Marble Masons Subordinate Union No. 3

National Labor Relations Board - Board Decisions

Nov 30, 1971

194 N.L.R.B. 392 (N.L.R.B. 1971)

392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marble Masons, Terrazzo Workers and Tile Layers
Subordinate Union No. 3 of Kansas City, Bricklay-
ers, Masons and Plasterers International Union of
America, AFL-CIO and Winn-Senter Construction
Company and United Brotherhood of Carpenters
and Joiners of America , District Council of Kansas
City and Vicinity, AFL-CIO. Case 17-CD-I 54
November 30, 1971
DECISION AND ORDER QUASHING
NOTICE OF HEARING
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY,
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
charges filed by Winn-Senter Construction Company,
herein called Winn-Senter, on October 19, 1971,
alleging that Marble Masons, Terrazzo Workers and
Tile Layers Subordinate Union No. 3 of Kansas City,
Bricklayers, Masons and Plasterers International
Union of America, AFL-CIO, herein called Masons,
had violated Section 8(b)(4)(D) of the Act by
engaging in certain proscribed activity with the object
of forcing or requiring Winn-Senter to assign certain
work to Masons rather than to employees represented
by United Brotherhood of Carpenters and Joiners of
America, District Council of Kansas City and
Vicinity, AFL-CIO, herein called Carpenters.
Pursuant to notice, a hearing was held before
Hearing Officer Frederick C. Herzog on November 9,
1971, in Kansas City, Missouri. 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. No
briefs were filed.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed. The Board has considered the entire record
in this case and hereby makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
Winn-Senter, a Missouri corporation whose princi-
pal office is in Kansas City, Missouri, is'a general
contractor engaged in the building and construction
industry. In the course and conduct of its business it
annually performs services valued in excess of $50,000
outside the State of Missouri. Accordingly, we find, as
the parties have stipulated, that the Employer is
194 NLRB No. 74
engaged in commerce within the meaning of Section
2(6) and (7) of the Act and it will effectuate the
policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS
The parties stipulated, and we find, that Masons
and Carpenters are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The work in dispute consists of the installation of
polyester countertops on wood frames at the Alameda
Plaza Hotel construction site in Kansas City, Mis-
souri.
B. Background and Facts of the Dispute
Winn-Senter is the general contractor on a job now
in progress at the Alameda Hotel construction site in
Kansas City, Missouri. It began work on the project in
February 1969. Performance of the disputed work
herein commenced in early summer 1971. At that time
Winn-Senter assigned the work in question to its own
employees who are carpenters represented by Carpen-
ters with whom Winn-Senter has a contract by virtue
of its membership in the Builders ' Association of
Kansas City, Missouri . Winn-Senter has, no contract
with the Masons.
According to James M . Senter , an official of Winn-
Senter, on or about September 13, 1971, Boyd
Campbell , the Masons business manager, telephoned
Senter and claimed the disputed work . Three days
later, Campbell phoned Senter again and told him
that he "would of necessity have to take the thing to
the Joint Board ." On September 16, 1971, Senter
received a letter from the National Joint Board for the
Settlement of Jurisdictional Disputes , herein called
the Joint Board , requesting information pertaining to
the dispute . In response, Senter sent a telegram to the
Joint Board stating in his words , "It is my understand-
ing that we are not committed to the National Joint
Board with either of these crafts and, therefore, would
not necessarily abide by a decision that was made in
this dispute ." On October 8, 1971, the Joint Board
awarded the disputed work to the Masons. Neither
the Employer , the Builders Association of Kansas
City, Missouri , nor the Carpenters participated in the
Joint Board proceeding.
Senter testified that on October 19, 1971 , a picket
was placed upon the Alameda Plaza Hotel project.
The parties stipulated that the banner worn by the
picket "was placed there by Marble Masons Local 3
and it did say that `Winn -Senter Construction
Company is refusing to abide by the National Joint
MARBLE MASONS SUBORDINATE UNION NO. 3 393
Board decision' and the name of the union was there,
and then a final thing, `We have no dispute with any
other employer on this job.' " Senter stated that the
picket remained on the project until a Federal district
court granted a temporary injunction.
Campbell admitted that beginning on or about
September 9, 1971 , and continuing to the date of the
hearing, by various means including picketing for a
period of 8 working days, he, on behalf of the Masons,
did attempt to cause Winn-Senter to assign or reassign
the disputed work from the employees represented by
the Carpenters to employees represented by the
Masons.
The contract between the Builders' Association of
Kansas City, Missouri , and the Carpenters , to which
Winn-Senter is a party, contains a provision binding
the parties to the Joint Board. This contract, which
was originally entered into on April 1, 1966, expires
on March 31 , 1973. It was last revised on December 1,
1969, at which time the wage provisions were
amended and apparently the term of the agreement
was extended.
James Hutton , the labor relations representative of
the Builders ' Association of Kansas City, Missouri,
testified that at the time of the December 1, 1969,
revision , there was no attempt to modify any
provisions in the agreement other than the wage and
term clauses , although he conceded that there was
nothing to preclude the parties from deleting the Joint
Board provision.
C. Contentions of the Parties
Winn-Senter and the Carpenters contend that they
ceased to be bound by the decisions of the Joint Board
when that entity expired on September 30, 1969, and
that, since they allege they did not agree to the
provisions of the new Joint Board established by
agreement in 1970, there did not exist any method for
the voluntary settlement of the instant jurisdictional
dispute to which all necessary parties were bound.
The Carpenters further contends that it is not bound
to the Joint Board because of its current position of
"non-compliance" with Joint Board determinations.
The Masons contends that the Board has no
jurisdiction over the matter as Winn-Senter and the
Carpenters are bound to the Joint Board by virtue of
their current contract, which it argues was not
canceled by any change in the composition of the
Joint Board. The Masons also argues that, although
not a party to any contract calling for submission to
the Joint Board, it has effectively agreed to be bound
by virtue of having submitted the dispute to the Joint
Board.
D. Applicability of the Statute
Before the Board may proceed to the determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that the parties have not agreed upon
methods for the voluntary adjustment of the dispute.
For the reasons stated below, we find it unnecessary
to pass upon the merits with respect to a proper award
of the disputed work because from the record it
appears that all the parties involved in the instant
proceeding agreed to be bound by a determination of
the Joint Board.
The Joint Board, which was in existence when the
1966 contract between Winn-Senter and the Carpen-
ters was executed, had been created by agreement
between the Building and Construction Trades
Department, AFL-CIO, the Associated General
Contractors of America, herein called AGC, and eight
specialty contractors' associations. In 1968, AGC
gave notice of its intent to terminate that agreement
and, on September 30, 1969, the agreement was
terminated and the Joint Board expired. Thereafter,
on October 31, 1969, an interim agreement was
entered into between the Building and Construction
Trades Department, AFL-CIO, and certain contrac-
tors' associations to handle jurisdictional disputes
through Joint Board procedures until February 28,
1970. Subsequently, on April 3, 1970, a new Joint
Board was established by agreement between the
Building and Construction Trades Department,
AFL-CIO, and "Participating Contractors' Employ-
ers' Associations."
We find that the conduct of Winn-Senter and the
Carpenters, in failing to delete the Joint Board
provision in their contract on December 1, 1969, at a
time subsequent to the demise of the Joint Board on
September 30, 1969, and'while an interim Joint Board
agreement was in existence, had the effect of
reaffirming their prior commitment and indicating
they intended to be bound by decisions of the interim
Joint Board and any other more formal structure
which thereafter arose.
We further find that the Joint Board provision in the
agreement between Winn-Senter and the Carpenters,
together with the Masons effective agreement to be
bound to the Joint Board by virtue of having
submitted the instant dispute to the Joint Board,
establishes an agreed-upon method for voluntary
adjustment of the jurisdictional dispute involved in
this proceeding.
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.