Intl. Assn. of Heat & Frost Insulators

INTL. ASSN. OF HEAT & FROST INSULATORS International Association Heat & Frost Insulators & Asbestos Workers, Local 28 and Paul Jensen, Inc. et at. and United Brotherhood of Carpenters and Joiners of America, Local 515, AFL-CIO. Case 27-CD-110 October 28, 1970 DECISION AND ORDER QUASHING NO- TICE OF HEARING BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by Gerald A. Phipps, Inc., herein called Phipps, on December 10, 1969, alleging that Interna- tional Association of Heat & Frost Insulators & Asbestos Workers, Local 28, herein called Asbestos Workers, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring Paul Jensen, Inc. to assign certain work to employees represented by the Asbestos Workers rather than to employees represent- ed by the United Brotherhood of Carpenters and Joiners of America, Local 515, AFL-CIO, herein called Carpenters. A hearing was held before Hearing Officer Robert E. A. Lee on March 3, 1970. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing upon the issues. At the conclusion of the hearing the Asbestos Workers moved to dismiss the charge. The Hearing Officer referred the motion to the Board. Thereafter briefs were filed by Asbestos Workers and Phipps and Jensen. 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. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: 1. The record shows, and we find, that Gerald H. Phipps, Inc., and Paul Jensen, Inc., are engaged in commerce within the meaning of the Act. 2. The parties stipulated, and we find, that Asbestos Workers and Carpenters are labor organiza- tions within the meaning of the Act. 3. The Dispute. Phipps is the general contractor in a job now in progress for the Mountain States Telephone & Telegraph Company in Colorado Springs, Colorado, 137 for the construction of a seven-story addition to the existing main telephone exchange building. Phipps had a subcontract with Paul Jensen, Inc., herein called Jensen, for a substantial amount of acoustical work, as well as insulation in the ceiling of the boiler and mechanical rooms in the basement of the new addition. Jensen has a contract with the Carpenters, expiring on April 30, 1972, and containing a provision that the parties shall be bound by decision of the National Joint Board. The work of insulating the pipes in the heating and air conditioning plant of the building was performed by another subcontractor, Construction Specialties, Inc., herein called Special- ties. There is an existing agreement between Special- ties and the Asbestos Workers. Jensen commenced the installation work in the boilerroom on December 8, 1969. Agents of the Asbestos Workers and Carpenters notified Phipps that they both claimed such work. On December 10, 1969, the Asbestos Workers caused a work stoppage from 8 until 10 a.m. on December 11, 1969, to protest the assignment of the disputed work to the Carpenters. Jensen has not performed any insulation work on the job since December 10, 1969. On February 9, 1970, Jensen received a copy of a letter from the Asbestos Workers, which was written to Phipps, informing him that the Asbestos Workers had requested a National Joint Board decision. During this time, Jensen was advised by the Carpen- ters that they likewise had submitted the matter to the National Joint Board. Phipps and Jensen contend that neither has had representation on the National Joint Board since September 30, 1969, when the National Joint Board expired and that the Carpenters agreements were printed prior to that time. They contend further that they are members of the Associated General Contrac- tors of America, herein called A.G.C., and that the A.G.C. is not a member of the interim or newly reconstituted National Joint Board, which came into existence on October 15, 1969. On the basis of the foregoing, we are satisfied, and find, that Jensen had bound itself by contract with the Carpenters, to be bound by the decision of the National Joint Board. This understanding by Jensen was unrelated to its membership in A.G.C., and hence the present A.G.C. position concerning that board is irrelevant. The existing agreement with the Carpen- ters contains language as follows: "(2) If settlement cannot be reached in this manner, then the procedural rules of the National Joint Board for the Settlement of Jurisdictional Disputes shall be initiated at once. Both the Union and the Contractors agree to be bound by the National Joint Board. It is understood that this 186 NLRB No. 20 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD procedure includes a process for filing of appeals against adverse decisions." The record further shows that the Carpenters wrote a letter to Phipps, who later sent a copy to Jensen, stating that the Carpenters had submitted the matter to the National Joint Board, and that as signatories to the contract, both Jensen and the Carpenters were bound by the National Joint Board assignment. We are persuaded that in light of Jensen's contract with the Carpenters providing for submission of disputes to the National Joint Board, and the Asbestos Workers submission of the disputed work to the National Joint Board for a decision, and the fact that the dispute in question has been submitted to the National Joint Board which awarded the work to the Asbestos Workers, the policies underlying Sections 10(k) and 8(b)(4)(D) will not be served by Board intervention in this dispute. Sections 10(k) and 8(b)(4)(D) were enacted to protect employers and the general public from the wasteful consequences of jurisdictional strikes.' This was to be achieved through procedures designed (1) to encourage the settlement of jurisdictional differences without Board intervention, (2) to empower the Board to determine disputes not resolved by private arbitrators, and (3) to outlaw jurisdictional strikes in the interests of neutral employers and the public.2 These considerations militate in favor of the Board's withholding a determination of a jurisdictional dispute not only when there has actually been a voluntary adjustment, but also whenever the Board has before it "satisfactory evidence" that the parties have agreed on methods for the voluntary adjustment of the dispute.3 Under the circumstances herein, it is apparent that an assertion of 10(k) jurisdiction would not effectuate the policies of the Act.4 To proceed to a dispute determination simply because one or more of the parties to an agreed voluntary means of settlement of the dispute is not satisfied with the award of the forum designated would be to convert Section 10(k) to a compulsory arbitration procedure that is available without limitation to any party contesting an assign- ment or award of work. Such a view is not supported by the legislative history and would have the detri- mental effect of encouraging and prolonging jurisdic- tional disputes, while at the same time discouraging resolutions of such differences through voluntary methods of adjustment. For these reasons, we find merit in the position of the Asbestos Workers that there exists an agreed- upon method for the voluntary adjustment of this dispute and, accordingly, we shall quash the notice of hearing in this case. 1 H.R. Rep. No. 245, 80th Cong., 1st sess. (1947), 1 Leg. Hist. 294-296, 314-315. 2 See Kentucky Skilled Craft Guild, 155 NLRB 1196. s Don Cartage Co., Inc., 121 NLRB 101. 4 We find no merit in Phipps' and Jensen's contention that, because the National Joint Board stopped functioning for a time, it was not a satisfactory forum for resolution of the dispute. The record shows that the National Joint Board was reconstituted and is presently functioning. ORDER It is hereby ordered that the notice of hearing issued in this proceeding be, and it hereby is, quashed.