Samoff v. TEAMSTERS LOCAL 115, AFFILIATED WITH INT. BRO.

• Decision Date: 08 February 1972
• Docket Number: Civ. A. No. 71-2528.
• Citation: 338 F. Supp. 856
• Parties: Bernard SAMOFF, Regional Director of the Fourth Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TEAMSTERS LOCAL 115, AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, Respondent.
• Court: U.S. District Court — Eastern District of Pennsylvania

338 F. Supp. 856

Bernard SAMOFF, Regional Director of the Fourth Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TEAMSTERS LOCAL 115, AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, Respondent.

Civ. A. No. 71-2528.

United States District Court, E. D. Pennsylvania.

February 8, 1972.

COPYRIGHT MATERIAL OMITTED

Robert Kaplan, Philadelphia, Pa., for petitioner.

Louis H. Wilderman, Richard H. Markowitz, Wilderman, Markowitz & Kirschner, Philadelphia, Pa., for respondent.

OPINION AND ORDER

EDWARD R. BECKER, District Judge.

I. Preliminary Statement

This is a petition brought by the National Labor Relations Board ("Board") for a temporary injunction under § 10 (l) of the National Labor Relations Act ("Act"), 29 U.S.C. § 151, et seq., alleging that the respondent, Teamsters Local 115 ("Union") has violated § 8(b) (7) (C) of the Act, in connection with its picketing of J. L. Popowich and Sons ("Company"), a Philadelphia firm engaged in the importation and distribution of watch bands. Section 8(b) (7) (C) prohibits picketing by a union which is not the certified representative where "an object" is recognition or organization, if the picketing is conducted for more than a reasonable period, not to exceed 30 days, without the filing of a petition for certification under § 9(c) of the Act. Section 8(b) (7) violations are among those unfair labor practices which Congress deemed sufficiently disruptive of commerce to include in § 10(l), which authorizes the federal district courts to grant temporary injunctive relief pending final action of the Board.

The picketing in question began on August 4, 1971. A petition for certification was filed on August 30, 1971. The gravamen of the Board's § 10(l) petition is that the picketing, from its inception, was accompanied by such threats and violence, directed towards the Company's partners, employees, customers and suppliers, that a certification petition filed 26 days later was not filed within a reasonable time.

We held an extensive hearing on the matter. At the hearing, the Board introduced substantial evidence in support of its allegations. The Union also introduced evidence: (1) denying that the pickets uttered threats or committed violence; and (2) denying that the picketing was organizational and recognitional in nature, asserting instead that the purpose of the picketing was to protest unfair labor practices by the Company, i. e., violations of §§ 8(a) (1) and 8(a) (3) of the Act, on account of which the Board (see infra) has filed a complaint against the Company. Our first task will be to make findings, to the extent permitted by our limited fact finding role, to resolve these factual disputes, and also another factual dispute which arises as follows.

The Union introduced evidence in support of an alternative argument, which commences with a virtual concession (confirmed in its Requests for Conclusions of Law) that at least part of the initial purpose of the picketing was organizational. The Union asserts that, at the time it commenced picketing, it represented (by virtue of signed cards) the majority of the Company's production and maintenance employees, thereby entitling it to recognition. It then filed a petition charging the Company with an unfair labor practice under § 8(a) (5) of the Act for refusing to recognize it; such charge, if sustained, would present a valid defense to the Union violation of § 8(b) (7) (C).¹ The Regional Director, however, refused to issue a complaint charging an 8(a) (5) violation. The Union thereupon appealed the Regional Director's refusal to issue a complaint, but on November 16, 1971, the Board's General Counsel denied the appeal.^1a The Union contends that, after the General Counsel's decision, the purpose of the picketing changed, and that the picketing thenceforward was solely to protest the Company's 8(a) (1) and 8(a) (3) violations and not for organizational or recognitional purposes. The Board denies that the picketing ever lost its organizational or recognitional content. While in view of the General Counsel's decision, and the case of Dayton Typographical Union No. 57 v. NLRB, 117 U.S.App.D.C. 91, 326 F.2d 634 (1963), discussed infra, it is not necessary to make a finding as to whether the Union in fact had a clear majority of the cards, it will be necessary to make a finding with respect to whether, after the General Counsel's decision, the purpose of the picketing changed.

The factual content of the case may be better understood if we first outline the legal questions raised by the Union's defense. These may be summarized as follows:

FIRST: Is the evidence sufficient for us to find reasonable cause to believe that the Union has violated § 8(b) (7) of the Act? Subsidiary questions are: (a) whether the refusal of a state trial judge to issue an injunction against acts of violence by the Union forecloses consideration of the threats and violence issue; and (b) whether it is proper to take the nature of the picketing into consideration (e. g., whether it is violent or peaceful) in determining what constitutes a reasonable time under § 8(b) (7) (C).

SECOND: Whether, notwithstanding the 8(a) (5) dismissal, the Union's alleged status as the representative of a majority of the Company's employees is a valid defense to the § 8(b) (7) (C) charge against the Union.

THIRD: Whether violation of §§ 8(a) (1) and 8(a) (3) by the Employer can constitute a defense to the § 8(b) (7) (C) charge; and

FOURTH: Whether the provision of § 10(l) authorizing us to grant such relief as was deemed "just and proper" invokes the equitable doctrine of unclean hands and requires us to deny relief on account of the Company's conduct; in the alternative, whether the "just and proper" language, as an expression of our equitable powers, or the proviso of § 8(b) (7), authorizes us to permit picketing to continue, with or without a hiatus or "quarantine" period, on the basis that it is also to protest unfair labor practices or, more to the point, solely to protest unfair labor practices in the wake of the unsuccessful 8(a) (5) appeal.

II. The Court's Fact-Finding Role

Our fact-finding role in this case is a limited one. We are bound by the principles enunciated in Schauffler for and on Behalf of N.L.R.B. v. Local 1291, Int'l Longshoremen's Ass'n, 292 F.2d 182 (3d Cir. 1961), as follows:

"It must be borne in mind that a Section 10(l) injunction is interlocutory in nature and only remains in force pending the final adjudication of the Board with respect to the unfair labor practice charge ... The Board need not show that an unfair labor practice has been committed, but need only demonstrate that there is reasonable cause to believe that the elements of an unfair labor practice are present. Nor need the Board conclusively show the validity of the propositions of law underlying its charge; it is required to demonstrate merely that the propositions of law which it has applied to the charge are substantial and not frivolous....

. . . . . . .

"If, in a Section 10(l) proceeding, a district court or a court of appeals undertook to finally adjudicate such questions it would not be acting consistently with the congressional policy underlying Section 10(l) ... Thus, the court would, to some extent, usurp the Board's function as the primary fact finder in cases arising under the Act and its function as primary interpreter of the statutory scheme. ...." Id. at 187, 188 (emphasis added).

III. Findings of Fact

Petitioner is Regional Director of the Fourth Region of the Board, and filed this Petition for and on behalf of the Board. We find that there is, and that Petitioner has, reasonable cause to believe the following facts:

During the month of July 1971, the Union commenced efforts to organize the Company's employees.² The Union organizers were soon successful in obtaining from among the employees of the Company many (executed) cards indicating a desire to join the Union and designating the Union as their bargaining representative.³ On August 2, 1971, Joseph Yeoman ("Yeoman"), a Union Business Agent, in a face-to-face meeting, represented to management that he had in hand cards signed by a majority of the employees and made a formal demand for recognition. On the same day, in addition to this demand, Yeoman mailed a letter and a "recognition agreement" to the Company and made a recognition demand upon Jay Ochroch, Company counsel, informing him that if the Company did not recognize the Union, there would be a strike commencing August 4. The Company refused the demands, asserting that it would recognize the Union only if there were an NLRB election. On August 3, Yeoman met at the Union Hall with the Company's employees and told them that the Company did not recognize the Union and that they would, therefore, go on strike. On August 4, as promised, a number of the Company's employees did not appear for work but instead formed a picket line in which they were joined by Union employees and members from other plants in the Philadelphia area.

From the beginning, the picketing was accompanied by threats, epithets and violence directed to the Company's management (particularly, two of the firm's partners, David and Maury Popowich), its employees, customers and suppliers. The Company first became aware of the picketing as the result of an incident involving one Donald DeVillasanta. On August 4, at about 7:45 a. m., DeVillasanta, a supplier of the Company, was making a delivery to the Company's plant at 542 Green Street, Philadelphia. As he parked his truck he was approached by Yeoman, who stood at the rear of the truck, keeping him from letting the tail gate down, and who told him that he could not deliver there because of the picketing.

Yeoman also told him if he delivered he "would be sorry." Maury Popowich opened the door for DeVillasanta...