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NATIONAL WRECKING CO. v. KUMEROW

April 1, 1985

NATIONAL WRECKING COMPANY, PLAINTIFF,
v.
ERNEST KUMEROW, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Bua, District Judge.

ORDER

Before the Court is plaintiff's motion for a temporary restraining order to enjoin the defendants from striking, work stoppage, and illegal picketing at various locations where plaintiff and defendants are engaged in demolition. For the reasons stated herein, plaintiff's motion for a temporary restraining order, pursuant to Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, Fed.R.Civ.P. 65(b) and Rule 12(a) of the Local Rules, is denied.

I. FACTS

On July 15, 1984, plaintiff National Wrecking Company, through the Chicago Building Wreckers Association, entered into a collective bargaining agreement with defendant Construction and General Laborers' District Council of Chicago and Vicinity and Laborers' Local Union No. 225 covering plaintiff's employees working within Cook County, as well as other counties. Section 8 of the collective bargaining agreement prohibits strikes or work stoppages by employees and provides for binding arbitration of disputes and grievances with respect to the application and construction of the agreement. Section 8 reads as follows:

  UNION agrees that there shall be no strike Or
  picket against this EMPLOYER during the period of
  this Agreement; nor shall it engage in or
  participate in any sympathy strike or secondary
  boycott directed against EMPLOYER. The parties
  further agree to arbitrate their grievances with
  the Illinois Department of Concilliation and
  Mediation or similar arbitration association. The
  UNION does, however, maintain its right to strike
  for nonpayment of wages, health and welfare,
  pension contributions or dues deductions by
  EMPLOYER beyond sixty (60) days.

Plaintiff contends that defendants have violated this no-strike and mandatory arbitration clause by virtue of their picketing and work stoppage at two of plaintiff's demolition sites in Chicago, Illinois, on March 27, 1985. Plaintiff further asserts that the dispute underlying defendants' strike is their desire to renegotiate the amount of plaintiff's pension fund contributions from 24 cents per hour, contained in the collective bargaining agreement, to $1.30 per hour. Since it has refused to renegotiate the agreement, plaintiff concludes that defendants' strike is an attempt to force plaintiff to renegotiate. Since the amount of pension fund contributions is a contract dispute, plaintiff further concludes that the underlying dispute involves an issue subject to mandatory arbitration and therefore defendants' strike violates the no-strike clause in the agreement.

Defendants counter that they have a right to strike for nonpayment of dues deductions. The no-strike clause specifically excludes from its scope a strike for nonpayment of dues deductions beyond 60 days. Defendants assert that, since the beginning of the agreement, the plaintiff has failed to pay dues deductions as provided for in Section 6 of the agreement.

In support of their proposition, defendants submit evidence of past payment of dues deductions to counter plaintiff's contentions that there was no set procedure for payment of dues deductions and that plaintiff did not have in its possession proper authorization cards necessary for the payment of dues deductions. Since they have presented evidence of plaintiff's failure to pay the dues deductions for over 60 days, defendants conclude that their strike comes within the exception to the no-strike clause and therefore does not violate the no-strike clause.

II. DISCUSSION

Section 4 of the Norris-La Guardia Act, 29 U.S.C. § 104, prohibits an injunction against a strike or work stoppage. However, in Boys Markets v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), the Supreme Court held that anti-strike injunctions could be issued when the strike arises out of a grievance that is the subject of compulsory arbitration, provided the usual equitable requirements for preliminary relief are met. Id. at 254, 90 S.Ct. at 1594. In Boys Markets, the parties were obligated to arbitrate the underlying grievance that was the occasion of the strike, i.e., whether members of the Retail Clerks Union were entitled to perform certain work being done by nonmembers of their bargaining unit, and the strike was enjoined. See, Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974).

On the other hand, when the parties have not agreed to arbitrate the underlying dispute, as was the case in Buffalo Forge Co. v. United Steelworkers of America, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976), where the issue was whether a sympathy strike violated a no-strike clause, there was no occasion to invoke the policy in favor of compulsory arbitration and, in recognition of the general mandate of § 4 of the Norris-La Guardia Act, the Court held that such a strike may not be enjoined. In short, Buffalo Forge teaches that the mere arbitrability of the issue of whether a strike or work stoppage violates an express or implied no-strike clause does not entitle the employer to a Boys Markets injunction; there must be an underlying arbitrable grievance. Id. at 409-10, 96 S.Ct. at 3148-49; see, Jacksonville Bulk Terminals, Inc. v. International Longshoremen's Ass'n, 457 U.S. 702, 102 S.Ct. 2673, 73 L.Ed.2d 327 (1982); Elevator Mfrs.' Ass'n of N.Y., Inc. v. Local 1, Etc., 689 F.2d 382, 385 (2d Cir. 1982). The issue now becomes whether a case is governed by Boys Markets or Buffalo Forge.

In order to determine whether Boys Markets or Buffalo Forge applies to this case, it is necessary to engage in a preliminary interpretation of the agreement in light of the surrounding circumstances. First, under the agreement, the court must determine whether the strike violates the no-strike clause. Second, if the no-strike clause is violated, the court must determine if the underlying dispute involves a grievance which the parties are bound to arbitrate. Elevator Mfrs.' Ass'n of N.Y., Inc. v. Local 1, Etc., supra, 689 F.2d at 386.

First, the Court holds that the party seeking the injunction, the plaintiff, has failed to show that the defendants have violated the no-strike clause in Section 8 of the agreement. Plaintiff argues that the failure to pay dues deductions is a smoke screen or a sham to hide the real underlying dispute and to enable defendants to strike in violation of the no-strike clause. Defendants have submitted evidence which suggests that plaintiff has not paid dues deductions since at least July, 1984. Plaintiff protests that it was not supplied proper authorization cards necessary to make the dues deductions. However, it has not produced a sample of the proper cards for the Court to compare with the cards produced by the defendants.

In addition, plaintiff has not shown that it ever tendered payment of dues deductions, requested proper authorization cards for payment, or inquired as to the procedure for paying the dues. The evidence which plaintiff does submit tends to support the fact that defendants have asked it to renegotiate the agreement regarding pension fund contributions. From this fact, plaintiff argues that the failure to pay dues deductions is a sham. ...


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