Drywall Tapers and Pointers of Greater New York, Local 1974 of I.B.P.A.T. AFL-CIO v. Local 530 of Operative Plasterers and Cement Masons Intern. Ass'n, AFL-CIO
| Citation | 889 F.2d 389 |
| Decision Date | 01 March 1978 |
| Docket Number | AFL-CIO |
| Parties | 132 L.R.R.M. (BNA) 2805, 113 Lab.Cas. P 11,654 DRYWALL TAPERS AND POINTERS OF GREATER NEW YORK, LOCAL 1974 OF I.B.P.A.T., on its own behalf and on behalf of all persons who are or at any time since |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Richard Guay, Montclare & Guay, New York City, for defendant-appellant, cross-appellee Louis Moscatiello.
Robert M. Ziskin, Commack, N.Y., for appellants, cross-appellees B-Drywall Finishers and Joseph Ianno.
Robert I. Lesser, McDonough, Marcus, Cohn & Tretter, P.C., New York City, for appellants, cross-appellees Woodworks Const. Co. and Harold Heustein.
Brian E. Maas, Rosenblatt, Maas, Wirfel & Stolz, P.C., New York City, for defendant, cross-appellee Local 530 Operative Plasterers and Cement Masons Intern. Ass'n.
Mark A. Jacoby, Weil, Gotshal and Manges, New York City, for appellants, cross-appellees Improved Drywall and Robert Vergara.
Harvey Stone, Schlam, Stone and Dolan, New York City, for appellant, cross-appellee Robert E. Goldman.
Burton J. Hall, Hall & Sloan, New York City, for plaintiffs-appellees, cross-appellants Drywall Tapers, et al.
Before CARDAMONE, MAHONEY, Circuit Judges, and POLLACK, District Judge. *
Statement
Nine contemnors--defendant Local 530 and eight non-parties--appeal from a judgment finding them in civil contempt for willful violation of the Court's injunctive orders, and awarding damages and costs to plaintiffs. The contemnors, who are appellants here, are Local 530 itself, its President/Secretary-Treasurer, Louis Moscatiello, its sometime attorney Robert E. Goldman, Esq., and three employers: Improved Drywall and its owner, Robert Vergara; "B-Drywall" and its owner (a sometimes employee of Improved), Joseph Ianno; and Woodworks Construction and its owner, Harold Heustein.
The contempt proceedings adjudicated below on these appeals are part of an action between Local 1974, a member union of the International Brotherhood of Painters and Affiliated Trades, and Local 530, a member union of the Operative Plasterers and Cement Masons International. The underlying action is itself one part of an historical rivalry between these two construction trades over the representation of workers engaged in the preparation of drywall for painting and wallpapering. During the 1970's, this rivalry was extended to a dispute as to union jurisdiction over a newly developed technique for preparing drywall whereby the entire drywall surface was skim-coated with a diluted solution of the taping and pointing compound. In 1977, the Building Trades Department of the AFL-CIO appointed a National Hearings Panel to determine the allocation of jurisdiction between the two trades. By decision effective March 31, 1978, binding on both trades, the National Hearings Panel awarded jurisdiction as follows:
(1) All pointing and taping, regardless of the material used, is painters' work, provided the drywall surfaces are not to receive plaster, acoustical, or imitation acoustical finishes.
(2) Pointing and taping, regardless of material used, of drywall surfaces which are to receive plaster, acoustical or imitation acoustical finishes shall be the work of plasterers.
(3) The surface produced by the application of the same plaster pointing material as used in the pointing and taping of the joints to the entire drywall surface for the purpose of producing a uniform surface compatible with the pointed and taped joints shall be considered a plaster finish, and the pointing and taping in connection therewith shall be the work of plasterers.
See Drywall Tapers & Pointers v. Operative Plasterers' and Cement Masons' Int'l Ass'n., 601 F.2d 675 (2d Cir.1979) cert. denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 755 (1980).
In a local arbitration proceeding before the Building Trades Employers Association, (the body to which resort is required in the first instance), charging that Local 530 was performing work that belonged to Local 1974, an award on June 24, 1980, found that the work belonged to Local 1974 and not to Local 530:
since the material applied is not applied for the purpose of producing a uniform surface compatible with the pointed and taped joints.
However, Local 530 continued to perform work in violation of the arbitration award. Local 1974 therefore brought this suit to enforce that arbitration decision.
Local 1974 commenced the underlying lawsuit in 1981 seeking a permanent injunction barring Local 530 from violating contracts and arbitration awards by causing its members to perform drywall taping and pointing work, in New York City, that was and had been the work jurisdiction of Local 1974 under such contracts and arbitration awards. After three unsuccessful attempts at obtaining a preliminary injunction, Local 1974 then brought another motion for a preliminary injunction restraining Local 530 from exercising jurisdiction over any sites in New York. The District Court had refused relief pending a reference of the jurisdictional complaints to the Building and Construction Trades Council of Greater New York ("BCTC"), the industry body entrusted with responsibility for resolving such complaints. BCTC made an award in favor of Local 1974.
On January 9, 1984, the District Court issued a preliminary injunction limited to those sites specifically covered by the award. The preliminary injunction ordered:
that defendant Local 530 ... its officers, agents, servants, employees and attorneys, and all persons in active concert or participation with any of them who receive actual notice of this Order ... be and they hereby are enjoined and restrained from asserting jurisdiction over, and from causing or permitting members of such labor union to perform work at, any of the following job sites.... [list of job sites omitted]
The District Court then held an evidentiary hearing on Local 1974's motion for a permanent injunction, and on February 2, 1984, issued a permanent injunction, again limited to those sites covered by the BCTC award and otherwise identical to the language of the preliminary injunction.
Local 530 appealed from the permanent injunctive order on February 9, 1984. By order, without formal opinion, this Court unanimously affirmed the permanent injunction on April 13, 1984.
When the preliminary injunction was entered, drywall work was being performed at 29 affected sites pursuant to collective bargaining agreements between contractors and Local 530. Local 530 then sent a letter to its members and to contractors notifying them of the injunction, advising them that Local 530 would no longer exercise jurisdiction at the sites, and instructing its members to comply with the injunction.
At the time of the injunction, Local 530 had approximately 300 members working at various sites in New York, including the 32 covered by the preliminary injunction. After the permanent injunction was entered, Local 530 contractors continued to assign Local 530 members to worksites and continued to remit dues check-offs and fringe benefit payments to the union's welfare fund. Local 530 continued to collect dues check-offs or fringe benefit payments relating to drywall work at the prohibited sites and acted constructively as a representative of any workers at those sites.
On February 14, 1984, Local 1974 moved by order to show cause to have Local 530 and four contractors held in contempt for violating the injunctions. Local 530's President, Mr. Moscatiello, was not named as a party to this contempt proceeding. This motion, based on observations made by Local 1974 officials at prohibited sites, alleged that workers known to have been members of Local 530 had been observed working at three of the prohibited sites and that Local 530 was, therefore, still asserting jurisdiction over the sites.
It was represented to the court on the motion that the men supposedly working under the aegis of Local 530 had decided not to remain unemployed and had gone to other unions and were working on those jobs as members of other unions but that Local 530 had nothing to do with past participation in any way whatsoever. The lawyer for Local 530 opened by advising the court that, as to the men observed by Local 1974, "... these men are not working as 530 members."
On those representations, plaintiffs were advised that the Court would not find Local 530 or the employers in contempt on a record that failed to show that the employees had remained members of Local 530. The Court observed that "maybe, [defendants] are playing games here, I don't know whether they are, and if they are, they are going to find it wasn't profitable for them to play games...."
The contempt motion was denied and Local 1974 was directed to conduct further discovery.
By motion dated June 24, 1985, by which time all of the prohibited jobs were completed, Local 1974 renewed its...
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