Building & Construction Trades Coun. of Met. Dist. v. Alpert, 5926.

• Decision Date: 10 May 1962
• Docket Number: No. 5926.,5926.
• Citation: 302 F.2d 594
• Parties: BUILDING AND CONSTRUCTION TRADES COUNCIL OF the METROPOLITAN DISTRICT et al., Respondents, Appellants, v. Bernard L. ALPERT, Regional Director of the First Region of the National Labar Relations Board, Plaintiff, Appellee.
• Court: U.S. Court of Appeals — First Circuit

302 F.2d 594 (1962)

BUILDING AND CONSTRUCTION TRADES COUNCIL OF the METROPOLITAN DISTRICT et al., Respondents, Appellants, v. Bernard L. ALPERT, Regional Director of the First Region of the National Labar Relations Board, Plaintiff, Appellee.

No. 5926.

United States Court of Appeals First Circuit.

May 10, 1962.

Henry Wise, Boston, Mass., with whom Robert L. Wise and Wise & Wise, Boston, Mass., were on brief, for appellants.

Julius G. Serot, Asst. General Counsel, with whom Stuart Rothman, General Counsel, Dominick L. Manoli, Associate General Counsel, and Stanley A. Mestel, Attorney, were on brief, for appellee.

Before HARTIGAN and ALDRICH, Circuit Judges, and CAFFREY, District Judge.

HARTIGAN, Circuit Judge.

This is an appeal from an order of the United States District Court for the District of Massachusetts granting a petition for an injunction filed on behalf of the National Labor Relations Board (hereinafter called the Board), pursuant to the provisions of Section 10(l) of the National Labor Relations Act, as amended (61 Stat. 149; 73 Stat. 544), 29 U.S. C.A. § 160(l).

The petition for injunction filed in the district court was based on charges filed with the Board by Winwake, Inc., a Massachusetts corporation engaged in the building and construction business. These charges alleged that the respondents-appellants had engaged in and were engaging in unfair labor practices condemned by Section 8(b) (4) (i) (ii) (B) and Section 8(b) (7) (C). Section 8(b) (4) (i) (ii) (B) proscribes the "secondary boycott" and Section 8(b) (7) (C) proscribes certain "organizational" and "recognitional" picketing.

The Board, acting through its Regional Director, concluded that the appellants had engaged in unfair labor practices in violation of the above cited sections and that a complaint by the General Counsel of the Board should issue. Accordingly, the Board's Regional Director, invoking Section 10(l) of the Act, sought injunctive relief in the district court pending final disposition of the proceedings before the Board.

On September 5 and 6, 1961, the district court conducted a hearing on the petition. After taking evidence, the court granted the Board's request for injunctive relief. On this appeal appellants do not question the sufficiency of the evidence upon which the district judge based his findings and conclusions that respondents had engaged in conduct proscribed by Section 8(b) (4) (i) (ii) (B) and Section 8(b) (7) (C) of the Act. Consequently, we need not detail this evidence here. In this court appellants raise two issues, both of which relate to the jurisdiction of the district court to grant the instant injunction on the present record.

Appellants' initial contention is based on language in Section 10(l) relating to the investigatory duties of the Board in the course of a proceeding under this section. Section 10(l) provides in pertinent part:

"(l) Boycotts and strikes to force recognition of uncertified labor organizations; injunctions; notice; service of process.

"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, or section 158(e) of this title or section 158(b) (7) of this title, the preliminary investigation of such charge shall be made forthwith * * *. 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 * * * for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter. * * *"

In its petition for injunction, the Regional Director fully set forth the underlying facts upon which the allegedly proscribed activities were based and also alleged that the Director "has reasonable cause to believe that said charges are true." As mentioned previously, there was abundant evidence adduced at the hearing upon which the district judge properly could have found the charges to be substantiated. The respondents do not challenge the sufficiency of this evidence.

However, in his petition the Regional Director did not allege, to use the language of respondents' brief, "the facts as to the existence, character, or adequacy of the investigation." Neither at the hearing did the Board produce evidence directly relating to the extent or character of its investigation which preceded the filing of the petition. Relying on the above-cited statute, specifically the language that "the preliminary investigation * * * shall be made" and "If, after such investigation, * * * there is * * * reasonable cause to believe such charge is true * * * a complaint should issue," respondents contend that the failure to allege and prove the scope of the investigatory process constitutes a jurisdictional deficiency which should have rendered the district court powerless to issue the instant injunction.

We do not agree with appellants' contentions in this regard. To be sure Section 10(l) contemplates that the Board, acting through its agents, undertake some form of investigation of the facts underlying the complaints before filing its petition. Such an investigation, as a practical matter, will undoubtedly be necessary if the Board is to develop sufficient relevant and competent evidence to constitute the "reasonable cause" without which a district court may not grant the appropriate injunctive relief. Predictably, the lack of an adequate investigation, where such is the case, will be plainly obvious at the judicial hearing on the Board's petition where, in the language of the statute "Upon filing of any such petition the courts shall cause notice thereof to be served upon any person involved in the charge and such person, including the charging party, shall be given an opportunity to appear by counsel and present any relevant testimony."

In contending that allegations and proof as to the scope of the Board's investigatory process are jurisdictional prerequisites in a Section 10(l) hearing, appellants rely principally on the 1958 decision of the Court of Appeals for the Seventh Circuit in Madden v. International Organization, etc., 259 F.2d 297. However, subsequent to this decision, the same court handed down its decision in Madden v. International Hod Carriers', etc., Union, 277 F.2d 688 (7 Cir. 1960), in which it clearly dispelled any support for appellants' contentions. There the court stated:

"It is our opinion that the scope, conduct or extent of the preliminary investigation are not matters relevant to or material for consideration on the issue to be adjudicated on hearing of a Section 10(l) petition, i. e., whether reasonable cause exists to believe a violation has occurred. This issue is to be resolved by the evidence adduced by the Board in open court to sustain its petition. The Board is enjoined to make a preliminary investigation but the adequacy of the investigation is judicially tested only by the Board\'s subsequent ability to sustain its initial determination that the investigation disclosed reasonable cause to believe that a violation occurred.

"The Union relies on observations made in Madden v. International Organization of Masters and Pilots, Inc., 7 Cir., 259 F.2d 297 as to concessions made by the Board in connection with its motion to dismiss its appeal from a district court\'s determination denying it injunctive relief under Section 10(l), in which motion the Board cited its own failure to conform with its Statements of Procedure in making the Section 10(l) preliminary investigation. The Union relies on these observations as constituting holdings that the preliminary investigation is a jurisdictional condition precedent to a Section 10(l) petition for temporary relief, and that an inquiry by the respondent into the scope and conduct of the Board\'s investigation in a Section 10(l) proceeding is a matter of right. We do not regard the remarks in Madden v. International Organization of Masters and Pilots, Inc., 7 Cir., 259 F.2d 297 as constituting such adjudications. And, insofar as those remarks may in any manner indicate anything contrary to the views herein expressed they are not adhered to." at 693.

In sum, we believe that the language of Section 10(l) relative to investigations should not be read as establishing a jurisdictional prerequisite, allegation and proof of which are preliminarily essential to the bringing of a Section 10(l) petition. Rather, it is our view that the pertinent provisions establish mandates for the Board — the noncompliance with which will undoubtedly spawn probative infirmities fatal to the relief it seeks.

Respondents next argue that by virtue of the Norris-LaGuardia Act (47 Stat. 70, 29 U.S.C.A. § 101 et seq.) the district court was without power to grant the instant injunction. This argument is premised on the basis that — even where it is the Board which is the moving party — the Norris-LaGuardia Act is applicable to proceedings under Section 10 (l) and conditions and constricts the operations of this section.

We find no merit in this position. Initially we note that Section 10(l) expressly provides that upon the filing of a petition by a regional officer or attorney "the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper, notwithstanding any other provision of law * * *." (Emphasis supplied.) Language of this sweep and scope takes on added significance when it is remembered that Congress was conspicuously mindful of the provision of the Norris-LaGuardia Act during the entire deliberation on the 1947 amendments. Moreover Section 10(h) of the Act clearly states that "when granting appropriate temporary relief or a restraining order, * * * the jurisdiction of courts sitting in equity shall not be limited by the Norris-LaGuardia Act."

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