Local 423, Laborers

450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 423, Laborers' International Union of North America, AFL-CIO and V & C Brickcleaning Co. and Bricklayers and Allied Masonry Trades, Local 55, Bricklayers, Mason and Plasterers International Union. Case 9-CD-251 September 29, 1972 tional standards for both direct sales and purchases. Accordingly we find, as the parties have stipulated, that the Employer is 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 DECISION AND ORDER QUASHING NOTICE OF HEARING BY MEMBERS FANNING, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by V & C Brickcleaning Co., herein called V & C, on February 15, 1972, alleging that Local 423, Laborers' International Union of North America, AFL-CIO, herein called Laborers, had vio- lated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with the object of forcing V & C to assign certain work to Laborers rather than employees represented by Bricklayers and Allied Ma- sonry Trades, Local 55, Bricklayers, Mason and Plas- terers International Union, herein called Bricklayers. Pursuant to notice, a hearing was held before Hearing Officer Bruce E. Pence on May 3, 1972, in Columbus, Ohio. All parties appeared at the hearing t and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The Bricklayers there- after filed a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its ru- thority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hear- ing 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 V & C, an Ohio partnership whose principal place of business is Marysville, Ohio, is a contractor engaged in the building and construction industry. During a 12-month representative period, V & C performed services in excess of $20,000 for customers located outside the State of Ohio; during this same period V & C performed services valued in excess of $50,000 for Ohio firms who in turn meet the jurisdic- 1 The attorney for Laborers left the hearing shortly after his motion, that the hearing be dismissed because of the Laborers disclaimer of the disputed work, was overruled by the Hearing Officer. The parties stipulated, and we find, that Laborers and Bricklayers 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 is the use of a long-handled scraper to scrape and clean brick and concrete block at the Ohio State University School of Dentistry con- struction site, Columbus, Ohio. B. Background and Facts of the Dispute Knowlton Construction Company is the general contractor on a job now in progress at the Ohio State University School of Dentistry construction site in Columbus, Ohio. V & C is a subcontractor for cleaning, scraping, pointing, and caulking block and brick walls. It began work on the project in November 1971. At that time V & C assigned its work to its own employees, who are bricklayers represented by Brick- layers with whom V & C has a contract. V & C has no contract with the Laborers. Shortly after V & C began work on the project, a Laborers steward approached two of V & C's brick- layers, Jerry Chaney and Donald Cooper, and told them that Laborers would walk off the job if the bricklayers continued using long-handled scrapers to scrape excess mortar off the brick and block walls. Also, Laborers Business Agent John Gore and Labor- ers Manager John Scales told Chaney that the long- handled scraper was a Laborers tool, and continued use by bricklayers would cause Laborers to pull their men off the job. Lewis Colvin, a partner in V & C, was notified of this and advised Knowlton of Laborers threat. Knowlton then told Colvin to cease doing the contested work until the dispute could be settled. V & C's bricklayers were pulled off all cleaning and scrap- ing work but continued pointing and caulking opera- tions. The collective-bargaining agreement signed by the Bricklayers and V & C assigns the work of cleaning all masonry to the Bricklayers. There is no evidence in the record that the Laborers, by contract or custom, have ever been assigned the work in dis- 199 NLRB No. 48 LOCAL 423, LABORERS 451 pute. This collective-bargaining agreement also pro- vides for the submission of all jurisdictional disputes between the Bricklayers and any other unions affiliat- ed with Building and Construction Trades Depart- ment, AFL-CIO,2 to the National Joint Board for the Settlement of Jurisdictional Disputes of the Building and Construction Trades Industry, herein called the Joint Board. At the hearing the attorney for the Bricklayers advised the Hearing Officer that he had, on February 23, 1972, addressed a letter to the chairman of the National Joint Board advising him of the current dis- pute and requesting that the Joint Board consider the case. However, there is no evidence that the Joint Board has taken any action on this case. C. Contentions of the Parties At the outset of the hearing, the attorney for the Laborers informed the Hearing Officer that the La- borers now disclaimed the work in question . He then moved that the hearing be dismissed. The Hearing Officer overruled his motion and the attorney shortly thereafter left. Both V & C and the Bricklayers argue that the work in dispute should be retained by V & C's brick- layers. Reasons given include efficiency , economy, and past practice . As far as the problem of the Joint Board's jurisdiction is concerned, the Bricklayers posthearing brief argues that none of the parties to this dispute have agreed to be bound by a Joint Board deci- sion. The Bricklayers February 23 letter to the Joint Board was merely a notification of the existence of a dispute, and not an intention to be bound by any deci- sion of the Joint Board. As for the Employer, the Brick- layers brief points out that the Employer never joined in the letter to the Joint Board or ever agreed to be bound by the Joint Board in any way. And as for the Laborers, the Bricklayers notes that the Laborers is in noncompli- ance with the Joint Board and hence is not bound by any decision of the Joint Board. D. Applicability of the Statute Before the Board may proceed to the determina- tion 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 un- necessary 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 deter- mination of the Joint Board. The present Joint Board was created on April 3, 1970, pursuant to an agreement between Building and Construction Trades Department, AFL-CIO, and Participating Contractors Employers' Associations. Sometime later, the agreement between V & C and the Bricklayers was signed, expressly providing for Joint Board settlement of all jurisdictional disputes be- tween the Bricklayers and any other union affiliated with Building and Construction Trades Department, AFL-CIO. In view of the foregoing, we find that both the Employer and the Bricklayers have agreed to be bound by a determination of the Joint Board. The Laborers Union is formally affiliated with Building and Construction Trades Department, AFL-CIO, a signatory to the April 3, 1970, agreement reconstituting the Joint Board. We therefore find that the Laborers also has agreed to be bound by a deter- mination of the Joint Board. The fact that the Labor- ers may be in a position of noncompliance with past Joint Board determinations is immaterial for the pur- poses of this proceeding. Winn-Senter Construction Company, 194 NLRB No. 74. Our dissenting colleague would decline to quash the notice of hearing, because he believes that a speedy resolution of the instant dispute pursuant to the agreed-upon method, i.e., the Joint Board, is un- likely. However, the thrust of Section 10(k) of the Act is to forbid the Board to settle the jurisdictional dis- pute only upon a showing of a method agreed upon by the parties of settling the dispute, not upon a fur- ther showing that the agreed-upon method will be expeditious. Here, there is such an agreed-upon meth- od of settling jurisdictional disputes, the Joint Board; we are required to defer to that method. If we retained jurisdiction in this case, the stat- utory purpose to encourage the voluntary settlement of jurisdictional disputes would be frustrated in that a party receiving an adverse decision from the agreed- upon tribunal for settling its jurisdictional dispute would be encouraged to ignore such decision, lapse into noncompliance, and then come before this Board for a more favorable resolution of the dispute. Our dissenting colleague relies on Bricklayers & Stonemasons Union Local No. 3 of Arizona (Concrete Erection), 195 NLRB No. 32, and Plumbers and Pipe- fitters Local No. 32 (Tacoma Chapter of the Associated General Contractors of America, Inc.), 191 NLRB No. 193, as authority for the proposition that the Board should not quash a notice of hearing when one of the parties is in a noncompliance status with past Joint Board decisions. However, in both of these cases, the basic reason for not quashing was the fact that the employer was not bound by Joint Board decisions. Accordingly, we shall quash the notice of hearing issued herein. 2 The Laborers is so affiliated. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER It is hereby ordered that the notice of hearing issued in this proceeding be, and it hereby is, quashed. MEMBER KENNEDY, dissenting: Unlike my colleagues, I would not quash the no- tice of hearing in this proceeding . In my opinion, Section 10(k) of the Act permits the Board not to hear and determine the dispute only where the methods agreed upon by the parties are likely to effectively resolve the jurisdictional controversy . For the follow- ing reasons, I believe a fair, speedy, and efficacious resolution of the instant dispute is unlikely. Although Laborers, through its affiliation with the Building and Construction Trades Department of the AFL-CIO, is a signatory to the agreement re- constituting the Joint Board, it has been declared by that body to be in noncompliance with previous awards against its trade. Under the rules and regula- tions of the Joint Board, so long as Laborers remains in noncompliance status "no decision in any case de- cided in favor of [Laborers] shall be issued." Also, while it is in noncompliance, Laborers is not entitled to a representative on the Joint Board. This, of course, means that even though Laborers would be entitled to an award in its favor on the merits, the instant jurisdictional dispute could not be finally resolved by the Joint Board, if at all, unless and until Laborers complied with awards against it in oth- er, unrelated cases. Such needless delay places an un- fair burden on both V & C and Bricklayers and, in my opinion, is inconsistent with the congressional pur- pose expressed in Sections 8(b)(4)(D), 10(k), and 10(1) of the Act to provide a rapid solution to jurisdictional disputes which interfere with the free flow of com- merce. Moreover, Laborers is essentially removed from all involvement with Joint Board proceedings while it is in noncompliance . This raises serious questions about the fairness and regularity of the Joint Board decision-making process, especially where the work is not awarded to the noncomplying union, albeit in no circumstances could a union with a representative on the Joint Board participate in a case involving itself. See Spielberg Manufacturing Co., 112 NLRB 1080. Finally, the majority asserts that it is "immateri- al" that Laborers is in noncompliance status . And yet, on several recent occasions this Board has relied, in part, upon such noncompliance to conclude that no effective method for the voluntary adjustment of the dispute existed. See, e.g., Bricklayers & Stonemasons Union Local No. 3 of Arizona (Concrete Erection), 195 NLRB No. 32 ; Plumbers and Pipefitters Local No. 32 (Tacoma Chapter of the Associated General Contractors of America, Inc.), 191 NLRB No. 103 . Since I believe those and similar cases were correctly decided, and because in my opinion the Joint Board is not likely to effectively resolve the instant jurisdictional dispute, I would not quash the notice of hearing in this proceed- ing. I would hear and determine the dispute pursuant to the mandate of Section 10(k).