Drywall Tapers v. Nastasi & Assoc.

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.

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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

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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

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1Judge 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
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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

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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).
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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

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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).

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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.

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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

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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

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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

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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,

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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.”).

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2Article 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.
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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

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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

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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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