Johnson Builders, Inc. v. UNITED BRO. OF C. & J., LOC. U. NO. 1095

Decision Date03 March 1970
Docket Number472-69.,No. 250-69,471-69,250-69
Citation422 F.2d 137
PartiesJOHNSON BUILDERS, INC., Plaintiff-Appellant, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS, LOCAL UNION NO. 1095, AFL-CIO, et al., Defendants-Appellees. JOHNSON BUILDERS, INC., Plaintiff-Appellant, v. BRICKLAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION OF AMERICA, LOCAL 14, AFL-CIO, et al., Defendants-Appellees. JOHNSON BUILDERS, INC., Plaintiff-Appellant, v. CONSTRUCTION & GENERAL LABORERS, LOCAL UNION NO. 685, AFLCIO, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

William G. Haynes, Topeka, Kan. (Lillard, Eidson, Lewis & Porter, Topeka, Kan., on the brief), for appellant.

James L. Rose, Topeka, Kan. (George E. McCullough, W. L. Parker, Jr., Robert B. Wareheim, and Reginald LaBunker, Topeka, Kan., on the brief), for appellees.

Before BREITENSTEIN and HOLLOWAY, Circuit Judges, and CHRISTENSEN, District Judge.

BREITENSTEIN, Circuit Judge.

Plaintiff-appellant, Johnson Builders, Inc., filed three separate actions in Kansas state court, one against United Brotherhood of Carpenters and Joiners, Local Union No. 1095, AFL-CIO (Carpenters), the second against Bricklayers, Masons and Plasterers International Union of America, Local 14, AFL-CIO (Bricklayers), and the third against Construction & General Laborers, Local Union No. 685, AFL-CIO (Laborers). Each asserted violations of a collective bargaining agreement and sought injunctive relief, damages, and specific performance. Each was removed to the United States District Court for the District of Kansas on the ground that it had jurisdiction under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Motions to remand were denied. After trial to the court, judgments were entered in favor of the defendants and the plaintiff appeals.

A procedural matter should first be mentioned. In the district court there were three separate and distinct actions. They were heard as one without any order of consolidation. The appeals have been presented on a joint record and joint briefs. The practice has become all too common. See e. g. In re Cummings, 10 Cir., 413 F.2d 1281, and Lonnquist v. J. C. Penney Company, 10 Cir., 421 F.2d 597. We suggest that in the interest of orderly procedure consolidation should precede joint consideration of the cases on the merits. Otherwise, we may be confounded with issues which are superficially similar but are asserted to be basically distinguishable. In the cases before us, no significant differences appear and all parties have acquiesced in the procedure followed. We will accept the pattern but in so doing we note our disapproval. If a district court is to try and to decide separate and distinct actions as one, an appropriate order of consolidation should be made.

Johnson Builders (the Company) was the prime contractor on two construction projects in Salina, Kansas, one the City-County Building and the other the Pepsi-Cola warehouse. As a member of the Salina Builders Association the Company was a party to collective bargaining contracts between the Association and the three Unions involved here. The contracts provided that there would be neither work stoppages nor lockouts and that disputes would be handled through grievance procedures culminating in binding arbitration.1

On August 15, 1968, a stranger union, the Hoisting Engineers, set up pickets at the City-County project. The carpenters, bricklayers, and laborers refused to cross the picket line and stopped work. The project was shut down until November 1, when the picket line was discontinued after a decision by the National Labor Relations Board that it was an unfair labor practice. The men then returned to work.

Another stranger union, the Teamsters, set up a picket line at the City-County site on November 8. Again the work came to a stop. On the same day the Company wrote each of the three Unions covered by its contracts and demanded that they get the men back to work. On November 12 the Company brought suit against the Carpenters in state court and on the following day filed similar actions against the Bricklayers and Laborers. Each suit sought an injunction, specific performance of the no-strike agreement, and damages. The state court issued temporary restraining orders requiring compliance with the contracts.

After removal, the Unions moved for an injunction against further proceedings in the Kansas court and the Company moved to remand that part of the action which pertained to the claim for an injunction against the Unions' violation of the Right-To-Work Amendment to the Kansas Constitution. Kan.Const. Art. 15, § 12. The federal court denied the remand and granted the injunction staying the state proceedings.

The inclusion in a collective bargaining contract of a provision for arbitration is a "major factor in achieving industrial peace." United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578, 80 S. Ct. 1347, 1350, 4 L.Ed.2d 1409. When by the terms of a pertinent collective bargaining contract a claimed breach of contract creates an arbitrable dispute, the parties must submit that dispute to an arbitrator rather than to a court. Legal action may be brought under § 301 to compel an unwilling party to arbitrate, Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 458, 77 S.Ct. 912, 1 L.Ed.2d 972, or to require specific performance of an arbitration award, United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424. When a party claims that it is not contractually bound to arbitrate a dispute and may therefore sue directly under § 301, the issue of arbitrability is to be determined by the courts because no party has to arbitrate a dispute unless it has consented thereto. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 8 L.Ed.2d 462, and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) and its Amalgamated Local Union 256 v. Folding Carrier Corporation, 10 Cir., 422 F.2d 47.

The first problem is whether we have an arbitrable dispute. Any uncertainties in this regard are to be resolved in favor of arbitration. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 14 L.Ed.2d 1409; see also Brotherhood of Locomotive Firemen and Enginemen, Lodge 844 v. Kennecott Copper Corporation, 10 Cir., 338 F.2d 224, 226. We believe that the answer is controlled by Drake Bakeries Incorporated v. Local 50, American Bakery & Confectionary Workers International, AFLCIO, 370 U.S. 254, 82 S.Ct. 1346, 8 L. Ed.2d...

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