Millwrights Local Union No. 1102, Etc.

MILLWRIGHTS LOCAL UNION NO. 1102, ETC. 513 Millwrights Local Union No. 1102, United Brotherhood of Car- penters and Joiners of America, AFL-CIO; Carpenters Dis- trict Council of Detroit, Wayne and Oakland Counties and Vicinities, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Don Cartage Company Millwrights Local Union No. 1102, United Brotherhood of Car- penters and Joiners of America , AFL-CIO; Carpenters Dis- trict Council of Detroit, Wayne and Oakland Counties and Vicinities, United Brotherhood of Carpenters and Joiners of America, AFL-CIO; Detroit and Wayne County, Oakland and Macomb Counties, Michigan Building and Construction Trades Council and John Quinn. Cases Nos. 7-CD-97-1 and 2 and 7- CD-97-3,4, and 5. August 11, 1965 DECISION AND ORDER APPROVING SETTLEMENT AGREEMENT AND QUASHING NOTICE OF HEARING This is a proceeding under Section 10 (k) of the National Labor Relations Act, as amended, following the filing of charges by. Don Cartage Company, hereinafter called Don Cartage, and John Quinn, an individual, under Section 8(b) (4) (D). The charges allege, in substance, that on or about March 3, 1964, Respondents Millwrights Local Union No. 1102, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, hereinafter called Millwrights 1102; Carpenters District Council of Detroit, Wayne and Oakland Counties and Vicinities, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, hereinafter called Carpenters Council; and Detroit and Wayne County, Oakland and Macomb Counties, Michigan Building and Construction Trades Council, here- inafter called Detroit Trades Council; engaged in, and induced and encouraged, a work stoppage in order to force or require Don Cart- age and Ternstedt Division, General Motors Corporation, herein- after called Ternstedt , to assign particular work to members of Respondent Millwrights 1102 rather than to members of Riggers and Machinery Erectors, Machinery Movers Local No. 575, Inter- national Association of Bridge, Structural and Ornamental Iron Workers of America, AFL-CIO, hereinafter called Riggers 575. A hearing was held on various dates from April 30 through July 31, 1964, before Hearing Officer Milton Fischer. Thereafter, on May 20, 1965, Respondents Millwrights 1102 and Carpenters Council, and the Acting Regional Director for Region 7 entered into a settlement 154 NLRB No. 45. 206-446-66-vol. 154-34 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement whereby the aforesaid Respondents agreed that they were not: ... entitled by means proscribed by Section 8(b) (4) (i) and (ii) of the National Labor Relations Act, as amended, to force or require Don Cartage Company to assign certain disputed job tasks performed by it, involving the erection and installation of machinery and equipment at Ternstedt Division Plant No. 9, General Motors Corporation, Detroit, Michigan, to employees who are members of, or represented by, Millwrights Local No. 1102 rather than to employees who are members of, or repre- sented by, [Riggers 575] ... to whom the work was assigned by Don Cartage Company. The Unions further withdraw any re- quest for assignment of said work performed by Don Cartage Company at Ternstedt Division Plant No. 9, General Motors Corporation, Detroit, Michigan. On May 28, 1965, the Board issued a notice directing Riggers 575, Don Cartage, Michigan Cartagemen's Association, Heavy Haulers' Division, and John Quinn to show cause "why the Board should not approve the Settlement Agreement and issue a Decision and Order Quashing the Notice of Hearing." Thereafter, Don Cartage, Michi- gan Cartagemen's Association, John Quinn, and Riggers 575 filed answers opposing approval of the settlement agreement.' Having duly considered the terms of the settlement agreement, and the responses to the notice to show cause, the National Labor Rela- tions Board has concluded that the policies of the Act will be effectuated by approving the settlement agreement and quashing the notice of hearing. In reaching this conclusion, we have considered the arguments of the Charging Parties, John Quinn and Don Cart-, age, and of the Intervenor, Michigan Cartagemen's Association, that they have not approved the settlement agreement, that at the 10 (k) hearing the parties had agreed that the Board should make a juris- dictional award extending beyond the precise dispute at the Tern- stedt Building project which led to the filing of the present charges, and that the parties have spent considerable time and money on the 10 (k) hearing and on briefs to the Board in the expectation that the Board would permanently resolve the fundamental dispute between the two unions. The arguments of the opponents of the settlement agreement are weighty, but we believe that they are overbalanced by other con- siderations discussed below, which justify the Board in refusing at 'These parties have also requested oral argument . As the record herein , Including the briefs and responses of the parties, adequately presents the issues 'and positions of the parties, the request are hereby denied. MILLWRIGHTS LOCAL UNION NO. 1102 , ETC. 515 this time to make an award which extends beyond the particular dispute at the Ternstedt project. The settlement agreement does resolve this dispute. The present dispute relates to certain work involved in the dis- mantling, moving, and erection of heavy machinery and equipment, which has been a bone of contention between Millwrights 1102 and Riggers 575 for more than 20 years. Before 1956, many unsuccess- ful efforts were made to resolve the dispute, including efforts by Building and Construction Trades Department of the AFL-CIO, National Joint Board for Settlement of Jurisdictional Disputes, on- the-job adjustments, and agreements between the parent Interna- tionals and the locals. All these proved unavailing. In 1956, the presidents of the Internationals and of the locals involved in the dispute appointed Dr. John T. Dunlop to investigate the conflicting -claims and formulate a solution. Dr. Dunlop prepared an award which divided the work involved in "unloading, moving, handling, placing, erecting, assembling, adjusting, aligning, and leveling of all machinery and machine parts" between the two unions. On May 23, 1957, both locals as well as their parent Internationals signed the award, agreeing to be bound thereby. This award was still binding upon the unions, although not upon the employers who were not parties thereto, at the time of the 10 (k) hearing in 1964.2 The work assigned to members of Millwrights 1102 following the picketing conformed with the award signed by the unions. On February 2, 1965, after the completion of the hearing in this case and of the work in dispute at the Ternstedt project, the Build- ing and Construction Trades Department, AFL-CIO, of which the parent Internationals of Millwrights 1102 and Riggers 575 are mem- bers, Associated General Contractors of America, and participating Specialty Contractors Employers' Associations, signed an agreement at the White House reconstituting, effective April 1, 1965, the National Joint Board for Settlement of Jurisdictional Disputes and establishing new standards and new appeals procedures for the settle- ment of such disputes.3 A "Joint Release by Representatives of 2 An agreement between unions establishing machinery for resolving a jurisdictional dispute to which the employer has not adhered is not "an agreed upon method" for its voluntary adjustment dispositive under Section 10 (k) of the Act. Local 'Union No. 68, Wood, Wire and Metal Lathers International Union, AFL-CIO (Acoustics & Specialties, Inc.), 142 NLRB 1073, 1076. However, an agreement between unions settling a jurisdic- tional dispute is a relevant and important factor in determining who is entitled to the work in controversy. International Association of Machinists, Lodge No. 1743, AFL- CIO (J. A. Jones Construction Company ), 135 NLRB 1402; Local Union No. 68, Wood, Wire and Metal Lathers International Union, AFL-CIO (Acoustics & Specialties, Inc.), supra. By giving effect thereto, the Board has said, it "will be encouraging unions to settle such disputes by agreement, a desirable policy." Local Union No. 68, Wood, Wire and Metal Lathers International Union (AFL-CIO ) (Acoustics & Specialties, Inc.), supra, at 1079. 3 Twin City Tile and Marble Company ( Operative Plasterers and Cement Masons Inter- national Association et al.), 152 NLRB 1609. 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Labor and Management in the Construction Industry" commented- on the new agreement as follows: A new labor-management agreement for the peaceful and. orderly settlement of jurisdictional disputes in construction in- dustry was announced today. It is designed to prevent the loss of working time due to such disputes in private and public construction projects. While the agreement was signed at a White House ceremony and its purpose was commended by President Johnson, the gov- ernment is not involved in either its adoption or its operation. The agreement provides for major reorganization of the machin- ery of the National Joint Board for the Settlement of Juris- dictional Dispu`es... . Major changes included in the new agreement call for: 1. Establishment of a new Appeals Board, headed by an im- partial umpire, to render final decision. In the past any appeal from a decision of the National Joint Board could be taken only to the same tribunal. 2. Protection of the interests of the consumer in the settlement of jurisdictional disputes, with due regard given to such factors as efficiency and economy of operation. 3. Definition of the criteria to be used by the Joint Board in making decisions. These include decisions and agreements of record as set forth in the "Green Book," valid agreements be- tween affected international trade practice and prevailing price in the locality. 4. Consultation with appropriate management groups in the negotiation of jurisdictional agreements between international unions. Arrangements are being made for rotating membership on the Joint Board, so that all unions and participating employers will have the opportunity from year to year to serve in the decision-making process. No union representative or employer will be permitted to sit in judgment on a case in which his union or company is directly involved. The Rules of the National Joint Board, it was emphasized, provide that there shall be no stoppage of work while disputes referred to it are under consideration. The same rules will apply with regard to its Appeals Board. In a joint statement issued after the signing of the new agree- ment, representatives of the participating groups said : "This agreement is the fulfillment of more than a year's negotiations between representatives of labor and management MILLWRIGHTS LOCAL UNION NO. 1102, ETC. 517 in the construction industry with the view to perfecting the machinery established for the orderly and equit^,ble settlement of jurisdictional disputes.... "We firmly believe we have come up with a plan which will work to the best interests of the employees,,the employers and the nation as a whole. "It is our purpose to make use of the new machinery to reduce substantially jurisdictional disputes in private, public and national defense construction covered by this agreement. We are determined to exercise our responsibility to bring about that desirable objective. At the same time, we believe it will serve the public interest for labor and management in this industry to solve jurisdictional problems with a maximum of practical judgment and fairness and with a minimum of government interference." Both the International unions involved in this proceeding are members of the Building and Construction Trades Department, AFL-CIO, and consequently they and their constituent local unions are bound by the procedures of the new Joint Board. At the present time, so far as appears, neither Don Cartage nor the Michigan Cart- age Association is a member of an employer group adhering to the new agreement for the settlement of jurisdictional disputes. We cannot now say, therefore, that the new Joint Board will be able definitely to settle, on the broad basis desired, the jurisdictional dis- pute between the contending Riggers and Carpenters locals. Never- theless, we believe that the new Joint Board should be given the opportunity to resolve this dispute on a voluntary basis. It may be that after study of the new procedures of the Joint Board, the em- ployers will find these more acceptable than the old and will agree to submit their dispute to the new Joint Board. Or, if they refuse to make this submission, they may find that an award of the Joint Board on submission by the two unions is acceptable as a resolution of the jurisdictional dispute. The Board, too, may profit from such an award if it is forced to make its own jurisdictional determination even if the Joint Board award is not dispositive of the jurisdictional dispute under Secton 10(k). One of the relevant factors in deter- mining who is entitled to the work in dispute, the Board has said, is an award by a joint board in the same or related cases.4 An award by a joint board of standing and experience, following procedures of fairness and impartiality, cannot fail to be helpful to the Board in making a jurisdictional determination if it is ultmately required to do so. International Association of Machinists (J. A. Jones Con.ttruction Company), 135 NLRB 1402, 1411. 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The settlement agreement determines the particular jurisdictional dispute which gave rise to the present proceeding. None of the opposing parties challenges this resolution as applied to the Tern- stedt project, where the dispute arose. The point of the objections to the settlement agreement is that the Board should presently decide similar jurisdictional disputes which may arise in the future. In the exercise of our discretion, we decline to do this at the present time. This decision is not irrevocable. If the new Joint Board is unable to resolve the jurisdictional dispute on the broad basis desired, the Board's procedures will then be available for doing so. Although the conduct of the long hearing in this case has caused the expenditure of time and money by the parties to the dispute and the Government, we believe that this exercise of our discretion, in response to the establishment of the new Joint Board, will best effectuate the public policy to encourage voluntary settlements of jurisdictional disputes.5 If we were to make a determination which extended beyond the Ternstedt dispute, we would be undercutting the new Joint Board at the very beginning of its operations and lessening its chances of success. The Board, employers, unions, and the public all have something to be gained by the successful opera- tion of a voluntary system for the settlement of jurisdictional dis- putes. The Board, unions, and employers generally will save many times over the money expended on the hearing in this case if the new Joint Board will satisfactorily resolve, and therefore make unneces- sary the submission of, even a small proportion of the jurisdictional dispute cases that would otherwise come before the Board. For the foregoing reasons, we shall approve the settlement agree- ment recommended by the General Counsel and quash the notice of hearing. The Board approved the settlement agreement and quashed the notice of hearing.] MEMBER JENKINS, dissenting: I would not approve the settlement agreement, as in my view its approval in the circumstances of this case is not only unfair to in- terested parties, but in reality it settles nothing and leaves un- resolved a serious jurisdictional dispute of long standing. At the outset, it must be noted that aside from the Acting Regional Director, the only parties to this agreement are the Carpenters' District Council of Detroit, Wayne and Oakland Counties and Vicinities and Millwrights Local No. 1102. The competing union, Riggers Local No. 575, and the one representing the employees to 5 Twin City Tile and Marble Company (Operative Plasterers and Cement Masons In- ternational Association, et at.), 152 NLRB 1609. MILLWRIGHTS LOCAL UNION NO. 1102, ETC. 519 whom the work in dispute had been assigned, is not a party to this agreement. Neither is John Quinn, a Charging Party, nor is Don Cartage Company, a Charging Party and the employer whom Re- spondents struck to force reassignment of the work to Millwrights. Nor has the agreement been approved by Intervenor Michigan Cart- agemen's Association, a mul-tiemployer association representing Don Cartage, and nine other similarly engaged employers for bargaining purposes in a Board certified unit. Not only are these parties not signatories to the agreement, but as made abundantly clear by the responses of the Charging Parties and the Intervenor to the notice to show cause, Board approval of this agreement is strongly, and in my opinion justifiably opposed. Simply on these facts alone-the ex party nature of the settlement agreement and the vigorous oppo- sition by parties alleged to have been wronged by Respondents' conduct-Board rejection of the agreement would be warranted. But there is more. The particular dispute which gave rise to this proceeding involved. in essence, Respondents' picketing of Don Cartage at the Ternstedt Division of General Motors to force Don Cartage to reassign certain work from its employees represented by the Riggers to members of the Millwrights. The picketing proved successful in the sense that Don Cartage lost its contract with General Motors, and the job was awarded to a contractor who employed Millwrights to do the dis- puted work. This Ternstedt incident, the record establishes, was but one of a long series of conflicting jurisdictional claims between the Riggers and the Millwrights dating back some 20 years. At the hearing herein, all parties, including Respondents, agreed, clearly to settle this long dispute, to broaden the scope of the hearing beyond the work involved in the Ternstedt incident, and they further agreed that any award the Board should render should be in conformity with the expanded scope of the hearing. Thus, the parties agreed that the award should not be limited to Don Cartage's employees or to the Ternstedt dispute, but should apply to all members of the Riggers employed by employer-members of the Intervenor in those areas of Michigan where the Riggers and the Millwrights claim concurrent geographical jurisdiction. It was on this basis that the parties engaged in an extensive hearing lasting (with intervening adjournments) over 3 months, prepared and introduced voluminous exhibits, and compiled a transcript record of nearly 4,000 pages. It was also on this basis that after the hearing the parties filed with the Board lengthy briefs in support of their respective positions. Now today, approximately 1 year after the hearing closed, this Board approves a settlement by which Respondents simply agree that they are not entitled to force Don Cartage to assign to Mill- 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wrights the work in dispute at Ternstedt . Over and apart from the cost to the Government of the conduct of the lengthy hearing in this proceeding, the parties themselves have expended considerable funds, time, and effort to the end that a meaningful award would result. The settlement, which is actually a repudiation by Respondents of their agreement at the hearing which led to this expenditure, re- solves nothing. The Ternstedt job, which is the only one embraced within the settlement, presumably was completed long ago, and under Respondents ' terms, and notwithstanding the fact that the parties themselves recognize that the conflicting claims of the Riggers and Millwrights have been a continuous source of con- troversy, nothing in this agreement even tends to resolve that con- troversy. The brief filed on behalf of Don Cartage and the Inter- venor refers to several recent efforts on the part of the Millwrights to obtain work assigned to members of the Riggers, and some of these efforts have led to charges which are presently pending with this Agency. The record reflects that employer-members of the Intervenor perform 90 percent of the disputed work in the area in- volved, and when Respondents ' record is considered in conjunction with this fact, labor peace in this area is not foreseeable without a positive determination of the running dispute which is what all parties originally sought. In all these circumstances , I would not allow Respondents to repudiate their agreement at the hearing by approving this settlement. There is still a further reason for not approving the agreement. Section 10 (k) of the Act directs the Board to hear and determine disputes cognizable under that section. As the Supreme Court has told us, in such cases "it is the Board's responsibility and duty to decide which of two or more competing employee groups claiming the right to perform certain work tasks is right and then specifi- cally to award such tasks in accordance with its decision." N.L.R.B. v. Radio & Television Broadcast Engineers Union, Local 1..12, Inter- national Brotherhood of Electrical Workers, AFL-CIO (Columbia Broadcasting System), 364 U.S. 573 . I cannot consider the Board's approval of the instant agreement a discharge of that responsibility and duty. The agreement can hardly be termed a "determination" of the long, continuing dispute between the Riggers and the Mill- wrights, for it leaves the parties in no better position than they were before the 10(k) hearing, and ignores the agreed -upon submission to the Board of the entire dispute-not just the Ternstedt job. The dispute in existence then continues to exist and will continue to vex the parties and lead to wasteful work stoppages . Nothing short of a full determination of that dispute will suffice, and this is what,the Congress directed the Board to do. I share my colleagues' hopes ROBERT MEYER HOTEL 521 that the new Joint Board will in the future render decisions which will result in settlement of these disputes acceptably to the parties, and thereby both promote industrial stability and lighten the work of this Board. This hope, however, relates to future submission of jurisdictional disputes and bears little relevance to a case which already has been fully litigated, submitted to this Board by the parties in its entirety (and not merely as to the particular job symp- tomizing the dispute) and is ripe for a decision from us which will terminate the entire dispute. My colleagues' hopes seem plainly to be misplaced in this case. Under the Act, our duty to hear and determine jurisdictional disputes is lifted only where all parties have agreed upon a voluntary method for adjustment of the dispute; e.g., bound or stipulated themselves to the jurisdiction of the Joint Board. 'Neither the Intervenor nor any of its members, including the struck employer, Don Cartage, has submitted itself to the Joint Board. Since no voluntary method for adjustment has been agreed to, this Board is required to make a determination. For the foregoing reasons, I would not approve the settlement agreement nor quash the notice of hearing. Instead, I would do what I believe-the Act commands us to do. The hearing has been held, the record has been made, and I would proceed to determine the merits of the dispute on the basis of that record and make an award in accordance with that determination. Robert Meyer Hotel Company, Inc., d /b/a Robert Meyer Hotel and Hotel and Restaurant Employees and Bartenders Interna- ternational Union, AFL-CIO. Case No. 12-CA-3042. Au- gust 17,1965 DECISION AND ORDER On May 11, 1965, Trial Examiner Sidney Sherman issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Ex- aminer's Decision. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that those allegations be dismissed. Thereafter the Respondent and General Counsel filed exceptions to the Decision with supporting briefs, and the Respond- ent filed an answering brief in opposition to the General Counsel's exceptions. 154 NLRB No. 38.