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08/08/75 Iron Workers Local Union v. National Labor

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


August 8, 1975

OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL-CIO, PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD, RESPONDENT.

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

August 8, 1975.

Order

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 the International Association of Bridge, Structural and Ornamental Iron Workers.

The International Association of Bridge, Structural and Ornamental Iron Workers agrees that it and its affiliated local unions, on the request of a glass and glazing contractor, will permit its members to perform work recognized to be within the jurisdiction of the Iron Workers under the jurisdictional agreement between the Brotherhood of Painters, Decorators and Paperhangers of America and the International Association of Bridge, Structural and Ornamental Iron Workers without the necessity of such glass or glazing contractor being signatory to the applicable local collective bargaining agreement, provided such glass or glazing contractor conforms to the wage, fringe benefits and other economic provisions contained in the applicable local collective bargaining agreement.

Signed this 22nd day of February, 1961.

JOHN H. LYONS,

General President

International Association of Bridge, Structural and Ornamental Iron Workers

National Joint Trade Board of the Glass and Glazing Industry

CHARLES U. PECK

EDGAR P. PERILSTEIN

DAVID C. PATRICK

G. W. FOSSIECK

R. J. MARTIN

(App. 316-17). Binswanger did not sign this agreement and neither the Painters nor the Glaziers were signatory to it. The only provision of this document which is relevant to the issue here is the first sentence. Therein the National Joint Trade Board of the Glass and Glazing Industry (the employers' group), of which Binswanger was a member, merely agreed "on behalf of its affiliated contractors" that their "work shall be assigned in accordance with the provisions of Articles I-IX of the agreement of February 22, 1961," between the Iron Workers and the Painters, referred to above. This document does not bind anybody, even the unions, to any particular arbitration procedure, much less Binswanger or any employer. It contains no reference whatsoever to Article X, which provides that jurisdictional disputes involving the interpretation or application of the Jurisdictional Agreement shall be settled by the respective business agents, by a representative designated by the two presidents, according to the "Green Book," or otherwise by reference to the National Joint Board for the Settlement of Jurisdictional Disputes. Nor does it make any reference to the Administrative Committee, infra . III. The third contemporaneous writing of importance is a separate

Administrative Committee

There shall be established an Administrative Committee, consisting of a representative of the International Association of Bridge, Structural and Ornamental Iron Workers and a representative of the Brotherhood of Painters, Decorators and Paperhangers of America designated by the respective General Presidents and a representative of the National Joint Trade Board of the Glass and Glazing Industry, to process disputes over the application, interpretation and administration of the Agreement of February 22, 1961, between the International Association of Bridge, Structural and Ornamental Iron Workers and the Brotherhood of Painters, Decorators and Paperhangers of America. These representatives shall meet monthly, or more often, as required. Decisions of this Administrative Committee shall be by unanimous action. In the event that unanimous action is not obtained, the dispute shall be referred to a third party for final and binding decision.

Signed this 22nd day of February, 1961.

JOHN H. LYONS,

General President

International Association of Bridge, Structural and Ornamental Iron Workers

L. M. RAFTERY,

General President

Brotherhood of Painters, Decorators and Paperhangers of America

EDGAR P. PERILSTEIN,

Chairman

National Joint Trade Board of the Glass and Glazing Industry

(App. 319).

Binswanger did not sign this agreement and the Chairman of the National Board for the Glazing Industry did not sign "on behalf of its affiliated contractors" as he had signed the agreement that work be "assigned in accordanc with the provisions of Articles I-IX." See II, supra . There is thus nothing in the contents of this document or in the signatures thereto that indicates that Binswanger Glass Co. agrees to have any of its disputes arbitrated by the Administrative Committee. All this agreement does is provide for the establishment of an Administrative Committee to meet at least monthly to process "disputes over the application, interpretation and administration of the Agreement of February 22, 1961 between the ... Iron Workers ... and the ... Painters." If any employer desires to submit his involvement in a dispute which also involves the two unions to this Committee for arbitration the Committee presumably could accept it and process the dispute, but there is nothing in this document requiring the Administrative Committee to accept such disputes or that indicates Binswanger or any glazing contractor has agreed to submit any of its disputes to this Administrative Committee or to abide by its decision in any matter.

Mr. Shepis, a member of the Administrative Committee, testified that the Committee had not "resolved any jurisdictional disputes between these two crafts ... since I have been a member" (App. 205). And there was no testimony that the Committee had ever resolved any jurisdictional disputes since its creation was authorized by the agreement of February 22, 1961. It was apparently, as its name indicates, an Administrative Committee and not a second Arbitration Committee for jurisdictional disputes.

To the extent that its powers were broadly stated to "process disputes" such general language must necessarily give way to the specific arbitration authority over jurisdictional disputes contemporaneously conferred by Article X, in accordance with the principle that a specific grant of power takes precedence over a possibly conflicting but more general provision. The Administrative Committee apparently was the type of last sentence of Article X:

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.

It apparently was what its name stated it to be, an Administrative Committee, designed to operate alongside the arbitration procedures of Article X but not to usurp the specific dominion of Article X over jurisdictional disputes. It would be absurd to conclude that the unions had simultaneously established two committees with arbitration authority over jurisdictional disputes . And it is the intent of the unions, not that of Binswanger, which must be controlling here with respect to jurisdiction to handle and decide jurisdictional disputes between the two unions. Thus, when the two unions established in Article X a complete and binding method for dealing with jurisdictional disputes, reposing final authority in the National Joint Board for the Settlement of Jurisdictional Disputes, *fn2 it is absurd to even suggest that they would intend to establish another body with identical authority also to process jurisdictional disputes . IV. Thus, there is nothing in the applicable documents from which any

person can discern any agreement by Binswanger or any Glazing contractor to be bound by any arbitration award that may be made by the Administrative Committee. The National Labor Relations Board arrived at the same conclusion and its decision in this respect is in complete accord with the written documents and the entire record in this case. Accordingly there is no proper basis for this court to overturn the decision of the National Labor Relations Board. The panel opinion represents an attempt 14 years after these documents were drafted to construe silence, non-signature by Binswanger, and Binswanger's specific refusal to agree to the arbitration provisions of Article X, as constituting agreement to a binding method of arbitrating jurisdictional disputes by the Administrative Committee to which Binswanger has never agreed and to which the statute provides he does not have to agree.*fn3

In this respect the panel opinion attempts to circumvent the decision of the United States Supreme Court in NLRB v. Plasterers' Union , 404 U.S. 116 (1971), which held that the mere existence of a voluntary arbitration method was not sufficient to bind the employer and that what was needed was his specific agreement to the arbitration method. Such specific agreement has not and cannot be shown here.*fn4 While it is arguable that the panel opinion recognizes this fact, since it remands the case to determine whether "the Glaziers and Binswanger are bound by the actions, respectively, of the International and employer organization," elsewhere the opinion contradictorily states:

The Iron Workers petition for review, again arguing that the parties have agreed upon a method of voluntary adjustment and that the Board erred in finding they had not. We are persuaded by the Iron Workers' argument .

Op. at 540. Carrying out this same thought the syllabus in the headnote interprets the panel opinion thusly:

On petition by such union for review, on the ground that the parties had agreed upon a method of voluntary adjustment, and on cross petition for enforcement, the Court of Appeals, Bazelon, Chief Judge, held that an administrative committee as provided for by agreement between employer and union , under proper construction of such agreement, was designed to arbitrate jurisdictional or work assignment and was an agreed-upon method of voluntary adjustment, within such statute .

Op. at 538. Headnote 3 is to the same effect:

3. Labor Relations 509

Administrative committee as provided for by agreement between employer and union , under proper construction of such agreement, was designed to arbitrate jurisdictional or work assignment disputes, and was an agreed-upon method of voluntary adjustment of such disputes within intendment of National Labor Relations Act section requiring National Labor Relations Board to conduct arbitration unless parties to dispute submit to Board satisfactory evidence that they have adjusted, or agreed upon methods for voluntary adjustment of, the dispute. National Labor Relations Act, ยงยง 8(b)(4)(ii), 10(k) as amended 29 U.S.C.A. 158(b)(4)(ii), 160(k).

Op. at 539 (emphasis added). Remand under such circumstances serves little purpose, for the principal issue supposedly to be determined by the Board has virtually been decided by the panel opinion.

Under the factual circumstances here, the proper disposition of the case is to affirm the decision of the Board, because the record does not show that Binswanger had agreed to arbitration by the Administrative Committee of this or any jurisdictional dispute, and the Iron Workers have not carried their statutory burden of producing "satisfactory evidence that [all parties] have ... agreed upon methods for the voluntary adjustment of the dispute." *fn5

It is thus submitted that (1) the Administrative Committee is not an agreed method for the voluntary adjustment of the jurisdictional dispute here at issue, and (2) that in any event Binswanger never agreed to such method. For these reasons the panel opinion is erroneous and en banc consideration should be granted to make this court's decision conform to the holding of Plasterers, supra , that the mere existence of a voluntary arbitration method is not sufficient to bind the employer in the absence of any showing that he had agreed thereto.


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