Masonry Magazine March 1972 Page. 21
MCAA
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SUPREME COURT OF THE UNITED STATES
Nos. 70-63 & 70-65
National Labor Relations
Board, Petitioner,
70-63 V.
Plasterers' Local Union
No. 79, Etc., et al.
Texas State Tile & Ter-
razzo Co., Inc., et al.,
Petitioners,
70-65 V.
Plasterers' Local Union
No. 79, Etc., et al.
On Writ of Certiorari to the
United States Court of
Appeals for the District
of Columbia Circuit.
[December 6, 1971]
MR. JUSTICE WHITE delivered the opinion of the Court.
When a charge is filed under 58 (b) (4) (D), the provision of the Labor Management Relations Act' banning so-called jurisdictional disputes, the Board must under $ 10 (k) "hear and determine the dispute out of which [the] unfair labor practice shall have arisen unless the parties to such dispute" adjust or agree upon a method for the voluntary adjustment of the dispute. The issue here is whether an employer, picketed to force reassignment of work, is a "party" to the "dispute" for purposes of $ 10 (k). When the two unions involved, but not the employer, have agreed upon a method of settlement, must the Board dismiss the $ 10 (k) proceedings or must it proceed to determine the dispute with the employer afforded a chance to participate?
Texas State Tile & Terrazzo Company (Texas State) and Martini Tile & Terazzo Company (Martini) are contractors in Houston, Texas, engaged in the business of installing tile and terrazzo. Both have collective bargaining agreements with Tile, Terrazzo and Marble Setters Local Union No. 20 (Tile Setters) and have characteristically used members of the Tile Setters union for laying tile and also for work described in the collective bargaining contract as applying "a coat or coats of mortar, prepared to proper tolerance to receive tile on floors, walls and ceilings regardless of whether the mortar coat is wet or dry at the time the tile is applied to it."
These cases arose when Plasterers' Local Union No. 9, Operative Plasterers and Cement Masons' International Association of Houston, Texas (Plasterers), picketed the job sites of Texas State and Martini claiming that the work of applying the mortar to receive tile was the work of the Plasterers' union and not of the Tile Setters. Neither Texas State nor Martini had a collective bargaining contract with the Plasterers or regularly employed workers represented by that union.
Before the Texas State picketing began, the Plasterers submitted their claim to the disputed work to the National Joint Board for Settlement of Jurisdictional Disputes (Joint Board), a body established by the Building Trades Department, AFL-CIO, and by certain employer groups. Both the Plasterers' and the Tile Setters' locals were bound by Joint Board decisions because their international unions were members of the AFL-CIO's Building Trades Department. Neither Texas State nor Martini had agreed to be bound by Joint Board procedures and decisions, however. The Joint Board found the work in dispute to be covered by an agreement of August 1917, between the two international unions, and awarded the work to the Plasterers. When Texas State and the Tile Setters refused to acquiesce in the Joint Board decision and change the work assignment, the Plasterers began the picketing of Texas State which formed the basis for the 8 (b) (4) (D) charges. The Plasterers also picketed a job site where Martini employees, members of the Tile Setters, were installing tile, although this dispute dispute had not been submitted to the Joint Board.
Martini and Southwestern Construction Company, the general contractor which had hired Texas State, filed 8 (b)(4) (D) unfair labor practice charges against the Plasterers, and the NLRB's regional director noticed a consolidated 10 (k) hearing to determine the dispute. Southwestern, Texas State, Martini, and the two unions participated in the hearing. A panel of the Board noted that the Tile Setters admitted being bound by Joint Board procedures, but deemed the Joint Board decision to lack controlling weight, and "after taking into account and balancing all relevant factors awarded the work to the Tile Setters. When the Plasterers refused to indicate that they would abide by the Board's award, an § 8 (b) (4) (D) complaint was issued against them, and they were found to have committed an unfair labor practice by picketing to force Texas State and Martini to assign the disputed work to them." In making both the § 10 (k) and 8 (b)(4)(D) decisions, the Board rejected the Plasterers' contention that even though the employer had not agreed to be bound by the Joint Board decision, the provisions of § 10 (k) precluded a subsequent Board decision because the competing unions had agreed upon a voluntary method of adjustment.
On petition to review by the Plasterers and cross petition to enforce by the Board, a divided panel of the Court of Appeals set aside the order of the Board." It held that "It is not the employer but the rival unions (or other employee groups) who are parties to the jurisdictional dispute contesting which employees are entitled to seek the work in quetion. It concluded that the Board may not make a § 10 (k) determination of a jurisdictional dispute where the opposing unions have agreed to settle their differences through binding arbitra-tion. Both the Board and the employers petitioned for certiorari, and we granted the petitions,"
Section 8 (b)(4)(D) makes it an unfair labor practice for a labor organization to strike or threaten or coerce an employer or other person in order to force or require an employer to assign particular work to one group of employees rather than to another, unless the employer is refusing to honor a representation order of the Board. On its face, the section would appear to cover any union challenge to an employer work assignment where the prohibited means are employed. Labor Board v. Radio and Television Broadcast Engineers Union, Local 1212 (CBS), 364 U.S. 573, 576 (1960). As the charging or intervening party, the employer would normally be a party to any proceedings under that section." Section 8 (b)(4)(D), however, must be read in light of 5 10 (k) with which it is interlocked. Labor Board v. Radio and Television Broadcast Engineers, supra, at 576. When an 98 (b)(4)(D) charge is filed and there is reasonable cause to believe that an unfair labor practice has been committed, issuance of the complaint is withheld until the provisions of $ 10 (k) have been satisfied.