LOCAL 33, INT. HOD CARRIERS, ETC. v. MASON TENDERS, ETC.

• Decision Date: 08 June 1961
• Docket Number: Docket 26677.,No. 315,315
• Citation: 291 F.2d 496
• Parties: LOCAL 33, INTERNATIONAL HOD CARRIERS BUILDING AND COMMON LABORERS' UNION OF AMERICA, Plaintiff-Appellant, v. MASON TENDERS DISTRICT COUNCIL OF GREATER NEW YORK and Local 23, International Hod Carriers Building and Common Laborers' Union of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

291 F.2d 496 (1961)

LOCAL 33, INTERNATIONAL HOD CARRIERS BUILDING AND COMMON LABORERS' UNION OF AMERICA, Plaintiff-Appellant, v. MASON TENDERS DISTRICT COUNCIL OF GREATER NEW YORK and Local 23, International Hod Carriers Building and Common Laborers' Union of America, Defendants-Appellees.

No. 315, Docket 26677.

United States Court of Appeals Second Circuit.

Argued April 11, 1961

Decided June 8, 1961.

Howard N. Meyer, New York City (Paul O'Dwyer and O'Dwyer & Bernstien, New York City, on the brief), for plaintiff-appellant.

Ernest Fleischman, New York City (Aaron Weissman and Delson, Levin & Gordon, New York City, on the brief), for defendant-appellee, Mason Tenders Dist. Council of Greater New York.

Helen Minkin, New York City (Giuffre & Minkin, New York City, on the brief), for defendant-appellee, Local 23, International Hod Carriers Building and Common Laborers' Union of America.

Before CLARK, MEDINA and FRIENDLY, Circuit Judges.

MEDINA, Circuit Judge.

On a series of motions and cross-motions that we shall later describe in some detail the District Court has dismissed the complaint of Local 33, International Hod Carriers Building and Common Laborers' Union of America for failure to state a claim upon which relief can be granted under Section 301 (a) of the Labor-Management Relations Act, 29 U.S.C.A. § 185(a), and Local 33 appeals. Chief Judge Ryan's opinion is reported at 186 F.Supp. 737. The action is one for a declaratory judgment and for injunctive relief, based upon an alleged "agreement, custom and practice" concerning the assignment or allocation of work by Mason Tenders on building construction in the City of New York. While, as will later appear, we have decided that there was no such "agreement, custom or practice" as is alleged, and that summary judgment for appellees should have been granted for this reason, and also because the record clearly discloses that Local 33 had not exhausted its contractual administrative remedies within the framework of the Constitutions of the Unions, there is necessarily involved in limine the question of the jurisdiction of the District Court to consider the case under Section 301(a) of the Labor-Management Relations Act, 29 U.S.C.A. § 185(a).

The dispute itself is simple enough. There was an old hotel at 33 West 51st Street, in New York City. Because the condition of a parapet on the roof of the hotel had become a source of danger it was repaired, and some Mason Tenders, members of defendant Local 23 of the International Hod Carriers Building and Common Laborers' Union of America, were employed by Turner Construction Company for a few days in December, 1956, repairing the parapet. The business agent of Local 23 promptly appointed a shop steward and, as required by the Union rules, he notified the defendant Mason Tenders District Council of Greater New York. In the course of time the hotel was torn down and the land on which it stood was used for a time as a parking space for automobiles. In 1959 the construction of the new Zeckendorf Hotel, as it was called, was commenced on a large parcel, which included the site of the hotel that had been demolished. The work began on August 3, 1959 and the first two Mason Tenders to be employed by the contractor, Fuller Construction Company, were Richard Fitzsimmons and Patrick Kelly, members of Local 33. The business agent of Local 33 at once appointed Patrick Kelly "as shop steward for this construction job" and sent the customary notification to the District Council. Shortly thereafter Local 23 claimed to be entitled to designate the shop steward because of the repairs in 1956 to the parapet on the roof of the old hotel, on part of the Zeckendorf Hotel job site. Each of the two locals rested its claim upon a so-called custom or practice that is said to have been recognized by the Mason Tenders in New York City for many years.

The Hod Carriers Building and Common Laborers' Union consists of several separate but affiliated labor organizations formed in accordance with a more or less common type of system or plan. In the New York metropolitan territory there are five Locals of Mason Tenders, including Local 23 and Local 33. Next higher up is the Mason Tenders District Council of Greater New York. At the top is the International. Each of these Unions is a separate entity, but each is contractually bound to the others by the terms of their respective Constitutions, especially the Constitution of the International. The District Council is given jurisdiction, supervision and control of all matters relating to agreements with employers in the City of New York, with power to discipline its Locals for violations and compel obedience by them to the Constitution of the International. Elaborate and detailed procedures are prescribed for the processing of grievances, such as is the basis of the claim of Local 33 in this case, and under Article 13, Section 1 of the Constitution of the International, it is provided that neither the District Council nor any of the affiliated Locals shall resort to a court in any matter involving a question arising out of their membership until they have first exhausted the remedies provided by the respective Constitutions of the International, the District Council and the Local. All these documents are in the record before us here. The first step was an appeal by Local 33 to the administrative head of the District Council and he promptly ruled in favor of Local 23.

The Collective Bargaining Agreement between the Building Contractors Employers Association, Inc. and the District Council, effective from July 1, 1957 to June 30, 1960 merely provided in Article VII, Section 1: "Where Mason Tenders are employed on a job, the Union shall designate a shop steward who shall be the second man on the job up to the completion of the job." There was no strike, no coercion or pressure of any kind brought to bear on the employer or upon anyone else. Local 33's shop steward was out and Local 23's was in.

Thereafter, on September 8, 1959, and in accordance with the procedure prescribed in the Constitutions, Local 33 filed a grievance with the District Council. The Executive Board, after a hearing, decided in favor of Local 23, and Local 33 was informed of this decision by letter of October 14, 1959. This action was confirmed by vote of the entire District Council, including the other affiliated Locals, having the same standing in the framework of the Unions as Locals 23 and 33, and a letter notifying Local 33 of this action was sent on November 19, 1959.

In the meantime counsel for Local 33 had been diligently dictating letters. Complaint was made that Local 33 had not been afforded at the hearings or meetings the opportunity of counsel and the right to its own stenographer, although we find nothing in any of the Constitutions of the various Unions to indicate that any such right existed, and it was protested that the failure to deliver a copy of the minutes of the hearing before the Executive Board impaired the right of Local 33 to appeal to the International. There was much dust thrown in the air. We have no way of knowing whether Local 33 and its advisers really thought it was being deprived of its right of appeal to the International, or was merely building up an excuse to by-pass the appeal and throw the controversy into the District Court.

On November 23, 1959 Local 33 again requested a copy of the minutes, and a copy of this letter was sent to the International. The whole tenor of Local 33's letters of November 11 and 23, 1959 was to the effect that it intended to appeal to the International. Thus it was quite natural, we think, for the International to inform Local 33 on December 29, 1959 that the International treated Local 33's letters of November 11 and 23 as notices of appeal to the General Executive Board of the International within the 30 days allowed for such an appeal, and the case was put on the January, 1960 calendar. Both Local 33 and the District Council were directed to submit as soon as possible "copies of all papers and documents or other data required by the Constitution in connection with such matters." This, of course, included the minutes about which Local 33 was making such a fuss.

The complaint in this action was filed on December 30, 1959, the defendants were served on January 5, 1960, and Local 33's appeal to the General Executive Board of the International was adjourned because it was thought that it might interfere with the action before the District Court. We think it quite clear that the appeal is still pending and that Local 33 has not exhausted its contractual administrative remedies.

It will also suffice to say by way of preliminary that the papers submitted in support of and in opposition to appellant's motion for summary judgment disclose a welter of miscellaneous charges and counter-charges out of which the only inference we can draw with reasonable certainty is that there was at no time any agreement whatever such as was claimed by Local 33, or any custom or practice sufficiently definite to be worthy of the name. The critical terms of the so-called "custom and practice" were in a state of flux and we cannot go further than to say that Local 33 had hopes that some agreement on the terms of the "custom and practice" might finally, some day be made.

Thus, if we have power to decide the case, we must direct a dismissal of the case on the merits, because there is no such "agreement, custom and practice" as was claimed. Moreover, summary judgment would also be required because, even if there were such an "agreement, custom and practice," Local 33 has not exhausted its contractual administrative remedies. In order to treat the subject of jurisdiction with any degree of clarity, however, we must now examine the complaint, catalogue the various motions made by the parties, and examine the reasons for the dismissal below, which was not for lack of jurisdiction, or for...