Local No. 433, United Brotherhood of Carpenters and Joinersof America, Afl--cio, Petitioner, v. National Labor Relations Board, Respondent, 509 F.2d 447 (D.C. Cir. 1974)

These petitions invoke our jurisdiction under sections 10(e) and (f) of the National Labor Relations Act of 1947.¹  At issue is an order of the National Labor Relations Board, issued 8 March 1973, finding the Carpenters Union in violation of section 8(b) (4) (B) of the Act.²  For the reasons set out below, the petition to set aside the Board's order is granted; the Board's cross-petition for enforcement of that order is denied.

On 1 February 1972 Bauer Brothers Construction Co., Inc., a general contractor, began construction on the addition of five floors to the existing St. Elizabeth Hospital in Belleville, Illinois. Bauer and the Carpenters Union³  were bound by a collective bargaining agreement between Southern Illinois Builders Association ('SIBA'), of which Bauer was a member, and Tri-Counties Illinois District Council of Carpenters, with which the Carpenters were affiliated. The agreement covered work of all branches of the carpentry trade, including 'milling, fashioning, joining, assembling, erecting, fastening or dismantling of all materials of wood, plastic, metal, fiber, cork and composition, and all substituting materials.'⁴  It also provided that such unit work was to be performed only by employees of the bargaining unit.⁵  Moreover, the agreement contained a clause which purported to regulate subcontracting of unit work by Bauer.⁶ 

Bauer entered into a written subcontract on 8 March with Lippert Brick Contracting, Inc., under which Lippert was to perform all masonry work on the project.⁷  The dispute underlying the instant petitions centered around the task of laying haydite filler blocks used in the formation of concrete floor joists.⁸  The disputed task was eventually performed by Lippert bricklayers.

Early in April, Alfred Kraft, the Carpenters' business agent, and Norbert Wolf, Bauer's construction superintendent, engaged in several discussions concerning the proposed use of lightweight filler blocks as a substitute for the metal or wooden formwork traditionally used in concrete joist floor construction. During the first discussion, when Kraft inquired as to the type of filler material to be used, Wolf answered that part of the work had been subcontracted to Lippert, and that depending upon the terms of that subcontract, it might create a problem for the Carpenters. When, in the second discussion, Wolf again mentioned the problem, Kraft stated his view that the block-laying was properly Carpenters' work since the filler block was taking the place of 'something like a pan deck.'⁹  Wolf suggested that since Bauer had subcontracted the work and therefore had no control over the blocklaying assignment, Kraft should talk to Lippert, the subcontractor in charge of the filler blocks. Later, when Kraft met with Wolf and Bauer project manager Weiss and stated that carpenters had been employed to lay haydite blocks on a similar construction project in Springfield, Illinois, Weiss acknowledged that he 'maybe made a mistake.'¹⁰  Wolf suggested a meeting to resolve the problem.

At Bauer's request, SIBA called Bauer and the Carpenters to a meeting but did not inform the Carpenters that Lippert and the Bricklayers' business agent had also been invited to attend. At the meeting, held on 4 May, Lippert stated that his men would lay the blocks and the Carpenters would strike the lines, nail the metal bands to the temporary deck, and band the blocks into place. Kraft, the Carpenter Representative, saw this proposal as a problem and referred to the use of carpenters to lay out the blocks on the Springfield construction site. The meeting adjourned without a solution.

Construction progressed until 24 May, by which time the deck had been built, lines had been partially struck, and some of the metal bands had been nailed to the deck. But when Lippert bricklayers began to lay out the blocks, Elmer Hassenbrock, the Carpenters' shop steward, complained to Wolf, Bauer's construction superintendent, that the Carpenters would not work on the same deck where bricklayers were doing carpenters' work. At Wolf's direction, Lippert asked Hassenbrock what the problem was and Hassenbrock repeated that the Carpenters would not work alongside the bricklayers. Lippert replied, 'Well, that is fine . . . we will do it all.'¹¹ 

The Carpenters were offered other work by Wolf, but Hassenbrock informed him at noon that the Carpenters would walk out. On 25 May Lippert filed an unfair labor practice complaint with the National Labor Relations Board alleging a violation by the Carpenters Union of section 8(b) (4) (B) of the National Labor Relations Act of 1947.¹²  The Administrative Law Judge found that the Carpenters had not violated section 8(b) (4) (B), but the Board reversed and found that the strike was secondary and in violation of the Act.

The Carpenters Union filed the instant petition for review, and the Board cross-petitioned for enforcement of its order.II. INTERPRETATIONS OF SECTION 8(b) (4) (B)

In NLRB v. Denver Building Council,¹³  the Supreme Court noted that Section 8(b) (4) (B) incorporates the 'dual congressional objectives of preserving the rights of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own.'¹⁴  As the Court stated some years later in National Woodwork Manufacturers Ass'n v. NLRB,¹⁵  striking the delicate balance between these twin objectives requires 'an inquiry into whether, under all the surrounding circumstances, the Union's objective was preservation of work for (the unit) employees, or whether the . . . boycott (was) tactically calculated to satisfy union objectives elsewhere.'¹⁶ 

Prior to the National Woodwork decision, the Board's application of a 'right to control' test in distinguishing between primary and secondary activity received broad acceptance in the Courts of Appeals.¹⁷  Post-National Woodwork courts, however, have concluded that that decision restricts application of the test.¹⁸ 

But whether we examine the totality of the circumstances or apply a nearly per se right to control test, in which direction the Board seems inclined in some cases, we think the Board is wrong on the facts before us. At the center of the labor dispute in National Woodwork was a contractual restriction precluding the employer from subcontracting work which had been traditionally performed by his own employees and which he, being in position to make such assignment, had unilaterally altered. Thus the boycott in National Woodwork did not extend 'to satisfy(ing) union objectives elsewhere.'¹⁹  We think the plain meaning of National Woodwork is that the legitimate aim of a work preservation clause is simply to cause an employer to retain work traditionally done by his employees.

Article VII, section 4, Subcontracting--Unit Work²⁰  was a straightforward work preservation clause seeking to insure that all work of the defined type undertaken by Bauer would be performed by the Carpenters Union, or, if subcontracted out, would be done in accordance with the same or higher standards of pay and other benefits that the Carpenters had contracted for. (See Part IV, infra.) Having agreed to this, Bauer was under an obligation to live up to it, i.e., to give the defined work to this Carpenters Local or, if subcontracted out, to workers with equivalent standards.²¹  Any dispute over whether Bauer was living up to the contract would seem to be a dispute with the other party to that contract, i.e., the Carpenters Local. To put it in the context of this case, the Carpenters Local would naturally look to Bauer for enforcement of the contract clause, for it was Bauer with whom the Carpenters had made the contract.

Apparently the Board did not grasp this basic relationship between Bauer and the Carpenters, for the Board's conclusions rest on the notion that Bauer was a neutral employer caught in the Carpenters' primary dispute with Lippert. This mistaken notion rests in turn upon two slender evidentiary reeds gleaned from the Administrative Law Judge's findings. In accordance with our duty under Universal Camera Corp. v. NLRB²²  to determine upon an examination of the entire record whether the evidence supporting the order below is substantial, we have determined that our consideration of the evidence, aside from the original fundamental contractual position of the parties discussed above, compels the conclusion that the Carpenters' only dispute concerned the preservation of unit work and was with Bauer, not with Lippert.

The meager evidence upon which the Board relies to support its determination that the Carpenters' dispute was with Lippert is (1) the four-sided meeting of 4 May called by SIBA and attended by Bauer, the Carpenters, Lippert, and the Bricklayers; and (2) a remark made by Hassenbrock (the Union Steward) to Lippert during a fortuitous meeting in the Bauer construction trailer. Standing alone, this evidence might support the inference that the Board suggests.²³  But when weighed against the overwhelming evidence to the contrary, any such inference disappears.

Until the meeting of 4 May, the record contains no evidence that Lippert was involved in any discussions with the Carpenters or that the two had any contact at all regarding the disputed work. The record does indicate, however, that Kraft (Carpenters' representative) met with Wolf (Bauer's superintendent) on three occasions to discuss the matter, Wolf suggested that Kraft take the mat-and on at least one of those occasions, ter up with Lippert. Kraft apparently declined the suggestion and did not actually discuss the issue with or even in the presence of any Lippert representative until the meeting of 4 May, which had been called by SIBA at Bauer's request. Later it was Wolf who suggested to Lippert that he talk to Hassenbrock when it became apparent that a walk-out was imminent.

No formal meeting to discuss the problem was ever held between the Carpenters and Lippert. Lippert had a chance encounter with Hassenbrock in the construction trailer, asked what the problem was, and received the Carpenters' short answer.

In sum, we conclude that instead of substantial evidence supporting the conclusion that the dispute was between the Carpenters and Lippert, we find in the record evidence demonstrating that the dispute was with Bauer all along, and that any attempts to enmesh Lippert in the dispute were made by Bauer's representatives.

The labor agreement by which Bauer and the Carpenters were bound contained a subcontracting clause²⁴  which, because it was 'germane to the economic integrity of the principal work unit.'²⁵  and sought 'to protect and preserve the work and standards . . . bargained for,'²⁶  we characterize as a 'union standards' clause, primary in nature.²⁷  The work unit was defined to include 'assembling (and) erecting . . . all materials of wood, plastic, metal, fiber, cork and composition, and all substituting materials.'¹⁸ From the very outset of the controversy, Kraft maintained that since the haydite blocks were to take the place of 'something like a pan deck,'²⁹  the task of laying them belonged to the Carpenters. The Administrative Law Judge agreed and held that at the core of the dispute was 'a legitimate question of interpretation of the existing labor agreement . . . for the purpose of preserving work which was 'clearly claimable" thereunder by the Carpenters.³⁰ 

The Board argues that the contract did not prohibit subcontracting of unit work, pointing out that unit work had been sublet in the past without any disagreement among the parties. This of course begs the question lying at the very heart of the clause, for there is no evidence that any subcontracts had been awarded to employers who refused to recognize union standards. The only reasonable conclusion, therefore, is that other unit work had been let to subcontractors who recognized union standards.

However, regardless whether the clause imposed an absolute ban on subcontracting of unit work, or only sought to limit subcontracting to employers honoring union standards,³¹  if the clause meant anything at all, it was clearly breached by Bauer in this case. Its very purpose, we believe, was to prevent just such an occurrence as that which led to the instant dispute, i.e., where a general contractor places beyond his reach the power to make unit work assignments.³²  Through the clause the Carpenters sought to protect against having to bargain for the assignment of unit work with a subcontractor, such as Lippert, with whom they were not bound by labor agreement. We perceive Bauer's responsibility under the agreement to have been to (a) insure that unit work, if sublet at all, was only awarded to employers who would honor Carpenter Union standards, or (b) refrain from subcontracting unit work in toto. Having sublet the work at issue, Bauer's duty was then to insure that Lippert complied with union standards. When Wolf first became aware of a potential dispute over laying the haydite blocks, he misconceived Bauer's responsibility under the labor agreement. The ensuing strike was in protest over a breach thereof and an effort to preserve unit work. The Carpenters having no duty to negotiate with Lippert, when it appeared that Bauer would not meet his responsibility under the agreement, the Carpenters struck. We find nothing unlawful in that conduct.

The conclusions of the Administrative Law Judge are amply supported by evidence in the record. To the extent that the findings and conclusions of the Board are inconsistent therewith, they are not supported by substantial evidence. Accordingly, the order of the Board here under review is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

So ordered.