Masonry Magazine March 1972 Page. 24
MCAA Information
(Continued from page 22)
most instances the quarrel was of "so little interest to the employer that he seems perfectly willing to assign work to either [union] if the other will just let him." 364 U. S., at 579 (emphasis added). We have no doubt, therefore, that the Court had no intention of deciding the case now before us.
If employers must be considered parties to the dispute that the Board must decide under § 10 (k), absent private agreement, they must also be deemed parties to the adjustment or agreement to settle that will abort the $ 10 (k) proceedings. It is insisted that so holding will encourage employers to avoid private arbitrations, whereas holding union agreement alone sufficient to foreclose Board action will pressure employers to become part of private settlement mechanisms productive of sound result and much swifter decision.
The difficulties with this argument are several. First of all, if union agreements to arbitrate are sufficient to terminate $10 (k) proceedings, there is no assurance that these private procedures will always be open to employer participation, that an employer will be afforded a meaningful chance to participate or that all relevant factors will be properly considered.
Second, the argument for regarding the employer as a dispensable neutral is reminiscent of the position taken by the Board and rejected by the Court in the CBS case. There, the Board sought to justify a narrow view of its function and its failure to make affirmative awards as generating pressure to settle or arbitrate privately. As $ 10 (k) passed the Senate, it directed the Board to decide the dispute or to order arbitration, but the arbitration alternative was deleted in Conference, and the amended bill was passed by the Senate over the strenuous objections of Senator Morse and others. By this amendment, the Court in CBS held that Congress had expressed a clear preference for Board decision as compared with compelled arbitration, and that this policy preference must be respected. 364 U. S., at 581-582. 81-582. Although this Court has frequently approved an expansive role for private arbitration in the settlement of labor disputes, this enforcement of arbitration agreements and settlements has been predicated on the view that the parties have voluntarily bound themselves to such a mechanism at the bargaining table. In both Carey v. Westinghouse Electric Corp., 375 U. S. 261, 262 (1964) and Boys Markets, Inc. v. Retail Clerk's Local 770, 398 U. S. 235, 238 (1970), the employers had acceded to binding arbitration as the terminal step of the grievance procedure. This concession is not present in the instant case; the employers here did not even have a collective bargaining contract with the Plasterers. Section 10 (k) contemplates only a voluntary agreement as a bar to a Board decision. As in CBS, we decline to narrow the Board's powers under 3 10 (k) so that employers are coerced to accept compulsory private arbitration when Congress has declined to adopt such a policy.
There remains the matter of the so-called Safeway rule announced by the Board in 1962 and followed since. Under this rule, the Board has held that if one of the unions claiming work effectively renounces its claim, § 10 (k) proceedings are aborted despite legitimate interests an employer may have in securing a Board decision. It is urged that if union agreement prevents a § 10 (k) decision in such a situation, the employer cannot be considered a party to the § 10 (k) dispute when the unions but not the employer have agreed upon a method of settlement. As we understand the Safeway doctrine, however, when one union disclaims the work, § 10 (k) proceedings terminate not because all "parties" to the dispute have settled or agreed to settle within the meaning of the statute but on the ground that, in the words of the Board's brief in this case, "the Board has power under $ 10 (k) only to hear and determine the merits of a jurisdictional dispute and... by definition, such a dispute cannot exist unless there are rival claims to the work.
Concededly, an employer may be a third party to disputes over work assignments, but when the other two parties settle their differences and one union declines the work assigned to it, the inter-union conflict 55 8 (b) (4) (D) and 10 (k) were designed to eliminate disappears. A 5 10 (k) hearing is a comparative proceeding aimed at determining which union is entitled to perform certain tasks. Its function evaporates when one of the unions renounces and refuses the work. Similarly, the applicability of $ 8 (b)(4)(D) is premised on conflicting claims of unions or groups of employees for the same job; absent such an actual conflict, it would be futile to proceed under that section unless the employer replaces the disclaiming employees by a new third group of employees when they reject the work assignment, and the disfavored union resumes picketing.
If union settlement followed by disclaimer ends the 5 10 (k) case, some of the argument about the employer's party status becomes academic; for whether the employer is a party or not, the two unions alone can prevent a Board decision. But recognizing the employer's party status insures his right to participate when the unions do not agree and the Board must come to a decision. Further, the Board's Safeway rule applies only where the inter-union conflict is effectively settled and the employer no longer faces conflicting claims to the work. As this case demonstrates, the Board does not apply the Safeway rule to unimplemented agreements to arbitrate between the unions alone, and it does not consider it applicable where employees continue on the job after their international union loses an arbitration proceeding and renounces the work. These de facto disputes are real, and they deserve Board resolution if the purposes of $ 10 (k) are to be achieved. Cf. CBS, supra, at 579-580.
The Court of Appeals would extend the Safeway rule to foreclose Board decision where the two unions but not the employer have agreed to arbitrate; inter-union agreement was deemed equivalent to effective disclaimer by one of the unions. This view ignores the narrow view the Board has taken of the Safeway rule. It also fails to recognize the problem arising where a local union or group of employees continues to do work assigned by the employer yer d despite agreement or disclaimer by their parent body. It makes little difference to the picketing union that there has been a "settlement" or an agreed-upon method of deciding the dispute as long as it is barred from enjoying the results of such a theoretical resolution. In the instant case, the Board held a § 10 (k) hearing for the simple reason that a live unresolved jurisdictional dispute between unions and employer in fact existed.
Our conclusion evinces no hostility to voluntary settlement of disputes and is wholly consistent with federal policy with respect to voluntary arbitration. In other contexts, where challenged conduct poses an arbitrable dispute under a collective-bargaining contract but is also an unfair labor practice within the jurisdiction of the Board, the Board will, as a matter of policy, defer to the arbitral settlement, although it is not bound to do so by the LMRA. See 29 U. S. C. § 160 (a); Carey v. Westinghouse Corp., 375 U. S. 261, 272 (1964); Labor Board v. Strong, 393 U. S. 357, 360-361 (1969); Labor Board v. Acme Industrial Co., 385 U. S. 432, 438 (1967). Although the Board is not statutorily required to honor arbitration awards in such situations, it often defers to them if the arbitrator has considered the alleged unfair labor practice. Spielberg Mfg. Co., 112 N. L. R. B. 1080 (1955); International Harvester Co., 138 N. L. R. B. 923 (1962), enforced sub nom. Ramsey v. Labor Board, 327 F. 2d 784 (CA7 1964). But again, such deference is in the context of voluntary arbitration. In the case before us, the LMRA requires that the Board defer only when all of the parties have agreed on a method of settlement; when there has been such an agreement, the Board cannot ignore or override the result of that settlement procedure. In the present cases, however, it is claimed the Board must defer when less than all the parties to the dispute have agreed to arbitrate.
Reversed.
Foot-notes 1-31 follow
(All Foot-notes Appear at End of Article)
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masonry
• March, 1972