Wood, Wire & Metal Lathers’ International Union et al. v. United Brotherhood of Carpenters and Joiners of America et al.

Contractors subletting work should stipulate that subcontractors be bound by agreement establishing National Joint Board and its procedural rules in assignment of work.

The contractor who has the responsibility for the performance and installation shall make a specific assignment of work. For instance, if contractor A subcontracts certain work to contractor B, then contractor B shall have the responsibility for making the specific assignment for the work included in his contract. If contractor B in turn shall subcontract certain work to contractor C, then contractor C shall have the responsibility for making the specific assignment for the work included in his contract. It is a violation of the plan for the contractor to hold up disputed work or shut down a project on account of a jurisdictional dispute.

The assignment to be made by the contractor shall be according to the following basis:

(a) Where a decision of record applies to the disputed work, or where an agreement of record between the disputing trades applies to the disputed work, the contractor shall assign the work in accordance with such agreement or decision of record. Agreements and decisions of record are compiled in the “Green Book” published by the Building and Construction Trades Department, AFL-CIO, (“Agreements and Decisions Rendered Affecting the Building Industry”). Where a national agreement between the disputing trades applies that has been filed with the Joint Board and attested by the Chairman, even though not an agreement of record, the contractor shall assign the work in accordance with such agreement. In negotiating such national agreements between International Unions, consultation with the appropriate management groups on the making of agreements between International Unions is desirable and should be carried on.

Decisions of record are applicable to all trades. Agreements of record are applicable only to the parties signatory to such agreements.

(b) Where no decision or agreement under (a) applies, the contractor shall assign the disputed work

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in accordance with the prevailing practice in the locality. The locality for the purpose of determining the prevailing practice shall be defined ordinarily to mean the geographical jurisdiction of the local Building and Construction Trades Council in which the project is located.

(c) If a dispute has arisen prior to the specific assignment of work where no decision or agreement under (a) applies, or where there is no predominant practice in the locality, the contractor shall nonetheless make a specific assignment according to his best judgment after consulting the representatives of the contesting trades and considering any arguments or facts the trades may wish to present regarding the applicable decisions or agreements of record or practice in the locality. The contractor should also consult any local association of contractors in the locality regarding the established practice.

When a contractor has made an assignment of work, he shall continue the assignment without alteration unless otherwise directed by the Joint Board or by agreement between the International Unions involved.

(a) (Not material)

(b) Starting of work by a trade without a specific assignment by an authorized representative of the responsible contractor shall not be considered an original assignment to that trade, provided that the responsible contractor or his authorized representative, promptly, and in any event within eight working hours following the start of the work, takes positive steps to stop further unauthorized performance of the work by that trade.

In the event that there is any stoppage of work, or threat of a stoppage, or cessation of operations, arising out of jurisdictional dispute following an assignment of work, the contractor is to notify immediately the Chairman of the Joint Board, 815 16th Street, N.W., Washington, D.C. 20006.

(There follows provision as to the content of the notice.)

This is followed by a section entitled “Union’s Responsibility” and I quote paras. 1 and 2 of the latter:

1. The agreement provides (Article V, Section 1) that “Pending a decision by the Board or such settlements as may be arrived at through the office of the Chair-

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man of the Joint Board there shall be no stoppage of work arising out of any jurisdictional dispute.

2. When a contractor has made a specific work assignment, all unions shall remain at work and process any complaint over a jurisdictional dispute in accordance with the procedures herein established by the Joint Board. Any union which protests that a contractor has failed to assign work in accordance with the procedures specified above, shall remain at work and process the complaint through its international office. The Joint Board is prohibited from taking action on protests directly from Local Unions or Building and Construction Trades Councils.

It would appear that both appellant union and the respondent union availed themselves in full of the right given in the Green Book to submit jurisdictional disputes to the Joint Board. The Joint Board found that it was completely clogged by a large volume of such disputes. Therefore, in May of 1965 the presidents of the two industrial unions entered into what has been termed throughout the litigation as the “status quo agreement” of the dispute over the matters of installation of ceiling systems and the metal studs to receive dry wall. This status quo agreement was created in a very informal manner. The president of each of the two unions forwarded to the National Joint Board his telegram. The president of the appellant union, Mr. Sal Maso, forwarded a telegram as follows:

SETTLEMENT OF JURISDICTIONAL DISPUTES 815 SIXTEENTH STREET NW WASHINGTON DC

AS PER TELEPHONE DISCUSSIONS TODAY WITH PRESIDENT HUTCHESON OF CARPENTERS WE HAVE AGREED BETWEEN OURSELVES TO APPOINT COMMITTEES OF THREE FROM EACH ORGANIZATION TO TRY AND RESOLVE OUR DISPUTES ON CEILINGS AND NAILABLE AND SCREWABLE METAL STUDS TO RECEIVE DRY WALL WE HAVE ALSO AGREED THAT OUR POSITIONS ON BOTH ITEMS IS TO REMAIN STATUS QUO PENDING OUTCOME OF DISCUSSIONS PRESIDENT

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HUTCHESON IS ALSO TO WIRE YOU WOULD APPRECIATE YOUR CONFIRMATION OF SAME COPY OF THIS WIRE IS BEING SENT TO PRESIDENT HUTCHESON

“MASO”

And the president of the respondent union forwarded his telegram to the same effect which reads as follows:

WESTERN UNION TELEGRAM

May 12, 1965

National Joint Board 815 Sixteenth Street NW Washington DC ATTN WM Cour

As per telephone discussion today with President Maso of the Lathers International, we have agreed between ourselves to appoint committee of three from each organization to try and resolve our disputes on ceilings and metal studs. We have also agreed that work on both items is to remain status quo pending outcome of discussions or a decision by a Review Panel. President Maso is also to wire you and I would appreciate your confirmation of same. Copy of this wire being sent to President Maso.

MAH:em M.A. HUTCHESON GENERAL PRESIDENT

The sparseness of these two telegrams has been considerably improved by a letter written by William J. Cour, the Chairman of the National Joint Board, and addressed to both the said presidents which letter, dated June 10, 1965, to one, and June 11, 1965, to the other, reads as follows:

June 10, 1965 “Jun 11 1965”

Mr. Maurice A. Hutcheson, General President United Brotherhood of Carpenters and Joiners 101 Constitution Avenue, N.W. Washington, D.C. 20001

Dear Maurice:

This is with reference to the meeting held with you and President Maso in the Joint Board office on June 9, 1965, during which we discussed

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certain jurisdictional matters between your respective international unions.

It is my understanding that as a result of this meeting it is clearly agreed that the status quo statement referred to in your telegram of May 12, 1965 is applicable to all of your affiliated local unions, including those in areas covered by recognized local boards. My understanding of your status quo statement is that work will proceed in accordance with the contractor’s assignment and that neither your international union or the Wood, Wire and Metal Lathers International Union will process cases involving metal studs, including floor and ceiling runners, to receive drywall or cases involving ceiling systems before the National Joint Board, local boards, or the National Labour Relations Board while your respective committees are considering these jurisdictional differences and attempting to resolve them.

I sincerely hope that your respective committees will be successful in this effort. If I can be of assistance, please let me know.

Very truly yours,

WILLIAM J COUR

Chairman

WJC/lp

c.c. Mr. Sal Maso—Lathers

Appeals Board

Tysoe J.A., in giving reasons for the Court of Appeal for British Columbia, noted that the parties agreed that the interpretation placed on the so-called status quo agreement by Mr. William J. Cour in that letter was a correct interpretation of the said agreement.

It is the appellant’s submission that the execution of cl. 14.01 in the collective agreement which I have quoted earlier is in breach of the status quo agreement in that it does not permit contractors to proceed in accordance with a contractor’s assignment, i.e., the contractor’s responsibility in the procedural rules which I have quoted above, and that therefore not only the status quo agreement but art. III, s. 9, of the Green Book which I have also quoted has been breached.

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The appellants issued a writ in which they claimed damages for breach of contract, damages for coercion and intimidation of the contractors for the purpose of persuading and attempting to persuade the contractors and subcontractors not to assign work to the plaintiffs, and an injunction restraining the defendants and each of them from coercing and intimidating contractors by persuading and attempting to persuade contractors and subcontractors not to assign work to the plaintiffs. The writ was not served on United Brotherhood of Carpenters and Joiners of America or on George Bengough and the damages were claimed only against the United Brotherhood of Carpenters and Joiners of America, Local 452.

Macdonald J., after trial, dismissed the action, concluding with the statement:

In my opinion the documents do not comprise or include a contract on the part of the defendant Unions not to enter into an agreement that attempts to establish a jurisdiction deviating from the spirit and intent of the agreement and procedural rules. The contract in definite terms provides for something else, i.e. that such conduct shall be a violation of the Green Book agreement, rendering the union responsible liable to prescribed consequences. The Status Quo Agreement when added to and read with the Green and Blue Books does nothing to further a finding that there is in the contract the negative covenant which is essential to the plaintiffs’ case. What it does is make the subcontractor’s assignment even more important because the parties agree that it will stand without appeal to the Joint Board.

In the Court of Appeal, Davey C.J.B.C. would have allowed the appeal in part and given judgment in favour of the plaintiffs for damages in the sum of $1,000 that sum having been agreed upon between parties prior to the trial as the proper quantum of damages. The Chief Justice would have dismissed the claim for the injunction.

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In giving reasons for the majority in the Court of Appeal, Tysoe J.A. said:

The first question that must be decided is whether, as is submitted by the respondent, this action in the courts is premature because the appellants have made no attempt to exhaust internal remedies within the structure of the Building and Construction Trades Department AFL-CIO which are available to them. It is admitted that no such attempt has been made. The appellants contend that there is no obligation on them to first seek those remedies. So, the appellants submit, their action is maintainable.

Concluding a detailed and very carefully reasoned judgment, Tysoe J.A. said:

I am also of the opinion that the appellants have bound themselves and agreed that such dispute shall be settled and adjusted according to the Plan established by such Department and set out in the Green Book. Further, that they will not resort to Court proceedings over the said jurisdictional dispute without first exhausting internal remedies available to them under the said Plan. I am further of the opinion that a right of protest to the National Joint Board is available to the appellants and that Board has jurisdiction to deal with that protest and to prescribe the consequences that are to follow if the protest is upheld within, of course, the powers given to the Board under the provisions of the Green Book and the Blue Book. It follows that, as the appellants have made no attempt to exercise their said right of protest, this action has been brought prematurely and the Courts cannot entertain it.

I would dismiss the appeal.

MacLean J.A. concurred that the appeal should be dismissed for the reasons given by Tysoe J.A.

I turn first to the consideration of the interpretation and application of the status quo agreement and for that purpose I use the letter of Mr. Cour, the chairman of the Joint Board, which was addressed to the presidents of both the appellant union and the respondent union and which was dated June 10 and 11, 1965, as that letter has been agreed upon between the parties as being a proper interpretation of the status quo agreement and as constituting a con-

[Page 768] tract between the appellant and the respondent union. I repeat a portion thereof:

My understanding of your status quo statement is that work will proceed in accordance with the contractor’s assignment and that neither [here naming both Unions] will process cases involving metal studs including floor and ceiling runners to receive dry wall or cases involving ceiling systems before the National Joint Board, local boards, or the National Labour Relations Board while your respective committees are considering these jurisdictional differences and attempting to resolve them.

The dispute was resolved in so far as ceilings are concerned but no decision so far as metal studs and dry walls are concerned has yet been arrived at by this committee and the parties agree that whatever the status quo agreement provides is still in effect. The circumstances under which this status quo agreement was made must be considered in the interpretation of it. As I have pointed out, the National Joint Board had been flooded, and indeed clogged, by a great mass of job disputes, that is, dispute by one union of the granting of work under a contract to another union. I have reached the firm conclusion that such situation alone was intended to be dealt with in the status quo agreement so that this series of protests as to the awarding of work under a contract to one union or to the other had to be held in abeyance until a general policy could be evolved. I point out that this is not the question which is in dispute between the appellant and respondent unions but rather whether the respondents have breached the provisions of the main agreement contained in the Blue Book and the Green Book and also the constitution of the Building and Construction Trades Department AFL-CIO. The latter document was produced at trial as ex. 38 and has been referred to throughout the litigation as the “Yellow Book”. For my purpose, it is necessary to quote only portions of art. II, art. X, and art. XI, as follows:

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ARTICLE II

Objects and Principles

The objects and principles of this body are:

To secure the adjustment of trade and jurisdictional disputes in the building and construction trades industry along practical lines as they may arise from time to time; and such decisions to be final and binding on all affiliated National and International Unions and their affiliated Local Unions.