Alpert v. Truck Drivers, Warehousemen & Helpers

CourtUnited States District Courts. 1st Circuit. United States District Court (Maine)
Citation161 F. Supp. 86
Docket NumberCiv. No. 1069.
PartiesBernard L. ALPERT, Regional Director of the First Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board v. TRUCK DRIVERS, WAREHOUSEMEN AND HELPERS LOCAL NO. 340, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
Decision Date01 April 1958

Allen R. DeLong, Atty., Nat'l Labor Relations Board, Washington, D. C., Joseph Lepie, Atty., Nat'l Labor Relations Board, Boston, Mass., for petitioners.

Sidney W. Wernick, Portland, Me., for respondent.

Gerald E. Rudman, Bangor, Me., for complaining party.

GIGNOUX, District Judge.

This application for a temporary injunction is brought pursuant to the provisions of § 10(l) of the National Labor Relations Act. 29 U.S.C.A. § 160(l).

The petitioner, Regional Director of the First Region of the National Labor Relations Board, alleges in his petition, which was filed February 5, 1958, that respondent is an unincorporated association and a labor organization within the meaning of §§ 2(5), 8(b) and 10(l) of the Act; that respondent at all times material herein has been engaged within this judicial district in transacting business and in promoting and protecting the interests of its employee members; that jurisdiction of this proceeding is conferred upon this Court by § 10(l) of the Act; that on or about January 17, 1958, Viner Bros., Inc., filed a charge with the Board alleging that respondent has engaged in, and is engaging in, unfair labor practices within the meaning of § 8(b) (4) (A) of the Act; that the charge was referred to petitioner and was investigated by him and under his supervision; and that, after investigation, petitioner has reasonable cause to believe the charge is true and that a complaint of the Board based thereon should issue against respondent pursuant to § 10(b) of the Act.

The petitioner further alleges that petitioner has reasonable cause to believe: (a) that Viner Bros., Inc. (hereinafter called Viner), a Maine corporation, engaged at Bangor, Maine, in the manufacture of shoes, has during the past year sold and shipped shoes valued at in excess of $100,000 from its plant to places outside the State of Maine; (b) that Boot and Shoe Workers Union, AFL-CIO, has been the collective bargaining representative of the employees of Viner at all times material hereto; (c) that Viner utilizes common carriers by motor vehicle such as Fox & Ginn, Inc., Penobscot Motor Express, Capitol Motors, and Graves' Express to deliver incoming freight and materials and to pick up outgoing shipments; (d) that respondent has been the collective bargaining representative of the drivers, helpers and warehousemen employed by the abovenamed carriers at all times material herein; (e) that, since on or about November 1, 1957, Boot and Shoe Workers Union, AFL-CIO, has been engaged in a strike against Viner and has picketed the latter's plant; (f) that at no time material herein has respondent had any labor dispute with Viner; (g) that, since November 4, 1957, respondent has ordered, directed, instructed and appealed to the employees of the above-named carriers and other employers not to make deliveries to or pick-ups from Viner's premises, or to handle or work on products or freight consigned to or from Viner; (h) that as a result of respondent's orders, directions, instructions and appeals, the employees of the above-named carriers and of other employers have refused to make deliveries to or pick-ups from Viner, or to handle products or materials consigned to or from Viner; (i) that, by its conduct, respondent has engaged in, and has induced and encouraged employees of the above-named carriers and of other employers to engage in strikes, or concerted refusals in the course of their employment to use, manufacture, process, transport or otherwise handle or work on goods, articles, materials or commodities, or to perform services; and (j) that an object of respondent's acts has been and is to force or require the above-named carriers and other employers to cease using, handling, transporting or otherwise dealing in the products of Viner, and to cease doing business with Viner — all in violation of § 8(b) (4) (A) of the Act, and affecting commerce within the meaning of § 2(6) and (7) of the Act.

The petition also asserts that it may fairly be anticipated that respondent will repeat or continue its acts or conduct allegedly violative of § 8(b) (4) (A) of the Act, and that it is essential and appropriate, just and proper, for the purpose of effectuating the policies of the Act, and in accordance with the provisions of § 10(l) thereof, that, pending final disposition of these matters by the Board, respondent be enjoined and restrained from the commission of the acts and conduct above alleged, similar acts and conduct, or repetitions thereof. The petition prays for an order directing respondent to show cause why an injunction should not issue enjoining and restraining respondent and all its representatives from conduct proscribed by the Act.

On this petition, an order to show cause was issued on February 5, 1958. Respondent's answer, filed February 10, 1958, denies the material allegations of the petition, and sets forth as an affirmative defense the "hot cargo" clause in its collective bargaining agreement with the above-named carrier-employers, which it alleges precludes the activities charged against it by petitioner from being a violation of § 8(b) (4) (A) of the Act.

Hearing was held on February 13 and 14, 1958, and briefs and suggested findings of fact and conclusions of law were submitted by the parties on March 10, 1958. A reply brief was filed with the Court by petitioner on March 21, 1958.

The following opinion contains the findings and conclusions required by Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A.:

1. Section 8(b) (4) (A) of the Act, 29 U.S.C.A. § 158(b) (4) (A) provides:

"(b) It shall be an unfair labor practice for a labor organization or its agents — * * *
"(4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person * * * Provided, That nothing contained in this subsection shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer (other than his own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under this subchapter * * *"

And § 10(l) of the Act provides:

"(l) Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (A), (B), or (C) of section 158(b) of this title, the preliminary investigation of such charge shall be made forthwith and given priority over all other cases except cases of like character in the office where it is filed or to which it is referred. If, after such investigation, the officer or regional attorney to whom the matter may be referred has reasonable cause to believe such charge is true and that a complaint should issue, he shall, on behalf of the Board, petition any United States district court within any district where the unfair labor practice in question has occurred, is alleged to have occurred, or wherein such person resides or transacts business, for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter. Upon the filing of any such petition the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper, notwithstanding any other provisions of law * * *"

2. Initially, the role of a district court ruling on a petition under § 10(l) of the Act must be distinguished from that of the National Labor Relations Board ruling on a complaint under § 10 (a)-(d) and from that of a circuit court acting on a petition to review or enforce a Board order under either § 10(e) or (f). 29 U.S.C.A. § 160(a)-(f). To the Board has been delegated the duty of finding ultimate facts on the record as a whole. See Universal Camera Corp. v. NLRB, 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. To the circuit courts has been given a limited review of such Board findings, with substantial evidence the test. See NLRB v. Denver Building & Construction Trades Council, 1951, 341 U.S. 675, 691, 71 S.Ct. 943, 95 L.Ed. 1284; Universal Camera Corp. v. NLRB, supra. By the terms of § 10(l) a district court's function is limited to ascertaining whether the Regional Director has "reasonable cause to believe" that the charges filed are true, and to granting such injunctive relief "as it deems just and proper." Douds v. Milk Drivers Union, AFL-CIO, 2 Cir., 1957, 248 F.2d 534, 537-538; Schauffler v. Highway Truck Drivers, 3 Cir., 1956, 230 F.2d 7, 9; Roumell v. United Ass'n of Journeymen of the Plumbing Industry, AFL-CIO, D.C.E.D. Mich.1957, 151 F.Supp. 706, 708; Douds v. Seafarers' Union, AFL-CIO, D.C.E.D. N.Y.1957, 148 F.Supp. 953, 955; Douds v. International Brotherhood of Teamsters, AFL, D.C.S.D.N.Y.1956, 139 F. Supp. 702, 712.

The requirement of § 10(l) that the Regional Director must have "reasonable cause to believe" that a charge is true is met by a showing of a reasonable probability that the petitioner is entitled to final relief. See Brown v. National Union of Marine Cooks...

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  • McLeod v. LOCAL 239, INTERNAT'L BRO. OF TEAMSTERS, ETC.
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    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
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    ...believe" that the charge was true. Douds v. Milk Drivers and Dairy Employees Union, 2 Cir., 1957, 248 F.2d 534, 538; Alpert v. Truck Drivers, D.C.Me.1958, 161 F.Supp. 86. No criteria is set forth in the statute for determining whether the Board had such "reasonable cause to believe" and the......
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    ...will issue upon a showing by petitioner of credible evidence constituting a prima facie case. Alpert v. Truck Drivers, Warehousemen and Helpers Local No. 340, D.C.D.Me. 1958, 161 F.Supp. 86. Petitioner must also present a legal theory or theories based upon appropriate provisions of the Act......
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    • March 30, 1959
    ...Knit Goods Workers' Union, D.C.E.D.N.Y.1957, 147 F.Supp. 345; D.C.E.D.N.Y.1957, 148 F. Supp. 615. 11 Alpert v. Truck Drivers, Warehousemen and Helpers, D.C.N.D.Me.1958, 161 F.Supp. 86, 89. ...
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    ...believe" that the charge was true. Douds v. Milk Drivers and Dairy Employees Union, 2 Cir., 1957, 248 F.2d 534, 538; Alpert v. Truck Drivers, D.C.Me.1958, 161 F.Supp. 86; McLeod v. Local 239, International Brotherhood of Teamsters, D.C.E.D.N.Y. 1960, 179 F.Supp. 481. It is not necessary to ......
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