Local 502, International Hod Carriers, Etc

National Labor Relations Board - Board Decisions

Jan 18, 1963

140 N.L.R.B. 694 (N.L.R.B. 1963)

694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representatives of their own choosing and to engage in concerted activities for the
purposes of collective bargaining, thereby violating Section 8 (a)( I) of the Act.
7. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
8. Respondents have not engaged in the other violations of the Act alleged in the
complaint.
[Recommendations omitted from publication.]
Local 502, International Hod Carriers, Building and Common
Laborers Union of America , AFL-CIO [Cement-Work, Inc.]
and Ernest Fortunato . Case No. 28-CB-356. January 18, 1963
NOTICE
On November 29, 1961, Trial Examiner Owsley Vose issued his
Intermediate Report in the above-entitled proceeding, and on the same
date the proceeding was transferred to the Board. Thereafter, the
General Counsel filed exceptions to the Intermediate Report and a
supporting brief.
On the basis of his findings of fact concerning the pressures of Re-
spondent, Local 502, International Hod Carriers, Building and Com-
mon Laborers Union of America, AFL-CIO, against Cement-Work,
Inc., the Employer, to secure certain cement form stripping work, and
the Employer's subsequent consequential termination of certain car-
penters, the Trial Examiner, in his Intermediate Report, viewed this
case as presenting all the essential elements of a violation of Section
8 (b) (2). On the other hand, the Trial Examiner considered the facts
presented as also establishing a jurisdictional dispute, within the mean-
ing of Sections 8(b) (4) (D) and 10(k), between the Respondent and
Essex County and Vicinity District Council of United Brotherhood of
Carpenters and Joiners of America, hereinafter referred to as Car-
penters. The Trial Examiner concluded that the Act required that all
issues pertaining to jurisdictional disputes must first be considered
under Sections 8 (b) (4) (D) and 10 (k) before they could be considered
as violative of any other section of the Act. Accordingly, as the Gen-
eral Counsel had not followed such a procedure, the Trial Examiner
recommended the dismissal of the 8(b) (2) allegations of the com-
plaint. He also recommended the dismissal of certain 8(b) (1) (A)
allegations of the complaint, on the ground that the conduct alleged
to be violative of Section 8(b) (1) (A) was inextricably interwoven
with the same jurisdictional dispute issue.
The Board is of the opinion that the facts show that a jurisdictional
dispute exists here, as the Trial Examiner found. The Board is of the
further opinion that if Respondent's members were shown to be en-
titled to the disputed work assignment, Respondent could then have
asserted such right as a defense to the 8 (b) (2) and 8 (b) (1) (A) allega-
140 NLRB No. 69.
LOCAL 502, INTERNATIONAL HOD CARRIERS, ETC. 695
tions of the complaint. Accordingly, the Respondent having con-
tended, and the Trial Examiner having found, that an underlying
jurisdictional dispute existed herein, and the Board having duly con-
sidered the matter, we find that it would effectuate the policies of the
Act in the instant case to permit the Respondent to introduce evidence
as to whether or not the Respondent's members who were employed
by the Employer were entitled to the disputed work. However, the
Board is also of the opinion that, in these circumstances, the parties,
including the Carpenters involved, should, before the Board directs a
further hearing, be given an opportunity to show that they have ad-
justed the work assignment disputed herein or that they have agreed
upon methods for the voluntary adjustment thereof.
Accordingly, notice is hereby given that unless within 10 days after
receipt of this notice the parties, including the Carpenters if they so
desire, submit to the Board satisfactory evidence that they have ad-
justed the jurisdictional dispute herein, or have agreed upon methods
for the voluntary adjustment thereof, the Board will direct that a
further hearing be held before Trial Examiner Owsley Vose for the
purpose of receiving all relevant evidence concerning whether mem-
bers of the Carpenters or of the Respondent were entitled to the work
assignment in dispute.
MEMBERS RODGERS and LEEDOM, dissenting :
In our opinion, jurisdictional issues, or rights, under Sections 10 (k)
and 8(b) (4) (D) are not properly asserted here as defenses to allega-
tions under Section 8 (b) (1) (A) and 8 (b) (2). Accordingly, we would
not issue the instant Notice, nor would be remand this proceeding for
further hearing as the Notice apparently contemplates. We would,
instead, proceed to consider the Section 8(b) (1) (A) and the Section
8 (b) (2) allegations on their merits.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF' THE CASE
This proceeding, in which the General Counsel and Respondent were represented
by counsel, was heard before Trial Examiner Owsley Vase on various dates com-
mencing on August 8, 1961, and ending on August 17, 1961, upon the amended
complaint of the General Counsel against the Respondent labor organization, Local
502, International Hod Carriers, Building and Common Laborers Union of America,
AFL-CIO, herein called the Laborers. The briefs filed by the General Counsel
and the Respondent have been fully considered.
The material allegations of the complaint are that the Respondent Laborers, by
physically interfering with nonmembers of the Laborers in the performance of
the work assigned to them by their Employer and by engaging in a strike for the
purpose of requiring the Employer to assign work to its members which the Em-
ployer had previously assigned to nonmembers, has caused the Employer to termi-
nate the employment of 12 nonmembers because they were not members of Re-
spondent Laborers, thereby engaging in unfair labor practices in violation of
Section 8(b)(2) and 8(b)(1)(A) of the National Labor Relations Act. The Re-
spondent Laborers defends its conduct upon the grounds, inter alia, that it was
engaged in a jurisdictional dispute with Essex County and Vicinity District Council
of United Brotherhood of Carpenters and Joiners of America, herein called the
Carpenters, and that such jurisdictional disputes are cognizable exclusively under
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sections 8(b) (4) (D) and 10(k) of the Act. Accordingly, the Laborers contends,
since no violations of Section 8(b)(4)(D) are alleged in the amended complaint,
that the amended complaint must be dismissed.
Upon the entire record and upon my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE JURISDICTION OF THE BOARD
Cement-Work, Inc., herein called the Employer, is a building contractor having
its principal office in East Orange, New Jersey, where it is engaged in furnishing
services in the masonry, concrete construction, and the carpentry field. During the
year prior to the hearing the Employer has caused to be delivered to it in New Jersey
in excess of $750,000 worth of materials, of which more than $175,000 worth were
shipped to it from out-of-State sources. Upon these facts, I find that the Employer
is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, as
the Laborers admit, and that it will effectuate the policies of the Act to assert juris-
diction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The Laborers and the Carpenters are labor organizations within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Employer has a contract with Taylor International Corporation to provide
certain masonry and concrete construction work on a large apartment project at
East Orange, New Jersey. The project includes a two-deck garage at the rear of
the apartment. In the performance of its work under the contract, the Employer
employs, among others, members of both the Laborers and the Carpenters.
In brief, this case involves a dispute over whether members of the Laborers or
members of the Carpenters are entitled to perform the stripping and carrying work
connected with the removal of wooden and steel forms from the hardened concrete
in the lower deck of the garage. The "carrying work," as the term implied, involves
the carrying of the wooden or steel forms to the next point of erection in the
building The erection work is done by members of the Carpenters. As found
below, the actions of the Laborers in this case which are alleged to be unfair labor
practices were taken in support of its claim that its members were entitled to perform
the work tasks in controversy. The Employer had assigned the stripping work to
carpenters and the carrying work to laborers.'
On October 3, 1949, the United Brotherhood of Carpenters and Joiners and the
International Hod Carriers, Building and Common Laborers Union entered into
an agreement providing in part as follows-
MEMORANDUM ON CONCRETE FORMS
1. On stripping of panel forms to be re-used again, the releasing shall be
done by members of the United Brotherhood of Carpenters and Joiners of
America.
2. The moving, cleaning, oiling and carrying to the next point of erection,
and the stripping of forms which are not to be re-used, and of forms on all flat
arch work shall be done by members of the International Hod Carriers, Building
and Common Laborers' Union.
3. It is understood that there shall be no stoppage of work by reason of any
dispute concerning the work herein covered....
While the issues in this case do not require a precise construction of these provisions,
a knowledge of the interpretations placed upon these provisions by the contesting
unions herein affords helpful background information in this case. The Carpenters,
as the testimony of Gerard Sassone, its business representative, and other members
of the Carpenters reveals, construes these provisions as allocating to its members both
the stripping and carrying work connected with the removal of all panels or forms
1 For convenience, hereafter I refer to members of the Carpenters as carpenters and
members of the Laborers as laborers. All of the employees here involved were members
either of some local union affiliated with the United Brotherhood of Carpentera and
Joiners of America or of Local 502 of International Hod Carriers, Building and Common
Laborers Union.
LOCAL 502 , INTERNATIONAL HOD CARRIERS , ETC. 697
which are to be used again on the same project. The Laborers contends that the
agreement contemplates that its members shall perform all carrying work con-
nected with the stripping of concrete forms, and, that, in addition, its members shall
do the stripping of all pieces which are not to be reused on the project, and also the
stripping of all "flat arch work."
B. The commencement of stripping operations in the garage
Stripping operations in the first section of the garage were commenced on
Monday, February 27, 1961. For the first 3 days of that week, three carpenters,
namely, Shop Steward Daniel Petricelli,2 Stephen Andalora, and Eddie Finan, per-
formed stripping operations upon assignment by the Employer's carpenter foreman.
Two to four laborers were in the area cleaning the stripped forms. It appears that
at the beginning the laborers were doing the carrying work but stopped after Gerard
Sassone, the business representative of the Carpenters, asserted that the carrying of
the pans and forms, which were to be reused on the second section of the garage, was
the work of the carpenters.3
On Wednesday evening, March 1, Business Representative Sassone received a tele-
phone call from the Carpenters shop steward, Daniel Petricelli, informing him that
the laborers were threatening to take the stripping work away from his carpenters.
Consequently, Sassone went to the project before the men commenced work on
Thursday morning, March 2. He instructed his men to continue with their stripping
and carrying operations but not to get into any fights with the laborers.
C. The laborers' efforts to stop the carpenters from performing their
stripping operations
1. The events of March 2
The carpenters continued doing both the stripping and the carrying work without
incident until Daniel Petricelli, the president and business agent of the Laborers, hap-
pened by the project Thursday afternoon, March 2. Standing on the upper deck of
the garage, above where the carpenters were engaged in stripping operations, Presi-
dent Petricelli observed men he knew were not members of his organization carry-
ing forms out from underneath the lower deck of the garage. When he questioned
Ozzie Fabrisio, the Laborers' shop steward on the project, about these men who were
doing the carrying, he was informed that Business Agent Sassone had claimed this
work for the carpenters. President Petricelli thereupon angrily denounced Sassone,
and asserted that this was work which was assigned to the laborers.' At the same
time Petricelli ordered Fabrisio to get his laborers on the job, warning him that if
his men on the project would not do the work, he (Petricelli) would get someone on
the job who would.
At the time of Laborers' President Petricelli's visit to the project on Thursday,
March 2, about eight carpenters were engaged in stripping and carrying work. Four
laborers were in the same area cleaning nails out of the forms which had been
removed. After Petricelli's visit, Laborers' Shop Steward Fabrisio appeared in the
garage, accompanied by some of the laborers from the main building and other
parts of the project. According to the credited testimony of Joseph Pizutelli, Shop
Steward Fabrisio "told his laborers to stop us from stripping by grabbing our bars."
Stephen Andalora, another of the carpenters who was engaged in stripping work on
March 2, credibly testified as follows:
Q. I direct your attention to Thursday, which would be March 2nd. What
type of work were you doing on March 2nd?
A. Well, we went in to strip.
2 Shop Steward Daniel Petricelli is not to be confused with the Daniel Petricelli who
the president and business agent of the Laborers.
R There is testimony that the Employer initially assigned both the stripping and carry-
1,i, work to laborers , but discontinued this assignment 2 hours later after receiving a
'rotest from the Carpenters' shop steward . Assuming this fact to be true, it does not
'iiTect the decision in this case in any way since the Employer's assignment in effect at
the time of the alleged unfair labor practices was that the carpenters should perform
the stripping work and the laborers should do the carrying of the forms to the next point
-f erection.
4I find that President Petricelli here had reference to the agreement between the two
Inte,nationals in which they attempted to draw the demarcation line between the work
tasks of members of affiliates of both organizations in connection with the stripping of
concrete work
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Anything unusual happen?
A. Yes. The laborers came over and they stopped us from stripping.
Q. Will you tell us from where the laborers came?
A. Well, some came off the building. They were called by the shop steward,
the labor shop steward, called them off the building, and some came from the
garage, on the other part of the garage.
Q. You say they stopped you from stripping?
A. Yes.
Q. How did they stop you from stripping?
A. As we went to pull the plywood down, they would put their hands on
the plywood, stop us from pulling it down, or some guys grabbed the bars out
of our hand.
Q. Would these be wrecking bars?
A. That's right.
Q. Then what happened?
A. Well, we automatically stopped... .
Q. How long did this last?
A. Well, until we stopped trying to do the work. Then they would stop.
Q. And what would they do? Would they go anywhere?
A. Well, then they left. After we stopped the stripping part, then they would
leave.
Q. Would you then at a later time attempt to strip again , or did you?
A. Yes, we did attempt to strip later on.
Q. And then what happened?
A. They came off the building. Ozzie [the Laborers shop steward] called
them in from the building and also from the other part of the garage, whichever
the men were working, and they came over and they did the same thing.
The testimony of Joseph Pizutelli, which I credit, fully corroborates that of Andalora
concerning the laborers' physical interference with the carpenters' efforts to perform
stripping work on March 2.
2. The events of March 3
The actions of the laborers on March 2 were reported to Carpenters' Business
Representative Sassone that evening. Sassone went to the project at 7:30 a.m. on
March 3. Twelve carpenters had been assigned to do stripping work in the garage
on this occasion by Tony Catalfamo, the Employer's carpenter subforeman .5 Sassone
gathered the carpenters around him and instructed them to do the work which had
been assigned to them, but not to get into any arguments or fights, and that if
anyone attempted to take materials away from them, to "just stand there."
After the carpenters commenced work at 8 a.m., Shop Steward Fabrisio sent
one of the laborers who was assigned to cleaning work in the garage to go over to
the main building to summon additional laborers. When these laborers arrived,
Fabrisio instructed them to "cover" the various carpenters, and added, as Ernest
Fortunato credibly testified, "Any man you see trying to strip, or handle the
material, just put your hands on it and stop him." When the carpenters attempted
to strip, the laborers stood in front of them so that the carpenters could not use their
wrecking bars and other tools. As Peter Catalfamo credibly testified, "Every time
we picked something up to move it, they would either grab it from our hands or
step on it. And that just kept on and on, and we tried to strip something they
knocked the bars from our hands."
Laborers stood underneath the plywood panels and pushed them up when the
carpenters were trying to loosen them. In one instance, laborer Jerry Funicelli
stood beneath the plywood panel which carpenter Joseph Pizutelli was loosening
with a wrecking bar and angrily shouted, "if the plywood would fall he would rap"
5 There is a conflict in the testimony as to whether the carpenters were also assigned
the carrying work on this occasion . Carpenters' Business Representative Sassone testified
`hat he was present when the assignment was made and that Catalfamo specifically as-
signed both the stripping and carrying work to carpenters The testimony of Laborers'
President Petricelli and Shop Steward Fabrisio suggests that the Employer assigned the
carrying work on this occasion to laborers . However, President Petricelli was not on the
scene on the morning in question and had no firsthand knowledge of this specific assign-
ment. As noted hereinafter, Fabrisio did not impress me as a witness. In any event, it
is not necessary for me to resolve the conflict as to the carrying assignment on March 3,
for, as found below, it was not a dispute over carrying, but rather the laborers' in-
sistence upon performing the stripping work throughout the whole controversy which
precipitated the Employer 's discharge of the 12 carpenters here involved
LOCAL 502, INTERNATIONAL HOD CARRIERS , ETC. 699
Pizutelli. When the plywood fell, Funicelli approached Pizutelli "as if to, you
know, swing," and pushed him back by the shirt. Laborers Shop Steward Fabrisio
was standing about 6 or 7 feet away at this time.6
When the carpenters attempted to carry their materials, the laborers, as Albert
Fortunato testified, "Took it out of our hands or off our shoulder, if it was on
our shoulders, or stood on it before we could pick it up." Upon encountering
such interference with their stripping and carrying operations, the carpenters "just
stood around," not doing any work. After an interval of standing around, the
laborers returned to the main building to attend to the various tasks to which they
had been assigned. After the departure of the laborers, the carpenters again com-
menced their stripping operations. Upon a signal from one of the laborers in the
garage, the laborers returned to the garage from the main building and other parts
of the project and in the same manner prevented the carpenters from engaging in
stripping and carrying work. After a third attempt by the carpenters to do stripping
work on Friday morning, which met with the same kind of interference from the
laborers, the carpenters gave up and stood around, doing no further work that
morning.
Pursuant to instructions from Carpenters' Business Representative Sassone, the
carpenters made three attempts to perform stripping and carrying work after lunch
on Friday afternoon. Each time they did so, Shop Steward Fabrisio, who remained
in the garage, summoned laborers from the main building, and the laborers again
prevented the carpenters from doing any stripping and carrying work in the same way
they had during the morning incidents 7
About 2 p.m., on Friday, March 3, David Lieb, the Employer's field superintendent,
arrived at the garage. His bricklayer superintendent had complained to him that the
laborers who were supplying materials to the bricklayers had left their assigned jobs
and that this was creating a serious situation for the bricklayers. Observing an un-
usual number of laborers in the garage and that all the men appeared to be just
standing around, he asked Laborers' Shop Steward Fabrisio what was going on
Carpenters' Shop Steward Petricelli spoke up and said that the "stripping belonged
to the Carpenters." Whereupon Laborers' Shop Steward Fabrisio claimed this work
for the laborers When Lieb asked Fabrisio why he had all the laborers in the garage,
he replied, "Well, we have to protect our work." 8 In an effort to resolve the
controversy, Lieb suggested that "maybe the carpenters could strip and the laborers
could carry until [hel got a decision on it." Whereupon the carpenters again sought
to start stripping. However, some of the laborers reached up and attempted to
strip the same pieces which the carpenters were working on from the opposite end.
e Funicelli denied threatening to "rap" Pizutelli and pushing him away Funicelll's
version of the Incident Is that the plywood almost hit him but that he caught it and
eased it to the floor Pizutelli impressed me as a credible witness and I credit his testi-
mony quoted in the text above
The foregoing findings are based upon the mutually corroborative testimony of Joseph
Pizutelli, Anthony Camposeo, Peter Catalfamo, Eldred Bullard, Albert Fortunato, Ernest
Fortunato, and Stephen Andalora, who uniformly testified that the laborers sought to
prevent the carpenters from stripping, as well as carrying Carpenters' Business Repre-
sentative Sassone testified to the same effect. Although at least as many if not more
laborers were involved in the incidents in question as were carpenters , the Laborers
chose to call as witnesses In its behalf only Shop Steward Fabrislo and Jerry Funicelli
The latter was questioned solely about the specific incident involving him and Joseph
Pizutelli Shop Steward Fabrisio testified in effect that the Laborers did not attempt to
prevent the carpenters from stripping , that his organization was only interested in the
carrying work , and that when the laborers "tried to start carrying it seemed like the
carpenters were grabbing out of our hand" In such circumstances , Fabrisio testified,
"We would turn around and grab it out of their hand " With respect to the stripping
work, Fabrisio implies that the laborers , in placing their hands on the forms and pans
which the carpenters were attempting to strip, were merely seeking to ease these forms
to the floor, which was a part of the laborers ' job of carrying . Fabrisio did not impress
me as a credible witness He appeared prone to make sweeping statements supporting the
Laborers' contention that the whole controversy was merely a squabble over the carpenters
claiming the carrying work, and failed to include in his testimony the kind of detail
which lends persuasion . In the face of the cumulative testimony to the contrary, and in
view on the logic of the whole situation , I do not credit Fabrislo 's uncorroborated testi-
mony concerning the nature of the laborers' conduct in the incidents in question
8 These findings are based on the testimony of Field Superintendent Lieb, which I credit
for reasons stated more fully below . Lieb's testimony In this regard is largely denied by
Shop Steward Fabrislo . I do not credit Fabrislo 's denials.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Lieb commented that this "is not any good," the two shop stewards suggested
his taking the dispute up with the "delegates" of the two unions. Lieb agreed and
the stripping work apparently was discontinued at this time.9
Lieb called Laborers' President Petricelli on the telephone, told him that "there
was some dispute as to the stripping and the carrying," and that he "could not take
much of this." Petricelli insisted that Leib keep the laborers "on their work."
When Lieb replied that the "Carpenters won't go along," Petricelli retorted that the
stripping of flat arch work was "the laborers' and not the carpenters'." 10 At Lieb's
request, President Petricelli came to the project about 3:30 p.m. However, Lieb's dis-
cussions with Carpenters' Business Representative Sassone and Laborers' President
Petricelli were not fruitful, as each representative claimed the stripping work for mem-
bers of his organization and the meeting ended in an angry interchange between the
two union representatives."
3. The events of March 6
Following his unsuccessful efforts to induce the two business agents to resolve the
controversy, Field Superintendent Lieb sought the assistance of the National Joint
Board for Settlement of Jurisdictional Disputes in resolving the controversy. He
was advised by the office of that organization that it could not proceed in the absence
of an affirmative assignment by the Employer. Thereafter, he instructed his carpenter
foreman, Julius Camposeo, to inform the men before work Monday morning,
March 6, that the carpenters were to strip "for the time being" and the laborers were
to carry.
The record does not disclose how Camposeo relayed his instructions as to the divi-
sion of the work on to the men. In any event, the carpenters commenced working on
this occasion and continued to do so for about 20 minutes without interruption. At
this point Laborers' Shop Steward Fabrisio came into the garage and, after observing
the carpenters working, ran back to the main building and brought back with
him a group of laborers to the garage. The laborers resumed their activities of
Thursday and Friday of the past week, standing in the way of the carpenters, hold-
ing up the material which the carpenters were attempting to pry loose, taking mate-
rials out of their hands, and standing on their materials and tools. Three times
the carpenters tried to do stripping work on Monday morning, and each time the
laborers came back to the garage and interfered, as described above. About 9:30 a.m.
the carpenters gave up the attempt and stood around, not working, until lunchtime.
The carpenters again attempted to perform stripping and carrying work after lunch
on Monday, but the results were the same, the laborers again came over from other
parts of the project and interfered as before. Field Superintendent Lieb arrived at
the garage during one of the incidents in the afternoon of March 6 and observed two
or three carpenters attempting to lift one end of an A-frame (the jacks which are
used to support the forms and panels above) and two laborers holding on at the
other end. Concluding that this was "a lot of nonsense," Lieb issued orders that the
carpenters be laid off. When Sassone protested, Lieb said, "Well, I can't pay your
men for standing around." Sassone rejoined , "You are paying laborers for coming
down out of the building and stopping the carpenters from working, . you can
pay my men too." Lieb replied that "he couldn't do that, he would have to lay
them off." All 12 carpenters here involved were laid off about an hour later.
0 The foregoing findings are based on the credited testimony of Field Superintendent
Lieb
10 The above findings are based on President Petricelli 's testimony . Petricelli admitted
that up until this time he had not been in the lower deck of the garage and had not
observed the type of ceiling construction there. Petricelli further admitted in his testi-
inony that after the material events in this case he was informed that pans were used
in the construction of the garage ceiling and that these pans or forms , after being stripped,
were intended to be taken to the next point of erection and used again.
"The foregoing findings as to the respective jurisdictional claims of the two labor
organizations are based primarily on the credited testimony of David Lieb, the Employer's
field superintendent , who impressed me as being neutral in the controversy between the
two unions At the hearing both Laborers' Shop Steward Fabrisio and Laborers' President
Petricelli testified that at this time the laborers were only claiming the carrying work
Not only is their testimony contrary to Lieb's, but it is also inconsistent with the tesi-
nicny of all the carpenters that the laborers continued physically to interfere with them
in the performance of their stripping , as well as their carrying work. And , as found
above, President Petricelli admitted that in his telephone conversation with Lieb he
claimed the stripping of "flat arch work" for the laborers.
LOCAL 502, INTERNATIONAL HOD CARRIERS , ETC. 701
Included in their pay envelopes were slips stating as follows:
You have been directed to do certain work. Because of jurisdictional inter-
ference, you are unable to perform this work.
At the hearing Lieb explained his termination of the carpenters on the grounds
that "at that particular time [he] was doing the brickwork" on the main building,
and that the controversy between the laborers and the carpenters was going to
"hamper" that operation in that the laborers "would come away from the building
... to protect their work," thereby leaving the bricklayers partially unattended and
rendering the bricklaying an inefficient operation. The stripping work in the first
section of the garage was only work Lieb had available for the carpenters at that
time, as Lieb credibly testified.
As indicated above, it is the Laborers' contention that the facts of the case show
that throughout this controversy it was merely attempting to protect the right of its
members to perform the carrying work which it asserts the carpenters were taking
away from it. The Laborers, of course, relies on the testimony of Shop Steward
Fabrisio, previously discussed. In addition, the Laborers stresses particularly Field
Superintendent Lieb's testimony concerning the events of the afternoon of March 6.
when he terminated the 12 carpenters. Specifically, the Laborers contends that
Lieb's testimony shows that it was only after he observed two or three carpenters
tussling with two laborers over carrying an A-frame that he decided to let the
carpenters go, and that therefore it should be concluded that Lieb dismissed the
carpenters upon his own initiative because of their failure to observe his instruc-
tions to have the laborers do the carrying. I do not regard Lieb's testimony concern-
ing this incident as having the controlling significance which the Laborers attributes
to it Lieb on this occasion, in my opinion, was discussing the latest incident in the
continuing dispute between the two unions. He previously had personally observed,
as his testimony above discussed discloses, laborers attempting to strip the very same
pieces carpenters were working on. As Lieb's testimony reveals, it was the absence
of the laborers from their assigned jobs in and about the main building which
concerned him.
While the carpenters had been attempting to do carrying work on this as well as on
previous occasions, the principal bone of contention between the two unions was the
Laborers' claim that its members were entitled to the stripping work in the garage.
This is shown by the Laborers' entire course of conduct since President Petricelli
appeared at the garage on March 2 and instigated the laborers' intermittent work
stoppages and other harassing tactics. I find that, absent the Laborers' claim of this
stripping work, the disagreement between the two labor organizations would not have
become intensified to the point where the Employer was compelled to terminate
the 12 carpenters.
D. Conclusions concerning the alleged unfair labor practices
1. The contentions of the parties
The General Counsel contends that the facts set forth hereinabove establish that
the laborers, at the instigation of the Laborers' president, engaged in a strike and
physical violence "to force the [employer] to assign the stripping work to its mem-
bers" rather than to members of the Carpenters, and that such conduct constitutes
causing the Employer to discriminate against the Carpenters in violation of Section
8 (b) (2) and (1) (A) of the Act. The General Counsel further contends that the
laborers' physical interference with the carpenters in the performance of stripping
work constitutes an independent violation of Section 8(b) (1) (A) of the Act. On
the other hand, the Laborers contends that the facts of the case establish the existence
of a jurisdictional dispute, and that Congress intended that such disputes could be
reached only under the provisions of Section 8(b) (4) (D) of the Act, and that since
there is no allegation in this case of a violation of Section 8(b) (4) (D), the complaint
herein must be dismissed.12
2. The pertinent statutory provisions
Section 8 (b)(2) makes it an unfair labor practice for a labor organization "to
cause or attempt to cause an employer to discriminate against an employee in viola-
12 The Laborers' alternative contention, based on its view of the facts of the case, that
it was the carpenters who were Interfering with the laborers in the performance of the
carrying work assigned to its members, has been rejected, as is apparent from the facts
hereinabove found.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of Section 8(a)(3) ..' Section 8(a)(3), in turn, provides that it shall be
an unfair labor practice for an employer "by discrimination in regard to hire or
tenure of employment or any term or condition of employment to encourage or
discourage membership in a labor organization ......
Section 8(b)(4) provides, in part, that it shall be an unfair labor practice for a
labor organization or its agents:
(i) to engage in . . . a strike or a refusal in the course of his employment
. . . to perform any services; or (ii) to threaten, coerce, or restrain any person
engaged in commerce or in an industry affecting commerce, where in either
case an object thereof is:
(D) forcing or requiring any employer to assign particular work to em-
ployees in a particular labor organization or in a particular trade, craft,
or class rather than to employees in another labor organization or in
another trade, craft, or class, unless such employer is failing to conform
to an order or certification of the Board determining the bargaining repre-
sentative for employees performing such work:
* * * * * * *
Section 10(k) of the Act is as follows:
Whenever it is charged that any person has engaged in an unfair labor
practice within the meaning of paragraph (4)(D) of section 8(b), 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 volun-
tary 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.
3. Recapitulation and analysis
Upon the facts set forth above, I find that Laborers President Petricelli asserted
jurisdiction over stripping work in the garage, and that pursuant to Petricelli's in-
structions, Shop Steward Fabrisio directed members of the Laborers as they engaged
in numerous intermittent work stoppages and various forms of physical interference
with the carpenters at work, such as grabbing their wrecking bars, holding up forms
which the carpenters were attempting to pry loose, and standing in their way so
that the carpenters could not work. I find that the objective of both the intermittent
work stoppages and the physical interference was to stop the carpenters from per-
forming the stripping work in question and to effect the assignment of this work to
members of the Laborers. I find further that the Employer desired to retain the
services of the 12 carpenters at the time of their termination, but got rid of them
solely because of the pressure placed upon it by the Laborers, in the form of inter-
mittent work stoppages and physical interference with the carpenters at work, to
assign the stripping work in question to members of the Laborers rather than to
members of the Carpenters. In such circumstances, the termination of the 12 car-
penters because they were members of the wrong union, so to speak, necessarily
had a tendency to discourage membership in the Carpenters and to encourage mem-
bership in the Laborers.
When the facts summarized above are considered solely in the light of Section
8(b) (2), without regard to the interrelation of Sections 8(b) (4) (D) and 10(k) and
Section 8(b)(2), they appear to present all the essential elements of a violation of
Section 8(b) (2). On the other hand, however, when the Laborers' conduct in this
case-its intermittent work stoppages and its physical restraint of carpenters in the
performance of their assigned duties, all of which was designed to force the Em-
ployer to assign the stripping work in the garage to its members rather than to
members of the Carpenters-is considered under Section 8(b) (4) of the Act it clearly
comes within subsections (i) and (D) thereof prohibiting refusals to perform
services with an object of forcing the employer to assign work to its members
rather than to members of another labor organization.
The Laborers' contention that its conduct herein must be judged under the pro-
cedures set forth in Section 8(b) (4) (D) and 10(k) rather than under Section
8(b)(2) and 8(b)(1)(A) thus raises the question of the proper construction of
Section 10(k) and its role in the scheme of the Act as a whole. It is a cardinal rule
of statutory construction that, provided the interpretation is reasonable and not in
conflict with the legislative intent, "if possible, effect shall be given to every clause
LOCAL 502, INTERNATIONAL HOD CARRIERS, ETC. 703
and part of a statute." D. Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 208. See
also Brotherhood of Locomotive Firemen, etc. v. Northern Pacific Railway Co., 274
F. 2d 641, 646-647 (C.A. 8), and authorities therein cited. Applying this principle
to the problem at hand it seems to me that the maximum effect can be given to all
of the provisions in question if it be concluded that the Section 10(k) procedure was
to be utilized first in all jurisdictional dispute situations. To hold that conduct com-
ing within the scope of Section 8(b) (4) (D), which may also come within the bounds
of Section 8(b) (2), may be reached under Section 8(b) (2) is to render Sections
8(b) (4) (D) and 10(k) virtually meaningless in many situations covered by Section
8(b)(4)(1)). The instant case is an example of just such a situation.
On the other hand, if reading these sections together one concludes that Congress
intended that the 10(k) procedure should be followed first in all jurisdictional dis-
pute situations, meaning and effect can be given to all of these provisions. If, after
the Board in the 10(k) proceeding has determined which of the contending labor
organizations is entitled to claim the work tasks in question for its members, the
losing union by conduct prohibited by Section 8(b)(4)(D) takes action contrary
to the Board's determination which has the effect of causing or attempting to cause
employer discrimination in violation of Section 8(a)(3) of the Act, then the Union's
conduct could properly be scrutinized under Section 8(b)(2), as well as under
Section 8(b) (4) (D). This construction gives content and meaning to both sets of
apparently inconsistent statutory provisions.
A contrary construction, in my opinion, would be inconsistent with the views ex-
pressed by the Supreme Court in N.L.R.B. v. Radio & Television Broadcast En-
gineers Union Local 1212, etc., 364 U.S. 573. In this case, the Supreme Court, re-
jecting the Board's narrow conception of its responsibilities under Section 10(k), held
that that portion of Section 10(k) empowering and directing the Board, whenever
charges of violations of Section 8(b) (4) (D) have been filed, "to hear and determine
the dispute out of which such unfair labor practice shall have arisen," requires the
Board to make an affirmative arbitration-type determination of the underlying work
assignment controversy, and specifically to award the work tasks in dispute to one
or the other of the contending labor organizations or groups. Prior to this decision,
the Board had refrained from making arbitration-type determinations of the under-
lying work assignment controversy in jurisdictional dispute situations, contenting itself
with determining whether the employer's assignment was contrary to an order or
certification of the Board or a collective-bargaining contract, and if not, finding that
the respondent union was not entitled to force or require the employer to assign the
disputed work tasks to its members. The Supreme Court's decision makes it clear
that under Section 10(k) the Board has the important responsibility of deciding "the
underlying jurisdictional dispute" (364 U.S. at 581). In my opinion, the Board
would be evading these responsibilities if it were to sanction the use of procedures
under Section 8(b) (2) of the Act to avoid having to make determinations under
Section 10(k).
As pointed out above, in some situations there is a basic inconsistency between
the operation of Section 8(b) (2) and Sections 8(b) (4) (D) and 10(k). Conduct
may be held to be legal or illegal depending upon whether it is scrutinized under
Section 8(b)(2) or under Sections 8(b)(4)(D) and 10(k). In addition, there is
a further inconsistency which is apparent on the face of Section 10(k). Section
8(b)(2) prohibits a labor organization from causing or attempting to cause em-
ployer discrimination against employees in violation of Section 8(a)(3). Section
10(k) by its terms contemplates that the Board shall be bound by whatever volun-
tary adjustment of the jurisdictional dispute is reached by the parties, regardless of
whether or not the adjustment involves the discharge of members of one union, who
had been originally assigned by the employer to the tasks in question, to make room
for members of the other union to the dispute. Such a disposition of the matter
would be plainly contrary to the provisions of Section 8(b) (2) and 8(a) (3). Section
8(b) (2) and Sections 8(b) (4) (D) and 10(k) were all embodied in the Act at the
same time, when Congress adopted the 1947 Taft-Hartley amendments. Congress
having approved the Section 10(k) procedure for the handling of jurisdictional
dispute situations at the same time it enacted Section 8(b)(2), despite its various
inconsistencies with Section 8(b)(2) and despite its possible encroachments on
employee rights under Sections 7 and 8(a) (3), it is reasonable to infer that
Congress intended to carve out an exception to the operation of Section 8(b)(2)
and 8(a)(3) in jurisdictional dispute situations.
This conclusion is reinforced by the history of the 1947 amendments which
indicates that jurisdictional strikes were a matter of special concern at that time
not only to the legislative branch, but to the executive branch as well. President
Truman in his state of the Union message to the 1st session of the 80th Congress
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had declared that strikes arising out of disputes "involving the question of which
labor union is entitled to perform a particular task" should be curbed. President
Truman further specifically advocated that when "rival unions are unable to settle
such disputes themselves, provision should be made for peaceful and binding deter-
minations of the issue" (93 Cong. Rec. 137).
The proceedings in Congress reveal that Congress regarded jurisdictional strikes
and disputes as wholly unjustified. The bill that passed the House of Representa-
tives contained provisions making jurisdictional strikes illegal without any procedure
for determination of the underlying dispute.13 The House Report on the bill speaks
of the "evils" of "jurisdictional strikes" in which the employers, and many times their
employees, as well, "are the helpless victims of quarrels that do not concern them
at all." H. Rept. 245, 80th Cong. 1st sess., 23-24 (I Leg. Hist. 314-315). For the
debates, see 93 Cong. Rec. 3329-3330, 3534, 4255-4256, 4416, 5107, 5146-5147,
7506, A1099, A1296 (I Leg. Hist. 583, 615, 926-927; II Leg. Hist. 993-997, 1012,
1056-1057,1157,1455,1496-1497).
Section 10(k) had its origin in a bill (S. 858) filed by Senator Wayne Morse
proposing limited revisions of the 1935' Act. Among the provisions of this bill was
Section 8(b)(2)(A) which would have made it an unfair labor practice for unions
to engage in strikes over the assignment of work tasks (93 Cong. Rec. 1913, II Leg.
Hist. 987). Senator Morse's Section 10(k) would have empowered the Board, or
an arbitrator appointed by the Board, "to hear and determine the dispute out of
which such unfair labor practice shall have arisen." (93 Cong. Rec. 1913; II
Leg. Hist. 987). As Senator Morse explained during the debates , he included this
provision as a result of his experience as a member of the War Labor Board, which
had taught him that the War Labor Board's policy of requiring arbitration of juris-
dictional disputes, if not settled within 24 hours, was a very effective means of
inducing contending unions to get together and quickly resolve work task disputes
upon their own initiative (93 Cong. Rec. 1910-1911; II Leg. Hist. 982-983). The
Morse proposal was incorporated in the legislation finally adopted, except that the
provision for the Board's appointment of arbitrators was omitted, leaving the
making of the decision up to the Board itself. This whole procedure is wholly
unlike that provided to prevent other unfair labor practices It provides for special
treatment of jurisdictional dispute situations. This special procedure of having the
Board itself, if a voluntary settlement is not forthcoming, make a "compulsory
determination" of the "underlying jurisdictional dispute," was adopted, as the Supreme
Court stated in the Radio Engineers case, in an attempt to remedy the "preexisting"
jurisdictional dispute situation, "a situation already found intolerable by Congress
and by all parties concerned" (364 U S. at 581, 580). The Court further stated (364
U.S. at 576-577) that:
Section 10(k) . quite plainly emphasizes the belief of Congress that it
is more important to industrial peace that jurisdictional disputes be settled per-
manently than it is that unfair labor practice sanctions for jurisdictional strikes
be imposed upon unions.
In view of the foregoing history it is reasonable to conclude that Congress
deemed the prevention of industrial strife arising out of jurisdictional disputes the
paramount consideration, and that it adopted the specialized procedure requiring
the Board to decide the underlying work-assignment dispute because it was of the
opinion that this was the most effective means of solving the jurisdictional dispute
problem . It is reasonable to infer also that Congress regarded the evil to be
remedied as being so serious that it was willing to adopt this procedure even though
it had side effects on the rights of employees which apparently were inconsistent
with other provisions of the Act.
Support for this construction of the Act is found in the Supreme Court's decision
in the Radio Engineers case. In that case the Board had urged, in support of its
position that it could not upset the employer's work assignment, that it would be
anomalous to attribute to Congress the intention to permit the Board to foster
through Section 10(k) proceedings the discrimination which Section 8(a)(3) and
8(b) (2) of the Act were designed to prevent. To illustrate the consequences of such
13 The bill, H R 3020, defined "jurisdictional strike" in section 2(15) (I Leg Hist 169),
and made such a strike unlawful in Section 12(3) (A) (I Leg. Hist 205) These refer-
ences are to Legislative History of the Labor Management Relations Act, 1947, U S.
Government Printing Office, 1948.
LOCAL 502, INTERNATIONAL HOD CARRIERS, ETC. 705
an interpretation the Board cited in its brief a hypothetical case , the facts of which
strictly parallel the facts of this case, pointing out the discriminatory consequences
of the employer's action, in response to the pressures of the picketing union, in
discharging his employees and replacing them with members of the picketing
union.14 The Supreme Court nevertheless rejected this contention, and, in effect,
held that the Board must determine the underlying work-assignment dispute under
"the standards generally used by arbitrators, unions, employers, joint boards, and
others in wrestling with the problem" (364 U.S. at 583), standards which are not
necessarily in harmony with all of the provisions of the Act.
The General Counsel's position in effect that in jurisdictional dispute situations he
can elect to proceed either under Section 8(b)(2) or under Sections 8(b)(4)(D)
and 10(k) 15 ignores the fact that Congress took pains to adopt the specialized
procedure for handling jurisdictional dispute situations because it regarded them as
special problems requiring different treatment from other unfair labor practice
situations. The General Counsel's decision in this case to proceed under Section
8(b) (2), in my opinion, runs counter to the intention of Congress in this regard.
Moreover, bypassing the Section 10(k) procedure in some situations has the
effect of precluding one of the unions involved in a jurisdictional dispute from raising
a defense to Section 8(b) (2) charges which would be available to it if 10(k) proceed-
ing had been held and the Board's determination was in its favor. Thus, assume a
union is picketing an employer's establishment in an effort to induce him to
assign certain disputed work tasks to its members. The employer then files Section
8(b) (4) (D) charges against the picketing union . The Board in the Section 10(k)
proceeding which follows determines that members of the picketing union are
entitled to be assigned the work in question. The effect of such a determination
is to uphold the picketing union's right under the Act to engage in the picketing
in question. In these circumstances, such picketing could not be regarded as viola-
tive of Section 8(b)(2); the Section 10(k) determination would constitute an abso-
lute defense to Section 8(b) (2) charges.
For the reasons set forth hereinabove, I conclude that Congress deemed the
elimination strife arising out of jurisdictional disputes to be of paramount importance,
and that it intended that the specialized procedure set forth in Section 10(k) should
be followed in the first instance in any jurisdictional dispute situation. Since that
procedure was not followed in this case, the Section 8(b) (2) -allegations of violations
of the complaint as amended will be dismissed.
I recognize that my conclusion herein-in effect that the procedures laid down
by Congress in Sections 8(b)(4)(D) and 10(k) are to be used to the exclusion of
all others in the first instance in jurisdictional dispute situations-is contrary to that
of the Board in a long line of decisions handed down prior to the Supreme Court's
decision in Radio & Television Broadcast Engineers Union, Local 1212 etc. v.
N.L.R.B., 364 U.S. 573. However, call these decisions of the Board proceeded on the
premise that the Board was not required to make an affirmative arbitration-type
award of the disputed work tasks to one or the other of the contending labor organi-
zations. The Radio Engineers decision, in effect, destroyed this premise and com
pletely altered the Board's role in jurisdictional dispute situations. Now it is settled
that the Board is required to decide the underlying work-assignment dispute. As
pointed out above, it would be inconsistent with the Board's carrying out of the
serious responsibilities entrusted to it by Congress in Section 10(k) to hold that
Sections 8(b) (4) (D) and 10(k) could be bypassed at will in true jurisdictional
dispute situations. See the dissenting views of Board Member Fanning in Local
Union No. 48, Sheet Metal Workers' International Association, AFL-CIO (Acousti
Engineering of Alabama, Inc.), 120 NLRB 212. 213, footnote 1, and United Brother-
hood of Carpenters, Etc., Local 1281, AFL-CIO (Fuller Paint & Glass Company),
127 NLRB 565, 566, footnote 3. in which he concluded that the procedures estab-
lished by Congress under Sections 8(b)(4)(D) and 10(k) were exclusive in juris-
dictional dispute situations.
14 See brief of NLRB In A' L R B. v Radio & Television Broadcast Employees Local 1512,
U S Supreme Court, October term 1960, No 69, pages 26-27
11 The General Counsel did not discuss the Section 10(k) Issue in his brief and as a
consequence the General Counsel's position is not expressly stated However, it is implicit
in the General Counsel's decision to issue a complaint charging violations of Section
8(b) (2) and 8(b) (1) (A) in this case that this Is the position of the General Counsel's
office.
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Laborers complains of my refusal to receive in evidence a contract which it
contends is in effect between it and the Employer and which purportedly describes
the work to be performed by its members under the contract. The General Counsel
similarly sought to introduce into evidence a contract assertedly in effect between
the Employer and the Carpenters. I excluded these contracts on the theory that
they were not relevant to the Section 8(b)(2) and 8(a)(1) issues before me. It
appears that had this been an ordinary case of alleged violations of Section 8(b) (2)
and 8 (b) (1) (A) of the Act, it might have been error for me to preclude the parties
from adducing evidence concerning contract terms relating to work-task coverage
(cf. Retail Clerks Local Union No. 1222 (Mayfair Markets et al.), 133 NLRB 1458).
However, in view of my ultimate conclusion herein that the case involves a work-
assignment dispute within the purview of Sections 8(b)(4)(D) and 10(k) of the
Act, and that such jurisdictional dispute issues cannot be resolved under the pro-
cedures of Section 8(b)(2) and 8(b)(1)(A) of the Act, it appears that the evidence
in question was properly excluded.
The excluded contracts were offered by each of the parties in an effort to establish
that the Employer had contractually agreed to assign the disputed work to its mem-
bers. But this is but one of the types of evidence which goes to the heart of the
jurisdictional dispute question, which Congress intended the Board to dispose of
in a proceeding under Section 10(k). To have received it would have meant the
opening up of this proceeding under Section 8(b) (2) and 8(b) (1) (A) to the litiga-
tion of strictly jurisdictional dispute matters. As the Supreme Court has held, how-
ever, Section 10(k) contemplates that jurisdictional dispute questions are to be
resolved under arbitration-type standards which are not always in harmony with
the provisions of Section 8(b) (2) and other provisions of the Act. This contention
illustrates the difficulties before the Board as a result of the General Counsel's decision
to proceed in this case under Section 8(b) (2) rather than under Sections 8(b) (4) (D)
and 10(k). These difficulties, in my opinion, tend to point up the soundness of
my conclusion herein that jurisdictional dispute questions should be disposed of
first under the procedures of Section 10(k).
4. Conclusions concerning the alleged violations of Section 8 (b) ( I ) (A)
With regard to the Laborers' alleged independent violation of Section 8(b) (1) (A)
of the Act by physically interfering with the carpenters in the performance of the
stripping work in question, I find that such conduct restrained and coerced members
of the Carpenters in the exercise of the rights guaranteed in Section 7 of the Act,is
unless this conduct is so inextricably interwoven with the Laborers' other acts and
conduct in support of its dispute with the Carpenters over the assignment of the
stripping work in question, that it cannot be considered separately and apart from
such other conduct, but must be viewed, like the laborers' intermittent work stop-
pages, solely in the light of Sections 8(b) (4) (D) and 10(k) of the Act. I find that
such conduct is so inseparably intertwined with the Laborers' other conduct in the
course of its jurisdictional dispute that it cannot be viewed in isolation from Sec-
tion 8(b)(4)(D) and Section 10(k) of the Act. Accordingly, the Section
8 (b) (1) (A) allegations of the complaint as amended will also be dismissed.
CONCLUSIONS OF LAW
1. Local 502 , International Hod Carriers , Building and Common Laborers Union
of America, AFL-CIO, has not violated Section 8(b) (2) and 8 ( b) (1) (A) , as alleged
in the complaint as amended.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law it is recom-
mended that the complaint as amended be dismissed in its entirety.
16 Embraced within Section 7 of the Act, in my opinion, is the right of the members of
the Carpenters to enjoy membership In a labor organization of their choice free from re-
straint or coercion from any other labor organization, the effect of which is to dis-
courage membership in their organization and encourage membership in some other labor
organization.