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EMPLOYING PLASTERERS' ASS'N v. JOURNEYMEN P.P.

June 6, 1960

EMPLOYING PLASTERERS' ASSOCIATION OF CHICAGO, PLAINTIFF,
v.
JOURNEYMEN PLASTERERS' PROTECTIVE & BENEVOLENT SOCIETY OF CHICAGO, LOCAL NO. 5, ET AL., DEFENDANTS.



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.

Article VI provides:

    "(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.
    "(b) The Contractor shall continue to pay and
  contribute the sum of 7 cents per hour for each
  hour worked by a Journeyman Plasterer, and 5
  cents per hour for each hour worked by
  apprentices and superannuated plasterers based on
  the

  first 40 hours of every work week to the Chicago
  Plastering Institute, a body corporate, organized
  under the laws of the State of Illinois.
    "(1) For the purpose of educating the public of
  the superiority of plaster construction over
  ...

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