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LOCAL 33, INTL. HOD CARRIERS' v. MASON TENDERS DIS

July 14, 1960

LOCAL 33, INTERNATIONAL HODCARRIERS BUILDING AND COMMON LABORERS' UNION OF AMERICA, Plaintiff,
v.
MASON TENDERS DISTRICT COUNCIL OF GREATER NEW YORK and Local 23, International Hod Carriers Building and Common Laborers' Union of America, Defendants



The opinion of the court was delivered by: RYAN

Following an adverse decision by defendant Mason Tenders District Council and while an appeal to the General Executive Board of the International was pending, plaintiff filed this suit for a declaratory judgment and an injunction under Section 185, Title 29 U.S.C.A., § 301, Taft-Hartley Act; the Labor Management Reporting and Disclosure Act of 1959, Public Law 86-257, 29 U.S.C.A. § 401 et seq. and Sections 1331, 2201 and 2202, Title 28 U.S.C.

The complaint alleges that plaintiff Local 33 is a local labor union in the building trade in the Counties of Bronx and New York, and that it, defendant Local 23 and three other locals in the same craft and counties are affiliated with and constitute the defendant Mason Tenders District Council, a labor organization under the Constitution of the International Hod Carriers Building and Common Laborers' Union of America, which represents its members in negotiating with employers. The complaint further alleges that there is a custom and practice among the five locals that the particular local to which the first two men on a construction job belong has jurisdiction over such job and that this was so provided in the collective bargaining agreement between District Council representing the locals and employer, as well as an agreement that all disputes over this custom are to be determined by the Council. It is then alleged that on the Zeckendorf Hotel construction job, located at 33 West 51 Street, New York City, the first two men on were Local 33 men, that although plaintiff had obtained jurisdiction of the job by priority of this employment, defendant Local 23 made claim to it, and that the President of the District Council, motivated by bias and prejudice, awarded the job to Local 23; that at a hearing requested by plaintiff the Council, acting in aid of Local 33, reaffirmed the award of the job to defendant Local 33 contrary to the facts and merit of plaintiff's position, that it denied plaintiff the right to have its counsel and stenographer present and that it has prevented plaintiff from prosecuting a timely appeal to the General Executive Board. As a result of the defendant's conduct, plaintiff avers that it will be destroyed and its members deprived of employment. It, therefore, asks that this Court declare that plaintiff, by virtue of the custom and agreement, is entitled to preferment in employment on this site and to a fair administration of this custom by defendant Council, that the President and other biased officials of Defendant Council be declared disqualified to act in such matters, and that defendant local be enjoined from claiming jurisdiction over the job and defendant Council from representing that it has made a determination in favor of defendant against plaintiff.

Plaintiff has moved for summary judgment or, in the alternative, for a temporary injunction, urging that it has exhausted all remedies available to it within its union organization because its time to appeal from the District Council's decision to the International through no fault or negligence of it has expired, that the Executive Board may not enlarge the time for such appeal, as provided by the Constitution, that there is no fact in dispute and that injunctive relief may issue under Section 301, 29 U.S.C.A. § 185, since this is a suit for violation of contract between two labor organizations as defined by the statute, over which this Court has jurisdiction. Its claim of need for injunctive relief is that, in the near future, substantial mason tenders' work is to begin on the job site.

 Both defendants have moved to dismiss the complaint on the ground that the Court lacks jurisdiction because plaintiff has failed to exhaust its remedies within the union. Defendant Council also urges that the suit does not fall within Section 301 in that the agreement here sued on is neither a written contract nor collective bargaining agreement and that the locals are not labor organizations under the statute; that the Labor Act of 1959 cannot apply since the dispute preceded it, that since there is no diversity of citizenship and jurisdictional amount or federal question the suit may not be maintained either under Sections 1331 or 2201 and 2202, and that jurisdiction lies exclusively with the National Labor Relations Board. Defendant Local in addition opposes plaintiff's motion on the ground that there are numerous questions of fact concerning the custom or practice, that Norris-LaGuardia, 29 U.S.C.A § 101 et seq. prohibits the granting of an injunction and that in any event plaintiff has not been damaged.

 The background leading up to the suit is this:

 On September 8, 1959, plaintiff addressed a letter petition to the District Council, relating that an agreement entered into between the District Council and building contractors to run from July, 1957 through June 30, 1960, provided that 'where the Mason Tenders are employed on a job, the second man employed shall be a shop steward,' *fn1" that on August 3, 1959, the first two men employed by the Fuller Construction Co. were members of plaintiff local, that in accordance with their practice, plaintiff local's business agents visited the operation and appointed one of these men as shop steward; that subsequently Local 23 claimed the right to appoint the shop steward; and that the President of the District Council, Graziano, had called a meeting of the five locals at which defendant local had presented its claim to the job.

 In the petition, plaintiff requested a trial of this grievance and a decision and determination by the Executive Board in accordance with the Constitution of the District Council. Apparently Graziano, purporting to act on behalf of the District Council, had ruled in favor of defendant local and it was from that decision that plaintiff was appealing.

 In response, a meeting of the Executive Board was held on September 24, 1959, at which the two locals presented their claims. It was the position of defendant local that it had priority by virtue of the employment of two of its men on the site several years before while repairing the then existing building prior to its demolition at which time it had appointed a shop steward.

 On October 13, 1959, the Executive Board met and gave its unanimous decision, holding that since Local 23 had a crew of men at work on the job 'site' and had previously designated a shop steward, it was under established historic practice, the local recognized to appoint a shop steward. The decision pointed out that, in order to avoid jurisdictional conflict, the five locals had developed and followed an understanding that whenever men are first employed on a job and a shop steward had been appointed by a particular local, that local retains control on the appointment of shop stewards on all work on that job even though there be an interval of some years between the initial work and subsequent construction an even though contractors may have changed. The Executive Board stated that it realized that the dispute was brought about through unfamiliarity of the plaintiff local's new business agent with past practice, and that such disputes among business agents had to be eliminated in the common interest. In the interests of the Union, the Board in its opinion recommended that the Chairman call together the business representatives of the two locals 'for the purpose of assuring harmonious relationship and the elimination of any friction' between them and that it also call the five locals to a joint meeting with the purpose of reducing to writing whatever understanding was agreed upon among them.

 On October 16, 1959, Local 33 wrote to the Executive Board of the District Council, expressing its disagreement with the decision and requesting the minutes of the trial and the calling of a meeting of the full membership of the District Council in order that they might give their approval or disapproval of the decision. On October 26, 1959, at a special meeting called for that purpose, all the delegates which consisted of representatives of the locals with the exception of only one of plaintiff's three representatives approved the Executive Board's decision.

 On November 11, 1959, plaintiff wrote the District Council complaining that it had never been officially notified of the Board's decision and requesting such notification and a copy of the minutes in order that it might take an appeal from the decision. On the same day, it wrote the Secretary of the International, complaining that it had not been notified of the Board's decision and had not received the minutes, and stating 'It is our hope and intention that we can be able to press our grievances and obtain justice and satisfaction within the framework of the Constitution and By-Laws of the International Union and the District Council. However, we fear that the tactics which have been used thus far will frustrate us and cause irreparable loss to the members of Local 33.'

 It appears that a copy of the Board's first decision had been sent to plaintiff on October 14, 1959, and acknowledged by it on October 16, 1959.

 On November 23, 1959, plaintiff by letter to the District Council repeated its request for the minutes in order that it might proceed to process its appeal, complaining again that it had never been notified of the decision of the District Council. A copy of this letter was sent to the General Secretary who on December 29, 1959, wrote to plaintiff advising it that its appeal had been set down for January 11, 1960, for a hearing by the General Executive Board, and that it was accepting plaintiff's two letters of November 11 and 23, 1959, as the basis for the appeal and notice thereof and giving plaintiff permission to be represented by counsel and to submit briefs and any further papers and documents it so wished.

 On December 31, 1959, the District Council notified plaintiff that, at the request of the Secretary-Treasurer of the International, it had forwarded to Washington a transcript of the minutes of the Trial Board and that copies of all papers were ...


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