Operating Engineers Local 3

National Labor Relations Board - Board Decisions

Oct 12, 1972

199 N.L.R.B. 726 (N.L.R.B. 1972)

726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Operating Engineers Local Union No. 3, International
Union of Operating Engineers , AFL-CIO and
Hansen's, Incorporated . Case 20-CD-308
October 12, 1972
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On July 20, 1971, the National Labor Relations
Board issued a Decision and Order I in the above-
entitled proceeding, finding that Respondent had vio-
lated Section 8(b)(4)(D) of the National Labor Rela-
tions Act, as amended, by picketing Hansen's, Inc.,
with an object of compelling Hansen's to assign cer-
tain work to employees represented by Respondent
rather than to employees represented by Pipe Trades
District Council No. 36 of the United Association of
Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada,
AFL-CIO (herein called the Pipefitters), and ordering
that Respondent cease and desist therefrom and take
certain affirmative action to remedy such unfair labor
practices.
Thereafter, on March 2, 1972, the General Coun-
sel filed a motion to reopen the record for the purpose
of taking additional evidence, moving that the Board
reopen this proceeding for the limited purpose of tak-
ing additional evidence with respect to whether there
was in existence, at relevant times and under prevail-
ing Board law, an agreed-upon method for voluntary
adjustment of any jurisdictional dispute involved in
the instant case. On March 16, 1972, the Board issued
an order denying the General Counsel's motion as
raising nothing warranting the reopening of the rec-
ord.
Thereafter, on April 6, 1972, the General Coun-
sel, Respondent, and the Charging Party jointly
moved the Board to reconsider its order and, in order
to provide a more appropriate record for its Decision
and Order in this proceeding, to reopen this proceed-
ing for the limited purpose of taking additional evi-
dence with respect to whether there was in existence,
at relevant times and under prevailing Board law, an
agreed-upon method of voluntary adjustment of any
jurisdictional dispute involved in the instant case. On
May 31, 1972, the Board issued an Order granting the
joint motion for reconsideration, reopening the rec-
ord, and directing that a further hearing be held be-
fore an Administrative Law Judge 2 for the limited
1 192 NLRB No. 28.
2 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
purpose set forth in the joint motion for reconsidera-
tion.
On June 26, 1972, the parties to this proceeding
entered into a stipulation of facts and filed a motion
to transfer the proceeding to the Board. They agreed
that the stipulation of facts, including the exhibits
attached thereto, constitutes the entire supplemental
record in this proceeding; waived a supplemental
hearing before and the making of supplemental find-
ings of fact and conclusions of law by an Administra-
tive Law Judge, and the issuance of an Administrative
Law Judge's supplemental decision and recom-
mended order; and submitted the case directly to the
Board for supplemental findings of fact, conclusions
of law, and order.
By order of the Board dated July 6, 1972, the
joint motion to transfer the proceeding to the Board
was granted, the proceeding was transferred to the
Board, the stipulation of the parties was approved,
and permission was granted to the parties to file
briefs. Thereafter, the General Counsel and Respon-
dent filed briefs with the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the basis of the stipulation, the briefs, and
the entire supplemental record in this proceeding, the
,Board makes the following supplemental findings:
On April 3, 1970, the National Joint Board for
the Settlement of Jurisdictional Disputes (herein
called the "new" Joint Board) I was established pur-
suant to an agreement between the Building and Con-
struction Trades Department, AFL-CIO, and various
contractors' associations, entitled "Plan for Settling
Jurisdictional Disputes Nationally and Locally." As
the international unions with which Respondent and
the Pipefitters are affiliated are members of or affiliat-
ed with the Building and Construction Trades De-
partment, Respondent and the Pipefitters are parties
to this agreement and, accordingly, are bound to sub-
mit any jurisdictional disputes to the "new" Joint
Board for settlement.
On July 27, 1970, the Charging Party's general
counsel and secretary sent a telegram to the "new"
Joint Board, stating that a work stoppage had oc-
curred when the Charging Party refused Re-
spondent's demand that the operation of forklifts be
assigned to its members. It has been stipulated, and
we find, that the purpose of this telegram was to sub-
3 The National Joint Board for the Settlement of Jurisdictional Disputes
referred to in the Charging Party's contracts with Respondent and the Pipe-
fitters (herein called the "old" Joint Board) had expired on September 30,
1969 Between October 31, 1969, and February 28, 1970, jurisdictional dis-
putes were handled through National Joint Board procedures under an inter-
im agreement between the Building and Construction Trades Department,
AFL-CIO, and certain contractors' associations.
199 NLRB No. 105
OPERATING ENGINEERS LOCAL 3 727
mit the jurisdictional dispute to the "new" Joint
Board for resolution . The Joint Board sent a letter to
the International Union of Operating Engineers, re-
questing that Respondent 's members return to work
immediately and that any jurisdictional dispute be
processed in accordance with the procedural rules of
the Joint Board . Respondent informed the Joint
Board that it was not demanding the work , but only
seeking payment for its members in accordance with
its contract with the Charging Party. On July 31, 1970,
the Joint Board sent a copy of Respondent 's letter to
the International Union of Operating Engineers for
such action as it deemed advisable . No further action
has been taken by the Joint Board with respect to the
dispute herein.
In our prior decision in this case , we found that
an agreed-upon method for settlement of the dispute
existed because the Employer's contracts with Re-
spondent and the Pipefitters required the submission
of any jurisdictional disputes to the "old" Joint
Board . Subsequently , in Bricklayers, Masons and Plas-
terers ' International Union of America, Local No. 1,
AFL-CIO (Lembke Construction Company of Colora-
do, Inc.), 194 NLRB No. 98, we held that such con-
tractual provisions , entered into while the "old" Joint
Board was still in existence , only bound the parties to
submit jurisdictional disputes to that Joint Board, and
not to any Joint Board which might subsequently be
created . We have made it clear , however , that a differ-
ent result would be reached where , after the estab-
lishment of the "new" Joint Board , the parties
demonstrated their intent to be bound by its deci-
sions.4 In the instant case , it has been stipulated that
Respondent and the Pipefitters , by virtue of their in-
ternational unions ' membership in the Building and
Construction Trades Department, were bound to sub-
mit any jurisdictional disputes arising on or after
April 3, 1970, to the "new" Joint Board . In addition,
it is clear that the Employer, by actually invoking the
procedures of the "new" Joint Board with respect to
the dispute , likewise agreed to be bound by the deci-
sion of the Joint Board .' Accordingly, we find that,
under prevailing Board law as set forth in Lembke,
supra, the "new" Joint Board constituted an agreed-
upon method for adjustment of the dispute herein. As
the utilization of the agreed-upon method failed to
produce an adjustment of the dispute , the issuance of
a complaint under Section 8(b)(4)(D) of the Act with-
out a prior hearing and determination under Section
10(k) was proper .6 We shall therefore reaffirm the
unfair labor practice findings and the remedy provid-
ed therefor in the original Decision and Order herein.
SUPPLEMENTAL ORDER
In view of the foregoing , and on the basis of the
supplemental record as a whole , the National Labor
Relations Board hereby reaffirms its Order issued
July 20, 1971, in this proceeding.
° Cf Marble Mason, Terrazzo Workers and Tile Layers Subordinate Union
No 3 of Kansas, City, Bricklayers, Mason and Plasters International Union of
America, AFL-CIO (Winn -Senter Construction Company), 194 NLRB No. 74.
' Winn -Senter Construction Co, supra, Local Union No. 1, Sheet Metal
Workers International Association, AFL, 114 NLRB 924, 930
6 Wood, Wire and Metal Lathers International Union and its Local Union No.
2, AFL-CIO (Acoustical Contractors Association of Cleveland), 119 NLRB
1345, 1351.