Petition — International Ass'n of Bridge, Structural & Ornamental Iron Workers, AFL-CIO, Local 433 v. National Labor Relations Board

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Iu the Supreme Court

OF THE

United Staten

OcToBER TERM, 1976

No. 7671779

INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL

AND ORNAMENTAL IRON Workers, AFL-CIO,

Loca. 433,

Petitioner,

VS.

NaTIONAL Labor RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

Van Boura, ALLEN, WEINBERG & Rocer,

Victor J. VAN Bovura,

Davip A. ROSENFELD,

45 Polk Street,

San Francisco, California 94/02,

Telephone: (415) 864-4000,

Attorneys for Petitioners.

PERNAU - WALSH PRINTING CO. - 562 MISSION STREET - SAN FRANCISCO, CA 94105

5°

Subject Index

Page

ec as od eebeeweaee ane 1

I es Coe ek le Cad n enue thbeke eee we 2

I sa ieieae dees deeasene 2

I 6 hes ioctlee duce shendés Oe tadsccenacave 2

es ee ie ckisenuces s abukoae 4

Reasons why this writ should be granted ................. 7

ee el edt ee oe ns oan owen dues 13

Table of Auchorities Cited

Cases Pages

Bricklayers, Masons & Plasterers Int Union of Am v.

N.L.R.B., 475 F.2d 1316 (D.C. Cir. 1973) ............ 12

Glaziers, Glass Workers, etc., Local 636 and Plaza Glass Co.

and International Association of Bridge, Structural &

Ornamental Iron Workers, Local 433, 214 N.L.R.B. 912

DPE -dhaemegaboseeo Uae RGdaReheeUiTs senses edeedsde 6, 8

International Association of Bridge, Structural and Orna-

mental Ironworkers, AFL-CIO, Local 433 and Plaza Glass

Company and Glaziers, Glassworkers and Glass Ware-

house Workers Union, Local No. 636, affiliated with the

International Brotherhood of Painters and Allied Trades,

AFL-CIO, Case 31—CD—129, 218 N.L.R.B. 848 ........ 8

International Telephone & Telegraph Corp. v. Local 1134,

Se A ED ed cdevsccccedecestedes 9,10, 11

International Typographical Union, 125 N.L.R.B. 759 (1959) 10

National Labor Relations Bd. v. Plasterers’ Local Union

eh, es Se I EE ED. KceWhe be ceedceessccececs 9,12

United States v. Utah Construction & Mining Co., 384 U.S.

i MED *5 o Ub pu plewds 69% on deedeede thesenesciedeess 11

ii TABLE OF AUTHORITIES CITED

Regulations

29 C.F.R.: Pages

DT isk a chid punched eed bola kewe Cas wre ee ob cedlaus 5,11

IIE *: -iubirtans ndash inna Ry reas Ue edie we dee 11

te ca i es ire 6 Re a ee 11

DEE Sanudue ded oon sls toad wae dbusibabshirevades 11

I ie as ia Og der ae eg eR 5,11

EL + Vibig esha Gh adblueeadseaaes seus ts bs ties 6

EE Ipktriih: 60's alee Vecticlitie mii tied Saati ak re 10

Statutes

Administrative Procedure Act, 5 U.S.C. §§ 500 et seq. ...5, 10,12

ae Gea nadad sh cademadae ed udddeipedid iuluc sows ceteckd 10, 12

National Labor Relations Act:

§ 8(b)(4)(D) (29 U.S.C. § 158(b)(4)(D)) ..........

chemnegseseeehsseudeenanad sa diesesé 2, 3, 4, 6, 7, 10, 11, 12

Saeee Ce MRD BED cbs ccc ccccvensacucecds 11,12

§10(k) (29 U.S.C. §160(k)) ....... 2, 4, 5, 7, 9, 10, 11, 12, 13

28 U.S.C.:

DMEEEE bahebnsdeedader eecknbdnsddsscnnaccdcesess 2

In the Supreme Court

OF THE

Rnited States

OcTOBER TERM, 1976

No.

INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL

AND ORNAMENTAL [Ron Workers, AFL-CIO,

Loca 433,

Petitioner,

Vs.

NaTIONAL LaBoR RELATIONS Boarp,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

International Association of Bridge, Structural and

Ornamental Iron Workers, AFL-CIO, Local 433, re-

spectfully prays that a Writ of Certiorari issue to

review the judgment and opinion of the United States

Court of Appeals for the Ninth Circuit.

OPINIONS AND ORDERS BELOW

The opinion of the Court. of Appeals is reported

at 549 F.. 2d 634 and appears as Appendix A. This

opinion enforeed a “Decision and Order” of the

National Labor Relations Board which is reported at

218 N.L.R.B. 848 (1975) and appears as Appendix

B. This ‘‘Decision and Order” followed a ‘‘ Decision

and Determination of Dispute” which is reported at

214 N.L.R.B. 912 (1974) and appears as Appendix C.

JURISDICTION

The opmion of the eourt was filed on January 17,

1977, A timely petition for rehearing was denied on

February 23, 1977. The judgment of the court was

entered on March 14, 1977. Jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

May the National Labor Relations Board rely upon

the proceedings held in a jurisdictional disputes hear-

ing under 29 U.S.C. §160(k) for a finding of the

commussion of the elements of an unfair labor practice

under 29 U.S.C. § 158(b) (4)(D) without violating the

Administrative Procedure Act?

STATUTES INVOLVED

29 U.S.C. § 160(k) provides:

Whenever it is charged that any person has

engaged in an unfair labor practice within the

meaning of paragraph (4)(D) of seetion 158(b)

of this title, the Board is empowered and di-

rected 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.S.C. § 158(b) (4) (D) provides:

It shall be an unfair labor practice for a labor

organization or its agents—

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 com-

merce or in an industry affecting commerce,

where in either case an object thereof is—

forcing or requiring any person to cease

using, selling, handling, transporting, or other-

wise dealing in the products of any other

producer, processor, or manufacturer, or to

cease doing business with any other person, or

forcing or requiring any other employer to

recognize or bargain with a labor organization

as the representative of his employees unless

such labor organization has been certified as

the representative of such employees under the

provisions of section 159 of this title: Provided,

That nothing contained in this clause (B)

shall be construed to make unlawful, where not

otherwise unlawful, any primary strike or

primary picketing;

STATEMENT OF THE CASE

This matter arose out of a jurisdictional dispute

between petitioner, [ron Workers Local 433, and

another labor organization, Glaziers & Glass Workers

Union, Local 636, with respect to the fabricating and

installation of metal framing pieces and glass panes

in the construction of window-wall units on certain

construction projects in Orange County, California.

A charge was filed by Plaza Glass Co., the sub-

contractor, for the window-wall units, with the Na-

tional Labor Relations Board on March 14, 1974,

alleging that Local 433 had violated 29 U.S.C. § 158

(b)(4)(D). After brief investigation, the Regional

Director of Region 31 of the National Labor Relations

Board determined that there was reasonable cause to

believe that a jurisdictional dispute existed between

Local 433 and Local 636. Pursuant to the statutory

scheme, a hearing was noticed under 29 U.S.C.

§160(k) for the purpose of determining to which

union the work in question would be assigned.

The hearing envisioned under § 160(k) was held

on various days in the middle of 1974, and was pre-

sided over by a hearing officer appointed by the Na-

tional Labor Relations Board from Region 31 in Los

Angeles. 29 C.F.R. § 102.90.

At the hearing, Local 433 filed a motion to dismiss

on the ground that the dispute in question had been

resolved through “an agreed upon method for the

voluntary adjustment of the dispute.” 29 U.S.C.

§ 160(k). In essence, Local 433 asserted that all of

the parties to the dispute had agreed to permit this

dispute to be resolved by the Impartial Jurisdictional

Disputes Board of the Construction Industry estab-

lished by the Building & Construction Trades Council

of the AFL-CIO. Local 433’s defense was premised

upon the fact that this Board had previously awarded

the particular work in dispute to the Iron Workers,

and not to the Glaziers, represented by Local 636.

The hearing officer rejected the defense, denied the

motion to dismiss, and proceeded with the merits of

the hearing as to whether the work in question should

be awarded to the Iron Workers or the Glaziers.

The hearing was conducted, not by an Administra-

tive Law Judge, but rather, by a hearing officer, and

was merely an investigative proceeding. 29 C.F.R.

§ 101.34. The hearing was not conducted by either

the rules of evidence or the Administrative Procedure

Act. 5 U.S.C. § 500 et seg. The parties, the various

employers and the unions involved, were permitted

to “make a record,” which was closed by the hearing

officer, and the transcript and exhibits were then

forwarded to the National Labor Relations Board in

Washington for review and decision. The hearing

officer made no recommendations, nor any credibility

findings.

After transferal of the record to the Board, it

“determined” the dispute in question and awarded

the window-wall work not to the Lron Workers, but

rather, to the Glaziers, contrary to the previous de-

cision of the Impartial Jurisdictional Disputes Board.

See “Decision and Determination of Dispute”,

Glaziers, Glass Workers, etc., Local 636 and Plaza

Glass Co. and International Association of Bridge,

Structural & Ornamental Iron Workers, Local 433,

214 N.L.R.B. 912 (1974).

Local 433 did not acquiesce in the decision of the

Board that the window-wall work should be awarded

to the Glaziers. For that reason, an unfair labor

practice complaint was issued alleging that Local 433

had violated and was continuing to violate 29 U.S.C.

§ 158(b) (4)(D) by threatening picketing in support

of a jurisdictional dispute. 29 C.F.R. § 102.91. With-

out a formal hearing as to the issues raised, the Board

granted a motion by its General Counsel for summary

judgment. The Board’s subsequent decision finding

Local 433 to have violated the National Labor Rela-

tions Act was based solely upon the motion for sum-

mary judgment, and not upon any evidence taken

before an Administrative Law Judge under the stric-

tures of the Administrative Procedure Act. Indeed,

the subsequent decision of the National Labor Rela-

tions Board finding a violation of the federal law was

based upon the application of res judicata to the

“Decision and Determination of Dispute” which arose

out of the proceedings under § 10(k) of the National

Labor Relations Act.

The question which is presented to this Court is

whether the National Labor Relations Board, in pro-

ceedings under § 8(b) (4) (D) of the Act, can rely upon

the finding from proceedings held under § 10(k) of

the Act, that no voluntary agreed upon method for

resolution of the dispute existed when the proceedings

under § 10(k) of the Act were purely investigatory,

and not governed by the due process requirements

of the Administrative Procedure Act.

REASONS WHY THIS WRIT SHOULD BE GRANTED

This case involves an issue which is fundamental to

the administration of the National Labor Relations

Act and the resolution of jurisdictional disputes.

The fundamental defense raised by the Iron Work-

ers was that all parties—the Iron Workers, the Gla-

ziers, and the employers involved—had agreed upon a

voluntary method of resolution of the jurisdictional

dispute through the Impartial Jurisdictional Disputes

Board of the Construction Industry, which had pre-

viously awarded the work in question to the Iron

Workers. Local 433 was deprived of the right to an

adjudication of the merits of its defense in the pro-

ceedings brought under § 8(b) (4) (D).

The Board’s “Decision and Determination of Dis-

pute” found that no voluntary method of dispute res-

olution existed.’ 214 N.L.R.B. at 914. Relying upon

this “Decision”, the Board subsequently found that no

voluntary method of dispute resolution existed by the

following process:

“Review of the record in the 10(k) proceeding

indicates that these issues [with respect to the

dispute resolution] were raised and litigated

therein. As noted above, Respondent [Local 433]

appeared in that proceeding and was provided

with a full opportunity to litigate these issues.

It offers no evidence herein that was not pre-

sented in that proceeding. It is settled that is-

sues raised and litigated in a 10(k) proceeding

may not be relitigsted in a subsequent unfair

labor practice proceeding, alleging violations of

Section 8(b)(4)(D) which are based in part on

factual determination made in a 10(k) proceed-

ing. Furthermore, it is established that a hearing

de novo is not required in the unfair labor prac-

tice case on issues litigated in a previous 10(k)

proceeding, especially where as here respondent

offers nothing not previously considered therein.”

218 N.L.R.B. at 849. (fn. omitted).

It is apparent that the Board’s decision in the unfair

labor practice case was based upon an application of

the doctrine of res judicata, on the ground that the

The general contractor and the two unions involved were

bound to the Impartial Jurisdictional Disputes Board. The sub-

stantive issue was whether Plaza Glass, the subcontractor, was

also so bound.

factual issues had been “litigated” in the § 10(k) pro-

ceeding, and could therefore not be properly “reliti-

gated.”

The procedure utilized by the Board violates the

Administrative Procedure Act and this Court’s inter-

pretation of Section 10(k) of the Act in International

Telephone & Telegraph Corp. v. Local 1134, 1.B.E.W.,

419 U.S. 428 (1975); and National Labor Relations

Bd. v. Plasterers’ Local Union No. 79, 404 U.S. 116

(1971). In the Plasterers’ case, this Court stated with

respect to the § 10(k) proceeding:

“The §10(k) determination is not binding as such

even on the striking union. If that union contin-

ues to picket despite an adverse §10(k) decision,

the Board must prove the union guilty of a §8(b)

(4)(D) violation before a cease-and-desist order

ean 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) de-

termination. International Typographical Union,

125 N.L.R.B. 759, 761 (1959). Both parties may

put in new evidence at the §8(b)(4)(D) stage,

although often, as in the present cases, the parties

agree to stipulate the record of the §10(k) hear-

ing 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 a

§8¢h)(4)(D) violation has occurred, while in the

§8(,(4)(D) proceeding itself the Board must

find by a preponderance of the evidence that the

picketing union has violated §8(b)(4)(D). In-

ternational Typographical Union, supra, at 761

n.5 (1959).” 404 U.S. at 122, n. 10.

It is clear that the § 10(k) “Decision and Determina-

tion” constitutes nothing more than “evidence” to be

utilized along with other evidence in the proceed-

ings alleging the actual commisison of the unfair labor

practice under § 8(b) (4) (D).

This is consistent with this Court’s decision in

the 1.B.E.W. case, wherein this Court held that it

was not improper for a National Labor Relations

Board attorney to act both as the hearing officer in

the § 10(k) proceeding and as Counsel for the Gen-

eral Counsel in the § 8(b)(4)(D) proceeding, based

upon the principle that the § 10(k) proceeding “need

not be conducted pursuant to Section 5 of the Ad-

ministrative Procedure Act...” 419 U.S. at 448.

The two fundamental reasons why the “Decision and

Determination” under § 10(k) may not act as res ju-

dicata in the § 8(b)(4)(D) proceeding are absolutely

clear. First, the Board’s “Decision and Determina-

tion” in the § 10(k) hearing is based upon a “reason-

able cause” standard, while the burden of proof in the

§ 8(b)(4)(D) proceeding is a preponderance of the

evidence standard. See International Typographical

Union, 125 N.L.R.B. 759, 761, n.5 (1959). Without

the same standard of proof, the proceedings in one

hearing may not constitute res judicata in the second.

Secondly, the § 10(k) “Decision and Determination”

is not based upon an adjudication within the meaning

of the Administrative Procedure Act. International

*The Board’s rules do not permit application of res judicata.

Rather, the 10(k) record “become[s] a part of the record in

[the] unfair labor practice proceeding .. .’”’ 29 C.F.R. 102.92.

Telephone and Telegraph Corporation v. Local 134

I.B.E.W., supra, 419 U.S. at 446-448. Since the “De-

cision and Determination” is not an adjudication, it

cannot be the basis for an assertion of res judicata.

United States v. Utah Construction & Mining Co.,

384 U.S. 294, 421-22 (1966).

In enforcing the decision of the Board, the Court

of Appeals rejected petitioner’s argument on the

ground that the Board did not apply a principle of

collateral estoppel, but rather, “reexamined the record

and made independent findings with regard to the

commission :.. unfair labor practices by Respondent.”

App. 8. That is, the Court of Appeals asserted

that the Board could reexamine the cold record made

in the §10(k) investigation in considering the facts

upon which the motion for summary judgment was

made in the § 8(b)(4)(D) proceeding. The fallacy of

such a procedure is self-evident: the record gathered

in the §10(k) proceeding was not litigation and was

merely an investigatory proceeding. It is not governed

by the Administrative Procedure Act. 29 C.F.R.

§ 101.34.° For example, the Board could not make

8Under Board rules, the 10(k) hearing is governed by the rules

applicable to representation matters. 29 C.F.R. §102.90. The rules

of evidence are not controlling, 29 C.F.R. §102.66, and the hear-

ing officer may be substituted at anytime. 29 C.F.R. §102.64.

The hearing is nonadversary in nature ‘‘and the primary interest

of the hearing officer is to insure that the record contains a full

statement of the pertinent facts as may be necessary for a

determination of the issues by the Board.” 29 C.F.R. §101.34.

There is a distinct difference between this type of in-

vestigatory hearing and those hearings conducted under the

authority of 29 U.S.C. §160(¢) in which a party is charged with

the commission of an unfair labor practice. These heari are

strictly governed by the Administrative Procedure Act. 29 C.F.R.

§102.34-102.45.

findings of credibility based upon the cold record of

the § 10(k) proceeding where such credibility findings

are necessarily made by the Administrative Law

Judge who hears the testimony and observes the wit-

nesses in the unfair labor practice proceeding. This

procedure plainly circumvents the hearing process

mandated by the Administrative Procedure Act.

There is, therefore, a fundamental procedural ques-

tion herein, and that is whether the Board can prop-

erly review the stenographic record made in the in-

vestigatory hearing and use that record as the basis

for an independent finding of the commission of an

unfair labor practice, without the hearing required by

§ 10(¢) of the National Labor Relations Act and §5

of the Administrative Procedure Act.‘ Petitioner was

denied the fundamental right to have the issue of the

existence of a voluntary method for the resolution of

disputes litigated under the due process requirements

of the Administrative Procedure Act.

‘The Court of Appeals for the District of Columbia Cireuit

has made the same error in Bricklayers, Masons & Plasterers

Int’l Union of Am v. N.L.R.B., 475 F.2d 1316 (D.C. Cir. 1973).

In that ease, the court concluded that a union could not litigate

matters in the 8(b)(4)(D) proceeding which had been considered

in the 10(k) proceeding, because that ‘‘would not have been

consistent with the plan of the statute.’’ 7d. at 1322. This deci-

sion is plainly inconsistent with this Court’s interpretation of

the relationship between the 10(k) proceeding and the 8(b) (4)

(D) proceeding in N.L.R.B. v. Plasterers Union, supra. The plan

of the National Labor Relations Act, although envisioning a

rapid determination under the 10 (k) hearing, did not envision

a denial of the rights of the Administrative Procedure Act in

‘an that the union persists in its violation of Section 8(b)

CONCLUSION

The fundamental issue raised by this petition is one

of due process, as guaranteed by the Administrative

Procedure Act. The Board’s process in this case has

violated this Court’s previous mandate in § 10(k) pro-

ceedings and the requirements of the Administrative

Procedure Act.

For all the above reasons, this Petition for Writ of

Certiorari should be granted.

Dated, San Francisco, California,

June 9, 1977.

Victor J. VAN Bowra,

Davip A. ROSENFELD,

Van BourG, ALLEN, WEINBERG & ROGER,

Attorneys for Petitioners.

(Appendices Follow)

APPENDICES

Appendix A

United States Court of Appeals

for the Ninth Circuit

No. 75-3261

National Labor Relations Board, 7

| Petitioner,

vs.

International Association of Bridge, Struc- ‘

tural and Ornamental Ironworkers, AF'L-

CIO, Local 433,

Respondent. :

On Application for Enforcement of an Order

of the National Labor Relations Board

OPINION

Before: Duntway, Carter, and CHoy, Circuit

Judges.

Carter, Circuit Judge:

This case is before the court on application of the

National Labor Relations Board for enforcement of

an order issued June 25, 1975, against the Inter-

national Association of Bridge, Structural and Or-

namental Ironworkers, AFL-CIO, Local 433 (Re-

spondent). We enforce the order.

Facts

In 1973, Plaza Glass Company was hired to fabri-

cate and install doors and windows in an apartment

project in Marina del Rey, California. For the job,

Plaza Glass used its own employees, who were mem-

bers of the Glaziers, Glassworkers and Glass Ware-

house Workers Union, Local 636 (Glaziers). Plaza

Glass is a party to a collective bargaining agreement

with the Glaziers by virtue of its membership in the

Southern California Glass Management Association.

In January 1974, a representative of Respondent

complained to Plaza Glass that the work being done

should go to its members. Several threats were made

against Plaza Glass by representatives of Respondent

to slow down or stop the project unless its members

were hired. The Glaziers took the position that re-

assignment of the work would be violative of the

contract it had with Plaza Glass and might be

grounds for picketing the job site.

Plaza Glass filed unfair labor practice charges

against both unions. Believing that a jurisdictional

dispute existed between the two unions, the Regional

Director of the NLRB ordered a hearing to be held,

pursuant to § 10(k) of the N.L.R.A.’ The hearing was

concucted in May, June and July 1974. The sole issue

advanced by the Respondent at the §10(k) proceed-

ing was whether the Board lacked jurisdiction be-

Section 10(k) (29 U.S.C. § 160(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 em-

powered and directed to hear and determine the dispute out

cause the parties had voluntarily agreed to be bound

by the decision of the Impartial Jurisdictional Dis-

pute Board (the “Dispute Board”). A decision was

issued by that Board on November 12, 1974. The

Board found that there was reasonable cause to be-

lieve that both unions had violated § 8(b)(4)(D) of

the N.L.R.A.,’? and that all of the parties involved

had not agreed upon a method of voluntarily settling

the dispute.

The Board awarded the work to the Glaziers. Re-

spondent was given 10 days in which to notify the

Regional Director of its compliance with the § 10(k)

decision. Respondent did not answer, and a Board

complaint charging unfair labor practices followed.

After Respondent filed its answer to this complaint,

General Counse! for the Board filed a motion to

strike the denials in the answer, together with a mo-

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 satis-

factory 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 dis-

pute, such charge shall be dismissed.”

2Section 8(b)(4)(D) (29 U.S.C. § 158(b) (4) (D)), in relevant

part, makes it an unfair labor practice for a labor organization or

its agents “to threaten, coerce, or restrain any person engaged in

commerce or in an industry affecting commerce, where... an

object thereof is —

(D) foreing or requiring any employer to assign | par-

ticular 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,

eraft, or class, unless such employer is failing to conform

to an order or certification of the Board determining the

bargaining representative for employees performing such

work: ...”

tion for summary judgment. The Board granted the

motion, finding that all the issues raised by Respond-

ent’s denials were resolved either in the § 10(k) pro-

ceeding or by the General Counsel’s evidence in

support of his motions. Respondent had not presented

any new evidence of its own.

Prior to the §10(k) hearing, the two unions at-

tempted to resolve their jurisdictional dispute by

means of arbitration. In March 1974, the Dispute

Board awarded the work to Respondent, on the basis

of trade practice. In its §10(k) deliberations, the

Board found that Plaza Glass had not agreed to the

settlement procedure used by the unions, that Plaza

Glass was not bound by the decision of the Dispute

Board, and that the NLRB therefore had jurisdic-

tion over the dispute.

Reliance on § 10(k) Proceedings

Respondent objects to the use of findings from the

§ 10(k) proceeding as a basis for the Board’s finding

of an unfair labor practice under § 8(b)(4)(D). It

argues that §554 of the Administrative Procedure

Act (APA) was violated because no hearing was held

before an Administrative Law Judge prior to the

Board’s finding. Section 554 requires an “opportunity

for an agency hearing” in all cases involving an “ad-

judication” by the agency. Rather than for the Board

to rely on its prior §10(k) proceeding, Respondent

wants a formal hearing under the APA to decide all

matters pertaining to the unfair labor practice

charged.

In International Telephone & Telegraph Corp. v.

Local 134, International Brotherhood of Electrical

Workers, AFL-CIO, 419 U.S. 428 (1975), the Su-

preme Court held that the APA does not apply to

§ 10(k) proceedings. However, findings made in such

a proceeding can be relied upon as evidence that an

unfair labor practice has occurred, even in a pro-

ceeding governed by the APA. There is no rule re

quiring that the APA govern the gathering of all

evidence, nor could there be.

In Bricklayers, Masons & Plasterers International

Union of America v. NLRB, 475 F.2d 1316 (D.C. Cir.

1973), the D.C. Circuit was faced with a case very

similar to this one. That court ruled against the union

complaining of the fact that summary judgment had

cut off its opportunity for a hearing. The court said:

‘‘When, as at present, the section 10(k) determi-

nation does not end the matter and an unfair

labor practice complaint issues, the proceedings

become adjudicatory. Should a factual issue be

involved as to the unfair labor practice, the usual

intermediate decision of the Trial Examiner

would be required under the A.P.A., section

554(c) (2). Here, however, the prohibited conduct

constituting the unfair labor practice was not

denied. The only factual dispute was whether

there had been an agreed method of settlement.

This had been resolved by the Board in the sec-

tion 10(k) proceedings. To relitigate it, as the

Unions sought, would not have been consistent

with the plan of the statute. Nor does that plan

require the Board, after the unfair labor prac-

tice complaint has issued, to require the evidence

upon which it has rendered its section 10(k)

decision to be reconsidered by a Trial Examiner

who would then recommend a decision.” Jd. at

1322.

We find this reasoning persuasive here. When no

new evidence on an issue is presented, reliance on the

findings on that issue in the §10(k) proceeding is

proper.

The Fifth Circuit has reached a similar conclusion.

In NLRB v. International Longshoremen’s <Ass’n,

Local 1576, 409 F.2d 709 (5 Cir. 1969), the trial ex-

aminer at the §8(b)(4)(D) hearing relied entirely

on the record from the § 10(k) hearing, since no new

evidence was introduced. Indeed, the trial examiner

felt bound to follow the Board’s § 10(k) decision as

controlling. The Board then adopted the examiner’s

findings and conclusions. The court of appeals en-

forced the Board’s order and rejected the union’s con-

tention that the APA had been violated by the fact

that the trial examiner felt bound by the prior

§ 10(k) findings. The court found the case analogous

to those in the representation context, in which it is

well-settled that ‘‘the Board is not required to reliti-

gate a representation issue in an unfair practice

proceeding absent additional evidence which is not

merely cumulative. Pittsburgh Plate Glass Co, v.

NIRB, 1941, 313 U.S. 146, 158, 161-162 .. . .” 409

F.2d at 710. See also NLRB v. W. 8S. Hatch Co.,

474 F.2d 558, 562 (9 Cir. 1973).

Respondent suggests that Bricklayers, supra, was

wrongly decided, and that the NLRB should not be

able to escape the requirements of the APA by basing

its finding of an unfair labor practice on the record

of the §10(k) proceeding. However, the trend of

modern cases favors not relitigating matters already

resolved in a prior setting. As this court said in 1971:

“It is settled law that when no fact question is

involved or the facts are agreed, a plenary, ad-

versary administrative proceeding involving evi-

dence, cross-examination of witnesses, etc., is not

obligatory—even though a pertinent statute pre-

scribes a hearing. In such situations, the ration-

ale is that Congress does not intend administra-

tive agencies to perform meaningless tasks” (cita-

tions omitted).

United States v. Consolidated Mines & Smelting Co.,

Ltd., 455 F.2d 432, 453 (9 Cir. 1971). See also NLRB

v. Mar Salle, Inc., 425 F.2d 566, 571-73 (D.C. Cir.

1970). Accordingly, we hold that the findings of a

§ 10(k) proceeding may be used as evidence in a sub-

sequent hearing, subject to refutation. When these

findings are not contradicted, as in the case at bar,

they may be the sole basis for a subsequent finding.

Respondent also argues that the different standard

of proof in the §10(k) proceeding prevents use of

its findings. At the §10(k) proceeding the Board

‘‘need only find that there is reasonable cause to be-

lieve that a § 8(b) (4) (D) violation has occurred”; in

the §8(b)(4)(D) violation hearing, the standard is

‘‘a preponderance of the evidence.” NLRB v. Plaster-

ers’ Union, 404 U.S. 116, 122, n.10 (1971).

But here the Board did not simply rely on its

previous adjudication at the § 10(k) stage, but rather

re-examined the record and made independent find-

ings with regard to the commission of unfair labor

practices by Respondent. The same evidence was used

to resolve the jurisdictional dispute at the § 10(k)

hearing and to support the Board’s finding of a viola-

tion of § 8(b)(4)(D). However, it is apparent from

the language of the Board’s decision and order that

the Board’s prior findings were not the sole basis for

the subsequent decision. In its decision, the Board

stated :

‘This undisputed evidence, which as noted above

is neither supplemented nor controverted in this

proceeding, likewise establishes, and we find, that

Respondent had engaged in conduct with an ob-

ject proscribed by § 8(b)(4)(D) of the Act, in

violation thereof.” (T.R. at 132).

So while the evidence presented at the §10(k) pro-

ceeding was the sole basis for the Board’s subsequent

decision regarding the unfair labor practice, it seems

clear that the preponderence standard was applied

and met. Under these circumstances, we believe that

reliance upon the findings of fact from a § 10(k) pro-

ceeding as evidence to support a later finding of a

§ 8(b) (4) (D) violation is proper.

Summary Judgment

Respondent argues that summary judgment should

not have been granted because factual issues remained

undecided. This contention actually goes to the pro-

priety of granting the motion to strike Respondent’s

answers, since, once these were removed, no factual

issues remained. So if no factual issues were raised by

Respondent’s answer, summary judgment was prop-

erly granted.

In its answer, Respondent put in issue, inter alia,

whether a subcontracting agreement existed between

Plaza Glass and the main contractor, whether Plaza

Glass was an employer covered by the N.L.R.A., and

whether any Ironworker representatives had threat-

ened Plaza Glass. However, in its opposition to the

motion for summary judgment, Respondent simply

argued that a hearing was necessary because the

issues involved could not be raised in a court or in a

§10(k) hearing. Respondent presented no affidavits

or other evidence in support of its opposition to the

summary judgment motion, nor did it indicate that

there existed any new evidence to controvert the evi-

dence presented at the §10(k) hearing. As a result,

the Board had only the record of the §10(k) pro-

ceeding, and the evidence offered by its General Coun-

sel in support of his motions, to use in considering

the disposition of those motions.

An independent review of the record in the § 10(k)

proceeding leads to the inescapable conclusion that

all issues relevant to the unfair labor practice issue

were resolved by the evidence presented at that pro-

ceeding or by the evidence presented in support of

the motion for summary judgment. Respondent denied

having failed to notify the Regional Director of any

intention to comply with the § 10(k) order, but pre-

sented no affidavits or other evidence to counter that

submitted to the Board by its General Counsel. The

Board could reasonably infer from this failure to

notify the Regional Director that the union was still

demanding the work in violation of §8(b)(4)(D).

Since no evidence was presented by respondent either

in the §10(k) proceeding or in the hearing on the

motions, summary judgment was proper.

The language of § 10(k) also supports this conclu-

sion. The last sentence of that section provides that

“fujpon compliance by the parties to the dispute

with the decision of the Board . . . such charge shall

be dismissed.” 29 U.S.C. § 160(k). The implication,

then, is that if there is no compliance, the charge is

not dismissed. In order to comply, a party is required

to notify the Board of its intent to comply. Respond-

ent did not do so. Therefore, the Board was justified

in acting on the prior charge.

Public policy clearly favors the granting of sum-

mary judgment here, where no relevant factual issues

exist. As pointed out by the D.C. Cireuit, it would

not be “consistent with the plan of the statute” for

Respondent to relitigate issues that had previously

been resolved. See Bricklayers, supra, at 1322. In a

case involving representation issues, the same court

discussed at length the use of summary judgment

when all factual issues had been resolved in a prior

hearing:

“While it would not be proper for the Board to

grant summary judgment in a case wherein the

respondent had not had ample opportunity to lit-

igate fully all relevant issues, it would be irre-

sponsible for the Board to waste costly admini-

strative time needlessly when all of the factual

issues have previously been resolved. Occasion-

ally the Board may make a mistake in its deter-

mination that all the issues are clearly drawn, as

it has done in the cases cited by respondent.

When that occurs, the reviewing court will rec-

ognize this fact immediately and send the case

back for an evidentiary hearing. Thus the inter-

ests of due process are protected through the

vehicle of judicial review” (footnotes omitted).

NRLB v. Mar Salle, Inc., swpra, at 573. See also

NLRB wv. W. 8. Hatch Co., 474 F.2d 558, 562 (9 Cir.

1973). Thus, the use of summary judgment as proper,

and should not be disturbed by this court.

Arbitration Agreement

Respondent lastly contests the Board’s finding that

Plaza Glass was not bound by the findings of the

Dispute Board. Plaza Glass formerly had entered

into an agreement to submit matters to the National

Joint Board for the Settlement of Jurisdictional Dis-

putes. This board was dissolved in 1973 and replaced

with the Dispute Board, which awarded the work

to Respondent. The NLRB found that Plaza Glass

had not agreed to be bound by a decision of the

Dispute Board.

The NLRB’s findings of fact will be upheld if sup-

ported by “substantial evidence” and its legal con-

clusions affirmed unless ‘‘arbitrary and capricious.”

NLRB v. International Longshoreman’s & Ware-

housemen’s Union, Local 50, 504 F.2d 1209, 1214 (9

Cir. 1974), cert denied, 420 U.S. 973 (1975). The

Board found that Plaza Glass was not bound by vir-

tue of its subcontracting agreement because that

agreement referred to the “National Disputes Board,”

which went out of existence on May 31, 1973. The

Board further found that Plaza Glass had not ex-

pressly consented to be bound by the decision of the

Dispute Board and had not participated in the sub-

mission of the dispute to that body.

The Board concluded on the basis of its prior de-

cision in Bricklayers, Masons and Plasterers’ Inter-

national Union, Local No. 1 (Lembke Construction

Co.), 194 N.L.R.B. 649, 650-51 (1971) that Plaza

Glass’ obligation to be bound by the National Board

terminated when the Dispute Board replaced the

National Board. The Board’s reasoning in Lembke

with regard to the replacement of one “National Joint

Board” with a new ‘‘National Joint Board” seems

equally compelling here:

‘‘The Board has consistently interpreted Sec-

tion 10(k) to mean that the employer making

the work assignment, as well as the rival unions

claiming the work, comprise the ‘parties to such

dispute,’ and that all must approve and enter into

a voluntary adjustment procedure in order to

preclude a hearing and determination pursuant

to that section, In the instant case, the parties’

contractual commitment to comply with National

Joint Board determinations clearly had reference

to a specific existing National Joint Board. There

is no evidence to suggest that the parties in-

tended by their 1969 contracts to be bound by

any other than the then existing National Joint

Board.

“Nor is there any principle of contract law

by which the parties automatically became bound

to the new National Joint Board, as if by op-

eration of law, when that entity came into being

during the parties’ contract term. Although the

new entity was designated by the same name,

‘National Joint Board,’ it is clear that neither

the Employer nor ABC had in mind any body

not then in existence when they agreed to be

bound by decisions of the existing ‘National Joint

Board.’ The mere fact, therefore, that a new

‘National Joint Board’ was created cannot es-

tablish that the Employer was bound by its de-

cisions. To hold otherwise would be to find that,

as far as the Emplouyer’s contractual obligations

are concerned, no legal distinction exists between

the original National Joint Board and the re-

constituted National Joint Board and that Na-

tional Joint Boards are, in effect, interchangeable.

Accordingly, when the original National Joint

Board expired on September 30, 1969, the parties’

contractual o’ 'igation thereto also lapsed” (foot-

notes omitted). Zd. at 651.

See also Restatement of Contracts §§ 461, 463 (1932).

Moreover, the procedures followed by the two boards

are different, and Respondent’s view would force

Plaza Glass to accept an entirely different arbitration

mechanism than the one it agreed to.

Respondent also argues that Plaza Glass partici-

pated in the proceedings before the Dispute Board

by supplying the Glaziers with supportive material,

including blueprints, and that Plaza Glass should

therefore be bound. However, Plaza Glass was neither

present nor represented in the proceedings, it made

no submission of evidence or arguments, and it did

not expressly consent to the jurisdiction of the Dis-

pute Board. Plaza Glass simply complied with a re-

quest for materials from the union that represented

its employees. There was no indication that this co-

operation was intended as a commitment to be bound

by the Dispute Board’s decision. Therefore, the

Board’s decision that Plaza Glass was not so bound

is supported by more than substantial evidence.

Conclusion

The order of NLRB is enforced.

Appendix B

International Association of Bridge, Structural and Ornamental

Ironworkers, AFL-CIO, Local 433 and Plaza Glass Company

and Glaziers, Glassworkers and Glass Warehouse Workers

Union, Local No. 636, affiliated with the International

Brotherhood of Painters and Allied Trades, AFL-CIO. CASE

31—_CD—129

June 25, 1975

DECISION AND ORDER

By MEMBERS JENKINS, KENNEDY, AND

PENELLO

Upon a charge and first amended charge filed

March 14, 1974, and January 21, 1975, respectively,

by Plaza Glass Company, hereafter Employer, and

duly served on the International Association of

Bridge, Structural and Ornamental Ironworkers,

AFL-CIO, Local 433, hereafter Respondent, the Gen-

eral Counsel of the National Labor Relations Board,

by the Regional Director for Region 31, issued a com-

plaint and notice of hearing on January 23, 1975,

alleging that Respondent |. .d engaged in and was en-

gaging in unfair labor practices affecting commerce

within the meaning of Sections 8(b)(4)(ii)(D) and

2(6) and (7) of the National Labor Relations Act, as

amended. Copies of the charge, complaint, and notice

of hearing were duly served on the parties to this pro-

ceeding.

With respect to the unfair labor practices, the com-

plaint alleges in substance that during January,

February, and March 1974, Respondent violated Sec-

tion 8(b)(4)(ii)(D) of the Act by warning and

threatening the Employer that it would, inter alia,

shut down a job on which the Employer was a sub-

contractor if employees represented by it were not

placed on the job, with an object of forcing or requir-

ing the Employer to assign the work of fabricating

metal doors, metal framing pieces, and glass panes in

the construction of window wall units, to employees

represented by it rather than to employees represented

by the Glaziers, Glassworkers and Glass Warehouse

Workers Union, Local 636, affiliated with the Inter-

national Brotherhood of Painters and Allied Trades,

AFL-CIO, hereafter the Glaziers. The complaint fur-

ther alleges that Respondent has failed and refused to

abide by the Board’s November 12, 1974, Decision

and Determination of Dispute,’ which awarded the

disputed work to the employees represented by the

Glaziers, by continuing to demand the disputed work

and by failing and refusing to notify the Regional

Director, in writing within 10 days, whether or not it

would comply with the award, as required thereby.

On February 13, 1975, Respondent filed an answer to

the complaint, admitting in part and denying in part

the allegations of the complaint, and denying the

commission of any unfair labor practices.

On March 26, 1975, the General Counsel, by counsel,

filed with the Board motions for summary judgment

and to strike Respondent’s answer. He asserts, in

substance, that Respondent is not entitled to a trial

de novo on issues which were raised and litigated in

1Glaziers, Glassworkers and Glass Warehouse Workers Union,

Local No. 636, affiliated with the International Brotherhood of

Painters and Allied Trades, AFL-CIO (Plaza Glass Company),

214 NLRB No. 140 (1974).

the underlying 10(k) proceeding, and that, with the

exception of Respondent’s failure and refusal to give

the Regional Director the requisite timely written

notice, all issues raised by Respondent’s answer were

litigated in the 10(k) proceeding. On April 10, 1975,

the Board issued an order transferring the proceed-

ings before it and a notice to show cause why the

General Counsel’s motions should not be granted. On

April 14, 1975, Respondent filed an opposition to the

General Counsel’s motions.

Pursuant to the provisions of Section 3(b) of the

National Labor Relations Act, as amended, the Na-

tional Labor Relations Board has delegated its

authority in this proceeding to a three-member panel.

Upon the entire record in this proceeding, including

the record of the underlying 10(k) proceeding,’ the

Board makes the following:

Ruling on the Motions to Strike and for

Summary Judgment

Review of the record in this proceeding, and the

record of the underlying 10(k) proceeding, indicates

that a hearing was held pursuant to Section 10(k) of

the Act, at which all parties appeared and presented

evidence, and were allowed to cross-examine witnesses.

On November 12, 1974, the Board issued its Decision

and Determination of Dispute, finding inter alia, the

existence of a jurisdictional dispute involving the

2The Board’s taking official notice of the record in the 10(k)

proceeding, and reliance thereon, is well settled. Local Union No.

3, International Brotherhood of Electrical Workers, AFL-CIO

(Mansfield Contracting Corporation), 206 NLRB 423 (1973).

Respondent and the Glaziers, and that there was

reasonable cause to believe that the parties had at-

tempted to resolve it by means proscribed by Section

8(b)(4)(D). The Board also found that the results

of the proceeding before the Impartial Jurisdictional

Disputes Board for the Construction Industry was

not controlling, as Respondent had contended.’ After

due consideration of the relevant factors, the Board

awarded the disputed work to employees represented

by the Glaziers, and determined that Respondent

was not entitled by means proscribed by Section

8(b)(4)(D) to force or require the Employer to

assign the disputed work to employees represented

by it. The Board further ordered Respondent to notify

the Regional Director for Region 31, in writing, with-

in 10 days from the date of the award whether or

not it would refrain from engaging in the proscribed

conduct.

By its denials in its answer to the complaint and

by its response to the notice to show cause, Respond-

ent seeks to place in issue, inter alia, the Employer’s

status as an employer as defined in the Act; the Em-

ployer’s subcontracting to perform the disputed work ;

its threatening the Employer in support of its demand

that employees represented by it be assigned to per-

form the disputed work; and the existence of a

jurisdictional dispute. Respondent also seeks to litigate

*‘The Board found, inter alia, that the Employer’s contract

specifically referred to the National Joint Board, which was not

in existence at the time of the pertinent events, and that the

Employer had not agreed to be bound by the Impartial Jurisdic-

tional Disputes Board.

issues relating to the National Joint Board for the

Settlement of Jurisdictional Disputes (and its suc-

cessors), arguing, in effect, that a hearing in the

instant proceeding is the proper forum in which to

do so.

Review of the record in the 10(k) proceeding in-

dicates that these issues were raised and litigated

therein. As noted above, Respondent appeared in

that proceeding and was provided with a full oppor-

tunity to litigate these issues. It offers no evidence

herein that was not presented in that proceeding. It

is settled that issues raised and litigated in a 10(k)

proceeding may not be relitigated in a subsequent

unfair labor practice proceeding, alleging violations

of Section 8(b)(4)(D) which are based in part on

factual determinations made in the 10(k) proceeding.‘

Further, it is established that a hearing de novo is

not required in the unfair labor practice case on

issues litigated in the previous 10(k) proceeding,

especially where, as here, Respondent offers nothing

not previously considered therein.’ Accordingly, inas-

much as Respondent is attempting to relitigate issues

settled in the underlying 10(k) proceeding, we shall

grant the General Counsel’s motion to strike the

denials in Respondent’s answer relating to the above

matters.

‘Mansfield Contracting Corporation, supra; Bricklayers, Masons

and Plasterers International Union of America v. N.L.R.B., 475 F.

94 1316 (C.A.D.C., 1973), enfg. Bricklayers, Stone Masons, Mar-

ble Masons, Tile Setters and Terrazzo Workers, Local Union No. 1

of Tennessee (Shelby Marble & Tile Co.), 188 NLRB 148 (1971).

‘Mansfield Contracting Corporation, supra.

In the 10(k) proceeding, on the basis of undisputed

testimony, we found that Respondent had demanded

the disputed work and had threatened to shut down

the job in support of this demand, and had by this

conduct sought to force or require the assignment of

the disputed work to employees represented by it. On

this basis, we found reasonable cause to believe that

Respondent had violated Section 8(b)(4)(ii)(D) of

the Act. This undisputed evidence, which as noted

above is neither supplemented nor controverted in

this proceeding, likewise establishes, and we find, that

Respondent had engaged in the conduct with an object

proscribed by Section 8(b) (4) (ii)(D) of the Act, in

violation thereof.

Respondent’s answer also denies the allegations of

having continued to demand the disputed work, and

that it failed and refused to timely advise the Regional

Director whether or not it intended to comply with

the 10(k) award. For the reasons set forth below, we

shall grant the General Counsel’s motion to strike

these denials as well. Initially, with regard to Re-

spondent’s continuing to demand the disputed work

and its failure to give the Regional Director the req-

uisite timely written notice, the General Counsel

attaches as exhibits to his motion certain letters to the

Respondent from the Regional Office dated November

18 and December 11, 1974, and January 7, 1975. The

first letter is essentially a reminder to Respondent of

its duty to provide the required notice, while the

other two note that such notice has not been received

and basically request that it be forthcoming to fore-

stall further proceedings. Respondent offers nothing

to controvert these documents, nor their import, in

its response to the notice to show cause. In these

circumstances, we find, on the basis of this uncon-

troverted evidence, that Respondent did in fact fail

and refuse to provide the Regional Director with

timely written notice of whether or not it would com-

ply with the 10(k) award, as required thereby.°

Compliance with a 10(k) award requires a good-

faith intent by the particular respondent to accept

and abide thereby, including the performance of

substantially the same acts as are required for a

showing of an intent to comply with a remedial order

of the Board.’ This showing includes, inter alia, a

timely and unequivocal written statement to the

Regional Director indicating such an intent, as is

required ‘by the 10(k) award.’ In the instant case,

Respondent has completely failed to notify the Re-

gional Director of its intent to abide, or not abide, by

the 10(k) award, a lack of expression which clearly

does not manifest the required good-faith intent to

abide by the Board’s determination. In these circum-

stances, having found on the basis of undisputed

evidence that Respondent had demanded the disputed

work, and that it has not expressed a good-faith intent

°Cf. Teledyne, Landis Machine, 212 NLRB 73, fn. 4 (1974).

7. Local 595, International Association of Bridge, Structural

and Ornamental Iron Workers, A.F.L., et al. (Bechtel Corpora-

tion), 112 NLRB 812 (1955).

*Bechtel Corporation, supra; Local 568, I nternational Association

of Bridge, Structural and Ornamental Iron Workers, AFL-CIO

(Dickerson Structural Concrete Corporation), 204 NLRB 59

(1973).

to abide by the Board’s resolution of the dispute in

the 10(k) proceeding, we infer that Respondent has

not abided thereby and has continued to demand the

disputed work.’

We have found that Respondent engaged in conduct

proscribed by Section 8(b)(4)(D) of the Act, and

by not complying with the Board’s 10(k) award has

continued to engage in such conduct. In view of these

findings, and the finding that Respondent is attempting

to relitigate issues raised and litigated in the underly-

ing 10(k) proceeding, and that a de novo hearing

herein is not required, we shal! grant the General

Counsel’s motion to strike the denials in Respondent’s

answer. There being no issues properly litigable in

this proceeding, we shall also grant the General

Counsel’s motion for summary judgment.

Upon the basis of the entire record, the Board

makes the following:

FINDINGS oF Fact

I. THE BUSINESS OF THE EMPLOYER

Plaza Glass Company is a California corporation

engaged in the business of glazing, including the

fabricating and installing of glass curtain walls and

window walls, with an office and principal place of

business located in Woodland Hills, California. In the

course and conduct of its business operations annually,

Plaza performs services or sells goods valued in

excess of $50,000 to customers located within the State

*Tbid.

of California, who, in turn, annually purchase and

receive goods valued in excess of $50,000 directly from

sources located outside the State of California.

We find, on the basis of the foregoing, that Plaza

Glass Company is, and has been at all times material

hereto, an employer engaged in commerce and in a

business affecting commerce within the meaning of

Section 2(6) and (7) of the Act.

Il, THE LABOR ORGANIZATIONS INVOLVED

Internationa] Association of Bridge, Structural and

Ornamental Ironworkers, AFL-CIO, Local 433, and

Glaziers, Glassworkers and Glass Warehouse Workers

Union, Local No. 636, affiliated with the International

Brotherhood of Painters and Allied Trades, AFL-

CIO, are now, and have been at all times material

hereto, labor organizations within the meaning of

Section 2(5) of the Act.

Ill. THE UNFAIR LABOR PRACTICES

A. Background and Facts of the Dispute

At all times material hereto, Respondents and the

Glaziers have had a jurisdictional dispute concerning

the work of fabricating and installing metal doors,

metal framing pieces, and glass panes in the construc-

tion of window wall units. In and about the months

of January, February, and March 1974, in further-

ance of this dispute, Respondent warned and threat-

ened the Employer, inter alia, that it would shut down

the job unless employees who are members of or

represented by it were assigned to perform the dis-

puted work. In so doing, Respondent has threatened,

coerced, and restrained the Employer, with an object

of forcing or requiring it to assign the disputed work

to employee-members of or represented by it, rather

than to employee-members of or represented by the

Glaziers.

B. The Determination of Dispute

On November 12, 1974, the Board issued a Decision

and Determination of Dispute (214 NLRB No. 140)

finding that employees represented by the Glaziers

are entitled to perform the disputed work, and that

Respondent was not entitled by means proscribed by

Section 8(b) (4) (D) of the Act to force or require the

Employer to assign the work to employees represented

by it.

C. Respondent’s Refusal To Comply

By failing and refusing to notify the Regional

Director for Region 31, in writing, of its intent to

comply with the above-mentioned Decision and Deter-

mination of Dispute, Respondent has not complied

with the award and has continued to demand the

disputed work.

IV. THE EFFECTS OF THE UNFAIR LABOR

PRACTICES UPON COMMERCE

The activities of Respondent, as set forth in section

III, above, occurring in connection with the opera-

tions of the Employer, set forth in section I, above,

have a close, intimate, and substantial relationship to

trade, traffic, and commerce among the several States,

and tend to lead to labor disputes burdening and ob-

structing commerce and the free flow of commerce.

Vv. THE REMEDY

Having found that Respondent has engaged in and

is engaging in unfair labor practices affecting com-

merce within the meaning of Section 8(b) (4) (ii) (D)

of the Act, we shall order that it cease and desist

therefrom and take certain affirmative action designed

to effectuate the policies of the Act.

Upon the basis of the foregoing facts and the entire

record, the Board makes the following:

CONCLUSIONS OF Law

1, Plaza Glass Company is an employer engaged

in commerce or an industry affecting commerce within

the meaning of Section 2(6) and (7) of the Act.

2. Respondent International Association of Bridge,

Structural and Ornamental Ironworkers, AFL-CIO,

Local 433, and Glaziers, Glassworkers and Glass Ware-

house Workers Union, Local No. 636, affiliated with

the International Brotherhood of Painters and Allied

Trades, AFL-CIO, are labor organizations within the

meaning of Section 2(5) of the Act.

3. Respondent has violated and is violating Sec-

tion 8(b)(4)(ii)(D) of the Act by failing and re-

fusing to comply with the Board’s Decision and

Determination of Dispute and by continuing to de-

mand the disputed work, thereby threatening,

coercing, and restraining the Employer, with an object

of forcing or requiring the Employer to assign the

disputed work to employees represented by it.

4, The aforementioned unfair labor practices are

unfair labor practices affecting commerce within the

meaning of Section 2(6) and (7) of the Act.

ORDER

Pursuant to Section 10(c) of the National Labor

Relations Act, as amended, the National Labor Rela-

tions Board hereby orders that the Respondent,

International Association of Bridge, Structural and

Ornamental [ronworkers, AFL-CIO, Local 433, Los

Angeles, California, its officers, agents, and repre-

sentatives, shall:

1. Cease and desist from refusing to comply with

the Board’s Decision and Determination of Dispute

and from threatening, coercing, or restraining Plaza

Glass Company, where an object thereof is to force

or require Plaza Glass Company to assign the work

of fabricating and installing metal doors, metal

framing pieces, and glass panes in the construction of

window wall units to employees represented by it

rather than to employees represented by Glaziers,

Glassworkers and Glass Warehouse Workers Union,

Local No. 636, affiliated with the International

Brotherhood of Painters and Allied Trades, AFL-

C10.

2. Take the following affirmative action which the

Board finds will effectuate the policies of the Act:

(a) Post at its business offices and meeting halls

copies of the attached notice marked “Appendix.””

Copies of said notice, on forms provided by the

Regional Director for Region 31, after being duly

signed by Respondent’s representative, shall be posted

by Respondent immediately upon receipt thereof, and

be maintained by it for 60 consecutive days thereafter,

in conspicuous places, including all places where

notices to members are customarily posted. Reason-

able steps shall be taken by Respondent to insure that

said notices are not altered, defaced, or covered by

any other material.

(b) Furnish the Regional Director for Region 31

with signed copies of such notice for posting by the

Employer, if willing, in places where notices to em-

ployees are customarily posted.

(ec) Notify the Regional Director for Region 31, in

writing, within 20 days from the date of this Order,

what steps Respondent has been taken to comply

herewith.

APPENDIX (Omitted)

In the event that this Order is enforced by a Judgment of a

United States Court of Appeals, the words in the notice reading

“Posted by Order of the National Labor Relations Board” shall

read “Posted Pursuant to a Judgment of the United States Court

of Appeals Enforcing an Order of the National Labor Relations

Board.”

Appendix C

Glaziers, Glassworkers and Glass Warehouse Workers Union,

Local No. 636, Affiliated with the International Brotherhood

of Painters and Allied Trades, AFL-CIO and Plaza Glass

Company and International Association of Bridge, Structural

and Ornamental Ironworkers, AFL-CIO, Local 433. Cases 31—

CD—127 and 31—_CD—129

November 12, 1974

DECISION AND DETERMINATION OF

DISPUTE

By MEMBERS JENKINS, KENNEDY, AND PENELLO

This is a proceeding under Section i0(k) of the

National Labor Relations Act, as amended, follow-

ing separate charges filed by Plaza Glass Company,

herein called Employer, alleging that Glaziers, Glass-

workers and Glass Warehouse Workers Union, Lo-

cal No. 636, affiliated with the International Brother-

hood of Painters and Allied Trades, AFL-CIO,

herein called Glaziers, and International Association

of Bridge, Structural and Ornamental Ironworkers,

AFL-CIO, Local 433, herein called Ironworkers, re-

spectively, violated Section 8(b)(4)(D) of the Act by

engaging in certain proscribed activity with an object

of forcing or requiring the Employer to assign cer-

tain work to employees represented by their respec-

tive organizations.

Pursuant to notice, hearing was held before Hear-

ing Officer Norman L. MeCracken on May 20 and

21, 1974, and before Hearing Officer Raymond M.

Norton on June 14, 1974. All parties, including the

Employer, Glaziers, Ironworkers, and the Southern

California Glass Management Association’ appeared

at the hearing and were afforded full opportunity

to be heard, to examine and cross-examine witnesses,

and to adduce evidence bearing on the issues.’ There-

after, the Employer, Glaziers, and Ironworkers filed

briefs.

Pursuant to the provisions of Section 3(b) of the

National Labor Relations Act, as amended, the Na-

tional Labor Relations Board has delegated its au-

thority in this proceeding to a three-member panel.

The Board has reviewed the rulings of the Hearing

Officers made at the hearing and finds that they are

free from prejudicial error, They are hereby affirmed.

Upon the entire record in this case, the Board

makes the following findings:

I. THE BUSINESS OF THE EMPLOYER

We find that the Employer is a California corpora-

tion engaged in the business of glazing, including the

fabricating and installing of glass curtain walls and

window walls. The parties stipulated, and we find,

that the Employer has performed services or sold

1At the hearing, the Southern California Glass Management

Associativn was permitted to intervene as a party in interest.

This association is comprised of some 82 employers, including

Plaza Glass Company, engaged in the glass and glazing industry

in the Southern California area.

*Although Ironworkers was afforded the opportunity at the

hearing to present witnesses on its behalf, it declined to do so.

goods valued in excess of $50,000 annually to cus-

tomers which themselves meet the Board’s discre-

tionary direct-inflow jurisdictional Standard. Ac-

cordingly, we find that the Employer is engaged in

commerce within the meaning of Section 2(6) and (7)

of the Act and that it will effectuate the purposes

of the Act to assert jurisdiction herein.

II. THE LABOR ORGANIZATIONS INVOLVED

The parties stipulated, and we find, that Glaziers

and Ironworkers are labor organizations within the

meaning of Section 2(5) of the Act.

Ill. THE DISPUTE

A. Background and Facts

The following facts are undisputed. On March 19,

1973, Howard 8. Wright Construction Co., a general

contractor, engaged the Employer as a subcontractor

to furnish and install aluminum doors, frames, win-

dows, and window wall units, and to perform other

glazing work on the Ocean View Apartment project

in Marina del Rey, California. At all times since the

Employer commenced working on that project it has

utilized its own employees represented by Glaziers to

perform such work.

During January 1974, Frank P. Ragusa, president

and one of the owners of the Employer, received a

telephone call from one Kinney, a representative of

Tronworkers. At that time Kinney stated that the Em-

ployer was using glaziers to perform work which be-

longed to ironworkers and requested that Ragusa

meet with him to discuss the matter.’ Later that

month, during a meeting arranged between the two,

Kinney reiterated Ironworkers’ claim to the work on

the Ocean View project and stated that he would do

“everything in his power” to stop glaziers from per-

forming the work. Kinney further warned Ragusa

that if the Employer did not place ironworkers on the

job immediately, he would cause “one hell of a prob-

lem” with the general contractor and would shut

down the job.

Following this meeting, Ragusa telephoned Hel-

ton, a representative of Glaziers, and related the con-

tents of his conversation with Kinney. Helton then

informed Ragusa that the Employer was bound by

its agreement with Glaziers and that if it should em-

ploy ironworkers to perform the work on the Ocean

View project, Glaziers would consider the Employer

to have violated that agreement. Thereafter, by letter

dated February 12, 1974, Glaziers notified the Em-

ployer that in the event it did not assign to glaziers

the window wall work on the Ocean View project, as

*According to the uncontroverted testimony of Ragusa, Kinney

had spoken with him in November 1973 while the Employer was

engaged in similar work on another .~.:ect. At that time Kinney

claimed such work for ironworkers and stated that, although

the Employer would be permitted to complete that project, it

would not be allowed to perform such work in the future within

Orange County, California, unless it employed ironworkers for

such work.

well as similar work on other projects to be com-

menced in the future, Glaziers would take action

“including withdrawing Glaziers from your job sites,

refusing to dispatch Glaziers and picketing all job

sites where your Company is performing work... .”

Subsequently, on March 15, Ragusa was ap-

proached by Kinney at the Ocean View project. At

that time, Kinney told Ragusa that the Jurisdictional

Disputes Board had awarded the work at that project

to ironworkers and demanded to know why the Em-

ployer had not complied with the award. When

Ragusa advised Kinney to contact Glaziers, Kinney

again stated that he would go to the general contrac-

tor and shut down the job. Shortly thereafter, Ragusa

received a telephone call from one Lansford, another

representative of Ironworkers, who suggested that

they meet to discuss the matter. Ragusa agreed to do

so and, on March 18, he met with Lansford and Kin-

ney. During this meeting Ragusa rejected Lronwork-

ers’ request to employ its members on the Ocean

View project, whereupon Lansford threatened to

shut down the job. Kinney then stated that the Iron-

workers is “big” and “powerful” and “we can get

anything we want,” and then added, “You’re Italian,

you know how the Mafia works? . . . They [Iron-

workers] could get rough and tough... .”

B. The Work in Dispute

The work in dispute consists of the fabricating and

installing of metal doors, metal framing pieces, and

glass panes in the construction of window wall units.

C. Contentions of the Parties

Ironworkers solely contends that this proceeding is

not properly before the Board because an agreed-

upon method for the voluntary settlement of the dis-

pute exists to which all parties are bound. In support

of this contention Lronworkers argues that all parties

herein are bound to the procedures of the Impartial

Jurisdictional Disputes Board for the Construction

Industry, herein called the Impartial Jurisdictional

Disputes Board, and, therefore, to a decision of that

body awarding the work in dispute to ironworkers.

The Employer contends that its assignment of the

disputed work is consistent with its collective-bar-

gaining agreement with Glaziers and its past practice

and area practice, and that the factors of relative

skills, safety, efficiency and economy of operations

favor an award of the disputed work to employees

represented by Glaziers. The Employer further con-

tends that no agreed-upon method for the voluntary

settlement of the instant dispute exists to which all

parties are bound.

Glaziers, for reasons similar to those urged by the

Employer, contends that the work in dispute should

be awarded to employees represented by it. Glaziers

further contends that any award herein should not be

limited to the Ocean View project, but rather should

encompass all similar work performed by all glass

installing contractors in the southern California area.

D, Applicability of the Statute

Before the Board may proceed with a determina-

tion of dispute pursuant to §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 there is no agreed-upon method for the vol-

untary settlement of the dispute.

As stated above, it is undisputed that Ironworkers

demanded the disputed work and, on various occa-

sions, threatened to shut down the Ocean View project

in support of its demand. It is further undisputed

that Glaziers claimed the work involved herein, as

well as such worked to be performed by the Employer

in the future, and advised the Employer that if the

latter failed to assign such -vork to employees repre-

sented by it, it would withdraw its members, refuse to

dispatch its members, and picket the Employer’s job-

sites. Based on the foregoing and the record as a

whole, we find that both Ironworkers and Glaziers

sought to force or require the assignment of the dis-

puted work to employees represented by their re-

spective organizations. Accordingly, we find reason-

able cause exists to believe that Ironworkers and

Glaziers, respectively, violated Section 8(b)(4)(D)

of the Act.

As noted above, Ironworkers contends that all par-

ties herein are bound to the procedures of the Impar-

tial Jurisdictional Disputes Board and to the decision

rendered by that body awarding the work involved

herein to ironworkers, With respect to the Employer,

Ironworkers primarily contends that it is expressly

bound to the procedures of the Impartial Jurisdic-

tional Disputes Board by virtue of its subcontracting

agreement with the general contractor on the Ocean

View project, executed on March 19, 1973, and

which provides in pertinent part: “Subcontractors

are bound by [sic] agreement establishing [sic] Na-

tional Joint Board and its procedural rules in assign-

ment of work. . . .” Alternatively, Ironworkers

contends the Employer has in fact submitted the

instant dispute to that body inasmuch as it was fully

aware of, but did not protest, the proceedings before

that body, and it supplied evidence to Glaziers for

use in those proceedings. We find these contentions

without merit.

By its terms the above-quoted clause of the contract

between the Employer and the general contractor on

the Ocean View project specifically refers to the Na-

tional Joint Board, a body which was in existence

at the time of the execution of the contract, but which

had expired at the time of the events herein. Applying

the rationale set forth in Lembke,’ we hold that the

Employer’s obligation to be bound to the National

Joint Board ceased with the termination of that body.

Furthermore, in view of the fact that the Impartial

Jurisdictional Disputes Board did not come into

existence until June 1, 1973, and in view of the absence

of any evidence showing that the Employer has stipu-

lated to be bound to the procedures of that body, we

conclude that it has not expressly consented to be

‘Bricklayers, Masons and Plasterers’ International Union of

America, Local No. 1, AFL-CIO (Lembke Construction Company

of Colorado, Inc.), 194 NLRB 649, 650-651 (1971).

bound thereby.’ Finally, we reject Lronworkers’ con-

tention that the Employer, by its conduct, signified an

intention to be bound by the proceedings before the

Impartial Jurisdictional Disputes Board. In this re-

gard, we particularly note that the Employer neither

was present nor was represented during those pro-

ceedings; that it did not directly correspond with that

body ; and that it did not inform any one that it would

consider itself bound by any decision rendered by that

body.°

It is clear from the foregoing, and we find, that at

the time of the instant dispute there did not exist any

agreed-upon or approved method for the voluntary

adjustment of the dispute to which all parties to the

dispute were bound.’ Accordingly, the matter is prop-

erly before the Board for determination.

‘The Impartial Jurisdictional Disputes Board is a creature of

the Plan for Settlement of Jurisdictional Disputes in the Con-

struction Industry which became effective on June 1, 1973. That

plan provides that an employer may bind itself to the plan by

signing a stipulation that it is willing to be bound, or by member-

ship in an association of employers which has the authority to

bind its members and which has signed a stipulation to be bound,

or by being a party to a collective-bargaining agreement which

provides for the settlement of disputes under the plan. The record

clearly discloses that the Employer has not committed itself to

the procedures of the plan through any of these means.

*Cf. Sheet Metal Workers International Association, Local 19

(Modern Cooling, Inc.), 199 NLRB 1020 (1972); International

Association of Bridge, Structural & Ornamental Iron Workers,

Local 272 (P & G Erectors, Inc.), 203 NLRB 1021 (1973).

7At the hearing, Respondent filed a “Motion to Dismiss” the

10(k) proceeding on the ground that all parties are bound to

the award rendered by the Impartial Jurisdictional Disputes

Board. The Hearing Officer reserved ruling on this motion to

the Board. In view of our decision herein, we hereby deny Re-

spondent’s motion.

E. Merits of the Dispute

Section 10(k) of the Act requires the Board to

make an affirmative award of the disputed work

after giving due consideration to various relevant

factors.

1. Certification and collective-bargaining agreements

Neither of the labor organizations herein involved

has been certified as the collective-bargaining repre-

sentative for a unit of the Employer’s employees. The

Employer has no collective-bargaining agreement with

Ironworkers. The Employer, however, has a current

collective-bargaining agreement with Glaziers which

specifically covers the work in dispute. The Employer’s

collective-bargaining agreement with Glaziers, there-

fore, favors the Employer’s assignment of the work to

its employees represented by Glaziers.

2. Employer’s assignment and practice

It is undisputed that since it began operations in

1965, the Employer, with the exception of one project,

has consistently assigned the work in dispute to its

employees represented by Glaziers. The Employer’s

past practice, therefore, favors the Employer’s assign-

ment.

3. Area and industry practice

The Employer presented testimony that it is the

general practice among glazing contractors perform-

ing window wall work in the Southern California

area to utilize glaziers for all phases of such construc-

tion. Glaziers presented testimony that during the

last 5 years employees represented by it have installed

approximately 85 to 90 percent of the metal units in

window wall construction in this area.

Ironworkers has submitted into evidence a copy of

the decision rendered by the Impartial Jurisdictional

Disputes Board which awards the disputed work to

ironworkers based on trade practice. Although we do

not consider that award binding on the Employer, we

do consider it as a factor in determining the proper

assignment of the work in dispute. However, in view

of all the circumstances, we are of the opinion that

the award of the Impartial Jurisdictional Disputes

Board should not be accorded controlling weight. We

find, therefore, that the evidence relating to area and

industry practice is inconclusive.

4, Relative skills, safety, efficiency, and economy of

operations

The record shows that the fabrication and installa-

tion of metal framing pieces for window wall units

require working at close tolerances to ensure that

window panes are firmly and properly installed. Fur-

thermore, the handling and cutting of glass require

the exercise of great caution and, if done improperly,

may cause serious injury to workmen. Additionally,

the improper installation of window wall units

creates a real risk that the glass panes may break and

fall to the ground from great heights thereby causing

serious personal injury and property damage. It is

undisputed that glaziers possess the necessary skills

and experience to perform such work in a satisfac-

tory and safe manner. It is further undisputed that

ironworkers are unaccustomed to working at such pre-

cise tolerances and that they have no experience in

glazing work. The factors of relative skills and safety,

therefore, favor the Employer’s assignment.

The Employer urges that factors of efficiency and

economy of operations support its assignment. Thus,

the Employer presented undisputed testimony that

glaziers perform the work involved herein in a rapid

and efficient manner, thereby avoiding delays in con-

struction which may result in the incurring of costly

penalties by the Employer. Furthermore, the Em-

ployer presented testimony that the utilization of

glaziers offers greater flexibility and versatility in the

performance of such work. In this regard, the Em-

ployer adthiced testimony that during those frequent

periods when metal is unavailable, glaziers may be

used to install glass panes, whereas ironworkers, who

do not possess this additional skill, would have to

stand idle. Since Ironworkers adduced no evidence to

establish that it would be at least as economical to

utilize employees represented by it, we find that the

factors of efficiency and economy of operations favor

the Employer’s assignment.

Conclusion

Upon the record as a whole, and after full consid-

eration of all relevant factors involved, we conclude

that the Employer’s employees represented by Gla-

ziers are entitled to perform the work in dispute. We

reach this conclusion upon the facts that the assign-

ment is consistent with the Employer’s past practice

and its current collective-bargaining agreement with

Glaziers; it is not clearly inconsistent with area prac-

tice; the employees represented by Glaziers possess

the requisite skills and safety considerations to per-

form the work; such assignment will result in greater

efficiency and economy of operations; and it is con-

sistent with the Employer’s preference. Accordingly,

we shall determine the dispute before us by awarding

the work in dispute to the Employer’s employees rep-

resented by Glaziers, but not to that Union or its

members. In consequence, we also find that Iron-

workers is not entitled by means proscribed by

Section 8(b) (4) (D) of the Act to force or require the

Employer to assign the disputed work to employees

represented by it.

The Board has previously held that it will restrict

the scope of its determination to a specific jobsite

unless there is evidence that similar disputes may

occur in the future.’ In view of the undisputed testi-

mony of the Employer’s president that Ironworkers

has stated its intention to prevent the Employer from

utilizing glaziers to perform such work anywhere

within Orange County, California, and that the Em-

ployer, as of the time of the hearing, had future

commitments to perform such work in that area, we

*See, e.g., International Longshoremen’s Association, Local 1576,

AFL-CIO and International Longshoremen’s Association, Local

329, - a (Texas Contracting Company), 162 NLRB 878,

884 ( ).

believe that there is a reasonable likelihood that this

dispute will recur. Therefore, our determination in

this ease applied not only to the jobsite where the

dispute arose, but to all similar work done or to be

done by the Employer within the Orange County,

California, area.

DETERMINATION OF DISPUTE

Pursuant to Section 10(k) of the National Labor

Relations Act, as amended, and upon the basis of the

foregoing findings and the entire record in this pro-

ceeding, the National Labor Relations Board makes

the following Determination of Dispute:

1. Employees of Plaza Glass Company who are

currently represented by Glaziers, Glassworkers and

Glass Warehouse Workers Union, Local No. 636, af-

filiated with the International Brotherhood of

Painters and Allied Trades, AFL-CIO, are entitled

to perform the work of fabricating and installing

metal framing pieces and glass panes in the construc-

tion of window wall units on the Ocean View Apart-

ment project at Marina del Rey, California, and on

any other of the Employer’s projects in the Orange

County, California, area.

2. International Association of Bridge, Structural

and Ornamental Ironworkers, AFL-CIO, Local 433,

is not entitled by means proscribed by Section 8(b)

(4)(D) of the Act to force or require Plaza Glass

Company to assign the above work to employees

represented by it.

3. Within 10 days from the date of this Decision

and Determination of Dispute, International Associ-

ation of Bridge, Structural and Ornamental Iron-

workers, AFL-CIO, Local 433, shall notify the

Regional Director for Region 31, in writing, whether

or not it will refrain from forcing or requiring the

Employer, by means proscribed by Section 8(b) (4) (D)

of the Act, to assign the work in dispute to employees

represented by Ironworkers rather than to employees

represented by Glaziers.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.