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United Ass'n of Journeymen and Apprentices of Plumbing and Pipefitting Industry of United States and Canada, and Local No. 741 v. Marchese

Supreme Court of Arizona

October 23, 1956

UNITED ASSOCIATION OF JOURNEYMEN MEN AND APPRENTICES OF the PLUMBING AND PIPEFITTING INDUSTRY OF the UNITED STATES AND CANADA, LOCAL NO. 469, AND LOCAL NO. 741; Ray Sanders; Frank Profiri; Jack Underwood; Associated Plumbing Contractors of Arizona, a non-profit corporation; Joe Stertz, Appellants,
Louis J. MARCHESE, d/b/a O. K. Plumbing and Supply Co.; Howard C. Johnson, d/b/a Johnson Plumbing and Heating Co.; W. C. Kiesel, d/b/a Martin and Kiesel Plumbing; Maurice F. Walker, d/b/a Walker Plumbing and Heating Co.; Wilmer Robertson, d/b/a Robertson & Son Plumbing; Arizona Plumbing & Heating Company, Inc., a corporation; G. M. Flood, d/b/a Flood Plumbing and Heating; John Armer Company, Plumbing and Heating, a corporation; Whit Biship, d/b/a Biship Plumbing and Heating; G. M. Maupin Plumbing and Heating Co., Inc., a corporation; Sam McCullouch, d/b/a McCullouch Plumbing; and Eugene Hickey, d/b/a Hickey's Plumbing & Heating, Appellees, and Air Conditioning, Refrigeration and Sheet Metal Contractors Association of Arizona, Inc., a corporation; Climate Control Company, a corporation; Arizona York Refrigeration Company, a corporation; Harlan Diehl, d/b/a Diehl Commercial Refrigeration Company; Goettl Bros. Metal Products, Inc., a corporation; Valley Sales and Service, Inc., a corporation; Arizona Air Conditioning Company, a corporation; White Refrigeration Company, a corporation, Intervener-Appellees.

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[81 Ariz. 165] Lewis, Roca, Scoville & Beauchamp and John P. Frank Minne & Sorenson, Phoenix, for appellants.

Jennings, Strouss, Salmon & Trask and Richard G. Kleindienst, Shimmel, Hill & Cavanagh, Stahl, Murphy & Blakley, Phoenix, for appellees.


Appellants, the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada with its Local Unions[81 Ariz. 166] Nos. 469, Phoenix, and 741, Tucson, comprised substantially all of the journeymen and apprentice employees engaged in the performance of plumbing services in the State of Arizona. They entered into a collective bargaining agreement with appellant, Associated Plumbing Contractors of Arizona, which agreement governs the rates of pay, hours of employment and working conditions of substantially all plumbing operations in the building and construction business in the State. Appellees were at the time of the commencement of this action engaged in the business of contracting plumbing and pipe fitting services and commodities; intervening appellees were engaged in the business of air conditioning refrigeration, sheet metal and pipe fitting. Some of appellees were originally members of the Associated Plumbing Contractors but withdrew prior to the instigation of this action; the remaining appellees and intervening appellees entered

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into separate agreements with the unions upon the same terms and conditions as the collective bargaining agreement between Associated Plumbing Contractors and the unions. The collective bargaining agreement between the Associated Plumbing Contractors and United Association and its Locals was modified by mutual consent on or shortly prior to June 28, 1954, to, among other things, increase the rate of pay 20cents per hour and establish a benefit fund based on the rate of 5cents per hour per employee. On that day the unions advised all the appellees by written communication that the modifications were also effective as to each of them retroactive to the 20th day of June, 1954. [1]

The lower court found that a conspiracy existed between the unions and the Association of Plumbing Contractors for the purpose of wrongfully compelling the appellees and intervening appellees to modify their agreements to conform to the modified agreement entered into with the Association of Plumbing Contractors. No finding was made as to the effect of appellees' business on interstate commerce, the court apparently adopting the view that since the acts complained of were breaches or attempted breaches of contract it had jurisdiction to grant the relief sought. By way of relief the court issued pendente lite orders restraining appellants from in any manner inducing, inciting, compelling or attempting to induce, incite or compel appellees and intervening appellees to accept or recognize any amendments or additions to their collective bargaining agreements and further restraining appellants from inducing, inciting, compelling or attempting to induce, incite or compel the [81 Ariz. 167] employees of appellees and intervening appellees from working or continuing to work except in accordance with the terms and conditions of the agreements.

Appellees have moved to dismiss this appeal for the reason that appellants' assignments of error do not conform to the rules of this court, Rule 5(c), citing Ramirez v. Burrell, 77 Ariz. 1, 266 P.2d 390. It is our conclusion, however, that certain of the assignments of error, particularly those questioning the want of jurisdiction of the court below are sufficient when examined in conjunction with appellants' propositions of law. In re Balke's Estate, 68 Ariz. 373, 206 P.2d 732. Accordingly, the motion to dismiss is denied.

The controlling question which disposes of this appeal is whether the Superior Court of Maricopa County, Arizona, has jurisdiction to issue an injunction restraining the unions from attempted unilateral modifications of collective bargaining agreements under the particular circumstances of this case as above set forth and as hereafter supplemented. We think the Superior Court did not have such jurisdiction.

The construction industry is an 'industry affecting interstate commerce', National Labor Relations Board v. Denver Building & Construction Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284; National Labor Relations Board v. Reed, 9 Cir., 206 F.2d 184; Shore, for and on Behalf of N.L.R.B. v. Building & Construction Trades Council, 3 Cir., 173 F.2d 678, 8 A.L.R.2d 731; United Brotherhood of Carpenters, etc. v. Sperry, 10 Cir., 170 F.2d 863; Douglas v. International Brotherhood of Electrical Workers Union, D.C., 136 F.Supp. 68.

The interstate character of commerce is not decided simply by considering the quantitive effect of the activities of a particular employer.

'* * * Appropriate for judgment is the fact that the immediate situation is representative of many others

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throughout the country, the total incidence of which if left unchecked may well become far-reaching in its harm to commerce.' Polish Nat. Alliance of United States of North America v. National Labor Relations Board, 322 U.S. 643, 64 S.Ct. 1196, 1199, 88 L.Ed. 1509.

'The Shore Case, * * * and other authorities seem clearly to hold that what affects the building industry in any community really affects interstate commerce, even though an unfair labor practice and a stoppage of work in a particular instance may not have an immediately perceptible effect upon the flow of the whole stream of commerce. As the court said in the Shore Case, 'Many small stoppages will have such effect. " Douglas v. International[81 Ariz. 168] Brotherhood of Electrical Workers Union, supra (D.C., 136 F.Supp. 73).

This is not a case where the Federal Board has refused to accept jurisdiction upon the ground that the issue presented does not sufficiently affect the national welfare, e. g., Garmon v. San Diego Building Trades Council, 45 Cal.2d 657, 291 P.2d 1. This is a case where appellees have never sought to invoke the jurisdiction of the National Labor Relations Board and is controlled by the decisions in Garner v. Teamsters, Chauffeurs, and Helpers Local No. 776, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228; Building Trades Council v. Kinard Construction Co., 346 U.S. 933, 74 S.Ct. 373, 98 L.Ed. 423; Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546; Local Union No. 25 of International Brotherhood of Teamsters, etc. v. New York, N. H. & H. R. Co., 350 U.S. 155, 76 S.Ct. 227, 100 L.Ed. 166; see also Browning King Co. of New York v. Local 195, 34 N.J.Super. 13, 111 A.2d 415; Holman v. Industrial Stamping & Manufacturing Co., 344 Mich. 235, 74 N.W.2d 322; Garmon v. San Diego Building Trades Council, supra. It seems to us that the statements of the Supreme Court of the United States that an unfair labor practice within the meaning of the Labor Management Relations Act, 1947, 29 U.S.C.A. § 141 et seq., is within the exclusive primary jurisdiction of the National Labor Relations Board are unequivocal and do not fairly lend themselves to interpretation by other courts. For example:

* * * A State may not enjoin under its own labor statute conduct which has been made an 'unfair labor practice' under the federal statutes. Such was the holding in the Garner case (U.S) supra. The court pointed out that exclusive primary jurisdiction to pass on the union's picketing is delegated by the Taft-Hartley Act to the National Labor Relations Board. * * * ' Weber v. Anheuser-Busch, supra, 348 U.S. 475, 75 S.Ct. 485. (Italics ours.)

Every tribunal has the power to hear and determine its own jurisdiction, Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104, and the same power is not to be denied to the National Labor Relations Board.

'* * * The corporation contends that, since it denies that interstate or foreign commerce is involved and claims that a hearing would subject it to irreparable damage, rights guaranteed by the Federal Constitution will be denied unless it be held that the District Court has jurisdiction to enjoin the holding of a hearing by the Board. So to hold would, as the government insists, in effect substitute the District Court for the Board as the tribunal to hear and determine what [81 Ariz. 169] Congress declared the Board exclusively should hear and determine in the first instance. The contention is at war with the long-settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted. * * *' Myers v. Bethlehem

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Shipbuilding Corp., 303 U.S. 41, 50, 58 S.Ct. 459, 463, 82 L.Ed. 638.

'* * * The same reasoning which prohibits federal courts from intervening in such cases, except by way of review or on application of the federal board, precludes state courts from doing so. * * *' Garner v. Teamsters, Chauffeurs, ...

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