McLeod v. Local 25, International Bro. of Elec. Wkrs.

• Decision Date: 27 April 1965
• Docket Number: 363,29367.,No. 362,Dockets 29366,362
• Citation: 344 F.2d 634
• Parties: Ivan C. McLEOD, Regional Director of the Second Region of the National Labor Relations Board, for and on Behalf of The NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee, v. LOCAL 25, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Respondent-Appellant (two cases).
• Court: U.S. Court of Appeals — Second Circuit

344 F.2d 634 (1965)

Ivan C. McLEOD, Regional Director of the Second Region of the National Labor Relations Board, for and on Behalf of The NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee, v. LOCAL 25, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Respondent-Appellant (two cases).

Nos. 362, 363, Dockets 29366, 29367.

United States Court of Appeals Second Circuit.

Argued March 9, 1965.

Decided April 27, 1965.

Allison W. Brown, Jr., Atty., N. L. R. B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Julius G. Serot, Asst. Gen. Counsel, Frank H. Itkin, Atty., N. L. R. B., Washington, D. C., on the brief), for petitioner-appellee.

Ernest Fleischman, New York City (Delson & Gordon, New York City, on the brief; David Ian Kramer, New York City, of counsel), for respondent-appellant.

Before SMITH and MARSHALL, Circuit Judges, and DOOLING, District Judge.^*

MARSHALL, Circuit Judge:

These consolidated appeals arise from two orders entered by the District Court for the Eastern District of New York on application of the Regional Director of the Second Region of the National Labor Relations Board. These orders were granted pursuant to § 10(l) of the National Labor Relations Act, 29 U.S.C. § 160(l), and they, in essence, temporarily enjoin Local 25, International Brotherhood of Electrical Workers, AFL-CIO, from picketing two different construction sites during the pendency of certain proceedings before the Board.

Brunswick Hospital site. In May 1964 the Brunswick Hospital Center, Inc., Amityville, New York, commenced construction of an additional wing. Amityville Physicians Realty Corp. owned the property on which the hospital was situated, and acted as general contractor for the construction. Dr. Benjamin Stein was director of the hospital and president of the Realty Corp., and he and his wife were sole stockholders of both corporations. Jules Stein, employed by the hospital, acted on behalf of the Realty Corp. in soliciting bids. On August 14, 1964 Sarrow Suburban Electric Co., Inc. received the electrical subcontract for labor only and several days later it signed a collective agreement with Local 199, Industrial Workers of Allied Trades, affiliated with the National Federation of Independent Unions.

Prior to this award of the electrical subcontract, the business agent of Local 25, Joseph Bermel, contacted Jules Stein on two occasions. The first occasion was in May 1964 when Bermel telephoned Stein. Bermel learned that the subcontracting had not yet been awarded, and offered to send a list of subcontractors with whom Local 25 had collective agreements. Jules Stein subsequently received the list, to which Bermel's business card was stapled; of this list of 50 to 75 names, five or six names were circled. Stein testified that "There was something in the telephone conversation which led me to believe that I should give preference to the names which had been circled"; and Bermel testified that in the course of the conversation he explained "I will encircle or underline several of those that I know have experience in a job of this nature." In July 1964 Bermel telephoned Jules Stein for the second time inquiring as to whether the electrical subcontracting had been awarded. Bermel was told that it had not, and he was assured that "the man who got the job would be a union man," to which Bermel supposedly replied, "as long as he is one of the men whose name appears on that list I sent you, you will have no trouble."

On August 21, seven days after the electrical subcontract had been awarded, Bermel visited the construction site and had a discussion with Dr. Stein in the presence of the subcontractor handling the concrete work. Upon learning that the electrical subcontract had been awarded to Sarrow, and that Sarrow had a collective agreement with Local 199, Bermel according to Dr. Stein's testimony, urged Dr. Stein to break his contract with Sarrow. Bermel advised, according to this same testimony, that if the contract were broken, "he would supply an electrical contractor who would meet the same price as Sarrow" and that if the contract were not broken, there would be "trouble" and "a work stoppage." Dr. Stein refused to break the contract with Sarrow. This confrontation, with little modification, was repeated twice more, on August 25 and August 28, and in the latter instance Walter Kraker, the business manager for Local 25, expressed the viewpoint previously expressed by Bermel. Respondent's account of these confrontations does not seriously differ from that just outlined, except that respondent insists that no work stoppage was threatened and that neither Bermel nor Kraker ever mentioned or claimed, on behalf of Local 25, "jurisdiction over the electrical work."

Sarrow commenced the electrical work on August 28. On September 3, Local 25 started picketing the construction site, carrying placards and distributing handbills, addressed "To The Public," stating: "The electricians employed by Sarrow Suburban Electric, Inc. are not working under wages and conditions established by Local Union 25, IBEW, AFL-CIO. We have no dispute with any other employer at this site." (Petitioner does not contend that the wages and conditions offered Local 199 employees were not below Local 25 standards.) Carpenters and laborers of the concrete subcontractor walked off the job, and this interfered with the progress of the construction job, although Sarrow's employees and the employees of some other subcontractors attempted to work during the picketing.

On September 14, the hospital and Sarrow filed unfair labor charges with the Regional Director, claiming that Local 25's picketing was in furtherance of a jurisdictional dispute and thus violative of § 8(b) (4) (i) (ii) (D)¹ of the Act (hereafter simply § 8(b) (4) (D)). The Regional Director investigated the charge and on October 9 petitioned the District Court under § 10(l) of the Act for injunctive relief pending final disposition of the proceedings before the Board; the Regional Director also requested a temporary restraining order to prevent irreparable injury pending the hearing on the petition. The District Court issued a temporary restraining order and conducted a hearing on an order to show cause, subsequent to which it entered its order granting the temporary injunction, from which this appeal was taken.

East End Synagogue site. In July 1964 Emmett Electric Company was engaged for the electrical subcontracting involved in the construction of the East End Synagogue, Long Beach, New York. Emmett's employees were members of Local 199 and had a collective agreement with that union. On September 14, 1964, Joseph Cavanaugh, another business representative of Local 25, visited the construction site, apparently before the electrical work actually began, and, not unexpectedly, inquired of the general contractor's job superintendent as to whether the electrical subcontract had been awarded. There is some dispute as to what transpired in the ensuing conversation after Cavanaugh learned that Emmett had received the subcontract. The job superintendent testified that Cavanaugh told him that Emmett's employees were not members of Local 25 and that unless Emmett was removed and replaced by electricians associated with Local 25, there would be picketing; he also testified that Cavanaugh gave him a list of electrical subcontractors employing Local 25 electricians. Cavanaugh admitted giving the job superintendent the list, but insisted that at that time he merely doubted whether Emmett employed Local 25 members and that he gave the job superintendent the list of Local 25 contractors so that "he could choose one of these contractors" "in case Emmett was a non-union contractor or not signed with Local 25." He denied that there was any threat of picketing. Cavanaugh also testified that he did not "claim or demand jurisdiction of the work."

In any event, on September 16, Local 25 began picketing the site with placards, addressed "To The Public" stating: "The electricians of Emmett Elect. are not working under wages and conditions established by Local Union 25, I. B. E. W., AFL-CIO. We have no dispute with any other employer at this site." (As in the instance of the Brunswick Hospital proceeding, petitioner did not dispute the truthfulness of the claim that the electricians were working for wages and conditions below Local 25 standards.) Plumbers and laborer employees of other contractors walked off the job, and this interfered with the progress on the construction. After about ten days of picketing, on about September 26, Emmett was ordered off the job by the general contractor and replaced by a Local 25 contractor, at which time the picketing ceased.

On September 18, Emmett alone filed unfair labor charges with the Regional Director, charging Local 25 with having violated § 8(b) (4) (D) of the Act by picketing the construction site in furtherance of a jurisdictional dispute. On October 9, after investigating the charges, the Regional Director filed a petition in the District Court seeking to restrain Local 25 from such further picketing pending adjudication by the Board. A hearing was conducted, and on November 30 the order appealed from was entered, temporarily enjoining Local 25.

In passing on a petition for a § 10(l) injunction, the federal district court does not have the authority nor the responsibility of deciding whether respondent had committed the unfair labor practice charged, or in the context of these cases, whether Local 25 had violated § 8(b...