INTERNATIONAL ASS'N, ETC., LOC. 395 v. LAKE CTY., IND. COUN., ETC.

• Citation: 347 F. Supp. 1377
• Decision Date: 23 August 1972
• Docket Number: Civ. No. 71 H 242.
• Parties: INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRONWORKERS, LOCAL NO. 395, AFL-CIO v. LAKE COUNTY, INDIANA COUNCIL OF the UNITED BROTHERHOOD OF CARPENTERS, et al.
• Court: United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana

347 F. Supp. 1377

INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRONWORKERS, LOCAL NO. 395, AFL-CIO v. LAKE COUNTY, INDIANA COUNCIL OF the UNITED BROTHERHOOD OF CARPENTERS, et al.

Civ. No. 71 H 242.

United States District Court, N. D. Indiana, Hammond Division.

August 23, 1972.

Charles Orlove, Chicago, Ill., for plaintiff.

Herbert S. Lasser, Gary, Ind., Kalvin M. Grove, Chicago, Ill., for defendants.

MEMORANDUM

BEAMER, District Judge.

Plaintiff, International Association of Bridge, Structural and Ornamental Iron Workers, Local No. 395, AFL-CIO (Iron Workers), initiated this action under § 301(a) of the National Labor Relations Act, 29 U.S.C. § 185(a) and § 9 of the Federal Arbitration Act, 9 U.S.C. § 9. The action, based upon breach of contract, requested enforcement of an arbitrator's award concerning a work assignment dispute between plaintiff and defendants Lake County Indiana District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Carpenters) and Local Union 41, Laborers International Union of North America, AFL-CIO (Laborers). All three local unions, as well as the international unions with which they are affiliated, are members of the Building and Construction Trades Department. AFL-CIO (Department). The Department's constitution provides that all jurisdictional disputes among members shall be settled according to the plan adopted by the Department.¹ The Department has established such a plan, which provides for a National Joint Board for the Settlement of Jurisdictional Disputes in the Building and Construction Industry (Joint Board). The plan further provides that the Joint Board's decision is binding upon the parties unless appealed.²

Defendant Telander Bros. Contractors, Inc. (Telander) is an Illinois corporation engaged in residential, industrial and commercial construction. On April 16, 1971, a dispute arose among the Iron Workers, Carpenters and Laborers as to Telander's assignment of work at a housing project. The matter was referred to the Joint Board on April 21, 1971 and on June 18, 1971 the Joint Board awarded the work to the Iron Workers. The complaint alleged that the Carpenters and the Laborers refused to comply with the Joint Board decision. The Iron Workers further alleged that Telander had entered into a contract with Iron Workers in which Telander agreed to accept as binding any decision or award of the Joint Board as to jurisdictional disputes. The complaint alleged that Telander invoked the Joint Board procedures but later refused to recognize the Joint Board's decision. The Iron Workers requested temporary and permanent injunctive relief, lost wages, punitive damages and costs and expenses incurred during actions brought by Telander in this Court and before the National Labor Relations Board.

Telander, following its award of the work to the Carpenters and Laborers, filed charges against plaintiff with the NLRB on April 26, 1971 and May 3, 1971, alleging a violation of § 8(b)(4) (i), (ii) (D) of the National Labor Relations Act. Subsequently, the Regional Director of the NLRB petitioned for and was granted by this Court a temporary injunction prohibiting plaintiff from engaging in coercive action to force Telander to change its work assignment pending NLRB action on the filed charges. The Regional Director dismissed the charges on July 13, 1971, finding that a voluntary method of adjustment existed with which the charged party had complied, and thus no hearing under § 10(k)³ of the NLRA was necessary. However, this determination was reversed on appeal to the General Counsel of the NLRB, and a § 10(k) hearing was held by the Board in September, October and November of 1971. On April 5, 1972 the Board issued its Decision and Determination of Dispute, 196 NLRB No. 19, awarding the work to Laborers and Carpenters. The charges against plaintiff were dismissed by the Regional Director on April 21, 1972, since plaintiff had notified the Director that it would comply with the Board's decision.

Telander argues that the decision of the NLRB is a final order which disposes of all issues in this case, and that the only avenue of review left open to plaintiff is a refusal to comply with that order, after which the NLRB will issue a complaint and the determination will be reviewable by the courts under the enforcement or review proceedings provided in § 10(e) and § 10(f). In opposition to Telander's motion, the plaintiff Iron Workers contends that it did not agree to comply with the NLRB determination, but merely informed the NLRB that it would refrain from forcing Telander to assign work by means proscribed in § 8(b)(4)(D). Plaintiff further contends that the Board order speaks only to the statutory right of an allegedly impartial employer to resolution of a dispute between contesting unions, and that the Board determination has not resolved issues of breach of contract which are solely for judicial determination. Thus the issue posed by the motion to dismiss is whether the NLRB determination of the work assignment dispute in § 10(k) proceedings precludes a later determination by this Court of damages for breach of contract.

Plaintiff here does not press the moot claim as to its right to an injunction enforcing the arbitration award by awarding the work. Rather, Iron Workers claim that regardless of the NLRB determination, they are still entitled to contract damages for breach by Telander of its alleged agreement to arbitrate in the first instance, because Telander failed to follow the Joint Board's award. Iron Workers are seeking lost wages and damages for Telander's action in filing charges before the NLRB, thus precipitating a new determination of the dispute, rather than accepting the award of the Joint Board.⁴ Telander, of course, alleges numerous deficiencies in both the alleged contract and in the procedures of the Joint Board and does not admit that it was bound by the award. However, since upon a motion to dismiss the facts must be examined in the light most favorable to the plaintiff, these allegations need not be examined.

The precise issue here was posed to the court in Dock Loaders & Unloaders, etc., Local Union No. 854 v. W. L. Richeson & Sons, Inc., 280 F.Supp. 402 (E.D. La.1968). There, the dispute was between the plaintiff and the Teamsters. When the defendant rejected the plaintiff's claim to the disputed work, the plaintiff filed a grievance pursuant to its collective bargaining agreement with the defendant, and the grievance committee awarded the work to the plaintiff Dock Loaders. Plaintiffs later filed an action in the district court under § 301 of the Labor-Management Relations Act of 1947, alleging that the defendant had breached its collective bargaining agreement by assigning the work to the Teamsters. There, as here, the plaintiff sought damages and a preliminary injunction. Thereafter, the employer filed an unfair labor practice charge with the NLRB, a § 10(k) hearing was held, and the Board awarded the work to the Teamsters. There, as here, the plaintiffs no longer asserted their demand for an injunction ordering defendant to employ their members in the disputed jobs. Even if the issue were not moot here because the work is completed, there would be no right to an injunction because the NLRB award is entitled to precedence over an earlier award. See New Orleans Typographical Union No. 17 v. N.L.R.B., 368 F.2d 755, 767 (5th Cir. 1966).

The court in Dock Loaders framed the issue as whether the award of the NLRB required the court in an action under § 301 to deny an award of damages accruing prior to the NLRB decision to a union whose members were not assigned disputed jobs, despite a grievance committee award requiring such assignment. In holding that no damages could be awarded, the court quoted Carey v. Westinghouse Electric Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964):

Should the Board disagree with the arbiter, by ruling, for example, that the employees involved in the controversy are members of one bargaining unit or another, the Board's ruling would, of course, take precedence; and if the employer's actions had been in accord with that ruling, it would not be liable for damages under § 301. 375 U.S. at 272, 84 S.Ct. at 409.

This language was dicta, since the issue before Carey was only whether an agreement to arbitrate could be compelled before the Board had acted. In Carey, the IUE and Westinghouse had entered into a collective bargaining agreement which provided that unresolved disputes, including matters of contract interpretation and application, were subject to arbitration. Westinghouse refused to arbitrate a work dispute between IUE and the Federation union. The Court enforced the arbitration agreement on the ground that the controversy might be ended by arbitration. The Court noted that if the controversy were considered to be a work assignment dispute, the Act does not cover all stages of it and does not provide for any method for resolving the dispute absent a strike. A strike or threat of strike gives the Board authority under § 10(k) to resolve the dispute. Thus, the Court refused to assume that the regulatory scheme forced the controversy into the strike stage before a remedy was available. 375 U.S. at 263-264, 84 S.Ct. 401.

The Court emphasized that a suit under § 301 was proper even if a remedy before the Board was available. Normally, when the case reaches the Board and arbitration has already taken place, the Board will defer to the award; however, if the Board disagrees with the arbitrator, the Board award takes precedence. The Court, however, was not directly faced with a conflicting Board decision because none had taken place. The Court in Dock Loaders, nevertheless, noted that:

In the absence of authority to the contrary, or of persuasive reasons for reaching the opposite result, the language of the Supreme Court commands respect. 280 F.Supp. at 405.

The...