Plumbers Local 393 (Hall-Way Contracting Co.)

National Labor Relations Board - Board Decisions

Sep 30, 1977

232 N.L.R.B. 644 (N.L.R.B. 1977)

644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 393, United Association of Journey-
men and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada,
AFL-CIO and Hall-Way Contracting Company,
Inc. and Construction & General Laborers Union
Local No. 270, Laborers International Union of
North America, AFL-CIO. Case 20-CD-493
September 30, 1977
DECISION AND DETERMINATION OF
DISPUTE
This is a proceeding pursuant to Section 1qk) of
the National Labor Relations Act, as amended,
following the filing of a charge on May 21, 1976, by
Hall-Way Contracting Company, Inc. (hereafter the
Employer), alleging that Local Union No. 393,
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO (hereafter the
Plumbers or Local 393), has violated Section
8(b)(4)(D) of the Act by engaging in certain
proscribed activities with the object of forcing or
requiring the Employer to assign the disputed work
to employees represented by Local 393 rather than to
employees represented by Construction & General
Laborers Union Local No. 270, Laborers Interna-
tional Union of North America, AFL-CIO (hereafter
the Laborers or Local 270).
Pursuant to notice, a hearing was conducted before
Hearing Officer Lawrence W. Hanson on July 14
and 15 and October 20 and 21, 1976. All parties
appeared at the hearing and were afforded a full
opportunity to be heard and to present evidence
bearing on the issues.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed.'
Upon the basis of the entire record in this case,
including the briefs, the Board makes the following:
I . THE BUSINESS OF THE EMPLOYER
The Employer is a member of the Landscape,
Sprinkler and Irrigation Contractors Association,
located in Walnut Creek, California. The Association
represents approximately 100 employers for purposes
of collective bargaining who are engaged in the
installation of sprinklers and irrigation systems and
in landscape contracting. Evidence was presented
' The Hearing Officer denied the Employer's motion lo quash the
subpoena duce.~ recum sewed by Local 270 on the ground that the requested
~nformation regarding the type of jobs performed by the Employer s~nce
that one member of the Association, Watkins and
Bartolussi, received in excess of $50,000 in revenw
for a project performed outside the State of Califor-
nia. The Employer herein performs work for various
landscape and paving contractors. Its gross volurnc
of business per annum is approximately $480,000. On
the basis of these facts in evidence, we find that thc
Hall-Way Contracting Company, Inc., is an employ-
er engaged in commerce within the meaning of'
Section 2(6) and (7) of the Act and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
11. THE LABOR ORGANIZATIONS INVOLVED
All parties stipulated, and we find, that Local 393
and Local 270 are labor organizations within the
meaning of Section 2(5) of the Act.
111. PRELIMINARY ISSUES
The hearing was adjourned on July 15, 1976, to
allow Local 270 to file with the Board an interim
appeal of the Hearing Officer's ruling which preclud-
ed Local 270 from raising the issue of Local 393's
alleged racial discrimination on the ground that the
issue was irrelevant in a lO(k) proceeding. It was
Local 270's position, in light of N.L. RB. v. Mansion
House Center Management Corp., 473 F.2d 471 (C.A.
8, 1973), and Bekins Moving & Storage Co. of Florida,
Inc., 211 NLRB 138 (1974), that the disputed work
could not he awarded to a labor organization, its
members, or the employees whom it represents if that
labor organization discriminates on the basis of race
or national origin. On July 30, 1976, the Board (then
Chairman Murphy and then Member Fanning
dissenting) granted Local 270's appeal, ruling that
evidence of racial discrimination by Local 393 "may
be relevant and material to the right of the members
of Local 393 to be awarded the work in dispute." The
hearing resumed on October 20 and 2 1, 1976.
We have reconsidered our prior ruling which
granted Local 270's appeal in light of two recent
decisions: Handy Andy, Inc., 228 NLRB 447 (1977),
in which we overruled Bekim and enumerated the
reasons why we believe that the Board is not
constitutionally required to consider issues raised by
an objection grounded on alleged invidious discrirni-
nation prior to issuance of a Board certification of
representative; and Bell & Howell Company, 230
NLRB 420 (1977), wherein.we held that the Board is
not proscribed from ordering an employer to bargain
with a labor organization because of the latter's
alleged discriminatory practices. For the reasons set
1963 and classification of employees and employee hours on each job was
relevant to the determination of the d~spute. No appeal was taken to this
rulmg.
232 NLRB No. 83
L 0 C . a UNION NO. 393, PLUMBERS 645
j I ~ I in those decisions and below, we find that
c I( nce regarding such alleged discrimination is not
1 > ~ n t to a determination of a work dispute
I 11'1n.t to Section 8(b)(4)(D) and Section 1C)(k) c?f
1 , \ct .
I II o : ~ r view. we are neither constitutior?allv nor . <
, . I I 1 1 rorily required to consider sach evl.cence i~ sllch
, I l(.cedings. A review of Sections 8(bj(4)(Dj and
!or A ) may be helpful in understanding why evidence
r ~liscrimination is i n a ~ ~ r o ~ r i a t e In such ~roceed-
1 1 1
1 ' 1 , - Whenever it is charged that any person has
11:'.12ed in an unfair iabor practice within the
,~, . ;~ning cf Section 8@)(4)@), the appropriate
Ir,.clc;nai 3irenior investicaies the charge and. if it
u -
11i:c;~;' :ix charge has rnerir 2nd chi. narties have ps;
1 :iced upon methods for the vo!untary adjustment o i
l l l i , dispute out of which the charge has arisen, the -
l i~yonal Directcr series on the parties a notice of
1 ~ f .<~i- ing under Secii~n 1-3&j oT the Act. A" L tne ' close
. ' ! rhe hearing, the proceeding is transferred :a the
l{lwx! which issues a decision and determination of
, Il\pute awarding the work to the appropriate group
1 1 cmployees. If, after this deternunation, the parties - -
11l3mit satisfactory evidence to the Regional ~ i rec to r
ildicating they have complied with the determina-
I I O : ~ , rhe charge is dismissed. If no satisfactory
. . \ ~dence of compliance is submitted. the Regional
; ;~r.ector ~niisi proceed wiih the charge uader Section
,:i bb(4)(D).'
'The st~tutory pumose c? Sections 8(b)(4)(D) and
i oik) is tc ensure that work disputes between two or
I llwe peps of employees are permanently and
. .
c , . . pediriuusiy settled.Vkt the outset then :i 1s
i lnportant to note thlt an w a r d of work is made to a
LI'OUP of employees and ~ lo t o the labor organization
\viiich represenrs them.4 In a dispute berween two
sroups of employees, each represented by a union,
tsur detmxination of dispute specifically states ihat
i he work is awsrded to those e$oyees represented
hy one of the unions, but no: io that union or its
~nembers. Thus. allegations thar 2 union discrimi-
mtes are noi relevant under Sections 8(b)(4)(D) acd
iO(k), since ihe work is amriied to the emp!oyees
rhemselves, not to the union which may represent
[hem.
In oui. view, the Board is not constituiionally
i-equired to consider allegations of unlawful discrimi-
nation a: eirher :he lO(kj or 8(b)(4)(D) stage, since
Board's Ru!es and Regulations. Senes 8. 2s amended. Sec. 102.89, et
'~ '9 .
See NL.R.B. v. Radio and Telnrsron Broudcasr Ettgineers Union, b c a i
i2iL lniernuiional Srorherhood of Elecrrical Workers. AFGCIO [Colrrmbia
Rroadcasring S ,~rrrnj , 364 U S . 573 (196i ).
+ icdeed. where the en~ployees c o n h u e to claim the work in dispute in
[he face of a d~sclaimer by their labor organimtion, ti:< Iztter's disclaimer is
Ignored and !he Board determines the jurisdictional dispute. Stage
Ernplqvees Local One. I/! TSE. A FI-ClO (Rh'O General. WOR-TV Division
rind WGR-?i'E~igrnerrs/. 219 NLRE I i65. ! i68 (l975,i.
we do not believe that a sufficientlv close riexus is ,
established between our action in awarding the work
to the employeeb and the alleged discriminztion b;,
their representative to establish that, in making the
award, the Government is authorizing, supporting, or
participating in the complained of discriminatory
practises d :he Unioz.5 Aithcugh awarding the work
!n dispute to employees represented by z un~cin may
inure to the benefit of that uruon, the award does not
place the Board imprimatur on all the orgahization's
activities, lawful or otherwise. A jurisdicticnal award
is based on certain factors indicating which group of
employees is best equipped to do the work;6 it does
not reflect the Board's a ~ ~ r o v a i of al! zsDecTs of
1 1
representation by the labor organizaticn which
represents the favored employees. The Supreme
Court clearly defined our obligation in CBS, supra at
586, "it is the Board's responsibility and duty to
3 . aecide ydiich cf two cr more emp!ciyez group;
claizing the right to perf~i-m certain work tasks is
right and then s~ecificallv to award such tasks in
V 1 ,
accordance with its decision." Such an award, in our
view, cannot be considered to authorize, require,
enforce, or foster and encourage a labor organization
to discriminate.7
Sections lo*) and 8(b)(4)(D) set up a method
adopted by Congress to "try to get jurisdictions!
dispures settled" ir! order "to solve the knotty
problems of wasteful work stoppages due to such
disputes."s If we stray from this congressionai
mandate in order to consider an issue appropr idy
considered under another section, clearly we would
vioiate the spirit of Congress' intent. In finding that
the expedited procedures for determining disputes do
not provide the appropriate forum for consideration
of invidious discrimination by a labor organization in
the representation of employees, we are not depriving
any party from raising this issue. We are mereiy
finding that such issues should be considered in the
appropriate proceeding, as set forth be!ow.
If we were to refuse to award work to a group of
empioyees on the ground that the union which
represents them has engaged i ~ . or is engaging in
unlawful discrimination, we would directly penalize
those cmployees, but only indirectly reach the
discriminating labor organization. Such an indirec:
method of preventing ilnIa-dul discr?mina;ion is not
only inefficient, it is unnecessary, since the issue of
See Had,v Andy, sura.
In making such awards, the Board considers al! relevant factors ic
determining who is entitled to the work in dispute; e.g., the ski!ls and work
involved, certifications by the Board, cnrnpany and industry practice. the
efficient ooeration of the busmess. rtc. (Inrernarional Associalion o f
~ o c h i n i s r s , ' h d ~ e hro. 17743, AFLCIG (J. 4 . ones Coralruclion conYan:%
135 NLRB 1402 (1962).)
See Handy Andy and Bell & iiowell, both supm, and the relevant cases
cited therein.
V B S , sapra.
--
' NATIONAL'
invidious discrimination can be directly addressed by
statutorily prescribed methods-designed to eliminate
the offensive practices without hanning the employ-
ees. -The union's status as exclusive representative
imposes on it the statutory obligation to represent all
employees in the unit fairly and in good faith. Tfie
right of employees to be free from invidious
discrimination in the representation afforded them
by their bargaining representative is protected by the
Act which, it has been held, makes it an unlawful
labor practice for the representative to engage in
such practices and provides employees with remedies
against such conduct.9 In giving labor organizations
their right to represent employees, the Act also
confers upon such organizations certain obligations.
As set forth in a multitude of cases,1° in the event
that a bargaining representative discriminates in such
a way as to frustrate the right of employees to fair
representation, Section 8@)(1)(A) provides a reme-
dy; if the union sponsors discriminatory hiring
practices, Section 8@)(2) provides a remedy; if one
of the parties refuses to negotiate about the elimina-
tion of offensive discriminatory terms and conditions
of employment, Section 8@)(3) or Section 8(a)(5)
provides a remedy. (See Bell & Howell.) Thus, a party
who is foreclosed from asserting unlawful discrimina-
tion in the lo@) and 8@)(4)(D) proceedings, never-
theless has available alternative proceedings under
the Act in which to seek an appropriate remedy. To
whatever extent the practices of invidious discrimina-
tion may be beyond the Board's reach, Congress has
provided other remedies, e.g., the Civil Rights Act of
1964, as amended (42 U.S.C. 2000e), and the Labor
Management Reporting and Disclosure Act of 1959
(73 Stat. 419), whereby the victims of such unlawful
activity may seek legal redress.
For the foregoing reasons, we shall not consider the
evidence represented to be alleged discrimination by
Local 393 as it has no bearing on our determination
as to which group of employees is entitled to perform
the work."
IV. EVIDENCE
A. The Work in Dispute
The work in dispute involves the digging, grading,
backfilling, and general ground preparation work
involved in the installation of sprinkler irrigation
pipe systems by the Hall-Way Contracting Compa- -
Bell & Howell, supro.
ID See, e.g. Vaca v. Sipes. 386 U.S 171 (1%7); Independent Metal Workers
Union, Local No. I (Hughes T d Company), I47 NLRB 1573 (I%+
I n r e r ~ t r o ~ I Brotherhood of Painters and Allied Trades, h a 1 Union 1066.
AFLCIO (W. I. Siebenoller Jr., Painf Company), 205 NLRB 651 (1973);
h a 1 No. 106, Gloss Boffle Blowers Associafion, AFL-CIO (Owem-Illin&,
Inc.), 210 NLRB 943 (1974). enfd. 520 F.2d 693 (C.A 6, 1975).
irrigation sprinkler systems was described by the
Employer's president to include:
The reading, laying out of the plans, the staking
out of job. By that I mean, physically going out
and marking where the sprinkler heads are going
to be placed, marking out the trench to be dug,
digging the trench, installing the pipe, installing
the low voltage wire if any and the controller, and
g a trench, putting on the heads and
other things.
In addition to ground preparation work,-the work in
dispute fits into this basic procedure anytime hand
digging work is necessary to ensure the proper
installation of pipe. For example, depending on the
size of the pipe to be installed, an operating engineer
will dig either a 6- or 8-inch-wide trench. However,
the trench diameter may not be large enough to
accommodate a sprinkler head, valve, or other
protuberance coming from the pipe. Accordingly, a
"notch" is made by excavating the dirt so that the
larger mechanism will fit. Just prior to the actual
laying of the pipe in the trench, hand digging work is
also necessary to ensure that the trench is clean and
free of any debris from other construction work
wbich is going on in the same site. Other examples
where hand "pick and shovel work" is necessary are:
(1) when a "tie-in" is made to hook up the existing
water supply line which will service the sprinklers;
(2) excavating underneath galvanized pipe to form a
"bell hole" so that a pipe wrench can be used to
tighten or loosen the pipe; (3) digging "coved
corners" to ensure that a sprinkler head near a wall
or building will be "straight and flush"; and (4)
during final inspection in the event, to name a few
In tight of our dec~aon, we find it unnecessary to consider Local 270's
contention, argued at the hearing but not pursued in its brief to the Board.
that an employer which is found to discriminate is precluded from availing
itselfof the Board's unfair labor practice proceedings.
on a job at overCelt Drive ~ducational Park which
the Employer had assigned to plumbers. The Em-
ployer placed laborers on the job and removed
plumbers. Because the job did not last a long time,
"-
sibilities, that rocks, dirt, or other backfilling clog
system, or where a "dry spot" is created by a
mn'&aled electrical box necessitating installing
mother sprinkler head, or where there is a leaky
WGe.
Prior to 1969, the Employer utilized crews consist-
tng of operating engineers who ran the trench-
digging machines, laborers who "notched" trenches
and did other "pick and shovel" work, and journey-
man plumbers who installed the pipe. With the
advent of the Landscape, Sprinkler and Imgation
Contractors Association in 1969, which provided that
irrigation plumbers shall perform all facets of
irrigation sprinkler systems, the Employer has used
only plumbers and operating engineers to do the
work, except, as discussed below, in a few instances
where the laborers have asserted a claim to do the
work. Beginning in 1972, plumbers helpers (appren-
tices or assistant journeymen, as they are sometimes
called) have been allowed to help install pipe in
Santa Clara County, as long as a journeyman is
present on the jobsite. A typical crew now consists of
four plumbers in the following categories: journey-
man, assistant journeyman, and plumber tradesman
who primarily do hand digging work and generally
assist in the operations; an operating engineer is still
used to run the trench-digging machines.
Prior to the instant proceeding, the Laborers has
asserted claims to digging and backfiing work for
imgation sprinkler installation on at least two other
occasions. In August 1975, the Laborers, through its
business agent, Jack Delgado, claimed that plumbers
should not perform digging and backfilling work on
the Casa Arnigos job. In response to statements to
the effect that the Laborers would not let any work
continue, the Employer replaced plumbers with
laborers. After the Employer continued to use
laborers, Plumbers threatened to picket if plumbers
were not again assigned to the job. At this juncture,
the Employer filed a charge with the Board.
However, at the hearing in November 1975, Laborers
apparently disclaimed the work, so that the Employ-
er used only plumbers again. In March 1976, Local
270 claimed the right of laborers to perform the work
ihe Employer continued using the laborers on ihe job
gt Evergreen Highlands. At this juncture, Local 393
l2 This cla~m completely overlooks the fact that the instant proceeding
concerns charges which the Employer brought against Local 393 because of
11s acbons to efiect a reassignment of the d~sputed work.
l3 It should be noted that the bnef submitted on behalf of Local 270
overlooks several facts in evidence: (1) although Local 270 claimed that the
Employer only ass~gned the work to employees represented by Local 393 In
1976 as a result of threatened ~ o b action, the record shows that slnce 1969
threatened to picket. The
laborers, hired plumbers, an
instant proceeding.
mployer claims that Local 393 violated
Section 8(b)(4)(D) of the Act by threatening to picket
the Employer at the Evergreen Highlands model
home tract in May 1976. On the baqjs of prior
assignments, efficiency and economy of operations,
and the skills involved, the Employer asserts that the
plumbers should be awarded the work. The Employ-
er also contends that there is no agreed-upon
voluntary method for adjudicating the dispute.
Local 393, in agreement with the Employer's
position, adds that area practice supports an assign-
ment of the disputed work to employees represented
by it. In this regard, Local 393 cites the fact that the
master agreement and appendix between the Plumb-
ers local unions and the Bay Area Landscape,
Sprinkler and Imgation Contractors Association
expressly covers the work.
Local 270 contends that there is no dispute
cognizable under Section lo@) of the Act because it
did not take any steps to force a reassignment of the
work.12 In the alternative, Local 270 claims that the
disputed work should be awarded to employees
represented by it on the basis of employer assign-
ment, the laborers collective-bargaining agreement,
economy and efficiency of operations, and skills.
Futhermore, Local 270 argues that it is not a labor
organization, but that, even if it were, the notice of
hearing should be quashed because the Northern
California District of Hod Camers, Building and
Construction Laborers had not been joined as a
necessary ~d indispensable party.13
D. Applicability of the Statute
Before the Board may proceed with a deterrnina-
tion of the dispute pursuant to Section lo@) of the
Act, it must be satisfied that there is reasonable cause
to believe that Section 8@)(4)(D) has been violated.
It is undisputed that on May 20, 1976, the business
agent for Local 393 threatened to picket the
Employer at its Evergreen Highlands jobsite due to
the fact that the Employer had assigned the work to
laborers and not to plumbers. The Employer had
assigned the work to laborers because of Local 270's
prior threats and grievance over the use of plumbers
the Employer has assigned the work to plumbers, except when Laborers has
threatened job actions; (2) Local 393 did, m fact, introduce a collective-
bargaining agreement covering the work in dispute; and (3) on October 20,
1976, at the hearing. the parties shppulated that Local 270 was a labor
organization w i t h the meaning of the Acr We also fmd no merit to Local
270's claim that there has been a failure to join a necessary and
indispensable party.
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the Overfelt Drive Educational Park project. Local
393's business agent stated that the job action would
be carried out if the plumbers were not immediately
reinstated to do the work. Accordingly, and as the
record reveals that there is no agreed-upon method
for the voluntary settlement of the dispute, we find
that there is reasonable cause to believe that Section
8(b)(4)(D) of the Act has been violated and that the
dispute is properly before the Board for determina-
tion under Section 10(k) of the Act.
E. Merits of the Dispute
Section lo@) of the Act requires that the Board
make an affirmative award of the disputed work after
giving due consideration to various relevant factors.
As the Board has stated, the determination in a
jurisdictional dispute case is an act of judgment
based on commonsense and experience in weighing
these factors. We find the following factors are
relevant in making a determination of the dispute
before us.
1. Board certification
No Board certification covering any party to this
proceeding or the work in dispute was offered in
evidence.
2. The collective-bargaining agreements
As previously discussed, the Employer is signatory
to both the Plumbers and the Laborers master
collective-bargaining agreements. Upon examination
of each of the respective agreements in evidence, we
find that each agreement arguably covers the
disputed work, and therefore the factor of collective-
bargaining agreements does not favor an award of
work to employees represented by either Local 270
or Local 393, and consequently it is not helpful in the
determination of this dispute.
3. Employer and industry practice
Since 1969, the Employer has assigned the work in
dispute to employees represented by the Plumbers,
except on two occasions, as noted previously, where
the Laborers had threatened a job action or filed a
grievance. The record reveals that employees repre-
sented by the Plumbers would have been assigned
initially to perform the disputed work at the
Evergreen Highlands project had the Laborers not
previously pressed a grievance over the use of
plumbers at the Overfelt Drive Educational Park
project. A business agent for the Plumbers testified
that Local 393 maintains a special pool of irrigation
sprinkler fitters and that these workers perform the
disputed work in the course of their installation
work. Local 270 did not present any evidence
regarding area practice, On the basis of the record
evidence, the factor of employer and area practice
favors an award of work to employees represented by
the Plumbers.
4. Economy and efficiency of operations
The Employer testified that it is more efficient for
plumbers to perform the disputed work particularly
since the installation of an imgation sprinkler system
requires the coordination of pipe-laying and hand
digging work. It was uncontradicted that, when
laborers were used on the Casa Arnigos project,
productivity, measured by the number of sprinkler
heads installed per day, fell from the plumbers
average of 30 sprinkler heads to 20 a day. The
Employer asserts that with the use of plumber
tradesmen, who not only perform digging and
backfilling work but also handle pipe, it is far more
efficient to assign the work to plumber tradesmen
than to laborers who can perform only digging work.
The factor of economy and efficiency of skill favors
the Employer's assignment of the disputed work to
employees represented by the Plumbers.
5. Relative skills and knowledge
While the record does not show that plumbers
possess greater slulls than laborers for digging and
backfilling work, the Employer testified that plumb-
ers have greater knowledge of the requirements for
certain phases of the work, such as digging "notches"
for sprinkler heads. The Employer also asserted that
knowledge of pipe specifications and the sprinkler
system's requirements is important during the actual
laying of the pipe, inspection, or emergency situa-
tions where hand digging becomes necessary to
ensure proper installation. In this light, we find that
this factor favors the Employer's assignment to
employees represented by the Plumbers.
Upon the record as a whole and after full
consideration of all the relevant factors involved, we
conclude that the employees represented by Plumb-
ers Local 393 are entitled to perform the work in
dispute. We reach this conclusion upon the facts that
the assignment is consistent with the Employer's
preference and past practice; that it is not inconsis-
tent with the agreements of the parties and is in
accord with area practice; that the employees
initially assigned to do the work who are represented
by the Plumbers possess certain knowledge which
those represented by the Laborers do not; and that
the Employer's assignment to employees represented
LOCAL UNION NO. 393, PLUMBERS 649
by the Plumbers will result in greater efficiency and
economy of operations.
Accordingly, we shall determine the dispute before
us by awarding the work in dispute to employees
represented by Local Union No. 393, United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL-CIO, but not to that Union
or its members. Our present determination is limited
to the particular controversy which gave rise to this
proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 1qk) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings and the entlre record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
Employees represented by Local Union No. 393,
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO, are entitled to
perform the digging, grading, backfilling, and general
ground preparation work involved in the installation
of sprinkler irrigation p ~ p e systems by Hall-Way
Contracting Company, Inc., at its Evergreen High-
lands project.
MEMBER JENKINS, dissenting:
Contrary to my colleagues, I find that evidence of
~nvidious discrimination by a labor organization is a
relevant consideration is making an award of work
prsuant to a jurisdictional dispute and therefore I
must dissent from their conclusion that evidence of
\uch discrimination is inadmissible in a 1qk)
proceeding for the purpose of disqualifying a union
Irom claiming the work. In my view, an award of
work, like a certification of representative, is govern-
mental action which must withstand strict scrutiny to
cnsure that it is not a vehicle for "sanctioning and
1 ndeed furthering" a labor organization's discrimina-
lory practices. The due process clause of the fifth
. I mendment bars such governmental participation in
lliscriminatory practices. The Board cannot ignore
I he existence of such constitutional commands by the
.I r-gument that no final order is reviewable by a court
Iwes in 10(k) proceedings: for the fact is such
~wceedings furnish a basis for an almost routine
I\suance of a cease-and-desist order under Section
s( h)(4)(D) of the Act.
By making an award of work, the Board confers
k.pccial benefits on a labor organization, and the
,ill-oup of employees it represents. An immediate
dlect is that the employees represented by the labor
1 brganization get to perform the work which tends to
Iwrease their allegiance to the union, and to add to
the power of that union and those it represents
because they have or control access to jobs. By such
an award, the Board is in effect designating the labor
organization with whom the employer must deal
regarding the terms and conditions of employment
for its employees, because an award of work is a
precursor to collective-bargaining obligations on the
part of both the employer and the union. A union
may also use an award of work &y the Board to
establish prior claims to the work in any subsequent
disputes.
Since an award of work establishes access to work.
to jobs, there is a direct nexus between the ~oard ' s
action and a labor organization's discriminatory
practices, because a labor organization, or the group
of employees it represents, may control individual
employees' access to those jobs. If a labor organiza-
tion precludes certain groups of employees from
working, through membership qualifications, or
representational, referral, or other practices, then an
award of work perpetuates the exclusion of whole
groups of employees from access to jobs because of
invidious considerations. Thus, not only is the Board
confemng its imprimatur on a labor organization
which discriminates, but it also is actlng as a direct
vehicle for perpetuating the discriminatory practices
by legitimizing the labor organization's right to
control access to the work.
My colleagues' argument that the work is awardeli
to a group of employees rather than to a labo:
organization is unpersuasive. The practical effec~
where a group of employees is represented by s
union is to give their labor organization the right to
claim and control the work.
Equally unpersuasive is the majority's argument
that racial discrimination need not be considered ir,
malung jurisdictional dispute awards because nc,
order results from the award at t h s stage, and.
because of the lack of an order, it cannot be said the
Government is authorizing, supporting, or participat-
ing in the discriminatory practices. However, :he
award is merely the first of a two-stage process, ~ I L
which the Board will issue an order if the loser of the
award fails to abide by it. To argue that the two-step
process insulates the Government from participation
or support is rather like arguing that state laws
requiring recording of racial covenants in deeds are
constitutional because it is only the subsequent
individual enforcement or application of the coven-
ants which effects the discrimination. The Supreme
Court has, of course, held the opposite. Shelley v.
Kraemer, 334 U.S. 1 (1 948).
I am also unpersuaded by my colleagues' argument
that the introduction of such evidence will de!ay a 1w) proceeding, the primary goal of which is an
expeditious settlement of a jurisdictional dispute. i
-4
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
do not believe that administrative efficiency can ever
serve as a legitimate excuse for the Board's failure to
adhere to the Constitution or to the requirements of
fair representatives. Nor do I find much merit in the
majority's predictions of administrative delay. If
allegations of discrimination are well founded,
supportive evidence must be in existence at the time
of the hearing. It will not take the Board long, in view
of its well-established expertise, to sift out the
substantive claims from the frivolous. Where a party
seeks to introduce evidence after the close of the
hearing, our customary procedural rules covering
"newly discovered or discoverable" evidence will
apply. Moreover, in hearings pursuant to Section
10(~) of the Act, evidence is introduced on a variety
of factors which the Board must consider in nl.1 h I I
its determination of dispute. The introducl~o~) '
evidence of invidious discrimination will no I I I ,
delay the administrative process than the inr l-t M l I I ,
tion of evidence as to area practice, econom). , 1 1 1 ~
efficiency of operations, or relative slulls, to I ~ ; I I I I V
few.
The far more fundamental question is whethc~ I 1 ) '
Board can allow itself to engage in governlllcl~l i
action which sanctions, furthers, and in fact P ; I I I I ~
pates in invidious discrimination prohibited h! 1 1 : '
Constitution. I believe that it cannot and f int l 1 1 1
the principles established by my colleagues t o h \ . I 1
contrary to the Constitution and existing i:cJt.l
law.