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

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yOSEPH F. SPANIOL, JR.

. SeeRK

SUPREME COURT OF THE UNITED STATES

No. 89-1208

OCTOBER TERM 1989

LOCAL 530 OF OPERATIVE PLASTERERS AND

CEMENT MASONS INTERNATIONAL ASSOCIATION,

Petitioner,

V o

DRYWALL TAPERS AND POINTERS OF GREATER

NEW YORK, LOCAL 1974 OF I.B.P.A.T., AFL-

CIO, on its own behalf and on behalf of

all persons, etc.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

BURTON H. HALL

Attorney for Respondents

401 Broadway

New York, N.Y. 10013

(212) 431-9114

Of Counsel:

Wendy E. Sloan

Hall & Sloan

QUESTION PRESENTED

1. Where:

(i) a district court has,

after a full evidentiary hearing,

enjoined a labor union from causing or

permitting its members to perform any

work at, certain specified and clearly

identified jobsites; and

(ii) the labor union neverthe-

less has asserted jurisdiction over those

jobsites and has knowingly and willfully

caused and permitted its members to per-

form work on them, and has taken no steps

whatever to prevent its members from

performing work on them despite its

knowledge that they were doing so; and

(iii) the district court has,

on motion duly served upon the labor

union and after a further evidentiary

hearing, made specific and detailed find-

ings of fact, finding that the labor

union willfully violated the injunctive

order by causing and permitting its men-

bers to perform work on the specified

jobsites; and

(iv) after such finding, the

district court has held a further eviden-

tiary hearing and, after such hearing,

has made findings and awarded compensa-

tory damages to certain of the claimants

in their proven damage amounts; and

(v) the court of appeals has, on

review, approved the district court’s

findings and damage awards;

is it error for the court of appeals to

affirm the district court’s judgment of

contempt?

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TABLE OF CONTENTS

Opinion below

Statement of the Case

Reasons for Denying the Writ

I. The injunctive orders were

clear and Local 530 fully

understood their meaning

II. The injunctive orders did

not interfere or require

Local 530 to interfere with

the rights of Local 530’s

members to join or not join

a union

III. Local 530 willfully vio-

lated the injunctive orders

Conclusion

TABLE OF AUTHORITIES

Cases

Goodman v. Lukens Steel Co.,

482 U.S. 656 (1987)

Graver Tank and Mfg. Co. v.

Linde Air Prods. Co., 336

U.S. 271 (1949)

-_ ics

oye ee

nia ae a se

5 bil, dy

aan

McComb v. Jacksonville Paper

Co., 336 U.S. 187 (1948)

McLaughlin v. Richland Shoe

Company, 486 U.S. ___, 108

S.Ct. 1677, 100 L.EG.2da 115,

(1988)

NLRB v. Allis-Chalmers Mfg.

Co., 388 U.S. 175 (1967)

NLRB v. Radio and Television

Broadcast Engineers Union,

Local 212, 364 U.S. 573 (1961)

Pattern Makers’ League v. NLRB,

473 U.S. 95 (1985)

Regal Knitwear Co. v. NLRB,

324 U.S. 9 (1944)

Rogers v. Lodge, 458 U.S. 613

(1982)

Scofield v. NLRB, 394 U.S. 423

(1969)

United States v. Doe, 465 U.S.

605 (1984)

Statute

§ 8(a) (2) and (5) of the National

Labor Relations Act, as amended,

29 U.S.C. §§ 158(a)(2) and (3)

12,

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1989

No. 89~1208

LOCAL 530 OF OPERATIVE PLASTERERS AND

CEMENT MASONS INTERNATIONAL ASSOCIATION,

Petitioner,

Vv.

DRYWALL TAPERS AND POINTERS OF GREATER

NEW YORK, LOCAL 1974 OF I.B.P.A.T., AFL-

CIO, on its own behalf and on behalf of

all persons, etc.,

Respondents.

BRIEF FOR RESPONDENT IN OPPOSITION

Opinion Below

The Opinion of the Court- of Appeals

for the Second Circuit is reported at 889

F.2d 389.

Statement of the Case

There exist in the construction

industry both a national Plan for the

Settlement of Jurisdictional Disputes and

local plans in several cities. One of

the latter plans is known as the New York

Plan and is applicable to New York City.

Both plans are contracts between labor

organizations and employers.

The New York Plan is established by,

and administered jointly by, the Building

Trades Employers’ Association of New York

City ("BTEA") and the Building and Con-

struction Trades Council of Greater New

York ("BCTC"), the former an employer

group, the latter a union group. Under

the New York Plan, BTEA arbitrates any

jurisdictional dispute as to which there

has not been a previous award; its award

governs assignment of all work of the

kind in question on all future jobs; and

BCTC’s duty is to enforce the award.

In March 1978 the national plan’s

Hearing Panel rendered a decision estab-

lishing what type of drywall taping work

would belong to the Painters’ Union (and

thus to Local 1974) and what kind to the

Plasterers’ Union (of which Local 530 is

an affiliate).

In 1980, BTEA arbitrated a claim by

Local 1974 that at a particular jobsite

in New York Local 530 was performing work

that belonged to Local 1974 pursuant to

the Hearing Panel’s decision. After an

arbitration hearing, BTEA’s executive

board rendered an award in favor of Local

1974, finding that the work belonged to

it, against Local 530. Local 530 had an

opportunity to appeal to the organs of

the national plan but decided not to do

so. The BTEA’s decision of June 24, 1980

therefore is final and binding.

The New York Plan provides that each

arbitration award shall govern assignment

—

of all work of the kind in question on

future jobs within the City of New York.

Local 1974 instituted this action in

1981, alleging that Local 530 was viola-

ting the BTEA’s award and that BCTC had

failed to enforce the award. In 1983,

after continued failure to perform its

enforcement function, BCTC was joined as

a defendant along with Local 530.

After BCTC had been joined as defen-

dant, BCTC held a hearing upon a request

by Local 1974 for enforcement of the

BTEA’s award with regard to 31 jobsites

at which, Local 1974 alleged, Local 530

was causing its members to perform work

that was of the kind in question in the

BTEA award. After the hearing, BCTC

upheld Local 1974 and ordered Local 530

to remove its members from the jobsites.

Local 530 failed to comply with the

BCTC’s enforcement order and BCTC failed

to enforce it. Local 1974 moved in the

district court for an order enjoining

Local 530 from permitting its members to

perform work on the 31 jobsites.

The district court issued a prelimi-

nary injunction, enjoining Local 530:

...- from asserting jurisdiction

over, and from causing or permitting

members of such labor union to per-

form work at, any of the following

jobsites within the City of New

York: ... [jobsites listed].

The court then set the issue of

those 31 jobsites, and one other, for

trial, held at the end of January i984.

Following the five-day trial, the court

issued an Opinion and permanent injunc-

tive Order, identical in substance to the

preliminary injunction, in regard to the

32 jobsites.1 -

Immediately upon issuance of the

preliminary injunction, Local 530 moved

1 The injunctive orders therefore

bear no resemblance whatever to those

described in the second and fourth "Ques-

tions Presented," as formulated by Local

530.

OE a

for a stay of the preliminary injunctive

order. In support of its motion, Local

530 submitted an affidavit of its coun-

sel, describing the order as "enjoining

Local 530 and its members from performing

any work on thirty-one specified job

sites within the City of New York," add-

ing that as a result of the injunction

the Local 530 members working ont the

jobsites "will be out of work" and fur-

ther stating that under the preliminary

injunction

Local 530 members are enjoined

from performing any work at the

thirty-one affected jobs.

(Emphasis in original).

Upon the district court’s denial of

its motion, Local 530 moved in the Court

of Appeals for a stay, again with an

affidavit of its counsel saying that as a

result of the order Local 530’s members

"will be out of work" and ""will be en-

————————————————

joined from performing any work at the

thirty-one affected jobs."

Moscatiello, Local 530’s President

and Business Agent, subsequently testi-

fied that he understood the injunctive

orders in those terms: that all Local

530 members would have to stop work on

the jobsites.

Local 530 appealed from the perma-

nent injunctive order on February 9,

1984. Without a published opinion, the

Court of Appeals unanimously affirmed the

permanent injunction on April 13, 1984.

No petition for certiorari was filed.

Moscatiello knew or soon learned

that Local 530 members were continuing to

work on the jobsites. Moreover, two of

Local 530’s executive board members, and

one of its Trustees, were among those

continuing to do so. However, aside from

a pro forma letter to the membership, he

sierra ten attaite een

did nothing to stop them from working on

the jobsites.

Local 1974 moved repeatedly to have

Local 530 adjudged in contempt. Its

first motion was stymied by Local 530’s

counsel, who falsely represented to the

court that the men working on the job-

sites had resigned membership in Local

530; see: 17a. After further discovery,

however, Local 1974 brought a second

motion.

| An evidentiary hearing was held

before Hon. John L. Caden, United States

Magistrate.

After submission of memoranda by

counsel, the Magistrate issued a Report

and Recommendation ("R&R"), in which he

made detailed findings, establishing that

Local 530 had violated the injunctive

orders. And he found that the violation

was willful. Part of his finding was

that the lack of effective action by

———

Local 530 “was due to Local 530’s willful

avoidance of an order that it found

distasteful.”

The Magistrate therefore recommended

that Local 530, Moscatiello, Local 530’s

counsel, and certain employers be adjud-

ged in contempt. Each of the contemnors

submitted Objections.

On its de novo review, the district

court, Hon. Eugene H. Nickerson, Judge,

modified the R&R. With regard to Local

530, his findings were substantially

identical to those of Magistrate Caden

findings 35a-36a, 60a-6la. Judge Nicker-

son also made additional findings in

response to Local 530’s Objections; 6la-

76a.* His Opinion and Order adopted R&R

as modified; lila.

Judge Nickerson’s Opinion referred

the matter to Magistrate Caden for

assessment of damages; 110a. In 1987-

1988, Magistrate Caden conducted a full

evidentiary hearing on claims for

damages. Subsequently, Magistrate Caden

submitted a new R&R, assessing damages

suffered by Local 1974’s members by

reason of Local 530’s contempt.’ It was

2 Thus Local 530 is mistaken in

suggesting, in its formulation of the

third of the "Questions Presented," that

"there were no findings in the district

court." Local 530 is likewise mistaken

in suggesting, in the same Question, that

there was no briefing or argument in the

court of appeals as to the the contuma-

cious conduct. There was such briefing

and argument.

3 Contrary to the first "Question

Presented," as formulated by Local 530,

no “penalties” were imposed. However,

damages were awarded to those Local 1974

members who proved that they had lost

earnings because of the contempt.

Also contrary to Local 530’s formu-

lation of that "Question," the injunctive

modified by Judge Nickerson, and adopted

as modified.

Local 530, its counsel, and the

employers appealed; the Court of Appeals

affirmed as to Local 530’s contempt but -

reversed as to the others on the ground

of inadequate notice.

REASONS FOR DENYING THE WRIT

The injunctive orders were clear

and Local 530 fully understood

their meaning

The injunctive orders clearly and

unambiguously enjoined Local 530, its

officers and persons in concert with it,

from “causing or permitting members of

such labor union to perform work at" any

of the 32 jobsites.

orders provided Local 530 clear notice of

the conduct prohibited.

The orders thus left no doubt in the

minds of those to whom they were addres-

sed. In the affidavit of its counsel, in

support ofits motion for a stay, Local

530 itself described the preliminary

injunctive order as "enjoining Local 530

and its members from performing any work

on thirty-one specified job sites...."

Local 530 thus understood that to be

the meaning of the injunctive orders when

it appealed from their issuance in 1984.

The Court of Appeals affirmed their issu-

ance but Local 530 did not petition this

Court for certiorari, nor did it move for

rehearing on the issue of their breadth

or their meaning. It can hardly complain

of them now; See: McComb v. Jackson-

ville Paper Co., 336 U.S. 187, 192, 69

S.Ct. 497, 93 L.Ed. 599, 604 (1948);

Regal Knitwear Co. v. NLRB, 324 U.S. 9,

15, 65 S.Ct. 478, 482, 89 L.Ed. 661, 667

(1944).

iil

But Local 530 consciously and will-

fully violated the orders; 110a. And see:

Point III, infra.

Even if Local 530’s present asser-

tions be credited, it willfully chose to

"make [its] own determination of what the

decree meant" and in so doing "knew [that

it] acted at [its] peril." McComb, supra,

336 U.S. at 192.

Il.

The injunctive orders did not

interfere or require Local 530

to interfere with the rights

of Local 530’s members

to join or not join a union

The injunctive orders enjoined Local

530 from asserting jurisdiction over, and

from causing or permitting its members to

perform work at, certain jobsites. More

simply put, they required Local 530 to

pull its members off the jobsites.

The orders did not order anyone, or

require anyone, or direct Local 530 to

compel anyone to resign membership in

Local 530; nor did they require Local

530 to interfere with its members’ rights

to join or not join any other union.

The orders thus did not in any way

infringe or prejudice any of the statu-

tory or constitutional rights of Local.

530’s members. Cf. NLRB v. Radio and

Television Broadcast Engineers Union,

Loca) 212, 364 U.8. $73, 584, i182 8.Ct.

330, 5 L.Ed.2d 302, 309 (1961) (NLRB

determination, awarding work to one union

as opposed to another, does not violate

non-discrimination requirements of

§§ 8(a) (2) and (3) of the National Labor

Relations Act, as amended, 29 U.S.C.

§§ 158(a)(2) and (3)).

Iti.

Local 530 willfully violated

the injunctive orders

Moscatiello and Local 530 knew or

soon learned that Local 530’s members

were working on the jobsites. Moreover,

at least three officers of Local 530 --

two executive board members and a Trustee

-- were among those working on the job-

sites. They continued to work on those

jobsites until the jobs ended. But as

Moscatiello testified, he "didn’t do any-

thing about it." Nor did Local 530 do

anything about it.

There was much that Local 530 could

have done, and was under an obligation to

do, to see to it that the injunctive or-

ders were obeyed. For example, it could

have disciplined, or threatened with dis-

cipline, members who violated it. Cf.

NLRB v. Allis-Chalmers Mfg. Co., 388 U.S.

——————

175, 196, 87 S.Ct. 2001, 18 L.Ed.2d 1123

(1967); Scofield v. NLRB, 394 U.S. 423,

89 S.Ct. 1154, 22 L.Ed.2d 385 (1969).

Nor would such discipline have violated

any law or public policy; cf. Pattern

Makers’ League v. NLRB, 473 U.S. 95, 102,

105 S.Ct. 3064, 87 L.Ed.2d 68, 74 (1985).

But Local 530 did nothing -- except

send a pro forma letter advising members

of the injunctions.

Magistrate Caden, after a lengthy

evidentiary hearing, found that the lack

of effective action by Local 530 "was due

to Local 530’s willful avoidance of an

order that it found distasteful."

The Magistrate thus found that Local

530 had violated the injunctive orders.

His finding that the violation was "will-

ful" is in accord with the ordinary mean-

ing of that term, see: McLaughlin v.

Richland Shoe Company, 486 U.S. , ,

106 S.Ct. 1677, 1681, 100 L.Ed.2d 115,

123 (1988).

Judge Nickerson, reviewing Magis-

trate Caden’s Report de novo, approved

that finding; 35a-38a, 61a, 110a. On

Local 530’s motion for rehearing, Judge

Nickerson adhered to that finding.

The Court of Appeals, on Local 530’s

appeal, approved that finding; 13a-17a,

21a. And it adhered to it on Local 530’s

motion for rehearing; 27a.

In short, two courts have, with much

deliberation, made or approved factual

findings of Local 530’s violation of the

injunctive orders. Those findings

should not be reviewed anew on certio-

rari. cf. Goodman v. Lukens Steel Co.,

482 U.S. 656, 665, 107 S.Ct. 2617, 2623,

96 L.Ed.2d 572, 584 (1987); United

States v. Doe, 465 U.S. 605, 613-614, 104

S.Ct. 1237, 1242-1243, 79 L.Ed.2d 552

(1984); Rogers v. Lodge, 458 U.S. 613,

623, 102 S.Ct. 3272, 73 L.Ed.2d 1012,

1021 (1982); Graver Tank & Mfg. Co. v.

Linde Air Prods. Co., 336 U.S. 271, 275,

69 S.Ct. 535, 538, 93 L.ed. 672, 676-677

(1949).

Conclusion

For the foregoing reasons, the peti-

tion for certiorari should be denied.

Respectfully submitted,

be oe

ORTON H.’ HALL .

Attorney for Respondents

401 Broadway

New York, N.Y. 10013

(212) 431-9114

HALL & SLOAN

WENDY E. SLOAN

Of Counsel

Dated: New York N.Y.

February 14, 1990

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