Petition — Carpenters District Council v. Reid Burton Construction, Inc.
Supreme Court brief1976
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Supreme Court of the United States
OCTOBER TERM, 1976
CARPENTERS DISTRICT COUNCIL OF )
SOUTHERN COLORADO and its )
affiliated LOCAL UNION 1340 )
of the United Brotherhood of )
Carpenters & Joiners of America, AFL-CIO, )
Petitioners )
vs )
REID BURTON CONSTRUCTION, INC.,
a Colorado corporation,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
JOHN W. McKENDREE
LAW OFFICES OF JOHN W. McKENDREE
1050 Seventeenth St., Suite 2500
Denver, Colorado 80202
Attorneys for Petitioners
TABLE OF CONTENTS
PAGE
I I inactticccisrcinstntnicstinsinisinncscuricainiticiicainil 2
TEES PA: ENE AT 2
QUESTION PRESENTED 0000...:...2..ssssssssssssssssesesesesesseeseeeeee 2
STATEMENT OF THE CASE 22..........cccccccccccccssssecessseeeseeeeee 2
REASON FOR GRANTING THE WRIT...» 7
THE COURT OF APPEALS’ DECISION PRE-
SENTS AN ISSUE OF SUBSTANTIAL FEDERAL
IMPORTANCE WHICH HAS NOT, BUT SHOULD
BE, DETERMINED BY THIS COURT ....... 7
SMITTEN wnisccsissscidliicciapssinicnshiituaiaiiaiiitintinissnieimcanaiininumisetes 15
CERTIFICATE OF SERVICE .........................-2--00- 15
APPENDIX
A. DISTRICT COURT MEMORANDUM OPIN-
ION AND AMENDMENT THERETO
1. Memorandum Opinion (November 17, 1974) .. A-1
2. Order Amending Findings and Conclusions
(December 27, 1974) seidhiialicibibanansinametndie A-13
B. TENTH CIRCUIT COURT OF APPEALS’
TIDE: .snsnsiniietiibiiniatieas scamesdcindsinianippaniiintbncaptaianiieania B-l
C. SELECTED PLEADINGS
1. Respondent’s Complaint for Damages And
Injunction (July 13, 1973) -............--....--0---0-0+ C-1
2. Colorado Building and Construction Trades
Council’s Motion to Dismiss (August 6, 1973).. C-6
3. Petitioners’ Motion to Dismiss
0S ee sai C-6
10.
11.
12.
13.
14.
15.
ii
Excerpts from Petitioners’ and Colorado
Building and Construction Trades Council’s
Brief in Support of Motions to Dismiss
(August 20, 1973) o..-sssssocccsssssoccecsssesnneceeeeee
Respondent’s Amended Complaint
ee
. Petitioners’ Answer and Counterclaim
I occas icsinatital
Excerpts from Respondent's Pre-Trial
Statement (March 11, 1974) _..0002.. eee eee
Excerpts from Petitioners’ Pre-Trial
Statement (March 11, 1974) .......2...2.22...-..20----
. Petitioners’ Suggestion to Dismiss Pursuant
to Rule 12(h) (3) (July 10, 1974) 00... C-40
Excerpts from Petitioners’ Brief in Support
of Suggestion to Dismiss Pursuant to
Rule 12(h) (3) (July 10, 1974) —....022....
Excerpts from Petitioners’ Amended Pre-
Trial Statement (July 23, 1974)...
Excerpts from Respondent’s Pre-Trial
Statement (July 23, 1974) 2.2... eesssccseeeeee
Excerpts from Pre-Trial Order
Co gS
Excerpts from Respondent's Trial
ee
Respondents’ Reply to Counterclaim
I i i as ataretsinatiaiitsnniseniil
. GRIEVANCE AND ARBITRATION PRO-
VISIONS OF APPLICABLE COLLECTIVE
BARGAINING AGREEMENT .....................--.-e0-00+0
iii
TABLE OF AUTHORITIES
CAsEs PAGE
Boys Markets, Inc .v. Retail Clerks Local 770,
RF Nea 3,6,9
Carey v. Westinghouse Electric Corp.,
| Lf A nnn NT 9
Controlled Sanitation Corp. v. Machinisis District 128,
524 F.2d 1324 (3d Cir. 1975), cert. denied,
ee 14
Drake Bakeries, Inc. v. Bakery Workers Local 50,
LF a es 9,12
Gateway Coal Co. v. United Mine Workers,
I ae cemsilatthigenslapinniennnetl 9
Granny Goose Foods, Inc. v. Teamsters Local 70,
F.Supp. ___, 88 LRRM 2029
8 nee 13,14
John Wiley & Sons, Inc. v. Livingston,
ee SI I OIE" inisciceliicsateeeadiericidiotnimeponmmnincniancoenna 9,14
Operating Engineers Local 150 v. Flair Builders, inc.,
440 F.2d 557 (7th Cir. 1971), reversed, 406 U.S.
GT CITI) acest sercesescnnecnnescnrersecnevnencunanmsenasscatevemecgenesenaneets 13
Operating Engineers Local 150 v. Flair Builders, Inc.,
kh | ee 6,7,8,9,12,13,14
Operating Engineers Local 542 v. Penn State Constr., Inc.,
356 F.Supp. 512 (M.D.Pa. 1973) .........-.-.-0--0+--se0ce00+0- 13,14
Retail Clerks Local 128 v. Lion Dry Goods, Inc.,
eS Se ee - 9
Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95 (1962)....9
iv
Textile Workers Union v. Lincoln Mills of Alabama,
353 U.S. 448 (1957) 9 3u the
United Steelworkers v. American Mfg. Co., Supreme Court of the United States
363 U.S. 564 (1960) 9
United Steelworkers v. Enterprise Wheel & Car Corp., OCTOBER TERM, 1976
363 U.S. 593 (1962) 9,12
United Steelworkers v. Warrior & Gulf Navigation Co.,
CARPENTERS DISTRICT COUNCIL OF _)
363 U.S. 574 (1960) 9,10
SOUTHERN COLORADO and its )
affiliated LOCAL UNION 1340 )
Statute: of the United Brotherhood of )
§301 of the Labor Management Reiations Act of 1947, Carpenters & Joiners of America, sm i
as amended, 29 U.S.C. §185 2,3,9,11,12 tenes )
vs )
REID BURTON CONSTRUCTION, INC.,
a Colorado corporation,
Respondent.
~~
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
The Petitioners, Carpenters District Council of Southern
Colorado and Local 1340 of the United Brotherhood of Car-
penters & Joiners of America, respectfully request that a writ
of certiorari issue to review the judgment and opinion of the
United States Court of Appeals for the Tenth Circuit entered
| in this proceeding on May 6, 1976.
2
OPINIONS BELOW
The opinion of the Court of Appeals is reported at F.
2d , 92 LRRM 2321, and appears in Appendix B hereto,
The District Court opinion is reported at F.Supp. —_,
91 LRRM 2873, and appears in Appendix A hereto.
JURISDICTION
The Court of Appeals’ judgment and opinion was dated
and entered of record on May 6, 1976, reversing in part the
judgment of the District Court and remanding the case to
the District Court for further proceedings. The jurisdiction
of this Court is invoked under 28 U.S.C, §1254(1).
QUESTION PRESENTED
Where there is no intentional or express waiver of the
right to insist on arbitration in a §301(a) action for breach of
a no-strike clause, should the District Court or an arbitrator
determine whether alleged dilatory pleading tactics constitute
constructive waiver of the right to insist on arbitration?
STATEMENT OF THE CASE
On July 13, 1973 the Respondent Reid Burton Construc-
tion, Inc. [hereinafter referred to as Burton] filed a com-
plaint [App. C at C-1] in the United States District Court for
the District of Colorado against the Petitioner Carpenters
District Council of Southern Colorado [hereinafter referred
to as District Council], the Petitioner Local 1340 of the United
Brotherhood of Carpenters & Joiners of America [hereinafter
referred to as Local 1340] and the Colorado Building and
Construction Trades Council [hereinafter referred to as Build-
') Pore
3
ing Trades Council]. The complaint alleged jurisdiction under
§301 of the Labor Management Relations Act of 1947, as
amended [hereinafter referred to as Act], 29 U.S.C. §185
[{Id. at C-2]. The complaint stated, inter alia, that the District
Council and Local 1340 were “parties” to and had breached
certain provisions of a collective bargaining agreement with
Burton “known as ‘Carpenters’ Agreement, Carpenters District
Council of Southern Colorado” "by (1) attempting to modify
Burton’s obligations under such agreement during its term
and (2) inducing, encouraging and/or coercing employees to
respect a picket line established by the Building Trades Coun-
cil. [Id. at C-3-4]. The complaint was silent as to the existence
if any, of grievance and/or arbitration provisions in the collec-
tive bargaining agreement.
All Defendants filed motions to dismiss pursuant to Fed.
R.Civ.P. 12 [Id. at C-6-7]. The District Council and Local
1340 did not, in their motion or brief in support thereof, note
the existence of arbitration provisions in the collective bar-
gaining agreement but did argue that the injunctive relief re-
quested in Burton’s complaint was barred under the Norris-
LaGuardia Act, 29 U.S.C. §101 et seq., in the absence of alle-
gations satisfying the criteria for injunctive relief set forth in
Boys Markets, Inc. v. Retail Clerks Local 770, 398 U.S. 235,
254 (1970) [Id. at C-14-15]. On September 14, 1973 Burton
filed an Amended Complaint deleting all requests for injunc-
tive relief. [Id. at C-16]. The District Court subsequently
denied the District Council’s and Local 1340's Motion to Dis-
miss, and on November 9, 1973 they answered the Amended
Complaint. [Id. at C-21]. The Answer admitted jurisdiction
under §301 as to the District Council and denied jurisdiction
'The correct denomination of the collective bargaining agreement was
“Carpenters Building Construction 1972 - 1975 Agreement — Coerpenters
District Council of Southern Colorado.”
4
thereunder as to Local 1340. The Answer further admitted that
the District Council was a party to the collective bargaining
agreement but denied such status as to Local 1340. [Id. at
C-21]. The Answer asserted ten affirmative defenses, the
third of which read:
“This Court has no jurisdiction over the subject matter
of this action because it involves the interpretation and
application of the collective bargaining agreement...
which is within the sole and exclusive province of the dis-
pute resolution machinery contained therein which pro-
visions contain the exclusive remedy for breaches thereof.”
[Id. at C-25].
Joined with the Answer was a Counterclaim by the Dis-
trict Council alleging, inter alia, that Burton, by failing to
pursue the grievance and arbitration procedures contained in
the collective bargaining agreement, was in violation of the
agreement. [Id. at C-27]. Burton’s Reply to the Counterclaim
affirmatively alleged that the “Defendants’ [sic] Counterclaim
is barred by the application of the doctrine of laches.” [Id. at
C-77]. The Reply further alleged that the Counterclaim it-
self was subject to the grievance and arbitration procedures of
the collective bargaining agreement and that the District
Court was, as a consequence, without jurisdiction over it.
[Id. at C-77].
Burton’s Reply to the District Council's Counterclaim was
filed on December 5, 1973. On March 11, 1974 the parties filed
Pre-Trial Statements which, generally speaking, reiterated the
several positions assumed in earlier pleadings. [Id. at C-29,32].
Burton’s Pre-Trial Statement, however, did not mention any
issue of arbitration as a question of law or fact to be deter-
mined by the court. [Id. at C-31-32]. The District Council's
5
and Local 1340's Pre-Trial Statement certified as issues of fact
and law questions dealing with the arbitrability of the subject
matter of the Amended Complaint. [Id. at C-37-39]. On July
18, 1974 the District Council and Local 1340 filed with the
District Court a Suggestion to Dismiss pursuant to Fed.R.Civ.P.
12(h)(3) and a supporting brief. [Id. at C-40-41]. In the
supporting brief tiie District Council and Local 1340 stated,
“(a)Ithough heretofore the Defendants have questioned
whether the Defendant Local 1340 was a party to the collec-
tive bargaining agreement entered into by Reid Burton and
the Carpenters District Council of Southern Colorado, the
Defendants herein state that Local 1340 is subject to the terms
and provisions of the agreement... As a consequence, both
Defendant Carpenters District Council of Southern Colorado
and Defendant Local 1340 would be bound by an arbitral
award issued in accordance with the provisions of Article XIV
of the collective bargaining agreement.” [id. at C-44]. Simul-
taneously, the District Council and Local 1340 filed an
Amended Pre-Trial Statement which, inter alia, admitted 4301
jurisdiction as to Local 1340 but denied that it was a “party”
to the collective bargaining agreement. [Id. at C-44,46]. Burton
then filed an additional Pre-Trial Statement on July 23, 1974
which, as its initial Pre-Trial Statement, was silent as to any
issue involving the arbitrability of the subject matter of its
Amended Complaint or the Counterclaim.
On September 23, 1974 the court entered a lengthy Pre-
Trial Order. The Pre-Trial Order did not list as a contested
issue of fact or law any equitable defense by Burton to its
obligation to arbitrate. On the first day of trial, however, Bur-
ton raised the equitable defense issue in its Trial Brief, noting
that, “(u)ntil recently, Defendant Local 1340 was denying it
was party to the collective bargaining agreement. Thus, be-
cause of the pleading tactics of the Defendant Union (sic),
6
the matter has progressed up to the point of trial and therefore
the right to arbitrate, if it ever existed, should be deemed
waived.” [Id. at C-75].
On November 19, 1974 the District Court issued its
Memorandum Opinion in which it made “findings and conclu-
sions on all questions directly or indirectly, and properly or
improperly before me.” [App. A at A-4-5]. Included in such
findings and conclusions was a determination that District
Council and Local 1340 had “flagrantly violated” the no-strike
provision gf the collective bargaining agreement and that
Burton had been damaged thereby in the amount of Ten
Thousand Eight Hundred One Dollars and Ninety-Seven Cents
($10,801.97 . [Id. at A-10]. The District Court nonetheless
then held that the arbitration provisions of the collective bar-
gaining agreement were broad enough to encompass employ-
er-initiated grievances alleging breach of its no-strike provi-
sion. The court further held that Operating Engineers Local
150 v. Flair Builders, Inc., 406 U.S. 487 (1972), required that
an arbitrator determine “whether defendants can insist on
arbitration in light of their conduct leading up to and during
this case.” [Id. at A-11].
The Court of Appeals sustained the District Court’s reso-
lution of those issues dealing with whether the grievance and
arbitration provisions of the collective bargaining agreement
admitted resolution for employer-initiated grievances alleging
breach of its no-strike provisions. This determination is not the
subject of the within Petition. However, the Court of Appeals
reversed the District Court as to its determination that an ar-
bitrator should resolve all equitable defenses raised by Burton
to its duty to arbitrate. Specifically, the Court of Appeals re-
manded the case to the District Court for determination of
“whether the union should be prevented from demanding ar-
7
bitration because of ‘evasive’ and ‘dilatory’ pleading practices
before the court.” [App. B at B-12].
REASON FOR GRANTING WRIT
THE COURT OF APPEALS’ DECISION PRESENTS
AN ISSUE OF SUBSTANTIAL FEDERAL IMPOR-
TANCE WHICH HAS NOT, BUT SHOULD BE, DE-
TERMINED BY THIS COURT,
This Court determined in Operating Engineers Local 150 v.
Flair Builders, Inc., supra, that, where the substantive cover-
age of an arbitration clause extends te “any difference,” the
parties to the agreement were required to arbitrate the defense
of laches even if “extrinsic to the arbitrable process.” Id. at
491. The Court of Appeals herein held that Flair “did not
determine that every equitable defense was an arbitrable issue,
but that its arbitrability hinged on the scope of the arbitration
clause.” [App. B at B-4]. It then reasoned that the substan-
tive scope of the instant arbitration provisions was not broad
enough “to include the arbi':ation of equitable defenses
arising out of actions by a party in proceedings before a Dis-
trict Court.” [Id. at B-11]. More significantly, the Court of
Appeals added:
“,. Indeed, even had the parties so intended, we would
conclude that such an agreement would clearly exceed the
proper subject matter of a collective bargaining agreement
and would not be enforceable in court; it would be im-
proper for the prospective parties of a lawsuit to attempt
by contract to bind the exercise of a court’s inherent judi-
cial function.” Id.
The instant collective bargaining agreement provides for
8
arbitration of all disputes “involving the application of inter-
pretation of (its) terms....” [App. D at D-1]. Section 5 of
the arbitration provision further states in relevant part:
“Any party to this Agreement who fails to abide by or
refuses to adjust a dispute by the terms of this Article
shall be in violation of this Agreement. ...” [Id. at D-3].
Thus, without doubt and as the Court of Appeals held, the
scope of the above arbitration provision “would probabl(y)
cover the type of laches defense raised in Flair Builders... .”
[App. B at B-11]. It is, therefore, submitted that the sub-
stantive scope of the instant arbitration provisions and that
of Flair are of comparalle breadth. Moreover, insofar as Bur-
ton’s equitable defenses turn on the allegedly dilatory recourse
by the District Council and/or Local 1340 to arbitration, an
issue is raised as to whether either of them has failed “to ad-
just a dispute by the terms” of the arbitration provision. The
Court of Appeals’ off-handed determination of substantive ar-
bitrability vis-a-vis equitable defenses arising from the conduct
of a party during a judicial proceeding is patently without
merit unless, as it argues, such issues are as a matter of policy
excluded from arbitration.
Realistically viewed, the Court of Appeals decision is not
based on its determination of substantive arbitrabilit: but on
its generic exclusion of equitable defenses from arbitration “if
such defenses arise solely during the course of the judicial
process....” [Id. at B-13]. The District Court's decision in
this regard, furthermore, is to be made upon the basis of the
conduct before it, i.e., “the union’s conduct in pleading... .”
However, despite the Court of Appeals’ attempt to distinguish
in a neat fashion “in-trial conduct” and non-“in-trial conduct,”
9
policy considerations underlying §301 of the Act are still of
direct relevance.
Commencing with Textile Workers Union v. Lincoln Mills
of Alabama, 353 U.S. 448 (1957), the Court has evolved an
intricate body of federal substantive law under $301. The
core principle governing such evolution has been the Court’s
recognition of §301’s integral importance to the maintenance of
labor peace. Thus, the term “contract” in §301(a) has been
expansively construed to include all agreements “between
employers and labor organizations significant to the mainten-
ance of labor peace between them.” Retail Clerks Local 128 v.
Lion Dry Goods, Inc., 397 U.S. 17, 28 (1962). Lincoln Mills
itself clearly determined that specific performance of contract-
ual undertakings served such purpose. Id. at 455. Of particular
relevance instantly is that the contractual undertaking
sought to be specifically enforced in Lincoln Mills was an
agreement to arbitrate disputes. Id. at 449. Decisions of the
Court subsequent to Lincoln Mills have firmly established labor
arbitration as the prime means of effecting §301’s objectives.
United Steelworkers v. American Mfg. Co., 363 U.S. 564
(1960); United Steelworkers v. Warrior & Gulf Navigation
Co., 363 U.S. 574 (1960); United Steelworkers v. Enterprise
Wheel & Car Corp., 363 U.S. 593 (1960); Drake Bakeries, Inc.
v. Bakery Workers Local 50, 370 U.S. 254 (1962); Teamsters
Local 174 v. Lucas Flour Co., 369 U.S. 95 (1962); Carey v.
Westinghouse Electric Corp., 375 U.S. 261 (1964); John Wiley
& Sons, Inc. v. Livingston, 376 U.S. 543 (1964); Boys Markets,
Inc. v. Retail Clerks Local 770, supra; Operating Engineers
Local 150 v. Flair Builders, Inc., supra; Gateway Coal Co. v.
United Mine Workers, 414 U.S. 368 (1974). However, “(a)r-
bitration is a stabilizing influence only as it serves as a vehicle
for handling every and all disputes that arise under the agree-
ment.” United Steelworkers v. American Mfg. Co., supra at 567.
10
Those decisions noted above reiterate either directly or
indirectly the singular importance and expertise of the labor
arbitrator. “The ablest judge cannot be expected to bring the
same experience and competence to bear upon the determi-
nation of a grievance, because he cannot be similarly in-
formed.” United Steelworkers v. Warrior & Gulf Navigation
Co., supra at 582. Further, because parties to a collective bar-
gaining agreement have a continuing relationship, the use of
arbitration in a given case often has, as a practical matter, an
effect on other aspects of their relationship unrelated to the
particular dispute at issue. Thus, while a court will likely be
cognizable only of the precise legal issues before it, an arbitra-
tor’s judgment will be tempered by a recognition not only of
the realities of the collective bargaining relationship giving rise
to a dispute but also of the effect his determinations will have
on the future relationship between the parties. An arbitrator's
perspective is, therefore, broader than that of a court and,
optimally, more highly sensitized to the nuances of the col-
lective bargaining relationship.
The Court of Appeals’ decision herein tacitly assumes
that “in-trial” conduct is distinct from the ongoing bargaining
relationship of the parties and that Flair is thus distinguishable.
“In-trial” conduct is different, the court in effect posits, be-
cause courts must “...maintain judicial control of their own
proceedings.” [App. B at B-9]. The District Council and
Local 1340 do not, of course, contest the notion that the judi-
cial process should not be abused. But, with due deference to
the Court of Appeals, abuse of the judicial process is simply
not a bona fide issue herein. Rather, the question presented is
whether a court or an arbitrator, under the facts of this case,
should determine any equitable defense to the duty to arbi-
trate asserted by Burton arising from alleged dilatory pleading
tactics,
“erm
ll
In the present case there is no apparent dispute that the
District Council and Local 1340 timely asserted in their
Answer the affirmative defense of Burton’s failure to comply
with its obligation to arbitrate. As indicated by the District
Court’s and the Court of Appeals’ decisions, Burton con-
tested this duty unsuccessfully. There was, nonetheless, a
threshold difference between the parties as to whether Bur-
ton was required to arbitrate. The District Council in the
Answer admitted that it was a party to the collective bargain-
ing agreement and that §301 jurisdiction was present; Local
1340 denied both. As the litigation was to progress, the only
significant change of position by the petitioners was Local
1340's admission of $301 jurisdiction. It is submitted that, as a
matter of law, such an admission cannot be construed as an
intentional waiver of the right to insist on arbitration. Since
there can thus be no legitimate contention that either the
District Council or Local 1340 intended to waive the right to
insist upon arbitration, the District Court’s decision can be
based only on considerations essentially punitive in nature;
i.e., both the District Council and Local 1340 should be re-
quired to forego their insistence upon arbitration because
Local 1340 chose to abandon a given defense. A correspond-
ing result is to sanction Burton's selection of an improper
forum.
The policy implications of the Court of Appeals’ decision
are thus significant. The court, without guidelines, holds that
(1) a District Court may deprive a party to a collective bar-
gaining agreement of its right to insist upon arbitration as a
form of punishment for alleged “dilatory” pleading conduct, and
(2) the District Court’s determination in this regard is to be
made only with reference to the allegedly recalcitrant party’s
“jn-trial conduct.” The salutary purpose of arbitration is nega-
tived not by policy considerations stemming from $301 but by
12
the discretion of the District Court; the court’s decision is not
made with any regard for the ongoing relationship between
the parties but solely upon pieces of paper which, realistically
viewed, imperfectly mirror the realities of any lawsuit. Con-
versely, in determining whether Burton has posed a viable
equitable defense, the District Court would not consider the
non-judicial relationship and conduct between the parties
during the course of the lawsuit nor the effect of his decision
on their future relaticaship. While an arbitrator “does not
sit to dispense his own brand of industrial justice,” he is used
“to bring his informed judgment to bear in order to reach a
fair solution to the problem.” United Steelworkers v. Enter-
prise Wheel & Car Corp., supra at 597.
Further, the Court of Appeals’ decision herein raises with
clarity an issue left unanswered in Drake Bakeries, Inc. v.
Bakery Workers Local 50, supra, and Flair. In Drake Bakeries
the Court sustained the District Court’s determination that a
union was not in default in requesting a stay of action pend-
ing arbitration. The Court noted that the union had moved
“promptly” for a stay. Id. at 266-67. Drake thus appears to
recognize that the right to insist upon arbitration can be
waived by untimely assertion. Where, as instantly, there is no
contention that the defense was untimely asserted as a pro-
cedural matter but rather subsequently waived through alleged
dilatory conduct, does Flair compel arbitration of the defense?
Should a District Court be concerned with the equities of per-
mitting the continued insistence upon arbitration? The District
Council and Local 1340 assert that the above questions can-
not be answered by mere reference to a court’s “inherent judi-
cial function.” Rather, they are integrally intertwined with and
affected by the federal body of substantive law which has
evolved, and is evolving, under §301. The Court of Appeals’
decision can serve only to weaken the federal commitment to
13
arbitration under §301 and to create incentive for parties to
seek direct recourse to the judicial process in hopes that the
course of litigation will present a fortuitous “equitable defense”
to their duty to arbitrate. Such a result runs counter to the
legal and practical significance of the Steelworkers Trilogy
and subsequent decision of this Court. “Unless arbitration pro-
cedures command labor's respect, less civilized methods of
resolving disputes will be employed with greater frequency.”
Operating Engineers Local 150 v. Flair Builders, Inc., 440 F.2d
557, 561 (7th Cir. 1971) [Stevens, J., dissenting].
In Flair the Court held that, given a sufficiently broad
arbitration provision, “extrinsic” as well as “intrinsic” issues of
untimeliness were to be resolved in the arbitral forum. As
used by the majority in the Seventh Circuit’s Flair opinion,
“extrinsic untimeliness” referred to “delay in the mere notifi-
cation of the existence of a dispute. . .without regard to wheth-
er procedural prerequisites to arbitration have been followed.”
440 F.2d at 560. The rationale for the Seventh Circuit’s de-
cision was the possible prejudice which would accrue to the
employer if the union were permitted to proceed to enforce the
agreement or any provision thereof. In reversing, this Court
in Flair was thus referring claims of such prejudice to the ar-
bitrator. Instantly, Burton claims prejudice because of alleged-
ly dilatory pleading tactics. While arguably far less prejudice
is present herein than in Flair, it nonetheless stems from the
same source: the passage of time. Presumably, therefore, an
arbitrator would be equally capable of resolving the equitable
defense asserted by Burton as that by Flair. Two District
Courts have, in effect, so held. Operating Engineers Local 542
v. Penn State Contsr., Inc., 356 F.Supp. 512 (M.D.Pa. 1973);
Granny Goose Foods, Inc. v. Teamsters Local 70, __ F. Supp.
14
, 88 LRRM 2029 (N.D.Cal. 1974).? Fairly viewed Bur-
ton’s equitable defenses cannot be separated from the vortex
of a dispute which has improperly spilled over into the courts.
Such defenses are, further, directly analogous to “(q)uestions
concerning the. . .prerequisites to arbitration (which) do not
arise in a vacuum; they develop in the context of an actual dis-
pute about the rights of the parties to the contract or those
covered by it.” John Wiley & Sons, Inc. v. Livingston, supra
at 557.
Lastly, the Court of Appeals’ decision herein, while focus-
ing on a factual distinction between Flair and the present case,
fails to point to any legitimate policy rationale for its “im-
portant limitation” upon Flair. The Court of Appeals’ decision
raises directly the issue of whether a District Court shall be
permitted on equitable grounds to relieve one party to a collec-
tive bargaining agreement of its obligation to arbitrate. Alter-
natively phrased, the question is whether a District Court in
its discretion should be permitted to frustrate the strong federal
policy favoring arbitral resolution of disputes between employ-
ers and employees as discipline for allegedly improper “in-trial
conduct.” The Court has never addressed this issue, and in
view of the Court of Appeals’ decision it will become of in-
creasing importance. In sum, the policy implications of the
Court of Appeals’ decision are significant, and it writes on a
“The Court of Appeals’ decision herein indicated that Controlled Sanita-
tion Corp. v. Machinists District 128, 524 F.2d 1324 (3rd Cir. 1975),
cert. denied, __ U.S. __, 96 S.Ct. 1114 (1976), “called for the arbitra-
tion of equitable defenses not arising out of the processing of grievances
or the formation of the collective bargaining agreement.” [App. B at
n.6]. A careful review of Controlled Sanitation, however, indicates that,
while the employer apparently raised arguments similar to Burton’s, the
majority dismissed them perfunctorily. Id. at 1326 nn. 3-4. While the
District Council and Local 1340 agree with Judge Rosenn’s characteriza-
tion of the import of the majority’s reasoning, the issue was not specifi-
cally decided therein. Nonetheless, the majority did cite Penn State,
supra, and Granny Goose, supra, with apparent approval.
ata
15
blank sheet. The District Council and Local 1340 believe that
this Court should establish the parameters, if any, within
which courts may utilize their equitable discretion to find
constructive waiver of the right to insist upon arbitration. The
failure to resolve this issue promptly can only result in rampant
forum shopping by litigants with a concomitant diminution
of the salutary purpose of labor arbitration.
CONCLUSION
The Petitioners respectfully request the Court to issue a
writ of certiorari to the Tenth Circuit Court of Appeals to re-
view its decision in this matter.
Respectfully submitted,
LAW OFFICES OF JOHN W. McKENDREE
John W. McKendree
Attorneys for Petitioners
1050 Seventeenth St., Suite 2500
Denver, CO 80202
Telephone: (303) 572-8585
CERTIFICATE OF SERVICE
I hereby certify on this day of July, 1976 two
copies of the within PETITION FOR A WRIT OF CER-
TIORARI TO THE UNITED STATES COURT OF AP-
PEALS FOR THE TENTH CIRCUIT, were mailed, postage
prepaid, to Robert G. Good, Esq., Law Offices of Robert G.
Good., 733 Guaranty Bank Building, 817 Seventeenth St.,
Denver, Colorado 80202.
A-l
APPENDIX A
DISTRICT COURT MEMORANDUM OPINION
AND AMENDMENT THERETO*
er
1. Memorandum Opinion (November 17, 1974)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. C-5184
REID BURTON CONSTRUCTION, INC.,
a Colorado corporation,
Plaintiff
SOUTHERN COLORADO, LOCAL 1340
of the UNITED BROTHERHOOD OF
CARPENTERS & JOINERS OF AMERICA,
AFL-CIO, COLORADO BUILDING AND
CONSTRUCTION TRADES COUNCIL,
: unincorporated associations and labor
)
)
)
)
)
)
| CARPENTERS DISTRICT COUNCIL OF )
)
)
)
)
)
)
organizations, )
)
REET OR: er toner
A-2
MEMORANDUM OPINION
WINNER, Judge
By amended complaint brought under 29 U.S.C. $185,
plaintiff sought damages against (a) Carpenters District
Council of Southern Colorado, (b) Local 1340 of the Inter-
national Brotherhood of Carpenters & Joiners of America,
AFL-CIO, and (c) Colorado Building and Construction Trades
Council. The amended complaint alleged in material part:
“5. Plaintiff and Defendants, Carpenters District Council
of Southern Colorado and Local 1340 of the International
Brotherhood of Carpenters and Joiners of America, AFL-
CIO, are parties to a collective bargaining agreement
known as ‘Carpenters’ agreement, Carpenters District
Council of Southern Colorado.’ At all times material here-
in such collective bargaining agreement was in full force
and effect and governed the relationship between the
aforementioned parties. [emphasis supplied].
“6. Said collective bargaining agreement contains prom-
ises by Local 1340 and by the Carpenters District Council
of Southern Colorado and (sic) they and their members
will not strike or picket during the term of the agreement
“7. .. . Defendant Colorado Building and Construciion
Trades Council is authorized by its constituent unions,
including Defendant Local 1340 and Defendant
Carpenters District Council of Southern Colorado, to rep-
resent them for purposes relating to labor relations, and
as such the Defendant Colorado Building and Constric-
tion Trades Council is an agent of its constituent unions.”
By order of November 23, 1973, Colorado Building and
Construction Trades Council was dismissed from the case
a
A-3
under rules of contract and agency law, because, “Under the
averments of the complaint here, and taking into account the
actual parties to the contract, it can be said that Colorado
Building and Construction Trades Council is concerned with
this dispuce only as an agent for a disclosed principal.
The other two defendants answered, and in paragraph 5
of the amended answer it is said:
“5. The above named defendants deny the allegations in
paragraph 5 of the Amended Complaint. By way of fur-
ther answer, the above named defendants aver that plain-
tiff and defendant District Council of Southern Colorado,
the Defendants herein state that Local 1340 is subject to
the terms and provisions of the agreemnt. . . . As a con-
sequence, both Defendant Carpenters District Council of
Southern Colorado and Defendant Local 1340 would be
bound by an arbitral award issued in accordance with the
provisions of Article XIII of the collective bargaining
agreement.”
July 10, 1974, the Local said that it is bound by the con-
tract and that the dispute is subject to arbitration and that
the case should be dismissed. Defendants argue that they
have not changed their position, and they explain that the time
spent by plaintiff's counsel and the court in preparing the
case for trial was wasted time because plaintiff's counsel and
the court should have read more literally defendants’ assertions
that Local 1340 was not a party to the contract and should not
have been taken aback by defendants’ July 10, 1974, assertion
that the non-party local was bound by a contract to which it
is not a party, and this even though defendants had denied
that they were governed by the agreement. I have said on the
record and I repeat here that sophistry such as this does not
A-4
help a court in its futile efforts to keep up with an over-
crowded docket.
Another pretrial conference was held after the suggestion
to dismiss was filed, and the pretrial oider contains the follow-
ing partial statement of defendants’ position as to the court's
jurisdiction.
“Although the Defendant Carpenters District Council of
Southern Colorado and Defendant Local 1340 submit that
this Court does not have jurisdiction under Section 301 to
reach the merits of the Plaintiff's claims for breach of con-
tract, this Court does have threshold jurisdiction under
Section 301 to determine whether the provisions of Article
XIII of the cgllective bargaining agreement provide for
final and binding arbitration of the subject matter of
Plaintiffs claim. Threshold jurisdiction for this deter-
mination lies under Section 301 because Plaintiff's claim
involves an alleged violation of a contract between an
employer and a labor organization. Furthermore the
stance that the existence of applicable arbitration pro-
visions deprives this Court of subject matter jurisdiction
is not inconsistent with the stance that the Court has
threshold jurisdiction under Section 301. Simply stated,
the Court has jurisdiction to determine whether the Plain-
tiff’s claims of breach of contract are substantively arbitra-
ble, but once such claims are determined to be substan-
tively arbitrable, the jurisdictional grant of authority un-
der Section 301 ceases.”
With this latest version of defendants’ ever changing posi-
tion being filed a scant week in advance of the trial date, the
case proceeded to trial on all issues, the case was taken under
advisement and post trial briefs were allowed. They have been
filed, and, have been beleagured by this case to the extent that
I have, J shall make findings and conclusions on all questions
ow owe
A-5
directly or indirectly, and properly or improperly before me.
I do this to avoid if possible any risk of having to try the case
all over again if the Court of Appeals disagrees with my con-
clusions.
Plaintiff and Carpenters District Council of Southern
Colorado are purties to a labor contract, and defendant Local
1340 of the United Brotherhood of Carpenters & Joiners of
America, AFL-CIO has now made a judicial admission that it
is bound by that contract. Article XIII of the contract is the
important article here. It provides in material part:
“ARTICLE XIII
“CONTRACTURAL DISPUTES
“Section 1 - In the event that a dispute arises involving the
application or interpretation of the terms of this agree-
ment, reasonable and diligent effort shall be exerted by
the employee with the employer's representative, the em-
ployee contacting the business representative through the
steward, and/or the business representative with the em-
ployer’s representative. If the two parties are unable to
reach a settlement, the dispute shall be reduced to writing
and the aggrieved party shall notify the other party the
dispute is being referred to a Board of Adjustment.
“Section 2 - The Board of Adjustment shall be composed
of two representatives selected by the employer from con-
tractors signatory to this agreement and two representa-
tives selected by the union. The Board of Adjustment shall
meet not later than five (5) days after a grievance has
been presented to it.
“Should the Board of Adjustment be unable to render
a majority decision after convening and hearing the dis-
pute, the Board shall, within 48 hours, select an impartial
A-6
chairman who is not directly connected with the building
or construction industry, either as contractor or union.
Should the parties be unable to agree on the selection of
the chairman within said 48 hours, the same shall be se-
lected from a panel of five (5) names submitted by the
director of the Federal Mediation and Conciliation Service
in Washington, D.C. The party initiating the dispute shall
strike first on said list.
“Section 3 - The majority decision of the Board of Adjust-
ment shall be final and binding upon each party to the dis-
pute in each instance and shall be within the scope and
the terms of this agreement.
“Section 5 - The parties agree there shall be no strike,
work stoppage, slowdown, lockout or other interruption
of the continuity of the work in progress during the life
of this Agreement unless a party refuses to abide by or to
implement the majority decision of the Board of Adjust-
ment.”
While the contract was in full force and effect, and while
A-7
jobsite work only to contractors who are parties to a con-
tract with one of the unions affiliated with our council. A
proposed draft of such agreement is enclosed for your con-
sideration. You will note that it applies only to future
work for which no sub-contract has been executed. Your
signiag of the proposed agreement would therefore not
require you to terminate the services of any contractor for
any job which is a'!-eady under contract.
“We intend to acquaint the public, by means of pick-
eting and other forms of communication, with the names
of builders and general contractors who do not enter into
our sub-contracting agreement. In the event that your
company is the subject of such picketing, it will be con-
ducted at your general offices and other places in which
you may be engaged in business. The picketing will be
directed to the public, and not to your contractors, sup-
pliers, or employees. Its sole purpose will be to contest
your right to the goodwill of the community. We wish to
emphasize that we are not requesting or seeking, and do
not desire, you to cease or refrain from doing business
with any person, firm or corporation. Nor do we claim to
represent, or seek or organize, any of your employees, and
we do not request or desire your recognition as their rep-
resentative.
plaintiff was living up to all of its terms, Colorado Building and
Construction Trades Council wrote a letter to plaintiff which “If you have any comment or question concerning this
said: matter, please communicate the same by letter, which
P will be referred to our Executive Board for appropriate
Gentlemen: consideration and action. Neither the undersigned, nor
any other person, has authority to discuss this matter in
“We are presently engaged in a program to standard- behalf of the union.”
ize wages and working conditions in the construction in-
dustry in this area. To assist in accomplishing this, we are
requesting builders and general contractors to sub-contract
Plaintiff didn’t go along with the request of the Building
and Construction Trades Council, and, true to its word, pickets
a
A-8
showed up at two of plaintiff's jobs in Fort Collins, Colorado,
(a) the Everitt Office Building job, and (b) the Markley
Motors job. Leaflets were handed out by the pickets, and these
leaflets said:
“MESSAGE TO THE PUBLIC
“We are picketing REID BURTON because of his refusal
to sign a sub-contracting agreement for future job site
work. If you believe in the cause of fair wages and work-
ing conditions for American workers, please telephone or
write to Reid Burton and request him to sign our sub-
contracting agreement for future job site work.
“Our picket is not directed against any other employer,
and we have no dispute with any other employer on this
project.
“Thank you!
“COLORADO BUILDING AND CONSTRUCTION
TRADES COUNCIL
“The person giving you this leaflet is not authorized to
discuss this or any other matter in behalf of the Colorado
Building and Construction Trades Council.”
Additionally, signs were posted which read:
“REID BURTON CONST. CO. Has No Contract With
Colorado Building & Constr. Trades Council. We have
no dispute with any other person or Co. on the project.”
9 sae
A-9
A responsible officer of the Local admitted to a repre-
sentative of plaintiff that there was no claim by defendants of
a contract violation by plaintiff, and defendants made a tongue
in cheek disavowal any intention of a strike. However, for the
most part the carpenters didn’t show up for work, and defend-
ants say that their failure to work was not because of any strike,
but, rather, the mens’ conduct was purely “voluntary” indi-
vidual action. Defendants assert that they neither influenced,
persuaded nor coerced the union carpenters not to work. The
record belies defendants’ pious contentions. Two of the union
carpenters didn’t “voluntarily” stay away from work. They
made the mistake of voluntarily showing up for work. Retribu-
tion was swift. The business representative of Local 1340 filed
charges against each of the carpenters who didn’t “voluntarily”
stay home. They were charged with, “Working behind a picket
line duly authorized by a subordinate body of the United
Brotherhood ( Building and Construction Trades Picket ) Work-
ing on Markley Motors Building, South College Avenue, Fort
Collins, Colorado, 80521, on or about the 13th of March, 1973.”
To add insult to injury, although one of the carpenters lived
in Longmont and the other in Ft. Collins, Colorado, their trial
was held in Montrose, Colorado. As sure as death and taxes,
they were convicted and fined, but as a result of later N.L.R.B.
action, the fines were set aside. Although I have admitted to
naivete in relying on the good faith of counsel, I am not so
gullible as to accept defendants’ protestations of innocence of
violation of the no strike clause of the contract. Communica-
tions between all three named defendants were open at all
times, and the entire episode was one of tripartite self help.
The record in this case convinces beyond peradventure that
Carpenters District Council of Southern Colorado violated the
no strike clause of the labor contract to which it was a party
and that Local 1340 of the International Brotherhood of Car-
penters & Joiners of America, AFL-CIO violated the same pro-
A-10
vision of the same contract which the local has now judicially
admitted was binding on it. The defendants flagrantly violated
the contract jointly and severally.
Plaintiff sustained damage as a result of those violations.
The fact of damage is certain, although the amount of damage
is somewhat less certain. Defendants did not controvert the
damage testimony, and the record made in this case permits a
finding, and I find that as a result of defendants’ contract viola-
tions, plaintiff was damaged in the amount of $6,392.52 on the
Markley Motors job and in the amount of $4,409.45 on the
Everitt job. Thus plaintiff was damaged in the total amount of
$10,801.97 as a direct and proximate result of defendants’
flagrant violations of the contract’s provisions.
Having found that defendants broke their promise not to
strike and having found the amount of damages resulting to
plaintiff as a result of defendants’ breach of contract, I must
face up to the question of whether I have jurisdiction to enter
judgment against defendants. To do this, I must decide
whether the arbitration clause covers the dispute and makes
arbitration mandatory, and, I must decide whether because of
waiver, repudiation ,estoppel, laches or any other reason, the
matter should not be sent to an arbitrator for decision.
The scope and effect of the arbitration clause in question
must be decided under Drake Bakeries v. Bakery Workers
(1962) 370 U.S. 254, and Atkinson v. Sinclair Refining Co.
(1962) 370 U.S. 238, opinions by Justice White handed down
the same day. Atkinson held that only employee grievances
were subject to arbitration, while Drake Bakeries held that all
contract disputes had to be arbitrated. In Atkinson, Justice
White explained:
“In Drake Bakeries, Inc. v. Local 50, post, decided this
day, the question of arbitrability of a damage claim for
A-ll
breach of a no strike clause is considered and resolved in
favor of arbitration in the presence of an agreement to
arbitrate ‘all complaints, disputes or grievances arising
between them [i.e. the parties] involving . . . any act or
conduct re relation between the parties.”
Admittedly, Article XIII of the Carpenters’ contract is not
word for word with either Atkinson or Drake Bakeries, and
plaintiff says that it is more comparable to Atkinson than it
is to Drake Bakeries. Defendants, of course, take the opposite
position. Without extended discussion, but after much thought,
and after study of the many Supreme Court cases favoring
arbitration, I must reluctantly agree with defendants, and I
hold that the dispute is encompassed within the mandatory
arbitration provisions of the labor contract in question.
The question then arises as to whether defendants can
insist on arbitration in light of their conduct leading up to
and during this case. That is to say, are defendants prevented
from insisting on arbitration under principles of waiver, re-
pudiation, estoppel, laches or other equitable principles; and
is this question to be decided by me or by an arbitrator? What
I shall say presently will emphasize why I wholeheartedly
agree with the views expressed by Justice Powell in Interna-
tional Union of Operating Engineers, Local 150, AFL-CIO v.
Flair Builders, (1972) 406 U.S. 487, but Justice Powell was
speaking in dissent joined in by the Chief Justice. I am bound
by the majority view, and as I read Flair Builders, it is for the
arbitrator to decide whether defendants can still insist on
arbitration.
This conclusion presents the difficult question of whether
I should dismiss this case or stay it pending arbitration. If I
dismiss the case, plaintiffs appellate rights are certain, but if
A-12
I stay it, plaintiff may have to go through an arbitration before
it can appeal, and the Court of Appeals may hold that I am
wrong in saying the disputes should be arbitrated. These fac-
tors argue in favor of dismissal.
On the other side of the coin, defendants have already
made a 180 degree turn on the arbitrability question, and if I
dismiss and plaintiff wants to arbitrate, defendants may make
it a 360 degree turn. In this event, plaintiff would have to start
all over again. Moreover, there is more than remote chance that
the arbitrator will hold that under principles of waiver, re-
pudiation, estoppel or laches, defendants cannot insist on arbi-
tration. Should either of these eventialities come to pass, if the
case has been dismissed, plaintiff would have to commence a
new lawsuit. Indeed, if there be no limit on the rule of Flair
Builders, a recalcitrant party can stall a dispute forever. These
factors argue in favor of a stay.
My inclination is to order a stay of this case pending arbi-
tration, but plaintiff is the one burdened with the dilemma
stemming from defendants’ stalling. Accordingly, I shall and
I do order that this case be stayed pending arbitration of the
questions, but, if plaintiff would prefer a dismissal to perfect
an appellate record, I will probably grant a motion to alter and
amend these findings and conclusions in this regard.
Dated at Denver, Colorado, this 19th day of November,
1974.
s/Fred M. Winner
United States District Judge
A-13
2. Order Amending Findings And Conclusions (December
27, 1974)
By memorandum opinion of November 19, 1974, I set
forth my findings of fact and conclusions of law. They contain
an inadvertent error on page 2. The following language should
be stricken from page 2:
“The other two defendants answered, and in paragraph 5
of the amended answer it is said:
5. The above named defendants deny the allegations
in paragraph 5 of the Amended Complaint. By way
of further answer, the above named defendants aver
that plaintiff and defendant District Council of South-
ern Colorado, the Defendants herein state that Local
1340 is subject to the terms and provisions of the
agreement.... As a consequence, both Defendant
Carpenter District Council of Southern Colorado and
Defendant Local 1340 would be bound by an arbitral
award issued in accordance with the provisions of
Article XIII of the collective bargaining agreement.’ ”
The following should be substituted thereior:
“Plaintiffs complaints (both the original and amended
complaint ) pleaded that plaintiff and defendants, Carpen-
ters District Council of Southern Colorado and Local 1340
were parties to the collective bargaining agreement. Both
the original answer and the amended answer filed by
Carpenters District Council of Southern Colorado and
Local 1340 denied that Local 1340 was a party to the con-
tract. Defendants did not admit in the pleadings that
Local 1340 was subject to the agreement and they did not
admit that both defendants would be bound by an arbi-
trator’s decision.”
A-14
The quotation contained in the original opinion was from
defendants’ brief submitted with the “Suggestion to Dismiss,”
and the memorandum opinion erroneously says that the quota-
tion was from paragraph 5 of the amended answer.
On page 10 of the memorandum opinion, I ordered:
“. .. that this case be stayed pending arbitration of the
questions, but, if plaintiff would prefer a dismissal to per-
fect an appellate record, I will probably grant a motion to
alter and amend these findings and conclusions in this
regard.”
Plaintiff has asked that I do amend the findings and con-
clusions to order a dismissal of the action rather than a stay.
I grant this request, and for the reasons set forth in the mem-
orandum opinion of November 19, 1974,
IT IS ORDERED that judgment enter in favor of defend-
ants and against the plaintiff, and that the action be dismissed.
Dated at Denver, Colorado, this 27th day of December,
1974.
s/Fred W. Winner
United States District Judge
B-1
APPENDIX B
TENTH CIRCUIT COURT OF APPEALS OPINION
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
REID BURTON CONSTRUCTION, INC., )
a Colorado corporation, )
Plaintiff-Appellant, )
)
v. ) No. 75-1149
)
CARPENTERS DISTRICT COUNCIL OF ) (C-5184)
SOUTHERN COLORADO, LOCAL 1340 of
the UNITED BROTHERHOOD OF CAR-
PENTERS AND JOINERS OF AMERICA,
AFL-CIO, COLORADO BUILDING AND
CONSTRUCTION TRADES © ‘UNCIL,
unincorporated associations and labor
organizations,
ee ee eee ee ee”
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Robert G. Good, Denver, Colorado, for Appellant.
John W. McKendree, Denver, Colorado, for Appellees.
Before LEWIS, Chief Judge; SETH and McWILLIAMS, Cir-
cuit Judges.
LEWIS, Chief Judge.
B-2
Two clearly drawn but different issues are involved in
this appeal: (1) Whether Reid Burton Construction’s claim for
damages arising out of the unions’ alleged violation of the no-
strike clause was arbitrable, and if so, (2) whether the unions,
because of certain pleading and procedural tactics employed
by them in the district court, were prevented by the equitable
doctrines of waiver, estoppel, repudiation, or laches from as-
serting the arbitrahility of Burton Construction’s complaint.
Finding both of these issues arbitrable, the district court dis-
missed the present action.
Since this appeal is not concerned with the merits of the
underlying damage claim, we necd only outline those facts
which led to the filing of this action. Burton Construction, a
signatory to a collective bargaining agreement with the Car-
penters District Council of Southern Colorado and its affiliated
local unions of the United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, was approached by the Colo-
rado Building and Construtcion Trades Council to sign an
agreement whereby it would only subcontract with other em-
ployers who were in contractual relationship to labor organiza-
tions affiliated with the Building Trades Council. Burton Con-
struction refused to sign the agreement and the Building
Trades Council picketed several of Burton Construction’s
building sites during parts of March and April of 1973.
In spite of a no-strike clause in the collective bargaining
agreement, union carpenters refused to cross the picket lines.
As a result, on July 13, 1973, Burton Construction filed this
damage claim in district court against the Colorado Building
and Construction Trades Council, the Carpenters District
Council of Southern Colorado, and Local 1340 of the United
Brotherhood of Carpenters and Joiners. All three of the de-
fendants made motions to be dismissed from the lawsuit. The
B-3
court did dismiss the Building Trades Council, but denied the
similar motions of the District Council and Local 1340.
In their answers filed on November 9, 1973, the District
Council and Local 1340 admitted jurisdiction under section
301 of the National Labor Relations Act as to the District
Council, but asserted that “Local 1340 is not a party to the
aforementioned collective bargaining agreement.” Also in their
answer, as an affirmative defense the District Council and
Local 1340 alles |:
This Court has no jurisdiction over the subject matter
of this action because it involves the interpretation and
application of the collective bargaining agreement... .
which is within the sole and exclusive province of the dis-
pute resolution machinery contained therein which pro-
visions contain the exclusive remedy for breaches thereof.
The unions also counterclaimed against Burton Construction,
Alleging that it had breached the collective bargaining agree-
ment by filing this action for failure to have first used the
grievance and arbitration procedures contained in the agree-
ment for processing disputes. In Burton Construction’s answer
to the counterclaim, it contended that the unions had waived
their right to arbitration and that the counterclaim was barred
because of laches.
More than a year after the complaint was filed, the unions
admitted that while they did not consider Local 1340 to be a
“party” to the collective bargaining agreement, they did con-
sider it to be “bound by the substantive terms of the agree-
ment.” The case proceeded to a trial on October 1, 1974,
wherein the trial court determined that both the alleged vio-
lation of the no-strike clause and the issue of whether estoppel,
B-4
waiver, repudiation, or laches should prevent the unions from
demanding arbitration were arbitrable issues. The trial court
based the latter determination on its reading of Operating
Engineers Local 150 v. Flair Builders, Inc., 406 U.S. 487. The
trial court initially intended to order a stay pending the arbi-
tration of these two issues, but noted that if Burton Construc-
tion would prefer, the court would dismiss the action in order to
perfect the appellate record. Burton Construction opted for
the latter and this appeal followed.
I.
The first issue of whether Burton Construction’s damage
claim for alleged breach of a no-strike clause was an arbitrable
issue must be decided by a careful analysis of Drake Bakeries
Inc. v. Local 50, Bakery Workers, 370 U.S. 254, and Atkinson
v. Sinclair Refining Co., 370 U.S. 238. Both of these cases,
which were decided the same day, were damage actions
brought by employers against the unions for violations of no-
strike or work stoppage provisions in the respective collective
bargaining agreements. In each case the unions argued that
the issues were arbitrable and that the courts should stay the
actions pending arbitration. Basing its opinion on the intended
scope and effect of each collective bargaining agreement, the
Court reached different results.
The fact that the Supreme Court reached different con-
clusions in Atkinson and Drake Bakeries is consistent with its
earlier observation in Warrier & Gulf Navigation where it
stated that “arbitration is . matter of contract and a party can-
not be required to submit to arbitration any dispute which he
has not agreed so to submit.” United Steelworkers v. Warrior
& Gulf Navigation Co., 363 U.S. 574, 582. Our first question
therefore is one of contractual interpretation—whether a viola-
ee
B-5
tion of the no-strike clause was intended by Burton Construc-
tion and the Unions to be subject to Article XIII, the grievance
and arbitration provisions of the collective bargaining agree-
ment.
Neither Drake Bakeries nor Atkinson definitively answers
our question, since the language of Article XIII falls some-
where in between the pertinent grievance and arbitration pro-
visions in those cases. In Atkinson, the Court found it per-
suasive that the grievance and arbitration clause applied only
to employee-initiated grievances and was not intended to
include “all of their possible disputes.”* The applicable griev-
ance provision in Drake Bakeries, however, was much more
broadly written—it was to include “all complaints, disputes,
or grievances arising between [the parties]”—and clearly indi-
cated that either labor or management could process a griev-
ance.? The standard of analysis used by the Court apparently
'The procedure for filing a grievance under the collective bargaining
agreement in Atkinson clearly applied only to the employee- and/or
union-initiated grievances:
It is the sincere desire of both parties that employee grievances be
settled as fairly and as quickly as possible. Therefore, when a
grievance arises, the following procedure must be followed:
2. For the purpose of adjusting employee grievances and dis-
putes as defined above, it is agreed that any — sndividually
or accompanied by his committeeman, if desired shall
(a) Seek direct adjustment of any grievance or dispute with
the foreman under whom he is employed. . .
(b) If the question is not then settled the employee may sub-
mit his grievance in writing, on forms supplied by Union... .
Quoted in Atkinson v. Sinclair Refining Co., 370 U.S. 238, 250
(Emphasis added)
“Unlike the language in Atkinson, the grievance procedure in Drake
Bakeries unequivocally was designed to allow either the employee or the
employer to initiate grievance procedures:
(a) The parties agree that they will promptly attempt to adjust
all complaints, disputes or grievances arising between them involv-
B-6
fixes on two factors: (1) Whether the grievance and arbitra-
tion provisions were wholly employee and union initated or
could be initiated by either the employees or the employer, and
(2) whether disputes over the violation of no-strike clauses
were intended by the parties to be subject to grievance and
arbitration procedures.
Each of the cases that has ruled that a violation of a no-
strike clause is not subject to arbitration has done so when the
grievance and arbitration provisions were wholly employee
and union initiated.* Burton Construction contends that Article
XIII is wholly employee initiated, citing the following lan-
guage:
ing questions of interpretation or application of any clause or matter
covered by this contract or any act or conduct or relation between
the parties hereto, directly or indirectly.
In the adjustment of such matters the Union shall be represented
in the first instance by the duly designated committee and the Shop
Chairman and the Employer shall be represented by the Shop
Management. It is agreed that in the handling of grievances there
shall be no intereference with the conduct of the business.
(b) If the Committee and the Shop Management are unable to
effect an adjustment, then the issue involved shall be submitted in
writing by the party claiming to be aggrieved to the other party.
The matter shall then be taken up for adjustment between the Union
and the Plant Manager or other representative designated by man-
agement for the purpose. If no mutually satisfactory adjustment is
reached by this means, or in any event within seven (7) days after
the submission of the issue in writing as provided above, then either
party shall have the right to refer the matter to arbitration as herein
provided.
Quoted in Drake Bakeries Inc. v. Local 50, Bakery Workers, 370 U.S.
254, 257 n.2. (Emphasis added)
’See, e.g., Friedrich v. Local 780, IUE, 5 Cir., 515 F, 255; Faultless
Division v. Local 2040, I.M. & A.W., 7 Cir., 513 F, 987,, 990; Affiliated
Food Distributors, Inc. v. Local 229, Teamsters, 3 Cir., 483 F, 418, cert.
denied, 415 U.S. 916; Firestone Tire & Rubber Co. v. Rubber Workers
Union, 5 Cir., 476 F,, 603, 605-06; G.T. Schjeldahl Co. v. Local 1680,
Machinists, 1 Cir., 393 F, 502; Boeing Co. v. UAW Local 1069, 3 Cir.,
370 F., 969.
B-7
In the event that a dispute arises involving the appli-
cation or interpretation of the terms of this agreement,
reasonable and diligent effort shall be exerted by the
employee with the employer's representative, the em-
ployee contacting the business representative through the
steward, and/or the business representative with the em-
ployer’s representative|.]
We find this language ambiguous as to whether an employer
can initiate a grievance, but in the context of the sentence im-
mediately following the quoted le~vuage, it becomes apparent
that the parties intended that either party could process a griev-
ance:
If the two parties are unable to reach a settlement,
the dispute shall be reduced to writing and the aggrieved
party shall notify the other party the dispute is being re-
ferred to a Board of Adjustment.
(Emphasis added.) Reference to the parties as “the aggrieved
party” and “the other party” is, as was the case in Drake Bak-
eries, indicative that under the agreement either party could
initiate the grievance procedure.
The second prong of the Atkinson-Drake Bakeries analysis
is one of contractual interpretation—whether the language of
Article XIII is broad enough to include alleged violations of
the no-strike clause. Article XIII provisions were intended to
cover any “dispute . . . involving the application or interpreta-
tion of the terms of th[e] agreement.” This language is much
more analogous to the language in Drake Bakeries, which the
Court determined was broad enough to cover a violation of a
no-strike clause, than to the corresponding provision in Atkin-
B-8
son.* The similarity between Article XIII and the language in
Drake Bakeries together with the Warrior & Gulf presumption
of arbitrability—that disputes should be arbitrated “unless it
may be said with positive assurence that the arbitration clause
is not susceptible of an interpretation that covers the asserted
dispute”—convinces us that the district court correctly con-
cluded that under this collective bargaining agreement, the
alleged violation of the no-strike clause was an arbitrable issue.
Il.
In its trial memorandum, Burton Construction raised the
issue of whether the unions were estopped from claiming any
right of arbitration on the basis of certain equitable principles
(e.g., repudiation, laches, waiver) because of their dilatory
pleading practices before the district court. Before confronting
this issue, however, the district court had to determine whether
judicial proceedings or arbitration was the proper forum for
determining the merits of the equitable defenses raised by
Burton Construction. Reluctantly, the district court answered
that equitable defenses should also be decided by arbitration
as mandated by Operating Engineers Local 150 v. Flair Build-
ers, Inc., 406 U.S. 487. We cannot agree with the district
court’s conclusion that in every instance where the parties of
a section 301 action are bound by a collective bargaining agree-
ment Flair Builders requires questions of waiver, repudiation,
estoppel, laches or other equitable defenses to be determined
by an arbitrator. We deem this broad conclusion to be subject
to an important limitation.
‘The parties in Drake Bakeries had agreed to attempt adjustment
of “all complaints, disputes or grievances arising between them involv-
ing questions of interpretation or application of any clause or matter
covered by” the agreement, whereas in Atkinson, the grievance procedure
only applied to “any difference regarding wages, hours or working
conditions. . . .”
B-9
The issue in Flair Builders was whether a party to a col-
lective bargaining agreement may be so dilatory in making
the existence of a “vaguely delineated dispute” known to the
other party that a court is justified in refusing to compel the
submission of an otherwise arbitrable issue to an arbitrator.
The Supreme Court did not directly answer this question, but
instead ruled that the arbitration clause in that case was so
broadly worded as to include also the arbitration of the laches
issue. The Court, noting that its decision did not excuse a
judicial examination of the scope of an arbitration clause as to
whether equitable defenses should be decided by the arbitrator
or the court, concluded that
once a court finds that, as here, the parties are subject to
an agreement to arbitrate, and that agreement extends to
“any difference” between them, then a claim that par-
ticular grievances are barred by laches is an arbitrable
question under the agreement.
Operating Engineers Local 150 v. Flair Builders, Inc., 406 U.S.
487, 491-92. Thus, Flair Builders did not determine that every
equitable defense was an arbitrable issue, but that its arbitra-
bility hinged upon the scope of the arbitration clause.
The equitable defense in the instant case arose from al-
leged “evasive” and “dilatory” pleading tactics by the unions
in the district court proceedings, specifically the fact that the
unions claimed that Local 1340 was not a party to the collec-
tive bargaining agreement, later admitting that while Local
1340 was not a party it was still bound by the provisions of
the agreement. Courts must, of course, maintain judicial con-
trol of their own proceedings. Such power, we assert, is broad
enough to include a court’s determination of the validity of
equitable defenses arising out of the action of parties before
B-10
the court. To hold otherwise would unnecessarily hamper a
court’s control of its proceedings.
We do not read Flair Builders nor its progeny as requiring
a district court to flatly forego the exercise of its traditional
powers in favor of arbitration in determining the merits of al-
leged equitable defenses. After analyzing and reviewing Flair
Builders and the subsequent cases citing it, we conclude that
Flair Builders can be confined to the proposition that certain
broadly-worded arbitration clauses require the arbitration of
equitable defenses arising out of the formation of a collective
bargaining agreement or the processing of a grievance,’ be
they intrinsic procedural questions or extrinsic questions as
defined by John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543.°
This is not an unduly narrow reading of Flair Builders. Surely,
no one would contend that an express waiver of a party's right
to demand arbitration during the course of a case in district
5See, e.g., H & M Cake Box, Inc. v. Bakery Workers Local 45, 1 Cir.,,
493 F, 1226, cert. denied, 419 U.S. 839; General Dynamics Corp. v.
Local 5, Marine and Shipbuilding Workers, 1 Cir., 469 F, 848; Operat-
ing Engineers Local 139 v. Carl A. Morse, Inc., E.D. Wis., 387 F. Supp.
153; Local 552, Brick and Clay Workers v. Hydraulic Press Brick Co..,
S.D. Mo., 371 F. Supp. 818. But see Ladies’ Garment Workers’ Union v.
Ashland Industries, Inc., 5 Cir., 488 F,, 641, cert. denied, 419 U.S. 840.
*Two cases citing Flair Builders, however, have called for the arbitration
of equitable defenses not arising out of the processing of a grievance or
the formation of a collective bargaining agreement. Controlled Sanitation
Corp. v. District 28, LM. & A.W., 3 Cir., 524 F, 1324, cert. denied, 44
U.S.L.W. 3471; Local 542, Operating Engineers v. Penn State Construc-
tion, Inc., M.D. Pa., 356 F. Supp. 512. In each of these section 301
actions, the defendants alleged arbitrability of the underlying dispute.
Because of certain pleading delays on the part of the defendants, the
plaintiffs in each case countered the arbitrability claim, asserting that
the defendants had waived or repudiated their right to arbitrate the dis-
pute. As was the case with the district court in this instance, the courts
held that Flair Builders mandated the arbitration of the waiver and
repudiation defenses, but neither court focused on what we have deter-
mind to be a crucial distinction—a court’s inherent and unrestricted
power to control the judicial functions.
B-11
court would not be adequate legal grounds for the disttict
court to proceed to the merits of an otherwise arbitrable dis-
pute without requiring arbitration.
The test employed by the Supreme Court in Flair Builders
to determine the arbitrability of the laches issue was whether
the parties had, by the language of the collective bargaining
agreement, intended that such a dispute be arbitrable. Follow-
ing this test, we must determine whether Burton Construction
and the unions agreed to arbitrate any questions of equitable
defenses arising out of misconduct in court cases in which the
two were parties, As discussed eariier, the language of Article
XIII was broad enough to include disputes dealing with viola-
tions of the no-strike provision and would probable cover the
type of laches defense raised in Flair Builders, but we do not
believe that the parties ever intended to include the arbitration
of equitable defenses arising out of actions by a party in pro-
ceedings before a district court. Indeed, even had the parties
so intended, we would conclude that such an agreement would
clearly exceed the proper subject matter of a collective bar-
gaining agreement and would not be enforceable in court; it
would be improper for the prospective parties of a lawsuit to
attempt by contract to bind the exercise of a court’s inherent
judicial function.
Allowing federal courts to retain jurisdiction under section
301 of the National Labor Relations Act of an otherwise arbi-
trable dispute because of certain misconduct of one of the
parties in the judicial proceedings themselves which gives rise
to some type of estoppel to claim arbitrability is not inconsis-
tent with the strong national labor policy favoring arbitration
of labor disputes. As noted earlier, this policy is partly pre-
mised on the understanding that
B-12
arbitration is a matter of contract and a party cannot be
required to submit to arbitration any dispute which he has
not agreed so to submit. . . . An order to arbitrate .. .
should not be denied unless it may be said with positive
assurance that the arbitration clause is. not susceptible of
an interpretation that covers the asserted dispute.
United Steelworkers v. Warrior & Gulf Navigation Co., 363
U.S. 574, 582-83. If it can be concluded with “positive assur-
ance” that the parties did not intend to arbitrate certain dis-
putes, the policy favoring arbitration does not come into play.
As discussed above, the parties in this case neither intended
nor had the power to require arbitration of certain equitable
defenses that have traditionally been decided exclusively by
the courts.
In conclusion ,therefore, we hold that the trial court erred
in ruling that it was “bound” by Flair Builders to submit to
arbitration the question of whether the unions should be pre-
vented from demanding arbitration because of “evasive” and
“dilatory” pleading practices before the court. It is entirely
appropriate in some instances for a district court to retain sec-
tion 301 jurisdiction of an arbitrable dispute where, because
of conduct vefore the court, it may be deemed that a party is
prevented on the basis of some equitable principle from assert-
ing a right to arbitration. Whether the instant case is one
such instance has not been decided. Therefore, we remand
this case for such a determination. If the district court finds
that there has been no estoppel or waiver because of the
unions’ conduct in pleading, then it is proper to order arbitra-
tion of the underlying dispute—the alleged violation of the no-
strike clause. If on the other hand it is determined that the
unions have waived their right to arbitration, or in some other
way should be prevented from asserting this right, because of
B-13
conduct which falls within the control of the court, then the
district court can properly proceed to the merits of the under-
lying dispute.
In sum we conclude that the enumerated equitable de-
fenses discussed are, in general, mandated by Flair Builders to
the arbitrator for determination of the continued vitality of the
contractual arbitration process. However, if such defenses
arise solely during the course of the judicial process the arbi-
trator is not the one to determine whether the judicial process
has been abused by either party or at all or whether an equit-
able defense to the main dispute has been established during
the course of the judicia) trial by in-trial conduct.
Remanded.
C-l
APPENDIX C
SELECTED PLEADINGS*
1. Respondent's Complaint for Damages and Injunction
(July 13, 1973) —
COMES NOW the Plaintiff, Reid Burton Construction,
Inc., by its attorneys, Law Offices of Robert G. Good, Denver,
Colorado, and for a cause of action against Defendants alleges
and states as follows:
1. Plaintiff is a corporation organized under and existing
by virtue of the laws of the State of Colorado, with principle
office and place of business at Fort Collins, Colorado.
2. Defendants, and each of them, are labor organizations
within the meaning of the National Labor Relations Act, as
amended, 29 U.S.C. §151, et seq. Defendant Local 1340 has
its principle office at Fort Collins, Colorado, Defendant Car-
penters District Council of Southern Colorado has its principle
office at Colorado Springs, Colorado, and Defendant Colorado
Building and Construction Trades Council has its principle of-
fice at Denver, Colorado.
3. Defendants, and each of them, represent employees
in an industry affecting commerce and Plaintiff is an employer
C-2
in an industry affecting commerce, as that term is defined in
the National Labor Relations Act, 29 U.S.C. § 152.
4. Jurisdiction over this action is granted the Court by
the provisions of 29 U.S.C. §185.
5. Plaintiff and Defendants, Carpenters District Council
of Southern Colorado and Local 1340 of the International
Brotherhood of Carpenters and Joiners of America, AFL-CIO,
are parties to a collective bargaining agreement known as “Car-
penters’ Agreement, Carpenters District Council of Southern
Colorado.” At all times material herein such collective bar-
gaining agreement was in full force and effect and governed
the relationship between the aforementioned parties.
6. Said collective bargaining agreement contains prom-
ises by Local 1340 and by the Carpenters District Council of
Southern Colorado that they and their members will not strike
or picket the Plaintiff during the term of the agreement. Said
collective bargaining agreement further defines the relation-
ship of the Plaintiff to Plaintiff's contractors or subcontractors
on construction sites in so far as all the requirements, condi-
tions and intents of the said collective bargaining agreement
applies to said contractors or subcontractors of Plaintiff.
7. Defendant, Colorado Building and Construction Trades
Council, is an unincorporated association and an amalgamation
of numerous labor organizations in the building and construc-
tion industry in the State of Colorado, including Defendant
Local 1340 and Defendant Carpenters District Council of
Southern Colorado. Defendant Colorado Building and Con-
struction Trades Council is authorized by its constituent
unions, including Defendant Local 1340 and Defendant Car-
penters District Council of Southern Colorado, to represent
C-3
them for purposes relating to labor relations, and as such the
Defendant Colorado Building and Construction Trades Council
is an agent of its constituent unions.
8. On or about February 25, 1973, a representative of
Defendant Colorado Building and Construction Trades Coun-
cil, submitted to Plaintiff herein for its requested signature a
labor agreement which would require, inter alia, that Plaintiff
contract only with union subcontractors in the future on all its
construction sites, which union subcontractors must have
signed union agreements with the various construction trades,
including subcontractors performing carpenter work.
9. When Plaintiff refused to sign the labor agreement
described above in paragraph eight, Defendant Colorado
Building and Construction Trades Council commenced picket-
ing a Fort Collins construction site of Plaintiff on or about
March 8, 1973 and continued to do so until on or about
March 16, 1973. On or about April 3, 1973, and continuing to
on or about . pril 13, 1973, such picketing was resumed by
Defendant Colorado Building and Construction Trades Council
where the object thereof was to force Plaintiff to sign the sub-
mitted labor agreement.
10. The picketing described above in paragraph nine was
implicity and/or expressly authorized by and/or ratified by the
constituent labor organizations which are members of the Colo-
rado Building and Construction Trades Council, including De-
fendants Local 1340 and Defendant Carpenters District Coun-
cil of Southern Colorado, and at all times Defendant Colorado
Building and Construction Trades Council was acting within
the scope of its authority from its members.
11. During the period of the picketing described above
C-4
in paragraph nine, Defendant Local 1340 and Defendant Car-
penters District Council of Southern Colorado, by its repre-
sentatives, induced, encouraged or coerced its employee mem-
bers to cease performing work for Plaintiff on the subject con-
struction site and otherwise endorsed, enforced and supported
the picket of Defendant Colorado Building and Construction
Trades Council.
12. The picketing of Defendant Colorado Building and
Construction Trades Council, as described above in paragraph
nine, resulted in Plaintiff's construction site being temporarily
shut down in whole or in part during the period of said picket-
ing, thus subjecting Plaintiff to monetary losses in the approxi-
mate amount of $1,000.00 per day, which amount cannot be
definitely ascertained at this time, but will be at the time of
trial of this cause.
13. The labor agreement submitted for signature by De-
fendant Colorado Building and Construction Trades Council,
as agent for Defendant Local 1340 and Defendant Carpenters
District Council of Southern Colorado, among others, would
require Plaintiff to conduct his business at its construction sites
relative to labor relations in a manner that is not required under
its existing agreement with Defendant Local 1340 and Defend-
ant Carpenters District Council of Southern Colorado. By the
action of the Defendant Colorado Building and Construction
Trades Council as agent for Defendant Local 1340 and De-
fendant Carpenters District Council of Southern Colorado, the
two aforementioned Carpenter Defendants are attempting to
change the provisions of their existing collective bargaining
agreement and thus have violated the terms of that agreement
and have caused Plaintiff damages in their attempt to make
such change.
14. The action of Defendant Local 1340 and Defendant
——— rr re err errr > tre nr 0 ns crm err re = a eee
C-5
Carpenters District Council of Southern Colorado in endors-
ing and supporting the picket line established by its agent,
Defendant Colorado Building and Construction Trades Coun-
cil, and the action of the two Carpenter Defendants aforemen-
tioned in inducing and encouraging and/or coercing its mem-
bers to refuse to work for Plaintiff, also constitutes a breach of
their contract promises not to strike or picket Plaintiff during
the term of their collective bargaining agreement. By such
action, the two Carpenter Defendants further contributed to
the damages suffered by Plaintiff as described above.
15. Defendant Colorado Building and Construction
Trades Council, by its representatives, continues to request
Plaintiff to sign its labor agreement as described above, and
continues to threaten to picket Plaintiff as done previously
where the object thereof is to force Plaintiff to sign said agree-
ment and it can be reasonably anticipated that unless enjoined,
Defendant Colorado Building and Construction Trades Coun-
cil, as agent for the two Carpenter Defendants herein, will
continue to do so.
WHEREFORE, Plaintiff prays this Honorable Court to
enter judgment in favor of Plaintiff ogainst all Defendants
jointly and severally, in the approximate amount of $16,000.00
to compensate Plaintiff for its monetary losses during said
picketing, such amount to be more definitely ascertained at
the time of trial of this action. The Court is further requested
to enter an order forever restraining Defendant Colorado
Building and Construction Trades Council, as agent for the
two Carpenter Defendants herein, from picketing Plaintiff
where the object thereof is to force or require Plaintiff to sign
the aforementioned labor agreement; the Court is further re-
quested to restrain Defendant Local 1340 and Defendent Car-
penters District Council of Southern Colorado from authoriz-
C-6
ing the Defendant Building Trades Council to picket Plaintiff
or to solicit Plaintiff's signature on the subject labor agreement,
and from supporting and endorsing the picket line of Defend-
ant Building Trades Council and from inducing, encouraging
and/or coercing their members to respect the picket line of
said Building Trades Council.
‘
;
FURTHER, this Court is urged to award Plaintiff reason-
able attorney's fees, costs, interest, and such other and further
relief as this Court may deem proper.
2. Colorado Building and Construction Trades Council’s
Motion to Dismiss (August 6, 1973)
COMES NOW the defendant Colorado Building and Con-
struction Trades Council, by and through its attorneys Horn-
bein & Hornbein, and moves this Honorable Court to enter an
Order dismissing plaintiff's Complaint;
AND AS GROUNDS THEREFORE defendant Colorado
Building and Construction Trades Council shows unto this
Honorable Court:
1. That this Honorable Court lacks jurisdiction over the
subject matter of plaintiff's Complaint;
2. That plaintiff has failed to join parties necessary and
indispensable under Fed R. Civ. P. 19;
3. That plaintiff's Complaint fails to state a claim upon
which relief can be granted.
3. Petitioners’ Motion to Dismiss (August 6, 1973)
eee ee
Ce el
C-7
COME NOW the defendants, Carpenters District Council
of Southern Colorado and Local No. 1340 of the International
Brotherhood of Carpenters and Joiners of America, AFL-CIO
by and through their attorneys, Hemminger, McKendree,
Vamos & Elliott, P.C. and move this Honorable Court to enter
an Order dismissing plaintiffs Complaint,
AND AS GROUNDS THEREFORE defendants Carpen-
ters District Council of Southern Colorado, Local No. 1340 of
the International Brotherhood of Carpenters and Joiners of
America, AFL-CIO show unto this Honorable Court:
1. That this Honorable Court lacks jurisdiction over the
subject matter of plaintiff's Complaint;
2. That plaintiff has failed to join parties necessary and
indispensable under Fed R. Civ. P. 19;
3. That plaintiff's Complaint fails to state a claim upon
which relief can be granted.
4. Excerpts from Petitioners’ and Colorado Building and
Construction Trades Council's Brief in Support of Motions
to Dismiss (August 20, 1973)
IV. THE COURT LACKS JURISDICTION OF
THE SUBJECT MATTER OF PLAINTIFF'S
COMPLAINT, AND THE COMPLAINT FAILS
TO STATE A CLAIM UPON WHICH RELIEF
CAN BE GRANTED BY VIRTUE OF THE
NORRIS-LAGUARDIA ACT, 47 STAT. 70, 29
U.S.C, $101 - 115.
A careful analysis of the Complaint reveals that plaintiff
is actually asking this Honorable Court to enjoin the Building
Trades Council from picketing with an objective to force or
C-8
require plaintiff to sign an agreement with defendant Building
Trades Council. As regards defendants District Council and
Local 1340, plaintiff seeks an order from this Honorable Court
directed to such defendants directing them not to authorize
defendant Trades Council to picket plaintiff or to solicit plain-
tiffs signature on a labor agreement and further, to restrain
defendants District Council and Local 1340 from supporting
such picket as may be established by defendant Trades Council
or from inducing, encouraging and/or coercing their members
to respect picket lines allegedly established by defendant
Trades Council.
As demonstrated herein, this court lacks jurisdiction to
order the relief requested in plaintiff's Complaint. The Norris-
LaGuardia Act forbids the exercise of injunctive powers by
Federal Courts in cases involving or growing out of a labor
dispute. The interdictions of the Norris-LaGuardia Act has
not been limited or repealed either expressly or impliedly by
§301(a) or the Labor Management Relations Act of 1947, as
amended. In addition, the Complaint on its face fails to state
a claim upon which injunctive relief can be granted in this
case, since the Norris-LaGuardia Act prescribes rigid require-
ments which must be met before the strictly limited exceptions
of the statute may be applied in granting jurisdiction to the
Court. In addition, the Complaint wholly fails to allege any
conduct on the part of any of the defendants herein in the
nature of which the Court might find as being unlawful with-
in the meaning of §7 or any other provision of Norris-
LaGuardia. Inasmuch as the applicable law is somewhat dif-
ferent with respect to defendant Building Trades Council as
opposed to defendants Local Union 1340 and the District
Council, the applicable legal requirements are discussed sep-
arately for these defendants. Preliminarily, however, certain
C-9
general legal principals are applicable for both and are initially
described herein.
In view of the recent decision of the United States Su-
preme Court in Boy’s Market, Inc., v. Retail Clerks, 398 U.S.
235, 75 LRRM 2257 (1970), it is appropriate to examine the
scope of that decision at some length at it relates particularly
to the allegations in plaintiff's Complaint herein that the al-
leged agreement with defendant Local 1340 and defendant
District Council contains a promise that such organization will
not strike or picket plaintiff.
In the Boy’s Market decision the Supreme Court re-
examined its holding in Sinclair Refining Company v. Atkinson,
370 U.S. 195, 50 LRRM 2420 (1962) to the effect that the anti-
injunction provisions of the Norris-LaGuardia Act preclude a
Federal Court from enjoining a strike in breach of a no-strike
obligation under a collective bargaining agreement even though
that agreement contains provisions enforceable under $301 (a)
of the Labor Management Relations Act for binding arbitration
of the grievance dispute concerning which the strike was
called.
Briefly stated, the facts involved in Boy’s Market are as
follows: the parties had a collective bargaining agreement
which contained a provision for adjustment of disputes and
arbitration which arose during the life of the agreement and
a no-strike provision. The dispute giving rise to the litigation
arose when a company supervisor and certain members of his
crew were not members of the bargaining unit described in
the collective bargaining agreement began to perform certain
bargaining unit work. A union representative insisted that all
the work should be re-done by union persononnel. When the
——
C-10
company did not accede to this demand of the union a strike
was called and the union began to picket the company’s estab-
lishment. Thereupon, the company demanded that the union
cease the work stoppage and picketing and sought to invoke
the grievance and arbitration procedures specified in the agree-
ment. When the strike was not terminated pursuant to such
demand a civil action was instituted in the state courts which
resulted in the issuance of a temporary restraining order.
Thereafter the union removed the case to the Federal District
Court and moved to quash the state’s temporary restraining
order. The company countered by moving for an order com-
pelling arbitration and enjoined continuation of the strike. The
United States District Court thereafter concluded that the dis-
pute was subject to arbitration under the collective bargaining
agreement, that the strike was in violation of the agreement,
and the Court ordered the parties to arbitrate and simultan-
eously enjoined the strike and all picketing.
The United States Supreme Court initially determined
that the doctrine of stare decisis does not bar a re-examination
of its earlier decision in Sinclair v. Atkinson. The majority's
decision opined that because Sinclair stood as a significant
departure from its otherwise consistent emphasis upon a Con-
gressional policy to promote peaceful settlement of labor dis-
putes through arbitration and its efforts to accomodate and
harmonize this policy with those underlying the anti-injunction
provisions of the Norris-LaGuardia Act, that Sinclair had to be
reconsidered. The court went on to state that in view of the
developments since Sinclair, including its own decision of Avco
Corp. v. Aero Lodge 735, 390 U.S. 557, 67 LRRM 2881 (1968)
its earlier Sinclair decision had resulted in a serious frustration
of important goals in the nation’s labor policies. The U.S. Su-
preme Court went on to then review its decisions interpreting
a Federal Labor policy promoting peaceful settlement of
C-1l
labor disputes through arbitration by concluding that the
Norris-LaGuardia Act did not deprive Federal Courts of juris-
diction to mandate parties to utilize the contractual grievance
and arbitration machinery, In this connection the Court ex-
earnined its decisions in Textile Workers Union v. Lincoln Mills,
supra., Charles Dowd Box Co. v. Courtney, Supra., Teamsters
Local 174 v. Lucas Flour Co., Supra., and Avco Corp. v. Aero
Lodge 735, Supra. Thereafter the Supreme Court stated:
“IV. We have also determined that the dissenting opinion
in Sinclair states the collect principals concerning the ac-
commodation necessary between the seemingly absolute
terms of the Norris-LaGuardia Act and the policy consid-
erations underlying §301(a).”
| 370 U.S., et 215.
Although we need not repeat all that was there said, a few
points should be emphasized at this time:
“The literal terms of $4 of the Norris-LaGuardia Act must
be accommodated to the subsequently enacted provisions
of §301(a) of the Labor Management Relations Act and
the purposes of arbitration. Statutory interpretation re-
quires more than concentration upon isolated words;
rather, consideration must be given to the total corpus of
pertinent law and the policies which inspired ostensible
inconsistent provisions. (Citations omitted).
The Norris-LaGuardia Act was responsive to a situation
totally different from that which exists today... .”
“In 1932 Congress attempted to bring some order out of
the industrial chaos that had developed and to correct the
abuses which had resulted from the interjection of the fed-
C-12
eral judiciary into union-management disputes on the be-
half of management. See declaration of public policy,
Norris-LaGuardia Act, §2, 47 Stat. 70 (1932). Congress,
therefore, determined initially to limit severely the power
of the Federal Courts to issue injunctions ‘in any case in-
volving or growing out of any labor dispute. . . .’ 47 Stat.
70. Even as initially enacted, however, the prohibition
against Federal injunction was by no means absolute. See
Norris-LaGuardia Act, §$7, 8, 9, 47 Stat. 70 (1932). Short-
ly thereafter, Congress passed the Wagner Act, designed
to curb various management activities which tended to
discourage employee participation in collective action.
As labor organizations grew in strength and developed
towards maturity, Congressional emphasis shifted from
protection of the nascent labor movement to the encour-
agement of collective bargaining and to administrative
techniques for the peaceful resolution of industrial dis-
putes. This shift in emphasis was accomplished, however,
without extensive revision of many of the older enact-
ments, including the anti-injunction section of the Norris-
LaGuardia Act. Thus, it became the tasks of the court to
accommodate, to reconcile the older statutes with the
more recent ones.”
“. . we conclude therefore, that the unavailability of
equitable relief in the arbitration context presents a serious
impediment to Congressional policy favoring the volun-
tary establishment of a mechanism for the peaceful resolu-
tion of labor disputes, that the whole purpose of the Nor-
ris-LaGuardia Act is not sacrificed by the limited use of
equitable remedies to further this important policy, and
C-13
consequently, that the Norris-LaGuardia Act does not bar
the granfing of injunctive relief in the instant case.”
74 LRRM at 2262-2264.
The United States Supreme Court in this decision, how-
ever, did not find the Norris-LaGuardia Act unconstitutional
and sweep it away, but, on the contrary, reached a very narrow
decision with respect to the application of the Norris-La-
Guardia Act on Federal Court jurisdiction. Specifically, the
Supreme Cour: stated, “we do not undermine the vitality of
the Norris-LaGuardia Act.” The Court stated, “we deal only
with the situation in which a collective bargaining contract
contains, a mandatory grievance or arbitration procedure.” The
Court went on ¢w state:
“,.- nor does it follow from what we have said that injunc-
tive relief is appropriate as a matter of course in every case
of a strike over an arbitrable grievance. The dissenting
opinion in Sinclair suggests the following principles for
the guidance of the District Courts in determining whether
to grant injunctive reliem — principles which we now
adopt:
‘A District Court entertaining an action under $301
may not grant injunctive relief against concerted ac-
tivity unless and until it decides that the case is one
in which an injunction would be appropriate despite
the Norris-LaGuardia Act. When a strike is sought to
be enjoined because it is over a grievance which both
parties are contractually bound to arbitrate, the Dis-
trict Court may issue no injunctive order until it
first holds that the contract does have that affect; and
the employer should be ordered to arbitrate, as a con-
dition of his obtaining an injunction against the strike.
C-14
Beyond this, the District Court must, of course, con-
sider whether issuance of an injunction would be war-
ranted under ordinary principles of equity — whether
breaches are occurring and will continue, or have
been threatened and will be commited; whether they
have caused or will cause irreparable injury to the
employer; and whether the employer will suffer more
from the denial of an injuction that will the union
from its issuance.’ 370 U.S. at 228...” See 74 LRRM
at 2264; (emphasis supplied ).
As a consequence, the Supreme Court in its Boy's Market
decision determined that in that particular case there was no
dispute, that the grievance in question was not only the reason
for the strike and picketing, but was also a dispute which was
subject to adjustment and arbitration under the collective bar-
gaining agreement, and that the company was ready to proceed
with arbitration at the time the injunction against the strike
was sought and obtained. In addition the Supreme Court
noted the conclusion by the District Court that the alleged
violation of the no-strike obligation resalted in the employer
suffering irreparable injury and the fact that the company
would continue to suffer irreparable injury unless the strike
was enjoined. For those reasons the Supreme Court then over-
ruled Sinclair and the Court of Appeals, who had relied on the
Supreme Court’s decision in Sinclair.2 As one examines this
decision in light of the allegations contained in plaintiff's
Complaint, several deficiencies in plaintiff's Complaint emerge.
For example, plaintiff does not allege that it will suffer irre-
parable harm and that it will continue to suffer such irrepar-
able harm and injury unless the court enters the restraining
order requested. Courts ought not to lightly infer jurisdiction,
particularly when complaints which seek jurisdiction are de-
2Justice Stewart concurred and Justices Black and White dissented.
C-15
fective in their pleadings. But more importantly, not only
does plaintiff's Complaint fail to allege the existence of a
grievance and arbitration machinery, it even fails to allege
that the dispute or alleged dispute upon which it seeks injunc-
tive relief is a dispute which is also subject to the grievance
and arbitration machinery of the collective bargaining agree-
ment. In this connection, the United States Court of Appeals
for the 5th Circuit in its Amstar Corp. v. Meatcutters decision,
F.2d 81 LRRM 2644 (1972) held that the dis-
trict court erred when it granted an employer an order enjoin-
ing a strike, and compe'iing arbitration of a dispute involving
the refusal of union members to cross the picket line estab-
lished by another union because the strike was not over a griev-
ance which was subject to the arbitration provisions of the
collective bargaining agreement involved. The 5th Circuit in
reaching this decision concluded that the United States Su-
preme Court, in an attempt to accommodate the literal terms
of §4 of the Norris-LaGuardia Act to the subsequently enacted
provisions of §301(a) of the Taft-Hartley Act established pre-
requisites to jurisdiction in a Federal Court before it can en-
join a strike. These criteria are {1) the strike must be in breach
of a no-strike obligation under an effective collective bargain-
ing agreement. (2) The strike must be “over” an arbitrable
grievance. And, (3) both parties must be contractually bound
to arbitrate the underlying grievance which caused the strike.
As regards the allegations in the instant Complaint, plaintiff
has failed to allege any of these criteria. Also see Paradise
Publications, Inc. v. Philadelphia Mailers Union, Local No. 13,
3rd Cir., 459 F. 2d 369 (80 LRRM 2264) (1972).
Regarding plaintiff's allegations against defendant Build-
ing Trades Council, however, no allegations have been made,
as required under Norris-LaGuardia, in order to provide unto
this Court jurisdiction to enter an order seeking injunctive
relief, as discussed in greater detail infra.
C-16
The United States District Court for the District of Mary-
land has followed a similar rationale in its decision General
Cable Corp. v. I.B.E.W. Local 1644, 331 F.Supp. 478, 77
LRRM 3053 (1971). In this case the United States District
Court ruled that it did not have jurisdiction to issue an injunc-
tion against a union that engaged in strike activity allegedly in
violation of a no-strike clause of a collective bargaining agree-
ment where the strike was not over a grievance which was sub-
ject to arbitration under such agreement. In its decision, the
District Court opined:
“,.. in the present case the strike or work stoppage is not
over a grievance which is subject to arbitration under the
collective bargaining agreement. (Citations ommited).
The only dispute between the company and Local 1644 is
the result of the strike and not the cause of the strike. It
does not come within the narrow exception created by the
rule in Boy’s Market to the applicability of the Norris-
LaGuardia Act.”
Here again, plaintiff's Complaint fails to meet even any allega-
tion that the alleged activities of any of the defendants upon
which alleged picketing occurred concerns itself with a griev-
ance which is subject to arbitration under the contract.
5. Respondent’s Amended Complaint (September 14, 1973)
COMES NOW the Plaintiff, Reid Burton Construction
Inc., by its attorneys, Law Offices of Robert G. Good, Denver,
Colorado, and for a cause of action against Defendants alleges
and states as follows:
1. Plaintiff is a corporation organized under and existing
C-17
by virtue of the laws of the State of Colorado, with principle
office and place of business at Fort Collins, Colorado.
2. Defendants, and each of them, are labor organizations
within the meaning of the National Labor Relations Act, as
amended, 29 U.S.C. § 151, et seq. Defendant Local 1340 has
its principle office at Fort Collins, Colorado, Defendant Car-
penters District Council of Southern Colorado has its principle
office at Colorado Springs, Colorado, and Defendant Colorado
Building and Construction Trades Council has its principle
office at Denver, Colorado.
3. Defendants, and each of them, represent employees in
an industry affecting commerce and Plaintiff is an employer in
an industry affecting commerce, as that term is defined in
the National Labor Relations Act, 29, U.S.C. §152.
4. Jurisdiction over this action is granted the Court by the
provisions of 29 U.S.C. $185.
5. Plaintiff and Defendants, Carpenters District Council
of Southern Colorado and Local 1340 of the International
Brotherhood of Carpenters and Joiners of America, AFL-CIO,
are parties to a collective bargaining agreement known as
“Carpenters’ Agreement, Carpenters District Council of South-
ern Colorado.” At all times material herein such collective
bargaining agreement was in full force and effect and governed
the relationship between the aforementioned parties.
6. Said collective bargaining agreement contains promises
by Local 1340 and by the Carpenters District Council of
Southern Colorado and they and their members will not strike
or picket the Plaintiff during the term of the agreement. Said
collective bargaining agreement further defines the relation-
C-18
ship of the Plaintiff to Plaintiff's contractors or subcontractors
on construction sites in so far as all the requirements, condi-
tions and intents of the said collective bargaining agreement
applies to said contractors or subcontractors of Plaintiff.
7. Defendant, Colorado Building and Construction Trades
Council, is an unincorporated association and an amalgamation
of numerous labor organizations in the building and construc-
tion industry in the State of Colorado, including Defendant
Local 1340 and Defendant Carpenters District Council of
Southern Colorado. Defendant Colorado Building and Con-
struction Trades Council is authorized by its constituent unions,
including Defendant Local 1340 and Defendant Carpenters
District Council of Southern Colorado, to represent them for
purposes relating to labor relations, and as such the Defendant
Colorado Building and Construction Trades Council is an
agent of its constituent unions.
8. On or about February 25, 1973, a representative of
Defendant Colorado Building and Construction Trades Coun-
cil submitted to Plaintiff herein for its requested signature a
labor agreement which would require, inter alia, that Plaintiff
contract only with union subcontractors in the future on all its
construction sites, which union subcontractors must have
signed union agreements with the various construction trades,
including subcontractors performing carpenter work.
9. When Plaintiff refused to sign the labor agreement de-
scribed above, in paragraph eight, Defendant Colorado Build-
ing and Construction Trades Council commenced picketing a
Fort Collins construction site of Plaintiff on or about March 8,
1973 and continued to do so until on or about March 16, 1973.
Or. or about April 3, 1973, and continuing to on or about April
1%, 1973, such picketing was resumed by Defendant Colorado
—
C-19
Building and Construction Trades Council where the object
thereof was to force Plaintiff to sign the submitted labor agree-
ment.
10. The picketing described above in paragraph nine was
implicitly and/or expressly authorized by and/or ratified by
the constituent labor organizations which are members of the
Colorado Building and Construction Trades Council, including
Defendants Local 1340 and Defendant Carpenters District
Council of Southern Colorado, and at all times Defendant
Colorado Building and Construction Trades Council was act-
ing within the scope of its authority from its members.
11. During the period of the picketing described above
in paragraph nine, Defendant Local 1340 and Defendant Car-
penters District Council of Southern Colorado, by its repre-
sentatives, induced, encouraged or coerced its employee mem-
bers to cease performing work for Plaintiff on the subject con-
struction site anc otherwise endorsed, enforced and supported
the picket of Defendant Colorado Building and Construction
Trades Council.
12. The picketing of Defendant Colorado Building and
Construction Trades Council, as described above in paragraph
nine, resulted in Plaintiff's construction site being temporarily
shut down in whole or in part during the period of said picket-
ing, thus subjecting Plaintiff to monetary losses in the approxi-
mate amount of $1,000.00 per day, which amount cannot be
definiately ascertained at this time, but will be at the time of
trial of this cause.
13. The labor agreement submitted for signature by De-
fendant Colorado Building and Construction Trades Council,
as agent for Defendant Local 1340 and Defendant Carpenters
C-20
District Council of Southern Colorado, among others, would
require Plaintiff to conduct his business at its construction sites
relative to labor relations in a manner that is not required
under its existing agreement with Defendant Local 1340 and
Defendant Carpenters District Council of Southern Colorado.
By the action of the Defendant Colorado Building and Con-
struction Trades Council as agent for Defendant Local 1340
and Defendant Carpenters District Council of Southern Colo-
rado, the two aforementiosed Carpenter Defendants are at-
tempting to change the provisions of their existing collective
bargaining agreement and thus have violated the terms of that
agreement and have caused Plaintiff damages in their attempt
to make such change.
14. The action of Defendant Local 1340 and Defendant
Carpenters District Council of Southern Colorado in endorsing
and supporting the picket line established by its agent, De-
fendant Colorado Building and Construction Trades Council,
and the action of the two Carpenter Defendants aforemen-
tioned in inducing and encouraging and/or coercing its mem-
bers to refuse to work for Plaintiff, also constitutes a breach of
their contract promises not to strike or picket Plaintiff during
the term of their collective bargaining agreement. By such
action, the two Carpenter Defendants further contributed to
the damages suffered by Plaintiff as described above.
WHEREFORE, Plaintiff prays this Honorable Court to
enter judgment in favor of Plaintiff against all Defendants
jointly and severally, in the approximate amount of $16,000.00
to compensate Plaintiff for its monetary losses during said
picketing, such amount to be more definitely ascertained at
the time of trial of this action.
FURTHER, this Court is urged to award Plaintiff reason-
C-21
able attorney’s fees, costs, interest, and such other and further
relief as this Court may deem proper.
6. Petitioners’ Answer and Counterclaim (November 9,
1973)
ANSWER
COMES NOW the defendants, Carpenters District Coun-
cil of Southern Colorado and Local 1340 of International
Brotherhood of Carpenters and Joiners of America, by their
attorneys, Hemminger, McKendree, Vamos & Elliott, P.C., and
file the within Answer and Counterclaim to the Amended
Complaint in this matter as follows:
1. Defendants Carpenters District Council of Southern
Colorado and Local 1340 of International Brotherhood of Car-
penters and Joiners of America admit the allegations contained
in paragraph 1 of the Amended Complaint.
2, 3. Defendants above-named admit the allegations con-
tained in paragraph 2 and 3 of the Amended Complaint, except
to the extent that said allegations relate to the defendant Colo-
rado Building and Construction Trades Council.
4. Defendants above named admit in part and deny in
part the allegations contained in paragraph 4 of the Amended
Complaint; admitted as to defendant Carpenters District
Council of Southern Colorado and denied as to defendant
Local 1340 and defendant Colorado Building and Construction
Trades Council.
5. The above named defendants deny the allegations con-
tained in paragraph 5 of the Amended Complaint. By way of
ee Se ee ae
C-22
further answer, the above named defendants aver that plaintiff
and defendant Carpenters District Council of Southern Colo-
rado are parties to a collective bargaining agreement known as
“Carpenters Building Construction 1972-75 Agreement” effec-
tive May 1, 1973 until April 30, 1975. Defendant Local 1340
is not a party to the aforementioned collective bargaining
agreement.
6. Defendant Local 1340 denies the allegations contained
in paragraph 6 of the Amended Complaint. Defendant Car-
penters District Council of Southern Colorado denies as stated
the allegations contained in paragraph 6 of the Amended Com-
plaint. By way of further answer the defendant Carpenters
District Council of Southern Colorado avers that the afore-
mentioned collective bargaining agreement contains in Article
XIII the following provision pertinent to strikes, work stop-
pages, etc.:
“Section 5. — The parties agree there shall be no strike,
work stoppage, slowdown, lockout or other interruption of
the continuity of the work in progress during the life of
this Agreement unless a party refuses to abide by or to
implement the majority decision of the Board of Adjust-
ment. P
Any party to this Agreement who fails to abide by or
refuses to adjust a dispute by the terms of this Article
shall be in violation of this Agreement, and any other
party or parties may take such appropriate economic
action as deemed necessary against such person or parties.”
and contains in Article IV the following provision pertinent to
subcontractors:
C-23
“ARTICLE IV
SUB-CONTRACTORS
The Employer agrees that contractors or subcontrac-
tors to whom subcontracts are let verbally or written shall
be required to comply with all requirements, conditions
and intents of this Agreement, and shall continue to do so
throughout all parts of their subcontract work as to all
carpenter work performed on any construction site coming
under the jurisdiction of the United Brotherhood of Car-
penters and Joiners of America,
The subcontract shall further require the Subcontrac-
tor to sign an Agreement with the Union requiring the
Subcontractor to make payments to the Vacation Fund,
Health Benefit Plan, Carpenters’ Retirement Plan and
Colorado Carpenters’ Apprenticeship Trust Fund referred
to in Articles XIV, XV, XVI, and XVII of this Agreement.
Such payments shall be made only for work performed on
the particular project by the Subcontractor’s employees.
Such payments shall be made to the same trusts, in the
same amounts, and upon the same terms and conditions as
required of the Contractor under this Agreement.”
Furthermore, Article XIII, Section 4 provides, inter alia, that
“The Board of Adjustment is empowered to hear and de-
cide disputes growing out of the interpretation and ap-
plication of this agreement. . . .”
including disputes growing out of the above-cited contractual
provisions. .
7. The defendants above named admit in part and deny
C-24
in part the allegations contained in paragraph 7 of the Amend-
ed Complaint. Defendants Carpenters District Council of
Southern Colorado and Local 1340 are members of the Colo-
rado Building and Construction Trades Council. However, the
above named defendants do not have sufficient knowledge or
information with which to form a belief as to the truth or
falsity of all of the other allegations contained in paragraph 7
of the Amended Complaint, some of which constitute legal
conclusions, and therefore deny same.
8,9. The above named defendants do not have sufficient
knowledge or information with which to form a belief as to the
truth or falsity of the allegations contained in paragraphs 8 and
9 of the Amended Complaint, and therefore deny same.
10. The above named defendants deny all of the allega-
tions contained in paragraph 10 of the Amended Complaint.
By way of further answe ‘he defendants named above aver
that all of the allegations contained in paragraph 10 of the
Amended Complaint constitute legal conclusions which require
no answer.
11. The above named defendants deny all of the allega-
tions contained in paragraph 11 of the Amended Complaint.
12, 13, 14. The above named defendants do not have suf-
ficient knowledge or information with which to form the be-
lief as to the truth or falsity of the allegations contained in
paragraphs 12, 13 and 14 of the Amended Complaint, and
therefore deny the same. Defendants deny paragraph 14.
15. Defendants Carpenters District Council of Southern
Colorado and Local 1340 deny each and every other allegation
contained in plaintiffs Amended Complaint not otherwise
herein expressly admitted or denied.
C-25
First Affirmative Defense
The Amended Complaint fails to state a cause of action
upon which relief can be granted.
Second Affirmative Defense
This Court has no jurisdiction over the subject matter of
this action because it is pre-empted by the National Labor
Relations Board.
Third Affirmative Defense
This Court has no jurisdiction over the subject matter of
this action because it involves the interpretation and applica-
tion of the collective bargaining agreement previously referred
to in paragraph 5 of the within answer which is within the sole
and exclusive province of the dispute resolution machinery con-
tained therein which provisions contain the exclusive remedy
for breaches thereof.
Fourth Affirmative Defense
The plaintiff is barred from bringing this action by its
failure to exhaust the exclusive contractual remedies contained
in Article XIII of the collective bargaining agreement previous-
ly referred to in paragraph 5 of the within answer.
Fifth Affirmative Defense
The plaintiff is barred by the doctrine of laches from
bringing this action.
Sixth Affirmative Defense
C-26
The plaintiff has waived the right to make this claim and
is estopped by its conduct from doing so.
Seventh Affirmative Defense
This Court has no jurisdiction over the subject matter of
this action since the jurisdictional requirements of 29 U.S.C.
§185 are not fully satisfied herein.
Eighth Affirmative Defense
The defendants Carpenters District Council of Southern
Colorado and Local 1340, without waiving their contention
that the interpretation and application of the provisions of the
aforementioned collective bargaining agreement is within the
sole and exclusive province of the disputes resolution machin-
ery agreed to therein, assert that they have neither waived
their right, nor the right of the employees they represent, to
honor a picket line,established by another L.oor organization.
Ninth Affirmative Defense
The plaintiff has failed to join necessary or indispensable
parties under Federal Rules Civil Procedure No. 19.
Tenth Affirmative Defense
This Court lacks jurisdiction over defendant Local 1340.
WHEREFORE, the defendants Carpenters District Coun-
cil of Southern Colorado and Local 1340 pray that the Amend-
ed Complaint be dismissed in its entirety and that the defend-
ants be awarded costs and such other and further relief as to
this Court seems proper.
C-27
COUNTERCLAIM
1. Defendant Carpenters District Council of Southern
Colorado is a labor organization within the meaning of the
National Labor Relations Act, as amended, 29 U.S.C. $151, et.
seq., is an unincorporated association, and has its principal
office in Colorado Springs, Colorado.
2. Defendant Carpenters District Council of Sotuhern
Colorado represents employees in an industry effecting com-
merce and plaintiff is an employer in an industry effecting
commerce, as that term is defined in the National Labor Rela-
tions Act, as amended, 29 U.S.C. $152.
3. Plaintiff is a corporation organized under and existing
by virtue of the laws of the State of Colorado with principal
office and place of business at Fort Collins, Colorado.
4. Jurisdiction over this Counterclaim is granted the Ou
by the provisions of 29 U.S.C. $185.
5. Plaintiff and defendant Carpenters District Council of
Southern Colorado are parties to a collective bargaining agree-
ment known as “Carpenters Building Construction 1972-75
Agreement” effective May 1, 1972 to, through, and including
April 30, 1975.
6. Said collective bargaining agreement provides in Article
XIII entitled “Contractural (sic) Disputes” a mandatory dis-
pute settlement procedure culminating in a Board of Adjust-
ment hearing and the selection of an impartial chairman. Said
Board of Adjustment has final and binding authority to resolve
disputes involving the application or interpretation of the terms -
of said agreement.
C-28
7. A dispute involving the application or interpretation of
the above mentioned agreement within the meaning of Article
XIII, Section 1 of said agreement has arisen between the plain-
tiff and defendant Carpenters District Council of Southern
Colorado in that plaintiff alleges in its Amended Complaint
that said defendant has violated Article XIII, Section 5 per-
taining to strikes, work stoppages, etc. and Article IV pertain-
ing to subcontracts.
8. In accordance with Article XIII of the above men-
tioned collective bargaining agreement, plaintiff has a manda-
tory obligation at the time the above described dispute arose
to utilize the dispute settlement procedures provided for in
said article, and the plaintiff's failure to abide by the terms of
said article constitutes an express violation of said collective
bargaining agreement, thereby giving rise to the express right
in the defendant Carpenters District Council of Southern
Colorado to take appropriate economic action against the plain-
tiff.
9. By commencing the within lawsuit against defendants
Carpenters District Council of Southern Colorado and Local
1340 for breach of their contractual promises not to strike and
for violating their agreement by attempting to change the pro-
visions of Article IV entitled “Sub-contractors” of the above
mentioned collective bargaining agreement, the plaintiff has
flagrantly disregarded its mandatory obligation to abide by
the contractual dispute settlement procedures set forth in said
collective bargaining agreement, and the plaintiff violated the
express terms of Article XIII of said collective bargaining
agreement.
10. As a proximate result of plaintiff's above described
breach of the above mentioined collective bargaining agree-
C-29
ment, the defendant has suffered damages including, inter
alia, the cost of defending the within lawsuit.
WHEREFORE, defendant Carpenters District Council of
Southern Colorado prays that this Honorable Court grant the
following relief:
1. That judgment be entered in favor of the defendant
Carpenters District Council of Southern Colorado against the
plaintiff and that the defendant be awarded all costs incurred,
including resonable attorney's fees, in defending the within
lawsuit.
2. That the Court award defendant such other and further
relief as this Court may deem proper.
7. ee od from Respondent’s Pre-Trial Statement (March
, 1974
Il. JURISDICTION
Admitted in part and denied in part. Plaintiff asserts this
action arises under Section 301(a) of the Labor-Management
Relations Act, as amended, 29 U.S.C.A. §185. Defendant Car-
penters District Council of Southern Colorado admit to the
jurisdictional allegation. Defendant Local 1340 denies that
the Court has jurisdiction by virtue of said Act.
III. AMENDMENTS TO PLEADING
Plaintiff attaches hereto a Motion to Amend Complaint
pursuant to the Federal Rules of Civil Procedure, Rule 14.
_ IV. PRELIMINARY MOTIONS REMAINING TO BE
DETERMINED
C-30
Remaining to be determined is Plaintiff's Motion to
Amend Complaint.
V. GENERAL NATURE OF THE CLAIM TO THE
PARTIES
A. Plaintiff's Claim
Plaintiff is a party to a collective bargaining agreement
with Defendants Carpenters District Council of Southern Colo-
rado (hereafter called Council) and Local 1340 which agree-
ment contains promises by the Carpenters Union that its mem-
bers will not strike or picket Plaintiff during the period of that
agreement. Plaintiff claims that the agent of Defendants, the
Colorado Building and Construction Trades Council, requested
the Plaintiff to sign a different labor agreement, which, if
signed, would change some of the provisions of the Carpenter
Union labor agreement. Plaintiff further claims that when it
refused to sign that agreement, the Building Trades Council
pickete? two of its construction sites on or about March 8 and
16, 1973, and on or about April 3, 1973. When the picketing
commenced, that picketing should be construed as picketing
being done by the Carpenters Union since the Building Trades
Council is their agent and, therefore, the mere act of picketing
by the Building Trades Council is violative of the no-strike, no-
picketing promises of the Carpenter agreement.
Plaintiff further claims that when the Carpenter Union
respects any picket line, including a Building Trades Council
picket line, whether or not the picketing is being conducted
by an agent of Defendants, the Union thereby violates its
promises to Plaintiff not to strike during the course of that
collective bargaining agreement.
C-31
Plaintiff further claims that it suffered damages due to the
picketing of Defendants’ agent, the Building Trades Council,
and that it also suffered damages due to the strike conducted
by the Defendants.
C. Uncontroverted Facts
It appears to Plaintiff that almost all relevant facts are
controverted herein. It is uncontroverted that Plaintiff and
Defendant Carpenters District Council of Southern Colorado
are parties to the subject collective bargaining agreement. It
is also uncontroverted that the Colorado Building and Con-
struction Trades Council commenced picketing a Fort Collins
construction site of Plaintiff on March 8, 1973 and continued
that picket until March 16, 1973. It is also uncontroverted that
on April 3, 1973 and continuing to April 13, 1973 the Building
Trades Council resumed picketing construction sites of Plain-
tiff. It is also uncontroverted that Defendant Carpenters Dis-
trict Council of Southern Colorado and Defendant Local 1340
are members of the Colorado Building and Construction Trades
Council.
VI ISSUES OF FACT AND LAW
A. Contested Issues of Fact
The contested issues of fact are the following:
1. Is Defendant Locai 1340 a party to the subject labor
agreement?
2. When the Building Trades Council picketed in the in-
stant case, was it acting as the agent of Defendants?
C-32
3. Did Plaintiff suffer monetary damages by the picketing
of the Building Trades Council and/or by the strike of Defend-
ants and if so, how much?
4. Did Defendants or either of them induce or coerce their
members into respecting the Building Trades Council picket
line?
5. Did the members of Defendants refuse to perform ser-
vices for Plaintiff in violation of the collective bargaining
agreement?
B. Contested Issues of Law
In addition to the issues of law implicit in the foregoing
issues of fact, the outstanding issues of law are:
1. As a matter of law, does the action of the Defendant
herein constitute a breach of their no-strike, no-picket promises
to Plaintiff?
8. Excerpts from Petitioners’ Pre-Trial Statement (March 11,
1974)
2. JURISDICTION
This action arises under 29 U.S.C. §185.
3. AMENDMENTS TO PLEADINGS
The Defendants above-named have filed a Motion to
Amend Answer simultaneously herewith in which the Defend-
ants request that their Answer be amended to add the follow-
ing:
C-33
Eleventh Affirmative Defense
The Plaintiff has failed to mitigate its damages.
and to correct Paragraph 7 to read as follows:
7. The defendants above-named admit in part and
deny in part the allegations contained in Paragraph 7 of
the Amended Complaint. Defendant Local 1340 is an
affiliate of the Colorado Building and Construction Trades
Council, whereas defendant Carpenters District Council
of Southern Colorado is not. Nevertheless, the above-
named defendants do not have sufficient knowledge or
information with which to form a belief as to the truth
or falsity of all of the other allegations contained in Para-
graph 7 of the Amended Complaint, some of which con-
stitute legal conclusions, and therefore, deny same.
4. PRELIMINARY MOTIONS REMAINING TO BE DE-
TERMINED
There are no other preliminary motions to be determined
at this time. However, because discovery by both parties is
presently in progress, Defendants above-named reserve the
right to move for a summary judgment or other appropriate
motions based upon present or future discovery.
5. (A) GENERAL NATURE OF THE CLAIMS OF THE
PARTIES
b. Defendants’ Claim
The Plaintiff contends that the Defendant Carpenters’
unions have a labor agreement with the Plaintiff which con-
C-34
tains a promise not to strike or picket the Plaintiff and that
said promise was violated by the picketing of the Colorado
Building Construction Trades Council in March and April,
1973 because the Trades Council was acting as the agent of
the Carpenter Defendants at this time. In addition, the Plain-
tiff also contends that the Carpenter Defendants coerced their
members into not working for Plaintiff during this same period
and thereby directly violated the no-strike promises contained
in the collective bargaining agreement with the Plaintiff.
The Defendant Carpenter unions deny Plaintiff's allega-
ions of direct and indirect violation of the Carpenters’ collec-
tive bargaining agreement, which is known as the “Carpenters’
Building Construction 1972-75 Agreement.” It is the Defend-
ant Carpenter unions’ position that the Colorado Building
Construction Trades Council is a separate and distinct labor
organization with its own purposes and goals and that in sub-
mitting its own subcontract agreement to the Plaintiff for sig-
nature and in conducting picketing against Plaintiff in March
and April, 1973, the Colorado Building Construction Trades
Council was acting on its own initiative pursuing its own goals
and was not acting as the agent of the Carpenter Defendants
_ herein. The Defendant Carpenters District Council of South-
ern Colorado is a party to the aforementioned collective bar-
gaining agreement with the Plaintiff, but is not a member of
the Colorado Building Construction Trades Council and, there-
fore, has no agency relationship to the Trades Council. On the
other hand, Defendant Local 1340 is an affiliate of the Colo-
rado Building Construction Trades Council, but neither it nor
the Defendant Carpenters District Council of Southern Colo-
rado authorized or ratified the Trades Council picketing. Fur-
thermore, the Defendant Local 1340 is not a party to the afore-
mentioned collective bargaining agreement with the Plaintiff.
It is also the Defendant Carpenter unions’ position that
C-35
even if the alleged agency relationship were found, the alleged
picketing does not constitute a violation of the collective bar-
gaining agreement, as the no-strike provision contained in
Article XIII therein does not preclude the union from honoring
the picket line of another labor organization.
Furthermore, the Plaintiff alleges at Paragraphs 13 and
14 of its Amended Complaint that the Carpenter Defendants
have violated the aforementioned collective bargaining agree-
ment by attempting to change the provisions of Article IV,
entitled “Subcontractors,” by means of the Trades Council
picket and have violated Article XIII relating to strikes, work-
stoppages, etc., respectively. It is the Defendant Carpenter
unions’ position that these two alleged violations of the collec-
tive bargaining agreement are clearly disputes involving the
interpretation and application of said collective bargaining
agreement, and therefore, the resolution of these disputes lies
solely and exclusively within the province of the dispute reso-
lution machinery contained in Article XIII of said collective
bargaining agreemnt. Thus, this Court has no jurisdiction over
the subject matter of this action and the Plaintiff is barred from
seeking recovery in this action by its failure to exhaust the ex-
clusive and mandatory contractual remedies provided in Article
XIII of said collective bargaining agreement.
It is also the Defendant Carpenter unions’ position that
this Court lacks jurisdiction over the subject matter of this
action because it is pre-empted by the National Labor Rela-
tions Ant oe ene ee ee ee
or indi ble parties under Federal Rules i
por ote. the numerous other labor organizations
which are members of the Colorado Building Construction
Trades Councii and which are responsible for the damages the
Plaintiff allegedly sustained, that the Plaintiff has failed to
C-36
mitigate its damages, that the Plaintiff is barred by laches and
is estopped from bringing the within lawsuit, and that the
Plaintiff has failed to state a claim upon which relief can be
granted.
(B) UNCONTROVERTED FACTS
The Defendants above-named contend that the following
facts are uncontroverted:
1. Plaintiff and Defendant Carpenters District Council of
Southern Colorado are parties to the collective bargaining
agreement known as “Carpenters’ Building Construction 1972-
75 Agreement.”
2. Said collective bargaining agreement contains in Article
XIII, entitled “Contractural Disputes,” a provision relating to
strikes, working-stoppages, etc., against Plaintiff, and contains
in Article IV, entitled “Subcontractors,” a provision relating
to the Plaintiff's obligations vis-a-vis its subcontractors per-
forming carpenter work.
3. The Carpenters Building Construction Trades Council
submitted to the Plaintiff for its requested signature a labor
agreement which would require, inter alia, that the Plaintiff
contract only with union subcontractors in most, if not all,
phases of its construction work in the future.
4. The Colorado Building Construction Trades Council
picketed Plaintiff in Fort Collins, Colorado, in the Spring of
1973, whereas the Carpenter Defendants herein did not picket
the Plaintiff during all times material herein.
5. Defendant Local 1340 is not a party to the aforemen-
C-37
tioned collective bargaining agreement, whereas Carpenters
District Council of Southern Colorado is a party to said agree-
ment.
6. The Plaintiff has failed to invoke or pursue its contrac-
tual remedies provided for in Article XIII of the aforemen-
tioned collective bargaining agreement, including reducing its
dispute to writing, referring its dispute(s) to the Board of Ad-
justment or to arbitration before an Impartial Arbitrator.
6. ISSUES OF FACT AND LAW
(A) Contested Issues of Fact:
1. Does the aforementioned collective bargaining agree-
ment preclude the right of the Carpenter Defendants to honor
the picket line of another labor organization?
2. Whether the parties to the aforementioned collective
papnanges age fee to ag Samah
are ject to dispute resolution procedures provided
for in said collective bargaining agreement.
3. Whether the Plaintiff took any steps toward invoking
or pursuing the dispute resolution procedures provided under
the aforementioned collective bargaining agreement.
4. To what extent did the Carpenter Defendants cause
the damages allegedly sustained by the Plaintiff, ar: to what
extent were said damages caused by other labor organizations?
5. Whether the Building Construction Trades Council is
a separate labor organization from the Carpenter Defendants.
C-38
6. Whether the decision of the individual carpenter em-
ployees not to cross the within picket line constitutes a breach
by the Carpenter Defendants of the no-strike provision of the
within mentioned collective bargaining agreement.
(B) Contested Issues of Law:
1. Whether the Colorado Building Construction Trades
Council was the agent of the Carpenter union Defendants as
alleged in the Amended Complaint.
2. Whether the picketing of the Colorado Building Con-
struction Trades Council was authorized or ratified by the
Carpenter Defendants, and whether or not the Trades Council
acted within the scope of said authority.
3. Whether the picketing of the Colorado Building Con-
struction Trades Council constituted a violation by the Car-
penter Defendants herein of the aforementioned collective
bargaining agreement.
4. Whether the Carpenter union Defandants induced,
encouraged, or coerced their members into refusing to work
for Plaintiff, and if so, whether such conduct constitutes a
breach of the aforementioned collective bargaining agreement.
5. Whether the alleged conduct of the Carpenter Defend-
ants caused the cessation or interruption of work complained
of, and whether said Defendants are legally responsible for all
damages allegedly sustained.
6. Whether Carpenter Defendants attempted to change
Article IV, entitled “Subcontractors,” of the aforementioned
collective bargaining agreement by the action of the Colorado
C-39
Building Construction Trades Council in seekin
g its own col-
lective bargaining agreement from the Plaintiff. ee
7. Whether the contractual violations alle
Seseell die iaiehen dlitn tae endiaten ot aadw wee a
titled “Contractural Disputes,” of the aforementioned collective
bargaining agreement, and whether the pursuit of the dispute
resolution machinery provided for in Article XIII of said col-
lective bargaining agreement, including participation in an
arbitration hearing before an Impartial Chairman of the Board
of Adjustment is a prerequisite or pre-condition to the Plain-
tiff's right to sue for breach of said agreement, and whether the
Plaintiff's failure to exhaust its contractual remedies bars re-
covery herein.
8. Whether the dispute resolution machi provid
huthile SA0t ch Gis dhceaitatad waethns bangles cape.
ment is mandatory and exclusive and whether the Plaintiff's
failure to invoke said dispute resolution machinery entitles the
Defendant Carpenters District Council of Southern Colorado
to recover the damages it has sustained as a result of Plaintiff's
failure to do so.
9. Whether the exercise of free choice by an individual
carpenter einployee in regard to the decision of to cross or not
ne en eS LE Op
orementioned collective bargaining agreement, and if so,
whether such alleged breaca gives rise to a claim for damages
against the Defendant Carpenters District Council of Southern
Colorado, against Defendant Local 1340 or against both.
10. Whether the Defendant Carpenters District Council of
Southern Colorado and/or Defendant Local 1340 are respon-
sible in damages for the acts of the Colorado Building Con-
C-40
struction Trades Council which is a separate and distinct labor
organization.
11. Whether the Carpenter Defendants as well as their
individual employee members are precluded by the aforemen-
tioned collective bargaining agreement from honoring the
picket line of the Colorado Building Trades Construction
Council which is another labor organization.
12. Whether the Plaintiff has mitigated its damages.
13. Whether Plaintiff has failed to join necessary or in-
dispensable parties under the Federal Rules of Civil Procedure
No. 19.
14. Whether this Court lacks jurisdiction over the subject
matter of this action because it is preempted by the National
Labor Relations Act as it is amended.
15. Whether or not the Plaintiff has stated a claim upon
_ which relief can be granted.
9. Petitioners’ Suggestion to Dismiss Pursuant to Rule 12(h)
(3) (July 10, 1974)
COME NOW the Defendants, Carpenters District Coun-
cil of Southern Colorado and Local 1340 of the International
Brotherhood of Carpenters and Joiners of America, and move
this Honorable Court to Dismiss the above-captioned Action
on the grounds that the Court lacks jurisdiction over the sub-
ject matter because the Pleadings and the Depositions on file
show on their face that the controversy described therein is
one within the exclusive jurisdiction of an arbitrator selected
and acting pursuant to the provisions of Article XIII of the
C-41
collective bargaining agreement upon which this Action is
EE a
to Dismiss Pursuant to Rule 12(h) (3) (July 10, 1974)
PRELIMINARY STATEMENT
COME NOW the Defendants, Carpenters District Coun-
cil of Southern Colorado and Local 1340 of the International
Brotherhood of Carpenters and Joiners of America, by and
through its attorneys, the LAW OFFICES OF JOHN W.
McKENDREE, and suggest pursuant to Rule 12(h)(3) of the
Fed.R.Civ.P. that this Court is without jurisdiction over the
subject matter of the within controversy and hence should
Order dismissal of the Action. Bank v. U.S., 16 F.R.D. 310,
312-313 (S.D. Calif. 1954). See also Arcaya v. Estrada, 24
F.R.Serv. 12 h. 234, Case 1 (S.D.N.Y. 1957).
ARGUMENT
THE COURT DOES NOT HAVE SUBJECT MATTER
JURISDICTION OVER THE INSTANT DISPUTE BE-
CAUSE: (1) THE DISPUTE IS SUBSTANTATIVELY
ARBITRABLE; (2) THE FINAL AND BINDING ARBI-
TRATION PROCEDURES PROVIDED FOR IN THE
COLLECTIVE BARGAINING AGREEMENT ARE
AVAILABLE TO THE PLAINTIFF; and (3) THE PLAIN-
TIFF FAILED TO UTILIZE SUCH PROCEDURES 3E-
FORE INSTITUTION OF THE PRESENT ACTION.
In United Steelworkers v. American Mfg. Co., Inc., 363
U.S. 564 (1960), the Supreme Court expressly delimited the
role of the judiciary in suits under Section 301(a) of the Labor
Management Relations Act of 1947, as amended, 29 U-S.C.
$185(a):
C-42
... The function of the Court is very limited when the
parties have agreed to submit all questions of contract
interpretation to the arbitrator. It is then confined to
ascertaining whether the parties seeking arbitration is mak-
ing a claim which on its face is governed by the contract.
Whether the Moving Party is right or wrong is a question
of contract interpretation for the arbitrator. In these cir-
cumstances the Moving Party should not be deprived of
the arbitrator's judgment, when it was his judgment and
all that it connotes that was bargained for. (emphasis sup-
plied) 363 U.S. at 567-8
... When the judiciary undertakes to determine the merits
of the grievance under the guise of interpreting the griev-
ance procedure of collective bargaining agreements, it
usurps a function which under that regime is entrusted
thearbitration tribunal. (emphasis supplied) 363 U.S. at
569.
Although American Mfg. was a Section 301 action to compel
arbitration, the courts recognized that the Federal policy fav-
oring arbitration of disputes manifested in that case, as in the
other Steelworker Trilogy cases, United Steelworkers v. Warrior
Gulf and Navigation Co., 363 U.S. 574 (1960); United Steel-
workers v. Enterprise Wheel and Car Corp., 363 U.S. 593
(1960), imposed a general mandate to give way to the juris-
diction of the arbitrator unless it could be said with “positive
assurance” that a particular dispute was not substantatively
arbitrable. United Steelworkers v. Warrior Gulf and Naviga-
tion Co., 363 U.S. at 582-3. ,
Thus, in Operating Engineers v. Dow Chemical Co., 348
F. Supp. 1149, 1151 (S.D.Tex. 1972), the District Court found
the dispute before it to be substantively arbitrable and thus
dismissed the action for lack of jurisdiction, commenting:
C-43
... The Supreme Court has made it clear that when the
collective bargaining agreement contains an arbitration
procedure and the arbitration procedure covers the ques-
tion in dispute, a federal court has no jurisdiction under
Section 301 unless the arbitration procedure has first been
utilized. ... The court’s function is to determine if it is an
arbitrable dispute — if it is, and if the arbitration proce-
dure has not been followed, the court must dismiss for
lack of jurisdiction. (citations omitted )
See also Printing Industries of St. Louis, Inc. v. Bindery Local
55, 347 F. Supp. 339 (E.D. Mo. 1972); Royal Industrial Union
v. Royal McBee Corp., 217 F.Supp. 277 (D.Conn. 1963). Com-
pare Republic Steel Corp. v. Maddox, 379 U.S. 650 (1965)
with U.S. Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351 (1971).
Indeed, the Plaintiff Reid Burton has recognized that fail-
ure to exhaust contractual disputes’ remedies acts as a bar to
subject matter jurisdiction of the Court in the Fourth Defense
of its December 5, 1973, Reply to the Defendants’ Counter-
claim.
Instantly, there is no doubt that Plaintiff Reid Burton’s
claim is: (1) based on an alleged breach of the collective bar-
gaining agreement by the Defendants Carpenters District
Council of Southern Colorado and Local 1340; (2) that such
claim is substantatively arbitrable; and, (3) that the Plaintiff
failed to exhaust its contractual remedies before institution of
the present Action. Consequently, the Defendant Unions sug-
gest that the Court is without subject matter jurisdiction
and that the instant dispute must be dismissed.
~
In its most recent Motion to Amend Complaint, filed with
the Court on March 7, 1974, the Plaintiff stated as grourds for
he IE toes Pe ee
C-44
the addition of Paragraph 15 to its Amended Complaint the
following: ©
... That, as previously expressed in briefs to this Court,
Plaintiff is proceeding herein on two theories: (a) That a
Building Trades Council picket line, since the Building
Trades Council is an agent of Defendant, breaches the
collective bargaining agreement; and (b) That Defend-
ant, because of their no-strike pledges to the Plaintiff,
breached their collective bargaining agreement when they
refused services to the Plaintiff because of any picket line.
Although heretofore the Defendants have questioned whether
the Defendant Local 1340 was a party to the collective bar-
gaining agreement entered into by Reid Burton and the Car-
penters District Council of Southern Colorado, the Defend-
ants herein state that Local 1340 is subject to the terms and
provisions of the agreement. Consolidation Coal Co. v. United
Mine Workers, Local 5869, 362 F.Supp. 1073 (S.D.W.Va.
1973). As a consequence, both Defendant Carpenters District
Council of Southern Colorado and Defendant Local 1340
would be bound by an arbitral award issued in accordance
with the provisions of Article XIII of the collective bargaining
agreement.
11. Excerpts from Petitioners’ Amended Pre-Trial Statement
(July 23, 1974)
2. JURISDICTION
The Court has jurisdiction over the above-described De-
fendants pursuant to Section 301(a) of the Labor Management
Relations Act of 1947, as amended, 29 U.S.C. 185(a).
C-45
3. AMENDMENT TO PLEADINGS
At a prior Pre-Trial Conference, the Court permitted the
Defendants to amend their Answer by allegin Eleven
Affirmative Defense. P = .
4. PRELIMINARY MOTIONS REMAINING TO B
E DE-
The Defendants have with the filing of the within Amend-
ed Defendants’ Pre-Trial Statement, filed a Suggestion to Dis-
miss pursuant to Rule 12(h)(3) of the Fed. R. Civ. P. Con-
sequently, the Suggestion to Dismiss remains to be determined
by the Court.
5. GENERAL NATURE OF THE CLAIMS OF THE
PARTIES
(A) b. Defendants’ Claim
The Defendant Carpenter unions <ieny P'aintiff’s allega-
tions of direct and indirect violation of the Carpenters’ collec-
tive bargaining agreement, which is known as the “Carpenters”
Building Construction 1972 - 1975 Agreement.” It is the De-
fendant Carpenter unions’ position that the Colorado Building
Construction Trades Council is a separate and distinct labor
organization with its own purposes and goals and that in sub-
mitting its own subcontract agreement to the Plaintiff for sig-
nature and in conducting picketing against Plaintiff in March
and April, 1973, the Colorado Building Construction Trades
Council was acting on its own initiative pursuing its own goals
and was not acting as the agent of the Carpenter Defendants
herein. The Defendant Carpenters District Council of South-
ern Colorado is a party to the aforementioned collective bar-
,
eS ie OE
C-46
gaining agreement with the Plaintiff, but is not a member of
the Colorado Building Construction Trades Council, and,
therefore, has no agency relationship to the Trades Council.
On the other hand, Defendant Local 1340 is an affiliate of the
Colorado Building Construction Trades Council, but neither it
nor the Defendant Carpenters District Council of Southern
Colorado authorized or ratified the Trades Council picketing.
Furthermore, the Defendant Local 1340 is not a party to the
aforementioned collective bargaing agreement with the Plain-
tiff.
It is also the Defendant Carpenter unions’ position that
even if the alleged agency relationship were found, the alleged
picketing does not constitute a violation of the collective bar-
gaining agreement, as the no-strike provision contained in
Article XIII therein does not preclude the union from honor-
ing the picket line of another labor organnization. The indi-
vidual carpenters who refused to cross the picket line did so of
their own volition.
Furthermore, the Plaintiff alleges at Paragraphs 13 and
14 of its Amended Complaint that the Carpenter Defendants
have violated the aforementioned collective bargaining agree-
ment by attempting to change the provisions of Article IV,
entitled “Subcontractors,” by means of the Trades Council
picket and have violated Article XIII relating to strikes, work-
stoppages, etc., respectively. It is the Defendant Carpenter
unions’ position that these two alleged violations of the collec-
tive bargaining agreement are clearly disputes involving the
interpretation and application of said collective bargaining
agreement, and therefore, the resolution of these disputes lies
solely and exclusively within the province of the dispute re-
solution machinery contained in Article XIII of said colle .e
bargaining agreement. Thus, this Court has no jurisdiction over
C-47
the subject matter of this action and the Plaintiff is barred
from seeking recoyery in this action by its failure to exhaust
the exclusive and mandatory contractual remedies provided
in Article XIII of said collective bargaining agreement.
It is also the Defendant Carpenter unions’ position that
this Court lacks jurisdiction over the subject matter of this
action because it is pre-empted by the National Labor Rela-
tions Act, as amended, that the Plaintiff has failed to join ne-
cessary or indispensable parties under Federal Rules of Civil
Procedure No. 19—i.e., the numerous other labor organizations
which are members of the Colorado Building Construction
Trades Couficil and which are responsible for the damages the
Plaintiff allegedly sustained, that the Plaintiff has failed to
mitigate its damages, that the Plaintiff is barred by laches and
is estopped from bringing the within lawsuit, and that the
Plaintiff has failed to state a claim upon which relief can be
granted.
The Defendants have further counterclaimed for damages
suffered, including, inter alia, the cost of defending the within
lawsuit, by reason of the fact the Plaintiff commenced the
instant lawsuit in violation of its mandatory obligation to
utilize the dispute settlement procedure provided for in the
subject collective bargaining agreement. Defendants claim that
Plaintiff's failure to abide by the terms of said collective bar-
Sei tdbcdas dea dmetaaa hae
agreement rise to a right to recover damages
such breach. ¥ ie
(B) UNCONTROVERTED FACTS
The Defendants above-named contend that the following
facts are uncontroverted.
C-48
1. Plaintiff and Defendant Carpenters District Council
of Southern Colorado are parties to the collective bargaining
agreement know as “Carpenters’ Building Construction 1972 -
1975 Agreement.”
2. Said collective bargaining agreement contains in
Article XIII, entitled, “Contractual Disputes,” a provision re-
lating to strikes, workstoppages, etc., against Plaintiff, and
contains in Article IV, entitled, “Subcontractors,” a provision
relating to the Plaintiff's obligations vis-a-vis its subcontractors
performing carpenter work,
3. The Carpenters Building Construction Trades Coun-
cil submitted to the Plaintiff for its requested signature a labor
agreement which would require, inter alia, that the Plaintiff
contract only with union subcontractors in most, if not all,
phases of its construction work in the future.
4. The Colorado Building Construction Trades Council
picketed Plaintiff in Fort Collins, Colorado, in the Spring of
1973, whereas the Carpenter Defendants herein did not picket
the Plaintiff during all times material herein.
5. The Plaintiff has failed to invoke or pursue its con-
tractual remedies provided for in Article XIII of the afore-
mentioned collective bargaining agreement, including reduc-
ing its dispute to writing, referring its dispute(s) to the Board
of Adjustment or to arbitration before an Impartial Arbitrator.
6. It is uncontroverted that Defendant Local 1340 is a
member of the Colorado Building and Construction Trades
Council.
6. ISSUES OF FACT AND LAW
C-49
(A) Contested Issues of Fact:
1. Does the aforementioned collective bargaining agree-
ment preclude the right of the Carpenter Defendants to h
the picket line of another labor organization? a etm
2. Whether the parties to the aforementioned collec-
tive bargaining agreement intended that the disputes involved
herein be subject to the dispute resolution procedures provided
for in said collective bargaining agreement.
3. To what extent did the Carpenter Defendants cause
the damages allegedly sustained by the Plaintiff, and to what
extent were said damages caused by other labor organizations?
4. Whether the B: \ding Construction Trades Council
7 — labor organization from the Carpenter Defen-
ants.
5. Whether the decision of the individual carpenter em-
ployees not to cross the within picket line constitutes a breach
by the Carpenter Defendants of the no-strike provision of the
within-mentioned collective bargaining agreement.
6. To what extent have the Defendants been damaged
by Plaintiff's failure to exhaust its contractual remedies before
commencement of the instant action?
(B) Contested Issues of Law:
1, Whether the Colorado Building Construction Trades
Council was the agent of the Carpenter union Defendants as
alleged in the Amended Complaint.
C-50
2, Whether the picketing of the Colorado Building Con-
struction Trades Council was authorized or ratified by the
Carpenter Defendants, and whether or not the Trades Coun-
cil acted within the scope of said authority.
3, Whether the picketing of the Colorado Building Con-
struction Trades Council constituted a violation by the Car-
penter Defendants herein of the aforementioned collective bar-
gaining agreement.
4. Whether the Carpenter union Defendants induced,
encouraged, or coerced their members into refusing to work for
Plaintiff, and if so, whether such conduct constitutes a breach
of the aforementioned collective bargaining agreement.
5, Whether the alleged conduct of the Carpenter De-
fendants caused the cessation or interruption of work com-
plained of, and whether said Defendants are legally responsible
for all damages allegedly sustained.
6. Whether Carpenters Defendants attempted to change
Article IV, entitled, “Subcontractors,” of the aforementioned
collective bargaining agreement by the action of the Colorado
Building Construction Trades Council in seeking its own col-
lective bargaining agreement from the Plaintiff.
7. Whether the contractual violations alleged by the
Plaintiff are disputes within the meaning of Article XIII, en-
titled, “Contractual Disputes,” of the aforementioned collective
bargaining agreement, including participation in an arbitration
hearing before an Impartial Chairman of the Board of Ad-
justment is a prerequisite or pre-condition to the Plaintiff's
right to sue for breach of said agreement, and whether the
Plaintiff's failure to exhaust its contractual remedies bars re-
covery herein.
C-51
8. Whether the dispute resolution machinery provided in
Article XIII of the aforementioned collective bargaining agree-
ment is mandatory and exclusive and whether the Plaintiff's
failure to invoke said dispute machinery entitles the Defend-
ant Carpenters District Council of Southern Colorado to re-
cover the damages it has sustained as a result of Plaintiff's
failure to do so.
9. Whether the exercise of free choice by an individual
carpenter employee in regard to the decision of to cross or not
to cross the within-mentioned picket line is a breach of the
aforementioned collective bargaining agreement, and if so,
whether such alleged breach gives rise to a claim for damages
against the Defendant Carpenters District Council of Southern
Colorado and against Defendant Local 1340 or against either.
10. Whether the Defendant Carpenters District Council
of Southern Colorado and/or Defendant Local 1340 are re-
sponsible in damages for the acts of the Colorado Building
Construction Trades Council which is a separate and distinct
labor organization.
11. Whether the Carpenters Defendants as well as their
individual employee members are precluded by the aforemen-
tioned collective bargaining agreement from honoring the
picket line of the Colorado Building Trades Construction
Council which is another labor organization,
12. Whether the Plaintiff has mitigated its damages.
13. Whether the Plaintiff has failed to join necessary or
indispensable parties under the Federal Rules of Civil Pro-
cedure No. 19.
C-52
14. Whether this Court lacks jurisdiction over the subject
matter of this action because it is pre-empted by the National
Labor Relations Act as it is amended.
15. Whether or not the Plaintiff has stated a claim upon
which relief can be granted.
12. Excerpts from Respondent's Pre-Trial Statement (July 23,
1974)
II. JURISDICTION
Admitted in part and denied in part. Plaintiff asserts this
action arises under Section 301(a) of the Labor Management
Relations Act, as amended, 29 US.C.A. §185. Defendant Car-
penters District Council of Southern Colorado admit to the
jurisdictional allegation. Defendant Local 1340 denies that
the Court has juridiction by virtue of said Act.
Ill. AMENDMENTS TO PLEADING
Subsequent to the filing of the Complaint and Answer
Plaintiff moved to amend the Amended Complaint on
peer of clarification, and Defendant also moved to amend
the Answer by alleging an Eleventh Affirmative Defense. At
a prior pre-trial conference, the Court permitted both amend-
ments and it was agreed that the allegations contained in each
of the amendments would be presumed denied by the oppos-
ing party.
IV. PRELIMINARY MOTIONS REMAINING TO BE
DETERMINED
None
C-53
V. GENERAL NATURE OF THE CLAIM OF THE
PARTIES
A. Plaintiff's Claim
Plaintiff is a party to a collective bargaining agreement
with Defendants Carpenters District Council of Southern Colo-
rado (hereafter called Council) and Local 1340 which agree-
ment contains promises by the Carpenters Union that its mem-
bers will not strike or picket Plaintiff during the period of that
agreement. Plaintiff claims that an agent of Defendants, the
Colorado Building and Construction T
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