Local 423, Laborers

National Labor Relations Board - Board Decisions

Sep 29, 1972

199 N.L.R.B. 450 (N.L.R.B. 1972)

450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 423, Laborers' International Union of North
America, AFL-CIO and V & C Brickcleaning Co.
and Bricklayers and Allied Masonry Trades, Local
55, Bricklayers, Mason and Plasterers International
Union. Case 9-CD-251
September 29, 1972
tional standards for both direct sales and purchases.
Accordingly we find, as the parties have stipulated,
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will
effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATIONS
DECISION AND ORDER QUASHING
NOTICE OF HEARING
BY MEMBERS FANNING, KENNEDY, AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
charges filed by V & C Brickcleaning Co., herein
called V & C, on February 15, 1972, alleging that
Local 423, Laborers' International Union of North
America, AFL-CIO, herein called Laborers, had vio-
lated Section 8(b)(4)(D) of the Act by engaging in
certain proscribed activity with the object of forcing
V & C to assign certain work to Laborers rather than
employees represented by Bricklayers and Allied Ma-
sonry Trades, Local 55, Bricklayers, Mason and Plas-
terers International Union, herein called Bricklayers.
Pursuant to notice, a hearing was held before
Hearing Officer Bruce E. Pence on May 3, 1972, in
Columbus, Ohio. All parties appeared at the hearing t
and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence bearing on the issues. The Bricklayers there-
after filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its ru-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hear-
ing Officer made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed. The Board has considered the entire record
in this case and hereby makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
V & C, an Ohio partnership whose principal
place of business is Marysville, Ohio, is a contractor
engaged in the building and construction industry.
During a 12-month representative period, V & C
performed services in excess of $20,000 for customers
located outside the State of Ohio; during this same
period V & C performed services valued in excess of
$50,000 for Ohio firms who in turn meet the jurisdic-
1 The attorney for Laborers left the hearing shortly after his motion, that
the hearing be dismissed because of the Laborers disclaimer of the disputed
work, was overruled by the Hearing Officer.
The parties stipulated, and we find, that Laborers
and Bricklayers are labor organizations within the
meaning of Section 2(5) of the Act.
III THE DISPUTE
A. The Work in Dispute
The work in dispute is the use of a long-handled
scraper to scrape and clean brick and concrete block
at the Ohio State University School of Dentistry con-
struction site, Columbus, Ohio.
B. Background and Facts of the Dispute
Knowlton Construction Company is the general
contractor on a job now in progress at the Ohio State
University School of Dentistry construction site in
Columbus, Ohio. V & C is a subcontractor for
cleaning, scraping, pointing, and caulking block and
brick walls. It began work on the project in November
1971. At that time V & C assigned its work to its own
employees, who are bricklayers represented by Brick-
layers with whom V & C has a contract. V & C has
no contract with the Laborers.
Shortly after V & C began work on the project,
a Laborers steward approached two of V & C's brick-
layers, Jerry Chaney and Donald Cooper, and told
them that Laborers would walk off the job if the
bricklayers continued using long-handled scrapers to
scrape excess mortar off the brick and block walls.
Also, Laborers Business Agent John Gore and Labor-
ers Manager John Scales told Chaney that the long-
handled scraper was a Laborers tool, and continued
use by bricklayers would cause Laborers to pull their
men off the job. Lewis Colvin, a partner in V & C, was
notified of this and advised Knowlton of Laborers
threat. Knowlton then told Colvin to cease doing the
contested work until the dispute could be settled. V &
C's bricklayers were pulled off all cleaning and scrap-
ing work but continued pointing and caulking opera-
tions.
The collective-bargaining agreement signed by
the Bricklayers and V & C assigns the work of
cleaning all masonry to the Bricklayers. There is no
evidence in the record that the Laborers, by contract
or custom, have ever been assigned the work in dis-
199 NLRB No. 48
LOCAL 423, LABORERS 451
pute. This collective-bargaining agreement also pro-
vides for the submission of all jurisdictional disputes
between the Bricklayers and any other unions affiliat-
ed with Building and Construction Trades Depart-
ment, AFL-CIO,2 to the National Joint Board for the
Settlement of Jurisdictional Disputes of the Building
and Construction Trades Industry, herein called the
Joint Board.
At the hearing the attorney for the Bricklayers
advised the Hearing Officer that he had, on February
23, 1972, addressed a letter to the chairman of the
National Joint Board advising him of the current dis-
pute and requesting that the Joint Board consider the
case. However, there is no evidence that the Joint
Board has taken any action on this case.
C. Contentions of the Parties
At the outset of the hearing , the attorney for the
Laborers informed the Hearing Officer that the La-
borers now disclaimed the work in question . He then
moved that the hearing be dismissed . The Hearing
Officer overruled his motion and the attorney shortly
thereafter left.
Both V & C and the Bricklayers argue that the
work in dispute should be retained by V & C's brick-
layers . Reasons given include efficiency , economy,
and past practice . As far as the problem of the Joint
Board 's jurisdiction is concerned , the Bricklayers
posthearing brief argues that none of the parties to this
dispute have agreed to be bound by a Joint Board deci-
sion . The Bricklayers February 23 letter to the Joint
Board was merely a notification of the existence of a
dispute , and not an intention to be bound by any deci-
sion of the Joint Board. As for the Employer , the Brick-
layers brief points out that the Employer never joined in
the letter to the Joint Board or ever agreed to be bound
by the Joint Board in any way. And as for the Laborers,
the Bricklayers notes that the Laborers is in noncompli-
ance with the Joint Board and hence is not bound by any
decision of the Joint Board.
D. Applicability of the Statute
Before the Board may proceed to the determina-
tion of a dispute pursuant to Section 10(k) of the Act,
it must be satisfied that the parties have not agreed
upon methods for the voluntary adjustment of the
dispute. For the reasons stated below, we find it un-
necessary to pass upon the merits with respect to a
proper award of the disputed work because from the
record it appears that all the parties involved in the
instant proceeding agreed to be bound by a deter-
mination of the Joint Board.
The present Joint Board was created on April 3,
1970, pursuant to an agreement between Building and
Construction Trades Department, AFL-CIO, and
Participating Contractors Employers' Associations.
Sometime later, the agreement between V & C and the
Bricklayers was signed, expressly providing for Joint
Board settlement of all jurisdictional disputes be-
tween the Bricklayers and any other union affiliated
with Building and Construction Trades Department,
AFL-CIO. In view of the foregoing, we find that both
the Employer and the Bricklayers have agreed to be
bound by a determination of the Joint Board.
The Laborers Union is formally affiliated with
Building and Construction Trades Department,
AFL-CIO, a signatory to the April 3, 1970, agreement
reconstituting the Joint Board. We therefore find that
the Laborers also has agreed to be bound by a deter-
mination of the Joint Board. The fact that the Labor-
ers may be in a position of noncompliance with past
Joint Board determinations is immaterial for the pur-
poses of this proceeding. Winn-Senter Construction
Company, 194 NLRB No. 74.
Our dissenting colleague would decline to quash
the notice of hearing, because he believes that a
speedy resolution of the instant dispute pursuant to
the agreed-upon method, i.e., the Joint Board, is un-
likely. However, the thrust of Section 10(k) of the Act
is to forbid the Board to settle the jurisdictional dis-
pute only upon a showing of a method agreed upon
by the parties of settling the dispute, not upon a fur-
ther showing that the agreed-upon method will be
expeditious. Here, there is such an agreed-upon meth-
od of settling jurisdictional disputes, the Joint Board;
we are required to defer to that method.
If we retained jurisdiction in this case, the stat-
utory purpose to encourage the voluntary settlement
of jurisdictional disputes would be frustrated in that
a party receiving an adverse decision from the agreed-
upon tribunal for settling its jurisdictional dispute
would be encouraged to ignore such decision, lapse
into noncompliance, and then come before this Board
for a more favorable resolution of the dispute.
Our dissenting colleague relies on Bricklayers &
Stonemasons Union Local No. 3 of Arizona (Concrete
Erection), 195 NLRB No. 32, and Plumbers and Pipe-
fitters Local No. 32 (Tacoma Chapter of the Associated
General Contractors of America, Inc.), 191 NLRB No.
193, as authority for the proposition that the Board
should not quash a notice of hearing when one of the
parties is in a noncompliance status with past Joint
Board decisions. However, in both of these cases, the
basic reason for not quashing was the fact that the
employer was not bound by Joint Board decisions.
Accordingly, we shall quash the notice of hearing
issued herein.
2 The Laborers is so affiliated.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
It is hereby ordered that the notice of hearing
issued in this proceeding be, and it hereby is, quashed.
MEMBER KENNEDY , dissenting:
Unlike my colleagues, I would not quash the no-
tice of hearing in this proceeding . In my opinion,
Section 10(k) of the Act permits the Board not to hear
and determine the dispute only where the methods
agreed upon by the parties are likely to effectively
resolve the jurisdictional controversy . For the follow-
ing reasons , I believe a fair, speedy, and efficacious
resolution of the instant dispute is unlikely.
Although Laborers, through its affiliation with
the Building and Construction Trades Department of
the AFL-CIO, is a signatory to the agreement re-
constituting the Joint Board , it has been declared by
that body to be in noncompliance with previous
awards against its trade . Under the rules and regula-
tions of the Joint Board , so long as Laborers remains
in noncompliance status "no decision in any case de-
cided in favor of [Laborers ] shall be issued." Also,
while it is in noncompliance , Laborers is not entitled
to a representative on the Joint Board.
This, of course , means that even though Laborers
would be entitled to an award in its favor on the
merits , the instant jurisdictional dispute could not be
finally resolved by the Joint Board , if at all , unless and
until Laborers complied with awards against it in oth-
er, unrelated cases . Such needless delay places an un-
fair burden on both V & C and Bricklayers and, in my
opinion , is inconsistent with the congressional pur-
pose expressed in Sections 8(b)(4)(D ), 10(k), and 10(1)
of the Act to provide a rapid solution to jurisdictional
disputes which interfere with the free flow of com-
merce.
Moreover , Laborers is essentially removed from
all involvement with Joint Board proceedings while it
is in noncompliance . This raises serious questions
about the fairness and regularity of the Joint Board
decision-making process, especially where the work is
not awarded to the noncomplying union , albeit in no
circumstances could a union with a representative on
the Joint Board participate in a case involving itself.
See Spielberg Manufacturing Co., 112 NLRB 1080.
Finally, the majority asserts that it is "immateri-
al" that Laborers is in noncompliance status . And yet,
on several recent occasions this Board has relied, in
part, upon such noncompliance to conclude that no
effective method for the voluntary adjustment of the
dispute existed . See, e .g., Bricklayers & Stonemasons
Union Local No. 3 of Arizona (Concrete Erection), 195
NLRB No. 32 ; Plumbers and Pipefitters Local No. 32
(Tacoma Chapter of the Associated General Contractors
of America, Inc.), 191 NLRB No. 103 . Since I believe
those and similar cases were correctly decided, and
because in my opinion the Joint Board is not likely to
effectively resolve the instant jurisdictional dispute, I
would not quash the notice of hearing in this proceed-
ing. I would hear and determine the dispute pursuant
to the mandate of Section 10(k).