Local 383, Laborers

National Labor Relations Board - Board Decisions

Jun 12, 1975

218 N.L.R.B. 424 (N.L.R.B. 1975)

424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Construction, Production & Maintenance Laborers'
Union, Local No. 383 of the Laborers International
Union of North America, AFL-CIO i, and Industri-
al Turf, Inc., and-United Association of Journey-
men and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada,
Local No. 469, AFL-CIO.2' Case 28-CD-151
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we fmd, that Local 383
and Local 469 are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
June 12, 1975
DECISION AND ORDER QUASHING
NOTICE OF HEARING
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended , follow-
ing charges filed-by Industrial Turf, Inc., (herein
called the Employer}, on January 16, 1974, alleging
that Local 383 had violated Section 8(b)(4)(D) of the
Act by engaging in certain proscribed activities with
an object of forcing the Employer to assign certain
work to employees ,represented by Local 383, rather
than to, employees represented by Local 469.
Pursuant to notice , a hearing was , held before
Hearing Officer Edward N. Grossman on March 21
and 22 and April 11, 12, 17, and 18, 1974 . All parties
appeared at the _ hearing and were afforded full
opportunity to be heard, to examine and cross-
examine witnesses , and to adduce evidence bearing
on the issues . Thereafter , the Employer , Local 383,
and Local 469 filed briefs.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and fords that they are
free of prejudicial error . The rulings are hereby
affirmed . The Board . has considered the briefs and
the entire record in this case and hereby makes the
following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer is a California corporation main-
taining an office and place of business at Mesa,
Arizona, where it is engaged in business as a
landscaping and sprinkling system contractor in the
building and construction industry. The parties
stipulated that during the representative 12-month
period immediately before the hearing, the Employer
performed services for Rossmoor Leisure World-
Golden Hills, herein called Rossmoor, valued in
excess of $200,000, at the Rossmoor construction
project known as Golden Hills at Mesa, Arizona.
Accordingly, we fmd, as the parties have stipulated,
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that it
will effectuate the policies of the Act to assert
jurisdiction herein.
I Herein called Local 383.
2 Herein called Local 469.
A. The Work in Dispute
The work in dispute consists of the landscaping
and the installation of sprinkler systems for Ross-
moor Leisure World-Golden Hills at the Golden
Hills construction project at Mesa, Arizona.
B: Background and Facts of the Dispute
The Employer began contracting for work, in
Arizona in January 1972 and, in June 1972, it entered
into a collective-bargaining agreement with Local
469. This was a memorandum agreement which
obligated the parties to be bound by the association
agreement' that- had been negotiated between the
Plumbing and Air Conditioning Contractors of
Arizona 3 and Local 469.
In June 1973, the Employer' contracted with
Rossmoor, agreeing to perform the lawn sprinkler
work and landscaping at the Golden Hills project.
The Employer, relying on its contract with Local 469,
assigned the work to employees represented by Local
469. This assignment was oral until January 17, 1974,
at which time a'written assignment was executed. In
December 1973, the Employer also began doing
tough cleanup and concrete flatwork for Rossmoor.
A portion of this work was being done pursuant to an
agreement with'the Cement Masons and'a portion of
the work was being done by preapprentices of Local
469. Prior to the time the Employer received the
latter contract, a different subcontractor, who used
laborers from Local 383 for a portion of the work,
did the rough cleanup and concrete flatwork.
Edward Kendler, the Employer's regional manager
for Arizona, testified that on January 9, 1974, John
Moya, Sr., Local 383's assistant business representa-
tive, visited Kendler's office while Kendler was not
present and left three memorandum agreements for
Kendler's signature. Kendler telephoned Moya the
following day and stated that he had received the
agreements, that they would have to be sent to the
home office of the Employer in California for
signature, and that it would take a week and a half
for their return. Moya responded that he would be at
the jobsite in a half hour and Kendler stated that he
would also be there. Kendler testified that he
understood at that time that he was agreeing to sign
3 The Employer is not a member of the Plumbing and Air Conditioning
Contractors of Arizona.
218 NLRB No. 80
LOCAL 383, LABORERS 425
with the Laborers for a portion of the concrete work
and the rough cleanup work. Kendler proceeded to
the jobsite to speak with his general field superinten-
dent, George Clark, to tell him that they were
agreeing to sign with Local 383 for rough cleanup
and concrete work. 'Clark informed Kendler that
Moya had stopped to talk to one of the Employer's
employees, who was working on cleanup work, and
had told him that it would be necessary for the
Employer to put construction laborers from Local
383 on the cleanup and concrete work. Upon
returning from this discussion, Kendler and Clark
found pickets at the front gate with signs saying that
the Employer was paying substandard wages. The
sign had Local 383 on it. Picketing was also taking
place at the other entrance to the j obsite.
According to_Kendler, he proceeded to call Moya
to find out why he was being picketed and Moya
responded that it was out of his hands and in the
hands of Bill Soltero, Local 383's business manager.
Kendler also stated that Moya told him at that time
the reason for the picketing was that Local 383
wanted laborers on the concrete and cleanup
operations. Kendler called Soltero and Soltero stated
that Clark had already been in contact with his
dispatcher, that five laborers were coming out to the
jobsite as soon as possible to cover that portion of
the work, and that the pickets would be removed in
10 minutes. About a half hour later, Moya came to
Kendler's office with three other persons and stated
that the Employer had 1 week to put laborers on the
rest of the operations if it did not want to be
picketed. Kendler responded that the Employer
would be willing to sign an agreement with Local 383
to cover concrete labor work and cleanup labor, but
that as far as the rest was concerned the Employer
had a contract with Local 469. Both Moya and
Kendler reiterated their respective statements and
that ended the conversation. Kendler testified that
Moya's 'reference to "the rest of the operations"
referred to the landscaping and lawn sprinkler
operations. No further threats were made and
charges were filed by the Employer on January 16,
1974. The laborers requested by Clark arrived on the
job within hours after Soltero had informed Kendler
that they had been requested, and they were assigned
to the concrete and cleanup work. The Employer did
not enter into a contract with Local-383, even though
it continues to employ laborers for the concrete and
general cleanup-operations.
Contrary to Kendler,. Moya testified that from the
summer of 1973, through the fall of 1973, concrete
work was being performed at Rossmoor by Burrows
Concrete, with whom Local 383 had a contract.
Moya learned from one of his stewards on the
project, about January 3, 1974, that the Employer
was performing certain concrete work. Moya went to
the project and brought it to the attention of Project
Manager David Savage. Moya learned that the
people who were placing the concrete were not
receiving the prevailing wage scale and told Savage
about it. Savage promised Moya that the situation
would 'be corrected. Moya further testified that
Savage told him that the Employer - would sign an
agreement and that Moya should go to the Employer
and leave a copy of the agreement with them, which
Moya states that he did. Moya further stated that he
had a conversation with Kendler on January 3, 1974,
telling Kendler that Savage had sent him to Ken-
dler's office. Kendler allegedly responded that he was
not authorized to sign the agreement and that a Mr.
Moore would sign it. Moya further testified that
when he discovered on January 10, 1974, upon going
to the project that the people were still being paid
substandard wages he put out a picket sign, the
purpose of which was to notify- the public that the
Employer was paying substandard wages in connec-
tion with the concrete work. The pickets were pulled
after 2 hours because the Employer called Local
383's office and informed it that the Employer would
pay the prevailing wage scale. Moya also testified
that he did not go to the office of Kendler on
January 10, 1974, and that,he did not tell Kendler
that he had 1 week to put Local 383 laborers on the
"rest of the operations" or that pickets would go up.
Moya's testimony also conflicts to some degree
with the testimony of one of the employees who had
been working on the concrete work. That employee
testified that he had been asked if he was making the
pay of a laborer and if he belonged to Local 383.
Moya testified that he did not inquire as to anyone's
union affiliation.
Also somewhat in conflict with Moya's testimony
was a letter to the Employer from Soltero, dated
March 4, 1974. In that letter, which requested a
meeting with the Employer, Rossmoor, and Local
469, Soltero mentions that informal discussions with
the Employer regarding the assignment of the
landscaping and installation of sprinkler systems for
the Golden Hills project had apparently failed to
reach resolution of the problem.
The record further reveals that there exists a
company known as Artistic Maintenance, herein
called Artistic, a subsidiary of the Employer, which
principally performs maintenance work. Artistic does
not have a contract with any union. The record
discloses that Artistic's employees, some of whom are
paid less than preapprentices of Local 469, were used
by the Employer on the -sodding' portion of the
landscaping operation, in violation of the agreement
with Local 469, because the Employer had become
quite busy. Artistic's employees were used during
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
part of December 1973 and part of January 1974.
The'Employer states that when it discovered that it
was violating its agreement with Local 469 it
transferred those people performing the extra sod-
ding to the Employer's payroll and sent them to
register with Local 469 as preapprentices. 'The
Employer was later backcharged by Artistic for the
work performed by its employees before they
transferred payrolls.
C. Contentions of the Parties
Local 383 contends that there is no reasonable
cause to believe that it violated Section 8(b)(4)(D) of
the Act because its picketing was directed to concrete
and cleanup work rather than to the work in issue. It
further contends that the threat , if any, occurred at a
time when the work in issue was not being performed
by the Employer . In this regard , it alleges that the
Employer had subcontracted out the landscaping
work to Artistic and that therefore the picketing may,
at most, be construed as organizational picketing.
Additionally, at the hearing, Local 383 contended
that it had not as yet ' made a claim for the
landscaping and lawn sprinkler work and was unsure
as to whether it would . The Employer and Local 469
contend that Local 383 has made a claim for the
work, and that there is reasonable cause to believe
Section 8(b)(4)(D) has been violated.
In addition , Local 383 contends that there is an
agreed-upon method for the voluntary adjustment of
the dispute . The Employer and Local 469 assert that
there is no voluntary method for settlement of the
dispute to which all the parties have agreed to be
bound.
Local 383 contends that the proper employer is the
Employer's trustee in bankruptcy since the Employer
at present is in bankruptcy and subject to the
direction of a United States district court. The
Employer asserts that it is the "proper" employer,
since the receiver was removed on June 7 , 1973, and
since that time the Employer has not been under a
court order.4
Finally, Local 383 argues that the disputed work
should properly be assigned to employees represent-
ed by Local 383 based on the Employer's past
collective-bargaining agreements in California with
the Laborers ' Union covering the identical work,
which it asserts are -still in full force and effect, the
Employer's past practice , and predominant area and
industry practice . It further contends that the factors
of skills , efficiency, and economy are ' not really
relevant to the dispute herein since both plumbers
and laborers have the requisite skills or can obtain
them without difficulty and no greater economy of
production will be achieved by the assignment of the
work to either plumbers or laborers. The Employer
and Local 469 contend that the disputed work should
properly be retained by employees represented by
Local 469 based on the Employer's assignment, the
Employer's collective-bargaining agreement with
Local 469, predominant area practice, the superior
skills that plumbers have with regard to lawn
sprinkling, and the factors of efficiency and econo-
my. The Employer and Local 469 also request a
broad order covering the entire State of Arizona or,
at least, all areas of the State of Arizona which are
coextensive with the jurisdictional areas of Local 383
and Local 469. -
D. Applicability of the Statute
Before the Board may proceed to a- determination
of the dispute pursuant to Section 10(k) of the Act, it
must be satisfied that (1) the parties have not agreed
upon a method for the voluntary adjustment of the
dispute, and (2) there is reasonable cause to believe
that Section 8(b)(4)(D) has been violated.
With respect to the issue of a voluntary method for
the adjustment of the dispute, we find for the reasons
stated below that an agreed-upon method exists
inasmuch as all parties to the instant dispute are
required to submit their jurisdictional disputes to the
new Impartial Jurisdictional Disputes- Board (IJDB)
for determination.
On June 8, 1972, the Employer signed a memoran-
dum agreement with Local 469, which provides as
follows:
1. The parties hereto agree to comply with
and be bound _ by all the terms of that certain
collective bargaining agreement between the
Plumbing and Air Conditioning Contractors of
Arizona and Local Unions 469 and 741 of the
United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry of
the United States and Canada effective June 1,
1972, herein called the Association Agreement
The association agreement referred to in the
memorandum agreement provides that jurisdictional
disputes are to be governed as follows:
Subject to the limitations of paragraph "B-6"
above, in the event a jurisdictional. dispute cannot
be settled between the unions involved, then it is
hereby agreed that such plan for settlement of
jurisdictional disputes as is or maybe adopted by
4 We find that the Employer is the "proper" employer herein since the was confirmed , the business was restored to the Employer , and from that
record shows that on June 7, 1973, the Bankruptcy Plan of Arrangement time forward it was no longer under court order.
LOCAL 383, LABORERS 427
the American Federation of Labor, Building and
Construction Trades Department, shall be used.
The new IJDB came into being on June 1, 1973.
Hence we construe the words "may be adopted" in
the aforementioned clause to refer to the new IJDB
and its successors, and to bind the Employer and
Local 469 to the new IJDB 5
Both United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL-
CIO, and Laborers' International Union of North
America, AFL-CIO, with which Locals 469 and 383
are respectively affiliated, are members of the
Building and Construction Trades Department,
AFL-CIO,' and as such are parties to the plan and
subject to the jurisdiction of the new IJDB created
pursuant to the plan..
Article X of the constitution of the Building and
Construction Trades Department provides:
All jurisdictional disputes between or among
affiliated National and International Unions and
their affiliated Local Unions and employers shall
be settled and adjusted according to the present
plan established by the Building and Construc-
tion Trades Department, or any other plan or
method of procedure adopted in the future by the
Department, for the settlement of jurisdictional
disputes. Said present plan or any other plan
adopted in the future shall be recognized as final
and binding upon the Department and upon all
affiliated National or International Unions and
their affiliated Local Unions.
Local 469 and the Employer rely on testimony of
Dudley Brown, Local 469's business manager, to the
effect that despite the aforementioned language of
article X the International Unions involved had
agreed that no jurisdictional disputes between the
two Unions would be submitted to the new IJDB for
a period from August 1973 until August 1974.
In Local 423, Laborers' International Union of North
Atiwrica, AFL-CIO (V & C Brickcleaning Co.), 203
NLRB 1015 (1973), the Board stated that "where an
`agreed-upon' method has been formally and deliber-
ately created by the parties, stability in labor
relations requires a deliberate and formal withdrawal
from such procedure before it will be considered no
S Contrary to the dissent of Member Kennedy, signing a stipulation is
but one of several methods by which a party becomes bound to the IJDB.
Another method , cited in the IJDB plan which is quoted in full in Member
Kennedy's dissent, which the Employer herein has satisfied , is to be a
"partly ] to' a collective bargaining agreement providing for the settlement of
jurisdictional disputes under these procedures herein set forth."
6 We see nothing ' inconsistent in stating that withdrawal from the
Building and Construction Trades Department would constitute a valid
withdrawal from IJDB procedures and our statement in V & C Brickclean-
longer effective and binding." Despite the alleged
private agreement between the two competing
Unions, the record before us contains no evidence
that the two Unions involved have withdrawn from
the Building and Construction Trades Department or
have formally notified the IJDB that they will not
submit to the authority of that forum for the
resolution of their jurisdictional disputes. According-
ly, we conclude that article X must control and that
there remains in effect the previously established
method, "agreed upon" within the meaning of
Section 10(k) of the Act, for resolving this jurisdic-
tional dispute.6
In view of the foregoing, we fmd that all parties
have agreed to be bound by a determination of the
new IJDB? Accordingly, we shall quash the notice of
hearing issued herein.
ORDER
It is hereby ordered that the notice of hearing
issued in this proceeding be, and it hereby is,
quashed.
MEMBER JENKINS, concurring and dissenting in part:
I agree with my dissenting colleague that there
exists no voluntary means of adjustment of the
dispute to which all parties are bound. However, I do
not reach the merits of the dispute, for in my view,
there is no reasonable cause to believe that a
violation of Section 8(b)(4)(D) has been committed, a
critical issue which the majority finds unnecessary to
decide. In light of what I perceive to be the majority's
improper basis for quashing the notice of hearing, I
am constrained to state my separate view of this case.
The evidence is insufficient to establish a tradition-
al jurisdictional dispute between two groups of
employees. As stated by the majority, in December
1973, the Employer began doing rough cleanup and
concrete flatwork, using preapprentices of Local 469.
Prior to that time, laborers from Local 383 per-
formed that work for another contractor.
Moya, Local 383's assistant business representa-
tive, visited the project to protest this intrusion upon
traditional laborers' work. Moya learned that the
people who were placing the concrete were not
receiving the prevailing wage scale and complained
about that also. On January 10, 1974, Moya set up
picket signs stating that the Employer was paying
ing Co, supra, that the question of whether withdrawal from the IJDB
automatically constitutes withdrawal from the Building and Construction
Trades is an internal union matter . The former deals with the validity of a
method of withdrawal while the latter deals with the effect of a method of
withdrawal on membership in the Building and Construction Trades
Department.
T In view of this finding , we find it unnecessary to pass on whether there
was reasonable cause to believe that Sec . 8(bX4)(D) has been violated or to
consider the racial discrimination allegations.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substandard wages. The pickets were removed after 2
hours because the Employer agreed to pay the
prevailing wage scale.
Kendler, the Employer's regional manager, stated
that on January 10 Moya stated to him that the
Employer had I week to put laborers on the rest of
the operations if it did not want to be picketed. This
would include the lawn sprinkler work and landscap-
ing, which had been assigned in accordance with the
Employer's contract with Local 469. Moya denied
making the alleged threat to Kendler. I credit Moya's
denial, for this alleged threat is completely inconsis-
tent with Local 383's course of conduct, the language
of the picket signs, the prompt removal of the pickets
once the Employer agreed to pay the prevailing wage
rate, and the absence of any other alleged threats.
The majority states that in conflict with Moya's
testimony was a letter, dated March 4, 1974, to the
Employer from Soltero, Local 383's business manag-
er. In that letter, Soltero mentions that informal
discussions with the Employer regarding the assign-
ment of the landscaping and installation of sprinkler
systems for the project had apparently failed to reach
resolution of the problem. I fail to see any conflict,
for the "discussions" referred to in the letter could
hardly be construed as amounting to a threat.
Thus, the picketing by Local 383 was directed to
the Employer's failure to pay the prevailing wage
rate, and certainly cannot be regarded as falling
within the proscriptions of Section 8(b)(4)(D). Even
assuming, arguendo, that the picketing was for the
purpose of obtaining the concrete work for laborers,
the Board has held that, although the dispute "might
be deemed to fall within the literal terms of the
Section 8(b)(4)(D) proscription," that proscription
was not designed to authorize the Board to arbitrate
disputes between an employer and a union, particu-
larly with regard to the union's "attempt to retrieve
the jobs" of employees whom the employer chose to
supplant by reallocating that work to others.8
On the basis of the foregoing, I conclude the
dispute herein is not the type of controversy
Congress intended the Board to resolve pursuant to
Section 8(b)(4)(D) and Section 10(k) of the Act.
Accordingly, I would quash the notice of hearing on
that basis.
8 Highway Truckdnvers & Helpers, Local 107, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Hers of America, Independent
(Safeway Stores, Incorporated), 134 NLRB 1320 (1961).
9
The majority cites Local 423, Laborers' International Union of North
America, AFL-CIO (V & C Brickcleamng Co.), 203 NLRB 1015 (1973), in
support of their holding Although I dissented in that case , I note that the
majority added a caveat at the end of the decision which is consistent with
my position in ELT Piping and in this case . The majority stated (203 NLRB
at 1016):
MEMBER KENNEDY, dissenting:
For the reasons more fully stated in my dissent in
Sheet Metal Workers Local Union No. 359, affiliated
with Sheet Metal Workers' International Association,
AFL-CIO (ELT Piping), 217 NLRB No. 164 (1975),
I do not agree with the finding of my colleagues that
all parties have agreed to be bound by a determina-
tion of the Impartial Jurisdictional Disputes Board
(IJDB).
Section 10(k) provides that this Board must
determine a jurisidictional dispute unless the parties
can show that they have "adjusted, or agreed upon
methods for the voluntary adjustment of the dispute."
(Emphasis supplied.) The evidence herein, however,
is clear that the parties had not agreed to a voluntary
method for the adjustment of their dispute. Indeed,
the evidence is to the contrary.9
The testimony reveals that the Plumbers and
Laborers International presidents agreed that no
jurisdictional disputes between the two unions would
be submitted to the IJDB from August 1973 through
August 1974, approximately corresponding to the
first year of its operation. The present dispute arose
in January 1974, which was within the specified
period.
My colleagues find that, in the absence of formal
withdrawal from the department, the two Unions are
bound by IJDB procedures because of their member-
ship in the AFL-CIO Building and Construction
Trades Department, a signatory to the IJDB,
inasmuch as the constitution of the latter binds its
members to the IJDB. As I said in ELT Piping:
We are concerned with whether the parties have
voluntarily agreed upon a method for resolving
their differences-not with whether they are
complying with the requirements of their constitu-
tion. It may well be that the agreement not to
utilize the IJDB procedures is inconsistent with
article X of the Building and Construction Trades
Department, AFL-CIO, constitution. But that is
a matter for the Building and Construction
Trades Department to resolve, not us. For our
purposes, the crucial evidence is that when the
work assignment in question was made the two
internationals had agreed between themselves-
for whatever reason-not to utilize the IJDB
procedures. Accordingly, there does not exist an
"agreed-upon method" for the voluntary adjust-
ment of the dispute herein.
In none of the foregoing do we imply any decision as to whether
withdrawalfrom Joint Board procedures is inhibited by a union's affiliation
with the Building and Construction Trades Department, AFL-CIO.
[Emphasis supplied.] Whatever effects withdrawal from Joint Board
procedures may have upon affiliation with the Budding and Construc-
tion Trades is a matter for the internal rules of the department.
LOCAL 383, LABORERS 429
The record further reveals that the Employer was
also not bound to a voluntary method of adjustment.
As noted by the majority, the Employer signed a
memorandum agreement binding it to the collective-
bargaining contract which had been negotiated
between Plumbing and Air Conditioning Contractors
of Arizona and Plumbers Local 469. The contract
contained language, quoted by the majority, which
bound the signatories to a plan for settlement of
jurisidictional disputes that "is or may be adopted"
by the Building and Construction Trades Depart-
ment, AFL-CIO. The majority, therefore, concludes
that the plan eventually adopted on June 1, 1973, the
IJDB, also bound the Employer.
The majority overlooks, however, the requirements
which the IJDB itself imposes, in the interest of
voluntarism, in order to consider anyone bound. The
IJDB plan states in relevant part:
The procedures shall apply to: (a) Employers who
employ members of the organizations affiliated
with the Department and who have signed a
stipulation setting forth that they are willing to be
bound by the terms of the agreement establishing
this Impartial Jurisdictional Disputes Board or
who are members of a stipulated association of
employers with authority to bind its members, or
who are parties to a collective bargaining agree-
ment providing for the settlement of jurisidiction-
al disputes under these procedures herein set
forth: provided that any such employers who
have agreed to be so bound, but were not parties
to the predecessor Plan for Settling Jurisdictional
Disputes of April 3, 1970, must reaffirm their
agreement in order to be accepted in this Plan.
The essence of this Plan assumes voluntary
participation. National Employer Associations
shall encourage participation in this Plan by their
chapters and members, but no contractor stipula-
tion or agreement shall be recognized by the
Impartial Jurisdictional Disputes Board if it is
shown to the satisfaction of this Board that it is
the result of unlawful strikes, work stoppages or
other coercive activity or any activity which is
contrary to the voluntary nature of this Plan, by a
labor organization affiliated with the Department
or that it results from the compulsion of legal or
contractual proceedings arising from pre-existing
labor-management agreements. Notwithstanding
any other provision of this Plan should such
action be taken against any chapter or member of
any participating Employer Association to com-
pel stipulation to the Plan, its parent association,
if it is a signatory to this Plan, shall thereby have
the option to terminate its participation upon
written notice to the Board Chairman within
thirty (30) days of such action or occurrence,
provided that notice of the action or occurrence
has been afforded to the Department by the
parent association during the thirty (30) day
period and prior to any notice of termination.
Thus, it is clear that the plan of the IJDB conceives
of voluntary participation and requires that an
employer must sign an appropriate stipulation to be
bound.1o
The Employer herein never signed the required
stipulation. Nor is the Employer a member of
Plumbing and Air Conditioning Contractors of
Arizona, whose contract it adopted. Further, the
record reveals that the Employer never intended to
be bound by any voluntary method of adjustment.
Yet, in the face of the conception of voluntarism in
the IJDB plan, the lack of a signed stipulation, and
the intent of the Employer not to be bound, my
colleagues would find that a voluntary method exists
for the adjustment of the dispute. I cannot agree.
I, therefore, would proceed to the merits of the
dispute 11 and, on the evidence herein,, including
predominant area and industry practice, the Employ-
er's past practice in California, and the lack of
superior skills on the part of either the plumbers or
the laborers, would award the landscaping portion of
the work to the employees represented by Laborers
Local 383. I would award lawn sprinkling work,
which has traditionally been performed by plumbers,
to the employees represented by Plumbers Local 469.
10 Contrary to the majority, I interpret the IJDB plan to require a
stipulation by the employer signifying specific intent to be bound by the
IJDB
i L Contrary to the conclusions of Member Jenkins, I find reasonable
cause to believe that a violation of Sec. 8(b)(4)(D) has been committed. The
mere conflict in the two versions of what occurred as the dispute arose,
accompanied by the letter from Soltero specifically addressing the work in
dispute, justifies the conclusion that "reasonable cause" exists , without
resolving the credibility issue. As was stated in International Union of
Operating Engineers, Local No 18, AFL-CIO (The Mayer Corporation), 184
NLRB 134, 136 (1970), in which a finding of reasonable cause was made
without resolving a credibility conflict similar to the one herein:
In a jurisdictional dispute context , the Board is not charged with
finding that a violation did in fact occur, but only that there is
reasonable cause to believe that there has been a violation On these
facts, and without ruling on the credibility of the testimony in issue, we
are satisfied that there is reasonable cause
See also Local Union No. 3, International Brotherhood of Electrical
Workers, AFL-CIO (Western Electric Company, Incorporated),' 141 NLRB
888, 893 (1963).