adverse to the Charging Party's case.
12 A few days before Ray Lippert had informed Kenny Lippert that
Lippert was to lay the haydite but the carpenters would do the layout and
banding work.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ters were refusing to do any of the layout or banding under
the circumstances, Kenny Lippert said, "well, that is fine
... we will do it all."
Thereafter Wolf offered the carpenters work on another
portion of the project which Hassenbrock agreed to do.
However at noon Hassenbrock returned and informed
Wolf that the carpenters had decided that they would not
work on the project with the bricklayers laying the haydite
on the deck as that was carpenter work. The carpenters,
including Hassenbrock, thereupon left the project. The
strike was on. No pickets ever appeared. The carpenters
merely remained away from work.
The Lippert bricklayers thereupon proceeded to lay and
band the block as required by the specifications. On this
first floor the bricklayers cut several haydite blocks with a
masonry saw in order to conform the blocks to the exact
measurements required by the specifications.13
A couple of days thereafter Hassenbrock, on direct
orders from Kraft, reported back to work but Wolf had no
work for a single carpenter and, as he told Kraft, hesitated
to recall his carpenter foreman so as to have a necessary
team of carpenters for the reason that he did not wish to
put his foreman in the awkward position of having to
decide whether to work or not with the bricklayers. Hence
Wolf sent Hassenbrock home.
As heretofore found, on this first deck of the project the
Lippert bricklayers completed the work of snapping the
lines, nailing the bands to the deck, laying the haydite, and
banding the haydite into place prior to the concrete pour.
It was on this deck the Lippert bricklayers cut a few
haydite bricks with a masonry saw in order to conform the
haydite to the exact measurements of the specifications.14
On May 25 the charge in the present case was filed in
Lippert's name by attorneys for Lippert.
On June 1 Bauer's whole carpenter crew reported back
for work as Kraft had notified Bauer the night before that
the crew would do.
Since that time the work on the St. Elizabeth project has
proceeded without interruption and injust the manner Ray
Lippert had stated at the May 4 meeting it would be done.
The carpenters are snapping the lines, nailing the bands to
the plywood deck and, after Lippert's bricklayers lay the
haydite on the bands, the carpenters band the haydite
together and tighten the bands. Thereafter the cement for
the floor is poured. The work has continued in that manner
without interruption since the carpenters returned on
June 1.
B. Conclusions
General Counsel set forth the gravamen of his complaint
in paragraphs 6 and 7 thereof which read as follows:
6.
At all times since April 15, 1972, Respondent has had a
labor dispute with Lippert.
7.
In furtherance of its dispute with Lippert, Respondent,
commencing on or about May 24, 1972, engaged in a
strike against and refused to perform any services for
Bauer at St. Elizabeth's hospital annex project.
This pleading has the merit of being very succinct as well
as lucidly indicating the alleged secondary nature of
Respondent's strike.
However Respondent denied that it had any labor
dispute with Lippert. Instead Respondent contended that
its dispute was with Bauer and caused by the terms of its
collective-bargaining agreement with Bauer and was
strictly for a work preservation purpose under the terms of
that agreement.
At the hearing Respondent also stated that it had no
desire to reach the question of whether Respondent had
"induced or encouraged" its members to strike Bauer. In
this Respondent was wise because the facts presented here
indicate all too clearly that Respondent through Kraft, by
giving a copy of the Evan's Construction Company letter
to Job Steward Hassenbrock, and Steward Hassenbrock
both induced and encouraged the Bauer carpenters to
strike Bauer on May 24.
So the question involved here becomes: Do the facts
justify the pleading?
Actually the labor dispute here boiled down to a
question of who was to perform the work of laying the
haydite block: Carpenters employed by Bauer or bricklay-
ers employed by Lippert? Out of this molehill grows this
mountainous case.15
Respondent had a contract with Bauer which provided
in section 6 thereof, in substance, that all unit work must
be done by unit employees. Section 3 thereof defined unit
work as, in pertinent part, "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... .
It was upon this basis that, upon seeing the project plans,
Respondent Business Agent Kraft burst forth with, "how
in hell could [Bauer] subcontract this work?" as well as
claiming that work to be carpenters' work. In fact during
these conversations, as well as in his testimony , Bauer's
superintendent Wolf indicated agreement with Kraft's
remarks and even Bauer's Project Manager Weiss, who had
entered into this ill-fated subcontract, remarked that he
might have made "a mistake" in so doing.
On the other hand, the Carpenters had no contractual
relationship with Lippert and thus had no claim against
Lippert at all. Lippert did work clearly not included within
the Carpenter's jurisdiction. So, when Wolf, worried about
the possible problem as to who was going to do the work
required on these haydite blocks, suggested that Kraft
should see Lippert and find out if he intended to hire
carpenters on that job, Kraft did not see fit to do so. In fact
it cannot be questioned that the Carpenters never even
13 The masonry saw has not been required on any floor since then The exclusive symbol of the bricklayer trade.
specifications had been slightly relaxed 15 Of the nearly $2 million subcontract here involved only about
14 Although carpenters were said to be intelligent enough to operate a $100,000 was involved in the furnishing and laying of haydite blocks
masonry saw, and, in fact, had done so, that instrument seems to be an
CARPENTERS, LOCAL 433 303
spoke to Lippert about this employment matter or
anything else regarding the problem.
That, no doubt, is why SIBA called the meeting of May 4
to try to get the Respondent talking with Lippert and
possibly straightening out the problems caused by this
subcontract. Even there, despite the contrary testimony of
Bricklayers Business Agent Mueller 16 and SIBA Executive
Secretary Barber who expressed his opinion that he
"considered" that Kraft was speaking to Lippert at one
point during the meeting, the Respondent had nothing to
say during this whole period to Lippert. They had no
complaint against Lippert. Their complaint was that,
contrary to its agreement with Respondent, Bauer had
subcontracted out work belonging to the Carpenters under
that contract to Lippert.
In fact, as Superintendent Wolf appeared to know and to
concede, Bauer had in fact apparently subcontracted unit
work contrary to the terms of its contract with the
carpenters to Lippert. Wolf saw the problem. In fact, he
was the first one to recognize that this subcontract created
the problem. It was Wolf who called the problem to Kraft's
attention.
It appears to have been recognized on all sides at the
hearing that the building of forms on the plywood deck
prior to a concrete pour has been traditionally carpenters'
work regardless of whether these forms were made of
wood, metal, or even cardboard. Even prior to the time
that the lawyers got into the act here, Lippert recognized
this Carpenter jurisdiction because all he wanted from this
subcontract on "filler tile" was to lay the haydite block. He
wanted no part of the rest of the installation of the block.
It was a few days prior to May 4 when Ray Lippert
happily notified his son Kenny, who was Lippert's
superintendent on the job, that the subcontract had been
orally amended so that Bauer's employees were to snap the
lines and nail the steel bands to the deck, and, after the
Lippert employees had laid the haydite on those bands,
were to band the blocks so laid in place for the pour. In
fact, except when the carpenters left the project, that is the
way the work has been performed.
Originally it was the very indefiniteness of the terms of
the subcontract which confused. Nobody appeared to
know whether the item, "Filler Tile," in this subcontract,
with its incorrect reference to section 10 of the specifica-
tions, meant that Lippert was only to "furnish" the haydite
or whether, as the correct reference to paragraph 6 of
section 5 of the specifications indicated, Lippert was to
both "furnish and install" the haydite. If the former, then
the subcontract did not intrude on the unit work set forth
in the Carpenter-Bauer contract. If the latter, then
arguably at least, the subcontract would appear to remove
unit work from unit employees-and Wolf's problem
became real indeed.
As General Counsel and the Charging Party were quick
to point out, "haydite" block is not specifically mentioned
in the Carpenter-Bauer agreement. In fact, haydite, a
relatively new low weight product, had never before been
used in a concrete floor within the territorial jurisdiction of
Local 433. Hence, according to the aforementioned parties,
there was no precedent that haydite was included within
the aforementioned unit work definition of the agree-
ment.17
However it was admitted that in the plans for this project
the haydite blocks were being used for two purposes: (1) to
create a cavity or "void" in the cement thereby, due to the
lesser weight of the haydite block, lightening the weight of
the floor, and (2) creating joists of thicker concrete for the
purpose of holding up weight.
Traditionally carpenters have fastened metal or wooden
pans to the plywood deck prior to the cement pour for
exactly the same purposes: (1) to create weight reducing
"voids," and (2) to form joists. The only difference between
the use of the pans and the banded haydite blocks for these
purposes was that the pans were knocked out of the bottom
of the concrete floor after the cement had hardened
whereas the haydite blocks remained attached in the
cement, thus leaving the lower or underneath portion of
the floor flat and level instead of being convoluted as when
the pans were removed. Thus for the purpose of making
the forms, the banded haydite blocks constitute merely a
"substituting material" for the wood or metal pans. And
thus the work, even as Wolf and Weiss both apparently
saw it, was indeed, as phrased by Respondent's counsel,
"fairly claimable" by the Carpenters under the terms of its
contract with Bauer. Bauer, through both Wolf and Weiss,
recognized that this alleged contract violation in subcon-
tracting work fairly claimable for Bauer employees to
Lippert was the cause of the strike. Thus the strike was
addressed to the labor relations of the contracting
employer, Bauer, vis a vis his own employees. As such the
strike of May 24 was a primary strike. It also had a work
preservation purpose to it.
As the Board said in the recent case of Building Material
& Construction Teamsters Union Local No. 216, Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America and Bigge Drayage Company, 198
NLRB No. 130:
... thus, when the agreement is intended to
protect and preserve unit work it is primary and
permissible, whereas an agreement "tactically calculat-
ed to satisfy union objectives elsewhere" is secondary
and impermissible. The determination must be made
on the basis of all the attending circumstances.
Accordingly the facts here require a finding, which I here
make, that Respondent struck Bauer on May 24, 1972, over
a legitimate question of interpretation of the existing labor
agreement between these two parties for the purpose of
preserving work which was "clearly claimable" under the
interpretation of that agreement held by Respondent. The
work involved in this claim was work vis a vis Bauer's own
16 See the credibility resolution, supra.
19 The only "precedent" cited within the territorial jurisdiction of Local
433 was in the construction of the original portions of the St Elizabeth's
Hospital where red tile, unbanded and unnailed to the deck, was used as a
filler to create voids In this instance, occurring some 20 years before, red
tile was laid by bricklayers who at that time were employees of Bauer as
were the carpenters This is a weak precedent at best.
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees. Hence the strike of May 24, 1972, against
Bauer was a primary and permissible strike by Respon-
dent18 and thus no violation of Section 8(b)(4)(i) and
(ii)(B).
I further find that at no time herein did Respondent have
a labor dispute with Lippert as alleged in the complaint.
Lippert was merely the unfortunate third party to whom
Bauer happened to apparently subcontract some of the
work to which Respondent could, and did, make a
legitimate, or at worst a colorable, claim under the work
preservation clause of the Respondents-Bauer agreement.19
Construction Co., Inc ., are employers engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act
and are persons engaged in commerce or in an industry
affecting commerce within the meaning of Section
8(b)(4)(B) of the Act.
2. United Brotherhood of Carpenters and Joiners of
America , AFL-CIO, Local No. 433, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in nor is engaging in
unfair labor practices within the meaning of Section
8(b)(4)(i ) and (ii)(B) of the Act.
Consequently I will dismiss this complaint in toto.20
CONCLUSIONS OF LAW
1. Lippert Brick Contracting, Inc., and Bauer Brothers
is General Counsel's argument on the secondary nature of this strike
follows
Respondent's Object Was to Force Bauer to Cease Doing Business With
Lippert
On May 24, 1972, when Respondent engaged in its stoke against
Bauer, Lippert was performing its subcontract to do the filler block
work Lippert was doing this work with its own employees who were
members of the Bricklayers Union When the Respondent demanded
that Bauer give the filler block work to its Carpenter members, this was
tantamount, under the law, to a demand that Bauer cease doing
business with Lippert N LR B v Local 825, Operating Engineers
[Burns and Roe, Inc ], 400 U S 297
I find this argument unpersuasive and the case cited inapposite for the
simple reason that the work preservation clause involved here was
contained in Respondent 's contract with Bauer , the primary employer, so
that there was no involvement of neutrals in this instant case and no illegal
motivation need. be, or can be, implied . The instant case is a plain contract
interpretation case between Bauer and Respondent and throughout it
remained such.
19 One caveat Herein I make no work assignment determination as that
is not involved in this case That can be properly determined in an
8(b)(4)(D) case.
20 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the 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