Local Union No. 9

National Labor Relations Board - Board Decisions

Aug 25, 1955

113 N.L.R.B. 947 (N.L.R.B. 1955)

LOCAL UNION NO. 9 947
or, in the event the Charging Party does not enter into this Agreement , after the
receipt of advice that no review has been requested or that the General Counsel has
sustained the Regional Director . Contingent upon compliance with the terms and
provisions hereof, no further action shall be taken in the above case.
BETTER MONKEY GRIP COMPANY , UPHOLSTERERS ' INTERNATIONAL
Employer . UNION OF NORTH AMERICA, AFL,
( S.) HERBERT S. BONNEY , Jr., Atty. Charging Party.
( Name and Title ) (S.) D. H. WOODALL , Reg. Dir.
Date executed : Nov. 4, 1955 ( Name and Title)
(S.) EDWIN A . ELLIOTr,^ Recommended:
Regional Director, ( S.) H. C. Thompson, Jr.
National Labor Relations Board . H. C. THOMPSON, Jr.
Attorney , Nat'l. Labor R. B.
Date Approved : 11-4-55
NOTICE TO ALL EMPLOYEES
Pursuant to a Settlement Agreement approved by the Regional Director for the
National Labor Relations Board, and in order to effectuate the policies of the Na-
tional Labor Relations Act, we hereby notify our employees that:
WE WILL NOT sponsor or recognize the Employee Committee as the repre-
sentative of our employees for the purpose of dealing with us concerning
grievances , wages, hours of employment , or other conditions of employment.
WE WILL NOT discourage or encourage membership in the Upholsters' Inter-
national Union of North America, AFL, or any other labor organization of
our employees by discriminating in regard to their hire or tenure of employment,
or any other condition of employment.
WE WILL NOT engage in surveillance of the union activities , if any, of our
employees at meetings with union representatives.
WE WILL NOT conduct any poll among our employees to determine their union
affiliation.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self -organization , to form labor organizations,
to join or assist Upholsterers ' International Union of North America, AFL, or
any other labor organization , to bargain collectively through representatives of
their own choosing , and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection , and to refrain from any
or all of such activities . All our employees are free to become or remain
members of this Union, or any other labor organization.
WE WILL compensate the following named employees for their loss of earn-
ings, if any, suffered by reason of discrimination , if any, against them:
J. V. Stone
Irene B. Stone
Nannie Bell Sparks
James Clark BETTER MONKEY GRIP COMPANY,
Employer or Labor Organization.
Dated Nov . 4, 1955 By HERBERT S. BONNEY , Jr., Atty.
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
Local Union No. 9, Wood , Wire, and Metal Lathers International
Union, AFL and A. W. Lee, Inc. Case No. 5-CD-14. August 26,
1955
DECISION AND ORDER QUASHING NOTICE OF
HEARING
This proceeding arises under Section 10 (k) of the Act, which pro-
vides that "Whenever it is charged that any person has engaged in an
113 NLRB No. 108.
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practice within the meaning of paragraph (4) (D) of
Section 8 (b), the Board is empowered and directed to hear and deter--
mine the dispute out of which such unfair labor practice shall have-
arisen...."
On December 14, 1954, A. W. Lee, Inc., herein called the Company,,
filed with the Regional Director for the Fifth Region a charge against'
Local Union No. 9, Wood, Wire and Metal Lathers International
Union, AFL, herein called Lathers Local 9, alleging that it had en--
gaged in and was engaging in unfair labor practices within the mean-
ing of Section 8 (b) (4) (D) of the Act. The charge alleged, in
substance, that Lathers Local 9 had induced and encouraged em-
ployees of the Company to engage in a strike or a concerted refusal
to work in the course of their employment with an object of forcing
or requiring the Company to assign particular work to employees who
are members of Lathers Local 9, rather than to employees who are-
members of Carpenters District Council, AFL, and Carpenters Local
Union 1590, AFL, herein collectively called the Carpenters.
Thereafter, pursuant to Section 10 (k) of the Act and Sections
102.71 and 102.72 of the Board's Rules and Regulations, the Regional
Director investigated the charge and provided for a hearing upon due
notice to all the parties. The hearing was held before David C. Sachs,
hearing officer, on January 10 and 26, 1955. After this hearing, the
Board, deeming it necessary to receive further evidence, on February-
8,1955, ordered that the record in this proceeding be reopened and that-
this proceeding be remanded to the Regional Director for the purpose.
of holding a further hearing. Pursuant to the Board's order, a fur-
ther hearing was held on March 10, 1955, before David C. Sachs, hear-
ing officer. The Company and Lathers Local 9 appeared at these hear-
ings 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 hearings are free from
prejudicial error and are hereby affirmed. Lathers Local 9 filed a brief
with the Board. Thereafter, the National Joint Board for the Settle-
ment of Jurisdictional Disputes in the Building and Construction
Industry, herein called the Joint Board, was permitted to file a brief as,
amicus curiae, Lathers Local 9 was permitted to file a reply brief.
Upon the entire record in this case, the Board finds :
1. The parties stipulated, and we find, that the Company is engaged
in commerce within the meaning of the Act.
2. Lathers Local 9 and the Carpenters are labor organizations with-
in the meaning of the Act.
3. The dispute :
i The Carpenters, although served with notice of both the original and further hear-
ings , did not enter an appearance or participate in either hearing-
LOCAL UNION NO. 9
The Facts
949,
The Company is a plastering and acoustical installations contractor
doing work in Maryland, Virginia, and the District of Columbia. In
August 1954 the Company began work as a subcontractor on the con-
struction of a building in Fairfax County, Virginia, for the Westing-
house Airbrake Corporation. A portion of its work on this job in-
volved the installation of an acoustical tile ceiling in which a suspen-
sion system known as the "Cupples T-Bar grid system" is used to sus--
pend the ceiling tiles. As constructed on this job, erection of the sus-
pension system and ceiling entails four steps. In the first step, metal
strips are hung vertically from overhead structural beams down to
the level desired for the ceiling. Strips of iron, called black iron chan-
neling, are then bolted to the vertical strips in a horizontal position.
In the third step, aluminum bars, called T-bars because they appear-
as a T in a cross sectional view, are wired to the black iron channeling-
in an inverted position. The T-bars extend horizontally, and cross
each other at right angles, forming a grid of open squares. In the
fourth and final step, the individual acoustical tiles are inserted
through each grid square from underneath, and then turned so that
they rest flat on the inside flanged edges of each square.
The Company assigned to its lathers the work of performing the
first three steps of this operation in accordance with its-collective-
bargaining agreement then in effect with Lathers Local 9. It assigned
to the Carpenters the work of inserting the individual tiles in the,
grid squares after the suspension system was erected by the lathers.
On an unspecified date near the beginning of November 1954, the Car-
penters submitted to the Joint Board a claim that the work of in-
stalling the aluminum T-bars should be assigned to the Carpenters
instead of to the lathers, who were then performing that work, and
requesting an adjudication of its claim by the Joint Board. By letter
dated November 15, 1954, the Joint Board notified the Company that
it had been informed of a jurisdictional dispute between the Carpen
ters and the Lathers over the erection of the T-bar system on the West-
inghouse job, and requested the Company to submit a description of
the disputed work and the details of the dispute. The Company replied
on November 19, 1954, stating that it had assigned the installation of
T-bars to the Lathers because in the Company's opinion this work
"belonged to the Lathers." For information concerning the work,
the Company referred the Joint Board to information previously
furnished to the Joint Board by the Company and the Acoustical Con-
tractors Association, of which the Company is a member, in January
and February 1954, in connection with a dispute between the Car-
penters and Lathers Local 9 over the installation of T-bars on a con-
struction job, at Walter Reed Hospital in Washington, D. C. On_
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
December 7, 1954, the Company received from the Joint Board a tele-
gram dated December 6, stating that the Joint Board had considered
this dispute at its meeting of December 1, and voted to make the
following job decision, effective on the Westinghouse job only: "IN-
STALLATION OF T-BARS AND ACOUSTICAL TILE IS TO
BE ASSIGNED TO CARPENTERS."
At this juncture, the Company had in its employ on the Westing=
house job 3 lathers engaged in installing the grid system and 4 car-
penters who were placing acoustical tiles in the system. It had in-
tended to lay off 1 of the 3 lathers for lack of work but to continue
with the remaining 2 until the grid system had been completed, which
would have required an estimated period of about 1 week. Upon
receipt of the Joint Board's telegram, the Company laid off 1 lather as
planned, and transferred the other 2 to another job in Rockville,
Maryland. On the morning of the succeeding day, December 8, the
Company assigned the uncompleted T-bar installations at the West-
inghouse job to Carpenters.
Also on December 8, Lathers Local 9 called a strike of all of the 23
lathers on 9 of the Company's jobs in protest over the Company's
compliance with the Joint Board telegram. Faced with this work
stoppage, the Company telegraphed the Joint Board, urging that it
"take steps to see that this violation of the National Joint Board plan
is immediately stopped." Sometime between December 8 and 15, the
Company, through counsel, requested the Joint Board to reconsider
its decision of December 1. On December 15, the Company wrote to
the Joint Board in response to a request for additional information,
repeating the statements made in its letter of November 19 to the Joint
Board, and adding that the disputed work on T-bars at the Westing-
house job was identical to the disputed work at the Walter Reed
Hospital job which was awarded to Lathers Local 9 by the Joint
Board in the preceding February. The Joint Board reconsidered its
decision of December 1, 1954, at a meeting on December 16, and
notified the Company by telegram dated December 17, that the Joint
Board had decided that the work on the Westinghouse job was dif-
ferent from the installation of T-bars at the Walter Reed Hospital
job, because at the latter job the T-bars had been attached directly to
-vertical wire hangers, while at the Westinghouse job, the T-bars were
attached to black iron channel which was first attached to the vertical
hangers. Clearly this telegram was intended as an affirmance' of the
-earlier decision, although it did not so state specifically.
On December 28, 1954, Local 9 notified the Company that it con-
-sidered the Company's action of assigning the installation of T-bars
to Carpenters as a material breach of their collective-bargaining con-
tract, and that Lathers Local 9 was exercising its right to terminate
.the contract. The work stoppage continued until on or about January
r
LOCAL UNION NO. 9 951
5, 1955, at which time all lathers returned to work pursuant to an
agreement reached in the course of injunction proceedings under Sec-
tion 10 (1) of the Act in the United States District Court for the
District of Columbia, in which it was also agreed to reinstate the con-
tract between the Company and Lathers Local 9.
Applicability of the Statute
Section 10 (k) of the Act, which empowers and directs the Board
to hear and determine disputes out of which Section 8 (b) (4) (D)
charges have arisen, also contains mandatory limitations upon the
Board's authority to make a determination of dispute in certain cir-
cumstances. Thus, Section 10 (k) provides:
... 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. [Emphasis supplied.]
Clearly the purpose of these provisions was to afford the parties
an opportunity to settle jurisdictional disputes among themselves
without Government intervention whenever possible. The provisions
emphasized above therefore require that the Board withhold any deter-
mination of a jurisdictional dispute not only when there has actually
been a "voluntary adjustment," but also whenever the Board has
before it "satisfactory evidence" that as of the time the charge was
filed, or within 10 days thereafter, the parties have "agreed upon
methods for the voluntary adjustment of the dispute." 2
Consistent with the statutory provisions for private settlement of
jurisdictional disputes whenever possible, the Joint Board was estab-
lished with the knowledge of this Board, for the purpose of consider-
ing and deciding jurisdictional disputes arising in the building and
construction industry.' We have held that where all parties to a
dispute, i. e., the disputing unions and the employer responsible for
the assignment of the disputed work, are bound by the agreement
which established the Joint Board and which provides for the sub-
mission of disputes to it, the parties have "agreed upon methods for
the voluntary adjustment of the dispute" within the meaning of Sec-
2 Manhattan Construction Company. Inc, 96 NLRB 1045, p. 1048, petition for i eview
dismissed 198 F 2d 230 (C A 10) , Wm F. Traylor, 97 NLRB 1003, p 1006; Roy Stone
Transfer Corporation, 99 NLRB 662, p. 666.
See Manhattan Construction Company, Inc , supra.
379288-56-vol. 113-61
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 10 (k), and that we are therefore without authority to-determine
the dispute.'
Lathers Local 9 contends, however, that such is not the case here.
It contends that it was not itself bound by the Joint Board agreement,
nor was the Company. One of the signatories to the agreement
establishing the Joint Board is the Building and Construction Trades
Department, AFL. The Procedural Rules and Regulations of the
Joint Board, issued by the Joint Board as authorized by the basic
agreement, provide, in part, that its procedures shall apply to "All
unions affiliated with the Building and Construction Trades Depart-
ment, AFL ..." The Lathers' International Union was, at all times
herein material, a member of the Building and Construction Trades
Department, AFL, and was therefore bound by the Joint Board agree-
ment.5 There is apparently no question that the Lathers' Inter-
national has on numerous occasions been a party to and complied
with determinations by the Joint Board. Local 9 argues, however,
that it did not become subject to the Joint Board agreement by virtue
of the fact that the Lathers' International was a party to it, and that
a local union cannot be bound by the agreement without its express
consent, which Local 9 has never given. We find no merit in this con-
tention. Section 15 of the constitution of the Lathers' International
Union provides:
Sec. 15. It shall be the duty of the General President .. . to
decide all questions of law, craft rights, jurisdiction, or equity,
same [sic] to be subject to appeal by party concerned to the
Executive Council.
Lathers Local 9 argues that this applies only to "internal disputes
of craft rights," but we find no such limitation in the quoted language,
and it would seem therefore that the Lathers' International, having
chartered the local union, and having reserved to itself decisional
rights in jurisdictional matters, possessed authority to bind its locals
to the official method for deciding jurisdictional disputes adopted by
,all of the International Unions of the Building and Construction
Trades Department of the AFL. The Joint Board indicates in its
brief amicus curiae that in 1954 the Lathers' International handled
four jurisdictional disputes over acoustical work within the terri-
torial jurisdiction of Local 9, and that the local union complied with
adverse decisions ,and accepted the benefits of one favorable decision.
We find that Local 9 was in fact bound to the basic Joint Board agree-
ment prior to the time the dispute herein arose, at the time the dispute
4 Manhattan Construction Company, Inc, supra ; United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada,
Local 428, AFL, et at, 108 NLRB 186, p 197
5 The Lathers' International Union withdrew from further participation under the
Joint Board agreement on March 31, 1955, subsequent to all material occurrences herein.
LOCAL UNION NO. 9 953
was considered and determined by the Joint Board, and at the time the
charge herein was filed.
With respect to the application of the Joint Board agreement to
the Company, the agreement provides, at article III, section 7:
It is understood only those contractors who employ members of
the organizations affiliated with the Building and Construction
Trades Department of the AFL shall be considered as bound by
this agreement when they have signed a stipulation setting forth
that they are willing to subscribe to and be bound by the terms
and provisions of this agreement.
It is true, as contended by Lathers Local 9, that the Company has never
signed any stipulation such as specified, and was therefore not con-
tractually bound by the Joint Board agreement at the time the dis-
pute arose. The Company did, however, submit itself to the Joint
Board's processes by replying to requests for information, by request-
ing reconsideration of the Joint Board's initial decision of December
1, 1954, and by requesting the Joint Board to intervene to stop the
Lathers' work stoppage which was occasioned by the Company's com-
pliance with the Joint Board decision. It is also clear that the Com-
pany had previously acquiesced in Joint Board control of work dis-
putes on its jobs, for the president of the Company testified: "After
the receipt of [the Joint Board telegram of December 7, 1954], we
acted as we have in all other cases where we have been given notice by
the Joint Board as to decisions; we followed their decisions." In view
of these facts and especially in view of the fact that the Company has
fully complied with the Joint Board's determination of the dispute,
and has never indicated any inclination to do otherwise, we find that
the Company had, at the time of the charge herein "agreed upon a
method for the voluntary adjustment of this dispute."
In accordance with the foregoing, we find that before the charge
herein was filed, the parties had agreed upon a method for the volun-
tary adjustment of the dispute here involved, and that the dispute had
been determined within the framework of the agreed method. The
fact that Lathers Local 9 has refused to abide by the determination, in
derogation of its agreement, is, in our opinion, immaterial. As previ-
ously noted, the proviso to Section 10 (k) applies equally to adjust-
ment or an agreement upon a method of adjustment. The Board has
previously held that the refusal of a party to abide by a determination
made pursuant to an agreed-upon method, does not nullify the agree-
ment on a method for voluntary adjustment within the meaning of
the proviso to Section 10 (k).1 To hold otherwise would condone and
sanction Lathers Local 9's breach of the agreement, and would tend to
discourage and render worthless the making of such agreements, con-
9 Wm. F. Traylor, supra, p. 1006; Roy Stone Transfer Corporation, supra, p. 666
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trary to the statutory purpose to encourage the voluntary adjustment
of jurisdictional disputes. Otherwise, any party adversely affected by
determination made pursuant to the agreement could breach the agree-
ment with impunity, and then have recourse to this Board for a rede-
termination of the dispute in the hope that the redetermination might
be favorable.'
As we have found that as of the time of the charge herein was filed,
the parties had agreed upon methods for the voluntary adjustment
of the dispute, we find that we are without authority to determine this
dispute, and shall accordingly quash the notice of hearing issued in
this proceeding.
[The Board quashed the notice of hearing.]
MEMBER LEEDOM took no part in the consideration of the above De-
cision and Order Quashing Notice of Hearing.
7 Ibid.
Westinghouse Electric Corporation and Association of Westing-
house Salaried Employees ( Federation of Westinghouse Inde-
pendent Salaried Unions ). Case No. 6-CA-808. August 25,1955
DECISION AND ORDER
On December 28, 1954, Trial Examiner Arthur Leff issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
Pursuant to the Respondent's request the Board, on May 5, 1955,
at Washington, D. C., heard oral argument in which the Respondent
and General Counsel participated.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the, exceptions and brief, the oral argument of the
Respondent and the General Counsel, and the entire record in this
case. A majority of the Board is agreed that the complaint in this
proceeding should be dismissed, but for the different reasons set forth
in their separate opinions. Because of the bases for their decision to
dismiss the complaint, the majority finds it unnecessary to pass on the
'Trial Examiner's findings and conclusions as to the appropriate unit.
[The Board dismissed the complaint.]
113 NLRB No. 105.