Lathers' Local Union No. 252

LATHERS' LOCAL UNION NO. 252 871 ercised improper influence over the Employer's employees. Other than King's appearance at the polls, the Employer did not allege any specific activities by King in behalf of the Petitioner. In view of the foregoing and the entire record,3 we hereby over- rule the Employer's objections and shall certify the Petitioner as the representative of the employees in the appropriate unit. [The Board certified International Brotherhood of Electrical Workers, AFL-CIO, as the designated collective-bargaining repre- sentative of the Employer's employees at Station WDXI and Sta- tion WDXI-TV in Jackson, Tennessee, in the unit heretofore found appropriate.] 3 As the objections and exceptions do not raise substantial issues of fact, we deny the Employer 's request for it hearing. Lathers' Local Union No. 252, Wood, Wire and Metal Lathers' International Union, AFL-CIO and James I. Barnes Construc- tion Company. Cases Nos. 21-CC-268 and 21-CD-43. May 12, 1958 DECISION AND ORDER On January 9, 1958, Trial Examiner Maurice M. Miller issued his Intermediate Report in this consolidated proceeding, finding that the Respondent had engaged in an unfair labor practice within the meaning of Section 8 (b) (4) (A) of the Act, but not within the meaning of Section 8 (b) (4) (D), as alleged in the complaint, and recommending that they cease and desist therefrom and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto. Ile also recommended that the complaint be, dis- missed in part. Thereafter, the Respondent filed exceptions, and a brief in support thereof. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with the case to a three-member panel [Chairman Leedom and Members Bean and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions 1 and brief, and the entire record in the 'In the absence of exceptions thereto, we adopt the Trial Examiner 's finding that the Board's Rules and Regulations in effect at the time of the issuance of his Intermediate Report required him to recommend the dismissal of the General Counsel 's complaint herein insofar as it alleges a violation of Section 8 (b) (4) (D ) based on conduct inconsistent with an award by the National Joint Board for Settlement of Jurisdictional Disputes. Cf. Wood, Wire and Metal Lathers International Union, et at. ( Acoustical Contractors Association of Cleveland ), 119 NLRB 1345 , and the amendments to the Rules and Regulations , Series 6 , as amended , Sections 101.28, 101 .30, 101.31, 102 . 73, and 102.75, 120 NLRB No. 123. 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with minor modifications in the Order. ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent Lathers' Local Union No. 252, Wood, Wire and Metal Lathers' International Union, AFL-CIO, and its officers, agents, representatives, successors, and assigns, shall : 1. Cease and desist from engaging in a strike, or inducing or en- couraging the employees of James I. Barnes Construction Company or any employer other than Power Brothers, Inc., to engage in a strike or 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 to force or require James I. Barnes Construction Company, Cramer Acoustics, or any other employer or person to cease doing business with Power Brothers, Inc., or any other person. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its office and meeting halls in San Bernardino and Riverside Counties, California, copies of the notice attached hereto marked "Appendix.' 12 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by a representative of the Respondent, be posted by the Re- spondent immediately upon receipt thereof, and be maintained by it for sixty (60) consecutive days thereafter in conspicuous places, in- cluding all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that these notices are not altered, defaced, or covered by any other materials. (b) Mail to the Regional Director for the Twenty-first Region signed copies of the notice, for posting by James I. Barnes Construc- tion Company and Cramer Acoustics at the California Electric job site in San Bernardino and Rialto, California, for sixty (60) consecu- tive days in places where notices to employees of these companies and of their various subcontractors are customarily posted, if the named companies are willing to do so. effective February 28, 1958 We agree with the Trial Examiner 's conclusion that it is unnecessary here to consider that award or the obligations imposed by the procedural rules and regulations of the Joint Board with regard to the responsibility of the contractor and subcontractors for specific assignments as it affects the Section 8 (b) (4) (A) viola- tion herein. Cf. Acousti Engineering of Alabama, Inc., 120 NLRB 212, footnote 1; Wendnagel ct Company, 119 NLRB 1444. 2 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." LATHERS' LOCAL UNION NO. 252 873 (c) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days from the date of this Decision and Order, as to what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of the complaint that the Respondent violated Section 8 (b) (4) (D) of the Act be, and they hereby are, dismissed. APPENDIX NOTICE TO ALL OUR OFFICERS, REPRESENTATIVES, AGENTS, AND MEM- BERS AND TO ALL EMPLOYEES OF THE JAMES I. BARNES CONSTRUCTION COMPANY, CRAMER ACOUSTICS, AND THEIR VARIOUS SUBCONTRACTORS Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, you are notified that : WE WILL NOT engage in a strike, or induce or encourage the employees of the James I. Barnes Construction Company or any employer other than Power Brothers, Inc., 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 to force or require the James I. Barnes Construction Company, Cramer Acoustics, or any other employer or person to cease doing business with Power Brothers, Inc., or any other person. LATHERS' LOCAL UNION No. 252, WOOD, WIRE AND METAL LATHERS' INTER- NATIONAL UNION, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges duly filed and served, the General Counsel of the National Labor Relations Board, in the name of the Board, caused the Regional Director for its Twenty-first Region, Los Angeles, California, to issue a consolidated complaint and notice of hearing on August 21, 1957, against Lathers' Local Union No. 252, Wood, Wire and Metal Lathers' International Union, AFL-CIO, to be designated as the Respondent Union in this report, under Section 10 (b) of the National Labor Rela- tions Act, as amended, 61 Stat. 136. The designated labor organization was charged, therein, with the commission of unfair labor practices under Section 8 (b) (4) (A) and (D) of the statute. Copies of the consolidated complaint, the notice of hearing, and the charges were duly served upon the Respondent Union and James I. Barnes Construction Company, to be designated as the Company or Barnes, alternatively, in this report. In the consolidated complaint, the General Counsel alleged, in substance, that: (1) The Company is presently engaged, as a general contractor, in the construction 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of certain facilities for the use of the California Electric Power Company, to be designated as California Electric hereinafter, (2) the Company has, in the perform- ance of its obligation, subcontracted the dry-wall construction work required on the California Electric job to Cramer Acoustics, otherwise to be designated as Cramer in this report, and this enterprise has subcontracted the work of dry-wall installation to Power Brothers, Inc., to be designated as Power herein; (3) Power, in connection with the execution of its subcontract, has assigned all of the work associated with dry-wall construction to employees who are members of or represented by an un- designated affiliate of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, to be designated as the Carpenters in this report; (4) the Respondent Union, at all times material, has maintained and contended that the installation of metal studding, preparatory to the attachment of dry-wall material, is work within its exclusive trade jurisdiction; (5) the Respondent Union has, accordingly, demanded that Power assign such work to employees who are members of or represented by the Respondent Union, rather than to employees who are members of or represented by the Carpenters organization, and Power has, at all times, refused to accede to the Respondent Union's demand; (6) the Respondent Union has not been certified by the Board as the collective-bargaining representative of any of Power's employees; (7) the Respondent Union, in furtherance of its demand, has picketed the California Electric job at various times, whenever Power's carpenters were engaged in the installation of metal studding; (8) as a consequence, employees of the Company and its various subcontractors have refused to work while the Respondent Union's pickets were at the job site; (9) the Respondent Union, the Carpenters, the Company, and Power have agreed, directly or vicariously, upon a method for the voluntary adjust- ment of jurisdictional disputes-within the meaning of Section 10 (k) of the National Labor Relations Act, as amended-through a procedure established by the National Joint Board for Settlement of Jurisdictional Disputes in the Building and Construction Industry, otherwise to be designated as the Joint Board in this report; (10) subsequent to the initial establishment of the Respondent Union's picket line at the California Electric job, the Joint Board's jurisdiction in the premises was appropriately invoked; (11) the Joint Board, thereafter, awarded the work in dispute to the Carpenters organ- ization; (12) the Respondent Union has refused to comply with the Joint Board's award, and, to date, continues to place a picket line at the California Electric job whenever Power employees affiliated with or represented by the Carpenters organ- ization are engaged in the performance of the disputed work; (13) the several objectives of the Respondent Union have been (a) to force or require Cramer to cease doing business with Power, (b) to force or require the Company to cease doing business with Cramer, (c) to force or require subcontractors and other em- ployers and persons to cease doing business with the Company, and (d) to force or require Power to assign the work of installing metal studding for dry-wall construction to employees who are members of or represented by the Respondent Union, rather than to employees who are members of or represented by the Carpenters; and (14) the Respondent Union's conduct, when undertaken to achieve these objectives, involves unfair labor practices within the meaning of Section 8 (b) (4) (A) and (D) of the Act, as amended. In its answer, duly filed, the Respondent Union has conceded the consolidated com- plaint's jurisdictional allegations, and certain factual allegations; it has, however, denied the commission of the unfair labor practices alleged. On the basis of this answer, the Respondent Union prays for the consolidated complaint's dismissal. Pursuant to notice, a hearing was held at Los Angeles, California, on September 9, 1957, before me as a Trial Examiner duly designated. The General Counsel and the Company were represented by counsel, and the Respondent Union by counsel and a business representative. Each of the parties was afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. At the outset of the case, the Respondent Union moved for a continuance; the motion was denied. At the conclusion of the testimonial presen- tation, the parties were apprised of their right to file briefs or proposed findings and conclusions; oral argument, however, was not heard. The General Counsel's repre- sentative and the Respondent Union's counsel indicated, nevertheless, their intention to file briefs. These have since been received and considered. FINDINGS OF FACT Preliminary Statement Much of the record in this case is stipulated or uncontested The Respondent Union's answer, for example, includes a series of admissions with respect to various LATHERS' LOCAL UNION NO. 252 875 matters mentioned in the consolidated complaint. And with respect to a number of the factual allegations it contains, contradictory testimony has not been adduced The conclusions set forth in this report, therefore, may be said to rest, in the main, upon uncontested allegations or testimony. Where the record, as made, nevertheless reveals minor variations in the testimony, I have accepted the testimonial version which appears to represent a reasonable reconstruction of the situation, in its total context. Upon the entire record in the case, then, and my observation of the witnesses, I make the following findings of fact: 1. THE BUSINESS OF THE COMPANY AND ITS SUBCONTRACTORS James I. Barnes Construction Company is a copartnership with its principal office in Logansport, Indiana. At all times material in this case, the Company has been engaged, as a general contractor, in the construction of certain California Electric facilities located in San Bernardino and Rialto, California. These facilities include a general office building-generally designated as building A while under construc- tion-together with a construction and transportation building and a shops and stores building-designated, in the present record, as buildings B and C, respectively. This construction activity is estimated to involve a $2,000,000 cost. Cramer Acoustics is a business enterprise identified for the record, without dis- pute, as a manufacturer and distributor of construction material-specifically, Frey and Haertel nailable metal studs. Its principal place of business appears to be lo- cated at San Francisco, California. The record establishes Cramer as the successful bidder for a contract to supply and install the material required by the Company in connection with the dry-wall construction at the California Electric job. In view of the distance between its "home base" and the job site,' Cramer appears to have elected to subcontract the installation work involved in the dry-wall construction project to Power, while it retained for itself that portion of the subcontract which re- quired it to function as a material supplier. Power Brothers, Inc., is a California corporation; at all material times it has main- tained its main office and place of business in Los Angeles, California. It is engaged, generally, in the business of dry-wall construction and painting contracting in the construction industry. In the course and operation of its business, Power annually furnishes services valued in excess of $100,000 to public utilities and other enter- prises which, in their turn, annually perform services valued in excess of $50,000 annually, outside the States in which they are located. It is conceded, and I find, that the Company and Power are engaged in com- merce and business activities which affect commerce within the meaning of Section 2 (6) of the Act, as amended. In the light of these concessions, and on the basis of the Board's presently established jurisdictional policy (see Jonesboro Grain Dry- ing Cooperative, 110 NLRB 481 and related cases), I find, further, that the asser- tion of the Board's jurisdiction in this case is warranted to effectuate the objectives of the statute. II. THE LABOR ORGANIZATION INVOLVED Lathers' Local Union No. 252, Wood, Wire and Metal Lathers' International Union, AFL-CIO, is now, and at all times material has been, a labor organization within the meaning of Section 2 (5) of the Act, as amended. III. THE UNFAIR LABOR PRACTICES A. The Jurisdiction of the Joint Board It is alleged in the consolidated complaint and conceded by the Respondent Union that, throughout the period with which this case is concerned, there has been in existence an agreement between various employers and unions in the construction industry which establishes certain machinery for the settlement of jurisdictional disputes. Under this agreement, among other things, there has been created a voluntary agency known as the National Joint Board for Settlement of Jurisdictional Disputes in the Building and Construction Industry, hereinafter to be designated as the Joint Board in this report. The Company and Power-either as members of the Associated General Contractors of America, Souhtern California Chapter,2 or 'The record establishes, in this connection, that Cramer has not maintained an office at the job site. Its representative has made periodic visits to the job, however, to see how the dry-wall work is being performed, and what material is needed a The Associated General Contractors of America, Southern California Chapter, is iden- tified in the consolidated complaint, without dispute, as a voluntary association of em- 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD through individual action-have been privy to the foregoing agreement or bound by its terms at all material times. And they have, therefore, been subject to the Joint Board's jurisdiction, or have submitted to its jurisdiction. In the consolidated complaint, the General Counsel alleges that the Company and Power, at all times material, have followed the jurisdictional awards of the Joint Board with respect to disputed work. This allegation is denied by the Respondent Union, which alleges that it has no information or belief upon the matter sufficient to enable it to answer. Upon the entire record, however, I have found it unnecessary to determine the issue posed by the Respondent Union's formal denial in this connection. The Building and Construction Trades Department AFL-CIO, to be designated as the Building Trades Department hereinafter, has been, at all material times, privy to the agreement pursuant to which the Joint Board was established. Wood, Wire and Metal Lathers' International Union, AFL-CIO, and United Brotherhood of Carpenters and Joiners of America , AFL-CIO-which is also a labor organization :within the meaning of Section 2 (5) of the Act, as amended-have been, at all material times, affiliated with the Building Trades Department and presently main- tain such an affiliation .3 The Building Trades Department at its convention in November 1955, attended by delegates from all affiliated unions, adopted a resolution requiring that the plan for the settlement of jurisdictional disputes recognized by the Department be recog- nized and accepted as binding by all affiliates. Since the adoption of this resolution, Wood, Wire and Metal Lathers' International Union, AFL-CIO, and United Brotherhood of Carpenters and Joiners of America, AFL-CIO, have retained their affiliation with the Building Trades Department; they remain bound, as affiliates, by the resolution.4 The agreement under which the Joint Board functions, previously noted, provides for its establishment and outlines the procedure to be used for the settlement of jurisdictional disputes in the building and construction industry through its action; it provides, specifically, that the Joint Board shall consider and decide jurisdictional disputes in the building and construction industry which are referred to it by any of the international unions involved in the dispute, or by an employer directly affected by the dispute, or by a "participating organization" which represents such an employer. The agreement provides, further, that any decision or interpretation of the Joint Board shall immediately be accepted and complied with by all parties to the agreement, and that, pending a Joint Board decision, there shall be no stoppage of work arising out of any jurisdictional dispute. By virtue of the agreements noted, I find, the Respondent Union, Carpenters, the Company, and Power have agreed upon a method for the voluntary adjustment of ployers engaged in the Southern California building and construction industry, which engages in collective bargaining on behalf of its members with the various building and construction trades unions in the area The Company, at all material times, has been a member of this voluntary association, and therefore privy to the trade agreements exe- cuted by the Association, on behalf of its members, with various building and construction trades unions 3 At this point, an ambiguity enters the record In the consolidated complaint, Lathers' Local Union No. 252 of the Wood, Wire and Metal Lathers' International Union, AFL-CIO, is designated as "Lathers" for convenience. And it is alleged that the "Lathers" organi- zation is affiliated with the Building Trades Department of the AFL-CIO organization Upon official notice, however, I find that affiliation with a trade and industrial department of the AFL-CIO is open only to appropriate affiliated national and international unions and oiganizing committees (Constitution of the American Federation of Labor and Congress of Industrial Organizations, article XII, section 1.) Accordingly, I have inter- preted the indicated allegation of the consolidated complaint as an allegation that Wood, Wire and Metal Lathers' International Union, AFL-CIO, is affiliated with the Building Trades Department, despite the General Counsel's loose use of the designation "Lathers" in this connection And the Respondent Union's admission, therefore, should properly be taken only as an admission that its parent organization maintains the affiliation specified. I so find ' 4 As previously noted, the language of the consolidated complaint indicates, in this connection, that "Lathers" is the organization which has remained an affiliate of the Building Trades Department, bound by the resolution In the light of the AFL-CIO con- stitutional provision to which reference has already been made, I have construed the statement in question as a definitive allegation with respect to the status of the Respond- ent Union's parent organization only And the admission of the Respondent Union with respect to the allegation has, accordingly , been construed as subject to a similar limitation LATHERS' LOCAL UNION NO. 252 877 jurisdictional disputes, within the meaning of Section 10 (k) of the Act, as amended. 0 At this point, however, another ambiguity in the record requiries clarification. The consolidated complaint, in this connection, alleges that "Lathers, Carpenters,' Barnes and Power," through the procedures of the Joint Board, have agreed upon a method for the voluntary adjustment of jurisdictional disputes , within the meaning of the indicated statutory provision , by virtue of their contractual privity under the agreements noted in the "foregoing " factual recital . And the answer of the Re- spondent Union includes an admission, with respect to this allegation, without quali- fication. In justice to the Respondent Union's position, however, it should be noted that the consolidated complaint , as I have construed it, characterizes Wood, Wire and Metal Lathers' International Union , AFL-CIO, and United Brotherhood of Carpenters and Joiners of America , AFL-CIO, as bound under the agreement which established the Joint Board by virtue of their continued affiliation with the Building Trades Department of the federation . James I. Barnes Construction Company and Power are described in the consolidated complaint as bound under the agreement in question, however, either as members of the Associated General Contractors of America, Southern California Chapter, or through individual action. The admis- sions of the Respondent Union with respect to these allegations of the complaint leave its own status under the agreement which established the Joint Board somewhat unclear . In the course of extensive argument upon the Respondent Union's initial motion for a continuance, however, its counsel indicated, quite plainly, that the Respondent Union took no position with respect to the obligations of its parent organization under the agreement in question, but merely conceded its own sub- mission to the jurisdiction of the Joint Board, at all material times, under a trade agreement then in full force and effect between Associated General Contractors of America, Southern California Chapter, and various building and construction trades unions in the southern California area. I find the Respondent Union's admission of record that the Lathers organization has agreed upon a method for the voluntary adjustment of jurisdictional disputes through the Joint Board procedure to be an admission that the Respondent Union is privy to such an agreement by virtue of its status as a party bound under the collective-bargaining contract effective , at all material times, between the various employer-members of Associated General Contractors of America , Southern Cali- fornia Chapter, and various building and construction trades unions in the southern California area. B. The California Electric job 1. The job site The California Electric project of James I. Barnes Construction Company, at which the dispute involved in the present case developed, is located, approximately, at the intersection of Foothill Boulevard and Pepper Avenue, in San Bernardino and Rialto, California. The designated boulevard, I find, runs east and west at this point; Pepper Avenue runs north and south, and marks the boundary line between San Bernardino to the east, and Rialto to the west. Building A of the project in question, a general office building under construction for California Electric as noted, is located on property which adjoins the intersection of Foothill Boulevard and Pepper Avenue; it lies immediately to the south of the boulevard and east of Pepper Avenue, within the San Bernardino city limits. The construction and trans- portation building and the shops and stores building of the utility enterprise-identi- fied as buildings B and C, respectively, in the record-are under construction west of Pepper Avenue in Rialto, California; the property involved, however, is not directly opposite that on which the general office building is being erected. Its northern boundary, I find, is located approximately 600 feet south of Foothill Boulevard, and the lot has a Pepper Avenue frontage only. A working blueprint of the entire California Electric job site reveals that the Pepper Avenue frontage of the lot which will contain the utility firm's construction and transportation building and its shops and stores building does not face the avenue frontage of the general office building lot. The southwest corner of the latter lot, I find, is directly opposite the northeast corner of the California Electric property on the west side of the street. The construction workers engaged in building A erection, on the east side of the avenue, have established two job site entrances on the latter thoroughfare. These appear, however, to be nothing more than driveways cut out of the curb, or, at the least, areas selected on the basis of convenience, for utilization as job site entrances and exits. The northernmost one, I find, is located on the avenue, about 150 feet south of Foothill Boulevard; the southernmost is located approxi- mately 600 feet south of the boulevard. The California Electric property, which 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD will ultimately include buildings B and C, has only one Pepper Avenue entrance; this is located, I find, approximately 650 feet south of the nearby boulevard. The construction office utilized by Barnes for the entire job is located immediately south of the southernmost building A lot entrance, approximately 608 feet south of Foothill Boulevard on the avenue. The electrical subcontractor and the plumbing subcontractor on the job, unidentified, also maintain small offices on the building A lot, close to Pepper Avenue, between the entrances previously noted. Each of them, I find, maintains a small fenced yard. And the yards, which adjoin each other, provide a physical barrier which inhibits entry to the building A lot for most of the distance between the entrances previously described. 2. The disputed work Most of the walls to be installed on the California Electric job, I find, involve dry-wall construction. When asked to describe this type of construction, the Company's general superintendent testified, without contradiction, as follows: Dry wall construction consists of channel runner [also identified as "metal track" in the record] on the ceiling and on the floor with nailable metal studding placed inside, and spaced properly to receive four-by-eight or four-by-ten, or whatever the height may be, of sheet rock. There is sometimes an angle [ iron ] placed at the bottom to receive the dry wall if it gets [a] cement base. If it gets [a] rubber tile or asphalt base, the dry wall runs all the way to the floor, and the studs are set, the dry wall is nailed to it. That's all there is, and it is painted. In the set of specifications prepared by California Electric with respect to the job, the particular requirements established with respect to metal studs and lath and plaster provide that the nailable studs to be utilized in connection with the dry-wall construction were to be 35/a", 16 gage, hot-dipped "Jackson" studs as supplied by Frey & Haertel, Inc. The specification required the use of one-quarter inch screw-type concrete nails as nailing devices. And it also provided that all "materials, tools, equipment, transportation, services and labor" required to complete the metal lath work indicated on the blueprints or itemized in the specifications should: conform to the standards of the California Lathing and Plastering Contractors Association, Inc., unless otherwise shown on drawings or specified herein . . . The record, however, is silent as to the specific standards of the designated Association with respect to the "materials, tools, equipment, transportation, services and labor" required to install nailable metal studs. C. The dispute It is alleged in the consolidated complaint that the Respondent Union, at all material times, has maintained and contended that the work of installing metal studding for dry-wall construction is within its exclusive jurisdiction. This allegation the Respondent Union has admitted. It is also alleged by the General Counsel that the Respondent Union has demanded that Power assign such work to employees who are members of or represented by the Respondent Union, rather than to its employees who are members of or represented by a Carpenters organization, and that Power, throughout, has refused to accede to the Respondent Union's demand. These allegations are denied. The available evidence in this connection is to be found, largely, in the testimony of Kenneth K. Anderson, the Company's general superintendent at the California Electric job; his testimony, with slight variations, was substantially corroborated by that of Ivan Lee Buck, the Respondent Union's secretary and business agent. The evidence in question establishes the convocation of a prejob conference, sponsored by the Company, in its capacity as the general contractor on the California Electric job, with union business agents present or represented for every trade involved in the project. (Anderson could not recall the presence of a Carpenters representative; I find, on the basis of Buck's testimony, that one was there ) The conference was held, I find, sometime in August of 1956. Buck was the Respondent Union's representative Anderson, I find, advised Buck that he had just completed a Los Angeles job involving dry-wall construction; that a jurisdictional dispute between the Carpenters and the Lathers had developed with respect to it; and that he wished to have a definitive determination as to the identity of the craft workers who would "do" the dry-wall work on the California Electric project. The general superintendent's testimony, which I credit, establishes his "belief" that Buck said lathers would install the dry wall This summary of the conversation at the LATHERS' LOCAL UNION NO. 252 879 conference was corroborated and amplified by Buck; his testimony with respect to the incident reads as follows: So during the conferences, Mr. Anderson says, "Now, we have Jackson stud or nailable lock studs on the job," and he says, "I want to get it straight, and I want to know whose jurisdiction that is in"; and I said that is in mine. I believe Mr. Anderson stated that he didn't know whether a carpenter-there was a Mr. Buchanan, and Mr. Buchanan spoke up and he wanted to argue right there, and Mr. Wiley [presumably Robert F. Willsey, the secretary of the San Bernardino and Riverside County Building and Construction Trades Council] says, we are not going to have a jurisdictional dispute right here at this time; and that was that. We didn't; we continued with the conference .. . Buck's testimony also establishes the absence of any statement at the conference with respect to the award of a subcontract to cover the dry-wall construction; the available evidence provides no definite clue, in fact, as to the date when the subcontract for the installation of dry-wall materials was awarded. Anderson's testimony establishes that his superior is responsible for the distribution and execution of subcontracts. The Company's overall agreement with Cramer Acoustics, previously noted, negotiated to cover the cost of the materials to be utilized in connection with the requisite dry-wall construction and the cost of the work involved in their installation, appears to have been awarded to Cramer prior to the prejob conference. The record is silent, however, as to whether the subcontract negotiated-presumably by Cramer itself-to cover the actual installation work had already been awarded to Power prior to the conference date. Sometime early in April, I find, Power began work on the project, pursuant to its Cramer subcontract. The record establishes that two of Power's employees began work in building B, previously noted, putting in the "track" or "channel runner" to which the metal studs would be attached. The available evidence as to the date when the installation subcontractor began the disputed work is somewhat confused. It is alleged in the consolidated complaint that Power's men started work on or about April 9, 1957. After an analysis of the record, however, I am satisfied that the Power employees began work on or about April 6. It is alleged by the General Counsel, and conceded by the Respondent Union, that Power, in connection with the execution of its Cramer subcontract, assigned the work of installing the metal studding and sheet rock to its employees who were members of Carpenters or represented by that organization. (The record estab- lishes, in the absence of contradiction, that Power, as a member of the Dry Wall Contractors Association, is privy to a statewide trade agreement with the Carpenters.) Anderson, I find, thereupon summoned Wiley Howard, the secretary of the District Council of Carpenters, to meet Buck on the job for the purpose of discussing the identity of the craft to be recognized as responsible for the dry-wall construc- tion. Each business agent claimed the work for his own organization. When the general superintendent demanded an agreement, however, Howard observed flatly that "Well, the Carpenters are going to do the dry wall, and that's that." After a heated argument, he left the job. Buck identified the other participants in the conversation as General Superintendent Anderson, Wiley Howard, and Buchanan of the Carpenters organization. His testi- mony with respect to the conversation at the job site on the occasion under considera- tion is considerably more detailed than Anderson's I find it credible. It reads as follows: I said the Lathers have to do their work. It is our work; we have done it throughout the ages. That's all, and we was going by the Green Book, and we have always followed the Green Book. We are not asking for anything other than what is ours, and that was my statement; and that's the way I told it. . . . When questioned as to the specific request he addressed to Anderson, Buck insisted that it was merely a request that the general superintendent live up to the agreements on record between the parties. And he went on to testify that- Mr Anderson said he just finished a job here in Los Angeles, that he was going to continue to do the work the same as he did here in Los Angeles, and that's it. And I said, and I told him he wasn't in Los Angeles county at the present time; that we had done all this work, to my knowledge, any work of any job of any consequence, the Lathers has always done it in San Bernardino and Riverside counties. . . . At that time, I mentioned that we had done it, and then Mr. Howard . Mr. Howard says that they furnished carpenters on a job that we done in Oro Grande. I says, "Well, if you furnished carpenters, 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD you have some new carpenters, because I cleared all the men on that job," and then Buchanan was the business agent in that area, and Wiley, he says it might have been a slip-up by one of the agents; and that's all. At the outset of his testimony, Buck observed, generally, that he had gotten "no place" in the discussion; he corroborated Anderson's observation, previously noted, that Howard had been obdurate in his insistence that Carpenters would perform the disputed work. At the conclusion of his recital, however, Buck was asked whether anything had been said with regard to whether Power should continue to do the work, or with regard to the circumstances under which the subcontractor might continue. He testified that: I said that they would have to make a change, and Mr. Anderson-we went over to the office-before I put the picket line on there, and Mr. Anderson told [George H. Cronshey, Power's general superintendent of dry-wall construc- tion, or Luther E. Marshall, the subcontractor's job superintendent] and he says, "I believe we are going to be forced to put Lathers on that work." He didn't ask them to do anything at the present tune; he told them. General Superintendent Anderson, in substance, confirmed this testimony. His detailed recital, ultimately, establishes that Anderson, at the conclusion of the con- versation noted, returned to the general contractor's office at the job site and instructed Cronshey to pull Power's man off the job until the dispute was settled. Cronshey, I find, complied. At this point, the dispute appears to have been submitted to the Joint Board. District Council Secretary Howard of the Carpenters apparently wired his general headquarters with respect to the dispute, requesting a Joint Board job decision; at least General Superintendent Anderson appears to have been so informed, and his testimony to that effect stands in the record without dispute. And on April 9, 1957, Chairman John T. Dunlop of the Joint Board informed Barnes and Carroll Duncan- a subcontractor responsible for certain metal lath work on the California Electric job not covered by the Cramer contract-that the Joint Board had been advised of a jurisdictional dispute between the United Brotherhood of Carpenters and Joiners and the Wood, Wire and Metal Lathers International Union over the installation of Jackson nailing bar and sheet-rock backing at the project. The parties addressed, specifically, were requested to send a full and complete description of the work in dispute. In the Company's behalf, I find, General Superintendent Anderson supplied the requested information on April 16, 1957, by letter. It is alleged in the consolidated complaint that the Respondent Union-in further- ance of its alleged demand that Power assign the work of installing metal studding for the dry-wall construction at the project to employees who were members of or represented by the Respondent Union, rather than to its employees who were mem- bers of or represented by the Carpenters union-picketed all three of the buildings under construction at the California Electric project on or about April 16, 1957, and thereafter, whenever Power's carpenters were engaged in the installation of metal studding. By its answer, the Respondent Union has admitted only that, since on or about April 16, 1957, it has picketed the job; the other allegations noted are denied. The available evidence, however, will not sustain a factual conclusion consistent with the General Counsel's allegation and the Respondent' s admission ; it does not establish the actual existence of an April picket line at the California Electric job, at any time. Cronshey's testimony, which I have already cited, establishes Power's designation of 1 or 2 men between the "first and fifteenth" of April to begin the in- stallation of the "track" which would bear the metal studding; it establishes, also, that the men were initially assigned to building B at the job site. In substantial accord with the testimony of Anderson and Buck, Cronshey reports the termination of their employment after half a day, when the Company's general superintendent, subsequent to the conversation noted, asked that Power's men stop work until the jurisdictional dispute was settled. No pickets appear to have been posted on this occasion And Anderson's testimony includes a statement that he pulled the Car- penters off the job to keep the Respondent Union from establishing a picket line. Cronshey's testimony-which I credit, in preference to that of his job superintend- ent-establishes that Power did not resume work at the project, under its subcontract, until approximately May 20. On May 9, 1957, 1 find, General President M. A. Hutcheson of the Carpenters advised Chairman Dunlop of the Joint Board, apparently in response to an earlier inquiry, that the work in dispute, on which the Carpenters had already requested a job decision, involved "Jackson nailing bar" and sheet-rock backing. He also re- LATHERS' LOCAL UNION NO. 252 881 ported, erroneously, the completion of the disputed work by members of the Lathers organization. Chairman Dunlop was advised, however, that: With respect to the nailable steel studs, we wish to advise that this work is being performed by our members for the Powers [sic] Brothers, who have the contract for this work. These are Fry & Hartell [sic] nailable metal studs and are I and i/8 inch by 3 and 5/8 inches and ceiling height. They are similar to Stran steel studs and Penn metal studs which have always been recognized as coming under the jurisdiction of the Carpenters. And, the Board on numerous occasions has ruled that it is work of the Carpenters. The lathers as of May 1, 1957, placed a picket line on the job. The Joint Board was requested to advise the Company to proceed to utilize Carpen- ters in connection with the installation of the nailable metal studs; and Dunlop was requested, also, to order the Lathers to resume work in accordance with the Joint Board's procedural rules. On May 20, 1957, Chairman Dunlop dispatched copies of Hutcheson's letter to General President Lloyd A. Mashburn of the Respondent Union's parent organiza- tion, as well as the Company, Power, and the Carroll Duncan Lathing and Plaster- ing Company, previously noted. In a covering letter, General President Mash- burn was directed to instruct the Respondent Union to remove its picket line im- mediately, to resume work immediately, and to perform work as assigned. The Company was requested to submit a detailed report with respect to the current status of the job and any dispute. (General Superintendent Anderson appears to have received a prior indication of Chairman Dunlop's action. The record establishes ,his receipt of advice by long distance telephone, shortly before May 20, that the letter noted would be written. Buck, I find, was subsequently informed by the gen- eral superintendent of the action which the Joint Board proposed to take; he refused, however, to accept Anderson's report as determinative.) On or about May 20, 1957, Anderson recalled Power; he instructed the subcon- tractor's crew, I find, to resume work immediately nailing down dry wall. The crew was advised, however, not to install any metal studs prior to the receipt of the Joint Board's promised communication . Pursuant to these instructions, I find, Power resumed work in building B at once. ' The Respondent Union established a picket line immediately. The available evi- dence, in this connection, is somewhat vague; it establishes, however, that the Cali- fornia Electric job site was subsequently picketed, at various times, by Business Agent Buck of the respondent labor organization. And occasionally, I find, there appears to have been a second picket. At all times material, after May 20, a picket patrol appears to have been maintained on the Pepper Avenue frontage of the build- ing A lot, at the job site.5 Simultaneously, the automobile then being utilized by Business Agent Buck was parked, I find, on the western side of the avenue-im- mediately adjacent to the entrance conventionally used as a means of access to the lot where building B and building C were under construction-and a picket sign appears to have been left leaning against the car. At the outset, and for most of the period now under consideration, the picket signs utilized by the Respondent Union bore the legend "Cramer Acoustics Unfair to Lathers' Local 252." Subsequently, at a time to be noted elsewhere in this report, the legend was changed. The General Counsel alleges in the consolidated complaint, and the Respondent Union admits, that, as a consequence of such picketing, employees of Barnes and of its subcontractors walked off the job and refused to work while the job was picketed. On May 24, 1957, Chairman Dunlop of the Joint Board dispatched a letter to General President Mashburn of Wood, Wire and Metal Lathers International Union, advising him of the Joint Board's information that the labor organization involved was still on strike in the jurisdictional dispute at the California Electric job. Mash- burn was further advised, in the premises, that the Joint Board had voted to direct him to direct his local union to resume work immediately, pending a Joint Board job decision. Carbon copies of this letter were sent, I find, to General President Hutcheson and another representative of the Carpenters, R. J. Gray of the Building 6 Minor variations will be found in the testimonial record with respect to the area patiolled The available evidence, in my opinion, will support a factual finding, however, that a picket or pickets patrolled the eastern side of Pepper Avenue, from a point immedi- ately north of the northernmost entrance to the building A lot to a point immediately south of its southern entrance, opposite the general contractor's job site office 483142-59-vol. 120-57 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Construction Trades Department, an AGC representative, the Company, the Carroll Duncan Lathing and Plastering Company, and Power, the subcontractor directly involved. In a subsequent letter dated May 31, 1957, and addressed to Mashburn, Hutcheson, the Company, Carroll Duncan, and Power, the Joint Board announced its job deci- sion, or jurisdictional award Describing the situation as a jurisdictional dispute between Wood, Wire and Metal Lathers' International Union and United Brotherhood of Carpenters and Joiners, at the California Electric project, the letter of decision reported that: The Joint Board voted to direct President Mashburn to direct the Local Union to remove picket line [sic] immediately and to return to work immediately. The Joint Board further voted to make the following job decision: The installation of hangers and 11/2" channel should be assigned to lathers; the installation of Jackson Bar and 4x8 sheet rock used as a base for acoustical tile should be assigned to carpenters. In the meantime, however, a Power crew appears to have been at work in building B at the job site, and the Respondent Union's picket line appears to have been maintained; I so find On or shortly before June 3, 1957, Power's crew exhausted its available supply of metal studs and suspended work with respect to this aspect of its installation contract. The crew, however, appears to have continued the actual installation of dry-wall sheet rock. On June 3, General Superintendent Anderson returned from a vacation; on the following day, I find, he was summoned to the project by a California Electric repre- sentative. He observed a two-man picket line at the job site. The letters previously dispatched in the Joint Board's name were exhibited to Business Agent Buck on the picket line, I find, by the general superintendent. Buck, however, refused to acknowl- edge the Joint Board's job decision; he indicated his reliance, instead, upon a juris- dictional agreement between the Carpenters and the Respondent Union's parent organization, executed on January 14, 1903 [sic] s The document in question appears to embody an agreement by the Carpenters "pending the action of their con- vention" not to assert jurisdiction over any ironwork, including iron or wire lathing, studding, or any other exclusively ironwork claimed by Wood, Wire and Metal Lathers' International Union. The latter organization appears to have agreed, in return, not to assert jurisdiction over or allow its members to perform any wood- work, including shingling, wooden arches, door or window frames, wooden studding or furring, or any other carpenter or woodwork except wooden lath to receive plastic material. On the basis of this agreement, Buck refused to acknowledge the propriety of the Joint Board's job decision. Anderson, I find, thereupon ordered the Power crew to cease work as of June 4, 1957. The picket line was immediately discontinued. (Anderson's testimony establishes that Buck's reference to the agreement between the Carpenters and the Lathers led him to discuss the original assignment of the disputed work by Power with his own Company superior; the general superintendent insisted, however, that nothing could then be changed, since a general contractor who has let a subcontract cannot "very well" tell the subcontractor what to do on it, or whom to use.) In a telegram dated June 10, 1957, the general superintendent subsequently advised Chairman Dunlop of the Joint Board that no work was then underway in connection with the installation of metal studs and dry-wall materials by any trade, since the lathers-presumably the respondent labor organization-were threatening to re- establish a picket line if any carpenters were allowed to proceed with the work. The Joint Board was requested to issue a "decision in writing" with respect to the dispute, and to arrange a conference with the general president of each international union involved, since it appeared to be "impossible" to resolve the dispute at the local level. On June 12, 1957, Chairman Dunlop reported his receipt of the telegram to General President Hutcheson of the Carpenters and General President Mashburn of the Respondent Union's parent organization. These officials were requested to state the position of their respective trades with respect to the work and dispute. 6 This agreement , I find , is set forth verbatim in the "Green Book," a publication which includes both the "Plan For National Joint Board For Settlement Of Jurisdictional Dis- putes" and various jutisdictional agreements entered into between international unions affiliated with the AFL-CIO Building and Construction Trades Depai tment ; it also in- cludes various decisions rendered affecting the building industry which are held to be operative by the Building and Construction Trades Department LATHERS' LOCAL UNION NO. 252 883 The record is silent with respect to the subsequent action, if any, taken by each organization. In a letter dated June 22, 1957, however, the president of each international union involved, the Company, and the interested subcontractors, pre- viously designated, were informed by Chairman Dunlop that: At its meeting June 20, 1957, the Joint Board considered the jurisdictional dispute between the Wood Wire and Metal Lathers' International Union and the United Brotherhood of Carpenters and Joiners over the application of nailable metal studs to receive 5/s" drywall, California Electric job, Rialto, California, James I. Barnes Construction Company contractor, Carroll Duncan Lathing and Plastering Company and Power Brothers subcontractors. The Joint Board voted to make the following job decision: The work in dispute should be assigned to carpenters. This action of the Joint Board was predicated upon particular facts and evidence before the Joint Board regarding this dispute and shall be effective on this particular job only. There is testimony in the record, which has not been disputed, that the Respondent Union and the San Bernardino and Riverside Counties Building Trades Council, a signatory of the AGC contract for the Southern California area in behalf of the Respondent Union and other affiliated labor organizations, never received any courtesy copies of the Joint Board correspondence noted in this report; nor have they, I find, received any copies of the Joint Board's ultimate determination, either from the AFL-CIO Building Trades Department or otherwise Despite the job decision noted, the available evidence establishes that Power was not summoned by the general contractor to resume work until the "first part" of August, approximately. (Anderson's testimony indicates that he summoned Power to resume work, and subsequently to cease work, 4 or 5 times. He could not, how- ever, fix his course of conduct chronologically. And an analysis of the record convinces me that Power's crew did not, actually, resume work at the California Electric job until August, as indicated ) On August 5 or 6, I find, carpenters in the employ of Power began to install nailable studs in building A; the subcontractor's work at the job site has continued to date. Upon resuming work, Power appears to have dispatched a 2-man crew to building C for approximately 3 hours. I so find. This was the only occasion, I find, when the subcontractor had crews in two project buildings simultaneously. The available evidence reveals the reestablishment of the Respondent Union's picket line simultaneously with Power's resumption of work. At the time, I find, the plumbers and sheet-metal men on the project were already engaged in a strike. When the Respondent Union's picket line reappeared, however, the other craftsmen at the job site ceased work, according to General Superintendent Anderson's testimony, with the exception of the carpenters and a "few" other trades, unspecified. The duration of the Respondent Union's renewed picketing, and its precise location, is somewhat in doubt, however. Luther E. Marshall, Power's job superintendent, testified, for one, that the pickets at the project on August 5 or 6 were no longer present on the 8th or 9th of the month, prior to the scheduled resumption of work at the project on August 12 by the sheet-metal men and plumbers, previously on strike. George H. Cronshey, Jr., Power's general superintendent, testified, however, that the installation work with nailable metal studs in building A at the project lasted for approximately 1 week, and that Anderson, in the second week of August, immediately after the resumption of work by the plumbers and sheet-metal men on the 12th of the month, requested Power's crew to begin the installation of metal studding in building C, with the observation that there would be a picket line established if they continued their building A work. The switch appears to have been made. And, according to Cronshey, the Respondent Union maintained no picket line at the project, after Power's crew moved to building C as noted. To com- pound confusion, however, the parties have stipulated that the Respondent Union has maintained no picket line since August 26, 1957, at the California Electric project. In the light of the issue posed for decision in this case, I find it unnecessary to evaluate this variant testimony or determine the precise date when picketing ceased. There can be no doubt, certainly, that it continued for some undetermined period, during the month in question. The record includes a stipulation that until "some time" in August, the signs utilized by the pickets designated Cramer as unfair to the Respondent Union. At some unspecified time, however, they were altered to read: "James I. Barnes Company unfair to Lathers Local Union 252 of the San Bernardino and Riverside Counties AFL-CIO." And signs with this revised legend, I find, were carried until picketing ceased. 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At some unspecified time during the indicated period, also , General Superintendent Anderson appears to have shown Business Agent Buck the Joint Board 's June 22 decision; Buck, however, appears to have reiterated his unwillingness to accept the Joint Board 's award as determinative . I so find. Specifically, it is found, on the basis of Anderson's testimony, that Buck refused to acknowledge his obligation to accept the Joint Board's determination since, on the basis of the Green Book pre- viously noted, the Company's subcontractor had assigned the disputed work, initially, to the "wrong" people. And on September 3, 1957, I find, Anderson was accosted by Buck at the project and advised not to resume the disputed work in building A, since the Respondent Union 's picket line would be reestablished if he did. An- derson's undisputed testimony establishes that he promised no building A work would be done, and none of the disputed work has in fact been done there, I find, since the indicated date. Conclusions A. The Issues Section 8 (b) (4) of the National Labor Relations Act, as amended, provides in pertinent part that it shall be an unfair labor practice for a labor organization, or its agents, 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, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services , where an object of the indi- cated conduct is: (A) forcing or requiring . .. any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person... . (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 representative for employees performing such work... . And it is the principal contention of the General Counsel , in this case, that the Respondent Union, by the establishment of its picket line, and by other acts and conduct, did engage in, and did induce and encourage employees of Barnes and other employers to engage in, a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on goods, articles, materials, or commodities, or to perform services. In this connection , it may be noted at the outset that the available evidence does not establish a strike or concerted refusal to work by lathers at the California Elec- tric job. It is conceivable that lathers affiliated with the Respondent Union may have been utilized by the Carroll Duncan Lathing and Plastering Company to install metal lath at the project not related to the dry-wall installation, and that these lathers may have refused to cross their labor organization's picket line, but the record will not support a finding to this effect. It merely establishes that workmen in the employ of some subcontractors-unspecified-refused to cross the Respondent Union's picket line. And I have so found. With specific reference to Section 8 (b) (4) (A) it is alleged that the Respondent Union's object was (a ) to force or require Cramer to cease doing business with Power, (b) to force or require Barnes to cease doing business with Cramer, and (c) to force or require subcontractors and other employers and persons to cease doing business with Barnes as a general contractor. In connection with the Section 8 (b) (4) (D) allegation, it is contended that the Respondent Union 's conduct had as its object forcing or requiring Power to assign the work of installing metal studding for dry-wall construction to employees who are members of or represented by the Respondent Union , rather than to employees who are members of or represented by a Carpenters organization. Each of these allegations is challenged . And by way of affirmative defense the Respondent Union argues, at the outset , that the issuance of an 8 (b) (4) (D) com- plaint should be considered "premature " in the absence of an antecedent determina- tion with respect to the underlying jurisdictional dispute, under Section 10 (k) of the statute. In this connection , however, it is contended , in the Respondent Union's behalf, that the submission of satisfactory evidence with respect to the existence of LATHERS' LOCAL UNION NO. 252 885 an "agreed upon method" for the voluntary adjustment of the dispute, binding upon all parties, must be considered sufficient to "exhaust" the Board's jurisdiction in the case, even in the face of evidence that one union privy to the agreement in question may have refused to abide by the job decision of the tribunal established thereby. The Respondent Union asserts that the Board may not enforce the decision of a private tribunal under Section 8 (b) (4) (D) of the statute, and that, in any event, there is no valid decision by such a tribunal, in this case, to be enforced. With respect to the General Counsel's Section 8 (b) (4) (A) contention, the Respondent Union characterizes its picket line as primary activity, directed at Barnes in particu- lar, on the theory that: . Mr. Anderson was violating the terms of the contract between Barnes and the union by having someone do the work who employed carpenters rather than lathers . . . It is argued in the Respondent Union's behalf, therefore, that the evidence in the instant case reveals that Barnes has been subjected to primary picketing, in the course of which its employees and those of the other firms active on the project have admittedly been encouraged to refuse to go through the picket line. B. Analysis 1. The jurisdictional dispute issue a. The respondent union's alleged waiver In the present posture of the case, the Respondent Union has, as I see it, raised a substantial issue as to the propriety of a complaint proceeding under Section 8 (b) (4) (D) of the statute, in the absence of a Section 10 (k) agency determination, to enforce what is contended to be a valid Joint Board job decision, or, at the very least, to enforce compliance with the procedures established to implement the Joint Board plan for the settlement of jurisdictional disputes. It is the General Counsel's contention at the outset, however, that this issue, since it was not raised by the Respondent Union prior to or during the hearing, is not properly presented for determination. The Respondent Union's argument is char- acterized as a "matter of defense" which can in no way be considered jurisdictional, and it is argued that the organization's failure to urge it prior to the close of the hear- ing may be treated as a waiver of the point involved. In support of the contention of the General Counsel's representative that the Respondent Union's counsel has, at all times, shared his view as to the propriety of the present proceeding, reference is made to the argument of the latter, at the outset of the hearing, in support of the Respondent Union's motion for a continuance. In the course of this argument counsel did observe, in the Respondent Union's behalf, that, under Section 10 (k) of the Act, as amended, the Board had two alternatives: 1. If an unresolved jurisdictional dispute existed, and no agreement had been reached with respect to its resolution, the Board would be required to resolve the dispute by a determination of jurisdiction, before it could proceed to consider the issuance of a cease and desist order on the basis of an 8 (b) (4) (D) complaint. N. L. R. B. v. United Association of Journeymen and Apprentices of the Plumbing and Pipe fitting Industry of the United States and Canada, Locals 420 and 428, AFL, 242 F. 2d 722, 39 LRRM 2629 (C. A. 3). 2. If there were a tribunal with authority to resolve the dispute-established pursuant to an agreement by the parties-which had rendered a valid and binding decision, that decision could be enforced. The organization's counsel went on to concede, in this connection, that the Respondent Union, by virtue of its affiliation with the Building and Construction Trades Council of Riverside and San Bernardino counties, has, at all material times, been privy to the Southern California Master Labor Agreement, and that it was and is, therefore, subject to the authority of the Joint Board in jurisdictional dispute cases. He went on to argue, however, that the Joint Board's job decision with respect to the California Electric project had, in fact, been procedurally defective, that no valid determination of the dispute had, in fact, been announced, and that the Respondent Union was, therefore, prepared . to argue the question of jurisdiction before the Board to present our evidence to show the entitlement of the Respondent to the work in dispute . . . I do not construe this statement with respect to the Respondent Union's position as a waiver by the organization of the argument that a Section 10 (k) determination 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is a statutory prerequisite to the prosecution of a Section 8 (b) (4) (D) complaint. In the course of his argument on the motion noted, the Respondent Union's counsel was merely attempting to define the Board's function in a Section 10 (k) proceeding under the statute, as he saw it; I find nothing in his argument which implies an acceptance of the view that, under certain circumstances, Section 8 (b) (4) (D) complaints may be processed by the Board in the absence of an antecedent Section 10 (k) determination. With respect to this issue, it is true, the Respondent Union did not, expressly, take a position at the hearing. The organization's silence, however, cannot be construed, in my opinion, as a waiver of the contention which it now advances. Between the commencement of a hearing in an unfair labor practice case and the entry of a Board order transferring the case to itself, under Section 102.45 of the Board's Rules and Regulations, the trial examiner designated to conduct the hearing retains jurisdiction in the case and is both authorized and bound to inquire fully into the facts, in order to determine whether any respondent involved has engaged in or is engaging in an unfair labor practice affecting commerce. (See Section 102.35 of the Board's Rules and Regulations.) In this connection, the trial examiner is authorized, inter alia, between the time of his designation and the transfer of the case to the Board, to dismiss complaints or portions thereof, subject to the Board's Rules and Regulations, and within its powers. And the Respondent Union's answer, in this case, does include a prayer that the consolidated complaint be dismissed. Under the applicable rule, this prayer presents for determination every material issue of law or discretion raised by the record. And Board Trial Examiners are required, in the discharge of their duty, to prepare Intermediate Reports with findings of fact, conclusions, and the reasons or basis therefor, upon all material issues of fact, law, or discretion presented on the record. The fact that the Respondent Union's specific theory, upon which it now urges dismissal, may not have been thoroughly articulated, prior to the submission of its initial brief, cannot absolve the trial examiner of the duty to make his recommendation as to the disposition of the case in its final posture, subject to the Board's Rules and Regulations, and within the Board's statutory power. The administrative process, finally, ought not to be considered an exercise in gamesmanship. Cf. Conley v. Gibson, 78 S. Ct. 99. And an administrative determination certainly ought to reflect conclusions based upon the merits of each issue presented, rather than conclusions bottomed upon the relative skill of the pleaders involved. I find the Respondent Union's contention with respect to the propriety of a Section 8 (b) (4) (D) proceeding-now under consideration-timely made, and reject the argument that the failure of the Union's counsel to articulate it prior to the close of the hearing ought to be construed as a waiver. b. The statutory scheme The essential nature of the unfair labor practice defined in Section 8 (b) (4) (D) of the Act, as amended, has already been indicated. At this point, however, it may be useful to note, once more, that the course of conduct statutorily proscribed, in this connection, when engaged in to force or require 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, is defined as a qualified unfair labor practice. It is declared to be subject to administrative and judicial interdiction. unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work... . And this, of course, means, essentially, that a course of conduct within the scope of the statutory provision, undertaken for the designated objective, may be treated as an unfair labor practice unless certain exceptional circumstances are present. The antecedent agency "order or certification" to which reference is made would, ordinarily, reflect a Board determination, under Section 10 (k) of the statute, that a designated labor organization is the recognized bargaining representative of the employees engaged in the performance of the disputed work, under a currently effective agreement, or that it is entitled to recognition as their exclusive representative, under Section 9 (a) of the statute , as a result of its designation or selection as a collective-bargaining agent by an employee majority in some "unit" appropriate for the purposes of a,collective bargain. Cf. Winslow Bros. & Smith Co., 90 NLRB 1379, 1385; National Broadcasting Company, 105, NLRB 355, and similar cases. LATHERS' LOCAL UNION NO. 252 887 With respect to the prevention of unfair labor practices, including the unfair labor practice defined in Section 8 (b) (4) (D), previously noted, Section 10 (a) of the statute provides that: The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 8) affecting commerce. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise: .. . [Emphasis supplied.] The Board, in short, is "empowered" but not "directed" under the statute to prevent various unfair labor practices. The legislation clearly vests the Board with complete discretionary power to determine, in each case, whether the public interest requires it to act. N. L. R. B. v. Newark Morning Ledger Co., 120 F. 2d 262, 268 (C. A. 3), cert. denied 314 U. S. 693. In the cited case, for example, the court described the question presented for determination as a question as to whether the Board's func- tion, under the statute, had not been fully performed-in the light of evidence that the parties had bargained and reached an agreement-from which it would follow that they would be relegated, in the event of any subsequent breach of the agreement, to arbitration, if the agreement so provided, or to their remedy in the courts. In the course of its final decision with respect to this question, upon rehearing, the court observed that: It is apparent that the jurisdiction of the Board to prevent unfair labor practices is very broad. It is, we think, equally clear that the exercise of this jurisdiction in any particular case, is, under the language of Section 10, discre- tionary with the Board. The jurisdiction is not to be exercised unless in the opinion of the Board the unfair labor practice complained of interferes so substantially with the public rights created by Section 7 as to require its restraint in the public interest. As we have seen, the mere fact that a private right of an employee has been infringed by the act of an employer is not of itself suffi- cient to bring the Board's powers into play. The Congress, has, however, reposed in the Board complete discretionary power to determine in each case whether the public interest requires it to act. [Emphasis supplied.] And in a case subsequently decided (Jacobsen, et al. v. N. L. R. B., 120 F. 2d 96) the same court of appeals, upon reargument heard en banc, observed that: It will be noted that the jurisdiction of the Board is not a compulsory jurisdiction. Assuming that all circumstances looked to by the Act are in existence, none the less we are of the opinion that the Board does not have to cause a complaint to be issued against the employer or proceed to prohibit any unfair labor practices complained of. The course to be pursued rests in the sound discretion of the Board and is the concern of expert administrative policy. That discretion is not a legal discretion at least in so far that upon the abuse of it the several circuit courts of appeals might compel the Board to issue a complaint. . . . It follows that in the case at bar the Board could have disregarded the charges made. . . . [Emphasis supplied.] With respect to the implementation of the Board's power, thus conferred, the statute goes on to provide in Section 10 (b), also, that: Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency designated by the Board for such purposes, shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect. . . . [Empha- sis supplied.] And in numerous cases, the Board's reiterated determination to assert its legal jurisdiction only when it has been satisfied that the unfair labor practices alleged have had or would have a pronounced impact on interstate commerce has received consistent judicial approval. Before the adoption of the Board's 1954 jurisdictional standards: N. L. R. B. v. Denver Building and Construction Trades Council, 341 U. ,S. 675, 684; Haleston Drug Stores, Inc. v. N. L. R. B., 187 F. 2d 418, 420-422 (Q., A. 9), cert. denied 342 U. S. 815; N. L. R. B. v. Townsend, 185 F. 2d 378, 383 (C. A. 9), cert. denied 341 U. S. 909; Local Union No. 12, Progressive Mine Workers of America, etc. v. N. L. R. B., 189 F. 2d 1, 4 (C. A. 7), cert. denied 342 U. S. 868; cf. N. L. R. B. v. Eanet, et al., 179 F. 2d 15, 18 (C. A., D. C.). Under the 1954 jurisdictional standards: N. L. R. B. v. Stanislaus Implement and Hardware Company, Ltd., 226 F. 2d 377, 378-379 (C. A. 9); N. L. R. B. v. Kartarik, Inc., 227 F. 2d 190, 192 (C. A. 8); N. L. R. B. v. W. B. Jones Lumber Company, Inc., et 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD al., 245 F. 2d 388, 390-391 (C. A. 9); cf. Ray Brooks v. N. L. R. B., 348 U. S. 96, 104 footnote 16. Clearly, then, the Board may be said to possess the legal authority to adopt diverse policies with respect to the assertion of its jurisdiction-and to reverse them if necessary-either in the form of an individual decision or by the adoption of rules with prospective effect. And it is to be regarded as free to- exercise its indicated authority in any manner reasonably calculated to carry out its statutory duties. Optical Workers' Union Local 24859, et al. v. N. L. R. B., 227 F. 2d 687, 691, 229 F. 2d 170 (C. A. 5), cert. denied 351 U. S. 963; Amalgamated Association etc. v. N. L R. B., 238 F. 2d 38, 40 (C. A., D. C.); N. L. R. B. v. Harvey Stoller, 207 F. 2d 305, 307 (C. A. 9), cert denied 347 U. S. 919, and the cases previously cited. The Board's power to proceed generally, however, under Section 10 (b) of the statute, when an unfair labor practice under Section 8 (b) (4) (D) is charged, is qualified by Section 10 (k) of the Act, as amended. With respect to the specific unfair labor practice noted, the latter section provides, generally, 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 em- powered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen. . . . [Emphasis supplied.] And to implement this statutory mandate, the Board has provided-in Section 102.71 of its Rules and Regulations, Series 6, as amended-that its regional directors shall investigate any charges made with respect to the commission of an unfair labor practice under Section 8 (b) (4) (D) of the statute, and that: If it appears to the regional diiector that further proceedings should be instituted, he shall cause to be served on all parties to the dispute out of which such unfair labor practice may have arisen a notice of the filing of said charge together with a notice of hearing before a hearing officer. .. . Obviously, the Regional Director need take no action at all if, after investigation, it appears to him that no prima facie case of a violation has been made cut, and that no "further proceedings" under Section 10 (k), or any other section, are warranted in any event. See Herzog et al. v. Parsons, 181 F. 2d 781 (C. A., D C.). The Rules and Regulations of the Board provide for the conduct of any hearing. And in Section 102.73 they go on to provide for appropriate Board action, upon the close of the Section 10 (k) hearing: . . . to certify the labor organization or the particular trade, craft, or class of employees, as the case may be, which shall perform the particular work tasks, in issue, or to make other disposition of the matter. . . . Section 10 (k) of the statute then requires that, upon compliance by the parties to. the dispute with the decision of the Board, the 8 (b) (4) (D) charge shall be dis- missed. And to implement this requirement the Board has expressly provided-in Section 102.74 of its Rules and Regulations, previously noted-that: If, after issuance of certification by the Board, the parties submit to the regional director satisfactory evidence that they have complied with the certification, the regional director shall dismiss the charge. .. . If no satisfactory evidence of compliance is submitted, the regional director is author- ized to proceed with the charge under Section 8 (b) (4) (D) and Section 10 of the statute; this, of course, means that, under Section 10 (b) in particular, he is given the "power" to issue a formal complaint, and to invoke the Board's process in order to prevent the commission of an unfair labor practice.? See International Long- shoremen's and Warehoasemen's Union, Local No. 16, C. I. O. (Juneau Spruce Corporation), 82 NLRB 650; Los Angeles Building and Construction Trades Council, et al., 88 NLRB 1101, 94 NLRB 415; Bechtel Corporation, 112 NLRB 812; Frank 7 The statute and the regulations make no provision for the disposition of the charge in the event of a Board determination, often a formal hearing, that Board action under Section 10 (k) would not be warranted . See, e. g. , Ship Scalting Contractors Association, 87 NLRB 92 In practice, however, such determinations appear to have impelled the General Counsel to refrain from further action on the basic charge in the case. See Manhattan Construction Company, Inc. v. N. L. R . B, 198 F 2d 320 ( C. A. 10) and compare Wm. F. Traylor, 97 NLRB 1003 ; Roy Stone Transfer Corporation, 99 NLRB 662, Both of these decisions, though articulated in Section 10 (k) proceedings , clearly rest upon policy considerations which appear to contemplate the termination of the cases and the foreclosure of any Section 8 (b) (4) (D ) complaints. LATHERS' LOCAL UNION NO. 252 889 W. Hake, 112 NLRB 1097. Under Section 10 (k), however, a formal arrangement to "hear and determine" the dispute out of which the alleged unfair labor practice arose need not be made if, within 10 days after notice with respect to the filing of the charge in question. 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. . . . [Emphasis supplied.] In order to give effect to this statutory exception, the Board has provided, in Sec- tion 102.72 of its Rules and Regulations, that: If, within 10 days after service of the notice of hearing, the parties submit to the regional director satisfactory evidence that they have adjusted or agreed upon methods of voluntary adjustment of the dispute, the regional director shall with- draw the notice of hearing. . . . [Emphasis supplied.] In this connection, however, the last sentence of Section 10 (k) further provides -that upon the "voluntary adjustment" of the dispute, the Section 8 (b) (4) (D) charge shall be dismissed. And analysis, fortified by experience, has revealed a basic ambiguity in the statutory mandate at this point. Section 10 (k), of course, provides that the Board is neither empowered nor directed to "hear and determine" the dispute out of which an unfair labor practice under Section 8 (b) (4) (D) is alleged to have arisen, upon the submission of evidence, in the alternative, that the dispute has been adjusted, or that the parties have agreed upon a method for its voluntary adjustment. See A. W. Lee, Inc., 113 NLRB 947; Meyer Furnace Co., 114 NLRB 924. It requires the Board to go further, however, and in the face of such a submission, to dismiss the basic charge, as previously noted, only upon the submission of evidence with respect to the "voluntary adjustment" of the dispute. Given its ordinary import, in short, the statute cannot be said to require the dismissal of the basic charge upon the submission of satisfactory evidence that the parties have merely agreed upon "methods for the voluntary adjustment" of the dispute. (It is, of course, arguable that the phrase "such voluntary adjustment" used in Section 10 (k)'s last sentence may properly be held to encompass an agreement upon a method of adjustment, as well as an agreement which embodies an actual adjustment, and that the statutory language under consideration, therefore, may be said to require the dismissal of a basic 8 (b) (4) (D) charge if either type of agree- ment is shown to have been reached. Such a construction of the legislation, how- ever, cannot be characterized as clearly warranted.) The Board, however, has attempted to dispose of this ambiguity by regulation. It has provided in Section 102.72 that, upon the submission of satisfactory evidence that the parties have adjusted their dispute or, alternatively, that they have agreed upon methods for its voluntary adjustment, the Regional Director shall not only withdraw any notice of hearing previously issued, but also dismiss the charge. This attempt on the part of the Board to establish a procedure calculated to cover a situation apparently not dealt with expressly in the statutory scheme presents the problem with which this case is concerned, and permits a joinder of issue. c. The issue considered It is the General Counsel's basic contention that the statute "clearly envisions" the possibility of a complaint proceeding under Section 8 (b) (4) (D), under certain circumstances, without a Section 10 (k) determination. He concedes, however, that Section 10 (k) of the Act, as amended-which merely provides for the dis- missal of the basic charge under Section 8 (b) (4) (D) upon the "voluntary adjust- ment" of the dispute involved-does leave open a question as to the disposition to be made of such charges where the parties "present satisfactory evidence that they have . . . agreed upon methods for the voluntary adjustment of the dispute" but have not yet invoked such methods or have not complied with any voluntary adjust- ment reached. This, of course, is the case now presented .8 It is the contention of the General Counsel, herein, that the entire statutory scheme is predicated upon the supposition that his representatives will cause charges to be investigated and, failing settlement, proceed to issue an appropriate complaint when- 8 Another case, involving the same basic issue, has been referred to the Board for deci- sion. Wood, Wire and Metal Lathers' International Union and its Local Union No. 2, AFL-CIO, at al. (Acoustical Contractors Association of Cleveland ), 119 NLRB 1345. In an Opinion and Order on Motions to Dismiss Complaint issued on January 17, 1957, Trial Examiner Arthur Leff presented a cogent and well-reasoned analysis of the issue. He granted the motions presented , and dismissed the complaint. 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever it is determined, preliminarily, that an unfair labor practice has been committed. Only in Section 10 (k), it is argued, may a provision be found requiring the General Counsel to dismiss a meritorious charge. This provision of Section 10 (k), there- fore, is characterized as inconsistent with the general statutory scheme, since it per- mits the parties by agreement to remedy any situation giving rise to an unfair labor practice under Section 8 (b) (4) (D) and provides for the dismissal of the charge when the situation has been remedied. It is said, of course, that one of the statutory purposes was, clearly, to encourage voluntary action by the parties to eliminate stoppages over the assignment of work. See 93 Cong. Rec. 4034-4035, 6452-6453; Manhattan Construction Company, Inc., 96 NLRB 1045, 1048. The General Counsel argues, however, that the paramount purpose of the legislation, as reflected in the congressional debates and committee reports, was to provide for the prompt elimination of any unjustifiable disruption of commerce caused by a jurisdictional dispute. See S. Rept. 105, 80th Cong., 1st sess., pp. 8, 27; 93 Cong Rec., pp. 1824-1825, 4132, 5014. And he cites, in support of this position, the statutory provision in Section 10 (1) of the Act which permits the Board's regional representative, in appropriate cases, to seek and obtain temporary injunctive relief, without regard to the status of any pending or proposed 10 (k) proceeding, and without regard to the existence of any executory agreement upon a method of voluntary adjustment. S. Rept. 105, 80th Cong., 1st sess., pp. 8, 27. Cf. Herzog et al. v. Parsons, 181 F. 2d 781, 786 (C. A., D. C.). Accordingly, the heart of the General Counsel's contention with respect to the statutory language now under consideration is to be found in the following quotation from his brief: To accomplish its dual purpose of encouraging the voluntary adjustments and protecting the public interest in jurisdictional disputes Congress gave full effect in Section 10 (k) to the distinction between an adjustment of the dispute and "agreed upon methods" for an adjustment by preventing the Board from hearing or determining the dispute if proof of either was submitted, but providing for dismissal of the charge only upon compliance [with] the Board's 10 (k) deci- sion, if any, or upon an actual "adjustment" of the dispute through the agreed upon voluntary methods. This provision for keeping the unfair labor practice charge alive pending actual adjustment through the agreed upon methods clearly was . included in order to authorize the Labor Board to make a determina- tion if one party should become dissatisfied with the results of the agreed upon methods. The preceding sentence in Section 10 (k) too plainly withholds power to proceed through a 10 (k) hearing where there is satisfactory evidence of such an agreement. The only reasonable inference is that Congress intended to keep the charge alive while the dispute continued so that the General Counsel and the Board could, if required, protect the public interest through proceeding under Section 10 of the Act, including Section 10 (1), for appropriate restraint of the violation of Section 8 (b) (4) (D). While I cannot agree that the statute thus construed "clearly envisions" the prosecu- tion of an 8 (b) (4) (D) complaint in the absence of an antecedent Section 10 (k) determination-whenever a party to some "agreed upon method" for the voluntary adjustment of a jurisdictional dispute becomes dissatisfied with the procedure adopted to implement its agreement, or with the result of the agreed-upon method-the Gen- eral Counsel's reading of the statute is certainly a permissible one. In reaching this conclusion, of course, I necessarily reject the Respondent Union's contention that the submission, by the parties to a dispute, of satisfactory evidence with respect to their agreement upon a method for its voluntary adjustment is sufficient as a matter of law to "exhaust the jurisdiction" of this Board, even if one union refuses to abide by the decision reached, pursuant to the agreement, with respect to the underlying dispute. Section 10 (k)'s last sentence can, of course, be construed to imply, at least, that, despite the abandonment of any Board attempt to hear and determine the dispute out of which an unfair labor practice is alleged to have arisen, the basic charge is to be permitted to remain viable, to be dismissed only after a voluntary adjustment is actually effectuated. And, in substance, it is the General Counsel's contention that, under the statute, the submission of satisfactory evidence with respect to the existence of an agreement upon methods for the voluntary adjustment of a jurisdictional dispute should not, itself, be held to call for a final disposition of the basic Section 8 (b) (4) (D) charge, under the law. The charge, it is argued, should be permitted, under these circumstances, to remain viable. And it is contended, further, that the General Counsel, as the Board's designated agent, should be per- mitted, ultimately, to issue a formal complaint on the basis of the charge, if and when he is satisfied that the "agreed upon method" for the voluntary adjustment of the dispute cannot be relied upon to resolve it. LATHERS' LOCAL UNION NO. 252 891 This Board, however, clearly appears to have relinquished any discretion it may have to construe the statute its this fashion, under its Rules. Section 102.72 of the Rules and Regulations expressly provides, as we have seen, that, upon the timely submission of satisfactory evidence with respect to the existence of an agreed-upon method for the voluntary adjustment of a jurisdictional dispute the Regional Director is to withdraw the notice of hearing and dismiss the charge. On its face, this self-denying ordinance would seem to be dispositive of the issue here. The General Counsel argues, however, that this portion of the Rules and Regulations has no application to the situation in this case. His representative insists that the relevant Board's Rules apply only when a Regional Director has determined, initially, to institute a Section 10 (k) proceeding, but that they do not apply when the Regional Director has satisfied himself, on the basis of a preliminary investigation, that an "agreed upon method" for the voluntary adjustment of a jurisdictional dispute exists and therefore determines not to institute a proceeding under Section 10 (k) of the statute 9 This contention, in my opinion, clearly involves a strained construction of the Rule, which merely requires the Regional Director to withdraw any notice issued with respect to a Section 10 (k) hearing, and to dismiss the basic charge, if evidence warranting such action is submitted "within ten days after service" of the notice of hearing. The quoted language, as I view it, cannot properly be construed to fix both the initial date and the terminal date of the period within which relevant evidence must be submitted. Evidence with respect to the existence of an "agreed upon method" for the voluntary adjustment of a dispute clearly can be said to have been submitted "within ten days" after the service of the indicated notice of hearing if it is, in fact, submitted prior to such service In support of his contention, however, the General Counsel refers to the fact that the relevant Board's Rules are contained in a subpart of the Rules and Regulations entitled "Procedure to Hear and Determine Disputes Under Section 10 (k) of the Act." Reference is also made to the fact that Section 102.71 of the Rules provides, inter alia, that "if it appears to the regional director that further proceedings should be instituted" he shall issue a notice of hearing under Section 10 (k) of the statute. On the basis of the language noted, it is argued that the procedure established by the Rules may properly be considered applicable only to cases in which satisfactory evidence of an adjustment, or an agreement with respect to a method of settlement, has not been submitted during the Regional Director's preliminary investigation. The General Counsel argues that: The Board's Rules did not contemplate and are not applicable to a situation such as we have here where a 10 (k) hearing was not initiated, and one of the parties to an agreed upon method of adjustment refuses to comply with, or abide by that method of adjustment, and refuses to abide by the decision made in accordance with that method. It is clear that the statute in Section 10 (k) provides for the dismissal of the charge only in two circumstances: (1) Compliance by the parties to the dispute with the Decision of the Board, or, (2) upon a voluntary adjustment of the dispute. Neither of these circumstances is present here. . . It may not be presumed that the Board intended in a situation like the instant case to direct dismissal of a charge under 8 (b) (4) (D) where a voluntary adjustment is not actually consummated because of the recalcitrance of one of the parties. . To construe the Board's Rules and Statements of Procedure to require dismissal of an 8 (b) (4) (D) charge when methods for adjustment have been agreed to, even though these methods fail to culminate in an actual adjustment of the dispute, as here, is clearly inconsistent with and nullifies the obvious intent of Congress to protect the public interest from the undesirable effect of stoppages over work assignment claims. These contentions were also presented to Trial Examiner Leff in the Eighth Region case involving the Respondent Union's parent organization, previously noted. In 9 The General Counsel concedes, specifically, that Section 102 72 of the Rules and Regu- lations provides for the withdrawal of a Section 10 (k) notice of hearing, and the dis- missal of the basic 8 (b) (4) (D) charge, upon the submission, between the date on which the indicated notice of hearing is served and the date of the formal proceeding's actual inception, of satisfactory evidence with respect to the existence of an "agreed upon method" for the voluntary adjustment of the dispute. He insists, however, that the rule cannot properly be construed to require the dismissal of the basic charge if satisfactory evidence with respect to the existence of an agreed method for the voluntary adjustment of the dispute is submitted in the course of the Regional Director' s prcismsnasy investiga- tion, prior to the issuance of any Section 10 (k) notice of hearing 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his Opinion and Order on Motions to Dismiss Complaint, in that case, they were analyzed and rejected. See the discussion appearing in Trial Examiner Leff's Opinion and Order. I have found the Trial Examiner's analysis pertinent and his conclusions persuasive, in this connection. I would adopt them without change and, accordingly, reject the General Counsel's parallel contention, in this case. In effect, I find, the Board has, by the adoption of the Rules now under consideration, exercised its statutory discretion, under Section 10 of the Act, as amended, to determine that, in jurisdictional dispute cases not expressly covered by the language of Section 10 (k) of the statute, the public interest may be adequately served despite its failure or refusal to act. It is vigorously argued by the General Counsel, however, as we have seen, that the indicated construction of the Board's Rules, despite its superficial plausibility, would nullify the "obvious" intention of Congress to protect the public interest in the face of work stoppages over jurisdictional claims. No contention is made, in this case at least, that the applicable Board's Rules and Regulations are invalid on the basis of an asserted conflict with the statute. It is, however, argued that these Rules may be subject to a double interpretation, one consistent with the statute and the other inconsistent with its terms. And the consistent interpretation, it is said, must prevail as a true reflection of the Board's intent. This argument, of course, necessarily rests upon the General Counsel's basic contention that the only "reasonable" inference to be drawn with respect to the import of Section 10 (k)'s last sentence is an inference that Congress intended to have every basic charge under Section 8 (b) (4) (D) of the statute "kept alive" pending the successful outcome of any private attempt to effectuate the voluntary adjustment of a jurisdictional dispute, so that the General Counsel and the Board could, if necessary, move thereafter to protect the public interest under Section 10 of the Act, if a voluntary adjustment did not, in fact, eventuate. In my opinion, any attempt to characterize the applicable Board's Regulation as ambiguous, or subject to a double interpretation, would be unwarranted. The mere fact that the General Counsel's representative has been able to present for consideration an interpretation at variance with that suggested by the plain language of the Regulation does not, of course, render it ambiguous. Upon the assumption, for the sake of argument, however, that the contention advanced, in the General Counsel's behalf, with respect to the proper interpretation of the Board's Rules in this connection is a colorable one, an extended consideration of the argument that its Board acceptance is warranted, would seem to be advisable.lo A further analysis of the General Counsel's interpretation of the statute, which is basic to his contention with respect to the construction of the Board's Rules, may therefore be warranted. The interpretation of the statute suggested by the General Counsel as expressive of congressional intent has already been noted. In effect, as Trial Examiner Leff has observed, it is the General Counsel's contention that in Section 8 (b) (4) (D) situations, where an "agreed upon method" for the voluntary adjustment of a jurisdictional dispute exists, but no final adjustment has occurred, the statute must be read to permit a direct resort by the Board to an appropriate administrative and injunctive procedure under Section 10 (b), (c), (d), (e), and (1) of the statute, without any need for an intermediate Section 10 (k) determination, or a showing of noncompliance therewith, as a condition precedent to the issuance of a Section 8 (b) (4) (D) complaint. The analysis of this contention by Trial Examiner Leff, in his Opinion and Order on Motions to Dismiss Complaint, once more deserves characterization as closely reasoned and persuasive. See, specifically, the discussion to be found in the Opinion and Order in question. I would adopt the Trial Examiner's observations and con- clusions in their entirety. In the light of the present record, indeed, only one aspect of his analysis deserves additional elaboration. It has been pointed out that the statute, if interpreted in conformity with the General Counsel's view, would seemingly require the Board to pursue a Section 8 (b) (4) (D) charge by the issuance of a complaint even though, at the time, there may still be pending an undetermined arbitration to which all parties have agreed. Tn the Respondent Union's view, at least, this is the precise situation presented by the instant case. Conceding its commitment to accept the Joint Board's authority 10 As Trial Examiner Leff has already noted, the issue presented can, conceivably, be- come quite important in the administration of the statute And the Board, which has the authority to revise its own Rules if it becomes convinced, in the light of additional experience, that a revised rule would better effectuate the statutory objective, may well wish to render more specific a rule of procedure allegedly calculated to permit the prosecu- tion of complaints alleging a Section 8 (b) (4) (D) violation, under circumstances of the type presented herein. LATHERS' LOCAL UNION NO. 252 893 to determine jurisdictional disputes involving lathers in the building and construction industry, the Respondent Union argues that the announced job decision of the private tribunal in question, with respect to the California Electric project, repre- sented the culmination of an "arbitration" in which the Respondent labor organiza- tion was not accorded procedural due process, and that the proceeding, therefore, ought to be treated as incomplete, pending the disposition of the organization' s appeal for a reconsideration of the award. Without regard to the merits, if any, of the reconsideration request addressed to the Joint Board by the Respondent Union, the instant case, therefore, would seem to suggest that Section 8 (b) (4) (D) complaints prosecuted under the General Counsel's interpretation may occasionally require this Board to receive evidence with iespect to the history of pending Joint Board proceedings and to determine, prelimi- narily, that the "method of voluntary adjustment" agreed upon previously by the parties had failed-or would fail-to resolve the dispute. In making such a deter- mination, the Board might well be required to construe the provisions of the Joint Board plan, and to determine whether the parties involved in a jurisdictional dispute have or have not complied with its procedural and substantive requirements. Clearly, this would call for an invasion of the Joint Board's own province. Certainly it would tend, at the very least, to defeat the statutory objective of permit- ting the parties involved in a jurisdictional controversy to adjust their own disputes. See A. W. Lee, Inc., 113 NLRB 947, 951; Manhattan Construction Company, Inc., 96 NLRB 1045, 1048. It is, of course, entirely conceivable that a complaint proceeding, under the circumstances indicated, might result in a Board order which would defeat the arbitration award ultimately rendered, or affirmed on reconsidera- tion or appeal. Under the General Counsel's theory, also, the Board would apparently be required to process a Section 8 (b) (4) (D) complaint, and issue an appropriate order, against a union engaged in proscribed conduct to enforce a jurisdictional award rendered in its favor, which an employer and some other union, theoretically bound by the arbitration agreement, have refused to accept. As Trial Examiner Leff has pointed out, such a result would also seem to be at variance with the statutory policy. Cf. Wm. F. Traylor, 97 NLRB 1003; Roy Stone Transfer Corporation, 99 NLRB 662. To avoid this anomalous result, it is conceivable, of course, that the Board might declare-in the exercise of its administrative discretion-that it would not process a Section 8 (b) (4) (D) charge, under the circumstances indicated, unless and until there has first been a failure by the union charged to comply with the "agreed upon method" for the voluntary adjustment of the dispute, or an award made under it.ii As Trial Examiner Leff has pointed out, this would involve a major modification of the General Counsel's suggested statutory interpretation. In practice, it would add to the statute a second exception to Section 8 (b) (4) (D), pursuant to which labor organizations would then be subject to unfair labor practice prosecution: (1) If they fail to submit satisfactory evidence of compliance with a Section 10 (k) determination; or (2) If a preliminary investigation has satisfied the Board's regional director that the organization is failing or refusing to comply with a private adjustment procedure or award, in a case in which a Section 10 (k) determination would be inappropriate. As Trial Examiner Leff points out, such a construction would certainly be open to legal challenge. Section 10 (k) provides for the dismissal of a basic Section 8 (b) (4) (D) charge either upon "compliance by the parties to the dispute with the decision of the Board" or upon the "voluntary adjustment" of the dispute-and the latter phrase, at least, is clearly subject to interpretation as inconsistent with Board action directed to the enforcement of an involuntary compliance with an arbitration award. It has already been pointed out that there is legislative history open to the interpretation that Congress intended to have the Board enforce com- pliance only with its own determinations, where an "agreed upon method" of voluntary adjustment has failed. S. Rept. 105 on S. 1126, pp. 23, 27; see also H. Conf. Rept. 510 on H. R. 3020, pp. 44, 57. And the United States Supreme Court has recently had occasion to note, in this connection, the unwillingness of '1 The General Counsel's contention in this case, indeed, appears to be predicated upon such a showing ; it is expressly alleged herein that the Respondent Union has failed to comply with its obligations under the Joint Board agreement, both by virtue of its failure to heed the Joint Board's request for a discontinuance of strike activity, in conformity with the procedural requirements of the Joint Board plan, and by virtue of its failure to accept the Joint Board's ultimate job decision. 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Congress to establish any procedure expressly directed to the application of Board sanctions for the enforcement of agreements to arbitrate , or the enforcement of awards made pursuant to them. Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U. S. 448, 452-453, 40 LRRM 2113, 2114, 2115 . In that case, the Court observed that: The bills [which formed the basis of the Labor Management Relations Act in its final form], as they passed the House and the Senate , contained provisions which would have made the failure to abide by an agreement to arbitrate an unfair labor practice . S. Rep. No. 105, 80th Cong ., 1st Sess., pp . 20-21, 23; H R. Rep. No. 245 , 80th Cong., 1st Sess., p. 21. This feature of the law was dropped in Conference . As the Conferences Report stated , "Once parties have made a collective bargaining contract , the enforcement of that contract should be left to the usual processes of the law and not to the National Labor Relations Board." H. Conf. Rep. No. 510, 80th Cong., 1st Sess. p. 42. This aspect of the legislative history, certainly , would seem to support the contention of the Respondent Union, in this case, that the Board may not properly enforce the decision of a private tribunal or compliance with its procedure under Section 8 (b) (4) (D) of the statute. The statutory interpretation suggested by the General Counsel , also, may well raise policy problems . It has already been noted, for example, that the Board, if it were to acknowledge private arbitration awards as having a status equal to its own for enforcement purposes, might be called upon in some cases to approve an arbitration procedure or jurisdictional award in conflict with other statutory policies. (To avoid this possibility, the Board would have to undertake a review of the arbitra- tion procedure which an assertion of its authority would support , in addition to a review of the award , if any, made pursuant to the arbitration agreement. In effect the Board would thus be compelled to serve as an appellate body vis-a -vis the arbitrators.) A review of the legislative history as a whole, however, certainly seems to reflect a congressional desire to have jurisdictional disputes , particularly, adjusted wherever possible by the parties directly involved , in their own way and without governmental interference . In the formulation of Board policy , therefore, with respect to the statutory provision now under consideration , it can certainly be argued that Congress intended the Board to treat the statutory objective as satisfied- and to consider itself relieved of any duty to intervene-when the record establishes that all of the parties affected by a jurisdictional dispute, the neutral employer as well as the interested unions, are bound to achieve a settlement by methods of their own, such as private arbitration , which they are free to enforce themselves , either through sanctions authorized by the agreement itself, or through a civil remedy at law. The existence of such a civil remedy, in State courts at least, will be dependent upon local law. Since the Supreme Court 's decision in the Lincoln Mills case, however, the availability of civil remedies in a Federal forum, under "Federal" law, is clear. With reference to the report of the congressional conferees that the enforcement of collective-bargaining agreements ought to be left to the "usual processes" of the law, the Court observed in the cited case, that: Both the Senate and the House took pains to provide for "the usual processes of the law" by provisions which were the substantial equivalent of § 301 (a) in its present form. Both the Senate Report and the House Report indicate a primary concern that unions as well as employees should be bound to collective bargaining contracts . But there was also a broader concern-a concern with a procedure for making such agreements enforceable in the courts by either party. At one point the Senate Report, supra , p. 15, states , "We feel that the aggrieved party should also have a right of action in the Federal courts. Such policy is completely in accord with the purpose of the Wagner Act which the Supreme Court declared was `to compel employers to bargain collectively with their employees to the end that an employment contract , binding on both parties, should be made...: " And since the Supreme Court in the cited case, and related cases, specifically sanctioned injunctive relief, with respect to the breach of agreements to arbitrate, as a proper exercise of the judicial power under Section 301 (a ) of the Labor Management Relations Act, the General Counsel 's argument that his Section 10 (k) interpretation is essential to preserve the statutory objective of industrial peace, since it alone would permit the invocation of Section 10 (1) injunction action if necessary, would seem to be considerably vitiated. In the light of these considerations , I find no warrant in the policy or language of the statute, or its legislative history, for the adoption of the General Counsel's LATHERS' LOCAL UNION NO. 252 895 view with respect to the import of Section 10 (k) in the context of this case. And I find no reason in law or policy, therefore, to adopt his interpretation of the relevant Board Rule in order to achieve harmony with the statutory mandate. Trial Examiner Leff has suggested another possible interpretation of the statute, albeit one seemingly foreclosed by Board precedent and the policy consideration previously noted, which he has described at length, as follows, in his Opinion and Order: That is to read the statute as requiring the Board to stay its hand in a jurisdictional dispute where the parties have agreed upon their own method to dispose of the dispute without, however, precluding the Board from thereafter intervening in the public interest if such method broke down and failed to achieve a termination of the conflict. Where such a failure occurred-under this interpretation-the Board could view the agreed-upon method as no longer effective; itself determine the dispute in a 10 (k) proceeding; and, if necessary, thereafter process an unfair labor practice complaint. But a Board 10 (k) determination and a showing of noncompliance therewith would still be a prerequisite to the issuance of a complaint... . If, as in this case, the situation giving rise to the Section 8 (b) (4) (D) charge involved a refusal on the part of a labor organization to acknowledge a jurisdictional award made pursuant to an agreement to which it is privy, the Board, presumably, would also be free, if it chose, to determine in the Section 10 (k) proceeding whether the antecedent jurisdictional award is entitled to any respect, or whether it should be recognized as conclusive, in the formulation of a Board order or certification designating "the labor organization or the particular trade craft or class of employees" which is entitled to perform the work task in issue. See Section 102 73 of the Board's Rules and Regulations. By the adoption of such a policy-admittedly a departure from current policy-the Board may conceivably be enabled to achieve the ideal defined by Board Member Jenkins in a recent address to the Fort Worth, Texas, Arbitration and Industrial Relations Conference: Where it can do so-without abandoning its duties to protect rights which the Statute guarantees (despite attempted contractual waiver) to employers, bargaining representatives, individual employees, or to the public-the Board should not, as a matter of policy, interfere in disputes the parties can, or have attempted to, resolve by arbitration or by other peaceful methods of adjustment. [Emphasis supplied.] As Trial Examiner Leff has noted, the achievement of this ideal seemingly would require the reversal of existing Board precedent. A. W. Lee, Inc., 113 NLRB 947; Meyer Furnace Co., 114 NLRB 924. These cases clearly establish the decisional doctrine that, once a method of voluntary adjustment with respect to a jurisdictional dispute has been adopted, the Board will refuse to determine the dispute itself, in a Section 10 (k) proceeding, even where the "agreed upon method" has patently failed to bring about its settlement. The Board's published Rule, however, clearly must be considered conclusive, for the present, with respect to the issue presented in this case. And since it appears, in short, that the Company, Power, the Respondent Union, and the interested Carpenters organization are privy to various agreements which, taken together, establish a method for the voluntary adjustment of the jurisdictional dispute estab- lished by the evidence, dismissal of the Section 8 (b) (4) (D) charge would seem to be mandatory. The General Counsel having failed to effectuate such a dismissal through the Regional Director, a determination dispositive of this aspect of the case is required of me, as the Trial Examiner duly designated in the premises. See Sections 102.25 and 102.35 (h) of the Board's Rules and Regulations. And in the light of the conclusions set forth in this report, I shall recommend the dismissal of the General Counsel's complaint, insofar as it alleges a violation by the Respondent Union of Section 8 (b) (4) (D) of the statute. 2. The secondary boycott issue a. The issue stated With respect to the Section 8 (b) (4) (A) aspect of this case, it is the General Counsel's contention that the Respondent Union, by the establishment of its picket line-and by other acts and conduct-induced and encouraged the employees of Barnes and its various subcontractors to engage in a concerted refusal, in the course of their employment, to perform services for their respective employers. And the labor organization's course of conduct, in this connection, is cited as a statutory violation since it was reasonably calculated, inter alia, to force or require certain 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employers-specifically Barnes, Cramer, and various subcontractors at the California Electric project-to cease doing business with other designated persons. The Respondent Union, apparently, does not challenge the General Counsel's description of its course of conduct. In effect, it concedes that it initiated a picket line at the California Electric project, reasonably calculated to induce and encourage a refusal on the part of "employees" to perform services there. The organization insists, however, that its only object in this connection was to protest a violation of the collective-bargaining agreement to which Barnes, the general contractor, is privy, and that its picket line was, therefore, primary rather than secondary in character. International Rice Milling Co., Inc., et al. v. N. L. R. B., 341 U. S_ 665. On this basis, the dismissal of the complaint in its entirety is requested. b. The dispute with the general contractor The Respondent Union's description of the situation presented here as a primary dispute with the general contractor has a certain element of plausibility. As previ- ously noted, it is the labor organization's specific contention that Barnes, the general contractor, violated the terms of the basic agreement which it was bound to observe- presumably the Master Labor Agreement for Southern California, negotiated and executed by the AGC and various labor organizations-by the execution of a subcontract with a firm which employed carpenters rather than lathers for all of the work involved in the dry wall installation. And analysis suggests, at least, that this contention may have some justification. The Southern California Master Labor Agreement, and its union recognition clause in particular, has been a subject of investigation and interpretation in several Board cases. Cf. Local No. 1400, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et al. (Pardee Construction Company), 115 NLRB 126. Contractors privy to the agreement, I find, have, in the past, recognized its union signatories, and the various subsidiary labor organizations which they represent, as the sole and exclusive bargaining representatives of all of their employees over whom the unions have jurisdiction, as such "jurisdiction" is defined by the Building and Construction Trades Department of their parent federation. And, with respect to employment, the contractors privy to the agreement have, in the past, agreed to call first upon the respective local unions having work and area jurisdiction for the men they may, from time to time, require. As previously noted in this report, the agreement also provides, inter alia, that jurisdictional disputes involving the parties privy to it are to be resolved under the Plan for Settling Jurisdictional Disputes Nationally and Locally designated in this report as the Joint Board plan. In substance, therefore, the plan in question clearly warrants characterization as a plan made a part of the Southern California Master Labor Agreement by reference. In relevant part, it provides for the establishment of the National Joint Board for the Settlement of Jurisdictional Disputes in the building and construction industry, calls for the designation of a Joint Board chairman, and goes on to provide, further, that: The Chairman and Joint Board shall have the authority to establish such procedural regulations and administrative practices as may be required for the effective administration of this agreement, provided such regulations and practices are consistent with the expressed terms of this agreement. [Emphasis supplied.] Pursuant to its procedural regulations and administrative practices, the Joint Board is assigned the duty of considering and deciding jurisdictional dispute cases in the building and construction industry which may be referred to it by any of the inter- national unions involved, or an employer directly affected by the dispute on the work in which he is engaged, or by a participating organization representing such an employer. With respect to Joint Board procedure, the plan now under consideration provides for an investigation of the claims of the disputants, whenever a notice of dispute is filed, to determine whether or not a disposition of the opposing claims has already been achieved pursuant to a previous "decision of record" or "recorded agreement" between the parties to the dispute. If the Joint Board determines that such a disposition has been achieved, it is required to issue a ruling as to the decision or agreement which governs the case, and to determine which disputant has a rightful claim to the work under the agreement or decision of record. If it finds that the dispute is not covered by a decision or agreement of record, the Joint Board is directed to render a "job decision" with respect to which it must, among other LATHERS' LOCAL UNION NO. 252 897 things, consider established trade practice. Such job decisions , upon issuance, are to be declared effective only with respect to the particular job on which the dispute occurred. (Note that the Joint Board decision in this case, previously cited, involves such a job decision.) Job decisions rendered by the Joint Board may be appealed to a hearings panel, under the plan, by any of the participating national or international unions involved, or they may be referred to such a panel by Joint Board action. The plan provides for a continuance of work by the disputants, however, in the following terms: ARTICLE V. Continuance of Work-Sec. 1. Pending a decision of the Board or such settlement as may be arrived at through the office of the Chairman of the Joint Board, there shall be no stoppage of work arising out of any jurisdictional dispute. Members of organizations affiliated with the Building and Construction Trades Department shall continue to work on the basis of their original assign- ments, provided no employer will assign employees to perform work contrary to decisions or agreements of record, or established trade practice. ([Emphasis supplied.] Consistently with this provision of the plan, the procedural rules and regulations of the Joint Board include an express provision with respect to the maintenance of operations on going projects. And, in this connection, they define each contractor's responsibility in the event of a jurisdictional dispute as follows: 1. The contractor who has the responsibility for the performance and in- stallation shall make a specific assignment of the work. For instance, if con- tractor A subcontracts certain work to contractor B, then contractor B shall have the responsibility for making the specific assignment for the work included in his contract. If contractor B in turn shall subcontract certain work to con- tractor C, then contractor C shall have the responsibility for making the specific assignment for the work included in his contract. 2. The assignment to be made by the contractor shall be according to the following bases: (a) Where a decision of record applies to the disputed work, or where an agreement of record between the disputing trades applies to the disputed work, the contractor shall assign the work in accordance with such agreement or decision of record. . (b) Where no decision or agreement under (a) applies the contractor shall assign the disputed work in accordance with the established practice in the local area. The local area for the purpose of determining the established practice shall be defined ordinarily to mean the geographical area of local building and construction trades council in which the project is located. [Emphasis supplied.] In the event of a dispute prior to a specific work assignment, where no decision or agreement of record applies, or where there is no predominant practice in the local area, the responsible contractor is directed to make a specific assignment according to his best judgment, after consultation with the representatives of each trade con- testant and the local contractors association with respect to the established practice. The rules of the Joint Board require that any assignment of work made by the responsible contractor, in accordance with the indicated bases, shall be continued without alteration, unless the Joint Board issues a different direction, or the inter- national unions involved agree otherwise. The responsibility of the unions privy to the Joint Board plan is defined in its procedural rules and regulations as follows: When a contractor has made a specific work assignment in accordance with the procedures outlined above . all unions shall remain at work and process any complaint over a jurisdictional dispute in accordance with the procedures herein established by the Joint Board. Any union which protests that a con- tractor has failed to assign work in accordance with the procedures specified above, shall remain at work and process the complaint through its international office. The Joint Board is prohibited from taking action on protests directly from local unions or building and construction trades council. [Emphasis supplied.] International unions, however, may file with the Joint Board a protest against the work assignment of a contractor on a particular project. The required content of the protest is designated in the applicable rule, and the protesting labor organization 483142-59-vol 120-58 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is directed, inter alia, to indicate the basis of its protest with respect to the contractor's assignment and to cite any decision or agreement of record on which its protest is based. When no decision or agreement of record is deemed applicable, the inter- national union involved is required to cite the bases for its protest of the assignment. International unions are also authorized to notify the Joint Board of a work stoppage engaged in by another union. Any international union directed by the Joint Board to order the return of men to work, or to furnish men to a project, in a jurisdictional dispute is declared to be under obligation to comply promptly with the Joint Board's order, pursuant to its rules. The general president of the international union, specifically, is directed, by rule, to achieve compliance with the Joint Board's cease work-stoppage order, and to use all of the labor organization's authority to secure such compliance. For any failure on the part of the general president of an international union, in this connec- tion, certain sanctions within the competence of the Joint Board and the Building and Construction Trades Department are declared to be applicable. The procedure of the Joint Board, pursuant to its rules and regulations, provides for certain action to be taken by the chairman of the Joint Board upon the receipt of a notice of work stoppage from the contractor involved (section I, Contractor's Responsibility, subsection 4), or an international union (section I, Union's Responsi- bility, subsection 3). And other responsibilities are delegated to the Joint Board chairman in the event of receipt of notice from an international union that a con- tractor subject to the Joint Board Plan for the Settlement of Jurisdictional Disputes has failed to follow the procedural rules of the Joint Board in connection with a disputed work assignment. Upon the Joint Board's receipt of protest of work assign- ment from an international union or a request for a job decision from a contractor, its rules require it to proceed to make a job decision: . provided, however, the Joint Board will not make a job decision in a jurisdictional dispute while there is a work stoppage. . . . Notice of any request for a job decision is to be sent promptly by the Joint Board chairman to the international unions directly involved in the dispute, and each inter- ested international union is allowed a fixed period of time within which to advise the Joint Board of its position. The Joint Board's procedural rules and regulations also provide that: In making a job decision, the Joint Board shall first investigate the claims of the disputing International Unions to determine whether or not a disposition has been made by a decision or agreement of record or by a national agreement between the disputing trades filed with the Joint Board. If the Joint Board finds such a decision or agreement to be applicable to the particular set of circum- stances, it shall issue a job decision which determines which craft has the rightful claim to the work under such national decisions and agreements, identifying the applicable decision or agreement of record and quoting the controlling language of the decision or agreement of record. If the Joint Board finds that the dispute is not covered by such national decisions or agreements, it shall render a job decision in its discretion on one of the following basis: Established trade practice. Area practice. In the event of a Joint Board decision to process a dispute on the basis of area practice, the international unions involved are to be given notice and an opportunity to submit evidence with respect to the relevant area practice. The notice must include a clear definition of the work as to which area practice information is to be secured, and a definition of the area from which evidence will be received-which area is to be the same for both trades and is to be, unless otherwise specified, the geographical jurisdiction of the local Building and Construction Trades Council within whose territory the project is located. Job decisions of the Joint Board must indicate that they are predicated upon the particular facts and evidence before the Joint Board regarding the dispute, and that they are to be effective on the particular job only. The affected unions and the contractors involved are directed to comply promptly with the Joint Board's job decision. International unions, however, are granted the privilege, if they consider any decision rendered erronerous, of requesting the Joint Board to re- consider its job decision. And the procedural rules of the Joint Board provide for hearings by the Board in the event of any request for reconsideration. Under the AGC Master Labor Agreement for Southern California, which clearly incorporates by reference both the Joint Board Plan for the Settlement of Jurisdic- LATHERS' LOCAL UNION NO. 252 899 tional Disputes and the procedural rules issued by the Joint Board thereunder, it is, of course, arguable at the very least that the assignment of the narrowly disputed work in this case to carpenters involved a breach of a contractual obligation on the part of Power, as the subcontractor immediately responsible for the performance of the disputed work.12 The available evidence in this connection , for example, clearly establishes Buck's reliance on the old jurisdictional agreement between the Carpenters and the Respondent Union's parent organization , to which reference has already been made. This agreement clearly constituted an "agreement of record" between the disputants ; and the Joint Board has recognized it as such an agreement. Superficially considered, it would at least seem to lend credence to Buck's claim that the installation of "metal track" and nailable metal studs should have been recog- nized by Power as lathers' work, under the work assignment standards established pursuant to the Joint Board plan summarized previously in this report .13 Con- ceivably, it could also be argued that Barnes, the general contractor , breached its contractual commitment under the Southern California Master Labor Agreement to respect the "work and area jurisdiction " of the Respondent Union by its failure to insist that the latter organization 's jurisdictional claim with respect to the disputed work be recognized and taken into account by any subcontractor bidding for the dry-wall installation contract. The contractual duty attributable to Barnes in this connection, however, would seem to be implied , rather than express, in the Master Labor Agreement . And the Respondent Union's allegation that it considered Barnes guilty of a contract breach in the premises appears, therefore, to be much less justified than its contention that Power has breached a contractual commitment. Upon the entire record, however, I find it unnecessary to consider this refined question. Whatever justification the Respondent Union may have had for its juris- dictional claim, under the Southern California Master Labor Agreement and the work assignment criteria made a part of the agreement by reference -specifically, the old agreement of record between the Carpenters and the Respondent Union's parent organization , and the established practice in the local area with respect to the assignment of the disputed work-there can be no doubt that the Respondent Union's dispute with Barnes and Cramer , at least, was secondary in character. (For this reason, inter alia, I have given no consideration to the Respondent Union's present contention that the Joint Board's job decision with respect to the disputed work in this case should be considered a nullity. In connection with its motion for a continuance at the outset of the case , the Respondent Union did argue vigorously that the Joint Board's procedure in the premises warrants characterization as revelatory of a disregard for due process, since the respondent labor organization received no formal notice with respect to the initiation of the Joint Board proceedings, and since it did not, thereafter, have an opportunity to present evidence , directly, in support of its jurisdictional claim. The labor organization therefore requested the continuance noted, in order that the Joint Board might have time to accord it due process, and to act upon its request for a reconsideration of the job decision issued with respect to the disputed work. Although I denied the motion for a continuance, forthwith , I subsequently invited the parties to comment upon the validity of the Joint Board proceedings , and their pertinency . They have supplied me with their views. Upon reflection , however, I am satisfied that an evaluation of 19 See the Joint Board's definition of a contractor's responsibility in connection with work assignments , previously noted 18 The Respondent Union's counsel also sought to adduce evidence with respect to the "established practice in the local area" in regard to the assignment of such work. Since the evidence in question was offered , prima facie, to support the Respondent Union's basic contention that the Board 's disposition of the present Section 8 ( b) (4) (D) charge ought to rest upon a determination with respect to the merits of its jurisdictional claim, I re- jected the offer of its counsel to prove the established practice in the local area with respect to the assignment of nailable stud installation work. No indication was given, at the hearing, that the rejected evidence might also be significant with respect to the nature of Power's responsibility, under the Joint Board plan , in connection with specific work assignments. Should the Board wish to consider , on its merits , the Respondent Union's contention that Power and the general contractor in this case were actually guilty of a contract violation , by virtue of their failure either to direct or effectuate a specific work assignment pursuant to an agreement of record , or pursuant to the established work practice in the local area , it may wish to reverse my action and receive the proffered evidence In the light of the recommendation set forth hereinafter with respect to the secondary boycott aspect of this case , however, I find it unnecessary to reverse my own disposition of the matter at this time. 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Joint Board's procedure and its substantive award is not essential to a proper disposition of the present case. With respect to the issues raised under Section 8 (b) (4) (D) I have already indicated my view that the General Counsel's case is fatally defective; my reasons for reaching this conclusion would hold regardless of any judgment which might be articulated as to the propriety of the Joint Board's procedure in the premises. And with respect to the issues now raised under Section 8 (b) (4) (A) I am satisfied that the asserted invalidity of the Joint Board proceed- ing, even if established, would not provide the Respondent Union with an effective defense. Even a conclusion that the Joint Board ought to have recognized the union's jurisdictional claim as meritorious would not be sufficient to justify or excuse the invocation of pressure directed to a secondary employer.) These employers clearly cannot be held responsible for the specific work assign- ment which the Respondent Union has protested. The general contractor, of course, could have taken cognizance of the Respondent Union's claim with respect to the craft skill required in connection with the installa- tion of "metal track" and nailable studs, when it set the bid specifications for its projected dry-wall subcontract. And in the absence of such a specification by the general contractor, Cramer could have established one in calling for bids on the actual dry-wall installation work.i'i In the absence of any such bid specification, however, Power obviously retained complete discretion with respect to the specific work assignment in dispute. (The general contractor's counsel, in this case, has so stated. While his observation cannot be considered a statement with evidentiary value, nothing in the record raises doubt with respect to its accuracy.) And Power chose to assign carpenters already in its employ, rather than to employ lathers. Under the Joint Board plan, and in the light of the work assignment criteria out- lined in the Joint Board's procedural rules, Power's decision in this connection may have involved an improper exercise of its discretion. There is nothing in the record, however, to establish that Power's decision was dictated, or even influenced, by Cramer or the general contractor at the California Electric project. When the Respondent Union, therefore, established a picket line to publicize the fact that Cramer and Barnes were unfair, its picket signs could only be evaluated, realistically, as an announcement that Barnes and Cramer would have to cease doing business with Power, because of the subcontractor's failure or refusal to reassign the disputed work. And I so find. The only effective course of action open to the general contractor and the prime subcontractor at the project, after the establishment of the Respondent Union's picket line, was one involving a direction that Power withhold performance of the disputed work, pending a resolution of the dispute or the termination of its installation contract. And, as a practical matter, there can be no doubt that this was an "object" of the Respondent Union's picket activity. The Respondent Union's business agent, it is true, never did suggest explicitly that Power's subcontract ought to be terminated. As the General Counsel has pointed out, his position, throughout the period now under consideration, was that the Respondent Union's picket line had been established because part of the work being done by the carpenters in Power's employ "belonged" to lathers, and because the union wanted the work to be assigned to lathers. Nevertheless, there can be no doubt, as the General Counsel has also pointed out, that: By its picketing, Respondent on various occasions caused Barnes, the prime contractor on this job, to order Power Brothers to cease doing the work in dispute in order to keep the construction job going. And the Respondent Union, of course, can be presumed to have intended- this "natural consequence" of its course of action. Radio Officers' Union, etc., AFL v_ N. L. R. B., 347 U. S. 17. Upon the entire record, therefore, I find immaterial the failure of the Respondent Union to articulate, specifically, an objective proscribed under Section 8 (b) (4) (A) of the statute, and conclude that its interest in such an objective may be inferred, in the light of its stated objective and the reasonably fore- seeable consequencies of its course of action. Cf. District Council of the United Brotherhood of Carpenters, etc. (Artcraft Venetian Blind Manufacturing Co.), Ill NLRB 644, 647; 110 NLRB 2162. In the cited case, the available evidence clearly established the express intent of the labor organization involved to force the general contractor to cancel an agreement with a designated subcontractor and sub- contract the work involved to another firm, so that members of the labor organization could be assigned to the work in question. In this case, on the other hand, the 14 It should be noted that nothing in the present record even suggests that Cramer was under a contractual obligation, express or implied, to recognize the Respondent Union's jurisdictr^)nal claim LATHERS' LOCAL UNION NO. 252 901 -Respondent Union's Section 8 (b) (4) (A) objective was not as explicitly stated; its existence as an operative factor in the union's decision to establish a picket line -certainly may, however, be inferred. The Board, in short, is not confronted, in the present case, with a record which contains no intimation whatever of a Section 8 (b) (4) (A) objective attributable .to the respondent labor organization . Cf. Local 169, United Brotherhood of Car- .penters, etc., AFL-CIO ( W. H. Condo), 119 NLRB 583. And there would seem to be no necessity, therefore, to determine that a Section 8 (b) (4) (D ) viola- tion, if established by the evidence , would also constitute a violation of Section 8 (b) (4) (A) automatically . The available evidence in this case , as I see it, clearly warrants an affirmative determination with respect to the existence of a union objec- -tive proscribed under Section 8 (b) (4) .(A) of the statute, even though its existence is to be inferred rather than found as an obvious fact. (No contention is made, in this case, that the Respondent Union 's course of -conduct should be treated, under the statute, as subject to interdiction under Section .8 (b) (4) (D ) or not at all. Cf. Local 562, United Association of Journeymen and Apprentices of the Plumbing and Pipe fitting Industry , et al. (Northwest Heating -Company ), 107 NLRB 542 ; Local 169, United Brotherhood of Carpenters, etc., AFL-CIO, supra. And, indeed, in the light of the conclusions reached in this report with respect to the 8 (b) (4) (A) objective attributable to the Respondent Union, :such a contention would clearly warrant rejection . The Board has already had occasion in the Northwest Heating case, to note that Section 8 (b) (4) (A) and 8 (b) (4) (D ) are not mutually exclusive . A remedial order directed to the Respondent Union's secondary boycott activity, therefore, may clearly be issued-if warranted by a preponderance of the evidence-regardless of the fact that an order directed to an 8 (b) (4) (D ) violation, based upon the same facts, might not, as in this case, be considered appropriate.) Additional support for my conclusions with respect to the existence of a union objective subject to interdiction under Section 8 (b) (4) (A), also, may be found in another aspect of the situation now under consideration . Under the Act, as amended, it is now , well settled that a picket line at a secondary employer 's premises, when established to aid a union involved in a primary dispute with another employer, represents a form of pressure on the secondary employer which , absent exceptional -circumstances , is statutorily proscribed . Circumstances sufficient to excuse the establishment of a picket line at the secondary employer's place of business, however, have been held to exist when an integral part of the primary employer's business, which is the "situs" of the union 's dispute with that employer, has come temporarily to rest on the secondary employer's premises. Moore Dry Dock Company, 92 NLRB 547, 548-549. In such circumstances, the Board has held that the union involved in the dispute may picket the primary employer, at the site which it shares temporarily with the secondary employer, if the following conditions are met: 1. The picketing is strictly limited to times when the situs of the dispute is located on the secondary employer 's premises. 2. At the time of the picketing the primary employer is engaged in his normal business at the situs. - - 3. The picketing is limited to places reasonably close to the location of the situs. 4. The picketing discloses clearly that the dispute is with the primary employer. - In the articulation and application of this doctrine , this Board has sought to balance the rights of the respective parties-specifically , the right of a labor organiza- tion, on the one hand, to advertise its primary dispute at the place where the primary -employer is to be found, and the right of a secondary employer, on the other, to be free from the pressures engendered by a picket line in connection with a dispute not its own-and it has permitted limited picketing at a common job site if the conditions noted are met. As the General Counsel has pointed out , however, the conditions for such "common situs" picketing have clearly not been met in this case. The available evidence , it is true, does indicate that the Respondent Union made an effort, at least, to maintain its picket line only while Power's employees were engaged in the performance of the disputed work at the California Electric project. And we may infer, accordingly, that at the time of the picketing Power was engaged in its "normal business" at the project . The record, however, will clearly support .a conclusion that the Respondent Union's picket line was not spatially limited to places reasonably close to the "situs" of its primary dispute with Power as the sub- contractor immediately responsible for the disputed work assignment. To enforce its demands , the labor organization placed a picket line at the project which effectively patrolled entrance areas utilized by various employees engaged in building A work, some distance from the lot on which buildings B and C were under construction, at a time when no Power employees were engaged in work at the building A location . And when Power, subsequently , proceeded to assign car- 902 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD penters to the disputed work in building A, after its partial completion of buildings B and C, the Respondent. Union continued to picket the single entrance to the lot which included the latter 'buildings, despite the fact that Power's employees were no longer there. The General Counsel's position, in this connection, is set forth in his brief as follows: As the situs of the-dispute is restricted to the buildings in which Power's em- ployees were working, and as the jobs were separated by the street with different entrances, it is clear that by extending the picket line to Building A when the work was in Building B, and to Building B and C after the work was in Building A, the Respondent's only purpose was to carry its appeal beyond Power's employees and to extend it to employees of neutral secondary employers, like Barnes and other subcontractors. I find merit in this contention, and conclude that the Respondent Union's picket line was not limited to places reasonably close to the situs of its dispute with the primary employer in this case. It is obvious, also, that the picket signs utilized by the Respondent Union did not disclose, clearly, that its dispute lay with Power as the employer primarily responsible for the disputed work assignment. When its picket line was established, the signs utilized by the Respondent Union designated Cramer as the "unfair" employer. Subsequently Barnes, the general contractor , was designated as the employer unfair to the respondent labor organization. As previously noted, how- ever, the Respondent Union had no immediate dispute with Cramer, an employer with whom it had no contractual privity. And its alleged dispute with Barnes, as we have seen, was clearly secondary in character. By virtue of its failure to disclose that its picket line was intended to protest a course of conduct attributable only to Power, the Respondent Union must be found guilty of a failure, in this respect also, to achieve conformity with the Board-established and judicially approved standards set forth above for lawful picketing at a common situs.15 I find the Respondent Union's failure to observe these limitations, accordingly, indicative of. its intent to evoke economic pressure against "secondary" employers. There can be no doubt, as the General Counsel alleges, that the Respondent Union's picket line was established with the reasonable expectation that it would lead to a cessation to all construction activity at the California Electric project. And, also, there can be no doubt that the picket line was intended, ultimately, to do more than carry a message to Power and its employees. Viewed realistically, the available evidence 'provides ample justification for a conclusion that the Re- spondent Union's course of conduct was reasonably calculated to force or require Barnes to accomplish the removal of Power from the project. Conceivably the achievement of this objective might have required the general contractor to termi= nate its agreement with Cramer, and thus bring about Power's removal as the ultimate installation subcontractor. Alternatively, however, the Respondent Union's conduct may be construed, with equal logic, as an attempt to force or require Barnes to compel Cramer to terminate its agreement with Power and to execute an installa- tion subcontract thereafter with a firm committed to employ lathers in the perform- ance of the disputed work. The Respondent Union's liability in the premises, however, would seem to be clear in either event. Without regard to the particular technique which the general contractor herein might ultimately be expected to employ in the course of capitulation, the Respondent Union's objective, in this case, may be considered statutorily proscribed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities attributable to the Respondent Union, set forth in-section III, above, since they occurred in connection with the operation of the Company and Power 1 The Board has held with judicial approval that a union's failure to maintain a picket line which satisfies the limitations established in the Moore Dry Dock case may be guilty of an unfair labor practice. With respect to a union's failure to limit Its. picket line to places reasonably close-to the situs of its primary dispute. see Gotham Broadcasting Corpo- ration, " 110 NLRB 2166, enfd. 226 F. 2d 900 (C. A. 2) ; Schauer v. Hightoay Track Drivers, 230 F. 2d 572 (C. A: 3), affirming a District Court injunction ; Washington Coca Cola Bottling Works, Inc., 107 NLRB 299, enfd. 220 F. 2d 380 (C. A., D. C.) ; National Trucking Company, 111 NLRB 483, enfd. 228 F. 2d 791 (C. A. 5). With respect to the Union's failure to disclose clearly that its dispute is with a primary employer, see Hoosier Petroleum Company, Inc., 106 NLRB- 629, enfd. 212 F. 2d 216 (C. A. 7) ; Professional and Business Men's ' Life Insurance Company, 108 NLRB 363,' enfd. 218 F. 2d 226 (C.A.10).. RADIO & TELEVISION STATION WFLA 903 as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead, and in this instance have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondent Union engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the statute. Specifically it has been found that the Respondent Union, by its officers, agents, and designated representatives, has induced or encouraged the employees of James I. Barnes Construction Company and various other employers to engage in a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, materials, or commodities or to perform any services for their respective employers with the object of forcing or requiring James I. Barnes Construction Company and Cramer Acoustics to cease doing business with Power Brothers, Inc , because of the latter's failure or refusal to employ lathers for a part of the work involved in the performance of its contract to install dry-wall material at the California Electric job. It will be recommended therefore that the Respondent Union cease and desist from such conduct, and that it post notices at appropriate places, declarative of its intention to do so. In the light of the foregoing findings of fact, and upon the entire record in the case, I have reached the following: CONCLUSIONS OF LAW 1. James I. Barnes Construction Company and Power Brothers, Inc., are em- ployers engaged in business activities which affect commerce, within the meaning of Section 2 (6) and (7) of the Act, as amended. 2. Lathers' Local Union No. 252, Wood, Wire and Metal Lathers' International Union, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act, as amended. 3. The above-named labor organization has engaged in an unfair labor practice within the meaning of Section 8 (b) (4) (A) of the Act, as amended, by inducing or encouraging the employees of James I. Barnes Construction Company, and vari- ous other employers, to engage in a strike or a 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, with the object of forcing or requiring James I. Barnes Construction Company and Cramer Acoustics to cease doing business with Power Brothers, Inc., because of the failure or refusal of the latter enterprise to employ lathers for a part of the work involved in the performance of its dry-wall construction contract at a construction job in San Bernardino and Rialto, California. 4. The aforesaid unfair labor practice is an unfair labor practice affecting com- merce within the meaning of Section 2 (6) and (7) of the Act, as amended. 5. No adequate basis has been established, under the Act, as amended, for a conclusion that the above-named labor organization has engaged in an unfair labor practice, within the meaning of Section 8 (b) (4) (D) of the Act, as amended„by the course of conduct described above. [Recommendations omitted from publication.] Radio & Television Station WFLA (The Tribune Company) and International Brotherhood of Electrical Workers, Local Union No. 108, AFL-CIO, Petitioner. Case No. 192-RC-248. May 12, 1958 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Rose Mary Filipowicz, 120 NLRB No. 121.