On defendant's motion for summary judgment.
Plaintiff union has instituted the current action to recover on behalf of member employees represented by it from defendant contractors the total unpaid amount of a wage rate raise from May 1, 1958 to August 12, 1958.
Defendant contractors now move to dismiss the suit on the ground that this court lacks jurisdiction, claiming that the National Labor Relations Board has exclusive jurisdiction of the subject matter, relying on briefs, admissions
and answers to interrogatories. No formal admissions made by the plaintiff have been filed. Plaintiff has filed a brief containing statements which may be considered admissions for the purpose of this motion. Plaintiff has answered interrogatories listing the names of 15 contractors, not including the defendants, who signed a new contract between May 1, 1958 and August 12, 1958 and had a contract with the union prior to that time. Plaintiff further admitted negotiating with Associated Contractors but did not recognize the group as an exclusive bargaining representative.
Plaintiff contends that for some time prior to May 1, 1958 defendants used a hiring hall to obtain carpenters and millwrights; that there is a custom in the industry that by so doing the plaintiff agreed to abide by the prevailing wage rates; that the prevailing rate became $3.80 on May 1, 1958, but defendants refused to pay the increase until after a strike on or about August 1, 1958. Plaintiff further contends that defendants agreed to pay the retroactive wages to all employees furnished to them through the hiring hall from May 1, 1958 to August 12, 1958.
Factually, it appears that plaintiff union had some contracts with individual contractors prior to May 1, 1958, on a $3.55 basis, but no written contract with the individual defendant contractors. While referred to as a collective bargaining agreement by plaintiff, actually it appears to be a series of individual contracts with 15 contractors. It does not appear that the union was the exclusive bargaining agent, either directly or through membership in Associated Contractors.
Defendants associated with defendant Riggs-Distler admit that prior to May 1, 1958 there existed a collective bargaining agreement in effect between the local union and the Associated Contractors of Monmouth and Ocean Counties, an employee bargaining group; that this agreement set the wage scale for carpenters at $3.55 an hour. The expiration date of the agreement was April 30, 1958. They contend that defendant contractors had no contract with
the local union and paid their carpenters $3.55 an hour because it was the prevailing rate in the area; that the plaintiff failed to give defendants notice of the proposed raise and failed to bargain; that plaintiff has no right to assert claims on behalf of its members, and that this court has no jurisdiction.
Defendants associated with Thomas Pagan, Inc. contend that there was no contract between the local union and the Associated Contractors of Monmouth and Ocean Counties, and refer to answers to interrogatories propounded by them, numbers 3, 4, and 7, wherein the union answers that it never recognized Associated Contractors as the exclusive bargaining agent. Further, that the pleadings show that no contract was made, but the issue is whether or not a contract was effected.
It is contended in plaintiff's brief, but not in the complaint or pretrial order, that prior to the expiration date of the existing contracts the local union served notice on all contractors, whether parties to the wage agreements with the local union or not, under the provisions of section 8(d)(4) of the Labor Management Relations ...