United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada

542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD LOCAL 562, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL; CARPENTERS DISTRICT COUNCIL OF ST. LOUIS; LOCAL 527, CEMENT FINISHERS; LOCAL 110, INTERNATIONAL HOD CARRIERS', BUILDING & COMMON LABORERS' UNION OF AMERICA, AFL; LOCAL 396, INTERNATIONAL ASSO- CIATION OF BRIDGE, STRUCTURAL & ORNAMENTAL IRON WORKERS, AFL; LOCAL 1, INTERNATIONAL BROTHER- HOOD OF ELECTRICAL WORKERS, AFL and CHARLES E. MYLES. Case No. 14-CD-36. December 24, 1953 DECISION AND DETERMINATION OF DISPUTE This proceeding arises under Section 10 (k) of the Act, which provides that "Whenever it is charged that any person has en- gaged in an unfair labor practice within the meaning of para- graph (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 November 13, 1952, Charles E. Myles filed with the Regional Director for the Fourteenth Region a charge alleging that Local 562, United Association of Journeymen and Appren- tices of The Plumbing and Pipe Fitting Industry of the United States and Canada, AFL, herein called Plumbers; Carpenters District Council of St. Louis, herein called Carpenters; Local 527, Cement Finishers; Local 110, International Hod Carriers', Building & Common Laborers' Union of America, AFL; Local 396, International Association of Bridge, Structural & Orna- mental Iron Workers , AFL; and Local 1, International Brother- hood of Electrical Workers, AFL, have engaged in and are en- gaging in certain activities proscribed by Section 8 (b) (4) (D) of the Act. It was alleged, in substance, that the Plumbers and the Carpenters had induced and encouraged employees of H. A. Dailey , Inc., herein called Dailey , to engage in a concerted refusal to work in the course of their employment with an object of forcing or requiring Northwest Heating Company, herein called Northwest, to assign particular work to members of the Plumbers rather than to its own employees who are members of Local 2, International Union of Operating Engineers, AFL, herein called the Operating Engineers. Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.71 and 102.72 of the Board's Rules and Regulations, the Regional Director investigated the charge and provided for an appropriate hearing upon due notice to all the parties. The hearing was held before Harry G. Carlson, hearing officer, on July 2, 9, and 10, 1953. All parties, except Local 110, Inter- national Hod Carriers', Building & Common Laborers' Union of America, AFL, appeared at the hearing and were afforded full op- portunity to be heard, to examine and cross - examine witnesses, and to adduce evidence bearing on the issues. The rulings of the hearing officer made at the hearing are free from prej- 107 NLRB No. 134. LOCAL 562, UNITED ASSOCIATION OF JOURNEYMEN, ETC 543 udicial error and are hereby affirmed . i The charging party filed a brief with the Board. Upon the entire record in the case , the Board makes the fol- lowing: FINDINGS OF FACT I. THE BUSINESSES OF NORTHWEST AND DAILEY Northwest Heating Company , a partnership comprised of Charles E . Myles , the charging party , and Emanual Schermer, is engaged in the business of installing heating , refrigeration, and air - conditioning equipment . Its principal place of business is in St. Louis , Missouri . During the last fiscal year , Northwest together with Lloyds ', Inc., a Missouri corporation in which Myles and Schermer are the principal stockholders , performed services and furnished materials on jobs inthe State of Illinois valued in excess of $ 25,000. H. A. Dailey , Inc., is a Missouri corporation which , during the past year , furnished services and materials in excess of $60,000 in value to a concern over which we had previously as- serted jurisdiction . Dailey is presently engaged in performing services for the Army Records Center which when completed will total $ 300,000 in value. Accordingly , the Board finds that Dailey clearly is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Local 562, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL, Carpenters District Council of St. Louis, and Local 2, International Union of Operating Engineers , AFL, are labor organizations within the meaning of the Act. III. THE DISPUTES A. The facts The Operating Engineers was certified as the collective- bargaining representative of Northwest ' s employees on October 16, 1951 (Case No. 14 - RC-1583 ) and presently represents those employees . A dispute of long standing exists between the Plumbers and the Operating Engineers , the Plumbers main- taining ( 1) their exclusive right to the installation of heating, refrigeration , and air - conditioning equipment in new construc- tion; and ( 2) the absence of any such right on the part of the 'The charging party requested that the charge be withdrawn as to all parties except the Plumbers and the Carpenters . The hearing officer approved that request As the evidence adduced at the hearing in no way connects these other local unions to the strike activity alleged to be violative of Section 8 (b) (4) (D), we affirm the hearing officer ' s action. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Operating Engineers , other than to do repair work on such equipment . As a result of this dispute , the Plumbers on 2 prior construction jobs caused or threatened a walkout of some of the members of the building trades crafts in protest of Northwest's work being done by members of the Operating Engineers, rathen than members of the Plumbers. An employee on 1 of those jobs testified that the electricians , in walking off the job 30 minutes after a Plumbers' representative appeared, "said they were going fishing , they were tired of working." In November of 1952, Northwest , Lloyds', Inc., and Dailey were engaged in construction work for Brown & Sons Realty Co., herein called Brown , the general contractor on a con- struction job at 8230 Forsythe Ave., Clayton, Missouri , herein called the Forsythe job. Dailey employed carpenters who were represented by the Carpenters. 2 Payne, secretary of the St. Louis Building and Construction Trades Council, testified that at a meeting of the Council on November 12, a Plumbers ' representative reported that the Plumbers were experiencing difficulties on several jobs. According to Payne, no mention was made of the Forsythe job.3 The union representatives present agreed to render all possible assistance tothe Plumbers . ACarpenters' representa- tive was present at that meeting . Both the Carpenters and the Plumbers are members of the Council, while the Operating Engineers is not. On November 12, 1952, Lasky, secretary -treasurer of Brown , learned from Dailey's Foreman DeClue that he had "orders" that the carpenters would not work the next day." DeClue stated that he was not certain as to the cause of the difficulty. Lasky then called Payne, who stated that the matter concerned the Plumbers. On Payne's suggestion , Lasky spoke with Henry, a business agent of the Plumbers . In response to Lasky's inquiry as to why there was to be a work stoppage on the Forsythe job, Henry stated that the heating and air- conditioning work was being done by men from a union not authorized to do that type of work , and that only the Plumbers were authorized by the AFLto do that work on new construction. Henry further explained that men were to be pulled off the Forsythe job and that the only way such a walkout could be averted was for Brown , the general contractor , to let this type of work to a subcontractor employing members of the Plumbers. 2 While the carpenter foreman was a member of Local 5 of the Carpenters , the record fails to establish to which local the carpenters themselves belonged The carpenters, how- ever , were subject to the Carpenters' working rules while on the Forsythe job. 3 The minutes of that meeting apparently make no reference to the Forsythe job 4DeClue also told Lasky that the cement finishers would not be on the job the next day. After speaking with DeClue, Lasky received notice from the electrical subcontractor that the electricians would not be on the job the following day as "they had received certain instructions that they were not to report for work." LOCAL 562, UNITED ASSOCIATION OF JOURNEYMEN , ETC. 545 DeClue5 testified that Carpenters ' Business Agent Reiter6 came to the Forsythe job on Wednesday , November 12, and told him there was some kind of "trouble about heating" ° and that the carpenters should go "fishing" for a couple of days. DeClue, upon receiving these instructions from Reiter, instructed the carpenters to report to another jobthe next day. The carpenters did not work at the Forsythe job the following day. Indeed , they did not report to that job until November 17, the following Monday. DeClue testified that on November 17, " [Reiter ] came out again and said that , as far as he knew, there hadn't been anything settled ." Reiter walked around and spoke to some of the carpenters on this occasion . DeClue also spoke with the carpenters , telling them that the union "trouble isn't settled so we just have to get off." All the carpenters then left the Forsythe job. Other groups , electricians and cement finishers , also appear to have left the job . According to DeClue, Reiter did not mention the dispute over the installation of equipment , but DeClue presumed that was the reason behind Reiter's instructions . At the time the carpenters left the job, they apparently were in ignorance of the purpose behind the stoppage. Several days later , the carpenters returned to work on the Forsythe job. As of the time of the hearing, there had been no adjustment of the dispute between the Plumbers and the Operating Engineers . Nor has the Plumbers retracted their demand that Brown let the disputed work to a subcontractor hiring its members. Northwest , however , has continued its work on the Forsythe job. Notwithstanding this, no subsequent stoppage has occurred . At the time of the hearing, Northwest was nearing completion of its work on the Forsythe job. B. Contentions of the parties The charging party contends that the Plumbers and the Carpenters induced Dailey's employees to strike for the pur- pose of forcing Brown, the general contractor , as well as 5 DeClue was a member of Local 5 of the Carpenters and was subject to the latter's 1949 Working Rules, which stated in part: Rule 10--Every member shall cease work when ordered to do so by an authorized official [ business agent] of the District Council Rule 13-- No member shall . . work with a nonunion man. 6Reiter's duties are set forth with particularity in the Carpenters ' constitution and bylaws, which state in part: Section 18- -Business agents shall be required to .. , enforce the local Trade Rules of the organization ... They shall have the power to order all men to quit work on a job where trouble exists. . . . TMyles had already informed DeClue that the "trouble" concerned jurisdictional problems over the installation work. DeClue admits that he later became aware that the difficulty was one between the Plumbers and the Operating Engineers 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Northwest, to assign the disputed installation work through another subcontractor to members of the Plumbers rather than to Northwest's own empoyees who were represented by the Operating Engineers, thereby violating Section 8 (b) (4) (D) of the Act. The Carpenters contends that it did not induce or participate in any work stoppage at the Forsythe job, and-, even assuming that fact, its purpose was not to force a change in Northwest's assignment of work, and that, in these circumstances, it did not violate Section 8 (b) (4) (D). The Plumbers contends that it did not induce or participate in the Forsythe work stoppage, and even assuming so, its activity was not meant to cause a reassignment of work but only to cause Brown to sever its contract with Northwest and let out the work to a new subcontractor. It is argued by the Plumbers that this conduct, at most, might result in a viola- tion of Section 8 (b) (4) (A), not of Section 8 (b) (4) (D). C. Applicability of the statute Before we may proceed with a determination of a dispute pursuant to Section 10 (k) of the Act, we must be satisfied that reasonable cause exists to believe that Section 8 (b) (4) (D) of the Act has been violated.8 For the foregoing section to be applicable, two elements are essential: (1) The responsibility of the Plumbers and the Carpenters for the work stoppages; and (2) the existence of the proscribed object behind such stoppages. These elements will be discussed in the following paragraphs. 1. Responsibility As indicated above, both the Plumbers and the Carpenters contend that they are in no way responsible for the work stop- 8See, e.g., Local 26, International Fur & Leather Workers (Winslow Bros. & Smith Co ), 90 NLRB 1379; Truck Drivers and Chauffeurs Union, Local 705 (Direct Transit Lines), 92 NLRB 1715; International Hod Carriers Local 231 (Middle States Tel. Co. of Ill.), 91 NLRB 598; Longshoremen's Locals 13 & 48 andSailors Union of Pacific (W. R. Chamberlain & Co.), 94 NLRB 388. The relevant portions of Section 8 (b) (4) (D) are as follows: 8 (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 concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services where an object thereof is. .. (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 an order or certification of the Board determining the bargaining rep- resentative for employees performing such work. . LOCAL 562, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 547 pages on the Forsythe job. On the one hand, the Plumbers clearly did not engage in the Forsythe job stoppages, there being no Plumbers ' members on that job. Nor did any Plumbers' representative induce or encourage Dailey's employees to leave the Forsythe job. However , there is substantial evidence that the Plumbers wished to remove the Operating Engineers from the Forsythe job. Indeed , on prior occasions , Plumbers' representatives had actually caused or threatened walkouts on other jobs on which Northwest was working . Moreover, the Plumbers alone had a dispute with the Operating Engineers and with Northwest. On the other hand, the Carpenters unquestionably induced Dailey's employees to leave the Forsythe job.9 Its object in doing so, however , is obscure . Thus, neither the Carpenters' representative nor the carpenters themselves communicated the object of the stoppages to Brown, Dailey , or Northwest. The Carpenters in fact had no dispute with any employer on the Forsythe job. Only by a realistic appraisal of the actions of the two Unions in relation to their overall objective can the responsibility issue be determined . A consideration of such actions leads to the conclusion that there is necessarily a community of interest between the activities of the Plumbers onthe one hand and those of the Carpenters on the other . Thus, it appears that the Carpenters ' strike action depends for its effectiveness upon the communication of the strike ' s objective by the Plumbers. Similarly, the Plumbers ' threats and demands depend for their realization upon the exercise of economic pressure by the Carpenters on the job site. Furthermore , a consideration of the events on the day before the first Forsythe job stoppage illustrates the joint course of action of the Unions . Thus, on November 12, at a meeting of the Building and Construction Trades Council , the union representatives present, including a Carpenters' representative, agreed to assist the Plumbers in certain jurisdictional dis- putes . The minutes of that meeting stated in part: After considerable discussion it was agreed by all [union] delegates present to endeavor to render [to the Plumbers] all assistance possible. That very day Dailey ' s Foreman DeClue received instructions from a Carpenters ' business agent that Dailey ' s employees 9The Board observed in the Amalgamated Meat Cutters , et. al., (The Great Atlantic & Pacific Tea Co.), 81 NLRB 1052 at 1057: A strike call may be given in forthright fashion, or informally in a manner which is understood by the initiated . A strike may be as effectively signaled by a simple state- ment that an employer has refused to sign a collective bargaining contract when the union policy is "No contract, no work," as by a direct strike call from the union leader- ship to the union members. . The critical question is not how the [union] gave the strike call, but whether , no matter how, they did give it. (Emphasis added.) 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should not report to work on the Forsythe job the following day. When DeClue so informed Lasky, the latter called Payne, the Council's representative, who in turn referred Lasky to the Plumbers. Lasky then spoke with Henry, abusiness agent of the Plumbers, who informed Lasky that the stoppage would occur unless Brown, the general contractor, agreed by severing its relationship with Northwest, to let the disputed work to a sub- contractor hiring Plumbers. This evidence establishes not only the causal relation between the stoppages and their objective, but also the joint nature of the Plumbers' and Carpenters' actions. Accordingly, we find that the separate actions taken by the Plumbers and the Carpenters, respectively, were intended to be mutually supporting, thus resulting in joint responsibility for each other' s acts) 2. The proscribed object We believe that the Plumbers' and the Carpenters' endeavors went beyond a mere demand that Brown, the general contractor, sever its contract with Northwest and let the disputed work to a new subcontractor. The end result sought by the stoppages was disclosed by Lasky's testimony. As already noted, Henry explained to Lasky that the disputed work was being done by men from a union (Operating Engineers) not authorized to do that type of work and that a stoppage would occur unless Brown let that work to a subcontractor employing members of the Plumbers. Thus, the Plumbers and the Carpenters attempted to force Brown to assign the disputed work to members of the Plumbers rather than to the employees of Northwest who were represented by the Operating Engineers. That this factual situation falls within the purport of Section 8 (b) (4) (D) of the Act is hardly opentoquestion. Prior Board decisions so held.'1 In addition to its immediate effect upon Brown we believe that the Unions' conduct, realistically viewed, was aimed also at forcing Northwest itself to assign the disputed work to the Plumbers.12 Moreover, the fact that the charging party might 10 See, e.g , Los Angeles Building & Construction Trades Council, AFL, et. al (Standard Oil Co.), 105 NLRB 868 (Member Murdock dissenting) "United Brotherhood of Carpenters and Joiners of America, Local 581 (Ora Collard), 98 NLRB 346; Local Union No 553 (Alton Water Co.), 106 NLRB 186 (Member Houston dis- senting) In these cases, the Board found reasonable cause to believe that there were violations of Section 8 (b) (4) (D), although in the one case (Ora Collard) the union sought to compel a direct assignment of work to employees other than those to whom the work had been in- directly assigned, while in the other case (Alton Water Co.) the union sought to force an indirect assignment of work to employees other than those to whom the work had been directly assigned We find that the principle of the foregoing cases is equally applicable to a situation like the present where a union seeks to compel an indirect assignment of work to employees other than those to whom the work had been indirectly assigned. 12 The charging party would further prohibit union pressure against Swantner Construction Co and "any other employer." As to Swantner Construction Co., the record fails to show that either the Plumbers or the Carpenters induced or encouraged Swantner's employees to engage in a stoppage The Plumbers' pressure was directed solely at Swantner itself. As this situation does not fall within Section 8 (b) (4) (D)'s proscription, we conclude that no LOCAL 562, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 549 have had a different remedy under Section 8 ( b) (4) (A) in no way deters the Board from proceeding under Sections 10 (k) and 8 ( b) (4) (D).13 These sections , 8 (b) (4) (A ) and 8 (b) (4) ( D), are not mutually exclusive. In view of the foregoing , we conclude that the record before us establishes that there is reasonable cause to believe that the Plumbers and Carpenters induced and encouraged the employees of Dailey to engage in a concerted refusal to per- form services in order to force or require either Brown or Northwest to assign the disputed work to members of the Plumbers although this work had been assigned to employees who were members of the Operating Engineers . Such factual circumstances are sufficient to invoke the Board ' s jurisdiction to hear and determine a dispute within the meaning of Sections 10 (k) and 8 ( b) (4) (D) of the Act. We find that this is a dispute within the meaning of Sections 10 (k) and 8 (b) (4) (D) of the Act and, contrary to the Unions ' contentions , that it is properly before us for determination. D. Merits of the dispute At the time the Plumbers and the Carpenters sought the assignment of the disputed installation work for members of the Plumbers, Brown had assigned such work to Northwest who in turn had assigned that work to its own employees represented by the Operating Engineers . Neither Brown nor Northwest had any bargaining relationship with the Plumbers. The dispute in essence was therefore over an employer's as- signment of work to members of one labor organization rather than to members of another labor organization. It is now well established that an employer is free to make such assignments free of strike -pressure by a labororganiza- tion, "unless such employer is failing to conform to an order or certification of the Board determining the bargaining rep- resentative for employees performing such work.t'ld Neither the Plumbers nor the Carpenters claims to be the certified bargaining representative for employees performing heating, air-conditioning , and refrigeration equipment installation work. We find , accordingly , that the Plumbers and the Carpenters were not lawfully entitled to require Brown and Northwest to assign the disputed installation work to members of the dispute within the meaning of the Act was created by the Plumbers ' demands on Swantner Furthermore, there is no evidence of any present dispute as to "any other employer," and accordingly that contention of the charging party is without merit. See District No 9, IAM, AFL (Anheuser- Bush, Inc.), 101 NLRB 346. 13Section 8 (b) (4) (D ) does not limit its coverages to employees of a particular employer. Other statutory language clearly manifests a congressional intent not to delimit the scope of Section 8 (b) (4) (D). See Austin Co., 101 NLRB 512 Accordingly , secondary activity can, without question, fall within Section 8 (b) (4) (D)'s proscription MPile Drivers , Bridge, Wharf and Dock Builders , United Brotherhood of Carpenters and Joiners of America, Local Union No 34, AFL (Klamath Cedar Company ), 105 NLRB 562; Juneau Spruce Corporation, 82 NLRB 650. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plumbers rather that to employees of Northwest who are members of the Operating Engineers . However, we are not, by this action , to be regarded as "assigning " the work in question to the Operating Engineers or to Northwest.5 DETERMINATION OF DISPUTE Upon the basis of the foregoing findings of fact, and upon the entire record in this case , the Board makes the following de- termination of dispute , pursuant to Section 10 (k) of the Act: 1. Local 562, United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting Industry of the United States and Canada , AFL, and Carpenters District Council of St. Louis are not and have not been lawfully en- titled to force or require either Brown & Sons Realty Company or Northwest Heating Company to assign the heating , refrigera- tion, and air - conditioning equipment installation work in con- nection with the Forsythe Avenue project to members of the Plumbers rather than to members of Local Z, International Union of Operating Engineers, AFL. 2. Within ten ( 10) days from the date of this Decision and Determination of Dispute , the Respondents ( Plumbers and Carpenters ) shall notify the Regional Director for the Four- teenth Region in writing as to what steps the Respondents have taken to comply with the terms of this Decision and De- termination of Dispute. Chairman Farmer , concurring: I concur in the majority holding in this case . I am convinced that there is reasonable cause to believe that there has been a violation of Section 8 (b) (4) (D ) and, therefore , I join in the ruling that the Plumbers and Carpenters were not lawfully en- titled to the disputed work over which they claimed jurisdiction. I feel , however , that I should comment on the views expressed in the dissent by Member Murdock. I take it that my dissenting colleague would dismiss this proceeding because he believes that it is "futile and unnecessary " for the Board to make any "determination" of the dispute . Since this strikes at the very efficacy of the established procedure for handling jurisdic- tional disputes , my colleague ' s statement has serious implica- tions which trouble me greatly. This sincere expression coming from the Member who has had the longest service of any Board Member raises questions going to the heart of our procedures which deserve thoughtful consideration. At the outset , however , I do not believe that doubt , however well founded, as to the efficacy of our remedy in this type of case, would justify us at this stage indismissing the proceeding. This is a Section 10 (k) proceeding, and, as I read the statute, the Board is "directed " to hear and determine the dispute, '5 Los Angeles Building and Construction Trades Council, AFL (Westinghouse Electric Corporation), 83 NLRB 477. LOCAL 562, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 551 and this seems to me clearly to deprive us of the discretion to do what Member Murdock thinks is appropriate. But, while this statutory mandate is dispositive of this case, it does not resolve the more basic questions which the dissent raised in my mind. Like my dissenting colleague , I, too, have grave misgivings as to the effectiveness of the 10 ( k) procedure in this type of case. As Member Murdock points out, there was never any real question as to whichof the disputing unions was entitled to perform the disputed work. The Operating Engineers had been certified by the Board to represent the employees of Northwest , the subcontractor which had contracted to do the work for Brown & Sons , the general contractor. So long as Northwest continued as the subcontractor , no question could be raised as to the right of the members of Operating Engineers to perform the disputed work. The Plumbers' Union had no employees on the job who could do the work , and there- fore could accomplish their objective only by obtaining a change in subcontractor or by forcing Northwest to discharge its operating engineers and hire plumbers. It is the latter which brings this case within Section 8 (b) (4) (D), but the former clearly brings it within Section 8 (b) (4) (A). Viewed realistically , this was primarily a secondary strike in violation of 8 (b ) (4) (A) and, in my opinion , could have been remedied more quickly and effectively under that subsection. I say this because, in actual practice , Section 8 (b) (4) (A) provides a quicker and more effective relief from this form of unlawful conduct. Under that section , provision is made for a mandatory injunction and the immediate issuance of a com- plaint , which immediately sets in motion machinery for the ultimate and final resolution of the dispute . In the meantime, unlawful conduct is enjoined , and thus the rights of injured parties receive immediate protection as a matter of law. If the law has been violated, as determined in our unfair labor practice proceeding , there is eventually enforced by the court an order prohibiting the unfair practice under pain of being in contempt of the court ' s decree. The 10 (k) procedure is by no means as certain or as con- clusive in its result. In the first place, immediate relief in the form of an injunction is not mandatory but involves an element of discretion since the statute prescribes that it be used by the General Counsel where he deems it appropriate to do so. Also, as Member Murdock points out, the Board ' s resolution of the dispute has no binding effect even when it is eventually made, which, in this case, will be more than a year after the charge was filed. Following issuance of this decision, if the parties do not accept our decision , the General Counsel will then issue a complaint and then finally set in motion an unfair labor practice proceeding which could have been instituted under Section 8 ( b) (4) (A) a year ago. I am, of course , not aware why this case took one route rather than the other , and I recognize that it is the exclusive function of the General Counsel to determine what violations are to be alleged in the complaints 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which he issues . However, the General Counsel, in the administration of his difficult task of implementing Board policy, is entitled to a plain and unequivocal statement from the Board , as, indeed , are the parties who appear before us . It is for this reason that I address myself to what I consider to be a mistaken choice of remedies in this case. It seems to me, therefore , that the Section 10 (k) procedure should , wherever possible , be reserved for use in cases of jurisdictional disputes which do not also involve violation of other subsections of Section 8 (b). Member Murdock , dissenting: As found by the majority , the Carpenters , at the instigation of the Plumbers , struck Dailey , a subcontractor of Brown & Sons, the general contractor , to force Brown & Sons to replace subcontractor Northwest , whose employees are represented by the Operating Engineers , with any other subcontractor who would hire employees represented by the Plumbers, with the object of requiring Northwest to hire employees represented by the Plumbers . A contract exists between Northwest and the Operating Engineers, which had been certified by the Board on October 16, 1951, as the bargaining representative of North- west's employees. Even assuming , as found by the majority , that the evidence conclusively proves the necessary causal connection, pro- scribed objective , and the existence of a "jurisdictional dispute," I would hold , in accord with my dissenting opinion in Juneau Spruce Corporation , 82 NLRB 650, 660, thatitis both futile and unnecessary for the Board to make any "determina- tion" in this proceeding. By Section 10 (k), as the legislative history shows , Congress intended to give the Board the authority to arbitrate jurisdic- tional disputes , that is, to determine which of two or more trade or craft groups of workers or their respective unions ought to be assigned certain disputed work when the employer is neutral and indifferent to which of the organizations performs the work. In this case it is not merely unnecessary for the Board to decide what group of employees should do the disputed work but, in fact, that issue has already been decided . The decision , already made, that the operating engineers shall do the job rests not only upon Northwest ' s assignment of the work but, indeed, upon the ultimate fact that by virture of Board certification Northwest is under a statutory obligation to deal with the Operating Engineers and not with the Plumbers. I have serious doubts that Congress intended for the Board to conduct any proceeding so futile and inoperative as the "Decision and Determination of Dispute " issued here indicates. As true as it was in Juneau Spruce, but even more obvious here, the "decision " of the Board "has no more effect on the legal position of the parties than an informal advisory opinion, such as any Regional Director might render in a conference looking toward settlement of any unfair labor practice case , indicating LOCAL 562, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 553 that there is probable merit" in Northwest's charge that the Plumbers and Carpenters have violated the Act. As I stated in Moore Drydock Company, 81 NLRB 1108 at 1121, "It does not operate either as an order abating unfair labor practices, or as a certification of representatives defining future legal relation- ships of the parties. Neither is it a disposition of any collateral issue not directly involved in the unfair labor practice case. It serves no purpose whatsoever that I can perceive. Section 10 (k) seems to contemplate that the Board shall issue some sort of a recommendation or directive calling for action by the parties, for it provides, in part, 'Upon the compliance by the parties to the dispute with the decision of the Board . . . such charge [that is, the 8 (b) (4) (D) charge] shall be dismissed.' " In this case, however, the Board's "decision" onlyimplies that Carpenters and Plumbers may have done something wrong. It does not specify what the "parties to the dispute"- -whoever they may be--should do, by way of "compliance," that will result in automatic dismissal of the charge. I find it difficult to believe that Congress actually intended the Board to waste its time and resources and those of the parties in such useless procedure. It is highly gratifying to me that the Chairman shares my view that this "determination" is futile. I cannot,- however, agree with him that the wording of Section 10 (k) clearly deprives the Board of discretion in the application of the pro- cedures provided bySection 10 (k). Idoubtthat Congress, under Section 10 (k), intended for the Board to engage in a proceeding as futile as this one despite the phrase in Section 10 (k) stating that the Board is "empowered and directed to hear and de- termine the dispute out of which such unfair labor practice shall have arisen." (Emphasis added.) As I stated in Moore Drydock, "It is a familiar principle of statutory construction that words used in a statute should not be literally construed, even when their literal purport is clear, if such construction would lead to absurd and incongruous results not intended by the legisla- ture. Ozawa v. United States, 260 U. S. 194; United States v. American Trucking Association, 310 U. S. 534." In fact, the majority recognizes this axiom of statutory interpretation when it states, "Before we may proceed with a determination of a dispute pursuant to Section 10 (k) of the Act, we must be satisfied that reasonable cause exists to believe that Section 8 (b) (4) (D) of the Act has been violated." In effect, the majority is thus predicating this proceeding upon a finding that the charge has prima facie merit. This is done--and properly so within the principles laid down by the Court of Appeals for the District of Columbia in Herzog v. Parsons, 181F. 2d 781--des- pite the "mandatory" language of the clause immediately pre- ceding the portion of Section 10 (k) quoted above: "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. . . . " (Emphasis added.) 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As I have indicated above, the legislative history demon- strates that Congress intended by Section 10 (k) to give the Board the function of arbitrating jurisdictional disputes. As I stated in my opinion in Juneau Spruce, although the Act con- tains no standard to guide the Board in making such deter- mination, the Congress must have known that custom in the trade and in the area, the constitutions and agreements of the contending labor organizations themselves, the technological evolution of the disputed task, and like criteria are those customarily employed by trade unions and interunion arbi- trators in adjusting jurisdictional differences. In this case there not only appears to have been a jurisdictional award by the parent organization, but a Board certification also is involved. If I were to undertake to make a determination in this case, I could not concur in the majority's failure to consider such factors. However, for the reasons appearing above, I would hold that the Board should not make any determination at this stage of the case, but rather that it should quashthe 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. AMERICAN STEEL BUCK CORPORATION and ARCHITEC- TURAL & ENGINEERING GUILD, LOCAL 66, AMERICAN FEDERATION OF TECHNICAL ENGINEERS, AFL, Peti- tioner. Case No. 2-RC-5760. December 24, 1953 AMENDED AND SUPPLEMENTAL DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIDES Pursuant to a Decision and Direction of Election,' issued on July 23, 1953, an election by secret ballot was conducted on August 20, 1953, under the direction and supervision of the Regional Director for the Second Region, among the employees of the Employer in the unit found appropriate in the Decision. At the conclusion of the election, the parties were furnished a tally of ballots, which showed that of approximately 7 eligible voters, 5 cast valid ballots for the Petitioner, 2 cast valid ballots against the Petitioner, and 3 ballots were challenged. As the challenged ballots were sufficient in number to affect the results of the election, the Regional Director, pur- suant to Section 102.61 of the Board's Rule.s and Regulations, conducted an investigation of the challenged ballots. On September 11, 1953, the Regional Director issued and duly served upon the parties his report on challenged ballots, recommending that the Board sustain the challenges to the ballots of Norman Ross, Herman Starobin, and A. David Ross. Thereafter, on September 16, 1953, the Employer filed ex- I Not reported in printed volumes of Board Decisions. 107 NLRB No. 121.