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Utility Contractors Association of New Jersey Inc. v. Toops

decided: December 31, 1974.

UTILITY CONTRACTORS ASSOCIATION OF NEW JERSEY, INC., ET AL.,
v.
ADRIAN R. TOOPS, ETC., ET AL. LOCAL 122 OF THE UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES OF THE PLUMBING & PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, APPELLANT IN NO. 74-1130 LOCAL 236 OF THE UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES OF THE PLUMBING & PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, APPELLANT IN NO. 74-1131 LOCAL NO. 69 (LOCAL 14) OF THE UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES OF THE PLUMBING & PIPEFITTING INDUSTRY OF THE UNITED STATES & CANADA, AFL-CIO, APPELLANT IN NO. 74-1132



APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil Action No. 1943-71).

Adams, Gibbons and Weis, Circuit Judges.

Author: Gibbons

Opinion OF THE COURT

GIBBONS, Circuit Judge

The appellants in these consolidated appeals are three New Jersey locals of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO. They appeal from a consent decree entered against other defendants in the district court, which was entered as a final judgment as to the consenting parties pursuant to Rule 54(b) Fed. R. Civ. P. The plaintiffs are the Utility Contractors Association of New Jersey, Inc., a state-wide organization of employers in the utility construction industry, seven such employers, the National Utility Contractors Association of which the New Jersey Association is a member, three New Jersey locals of the Laborers' International Union of North America, several officers of those locals, five black and five hispanic members of the Laborers' Union. The plaintiff employers utilize the services of Laborers' Union members in laying pipe. The defendants are six New Jersey municipalities, the plumbing inspectors of those six municipalities, and the three defendant Plumbing and Pipefitting locals.

The complaint, in four counts, charges that the Plumbing and Pipefitting locals, whose membership is overwhelmingly white, conspired with the plumbing inspectors, who are members of Plumbing and Pipefitting locals, and with the municipalities, to cause the adoption of allegedly discriminatory municipal building codes. These codes required that pipe to be laid in any trench between the curb line of the street and the building line be laid by licensed plumbers, and that such codes be enforced by criminal sanctions. The complaint further charges that the effect of the codes and their enforcement is to deprive the members of the Laborers' Union locals, who are substantially black and hispanic, of work which they are capable of performing, which their employers want them to perform, which is identical with the work they perform outside the curb line, and which they have traditionally performed in the past.

The first count of the complaint alleges that the enforcement of the building codes denies blacks and other minority group members the equal protection of the law guaranteed by the fourteenth amendment, the Civil Rights Act of 1964, 42 U.S.C. § 2000e (sic), and applicable New Jersey statutes. The second count alleges that the conspiracy violates 42 U.S.C. § 1985. The third count alleges the violation of 42 U.S.C. § 2000d. The fourth count alleges a violation of § 1 of the Sherman Antitrust Act, 15 U.S.C. § 1.

The complaint seeks both injunctive relief and damages. It asks that the individual plaintiffs be designated as class action representative plaintiffs, that the plumbing inspector defendants be designated as class action representative defendants for all similarly situated municipal plumbing inspectors in New Jersey, and that the named municipalities be designated as class action representative defendants for all New Jersey municipalities. Pursuant to Rule 23(c)(1) Fed. R. Civ. P. the plaintiffs applied for an order, entered on November 13, 1972, designating all municipalities of New Jersey (there are 567 such municipalities) as a proper class of defendants, and the individually named municipalities as class representatives. A notice to this effect was sent to each New Jersey municipality pursuant to Rule 23(c)(2). In response eight of the municipalities sent letters to the Clerk of the United States District Court opting out of the class.

Meanwhile, settlement negotiations proceeded between the plaintiffs and the class action representatives of the municipalities. These resulted in a compromise in which a consent judgment would be entered dismissing all demands for money damages against all New Jersey municipalities, declaring that pipelaying work outside buildings is labor not requiring a plumbing license and ordering that all building code ordinances inconsistent with that declaration be amended by adopting the language:

"Anything in this Code, or any other ordinance, rule, regulation or enactment of the (insert name of municipality) or any of its personnel notwithstanding, no individual or corporation shall be required to obtain a permit or license in order to engage in the occupation of laying or installing pipe or conduit of any nature outside of buildings and inside property lines." (Appendix at 141a).

Notice of the proposed compromise was mailed to all New Jersey municipalities pursuant to the court's order and Rule 23(e) Fed. R. Civ. P.

The court's order, which was included in the mailing, provided that an order embodying the settlement would be entered if objections were not forthcoming within twenty days. No municipality objected. The appellants did object, contending that the settling defendants had not adequately considered the public health and safety. After hearing these objections the district court concluded that the defendant municipalities were best able to judge these considerations. Moreover, the district court found that the proposed consent decree neither afforded relief against, nor adjudicated any rights or obligations of the non-settling defendants, and that they had no standing to object to a compromise between other parties. The court entered the consent decree, and ordered that it be entered as a final judgment.

These appeals followed. We dismiss them.

The appellants Plumbers and Pipefitters locals have discharged a shotgun blast at the procedures which led to the consent decree and at its claimed substantive defects. Nowhere, however, are we informed what gives them standing as appellants to seek to overturn an injunction which does not bind them and interferes with no legal relationship between them and the settling parties.*fn1 This small point of appellate procedure has not often been litigated, probably because it is so elementary. The leading authority is Judge Staley's opinion for ...


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