503 F.2d 1193 (10th Cir. 1974), 73-1880, Pipeliners Local Union No. 798, Tulsa, Okl. v. Ellerd

Docket Nº:73-1880.
Citation:503 F.2d 1193
Party Name:PIPELINERS LOCAL UNION NO. 798, TULSA, OKLAHOMA, and A. Leroy Jones, Plaintiffs-Appellants, v. Fred H. ELLERD, et al, Defendants-Appellees.
Case Date:October 02, 1974
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1193

503 F.2d 1193 (10th Cir. 1974)

PIPELINERS LOCAL UNION NO. 798, TULSA, OKLAHOMA, and A.

Leroy Jones, Plaintiffs-Appellants,

v.

Fred H. ELLERD, et al, Defendants-Appellees.

No. 73-1880.

United States Court of Appeals, Tenth Circuit

October 2, 1974

Argued July 9, 1974.

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Robert A. Hampe, St. Louis, Mo. (Richard L. Daly, St. Louis, Mo., on brief) for appellants.

Jon B. Clarke, Denver, Colo. (David J. Clarke, Denver, Colo., on brief) for appellees.

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Before BREITENSTEIN, McWILLIAMS and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

Pipeliners Local Union #798 (Union), and A. Leroy Jones (Jones), appeal from the judgment of September 24, 1973, awarding Intermountain Equipment Rentals, Inc. (Intermountain) $5,731.83 and costs on its counterclaim.

Intermountain, a Utah corporation qualified to do business in Colorado, submitted its bid to construct 20 miles of natural gas pipeline in San Miguel County, Colorado, for Rocky Mountain Natural Gas Company. Intermountain's stock is owned 90% By W. C. James and 10% By Ralph Pinkham. After Intermountain's bid was accepted, it entered into a 50-50 joint venture agreement with W. C. James and Associates, Inc. (Associates), a Utah corporation qualified to do business in Colorado. Associates' stock is owned 51% By Louis R. Morava and 49% By W. C. James. Under the joint venture agreement, of which Rocky Mountain Natural Gas Company was fully informed, Intermountain was to furnish most of the equipment and Associates was to furnish the financing. The joint venture hired W. C. James as its general project manager. It was to operate under the trade name of Associates. A third corporation, W. C. James, Inc. (James, Inc.), a Nevada corporation, whose stock is owned 100% By W. C. James and his wife, leased some of its equipment to the joint venture. Prior thereto, in August of 1970, James, Inc. had entered into a collective bargaining agreement with Union which expired by its own terms on April 30, 1973. Neither Intermountain or Associates were signators to that or any other collective bargaining agreement with Union.

In April of 1971, Jones, as business agent of Union, contacted W. C. James about the employment of Union welders and welder helpers on the project. The joint venturers declined to employ them. The construction was commenced in May of 1971 with non-Union welding workers. Jones insisted that Union members should be employed on the project. Associates continued to refuse to employ them. On the morning of Saturday, May 29, 1971, Jones came to the project area with some 20 to 26 Union members with the purpose of shutting down the job. Jones and the Union members climbed over a fence and entered a private right-of-way where they shut off equipment or instructed the operators to do so. They threatened Associates' non-Union workers. Jones and the Union members refused to leave the jobsite until finally ordered to do so by the Sheriff of Dolores County, Colorado. All work was necessarily cancelled for

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the balance of that day. Associates felt compelled to hire a deputy sheriff and three night watchmen to patrol the jobsite even though the succeeding day, Sunday, was not a scheduled work day. Jones and Union members appeared at the Jobsite again briefly on Monday morning. Associates lost the permanent services of twelve workers. The project was held up until their replacements could be hired and qualified for their assigned tasks.

The Sheriff of Dolores County testified by deposition that on the morning of May 29th, at the jobsite, Jones told him that he and the Union members had come to shut the job down. He testified that Jones was very belligerent; that he observed three hand guns in a van parked on the highway; that he was told by one of the non-Union workers that Jones and his associates had told them to 'get over here and sit down' or they 'will beat the hell' out of them.

Sheriff Ellerd of San Miguel County testified by deposition that on Monday morning following the Saturday jobsite encounter, he and other officers were escorting non-Union workers to the jobsite when he confronted Jones. Ellerd questioned Jones about a reported rockthrowing incident on Sunday. While Ellerd was frisking Jones, Jones made a quick turn. This alarmed Ellerd who struck Jones on the chin with an open palm.

Appellants Jones and Union contend that when Jones and the Union members went to the jobsite, they did so for the sole purpose of 'visiting' with W. C. James in regard to the collective bargaining agreement the Union had entered into with James, Inc.

Following the events of May 29-31, Associates continued the construction work on the project with non-Union employees. Associates did not pay any fringe benefit contributions to the Union's benefit fund. The project was completed in July, 1971.

On July 6, 1971, the instant suit was filed by Union and Jones against the counties of San Miguel, Montrose and Dolores, Colorado, the three sheriffs of these counties, individually and in their official capacities, together with W. C. James, James, Inc. and Intermountain. The Complaint alleged that the events of May 31, 1971, giving rise to the Civil Rights action, occurred at a time when Jones and the two Union members were parked in a car, off of the jobsite on a public highway, and when they were not interfering with any work activity. They alleged that their rights under the Fourth, Sixth and Fourteenth Amendments to the Constitution of the United States were violated, contrary to the Civil Rights Act, 42 U.S.C.A. 1983 and 1985, to-wit: Unlawful search; use of physical violence and abuse without cause; unlawful search of the automobile; abusive and unwarranted frisking of Jones and the two Union members in his company; violent striking of Jones rendering him unconscious, with further physical abuse of Jones by use of fists, which required medical care, resulting in permanent impairment entitling Jones to award of actual damages of $250,000.00; ordering Jones and his Union companions to get out of the three counties above named, with instructions to deputy sheriffs by Sheriff Ellerd to consider Jones and other members of the Union as 'armed and dangerous' and with instructions to 'shoot to kill'; that after leaving the scene the three sheriffs followed to insure that Jones and companions left the three counties; that on May 29, 1971, W. C. James informed Jones that if he appeared on the jobsite, James would call the police to cause Jones to be thrown in jail. In addition to actual damages sought by Jones, both Jones and Union sought punitive damages of $1,000,000.00 each, against the defendants and each of them.

Intermountain filed an Answer generally denying the allegations of the Complaint and, as an affirmative defense pled that any injuries or damages suffered by plaintiffs were incurred while Jones and the Union members were engaged in a violation of provisions of the

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Colorado Labor Peace Act, C.R.S.1963 Ann., Ch. 80-4-1 through 80-4-22, as amended. In addition, Intermountain counterclaimed, alleging that because of the events of May 29-31, 1971, engendered by the plaintiffs, it had been damaged $14,808.25 for costs involving the protection of laborers and material, the replacement of three operators, five welders, one helper and three laborers who quit their jobs following threats made by plaintiffs, together with the delay and loss of at least two days' production on the project.

During the months of November and December, 1971, the defendants moved for dismissal of the Union's Complaint. Memorandums were filed by the defendants asserting that the Union's Complaint failed to state a cause of action. The Union did not file a memorandum in opposition to the motions. On February 9, 1972, the Court dismissed the Union's Complaint.

On September 26, 1973, pursuant to an oral stipulation made in open court on September 24, 1973, an Order was entered dismissing with prejudice the Complaint of both Union and Jones relating to all claims and against all parties. All parties agreed that the counterclaim of Intermountain survived and that it should be tried to the Court without a jury. Following trial the Court delivered oral findings of fact, conclusions of law and judgment from which this appeal is taken.

Appellants jointly allege Trial Court error in that: (1) it improperly entered its Order on February 9, 1972, granting defendants-appellees Motions to Dismiss Union's complaint on the ground that it failed to state a claim upon which relief could be granted; (2) it admitted into evidence Intermountain's Exhibits I, D, D-1, T-2, T-3, T-4 and S as 'business records' even though they did not qualify as such under the Business Records exception to the Hearsay Rule, and further by reason of Intermountain's failure to establish a proper foundation for their admission; (3) it failed to find a violation of the Colorado Labor Peace Act which is a prerequisite to the entry of judgment on the counterclaim; and (4) it granted damages for a sum of money paid for 'watchmen' which was too remote; improperly permitted W. C. James to estimate the percentage of efficiency lost on the job, which was an unsubstantiated conclusion and opinion; found a 'loss of efficiency' on the jobsite, lacking substantial evidence; and, granted judgment on the counterclaim even though Intermountain failed to meet its burden of proof.

I.

At the threshold we must determine whether the District Court had jurisdiction over Intermountain's counterclaim following dismissal of plaintiffs' Complaint and all claims with prejudice. It is the contention of appellants that the Court was without jurisdiction over the counterclaim in view of the prior voluntary dismissal of the complaint by plaintiffs in that the counterclaim is permissive rather than mandatory in nature. Union and Jones contend that following dismissal of the...

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