International Union of Operating Engineers, Local 150 v. N.L.R.B.

• Decision Date: 29 January 1985
• Docket Number: 84-1758,Nos. 84-1496,s. 84-1496
• Citation: 755 F.2d 78
• Parties: 118 L.R.R.M. (BNA) 2909, 103 Lab.Cas. P 11,682 INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 150, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 150, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 78

755 F.2d 78

118 L.R.R.M. (BNA) 2909, 103 Lab.Cas. P 11,682

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 150, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 150, Respondent.

Nos. 84-1496, 84-1758.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 6, 1984.

Decided Jan. 29, 1985.

Roger N. Gold, Gold & Polansky, Chicago, Ill., for petitioner.

Elinor Stillman, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel N.L.R.B., Washington, D.C., for respondent.

Before CUMMINGS, Chief Judge and BAUER and WOOD, Circuit Judges.

CUMMINGS, Chief Judge.

This appeal asks us to review an order by the National Labor Relations Board (the "NLRB" or the "Board") against the International Union of Operating Engineers, Local 150 ("Local 150") reported at 268 NLRB No. 200. We enforce the order.

I

D.J. Johnson Company (the "Company") is a Delaware corporation engaged in the business of brick masonry as a construction subcontractor in DuPage County, Illinois. On August 1, 1981, the Company began masonry work on an apartment building for the elderly in Mount Prospect in adjacent Cook County, Illinois. One of the unions working on the jobsite was Construction and General Laborers' Local 118 ("Local 118") to whom the Company assigned its only forklift operation.

William Ruckers, Business Representative of Operating Engineers' Local 150, complained to the Company about this assignment sometime in August 1981. On August 27, members of Local 150 began to picket the jobsite. Local 118 retaliated by threatening to picket the jobsite if the Company replaced the laborer on the forklift with an operating engineer. Thus the Company was presented with a classical work jurisdiction dispute.

Understanding the issue in dispute requires understanding the various sources of the obligations of the several parties vis-a-vis jurisdictional disputes. The Company had no collective bargaining agreement with Local 118, though it is bound by an agreement with two other Laborers' locals in DuPage County. Since 1963 the Company has been party to an international agreement (the "International Agreement") ¹ negotiated between Local 118's international, Laborers' International Union of North America, and the Mason Contractors Association of America (the "MCAA") with which the Company is affiliated through its membership in the Mason Contractors Association of DuPage County. Article V, paragraph 1, of that Agreement regulated the Company's relations with Local 118 as follows:

When the Employer [here D.J. Johnson Company] enters into an area where wages, hours and working conditions have been agreed upon through bona fide collective bargaining, the Employer will be presented such evidence by the Union and the Employer will conform his operations accordingly except that all jurisdictional issues and/or disputes shall be resolved under the provisions of Article III, paragraph 3 "Jurisdiction" of this International Agreement. (Emphasis supplied.)

Article III, paragraph 3 provides that "[a]ny dispute over work jurisdiction will be referred to the International Union and the Employer Association [the MCAA] for decision which decision shall be final and binding on all parties." The Agreement provides further in Article X, paragraphs 1 and 3:

It is expressly understood and agreed by both parties to this understanding that any agreement or intention expressed in a local union collective bargaining agreement which provides any method for settling jurisdictional disputes that differs from or conflicts with Article III, paragraph 3 "Jurisdiction" of this International Agreement is held to be null and void and of no force and effect.

* * *

* * *

It being expressly understood between the parties hereto that the procedure for adjustment (set out in ARTICLE X) is exclusive and supersedes any other plan, method or procedure outlined in any agreements between a member or members of the Association and any Local Union.

The Company had signed a Memorandum of Agreement with Local 150 in 1965 that bound the parties to the terms of any collective bargaining agreements negotiated between Local 150 and the Builders Association of Chicago. The Builders Association of Chicago is affiliated with the Construction Employers' Association. ² That Association entered into an agreement with the Chicago and Cook County Building and Construction Trades Council (the "Council") in 1913. That agreement is known as the Standard Agreement. The Standard Agreement established the Joint Conference Board (the "JCB") for resolving jurisdictional disputes. The JCB is a body of twenty-four members divided equally between union and management representatives. Its jurisdiction is restricted to disputes arising in Cook County, Illinois. The agreement between Local 150 and the Builders Association of Chicago requires jurisdictional disputes arising in Cook County to be resolved pursuant to the Standard Agreement, thus requiring the Company and Local 150 to submit jurisdictional disputes to the JCB.

Local 150 is a member of the Council. Local 118 is a member of the Construction and General Laborers' District Council, which is a member of the Council. Both unions' affiliation with the Council binds them to the Standard Agreement negotiated between the Council and the Construction Employers' Association. Thus both locals are bound to submit jurisdictional disputes to the JCB. Their obligation to abide by the Standard Agreement is an independent duty and need not be set forth in any particular collective bargaining agreement.

To summarize, the Company's agreement with Local 150 requires it to submit jurisdictional disputes involving Local 150 to the JCB. That agreement also binds Local 150; in addition Local 150's membership in the Council requires it to submit jurisdictional disputes to the JCB. Local 118 is similarly bound through its affiliation with the Council.

As noted, the Company has no collective bargaining agreement with Local 118. Nonetheless, its adoption of the International Agreement requires it to abide by whatever collective bargaining agreement may be in effect in Cook County, except that all jurisdictional disputes must be submitted to the International Union and the MCAA. This exception contradicts the provision in the Company's collective bargaining agreement with Local 150 requiring it to submit work jurisdiction disputes to the JCB.

On September 2, 1981, the Company filed unfair labor practice charges against both unions. The Company alleged that they had violated Section 8(b)(4)(D) of the National Labor Relations Act (the "NLRA"), 29 U.S.C. Sec. 158(b)(4)(D), which prohibits strikes or coercive activity undertaken with a jurisdictional object. A hearing officer of the NLRB conducted a hearing on October 1 and 9, 1981, pursuant to Section 10(k) of the NLRA, 29 U.S.C. Sec. 160(k). ³ The Company justified its submission of the dispute to the NLRB by asserting that its acceptance of the International Agreement precluded the NLRB's recognition of any contrary agreement to submit the dispute to the JCB. Local 150 maintained in those proceedings that the Board's Notice of 10(k) Hearing should be quashed since an agreed-upon method, that is, submission of the dispute to the JCB, allegedly existed for resolving the jurisdictional dispute.

The Board rejected this contention in a Section 10(k) proceeding with Member Fanning dissenting, and on July 22, 1982, decided the case against Local 150. 262 NLRB 1147. Member Fanning believed that a binding agreed-upon method of settlement existed because all the parties were bound by one of the two dispute settlement procedures at issue, viz., the JCB procedure. In particular, he believed that a failure by both the Company and Local 118 to give formal notice to withdraw from and terminate their respective commitments to honor the decision of the JCB required them to submit to the authority of the JCB which had ruled in favor of Local 150. The Board majority found, however, that it had jurisdiction under Section 10(k) because no "determinative, agreed-upon method of dispute resolution" existed because of the equally binding, conflicting work dispute provisions in the applicable agreements (App. 24).

In the meantime, on September 14, 1981, Local 150 requested a hearing before the JCB. The JCB invited the Company to appear but it declined to do so, asserting that it was not bound to any JCB decisions. Both unions appeared and the JCB thereafter awarded the work to Local 150 before the NLRB's October 1981 hearing of this jurisdictional dispute was closed.

Local 150 declined to comply with the order the Board entered against it. This refusal resulted in an unfair labor practice proceeding against Local 150 upon a complaint filed by a Regional Director of the Board. That proceeding resulted in a unanimous order against Local 150 issued on February 29, 1984 (App. 1-12), with the Board holding that Local 150 could not relitigate the prior Section 10(k) decision. Its decision and order are reported at 268 NLRB No. 200. Local 150 has asked us to review and set aside the Board's 1984 order, while the Board has requested enforcement. Local 150 contends that the availability of the JCB deprived the Board of jurisdiction. Local 150 does not attack the Board's determination on the merits that Local 150's picketing violated Section 8(b)(4)(i) and (ii)(D) of the Act. The parties have stipulated to the Section 10(k) administrative record (App. 3). We uphold the Board's jurisdiction.

II

Judicial review of agency action is quite limited. Factual findings supported by substantial evidence in the record as a whole are conclusive. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). Substantial evidence exists if the record contains "such relevant evidence as a reasonable mind...