Metropolitan Paving Co. v. International U. of Op. Eng.

• Decision Date: 08 April 1971
• Docket Number: 42-70.,No. 41-70,41-70
• Citation: 439 F.2d 300
• Parties: METROPOLITAN PAVING COMPANY, Inc., a corporation, Gill Construction Company, a corporation, and Tecon Corporation, a corporation, formerly joint venturers doing business as Metropolitan-Gill-Tecon, Plaintiffs-Appellees, Cross-Appellants, v. The INTERNATIONAL UNION OF OPERATING ENGINEERS, an unincorporated association, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

439 F.2d 300 (1971)

METROPOLITAN PAVING COMPANY, Inc., a corporation, Gill Construction Company, a corporation, and Tecon Corporation, a corporation, formerly joint venturers doing business as Metropolitan-Gill-Tecon, Plaintiffs-Appellees, Cross-Appellants, v. The INTERNATIONAL UNION OF OPERATING ENGINEERS, an unincorporated association, Defendant-Appellant, Cross-Appellee.

Nos. 41-70, 42-70.

United States Court of Appeals, Tenth Circuit.

March 9, 1971.

Rehearing Denied April 8, 1971.

COPYRIGHT MATERIAL OMITTED

L. N. D. Wells, Jr. and Otto B. Mullinax, of Mullinax, Wells, Mauzy & Collins, Dallas, Tex. (J. Albert Woll, Washington, D. C., with them on the brief), for appellant.

Bert Barefoot, Jr. and John A. Claro, Oklahoma City, Okl. (Edward H. Moler, Oklahoma City, Okl., with them on the brief), for appellees.

Before PICKETT, HILL, and SETH, Circuit Judges.

SETH, Circuit Judge.

The appellees-employers commenced this action for damages against the appellant International Union, alleging a violation of 29 U.S.C. § 187, and 29 U.S. C. § 158(b) (4). The case was tried to a jury which returned a verdict for plaintiffs in the amount of $163,224.29.

The defendant union has appealed asserting lack of jurisdiction, several procedural errors, errors in instructions, and insufficient evidence to support the verdict. The plaintiffs took a cross-appeal, in which they argue that the verdict was not based upon the proper theory and was grossly inadequate.

Plaintiffs- appellees- cross- appellants, Metropolitan Paving Company, Inc., Gill Construction Company, and Tecon Corporation, formerly joint venturers doing business as Metropolitan-Gill-Tecon (MGT), were awarded a contract by the Cities of Aurora and Colorado Springs, Colorado, to lay approximately fifty miles of pipeline near Buena Vista, Colorado. Agreements were entered into by MGT and local affiliates of the four labor unions basic to that job — Teamsters, Laborers, Carpenters, and Operating Engineers.

While the job was in progress, MGT acquired two Barbour-Greene archezodial trenching machines. Members of Local No. 9 of the Operating Engineers began operating the machines, but a disagreement arose at the outset as to whether or not MGT was required to provide, in addition, an oiler or apprentice operating engineer, from the Operators' Union, for each of these machines. MGT took the position that the agreement with the Engineers did not provide for such oilers and refused to assign them. However, MGT did assign to one machine an employee, a member of the Laborers Union, to assist one of the operators for a period of two weeks before the strike.

In protest over the failure of MGT to assign an oiler from its local to these machines, Local No. 9 engaged in a strike from May 12 to June 2, 1965. During that strike the defendant International Union sent its representative, W. E. Magruder, to the jobsite to investigate and attempt to arrange some solution to the dispute. He attended several meetings with members of Local 9 as well as with representatives of both the Union and MGT during the course of the strike. The parties here sharply dispute the nature of Mr. Magruder's role in the strike. Appellant contends that at all times Mr. Magruder was trying to get the men of Local 9 back on the job. Appellees disagree and predicate the liability of International primarily on the ground that Mr. Magruder actually induced or encouraged the strike or its continuation.

It is MGT's position that this strike had an "object" precluded by 29 U.S.C. § 158(b) (4) (D) because it was a strike for the purpose of forcing MGT to reassign work from the Laborers to the Operators, therefore presenting a jurisdictional dispute. MGT contends that it suffered considerable damage because of this strike, and in its cross-appeal urges that the jury was improperly constituted and awarded grossly inadequate damages. Appellees, therefore, request a new trial on the issue of damages alone, while appellant seeks a new trial on all issues as well as a dismissal for lack of federal jurisdiction.

Initially, we must consider appellant's claim that this action should be dismissed for lack of federal jurisdiction. The complaint in this action is based on 29 U.S.C. § 187, the jurisdictional counterpart of 29 U.S.C. § 158(b) (4). Appellant, however, contends that since the complaint alleges a conspiracy between International and Local 9, it does not state a claim under 29 U.S.C. § 158(b) (4).

The statute allegedly violated by International does not, by its terms, proscribe conspiracy. Appellant's argument is that the complaint does not as the statute requires allege that International "engaged in," "induced," or "encouraged" the strike. The illegal acts alleged in the complaint are said to have been in furtherance of a conspiracy; however, specific acts were alleged to have been performed by International which the statute prohibits. The allegation of conspiracy under these circumstances is surplusage. Whether or not the plaintiffs are able to show that the defendant engaged in specific acts in violation of the statute goes to the merits of the case, not to jurisdiction. A fair reading of the complaint indicates sufficient allegations of specific acts prohibited by the statute to bring the action within the jurisdiction of the federal court under 29 U.S.C. § 187. Further as to this point, the case was properly submitted to the jury.

Appellant also urges a jurisdictional defect based on the absence of proof that the industry here involved affects interstate commerce. It is not clear from the jurisdictional statute, 29 U.S.C. § 187, or the cases decided thereunder, at what point the question of "affecting commerce" is to be decided. At the trial of this matter, the question of "effect on commerce" was one of the elements of the plaintiffs' case submitted to the jury. In considering whether or not there is federal jurisdiction, however, the procedure is to look to the face of the complaint to see that all jurisdictional requirements have been alleged and that such allegations are not frivolous. Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L.Ed. 939 (1946). The complaint in this action alleges that the industry involved affects commerce in its utilization of equipment and machinery and otherwise, and this is sufficient for these purposes. See National Labor Relations Board v. Denver Building & Construction Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284 (1951). The jury finding of an "effect on interstate commerce" concerns plaintiffs' proof of essential elements for recovery under 29 U.S.C. § 158. We must conclude that this action was properly within the jurisdiction of the trial court.

Appellant raises two objections based on the requirements of the pertinent statute, 29 U.S.C. § 158(b) (4) (D). It contends that the employer here was not engaged in interstate commerce and that it was facing no jurisdictional dispute or that an object of the strike was at least in part an attempt to force an employer to reassign certain work. Both of these issues were submitted under suitable instructions to the jury. The jury found that the industry here was engaged in commerce and that the strike had a proscribed object. These facts and the dispute surrounding them were one of the central issues of the trial. The record shows that the matters were fully developed. There is a wide difference between the parties as to whether there was a jurisdictional dispute. The record however demonstrates that an employee of a union other than the Engineers Union was performing the duties as a helper to the operator of the trencher at the time the strike began and when the Engineers took the strike route to force the assignment of a member of their union to the position. The record also shows informal meetings between members of the Laborers Union and the Engineers Union over the position of the helper. In brief there was sufficient evidence to support the determination made by the jury on this issue. The record further shows that the instructions given by the trial court on this issue are accurate statements of the law. We find no error on this issue.

The evaluation of the activities of Mr. Magruder, the representative of appellant, as these acts related to the then state of affairs on the jobsite and at the union meetings was properly for the jury. There was testimony that Mr. Magruder had said at a union meeting that there would "have to" be an oiler on the trencher, and thereby to cause the reassignment of a job. There was also testimony that he had told the leaders of the local to have a "good" strike if they were going to have one. This, and the related evidence including the beginning of threatened violence and the presence of weapons among the strikers at the site, was sufficient basis for the jury's action.

These are fundamental fact issues which again were properly resolved by the jury under proper instructions. Little more need be said under these circumstances.

Appellant has also challenged as improper the removal of one of the jurors and substitution of an alternate by the court just as the jury prepared to deliberate. The removal was based on a report from the bailiff that he had heard the juror in question remark that he did not want to be on the jury and that he had some fear for his job, since he was a union member. The juror was removed immediately by the court and the alternate juror replaced him. Appellant urges that the action of the court in summary fashion deprived it of a properly constituted jury. As appellant points out, the appellate courts have a responsibility to see that jury selection procedures are properly adhered to. Abbott v. Mines, 411 F.2d 353 (6th Cir. 1969). Furthermore, as noted in that case, the controlling issue is not whether a party was actually prejudiced by the resultant jury, but rather whether the adopted procedure tends to weaken the institution of a jury trial....