Masonry Magazine March 1972 Page. 26
Foot-notes
(Continued from page 25)
The Court noted that the Act does not define the term "party," but it emphasized that the role of the General Counsel was a "major one" in unfair labor practice proceedings. 357 U. S. at 15. The General Counsel was held to be a party because he was "indispensable to the prosecution of the case and because relegating him to a lesser status would overlook the critical role he performs in enforcement of the Act. 367 U. S, at 16. This description is equally applicable to an employer's function in an (b) (4) (D) proceeding. In International Union, United Automobile Aerospace & Agricultural Implement Workers of America, AFL-CIO, Local 283 v Scofield, 382 U. S. 265 (1965), the Court went through a somewhat similar analysis of the substantive interests involved at the judicial enforcement stage of an unfair labor practice proceeding, and concluded that a successful "charged" or "charging party before the Board had a right to intervene in the ensuing Court of Appeals action.
Excluding the employer from participation as a party is inconsistent with the common law rule that "all persons materially interested in the result of a suit ought to be made parties so that the court may do "complete justice" Vetterlein Barnes, 124 U. S. 169, 170-171 (1888). Story v. Livingston, 35 U. S. (13 Peters) 359, 375 (1839).
President Truman, 1947 State of the Union Message. 53 Cong. Rec. 136 (1947).
The Board has stated its guidelines for resolving jurisdictional disputes: "The Board will consider all relevant factors in determining who is entitled to the work in dispute, e. s., the skills and work involved, certifications by the Board, company and industry practice, agreements between unions and between employers and unions, awards of arbitrators, joint boards, and the AFL-CIO in the same or related cases, the assignment made by the employer, and the efficient operation of the employer's business. This list of factors is not meant to be exclusive, but is by way of illustration... Every decision will have to be an act of judgment based on common sense and experience rather than on precedent." Int'l Assn. of Machinists, No 1713 (J. A. Jones Construction Co.), 135 N. L. R. B. 1402, 1410-1411 (1962).
The Joint Board award in this case was based solely on the Joint Board's interpretation of a 1917 agreement between the two International unions and a 1924 decision interpreting that agreement. R., at 63, 69-70, 73-76. At the time of the dispute, the criteria used by the Joint Board in making awards were: "Decisions and agreements of record as set forth in the Green Book [the Building Trades Department's book of precedents], valid agreements between affected International Unions attested by the Chairman of the Joint Board, established trade practice and prevailing practice in the locality." Art. III. 11 (a), Joint Board Constitution, AFICIO Bldg. & Constr. Trades Dept., Plan for Settling Jurisdictional Disputes Nationally and Locally 194 (1966). These criteria were broadened in 1970 by the addition of Art. III. 1 (f), which provides "Because efficiency cost and good management are essential to the well-being of the industry, the Joint Board should not ignore the interests of the consumer in settling jurisdictional disputes." AFL-CIO Bldg. & Constr. Trades Dept.. Plan for Settling Jurisdictional Disputes Nationally and Locally 8 (1970).
93 Cong. Rec 6610 (1947) 53 Cong. Rec. 6678 (remarks of Sen. Pepper) (1947).
Highway Truckdrivers, Local 107 (Safeway Stores, Inc.), 134 N. L. R. R. 1320 (1961).
Int'l Assn. of Bridge Workers, Local 678 (W. R. Aldrich & Co.), 145 N. 1. R. 8. 943 (1964): Carpet Layers (Southwestern Floor Co.). Local 1905, 143 N. L. R. B. 251 (1963): Wood, Wire & Metal Lathers Union, Local 323 (Acoustica & Specialties, Inc.), 100-N. I. R. B. 598 (1962).
Brief of N. L. R. R., at 30 n. 22. In a case interpreting the Safeway doctrine, the Board stated that 5 10 (k) is limited "to situations involving competing claims between rival groups of employers, and (was) not designed to require the Board to arbitrate peting claims (of another union) are involved." Carpet. Linoleum & Soft Tile Layers, Local 1995 (Southwestern Construction Co.), 143 N. L. R. B. 251, 253-256 (1963) (emphasis in original).
Carpenters Local 1819 v. C. J. 216 221 (CA9 1964): Plumbers & Pipetters Local 525. 173 N. L. R. R. No. 208 (1968). The Board has also held that a union cannot avoid a 10 (k) determination by a disclaimer of interest in presently representing the employees in question. United Mine Workers (Turman Construction Co.), 136 N. L. R. 8. 1068 (1962), and it has ignored explicit disclaimers when it has questioned a representative's authority to disclaim work. Millwrights Local 1113 (Broodez Co.), 157 N. L R B. 996 1002 (1965), See also Local 1791, Int'l Longshoremen's Assn. (Pocahontas Steamship Co.). 152 N. L. R. B. 676 (1945), enforced, 368 F. 24 107 (CAS 1966), cert, denied, 386 U. 8. 1633 (1967) Bricklayers Local 2. 102 N. L. R. B. 278, 282 (1965): Bldg. and Construction Trades Council of Las Vegas, Nev. (Charles J. Dorfman Co.), 173 N. IR. B. 1339 (1968).
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masonry
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• March, 1972