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Local Union Number 502 of Hod Carriers'' Building and Common Laborers'' Union v. Park Arlington Corp.

Decided: April 3, 1962.


Mintz, J.s.c.


[73 NJSuper Page 428] Plaintiff union and the individual plaintiffs, members of said union, filed a complaint in which it is alleged that the union was the collective bargaining agent for all its members; that on March 22, 1961 defendant Park Arlington Corp. (hereinafter referred to as Park Arlington) entered into a collective bargaining agreement

with said union; and that defendant Jackson & Jackson, Inc. (hereinafter referred to as Jackson, Inc.) likewise entered into a similar collective bargaining agreement on April 6, 1961. Each of said agreements contained the following pertinent provisions:

"Article III Section 3.6:

This agreement shall apply to the work jurisdiction of the Union and include the work performed by the following types of employees and the following work.

(g) Tending to carpenters, carrying all rough lumber to the nearest point of installation or erection on all jobs or operations. ('Tending to carpenters' includes the unloading, handling and carrying of lumber and all carpenter materials including prefabricated sections of houses to some central points for erection on each floor, and includes the unloading and handling of rough lumber to the nearest point of erection.)"

"Article IX Section 4. The employer agrees, during the term of this Agreement, that he will not sell, sublet or assign any contract or agreement for the work covered by this Agreement or any part thereof except to a contractor who agrees to comply with all the terms and conditions of this Agreement."

The complaint further alleges that on or about March 22, 1961 Park Arlington commenced the construction of an apartment house building in East Orange, N.J., and that on or about April 4, 1961 it subcontracted part of the work to defendant Jackson, Inc. In the early part of April 1961 defendant Jackson, Inc. hired the individual plaintiffs through the Local 502 hiring hall pursuant to said agreement. They were assigned to work on the East Orange project and continued working until May 4, 1961, at which time the windows were ready to be installed in the first-floor apartments. At this stage in the construction Park Arlington subcontracted the carpentry work to an unknown carpenter.

Additionally, it is asserted that defendant Sassone, business agent for the Essex County and Vicinity District Council of Carpenters and Millwrights of the United Brotherhood of Carpenters and Joiners of America, A.F. of L.-C.I.O., ordered and authorized the carpenters to

carry their own materials and do all work coming under the classification "tending to carpenters," and forbade the carpenter subcontractor from hiring any laborers to do said work under penalty of suggested "trouble" on the carpenter subcontractor's other jobs within the area. On May 4, 1961 and thereafter, pursuant to Sassone's orders, the carpenter's employees carried their own materials and did all the work coming under the classification of "tending to carpenters." Park Arlington, through its president Max Kessel, refused to stop the continued breach of contracts and justified the refusal on the ground that Gerald Sassone and Louis Vehling, president of the Building and Construction Trades Council of Essex County, had forbidden him to employ or permit laborers to carry any lumber and that he could not afford any trouble with Sassone and Vehling.

The complaint further avers that plaintiffs were "paid off" on May 5, 1961 and that they were refused further employment. Nevertheless, the individual plaintiffs continued to report to work every day from May 7 to May 11, but were not permitted on the job. On May 10, 1961 defendant Max Kessel, president of Park Arlington, and Stanley Jackson, president of Jackson, Inc., held an informal meeting with a representative of plaintiff Local 502 at the construction site. As a result of this meeting they promised the representative that they would permit the laborers to return to work on May 15, 1961 and that there would be no further violations of the collective bargaining agreement. Pursuant to the promises that were made, plaintiffs were permitted to return to work on May 15 but were again refused work on May 16 at the direction of Stanley Jackson, who was allegedly operating under orders from Kessel, Sassone and Vehling.

On May 17 plaintiffs filed charges of unfair labor practices with the National Labor Relations Board (N.L.R.B.) against all the named defendants. It appears that the N.L.R.B. administratively determined that the operations of Jackson met the Board's jurisdictional standards.

As to Park Arlington, said corporation filed a commerce questionnaire from which one can infer the volume of business transacted by that defendant met the interstate commerce requirements of the N.L.R.B. These charges were subsequently withdrawn with the permission of the Board and this suit instituted.

Count 1 of the complaint alleges that the conduct of defendants Park Arlington, Jackson, Inc., Max Kessel and Stanley Jackson constituted a breach of contract for which plaintiffs seek damages. Count 2 sounds in tort, alleging interference with the collective bargaining agreements, for which damages and injunctive relief are sought. (A stipulation of dismissal has been filed as to Vehling.)

Defendants move to dismiss the complaint because of this court's lack of jurisdiction over the subject matter which they assert was pre-empted by Congress. Plaintiffs urge that count 1 of the complaint against the corporate defendants is for breach of the respective collective bargaining agreements, and that such suit is maintainable in the appropriate state court. Charles Dowd Box Co. v. Courtney , 368 U.S. 502, 82 S. Ct. 519, 7 L. Ed. 2 d 483 (1962).

Defendants urge that the alleged breaches of the respective contracts stem from unfair labor practices, and that under the landmark decision in San Diego Bldg. Trades Council v. Garmon , 359 U.S. 236, 79 S. Ct. 773, 3 L. Ed. 2 d 775 ...

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