Bricklayers, Masons & Plasterers Int. U. of Am. v. NLRB

• Decision Date: 01 March 1973
• Docket Number: 72-1254.,No. 72-1117,72-1117
• Citation: 475 F.2d 1316
• Parties: BRICKLAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BRICKLAYERS, STONE MASONS, MARBLE MASONS, TILE SETTERS AND TERRAZZO WORKERS, LOCAL UNION NO. 1 OF TENNESSEE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

475 F.2d 1316 (1973)

BRICKLAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BRICKLAYERS, STONE MASONS, MARBLE MASONS, TILE SETTERS AND TERRAZZO WORKERS, LOCAL UNION NO. 1 OF TENNESSEE.

Nos. 72-1117, 72-1254.

United States Court of Appeals, District of Columbia Circuit.

Argued December 1, 1972.

Decided March 1, 1973.

Laurence Gold, Washington, D. C., for petitioner in No. 72-1117 and respondent in No. 72-1254. J. Albert Woll, Washington, D. C., also entered an appearance for petitioner in No. 72-1117 and respondent in No. 72-1254.

Avrum M. Goldberg, Atty., National Labor Relations Board, with whom Marcel Mallet-Prevost, Asst. General Counsel, and Joseph E. Mayer, Atty., National Labor Relations Board were on the brief for petitioner in No. 72-1254 and respondent in No. 72-1117.

Before FAHY, Senior Circuit Judge, and WRIGHT and WILKEY, Circuit Judges.

FAHY, Senior Circuit Judge:

A jurisdictional dispute arose between the tile setters and bricklayers of a local union, the Bricklayers, Stone Masons, Marble Masons, Tile Setters and Terrazzo Workers Local Union No. 1 of Tennessee, an affiliate of the Bricklayers, Masons and Plasterers International Union of America (hereinafter referred to as the Unions). The dispute concerned the right to install acid proof paver floors for the Shelby Marble & Tile Co., a contractor employed in construction at the Joseph Schlitz Brewing Co., Memphis, Tennessee.

The employer, Shelby, filed an unfair labor practice charge under the National Labor Relations Act, as amended, 29 U.S.C. § 151 et seq. (1970), that the Unions had violated section 8(b)(4)(ii)(D) of the Act¹ by engaging in prohibited activity with an object of forcing or requiring Shelby to assign the work to the bricklayers rather than to the tile setters. Shelby had assigned the work to the latter.

The Board first initiated a proceeding to resolve the jurisdictional dispute, as required by section 10(k) of the Act.² Upon the basis of the evidence adduced at the hearing the Board itself, without a recommended decision by the Trial Examiner, which was requested by the Unions, decided the jurisdictional dispute in favor of the tile setters. The prohibited activity continuing an unfair labor practice complaint was issued against the Unions. Since no additional evidence was sought to be introduced respecting the prohibited activity the Board granted its General Counsel's motion for summary judgment that the Unions were in violation of section 8(b)(4)(ii)(D) of the Act "by attempting to force or require the Employer to assign the work . . . to bricklayers . . . ." An appropriate cease and desist and notice-posting order was issued. The Board petitions under section 10(e) of the Act for enforcement of its order and the Unions petition under section 10(f) for its review. We grant the petition of the Board.

I

The Unions contend that the Board erred in deciding the jurisdictional dispute without a recommended decision of the Trial Examiner who received the evidence at the section 10(k) hearing. With certain stated exceptions the Administrative Procedure Act (A.P.A.) requires such a recommended decision "in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing . . . .", 5 U.S.C. § 554(a), "when the agency makes the decision without having presided at the reception of the evidence . . . ." 5 U.S.C. § 557(b). An adjudication is defined as "agency process for the formulation of an order," 5 U.S.C. § 551(7).

From the foregoing it appears that, except as to certain rules not now relevant,³ only if a section 10(k) determination is an adjudication within the meaning of section 554 would a recommended decision have been required.⁴ We hold that a determination in a section 10(k) proceeding is not an adjudication within the meaning of 5 U.S.C. § 554. The term, it is true, is used ordinarily in contrast to "rulemaking":

"Adjudication" has not been defined generally in statutes, except by implication or reference to particular subjects and orders. However, since there are only two basic types of administrative justice—rulemaking and adjudication—the words "other than rulemaking" serve to make the essential distinction.⁵

Nevertheless, it does not encompass all forms of agency action other than rulemaking. If the action in question does not lead to a "final disposition" by the agency, it may not be an adjudication.⁶ Moreover, while there is an explicit exclusion of a "certification of worker representatives"⁷ from the requirement of a recommended decision, indicating that otherwise it might be considered an adjudication, this exclusion may have been due simply to recognition that such certifications, which "rest so largely upon an election or availability of an election,"⁸ had previously been held by the Supreme Court not to be adjudicatory like a final order of the Board in an unfair labor practice proceeding.⁹ American Federation of Labor v. NLRB, 308 U.S. 401, 408-412, 60 S.Ct. 300, 84 L.Ed. 347 (1940).¹⁰ That decision it is true was only that a certification of representatives was not an "order" reviewable under the particular statutory scheme of the Labor Act, but it nevertheless has some relevance to our problem because of the similarity between the nature of a section 9 representation proceeding and a proceeding under section 10(k). An intermediate report by the examiner is not required in the former for reasons applicable to the latter:

The need for intermediate reports, to the extent that they provide a method for obtaining the judgment of the trial examiner on issues of fact dependent for their resolution upon the demeanor of witnesses, is rarely present in a representation proceeding. The evidentiary material relates to economic facts such as the nature of the employer\'s business, the duties of certain employees, and the history of collective bargaining in the plant. Issues of credibility are rarely present.¹¹

For comparable reasons the Board adopted the same practice in section 10(k) hearings shortly after that section followed section 9 into the Act, subsequent to the enactment of the A.P.A.¹²:

The Board adopted such procedure because the decision in the proceedings under Section 10(k) is a preliminary administrative determination made for the purpose of attempting to resolve a dispute within the meaning of that section; the unfair labor practice itself is litigated at a subsequent hearing before a Trial Examiner in the event the dispute remains unresolved. It is to the subsequent adversary hearing, which leads to a final Board adjudication, that Section 8 section 557 of the Administrative Procedure Act applies.

National Union of Marine Cooks and Stewards (Irwin Lyons Lumber Co.), 83 N.L.R.B. 341 (1949).

In NLRB v. Plasterers' Union No. 79, 404 U.S. 116, 122, n. 10, 92 S.Ct. 360, 365, 30 L.Ed.2d 312 (1971) the Supreme Court appraised section 10(k) in like manner:

The § 10(k) determination is not binding as such even on the striking union. If that union continues 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 can 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) determination. 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) hearing 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(b)(4)(D) violation has occurred, while in the § 8(b)(4)(D) proceeding itself the Board must find by a preponderance of the evidence that the picketing union has violated § 8(b)(4)(D). International Typographical Union, 125 N. L.R.B. 759, 761, n. 5 (1959).

The non-adjudicatory character of the section 10(k) determination is indicated by the relationship between a jurisdictional dispute, a decision with respect to it, and the relevant section 8(b)(4)(ii)(D) unfair labor practice. The threat to or coercion of the employer which gives rise to the charge of the unfair labor practice is sought by Congress through section 10(k) to be ended so that the work can proceed. Voluntary settlement is encouraged. If this does not eventuate, hope remains that the ensuing determination of the dispute by the Board will solve the matter. If it is accepted by the union which has been charged with violating section 8(b)(4)(ii)(D), no unfair labor practice complaint issues against the union. Though acceptance of the Board's solution is not required, it is persuasively encouraged because, otherwise, a complaint does issue. Then the question is whether the prohibited conduct has continued, not whether the Board's determination is complied with.

The Supreme Court has explained the matter as follows:

But the § 10(k) decision standing alone, binds no one. No cease-and-desist order against either union or employer results from such a proceeding; the impact of the § 10(k) decision is felt in the § 8(b)(4)(D) hearing because for all practical purposes the Board\'s award determines who will prevail in the unfair labor practice proceeding. If the picketing union persists in its conduct despite a § 10(k) decision against it, a § 8(b)(4)(D) complaint issues and the union will likely be found guilty of an unfair labor practice and be ordered to cease and desist. On the other hand, if that union wins the § 10(k) decision and the employer does not comply, the employer\'s § 8(b)(4)(D) case evaporates and the charges he filed against the picketing union will be dismissed. Neither the employer nor

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