United States Court of Appeals, Third Circuit.: Nos. 74-1130 To 74-1132

507 F.
2d 83
9 Fair Empl.Prac.Cas. 165, 9 Empl. Prac. Dec. P 9867

UTILITY CONTRACTORS ASSOCIATION OF NEW
JERSEY, INC., et al.,
v.
Adrian R. TOOPS, etc., et al.
Appeal of LOCAL 122 OF the UNITED ASSOCIATION OF
JOURNEYMEN
& APPRENTICES OF the PLUMBING & PIPEFITTING
INDUSTRY OF the UNITED STATES AND
CANADA, AFL-CIO, No. 74-1130.
Appeal of LOCAL 236 OF the UNITED ASSOCIATION OF
JOURNEYMEN
& APPRENTICES OF the PLUMBING & PIPEFITTING
INDUSTRY OF the UNITED STATES AND
CANADA, AFL-CIO, No. 74-1131.
Appeal of LOCAL NO. 69 (LOCAL 14) OF the UNITED
ASSOCIATION
OF JOURNEYMEN& APPRENTICES OF the PLUMBING &
PIPEFITTING INDUSTRY OF the UNITED
STATES& CANADA, AFL-CIO,
Appellant in No. 74-1132.
Nos. 74-1130 to 74-1132.
United States Court of Appeals, Third Circuit.

Argued Nov. 21, 1974.
Decided Dec. 31, 1974.
Richard K. Rosenberg, Rosenberg & Waldman, Glen Rock, N.J., for

Utility Contractors Association of New Jersey, Inc.
Joseph M. Stone, Washington, D.C., for National Utility Contractors
Association, Inc.
James R. Zazzali, Lawrence A. Whipple, Jr., Zazzali & Zazzali, P.A.,

Newark, N.J., for Laborers' Local Union No. 472 and Deisler, Sorg, Perro,
Joseph Figuero, Justo Figueroa, Carlos Nieves, DiLoiveira, Fernandes, G.
Screws, Price, and Wideman.
Robert J. Connerton, Arthur M. Schiller, Jules Bernstein, Washington
D.C., for Laborers' Local Union Nos. 172 and 509.
Fox & Fox, I. Harry Sobol, Newark, N.J., for New Jersey Association of
Plumbing-Heating-Cooling Contractors, Inc. amicus curiae.
Frank H. Pykon, Dunn & Pykon, Newark, N.J., for Local No. 236 of the
United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL-CIO.
John A. Craner, Ronald J. Nelson, Craner, Brennan & Nelson, Elizabeth,
N.J., for Local 122 of the United Association of Journeymen &
Appentices of the Plumbing & Pipefitting Industry of the United States
and Canada, AFL-CIO.
Daniel J. Hussey, David Friedland, Friedland & Friedland, Jersey City,
N.J., for Local 69 (Local 14) of the United Association of Journeymen &
Apprentices of the Plumbing & Pipefitting Industry of the United States
and Canada, AFL-CIO.
Appeals from the United States District Court for the District of New
Jersey (D.C. Civil Action No. 1943-71).
GIBBONS, Circuit Judge.
The appellants in these consolidated appeals are three New Jersey locals of the
United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL-CIO. They appeal
from a consent decree entered against other defendants in the district court,
which was entered as a final judgment as to the consenting parties pursuant to
Rule 54(b) Fed.R.Civ.P. The plaintiffs are the Utility Contractors Association
of New Jersey, Inc., a state-wide organization of employers in the utility
construction industry, seven such employers, the National Utility Contractors
Association of which the New Jersey Association is a member, three New
Jersey locals of the Laborers' International Union of North America, several
officers of those locals, five black and five hispanic members of the Laborers'
Union. The plaintiff employers utilize the services of Laborers' Union members
in laying pipe. The defendants are six New Jersey municipalities, the plumbing
inspectors of those six municipalities, and the three defendant Plumbing and
Pipefitting locals.
2
The complaint, in four counts, charges that the Plumbing and Pipefitting locals,
whose membership is overwhelmingly white, conspired with the plumbing
inspectors, who are members of Plumbing and Pipefitting locals, and with the
municipalities, to cause the adoption of allegedly discriminatory municipal
building codes. These codes required that pipe to be laid in any trench between
the curb line of the street and the building line be laid by licensed plumbers and
that such codes be enforced by criminal sanctions. The comlaint further charges
that the effect of the codes and their enforcement is to deprive the members of
the Laborers' Union locals, who are substantially black and hispanic, of work
which they are capable of performing, which their employers want them to
perform, which is identical with the work they perform outside the curb line,
and which they have traditionally performed in the past.
The first count of the complaint alleges that the enforcement of the building
codes denies blacks and other minority group members the equal protection of
the law guaranteed by the fourteenth amendment, the Civil Rights Act of 1964,
42 U.S.C. 2000e, and applicable New Jersey statutes. The second count alleges
that the conspiracy violates 42 U.S.C. 1985. The third count alleges the
violation of 42 U.S.C. 2000d. The fourth count alleges a violation of 1 of the
Sherman Antitrust Act, 15 U.S.C. 1.
The complaint seeks both injunctive relief and damages. It asks that the
individual plaintiffs be designated as class action representative plaintiffs, that
the plumbing inspector defendants be designated as class action representative
defendants for all similarly situated municipal plumbing inspectors in New
Jersey, and that the named municipalities be designated as class action
representative defendants for all New Jersey municipalities. Pursuant to Rule
23(c)(1) Fed.R.Civ.P. the plaintiffs applied for an order, entered on November
13, 1972, designating all municipalities of New Jersey (there are 567 such
municipalities) as a proper class of defendants, and the individually named
municipalities as class representatives. A notice to this effect was sent to each
New Jersey municipality pursuant to Rule 23(c)(2). In response eight of the
municipalities sent letters to the Clerk of the United States District Court opting
out of the class.
Meanwhile, settlement negotiations proceeded between the plaintiffs and the

class action representatives of the municipalities. These resulted in a
compromise in which a consent judgment would be entered dismissing all
demands for money damages against all New Jersey municipalities, declaring
that pipelaying work outside buildings is labor not requiring a plumbing license
and ordering that all building code ordinances inconsistent with that declaration
be amended by adopting the language:
6
'Anything in this Code, or any other ordinance, rule, regulation or enactment of

the (insert name of municipality) or any of its personnel notwithstanding, no
individual or corporation shall be required to obtain a permit or license in order
to engage in the occupation of laying or installing pipe or conduit of any nature
outside of buildings and inside property lines.' (Appendix at 141a).
Notice of the proposed compromise was mailed to all New Jersey

municipalities pursuant to the court's order and Rule 23(e) Fed.R.Civ.P.
The court's order, which was included in the mailing, provided that an order
embodying the settlement would be entered if objections were not forthcoming
within twenty days. No municipality objected. The appellants did object,
contending that the settling defendants had not adequately considered the public
health and safety. After hearing these objections the district court concluded
that the defendant municipalities were best able to judge these considerations.
Moreover, the district court found that the proposed consent decree neither
afforded relief against, nor adjudicated any rights or obligations of the nonsettling defendants, and that they had no standing to object to a compromise
between other parties. The court entered the consent decree and ordered that it
be entered as a final judgment.
These appeals followed. We dismiss them.
10
The appellants Plumbers and Pipefitters locals have discharged a shotgun blast
at the procedures which led to the consent decree and at its claimed substantive
defects. Nowhere, however, are we informed what gives them standing as
appellants to seek to overturn an injunction which does not bind them and
interferes with no legal relationship between them and the settling parties.1 This
small point of appellate procedure has not often been litigated, probably
because it is so elementary. The leading authority is Judge Staley's opinion for
this Court in Milgram v. Loew's, Inc., 192 F.2d 579, 586 (3d Cir. 1951), cert.
denied, 343 U.S. 929, 72 S.Ct. 762, 96 L.Ed. 1339 (1952):
11
'The second question before us is the motion of plaintiff to dismiss the appeal
of the intervening defendants. The district court found no unlawful conduct on
their part, and as to them, dismissed the complaint without costs. The sole
problem for our consideration is whether these intervenors have been legally
aggrieved in any way by the decree entered below. It is settled law that even a
party cannot appeal from a decision which is not adverse to him. StearnsRogers Mfg. Co. v. Brown, 8 Cir., 1902, 114 F. 939; Atles v. United States, 3
Cir., 1931, 50 F.2d 808, 78 A.L.R. 435. The decree of the district court was not
directed at the intervening defendants. Where an injunction is granted, one
cannot generally appeal from the order unless he is directly or indirectly
restrained from the performance of some act. See 4 C.J.S. Appeal and Error
183. The intervening defendants contend, however, that the decree adversely
affects them because it will result in the admission of plaintiff's theater to a first
run status in competition with them.
12
It may very well be that the effect of the decree will be to injure the intervenors
economically. But they can hardly contend that they have a legal right to be
free from competition. The injury from competition is generally damnum
absque injuria. Prior to the entry of the district court's decree, each of the
distributor-defendants would have been free to license films on first run to
plaintiff, and no legally protected interest of the other first run exhibitors would
have been invaded. We cannot discern how the intervenors have now acquired
greater rights merely because the distributor-defendants here have combined
not to license first runs to plaintiff, and have now been enjoined from so doing.
We think plaintiff's motion to dismiss the appeal of the intervening defendants
should be granted.'
13
In addition to the cases cited by Judge Staley, see, e.g., Farmers' Loan and Trust
Co. v. Waterman, 106 U.S. 265, 1 S.Ct. 131, 27 L.Ed. 115 (1882); Fuqua v.
Bidwell, 281 F.2d 753 (6th Cir. 1960); Teamsters Local No. 523 v. Keystone
Freight Lines, 123 F.2d 326, 330 (10th Cir. 1941). The appellants have no legal
interest in the ordinances, either as originally drawn or in the form required by
the consent order. While the practical effect of the amendment to the building
codes is to make the laborers eligible to perform work originally reserved to
plumbers and thus injure them economically, this is damnum absque injuria.
The financial benefit to the appellants resulting from the prior ordinances did
not confer any legal right to insist upon a continuance of the status quo.2 In the
absence of this lawsuit, had any of the municipalities chosen voluntarily to
change its building code, the appellants' monetary interests would not have
conferred legal standing to prevent such governmental action.
14
Therefore, since the judgment of the district court does not affect any
enforceable rights of the appellants, the appeals will be dismissed.
Assuming the truth of the allegations of the complaint, the ordinance resulted
Assuming the truth of the allegations of the complaint, the ordinance resulted
from illegal relationships. We do not think their alleged status as conspirators
gives them standing as appellants. Alternatively, if the conspiracy allegations
are false, appellants have no particular interest in the ordinances at all
The factual situation here should be contrasted with that in Equal Employment
Opportunity Commission v. American Telephone and Telegraph Company, 506
F.2d 735 (3d Cir. 1974), where the union objected to a consent decree because
it affected the contractual rights between it and the employer- defendant. We
are mindful that ordinarily a consent decree affecting third party rights should
not be entered without affording such parties an opportunity to be heard. The
moving papers of the appellants did not suggest and facts which if established
would have shown interference with their rights. Thus an evidentiary hearing
was unnecessary

United States Court of Appeals, Third Circuit.: Nos. 74-1130 To 74-1132

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United States Court of Appeals, Third Circuit.: Nos. 74-1130 To 74-1132

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507 F.

9 Fair Empl.Prac.Cas. 165, 9 Empl. Prac. Dec. P 9867

United States Court of Appeals, Third Circuit.

Richard K. Rosenberg, Rosenberg & Waldman, Glen Rock, N.J., for

James R. Zazzali, Lawrence A. Whipple, Jr., Zazzali & Zazzali, P.A.,

Meanwhile, settlement negotiations proceeded between the plaintiffs and the

'Anything in this Code, or any other ordinance, rule, regulation or enactment of

Notice of the proposed compromise was mailed to all New Jersey

These appeals followed. We dismiss them.

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