RESPONDENT: Plasterers' Union International Assn., AFL-CIO
LOCATION: Bay Marchand Area
DOCKET NO.: 70-63
DECIDED BY: Burger Court (1971-1972)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit
CITATION: 404 US 116 (1971)
ARGUED: Oct 13, 1971
DECIDED: Dec 06, 1971
Donald J. Capuano - for respondents
Laurence Stephen Gold - for the American Federation of Labor and Congress of Industrial Organizations, as amicus curiae
Norton J. Come - for National Labor Relations Bd
Wayne S. Bishop - for Texas State Tile & Terrazzo Co., Inc. and others
Facts of the case
Media for National Labor Relations Board v. Plasterers' Union International Assn., AFL-CIO
Audio Transcription for Oral Argument - October 13, 1971 in National Labor Relations Board v. Plasterers' Union International Assn., AFL-CIO
Warren E. Burger:
We will hear arguments next in No. 63, National Labor Relations Board against the Plasters’ Union, No. 65, Texas State Tile & Terrazzo Company against the Plasters’ Union.
Mr. Come you may proceed whenever you are ready.
Norton J. Come:
Mr. Chief Justice and may it please the Court.
This case is here on certiorari to the Court of Appeals for the District of Columbia Circuit and it presents a question involving the interpretation of the jurisdictional dispute provisions of the National Labor Relations Act.
Now, Section 8 (b) (4) (D) of the National Labor Relations Act, which is set out at page 3 of governments brief, makes it an unfair labor practice for a labor organization to strike or threaten to strike an employer for an object of forcing him to assign work to employees in a particular order labor organization or on a particular trade craft or class rather into employees in another labor organization or in another trade craft or class.
Now, Section 10 (k) of the Act provides that whenever it is charged that any person has engaged in an unfair labor practice within the meaning of Section 8 (b) (4) (D), the board instead of immediately proceeding in the regular complaint of unfair labor practice fashion that it does with other unfair labor practice charges hold that unfair 8 (b) (4) (D) charge in abeyance because 10 (k) states that the board is empowered and directed to hear and determine to dispute out of which such unfair labor practice shall have arisen unless 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.
Now, a board sense 10 (k) was added to the Act in 1947.
As interpreted the phrase, “A party to such dispute to include not only the competing Unions, but also the employer who made the work assignment.”
Hence, unless all three parties have agreed upon methods for the voluntary adjustment under the dispute, the board itself must determine the dispute under Section 10 (k).
The Court below via a divided vote held that the parties to such dispute means only the competing unions and thus, since they but not the employers were bound by a voluntary method of the adjustment.
The board had no power to re-determine the dispute under Section 10 (k) and correctness of this interpretation is the issue that we have here.
Now, the underlying facts are briefly these.
A Plasters’ Union picketed two different jobs in furtherance of its demand that the work of applying a code of Portland cement mortar to the walls, upon which tile was to be thereafter installed should be assigned to employees represented by the Plasters rather than to those represented by the Tile Setters Union.
The first job involved, in addition to our library at University of Houston.
The general contractor of Southwestern had sub-contracted the, a Tile job to Texas State, a tile contractor employing the members of the Tile Setters Union and it sub-contracted the job of installing the tile.
The Plasters claimed the mortar work as theirs and when that claim was rejected by Texas State, the sub-contractor, they submitted the dispute to the National Joint Board for the Settlement of Jurisdictional Disputes, a tribunal to establish by the Building Trades Department of the AFL-CIO and certain employer groups.
Both Unions by virtue of their affiliation with Internationals who are members of the Building Trades Department are bound by decisions of the Joint Board.
But neither Texas State; the sub-contractor, nor the Association, to which it belonged, had agreed to be bound by the decisions of the Joint Board.
The Joint Board awarded the disputed work to the Plasters finding that the matter was governed by a 1917 agreement, between the two International Unions and a 1924 decision interpreting that agreement.
Parenthetically, I might point out at this point that the whole dispute arose because of the development of a new bonding agents that were not discovered until 1950, but nonetheless the Joint Board awarded this work to the Plasters based on the 1917 agreement.
When Texas State refused to change its work assignment in accordance with the Joint Board award, Plasters commenced picketing at the job site to force such a change.
Southwestern the general contractor filed charges with the board alleging that the picketing violated Section 8 (b) (4) (D) for the Act.
The second job involved the re-modeling of the Rainbow Bakery.
There Martini, a tile contractor under contract with the Tile Setters Union was assigned the job of a installing the tiles.
The Plasters are claiming the work, began picketing.
Again Martini was not bound by the procedures of the Joint Board and accordingly, it filed unfair labor practice charges with the board.
The Board's Regional Director finding a reasonable cause to believe that the charges had merit and finding that neither of the employers here at Texas State or Martini were bound by a voluntary method of adjustment proceeded to a 10 (k) hearing, at which all the competing Unions and the employers involved presented argument and evidence.
It was a seven-day hearing in support of their respective positions.
The board on a basis of the records thus developed and in conformity with this Court’s decision in CBS which directed the board to consider all relevant factors and determining the jurisdictional disputes, so the board considered the collective bargaining agreements between the parties, employer area and industry practice, relevant skills and efficiency of operation, agreements between the two Unions and the Joint Board award on the basis of -- after considering all of these factors and the evidence adduced, the board concluded that employees represented by the Tile Setters rather than those represented by the Plasters were entitled for the work in dispute.
In short, it came out differently than the Joint Board had, which had awarded the work to the Plasters.