Local 98, Detroit, Mich., of United Ass'n of Journeymen and Apprentices of Plumbing and Pipefitting Industry of U.S. and Canada, AFL-CIO v. Flamegas Detroit Corp., AFL-CI

• Decision Date: 27 March 1974
• Docket Number: AFL-CI,Docket No. 15455,P,No. 1,1
• Citation: 52 Mich.App. 297,217 N.W.2d 131
• Parties: , 86 L.R.R.M. (BNA) 2604, 73 Lab.Cas. P 14,504 LOCAL 98, DETROIT, MICHIGAN, OF the UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPEFITTING INDUSTRY OF the UNITED STATES AND CANADA,laintiff-Appellant, v. FLAMEGAS DETROIT CORPORATION, a Michigan corporation, et al., Defendants- Appellees
• Court: Court of Appeal of Michigan — District of US

Page 131

217 N.W.2d 131

52 Mich.App. 297, 86 L.R.R.M. (BNA) 2604,

73 Lab.Cas. P 14,504

LOCAL 98, DETROIT, MICHIGAN, OF the UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPEFITTING INDUSTRY OF the UNITED STATES AND CANADA, AFL-CIO Plaintiff-Appellant, v. FLAMEGAS DETROIT CORPORATION, a Michigan corporation, et al., Defendants- Appellees.

Docket No. 15455.

Court of Appeals of Michigan, Division No. 1.

March 27, 1974.

Released for Publication April 30, 1974.

Rehearing Denied May 6, 1974.

George M. Maurer, Jr., Zwerdling, Maurer, Diggs & Papp, Kratze, Greenbaum & Littman, Detroit, for plaintiff-appellant.

John H. Fildew, Fildew, Gilbride, Miller & Todd, John E. English, Fitzgerald, Peters & English, Detroit, for defendants-appellees.

Before McGREGOR, P.J., and J. H. GILLIS and O'HARA,* JJ.

J. H. GILLIS, Judge.

Plaintiff union entered into a collective bargaining agreement with the Metropolitan Detroit Plumbing and Mechanical Contractors Association, Inc. (hereinafter referred to as Association), effective June 2, 1970 through May 31, 1972. Article 19 of this contract provides in part:

'Temporary Heat

'(a) It is recognized that Stand-by Maintenance of gas-fired unit heaters, gas-fired warm air furnace and gas-fired space heating equipment shall be under the jurisdiction of Plumbers Local 98.

'(b) It is optional with the owner or contractor to provide temporary heat, and to decide the number of hours it shall be in operation, so long as all phases of maintenance are recognized as work of the United Association, a member of which shall be in attendance during operational periods until the general tests are completed and the mechanical installation is accepted by the owner.'

Walbridge-Aldinger Co. was the prime contractor for the construction of a General Motors plant in Oakland County. Lorne Company (hereinafter referred to as Lorne), a member of the Association, was the plumbing and mechanical contractor for this project. Defendants are the major suppliers of temporary gas-fired heating equipment to the construction industry in the metropolitan area. Lorne contracted with defendant Flamegas Utica Corporation to rent heating equipment for the General Motors site. Defendant, contending its employees had the right to install, hook up and maintain this equipment, threatened not to honor its contract with Lorne if Lorne honored its agreement with plaintiff, specifically article 19. Because of these threats, Lorne assigned its contract with defendant to Walbridge-Aldinger. ¹ Plaintiff alleges similar facts against Flamegas Detroit with respect to its dealings with John F. McCarthy Co. (hereinafter referred to as McCarthy), an Association member. Plaintiff brought this action in May 1972, charging defendants with tortious interference with an advantageous business relationship. Defendants filed a motion for accelerated judgment, GCR 1963, 116, asserting (1) the court lacked subject matter jurisdiction because this matter is within the sole jurisdiction of the National Labor Relations Board (hereinafter referred to as NLRB), and (2) this action is barred because the issues raised were decided adversely to plaintiff in two prior adjudications before the NLRB in 1970. The lower court, finding federal preemption by the NLRB, granted defendants' motion. Plaintiffs appeal.

In order to understand the posture of the present controversy, it is necessary to detail the facts of the prior dispute between the parties which resulted in the two NLRB decisions in 1970. In December 1969, Darin and Armstrong Co. (hereinafter referred to as Darin), general contractor for a Chrysler Corporation project, rented gas-fired heaters from Flamegas Detroit. In January, 1970, Local 98 advised Darin that it was claiming jurisdiction of all installation, hookup and maintenance work on the heaters on behalf of the plumbers. This work was then being done by Flamegas employees, who were not members of Local 98. The union claimed that the work had traditionally been done by plumbers. But there was no collective bargaining agreement between the union and Darin. Darin refused to accede to Local 98's demands, and the Local picketed the jobsite.

Only one of the two NLRB cases directly concerns us here. ² That was a proceeding pursuant to § 10(k) ³ of the National Labor Relations Act (hereinafter referred to as the Act), following a charge filed by Darin alleging Local 98 had violated § 8(b)(4)(D) ⁴ of the Act. ⁵ All parties were afforded full opportunity to be heard and to examine and cross-examine witnesses. Flamegas Detroit and Flamegas Industrial filed a memorandum of authorities and argument. In awarding the disputed work to Flamegas employees, the NLRB said:

'* * * we shall determine the jurisdictional dispute by awarding the work in dispute to employees of Flamegas Detroit and Flamegas Industrial. Since there is undisputed testimony that Plumbers Local 98 threatened to search out any job where Flamegas was located and that 'there would be trouble,' we find that there is a strong probability that similar disputes involving Plumbers Local 98 may occur in the future. We shall therefore apply our award in this case not only to the Chrysler project jobsite at which the dispute arose, but to all similar work Being performed or to be performed by Flamegas within the geographical jurisdiction of the Plumbers Local 98.' (Emphasis supplied.) ⁶

I

Is plaintiff collaterally estopped because of this NLRB decision from maintaining the present action? Collateral estoppel 'means simply that when an issue of * * * fact has once been determined by a valid and final judgment, That issue cannot again be litigated between The same parties in any future lawsuit'. (Emphasis supplied.) Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469, 475 (1970); see Knibbe v. City of Warren, 2 Mich.App. 241, 139 N.W.2d 344 (1966). Thus, application of this doctrine requires (1) identity of parties and (2) identity of issues.

For collateral estoppel purposes the parties in the NLRB case and the present action are identical. Substantial identity, not precise identity, is all that is required. Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 60 S.Ct. 907, 84 L.Ed. 1263 (1940). While Darin, a party in the previous case, is not a party here, 'it is no objection that the former action included parties not joined in the present action, or vice versa, so long as the judgment was rendered on the merits * * *'. Dreyfus v. First National Bank of Chicago, 424 F.2d 1171, 1175, (CA7, 1970); see Jordon v. Stuart Creamery, Inc., 258 Iowa 1, 137 N.W.2d 259 (1965).

The estoppel doctrine requires the issues in the two actions to be identical, not merely similar. Sonken-Galamba Corporation v. Atchison, T. & S.F. Ry. Co., 28 F.Supp. 456 (W.D.Mo., 1939). Defendants argue the issue here is the same as that before the NLRB in 1970. They say the issue before the NLRB was: Who is entitled to perform the installation, hookup, and maintenance of the gas heaters--Flamegas employees or the plumbers? Defendants contend this is precisely the issue before us in this case. We disagree.

There was no collective bargaining agreement between Local 98 and Darin as there is here between the Local and Lorne and McCarthy. Thus, in the 1970 action there was not, nor could there have been, any question of tortious interference with contract by Flamegas. This contractual relationship is a material change of fact which prevents application of collateral estoppel in the present case.

"The estoppel of a judgment extends only to the facts and conditions as they were at the time the judgment was rendered, and to the legal rights and relations of the parties as fixed by the facts so determined; and when new facts or conditions intervene before a second suit, furnishing a new basis for the claims and defenses of the parties respectively, the issues are no longer the same, and hence the former judgment cannot be pleaded in bar to the subsequent action." Wright v. Kinnard, 147 Ind.App. 484, 489, 262 N.E.2d 196, 200 (1970); see Meister v. Dillon, 324 Mich. 389, 37 N.W.2d 146 (1949); Cloverlanes Bowl, Inc. v. Gordon, 46 Mich.App. 518, 208 N.W.2d 598 (1973).

The absence of a contract between Darin and the union was an important fact considered by the NLRB. They noted in their 1970 decision:

'Although Darin and Armstrong is also a member of the Association, there is no evidence that it employs any plumbers or is bound by the Association contract with Plumbers Local 98.' Darin & Armstrong Co., 185 NLRB 854, 855 (1970).

II

Does the subject matter of this action come within the exclusive jurisdiction of the NLRB, thereby ousting our courts of jurisdiction? The United States Supreme Court succinctly set forth the standard governing NLRB preemption in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959).

'When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law. Nor has it mattered whether the States have acted through laws of broad general application rather than laws specifically directed towards the governance of industrial relations. Regardless of the mode adopted, to allow the States to control conduct which is the subject of national regulation would create potential frustration of national purposes. * * * When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the...