Drywall Tapers & Pointers of Greater New York, Local 1974 v. Local 530 of Operative Plasterers & Cement Masons International Ass'n

36 F.3d 235
CourtCourt of Appeals for the Second Circuit
DecidedSeptember 9, 1994
DocketNo. 1269, Docket 93-9021
StatusPublished
Cited by2 cases

This text of 36 F.3d 235 (Drywall Tapers & Pointers of Greater New York, Local 1974 v. Local 530 of Operative Plasterers & Cement Masons International Ass'n) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Drywall Tapers & Pointers of Greater New York, Local 1974 v. Local 530 of Operative Plasterers & Cement Masons International Ass'n, 36 F.3d 235 (2d Cir. 1994).

Opinion

MAHONEY, Circuit Judge:

Plaintiffs-appellants Drywall Tapers and Pointers of Greater New York, Local 1974 of I.B.P.A.T., AFL-CIO (“Local 1974”) and John Alfarone, its president, appeal from a judgment entered August 25, 1993 in the United States District Court for the Eastern District of New York, Eugene H. Nickerson, Judge, that dismissed their action for compensatory and punitive damages against Local 530 of Operative Plasterers and Cement Masons International Association (“Local 530”), Michael Canuso, its president, and Louis D. Moscatiello, its secretary-treasurer. The district court concluded that the applicable union agreements regarding settlement of jurisdictional disputes did not authorize an action for damages, and that it would not exercise its equitable powers to award damages.

We affirm the judgment of the district court.

Background

The long and tortured history of this case has been described by this court on several occasions. See Drywall Tapers & Pointers, Local 1974 v. Local 530 of Operative Plasterers and Cement Masons Int’l Ass’n, 954 F.2d 69 (2d Cir.1992) (“Drywall IV”); Drywall Tapers & Pointers, Local 1974 v. Local 530 of Operative Plasterers & Cement Masons Int’l Ass’n, 889 F.2d 389 (2d Cir.1989) (“Drywall III”), cert. denied, 494 U.S. 1030, 110 S.Ct. 1478, 108 L.Ed.2d 615 (1990); Drywall Tapers & Pointers, Local 1974 v. Operative Plasterers’ & Cement Masons’ Int’l Ass’n, 601 F.2d 675 (2d Cir.1979) (“Drywall II”), cert. denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 755 (1980); Drywall Tapers & Pointers, Local 1974 v. Operative Plasterers’ & Cement Masons’ Int’l Ass’n, 537 F.2d 669 (2d Cir.1976) (“Drywall I”). We will not replicate these efforts, but summarize briefly the facts pertinent to this appeal.

Local 1974’s members are painters who also provide drywall taping and pointing services, which entails filling seams between adjoining pieces of sheetrock to create a smooth wall finish for painting. Pursuant to a 1961 memorandum of understanding between the parent unions of Local 1974 and Local 530 (the “Parent Unions”),1 Local 530 had jurisdiction to perform drywall taping and pointing only on walls that must also receive plaster or acoustical finishes. See Drywall I, 537 F.2d at 671.

In the 1970s, however, a new drywall preparation technique known as “skimcoating” emerged that was not contemplated by the 1961 Memorandum. Skimcoating entails painting a diluted coating of taping compound (which is not plaster-based) over the entire drywall surface after taping and pointing work is completed, thus creating a plaster-like finish. Because Local 530’s members are plasterers, they employed the skimcoat-ing technique in an effort to obtain jurisdiction over preparatory taping and pointing work that otherwise would have gone to Local 1974. See Drywall IV, 954 F.2d at 74.

The parent unions are both members of the AFL-CIO and its Building and Construction Trades Department (the “Department”). The Department established a Plan for the Settlement of Jurisdictional Disputes in the Construction Industry (the “National Plan”) that prohibits work stoppages during the pendency of a jurisdictional dispute, and also mandates immediate compliance with decisions rendered under the National Plan. Furthermore, the National Plan specifies that the Department and each affiliated union (1) agree that all cases arising under the [237]*237National Plan shall be resolved “as provided [t]herein,” and (2) “shall comply with the decisions and rulings” made thereunder.

Under the National Plan, however, if a local plan exists to resolve jurisdictional disputes between unions, that plan must govern “in the first instance.” Local 1974 and Local 530 both are subject to the New York Plan for the Settlement of Jurisdictional Disputes (the “New York Plan”), which provides that the procedures outlined therein shall govern all jurisdictional disputes among the signatories. Under the New York Plan, jurisdictional disputes are mediated by the Building and Construction Trades Council of Greater New York (the “Trades Council”), a consortium of trade unions. If the dispute is not resolved through mediation, the union contesting the initial work assignment may seek arbitration before the executive committee of the Building Trades Employers’ Association of the City of New York (the “Employers’ Association”). The decision of the Employers’ Association may be appealed to the Impartial Jurisdictional Disputes Board for the Construction Industry under the New York Plan.

Local 1974 invoked these procedures to achieve numerous rulings in its favor regarding Local 530’s efforts to obtain jurisdiction at worksites by using the “skimeoating” technique. However, none of the administrative bodies established under the National and New York Plans took any significant action to enforce these decisions, with the result that the decisions provided no practical relief or benefit to Local 1974. See Drywall IV, 954 F.2d at 71-72; Drywall II, 601 F.2d at 679. On February 4, 1981, Local 1974 commenced the instant lawsuit, pursuant to 29 U.S.C. § 185(a),2 seeking judicial relief for Local 530’s continuing jurisdictional violations. See Drywall IV, 954 F.2d at 72.

Local 1974 sought injunctive relief to enforce its rights at sites that were the subject of jurisdictional disputes with Local 530, and agreed to bifurcate the issue of damages from the trial on the injunction. On April 13, 1984, we affirmed by unpublished order the district court’s issuance of a permanent injunction (the “1984 Injunction”) that barred Local 530 from asserting jurisdiction over thirty-two specific jobsites (the “Thirty-two Sites”) in New York City. Drywall Tapers v. Local 530, 742 F.2d 1432 (2d Cir.1984) (table); see also Drywall III, 889 F.2d at 392.

When Local 530 thereafter violated the 1984 Injunction, this court affirmed a judgment of civil contempt that ordered Local 530 to pay Local 1974 $542,863.37 for lost earnings, union dues, and fringe benefit payments caused by Local 530’s usurpation of taping and pointing jobs. Drywall III, 889 F.2d at 398; id. at 400 (Mahoney, J., concurring in part and dissenting in part). We subsequently affirmed an area-wide preliminary injunction that prohibited Local 530 from asserting jurisdiction over any construction site in New York City “ ‘unless the owner of the site or the agent of the owner, through architect’s specifications or other contractual documents, requires the employer of Local 530 members to skimcoat, as a matter of course, the entire drywall surface.’ ” Drywall IV, 954 F.2d at 76 (quoting Drywall Tapers v. Local 530, No. 81 CV 337, slip op. (E.D.N.Y. Dec. 18, 1990)).

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