# Petition — Carpenters District Council v. Reid Burton Construction, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0372%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 429 U.S. 907 ## Text Supreme Court, ta 5 | FiliLED AUG 2 we "AnAY ID MeoK a7} ~ 45.4 Iu the 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 t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0372%3A1. Public record. Not legal advice.