Laborers, Local 423Download PDFNational Labor Relations Board - Board DecisionsMay 31, 1973203 N.L.R.B. 1015 (N.L.R.B. 1973) Copy Citation LABORERS , LOCAL 423 Local 423, Laborers ' International Union of North America, AFL-CIO and V & C Brickcleaning Co. and Bricklayers and Allied Masonry Trades, Local 55, Bricklayers, Mason and Plasterers International Union. Case 9-CD-251 May 31, 1973 SUPPLEMENTAL DECISION AND ORDER DENYING MOTION FOR RECONSIDERATION On September 29, 1972, the National Labor Rela- tions Board issued a Decision and Order Quashing Notice of Hearing' in the above-entitled proceeding in which it found that all the parties involved in the jurisdictional dispute had agreed to be bound by a determination of the National Joint Board for the Settlement of Jurisdictional Disputes of the Building and Construction Trades Industry, herein called the Joint Board, notwithstanding the fact that Local 423, Laborers' International Union of North America, AFL-CIO, herein called Laborers, had earlier been placed in a status of noncompliance with the Joint Board. Thereafter, on October 18, 1972, Laborers filed a Motion for Reconsideration, in which it alleged that it was unlawfully placed in a status of noncompliance by the Joint Board, and requested oral argument. Oral argument was held on December 11, 1972, at which appearances were made by counsel for Laborers, Bricklayers and Allied Masonry Trades, Local 55, Bricklayers, Mason and Plasterers International Union, herein called Bricklayers, the Joint Board, and the Associated General Contractors. Subsequent to the oral argument , Laborers and Associated General Contractors filed briefs, the latter being an amicus curiae brief in support of the Laborers Motion for Reconsideration. The Board, having duly considered Laborers Mo- tion for Reconsideration, the oral argument , and the briefs filed by Laborers and Associated General Con- tractors, has decided to deny the motion. The issue before us is a narrow one: whether a union, having agreed with the other necessary parties to be bound to the National Joint Board for the Settle- ment of Jurisdictional Disputes, can by the simple act of refusing to comply with an award of That board terminate its obligation to submit jurisdictional dis- putes to that board and thereby eliminate what had previously been an "agreed-upon" method for the vo- luntary settlement of such disputes within the mean- ing of Section 10(k) of the Act. ' 199 NLRB No. 48 1015 We think the mere act of noncompliance with one or more decisions of the Joint Board does not consti- tute a revocation or abrogation of the previously ex- isting "agreed-upon" method for settling juris- dictional disputes. In other areas, one party's failure to comply with an arbitration award does not elim- inate the entire grievance-arbitration machinery the parties have created. Instead, the parties are left to enforcement of each such an award through the usual judicial process, and the grievance-arbitration ma- chinery remains in place and in effect for disposition of the next such dispute as may occur. Nor does a breach of a collective-bargaining agreement necessar- ily terminate the agreement, nor in the interest of stable labor relations should it. We perceive no reason why the rule should be different with respect to "agreed-upon methods" for settling jurisdictional dis- putes. Rather, it appears that, where an "agreed-upon" method has been formally and deliberately created by the parties, stability in labor relations requires a delib- erate and formal withdrawal from such procedure be- fore it will be considered no longer effective and binding. The record before us contains no evidence, apart from the noncompliance with the Joint Board's awards, indicating any such withdrawal from the pre- viously agreed-upon method. Accordingly, we con- clude that there remains in effect the previously established method, "agreed upon" within the mean- ing of Section 10(k) of the Act, for resolving this juris- dictional dispute. Although the evidence before us does not establish a withdrawal from the agreed-upon method, we do not imply that such withdrawals may not be made in a timely and appropriate manner. The parties may establish reasonable rules for withdrawals as to times and procedures, and such rules may control the bind- ing effect of existing "agreed-upon methods" for re- solving these disputes. The absence of such provisions for withdrawal need not mean the parties, once bound to an agreed-upon method, are bound to it forever; for the Board in the somewhat similar situation of union constitutions and bylaws providing for no ef- fective means of resignation, or checkoff authoriza- tions which apparently are irrevocable, has found means to permit resignation or revocation.2However, a withdrawal after a jurisdictional dispute arises should, we think, not remove that dispute from the Joint Board's jurisdiction.' 2 Union membership resignations : Aeronautical Industrial District Lodge 751, affiliated with the International Association of Machinists & Aerospace Workers, AFL-CIO (Boeing Co.), 173 NLRB 450. Checkoff authorizations: Stainless Steel Products, Inc., 157 NLRB 232. 3 Cf. the analogous rule in multiemployer bargaining , where withdrawals from the unit may not be made after bargaining has commenced . Retail Associates, Inc., 120 NLRB 388. 203 NLRB No. 176 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In none of the foregoing do we imply any decision as to whether withdrawal from Joint Board proce- dures is inhibited by a union 's affiliation with the Building and Construction Trades Department, AFL-CIO. Whatever effects withdrawal from Joint Board procedures may have upon affiliation with the Building and Construction Trades is a matter for the internal rules of the department. Accordingly , we shall deny the Motion for Recon- sideration. ORDER It is hereby ordered that the Motion for Reconsid- eration be, and it hereby is, denied. MEMBER KENNEDY , dissenting: I adhere to the view expressed in my dissent to the original Decision and Order Quashing Notice of Hearing herein.' This case cannot be distinguished in principle from Lathers Local Union No. 62, Wood Wire & Metal Lathers International Union, AFL-CIO (Belou & Co. Accoustics, Inc.), 150 NLRB 21, 25. The Board there refused to quash a 10(k) notice of hearing and stated: In addition , although these Unions are subject to the jurisdiction of the National Joint Board, un- der its rules and regulations that board will not determine a dispute where , as here , both Unions are in "non-compliance" with said rules , but will direct that the employer may proceed with the disputed work on the basis of its original assign- ment. We do not regard the refusal to make a determination as an affirmative determination on the merits . Accordingly , we find that there is no agreed-upon method of settlement, and we shall proceed to a determination of the merits of the dispute. In the instant case only the Laborers are in a noncom- pliance status . It cannot be said, however, that there is an agreed-upon method of settlement so long as the rules and regulations of the Joint Board preclude is- 4 199 NLRB No. 48. 4. suance of a decision in favor of the noncomplying Laborers. The Supreme Court has noted that "It is clear that Congress intended to protect employers and the pub- lic from the detrimental economic impact of `indefen- sible 'jurisdictional strikes." See N. L. R. B. v. Plasterers Local Union No. 79, et al., 404 U.S. 116 (1971). The Court there held that the Board is "required" by Sec- tion 10(k) of the Act to proceed to determine jurisdic- tional disputes unless all parties have agreed to settle their differences . The Board's responsibility under Section 10(k) of the Act was discussed at great length and the Court reemphasized that it had held earlier in the CBS case 5 that Congress had expressed a clear preference for Board decision as a means of resolving jurisdictional disputes, absent agreement of all par- ties, and that this policy preference must be respected. Indeed, it seems to me that by its decision herein the Board majority has once again reverted to the same narrow "conception of its duty" under Section 10(k) of the Act which was totally rejected by the Supreme Court in the CBS case. Section 10(k) pro- vides that: 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 satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. [Emphasis supplied.] The Supreme Court's final observation in the CBS case is equally applicable here. The Court stated: We conclude therefore that the Board 's inter- pretation of its duty under § 10(k) is wrong and that under that section it is the Board's responsi- bility and duty to decide which of two or more employee groups claiming the right to perform certain work tasks is right and then specifically to award such tasks in accordance with its decision. In my view we have a clear statutory mandate to decide this case on the merits. 5 N LR B v. Radio and Television Broadcast Engineers Union [CBS], 364 U.S. 573, 586 (1961). Copy with citationCopy as parenthetical citation