International Longshoremen's and Warehousemen's Union

In the Matter Of INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSE- MEN'S UNION, LOCAL No. 16, C. I. 0., and JUNEAU SPRUCE CORPO- RATION Cases N08.19-CD-4 and 19-CD-5.-Decided April 1, 1949 DECISION AND DETERMINATION OF DISPUTE This proceeding arises under Section 10 (k) of the Act, as amended. by Labor Management Relations Act, 1947, which provides that "Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph 4 (D) of Section 8 (b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen ... " On August 3, 1948, Juneau Spruce Corporation, herein called the Company, filed with the Regional Director for the Nineteenth Re- gion of the Board a charge in Case No. 19-CD-4 alleging, among other things, that International Longshoremen's and Warehouse- men's Union, Local 16, affiliated with the Congress of Industrial Or- ganizations, herein called ILWU, and certain named agents had vio- lated Section 8 (b) (4) (D) of the Act.,' On September 16, 1948, the Company filed another charge in Case No. 19-CD-5 alleging, among other things, an additional violation of 1 The relevant portions of Section 8 of the Act are as follows : (b) It shall be an unfair labor practice for a labor organization or its agents (4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manu- facture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is • s n s s n • n (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft or class rather than to employees in another labor organization or in another trade, craft or class, unless such employer is failing to conform to any order or certification of the Board determining the bargaining representative for employees performing such work: . . . [Italics. supplied.] 82 N. L. R. B., No. 71. 650 INTERNAT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 651 Section 8 (b) (4) (D). In accordance with a stipulation by the parties the cases were consolidated for hearing. Thereafter, a hearing was held before a hearing officer of the Board at which International Woodworkers of America, Local No. M-271, also affiliated with the Congress of Industrial Organizations, herein called Woodworkers, was permitted to intervene. The hearing was held under Section 10 (k) of the Act and Sections 203.74 to 203.78 inclusive of the Board's Rules and Regulations. All parties appeared at the hearing and were afforded full opportunity to be heard, to ex- amine and cross-examine witnesses, and to adduce evidence bearing oxr the issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. On January 6, 1949, the Board heard oral argument at Washington, D. C. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Juneau Spruce Corporation, an Alaska corporation with its prin- cipal place of business in Juneau, Alaska, is engaged in the business of manufacturing lumber and lumber products, annually valued in excess of $1,000,000, which are shipped from Juneau to other places in Alaska, to various States of the United States, and to the Dominion of Canada. We find that the Company is engaged in commerce within the mean- ing of the Act. 2. THE DISPUTE a. The facts On May 1, 1947, the Company purchased from Juneau Lumber Mills, Inc., a sawmill and planing mill at Juneau, Alaska, logging equipment at Edna Bay, Alaska, retail yards at Juneau, Anchorage, and Fairbanks, Alaska, together with all equipment used in those operations. It did not purchase the corporate stock of the predecessor company, nor did it acquire any of its accounts receivable or contracts or assume any of its liabilities. A few days before May 1, 1947, notices had been posted advising employees that Juneau Lumber Mills, Inc., was to cease operations as of the close of business on April 30, 1947, and that persons desiring employment should apply the following day. All mill employees of the predecessor company ap- f;52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plied and were hired. The Company began its operations on May 2, 1947, with the same employee complement. When the Company purchased the physical assets of its predecessor, almost all the lumber it produced was being taken by the U. S. Army Engineers. From May to September 1947, it also sold to the same buyer. Anticipating the completion of its contract with the U. S. Army Engineers, and the necessity for disposing of its products else- where, the Company acquired a seagoing barge for use in transporting lumber to points in Canada and the United States. Thus, in October 1947, it began using its millyard workers to move the lumber to the edge of the dock, and to load it on the barge by use of the dock crane; part of the lumber had been in storage areas, and part of it had been taken directly from the mill to the barge. The first bargeload of lumber was shipped that month, another in February 1948, and a third in April 1948. All loading on these barges was done by the regular employees of the Company, represented by the Woodworkers. At the time the Company acquired possession, the predecessor com- pany had a collective bargaining agreement with the Woodworkers which covered the employees at the mill and at the Juneau retail yard. The Woodworkers was the recognized bargaining representative of those employees. This contract was not continued when the Com- pany took possession. However, in July 1947, discussions looking toward the negotiation of an agreement were initiated between the Company and the Woodworkers, and continued through October 1947, culminating in an agreement signed November 3, 1947. During the negotiations in October 1947, a question was raised as to whether the contract should cover the bargeloading operations de- scribed above. The Company contended that it was the usual prac- tice in the industry for millyard workers to perform this operation. The Woodworkers preferred that the recognition clause in the con- tract should be the same as in the past, without specific mention made of this work. According to a witness for the Company, that clause in the agreement of November 3, 1947, although not made more specific, was intended to cover all operations at the mill including bargeload- ing.2 This was uncontroverted. In the meantime, the ILWU sought to reach an understanding with the Company. Shortly after the Company began operations in May 1947, the ILWU requested the Company, as one of the waterfront employers, 2 The recognition clause employed the same wording as the recognition clause in the con- tract between Juneau Lumber Mills, Inc., and the Woodworkers formerly in effect. Insofar as it is applicable here, this clause read as follows : The Union [ the Woodworkers ] is hereby recognized as the sole and exclusive . . . bargaining agent for all the employees of the Employer in its sawmill , manufacturing and retail department. .. . INTERNAT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 653 to become a signatory to an agreement between the ILWU and the Juneau Waterfront Employers Association. Because of the absence of the Company's vice president and general manager, the matter was held in abeyance. However, in October 1947, when the ILWU learned that bargeloading was being done by the Company's mill- workers, who were members of the Woodworkers, its representatives advised the Company that all longshore work belonged to the ILWU, and that their men should be assigned to the work of loading barges. They contended that the Company was bound by an agreement between the ILWU and the Juneau Waterfront Employers Association to as- sign longshoremen to do this work, claiming that the Company was a successor to Juneau Lumber Mills, Inc. (a party signatory to the agreement) and to the latter's contractual obligations thereunder. The Company denied the ILWU's request. It is conceded by the ILWU that at this time and all times thereafter it had no members among the Company's employees. The mill was closed from the middle of December 1947 through most of March 1948, due to a seasonal shut-down. In April 1948, the millyard employees, who were members of the Woodworkers, loaded a Company barge; they had done so previously in October 1947 and in February 1948. In the same month, the ILWU again sought to reach an agreement with the Company to have its members assigned to bargeloading. When the Company did not agree, the ILWU established a picket line at the Company's opera- tions at Juneau. The mill employees refused to cross this picket line. Thereupon, all mill operations ceased. After several weeks, with employees who were members of the Wood- workers out of work, and with efforts to mediate by International Representatives of the Woodworkers proving futile, the Woodworkers decided to reach an understanding with the Company. Accordingly, in an agreement executed with the Company on July 2,1948, the Wood- workers asserted jurisdiction over the Company's loading operations a From July 3 to July 19, 1948, the mill employees returned to work, and have been at work ever since. Picketing by the ILWU, however, continued. On August 27, 1948, the Company moved a load of lumber by tug and oceangoing barge from Juneau, Alaska, where it had been loaded by millyard employees. On August 30, the barge and cargo arrived 8 The following paragraph from the July 2, 1948 , agreement between the Company and the Woodworkers is pertinent here : Local M-271, International Woodworkers of America , C I. 0, agrees to cross the picket line established by Local 16, I. L. W. U. and claim jurisdiction of all work per- formed by employees of the Juneau Spruce Corporation , according to our contract, also the loading of Company owned or leased barges with Company gear as stated in the Corporation's letter signed by E. H. Card and addressed to Virgie Burtz. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at Prince Rupert, British Columbia, where the Company's representa- tive sought to have it unloaded. He contacted a stevedoring firm, but was advised that this firm's employees , members of Local 505 of the ILWU, would not handle the cargo because it had come "from behind an ILWU picket line." The loaded barge was then moved to a port in the United States. On the date of the hearing the ILWU still maintained its picketing activities. b. Contentions of the parties The Company contends that the ILWU by attempting to force it to assign work to ILWU members rather than to the members of the Woodworkers to whom such work had already been assigned, is en- gaged in the commission of unfair labor practices requiring proceed- ings under Section 10 (b) of the amended Act; that a complaint should have been issued under that Section and action taken leading toward injunctive relief under Section 10 (1) ; that Section 10 (k) requires the Board to hear and decide the rights of two or more competing unions only in cases involving overlapping certifications or orders of the Board where there is a bona fide doubt as to representation; and that the Board should, in any event, declare the right of the members of Woodworkers to perform the work assigned to them. The Woodworkers states that although at first, because it wished to avoid a work stoppage, it did agree to support the ILWU's claim, after the picket line was established it learned that there was no signed con- tract between the Company and the ILWU; that, moreover, it later viewed the situation in the light of the provisions of Section 8 (b) (4) (D) ; and that under these circumstances, its members were entitled to perform the work which the Company had assigned to them. The ILWU contends that it is the certified bargaining representative for all longshoremen employed on the waterfront at Juneau, Alaska; that the Company is the successor to Juneau Lumber Mills, Inc.; that such predecessor, from 1934 to May 1947 (when it transferred its assets to the present company) had employed members of Local 16, ex- clusively, in loading its own vessels and those of others; that it repre- sents a unit of longshoremen at the Company's plant on the theory of 4'a continuing relationship," even though the Company is not currently employing longshoremen; that it had not attempted to coerce the Com- pany to give employment to its members, but is insisting that it be assigned the same class of work it had performed since 1934; that the unfair labor practice, if any, had been committed by the Company by attempting to deprive the ILWU of the work which it had been per- forming since 1934; and that while not necessarily anticipating any INTERNAT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 655 affirmative relief, it does ask that the unfair labor practice charges be dismissed. c. Applicability of the statute The charges filed in this case allege that the Respondent violated Section 8 (b) (4) (D) of the amended Act by engaging in certain activities proscribed by that Section for the purpose of compelling the Company to assign particular work [the loading of barges] to em- ployees in a particular labor organization [the ILWU] or in a particular trade [longshoring], rather than to employees in another labor organization [the Woodworkers], or in another trade or class [sawmill workers or roustabouts]. On the record before us, we are satisfied that the conduct which the charge alleges the respondents engaged in, comes within the purview of Section 8 (b) (4) (D) of the amended Act. Accordingly, under the language of Section 10 (k) 4 we are "empowered and directed to hear and determine the dispute" out of which the unfair labor prac- tices alleged herein arose. The Company takes the position that the record here contains all the elements necessary to constitute an unfair labor practice under .Section 8 (b) (4) (D) ; that therefore a complaint under Section 10 (b)-as in any other unfair labor practice charge-should issue forthwith, and that a determination under Section 10 (k) is neither feasible nor required. Our dissenting colleagues, although conceding that a jurisdictional dispute within the meaning of Section 8 (b) (4) (D) is involved, would not proceed under Section 10 (k), be- cause in their view the Company is not neutral in the controversy, and because no determination of the Board could settle the controversy. We do not agree. We have held in the Moore Drydock Company cases that, reading Sections 8 (b) (4) (D) and 10 (k) together, as we are required to do by the amended Act, the Board has no choice but to proceed "to hear and determine" the dispute out of which the alleged unfair labor practice arose. The purposeful postponement ,of further proceedings (during the initial 10-day period) ; the op- portunity afforded the rival unions to reach a settlement or to agree Section 10 (k) provides: Whenever it is 'charged that any person has engaged in an unfair labor practice within the meaning of paragraph ( 4) (D) of Section 8 (b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practices shall have arisen, unless , within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted , or agreed upon methods for the voluntary adjustment of, the dispute Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment to the dispute, such charge shall be dismissed. Matter of Moore Drydock Company, 81 N. L. It. B. 1108. ( Members Murdock and Houston separately dissenting.) 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon methods for reaching an adjustment of the dispute; the re- quirement that the charge be dismissed upon a showing that the dispute has been settled (during the initial stage) or compliance effected after the Board decision (the determination of dispute such as that made here), all lend persuasive support to the view that Congress intended the Board first to attempt to resolve the controversy by means of a Section 10 (k) determinations It is only where it still is necessary thereafter to proceed with the unfair labor practice charge under Section 8 (b) .(4) (D)-in the event of non-compliance, for example, with the Determination of Dispute-that a complaint may be issued under Section 10 (b). Thus, a Section 10 (k) hearing has an effective function, and the Board a definite responsibility to dis- charge thereunder, to obviate the conventional unfair labor practice proceeding through a statutory device for expediting adjustment of such disputes.7 Moreover, in the absence of language specifically limiting the application of Section 10 (k) to certain situations only, or even persuasive legislative history in support of such restricted application, the Board is obliged to give the effect to that Section which its language requires. The interpretation adopted here, gives practical meaning to the concluding sentence in Section 10 (k) which reads : "Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dis- pute, such charge shall be dismissed." The legislative history supports this interpretation . H. it. 3020, as reported, provided for the appointment by the Board of an arbitrator to hear and determine the dispute The award of the arbitrator was to have been deemed a final order of the Board. This provision also appeared in S 1126, as reported . In conference , the section was amended by deleting the provision for the appointment of an arbitrator . When Senator Murray, on June 6, 1947, stated on the floor of the Senate that the change in conference delegated to the Board itself the arbitration function originally delegated to an arbitrator, no one either then or later disputed this statement ( 93 Cong. Rec. 6665 ). Also pertinent is Senator Ellender's com- ment during the Congressional debate that the proposed provision would give the arbitrator "the power to stop jurisdictional strikes" ( 93 Cong. Rec. 4255, April 25, 1947 ). The Con- ference Committee, it seems evident , gave that authority directly to the Board. It is significant that neither the proponents nor the opponents of the amendments at any time during the legislative deliberations ventured the suggestion that Section 10 (k) did not apply to all charges filed under Section 8 (b) (4) (D), or that it was intended to apply only to specialized situations such as "over -lapping certification," as contended by the Company here. See also Sen . Min. Rep. No. 105, pt. 2 , on S. 1126: "Section 10 (k) is to be read in connection with paragraph (4) of Section 8 (b) which makes it an unfair labor practice for a labor organization to strike in connection with a jurisdictional dis- pute . . Section 10 (k) in effect provides for compulsory arbitration of jurisdic- tional disputes . We agree with President Truman's statement in his State of the Union message that jurisdictional strikes are indefensible. We believe this provision of the bill to be sound , and are pleased to note that full opportunity is given the parties to reach a voluntary accommodation without governmental intervention if they so desire. We are confident that the mere threat of governmental action will have a beneficial effect in stimu- lating labor organizations to set up appropriate machinery for the settlement of such con- troversies within their own ranks, where they properly should be settled . . . [pp . 18, 19]" 7 See Sections 203 74-203.78 of the Board's Rules and Regulations , Series 5, as amended August 18, 1948. TNTERNAT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 657 d. The merits of the dispute During the course of the hearing the Respondents took the position that ILWU members had the right to load barges of the Company because such work is traditionally "longshore work," 8 and that they had a right to enforce such demand because of a contract to which Juneau Spruce Mills, Inc. (the Company's predecessor) was a party, and the obligations of which, according to the ILWU, the Company assumed. The Respondents also urge that, under Matter of Shipowners Asso- ciation of the Pacific Coast, etc.; the ILWU (Local 16) was the cer- tified bargaining representative for all longshoremen employed on the waterfront at Juneau, Alaska. In view of the express proviso contained in Section 8 (b) (4) (D) which permits activities other- wise proscribed if the "employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work," we must first determine whether the Company is, in fact, failing to conform to a Board certification.10 An examination of the cited case shows that in 1938 the Board cer- tified District 1 of the ILWU as the exclusive bargaining representa- tive of an appropriate unit consisting of : The workers who do the longshore work in the Pacific Coast ports of the United States for the companies which are members of Waterfront Employers of Seattle, Waterfront Employers of Portland, Waterfront Employers Association of San Francisco, Waterfront Employers Association of Southern California, and Shipowners' Association of the Pacific Coast . . 11 The description of the appropriate unit, it will be observed, refers to "The workers who do longshore work in the Pacific Coast ports of the United States . . ." (Emphasis added.) The work involved here is in Alaska. The membership of the employer-associations listed above is set out in Appendices B, C, D, E, F, and G to the Board decision. Neither the name of Juneau Lumber Mills, Inc., nor Juneau 8 The particular work tasks involved here consist of attaching tackle in bargeloajing operations , and of detaching it, and in the guiding and handling of lumber and supplies, and other articles, while loading and unloading seagoing barges and other water-borne carriers. Matter of Shipowners' Association of the Pacific Coast, Waterfront Employers Assoctia- tion of the Pacific Coast, the Waterfront Emploers of Seattle, the Waterfront Employers of Portland, the Waterfront Employers Association of San Francisco , the Waterfront Em- ployers Association of Southern California, 7 N L. R. B. 1002 ( 1938). 10 If , as aleged by the Respondents , the ILWU had , in fact, been certified by the Board as bargaining representative , the proviso in Section 8 (b) (4) (D ) would have been pertinent, and there might have been no need to consider any of the other contentions of the parties. 11 Matter of Shipowners' Association of the Pacific Coast, et al. ( supra ), at pp 1041. 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' Waterfront Employers Association, both of which existed at that time,, nor the name of the Company-which did not come into existence un- til 1947-appears on that list. In the list of ports covered by the certification set out in the decision, there is not a single one in either Alaska or British Columbia. It appears that in that case the Board certified the bargaining repre- sentative on the basis of the results of a referendum conducted by a caucus of International Longshoremen's Association (AFL) locals concerning affiliation with the C. 1. 0., and a check of designation cards of longshoremen at the several ports with employers' lists. Although the Juneau longshoremen voted in the union referendum, it does not appear that the Board, in arriving at its decision, received or con- sidered cards designating the ILWU as representative for the Juneau longshoremen as it did for the longshoremen in other ports. Nor, as indicated above, is any reference made in the Board's decision to the port of Juneau. We conclude that the certification in the Shipowners' Association case did not apply to the parties in the present proceeding. The Respondents also urge that the Company is the successor of Juneau Lumber Mills, Inc., and has therefore assumed the contractual obligations of the latter under the Juneau Waterfront Employers Association agreement. In this connection they rely on agreements between District 1 of the ILWU and the Waterfront Employers Asso- ciation of the Pacific Coast, dated October 1, 1938, allegedly executed as a consequence of the "certification" in the Shipowners' Association case, supra; these include an agreement between the ILWU and the Waterfront Employers Association of Juneau, dated May 6, 1938, and two subsequent agreements amending the initial agreement. All these agreements listed the Company's predecessor as a signatory water- front employer. Before considering the nature of the "contractual obligation," we must determine whether the Company assumed them. The record shows that the Company's predecessor did have a contract with the ILWU, through the Juneau Waterfront Employers Association, to use longshoremen whenever any vessel was loaded with lumber from the company dock, and that in accordance therewith members of the ILWU were employed on a "rotation principle" whenever such work was required. However, there was uncontroverted evidence that the Company's purchase agreement with the former owner expressly pro- vided that it did not assume the latter's liabilities, contracts, or labor agreements. The employees of Juneau Lumber Mills were advised that at the close of business April 30, 1947, their employment was terminated. The INTERNAT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 659' mill was shut down on May 1, 1947. On that day, the Company ac- cepted applications for employment, and hired the predecessors' former employee complement. It is well established that the pur- chaser of physical assets of a business may not be held to have assumed existing contract obligations to a union in the absence of a showing of acceptance of such liability.12 Moreover, there is no contention that the contract for the disposition of the physical assets of Juneau Lum- ber Mills, Inc. was not bona fide, or that there was any common identity between the purchaser and the seller.13 We find, therefore, that the- Company did not assume the agreements to which Juneau Lumber Mills, Inc. was a party signatory, nor the contractual obligations thereunder. Nor do we find any merit in the suggestion that the ILWU repre- sents a unit of longshoremen at the Company's plant even though the Company is not currently employing longshoremen, on the theory of "a continuing relationship." There was evidence that, on some occasions, when lumber was purchased by canners who sent for it in their own barges, it was cus- tomary for the purchasers to request the Company to engage long- shoremen members of the ILWU to load the boats. At such time, the- Company would call the ILWU hiring hall and request men for the- job. When the job was completed, the men would be paid off and their wages charged to the purchaser on the latter's invoice. How- ever, the ILWU has had no members among the Company's employees, since October 1947, and apart from the afore-nmentioned occasional recruitment of ILWU longshoremen, there has been no history of employment of ILWU members by the Company or of collective, bargaining between the ILWU and the Company. It is clear there- fore, that at no time since October 1947, including the date when the picketing began, has the ILWU had any representative interest among the Company's employees, or any representative standing supported by contract or Board certification. We turn now to the Respondent's contention that, in any event, ILWU members have a "right" to load the Company's barges because that work is "traditionally" longshore work. Inasmuch as we have found that the ILWU neither represented any of the Company's em- ployees nor had any certification, or contractual or other lawful basis upon which to predicate a right to the assignment of these particular work tasks, we find it unnecessary to consider the so-called tradition or custom alleged with respect to such work tasks. It is apparent from 12 See , e g, Empire Case Goods Workers Union v Empire Case Goods Company, 18 LRRM 2254 (N Y App Div, 1946 ) (271 App Div. 149) 13 Matter of Douglas Aircraft Co , Inc., 17 LRAM 1537 ( NWLB, i945) (27 W L B_ Rep 7 ) '660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the record that the Company has assigned the work to its own employ- ees. As we read Sections 8 (b) (4) (D) and 10 (k), these Sections do not deprive an employer of the right to assign work to his own em- ployees; nor were they intended to interfere with an employer's free- dom to hire, subject only to the requirement against discrimination as contained in Section 8 (a) (3) .14 In the instant case, where a union with no bargaining or any representative status made demands on the Company for the assignment of work to its members to the exclusion of the Company's own employees, the question of tradition or custom in the industry is irrelevant. Accordingly, we find that the Respondents are not lawfully entitled to require the Company to assign the work in dispute to members of the ILWU rather than to employees of the Company who are members of the Woodworkers. DETERMINATION OF DISPUTE On the basis of the foregoing findings of fact, and on the entire rec- ord in this case, the Board makes the following determination of the dispute, pursuant to Section 10 (k) of the amended Act: 1. International Longshoremen's and Warehousemen's Union, C. 1. 0., is not, and has not been, lawfully entitled to force or require Juneau Spruce Corporation, Juneau, Alaska, to assign its longshore work to the members of that labor organization rather than to the employees of the Corporation who have been and are members of the International Woodworkers of America, Local No. M-271, C. I. 0., or members of any other labor organization. 2. Within ten (10) days from the date of this Decision and De- termination of Dispute, the Respondents may notify, in writing, the Regional Director for the Nineteenth Region for the National Labor Relations Board as to the steps the Respondents have taken to comply with the terms,of this Decision and Determination of Dispute. MEMBER HOUSTON took no part in the consideration of the above Decision and Determination of Dispute. MEMBER MURDOCK, dissenting: In Matter of Moore Drydock Company,15 the only other case in which the Board has undertaken to "hear and determine" a dispute in a proceeding under Section 10 (k) of the Act, I dissented because I 14 This principle was enunciated in the following cases, among others , under the original Act and is equally valid under the amended Act : N. L. R. B. v. American Car & Foundry Co., 161 F. 2d 501 ; N. L. it. B. V. Anthony & Sons, 163 F. 2d 22 ( 82 App. D. C. 249 ) ; N. L. R. B. v Montgomery Ward & Co , 157 F. 2d 486; N. L. it. B. v. Robbins Tire Co., 161 F. 2d 798. 15 81 N. L. It. B. 1108. INTERNAT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 661 believed that the dispute that the Board was asked to decide was not a "jurisdictional" dispute within the meaning of the companion Section 8 (b) (4) (D) of the Act. In this case, too, I would decline to, deter- mine the dispute which was the subject of the hearing under Section 10 (k), but for a different reason. I concede, here, that there is a jurisdictional dispute within the purview of Section 8 (b) (4) (D), for there is a controversy as to whether the Company's bargeloading work should be assigned to lumber mill hands, represented by the Woodworkers, or to longshoremen, represented by the ILWU.16 How- ever, the employer is not neutral in this controversy. For this reason, in substantial accord with the position taken by Mr. Houston in his separate dissent in the Moore Drydock case, I hold that it is both futile and unnecessary 17 for the Board to make any determination in this proceeding. The Company has already made its own decision of the jurisdictional dispute in this case. It is not a neutral victim in the inter-union con- flict. The Company is determined that the bargeloading work shall be done by its mill hands, rather than by longshoremen; and it is not asking the Board to decide how the work in question should be as- signed as between these two classes of laborers. Clearly, if the Board were to decide, contrary to the Company, that the bargeloading job ought to be given to longshoremen because it is a longshoremen's func- tion, the Company would not reassign the work in accordance with that decision. This is evident from the fact that the Company refused to engage longshoremen when the issue first arose, although the Wood- workers itself made no claim to bargeloading tasks on behalf of the mill hands during the first 9 months of this controversy (from October 1947 to duly 1948), and even formally resolved that "this work belongs to the Longshoremen." 's Moreover, if the Board should decide this jurisdictional issue favorably to the ILWU, it would have no means 1e See my dissent in the Moore Drydock case , supra, for a discussion of what I regard as the essential ingredients of a jurisdictional dispute. 11 As I remarked in my dissent in the Moore Drydock case (footnotes 18 and 21 ), I do not believe that we must construe Section 10 (k), even though it contains the word "directed," as requiring the Board to make a determination under Section 10 (k) on every case where an 8 (b) (4) (D ) charge is filed. 'a It is true that a Company witness testified, without direct contradiction , that the agreement between the Woodworkers and the Company , executed in November 1947, was intended to cover bargeloading work. However, as the majority finds, the unit description In that contract , agreed to after some controversy over the question of bargeloading, was Identical with the clause found in a prior contract between the Woodworkers and the Company's predecessor, which was, at the same time , under contract to engage members of the ILWU for stevedoring work . In April 1948 , the Woodworkers at two meetings not only passed the resolution quoted above, but also voted to respect the ILWU's picket line, if one should be established . On April 7 , the Woodworkers and the ILWU in a joint meeting requested a representative of the Company to assign bargeloading work to longshoremen Finally, the very wording of the agreement of July 2, 1948, quoted in footnote 3 of the majority opinion , indicates an undertaking on the part of the Woodworkers to claim, for the first time, "the loading of Company owned or leased barges," as work not covered by the November 1947 contract. 838914-50--vol. 82---11 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of inducing the employer to comply. Such a decision, as I read the statute, would not even afford the ILWU a defense to the pending charge. under Section 8 (b) (4) (D), assuming that it continues to picket the employer in an effort to get the work for its members, and a complaint predicated on the charge is eventually issued by the Gen- eral Counsel.19 And if this interpretation is correct, it is clear that a Section 10 (k) determination sustaining the ILWU's position would not only be inoperative, it would also be incompatible with the broad interdict against jurisdictional strikes and boycotts contained in Sec- tion 8 (b) (4) (D). On the other hand, the majority's decision here, which merely rub- ber-stamps the employer's own prior determination of the issue, is, in my opinion, equally futile. For the ILWU is unlikely to "comply" with this decision by withdrawing its picket line, unless and until it is ordered to do so as the result of proceedings in the unfair labor prac- tice case. Furthermore, the majority's determination ignores the pur- pose of Section 10 (k) of the amended Act. My colleagues have de- cided a representation question that is not the real issue in this case, for they have determined that the ILWU has no just claim to the work in controversy because it does not represent the employees now performing that work-at the employer's insistence. This is not the type of decision that the Board was intended to render under Section 10 (k) of the Act (as distinguished from Section 9 (c), under which it is our function to resolve questions of representation). By Section 10 (k), as the legislative history demonstrates, and my colleagues of the majority acknowledge,20 the 80th Congress sought to give the Board the function of arbitrating jurisdictional disputes. We were to re- solve, particularly, the kind of craft union conflicts over jurisdiction that have so long vexed the building construction industry. But to arbitrate a jurisdictional dispute is to determine which of two or more trade or craft groups of workers, or their respective unions, ought to be assigned to perform certain disputed work .21 It is not to decide, as 19 Sec 8 (b) (4) (D) seems to interdict all strike or boycott activities for the object of forcing an employer to alter a work assignment except in one situation : "unless such em- ployer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work " However, like the majority, I do not read this quoted phrase as meaning that the Section 10 (k) proceeding is applicable only in cases where there are overlapping certifications or orders of the Board. ° See footnote 6, supra, also Mr. Houston 's dissent in the Moore Drydock case 21 Although the Act contains no standards to guide the Board in making such determina- tions, the Congress must have known that custom in the trade and in the area , the constitu- tions and peace treaties of the contending labor organizations themselves, the technological evolution of the disputed tasks, and like criteria, are those customarily employed by trade unions and inter-union arbitrators in adjusting jurisdictional differences . I am at loss to conceive of any other criteria that can be applied in arbitrating a jurisdictional dispute. For this reason , if I were to undertake to make a determination of the dispute in this case; I should not concur in the majority's refusal to consider the evidence of tradition and custom with respect to bargeloading work in the Juneau Area. INTERNAT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 663 the majority has done here, the non-arbitrable question as to which of two or more unions is the chosen representative of the employees who happen to be performing the disputed work. I believe that the majority here, as in the Moore Drydock case, fails to recognize the fundamental distinction between representation dis- putes and jurisdictional disputes; and wholly neglects to solve the jurisdictional dispute that is the real issue in this case by treating it as a representation question. This approach abdicates the Board's arbitration function. It means, among other things, that in any case where the employer has already allocated the work as between warring classes of workers-save only, I assume, where his work assignment violates a certification of representatives or order of the Board-the Board's "determination" under Section 10 (k) will not solve the juris- dictional issue. The foregone conclusion will always be that the work "rightfully" belongs to whatever employee group has already received it under the employer's own award. This result, in my opinion, nulli- fies the clear purpose of Section 10 (k) of the Act. In short, there are only two possible decisions that the Board can make in this case if it undertakes to make any determination : one favoring the ILWU, the other favoring the Woodworkers. The first is irreconcilable with Section 8 (b) (4) (D) ; the other subverts Sec- tion 10 (k). Neither serves any useful purpose, and neither adjudi- cates or facilitates the settlement of the basic controversy in this case- the controversy between the employer and the ILWU as to whether the latter may with impunity exercise its economic power to secure work for its members. I do not believe that the Board must seize either horn of this dilemma. In this case and others like it, where the employer is unwilling to submit the jurisdictional issue to the Board for arbitration, I believe that the Board should eschew the pretense of making a determination under Section 10 (k) of the Act. For these reasons, I hold that the Board should not make any de- termination at this stage of the case, but rather that it should quash the notice of hearing under Section 10 (k) and leave the General Counsel free to process the pending Section 8 (b) (4) (D) charge in his discretion.22 22 Member Houston is in substantial accord with these views and loins in this dissent. See his dissenting opinion in the Moore Drydock case.