Millwrights Local Union No. 1102, Carpenters

MILLWRIGHTS LOCAL UNION NO. 1102, CARPENTERS 1061 in the bargaining unit described below with respect to rates of pay, hours of employment and other conditions of employment, and, if an understanding is reached, WE WILL embody such understanding in a signed contract. The bargain- ing unit is. All employees of the employer's scrap processing and warehouse steel op- erations of Chattanooga, Tennessee, including the maid and all truckdrivers, but excluding all office clerical employees, professional employees, inside and outside salesmen, Siskin Memorial Foundation employees, guards, and supervisors as defined in the Act. WE WILL make whole each unfair labor practice striker for any loss of pay he may have suffered by reason of our unfair labor practices. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organi- zations, to join or assist the above-named or any other labor organization, to bar- gain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as authorized in Sec- tion 8 (a)(3) of the Act. SISKIN STEEL AND SUPPLY CO., INC, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 528 Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia 30323, Tele- phone 526-5741. Millwrights Local Union No. 1102, United Brotherhood of Car- penters and Joiners of America, AFL-CIO; Carpenters District 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 District 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. Gases 7-OD-97-1 wid and 3-!,, and 5. Sep- tenaber 13.19GG DECISION AND DETERMINATION OF DISPUTE The Instant proceeding under Section 10(k) of the National Labor Relations Act, as aniended, was initiated by charges filed by Don Car- tage Company, lieretnaiter called Don Cartage, and John Quinn, an individual, alleging that Millwrights Local Union No. 1102, United 160 NLRB No. 89. 1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brotherhood of Carpenters and Joiners of America, AFL-CIO, here- inafter called Millwrights 1102, Carpenters District Council of Detroit, Wayne and Oakland Counties and Vicinities, United Brother- hood 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,, hereinafter referred to as the Building Trades Council or BTC, violated Section 8(b) (4)'(D) of the Act by seeking, through proscribed means to force or require Don Cartage and the Ternstedt Division, General Motors, Detroit, Michigan, to assign particular work to members of Millwrights 1102 rather than to members of Rig- gers and Machinery Erectors, Machinery Movers Local No. 575, International 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. On August 16, 1965, the National Labor Relations Board issued a "Decision and Order Approving Settlement Agreement and Quashing Notice of Hearing"' based upon an agreement which appeared to settle the dispute. Don Cartage and John Quinn thereafter sought court review of the fore- going Decision and Order. On January 18, 1966, the United States Court of Appeals for the District of Columbia remanded the case to the Board at the Board's request in order to take additional evidence as to whether an agreed-upon method for the settlement of the disc pute by all parties existed. Thereafter, a further hearing was held on various dates from January 27 through February 2, 1966, before Hearing Officer Fannie Boyls. On February 18, 1966, the Board issued its Supplemental Decision 2 in which it found that no such agreed-upon method of settlement existed, but adhered to its prior Decision and Order Approving Settlement and Quashing Notice of Hearing. On March 29, 1966, the Court of Appeals for the District of Columbia set aside the Board's decisions in this case and remanded the case to the Board "for consideration and determination of the jurisdictional dispute as submitted to it." 3 1154 NLRB 513. 2157 NLRB 10. $ Millwrights 1102 filed a motion before the Board asking for oral argument and for the Board to take official notice of the so-called Goodfellow decision , an Opinion and Decision in 1965 of the Appeals Board of the National Joint Board for the Settlement of Jurisdictional Disputes in the Building and Construction Industry in the matter of Chevrolet Spring and Bumper Plant, Livonia, Michigan. The Building and Construction Trades Department, AFL-CIO, moved to intervene in these proceedings as amicua curiae and to support Millwrights 1102's motion for oral argument Riggers 575 , Intervenor, and Don Cartage filed briefs in opposition to these motions . The motions for oral argument and the Building and Construction Trades Department, AFL-CIO's, motion to intervene are hereby denied as the record and briefs herein adequately present the issues before the Board and positions of the parties The motion regarding the Goodfellow decision will be discussed below at the appropriate part of our Decision. , .` MILLWRIGHTS LOCAL UNION NO. 1102, CARPENTERS 1063 Pursuant to the court order, we have examined the entire record in this case and make 'the following findings: I. THE EMPLOYER INVOLVED Don Cartage, a Michigan corporation, and a member of the Michi- gan Cartagemen's Association, Heavy Hauler Division,4 is engaged in the business of moving and erecting heavy machinery and equip- ment. Don Cartage annually, performs services valued in excess of $500,000 within the State of Michigan for other companies which are directly engaged in interstate commerce. We find that Don Cartage is an employer engaged in commerce within the meaning of the Act, and that it will effectuate the, policies of the Act to assert jurisdiction in this proceeding. H. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Millwrights 1102, Car- penters Council, the Building Trades Council, and , Riggers Local 575 are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background This dispute, which, in general terms, concerns certain work involved in the erection of heavy machinery and equipment, is a fur- ther outgrowth of a basic jurisdictional conflict that has existed between Millwrights 1102 and Riggers 575 for over 20 years. During this period, many unsuccessful efforts have been undertaken by the interested unions to resolve that conflict, through procedures of the Building and Construction Trades Department of the AFL-CIO and the National Joint Board for Settlement of Jurisdictional Disputes, as well as by means of on-the-job adjustments and agreements between the two unions and their parent internationals. As back- ground for a better understanding of the scope and nature of the dis- pute, some of these efforts will be detailed at greater length. In 1956, the general presidents of the parent internationals of the disputing local unions appointed Dr. John T. Dunlop to investigate the dispute and to formulate a solution. Dr. Dunlop interviewed many interested parties, including some employers of members of Millwrights 1102 and/or Riggers 575 and others who used their serv- ices. Dr. Dunlop's efforts resulted in the so-called Dunlop Award, * Michigan Cartagemen's Association, Heavy Hauler Division , hereinafter called Inter- venor, is a multiemployer bargaining association representing at the time of the bearing Don Cartage and nine other employer-members, engaged in the same business as, Don Cartage. Intervenor was permitted to'intervene on the basis of its collective -bargaining agreement with Riggers 575, upon which Don Cartage relies , and, because all employer- members of Intervenor are parties interested' in, the determination of, the dispute. .11 1064 DECISIONS-OF NATIONAL LABOR RELATIONS BOARD which was issued in 1957 and which allocated to each disputant cer- tain work concerning "the unloading, moving, handling, placing, erecting, assembling, adjusting, aligning, and leveling of all machin- ery and machine parts affecting Millwrights Local 1102 and Riggers Local 575." The award further provided that if the local unions were unable to apply the award at any specific job, each local would for- ward a full report to its respective international president for final settlement. The 'letter transmitting the award to the international presidents of the respective unions, which -has been interpreted by both unions his limitation on the scope of the award, stated : The attached decision shall'only apply to new construction proj- ects, to changeovers where other building and construction crafts are customarily employed, and to changeovers and moving of machinery, where both riggers and millwrights have custom- arily been employed regardless of whether the contractor is a general contractor or a rigging contractor. This has been used as the definition of a "building trades" job. The Dunlop Award was signed by Millwrights 1102 and Riggers 575 and their parent internationals on May 23, 1957, and has never been renounced by the parties thereto. On September 17, 1957, Intervenor, which was not signatory to the Dunlop Award, notified the general president of International Asso- ciation of Bridge, Structural and Ornamental Iron Workers, Riggers 575's parent International, that its employer-members found the award to be unworkable. However, individual employer-members of Intervenor on various occasions have agreed to abide by the award. On October 16, 1957, Don Cartage signed an affidavit of agreement to abide by the award during the course of a dispute similar to the instant one and in which it had also filed Section 8(b) (4) (D) 'Charges.5 This affidavit of agreement did not contain any time period over which it was to operate, and was canceled and terminated by Don Cartage on April 5, 1960, by written notification to the Carpen- ters Council. Throughout the intervening years and up to the present time, the various parties to the dispute have continued to assert claims to the work, as reflected, for example, by the instant proceeding and by the opinion of the Appeals Board of the National Joint Board for the Settlement of Jurisdictional Disputes in the aforementioned Good- fellow decision.° 5Don Cartage Co., Inc (Millwrights Local 1102, Carpenters ), 121 NLRB 101. In that case the Board quashed its notice of hearing because Don Cartage specifically agreed to be bound by the Dunlop Award e The Goodfellow decision was introduced at the reopened hearing for the purpose of proving that Intervenor was also bound to the Joint Board. Thereafter , as referred to above, Millwrights 1102 filed a motion that the Board take official notice of that decision. We hereby grant such motion and take official notice of its contents . See 5 U.S C. 1007(d). MILLWRIGHTS LOCAL UNION NO. 1102, CARPENTERS 1065 B. The work in dispute The notice of hearing in this proceeding defines the dispute as involving the specific work of "aligning, leveling, and anchoring machinery and equipment" 7 which had been, in general terms, dis- mantled, moved, and erected. However, the parties agreed at the hear- ing that any award made should go beyond the issues as defined in the notice of hearing and further agreed to extend the scope of the hearing so as to broaden the work assignment determination to include the following work: The removal of crating, blocking and bracing above the machine skid, the opening of boxes of parts and the removal of protective covering, the laying out, drilling and installing of anchor bolts and nuts, the cleaning and dressing of machine surfaces and com- ponent parts, bolting, aligning and unpackaging machines, the handling of component parts of machines by hand and the bolt- ing under those circumstances, the use of chainfalls and the assembly of nonpackage machines except heavy machine tools similar to heavy presses, installations relating to horizontal and vertical surfaces, the final tightening, adjusting, leveling opera- tion, packaging of machines, the removal of all anchor bolts and nuts, and the dismantling of machinery. The parties likewise indicated their desire to broaden the defined locality of the dispute from that of Detroit, Michigan, to that of the geographical area in which Riggers Local 575 and Millwrights 1102 have territorial jurisdiction. The actual work dispute is, however, narrowed by the Millwrights' specific jurisdictional claim. That claim is confined to the particular job tasks awarded the Millwrights under the Dunlop Award which, as noted above, applies only to "building trades" jobs as there defined. The work performed by Don Cartage and other members of the Intervenor for such projects constitutes a very narrow segment of the total machinery moving and installation business in which they are engaged. In the case of Don Cartage, for example, it is undisputed that only 5 percent of the work it does in the 34-county area covered by Riggers 575's territorial jurisdiction involves "building trades" jobs. The remaining 95 percent of its work, although involving the moving and setting of machinery, is concerned principally with so- called "inplant maintenance" work, where the electrical, pipe, and other connections are made by in-plant employees and construction industry work is not deemed involved. The Millwrights make no claim that such latter work should be assigned to it rather than the 7 The machinery varies in size from small drill presses weighing a ton or less to larger' presses which may weigh up to 300 tons. 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Riggers. The Millwrights lay claim only to the 5 percent "building trades" project work, or more precisely to that part of such work as was awarded to Millwrights by the Dunlop Award, and this alone is within the scope of the dispute now before us for determination." C. The facts On February 18, 1964, the Ternstedt Divison of General Motors Corporation, hereinafter called Ternstedt, awarded Don Cartage, a specialty rigging contractor, a $400,000 contract to "load, transport, unload, position according to print, level, anchor, and install" machin- ery and equipment by moving same from Ternstedt's main plant to a newly acquired facility located about 3 miles away. This work was part of Ternstedt's renovation of a newly acquired facility and involved the use of other construction crafts. Because Ternstedt intended to use this new facility in automotive production, Ternstedt officials emphasized to Don Cartage that time was of the essence, and a consequent tight schedule for the move was established. Don Cartage started the changeover work on Febru- ary 10, and in accordance with its usual policy assigned all of the work to its own employees, all of whom were members of Riggers 575. On February 10 or 11, Wood, secretary of Building Trades Council, requested Don Cartage's general manager, Richards, to employ members of the Millwrights to perform the work tasks allot- ted Millwrights in the Dunlop Award. Richards did not comply with this request. Some time after February 10, Robert Laing, representing Mill- wrights' parent international, and Robert Poole, representing Rig- gers 575's parent international, were dispatched to the jobsite by their respective internationals to inspect and ascertain whether the work involved came within the scope of the Dunlop Award, and to attempt to settle the dispute in accordance with the agreement between the international unions as set out in the Dunlop Award. Although the record is not clear as to when they inspected the job, the record show that these representatives determined that the Ternstedt job was a "building trades" job to which the Dunlop Award applied, but that up to the time of their inspection, "there had been no millwright work performed on the jab." On February 17, a special meeting of Building Trades Council's executive board was held at the request of Weir, secretary of the Carpenters Council. Although the specific disputants were requested 8 In addition to the specialty contractors , who belong to Intervenor and employ riggers to perform the disputed work , general contractors both from the Detroit area and else- where in the Nation are awarded contracts to perform the disputed work, and they utilize millwrights in this work. MILLWRIGHTS LOCAL UNION NO. 1102, CARPENTERS 1067 to attend the meeting, the representative from Riggers 575 did not appear. Weir, however, appeared before the executive board on behalf of Millwrights 1102, informed the board that Don Cartage had refused to employ millwrights in accordance with the Dunlop Award, and requested permission to picket the Ternstedt job. This request was granted by the executive board of the BTC, and the following day the executive board's action was approved by the membership of the BTC. Weir, accordingly , ordered the picketing by the Car- penters, which took place on March 3 , 1964. Meanwhile, on Febru- ary 28, a Millwright 1102 steward employed by a contractor installing conveyors on the Ternstedt job approached Blue, Don Cartage's vice president, and complained that members of Riggers 575 were doing work assigned by the Dunlop Award to millwrights. When Blue told him that Don Cartage did not intend to employ millwrights, the steward replied that Don Cartage "would probably have to put mill- wrights on before the job went very far." Horn , Millwrights 1102's business agent, testified that on March 1 or 2 he telephoned either Blue or Richards in an attempt to have Don Cartage abide by the Dunlop Award and employ millwrights on the job. At 7:30 on the morning of March 3, 1964 , about 60 pickets appeared at the two entrances to the Ternstedt jobsite, some of whom carried signs stating : "Don Cartage unfair to Millwrights Local 1102" and "Don Cartage violates Dunlop Agreement , discriminates against Millwrights, Carpenters District Council ." Members of Mill- wrights 1102 and Carpenters Council participated in the picketing. Richard Kirby, a business agent for Building Trades Council, went out to the jobsite to explain to any interested person that the picket- ing was authorized by the Building Trades Council. According to both Wood and Kirby, the object of the picketing by the Carpenters was to compel Don Cartage to employ members of Millwrights 1102 in accordance with the provisions of the Dunlop Award. Although Don Cartage's employees continued to work during the picketing, which lasted only one day, other trades on the job ceased working, left the job, and refused to cross the picket line. Ternstedt officials, fearing that the interruption of the work would impair their production schedule , immediately contacted Blue and told him, in effect, to straighten out the matter that day or lose the job. In an effort to save Don Cartage's contract, Blue and Richards agreed to employ some millwrights on the job and so informed Horn. Horn indicated that no millwrights would be furnished until Don Cartage signed a contract with Millwrights 1102. At the hearing, Horn stated that he wanted a contract to ensure that members of Millwrights 1102 were paid by Don Cartage "those fringe benefits [in addition to] 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the hourly wage, they get on their checks." Don Cartage refused to execute a contract. The same day Ternstedt terminated Don Cartage's contract and awarded the work to a general contractor, Darin and Armstrong, who employs members of both Millwrights 1102 and Rig- gers 575 and regularly follows the Dunlop Award in assigning the work in dispute. IV. CONTENTIONS OF THE PARTIES 1. Millwrights 1102 and Carpenters Council: These Respondents contend that the Dunlop Award covers and is applicable to the dis- puted work; that all parties involved in the dispute except General Motors Corporation participated in the formulation of, and are, accordingly, bound by, the award; and that the award, therefore, con- stitutes a final determination and adjustment of the dispute within the meaning of Section 10(k) of the Act. They accordingly contend that the notice of hearing should be quashed. In the alternative, these Respondents urge the Board to assign those tasks to Millwrights 1102 which were assigned to it by the Dunlop Award, but only on "building trades" projects. They further urge that the award by the Board should cover not only Detroit where the dispute arose, but also the geographical area within the State of Michigan which is coextensive with the geographical juris- diction of both Millwrights 1102 and Riggers 575.9 These Respondents finally urge that any award made by the Board embrace both I)on Cartage and all the other members of Intervenor who customarily engage in the disputed work. 2. Detroit Building Trades Council: This Respondent contends that the instant charges against it should be dismissed because, while it sanctioned and approved the Carpenters Council's and Millwrights 1102's picketing activity in accordance with its policy to enforce international and local union agreements, it did not itself through any of its agents engage in such activity. It also contends that the Dunlop Award is an international and local union agreement binding upon the signatory Millwrights 1102 and Riggers 575, both of which are affiliates of this Respondent, and urges the Board to determine that the Dunlop Award is binding on all parties. 3. Riggers 575: Riggers 575 urges that all the work in dispute should be awarded to it. It contends that the Dunlop Award has not settled but has, in fact, aggravated the longstanding dispute existing between it and Millwrights 1102 because, so it asserts, the award is 9 Millwrights 1102 and Riggers 575 stipulated that the following 19 counties within the State of Michigan constitute the geographical jurisdictional area in which both of these Unions claim jurisdiction : Isabella , Clinton, Ogemaw, losco, Ingham, Livingston, Gratiot, Midland, Oakland, Wayne, Macomb, St. Clair, Lapeer, Saginaw, Genessee, Tuscola , Huron, Bay, and Sanilac. MILLWRIGHTS LOCAL UNION NO. 1102, CARPENTERS 1069 static, is inconclusive in that it did not properly consider all of the factors involved in the disputed work, and is unworkable in applica- tion. Riggers 575 also urges that the Board's determination encom- pass all employer-members of Intervenor in all of the 34 counties within the State of Michigan in which Riggers 575 performs the dis- puted work.1e 4. Don Cartage and Intervenor: Basically, these parties contend that neither Don Cartage nor any other employer-member of Inter- venor is bound by the Dunlop Award or any other award, decision, or method for the voluntary adjustment of the disputed work. They contend that the Dunlop Award is, generally speaking, unworkable and urge the Board to affirm Don Cartage's work assignment to Rig- gers 575. They further urge the Board to assign all work done or to be done by all employer-members of Intervenor as described in the broadened description of the work in dispute to their employees, members of Riggers 575. V. APPLICABILITY OF THE STATUTE Before the Board may proceed to a determination of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b) (4) (D) has been violated. As indicated above, the record contains ample evidence that Respondents Millwrights 1102 and Carpenters Council picketed and caused a work stoppage at the Ternstedt job with an avowed object of forcing or requiring Don Cartage or Ternstedt to assign certain disputed work to employees who are represented by Millwrights 1102, rather than to employees of Don Cartage who are represented by Riggers 575. Respondent Detroit Trades Council approved and sanctioned Mill- wrights 1102's and Carpenters Council's request to picket and through one of its business agents involved itself in the picketing. It, thereby became accountable for the picketing. We find no merit in the Carpenters Council, Millwrights 1102, and the Building Trades Council contention, in effect, that the Board is precluded from making a determination of the dispute because the Dunlop Award constitutes an adjustment of the dispute within the meaning of Section 10(k). Don Cartage was not a party to the Dun- lop Award when made. Although the record shows that Don Cartage in 1957 agreed to abide by the Dunlop Award for an indeterminate period, Don Cartage thereafter effectively repudiated its agreement 10 In addition to the counties set forth in footnote 9, Riggers 575 claims geographical jurisdiction in additional counties located within the State of Michigan and the current collective-bargaining agreement between Riggers 575 and the employer -members of Inter- venor lists 34 counties in which employer -members of Intervenor employ members of Riggers 575. 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in 1960, and has not since agreed to be bound by, or adhere to, the award. Nor may such an agreement or adjustment be spelled out from Don Cartage's expressed willingness to hire millwrights in order to save its contract with Ternstedt, or from Ternstedt's reassignment of the job to an employer who abides by the Dunlop Award. The record also shows that Intervenor is neither signatory to nor has it agreed to be bound by the award. We further find that there is at present no agreed-upon method for the voluntary adjustment of the instant dispute to which all parties hereto are bound. On the basis of the entire record, we find that there is reasonable cause to believe that a violation of Section 8(b) (4) (D) has occurred, and in accordance with the mandate of the court of appeals find that the dispute is properly before the Board for determination under Section 10(k) of the Act. VI. MERITS OF THE DISPUTE 1. Certification and bargaining agreements : Millwrights 1102 has no collective-bargaining agreements with Don Cartage, Intervenor, or any other employer-member of Intervenor, nor has it been certified as the bargaining representative of employees of any such employer. However, Millwrights 1102 does have contracts with the general con- tractors, both in the area and nationally, who also perform the work in dispute. Riggers 575 was certified as the bargaining representative of all riggers and their apprentices employed by employer-members of Intervenor in 1957,11 and currently has identical but individually executed collective-bargaining agreements with Intervenor and its members. Riggers 575 contends that its certification is controlling and that its contract with Don Cartage covers the disputed work. However, the certification of the Board specifically excludes employ- ees classified as millwrights, and the Board's decision also states : "The Petitioner and Riggers Local 575 agreed to exclude all iiiill- wrights engaged in laying outlines, aligning, and leveling, as requested by Carpenters. We emphasize that we are in no way attempting to make a jurisdictional award in the sense of job content or work assignments." 12 2. Skill and training of the competing groups: Both Millwrights 1102 and Riggers 575 have apprenticeship programs approved by the Bureau of Apprenticeship Training, U.S. Department of Labor, for the training of apprentices in the performance of the work in dispute, and each union concedes that the members of the other are capable of performing the work in dispute. n Machinery Movers and Erectors Division, Michigan Cartagemen's Association, 117 NLRB 1778, 1782. 12 1d. at 1781 , footnote 13. MILLWRIGHTS LOCAL UNION,,NO,.1102 , CARPENTERS 1071 3. E fciency, economy, and safety : It is clear from the record that work of the type in dispute on "building trades job," as on others, may feasibly be assigned either to riggers or millwrights . Both Mill- wrights 1102 and Riggers 575 witnesses agreed that while either craft is competent to perform the work, when both are used on the same job to perform interdependent ,work tasks, some standby time tends to occur. Apparently this is especially true where both trades are utilized for a single operation, such as an, assembly operation involving a single machine. . It would appear , .therefore, that to the extent ,the; assignment of all work tasks to a single craft allows for the elimination of such - standby time, it provides for greater efficiency and economy in work operations. The claim is also made that the use of one craft is safer . Various witnesses asserted that if millwrights are added to a job, it creates increased hazards because of the additional people standing about and the more frequent shifting of crews. No specific evidence was adduced, however, to show that the incidence of accidents has ever actually been established to be greater where both crafts are employed on a job rather than one alone. - 4. Industry and area practice : It is undisputed that throughout the United States, outside the southeastern Michigan area which contains the locale of this dispute, contractors use millwrights rather than rig- gers to do the disputed work: This includes .Philadelphia, New York, and Chicago, the only other localities where separate rigger locals of the Ironworkers exist. When employer members of the Intervenor Cartagemen's Association perform jobs outside the area herein involved, they customarily assign work of the kind here in dispute to millwrights. As indicated above, the parties disagree as to the prevalent area practice in the Detroit region . According to testimony adduced by the Intervenor, its members perform 90 percent of the contracted-out machinery moving and erection work; other specialty contractors, not members of the Association , perform 5 percent ; and'the remaining 5 percent is done by general contractors who employ both riggers and millwrights.13 Quite clearly, however, the foregoing testimony does not reflect a true measure of the area practice relating to the specific 1a As for non-contracted-out work, this is done principally by the in-plant employees such as the maintenance crews in automobile plants. The record does not disclose what proportion of the total machinery moving and erection work is done by these in-plant employees. The assertion of our dissenting colleague in the earlier decision in this case , 154 NLRB 513, that "The record reflects that employer -members of the Intervenor perform 90 percent of the disputed work in the area involved" [emphasis supplied ], is obviously in error and was no doubt based upon the testimony just referred to that its members perform 90 percent of the contracted-out machinery *moving and erection. Most of that contracted-out work, as previously noted, is so-called in-plant maintenance work, not involving other build- ing trades crafts, to which the Millwrights make no claim. 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work here in•dispute. The contracted-out work of Intervenor's mem- bers and independent specialty rigging contractors is not confined to work on "building trades jobs," with which this dispute is alone con- cerned, but includes as' well all work that these companies do, includ- ing cartage of machinery and in-plant installation work to which the Millwrights lay no claim. As earlier mentioned, however, only a very minor fraction-in the case of Don Cartage, 5 percent or less-of the machinery movement and erection work performed by Intervenor's members-and other specialty rigging contractors is related to "build- ing trades" jobs. And even as to the 5 percent, it does not clearly appear to just what extent such work, either by reason of customer request or otherwise, has been done in compliance with the work assignment provisions of the Dunlop Award. The record reflects that general contractors, both•Michigan-based and from out-of-State, per- form a substantial amount of machinery erection work in "building trades" jobs, using both riggers and millwrights in, such work. How- ever, aside from one witness' testimony of questionable reliability, there, is no evidence disclosing the proportions in which machinery installations on "building trades" jobs are performed with the use of millwrights or by riggers alone. On this record, it is impossible for us to make a reliable estimate on that-score, or to-form a conclusive judg- ment as to whether area practice with respect to the specific work in dispute preponderates, on the side of the Millwrights or of the Riggers. 5. Union .procedures and decisions : Millwrights 1102 and Carpen- ters Council offered in evidence many interunion awards over a great many years involving disputes occurring in various parts of the United States which assigned the work here in dispute to millwrights rather than riggers. We have heretofore referred to the Dunlop Award of 1957, which was subscribed to, by both .Locals herein involved and their respective 'internationals' but not by the Intervenor or its members. As, noted .above, that, arbitration award was the culmination of various attempts by both international unions, to resolve the dispute. In certain limited situations on "building trades" jobs, for example where customers have insisted on this, Intervenor's members have followed the pro- visions of the award, employing both riggers and millwrights to per- form their respectively allotted' work, tasks, but generally they have refused to follow the jurisdictional allocations of'that award. Riggers 575, as distinguished from its parent international, has also refused to follow that award although it appears as a signatory to the award and has never formally repudiated it. The award, although not bind- ing upon all parties to this proceeding, forms one of the principal bases for Millwrights' claim to work here in dispute. It is thus a fac- MILLWRIGHTS LOCAL UNION NO. 1102, CARPENTERS 1073 tor appropriately to be considered, not only for historical reasons, but because it reflects an existing agreement of the disputant locals and their parent bodies with respect to the division of their overlapping jurisdictional claims. The Dunlop Award states : 3. In accordance with the Arbitration stipulation of the local unions, this decision concerns : "The unloading, moving, han-, dling, placing, erecting, assembling, adjusting, aligning, and lev- eling of all machinery and machine parts affecting Millwrights Local 1102 and Riggers Local 575. Power Equipment 6. For the purpose of this decision, power equipment shall be defined to include such equipment as cranes, mechanical powered booms, overhead cranes, tractors, winch trucks, work lift trucks, and A frame trucks. Unloading and Handling with Power Equipment 7. The unloading and handling from railroad cars or from the point of receiving or storage to the approximate position for the installation or assembly of machines is the work of Riggers. The Riggers shall remove blocking and bracing on railroad cars or in storage necessary for the unloading and handling of the machines. The approximate position shall be designated by the contractor. Uncrating 8. The removal of crating, blocking and bracing above the machine skid, the opening of boxes of parts, and the removal of protective covering is the work of Millwrights. Anchor Bolts 9. The laying out, drilling and installation of anchor bolts and nuts, and the cleaning and dressing of machined surfaces and component parts is the work of Millwrights. Package Machines 10. The setting of package machines shall be performed as follows : (a) The removal of the machine skids and the placing of the package machine over prepared anchor bolts with power equip- ment is the work of Riggers. If power equipment is used to place the package machine to the center line in order to mark the anchor bolts and to make subsequent moves of the package machine with power equipment, these operations are the work of Riggers. 257-551--67-vol. 160-69 1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) The bolting, aligning and leveling of package machines is the work of Millwrights . The dressing and installation of small parts of package machines is the work of Millwrights. Assembly of Non-Package Machines It. There shall be no limitations on the use of tools or equip- ment. The contractor shall have final authority to designate the method and the equipment or tools to be used. 12. The assembly of non-package machines shall be performed as follows : (a) The handling of component parts of machines where power equipment is used is the work of Riggers . The bolting shall be performed in accordance with paragraph 13 below. (b) The handling of component parts of machines by hand is the work of Millwrights. The bolting shall be performed by Millwrights. (c) The use of chainfalls in the assembly of non-package machines has become less and less frequent in recent years. In order to conform more to national practice, the use of chainfalls in the assembly of non -package machines is the work of Mill- wrights, except that in the assembly of heavy presses and similar heavy machine tools, the use of chainfalls is the work of Riggers. 13. The bolting of component parts of machines assembled with power equipment shall be determined on the principles of safety, ideally with the two trades working together . In view of past difficulties, bolting shall be performed as follows in the assembly of machines involving the use of power equipment: ( a) On a horizontal surf ace the Riggers shall install two bolts. The Millwrights shall install the remainder. (b) On a vertical or inclined surface the Riggers shall install one half the bolts, but not less than two bolts. The Millwrights shall install the remainder. (c) On a part suspended from a surface , the Riggers shall install all bolts. (d) Bolts or tie-rods installed by power equipment , as on large presses, shall be installed by Riggers. (e) The final tightening, adjusting, leveling and aligning shall be performed by Millwrights. Aligning and Leveling 14. The aligning and leveling of machines, including the use of jacks and chainfalls, in the aligning and leveling operation, shall be the work of Millwrights . If power equipment is used in align- ing and leveling, the Riggers shall hook on the power equipment. MILLWRIGHTS LOCAL UNION NO. 1102, CARPENTERS 1075 We have also het etofore referred to the Goodfellow decision by the recently constituted Appeals Board of the National Joint Board for the Settlement of Jurisdictional Disputes 14 which involved many of the same parties and generally the same type of work as in the instant dispute. Goodfellow involved the aligning, leveling, and assembly of two new microtinish polishing lines by a specialty contractor (a member of Intervenor) and the installation of three similar old lines by a gen- eral contractor (Darin and Armstrong) at another General Motors plant. The work assignments of the two contractors were different. The specialty contractor awarded all work to riggers; the general contractor assigned the movement and assembly with power equip- ment to riggers and the aligning and leveling to millwrights. The appeals Board of the National Joint Board for the Settlement of Jurisdictional Disputes analyzed and considered the issues in dispute in light of the following criteria which it regarded as material to its determination: (1) amount of work in dispute; (2) past work assign- ments of the employers; (3) practice in area; (4) practice in other areas; (5) previous agreements between unions as to settlement of dispute; (6) basic work jurisdiction of each union; and (7) jurisdic- tional claims by unions in their agreements, constitutions, and the like. On the basis of its evaluation of these considerations, the Appeals Board concluded : The conclusion of the Appeals Board is that assembly without use of power equipment and the aligning and leveling in connec- tion with the installation of the two new polishing lines should be assigned to millwrights . . . The millwrights have no proper claim to the use of the power equipment used in the assembly of component parts in the present case. 14 This decision was introduced in evidence at the reopened hearing on January 27, 1966, for the purpose of proving that all the parties to the instant dispute were bound to the Joint Board As we indicated in our Supplemental Decision, that was not so We refer to the Goodfellow decision to indicate another interunion attempt to settle the basic dispute which 1s also before us. While interumon agreements to which employers may not be bound are not controlling herein, they may be appropriately considered Local Union No 68, Wood. Were and Metal Lathers International Union ( Acoustics d Specialties, Inc ), 142 NLRB 1073 , Local 85, United Association of Journeymen and Apprentices, etc (Dobson Heavy Haul, Inc.), 156 NLRB 1386 . See also James B Cagey v. Westinghouse Electric Corporation, 375 U.S 261 , 264, wherein the Supreme Court stated, "The Board , as admon- ished by Section 10(k), has often given effect to private agreements to settle disputes of this character , and that is in accord with the purpose as stated even by the minority spokes- man in Congress . .11 In this same connection we recall the language from the Supreme Court's decision in the CBS case, N.L R B v Radio d Television Broadcast Engineers Union, Local 1212, Electrical Workers, 364 U.S 573, 583: "With this experience and a knowledge of the stand- ards generally used by arbitrators , unions, employers , joint boards and others in wrestling with this problem , we are confident that the Board need not disclaim the power given it for lack of standards." [ Emphasis supplied I As noted in our earlier decision in 154 NLRB 513, both of the parent international unions here involved and their constituent locals are hound by the procedures of the new Joint Board, which resulted in the Goodfellow decision. 1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As we construe the Goodfellow decision, it modifies the earlier Dunlop Award by modifying paragraph 13(a) and (b) of that award to assign the work tasks therein provided to riggers rather than millwrights. VII. CONCLUSIONS AS TO THE MERITS OF THE DISPUTE In International Association of Machinists, Lodge No. 1743 (J. A. Jones Construction Company), 135 NLRB 1402, the Board set forth the following criteria to be considered in the making of an affirmative award under the CBS decision: 11 The Board will consider all relevant factors in determining who is entitled to the work in dispute, e.g., the skills and work involved, certifications by the Board, company and industry practice, agreements between unions and between employers and .unions, awards of arbitrators, joint boards and the AFL-CIO in the same or related cases, the assignments made by the employer and the efficient operation of the employer's business. Among the factors referred to above are some which are of little or no aid in resolving the dispute before us. Thus it does not appear that members of either of the two crafts possess greater skills. There is no controlling certification by the Board that affects the issue here. Industry practice elsewhere in the United States clearly supports the claim of Millwrights 1102, but in the geographical area of this con- troversy it is mixed.16 The incorporation in the contract with Inter- venor of the Riggers 575's broad and self-serving jurisdictional claims, like the overlapping claims of the same character to be found in Millwrights' contracts with general contractors, commands no sub- stantive weight in the resolution of a dispute of the kind before us. It bears at most on the factor of employer assignments, a factor we assess below. We are thus left with the remaining factors. As to these, Mill- wrights 1102 relies basically on the 1957 Dunlop Award and the inter- union agreement based thereon, whereas Intervenor and Riggers 575 place their main reliance upon the practice of work assignments by Intervenor's members and the greater efficiency and economy flowing from the use of riggers alone. Although not binding on the Intervenor, the Dunlop Award is nevertheless of important significance in evaluating the relative merits of the competing unions' claims to the disputed work. In keeping with 15 N.L.R.B. v. v. Radio & Television Broadcast Engineers , 364 U.S. 573. 18 We refer here specifically to industry practice on "building trades " jobs, which are the only ones here in dispute. We cannot agree with our dissenting colleague that greater weight should be accorded to the practice with reference to "in-plant" work, where there is no jurisdictional dispute, and where the particular problems of the juxtaposition of com- peting crafts and the application of interunion agreements do not exist. MILLWRIGHTS LOCAL UNION NO. 1102 , CARPENTERS 1077 the policy of the Act to reduce jurisdictional strife, the Board has always looked with favor upon the voluntary efforts by unions to adjust their jurisdictional differences.17 The Dunlop Award is the out- growth of an arbitral process jointly initiated in just such an effort by the respective internationals of the disputing locals here involved. Beyond that, and of even more impressive significance, it attained, we find, the force of an interunion agreement when it was signed by responsible representatives of both locals, as well as by representatives of their parent internationals. The Dunlop Award, which specifically covers the disputed work, appears on its face to be rationally based. It fixes jurisdictional bound- aries along lines which take into consideration the work tasks which historically have been considered central to each craft : The riggers are awarded those work tasks more directly related to the transport of the machinery and its placement, where power equipment is required, in its appropriate final position; the millwrights, those more directly related to installation of machinery, without the use of power equip- ment, and the adjustment of the machinery after it has been moved to its appropriate final position. The work apportionment made in the award conforms generally to accepted work assignment practices on building trade projects elsewhere in the United States, including the three aforementioned areas where separate Riggers locals of the Iron- workers exist. The award apparently has the approval and support of the Building Trades Council with which both locals herein involved are affiliated. It has been acquiesced in and complied with by national and local general contractors in the construction industry. Moreover, the continuing viability of the award in basic respects is reflected by the recent Goodfellow decision made by the Appeals Board of the newly-constituted National Joint Board.18 The foregoing, in our view, provide most compelling considerations supporting the jurisdictional claim of Millwrights 1102 against that of Riggers 575. The question that remains is whether the factors relied upon by Intervenor and Riggers 575 are sufficient to overcome the force of the considerations favoring the Millwrights' claim . We consider first the contention based upon the prior assignment practices of Intervenor's 17 Acoustics & Specialties, supra; Dobson Heavy Haul, Inc., supra; United Brotherhood of Carpenters ( The Walter Corporation), 151 NLRB 741. 18 We note that this new appeals procedure was the result of efforts by the AFL-CIO, Associated General Contractors , and the participating Specialty Contractors Employers' Associations to end jurisdictional disputes by setting up an additional safeguard to protect the rights of all involved in a jurisdictional dispute. This matter was of such concern in the maintenance of industrial peace and stability that President Johnson acted as the witness to this new agreement. We have earlier recalled that parent Ironworkers and Carpenters Internationals and their constituent locals are bound to these new procedures . Footnote 14, supra. 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members. It is clear, of course, that an employer's assignment of dis- puted work cannot be made the touchstone in determining a jurisdic- tional dispute. As the Board has noted in other cases, to do so would be a reversion to Board practice explicitly rejected by the Supreme Court in the CBS decision. What the employer has done in the past, and what he wishes to continue to do, is, however, a factor that must be considered. We evaluate that factor, as well as the others in this case, in the context of the particular dispute before us, bearing in mind the nature of the organized industry in which the dispute has arisen, and the traditions, customs, and practices of that industry. As found above, the dispute here relates to only that small segment- 5 percent or less-of the machinery moving and installation opera- tions of Intervenor's members that involve "building trades" projects, which, we are satisfied may properly be considered work of the con- struction industry type. In the segment of that industry which is organized along "building trades" lines, and which alone is involved in this dispute, it has traditionally been the practice to divide work among members of the various "building trades" craft groupings in conformity with established jurisdictional lines, and contractors who do work in that industry are expected to, and normally do, observe such jurisdictional lines in making their work assignments. In a situation such as this, we do not believe that the same weight may appropriately be given the Intervenor's prior work assignment practices as would be the case if, say, the jurisdictional 'conflict here had arisen in the course of Don Cartage's "inplant maintenance" operations. Quite clearly, in a "building trades" situation it makes for an unstable and explosive situation to allow two contractors, one a specialty rigging contractor and the other a general contractor, to assign identical work tasks having the same function to members of different crafts. Particularly is this true where, as here, there has been a long history of jurisdictional conflict arising from such opposite work assignments. In these circumstances, we think it can make no contribution to the final solution of the dispute for us to give control- ling weight to Intervenor's past work assignment practice, to the ex- tent that'such practice is at variance with work jurisdictional alloca- tions that have been fixed by interunion agreement and now apply to others engaged in the same work.19 16 The analysis above demonstrates that our dissenting colleague is in erior in asserting we have disregarded the Employer 's assignment, although concededly we have not fol- lowed it. Our colleague's further contention that the specialty contractors ' "freedom" to bid on and perform work with riggers is at stake does not suggest a different result. In any case where the Board is required to make an award between competing crafts with different employers, the inevitable consequence of the award is to condition both employers' chances of securing such work without coercive interference upon their willingness in their work assignments to follow the Board 's award If either of the employers restricts his hiring to the craft which does not prevail, he restricts his own "freedom" to bid on and perform MILLWRIGHTS LOCAL UNION NO. 1102 , CARPENTERS 1079 We turn,,then, to the contention that it is less efficient and less eco- Iiomical'for Intervenor's members to perform the disputed work with the use of millwrights. That contention is largely based on the record showing that standby time tends to occur where split assignments are required. The record indicates that most of the standby time occurs during assembly operations.',' The determination we make below, however, modifies the Dunlop Award, in line with the construction we give the Goodfellow decision, so as to assign to riggers all assembly operations where power equipment is used, save for the final tighten- ing, adjusting, leveling, and aligning which remains with the mill- wrights.71 This will eliminate the split assignments which were pro- vided for in items 13(a) and (b) of the Dunlop Award. We note, moreover, that the Goodfellow decision in effect admonishes the Mill- wrights not to be so technical in their work claims as to require the use of millwrights where the work is "so small, or so incidental, or of such short duration" as to warrant the use of riggers alone. We expect that, admonition to be heeded, and we will take it into account in any future case that may come before us.22 The elimination of split assign- ments and the other considerations just mentioned will also, we believe, largely reduce the amount of standby time, thus limiting the force of the efficiency and economy contention. In any event, in the context of the specific dispute here, we do not consider the factor of efficiency and economy as sufficient to overcome the other considerations present in this case, as set out above. We advert, more specifically, to the policy reasons for supporting, where not repugnant to the Act, interunion agreements and arbitration decisions that mark out jurisdictional borders'23 as well as to the prac- tical desirability of maintaining in "building trades" situations uni- formity in work assignments where identical work and functions are the work without interference . As general contractors on "building trades" jobs in this and other areas have found it possible to do some of the machinery erection work with riggers in accordance with the Dunlop Award, and as the Intervenor 's specialty contractor members having found it possible to employ millwrights for some of the work outside the Detroit-1B county area , we do not believe Don Cartage 's and its fellow members' ingenuity and capacity to adjust to a similar work division within the area encompassed by this award will be found wanting or be unduly restricted. CBS is any case teaches that the Board's prior practice of following employer assignments in every case could not be sustained. 20Intervenor' s witnesses agreed that over 95 percent of the job of assembling , leveling, and aligning was in the work of disassembly and of assembly and only about 3 percent in leveling and aligning. 21This modification makes sense , and we make it part of our determination even if we are wrong in our construction of the Goodfellow decision. a' The Goodfellow decision does not attempt to define precisely the type of jobs or circum- stances in which a Rigger crew might well be used exclusively , nor do we. The Dunlop Award contains procedures for amicable settlement of such fringe issues, and Joint Board procedures , to which the union parties are bound, are available for prompt settlement without economic action should the parties disagree. x' See Local Union 68, Wood, Ware and Metal Lathers International Union, AFL-CIO (Acoustics & Specialties, Inc.), 142 NLRB 1073. 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD involved. We also take into account that some loss of flexibility in the making of work assignments may occur in a craft union structure. But we do not believe we are warranted simply for that reason, or because of any consequential loss in efficiency and economy, to disturb the work jurisdictional divisions which, as in this case, have been worked out through the cooperative effort of the internationals involved and have been accepted by general contractors who regu- larly do business with the building trades unions. Compliance with the work assignment apportionment we uphold will deprive Inter- venor's members of the advantage they now enjoy over general con- tractors in the Detroit area in the making of work assignments. But this in our judgment is required for a fair and effective resolution of this dispute. Intervenor's members, we note, have been able to accom- modate themselves to the substantially similar apportionment that exists elsewhere in the United States where they also bid for and per- form work. As the Board has heretofore had occasion to observe, "individual interests in a particular case may have to be subordinated to a practical and effective solution of the overall problem"' if the Board is to fulfill the arbitrator-like functions assigned to it under Section 10 (k) '24 and this, we find, is the case here. We conclude from our appraisal of all relevant factors that, on balance, it is appropriate to give effect to the work jurisdictional apportionment made in the Dunlop Award, subject to the modifica- tions that have been noted herein.25 The dissenting opinion of Member Jenkins prompts us to add the following observations directed to certain assertions therein made: 1. Contrary to the charge in the dissent, our decision neither "ignores" nor "disregards" any relevant factors pertaining to the resolution of this dispute..As is evident from a fair reading of our decision, we have considered and evaluated all relevant criteria we normally use in the resolution of jurisdictional disputes. Unlike our dissenting colleague, however, we have assessed their relative values in the context of the particular dispute before us. 2. As is also evident from a fair reading of our decision, the Good- fellow arbitration decision is but one of the, considerations we have 24 Acoustics and Specialties, Inc, supra, 1079. 25 The parties requested that the scope of our determination be broadened from that set forth in the notice of hearing herein to the description of work in dispute contained In the Dunlop Award . We have acceded to that request . The parties also requested that our work assignment determination extend beyond the particular localized area of the dispute. In the usual case we are reluctant to do so; however , in this case any award which en- compasses a smaller geographic area than the one in which both locals have territorial jurisdiction might lead to further strife. Our award, therefore , shall apply to all work of the type involved In the Instant dispute in any of the 19 counties of Michigan where both Riggers 575 and Millwrights 1102 claim jurisdiction . In making this determination, we are assigning the various types of work In dispute on "building trades" jobs either to riggers who are represented by Riggers 575, but not to that union or its members, or to millwrights who are represented by Millwrights 1102, but not to that union or its members. MILLWRIGHTS' LOCAL UNION NO. 1102, CARPENTERS 1081 taken into account and weighed in the balance; it does not, as asserted in the dissent; constitute the "only basis" for the determination we have reached. Our determination, although also supported by other considerations including the Goodfellow decision, rests primarily upon the interunion agreement of the locals herein involved and their parent internationals to accept' and abide by the work jurisdictional apportionment of the 1957 Dunlop Award, upon -the policy considera- tions favoring support of voluntary interunion adjustments of juris- dictional boundaries, particularly where, as here, they relate to con- struction industry projects organized along building trades lines, and upon the importance in such "building trades" situations of having contractors, honor established work jurisdictional divisions and follow uniform work assignment practices if .jurisdictional conflict is to be set at rest. In the' context of this case, we are fully persuaded that, on balance, these considerations,clearly outweigh those on which our dis- senting colleague would alone rely to reach an opposite conclusion.26 3. As reference to the record and 'to the parties' briefs will readily disclose, there is no substance whatever to the assertion in the dis- sent that, "this case was tried by all parties on a theory entirely dif- ferent from that on which the Board's,award proceeds." The basic issue litigated in this case was whether, in the light of all relevant considerations, the disputed work,in its 'entirety should be assigned to millwrights as provided for in the Dunlop Award, or should instead be assigned to riggers. Our determination proceeds essentially on the "all or nothing" basis on which the case was litigated. It is true that in fashioning our award' we have taken into account the posthearing Goodfellow decision of the Joint Board, which, as we construe it, modifies the Dunlop Award in ,certain respect favoring the Riggers. But this conforms with, rather than deviates from, the "all or noth- ing" approach taken by the parties. The Goodfellow decision is bind- ing on the Millwrights and has been acquiesced in by that union. Its practical effect is to reduce the Millwrights' work allocation under the Dunlop Award to which its work jurisdictional claim is tied, and to 26 There is no evidentiary support for the broad assertion in the dissent that there has been "an effective repudiation of [the 1957 Dunlop] agreement and award by the parties." That agreement has never been formally renounced by any of the parties thereto. The Goodfellow decision is not a repudiation but a reaffirmation with slight modifications of the 1957 Dunlop Award underlying the interunion agreement Quite clearly , Millwrights 1102 and its international continue to look to that agreement subject to the modifications so made as possessing continuing vitality . There is nothing in the record to suggest any unwillingness on the part of the parent international of Riggers 575 to continue to honor its commitment under that agreement. On "building trades" projects to which the inter- union agreement alone applies , Riggers 575 has also continued in effect to comply with the Dunlop agreement where machinery erection work is performed by general contractors, but has sought to deviate from it only where the same work is performed by rigging specialty contractors . To give the unilateral deviation of Riggers 575 the force of an "effective" nullification of the interunion agreement , would be to put a premium on breaches of voluntary interunion agreements adjusting jurisdictional differences and rob such agreements of their effectiveness as normative and stabilizing factors. 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the extent it has done so, it has also reduced the scope of the work in dispute, and some of the inefficiency claimed for the Dunlop Award. 4. There is likewise no substance to our dissenting colleague's asser- tion that our determination contains "no reasonably clear definition of the work involved or of the location of the line between riggers' and millwrights' work" Our determination upholds in essence the work assignment apportionment particularized in the Dunlop Award, except for the modifications of paragraphs 13 (a) and (b) thereof as stated above. The Dunlop Award spells out with reasonable precision the jurisdictional division between millwrights' and riggers' work. Because this case was litigated on an "all or nothing" basis, without reference to whether separate items of the work in dispute, as dis- tinguished from the totality of such work, should be assigned to one or the other of the disputing unions, the record as made provides no basis for a different or clearer definition. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board makes the following Determination of Dispute. 1. Employees who are employed by Don Cartage Company or any other employer-member of Intervenor and who are represented by Riggers and Machinery Erectors, Machinery Movers Local No. 575, International Association of Bridge, Structural and Ornamental Iron Workers of America, AFL-CIO, are entitled on "building trades" jobs to perform the following disputed operations: the removal of all anchor bolts and nuts; the dismantling of machinery; packaging of machines ; the assembly of nonpackaged machines by means of power equipment; and installations relating to horizontal and vertical sur- faces by means of power equipment. 2. Millwrights Local Union No. 1102, United Brotherhood of Car- penters and Joiners of America, AFL-CIO, Carpenters District Council of Detroit, Wayne and Oakland Counties and Vicinities, United Brotherhood of Carpenters and Joiners of America, AFL- CIO, and Detroit and Wayne County, Oakland and Macomb Coun- ties, Michigan Building and Construction Trades Council, are not entitled, by means proscribed by Section 8 (b) (4) (D) of the Act, to force or require Don Cartage Company, or any other employer- member of Intervenor, to assign the above work to members of Mill- wrights Local Union No. 1102, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. 3. Employees engaged as millwrights are entitled to the assignment by Don Cartage and other members of the Intervenor of the follow- MILLWRIGHTS LOCAL UNION NO. 1102 , CARPENTERS 1083 ing work on "building trades" jobs: the aligning, leveling, and anchoring of machinery ; uncrating, blocking, and bracing above the machine skid; the opening of boxes of parts and the removal of pro- tective covering; the laying out, drilling, and installing of anchor bolts'and nuts; the cleaning and dressing of machine surfaces and component parts; assembly, bolting, aligning, and unpacking ma- chines by hand and with the use of chainfalls; dressing and installa- tion of small parts of package machine; and the final tightening and adjusting of machines. 4. Within 10 days from the date of this Decision and Determina- tion of Dispute, Millwrights Local Union No. 1102, United Brother- hood of Carpenters and Joiners of America, AFL-CIO, Carpenters District Council of Detroit, Wayne and, Oakland Counties and Vicin- ities, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and Detroit and Wayne County, Oakland and Macomb Counties, Michigan Building and Construction Trades Council, shall notify the Regional Director for Region 7, in writing, whether or not they will refrain, from,forcing or requiring Don Cartage Company, or any other employer-member of Intervenor, by means proscribed by Section 8(b) (4) (D) of the Act, to assign that portion of the work in dispute herein found properly to be riggers' work to members of Mill- wrights Local Union No. 1102 rather than to employees represented by Riggers Local Union No. 575. MEMBER JENKINS, dissenting : Because the record in this case compels the award of the disputed work to employees represented by the Riggers and does not permit the award made by the majority, I must dissent. Efficiency and economy in the performance of the disputed work undoubtedly favors the Riggers, as my colleagues concede. The record establishes that the Millwrights and the Riggers, as well as the employing'specialty contractors, all agree that where both riggers and millwrights are employed simultaneously on a job as the majority's award requires, "standby time," that is, idle time for one or the other of the groups of employees, does not simply "tend to occur" but in fact does occur and is indeed unavoidable.-' Efficiency through the use of a single crew of riggers to carry through to completion a job in which they are necessarily engaged in the earlier stages, rather than employing two crews of millwrights and riggers in the later stages, is in fact the core of this dispute. The Board's award disregards the factors, of efficiency and economy which overwhelmingly favor the riggers; it substitutes a speculation, unsupported by anything in the aT Blue, an official of Don Cartage, familiar with the operations in the rigging industry, characterized this standby time as "featherbedding." , 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record and little nourished by the lack of clarity in the award, that split assignments will be eliminated , which in turn my colleagues "believe" will "largely reduce" the amount of standby time. Similar disregard of these factors in an arbitration award strikingly like the one on which the majority relies caused the court in International Brotherhood of Carpenters and Joiners of America v. C. J. Montag cf, Sons, 335 F.2d 216 ( C.A. 9, per Madden, J.), footnote 31, infra, to be unwilling to give any weight or credence to the award. The award made by the majority also disregards the practice in the rigging industry. The record establishes that 95 percent of the rig- ging work 28 in the Detroit -18 county area where this dispute exists is done by riggers and that in such cases riggers do the entire job, including all the types of work claimed by the Millwrights here, and their right to perform such work is undisputed. Concededly , the char- acter and job content of the work is the same in the 5 percent sector of the industry where the dispute exists as it is in the 95 percent sector where the riggers' performance of the entire job is unquestioned. Whether this practice has developed in this area because of frequent auto model changeovers requiring a highly specialized and proficient rigging industry, or for whatever reasons, the practice exists and the Board must take it into account. The majority ignores this practice ; instead, it relies on practices in three other cities , plainly irrelevant here, skips over the relevant prac- tice, and seizes on the fact that within the 5 percent of the rigging work where the dispute lies , the division between riggers and mill- wrights is not established by the record , then concludes that because this small segment of the industry is performed on "building trades jobs" and because the division within such segment is unknown, it is appropriate to disregard the industry practice and allocate part of the work to the millwrights and part of it to the riggers . Defining the practice by such a tailoring permits the reaching of any result desired, and vitiates practice as a criterion for making awards in jurisdictional disputes. By making the award rest on the type of project at which the work is done, that is, whether other building trades crafts are employed on the job, my colleagues permit the award to be dictated by the ability of the building trades to shut down the job . For me, the relevant practice which CBS and Jones require the Board to consider is that followed in doing rigging work in the Detroit -19 county area. The record establishes that 95 percent of such work, plus an unknown fraction of the remaining 5 percent, is done by riggers who perform 28 The only witness qualified to know the practice over the entire area so testified with- out contradiction , and his description of the area practice took into account the work of all employers doing rigging work , not only his own company but all specialty contractors as well as the so -called "general" contractors who are willing to employ millwrights in doing part of the rigging work. MILLWRIGHTS LOCAL UNION NO. 1102, CARPENTERS 1085 the.entire job without use of millwrights, and the practice therefore is dominantly in favor of the riggers. The award made by the majority also disregards the assignment of work made by the Employer here. In the circumstances of this case, and pursuant to the practice in the Detroit-19 county area, the Employer's assignment of work is in fact no more than a reflection of which kind of employer, specialty contractor or general contractor, successfully bids on the work; a specialty contractor always assigns the work to riggers in his employ unless compelled (as was attempted here) to employ millwrights in addition; 29 a general contractor always assigns a part of the work to millwrights, in order to prevent the other crafts he has to use from shutting down the work. Thus the dispute here involves the right or freedom of specialty contractors to continue to bid for and perform with employees of their own choos- ing, (riggers) rigging work on jobs where other building trades are employed by other employers. Though in such circumstances the employers' assignment of the work may not carry the weight it would where the assignment was made by a single employer making a choice between two competing groups in his own employ, the assignment is nonetheless entitled to some weight, and the majority gives it none. The only basis for the majority decision is the Goodfellow arbitra- tion award. My colleagues set forth seven standards which they dis- cern formed the basis for the award. However, they misconceive some of these standards and several of them are inconsistent with the cri- teria which the Board has heretofore held to require consideration under the CBS decision. i° The Goodfellow decision asserted that there must be a national rule for the allocation of the work in dispute; that - Cf. Arthur Venneri Company (Local 5, Plumbers ), 145 NLRB 1580. ° The criteria on which Goodfellow is based, as stated by the majority, with my com- ments in parentheses at the end of each , are as follows . 1. Amount of work in dispute . ( The meaning of this standard is that the work involved is not so small as to be de minimis or incidental , and that other building crafts were present on the job, neither of which considerations furthers a reasoned award.) 2. Past work assignments of the employer . ( It is the past assignments which have created this dispute, but they are entitled to consideration , however, what this stand- ard turns out to mean in the arbitration award is that a rule of uniform application over the entire country should be devised for allocating the disputed work, an approach at odds with the concession in the arbitration award itself that collective bargaining, wages , and fringe benefits are all established on an area basis ) 3 & 4 Practice in the area; and practice in other areas ( The approach in the Goodfellow award to practice is the same as that of my colleagues , and is subject to the objections mentioned earlier.) 5. Previous agreements between unions concerning the dispute . ( Since these previous agreements failed to settle the dispute, to give much weight to them would appear to invite continuance of the dispute ) 0 Basic work jurisdiction of each union . ( The only information Goodfellow con- veys on this point is contained in the phrase "at the center of the duties ") 7. Jurisdictional statements in the union agreements and constitutions , and Board certifications . ( These are two of the criteria the Board considers relevant under CBS; Goodfellow would exclude any consideration of such materials ; I would agree that in disputes of this type the weight to be given them should be slight.) 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD separate criteria, different from the Board's, are appropriate in resolving disputes in the building trades; and that the Board should not only give weight to but should follow and adopt arbitrators' awards in this area unless there was misconduct or gross violation of public policy in the arbitration. In short, Goodfellow commands the Board to follow its award regardless of the fact that the usual Board criteria might point to it different award, and would have the Board abdicate to the arbitrator its function of making a reasoned determi- nation in such disputes. This the Board has done. Even Goodfellow's erroneous conclusion that all the parties were bound to that particular arbitration process, and its error (as shown by this record) in stating that there would be no loss of efficiency because the work " can be" arranged sequentially, have not dissuaded the Board.31 The reasons asserted for adopting Goodfellow as the Board's award do not withstand scrutiny. The "direct relation" of the work award to the traditionally "central" work jurisdiction of each claimant is not apparent from any facts in Goodfellow nor in the record before us. The practice "elsewhere in the United States" refers only to three other cities, which practice is irrelevant here, as I have already- noted. Approval and acceptance of the award by the building trades and the contractors who do business with them is no more than the predict- able reaction of those in whose favor the award is made; and to jus- tify the award on the basis of "traditions"and "expectations" of these groups is to beg the question. In disclaiming sole reliance on Good- fellow, the majority asserts reliance "primarily" on the "continuing viability" of the predecessor and somewhat similar Dunlop Award, on the interunion agreement to accept and abide by that award, and on the policy of supporting voluntary interunion adjustment of juris- dictional disputes. But such reliance is misplaced here, in view of the continuance of the dispute, the effective repudiation of that agreement and award by the parties culminating in the Goodfellow award, the departure from the earlier agreement and award by both the arbitra- tor in Goodfellow and the majority who now follow him, and the inherent and conceded ambiguity of the latter award. In fact, there- fore, the sole basis for the award my colleagues make is Goodfellow. Because this case was tried by all parties on a theory entirely dif- ferent from that on which the Board's award proceeds, the award is unrelated to any facts before the Board and, perhaps in consequence,, is so ambiguous as to raise serious questions concerning its applica-. ,"In a jurisdictional dispute involving these same international unions , an award in favor of the Carpenters by the same arbitration board as here, containing many of the same infirmities noted above, for that reason provided no defense to a judgment for damages under Section 303(a) (4) of the Act against the Carpenters for striking to obtain the work so awarded. Carpenters v. C J. Montag f Sons, supra. That case is even stronger than the present one for following the arbitration award, since all parties, including the employer, had agreed to be bound by the arbitration MILLWRIGHTS LOCAL UNION NO. 1102 , CARPENTERS 1087 tion and the Board's ability to enforce it. The award contains no rea- sonably clear definition of the work involved nor of the location of the line between riggers' and millwrights' work. It gives no indication of what extent,-method, or circumstances of use of power tools will entitle riggers to perform the work, nor what constitutes "assembly" of machinery which is awarded to riggers. The award modifies the earlier Dunlop Award to give the riggers some additional work, but the extent and application of the modification are far from clear.32 My colleagues' admonition to the-Millwrights not to be "technical" in applying the award, apparently made in contemplation of some of the foregoing uncertainties in the award, is likewise uncertain in purpose, and effect and adds a further element of opacity to it. As a result of the Board's disposition of the case on a theory quite different from that on which it was tried,33 there is no evidence in the record before us from which one can ascertain the meaning and appli- cation of the award made. The majority seeks to bring its award within the theory on which the case was tried, i.e., that the award should assign all the disputed work to one claimant or the other with- out dividing it, by asserting that the Millwrights' posthearing con- cession of a part of the work conformably to Goodfellow causes the majority's award to dispose of all of the work that remains in dispute. But this is no more than a restatement in different' words of the' fact the award here made covers only a portion of the work in dispute at the time the case was tried, with little indication in the award, in Goodfellow, or in the record as to what that portion is and where or how the line should be drawn. The award therefore represents "[t]he decision of a law suit on a basis different from one on which it was tried [which] is never very satisfying," Western States Regional Council No. 3 (Weyerhaeuser Co.), 365 F.2d 934 (C.A.D.C.). Because the record here is devoid of evidence of any facts relevant to' the award made by the Board, "there is a serious question of fairness 'of procedure in relation to a litigant who' has assembled and presented his evidence and conducted his cross-examination on a theory unlike the one intruded here for the first time by the Board [long] after the record closed." Western ,States Regional Council No. 3, supra. The record before us and the criteria the Board ordinarily uses in determining jurisdictional disputes require that the disputed work be awarded to employees represented by the Riggers. The Board's award 32 The majority considers the modification to affect only paragraphs 13(a) and (b) of the Dunlop Award. However, it would appear that if power equipment is used in assembly, riggers.might also be entitled to "the handling of component parts of machines by hand" In paragraph 12(b), and to the use of chainfalls in paragraph 12(c) if power tools are elsewhere used in the assembly ; further, the "assembly" which is awarded to the riggers might also include "final tightening" under paragraph 13 (e). 33 Adoption of this new theory appears to stem from a concession of some of the work made by the Millwrights in their brief after the record was closed, plus the subsequent issuance of Goodfellow. 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is not and on this record cannot be sufficiently definite to be applied or enforced; for this reason, and because it maintains the division of work which has spawned the dispute, it will prolong rather than set- tle the dispute. In following Goodfellow without regard to the record, the Board has acceded to the demand that the Board abdicate to the arbitrator the judicial role which the statute commands it to play in making jurisdictional awards. From this action I am compelled to dissent. Humble Oil & Refining Company and Local 866, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner, and Esso Seamen's Association, Intervenor. Case 22-RC-2941. July 6, 1966 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to the provisions of a Stipulation for Certification upon Consent Election, approved July 15, 1965, an election by secret ballot was conducted at various times and places during the period August 2 to November 19, 1965, under the direction and supervision of the Regional Director for Region 22, in the unit which was stipulated to be appropriate, to determine whether or not the employees therein desired to be represented by the Petitioner or the Intervenor for pur- poses of collective bargaining. Thereafter, the parties were furnished with a tally of ballots showing that 698 of approximately 750 eligible voters cast ballots, of which 201 were for the Petitioner, 463 were for the Intervenor, 33 were against the participating labor organizations, and 1 ballot was challenged. The challenged ballot was insufficient to affect the results of the election. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election. After an investigation, the Regional Director issued his report on objections on February 9, 1966, in which he recommended that the objections be overruled in their entirety. Petitioner then filed timely exceptions to the Regional Director's report and the Employer filed a brief in support of the report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 160 NLRB No. 62.