268 F.2d 648 (8th Cir. 1959), 16161, Cosentino v. Local 28, Intern. Organization of Masters, Mates and Pilots, AFL-CIO

Docket Nº:16161.
Citation:268 F.2d 648
Party Name:Salvatore COSENTINO, Regional Director of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Appellant, v. LOCAL 28, INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS, AFL-CIO, and E. A. Adams and Harry Rutan, its agents, Appellees.
Case Date:July 20, 1959
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 648

268 F.2d 648 (8th Cir. 1959)

Salvatore COSENTINO, Regional Director of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Appellant,

v.

LOCAL 28, INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS, AFL-CIO, and E. A. Adams and Harry Rutan, its agents, Appellees.

No. 16161.

United States Court of Appeals, Eighth Circuit.

July 20, 1959

Page 649

Norton J. Come, Deputy Asst. Gen. Counsel, N.L.R.B. Washington, D.C. (Jerome D. Fenton, Gen. Counsel, Thomas J. McDermott, Assoc. Gen. Counsel, Winthrop A. Johns, Asst. Gen. Counsel, and Joseph I. Nachman and Fred S. Landess, Attys. N.L.R.B., Washington, D.C., were with him on the brief), for appellant.

Mozart G. Ratner, Chicago, Ill. (Jacobs & Ratner, Chicago, Ill., were with him on the brief), for appellees.

Before SANBORN, VAN OOSTERHOUT, and MATTHES, Circuit Judges.

MATTHES, Circuit Judge.

The sole question for determination on this appeal is the effect of an order entered on August 26, 1958, by Judge Joseph Samuel Perry, of the United States District Court for the Northern District of Illinois, Eastern Division. Madden v. International Organization of Masters, etc., 166 F.Supp. 862. This order dismissed a prior suit instituted on behalf of the National Labor Relations Board (hereinafter referred to as 'Board'), Thirteenth Region, seeking an injunction under § 10(l) of the National Labor Relations Act, as amended, 1 against the International Organization of Masters, Mates and Pilots, Inc., AFL-CIO, and Locals 28 and 3, and Harry Rutan, their agent (for brevity, sometimes referred to collectively as 'Union'). The acts complained of concerned picketing around property of The Texas Company in Indiana and Illinois, arising from a labor dispute between Union and Ingram Barge Company.

Subsequent to this dismissal, and on December 11, 1958, Salvatore Cosentino, Regional Director of the Fourteenth Region of the Board, filed the petition giving rise to this appeal in the United States District Court for the Eastern District of Missouri, seeking an injunction under § 10(l) of the Act. Although this suit involved picketing of Globe Fuel Products, Inc., in Chicago, Illinois, Commercial Barge Lines in St. Louis, Missouri, and The Texas Company in St. Paul, Minnesota, the complained of acts arose from the same labor dispute between Union and Ingram Barge Company. Following an order to show cause, appellees, respondents below, filed their motion to dismiss the petition on the ground, inter alia, that Judge Perry's order constituted a dismissal with prejudice, and that application of res judicata principles barred petitioner's right to an injunction in this case. The District Court agreed, sustained the motion, and dismissed the Board's petition.

Page 650

From that order, an appeal was perfected to this Court.

Since Judge Perry's order is the focal point of this controversy, we review the circumstances under which it was entered. As a defense to the Board's petition, Union alleged that the Board had not conducted a preliminary investigation prior to filing charges, as required by § 10(l) of the Act and Section 101.4 of the Board's Statements of Procedures. Ross M. Madden, Regional Director, Thirteenth Region, refused to testify or to produce subpoenaed documents concerning this preliminary investigation, and thereupon, Judge Perry entered the order of dismissal. 2 From that order, the Regional Director appealed to the United States Court of Appeals, Seventh Circuit. Before final determination in that Court, the Board, through counsel, filed a motion to dismiss the appeal. In summary, the motion admitted that the procedures prescribed for investigation of charges in § 10(l) cases, as...

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