Local 19 v. Herre Bros. Inc.

Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit

12-30-1999

Local 19 v. Herre Bros. Inc.
Precedential or Non-Precedential:

Docket 97-7450

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Filed December 30, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-7450

SHEET METAL WORKERS' INTERNATIONAL
ASSOCIATION LOCAL 19

v.

HERRE BROS., INC.
Appellant

On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civil Action No. 95-cv-02131
(Honorable Sylvia H. Rambo)

Argued April 26, 1999

Before: SCIRICA, ROTH and MCKAY,*
Circuit Judges

(Opinion filed December 30, 1999)

_________________________________________________________________

* Honorable Monroe G. McKay, Circuit Judge, United States Court of
Appeals for the Tenth Circuit, sitting by designation.
 Ronald M. Katzman, Esquire
(Argued)
Steven E. Grubb, Esquire
Goldberg, Katzman & Shipman, P.C.
320 Market Street
Strawberry Square
P. O. Box 1268
Harrisburg, PA 17108

Thomas R. Davies, Esquire (Argued)
Harmon & Davies, P.C.
2306 Columbia Avenue
Lancaster, PA 17603

Attorneys for Appellant

Bruce E. Endy, Esquire (Argued)
Spear, Wilderman, Borish, Endy,
Spear and Runckel
230 South Broad Street -
Suite 1400
Philadelphia, PA 19102

Attorney for Appellee

OPINION OF THE COURT

MCKAY, Circuit Judge.

This appeal arises from a dispute between Plaintiff Sheet
Metal Workers' International Association Local 19 [Union],
Defendant Herre Bros., Inc., and a third party, Sheet Metal
Contractors Association of Central Pennsylvania[SMCA]
concerning the enforcement of a collective bargaining
agreement. Herre Bros. attempted to revoke its bargaining
rights in the SMCA with the intent that it would not be
bound by a later-negotiated collective bargaining agreement
between the SMCA and the Union. The Union sued Herre
Bros., taking the position that Herre Bros. was bound to
the Union's 1995 agreement with the SMCA. The district
court granted summary judgment to the Union, ruling that
Herre Bros. was bound to the 1995 collective bargaining
agreement, and ordered specific performance of that

2
agreement after a trial on damages. Herre Bros. appeals the
district court's rulings.

I

Herre Bros. is a mechanical and electrical contractor in
Enola, Pennsylvania, engaged in the construction of sheet
metal, piping, plumbing, heating, and air conditioning.
Beginning in at least 1992, Herre Bros. joined the SMCA, a
multiemployer bargaining association comprised of sheet
metal and air conditioning contractors. The parties agree
that as a result of that membership Herre Bros. was a party
to the collective bargaining agreement between the Union
and the SMCA which was effective from June 1, 1992,
through May 31, 1995. In February 1995, Herre Bros.
notified the SMCA that it no longer authorized the
association to bargain on its behalf. Subsequently, the
SMCA sent, and the Union received, notice that the
association no longer had the bargaining authorization of
Herre Bros. This notification was signed by Anthony J.
Forlizzi, who was both president of the SMCA and vice-
president of Herre Bros. In the meantime, the 1992
collective bargaining agreement was nearing expiration and
the parties set about negotiating a new agreement.

The SMCA and the Union entered into a new agreement
effective June 1, 1995, to May 31, 1998, but Herre Bros.
and the Union failed to negotiate any agreement. Near the
end of the bargaining between Herre Bros. and the Union,
in August and September 1995, the Union allegedly
discovered that Herre Bros. was still an active member of
the SMCA despite its revocation of bargaining rights. The
Union took the position that Herre Bros. was bound by the
1995 agreement because of Herre Bros.' continuing
membership in the SMCA. Herre Bros. then withdrew its
membership from the SMCA and refused to be bound by
the 1995 agreement. For its part, the SMCA refused to
either provide the Union with a copy of its by-laws and
constitution or convene a Joint Adjustment Board to hear
a grievance against Herre Bros. In response, counsel for the
Union indicated that the Union would file unfair labor
practice charges with the National Labor Relations Board.

3
In December 1995, the Union filed a complaint pursuant
to 29 U.S.C. S 195 against Herre Bros. claiming that it had
breached the 1995 collective bargaining agreement with the
Union by failing to recognize that agreement and adhere to
its terms.1 Meanwhile, a panel of the National Joint
Adjustment Board unanimously decided on March 21,
1996, that Herre Bros. was bound to the existing collective
bargaining agreement effective from June 1, 1995, through
May 31, 1998, because Herre Bros. "did not follow the
procedures required to properly withdraw their bargaining
rights[ ] and Association membership." 2 App., Vol. II at
236A.

On cross-motions for summary judgment on the issue of
liability, the district court granted partial summary
judgment to the Union in an order filed September 16,
1996. See id. at 256A. The court determined that Herre
Bros. had not effectively withdrawn from the SMCA and
therefore was bound to the terms of the new agreement.
The court, however, deferred entry of judgment until the
conclusion of the case. It also denied Herre Bros.' motion
for reconsideration of the summary judgment decision. On
November 18, 1996, the district court conducted a bench
trial on the issue of damages. On August 27, 1997, the
court entered an Order and Memorandum that disposed of
some of the damages issues in the case and granted
specific performance of the 1995 agreement but which
again deferred entry of judgment until the conclusion of the
case. See id., Vol. I at 12A, 14A.
_________________________________________________________________

1. The Union also named the SMCA in the suit, claiming that it breached
the 1995 agreement by refusing to convene a grievance panel to hear the
Union's dispute. On July 8, 1996, the Union voluntarily dismissed the
SMCA from its complaint.

2. In its amended complaint in federal court, the Union argued that
Herre Bros. was bound by the Adjustment Board's decision that Herre
Bros. was a party to the contract because Herre Bros. had failed to move
to vacate the award within the time permitted by statute in
Pennsylvania. We do not address the Union's argument on appeal that
Herre Bros. should have filed a motion to vacate the decision of the
National Adjustment Board before filing suit in federal court because it
is not necessary to our resolution of the dispute and because the Union
did not raise it before the district court in this case.

4
II

As a threshold issue, we must determine whether the
district court's order, or a portion thereof, is appealable or
whether the appeal should be dismissed for lack of
jurisdiction. The August 27, 1997 Order from which the
appeal is taken granted judgment to the Union in the
amount of $325,203.98; required Herre Bros. to provide the
Union with an accounting of all hours worked by nonunion
workers between September 27, 1996, and the date of the
order; allowed the Union to file a supplemental brief
requesting damages to union funds resulting from Herre
Bros.' failure to utilize union workers after September 27,
1996, and allowed Herre Bros. to file a reply brief thereto;
directed Herre Bros. to specifically perform the 1995
contract between the Union and the SMCA until it expired
in 1998; and directed the clerk of the court "to defer entry
of judgment until the conclusion of the case." Id. at 12A-
13A. Herre Bros. filed its notice of appeal from this order on
September 14, 1997.

In a letter dated September 16, 1997, this court notified
the parties that the appeal would be submitted for possible
dismissal due to a jurisdictional defect, namely, that the
order filed August 27, 1997, did not appear to befinal
within the meaning of 28 U.S.C. S 1291. In response, both
parties contend that the August 27 Order is appealable
because the portion of it which directs specific performance
of the 1995 agreement is an appealable interlocutory order.
It seems clear and is beyond dispute that the August 27
Order is not a final judgment in that it does not dispose of
all of the damages issues in the case and because it defers
entry of judgment until a later undetermined time.
Nonetheless, we believe the parties are correct in arguing
that the specific performance portion of the August 27
Order is appealable under 28 U.S.C. S 1292(a)(1) based on
the following analysis.

In its Memorandum accompanying the August 27 Order,
the district court made findings of fact and conclusions of
law concerning damages. The court found that the Union
sought various money damages, "a declaratory judgment
that Herre [Bros.] [was] bound by the 1995 agreement," and
"specific performance requiring Herre [Bros.] to honor the

5
1995 agreement." Id. at 18A-19A. In analyzing monetary
damages, the court stated that the Union "[was] entitled to"
damages for work performed by union members and
nonunion members after June 1, 1995, id. at 19A, 32A,
and also to liquidated damages. See id. at 31A, 33A. In its
discussion of declaratory relief, the court explained that
because it had previously determined that Herre Bros. was
bound by the 1995 agreement "the clerk of [the] court
[would] enter judgment in favor of [the Union] on the issue
of liability" at the conclusion of the case. Id. at 31A. The
court then discussed the Union's demand of specific
performance which would require Herre Bros. "to hire all of
its workers from the union hiring hall." Id. at 32A. The
district court granted this relief, concluding that Herre
Bros. "[would] be directed to specifically perform the 1995
contract for the remainder of its term." Id. at 33A. In
contrast to the court's language in the Memorandum
determining that the Union was entitled to certain damages
and a declaratory judgment, the court clearly stated that it
was directing Herre Bros. to specifically perform the 1995
agreement until its expiration in May 1998. See id. at 32A-
33A. Further, while the declaratory relief portion of the
Memorandum clearly deferred entry of judgment until the
conclusion of the case, see id. at 31A, the paragraph
granting specific performance contained no such limitation.
See id. at 32A. These differences in the court's use of
language leads us to conclude that the court intended the
order of specific performance to be an injunctive order that
was effective immediately. In addition, we believe that the
specific enforcement of the 1995 agreement falls under the
definition of an injunctive order because it was"directed to
a party, enforceable by contempt, and designed to accord or
protect some or all of the substantive relief sought" by that
party. Cohen v. Board of Trustees, 867 F.2d 1455, 1465 n.9
(3d Cir. 1989) (citations and quotation marks omitted); see
also Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 154
(3d Cir. 1999) (characterizing the denial of specific
performance as a preliminary injunction).

Our treatment of the specific performance portion of the
August 27 Order as an appealable injunctive order also is
supported by a subsequent order filed by the district court.
In this later order, filed September 19, 1997, the district

6
court stayed pending appeal the portion of the August 27
Order that directed specific performance.3 See Attach. to
Appellant's Br. (September 19, 1997 Order at 2). The
court's decision to grant a stay pursuant to Fed. R. Civ. P.
62(c) reveals that it had intended the injunctive order
compelling specific performance to be enforceable
immediately upon filing the August 27 Order. See Cohen,
867 F.2d at 1466.

For these reasons, we conclude that the August 27, 1997
Order is an appealable interlocutory order under 28 U.S.C.
S 1292(a)(1), see id. at 1468 (holding that an order of
specific performance of a contract has been regarded as a
classic form of equitable relief and falls within S 1292(a)(1)),
and we have jurisdiction over the specific performance
portion of that Order.

To review this appeal, i.e., to determine whether specific
performance is merited, we need to review the question of
liability. Clearly, the court's grant of injunctive relief was
predicated on its prior summary judgment determination
that Herre Bros. was bound to the 1995 contract. See id. As
a result, and to avoid having to reexamine this issue after
entry of final judgment, we conclude that our jurisdiction
over the specific performance question necessarily requires
us to address whether the district court correctly granted
summary judgment to the Union by determining that Herre
Bros. was bound to the 1995 agreement.
_________________________________________________________________

3. The court also stayed the portion of the August 27 Order directing an
accounting and supplemental briefing on damages, and it purported to
amend the September 16, 1996 summary judgment order and the
August 27 Order by directing that judgment would be entered on
September 19, 1997. We note that the September 19, 1997 Order is
neither a final judgment nor appealable for reasons discussed in our
decision in the appeals and cross-appeals related to this case. See Sheet
Metal Workers' Internat'l Ass'n Local 19 v. Herre Bros., Inc., Nos. 97-
7552, 7553, 7554, 7555 (3d Cir., December 30, 1999).

On September 23, 1997, the court filed an order to correct clerical
errors contained in the judgment that was filed pursuant to the
September 19, 1997 Order. The substance of the September 19 and
September 23 Orders is identical.

7
III

Our resolution of this appeal turns first on whether Herre
Bros. is bound to the 1995 collective bargaining agreement
executed by the Union and the SMCA. If Herre Bros. is so
obligated, we also must determine whether the court
properly ordered specific performance of the 1995
agreement. We therefore first examine whether the district
court erred in granting partial summary judgment to the
Union by determining that Herre Bros. was bound to the
1995 collective bargaining agreement.

We review the court's partial grant of summary judgment
de novo, applying the same standards used by the district
court. See Salley v. Circuit City Stores, Inc., 160 F.3d 977,
980 (3d Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986)). We must determine whether the
record, when viewed in the light most favorable to the non-
moving party, namely, Herre Bros., shows that there are no
genuine issues of material fact and that the moving party
was entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(c); Salley, 160 F.3d at 980; Antol v. Perry, 82
F.3d 1291, 1294-95 (3d Cir. 1996).

A

At the heart of this dispute is the distinction between two
types of multiemployer bargaining relationships. 4 Under
S 9(a) of the National Labor Relations Act, 29 U.S.C.
S 159(a), a union may become the exclusive bargaining
representative of an appropriate unit of employees if a
majority of employees designate the union as the
representative. It is well established that an employer with
a S 9(a) relationship to a union has an obligation to
negotiate a successor contract with the union in good faith
and that the union enjoys a presumption of majority status.
See James Luterbach Constr. Co., 315 N.L.R.B. 976, 979
_________________________________________________________________

4. The Union claims that Herre Bros. waived this issue because it did not
raise it before the district court at the appropriate time. Because the
district court addressed the distinction between multiemployer
bargaining associations in its summary judgment order, the issue is
properly before this court on appeal.

8
(1994). Accordingly, neither an employer nor a union
governed by S 9(a) may unilaterally withdraw from the
multiemployer bargaining unit or the collective bargaining
agreement; instead, withdrawal is subject to specific
requirements. See Retail Assocs., Inc., 120 N.L.R.B. 388,
393-95 (1958).

Unlike a S 9(a) relationship, an employer member of a
multiemployer bargaining unit who has a relationship with
a union under S 8(f) of the NLRA, 29 U.S.C.S 158(f), does
not have an obligation to bargain for a successor contract.
See Luterbach, 315 N.L.R.B. at 979; Patterson-Stevens, Inc.,
316 N.L.R.B. 1278, 1285 (1995). Section 8(f) differs because
it allows employers engaged primarily in the building and
construction industry to enter into pre-hire agreements
which contain union security clauses whether or not the
union represents a majority of the employer's employees.
See 29 U.S.C. S 158(f). Because the union enjoys no
presumption of majority status, either party in aS 8(f)
relationship is free to unilaterally withdraw and"avoid any
obligation to bargain for a successor contract" upon the
expiration of the collective bargaining agreement. 5
Luterbach, 315 N.L.R.B. at 978; see also John Deklewa &
Sons, Inc., 282 N.L.R.B. 1375, 1385 & n.42 (1987) (holding
_________________________________________________________________

5. Historically, a S 8(f) agreement could be repudiated by either party at
any time for any reason. See John Deklewa & Sons, Inc., 282 N.L.R.B.
1375, 1378 (1987), enf 'd sub nom. International Ass'n of Bridge,
Structural & Ornamental Iron Workers v. NLRB, 843 F.2d 770 (3d Cir.
1988). Under pre-Deklewa case law, a S 8(f) relationship converted into
a S 9(a) relationship merely upon a showing that the signatory union
enjoyed majority support during a relevant period among an appropriate
unit of the signatory employer's employees. See id. "[U]pon conversion,
an employer [was] `under the statutory duty to recognize and bargain
with the union as the employees' exclusive representative.' " Id. at 1379.
Finding several flaws in the conversion doctrine, including its failure to
foster industry stability or advance the objective of employee free
choice,
the Board in Deklewa rejected the doctrine, see id. at 1380-84, and held
that parties to an 8(f) agreement are required to comply with that
agreement until it expires unless employees vote to reject or change the
bargaining representative. See id. at 1385. Accordingly, neither
employers nor unions are free to unilaterally repudiate such an
agreement for the life of the agreement but may only do so upon its
expiration. See id. at 1385-86.

9
that S 8(f) agreements are enforceable during the life of the
agreement but impose no continuing obligation to bargain
following the termination of that agreement), enforced sub
nom. International Ass'n of Bridge, Structural & Ornamental
Iron Workers v. NLRB, 843 F.2d 770 (3d Cir. 1988).
Luterbach instructs that an 8(f) employer will be bound by
multiemployer bargaining only if it is "part of the
multiemployer unit prior to the dispute" and"has, by a
distinct affirmative action, recommitted to the union that it
will be bound by the upcoming or current multiemployer
negotiations." Luterbach, 315 N.L.R.B. at 980. Thus, "mere
inaction during the multiemployer negotiations will not
bind an 8(f) employer to a successor contract." Id. at 979.

Because the distinction between 8(f) and 9(a) significantly
affects the analysis concerning withdrawal from a
multiemployer bargaining unit, we examine whetherS 8(f)
or S 9(a) governs the relationship between the parties in this
case. The district court held that the S 8(f) rule requiring an
employer's affirmative action to bind it to the multiemployer
negotiations does not apply because "Defendant[did] not
assert nor [did] the record demonstrate that SMCA [was]
comprised exclusively of S 8(f) employers." App., Vol. II at
262A.

On appeal, Herre Bros. claims that the record clearly
establishes that the relationship between the parties is
governed by S 8(f) because the "SMCA is comprised of
employers `engaged primarily in the building and
construction industry' " as indicated by 29 U.S.C. S 158(f).
Appellant's Br. at 19. Herre Bros. also argues that the court
improperly applied the summary judgment standard and
viewed evidence and inferences in favor of the Union. The
Union responds by asserting that the 1992 agreement itself
provides clear proof that the employer, through the SMCA,
"expressly recognized [the Union] as the recognized
collective bargaining representative under Section 9(a),"
even when viewed in a light most favorable to Herre Bros.
Appellee's Br. at 25-26.

To determine whether the relationship here is governed
by 8(f) or 9(a), we look to federal labor relations law. See
Mack Trucks, Inc. v. International Union, UAW, 856 F.2d
579, 591 (3d Cir. 1988). In Deklewa, the Board explained

10
that "the party asserting the existence of a 9(a) relationship
[has the burden] to prove it" because the relationship is
presumed to be an 8(f) relationship. Deklewa, 282 N.L.R.B.
at 1385 n.41; see also NLRB v. Goodless Elec. Co., 124 F.3d
322, 328 (1st Cir. 1997) ("Unless and until a relationship is
proved to be otherwise, a bargaining relationship between a
construction industry employer and a union is presumed to
be 8(f) rather than 9(a)."); Casale Indus., Inc., 311 N.L.R.B.
951, 952 (1993) ("[T]he Board presumes that parties in the
construction industry intend their relationship to be an 8(f)
relationship."). Deklewa indicated that a party asserting a
9(a) relationship could overcome the 8(f) presumption by
showing that a construction industry employer voluntarily
recognized a union based on a clear showing of majority
support among the unit employees. See Deklewa , 282
N.L.R.B. at 1387 n.53. Subsequent Board cases have
explained that a union can establish a 9(a) relationship
from an 8(f) relationship in two ways: "(1) through a Board-
certified election, or (2) through an employer's voluntary
grant of recognition of the union as the employees'
exclusive majority bargaining agent." Goodless Elec., 124
F.3d at 328; see J & R Tile, Inc., 291 N.L.R.B. 1034, 1036
& n.11 (1988) (citing cases).

To satisfy the voluntary recognition option under
Goodless Electric, the party asserting the 9(a) relationship
must show (1) a clear and unequivocal demand to be
recognized as a 9(a) representative, (2) a voluntary and
unequivocal grant of such recognition, and (3) a
contemporaneous showing of majority support among the
appropriate unit of employees. See Golden West Elec., 307
N.L.R.B. 1494, 1495 (1992). "[T]here must be evidence that
the union unequivocally demanded recognition as the
employees' 9(a) representative and that the employer
unequivocally accepted it as such." J & R Tile, 291 N.L.R.B.
at 1036.

With respect to the third requirement, Board precedent
indicates that the contemporaneous showing of majority
support may be satisfied in various ways. For example, the
Board has indicated that majority support may be
demonstrated through the presentation of employee
authorization cards to an employer, see Hayman Elec., Inc.,

11
314 N.L.R.B. 879, 886 (1994), or through an employer-
conducted poll prior to initial recognition, see Precision
Stripping, Inc., 284 N.L.R.B. 1110, 1112 (1987). In addition,
the Board has found the third requirement satisfied where
an employer's admission or acknowledgment that the union
enjoyed majority support was given contemporaneously
with the demand for 9(a) recognition and was provided
without inquiry into the union's actual status. See Golden
West Elec., 307 N.L.R.B. at 1495 ("The voluntary
recognition agreement signed by the Employer by its terms
unequivocally states that the Union claimed it represented
a majority of the employees and Employer acknowledged
that this was so."). In addition, the Board has determined
that, by signing a collective bargaining agreement
containing contractual language which unequivocally
demands and grants 9(a) recognition and states that"the
Employer is satisfied that the Union represents a majority
of its eligible employees," the employer confers 9(a) status
on the union without more. Decorative Floors, Inc., 315
N.L.R.B. 188, 188 (1994); see also Triple C Maintenance,
Inc., 327 N.L.R.B. No. 15, 1998 WL 799280, at *6-*7
(N.L.R.B. Oct. 30, 1998) (holding that recognition clause of
collective bargaining agreement established that union was
exclusive representative of employer's employees based on
S 9(a)); MFP Fire Protection, Inc., 318 N.L.R.B. 840, 841-42
(1995) (determining that employer's execution of a
document acknowledging 9(a) representative status of the
union was sufficient to establish 9(a) relationship, despite
absence of other independent proof showing majority
status), enforced on other grounds, 101 F.3d 1341, 1343
(10th Cir. 1996).

Similarly, the Board has deemed as sufficient proof a
union's claim of majority support that went unchallenged
by the employer for more than six months. See Triple A Fire
Protection, Inc. 312 N.L.R.B. 1088, 1089 (1993) (applying
six-month limitation period to preclude employer from
challenging union's majority status approximately four
years after employer signed contract recognizing 9(a)
relationship), enforced, 136 F.3d 727, 736-37 (11th Cir.
1998); Casale Indus., 311 N.L.R.B. at 953 (refusing to
consider employer's challenge to union's majority status six
years after employer extended 9(a) recognition and limiting

12
challenges to union's majority status to six months after
employer extends 9(a) status). But see American Automatic
Sprinkler Sys., Inc. v. NLRB, 163 F.3d 209, 218 n.6, 222
(4th Cir. 1998) (holding that six-month limitation period
does not apply and requiring explicit proof of actual
majority status contemporaneous with union's demand and
employer's voluntary recognition).

Applying these principles to this case, we presume that
the collective bargaining relationship between Herre Bros.,
the SMCA, and the Union was established under S 8(f).
However, we must review the record to determine whether
the Union overcame this presumption and whether there
are genuine issues of fact on this point.

Viewing the evidence in a light most favorable to Herre
Bros., we conclude that the 1992 collective bargaining
agreement constitutes uncontroverted proof that the parties
were governed by S 9(a). Article II, S 12 of this agreement is
a recognition clause. It states:

Insomuch as[ ] the Union has submitted proof and
the Employer is satisfied that the Union represents a
majority of its employees in the bargaining unit
described herein, the Employer recognizes the Union as
the exclusive Collective Bargaining Unit on all present
and future job sites within the jurisdiction of the
Union, unless and until such time as the Union loses
its status as the employees exclusive representative as
a result of an N.L.R.B. election requested by the
employees. The Employer agrees that it will not request
an N.L.R.B. election and expressly waives any right it
may have to do so.

App., Vol. I at 136A. This language conclusively establishes
a 9(a) relationship for several reasons. First, while the
employer does not explicitly demand 9(a) recognition, the
intent and the content of the language unequivocally imply
such a demand.6 Second, the contract unequivocally states
_________________________________________________________________

6. We note that the 1995 collective bargaining agreement contains a
substantially identical recognition clause as the 1992 agreement. The
later agreement differs in that it explicitly states that "the Union has
demanded recognition from the Employer as the exclusive bargaining
representative . . . under Section 9(a) . . . and has submitted proof
thereof in the form of signed and dated authorization cards." App., Vol.
II at 162A.

13
that the employer recognizes the Union as the exclusive
majority representative of the employees in the bargaining
unit until the Union loses that status by an employee-
requested election. Third, although the type of proof is not
described, the contract clearly recites that the Union
submitted proof and that the employer is satisfied that the
union represents a majority of its employees based on that
proof. By entering into and signing an agreement
containing the above language, the employer confers 9(a)
status on the Union. See MFP Fire Protection, 318 N.L.R.B.
at 841-42; Decorative Floors, 315 N.L.R.B. at 188-89.
Fourth, the contract contemplates continuance of the
relationship subject to defeasance by an election
challenging the union's majority status. This arrangement
comports with the rule under S 9(a) that the union enjoys
a presumption of majority status until an employee-
requested election challenges that status; this structure is
contemplated by S 9(a) to preserve the freedom of employee
choice. Cf. Deklewa, 282 N.L.R.B. at 1379-80. We see no
reason why proof of a 9(a) relationship necessarily requires
reference to S 9(a) itself in the agreement if the language
otherwise conclusively gives notice that a 9(a) relationship
is intended. Moreover, the language of the 1992 contract in
this case appears indistinguishable from the contract
language held to be sufficient in Decorative Floors, 315
N.L.R.B. at 188-89, and Golden West Elec., 307 N.L.R.B. at
1495.

It is undisputed that Herre Bros. was a member of the
SMCA at the time this contract language was in effect and
that it was bound to the 1992 agreement. Thus, even
construing the contractual language and inferences
therefrom in a light most favorable to Herre Bros., there is
simply no way to read an 8(f) relationship into this
contract. Herre Bros. presents no facts which either create
a genuine issue of fact on this point or allow us to draw
any inferences against the inescapable conclusion that a
9(a) relationship governed the parties in this case.

B

We now turn to the question of withdrawal. The district
court analyzed whether the employer Herre Bros. had

14
properly withdrawn from the multiemployer bargaining
association under S 9(a) standards. The court determined
that Herre Bros. timely notified the SMCA and the Union of
its revocation of the assignment of its bargaining rights but
that the revocation was invalidated because Herre Bros.'
subsequent conduct was inconsistent with the revocation.
See App., Vol. II at 264A-65A.

On February 13, 1995, the president of Herre Bros.,
Richard A. McBride, wrote a letter to the SMCA revoking
the association's authority to bargain on behalf of Herre
Bros. See id. at 254A. As a result, the SMCA sent a letter
to the president of the Union, Thomas J. Kelly, explaining
that Herre Bros. "[would] not be assigning the Bargaining
Authorization to SMCA." Id. at 255A. This letter, dated
March 1, 1995, was signed by the president of the SMCA,
Mr. Forlizzi. The record shows that at all times relevant to
this case, Mr. Forlizzi also was vice-president of sheet metal
operations at Herre Bros. See id., Vol. I at 53A. On March
9, 1995, Mr. Kelly sent a letter on behalf of the Union to
Herre Bros. in which he admitted receiving notice from the
SMCA that Herre Bros. had not given their bargaining
rights to the association and he invited Herre Bros. to
negotiate separately a new collective bargaining agreement
to replace the one expiring on May 31, 1995. See id., Vol.
II at 154A.

Meanwhile, the SMCA proceeded to negotiate with the
Union, meeting six times between May 15, 1995, and July
18, 1995. Lori A. Eshenaur, executive director of the SMCA,
and Mr. Kelly were the principal negotiators. They reached
a tentative agreement on June 2, 1995, and although the
new agreement was not signed by the parties until July 18,
1995, it was effective retroactively from June 1, 1995, to
May 31, 1998. Both the expiring 1992 agreement and the
new 1995 agreement contained identical language providing
that all members of the association "shall be bound by this
Agreement."7 Id., Vol. I at 136A; Vol. II at 162A. If Herre
_________________________________________________________________

7. Article II, S 13 of the 1992 and the 1995 agreements states in full:

The Employer hereby agrees that all of its members, both
collectively and individually, shall be bound by this Agreement,
just

15
Bros. failed to effectively withdraw or if its conduct
subsequently invalidated a withdrawal, it certainly would
be bound to the 1995 agreement by this provision.

Although Herre Bros. and the Union negotiated
independently, meeting approximately four times beginning
on May 23, 1995, they did not reach an agreement. 8
Toward the end of the negotiation period, on August 30,
1995, Mr. Kelly sent a letter to Ms. Eshenaur indicating
that he knew Herre Bros. was still a member of the SMCA
and Mr. Forlizzi was still president of the SMCA. The
purpose of the letter was to inquire about what actions the
SMCA was taking with respect to Herre Bros. and to remind
the SMCA that S 13 of the 1995 collective bargaining
agreement bound all members of the SMCA to the terms of
that agreement. On September 14, 1995, the Union's
lawyer sent a letter to counsel for Herre Bros. "requesting
that Herre Brothers acknowledge that it is bound to the
[1995 collective bargaining agreement] in accordance
with the terms of that Agreement[,] . . . their membership in
the [SMCA, and] . . . Section 8(a)(5) of the National Labor
Relations Act." Id., Vol. II at 230A. The next day Mr. Kelly
sent a letter to Herre Bros. stating that the Union expected
Herre Bros. to employ all the sheet metal workers beginning
September 18, 1995, pursuant to the collective bargaining
agreement to which it believed Herre Bros. was bound. The
letter was received by Herre Bros. on September 18, 1995.
However, on September 19, 1995, Mr. Forlizzi, in his
_________________________________________________________________

as surely as if each and every member signed it and whether or not
each does so individually and whether or not membership is
retained in the Employer Association party to this Agreement. The
Employer, as an Association, through its duly elected officers and
representatives hereby declares and affirms that each and every
member has so agreed and has authorized the officers and
representatives named below to sign this agreement, both for the
Association and for each member individually.

App., Vol. I at 136A; Vol. II at 162A.

8. The record indicates that Union workers struck Herre Bros. from
August 16, 1995, through September 17, 1995. Because Herre Bros. fails
to show the relevance of this strike on the dispute, it has no bearing on
our analysis.

16
capacity as vice-president at Herre Bros., wrote the SMCA
notifying it of Herre Bros.' immediate withdrawal from the
association. See id. at 249A. At this juncture, Herre Bros.
refused to be bound by the 1995 agreement.

Generally, "[a]n employer who is a member of a
multiemployer bargaining association is bound by an
agreement negotiated by the association." NLRB v.
Hartman, 774 F.2d 1376, 1383 (9th Cir. 1985) (citing
Charles D. Bonanno Linen Service, Inc. v. NLRB, 454 U.S.
404, 412 (1982)). After a multiemployer bargaining
arrangement is formed binding its members to a union
agreement, the parties' withdrawal is subject to reasonable
controls. See Retail Assocs., 120 N.L.R.B. at 393. Absent
unusual circumstances or mutual consent, neither
employers nor unions may withdraw from multiemployer
bargaining arrangements once negotiations for a new
contract have commenced. See id. at 395."Prohibiting such
withdrawals contributes to the stability of multiemployer
units and prevents the use of the scope of the bargaining
unit as a bargaining lever to secure an economic advantage
for one side over the other." NLRB v. Marine Mach. Works,
Inc., 635 F.2d 522, 524 (5th Cir. 1981); see also NLRB v.
Sheridan Creations, Inc., 357 F.2d 245, 248 (2d Cir. 1966)
("Withdrawal should be restricted to the period before
negotiations to assure that it is not used as a bargaining
lever.").

Effective withdrawal from a multiemployer unit must
meet three requirements. In Retail Associates, the Board
explained that a S 9(a) employer may abandon the
multiemployer bargaining unit only if it (1) unequivocally
withdraws from the association (2) in a timely fashion
before negotiations for a new contract begin (3) by
communicating the intent to withdraw to all parties. See
Retail Assocs., 120 N.L.R.B. at 393, 395. "The decision to
withdraw must contemplate a sincere abandonment, with
relative permanency, of the multiemployer unit and the
embracement of a different course of bargaining on an
individual-employer basis." Id. at 394. Stated differently, an
employer may not attempt to "secure the best of two
worlds" by purportedly withdrawing bargaining authority
but then remaining a member of a multiemployer unit in

17
the hope of securing advantageous terms through group
negotiations. Associated Shower Door Co., 205 N.L.R.B.
677, 682 (1973), enforced, 512 F.2d 230, 233 (9th Cir.
1975); accord Michael J. Bollinger Co., 252 N.L.R.B. 406,
407-08 (1980), enforced, 705 F.2d 444 (4th Cir. 1983)
(Table); cf. Road Sprinkler Fitters Local Union No.
669/Plumbing and Pipefitting Industry, 318 N.L.R.B. 347,
348 (1995) (distinguishing employer's timely and adequate
withdrawal from bargaining association from case where
employer "hangs back" to see how bargaining will proceed),
enforced, 853 F.2d 918 (3d Cir. 1988) (Table)."Clearly, all
parties to collective bargaining need to know with whom
they are bargaining and who will be bound by any
agreement that is reached." Hartman, 774 F.2d at 1383.

By the exchange of letters in February and March of
1995 between Herre Bros., the SMCA, and the Union, Herre
Bros. met the requirements of withdrawal set forth by Retail
Associates, 120 N.L.R.B. at 393, 395. Herre Bros.
unequivocally notified the association that it was
withdrawing its bargaining rights before negotiations for the
new 1995 contract began; that intent was communicated to
the Union by Mr. Forlizzi on behalf of the SMCA; and the
Union acknowledged the revocation of bargaining rights to
Herre Bros. We now examine whether Herre Bros.' actions
after its revocation invalidated the revocation.

"The Board has often held that an employer's withdrawal
from multiemployer bargaining is nullified when its
subsequent actions are inconsistent with its stated intent
to abandon group bargaining . . . ." See International
Ladies' Garment Workers' Union, 286 N.L.R.B. 226, 230
(1987). Certain conduct, therefore, is prohibited to prevent
the employer from obtaining the "best of two worlds."
Associated Shower Door, 205 N.L.R.B. at 682; accord
Trustees of the Carpenters Health & Welfare Trust Fund v.
Universal Constr. Servs., 695 F. Supp. 554, 564 (S.D. Fla.
1988) ("Defendant may not attempt to seek the`best of two
worlds' by attempting to assert that his obligations have
terminated while continuing to reap the benefits of hiring
and employing Union members, and continuing to conduct
itself as though it were bound under the agreement.").

18
The Board's jurisprudence in this area is governed largely
by the factual particularities of each case. Nonetheless, two
principles have emerged. First, the Board has decided that
an employer's continued membership in a multiemployer
association after revoking bargaining rights is not
necessarily inconsistent with the intent to revoke
bargaining rights. See Ladies' Garment Workers' , 286
N.L.R.B. at 230 ("[T]he fact that an employer does not
resign from the multiemployer association is not
inconsistent with withdrawal . . . from multiemployer
bargaining."); Walt's Broiler, 270 N.L.R.B. 556, 557-58
(1984) (holding that employers' continued membership in
multiemployer association "[did] not negate the clear and
unequivocal intent" not to be bound to a multiemployer
agreement); cf. Patterson-Stevens, 316 N.L.R.B. at 1286
(finding that S 8(f) employer did not act in manner
inconsistent with withdrawal from multiemployer
bargaining despite fact that it did not terminate
membership in association and it continued to serve on
association's board of directors). Thus, while Herre Bros.
did not withdraw completely from the SMCA until
September 19, 1995, well after the bargaining had begun
and concluded, its continued membership in the
association after revocation did not necessarily contradict
its intent to revoke bargaining rights.

Second, the Board and the courts have stated that an
employer may be bound to a multiemployer agreement,
even after effecting a timely withdrawal from an association,
by continuing to participate actively in the association's
negotiations and continuing to observe membership
obligations such as paying dues to the association. See,
e.g., Dependable Tile Co., 268 N.L.R.B. 1147, 1147 (1984)
(holding that employer nullified its withdrawal from
multiemployer bargaining by renewing its membership in
the association and participating actively in group
negotiations for a new contract), enforced Hartman, 774
F.2d at 1384-85; Bollinger, 252 N.L.R.B. at 407
(determining that employer's pattern of sending withdrawal
letters to the union while attending and participating in
multiemployer bargaining did not constitute effective
withdrawal); Associated Shower Door, 205 N.L.R.B. at 682
(finding withdrawal ineffective in part because employers'

19
subsequent participation in multiemployer negotiations
retracted or nullified any withdrawal).9 Even where the
Board found that withdrawal was effective and was not
invalidated, it suggested that an employer may nullify its
withdrawal "by attempting to secure favorable terms in [a]
new multiemployer . . . agreement, while reserving[the]
right to reject any agreement [it] did not like." See Ladies'
Garment Workers', 286 N.L.R.B. at 231. Accordingly, even
though continued membership in a multiemployer
bargaining association is not necessarily inconsistent with
revocation, it can be made inconsistent by too active
participation in the association or in the association's
negotiations with a union.

The record here shows that Mr. Forlizzi remained
president of the SMCA after timely withdrawing Herre Bros.'
bargaining rights from the association, during the
negotiations between the SMCA and the Union for the 1995
contract, and until Herre Bros. completely withdrew from
the association on September 19, 1995.10 The record also
reveals that Mr. Forlizzi was present at and participated in
the individual negotiations with the Union on behalf of
Herre Bros. We examine Mr. Forlizzi's actions in these
capacities between March 9, 1995, the date on which the
Union admitted receiving notice of Herre Bros.' revocation
of its bargaining rights from the SMCA, and September 19,
1995, the date on which Herre Bros. withdrew its
membership from the association, to determine their impact
on the question of withdrawal.
_________________________________________________________________

9. Generally, when withdrawal or revocation is "ineffective," this means
that the employer failed to satisfy the Retail Associates requirements of
unequivocal withdrawal by timely communicating the intent to withdraw
to all parties before negotiations for a new contract begin. See Retail
Assocs., 120 N.L.R.B. at 393, 395. When withdrawal or revocation is
"nullified," the employer has acted in a manner inconsistent with the
intent to withdraw. While some courts confuse this distinction, it is
really a false distinction because the end result is the same: The
employer is bound to the collective bargaining agreement.

10. By a check dated July 28, 1995, after the new 1995 contract had
been signed by the SMCA and the Union, Herre Bros. paid its dues to
the SMCA, thereby renewing its membership in the association.

20
On April 11, 1995, Mr. Forlizzi attended a meeting of the
Board of Directors of the SMCA. In his deposition, Mr.
Forlizzi admitted that he discussed the fact of upcoming
Union renegotiations at the meeting but stated that he did
not discuss the terms or conditions of the contract. On
three subsequent occasions, however, May 15, May 23, and
June 15, 1995, Mr. Forlizzi received information by fax
from Ms. Eshenaur concerning the negotiations between
the Union and the SMCA which included contract
particulars.11 See App., Vol. I at 69A-76A, 101A; Vol. II at
200A, 217A. Mr. Forlizzi admitted in his deposition that he
requested this information for the purpose of sharing
information and that, "as a matter of policy, the head of the
negotiating committee[, not the president of the SMCA,]
would have been the one to receive all this
correspondence." Id., Vol. I at 73A-74A. Specifically, the
items Mr. Forlizzi requested to be faxed to him included
SMCA-Union contract proposals, see id., Vol. II at 200A-
08A, synopses of negotiations between the Union and the
SMCA, see id., Vol. I at 74A-75A, and final contract
changes and wage rates, see id., 75A-76A; Vol. II at 217A-
23A. In addition to receiving negotiating information by fax,
Mr. Forlizzi admitted to three to six phone conversations
with Ms. Eshenaur and one phone conversation with
William Sponaugle, Chairman of the SMCA negotiating
committee, in which they discussed the terms of the
agreement between the Union and the SMCA, see id., Vol.
I at 101A-02A, 104A, 106A, and "what [the Union] was
asking for and what SMCA was offering." Id. at 69A. Ms.
Eshenaur testified that Mr. Forlizzi asked for the
information on the negotiations and that she sent it
because both the SMCA and Herre Bros. were in
negotiations with the Union. See id. at 104A. Finally, Ms.
Eshenaur also stated that Mr. Forlizzi attended a meeting
with her and counsel for the SMCA concerning one of the
contract clauses in negotiation. See id. at 107A-08A.

Without drawing any inferences, we think this evidence
speaks for itself. The evidence shows that after Herre Bros.
_________________________________________________________________

11. The record also shows that, on May 22, 1995, Mr. Forlizzi sent a fax
concerning the SMCA-Union negotiations to Tom Davies, counsel for
Herre Bros.

21
revoked its bargaining rights Mr. Forlizzi sought out
information from the SMCA-Union negotiations and
discussed the details of that bargaining with at least two
SMCA people directly involved in the negotiations. Although
Mr. Forlizzi did not actually attend or participate in
bargaining sessions between the SMCA and the Union, it is
clear from the record that he did participate in the
negotiations through his discussions with Ms. Eshenaur
and Mr. Sponaugle. Moreover, the fact that Mr. Forlizzi
sought information concerning the terms of the SMCA-
Union negotiations at the same time that he also was
negotiating with the Union on behalf of Herre Bros.
demonstrates that he intended to use that information
either for his own bargaining purposes on behalf of Herre
Bros. or to improve the bargain for the SMCA in his role as
its president. From this evidence, together with
Ms. Eshenaur's testimony confirming Mr. Forlizzi's
statements, we conclude that Mr. Forlizzi's conduct was
inconsistent with Herre Bros.' revocation of bargaining
rights. Moreover, the record does not create any genuine
issues of fact regarding this point. Even drawing all
inferences in favor of Herre Bros., there is no way around
the fact that Mr. Forlizzi obtained information from the
SMCA-Union negotiations to which he was privy and took
advantage of the benefits of multiemployer bargaining to
secure the best terms either for Herre Bros. or for the
SMCA. Either way, he was engaging in the very sort of
conduct that Associated Shower Door, 205 N.L.R.B. at 682,
counseled against.12 See Bollinger, 252 N.L.R.B. at 407-08.
We therefore conclude that the district court did not err in
finding that Mr. Forlizzi's conduct subsequent to the notice
of revocation nullified the revocation because it was
inconsistent with Herre Bros.' stated intent to abandon
group bargaining and negotiate independently.
_________________________________________________________________

12. Mr. Forlizzi's ex-officio membership in the SMCA Negotiating
Committee, see App., Vol. I at 43A, does not show conduct inconsistent
or consistent with Herre Bros.' stated intent to abandon multiemployer
bargaining. It is only Mr. Forlizzi's actual conduct in relation to the
SMCA and the Union that invalidates Herre Bros.' revocation of
bargaining rights.

22
Although we have determined that the district court did
not err in finding that Herre Bros. nullified its revocation of
bargaining rights, we briefly examine whether the Union
acquiesced to Herre Bros.' nullification of its revocation. If
the Union acquiesced, the revocation remains operative.
See, e.g., Associated Shower Door, 205 N.L.R.B. at 681.

Usually, courts examine whether a union has acquiesced
or consented to an employer's withdrawal in situations
where the withdrawal was apparently ineffective because it
was untimely. See, e.g., Reliable Roofing Co., 246 N.L.R.B.
716, 717 (1979) (concluding that union did not clearly
intend to acquiesce to employer's withdrawal from ongoing
multiemployer bargaining); Associated Shower Door, 205
N.L.R.B. at 681 (questioning whether union acquiesced to
employer's attempted withdrawal after negotiations had
commenced). In this case, Herre Bros. seems to argue that
their revocation of bargaining rights trumps any conduct
that may have nullified the revocation because the Union
acquiesced to that conduct.

A union may acquiesce to an employer's withdrawal in
several manners, including initiating individual bargaining
with the employer, listening to the employer's counteroffers,
and offering terms or conditions to the employer that are
more favorable than those proposed to the multiemployer
association. See Associated Shower Door, 205 N.L.R.B. at
681. In this case, the Union initiated separate bargaining
with the employer, but both parties agree that it did not
offer more favorable terms or conditions to the employer.
See App., Vol. II at 226A; Appellant's Br. at 25. These facts
alone do not answer whether the Union acquiesced.

Another consideration relevant to the question of
acquiescence is when the Union learned that Herre Bros.
was a member of the SMCA and that Mr. Forlizzi was still
its president. The SMCA executive director, Ms. Eshenaur,
testified that Herre Bros.' continuing membership in the
association and Mr. Forlizzi's presidency were discussed at
several negotiating sessions with the Union between May
and July 1995. See App., Vol. I at 110A-11A, 114A. Union
president and negotiator Mr. Kelly stated that he did not
know prior to the negotiations that Herre Bros. remained a
member of the SMCA or that Mr. Forlizzi was still president

23
of the association, see id., Vol. II at 224A, and that no
SMCA representative informed the Union of these facts
until the end of August 1995. See id. at 225A-26A. The
notice sent by the SMCA to the Union indicating that Herre
Bros. no longer assigned bargaining rights to the
association did not mention Herre Bros.' continued
membership in the association, nor did it say anything
about Mr. Forlizzi continuing as president of the SMCA. See
id. at 255A. These differing testimonies reflect that
questions of fact exists about when the Union knew that
Herre Bros. remained a member of the SMCA and that Mr.
Forlizzi was still the president of the association, but we
conclude that they are immaterial fact questions based on
the following reasoning. It is undisputed that at the time of
the negotiations in 1995 between the Union and the SMCA
and between the Union and Herre Bros. the Union was
unaware of Mr. Forlizzi's attempts to obtain information
regarding the SMCA-Union negotiations; it did not know
that the SMCA and Herre Bros. had shared information in
this manner. More importantly, Mr. Kelly operated under
the belief, which is not disputed by Herre Bros., that the
Union's negotiations with Herre Bros. were supposed to be
separate and independent from those with the SMCA. See
id. at 225A-26A. Because a union's acquiescence to
withdrawal is predicated on the notion that the
withdrawing employer will negotiate independently and
without attempting to secure terms to its satisfaction by
accessing multiemployer bargaining information, we
conclude that the Union in this case could not have
acquiesced to Herre Bros.' revocation regardless of when it
learned of Herre Bros.' status in the association and Mr.
Forlizzi's position as president.

We hold that, while an employer may remain a member
of a multiemployer association to obtain benefits other than
multiemployer bargaining, by revoking bargaining rights the
employer must forgo the advantages of multiemployer
bargaining. Cf. Bonanno Linen, 454 U.S. at 420 (Stevens,
J., concurring). An employer cannot both utilize the
advantages of multiemployer bargaining and revoke
bargaining rights so as to avoid being bound to a
multiemployer agreement. We adopt the Fifth Circuit's and
the Board's stated policy which prohibits using withdrawal

24
from multiemployer bargaining as a bargaining lever. See
Marine Mach. Works, 635 F.2d at 524; Associated Shower
Door, 205 N.L.R.B. at 682.

Mr. Forlizzi's admission that he requested and used
information from the SMCA to compare the negotiations,
that such information was not sent to him in his capacity
as president of the SMCA, and Ms. Eshenaur's confirmation
of these statements show only that Herre Bros. did not
abandon the advantages of group bargaining. Because we
conclude that Mr. Forlizzi's conduct was inconsistent with
Herre Bros.' stated intent to revoke its bargaining rights
and therefore invalidated the revocation, and because the
Union did not acquiesce to the nullification of the
revocation, we hold that the district court did not err in
concluding that Herre Bros. is bound to the 1995
agreement between the Union and the members of the
SMCA under S 13 of that agreement.

IV

The question remains whether the district court properly
granted the Union specific performance of the 1995
agreement. Herre Bros. argues that the district court
should not have granted specific performance for two
reasons: (1) the Union's request for specific performance
was unspecified until after trial and therefore untimely; and
(2) the equitable remedy was not necessary because the
district court was capable of determining the legal measure
of damages, as evidenced by its order filed August 27,
1997.

In its amended complaint, the Union requested money
damages representing lost wages and fringe benefits, a
declaratory judgment, and "[s]uch other relief as the Court
deems just and reasonable." App., Vol. II at 284A. We have
held that "Rule 8(a)(3) of the Federal Rules of Civil
Procedure does not require that the demand for judgment
be pled with great specificity." Sheet Metal Workers Local 19
v. Keystone Heating & Air Cond., 934 F.2d 35, 40 (3d Cir.
1991). As a result, we believe that the request for relief in
the amended complaint is broad enough to encompass a
request for specific performance, especially in light of the

25
actual request made in a post-trial brief.13 For this reason
and because a trial court is required to "grant the relief to
which the party in whose favor it is rendered is entitled,
even if the party has not demanded such relief in the
party's pleadings," Fed. R. Civ. P. 54(c), we cannot say that
the Union's request for specific performance was untimely
or otherwise improper.

We now turn to the second argument. While this court
has not explicitly stated its standard for reviewing decisions
granting or denying specific performance, we have
suggested that we use a discretionary standard. See Castle
v. Cohen, 840 F.2d 173, 178 (3d Cir. 1988) (stating that "a
court of equity may, in its discretion, grant specific
performance"); First Nat'l State Bank v. Commonwealth Fed.
Sav. & Loan Ass'n, 610 F.2d 164, 174 (3d Cir. 1979)
(holding that trial judge's decision to grant specific
performance, which placed substantial hardship on one
party, was not an abuse of discretion). Because the
equitable remedy of specific performance is not a matter of
absolute right but rests within the sound discretion of the
court, we review the district court's decision to grant
specific performance for an abuse of discretion. Accord
Medcom Holding Co. v. Baxter Travenol Lab., Inc., 106 F.3d
1388, 1403 (7th Cir. 1997) (reviewing grant of specific
performance for an abuse of discretion); Walser v. Toyota
Motor Sales, U.S.A., Inc., 43 F.3d 396, 403 (8th Cir. 1994)
(same); Koch v. Koch, 903 F.2d 1333, 1335 (10th Cir. 1990)
(same); Klein v. PepsiCo, Inc., 845 F.2d 76, 78 (4th Cir.
1988) (same); Trans Union Credit Info. Co. v. Associated
Credit Servs., Inc., 805 F.2d 188, 193 & n.6 (6th Cir. 1986)
(same); Leasco Corp. v. Taussig, 473 F.2d 777, 786 (2d Cir.
1972) (same). A court may grant specific performance if
there is no adequate remedy at law. See Castle, 840 F.2d at
_________________________________________________________________

13. Although Herre Bros. did not provide the court with a copy of the
Union's post-trial brief in the record, both parties agree that the
Union's
post-trial brief, which was filed after the conclusion of the November
1996 bench trial on damages, see App., Vol. II at 271A; Attach. to
Appellant's Br. (Order filed Nov. 20, 1996), contained a request for
specific performance. Herre Bros. filed a responsive memorandum
objecting to the request for specific performance. See App., Vol. II at
278A.

26
178 (citing Portnoy v. Brown, 243 A.2d 444, 446 (Pa.
1968)); Kroblin Refrigerated Xpress, Inc. v. Pitterich, 805
F.2d 96, 103 (3d Cir. 1986). We exercise plenary review to
determine whether there is an adequate remedy at law. See
Kroblin, 805 F.2d at 103.

In any suit seeking specific performance, a grant of
equitable relief is available only as a substitute in "the
absence of an adequate remedy at law." Dairy Queen, Inc.
v. Wood, 369 U.S. 469, 478 (1962). Generally, the legal
remedy is inadequate in only two situations:

(1) where damages would be insufficient because the
subject matter of the contract is of such a special
nature that it resists translation into quantitative
terms--the damage remedy would not be a just and
reasonable substitute for or representative of that
subject-matter in the hands of the party who is entitled
to its benefit; or (2) where damages are impracticable
because it is impossible to arrive at a legal measure of
damages at all, or at least with any sufficient degree of
certainty.

First Nat'l State Bank, 610 F.2d at 171 (quotation marks
and citations omitted); see also Girard Bank v. John
Hancock Mut. Life Ins. Co., 524 F. Supp. 884, 888 n.1, 895-
96 (E.D. Pa. 1981) (applying First National State Bank
reasoning to analysis of specific performance under
Pennsylvania law and ordering specific performance), aff'd,
688 F.2d 820 (3d Cir. 1982) (Table).

We can see nothing unusually special about the nature of
the 1995 agreement that would make damages insufficient
if they were reduced to quantitative terms. See First Nat'l
State Bank, 610 F.2d at 171. The record shows that after
a trial on the damages in this case the district court
calculated several different measures of damages. Itfirst
determined that the Union was entitled to $12,577.00 for
Herre Bros.' "failure to pay union members in accordance
with the 1995 contract for work performed after May 31,
1995." App., Vol. I at 19A. The court then held that lost
wages are not a proper element of damages, see id. at 27A,
and it calculated the amount recoverable for work
performed by nonunion workers. For two periods of time,

27
from June 1, 1995, through May 31, 1996, and from June
1, 1996, through September 27, 1996, the court calculated
damages for "straight time" and overtime work performed
by nonunion workers, for a total of $269,181.32. Id. at 28A.
Third, the court awarded uncontested liquidated damages
in the amount of $43,445.66. Finally, in response to the
Union's request for an accounting of damages for work
performed by nonunion workers after September 27, 1996,
the court directed Herre Bros. to provide the Union with an
accounting of hours worked by nonunion workers between
September 27, 1996, and the date of the court's Order,
August, 27, 1997. See id. at 12A, 31A. The court instructed
the Union that it could file a supplemental brief on this
issue and permitted Herre Bros. to file a reply brief.14

It is not erroneous as a matter of law to award both
damages and specific performance. See First Nat'l State
Bank, 610 F.2d at 174 (stating that award of incidental
damages in addition to specific performance award was not
improper). Here, the district court calculated damages up to
the time of its order and concluded that the best way to
deal with damages from the date of its order to the end of
the collective bargaining agreement (from August 27, 1997,
to May 31, 1998) was to order specific performance of the
agreement. As evidenced by the court's need to order an
accounting and further briefing from the parties for
damages from the date that discovery was concluded,
September 27, 1996, to the date of its order, August 27,
1997, it is reasonable to conclude that calculating damages
for the period from August 27, 1997, to the end of the 1995
agreement, May 31, 1998, would have been impracticable
at best. Because a period of time remained in the 1995
agreement at the time the district court filed its August 27,
1997 Order and Memorandum, there was no way it could
have calculated "with any sufficient degree of certainty"
how many contracts Herre Bros. would have and how many
employees it would require. Id. at 171. Thus, based on the
uncertainty of Herre Bros.' future amount of work, we
conclude that damages were impracticable and there was
_________________________________________________________________

14. With respect to damages for work that was subcontracted by Herre
Bros. after June 1, 1995, the court held that the Union had not met its
burden of establishing this type of damages.

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no adequate remedy at law for the period of time remaining
in the 1995 agreement. On the basis of this conclusion, we
hold that the district court did not abuse its discretion in
ordering specific performance.

We AFFIRM the district court's order of specific
performance.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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