Masonry Magazine March 1972 Page. 25
Foot-notes 1-31
Supreme Court of the United States
Nos. 70-63 & 70-65
`29 U. 8. C. 141 et seq.
`Section 8 (b) (4) (D) provides that it shall be an unfair labor practice for a labor organization or its agents (1) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case 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 representatives for employees performing such work." 29 U. 8. C. 158 (b) (4) (1964).
`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 158 (b) of this title, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen unless, within ten 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 dispute. 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." 29 U. B. C. 160 (k) (1964).
`R.. at 18.
`This dispute grew out of a new method of applying tile which was developed in the mid-1950's. R., at 111. 123, 135,
`The National Joint Board for the Settlement of Jurisdictional Disputes is an arbitration panel established for a 1945 agreement between the Building and Construction Trades Department. AFL-CIO, and the Associated General Contractors of America and several specialty contractors associations. The Joint Board consists of an equal number of representatives of employers and unions and a neutral chairman. An employer may become a party to a Joint Board proceeding by signing a stipulation agreeing to be bound by the results of the proceeding. Art. III. 17. Joint Board Constitution. AFL-CIO, Bldg. & Constr. Trades Dept.. Plan for Settling Jurisdictional Disputes Nationally and Locally 10 (1970). Member unions of the AFL-CIO's Building Trades Department do not have to agree formally to abide by Joint Board decisions, because they are bound by virtue of provisions contained in their constitutions. AFL-CIO, Bldg & Constr. Trades Dept., Procedural Rules and Regulations of the National Joint Board 2 (1970). See generally, K. Strand Jurisdictional Disputes in Construction: The Causes, the Joint Board, and the NLRB 89-194 (1961). In the cases here, both the Tile Setters and the Plasterers were members of the Building Trades Department.
`In the Texas State case, the Joint Board on November 9, 1966, awarded all of the disputed work to the Plasterers except "any coat to be applied wet the same day under tile." R., at 314. The Tile Setters refused to give up the work of laying the plaster undercoat to which the dry mortar was applied, claiming that the Joint Board decision gave this work to them. The Plasterers established a picket line on January 24, 1967: on March 6, 1967, the Joint Board issued a clarification of its decision, stating that the final smooth plaster coat was to be done by the Plasterers unless it was laid the same day as the tile and dry-set mortar were applied, in which case it was to be done by the Tile Setters. R., at 412.
`The employer-subcontractor, Texas State, intervened as a party.
`R.. at 20-21.
`The NLRB considered the collective-bargaining agreements among the parties, Industry and area practice, relative skills and efficiency of operation, past practices of the employers, agreements between the Plasterers and the Tile Setters, the Joint Board award (the NLRB refused to give this controlling weight because of its "ambiguous nature." R.. at 20). and concluded: "Tile setters are at least as skilled in the performance of the work as plasterers, and both Texas Tile and Martini, which assigned them to the work, have been satisfied with both the quality of their work and the cost of employing them. Moreover, the Instant assignments of the disputed work to tile setters are consistent with the explicit provisions of the collective bargaining agreement between the Tile Setters and Texas Tile and Martini, are consistent with the past practice of the Employers and are not inconsistent with area or industry practice..." R. at 21. The Board's decision in the 10 (k) proceeding is reported at 167 N. L. R. B. 185 (1967) and its decision and order in the unfair labor practice proceeding are reported at 112 N. I. R. B. No. 76, 72 (1965).
`The 110 (k) determination is not binding as such even on the striking union. If that union continues to picket despite an adverse 10 (k) decision, the Board must prove the union guilty of an 8 (b) (4) (D) violation before a cease-and-desist order can issue. The findings and conclusions in a § 10 (k) proceeding are not res judicata on the unfair labor practice issue in the later §8 (b) (4) (D) determination. International Typographical Union, 125 N. L. R. B. 759, 761 (1935) Both parties may put in new evidence at the (b) (4) (D) stage, although often, as in the present cases, the parties agree to stipulate the record of the § 10 (k) hearing as a basis for the Board's determination of the unfair labor practice. Finally, to exercise its powers under 10 (k), the Board need only find that there is reasonable cause to believe that an 8 (b) (4) (D) violation has occurred, while in the §s (b) (4) (D) proceeding itself the Board must find by a preponderance of the evidence that the picketing union has violated 8 (b) (4) (D), International Typographical Union, 125 N. I. IR. 8. 150, 761, n. (1959).
`Plasterers Local Union No. 79. Labor Board. 440 F. 2d 174 (CADC 1970).
`masonry • March, 1972
`Id., at 189. Although the dispute at the Martini work site had not been submitted to the Joint Board, the Court of Appeals nevertheless held that, because the two unions had agreed to be bound by the procedures and decisions of the Joint Board, the NLRB was precluded from hearing and determining the Martini dispute under § 10 (k).
`103 U. 8. 916, 929 (1971).
`See CFR 102.8. 102.9, 102.109 (1971) International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO, Local 282 v. Scofield, 282 U. 8. 205, 219-221 (1965).
`See The Employer as a Necessary Party to Voluntary Settlement of Work Assignment Disputes Under Section 10 (k) of the NLRA. 38 U. Chi. L. Rev. 389, 400 (1971).
`R., at 96-97, 130-132, 141.
`R. at 55, 129, 145-148.
`See, e... Lodge es of the Int'l Assn. of Machinists (Moore Drydock Co.), 81 N. L. R. B. 1105, 1113-1114, 1126-1125 (1949); Local 231, Int'l Hod Carriers (Middle States Telephone Coj, 91 N. L. R. B. 598, 60s (1950) United Brotherhood of Carpenters, Local (Ora Colland), 98 N. L. R. R. 346, 348-349 (1912) United Assn, of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Cascade, 105 N. L. R. B. 186, 197 (1954): Bay Counties District Council of Carpenters, Inc., 115 N. L. R. B. 1767, 1966-1767 (1956): Local 178, Wood, Wire, and Metal Lathers Int'l Union (Newark and Kanez Plastering Co.), 121 N. L. R. B. 1094, 1103-1104 (1965) Jul Union of Operating Engineers (Seckwermax Co. of Pa. Inc.) 139 N. I. R. B. 1426, 1429 (1962): Carpenters District Council of Denver Inc. (J. O. Veteto & Son), 146 N. L. R. B. 1242, 1245 (1964): Electrical Workers, Local 26 (McCloskey & Co.), 147 N. L .R. B. 1458, 1501-1548 (1964): Operative Plasterers Int'l Assn. (Twin City Tile & Marble Co.), 152 N. 1. R. B. 1609, 1611, 1615 (1965): Full Union of Operating Engineers. Local 43 (Egan-Mckay Electrical Contractors, Ind.), 151 N. L. R. B. 672, 673 (1967). The Board has reasserted this view since the Court of Appeals decision in the instant case, Lathers Local 201 (Blaine Petty Co.), 186 N. L. R. B. No. 16 (1976). Until now, courts of appeals have uniformly upheld the Board's position: Orleans Typographical Union No. 17 v. Labor Board (E. P. Rivas) 365 F. 2d 755 763 (CAS 1966), Labor Board v. Local 875, Int'l Union of Operating Engineers (Nichols Electric Co.), 376 F. 2d 213, 214 (CAS 1964): Local 130, Int'l Union of Operating Engineers v. Elliott (Sline Industrial Painters), 256 F. 2d 630, 634 (CAS 1958), See also Carey v. Westinghouse Electric Corp., 375 1. 8. 261, 264 (1964), citing Wood, Wire & Metal Lathers Union (Newark and Eames Plastering Co.) 119 N. L. R. B. 1345, 1847 (1958).
`This dismissal will not be pursuant to the language of § 10 (k) directing dismissal upon "compliance by the parties with the Board's decision" but rather under § 8 (b) (4) (D) because the "employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work." Apparently, the Board construes this language to include disregarding a § 10 (k) decision. Brief for the N. L. It. B., at 23, n. 16. 28, n. 21. At the time of the two cases here, 29 CFR § 102.91 provided that "if the Board determination is that employees represented by a charged union are entitled to perform the work in dispute the regional director shall dismiss the charge as to that union irrespective of whether the employer has complied with that determination.
`Set Cong. Rec. 1911 (1947). Cf. also 3 Cong. Rec. 1830 (remarks of Sen. Morse) (1947).
`House Conf. Rep. No. 510 on H. R. 1020, at ST (50th Cong., 1st Ses) (1947).
`See. 13 Cong. Rec. A1296 (remarks of Cong. Landis) (1947): 93 Cong. Rec. 3634 (remarks of Cong. Hartley) (1947): 93 Cong Ree, 3329-3330 (remarks of Sen. Luens) (1947) 13 Cong. Ree. 5062-5066 (remarks of Sen. Aiken) (1947): Cong. Hee. A1317 (remarks of Sen. Ball) (1947). Section 10 (k) protection was also extended to unorganized employees. In the Senate bill, (b) (4) (D) covered only cases where two unions claimed the same work, but the section was broadened in the Conference Committee to cover conflicts between organized and unorganized employ. See CBS, supra, at 584
`In what is apparently the only time employer participation in the resolution of jurisdictional disputes was explicitly considered, Senator Taft indicated that the employer should be a party to the proceeding: "Mr. Morreale General Counsel. Intl. Hodcarriers, Building, and Common Laborers of America): I do not think [compulsory arbitration between the antagonistic unions) should be just by labor itself, but that it should be in combination with Industry, because in all those matters the employers are affected and interested, as well as is labor. I think the procedure set up should provide for a joint procedure between management and labor. "Sen. Taft: I have no objection to giving both to labor and management the right to arbitrate or address themselves to arbitrating the question. Hearings on S. 55 before the Senate Committee on Labor and Public Works, 80 Cong.. 1st Sess., M. 3, t The arbitration provision in the Senate version of § 10 (k) was deleted without explanation in Conference. See n. 27. infra.
`In construing a statute, the Court has ruled that legislative materials, if "without probative value, or contradictory, or ambiguous," should not be permitted to control the customary meaning of words. United States v. Dickerson, 310 . 8. 554, 562 (1940). See also Gemsee, fee. v. Walling, 324 U. 8. 244, 260 (1945). The Court has previously had occasion to construe the term "party" in the National Labor Relations Act, and it has given it a broad and realistic definition. In Lewis v. Labor Board, 357 U. S. 10 (1958), the issue was whether the Board's General Counsel was a "party" who could apply to the Board for the Issuance of a subpoena The General Counsel Counsel had obtained subpoenas duces tecum ad testificandum to both an employer and a union after an unfair labor practice complaint had been issued at the hearing on the complaint, the employer and union had moved to revoke the subpoenas on the ground that the General Counsel was not a "party" for purposes
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