Operating Engineers Local 3

726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Operating Engineers Local Union No. 3, International Union of Operating Engineers, AFL-CIO and Hansen's, Incorporated. Case 20-CD-308 October 12, 1972 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On July 20, 1971, the National Labor Relations Board issued a Decision and Order I in the above- entitled proceeding, finding that Respondent had vio- lated Section 8(b)(4)(D) of the National Labor Rela- tions Act, as amended, by picketing Hansen's, Inc., with an object of compelling Hansen's to assign cer- tain work to employees represented by Respondent rather than to employees represented by Pipe Trades District Council No. 36 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (herein called the Pipefitters), and ordering that Respondent cease and desist therefrom and take certain affirmative action to remedy such unfair labor practices. Thereafter, on March 2, 1972, the General Coun- sel filed a motion to reopen the record for the purpose of taking additional evidence, moving that the Board reopen this proceeding for the limited purpose of tak- ing additional evidence with respect to whether there was in existence, at relevant times and under prevail- ing Board law, an agreed-upon method for voluntary adjustment of any jurisdictional dispute involved in the instant case. On March 16, 1972, the Board issued an order denying the General Counsel's motion as raising nothing warranting the reopening of the rec- ord. Thereafter, on April 6, 1972, the General Coun- sel, Respondent, and the Charging Party jointly moved the Board to reconsider its order and, in order to provide a more appropriate record for its Decision and Order in this proceeding, to reopen this proceed- ing for the limited purpose of taking additional evi- dence with respect to whether there was in existence, at relevant times and under prevailing Board law, an agreed-upon method of voluntary adjustment of any jurisdictional dispute involved in the instant case. On May 31, 1972, the Board issued an Order granting the joint motion for reconsideration, reopening the rec- ord, and directing that a further hearing be held be- fore an Administrative Law Judge 2 for the limited 1 192 NLRB No. 28. 2 The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. purpose set forth in the joint motion for reconsidera- tion. On June 26, 1972, the parties to this proceeding entered into a stipulation of facts and filed a motion to transfer the proceeding to the Board. They agreed that the stipulation of facts, including the exhibits attached thereto, constitutes the entire supplemental record in this proceeding; waived a supplemental hearing before and the making of supplemental find- ings of fact and conclusions of law by an Administra- tive Law Judge, and the issuance of an Administrative Law Judge's supplemental decision and recom- mended order; and submitted the case directly to the Board for supplemental findings of fact, conclusions of law, and order. By order of the Board dated July 6, 1972, the joint motion to transfer the proceeding to the Board was granted, the proceeding was transferred to the Board, the stipulation of the parties was approved, and permission was granted to the parties to file briefs. Thereafter, the General Counsel and Respon- dent filed briefs with the Board. 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 au- thority in this proceeding to a three-member panel. Upon the basis of the stipulation, the briefs, and the entire supplemental record in this proceeding, the ,Board makes the following supplemental findings: On April 3, 1970, the National Joint Board for the Settlement of Jurisdictional Disputes (herein called the "new" Joint Board) I was established pur- suant to an agreement between the Building and Con- struction Trades Department, AFL-CIO, and various contractors' associations, entitled "Plan for Settling Jurisdictional Disputes Nationally and Locally." As the international unions with which Respondent and the Pipefitters are affiliated are members of or affiliat- ed with the Building and Construction Trades De- partment, Respondent and the Pipefitters are parties to this agreement and, accordingly, are bound to sub- mit any jurisdictional disputes to the "new" Joint Board for settlement. On July 27, 1970, the Charging Party's general counsel and secretary sent a telegram to the "new" Joint Board, stating that a work stoppage had oc- curred when the Charging Party refused Re- spondent's demand that the operation of forklifts be assigned to its members. It has been stipulated, and we find, that the purpose of this telegram was to sub- 3 The National Joint Board for the Settlement of Jurisdictional Disputes referred to in the Charging Party's contracts with Respondent and the Pipe- fitters (herein called the "old" Joint Board) had expired on September 30, 1969 Between October 31, 1969, and February 28, 1970, jurisdictional dis- putes were handled through National Joint Board procedures under an inter- im agreement between the Building and Construction Trades Department, AFL-CIO, and certain contractors' associations. 199 NLRB No. 105 OPERATING ENGINEERS LOCAL 3 727 mit the jurisdictional dispute to the "new" Joint Board for resolution. The Joint Board sent a letter to the International Union of Operating Engineers, re- questing that Respondent's members return to work immediately and that any jurisdictional dispute be processed in accordance with the procedural rules of the Joint Board . Respondent informed the Joint Board that it was not demanding the work, but only seeking payment for its members in accordance with its contract with the Charging Party. On July 31, 1970, the Joint Board sent a copy of Respondent's letter to the International Union of Operating Engineers for such action as it deemed advisable . No further action has been taken by the Joint Board with respect to the dispute herein. In our prior decision in this case, we found that an agreed-upon method for settlement of the dispute existed because the Employer's contracts with Re- spondent and the Pipefitters required the submission of any jurisdictional disputes to the "old" Joint Board. Subsequently, in Bricklayers, Masons and Plas- terers' International Union of America, Local No. 1, AFL-CIO (Lembke Construction Company of Colora- do, Inc.), 194 NLRB No. 98, we held that such con- tractual provisions, entered into while the "old" Joint Board was still in existence, only bound the parties to submit jurisdictional disputes to that Joint Board, and not to any Joint Board which might subsequently be created. We have made it clear, however, that a differ- ent result would be reached where , after the estab- lishment of the "new" Joint Board , the parties demonstrated their intent to be bound by its deci- sions.4 In the instant case, it has been stipulated that Respondent and the Pipefitters , by virtue of their in- ternational unions' membership in the Building and Construction Trades Department, were bound to sub- mit any jurisdictional disputes arising on or after April 3, 1970, to the "new" Joint Board . In addition, it is clear that the Employer, by actually invoking the procedures of the "new" Joint Board with respect to the dispute, likewise agreed to be bound by the deci- sion of the Joint Board.' Accordingly, we find that, under prevailing Board law as set forth in Lembke, supra, the "new" Joint Board constituted an agreed- upon method for adjustment of the dispute herein. As the utilization of the agreed-upon method failed to produce an adjustment of the dispute , the issuance of a complaint under Section 8(b)(4)(D) of the Act with- out a prior hearing and determination under Section 10(k) was proper.6 We shall therefore reaffirm the unfair labor practice findings and the remedy provid- ed therefor in the original Decision and Order herein. SUPPLEMENTAL ORDER In view of the foregoing, and on the basis of the supplemental record as a whole , the National Labor Relations Board hereby reaffirms its Order issued July 20, 1971, in this proceeding. ° Cf Marble Mason, Terrazzo Workers and Tile Layers Subordinate Union No 3 of Kansas, City, Bricklayers, Mason and Plasters International Union of America, AFL-CIO (Winn -Senter Construction Company), 194 NLRB No. 74. ' Winn-Senter Construction Co, supra, Local Union No. 1, Sheet Metal Workers International Association, AFL, 114 NLRB 924, 930 6 Wood, Wire and Metal Lathers International Union and its Local Union No. 2, AFL-CIO (Acoustical Contractors Association of Cleveland), 119 NLRB 1345, 1351.