ASSOCIATED GEN. CONTR. OF AM., EVANSVILLE CHAP. v. NLRB

• Decision Date: 17 July 1972
• Docket Number: 71-1575.,No. 71-1480,71-1480
• Parties: ASSOCIATED GENERAL CONTRACTORS OF AMERICA, EVANSVILLE CHAPTER, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL UNION NO. 103, INT'L ASS'N OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, etc., et al., Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

465 F.2d 327 (1972)

ASSOCIATED GENERAL CONTRACTORS OF AMERICA, EVANSVILLE CHAPTER, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL UNION NO. 103, INT'L ASS'N OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, etc., et al., Respondents.

Nos. 71-1480, 71-1575.

United States Court of Appeals, Seventh Circuit.

Argued April 4, 1972.

Decided July 17, 1972.

Rehearing Denied September 15, 1972.

COPYRIGHT MATERIAL OMITTED

Winthrop A. Johns, Lawrence T. Zimmerman, Washington, D. C., Joseph A. Yocum, Evansville, Ind., Kenneth J. Clerk for Associated Gen. Contractors of America, and Local Union No. 103; Johns & Zimmerman, Washington, D. C., of counsel.

Sydney L. Berger, Evansville, Ind., for Local Union No. 103 and Charles Tremper.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore and Julius Rosenbaum, Attys., N.L.R.B., Washington, D. C., Peter G. Nash, Gen. Counsel, for N.L. R.B.

Before CUMMINGS and STEVENS, Circuit Judges, and CAMPBELL, Senior District Judge.¹

CUMMINGS, Circuit Judge.

The first of these cases arises on the petition of Associated General Contractors of America, Evansville Chapter, Inc. ("Association") to review the Board's order reported in 190 NLRB No. 145. The other case comes here upon the Board's petition to enforce the order. In the Labor Board proceedings, the Association was the charging party. It is a corporation comprised of employers engaged in the building and construction industry, and it represents them in collective bargaining with labor organizations, including the Iron Workers' Union.²

Over the years, the Association has negotiated collective bargaining contracts with the Union, and these contracts have been adopted by its employer-members as well as non-member contractors employing iron workers in the Evansville, Indiana, area. The most recent contract between the Association and Union was in effect from April 1, 1967, to March 31, 1970, and Article VIII thereof carried forward a previous contractual provision requiring the submission of jurisdictional disputes to the National Joint Board for the Settlement of Jurisdictional Disputes ("National Joint Board"). The National Joint Board was comprised of an equal number of employer and union designates under the chairmanship of an impartial member. The Association and the Union were then represented on the National Joint Board through their parent organizations.³

The National Joint Board was dissolved in September 1969. The Association then advised Charles Tremper, the Union's Business Agent, that the Association and its parent would not be parties to any agreement establishing a new joint board, nor did they agree to participate in the Interim Joint Board which was formed in late 1969 to replace the National Joint Board. On the ground that its parent would not permit the Local to be a party to an area board, the Union refused to discuss an Evansville facility to settle jurisdictional disputes, as suggested by the Association.

In February 1970, the Association and Union began to negotiate a new contract. They discussed Article VIII of the previous contract. That article, dealing with craft jurisdiction, provided:

"It is agreed that the jurisdiction of work covered by this Agreement is that provided for in the Charter Grant issued by the American Federation of Labor to the International Association of Bridge, Structural and Ornamental Iron Workers, it being understood that the claims are subject to Trade Agreements and final decisions of the AFL-CIO, as well as the decisions rendered by the National Joint Board for the Settlement of Jurisdictional Disputes.

"The parties to this Agreement are subject to and agree to be bound by all decisions and awards made by the National Joint Board for Settlement of Jurisdictional Disputes with respect to all jurisdictional disputes which may arise under this Agreement."

The Association informed the Union that it would not agree to such an article in the new contract because the National Joint Board had been dissolved and the Association's parent was not a party to the Interim Joint Board. In turn, the Union told the Association that the contract would have to provide for the resolution of jurisdictional disputes by the Interim Joint Board or its successor.⁴ The Association's alternative was that in the event of a jurisdictional dispute, local representatives of the parties would meet to settle it, or if the Association's parent and the Building and Construction Trade Department, AFL-CIO, agreed to a voluntary plan for the settlement of jurisdictional disputes, the plan would be effective immediately as to the Association and the Union. At subsequent negotiating sessions, the Union insisted on the Association's submitting to the Interim Joint Board or the new National Joint Board, whereas the Association opposed such a provision because its parent was not a party thereto. On March 31, 1970, the parties agreed that they had reached an impasse with respect to this subject, and the collective bargaining contract expired at midnight. The next morning the Association's member employers were struck by the Union, and the work stoppages were still in effect at the time of the July 7, 1970, hearing before the trial examiner.

After the strikes had occurred, various meetings were held by the parties, but they again could not agree on the jurisdictional dispute issue. At one of these meetings, the Union offered a "substitute" for the former provision providing for the settlement of jurisdictional disputes by the National Joint Board, but the substitute was substantially identical to Article VIII.⁵ The Association therefore refused to accept it and offered various counter-proposals that were refused by the Union.

On April 29, 1970, the local Building and Construction Trades Council, chaired by Union Business Agent Tremper, passed a resolution insisting that its affiliates and all contractors must abide by the decisions of the new National Joint Board that had been formed that month without Association representation. The resolution was adopted to cause the Association to agree to the National Joint Board method of resolving jurisdictional disputes. On May 14, 1970, Tremper told the press that the issue of the National Joint Board for the settlement of jurisdictional disputes was more important than money, and that the iron workers had not yet discussed wage issues with the Association. Wages were eventually discussed at the final negotiating meeting on June 29, 1970, but the Association's offer of a wage increase was rejected by the Union.

The Trial Examiner concluded that the Union's bargaining to the point of impasse and then striking to compel the Association "to agree that any jurisdictional disputes be resolved by a board on which the Association * * * had no representation" contravened Section 8(b) (1) (B) of the Act (29 U.S.C. § 158(b) (1) (B)), making it an unfair labor practice for a labor organization to restrain or coerce an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances. He also concluded that the Union's insistence on the inclusion of a provision in the collective bargaining agreement for the resolution of jurisdictional disputes by the Interim Joint Board or the new National Joint Board violated Section 8(b) (3) of the National Labor Relations Act (29 U.S.C. § 158(b) (3)), making it an unfair labor practice for a labor organization to refuse to bargain collectively with an employer, because such a provision was a non-mandatory subject to collective bargaining.⁶ In contrast, the Board found that the Union's demand was a mandatory subject for bargaining and that the Union's insistence upon it and striking for it did not violate Section 8(b) (1) (B). However, the Board concluded that the Union's position on this subject was not open-minded but was fixed and inflexible and contrary to its duty to bargain in good faith and therefore constituted an unfair labor practice under Section 8(b) (3). Accordingly, the Union and its business agent were required to cease and desist from refusing to bargain with the Association with regard to the resolution of jurisdictional disputes, and the Union was ordered to notify the Association that "it will not refuse to bargain with the Association on the resolution of jurisdictional disputes," and to post notices to this effect. In dissenting in part, two of the five Board members expressed the view that Section 8(b) (1) (B) had been violated, whether or not the proposal for submission of jurisdictional disputes to the Interim or new National Joint Boards was a mandatory subject of bargaining.

Sections 8(b) (1) (B) Violation

As shown, the Trial Examiner found that the Union had restrained or coerced an employer in the selection of his representatives for the purpose of collective bargaining or the adjustment of grievances in violation of Section 8(b) (1) (B) by "bargaining to the point of impasse and then striking to compel it Association * * * to agree that any jurisdictional disputes be resolved by a board" on which none of the management representatives was chosen or designated by the Association. In agreement with the Trial Examiner and with the two dissenting members of the Labor Board, we hold that Section 8(b) (1) (B) was violated by this demand.

The statutory phrase "adjustment of grievances" is clearly broad enough to include adjusting jurisdictional disputes.⁷ Nothing in the statute or its history demonstrates that Congress intended to tolerate coercing the designation of adjustment representatives not of the employer's own choosing where the subject matter of the grievance happens to be a jurisdictional one. Neither the Board nor the Union has shown why "adjustment of grievances" encompassed by the Section should be interpreted to exclude the adjustment of jurisdictional disputes....