National Labor Relations Board v. Plasterers' Local Union No. 79, Operative Plasterers' & Cement Masons' International Association/Opinion of the Court

When a charge is filed under § 8(b)(4)(D) of the National Labor Relations Act, as amended, the provision 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. 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?

* 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.'

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. 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 Disputes (Joint Board), a body established by the Building Trades Department, AFL-CIO, and by certain employer groups. 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. 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. 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, and 'after taking into account and balancing all relevant factors' awarded the work to the Tile Setters. 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. 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. 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.' 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.

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. 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 employed by the Board.

The alleged unfair labor practice in this cause was the picketing of the jobsites by the Plasterers, and the dispute giving rise to this picketing was the disagreement over whether Plasterers or Tile Setters were to lay the final plaster coat. This dispute was a three-cornered one. The Plasterers made demands on both Texas State and the Tile Setters and on both Martini and the Tile Setters. In both cases, the employers' refusal to accede to the Plasterers' demands inevitably and inextricably involved them with the Tile Setters against the Plasterers. It was this triangular dispute that the § 10(k) proceeding was intended to resolve.

It may be that in some cases employers have no stake in how a jurisdictional dispute is settled and are interested only in prompt settlement. Other employers, as shown by this cause, are not neutral and have substantial economic interests in the outcome of the § 10(k) proceeding. A change in work assignment may result in different terms or conditions of employment, a new union to bargain with, higher wages or costs, and lower efficiency or quality of work. In the construction industry, in particular, where employers frequently calculate bids on very narrow margins, small cost differences are likely to be extremely important. In the present cause, both employers had collective-bargaining contracts with the Tile Setters specifically covering the work at issue; neither had contracts with the Plasterers nor employed Plasterers regularly. Both employers determined it to be in their best interests to participate vigorously in the Board's § 10(k) proceeding. The employers contended it was more efficient and less costly to use the same craft for applying the last coat of plaster, putting on the bonding coat, and laying the tile and that it was more consistent with industry practice to use the Tile Setters as they did. Both companies claimed that their costs would be substantially increased if the award went to the Plasterers, and that without collective-bargaining contracts with the Plasterers, they would lose 30%-40% of their work to plastering contractors. It is obvious, therefore, that both Texas State and Martini had substantial stakes in the outcome of the § 10(k) proceeding.

The phrase 'parties to the dispute' giving rise to the picketing must be given its commonsense meaning corresponding to the actual interests involved here. Cf. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO, Local 283 v. Scofield, 382 U.S. 205, 220, 86 S.Ct. 373, 382, 15 L.Ed.2d 272 (1965). Section 10(k) does not expressly or impliedly deny party status to an employer, and since the section's adoption in 1947, the Board has regularly accorded party status to the employer and has refused to dismiss the proceeding when the unions, but not the employer, have agreed to settle.

The Court of Appeals rejected this construction of § 10(k). Its reasoning, which we find unpersuasive, was that because the employer is not bound by the § 10(k) decision, he should have no right to insist upon participation. 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 proceedings. 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 the employees to whom he has assigned the work are legally bound to observe the § 10(k) decision, but both will lose their § 8(b) (4)(D) protection against the picketing which may, as it did here, shut down the job. The employer will be under intense pressure, practically, to conform to the Board's decision. This is the design of the Act; Congress provided no other way to implement the Board's § 10(k) decision.

We do not find that the legislative history of § 8(b)(4)(D) and § 10(k) requires a different conclusion. The Court of Appeals and the Plasterers rely upon various statements in the legislative history of the two sections, particularly the remarks of Senator Morse, referring to jurisdictional disputes as controversies between two labor unions, and a passage in the House Conference Report referring to § 10(k) as directing the Board to 'hear and determine disputes between unions giving rise to unfair labor practices under § 8(b)(4)(D).' Nothing in these remarks or in the other relevant legislative documents indicates an affirmative intent to exclude an interested employer from participating in § 10(k) proceeding. The usual focus of the legislative debates was on ways of protecting the employer from the economic havoc of jurisdictional strikes. But it does not follow from statements condemning the economically deleterious effects of inter-union strife that Congress intended an employer to have no say in a decision that may, practically, affect his business in a radical way. Congress did not expressly focus on the non-neutral employer, but there is nothing in the legislative history that negatives employer standing; and in referring to the 'parties to the dispute,' Congress used terminology that would ordinarily include the employer in cases such as these.

The Court has frequently cautioned that '(i)t is at best treacherous to find in Congressional silence alone the adoption of a controlling rule of law.' Girouard v. United States, 328 U.S. 61, 69, 66 S.Ct. 826, 90 L.Ed. 1084 (1946); Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 241, 90 S.Ct. 1583, 1587, 26 L.Ed.2d 199 (1970). It is clear that Congress intended to protect employers and the public from the detrimental economic impact of 'indefensible' jurisdictional strikes. It would therefore be myopic to transform a procedure that was meant to protect employer interests into a device that could injure them. In the absence of an 'unmistakable directive,' the Court has refused to construe legislation aimed to protect a certain class in a fashion that will run counter to the goals Congress clearly intended to effectuate. FTC v. Fred Meyer Inc., 390 U.S. 341, 349, 88 S.Ct. 904, 908, 19 L.Ed.2d 1222 (1968). We conclude, therefore, that these sections were enacted to protect employers who are partisan in a jurisdictional dispute as well as those who are neutral.

Nothing in CBS, supra, mandates a different conclusion. Until that case, the Board's practice had been to decide against the striking or picketing union unless it was entitled to the work pursuant to a Board certification or a collective-bargaining contract. The Court found the Board to have taken too narrow a view of its task and held that the Board, employing broader, more inclusive criteria with respect to entitlement, must make an affirmative award to one union or the other. In the course of its opinion, the Court referred to § 10(k)'s phrase 'the dispute out of which such unfair labor practice shall have arisen' as having 'no other meaning except a jurisdictional dispute under § 8(b)(4)(D) which is a dispute between two or more groups of employees over which is entitled to do certain work for an employer.' 364 U.S., at 579, 81 S.Ct., at 334. Again, we have no quarrel with the view that § 10(k) is designed to decide which union is entitled to the work. But the issue before us is whether the employer is also a party to that dispute and to the proceeding that decides that question. The Court in CBS did not have before it a case in which the employer was particularly interested in which union did the work, since it had collective-bargaining contracts with both unions and since both unions were able to do the disputed work with equal skill, expense, and efficiency. The Court recognized that there, 'as in most instances' the quarrel was of 'so little interest to the employer that he seems perfectly willing to assign work to either (union) if the other will just let him alone.' Ibid. (emphasis added.) We have no doubt, therefore, that the Court had no intention of deciding the case now before us.

If employers must be considered parties to the dispute that the Board must decide under § 10(k), absent private agreement, they must also be deemed parties to the adjustment or agreement to settle that will abort the § 10(k) proceedings. It is insisted that so holding will encourage employers to avoid private arbitration, whereas holding union agreement alone sufficient to foreclose Board action will pressure employers to become part of private settlement mechanisms productive of sound result and much swifter decision.

The difficulties with this argument are several. First of all, if union agreements to arbitrate are sufficient to terminate § 10(k) proceedings, there is no assurance that these private procedures will always be open to employer participation, that an employer will be afforded a meaningful chance to participate, or that all relevant factors will be properly considered.

Second, the argument for regarding the employer as a dispensable neutral is reminiscent of the position taken by the Board and rejected by the Court in the CBS case. There, the Board sought to justify a narrow view of its function and its failure to make affirmative awards as generating pressure to settle or arbitrate privately. As § 10(k) passed the Senate, it directed the Board to decide the dispute or to order arbitration, but the arbitration alternative was deleted in Conference, and the amended bill was passed by the Senate over the strenuous objections of Senator Morse and others. By this amendment, the Court in CBS held that Congress had expressed a clear preference for Board decision as compared with compelled arbitration, and that this policy preference must be respected. 364 U.S., at 581-582, 81 S.Ct., at 335-336, 5 L.Ed.2d 302. Although this Court has frequently approved an expansive role for private arbitration in the settlement of labor disputes, this enforcement of arbitration agreements and settlements has been predicated on the view that the parties have voluntarily bound themselves to such a mechanism at the bargaining table. In both Carey v. Westinghouse Electric Corp., 375 U.S. 261, 261, 84 S.Ct. 401, 404, 11 L.Ed.2d 320 (1964) and Boys Markets, Inc. v. Retail Clerk's Union, Local 770, 398 U.S., at 238, 90 S.Ct., at 1585, the employers had acceded to binding arbitration as the terminal step of the grievance procedure. This concession is not present in the instant case; the employers here did not even have a collective-bargaining contract with the Plasterers. Section 10(k) contemplates only a voluntary agreement as a bar to a Board decision. As in CBS, we decline to narrow the Board's powers under § 10(k) so that employers are coerced to accept compulsory private arbitration when Congress has declined to adopt such a policy.

There remains the matter of the so-called Safeway rule announced by the Board in 1962 and followed since. Under this rule, the Board has held that if one of the unions claiming work effectively renounces its claim, § 10(k) proceedings are aborted despite legitimate interests an employer may have in securing a Board decision. It is urged that if union agreement prevents a § 10(k) decision in such a situation, the employer cannot be considered a party to the § 10(k) dispute when the unions but not the employer have agreed upon a method of settlement. As we understand the Safeway doctrine, however, when one union disclaims the work, § 10(k) proceedings terminate, not because all 'parties' to the dispute have settled or agreed to settle within the meaning of the statute, but on the ground that, in the words of the Board's brief in this case, 'the Board has power, under Section 10(k) only to hear and determine the merits of a jurisdictional dispute and * *  * by definition, such a dispute cannot exist unless there are rival claims to the work *  *  * .' Concededly, an employer may be a third party to disputes over work assignments, but when the other two parties settle their differenced and one union declines the work assigned to it, the inter-union conflict that §§ 8(b)(4)(D) and 10(k) were designed to eliminate disappears. A § 10(k) hearing is a comparative proceeding aimed at determining which union is entitled to perform certain tasks. Its function evaporates when one of the unions renounces and refuses the work. Similarly, the applicability of § 8(b)(4)(D) is premised on conflicting claims of unions or groups of employees for the same job; absent such an actual conflict it would be futile to proceed under that section unless the employer replaces the disclaiming employees by a new third group of employees when they reject the work assignment, and the disfavored union resumes picketing.

If union settlement followed by disclaimer ends the § 10(k) case, some of the argument about the employer's party status becomes academic; for whether the employer is a party or not, the two unions alone can prevent a Board decision. But recognizing the employer's party status insures his right to participate when the unions do not agree and the Board must come to a decision. Further, the Board's Safeway rule applies only where the inter-union conflict is effectively settled and the employer no longer faces conflicting claims to the work. As this case demonstrates, the Board does not apply the Safeway rule to unimplemented agreements to arbitrate between the unions alone, and it does not consider it applicable where employees continue on the job after their international union loses an arbitration proceeding and renounces the work. These de facto disputes are real, and they deserve Board resolution if the purposes of § 10(k) are to be achieved. Cf. CBS, supra, 364 U.S., at 579-580, 81 S.Ct., at 334-335.

The Court of Appeals would extend the Safeway rule to foreclose Board decision where the two unions, but not the employer, have agreed to arbitrate; inter- union agreement was deemed equivalent to effective disclaimer by one of the unions. This view ignores the narrow view the Board has taken of the Safeway rule. It also fails to recognize the problem arising where a local union or group of employees continues to do work assigned by the employer despite agreement or disclaimer by their parent body. It makes little difference to the picketing union that there has been a 'settlement' or an agreed-upon method of deciding the dispute as long as it is barred from enjoying the results of such a theoretical resolution. In the instant case, the Board held a § 10(k) hearing for the simple reason that a live unresolved jurisdictional dispute between unions and employer in fact existed.

Our conclusion evinces no hostility to voluntary settlement of disputes and is wholly consistent with federal policy with respect to voluntary arbitration. In other contexts, where challenged conduct poses an arbitrable dispute under a collective-bargaining contract but is also an unfair labor practice within the jurisdiction of the Board, the Board will, as a matter of policy, defer to the arbitral settlement, although it is not bound to do so by the LMRA. See 29 U.S.C. § 160(a); Carey v. Westinghouse Electric Corp., 375 U.S., at 272, 84 S.Ct., at 409; National Labor Relations Board v. Strong, 393 U.S. 357, 360-361, 89 S.Ct. 541, 544-545, 21 L.Ed.2d 546 (1969); National Labor Relations Board v. Acme Industrial Co., 385 U.S. 432, 438, 87 S.Ct. 565, 569, 17 L.Ed.2d 495 (1967). Although the Board is not statutorily required to honor arbitration awards in such situations, it often defers to them if the arbitrator has considered the alleged unfair labor practice. Spielberg Mfg. Co., 112 N.L.R.B. 1080 (1955); International Harvester Co., 138 N.L.R.B. 923 (1962), enforced sub nom. Ramsey v. National Labor Relations Board, 327 F.2d 784 (CA7 1964). But again, such deference is in the context of voluntary arbitration. In the case before us, the LMRA requires that the Board defer only when all of the parties have agreed on a method of settlement; when there has been such an agreement, the Board cannot ignore or override the result of that settlement procedure. In the present cause, however, it is claimed the Board must defer when less than all the parties to the dispute have agreed to arbitrate.

Reversed.