Sheet Metal Workers' Int'l Assoc. v. Herre Bros. Inc., 97-7450

• Citation: 201 F.3d 231
• Decision Date: 30 December 1999
• Docket Number: No. 97-7450,97-7450
• Parties: (3rd Cir. 1999) SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION LOCAL 19, V. HERRE BROS., INC. APPELLANT
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 231

201 F.3d 231 (3rd Cir. 1999)

SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION LOCAL 19,

V.

HERRE BROS., INC. APPELLANT

No. 97-7450

U.S. Court of Appeals, Third Circuit

Argued April 26, 1999

December 30, 1999

On Appeal from the United States District Court for the Middle District of Pennsylvania D.C. Civil Action No. 95-cv-02131 (Honorable Sylvia H. Rambo) Argued April 26, 1999

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Ronald M. Katzman, Esquire (Argued) Steven E. Grubb, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street Strawberry Square P. O. Box 1268 Harrisburg, PA 17108 Thomas R. Davies, Esquire (Argued) Harmon & Davies, P.C. 2306 Columbia Avenue Lancaster, PA 17603 Attorneys for Appellant

Bruce E. Endy, Esquire (Argued) Spear, Wilderman, Borish, Endy, Spear and Runckel 230 South Broad Street -Suite 1400 Philadelphia, PA 19102 Attorney for Appellee

Before: Scirica, Roth and Mckay,^* Circuit Judges

OPINION OF THE COURT

MCKAY, Circuit Judge.

This appeal arises from a dispute between Plaintiff Sheet Metal Workers' International Association Local 19 [Union], Defendant Herre Bros., Inc., and a third party, Sheet Metal Contractors Association of Central Pennsylvania[SMCA] concerning the enforcement of a collective bargaining agreement. Herre Bros. attempted to revoke its bargaining rights in the SMCA with the intent that it would not be bound by a later-negotiated collective bargaining agreement between the SMCA and the Union. The Union sued Herre Bros., taking the position that Herre Bros. was bound to the Union's 1995 agreement with the SMCA. The district court granted summary judgment to the Union, ruling that Herre Bros. was bound to the 1995 collective bargaining agreement, and ordered specific performance of that agreement after a trial on damages. Herre Bros. appeals the district court's rulings.

I.

Herre Bros. is a mechanical and electrical contractor in Enola, Pennsylvania, engaged in the construction of sheet metal, piping, plumbing, heating, and air conditioning. Beginning in at least 1992, Herre Bros. joined the SMCA, a multiemployer bargaining association comprised of sheet metal and air conditioning contractors. The parties agree that as a result of that membership Herre Bros. was a party to the collective bargaining agreement between the Union and the SMCA which was effective from June 1, 1992, through May 31, 1995. In February 1995, Herre Bros. notified the SMCA that it no longer authorized the association to bargain on its behalf. Subsequently, the SMCA sent, and the Union received, notice that the association no longer had the bargaining authorization of Herre Bros. This notification was signed by Anthony J. Forlizzi, who was both president of the SMCA and vice-president of Herre Bros. In the meantime, the 1992 collective bargaining agreement was nearing expiration and the parties set about negotiating a new agreement.

The SMCA and the Union entered into a new agreement effective June 1, 1995, to May 31, 1998, but Herre Bros. and the Union failed to negotiate any agreement. Near the end of the bargaining between Herre Bros. and the Union, in August and September 1995, the Union allegedly discovered that Herre Bros. was still an active member of the SMCA despite its revocation of bargaining rights. The Union took the position that Herre Bros. was bound by the 1995 agreement because of Herre Bros.' continuing membership in the SMCA. Herre Bros. then withdrew its membership from the SMCA and refused to be bound by the 1995 agreement. For its part, the SMCA refused to either provide the Union with a copy of its by-laws and constitution or convene a Joint Adjustment Board to hear a grievance against Herre Bros. In response, counsel for the Union indicated that the Union would file unfair labor practice charges with the National Labor Relations Board.

In December 1995, the Union filed a complaint pursuant to 29 U.S.C. S 195 against Herre Bros. claiming that it had breached the 1995 collective bargaining agreement with the Union by failing to recognize that agreement and adhere to its terms.¹ Meanwhile, a panel of the National Joint Adjustment Board unanimously decided on March 21, 1996, that Herre Bros. was bound to the existing collective bargaining agreement effective from June 1, 1995, through May 31, 1998, because Herre Bros. "did not follow the procedures required to properly withdraw their bargaining rights[ ] and Association membership." ² App., Vol. II at 236A.

On cross-motions for summary judgment on the issue of liability, the district court granted partial summary judgment to the Union in an order filed September 16, 1996. See id. at 256A. The court determined that Herre Bros. had not effectively withdrawn from the SMCA and therefore was bound to the terms of the new agreement. The court, however, deferred entry of judgment until the conclusion of the case. It also denied Herre Bros.' motion for reconsideration of the summary judgment decision. On November 18, 1996, the district court conducted a bench trial on the issue of damages. On August 27, 1997, the court entered an Order and Memorandum that disposed of some of the damages issues in the case and granted specific performance of the 1995 agreement but which again deferred entry of judgment until the conclusion of the case. See id., Vol. I at 12A, 14A.

II.

As a threshold issue, we must determine whether the district court's order, or a portion thereof, is appealable or whether the appeal should be dismissed for lack of jurisdiction. The August 27, 1997 Order from which the appeal is taken granted judgment to the Union in the amount of $325,203.98; required Herre Bros. to provide the Union with an accounting of all hours worked by nonunion workers between September 27, 1996, and the date of the order; allowed the Union to file a supplemental brief requesting damages to union funds resulting from Herre Bros.' failure to utilize union workers after September 27, 1996, and allowed Herre Bros. to file a reply brief thereto; directed Herre Bros. to specifically perform the 1995 contract between the Union and the SMCA until it expired in 1998; and directed the clerk of the court "to defer entry of judgment until the conclusion of the case." Id. at 12A-13A. Herre Bros. filed its notice of appeal from this order on September 14, 1997.

In a letter dated September 16, 1997, this court notified the parties that the appeal would be submitted for possible dismissal due to a jurisdictional defect, namely, that the order filed August 27, 1997, did not appear to be final within the meaning of 28 U.S.C. S 1291. In response, both parties contend that the August 27 Order is appealable because the portion of it which directs specific performance of the 1995 agreement is an appealable interlocutory order. It seems clear and is beyond dispute that the August 27 Order is not a final judgment in that it does not dispose of all of the damages issues in the case and because it defers entry of judgment until a later undetermined time. Nonetheless, we believe the parties are correct in arguing that the specific performance portion of the August 27 Order is appealable under 28 U.S.C. S 1292(a)(1) based on the following analysis.

In its Memorandum accompanying the August 27 Order, the district court made findings of fact and conclusions of law concerning damages. The court found that the Union sought various money damages, "a declaratory judgment that Herre [Bros.] [was] bound by the 1995 agreement," and "specific performance requiring Herre [Bros.] to honor the 1995 agreement." Id. at 18A-19A. In analyzing monetary damages, the court stated that the Union "[was] entitled to" damages for work performed by union members and nonunion members after June 1, 1995, id. at 19A, 32A, and also to liquidated damages. See id. at 31A, 33A. In its discussion of declaratory relief, the court explained that because it had previously determined that Herre Bros. was bound by the 1995 agreement "the clerk of [the] court [would] enter judgment in favor of [the Union] on the issue of liability" at the conclusion of the case. Id. at 31A. The court then discussed the Union's demand of specific performance which would require Herre Bros. "to hire all of its workers from the union hiring hall." Id. at 32A. The district court granted this relief, concluding that Herre Bros. "[would] be directed to specifically perform the 1995 contract for the remainder of its term." Id. at 33A. In contrast to the court's language in the Memorandum determining that the Union was entitled to certain damages and a declaratory judgment, the court clearly stated that it was directing Herre Bros. to specifically perform the 1995 agreement until its expiration in May 1998. See id. at 32A-33A. Further, while the declaratory relief portion of the Memorandum clearly deferred entry of judgment until the conclusion of the case, see id. at 31A, the paragraph granting specific performance contained no such limitation. See id. at 32A. These differences in the court's use of language leads us to conclude that the court intended the order of specific performance to be an injunctive order that was effective immediately. In addition, we believe that the specific enforcement of the 1995 agreement falls under the definition of an injunctive order because it was "directed to a party, enforceable by contempt, and designed to accord or protect some or all of the substantive relief sought" by that party. Cohen v. Board of Trustees, 867 F.2d 1455, 1465 n.9 (3d Cir. 1989) (citations and quotation marks omitted); see also Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 154 (3d Cir. 1999) (characterizing the denial of specific performance as a preliminary injunction).

Our treatment of the specific performance portion of the August 27 Order as an appealable injunctive order also is supported by a subsequent order filed by the district court. In...