Acmat Corp. v. INTERNATIONAL U. OF OPERATING, ETC.

• Decision Date: 14 December 1977
• Docket Number: Civ. No. H-74-265.
• Citation: 442 F. Supp. 772
• Court: U.S. District Court — District of Connecticut
• Parties: ACMAT CORPORATION v. INTERNATIONAL UNION OF OPERATING ENGINEERS, Operating Engineers Local 478, International Association of Bridge, Structural and Ornamental Iron Workers, and Iron Workers Local 15 and 424.

442 F. Supp. 772

ACMAT CORPORATION v. INTERNATIONAL UNION OF OPERATING ENGINEERS, Operating Engineers Local 478, International Association of Bridge, Structural and Ornamental Iron Workers, and Iron Workers Local 15 and 424.

Civ. No. H-74-265.

United States District Court, D. Connecticut.

December 14, 1977.

COPYRIGHT MATERIAL OMITTED

Robert Frazer, East Hartford, Conn., McNeill Stokes, Herman L. Fussell, Atlanta, Ga., for plaintiff.

Norman Zolot, Hamden, Conn., John A. Arcudi, Bridgeport, Conn., James O'Connor Shea, New Haven, Conn., Victor M. Ferrante, Bridgeport, Conn., for defendants.

RULING ON MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT

BLUMENFELD, District Judge.

Plaintiff began this action on September 3, 1974, seeking injunctive relief and damages against the defendant unions based on allegations that the defendants had caused a work stoppage by striking over a jurisdictional dispute in violation of the terms of the Plan for Settlement of Jurisdictional Disputes. (All of the building and contractors unions and many employers' associations had agreed on behalf of their members to be bound by the "Plan").¹ In addition it claimed a violation by the defendants of § 8(b)(4)(D) of the Act, 29 U.S.C. § 158(b)(4)(D). Jurisdiction was predicated on §§ 301 and 303 of the Labor Management Relations Act, as amended (29 U.S.C. §§ 185, 187). On the basis of an affidavit supporting the complaint, a temporary restraining order was issued the same day, and the court also issued an order to show cause returnable on September 12, 1974.² Because the unions' jurisdictional dispute was resolved before that date and the work was being done, no hearing was held. Although the plaintiff has withdrawn its claim for injunctive relief, it still pursues its claims for damages.

ACMAT is a Connecticut corporation whose business is that of a mechanical construction contractor. It is suing three labor union locals, 478 of the Operating Engineers, 15 and 424 of the Bridge, Structural and Ornamental Iron Workers, and their respective International Unions. The plaintiff seeks damages for its delay in completing a subcontract for a general contractor, delay allegedly caused by the defendants' conduct in holding up its work during a dispute as to who was entitled to it.

All defendants have moved to dismiss the action, and also for summary judgment. These dual motions presented simultaneously result in a merger of the two into the motions for summary judgment here. The parties have presented affidavits in support of both. Rule 12(b), Fed.R.Civ.P. Thus the plaintiff's claim is not to be tested on the "bare bones" of its allegations, cf. Cook & Nichol, Inc. v. Plimsoll Club, 451 F.2d 505 (5th Cir. 1971), to determine whether it "can prove no set of facts in support of its claim which would entitle it to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Rather, the test to be applied is whether on all of the material facts not genuinely in dispute the defendants are entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.; cf. Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317 (2d Cir. 1975). To reach a clearer understanding of the issues thus raised, a description of the circumstances which gave rise to the plaintiff's claim is advisable.

The Situation

The plaintiff, ACMAT Corporation, was the subcontractor for all of the mechanical work to be done in the construction of the Hartford Fire Insurance Company office building in Hartford in the summer of 1974. In the performance of its subcontract, ACMAT required a tower crane to lift mechanical equipment to the roof of the building. To perform that work, it took steps to obtain an operable 140-ton crane at the job site. An unassembled tower crane was leased from Lee Crane Service of Boston. During its assembly and afterwards, this crane was to be operated by two men on Lee Crane's payroll, an "operator" and an "oiler." Assembly of the large crane required the use of a 30-ton "helper" crane, which ACMAT leased along with a separate crew, from S. G. Marino Crane Service of Middletown. ACMAT had subcontracted the job of assembling the large crane to Christie Rigging and Trucking Company of Glastonbury.

By August 19, 1974, the large crane had arrived at the job site in an unassembled condition, on five flat-bed trailer trucks. In anticipation of the assembly job, ACMAT arranged to have the crane assembled by a composite crew of steamfitters and iron workers. It initiated a discussion with the iron workers and the steamfitters through the business agents of their respective local unions. The Iron Workers and Steamfitters representatives acquiesced in ACMAT's assignment of the work, but no representative of the Operating Engineers was a party to this discussion. ACMAT had a collective bargaining agreement with the Steamfitters, but not with the Iron Workers or Operating Engineers. On August 19, members of all three unions were present for the purpose of assembling the crane; but that was not done. A dispute arose among the members of the three craft unions. The Operating Engineers took the position that the assembly should be done by its members and members of the Iron Workers.

On the next day the plaintiff sent a telegram to the Impartial Jurisdictional Disputes Board chairman stating that "the Operating Engineers business agent (Joseph Delaney) refused to allow the crane operator to work if the steamfitters were to participate in assembling the crane. This action by the Operating Engineers has created a work stoppage on the job . . .," and requesting an immediate decision by the Board. It concluded "ACMAT Corporation will abide by the decision of the Board." The same day the chairman of the Board wired to the General President of the International Operating Engineers, with copies to the United Association of Iron Workers, requesting that he direct the local union to return to work immediately.

The Section 301 Claim

Section 301 permits suits for violation of contracts between an employer and a labor organization. 29 U.S.C. § 185(a).³ This court has jurisdiction to determine whether there was such a contract between the plaintiff and defendants, and if so, whether it was breached. See Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241-45, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962); Genesco, Inc. v. Joint Council 13, United Shoe Workers of America, 341 F.2d 482, 484 (2d Cir. 1965); see also Smith v. Evening News Association, 371 U.S. 195, 199-200, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962).

The defendants contend that there was no contract between any of them and the plaintiff. As might be expected, ACMAT argues that such a contract between it and the defendants did exist.

For its claim the plaintiff relies not on one, but on at least three agreements to reach the "no strike" provision which was allegedly breached. The no strike provision is found in Article VII, Sec. 1 of the Plan for Settlement of Jurisdictional Disputes in the Construction Industry:

"During the existence of this Agreement there shall be no strikes or work stoppages arising out of any jurisdictional dispute."

All trade unions who are members of the Building and Construction Trades Department, AFL-CIO, including each of the defendant unions and also the Steamfitters Union, are parties to the Plan. On the employers' side, all of the various trade associations composed of employers in the construction industry, of which ACMAT is one, are also parties to the Plan. Thus, for all employers and unions who signified their consent to be bound by the Plan, it is as if the Plan became incorporated by reference in all collective bargaining agreements between a union and an employer.

However, none of the defendants were parties to any collective bargaining agreement with ACMAT. The plaintiff proposed to overcome this deficiency by invoking an on-site oral agreement between the iron workers and the steamfitters that a composite crew of steamfitters and iron workers would assemble the crane. What is referred to as the on-site arrangement is described in ¶ 9 of the First Count of the Complaint:

"On or about August 19, 1974 Plaintiff assigned the work of assembling and setting of the crane jointly to the Iron Workers Local 15 and 424 and to Steamfitters Local No. 218 of Hartford, Connecticut. Said work was to be done by a crew consisting of equal numbers of members of the Iron Workers Union and the Steamfitters Union. Further, prior to August 19, 1974, the business agents for both the Iron Workers and the Steamfitters acknowledged that they would abide by the assignment on the basis that the work crew would consist of an equal number of steamfitters and iron workers." (Emphasis added).

Though it had no collective bargaining agreement with either the operating engineers or the iron workers, ACMAT argues that both it and the defendants were members of the Plan, and had agreed to be bound by it, and therefore the on-site agreement created an obligation on defendants' part to refrain from striking.

The initial question is whether what is underscored above resulted in a § 301 contract between ACMAT and the defendants. It is difficult to resolve this as a single problem without considering several closely related matters. In considering whether there was a contract, two events which preceded the "on-site" agreement have more than historical interest. In the first place, it appears that ACMAT had a collective bargaining contract with the Steamfitters which contained a provision relevant to this case. Article XVI of ACMAT's contract with the Steamfitters provides in part:

"The unloading, handling, rigging, setting and connecting up of boilers and other vessels shall be the job of the Steamfitters, but when the Employer does not have the specialized rigging equipment for a heavy rigging job and he hires or contracts for such equipment, the Steamfitters shall consist of not less than fifty (50%)

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