The International Association of Machinists

National Labor Relations Board - Board Decisions

Mar 2, 1949

81 N.L.R.B. 1108 (N.L.R.B. 1949)

In the Matter of LODGE 68 OF THE INTERNATIONAL ASSOCIATION OF
MACHINISTS AND THE INTERNATIONAL ASSOCIATION OF MACHINISTS
and MOORS DRYDocK COMPANY
Case No. 20-CD-1.-Decided March 2, 1949
DECISION
AND
DETERMINATION OF DISPUTE
STATEMENT OF THE CASE
This proceeding arises under Section 10 (k) of the Act, as amended
by Labor Management Relations Act, 1947, which provides that
"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...."
On March 29, 1948, Moore Drydock Company, herein called the
Company, filed with the Regional Director for the Twentieth Region
of the Board a charge alleging that International Association of
Machinists, an unaffiliated labor organization, and its Lodge 68, herein
jointly called the I. A. M., had violated Section 8 (b) (4) (D) of the
Act in that on or about January 28, 1948, they picketed the S. S. Earl
V. Bloomquist a vessel undergoing repairs by the Company on the San
Francisco water front, with the object of inducing the Company to
employ only machinists cleared by Lodge 68 of the I. A. M.1 There-
after, pursuant to Sections 203.74 and 203.75 of the Board's Rules and
1 The relevant portions of Section 8 of the Act, are as follows :
(b) It shall be an unfair labor practice for a labor organization or its agents-
( s s s s
(4) to engage in. or to induce or encourage the employees of any employer to
engage in, a strike or a concerted refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle or work on any goods, articles,
materials, or commodities or to perform any services, where an object thereof is : .
i # t n i
(D) forcing or requiring any employer to assign particular work to employees
in a particular labor organization or in a particular trade, craft, or class rather
than to employee in another labor organization or in another trade, craft, or class,
unless such employer is failing to conform to any order or certification of the Board
determining the bargaining representative for employees performing such work : . .
SIN. L.R.B,No 169
1108
LODGE 68 OF THE INTERNATIONAL ASSN. OF MACHINISTS 1109
Regulations, Series 5, the Regional Director investigated the charge
and provided for an appropriate hearing, upon due notice to all the
parties. The hearing was held before a hearing officer of the Board
on May 18, 20, 22, 24, 26, and June 2, 1948. East Bay Union of
Machinists, Local 1304, United Steelworkers of America, a labor-
organization affiliated with the Congress of Industrial Organizations;
and herein called Local 1304, was permitted to intervene in the:
proceedings.
At the hearing, all parties appeared, participated, 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 hearing are free from prejudicial error
and are hereby affirmed. All parties were afforded opportunity to
file briefs with the Board.
On September 30, 1948, the Board heard oral argument at Wash-
ington, D. C., in which all parties participated.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
.1. The business of the company
Moore Drydock Company is a California corporation, engaged in
the repair and construction of ships, steel erection work, and the
manufacture and repair of industrial machinery. It operates a ship-
yard at the foot of Adeline Street, Oakland, California, where it car-
ries on ship repair and ship construction work. In common with
other large shipyards in the San Francisco Bay area, it also performs
ship repair work at the cargo handling piers on the waterfronts,
both on the east side of the Bay in the vicinity of Oakland, and on
the west side, also called the San Francisco side, of the Bay. It uses
materials shipped to it from outside the State of California valued at
more than $300,000 annually, and the value of its repair work and
construction of ships exceeds $500,000 annually. Ships constructed
and repaired by it are used in carrying interstate and foreign com-
merce. There is no contention that the Company's operations do not
affect commerce within the meaning of the Act.
We find that the Company is engaged in commerce within the
meaning of the Act.
2. The dispute
a. The facts
Before July 1936, the I. A. M. had a Lodge 284 whose members
were employed on the east side of San Francisco Bay and a Lodge 68
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whose members were employed on the west side of the Bay. In
July 1936, most of the members of Lodge 284 severed relations with
the I. A. M. and became known as the East Bay Union of Machinists.
For a time they constituted themselves as an independent union. In
April 1937, the East Bay Union of Machinists affiliated itself with the
Steel Workers Organizing Committee, and thereafter formally with
United Steelworkers of America, CIO, as Local 1304.
During the same period, Lodge 68 of the I. A. M. also experienced
some changes . For many years it was represented by two business
agents whose policies and methods apparently were not in accord
with those of the Grand Lodge of the I. A. M. In March 1946, these
officials were ousted after court action initiated by the parent body,
and a Grand Lodge representative was placed in charge.
From 1936 to the spring of 1946 a cordial relationship existed be-
tween the two unions. Local 1304 gave automatic clearance to mem-
bers of Lodge 68 and the latter reciprocated. Both locals engaged in
joint strikes as well as in joint negotiations. Even after Local 1304
became a CIO affiliate, there was no apparent change in relationship
between them. The record shows that the Company was not unaware
of this course of events. It dealt with both unions contemporaneously
in the settlement of strikes, in negotiations, and even in the execution
of contracts. Thus, in 1937 the Company signed agreements with both
Lodge 68 and the East Bay Union of Machinists. The agreements
covered "machinists work." "Machinists work" referred to the work
of tool and die makers, machinists, machinists' helpers, machinists'
apprentices, machinist specialists, crane men, and certain maintenance
men employed by the Company on ship repair and construction. In
1939 and 1940 similar agreements were again executed between the
Company and both unions, covering the same classifications.
In 1941, Lodge 68 and the Company became parties to a Master
Form of Contract executed between various Pacific Coast shipyards
and AFL metal trades labor organizations, and the Company at first
refused to sign with Local 1304 on the ground that machinists work
was already covered by the Master Contract. Because of the wartime
urgency of the shipbuilding industry, and a pending strike, the Gov-
ernment interceded. The matter was referred to the Office of Produc-
tion Management (later the War Production Board), which decided
that Local 1304 was entitled to the "benefits of the master agreement"
and "subject to corresponding responsibilities." Thereupon, the
Company and Local 1304 executed a copy of the Master Contract.
Following the execution of these Master Agreements, the I. A. M.
(as distinguished from Lodge 68 which in 1941 was still friendly with
Local 1304) "reactivated" Lodge 284. Early in 1942 the Metal Trades
LODGE 68 OF THE INTERNATIONAL ASSN. OF MACHINISTS 1111
Department of the A. F. L., on behalf of the I. A. M. Grand Lodge
and Lodge 284, filed charges with the Secretary of Labor alleging that
the Company was violating the 1941 agreement by using Local 1304
machinists exclusively. The dispute was certified to the National War
Labor Board which decided that Local 1304 should continue as the
representative of the machinists unit as in the past, that the Company
employ its machinists through Local 1304, and that it require its ma-
chinists to be members of that labor organization as a condition of
employment.
In the spring of 1947, most Pacific Coast shipyards held a series
of conferences with a number of A. F. L. Metal Trades Councils and
several International Unions, including the I. A. M., from which the
agreements, dated July 1 and 2, 1947, evolved. The business agents
of Lodge 68 had already been deposed for more than a year. This
time the Company was dealing with the I. A. M. Grand Lodge itself
and with the representative of the Grand Lodge who had been placed
in charge of Lodge 68. During these conferences, the Company and
other Bay Area employers advised the labor representatives that they
were not bargaining with respect to the units for which Local 1304
acted, and that the proposed agreement would cover only the bargain-
ing units whose representatives were present and bargaining at the
conference. The Company also notified, in writing, the Bay Cities
Metal Trades Council, with which Lodge 68 is affiliated, that it did not
construe the contracts to apply to its machinists. Nevertheless, it did
sign the documents of July 1 and 2, 1947. Those agreements, to which
the Company and the I. A. M. were parties, and which covered the
classification of machinists, were to remain in effect until July 1, 1949,
and thereafter from year to year, unless either party notified the other
in writing at least 45 days but not more than 60 days before the
expiration date of intention to change or terminate. They contained
closed-shop provisions.2
Although the Company had entered into negotiations with Local
1304 for a contract (also covering machinists work) before it signed
the agreements of July 1 and 2, 1947, with the I. A. M., it did not exe-
2 The closed -shop provision in the I . A. M. agreements appears below. The closed-shop
provision in the agreement with Local 1304 is almost identical, and for that reason is not
quoted separately:
2. Hiring of Men
(a) Employer agrees to hire all workmen it may require hereunder in the classi-
fications contained in Schedule "A" of this agreement , through and from the Unions
and to continue in its employ in said classifications only workmen who are members
in good standing in the American Federation of Labor. All workmen employed
hereunder shall be required to present a clearance card from the appropriate Union
before being employed.
(b) The Unions agree , on requisition of the Employer , to furnish competent work-
men in the classifications contained in Schedule "A" for the prosecution of the
1 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cute its agreement with Local 1304 until August 5, 1947. On that
date, it entered into a contract with Local 1304 which was to remain
in effect until July 1, 1948, and thereafter from year to year, unless
either party notified the other in writing not less than 60 days before
its expiration of intention to change or terminate. This contract
contained a closed-ship provision almost identical with that contained
in the I. A. M. agreements.
The record also shows that in spite of its agreements with the I. A. M.
over a period of more than 10 years, the Company obtained its machin-
ists through Local 1304.
On January 28, 1948, the I. A. M. established a picket line at Pier
54, San Francisco (west bay), where a vessel called S. S. Earl V. Bloom-
quist was undergoing repairs under a company contract. According
to the record, employees of the Company in other crafts, although their
work was not finished, carried off their tool boxes at noon shortly after
the picket line was formed and did not return after lunch to finish their
work. The secretary of the Pacific Coast Metal Trades Council,
A. F. L., in the presence of Lodge 68's business agent, advised the
Company that the men were being called off the job because of the
I. A. M.'s picket line and the Company's refusal to use Lodge 68
machinists. Later that day, when the vessel was about to sail, Lodge
68's business agent called off the picket line. The explanation given
by the I. A. M. at the hearing for having established a picket line was
that it was for the purpose of "enforcing" its contract with the Com-
pany.
b. Contentions of the parties
The Company contends that the conduct of the I. A. M. was violative
of Section 8 (b) (4) (D) of the Act; that Local 1304, and not Lodge
68 of the I. A. M., enjoys majority representation of the Company's
machinists and, as a consequence, has a valid claim to the work in
question; and that the Board should, under Section 10 (k) of the
Act and Section 203.75 of its Rules and Regulations, certify that the
work covered by this agreement . The Employer may refuse to employ and may
discharge any employee for any just and sufficient cause.
(c) Unions agree that the workmen to be furnished to the Employer under this
agreement shall be willing to, and shall, submit to the making of such records for
the purposes of identification as are, or may be required by the Employer.
(d) If, after Employer has placed requisitions for workmen with the Union sig-
natory hereto, the Unions shall fail to supply competent workmen within forty-
eight ( 48) hours thereafter , Employer shall be free to hire the necessary workmen
when and where it chooses without regard to Union membership ; provided, however,
that such workmen, so employed, shall be required to secure a clearance card from
the appropriate Union before starting work.
(e) In the event such workmen fail to make application to the appropriate Union
within the period of time prescribed by such Union , they shall be replaced by members
of the appropriate Union when they become available.
LODGE 6 8 OF THE INTERNATIONAL ASSN. OF MACHINISTS 1113
machinists who are members of Local 1304 shall do the work involved
in the dispute.
Local 1304 contends that it has a valid claim to the work in question
for the reasons advanced by the Company; that the filing requirements
of Section 9 (h) of the Act have no application to a proceeding under
Section 10 (k) because it is neither an investigation of a question
concerning representation nor a proceeding pursuant to a charge filed
by a labor organization; and that the Board has no power in the cur-
rent proceeding to issue an order or formal certification, but should
instead issue an informal report setting forth the facts and its recom-
mendations.
The I. A. M. contends that the Company is in effect asking the
Board to certify Local 1304, a non-complying union, and in that way
is attempting to use the Board as an instrument for circumventing
the filing requirements of Section 9 of the Act; and that, in any event,
the Company failed to prove that the Respondents have engaged in
unlawful acts or that there was, in fact, a "jurisdictional dispute"
within the meaning of the Act.
c. The applicability of the statute 3
Section 8 (b) (4) (D) of the amended Act provides that labor
organizations may not engage in certain conduct for the purpose of:
forcing or requiring any employer to assign particular work to
employees 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 em-
ployer is failing to conform to an order or certification of the
Board determining the bargaining representative for employees
performing such work: . . . (emphasis added).
As stated above, the charge in this case alleges that the Respondent
I. A. M., by picketing the Employer on January 28, 1948,' in connec-
tion with the machinists' work on the S. S. Earl V. Bloomquist, was, in
effect, seeking to require the Employer to assign particular work to
3 Although the I . A M. contended , at the hearing and in its brief, that in the absence
of a prior unfair labor practice finding the Board is unable to proceed under Section
10 (k), it withdrew this contention during oral argument . In any event , we find no
merit in it . Section 10 (k) uses the language "whenever it is charged " rather than
"whenever it is found " or a similar reference to a person who "has engaged in an unfair
labor practice within the meaning of paragraph 4 (D) of Section 8 (b) " The word
"charged" is suggestive of an allegation rather than a finding or determination. We
conclude that that is all that is required before the Board may proceed to determine the
dispute under Section 10 (k).
At the hearing and in oral argument , the Employer limited the date of the picketing
to January 28, 1948
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in (or members of) e that "particular labor organization"
rather than to employees in (or members of) Local 1304, "another
labor organization." Under the statute, therefore, we find ourselves
required to proceed to "determine the dispute" pursuant to Section
10 (k) of the amended Act.
One of our dissenting colleagues, Member Houston, takes the posi-
tion that although the conduct, if proved, might be violative of
Section 8 (b) (4) (D), he does not agree that the Board is empowered
by Section 10 (k) to "hear and determine" the dispute which gave
rise to that conduct. He would interpret the language, "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 . . ."
to mean that the Board must invoke Section 10 (k) only in certain sit-
uations. (Emphasis added.) This view obviously grants to the
Board discretion to determine to what situations Section 10 (k) ap-
plies in face of the mandatory import plainly implicit in the use of
the term, "directed" which carries no such connotation.6 We have
examined the references to legislative history cited by our colleague
but find no such clear expression therein that would, in our opinion,
grant the Board the authority to override the unequivocal language
of the statutory provision.
In disagreeing with our conclusion that the controversy in this case
is a "dispute" of the type which the Board must, or usefully can,
determine under Section 10 (k) of the amended Act, our other dis-
senting colleague, Member Murdock, assumes, inter alia, that "the
picketing complained of in this case stemmed from a representation
dispute, one which the Board could have settled conclusively under
S The Board has previously held that the definition of the term "employee" in Section
2 (3) of the Act covers " in addition to employees of a particular employer, also employees
of another employer , or former employees of a particular employer , or even applicants
for employment . . . . the term must be interpreted to include members of the working
class generally , as well as persons standing in the proximate employer -employee relation-
ship." Matter of Briggs Manufacturing Company, 75 N. L . R. B. 569, 571.
8 The use of the term, "directed" in Section 10 (k) Is not fortuitous . In the original
Morse bill ( S. 858 ), the predecessor section to Section 10 ( k) contained the following
language , "Whenever it is charged that any person has engaged in an unfair labor practice
within the meaning of paragraph ( 2) (A) of section 8 (b) [now Section 8 (b) (4) (D)],
the Board is empowered to hear and determine the dispute . . .(Emphasis added.)
(93 Cong. Rec. 987 , March 10, 1947 ). When the bill was reported out by the Senate as
S. 1126 the language had been changed to include "directed" and reads, "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.. .. 11 With respect to the meaning of the term , "directed",
adopted here , see United States v. Dimmick, 112 F. 350, 351 ; Parish v. Mac Veigh, 214
U. S 124; United States Sugar Equalization Board v . P. De Ronde & Company, 7 F. (2d)
981 ; State ex rel . Frohmiller v. Hendrix, 124 P . ( 2d) 768, 771.
As to the applicability of these provisions , see also Senator Taft 's supplementary
analysis of the amendments to the Act, 93 Cong. Rec. 7002 ( June 12, 1947).
LODGE 68 OF THE INTERNATIONAL ASSN. OF MACHINISTS1115
Section 9 of the Act if the processes of that Section had been properly
invoked and a genuine question of representation existed." How-
ever, neither of the Respondents assert a claim to representation;
in fact, they readily admit that they do not represent the employees
in question. Indeed, their picketing was not for representation but
for the preferential hiring of their members to the exclusion of the
members of Local 1304-conduct which dovetails peculiarly with the
express language defining the unlawful object in Section 8
(b) (4) (D).
d. The merits of the dispute
The subject matter of this controversy is not new. As we have
already indicated, it was before the Office of Production Manage-
ment in 1941 and before the National War Labor Board in 1942 and
later. Both Governmental bodies, in discussing the controversy, di-
rected the maintenance of the status quo, i. e., that Local 1304 con-
tinue to clear the Employer's San Francisco Bay machinists. The
wartime decisional policy of not disturbing the then existing labor-
management relations was also effective in stabilizing a bargaining
pattern in the shipbuilding and ship repair industry on the Pacific
Coast. Among other things, "the unique position occupied by ma-
chinists in the collective bargaining pattern of the San Francisco
Bay Area shipbuilding industry" T was recognized when those de-
cisions were made. We also take cognizance of that fact in our con-
sideration of the present dispute.
The rivalry between the I. A. M. and Local 1304 for control of
machinists' work in the San Francisco Bay Area has also resulted in
several proceedings before the Board during the past 5 years. In
those proceedings, we had occasion to pass on the conflicting claims
of the two unions, and although other employers were involved, the
agreements and the bargaining history were either the same or
similar.
In 1943, in Matter of Bethlehem-Alameda Shipyard, Inc.,8 the Bay
Cities Metal Trades Council, A. F. of L., acting for and on behalf of
its affiliated unions, including the I. A. M., filed a petition for certifi-
cation of representatives, seeking a unit composed of all the produc-
tion and maintenance employees at the Bethlehem-Alameda Shipyard.
Local 1304 intervened, seeking a unit composed of all the machinists.
The employer in that case was a party to the same Master Agreement
to which the Employer in the case now before us was a party. In that
case, the Board considered the conflicting claims of the I. A. M. and
° Matter of Bethlehem -Alameda Shipyard, Inc, et ai., 53 N. L . R. B. 999.
8 Ibid.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 1304, including the conference held under the auspicies of the
Shipbuilding Stabilization Committee, the Master Agreement, the
ruling by the co-director of the Office of Production Management that
the Bay Cities Metal Council Agreement did not cover machinists em-
ployed in East Bay Area shipyards and that Local 1304 1 was sepa-
rately entitled to the benefits of the Master Agreement in that area,
and the ruling by the National War Labor Board upholding Local
1304's claim to have the machinists cleared by it. Taking note of
Local 1304's "separate history of bargaining in the shipbuilding
industry in the East Bay Area," the Board concluded that "although
the machinists are also covered in the Master Agreement, that agree-
ment in its application to shipbuilding concerns in the East Bay area
shipyards has been construed to exclude employees in that classifica-
tion (machinists) from the Council's unit."
In 1945, in Matter of Graham Ship Repair Company,10 Local 1304
filed unfair labor practice charges against another East Bay Area
employer, alleging discrimination and refusal to bargain. The em-
ployer in that case and the Metal Trades Council, A. F. of L., with
which the I. A. M. was then affiliated, urged a closed-shop contract as
a defense. The Board found, inter alia, that the machinists were not
intended to be covered by the closed-shop contract with the Council;
in making that finding, the Board again took into consideration the
bargaining history of the shipbuilding industry in that area, and
upheld the position taken by Local 1304.
Again in 1945, in Matter of United Engineering Company," the
Board was confronted with a proceeding involving the same rival
claims. Local 1304 filed a petition for certification of representatives
of the machinists. The Bay Cities Metal Trades Council, the I. A. M.,
and Lodge 68 of the I. A. M. intervened and invoked the Master
Agreements-the same agreements to which the parties in the case
now before us were parties-and claimed thereunder as exclusive
bargaining representatives for the machinists. The Petitioner,
Local 1304, asserted that these contracts were not intended to apply
and had not applied to the machinists. In the decision, after review-
ing the bargaining history and background, we noted that there was a
conflict in the testimony in that witnesses for the Intervenors had
testified that they had understood that the Master Agreements were
to apply to all employees, and that Mr. Joseph Moore of Moore Dry-
dock Company had testified that it was understood that the agree-
ments were not to apply to machinists of East Bay employers such as
9 Local 1304 was referred to as "Machinists " in the Bethlehem -Alameda case , ( supra).
10 Matter of W. C. and Agnes Graham, doing business as Graham Ship Repair Co.,
63 N. L . R. B. 842, end 'd 159 F. (2d) 787 ( C. A. 9).
11 Matter of United Engineering Company , 73 N. L. R. B 1310.
LODGE 68 OF THE INTERNATIONAL ASSN. OF MACHINISTS 1117
Moore. We stated that we did not have to resolve this conflict "be-
cause of the peculiar nature of the Master Agreements and because of
the bargaining history ," which persuaded us that Local 1304 and its
predecessor has been the recognized bargaining agent in the major
shipyards in the area "for at least 5 years prior to 1941 , and has con-
tinued to represent the machinists in those yards ." Accordingly, we
held :
In view of the foregoing, particularly the fact that the Peti-
tioner was given no voice in negotiating the Master Contracts al-
though it was the recognized bargaining agent for the machinists
in the East Bay yards in 1941 and the fact that the Petitioner
has continued actively to represent. the East Bay machinists since
1941, we conclude that neither of the Master Agreements pre-
clude a present election among the machinists employed in the
East Bay area.12
We come now to the negotiations in the spring of 1947 between the
Pacific Coast shipyards and the labor organizations, including the
I. A. M., which resulted in the Master Agreements of July 1 and 2,
1947. The Bay Area employers, including Moore Drydock Company,
took the position at the conferences that the agreements would not
apply to the units represented by Local 1304, and at a meeting of the
subcommittee negotiating the changes in the agreements these employ-
ers, including Moore Drydock Company, objected to a form of agree-
ment that might be interpreted as covering employees other than those
whose representatives were present and bargaining at the conference.
These employers had asked for written evidence of the understanding
that these agreements were not to cover the machinists represented
by Local 1304; because of the coast-wide nature of the agreements,
the union refused to make any written changes in the documents.
It is manifestly clear on this record, therefore, that the same.
pattern of collective bargaining which was in effect during the period
preceding the 1947 negotiations (as also shown in the aforementioned
cases involving other employers) continued in effect without changes
thereafter, and that the 1947 Master Agreements, which the I. A. M.
asserted here, did not disturb the bargaining pattern and therefore
did not apply to the Employer's machinists.
Moreover, even if we assumed, argwendo, that no persuasive pattern
of collective bargaining existed and that the Master Agreements had
been intended to apply to the Employer's machinists, the union-
security provisions of the contracts would nevertheless have been in-
valid and, therefore, unenforceable in any event. The record shows
12 Id., at pp. 1312-1313.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that on January 28, 1948, when the picketing of the S. S. Earl V.
Bloomquist occurred, the I. A. M. not only did not enjoy majority
status but it also did not represent, according to the testimony at the
hearing, any of the Employer's machinists. This was the fact not
only on January 28, 1948, but also at the time the Master Agreements
were executed on July 1 and 2, 1947.
Under the Act, both before and after it was amended, a labor organi-
zation could enter into a union-security agreement with an employer
only if, among other things, it was "the representative of the em-
ployees as provided in Section 9 (a), in the appropriate bargaining
unit covered by such agreement when made" (Section 8 (3) of the
National Labor Relations Act and Section 8 (a) (3) of the Act as
amended by the Labor Management Relations Act, 1947). Section
9 (a) describes the representative as one "designated or selected for
the purposes of collective bargaining by the majority of the employees
in a unit appropriate for such purposes." In accordance with these
statutory requirements, the Board has refused to effectuate union-
security agreements to which labor organizations were parties where
those organizations did not represent a majority of the employees in
that unit. The courts have uniformly upheld these decisions.13
We conclude, therefore, that on January 28, 1948, and thereafter,
the I. A. M. was not lawfully entitled to the preferential hiring de-
manded by it under the union-security provisions of the 1947 Master
Agreements, because those provisions were unenforceable if not invalid
as a matter of law,14 and that, in any event, those agreements had not
been intended to apply, and did not apply, to the Employer's machin-
ists. Under the circumstances, the I. A. M. had no lawful basis on
which to predicate its claim to the work in dispute on January 28,
1948, when the picketing of the S. S. Earl V. Bloomquist occurred.
We turn now to the claim of Local 1304 to the Employer's machinists
work :
The record shows conclusively that Local 1304 has in fact been rec-
ognized by the Employer as exclusive bargaining representative of
the Employer's machinists for more than 10 years. Moreover, unlike
the I. A. M. which, according to the record, apparently had no mem-
bers in the Employer's employ, Local 1304 was in fact the majority
representative of the machinists who were also members of that union.
In addition, Local 1304 had an agreement with the Employer contain-
ing union-security provisions requiring preferential hiring, which was
executed on August 5, 1947, (after the date of the enactment and
before the effective date of the Act) for a period of less than 1 year.
13 N. L. R. B. v. Mason Manufacturing Company, 126 F. ( 2d) 810 C. A. 9) ; Y. L. R. B.
v. National Motor Bearing Co., 105 F. (2d) 652 ( C. A. 9).
11 See Matter of C. Hager & Sons Hinge Manufacturing Co., 80 N . L. R. B. 163.
LODGE 6 8 OF THE INTERNATIONAL ASSN. OF MACHINISTS 1119
Consequently, the union-security provisions in Local 1304's agree-
ment were preserved by Section 102 during its term 15
We conclude, therefore, that on January 28, 1948, when the picket-
ing occurred, and during the existence of its contract, Local 1304 had
a valid claim to preferential hiring, and was entitled to the work in
dispute. We are obliged, however, to limit this finding to the period
protected by the statute (Section 102), including January 28, 1948,
(which was within that period), but not extending beyond July 1,
1948, the expiration date of the contract. We are constrained to do
so because of the effect of Sections 8 (a) (3) and 9 (e) of the Act, as
amended. It does not appear that Local 1304, subsequent to the
expiration of its contract, was authorized to make a union-security
agreement by a majority of the employees in the bargaining unit in
question eligible to vote, or that Local 1304 even filed a petition for
such authorization under section 9 (e) of the amended Act 16 It is
apparent that any affirmative determination by the Board now award-
ing the work to Local 1304 would, in the absence of compliance with
the provisions of Section 9 (e) by that union, be tantamount to award-
ing it a closed shop or even the lesser forms of security provisions
contrary to the prohibition and limitations contained in the Act_
DETERMINATION OF THE DISPUTE 17
On the basis of the foregoing findings of fact, and on the entire
record in this case, the Board makes the following determination of
the dispute, pursuant to Section 10 (k) of the amended Act:
1. At no time on or after January 28, 1948, has Lodge 68 of the
I. A. M. or the I. A. M. been lawfully entitled to force or require
Moore Drydock Company, San Francisco, California, to assign ma-
15 Section 102 provides as follows :
No provision of this title shall be deemed to make an unfair labor practice any
act which was performed prior to the date of the enactment of this Act which did
not constitute an unfair practice prior thereto , and the provisions of Section 8 (a)
(3) and 8 ( b) (2) of the National Labor Relations Act as amended by this title shall
not make an unfair labor practice the performance of any obligation under a colt
lective bargaining agreement entered into prior to the date of the enactment of this
Act, or ( in the case of an agreement for a period of not more than one year ) entered
into on or after such date of enactment , but prior to the effective date of this title, if
the performance of such obligation would not have constituted an unfair labor prac-
tice under Section 8 (3) of the National Labor Relations Act prior to the effective
date of this title, unless such agreement was renewed or extended subsequent thereto.
(Emphasis added.)
16As Local 1304 has not complied with the filing requirements of Section 9 (f), (g),
and (h ) of the amended Act, the Board could not have conducted such an election even
if requested to do so.
19 Our dissenting colleague, Member Murdock, in discussing the determination made
herein, states "it does not operate either as an order proscribing unfair labor practices
or as a certification of representatives defining legal relationships of the parties." A
reading of the statute makes it clear that no such disposition is required . This proceed-
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chinists work to their members rather than to members of any other
labor organization.
2. On or about January 28, 1948, and at all times thereafter until
July 1, 1948, Local 1304, United Steelworkers of America, CIO, was
entitled to have Moore Drydock Company, San Francisco, California,
assign the machinists work to its members. However, at no time after
July 1, 1948, has Local 1304, United Steelworkers of America, CIO,
been entitled to force or require Moore Drydock Company to assign
machinists work to its members rather than to members of any other
labor organization.
3. Within ten (10) days from the date of this Decision and Deter-
mination of Dispute, the Respondents may notify, in writing, the Re-
gional Director for the Twentieth Region for the National Labor
Relations Board as to what steps the Respondents have taken to com-
ply with the terms of said Decision and Determination of Dispute.
MEMBER MUJRDOCK, dissenting :
I do not agree with the majority's conclusion that the controversy
in this case is a "dispute" of the type which the Board must, or use-
fully can, determine under Section 10 (k) of the Act.
In January 1948 the I. A. M. picketed the Bloomquist repair job
for the purpose of inducing the Company to hire its members to per-
form machinists' work, in preference to machinists already in the
Company's employ who were members of Local 1304, a rival machin-
ists' union. The Company thereupon filed a charge alleging that the
I. A. M. had violated Section 8 (b) (4) (D) of the statute. My
colleagues of the majority apparently believe that Section 8 (b) (4)
(D) unquestionably applies 18 to this situation, and they have there-
ing being under Section 10 (k) has as its sole object the "determination" of the dispute.
It is not an unfair labor practice proceeding at this stage ; the Act purposefully postpones
that to a subsequent date. It is not a representation proceeding requiring certification of
representatives ; there is nothing in Section 10 (k) which either expressly or by implica-
tion requires the Board to follow the procedure set forth in Section 9. Rather, it is a
proceeding intended for the resolution of disputes arising under Section 8 (b) (4) (D), as
the language of Section 10 (k) plainly states.
Nor can we agree with our colleague that our determination does not specify what
the parties should do about compliance On the contrary , our conclusion that Lodge 68 of
the I. A. M. and the I . A M. at no time , on or after January 28 , 1948, had any right to
force or require the Employer to assign the work tasks in question to their members
rather than to members of any other labor organization , imposes a clear-cut obligation,
namely, to agree to discontinue picketing in furtherance of the unlawful object proscribed
by the Act.
18 Presumably , the Member of the majority would not hold that the Board is compelled
to decide this case under Section 10 (k) if they perceived no merit in the Company 's legal
conclusion stated in its charge , that the conduct complained of constitutes a violation of
Section 8 (b) (4) (D). Section 10 (k) provides : "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. . . .
(Emphasis added. ) Surely, however , the charge referred to must be one that has at
least prima facie merit.
LODGE 68 OF THE INTERNATIONAL ASSN. OF MACHINISTS 1121
fore concluded that the Board has no choice but to "determine" the
"dispute" under Section 10 (k). These conclusions rest upon certain
unexplained and debatable assumptions that I cannot adopt.
In my opinion, the language of the statute itself raises a doubt
whether this picketing to enforce a preferential hiring contract of
dubious validity 19 is within the proscriptive scope of Section 8 (b)
(4) (D). That Section defines as an unfair labor practice certain
union activity designed to compel an employer to "assign particular
work to (not hire for particular work) employees in (not members of)
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, ..." (Emphasis added.) This language
at least suggests a controversy over the proper allocation of work
as between two "trade" or "craft" groups of presently employed
workers, not a contest, such as we have in this case, between two rival
machinists' unions over which of them has the better right to prefer-
ential hiring. I believe that the Board should be perfectly sure of
its ground before it applies this language to any debatable situation,
for Section 8 (b) (4) (D) is one of the statutory limitations upon
the right to strike, and Section 13 of the Act in effect requires that
those limitations be strictly construed.20
Even assuming, however, that Section 8 (b) (4) (D) does cover
the situation in this case, I find room for serious doubt whether
Congress actually intended that the Board sliould render any "deci-
sion" under Section 10 (k) of the Act that is so futile and inoperative
as the majority's determination here.21 This "decision" of the Board
has no more effect on the legal position of the parties than an informal
advisory opinion, such as any Regional Director might render in a
conference looking toward settlement of any unfair labor practice
case, indicating that there is probable merit in the Company's charge
that the I. A. M. has violated the Act. ' It does not operate either
as an order abating unfair labor practices, or as a certification of rep-
resentatives defining future legal relationships of the parties. Neither
is it a disposition of any collateral issue not directly involved in the
19 On the merits , I do not disagree with the majority 's conclusion that the union security
provisions of the I. A. M.'s contract were invalid . But I do not believe that that question
is properly before the Board in this proceeding.
20 Section 13 provides : Nothing in this Act, except as specifically provided for herein,
shall be construed so as either to interfere with or impede or diminish in any way the right
to strike , or to affect the limitations or qualifications on that right " ( Emphasis added )
21 Despite the phrase in Section 10 (k) stating that the Board is "empowered and
directed to hear and determine the dispute out of which such unfair labor practice shall
have arisen " It is a familiar principle of statutory construction that words used in a
statute should not be literally construed , even when their literal purport is clear , if such
construction would lead to absurd and incongruous results not intended by the legis-
lature. Ozawa v. United States, 260 U. S. 194 , United States v. American Trucking Asso-
ciation, 310 U. S. 534.
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practice case. It serves no purpose whatsoever that I can
perceive. Section 10 (k) seems to contemplate that the Board shall
issue some sort of a recommendation or directive calling for action by
the parties, for it provides, in part, "Upon the compliance by the par-
ties to the dispute with the decision of the Board . . . such charge
[that is, the 8 (b) (4) (D) charge] shall be dismissed." But in
this case, the Board's "decision" only implies that the I. A. M. did
something wrongful a year ago; it does not specify what the "parties
to the dispute"-whoever they may be-should do, by way of "com-
pliance," that will result in automatic dismissal of the charge. I find
it difficult to believe that Congress actually intended the Board to
waste its own time and that of the parties in such useless procedure.22
In short, I find Sections 8 (b) (4) (D) and 10 (k) so obscure, es-
pecially when we attempt to apply them to the facts in this case, that
I believe the Board is virtually compelled to resort to the legislative
history of these Sections as a guide to their construction. Examina-
tion of that material convinces me that, whatever "disputes" may be
cognizable under Section 8 (b) (4) (D), this is not one of them,-and,
of course, if Section 8 (b) (4) (D) is not applicable to this case, we do
not even reach the question of the Board's function under the com-
panion Section, 10 (k).1 Section 8 (b) (4) (D) of the Act, as both
the proponents and opponents of the 1947 amendments in the Eightieth
Congress declared, is concerned with strikes and boycotts engendered
by jurisdictional dispules.24 The term "jurisdictional dispute" itself
is subject to somewhat varying usage, and even when it is imported
info Sections 8 (b) (4) (D) and 10 (k), certain questions as to the
scope and purport of those Sections remain unanswered. However,
this much is clear, in my opinion : the kind of jurisdictional dispute
that is the subject matter of Section 8 (b) (4) (D) is distinguishable
22 To be sure , I would be at loss to contrive any other "decision" in this particular case,
but I think the Board should refuse to attempt any determination.
23 For this reason, although I find some merit in it, I find it unnecessary to predicate
my dissent upon Mr. Houston' s theory as to the function of Section 10 (k) proceedings.
24 H R Rep No 245 on H R. 3020 , 80th Cong. 1st Sess, p 24 and p. 44; Sen. Rep.
No 105 on S. 1126, 80th Cong, 1st Sess , p 29 ; Sen. Min . Rep. No. 105, Pt 2, on S.
1126, 80th Cong, 1st Sess , p. 19; H . Con. Rep. No. 510, on H. R. 3020 , 80th Cong.,
1st Sess ., p. 44 and p. 57 ; Speech, Congressman Landis (Ind ), 93 Cong. Rec. A 1296,
March 24, 1947; Speech, Congressman Hartley (N. J.), 93 Cong Ree 3534, April 15, 1947,
Speech, Congressman Hartley (N J.), 98 Cong Rec 6540, June 4, 1947; Speech, Senator
Morse (Oreg.), 93 Cong Ree. 1890, 1910, 1911, 1912, 1913, March 10, 1947 , Speech,
Senator Lucas ( Ill.), 93 Cong . Rec 3329, April 9, 1947 (re: a jurisdictional dispute
between the I. A. M. and the Carpenters ) ; Speech, Senator Taft (Ohio), 93 Cong Ree.
3954, April 23, 1947; Speech, Senator Ives (N. Y ), 93 Cong. Ree. 4142, April 25, 1947;
Speech, Senator Murray (Mont.), 93 Cong Rec . 4155, April 25, 1947; Speech, Senator
Ellender (La ), 93 Cong. Ree. 4255, April 25, 1947; Speech, Senator Ball ( Minn ), 93
Cong Rec. 5040, May 9, 1947; Speech, Senator Taft (Ohio ), 93 Cong . Rec. 5060, May 9,
1947, Speech, Senator Pepper, 93 Cong. Ree 5118, May 12, 1947 ; Speech , Senator Ball
( Minn ), 93 Cong. Rec 5147, May 12, 1947; Speech , Senator Taft ( Ohio ), 93 Cong. Rec. 7002.
June 12, 1947.
LODGE 68 OF THE INTERNATIONAL ASSN. OF MACHINISTS 1123.
-from a question or controversy concerning representation; it is rather,
a controversy over the proper allocation of particular work tasks as
between different "classes" of workers. Typically, the workers whose
respective claims to the tasks are in conflict are members of, or repre-
sented by, different unions whose respective spheres of trade jurisdic-
tion are not in direct conflict, though there is an overlap at the bor-
ders. A jurisdictional dispute is a boundary dispute between the two
unions, usually coaffiliates, each representing or claiming to repre-
sent a theoretically different "trade, craft, or class" of employees to,
borrow the phraseology of Section 8 (b) (4) (D) itself.25 It is not a
representation dispute, the kind that is cognizable under Section 9 of
the Act, between rival or "dual" unions competing for recognition as
the exclusive bargaining agent of the very same occupational group
of employees.26 Familiar jurisdictional disputes are those between
machinists' and carpenters' unions, painters' and plasterers' unions,
boilermakers' and welders' unions, and many others, over the question
where the work of one trade or craft leaves off and the other begins.
Only to mention these is to illustrate why the controversy between
2i Authoritative writers on labor problems usually employ the term "jurisdictional
dispute" in this sense . See Byrne Horton, Dictionary of Labor Economics (1948), p. 12
("A dispute between two or more labor unions for the exclusive right to organize and,
represent employees in a particular enterprise or industry ") ; Florence Peterson , American
Labor Unions ( 1945 ), p. 258 ("A dispute ( which may or may not develop into a strike)
between two or more unions concerning the right to organize or retain membership in
a particular trade or industry ; a controversy concerning the establishment , maintenance
or clarification of jurisdictional boundary lines Since the AFL and the CIO do not
acknowledge jurisdictional boundary lines between them, it follows that jurisdictional
disputes occur only between unions belonging to the same af"iliatetd body in contrast to
rival union disputes which are conflicts between unions having different or no affiliation 11)
(emphasis added ) ; Charles 0 Gregory Labor and the Law ( 1946 ), p. 113, ("Strikes of
this sort occur frequently when the same employer hires members of two different craft
unions to work for him at the same time For instance , a general building contractor
puts carpenters to hanging metal doors and the metal workers, who are engaged else--
where on the operation , strike because they are not given this work to do. They claim
that the work should be theirs because they have always hung materials made of metals.
And the carpenters claim that the work is properly theirs because they have always hung
doors, even if they had always been made of wood . If the general contractor gives
the job to the metal workers, the carpenters will strike. If he does not, the metal workers
will remain on strike . In either event, the whole operation may come to a halt.") ;
Millis and Montgomery . Organized Labor (1945 ), p. 274 ("Disputes over jurisdiction
do not occur between craft unions alone History of the labor movement shows that
there have been numerous disputes and struggles between overlapping industrial unions
..." ( emphasis supplied ) ). Senator Morse inserted in the Congressional Record ( 93 Cong.
Rec. 1890, March 10, 1947) a special study of various types of jurisdictional disputes in
which he stated , inter ilia, "Disputes arising between the CIO and the AFL have gen-
erally been termed "jurisdictional disputes ," but strictly speaking they do not fall within
this category . . . . Thus, a rival-union dispute differs from a jurisdictional dispute in
that the latter is concerned with claims to job or kinds of work ; whereas in a rival-union
dispute the unions recognize no jurisdictional boundaries between them , but each claims
the right to represent the same workers. Of course, the rival -union dispute is not limitedt
to AFL and CIO controversies but extends to disputes between independent unions and,
affiliated unions as well").
28 See Peterson , Morse, loc. cit ., supra.
829595-50-vol. 81-72
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two rival machinists' unions in this case is not a "jurisdictional dis-
pute."
The picketing complained of in this case stemmed from a representa-
tion dispute, one which the Board could have settled conclusively
under Section 9 of the Act if the processes of that Section had been
properly invoked and a genuine question of representation existed.
And if, as it would appear, the I. A. M. picketed the Company's oper-
ation to secure illegal discrimination in favor of its members, as well
as recognition as the collective bargaining representative of the Com-
pany's machinists, the Company had recourse under Section 8 (b) (2)
of the Act 27 Unlike the majority, I am unwilling to indulge in the
tacit assumption that Congress intended Section 8 (b) (4) (D) to
duplicate these other statutory remedies. I would find that this case
is not cognizable under Section 10 (k) because the alleged violation of
the Act is not a violation of Section 8 (b) (4) (D), whatever else it
may be.
For these reasons, I would quash the notice of hearing issued herein,
and terminate the proceeding without opinion on the merits.
MEMBER HOUSTON dissenting :
The charge filed in this case alleges that International Association
of Machinists and its Lodge 68 violated Section 8 (b) (4) (D) of the
Act by picketing a vessel undergoing repairs in the Company's dry-
dock, with the object of forcing or requiring the Company to assign
the machinists' work to members of Lodge 68 rather than to employees
in Local 1304 of the United Steelworkers of America, C. I. 0. As of
this date no complaint on this charge has been issued by the General
Counsel.
Although the charge alleges conduct which, if proved, might be
violative of Section 8 (b) (4) (D), I am unable to agree with my col-
leagues of the majority that the Board is empowered by Section 10 (k)
to "hear and determine the dispute which gave rise to that conduct.
My disagreement in this connection stems mainly from my inability
to conclude, as do they in effect, that Sections 8 (b) (4) (D) and
10 (k) are coterminous and that the Board must therefore proceed
under the latter section to resolve all the disputes which give rise to
activity alleged, by way of a charge, to be violative of the former sec-
tion. In my opinion, the majority's decision in this respect rests upon
a literal interpretation of Section 10 (k) which would lead to results
27 This Section provides that it shall be an unfair labor practice for a labor organization :
"(2) to cause or attempt to cause an employer to discriminate against an employee
in violation of subsection 8 (a) (3). . . .
Section 8 ( a) (3) provides that it shall be an unfair labor practice for an employer "to
encourage or discourage membership in any labor organization " by discrimination "in
regard to hire or tenure of employment ." See Matter of National Maritime Union of
America ( The Texas Company ), 78 N. L. R. B. 971
LODGE 68 OF THE INTERNATIONAL ASSN. OF MACHINISTS 1125
that are absurd or wholly impracticable. Moreover, it is plainly
inconsistent with the intention of Congress as expressed in the legisla-
tive history.
The original versions of Sections 8 (b) (4) (D) and 10 (k) were
contained in similarly numbered sections in S. 1126, the Senate com-
mittee bill.28 It is manifest from legislative debate on S. 1126 that
Section 8 (b) (4) (D) therein sought to outlaw all strikes or boycotts
arising from a dispute between two labor organizations competing for
the same work, when the purpose of the striking or boycotting union is
to obtain that work, although it is not entitled to it by virtue of a Board
order or certification, and when the employer occupies a neutral posi-
tion and is indifferent as to which of the labor organizations involved
in the controversy performs the work. 29 It is further manifest that
Section 10 (k) therein was intended to accomplish a speedy termina-
tion of the activity proscribed by Section 8 (b) (4) (D) by providing
a procedure designed to effect a settlement of the dispute which gave
rise to that activity 30
The final version of Section 8 (b) (4) (D),31 while embodying the
Senate bill provisions relating to strikes or boycotts arising from
disputes of the type defined above, was enlarged to encompass vir-
tually any strike or boycott designed to interfere with the assignment
se So far as is material herein , the relevant portions of the S. 1126 version of Section
8 (b) (4) (D ) are as follows:
It shall be an unfair labor practice for a labor organization or its agents . . . to
engage in , or to induce or encourage the employees of any employer to engage in, a
strike or a concerted refusal to use, manufacture , process, transport , or otherwise
handle or work on any goods , articles , materials , or commodities or to perform any
services in the course of their employment . . . for the purpose of forcing or requir-
ing any employer to assign to members of a particular labor organization work tasks
assigned by an employer to members of some other labor organization unless such
employer is failing to conform to an order or certification of the National Labor Rela-
tions Board determining the bargaining representative for employees performing
such work tasks.. . .
The relevant portion of Section 10 ( k) therein reads 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 or to appoint an arbitrator to hear and determine such
dispute , unless, within ten days after notice that such charge has been filed, the
parties to such dispute submit to the Board satisfactory evidence that they have
adjusted , or agreed upon methods for voluntary adjustment of the dispute.
Upon compliance by the parties to the dispute with the decision of the Board or the
arbitrator appointed by the Board or upon such voluntary adjustment of the dis-
pute, such charge shall be dismissed . The award of an arbitrator shall be deemed a
final order of the Board.
29 Speech , Senator Smith, 93 Cong . Rec. 4416, April 30, 1947 ; Speech, Senator Pepper,
93 Cong. Rec. 6672-6673, June 6, 1947. See also in this connection Senator Lucas' remarks
made before S. 1126 was reported , but illustrative of the type of dispute meant to be
covered by some legislators. 93 Cong Rec . 3329-3330, April 9, 1947
30 See, for example, Senator Ellender 's statement that "In jurisdictional strikes we
have provided for the appointment of an arbitrator . . He would have the power to
stop jurisdictional strikes." ( Emphasis added .) 93 Cong Rec . 4261, April 28, 1947.
As appears from footnotes 28 and 33, the Board was given like power.
11 See footnote 1, supra.
1126 DECISIONS OF NATIONAL : LABOR RELATIONS BOARD
of work by the employer.32 However, the final version of Section 1a
(k) remained in all respects here material the same as the original
one.33 The crucial question at this point, therefore, is whether, by
permitting the S. 1126 version of Section 10 (k) to stand virtually
unaltered while at the same time expanding the same bill's version
of Section 8 (b) (4) (D), Congress intended (a) to confine Section
10 (k) to the types of disputes for which it was originally designed,,
or (b) to make Section 10 (k) coterminous with the new version of
Section 8 (b) (4) (D). The realities of industrial relations when
coupled with the available legislative history compel a rejection of
the latter view adopted by my colleagues and advocacy of the former
view. For, granting, as we must, that Section 10 (k) was designed
to effect a speedy settlement of disputes which give rise to illegal
strikes or boycotts, a literal construction of 10 (k) would result in
applying it to all disputes giving rise to activity proscribed by Sec-
tion 8 (b) (4) (D) with the grave danger that, in some instances we
would be resorting to an adventure into futility. For instance, in a
dispute in which the employer is disposed to favor the employees in
a particular labor organization, trade, craft, or class over those in
another labor organization, trade, craft, or class, a determination by
the Board unless acceptable to the employer is highly unlikely to
result in industrial peace, for upon his failure to assign the disputed
work in accordance with the Board's decision the strike or boycott
would undoubtedly continue, perhaps with renewed vigor. I cannot
believe that Congress actually intended the Board to involve itself
in proceedings so likely to serve no useful purpose.-34
The instant case involves an employer who is disposed to have one
union, Local 1304, do the work in question. This is evident from
the fact that despite its almost identical closed-shop agreements cov-
ering machinists' work with the I. A. M. and Local 1304 and extending
over a period of years, the Company assigned its work to machinists
represented by Local 1304. It is demonstrated further by the follow-
ing excerpt from the Company's brief :
Moore wishes to continue to use the machinists that it has em-
ployed for years and who are acquainted with Moore's method
of operations, who are known by the management, and who have
the other advantages of a permanent staff of skilled mechanics.
"Speech , Senator Murray , 93 Cong. Rec . 6662, June 6, 1947 ; Speech, Senator Pepper,
93 Cong. Rec . 6673 , June 6, 1947 ; Speech , Senator Taft , 93 Cong. Rec . 7002, June 12, 1947.
33 Whereas the original version of Section 10 (k) authorized the Board or a Board ap-
pointed arbitrator to "hear and determine " disputes , the section as amended vested that
responsibility in the Board alone.
84 It is a well recognized rule of statutory interpretation that a literal construction which
would lead to absurd or incongruous results should be avoided, even where the literal
purport of the words used is clear.
LODGE 68 OF THE INTERNATIONAL ASSN. OF MACHINISTS1127
It does not with [sic] to have to discharge its machinists as a
group and substitute others obtained from IAM. The IAM sub-
stitutes for its regular employees may or may not be competent
mechanics. In any event, they would have to be trained to the
Moore method of operation; they would have to become accus-
tomed to the tools used by Moore; tools which are elaborate and
expensive. For this reason, Moore would be adversely affected
should the Board determine that the entire craft of EBUM-CIO
machinists must be discharged and another group from the IAM
hired in their place.
Although the majority has fortuitously determined the dispute herein
in accordance with the Company's desires, I question the validity and
efficacy of a proceeding which is only likely to accomplish its purpose
if determined a certain way.
The legislative history makes it plain that Congress did not intend
such a construction as that adopted by the majority. This is clearly
demonstrated by the fact that, despite the conference revision of Sec-
tion 8 (b) (4) (D) adverted to above and notwithstanding the fact
that the original language of Section 10 (k) perpetuated by the con-
ferees was susceptible of an interpretation that would render it co-
extensive with the enlarged Section 8 (b) (4) (D), congressional
spokesmen continued to construe that language, later enacted into
law, as applicable only to the limited type of dispute for which it
was originally designed. Thus, although the conference committee
version of Section 8 (b) (4) (D) makes it applicable "not only to
strikes over the assignment of particular work to one union rather
than another, but also to the assignment of work to one union rather
than another group of employees," 35 the House conferees reported that
Section 10 (k), as it emerged from conference in virtually its original
form, "would empower and direct the Board to hear and determine
disputes between unions giving rise to unfair labor practices under
Section 8 (b) (4) (D) (jurisdictional strikes)." 36 (Emphasis added.)
And Senator Morse viewed the section as requiring the Board to
determine "What are the proper work-task allocations as between
unions involved in jurisdictional strikes." 37 (Emphasis added.)
Clearly, therefore, Congress did not regard the two sections as
coterminous.
In view of all the foregoing, I am persuaded that Congress intended
that the procedure established in Section 10 (k) of the Act be utilized
only to determine the disputes for which it was originally designed,
"Speech , Senator Taft , 93 Cong. Rec. 7002 , June 12, 1947.
3° House Conference Rep. No. 510, on H. It. 3020, p. 57.
27 93 Cong. Rec. 6610 , June 5, 1947.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
namely, those which result from controversies between two labor
organizations competing for the same work when the purpose of the
striking or boycotting union is to obtain that work, although it is not
so entitled by virtue of a Board order or certification, and when the
employer occupies a neutral position and is indifferent as to which
of the labor organizations involved in the controversy performs the
work. In such cases the Board's resolution of the dispute might well
lead to the termination of the strike or boycott engendered by the dis-
pute for the neutral employer would willingly assign the work to either
of the competing labor organizations in accordance with the Board's
decision. However, should the union charged with a violation refuse
to abide by a Board determination adverse to it, the issuance of a
complaint would follow.
Since, as already pointed out, the instant dispute is not of the afore-
mentioned type, I would not take cognizance of it under Section 10
(k), and would decide the pending unfair labor practice charges in
accordance with customary administrative processes upon a complaint,
if one is issued by the General Counsel.