National Labor Relations Board v. Plasterers' Local Union No. 79, Operative Plasterers' & Cement Masons' International Association

United States Supreme Court

404 U.S. 116

National Labor Relations Board  v.  Plasterers' Local Union No. 79, Operative Plasterers' & Cement Masons' International Association, AFL-CIO, et al.

Certiorari to the United States Court of Appeals for the District of Columbia Circuit

No. 70-63  Argued: October 13, 1971 --- Decided: December 6, 1971^[1]

Two unions, the Plasterers and the Tile Setters, in accordance with procedures binding them to arbitrate, submitted to a board their jurisdictional dispute over work to be done for a contractor. The board awarded the work to the Plasterers. When the contractor and the Tile Setters refused to abide by the arbitration board's decision, the Plasterers, to force reassignment of the work, picketed that contractor as well as another contractor employing members of the Tile Setters. Neither contractor was subject to the arbitration agreement. Charges were thereupon filed against the Plasterers for allegedly violating § 8 (b)(4)(D) of the National Labor Relations Act, and a hearing to resolve the dispute was held under § 10 (k), which directs the National Labor Relations Board (NLRB) to "hear and determine the dispute out of which [the alleged] unfair labor practice has arisen" unless "the parties to such dispute" agree upon a settlement. The NLRB, after weighing the arbitration board's decision "and all [other] relevant factors," awarded the work to the Tile Setters. When the Plasterers refused to abide by the award, a § 8 (b)(4)(D) complaint was filed against them and they were found to have violated that provision. Both contractors, which had collective-bargaining agreements with the Tile Setters (but not with the Plasterers) and had been employing members of that union to perform the operation involved in the jurisdictional dispute, contended that it was far more efficient for them to use tile setters than plasterers. The Court of Appeals on review set aside the NLRB's order, holding that it is not the employer but the rival unions that are parties to the jurisdictional dispute to which § 10 (k) applies.

Held:

The employers here, both of which had substantial financial stakes in the outcome of the § 10 (k) proceeding, were "parties to the dispute" within the meaning of that provision and the NLRB was empowered to determine the jurisdictional dispute under that provision in this case where the competing unions, but not the employers, had agreed upon a voluntary method of adjustment. Highway Truckdrivers, Local 107 (Safeway Stores, Inc.), 134 N.L.R.B. 1320, distinguished. Pp. 123-137.

142 U.S. App. D.C. 146, 440 F. 2d 174, reversed.

WHITE, J., delivered the opinion for a unanimous Court.

Norton J. Come argued the cause for petitioner in No. 70-63. With him on the brief were Solicitor General Griswold, Richard B. Stone, Arnold Ordman, Dominick L. Manoli, and Marvin Roth. Wayne S. Bishop argued the cause and filed a brief for petitioners in No. 70-65.

Donald J. Capuano argued the cause for respondents. With him on the brief were Martin F. O'Donoghue and Patrick C. O'Donoghue.

Laurence Gold argued the cause for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance. On the brief was Thomas E. Harris.

Briefs of amici curiae urging reversal were filed by Joseph M. Stone, George L. Plumb, and Betty Southard Murphy for Associated General Contractors of America et al.; by Robert J. Connerton, Arthur M. Schiller, and Jules Bernstein for the Laborers' International Union of North America, AFL-CIO; and by Albert E. Jenner, Jr., and Chester T. Kamin for the Scientific Apparatus Makers Assn.

Louis Sherman and Elihu I. Leifer filed a brief for the Building and Construction Trades Department, AFL-CIO, as amicus curiae urging affirmance.

Notes

1. Together with No. 70-65, Texas State Tile & Terrazzo Co., Inc., et al. v. Plasterers' Local Union No. 79, Operative Plasterers' & Cement Masons' International Assn., AFL-CIO, et al., also on certiorari to the same court.