Masonry Magazine March 1972 Page. 22
MCAA Information
That section directs the Board to "hear and determine the dispute out of which the alleged unfair labor practice arose; the Board is required to decide which union or group of employees is entitled to the disputed work in accordance with acceptable, Board-developed standards, unless the parties to the underlying dispute settle the case or agree upon a method for settlement. Whether the $ 8 (b) (4) (D) charge will be sustained or dismissed is thus dependent on the outcome of the 510 (k) proceeding. The Board allows an employer to fully participate in a § 10 (k) proceeding as a party. If the employer prefers the employees to whom he has assigned the work, his right to later relief against the other union's picketing is conditioned upon his ability to convince the Board in the $10 (k) proceeding that his original assignment is valid under the criteria employed by the Board.
The alleged unfair labor practice in this case was the picketing of the job sites by the Plasterers, and the dispute giving rise to this picketing was the disagreement over whether Plasterers or Tile Setters were to lay the final plaster coat. This dispute was a three-cornered one. The Plasterers made demands on both Texas State and the Tile Setters and on both Martini and the Tile Setters. In both cases, the employer's refusal to accede to the Plasterers' demands inevitably and inextricably involved him with the Tile Setters the was this triangular dispute which the § 10 (k) proceeding was intended to resolve.
It may be that in some cases employers have no stake in how a jurisdictional dispute is settled and are interested only in prompt settlement. Other employers, as shown by this case, are not neutral and have substantial economic interests in the outcome of the § 10 (k) proceeding. A change in work assignment may result in different terms or conditions of employment, a new union to bargain with, higher wages or costs, lower efficiency or quality of work. In the construction industry, in particular, where employers frequently calculate bids on very narrow margins, small cost differences are likely to be extremely important. In the present case, both employers had collective bargaining contracts with the Tile Setters specifically covering the work at issue; neither had contracts with the Plasterers nor employed Plasterers regularly. Both employers determined it to be in their best interests to participate vigorously in the Board's 10 (k) proceeding. The employers contended it was more efficient and less costly to use the same craft for applying the last coat of plaster, putting on the bonding coat, and laying the tile and that it was more consistent with industry practice to use the Tile Setters as they did. Both companies claimed that their costs would be substantially increased if the award went to the Plasterers, and that without collective bargaining contracts with the Plasterers, they would lose 30%-40% of their work to plastering contractors." It is obvious, therefore, that both Texas State and Martini had substantial stakes in the outcome of the § 10 (k) proceeding.
The phrase "parties to the dispute" giving rise to the picketing must be given its common-sense meaning corresponding to the actual interests involved here. Cf. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO, Local 283 v. Scofield, 382 U. S. 205, 220 (1965). Section 10 (k) does not expressly or impliedly deny party status to an employer, and since the section's adoption in 1947, the Board has regularly accorded party status to the employer and has refused to dismiss the proceeding when the unions, but not the employer, have agreed to settle."
The Court of Appeals rejected this construction of $ 10 (k). Its reasoning, which we find unpersuasive, was that because the employer is not bound by the § 10 (k) decision, he should have no right to insist upon participation. But the § 10 (k) decision standing alone, binds no one. No cease-and-desist order against either union or employer results from such a proceeding; the impact of the § 10 (k) decision is felt in the § 8 (b) (4) (D) hearing because for all practical purposes the Board's award determines who will prevail in the unfair labor practice proceeding. If the picketing union persists in its conduct despite a § 10 (k) decision against it, an § 8 (b) (4) (D) complaint issues and the union will likely be found guilty of an unfair labor practice and be ordered to cease and desist. On the other hand, if that union wins the $ 10 (k) decision and the employer does not comply, the employer's $ 8 (b) (4) (D) case evaporates and the charges he filed against the picketing union will be dismissed." Neither the employer nor the employees to whom he has assigned the work are legally bound to observe the $ 10 (k) decision, but both will lose their 8 (b) (4) (D) protection against the picketing which may, as it did here, shut down the job. The employer will be under intense pressure, practically, to conform to the Board's decision. This is the design of the Act; Congress provided no other way to implement the Board's $10 (k) decision.
We do not find that the legislative history of $ 8 (b)(4)(D) and 10 (k) requires a different conclusion. The Court of Appeals and the Plasterers rely upon various statements in the legislative history of the two sections, particularly the remarks of Senator Morse, referring to jurisdictional disputes as controversies between two labor unions, and a passage in the House Conference Report referring to 5 10 (k) as directing the Board to "hear and determine disputes between unions giving rise to unfair labor practices under tices under $8 (b)(4) (D), Nothing in these remarks or in the other relevant legislative documents indicates an affirmative intent to exclude an interested employer from participating in a 5 10 (k) proceeding. The usual focus of the legislative debates was on ways of protecting the employer from the economic havoc of jurisdictional strikes." But it does not follow from statements condemning the economically deleterious effects of inter-union strife that Congress intended an employer to have no say in a decision that may, practically, affect his business in a radical way. Congress did not expressly focus on the non-neutral employer, but there is nothing in the legislative history that negatives employer standing:" and in referring to the "parties to the dispute, Congress used terminology that would ordinarily include the employer in cases such as these."
The Court has frequently cautioned that "lilt is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law." Girouard v. U. S., 328 U. S. 61, 69 (1946). Boys Markets Inc. v. Retail Clerks Union, Local 770, 398 U. S. 235, 241 (1970). It is clear that Congress intended to protect employers and the public from the detrimental economic impact of "indefensable jurisdictional strikes. It would therefore be myopic to transform a procedure which was meant to protect employer interests into a device which could injure them. In the absence of an "unmistakable directive," the Court has refused to construe legislation aimed to protect a certain class in a fashion that will run counter to the goals Congress clearly intended to effectuate. F. T. C. v. Fred Meyer Inc., 390 U. S. 341, 349 (1968). We conclude, therefore, that these sections were enacted to protect employers who are partisan in a jurisdictional dispute as well as those who are neutral.
Nothing in Labor Board v. Radio and Television Broadcast Engineers (CBS), supra, mandates a different conclusion. Until that case, the Board's practice had been to decide against the striking or picketing union unless it was entitled to the work pursuant to a Board certification or a collective bargaining contract. The Court found the Board to have taken too narrow a view of its task and held that the Board, employing broader, more inclusive criteria with respect to entitlement, must make an affirmative award to one union or the other. In the course of its opinion, the Court referred to $ 10 (k)'s phrase "the dispute out of which such an unfair labor practice shall have arisen" as having "no other meaning except a jurisdictional dispute under $ 8 (b) (4) (D) which is a dispute between two or more groups of employees over which is entitled to do certain work for an employer." 364 U. S., at 579. Again, we have no quarrel with the view that $ 10 (k) is designed to decide which union is entitled to the work. But the issue before us is whether the employer is also a party to that dispute and to the proceeding which decides that question. The Court in CBS did not have before it a case in which the employer was particularly interested in which union did the work, since it had collective bargaining contracts with both unions and since both unions were able to do the disputed work with equal skill, expense, and efficiency. The Court recognized that there, "as in
masonry
•March, 1972