Ironworkers District Council Of The Pacific North-West And International Association Of Bridge, Structural And Ornamental Iron Workers, Afl-Cio, Local 751

570 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Ironworkers District Council of the Pacific North- west and International Association of Bridge, Structural and Ornamental Iron Workers, AFL- CIO, Local 751 and Hoffman Construction Company and Contract Glass, Inc and Interna- tional Brotherhood of Painters and Allied Trades, AFL-CIO, Local 1140 Case 19-CD- 434 March 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On July 26, 1985, Administrative Law Judge Burton Litvak issued the attached decision The Respondent Unions filed exceptions and a support ing brief, and Employer Hoffman Construction Company filed an answering brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,' findings, 2 and conclusions, only to the extent consistent with this Decision and Order 3 1 The judge found that the Respondents, Iron- workers District Council and Ironworkers Local 751, violated Section 8(b)(4)(ii)(D) by filing and maintaining a grievance against the Employer, Hoffman Construction Company (Hoffman) The facts are undisputed Hoffman, a general contractor in the building and construction indus- try, is signatory to a multiemployer collective-bar- ' The judge relied inter aha on the Board s rulings in the underlying 10(k) decision in rejecting the Respondents contentions that the instant matter is moot because the disputed work has already been completed and that the grievance issue discussed below should be deferred to the arbitration procedure of the collective bargaining agreement between Employer Hoffman and the Respondents In Longshoremen ILWU Local 6 (Golden Grain) 289 NLRB 1 ( 1988) the Board recently reconsidered what issues raised in a 10(k) proceeding it will permit to be relitigated in a subsequent 8(b)(4)(D) proceeding The Board specified that it would continue to prohibit the relitigation of threshold matters that are not nec essary to prove an 8(b)(4)(D) violation Whether complaint allegations are moot because the disputed work concerning which the alleged mis conduct arose has been completed or whether a grievance concerning the disputed work should be resolved by arbitration are both threshold mat ters That is they concern whether the proceeding is properly before the Board for disposition not whether a violation of Sec 8(b)(4)(D) has been committed We therefore adopt the judge s findings that the Board s conclusions on these two issues in the 10(k) proceeding are binding 2 We adopt the judge s finding that Respondent Iron Workers Local 751 violated Sec 8(b)(4)(ii)(D) by threatening to picket Contract Glass Inc when an object of the picketing was to force Contract Glass to assign the disputed work described below to employees the Respondent Local represented rather than employees represented by the International Brotherhood of Painters and Allied Trades AFL-CIO Local 1140 (the Glaziers) 9 The amended Order includes a provision omitted by the judge re quinng Respondent Iron Workers Local 751 to sign copies of the notices for posting by the Employer if willing gaining agreement with the International Iron- workers, on behalf of the Ironworkers' locals Hoffman subcontracted to Contract Glass, Inc (Contract) the disputed work, i e , the installation of aluminum window frames and entrance doors and other miscellaneous metal work at the SOHIO Alaska Petroleum building construction project, which work was to begin in March 1983 Contract employs members of the International Brotherhood of Painters and Allied Trades, AFL-CIO, Local 1140 (the Glaziers), with which it has a collective- bargaining agreement After making several unsuccessful demands for the disputed work and threatening to picket, the Respondents jointly filed a contractual grievance against Hoffman seeking monetary damages for an alleged violation of the subcontracting article However, after Region 19 held its 10(k) hearing in the underlying proceeding, the arbitrator of the grievance, Thomas Levak, issued a decision on No- vember 11, concluding that "the pendency of this case before the NLRB renders this case procedur- ally nonarbitrable at the present time " He, accord- ingly, reserved any ruling on the merits until the 10(k) proceeding was resolved, specifying that "[a]t such time the Arbitrator will reopen this case on the motion of either party " On December 14 the Board issued its Decision and Determination of Dispute awarding the disputed work to the em ployees represented by the Glaziers 4 The Re- spondents have neither made a motion to reopen the arbitration nor withdrawn their grievance In addressing the allegation that filing and main- taining the grievance violated Section 8(b)(4)(ii)(D), the judge followed then applicable precedent that dictated that a grievance for time-in- lieu payments amounts to a coercive demand for the reassignment of work, thereby violating the Act 5 In a case involving a dispute in the construction industry, however, the Board has recently reexam- ined its policy of finding that grievances in pursuit of time-in-lieu payments constitute proscribed eco- nomic coercion within the meaning of Section 8(b)(4)(D) Thus, on facts very similar to those in the instant case, the Board found in Carpenters Local 33 (Blount Bros),6 that a contractual claim for "in lieu of' pay against the contractor that had controlled the work and subcontracted it to a com pany that then assigned the work to employees not represented by the signatory union did not amount 4 273 NLRB 260 (1984) 6 E g Pulp & Paper Workers Local 194 (Georgia Pacific) 267 NLRB 26 (1983) Millwrights Local 102 (Frederick Meiswinkel) 260 NLRB 972 (1982) 6 289 NLRB 1482 (1988) 293 NLRB No 60 IRON WORKERS LOCAL 751 (HOFFMAN CONSTRUCTION) to unlawful coercion The Board reasoned that such a contract action against the contractor did not affect the subcontractor's assignment of work and, therefore, would not conflict with the Board's 10(k) award The Respondents' pursuit of their grievance here is factually no different According- ly, we find that the Respondents' contract action was not unlawful coercion under Section 8(b)(4)(ii)(D) and dismiss this allegation 2 The judge further found that the Respondents' failure to notify the Regional Director for Region 19 in writing that they would comply with the Board's 10(k) determination also violated Section 8(b)(4)(n)(D) In making this finding, the judge relied on then-controlling precedent finding that a respondent in a 10(k) proceeding must provide actual performance of all the requirements of a 10(k) determination , including such written notice 8 This precedent was recently overruled in Golden Grain, supra at fn 3, in which the Board found that a failure to provide written notice of compli ance does not amount to an independent basis for a violation of Section 8(b)(4)(D) but merely triggers the issuance of a complaint In view of that deci Sion, we dismiss this allegation ORDER The National Labor Relations Board orders that the Respondent, International Association of 7 In his analysis of this issue the judge rejected the Respondents con tention that it was privileged to pursue the grievance because their griev ance was not inconsistent with the Board s 10(k) determination In reject mg this contention the judge applied the rule of Carey I, Westinghouse 375 U S 261 (1963) that Board jurisdictional rulings take precedence over arbitration decisions on the same issue We note that in Blount Bros the Board found Carey inapposite because Carey involved a situation in which the Board s and the arbitrator s decisions could conflict i e when the employer against which the grievance was filed was also the employ er that made the assignment Carey is similarly inapplicable here because Contract not Hoffman made the work assignment The judge also applied the rule of Carey to reject the Respondents contention that judicial enforcement of an arbitrators decision contrary to the Board s 10(k) determination would be privileged by Bill Johnson s Restaurants v NLRB 461 U S 731 (1983) We agree with the judge that findings on this issue would appear to be premature However in view of our finding that the pursuit of the grievance does not amount to un lawful coercion we disagree with the judge that such an action would lack a reasonable basis in both law and fact such that protection from injunction pursuant to Bill Johnson s would not be available See Long shoremen IL WU Local 7 (Georgia Pacific) 291 NLRB 89 93 (1988) Chairman Stephens notes that because this is a construction industry case in which the pursuit of the grievance represented simply the en forcement of a signatory subcontracting clause-a type of clause that comes within the construction industry proviso to Sec 8(e) of the Act- there is no inconsistency with our recent decision in Longshoremen ILWU Local 7 (Georgia Pacific) supra in which the Board held that a union vio lated Sec 8(b)(4)(D) of the Act by filing or pursuing time in lieu gnev ances after the issuance of a 10(k) determination awarding the work to employees other than those represented by the respondent union That case involved a dispute in an industry in which there can be no valid contractual provision purporting to bind an employer as to its contracting decisions in the manner allowed in the proviso to Sec 8(e) 6 E g Longshoremen ILWU Local 7 (Georgia Pacific) 273 NLRB 363 (1984) Longshoremen ILWU Local 62-B (Alaska Timber) 271 NLRB 1291 (1984) 571 Bridge, Structural and Ornamental Iron Workers, AFL-CIO, Local 751, Anchorage, Alaska, its offi- cers, agents, and representatives, shall 1 Cease and desist from threatening to picket with an object of forcing or requiring Contract Glass, Inc to assign to employees it represents, rather than to employees represented by the Gla ziers, the work of the installation and preparation of certain metal frames for glass and the installation of glass into metal frames at the SOHIO Alaska Petroleum building construction project in Anchor- age, Alaska 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Post at its office and meeting halls in Anchor age, Alaska, copies of the attached notice marked "Appendix "9 Copies of the notice, on forms pro vided by the Regional Director for Region 19, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customari- ly posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not al tered, defaced, or covered by any other material (b) Furnish the Regional Director for Region 19 with signed copies of such notice for posting by the Employer, if willing, in places where notices to employees are customarily posted (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 9 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT threaten to picket with an object of forcing or requiring Contract Glass, Inc to assign to employees whom we represent rather than to employees represented by the International Brotherhood of Painters and Allied Trades, AFL- CIO, Local 1140, the work of the installation and 572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD preparation of certain metal frames for glass and the installation of glass into metal frames for glass at the SOHIO Alaska Petroleum building construe tion project in Anchorage, Alaska INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNA- MENTAL IRON WORKERS , AFL-CIO, LOCAL 751 Daniel R Sanders Esq, for the General Counsel Lester V Smith Esq (Bullard Korshoj Smith & Jern stedt), of Portland, Oregon, for the Respondents Paul D Supton Esq (Van Bourg Weinberg Roger & Ro senfeld) of San Francisco, California for the Respond ents DECISION STATEMENT OF THE CASE BURTON LITVACK, Administrative Law Judge This matter was heard by me on May 29, 1985, in Portland, Oregon On January 15, 1985, the Regional Director for Region 19 of the National Labor Relations Board (the Board) issued a complaint, based on an unfair labor prac tice charge filed by Hoffman Construction Company (Hoffman) on July 17 1984 alleging that Ironworkers District Council of the Pacific Northwest (Respondent District Council) and International Association of Bridge, Structural and Ornamental Iron Workers, AFL- CIO, Local 751 (Respondent Local) engaged in unfair labor practices violative of Section 8(b)(4)(i) and (u)(D) of the National Labor Relations Act (the Act) Respond ent District Council and Respondent Local each filed an answer, denying the commission of any unfair labor practices At the hearing all parties were afforded the opportunity to examine and cross examine all witnesses, to offer any and all relevant evidence to argue their legal positions orally, and to file posthearing briefs, all of which have been carefully considered Accordingly based on the entire record here,' including the aforemen tioned beefs and my observation of the demeanor of the witness, Wayne Thomas I make the following FINDING OF FACT I JURISDICTION Hoffman is a State of Oregon corporation, with an office and place of business in Portland, Oregon, where it is engaged in the business of general contracting in the building and construction industry During the 12 month ' G C Exh 2 is the transcript of the underlying jurisdictional dispute hearing involving these parties Analysis of the transcript discloses as conceded by counsel for the Respondents that Respondents counsel at the earlier hearing had ample opportunity to cross examine every wit ness exercising his right to do so in some instances Accordingly Re spondents counsel in this proceeding expressed no concern with me rely mg on the testimony of witnesses at the 10(k) hearing from the facts here notwithstanding that with the exception of Wayne Thomas I had no op portunity to observe their testimonial demeanor It is noted in these cir cumstances that the witnesses testimonies were uncontroverted period preceding the issuance of the complaint here which period is representative of all times material, in the course and conduct of its aforementioned business operations, Hoffman purchased and caused to be trans ferred and delivered to its facilities within the State of Oregon goods and materials valued in excess of $50,000 directly from sources outside the State Contract Glass, Inc (Contract) is a State of Washington corporation, with an office and place of business in Redmond Wash ington, where it is engaged in the business of commercial glazing During the 12 month period preceding the issu ance of the instant complaint which period is representa live of all times material, during the course and conduct of its business operations, Contract sold and shipped or provided services valued in excess of $50,000 directly to customers located outside the State of Washington II LABOR ORGANIZATIONS Respondent District Council and Respondent Local each is, and has been at all times material, a labor organs zation within the meaning of Section 2(5) of the Act International Brotherhood of Painters and Allied Trades, AFL-CIO, Local 1140 (the Glaziers), is and has been at all times material a labor organization within the mean ing of Section 2(5) of the Act III THE ISSUES Did Respondent District Council and Respondent Local violate Section 8(b)(4)(i) and (u)(D) of the Act by engaging in the following conduct (a) Threatening to picket Hoffman unless certain work was assigned to members of Respondent Local rather than to members of the Glaziers (b) Seeking the disputed work through resort to the grievance and arbitration procedure of their collective bargaining agreement with the National Contractors As sociation (NCA) (c) Failing and refusing to comply with the Board s resolution of the underlying jurisdictional dispute report ed at 273 NLRB 260 (1984) 2 IV THE ALLEGED UNFAIR LABOR PRACTICES A The Facts The record establishes that Hoffman is engaged in business as a general contractor in the building and con struction industry that commencing in March 1983, it became engaged in the construction of a 13 story office building for the SOHIO Alaska Petroleum Company in Anchorage, Alaska, that Hoffman is an employer/mem her of the NCA, and that pursuant to the membership, it is bound to the existing collective bargaining agreement between the International Association of Bridge Struc tural and Ornamental Iron Workers AFL-CIO on behalf of its constituent local unions including Respond ent Local, and the NCA To perform the work of install ing aluminum window frames and entrance doors and other miscellaneous metal work on the SOHIO Petrole um building Hoffman awarded a subcontract to Con 2 Unless otherwise stated all events occurred in 1984 IRON WORKERS LOCAL 751 (HOFFMAN CONSTRUCTION) tract which utilizes employees who are members of and represented by the Glaziers with which Contract has a collective bargaining agreement The record further es tablishes that Contract utilizing a system of its own design, prefabricated much of the window assembly work and shipped said materials to the jobsite from its plant in the State of Washington Contract was sched uled to commence its work at the building project in early March, and the aforementioned material shipments arrived there between March 12 and 15 Ernie Niece, the field superintendent for Contract testified that on the day the prefabricated materials arrived, an individual, who was later identified as the job steward for Respond ent Local approached him at the construction site and asked if the materials belonged to Contract Niece said yes, and the steward asked if Contracts own employees would do the installation work Niece again said yes Thereupon he told me it was Iron Workers work, and I told him no, it s Glaziers work ' The steward started to walk away, turned to Niece, and said, Well, we could throw a sign on you "3 Wayne Thomas, the labor relations manager for Hoff man, testified that the earliest indication he received re garding a problem over the installation of the window frames at the SOHIO Petroleum building project by Contracts glazier employees was during a telephone conversation with John Abshire, the business manager of Respondent Local, which is located in Anchorage Ac cording to Thomas Abshire questioned the subcontract award to Contract Glass and had a concern about the Glaziers performing what he called Ironworkers work Shortly thereafter, on March 14, Thomas received a tele gram from Abshire, stating that he had been informed that employees of Contract, who were represented by the Glaziers, would be installing the metal windows on the SOHIO Petroleum building that he had been unable to arrange a meeting with representatives of Contract and that it is imperative that Hoffman take immedi ate action to resolve this issue Days later Thomas re ceived a telephone call from Leroy Worley the presi dent of Respondent District Council which encompasses Ironworkers local unions in Oregon, Washington, and Alaska during which the latter reiterated what had been said by Abshire Subsequently Thomas received a letter dated March 30, from Worley stating that a contractual grievance would be filed against Hoffman seeking mone tary compensation for Iron Workers based on the fla grant' subcontracting of their traditional work 4 Appar ently shortly after the sending of this letter, Respondent District Council and Respondent Local jointly filed a contractual grievance against Hoffman, alleging a viola tion of the subcontracting article and seeking monetary damages Thomas testified further that, on May 15, while he was away from his office, a telephone message was received and recorded by a switchboard operator The Niece assumed he was going to try to throw a picket sign on us * By letter dated April 3 Thomas replied to Worley stating that Hoff man questioned the arbitrability of the grievance as Contract has no col lective bargaining agreement with the Iron Workers and any arbitration award would not be binding on it He further stated his belief that the matter actually involved a jurisdictional dispute and that Hoffman would cooperate with the Iron Workers on that basis 573 message, General Counsels Exhibit 6 reads will picket thurs AM 19th All N W sites-Pickets will say failure to process grievances of Ironworkers Thomas returned to his office and telephoned Worley Testifying at the 10(k) hearing the witness recalled Worley saying that he just wanted to get my attention that Mr Van Bourg had told him that unless we were to arbitrate this matter, our work would be shut down in the north west As to the telephone call of the day before, He said he made the call ' Testifying during the instant hearing, Thomas stated, Mr Worley said that it was he that left a message at the office for and he said he wanted to get my attention, and that he did want to see to it that we proceed to arbitration immediately to re solve this matter Finally Thomas admitted that Worley made no threat of picketing during the conversa tion, rather he confirmed sending the message Regarding the invocation of their contractual gnev ance and arbitration procedure by Respondent District Council and Respondent Local, Hoffman at all times contested the arbitrability of the instant dispute, arguing that it was jurisdictional in nature 5 Adhering to this po sition, Hoffman filed the instant charge on July 17 Meanwhile, the arbitration process continued and the hearing on the Respondents grievances was held before Arbitrator Thomas F Levak on August 28 in Portland Concurrently, acting on Hoffman s unfair labor practice allegations Region 19 of the Board issued a notice of hearing and, pursuant to Section 10(k) of the Act prior to the decision of Arbitrator Levak, the underlying juns dictional dispute hearing was held on September 5 in Anchorage Subsequent to that hearing Arbitrator Levak issued his decision on November 11, concluding that the pendency of the 10(k) proceeding before the NLRB renders this case procedurally nonarbitrable at the present time " Accordingly, he expressed no view on the merits of the Respondents contractual grievance, reserv ing any ruling until the NLRB either determines that a 10(k) determination is inappropriate or until the NLRB actually issues a 10(k) determination or should the employer withdraw its unfair labor practice charge At such time as any of those events occur, the Arbitrator will reopen this case upon the motion of either party Approximately 1 month later, on December 14 the Board issued its Decision and Determination of Dispute, reported at 273 NLRB 260 in the underlying matter finding and concluding that there was reasonable cause to believe that a jurisdictional dispute existed over the installation of metal window frames and glass into the frames at the SOHIO building construction project in Anchorage and that employees represented by [the Gla ziers] are entitled to perform the work in dispute Ac 5 Hoffman s attorneys asserted this position in letters to the attorney for the Respondents both prior to and at the arbitration hearing The po scion of the Respondents remained consistent- this is not a jurisdiction al dispute We have not asked that any workers be assigned to work or that any workers be taken off work In this regard it is noted that as a remedy for their grievance the Respondents sought monetary damages based on what ironworkers employed by Hoffman would have earned had they been utilized to perform the aluminum window frame installa tion work at the SOHIO building project for the alleged contract viola tion 574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cordingly, the Board ruled that Respondent District Council and Respondent Local are not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force [contract] to assign the disputed work to employ ees represented by it and ordered that the Respondnets each shall notify the Regional Director for Region 19 in writing whether it will refrain from forcing [Hoffman or Contract], by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination On December 26 the compliance officer of Region 19 sent a letter to the attorney for the Respondents, con firming a conversation between them in which the attor ney stated that a letter, conforming to the order of the Board, would not be forthcoming because as the Re spondents had engaged in no conduct proscribed by Sec tion 8(b)(4)(D) of the Act On this point at the hearing the Respondents counsel conceded that we re here today because we didn t write a letter back to the Region As to the work of installing alumimum window frames and glass at the SOHIO Petroleum building project and as to the arbitrators decision, the record dis closes that neither Respondent has made any effort to reopen the arbitration proceeding and that the installa tion work was completed by December Finally the record also discloses that Contract has never had a col lective bargaining agreement with the Iron Workers and that its agreement with the Glaziers contains no method for the voluntary resolution of jurisdictional disputes B Analysis Based on the allegations of the complaint counsel for the General Counsel contends that Respondent District Council and Respondent Local acted in violation of Sec tion 8(b)(4)(i) and (ii)(D) of the Act by threatening Hoff man with picketing unless Contract assigned the disputed work to employees represented by the Iron Workers rather than to those represented by the Glaziers by processing a contractual grievance against Hoffman with the grievance having the effect of forcing such an assign ment, and by failing and refusing to notify the Board in writing, of its intent to comply with the underlying 10(k) determination Initially I note that It is settled that issues raised and litigated in a 10(k) proceeding may not be relitigated in a subsequent unfair labor practice pro ceeding, alleging violations of Section 8(b)(4)(D) which are based in part on factual determinations made in the 10(k) proceeding Longshoremen ILWU Local 7 (Geor gia Pacific) 273 NLRB 363, 366 (1984) Iron Workers Local 433 (Plaza Glass), 218 NLRB 848, 849 (1975) enfd 549 F 2d 634 (9th Cir 1977) Teamsters Local 445 (Blount Bros), 197 NLRB 46, 51 (1972) In urging dismissal of the complaint allegations, counsel for the Respondents first asserts that the instant matter is moot as the alums num window frame installation work was completed 6 months prior to the instant hearing and there is no evi dence before [me] of a likehood of recurrence Contrary to counsel, in its underlying 10(k) determination the Board concluded that glazing contractors will continue to install the type of work in dispute in the future in the Anchorage area and that the Respondent will continue to assert jurisdiction over the work involved There is a real likelihood, therefore, that similar disputes will arise in the future 273 NLRB at 262 Accordingly, as the Board previously ruled on this point, I find no meet in the Respondents first defense Counsel next contends that neither prior to nor suse quent to the 10(k) hearing did either Respondent engage in any conduct violative of Section 8(b)(4)(D) of the Act In this regard, Section 8(b)(4)(D) of the Act's makes it an unfair labor practice for a union to threaten, coerce or restrain any person engaged in commerce where an object is `forcing or requiring any employer to assign particular work to employees in a particular labor organization rather than to employees in another labor organization There can be no question that the Respondents demanded the work of installing alums num window frames and the glass in said frames at the SOHIO Petroleum building project be done by members of the Iron Workers rather than by members of the Gla ziers Thus, the job steward for Respondent Local ap proached Contracts field superintendent on the jobsite and, having it confirmed that Contract's employees, who are represented by the Glaziers, would do the installation work, claimed that such was Iron Workers' work The Board has long held, of course, that a job steward acts as an agent of a union, binding the latter by his conduct Tri State Building Trades Council (Backmen Sheet Metal), 272 NLRB 8 (1984) Electrical Workers IBEW Local 3 (Western Electric), 141 NLRB 888, 893 (1963), enfd 339 F 2d 145 (2d Cir 1964) Further John Abshire, the bus[ ness manager of Respondent Local, spoke to Wayne Thomas, the labor relations manager for Hoffman ques tioning the subcontracting award to Contract and ex pressing his concern that members of the Glaziers would be performing ironworkers work Finally shortly there after, Leroy Worley, the president of Respondent Dis trict Council, telephoned Thomas and reiterated what Abshire had previously said There can equally be no question that a threat of picketing was uttered in support of the demands Thus although not specifically alleged in the complaint as conduct violative of the Act but as relied on by the Board in the underlying 10(k) decision as a basis for concluding there was reasonable cause to believe the Act had been violated, after stating the Iron Workers claim for the disputed work, the Iron Workers job steward warned Contracts field superintendent, We could throw a sign on you a statement understood by the latter to be a threat of picketing The testimony of Niece, the field superintendent, was uncontroverted and the Board attributed the threat uttered by the steward to Respondent Local I find that, by this conduct Respond ent Local acted in violation of Section 8(b)(4)(ii)(D) of the Act Teamsters Local 528 (National Homes) 255 NLRB 208 210 (1981) Turning to the conduct involving Hoffman, notwith standing that such would be an indirect means of forcing a reassignment of the disputed work it is clear as found by the Board in the underlying 10(k) decision, that any such activity would be cognizable under Section 6 Analysis of the record discloses no conduct within the meaning of Sec 8(b)(4)(i) and I shall recommend dismissal of all allegations in that regard IRON WORKERS LOCAL 751 (HOFFMAN CONSTRUCTION) 8(b)(4)(D) of the Act Electrical Workers IBEW Local 3, supra at 894 The complaint alleges that the Respond ent s filing and maintenance of a contractual grievance against Hoffman was violative of the Act Initially I be lieve that such constituted nothing less than a means of obtaining the installation of the aluminum window frame and glass installation work Thus, Worley the president of Respondent District Council, stated in his March 30 letter to Thomas, that the grievance involved the sub contracting of Iron Workers traditional work Further, the remedy, which was sought by the Respondents, would have reimbursed the Respondent Local members for what they would have earned had they, and not the employees of Contract who are members of the Glaziers, been given the disputed work In these circumstances, the grievance could have served but one purpose-to induce Hoffman, which had no control over the disputed work, to place pressure on Contract to reassign the work to Iron Workers members Viewed in this light, the meaning of Abshire's statement, in his March 14 tele gram to Thomas- it is imperative that Hoffman take immediate action to resolve this issue," becomes ob vious The Board, in its 10(k) decision, stated, that the filing of grievances, as here, against employers who have no control over the assignment of the work (i e , Hoff man) applies indirect pressure on an employer in the as signment of the work, Pulp & Paper Workers Local 194 (Georgia Pacific), 267 NLRB 26 (1983), and is coercive within the meaning of Section 8(b)(4)(u) Millwrights Local 102 (Frederick Meiswinkel Inc) 260 NLRB 972 (1982) 273 NLRB at 262 Accordingly, I find that the filing and processing of the contractual grievance against Hoffman by Respondent District Council and by Re spondent Local was, and is, violative of Section 8(b)(4)(ii)(D) of the Act Longshoremen ILWU Local 7, supra at 363, Millwrights Local 102 (Meiswinkel Interiors) 260 NLRB 972, 974 (1982) Notwithstanding this finding I do not believe that Worley s confirmation to Thomas, on May 15, that he was the individual who, on the previ ous day, left the telephone message for the latter in which a picketing threat was made was likewise viola tive of the Act Thus, I note that the Board although finding in the underlying 10(k) decision that Worley left that message and later confirmed doing so, placed no re liance on this occurrence in determining whether there was reasonable cause to believe a violation of the Act ex isted in this matter Further Worley s comments to Thomas indicate that whatever he said was not meant to be construed by Thomas as a threat of picketing but rather as a sign of his Worley s impatience that the con tractual grievance had not yet been scheduled for arbi tration This is so as Thomas admitted that the former's words were, he said he wanted to get my attention, and that he did want to see to it that we proceed to arbitra tion immediately ' Therefore although he obviously left a message containing a threat of picketing , it is clear that Worley intended such to be construed by Thomas as a gesture of impatience, and I believe that Thomas under stood this Accordingly I shall recommend that para graph 7 of the complaint be dismissed With regard to the arbitration of the grievance, coun sel for the Respondent argued that, citing United Tech 575 nologies Corp, 268 NLRB 557 (1984), the Board should defer resolution of this matter to the grievance and arbi tration procedure of the contract between the Respond ents and Hoffman My difficulty with this contention is that Contract has no collective bargaining agreement with the Iron Workers and was not a party to the instant arbitration In ruling on the same assertion in its underly ing 10(k) determination , the Board stated , Inasmuch as Contract is not a party to the collective bargaining agreement between Iron Workers and Hoffman and has not agreed to be bound by it, we find that there is no agreed on method for resolution of the dispute and we decline to defer to the grievance arbitration machinery of that agreement 273 NLRB at 2627 The prior deter mination of the Board is binding on this issue, and I find no merit to this argument Woodworkers Local 3 90 (Crown Zellerbach), 261 NLRB 615 (1982), Stage Employ ees IATSE (Metromedia), 225 NLRB 785, 788 (1976) Counsel next asserts that the Supreme Court s decision in W R Grace & Co v Rubber Workers Local 759, 461 US 757 (1983), is controlling on my decision in this matter There, the employer signed a conciliation agree ment with the EEOC relating to allegations of discnmi nation against blacks and women in the operation of the seniority system of its contract with the union Subse quently, individuals, who were adversely affected by the agreement, filed grievance, seeking monetary damages, pursuant to the grievance, arbitration procedure of the contract and an arbitrator ruled that some of the griev ances were meritorious The employer then filed a law suit in the Federal courts to overturn the arbitration awards Finding that the employer was the wrongdoer and that the above dilemma, resulting from contrary de cisions, was one of its own making the Court concluded that it could not say the arbitrator had wrongly inter preted the parties collective bargaining agreement, that the arbitrators decision was not contrary to public policy and that, therefore the arbitration awards should take precedence Asserting the broad nature of the de cision counsel contends that there is nothing inconsistent between the Respondents grievance for breach of the contractual subcontracting clause and the Boards 10(k) determination and that Hoffman should be required to abide by any arbitration award here Contrary to the ar guments of counsel I believe that the instant matter is distinguishable from the Court s W R Grace & Co deci lion and not controlled by it Thus the Act mandates that the Board resolve work jurisdictional disputes be tween competing labor organizations In its underlying 10(k) determination, the Board specifically found that the facts of the instant matter clearly revealed the existence of a jurisdictional dispute between the Respondents and the Glaziers over the work of installing aluminum window frames and glass at the SOHIO Petroleum build ing construction project in Anchorage Further, based on the findings of the Board, I concluded that the contrac tual grievance filed against Hoffman by the Respondents was in reality, an unlawful attempt to force Hoffman to have the above work assigned to members of the Iron Workers Notwithstanding what the supreme Court said in W R Grace & Co, it previously ruled in Carey v 576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Westinghouse 375 U S 261 (1964) that rulings by the Board in jurisdictional dispute matters take precedence over arbitration decisions involving the same issues and that [t]he superior authority of the Board may be in yoked at any time Id at 272 The latter decision was not overruled, or even discussed by the Court in W R Grace & Co, rendering correct the conclusion by me that, at least with regard to work jurisdictional disputes decisions of the Board assume primacy over contrary ar bitration results Although such is not the case here, had either Respondent petitioned the arbitrator to issue a de cision favorable to it and had such been done, the Board s prior determination and resolution of a ,junsdic tional dispute would, therefore, assume precedence Fi nally, with regard to the arbitration counsel contends that, assuming the arbitrator had issued' or eventually issues, at the Respondents behest a decision inconsistent with the Board s 10(k) determination and the Respond ents seek judicial enforcement of such, this conduct would be privileged by the Supreme Court s Bill John son s Restaurants v NLRB decision Although any con clusions in this regard would appear to be premature, contrary to counsel, it is clear that any conduct in which the Respondents may engage against Hoffman and which is contrary to the 10(k) determination of the Board would constitute a continuation of the unlawful econom is coercion found above It is, as stated in response to counsel's previous argument, well settled that a 10(k) award takes precedence over any and all contrary arbi tration results Carey v Westinghouse, supra In these cir cumstances, it must be concluded that any future judicial enforcement of a contrary arbitration result for, as shown above an unlawful object would lack any rea sonable basis in both law and fact Therefore, reliance on the Bill Johnson's decision would be, and is misplaced and without merit Longshoremen ILWU Local 32 (Weyerhaeuser Co) 271 NLRB 759 (1984) The final allegation of the complaint results from the conceded failure of either Respondent to notify the Re gional Director for Region 19, in writing, subsequent to the issuance of the underlying 10(k) determination that it would comply with the result of said decision Analysis of the Board cases on this point establishes that this notice requirement is an essential aspect of any determi nation of dispute that compliance with a 10(k) award re quires a showing of a good faith intent to abide thereby that what is necessary for this is actual performance of the written notice requirement Longshoremen Local 7, supra at 366, and that the failure and refusal to provide said written notification standing alone, violates Sec 8(b)(4)(D) of the Act' Longshoremen IL WU Local 62-B (Alaska Timber), 271 NLRB 1291 fn 3 (1984), Plumbers Local 195 (Texas Oil) 231 NLRB 525, 528 (1977), Iron Workers Local 433 (Plaza Glass), 218 NLRB 848 (1975) In defense, counsel for the Respondents argues that nei ther one is acting in noncompliance with the underlying 10(k) determination and that neither Respondent has sought to reopen the arbitration proceedings seeking a favorable ruling 8 However for such defenses to have merit, there must be actual performance of all the re quirements set forth by the Board in a 10(k) determina tion Teamsters Local 528, supra at 209 Written notice is an integral part of the compliance procedure and until satisfied there can be no finding of actual compliance with a 10(k) determination It is not a mere formality, as implied by counsel, and the failure of either Respondent to provide such to the aforesaid Regional Director con stitutes a further violation of Section 8(b)(4)(u)(D) of the Act Alaska Timber, supra CONCLUSIONS OF LAW 1 Hoffman is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 Contract is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 3 Respondent District Council, Respondent Local, and the Glaziers each is a labor organization within the meaning of Section 2(5) of the Act 4 The disputed work consists of the installation and preparation of certain metal frames for glass and the in stallation of glass into metal frames at the SOHIO Alaska Petroleum Company building construction project in An chorage, Alaska 5 Respondent Local engaged in unfair labor practices proscribed by Section 8(b)(4)(ii)(D) of the Act by threat ening to picket Contract with an object of forcing or re quinng the Employer to assign the work, described in paragraph 4 above, to employees represented by Re spondent Local rather than to employees represented by the Glaziers 6 Respondent District Council and Respondent Local each engaged in unfair labor practices proscribed by Sec tion 8(b)(4)(ii)(D) of the Act by filing and maintaining in effect a contractual grievance against Hoffman, seeking monetary damages for work performed by employees represented by the Glaziers, with an object of inducing Hoffman to force or require Contract to assign the work, described in paragraph 4 above to employees represent ed by the Respondents rather than to employees repre sented by the Glaziers and by failing and refusing to comply with the Board s Decision and Determination of Dispute reported at 273 NLRB 260 7 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec tion 2(6) and (7) of the Act 8 Unless specified above, no other unfair labor prac tices have been committed in this matter THE REMEDY Having found that Respondent District Council and Respondent Local each engaged in and is engaging in 7 Inasmuch as Arbitrator Levak correctly understood the limits of his authority in such circumstances counsel is correct that the instant arbi tration ruling is not dispositive of the unfair labor practice issue regarding the Respondents grievance for the violation of the Act results from the maintenance of the action and not the result thereof s Although neither Respondent has moved to have the arbitrator issue a decision contrary to the 10(k) determination it is equally true that nei ther Respondent has indicated that it has abandoned its position at the arbitration hearing IRON WORKERS LOCAL 751 (HOFFMAN CONSTRUCTION) 577 unfair labor practices, I shall recommend that each be Act, including the posting of a notice setting forth its ob ordered to cease and desist and to take certain affirma ligation tive action designed to effectuate the purposes of the [Recommended Order omitted from publication ]