Don daRoza, Inc. v. Northern Cal. Dist. Council of Hod Carriers, Bldg. and Const. Laborers of Intern. Hod Carriers, Bldg. and Common Laborers' Union of America

Citation233 Cal.App.2d 96,43 Cal.Rptr. 264
Parties, 51 Lab.Cas. P 19,622 DON daROZA, INC., a corporation, Plaintiff and Appellant, v. NORTHERN CALIFORNIA DISTRICT COUNCIL OF HOD CARRIERS, BUILDING AND CONSTRUCTION LABORERS OF the INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS' UNION OF AMERICA et al., Defendants and Respondents. Civ. 22057.
Decision Date19 March 1965
CourtCalifornia Court of Appeals

Jack Miller, San Francisco, Duncan Davidson, San Francisco, of counsel for appellant.

Law Offices of Charles P. Scully, Charles P. Scully, Donald C. Carroll, San Francisco, for respondent.

SHOEMAKER, Presiding Justice.

Don daRoza, Inc., brought this action to obtain compensatory and punitive damages for breach of a no-strike clause contained in a collective bargaining agreement. The defendants named in the complaint were the Northern California District Council of Hod Carriers, Building and Construction Laborers of the International Hod Carriers, Building and Common Laborers' Union of America (hereafter referred to as 'district union'), certain of its individual officers and agents, and Local 185 of the Northern California District Council of Laborers (hereafter referred to as 'local union').

The first cause of action of the complaint alleged that plaintiff was a member of the Northern and Central California Chapter, The Associated General Contractors of America, Inc. (hereafter referred to as 'contractors' association'); that on June 30, 1959, defendant district union, which was acting as the authorized agent of defendant local union, entered into a collective bargaining agreement with the contractors' association, which was acting as plaintiff's authorized agent; that said agreement contained a no-strike provision to the effect that while the agreement was in force, neither the district nor local union would authorize 'any strike, slowdown, or stoppage of work in any dispute, complaint, or grievance, arising under the terms and conditions of this Agreement'; that said agreement provided for arbitration of any disputes by a Board of Adjustment composed of representatives of the parties and further provided that the arbitrators' decision should be final and binding on the parties, and that 'pending such decision work shall be continued in accordance with the provisions of this Contract'; that on July 21, 1960, plaintiff, in reliance on the collective bargaining agreement, entered into a contract with the State of California to construct a group of buildings for the forestry division; that on August 16, 1960, a dispute arose between plaintiff and defendants district union and local union with respect to a provision of the collective bargaining agreement which related to subsistence pay, and which was subject to the arbitration and no-strike provisions of said agreement; that on August 16, 1960, defendants district union and local union threatened to strike and on August 30, 1960, did strike and picket plaintiff's construction operations; that as a direct result of defendants' violation of the no-strike provision of the collective bargaining agreement, plaintiff's other employees refused to cross the picket line, plaintiff was prevented from performing its contract with the state, and suffered damages in the amount of $46,956.09.

As a second cause of action, plaintiff alleged that the individually named defendants had negotiated the collective bargaining agreement on behalf of defendants district union and local union; that these individual defendants had represented to plaintiff that the no-strike provision of said agreement would be fully complied with, when in fact all the defendants had agreed among themselves that they would not comply with said provision; that plaintiff and its agent, the contractors' association, relied upon these representations and entered into the collective bargaining agreement and the construction contract with the state; that as a direct result of defendants' fraudulent and malicious actions, plaintiff had suffered damages in the amount of $46,956.09, and was also entitled to recover punitive damages in the amount of $200,000.

Defendants demurred to the complaint on the grounds that it failed to state a cause of action; that plaintiff was without legal capacity to sue; that there was a non-joinder of indispensable parties; and that the complaint was ambiguous and unintelligible in certain specified respects.

Defendants also moved for summary judgment on the grounds that the complaint failed to state a cause of action and that plaintiff had failed to exhaust the administrative remedies of the arbitration procedure prior to commencing the action. In support of said motion, defendants filed the affidavit of their attorney setting forth the arbitration provisions of the collective bargaining agreement, and averring that plaintiff had never attempted to utilize the grievance procedure contained in said agreement or to submit the alleged dispute to arbitration. The affidavit further averred that on September 16, 1960, arbitration proceedings were held at defendants' request with regard to various projects which were the subject of a controversy between defendant district union and the contractors' association; that plaintiff was represented at said proceedings, but failed to allege any loss or raise any of the issues or allegations contained in the complaint.

Plaintiff's president filed a declaration in opposition to the motion for summary judgment and therein set forth the arbitration and no-strike provisions of the collective bargaining agreement, and attached as an exhibit a letter from the district union to the contractors' association, demanding subsistence pay and advising that the union would take the steps necessary to enforce this provision of the agreement if the demand was not met. The declaration also stated that the union had never requested arbitration of the dispute over subsistence pay prior to commencing the strike referred to in the complaint; that subsequent to the commencement of said strike, the parties to the collective bargaining agreement undertook arbitration of other questions, but the dispute over subsistence pay was specifically excluded from consideration.

The demurrer and motion for summary judgment were heard by the court, when continued the matter for approximately a month for the purpose of giving the plaintiff the opportunity to submit his dispute embraced by the complaint to arbitration, if he so desired.

At the continued hearing, it was stipulated that plaintiff had made no attempt to bring the matter to arbitration. It was further stipulated that a transcript of certain arbitration proceedings held on September 16, 1960 might be admitted into the record. An examination of the transcript reveals that arbitration proceedings were held before a Board of Adjustment, as provided for in the bargaining agreement. It consisted of two members selected by defendant district union, two members selected by the contractors' association, and a fifth independent member; that at said proceedings, after preliminary statements as to their respective positions by counsel for the contractors' association and the district union, the Board of Adjustment went into executive session, at the conclusion of which the following transpired: 'THE FIFTH MEMBER: * * * I want to make it clear for the record that in what I am going to refer to as the Da Roza Job No. 2, the Board of Adjustment does not, until the stipulation is agreed to, have jurisdiction over the grievance on that job. Nevertheless, for reasons discussed before the Board and by counsel, the Board desires to make the following suggestions to the parties and to ask them whether they will agree. These suggestions are as follows: 1. That the job be resumed as soon as possible and practicable. 2. That the grievance be referred to this Board of Adjustment, to be heard by the Board of Adjustment, which will of course render a decision on the issue involved in that case. 3. That in view of the fact that timely notice was filed, if an Award is made in favor of the Union's position, it be retroactive to the first day that a laborer was hired on the job. 4. That the Da Roza Job No. 2 be heard first; that the other cases thereafter be heard by the Board of Adjustment; that the question of retroactivity as to those jobs, will be placed in issue by the parties. 5. That further as to the Da Roza Job No. 2, the Chapter and the Employer will...

To continue reading

Request your trial
5 cases
  • Thornton v. Victor Meat Co.
    • United States
    • California Court of Appeals
    • March 27, 1968
    ...595 of Dist. No. 152, etc. v. Howe Sound Co., (Inc.) (3 Cir. 1965) 350 F.2d 508, 511; Don daRoza, Inc. v. Northern Cal., etc., Hod Carriers, etc., Union (1965) 233 Cal.App.2d 96, 103, 43 Cal.Rptr. 264; Cone v. Union Oil Co. (1954) 129 Cal.App.2d 558, 563--564, 277 P.2d 464; and see Vaca v. ......
  • Charles J. Rounds Co. v. Joint Council of Teamsters No. 4
    • United States
    • United States State Supreme Court (California)
    • May 24, 1971
    ...clause) * * * if the parties so intended.' (370 U.S. 254, 259, 82 S.Ct. 1346, 1349; see also Don daRoza, Inc. v. Northern Cal. etc. Hod Carriers Union (1965) 233 Cal.App.2d 96, 43 Cal.Rptr. 264.) Plaintiff relies upon McCarroll v. L.A. County etc. Carpenters, 49 Cal.2d 45, 66--68, 315 P.2d ......
  • Broughton v. Cigna Healthplans, B093517
    • United States
    • California Court of Appeals
    • June 30, 1998
    ...v. Nunn (1996) 50 Cal.App.4th 1357, 58 Cal.Rptr.2d 294.) Finally, the Association cites Don daRoza, Inc. v. Northern Cal. etc. Hod Carriers Union (1965) 233 Cal.App.2d 96, 43 Cal.Rptr. 264. That was an action for damages, not injunctive relief.6 Code of Civil Procedure section 1281.8 provid......
  • Charles J. Rounds Co. v. Joint Council of Teamsters No. 42
    • United States
    • California Court of Appeals
    • June 16, 1970
    ...v. Local 50, American Bakery & C.W.I. (1961) 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474, and Don da Roza, Inc. v. Northern Cal. etc. Hod Carriers Union, 233 Cal.App.2d 96, 43 Cal.Rptr. 264, both of which involved broadly worded arbitration provisions which were held to encompass disputes in......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT