Masonry Magazine October 1982 Page. 34
vision defeats the viability of the first obligation
Rather, so long as all parties are bound by one of two dispute settlement procedures, there exists a binding agreed-upon method of settlement. Under these circumstances, the existence of the other settlement procedure becomes totally irrelevant.
Second, assumptions aside. I find all parties herein are, in fact, bound by the awards of the JCB. I reject the argument of the Employer and the Laborers that they are now obligated only to the dispute resolution procedures of the Laborers-MCAA contract. Neither of these parties has ever given proper notice so as to withdraw from and terminate their respective commitments to honor decisions of the JCB. Absent such notice, I would not find that the work dispute provision of the Laborers-MCAA agreement, merely by its terms, has ended the obligation of these parties to abide by the awards of the JCB. If that effect is given to the work dispute provision of the Laborers-MCAA agreement, it would permit and encourage parties to switch and/or abandon their private settlement procedures whenever they deemed it advantageous to do so.
In my judgment, the decision of my colleagues permits these parties to do just that. That is, finding it to their advantage to avoid their commitment to the awards of the JCB, the Employer and Laborers seek to rely on another work dispute provision to justify their actions and gain the Board's sanction of the Employer's work assignment.
Congressional policy clearly is to encourage the voluntary adjustment of jurisdictional disputes. Accordingly, when parties, as here, have bound themselves to an agreed-upon method of settlement, they should be required to abide by their commitments and honor the decisions arrived at thereby. Thus, I would quash the
12. See generally my dissent in Laborers' District Council of Washington, D.C. and Vicinity, affiliated with Laborers' International Union of North America, AFL-CIO (Western Caissons, Inc.), 240 NLRB 1161 (1979).
13. See generally my dissents in Construction and General Laborers, Local Union No. 449, Connecticut Laborers District Council, Laborers' International Union of North America, AFL-CIO (Modern Acoustics, Inc.), 260 NLRB No. 112 (1982), and Millwrights Local Union No. 1862 (Jelco, Inc.). 184 NLRB 347, 549 (1970).
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notice of hearing in this case."
Dated, Washington, D.C. July 22, 1982
John H. Fanning.
Member
NLRB/MCWAD, INC.
continued from page 25
D. Applicability of the Statute
Before the Board may proceed with a determination of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the parties have not agreed upon a method for the voluntary adjustment of the dispute.
As noted above, Marvin Market testified that, at the first part of the meeting on June 11, Don Shaw stated that the disputed work should be performed by employees represented by the Operating Engineers, and that if such an assignment were not made then the Operating Engineers would picket the jobsite on the following Monday. According to Market's testimony, during the second phase of the meeting when Wadzinski and representatives of the Laborers were present, Market accused Shaw of having previously threatened to picket the jobsite if the disputed work were not assigned to operating engineers. At that time Shaw did not respond to the accusation. Shaw does not deny stating that the Operating Engineers might picket, but he asserts that he indicated only that the Operating Engineers might picket to advertise Market & Johnson's refusal to arbitrate the grievance. Additionally, it is undisputed that, by letter dated June 15, the Laborers threatened to picket or take other appropriate action if the disputed work were not assigned to its members.
At the hearing the Operating Engineers contended that both Unions were bound to submit disputes to the Impartial Jurisdictional Disputes Board. However, the Operating Engineers conceded that it has no knowledge of whether the Employer is bound to that procedure, and no evidence was adduced at the hearing to demonstrate that the Employer is so bound. The Employer asserts that it is not a signatory to any agreement providing for the submission of disputes to the Impartial Jurisdictional Disputes Board.
Therefore, on the basis of the entire record, we conclude that there is reasonable cause to believe that both the Operating Engineers and the Laborers have violated Section 8(b)(4)(D) of the Act, and we further conclude that there exists no agreed-upon method for the voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that this dispute is properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various factors. The Board has held that its determination in a jurisdictional dispute is an act of judgment based on commonsense and experience reached by balancing those factors involved in a particular case."
The following factors are relevant in making the determination of the dispute before us:
6. The Operating Engineers contends that there is a conflict between the testimony of Shaw & Market concerning Shaw's statements at the June 11 meeting. However, even if we assume that there is a legally significant conflict in the evidence, we note that in a proceeding under Sec. 10(k) the Board is required only to find that there is reasonable cause to believe that Sec. 8(b)(4)(D) has been violated. In so finding, we need not conclusively resolve conflicts in the testimony. See International Brotherhood of Electrical Workers, Local Union 103 of Greater Boston (Maki Electrical, Inc.), 227 NLRB 1745, 1746 (1977). We also reject the Operating Engineers' contention that the Laborers' threat of June 15 was nothing more than a "friendly" attempt to provide the Employer with a basis for filing a charge. We note that the Laborers' contract with the Employer calls for the assignment of the disputed work to employees whom it represents, and that there is nothing to indicate that the picketing threat was not serious. See Glaziers and Glassworkers Local Union No. 767 (Sacramento Metal & Glass Co.), supro at 201.
7. N.L.R.B. v. Radio & Television Broadcast Engineers Union. Local 1212. International Brotherhood of Electrical Workers, AFL-CIO (Columbia Broadcasting System), 364 U.S. 573 (1961).
8. International Association of Machinists, Lodge No. 1743, AFL-CIO (J.A. Jones Construction Co.), 135 NLRB 1402 (1962).