
    THE CONTROVERSY WITH THE CARPENTERS’ UNION OVER INSTALLATION OF HOLLOW METAL DOORS AND TRIM.
    Common Pleas Court of Montgomery County.
    The H. R. Blagg Company, a Corporation v. Charles P. Rettig et al.
    Decided, May 21, 1923.
    
      Building Trades Unions — History of the Controversy between the Carpenters and the Board of Jurisdictional Awards — Suspension of the Carpenters Relieves Them from Submission to the Award of the Board.
    
    Injunction does not lie to require the suspended united brotherhool of carpenters and joiners to abide by the decision of the hoard of jurisdictional awards giving to the sheet metal workers, after suspension of the carpenters, the work of installing hollow metal doors and trim.
    
      Burkhart, Heald <6 Pickrel, for plaintiff.
    
      Joseph O. Carson and Robert R. Nevin, for defendants.
   Snediker, J.

This case is before the court on a motion for the allowance of a temporary restraining order. The plaintiff is a corporation doing a contracting business in this city. The defendants are in part officers of Local Union No. 104 of carpenters, the union itself, the Carpenter’s District Council, and the United Brotherhood of Carpenters and Joiners of America.

The claims of the plaintiff are: that among the men it employs in the erection of houses and other buildings are a large number belonging to the United Brotherhood of Carpenters and Joiners of America; that in certain buildings now under construction it has been necessary to install hollow metal doors and trim; that a dispute has arisen between the Carpenters and Local Union No. 104 and the union known as the Sheet Metal Workers Union as to which of them is entitled to install these doors and trim; that the International Union of carpenters, sheet metal workers and other affiliated building trade unions have established a court or board known as the Board of Jprisdietional Awards, the function of which board is to decide and determine which trade or union shall do or install certain disputed work; that the carpenters’ union, together with all other unions associated'and connected with the building trades, have agreed to abide at all times by the decision of that board; that the question as to which craft was to install hollow metal doors and trim was submitted to the Board of Jurisdictional Awards in accordance with the agreement made; that the award of the board is binding not only upon the craft but upon all contractors, architects, etc.; that as to this question the decision was in favor of the sheet metal workers’ union and against the carpenters’ union, and information thereof was conveyed to the crafts who were duly instructed that the sheet metal workers’ union and no other craft was to do this work; that the members of the building trades were also notified that if any contractor refused to allow the members of the sheet metal workers’ union to install the work that all crafts were to forthwith leave and refuse to work on any part of such job.

The defendants served notice upon the plaintiff; that they expected to do this work on« the building in question, and thereupon the officers and agents of the various other trades unions and crafts doing other work on the building notified the plaintiff that if the carpenters were allowed to do that work instead of the sheet metal workers, then each and all of them would forthwith strike. At a meeting held by representatives of the different unions and crafts, the carpenters union admitted that they knew of the jurisdictional award referred to and knew that they were bound thereby, but that nevertheless, and in violation of their agreement, that they would instruct their men to leave the job of this plaintiff if the plainiff abided by the decision of the board and allowed the members of the sheet metal workers’ union to do the work. That the plaintiff as well as the defendants had agreed to abide by the award together with all other interested in building trades. And thereupon the plaintiff permitted and allowed the sheet metal workers’ union to do the work; and the agents and officers of the defendant carpenters’ union have threatened to, and will unless. restrained by this court, cause their members to leave the work of the plaintiff, to its great and irreparable injury. That the officers and agents of the defendant/ union are urging their men to refuse to work for the plaintiff and are paying them benefits if they refuse so to do. That plaintiff has no adequate remedy at law..

The plaintiff further charges coercion of its members on the part of the officers of the carpenters’ union and asks that a restraining order issue, restraining the defendants as officers and agents of the carpenters’ union from urging, ordering, directing or coercing the members of said union to leave plaintiff’s work, and restraining them further from paying any benefits to them if they do so leave; and restraining them further from blacklisting any of their members or from taking away their union cards if they quit, and from in any way interfering with any carpenters, whether members of this union or not, who are working for the plaintiff.

The petition setting forth these allegations and praying for this relief having been filed and no temporary restraining order having been issued thereon, there was made and also filed by the parties the following entry of agreement:

“By and with the agreement of all parties the following entry and order is made by the court: that until this eause may be further heard and determined by the court all and each of the defendants shall refrain from ordering, directing, or coercing any member of the defendant union from leaving the work of the plaintiff company, or from blacklisting or taking from any member of the defendant union who stays on the work of the plaintiff company his card or membership in that union. And this order shall remain in effect until the further order of this court.”

This was signed by counsel representing all parties. In due time the case came before the court on a motion for a temporary restraining order. The hearing of the evidence which was offered by both sides on this motion occupied a number of days. The attorneys in the case, after the preparation of their briefs, appeared in argument before the court and the case was recently submitted for decision.

The facts appear to be these: The American Federation of Labor, which has been in existence a great many years, was organized with the object of the encouragement and formation of local trade and labor unions and the closer federation of such associations through the organization of central trade and labor unions in every city, and the further combination of such bodies into state and territorial or provincial organizations; to secure legislation in the interest of the working masses; the establishment of national and international trade unions based upon the strike recognition of the automony of each trade, and the promotion and advancement of such bodies; the establishment of departments composed of national or international unions affiiated with the American Federation of Labor of the same industry, which departments shall be governed in conformity with the laws of the American Federation of Labor; the American federation of all national and international trade unions to aid and assist each other; to aid and encourage the sale of union label goods, and to secure legislation in the interest of the working people and influence public opinion by peaceful and legal methods in favor of organized labor. (Article 2, Sections 1, 2, 3 and 4, Constitution of A. F. of L.).

Of the American Federation of Laber the United Brotherhood of Carpenters and Joiners of America is and has been for years a component part. One of the departments established by the American Federation of Labor is known as the Building Trades Department. It was organized February 10, 1908, and in its membership includes national and international building trades organizations, recognized as such, duly and regularly charted by the American Federation of Labor and affiliated therewith which are universally employed in the building industry, either in erection, repair, or alteration. The United Brotherhood of Carpenters and Joiners of America are and has been since its organization in this department. Section Three of the Constitution of the Building Trades Department of the A. F. of L. reads as follows:

“Recognizing the justice of trade jurisdiction, .we aim to guarantee to the various branches of the building industry control of such work as rightfully belongs to them and to which they are justly entitled.”

In 1919 at a convention of the Building Trades Department, held at Atlantic City, the executive council of Building Trades in its report to the convention said:

“For a considerable time past there has been a tendency manifested on the part of certain contractors, architects, and engineers, as well as representatives of our affiliated international unions to institute some tribunal through which jurisdictional disputes in the building industry might be eliminated. ’ ’

Further reporting, the executive council detailed efforts to this end on the part of General Contractors, of the American Institute of Architects, and of John B. Lennon, a conciliator of the Labor Department of the United States Government and formerly treasurer of the American Federation of Labor, and the executive council submitted to the Convention a revised tentative plan the proponents of which were John B. Lennon, representing the Department of Labor; E. J. Russell, Water Kilhan, representing the Associated General Contractors of America; E. W. Roaugh, representing the National Association of Builders’ Exchanges; W. B. Luce, general contractor; and John H. Dunn, W. J. Spencer, William Dobson, John J. Hynes and John Cos-grove, representing the Building Trades Department. The plan proposed was signed by the foregoing gentlemen in their representative capacities.

This plan was adopted by the convention and it became necessary for the Building Trades Department, upon such adoption, to elect three representatives or arbitrators to serve on the Board. Officers elected at the organization of the National Board for Jurisdictional Awards were: E. J. Russel, chairman; William L. Hutcheson, vice-chairman; and William J. Spencer, executive secretary. As representing the Building Trades Department on the Board for Jurisdictional Awards in the building industry there were chosen William Dobson, John H. Donlin, and John' J. Hynes. This selection was in accord with Article 14 of the Constitution of the National Board for Jurisdictional Awards which reads as follows:

“The Board shall consist of eight members, three to be selected by the Building Trades Department of the American Federation of Labor, they to be international officials, and one each by the American Institute of Architects, the Engineering Council, the Associated General Contractors of America, the National Association of Builders’ Exchanges, and the National Building Trades Employers’ Association.”

Other members of the National Board for Jurisdictional Awards were chosen as here provided and the board proceeded to function under its constitution and under rules which it had adopted for its procedure. Among the things that were considered by the Board was a dispute between the United Brotherhood of Carpenters & Joiners and the Amalgamated Sheet Metal Workers International Alliance. Under date of December 4, 1920, the board rendered a decision that “the setting of hollow metal frames and the hanging of hollow metal sash, when such frames and sash are made of No. 10 guage metal or lighter, is the work of the sheet metal workers:” and decided that “the hanging of such doors, except sliding doors, the installation of the door frames, the placing of trim around door or other openings, and the placing of all other metal trim is the work of the sheet metal workers whenever the metal is of No. 10 gauge or lighter.”

The United Brotherhood of Carpenters and Joiners of America were not satisfied with this decision or with the procedure leading up to its rendition, and such dissatisfaction was openly expressed. So that at the Fifteenth Annual Convention of the Building Trades Department, held at Denver,. Col., the question came before the convention as to whether or not the National Board of Jurisdictional Awards was to be sustained in its decision, and it was moved by Delegate Bowen of the bricklayers “that this convention go on record as re-affirming its position in regard to the election of delegates from this body to serve on the National Board for Jurisdictional Awards and that the decisions of that board be and they are hereby accepted by this convention.” The motion was seconded and carried, eight votes being recorded in the negative on a viva voce vote. Delegate Hutcheson who is and then was General President of the United Brotherhood of Carpenters and Joiners of America asked “an explanation from the chair as to what the action of the convention just taken means,” and was informed that it re-affirmed the action taken by a previous convention which adopted the National Board for Jurisdictional Awards as a part of the Department and that it made its obligatory upon the affiliated organizations to take part.

Upon this statement there was a discussion in which Hutcheson said: “The Brotherhood of Carpenters does not feel they are bigger than the building trades combined, but the general officers are bound by certain actions of their convention, and we again notify you that we can not accept the decisions. And that still goes, and you might as well take action now if you are going to take it.” And President ITuteheson entered into an explanation of the position of the carpenters, whereupon Delegate Duncan made the following motion:

“That the subject matter of the contention between the United Brotherhood of Carpenters and Joiners and this Department on the subject matter of decisions of the National Board for Jurisdictional Awards be referred to the Executive Council of this Department to take up with the Executive Board of the Brotherhood of Carpenters and with the officers of the National Board for Jurisdictional Awards, so that the three Boards can sit together and work out a plan that will be satisfactory to all.”

To this, Delegate Bowen offered the following amendment:

“I move as an amendment to the motion of Delegate Duncan that any union failing to comply with the terms of a decision rendered by the National Board for Jurisdictional Awards be suspended by this department from all rights and privileges and protection as a union of the department.”

After discussion, in which it was stated by the president that the amendment meant “the suspension of any organization that refuses to comply,” the role was called on the amendment and thirty-five votes were registered in the affirmative and twenty-five in the negative, the carpenters refusing to vote. Thereupon, the motioii as amended was adopted by viva voce vote, and the United Brotherhood of Carpenters and Joiners of America from that time to the filing of this action stood suspended as members of the Building Trades Department of the American Federation of Labor.

Section 7 of the Constitution of the Building Trades Department reads as follows:

“No organization that has seceded or been expelled or suspended by this department * * * shall, while under such penalty, be allowed representation or recognition in this department or in any local or state council, under penalty of suspension of the body violating this section.”

With respect to the manner and form in which this suspension occurred, we have nothing whatever to do and must therefore áccept it as a fact subject to the provisions of Section 7, just quoted. Both the American Federation of Labor and the Building Trades Department are voluntary associations and have final determination as to their membership. We must not lose sight of a fact which appears in this record that the National Board for Jurisdictional Awards was created for the benefit of the building industry and not solely for the benefit of the Building Trades Department of the American Federation of Labor. It is an organization other than a federation of labor or a trade or labor union. We must also keep in mind that representation on this board, as far as labor is concerned, is of members elected by the Building Trades Department. It is true that certain international associations and brotherhoods became signatories to the plan but only as expressing their approval of what was proposed to be done by the Building Trades Department. It is therefore only through its connection with the Building Trades Department that the Brotherhood of Carpenters was able to avail itself of the Board of Jurisdictional Awards, and when it was suspended it lost that privilege.

The record shows that the decision or award here in question was rendered prior to the suspension. Can the suspension be availed of by the carpenters in resisting obedience to the award?

The plaintiff here asks for an injunction based on its terms. Pomeroy in his work on Equity says:

“An injunction restraining the breach of a contract” (and it is in this character alone that an award is treated when courts of equity have interfered and undertaken to enforce them) “is a negative specific enforcement of that contract. The jurisdiction of equity to grant such injunction is substantially coincident with its jurisdiction to compel a specific performance. Both are governed by the same doctrines and rules, and it may be stated as a general proposition that whenever the contract is one of a class which will be affirmatively specifically enforced, a court of equity will restrain its breach of enforcement which its terms permit.”

As quoted by Judge Spear in the 48 O. S., at page 332, Mr. Pomeroy says in his work on Contracts, Section 163:

The peculiariy distinctive feature of the equitable doctrine is that the remedial right to a specific performance must be mutual. If, • therefore, from the nature, or from the contract itself, from the relations of the parties, from the personal incapacity of one of them or from, any other cause the agreement, devolves no obligation at all upon one of the parties, or if it can not be specifically enforced against him, then and for that reason he is not in general entitled to the remedy of a specific performance against his adversary party, although 'fiherwise they may be no. obstacle arising, either from the lerms of the contract or from his personal status and relations, to an enforcement of the relief against the latter individually.”

Again at Section 165, he says that,

“It is a familiar doctrine that if the right to specific performance of a contract exists at all, it must be mutual. The remedy must be alike attainable by both parties to the agreement. ’ ’

In that same opinion Judge Spear says:

“However, after a somewhat careful examination of the numerous eases cited by counsel, and many others, we are inclined to the conclusion that the general doctrine laid down by Mr. Pomeroy is sustained by the apparent weight of authority.” (And here the court cites different cases.)

This plaintiff in his petition and in the evidence shows that he is a member of the Associated General Contractors and appeals to Article 10 of the Constitution of the National Board for Jurisdictional Awards, which is: “The decisions shall govern the architects and engineers in writing specifications, and the contractors in awarding contracts;” and says because of this provision, and because of his association with the general contractors, he is entitled to his remedy against the defendants, If the United Brotherhood of Carpenters and Joiners were still members of the Building Trades Department, his right to the benefit of a proper decision of the Board would be undeniable. But since under Section 7 of the constitution of the Building Trades Department, the United Brotherhood of Carpenters and Joiners of America are no longer entitled to representation or recognition in that department, they can not claim the award or claim any obligation on the part of the Building Trades Department to enforce the award and no such action can be taken by the Building Trades Department which is a real party submitting to arbitration by the jurisdictional board. They have lost the benefit of all awards made in disputes in which they have been interested and are denied reopening and rehearing under Article 7 of the constitution of the National Board of Jurisdictional Awards. The defendants being unable to compel performance of the awards, no mutuality in that regard exists' as between them and the Associated General Contractors.

At the hearing the court made inquiry of Mr. Russell, Chairman of the National Board for Jurisdictional Awards, as follows:

“Q. Mr. Russell, whom does the decision of your board bind ?
A. The decision of our board is supposed to bind all of the trades. That is practically what it amounts to; to bind all of the trades It also binds the American Institute of Architects to perform its share of the work which is specified that the work shall be executed in conformity with the decision of the board where disputes. arise. And it binds the contractors, or the engineers just the same as the architects; and it binds the contractors to do the same thing.
Q. That is what I understand it to mean. Is that contingent on membership in the Building Trades Department?
A. That is contingent on membership in the Building Trades Department, or a membership in the Institute of Architects or American Engineers’ Society, or the Associated General Contractors of America, or the National Building Trades Employers Association.
Q. Now, suppose one of these trades had a membership in the Builairg Trades Department, and afterwards severed that membership,—
A. Yes.
Q. liow about your decision.
A. Well, they may, as in the case of the carpenters, ignore it and refuse to abide by it.
Q. is there anything in your constitution which provides that it shall afterwards be binding upon them?
A. No, I should say not.”

In these declarations the chairman of the board took a position which the law sustains, and at the same time he contended that there was no technical defect in the decision in question. By a technical defect we here mean anything which showed a want of jurisdiction or • which was a prejudicial irregularity. It clarifies our position to ‘consider that the same rule as to the obligation of the awards would apply to an architect who severed his connection with the American Institute of Architects, or to a contractor who ceased to be a member of Associated General Contractors, etc.

We find, therefore, that if, after suspension, the carpenters ' see fit to disregard the terms of the award here in question, such award ought not be imposed upon them by this court; nor should they be restrained from non-observance of the award.

The motion for a temporary restraining order is, therefore, disallowed.  