National Labor Relations Board v. Plasterers Local Union No 79, Operative Plasterers Cement Masons International Ass Texas State Tile Terrazzo Co v. Plasterers Local Union No 79, Operative Plasterers Cement Masons International Ass 8212 63, 70 8212 65

Decision Date06 December 1971
Docket NumberAFL-CIO,Nos. 70,s. 70
Citation30 L.Ed.2d 312,92 S.Ct. 360,404 U.S. 116
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. PLASTERERS' LOCAL UNION NO. 79, OPERATIVE PLASTERERS' & CEMENT MASONS' INTERNATIONAL ASS'N,, et al. TEXAS STATE TILE & TERRAZZO CO., Inc., et al., Petitioners, v. PLASTERERS' LOCAL UNION NO. 79, OPERATIVE PLASTERERS' & CEMENT MASONS' INTERNATIONAL ASS'N,, et al. —63, 70—65
CourtU.S. Supreme Court
Syllabus

Two unions, the Plasterers and the Tile Setters, in accordance with procedures binding them to arbitrate, submitted to a board their jurisdictional dispute over work to be done for a contractor. The board awarded the work to the Plasterers. When the contractor and the Tile Setters refused to abide by the arbitration board's decision, the Plasterers, to force reassignment of the work, picketed that contractor as well as another contractor employing members of the Tile Setters. Neither contractor was subject to the arbitration agreement. Charges were thereupon filed against the Plasterers for allegedly violating § 8(b)(4)(D) of the National Labor Relations Act, and a hearing to resolve the dispute was held under § 10(k), which directs the National Labor Relations Board (NLRB) to 'hear and determine the dispute out of which (the alleged) unfair labor practice (has) arisen' unless 'the parties to such dispute' agree upon a settlement. The NLRB, after weighing the arbitration board's decision 'and all (other) relevant factors,' awarded the work to the Tile Setters. When the Plasterers refused to abide by the award, a § 8(b)(4) (D) complaint was filed against them and they were found to have violated that provision. Both contractors, which had collective-bargaining agreements with the Tile Setters (but not with the Plasterers) and had been employing members of that union to perform the operation involved in the jurisdictional dispute, contended that it was far more efficient for them to use tile setters than plasterers. The Court of Appeals on review set aside the NLRB's order, holding that it is not the employer but the rival unions that are parties to the jurisdictional dispute to which § 10(k) applies. Held The employers here, both of which had substantial financial stakes in the outcome of the § 10(k) proceeding, were 'parties to the dispute' within the meaning of that provision and the NLRB was empowered to determine the jurisdictional dispute under that provision in this case where the competing unions, but not the employers, had agreed upon a voluntary method of adjustment. Highway Truckdrivers, Local 107 (Safeway Stores, Inc.), 134 N.L.R.B. 1320, distinguished. Pp. 123—137.

142 U.S.App.D.C. 146, 440 F.2d 174, reversed.

Norton J. Come, Washington, D.C., for National Labor Relations Bd.

Wayne S. Bishop, Washington, D.C., for Texas State Tile & Terrazzo Co., Inc. and others.

Donald J. Capuano, Washington, D.C., for respondents.

Laurence Gold, Washington, D.C., for the American Federation of Labor and Congress of Industrial Organizations, as amicus curiae.

Mr. Justice WHITE delivered the opinion of the Court.

When a charge is filed under § 8(b)(4)(D) of the National Labor Relations Act, as amended, the provision1 banning so-called jurisdictional disputes, the Board must under § 10(k) 'hear and determine the dispute out of which (the) unfair labor practice shall have arisen, unless * * * the parties to such dispute' adjust or agree upon a method for the voluntary adjustment of the dispute.2 The issue here is whether an employer, picketed to force reassignment of work, is a 'party' to the 'dispute' for purposes of § 10(k). When the two unions involved, but not the employer, have agreed upon a method of settlement, must the Board dismiss the § 10(k) proceedings or must it proceed to determine the dispute with the employer being afforded a chance to participate?

I

Texas State Tile & Terrazzo Co. (Texas State) and Martini Tile & Terrazzo Co. (Martini) are contractors in Houston, Texas, engaged in the business of installing tile and terrazzo. Both have collective-bargaining agreements with the Tile, Terrazzo and Marble Setters Local Union No. 20 (Tile Setters) and have characteristically used members of the Tile Setters union for laying tile and also for work described in the collective-bargaining contract as applying 'a coat or coats of mortar, prepared to proper tolerance to receive tile on floors, walls and ceiling regardless of whether the mortar coat is wet or dry at the time the tile is applied to it.'3

This case arose when Plasterers' Local Union No. 79, Operative Plasterers' and Cement Masons' International Association of Houston, Texas (Plasterers), picketed the job sites of Texas State and Martini claiming that the work of applying the mortar to receive tile was the work of the Plasterers' union and not of the Tile Setters.4 Neither Texas State nor Martini had a collective-bargaining contract with the Plasterers or regularly employed workers represented by that union.

Before the Texas State picketing began, the Plasterers submitted their claim to the disputed work to the National Joint Board for Settlement of Jurisdictional Dis- putes (Joint Board), a body established by the Building Trades Department, AFL-CIO, and by certain employer groups.5 Both the Plasterers' and the Tile Setters' locals were bound by Joint Board decisions because their international unions were members of the AFL-CIO's Building Trades Department. Neither Texas State nor Martini had agreed to be bound by Joint Board procedures and decisions, however. The Joint Board found the work in dispute to be covered by an agreement of August 1917, between the two international unions, and awarded the work to the Plasterers.6 When Texas State and the Tile Setters refused to acquiesce in the Joint Board decision and change the work assignment, the Plasterers began the picketing of Texas State which formed the basis for the § 8(b)(4)(D) charges. The Plasterers also picketed a jobsite where Martini employees, members of the Tile Setters, were installing tile, although this dispute had not been submitted to the Joint Board.

Martini and Southwestern Construction Co., the general contractor that had hired Texas State, filed § 8(b)(4)(D) unfair labor practice charges against the Plasterers, and the NLRB's Regional Director noticed a consolidated § 10(k) hearing to determine the dispute.7 Southwestern, Texas State, Martini, and the two unions participated in the hearing. A panel of the Board noted that the Tile Setters admitted being bound by Joint Board procedures, but deemed the Joint Board decision to lack controlling weight,8 and 'after taking into account and balancing all relevant factors' awarded the work to the Tile Setters.9 When the Plasterers refused to indicate that they would abide by the Board's award, a § 8(b)(4)(D) complaint was issued against them, and they were found to have committed an unfair labor practice by picketing to force Texas State and Martini to assign the disputed work to them.10 In making both the § 10(k) and § 8(b)(4)(D) decisions, the Board rejected the Plasterers' contention that even though the employer had not agreed to be bound by the Joint Board decision, the provisions of § 10(k) precluded a subsequent Board decision because the competing unions had agreed upon a voluntary method of adjustment.

On petition to review by the Plasterers and cross petition t enforce by the Board, a divided panel of the Court of Appeals set aside the order of the Board.11 It held that: 'It is not the employer but the rival unions (or other employee groups) who are the parties to the jurisdictional dispute contesting which employees are entitled to seek the work in question.'12 It concluded that the Board may not make a § 10(k) determination of a jurisdictional dispute where the opposing unions have agreed to settle their differences through binding arbitration. Both the Board and the employers petitioned for certiorari, and we granted the petitions.13

II

Section 8(b)(4)(D) makes it an unfair labor practice for a labor organization to strike or threaten or coerce an employer or other person in order to force or require an employer to assign particular work to one group of employees rather than to another, unless the employer is refusing to honor a representation order of the Board. On its face, the section would appear to cover any union challenge to an employer work assignment where the prohibited means are employed. National Labor Relations Board v. Radio & Television Broadcast Engineers Union, Local 1212, 364 U.S. 573, 576, 81 S.Ct. 330, 332, 5 L.Ed.2d 302 (1961) (hereinafter CBS). As the charging or intervening party, the employer would normally be a party to any proceedings under that section. 14 Section 8(b)(4)(D), however, must be read in light of § 10(k) with which it is interlocked. CBS, supra, at 576, 81 S.Ct., at 332. When a § 8(b)(4)(D) charge is filed and there is reasonable cause to believe that an unfair labor practice has been committed, issuance of the complaint is withheld until the provisions of § 10(k) have been satisfied. That section directs the Board to 'hear and determine' the dispute out of which the alleged unfair labor practice arose; the Board is required to decide which union or group of employees is entitled to the disputed work in accordance with acceptable, Board-developed standards, unless the parties to the underlying dispute settle the case or agree upon a method for settlement. Whether the § 8(b)(4)(D) charge will be sustained or dismissed is thus dependent on the outcome of the § 10(k) proceeding. The Board allows an employer to fully participate in a § 10(k) proceeding as a party. If the employer prefers the employees to whom he has assigned the work, his right to later relief against the other union's picketing is conditioned upon his ability of convince the Board in the § 10(k) proceeding that his original assignment is valid under the criteria...

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