Steel Paper House, Chemical Drivers & Helpers Local No. 578, International Brotherhood Of Teamsters, Chauffeurs, Warehousemen And Helpers Of America

818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Steel, Paper House, Chemical Drivers & Helpers Local No. 578, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and USCP-Wesco, Inc. and Food Employers Council Inc. and Safeway Stores, Incorporated and Local Union No. 770, United Food and Commercial Workers Interna- tional Union, AFL-CIO and Local Union No. 1167, United Food and Commercial Workers International Union, AFL-CIO. Cases 21-CD- 533 and 21-CD-538 24 June 1986 DECISION AND ORDER QUASHING NOTICE OF HEARING BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON The charges in this Section 10(k) proceeding were filed 8 April 1985 by USCP-Wesco (Wesco) (Case 21-CD-533) and 11 April 1985 by Food Em- ployers Council (Case 21-CD-538) on behalf of Safeway Stores, Inc. (Safeway), alleging that the Respondent, Steel, Paper House, Chemical Drivers & Helpers Local No. 578, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Teamsters), violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing Wesco and Safeway to assign certain work to Wesco's employees it represents rather than to Safeway's employees represented by Local Union Nos. 770, 1442, and 1167, United Food and Com- mercial Workers International Union, AFL-CIO (UFCW). On 2 August 1985 the Acting Regional Director consolidated the cases. The hearing was held 17-20, 23-24, and 30 September 1985 before Hearing Officer Alfredo Magallanes. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board affirms the hearing officer 's rulings, finding them free from prejudicial error. On the entire record,' the Board makes the following find- ings. I. JURISDICTION Wesco, a California corporation, is in the busi- ness of wholesale distribution in areas including, but not limited to, southern California, central Cali- fornia, and Arizona. During the past 12-month period, it purchased and received goods valued in excess of $50,000 directly from suppliers located outside the State of California. i UFCW's motion to augment the record by inclusion of its motion to quash notice of hearing and supporting memorandum is granted Safeway, a Delaware corporation, is in the busi- ness of retail grocery sales in southern California and outside the State of California. During the past 12-month period, it had a gross volume of sales valued in excess of $500,000. During the same period, it sold goods valued in excess of $50,000 to customers located within the State of California. Each of the customers during that same period of time purchased and received goods valued in excess of $50,000 directly from suppliers located outside the State of California. The parties stipulated, and we find, that Wesco and Safeway are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Teamsters and UFCW are labor orga- nizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute Wesco distributes nonfood items to the super- market and drug trade, department stores, discount houses, and home improvement centers. It provides and services general merchandise, such as housewares, stationery, household items, cosmetics, vitamins, and baby items. Wesco's employees, known as service merchandisers, service these items. Wesco's service merchandisers go to the store and check the goods that have been previous- ly delivered by other Wesco employees against the invoice to determine if the order was properly filled. They then separate the goods by category and place the items on the store shelves. They also price, dust, rotate, and face the merchandise. Wesco's service merchandisers then order more merchandise, using a catalog and a Telxon hand computer. In March 1983, Safeway decided to subcontract the work of handling, stocking, and ordering cer- tain general merchandise items to Wesco.2 Wesco currently services 210 Safeway Stores in a full- service program. Wesco's employees are represent- ed by Teamsters. Prior to the 1983 subcontract with Wesco, since approximately 1963-1964, Safeway's own employ- ees, represented by UFCW, had performed the dis- puted work.3 Safeway had its own variety ware- 2 Wesco had been performing the work on a trial basis at a few Safeway Stores since 1981 Wesco serviced cosmetics at a Safeway store on a trial basis in 1981 and in early 1982 Wesco serviced cosmetics in 33 of Safeway's superstores 3 Before 1963-1964, employees of Wesco's predecessors, known as rack jobbers, performed the work in dispute In 1963-1964, Safeway de- cided to open up its own variety warehouse and revert to using in-store clerks to perform the disputed work According to Safeway's merchan- dising manager, Mary Swink , Wesco has been performing work in Continued 280 NLRB No. 95 TEAMSTERS LOCAL 578 (USCP-WESCO) house from which Safeway's employees ordered the merchandise.4 Since 1956, Safeway, through the Food Employ- ers Council, has been a party to a series of collec- tive-bargaining agreements with UFCW covering Safeway's general merchandise clerks. The agree- ments cover the disputed work, and prohibit the subcontracting of bargaining unit work, with limit- ed exceptions. In 1983, when Wesco began handling most of the nonfood items at Safeway Stores, the UFCW locals filed grievances protesting Safeway's subcon- tracting of clerk's work to Wesco. The grievances were submitted to arbitration; Locals 770's and 1167's grievances were heard by Arbitrator Estes and Local 1442's grievance was heard by Arbitra- tor Anderson. In April and August 1984, both arbi- trators ruled in favor of UFCW, finding that the Wesco subcontract violated the agreement between Safeway and UFCW. Upon learning of the arbitration awards against Safeway, Teamsters, by letters dated 11 March 1985 to Safeway's manager of industrial relations and Wesco's president, threatened to picket Wesco and Safeway if Wesco or Safeway assigned the work in dispute to any employees other than Wesco's employees and more particularly to Safeway's employees represented by UFCW. In re- sponse to the Teamsters threats, Wesco and Food Employers Council filed 8(b)(4)(D) charges against the Teamsters. B. Work in Dispute The notice of hearing described the disputed work as "handling, pricing, stocking and ordering non-food and variety items in facilities of Safeway Stores, Incorporated." Safeway and Wesco agreed Safeway Stores under various names (Servateria, US Consumer Prod- ucts, Zellman) since about 1960 When Safeway opened its variety ware- house, it took many of the products in-house and used its own employees to service them Swink testified, however, that in her store Zellman con- tinued to perform some service merchandising Swink testified that many products have vacillated back and forth between warehouse and service merchandisers for 25 years According to Swink, when items were sup- plied from Safeway's warehouse and serviced by Safeway UFCW-repre- sented employees, such items were also supplemented by outside vendors at the larger stores 4 The range of nonfood products carried in each store varied from store to store, but most of the nonfood variety products had been han- dled by Safeway's UFCW-represented employees before Wesco's 1983 subcontract At some stores, employees of outside vendors such as Revlon occasionally ordered their products with the help of Safeway em- ployees, and Safeway employees stocked the merchandise Limited items carved at some stores were occasionally both ordered and stocked by employees of outside vendors For example, sewing notions were ordered and stocked by employees of Berton Con-Agra and Hartz Mountain sup- plied pet items Employees of American Greetings and others have or- dered and stocked greeting cards L'Eggs pantyhose and L'Enn cosmet- ics have been supplied and serviced by a L'Eggs representative, and brooms have been supplied by Trademark Sales Such products appear to be exceptions, and it appears that the disputed work was routinely per- formed by Safeway's employees before Wesco's 1983 subcontract 819 that the notice of hearing properly described the disputed work. At the hearing, UFCW contended, however, that this description was overly broad, but did not propose an alternate description. In their brief, UFCW Locals 770 and 1442 argue that the case does not involve the handling of all non- food and variety items sold by Safeway, because Wesco employees stock only a portion of such items. UFCW claims that any award of work must specify the particular categories of items in dispute. In its brief, Wesco stated that it does not object to limiting the work in dispute to those items that were, are, or in the future will be supplied by Wesco to Safeway. In light of our ultimate disposi- tion of the case, we find it unnecessary to resolve the parties' disagreement concerning the definition of the disputed work. C. Contentions of the Parties UFCW has moved to quash the notice of hear- ing, contending that there is no jurisdictional dis- pute as contemplated in Sections 8(b)(4)(D) and 10(k) of the Act. It claims that the real issue is work preservation and merely involves a question of interpreting its contract with Food Employers Council concerning Safeway's right to subcontract the disputed work to Wesco. UFCW argues that it does not seek to represent any of the Wesco em- ployees presently performing the work and it does not demand that Wesco assign the work to any em- ployees UFCW represents. Similarly, Teamsters does not claim the work if it is done by Safeway employees and demands only that Safeway contin- ue to subcontract the work to Wesco, whose em- ployees Teamsters represents. UFCW claims that once it is determined whether Safeway was entitled to subcontract the work to Wesco, the dispute dis- appears. UFCW maintains that but for Safeway's violation of the contract Teamsters would not be in any position to claim the work, and that neither Wesco nor Teamsters has any right to demand that Safeway continue to violate its agreement with UFCW by continuing the Wesco subcontract. UFCW thus contends that the sole issue is a matter of contract interpretation and that applying jurisdictional criteria to a subcontracting dispute would effectively undo any contractual limitations on subcontracting, making employers free to disre- gard contractual subcontracting limitations when- ever they prefer to do so for reasons such as econ- omy, efficiency, or relative skills. UFCW claims that Safeway created this dispute by subcontracting the work to Wesco in violation of its UFCW con- tract and has the power to resolve it, and is not the "innocent" employer with which Congress was concerned. UFCW argues, relying on Printing 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pressmen Local 7 (Metropolitan Printing), 209 NLRB 320 (1974), that the enforcement of collec- tive-bargaining agreements and issues of contract interpretation should be left to arbitration, not to the Board. UFCW maintains that the arbitrators have already ruled in favor of UFCW in this case and the Board should not now subject the arbitra- tors' interpretation of the collective-bargaining agreement to its review. UFCW Local 1167 alternatively contends that in the event the Board does not quash the notice of hearing, the Board should award the work to UFCW-represented employees on the basis of col- lective-bargaining agreements, employer past prac- tice, and arbitration awards. Local 1167 argues that Safeway employees are no less efficient and skillful than Wesco's employees. Food Employers Council, Safeway, and Wesco contend that there is a bona fide jurisdictional dis- pute, which is properly before the Board for reso- lution, and that UFCW's work preservation or con- tractual argument is without merit. They claim that the Teamsters' threat to picket Wesco and Safeway with an object of forcing Safeway and Wesco to assign the disputed work to Wesco's employees rather than Safeway's employees violates Section 8(b)(4)(D) of the Act. They further argue that there is no agreed-upon method for the voluntary resolution of the dispute. They claim that the fact that there may be an arguable contract violation between Safeway and UFCW is not controlling be- cause Wesco and Teamsters are not parties to the UFCW agreement, and the Board cannot base its decision on arbitration awards to which all parties are not bound. They also claim that UFCW does not have a valid work preservation argument be- cause no UFCW members have been terminated, and because Teamsters-represented employees have historically performed the disputed work in Safeway Stores. Wesco also argues that Wesco's Teamsters-represented employees would suffer job displacement if the work were assigned to UFCW- represented employees of Safeway . Safeway, Food Employers Council, and Wesco maintain that this dispute was not caused by any action of either Em- ployer, but rather it was UFCW's arbitration that forced the Teamsters to act in support of its claim to the work. They argue that Metropolitan Printing, supra, is distinguishable from the instant case on the ground that in Metropolitan Printing there were no competing claims to the work in the same loca- tion. Wesco, Safeway, Teamsters , and Food Employ- ers Council also contend that all the factors the Board traditionally considers in making jurisdic- tional awards-area and industry practice, relative skills, economy and efficiency of operations, certifi- cations and collective-bargaining agreements, and employer practice and preference-are present and favor an award of the disputed work to Wesco's employees represented by Teamsters. D. Applicability of the Statute Before the Board may proceed to a determina- tion of dispute under Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. We are not satisfied that any such violation has oc- curred in this case. We conclude that the evidence fails to establish a traditional jurisdictional dispute between two groups of employees cognizable under Section 10(k) of the Act. The real dispute here is between UFCW and Safeway, rather than between employ- ees represented by UFCW and Teamsters, and ba- sically involves nothing more than UFCW's at- tempt to enforce its contractual work preservation provisions in the form of its contractual limitations on subcontracting to protect its bargaining unit from work erosion. Thus, the case does not present a jurisdictional dispute within the meaning of Sec- tion 10(k) of the Act. The essence of this dispute is Safeway's right under its collective-bargaining agreement with UFCW to transfer work out of the unit and sub- contract it to Wesco. The dispute concerns Safeway's alleged breach of its contract with UFCW, and resolution of this contract issue also resolves which group of employees will do the work. If the subcontract to Wesco is proper, Wesco is entitled to do the work and to assign it to its Teamsters-represented employees. Conversely, if Safeway had no right to transfer the work out of the UFCW bargaining unit to Wesco, then Safeway's UFCW-represented employees are enti- tled to perform the work. Teamsters does not claim the work unless Wesco legitimately has the subcon- tract, and UFCW does not claim the work unless Safeway is required by its contract with UFCW to keep the work for its own employees. Although this dispute may literally fall within the terms of Sections 8(b)(4)(D) and 10(k) of the Act because there are two competing claims to the work and one of the parties threatened to picket to prevent a change in work assignment, the Board should look to the real nature and origin of the dis- pute in deciding whether it is actually jurisdiction- al. Section 8(b)(4)(D) was not designed to author- ize the Board to arbitrate disputes between an em- ployer and a union, particularly regarding the union's "attempt to retrieve the jobs" of employees the employer chose to supplant by reallocating TEAMSTERS LOCAL 578 (USCP-WESCO) their work to others. Longshoremen IL WU Local 26 (American Plant Protection), 210 NLRB 574, 576 (1984). If the Board applies the 10(k) criteria to disputes such as this one, the Board would become the arbi- ter of almost every subcontracting dispute. Finding a jurisdictional dispute every time an employer al- legedly breaches a no-subcontracting clause would not promote the private settlement of such disputes through the collective-bargaining process. To hold that this dispute is a jurisdictional dispute to be de- cided by the Board would not allow the UFCW employees the benefit of their negotiated work preservation clause. The clause would be unen- forceable, and Safeway would be permitted to ignore its collective-bargaining obligation.5 Fur- thermore, Teamsters and Wesco would be reward- ed for their willingness to use economic force, po- tentially to obtain work to which they may not be entitled because of the no-subcontracting clause in the Safeway-UFCW agreement. Genuine work preservation clauses such as that involved in this case should be respected and protected. Compare Milwaukee Spring Division, 268 NLRB 601 (1984) (Milwaukee Spring II), affd. sub nom. Auto Workers Local 547 v. NLRB, 765 F.2d 175 (D.C. Cir. 1985). It is a legitimate interest of employees to attempt to preserve their work by negotiating contractual work preservation provisions. Such provisions help maintain industrial peace, and the Board should not assert its jurisdiction in a manner which ensures that legitimate work preservation provisions would become unenforceable. In Metropolitan Printing, supra, a Board majority quashed a notice of hearing under facts very simi- lar to those in the instant case. That case involved a subcontracting dispute between the Typographers and Field Enterprises. Field's collective-bargaining agreement with the Typographers gave the Typog- raphers jurisdiction over all composing room work and prohibited Field from subcontracting such work. Metropolitan had a contract with the Press- men, which gave the Pressmen exclusive jurisdic- tion over composition work. Field contracted with Metropolitan for Metropolitan to print a publica- tion to be inserted into Field's daily newspapers. The Typographers filed a grievance against Field, demanding the composition work for its members employed by Field, but Field refused to arbitrate. After learning of the Typographer's grievance, the Pressmen threatened to picket Field and Metropoli- tan if the work were taken from Metropolitan. 8 A Board award of the work to Teamsters -represented employees would take precedence over the arbitral awards in favor of UFCW-repre- sented employees See Carey v Westinghouse Electric Corp, 375 U S 261 (1964) 821 Field and Metropolitan filed 8(b)(4)(D) charges against the Pressmen. The Typographers filed a motion to quash the notice of hearing. The Board majority granted the motion, finding the evidence insufficient to estab- lish a traditional jurisdictional dispute between two groups of employees. The Board stated (209 NLRB at 321) that "the dispute turns upon the transfer of alleged unit work from one Employer to another, rather than upon any assignment of work from one group of employees to another by either Employ- er." The Board (209 NLRB at 322) went on to state that "the disagreement here stems from a claim to unit work and the allegedly improper transfer of it out of the unit." The fact that a work assignment was involved was incidental to the real dispute over whether the employer had violated its agreement with the union. The Board noted at footnote 6 that the significant fact was that "the employer's action went beyond merely assigning work to one group of employees rather than an- other and that the union's concern is grounded upon the alleged breach of contract. That another group of employees thereby ends up with the work does not automatically turn a basic contract dispute into a jurisdictional one." As in Metropolitan Printing, the dispute in the in- stant case turns on the alleged improper transfer of unit work from one employer (Safeway) to another (Wesco), and the fact that a work assignment was involved was incidental to the real dispute over Safeway's alleged violation of its contract with UFCW. Thus, the dispute in this case, as in Metro- politan Printing, is not a jurisdictional dispute within the meaning of Section 10(k). 6 Here, more- over, the facts are even stronger for finding the dispute a work preservation dispute based on an al- leged contract violation. The instant case is a true work preservation case, as UFCW-represented em- 6 Safeway and Wesco attempt to distinguish Metropolitan Printing on the ground that , unlike in the instant case, in Metropolitan Printing sepa- rate locations were involved and there were no competing claims to the work at the same location We do not find this distinction persuasive. The dispute in the instant case revolves around Safeway's breach of a subcontracting clause Such a clause should be enforceable regardless of where the subcontracted work is to be performed. Merely because sub- contracted work is to be performed at the same location as bargaining unit work does not make a basic subcontracting dispute jurisdictional Although in Redstone Workers Assn (Starks Construction), 241 NLRB 945 (1979), the Board distinguished Metropolitan Printing on the basis of separate locations, we find such distinction was unnecessary In that case the union did not have a legitimate contractual claim because the work was not work traditionally done by bargaining unit employees. As bar- gaining unit members had never performed the disputed work, the Board found the union's motive in claiming the work in dispute was therefore not work preservation, but work acquisition Here, by contrast, UFCW- represented employees had been performing the disputed work for ap- proximately 20 years before Safeway subcontracted the work to Wesco Thus, the nature of the dispute is work preservation and, as the arbitra- tors found, UFCW had a legitimate contractual claim against Safeway 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees had been performing the disputed work for approximately 20 years when Safeway's violation of the-,,parties' subcontracting clause caused the work to be taken away from Safeway's own UFCW-represented employees and given to em- ployees of another employer. No new work is in- volved here. This case merely involves the preser- vation within the unit of long-existing work cov- ered by the agreement between Safeway and UFCW.7 In finding that this case involves an attempt by UFCW to preserve unit work, we note that Food Employers Council, Safeway, and Wesco assert that the UFCW does not have a valid work preser- vation argument because no Safeway employees have been terminated as a result of the Wesco sub- contract. They contend that the work preservation defense to a jurisdictional dispute claim, which was found valid in Longshoremen IL WU Local 8 (Wa- terway Terminals), 185 NLRB 186 (1970), vacated and remanded 467 F.2d 1011 (9th Cir. 1972), on remand 203 NLRB 861 (1973),8 and applied in Metropolitan Printing, supra, 209 NLRB at 322 fn. 6, has been limited to situations where employees have lost jobs as a result of a work reassignment. In support of their contention, they rely on Team- sters Local 680 (Kraft, Inc.), 265 NLRB 915 (1982); Ladies Garment Workers (Tahari, Ltd.), 272 NLRB 639 (1984); and Iron Workers Local 468 (AMPAT/Midwest Corp.), 266 NLRB 963 (1983).9 7 Cf Lumber Workers Local 2592 (Louisiana-Pacific Corp), 268 NLRB 126 (1983), in which a Board majority found no valid work preservation objective on the union's part where its objective was not to avoid the loss of work, but to gain work it had not previously performed Accord- ingly, the Board refused to quash the notice of hearing 8 In Waterway Terminals, supra, an employer terminated a subcontract and assigned the work previously done by the subcontractor to its own employees The union representing the subcontractor 's employees picket- ed the employer for the purpose of forcing the employer to rehire its members to perform the work they previously had done In its original decision, the Board found that the union's objective was to preserve the employment of those who had been performing the work On remand from the Ninth Circuit, the Board applied the court's conclusions as the law of the case and determined the merits of the case under Sec 10(k) In subsequent cases, however, the Board has continued to apply the ration- ale of the original Waterway Terminals decision E g , Metropolitan Print- ing, supra, 209 NLRB at 322 fn 6, Maritime Union (Puerto Rico Marine Management), 227 NLRB 1081, 1083 fn 3 (1977). 8 In Kraft, Inc, supra, an employer transferred work performed by an employee represented by one local, over its protest, to an employee rep- resented by another local, based on the second local's claim that its con- tract covered the work and on its threat to arbitrate Noting that no em- ployees were laid off as a result of the reassignment , the Board found a jurisdictional dispute in light of the second local's pressure and arbitra- tion threat In Tahari, Ltd, supra, the ILGWU ceased performing work for Tahari and began picketing in an attempt to require Tahari to sign a jobber's agreement with the ILGWU, requiring Tahari to send work only to contractors whose employees were represented by the ILGWU At the time the picketing commenced, Tahari sent work to three types of contractors. contractors whose employees were represented by the ILGWU, contractors whose employees were represented by the Clothing and Textile Workers Union (ACTWU), and contractors whose employ- ees were unrepresented Tahan shortly thereafter signed a jobbers' con- tract with the ACTWU, which allowed Tahari to continue to send work to contractors with ILGWU-represented employees This exception was Although it is correct that each of the three cited cases distinguish Waterway Terminals, in part, on the basis that no employees had lost jobs, they also rely on the finding that the employer had not instigated the dispute. Based on the Supreme Court's construction of Sections 8(b)(4)(D) and 10(k) in NLRB v. Electrical Workers IBEW Local 1212, 364 U.S. 573 (1961), the Board in Teamsters Local 107 (Safeway Stores), 134 NLRB 1320 (1961), quashing a notice of hearing, held that although Sections 8(b)(4)(D) and 10(k) might be literally ap- plicable to the facts of that case, they were not in- tended to cover situations where the dispute was essentially between the union and the employer rather than between rival groups of employees and the employer created the dispute by its unilateral action, as opposed to being willing to assign the work to either group of employees to end the dis- pute. This analysis has been followed by the Board in such cases as Waterway Terminals, supra; Long- shoremen ILWU Local 26 (American Plant Protec- tion), 210 NLRB 574 (1974); and Puerto Rico Marine Management, supra. Further, Metropolitan Printing, 209 NLRB at 322 fn. 6, rejected the argu- ment that Safeway Stores and Waterway Terminals were dependent on the discharge of the employees involved. Instead, Metropolitan Printing, 209 NLRB at 322 fn. 6, quoted above, narrowly construed the Safeway Stores and Waterway Terminals line of cases as turning on the nature of the dispute-the union's concern for the alleged breach of con- tract-rather than a loss of jobs. Safeway and UFCW agreed to submit any dis- putes about the interpretation and application of their contract's subcontracting clause to arbitration. They did so and two arbitrators ruled in favor of UFCW, finding that Safeway breached its contract with UFCW by subcontracting the work to Wesco. It is fundamental that parties to a collective-bar- gaining agreement are bound by the terms of their contract. United Technologies Corp., 268 NLRB 557, 559 (1984). Safeway should not now be per- mitted to subvert this principle by having the subsequently rescinded when, upon being informed of this exception, the ILGWU failed to cease picketing In finding a jurisdictional dispute, the Board found that the ILGWU instigated the dispute by picketing in sup- port of a jobbers' agreement It further found that although the object of the picketing may have changed after the picketing began, there was no evidence that, at any point , the ILGWU had as its sole objective the re- employment of its members to work they had previously performed, par- ticularly where the ILGWU failed to respond to the notice of the excep- tion provided by the ACTWU agreement by sending its members back to work Finally, in AMPAT/Midwest Corp, supra, the Board found a juris- dictional dispute in circumstances where the Glaziers, a party to an agreement with an employers group of which AMPAT/Midwest was a member, sought to obtain work that AMPAT/Midwest had assigned, as it had done in the past, to employees represented by the Shopmen TEAMSTERS LOCAL 578 (USCP-WESCO) Board decide the subcontracting issue in the inap- propriate context of a 10(k) proceeding. Although the Teamsters and Wesco were not parties to the arbitration, this does not constitute a flaw in the arbitral process. The issue to be arbi- trated was whether the Safeway-UFCW contract restricted Safeway's right to subcontract. There was only one contract to be interpreted, that be- tween Safeway and UFCW. Wesco and the Team- sters have no standing to participate in such arbi- tration, and their presence at arbitration could be of no assistance in deciding the Safeway-UFCW contract dispute. Further, with respect to the force of the arbitration award itself, the Supreme Court in Carey v. Westinghouse Electric Corp., 375 U.S. 261 (1964), stated that the Board had discretion to respect an arbitration award and decline to exercise its authority over alleged unfair labor practices if to do so will serve the fundamental purposes of the Act. We believe that under the circumstances of this case in which the fundamental dispute involves a matter of contract interpretation, arbitration be- tween UFCW and Safeway is the best forum for resolving the dispute. Safeway here is not the "innocent" employer that Section 10(k) was intended to protect. Safeway created this dispute by breaching its col- lective-bargaining agreement with UFCW and could have ended it by canceling its subcontract with Wesco. Safeway voluntarily entered into an 823 agreement with UFCW, which included restric- tions on subcontracting unit work. Shortly thereaf- ter it nevertheless decided to subcontract unit work to Wesco. Safeway should not now be allowed to use the Board's 10(k) processes to avoid its con- tractual obligations.' 0 Wesco and Safeway brought this 10(k) proceed- ing not to settle a dispute between UFCW and Teamsters, but rather to procure a Board award confirming Wesco's right to perform the work while releasing Safeway from its contractual obli- gations to UFCW. We believe that such a purpose is not legitimately within the scope of a 10(k) pro- ceeding, and, accordingly, we grant UFCW's motion to quash the notice of hearing to enable UFCW to pursue its contractual remedies against Safeway. ORDER It is ordered that the notice of hearing issued in this case is quashed. io Cf. Longshoremen ILWU Local 62-B Y. NLRB, 781 F 2d 919, 925 (D C Cir 1986), in which the court refused to enforce the Board's 10(k) decision reported at 261 NLRB 1076 (1982), because the "dispute was en- tirely of the employer's making, and the employer was not neutral in the dispute." The court held that where the employer created the dispute, Secs. 8(bX4XD) and 10(k) do not apply While we do not agree that Secs 8(bX4)(D) and 10(k) can never apply when an employer creates a dispute, we believe the court was correct in observing that the Board must consider the origins of the dispute in determining whether a genuine jurisdictional dispute exists