Local U. 499 of Int. Bro. of Elec. Wkrs. v. Iowa Power & Light Co.

• Decision Date: 06 January 1964
• Docket Number: Civ. No. 5-1457.
• Parties: LOCAL UNION 499 OF the INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO an Unincorporated Association, and D. R. Huffman, John Hood, William Lamkins, Dale Bassett, and Jerry Dunagan, Plaintiffs, v. IOWA POWER AND LIGHT COMPANY, a Corporation, Defendant, and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada and its Local Union 33, Defendant-Intervenors.
• Court: U.S. District Court — Southern District of Iowa

224 F. Supp. 731

LOCAL UNION 499 OF the INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO an Unincorporated Association, and D. R. Huffman, John Hood, William Lamkins, Dale Bassett, and Jerry Dunagan, Plaintiffs, v. IOWA POWER AND LIGHT COMPANY, a Corporation, Defendant, and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada and its Local Union 33, Defendant-Intervenors.

Civ. No. 5-1457.

United States District Court S. D. Iowa, Central Division.

January 6, 1964.

Lex Hawkins, Des Moines, Iowa, for plaintiffs.

D. J. Fairgrave, Des Moines, Iowa, Howard P. Robinson, Chicago, Ill., Kent M. Forney, James L. Rogers, Des Moines, Iowa, for defendant.

Patrick C. O'Donoghue, Donald J. Capuano, Washington, D. C., and D. J. Goode, L. R. Voigts, Des Moines, Iowa, for defendant-intervenors.

HANSON, District Judge.

This is a ruling on a motion for a temporary injunction. While the detailed facts of this case are quite complicated, the principal facts are clear. The plaintiff, Local Union 499 of the International Brotherhood of Electrical Workers, AFL-CIO, entered into a collective bargaining agreement with the defendant, Iowa Power and Light Company. This agreement was entered into in August 1962 and is to continue in effect until August 1964. In 1961 and 1962, the Iowa Power and Light Company started a reorganization and modernization program. This called for considerable construction work and the plaintiff union admitted that it was impossible for the union to do all of this work. Certain of this work called "interference work" the union has claimed should be done by the maintenance employees of Iowa Power and Light Company, which employees are represented by the plaintiff union. Iowa Power and Light Company has entered into a number of contracts with other companies. These other companies have been and are at present doing work on the reorganization and modernization program. Some of the employees of the companies doing this work are members of United Association of Journeymen and apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada and its Local Union 33.

At one time, some of the work in removal of existing pipe and putting in temporary pipe was assigned to Local 499. Local 33 then struck. The parties stipulated to submit this dispute to the NLRB in a § 10(k) (Title 29, Section 160(k)) hearing. This concerned only the work on boiler No. 6 and no injunction is now being sought with respect to the work on boiler No. 6. The NLRB decision was in favor of Local 499. Local 499 claims that the disputed work is similar to work on boiler No. 6 which the NLRB examiner held should be assigned to Local 499. Local 33 and the Iowa Power and Light Company have notified the NLRB that they cannot abide by the decision.

Two stewards and the business agent for Local 499 testified that the Iowa Power and Light Company is now allowing third-party contractors to do work which was formerly being done by the men of Local 499. The testimony was that this included removing of existing equipment in connection with boiler No. 1, insulation work on pipes, replacing temporary electrical work and trimming trees. The Iowa Power and Light Company claims that this is new construction and not normal maintenance. It is also claimed by Iowa Power and Light Company that before Local 499 could do this work additional men would have to be added to the Local 499 bargaining union and that overtime would have to be given to the men in Local 499. Iowa Power and Light claims that this is really a dispute between Locals 499 and 33 and that they want the work done as a complete job and not divided up and done piecemeal. In the past, new construction was let out to third-party contractors and Local 499 is not claiming any new construction.

The facts as to whether or not any men who could do the claimed work have been laid off was somewhat disputed. There was testimony that there had been no reduction in maintenance personnel during 1962 and 1963. However, there was evidence that between December 31, 1961, and December 1962 there was a reduction of five men at Des Moines Power Station called DPS#2 and up to October 1963 there have been six reduced. The business agent testified that men have been laid off who could do the claimed work and that the men working could do more of the work. The laid off men referred to line men who had done the tree trimming. It was claimed by the union that some men in the maintenance department have not been replaced. The refilling of jobs is usually handled by grievance procedure. Exhibit #32 is a grievance filed at DPS#2. The testimony indicated that some of the laid off men would have to have their classifications changed in order to do the claimed work. There is testimony that the union has not suggested to Iowa Power and Light Company that classifications be changed.

The testimony was that this increase in work is going to be temporary and end when the modernization and reorganization plan is finished. At that time, there will be a reduction in operations personnel but not of the present maintenance personnel and this will happen regardless of who does this construction work. There is also $1,800,000.00 worth of deferred maintenance work which the Company says they are anxious to get finished.

It is only the maintenance personnel in Local 499 who are complaining. They are claiming only the normal maintenance, that is, the work which in the past has been done by them. They are not claiming the work on new locations. They are not claiming the certified welding nor the necessary tie-ins to existing pipes in the work on the boilers.

The defendants moved to dismiss the plaintiffs' case and this motion included at least sixteen separate subdivisions.

Courts are hesitant to grant a temporary injunction which would in effect give the plaintiff the relief asked for in the main case and it can be done only on a clear showing of reasonable probability of success in the main case. Local 453 v. Otis Elevator, D.C., 201 F. Supp. 213; Fried v. Glen Electric Heater Corp., D.C., 198 F.Supp. 248; Local 180 etc., v. J. I. Case Co., D.C., 185 F.Supp. 130. The relief asked for in the main is specific performance of the collective bargaining contract. It is the burden of showing a reasonable probability of attaining this relief which the plaintiffs must carry. The applicable parts of the contract are:

"Article VI, Section 10. The Company will not let out to contractors the operation, maintenance, repair and normal construction of equipment owned or operated by the Company until the Business Manager of the Local Union has been duly notified and every reasonable effort has been made to provide Company crews for the performance of such work."

"Article IX, Section 2. The Company shall have the right to determine how many men it will employ or retain and shall also have the right to exercise full control and discipline in the interest of good service and the proper conduct of its business, subject to the terms and provisions of this Agreement."

and Article I, Section 2.

The plaintiffs are in effect asking for specific performance at this time. The plaintiffs' request is stated on page 6 of their brief as follows: "An order by this Court directing the Company to assign `Interference Work' and the Tree Trimming operations pursuant to Article VI, Section 10 and Article I, Section 2 of the Contract and setting out what is sufficient notice and reasonable effort to provide Company Crews would not be difficult. This is the immediate relief the Plaintiffs request."

The collective bargaining contract would seem to generally leave up to the Company the determination of how many men it will employ or retain and the contract appears to be silent as to any guarantee of overtime. Such an interpretation, however, may be inconsistent with Article VI, Section 10, where the Company has agreed not to let out maintenance, repair, and normal construction of equipment until every reasonable effort has been made to provide Company crews for the performance of such work. The contention of Iowa Power and Light Company is that they are not required by Article VI, Section 10, to increase their work force nor to give the present crew overtime.

Normally the proof required for specific performance must be clear and convincing and the breach of the contract must be certain. Also the party asking for specific performance must show a clear willingness to comply with all provisions of the contract. The provision of the contract in question in this case has been considered by many courts. This strict rule on proof of specific performance seems to be somewhat relaxed in labor cases, at least where specific performance of the arbitration clause is concerned. See United Steelworkers v. Warrior & Gulf Navigation, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; MacNeish v. New York Typographical Union No. 6, D.C., 205 F.Supp. 558. Where there is no arbitration clause, the question of enforcing the contract is for the court. International Union, United Auto etc. v. Webster Electric Co., 7 Cir., 299 F.2d 195. The standards of interpretation on the clause of the contract has been the source of much litigation. In United Steelworkers of America v. New Park Mining Co., 10 Cir., 273 F.2d 352, the court said:

"And so, there is good authority for saying that whether the Company actually quit business or merely decided to subcontract its work by a leasing arrangement, it had the absolute right to do so, even though its action brought the contract to an end before its expiration date. But we think this construction of a collective bargaining contract ignores the covenant of good faith and fair dealings which must inhere in every collective bargaining contract if it is to serve its institutional purposes.

"In most instances, where the parties have committed the interpretation and

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