International Union of Operating Engineers, Local No. 714 v. Sullivan Transfer, Inc.
| Decision Date | 13 July 1981 |
| Docket Number | No. 80-1740,80-1740 |
| Citation | 650 F.2d 669 |
| Parties | 107 L.R.R.M. (BNA) 3278, 92 Lab.Cas. P 13,035 INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 714, Plaintiff-Appellant, v. SULLIVAN TRANSFER, INC., et al., Defendants-Appellees. . Unit A |
| Court | U.S. Court of Appeals — Fifth Circuit |
Marvin Menaker, Dallas, Tex., for plaintiff-appellant.
Clark, West, Keller & Butler, David M. Ellis, Dallas, Tex., for Sullivan Transfer.
Mullinax, Wells, Baab, Cloutman & Chapman, L. N. D. Wells, Jr., G. William Baab, Dallas, Tex., for International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America.
James L. Hicks, Jr., Dallas, Tex., for Teamsters Local 745.
Appeal from the United States District Court for the Northern District of Texas.
Before BROWN, GOLDBERG and AINSWORTH, Circuit Judges.
The International Union of Operating Engineers, Local 714, appeals from the district court order dismissing its suit against Sullivan Transfer, Inc., the International Brotherhood of Teamsters and a Teamsters local union. In a five-count complaint, the Operating Engineers alleged that Sullivan had assigned certain forklift work to Teamsters members which should have been assigned to members of the Operating Engineers. The Operating Engineers sought damages and injunctive relief against both the employer and the competing union. The district court dismissed the suit, holding that a determination of the jurisdictional dispute by the National Labor Relations Board under section 10(k) of the labor act, 29 U.S.C. § 160(k), was "entitled to deference and recognition as res judicata " We hold that section 10(k) determinations are not entitled to either res judicata or collateral estoppel effect, and therefore reverse.
Sullivan Transfer is engaged in transporting, setting up and dismantling heavy equipment and machinery at new construction sites and at the sites of the rehabilitation or refurbishment of existing facilities. The work at existing facilities, referred to as "old construction," encompasses 80 to 90 per cent of Sullivan's work. Sullivan entered into collective bargaining agreements with both the Operating Engineers and the Teamsters from 1967 to the time of this suit. Apparently the agreements with each union designate forklift work as within the jurisdiction of that union. 1 The Employer assigned all of the forklift work on new construction to the Operating Engineers, 2 but assigned most of the work on old construction to the Teamsters. 3
This arrangement was not satisfactory to the Operating Engineers. In April 1977 Sullivan filed an unfair labor practice charge against the Operating Engineers, contending that the union "has threatened, coerced or restrained (Sullivan) with an object of forcing or requiring (Sullivan) to assign forklift work to employees in Operating Engineers Local 714 rather than to employees in Teamsters Local 745 " 4 When an employer files an unfair labor practice charge alleging a jurisdictional dispute between two unions, the Board conducts a special proceeding authorized by section 10(k) of the act, 29 U.S.C. § 160(k). 5 The first step in a section 10(k) proceeding involves a determination of whether the parties have either settled the dispute or agreed upon a method to resolve the dispute. On the day scheduled for the section 10(k) hearing arising out of Sullivan's charges against the Operating Engineers, the parties executed what has become known as the tripartite agreement in which they agreed to refer the dispute over work in existing buildings to a jurisdictional committee of the International Teamsters and Operating Engineers unions and to be bound by the decision of the committee. 6 The Board, through its Regional Director, deferred the section 10(k) proceeding pending the decision of the unions' jurisdictional committee and, on October 12, 1978, dismissed the charges against the Operating Engineers since "(t)he Internationals awarded the disputed work to the charged party (the Operating Engineers)." 7
Sullivan and the Teamsters disagreed with the Regional Director's ruling, however. After the parties signed the tripartite agreement, the jurisdictional committee met in August 1977, and "unanimously agreed that (the parties) are obligated to abide by the 1969 Jurisdictional agreement between the (Operating Engineers) and the (Teamsters) on all new construction work." The 1969 agreement had given forklift work at construction sites to the Operating Engineers. The reference to "new construction work" led Sullivan and the Teamsters local to contend that the committee had not resolved the dispute over work in existing buildings. 8 In response to this contention, the Operating Engineers presented a letter agreement, which has come to be known as the Owens agreement, in which representatives of both Internationals agreed "that Sullivan Transfer Company is obligated to assign all fork lift driver work concerning the renovation or remodeling of existing construction to (the Operating Engineers)." 9 Sullivan and the Teamsters local refused to recognize or abide by the Owens agreement, however.
The jurisdictional dispute thus continued. On September 5, 1978, the Operating Engineers filed this suit in district court against Sullivan seeking damages and injunctive relief. 10 On April 20, 1979, Sullivan filed another unfair labor practice charge, this time naming the Teamsters local as respondent and alleging that the Teamsters had violated section 8(b)(4)(D). A section 10(k) hearing was held before a hearing officer on May 23 and June 4, 1979. After the section 10(k) hearing was held, but six months before the N.L.R.B. made its decision, the Operating Engineers amended its complaint to add the Teamsters local and International as respondents. On February 4, 1980, the Board issued a section 10(k) decision which, rather than awarding the work to one union or the other, determined that the work should be assigned to both unions in accordance with the employer's past practice. The district court then dismissed the suit against Sullivan and the Teamsters on June 16, 1980, holding that the Board's section 10(k) determination was "entitled to deference and recognition as res judicata " This appeal ensued.
Prior to 1966 most courts held that the principles of res judicata did not ordinarily apply to determinations of an administrative agency even if that agency acted in a judicial capacity. See, e. g., Bridges v. United States, 346 U.S. 209, 234, 73 S.Ct. 1055, 1068, 97 L.Ed. 1557 (1953) (Reed, J., dissenting); Pearson v. Williams, 202 U.S. 281, 284-85, 26 S.Ct. 608, 610, 50 L.Ed. 281 (1906); Churchill Tabernacle v. F. C. C., 160 F.2d 244, 246 (D.C.Cir.1947). Although there was considerable erosion in the rule denying res judicata effect to administrative decisions, 11 the rule was not finally settled until the Supreme Court decided United States v. Utah Construction and Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966). In that case, the Court stated that "(w)hen an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate," res judicata should apply. 384 U.S. at 422, 86 S.Ct. at 1560. Utah Construction established a two-part test to determine whether res judicata effect should be given to an administrative determination. First, the agency proceeding must be examined to determine whether the agency was "acting in a judicial capacity" and whether the parties had "an adequate opportunity to litigate" the issues before the agency. Second, the general rules of res judicata must be applied to the case. Not all administrative adjudications, and not all judicial determinations, are entitled to res judicata effect. For the principles of res judicata to apply, administrative determinations, like court judgments, must be valid, final and on the merits. 12
To determine whether a section 10(k) proceeding meets the criteria for res judicata, it is necessary to examine the nature of the proceeding. The purpose of section 10(k) is to attempt to achieve a peaceful expedited settlement of a jurisdictional dispute without going through the entire unfair labor practice procedure and without subjecting the employer to the cross fire of economic warfare between competing unions. 13 When the Board receives a section 8(b) (4)(D) unfair labor practice charge, and the Regional Director determines that the charge might have merit and that the parties have neither settled nor agreed to a method of settling the dispute, the Regional Director notifies the parties to the dispute that a hearing will be held before a hearing officer. 14 The hearing procedure is set out in section 101.34 of the N.L.R.B. Rules and Regulations, 29 C.F.R. § 101.34 (1980):
If the parties have to adjusted the dispute or agreed upon methods of voluntary adjustment, a hearing, usually open to the public, is held before a hearing officer. The hearing is nonadversary in character, and the primary interest of the hearing officer is to insure that the record contains as full a statement of the pertinent facts as may be necessary for a determination of the issues by the Board. All parties are afforded full opportunity to present their respective positions and to produce evidence in support of their contentions. The parties are permitted to argue orally on the record before the hearing officer. At the close of the hearing, the case is transmitted to the Board for decision. The hearing officer prepares an analysis of the issues and the evidence, but makes no recommendations in regard to resolution of the dispute.
The parties are given seven days after the close of the hearing to file briefs with the Board. The Board then reviews the...
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