Mobile Mechanical Contractors Ass'n, Inc. v. Carlough, 441

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before WISDOM, CLARK and RONEY; CLARK; PER CURIAM
• Citation: 566 F.2d 1213
• Parties: 96 L.R.R.M. (BNA) 2560, 97 L.R.R.M. (BNA) 2601, 82 Lab.Cas. P 10,162, 83 Lab.Cas. P 10,336 MOBILE MECHANICAL CONTRACTORS ASSOCIATION, INC., Plaintiff-Appellee-Appellant, v. Edward J. CARLOUGH, Individually and as the representative of all members of the Sheet Metal Workers' International Association, K. C. Doby, Jimmy A. Hinkle, Sheet Metal Workers' International Association, an unincorporated association, Sheet Metal Workers' International Association Local Union, an unincorporated association, Defendants-Appellants-Appellees, and A. Bruce McKenzie, John R. Falvella and Edward J. Carlough, in his capacity as a Trustee of the National Stabilization Agreement of the Sheet Metal Industry Trust Fund, Defendants-Appellees.
• Docket Number: No. 76-1404,No. 441,441,76-1404
• Decision Date: 03 October 1977

Page 1213

566 F.2d 1213 96 L.R.R.M. (BNA) 2560, 97 L.R.R.M. (BNA) 2601,
82 Lab.Cas. P 10,162, 83 Lab.Cas. P 10,336 MOBILE MECHANICAL CONTRACTORS ASSOCIATION, INC.,
Plaintiff-Appellee-Appellant,
v.
Edward J. CARLOUGH, Individually and as the representative
of all members of the Sheet Metal Workers' International
Association, K. C. Doby, Jimmy A. Hinkle, Sheet Metal
Workers' International Association, an unincorporated
association, Sheet Metal Workers' International Association
Local Union No. 441, an unincorporated association,
Defendants-Appellants-Appellees,
and
A. Bruce McKenzie, John R. Falvella and Edward J. Carlough,
in his capacity as a Trustee of the National
Stabilization Agreement of the Sheet
Metal Industry Trust Fund,
Defendants-Appellees. No. 76-1404. United States Court of Appeals,
Fifth Circuit. Oct. 3, 1977.
Rehearing Denied Jan. 30, 1978.

Page 1215

Donald W. Fisher, Toledo, Ohio, Roderick P. Stout, Mobile, Ala., for Carlough and Unions.

Harry Huge, Rogovin, Stern & Huge, Joel I. Klein, Washington, D. C., Jerome A. Cooper, Birmingham, Ala., for McKenzie, Falvella and Carlough.

Willis C. Darby, Jr., John Richard Carrigan, Mobile, Ala., for Mobile Mechanical Contractors.

Thomas Canafax, Jr., Chicago, Ill., Lawrence D. Ehrlich, Russell, Kan., Gerard C. Smetana, Chicago, Ill., for amicus curiae Central Fla. Sheet Metal Contractors' Assoc. Inc.

Appeals from the United States District Court for the Southern District of Alabama.

Before WISDOM, CLARK and RONEY, Circuit Judges.

CLARK, Circuit Judge:

In July of 1974, during collective bargaining negotiations, Sheet Metal Workers' International Association Local Number 441 (Local 441) presented Mobile Mechanical Contractors Association (Mobile), an employers association, a list of demands including, among others, that Mobile agree on behalf of the employers it represented to pay money to the National Stabilization Agreement of the Sheet Metal Industry Trust Fund (SASMI), an unemployment benefits trust. After Mobile refused to accept Local 441's demand, on July 16, 1974, Local 441 went on strike against employers which had designated Mobile as their exclusive bargaining agent. Mobile subsequently brought this action in the district court under section 302(e) of the Labor Management Relations Act of 1947, as amended, ¹ 29 U.S.C. § 186(e) against the SASMI defendants ² and the union defendants. ³ Mobile's complaint sought a declaratory judgment as to the lawfulness under section 302 of Local 441's demand for the employer contributions to SASMI and preliminary and permanent injunctive relief under section 302(e) against Local 441's demand and subsequent strike.

Section 302(a) prohibits payments by employers, or representatives of employers, to representatives of employees except under the limited circumstances set forth in section 302(c), which include specified payments to unemployment benefit trusts which comply with the provisions of the Act. Section 302(b) also prohibits requests and demands for payments that violate section 302(a). If SASMI does not satisfy the requirements of section 302(a), Local 441's demands and subsequent strike in furtherance of its demands are proscribed by section 302(b).

After a hearing on October 11, 1974, the district court issued a preliminary injunction against Local 441's continuation of the strike for SASMI contributions. On October 16, 1974, Mobile and Local 441 successfully negotiated a new 2-year collective bargaining agreement which contained no explicit references to SASMI.

After defendants filed their answer, Mobile amended its complaint to add a third cause of action seeking damages for alleged structural violations of Section 302(c), still asserting jurisdiction as to this claim solely under Section 302(e). ⁴ Mobile's amendment also added as fourth and fifth causes of action two different state law damage claims asserted under the district court's diversity jurisdiction, 28 U.S.C. § 1332, and

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its pendent jurisdiction. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). ⁵ The SASMI trustees subsequently met and adopted amendments to the SASMI agreement and declaration of trust. These amendments substantially changed portions of the trust agreement that Mobile had attacked in its initial complaint.

Mobile then moved to file a supplemental complaint dealing with the threat of an agent of a Sheet Metal Workers' International Association (Metal Workers) local in Louisiana to strike an employer represented by Mobile for failure to pay money to SASMI, as amended. The district court granted the motion on April 4, 1975. On July 22, 1975, the district court dismissed the SASMI defendants "in the interest of justice."

On December 29, 1975, the district court entered a judgment pursuant to Federal Rule of Civil Procedure 54(b) and held, among other things: (1) Mobile's attack upon the validity of SASMI subsequent to October 16, 1974, and its request for injunctive relief against SASMI after that date were moot; (2) leave for Mobile to file its supplemental complaint was withdrawn; (3) from its inception through October 16, 1974, SASMI violated section 302, and, therefore, the demands of the union defendants and their subsequent strike during this period were declared unlawful. ⁶

THE MOOTNESS OF ISSUES RAISED AGAINST POST-OCTOBER 16, 1974 SASMI

The district court's preliminary injunction against the union defendants was grounded on the determination that SASMI was an unlawful trust under section 302 as amended; 29 U.S.C. § 186. The district court found that the new 2-year collective bargaining agreement negotiated by Mobile shortly after entry of this order did not contain any provisions requiring Mobile or any of the employers which it represents to pay money to SASMI. On December 5, 1974, the SASMI trustees convened and extensively amended the procedures for the selection of union and employer trustees. The business manager of Local 441 testified that the members of Local 441 did not want to strike over SASMI but that if they ever did, he would advise them against such a strike and his recommendation would be followed. Based upon this testimony, the district court found that there was no reasonable likelihood that Local 441 would renew its demand for SASMI at the expiration of its then effective collective bargaining agreement and concluded that Mobile's attack on the lawfulness of SASMI at any time subsequent to October 16, 1974, was moot. The district court also refused to grant Mobile's request for a permanent injunction against the requests and demands of the union defendants to pay or agree to pay money to SASMI on the ground that the necessity for such relief was moot. The collective bargaining agreement which immediately followed the district court's preliminary injunction has since expired, and Mobile and Local 441 have entered into another round of collective bargaining negotiations. Neither party has indicated that any demands are being made by Local 441 upon Mobile to agree to contribute funds to SASMI.

The district court's entry of a preliminary injunction against Local 441's strike in support of SASMI and its finding that the SASMI Trust Agreement violated the equal representation requirement under section 302(c)(5)(B) obviously spurred the SASMI

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trustee's subsequent amendment of the trust agreement in this regard. However, Mobile now seeks a determination that the SASMI trust as amended is invalid. This is so even though the employers it represents are not obligated to fund the amended trust and the union defendants have made no demands that Mobile or the employers it represents contribute to it. The abstract possibility that Mobile may suffer injury is not enough. Mobile must demonstrate it has sustained or is immediately in danger of sustaining some direct injury as a result of the defendant's actions. O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974), quoting Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923).

Mobile concedes that speculative injury is insufficient to create a case or controversy within the terms of Article III of the Constitution but argues that the critical consideration in ascertaining mootness is the likelihood of recurrence of the allegedly...