Subordinate Union No. 30

National Labor Relations Board - Board Decisions

May 24, 1967

164 N.L.R.B. 945 (N.L.R.B. 1967)

SUBORDINATE UNION NO. 30 945
Subordinate Union No. 30 of Illinois of the
Bricklayers , Masons and Plasterers
International Union of America, AFL-CIO
and Cerro Copper and Brass Company, a
Division of Cerro Corporation and United
Steelworkers of America, AFL-CIO. Case
14-CD-214.
May 24,1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On January 3, 1967, Trial Examiner Gordon
J. Myatt issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision with
supporting arguments.
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 Decision, the exceptions and supporting
arguments, and the entire record in the case, and
hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner and
orders that Respondent, Subordinate Union No. 30
of Illinois of the Bricklayers, Masons and Plasterers
International Union of America, AFL-CIO, its
officers, agents, and representatives, shall take the
action set forth in the Trial Examiner's
Recommended Order.
(hereinafter called the Employer), alleging a violation of
Section 8(b)(4)(ti)(D) of the National Labor Relations Act,
as amended, by Subordinate Union No. 30 of Illinois of the
Bricklayers, Masons and Plasterers International Union of
America, AFL-CIO (hereinafter referred to as
Respondent Union), in connection with a work assignment,
the Board, pursuant to Section 10(k) of the Act, conducted
a hearing at St. Louis, Missouri, on January 13, and
February 8 and 9, 1966, to determine the dispute.
On June 27, 1966, the Board issued a Decision and
Determination of Dispute which is reported at 159 NLRB
1430. The Board found a dispute over a work assignment
did in fact exist , and that there was "reasonable cause to
believe" that the Respondent Union threatened to engage
in picketing for the purpose of forcing assignment of the
work to its members or to employees represented by it,
rather than to employees represented by United
Steelworkers of America, AFL-CIO (herein called the
Steelworkers). Such circumstances were deemed
sufficient by the Board to determine the dispute within the
meaning of Section 8(b)(4) and Section 10(k) of the Act.
The Board then determined the dispute by holding that:
(1) the Employer's bricklayers represented by the
Steelworkers were entitled to perform the disputed work
of laying refractory brick in the Employer's smelting and
melting furnaces; and (2) the Respondent Union was not
entitled, by means proscribed by Section 8(b)(4)(D) of the
Act to force or require the Employer to assign the disputed
work to its members. As a part of its Decision, the Board
required the Respondent Union to notify the Regional
Director for Region 14 within 10 days of the date of the
Decision, in writing, whether or not it would refrain from
forcing or requiring the Employer, by means proscribed by
Section 8(b)(4)(D) to assign the work in dispute to its
members.
On August 4, 1966, the General Counsel of the Board
issued a complaint and notice of hearing alleging that the
Respondent Union failed and refused to comply with the
Board 's Decision and Determination of Dispute. The
Respondent Union's answer admits certain allegations of
the complaint, but denies the commission of any unfair
labor practices. The answer further pleads as an
affirmative defense that the Board's Decision and
Determination of Dispute was made in disregard of the
evidence and based on "surmise, conjecture and
unwarranted presumption without factual foundation."
A hearing in this matter was held before me in St. Louis,
Missouri, on June 23, 1966. Subsequent to the hearing the
General Counsel and the Charging Party submitted briefs,
which have been duly considered by me in this Decision.
Upon the entire record in this case,' and upon my
evaluation of the witnesses based on my observation of
their demeanor, and upon the evidence contained in the
record, I make the following:
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Trial Examiner: Following the filing
of a charge on November 3, 1965, by Cerro Copper and
Brass Company, a Division of Cerro Corporation
I Pursuant to Section 102 92 of the Board's Rules and
Regulations, Series 8, as amended, the entire record in the
underlying 10(k) proceeding and the Board's Decision and
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
On the basis of the facts alleged in the complaint,
admitted by Respondent, and found by the Board in the
10(k) proceeding, I find that the Employer is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
Determination of Dispute constitute a part of the record in this
case, and, as such, have been reviewed by me in arriving at my
decision in this matter
164 NLRB No. 124
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. THE LABOR ORGANIZATIONS INVOLVED
As alleged in the complaint , admitted in the answer, and
found by the Board in the 10(k) proceeding, both
Subordinate Union No. 30 of Illinois of the Bricklayers,
Masons and Plasterers International Union of America,
AFL-CIO, and United Steelworkers of America,
AFL-CIO, are labor organizations within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Operative Facts
In October 1965,2 the Employer had three construction
projects in progress at its Monsanto, Illinois, facility.
These projects involved the construction of an
administration building, an annealing furnace, and a
control room and shell of an electric shaft furnace. The
work on these projects was being performed by outside
contractors who employed members of the various
building and construction craft unions, including members
of the Respondent Union.
On October 22, Dale Gillis, business representative of
the Respondent Union, visited the Employer's plant to
check on the work being performed by members of his
Union. While there, Gillis noticed the shell of the electric
shaft furnace, and upon inspection he determined that it
had to be lined with refractory brick.3 Gillis was told by the
general contractor's superintendent that Paul Tandler was
the chief engineer and supervisor of construction for the
Employer. Gillis then placed a call to Tandler from the
guard shack on the property. There is sharp conflict in the
testimony concerning the substance of the telephone
conversation and the events which followed thereafter.
Tandler testified that Gillis asked why the refractory
brick work "was not assigned to his Union, since all of the
other work [on the project] had been assigned to
construction crafts." Tandler explained that under the
terms of the Employer's contract with the Steelworkers'
the Company was obligated to assign the work to its
employees if they were qualified. According to Tandler,
Gillis then asked to meet with him personally, and
arrangements were made to meet in Tandler's office an
hour later. Gillis, on the other hand, testified that there
was no conversation concerning the assignment of the
brickwork to Cerro's employees and that the conversation
merely entailed the arrangements to meet with Tandler
later.
Tandler and Gillis met at approximately 10:30 a.m.
According to Tandler, Gillis repeated his statement that
the refractory work should have been awarded to members
of his Union. Tandler again informed Gillis that under the
terms of the Employer's contract with the Steelworkers
the Company had an obligation to assign such work to its
employees provided that they were qualified and were
t Unless otherwise noted, all dates hereafter refer to 1965
3 Refractory brick work consists of the installation of fire-
resistant brick or refractories and mortar in a steel shell This
special type of brick provides a heat- and leak-proof lining to the
furnace
" All of the Employer's production and maintenance workers
were represented by the Steelworkers
5 COCA is an association of industrial owners formed to
promote a better relationship between the industrial companies,
the construction contractors, and the craft unions in the area of
industrial construction
available to perform the work. In addition, Tandler stated
that the work was of a highly specialized nature involving a
number of possible changes which made it necessary for
the Employer to keep the work under its control. Gillis
then asked if the Company belonged to the Council of
Contractors Association (COCA) ,5 and when informed that
the Employer did belong to this organization, Gillis
suggested that they solicit the opinion of COCA on the
matter. Tandler placed a call to John Fallon, labor
relations director of COCA, and a four-way conversation
took place between Tandler, Gillis, Fallon, and Kurt
Schaeffer, also connected with COCA. Tandler testified
that he explained the Company's position on the
assignment of the refractory brick work, and that Gillis
stated "that it was very unusual to have a job that was
entirely carried on by building trades split up so that
`inplant' employees were getting part of the work."
According to Tandler, Fallon expressed the view that the
assignment was permissible, and he cited as precedent a
similar situation involving another company where
pipefitting work was divided between inplant employees
and members of a craft union. Tandler testified that Gillis
concluded the conversation by saying, "we will )ust have
to see."
Gillis, on the other hand, testified that he told Fallon
that he was merely trying to determine if there had been a
prejob conference 6 on the project, and who was going to be
the contractor. Gillis denied stating that the refractory
brick work looked like a "building trades job." However,
when he testified concerning this same conversation in the
underlying 10(k) proceeding, Gillis stated that "Mr.
Tandler explained that he was going to possibly assign a
refractory furnace to the Steelworkers, his own
employees, and I was maintaining that it should be other
people, and I told John [Fallon] my side of it, that I
thought it was strictly a building trades job ...."
Fallon also testified concerning the telephone
conversation. His recollection of the specific details of the
conversation was not too clear; however, he did testify that
the issue was over the assignment of refractory work to
inplant employees.
Sometime after the telephone conversation, Gillis paid a
visit to William Horstman, executive secretary of the
Council of Southern Illinois Building and Construction
Trades Business Representatives.7 Both Gillis and
Horstman claim that the only purpose of Gillis' visit was to
determine if Horstman's records indicated that a prejob
conference had been held on the Cerro project. When
Horstman's records showed that a conference had not
been held, he contacted Fallon and requested that a
meeting be scheduled. Fallon arranged for a conference
with the Employer's representatives for the following
Monday, October 25. In the 10(k) proceeding, however,
Horstman's testimony indicated that Gillis' concern
embraced more than just a prejob conference. There,
according to Horstman, Gillis inquired about a prejob
6 Fallon's duties include setting up prejob conferences on
proposed construction The purpose of such a conference is to
allow the owner, the contractors, and the craft unions to explore
any areas of jurisdictional dissension between two or more crafts
in an effort to resolve the dispute before it impedes the
construction
' This organization is composed of approximately 60 unions in
the Building Construction Trade Meetings are generally held on
Thursdays of every week, and the member unions are represented
by their business agents
SUBORDINATE UNION NO. 30
conference and indicated "that he was concerned about
who had the contract for the brick work."
On October 25, Fallon and Horstman met with Tandler
and Sanford A. Silverstein " at Cerro's plant . Horstman
testified that Fallon opened the meeting by stating that the
purpose was to find out why a prejob conference had not
been held. Horstman acknowledged that during the
discussion he asked whether the shaft furnace was going
to be a building trades job . He stated that he made no
claim for the refractory brick work on behalf of the
Respondent Union , and that he made it very clear that he
could not speak for the Bricklayers as they had their own
attorney who would advise them "what they could or could
not do." Horstman testified that it was "not uncommon for
any industrial plant to assign some work that they feel they
have reserved for their own company people, and some
work that is going to belong to the building trades."
Horstman 's testimony in the 10(k) proceeding , however,
presents this conference in a somewhat different light.
Horstman 's testimony in that proceeding indicates that
Fallon opened the meeting by bringing up the issue of the
refractory brick work. There is no mention in Horstman's
prior testimony that the announced purpose of the
conference was to determine why a prejob conference had
not been held on the project.
Both Tandler and Silverstein testified that Horstman
was only concerned about the assignment of the refractory
brickwork , and after they had asserted the basis for the
assignment to the Company' s employees , Horstman
concluded the meeting by stating that he would advise the
Respondent Union to take whatever legal means available
to convince the Employer to change the assignment.
Fallon recalled only a few of the details of the meeting, but
did recall that the "trend of the conversation was that a
discussion had been held by the building trades, and they
felt that they wanted to present to Cerro Copper and Brass
the situation that this was a building trades project, and
they felt that all of the items of work should be performed
by the building tradesmen."
On October 26 or 27, Gillis informed his attorneys that
the refractory brick work on the shaft furnace was being
performed by inplant employees . On October 28,9 the
Respondent 's attorney sent a letter to the Employer
stating, in substance , that the wages and conditions of the
employees engaged in bricklaying work were below the
area standard established by the Respondent and that the
Rspondent intended to engage in picketing to so advise the
public. The letter went on to state that the picketing was
for informational purposes and was not intended as a claim
for employment or for an assignment of any work.
On November 8, the Respondent Union forwarded a
second letter to the Employer . In this letter the
Respondent announced that it wished to clarify its position
concerning the proposed picketing by stating that it was
making no claim to bricklaying or masonry work presently
assigned to the Company's employees , represented by the
Steelworkers . The letter stated , however, that in view of
the disparity in wage rates, the Respondent was fully
justified in engaging in informational picketing to inform
s Silverstein is the Employer 's works manager
' It is significant to note that this was the date that Horstman
informed Gillis of the results of the prejob conference with the
Employer Gillis ' testimony in the 10 (k) proceedings indicates that
Horstman told him about the conference while they were
attending the regular meeting of the Business Representatives'
Council . It was also at this meeting that Gillis announced that the
298-668 0-69-61
947
the public of the substandard wages being paid by the
Company for brick and masonry work. The Respondent's
letter concluded by stating that upon satisfactory
submission of proof that its wage standards were not
endangered , the Respondent would refrain from picketing
or if picketing had commenced , it would cease.
On February 7, 1966, Respondent Union's attorney sent
a letter to the attorney for the Company stating that the
letters of October 28 and November 8, 1965, had reference
to wages paid by Cerro to its employees engaged in new
construction masonry work on an electric furnace
installation . The Respondent' s attorney advised that
inasmuch as the new construction work had been
completed , there was no basis for area standards picketing
and the stated intention to engage in such picketing was
withdrawn. The letter further stated that the Respondent
Union did not and does not have any intention of engaging
in area standards picketing with respect to wages paid by
the Employer to employees engaged in patch or repair
work performed as part of a continuing maintenance
function.
B. The Respondent Union's Contentions
The Respondent contends that it has not violated
Section 8(b)(4)(ii)(D) as it has made no claim for the
refractory brick work and as it does not contend that the
assignment of such work to employees represented by the
Steelworkers is improper. The Respondent does claim,
however, the right to advertise to the public the fact that
the employees performing refractory brick work at Cerro
are undermining its wage standards . Respondent's
counsel admitted on the record that the Union has not
notified the Regional Director , as required by the Board's
Decision and Determination of Dispute , whether or not it
will refrain from forcing or requiring the Employer, by
means proscribed by Section 8(b)(4)(D), to assign the
refractory brick work to its members. Respondent
contends that it has not engaged in conduct violative of
Section 8(b)(4)(D), and notification to the Regional Director
is unnecessary.
C. Concluding Findings
The Board 's award of the refractory brick work to the
employees represented by the Steelworkers is not subject
to review by a Trial Examiner . 10 However , it is necessary
to make an independent evaluation of the evidence in
order to determine whether the General Counsel has
established by "a preponderance of the evidence" that the
Respondent has engaged in conduct proscribed by Section
8(b)(4)(D). On the basis of the record before me, including
the entire record established in the 10(k) proceeding, I
conclude that the evidence preponderates in favor of a
finding of a violation. It is evident from Gillis'
conversations with Tandler and with Fallon that he was
claiming that the refractory brick work should be
performed by members of the Respondent Union . I place
no reliance upon Gillis' statements that he was not
Respondent would have to establish a picket line at the
Employer 's plant
"' International Printing Pressmen & Assistants ' Union of
North America , AFL-CIO (Kelley & Jamison , Inc), 150 NLRB
842, Local 1291 , International Longshoremen 's Association,
(Pennsylvania Sugar Div , National Sugar Refining Co), 142
NLRB 257
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interested in the assignment of the work, but was only
concerned over the fact that the brickwork would be
performed by employees whose wages and conditions
were substandard to those established by the Respondent
Union. t t Examination of Gillis' testimony in the prior 10(k)
proceeding reveals that he steadfastly maintained that the
brickwork was a "building trades job" and that it should
go to "other people" and not to the Company's employees.
In addition, Fallon, whom I credit, testified that the
telephone conversation of October 22, involved the
assignment of the refractory brick work to inplant
employees. I further find that the claim for the refractory
brick work was renewed by Horstman on October 25, when
he met with Fallon and the representatives of the
Employer. Although Horstman maintained that the only
purpose of the meeting was to find out why a prejob
conference had not been held, the record indicates that
the principal topic of discussion was the assignment of the
brickwork, and that Horstman terminated the discussion
by stating that the Respondent Union had an attorney who
would advise them as to "what they could do or could not
do." If the purpose of this meeting was to discover the
reason for the absence of a prejob conference, then there
would have been little need to discuss the basis of the
Employer's assignment of the work, and even less need for
Horstman's concluding statement concerning the
Respondent Union's future course of action. Thus, it is
evident that Horstman scheduled the meeting in order to
advance the Respondent Union's claim for the refractory
brick work. The letter of October 28, wherein the
Respondent announced an intention to engage in area
standards picketing, and the letter of November 8,
wherein the Respondent sought to clarify the basis for the
intended picketing, cannot be divorced from the prior
statements of Gillis and Horstman. When viewed in this
context, it is apparent that the threat to picket, ostensibly
for the purpose of protesting the failure to abide by area
standards, was also for the purpose of forcing the
Employer to change the assignment of the brickwork from
its own employees to a contractor who employed members
of the Respondent Union. Such conduct is proscribed by
Section 8(b)(4)(ii)(D). Local 25, International Brotherhood
of Electrical Workers, AFL-CIO, 157 NLRB 44, footnote 8,
and cases cited therein, New Orleans Typographical
Union No. 17, 152 NLRB 587, enfd. 368 F.2d 755 (C.A. 5).
The letter from the Respondent Union's attorney on
February 7, 1966, withdrawing any intention to engage in
area standards picketing because the brickwork on the
shaft furnace had been completed, does not moot the
issues in this case. While this letter states that the
Respondent Union has no intention of engaging in area
standards picketing when Cerro's employees engage in
patch or repair work as a part of a maintenance function, it
gives rise to the clear implication that when new
construction brickwork is assigned to inplant employees in
the future, similar conduct can reasonably be anticipated
from the Respondent Union. Local Union 224 and Local
Union 830, Pipefitters (Bernard Pipe Line Co.), 152 NLRB
902, 910.
The position adopted by the Respondent concerning
compliance with the Board's Decision and Determination
of Dispute in this case is untenable. As noted above, the
Respondent states that it has not informed the Regional
" Moreover, the patent inconsistencies between Gillis'
testimony in the prior 10(k) proceeding and in this hearing lead me
Director in writing whether or not it will refrain from
forcing or requiring the Employer, by means proscribed by
Section 8(b)(4)(D), to assign the refractory brick work to its
members for the reason that the Respondent, in its view,
has not engaged in conduct which violates Section
8(b)(4)(D). The adamant refusal to supply the unequivocal
statement of its intention as required by the Board
affirmatively demonstrates a lack of good-faith intent on
the part of the Respondent Union to accept and abide by
the Board's Determination. Local 595, International
Association of Bridge, Structural and Ornamental Iron
Workers, AFL, 112 NLRB 812, 815.
CONCLUSIONS OF LAW
1. Subordinate Union No. 30 of Illinois of the
Bricklayers, Masons and Plasterers International Union of
America, AFL-CIO, and United Steelworkers of America,
AFL-CIO, are labor organizations within the meaning of
Section 2(5) of the Act.
2. By threatening , coercing , and restraining Cerro
Copper and Brass Company, a Division of Cerro
Corporation, with an object of forcing or requiring Cerro to
assign to employees represented by the Respondent Union
the refractory brick work on the electric shaft furnace
rather than to Cerro's own employees represented by the
Steelworkers, the Respondent Union has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8 (b)(4)(ii)(D) of the Act.
3. The aforementioned unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent Union has engaged in
certain unfair labor practices proscribed by Section
8(b)(4)(D) of the Act, it will be recommended that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact,
conclusions of law, and upon the entire record in this case,
it is recommended that Subordinate Union No. 30 of
Illinois of the Bricklayers, Masons and Plasterers
International Union of America, AFL-CIO, its officers,
agents, and representatives, shall:
1. Cease and desist from threatening, coercing, or
restraining Cerro Copper and Brass Company, a Division
of Cerro Corporation, where an object thereof is to require
Cerro to assign the refractory brick work in Cerro's
smelting and melting furnaces to employees represented
by the Respondent Union rather than to Cerro's own
employees represented by the Steelworkers, except
insofar as any such action is permitted under Section
8(b)(4)(D) of the Act.
2. Take the following affirmative action which will
effectuate the purposes of the Act:
(a) Post at its business offices, meeting halls, and all
other places where notices to members are customarily
posted, copies of the attached notice marked
to discredit his statements, except where corroborated by other
credited testimony or evidence
SUBORDINATE UNION NO. 30
"Appendix."12 Copies of said notice, to be furnished by
the Regional Director for Region 14, after having been duly
signed by an authorized representative of the Respondent
Union, shall be posted by it immediately upon receipt
thereof and maintained for a period of 60 consecutive
days. Reasonable steps shall be taken to insure that the
notices are not altered, defaced, or covered by any other
material.
(b) Furnish to the Regional Director for Region 14,
signed copies of the said notice for posting by Cerro
Copper and Brass Company, a Division of Cerro
Corporation, provided that Company is willing, at all
places where notices to its members are customarily
posted.
(c) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Decision and
Recommended Order what steps the Respondent Union
has taken to comply herewith. 13
12 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
11 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read: "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF SUBORDINATE UNION No.
30 OF ILLINOIS OF THE BRICKLAYERS, MASONS AND
PLASTERERS INTERNATIONAL UNION OF AMERICA,
949
AFL-CIO, AND TO ALL EMPLOYEES OF CERRO COPPER
AND BRASS COMPANY, A DIVISION OF CERRO
CORPORATION
Pursuant to the Recommended Order of the National
Labor Relations Board , and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify you that:
WE WILL NOT threaten , coerce, or restrain Cerro
Copper and Brass Company, a Division of Cerro
Corporation , with an object of forcing or requiring it to
assign the work of laying refractory brick in Cerro's
smelting and melting furnaces to employees
represented by us rather than to its own employees
represented by United Steelworkers of America,
AFL-CIO.
SUBORDINATE UNION No. 30
OF ILLINOIS OF THE
BRICKLAYERS , MASONS AND
PLASTERERS
INTERNATIONAL UNION OF
AMERICA, AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
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.
If members have any question concerning this notice or
compliance with its provisions , they may communicate
directly with the Board 's Regional Office, 1040 Boatmen's
Bank Building , 314 North Broadway, St. Louis, Missouri
63102, Telephone 622-4154.