letter that it claimed the right to the disputed work and that
it had submitted that claim "through the regular channels." The
claim was submitted to the IJDB. On April 6, 1979, the parties
were notified by the IJDB of its decision that plaintiff was
entitled to the disputed work. That decision was not appealed.
The phase II work was completed by members of Local 111 in
June, 1979. Plaintiff filed its complaint herein on June 21,
1979, praying damages to compensate it and its members for that
work which it alleged to have been wrongfully performed by
The phase III disputed work was assigned the same way. On June
22, 1979, plaintiff notified J & J by letter that it claimed
the work and that it would invoke the plan procedures before
the IJDB. On July 20, 1979, that body notified the parties that
it had determined that plaintiff was entitled to the disputed
work. Again, no appeal was taken. The work was completed in
August, 1979, after which plaintiff amended its complaint,
adding a second count for damages on account of the disputed
work under phase III of the project.
The complaint is grounded upon the provisions of Section 301(a)
of the Labor Management Relations Act. 29 U.S.C. § 185(a). It
rests upon plaintiff's position that J & J had a contractual
obligation to comply with the decisions of the IJDB, which is
enforcible under Section 301(a).
Section 10(k) of the Labor Management Relations Act empowers
the NLRB to hear and determine jurisdictional disputes. That
Section further provides that the NLRB shall abstain from
exercising that power if it finds that the parties have
adjusted the dispute or that they have agreed upon methods for
the voluntary adjustment thereof. Section 301 also vests
jurisdiction in the district courts to enforce 10(k) awards, i.
e., awards by the NLRB or awards obtained through an
agreed-upon method for voluntary adjustment. Thus, Section 301
provides a jurisdictional basis for enforcement of IJDB awards
under the plan, e.g., Local 416, Sheet Metal Workers v.
Helgesteel Corp., 507 F.2d 1053 (7th Cir. 1974); Drywall
Tapers & Pointers, Local 1974 v. Plasterers' Union,
601 F.2d 675 (2d Cir. 1979), and the concomitant jurisdiction to
determine whether an IJDB award is valid and enforcible against
a party sought to be charged.
The critical issue before the court is stated by a partial
paraphrase of language from plaintiff's brief. The IJDB
"decisions * * * must be enforced if the parties were bound to
the Plan. The only issues then are whether J & J was a party to
the Plan," or if it was not a party to the plan, whether it
"may raise the nonparty defense."
It must be concluded, from undisputed facts, that J & J was not
a party to the plan. An employer is bound to the plan only when
any one of three circumstances exists, namely: (1) that it had
executed a written stipulation to be bound by the plan, or (2)
that it is a member of an employer association which had
authority to bind its members to the plan and which exercised
that authority by a written stipulation to so bind its members,
or (3) that it is a signatory to a collective bargaining
agreement which contains a provision that jurisdictional
disputes be settled by invoking the plan procedures.
J & J did not stipulate its acceptance of the plan. As above
noted, it had no collective bargaining agreement with
plaintiff. Its agreement with Local 111 does not adopt the plan
procedures as a basis for settling jurisdictional disputes.
Thus, if J & J was party to the plan, that status must have
resulted from its membership in MBI, in conjunction with MBI's
affiliation with AGC.
MBI had not stipulated to bind either itself or its members to
the plan, and the question whether AGC's being a signatory to
the plan had the legal effect of binding its members and
chapters to the plan, must be answered in the negative.
It is not necessary to address the question whether AGC did
have the authority to bind its members and chapters to the
The language of the plan itself permits no area for debate. It
is clear from that language that AGC did not, either expressly
or by implication, exercise whatever power it did have in that
respect. The essence of the plan is voluntary participation.
AGC did not stipulate to be bound by the plan. It and the other
contracting employer associations undertook to "encourage
participation in the Plan by their chapters and members * * *."
That undertaking contemplated that AGC would advise its members
and chapters of the plan and encourage each of them to adhere
to the plan by a voluntary, written stipulation to be bound.
AGC also agreed to advise the IJDB of the refusal of any of its
members and chapters to so stipulate.*fn4
AGC's conduct, as reflected by exhibits before the court, is
wholly consistent with the written provisions of the plan.
After it signed the plan, it directed letters to its members
and chapters advising each of them of the fact of the plan,
which stated that the concept of the plan "is that
participation is to be only by voluntary stipulation by each
contractor or his authorized representative." A subsequent
communication to those affiliates, which enclosed proposed
stipulation forms, stated that, "Although A.G.C. * * * is
signatory to the agreement, that action does not bind A.GIC.
members or chapters to the Plan."
It seems clear that plaintiff relied solely upon the plan
itself when it invoked the intervention of the IJDB into this
dispute. When requested by interrogatory to identify all
documents upon which it relied to show that J & J was a party
to the plan, plaintiff identified the plan itself, the contract
between QC and Local 111, the by-laws of QC, and a policy
statement adopted by AGC. With the exception of the plan, each
of those documents had been provided to plaintiff in the course
of discovery procedures. Nothing contained in any of those
documents can be construed to constitute either a stipulation
by J & J to be bound to the plan or a stipulation by AGC which
purported to bind its members and chapters to the plan. The
conclusion is unavoidable that J & J was not a party to the
It seems to be equally clear that plaintiff cannot prevail upon
its theory of its detrimental reliance as a bar to J & J's
assertion of a "non-party" defense to the complaint.
Plaintiff's position is delineated in the following excerpt
from its brief:
"The plaintiff's reliance on J & J's participation in the
Plan is shown by its immediate resort to the Plan procedures
to claim the undisputed work. At no time during or after the
two Plan proceedings did J & J advise either the plaintiff or
the Board that it was not bound by the Plan. And J & J has
not submitted proof that AGC notified the Board that MBI had
refused to be bound by the Plan as required by Article II, §
1(b) of the Plan. Thus the uncontroverted evidence is that
AGC signed the Plan; that MBI did not, as required by the
Plan, notify the Board of MBI's nonparticipation; and that J
& J did not object to the Board's jurisdiction until it
answered this suit. As a matter of law, the plaintiff has
established the requisite apparent authority and thereby
Plaintiff relies upon several Illinois decisions which treat
the law of apparent agency and the doctrines of ratification
and estoppel which may bind a principal to a contract by the
proof of apparent agency.
Under those doctrines, a principal does become bound to a
contract if he has acted, when faced with demands against him,
in such manner as to mislead a third party to his detriment to
presume the fact of an apparent agency. Those cases are
inapposite to uncontroverted facts here.
Plaintiff's statement of position, as above quoted, assumes the
existence of certain facts which are not shown, indulges
certain inaccuracies as to facts which are shown, and depends
in part upon an impermissible interpretation of the language of
the plan. It incorrectly assumes the apparent agency of AGC to
bind J & J to the plan. The existence of any appearance of
agency must rest upon the language of the plan itself. At the
expense of being repetitious, nothing in the language of the
plan can be construed to suggest that AGC presumed to sign the
plan as the agent of J & J, MBI, or any other employer or
employer association. An appearance of agency did not exist
when plaintiff resorted to the IJDB procedures.
The statement of position also assumes that AGC did not notify
the IJDB that MBI had rejected the plan, without anything to
support that assumption. In fact, the absence of a factual
basis for that assumption is deemed admitted by plaintiff's
assertion that "J & J has not submitted proof that AGC notified
the Board" of MBI's refusal to adopt the plan. Not only does
that assertion appear to be a misallocation of the burden of
proof, but it also presumes that J & J, not a signatory to the
plan, must bear the onus of AGC's assumed default.
The doctrine of detrimental reliance upon apparent agency
presupposes the existence of a contract which would appear on
its face to bind a principal. In the context of the undisputed
proof, no contract is shown to exist. The plan merely invited
the creation of contractual relationships by the unilateral and
voluntary action by contractors or contractors' associations
stipulating acceptance of the plan. Absent proof that J & J, or
some other entity which had the authority to bind J & J, had
stipulated to be bound, there was no contract, but only the
The doctrine of detrimental reliance also rests upon the
existence of some act or deed which would be inclined to
mislead a third party to act to his detriment upon the
misleading impression thereby created. Perforce, any such
misleading act or deed must have occurred not later than
contemporaneously with the taking of the action which is
alleged to have been detrimental. Plaintiff points to no act by
J & J, which preceded its invoking the plan procedures, which
would have tended to lead it to believe that J & J had
stipulated to the plan. It does not even assert that J & J was
advised in advance of plaintiff's invoking the plan that it
intended to do so, unless the statement that a claim would be
submitted through "regular channels" must be interpreted to say
that the claim would be submitted under the plan. The only
misleading action which it attributes to J & J is the latter's
silence and failure to act after the first IJDB proceeding was
instituted. In that context, plaintiff states that J & J did
not invoke the appeal procedures provided under the plan, and
that it did not advise either plaintiff or the IJDB that it had
not stipulated to the plan until after this suit was
filed.*fn6 It hangs its claim of ratification of the plan
upon those recited circumstances.
The argument evades the question whether J & J was legally
obligated to take any action responsive to the IJDB
proceedings. When faced with a claim that an arbitration award
must be enforced, a court must first determine whether a
contract exists by which the party sought to be charged has
agreed to submit the matter in dispute to arbitration.
Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82
S.Ct. 1318, 1320, 8 L.Ed.2d 462 (1962); United Steelworkers v.
Warrior & Gulf Navigation
Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409
(1960). No legal obligation to arbitrate a labor dispute can
arise by operation of law. A party is compelled to submit his
rights to arbitration only if he has contracted to do so.
Gateway Coal Company v. United Mine Workers, 414 U.S. 368,
374, 94 S.Ct. 629, 635, 38 L.Ed.2d 583 (1974). Without such
agreement, the arbitrator obtains no jurisdiction over the
person sought to be charged, and any award made is, as to such
person, a nullity.
Finally, plaintiff invokes the principle stated in certain
arbitration cases, that a party who acquiesces in procedural
defects in a proceeding, is deemed to have waived, or to be
estopped from asserting, that procedural variance against an
arbitration award. E. g., Krieter v. Lufthansa German
Airlines, 558 F.2d 966, 968 (9th Cir. 1977); Order of Railway
Conductors v. Clinchfield Railroad, 407 F.2d 985, 988 (6th
Cir. 1969). Such decisions are patently inapposite here. In
those cases, the parties had submitted their persons to the
jurisdiction of the arbitrator by their agreement to resort to
It must be concluded that J & J was not a party to the plan,
and that there is no factual basis which would support a
determination that it had ratified the plan or that it is
estopped from asserting its nonparty status.*fn7 It follows
that the IJDB awards are void as to J & J.
Plaintiff chose the wrong forum. It could have submitted its
claim to the disputed work to the NLRB under Section 10(k),
without waiving any benefits to be derived under the plan
should the NLRB have determined that all parties were found to
the plan procedure. Having elected to follow that course, it
cannot now rehabilitate its position in the absence of
demonstrated facts sufficient to show that J & J was subject to
the jurisdiction of the IJDB.
Accordingly, plaintiff's motion for summary judgment must be
denied, and the motions of J & J and Local 111 for summary
judgment must be allowed.
IT IS ORDERED, therefore, that summary judgment is entered
dismissing the complaint.