Drywall Tapers & Pointers v. Operative Plasterers' & Cement Masons' International Ass'n

601 F.2d 675
CourtCourt of Appeals for the Second Circuit
DecidedJune 29, 1979
DocketNo. 398, Docket 78-7352
StatusPublished
Cited by4 cases

This text of 601 F.2d 675 (Drywall Tapers & Pointers v. 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 v. Operative Plasterers' & Cement Masons' International Ass'n, 601 F.2d 675 (2d Cir. 1979).

Opinion

WATERMAN, Circuit Judge:

Plaintiffs below, Drywall Tapers and Pointers of Greater New York, Local 1974 and certain individual members (Painters), appeal from a memorandum decision of the United States District Court for the Southern District of New York (Metzner, J.) dismissing their complaint for breach of contract under § 301(a) of the Labor Management Relations Act (29 U.S.C. § 185(a)) and dissolving a preliminary injunction previously entered against defendants Operative Plasterers’ and Cement Masons’ International Association (Plasterers). The district court determined that the dispute was a jurisdictional dispute involving the issue of whether the performance of a certain construction process was actually a job for Painters or for Plasterers, and concluded that the issue having been fully resolved pursuant to established industrial arbitration procedures there was no reason to entertain the lawsuit. We affirm the district court.

The dispute concerns the usage of “Sta-Smooth,” a taping and pointing material, and whether its use falls within the work province of Painters or Plasterers. Both Painters and Plasterers are members of the Building and Construction Trades Department of the AFL-CIO (Department) and are, therefore, bound by its arbitral and administrative procedures. In 1947 the Department issued a decision of record1 which assigned taping and pointing work by the nature of the material used — plasterers did work involving plaster materials and painters did work involving adhesive materials. In 1961, however, Plasterers and Painters were signatories to a Memorandum of Understanding (Memorandum) which classified all pointing and taping, regardless of [677]*677the material used, as painters’ work, so long as the drywall surfaces were not to receive plaster or acoustical finishes. The 1961 Memorandum was to supersede all prior understandings or agreements. The 1947 decision of record and the 1961 Memorandum embody the jurisdictional definitions with which we are concerned in the present lawsuit.

The “Plan for the Settlement of Jurisdictional Disputes in the Construction Industry” (Plan) governs the manner in which disputes over work assignments were to be settled. The signatory parties to the Plan, and who have agreed to be bound by it, are, on the one hand, the Department on behalf of its affiliated unions, and on the other hand, ten employer associations on behalf of their members. The Joint Administrative Committee, composed of representatives of labor and management, oversees the operation of the Plan. A dispute over a work assignment is first presented to a local board, whose decision is appealable to the Impartial Jurisdictional Disputes Board (Disputes Board) of the Department. A Disputes Board decision may then be appealed to the Appeals Board. The Joint Administrative Committee (JAC) oversees the Appeals Board and has authority under the Plan to certify as “repetitive” certain jurisdictional issues. A repetitive issue is first referred to the Presidents of the International Unions for resolution; and, in the event no settlement is reached within 90 days, the issue is referred to a Hearings Panel for a national decision binding on all member Unions.

In December 1973, JAC certified the issue of entitlement to prefinishing taping and pointing work to the Unions for resolution and instructed the Disputes Board to defer action on all appeals involving that jurisdictional issue. Prior to this time, relying on the 1961 Memorandum, the Disputes Board had, during a three-month period in 1973, resolved at least ten separate jurisdictional disputes. Both Painters and Plasterers protested the deferral order issued by the JAC, and, in response to their protests, received assurances from JAC that the matter would be considered at its next meeting.

In March 1975 Painters requested arbitration of the dispute concerning the assignment of prefinishing work by the local arbitration board under the New York Plan, the Building Trades Employers’ Association (BTEA). BTEA determined, without reference to the 1961 Memorandum, that “Sta-Smooth” was a plaster material and, therefore, by virtue of the 1947 decision of record, it was within the work province of Plasterers. Painters appealed the BTEA decision to the Disputes Board, which initially agreed to hear the appeal but later postponed the hearing. The Disputes Board ultimately refused to entertain the appeal because at the time Painters requested an appeal they were unilaterally pursuing the question of entitlement to the “Sta-Smooth” work in a collateral arbitration under a collective bargaining agreement. The Disputes Board held that the Painters, by pursuing collateral arbitration, were in violation of Article III, § 5 of the Plan, which prohibits a union from establishing work jurisdiction on a unilateral basis.

Inasmuch as the Disputes Board continued to defer all appeals involving the entitlement to “Sta-Smooth” work, and JAC failed to refer the issue to the Hearings Panel, the Painters initiated this action on August 28, 1975, for a declaratory judgment, specific performance of the 1961 Memorandum, an injunction restraining Plasterers from performing Painters work, and both punitive and compensatory damages. Simultaneously, Painters moved for a preliminary injunction restraining Plasterers from asserting jurisdiction over the taping and pointing of drywall surfaces that were not to receive plaster or acoustical finishes. On November 5, 1975, the district court issued an order denying Painters motion on the ground that the jurisdictional dispute had been certified as a repetitive question and had been referred to the Unions for settlement. Accordingly, the district court directed the parties to petition the JAC to seek referral of the dispute to the Hearings Panel. The court cautioned, however, that the motion for a preliminary injunction could be renewed upon a show[678]*678ing that Plasterers were not cooperating in resolving the dispute through the Plan. In January 1976, after petitioning the JAC for an immediate referral of the jurisdictional question, Painters renewed their motion for the court to issue a preliminary injunction. The district court, finding that it was likely that the 1961 Memorandum was controlling and that Painters would prevail on the merits, granted the motion, and thereby restrained the Plasterers, regardless of the material used, from performing drywall taping and pointing work on surfaces that were not to receive plaster or acoustical finishes. This court affirmed the issuance of the preliminary injunction although deeming it appropriate to limit it to the geographical area of Local 1974 only. Drywall Tapers and Pointers of Greater New York, Local 1974 v. Operative Plasterers’ and Cement Masons’ International Association, 537 F.2d 669 (2d Cir. 1976).

On February 1, 1977, the Hearings Panel conducted a preliminary hearing; and further hearings on the merits were scheduled for June 29 and 30. The Panel issued its decision on March 1, 1978. It held that, despite the contentions of both parties, there was no inconsistency between the 1947 decision of record and the 1961 Memorandum, concluding that the 1961 Memorandum was an attempt to clarify, in light of technological changes in the industry, the proper definition of work established by the 1947 decision of record.

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601 F.2d 675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drywall-tapers-pointers-v-operative-plasterers-cement-masons-ca2-1979.