Drywall Tapers and Pointers of Greater New York, Local 1974 v. Operative Plasterers' and Cement Masons' Intern. Ass'n of U.S. and Canada, 1075

• Decision Date: 18 August 1976
• Docket Number: No. 1075,D,1075
• Citation: 537 F.2d 669
• Parties: 92 L.R.R.M. (BNA) 3203, 93 L.R.R.M. (BNA) 2875, 46 A.L.R.Fed. 377, 78 Lab.Cas. P 11,478, 79 Lab.Cas. P 11,641 DRYWALL TAPERS AND POINTERS OF GREATER NEW YORK, LOCAL 1974, et al., Plaintiffs-Appellees, v. OPERATIVE PLASTERERS' AND CEMENT MASONS' INTERNATIONAL ASSOCIATION OF the UNITED STATES AND CANADA et al., Defendants-Appellants. ocket 76--7108.
• Court: U.S. Court of Appeals — Second Circuit

Page 669

537 F.2d 669

92 L.R.R.M. (BNA) 3203, 93 L.R.R.M. (BNA) 2875,

46 A.L.R.Fed. 377, 78 Lab.Cas. P 11,478,

79 Lab.Cas. P 11,641

DRYWALL TAPERS AND POINTERS OF GREATER NEW YORK, LOCAL 1974 et al., Plaintiffs-Appellees, v. OPERATIVE PLASTERERS' AND CEMENT MASONS' INTERNATIONAL ASSOCIATION OF the UNITED STATES AND CANADA et al., Defendants-Appellants.

No. 1075, Docket 76--7108.

United States Court of Appeals Second Circuit.

Argued April 28, 1976.

Decided June 18, 1976.

As Amended Aug. 18, 1976.

Glenn V. Whitaker, Washington, D.C. (Donald J. Capuano, O'Donoghue & O'Donoghue, Washington, D.C., Robert S. Savelson, Cohen, Weiss & Simon, New York City, of counsel), for appellants.

Burton H. Hall, New York City, for appellees.

Robert E. Dizak, Dizak & Lashaw, New York City, for amicus curiae, Metropolitan New York Drywall Contractors Ass'n, Inc.

David S. Barr, Barr & Peer, Washington, D.C., for amicus curiae, International Brotherhood of Painters and Allied Trades.

Before LUMBARD, WATERMAN and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

Defendants below, the Operative Plasterers' and Cement Masons' International Association of the United States and Canada ('Plasterers') and two of its locals appeal from an order of the United States District Court for the Southern District of New York, Metzner, J., which granted a preliminary injunction in favor of plaintiffs Drywall Tapers and Pointers of Greater New York, Local 1974 ('Painters') and certain of its individual members which, in general, would require the removal from the performance of any work involving taping or pointing of drywall surfaces at any jobsite wherever located of any members of the defendants. This Court granted a stay of the injunction and expedited argument of the appeal and, upon hearing argument on April 28, 1976, we continued the stay pending our determination of the appeal. We now affirm the district court's decision.

This appeal stems from a jurisdictional dispute about job assignments for a prefinishing aspect of construction work. Basically, the argument centers around 'Sta-Smooth,' a taping and pointing material, and whether its use falls within the work province of painters or plasterers. Both unions involved herein, as members of the Building and Construction Trades Department of the AFL-CIO ('Department'), are bound by its arbitral and administrative machinery. In 1947, a decision of record ¹ by the Department assigned work by the nature of the material used--plasterers did work involving plaster materials, and painters did work requiring adhesive materials; since in 1975, a local arbitration board characterized 'Sta-Smooth' as a plaster material, if the 1947 rule still governs, the application of 'Sta-Smooth' would be plasterers' work. In 1961, however, a Memorandum of Understanding ('Memorandum'), signed by both the Plasterers' and Painters' internationals and binding on their locals, provided that all pointing and taping of drywall, regardless of the material used, is painters' work so long as the surfaces were not to receive plaster or acoustical finishes; the Memorandum further stated that it superseded all prior understandings. The two unions hotly dispute whether the 1961 Memorandum is still viable.

The construction industry has established procedures for the settlement of jurisdictional disputes. ² The dispute is first heard by a local board, here the Executive Committee of the Building Trades Employers' Association of the City of New York ('BTEA') whose decision is appealable to the Impartial Jurisdictional Disputes Board ('Disputes Board') of the Department. A decision rendered by the Disputes Board may be appealed to the Appeals Board of the Department, whose decision is final. Finally, the Joint Administrative Committee, overseer of both the Disputes and Appeals Boards, may certify repetitive issues for resolution by the international unions, and, in the event that no settlement is reached in ninety days, then to a Hearings Panel for a national decision binding on all unions. As Judge Metzner aptly noted, '(i)t is clear from this highly-developed and sophisticated arbitration structure that no jurisdictional dispute between members of the Department should ever reach the courts.'

The dispute involved herein has been before the BTEA, which held, in 1975, without mention of the 1961 Memorandum, that 'Sta-Smooth' was a plaster material and that its application was plasterers' work. The appeal of this decision to the Disputes Board was at first allowed and then revoked because the Painters had initiated arbitration against an employer, allegedly in violation of the Department's constitution. Prior to this time, during a three-month period in 1973, the Disputes Board had resolved at least ten separate jurisdictional controversies by relying on the 1961 Memorandum. In December 1973, the Joint Administrative Committee referred the matter to the presidents of the international unions to settle what had become a repetitive question; during the interim, the Committee instructed the Disputes Board to defer action on appeals involving this issue. After this latter ruling was protested by both sides to the instant dispute, the Joint Administrative Committee, in January 1974, assured the Painters that it would consider the matter at its next meeting. Since no further action has resulted, the Disputes Board has continued to defer all appeals involving this issue. The Joint Administrative Committee has not referred the question to the Hearings Panel for a national decision.

On August 28, 1975, plaintiffs filed a complaint in the United States District Court alleging that defendants had breached the 1961 Memorandum by asserting jurisdiction over work which properly should be assigned to Painters. Federal jurisdiction was based on § 301(a) of the Labor Management Relations Act ('LMRA'), 29 U.S.C. § 185(a). ³ Plaintiffs sought, inter alia, specific performance of the Memorandum and an injunction restraining defendants from assuming painters' work. The district court initially concluded that the issue of the present applicability of the Memorandum was best decided under existing union administrative machinery and directed both locals to petition the Joint Administrative Committee for referral to the Hearings Panel. Judge Metzner ruled that the parties' motions could be renewed if the unions did not cooperate or if the Department failed to follow its own plan. On December 11, 1975, the Painters, following the mandate of the court, applied to the Joint Administrative Committee for the necessary action but no action was taken by that Committee. The Plasterers evidently did not join the Painters' efforts to resolve the dispute within the union framework. Plaintiffs then renewed their motion for a preliminary injunction. Defendants cross-moved for summary judgment, alleging the plaintiffs' failure to exhaust contractual remedies. Plaintiffs answered with their own motion for partial summary judgment.

On March 5, 1976, the district court issued an opinion granting the preliminary injunction but found summary judgment for either side inappropriate, since substantial factual matters remained unresolved. Judge Metzner found that repeated reliance on the 1961 Memorandum by the Disputes Board indicated the continuing viability of that document and, thus, the likelihood that plaintiffs would ultimately succeed on the merits. He further found that compliance by the Painters with the earlier order of the court constituted exhaustion of contractual remedies within the AFL-CIO's Building and Construction Trades Department. On March 12, Judge Metzner issued an order that required Plasterers to remove its members from jobsites, 'wheresoever located,' that involved taping and pointing of dry-walls by plasterers.

On appeal, Plasterers claim that the district court lacked jurisdiction to issue an injunction; they also assert, assuming jurisdiction was peoper, that the court abused its discretion by granting the injunction and that, in any case, the scope of the order appealed from is too broad.

The initial issue for our consideration is whether the Memorandum contested here comes within the terms of § 301(a) of the LMRA, which vests jurisdiction in the district courts for suits alleging 'violation of contracts . . . between any . . . labor organizations (representing employees in an industry affecting commerce.).' It is well established that § 301(a) comprehends 'other labor contracts besides collective bargaining' agreements. Retail Clerks v. Lion Dry Goods, 369 U.S. 17, 26, 82 S.Ct. 541, 7 L.Ed.2d 503 (1962) (strike settlement agreement). See also, Abrams v. Carrier Corporation, 434 F.2d 1234 (2 Cir. 1970), cert. denied sub nom. United Steelworkers of America, AFL-CIO v. Abrams, 401 U.S. 1009, 91 S.Ct. 1253, 28 L.Ed.2d 545 (1971) (union charter and bylaws); Local 33, Int. Hod Carriers, etc. v. Mason Tenders, etc., 291 F.2d 496 (2 Cir. 1961) (longstanding custom and practice); Parks v. International Brotherhood of Electrical Wkrs.,314 F.2d 886 (4 Cir.), cert. denied, 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142 (1962) (constitution of international union); International Brotherhood of Firemen and Oilers v. International Ass'n of Machinists, 338 F.2d 176 (5 Cir. 1964) (no-raid agreement); United Textile Workers v. Textile Workers Union, 258 F.2d 743 (7 Cir. 1958) (no-raid agreement). Enforcing freely negotiated contracts between labor organizations both minimizes disruption of interstate commerce and encourages the voluntary resolution of inter-union disputes. We hold that the Memorandum in question here clearly falls within the literal terms and policy objectives of § 301(a). It is an agreement of definite content negotiated by two international unions to resolve work assignments within the construction industry in an effort to prevent labor warfare.

The remaining jurisdictional question is whether the anti-injunction provisions of...