Detroit Tile & Mosaic Co. v. MASON CONTRACTORS'ASS'N

• Decision Date: 17 April 1931
• Docket Number: No. 5715.,5715.
• Citation: 48 F.2d 729
• Parties: DETROIT TILE & MOSAIC CO. v. MASON CONTRACTORS' ASS'N et al.
• Court: U.S. Court of Appeals — Sixth Circuit

48 F.2d 729 (1931)

DETROIT TILE & MOSAIC CO. v. MASON CONTRACTORS' ASS'N et al.

No. 5715.

Circuit Court of Appeals, Sixth Circuit.

April 17, 1931.

H. E. Smoyer and W. K. Stanley, both of Cleveland, Ohio (Fildew & De Gree, of Detroit, Mich., and Stanley, Horwitz & Kiefer, of Cleveland, Ohio, on the brief), for appellant.

George A. Kelly, of Detroit, Mich. (Groesbeck & Kelly, of Detroit, Mich., on the brief), for appellees.

Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges.

HICKENLOOPER, Circuit Judge.

This case at foundation presents the question of the right of union labor to strike, and to announce its intention to strike wherever the given situation may arise, as a means of compelling the employers of labor to adopt the "closed shop" rule in other, though related, trades. The District Court, after realigning the parties in accordance with what was considered their basic or true interests in the underlying subject of the controversy, dismissed the bill for want of federal jurisdiction; such jurisdiction being finally asserted only upon the ground of diversity of citizenship. The complainant appeals. The jurisdictional question only is presented by the briefs.

The complainant is a corporation under the laws of Delaware, engaged as an open shop or nonunion tile contractor in the city of Detroit. The defendants named were of two general classes: (1) Bricklayers', Masons' and Plasterers' International Union No. 2, and its officers, and Marble Mason, Tile Layer, and Terrazzo Workers' Local Union No. 32, and its officers; and (2) Mason Contractors' Association, and its officers, and Master Masons' Association, and its officers. We shall refer to the second class collectively as the mason associations, and to the two unions as the Bricklayers' Union and the Tile Setters' Union. The mason associations were voluntary associations of general and masonry contractors, by whom contracts for supplying and installing decorative tile were sublet upon competitive bids. Their pecuniary interest undoubtedly lay in keeping this craft upon the open shop basis, and especially in the avoidance of strikes upon jobs for which they held the general or masonry contracts. To the latter end they had, over a long period of years, entered into a series of contracts with the bricklayers' local union fixing the terms and conditions of employment, forbidding strikes, and requiring that all matters of dispute between the individual members of the mason associations and the union should be settled by arbitration. The contract in force at the inception of this litigation was entered into June 19, 1928, as effective from May 1, 1928, to May 1, 1930.

There is some dispute as to whether this last contract forbade strikes, a reservation being appended by the International Union that it was understood that the agreement would not interfere with the right of the local union to obey all laws and rules of the International Union and the mandates of the executive board. We do not, however, consider it necessary to decide this issue, since the question of realignment depends primarily upon the allegations of the bill and the contentions of the complainant, rather than the ultimate decision of the meritorious question.

The complainant's relationship to members of the mason associations had frequently been that of subcontractor, and was analogous, therefore, to that of an employee. The complainant was not a member of, nor otherwise related to, the masons' associations. The bill alleges, and the proofs tend to support the claims, that, at the time of filing its bill, complainant was engaged in the performance of certain contracts theretofore entered into for the installation of decorative tile; that, notwithstanding its contract to the contrary, and out of sympathy for or co-operation with the Tile Setters' Union, the Bricklayers' Union, its officers and members, were conspiring among themselves and with the mason associations to boycott the complainant and destroy its established business; and that unless restrained by order of the court, the mason associations would be coerced, by strikes and threats of strikes, into modifying their agreement with the Bricklayers' Union, so as to permit sympathetic strikes and compel the employment of only union tile setters; and the members of said associations would be coerced into breaches of the contracts upon which complainant was then engaged. The prayer was, in substance, for an injunction against the continuance or enlargement of the alleged boycott, against any abrogation or modification of the contract between the mason associations and the Bricklayers' Union, whereby sympathetic strikes would be permitted or members of the mason associations coerced into breaching their existing contracts with complainant, and generally against all strikes, publications, threats, coercion, and like action, adapted to prevent the letting of contracts to complainant and injure it in the conduct of its business.

Under these circumstances we are of the opinion that the two mason associations were improperly realigned with complainant. The gravaman of the complaint is the maintenance of a secondary boycott and of an unlawful conspiracy or combination to injure complainant in its business. Upon this phase of the case obviously the mason associations are not indispensable parties whether they were or were not shown to be parties to the conspiracy. If parties to the conspiracy, they are properly made defendants. If not parties to the conspiracy, then relief may be granted or refused to complainant without affecting their rights.

Ancillary to relief from the maintenance of this conspiracy and boycott, and as a means to that end, complainant asks an injunction restraining any modification of the agreement between the Bricklayers' Union and the mason associations, or any breach, upon compulsion of the Bricklayers' Union, of the contracts which complainant was then performing. In this aspect of the case the mason associations were proper parties, possibly indispensable parties, but, since it was sought to have the injunction operative against the mason associations, in maintaining the status quo under the contracts, they must be regarded as parties defendant. It is asserted by complainant that a modification of the one contract, or a breach of the others, would constitute an important step in the maintenance, culmination, and effectiveness of the conspiracy, and that the mason associations may be compelled, albeit unwillingly, to lend this assistance to the Bricklayers' Union in the accomplishment of its allegedly unlawful purpose. The substance of this contention is that the mason associations would then become parties to a joint conspiracy. Cf. O'Brien v....