06-0241-cv
Drywall Tapers v. Nastasi & Assoc.



                                 UNITED STATES COURT OF APPEALS

                                          FOR THE SECOND CIRCUIT

                                             August Term 2006

Heard: February 5, 2007                               Decided: May 16, 2007)

        Docket Nos. 06-0241-cv(L),06-0242-cv(con),06-1154-cv(con)

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DRYWALL TAPERS AND POINTERS OF GREATER NEW
YORK, LOCAL UNION 1974 OF I.U.P.A.T., AFL-CIO,
     Plaintiff-Counter-Defendant-Appellee,

                                     v.

NASTASI & ASSOCIATES INC.,
     Defendant-Counterclaimant-Appellant,

CARPENTERS LOCAL 52, UNITED BROTHERHOOD
OF CARPENTERS AND JOINERS OF AMERICA,
     Proposed Intervenor-Appellant.
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Before: MESKILL, NEWMAN, and SACK, Circuit Judges.

        Appeal from the December 19, 2005, Order of the United States

District Court for the Eastern District of New York (John Gleeson,

District Judge), issuing a consent injunction allocating drywall

finishing work.               In 06-0241, the appeal of the injunction by Nastasi

& Associates, Inc., the appeal is dismissed; in 06-1154, the appeal by

Local 52 from denial of intervention, the Order is affirmed on the

ground that the District Court lacked jurisdiction after the filing of

a notice of appeal; in 06-0242, the appeal of the injunction by Local

52, the case is remanded.

                                           Jeffrey S. Dubin, Huntington, N.Y., for
                                             Defendant-Counterclaimant-Appellant Nastasi
                                             & Associates, Inc.
                            John H. Byington III, Meyer, Suozzi, English
                              & Klein, P.C., Melville, N.Y., for Proposed
                              Intervenor-Appellant Carpenters Local 52.

                            Daniel   E.  Clifton,   Lewis,   Clifton   &
                              Nikolaidis, New York, N.Y., for Plaintiff-
                              Counter-Defendant-Appellee   Local   Union
                              1974.


JON O. NEWMAN, Circuit Judge.

     These three consolidated appeals, one by a New York construction

contractor and two by a New York labor union local, primarily present

issues concerning the rights of a consenting party and a non-party to

appeal.    Both the contractor, Nastasi & Associates Inc. (“Nastasi”),

and the local, Carpenters Local 52, United Brotherhood of Carpenters

and Joiners of America (“Local 52”), are attempting to appeal the

December 19, 2005, Order for an injunction issued by the United States

District Court for the Eastern District of New York (John Gleeson,

District     Judge).   The    injunction     requires   several   New    York

contractors, including Nastasi, to contract drywall finishing work to

the Appellee, Drywall Tapers and Pointers of Greater New York, Local

Union 1974 of I.U.P.A.T., AFL-CIO (“Local 1974”). Local 52, which was

not a party to the proceeding in the District Court, also appeals the

District Court’s February 13, 2006, denial of its motion to intervene.

We dismiss Nastasi’s appeal, affirm on Local 52's appeal from the

denial of intervention, and remand on Local 52's appeal from the

injunction.

                                Background

     Prior    litigation.    This   appeal   is   another   chapter     in   a


                                    -2-
jurisdictional dispute among New York City construction unions that

has been going on for more than 25 years.            At the core of this saga

was a dispute between two labor unions representing drywall finishing

workers--Plaintiff-Appellee Local 1974 and Local 530 of the Operative

Plasterers’ and Cement Masons’ International Association, AFL-CIO

(“Local 530”), which is not involved in the current litigation.           Both

unions are members of the Building & Construction Trades Council of

Greater New York (“Trades Council”).         More than a century ago, the

Trades Council and the Building Trades Employers’ Association (an

organization of construction contractors associations) (“BTEA”), have

formed more than a century ago the “New York Plan for the Settlement

of Jurisdictional Disputes” (“New York Plan”). Through the decisions

of the official organs of the New York Plan (published in the “Green

Book”), specific types of construction work in New York City were

assigned to specific unions, and the member employers and unions must

abide by those work assignments.

     Local   530   has   tried   for    years   to    violate   Local   1974's

jurisdiction in New York by assuming drywall finishing jobs that

rightfully belonged to Local 1974.           These attempts have led to a

series of court decisions generally upholding Local 1974's position.

See Drywall Tapers and Pointers of Greater New York, Local 1974 v.

Local 530 of Operative Plasterers and Cement Masons International

Association, 954 F.2d 69 (2d Cir. 1992); Drywall Tapers and Pointers

of Greater New York, Local 1974 v. Local 530 of the Operative

Plasterers’ and Cement Masons’ International Association, 2002 WL


                                       -3-
31641597 (E.D.N.Y. Nov. 19, 2002); Drywall Tapers and Pointers of

Greater New York, Local 1974 v. Local 530 of the Operative Plasterers’

and Cement Masons’ International Association, 2005 WL 638006 (E.D.N.Y.

Mar. 17, 2005) (ordering the March 17, 2005, injunction, which

enjoined Local 530 from performing drywall finishing in New York City

and, in effect, allocated drywall finishing work in New York City to

Local 1974; this order was subsequently incorporated in the New York

Plan’s Green Book).

     Pending litigation. A week after the March 17, 2005, decision,

the United Brotherhood of Carpenters and Joiners of America--an

organization not previously involved in the litigation--chartered a

new local union, Local 52, one of the current appellants, to represent

drywall finishing workers in the State of New York.    Local 52 was not

affiliated with the Trades Council, and is therefore not bound by the

New York Plan.     Shortly after Local 52 was chartered, some New York

contractors who had previously employed Local 530 workers for drywall

finishing jobs entered into collective bargaining agreements with

Local 52.1

     1
         Judge Gleeson has more than once expressed his impression that

Local 52 was created for the sole purpose of taking Local 530’s place

in the drywall finishing competition with Local 1974, once Local 530

was finally defeated in court:



     [E]ight days after the [March 17, 2005,] injunction was

     issued, a new drywall finishing local popped up, giving the

                                   -4-
     Local 1974 filed a complaint with the District Court against four

construction managers and their respective drywall subcontractors, who

have employed Local 52 members to do drywall finishing work in four

Manhattan   construction   sites.     Local   1974’s   complaint   alleged

violation of the District Court’s March 17, 2005, injunction by

failing to employ Local 1974 members, and sought enforcement of the

New York Plan (to which the Defendants were allegedly parties),

pursuant to section 301 of the Labor Management Relations Act. Local

52, not being a party to the New York Plan and thus not bound by the

2005 injunction, was not named as a defendant in the complaint.

     Local 1974’s suit against the contractors did not reach trial.

After the District Court denied the Defendants’ motions to dismiss and

indicated its intent to enter a preliminary injunction enjoining the

Defendants from further violating the March 17, 2005, injunction

(subject to confirmation that the Defendants are bound by the New York

Plan), the parties reached an agreement that put an end to the

litigation (“Settlement Agreement”).      In December 2005, the District


     impression that Local 530 may have been reincarnated. Work

     that was required by the March 17, 2005 injunction to be

     assigned to Local 1974 was promptly assigned to the new

     local instead.



Drywall Tapers and Pointers of Greater New York, Local 1974 v. Bovis

Lend Lease Interiors, Inc., No. 05-CV-2746, slip op. At 3-4 (E.D.N.Y.

Dec. 19, 2005).

                                    -5-
Court issued an amended Consent Injunction, (“Consent Injunction”)

adopting the parties’ Settlement Agreement.         Nastasi, one of the

drywall contractor-defendants, appeals the Consent Injunction in No.

06-0241, notwithstanding its agreement to the entry of the Consent

Injunction, and Local 52 appeals the Consent Injunction in No. 06-

0242, notwithstanding its not being a party to the proceeding.

     Local 52’s attempted intervention. While Local 1974’s action was

still pending, Local 52--which is repeatedly mentioned in Local 1974’s

complaint but, as noted, was not a party to the proceeding (nor to the

New York Plan)--instituted several proceedings with the National Labor

Relations Board (“NLRB”), stressing its legitimate role in the New

York drywall industry and attacking Local 1974 for the remedies it

sought   in   this   action.   Thus,   Local   52    initiated   several

representation proceedings with the NLRB, under which majorities of

workers employed by some of the defendants have elected Local 52 as

their collective bargaining representative. Local 52 also filed with

the NLRB a series of formal charges against Local 1974 and the

defendant-employers who complied with the preliminary injunction,

alleging unfair labor practices in violation of sections 8(b)(4)(A)

and 8(e) of the National Labor Relations Act.

     On November 4, 2005, while the parties to Local 1974’s action

were still in negotiations and while Local 52’s proceedings with the

NLRB were still pending, Local 52 filed a motion with the District

Court to intervene as of right in Local 1974’s action, pursuant to

Fed. R. Civ. P. 24(a)(2).


                                 -6-
     Local 52’s motion to intervene was scheduled for oral argument on

January   20,   2006.   In   the    meantime    the   parties   reached   their

Settlement Agreement, and on December 19, 2005, the District Court

entered the Consent Injunction.        Local 52 filed its notice of appeal

from the Consent Injunction on January 13, 2005, before its motion to

intervene was heard and disposed of.

     The District Court denied Local 52’s motion to intervene for lack

of jurisdiction because Local 52 had filed a notice of appeal,

contesting the Consent Injunction.          Local 52 appeals the denial of

intervention in No. 06-1154.

                                   Discussion

I. Nastasi’s Appeal

     Local 1974 challenges Nastasi’s right to appeal the Consent

Injunction on the ground that Nastasi was a party to the Settlement

Agreement that was adopted by the District Court in the Consent

Injunction. The Consent Injunction incorporates the exact language of

the Settlement Agreement.      The Settlement Agreement further states

that it “constitutes a final settlement of all claims between Local

1974 and Defendant [Nastasi] arising from or relating to the Federal

Action,” and that the parties “have executed this Settlement Agreement

knowingly, voluntarily and without duress.”

     An appeal from a consent injunction is “generally unavailable”

since the parties are held to have waived any objection to issues

included in the injunction. See New York ex rel. Vacco v. Operation

Rescue National, 80 F.3d 64, 69 (2d Cir. 1996); United States v.


                                      -7-
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and

Helpers of America, 172 F.3d 217, 222 (2d Cir. 1999); Kelly's Trust v.

Commissioner of Internal Revenue, 168 F.2d 198, 199 (2d Cir. 1948)

(“[A] consent judgment by its nature precludes an appeal.”).

     Nastasi offers three arguments to avoid this well settled rule.

First, it contends that its consent to the Settlement Agreement

resulting in the Consent Injunction was not voluntary.   As its brief

asserts:

     The Injunction was consensual only in the sense that it was
     clear to all of the defendants that if they did not
     negotiate a consent injunction, the District Court intended
     to enter a more onerous injunction against Nastasi and all
     of the other defendants.

The argument is entirely without merit.    Most disputes are settled

because at least one of the parties perceives at least a risk of a

more disadvantageous outcome if the litigation proceeds.       Nastasi

makes no claim that its consent to the Settlement Agreement was

obtained under duress or any other circumstance that might avoid the

consequences of its voluntary action.

     Second, Nastasi contends that the Settlement Agreement allows for

an appeal. It relies on Article 2 of the Settlement Agreement to claim

that it reserved its right to appeal the Consent Injunction:

     Notwithstanding any provision herein to the contrary,
     neither Party waives its rights under applicable law to seek
     the vacation or modification of the Order.

Nastasi claims that its appeal seeks to vacate the Consent Injunction,

as permitted by Article 2. Local 1974 responds that Article 2 refers

to vacation or modification by the District Court, in case of changing


                                 -8-
circumstances.

     On this issue of contract interpretation, Local 1974 is entirely

correct.     The    traditional   inclusion    of    language     that    permits

modification of an injunction in the event of changed circumstances

cannot be transformed into an appellate right to undo the agreement

that has just been consummated.

     Third, and of arguably more substance, Nastasi relies on one of

the few exceptions to the rule prohibiting appeal by a party to a

consent    decree--the    District   Court’s       lack    of   subject    matter

jurisdiction. See, e.g., Operation Rescue National, 80 F.3d at 69.

Nastasi contends that the anti-injunction prohibitions in the Norris-

LaGuardia Act (“NLA”), 29 U.S.C. §§ 101, 104, preclude the District

Court’s jurisdiction.     Local 1974 responds that the NLA limits only a

district court’s remedial powers, rather than its subject matter

jurisdiction.

     Local   1974    is   correct.     As     we    have    previously     ruled,

“Norris-LaGuardia is a limit on remedial authority, not subject matter

jurisdiction.”     Emery Air Freight Corp. v. International Brotherhood

of Teamsters, Local 295, 185 F.3d 85, 89 (2d Cir. 1999) (citing Avco

Corp. v. Aero Lodge No. 735, 390 U.S. 577, 560-61 (1968)).                See also

Aeronautical Industrial District Lodge 91 v. United Technologies

Corp., 230 F.3d 569, 575, 579-82 (2d Cir. 2000) (discussing NLA

limitations on a specific injunction as a matter distinct from the

district court’s subject matter jurisdiction).

     Although Nastasi cites our decision in In re Petrusch, 667 F.2d


                                     -9-
297, 298 (2d Cir. 1981), and several other decisions in which courts

have referred to the NLA anti-injunction prohibitions as pertaining to

the district court’s “jurisdiction,” see, e.g., Triangle Construction

and Maintenance Corp. v. Our Virgin Islands Labor Union, 425 F.3d 938,

942, 947 (11th Cir. 2005); Ozark Air Lines, Inc. v. National Mediation

Board, 797 F.2d 557, 562 (8th Cir. 1986), the Supreme Court has

recently cautioned that use of the term “jurisdictional,” even in the

High Court’s own opinions, does not always refer to the technical

issue of a court’s subject matter jurisdiction, see Eberhart v. United

States, 546 U.S. 12, 126 S. Ct. 403, 406-07 (2005).    Avco and Emery

Air Freight illustrate that observation. See also Smith's Management

Corp. v. International Brotherhood of Electrical Workers, Local Union

No. 357, 737 F.2d 788, 792 (9th Cir. 1984); National Maritime Union v.

Aquaslide 'N' Dive Corp., 737 F.2d 1395, 1398 (5th Cir. 1984).

     Since Nastasi cannot appeal the Order granting the Consent

Injunction, its appeal must be dismissed.

II. Local 52’s Appeals

     Local 52 has filed two appeals, one from the Order issuing the

Consent Injunction and one from the District Court’s denial of its

motion to intervene.     Because of the relationship between these

appeals, we discuss them together.

     Local 52 filed its Rule 24(a)(2) motion to intervene about six

weeks before the District Court entered the Consent Injunction.   The

motion was initially calendared for argument on December 16, 2005.

The Settlement Agreement was finalized on December 14, 2005.       On


                                -10-
December 16, 2005, the District Court approved the consent agreement

of the then-existing parties and issued the Order for the Consent

Injunction, which was insignificantly amended three days later.                The

argument on Local 52's intervention motion was deferred for several

weeks. After entry of the Consent Injunction, Local 52 filed a notice

of appeal from the injunction Order.           The District Court then denied

the intervention motion on the ground that Local 52's notice of appeal

had divested the Court of jurisdiction.           Local 52 views itself as the

victim of an appellate “Catch 22”: it promptly filed an appeal from

the injunction Order so that, if its intervention motion was granted,

it would not be considered to have appealed beyond the applicable 30-

day time limit, see Fed. R. App. P. 4(a)(1)(A), but its notice of

appeal   deprived     the    District   Court    of   jurisdiction   to   permit

intervention.

     Local    52    itself   appears    to     have   contributed   to   its   own

predicament.       Although we make no ruling on whether any delay in

submitting its motion to intervene will justify denial of that motion,

it appears that a more expeditious filing of its motion might well

have alerted the District Court to the need to act on that motion

before approving the consent agreement.               In any event, Local 52's

predicament was at least in part precipitated by the action of the

District Court in adjudicating the litigation-ending motion to enter

the consent judgment while Local 52's motion for intervention remained

pending.     We conclude that this was ill advised.          Although there is

authority for granting a motion to intervene in the Court of Appeals,


                                        -11-
see Bates v. Jones, 127 F.3d 870, 873-74 (9th Cir. 1997); Hurd v.

Illinois Bell Telephone Co., 234 F.2d 942, 944 (7th Cir. 1956), it

will normally be the better practice for a district court to rule on

a pending motion to intervene before ruling on the merits of pending

litigation.

     What we can or should do at this point to rectify the situation

is not entirely clear.     The District Court did not err in denying

Local 52's intervention motion once the notice of appeal of the

Court’s injunction Order divested the Court of jurisdiction to affect

that Order. See Griggs v. Provident Consumer Discount Co., 459 U.S.

56, 58 (1982); Roe v. Town of Highland, 909 F.2d 1097, 1100 (7th Cir.

1990); Nicol v. Gulf Fleet Supply Vessels, Inc., 743 F.2d 298, 299

(5th Cir. 1984); see also United States v. Katsougrakis, 715 F.2d 769,

776 (2d Cir. 1983); contra Halderman v. Pennhurst State School &

Hospital, 612 F.2d 131, 134 (3d Cir. 1979) (in banc).   Therefore, on

Local 52's appeal from denial of intervention, we are obliged to

affirm.   We do so, however, only to agree with the District Court’s

jurisdictional ruling, without intimating any view as to the merits of

the intervention motion.

     Turning next to Local 52's purported appeal from the injunction

Order, we encounter the threshold obstacle that Local 52 is not a

party, and normally a non-party lacks standing to appeal. See Marino

v. Ortiz, 484 U.S. 301, 304 (1988) (“The rule that only parties to a

lawsuit, or those that properly become parties, may appeal an adverse

judgment, is well settled.”).


                                 -12-
     Local 52 seeks to avoid this rule by contending that the Consent

Injunction did not constitute a final resolution of the case.               It

views the injunction as an interlocutory injunction, an appeal from

which does not divest the District Court of its jurisdiction over

unrelated matters. See New York State NOW v. Terry, 886 F.2d 1339,

1350 (2d Cir. 1989).      First, Local 52 points out, the action has not

yet been dismissed,2 and the Consent Injunction should therefore be

treated as an interlocutory injunction.           We disagree.    The Consent

Injunction disposed of the merits of the litigation; the remaining

filing of a formal stipulation of dismissal was a ministerial act,

which did not destroy the finality of the Consent Injunction. Cf.

Motorola Credit Corp. v. Uzan, 388 F.3d 39, 53-54 (2d Cir. 2004).

     Second, Local 52 argues that the litigation remains pending

because    Article   2   of   the   Settlement   Agreement   contemplates   the

possibility of returning to court to seek modification. That argument

also fails because the District Court’s authority to modify the


     2
         Article 10 of the Settlement Agreement reads:



             This Settlement Agreement constitutes a final
             settlement of all claims between Local 1974 and
             Defendant [Nastasi] arising from or relating to
             the Federal Action. Within ten (10) business days
             after execution of this Settlement Agreement or
             the Court’s entry of the Order, whichever is
             later, the Parties shall execute a stipulation of
             dismissal... and shall file such stipulation with
             the Clerk’s office of the Federal District Court
             for the Eastern District of New York, dismissing
             the Federal Action with prejudice.


                                       -13-
Consent Injunction does not deprive it of finality.

     Thus,   Local   52's   status   as     a   non-party   prevents    us    from

adjudicating the merits of its challenge to the Consent Injunction.

However, we conclude that its non-party status does not prevent us

from acting to cut through this appellate Catch-22.             We believe it is

appropriate to remand Local 52's purported appeal from the Consent

Injunction to the District Court to enable that Court, with its

jurisdiction   restored,    to   adjudicate      the   merits    of   Local   52's

intervention motion. See Marino, 484 U.S. at 304 (“We think the better

practice is for such a nonparty to seek intervention for purposes of

appeal; denials of such motions are, of course, appealable.”); Roe,

909 F.2d at 1100 (“Although the filing of the notice [of appeal] would

deprive the district court of power to act on the motion to intervene,

the cause may be remanded for that purpose.”) (quotation marks

omitted); 20 Moore’s Federal Practice § 303.10[1][b] at 303-19 (3d ed.

2006).   If that motion is denied, Local 52 may appeal such a denial.

If that motion is granted, Local 52, as a party, may then seek any

relief to which it may be entitled, including a renewal of its

purported appeal of the injunction Order.              Since Local 52 filed a

notice of appeal within 30 days of the Order issuing the Consent

Injunction, albeit at a time when it was not a party, its status as a

party, if intervention is granted, should permit it to renew its

appeal. Cf. Fed. R. App. P. 4(a)(2) (premature notice of appeal, filed

before entry of judgment, treated as filed on date of entry); see also

United Airlines, Inc. v. McDonald, 432 U.S. 385, 396 (1977) (noting


                                     -14-
that post-judgment motion to intervene was filed within time when

existing parties could have appealed).    To avoid the possibility of a

delay in renewing such an appeal, we add to our remand the proviso

that in the event that Local 52 becomes a party, it must renew its

appeal within 30 days of the date intervention is permitted or the

date the District Court denies any request Local 52 might make for

modification of the Consent Injunction Order, whichever is later.

                             Conclusion

     Nastasi’s appeal, No. 06-0241, is dismissed; on Local 52's appeal

in No. 06-1154, the District Court’s denial of Local 52's motion to

intervene is affirmed solely on the ground that the District Court

lacked jurisdiction; on Local 52's appeal in No. 06-0242, the case is

remanded for further proceedings consistent with this opinion.




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