The opinion of the court was delivered by: Campbell, Chief Judge.
The emergency motion of plaintiff for preliminary injunction
is brought to enjoin alleged violations by defendants and
other plastering contractors of Section 302 of the Labor
Management Relations Act of 1947, 29 United States Code
Annotated, § 186.
Originally, when this cause was before me, (See, please, my
memorandum entitled "Weir v. Chicago Plastering Institute,
Inc., D.C., 177 F. Supp. 688) I held that the jurisdiction of
Section 302(e) does not extend to an employer action for
injunction, accounting and receivership, as in the case of
Employing Plasterers' Association, or to an employer action to
dissolve a corporation as in the case of Weir.
Upon appeal, the United States Court of Appeals rendered an
opinion "limited to holding that the district court has
jurisdiction under Section 302(e) to entertain an action to
test the legality of employee welfare funds and to enjoin
violations of Section 302 at the instance of the Association
on behalf of its employer — contributor members" (the opinion
is numbered 12813 of the September, 1959 Term, Seventh Circuit
Court of Appeals). Subsequently, defendants filed a motion in
the Court of Appeals to extend time to file a petition for
rehearing which motion was granted extending said time until
June 9, 1960.
I should note for the record that today is June 6, 1960.
On May 31, 1960, collective bargaining agreements entered
into on June 1, 1955, between Local No. 5 and several groups
of plastering contractors expired.
On May 31, 1960, members of Local 5 voted not to work
without a contract and since May 31, 1960, have not worked for
members of plaintiff Association, who have not signed new
agreements with Local No. 5. Presently, approximately 146
plastering contractors out of the approximately 180 plastering
contractors within the jurisdiction of Local No. 5, have
signed new agreements with Local No. 5 substantially similar
to defendants' Exhibit A, herein. Plaintiff Association,
according to the records of Local No. 5, is composed of
approximately 29 active contractors and employs approximately
375 journeymen plasterers out of approximately 1,400 active
journeymen plasterers within the jurisdiction of Local No. 5.
Plaintiff estimates, however, that its members employ over
fifty per cent of such journeymen plasterers.
On May 31, 1960, plaintiff moved before the Court of Appeals
for an emergency temporary restraining order to restrain all
contributions by all employers within the jurisdiction of
Local No. 5 according to their respective collective
bargaining agreements, or, in the alternative, to restrain
Local No. 5 from demanding and the Institute from receiving
any contributions by all employers within the jurisdiction of
Local No. 5, or in the alternative, to restrain Local No. 5
from demanding and the Institute from receiving any
contributions from plaintiff and to further restrain them from
demanding the execution of such agreements providing for such
payments.
The emergency motion of plaintiff, which has since been
amended to a motion for preliminary injunction, having been
ordered to this Court for "consideration and prompt
disposition" is presently before me for disposition after full
hearing and consideration of all evidence, arguments and
briefs of the parties. I have also taken into consideration,
and for that purpose have reviewed, the lengthy record in this
protracted litigation.
It is plaintiff's position that the contributions
contemplated by Article VI of the new agreement, here in
question, (Defendants' Exhibit A), signed by the majority of
plastering contractors, though not by plaintiff members,
within the jurisdiction of Local No. 5 are in violation of
Section 302 and that therefore, the contributions should be
restrained as to agreements already signed and that the
execution by other contractors of the said agreement should
likewise be restrained.
"(a) Each Contractor shall contribute and pay
the sum of 14 cents per hour for each hour worked
by Journeymen Plasterers, and 12 cents per hour
for each hour worked by Apprentices and
Superannuated Plasterers based on the first 40
hours of every week to a health and welfare fund
for the purchase of life, medical and hospital
insurance, and such other benefits as the
trustees of such fund shall deem wise and
practical. The Contractor and the Union shall
enter into a declaration of trust and thereby
shall appoint trustees to administer the health
and welfare fund in accordance with Section 302
of the Taft-Hartley Act, as amended.
"The books and records of the Chicago
Plastering Institute shall be audited and an
accounting made by the Institute to the trustees
of the health and welfare fund and the Institute
shall pay over to such trustees that amount which
the audit indicates are funds previously
earmarked for health and welfare benefits.
"(1) For the purpose of educating the public of
the superiority of plaster construction over
...