Before BAZELON, Chief Judge, WRIGHT, MCGOWAN, TAMM, LEVENTHAL, ROBINSON, MACKINNON, ROBB and WILKEY, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT. 1975.CDC.169
Iron Workers Local Union No. 167, International Association
PER CURIAM: The motion for rehearing en banc initiated by a member of the Court in regular active service is denied, a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure).
Statement of Circuit Judge MacKinnon concurred in by Judges Tamm and Robb, explaining vote to en banc , attached hereto.
Statement Explaining Vote to En Banc
MACKINNON, C.J.: The principal issue in this case is whether the National Labor Relations Board was correct in deciding under section 10(k) of the National Labor Relations Act that Binswanger Glass Co. has not "agreed upon methods for the voluntary adjustment of ... [disputes]" *fn1 between the Iron Workers' union, the Glaziers' union and Binswanger. An associated question is whether the Administrative Committee constituted a method for the voluntary adjustment of this jurisdictional dispute. The answers to these questions depend principally upon three written documents signed on the 22nd day of February, 1961. I. The first document is the Jurisdictional Agreement between the Iron
Workers and the Painters' Union. The Glaziers' Union is an affiliate of the Painters' Union. The Jurisdictional Agreement consists of a preamble and ten articles, I through X. The first nine, designated by Roman numerals I through IX, specify the jurisdiction of each of the two unions over different types of work. Articles VII and VIII assign the installation of metal curtain-wall construction and metal panels to the Iron Workers (App. 324), while Article VIII assigns the installation of the glass panels to the Glaziers (App. 324-325). However, the Glaziers' union has consistently taken the position that it has never become a party to the Jurisdictional Agreement between the Iron Workers and the Painters unions assigning curtain-wall construction to the Iron Workers, and in its capacity as contractor Binswanger has consistently assigned such work to the Glaziers. In a section 10(k) proceeding the National Labor Relations Board awarded the instant curtainwall work to employees represented by the Glaziers' union (App. 20-23).
Article X of the Jurisdictional Agreement between the Iron Workers and the Painters provides a method of handling disputes arising out of the interpretation or application of the prior nine Articles: X
If a dispute should arise over the interpretation or application of this agreement, the two business agents of the respective unions shall make a conscientious endeavor to settle the dispute locally. Should the business agents fail to consummate a satisfactory understanding, they shall immediately draw up a joint letter describing the disputed work, including pictures and blueprints of the work in dispute, sign the same jointly, and forward copies to the Presidents of their respective international unions.
Disputes forwarded to the respective General Presidents shall be referred to a designated representative for immediate adjustment. In any case where the representatives appointed by the General Presidents to adjust the dispute fail to arrive at a satisfactory disposition in a reasonable period of time, the dispute will be resolved in the following manner.
In localities where recognized plans exist, as per Article IV, Section 1 of the "Green Book" amended January, 1958, they shall prevail; otherwise, the dispute will be immediately referred to the National Joint Board for the Settlement of Jurisdictional Disputes.
There shall be no stoppage of work while the dispute is in process of settlement.
Committees designated by the respective General Presidents shall meet periodically to review work covered by this agreement and to consider new problems which arise in order to adjust same.
(App. 325). This Article is addressed solely to disputes between the two unions. It specifies the manner in which those two unions, the Iron Workers and the Painters, will handle jurisdictional disputes. There is not one word in Article X that even mentions any employer, though an employer could agree voluntarily to submit disputes covered by that Article, and to which it was a party, to the same settlement and arbitration procedure. The sole signatories to Article X are the general presidents of the Iron Workers' and the Painters' unions.Neither Binswanger nor the Glazing Contractors were parties thereto. II. The next writing of importance to the issues here is a work
The National Joint Trade Board of the Glass and Glazing Industry, on behalf of its affiliated contractors, has agreed work shall be assigned in accordance with the provisions of Sections I-IX of the agreement of February 22, 1961 , between the Brotherhood of Painters, Decorators and Paperhangers of America and ...