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 ]
