Local 68, Wood, Wire & Metal Lathers Int'l Union

National Labor Relations Board - Board Decisions

Jun 10, 1963

142 N.L.R.B. 1073 (N.L.R.B. 1963)

LOCAL 68, WOOD, WIRE & METAL LATHERS INT'L UNION 1073
Local Union No. 68 , Wood, Wire and Metal Lathers International
Union, AFL-CIO and Acoustics & Specialties, Inc.
Local Union No. 68 , Wood, Wire and Metal Lathers International
Union , AFL-CIO and Construction Specialties Company. Cases
Nos. 27-CD-35 and 27-CD-37. June 10, 1963
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act, following
charges filed by Acoustics & Specialities, Inc., herein called Acoustics,
and by Construction Specialties Co., herein called Construction Spe-
cialties, alleging that Local Union No. 68, Wood, Wire and Metal
Lathers International Union, AFL-CIO, herein called Lathers Local
68 or Respondent, had induced and encouraged employees to strike for
the purpose of forcing or requiring Acoustics and Construction Spe-
cialties to assign particular work to members of the Respondent rather
than to members of United Brotherhood of Carpenters and Joiners of
America, Local Union No. 55, AFL-CIO, herein called Carpenters
Local 55. A hearing was held before Raymond A. Jacobson, hearing
officers, on June 4 and 28, 1962. All parties who appeared at the hear-
ing 1 were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing on the issues. The
rulings of the hearing officer made at the hearing are free from prej -
udicial error and are hereby affirmed. Briefs filed by Respondent and
jointly by the Employers and Carpenters Local 55 have been duly
considered.
Upon the entire record in this case, the Board makes the following
findings :
1. Acoustics & Specialties, Inc., a Colorado corporation, is in the
business of installing acoustical ceilings. During the 1961 calendar
year Acoustics purchased materials, such as ceiling tile, adhesive, etc.,
in excess of the sum of $50,000 per annum from sources outside the
State of Colorado. During the same year Acoustics performed services
exceeding $50,000 in value for firms in interstate commerce.
Construction Specialties Company, a Colorado corporation, is en-
gaged in the acoustical tile business. During the 1961 calendar year
Construction Specialties purchased materials from sources outside the
State of Colorado which cost in excess of $50,000. During the same
year Construction Specialties performed services in an amount exceed-
ing $50,000 for firms engaged in interstate commerce.
'Northern Colorado Building and Construction Trades Council and Colorado State
Council of Carpenters of the United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, intervened on the side of the Respondent. Sheet Metal Workers International
Association, Local No. 9, intervened, but neither participated in the hearing nor filed a
brief.
142 NLRB No. 101.
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that Acoustics & Specialties, Inc., and Construction Special-
ties Company, herein jointly referred to as the Employers, are engaged
in commerce within the meaning of the Act and that it will effectuate
the policies of the Act to assert jurisdiction in this proceeding.
2. The parties stipulated, and we find, that Lathers Local 68 and
Carpenters Local 55 are labor organizations within the meaning of
Section 2 (5) of the Act.
3. The dispute :
Facts
The Employers both contracted to install acoustical ceilings of the
backerboard type. The work involved, which is the work in dispute
in this proceeding, included the following : the installation of vertical
hanger wires attached in parallel rows to the concrete slab, wood joint,
or other structure forming the underside of the floor above ; the attach-
ing of 11/2-inch iron channel in horizontal parallel rows by binding the
lower ends of the hanger wire around the channel bars; the attaching
of nailing bars by wire saddle ties at right angles to the channel bars
in horizontal parallel rows; and, finally, the attaching of backerboard
to the nailing bars by mean of angular nails. All the parties agree that
the work of attaching acoustical material other than plaster to the
backerboard is carpenter work.
Beginning April 5, 1962, Acoustics, as subcontractor, began install-
ing acoustical ceilings in the Bear Creek School in Jefferson County,
Colorado. On April 11, 1962, the business agent of Lathers Local 68
called Acoustics and complained about the assignment of certain work
to Acoustics' employees who were members of Carpenters Local 55.
The Lathers Local 68 representative stated that the work of installing
hanger wires and 11/2-inch black iron channel should be assigned to
lathers rather than to carpenters, especially in view of a statewide
agreement between the Carpenters and Lathers Internationals that
such work should be assigned to lathers in order to end jurisdictional
disputes between the two unions. Acoustics replied that it was not a
party to such agreement and was not bound by it. On April 12, 1962,
pickets appeared at the job site carrying signs stating: "Acoustics and
Specialties substandard wages and conditions, Lathers Local 68."
Picketing continued on April 13 and 16, at which time the general con-
tractor ordered Acoustics off the job temporarily. Thereafter Acous-
tics returned to the job without further picketing resulting.
Construction Specialties Company was subcontractor for the in-
stallation of acoustical ceilings at the Colorado State Mental Com-
plex, Fort Logan, Colorado. Although the record does not indicate
that Lathers Local 68 specifically demanded the work in dispute,
pickets carrying signs reading "Construction Specialties Co. sub-
standard wages and conditions, Lathers Local No. 68" appeared at the
jobsite on May 15, 1962, and reappeared on May 25, 28, and 29, carry-
LOCAL 68, WOOD, WIRE & METAL LATHERS INT'L UNION 1075
ing the same signs. Members of other crafts refused to cross the
picket line. Subsequently work at the project resumed with no fur-
ther picketing.
Although both contractors regularly employ on a full-time basis
carpenters who are members of Carpenters Local 55, neither con-
tractor has a collective-bargaining agreement with that labor orga-
nization on behalf of its carpenter employees. Neither union has
been certified as bargaining representative of employees performing
the dispute work.
Contentions of the Parties
The Employers and Carpenters Local 55 jointly contend that the
assignment of the work in dispute to carpenters was the correct one
since carpenters have the requisite skill, are cheaper to employ, and
have been chosen by the Employers to do the work. They further
contend that the Carpenters-Lathers agreement, referred to herein-
after, cannot be determinative because the Employers were not parties
to the agreement and the practice in the Denver, Colorado, area is
for carpenters to perform the work in dispute.
Lathers Local 68 contends that there is no jurisdictional dispute
within the meaning of Sections 8(b) (4) (D) and 10(k) of the Act as
there is in effect an agreement which adjusts the dispute. Lathers
Local 68 further contends that, if there is such a dispute, the work
in question should be assigned to lathers on the basis of historical
practice, the agreement between the unions discussed below, and the
training and skill of the competing groups in performing the work.
These contentions, in large part, rest upon the "Interim Agreement"
entered into on January 6, 1962, by representatives of the Carpenters
and Lathers International Unions at the direction of the presidents
,of the Internationals. The agreement attempts to settle the long-
standing jurisdictional dispute between the unions relating to the
installation of acoustical ceilings by assigning all the work of install-
ing the backerboard system, except the installation of the acoustical
tile itself, to lathers while assigning the entire grid system instal-
lation of acoustical ceilings to carpenters. It therefore assigns cer-
tain work on the backerboard system which had customarily been
performed by carpenters to lathers while, as a quid pro quo, assign-
ing what had been lathers' work on the grid system to carpenters.
The agreement states that :
It is the purpose of this agreement to improve relations be-
tween the organizations, eliminate work stoppages, settle juris-
dictional disputes directly between the two organizations, and
mutually to assist each organization to secure work coming within
its recognized jurisdiction.
712-548-64-vol. 142-69
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The agreement was approved by Lathers Local 68 and by District
Council of Carpenters of which Local 55 is a member. Carpenters
Local 55 representatives constitute a majority of the members of the
District Council and two of the business agents of Local 55 were
present during the negotiations leading to the agreement.
Applicability of the Statute
Before the Board may proceed to a determination of dispute
pursuant to Section 10 (k) of the Act, it must be satisfied that there
is reasonable cause to believe that Section 8 ( b) (4) (D) has been
violated.
The record shows that Respondent picketed both the Bear Creek
School and the Colorado State Mental Complex jobs with an avowed
object of forcing or requiring the assignment of certain work to its
members rather than to members of Carpenters Local 55 who were
then performing the work. Work stoppages occurred as a result of
the picketing.
Respondent contends that the Board is precluded from making a
determination of the dispute because of the agreement between the
Carpenters and Lathers Union pertaining to the dispute . However,
the parties agree that the Employers never agreed to be bound by,
nor have they adhered to , the terms of the Carpenters -Lathers
agreement.
In Local Union 825, International Union of Operating Engineers,
AFL-CIO ( Schwerman Co. of Pa., Inc. ), 139 NLRB 1426, the Board
decided that an interunion agreement settling a jurisdictional dispute
to which the employer was not a party was not dispositive of a juris-
dictional dispute under Section 10(k) of the Act. Accordingly, we
find Respondent 's contentions without merit.
On the basis of the entire record, we find that there is reasonable
cause to believe that a violation of Section 8(b) (4) (D ) has occurred,
and that the dispute is properly before the Board for determination
under Section 10 (k) of the Act.
Merits of the Dispute
In determining a dispute such as this, the points urged by the
parties may be helpful in reviewing the evidence supporting the
claims of the parties.
1. Assignment of the contractors who performed the work : Both
Acoustics and Construction Specialties used carpenters exclusively to
perform the work in dispute. However, this assignment is not indic-
ative of the Employers' general practice. The record indicates
that prior to the Carpenters-Lathers agreement the Employers used
carpenters on "small" jobs, but lathers on "large" jobs. Since the
LOCAL 68, WOOD, WIRE & METAL LATHERS INT'L UNION 1077
agreement the Employers have refused to hire lathers. The Em-
ployers also indicated that they used carpenters because it was less
costly than to employ lathers.
2. Skill and training of the competing groups: Throughout the hear-
ing the Employers maintained that their "regular" employees were the
only group sufficiently skilled to perform the work in dispute satis-
factorily. They stated that it took a number of months to train a car-
penter to perform this work, the length of time depending on the indi-
vidual employee. They insisted that lathers supplied to them by the
Respondent were not as skilled as their "regular" employees, although
the manager of the acoustical department of Construction Specialties
admitted that the skill of a newly hired lather was greater than that
of a newly hired carpenter and that when he hired lathers they did
not displace his "regular" employees. In addition, Respondent as part
of its regular apprenticeship program gives training in the installation
of suspended ceilings of the backerboard type; the Carpenters Union
has no such program. Accordingly, it would appear that the Em-
ployers' contention that carpenters are better qualified to perform the
disputed work in reality is merely a claim that their permanent em-
ployees, who happen to be members of Local 55 of the Carpenters Un-
ion, are better qualified than lathers to perform such work.
3. Area practice : The representative of Acoustics testified that 53
percent of the iron channel was installed by lathers and 47 percent
by carpenters. The representative of Construction Specialties who
testified did not know the exact amount of iron channel installed by his
company or the percentage installed by the competing crafts, but
indicated that those percentages would probably be very similar to
those of Acoustics.
4. Agreement between the competing unions: Respondent and
Colorado State Council of Carpenters, the parent body of Carpenters
Local 55, contend that, if there is a jurisdictional dispute, the agree-
ment between the Lathers and Carpenters Unions on a statewise basis,
which in effect divides the work between the competing groups, should
be the controlling factor in a situation such as the instant one.
The dispute between the two unions regarding the installation of
the backerboard system of suspended ceilings is of long standing.
Various efforts have been made to resolve the difficulty, and in 1959
the International Unions tried to draw up an agreement which would
settle the dispute permanently. This attempt failed, in part, ap-
parently because of unusual practices in some geographic areas which
were not specified in the record. However, in lieu of a single nation-
wide agreement, the Internationals decided to attempt, where possible,
to draw up area agreements, which would reflect the basic agreement
between the unions as to how the disputed work was to be divided.
Colorado was one area where such an agreement was negotiated. Ac-
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cording to this agreement, the disputed work was to be performed by
lathers.
Employers argue that no effect should be given to the agreement be-
cause it was negotiated without the approval of the locals immediately
involved. This contention is without merit. The record indicates that,
although the Carpenters-Lathers agreement was negotiated by inter-
national representatives of the two unions, the interests of the locals
most directly concerned were continuously represented. Lathers
Local 68 ratified the agreement and representatives of Local 55 of
the Carpenters participated directly in the negotiations leading to sign-
ing of the agreement. Further, as noted earlier, representatives of
Local 55 constitute a majority of the membership of the Carpenters
State Council which also ratified the agreement. Therefore, although
the membership of Local 55 did not directly vote on the agreement at
any time, its representatives were fully cognizant of the agreement and
did not at any time prior to its adoption voice their disapproval.
Conclusions as to the Merits of the Dispute
In International Association of Machinists (J. A. Jones Construc-
tion Company), 135 NLRB 1402, the Board set forth the following
criteria to be considered in the making of an affirmative award under
the CBS decision : 2
The Board will consider all relevant factors in determining who
is entitled to the work in dispute, e.g., the skills and work involved,
certifications by the Board, company and industry practice, agree-
ments between unions and between employers and unions, awards
of arbitrators, joint boards and the AFL-CIO in the same or re-
lated cases, the assignment made by the employer, and the efficient
operation of the employer's business. [Emphasis supplied.]
Although there is some dispute between the parties as to the skills
possessed by the competing groups, Respondent relies basically upon
the Carpenters-Lathers agreement regarding the division of the work,
whereas the Employers and Local 55 place their main emphasis upon
the assignment made by the Employers and their judgment as to the
most efficient method of operation of their businesses. However, the
Board in fulfilling the functions assigned to it under Section 10(k)
must act very much like an arbitrator, balancing all of the interests
involved and aiming at a solution which will, in its judgment, finally
resolve the dispute. The instant dispute between carpenters and
lathers has been before the Board on two other occasions,3 and we are
2N.L.R .B. v. Radio & Television Broadcast Engineers Union Local 1212, eto. ( Columbia
Broadcasting System), 364 U . S. 573.
3 United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local 1622
(0. R. Karst ), 139 NLRB 591; and Wood, Wire & Metal Lathers International Union,
Local No. 328, AFL-CIO (Acoustics & Specialties , Inc.), 139 NLRB 598
LOCAL 68, WOOD, WIRE & METAL LATHERS INT'L UNION 1079
well aware of the problems involved. In attempting to resolve this
dispute, individual interests in a particular case may have to be sub-
ordinated to a practical and effective solution of the overall problem.
As noted earlier the Carpenters-Lathers agreement is an attempt by
the unions to eliminate jurisdictional disputes between them. Like all
compromises it satisfies neither side completely, but is an attempt to
replace the picket line by the bargaining table. That this solution may
discommode an individual union member or cause an employer to
divide his work between the various crafts differently than before the
agreement cannot be gainsaid.
In the instant case the criteria which have been determinative in
most of the jurisdictional dispute cases which we have decided, are
not present. The Employers do not have collective-bargaining agree-
ments with either union; neither union is the certified bargaining rep-
resentative of the Employers' employees; the skills involved are at
least in part possessed by the members of both unions; company and
area practice, at least prior to the Carpenter-Lathers agreement, is
split almost evenly; and, apparently, efficiency of operation is not ma-
terially affected since the Employers have regularly used members of
both unions to perform the disputed work. In this state of balance,
we consider it appropriate to give effect to the agreement between the
two Internationals settling their jurisdictional dispute. By so doing
the Board will be encouraging unions to settle such disputes by agree-
ment, a desirable policy. In making this determination, we are assign-
ing the disputed work to lathers, who are represented by Lathers Local
68, but not to Lathers Local 68 or its members.'
• Member Rodgers would assign the disputed work to carpenters rather than to lathers
on the basis of the following factors : training and skill of employees , area practice, and
the Employer 's assignment of the disputed work. He would not give controlling, or indeed
any significant weight , so far as we can perceive , to the Carpenters -Lathers agreement.
We too have considered the factors referred to by Member Rodgers. But we have also
taken into account the fact that the present dispute is representative of a large number
of similar disputes which have existed over many years and in many places in the United
States , and that the Carpenters -Lathers agreement represents an attempt by compromise
to resolve these disputes, at least in the State of Colorado , for the present and the future,
on a fair and equitable basis. We think that this is an important circumstance to be
considered in making a jurisdictional dispute award.
An employer 's assignment of the disputed work cannot be in all cases the controlling
factor in determining jurisdictional disputes . To make this the touchstone for such dis-
pute determinations would constitute a reversion to Board practice explicitly rejected by
the Supreme Court in the CBS decision . (N.L.R.B. v. Radio c6 Television Broadcast
Engineers Union Local 1212, etc. (Columbia Broadcasting System ), 364 U . S. 573.) Nor
can efficiency alone always be the determinant . Employers "normally select and assign
their own individual employees according to their best judgment ." ( Id. at p. 582.) The
Supreme Court recognized in the CBS case that the Board , under Section 10(k), must
exercise powers which are "broad and lacking in rigid standards to govern their applica-
tion." (Id. at p . 583.) However , it also said that with a knowledge of standards gen-
erally used by "arbitrators , unions, employers , joint board and others in wrestling with
this problem" the Board could perform the task entrusted to it by Congress . (Id. at p.
583.) Applying this broad directive , we are convinced that the assignment of the dis-
puted work to lathers rather than to carpenters is more in harmony with the purpose
and scope of Section 10(k).
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the foregoing, we find that Respondent was entitled to
demand the work in dispute since such work should properly be as-
signed to lathers.
DETERMINATION OF DISPUTE
On the basis of the foregoing findings, and the entire record in the
case, the Board makes the following Determination of Dispute pur-
suant to Section 10 (k) of the Act :
Employees engaged as lathers are entitled to the assignment of the
work of installing acoustical ceilings of the backerboard type for
Acoustics R Specialties, Inc., on its project at the Bear Creek School
and for Construction Specialties Company on its project at the Colo-
rado State Mental Complex.
MEMBER RODGERS , dissenting :
I do not agree that the disputed work in the instant case-the instal-
lation of "backerboard" acoustical ceilings-should be awarded to
lathers. In my opinion, the majority has failed to follow in this case
the standards and criteria which the Board established in prior cases
for the resolution of jurisdictional disputes.'
The installation of a "backerboard" acoustical ceiling involves four
steps or operations: (1) placing hanger wires in the overhead struc-
ture; (2) suspending 11/2-inch black iron channel from the hanger
wires; (3) attaching nailing channel to the black iron channel; and
(4) nailing the "backerboard" to the nailing channel.'
The majority has found that under the Company and area practice
the work has been "split almost evenly" between the competing groups.
However, contrary to their finding, the record clearly shows that the
area practice , as well as the practice of the Employers, is for carpenters
to do the work involved in steps (3) and (4) of the installation proc-
ess? On the other hand,, the work involved in the first two steps has
6 See for example , Internatioinal Association of Machinists ( J. A. Jones Construction
Company ), 135 NLRB 1402.
6 The acoustical tile is then attached to the backerboard , but the work involved in this
process is not in dispute here.
7 Thus Bernard Bump, an officer of Acoustics , testified that In the 25 years that he had
been in business , carpenters have installed substantially all the nailing channel and
backerboard in the Denver area ; and that since 1953, all such work done by Acoustics
has been performed , with rare exception , by carpenters . Bump's testimony concerning
the practice in the Denver area was corroborated by : James Hult, Construction 's acous-
tical department manager, who testified that in his 6 years in the business this work has
always been performed by carpenters, and that 100 percent of Construction 's nailing
channel and backerboard work since 1955 has been done by carpenters ; Frank Wishard,
acoustical department manager for another Denver firm, who testified that since 1958,
all of his firm's nailing channel and backerboard has been installed by carpenters, with
but a few exceptions ; Roy Bergh , joint representative of the United Brotherhood of Car-
penters ; Robert Lamping, presidient of the Carpenters District Council ; and Anthony
Mulligan , Respondent 's business agent.
LOCAL 68, WOOD, WIRE & METAL LATHERS INT'L UNION 1081
been performed by both lathers and carpenters, with the work having
been rather evenly divided between them 8
Also contrary to the majority's finding, I do not believe that the
record in this case supports the conclusion that the competing groups
herein are equally skilled and trained in performing the disputed work.
It may be quite true that either a lather or a carpenter, with the nor-
mal skills possessed by such tradesmen, could in theory be trained to
install backerboard acoustical ceilings in the same amount of time
and with the same amount and type of instruction. However, in deter-
mining disputes in these cases, I do not-think the Board should accord
decisive weight to the potential skills of tradesmen who are not in-
volved in the case before the Board. Rather, I think the Board should
evaluate the real skills and training of those competing for the work in
dispute; and I believe that the Board must ascertain whether or not
the employees to whom the work has been assigned are qualified to do
the work. Here, as tacitly admitted by the majority, the group of
employees presently engaged in performing the disputed work, the
carpenters, would appear to be not only able to do the work competent-
ly, but also appear better qualified to do the work than the group which
seeks to change the Employers' assignment."
Nor do I believe the majority has given due weight to the efficient
operation of the Employers' businesses. It appears from the record
that it would cost the Employers more to employ lathers than carpen-
ters, that there has been some difficulty in the past in obtaining lathers
because of the small number of them in the area,10 and that, on a num-
ber of occasions, lathers had performed the disputed work in an
unsatisfactory manner.
In view of the skill and training of the Employers' employees, the
area practice, and the Employers' assignment of the disputed work,
it is clear that the carpenters' claim to the work of installing the nail-
ing channel and the backerboard is superior to that of the lathers.
With respect to the installation of the hanger wires and black iron
channel, taking into account the same factors, the most that can be said
is that the lathers' claim is as good as the carpenters'. Thus, on bal-
8 For example , in the last 10 years, lathers have installed 53 percent of the total footage
of, black iron channel put up by Acoustics , and the carpenters 47 percent ; and carpenters
have done the work (black iron channel and hanger wires ) on 64 percent of the contract
jobs, and the lathers 36 percent. This apparent contradiction is accounted for by the
fact that the Employers used lathers when they feared their failure to do so would result
in a dispute , which usually involved the larger jobs.
I base this conclusion on the facts set forth above which show that both before and
after the Carpenters-Lathers agreement of January 1962, the carpenters have had far
greater training and experience in the disputed work than the lathers . In this regard, I
additionally note that Anthony Mulligan , Respondent 's business agent, testified that only
about 5 percent of Respondent 's members are employed in acoustical work in the course
of a year, and that the average lather spends only a small portion of his time doing
acoustical work.
10 There are only 145 men in the Lathers ' local whereas there are about 2,800 men in
the Carpenters ' local.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ante, and considering the entire installation process as one operation,
the case for the carpenters, in my opinion, is far more compelling.
In these circumstances, I am of the opinion that the Carpenters-
Lathers agreement should not be the deciding, and in effect, controlling
factor in this dispute, particularly where, as in the instant case, the
parties to the agreement 11 have failed to abide by it.'2
Accordingly, I would award the disputed work to carpenters em-
ployed by the Employers.i3
MEMBER LEEDOM, dissenting :
I cannot agree with the majority that the Carpenters-Lathers agree-
ment is entitled to controlling weight in the determination of this dis-
pute, and that the work in dispute should therefore be assigned to
lathers.
The work in dispute has been assigned by the Employers to car-
penters who are their regular employees. These carpenters have the
skills necessary to perform the disputed work; their employment is
not inconsistent with past practices; and it appears to be more efficient
and less costly for the Employers to utilize their carpenter-employees
for the entire job than for them to hire lathers for the sole purpose of
performing only a part of the work of installing acoustical ceilings.
These factors all support the assignment of the work to the Employers'
carpenter-employees.
On the other hand, and supporting an assignment to lathers, are the
facts that lathers also have the necessary skills or can readily acquire
them, and their employment would similarly not be inconsistent with
past practices. The Carpenters-Lathers agreement also is a factor sup-
porting such an assignment.
11In determining how much , if any , weight to accord such an agreement, I am not
inclined to overlook , as the majority apparently has, the fact that the Employers herein
were not parties to this agreement purporting to settle , at least in the State of Colorado,
the long-standing dispute between the Carpenters Union and the Lathers Union. An
employer is an interested and essential party to a jurisdictional dispute. I believe the
majority has committed error in permitting this agreement to govern the disposition of
this case , thereby imposing upon the Employers herein, the terms of an agreement which
they had no part in negotiating and to which they were not parties. Further , it is even
questionable whether Carpenters Local 55 was bound by this agreement in view of its
failure to ratify it.
19I agree with the majority that encouraging the parties to settle their differences by
voluntary agreement is a salutary policy. However , I do not believe it a proper function
for the Board to enforce such agreement , which is exactly what the majority has done
herein by making the agreement the controlling factor, when it appears that one of the
parties to the agreement is flaunting it. Tri-County Building and Construction Trades
Council, etc. ( The John G . Ruhien Construction Company ), 137 NLRB 1444; Local 1,
Bricklayers, Masons, and Plasterers International Union, et al. (Consolidated Engineering
Co., Inc.), 141 NLRB 119
'a I do not see this as a case where there is validity to the claims advanced by all
contending parties, and I believe it is clear from what I have said above that my decision
to grant the work to the Carpenters is by no means based solely on the Employers' work
assignment , as is implied in the majority decision . See my concurring opinion in the
Philadelphia Typographical Union Local No. 2 (Philadelphia Inquirer, etc.) case, 142
NLRB 36.
ARKANSAS-LOUISIANA GAS COMPANY 1083
In these circumstances, in my opinion, the ultimate determination
of this dispute must rest on a balancing of the weight of the Em-
ployers' assignment to their regular carpenter-employees, and the
efficiencies resulting therefrom, against the weight of the Carpenters-
Lathers agreement. In this case, I think, the Employers' assignment
weighs the heavier. I do not of course believe that an employer's
assignment should be given controlling weight; 14 but I do think it is
entitled to substantial weight, and should govern the result in the
absence of countervailing factors of greater weight. On the facts
revealed by this record I cannot accord the Carpenters-Lathers agree-
ment such greater weight, let alone controlling weight. I have no
quarrel with the proposition that it is a desirable policy for the Board
to encourage the settlement of jurisdictional disputes by agreement.
It is obvious here, however, that the agreement was consummated with-
out consultation with any interested employer representatives, either
locally or nationally; and in addition, the Carpenters-Lathers agree-
ment has, in fact, settled nothing.
Under all the circumstances, I would award the disputed work to
the Employers' carpenter-employees. Consequently, I dissent from
my colleagues' award of that work to lathers.
*4 See my dissenting opinion in Philadelphia Typographical Union, Local No. 2 (Ph3ia-
delphia Inquirer, Division of Triangle Publications, Inc.), supra.
Arkansas-Louisiana Gas Company and Chauffeurs, Teamsters
& Helpers, Local Union No. 878, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America. Case No. 26-CA-1279. June 11, 1963
DECISION AND ORDER
On November 21, 1962, Trial Examiner C. W. Whittemore issued
his Intermediate Report herein, finding that the Respondent engaged
in unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Intermediate Report. Thereafter, the Respondent filed ex-
ceptions to the Intermediate Report and a supporting brief. The
General Counsel filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Leedom].
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record. The Board affirms the Trial Exam-
142 NLRB No. 117.