LAKELAND CONST. CO. v. OPERATIVE PLASTERERS, ETC., 79 C 3101.

Citation494 F. Supp. 37
Decision Date11 March 1980
Docket NumberNo. 79 C 3101.,79 C 3101.
PartiesLAKELAND CONSTRUCTION CO., INC., Plaintiff, v. OPERATIVE PLASTERERS & CEMENT MASONS INTERNATIONAL ASSOCIATION, LOCAL NO. 362, Defendant.
CourtU.S. District Court — Northern District of Illinois

George E. Riseborough, A. Lynn Himes, Waukegan, Ill., and Gerard Smetana, Chicago, Ill., for plaintiff.

Hugh B. Arnold, Marc M. Pekay, Arnold & Kadjan, Chicago, Ill. (of counsel), for defendant.

DECISION ON MOTION TO DISMISS

McMILLEN, District Judge.

The Corrected First Amended Complaint (hereinafter referred to as the complaint) seeks relief pursuant to §§ 301 and 303 of the Labor Management Relations Act of 1947, 29 U.S.C. §§ 185, 187. Defendant has filed a motion to dismiss the complaint, pursuant to Rules 12(b)(1) and (b)(6). Rule 12(b)(1) is invoked because defendant takes the position that certain of plaintiff's theories fall within the exclusive jurisdiction of the National Labor Relations Board.

Although defendant has filed no materials beyond the pleadings in support of this motion, it relies on certain facts and factual conclusions inferred from the temporary restraining order proceedings in this case. These matters beyond the pleadings cannot be considered on a motion to dismiss, since the factual record on many points is not closed. A plaintiff is not required to prove its case on the merits at a preliminary hearing. E. g., Progress Development Corporation v. Mitchell, 286 F.2d 222, pp. 233-34 (7th Cir. 1961). For the purposes of this motion, therefore, the allegations of the complaint are taken as true.

Plaintiff attached the collective bargaining agreement between itself and defendant to the complaint. In paragraph 9 it alleges that "Article VI of the Contract also contains a mandatory arbitration clause which requires that all grievances caused by a violation of the parties' agreement be submitted to the joint arbitration committee and investigated and resolved for at least seven (7) days before any stoppage of work can occur" (emphasis added). While plaintiff concludes that Article VI constitutes a mandatory arbitration clause, plaintiff's allegation limits the scope of that clause to grievances flowing from a violation of the agreement.

Plaintiff is a sub-contractor of Maxcon Construction and Development Company, d/b/a Lake Zurich Construction, Inc. (hereinafter referred to as the general contractor) for certain work on a project in Lake Zurich, Illinois. Plaintiff alleges that defendant, since July 12, 1979 and continuing to date, has directed a work stoppage among the employees covered by plaintiff's collective bargaining agreement with defendant. Plaintiff specifically alleges that plaintiff's employees represented by defendant were instructed to cease working on this project while a picket line was posted at the jobsite. Paragraph 12 conclusorily alleges that the work stoppage resulted from "grievances over the rights and obligations of the parties under the contract when common situs job sites are subject to alleged area picketing . . . . Such employee and union grievances are subject to the seven (7) day mandatory arbitration provision of Article VI." This mixed conclusion of law and fact is in dispute.

In Count II, paragraph 35, plaintiff alleges that the purpose of defendant's conduct and of this work stoppage is to force plaintiff to cease doing business with the general contractor, or in the alternative to force the general contractor to stop doing business with any non-union contractors on the job site. To remedy these conditions, plaintiff offers a variety of legal theories and prayers for relief.

I. The availability of injunctive relief under § 301.

Paragraphs 10 through 18 of the first amended complaint contain plaintiff's allegations in support of injunctive relief. The exact nature of the prayer is unclear; however, it is apparent that plaintiff seeks injunctive relief against the strike pending arbitration, pursuant to § 301. Defendant contends that such injunctive relief is barred by the Norris-LaGuardia Act, 29 U.S.C. § 101, et seq.

The leading case in this area is Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). In part IV of that decision, the Court held that some accommodation is necessary between the seemingly absolute terms of the Norris-LaGuardia Act and the policy considerations underlying § 301(a). But in part V of that decision, the Court emphasized that its holding was a narrow one: "We deal only with the situation in which a collective-bargaining contract contains a mandatory grievance adjustment or arbitration procedure." 398 U.S. at 253, 90 S.Ct. at 1594. The Court further emphasized that injunctive relief is not appropriate as a matter of course in every case of a strike "over an arbitrable grievance." 398 U.S. at 254, 90 S.Ct. at 1594. The Court quoted from the Sinclair dissent, in overruling that decision, as follows:

When a strike is sought to be enjoined because it is over a grievance which both parties are contractually bound to arbitrate, the District Court may issue no injunction until it first holds that the contract does have that effect; and the employer should be ordered to arbitrate, as a condition of his obtaining an injunction against the strike.

Ibid. Boys Markets established at least two threshold requirements to avoid the prohibition of the Norris-LaGuardia Act: (1) that the collective bargaining contract contain a mandatory grievance adjustment or arbitration procedure, and (2) that the parties are contractually bound to arbitrate the dispute giving rise to the strike.

This interpretation of Boys Markets was confirmed in Buffalo Forge Co. v. United Steelworkers of America, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976). 428 U.S. at 407, 96 S.Ct. at 3147:

The driving force behind Boys Markets was to implement the strong Congressional preference for the private dispute settlement mechanisms agreed upon by the parties. Only to that extent was it held necessary to accommodate § 4 of the Norris-LaGuardia Act to § 301 of the Labor-Management Relations Act and to lift the former's ban against the issuance of injunctions in labor disputes. Striking over an arbitrable dispute would interfere with and frustrate the arbitral processes by which the parties had chosen to settle a dispute.

The Court in Buffalo Forge held that Boys Markets was not controlling there, because "the strike was not over any dispute between the Union and the employer that was even remotely subject to the arbitration provisions of the contract." Ibid. That strike was in sympathy to a primary strike and had neither the purpose nor the effect of denying or evading an obligation to arbitrate.

The Court in Buffalo Forge expressly held that an injunction could not be authorized solely on the ground that the strike violated a no-strike clause in the contract. 428 U.S. at 409, 96 S.Ct. at 3148. While the applicability of that no-strike clause to the sympathy strike constituted an arbitrable issue, the possible remedy was an order to arbitrate, rather than an injunction pending the arbitrator's result. 428 U.S. at 410, 96 S.Ct. at 3149. Thus, even though the strike produced an arbitrable dispute in light of the express no-strike clause, it did not arise from an arbitrable dispute.

Article VI of the contract herein contains the no-strike provision:

Plaintiff and defendant . . . hereby agree that there shall be no lockout by plaintiff . . . or strikes, stoppages or abandonment of work by defendant . . . . All grievances caused by the violation of the working agreement, shall be first investigated by arbitration committee of the Lake County Contractors Association and committee representing the Cement Masons Local No. 362 within seven (7) days before any stoppage of work occurs. It is understood that this clause applies to members of the Lake County Contractors Association only.

On its face, the Article provides for an investigation, perhaps in aid of conciliation, which may or may not constitute binding arbitration. The seven day limitation before work ceases does indicate that some binding resolution by the investigators may be intended. However, plaintiff has sought discovery in an attempt to demonstrate that the bargaining history and practice underlying this provision clarifies its vagaries to this extent. Until this clarification has been accomplished, we find that the bare language of Article VI is not sufficiently clear to amount to a "mandatory grievance adjustment procedure" within the meaning of Boys Markets.

Furthermore, the complaint does not state a claim for injunctive relief, since the strike must also arise from a dispute that is subject to a mandatory contract procedure. There is no specific factual allegation that some such dispute preceded this strike. On the contrary, the complaint makes it clear that the dispute giving rise to this strike was not the result of a dispute covered by this agreement. Plaintiff expressly alleges that defendant's conduct was intended to impose secondary pressure on the general contractor (those theories are discussed below). Plaintiff cannot be heard to argue that defendant was attempting to draw neutrals into the battle, to put pressure on the general contractor, and at the same time allege that a primary dispute, subject to a mandatory contract adjustment procedure, gave rise to this strike.

Paragraph 12 does not cure this problem. It essentially says no more than that a dispute exists between the parties regarding the applicability of the no-strike clause in this context. Buffalo Forge expressly held that such a dispute, albeit it may be arbitrable, cannot justify an injunction pending the arbitrator's decision. Norris-LaGuardia therefore applies, and the prayer for injunctive relief will be dismissed.

II. The availability of plaintiff's requested relief in money damages under § 301.

Paragraphs 23-30 of the complaint...

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