JOHN S. GRIFFITH CONST. v. SO. CAL. CEMENT MASONS NEGOTIATING COMMITTEE

• Decision Date: 24 September 1984
• Docket Number: No. CV 84-3546-ER(KX).,CV 84-3546-ER(KX).
• Citation: 607 F. Supp. 809
• Parties: JOHN S. GRIFFITH CONSTRUCTION CO., a California corporation, Plaintiff, v. SOUTHERN CALIFORNIA CEMENT MASONS NEGOTIATING COMMITTEE, an unincorporated association; Cement Masons Local Union No. 893, an unincorporated association, Defendants.
• Court: U.S. District Court — Central District of California

607 F. Supp. 809

JOHN S. GRIFFITH CONSTRUCTION CO., a California corporation, Plaintiff, v. SOUTHERN CALIFORNIA CEMENT MASONS NEGOTIATING COMMITTEE, an unincorporated association; Cement Masons Local Union No. 893, an unincorporated association, Defendants.

No. CV 84-3546-ER(KX).

United States District Court, C.D. California.

September 24, 1984.

Wayne A. Hersh, Hersh & Stoll, Newport Beach, Cal., for plaintiff.

Jeffrey L. Cutler, Davis, Frommer & Jesinger, Los Angeles, Cal., for defendants.

MEMORANDUM DECISION

RAFEEDIE, District Judge.

Plaintiff, Griffith Construction Company, filed this action against defendants Southern California Cement Masons Negotiating Committee and Cement Masons Local Union No. 893 seeking a declaration that it had validly repudiated its pre-hire agreement ("PHA") with defendants and therefore was not obligated to defendants in any way under the terms of the PHA. Defendants moved that this Court dismiss this action for lack of subject matter jurisdiction, pursuant to Federal Rules of Civil Procedure, Rule 12(b)(1). Plaintiff contends that the Ninth Circuit decision Todd v. Jim McNeff, Inc., 667 F.2d 800 (9th Cir.1982), aff'd. 461 U.S. 260, 103 S.Ct. 1753, 75 L.Ed.2d 830 (1983), establishes jurisdiction to determine whether plaintiff validly repudiated its PHA before defendants achieved majority status. Plaintiff also asks this Court to impose sanctions upon defendants for bringing this motion.

FACTUAL BACKGROUND

During January through October 1983, plaintiff was the owner/builder of a project in Glendale, California. Griffith had a construction contract with Stolte, Inc., to act as a general contractor on the project. In July, 1983, several unions, including the defendants, engaged in a strike action and picketed the Glendale site. All construction stopped. On July 13, 1983, plaintiff was advised that work could resume if it signed an interim agreement and removed Stolte as general contractor. Plaintiff signed the PHA with defendants on July 14, 1983. It had no employees and no other collective bargaining agreement with a construction union when it signed the PHA.

Work at the site resumed and plaintiff employed union members for a period of about three weeks. After this, Stolte, Inc., executed its own agreement with the union, returned to the project as general contractor, and employed union members. The construction project ended around November 1, 1983.

On November 1, 1983, plaintiff allegedly repudiated the PHA by a letter to defendant union. The union notified plaintiff that it felt the repudiation was ineffective.

On November 23, 1983, plaintiff petitioned the National Labor Relations Board ("NLRB"), Region 21 for an election to determine the status of the agreement between plaintiff and defendants — whether a majority of employees were members of or supported the union. The NLRB regional director dismissed the petition, deciding that plaintiff did "not currently employ any employees, nor has it employed employees during a representative period of time." Plaintiff appealed and the decision was upheld in the NLRB appeal process.

Plaintiff then filed this action for declaratory relief. Its complaint asserted that this Court has jurisdiction under both § 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a) and 28 U.S.C. § 1334.

Plaintiff has only relied upon the former basis in its opposition to this motion.

Jurisdiction Under Section 301(a)

Section 301(a) of the LMRA provides:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

29 U.S.C. § 185(a)

The Ninth Circuit has interpreted § 301 to include the "jurisdictional requisites" that there be "(1) a contract; (2) a claim of violation; and (3) a `between' employer and labor organization or a `between' labor organizations element." Alvares v. Erickson, 514 F.2d 156, 161 (9th Cir.1975), cert. denied, 423 U.S. 874, 96 S.Ct. 143, 46 L.Ed.2d 106 (1975); accord McCauslin v. FMC Corp., 728 F.2d 1275 (9th Cir.1984) ("To establish district court jurisdiction pursuant to § 301 of the LMNR, a plaintiff must allege only that a contract between an employer and a union has been breached."); Painters and Decorating Contractors Ass'n v. Painters and Decorators Joint Comm., 707 F.2d 1067, 1070 (9th Cir.1983) ("To assert jurisdiction under § 301(a), a litigant must allege a breach of contract between an employer and a labor organization or between labor organizations in an industry affecting commerce.") cert. denied, ___ U.S. ___, 104 S.Ct. 1709, 80 L.Ed.2d 182 (1984); Atchison, Topeka and Sante Fe Railway v. Locals No. 70, 511 F.2d 1193, 1195 (9th Cir.1975) (same).

There are in fact two parts to the question whether this Court has jurisdiction under § 301(a). The first is whether the plaintiff has met the jurisdictional requisites of § 301(a) as described above. The second is whether, even though the requisites are met, this Court lacks jurisdiction because the NLRB has preempted the district court, a concept referred to as primary jurisdiction. See generally San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). In most opinions, these two aspects of jurisdiction are not separated, because the existence of the former is undisputed. In other cases, the two aspects are so intertwined that it may be pointless to separate them. In this case, however, distinguishing the two separate questions clarifies that this Court lacks subject matter jurisdiction over the action.

The first and third jurisdictional requisites are met in this case as there is or was a contract (the PHA) between plaintiff and defendants. But in neither plaintiff's complaint nor its opposition to this motion does it even allege a breach of this PHA or refer to its terms. Plaintiff is not seeking to enforce the PHA; quite the contrary, he wishes this Court to pronounce that the PHA is dead. Nor can this suit be considered one to interpret the terms of the PHA. There is no disagreement as to what it means or to whom would be a party to it if the PHA is in effect. There is only the question whether it is in effect.

The only cases this Court has found in which plaintiff sought only to determine the validity of a contract are Hernandez v. National Packing Co., 455 F.2d 1252 (1st Cir.1972) and NDK Corp. v. Local 1550 of the United Food Commercial Workers International Union, 709 F.2d 491 (7th Cir. 1983). Those Courts decided to "adhere to the plain language of § 301 and hold that it provides jurisdiction for suits for violation of contracts but not for determinations of the validity of contracts where validity is the ultimate issue." 709 F.2d at 493.

Faced with this case law that plaintiff must allege a breach of contract or attempt to interpret its terms to have jurisdiction under § 301, plaintiff asserts that the Ninth Circuit case of McNeff provides this Court with jurisdiction.

In that case, trustees sued in federal court a subcontractor who had signed a PHA but failed to make the trust fund contributions it required. The plaintiff based jurisdiction on § 301. The major question presented by the case was the enforceability of PHA's. The Court held that "§ 8(f) pre-hire contracts are voidable by the employer until the union attains majority support. Until such a repudiation, however, the contract is fully enforceable in an action under § 301 of the L.M.R.A." 667 F.2d at 803-04.

The Ninth Circuit then stated:

McNeff, Inc. has argued that this holding creates a conflict in the law, since it will require the District Courts to make determinations regarding the majority status of a union at different times once it has made the finding that there has been a repudiation. It cites South Prairie Construction Co. v. Local 627, International Union of Operating Engineers (Peter Kiewit), 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976) for the proposition that these determinations are solely the province of the N.L.R.B. Peter Kiewit is, however, not controlling here. The Board has expertise in determining the majority status of a union at any given time. It has no apparatus for determining a union's past status. If there has been a repudiation, the crucial question is whether the union had previously attained majority status. Re-creation of past relationships for the purpose of resolving factual disputes is one of the traditional functions of a trial court, and not a process in which the N.L.R.B. has any extraordinary expertise. Therefore, in this opinion we do not extend the District Court's jurisdiction into an area in which the N.L.R.B. exercises exclusive authority.

We need not resolve this issue, however, because it is clear that in this case the employer never repudiated the contract.

667 F.2d at 804.

When the Supreme Court affirmed McNeff, it made no mention of this argument, but only held:

A § 8(f) prehire agreement is subject to repudiation until the union establishes majority status. However, the monetary obligations assumed by an employer under a prehire contract may be recovered in a § 301 action brought by a union prior to the repudiation of the contract, even though the union has not attained majority support in the relevant unit. There having been no repudiation in this case, the judgment of the Court of Appeals is Affirmed.

461 U.S. at 271, 103 S.Ct. at 1759.

Nowhere in either opinion is there any indication that the Court's holding would increase a district's jurisdiction, or that either modified the three jurisdictional requisites. Once the hurdle of whether PHA's could be enforced in the same manner as any other collective bargaining agreement, McNeff was a...