Bricklayers, Local No. 1

National Labor Relations Board - Board Decisions

Dec 21, 1971

194 N.L.R.B. 649 (N.L.R.B. 1971)

BRICKLAYERS , LOCAL NO. 1
Bricklayers, Masons and Plasterers ' International
Union ,of America, Local No. 1, AFL-CIO and
Lembke Construction Company of Colorado, Inc.
and Carpenters District Council of Denver and
Vicinity. Case 27-CD-126
December 21, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
FANNING, JENKINS, AND KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
charges filed on March 11, 1971, by Lembke Con-
struction Company of Colorado, Inc. (hereinafter
called Lembke or the Employer), alleging that
Bricklayers, Masons and Plasterers' International
Union of America, Local No. 1, AFL-CIO
(hereinafter called Bricklayers), had violated Section
8(b)(4)(D) of the Act by engaging in certain pros-
cribed activity with an object of forcing or requiring
Lembke to assign certain work to employees repre-
sented by Bricklayers rather than to employees
represented by Carpenters District Council of Denver
and Vicinity (herein called Carpenters).
A hearing was held before Hearing Officer Clinton
M. Elges on May 6, 1971. All parties appeared at the
hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and
to adduce evidence bearing upon the issues. Briefs
have been filed by Bricklayers, and jointly by the
Employer and Carpenters.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board makes
the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated that Lembke Construction
Company of Colorado, Inc., is a Colorado corpora-
tion which annually receives goods and materials
valued in excess of $50,000 from sources outside the
State of Colorado. We find, therefore, that the
Employer is 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.
Ii. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Bricklayers
and Carpenters are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Facts
649
Lembke, the Employer herein, is engaged as general
contractor in the construction of Skyline Park
Apartments, a multistory urban renewal project in
Denver, Colorado. Work on the project began on or
about May 1, 1970. Part of the construction of this
building, and the work in dispute herein, involves the
erection and installation of precast concrete panels,
including balcony railings.
The Employer is a member of Associated Building
Contractors of Colorado (ABC), an affiliate of
Associated General Contractors of America (AGC).
By virtue of such membership, the Employer is party
to ABC's current collective-bargaining agreements
(effective from May 1, 1969, to April 30, 1972) with
Carpenters and with Bricklayers. Pursuant to these
contracts, the Carpenters and Bricklayers each
claimed jurisdiction of this work and demanded that
it be assigned to employees represented by it. In
September 1970, Lembke advised that the work in
question would be assigned to its employees repre-
sented by Carpenters and, on November 5, 1970,
Lembke confirmed this assignment in writing. Brick-
layers continued to claim this work.
On January 29, 1971, Bricklayers submitted the
dispute to the National Joint Board for Settlement of
Jurisdictional Disputes. Neither the Employer nor the
Carpenters participated in the Joint Board's proceed-
ings, and on February 19, 1971, the aforementioned
organization awarded the work in question to employ-
ees represented by Bricklayers. No appeal was taken.
However, neither the Employer nor the Carpenters
complied with the Joint Board's decision and, on
March 10, 1971, that board issued a directive ordering
compliance by the Carpenters. Also on March 10, the
Bricklayers demanded that Lembke comply with the
Joint Board 's decision and assign the disputed work
to employees represented by it. When Lembke
refused to do so, the Bricklayers began picketing the
Skyline project site . Such picketing was still in
progress at the time of the hearing.
B. The Work in Dispute
The work in dispute is the erection and installation
of precast concrete panels, including balcony railings,
at the Employer's Skyline Park Apartments project in
Denver, Colorado:
C. The Contentions of the Parties
The Employer contends that it ceased to be bound
by the decisions of the National Joint Board when
that entity expired on September 30, 1969, and that,
194 NLRB No. 98
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since it had not agreed to the provisions of the new
National Joint Board agreement, there did not exist
any method for the voluntary settlement of the instant
jurisdictional dispute to which all necessary parties
were bound. The Employer further contends that its
assignment of the disputed work was proper in light of
certain factors usually considered by the Board in
these matters. The Carpenters agrees with the Em-
ployer's position.
The Respondent Bricklayers, on the other hand,
contends that the Board is without jurisdiction to
determine the merits of the dispute , under Section
10(k) of the Act since the parties, by the terms of their
collective-bargaining agreements, have agreed upon a
method for the voluntary adjustment of the dispute.
Relying on Paul Jensen, Inc.,' the Respondent argues
that AGC's withdrawal from the National Joint
Board is immaterial and does not affect Lembke's
contractual obligation to abide by National Joint
Board decisions. Accordingly, the Respondent con-
tends that the notice of hearing must be quashed.
Alternatively, the Respondent contends that the
disputed work should be assigned to employees
represented by it on the basis of certain factors
normally considered by the Board in making awards.
D. Applicability of the Statute
Before the Board may proceed to the determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that (1) there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated, and
(2) the parties have not agreed upon methods for the
voluntary adjustment of the dispute.
As to (1), above, the parties herein have stipulated
that Bricklayers began picketing the Employer's
Skyline project on March 10, 1971, and that such
picketing was in support of Bricklayers demand that
Lembke assign the disputed work to employees
represented-by Bricklayers. Accordingly, we find that
reasonable cause exists to believe that Bricklayers
picketing violated Section 8(b)(4)(D) of the Act.
With respect to (2), above, Bricklayers contends
that the parties have contractually agreed to have the
National Joint Board determine their jurisdictional
disputes. As stated, the Employer is party to ABC's
current collective-bargaining agreements with Car-
penters and Bricklayers. Both of these contracts are
effective from May 1, 1969, to April 30, 1972, and
expressly provide for the settlement of jurisdictional
'International Association of Heat & Frost Insulators & Asbestos
Workers, Local 28 (Paul Jensen, Inc ), 186 NLRB No 20.
2 This agreement was entitled "Plan For National Joint Board For
Settlement Of Jurisdictional Disputes."
3 The record fails to disclose whether Lembke was in fact at any time a
member of AGC, either directly or derivatively through its membership in
disputes by the National Joint Board. Thus, the
contract with Carpenters provides:
Should a jurisdictional dispute arise between
Carpenters and another craft, the two business
representatives shall promptly meet at the job with
the project supervisor to attempt to resolve the
issue. -
If settlement cannot be reached in this manner,
then the procedural rules of the National Joint
Board- for the Settlement of Jurisdictional Dis-
putes shall be initiated at once, and both the
Union and the Employers agree to be bound by all
decisions and awards of record as published by the
National Joint Board. It is understood that this
procedure includes a process for filing of appeals
against adverse decisions.
Similarly, the agreement with Bricklayers provides:
6. Nothing contained herein is intended as in
infringement on the recognized jurisdiction of any
other building trades union, and any jurisdiction
or misunderstanding will be settled in the manner
prescribed by the Building and Construction
Trades Department.
8. Agreements and decisions of record as
published by the National Joint Board for Settle-
ment of Jurisdictional Disputes are recognized by
this Agreement for clarification of the above
jurisdiction. Any decisions rendered or agree-
ments recognized in the future by the National
Joint Board will be recognized and accepted under
the terms of this Agreement.
The National Joint Board for the Settlement of
Jurisdictional Disputes which was in existence when
the foregoing contracts were executed had been
created by agreement between the Building and
Construction Trades Department, AFL-CIO (whose
membership includes the International Unions with
which the Respondent and Carpenters District
Council are affiliated), and the AGC and eight
specialty contractors ' associations .2 In 1968, AGC
gave notice of its intent to terminate that agreement3
and, on September 30, 1969, the agreement was
terminated and the National Joint Board expired.
Thereafter, on October 31, 1969, an interim agree-
ment was entered into between the Building and
Construction Trades Department, AFL-CIO, and
certain contractors' associations to handle jurisdic-
tional disputes through National Joint Board proce-
dures until February 28, 1970. Subsequently, on April
3, 1970, a new National Joint Board for Settlement of
Jurisdictional Disputes was established by agreement
ABC. Therefore, the Employer' s reliance upon decisions such as Local
1151, United Brotherhood of Carpenters and Joiners of America, AFL-CIO
(S. J. Groves & Sons Company), 188 NLRB No 123 (wherein the employer
is a member of AGC and signatory to AGC's bargaining agreement), is
misplaced
BRICKLAYERS, LOCAL NO. I
between the Building and Construction Trades
Department, AFL-CIO, and "Participating Contrac-
tors' Employers' Associations." 4 Neither Lembke,
ABC, nor AGC participated in the negotiation or
execution of either the interim or the new National
Joint Board agreements. Nor did the Employer, either
directly or through its bargaining representative,
agree to be bound by the provisions of the new Joint
Board agreement, which expressly states, in Section 7,
that:
... only those contractors who employ mem-
bers of the organizations affiliated with the
Building and Construction Trades Department of
the AFL-CIO shall be considered as bound by this
agreement when they have signed a stipulation
setting forth that they are willing to subscribe to
and be bound by the terms and provisions of this
agreement. [Emphasis supplied.]
In Paul Jensen, Inc., supra, we held that, as the
employer's contractual obligation to resolve jurisdic-
tional disputes through the National Joint Board was
an individual undertaking, unrelated to its member-
ship in AGC, the obligation was not conditioned upon
AGC's continuing participation in, or support of, any
particular National Joint Board.5 Accordingly, as
Jensen's separate contract provided for submission of
disputes to the National Joint Board and, as one of
the contending unions had in fact submitted the
particular dispute to the Joint Board, we found that
an agreed-upon method for resolution of such dispute
existed. Upon further reflection on the significance of
that holding, however, particularly in light of the
issues as presented in this case, we are constrained to
conclude that the Jensen decision was erroneous and
must be overruled,6 as it is inconsistent with our
traditional interpretation of Section 10(k) and con-
flicts with basic principles of contract law.7
The Board has consistently interpreted Section
10(k) to mean that the employer making the work
assignment, as well as the rival unions claiming the
work, comprise the "parties to such dispute," and that
all must approve and enter into a voluntary adjust-
4 This agreement was entitled "Plan For Settling Jurisdictional Disputes
Nationally And Locally."
5 Member Jenkins did not subscribe to this view
6 To the extent that they rely upon Jensen, supra, the following cases are
hereby also overruled- Reinforced Iron Workers Local No. 426, International
Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO
(Jasinski Builders, Inc), 188 NLRB No 30; Laborers International Union of
North America, AFL-CIO, Local Union No. 670 (Southern Illinois Builders
Association), 189 NLRB No 98
7 As stated in 6 Corbin on Contracts, chap. 74, § 1321 "If the specific
performance promised by a contractor becomes impossible, either by the
destruction of the specific subject matter, the death of a necessary person,
or the nonexistence of the specifically contemplated means of performance, his
duty is discharged-unless the parties expressed a contrary intention."
[Emphasis supplied.]
s N L RB v Plasterers Local Union No 79, Operative Plasterers' and
Cement Masons' International Association [Southwestern Construction Col,
651
ment procedure in order to preclude a hearing and
determination pursuant to that sections In the instant
case, the parties' contractual commitment to comply
with National Joint Board determinations clearly had
reference to a specific existing National Joint Board.
There is no evidence to suggest that the parties
intended by their 1969 contracts to be bound by any
other than the then existing National Joint Board.
Nor is there any principle of contract law by which
the parties automatically became bound to the new
National Joint Board, as if by operation of law, when
that entity came into being during the parties'
contract term. Although the new entity was designat-
ed by the same name, "National Joint Board," it is
clear that neither the Employer nor ABC had in mind
any body not then in existence when they agreed to be
bound by decisions of the existing "National Joint
Board." The mere fact, therefore, that a new
"National Joint Board" was created cannot establish
that the Employer was bound by its decisions. To hold
otherwise would be to find that, as far as the
Employer's contractual obligations are concerned, no
legal distinction exists between the original National
Joint Board and the reconstituted National Joint
Board and that National Joint Boards are, in effect,
interchangeable. Accordingly, when the original
National Joint Board expired on September 30, 1969,
the parties' contractual obligation thereto also
lapsed.9
This conclusion is enhanced by the fact that the new
National Joint Board agreement, by its own terms,
did not consider employers, who are not members of
any signatory employer association, bound by its
provisions until ". . . they have signed a stipulation
setting forth that they are willing to subscribe to and
be bound by the terms and provisions of this
agreement." Furthermore, by article V of this agree-
ment, the building and construction trades depart-
ment and its affiliate International unions, ".. .
expressly request each of the Building and Construc-
tion Trades Councils, District Councils and Local
Unions, respectively:
(a) To secure written assent or stipulation to the
404 U.S. 116 (December 6, 1971). Lathers Union Local 104, The Wood Wire
and Metal Lathers International Union, AFL-CIO (The Blaine Petty
Company), 186 NLRB No. 70.
9 The arguments of our dissenting colleague might have some validity if
the facts were as he states them , i.e., if this were a tripartite undertaking
and, after the hiatus, either the identical Joint Board had been reactivated
or all parties had demonstrated an intent to abide by the reconstituted
Joint Board Absent these facts, however, the mere willingness of one of
the contracting parties to substitute the reconstituted Joint Board for the
entity originally provided for does not impose upon the other party a legal
duty to agree to such substitution This is recognized by sections 309 and
310 of the Restatement of the Law of Contracts And see also Corbin on
Contracts, quoted at In. 7 above. Here , there were two bilateral agreements,
the original Joint Board was not reactivated , and only the Bricklayers
sought to substitute the new Joint Board for the original one under its
contract with the Employer.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
`Plan for Settling Jurisdictional Disputes Nation-
ally, and Locally' by, all Employers, in signed
agreement with said International Union, Council,
and/or Local Union except for such employers
who are stipulated to the Plan by the action of the
employer's association of which they are mem-
bers; or
(b) To proceed at earliest opportunity to negotiate
National Joint Board stipulation into all agree-
ments with each employer whose employees are
represented by such District Council or Local
Union.
In view of the foregoing, we find and conclude that at
the time of the instant dispute there did not exist any
agreed-upon or approved method for the voluntary
adjustment of the dispute. The matter is, therefore,
properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after giving
due consideration to, and balancing, all relevant
factors.10 The following factors are relevant in
making the determination of the dispute before us:
1. Employer's assignment and past practice
As stated, the Employer assigned the work of
erecting and installing precast concrete panels,
including balcony railings, to its employees who are
represented by Carpenters, in accordance with its past
practice. The Employer presented evidence that it
customarily assigns this disputed work to its employ-
ees represented by Carpenters where, as here, the
precast panels are structural,11 rather than ornamen-
tal, and to award such work to employees represented
by Bricklayers where the precast is largely ornamen-
tal.
2. Area practice
Bricklayers contends that the area practice regard-
ing multistory construction favors awarding the
disputed work to employees represented by it,
whereas Carpenters contends that area practice
regarding structural, nonornamental, work favors its
claim. The Employer contends that the evidence with
respect to area practice is inconclusive but tends to
favor the Carpenters position.
10
N.L R.B v Radio and Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers, AFL-CIO (Columbia
Broadcasting System), 364 U S. 573, 586, International Association of
Machinists, Lodge No 1743, AFL-CIO (J A Jones Construction Company),
135 NLRB 1402
11 It is conceded that the precast at the Skyline project here involved
was structural and nonornamental
12 That summary shows that 68 "T-construction single story" jobs done
Respondent placed in evidence a June 1, 1970,
survey, tepoft,-on exterior wall panel, buildings in the,
Carpenters Denver District Council area. This report
was prepared by International representatives of the
two contesting unions at the request of the National
Joint Board because of the many jurisdictional
disputes submitted to it by the Bricklayers against the
Carpenters. The survey was made by each union
submitting a list of jobs on which its members had
worked. The Carpenters list enumerated a total of 257
jobs, of which 169 were verified for type of work
involved, while the Bricklayers list contained 286 jobs,
of which 173 were verified before the report was
submitted. A summary of this survey describes the
jobs only as being either single or multistory construc-
tion. From this survey report, on which the National
Joint Board relied in making its awards,12 it appears
that more of the multistory work was performed by
bricklayers than by carpenters, and more of the
single-story work was done by carpenters than by
bricklayers. The Employer contends, however, that
the foregoing survey, in which it did not participate, is
inconclusive because not all of the jobs listed were
verified; Bricklayers kept regular records of jobs done
by its members, while Carpenters kept no such
records prior to June 1970; and, since June 1, 1970,
carpenters have completed many more jobs of the
type in dispute here than have bricklayers, notwith-
standing National Joint Board awards to the contra-
ry. Although the evidence presented is not entirely
conclusive, as it is not broken down into structural
and ornamental work, it tends to favor the Bricklayers
inasmuch as the disputed work involves multistory
construction.
3. Collective-bargaining agreements
The Bricklayers, by its contract with the Employer,
claims jurisdiction of ". . . all precast work, including
plumbing, setting, aligning, caulking, patching, sili-
coning, cleaning, placing and routing of all materials
containing brick or stone or brick or stone products."
The Carpenters by its contract with the Employer,
claims jurisdiction over "... the unloading, han-
dling, and installation of all exterior and interior
panel wall systems, including transite, aluminum and
any other material."
Although the Employer contends that none of its
several collective-bargaining agreements 13 requires it
by carpenters, none by bricklayers, 17 "T multi-story" jobs done by
carpenters , none by bricklayers , 8 "single-story precast panel" jobs done
by carpenters and 11 by bricklayers; and, 12 "multi-story precast panel"
jobs were performed by carpenters, 73 by bricklayers, for a total job figure
of 105 for the carpenters and 84 for the bricklayers. In sum , on the T-
structural units, all were done by carpenters, none by bricklayers; on the
precast jobs, 84 were done by bricklayers and 20 by carpenters.
13 Although the Employer also has collective-bargaining agreements
BRICKLAYERS, LOCAL NO. 1 653
to assign the work to any one of the unions, it notes
that only the Bricklayers contract is specifically
limited to precast work involving "brick or stone or
brick or stone products." Since the installation of the
precast work involved in this dispute concerns only
precast concrete,-which concededly-does not contain
brick or stone or brick or stone products, it appears
that the broader language of the Carpenters contract
more nearly covers the work involved herein.
4. Efficiency, economy, integration of
operations, skills, safety, availability of
workers
There is nothing in the record to indicate that the
employees represented by the competing unions
cannot perform the disputed work with equal skill and
safety. The Employer, however, strongly favors an
award to its employees who are represented by
Carpenters for reasons of efficiency, economy, inte-
gration of operations, the greater availability of
carpenters, and continuity of its work force. The
evidence shows that the Carpenters wage rate is
substantially lower than that provided in the Bricklay-
ers contract, and that the Carpenters work rules are
less restrictive than those of Bricklayers. The Employ-
er's president testified that Lembke began hiring
carpenters as soon as work on the Skyline project first
began and had employed 18 carpenters when the
disputed work was assigned, but no bricklayers had
yet been employed at the project. Thus, the Employer
was able to utilize carpenters who were already
familiar with the construction project, and did not
have to -lay off any carpenters in order to hire
bricklayers. The Employer's president ' also testified
that greater efficiency and flexibility was achieved by
using carpenters to perform the work in question,
since it was possible to reassign carpenters to perform
other work on the project, whenever the disputed
work was halted. In addition, the Employer testified
that in its experience, carpenters were generally more
available than were bricklayers. This testimony,
however, was countered by Bricklayers who presented
evidence that the availability or shortage of employ-
ees in all crafts depended largely upon the amount of
construction going on in the area at any given time.
Although the evidence regarding the relative availa-
bility, skill, and safety of employees represented by
the competing unions is inconclusive, it is clear that
the wage rates of carpenters are lower and that their
work rules are less restrictive. In addition, the
evidence demonstrates that the assignment, of the
disputed work to carpenters results in greater efficien-
cy on the job and a more stable work force since
carpenters, unlike bricklayers, are utilized by the
Employer for other work on the construction project.
5. Joint Board determinations
Respondent contends that the National Joint Board
determinations favor awarding the disputed work to
it. Thus, Respondent placed in evidence a number of
Joint Board decisions arising from disputes between
Bricklayers and various other unions in the Denver
area and in other parts of the United States. Most of
these Joint Board awards were made in 1970 and 1971
although a few are dated in 1968 and 1969. The
Employer contends that these awards have no bearing
upon the issue at hand because they refer to only a few
employers in a few States; there is no evidence that
the work there involved is completely comparable to
that herein; the Employer was not party to any of
these disputes and the Carpenters was not a party to
many of them; and, the Joint Board's decisions fail to
give any reasons for the awards. We find merit in the
Employer's contention.
Although we have considered National Joint Board
awards a factor in determining the proper assignment
of disputed work, we find that the awards submitted
in evidence by Respondent are neither binding on the
Employer nor determinative of area or national
practice.
Conclusions
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
conclude that Lembke's employees who are represent-
ed by Carpenters are entitled to the work in dispute.
We reach this conclusion upon the Employer's
assignment of the disputed work to its employees, the
fact that the assignment is consistent with the
Employer's past practice and its current bargaining
agreement with Carpenters, the fact that it is not
clearly inconsistent with the area practice, the fact
that the employees represented by Carpenters possess
the requisite skills to perform the work, and the fact
that such assignment will result in greater efficiency,
economy, and continuity of operations. Accordingly,
we shall determine the dispute before us by awarding
the work in dispute at the Employer's Skyline project
in Denver, Colorado, to those employees represented
by Carpenters, but not to that Union or its members.
In consequence, we also find that the Bricklayers is
not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force or require the Employer
to assign the disputed work to employees represented
by it.
The Employer, in its brief, requests that the Board's
with Laborers and with Ironworkers each of which might be said to cover
the work here in dispute, neither union has made direct demand for the
work.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
award be extended to cover all future erection and
installation of prestress and precast concrete of
structural nature to be performed by the Employer in
the geographical jurisdiction of the Carpenters Union.
The Employer argues that the many similar disputes
which Bricklayers has referred to the National Joint
Board demonstrate that the instant dispute is part of a
continuing jurisdictional dispute between the two
unions and that, therefore, a strong possibility exists
that similar disputes will occur in the future. Although
the Board need not restrict its award to a single job if
there is evidence that similar disputes will occur in the
future,14 we conclude that a broad award is not
clearly justified by the evidence herein. Thus, the
record is not clear with respect to future operations of
the Employer, nor is it clear with respect to future
activities of the parties involved. Therefore, we will
limit our award only to the project presently under
consideration.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
hereby makes the following determination of the
dispute:
1. Employees of Lembke Construction Company
of Colorado, Inc., who are represented by Carpenters
District Council of Denver and Vicinity, are entitled
to perform the work of erecting and installing of
precast concrete panels, including balcony railings at
the Employer's Skyline Park Apartments project in
Denver, Colorado.
2. Bricklayers, Masons and Plasterers' Interna-
tional Union of America, Local No. 1, AFL-CIO, is
not entitled, by means proscribed by Section
8(b)(4)(D) of the Act, to force or require Lembke
Construction Company of Colorado, Inc., to assign
the above work to employees represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Bricklayers, Masons
and Plasterers' International Union of America,
Local No. 1, AFL-CIO, shall notify the Regional
Director for Region 27, in writing, whether or not it
will refrain from forcing or requiring the Employer,
by means proscribed by Section 8(b)(4)(D) of the Act,
to assign the work in dispute to employees represented
by Bricklayers, rather than to employees represented
by Carpenters.
MEMBER FANNING, dissenting:
I cannot agree with the majority that the Board's
14 Lathers Union Local 104, The Wood Wire and Metal Lathers
International Union, AFL-CIO (Associated General Contractors of America,
etc - The Blaine Petty Company), 186 NLRB No 70, Plumbers &
decision in Paul Jensen, Inc., supra, was incorrectly
decided. Contrary to the majority, I do not find it
"inconsistent with our traditional interpretation of
Section 10(k)" or in conflict with "basic principles of
contract law." In Section 10(k) Congress directed the
Board to encourage the parties to resolve their
jurisdictional disputes through private arbitration.
This is in sharp contrast to Section 10(a) which
provides that the Board's authority as to other unfair
labor practices should be exercised whether or not
another forum, such as arbitration, exists. Despite this
statutory language, a Board majority in the recent
Collyer case (192 NLRB No. 150) required the parties
to resolve their 8(a)(5) dispute through arbitration. In
the instant case, where the statutory language encour-
ages the use of arbitration, a majority of the Board
insists that a 10(k), 8(b)(4)(D) dispute must be
resolved by this Board. It seems to me that the forum
of arbitration should be entitled to the same esteem in
a jurisdictional dispute case where Congress directed
that it be preferred to Government intervention as it is
in a refusal-to-bargain case where the statutory
instruction is to the contrary. There is no interpreta-
tion of Section 10(k) by this Board or any court which
is inconsistent with this view and the majority cites no
authority for such a conclusion. Nor do I find any rule
of contract law which would free this Employer,from
his contractual commitment to these two unions.
Clearly, the Bricklayers, and the Carpenters, the
principal parties to this work assignment dispute, are
and at all times have been bound to the Joint Board.
In a tri-partite undertaking the Employer agreed to be
similarly bound. -Necessarily, the agreement of each
was consideration for the agreement of the others.
The Employer has enjoyed the full benefit of these
labor agreements, which included his promise to be
bound by Joint Board decisions. Both unions were
entitled to, and did, rely on this contractual commit-
ment. It is therefore, in my opinion, too late for this
Employer to argue that his promise is not a promise at
this time because the Joint Board was reorganized and
reformed after a hiatus. Under accepted contract law
where the duty of a party is discharged by the failure
of a condition to exist he is again subject to that duty
if he permits continued performance of the contract
without notice to the other party that he desires
modification of the contract. Restatement of the Law
of Contracts, vol. 1, ch. 10, § 309.
For these reasons I believe the Jensen decision was
correctly decided and I would adhere to it. Accord-
ingly, I would quash the notice of hearing.
Steamfitters Local Union No 189, etc (P. W Wander, Inc), 176 NLRB No
129, and cases cited at fn 10