Appeal from the United States District Court for the Southern District of Illinois, Springfield Division. No. S 76-C-132 -- J. Waldo Ackerman, Judge .
Before Tone and Wood, Circuit Judges, and Will, Senior District Judge.*fn*
This action by an employer against a local union under § 303 of the Labor Management Relations Act raises the question of whether a strike was protected by the work preservation doctrine established in National Woodwork Manufacturers Association v. NLRB, 386 U.S. 612, 87 S. Ct. 1250, 18 L. Ed. 2d 357 (1967). The district court, after trial, held that it was. We disagree and reverse the judgment.
This is the second time the case has been before us. In an earlier, unpublished decision we reversed a summary judgment on the issue of liability in favor of the employer, and remanded for trial.*fn1 After trial on remand, the district court entered a judgment for the union.*fn2 The present appeal is from that judgment.
In 1970 plaintiff-appellant, George E. Hoffman & Sons, Inc., executed a contract with the State of Illinois to widen and resurface sections of two highways near Princeville, Illinois.*fn3 The work was to be done during the summer of 1971.
Hoffman arranged to subcontract part of the material hauling to three trucking firms, two of which were Long Rock Company and C. A. Walker Truck Lines, Inc.*fn4 Hoffman was to construct a portable asphalt production plant on Long Rock's property in Peoria, about two miles from the project site. The subcontractors were to transport stone, fly ash, and blow sand from various places to the asphalt plant. Long Rock and Walker Truck Lines were also to transport asphalt from the plant to the project site.
The drivers for Hoffman and the subcontractors were members of two locals of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Hoffman's drivers were all members of Local 627, the defendant in this case. Some Long Rock and Walker Truck Lines drivers were members of Local 627. Others were members of Local 15, which is not a party here.
Hoffman and the local unions were parties to a collective bargaining agreement, called the "Articles of Construction Agreement," which covered the period April 1, 1970 to April 1, 1973. The agreement had been negotiated between the Illinois Conference of Teamsters, representing Locals 627 and 15 as well as twelve other Teamsters locals in the state, and the Associated General Contractors of Illinois on behalf of its members, one of whom was Hoffman. Long Rock and Walker Truck Lines were not members of the Associated General Contractors. They separately and independently adopted the agreement after it had been negotiated and entered into by that association and the Conference of Teamsters.
The agreement contains a number of provisions pertinent to this case. Each Teamsters local was conceded to have exclusive jurisdiction over certain counties in Illinois.*fn5 Contractors were required to give notice of impending work to the local union with jurisdiction over the work area and to "request the Referral Office serving the area" to refer persons "available for employment." Generally, the referral office was to refer drivers "from the top" of the referral list, but the prospective employer could ask that specific individuals be referred first. A "pre-job conference between the contractor and the Business Representative of the Local Union in whose territory the work is to be performed" was to be held for the purpose of resolving questions concerning the application of the agreement. As to subcontracting,
The Contractor may hire or contract for the use of operated trucks be they from a fleet owner, another contractor or an owner driver, provided they do not replace his regular employees where he has the necessary equipment available.*fn6
In February 1971 Robert Barker, president and business representative of Local 627, met with two Hoffman representatives in preparation for the upcoming paving season. In accordance with industry practice, Hoffman had terminated the employment of all its drivers at the end of the previous paving season and had yet to rehire any drivers. At the meeting Hoffman requested that the fourteen Local 627 members who had driven for it the previous year be referred first. The parties call the list of those men the "seniority list." Barker agreed to this request, and the union referred those men first during the 1971 season.
The previous season Hoffman had owned ten tandem trucks that had been operated by the men on the seniority list. Between mid-February and early March of 1971, Hoffman sold five of the trucks.
A "pre-job conference" for the Princeville work was held on March 3, 1971. At that time Barker approved Hoffman's subcontract with Long Rock although he knew that all except one of Long Rock's drivers were members of Local 15 rather than 627. According to Barker, Hoffman's general superintendent "agreed in the meeting that (Hoffman) employees would be working first." Shortly after the pre-job conference Barker met with a Walker Truck Lines representative and approved the company to do the work under the subcontract on condition that Walker "use (its) Local 627 drivers first and fill in with (its) Local 15 drivers . . . ." Barker then telephoned Hoffman and approved the subcontract with Walker Truck Lines.
The dispute that gave rise to this case began when, two weeks later, Barker learned that Hoffman had sold five of its ten tandem trucks. Believing that he had been "double crossed," Barker promptly complained orally to J. T. Hackler, Hoffman's general superintendent, and confirmed his complaint with the following telegram to Hoffman:
I am now informing your company that you are not to use any drivers that are not members of Local 627 to do work in the jurisdiction of Local 627. Any drivers that are members of Local 627 must by (sic) cleared by myself. This is in accordance with the agreement between your company and Teamsters Local 627.
As Barker knew, Hoffman itself did not employ, within the jurisdiction of Local 627, any drivers who were not members of that local. Barker testified that he made the clearance demand so he could ensure that seniority list members would work before any other Local 627 members were hired.
Barker reasserted his complaint in mid-May, after Long Rock and Walker Truck Lines began hauling asphalt from the plant to the project site. He testified that in a telephone conversation with Hackler the following was said:
I told him that I was up on the job site, that he had Walker and Long Rock trucks hauling on the site with Local 15 drivers and asked him if he had received a copy of the telegram that I had mailed him previously. He said yes . . . . I said do you have any intent of complying with my telegram, and he said no, he did not, and I told him that I was going to file a claim for backpay for the Hoffman drivers and people off of our referral list for all hours worked by the Local 15 people on this project.
Hackler "more or less" said that the matter "was out of his (Hackler's) hands, that he couldn't control it."
Barker's words, "the Hoffman drivers," apparently referred to the fourteen drivers who had been employed by Hoffman the previous season, i. e., those on the seniority list. The status of those fourteen men as of May 4, 1971, before either subcontractor used Local 15 drivers wholly within Local 627's jurisdiction, was as follows: Ten had already been rehired by Hoffman. Two others were working regularly elsewhere. ...