Sheet Metal Con. Ass'n v. Sheet Metal Wkrs. Int. Ass'n, 15355.

• Decision Date: 05 November 1957
• Docket Number: No. 15355.,15355.
• Parties: SHEET METAL CONTRACTORS ASSOCIATION OF SAN FRANCISCO, a Corporation, et al., Appellants, v. SHEET METAL WORKERS INTERNATIONAL ASSOCIATION et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

248 F.2d 307 (1957)

SHEET METAL CONTRACTORS ASSOCIATION OF SAN FRANCISCO, a Corporation, et al., Appellants, v. SHEET METAL WORKERS INTERNATIONAL ASSOCIATION et al., Appellees.

No. 15355.

United States Court of Appeals Ninth Circuit.

September 16, 1957.

Rehearing Denied November 5, 1957.

Roth & Bahrs, San Francisco, Cal., for appellant.

Gilbert, Nissen & Irvin, Robert W. Gilbert, Los Angeles, Cal., for appellee.

Before DENMAN, POPE and BARNES, Circuit Judges.

POPE, Circuit Judge.

This action was brought by the Sheet Metal Contractors Association of San Francisco and by all 28 members of that association, against the Sheet Metal Workers International Association, Local Unions Nos. 104 and 75 of that association, and the Joint Industry Board of the Heating and Sheet Metal Industry of Marin, Sonoma, Mendocino, Lake, Napa and Solano Counties, California.

The complaint alleged violation and threatened violation of the provisions of subdivisions (a) and (b) of § 302 of the Labor Management Relations Act, 1947, (29 U.S.C.A. § 186(a) and (b) ). The first of these subdivisions makes it unlawful for any employer to pay money or other thing of value to any representative of any of his employees who are employed in an industry affecting commerce; the second forbids any such representative to receive or accept any such money or thing of value.¹

The complaint predicated jurisdiction in the court below upon the provisions of subdivision (e) of § 302 which recites that district courts shall have jurisdiction to restrain violations of that section.²

The members of the plaintiff association are, as the name of the Association indicates, contractors and employers of labor in the sheet metal industry. This multi-employer group was formed for the purpose of collective bargaining with their employees. The latter are members of the defendant Local Union 104 which is the union of the Sheet Metal Workers International Association having jurisdiction of the employees in that industry in the City and County of San Francisco. The association has an agreement, executed on behalf of its members, also plaintiffs here, with Local Union 104 covering rates of pay, rules and working conditions of all employees in the San Francisco area engaged in the defined sheet metal work. The members of the Association occasionally undertake contracts for the performance of sheet metal work in the nearby counties of Marin, Sonoma, Mendocino, Lake, Napa and Solano, all north of San Francisco. In the period between July 1, 1955 and June 22, in the following year, eight of the plaintiff employers named undertook to perform jobs or contracts in those northern counties or some of them employing thereon their employees, members of Local 104.

During the same period a similar association of contractors, known as Associated Heating Sheet Metal Contractors, Inc., representing sheet metal contractors doing business in those northern counties other than San Francisco, had a collective bargaining agreement with Local Union No. 75, which was the bargaining representative of their employees. Both the collective bargaining agreement covering the San Francisco employers and employees (the agreement with Local 104) and the collective bargaining agreement covering the employers and employees in the six northern counties (with Local No. 75), were similar in terms, and, in some respects, identical. They were identical in making provision for wage scales and working conditions for employees hired outside of the territory of the local union to perform or supervise work performed within the area covered by the local union's contract. Thus § 4 of Article VII in each contract provided as follows: "When sent by the Employer to supervise or perform work specified in Article I of this Agreement outside of the jurisdiction of the Union and within the jurisdiction of another Local Union affiliated with Sheet Metal Workers' International Association, journeymen sheet metal workers covered by this Agreement shall be paid at least the established minimum wage scale specified in Section 1 of this Article, but in no case less than the established wage scale of the Local Union in whose jurisdiction they are employed, * * *"³

It is thus apparent that these collective bargaining agreements contemplated what actually transpired, namely, that occasionally San Francisco employers would take their employees into the other counties named, and there fulfill contracts or jobs in those areas. It will be noted from the language quoted from § 2 in the last footnote that employees moving to an area of established higher wage scales would get that higher wage scale. Under the contract of Local 104, for instance, its members working in the area of Local Union 75 would be entitled to the wage scale and working conditions of the latter union.

The complaint relates to what is alleged happens or is threatened will happen to plaintiff employers when they move their work forces into the area of Local Union 75 as contemplated by the standard provisions common to both union contracts. It appears from the complaint, as supplemented by the stipulation of the parties, that the associated contractors of these six northern counties made and entered into a so-called "trust agreement" with Local Union No. 75 whereby there was set up and established a "Joint Industry Board of Heating and Sheet Metal Industry of Marin, Sonoma, Mendocino, Lake, Napa and Solano Counties". As above noted, the Board was named as a defendant.

The agreement establishing the Joint Industry Board, in addition to specifying the purposes of the agreement, the functions of the Board, the mode of selection of the Board and its officers, and the manner in which the Board should act, was keyed into the collective bargaining agreement of Local No. 75 through addenda thereto which provided among other things that any disputes arising out of this latter agreement should be referred to the Joint Industry Board; that the provisions for settling of disputes under the collective bargaining agreement should be those stated in the so-called trust agreement. The addenda further recited that each employer should contribute to the Joint Industry Board Fund the sum of 2½ cents per hour worked by all journeymen and apprentices who were employed on the work described in the union agreement. The trust agreement was expressly made a part of the union agreement.

When the eight plaintiff employers above mentioned took their employees to the jobs in the six northern counties, demands were made upon them that they pay the 2½ cents an hour for every hour worked by each of their employees performing work in those counties. The gist of the complaint is that "defendants are attempting to cause and compel plaintiffs to pay and deliver money and other things of value to defendant Joint Industry Board", and will, unless restrained by the court, "cause the aforesaid employees of plaintiffs to strike and cease working" unless such money be paid. It is alleged that pursuant to and in compliance with the demands and threats of defendants, the eight plaintiff employers mentioned have paid certain sums listed in the complaint to the Joint Industry Board. It was stipulated that defendant Local 75 threatened to cause and induce the employees of these plaintiffs to strike and refuse to perform services in those counties unless the 2½ cents per hour were paid; and that thereafter those plaintiff employers did pay such sums into the Joint Industry Board Fund.

It is plaintiffs' claim that these payments thus induced constituted payments of money to a representative of the plaintiffs' employees made unlawful by subdivision (a) of § 302, and that such representative thereby accepted such money in violation of subdivision (b). In consequence, the plaintiffs, appellants here, say that they are entitled to an injunction to restrain such violations of § 302 under the provisions of subdivision (e).

Both plaintiffs and defendants moved for summary judgment based upon the pleadings and the stipulation of facts above mentioned. The motion of the defendants was granted and summary judgment entered for them. This appeal followed. That judgment was based upon the court's determination disclosed in its memorandum opinion that, upon the facts disclosed, the Joint Industry Board, or the union members thereof, were not representatives of the employees within the meaning of § 302. A consideration of the merits of the appeal calls for a review of that determination.

Before entering upon the merits of the case we must inquire as to our jurisdiction and that of the trial court to entertain the cause. The allegation of the complaint designed to disclose jurisdiction is as follows: "Plaintiffs are engaged in an industry affecting commerce within this district and plaintiffs are employers of employees engaged in an industry affecting commerce within the meaning of § 302, LMRA 1947." The stipulation of facts recites as follows: "During the calendar year 1955 plaintiff employers collectively made direct purchases of goods and materials from outside the State of California of value in excess of $500,000; and that plaintiff employers collectively made purchases in California through local dealers of goods and materials originating outside the State of California of a value in excess of $1,000,000; and plaintiffs collectively rendered services and furnished materials outside the State of California having a value of approximately $125,000." This, it will be noted, refers to all 28 employer plaintiffs. There is no separate stipulation or allegation as to the quantity of purchases or sales of goods or materials or of services rendered and materials furnished outside the State of California by the eight employers who have been compelled to pay the 2½ cents per hour about which complaint is made. It is suggested that for aught that appears here the amount of such interstate commerce of the eight...