Plumbers Local 393 (Hall-Way Contracting Co.)

644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 393, United Association of Journey- men and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO and Hall-Way Contracting Company, Inc. and Construction & General Laborers Union Local No. 270, Laborers International Union of North America, AFL-CIO. Case 20-CD-493 September 30, 1977 DECISION AND DETERMINATION OF DISPUTE This is a proceeding pursuant to Section 1qk) of the National Labor Relations Act, as amended, following the filing of a charge on May 21, 1976, by Hall-Way Contracting Company, Inc. (hereafter the Employer), alleging that Local Union No. 393, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (hereafter the Plumbers or Local 393), has violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activities with the object of forcing or requiring the Employer to assign the disputed work to employees represented by Local 393 rather than to employees represented by Construction & General Laborers Union Local No. 270, Laborers Interna- tional Union of North America, AFL-CIO (hereafter the Laborers or Local 270). Pursuant to notice, a hearing was conducted before Hearing Officer Lawrence W. Hanson on July 14 and 15 and October 20 and 21, 1976. All parties appeared at the hearing and were afforded a full opportunity to be heard and to present evidence bearing on the issues. 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.' Upon the basis of the entire record in this case, including the briefs, the Board makes the following: I. THE BUSINESS OF THE EMPLOYER The Employer is a member of the Landscape, Sprinkler and Irrigation Contractors Association, located in Walnut Creek, California. The Association represents approximately 100 employers for purposes of collective bargaining who are engaged in the installation of sprinklers and irrigation systems and in landscape contracting. Evidence was presented ' The Hearing Officer denied the Employer's motion lo quash the subpoena duce.~ recum sewed by Local 270 on the ground that the requested ~nformation regarding the type of jobs performed by the Employer s~nce that one member of the Association, Watkins and Bartolussi, received in excess of $50,000 in revenw for a project performed outside the State of Califor- nia. The Employer herein performs work for various landscape and paving contractors. Its gross volurnc of business per annum is approximately $480,000. On the basis of these facts in evidence, we find that thc Hall-Way Contracting Company, Inc., is an employ- er 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. 11. THE LABOR ORGANIZATIONS INVOLVED All parties stipulated, and we find, that Local 393 and Local 270 are labor organizations within the meaning of Section 2(5) of the Act. 111. PRELIMINARY ISSUES The hearing was adjourned on July 15, 1976, to allow Local 270 to file with the Board an interim appeal of the Hearing Officer's ruling which preclud- ed Local 270 from raising the issue of Local 393's alleged racial discrimination on the ground that the issue was irrelevant in a lO(k) proceeding. It was Local 270's position, in light of N.L. RB. v. Mansion House Center Management Corp., 473 F.2d 471 (C.A. 8, 1973), and Bekins Moving & Storage Co. of Florida, Inc., 211 NLRB 138 (1974), that the disputed work could not he awarded to a labor organization, its members, or the employees whom it represents if that labor organization discriminates on the basis of race or national origin. On July 30, 1976, the Board (then Chairman Murphy and then Member Fanning dissenting) granted Local 270's appeal, ruling that evidence of racial discrimination by Local 393 "may be relevant and material to the right of the members of Local 393 to be awarded the work in dispute." The hearing resumed on October 20 and 2 1, 1976. We have reconsidered our prior ruling which granted Local 270's appeal in light of two recent decisions: Handy Andy, Inc., 228 NLRB 447 (1977), in which we overruled Bekim and enumerated the reasons why we believe that the Board is not constitutionally required to consider issues raised by an objection grounded on alleged invidious discrirni- nation prior to issuance of a Board certification of representative; and Bell & Howell Company, 230 NLRB 420 (1977), wherein.we held that the Board is not proscribed from ordering an employer to bargain with a labor organization because of the latter's alleged discriminatory practices. For the reasons set 1963 and classification of employees and employee hours on each job was relevant to the determination of the d~spute. No appeal was taken to this rulmg. 232 NLRB No. 83 L 0 C . a UNION NO. 393, PLUMBERS 645 j I ~ I in those decisions and below, we find that c I( nce regarding such alleged discrimination is not 1 > ~ n t to a determination of a work dispute I 11'1n.t to Section 8(b)(4)(D) and Section 1C)(k) c?f 1 , \ct. I II o:~r view. we are neither constitutior?allv nor . < , . I I 1 1 rorily required to consider sach evl.cence i~ sllch , I l(.cedings. A review of Sections 8(bj(4)(Dj and !or A) may be helpful in understanding why evidence r ~liscrimination is i n a ~ ~ r o ~ r i a t e In such ~roceed- 1 1 1 1 ' 1 , - Whenever it is charged that any person has 11:'.12ed in an unfair iabor practice within the ,~,.;~ning cf Section 8@)(4)@), the appropriate Ir,.clc;nai 3irenior investicaies the charge and. if it u - 11i:c;~;' :ix charge has rnerir 2nd chi. narties have ps; 1 :iced upon methods for the vo!untary adjustment oi l l l i , dispute out of which the charge has arisen, the - li~yonal Directcr series on the parties a notice of 1 ~f.<~i-ing under Secii~n 1-3&j oT the Act. A" L tne ' close . '! rhe hearing, the proceeding is transferred :a the l{lwx! which issues a decision and determination of , Il\pute awarding the work to the appropriate group 1 1 cmployees. If, after this deternunation, the parties - - 11l3mit satisfactory evidence to the Regional ~irector ildicating they have complied with the determina- I I O : ~ , rhe charge is dismissed. If no satisfactory ..\ ~dence of compliance is submitted. the Regional ; ;~r.ector ~niisi proceed wiih the charge uader Section ,:i bb(4)(D).' 'The st~tutory pumose c? Sections 8(b)(4)(D) and i oik) is tc ensure that work disputes between two or I llwe peps of employees are permanently and . . c,.. pediriuusiy settled.Vkt the outset then :i 1s i lnportant to note thlt an w a r d of work is made to a LI'OUP of employees and ~lot to the labor organization \viiich represenrs them.4 In a dispute berween two sroups of employees, each represented by a union, tsur detmxination of dispute specifically states ihat i he work is awsrded to those e$oyees represented hy one of the unions, but no: io that union or its ~nembers. Thus. allegations thar 2 union discrimi- mtes are noi relevant under Sections 8(b)(4)(D) acd iO(k), since ihe work is amriied to the emp!oyees rhemselves, not to the union which may represent [hem. In oui. view, the Board is not constituiionally i-equired to consider allegations of unlawful discrimi- nation a: eirher :he lO(kj or 8(b)(4)(D) stage, since Board's Ru!es and Regulations. Senes 8. 2s amended. Sec. 102.89, et '~'9. See NL.R.B. v. Radio and Telnrsron Broudcasr Ettgineers Union, b c a i i2iL lniernuiional Srorherhood of Elecrrical Workers. AFGCIO [Colrrmbia Rroadcasring S,~rrrnj, 364 U S . 573 (196i ). + icdeed. where the en~ployees c o n h u e to claim the work in dispute in [he face of a d~sclaimer by their labor organimtion, ti:< Iztter's disclaimer is Ignored and !he Board determines the jurisdictional dispute. Stage Ernplqvees Local One. I/! TSE. A FI-ClO (Rh'O General. WOR-TV Division rind WGR-?i'E~igrnerrs/. 219 NLRE I i65. ! i68 (l975,i. we do not believe that a sufficientlv close riexus is , established between our action in awarding the work to the employeeb and the alleged discriminztion b;, their representative to establish that, in making the award, the Government is authorizing, supporting, or participating in the complained of discriminatory practises d :he Unioz.5 Aithcugh awarding the work !n dispute to employees represented by z un~cin may inure to the benefit of that uruon, the award does not place the Board imprimatur on all the orgahization's activities, lawful or otherwise. A jurisdicticnal award is based on certain factors indicating which group of employees is best equipped to do the work;6 it does not reflect the Board's a ~ ~ r o v a i of al! zsDecTs of 1 1 representation by the labor organizaticn which represents the favored employees. The Supreme Court clearly defined our obligation in CBS, supra at 586, "it is the Board's responsibility and duty to 3 . aecide ydiich cf two cr more emp!ciyez group; claizing the right to perf~i-m certain work tasks is right and then s~ecificallv to award such tasks in V 1 , accordance with its decision." Such an award, in our view, cannot be considered to authorize, require, enforce, or foster and encourage a labor organization to discriminate.7 Sections lo*) and 8(b)(4)(D) set up a method adopted by Congress to "try to get jurisdictions! dispures settled" ir! order "to solve the knotty problems of wasteful work stoppages due to such disputes."s If we stray from this congressionai mandate in order to consider an issue appropridy considered under another section, clearly we would vioiate the spirit of Congress' intent. In finding that the expedited procedures for determining disputes do not provide the appropriate forum for consideration of invidious discrimination by a labor organization in the representation of employees, we are not depriving any party from raising this issue. We are mereiy finding that such issues should be considered in the appropriate proceeding, as set forth be!ow. If we were to refuse to award work to a group of empioyees on the ground that the union which represents them has engaged i ~ . or is engaging in unlawful discrimination, we would directly penalize those cmployees, but only indirectly reach the discriminating labor organization. Such an indirec: method of preventing ilnIa-dul discr?mina;ion is not only inefficient, it is unnecessary, since the issue of See Had,v Andy, sura. In making such awards, the Board considers al! relevant factors ic determining who is entitled to the work in dispute; e.g., the ski!ls and work involved, certifications by the Board, cnrnpany and industry practice. the efficient ooeration of the busmess. rtc. (Inrernarional Associalion o f ~ochinisrs,'hd~e hro. 17743, AFLCIG (J. 4 . ones Coralruclion conYan:% 135 NLRB 1402 (1962).) See Handy Andy and Bell & iiowell, both supm, and the relevant cases cited therein. V B S , sapra. -- ' NATIONAL' invidious discrimination can be directly addressed by statutorily prescribed methods-designed to eliminate the offensive practices without hanning the employ- ees. -The union's status as exclusive representative imposes on it the statutory obligation to represent all employees in the unit fairly and in good faith. Tfie right of employees to be free from invidious discrimination in the representation afforded them by their bargaining representative is protected by the Act which, it has been held, makes it an unlawful labor practice for the representative to engage in such practices and provides employees with remedies against such conduct.9 In giving labor organizations their right to represent employees, the Act also confers upon such organizations certain obligations. As set forth in a multitude of cases,1° in the event that a bargaining representative discriminates in such a way as to frustrate the right of employees to fair representation, Section 8@)(1)(A) provides a reme- dy; if the union sponsors discriminatory hiring practices, Section 8@)(2) provides a remedy; if one of the parties refuses to negotiate about the elimina- tion of offensive discriminatory terms and conditions of employment, Section 8@)(3) or Section 8(a)(5) provides a remedy. (See Bell & Howell.) Thus, a party who is foreclosed from asserting unlawful discrimina- tion in the lo@) and 8@)(4)(D) proceedings, never- theless has available alternative proceedings under the Act in which to seek an appropriate remedy. To whatever extent the practices of invidious discrimina- tion may be beyond the Board's reach, Congress has provided other remedies, e.g., the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e), and the Labor Management Reporting and Disclosure Act of 1959 (73 Stat. 419), whereby the victims of such unlawful activity may seek legal redress. For the foregoing reasons, we shall not consider the evidence represented to be alleged discrimination by Local 393 as it has no bearing on our determination as to which group of employees is entitled to perform the work." IV. EVIDENCE A. The Work in Dispute The work in dispute involves the digging, grading, backfilling, and general ground preparation work involved in the installation of sprinkler irrigation pipe systems by the Hall-Way Contracting Compa- - Bell & Howell, supro. ID See, e.g. Vaca v. Sipes. 386 U.S 171 (1%7); Independent Metal Workers Union, Local No. I (Hughes T d Company), I47 NLRB 1573 (I%+ I n r e r ~ t r o ~ I Brotherhood of Painters and Allied Trades, h a 1 Union 1066. AFLCIO (W. I. Siebenoller Jr., Painf Company), 205 NLRB 651 (1973); h a 1 No. 106, Gloss Boffle Blowers Associafion, AFL-CIO (Owem-Illin&, Inc.), 210 NLRB 943 (1974). enfd. 520 F.2d 693 (C.A 6, 1975). irrigation sprinkler systems was described by the Employer's president to include: The reading, laying out of the plans, the staking out of job. By that I mean, physically going out and marking where the sprinkler heads are going to be placed, marking out the trench to be dug, digging the trench, installing the pipe, installing the low voltage wire if any and the controller, and g a trench, putting on the heads and other things. In addition to ground preparation work,-the work in dispute fits into this basic procedure anytime hand digging work is necessary to ensure the proper installation of pipe. For example, depending on the size of the pipe to be installed, an operating engineer will dig either a 6- or 8-inch-wide trench. However, the trench diameter may not be large enough to accommodate a sprinkler head, valve, or other protuberance coming from the pipe. Accordingly, a "notch" is made by excavating the dirt so that the larger mechanism will fit. Just prior to the actual laying of the pipe in the trench, hand digging work is also necessary to ensure that the trench is clean and free of any debris from other construction work wbich is going on in the same site. Other examples where hand "pick and shovel work" is necessary are: (1) when a "tie-in" is made to hook up the existing water supply line which will service the sprinklers; (2) excavating underneath galvanized pipe to form a "bell hole" so that a pipe wrench can be used to tighten or loosen the pipe; (3) digging "coved corners" to ensure that a sprinkler head near a wall or building will be "straight and flush"; and (4) during final inspection in the event, to name a few In tight of our dec~aon, we find it unnecessary to consider Local 270's contention, argued at the hearing but not pursued in its brief to the Board. that an employer which is found to discriminate is precluded from availing itselfof the Board's unfair labor practice proceedings. on a job at overCelt Drive ~ducational Park which the Employer had assigned to plumbers. The Em- ployer placed laborers on the job and removed plumbers. Because the job did not last a long time, "- sibilities, that rocks, dirt, or other backfilling clog system, or where a "dry spot" is created by a mn'&aled electrical box necessitating installing mother sprinkler head, or where there is a leaky WGe. Prior to 1969, the Employer utilized crews consist- tng of operating engineers who ran the trench- digging machines, laborers who "notched" trenches and did other "pick and shovel" work, and journey- man plumbers who installed the pipe. With the advent of the Landscape, Sprinkler and Imgation Contractors Association in 1969, which provided that irrigation plumbers shall perform all facets of irrigation sprinkler systems, the Employer has used only plumbers and operating engineers to do the work, except, as discussed below, in a few instances where the laborers have asserted a claim to do the work. Beginning in 1972, plumbers helpers (appren- tices or assistant journeymen, as they are sometimes called) have been allowed to help install pipe in Santa Clara County, as long as a journeyman is present on the jobsite. A typical crew now consists of four plumbers in the following categories: journey- man, assistant journeyman, and plumber tradesman who primarily do hand digging work and generally assist in the operations; an operating engineer is still used to run the trench-digging machines. Prior to the instant proceeding, the Laborers has asserted claims to digging and backfiing work for imgation sprinkler installation on at least two other occasions. In August 1975, the Laborers, through its business agent, Jack Delgado, claimed that plumbers should not perform digging and backfilling work on the Casa Arnigos job. In response to statements to the effect that the Laborers would not let any work continue, the Employer replaced plumbers with laborers. After the Employer continued to use laborers, Plumbers threatened to picket if plumbers were not again assigned to the job. At this juncture, the Employer filed a charge with the Board. However, at the hearing in November 1975, Laborers apparently disclaimed the work, so that the Employ- er used only plumbers again. In March 1976, Local 270 claimed the right of laborers to perform the work ihe Employer continued using the laborers on ihe job gt Evergreen Highlands. At this juncture, Local 393 l2 This cla~m completely overlooks the fact that the instant proceeding concerns charges which the Employer brought against Local 393 because of 11s acbons to efiect a reassignment of the d~sputed work. l3 It should be noted that the bnef submitted on behalf of Local 270 overlooks several facts in evidence: (1) although Local 270 claimed that the Employer only ass~gned the work to employees represented by Local 393 In 1976 as a result of threatened ~ o b action, the record shows that slnce 1969 threatened to picket. The laborers, hired plumbers, an instant proceeding. mployer claims that Local 393 violated Section 8(b)(4)(D) of the Act by threatening to picket the Employer at the Evergreen Highlands model home tract in May 1976. On the baqjs of prior assignments, efficiency and economy of operations, and the skills involved, the Employer asserts that the plumbers should be awarded the work. The Employ- er also contends that there is no agreed-upon voluntary method for adjudicating the dispute. Local 393, in agreement with the Employer's position, adds that area practice supports an assign- ment of the disputed work to employees represented by it. In this regard, Local 393 cites the fact that the master agreement and appendix between the Plumb- ers local unions and the Bay Area Landscape, Sprinkler and Imgation Contractors Association expressly covers the work. Local 270 contends that there is no dispute cognizable under Section lo@) of the Act because it did not take any steps to force a reassignment of the work.12 In the alternative, Local 270 claims that the disputed work should be awarded to employees represented by it on the basis of employer assign- ment, the laborers collective-bargaining agreement, economy and efficiency of operations, and skills. Futhermore, Local 270 argues that it is not a labor organization, but that, even if it were, the notice of hearing should be quashed because the Northern California District of Hod Camers, Building and Construction Laborers had not been joined as a necessary ~d indispensable party.13 D. Applicability of the Statute Before the Board may proceed with a deterrnina- tion of the dispute pursuant to Section lo@) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8@)(4)(D) has been violated. It is undisputed that on May 20, 1976, the business agent for Local 393 threatened to picket the Employer at its Evergreen Highlands jobsite due to the fact that the Employer had assigned the work to laborers and not to plumbers. The Employer had assigned the work to laborers because of Local 270's prior threats and grievance over the use of plumbers the Employer has assigned the work to plumbers, except when Laborers has threatened job actions; (2) Local 393 did, m fact, introduce a collective- bargaining agreement covering the work in dispute; and (3) on October 20, 1976, at the hearing. the parties shppulated that Local 270 was a labor organization w i t h the meaning of the Acr We also fmd no merit to Local 270's claim that there has been a failure to join a necessary and indispensable party. 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the Overfelt Drive Educational Park project. Local 393's business agent stated that the job action would be carried out if the plumbers were not immediately reinstated to do the work. Accordingly, and as the record reveals that there is no agreed-upon method for the voluntary settlement of the dispute, we find that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated and that the dispute is properly before the Board for determina- tion under Section 10(k) of the Act. E. Merits of the Dispute Section lo@) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to various relevant factors. As the Board has stated, the determination in a jurisdictional dispute case is an act of judgment based on commonsense and experience in weighing these factors. We find the following factors are relevant in making a determination of the dispute before us. 1. Board certification No Board certification covering any party to this proceeding or the work in dispute was offered in evidence. 2. The collective-bargaining agreements As previously discussed, the Employer is signatory to both the Plumbers and the Laborers master collective-bargaining agreements. Upon examination of each of the respective agreements in evidence, we find that each agreement arguably covers the disputed work, and therefore the factor of collective- bargaining agreements does not favor an award of work to employees represented by either Local 270 or Local 393, and consequently it is not helpful in the determination of this dispute. 3. Employer and industry practice Since 1969, the Employer has assigned the work in dispute to employees represented by the Plumbers, except on two occasions, as noted previously, where the Laborers had threatened a job action or filed a grievance. The record reveals that employees repre- sented by the Plumbers would have been assigned initially to perform the disputed work at the Evergreen Highlands project had the Laborers not previously pressed a grievance over the use of plumbers at the Overfelt Drive Educational Park project. A business agent for the Plumbers testified that Local 393 maintains a special pool of irrigation sprinkler fitters and that these workers perform the disputed work in the course of their installation work. Local 270 did not present any evidence regarding area practice, On the basis of the record evidence, the factor of employer and area practice favors an award of work to employees represented by the Plumbers. 4. Economy and efficiency of operations The Employer testified that it is more efficient for plumbers to perform the disputed work particularly since the installation of an imgation sprinkler system requires the coordination of pipe-laying and hand digging work. It was uncontradicted that, when laborers were used on the Casa Arnigos project, productivity, measured by the number of sprinkler heads installed per day, fell from the plumbers average of 30 sprinkler heads to 20 a day. The Employer asserts that with the use of plumber tradesmen, who not only perform digging and backfilling work but also handle pipe, it is far more efficient to assign the work to plumber tradesmen than to laborers who can perform only digging work. The factor of economy and efficiency of skill favors the Employer's assignment of the disputed work to employees represented by the Plumbers. 5. Relative skills and knowledge While the record does not show that plumbers possess greater slulls than laborers for digging and backfilling work, the Employer testified that plumb- ers have greater knowledge of the requirements for certain phases of the work, such as digging "notches" for sprinkler heads. The Employer also asserted that knowledge of pipe specifications and the sprinkler system's requirements is important during the actual laying of the pipe, inspection, or emergency situa- tions where hand digging becomes necessary to ensure proper installation. In this light, we find that this factor favors the Employer's assignment to employees represented by the Plumbers. Upon the record as a whole and after full consideration of all the relevant factors involved, we conclude that the employees represented by Plumb- ers Local 393 are entitled to perform the work in dispute. We reach this conclusion upon the facts that the assignment is consistent with the Employer's preference and past practice; that it is not inconsis- tent with the agreements of the parties and is in accord with area practice; that the employees initially assigned to do the work who are represented by the Plumbers possess certain knowledge which those represented by the Laborers do not; and that the Employer's assignment to employees represented LOCAL UNION NO. 393, PLUMBERS 649 by the Plumbers will result in greater efficiency and economy of operations. Accordingly, we shall determine the dispute before us by awarding the work in dispute to employees represented by Local Union No. 393, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, but not to that Union or its members. Our present determination is limited to the particular controversy which gave rise to this proceeding. DETERMINATION OF DISPUTE Pursuant to Section 1qk) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entlre record in this proceeding, the National Labor Relations Board makes the following Determination of Dispute: Employees represented by Local Union No. 393, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, are entitled to perform the digging, grading, backfilling, and general ground preparation work involved in the installation of sprinkler irrigation p~pe systems by Hall-Way Contracting Company, Inc., at its Evergreen High- lands project. MEMBER JENKINS, dissenting: Contrary to my colleagues, I find that evidence of ~nvidious discrimination by a labor organization is a relevant consideration is making an award of work prsuant to a jurisdictional dispute and therefore I must dissent from their conclusion that evidence of \uch discrimination is inadmissible in a 1qk) proceeding for the purpose of disqualifying a union Irom claiming the work. In my view, an award of work, like a certification of representative, is govern- mental action which must withstand strict scrutiny to cnsure that it is not a vehicle for "sanctioning and 1 ndeed furthering" a labor organization's discrimina- lory practices. The due process clause of the fifth .I mendment bars such governmental participation in lliscriminatory practices. The Board cannot ignore I he existence of such constitutional commands by the .I r-gument that no final order is reviewable by a court Iwes in 10(k) proceedings: for the fact is such ~wceedings furnish a basis for an almost routine I\suance of a cease-and-desist order under Section s( h)(4)(D) of the Act. By making an award of work, the Board confers k.pccial benefits on a labor organization, and the ,ill-oup of employees it represents. An immediate dlect is that the employees represented by the labor 1 brganization get to perform the work which tends to Iwrease their allegiance to the union, and to add to the power of that union and those it represents because they have or control access to jobs. By such an award, the Board is in effect designating the labor organization with whom the employer must deal regarding the terms and conditions of employment for its employees, because an award of work is a precursor to collective-bargaining obligations on the part of both the employer and the union. A union may also use an award of work &y the Board to establish prior claims to the work in any subsequent disputes. Since an award of work establishes access to work. to jobs, there is a direct nexus between the ~oard's action and a labor organization's discriminatory practices, because a labor organization, or the group of employees it represents, may control individual employees' access to those jobs. If a labor organiza- tion precludes certain groups of employees from working, through membership qualifications, or representational, referral, or other practices, then an award of work perpetuates the exclusion of whole groups of employees from access to jobs because of invidious considerations. Thus, not only is the Board confemng its imprimatur on a labor organization which discriminates, but it also is actlng as a direct vehicle for perpetuating the discriminatory practices by legitimizing the labor organization's right to control access to the work. My colleagues' argument that the work is awardeli to a group of employees rather than to a labo: organization is unpersuasive. The practical effec~ where a group of employees is represented by s union is to give their labor organization the right to claim and control the work. Equally unpersuasive is the majority's argument that racial discrimination need not be considered ir, malung jurisdictional dispute awards because nc, order results from the award at ths stage, and. because of the lack of an order, it cannot be said the Government is authorizing, supporting, or participat- ing in the discriminatory practices. However, :he award is merely the first of a two-stage process, ~ I L which the Board will issue an order if the loser of the award fails to abide by it. To argue that the two-step process insulates the Government from participation or support is rather like arguing that state laws requiring recording of racial covenants in deeds are constitutional because it is only the subsequent individual enforcement or application of the coven- ants which effects the discrimination. The Supreme Court has, of course, held the opposite. Shelley v. Kraemer, 334 U.S. 1 (1 948). I am also unpersuaded by my colleagues' argument that the introduction of such evidence will de!ay a 1w) proceeding, the primary goal of which is an expeditious settlement of a jurisdictional dispute. i -4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD do not believe that administrative efficiency can ever serve as a legitimate excuse for the Board's failure to adhere to the Constitution or to the requirements of fair representatives. Nor do I find much merit in the majority's predictions of administrative delay. If allegations of discrimination are well founded, supportive evidence must be in existence at the time of the hearing. It will not take the Board long, in view of its well-established expertise, to sift out the substantive claims from the frivolous. Where a party seeks to introduce evidence after the close of the hearing, our customary procedural rules covering "newly discovered or discoverable" evidence will apply. Moreover, in hearings pursuant to Section 10(~) of the Act, evidence is introduced on a variety of factors which the Board must consider in nl.1 h I I its determination of dispute. The introducl~o~) ' evidence of invidious discrimination will no I I I , delay the administrative process than the inr l-t M l I I , tion of evidence as to area practice, econom). , 1 1 1 ~ efficiency of operations, or relative slulls, to I ~ ; I I I I V few. The far more fundamental question is whethc~ I 1 ) ' Board can allow itself to engage in governlllcl~l i action which sanctions, furthers, and in fact P ; I I I I ~ I pates in invidious discrimination prohibited h! 1 1 : ' Constitution. I believe that it cannot and fintl 1 1 1 the principles established by my colleagues t o h \ . I 1 contrary to the Constitution and existing i:cJt.l law.