Ironworkers Local No. 708, Etc.

National Labor Relations Board - Board Decisions

Jul 31, 1962

137 N.L.R.B. 1753 (N.L.R.B. 1962)

IRONWORKERS LOCAL NO. 708, ETC. 1753
Ironworkers Local No. 708, International Association of Bridge,
Structural and Ornamental Ironworkers , AFL-CIO and Armco
Drainage and Metal Products Co., Inc. Cases Nos. 19-CD-70
and 19-CD-71. July 31, 1962
DECISION AND ORDER QUASHING NOTICE OF HEARING
This is a proceeding under Section 10(k) of the Act following
charges filed by Armco Drainage and Metal Products Co., Inc., herein
called Armco, alleging that Ironworkers Local No. 708, International
Association of Bridge, Structural and Ornamental Ironworkers,
AFL-CIO, herein called Ironworkers or Local 708, had threatened,
coerced, or restrained Armco, with the object of forcing or requiring
Armco to assign certain work to members of the Ironworkers rather
than to Armco's employees who are members of Local 98, Interna-
tional Hod Carriers, Building and Common Laborers Union of
America, AFL-CIO, herein called Laborers or Local 98. A duly
scheduled hearing was held before Patrick H. Walker, hearing officer,
on February 5, 6, and 7 and April 2, 1962. 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 on the
issues. The rulings of the hearing officer made at the hearing are
free from prejudicial error and are hereby affirmed. Thereafter,
Armco and the Ironworkers filed briefs which have been duly
considered.
Upon the entire record, the Board makes the following findings :
1. As stipulated by the parties, Armco is engaged in commerce
within the meaning of the Act.
2. The Laborers and Ironworkers are labor organizations within
the meaning of the Act.
3. The dispute :
A. The facts
Peter Kiewit Sons' Company, herein called Kiewit, and Schultz
and Lindsay Construction Company, herein called S. & L., are gen-
eral contractors now carrying on extensive contracts for highway
construction in the vicinity of Miles City, Custer County, Montana.
Both Kiewit and Schultz subcontracted to Armco the work of in-
stalling the sectional plate pipe used at certain points in the con-
struction, primarily for drainage purposes. Essentially, Armco's re-
sponsibility is to clear, grade, and line the ground base for the pipe;
install, assemble, and erect it in the graded base; and tamp the dirt
under the pipe and along the sides as it is assembled. The work in
dispute here is only that of installing, assembling, and erecting the
sectional plate pipe; it includes the work of joining and bolting the
plates as they are put in place to form the drainage conduit.
137 NLRB No. 195.
1754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the overall operation of building highways, many traditional
categories of construction workers are used, some employed directly
by the prime or general contractors, and others by the subcontractor
or subcontractors. Included among these are operating engineers,
who use bulldozers and cranes among their heavy equipment; truck-
drivers, who move supplies as needed; ironworkers, who do the work
of their trade; and common laborers. How many categories are in
Armco's direct employ from time to time the record does not reveal
precisely, but it does appear that when factory-made sectional steel
plate, an Armco product bearing the trade name "Multiplate" and
forming component parts of the drainage pipes installed on the proj-
ects involved in this case, arrives at the jobsite, it is handled by both
operating engineers and truckdrivers before actual installation.
Armco takes contracts of this kind in many States. In 1961, in the
State of Montana, where the Kiewit and S. & L. jobs are, it has em-
ployed ironworkers to perform the work now in dispute. Thus it
used ironworkers at Grass Range, Montana, in July 1961, and again
from mid-July to early August at Miles City, one of the scheduled
portions of its subcontract with Kiewit. At about the same time,
at three other locations in the State-Helena, Butte, and Bozeman-
it used laborers. It made similar assignments when it started work
for S. & L. at Miles City on about August 1. When work was resumed
at Miles City under the Kiewit subcontract on October 9, Armco put
laborers on the disputed work, where ironworkers had been used
before.
The record also shows that before 1961, Armco, acting as subcontrac-
tor on Multiplate installations in Montana, had used ironworkers for
this work, and that other such subcontractors did the same thing.
For many years, on the other hand, both Kiewit and other general con-
tractors, when they retained the laying of sectional drain pipe on
highway construction under their direct control, generally used labor-
ers instead of ironworkers to perform it.
When Armco started using laborers to do this work, both on the
resumed Kiewit job and at the inception of the S. & L. job, both in
the Miles City area, the Respondent Ironworkers Local, through its
business representative, protested that the work belonged to iron-
workers, who were its members, and told Armco it would picket unless
Armco changed its assignment from laborers to ironworkers. Armco
refused, and admittedly for the purpose of forcing the Company to
comply with the Respondent's work demand, Local 708 picketed the
jobs. Although the picketing was not entirely successful, many em-
ployees ceased work in concert in direct consequence of the picketing.
B. Contentions of the parties
The Laborers and Armco, on the one hand, and the Ironworkers,
on the other, advance a number of reasons why, in their opinion, the
IRONWORKERS LOCAL NO. 7 08, ETC. 1755
Board should award the disputed work to the Laborers or to the Iron-
workers, respectively.
The Ironworkers contend further, however, that there is no occa-
sion in this instance for the Board to consider the merits of the juris-
dictional work dispute because all parties concerned have in fact
agreed upon a voluntary method for its adjustment. It asserts that
both Unions and Armco are bound by agreement to submit the dispute
to the National Joint Board for Settlement of Jurisdictional Disputes
in the Building and Construction Industry, and that the Joint Board
has indeed already issued its determination formally by letter dated
December 21,1961. The Ironworkers therefore moved that the notice
of hearing be quashed.
Armco and the Laborers, while not disputing the fact that they
have a contractual agreement to submit jurisdictional disputes to the
Joint Board for binding arbitration, oppose the motion to discontinue
the proceeding on the grounds that Armco became obligated under
the contractual agreement for voluntary adjustment more than 10 days
after the charge was filed, and on the asserted ground that the deter-
mination of the Joint Board was improper and therefore invalid under
the rules which govern its procedures.
C. Applicability of the statute
We find it unnecessary to pass upon the merits of the conflicting
contentions advanced with respect to a proper award of the work
dispute because all parties concerned have agreed to abide by a deter-
mination of this very issue made, or to be made, by another arbitration
forum. The Laborers and the Ironworkers are, by virtue of their
membership in the Building and Construction Trades Department of
the AFL-CIO, stipulated to the National Joint Board for the Settle-
ment of Jurisdictional Disputes. Armco, the employer and only other
party involved in or concerned with the dispute, is a member of the
Montana Contractors' Association, Inc., an employer association which
is empowered to engage in collective bargaining on behalf of, and
to bind, its members. Armco expressly and in writing gave this Asso-
ciation power to bind it under contract. At that time the Association
was party to a collective-bargaining agreement with the Laborers,
an agreement that was still in effect at the time of the hearing and
presumably continues in force today . The contract provides :
All and/or any problems of a jurisdictional nature as might arise
on any project covered under and during the life of this contract
shall be handled in strict accordance with terms and conditions of
the National Joint Board for the Settlement of Jurisdictional
Disputes.
Armco 's authorization to the Montana Contractors ' Association to
bind it under its contract was given on November 13, 1961, and there
1756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is no question but that the quoted contract provision, together with
the two Unions' stipulations to the Joint Board, established an agreed-
upon method for voluntary adjustment of jurisdictional disputes, in-
cluding the one involved in this proceeding.
The Ironworkers' motion to quash the notice of hearing is predicated
upon Section 10(k) of the Act, on which this proceeding rests and
which reads as follows :
... the Board is empowered and directed to hear and determine
the dispute out of which such unfair labor practice shall have
arisen, unless, within ten days after notice that such charge has
been filed, the parties to such dispute submit to the Board satis-
factory evidence that they have adjusted, or agreed upon methods
for the voluntary adjustment of, the dispute. Upon compliance
by the parties to the dispute with the decision of the Board or
upon such voluntary adjustment of the dispute, such charge shall
be dismissed.
The Board has repeatedly held that the basic import of this section,
as well as the clear objective of the statute as a whole, is to encourage
the parties involved in jurisdictional disputes to settle their differ-
ences amicably within the stabilizing compass of the collective-bargain-
ing process and its resultant contracts.' The parties have done so
in this case. In opposing the Ironworkers' motion to quash, Armco
relies upon the phrase "within ten days" appearing in Section 10(k).
The picketing activities of the Ironworkers, called illegal in the
charges, took place on October 10 and 12, 1961. Armco filed the
charges on October 16 and the hearing took place in February and
April 1962. Armco's authorization to its employer association, the
document which effectively made Armco party to the Joint Board
procedures for binding arbitration of disputes of this kind, was given
on November 13, 1961, more than 10 days after the filing of the charges.
We are asked for this reason to ignore the agreement of all parties to
adjust the dispute voluntarily and outside the ambit of Government
function. The argument necessarily proposes concomitant determina-
tions of the same jurisdictional dispute by two different arbitration
boards which could reach divergent conclusions.
We do not construe the pertinent language of Section 10(k) as the
Company would suggest. The statute makes no reference to the tim-
ing, relative to the filing of the charge, of any party's acceptance of
the voluntary method for adjustment of the dispute. It speaks only
of the submission of evidence to this Board or its agents to prove the
1 Millwrights Local 1102 , United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, et al. (Don Cartage Co ., Inc.), 121 NLRB 101, 106: "Clearly the purpose of
the . . . [10(k)] provision was to afford the parties an opportunity to settle Jurisdic-
tional disputes among themselves without Government intervention whenever possible"
See also Local Union No. 9, Wood, Wire and Metal Lathers International Union, AFL-
CIO (A. W. Lee, Inc.), 113 NLRB 947; William . F. Traylor, 97 NLRB 1003.
IRONWORKERS LOCAL NO. 708, ETC. 1757
existence of the voluntary agreement. Moreover, while the section as
a whole precludes the Board from making any determination where
such evidence is submitted "within ten days," it does not follow that
an implied congressional intent was to compel the Board to decide the
issue despite the voluntary agreed-upon method merely because the
evidence of the agreement was submitted to the Board at a later date.2
And finally, it would be pointless for this Board to issue its opinion
on the merits of the dispute at the very moment when the parties are
contractually bound to adhere to whatever determination of the same
question may be reached by the Joint Board for Settlement of Juris-
dictional Disputes in the Building and Construction Industry. We
cannot hold that the scheme of the statute as a whole was intended to
encompass so incongruous a result .3
We find equally without merit the contention of both Armco and
the Laborers that the Board must proceed to make an affirmative
award of the disputed work because the Joint Board has not in fact
issued a definitive decision consistent with the requirements of its
own procedural plant. The Board has held that it will quash the
notice of hearing in these proceedings once it appears that all parties
have agreed upon a voluntary method for adjusting the dispute,
whether or not the chosen arbitration body has considered and decided
the issues.' Indeed, it has also deemed immaterial the fact that one
of the parties may have announced in advance that it will not honor
a future decision made pursuant to the agreed-upon method, or has
rejected it after it was made. "To hold otherwise would condone and
sanction . . . [a party's] breach of the agreement, and would tend to
discourage and render worthless the making of such agreements, con-
trary to the statutory purpose to encourage the voluntary adjustment
of jurisdictional disputes." 5
There is conflicting evidence as to the procedural steps followed in
this instance by the Joint Board when its chairman advised the parties
in December 1961 and January 1962 of its action, and as to the applica-
bility of certain details of the terms and conditions which are to govern
its consideration of disputes. One of the members of the Joint Board
appeared as a witness at the hearing in this proceeding and cast doubt
upon the true intendment of that Board's apparent determination of
this dispute. For reasons set out above, even if we were to agree
with the Laborers' assertion and find that the Joint Board has not yet
acted pursuant to the agreed-upon method for voluntary adjustment,
2 See Pittsburgh Plate Glass Company, 125 NLRB 1035, where the Board ruled that it
would not be "reasonable to adopt such a construction of procedural language to override
the plain purport of the substantive provisions in Section 10(k) favoring voluntary
methods for adjustment of jurisdictional disputes "
a Cf. National Association of Broadcast Engineers and Technicians , 0.1.0 , Hollywood
Chapter ( National Broadcasting Company, Inc .), 105 NLRB 355, 364.
' United Brotherhood of Carpenters and Joiners of America, Local 943, A F. of L.
( Manhattan Construction Company, Inc.), 96 NLRB 1046.
5 A. W Lee, Inc, supra.
1758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we would still quash the notice of hearing. In these circumstances, we
deem it appropriate to permit the parties to resolve this question by
continued resort to the Joint Board procedures. We therefore make
no finding on whether or not the Joint Board has finally decided the
dispute but shall instead quash the notice of hearing.
[The Board quashed the notice of hearing.]
Stamford Printing Pressmen and Assistants ' Union Local #317,
International Printing Pressmen and Assistants' Union of
North America ; and International Printing Pressmen and
Assistants' Union of North America and The O'Brien Subur-
ban Press, Inc. Case No. 92-CD-222. July 31, 1962
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10 (k) of the Act following a
charge filed by The O'Brien Suburban Press, Inc., herein called the
Employer, against Stamford Printing Pressmen and Assistants'
Union Local #317, International Printing Pressmen and Assistants'
Union of North America, and against International Printing Press-
men and Assistants' Union of North America, both Unions herein
called the Pressmen, alleging that the Pressmen illegally coerced the
Employer in an effort to change work assignments in favor of employ-
ees represented by the Pressmen. A duly scheduled hearing was held
before Marvin B. Morganbesser, hearing officer, on November 21, 1961.
The Employer, the Pressmen, and Norwalk Typographical Union
Local 529, International Typographical Union, herein called Local
529, appeared at the hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to adduce evi-
dence bearing upon the issues. The rulings of the hearing officer made
at the hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record the Board makes the following findings :
1. The Employer, a Connecticut corporation, maintains its principal
office and place of business at 116 Main Street, Norwalk, Connecticut,
where it is engaged in the printing and sale of publications. During
the past year the Employer performed services valued at an amount
in excess of $1,600,000 for firms located outside the State of Connecti-
cut. During this same period, the Employer received from directly
without the State of Connecticut goods valued at an amount in excess
of $200,000. Consistent with the stipulation of the parties, we find
that the Employer is engaged in commerce and that it will effectuate
the policies of the Act to assert jurisdiction.
137 NLRB No. 196.