International Union of Op. Eng. v. Dahlem Const. Co.

• Decision Date: 31 December 1951
• Docket Number: No. 11297.,11297.
• Citation: 193 F.2d 470
• Parties: INTERNATIONAL UNION OF OPERATING ENGINEERS, Local No. 181, v. DAHLEM CONST. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

193 F.2d 470 (1951)

INTERNATIONAL UNION OF OPERATING ENGINEERS, Local No. 181, v. DAHLEM CONST. CO.

No. 11297.

United States Court of Appeals Sixth Circuit.

December 31, 1951.

COPYRIGHT MATERIAL OMITTED

Lawrence S. Grauman, Herman Cohen, Louisville, Ky., for appellant.

John P. Sandidge, Louisville, Ky. (Robert P. Hobson, Woodward, Hobson & Fulton, Louisville, Ky., on the brief), for appellee.

Before ALLEN, McALLISTER and MILLER, Circuit Judges.

ALLEN, Circuit Judge.

This action for damages was instituted under § 185, 29 U.S.C., 29 U.S.C.A. § 185, for violation of a contract between an employer and a labor organization representing the employees in an industry affecting commerce. The court directed a verdict for the plaintiff (appellee here), but ordered the jury to award such damages as were the direct and proximate result of the strike. The jury found the amount to be $1850, for which judgment was entered and this appeal was then prosecuted.

The controlling question is whether under the applicable statutes appellant is liable for the damages proved. The case arises out of the following facts:

On July 15, 1948, the General Contractors Association, Inc., which represented certain general contractors in and around Louisville, Kentucky, including appellee, and the Louisville Building & Construction Trades Council, which was the bargaining agent for seven affiliated unions, entered into a written contract to which appellant was made a party by mutual consent. The contract covered wages and other conditions of employment, and included arbitration of disputes and a no-strike clause. It also contained a provision to the effect that if either party gave written notice of a desire to modify any of the terms of the contract, negotiations should be entered into by the parties and in such case the agreement should remain in full force and effect until modified by a new agreement.

On March 4, 1949, the Building & Construction Trades Council gave written notice to the Contractors Association of its desire to modify articles 1, 2, 3, and 4 of the contract. On March 10, 1949, the Contractors Association gave the Building Trades Council written notice of its desire to modify article 2 of the contract pertaining to wages. Negotiations were entered into between the representatives of the Building Trades Council and the Contractors Association, and continued thereafter until September 3, 1949. July 28, 1949, the Contractors Association refused to agree to a wage increase; but the five unions working on appellee's building projects continued operations. July 29, 1949, the Contractors Association opened separate negotiations with appellant. During the period in controversy appellee had in its employ no member of appellant's union. August 11, 1949, the Contractors Association sent appellant a draft of a new contract which was refused, and on August 15 the appellant went out on strike. It placed pickets successively on five of appellee's construction jobs, causing them to remain at a standstill. As a result appellee was required to pay overtime, which would not otherwise have been necessary; to pay demurrage on railroad cars, perform unnecessary hauling, and to carry overhead without production. Appellant does not contend that the amount of damages allowed by the jury is excessive.

May 5, 1949, appellant sent to the Federal Mediation and Conciliation Service notice of the existence of the dispute, and later, on June 6, 1949, the Building Trades Council sent a similar notice to the Federal Mediation and Conciliation Service.

The action is based upon the contention that appellant breached its contract by going on strike August 15, 1949, without notice to appellee or to the General Contractors Association.

The applicable sections of the contract provide:

Article 3, section 3. "Neither the Association, Association members, Councils or Unions signatory hereto shall engage in, permit, induce, or encourage any stoppage of work, slowdown, strike, lockout or concerted refusal to work by reason of any dispute or difference of opinion or policy between the parties hereto, save and except the failure of the other party to abide by a decision of the Joint Arbitration Committee, or a judgment of a Court of Law."

Article 4, section 2. "This agreement shall be in full force and effect until the first day of July, 1949. Should either party hereto give written notice during the month of March, 1949, of a desire to modify any of the terms and provisions of this contract, negotiations will be entered into by the parties hereto for the renegotiation of this agreement. Should such notice of a desire to modify the terms of this agreement be given by either party to the other, then this agreement shall remain in full force and effect until modified by a new agreement resulting from the negotiations."

Appellant contends that it had the right to strike at any time after July 1, 1949, since it had properly given the 60-day cooling-off period notice provided for in § 158 (d), 29 U.S.C., 29 U.S.C.A. § 158(d), quoted in the margin.¹ This statute does not absolve appellant of liability for its breach of the no-strike provision of its contract with appellee, for the reason (1) that appellant did not give notice in accordance with the express terms of § 158(d); and (2) that this statute does not apply to actions for damages instituted under § 185(a), 29 U. S.C., 29 U.S.C.A. § 185(a).

On the first point, the Building Trades Council gave its notice to modify the contract on March 4, 1949. This was sixty days prior to the expiration date of the contract. On May 5, 1949, more than sixty days after the notice to modify was given to the Contractors Association, appellant notified the Mediation and Conciliation Service of the existence of the dispute. A similar notice was given by the Building Trades Council to the Mediation and Conciliation Service more than ninety days after the notice of modification was given. But § 158(d), 29 U.S.C., 29 U.S.C.A. § 158(d), requires that the notice be sent within thirty days after the notice of modification. This provision is mandatory. The purpose of enacting the statute was that industrial strife might be prevented by prompt action of the Mediation and Conciliation Service. If the Service is delayed in communicating with the parties and in offering mediation and conciliation, its efforts often will be frustrated. Since appellant and its representative, the Building Trades Council, did not comply with this mandatory provision, its defense upon this point is not sustained.

Moreover, § 158, 29 U.S.C., 29 U.S.C.A. § 158, does not apply to an action for damages under § 185, 29 U.S.C., 29 U. S.C.A. § 185. The two statutes are included in totally separate divisions of the National Labor Relations Act, § 158 being found in Subchapter II — National Labor Relations — and § 185 being included in Subchapter IV — Liabilities of and Restrictions on Labor and Management. Section 158 in its original form was entitled "Unfair labor practices by employer defined" and included five paragraphs defining unfair labor practices which are written in the present statute. New definitions of unfair labor practices were included in the amended act and approximately two-thirds of § 158 is devoted to such definitions. The paragraphs relied on by the appellant, (d) 1, 2, 3, and 4, were also added to § 158, and the heading of the section is "Unfair labor practices." No provisions in § 158 relate in any way to § 185, the heading of which is "Suits by and against labor organizations — Venue, amount, and citizenship." The wording of the statutes strongly supports the conclusion that even if the appellant had complied with § 158(d), it would receive no immunity from a suit for damages for breach of contract under § 185.

This conclusion is supported by the legislative history of the amendment to the Labor Management Relations Act made in 1947. The Senate amendments to the Act at one point contained a provision which defined the violation of the terms of the collective bargaining contract as an unfair labor practice. This provision was omitted by the Senate and House in conference, for the reason that "Once parties have made a collective bargaining contract the enforcement of the contract should be left to the usual processes of the law and not to the National Labor Relations Board." House Conference Report No. 510, on H. R. 3020, 80th Cong., 1st Sess., 1947, pages 41 and 42. The striking out of the provision which defined...