Bricklayers, Local No. 1

BRICKLAYERS, LOCAL NO. 1 Bricklayers, Masons and Plasterers' International Union ,of America, Local No. 1, AFL-CIO and Lembke Construction Company of Colorado, Inc. and Carpenters District Council of Denver and Vicinity. Case 27-CD-126 December 21, 1971 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING, JENKINS, AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed on March 11, 1971, by Lembke Con- struction Company of Colorado, Inc. (hereinafter called Lembke or the Employer), alleging that Bricklayers, Masons and Plasterers' International Union of America, Local No. 1, AFL-CIO (hereinafter called Bricklayers), had violated Section 8(b)(4)(D) of the Act by engaging in certain pros- cribed activity with an object of forcing or requiring Lembke to assign certain work to employees repre- sented by Bricklayers rather than to employees represented by Carpenters District Council of Denver and Vicinity (herein called Carpenters). A hearing was held before Hearing Officer Clinton M. Elges on May 6, 1971. 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. Briefs have been filed by Bricklayers, and jointly by the Employer and Carpenters. 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 BUSINESS OF THE EMPLOYER The parties stipulated that Lembke Construction Company of Colorado, Inc., is a Colorado corpora- tion which annually receives goods and materials valued in excess of $50,000 from sources outside the State of Colorado. We find, therefore, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. Ii. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Bricklayers and Carpenters are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Facts 649 Lembke, the Employer herein, is engaged as general contractor in the construction of Skyline Park Apartments, a multistory urban renewal project in Denver, Colorado. Work on the project began on or about May 1, 1970. Part of the construction of this building, and the work in dispute herein, involves the erection and installation of precast concrete panels, including balcony railings. The Employer is a member of Associated Building Contractors of Colorado (ABC), an affiliate of Associated General Contractors of America (AGC). By virtue of such membership, the Employer is party to ABC's current collective-bargaining agreements (effective from May 1, 1969, to April 30, 1972) with Carpenters and with Bricklayers. Pursuant to these contracts, the Carpenters and Bricklayers each claimed jurisdiction of this work and demanded that it be assigned to employees represented by it. In September 1970, Lembke advised that the work in question would be assigned to its employees repre- sented by Carpenters and, on November 5, 1970, Lembke confirmed this assignment in writing. Brick- layers continued to claim this work. On January 29, 1971, Bricklayers submitted the dispute to the National Joint Board for Settlement of Jurisdictional Disputes. Neither the Employer nor the Carpenters participated in the Joint Board's proceed- ings, and on February 19, 1971, the aforementioned organization awarded the work in question to employ- ees represented by Bricklayers. No appeal was taken. However, neither the Employer nor the Carpenters complied with the Joint Board's decision and, on March 10, 1971, that board issued a directive ordering compliance by the Carpenters. Also on March 10, the Bricklayers demanded that Lembke comply with the Joint Board's decision and assign the disputed work to employees represented by it. When Lembke refused to do so, the Bricklayers began picketing the Skyline project site. Such picketing was still in progress at the time of the hearing. B. The Work in Dispute The work in dispute is the erection and installation of precast concrete panels, including balcony railings, at the Employer's Skyline Park Apartments project in Denver, Colorado: C. The Contentions of the Parties The Employer contends that it ceased to be bound by the decisions of the National Joint Board when that entity expired on September 30, 1969, and that, 194 NLRB No. 98 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD since it had not agreed to the provisions of the new National Joint Board agreement, there did not exist any method for the voluntary settlement of the instant jurisdictional dispute to which all necessary parties were bound. The Employer further contends that its assignment of the disputed work was proper in light of certain factors usually considered by the Board in these matters. The Carpenters agrees with the Em- ployer's position. The Respondent Bricklayers, on the other hand, contends that the Board is without jurisdiction to determine the merits of the dispute , under Section 10(k) of the Act since the parties, by the terms of their collective-bargaining agreements, have agreed upon a method for the voluntary adjustment of the dispute. Relying on Paul Jensen, Inc.,' the Respondent argues that AGC's withdrawal from the National Joint Board is immaterial and does not affect Lembke's contractual obligation to abide by National Joint Board decisions. Accordingly, the Respondent con- tends that the notice of hearing must be quashed. Alternatively, the Respondent contends that the disputed work should be assigned to employees represented by it on the basis of certain factors normally considered by the Board in making awards. 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 (1) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and (2) the parties have not agreed upon methods for the voluntary adjustment of the dispute. As to (1), above, the parties herein have stipulated that Bricklayers began picketing the Employer's Skyline project on March 10, 1971, and that such picketing was in support of Bricklayers demand that Lembke assign the disputed work to employees represented-by Bricklayers. Accordingly, we find that reasonable cause exists to believe that Bricklayers picketing violated Section 8(b)(4)(D) of the Act. With respect to (2), above, Bricklayers contends that the parties have contractually agreed to have the National Joint Board determine their jurisdictional disputes. As stated, the Employer is party to ABC's current collective-bargaining agreements with Car- penters and Bricklayers. Both of these contracts are effective from May 1, 1969, to April 30, 1972, and expressly provide for the settlement of jurisdictional 'International Association of Heat & Frost Insulators & Asbestos Workers, Local 28 (Paul Jensen, Inc ), 186 NLRB No 20. 2 This agreement was entitled "Plan For National Joint Board For Settlement Of Jurisdictional Disputes." 3 The record fails to disclose whether Lembke was in fact at any time a member of AGC, either directly or derivatively through its membership in disputes by the National Joint Board. Thus, the contract with Carpenters provides: Should a jurisdictional dispute arise between Carpenters and another craft, the two business representatives shall promptly meet at the job with the project supervisor to attempt to resolve the issue. - If settlement cannot be reached in this manner, then the procedural rules of the National Joint Board- for the Settlement of Jurisdictional Dis- putes shall be initiated at once, and both the Union and the Employers agree to be bound by all decisions and awards of record as published by the National Joint Board. It is understood that this procedure includes a process for filing of appeals against adverse decisions. Similarly, the agreement with Bricklayers provides: 6. Nothing contained herein is intended as in infringement on the recognized jurisdiction of any other building trades union, and any jurisdiction or misunderstanding will be settled in the manner prescribed by the Building and Construction Trades Department. 8. Agreements and decisions of record as published by the National Joint Board for Settle- ment of Jurisdictional Disputes are recognized by this Agreement for clarification of the above jurisdiction. Any decisions rendered or agree- ments recognized in the future by the National Joint Board will be recognized and accepted under the terms of this Agreement. The National Joint Board for the Settlement of Jurisdictional Disputes which was in existence when the foregoing contracts were executed had been created by agreement between the Building and Construction Trades Department, AFL-CIO (whose membership includes the International Unions with which the Respondent and Carpenters District Council are affiliated), and the AGC and eight specialty contractors' associations .2 In 1968, AGC gave notice of its intent to terminate that agreement3 and, on September 30, 1969, the agreement was terminated and the National Joint Board expired. Thereafter, on October 31, 1969, an interim agree- ment was entered into between the Building and Construction Trades Department, AFL-CIO, and certain contractors' associations to handle jurisdic- tional disputes through National Joint Board proce- dures until February 28, 1970. Subsequently, on April 3, 1970, a new National Joint Board for Settlement of Jurisdictional Disputes was established by agreement ABC. Therefore, the Employer's reliance upon decisions such as Local 1151, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (S. J. Groves & Sons Company), 188 NLRB No 123 (wherein the employer is a member of AGC and signatory to AGC's bargaining agreement), is misplaced BRICKLAYERS, LOCAL NO. I between the Building and Construction Trades Department, AFL-CIO, and "Participating Contrac- tors' Employers' Associations." 4 Neither Lembke, ABC, nor AGC participated in the negotiation or execution of either the interim or the new National Joint Board agreements. Nor did the Employer, either directly or through its bargaining representative, agree to be bound by the provisions of the new Joint Board agreement, which expressly states, in Section 7, that: ... only those contractors who employ mem- bers of the organizations affiliated with the Building and Construction Trades Department of the AFL-CIO shall be considered as bound by this agreement when they have signed a stipulation setting forth that they are willing to subscribe to and be bound by the terms and provisions of this agreement. [Emphasis supplied.] In Paul Jensen, Inc., supra, we held that, as the employer's contractual obligation to resolve jurisdic- tional disputes through the National Joint Board was an individual undertaking, unrelated to its member- ship in AGC, the obligation was not conditioned upon AGC's continuing participation in, or support of, any particular National Joint Board.5 Accordingly, as Jensen's separate contract provided for submission of disputes to the National Joint Board and, as one of the contending unions had in fact submitted the particular dispute to the Joint Board, we found that an agreed-upon method for resolution of such dispute existed. Upon further reflection on the significance of that holding, however, particularly in light of the issues as presented in this case, we are constrained to conclude that the Jensen decision was erroneous and must be overruled,6 as it is inconsistent with our traditional interpretation of Section 10(k) and con- flicts with basic principles of contract law.7 The Board has consistently interpreted Section 10(k) to mean that the employer making the work assignment, as well as the rival unions claiming the work, comprise the "parties to such dispute," and that all must approve and enter into a voluntary adjust- 4 This agreement was entitled "Plan For Settling Jurisdictional Disputes Nationally And Locally." 5 Member Jenkins did not subscribe to this view 6 To the extent that they rely upon Jensen, supra, the following cases are hereby also overruled- Reinforced Iron Workers Local No. 426, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Jasinski Builders, Inc), 188 NLRB No 30; Laborers International Union of North America, AFL-CIO, Local Union No. 670 (Southern Illinois Builders Association), 189 NLRB No 98 7 As stated in 6 Corbin on Contracts, chap. 74, § 1321 "If the specific performance promised by a contractor becomes impossible, either by the destruction of the specific subject matter, the death of a necessary person, or the nonexistence of the specifically contemplated means of performance, his duty is discharged-unless the parties expressed a contrary intention." [Emphasis supplied.] s N L RB v Plasterers Local Union No 79, Operative Plasterers' and Cement Masons' International Association [Southwestern Construction Col, 651 ment procedure in order to preclude a hearing and determination pursuant to that sections In the instant case, the parties' contractual commitment to comply with National Joint Board determinations clearly had reference to a specific existing National Joint Board. There is no evidence to suggest that the parties intended by their 1969 contracts to be bound by any other than the then existing National Joint Board. Nor is there any principle of contract law by which the parties automatically became bound to the new National Joint Board, as if by operation of law, when that entity came into being during the parties' contract term. Although the new entity was designat- ed by the same name, "National Joint Board," it is clear that neither the Employer nor ABC had in mind any body not then in existence when they agreed to be bound by decisions of the existing "National Joint Board." The mere fact, therefore, that a new "National Joint Board" was created cannot establish that the Employer was bound by its decisions. To hold otherwise would be to find that, as far as the Employer's contractual obligations are concerned, no legal distinction exists between the original National Joint Board and the reconstituted National Joint Board and that National Joint Boards are, in effect, interchangeable. Accordingly, when the original National Joint Board expired on September 30, 1969, the parties' contractual obligation thereto also lapsed.9 This conclusion is enhanced by the fact that the new National Joint Board agreement, by its own terms, did not consider employers, who are not members of any signatory employer association, bound by its provisions until ". . . they have signed a stipulation setting forth that they are willing to subscribe to and be bound by the terms and provisions of this agreement." Furthermore, by article V of this agree- ment, the building and construction trades depart- ment and its affiliate International unions, ".. . expressly request each of the Building and Construc- tion Trades Councils, District Councils and Local Unions, respectively: (a) To secure written assent or stipulation to the 404 U.S. 116 (December 6, 1971). Lathers Union Local 104, The Wood Wire and Metal Lathers International Union, AFL-CIO (The Blaine Petty Company), 186 NLRB No. 70. 9 The arguments of our dissenting colleague might have some validity if the facts were as he states them , i.e., if this were a tripartite undertaking and, after the hiatus, either the identical Joint Board had been reactivated or all parties had demonstrated an intent to abide by the reconstituted Joint Board Absent these facts, however, the mere willingness of one of the contracting parties to substitute the reconstituted Joint Board for the entity originally provided for does not impose upon the other party a legal duty to agree to such substitution This is recognized by sections 309 and 310 of the Restatement of the Law of Contracts And see also Corbin on Contracts, quoted at In. 7 above. Here, there were two bilateral agreements, the original Joint Board was not reactivated, and only the Bricklayers sought to substitute the new Joint Board for the original one under its contract with the Employer. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD `Plan for Settling Jurisdictional Disputes Nation- ally, and Locally' by, all Employers, in signed agreement with said International Union, Council, and/or Local Union except for such employers who are stipulated to the Plan by the action of the employer's association of which they are mem- bers; or (b) To proceed at earliest opportunity to negotiate National Joint Board stipulation into all agree- ments with each employer whose employees are represented by such District Council or Local Union. In view of the foregoing, we find and conclude that at the time of the instant dispute there did not exist any agreed-upon or approved method for the voluntary adjustment of the dispute. The matter is, therefore, properly before the Board for determination. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to, and balancing, all relevant factors.10 The following factors are relevant in making the determination of the dispute before us: 1. Employer's assignment and past practice As stated, the Employer assigned the work of erecting and installing precast concrete panels, including balcony railings, to its employees who are represented by Carpenters, in accordance with its past practice. The Employer presented evidence that it customarily assigns this disputed work to its employ- ees represented by Carpenters where, as here, the precast panels are structural,11 rather than ornamen- tal, and to award such work to employees represented by Bricklayers where the precast is largely ornamen- tal. 2. Area practice Bricklayers contends that the area practice regard- ing multistory construction favors awarding the disputed work to employees represented by it, whereas Carpenters contends that area practice regarding structural, nonornamental, work favors its claim. The Employer contends that the evidence with respect to area practice is inconclusive but tends to favor the Carpenters position. 10 N.L R.B v Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO (Columbia Broadcasting System), 364 U S. 573, 586, International Association of Machinists, Lodge No 1743, AFL-CIO (J A Jones Construction Company), 135 NLRB 1402 11 It is conceded that the precast at the Skyline project here involved was structural and nonornamental 12 That summary shows that 68 "T-construction single story" jobs done Respondent placed in evidence a June 1, 1970, survey, tepoft,-on exterior wall panel, buildings in the, Carpenters Denver District Council area. This report was prepared by International representatives of the two contesting unions at the request of the National Joint Board because of the many jurisdictional disputes submitted to it by the Bricklayers against the Carpenters. The survey was made by each union submitting a list of jobs on which its members had worked. The Carpenters list enumerated a total of 257 jobs, of which 169 were verified for type of work involved, while the Bricklayers list contained 286 jobs, of which 173 were verified before the report was submitted. A summary of this survey describes the jobs only as being either single or multistory construc- tion. From this survey report, on which the National Joint Board relied in making its awards,12 it appears that more of the multistory work was performed by bricklayers than by carpenters, and more of the single-story work was done by carpenters than by bricklayers. The Employer contends, however, that the foregoing survey, in which it did not participate, is inconclusive because not all of the jobs listed were verified; Bricklayers kept regular records of jobs done by its members, while Carpenters kept no such records prior to June 1970; and, since June 1, 1970, carpenters have completed many more jobs of the type in dispute here than have bricklayers, notwith- standing National Joint Board awards to the contra- ry. Although the evidence presented is not entirely conclusive, as it is not broken down into structural and ornamental work, it tends to favor the Bricklayers inasmuch as the disputed work involves multistory construction. 3. Collective-bargaining agreements The Bricklayers, by its contract with the Employer, claims jurisdiction of ". . . all precast work, including plumbing, setting, aligning, caulking, patching, sili- coning, cleaning, placing and routing of all materials containing brick or stone or brick or stone products." The Carpenters by its contract with the Employer, claims jurisdiction over "... the unloading, han- dling, and installation of all exterior and interior panel wall systems, including transite, aluminum and any other material." Although the Employer contends that none of its several collective-bargaining agreements 13 requires it by carpenters, none by bricklayers, 17 "T multi-story" jobs done by carpenters, none by bricklayers, 8 "single-story precast panel" jobs done by carpenters and 11 by bricklayers; and, 12 "multi-story precast panel" jobs were performed by carpenters, 73 by bricklayers, for a total job figure of 105 for the carpenters and 84 for the bricklayers. In sum, on the T- structural units, all were done by carpenters, none by bricklayers; on the precast jobs, 84 were done by bricklayers and 20 by carpenters. 13 Although the Employer also has collective-bargaining agreements BRICKLAYERS, LOCAL NO. 1 653 to assign the work to any one of the unions, it notes that only the Bricklayers contract is specifically limited to precast work involving "brick or stone or brick or stone products." Since the installation of the precast work involved in this dispute concerns only precast concrete,-which concededly-does not contain brick or stone or brick or stone products, it appears that the broader language of the Carpenters contract more nearly covers the work involved herein. 4. Efficiency, economy, integration of operations, skills, safety, availability of workers There is nothing in the record to indicate that the employees represented by the competing unions cannot perform the disputed work with equal skill and safety. The Employer, however, strongly favors an award to its employees who are represented by Carpenters for reasons of efficiency, economy, inte- gration of operations, the greater availability of carpenters, and continuity of its work force. The evidence shows that the Carpenters wage rate is substantially lower than that provided in the Bricklay- ers contract, and that the Carpenters work rules are less restrictive than those of Bricklayers. The Employ- er's president testified that Lembke began hiring carpenters as soon as work on the Skyline project first began and had employed 18 carpenters when the disputed work was assigned, but no bricklayers had yet been employed at the project. Thus, the Employer was able to utilize carpenters who were already familiar with the construction project, and did not have to -lay off any carpenters in order to hire bricklayers. The Employer's president ' also testified that greater efficiency and flexibility was achieved by using carpenters to perform the work in question, since it was possible to reassign carpenters to perform other work on the project, whenever the disputed work was halted. In addition, the Employer testified that in its experience, carpenters were generally more available than were bricklayers. This testimony, however, was countered by Bricklayers who presented evidence that the availability or shortage of employ- ees in all crafts depended largely upon the amount of construction going on in the area at any given time. Although the evidence regarding the relative availa- bility, skill, and safety of employees represented by the competing unions is inconclusive, it is clear that the wage rates of carpenters are lower and that their work rules are less restrictive. In addition, the evidence demonstrates that the assignment, of the disputed work to carpenters results in greater efficien- cy on the job and a more stable work force since carpenters, unlike bricklayers, are utilized by the Employer for other work on the construction project. 5. Joint Board determinations Respondent contends that the National Joint Board determinations favor awarding the disputed work to it. Thus, Respondent placed in evidence a number of Joint Board decisions arising from disputes between Bricklayers and various other unions in the Denver area and in other parts of the United States. Most of these Joint Board awards were made in 1970 and 1971 although a few are dated in 1968 and 1969. The Employer contends that these awards have no bearing upon the issue at hand because they refer to only a few employers in a few States; there is no evidence that the work there involved is completely comparable to that herein; the Employer was not party to any of these disputes and the Carpenters was not a party to many of them; and, the Joint Board's decisions fail to give any reasons for the awards. We find merit in the Employer's contention. Although we have considered National Joint Board awards a factor in determining the proper assignment of disputed work, we find that the awards submitted in evidence by Respondent are neither binding on the Employer nor determinative of area or national practice. Conclusions Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that Lembke's employees who are represent- ed by Carpenters are entitled to the work in dispute. We reach this conclusion upon the Employer's assignment of the disputed work to its employees, the fact that the assignment is consistent with the Employer's past practice and its current bargaining agreement with Carpenters, the fact that it is not clearly inconsistent with the area practice, the fact that the employees represented by Carpenters possess the requisite skills to perform the work, and the fact that such assignment will result in greater efficiency, economy, and continuity of operations. Accordingly, we shall determine the dispute before us by awarding the work in dispute at the Employer's Skyline project in Denver, Colorado, to those employees represented by Carpenters, but not to that Union or its members. In consequence, we also find that the Bricklayers is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to assign the disputed work to employees represented by it. The Employer, in its brief, requests that the Board's with Laborers and with Ironworkers each of which might be said to cover the work here in dispute, neither union has made direct demand for the work. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD award be extended to cover all future erection and installation of prestress and precast concrete of structural nature to be performed by the Employer in the geographical jurisdiction of the Carpenters Union. The Employer argues that the many similar disputes which Bricklayers has referred to the National Joint Board demonstrate that the instant dispute is part of a continuing jurisdictional dispute between the two unions and that, therefore, a strong possibility exists that similar disputes will occur in the future. Although the Board need not restrict its award to a single job if there is evidence that similar disputes will occur in the future,14 we conclude that a broad award is not clearly justified by the evidence herein. Thus, the record is not clear with respect to future operations of the Employer, nor is it clear with respect to future activities of the parties involved. Therefore, we will limit our award only to the project presently under consideration. 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 hereby makes the following determination of the dispute: 1. Employees of Lembke Construction Company of Colorado, Inc., who are represented by Carpenters District Council of Denver and Vicinity, are entitled to perform the work of erecting and installing of precast concrete panels, including balcony railings at the Employer's Skyline Park Apartments project in Denver, Colorado. 2. Bricklayers, Masons and Plasterers' Interna- tional Union of America, Local No. 1, AFL-CIO, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Lembke Construction Company of Colorado, Inc., to assign the above work to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Bricklayers, Masons and Plasterers' International Union of America, Local No. 1, AFL-CIO, shall notify the Regional Director for Region 27, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by Bricklayers, rather than to employees represented by Carpenters. MEMBER FANNING, dissenting: I cannot agree with the majority that the Board's 14 Lathers Union Local 104, The Wood Wire and Metal Lathers International Union, AFL-CIO (Associated General Contractors of America, etc - The Blaine Petty Company), 186 NLRB No 70, Plumbers & decision in Paul Jensen, Inc., supra, was incorrectly decided. Contrary to the majority, I do not find it "inconsistent with our traditional interpretation of Section 10(k)" or in conflict with "basic principles of contract law." In Section 10(k) Congress directed the Board to encourage the parties to resolve their jurisdictional disputes through private arbitration. This is in sharp contrast to Section 10(a) which provides that the Board's authority as to other unfair labor practices should be exercised whether or not another forum, such as arbitration, exists. Despite this statutory language, a Board majority in the recent Collyer case (192 NLRB No. 150) required the parties to resolve their 8(a)(5) dispute through arbitration. In the instant case, where the statutory language encour- ages the use of arbitration, a majority of the Board insists that a 10(k), 8(b)(4)(D) dispute must be resolved by this Board. It seems to me that the forum of arbitration should be entitled to the same esteem in a jurisdictional dispute case where Congress directed that it be preferred to Government intervention as it is in a refusal-to-bargain case where the statutory instruction is to the contrary. There is no interpreta- tion of Section 10(k) by this Board or any court which is inconsistent with this view and the majority cites no authority for such a conclusion. Nor do I find any rule of contract law which would free this Employer,from his contractual commitment to these two unions. Clearly, the Bricklayers, and the Carpenters, the principal parties to this work assignment dispute, are and at all times have been bound to the Joint Board. In a tri-partite undertaking the Employer agreed to be similarly bound. -Necessarily, the agreement of each was consideration for the agreement of the others. The Employer has enjoyed the full benefit of these labor agreements, which included his promise to be bound by Joint Board decisions. Both unions were entitled to, and did, rely on this contractual commit- ment. It is therefore, in my opinion, too late for this Employer to argue that his promise is not a promise at this time because the Joint Board was reorganized and reformed after a hiatus. Under accepted contract law where the duty of a party is discharged by the failure of a condition to exist he is again subject to that duty if he permits continued performance of the contract without notice to the other party that he desires modification of the contract. Restatement of the Law of Contracts, vol. 1, ch. 10, § 309. For these reasons I believe the Jensen decision was correctly decided and I would adhere to it. Accord- ingly, I would quash the notice of hearing. Steamfitters Local Union No 189, etc (P. W Wander, Inc), 176 NLRB No 129, and cases cited at fn 10