Opposition — International Brotherhood of Teamsters, Local No. 627 v. George E. Hoffman & Sons, Inc.

Supreme Court, U.S,

FILED

No. 80-147 SEP 8 1960

» JIR., CLERK

IN THE use

Supreme Court of the United States

_Octonan pen THR, 1980 :

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF

AMERICA, LOCAL NO. 627,

Petitioner,

v.

GEORGE E. HOFFMAN & SONS, INC.,

RESPONDENT'S BRIEF IN OPPOSITION

KARL W. GRABEMANN

111 West Monroe Street

Chicago, Illinois 60603

STUART I. COHEN

i

QUESTIONS PRESENTED

Respondent does not agree that the questions presented

are as stated by Petitioner. Rather, the real and only questions

involved in the instant case are:

1. Whether, under the work preservation doctrine, a local

union may lawfully strike a construction industry employer to

preclude subcontracting certain off-site work to subcontractors

who do not exclusively employ its members?

2. Whether, pursuant to the “clearly erroneous” standard

set forth in F.R.C.P. Rule 52(a), a court of appeals may

properly draw its own inferences and conclusions from the facts

as established by the trial court and undisputed record evidence

concerning the objects of a strike engaged in by a labor

organization?

SN III, citestinersxtdusbessuatesesssunspebashoteabusinabiniianicebells

I IN ots sale. icaslhcss sacs dannii apsdenaheenhdauidineniiessasiibaavenenilai

Statement of the Case

Reasons for Denying the Wit...............cccsccssssssosseessesessseosees 3

UN siiscsccesishaticptiw cithicdioenshatlNaeiediosinen insite seciaiyndajeinincbohapidtedssawaia 12

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AUTHORITIES CITED

Cases:

American Boiler Manufacturers Association v.

N.L.R.B., 404 F.2d 547 (8th Cir. 1969)...............

Brown v. United States, 419 F.2d 337 (8th Cir.

Canada Dry Corp. v. N.L.R.B., 427 F.2d 907 (6th

Be TT bias tnechoneysttccnstnssebebeadansatarisienepescilanadsncdiivan

C.I.R. v. Duberstein, 363 U.S. 278 (1960) ..............

Franks v. National Dairy Products Corp., 414 F.2d

Re EE: POE D scidldicsinnsnicecneweiscinedsciniwigensnakonasos

Griffith Company v. N.L.R.B., 545 F.2d 1194 (9th

as.

Hillard vy. Commissioner of Internal Revenue, 281

Fe Fy Re CE ANy BO Dick csccsccnscsccysvncocveness

Houston Insulation Contractors Association v.

PE ik I ne HO © IIT Pecosncccncchsccssarecvcossnve

Local Union 282, Teamsters (D. Fortunato), 197

ee ITED aidiinscvancscaterieincioncesesberdstrbssiancens

Meat and Highway Drivers Local 710 v. N.L.R.B.,

Be ae FOR Cs CT, TOGA) vninvsssicccesccsscesnessctee

Moveable Partitions, Inc., 175 NLRB 915, 917

I ieeh in Sill cinchcisbsacdiiaipiosisaeseviscnniebisesensisenhis

N.L.R.B. vy. Denver Building and Construction

Trades Council, 341 U.S. 675, 689 (1951)...........

N.L.R.B. vy. Enterprise Association of Pipefitters,

Pts PE RUT TD de cccrincdetaevchanccsscssecspimsepsteeientss

N.L.R.B. v. International Longshoremen’s Associ-

ation, U.S. ___, 48 L.W. 4765 (1980) ......

Page

11

4,5,8

iv

N.L.R.B. v. Local Union No. 28, Sheetmetal Work-

ers, 380 F.2d 827 (2nd Cir. 1967) ..........sccscssesseees

National Latex Products Co. v. Sun Rubber Co.,

274 F.26 224, 247 (Gtr Cir. WISP) vccvccccccesiccseranovnes

National Maritime Union v. Commerce Tankers

Corporation, 457 F.2d 1127 (2nd Cir. 1972).......

National Woodwork Manufacturers Association v.

WEEE, SOG UB. GES CII FE eiwiictnccsciicn

Orange Belt District Council of Painters No. 48 v.

N.L.R.B., 328 F.2d 534 (D.C. Cir. 1964) ............

Romero v. Garcia & Diaz, Inc., 286 F.2d 347 (2nd

Cir. 1961) cert. denied, 365 U.S. 869 (1961)......

Shumaker v. Grabowski Industries, Inc., 352 F.2d

O37 CTU Cab. TICS) saiccccnissicicensicienihcnticeinneanenigite

United Mine Workers v. N.L.R.B., 399 F.2d 977,

979-900 (BG. Cit. TSGR) cic ncctnnnniendas

United States v. United States Gypsum Company,

533 US. S66 CUBES cccnsisntitnssieditelenionn

Wigginton v. Order of United Commercial Trav-

ellers, 126 F.2d 659 (7th Cir. 1942) cert. denied,

SET RA. GS CIE P icniviecicincrspscicccguainaliana

Statutes:

Sec. 8(b)(4) of the Labor Management Relations

PETE ctssvtithcionisisiiniecestinaieeicamie eae

Miscellaneous:

Moore’s Federal Practice, J 52.04, n. 2 ..............00000

7,8

10

10

10

10

10

No. 80-147

IN THE

Supreme Court of the United States

OcTOBER TERM, 1980

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF

AMERICA, LOCAL NO. 627,

Petitioner,

v.

GEORGE E. HOFFMAN & SONS, INC.,

Respondent.

RESPONDENT’S BRIEF IN OPPOSITION

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Seventh Circuit is not yet officially reported (Pet. App. A-1-24).

Also as yet unreported is the Court’s Order on Rehearing ( Pet.

App. A-25-30), wherein such opinion was modified and Peti-

tioner’s petition for a rehearing denied. An earlier decision of

the Court of Appeals is unpublished, but noted at 530 F.2d 979

(Pet. App. A-36-45). The Order of the United States District

Court for the Southern District of Illinois, after trial of this case

on the issue of liability, is not officially reported, but can be

found at 99 LRRM 3236 (Pet. App. A-31-35). Earlier Orders

2

of the District (Court are reported at 352 F. Supp. 627 (Pet.

App. A-46-60) on such issue, and at 384 F. Supp. 1252 ( Pet.

App. A-61-68) on the issue of damages.

STATEMENT OF THE CASE

a

The “summary of facts” outlined by Petitioner is in part

inaccurate and fails to include the salient facts which caused the

Court of Appeals to reverse the judgment of the trial court. For

a complete portrayal of such facts as the Court of Appeals saw

them—and as they really are—see Pet. App. A-1-12.

On page 3 of the Petition, Petitioner states that Respond-

ent and two of its hauling subcontractors, Long Rock and C. A.

Walker Truck Lines, were parties to the Articles of Construction

Agreement. However, as stated by the Court of Appeals,

Respondent became bound to such Agreement as a con-

sequence of its membership in the Associated General Con-

tractors of Illinois, which had negotiated such Agreement on

behalf of its members. Long Rock and Walker Lines, who

were not members of this’ association, subsequently became

bound to such Agreement when they separately and indepen-

dently adopted it as their own (Pet. App. A-3, 17). Therefore,

Petitioner’s factual contention that such Agreement established

a single, multi-employer bargaining unit is in error. While

Respondent was a member of one bargaining unit, multi-

employer in scope because it consisted of Respondent and other

employer members of the Associated General Contractors of

Illinois, the drivers employed by Long Rock and Walker Lines

comprised other, separate single employer bargaining units

(Pet. App. A-18).

On page 6 of the Petition, Petitioner states that the Court

of Appeals “discredited” Barker’s testimony in that it found

Petitioner sought to prohibit the use of any Local 15 drivers by

Respondent’s subcontractors. However, the Court of Appeals

3

did nothing of the kind since that Court specifically stated: “To

the extent that the evidence is conflicting, we rely primarily on

the testimony of Robert Barker..., since that is the only

evidence referred to by [Petitioner] to support the district

court’s decision.” (Pet. App. A-2 n. 3).

REASONS FOR DENYING THE WRIT

1.

The Court of Appeals, In Accord With This Court’s

Decisions, Properly Rejected Petitioner’s Work Preservation

Defense.

On pages 7-8 of the Petition, Petitioner appears to make

two different arguments with respect to the work preservation

doctrine’s applicability to the instant case. First, Petitioner

submits its strike directed against Respondent was simply an

attempt to recapture work lost when Respondent sold five of its

trucks. In contrast, Petitioner also contends it had the right to

strike Respondent to “retain” construction hauling work for its

““members” on Respondent’s projects within Petitioner’s “geo-

graphical territory” even when such work was performed by

subcontractors, and not Respondent’s employees.

Both theories advanced by Petitioner were properly re-

jected by the Court of Appeals in its well-reasoned decision

(Pet. App. A-13-20). Nonetheless, Petitioner claims the failure

of that Court to find merit in its work preservation defense

conflicts with this Court’s decisions. In this regard, Petitioner

cites National Woodwork Manufacturers Association v.

N.L.R.B., 386 U.S. 612 (1967), and its companion case,

Houston Insulation Contractors Association v. N.L.R.B., 386

U.S. 664 (1967), to support the proposition that “... a union

may exert pressure on an employer to preserve work tradition-

ally performed or fairly claimable by the union’s members”

(emphasis added) (Pet. p. 7). However, these cases permit

4

such pressure to be applied only where a union’s object is

preservation of bargaining unit work, and not where such

actions are “... calculated to satisfy union objectives else-

where.” National Woodwork, supra at 644-645. As the Court of

Appeals held, Petitioner’s strike was not limited to just regain-

ing the jobs bargaining unit employees might have performed if

Respondent had not sold five of its trucks (Pet. App. A-13-15).

In an attempt to bolster its argument, Petitioner also refers

to a recent decision of this Court, N.L.R.B. v. International

Longshoremen’s Association, ___. U.S. ___., 48 L.W. 4765

(1980). However, the issue in that case was not whether the

union was seeking to gain work for bargaining unit members as

opposed to its members generally, Sut rather whether the work

involved in the dispute was, although modified by technological

innovation, the traditional work of bargaining unit employees.

Id. at 4770-4771. Furthermore, the Court therein again

repeated that the work preservation defense is available only to

preserve work for “bargaining unit employees.” Jd. at 4769.

On page 8 of the Petition, Petitioner asserts: “When

[Petitioner] first grieved the issue and then struck, it was

merely reasserting its claim to work historically performed by

its members, i.e., the [Respondent’s] hauling for projects

within the [Petitioner’s] geographical territory.” The problem

with this contention is simply that Respondent itself employed

only members of Petitioner on Respondent’s projects in Peti-

tioner’s territory. Therefore, by its own admission, the object of

Petitioner’s strike against Respondent was the hauling work

performed by Respondent’s subcontractors who did not ex-

clusively employ Petitioner’s members. In this regard, the

Articles of Construction Agreement specifically permitted such

subcontracting by Respondent (Pet. App. A-4).

Although the Respondent’s subcontractors had adopted

the Articles of Construction Agreement, they did so separately

and independently and, therefore, were not part of the multi-

5

employer bargaining group represented by the Associated

General Contractors of Illinois. Thus, the respective employees

of such subcontractors were not in the same bargaining unit

with those of Respondent. E.g., National Maritime Union v.

Commerce Tankers Corporation, 457 F.2d 1127 (2nd Cir.

1972); Moveable Partitions, Inc., 175 NLRB 915, 917 (1969).

Since Petitioner’s strike against Respondent was intended

to benefit its members generally, and not simply those within

the bargaining unit in which Respondent’s employees were

included,’ the Court of Appeals properly, in accord with this

Court’s prior decisions, found that Petitioner had unlawfully

asserted “secondary,” rather than “primary,” pressure against

Respondent. Petitioner cannot, and should not, be allowed to

escape liability by submitting that it was “. . . merely reasserting

its claim to work historically performed by its members” ( Pet.

p. 8), when the work had been claimed for its membership

generally—not just for its members who were part of the

bargaining unit which included Respondent’s employees.

2.

No Conflict Exists Among The Courts Of Appeals With

Respect To The Work Preservation Doctrine’s Applicability

To The Facts And Circumstances Presented In The Instant

Case.

On pages 9-11 of the Petition, Petitioner urges the Court to

find that a conflict exists among the courts of appeals as to what

work is subject to being “fairly claimable” by a union under the

work preservation doctrine. Besides citing this Court’s recent

decision in Longshoremen, supra, Petitioner also relies on

1 Petitioner sought to force Respondent to utilize subcontractors

employing its members exclusively. However, Petitioner never at-

tempted to require that those subcontractors’ employees be within the

same bargaining unit as Respondent’s employees.

6

Canada Dry Corp. v. N.L.R.B., 427 F.2d 907 (6th Cir. 1970);

Meat and Highway Drivers Local 710 v. N.L.R.B., 335 F.2d 709

(D.C. Cir. 1964) and American Boiler Manufacturers Associ-

_ ation v. N.L.R.B., 404 F.2d 547 (8th Cir. 1969). However, the

problem with its analysis is simply that this case has never

turned on whether the work sought by Petitioner was fairly

claimable, but rather on whose behalf it was being claimed. In

this regard, the Court of Appeals corectly stated Respondent’s

position when it said: ““[ Respondent] has conceded that if the

strike was thus limited [to regain the work lost by the sale of

five of its trucks,] it was permissible as work preservation ( Pet.

App. A-13-14).

Petitioner further argues that the Court of Appeals improp-

erly relied on the quantity of the work sought by Petitioner’s

strike in rejecting its work preservation defense when “... it

sought work traditionally performed by its members within its

geographical territory” (Pet. p. 10-11). This contention is not

true. The Court of Appeals specifically stated (Pet. App. A-16

n. 20):

Even if we accept the [ Petitioner’s] argument, there is still

the question of whether a union’s actions may be second-

ary because of the quantity of the work claimed from the

primary employer. We need not consider that issue here,

however, since the record shows that the [Petitioner] was

attempting not to pursuade [Respondent] to do all its

material hauling but to have the subcontractors use [ Peti-

tioner’s] members on the project within [its] jurisdiction.

Nowhere is there any indication that Barker asked [Re-

spondent] to buy or rent additional trucks sufficient for all

the hauling work. Instead, his concern was with the

subcontractors’ use of [non-members of Petitioner] on[ the

subcontractors’] own trucks.

The Petitioner also claims the Court of Appeals’ decision

creates a conflict as to what is the “. . . applicable unit for which

work preservation demands may be made” (Pet. p. 11).

7

Petitioner’s view is that it was privileged to preserve and protect

construction hauling work for its members anywhere within its

“geographical territory” without regard to being restricted in

such purpose to any particular bargaining unit (Pet. p. 12).

However, this contention is clearly without merit since it is now

well settled that agreements and conduct intended to preserve,

protect, acquire or reclaim work for union members generally

(i.e. outside the immediate bargaining unit) do not fall within

the protection of the work preservation doctrine because they

exceed the legitimate interests of bargaining unit employees vis-

a-vis their own employer, and are therefore calculated to satisfy

uuion objectives elsewhere. E.g., Griffith Company v. N.L.R.B.,

545 F.2d 1194 (9th Cir. 1976); National Maritime Union v.

Commerce Tankers Corporation, 457 F.2d 1127 (2nd Cir.

1972); Local Union 282, Teamsters (D. Fortunato), 197 NLRB

673 (1972).

Despite the existence of this well-established principle,

Petitioner asserts that the Court of Appeals’ decision, instead of

being in accord with precedent, “created a conflict.” In support

of its position, Peticioner cited Houston Insulation Contractors

Association, supra, for the proposition that “... work preserva-

tion demands nced not relate directly to employees in the

bargaining unit where action in support of the demand occurs”

(Pet. p. 11). However, in that case, this Court established only

that employees in one bargaining unit may strike in support of

the work preservation claims of employees in another bargain-

ing unit employed by the same employer. The obvious

difference between the situation presented in that case as

opposed to the facts in the instant case is that the union in

Houston Insulation was not seeking to affect the labor relations

policies of other than the immediate employer.

N.L.R.B. v. Local Union No. 28, Sheetmetal Workers, 380

F.2d 827 (2nd Cir. 1967), was cited by Petitioner to support its

position that there can be more than one bargaining unit

8

directly involved in a lawful work preservation strike. That

finding in no way conflicts with the holding in the instant case

since there was no attempt by the union in that case to affect the

labor relations policies of any employers outside of the bargain-

ing units directly involved. Jd. at 831. The opposite was true in

the instant case since Petitioner admittedly was seeking to have

subcontractors of Respondent replace their respective employ-

ees with members of Petitioner.

Orange Belt District Council of Painters No. 48 v. N.L.R.B.,

328 F.2d 534 (D.C. Cir. 1964), another case cited by Petition-

er, was decided three years before National Woodwork. More-

over, the Court of Appeals in that case did not make a

distinction between “principle work unit” and “bargaining

unit”, as Petitioner claims, but, instead, equated the two terms.?

Had Orange Belt been decided after National Woodwork, that

court would likely have used the term “bargaining unit” since,

at p. 538, it did find that claimed work preservation conduct

would be unlawful if its objectives were to “... extend beyond

the [contracting] employer and are aimed really at the union’:

difference with another employer” (brackets appear in court’s

decision, citations omitted ).

Respondent submits that Petitioner has failed to establish

that the decision of the Court of Appeals conflicts with prior

decisions of this Court or any other court concerning rejection

of Petitioner’s work preservation defense. Moreover, the

instant case involves a unique fact situation unlikely to arise

again and, therefore, the decision in this case is unlikely to

affect anyone other than the parties. Furthermore, the Court

has recently decided N.L.R.B. v. International Longshoremen’s

Association, ____ U.S. ___, 48 L.W. 4765 (1980), as well as

N.L.R.B. v. Enterprise Association of Pipefitters, 429 U.S. 507

(1977), both of which explore and explain further the work

2See United Mine Workers v. N.L.R.B., 399 F.2d 977, 979-980

(D.C. Cir. 1968).

9

preservation doctrine. Finally, the present case does not offer

any issues of law concerning this doctrine which have not

already been reviewed and resolved by this Court.

3.

The Court Of Appeals Properly Drew Its Own Inferences

And Conclusions Concerning The Objects Of Petitioner’s

Strike Against Respondent.

As seen by Petitioner, the determination by the trial court

that Barker was unaware at the time of the pre-job conference

that Respondent had sold five trucks ends further inquiry

regarding the object or objects of its strike against Respondent.

However, this Court said in National Woodwork Manufacturers

Association v. N.L.R.B., 386 U.S. 612, 644 (1967):

The determination whether [a disputed clause] and its

enforcement violated 8(b)(4) ... cannot be made without

an inquiry into whether under all the surrounding circum-

stances, the Union’s objective was preservation of work

..., OF whether the arrangement and boycott were tacti-

cally calculated to satisfy union objectives elsewhere.

In the application of this principle, it should be noted that

the facts comprising the record before the Court of Appeals

were not in dispute, nor were such facts in dispute in the trial

court (except as to Barker’s knowledge regarding Respondent’s

sale of trucks). However, whether Barker had such knowledge

is really immaterial in determining liability in the instant case.

The issue of liability in the Court of Appeals was dependent

upon Respondent showing that an object of the Petitioner’s

strike against Respondent was proscribed by § 8(b)(4) and not

immunized by the work preservation doctrine. Such an object

was clearly inferable in this case from the undisputed record

facts, which are based on documentary evidence, uncon-

tradicted testimony, stipulated facts and deposition testi-

mony—all of which disclosed the “surrounding circumstances”

10

into which National Woodwork requires inquiry. In this pos-

ture, where credibility is not a serious factor, it has been held

that the findings of fact of a trial court are not binding on a

reviewing court nor are they entitled to significant weight.

Shumaker v. Grabowski Industries, Inc., 352 F.2d 837 (7th Cir.

1965); Wigginton v. Order of United Commercial Travellers,

126 F.2d 659 (7th Cir. 1942), cert. denied 317 U.S. 636 (1942);

Moore’s Federal Practice, §52.U4, and cases cited in n. 2.

Where, as here, an issue exists as to inferences to be drawn

from facts which are basically undisputed, the Court of Appeals

was free of the “clearly erroneous” rule. National Latex

Products Co. v. Sun Rubber Co., 274 F.2d 224, 247 (6th Cir.

1959), and cases there cited; Hillard v. Commissioner of

Internal Revenue, 281 F.2d 279, 282 (Sth Cir. 1960).

Even if the “clearly erroneous” rule is applicable to the

conclusion reached by the trial court—that Petitioner’s strike

did not have an object violative of § 8 (b) (4), but had as the

sole object work preservation—the record evidence establishing

the “surrounding circumstances” imports a definite and firm

conviction, shared by the Court of Appeals, that a mistake was

made by the trial court (Pet. App. A-14). Therefore, even if

such result could be said to involve only a finding of pure fact

(and not a legal inference, a mixed question of law and fact, or

a question of ultimate fact), this Court has indicated that such

finding may properly be set aside by a court of appeals. United

States v. United States Gypsum Company, 333 U.S. 364 (1948).

See also C.J.R. v. Duberstein, 363 U.S. 278 (1960); Brown v.

United States, 419 F.2d 337 (8th Cir. 1969); Franks v. National

Diary Products Corp., 414 F.2d 682 (Sth Cir. 1969); Romero v.

Garcia & Diaz, Inc., 286 F.2d 347 (2nd Cir. 1961), cert. denied

365 U.S. 869 (1961).

With respect to its determination concerning the object or

objects of Petitioner’s strike against Respondent, the trial judge

concluded that “I cannot rule that [Petitioner’s] actions were

inconsistent with the work preservation objective” (emphasis

11

added). The basic deficiency in his analysis is that the issue

whether Petitioner’s actions were inconsistent with a work

preservation object was not the question the trial court should

have resolved. Instead, the relevant determination was whether

all evidence concerning the “surrounding circumstances” estab-

lished that work preservation was the sole object of the strike

against Respondent. It is well settled that Petitioner was in

violation of § 8 (b) (4) where even one of the objects of its

strike was unlawful despite the existence of one or more other

lawful objects. N.L.R.B. v. Denver Building and Construction

Trades Council, 341 U.S. 675, 689 (1951).

In application of the foregoing principles, contrary to

Petitioner’s argument, the Court of Appeals did not overturn

the trial court’s credibility determination as to when Barker

became aware of the sale of Respondent’s trucks. Nor did such

Court grant Respondent a trial de novo review of the trial

court’s findings of fact (expressly adopted from the original

decision of the district court as to liability, excep: for when

Barker became aware of the sale of Respondent’s trucks).

Instead, the Court of Appeals concluded that, in addition to a

work preservation object, undisputed record evidence estab-

lished that Petitioner’s strike was also motivated by unlawful

objects. It was therefore not improper for the Court of Appeals

to reach this conclusion.

12

CONCLUSION

For the reasons stated above, the Petition should be

denied.

Respectfully submitted,

KARL W. GRABEMANN

111 West Monroe Street

Chicago, Illinois 60603

STUART I. COHEN

First National Bank Bidg.

Peoria, Illinois 61602

Attorneys for Respondent