Breckenridge O'Fallon, Inc. v. International Brotherhood of Teamsters Local Union No. 682

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

BRECKENRIDGE O’FALLON, INC., )

BRECKENRIDGE JEFFERSON )

COUNTY, INC., OZARK BUILDING )

MATERIALS, L.L.C., and )

BRECKENRIDGE OF ILLINOIS, L.L.C., )

)

Plaintiffs, )

)

v. ) No. 4:21-CV-00621-NCC

)

INTERNATIONAL BROTHERHOOD OF )

TEAMSTERS LOCAL UNION NO. 682, )

)

Defendant. )

MEMORANDUM AND ORDER

This matter is before the Court on Plaintiffs’ Motion to Lift the Court’s September 21,

2021 Stay (Doc. 28). In response, Defendant filed a Motion to Dismiss Plaintiff’s Complaint

(Doc. 29). Plaintiffs filed a memorandum in opposition to Defendant’s Motion to Dismiss (Doc.

30). The parties have consented to the jurisdiction of the undersigned United States Magistrate

Judge pursuant to Title 28 U.S.C. § 636(c) (Doc. 23). For the following reasons, Plaintiffs’

Motion to Lift the Court’s September 21, 2021 Stay (Doc. 28) will be GRANTED, and

Defendant’s Motion to Dismiss Plaintiff’s Complaint (Doc. 29) will be DENIED.

I. Background

Plaintiffs are four Missouri ready mix concrete and building material suppliers:

Breckenridge O’Fallon, Inc. (“O’Fallon”), Jefferson County, Inc. (“JeffCo”), Ozark Building

Materials, L.L.C. (“Ozark”), and Breckenridge of Illinois, L.L.C. (“Illinois”) (collectively

“Plaintiffs”) (Doc. 1 at 2). While not a party, Breckenridge Material Company (“BMC”) is

another supplier of ready mix concrete and building materials to customers in Missouri and

Illinois (id. at 4). Defendant is a union, International Brotherhood of Teamsters, Local Union

No. 682 (“Local 682”) (id. at 2-3).

Plaintiffs allege as follows. The Collective Bargaining Agreement (“CBA”) between

BMC and Local 682 expired on March 14, 2021 (id. at 4). Plaintiffs claim that Local 682

refused to bargain in good faith with BMC by engaging in pattern bargaining and adopting a

take-it-or-leave-it position (id. at 5).1 On April 26, 2021, Local 682 picketed BMC (id. at 6). On

April 29, 2021, Local 682 picketed O’Fallon, JeffCo, Ozark, and Illinois (id.). O’Fallon, JeffCo,

Ozark, and Illinois were in turn unable to deliver products to customers (id. at 7).

In Count I of the Complaint, Plaintiffs claim the April 29th picketing was unlawful

secondary picketing in violation of § 8(b)(4) of the National Labor Relations Act (“NLRA”), 29

U.S.C. § 158(b)(4), and § 303 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. §

187, because O’Fallon, JeffCo, Ozark, and Illinois are separate legal and operating entities from

BMC (id. at 6-8).2 In Count II, Plaintiffs claim that the April 29th picketing was unlawful

secondary picketing and violated the no-strike provisions of the CBAs with O’Fallon, JeffCo,

1 Pattern bargaining is the process where a union enters into a pattern agreement with

parties within a given industry and demands any other entity wishing to do the same business

within a specific jurisdiction of the union must accept the terms and conditions of the pattern

agreement (Doc. 25 at 4).

2 A secondary picketing or boycott claim under § 303 of the LMRA, through cross-

reference to § 8(b)(4) of the NLRA, “prohibits … secondary boycott activities … directed at

parties who are not involved in the labor dispute, as opposed to primary boycott activities in

which a union pressures an employer to change its behavior.” Fed. Lab. Law: NLRB Prac. §

12:1 (Feb. 2022 Update). “The gravamen of a secondary boycott is that its sanctions bear, not

upon the employer who alone is a party to the dispute, but upon some third party who has no

concern in it.” Id. “Its aim is to compel the third party to stop business with the employer in the

hope that this will induce the employer to give in to his employees' demands.” Id. “The ally

doctrine in secondary boycott cases may be applied when a primary employer and a secondary

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and Ozark in violation of § 301 of the LMRA, 29 U.S.C. § 185 (id. at 8).

On September 21, 2021, pursuant to the doctrine of primary jurisdiction, this Court

stayed this action pending resolution of related charges before the National Labor Relations

Board (“NLRB”) (Doc. 25). The NLRB proceedings have now concluded.

A. NLRB proceedings3

In case 14-CB-276126, BMC filed a charge (the “Charge”) alleging that Local 682’s

take-it-or-leave-it pattern bargaining violated § 8(b)(3) of the NLRA, 29 U.S.C. § 158(b)(3)

(Doc. 29 at 2; Doc. 28-2).

In case 14-CC276803, BMC filed another charge (the “Priority Charge”) alleging that

Local 682’s picketing was secondary picketing and unlawful in violation of §§ 8(b)(3) and

8(b)(4) of the NLRA, 29 U.S.C. § 158(b)(3)-(4) (Doc. 29 at 2; Doc. 28-2).

On August 25, 2021, Acting Regional Director William B. Cowen dismissed the Priority

Charge based on insufficient evidence in a short-form dismissal (Doc. 28-1; Doc. 29 at 16). On

November 4, 2021, Director Mark E. Arbesfeld denied BMC’s appeal to the General Counsel

and Office of Appeals (Doc. 28-2).

As to a “related charge” (i.e., the Charge), Director Arbesfeld noted that the evidence

disclosed in that case showed that Local 682’s pattern bargaining was lawful, but its take-it-or-

leave-it position was unlawful: “the Union exceeded lawful hard bargaining and engaged in bad

faith bargaining only by the manner in which it conducted itself in negotiations, by asserting a

employer are so closely related or integrated that the secondary employer should not be

permitted the protection of § 8(b)(4)(B).” 13 A.L.R. Fed. 466 (1972).

3 To flesh out the NLRB proceedings, minimal facts are drawn from Plaintiff’s

memorandum in opposition to Defendant’s Motion to Dismiss (Doc. 30). However, the Court

does not rely on any of those facts in deciding Plaintiffs’ Motion to Lift the Court’s September

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‘take it or leave it’ position that demonstrated an unwillingness to reach an agreement; however,

the Union’s object of trying to obtain an area contract consistent with industry standards was

otherwise lawful in this case” (Doc. 28-2 at 1).

As to the Priority Charge, Director Arbesfeld found the picketing was not unlawful.

Director Arbesfeld found that O’Fallon and JeffCo were a single entity/employer with BMC,

finding: “[i]n addition to common ownership and common or centralized control of labor

relations, the evidence supported a finding that there was common management and interrelation

of operations despite the differences among the entities cited in the appeal” (Doc. 28-2 at 1-2;

Doc. 29 at 16). Director Arbesfeld found that Ozark was a neutral and not a single

entity/employer with BMC, but that the picketing complied with the standards in Sailors Union

of the Pac. (Moore Dry Dock Co.), 92 NLRB 547 (1950) (Doc. 28-2 at 2; Doc. 29 at 16).

Director Arbesfeld did not find that Illinois was a single entity/employer with BMC and did not

comment on whether Illinois was a neutral (Doc. 28-2 at 1-2; Doc. 29 at 16).

Defendant argues this action should be dismissed based on the NLRB proceedings (Doc.

29). Plaintiffs argue that the stay should be lifted and this action allowed to proceed (Docs. 28,

30). The Court agrees with Plaintiffs.

II. Analysis

Section 303 of the LMRA creates a claim for damages for a violation of § 8(b)(4) of the

NLRA, which governs secondary picketing and boycotts. 29 U.S.C. §§ 158(b)(4), 187. Section

303 is an alternative to the pursuit of administrative remedies. International Longshoremen's &

Warehousemen's Union v. Juneau Spruce Corp., 342 U.S. 237 (1952). Section 303 “provides a

21, 2021 Stay (Doc. 28) or Defendant’s Motion to Dismiss Plaintiff’s Complaint (Doc. 29).

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remedy independent of NLRB proceedings, and … the one may be pursued without first

exhausting the other.” Hyatt Chalet Motels, Inc. v. Salem Bldg. & Const. Trades Council, 298 F.

Supp. 699, 702 (D. Or. 1968). The NLRB (the “Board”) need not determine that a union’s

conduct constitutes an unfair labor practice under § 8(b)(4) of the NLRA as a prerequisite to suit

under § 303 of the LMRA. Mason-Rust v. Laborers' Int'l Union of N. Am., AFL-CIO, Loc. 42,

435 F.2d 939, 942 (8th Cir. 1970).

However, a Board determination may be given res judicata or collateral estoppel effect in

a § 303 action. See, e.g., Hyatt Chalet Motels, 298 F. Supp. 699 (holding Board determination of

§ 8(b)(4) violation established union’s liability in § 303 action); Int'l Wire v. Loc. 38, Int'l Bhd.

of Elec. Workers, 475 F.2d 1078 (6th Cir. 1973) (holding Board determination of no § 8(b)(4)

violation established union was not liable in § 303 action). The district court in Hyatt Chalet

Motels found that where full findings on the merits were made by the Board, and the Board's

order was enforced by the Court of Appeals, the Board determination should be given res

judicata effect. 298 F. Supp. at 702. Likewise, in International Wire, the Sixth Circuit held that,

after a full hearing before an NLRB Trial Examiner where there was no contention that the

employer had been denied a full and fair hearing, and the Trial Examiner and the Board found

that no unfair labor practice had been proved and dismissed the complaint, the Board

determination was rightly given collateral estoppel effect. 475 F.2d at 1079.

Here, no hearing was held as part of the NLRB proceedings. The parties have not cited,

and the Court has not found, a case where res judicata or collateral estoppel was applied absent a

hearing. Rather, the weight of authority holds that the mere dismissal of a charge is not entitled

to res judicata effect. In International Wire, the district court considered the line of authority in

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Thomas v. Consolidation Coal Co. (Pocahontas Fuel Co. Div.), 380 F.2d 69 (4th Cir. 1967),

Aircraft & Engine Maint. & Overhaul, Bldg., Const., Mfg., Processing & Distribution v. I. E.

Schilling Co., 340 F.2d 286 (5th Cir. 1965), and Taube Elec. Contractors, Inc. v. Int'l Bhd. of

Elec. Workers, Loc. Union No. 349, AFL-CIO, 261 F. Supp. 664 (S.D. Fla. 1966). Int'l Wire v.

Loc. 38, Int'l Bhd. of Elec. Workers, 357 F. Supp. 1018, 1020 (N.D. Ohio 1972), aff'd, 475 F.2d

1078 (6th Cir. 1973). The court noted that, “in each of those cases the NLRB declined to take

action on the complaint of an unfair labor practice [so] there was no final administrative decision

which could support a claim of res judicata.” Id.

In Thomas, “the Regional Director, John C. Getreu, found insufficient evidence of

violation, and upon review it was found that further proceedings were deemed unwarranted,

which decision was not appealed.” 380 F.2d at 79.4

In I. E. Schilling, “Schilling filed a charge [and] [t]he general counsel declined to issue a

complaint.” 340 F.2d at 289. The Fifth Circuit noted that “[t]he failure of the general counsel to

issue a complaint is not necessarily based on the evidence or the merits of a case” and that

dismissal of the § 303 action would “deny to the employer his day in court in clear contradiction

to the requirements of Section 303.” Id. In another case Oolite Concrete, the Fifth Circuit

likewise held, based on I. E. Schilling, that “the right of the employer to file [a § 303 action] is

not affected by the circumstance that the Labor Board declines to proceed with an unfair labor

practice charge.” Aircraft & Engine Maint. & Overhaul, Bldg., Const., Mfg., Processing &

Distribution & Allied Indus. Emp., Loc. 290, Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen

& Helpers of Am. v. Oolite Concrete Co., 341 F.2d 210 (5th Cir. 1965). Notably, the refusal to

4 Note, Thomas involved a § 301 action. 380 F.2d at 77-79.

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issue a complaint in Oolite Concrete was based upon a finding of no § 8(b)(4) violation. See

Taube Elec. Contractors, 261 F. Supp. at 665 (observing “[w]hile [I.E. Schilling] indicates that

the refusal by the general counsel to issue a complaint was not based upon a consideration of the

merits of the charges, the record in [Oolite Concrete] clearly establishes that the general

counsel's refusal to issue a complaint was based upon a finding that the activities complained of

were not proscribed by Section 8(b)(4)”).

In Taube Electrical Contractors, “[a]n investigation was conducted by the Regional

Director which resulted in a finding that the evidence adduced during the investigation was

insufficient to warrant the issuance of a complaint pursuant to Section 8(b)(4)(C) and except for

one instance of picketing there was likewise an insufficiency of evidence to warrant the issuance

of a complaint pursuant to Section 8(b)(4)(B).” 261 F. Supp. at 664. The court granted a motion

to strike the defense of res judicata. Id. at 666; see also Am. President Lines, Ltd. v. Int'l

Longshore & Warehouse Union, Alaska Longshore Div., Unit 60, 721 F.3d 1147, 1156 (9th Cir.

2013) (“Although some courts have applied collateral estoppel to issues the NLRB has decided

in a fully litigated enforcement proceeding, the federal courts have unanimously held that the

mere dismissal of a charge by the General Counsel does not preclude a Section 303 action”)

(citation omitted); United Food & Com. Workers Int'l Union Loc. No. 576, AFL-CIO v. N. L. R.

B., 675 F.2d 346, 353 n.7 (D.C. Cir. 1982) (“Although the General Counsel's decision to dismiss

represents an estimate of the merits of the charge and operates to foreclose Board consideration

of that charge, it is not a decision on the merits with res judicata effect.”); Peltzman v. Central

Gulf Lines, Inc., 497 F.2d 332, 334–35 (2d Cir. 1974) (“[T]he decision of the General Counsel

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not to file a complaint on [the plaintiff's] behalf has no res judicata effect, as it is not a final

judgment on the merits.”).

Accordingly, this Court must allow Plaintiffs to proceed with their § 303 claim,

notwithstanding Director Arbesfeld’s findings that Local 682’s picketing was not unlawful and

that at least two of the plaintiffs, O’Fallon and JeffCo, were a single entity/employer with BMC.

While Defendant invokes the doctrine of primary jurisdiction (and, indeed, the Court

stayed this action on that basis), that doctrine has no application to dismiss this action. Section

301 of the LMRA creates a claim for contractual violations. 29 U.S.C. § 185. Under the

doctrine of primary jurisdiction, a federal court will not review claims that are characterized as

contractual but are actually primarily representational in nature. Dist. No. 1, Pac. Coast Dist.,

Marine Engineers' Beneficial Ass'n, AFL-CIO v. Liberty Mar. Corp., 815 F.3d 834, 839–41

(D.C. Cir. 2016); Morello v. Fed. Barge Lines, Inc., 746 F.2d 1347, 1349–50 (8th Cir. 1984).

The court must “examin[e] the major issues to be decided” and determine “whether they can be

characterized as primarily representational or primarily contractual.” Local Union 204, Int'l Bhd.

of Elec. Workers v. Iowa Elec. Light & Power Co., 668 F.2d 413, 419 (8th Cir. 1982). In

primary jurisdiction cases, courts are largely examining § 301 claims that implicate § 9 of the

NLRA, 29 U.S.C. § 159, which explicitly governs “representatives and elections.”

Here, there is really no issue of representation. Rather, Plaintiffs alternately assert their §

303 secondary picketing claim as a contractual § 301 claim, arguing that the picketing violated

no-strike provisions in the various CBAs. The Court will allow this claim to proceed along with

the § 303 claim. See Dist. No. 1, Pac. Coast Dist., Marine Engineers' Beneficial Ass'n, AFL-

CIO, 815 F.3d at 840 (a federal court has jurisdiction where a claim is also contractual). As a

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final matter, the Court notes that, while the NLRB proceedings are not dispositive, the Court may

consider them as persuasive.

III. Conclusion

Accordingly,

IT IS HEREBY ORDERED that Plaintiffs’ Motion to Lift the Court’s September 21,

2021 Stay (Doc. 28) is GRANTED.

IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss Plaintiff’s Complaint

(Doc. 29) is DENIED.

IT IS FURTHER ORDERED that the parties shall file a revised Joint Scheduling Plan

no later than fourteen (14) days from the date of this order.

Dated this 13th day of July, 2022.

/s/ Noelle C. Collins

NOELLE C. COLLINS

UNITED STATES MAGISTRATE JUDGE

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