Los Angeles Building and Construction Trades Council

National Labor Relations Board - Board Decisions

Mar 14, 1950

88 N.L.R.B. 1101 (N.L.R.B. 1950)

In the Matter of Los ANGELES BUILDING AND CONSTRUCTION TRADES
COUNCIL, A. F. L., AND LLOYD A. MASHBURN, ITS AGENT; MILL-
WRIGHT AND MACHINERY ERECTORS LOCAL 1607, OF THE UNITED
BROTIIERHOOD OF CARPENTERS AND JOINERS OF AMERICA, A. F. L.,
AND HERMAN F. BARBAGLIA, ITS AGENT and INTERNATIONAL Asso-
CIATION OF MACHINISTS, FOR ITS LOCAL LODGE 1235
Case No. 21-CD-19
ORDER REMANDING CASE
March 14,1950
On August 31, 1949, Trial Examiner Peter F. Ward issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in certain unfair labor practices and rec-
ommending that they cease and desist therefrom and take certain
affirmative action. Thereafter, the Respondents filed exceptions to
the Intermediate Report and a supporting brief.
On January 5, 1950, at Washington, D. C., the Board heard oral
argument.' The Respondents contended, inter alia, that they had
complied with the Board's 10 (k) Determination in this case.2 No
evidence with respect to such compliance or noncompliance was ad-
duced at the hearing before the Trial Examiner.3
We are of the opinion that the intent of Congress was that the Gen-
eral Counsel should allege and prove noncompliance with our 10 (k)
determination in 8 (b) (4) (D) proceedings. Accordingly, we shall
reopen the record in this case, and remand it to the Trial Examiner
to give the General Counsel an opportunity to amend his pleadings
and to introduce evidence to sustain his burden of proof.
'Participating at the oral argument were the Respondents , the charging party, the Gen-
eral Counsel , and the Employers.
2 83 NLRB 477.
8 The relevant portion of Section 10 ( k) provides :
Upon compliance by the parties to the dispute with the decision of the Board
., such charge ( of an 8 (b) (4) (D) violation] shall be dismissed.
88 NLRB No. 241.
1101
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
IT IS HEREBY ORDERED that the above-entitled case be, and it hereby
is, remanded to the Trial Examiner; and
IT Is FURTHER ORDERED that the Trial Examiner be, and he hereby is,.
directed to reopen the record ; to permit the General Counsel to amend
the complaint to allege the Respondents' noncompliance with the
Board's 10 (k) Decision and Determination of Dispute; to permit the
parties to adduce relevant evidence; and to prepare and issue an
appropriate supplementary Intermediate Report.
CHAIRMAN HERZOG and MEMBER REYNOLDS, dissenting :
We are of the opinion that compliance with a 10 (k) determination
is an affirmative defense, and that the burden of proving it is upon the
Respondents. Because the Respondents have introduced no evidence
of their compliance with that determination, we would find they have
not complied.