Wood, Wire and Metal Lathers International Union

National Labor Relations Board - Board Decisions

Jan 17, 1958

119 N.L.R.B. 1345 (N.L.R.B. 1958)

WOOD; WIRE AND METAL LATHERS INTERNATIONAL UNION 1345
Wood , Wire and Metal Lathers International Union and Its
Local Union • No. 2, AFL-CIO , and Earl Ferguson, Interna-
tional vice president and business agent of Local Union No. 2
and Acoustical Contractors Association of Cleveland. Case
No. 8-CD-8. January 17,1958
DECISION AND ORDER ON REVIEW OF
TRIAL EXAMINER'S ORDER DISMISSING COMPLAINT
On November 26 and 27, 1956, Trial Examiner Arthur Leff con-
ducted a preliminary hearing in the above-entitled proceeding. On
January 14, 1957, Trial Examiner Leff issued his Opinion and Order,
a copy of which is attached hereto, finding therein that the parties had,
`within the meaning of Section 10 (k) of the Act, agreed upon a method
for the voluntary adjustment of the dispute involved; and ordering,
upon the Respondent's motions and pursuant to Section 102.72 of the
Board's Rules and Regulations and Section 101.28 of its Statements
of Procedure, Series 6, as amended, the dismissal of the complaint
'herein. Thereafter, the General Counsel requested the Board to review
and reverse the Trial Examiner's Order, and filed a brief in support of
its request; l the Respondents also requested review of the Trial'Ex-
aminer's Order, and filed a Statement of Reasons and a brief in sup-
port of "their requests, together with briefs in opposition to the General
Counsel's request for review. Building Trades Employers Association
.of Long Island, Inc., and Acoustical Contractors' Association of New
York, Inc., each, as amicus curiae, submitted a brief to' the Board. At
the Board's invitation, the National Joint Board for the Settlement of
Jurisdictional Disputes, as amicus curiae, submitted to the Board a
statement, to which the Respondents submitted reply briefs.
On September 17, 1957, the Board heard oral argument in the case.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Opinion and Order, all the briefs and statements submitted to
the Board, the oral argument before the Board, and the entire record
in the case. The Board hereby adopts the findings and conclusions of
the Trial Examiner to the extent that they are consistent with the
findings and conclusions hereinafter set forth.
1. The Trial Examiner found, contrary to the Respondents' conten-
tion, that Respondents Lathers International and Local were bound
by the agreement. which established the National Joint Board for
i On January 17, 1957, the General Counsel moved that the Board , before ruling on the
.General Counsel 's request for review , remand the case to the Trial Examiner for further
hearing and determination of issues . The Respondents opposed this motion. The General
Counsel's motion is hereby denied.
.1 119 NLRB No.166.
476321-58-vol. 119-86
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Settlement of Jurisdictional Disputes in the Building and Construc-
tion Industry, and which provides for the submission of jurisdictional
disputes to the said National Joint Board for decision.
As set forth in detail in the Trial Examiner's Opinion and Order,
Respondent Lathers International is a member and affiliate of Build-
ing and Construction Trades Department, AFL-CIO. The Depart-
ment is a signatory to the Plan for Settling Jurisdictional Disputes,
which is the agreement that establishes the National Joint Board
and defines the Joint Board's duties, and which obligates the signa-
tories thereto to accept and comply with the Joint Board's decisions in
jurisdictional disputes referred to it. The Department's constitution
provides that the Plan "shall be recognized and binding on all affili-
ates." 2 This constitutional provision was reaffirmed at the Depart-
ment's last convention in November 1955, which was after Respondent
Lathers International had served various formal notices signifying
its intent to withdraw from further participation under the Plan.'
Notwithstanding its own efforts to withdraw from participation under
the Plan, and notwithstanding the existence and reaffirmance of the
Department's constitutional provision, Respondent Lathers Interna-
tional has up to the present time remained' a member and affiliate of
the Department.
All members of the Board participating in this case agree with the
Trial Examiner's finding that Respondents Lathers International
and Local, were bound by the Plan for Settling Jurisdictional Dis-
putes. As the Trial Examiner pointed out, the constitution and by-
laws of an unincorporated association constitute a binding contract
among its members, defining-not only the privileges received but the
obligations imposed upon the members 4 So far as this proceeding is
concerned, Respondent Lathers International was free to choose, on
,the one hand, between remaining a member of the Building Trades
Department and thus accepting the Department's constitutional pro-
vision that makes the Plan binding upon the Department's affiliates,
or, on the other hand, resigning from the Department and thus ef-
fectively freeing itself from the constitutional restriction. Respond-
ent Lathers International has chosen to remain a Department affili-
3 This provision was incorporated into the Department 's constitution in 1948. Report
of Proceedings of the Forty-eighth Annual Convention of the Building and Construction
Trades Department, AFL (1955), pp. 16, 191-192.
S On December 4, 1955, Respondent Lathers International appealed to the Executive
Council of the AFL-CIO, requesting a reversal of the Department 's 1955 convention
action. In November 1956, the Executive Council denied the appeal. This decision was,
in turn, appealed to the AFL-CIO Convention . On December 12, 1957 , the Convention
sustained the Executive Council, and denied the appeal. Proceedings , Second Constitu-
tional Convention of the AFL-CIO, Dec. 12, 1957, pp. 1-2.
4 For support of this proposition , see, in addition to the cases cited in the Trial
Examiner 's Opinion and Order , the following cases : Robinson v. Dahm, 94 Misc. 729,
159 N. Y . Supp. 1053 ( N. Y. Sup. Ct. 1916 ) ; Kelley v. Weiss, 328 Mass. 193, 102 N. E.
2d 92 ( 1951 ) ; Kelsey v. Early Grain & Elevator Co., 206 S. W. 849 (Tex. Civ. App . 1918).
WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 1347
ate and member. The participating Board members have therefore
concluded that the Trial Examiner was correct in ruling that Re-
spondent Lathers International "continued. to subject itself and its
locals to all constitutional requirements of Department membership,
including the requirement that it recognize and be bound by the Joint
Board agreement which the Department executed on behalf of all its
affiliates." It follows, therefore, that Respondents Lathers Interna-
tional and Local were bound by the agreement which established the
National Joint Board, and that they were therefore bound by agree-
ment to accept and comply with the decisions of the National Joint
Board on jurisdictional controversies submitted to it.
No one disputes the fact that the other parties to the jurisdictional
dispute herein were similarly bound by agreement to accept and com-
ply with the decisions of the National Joint Board on such jurisdic-
tional controversies. Accordingly, in agreement with the Trial Ex-
aminer, the participating Board members hold that all parties to the
dispute herein had agreed, before the charge in this case was filed,
upon a method for the voluntary adjustment of the dispute within the
meaning of Section 10 (k) of the Act.'
2. The Trial Examiner held that Section 102.72 of the Board's
Rules and Regulations and Section 101.28 of the Board's State-
ments of Procedure Series 6, as amended, are applicable to a situation
where, as here, a Section 10 (k) proceeding is not initiated because
an agreed-upon method of voluntary adjustment is found by the Re-
gional Director to exist, and instead resort is made directly to the
complaint procedures provided in Section 10 (b) of the Act and a
complaint is issued alleging a violation of Section 8 (b) (4) (D) of
the Act .6 The General Counsel has argued before the Board that the
e A. W. Lee, Inc., 113 NLRB 947 ; Local Union No . 1, Sheet Metal Workers International
Association, etc. (Meyer Furnace Company), 114 NLRB 924 ; Manhattan Construction
Company, 96 NLRB 1045.
G The Board 's Rules and Regulations, Series 6, as amended , provide :
Subpart E-Procedure To Hear and Determine Disputes Under Section 10 (k)
of the Act
SEC. 102.71 Initiation of proceedings; notice of filing charge ; notice of hear.
ing.-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 regional director
shall investigate such charge , giving it priority over all other cases in the office
except cases under paragraph (4) (A), (4) (B ), and (4) (C) of section 8 (b) and
other cases under paragraph (4) (D) of section 8 (b). If it appears to the regional
director that further proceedings should be instituted, he shall cause to be served on
all parties to the dispute out of which such unfair labor practice may have arisen a
notice of the filing of said charge together with a notice of hearing before a hearing
officer at a time and place fixed therein which shall be not less than 10 days after
service of the notice of hearing. The notice of hearing shall contain a simple state-
ment of the issues involved in such dispute.
SEc. 102.72 Adjustment of dispute ; withdrawal of notice of hearing ; hearing.-If,
within 10 days after service of the notice of hearing , the parties submit to the regional
director satisfactory evidence that they have adjusted or agreed upon methods of
voluntary adjustment of the dispute, the regional director shall withdraw the notice
of hearing and shall dismiss the charge. Hearings shall be conducted by a bearing
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner misconstrued these sections of the Rules and Regula-
tions and Statements of Procedure. He contents specifically, as he
contended before the Trial Examiner, that Sections 102.72 and 101.28
apply only to a situation where a Regional Director determines ini-
tially to institute a proceeding under Section 10 (k) of the Act.
For the reasons stated fully in the Trial Examiner's Opinion and
Order, the participating Board members agree with the Trial Exam-
iner's construction of Sections 102.72 and 101.28, and find that these
sections, as presently written, apply to a situation where a complaint
alleging an 8 (b) (4) (D) violation is issued without prior resort
to a Section 10 (k) proceeding.
3.' The Trial Examiner found that Section 102.72 of the Board's
Rules and Regulations and Section 101.28 of the Board's Statements
of Procedure were, as the published rules of this agency, controlling
in the instant case. Accordingly, because these sections require the
dismissal of a charge where there exists an agreed-upon method of
agreement, the Trial Examiner ordered the dismissal of the complaint
herein. It is the General Counsel's contention, however, that if Sec-
tions 102.72 and 101.28 are construed to apply-as the Board unani-
mously construes them to-apply-to a situation where resort is made
directly to a complaint proceeding, they are inconsistent with the
statutory scheme and intent, and are therefore not controlling in the
instant case. V
As indicated below, the participating Board members agree with
the General Counsel that the Act permits the initiation of an 8 (b)
(4) (D)' complaint proceeding without prior action under Section
10 (k). Under this view, therefore, Sections 102.72 and 101.28, as
they now stand, and as.they, are construed in this Decision, are in fact
inconsistent with the statutory scheme and intent. But it does not
necessarily follow from this that Sections 102.72 and 101.28 should
not be applied in this proceeding. Indeed, Chairman Leedom and
Board Members Rodgers. and Bean hold that these sections, as pres-
officer and the procedure shall conform , insofar as applicable , to the procedure set
forth in sections 102.56 to 102 .59, inclusive.
The Board 's Statements of Procedure provide :
Subpart E-Jurisdictional Dispute Cases Under Section 10 (k) of the Act
SEC. 101 . 28 Initiation of formal action; settlement.-If, after investigation,
it appears to the regional director that further proceedings should be instituted, he
issues a notice of filing of the charge together with a notice of hearing which includes
a simple statement of issues involved in the jurisdictional dispute and which is served
on all parties to the dispute out of which the unfair labor practice is alleged to have
arisen . The hearing is scheduled for not less than 10 days after service of the notice
of hearing . If, within 10 days after service of the notice of hearing , the parties
present to the regional director satisfactory evidence that they have adjusted or
agreed upon methods of voluntary adjustment of the dispute , the regional director
withdraws the notice of hearing and either permits the withdrawal of the charge or
dismisses the charge . The parties may agree on an arbitrator , a proceeding under
section 9 (c) of the Act, or any other satisfactory method to resolve the dispute.
WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 1349
ently written and published, require the dismissal of the complaint
against the Respondents.
Sections 102.72 and 101.28 were issued by the Board in 1947, and,
after due publication in the Federal Register, became effective on
August 22, 1947.' They have not since been amended in any way.
Thus, for some 10 years these sections have been held forth to the
public as this agency's unchanged administrative interpretation of
Sections 10 (k) and 8 (b) (4) (D) of the Act. Moreover, until the
complaint in this case issued there has been no action during that
entire period of time, either by the Board or by the General Counsel,
which in any way impugned the validity of the published administra-
tive interpretation. That the Board has now decided, upon reexami-
nation, that the published interpretation is erroneous and should be
changed in the future, does not control the disposition of this case.
Thus, Chairman Leedom and Board Members Rodgers and Bean
agree that the adjudication of the case must depend upon that interpre-
tation of the law which, as reflected in the agency's Rules and Regula-
tions and Statements of Procedure, existed when the Respondents'
acts were committed and when the complaint against them issued, and
not upon a contrary interpretation announced thereafter.
To hold otherwise would be contrary to the spirit, if not the letter,
of the Administrative Procedure Act. (5 U. S. C. A. 1001, et seq.)
Thus, Section 3 (a) of that Act, which provides that each Federal
agency shall publish in the Federal Register its organizational, pro-
cedural, and substantive rules, states specifically that : "No person
shall in any manner be required to resort to organization or procedures
not so published." 8 In addition, it is well established under court
decisions that administrative rules and regulations have the force of
7 Section 102 . 72 of the Rules and Regulations and Section 101.28 of the Statements of
Procedure were originally issued and published , respectively , as Section 203.75 of the
Rules and Section 202 .31 of the Statements of Procedure . 16 Fed. Reg. 5651, 5656, 5666.
8 Section 3 ( a) of the Administrative Procedure Act provides :
(a) RULES.-Every agency shall separately state and currently publish in the
Federal Register (1) descriptions of its central and field organization including dele-
gations by the agency of final authority and the established places at which, and
methods whereby, the public may secure information or make submittals or requests ;
(2) statements of the general course and method by which its functions are chan-
neled and determined , including ' the nature and requirements of all formal or in-
formal procedures available as well as forms and instructions as to the scope and
contents of all papers , reports , or examinations ; and (3 ) substantive rules adopted
as authorized by law and statements of general policy or interpretations formulated
and adopted by the agency for the guidance of the public , but not rules addressed
to and served upon named persons in accordance with law. No person shall in any
manner be required to resort to organization or procedure not so published.
Section 2 ( c) of the. Administrative Procedure Act states :
RULE AND RULE MAKING.-"Rule" means the whole or any part of any agency state-
ment of general or particular applicability and future effect designed to implement,
interpret , or prescribe law or policy or to describe the organization, procedure, or
practice requirements of any agency. .. .
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
law, are binding on the agency concerned, and their nonobservance
invalidates an entire proceeding.9
But the Administrative Procedure Act and court precedent aside,
there is a further reason why the published Sections 102.72 and 101.28
should be applied in this case. This involves the elementary matter
of fairness in the administration of the Act. From this standpoint
it would be less than equitable to impose liability upon the Respond-
ents now for conduct which, when performed, was validated by an
authoritative interpretation of such rules. In this connection, it has
been argued before the Board that the nonapplication of the present
Sections 102.72 and 101.28 would not create retroactive liability; but
that, because the complaint seeks only an order requiring the
Respondents to cease violating Section 8 (b) (4) (D) of the Act,
such nonapplication would have only a prospective effect upon the
Respondents. The short answer to this argument is, of course, that
before a prospective order could issue , the Board would first have to
find that the Respondents are violating, or had violated, the Act.
Accordingly, Chairman Leedom and Board Members Rodgers
and Bean hold that Sections 102.72 and 101.28 must be applied in
this case, and that the application of these sections requires the
dismissal of the complaint.
4. In the course of its consideration of this case arguments were
pressed upon the Board that raise a fundamental question of statutory
interpretation. This is the question of whether a Board hearing and
determination under Section 10 (k) of the Act is a necessary pre-
requisite to the issuance of a complaint alleging a violation of Section
8 (b) (4) (D) ; or, to phrase the issue differently and bring it within
the specific context of this case : Whether-where there exists an
agreed-upon method of voluntary adjustment, but there also is a strike
either in repudiation of such mehod of adjustment or against a
decision issued pursuant to it-this Board may, without first hearing
and determining the underlying dispute in a Section 10 (k) proceed-
ing, find in a complaint proceeding that such strike is violative of
Section 8 (b) (4) (D) of the Act.lo
9Biiokumsky v. Todd, 263 U. S. 149, 155 (1923 ) ; Sibray v. United States, 282 F. 795
(3rd Cir., 1922) ; United States v. Dunton, 288 F. 959 (S. D. N. Y., 1923) ; Ohm v. Per-
kins, 79 F. 2d 533 (C. A. 1935) ; McKay v. Wahlenmaier, 226 F. 2d 35, 43 (C. A. D. C.,
1955 ), where an "unimportant" departure from the established rule was held no justi-
fication . See also, Accardi v. Shaughnessy, 347 U. S. 26 ( 1934 ) ; Bridges v . Wixon, 326
U. S. 135 (1945).
10 Section 10 (k) of the Act 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 empow-
ered and directed to hear and determine the dispute out of which such unfair labor
practice shall have arisen, unless within 10 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 the voluntary adjustment of the dis-
WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 1351
The Board recognizes that this question poses a matter of funda-
mental importance in the administration of the Act. The question is
also of particular significance to employers and unions in the con-
struction industry, as well as to the National Joint Board which was
created to settle jurisdictional disputes in that industry. Therefore,
although the disposition of this case has turned primarily upon narrow
issues concerning the meaning and applicability of specific sections
of the Board's Rules and Regulations and Statements of Procedures,
and hence the resolution of the question is not necessary as a decisional
matter in the case, the Board is nevertheless announcing its views on
the matter in this Decision.
All participating Board Members construe the Act to permit the
institution of an 8 (b) (4) (D) complaint proceeding without the
prerequisite of a hearing and determination under Section 10 (k) of
the Act, if it appears that there exists an agreed upon method of vol-
untary adjustment which has broken down in settling an underlying
jurisdictional dispute.
The primary reason for this construction is the statutory language
itself. Section 10 (k) of the Act provides that when a charge is filed
alleging an unfair practice proscribed by Section 8 (b) (4) (D) the
Board shall hear and determine the underlying dispute-
unless . . . the parties . . . have adjusted, or agreed upon
methods for the voluntary adjustment of, the dispute. Upon
compliance by the parties to the dispute with the decision of the
Board or upon such voluntary adjustment such charge shall be
dismissed.
Thus, the statutory language distinguishes between "adjustment" and
"agreed-upon method for the voluntary adjustment" of a jurisdic-
tional dispute. If either exists, the Board's authority to make a
determination is terminated. Significantly, however, only compliance
with this Board's decision, if one is made, or an actual "adjustment"
of the dispute-and not an "agreed-upon method"-is ground for
dismissal of the unfair labor practice charge. For this reason, the
present Section 102.72 of the Board's Rules and Regulations and the
present Section 101.28 of the Board's Statements of Procedure, which
pute. Upon compliance by the parties to the dispute with the decision of the Board
or upon such voluntary adjustment of the dispute such charge shall be dismissed.
Section,8 (b) (4) of the Act makes it an unfair labor practice for a labor organization
or its agents to engage In, or to induce and encourage 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 :
. .. (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 representative for employees performing such work : . . .
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
require the dismissal of an 8 (b) (4) (D) charge if an "agreed-upon
method" exists, are in conflict with the statute as written.
It is hardly likely, moreover, that this provision for keeping the
charge alive pending actual adjustment of the dispute was included
to authorize the Board to make a Section 10 (k) determination if one
party should become dissatisfied with the "agreed-upon method"; for
the language employed in Section 10 (k) plainly withholds power
from the Board to make such a determination where there is satisfac-
tory evidence of agreement. The more reasonable inference to be
drawn from the statutory distinction is that the statute keeps the
charge alive pending a final settlement of the dispute so that
8 (b) (4) (D) complaint action may be taken against a party' that
resorts to a jurisdictional strike despite the existence of an agreed
method of adjustment. -
This reading of the language of Section 10 (k) is supported by other
provisions in the Act. Section 8 (b) (4) (D) makes a strike to
compel the assignment of work an unfair practice in every instance
except one-where an employer has brought the strike on himself by
failing to conform to a Board order or certification determining the
bargaining representative for the employees performing the work
involved. Section 10 (1) provides that appropriate'injunctive relief
may be obtained where-there is reasonable cause to believe that acom-
plaint should issue, without regard to a Section 10 (k) proceeding or
the existence of an-agreed-upon method of adjustment.ll Thus, the
statutory scheme tends to show that a Section 10 (k) determination is
not a prerequisite to the finding of a substantive violation. Rather, it
would appear that an initial effort must be made to settle the juris-
dictional dispute underlying the charged unfair labor practice, either
by an agreed-upon method of adjustment, or by a determination under
Section 10 (k). Where neither serves in fact to settle the underlying
dispute, the remedy of a cease and desist order is required to stop the
unfair labor practice.
This construction of the statutory language, moreover, is consistent
with and carries out the congressional purpose underlying Sections
10 (k) and 8 (b) (4) (D). As the Trial Examiner pointed out,, the
legislative history of the Act shows that in enacting these sections,
Congress had three broad objectives in view. These were : (1) to
encourage the settlement of jurisdictional differences without Gov-
ernment intervention; (2) to empower this Board to determine dis-
putes not resolved by private arbitration, and thus avoid complaint
"Thus Section 10 (1), after setting forth the requisites for obtaining injunctive
relief when a Section 8 (b) (4) (A), (B), or (C) violation is charged, states simply:
. . . In situations when such relief is appropriate the procedure specified herein shall
apply to charges with respect to section 8 (b) (4) (D).
WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 1353
proceedings; and (3) to outlaw jurisdictional strikes in the interest
of neutral employers and the public."
To construe the Act so that a party dissatisfied with the agreed
method can have an alternative tribunal-this Board-either redeter-
mine. an adverse decision or pass upon the matter in advance of an
expected adverse decision, is to frustrate the congressional purpose of
placing initial reliance upon voluntary agreements to settle jurisdic-
tional strife. For as the Board pointed out in the Lee case, this
construction
would condone and sanction . . . breach of the agreement, and
would tend to discourage and render worthless the making of
such agreements, contrary to the statutory purpose to encourage
the voluntary adjustment of jurisdictional disputes. . . . any
party adversely affected by determination made pursuant to the
agreement could breach the agreement with impunity, and then
have recourse to this Board for redetermination of the dispute
in the hope that the redetermination might be favorable.13
Likewise, a construction that the existence of an "agreed upon
method" ousts this Board of all jurisdiction to stop unfair labor prac-
tices within the meaning of Section 8 (b) (4) (D) frustrates the con-
gressional purpose of protecting neutral employers and the public
from jurisdictional strife, for it subjects them to continuing juris-
dictional strikes when the agreed method does not result in a decision
favorable to the striking union. On the other hand, the congressional
purpose is clearly enhanced by a construction of the Act which does
not countenance "forum shopping" in the face of a private "agreed
upon method of adjustment," which keeps an 8 (b) (4) (D) charge
:alive pending actual settlement of a jurisdictional dispute, and which,
where the private adjustment machinery has broken down, provides
a Board cease and desist order to stop a jurisdictional strike.
This construction of the Act does not, of course, deprive a respond-
ent named in an 8 (b) (4) (D) charge of the opportunity to litigate
the issue of whether an agreed-upon method exists. It is true that
procedurally the Board's Regional Director will initially determine
administratively whether or not there is such a method in existence.
If a respondent questions an adverse administrative finding, ample
opportunity will thereafter be afforded him to present evidence on the
matter either during the hearing in the complaint proceeding on the
alleged unfair labor practice, or-as in the instant case-during a
12 See S. Rept. 105, 80th Cong., 1st sess . 27 (1947) ; 2 Leg. Hist. 1496, 950, 1046, 1057,
1555 (1947) ; Rept. 986, Joint Committee on Labor Management Relations, 80th Cong.
2d sess ., Part 1 at pp. 18-19, Part 3 at p. 58 (1948).
13 A. W. Lee, Inc., 113 NLRB 947, 953. For similar statements, see Roy Stone Transfer
Corporation, 99 NLRB 662, 666, and Wrrn. F. Traylor, 97 NLRB 1003, 1006.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
separate preliminary hearing on the issue. In either event, a Trial
Examiner, and, ultimately this Board, will pass upon the issue, and
thereby due process will be preserved."
It is argued that Board precedent and past Board practice does
not support such a construction of the Act. Applied to the question
at hand, the force of this argument is slight. Admittedly, the con-
struction now set forth is inconsistent with that underlying Section
102.72 of the Board's Rules and Regulations and Section 101.28 of
the Board's Statements of Procedure. But an erroneous initial con-
struction of the Act, as represented by the Rules and Regulations and
Statements of Procedure, does not foreclose the Board from subse-
quently clarifying its interpretation and correcting the initial error.
Especially is this so, where, as with Sections 102.72 and 101.28, the
initial construction seems to have had little impact on the subsequent
administration of the Act. Thus a consideration of Board cases shows
no express instance, until this case, in which the construction embodied
in Sections 102.72 and 101.28 was adverted to, either specifically or
indirectly.
Nor is it correct to say, as the Trial Examiner did, that the decided
cases "point away" from the "new" construction. It is true, indeed,
that the Board held in the Juneau Spruce Corporation case, 82 NLRB
650 (1949), that a 10 (k) proceeding was a statutory prerequisite to
the issuance of an 8 (b) (4) (D) complaint; and it is also true that
in the later Westinghouse case, 88 NLRB 1101 (1950), the Board cast
on the General Counsel the burden of proving noncompliance with a
10 (k) determination as a condition precedent to an 8 (b) (4) (D)
finding. But, as the Trial Examiner himself recognized, the Board
in these cases was dealing with a situation in which an agreed-upon
method of voluntary adjustment did not exist; and the principles
there announced only carried out the congressional purpose of pro-
viding a forum-in that situation, this Board-for hearing and deter-
mining the underlying jurisdictional dispute before resort was had
to a complaint proceeding. By contrast, where there is an agreed-upon
method of private adjustment, the parties themselves have supplied
the forum for hearing and determining the dispute. The precedent
value of the Juneau Spruce and Westinghouse cases is therefore
unconvincing.
It is not of particular significance, moreover, that in the past no
8 (b) (4) (D) complaints were issued in those cases where the Board
The initial finding that an agreed-upon method exists may, of course, be made by
the Board after a Section 10 (k) hearing. In that case the Board will quash the notice
of hearing . See A. W. Lee, Inc., 113 NLRB 947; Local No. 1, Sheet Metal Workers
International Association, etc. (Meyer Furnace Company), 114 NLRB 924; Manhattan
Construction Company, Inc., 96 NLRB 1045. The charge, however, is kept alive, paving
the way for subsequent 8 (b) (4) (D) complaint proceedings if the agreed method has
not brought about a settlement of the underlying jurisdictional dispute.
WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 1355
declined to determine disputes in 10 (k) proceedings because of the
existence of agreed-upon voluntary adjustment procedures, even
where it also appeared that the disputes were not finally adjusted.ls
That no complaints actually issued in those cases does tend to support
an inference, which the Trial Examiner drew, that the charges in
those cases were subsequently dismissed. Indeed, in one such case,
it appears that the charge may have been so dismissed.16 The weight
of this inference, however, is lessened markedly by another factor.
For in each of the cases in question, where the Board held that the
existence of an agreed-upon method precluded the Board from deter-
mining the dispute, the Board merely quashed the Section 10 (k)
notice of hearing, and did not order the charge dismissed. Thus, it
would appear that had the Board intended that no complaint action
could thereafter be initiated, the Board itself would have dismissed
the underlying 8 (b) (4) (D) charges and would not have confined
its action to a mere quashing of the notice of hearing. Any conclusion
that is sought to be drawn from the past practice in this respect is
therefore, like the argument based on the Juneau Sp7 tcce and Westing-
house cases, of questionable validity.
5. As is evident from what has been said above, the Board's Rules
and Regulations and Statements of Procedure, Series 6, as amended,
as previously published in the Federal Register, embody a construc-
tion of the Act which is inconsistent with that announced in this
Decision. To accommodate the latter construction and to harmonize
future Board practice and procedure with it, the Board will revise the
pertinent provisions of its Rules and Regulations and Statements of
Procedure. These changes will be issued shortly and will be pub-
lished in the Federal Register.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby affirms the Trial Examiner's ruling dismissing
the complaint herein, and further orders that the complaint against
the Respondents herein be, and it hereby is, dismissed.
MEMBER JENKINS, dissenting in part :
The majority deems itself bound to apply in this case rules which
it finds to be "inconsistent with the statutory scheme and intent," pri-
marily because it asserts that "[t] o hold otherwise would be contrary
to the spirit, if not the letter, of the Administrative Procedure Act"
and the denial of "the elementary matter of fairness in the administra-
16 In addition to the cases cited in footnote 13, see William F. Traylor, 97 NLRB 1003,
and Roy Stone Transfer Corporation, 99 NLRB 662.
1e See Manhattan Construction Company, Inc. V, N. L. R. B., 198 F. 2d 320 (C. A. 10,
1952).
1356. DECISIONS OF NATIONAL LABOR RELATIONS'. BOARD
tion of the [Taft-Hartley] Act." I find no warrant in either Act for
this action. Even taking due account of the "rule of prejudicial
error" which exonerates minor mistakes by administrative agencies,
I believe that the Board's action herein is "an abuse of discretion, or
otherwise not in accordance with law." As such, it is banned by the
Administrative Procedure Act.17
The rule by which the majority deems itself bound states that the
Regional Director shall dismiss a charge alleging a violation of Sec-
tion 8 (b) (4) (D) upon timely submission by the parties of satisfac-
tory evidence that they have "agreed upon methods for the voluntary
adjustment of the dispute." Section 10 (k), however, expressly pro-
vides that "the charge shall be dismissed" upon "such voluntary
adjustment of the dispute" or compliance with the Board's 10 (k) de-
termination. The discrepancy between the rule and the statute re-
lates to the circumstances under which a charge shall be dismissed.
The congressional mandate is clear. As the rule cannot be said "to
carry out the provisions of the Act," I question that the Board had au-
thority to make it.18 Moreover, the Board "must conform to the
[procedural] standards established in the Act." 19 It cannot find au-
thority to do otherwise from mistaken action on its own part in the
past.20
Section 3 (a) (2) of the Administrative Procedure Act requires
every agency covered by its provisions to publish certain statements
14 Sec. 10 ( e) of the Administrative Procedure Act authorizes a reviewing court to "(A)
compel agency action unlawfully withheld . . . and (B ) hold unlawful and set aside
agency action . . . found to be (1) arbitrary, capricious , an abuse of discretion , or other-
wise not in accordance with law ; . . . (4) without observance of procedure required by
law ; . . When the statute specifies a stated procedure , any departure therefrom is
invalid under Sec. 10 ( e) (1) and ( 4). See Channel 16 of Rhode Island, Inc. v. F. C. C.,
229 F . 2d 520 , 524 (C. A., D. C.; 1956 ) ( failure to require the hearing examiner to issue
an initial decision as required by the Act).
is Sec. 6 gives the Board authority "to make, amend , and rescind , in the manner pre-
scribed by the Administrative Procedure Act, such rules and regulations as may be nec-
essary to carry out the provisions of this Act." [Emphasis supplied .] The judicial test
for the validity of published procedural rules is whether they are "necessary to carry out
the provisions of the Act ." N. L. R. B . v. John S . Barnes Corporation, 178 F. 2d 156,
159 (C. A. 7 ; 1949).
ION. L. R . B. v. Piqua Munising Wood Products Co., 109 F . 2d 552, 557 ( C. A. 6;
1940 ). On the other hand , when the Act provides no procedures on matters necessary to
carry out its provisions , Congress "obviously left those matters to be regulated by the
Board by rules and regulations ." N. L. R. B. v. Carlisle Lumber Co., 99 F. 2d 533, 539
(C. A. 9 ; 1938 ) ( procedure for determining names of employees and amounts of back
pay due).
20 See N. L. R. B. v. The Baltimore Transit Company , at al ., 140 F . 2d 51 , 55 (C. A. 4;
1944 ). For this reason , I find no merit in the arguments of the majority based on the
fact that Sections 102.72 and 101 .28 have ( 1) not been amended since their initial pub-
lication in 1947 and (2 ) not been questioned , directly or indirectly , in any earlier pro-
ceeding. The related contention that the rules have been held forth as the agency's "un-
changed administrative interpretations" of Section 10 (k) and 8 ( b) (4) (D) is based
on an erroneous label . Clearly the rule is "a direction as to what should be done and is
not an interpretation by the Board " of the requirements of Section 10 (k) or of a viola-
tion of Section 8 (b) (4) (D ). See N. L. R. B. v. Dant & Russell , Ltd., 344 U. S. 375,
381 (1953 ). Whatever the label , the authority for the asserted "interpretation" is no
greater than for a "direction ." The question is the power given the agency by Congress.
See Shascmut Assn. v. S. E. C., 146' F. 2d 791, 795 (C. A. 1).
WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 1357
of its rules, organization, and procedure, "including the nature and
requirements of all formal or informal procedures available," and
adds that, "No person shall in any manner be required to resort to
organization or procedure not so published." The legislative history
of that provision establishes that the purpose of the requirement was
to protect the public from being required to pursue unpublished
remedies 21 and that the intended sanction was that agencies not have
the benefit of the accepted rule respecting the exhaustion of ad-
ministrative remedies.22 The Attorney General's Manual elaborates
these views 23 Until the present majority decision, the Board has
consistently stated : 24
The purpose of Section 3 (a) (2) is to protect a party to any
proceeding from being prejudiced by reason of his failure to
resort to unpublished agency procedure. [Emphasis supplied.]
And the Board, with the approval of the courts, has consistently held
that a party is not "required to resort" to unpublished agency pro-
cedure, within the contemplation of Section 3 (a) of the Administra-
tive Procedure Act, in those matters which involve or require action
by the Board or its agents and not a party 25 This follows from the
fact that such procedures are not required or imposed by the Board
as one of the necessary steps to be undertaken by a party in the course
of a Board proceeding, and which, if not pursued, will adversely affect
the party's, position. It is therefore immaterial whether the Board
proceeded in the absence of a published rule covering the matter 26
or contrary to the rule as published.27 I think the majority' s reliance
on the Administrative Procedure Act foreclosed by the Supreme
Court's decision in Dant & Russell28 In that case, the Board ad-
21 S. Doc. 248, 79th Cong ., 2d sess., p. 198 (Senate committee report ) and p. 256
( House committee report).
22 IS. at 356 . On the floor of the House, the bill's sponsor, Congressman Walter
explained :
This means among other things that the accepted rule respecting the exhaustion
of administrative 'remedies would not apply where the agency has not published the
required information respecting organization or procedures.
23 The Attorney General's Manual on the Administrative Procedure Act (1947) 20,
21-22.
Should an agency fail to publish , for example , a listing of its field offices with their
functions , persons who have not received actual notice of such agency organization
may contend that they are not bound to resort to a field office prior to institution of
their case in the central office.
24 E. g: Foreman & Clark , Inc., 98 NLRB 530, 531 ( 1952).
24 E. g . Lander Shoe Corp , d/b/a Bruce Shoe Co ., 103 NLRB 1322 , 1323 ( 1953 ), enfd.
211 F. 2d 284 , 289 (C . A. 1 ; 1954) ; N. L. R. B. v. Edwin D. Wemyss d /b/a Coca-Cola
Bottling Company of Stockton , 212 F. 2d 465 , 468-469 ( C. A. 9; 1954 ) ; N. L. R. B, v,
Star Beef Company, 193 F. 2d 8, 16 (C. A. 1; 1951).; N. L. R. B. v. Monsanto Chemical
Company, 205 F. 2d 763, 765 (C. A. 8; 1953).
26 E. g ., Foreman & Clark, Inc. v. N . L. R. B ., supra.
'' E. g., N . L. R. B. v . Monsanto Chemical Company, supra.
23 N. L. R. B. v. Dant & Russell, 344 U. S. 375 ( 1953).
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mitted that it followed a practice of extending the period of grace
given to charging parties to achieve compliance status beyond the
10-day period stated in the published rules, upon a proper showing
that the union was making a diligent effort to comply. The Respond-
ent asserted that this practice contravened Section 3 (a). The Supreme
Court summarily dismissed the contention : 29
The Board's practice of extending the 10-day period on a proper
showing by a labor organization can hardly be called a procedure
to which respondent was required to resort.
As the Court of Appeals for the Ninth Circuit said in Foreman
Clark : 30
The clear purpose of Section 3 (a), supra, is to provide a shield
for a petitioner before the Board, or other agency, to protect,
him from being penalized for failing to resort to unpublished
methods of procedure. It is not a sword by which a petitioner-
can strike down the agency's order, on the ground that the agency
has not authorized itself to issue that type of order by publishing
a statement in the Federal Register ?
The majority, confusing "substantive" with "procedural" rules,sr
further assert that "[it] would be less than equitable to impose liability
upon Respondents now for conduct which, when performed, was
validated by an authoritative interpretation of such rules." 32 As.
noted above, the rule involved relates only to the period during which
a duly filed charge shall be maintained rather than dismissed. The
dismissal of a charge divests the Board of authority, under Section,
10 (b), to proceed further with the matter. I do not see how action
which is invalid under the Act is "validated" merely because the
Board, for one reason or another, chooses not to assert jurisdiction 33:
There can be no defense based on the ground that the Board should not.
20 Id. 381 at footnote 9. This decision is the Supreme Court's most recent statement on
Section 3 ( a) (2) of the Administrative Procedure Act, 5 U. S. C. See . 1002 (a) (2).
30 Foreman & Clark, Inc. v . N. L. R. B ., 215 F. 2d 390 ,. 410 (C. A. 9 ; 1954 ), cert. denied
348 U. S. 887.
31 All the cases cited in the majority decision at footnote 9 involve "substantive"'
rather than "procedural" rules ; none of them involve a judicial interpretation of the im-
pact of Sec . 3 (a) (2) of the Administrative Procedure Act upon the validity of the
agency action or inaction in question . It is well established under court decisions that
substantive rules and regulations have the force of law and are binding on the agency
concerned until modified by appropriate procedures.
3' This argument is valid only for those situations in which a party has relied upon
the Board 's rulings as a guide for the very conduct which the Board thereafter questions:
as valid . In such a situation , I agree that " the unfairness and hardship to the indi-
vidual penalized justify a requirement that the Board point to clear statutory authority
for its action." Eugen Pedersen v. N. L. R . B. (Modern Linen & Laundry Service, Inc.),.,
234 F . 2d 417 , 419 (C. A. 2 ; 1956 ). And warrant a court in limiting the enforcement
of a Board order to some refusal to heed the Board's changed position . N. L. R. B. v.
International Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers o f America,
et al . ( Pacific Intermountain Express Co .), 225 F. 2d 343 , 348 (C. A. 8 ; 1955).
33 N. L. R. B. v. Gottfried Baking Co ., Inc., 210 F. 2d 772, 781 ( C. A. 2; 1954).
WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 1359
"determine whether a proceeding, when once instituted, may be
abandoned." 34
The same confusion concerning the type of rule involved leads the
majority to hesitate in "subsequently clarifying its interpretation and
correcting the initial error." Such hesitancy finds no warrant in the
Administrative Procedure Act,35 the Board's own published Rules and
Regulations,36 or the Act which we administer in the public interest.
I can make no better summary of my position herein than contained
in the Court decision in the Monsanto Chemical Company case 37 The
court said :
The bald argument on behalf of respondents is that the Board is
powerless in the public interest to relax the time provisions of
its procedural rules in any case before it. This contention is not
worthy of serious consideration.
It is always within the discretion of a court or an administra-
tive agency to relax or modify its procedural rules adopted for the
orderly transaction of business before it when in a given case the
ends of justice require it. The action of either in such a case is
not reviewable except upon a showing of substantial prejudice
to the complaining party. [Citations omitted.] The rule stated
applies with special force in cases before the National Labor
Relations Board. The Board acts in the public interest and not in
vindication of private rights. [Citations omitted.] Its discretion
is not to be controlled at the whim of a private party to the neglect
of the public interest.
We find nothing in the Administrative Procedure Act to pro-
hibit the action of the General Counsel of the Board. A casual
reading of the sections of the Act relied on by respondents [Sec.
3 (a) and 4 (c) of the Administrative Procedure Act] is enough
34 See Sec . 10 (a). N. L. R. B. v . Federal Engineering Company, Inc., 153 F . 2d 233,
234 (C . A. 6; 1946 ), citing National Licorice Company v. N . L. R. B., 309 U. S. 350, 362
(1940).
35 Sec . 4 (a) and ( c) do not apply to rules of agency organization , procedure , or prac-
tice, in the absence of a statutory provision requiring notice or hearing thereon. The
Attorney General's Manual on the Administrative Procedure Act states (21-22)
Section 3 does not require an agency to "freeze" its procedures . . Of course, the
published procedures of the agency may provide ( subject to applicable law) for
emergency or exceptional cases.
ss Subpart M of the Board 's Rules and Regulations relates to "Amendments." Sec. 102.92
provides : "Amendment or rescission of rules.-Any rule or regulation may be amended
or rescinded by the Board at any time ." This rule was published in the Federal Register
on August 22, 1947 , along with Section 102 . 72 of the Rules . 12 Fed. Reg . 5667-8. The
Supreme Court has sustained as valid under the publication requirements an order pur-
suant to a rule which provided for "such other reports" as the agency might require.
United States v. Morton Salt Co ., 338 U . S. 632 , 644-647 , 654 (1950).
31N. L. R. B. v. Monsanto Chemical Company, 205 F. 2d 763, 764-765 (C. A. 8; 1953).
In that case, the General Counsel sustained an application for review of an order by the
Regional Director dismissing a charge made 6 days after the time fixed by Board rule
for filing such an application . The sole question was whether the Board had authority
to entertain a proceeding under those circumstances.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to show that these sections do not forbid the action of which the
respondents complain.
I would apply in this case the procedures specified by the Act and
would not dismiss the complaint.
MEMBER FANNING took no part in the consideration of the above
Decision and Order on Review of Trial Examiner's Order Dismissing
Complaint.
OPINION AND ORDER ON MOTIONS TO DISMISS COMPLAINT
1. PRELIMINARY STATEMENT; THE ISSUES
On September 5, 1956, Acoustical Contractors Association of Cleveland , herein
the Association, filed with the Board 's Regional Director for the Eighth Region
a charge alleging that the Respondents had engaged in unfair labor practices within.
the meaning of Section 8 (b) (4) (D) of the National Labor Relations Act, herein
called the Act, by conducting a strike against members of the Association with an
object of forcing the assignment of certain work tasks to members of the Respondent
Unions rather than to members of the United Brotherhood of Carpenters & Joiners.
of America, AFL-CIO, herein the Carpenters.'
The Regional Director , after the receipt of the charge , did not institute a proceed-
ing for a hearing and determination under Section 10 (k) of the Act,2 as provided
for in the Board's published Rules and Regulations 3 and Statements of Procedure.4
' Section 8 ( b) (4) (D) provides :
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 a concerted refusal in the course of their employment to use, manu-
facture , 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 deter-
mining the bargaining representative for employees performing such work: .
2 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 • out of which such unfair' labor-
practice shall have arisen, unless within 10 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 the voluntary adjustmentIof -the-
dispute. Upon compliance by the parties to the dispute with the decision of the
Board or upon such voluntary adjustment of the 'dispute, the charge shall be'
dismissed.
The Board's Rules and Regulations-omitting only matters wholly immaterial to the,
issues here-provide :
SUBPART E-PROCEDURE TO HEAR AND DETERMINE DISPUTES UNDER
SECTION 10 (k) OF THE ACT
SEC. 102 . 71 Initiation of proceedings ; notice of filing charge ; notice of hear-
ing.-whenever it is charged that any person has engaged in an unfair labor prac-
tice within the meaning of paragraph ( 4) (D) of section 8 (b), the regional director'
shall investigate such charge . . . . If it appears to the regional director that fur-
ther proceedings should be instituted , he shall cause to be served on all parties to
the dispute out of which such unfair labor practice may have arisen a notice of the-
filing of said charge together with a notice of hearing before a hearing officer at a
time and place fixed therein which shall be not less than 10 days after service of
the notice of hearing . The notice of bearing shall contain a simple statement of
the issues involved in such dispute.
SEC. 102.72 Adjustments of dispute ; withdrawal of notice of hearing ; hearing.--
If, within 10 days after service of the notice of bearing , the parties submit to the.
WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 1361
Instead, the Regional Director resorted directly to the complaint procedures pro-
vided for in Section 10 (b) of the Act. On November 6, 1956, the Regional Director,
on behalf of the General Counsel, issued a complaint against the Respondents assert-
ing that they had engaged in conduct violative of Section 8 (b) (4) (D) of the
Act. The complaint, in addition to containing substantive allegations charging that
the Respondents by strike conduct engaged in an infraction of Section 8 (b) (4) (D),
alleged in substance that at the times material herein all employers and both unions
were parties to or bound by an agreement for the settlement of jurisdictional disputes
under the procedures of the Joint Board;5 that by virtue thereof there existed an
agreed-upon method for the voluntary adjustment of jurisdictional disputes, within
the meaning of Section 10 (k) of the Act; that after the strike occurred the Joint
Board requested the Respondents to comply with the aforesaid agreement by return-
ing their members to work immediately and processing any work complaints in
accordance with Joint Board procedures, but that the Respondents nevertheless in
noncompliance with such request continued the strike until October 1, 1956, and
then discontinued it only pursuant to an agreement reached in a Section 10 (1)
Federal district court injunction proceeding; that thereafter, on October 1, 1956, the
Joint Board issued a decision awarding the disputed work to the Carpenters, but
that the Respondents, although continuing to refrain from further strike activity
as provided for in the District Court agreement, have, nevertheless, refused to comply
with the work assignment award of the Joint Board.
The Respondents filed answers to the complaint, denying generally the commission
of unfair labor practices, and denying specifically, inter alia, that they had agreed to,
or were bound by, the Joint Board agreement, or that they had otherwise agreed
upon any method for the voluntary adjustment of jurisdictional disputes, within
the meaning of Section 10 (k) of the Act.
Together with the complaint, the Regional Director issued a notice of hearing
thereon for November 26, 1956. Prior to the hearing the Respondents filed with
the Regional Director motions to dismiss the complaint. Dismissal was requested
upon substantially the following alternative grounds:
1. If, as claimed by the Respondents, there existed no agreed upon method,
binding upon the Respondents, for the voluntary adjustment of the jurisdictional
dispute, then the Respondents were entitled "under the mandatory requirements
of Section 10 (k) of the Act" to a preliminary hearing before the Board and
a determination by it of the merits of the dispute. In any event, the Respond-
ents were entitled, as a minimum, to an opportunity to litigate in a Section 10 (k)
hearing, and to have the Board decide, the issue of fact as to whether there
regional director satisfactory evidence that they have adjusted or agreed upon methods
of voluntary adjustment of the dispute, the regional director shall withdraw the
notice of hearing and shall dismiss the charge . . . . [Emphasis supplied.]
Sec. 102.73 Proceeding before the Board; further hearings; briefs; certification.-
Upon the close of the hearing, the Board shall proceed either forthwith upon the
record, or after oral argument, or the submission of briefs, or further hearing, as
it may determine, to certify the labor organization or the particular trade, craft,
or class of employees , as the case may be, which shall perform the particular work
tasks in issue , or to make other disposition of the matter. . . .
SEC. 102.74 Compliance with certification; further proceedings.-If, after issu-
ance of certification by the Board, the parties submit to the regional director satis-
factory evidence that they have complied with the certification, the regional director
shall dismiss the charge. If no satisfactory evidence of compliance is submitted,
the regional director may proceed with the charge under paragraph (4) (D) of
section 8 (b) and section 10 of the act and the procedure prescribed in section
102.9 to 102.51, inclusive, shall, insofar as applicable, govern.
SEC. 102.75 Review of certification.-The record of the proceeding under section
1(1 (k) and the certification of the Board thereon, shall become a part of the record
in such unfair labor practice proceeding and shall be subject to judicial review,
insofar as it is in issue, in proceedings to enforce or review the final order of the
Board under section 10 ( e) and (f) of the act.
See, Sections 101.26 through 101.31. These restate substantially the provisions of
the Board 's rules as set out above.
I More fully known as the National Joint Board for Settlement of Jurisdictional Disputes
in the Building and Construction Industry.
476321-58-vol . 119-87
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
existed "agreed upon methods for the voluntary adjustment of the dispute,"
within the meaning of Section 10 (k) of the Act.
2. If, on the other hand, an agreed upon method did exist, as alleged in the
complaint, and though it be assumed that no Section 10 (k) proceeding was
therefore required, then the Regional Director was obliged by the express pro-
visions of Section 102.72 of the Board's Rules and Regulations and Section
102.28 of the Statements of Procedure, as well as by the Act itself, to dismiss the
charge which initiated the proceeding, and no complaint based upon such charge
may now be maintained. The issuance of the complaint in derogation of the
Board's own published rules and regulations was, moreover, in violation of the
Administrative Procedures Act.
3. In any case, no complaint alleging a violation of Section 8 (b) (4) (D)
may issue unless and until-at a very minimum-it is preceded by a Board
determination of the dispute under Section 10 (k) and by a failure of the
Respondents to comply with such determination. The General Counsel and
the Board are without power under the Act to enforce through unfair labor
practice procedures a violation of a private agreement or an award made'
thereunder by a private agency.
The aforesaid motions were opposed by the General Counsel and the Charging
Party. Oral argument in which all parties participated was heard by me at the
opening of the hearing on November 26, 1956. Because of the alternative grounds
pressed in support of the motions; because the nature of the decision and the form
of the order might vary depending on whether or not there existed an agreed-upon
method for voluntary adjustment, as alleged in the complaint and. disputed by the
Respondents; and because I considered resolution of that factal issue necessary to
an intelligent and definitive disposition of the motions, I directed, over the objection
of the General Counsel, a preliminary hearing on the limited issue of whether there
in fact existed such an agreed-upon method, binding upon all parties to the dispute.6
Thereupon, a hearing limited to that single issue was held on November 26 and
27, 1956. At the conclusion thereof, I reserved ruling on the motions to dismiss,
and adjourned the hearing on the complaint without date pending such ruling. On
December 11, 1956, briefs in support of the motions were filed by the Respondent
International and the Respondent Local, and a brief in opposition thereto was filed
by the General Counsel.
I shall consider below first the factual issue involved, and, on the basis of the
factual findings made on that issue, shall then consider the motions on their merits.
II. FINDINGS OF FACT ON THE ISSUE AS TO WHETHER THERE EXISTED AN AGREED-UPON
METHOD FOR THE VOLUNTARY ADJUSTMENT OF THE DISPUTE
The record shows without dispute that all employers concerned with this dispute
submitted themselves prior to the filing of the charge to the jurisdiction of the Joint
Board and expressly agreed to be bound by and to comply with the decision of the
Joint Board on the jurisdictional controversy. The record also shows without dis-
pute that the Carpenters was similarly bound by agreement to accept and comply
with the decision of the Joint Board, both by virtue of its membership in the Build-
ing and Construction Trades Department, AFL-CIO,7 which is a signatory to the
Joint Board agreement, and by virtue of the fact that the Carpenters is itself a signa-
tory to such agreement . The only thing contested is the status under the Joint Board
agreement of the Respondent International, herein the Lathers, and of the Respond-
ent Local. Actually, this involves a single question, for, as the Board has already
held, a finding that the Lathers is bound necessitates a finding that its locals are
equally bound, regardless of the presence or absence of separate express consent.8
As for the Lathers, the record shows the following:
For many years past the Lathers has been an affiliate of the Building Trades
Department which is a signatory to the agreement establishing the Joint Board.
The Procedural Rules and Regulations of the Joint Board, as authorized by the basic
agreement, provide, in part, that its procedures shall apply to "All unions affiliated
with the . Department." On the basis of facts just mentioned, the Board found
in the A. W. Lee case, supra, that the Lathers was bound by the Joint Board agree-
ment. On February 21, 1956-which was after the Lee case arose , but before the
occurrence of the dispute in the instant case-the Lathers formally notified the Joint
6 A request by the General Counsel for leave to appeal from that ruling was denied, by,
the Board. .
7 Hereinafter called Building Trades Department.
8 See A. W. Lee, Inc., 113 NLRB 947.
WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 1363
Board, the Building Trades Department and various employer associations that it
and its affiliated unions were withdrawing from all further participation under the
Joint Board agreement and would not consider themselves bound by Joint Board
decisions after March 31, 1955. The Lathers have continued since to adhere to
that position and have refrained from participation in all Joint Board proceedings
affecting it, including the Joint Board proceedings on the dispute in the instant case.
But the Building Trades Department has refused to acquiesce in the Lathers' with-
drawal action. At the Department's last convention, held in November 1955, the
General Executive Council of the Department recommended the adoption of a reso-
lution to insure the binding effect on all its affiliated unions of the Joint Board Plan
for the Settlement of Jurisdictional Disputes. That resolution, after reciting that
adherence to the Plan had been since 1948 a requirement of the Department's con-
stitution, though not printed therein, went on to declare:
Now, Therefore, Be It Resolved that the Constitution of the Department again
include Section 37 to read as follows: "Such Plan for the Settlement of Juris-
dictional Disputes recognized by the Building and Construction Trades Depart-
ment shall be recognized by and binding on all affiliates"
The resolution was adopted by the affirmative vote of all delegates except the Lath-
ers' delegates who alone voiced objection. Thereafter, on December 4, 1955, the
Lathers filed an appeal to the Executive Department of the American Federation of
Labor, requesting a reversal of the action taken at the convention. That appeal
has since been denied, and the Lathers has taken a further appeal to the next con-
vention of the AFL-CIO .9 Notwithstanding its objection to the action taken at the
Department convention, the Lathers has continued its affiliation with the Department
to this day.
The Respondents contend that, as to them, the Joint Board Plan may be consid-
ered neither as having been "agreed upon," nor as being a method for "voluntary
adjustment," within the meaning of Section 10 (k). To meet the requirements of
the quoted phrases, they say, calls for a showing both of direct affirmative assent
to the method of adjustment and of a willingness to accept and abide by whatever
adjustment is thereby reached. The requirements are not met, the Respondents
argue, where, as here, assent is not personal but imposed, and adjustment is not
sought but compelled. As proof of the absence of assent on their part and of their
unwillingness to accept the Joint Board's procedures as a method for "voluntary
adjustment," the Respondents point to their withdrawal from participation in the
Joint Board's agreement, their declared opposition to the amendment of the Depart-
ment's constitution at the convention, their appeal from the action there taken, and
their repudiation of the Joint Board Plan at every opportunity since March 1955.
The Respondents' contention need not be considered here at length. Except for
the one open question, presently to be disposed of, it is found effectively foreclosed
by established Board authority. The Board has ruled that where all parties to a
dispute are bound by the agreement which established the Joint Board, and which
provides for the submission of disputes to it, the parties have "agreed upon methods
for the voluntary adjustment of the dispute," within the meaning of Section 10
(k).10 It has already been found that all employers responsible for the assignment
of the disputed work are bound by the Joint Board agreement, and that the Car-
penters, the other disputing union, is also bound. The only question remaining
open, therefore, is whether the Respondents are likewise bound. On the evidence
presented, I am persuaded that they are. The law is clear that the constitution and
bylaws of an unincorporated association constitute a binding contract among its mem-
bers, defining not only the privileges received but the obligations imposed upon all
who become or choose to remain members." The Lathers, by retaining member-
ship in the Building Trades Department, though objecting to the convention resolu-
tion referred to above, continued to subject itself and its locals to all constitutional
requirements of Department membership, including the requirement that it recognize
and be bound by the Joint Board agreement which the Department executed on
9 As to the impact of the appeal on the operative effect of the resolution, it is noted
that rule 5 of the Department's General Rules provide that all affiliated unions are to
"comply with [Department] actions and decisions, subject to appeal therefrom to the
Executive Council."
'GA. W. Lee, Inc., supra; Local Union No. 1, Sheet Metal Workers International Asso-
elation, etc. (Meyer Furnace Company), 114 NLRB 924; Manhattan Construction Com-
pany, Inc.,'96.NLRB 1045.
A% Talton v. Behnke, 199 F. 2d 471, 473 (C. A. 7) ; Polin v. Koplin, 257 N. Y. 277, 281;
177 N. E. 833, 839.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
behalf of all its affiliates . I find no merit to the Respondent 's contention that the
constitutional requirement just adverted to must be viewed as stayed or suspended
by reason of its pending appeal therefrom . That contention is effectively disposed
of by the provision in the Department 's general rules noted above. Nor do I find
merit to its added argument that the Department 's constitutional requirements for
adherence by its affiliates to the Joint Board agreement was inconsistent with certain
provisions in the AFL-CIO constitution , and therefore ultra vires and void. That
is a matter to be determined by the AFL-CIO, not by this Board. Unless and until
the AFL-CIO rules otherwise , the Board must assume the validity of the Depart-
ment's action.
On all the evidence , and for the reasons stated , I conclude and find that all parties
to the dispute here involved agreed, before the charge in this case was filed, upon
a method for the voluntary adjustment of the dispute.
III. CONSIDERATION OF THE MOTIONS ON THEIR MERITS
Under Section 10 (k) the Board is freed from the statutory mandate to hear and
determine a jurisdictional dispute where the parties have submitted to the Board
"satisfactory evidence that they have adjusted, or agreed upon methods for the
voluntary adjustment of the dispute." The factual finding made above, thus removes
any need for further consideration of the first of the three alternative grounds of
the Respondents' motion, as outlined above.la
The Respondents'. added contention, that it was at least entitled to a hearing
in a 10 (k) proceeding on the question of whether in point of fact an agreed-
upon method existed, is likewise found to be without substance. Section 10 (k)
directs the Board, ;save in the excepted situations, to "hear and determine the dis-
pute out of which such unfair labor practices have arisen." It does not direct the
Board to conduct a hearing on whether such an agreement exists. On the con-
trary, the provision for the submission of satisfactory evidence of an adjustment or
agreement therefor within 10 days after notice of the filing of the charge necessarily
contemplates the receipt of such evidence before a hearing, rather than at a hearing.
The Board's rule providing for the submission of such evidence to the Regional
Director is to the same effect. That rule inferentially charges the Regional Director
with the responsibility of making an initial decision on that question solely on the
basis of the evidence, if any, so presented. It is true that the Board has frequently
received evidence in 10 (k) proceedings as to the existence or nonexistence of such
an agreement, and has decided that question in its decisions. But that does not
establish that the Board considers such a procedure to be required. In cases where
the Board finds, contrary to the contention of one or more of the parties, that no
agreement exists, it merely confirms the prehearing determination of the Regional
Director to that effect. Correspondingly, in the cases where the Board finds that an
agreement does exist, it in effect holds the Regional Director to have been in error in
noticing a 10 (k) hearing, and for that reason quashes the notice. Of course, the
Regional Director's initial determination ought not be a final and nonreviewable one.
Due process requires that before a final order is entered against a union, premised
even in part upon a Regional Director's finding of the existence or nonexistence of an-
agreement, the union at some earlier stage should be provided an opportunity to
litigate the correctness of that finding. But such an opportunity has already been
afforded the Respondents in this proceeding, and they are scarcely in a position now
to claim prejudice.
That brings us, then, to the Respondents' second alternative ground, that if, as
herein found, the Regional Director was right in determining that there was an
agreed-upon method for voluntary adjustment, he was wrong in not dismissing the
charge in obedience to the command contained in Section 102.72 of the Board's
Rules and Regulations and the corresponding provisions in Section 102.28 of the
Statements of Procedure. The General Counsel defends primarily by asserting that
those sections have no application to the situation in this case. As a secondary line
of defense, the General Counsel contends that the Board's published rule and pro-
cedural statement, even if otherwise applicable, are invalid as clearly in conflict
with the statute, and for that reason should be wholly disregarded.
'a The finding, however, does not necessarily dispose of the Respondent's somewhat re-
lated third ground, which proceeds on the theory that, even where such a method exists,
noncompliance therewith does not alone justify the Issuance of an 8 (b) (4) (D) com-
plaint, and if, by reason of such noncompliance, the Board thereafter elects to take inrls-
diction, it must then make a 10 (k) determination as a condition precedent to the Issuance
of a complaint.
WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 1365
I shall consider first the question of whether the rule is applicable. Rule 102.71
must be read in conjunction with Rule 102.72. The rules provide that "whenever"
an 8 (b ) (4) (D) charge is filed, the Regional Director must, if after investigation
it appears to him "that further proceedings should be instituted," serve all parties
to the dispute with notice of the filing of the charge together with a notice of a
Section 10 (k) hearing. They then provide that if, within 10 days after such service,
"the parties submit to the regional director satisfactory evidence that they have ad-
justed or agreed upon methods of voluntary adjustment of the dispute, the Regional
Director shall withdraw the notice of hearing and shall dismiss the charge." [Em-
phasis supplied.] The General Counsel insists that the aforesaid rules apply only to
a situation where a Regional Director determines initially to institute a proceeding
under Section 10 (k). They do not apply, he says, where, as here, the Regional
Director satisfies himself on the basis of his preliminary investigation that an agreed-
upon method of voluntary adjustment exists and therefore determines not to in-
stitute a proceeding under 10 (k). To support his position, the General Counsel
makes two main points. He directs attention, first, to the phrase in Section 102.71
reading, "If it appears to the Regional Director that further proceedings should be
instituted." On the basis of that phrase, he argues that the procedures thereafter set
out can refer only to a situation where proceedings under Section 10 (k) to hear
and determine a dispute are to be undertaken. The procedures which follow that
phrase can have no application, he says, where a 10 (k) proceeding is unauthorized
because an agreed-upon method of adjustment exists. The General Counsel directs
attention, secondly, to the fact that Section 102.71 and the sections that immediately
follow are contained in a subpart of the Board's Rules and Regulations, entitled
"Procedure to Hear and Determine Disputes Under Section 10 (k) of the Act." 13
The title of the subpart, he argues, serves to limit the scope of the rules embraced in
it, "thereby making clear that the sections thereunder are applicable only to those
8 (b) (4) (D) charges in which the proceedings before the Board provided for in
Section 10 (k) are to be initiated."
I am unable to agree with the interpretation the General Counsel would give the
rules in question. To begin with, I do not read the phrase, "If it appears to the
regional director that further proceedings shall be instituted," in the second sentence
of Rule 102.71, as limiting the substantive provisions of the Rules and Regulations to
situations only where the Regional Director has decided to institute further proceed-
ings under Section 10 (k). The plain and unambiguous meaning of Section 102.71
is to make the provisions therein contained applicable "whenever it is charged" that
an 8 (b) (4) (D) violation has occurred, with this one limitation: that the Regional
Director need take no action at all if after investigation it appears to him that no
prima facie case of a violation appears, and that therefore no "further proceedings,"
whether under Section 10 (k) or under Section 10 (b), (e), or (1), are warranted in
any event.14 Nor do I find supportable the General Counsel's argument which would
interpret the rules differently from the way they read because of the subpart title
under which they are contained. Where, as here, the wording of the body of the
rules is clear, there is no need to resort to the title to explain its meaning. What the
General Counsel is in effect seeking to do is to utilize the title to create an ambiguity
that does not exist in the body of the rule, and then to use that same title to resolve
the ambiguity which it creates. But that is a device that has always been frowned
upon as a guide to statutory construction.15 But such considerations aside, there is
a more important reason for rejecting the interpretation urged by the General Coun-
sel-and that is its complete unreasonableness. What the General Counsel is saying
in effect is that the Board by rule 102.72 contemplated the dismissal of a charge if
satisfactory evidence of an agreed upon method of adjustment was submitted to him
after the issuance of a 10 (k) notice, but if the same evidence under otherwise par-
allel circumstances was submitted to him before issuance of the notice, the charge
should remain alive for further processing in an unfair labor practice proceeding.
Such a construction simply does not make sense.
The finding here made, that Section 102.72 of the Rules and Regulations and
-Section 101.28 of the Board's Statements of Procedure are applicable to this pro-
ceeding, perhaps makes it unnecessary for this opinion to go any further. But the
importance of this issue to the Board, which, unlike the Trial Examiner, is in a
position if need be to revise its own rule, may excuse extended consideration of the
's The corresponding provisions in the Board 's Statements of Procedure, as the General
Counsel also points out, are contained in a subpart, entitled, "Jurisdictional Disputes
Under Section 10 (k) of the Act."
'i See, Herzog v. Parsonns,181 F. 2d 781 (C. A., D. C.).
15 See , Sutherland, Statutory 'Construction, 14892. :
1366 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD'
General Counsel's added claim that the rule is invalid as inconsistent with the
statute.
On the point just mentioned, the General Counsel's argument goes substantially
as follows: Section 10 (k) in its first sentence precludes the Board from determining
a jurisdictional dispute pursuant to an 8 (b) (4) (D) charge where the parties have
adjusted, or agreed upon methods for the voluntary adjustment of the
dispute.
But 10 (k) in its second sentence provides for the dismissal of the charge only:
Upon compliance by the parties to the dispute with the [10 (k)] decision of
the Board or upon voluntary adjustment of the dispute.
without, however, declaring that the existence of "agreed upon methods for volun-
tary adjustment" shall also require dismissal. The contrasting language in the two
sentences reflects that, while it was Congress' purpose to withhold from the Board
all power at any stage to make a 10 (k) determination where there was either an
`'adjustment" or an "agreed upon method[s] for voluntary adjustment," Congress
intended to draw a distinction between the two phrases for dismissal purposes, so
as to provide for the dismissal of the charge only when there is actual, final adjust-
ment of the dispute, but not otherwise. That construction-the General Counsel
further submits-not only comports with a literal reading of the language of 10 (k),
but is the only one reasonably consistent with legislative policy. One statutory
purpose was to encourage the voluntary adjustment of disputes without governmental
interference. Promotion of that purpose requires that, once parties to a dispute
have agreed upon a method of adjustment, they must be held to their agreement
even though the agreement has not yet produced an actual settlement to which all
parties have acceded. That purpose would be frustrated if a party, disgruntled with
the agreement or with an award made under it, were allowed to fall back on the
Board for a Section 10 (k) determination.16 Another statutory purpose was to
protect neutral employees and the public from injury unfairly imposed by jurisdic-
tional warfare. To accomplish that purpose, the Board must remain in a position
where it can restrain jurisdictional strikes through appropriate remedial proceedings
under Section 10 of the Act, including 10 (1), in the words of the General Counsel's
brief, "without regard to whether the strike occurs before efforts at adjustment,
pending determination of the dispute by an agreed method or by the Labor Board,
or upon a union's failure to adjust the dispute in accordance with the agreed method
or Labor Board determination." That purpose could not be accomplished if, as
provided for in the Board's rule, a charge were not permitted to remain alive after
a showing that an agreed upon method of adjustment existed, for without a surviv-
ing charge the Board will be powerless to resort to procedures under Section 10
(b) (c) (e) and (1) to end jurisdictional strife where such strife persists despite
an agreed upon method of adjustment. Therefore-the General Counsel's argument
concludes-in 8 (b) (4) (D) situations where an agreed upon method of adjustment
exists, but no final adjustment has occurred, the statute must be read as allowing
direct resort to the procedures of 10 (b) (c) (e) and (1) of the Act, without any
need for an intermediate 10 -(k) determination, or a showing of noncompliance
therewith, as a condition precedent to the issuance of a complaint.
The problem, however, is not as uncomplicated as the General Counsel would
have it appear. In all 8 (b) (4) (D) complaint cases that have heretofore come
before the Board-none, however, involving situations in which agreed upon adjust-
ment methods were found to exist-the Board has required proof of noncompliance
with a Section 10 (k) determination as a condition precedent to a finding of an
8 (b) (4) (D) violation.17 The General Counsel's argument rests on the premise
that in cases where no determination under Section 10 (k) is required, no evidence
of noncompliance therewith may be expected, and that in such cases, therefore, the
Board must proceed under Section 8,(b) (4) (D) as if Section 10 (k) were not in
the statute at all. The soundness of the General Counsel's position may be tested
in part by viewing its possible consequences . If accepted and given full scope with
all its logical implications, it would seemingly require the Board to process an 8 (b)
(4) (D) charge to a complaint proceeding even though at the time there was still
is That view has the support of Board authority. See, William F. Traylor, 97 NLRB
1003 Roy Stone Transfer Corporation, 99.NLRB 662; A. W. Lee, Inc., supra: Local
Union No. 1, Sheet Metal Workers International Association, etc. (Meyer Furnace Com-
pany ) , supra.
17 See, e. g., Westinghouse Electric Corporation , 88 NLRB 1101 ( see also 94 NLRB 415)
Bechtel Corporation, 112 NLRB 812; Frank W. Hake, 112 NLRB 1097.
WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 1367
;pending an undetermined arbitration to which all parties had agreed. Conceivably,
a complaint proceeding under such circumstances might result in a Board order
that would. defeat the arbitration award ultimately rendered. To allow an 8 (b)
(4) (D) charge to be processed under such circumstances would appear to be at
variance with what the Board has already declared to be a clear statutory purpose-
"to provide the parties with an opportunity to settle jurisdictional disputes among
themselves without Government intervention wherever possible." 18 Full accept-
ance of the General Counsel's theory, moreover, would apparently also require the
Board to proceed with a complaint and issue an 8 (b) (4) (D) order against a
union engaged in a strike to enforce a work assignment arbitration award which
has been rendered in its favor, but with which the employer and opposing union,
though also bound by the arbitration agreement, are refusing to comply. Such a
result would also seem to be at odds with statutory policy.19
The foregoing objections might perhaps be met by the Board declaring that in the
exercise of administrative discretion it will not process such an 8 (b) (4) (D)
charge to its complaint stage unless and until there has first been a failure by the
union charged with the violation to comply with the agreed upon method for
voluntary adjustment, or with an award made under it. Indeed, the General
Counsel's precise position in the instant complaint may be regarded as so limited 20
But that would involve a major modification of the statutory reading urged by
the General Counsel. The practical effect would be to superimpose upon the
statutory requirement of compulsory compliance with Board 10 (k) determina-
tions, where appropriate, a requirement for Board enforceable compulsory com-
pliance with private adjustment procedures and awards in cases where 10 (k)
determinations are ruled inappropriate. But such a position may raise doubts as
to legality. For, the statute speaks only of "compliance by the parties to the
dispute with the decision of the Board"; the phrase "voluntary adjustment" as
used in the last sentence of Section 10 (k) may not unreasonably be read as being
antithetical to a concept of Board enforced involuntary compliance with arbitration
awards; and there is legislative history open to the interpretation that Congress
intended, where voluntary adjustment failed, to have the Board enforce compliance
with its own determinations only 21 It may also raise problems of policy. Thus,
for example, if the Board for enforcement purposes were to give private arbitra-
tion awards a status equal to its own, it might mean that the Board might be called
upon in some cases to place the imprimatur of its approval on awards that might
conflict with other statutory policies. It might also mean that the Board might
be obliged in certain situations to find a union guilty of an 8 (b) (4) (D) viola-
tion , though, if it had made its own initial determination or applied its own
standards, it would have found the Respondent Union entitled to the controverted
work assignment and immune from liability for insisting upon it.22
"Manhattan Construction Company, Inc., supra, at p. 1048 ; A. W. Lee, Inc., supra,
at p. 951.
i Cf. William F. Traylor, 97 NLRB 1003; Roy Stone Transfer Corporation, 99
NLRB 662.
nAs noted above, the complaint here expressly alleges, apparently as a predicate for
the asserted 8 (b) (4) (D) violation, that the Respondents failed to comply with the
Joint Board agreement, both by failing, in conformity with Joint Board procedural re-
quirements, to heed the Joint Board's request for a discontinuance of strike activity, and
by failing to accept the work assignment award ultimately made by the Joint Board.
m S. Rept. 105 on S. 1126, and see p. 23. See also, H. Conf. Rept. 510, on H. R. 3020,
p. 561.
22 This problem, however, may be more theoretical than real. The Board's usual determi-
nation in 10 (k) proceedings is that the, Respondent Union is not lawfully entitled to work
the employer is unwilling to assign to it. Departures have occurred only in cases where
the disputed work was found to be within the collective-bargaining unit for which the
striking union was the certified representative (Winslow Bros. d Smith Co., 90 NLRB
1379, 1385) or within the coverage of the union's contract even though the union was not
certified (NVational Broadcasting Co., 105 NLRB 355). But by virtue of the express
proviso of Section 8 (b) (4) (D), it would' seem that a unit defense by a certified repre-
sentative could be raised in a complaint proceeding in any event. While that may not be
true in the case of a contract defense, it is not unreasonable to hold that where a union
agrees to'the arbitration of work jurisdictional disputes, it waives its right to have its
contract 'claim litigated in any other forum. Indeed, that in effect was a holding of the
Board in the A. W. Lee, Inc. case, supra.
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, though the General Counsel's reading of the statute is certainly a
possible one, and perhaps even an acceptable one, I am unable to go along with the
General Counsel's assertion that it is altogether unreasonable to construe the
statute in harmony with the dismissal requirement of rule 102.72. The Respondents
in conformity with the Board's rule, would construe Section 10 (k) as precluding
Board intervention of any kind in a situation where all parties to a dispute have
agreed upon a method for voluntary adjustment, and as leaving it to the parties
themselves to enforce compliance therewith either through sanctions provided
for in the agreement itself 23 or through their civil remedies at law. Such a
construction is not to be lightly discarded as one palpably lacking in substance.
It is at least possible without undue distortion to read the phrase "upon such
voluntary adjustment" appearing in the second sentence of Section 10 (k) as
relating back not only to the word "adjusted" in the first sentence, but also to the
phrase, "agreed upon methods for the voluntary adjustment of the dispute," on
the theory that a settlement agreement by all concerned to submit a dispute to
binding arbitration constitutes a form of "voluntary adjustment." 24 Nor is such
a construction altogether without support in legislative history. As already noted,
the committee reports and debates reflect that it was Congress' desire to have
jurisdictional disputes adjusted wherever possible by the parties directly involved
in the dispute, in their own way and without governmental intervention. From
this it can be argued that Congress intended that the statutory objectives should be
deemed satisfied, and the Board should be relieved of any duty to intervene, where
all parties affected by the jurisdictional dispute, the neutral employer as well as
the contesting unions, bound themselves to settle the dispute by a method of their
own, such as private arbitration, that they could themselves enforce.
There is no Board precedent to support the General Counsel's position that the
Board can and should intervene in a jurisdictional dispute with an unfair labor prac-
tice proceeding where it will not intervene with a 10 (k) determination. Except
for the rule, there is no decisive Board authority oppositely, either; but one long-
'established Board principle may be read as pointing in a direction away from the
General Counsel's position. Thus, early in the administration of the Act, the
Board held in the Juneau Spruce Corporation case, 82 NLRB 650, that a 10 (k)
proceeding was a statutory prerequisite to the issuance of an 8 (b), (4) (D) com-
plaint, 25 and in later cases, the Board reinforced that principle by casting on the
General Counsel the burden of proving noncompliance with a 10 (k) determination
as a condition precedent to an 8 (b) (4) (D) finding.26 It is true that the principle
referred to is not necessarily controlling here, for thus far it has been applied
only in cases where no agreed upon method for voluntary adjustment was found
to exist. But it nevertheless suggests a possible reason for requiring the dismissal
of charges in cases where a showing of noncompliance is made impossible by
the preclusion of a Section 10 (k) determination. As indicative of past practice,
it is significant that no 8 (b) (4) (D) complaints were issued in those cases where
the Board declined to determine disputes in 10 (k) proceedings because of the
existence of agreed upon voluntary adjustment procedures, even where it appeared
that the disputes were not finally adjusted. It is to be presumed that the charges
in those cases were dismissed or withdrawn as required by the Board's rule. That
this was so in the first of these cases, Manhattan Construction Company, Inc., supra,
affirmatively appears from a subsequent court proceeding. See Manhattan Con-
struction Company, Inc. v. N. L. R. B., 198 F. 2d 320 (C. A. 10).27 In William F.
' The Joint Board's Procedural Rules set out certain procedures relating to the enforce-
ment of compliance with the rules and awards of that body.
24 The Respondent Lathers in its brief also stresses that the word "adjustment" In the
first sentence is not modified by "voluntary," and argues that in using the phrase "volun-
tary adjustment" in the second sentence Congress must have intended something more
than a final "adjustment," which, whether voluntary or not, would close out the matter
in any event.
ss In International Longshoremen's and Warehousemen's Union, Local No. 16, 070 v.
Juneau Spruce Corporation, 342 U. S. 237, the Supreme Court, although it did not squarely
pass on the point, referred with seeming approval to the Board's position that it "must
first attempt to resolve the dispute by means of a 10 (k) determination before it can
move under 10 (b) and (c) for a cease and desist order."
21 See cases cited in footnote 17.
21. The court proceeding was instituted by a petition to review filed by the employer
who complained of the failure and refusal of the General Counsel to issue an 8 (b ) (4) (D)
complaint because of the Board 's 10 (k ) determination . The court decision notes that
WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 1369
Traylor, supra, and Roy Stone Transfer Corporation, supra, where the employers
were refusing to comply with adjustment awards in favor of the respondent unions,
it is fair to infer, though this is not expressed in the Board's decisions, that the
Board contemplated that its denial of a determination would finally end the case,
foreclosing an 8 (b) (4) (D) complaint. A. W. Lee, Inc., supra, and Local No. 1,
Sheet Metal International Association, etc. (Meyer Furnace Company), supra,
stressed by the General Counsel, simply stand for the proposition that the Board
will not, in the face of an agreed upon method, determine a jurisdictional dispute
even though the respondent union has repudiated the agreement and failed to
comply with the arbitration award. There is nothing in them to indicate that
the Board was ready, nevertheless, to entertain an unfair labor practice proceeding
on the charge. It is significant that in the Lee case the amicus curiae brief argued
the very statutory construction the General Counsel now urges; yet the Board
has not since seen fit to revise the Board's rule which is plainly at variance with
that construction. It has heretofore been generally understood that where parties
to a dispute have agreed upon a method of settlement, the Board would proceed no
further.28
To make this analysis complete, mention may be made of one other possible
interpretation of the statute, though it is seemingly now foreclosed by Board
precedent. That is to read the statute as requiring the Board to stay its hand in a
jurisdictional dispute where the parties have agreed upon their own method to
.dispose of the dispute; without, however, precluding the Board from thereafter
intervening in the public interest if such method broke down and failed to achieve
a termination of the conflict. Where such a failure occurred-under this interpre-
tation-the Board could view the agreed upon method as no longer effective; itself
determine the dispute in a 10 (k) proceeding; and, if necessary, thereafter process
an unfair labor practice complaint. But a Board 10 (k) determination and a show-
ing of noncompliance therewith would still be a prerequisite to the issuance of a
complaint. That substantially is the position advanced in the Respondents' third
alternative ground, as set out above. Such an interpretation would not necessarily
be inconsistent with the Board's rule even if the words "voluntary adjustment" in
the last sentence of 10 (k) were read as referring only to a final adjustment. For
the Board's rule could still be justified as a reasonable administrative implementa-
tion of the statute. The theory of this would be that as long as an apparently
effective private method of adjustment existed, it would be pointless to keep the
charge actively on file since the Board was powerless to process it; but if there
should later develop a failure of the settlement procedures, the old charge could be
reinstated, or a new one accepted, and made the basis for further proceedings
under Section 10, including, if necessary, injunction proceedings under Section 10
(1). However, such a statutory construction may not now be regarded as feasible,
upon the quashing of the notice of hearing in the 10 (k) proceeding, the employer was
advised that no further proceedings would be taken on the charge. The court in that case
did not pass on the substantive issue raised, but granted the Board's motion to dismiss
the petition for review on the ground that no final and reviewable order was before it.
28 Thus. for example, Professor Archibald Cox of Harvard Law School, testifying as an
impartial witness before the Senate Labor Committee in 1953, stated :
Under the present law the National Labor Relations Board will not issue a cease and
desist order under 10 (c) . until it had conducted a hearing under Section 10 (k)
on the merits of the jurisdictional disputes. Where the parties to the 10 (k) proceed-
ing have agreed upon methods for the settlement of the dispute the Board proceeds no
further. It is doubtful, however, whether anything in the present law gives affirma-
tive relief to a labor organization against a contractor or opposing union which falls
to comply with a jurisdictional award made pursuant to private agreement.
To correct what he considered to be "faults" in the law Professor Cox proposed two
amendments to the statute. One, would have amended Section 8 (b) (4) (D) to immunize
a labor organization from an 8 (b) (4) (D) violation for engaging in a strike where the
employer was failing to conform to a jurisdictional award made by the Board or by any
private agency to which the employer had agreed to submit a jurisdictional dispute. The
other, would have amended Section 10 (k) to provide that the Board should proceed at
once with an unfair labor practice proceeding, without a preliminary 10 (k) determina-
tion, in a situation where a union engaged in a strike to bring about a work assignment
without waiting for, or contrary to, a decision of any body to which the parties had
voluntarily agreed to submit their dispute (Taft Hartley Act Revisions , Hearing before
the Committee on Labor and Public Welfare, U. S. Senate, 83d Cong., 1st seas.,. part 4,
p. 2428).
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unless the Board is prepared to overrule established precedents. It is true, as the
Respondent Lathers point out, that the Board has on occasions taken into account,
among other factors, whether an asserted agreed upon adjustment method has
proved effectual, in deciding whether to proceed with a 10 (k) determination 29
But in all cases where that was done, it appears that there was also some. other,
supportable basis for finding the absence of an agreed upon method. In any
event, the more recent A. W. Lee Inc., and International Union No. 1, Sheet Metal
Workers Association, etc. (Meyer Furnace Company) cases stand solidly for the
proposition that once a method of voluntary adjustment has been agreed upon,
the Board will refuse itself to determine the dispute in a 10 (k) proceeding, even
where the agreed upon method has demonstrably failed to achieve its purpose of
bringing an end to the jurisdictional conflict.
There can, of course, be no question that in choosing-where one has the power
of choice-among various possible interpretations of an ambiguous statute, substan-
tial weight should be given to the consideration of which of the allowable choices
would best effectuate the purposes of the Act.30 If, as the General Counsel urges,
the overriding statutory purpose was to enable the Board to protect the public as
well as neutral employers from injury caused by jurisdictional strikes, and if the
opposing arguments noted above are not regarded as providing insurmountable legal
or policy obstacles, much is to be said in favor of the position the General Counsel
advocates in this case. It alone provides an effective procedure allowing the Board
to remain in a position at all times to take appropriate measures to restrain juris-
dictional strikes which persist despite a private agreement for the adjustment of
the dispute. An equally effective procedure might have been available if the statute
had been construed to permit the Board to intervene to determine a jurisdictional
dispute notwithstanding an agreed-upon method of adjustment in situations where
that method had proved ineffectual to bring an end to jurisdictional strife. And at
the same time such a construction would have met the Respondents' principal argu-
ment that the Board may not under the statute avoid the obligation of making its
own determination of the dispute in cases where it elects to process a charge in an
unfair labor practice proceeding. But, as noted above, that construction is now
foreclosed by the A. W. Lee and Local Union No. 1, Sheet Metal Workers Interna-
tional Association, etc. (Meyer Furnace Company) cases. If the statute is read
as requiring the Board to invoke the complaint and temporary injunction proce-
dures of Section 10 ^(b) (c) and (1) where agreed upon voluntary methods fail to
achieve industrial peace, the Board's only choice now-unless it desires to reconsider
its position in A. W. Lee and Local No. 1, Sheet Metal Workers International Asso-
ciation, etc . (Meyer Furnace Company)-is to go the whole route and hold with
the General Counsel that while an agreed-upon adjustment method, even where it
proves ineffectual, precludes a Board 10 (k) determination, it does not preclude
unfair labor practice proceedings under other appropriate subdivisions of Section
10. The third possible construction, to which the Board's published rule conforms,
that an agreed-upon method of adjustment ousts the Board from all jurisdiction over
a jurisdictional dispute, would, of course, bar the Board from moving to restrain
conduct which, in the absence of such a method, would be regarded as violative
of Section 8 (b) (4) (d). As the doctrine of preemption would probably not
apply under such circumstances, it would, however, allow the parties to pursue
their civil remedies at law to compel enforcement of the arbitration agreement and
compliance with awards made under it.31
2° See, e, g., Safeway Stores, Incorporated, 101 NLRB 181, 186; Ora Collard, 98 NLRB
346, 349 ; Frank W. Hake, 109 NLRB 854, 857.
301n his statement to the Senate Labor Committee referred to above, Professor Cox-
I think correctly from my own reading of the debates and committee reports-outlined
the three main purposes of Section 8 (b) (4) (D) and 10 (k) as follows : (1) to outlaw
jurisdictional strikes ; (2) to encourage the settlement of jurisdictional differences without
Government intervention; and (3) to empower the Board to determine disputes not settled
by agreement or private arbitration.
81 In one sense this might be said to comport with the statutory objective of encouraging
the settlement of jurisdictional disputes without Government intervention. But it may
also be viewed as having a discouraging effect, in that the denial of access to Board
procedures to end jurisdictional strikes, even though civil remedies remain available, may
deter employers from agreeing in advance of disputes upon arbitration procedures such as'
that provided by the Joint Board agreement. There are undoubtedly many policy con-
siderations 'arguing in favor of strengthening a private arbitration body such as the Joint
Board, a body more familiar with the complexities and subtleties of jurisdictional disputes
MISSISSIPPI RIVER CHEMICAL CO. 1371
The question of whether the statutory construction urged by the General Counsel
would better than any other effectuate the policies of the Act is one, however, that
is not for me to decide. The fact remains that the General Counsel's position has
no present support in Board precedent, while that of the Respondents, which would
require the dismissal of the complaint, is not only consistent with at least one pos-
sible and not necessarily implausible construction of the statute, but is reinforced
by an authoritative rule and regulation of the Board. Of course, the Board need
not be a slave to its own rules, and should be free to alter a rule if in the light
of additional learning and experience it becomes convinced that some other rule
would better effectuate the purposes of the Act. But where, as here, a rule embody-
ing a statutory construction does not necessarily do violence to the language of the
Act, is one that was promulgated contemporaneously with the passage of the Act
by those entrusted with the responsibility of its administration, and has stood unchal-
lenged for almost 10 years, it should not be overturned even by those authorized
to do so, except for cogent reason.32 As for me, an agent of the Board, there is
no choice. As long as the published rule remains unchanged, I must regard it as
having the force of law, binding on me, and, I think, on the General Counsel no
less. Consequently, as Section 102.72 of the Board's Rules and Regulations and
Section 101.28 of its Statements of Procedure, Series 6, as amended, are here clearly
controlling, and command dismissal of this proceeding, the Respondents' motions to
dismiss the complaint are hereby granted upon that ground.
It is so ordered.
in its industry, and one, moreover, whose work has been endorsed by the Joint Con-
gressional Committee as a successful effort to effectuate a legislative purpose. See, Report
of the Joint Committee on Labor-Management Relations pursuant to LMRA, Section 403,
80th Cong., 2d sess., part 1, at p. 19 (Mar. 15, 1948) : Aid. Final Report at p. 58.
ae Norwegian Nitrogen Company v. U. S., 288 U. S. 294, 315 ; U. S. v. American Trucking
Association, 310 U. S. 534, 549.
Mississippi River Chemical Co. Division of Mississippi River
Fuel Corp .' and International Union of Operating Engineers,
AFL-CIO, Petitioner
Mississippi River Chemical Co. Division of Mississippi River
Fuel Corp. and Oil, Chemical and Atomic Workers, Interna-
tional Union , AFL-CIO, Petitioner . Cases Nos. 11-RC-30,02 and
14-RC-3275. January 20, 1958
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Henry G. Carlson,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.2
I The name of the Employer appears as amended at the hearing.
2 The hearing officer, over the objection of the International Union of Operating En-
gineers, AFT-CIO, herein called the Operating Engineers, permitted Oil. Chemical and
Atomic Workers, International Union, AFL-CIO, herein called the OCAW, to intervene
in Case No. 14-RC-3222 for the purposes of opposing a unit of maintenance and boiler-
house operators and asserting that a production and maintenance unit is the only appro-
priate unit. At the hearing, the OCAW requested that its name appear on the ballot for
any unit or units that the Board found appropriate. On September 26, 1957, the OCAW
filed its own petition (Case No. 14-RC-3275) seeking the same production and mainte-
nance unit which it previously urged appropriate at the hearing on July 29, 1957. On
October 25, 1957, the Operating Engineers filed with the Board a motion to revoke the
notice of hearing and dismiss the petition in Case No . 14-RC-3275, which was denied by
119 NLRB No. 165.