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GENERAL BLDG. CONTRS. ASSN., INC. v. LOCAL UNION 5

January 30, 1974

The GENERAL BUILDING CONTRACTORS ASSOCIATION, INC., acting for and on Behalf of Turner Construction Company, Plaintiff,
v.
LOCAL UNIONS 542, 542-A, 542-B, INTERNATIONAL UNION OF OPERATING ENGINEERS and Robert Walsh, Business Manager, Local Union 542, International Union of Operating Engineers, Defendants


Broderick, District Judge.


The opinion of the court was delivered by: BRODERICK

BRODERICK, District Judge.

This matter comes before the Court on the motion of the plaintiff, General Building Contractors Association, Inc., to enjoin the defendants, Local Union 542, 542-A, 542-B, International Union of Operating Engineers and Robert Walsh, Local 542's business manager, from proceeding with a strike or work stoppage at job sites of the Turner Construction Company and to require the defendants to submit the dispute upon which the strike or work stoppage is based to the grievance and arbitration procedure in accordance with the collective bargaining agreement.

 The complaint in this case was filed on January 18, 1974, and a hearing was scheduled and held on January 21, 1974. The parties agreed that no strike or work stoppage would take place pending this Court's determination of the matter.

 The plaintiff, General Building Contractors Association, Inc. (Association), is a multi-employer association which acts, inter alia, as the duly authorized collective bargaining agent for the Turner Construction Company (Turner). Turner is the general contractor for the construction of a twenty-two story office building for the Oliver Tyrone Corporation at 1234 Market Street in Philadelphia, Pennsylvania, as well as the general contractor for six other projects with a total contract price in excess of $100 million. Operating Engineers from the defendant union are employed at four of these jobs, and a work stoppage would cost Turner approximately $25,000 per week. The defendant, Local 542, 542-A, 542-B, International Union of Operating Engineers (Union) is an unincorporated labor association which is the recognized collective bargaining agent for the Operating Engineers in the eastern half of Pennsylvania and the State of Delaware.

 The Association and the Union are parties to a collective bargaining agreement (Agreement) which governs the wages, hours and working conditions of the Operating Engineers at the job sites in question. The parties have stipulated that the Agreement is valid and binding in this litigation.

 Article VI of the Agreement provides, in pertinent part:

 
Section 3 -- Strikes and Lockouts -- It is agreed that there shall be no strikes, work stoppages, or slowdowns of any character whatsoever by the Union or its members and that there shall be no lockouts by the Employer during the term of this agreement, except as hereinabove defined in Article VII, Sec. 4 (Penalty Clause). If an employer is in clear violation of the contract and his violation is not corrected on notice from the Business Manager, the Business Manager may call a strike against the violating employer without observing the grievance and arbitration procedure. (Emphasis added).

 The Union contends that it has a right to strike on the ground that the present dispute arises from a "clear violation" by Turner of the provisions of Section 24 of Article IV of the Agreement, which provides:

 
Section 24 -- Outside Power -- When the employer obtains power from a permanent or temporary plant, i.e., steam, compressed air, hydraulic or other power, for the operating of any machine or automatic tools, or for the purpose of furnishing temporary heat for heating material or to buildings under course of construction or used in the construction of new buildings, additions, alterations, or repairs thereto; employees covered hereunder shall man and operate such permanent or temporary plant from which source of power is supplied. In the event that the Employer is unable to arrange this, engineers shall man all valves or other outlets of such source of power as is used by the employer.

 Prior to January 17, 1974 Turner employed three Operating Engineers "around-the-clock" as "stand-by" on the primary steam valve of the heat system at the 1234 Market Street project. Turner also employed one Operating Engineer to man the material hoist which transports materials from the ground to the upper level of the project.

 On January 15, 1974 Turner received a letter from Richard M. Wendlek, the manager of construction for the Oliver Tyrone Corporation, which stated:

 
Please be advised that we have inspected and found the mechanical systems satisfactory for acceptance and operation by ownership.

 The control and operation of the heating system and other mechanical systems were then turned over to the owners of the building, and the three Operating Engineers were laid off as of midnight on January 16, 1974. The parties have stipulated that the mechanical systems at 1234 Market are complete. It was testified that it will take from three months to ...


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