Mason-Rust v. LABORERS'INTERNATIONAL UNION, LOCAL 42

• Citation: 435 F.2d 939
• Decision Date: 31 December 1970
• Docket Number: No. 20070.,20070.
• Parties: MASON-RUST, a Joint Venture, Appellee, v. LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO, LOCAL 42, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

435 F.2d 939 (1970)

MASON-RUST, a Joint Venture, Appellee, v. LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO, LOCAL 42, Appellant.

No. 20070.

United States Court of Appeals, Eighth Circuit.

December 31, 1970.

COPYRIGHT MATERIAL OMITTED

Harry H. Craig, St. Louis, Mo., for appellant.

Thomas M. Hanna, St. Louis, Mo., for appellee.

Before GIBSON and LAY, Circuit Judges, and HUNTER, District Judge.

GIBSON, Circuit Judge.

In this court-tried case the defendant Laborers' International Union of North America, AFL-CIO, Local 42 (hereinafter referred to as Union or Local 42), was found liable for damages occasioned by its jurisdictional strike in violation of § 303 of the Labor Management Relations Act, 29 U.S.C. § 187, as amended. The plaintiff Mason-Rust, a joint venture, was the general contractor under a cost plus a fixed fee basis with the Corps of Engineers, United States Army, for the construction of the Gateway Army Ammunition Plant in St. Louis, Missouri.

The contract between Mason-Rust and the Army called for completion by October 1, 1968. The contract had not been completed at the time of trial in March 1969, and the estimated cost of $7,800,000 had escalated to $22,500,000. This project ran into considerable difficulty due to many causes, this jurisdictional strike being but one of many adverse factors hindering completion and escalating costs of the project. The Union admitted that some of its members had engaged in a strike or refusal to perform services at the Gateway Plant but denied that Local 42 was responsible and denied that plaintiff had suffered any damages.

Part of the contract called for the construction of a quench pit, a "T" shaped recessed installation approximately 55 × 50 feet in area and 12 feet deep. The quench pit would be used to house a metal tank which when filled with oil would cool the 175 mm. shells during the production process. Concrete was poured into construction molds built of plywood to form the walls and floor of the pit. On February 16, 1968, the superintendent instructed the carpenters to start stripping away the plywood forms which formed the molds. The carpenters began work on the next day, which fell on a Saturday. No protest was made of this assignment of work. Then on the following Monday, Bob Tarpin, the steward for Local 42, claimed the work for the laborers of lowering the concrete forms from the scaffold to the bottom of the pit. This request was refused but Local 42 and the carpenters' union were contacted in an effort to resolve the dispute.

On the next day, February 20, because of the laborers' claim, the carpenters stopped stripping the forms with the work about half completed. Efforts to settle the dispute proved fruitless, both unions claiming the right to this type of work. The dispute dragged along until Monday, February 26, when the superintendent told the carpenters to resume stripping the forms the next morning. After the carpenters began stripping the forms, steward Tarpin and Bill Sanders, the assistant steward, came to the superintendent and Sanders threatened to pull all of the laborers off the job if the carpenters did not stop that work immediately. The superintendent told them the work should not be held up any longer. The laborers then picked up their tools and walked off the job with the exception of a crew pouring concrete which remained on the job until the concrete pour was completed a few hours later. This walkout occurred between 8:30 and 9 a.m., with all of the laborers leaving the job including stewards Tarpin and Sanders and four other officials or trustees of Local 42.

Mason-Rust's position at this time on the work assignment in question was that the work had progressed a day and one-half without question, that area practice required assignment of this work to the carpenters and finally that Mason-Rust would incur unnecessary expense if it acceded to Local 42's demand. This project was proceeding under a no-strike contract with the laborers and Mason-Rust filed an unfair labor practice charge against Local 42 with the National Labor Relations Board, claiming the jurisdictional strike constituted a violation of 29 U.S.C. § 158(b) (4) (ii) (D).

A general membership meeting of Local 42 was held on February 28, at which approximately 350 members were present, the majority of whom were laborers who had walked off the job at Gateway. Twenty members constitute a quorum under the Union constitution. A vote was taken at this meeting of those laborers striking the Gateway project and the strikers voted unanimously to stay off the job so long as the carpenters were performing the work in question.

The Laborers International Union on March 4 instructed Anthony Pelker, the business manager and principal officer of Local 42, to have the laborers return to work. Later that day Pelker offered to send the laborers back to work on March 5 if Mason-Rust would drop the NLRB charges. Mason-Rust so agreed and the laborers returned to work on March 5. In a later proceeding, the National Joint Board, to whom Mason-Rust had referred the matter, awarded the disputed work to the carpenters.

The work stoppage delayed or halted every critical phase of the project then in the process of completion and occasioned additional overtime over and above the regular overtime that would ordinarily have been needed to keep the entire project on schedule. There was testimony to the effect and the District Judge so found that it took three weeks of excessive overtime to make up for the work loss occasioned by this jurisdictional strike.

Under 29 U.S.C. § 187(a), § 303(a) of the Labor Management Relations Act, it is unlawful for any labor organization to engage in any activity or conduct prohibited by 29 U.S.C § 158(b) (4), i. e. a secondary boycott or a jurisdictional strike. Under § 303(b), "whoever shall be injured in his business or property" by a secondary boycott or a jurisdictional strike may sue the union therefor within the limitations of 29 U.S.C. § 185 and "shall recover the damages by him sustained and the cost of the suit."

The Union's first contention is that Mason-Rust's complaint should have been dismissed because the NLRB did not first determine in a § 10(k) hearing that the Union's conduct constituted an unfair labor practice under 29 U.S.C. § 158(b) (4) (ii) (D). The Supreme Court expressly rejected this contention in International Longshoremen's Union v. Juneau Spruce Corp., 342 U.S. 237, 244, 72 S.Ct. 235, 96 L.Ed. 275 (1952) (footnote omitted):

"The fact that the Board must first attempt to resolve the dispute by means of a § 10(k) determination before it can move under § 10(b) and (c) for a cease and desist order is only a limitation on administrative power. * * * These provisions, limiting and curtailing the administrative power, find no counterpart in the provision for private redress contained in § 303(a) (4)."

Although § 303 was amended in 1959 so that the unfair labor practices covered were incorporated into § 303 by reference to 29 U.S.C. § 158(b) (4) rather than by express enumeration, we think it clear that the doctrine of Juneau Spruce is valid today. See Plumbers & Fitters, Local 761 v. Matt J. Zaich Const. Co., 418 F.2d 1054, 1056, 1057 (9th Cir. 1969).

The Union next contends it did not call, authorize, participate in, or ratify the strike or work stoppage. The Union admits that there was a jurisdictional dispute at the Gateway project and that it did claim that certain work assigned to carpenters should have been performed by laborers. It also admits that as a result of the assignment of certain work to carpenters by Mason-Rust, laborers employed by Mason-Rust walked off the job on February 27, 1968, and did not return until March 5, 1968.

The District Court concluded that the Union, Local 42, was responsible for the prohibited work stoppage. Several agents of Local 42 in the plant played a significant part in the strike and the stewards had the implied actual authority to call a work stoppage and in fact did call for a cessation of work to back up their demands. These facts have been carefully delineated in the Memorandum Opinion of Judge James H. Meredith, 306 F.Supp. 934 (E.D.Mo. 1969). Under Rule 52(a), "findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." The complaining party has the burden of clearly demonstrating error in the findings. "A finding is clearly erroneous only when the reviewing court on the entire evidence is left with the definite firm conviction that a mistake has been committed." St. Louis Typographical Union No. 8 v. Herald Company, 402 F.2d 553, 557 (8th Cir. 1968). See also United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948).

At the outset, it should be recalled that for purposes of the Labor Management Relations Act, including § 303, the responsibility of a union for the acts of its members and officers is to be measured by reference to the ordinary doctrines of agency. United Mine Workers v. Gibbs, 383 U.S. 715, 736, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). We think the record provides firm support for the trial court's finding that agents of the Union were responsible for the work stoppage. The fact that the laborers walked off the jobsite immediately after steward Sanders' threats and Mason-Rust's refusal to assign the disputed work in accordance with the Union's demands is most persuasive that the members were complying with a strike called by stewards Tarpin and Sanders.

We think the Union is bound by the action of Tarpin and Sanders in calling the strike and that their conduct falls within the scope of a steward's implied actual authority. See N.L.R.B. v. International Longshoremen's Union, Local 10, 283 F.2d 558, 563-564 (9th Cir. 1960). We also think the District Court's alternative holding that the Union...