264 F.2d 169 (7th Cir. 1959), 12506, Madden v. Perry

Docket Nº:12506.
Citation:264 F.2d 169
Party Name:Ross M. MADDEN, Regional Director for the Thirteenth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. Honorable J. Sam PERRY, Judge, United States District Court for the Northern District of Illinois, Eastern Division, Respondent.
Case Date:February 27, 1959
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 169

264 F.2d 169 (7th Cir. 1959)

Ross M. MADDEN, Regional Director for the Thirteenth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner,

v.

Honorable J. Sam PERRY, Judge, United States District Court for the Northern District of Illinois, Eastern Division, Respondent.

No. 12506.

United States Court of Appeals, Seventh Circuit.

February 27, 1959

Rehearing Denied April 6, 1959.

Page 170

[Copyrighted Material Omitted]

Page 171

Herbert L. Borovsky, National Labor Relations Board, Chicago, Ill., Norton J. Come, Attorney, National Labor Relations Board, Washington, D.C., for petitioner.

Mozart G. Ratner, Chicago, Ill., for respondent.

Before SCHNACKENBERG, HASTINGS and PARKINSON, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

Ross M. Madden, Regional Director for the Thirteenth Region of the National Labor Relations Board, by his petition filed November 26, 1958, asks us to issue a writ of mandamus directing Judge J. Sam Perry 1 of the United States District Court for the Northern District of Illinois, Eastern Division, to vacate supplemental findings of fact and conclusions of law entered on October 7, 1958, in case 58-C-1512 of that court. Judge Perry has filed an answer.

All of the relevant facts, which we now state, are undisputed.

On August 15, 1958, the Regional Director filed a petition in the district court alleging that International Organization of Masters, Mates and Pilots, Inc., AFL-CIO, Local 28 and Local 3 of the above International (some times referred to as the Locals), and Harry Rutan, their agent, were engaging in activities in violation of section 8(b)(4)(A) of the National Labor Relations Act 2 (herein called the Act), and praying that an injunction be issued under section 10(l) of the Act, 3 enjoining said respondents from continuing such activities pending final disposition by the Board of the unfair labor practice charges filed with it.

Respondents controverted the material allegations of the petition, alleging inter alia that Local 28 is not a 'labor organization' within the meaning of the Act; the International had no part in the picketing complained of; at no material time did any of the respondent unions act 'in concert' or as 'agents for each other' in respect to the matters involved; prior to the filing of the petition Local 3 had abandoned its dispute and terminated its picketing; and the inducement complained of was not, as alleged, violative of section 8(b)(4) (A). Respondents also denied that the Regional Director had, as he alleged, conducted an 'investigation, ' and on this ground they moved that the petition be dismissed.

The Regional Director, when under subpoena and called adversely by respondents, at the direction of his superiors refused to produce his files or testify concerning his alleged investigation of the defenses raised by respondents, although ordered by the court to do so.

On August 26, 1958, on motion of respondents, Judge Perry dismissed the petition for injunction on the ground that the Regional Director's refusal to testify as to whether he had conducted the preliminary investigation required by section 10(l), of the Act, and to produce evidence required by subpoena, deprived 'respondents of opportunity to establish a relevant defense, by due process of law'.

Judge Perry did not then rule upon a motion of Local 28 to dismiss the petition, on the ground that it had not been established that it was a labor organization within the meaning of the Act, and no determination was made as to any of the other merits of the petition, except as to International. 4

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On August 27, 1958, the Regional Director appealed to this court from the dismissal of the petition as to the Locals and Rutan. But, before the case was heard here, the Regional Director requested that the appeal be dismissed. 5 This court on October 2, 1958, granted the motion 'because (the) court finds the Board failed to comply with its own procedures, ' and dismissed the appeal 'with prejudice'. Case No. 12428, Madden v. International Organization, etc., 7 Cir., 259 F.2d 297, 300.

On October 3, 1958, the Locals filed with Judge Perry an 'Emergency Motion for Supplemental Findings of Fact and Conclusions of law.' These findings and conclusions pertained to and purported to decide the merits of the petition upon which issues had been raised by the respondents' motions and answers. The Locals' motion argued:

'To make it perfectly clear that petitioner may not relitigate the controversy which petitioner has already litigated in this case, it is equitable and proper that this Court enter additional findings of fact and conclusions of law in support of its order of dismissal. These findings and conclusions are specified in the defenses stated by respondents in their motions to dismiss and answers filed herein at the opening of the hearing and were fully established in the course of proof of petitioner's case.'

The Regional Director opposed that motion on the ground that the district court was without authority to enlarge the scope of its findings and conclusions after dismissal of the proceeding on a procedural ground, 6 when no further appeal could be taken to review the validity of such proposed findings.

However, on October 7, 1958, Judge Perry granted the Locals' motion and entered said supplemental findings and conclusions, which, in effect, purport to determine (1) that respondent Local 28 is not a labor organization within the meaning of the Act, (2) that the picketing by Local 28 was carried on in support of its own dispute with the primary employer, and not on behalf of Local 3 (which concededly is a 'labor organization'), (3) that there is no reasonable cause to believe that respondent Local 3 will resume picketing, and (4) that all of the picketing in this case was in any event primary activity which is not proscribed by the Act.

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On November 4, 1958, a new unfair labor practice charge was filed with the Regional Director, alleging inter alia that Locals 3 and 28 had resumed picketing activities following the dismissal order of August 26, 1958, and that such activities, like those alleged in the first case, were violative of section 8(b)(4)(A) of the Act.

The Regional Director represents to this court that unless we direct Judge Perry to vacate the supplemental findings aforesaid, such findings will be advanced as a bar to instituting a section 10(l) proceeding in any future case in which charges may be filed with the Regional Director alleging that Locals 28 and 3 have resumed unlawful picketing activities. He argues:

'Indeed, the declared purpose of these unions in requesting such findings was to preclude future Section 10(l) proceedings. Although petitioner believes that the supplemental findings should not have their intended effect, in view of the District Court's lack of authority to enter them, it cannot be certain that the courts in future 10(l) proceedings will not nevertheless regard them as conclusive. This danger is augmented by the reluctance of the law to permit collateral attacks on earlier proceedings, even though error therein be shown. * * * More specifically, there is an immediate danger that the supplemental findings and conclusions will be invoked to bar the Regional Director from maintaining a Section 10(l) proceeding with respect to the new charges filed with him, as described in paragraph 10, above, alleging that Locals 28 and 3 have resumed unlawful picketing activity.'

The answer of Judge Perry to the petition for writ of mandamus now before us, sets forth, inter alia, that on December 11, 1958, the Board filed in the United States District Court for the Eastern District of Missouri, Eastern Division, a petition under section 10(l) for injunctive relief against Local 28 and its agents, and that it thereby sought the same relief as the Regional Director's petition before Judge Perry, that said petition was based on three charges against respondents herein, involving alleged illegal picketing by respondents on November 4 and 18, 1958, the charges having been filed originally in the Chicago office of the Board, and thereafter transferred to the St. Louis office.

The answer further sets forth these facts: On December 17, 1958, in response to an order to show cause issued in that action, respondents therein filed a motion to dismiss the petition, to which...

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