Motion for Leave and Amicus Curiae Brief — NLRB v. Plasterers

INDEX

, | Page

» MOTION } —— (1)

_ INTERESTS OF THE AMICI .........., (2)

CONCLUSION . ee (4)

- BRIEF . ; | 4

INTERESTS OF THE AMICI 2

ARGUMENT 2

I. Introduction And Summary .. | 2

Il. The Language Of The Statute Dictates The

Conclusion That The Employer Is A Party

To The Dispute Within Section 10(k) -...... 5

III. Considerations Of Industrial Realities Com- :

_ pel The Conclusion That The Employer Be

Recognized As A Necessary Party To The

Dispute 6.

-IV. The Contemporaneous Construction Of The

Statute By Construction Industry Groups

Accords With The Recognition Of The Em- —

ployer As A Party To The Dispute -.......... 10

V. The NLRB’s Construction: Is Not Inconsist-

ent With the Applicable Legislative His-

_ tory 12

‘VI. The NLRB’s Consistent Administrative

Construction For More Than Twenty Years

Without Congressional Change Is Entitled

To Great Weight And Should Be Affirmed

In The Absence; As .Here, Of ee

Reasons To The Contrary : 15

A. The NLRB Construction of the Statute

in the Circumstances i is EntitledtoGreat ~.

Weight 15

B. The Reasoning of the Court Below Does

Not Militate Against the NLRB’s Con-

struction of the Statute 17

CONCLUSION .........-- — 25

ii -INDEX—Continued:

AUTHORITIES CITED

Cases: — - Page

Acoustical Contractors, tt9 NLRB 1845 (1957) .. 12

Boys Markets, Inc. v. Retail Clerks Union, 398

U.S. 235 (1970) - 17

Carey V. Westinghouse Corp., 875 U.S. 261

(1964) ....... 5, 21, 22

Int’l Hod Carriers Union, Local 281 (Middle States

Tel. Co.), 91 NLRB 598 (1950) 16

Int’l Longshoremen’s and Warehousemen’s Union,

Local 16 (Juneau Spruce CoP): 82 NLRB 650 .

(1949) 18

. International Union of Operating Engineers, Local ~

66 (Frank P. Badolato & Sons), 185 NLRB

| 1392 (1962) -. 4

Local 450, International Union of Op. Eng. v. -

Eliott, 256 F.2d 630 (5th Cir. 1958) -............... 4

Local 502, Int’?! Hod Carriers ( Cement-Work,

Inc.), 140 NLRB 694 (1968) ...0.....-------o-c0ee0-e----- _ 20

Local 532, United Brotherhood of Carpenters (D.

W. Winkelman Co.), 189 NLRB No. 94 (1971) .. 4,16 .

Local 978, United Brotherhood of Carpenters Vv.

‘Markwell, 305 F.2d 88 (8th Cir. .1962) -........... 15.

Local 1291, ILA, 152 NLRB 676 (1965) , enforces,

8368 F.2d 107 (3rd Cir. 1966) ~..-...-.._........--- 21

Local 1905, Carpet Linoleum Layers ( Butcher &

Sweeney Constr. Co.), 143 NLRB 251 (1963) .. 20

| Lodge 68 of the Int’l Ass’n of Machinists (Moore *3

7 Drydock Co.), 81 NLRB 1108 (1949) ................ 18

- Los Angeles Bldg. & Constr. Trades Council (West- -

inghousé Electric Corp.), 83 NLRB 477 (1949) .. 4, 16

| _ -McLaren-v. Fleischer, 256 U.S. 477 (1921) -........ 16

; N.L.R.B.-V. Gullett Gin Co., 340 U.S. 361 (1951) . 17

N.L.R.B. v. Local. 25, I.B.E.W. (Sarrow-Suburban :

Elec. Co.), 388 F.2d 449 (2nd Cir. 1967) .......... ~ 15

N.L.R.B. Vv. Local 25, I.B.E.W., 896 F.2d 591 (2nd

Cir. 1968) - a. 9, 22-23

N.L.R.B. v.. Local 825, Int’l Union of Op. Eng., 7

826 F.2d 218 (3rd Cir. 1964) 4

N.L.R.B. v. Local 825, Int’l Union of Op. Eng., 410

F.2d 5 (3rd Cir. 1969) | : 4

INDEX—Continued _ : tii

| Page

‘N.L.R.B. v. Radio & Television Broadcast Engi-' — -

neers Union, Local 1212, I.B.E.W. (CBS), 364

U.S. 573 (1969) 6

New Orleans Typographical Union No. 17 vy.

N.L.R.B., 368 F.2d 755 (5th Cir. 1966) _..... 4

Norwegian Nitrogen Products Co. v. United States, .

288 U.S. 294 (1988) ow 16

TT) 4

Retail Clerks Local 770 v. Thrifty Mart, 59 Cal.

2d 421, 380 P.2d 652 (1963) __...... cones hye

Retail Clerks Local 428 v. L. Bloom & Sons, 173

Cal.App.2d 701, 344 P.2d 51 (1959) 21

Teamsters Local 107 (Safeway Stores, Inc.), 134.

NLRB 1320 (1961) uw 20, 21

(1966) 22 en ee 9

Udall_v. Tallman, 380 U.S. 1 (1965) 16

United Bhd. Carpenters, Local 581 (Ora Collard),

98 NLRB 346 (1952) ne a ea weeee eens 4,16

United States v. American Trucking Ass’n, 310 «

U.S. 534 (1940) depshseeteesecereas .. . 16

Universal Battery Co. v. United States, 281 U.S.

580 (1980) - 16

Zemel V. Rusk, 381 U.S.1 (1965) 16, 17

Statutes:

National Labor Relations Act, as amended (61 .

Stat. 136, 78 Stat. 519, 29 U.S.C. Secs. 151, et .

seq.) : .

Section 8(b)(4)(D) _........ 3, 4, 5, 6, 7, 10, 12, 18, 14,

a 17, 18, 19, 20

Section 10(k) ....,.... (3), 3, 4, 5, 6, 8, 9, 10, 12, 18, 15,

- , 17, 18, 19, 20, 21, 22, 24

Section 301. ....... Setrintteetaetinwe ta "Ff

‘INDEX—Continued

: , 4

, e oy

. y .

Miscellaneous: | ud Page

93 Cong. Rec. 1910, 2 LH Aaa YS er “14.

93 Cong. Rec,/7000, 2 LH 1624 (1947) -.......0...2. ° 14

_ ELR. 3020, as passed by the House, 80th Cong., 1st

Sess. _

Section’2(15), 1 LH 169 (1947) -........... - 413

. Section 12(a), 1 LH 169 (1947) . ~

H.R. 3020, as passed by the Senate, 80th Cong., 1st

Sess., p. §1,-1- GH .289 (1947) -.............-.---.---0020--- 13, 14°

H.R. Conf, Rep. No. 510, 80th Cong., Ist Sess. p>

57, 1 LH 561 (1947) ...... ‘ “18

34 NLRB Ann. Rep. 204 (1969) ....... (3),5;7

Address by Robert Denham, Associated General |

Contractors Annual Convention, Feb. 41, 1948 .. 11:

Attleson, The NLRB and Jurisdictional ad daaeea

53 Geo. L. J. 93 (1964) 9

>

—_

-

Commeht, The Employer as a Necessary Party to

Voluntary Settlement of Work Assignment Dis-

putes Under Section 10(k) of the NLRA, 38 U.

Chi. L.’ Rev. 389 (1971) ...... = 6, 7, 8, 19, 23

Note, The NLRB and Deference to Arbitration,

77 Yale L. J. 1191 (1968) --.................... teat 8, 23

Report of President, Building Trades Department,

41st Annual Convention (Nov. 10, 1948) -......... 10 .

K. STRAND, JURISDICTIONAL DISPUTES IN

*” CONSTRUCTION, 45 (1961) -.................. 8, 10, 11, ea

oo

| IN THE

os Supreme Court of the Hriten States

OcTOBER TERM, 1970

- -

\ ———y

No. 1184 and 1281

_ No. 1184

NATIONAL LABOR RELATIONS BOARD, PETITIONER,

Vv.

PLASTERERS’: LOCAL UNION No. 79, OPERATIVE PLASTER-

ERS’ AND CEMENT MASON3’ INTERNATIONAL ASSOCIA-

TION,- AFL-CIO, ET AL.

aoe - No. 1231 _ J

- TEXAS STATE TILE. & TERRAZZO Co., INC., MARTINI TILE

& TERRAZZO Co., TILE CONTRACTORS ASSOCIATION OF

AMERICA, INC., PETITIONERS, — weed

4 ; v. . m ,

PLASTERERS’ LOCAL UNION No..79; OPERATIVE PLASTER- - -

ERS’ AND CEMENT MASons’ INTERNATIONAL ASSOCIA-

TION, AFL-CIO, ET aL. -

9? \ ‘ . é

"On Writs of Certiorari tothe United States Court

of Appeals for. the District of Columbia Circuit |

Y al

MOTION FOR LEAVE TO FILE

A BRIEF-AS AMICUS CURIAE*

ep AMICUE, :

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— LES EASELS COLE RIO R N ET Nit AOE ADT ENC AR Pe OLE tty 5 ak ba act rs

?

Pursuant to Rule 42(8) of the Rules of this Court, the

following contractor associations—Associated General Con-

tractors of America, International Association of Wall &

Ceiling Contractors, Mason Contractors Association of

America, National Roofing Contractors Association, and

National Utility Contractors Association—move for leave .

to file the attached brief amicus curiaein this case. Coun-

sel for the amici have sought the consent of the parties

involved: attorneys for the petitioners consented, but —

the attorneys for respondent refuséd. ©

_ INTERESTS OF THE AMICI

1. The amici here are all national associations repre-

senting -contractors in various phases of the construction

' industry. The Associated General Contractors of America

(“AGC” herein) represents approximately 9,000 general

construction contractors who péxform contracts in the’

amount of approximately $75,000,000,000 per year. The’ .

other amici represent approximately 3,000 contractors

providing. specialized construction, usually as subcontrac-

. tors, at all kinds of construction projects: the Interna-

tional Association of Wall & Ceiling Contractors repre-

- sents more than 450 contractors involved in the appli-

cation of wall and ceiling systems; the Mason Contractors

Association represents more than 1500 masonry contrac-

‘tors, who annually :perform contracts for masonry con-

struction in excess of $750,000,000; the National Roofing

-. Contractors Association represents 600 contractors who

_ perform the bulk of all roofing construction in the coun-

_ try; ‘and the National Utility Contractors Association rep-

‘resents approximately 400 contractors engaged in the con-

struction of underground wey lines and other Donia d

construction ‘projects.

2. ‘These amici. have a particularly vital interest i in

the issue presented here: The building and construction

industry is a highly unionized industry, and is the primary

source of strikes involving jurisdictional disputes. Sta-

(2) -

cael Stas SRS RT eR cx Tie ar emenp see Ee Een ER NE GREE ENN ERG ot NES)

Se a ye

.- diction.

tistics of the National Labor Relations Board show that

during -the last fiscal year approximately 66 percent of all

‘unfair labor practice charges in jurisdictional dispute

cases arose in the construction industry. 34 NLRB Ann.

Rep. 204-205 (1969).- Each of the amici and their con-

stituent members have been ‘involved, and currently are

- Involved, in innumer‘able jurisdictional. disputes with vari-

ous building trades craft unions. The resolution of these

disputes are of vital concern to construction industry con- .

tractors because their economic existence is to a substan-

tial degree affected by the outcome of these disputes and

their speedy resolution.

3. The issue presented in this case is the proper in-

terpretation of the jurisdictional dispute provisions of the

National Labor Relations Act. The court below over-

_ turned the settled construction of the Act which. the NLRB

had consistently given for more than 20 years, and held -

that the NLRB had no authority under Section 10(k) of

the Act (29 U.S.C. § 160(k) ) to determine a jurisdictional

dispute where the unions, involved in the dispute had

agreed between themselves, and ‘without the agreement

or consent of the employer, to be bound by a voluntary

method of adjustment of the dispute. Petitioners ques-

tion the validity of that holding here, contending that the -

employer must also agree to be bound by any such volun-

tary adjustment before the NLRB. is ousted of juris-

4. The decision of the court below. presents grave

problems for construction’ industry employers. The ef-

. fect of the court’s decision is to place the resolution of all

disputes over an employer’s work. assignments solely in

the hands of the unions involved and, whatever dispute-

settling machinery they wish to establish. In the con-

struction industry, nearly all building trades craft unions

are bound to submit such disputes to the National Joint

Board, a bédy created by the Building Trades Department

of the AFL-CIO. - This Joint Board has consistently sub-

(3)

a . ” Prsenseiencoonse

SU TERR : PEERAGE DREN LI EM IRAE YS IONE ERT Caer

. ; ; DB,

ordinated factors essential to the operation of a contrac-

tor’s business (economy, efficiency, ability, etc.) to reli-

ance upon ancient and outmoded inter-union agreements

or decisions of record, many dated back to the early

1900’s. Thus, its decisions do not fairly consider essen-

tial managerial considerations, and therefore, fail to re-

flect econdmic realities. Despite efforts on the part of the

AGC and other employer groups to effect changes in the

Joint Board to reflect managerial considerations, the Joint

Board has failed to do so. Accordingly, many employer

groups (including all of the amici here) have withdrawn

from or have refused to participate in the Joint Board

_plan, and are not stipulated to the current Joint Board.

Despite this fact, the court’s decision requires employers,

whether they are stipulated to the Joint Board or not, to

accept its work-assignment’ resolutions. |

5. The amici urge that the court’s decision is contrary

* to the intent of Congress, and reflects the court’s miscon-

. ception of the nature of jurisdictional disputes as under-

stood by. Congress and as recognized by industry, em-

ployer and union alike, as well. The amici urge that they,

as national associations for general contractors, subcon-

tractors, and specialty contractors, and particularly be-

- eause of the AGC’s primary role in the formation and de-

velopment of the National J oint Board, are uniquely

qualified ‘to present the position ‘of the construction in-

_ “dustry on the important issue raised in this case.

(4)

‘CONCLUSION

For the foregoing reasons, the amici herein respect-

fully request the Court to grant. this motion for leave to

‘file the attached’ brief amicus curiae in support of the

position of petitioners.

Respectfully submitted,

JOSEPH M. STONE.

815 Fifteenth Street, N.W. .

Washington, D. C. 20005 ©

GrorGE L. PLUMB

135 South LaSalle Street

Chicago, Illinois 60603

BETTY SOUTHARD MURPHY

Suite 1032, Pennsylvania

Building.

13th & Pennsylvania

‘Avenue, N.W. :

Washington, D. C. 2000

Counsel for the Amici

May 1971 |

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IN THE

“gece Court of the United States

OCTOBER TERM, 1970 ~

No. 1184 |

NATIONAL LABOR RELATIONS BOARD, PETITIONER,

—_

‘PLasTERERS’ LocaL UNION No. 79, OPERATIVE PLASTER-

ERS’ AND CEMENT MASONS’ .INTERNATIONAL ASSOCIA- .

TION, AFL-CIO, ET AL.

No. 1231

TEXAS STATE TILE & ‘TERRAZZO Co., INC., MARTINI TILE

& TERRAZZO -Co., TILE CONTRACTORS ASSOCIATION OF .

_ AMERICA, INC., PETITIONERS,

v.

PLASTERERS’ LocaL UNION No. 79, OPERATIVE PLASTER- .

ERS’ AND CEMENT MASONS’ INTERNATIONAL ASSOCIA-

TION, AFL-CIO, ET AL.

On Writs of Certiorari to the United States Court

of Appeals for the District of Columbia Circuit

BRIEF AMICUS. CURIAE FOR THE

ASSOCIATED GENERAL CONTRACTORS OF

AMERICA, INTERNATIONAL ASSOCIATION

OF WALL & CEILING CONTRACTORS, MASON

CONTRACTORS ASSOCIATION OF AMERICA,

NATIONAL ROOFING CONTRACTORS

ASSOCIATION, AND NATIONAL UTILITY

CONTRACTORS ASSOCIATION. <

. ——"

FREE 8 PLE DEEN IRE LI CLL AGE AF ei a i Ne a we as aa rl pated SE Ore

2

INTERESTS OF THE AMICI

This brief is submitted pursuant to Rule 42 of the

Rules of this Court, subject to the Court’s granting of

the attached Motion for Leave to File a Brief as Amicus

Curiae. The amici herein support the position of the

petitioners: in this case, urging reversal of the decision —

by the United States Court of Appeals for the. District

of Columbia. Circuit.

The interests of the amici are stated in the attached’

Motion (supra, pp. 1-5), and are not repeated herein.

ARGUMENT

THE NLRB’S CONSISTENT CONSTRUCTION OF

SECTION 10(k) OF THE ACT TO INCLUDE THE

EMPLOYER AS A NECESSARY PARTY TO A

JURISDICTIONAL DISPUTE COMPORTS WITH

THE CONGRESSIONAL INTENT, THE GENERAL

POLICIES OF THE ACT, INDUSTRIAL REALI-

TIES, AND THE CONTEMPORANEOUS CON-

STRUCTION THAT INDUSTRY GAVE THAT PRO- |

_ VISION UPON ITS ENACTMENT. THE CONTRARY

CONCLUSION BY THE COURT BELOW FAILS TO

DISPEL THE REASONABLENESS OF THIS CON-

STRUCTION AND THEREFORE MUST BE RE-

VERSED. , oe

I. Introduction And Summary.

The issue presented in this case concerns ,the proper.

construction of the statutory provisions of the National

Labor Relations Act? involving the resolution of ‘juris-

dictional or work-assignment disputes. The court of ap-

peals . below, . overturning the consistent interpretation

given by the NLRB since these provisions were added -

to the statute in 1947, held that whenever: the. unions

‘involved in a jurisdictional dispute have agreed among

. 129 US.C. 151, et seq.

a

3°

themselves to resolve the dispute through some form of

voluntary adjustment, their resolution of the dispute is

a

. controlling for statutory purposes even though the struck

employer did not agree or. consent to be bound ‘by-their

resolution of the. dispute} thus, under this circumstance,

the NLRB is ousted of. jurisdiction indépendently to de-

termine the dispute, and NLRB regulation of further pick-

“ eting or strikes concerning the dispute must be in accord-

ance with the union’s resolution.

The decision of the court below, and the issue presented

in this case, turns on the determination of who comprises

the “parties” to jurisdictional disputes within the meaning

of Section: 10(k).’ That section, and companion. Section

8(b).(4) (D), are the jurisdictional dispute provisions of 7

the Act, and must be read together for an understanding

of the statutory scheme.

Section 8(b) (4) (D) makes it-an unfair labor practice

for a labor organization to strike or picket to force “any

employer to assign particular work to employees in a par-

ticular labor organization or in a particular trade, craft, .

or class rather than to employees in another labor or- |

ganization or in another -trade, craft, or class... .”2-

>

? Section 8(b) (4) (D) provides in full:

.It shall be an- unfair labor practice for a labor organization

‘or its agents—

; _ * * ¥ *

(4) (i) 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, trans-

port, or otherwise handle or work on any goods, articles, mia- © -

terials, or commodities or to perform any services; or (ii) to

threaten, coerce, or restrain any person efigaged in commerce ..

or in an industry affecting commerce, where in either case an

object thereof is: - ah . i>

= * * -: * .

/ (Dy forcing or ‘requiring any émployer to assign par-

ticular work to employees.in a particular labor organization

or in a particular-trade, craft, or class rather than to em-

4 :

_ Section 10(k) provides that whenever an 8(b) (4) (D)

charge is filed, the, NLRB is —

- directed to hear ‘and determine the dispute out of

which such unfair labor practice shall have arisen,

unless . . . the parties to such dispute submit to the

Board satisfactory evidence that they have adjusted, .

or agreed upon methods for the seen adjust-

ment‘ of, the dispute .

The NLRB has oiuiently held that the struck em-.

ployer as well as the competing unions are “parties” to |

the jurisdictional dispute within the meaning of Section

10(k), and has required the employer to consent to any

agréed upon method of voluntary adjustment, along with _

the unions involved, before it will divest itself of juris-

diction under the abstention ‘provision of 10(k).* This

consistent construction has*been adhered to by the NLRB

for more than twenty years, and had been accepted by

every. court of appeals which had adverted to it.* How-

ever, the court below rejected this interpretation, holding.

that it “is not: the employer but the rival unions (or

other employee groups) o are the parties to the juris-

. ‘ ployees in another. labor organjzation or in another trade,

- craft, or class,-unless such employer is failing to conform

~ to an order or certification of the Board determining the

bargaining representative for employees performing such

work: * ** :

3E.g., Los Angeles ‘Bldg. & Constr. Trades Council ( Westing-

house Electric Corp.), 83 NLRB 477, 482 (1949); United Bhd.

Carpenters, Local 581 (Ora Collard), 98 NLRB 346, 349 (1952) ;

International Union of Operating Engineers, Local 66 (Frank P:

Badolato & Sons), 135 NLRB 1892, 1896 (1962) ; Local 532, United

Brotherhood of Carpenters '(D. W. Winkelman Co.), 189 NLRB No.

94 (1971).

* N.L.R.B. v. Local 825, Int'l Union of Op. Eng., 326 F.2d 218,

216 (3rd Cir. 1964); Local 450, Int’l Union of Op. Eng. v. Elliott,

+ 256 F.2d 630, 635-636 (5th Cir. 1958) ; N.L-R.B, v. Local, 825, Int’l

- Union of Op. Eng., 410 F.2d 5, 9 (3rd Cir. 1969) ; N Orleans

Typographical Union No. 17 Vv. N.L.R.B., 368 F.2d’ "755, 763 (5th

C Cir. 1966); Quinn v. N.L.B.B., 61 LREM 2690 (D.C. Cir. 1966).

y

OF

°

5

dictional dispute contesting which employees are entitled

to, seek the work in question” (A. 371). Accordingly,

the court held that the NLRB “may not, properly proceed

_to determine a jurisdictional dispute pursuant to Section

10(k) when the disputing unions have agreed to settle

their dispute... .” (A. 368). |

The amici herein. urge that the court’s construction

of the statutory provisions is-plain error. The amici

show below thatthe interpretation of the NLRB is ton- -

a

.

sistent -with the plain language of the statute and. the

intent of Congress, reflects industrial realities, and com-

_ ports with the construction that industry—both employer

and ‘union groups aliké—placed’ on the. statute when it

was enacted. Further, the amici show that, in considera-

tion of all the circumstances ‘here, the: NLRB’s consistent

interpretation is entitled to great weight and should be

upheld. - . oe

\ , _ - ,

II The Language Of The Statute Dictates The Conclusion

That The Employer Is A Party To The’ Dispute With-

in Section 10(k) _

' The relationship of the pertinent statutory provisions,

when read together, plainly shows that the employer as

Well as the competing employee‘ groups are necessarily

“parties” to a jurisdictional dispflte within the meaning

of Section 10(k). “That section comes into play under -

‘ the statutory language only after a union has struck, or

has engaged in some other prohibited coercion, against an

employer to force or requiré a different assignment of

work, and the employer, or some other affected party,

has filed an unfair labor practice charge under Section |

. 8(b) (4) (D) of the “Act. See Carey *v. Westinghouse

Corp.,.375 U.S. 261, 263-264 (1964). _ Whenever this

occurs, Section 10k) requires the NLRB to “determine

° The employer was the charging party in 535 of 579 charges

under Section 8(b) (4) (D) filed in fiscal year 1969. 34 NLRB Ann.

Rep. 197 (1969). . ~ .

EAR RR ER Aa g ARATE SRI RAIN OR LOIOE OE EIEN REIT AN rR an ae

the dispute out of which mr unfair Nabe practice shall

have arisen, unless . . . the parties to such dispute” have .

agreed on a method of. adjustment.

The “parties if such dispute” obviously~ refers to the

parties to the “dispute out of which such unfair labor,

practice shall have arisen’; and the employer is neces-

sarily a pakty to that dispute because the unfair labor

practice does not arise until the union takes coercive ac-

tion against the employer to compel him to assign thé

' work to its members.* Thus, the employer is made‘a .

party to the dispute by the very action which makes Sec-

tions &(b) (4) (D)~ and 10(k) operative; the eniployer

is therefore a “party” ‘to the dispute within the meaning

of Section 10(k). : ;

III. Considevetians Of Industrial Realities Compel The-

Conclusion That The Employer Be Recognized As A

Necessary Party To The Dispute =

Employers involved in jurisdictional disputes, particu-

larly in the construction industry, are vitally concerned

with the outcome of work assignment resolutions. “As a

practical matter, few employers are totally unconcerned

_ with what group ‘of employees performs the various jobs -

involved in their business operations.” ’ In many circum-

stances, the employer’s economic interests are directly af-_

6 Surely, the union would not take ei: action unless the employer -

would not comply with the union’s request or the union feared that

-the employer would not. In either case, the union’s coercive action

’ shows that at that time it is involved in an active dispute -with

the employer. :

7 See Comment, The Employer as a Necessary Party to Voluntary

Settlement of Work Assignment Disputes Under Section. 10(k) of

the NLRA, 38 U. Chi. L, Rev. 389, 399-400 (1971).| There are situ-

ations, of course, where the employer is relatively indifferent as to.

which group of employees performs the work. E.g., N.L.R.B. v.

Radio & Television Broadcast Engineers Union (CBS), 364 US.

573 (1961), where the employer was willing to |let either union

involved perform lighting work or to divide up the work between

the. two unions. For the reasons discussed herein, more, such

situations are rare.

LA

a

feted by the determination as td. which group is en-

titled to perform the assignment: indéed, in the construc-

tion industry, this detérmination is often a.matter of eco- “

nomic life-or-death for the individual contractor.

In the construction industry, where most jurisdictional

disputés eccur,® a job is usually obtained through com-

a petitive bidding, oftentimes highly competitive bidding, .

and the profit margin for the contractor is narrow.® The

tontractor’s bid is carefully based ‘on factors relevant to

_ the employeés to\whom he contemplates assigning the work

—i.¢., their wage rates, . their efficiency, their ability to

perform the work at the desiréd quality level, the size of

the crew required by the group, ete. The award of this

work to another group of employees could result in con-

siderably higher costs because of a change in any or all

of these factors, and thereby not only eliminate the con-

financial condition.

employees could ev@n lead to the contractor’s losing the

contract and to interference with stable labor. relations.

_ For example, if, as is often the case, the contractor has

) ' a collective bargaining agreement with a union covering

% particular work and he accordingly assigns: the work to

that union pursuant ‘to the agreement, an award of the

fe work to a stranger union would require the employer ei-

ther to breach his pollective bargaining agreement with the

union, at perhapd

the Act,” or else give up the contract. . Or the increased

é ® Approximately 66 percent of all 8(b) (4) (D) charges filed in -

r

the last fiscal year grew out’ of the construction industry. 34 NLRB

Amn. Rep. 204-205 (1969). . an ae

Settlement of Work Assignment Disputes Under Section 10(k) of

the NLRA, 38 U. Chi. L. Rev. 389, 401 (1971). .

1 Section 301 (29 U.S.C. § 185) grants jurisdiction in any dis-.

trict court of the United States for suits “for violation of contracts

between an employer and a labor organization”. one

. tractor’s profit factor but also seriously jeopardize his ©

Moreover, the award of the work to another group of

e risk of a suit-under Section 301 of .

*Comment, The Employer as a Necessary ‘Party to Voluntary,’ :

>

9

8

“costs of the stranger union alone may require the con-

tractor to abandon the contract. Indeed, for these rea-

sons, Martini~Tile and Terrazzo Co., petitioner in this

- ease, testified here that a change in its usual assignment

of the work in dispute here from Tile Setters to Plas-

_terers would deprive it” of 30 percent of its annual busi-

‘ness (A. 128).

Thus, a contractor’ Ss economic existerice plainly is to a

‘substantial degree affected by the resolution of work as-_

.Signment disputes, and he is vitally interested in the out-

-

come. Moreover, the employer’s interest in factors of

economy, efficiency, productivity,. and the like, are con- _

sonant with the public’s interest in these same factors.

Accordingly, industrial realities dictate that any fair -

and reasonable machinery for the settling of jurisdictional

disputes should -take into consideration these factors.

Indeed, the Second Circuit recently held as much, reject-

ing’ a contention that the NLRB in Section 10(k) deter-

minations ‘should adopt the standards used by the Na-

tional Joint Board for the Settlement of Jurisdictional

Disputes 11 in resolving such disputes: That court, find-.

ing that the Joint Board “gives little weight to consid-

erations of economy and efficiency, and that past prac-

tice. is usually held: determinative”,” affirmed the NLRB’s

on This body; as shown infra’pp. 9-11, was set up by the Building.

Trades Départment, AFL-CIO, after Section 10(k) was enacted, to

resolve jurisdictional disputes in the construction industry.

12 This was recently affirmed by one writer drawing from Joint %

Board Rules and Regulations. “In structuring its awards to best

serve the interests of the constituent members of the Building

’ Trades Department, the Joint Board gives. controlling weight to

prior Joint Board decisions of record and interunion agreements

‘of record. In the absence of such decisions or agreements the award

is determined by the established trade practice or the prevailing

area practice.” Comment, supra n. 9, 38 U. Chi. L. Rev. 389,

401-402 estes Note, 77 Yale L.J. 1191, 1200-1201 n. 52, 1203-

1204 (1968); K. STRAND, JURISDICTIONAL DISPUTES IN

CONSTRBCTION 45 cient?

9

consideration of ,these factors, as follows (N.L.R.B. v.

‘Local 25, 1.B.E.W., 396 F.2d 591, 594 (1968) ): .

It would be surprising, indeed, to find the Board,

' to which is entrusted the protection of the public

interest in this area as*in others, completely disre-

- garding the factors of efficiency and economy in reach-

ing its determination as to assignment of .work. -Nor

is there any authority for such a startling proposi-

tion as that the national labor policy, which the ‘Board

_ is set up to further, requires that considerations of

economy and efficiency in theyemployment of labor be

ignored. : a QQ.

In view of the vital interest of the employer and the

public in the resolution of these disputes upon considera-

_tion of these and other adequate factors, it seems*most °

improbable that Gengress would have intended to require

the NLRB to defer under: Section 10(k) to any dispute-

settling machinery which failed to include the employer

who made the assignnment. The factors of efficiency,

economy, and productivity are peculiarly. within the em-'

ployer’s knowledge; ** therefore, the full participation of

the employer in any dispute-settling process is essential -

to present the evidence relevant to these: factors. Indeed,

this Court has held that under the Railway Labor Act it is

essential to bring all the parties, the railroad and the

unions involved, together to participate in the proceeding

to determine the jurisdictional dispute. Transportation-

Communication: Rmployees Union v. Union Pacific Rail- .

road Co., 385 U.S. 157 (1966). The Court found this es-

sential to a fair hearing to settle such disputes, to which

the “railroad, the employees, and the public, for all of

whose benefit the Railway Labor Act was written, are en-

. titled... .” 885 U.S. at 162. :

Accordingly, considerations of industria] realities and

the interests of the public. compel the recognition of the

employer as a party to any method of adjustment of dis-

putes under Section 10(k) of the Act. |

18 Attleson, The NLRB and Jurisdictional Disputes, 58 Geo. L. J.

98, 111 (1964). ;

IV. The | Céaisuepieaeeses Colatrettion Of The Statute

By Construction Industry Groups Accords With The.

Recognition Of The Employer As A Party To The

Dispute f

Prior to the time Section: 10(k) was added to be Act in

1947, construction unions affiliated with the Building and

Construction ‘I Trades Department utilized an inter-union

“Reteree”’ ‘system for the purpose of the resolution of

jurisdictional dispute between the member unions., This

system, which was put into effect.in 1936, did not provide

tor employer participation in any form. Some earlier .

dispute-settuung bodies in this industry had provided for

employer participation, but these met with opposition

because of the employer’s participation and employers were

excluded from participation as parties in the “Referee”

system."*

Section 10(k) was enacted into law on June 23, 1947,

as part of the Taft-Hartley Amendments, Almost im-.

. mediately thereafter, on July 9, 1947, the Building Trades

Department suspended the “Referee” system. Thereafter,

the Building Trades Department resumed negotiations

_ with employer groups in an effort to devise a workable

‘ plan which would-conform to the requirements of the new-

ly enacted Sections 10(k) and 8(b) (4)(D). Assistance

-in these negotiations was given by NLRB General Coun-

sel Robert Denham, who strongly encouraged, on behalf

of the NLRB, that employers and unions establish ‘some

joint procedure to which: both:.the labor organizations

4K, STRAND, JURISDICTIONAL DISPUTES IN CONSTRUC-

TION: THE CAUSES, THE vOINT BOARD, AND THE NLRB

64-69 (1961).

15 The Department had begun negotiations with employer groups

prior to the passage of the Taft-Hartley. Amendments “to find a

workable way out of the difficulty.” Report of President, Building

Trades Department, 41st Annual Convention (Nov. 10, 1948),

excerpted in Appendix 1(a) to amicus brief of Laborers’ Inter-

national Union. \

il

and the nfémbers of the various employer associations .

would be firmly committed ... .” 2.

On May 1, 1948, these negotiations resulted in the

establishment of a Plan for National Joint Board for

Settlement of Jurisdictional Disputes. This Plan was

executed by employer groups, the Associated General. Con-

tractors’ (“AGC”) and seven specialty contractors as-

_ sociations, and the Building and Construction Trades De-

partment. The Plan called for the establishment of a

Joint Board, with equal representation by employers and

unions in addition to an impartial chairman. And the

_ Plan expressly bound only those employers and unions

_Wwho were stipulated to be bound.by its determinations.”

Accordingly, the industry groups drafting the Joint

Board. Plan recognized that the employer was an indis-

pensable party in the resolution of the jurisdictional dis-

16 Address by Robert Denham, Associated General Contractors’

Annual Convention, Feb. 11, 1948.. . ,

17 See STRAND, JURISDICTIONAL DISPUTES IN CON-

- STRUCTION: THE CAUSES, THE JOINT BOARD, AND THE

' NLRB 89-99 (1961). The Plan provided (Art. V, Sec. 5):

It is understood only those contractors who employ members

of the organizations affiliated with the Building and Construc-.

tion Trades Department of the AFL-CIO, shall be considered as

bound by this agreement when they have signed a stipulation

setting forth that they are, willing to subscribe to and be ‘bound

- by the terms and provisions o this agreement. [Emphasis

added]. | ;

The procedural rules of the Joint Sas iors .as follows (A.

343-344) : oe

These procedures shall apply ‘to: (a) Contractors who employ

members of the organizations affiliated with the Building and

Construction Trades Department, AFL-CIO, and who have

signed a stipulation setting forth that they are willing to be

bound by the terms of the agreement establishing the Joint

Board, or who are members of a signatory association of -con-

tractors with authority ‘to bind its members, or who are parties

to a collective bargaining agreement providing for the settle-

ment of jurisdictional disputes. under the. procedures herein

set forth ....

12

pute, and ‘that in the sbenhee ofan employer stipulation

to be bound to the Joint Board determination, the em-

ployer-was free under Section 10(k) to take the case to

the NLRB even though both unions were stipulated to the

Joint Board. In fact, in briefs, submitted to the NLRB

after almost a decade of operation,. the J oint Board’

. acknowledged that employers are “parties” to jurisdic-

- tional disputes and that the NLRB. must “decide eases

under: 10(k) where the unions involved, but not the

struck employer, — are stipulated to the Joint Board.*®

This contemporaneous construction of the statute ‘by the

various industry groups, unions and employers alike, and

the National Joint Board itself, lends substantial support °

to the construction of the NLRB that the employer is a

_ party to the dispute within the meaning of Section 10(k).

V. The NLRB’s Construction Is Not Inconsistent With |

The Applicable Legislative History

_ The NLRB’s construction of the statute to conclude that _

the employer is a ‘“party” to.a-work-assignment dispute

under Section 10(k) finds clear support in the legis-

lative history of the relevant provisions of the Act. Al-

though there is no direct discussion in the committee re-

ports or the floor debates as to the precise meaning of

the phrase “the parties to such dispute” as used in Sec-

tion 10(k), the-history behind the language used in Sec-

tion 8(b) (4) (D) plainly shows that Congress considered

the employer to be a party to such dispute.

There was no Section 10(k), or similar provision, in

the House bill. ‘That bill flatly prohibited all “jurisdic-

tional strikes” against an employer and granted the em- |

ployer the right to enforce this prohibition through an

injunction and damage suit‘in federal district courts. The

bill defined a jurisdictional strike as any concerted inter-

ference or strike which sought to force the employer to

18 See Brief fe the National Joint Board at 27, 56-60, Acoustica!

Contractors, 119 NLRB 1345 ons

another.?®

* tory of section 10(k) does not afford any substantial

____ the majority opinion is’ demonstrated by its asser-

13

assign the work to one group of employees rather than.

Section 10(k) first appeared in the Senate bill in much

the same formaas it now appears in the act, but, at that

stage it also included a clause which authorized the NLRB

to appoint an arbitrator to hear and determine those.

disputes leading to 8(b)(4)(D) charges. The Senate

passed the bill with the arbitrator provision included in

Section 10(k).” In Conference,- the arbitrator clause .

‘was droppéd and Section 10(k) took its present form, but

without any discussion of the intended reach of the word

“narties”.21 - 2 a

. Thus, the abstention provision of Section 10(k) and its

reach was not discussed. As Judge MacKinnon aptly ex- -

plained in his dissent. in the instant case, the abstention -

provision of Section 10(k), and the scope of “parties” |

as used therein, “attraeted no niatice because it: was always

overshadowed by the provision for the Board to appoint an

arbitrator.” (A. 391).. Accordingly, it is plain that, as

Judge McKinnon further concluded in dissenting below

(A. 392): : _*

The truth of the matter is that the legislative his-

assistance to its interpretation and the weakness of

tion that it does.

, 5 : .

° H.R. 3020, §§2(15) and 12(a), 80th Cong., 1st Sess., pp. 12,

47-50; in 1 Legislative History of the Labor Management Relations iy

Act, of 1947 [hereinaftér cited as “LH” ] 169, 204-207 (1947).

20 H.R. 3020 as passed by the Senate, 80th Cong., 1st Sess., pp. 81-

82, 100-101, in 1 LH 289-241, 258-259 (1947).

71 H.R. Conf. Rep. No. 510, 80th Cong., 1st Sess., p. 57, in 1 LH-

561 (1947): - ve

22'The majority below found support from the legislative history

essentially on two points. First, the court referred to a statement

by. Senator Morse to the effect that Section 10 (k) would encourage

unions to set up machinery within their own ranks for the ‘settle-

J

a eS

<

140

On the other hand, the legislative history of Section

8(b) (4) (D) plainly: shows Congress’ recognition | of the -

employer as a party to the dispute. Section 8(b) (4) {D),

‘as passed by the Senate, proscribed strikes against work .

assignments only where unions were involved;* but the

Conference bill broadened this language to include strikes

against work assignments to unrepresented employees. as

well.* Senator Taft explained that the purpose of this

language was to protect employers from strikes and

picketing by unions to force the employers-to assign work

* to union members rather than to unrepresented employees

for: legitimate reasons.”

7?

ment of vieck controversies (A. 376-377). But in the speech auotel

by the Court, Senator Morse specifically referred to the use of such

machinery for “settling such disputes short of economic action.”

(Emphasis supplied). 93 Cong. Rec. 1910-1911, in 2 LH 982-983

(1947).: Senator Morse was plainly expressing the hope that the

Act’s proscriptions would encourage unions to resolve their dif-

- ferences. prior to taking any strike action; his comments do rot at

all indicate that once strike action was taken the unions should

settle the dispute among themselves without thé employer’s partici-

pation. In fact, the same “incentive” for unions to settle their

disputes short of economic action, and therefore before the Act’s

‘machinery is operative, is equally -present whether or not the em-

~/ ployer is considered a party for purposes of Section 10 (k).

Second, the court referred (A. 377-378) to a sentence i in the House

Conference Report describing 10(k) as authorizing the NLRB to .

determine “disputes between unions giving rise to unfair labor

practices under Section 8(b) (4) (D) (jurisdictional: strikes) . ” But

this sentence may be just as easily read to support the NLRB view,

‘for it plainly shows that 10(k). is not applicable. until a strike im-

plicating the employer has grown out of the dispute, and therefore,

that three parties, the unions and the employer, are involved.

23 That bill made it an unfair labor practice for a labor organi-

zation to strike to require the assignment of work to “members of

a particular labor organization” rather than to “members of

some other labor organization.” H.R. 3020 as passed by the Senate,

80th Cong., Ast Sess., pp. 81-83, in 1 LH 239-241 (1947).

24 The Conferesice bill was enacted into law proscribing strikes

to force. “an.employer to assign particular work to employees in a

particular abor organization or in a particular trade, craft, or class

rather than to employees in another labor oresnyeaven or in another

trade, craft, or class ed

* 2593 Cong? Ree.:7000, in 2 LH 1624 (1947).

Thus, Lenigeeen plainly sieht | to subject to the Act’s

dispute-settling machinery ‘work-assignment disputes be--

tween a union and an employer over the employer’s ‘as-

signment, of particular work tg its own unrepresented

employees. In these circumstances, the dispute is clearly

between the employer and the union. Cf., Local 978,°

United Brotherhood of Carpenters v. Markwell, 305 F.2d

38, 47 (8thCir, 1962) (“... it is clear that those sections

are also applicable when the dispute-might be said to be

solely between an employer and a union”); N.L.R.B. v.

Local 25, I.B.E.W. (Sarrow-Suburban Elec. Co.), 388

_ F.2d 449, 454 (2nd Cir. 1967). And in this circumstance, °

the dispute being between the employer and the union,

it is plain that Congress recognized the employer as one

_of the parties to the dispute for’ the Be of Section

10(k), ; .

Accordingly, since Congress has recognized the. em-

ployer as a party for this purpose, and since there is no

statutory language limiting the application of Section

10(k) to certain situations only, Congress apparently |

considered the employer one of the “parties to*such dis-

putes” for all purposes: under Section 10 (k).

VI. The NLRB’s Consistent Administrative Construction

For More Than Twenty Years Without Congressional

Change Is Entitled to Great Weight And Should be

Affirmed In The Absence, As Here, Of Compelling

Reasons To The Contrary

A. The NLRB Construction Of The Statute In The

Circumstances Is Entitled To Great Weight

As shown supra. pp. 2-5, the NLRB construction of:

the statutory language in question here has been con-

sistently adhered to by that agency for more than twenty

years. From the time the issue was first directly pre-

., sented to it, the NLRB has held that the abstention: pro-

vision of Section 10(k) was not applicable unless the

employer as well as the unions involved had agreed

°

_ cng Tees —— aiden \oe PENT LE ETA TLRS ETE OO Ie eas

16

upon .a method of voluntary adjustment. Los Angeles

Building & Construction Trades Council -(Westinghouse

Elec. Corp.), 83 NLRB 477, 482. n. 7 (1949); Iné@l*Hod

Carriers Union, Local 231 (Middle States Tel. Co.), 91

NLRB 598, 604. (1950) ; United Bhd. of Carpenters, Local

581 (Ora Collard), 98 NLRB 346, 349 (1952). It has

consistently adhered to that construction ever since, Local

532, United Bhd. of Carpenters (D. VW Winkelman Co.),

189 NLRB No. 94 (1971), without challenge by any

court of appeals until the instant case.

In this circumstance, the NLRB construction of the

statutory language is entitled to great wéight. This Court

‘has. held on numerous occasions that a consistent interpre-

tation. of a statute by the agency charged with its ad-:

» ministration is. entitled to great weight. See Udall v..

Tallman, 380 U.S. 1, 16 (1965),.and cases cited therein.

' This is particularly true in a as. here, where

the interprétation involves “contemporaneous construction

of a statute by the men.charged with the responsibility ©

of setting its machinery in motion, of. making the parts

. work efficiently ‘and smoothly while they are yet untried

and new.” United States v.. American. Trucking Ass’n,

310 U.S. 534, 549 (1940) ; Norwegian ‘Nitrogen Products

Co. v. United States, 288 U.S. 294, 315 (1938); accord,

Zemel v. Rusk, 381 U.S. 1; 11 (1965). Accordingly, the

Court has held that a contemporaneous and consistent

construction of the agency should not be overturned where

it is a reasonable and admissible interpretation, even

though there may be other reasonable interpretations of

the language. -Udall v. Tallman, supra, 380 U.S. at 18;

McLaren v. Fleischer, 256 U.S.477, 481 (1921); Uni-

versal Battery Co. v. United States, 281 USS. 580, 583

(1930).

In addition, Gonaiderabia weight should be attached to

the fact that Congress. has never changed the substantive

or procedural provisions of the jurisdictional dispute pro-

visions during the more than 20 years of the NLRB’s

17

interpretation of that language, despite the fact that Con-

gress enacted extensive revisions of the entire Act in 1959 -

and, in particular, réwrote most of the Section 8(b) (4f

_ language. _ From this, “it is a fair assumption that. by re- .

enacting without pertinent modification the provisions

with which we here deal, Congress accepted the construc-

tion placed thereon by the Board. ”” N.L.R.B. v.°

Gullet Gin Co., 340 U.S. 861, 366 (1961); Zemel v. Rusk,

881 U.S. 1, ‘ll- 12 (1965).

_For these. reasons, the amici submit that the NLRB’s

construction of the statute here must be pheld. As

- shown in the preceding sections, the NLRB’s. construc-

tion is reasonably supported in the statutory language,

history, and policies of the Act. Moreover, as we show

below, the reasoning of the court below does not compel

the conclusion that the NLRB interpretation is unreason-

‘ able. :

B. The Reasoning Of The Court Below Does Not Mili-

= tate Against The NLRB’s Construction Of The .

= Statute

In rejecting the NLRB’s - interpretation that the em-

ployer was necessarily a. party to work-assignment dis-

‘putes within the meaning’ of Section 10(k), the court be-

low failed to comprehend the’ Congress’ plain command

26 Contrary to the tourt below, this Court's decision in Boys.

' Markets, Inc.-v. Retail Clerk’s Union, 898 U.S. 235 (1970), does

'- hot militate against attaching persuasive significance to Congress’

-reenactment of Sections 8(b)(4)(D) and 10(k) without change.

‘The Court in Boys Market was concerned with stare decisis, and .

concluded that the “mere silence of Congress is not a sufficient

reason for refusing to reconsider the [earlier] decision.” Moreover,

contrary to this case, there had been no relevant statutory re-

- visions between the decisions of the Court. -Where, as here, there

has been a substantial re-enactment of related statutory provisions

without changing the provision involving the questioned adminis-

trative interpretation, “Congress’ failure to repeal or revise in the ©

face of such administrative interpretation hag:been held to con-

stitute persuasive evidence that the interpretation is the one in-

* tended by Congress.” Zemel v. Rusk,.381 U.S. 1, 11-12 (1965).

>

| sai

»)

- ae

18

and intent as discussed above. Instead, the court rélied

upon plainly erroneous grounds to justify its contrary.

conclusion.

1. The fundamental error by the court below was its

assumption that the jurisdictional dispute provisions were

enacted by Congress to protect only “the employer who

was ‘neutral’ in the dispute” ; and that an “employer has .

standing under these provisions when he is plagued by em-

ployee groups that do not agree, and not when he is dis-

satisfied with the way they do agree’ (A. 383). The

court further conchided in this regard: “The purpose of

protecting the neutral employer is fully served by any

binding settlement between the disputing employee groups.

The neutral employer is one who cares not how the dis-

pute is decided but wants merely that it be decided.” (A

375).

This conclusion is plain errors The literal language

of the statute contains no requirement of employer neu-

trality and the court below made no contention that it

does. Moreover, the NLRB specifically rejected: the ‘con-

tention that Section 10(k) applied only where the em-

ployer was neutral and indifferent to the result in the

first cases brought under Sections 8(b) (4) (D) and: 10

(k): Lodge 68 of the Int'l Ass’n of Machinists (Moore

Drydock Cv.), 81 NLRB 1108, 1114 (1949) ; Int’l Long-

shoremen’s and Warehousemen’s Union, Local 16 (Juneau

Spruce Corp.), 82 NLRB 650 (1949). In Juneau Spruce,

supra, 82 NLRB at 656, the NLRB held in rejecting the

contention:

[I]n the absence of language eudileally limiting the

application of Section 10(k) to certain situations

only, or even persuasive legislative history in sup-

port of such restricted application, the Board is ©

obliged to give effect to that Section which its lan-

guage requires.

Further, any doubt as to whether these provisions

apply where the employer is not neutral and indifferent

.

oA C8 i thie.

19

was surely dispelled by the change in the language of Sec-

tion 8(b)-(4)(D) in Conference to protect, subject to

' the-Act’s provisions, an employer’s assignment to his own

_ unrepresented employees (supra, pp. 13-14). Plainly,

in that situation, Congress was not merely seeking to

protect a neutral plagued by two unions who cannot

agree, but was protecting, subject to a 10(k) determina-

tion, the employer’s active interest in assigning work to a

particular group of his own employees.

Finally, as shown above (pp. 5-8), as a matter of

industrial’ reality the employer is seldom neutral and

indifferent to the resolution of the dispute, but instead

has a vital interest in the assignment of work to a par-

ticular group of employees. In the absence of disposi-

tive legislative history to the contrary, it must be as-

sumed that Congress recognized that reality and sought to

give effect to the protection of that interest under the

statutory scheme.’ ; |

| 2. The court below sought. t6 supports its interpreta-

tion from the text of Section 10(k). The court’s basic

conclusion (A. 371) was that the words “the parties to

such dispute” in 10(k) referred to the parties to the

underlying dispute, which the court found to be the rival

unions. However, this conclusion ignores ‘the facts, as

discussed above (pp. 18-14), that the underlying dis-

pute in some cases, as Congress recognized, is between

one. union and the employer, and that the “dispute out

of which such unfair labor practice shall have arisen”

(the statutory language) is the dispute which causes a

union to strike because the employer failed to acquiesce -

in the union’s request for the assignment to its members. _

*7 See Comment, supra n. 7, 88 U. Chi. L. Rev. 389, 897-398

(1971), where the court’s neutrality requirement, after examination

in detail, was found wanting. The author concluded: “Fhe lack of

Significant legislative or executive comment on the neutrality issue

makes it difficult to escape the conclusion that the problem was never

- really considered in the 10(k) context.” - .

@

20°

- In addition, the court argued (A. 371) from the statu-

tory language that Congress could easily have made the

employer a party, if that had been its intent, by express

language.. But this argument carries no persuasive im-

- pact for’ the court’s view: Congress could also have writ-

ten Section 10(k) so as to limit the necessary parties

specifically to the rival labor groups invelved, but-it failed

to do so. The failure of Congress to make its intent.

clear by express language provides no proof of intent

either way.

Also, the court found “persuasive evidence” for its

interpretation in. the fact that the employer is not bound

under the Act to follow a 10(k) determination (A. 371).

But the scheme of the Act does not bind any of the parties

to a 10(k) determination. A union which exerts strike

pressure in the face of an adverse 10(k) determination

can have the 10(k) award applied against it only through

an order under Section 8(b) (4) (D), which would require

that the picketing cease and desist. But the same eco-

nomic sanction is available against: the employer where he

chooses to ignore a 10(k) determination, for there the

union receiving the favorable award can freely strike or

picket that. employer without violating Section 8(b) (4)

(D). See Local 502, Intl Hod Carriers. (Cement-Work, |

Inc.), 140 NLRB 694 (1968). Accordingly, the em- —

ployer is bound in a very meaningful sense.

3. The court below also found support for its position .

in the NLRB’s Safeway doctrine (A. 383-384). In Safe-

way and similar cases, the NLRB has dismissed a 10(k)

proceeding upon finding that one of the unions has re-

nounced any claim to the work in question. This prac-

tice does not indicate that the NLRB has accepted a

voluntary adjustment by the unions, but rather indicates

that a necessary requisite of a jurisdictional dispute—

28 Teamsters Local 107 (Safeway Stores, Inc.), 184 NLRB 1820

(1961); Local 1905, Carpet Linoleum Layers (Butcher and

Sweéney Constr. Co.), 143 NLRB 251 (1963).

21

the existence of conflicting claims to the work—is absent. |

- Under this doctrine the NLRB does not bind the. employer

to assign the work to the non-renouncing union; the em-

ployer may well assign the .work to a third group of

employees. —

Thus, the NLRB’s Safeway doctrine does not lend sup-

port to the court’s view that the eniployer is not a nec-

essary party to a jurisdictional dispute within Section

10(k). The NLRB has applied this doctrine to determine

whether in fact a jurisdictional dispute exists, i.e., wheth-

‘er there is a real dispute; ° it provides no support for

determining whether the employer should be a party to the

resolution once a real dispute is found to exist. ;

4. Nor is the -court’s position aided by its reliance

upon “the general principle that full scope-should be given.

to voluntary arbitration procedures” (A. 381). The ques-

tion here is not whether arbitration is desirable, but who

should. be a party to the arbitration. Plainly, arbitration

is not desirable where it would have a direct effect on

the interests of a-person not a party to the arbitration.

See Retail Clerks Local 770 v. Thrifty Mart, 59 Cal. 2d

421, 423-424, 380 P.2d 652, 655-656 (1963) (holding,

per J. Traynor, that there can be no “valid arbitration

7 award in the absence of a party directly affected by the

~ award”); Retail Clerks Local 428 v. L. Bloom & Sons,

173 Cal. App. 2d 701, 708, 344 P.2d 51, 52-53 (1959).

Moreover, the NLRB’s interpretation does. give full

scope tc voluntary arbitration within the meaning of this

Court’s decision in Carey v. Westinghouse Corp., 375

US. .261 (. 1964). The NLRB position in no way pre-

22 The NLRB and the courts have applied the Seiewes doctrine

narrowly. Explicit disclaimers have been held non-dispositive in .

circumstances. which inferentially belie the disclaimer. See Local

1291, ILA, 152 NLRB 676 (1965), enforced, 368 F.2d 107 (8rd

Cir. 1966) (disclaiming union had a contract with the employer

covering the work) ; Plumbers Local 525,-178 NLRB No. 208 ( nee

( disclaiming employees continue to do the work).

22

cludes the unions involved from attempting to resolve

the dispute through binding arbitration procedures such

. as the National Joint Board. And indeed, resort to such

arbitration may well resolve the dispute even though the

employer is not included in the arbitration procedure or .

bound to the result.*° But even if the arbitration pro-

cedure does not resolve the dispute, Carey recognizes that

the policy favoring arbitration does not preclude the ©

NLRB from determining the issue. 375 U.S. at 272.

5. Finally, the weakness of the court’s analysis is

shown by its hedging acknowledgment that its position

might not apply in a situation where the voluntary ad-

justment proceeding failed to make “realistic provision

for meaningful attention .to the interest of the employer,

and to questions of efficiency”. (A. 384-385 and n. 27).

This statement is wholly inconsistent with the court’s posi-

tive assertions throughout its opinion that Congtess’ in-

tent. in 10(k) was to protect the neutral employer from

the quarreling unions and. that this was “fully served by

any binding settlement between the disputing employee

groups.” (A. 375). .

In any event, there is serious question as to the ac-

curacy of the court’s conclusion ‘that the National Joint

Board does make “realistic provision for meaningful at-

tention to the interests of the-employer and to questions

of efficiency’ and is therefore the kind of “private-order-

ing mechanism. for the resolution of jurisdictional dis-

putes” permissible under its view of the Act to require

“the NLRB to abstain from asserting jurisdiction under

10(k). The Second Circuit has foun the contrary

that the “Joint Board gives little weight onsiderations »

of economy and efficiency, and that past practice is us-

ually held determinative.” N.L.R.B. v. Local 25, I1.B.E.W.,

30 For examplé, the employer may recognize the wisdom of,the

arbitral determination and abide by it. Or, the determination may

be against the striking union and the union relinquishes its claim

far the work. \y

. C~ "7

\

* > . :

\

\

NERD IE CA ERIE AS LEE LT EE ILD, EE LOIN LEE : *

\ >

(23

396 F.2d 591, 594 (1968). Commentators have made .

the same point. See K. STRAND, JURISDICTIONAL ©

DISPUTES IN CONSTRUCTION 45 (1961) ; Comment,

supra n. 9, 88 U. Chi. L. Rev. 389, 401 (1971) (“...

. its decisions tend to- reflect purely union interests.”) ; —

Note, The NLRB and Deference to Arbitration, 77 Yale

L.J. 1191, 1200-1201 n. 52 (1968). + -. 2

Thus, Joint Board determinations are often made by

reliance upon ancient and outmoded inter-union agree-

ments and decisions of record, some dating back to early

1900’s. Indeed, in this case, the Joint Board award was

made in reliance upon a 1917 agreement between the In-

ternational Unions involved and a°1924 decision inter-

preting the agreement (A. 316, 341-342), although the

dispute involved a method of applying tile which was _

developed in recent years (A. 18-19, 110, 363).

“As a result of this practice and the failure to heed

essential managerial - -considerations, many employer

groups, including the Associated General Contractors

which had a primary responsibility in negotiating the

first Joint Board,?! have now withdrawn from the Joint

Board Plan. ‘ None of the associations participating in

this amicus brief are: stipulated to the current Joint

Roard. |

Thus, the court plainly erred in concluding that the

Joint Board meaningfully takes into account managerial

factors of economy and efficiency. This error is of sig-

a ; ;

31 The AGC and'seven specialty contractor associations were the

first employer groups stipulated to the Joint Board procedures.

“This Joint Board Plan terminated in 1969 when the AGC and four |

specialty contractor associations were unable, after lengthy nego-

‘tiations, to secure certain reforms in the existing plan. The AGC

later refused to become signatories to a new Joint Board Plan

which went into effect on April 3, 1970. Other specialty contractor

associations.including International Association of Wall and Ceil-

ing Contractors, Mason Contractors Association, and National Roof-

ing Contractors Association, amhici here, withdrew years earlier, as_

did the Tile Contractors Association, petitioner in No. 1231.

24

nificant importance, for it emphasizes what the court

itself plainly indicated (A. 384-885), i.e., that there is _

doubt as to whether its analysis should apply in the face.

of a volyntary adjustment procedure that is “subject

to an a ae that undercut its fairness and reliability

384). This admission of doubt itself. under-

mines i court’s entire analysis, for neither the language

of the Act nor. its legislative history indicates that the

-work-assignment dispute provisions should be interpreted —

differently as differing circumstances appear. Moreover,

the error highlights the plain fact that an employer has \a

direct interest in the resolution of work assignment dis-

putes upon consideration of relevant managerial factors,

and any controlling resolution of that dispute without his

participation is subject to the infirmity of fundamental

unfairness. See Retail Clerks Local 770 v. Thrifty Mart, .

59 Cal. 2d 421, 428-424, 380-P.2d 652, 655-656 (1963).

Accordingly, the NLRB’s construction of the Act to re-

quire the employer to be bound to any voluntary adjust-:

ment of the dispute under the abstention provision of 10

(k) is plainly preferrable to the court’s analysis in that it

provides substantive protection for all parties in interest

involved in the dispute, and thereby comports with the

requirements of fundamental fairness. .

25 |

- CONCLUSION

nas ‘

*

: .

>

.

For the forexoing reasons, the judgment of the court

below. should be reversed.

Raseitaly submitted, |

- ere

JOSEPH M. STONE

' 815: Fifteenth Street, N.W.

Washington, D. C. 20005

GEORGE L.’ PLUMB

135 South LaSalle Street

Chicago, Illinois 60603

' BeTTy SOUTHARD MURPHY

' 7 Suite 1032; eae aiid

| Building: —

13th & Pennsylvania -

- Avenue, N.W.

‘Washington, D. C. 20004

May 27, 1971