The opinion of the court was delivered by: McMILLEN, District Judge.
The Corrected First Amended Complaint (hereinafter referred to
as the complaint) seeks relief pursuant to §§ 301 and 303 of the
Labor Management Relations Act of 1947, 29 U.S.C. § 185, 187.
Defendant has filed a motion to dismiss the complaint, pursuant
to Rules 12(b)(1) and (b)(6). Rule 12(b)(1) is invoked because
defendant takes the position that certain of plaintiff's
theories fall within the exclusive jurisdiction of the National
Labor Relations Board.
Although defendant has filed no materials beyond the pleadings
in support of this motion, it relies on certain facts and
factual conclusions inferred from the temporary restraining
order proceedings in this case. These matters beyond the
pleadings cannot be considered on a motion to dismiss, since
the factual record on many points is not closed. A plaintiff is
not required to prove its case on the merits at a preliminary
hearing. E. g., Progress Development Corporation v. Mitchell,
286 F.2d 222, pp. 233-34 (7th Cir. 1961). For the purposes of
this motion, therefore, the allegations of the complaint are
taken as true.
Plaintiff attached the collective bargaining agreement between
itself and defendant to the complaint. In paragraph 9 it
alleges that "Article VI of the Contract also contains a
mandatory arbitration clause which requires that all grievances
caused by a violation of the parties' agreement be submitted
to the joint arbitration committee and investigated and
resolved for at least seven (7) days before any stoppage of
work can occur" (emphasis added). While plaintiff concludes
that Article VI constitutes a mandatory arbitration clause,
plaintiff's allegation limits the scope of that clause to
grievances flowing from a violation of the agreement.
This interpretation of Boys Markets was confirmed in Buffalo
Forge Co. v. United Steelworkers of America, 428 U.S. 397, 96
S.Ct. 3141, 49 L.Ed.2d 1022 (1976). 428 U.S. at 407, 96 S.Ct.
The Court in Buffalo Forge held that Boys Markets was not
controlling there, because "the strike was not over any
dispute between the Union and the employer that was even
remotely subject to the arbitration provisions of the
contract." Ibid. That strike was in sympathy to a primary
strike and had neither the purpose nor the effect of denying or
evading an obligation to arbitrate.
The Court in Buffalo Forge expressly held that an injunction
could not be authorized solely on the ground that the strike
violated a no-strike clause in the contract. 428 U.S. at 409,
96 S.Ct. at 3148. While the applicability of that no-strike
clause to the sympathy strike constituted an arbitrable issue,
the possible remedy was an order to arbitrate, rather than an
injunction pending the arbitrator's result. 428 U.S. at 410, 96
S.Ct. at 3149. Thus, even though the strike produced an
arbitrable dispute in light of the express no-strike clause, it
did not arise from an arbitrable dispute.
Article VI of the contract herein contains the no-strike
[Plaintiff and defendant] . . . hereby agree that there shall
be no lockout by [plaintiff] . . . or strikes, stoppages or
abandonment of work by [defendant] . . . . All grievances
caused by the violation of the working agreement, shall be
first investigated by arbitration committee of the Lake County
Contractors Association and committee representing the Cement
Masons Local No. 362 within seven (7) days before any stoppage
of work occurs. It is understood that this clause applies to
members of the Lake County Contractors Association only.
On its face, the Article provides for an investigation, perhaps
in aid of conciliation, which may or may not constitute binding
arbitration. The seven day limitation before work ceases does
indicate that some binding resolution by the investigators may
be intended. However, plaintiff has sought discovery in an
attempt to demonstrate that the bargaining history and practice
underlying this provision clarifies its vagaries to this
extent. Until this clarification has been accomplished, we find
that the bare language of Article VI is not sufficiently clear
to amount to a "mandatory grievance adjustment procedure"
within the meaning of Boys Markets.
Furthermore, the complaint does not state a claim for
injunctive relief, since the strike must also arise from a
dispute that is subject to a mandatory contract procedure.
There is no specific factual allegation that some such dispute
preceded this strike. On the contrary, the complaint makes it
clear that the dispute giving rise to this strike was not the
result of a dispute covered by this agreement. Plaintiff
expressly alleges that defendant's conduct was intended to
impose secondary pressure on the general contractor (those
theories are discussed below). Plaintiff cannot be heard to
argue that defendant was attempting to draw neutrals into the
battle, to put pressure on the general contractor, and at the
same time allege that a primary dispute, subject to a mandatory
contract adjustment procedure, gave rise to this strike.
Paragraph 12 does not cure this problem. It essentially says no
more than that a dispute exists between the parties regarding
the applicability of the no-strike clause in this context.
Buffalo Forge expressly held that such a dispute, albeit it
may be arbitrable, cannot justify an injunction pending the
arbitrator's decision. Norris-LaGuardia therefore applies, and
the prayer for injunctive relief will be dismissed.
II. The availability of plaintiff's requested relief in money
damages under § 301.
Paragraphs 23-30 of the complaint seek money damages for
defendant's alleged violation of Article VI. This claim
survives a motion to dismiss. Essentially, this is a claim for
breach of contract. The contract does contain an express
no-strike clause, so plaintiff's claim is proper under § 301.
However, whether defendant's conduct amounts to a breach of
that clause is not readily determined, and will have to await
If plaintiff is correct in its contention that Article VI
provides a mandatory arbitration procedure, then the question
of breach of the no-strike clause would be submitted to such
arbitration. However, the question of mandatory arbitration has
not been decided, and this court may ultimately have to resolve
it in light of the bargaining history and practices underlying
Defendant cites a few cases in support of dismissal, but none
of them involved an express no-strike clause. Where a
no-strike clause is implied, it is generally construed as
co-extensive with the obligation to arbitrate grievances.
Defendant's cases involve strikes arising from non-arbitrable
disputes, where the no-strike clause was accordingly found to
be inapplicable. Here an express clause remains to be
construed. Defendant's motion to dismiss will be denied, to
III. The availability of plaintiff's requested declaratory
relief under § 301.
Paragraph 31 of the complaint seeks declaratory relief,
including an order prohibiting defendant and its agents from
relying upon Article VI as justification for any future work
stoppages during the contract term. Depending upon the outcome
of this lawsuit, this court may declare the rights of the
parties and interpret Article VI. But this court will not enter
a prospective order that defendant cannot rely upon its own
interpretation of Article VI in future work disputes.
Similarly, plaintiff also seeks a declaratory judgment that
injunctive relief is appropriate "in the event of another
similar breach of contract." In light of our decision above,
this prayer for prospective relief must be dismissed.
IV. Count II.
Section 303 of the Labor Management Relations Act permits a
cause of action in damages for violations of § 8(b)(4) of the
National Labor Relations Act (29 U.S.C. § 158(b)(4)). Section
303 by its terms is limited to a remedy in damages. Plaintiff
seeks no injunctive relief under Count II, but the "declaratory
relief" sought in paragraph 51 should be stricken, for the
reasons stated above.
Paragraphs 36-43 allege violations of N.L.R.A. § 8(b)(4).
Section 8(b)(4) provides as follows:
It shall be an unfair labor practice for any labor organization
or its agents — (4)(i) to engage in, or to induce or encourage
any individual employed by any person . . . to engage in, a
strike or refusal in the course of his employment to use,
manufacture, . . . or otherwise handle or work on any goods or
to perform any services; or (ii) to threaten, coerce, or
restrain any person . . . where in either case an object
thereof is —
(B) forcing or requiring any person to cease doing business
with any other person . . .
Provided, that nothing contained in this clause (B) shall be
construed to make unlawful, where not otherwise unlawful, any
primary strike or primary picketing;
Defendant argues that it merely engaged in primary "area
standards" picketing of the general contractor. However,
plaintiff's allegations of a secondary objective are sufficient
to withstand a motion to dismiss. Plaintiff alleges that
defendant's business agent threatened plaintiff's laborers with
fines if they crossed picket lines, that the defendant union
instructed plaintiff's employees not to work, that plaintiff's
employees were threatened with physical violence if they
worked, and that defendant's agents at all times failed to
provide plaintiff's employees with requested guidance as to
whether they should work at times when no nonunion
subcontractor was on the job. Paragraph 35 alleges that
defendant's object was to force plaintiff to cease doing
business with the general contractor, or alternatively to force
the general contractor to cease doing business with any
non-union contractors on the job-site. These allegations, taken
as true for purposes of this motion, are sufficient to state a
secondary motive and conduct that goes
beyond mere informational picketing of the general contractor.
See generally, Texas Distributors, Inc. v. Local Union No.
100, 598 F.2d 393 (5th Cir. 1979).
"Hot Cargo." Paragraphs 44-48 allege that defendant violated
§ 8(b)(4)(A) and § 8(e) because an object of its picketing is
to force the general contractor to cease doing business now and
in the future with any and all non-union subcontractors.
Section 8(e) in part declares illegal any "hot cargo" agreement
to cease dealing with any other person, and § 8(b)(4)(A)
forbids any secondary pressure to obtain a § 8(e) agreement.
Plaintiff alleges that defendant's picketing is therefore
illegal, and that plaintiff has been damaged thereby.
Defendant argues that plaintiff cannot assert any claim founded
on § 8(e), absent an unfair labor practice ruling by the N.L.
R.B. Defendant cites nothing that remotely supports this
proposition, and it is inconsistent on its face with § 303
which permits a suit for damages arising from any § 8(b)(4)
unfair labor practice. Plaintiff does not rest on § 8(e) alone,
but on § 8(e) insofar as §§ 8(b)(4)(i) and (ii)(A) incorporate
the § 8(e) prohibition. The § 303 remedy is independent of the
remedy of unfair labor practice proceedings. See International
Longshoremen's & Warehousemen's Union v. Juneau Spruce Corp.,
342 U.S. 237, 243-45, 72 S.Ct. 235, 239-40, 96 L.Ed. 275
For the first time, in its reply brief, defendant suggests that
the construction industry proviso to § 8(e) legitimizes such a
"hot cargo" agreement. The proviso declares that nothing in §
8(e) shall apply to an agreement between a labor organization
and an employer in the construction industry relating to the
contracting or subcontracting of work to be done at the job
site. Defendant's reliance on the proviso appears to have
merit. However, secondary pressure utilized to secure such an
agreement may be unlawful even in the construction industry.
Since defendant has not briefed this point, and plaintiff has
not yet had an opportunity to address it, it can be raised in
defendant's answer to the complaint.
V. Count III.
Count III of the complaint seeks a declaratory judgment as to
plaintiff's rights under its collective bargaining agreement
with defendant. Plaintiff contends that it has a right to
temporarily replace cement finishers, members of defendant's
union, with other employees while the cement finishers refuse
to work, provided that the replacement employees receive the
wages and fringe benefits called for in the bargaining
agreement. The agreement is silent on this point. Defendant has
not specifically attacked Count III, presumably because it will
be subsumed by the merits of the other two counts.
IT IS THEREFORE ORDERED:
Count I. (a) Those portions seeking injunctive relief under §
301 are stricken and dismissed. (b) The complaint states a
claim for damages under § 301. (c) Paragraph 31 of the
complaint is stricken.
Count II. (a) Paragraphs 36-43 state a claim under § 303,
arising from § 8(b)(4) violations. (b) Paragraphs 44-48 may or
may not state a claim, depending on the construction industry
proviso to § 8(e). (c) The declaratory relief sought in
paragraph 51 is stricken.
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