Teamsters, Local 627

TEAMSTERS , LOCAL 627 International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Local #627 and The Associated General Contractors of Illinois (Geo. E. Hoffman & Sons, Inc.) Interna- tional Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America, Local # 15. Case 38-CD-62 January 26, 1972 DECISION AND ORDER QUASHING NOTICE OF HEARING BY MEMBERS FANNING, JENKINS, AND KENNEDY This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following charges filed by The Associated General Contractors of Illinois on July 1, 1971. The charges allege, in sub- stance, that International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local # 627, engaged in a strike or induced or en- couraged employees to engage in a strike; and threat- ened, coerced, and restrained Geo. E. Hoffman & Sons, Inc., a general contractor, with an object of forcing or requiring Hoffman and its subcontractors, C. A. Walker Truck Lines, Inc., and Long Rock Co., to as- sign particular work' to employees represented by Lo- cal 627 rather than to employees represented by Local 15. Pursuant to notice, a hearing was held before Hear- ing Officer Michael B. Ryan, on September 30 and October 1, 1971. All parties appeared at the hearing and were afforded full opportunity to be heard, to ex- amine and cross-examine witnesses, and to adduce evi- dence bearing on the issues. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The rulings of the Hearing Officer made at the hear- ing are free from prejudicial error and are hereby affirmed. Local 627, The Associated General Contrac- tors of Illinois, and C. A. Walker Truck Lines, Inc., filed briefs in support of their positions, and they have been duly considered. Upon the entire record' in this case, the Board makes the following findings: i A notice of hearing was issued August 10, 1971, setting forth the dis- puted work as follows "All truck driving duties related to the project of widening and resurfacing the fifteen mile stretch of Illinois Routes 90 and 91 near Princeville , Illinois, performed by Long Rock Stone Company or by C A Walker Truck Lines, Inc ' On November 23, 1971, the Board received from Local 627 a letter which moved that the transcript be corrected in certain respects All parties were duly notified thereof and no objections thereto were received within the time provided therefor Having duly considered the matter , the Board, by order oated December 8, 1971, granted the motion and ordered that the record herein be corrected accordingly 195 NLRB No. 13 1. THE BUSINESS OF THE EMPLOYER 93 Geo. E. Hoffman & Sons, Inc., is a Delaware corpo- ration with its principal office located at Peoria, Il- linois. It is engaged in the general contracting business. During the past 12 months, Hoffman purchased materials and supplies valued in excess of $50,000 from outside the State of Illinois which were, thereafter, shipped into the State of Illinois. At all times material herein, Hoffman was engaged, pursuant to a contract for services and materials valued in excess of $1 million, in the widening and the resurfacing of Illinois Routes 90 and 91 in Peoria County. C. A. Walker Truck Lines, Inc., is a company with its principal office located in Chillicothe, Illinois. Long Rock Co. is a company with its principal offices located in Princeville, Illinois. Both Walker and Long Rock are engaged in the contract hauling business. The parties stipulated, and we find, that Geo. E. Hoffman & Sons, Inc., C. A. Walker Truck Lines, Inc., and Long Rock Co. are employers engaged in com- merce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties further stipulated, and we find, that In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local # 627, and International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local # 15, are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute Hoffman, a general contractor engaged in widening and repaving state highways, subcontracted the bulk of its work to Walker and Long Rock. Walker was as- signed the hauling of sand and fly ash and both Walker and Long Rock were assigned the hauling of asphalt. At a prejob conference on March 3, 1971, Hoffman agreed with Local 627 to use its own available trucks, driven by members of Local 627, before using any of the subcontractors' trucks, driving by members of Lo- cal 15. When Local 627 learned, on March 17, that Hoffman had sold five of its trucks during the preceding January and February, it sent a telegram to Hoffman stating that only drivers who were members of Local 627 would be permitted to work within the jurisdiction of Local 627. On May 20, Local 627 filed a grievance against Hoffman.' On June 10, 1971, the Teamster The grievance was filed pursuant to article XIX of the Articles of (Cont.) 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Construction Agreement Joint Grievance Committee upheld Local 627's claim for compensation for all hours worked by Local 15 drivers within Local 627's jurisdiction. Hoffman suspended work until June 16 in an attempt to solve the dispute. After Hoffman indicated its un- willingness to pay Local 627 drivers for work per- formed by Local 15 drivers, Local 627 struck Hoffman from June 17 until July 28. Thereafter, Long Rock ceased hauling asphalt because of its unwillingness to request referral of Local 627 drivers to continue the work; and Walker used three of its trucks, driven by Local 15 drivers, on other jobs, thereby reducing the volume of its work for Hoffman. B. The Work in Dispute The work in dispute consists of the hauling of raw materials from several sites within the geographic juris- diction of Local 627 to an asphalt plant and the hauling of asphalt from the plant to a highway-widening project. Long Rock also hauls blend sand to the asphalt plant from a source within the geographical jurisdic- tion of Local 15. Local 627 does not claim that the hauling of blend sand should be reassigned from cur- rent Long Rock employees. C. The Contentions of the Parties The Associated General Contractors of Illinois and C. A. Walker Truck Lines, Inc., contend that the work should be awarded, as originally assigned, to the per- manent employees of Walker and Long Rock currently represented by Local 15 or Local 627, but not to either of the Local Unions or to their members. Locals 627 and 15 contend that the notice of hearing should be quashed because no jurisdictional dispute has been shown' or because all parties herein are contractu- ally bound to resolve the matters in dispute through private methods. Alternatively, Locals 627 and 15 con- tend that in the event the Board awards the work, it should be awarded to employees represented by Local 627. Construction Agreement between The Associated Contractors of Illinois and the Illinois Conference of Teamsters Article XIX provides for the resolution of disputes and grievances involving local unions and employers or complaints by local unions and employers It further provides that there shall be no strike because of jurisdictional disputes Such disputes are to be resolved by representatives of the contractors and local unions directly affected If they cannot agree, the matter is then referred to a joint commit- tee which renders a "final decision " In case of a tie vote by committee members, the agreement provides for arbitration, if a majority of the com- mittee so votes, or for "all economic recourse" by either party As noted in fn 8, infra, we do not rely upon article XIX in reaching our decision in this case. ' In spite of the acquiescence by Local 15 in the demand of Local 627 and its alleged disclaimer of the disputed work, the record in this proceeding amply demonstrates that individual members of Local 15 actively sought the work in dispute D. Applicability of the Statute Section 10(k) of the Act directs the Board to hear and determine disputes out of which 8(b)(4)(D) charges have arisen. Even if a representative of one union dis- claims the disputed work, as did Local 15's secretary- treasurer in the present proceeding, the dispute is, nev- ertheless, properly before the Board for determination under Section 10(k) of the Act if individual members of the union still claim the disputed work, as did mem- bers of Local 15 in the present proceeding.' If all the parties to a dispute have agreed upon a method for the voluntary adjustment of the dispute, the Board is barred from making a 10(k) award. Contrary to the contention of Local 627, the unimplemented agreement of Locals 627 and 15 to arbitrate the dispute, pursuant to the constitution of the International Broth- erhood of Teamsters, does not constitute an agreed- upon method within the meaning of Section 10(k) of the Act.' However, we note that all parties to the present proceeding are signatories to the Articles of Construction Agreement between Associated General Contractors of Illinois and the Illinois Conference of Teamsters and that the agreement is in evidence. Arti- cle VIII of the agreement' is, in our opinion, an agreed- upon method for resolving the subject dispute.' In these circumstances, it is incumbent upon the Board to refuse to determine the dispute in a 10(k) proceeding even if the agreed-upon method has demon- strably failed to achieve its purpose of bringing an end to the jurisdictional dispute.' We therefore reject the contention of Associated General Contractors of Il- linois and C. A. Walker Truck Lines, Inc., that article VIII is inapplicable in the present proceeding because of the failure of Locals 627 and 15 to refer the dispute within 5 days to the Illinois Conference of Teamsters as required by article VIII or because of Local 627's resort to strike action rather than to the procedures provided in article VIII. ' Brodex Co., 157 NLRB 996, 1001; Decora, Inc, 152 NLRB 278, 282 See also NL R B v Plasterers' Local No 79 [Texas State Tile], 404 U S 157, and cases cited therein at fn 31 6 NL R.B v Plasterers' Local No 79, supra 7 Article VIII provides in pertinent part When a project is within the territory of more than one Local Union, the determination of the division of employees for representation pur- poses shall be made by an agreement between the Local Unions and the Employer or Employers involved In the event the Local Unions and the Employer or Employers are unable to reach such an agreement, the issue shall be referred within five (5) days to the Illinois Conference of Teamsters. The Illinois Conference of Teamsters shall meet with the Employer or Employers involved to settle the dispute and their joint decision shall be final and binding on all parties concerned. Because of this finding we deem it unnecessary to decide whether article XIX of the agreement is an agreed-upon method which would bar issuance of a 10(k) award Accoustical Contractors Association of Cleveland, 119 NLRB 1345, 1369-70 TEAMSTERS, LOCAL 627 95 To hold that the Board can determine the dispute because of Local 627's failure to follow the agreed-upon method, viz, to refer the dispute within 5 days, would be to ignore the distinction that the statutory language makes between the mere existence of an "agreed-upon method for the voluntary adjustment" of a jurisdic- tional dispute as opposed to an actual "adjustment" of the dispute." If either exists, the Board has no au- thority to determine the dispute." Moreover, to hold that the Board can determine the dispute because of Local 627's strike action in derogation of the agreed- upon method would be to condone and sanction the breach of the agreement. This would tend to discourage and render worthless the making of such agreements, 10 Section 10(k) of the Act provides that when a charge is filed alleging an unfair labor practice proscribed by Section 8(b)(4)(D ) the Board shall hear and determine the underlying dispute- unless the parties . have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment, such charge shall be dismissed " Manhattan Construction Company, Inc., 96 NLRB 1045, 1047-49, petition for review dismissed 198 F.2d 230 (C A 10), Acoustical Contrac- tors Association of Cleveland, supra, at 1351 contrary to the statutory purpose to encourage the voluntary adjustment of jurisdictional disputes. In effect, such a holding would permit a party to breach such an agreement with impunity because of an ex- pected adverse determination of the dispute, or because of an actual adverse determination, and then have re- course to the Board for another determination which might be favorable to it. In our opinion this would stimulate abuse of the Board's processes.12 As we have found that, as of the time the charge herein was filed, all parties herein had agreed upon methods for the voluntary adjustment of the dispute, we further find that we are without authority to deter- mine this dispute and shall accordingly quash the no- tice of hearing issued in this proceeding. ORDER It is hereby ordered that the notice of hearing issued in this proceeding be, and it hereby is, quashed. '= Wm F Traylor, 97 NLRB 1003, 1006-07, Acoustical Contractors Association of Cleveland, supra at 1353