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Catalytic Inc. v. Monmouth & Ocean County Building Trades Council

filed as amended october 29 1987.: September 23, 1987.

CATALYTIC, INC.
v.
MONMOUTH & OCEAN COUNTY BUILDING TRADES COUNCIL, ASBESTOS WORKERS LOCAL 14, PAT EIDING, BOILERMAKERS LOCAL 28, DAN KEARNEY, BRICKLAYERS & CEMENT MASONS LOCAL 8, TOM FARRELL, CARPENTERS & MILLWRIGHTS LOCAL 2018, FRANK KIRAJACICH, ELECTRICAL WORKERS LOCAL 400, JIM GRATTON, IRONWORKERS LOCAL 350, TOM KEPNER, LABORERS LOCAL 415, WILLIAM COLEMAN, PAINTERS LOCAL 694, ROBERT NEWMAN, PIPEFITTERS LOCAL 9, TOM SPERLING, SHEETMETAL WORKERS LOCAL 27, ROBERT DEBARTOLLO, TEAMSTERS LOCAL 469, FRED POTTER, JR., OPERATING ENGINEERS LOCAL 825, PAT CAMPBELL, ALL OFFICERS, AGENTS, SERVANTS, MEMBERS OR EMPLOYEES OF UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY, INDIVIDUALLY AND COLLECTIVELY, ALL OTHER PERSONS ACTING IN CONCERT WITH DEFENDANTS, INDIVIDUALLY OR COLLECTIVELY OR OTHERWISE PARTICIPATING IN THEIR AID LOCAL 825, INTERNATIONAL UNION OF OPERATING ENGINEERS AND PATRICK CAMPBELL, BUSINESS MANAGER, LOCAL 825 INTERNATIONAL UNION OF OPERATING ENGINEERS, APPELLANTS



Appeal from the United States District Court for the District of New Jersey, D.C. Civil Action No. 86-2326.

Gibbons, Chief Judge, Weis and Aldisert, Circuit Judges.

Author: Weis

Opinion OF THE COURT

WEIS, Circuit Judge.

The district court enjoined a number of unions to cease a work stoppage precipitated by Local 825's activities at the plant gates. Among the craft unions only Local 825 appeals, asserting that none of those who refused to work were its members and, consequently, the union cold not be enjoined. We will affirm because Local 825 was party to a master agreement and in the alternative, because the injunction as directed to third parties is effective. We also conclude that in the circumstances Local 825's leafletting was not protected activity, but was a signal designed to cause the work stoppage in violation of collective bargaining agreements.

This litigation stems from a jurisdictional dispute between unions and employers at the Oyster Creek Nuclear Generating Plant in Forked River, New Jersey. GPU Nuclear, Inc. operates the plant, which is owned by Jersey Central Power and Light Company. Catalytic, Inc., a general contractor, has provided engineering maintenance service to GPU.

To fulfill the terms of the contract with GPU, Catalytic employees, as needed, members of various craft unions, including Local 825 of the Operating Engineers. Catalytic had negotiated with the Building Trades Council a collective bargaining agreement governed by the terms of the "General Presidents' Project Maintenance Agreement by Contract." This document recited that the parties "recognized there is an essential difference in the conditions required to perform this type of work . . . In order to insure relative equity and uniform interpretation and application, the Unions wish to establish and administer said Collective Agreement in concert each with the other, and all with the Contractor."

The President's Agreement stated that "the Contractor and the Unions agree that, due to the particular work covered by the Agreement, there shall be no lock outs or strikes during the life of this Agreement, and provisions must be made to achieve this end." The agreement acknowledged that GPU may limit the scope of work for assignment. It provided that the "Unions and the Contractor understand that the owner may choose to perform . . . any part or parts of the work necessary on his project with due consideration given to achieving the highest maintenance standards and harmonious working conditions." The contract further endorsed "the concept that jurisdictional disputes cannot . . . interfere with the efficient and continuous operations required in the successful application of the intent of this agreement."

In addition to non-strike, non-lock out and non-work stoppage clauses, the agreement also included a grievance procedure that established arbitration as a forum of last resort. An addendum to the contract provided that the "Owner's specialty shops, such as . . . crane services . . . will support building trades crafts by providing the required support services." The presidents of the craft unions, including the Operating Engineers, signed the contract and representatives of the various locals approved the addendum.

At the time this dispute arose, employees of the owner, Jersey Central, were manning both mobile and stationary cranes at the job site. When Local 825 observed this practice, it insisted that its members be assigned to operate the mobile cranes. On May 20 and 21, 1986, as a result of picketing by Local 825 over this issue, the other craft union members on the site engaged in a work stoppage.

On June 13, 1986, Local 825 member appeared at the plant's entrances and handed out leaflets that protested assignment of mobile crane work to "non-building trades" employees. The body of the handbill charged Jersey Central and GPU Nuclear with being "unfair" to Local 825. In much smaller type at the bottom, the flyer stated that "our dispute is only with GPU Nuclear and [Jersey Central]. We do not seek to enmesh any other employer in this dispute, and we do not seek to induce or encourage an individual employed by any person engaged in commerce to cease doing business with any other employer." At the time of the picketing and handbilling and for some time before those incidents, no member of Local 825 actually worked at the Oyster Creek plant.

On application of Catalytic, the district court granted a temporary restraining order. After a hearing, the court issued a permanent injunction directing the parties to arbitrate the dispute over the provision of the collective bargaining addendum permitting support services by the owner. The unions were enjoined from ordering their members not to work or from taking any action that would hinder Catalytic's employees in performing their duties. Local 825 and the other craft unions were prohibited from "picketing, handbilling at the job site, and/or otherwise inducing or permitting or in any other manner interfering with persons attempting to enter or leave the Oyster Creek Nuclear Generating Station."

The district court made the following findings of fact: (1) Catalytic and defendant unions (including Local 825) were parties to a collective bargaining agreement; (2) the agreement prohibited strikes and picketing; (3) defendant unions other than Local 825 engaged in a work stoppage precipitated by Local 825's picketing and leafletting; (4) the dispute was over working conditions and terms, and was subject to the grievance-arbitration procedure set out in the collective bargaining agreement.

Only Local 825 has appealed. It contends that no collective bargaining agreement was in effect in May and June 1986; moreover, even if there had been such a contract, the district court abused its discretion in granting an injunction because Local 825 did not join in the strike or work stoppage. Finally, the union asserts that the ...


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