Carpenters Local 558 (B & W Contractors)

National Labor Relations Board - Board Decisions

Aug 17, 1984

271 N.L.R.B. 1048 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chicago District Council of Carpenters, Chicago and
Vicinity, Locals 558, 1527 and 2004 and B & W
Carpenter Contractors, Ltd. and James Murphy
and Doug Winton and Rich Walker. Cases 13-
CC-1364, 13-CB-10267, 13-CB-10268, and
13-CB- 10269
17 August 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 9 November 1983 Administrative Law Judge
William A. Gershuny issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
I The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
DECISION
STATEMENT OF THE CASE
WILLIAM A. GERSHUNY, Administrative Law Judge.
A hearing was held on September 14-15, 1983, in Chica-
go, Illinois, on consolidated complaint issued June 24,
1983, as amended at the hearing, alleging a violation of
Section 8(b)(4)(i) and (ii)B, based on oral directives of a
Carpenters Union official to employees of a subcontrac-
tor on December 20, 29, and 31, 1982, not to work be-
cause the Laborers Union had a dispute with the general
contractor, and a violation of Section 8(b)(l)(A) based
on the imposition of fines on three employees who dis-
obeyed those directives.
At issue principally is whether Respondent Unions en-
gaged in illegal secondary activity.
On the entire record, including my observation of wit-
ness demeanor, I make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION AND LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find
that developer-general contractor Pulte (secondary em-
ployer) and its subcontractor B & W Carpenter Contrac-
tors are employers subject to the Act and that Respond-
ents are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
II. UNFAIR LABOR PRACTICES
The background facts are largely undisputed.
In 1982, Pulte, as developer-general contractor, was
constructing homes in a residential subdivision, employ-
ing nonunion laborers at this and other construction sites
in the area.
It subcontracted to B & W all carpentry work and the
responsibility to clean up not only its own scrap but also
that of other subcontractors on the site. B & W em-
ployed approximately 15 journeyman carpenters. Under
its labor agreement with the Carpenters Union, all work,
including cleanup, was to be performed by journeymen;
the classifications of laborer, apprentice, or helper were
not recognized; and new hires were required to join the
Union after 7 days.
On Wednesday, December 15, 1982, the Laborers
Union began picketing the site with signs indicating that
both Pulte and B & W failed to pay wages which met
area standards. By Friday, December 17, all references
to B & W were deleted from the picket signs. On
Sunday, December 19, Pulte established reserved gates,
which at no time thereafter were violated by any em-
ployee or contractor. The picketing continued until
Friday, December 31, at 10 a.m. The carpenters alone
failed to honor that picket line during the first week.
Company records reveal the following as to which car-
penters worked on the site thereafter:
Mon., Dec. 20 None
Tues., Dec. 21 None
Wed., Dec. 22 None
Thurs., Dec. 23 None
Fri., Dec.24 None
Mon., Dec. 27 None
Tues. Dec.28 None
Wed., Dec. 29 None
Thurs., Dec. 30 None*
Fri., Dec. 31 None*
* Except Murphy, Winton, & Walker
During the period of the Laborers' picketing, Decem-
ber 15-31, and in some cases for months before, the Car-
penters had a primary labor dispute with B & W con-
cerning (1) the use of nonunion employees to perform
carpentry as well as cleanup work; (2) the underreport-
ing to the several Trust Funds of hours which B & W's
president "worked with the tools";' (3) the misreporting
to the Funds of nonunion employees allegedly perform-
ing nonbargaining unit work; (4) the nonpayment to the
several Funds of contractual contributions; and (5) the
271 NLRB No. 161
1048
CARPENTERS LOCAL 558 (B & W CONTRACTORS)
failure to provide a surety bond to guarantee payment of
such contributions. Details of each dispute follow.
(1) On December 14 and 15, B & W admittedly used a
nonunion driver-handyman to perform bargaining unit
cleanup work. On December 14, it employed (and then
terminated when the Carpenters protested) another non-
union employee for cleanup. Despite demand, B & W de-
clined to furnish the Carpenters with proof that such
nonunion employees were terminated. During that
period, Pulte, without knowledge of the Carpenters, also
provided nonunion employees to perform some of B &
W's cleanup work. These unidentified employees were
seen using B & W equipment. On December 29, two un-
identified employees were performing carpentry work on
the roof of a new home; B & W's president (also a union
member) refused to identify them; another union member
identified them only as new hires with no cards; and a
later check of license plates identified them as old em-
ployees and union members. A routine check of employ-
ee information cards revealed that one carpenter
(Hardin) was a former union member whose membership
had been terminated by nonpayment of dues; information
received by the Carpenters from an employee revealed
the presence of another nonunion carpenter (Brodie) on
the job. During this period, the Carpenters business rep-
resentative concluded (with considerable cause, I find)
that B & W was "hiding" nonunion employees on the
payroll.
(2) As the result of an early 1982 audit, the several
Funds claimed that B & W underreported the hours
worked by its president and that B & W owed additional
contributions. B & W reported his actual hours, whereas
the contract and Fund agreements required the reporting
of a full 40 hours for any week in which an official
worked any hours with the tools.
(3) The audit also revealed the misreporting of em-
ployees said to have performed nonbargaining unit work.
The Carpenters claims jurisdiction over all work per-
formed by the signatory on the job, whether it consists
of carpentry or cleanup work.
(4) As far back as March 1981, B & W has been almost
continuously delinquent in its payment of contributions
to the Funds. On March 23, September 27, and again on
December 30, the Carpenters issued shutdown letters to
B & W based on its "repeated failure to make proper
contributions."
(5) B & W, during all of 1982, has not given a surety
bond guaranteeing payment of these contributions. The
bond took on added significance in the spring of 1982
when B & W sought reorganization under the bankrupt-
cy laws. There is some evidence that at least 2 months of
contributions have been "lost" due to the pendency of
that proceeding.
The critical issue in this case-the precise instructions
given to the carpenters by business representative Ma-
cenas-admittedly turns on a resolution of witness credi-
bility. The testimony of General Counsel's three wit-
nesses (Pulte Vice President Martin, B & W President
Butterfuss, and carpenter Murphy) was that Macenas di-
rected the employees on December 20, 29, and 31 not to
work because of the Laborers' ongoing dispute with
Pulte. Respondents' witnesses (business representatives
Macenas and Umlauf) testified that Macenas spoke only
of B & W's use of nonunion labor to perform bargaining
unit work and its delinquency in making Fund contribu-
tions. More specifically, Macenas testified that on or
about December 231 he told the carpenters about the ex-
istence of nonunion men performing work for B & W,
mentioning the Laborers' dispute with Pulte only once to
emphasize the fact that the two disputes were separate
and unrelated; that on or about December 29 he again
told the carpenters of the presence of nonunion employ-
ees on the B & W jobsite, asking them to "abide by our
rules, "but again making no reference to the Laborers'
pickets; that on December 31, he distributed to all car-
penters copies of a "shut-down" letter (based on nonpay-
ment of contributions to the Funds), adding that it had
nothing to do with B & W's use of nonunion employees;
and that at no time did he direct or request the carpen-
ters to honor the Laborers' picketing activity against
Pulte. Umlauf corroborated this testimony.
I credit the testimony of Macenas and Umlauf, based
primarily on my observation of their demeanor on the
witness stand. Both appeared to be candid and were par-
ticularly convincing. Moreover, their testimony did not
appear to have that rehearsed quality. In addition, Ma-
cenas' testimony was entirely consistent with the realities
of the situation-that, because of a long history of juris-
dictional disputes with the Laborers, the Carpenters
would be the last to support a picket line established by
the Laborers over a dispute which in part (according to
the General Counsel) related to its claim over that very
cleanup work; and that the Carpenters itself had a
number of serious, ongoing disputes of a primary nature
with B & W. Finally, their version of the discussions is
consistent with the extensive documentary evidence (in-
cluding the charge specifications and the transcript of
testimony at the disciplinary hearing) relating to the sub-
sequent intraunion charges filed against the three carpen-
ters and others-there is reference to the members' fail-
ure and refusal to cooperate with the business representa-
tive's efforts to determine the existence of contractual
violations by B & W, but not one reference to instruc-
tions given by the Carpenters to B & W carpenters not
to cross the Laborers' picket line.
On the other hand, I was left with the feeling that the
General Counsel's witnesses were relating a well-re-
hearsed and sanitized version of the facts, one which un-
accountably ignored the existence of a number of serious
contract violations on the part of B & W.
In view of the foregoing, I find and conclude that Re-
spondent engaged in no illegal secondary activity in vio-
lation of Section 8(b)(4)(i) and (ii)(B). As to the remain-
ing allegations of a violation of Section 8(b)(1)(A), based
on the imposition of fines on the three carpenters, coun-
sel for the General Counsel candidly conceded at the
hearing that they rest exclusively on a finding of illegal
secondary activity and that, without such a finding, they
too must be dismissed.
t There is some insignificant discrepancy in dates due to Macenas' tes-
timony from memory.
1049
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, the complaint must be dismissed in its
entirety.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
2 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
ORDER
It is ordered that the complaint be, and the same
hereby is, dismissed.
Board and all objections to them shall be deemed waived for all pur-
poses.
1050