Marble Masons Subordinate Union No. 3

392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Marble Masons, Terrazzo Workers and Tile Layers Subordinate Union No. 3 of Kansas City, Bricklay- ers, Masons and Plasterers International Union of America, AFL-CIO and Winn-Senter Construction Company and United Brotherhood of Carpenters and Joiners of America, District Council of Kansas City and Vicinity, AFL-CIO. Case 17-CD-I 54 November 30, 1971 DECISION AND ORDER QUASHING NOTICE OF HEARING BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY, This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by Winn-Senter Construction Company, herein called Winn-Senter, on October 19, 1971, alleging that Marble Masons, Terrazzo Workers and Tile Layers Subordinate Union No. 3 of Kansas City, Bricklayers, Masons and Plasterers International Union of America, AFL-CIO, herein called Masons, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with the object of forcing or requiring Winn-Senter to assign certain work to Masons rather than to employees represented by United Brotherhood of Carpenters and Joiners of America, District Council of Kansas City and Vicinity, AFL-CIO, herein called Carpenters. Pursuant to notice, a hearing was held before Hearing Officer Frederick C. Herzog on November 9, 1971, in Kansas City, Missouri. 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 on the issues. No briefs were filed. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. The Board has considered the entire record in this case and hereby makes the following findings: 1. THE BUSINESS OF THE EMPLOYER Winn-Senter, a Missouri corporation whose princi- pal office is in Kansas City, Missouri, is'a general contractor engaged in the building and construction industry. In the course and conduct of its business it annually performs services valued in excess of $50,000 outside the State of Missouri. Accordingly, we find, as the parties have stipulated, that the Employer is 194 NLRB No. 74 engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS The parties stipulated, and we find, that Masons and Carpenters are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute The work in dispute consists of the installation of polyester countertops on wood frames at the Alameda Plaza Hotel construction site in Kansas City, Mis- souri. B. Background and Facts of the Dispute Winn-Senter is the general contractor on a job now in progress at the Alameda Hotel construction site in Kansas City, Missouri. It began work on the project in February 1969. Performance of the disputed work herein commenced in early summer 1971. At that time Winn-Senter assigned the work in question to its own employees who are carpenters represented by Carpen- ters with whom Winn-Senter has a contract by virtue of its membership in the Builders' Association of Kansas City, Missouri. Winn-Senter has, no contract with the Masons. According to James M. Senter, an official of Winn- Senter, on or about September 13, 1971, Boyd Campbell, the Masons business manager, telephoned Senter and claimed the disputed work . Three days later, Campbell phoned Senter again and told him that he "would of necessity have to take the thing to the Joint Board." On September 16, 1971, Senter received a letter from the National Joint Board for the Settlement of Jurisdictional Disputes , herein called the Joint Board, requesting information pertaining to the dispute. In response, Senter sent a telegram to the Joint Board stating in his words, "It is my understand- ing that we are not committed to the National Joint Board with either of these crafts and, therefore, would not necessarily abide by a decision that was made in this dispute." On October 8, 1971, the Joint Board awarded the disputed work to the Masons. Neither the Employer, the Builders Association of Kansas City, Missouri, nor the Carpenters participated in the Joint Board proceeding. Senter testified that on October 19, 1971 , a picket was placed upon the Alameda Plaza Hotel project. The parties stipulated that the banner worn by the picket "was placed there by Marble Masons Local 3 and it did say that `Winn-Senter Construction Company is refusing to abide by the National Joint MARBLE MASONS SUBORDINATE UNION NO. 3 393 Board decision' and the name of the union was there, and then a final thing, `We have no dispute with any other employer on this job.' " Senter stated that the picket remained on the project until a Federal district court granted a temporary injunction. Campbell admitted that beginning on or about September 9, 1971 , and continuing to the date of the hearing, by various means including picketing for a period of 8 working days, he, on behalf of the Masons, did attempt to cause Winn-Senter to assign or reassign the disputed work from the employees represented by the Carpenters to employees represented by the Masons. The contract between the Builders' Association of Kansas City, Missouri, and the Carpenters, to which Winn-Senter is a party, contains a provision binding the parties to the Joint Board. This contract, which was originally entered into on April 1, 1966, expires on March 31 , 1973. It was last revised on December 1, 1969, at which time the wage provisions were amended and apparently the term of the agreement was extended. James Hutton, the labor relations representative of the Builders' Association of Kansas City, Missouri, testified that at the time of the December 1, 1969, revision, there was no attempt to modify any provisions in the agreement other than the wage and term clauses, although he conceded that there was nothing to preclude the parties from deleting the Joint Board provision. C. Contentions of the Parties Winn-Senter and the Carpenters contend that they ceased to be bound by the decisions of the Joint Board when that entity expired on September 30, 1969, and that, since they allege they did not agree to the provisions of the new Joint Board established by agreement in 1970, there did not exist any method for the voluntary settlement of the instant jurisdictional dispute to which all necessary parties were bound. The Carpenters further contends that it is not bound to the Joint Board because of its current position of "non-compliance" with Joint Board determinations. The Masons contends that the Board has no jurisdiction over the matter as Winn-Senter and the Carpenters are bound to the Joint Board by virtue of their current contract, which it argues was not canceled by any change in the composition of the Joint Board. The Masons also argues that, although not a party to any contract calling for submission to the Joint Board, it has effectively agreed to be bound by virtue of having submitted the dispute to the Joint Board. D. Applicability of the Statute Before the Board may proceed to the determination of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that the parties have not agreed upon methods for the voluntary adjustment of the dispute. For the reasons stated below, we find it unnecessary to pass upon the merits with respect to a proper award of the disputed work because from the record it appears that all the parties involved in the instant proceeding agreed to be bound by a determination of the Joint Board. The Joint Board, which was in existence when the 1966 contract between Winn-Senter and the Carpen- ters was executed, had been created by agreement between the Building and Construction Trades Department, AFL-CIO, the Associated General Contractors of America, herein called AGC, and eight specialty contractors' associations. In 1968, AGC gave notice of its intent to terminate that agreement and, on September 30, 1969, the agreement was terminated and the Joint Board expired. Thereafter, on October 31, 1969, an interim agreement was entered into between the Building and Construction Trades Department, AFL-CIO, and certain contrac- tors' associations to handle jurisdictional disputes through Joint Board procedures until February 28, 1970. Subsequently, on April 3, 1970, a new Joint Board was established by agreement between the Building and Construction Trades Department, AFL-CIO, and "Participating Contractors' Employ- ers' Associations." We find that the conduct of Winn-Senter and the Carpenters, in failing to delete the Joint Board provision in their contract on December 1, 1969, at a time subsequent to the demise of the Joint Board on September 30, 1969, and'while an interim Joint Board agreement was in existence, had the effect of reaffirming their prior commitment and indicating they intended to be bound by decisions of the interim Joint Board and any other more formal structure which thereafter arose. We further find that the Joint Board provision in the agreement between Winn-Senter and the Carpenters, together with the Masons effective agreement to be bound to the Joint Board by virtue of having submitted the instant dispute to the Joint Board, establishes an agreed-upon method for voluntary adjustment of the jurisdictional dispute involved in this proceeding. Accordingly, we shall quash the notice of hearing issued herein. ORDER It is hereby ordered that the notice of hearing issued in this proceeding be, and it hereby is, quashed.