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

• Court: California Court of Appeals
• Writing for the Court: SHOEMAKER
• Citation: 233 Cal.App.2d 96,43 Cal.Rptr. 264
• Decision Date: 19 March 1965
• 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.

Page 264

43 Cal.Rptr. 264 233 Cal.App.2d 96, 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. District Court of Appeal, First District, Division 2, California. March 19, 1965.

Page 265

[233 Cal.App.2d 97] 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 [233 Cal.App.2d 98] 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

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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 [233 Cal.App.2d 99] or raise any of the issues or allegations contained in the complaint.

Plaintiff's president filed a declaration...