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INTERNATIONAL UNION OF OPERATING ENGRS.

October 23, 1951

INTERNATIONAL UNION OF OPERATING ENGINEER, LOCALS NO. 542, 542-A, 542-B et al.
v.
WILLIAM D. BAKER CO. et al.



The opinion of the court was delivered by: CLARY

This is an action for a preliminary injunction and other relief. The parties are the International Union of Operating Engineers, Locals No. 542, 542-A, 542-B, the individual members thereof, and Roy J. Underwood, individually and as president and business manager of said local unions, hereinafter referred to as 'Union', plaintiffs, General Building Contractors Association, Pennsylvania Excavators Association, and The Contractors Association of Philadelphia, individually and as agents and representatives of their respective members, individuals and firms engaged in the construction industry in and around the City of Philadelphia, hereinafter referred to as 'Contractors', defendants. The action arises out of a certain collective bargaining agreement entered into between the Union and the Contractors.

In order to make clear the issues before me, it is necessary to advert to some facts and circumstances as they appear from the pleadings and testimony at the hearing on the petition for preliminary injunction.

 On October 7, 1949, a collective bargaining agreement was entered into between the Union and the Contractors, effective as of May 1, 1949, for the year May 1, 1949 to April 30, 1950. On or about April 14, 1950, negotiations were had between Harry R. Halloran, for the Contractors, and Robert G. Kelly, Esquire, for the Union, to extend the terms of the 1949 agreement for a further period of time conditioned upon the setting up of a welfare plan. The Union contends that the extension of the collective bargaining agreement was for a period of one year, until April 30, 1951, and the Contractors contend that the extension was for a period of two years, expiring April 30, 1952. Thereafter, on August 17, 1950, the declaration of trust in connection with the welfare plan was executed. It provided for the administration of the trust by six trustees, three to be named by the Union and three to be named by the Contractors. On the day previous, August 16, 1950, a written addendum to the 1949 collective bargaining agreement was executed by Halloran, on behalf of the Contractors, and Kelly, purportedly on behalf of the Union. That agreement was dated April 14, 1950, and purported to extend the terms of the 1949 collective bargaining agreement for a period of two years, until April 30, 1952.

 Thereafter, on the 11th day of October, 1950, Roy J. Underwood, president and business manager of the three local unions wrote to Harry Halloran, the negotiator for the Contractors, repudiating the addendum dated April 14, 1950, and disavowing the authority of Kelly to enter into such a contract on behalf of the unions.

 On or about the 21st day of February, 1951, Roy J. Underwood, on behalf of the Union, notified the Contractors that the 1949 agreement, as extended, would terminate on April 30, 1951, and advised them that he was prepared to negotiate terms and conditions of a new agreement to become effective May 1, 1951. The Contractors did not reply. When it became apparent on or about the 27th day of April 1951 that the Union would not retreat from its position that the contract terminated on April 30, 1951, and when it became apparent that the Union would call a strike, the Contractors instituted an action in the Court of Common Pleas No. 5 of Philadelphia County, as of March Term 1951, No. 4413, setting forth the 1949 contract and the addendum dated April 14, 1950, and praying for an injunction to restrain the unions and their membership from engaging in any work stoppage or strikes and to require the unions to furnish all employees as might be required by the defendant Contractors. After hearing, that court entered a preliminary injunction as prayed for by the Contractors. The order was predicated upon a finding by the Court of Common Pleas that there existed a bona fide collective bargaining agreement between the parties which included a covenant not to strike and which agreement extended to April 30, 1952. The injunction restrained the plaintiffs herein from violating the terms of the said collective bargaining agreement found by that Court to be validly existing to April 30, 1952.

 The complaint in the action before me avers further that because of the disagreement over the validity of the addendum, the trustees of the welfare fund representing management had failed to function to put into existence the benefits provided for in the welfare agreement in that they had neither purchased a group policy of insurance, as provided in the agreement, nor paid valid claims out of the principal funds paid into the welfare fund. Further, it is alleged that the Contractors had not furnished sufficient information to the administrator of the welfare fund to enable him to determine who were or who were not in default and that the action of the management trustees had resulted in a deprivation to the members of the union of benefits granted them under the welfare agreement.

 As bases for their right of action in this court, the plaintiffs herein contended:

 1. That the Court of Common Pleas did not have jurisdiction to entertain the bill and therefore all orders of the court are illegal and constitute an unlawful encroachment on the jurisdiction of the federal courts.

 2. That the several orders of the Court of Common Pleas are in violation of plaintiffs' legal right to strike and are in direct violation of the Norris-La Guardia Act, 29 U.S.C.A. § 101 et seq.

 3. That although an appeal had been taken to the Supreme Court of Pennsylvania that court had refused application for a supersedeas and a special listing and that by the time the appeal is disposed of the disputed contract period will have expired and the question rendered moot to the great prejudice of the plaintiffs.

 Plaintiffs averring themselves to be in need of equitable relief prayed this court:

 (b) That the defendant contractors be adjudged guilty of unfair labor practice in failing and refusing to bargain collectively with the plaintiff unions and that this court forthwith require the defendant contractors to bargain collectively in good faith with the plaintiff unions.

 (c) That the contractors be required and directed to make full and complete compliance with the ...


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