# Local 33, International Hod Carriers Building & Common Laborers' Union v. Mason Tenders District Council > Court of Appeals for the Second Circuit · June 8, 1961 · 291 F.2d 496 URL: https://www.frixlaw.com/law-library/cases/6921358 ## Case - **Full name:** LOCAL 33, INTERNATIONAL HOD CARRIERS BUILDING AND COMMON LABORERS' UNION OF AMERICA v. MASON TENDERS DISTRICT COUNCIL OF GREATER NEW YORK and Local 23, International Hod Carriers Building and Common Laborers' Union of America - **Court:** Court of Appeals for the Second Circuit - **Decided:** June 8, 1961 - **Citations:** 291 F.2d 496 - **Precedential status:** Published - **Opinion:** Concurrence by Friendly - **Judges:** Friendly, Medina - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6921358 ## Opinion text FRIENDLY, Circuit Judge (concurring). If the District Court had jurisdiction, I would wholly agree that defendants were entitled to summary judgment because, as is convincingly demonstrated by my brother MEDINA, the papers negated the existence of the alleged custom and practice and also demonstrated failure by plaintiff to exhaust its intra-Union remedies. However, I think the action was properly dismissed for lack of federal jurisdiction, since the complaint, alleging violation of an intra-union “custom and practice, of long standing” as to “preference in appointing a shop steward,” did not, in my view, allege a violation of a “contract between labor organizations” within § 301(a) of the Labor- *506 Management Relations Act, 29 U.S.C.A. § 185 (a). One could hardly find better proof than this case, with its welter of motions and cross-motions, of the undesirability of obliging an overburdened Federal District Court to concern itself with the respective rights of two locals of the same union to appoint a shop steward 1 on a local building project apparently long since abandoned, 2 and of the unlikelihood that Congress meant to do so. The word “contracts” in § 301(a) of the Labor Relations Act, does not speak to me with the simple and direct accents that it does to my brothers. “Contract” covers a wide area. Some have applied it to government itself. It surprised many to learn that, as used in Art. I, § 10 of the Constitution, it included the “contract” between a state and a corporation embodied in a charter, Trustees of Dartmouth College v. Woodward, 1819, 4 Wheat. 518 , 4 L.Ed. 629 . Sometimes charters or by-laws of corporations or constitutions of unincorporated associations are regarded as contracts among the members even though the members have never seen them. A promissory note given by one union local to another is surely a “contract between labor organizations,” but, equally surely, I would suppose, not one within § 301(a) of the Labor Relations Act, even apart from the constitutional objections that might forbid. Hence the truism that courts will sometimes enforce an intraunion custom or constitution is scarcely a sure sign that this was what Congress had in mind when it enacted § 301(a) or —more realistically — what Congress would have had in mind if it had focused on the problem. Although the second clause of § 301(a) did not have the gestation period usual for enactments of that importance, 3 the legislative history of the first clause, summarized in Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 1955, 348 U.S. 437 , 75 S.Ct. 489 , 99 L.Ed. 510 , and Textile Workers Union of America v. Lincoln Mills, 1957, 353 U.S. 448 , 77 S.Ct. 912 , 1 L.Ed.2d 972 , is not without relevance to the interpretation of the second. The impulse behind the first clause was the belief that “When labor organizations make contracts with employers, such organizations should be subject to the same judicial remedies and processes in respect of proceedings involving violations of such contracts as those applicable to all other citizens.” 80th Cong. 1st Sess.H.R.Rep. No. 245, p. 46. There was thought to be difficulty in accomplishing this without remedial legislation, especially as regards money judgments, because “At common law voluntary associations are not suable as such,” and state statutes altering this rule were neither complete nor uniform, 80th Cong. 1st Sess., Sen.Rep.No. 105, p. 16. Hence § 301(b) provides that “Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States,” but that “Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organiza *507 tion as an entity and against its assets, and shall not be enforceable against any individual member or his assets.” It was believed, however, that this would be insufficient unless the District Courts were given substantive jurisdiction, as well as a new procedural rule — hence the District Courts were given cognizance of suits to enforce contracts between employers and labor organizations. Although the first clause in the bill as enacted did not contain the Senate’s language restricting it to “contracts concluded as the result of collective bargaining,” it has been held that only such were meant, Retail Clerks Int’l Ass’n v. Lion Dry Goods, Inc., D.C.N.D.Ohio 1959, 179 F.Supp. 564 , affirmed 6 Cir., 1960, 286 F.2d 235 , certiorari granted 1961, U.S., 81 S.Ct. 1094 , although, as the same Circuit has held, an unsigned contract may suffice, Hamilton Foundry & Machine Co. v. International M. & F. Workers, 6 Cir., 1951, 193 F.2d 209 , certiorari denied 1952, 343 U.S. 966 , 72 S.Ct. 1060 , 96 L.Ed. 1363 . The clause in § 301(a) with which we are here concerned must be construed in the light of the purpose underlying the entire section, namely, to provide a remedy by suit in the Federal courts in cases where, because of the difficulty in suing labor organizations, other remedies were considered inadequate. That purpose would scarcely include a dispute between locals of the same union normally settled by the union’s internal procedures, with ultimate judicial supervision, see Chafee, The Internal Affairs of Associations Not for Profit, 43 Harv.L.Rev. 993 (1930); Congress did not move into the latter area for another dozen years, Labor Management Reporting and Disclosure Act of 1959, §§ 101-105, 304(a), 402, 501(b), 29 U.S.C.A. §§ 411-415 , 464 (a), 482, 501(b), see Tomko v. Hilbert, 3 Cir., 1961, 288 F.2d 625 . Still less would the purpose include a case such as this where the claimed right is founded on an alleged custom which, even as alleged, is uncertain both in tenor and in term. Although both the locals and the District Council are “labor organizations” as defined in § 2(5), 29 U.S.C.A. § 152 (5), in the sense that any one of them could be guilty of an unfair labor practice, it would be undue literalism to say that each must be regarded as a separate entity for purposes of § 301(a) rather than as only an element in a larger one, when the sole complaint is the allegedly erroneous application of a rule or custom established by the latter for its internal governance, or that such a rule or custom is a “contract” within that section. The purpose of the statute to afford a remedy by suit in Federal courts primarily when other remedies were inadequate, its penetration into the periphery of Federal power, the ephemeral character of such controversies as this and the consequent uselessness of any save extremely speedy remedies, the problems of accommodation between the courts and the Labor Board on which my brothers dwell, as well as between § 301(a) and the Norris-LaGuardia Act, 29 U.S.C.A. §§ 101-115 , see A. H. Bull Steamship Co. v. Seafarers’ International Union, 2 Cir., 1957, 250 F.2d 326 , certiorari denied 1958, 355 U.S. 932 , 78 S.Ct. 411 , 2 L.Ed.2d 414 , and, finally, the unlikelihood that, as was said in relation to another issue under § 301(a), Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., supra, 348 U.S. at page 460 , 75 S.Ct. at page 500 , “Congress, at a time when its attention was directed to congestion in the federal courts, particularly in the heavy industrial areas, intended to open the doors of the federal courts to a potential flood” of intra-union grievances, combine to persuade me that we ought not push the language of the second clause of § 301(a) to its ultimate possible reach but rather should construe it not to cover a dispute between units of the same union arising solely out of a union custom or constitution; I would limit the jurisdictional grant to cases where the plaintiff alleges a text, bargained between itself and another labor organization, of definite content and ten- or. The box that Congress opened need not become Pandora’s unless courts make it so. . The significance of this right has not been precisely explained. Although the complaint sought a declaration that members of Local 33 were “entitled to preferment in employment,” nothing more was said of this, doubtless because of 29 U.S.C.A. § 158 (b) (2). As against this, an affidavit by counsel for the District Council states, in somewhat Delphic fashion, that “the granting of jurisdiction over a job does not preclude the members of other local unions from working on such job.” . Statements at the argument strongly suggest this action should be dismissed as moot. It seems to be known as far away as Paris that “the hole destined for the Zeckendorf Hotel” has been sold, Réalités, April 1961, p. 56; perhaps it ought not be too much for a court sitting in New York to “know” this, even without benefit of affidavits calling it to our attention. . Indeed, the House of Representatives was not even told that the clause had been inserted by the Conference Committee, 80th Cong., 1st Sess., H.R.Rep. No. 510, p. 65. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6921358. Public record. Not legal advice.