Laborers, Local 423

National Labor Relations Board - Board Decisions

May 31, 1973

203 N.L.R.B. 1015 (N.L.R.B. 1973)

LABORERS , LOCAL 423
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
May 31, 1973
SUPPLEMENTAL DECISION AND ORDER
DENYING MOTION FOR
RECONSIDERATION
On September 29, 1972, the National Labor Rela-
tions Board issued a Decision and Order Quashing
Notice of Hearing' in the above-entitled proceeding
in which it found that all the parties involved in the
jurisdictional dispute had agreed to be bound by a
determination of the National Joint Board for the
Settlement of Jurisdictional Disputes of the Building
and Construction Trades Industry, herein called the
Joint Board, notwithstanding the fact that Local 423,
Laborers' International Union of North America,
AFL-CIO, herein called Laborers, had earlier been
placed in a status of noncompliance with the Joint
Board.
Thereafter, on October 18, 1972, Laborers filed a
Motion for Reconsideration, in which it alleged that
it was unlawfully placed in a status of noncompliance
by the Joint Board, and requested oral argument. Oral
argument was held on December 11, 1972, at which
appearances were made by counsel for Laborers,
Bricklayers and Allied Masonry Trades, Local 55,
Bricklayers, Mason and Plasterers International
Union, herein called Bricklayers, the Joint Board, and
the Associated General Contractors. Subsequent to
the oral argument , Laborers and Associated General
Contractors filed briefs, the latter being an amicus
curiae brief in support of the Laborers Motion for
Reconsideration.
The Board, having duly considered Laborers Mo-
tion for Reconsideration, the oral argument , and the
briefs filed by Laborers and Associated General Con-
tractors, has decided to deny the motion.
The issue before us is a narrow one: whether a
union, having agreed with the other necessary parties
to be bound to the National Joint Board for the Settle-
ment of Jurisdictional Disputes, can by the simple act
of refusing to comply with an award of That board
terminate its obligation to submit jurisdictional dis-
putes to that board and thereby eliminate what had
previously been an "agreed-upon" method for the vo-
luntary settlement of such disputes within the mean-
ing of Section 10(k) of the Act.
' 199 NLRB No. 48
1015
We think the mere act of noncompliance with one
or more decisions of the Joint Board does not consti-
tute a revocation or abrogation of the previously ex-
isting "agreed-upon" method for settling juris-
dictional disputes. In other areas, one party's failure
to comply with an arbitration award does not elim-
inate the entire grievance-arbitration machinery the
parties have created. Instead, the parties are left to
enforcement of each such an award through the usual
judicial process, and the grievance-arbitration ma-
chinery remains in place and in effect for disposition
of the next such dispute as may occur. Nor does a
breach of a collective-bargaining agreement necessar-
ily terminate the agreement, nor in the interest of
stable labor relations should it. We perceive no reason
why the rule should be different with respect to
"agreed-upon methods" for settling jurisdictional dis-
putes.
Rather, it appears that, where an "agreed-upon"
method has been formally and deliberately created by
the parties, stability in labor relations requires a delib-
erate and formal withdrawal from such procedure be-
fore it will be considered no longer effective and
binding. The record before us contains no evidence,
apart from the noncompliance with the Joint Board's
awards, indicating any such withdrawal from the pre-
viously agreed-upon method. Accordingly, we con-
clude that there remains in effect the previously
established method, "agreed upon" within the mean-
ing of Section 10(k) of the Act, for resolving this juris-
dictional dispute.
Although the evidence before us does not establish
a withdrawal from the agreed-upon method, we do
not imply that such withdrawals may not be made in
a timely and appropriate manner. The parties may
establish reasonable rules for withdrawals as to times
and procedures, and such rules may control the bind-
ing effect of existing "agreed-upon methods" for re-
solving these disputes. The absence of such provisions
for withdrawal need not mean the parties, once bound
to an agreed-upon method, are bound to it forever;
for the Board in the somewhat similar situation of
union constitutions and bylaws providing for no ef-
fective means of resignation, or checkoff authoriza-
tions which apparently are irrevocable, has found
means to permit resignation or revocation.2However,
a withdrawal after a jurisdictional dispute arises
should, we think, not remove that dispute from the
Joint Board's jurisdiction.'
2 Union membership resignations : Aeronautical Industrial District Lodge
751, affiliated with the International Association of Machinists & Aerospace
Workers, AFL-CIO (Boeing Co.), 173 NLRB 450. Checkoff authorizations:
Stainless Steel Products, Inc., 157 NLRB 232.
3 Cf. the analogous rule in multiemployer bargaining , where withdrawals
from the unit may not be made after bargaining has commenced . Retail
Associates, Inc., 120 NLRB 388.
203 NLRB No. 176
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In none of the foregoing do we imply any decision
as to whether withdrawal from Joint Board proce-
dures is inhibited by a union 's affiliation with the
Building and Construction Trades Department,
AFL-CIO. Whatever effects withdrawal from Joint
Board procedures may have upon affiliation with the
Building and Construction Trades is a matter for the
internal rules of the department.
Accordingly , we shall deny the Motion for Recon-
sideration.
ORDER
It is hereby ordered that the Motion for Reconsid-
eration be, and it hereby is, denied.
MEMBER KENNEDY , dissenting:
I adhere to the view expressed in my dissent to the
original Decision and Order Quashing Notice of
Hearing herein.'
This case cannot be distinguished in principle from
Lathers Local Union No. 62, Wood Wire & Metal
Lathers International Union, AFL-CIO (Belou & Co.
Accoustics, Inc.), 150 NLRB 21, 25. The Board there
refused to quash a 10(k) notice of hearing and stated:
In addition , although these Unions are subject to
the jurisdiction of the National Joint Board, un-
der its rules and regulations that board will not
determine a dispute where , as here , both Unions
are in "non-compliance" with said rules , but will
direct that the employer may proceed with the
disputed work on the basis of its original assign-
ment. We do not regard the refusal to make a
determination as an affirmative determination
on the merits . Accordingly , we find that there is
no agreed-upon method of settlement, and we
shall proceed to a determination of the merits of
the dispute.
In the instant case only the Laborers are in a noncom-
pliance status . It cannot be said, however, that there
is an agreed-upon method of settlement so long as the
rules and regulations of the Joint Board preclude is-
4 199 NLRB No. 48. 4.
suance of a decision in favor of the noncomplying
Laborers.
The Supreme Court has noted that "It is clear that
Congress intended to protect employers and the pub-
lic from the detrimental economic impact of `indefen-
sible 'jurisdictional strikes." See N. L. R. B. v. Plasterers
Local Union No. 79, et al., 404 U.S. 116 (1971). The
Court there held that the Board is "required" by Sec-
tion 10(k) of the Act to proceed to determine jurisdic-
tional disputes unless all parties have agreed to settle
their differences . The Board's responsibility under
Section 10(k) of the Act was discussed at great length
and the Court reemphasized that it had held earlier in
the CBS case 5 that Congress had expressed a clear
preference for Board decision as a means of resolving
jurisdictional disputes, absent agreement of all par-
ties, and that this policy preference must be respected.
Indeed, it seems to me that by its decision herein
the Board majority has once again reverted to the
same narrow "conception of its duty" under Section
10(k) of the Act which was totally rejected by the
Supreme Court in the CBS case. Section 10(k) pro-
vides that:
the Board is empowered and directed to hear and
determine the dispute out of which such unfair
labor practice shall have arisen , unless , within ten
days after notice that such charge has been filed,
the parties to such dispute submit to the Board
satisfactory evidence that they have adjusted, or
agreed upon methods for the voluntary adjustment
of, the dispute. [Emphasis supplied.]
The Supreme Court's final observation in the CBS
case is equally applicable here. The Court stated:
We conclude therefore that the Board 's inter-
pretation of its duty under § 10(k) is wrong and
that under that section it is the Board's responsi-
bility and duty to decide which of two or more
employee groups claiming the right to perform
certain work tasks is right and then specifically to
award such tasks in accordance with its decision.
In my view we have a clear statutory mandate to
decide this case on the merits.
5 N LR B v. Radio and Television Broadcast Engineers Union [CBS], 364
U.S. 573, 586 (1961).