Intl. Assn. of Heat & Frost Insulators

National Labor Relations Board - Board Decisions

Oct 28, 1970

186 N.L.R.B. 137 (N.L.R.B. 1970)

INTL. ASSN . OF HEAT & FROST INSULATORS
International Association Heat & Frost Insulators &
Asbestos Workers, Local 28 and Paul Jensen, Inc.
et at. and United Brotherhood of Carpenters and
Joiners of America , Local 515, AFL-CIO. Case
27-CD-110
October 28, 1970
DECISION AND ORDER QUASHING NO-
TICE OF HEARING
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
charges filed by Gerald A. Phipps, Inc., herein called
Phipps, on December 10, 1969, alleging that Interna-
tional Association of Heat & Frost Insulators &
Asbestos Workers, Local 28, herein called Asbestos
Workers, had violated Section 8(b)(4)(D) of the Act
by engaging in certain proscribed activity with an
object of forcing or requiring Paul Jensen, Inc. to
assign certain work to employees represented by the
Asbestos Workers rather than to employees represent-
ed by the United Brotherhood of Carpenters and
Joiners of America, Local 515, AFL-CIO, herein
called Carpenters. A hearing was held before Hearing
Officer Robert E. A. Lee on March 3, 1970. 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. At the conclusion of the hearing the
Asbestos Workers moved to dismiss the charge. The
Hearing Officer referred the motion to the Board.
Thereafter briefs were filed by Asbestos Workers and
Phipps and Jensen.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
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 record shows, and we find, that Gerald H.
Phipps, Inc., and Paul Jensen, Inc., are engaged in
commerce within the meaning of the Act.
2. The parties stipulated, and we find, that
Asbestos Workers and Carpenters are labor organiza-
tions within the meaning of the Act.
3. The Dispute.
Phipps is the general contractor in a job now in
progress for the Mountain States Telephone &
Telegraph Company in Colorado Springs, Colorado,
137
for the construction of a seven-story addition to the
existing main telephone exchange building. Phipps
had a subcontract with Paul Jensen, Inc., herein
called Jensen, for a substantial amount of acoustical
work, as well as insulation in the ceiling of the boiler
and mechanical rooms in the basement of the new
addition. Jensen has a contract with the Carpenters,
expiring on April 30, 1972, and containing a provision
that the parties shall be bound by decision of the
National Joint Board. The work of insulating the
pipes in the heating and air conditioning plant of the
building was performed by another subcontractor,
Construction Specialties, Inc., herein called Special-
ties. There is an existing agreement between Special-
ties and the Asbestos Workers.
Jensen commenced the installation work in the
boilerroom on December 8, 1969. Agents of the
Asbestos Workers and Carpenters notified Phipps
that they both claimed such work.
On December 10, 1969, the Asbestos Workers
caused a work stoppage from 8 until 10 a.m. on
December 11, 1969, to protest the assignment of the
disputed work to the Carpenters. Jensen has not
performed any insulation work on the job since
December 10, 1969.
On February 9, 1970, Jensen received a copy of a
letter from the Asbestos Workers, which was written
to Phipps, informing him that the Asbestos Workers
had requested a National Joint Board decision.
During this time, Jensen was advised by the Carpen-
ters that they likewise had submitted the matter to the
National Joint Board.
Phipps and Jensen contend that neither has had
representation on the National Joint Board since
September 30, 1969, when the National Joint Board
expired and that the Carpenters agreements were
printed prior to that time. They contend further that
they are members of the Associated General Contrac-
tors of America, herein called A.G.C., and that the
A.G.C. is not a member of the interim or newly
reconstituted National Joint Board, which came into
existence on October 15, 1969.
On the basis of the foregoing, we are satisfied, and
find, that Jensen had bound itself by contract with the
Carpenters, to be bound by the decision of the
National Joint Board. This understanding by Jensen
was unrelated to its membership in A.G.C., and hence
the present A.G.C. position concerning that board is
irrelevant. The existing agreement with the Carpen-
ters contains language as follows: "(2) If settlement
cannot be reached in this manner, then the procedural
rules of the National Joint Board for the Settlement of
Jurisdictional Disputes shall be initiated at once. Both
the Union and the Contractors agree to be bound by
the National Joint Board. It is understood that this
186 NLRB No. 20
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
procedure includes a process for filing of appeals
against adverse decisions."
The record further shows that the Carpenters wrote
a letter to Phipps, who later sent a copy to Jensen,
stating that the Carpenters had submitted the matter
to the National Joint Board, and that as signatories to
the contract, both Jensen and the Carpenters were
bound by the National Joint Board assignment.
We are persuaded that in light of Jensen's contract
with the Carpenters providing for submission of
disputes to the National Joint Board, and the
Asbestos Workers submission of the disputed work to
the National Joint Board for a decision, and the fact
that the dispute in question has been submitted to the
National Joint Board which awarded the work to the
Asbestos Workers, the policies underlying Sections
10(k) and 8(b)(4)(D) will not be served by Board
intervention in this dispute. Sections 10(k) and
8(b)(4)(D) were enacted to protect employers and the
general public from the wasteful consequences of
jurisdictional strikes.' This was to be achieved
through procedures designed (1) to encourage the
settlement of jurisdictional differences without Board
intervention, (2) to empower the Board to determine
disputes not resolved by private arbitrators, and (3) to
outlaw jurisdictional strikes in the interests of neutral
employers and the public.2 These considerations
militate in favor of the Board's withholding a
determination of a jurisdictional dispute not only
when there has actually been a voluntary adjustment,
but also whenever the Board has before it
"satisfactory evidence" that the parties have agreed
on methods for the voluntary adjustment of the
dispute.3
Under the circumstances herein, it is apparent that
an assertion of 10(k) jurisdiction would not effectuate
the policies of the Act.4 To proceed to a dispute
determination simply because one or more of the
parties to an agreed voluntary means of settlement of
the dispute is not satisfied with the award of the forum
designated would be to convert Section 10(k) to a
compulsory arbitration procedure that is available
without limitation to any party contesting an assign-
ment or award of work. Such a view is not supported
by the legislative history and would have the detri-
mental effect of encouraging and prolonging jurisdic-
tional disputes, while at the same time discouraging
resolutions of such differences through voluntary
methods of adjustment.
For these reasons, we find merit in the position of
the Asbestos Workers that there exists an agreed-
upon method for the voluntary adjustment of this
dispute and, accordingly, we shall quash the notice of
hearing in this case.
1 H.R. Rep . No. 245, 80th Cong., 1st sess. (1947), 1 Leg. Hist. 294-296,
314-315.
2 See Kentucky Skilled Craft Guild, 155 NLRB 1196.
s Don Cartage Co., Inc., 121 NLRB 101.
4 We find no merit in Phipps' and Jensen 's contention that, because the
National Joint Board stopped functioning for a time, it was not a
satisfactory forum for resolution of the dispute . The record shows that the
National Joint Board was reconstituted and is presently functioning.
ORDER
It is hereby ordered that the notice of hearing issued
in this proceeding be, and it hereby is, quashed.