United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada

National Labor Relations Board - Board Decisions

Dec 24, 1953

107 N.L.R.B. 542 (N.L.R.B. 1953)

542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
LOCAL 562, UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND PIPE FITTING
INDUSTRY OF THE UNITED STATES AND CANADA, AFL;
CARPENTERS DISTRICT COUNCIL OF ST. LOUIS; LOCAL
527, CEMENT FINISHERS; LOCAL 110, INTERNATIONAL
HOD CARRIERS', BUILDING & COMMON LABORERS' UNION
OF AMERICA, AFL; LOCAL 396, INTERNATIONAL ASSO-
CIATION OF BRIDGE, STRUCTURAL & ORNAMENTAL IRON
WORKERS, AFL; LOCAL 1, INTERNATIONAL BROTHER-
HOOD OF ELECTRICAL WORKERS, AFL and CHARLES E.
MYLES. Case No. 14-CD-36. December 24, 1953
DECISION AND DETERMINATION OF DISPUTE
This proceeding arises under Section 10 (k) of the Act, which
provides that "Whenever it is charged that any person has en-
gaged in an unfair labor practice within the meaning of para-
graph (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 November 13, 1952, Charles E. Myles filed with the
Regional Director for the Fourteenth Region a charge alleging
that Local 562, United Association of Journeymen and Appren-
tices of The Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL, herein called Plumbers; Carpenters
District Council of St. Louis, herein called Carpenters; Local
527, Cement Finishers; Local 110, International Hod Carriers',
Building & Common Laborers' Union of America, AFL; Local
396, International Association of Bridge, Structural & Orna-
mental Iron Workers , AFL; and Local 1, International Brother-
hood of Electrical Workers, AFL, have engaged in and are en-
gaging in certain activities proscribed by Section 8 (b) (4) (D)
of the Act. It was alleged, in substance, that the Plumbers and
the Carpenters had induced and encouraged employees of H. A.
Dailey , Inc., herein called Dailey , to engage in a concerted
refusal to work in the course of their employment with an object
of forcing or requiring Northwest Heating Company, herein
called Northwest, to assign particular work to members of the
Plumbers rather than to its own employees who are members
of Local 2, International Union of Operating Engineers, AFL,
herein called the Operating Engineers.
Thereafter, pursuant to Section 10 (k) of the Act and Sections
102.71 and 102.72 of the Board's Rules and Regulations, the
Regional Director investigated the charge and provided for an
appropriate hearing upon due notice to all the parties. The
hearing was held before Harry G. Carlson, hearing officer, on
July 2, 9, and 10, 1953. All parties, except Local 110, Inter-
national Hod Carriers', Building & Common Laborers' Union of
America, AFL, appeared at the hearing and were afforded full op-
portunity 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 prej-
107 NLRB No. 134.
LOCAL 562, UNITED ASSOCIATION OF JOURNEYMEN, ETC 543
udicial error and are hereby affirmed . i The charging party filed
a brief with the Board.
Upon the entire record in the case , the Board makes the fol-
lowing:
FINDINGS OF FACT
I. THE BUSINESSES OF NORTHWEST AND DAILEY
Northwest Heating Company , a partnership comprised of
Charles E . Myles , the charging party , and Emanual Schermer,
is engaged in the business of installing heating , refrigeration,
and air - conditioning equipment . Its principal place of business
is in St. Louis , Missouri . During the last fiscal year , Northwest
together with Lloyds ', Inc., a Missouri corporation in which
Myles and Schermer are the principal stockholders , performed
services and furnished materials on jobs inthe State of Illinois
valued in excess of $ 25,000.
H. A. Dailey , Inc., is a Missouri corporation which , during
the past year , furnished services and materials in excess of
$60,000 in value to a concern over which we had previously as-
serted jurisdiction . Dailey is presently engaged in performing
services for the Army Records Center which when completed
will total $ 300,000 in value.
Accordingly , the Board finds that Dailey clearly is engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 562, United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United States
and Canada, AFL, Carpenters District Council of St. Louis, and
Local 2, International Union of Operating Engineers , AFL, are
labor organizations within the meaning of the Act.
III. THE DISPUTES
A. The facts
The Operating Engineers was certified as the collective-
bargaining representative of Northwest ' s employees on October
16, 1951 (Case No. 14 - RC-1583 ) and presently represents those
employees . A dispute of long standing exists between the
Plumbers and the Operating Engineers , the Plumbers main-
taining ( 1) their exclusive right to the installation of heating,
refrigeration , and air - conditioning equipment in new construc-
tion; and ( 2) the absence of any such right on the part of the
'The charging party requested that the charge be withdrawn as to all parties except the
Plumbers and the Carpenters . The hearing officer approved that request As the evidence
adduced at the hearing in no way connects these other local unions to the strike activity
alleged to be violative of Section 8 (b) (4) (D ), we affirm the hearing officer ' s action.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Operating Engineers , other than to do repair work on such
equipment . As a result of this dispute , the Plumbers on 2 prior
construction jobs caused or threatened a walkout of some of the
members of the building trades crafts in protest of Northwest's
work being done by members of the Operating Engineers,
rathen than members of the Plumbers. An employee on 1 of
those jobs testified that the electricians , in walking off the job
30 minutes after a Plumbers' representative appeared, "said
they were going fishing , they were tired of working."
In November of 1952, Northwest , Lloyds', Inc., and Dailey
were engaged in construction work for Brown & Sons Realty
Co., herein called Brown , the general contractor on a con-
struction job at 8230 Forsythe Ave., Clayton, Missouri , herein
called the Forsythe job. Dailey employed carpenters who were
represented by the Carpenters. 2
Payne, secretary of the St. Louis Building and Construction
Trades Council, testified that at a meeting of the Council on
November 12, a Plumbers ' representative reported that the
Plumbers were experiencing difficulties on several jobs.
According to Payne, no mention was made of the Forsythe
job.3 The union representatives present agreed to render all
possible assistance tothe Plumbers . ACarpenters' representa-
tive was present at that meeting . Both the Carpenters and the
Plumbers are members of the Council, while the Operating
Engineers is not.
On November 12, 1952, Lasky, secretary -treasurer of
Brown , learned from Dailey's Foreman DeClue that he had
"orders" that the carpenters would not work the next day."
DeClue stated that he was not certain as to the cause of the
difficulty. Lasky then called Payne, who stated that the matter
concerned the Plumbers. On Payne's suggestion , Lasky spoke
with Henry, a business agent of the Plumbers . In response to
Lasky's inquiry as to why there was to be a work stoppage on
the Forsythe job, Henry stated that the heating and air-
conditioning work was being done by men from a union not
authorized to do that type of work , and that only the Plumbers
were authorized by the AFLto do that work on new construction.
Henry further explained that men were to be pulled off the
Forsythe job and that the only way such a walkout could be
averted was for Brown , the general contractor , to let this
type of work to a subcontractor employing members of the
Plumbers.
2 While the carpenter foreman was a member of Local 5 of the Carpenters , the record
fails to establish to which local the carpenters themselves belonged The carpenters, how-
ever , were subject to the Carpenters' working rules while on the Forsythe job.
3 The minutes of that meeting apparently make no reference to the Forsythe job
4DeClue also told Lasky that the cement finishers would not be on the job the next day.
After speaking with DeClue, Lasky received notice from the electrical subcontractor that
the electricians would not be on the job the following day as "they had received certain
instructions that they were not to report for work."
LOCAL 562, UNITED ASSOCIATION OF JOURNEYMEN , ETC. 545
DeClue5 testified that Carpenters ' Business Agent Reiter6
came to the Forsythe job on Wednesday , November 12, and
told him there was some kind of "trouble about heating" °
and that the carpenters should go "fishing" for a couple of
days. DeClue, upon receiving these instructions from Reiter,
instructed the carpenters to report to another jobthe next day.
The carpenters did not work at the Forsythe job the following
day. Indeed , they did not report to that job until November 17,
the following Monday. DeClue testified that on November 17,
" [Reiter ] came out again and said that , as far as he knew, there
hadn't been anything settled ." Reiter walked around and spoke
to some of the carpenters on this occasion . DeClue also spoke
with the carpenters , telling them that the union "trouble isn't
settled so we just have to get off ." All the carpenters then
left the Forsythe job. Other groups , electricians and cement
finishers , also appear to have left the job . According to DeClue,
Reiter did not mention the dispute over the installation of
equipment , but DeClue presumed that was the reason behind
Reiter's instructions . At the time the carpenters left the job,
they apparently were in ignorance of the purpose behind the
stoppage.
Several days later , the carpenters returned to work on the
Forsythe job. As of the time of the hearing, there had been no
adjustment of the dispute between the Plumbers and the
Operating Engineers . Nor has the Plumbers retracted their
demand that Brown let the disputed work to a subcontractor
hiring its members. Northwest , however , has continued its
work on the Forsythe job. Notwithstanding this, no subsequent
stoppage has occurred . At the time of the hearing, Northwest
was nearing completion of its work on the Forsythe job.
B. Contentions of the parties
The charging party contends that the Plumbers and the
Carpenters induced Dailey's employees to strike for the pur-
pose of forcing Brown, the general contractor , as well as
5 DeClue was a member of Local 5 of the Carpenters and was subject to the latter's
1949 Working Rules, which stated in part:
Rule 10--Every member shall cease work when ordered to do so by an authorized
official [ business agent] of the District Council
Rule 13-- No member shall . . work with a nonunion man.
6Reiter's duties are set forth with particularity in the Carpenters ' constitution and bylaws,
which state in part:
Section 18- -Business agents shall be required to .. , enforce the local Trade Rules
of the organization ... They shall have the power to order all men to quit work on a
job where trouble exists. . . .
TMyles had already informed DeClue that the "trouble" concerned jurisdictional problems
over the installation work. DeClue admits that he later became aware that the difficulty was
one between the Plumbers and the Operating Engineers
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Northwest, to assign the disputed installation work through
another subcontractor to members of the Plumbers rather than
to Northwest's own empoyees who were represented by the
Operating Engineers, thereby violating Section 8 (b) (4) (D) of
the Act.
The Carpenters contends that it did not induce or participate
in any work stoppage at the Forsythe job, and-, even assuming
that fact, its purpose was not to force a change in Northwest's
assignment of work, and that, in these circumstances, it did
not violate Section 8 (b) (4) (D).
The Plumbers contends that it did not induce or participate
in the Forsythe work stoppage, and even assuming so, its
activity was not meant to cause a reassignment of work but
only to cause Brown to sever its contract with Northwest and
let out the work to a new subcontractor. It is argued by the
Plumbers that this conduct, at most, might result in a viola-
tion of Section 8 (b) (4) (A), not of Section 8 (b) (4) (D).
C. Applicability of the statute
Before we may proceed with a determination of a dispute
pursuant to Section 10 (k) of the Act, we must be satisfied that
reasonable cause exists to believe that Section 8 (b) (4) (D) of
the Act has been violated.8
For the foregoing section to be applicable, two elements are
essential: (1) The responsibility of the Plumbers and the
Carpenters for the work stoppages; and (2) the existence of the
proscribed object behind such stoppages. These elements will
be discussed in the following paragraphs.
1. Responsibility
As indicated above, both the Plumbers and the Carpenters
contend that they are in no way responsible for the work stop-
8See, e.g., Local 26, International Fur & Leather Workers (Winslow Bros. & Smith Co ),
90 NLRB 1379; Truck Drivers and Chauffeurs Union, Local 705 (Direct Transit Lines),
92 NLRB 1715; International Hod Carriers Local 231 (Middle States Tel. Co. of Ill.), 91
NLRB 598; Longshoremen's Locals 13 & 48 andSailors Union of Pacific (W. R. Chamberlain &
Co.), 94 NLRB 388.
The relevant portions of Section 8 (b) (4) (D) are as follows:
8 (b) It shall be an unfair labor practice for a labor organization or its agents--
(4) to engage in, or to induce or encourage the employees of any employer to engage
in, a strike or 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. .. (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 employees in another
labor organization or in another trade, craft, or class, unless such employer is failing
to conform to an order or certification of the Board determining the bargaining rep-
resentative for employees performing such work. .
LOCAL 562, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 547
pages on the Forsythe job. On the one hand, the Plumbers
clearly did not engage in the Forsythe job stoppages, there
being no Plumbers ' members on that job. Nor did any Plumbers'
representative induce or encourage Dailey's employees to
leave the Forsythe job. However , there is substantial evidence
that the Plumbers wished to remove the Operating Engineers
from the Forsythe job. Indeed , on prior occasions , Plumbers'
representatives had actually caused or threatened walkouts on
other jobs on which Northwest was working . Moreover, the
Plumbers alone had a dispute with the Operating Engineers and
with Northwest.
On the other hand, the Carpenters unquestionably induced
Dailey's employees to leave the Forsythe job.9 Its object in
doing so, however , is obscure . Thus, neither the Carpenters'
representative nor the carpenters themselves communicated
the object of the stoppages to Brown, Dailey , or Northwest.
The Carpenters in fact had no dispute with any employer on
the Forsythe job.
Only by a realistic appraisal of the actions of the two Unions
in relation to their overall objective can the responsibility
issue be determined . A consideration of such actions leads
to the conclusion that there is necessarily a community of
interest between the activities of the Plumbers onthe one hand
and those of the Carpenters on the other . Thus, it appears that
the Carpenters ' strike action depends for its effectiveness upon
the communication of the strike ' s objective by the Plumbers.
Similarly, the Plumbers ' threats and demands depend for their
realization upon the exercise of economic pressure by the
Carpenters on the job site.
Furthermore , a consideration of the events on the day before
the first Forsythe job stoppage illustrates the joint course of
action of the Unions . Thus, on November 12, at a meeting of
the Building and Construction Trades Council , the union
representatives present , including a Carpenters' representative,
agreed to assist the Plumbers in certain jurisdictional dis-
putes . The minutes of that meeting stated in part:
After considerable discussion it was agreed by all [union]
delegates present to endeavor to render [to the Plumbers]
all assistance possible.
That very day Dailey ' s Foreman DeClue received instructions
from a Carpenters ' business agent that Dailey ' s employees
9The Board observed in the Amalgamated Meat Cutters , et. al., (The Great Atlantic &
Pacific Tea Co.), 81 NLRB 1052 at 1057:
A strike call may be given in forthright fashion , or informally in a manner which is
understood by the initiated . A strike may be as effectively signaled by a simple state-
ment that an employer has refused to sign a collective bargaining contract when the
union policy is "No contract , no work," as by a direct strike call from the union leader-
ship to the union members. . The critical question is not how the [union] gave
the strike call, but whether , no matter how, they did give it. (Emphasis added.)
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should not report to work on the Forsythe job the following day.
When DeClue so informed Lasky, the latter called Payne, the
Council's representative, who in turn referred Lasky to the
Plumbers. Lasky then spoke with Henry, abusiness agent of the
Plumbers, who informed Lasky that the stoppage would occur
unless Brown, the general contractor, agreed by severing its
relationship with Northwest, to let the disputed work to a sub-
contractor hiring Plumbers. This evidence establishes not only
the causal relation between the stoppages and their objective,
but also the joint nature of the Plumbers' and Carpenters'
actions. Accordingly, we find that the separate actions taken by
the Plumbers and the Carpenters, respectively, were intended
to be mutually supporting, thus resulting in joint responsibility
for each other' s acts)
2. The proscribed object
We believe that the Plumbers' and the Carpenters' endeavors
went beyond a mere demand that Brown, the general contractor,
sever its contract with Northwest and let the disputed work to a
new subcontractor. The end result sought by the stoppages
was disclosed by Lasky's testimony. As already noted, Henry
explained to Lasky that the disputed work was being done by
men from a union (Operating Engineers) not authorized to do
that type of work and that a stoppage would occur unless Brown
let that work to a subcontractor employing members of the
Plumbers. Thus, the Plumbers and the Carpenters attempted
to force Brown to assign the disputed work to members of the
Plumbers rather than to the employees of Northwest who
were represented by the Operating Engineers. That this factual
situation falls within the purport of Section 8 (b) (4) (D) of the
Act is hardly opentoquestion. Prior Board decisions so held.'1
In addition to its immediate effect upon Brown we believe
that the Unions' conduct, realistically viewed, was aimed also
at forcing Northwest itself to assign the disputed work to the
Plumbers.12 Moreover, the fact that the charging party might
10 See, e.g , Los Angeles Building & Construction Trades Council, AFL, et. al (Standard
Oil Co.), 105 NLRB 868 (Member Murdock dissenting)
"United Brotherhood of Carpenters and Joiners of America, Local 581 (Ora Collard),
98 NLRB 346; Local Union No 553 (Alton Water Co.), 106 NLRB 186 (Member Houston dis-
senting)
In these cases, the Board found reasonable cause to believe that there were violations of
Section 8 (b) (4) (D), although in the one case (Ora Collard) the union sought to compel a
direct assignment of work to employees other than those to whom the work had been in-
directly assigned, while in the other case (Alton Water Co.) the union sought to force an
indirect assignment of work to employees other than those to whom the work had been
directly assigned We find that the principle of the foregoing cases is equally applicable to
a situation like the present where a union seeks to compel an indirect assignment of work
to employees other than those to whom the work had been indirectly assigned.
12 The charging party would further prohibit union pressure against Swantner Construction
Co and "any other employer." As to Swantner Construction Co., the record fails to show
that either the Plumbers or the Carpenters induced or encouraged Swantner's employees to
engage in a stoppage The Plumbers' pressure was directed solely at Swantner itself. As
this situation does not fall within Section 8 (b) (4) (D)'s proscription, we conclude that no
LOCAL 562, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 549
have had a different remedy under Section 8 ( b) (4) (A) in no
way deters the Board from proceeding under Sections 10 (k)
and 8 ( b) (4) (D).13 These sections , 8 (b) (4) (A ) and 8 (b) (4)
( D), are not mutually exclusive.
In view of the foregoing , we conclude that the record before
us establishes that there is reasonable cause to believe that
the Plumbers and Carpenters induced and encouraged the
employees of Dailey to engage in a concerted refusal to per-
form services in order to force or require either Brown or
Northwest to assign the disputed work to members of the
Plumbers although this work had been assigned to employees
who were members of the Operating Engineers . Such factual
circumstances are sufficient to invoke the Board ' s jurisdiction
to hear and determine a dispute within the meaning of Sections
10 (k) and 8 ( b) (4) (D) of the Act. We find that this is a dispute
within the meaning of Sections 10 (k) and 8 (b) (4) (D) of the
Act and, contrary to the Unions ' contentions , that it is properly
before us for determination.
D. Merits of the dispute
At the time the Plumbers and the Carpenters sought the
assignment of the disputed installation work for members of
the Plumbers, Brown had assigned such work to Northwest
who in turn had assigned that work to its own employees
represented by the Operating Engineers . Neither Brown nor
Northwest had any bargaining relationship with the Plumbers.
The dispute in essence was therefore over an employer's as-
signment of work to members of one labor organization rather
than to members of another labor organization.
It is now well established that an employer is free to make
such assignments free of strike -pressure by a labororganiza-
tion, "unless such employer is failing to conform to an order
or certification of the Board determining the bargaining rep-
resentative for employees performing such work.t'ld Neither
the Plumbers nor the Carpenters claims to be the certified
bargaining representative for employees performing heating,
air-conditioning , and refrigeration equipment installation work.
We find , accordingly , that the Plumbers and the Carpenters
were not lawfully entitled to require Brown and Northwest
to assign the disputed installation work to members of the
dispute within the meaning of the Act was created by the Plumbers ' demands on Swantner
Furthermore , there is no evidence of any present dispute as to "any other employer," and
accordingly that contention of the charging party is without merit. See District No 9, IAM,
AFL (Anheuser- Bush , Inc.), 101 NLRB 346.
13Section 8 (b) (4) (D ) does not limit its coverages to employees of a particular employer.
Other statutory language clearly manifests a congressional intent not to delimit the scope
of Section 8 (b) (4) (D ). See Austin Co., 101 NLRB 512 Accordingly , secondary activity can,
without question , fall within Section 8 (b) (4) (D)'s proscription
MPile Drivers , Bridge , Wharf and Dock Builders , United Brotherhood of Carpenters and
Joiners of America , Local Union No 34, AFL (Klamath Cedar Company ), 105 NLRB 562;
Juneau Spruce Corporation , 82 NLRB 650.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plumbers rather that to employees of Northwest who are
members of the Operating Engineers . However, we are not, by
this action , to be regarded as "assigning " the work in question
to the Operating Engineers or to Northwest.5
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings of fact, and upon the
entire record in this case , the Board makes the following de-
termination of dispute , pursuant to Section 10 (k) of the Act:
1. Local 562, United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Industry of the
United States and Canada , AFL, and Carpenters District
Council of St. Louis are not and have not been lawfully en-
titled to force or require either Brown & Sons Realty Company
or Northwest Heating Company to assign the heating , refrigera-
tion, and air - conditioning equipment installation work in con-
nection with the Forsythe Avenue project to members of the
Plumbers rather than to members of Local Z, International
Union of Operating Engineers, AFL.
2. Within ten ( 10) days from the date of this Decision and
Determination of Dispute , the Respondents ( Plumbers and
Carpenters ) shall notify the Regional Director for the Four-
teenth Region in writing as to what steps the Respondents
have taken to comply with the terms of this Decision and De-
termination of Dispute.
Chairman Farmer , concurring:
I concur in the majority holding in this case . I am convinced
that there is reasonable cause to believe that there has been a
violation of Section 8 (b) (4) (D ) and, therefore , I join in the
ruling that the Plumbers and Carpenters were not lawfully en-
titled to the disputed work over which they claimed jurisdiction.
I feel , however , that I should comment on the views expressed
in the dissent by Member Murdock. I take it that my dissenting
colleague would dismiss this proceeding because he believes
that it is "futile and unnecessary " for the Board to make any
"determination" of the dispute . Since this strikes at the very
efficacy of the established procedure for handling jurisdic-
tional disputes , my colleague ' s statement has serious implica-
tions which trouble me greatly. This sincere expression
coming from the Member who has had the longest service of
any Board Member raises questions going to the heart of our
procedures which deserve thoughtful consideration.
At the outset , however , I do not believe that doubt , however
well founded, as to the efficacy of our remedy in this type of
case, would justify us at this stage indismissing the proceeding.
This is a Section 10 (k) proceeding, and, as I read the statute,
the Board is "directed " to hear and determine the dispute,
'5 Los Angeles Building and Construction Trades Council, AFL (Westinghouse Electric
Corporation ), 83 NLRB 477.
LOCAL 562, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 551
and this seems to me clearly to deprive us of the discretion to
do what Member Murdock thinks is appropriate.
But, while this statutory mandate is dispositive of this case,
it does not resolve the more basic questions which the dissent
raised in my mind. Like my dissenting colleague , I, too, have
grave misgivings as to the effectiveness of the 10 ( k) procedure
in this type of case. As Member Murdock points out, there
was never any real question as to whichof the disputing unions
was entitled to perform the disputed work. The Operating
Engineers had been certified by the Board to represent the
employees of Northwest , the subcontractor which had contracted
to do the work for Brown & Sons , the general contractor. So
long as Northwest continued as the subcontractor , no question
could be raised as to the right of the members of Operating
Engineers to perform the disputed work. The Plumbers' Union
had no employees on the job who could do the work , and there-
fore could accomplish their objective only by obtaining a change
in subcontractor or by forcing Northwest to discharge its
operating engineers and hire plumbers.
It is the latter which brings this case within Section 8 (b) (4)
( D), but the former clearly brings it within Section 8 (b) (4) (A).
Viewed realistically , this was primarily a secondary strike in
violation of 8 (b ) ( 4) (A) and, in my opinion , could have been
remedied more quickly and effectively under that subsection.
I say this because, in actual practice , Section 8 (b) (4) (A)
provides a quicker and more effective relief from this form of
unlawful conduct. Under that section , provision is made for a
mandatory injunction and the immediate issuance of a com-
plaint , which immediately sets in motion machinery for the
ultimate and final resolution of the dispute . In the meantime,
unlawful conduct is enjoined , and thus the rights of injured
parties receive immediate protection as a matter of law. If the
law has been violated, as determined in our unfair labor
practice proceeding , there is eventually enforced by the court
an order prohibiting the unfair practice under pain of being in
contempt of the court ' s decree.
The 10 ( k) procedure is by no means as certain or as con-
clusive in its result. In the first place, immediate relief in the
form of an injunction is not mandatory but involves an element
of discretion since the statute prescribes that it be used by the
General Counsel where he deems it appropriate to do so. Also,
as Member Murdock points out, the Board ' s resolution of the
dispute has no binding effect even when it is eventually made,
which, in this case, will be more than a year after the charge
was filed. Following issuance of this decision, if the parties
do not accept our decision , the General Counsel will then issue
a complaint and then finally set in motion an unfair labor
practice proceeding which could have been instituted under
Section 8 ( b) (4) (A) a year ago. I am, of course , not aware why
this case took one route rather than the other , and I recognize
that it is the exclusive function of the General Counsel to
determine what violations are to be alleged in the complaints
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which he issues . However, the General Counsel, in the
administration of his difficult task of implementing Board
policy, is entitled to a plain and unequivocal statement
from the Board , as, indeed , are the parties who appear
before us . It is for this reason that I address myself to what
I consider to be a mistaken choice of remedies in this case.
It seems to me, therefore , that the Section 10 (k) procedure
should , wherever possible , be reserved for use in cases of
jurisdictional disputes which do not also involve violation of
other subsections of Section 8 (b).
Member Murdock , dissenting:
As found by the majority , the Carpenters , at the instigation
of the Plumbers , struck Dailey , a subcontractor of Brown &
Sons, the general contractor , to force Brown & Sons to replace
subcontractor Northwest , whose employees are represented
by the Operating Engineers , with any other subcontractor
who would hire employees represented by the Plumbers, with
the object of requiring Northwest to hire employees represented
by the Plumbers . A contract exists between Northwest and the
Operating Engineers, which had been certified by the Board on
October 16, 1951, as the bargaining representative of North-
west's employees.
Even assuming , as found by the majority , that the evidence
conclusively proves the necessary causal connection, pro-
scribed objective , and the existence of a "jurisdictional
dispute," I would hold , in accord with my dissenting opinion
in Juneau Spruce Corporation , 82 NLRB 650, 660, thatitis both
futile and unnecessary for the Board to make any "determina-
tion" in this proceeding.
By Section 10 (k), as the legislative history shows , Congress
intended to give the Board the authority to arbitrate jurisdic-
tional disputes , that is, to determine which of two or more trade
or craft groups of workers or their respective unions ought to
be assigned certain disputed work when the employer is neutral
and indifferent to which of the organizations performs the work.
In this case it is not merely unnecessary for the Board to decide
what group of employees should do the disputed work but, in fact,
that issue has already been decided . The decision , already made,
that the operating engineers shall do the job rests not only upon
Northwest ' s assignment of the work but, indeed, upon the
ultimate fact that by virture of Board certification Northwest is
under a statutory obligation to deal with the Operating Engineers
and not with the Plumbers.
I have serious doubts that Congress intended for the Board
to conduct any proceeding so futile and inoperative as the
"Decision and Determination of Dispute " issued here indicates.
As true as it was in Juneau Spruce, but even more obvious here,
the "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
LOCAL 562, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 553
that there is probable merit" in Northwest's charge that the
Plumbers and Carpenters have violated the Act. As I stated in
Moore Drydock Company, 81 NLRB 1108 at 1121, "It does not
operate either as an order abating unfair labor practices, or as
a certification of representatives defining future legal relation-
ships of the parties. Neither is it a disposition of any collateral
issue not directly involved in the 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
parties to the dispute with the decision of the Board . . . such
charge [that is, the 8 (b) (4) (D) charge] shall be dismissed.' "
In this case, however, the Board's "decision" onlyimplies that
Carpenters and Plumbers may have done something wrong. It
does not specify what the "parties to the dispute"- -whoever they
may be--should do, by way of "compliance," that will result in
automatic dismissal of the charge. I find it difficult to believe
that Congress actually intended the Board to waste its time and
resources and those of the parties in such useless procedure.
It is highly gratifying to me that the Chairman shares my
view that this "determination" is futile. I cannot,- however,
agree with him that the wording of Section 10 (k) clearly
deprives the Board of discretion in the application of the pro-
cedures provided bySection 10 (k). Idoubtthat Congress, under
Section 10 (k), intended for the Board to engage in a proceeding
as futile as this one despite the phrase in Section 10 (k) stating
that the Board is "empowered and directed to hear and de-
termine the dispute out of which such unfair labor practice shall
have arisen." (Emphasis added.) As I stated in Moore Drydock,
"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 legisla-
ture. Ozawa v. United States, 260 U. S. 194; United States v.
American Trucking Association, 310 U. S. 534." In fact, the
majority recognizes this axiom of statutory interpretation
when it states, "Before we may proceed with a determination
of a dispute pursuant to Section 10 (k) of the Act, we must be
satisfied that reasonable cause exists to believe that Section 8
(b) (4) (D) of the Act has been violated." In effect, the majority
is thus predicating this proceeding upon a finding that the
charge has prima facie merit. This is done--and properly so
within the principles laid down by the Court of Appeals for the
District of Columbia in Herzog v. Parsons, 181F. 2d 781--des-
pite the "mandatory" language of the clause immediately pre-
ceding the portion of Section 10 (k) quoted above: "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.)
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As I have indicated above, the legislative history demon-
strates that Congress intended by Section 10 (k) to give the
Board the function of arbitrating jurisdictional disputes. As
I stated in my opinion in Juneau Spruce, although the Act con-
tains no standard to guide the Board in making such deter-
mination, the Congress must have known that custom in the
trade and in the area, the constitutions and agreements of the
contending labor organizations themselves, the technological
evolution of the disputed task, and like criteria are those
customarily employed by trade unions and interunion arbi-
trators in adjusting jurisdictional differences. In this case there
not only appears to have been a jurisdictional award by the
parent organization, but a Board certification also is involved.
If I were to undertake to make a determination in this case,
I could not concur in the majority's failure to consider such
factors.
However, for the reasons appearing above, I would hold that
the Board should not make any determination at this stage of the
case, but rather that it should quashthe notice of hearing under
Section 10 (k) and leave the General Counsel free to process the
pending Section 8 (b) (4) (D) charge in his discretion.
AMERICAN STEEL BUCK CORPORATION and ARCHITEC-
TURAL & ENGINEERING GUILD, LOCAL 66, AMERICAN
FEDERATION OF TECHNICAL ENGINEERS, AFL, Peti-
tioner. Case No. 2-RC-5760. December 24, 1953
AMENDED AND SUPPLEMENTAL DECISION, ORDER, AND
CERTIFICATION OF REPRESENTATIDES
Pursuant to a Decision and Direction of Election,' issued on
July 23, 1953, an election by secret ballot was conducted on
August 20, 1953, under the direction and supervision of the
Regional Director for the Second Region, among the employees
of the Employer in the unit found appropriate in the Decision.
At the conclusion of the election, the parties were furnished
a tally of ballots, which showed that of approximately 7 eligible
voters, 5 cast valid ballots for the Petitioner, 2 cast valid
ballots against the Petitioner, and 3 ballots were challenged.
As the challenged ballots were sufficient in number to
affect the results of the election, the Regional Director, pur-
suant to Section 102.61 of the Board's Rule.s and Regulations,
conducted an investigation of the challenged ballots. On
September 11, 1953, the Regional Director issued and duly
served upon the parties his report on challenged ballots,
recommending that the Board sustain the challenges to the
ballots of Norman Ross, Herman Starobin, and A. David Ross.
Thereafter, on September 16, 1953, the Employer filed ex-
I Not reported in printed volumes of Board Decisions.
107 NLRB No. 121.