Waco Scaffolding Co. v. LOCAL 845, UNITED BROTH.

• Decision Date: 15 February 1984
• Docket Number: Civ. A. No. 82-1766.
• Citation: 585 F. Supp. 102
• Parties: WACO SCAFFOLDING COMPANY v. LOCAL 845, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA and The Metropolitan District Council of Philadelphia and Vicinity of the United Brotherhood of Carpenters and Joiners of America.
• Court: U.S. District Court — Eastern District of Pennsylvania

585 F. Supp. 102

WACO SCAFFOLDING COMPANY v. LOCAL 845, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA and The Metropolitan District Council of Philadelphia and Vicinity of the United Brotherhood of Carpenters and Joiners of America.

Civ. A. No. 82-1766.

United States District Court, E.D. Pennsylvania, Civil Division.

February 15, 1984.

COPYRIGHT MATERIAL OMITTED

Kenneth L. Oliver, Jr., Philadelphia, Pa., for plaintiff.

William J. Einhorn, Philadelphia, Pa., for defendant.

MEMORANDUM OPINION

CAHN, District Judge.

Waco Scaffolding Company ("Waco"), the plaintiff, seeks money damages from the defendants, two labor organizations, pursuant to Section 303 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 187 ("Section 303").¹ Waco contends that agents of the defendants, acting within the scope of their employment, committed unfair labor practices as defined in the LMRA while plaintiff was engaged in performing a subcontract at the B.P. Oil Refinery in Marcus Hook, Delaware County, Pennsylvania. The matter has been tried before me without a jury. Post trial briefing and argument have been completed. I make the following:

FINDINGS OF FACT

1. Waco Scaffolding Company, the plaintiff, is a Pennsylvania corporation with its principal place of business in Philadelphia,

Pennsylvania. It is engaged in the business of selling, renting and installing steel scaffolding used in industrial construction.

2. (a) Local 845, United Brotherhood of Carpenters and Joiners of America ("Local 845"), a defendant, is an unincorporated labor organization of "Carpenters of the Vicinity of Delaware County, Pennsylvania".

(b) The Metropolitan District Council of Philadelphia and Vicinity of the United Brotherhood of Carpenters and Joiners of America ("MDC"), a defendant, is an unincorporated labor organization of carpenters' "Local Unions in the vicinity of Philadelphia, Pennsylvania, including the counties of Philadelphia, Bucks, Montgomery, Chester and Delaware, ...."

3. Local 8, United Brotherhood of Carpenters and Joiners of America ("Local 8") is an unincorporated labor organization comprised of "the carpenters of the vicinity of Philadelphia, Bucks, Montgomery, Delaware and Chester counties". In the past, Local 8 has regularly supplied carpenters for Waco in the geographical area of the MDC.

4. Local 845 and Local 8 are both local unions within the jurisdiction of the MDC and as such the members of both locals are permitted to work as union carpenters in the five county metropolitan area of Philadelphia.

5. (a) Earl R. Henninger is a member of Local 845;

(b) Earl R. Henninger is employed as a business representative of the MDC, having been elected by the membership of Local 845 and assigned to a territory in Delaware County which encompasses the jurisdiction of Local 845;

(c) Earl R. Henninger is held out by Local 845 as its business representative;

(d) During the performance by Waco of its subcontract at the B.P. Oil Refinery ("Refinery") in Delaware County, Pennsylvania, Earl R. Henninger was specifically authorized by the MDC to act as an employee and agent concerning labor activities at the Refinery work site;

(e) During the performance by Waco of its subcontract at the Refinery work site, Earl R. Henninger was impliedly authorized by Local 845 to act as an employee and agent concerning labor activities at the Refinery work site.

6. (a) William F. McGugan is a member of Local 8 and is employed as a business representative of the MDC, although elected from the membership of Local 8;

(b) William F. McGugan was authorized to act as an employee of MDC concerning labor activities at the work site where the instant dispute began.

7. Edward Coryell is the president and business manager of the MDC and is considered to be its chief executive officer. He supervises the activities of Earl R. Henninger and William F. McGugan.

8. All of Waco's hourly-paid construction employees are members of a labor union (most are members of Local 8), and are subject to the provisions of collective bargaining agreements to which Waco is a party.

9. Waco is an associate member of the General Building Contractors Association ("GBCA"), and is a party to a collective bargaining agreement entered into by GBCA and MDC. This agreement is hereinafter referred to as the "GBCA Agreement".

10. Waco is also bound by a collective bargaining agreement between United Brotherhood of Carpenters and Joiners of America and the National Erectors' Association which covers work involving the erection of scaffolding. This agreement is hereinafter referred to as the "NEA Agreement".

11. Neither the GBCA Agreement nor the NEA Agreement require the employment of non-working foremen at a work site, and neither agreement mandates that any specific procedure be followed when hiring union carpenters.

12. (a) On or about March 1, 1982, Waco entered into a construction subcontract with Henkels & McCoy, Inc. Waco agreed to provide and erect steel scaffolding needed by Henkels & McCoy to complete maintenance work at the Refinery. Time was of the essence in the performance of this contract because the Refinery had to cease operations while the maintenance work was being performed;

(b) The parties agree that the NEA Agreement is applicable to plaintiff's work at the Refinery job site.

13. Earl R. Henninger ("Henninger") knew that Waco's normal practice was to hire union carpenters from Local 8. Beginning in March of 1982, Henninger insisted that Waco not be permitted to follow its normal practice in regard to hiring union carpenters. Instead, Henninger demanded that Waco be required to employ Local 845 carpenters, due to the high unemployment rate for union carpenters in Delaware County. Henninger threatened that labor difficulties would befall Waco unless his demand was met.

14. Beginning in March of 1982 and through completion of Waco's subcontract at the Refinery, Francis Rudolph ("Rudolph") was steward for Local 845 at the job site and was appointed as such by Henninger. During this time period, Rudolph refused to allow Waco foremen to perform carpentry work at the Refinery job site. Rudolph threatened that Local 845 members would engage in work slowdowns if Waco foremen performed carpentry work.

15. Waco complained to Edward Coryell ("Coryell"), president of the MDC, that Waco's foremen were being prevented from performing work at the job site, in violation of both the GBCA and NEA collective bargaining agreements. Coryell agreed that neither contract prevented the foremen from working on the job site and stated that the problem would be resolved in Waco's favor. However, the Waco foremen were never permitted to work at the Refinery work site in other than a supervisory capacity. Testimony to the contrary is not persuasive.

16. During the Refinery construction project, other labor difficulties arose and other threats were made by Henninger, all in an attempt to secure employment for members of Local 845 to the exclusion of members of other carpenter locals within the jurisdiction of the MDC. In addition, racial problems occurred at the job site when white members of Local 845 shouted racial epithets at some of Waco's black employees who were members of Local 8.

17. On March 20, 1982, members of Local 845 whom Henninger referred to the Refinery project walked off the job site, protesting Waco's decision to lay off other Local 845 union carpenters.

18. The hourly rates for carpenter foremen, including base pay, fringes, taxes, insurance, overhead and profit are: $31.57 per hour for regular time; $43.66 per hour for time and one-half time; and $55.72 per hour for double time.

19. The hours foremen worked on the job are: 792 hours of regular time; 430 hours of time and one-half time; and 70 hours of double time.

20. The total cost for foremen time on the job is $47,677.64.

21. The hourly rates for carpenters at the Refinery job site, including base pay, fringes, taxes, insurance, overhead and profit are: $27.00 per hour for regular time; $43.66 per hour for time and one-half time; and $55.72 per hour for double time.

22. Waco budgeted 3,800 hours of regular time and 1,200 hours of time and one-half time as the amount of time union carpenters would be required to work at the Refinery job site.

23. The hours union carpenters worked on the Refinery job site in excess of the hours budgeted for the job site are: 255.5 hours of regular time; 578.5 hours of time and one-half time; and 297.5 hours of double time.

24. The total over-budget cost for carpenter time on the job is $42,583.00.

25. After completion of its maintenance work at the Refinery, Henkels & McCoy informed Waco that Henkels & McCoy had performed additional work on the job site, which work had been originally assigned to Waco.

26. Henkels & McCoy advised Waco that Henkels & McCoy would deduct or "back charge" $77,000.00 from Waco's contract fee.

27. Waco settled the Henkels & McCoy "back charge" claim by paying $15,000.00 to Henkels & McCoy.

DISCUSSION

A. Arbitrability of Dispute

Defendants initially argue that Waco has failed to exhaust the contractual remedy of grievance arbitration. Article VI of the NEA Agreement states, "all grievances, other than those pertaining to jurisdiction or general wage rate on any work governed by this Agreement, shall be handled in the following multi-step procedure culminating in binding arbitration...." Plaintiff urges that its cause of action relates to a jurisdictional dispute between rival classes of union employees. Waco claims that Article VI of the NEA Agreement specifically exempts jurisdictional disputes from contractually-mandated grievance arbitration. Defendants contend that this seemingly broad exclusion must be narrowly construed due to language in Article I(2) of the NEA Agreement referring inter-union jurisdictional disputes to the general presidents for resolution.²

Relying on the language of Article I(2), defendant...