WALLACE v. 240

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District Court of Appeal, Third District, California.

Chester WALLACE, doing business under the firm name and style of Wallace Roofing Co., Plaintiff and Respondent, v. CARPENTERS LOCAL UNION NO. 1040 OF UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA; and North Coast Counties District Council of Carpenters, Defendants and Appellants. Roofers, Damp and Waterproof Workers Local Union No. 240 of United Slate, Tile and Composition Workers Association, Defendants and Respondents.

Civ. 8007.

Decided: May 27, 1955

Todd & Todd, San Francisco, for defendants and appellants. Falk & Falk, Eureka, for plaintiff-respondent. P. H. McCarthy, Jr., F. Nason O'Hara, Herbert S. Johnson, San Francisco, for defendants and respondents.

This matter is presently before us upon motion by appellants for an order of this court dismissing the action and dissolving a temporary injunction heretofore issued by the trial court in favor of plaintiff Wallace, a roofing contractor, and directed to both appellant and respondent labor organizations enjoining them from ‘engaging in any work stoppage or from threatening any work stoppage’ by reason of a dispute between them concerning the question of union jurisdiction. Appellants took an appeal from the judgment granting a temporary injunction, which appeal is now pending. There is no motion to dismiss the appeal, and movant announced at argument that no dismissal was desired. This court is asked only to dismiss the action and dissolve the injunction ‘and for such other and further order as to the court may seem meet and proper in the premises.’

This action was commenced by plaintiff and respondent Wallace, a contractor doing business as Wallace Roofing Co. It is alleged that he entered into a collective bargaining agreement for the period here involved with Carpenters Local Union No. 1040 of the United Brotherhood of Carpenters and Joiners of America, hereinafter referred to as the Carpenters Union, which included the branch of carpentry known as ‘roofing.’ Subsequently plaintiff entered into a contract with Local Union 240 of the United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association, hereinafter referred to as the Roofers Union, which also covered the division of the craft of carpentry known as ‘roofing.’ Both unions are or were at the time the action was commenced members of the National Joint Board for Settlement of Jurisdictional Disputes established within the Building and Construction Trades Department of the American Federation of Labor, which board handles disputes concerning claims of jurisdiction by member unions. Plaintiff alleged that a dispute arose over which of the above unions had jurisdiction over the ‘roofing’ work carried on by plaintiff, which was followed by certain work stoppage by the Carpenters Union and threats of other stoppage. Plaintiff sought and was granted a temporary injunction restraining appellant Carpenters Union from engaging in any work stoppage arising out of the assignment of work by plaintiff as long as he employed members of unions affiliated with the American Federation of Labor, and also ordering that any questions concerning disputes over jurisdiction be submitted to the National Joint Board for settlement.

Appellants' motion to dismiss the action and dissolve the temporary injunction is based upon affidavits submitted by appellants wherein it is stated that respondent Roofers Union is no longer in existence. It is claimed by appellants that this nullifies the entire cause of action since there can be no existing dispute between appellants and a union which no longer exists; that there is no longer any need for an injunction and nothing to submit to the National Joint Board for settlement.

There are no counter-affidavits on file by the respondent Roofers Union and nothing before us to indicate that appellants' contention regarding the present nonexistence of respondent Roofers Union is not correct. However, the function and the jurisdiction of this court in the present state of the record is either to decide the appeal or dismiss it, but not to dismiss the action or dissolve the injunction.

The motion is denied.

FINLEY, Justice pro tem.

VAN DYKE, P. J., and SCHOTTKY, J., concur.