Limbach Co. v. Sheet Metal Workers Intern. Ass'n
| Decision Date | 19 July 1991 |
| Docket Number | No. 108,90-3606,AFL-CIO and S,No. 12,Nos. 90-3639,No. 17,S,A,12,17,108,s. 90-3639 |
| Citation | 949 F.2d 1211 |
| Parties | 137 L.R.R.M. (BNA) 2792, 60 USLW 2084, 119 Lab.Cas. P 10,831, 1991-2 Trade Cases P 69,565 LIMBACH COMPANY, Appellant in 90-3639, v. SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, Sheet Metal Workers International Association Local Unionheet Metal Workers International Association, Local Unionheet Metal Workers International Local Union, and Edward J. Carlough, Sheet Metal Workers International Association Local # 98. LIMBACH COMPANY v. SHEET METAL WORKERS INTERNATIONAL ASSOCIATION,heet Metal Workers International Association, Local Union, Appellants in 90-3606. |
| Court | U.S. Court of Appeals — Third Circuit |
Robert A. King (argued), P. Jerome Richey, Buchanan Ingersoll, Professional Corp., Pittsburgh, Pa., for Limbach Co.
Donald W. Fisher, Toledo, Ohio, Judith Rivlin, Washington, D.C., for Sheet Metal Workers' Intern. Ass'n, AFL-CIO.
Marsha S. Berzon, Laurence Gold (argued), Washington, D.C., of counsel with Sheet Metal Workers' Intern. Ass'n and Local Union No. 108.
Before SLOVITER, Chief Judge, and GREENBERG and WISDOM, * Circuit Judges.
Limbach Company (Limbach) is a mechanical contracting company with principal offices in Pittsburgh, Pennsylvania, and additional offices in Woburn, Massachusetts (Boston), Compton, California (Los Angeles), Pontiac, Michigan (Detroit), and Columbus, Ohio.
Prior to the events underlying this case, Limbach was a union contractor and was a member of a multi-employer bargaining association in each of the metropolitan areas where it operates. The Pittsburgh, Detroit and Los Angeles offices were represented by the local chapters of the Sheet Metal and Air Conditioning Contractors National Association (SMACNA), while the Boston office was covered by the Sheet Metal and Air Conditioning Contractors Association of the Building Trades Employers Association (BTEA). Through its membership in these bargaining organizations, Limbach had a collective bargaining relationship with the sheet metal workers' union--Local No. 12 in Pittsburgh, Local No. 17 in Boston, Local No. 80 in Detroit, Local No. 98 in Columbus, and Local No. 108 in Los Angeles.
In 1982-83, Limbach was reorganized and became a wholly-owned subsidiary of Limbach Constructors, Inc. and, as part of this reorganization, Jovis Construction, Inc. was formed as a sister-company to Limbach Company. A purpose of the reorganization and the formation of Jovis was so that the Limbach organization could acquire nonunion operations in new geographic areas. Thus, in July 1983, Jovis purchased Harper Plumbing & Heating Company, Inc. in Florida. Harper had been a nonunion contractor for 30 years and, after its acquisition by Jovis, continued to be nonunion.
After Edward Carlough, the General President of the International Union, learned of this acquisition, he wrote a letter on August 10, 1983, to Walter Limbach, the president of Limbach until 1983, and the president of Limbach Constructors, Inc. from 1983 to 1988, stating:
I want to congratulate you on your company's takeover of Harper Plumbing and Heating in Orlando, Florida. We have been attempting to organize this contractor for a good number of years, and it was very thoughtful of you to have us organize this firm through your purchase of it.
The letter suggested a meeting between Lonnie Bassett, the International's Director In October 1983, Cassidy and Walter Limbach met at Limbach's Pittsburgh office. Cassidy told Walter Limbach that Carlough expected Limbach to have Harper sign a collective bargaining agreement with a union affiliate and stated that the Harper nonunion operation violated existing collective bargaining agreements between Limbach and Locals 12, 17, 80, 98 and 108.
of Organization, or Larry Cassidy, Carlough's assistant, to "consummate a labor agreement with your new shop." Walter Limbach gave this letter to Charles Prey, his successor as President of Limbach, who wrote to Carlough informing him that Limbach had not acquired Harper
Walter Limbach disagreed with Cassidy's characterization of the situation, maintaining that Jovis, not Limbach, had acquired Harper, that Harper was a separate employer from Limbach and that Limbach had no authority over Harper labor relations matters. Cassidy told Walter Limbach that if Harper did not sign a labor agreement, contract violation grievances would be filed and if they did not result in Harper's unionizing, Limbach would face serious labor problems.
Carlough, Cassidy and Walter Limbach met on November 23, 1983, to discuss the Harper situation. Carlough asserted that Limbach was in violation of its local collective bargaining agreements by virtue of the Harper operation and he told Walter Limbach that the Union would file grievances alleging these violations. Walter Limbach maintained his position that Limbach and Harper were separate and that Limbach had no authority to sign a collective bargaining agreement on behalf of Harper. Carlough told Walter Limbach that if the situation were not resolved, the locals would disclaim interest in representing Limbach employees upon the expiration of their existing collective bargaining agreements.
The local unions filed grievances in the summer of 1984, alleging that Limbach was in violation of its collective bargaining agreements with them by virtue of its sister-relationship with Harper. The grievances of Locals 12, 17 and 108 ultimately came before the National Joint Adjustment Board for the Sheet Metal Industry (NJAB), the final decision maker under the collective bargaining agreements, a board composed of an equal number of union and employer representatives.
The unions' grievances alleged that the operation of Harper on a nonunion basis was a breach of the Standard Form of Union Agreement (SFUA), negotiated by the International Union and SMACNA. The agreement serves as a model for local collective bargaining agreements. It was the unions' belief that the SFUA prohibited double-breasting, meaning that a company owns both union and nonunion shops. Carlough believed he could force Harper to recognize the union through the grievance process by claiming that Limbach was in violation of its agreements through its affiliation with Harper. On February 8, 1985, the NJAB issued its decision on the grievances but, as it deadlocked, it did not find that Limbach had violated any of the SFUA provisions of its bargaining agreements. It did, however, find that the agreement between Limbach and Local 17 was not valid and binding and was of no force or effect.
Faced with the failure of the grievances against Limbach, Carlough met with the International Union's General Executive Council to develop an alternate method to combat double-breasting and this led to the development of the so-called "Integrity Clause." 1 The Integrity Clause obligated On April 14, 1985, the Executive Committee of SMACNA and some of its other personnel met in Washington, D.C. to consider the Integrity Clause and on the following day Carlough met with the Executive Committee in Washington. SMACNA was particularly concerned about the Integrity Clause and its meaning, as it had put the sheet metal industry, in the words of a SMACNA officer, "in an uproar" and SMACNA had received numerous inquiries about it. Carlough spoke to the Committee about the clause.
an employer to notify the union if it became affiliated through common ownership with a nonunion shop and gave local unions the power to rescind their labor agreements upon an employer's becoming so affiliated. In a letter dated March 22, 1985, Carlough instructed the local unions to have the Integrity Clause negotiated into their local agreements as soon as possible
In an April 16, 1985, memo to Carlough, Russell Smith, SMACNA's Director of Labor Relations, referring to the meeting of April 15, stated in relevant part:
[i]t is our understanding that the following items were discussed and agreed upon at the above meeting:
1. That the 'Integrity Clause' is a permissive subject of collective bargaining.
* * * * * *
6. That local unions would not furnish union members to double-breasted union general contractors or others if union sheet metal contractors had been bidders on a job.
7. That SMWIA and its local unions would cooperate to see that union members would not work for non-union contractors and would not 'moonlight' to the detriment of union contractors.
App. at 2793-94. [Emphasis added].
At the same time, the International attempted to dissuade union members from working for double-breasting contractors, including Limbach, doing this with written appeals promoting union loyalty and changes in withdrawal card rights and pension benefits for members who continued working for companies affiliated with nonunion operations.
In the spring and summer of 1986, Locals 12, 17 and 108 did not renew the collective bargaining agreements as they expired and the locals issued disclaimers terminating their representation of Limbach The Integrity Clause was ultimately incorporated into a number of collective bargaining agreements. In the summer of 1986, Carlough spoke at the convention of Sheet Metal Workers' International Association. He...
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