Local 742, United Brotherhood of Carpenters

National Labor Relations Board - Board Decisions

Jan 5, 1973

201 N.L.R.B. 70 (N.L.R.B. 1973)

70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local No. 742, United Brotherhood of Carpenters and
Joiners of America , John Foreman, Business Agent
and Harold Stolley, Steward and J. L. Simmons
Company, Inc. Case 38-CC-50
January 5, 1973
SUPPLEMENTAL DECISION AND
ORDER
On September 5, 1969, the National Labor Rela-
tions Board issued a Decision and Order in the
above-entitled proceeding,' finding that the Respon-
dent Union had committed violations of the Nation-
al Labor Relations Act, as amended, within the
meaning of Section 8(b)(4)(i) and (ii) and ordering
that the Respondent Union cease and desist there-
from and take certain affirmative action. Thereafter,
J. L. Simmons Company, Inc., the Charging Party
herein, and the Respondent Union filed petitions for
review and the Board filed a cross-application for
enforcement of the Order. Thereafter, the entire
matter came to be heard before the United States
Court of Appeals for the District of Columbia.
On April 6, 1971, the court issued its decision 2
declining to enforce the Board's Order because, in
the court's view, the Board's exclusive reliance on the
right-to-control test in assessing the Union's conduct
was impermissible. The court remanded the case to
the Board for a new decision, "considering the
union's objective `under all the surrounding circum-
stances ,' " and for further proceedings consistent
with the court's opinion. Thereafter, on December 7,
1971, the Supreme Court of the United States denied
a petition for certiorari filed by the Charging Party.3
The Board, acquiescing in the court's view con-
cerning use of the right-to-control test for the
purposes of this case, accepted the remand. On
January 18, 1972, the Board invited the parties to file
statements of position and briefs on the issue
remanded by the court. Such statements have been
filed by the Respondent Union, the General Counsel,
the Charging Party, and the Chamber of Commerce
of the United States, as amicus curiae.4
Thereafter, the Board announced that it would
hear oral argument and invited interested persons
and organizations to seek leave to appear and argue
i 178 NLRB 351
2 444 F 2d 895
3 404 U S 986
4 The Renewed Motion to Intervene filed by the Chamber of Commerce
is hereby denied as it raises no issues not previously considered.
5 For the purposes of oral argument , this case was consolidated with
George Koch Sons, inc., 201 NLRB No. 7 The names of the interested
parties who participated in the oral argument and who filed briefs are set
forth in our Decision in that case.
6 Anderson conditioned its "lifetime" guarantee of these doors upon
their being "premachined" at its factory where it had exclusive control over
and to file briefs. Oral argument was held before the
Board on June 26, 1972.5
The Board has again reviewed the entire record in
this case, including the statements of position, the
briefs of interested persons and organizations, and
oral argument before the Board and has decided to
affirm its original Decision for the reasons hereinaft-
er set forth.
On July 8, 1966, the Simmons Company entered
into an agreement with the Decatur and Macon
County Hospital Association calling for the enlarge-
ment of the latter's existing hospital facilities at
Decatur, Illinois. Contract specifications required,
among other things, the installation of plastic faced
doors which were to be guaranteed for the life of the
building. These specifications prohibited the cutting,
routing, trimming, or mortising of the doors after
their shipment from the manufacturer's plant and
further provided that doors requiring modifications
shall be returned to the factory for that purpose.
Under the terms of the agreement, Simmons was
bound to submit to the Association both the name of
the intended door manufacturer and detailed shop
drawings for prior review and approval. Simmons
ordered the required doors from the Anderson Wood
Products Company.6
On December 1, 1967, shortly after the first
shipment of doors arrived at the hospital project, the
Respondent's business representative, John Fore-
man, accompanied by the steward, Harry Stolley,
met with Vice President Robert Neal of Simmons. At
the meeting, Foreman protested that the use of these
doors would result in a diminution of work at the site
of construction, otherwise available to the carpen-
ters. Foreman insisted that the objectionable doors
be replaced by laminated "slabs," that is, unfinished
doors which are fitted and prepared for hardware at
the project site. In support of his position, Foreman
asserted that such slabs had previously been fitted,
prepared, and installed at the Adolph Meyer Zone
Center project in Decatur by construction site
carpenters.? Neal distinguished the two projects by
pointing out that the unfinished doors were guaran-
teed for 1 year only, whereas the doors here in
question were required to be guaranteed for the life
of the building. In the course of their discussion,
Foreman also noted that the objectionable doors had
materials and workmanship . This process begins with a solid wood core
which is crossbanded with a crossbanded veneer . Each door is then cut to
size and the side edges beveled . A plastic covering is affixed to these edges
and, next, to the two faces, under heat and pressure . Thereafter the door is
routed for hinges and mortised for locks . The final step involves the
application of a sealer to prevent moisture from affecting the exposed wood
parts: namely , the top and bottom edges and the routed and mortised
portions of the door
r The record shows, however , that employees represented by the
Respondent Union did, on at least one occasion, install "prefinished" doors
at a Decatur project without protest.
201 NLRB No. 8
LOCAL 742, UNITED BROTHERHOOD OF CARPENTERS
been prepared by millworkers who are employed at a
lower wage scale than are the carpenters on construc-
tion sites .8 He warned Neal that the Union would
not hang the doors for the Company or permit any
other contractor to do so. Neal, on his part, advised
Foreman that Simmons was bound by the terms of
its agreement to install the premachined doors and
was, therefore, without the legal right to substitute
doors more acceptable to the Union. The matter was
not resolved.
On December 11, after Stolley refused to allow the
carpenters to hang the disputed doors, Simmons'
attorney, Paul Gebhard, telephoned Bernard Mamet,
attorney for the Union, in an effort to resolve the
controversy. Mamet suggested that the parties might
negotiate the payment of a wage premium for each
precut door installed, but otherwise declared that it
was the policy of both the Respondent Local and its
International not to install precut doors. Subsequent-
ly, charges were filed against the Respondent Union,
alleging violations of the Act, and the doors were
hung under protest.
The issue with which we are here faced is, as
previously stated, narrowly drawn. On the foregoing
facts, we must determine whether, as found by the
Trial Examiner, the sole object of the Respondent's
conduct was work preservation or whether, as the
General Counsel asserts , such conduct was at least in
some measure "tactically calculated to satisfy union
objectives elsewhere."9
In making this analysis, we bear in mind that it is
the law of this case that we may not rely solely on a
lack of control by the employer over the work the
Respondent asserts it desires to "preserve." But we
also note that this factor, in the view of the reviewing
court, may be considered as a part of the total factual
milieu which we must scrutinize in an effort to
determine the objectives of the Respondent's con-
duct.
As we have explicated in considerable detail in
George Koch Sons, Inc., 201 NLRB No. 7, we do
deem highly relevant to a determination of objective
the question as to whether the struck or picketed
employer has any power to grant the union's
demands. For if the facts demonstrate that there is
no possibility that the struck or picketed or threat-
ened employer can resolve the dispute except by
either forcing a secondary independently owned and
operated business to take some action or by ceasing
to do business with some other entity, then even
though the union's conduct can be said to fall, in
8
Anderson 's employees are, however , represented by a union local
affiliated with the United Brotherhood of Carpenters and Joiners of
America.
Subsequently , Foreman characterized the controversy , according to
Roland Frazier , a feature writer employed by a Decatur newspaper, as one
71
part, at least, under the rubric of "work preserva-
tion," we are inclined to find such a set of facts
indicative of "union objectives elsewhere."
When, in accordance with the reviewing court's
directive to us in this case, we look beyond this
circumstance to the totality of the evidence here, we
find further substantiation for the existence of such
"union objectives elsewhere," and scant evidence
that a primary dispute existed over genuine "work
preservation."
We note first that Simmons was without power to
fulfill the desires of the Union to perform the work.
The work was not simply rendered unnecessary by
the nature of the product which the Hospital
Association had ordered, but if such work were
performed on the jobsite, it would have destroyed the
lifetime guarantee which the door manufacturer had
agreed to with the Hospital Association. It was thus
totally impossible for Simmons to carry out its
responsibility to install the specified product, as
guaranteed by the supplier, without either forcing the
Hospital Association and the supplier to change the
substance of their agreement as to guarantees-or
else to effectuate a cessation of business. These facts
establish further evidence of the secondary nature of
the Union's objectives.
There is, in addition, evidence that the Union was
substantially motivated by a Local and International
policy "not to install precut doors"-a characteriza-
tion by the Union's own representatives which seems
to us far more indicative of an objective directed at
an overall cessation of purchases from neutral
manufacturers than at a specific primary dispute
between the contractor here and a unit of employees
seeking to achieve a desired set of working condi-
tions from their primary employer. When this is
viewed in the further context of the Respondent's
express concern over the "substandard" wages paid
to the door manufacturer's employees, as evidenced
by Business Representative Foreman's comments to
Vice President Neal and to a newspaper reporter
covering the controversy, we believe the evidence of
"union objectives elsewhere" is further fleshed out.
In comparison, the countervailing evidence as to a
primary work preservation objective seems scant. It
is doubtful, first of all, whether the objective can
fairly be called work "preservation" at all. There is
no direct evidence that plastic-clad doors have ever,
much less traditionally, been installed in this area by
the Respondent's members. All the record shows in
this connection is an unsupported assertion by
involving doors "which had been manufactured in a shop which paid
substandard wages, or wages that were lower than a carpenter should
receive."
9 See National Woodwork Manufacturers Association v. N.L.RB, 386
U.S. 612 (1967).
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Business Representative Foreman during a discus-
sion that the type of work in issue had once been
performed at the Adolph Meyer Zone Center project
in Decatur. On the other hand, there is undisputed
record evidence that members of the Respondent
Union had on another occasion installed "prefin-
ished" plastic-coated doors at another Decatur
project. There is further evidence that premachined
metal doors have been installed by the Respondent's
members with no claim having been asserted that
jobsite fitting was an integral or traditional function
of the Respondent's constituency. It is also clear that
no contract clauses have ever been agreed to relating
to the matter of installing prefabricated doors of any
material, as guaranteeing that fitting work on such
doors is to be done by unit employees. In fact, we
find no evidence in this record that such matters
have ever been discussed in the parties' negotiations.
Upon the totality of the record, then, we conclude
that the preponderance of the evidence establishes a
secondary purpose in the Union's actions relating to
"union objectives elsewhere," and that there is only
insubstantial evidence to establish the existence of a
primary dispute between the Respondent and Sim-
mons as to whether Simmons should have, or could
have, assigned to the unit of employees represented
by the Respondent any work to which they had
either a traditional or contractual claim of right or
practice.
In view of the foregoing, we shall, and hereby do,
affirm our original Decision and Order finding that,
by its conduct, the Respondent Union had violated
Section 8(b)(4)(i) and (ii)(B) of the Act. We wish to
make clear, however, that the above analysis is
required by the law of this case, and, in the face of
our respectful disagreement with the circuit court,
should not be construed as inconsistent with our
decision in George Koch Sons, Inc., supra.
MEMBER FANNING , dissenting:
In remanding the instant case to the Board for
further proceedings, the court of appeals instructed
the Board not to rely on a per se application of its so-
called right-to-control test in determining the Un-
ion's objective here but rather to consider that
objective under all the surrounding circumstances.
And as the focus for this inquiry, the court cautioned
10 The Administrative Law Judge found that Union Representative
Foreman opened the December I, 1967, meeting with Simmons' representa-
tives with the comment that he thought there was a problem involving the
doors since the mill had done work "that had been done in the past
exclusively by the carpenters on the jobsite " In the course of the meeting,
Foreman also told Neal, who was Simmons' representative , that it was
Neal's responsibility to tell the mill that was manufacturing the doors "to
stop doing [Respondent's] work ." And Respondent 's attorney , Mamet, in
suggesting to Simmons' attorney that a solution to the dispute might be
worked out whereby Simmons would pay a certain rate for each of the
premachined doors hung, suggested this approach so that "the bargaining
unit would be protected."
11 It is true that, in that one instance , Respondent's members hung the
the Board to ascertain whether the Union's objective
was directed to the labor relations of its members'
employer, i.e., Simmons, or whether it was directed
elsewhere. Having carried out his analysis, I cannot
agree with my colleagues that the evidence presented
here supports a conclusion that the Union's objective
had other than a work preservation aim, directed at
other than the labor relations of Simmons. Hence,
under the terms of the court's remand, I would
dismiss the complaint in its entirety.
While my colleagues have made reference to
certain statements of various of Respondent's repre-
sentatives which read alone might suggest a pros-
cribed object, I note numerous other occasions when
Respondent's officials expressly couched their com-
plaints about Simmons' conduct in purely work
preservation terms. 10
While I note also that the type of door here in
question, the plastic-faced door, had only once
before been used on a jobsite within Respondent's
jurisdiction,ii I also note the fact that Respondent's
members had traditionally done the same work in
dispute here on the often-used wood type of door, a
door strikingly similar to the plastic-faced door here
in dispute. Moreover, there is testimony in the record
that the plastic-faced doors could have been worked
on just as efficiently and well at the jobsite as in the
factory, the only distinction being that the door
manufacturer would not give its lifetime guarantee to
the doors if such were done.12
I have also considered the absence of a contract
clause covering the matter of installation of prefabri-
cated plastic-faced doors as a factor militating
against my conclusion that the Union's aim was
solely work preservation. However, in light of the
facts (1) that there is no disagreement that the work
in dispute, if to be done on wood doors, traditionally
has been done by the Union's members on the
jobsite and (2) that there is no contract clause
covering the handling of this work on wood doors
either, I find no great significance in the lack of a
specific contract clause covering the work on the
plastic-faced doors.
In sum , I conclude that, viewed under all the
surrounding circumstances, 13 the Union's objective
was addressed to the labor relations of Simmons only
prefabricated doors without objection . However, that incident was some 4
years prior to the one in question here and involved significantly fewer
doors . In the circumstances of this case, I do not think this earlier incident
constitutes a waiver of Respondent 's work preservation claim here
12 While the "lifetime guarantee" factor may have some surface appeal
in constructing an argument that the Respondent's aim was not solely one
of work preservation, such a factor in the final analysis does not direct itself
to what the Union 's object was but rather to the difficult position in which
Simmons found itself because of the hospital's requirement for a lifetime-
guaranteed door As such , this factor is really an offshoot of the lack-of-
control argument, and while I have considered it, I do not think it aids the
mandated inquiry to any great degree.
13 In addition to all the above factors, I have , consistent with the court's
LOCAL 742, UNITED BROTHERHOOD OF CARPENTERS 73
and that such objective had as its sole aim the instructions, I would dismiss this complaint in its
preservation of the union members' unit work. In entirety.
such circumstances, in light of the court's remand
remand , also considered Simmons' lack of control over the decision as to
the type door to be used Such lack of control does not change my opinion
herein , however.