Alpert v. UNITED STEELWORKERS OF AMERICA, ETC.

• Decision Date: 17 May 1956
• Docket Number: Civ. A. No. 56-403.
• Citation: 141 F. Supp. 447
• Parties: Bernard L. ALPERT, Regional Director, Etc. v. UNITED STEELWORKERS OF AMERICA, AFL-CIO, Etc.
• Court: U.S. District Court — District of Massachusetts

141 F. Supp. 447

Bernard L. ALPERT, Regional Director, Etc. v. UNITED STEELWORKERS OF AMERICA, AFL-CIO, Etc.

Civ. A. No. 56-403.

United States District Court D. Massachusetts.

May 17, 1956.

Stephen M. Reynolds, Washington, D. C., for National Labor Relations Board.

Sidney S. Grant, Boston, Mass., for respondents.

WYZANSKI, District Judge.

The Court has decided that it is in the interest of justice to dictate forthwith its oral opinion upon the petition for injunction under Section 10(l) of the National Labor Relations Act, 29 U.S.C.A. §§ 151 et seq., 160(l). In general, Congress has directed prompt dispatch of business under this Act. And there is the further consideration that the particular type of matter here brought to the Court ought to be rapidly handled since either the issuance of an injunction or the failure to issue an injunction has immediate and rather drastic consequences in a fluid economic situation. There is in this particular case an additional reason for prompt action because, as it will later appear, there are differences of opinion in Courts of Appeal which suggest that no inferior District Judge will be able to lay down the law in any way that both parties will regard as satisfactory; hence, the channel should be prepared for immediate appeal.

This case began, as has already been indicated, with a petition for injunction filed by the Regional Director of the First Region of the National Labor Relations Board. This petition, filed last Friday, May 11, was scheduled for prompt hearing, and, indeed, a hearing was held today in advance of any filing by the respondent of any written answer, motion, or other document. Due, however, to the cooperative attitude of counsel at a pretrial conducted in the first minutes of today's hearing, many of the matters covered by the petition were conceded for the purposes of this hearing and any appeal therefrom. Thus, it was agreed that the allegations set forth in Paragraphs 2 through 5 of the petition might be taken as true. With respect to the initial part of Paragraph 6 no agreement was made. However, the allegations in subparagraphs 6(a), 6(b), and 6(c) were accepted as true; so much of the allegations of 6(d) as did not involve a concession that there were more than daily reports of the employee (in other words, not three reports each day) were accepted as true; Paragraph 6(e) was accepted as being true up to the words "said premises" which appear on Line 4 of the complaint; none of the allegations set forth in Paragraphs 6(f), 6(g), and 6(h), and none of the allegations in Paragraph 7, were, even for the purposes of this hearing, admitted to be true.

From these concessions it was plain that Barry Controls, Inc., a Massachusetts corporation engaged in manufacture in Watertown, sells products in interstate commerce. Since about July 1955 its production employees and truck drivers employed at the Watertown plant have been represented for purposes of collective bargaining by United Steelworkers of America, AFL-CIO, and Local No. 5246, United Steelworkers of America, AFL-CIO more particularly.

About January 27, 1956, the workers in this unit of production employees and truck drivers engaged in a strike which still continues. About 130 employees are in this unit. At the beginning of the strike there were about two drivers among these 130. These truck drivers drive two trucks for Barry,—one, a larger 2½-ton truck made by International; the other, a small panel Chevrolet truck. The International truck goes in and out making deliveries for Barry perhaps once or twice a day; the Chevrolet goes back and forth half a dozen or more times a day. There are no set times for deliveries.

Among others to whom Barry customarily delivers its products for the purposes of further transport are: Cargo Transportation, Inc., Adley Express Company, and Highway Express Company, — all of whom have facilities in Cambridge, a city that adjoins Watertown and is virtually part of the same area. Barry also delivers products to Horn Bros., Inc., which is not a transportation company but is engaged in the packaging of goods.

So far the parties are not in disagreement on the facts. The questions of fact and of law which divide the parties relate to the conduct of pickets acting at the premises of Cargo, Adley, Highway, and Horn — companies against which Local No. 5246 is not striking and with which it has no labor relations so far as appears. All of these companies are what are sometimes referred to as "secondary employers" not engaged in the primary dispute between Barry and its employees and their representatives.

The thrust of the petition is that the conduct engaged in by the Union is a violation, or may reasonably be believed by the Board to be a violation, of Section 8(b) (4) (A) of the National Labor Relations Act, as amended, sometimes called the Taft-Hartley Act. That section provides:

"(b) It shall be an unfair labor practice for a labor organization or its agents * * *

"(4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods * * * or to perform any services, where an object thereof is:

"(A) forcing or requiring any employer * * * or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person."

The particular proceeding before this Court is filed pursuant to Section 10(l) of the same National Labor Relations Act. The object is to secure a temporary, not a permanent, injunction pending the final adjudication by the Board of a petition which the Board has before it. The petition, filed after preliminary investigation of charges made by Barry Controls, Inc., alleged that the Union and the Local have engaged in unfair labor practices within the meaning of the aforesaid Section 8(b) (4) (A) of the Act. The Board has not yet conducted any hearings on these charges. No Trial Examiner has taken testimony. No report has been filed. No action of the full Board or any panel thereof has occurred, save the authorization of the filing of the petition. The proceeding under Section 10(l) is, in effect, an application to this Court for a protective writ which goes beyond maintaining the status quo but which is in its essence intended to assure that if the Board is virtually certain to prevail on the merits of the case it cannot be thwarted in its effective economic impact by the failure of those alleged to have violated the Act to comply promptly with the mandate of law.

It is unnecessary to refer to the full text of Section 10(l) of the Act. It is quite clear from its language and from the numerous cases that interpret it that it is not prerequisite to the granting of equitable relief by the District Court that a District Court should find that the charges being heard by the Board are true or that in fact a violation of the Act has been committed. Any final determination of such matters must be made on a record before the Board and by the Board, subject, of course, to review in the Courts of Appeal and ultimately in the Supreme Court of the United States. All these further proceedings are provided for in Section 10 (e) and (f) of the aforesaid Act. But of course it does not follow, and the Board does not suggest that it does follow, that a District Court automatically will grant an injunction upon a petition filed by the Board after charges have been filed with the Board. What a court must do is to appraise the whole situation, exercising the best judgment it can as to what is the general scope of the facts likely to be proved before the Board, what are the issues of law, and how clear it is what rule of law would be and should be applied by the Board.

In this particular case, this Court took evidence from four witnesses offered by the petitioner and then entertained a motion by the defendants that even on the showing made by the petitioner, without taking any evidence from the defendants, the Court should conclude that the petition ought not to be granted. More particularly, the defendants urge this because they had maintained from the beginning, and repeated, that they were thoroughly prepared to stipulate that, pending a final determination by the full National Labor Relations Board of the case now involving Barry and the Union, the Union would abide by the following four conditions:—First, that the Unions and those they represent be limited to picketing at times when Barry's trucks were at the secondary employers' premises (of course without limiting the right of the Unions and the men to picket at the primary employers' premises); second, that any trucks picketed by the Unions and those they represent should be engaged in the normal business of Barry; third, that the picketing in so far as it involved secondary employers should be reasonably near in place to the truck or trucks of Barry; and fourth, that the pickets should clearly show that...