954 F.2d 69 (2nd Cir. 1992), 1490, 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

• Docket Number: Docket 91-7153.,1490
• Citation: 954 F.2d 69
• Date: 14 January 1992
• Parties: DRYWALL TAPERS AND POINTERS OF GREATER NEW YORK, LOCAL 1974 OF I.B.P.A.T., AFL-CIO, on its own behalf and on behalf of all persons who are or at any time since March 1, 1978 have been members thereof; John Alfarone, as President and Daniel Jones, a Treasurer of Drywall Tapers and Pointers of Greater New York, Local 1974 of I.B.P.A.T., AFL-CIO, Plai
• Court: U.S. Court of Appeals — Second Circuit

Page 69

954 F.2d 69 (2nd Cir. 1992)

DRYWALL TAPERS AND POINTERS OF GREATER NEW YORK, LOCAL 1974

OF I.B.P.A.T., AFL-CIO, on its own behalf and on behalf of

all persons who are or at any time since March 1, 1978 have

been members thereof; John Alfarone, as President and

Daniel Jones, a Treasurer of Drywall Tapers and Pointers of

Greater New York, Local 1974 of I.B.P.A.T., AFL-CIO,

Plaintiffs-Appellees,

v.

LOCAL 530 OF OPERATIVE PLASTERERS AND CEMENT MASONS

INTERNATIONAL ASSOCIATION; Louis D. Moscatiello, as

President of Local 530 of Operative Plasterers and Cement

Masons International Association, Defendants,

Local 530 of Operative Plasterers and Cement Masons

International Association, Defendant-Appellant.

No. 1490, Docket 91-7153.

United States Court of Appeals, Second Circuit

January 14, 1992

Argued May 22, 1991.

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Brian E. Maas, New York City (Beldock, Levine & Hoffman, of counsel), for defendant-appellant.

Burton H. Hall, New York City (Hall & Sloan, of counsel), for plaintiffs-appellees.

Before KEARSE, MAHONEY and SNEED ^[*], Circuit Judges.

Defendant-appellant union local appeals from an order of the United States District Court for the Eastern District of New York, Eugene H. Nickerson, Judge, entered December 26, 1990 that preliminarily enjoined the local from causing or permitting its members to perform drywall taping and pointing work in New York City except at job sites where the owner of the site requires that the entire drywall surface be "skimcoat[ed], as a matter of course, ... in order to eliminate shadowing and color or sheen variations."

Affirmed.

MAHONEY, Circuit Judge:

Defendant-appellant Local 530 of Operative Plasterers and Cement Masons International Association ("Local 530") appeals from an order of the United States District Court for the Eastern District of New York, Eugene H. Nickerson, Judge, entered December 26, 1990 that preliminarily enjoined Local 530 from causing or permitting its members to perform drywall taping and pointing work ¹ in New York City except at job sites where the owner of the site requires that the entire drywall surface be "skimcoat[ed], as a matter of course, ... in order to eliminate shadowing and color or sheen variations."

We affirm.

Background

In 1981, plaintiffs-appellees, Drywall Tapers and Pointers of Greater New York, Local 1974 of I.B.P.A.T., AFL-CIO, its president and treasurer (collectively "Local 1974"), initiated this action, seeking to enjoin Local 530 from, inter alia, "perform[ing] drywall taping work on surfaces that are not to receive plaster, acoustical or imitation acoustical finishes."

The parent international unions of both Local 530 and Local 1974 are member unions of the AFL-CIO, and of its Building and Construction Trades Department (the "Department"). The Department's constitution gives it the power to resolve jurisdictional disputes between member unions and

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their locals. The Department, by agreement with employer associations, established a "Plan of Settlement of Jurisdictional Disputes in the Construction Industry" (the "National Plan"), which is binding upon all members, and administered by the Joint Administrative Committee (the "JAC"), of the Department.

Under the National Plan, jurisdictional disputes are investigated by the "Impartial Jurisdictional Disputes Board" (the "Board"). If, however, a local plan for jurisdictional dispute settlement exists, that plan governs jurisdictional disputes in that locality in the first instance, subject to appeal to the Board. The National Plan further provides that a special Hearings Panel shall be appointed to render a final "national decision which shall be binding on all unions," if: (1) the JAC declares a dispute to be repetitive in nature and the affected national or international unions cannot reach an agreement; (2) a party wishes to appeal a decision of the Board; or (3) the Board refers a dispute for national decision. Such panels are composed of two disinterested union general presidents, two employer representatives, and an impartial umpire selected by the JAC.

The pertinent local plan, the New York Plan for the Settlement of Jurisdictional Disputes (the "New York Plan"), was adopted by agreement between the Building and Construction Trades Council of Greater New York (the "Trades Council"), of which both locals are members, and the Building Trades Employers' Association of the City of New York (the "Employers' Association"). The New York Plan calls initially for mediation of jurisdictional disputes by a representative of both the Trades Council and the Employers' Association. If mediation fails to resolve the dispute, it is then subject to arbitration, at the request of any party thereto, by the executive committee of the Employers' Association (the "Executive Committee").

The New York Plan also provides that, in resolving jurisdictional disputes, the Executive Committee will recognize "all bonafide decisions and agreements" between international unions, and that the Executive Committee's awards will be published in the Employers' Association handbook, "and shall thereafter govern the awarding of the work of the kind in question on all future jobs." It further specifies that arbitration awards by the Executive Committee can be appealed to the Board, in accordance with the National Plan, within seven days, and that a request for a rehearing based upon new evidence can be made to the Executive Committee within two weeks of the award. Otherwise, decisions of the Executive Committee are final and "shall be enforced by the ... Trades Council."

In 1975, in the course of prior litigation between these unions, the district court directed the parties to petition the JAC to seek referral of their jurisdictional dispute to a Hearings Panel, pursuant to the National Plan. See Drywall Tapers & Pointers, Local 1974 v. Operative Plasterers' & Cement Masons' Int'l Ass'n, 601 F.2d 675, 677 (2d Cir.1979), cert. denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 755 (1980). ² On March 1, 1978, a Hearings Panel ruled that drywall pointing and taping is painters' work, i.e., Local 1974's work, unless done on surfaces that are to receive plaster, acoustical, or imitation acoustical finishes, in which case it is plasterers' work, i.e., Local 530's work. The crucial portion of the Hearings Panel decision (the "Panel Decision") is paragraph 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.

The Panel Decision was accepted and affirmed by this court. See Drywall Tapers & Pointers, 601 F.2d at 679.

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In 1980, Local 1974 challenged Local 530's right to perform drywall work for a company denominated "Ebasco" at the World Trade Center. In accordance with the New York Plan, the Executive Committee conducted an arbitration hearing. The issue was whether Local 530 was doing just pointing and taping, i.e., work that belonged to Local 1974, or was doing additional work that would bring the job within the province of Local 530 pursuant to paragraph 3 of the Panel Decision. "There was evidence at the hearing," the district court later explained, "that [Local 530] workers at the jobsites had watered down joint compound and spread it over the drywall surface using rollers. The joint compound was a premixed taping compound, not plaster based. The workers coated the drywalls with the diluted compound even though the work was not required by the general contractor's specifications."

The Executive Committee decided the Ebasco case in favor of Local 1974 (the "Ebasco Decision"), ruling that "the material applied [by Local 530 members] is not applied for the purpose of producing a uniform surface compatible with the pointed and taped joints," as required by paragraph 3 of the Panel Decision. The Ebasco Decision was published in the Employers' Association handbook. Because Local 530 did not appeal the Ebasco Decision to the Board or request a rehearing, it became, in accordance with the New York Plan, a final decision governing "the awarding of the work of the kind in question on all future jobs."

In accordance with the New York Plan, Local 1974 attempted to have the Trades Council enforce the Ebasco Decision both at the Ebasco jobsite and, on the theory that drywall finishing work generally was work "of the kind" performed for Ebasco, at other jobsites. These efforts proved fruitless, despite the Trades Council's clear obligation, under the New York Plan, to enforce the Ebasco Decision. Accordingly, on February 4, 1981, Local 1974 brought this suit, pursuant to 29 U.S.C. § 185(a) (1988), to compel adherence by Local 530 to the Panel Decision and the Ebasco Decision.

On May 26, 1981, the district court determined that "Local 1974 is only entitled to an order enjoining Local 530 from asserting jurisdiction over certain drywall taping and pointing work at the Ebasco site. Local 1974 may not have an injunction against Local 530 as to [work at other jobsites.]" The district court refused to issue an injunction as to locations other than Ebasco (even though the Ebasco job had been concluded), reasoning that the organs of the New York Plan were best suited to determine whether Local 530 was engaged at any particular job in "work of the kind" performed for Ebasco. Accordingly, the court also

requir[ed] the parties to submit to the organs of the New York Plan for determination the issue as to whether the work at other jobsites is "of the kind" subject to the [Ebasco] award. The court will retain jurisdiction to enforce compliance, if need be, with any final...