Baltimore Bldg. and Const. Trades Council v. Maryland Port Authority

• Decision Date: 02 April 1965
• Docket Number: No. 167,167
• Citation: 238 Md. 232,208 A.2d 564
• Parties: BALTIMORE BUILDING AND CONSTRUCTION TRADES COUNCIL et al. v. MARYLAND PORT AUTHORITY.
• Court: Maryland Court of Appeals

Page 232

238 Md. 232

208 A.2d 564

BALTIMORE BUILDING AND CONSTRUCTION TRADES COUNCIL et al. v. MARYLAND PORT AUTHORITY.

No. 167.

Court of Appeals of Maryland.

April 2, 1965.

Cosimo C. Abato, Baltimore (Bracken, Abato & Mogowski, Baltimore, on brief), for appellant Baltimore Building and Const. Trades Council.

Charles B. Heyman, Baltimore (Sol C. Berenholtz, Baltimore, on the brief), for appellant Seafarers International Union of North America AGLIWD.

Bernard W. Rubenstein, Baltimore (Jacob J. Edelman, Baltimore, on the brief), for appellant Freight Drivers and Helpers Local No. 557.

William L. Marbury and Franklin G. Allen, Baltimore (Piper & Marbury, Baltimore, on the brief), for appellee.

Argued Jan. 7, 1965, before HAMMOND, HORNEY, MARBURY, SYBERT and OPPENHEIMER, JJ.

Reargued Feb. 9, 1965, before PRESCOTT, C. J., HAMMOND, HORNEY, MARBURY, SYBERT and OPPENHEIMER, JJ., and RALPH W. POWERS, Special Judge.

HAMMOND, Judge.

Upon application of the Maryland Port Authority, the Circuit Court of Baltimore City issued, ex parte, a preliminary restraining order, which it later made permanent, enjoining, (a) the Baltimore Building and Construction Trades Council from maintaining a picket line or picket boat at the terminals of the Authority for the purpose of inducing the Authority '* * * to require any contractor working on construction contracts at the said terminals to pay its employees the prevailing or union wages * * *,' and (b) the Freight Drivers and Helpers Local No. 557 and the Seafarers International Union of North America from '* * * advising persons attempting to deliver freight to said terminals, or attempting to pick up freight at said terminals, or attempting to dock or undock ships carrying freight or passengers to or from said terminals, that any picketing or patroling conducted in violation of this order is legitimate.'

In their appeal the three Union contend: (1) that the preliminary restraining order was void ab initio because the provisions of Code (1964 Replacement Volume 8B), Art. 100, Secs. 63-75, dealing generally with injunctions in labor disputes, were not complied with; ¹ (2) that both the preliminary order and the permanent injunction were void because the court lacked jurisdiction to issue them under Sec. 65 of Art. 100 of Code; (3) that the Circuit Court lacked jurisdiction to issue the preliminary order and the permanent injunction because Congress has confided to the National Labor Relations Board sole and exclusive right and power, in the first instance, to deal with the activities enjoined by that court; (4) that the Circuit Court erred in finding an unlawful purpose in the picketing by the Building Trades Council; and (5) that the enjoining orders unconstitutionally deprive the other two Unions of the right of free speech.

We are persuaded that the contention of federal preemption of the right and power of the state to determine originally the lawfulness of the activities of the Unions complained of by the Port Authority is sound and controlling and, therefore, do not reach the other questions posed.

At the hearing below, the Unions offered no evidence. The Port Authority, which is an instrumentality of the State of Maryland performing essential governmental functions having as their principal purpose the promption of commerce, Code (1964 Replacement Volume 5), Art. 62B, Secs. 1 [208 A.2d 566] and 3(a), produced witnesses who testified to the following facts.

The Authority owns and operates the Dundalk Marine Terminal and the Locust Point Marine Terminal, both on the shore of the Baltimore harbor. Through these terminals pass general import and export cargo from and to all parts of the world. As early steps in an extensive program of additions and improvements to its facilities, estimated to cost in total $30,000,000, the Authority in December 1963 awarded a contract for modification of the heating system at Locust Point to the J. H. Lawrence Co. (Lawrence), and in April 1964 a contract for construction of a bulkhead and appurtenances, to be built at Dundalk at a cost of $3,130,000, to McLean Contracting Company (McLean). In January 1964 the president of the Trades Council told the Deputy director of Engineering and Planning for the Authority that he disagreed with a ruling of the general counsel of the Authority that it could not legally include a prevailing wage clause in its construction contracts, that the lack of such a clause made it difficult for the Union to keep standards in the area at a proper level and that unless the situation was rectified 'there may be tie-ups of the port facilities of the Authority.' On April 22, 1964, the Attorney General of Maryland issued an opinion which the Authority had asked for, holding that it would be illegal for the Authority to require a prevailing wage clause in its contracts without express legislative authorization.

On the morning of Tuesday, May 12, 1964, pickets acting for the Trades Council appeared at the gates of the Dundalk and Locust Point Terminals. They carried signs headed 'Notice to the Public' which, at Dundalk, read: 'Employees of McLean Contracting Co. do not receive union wages, benefits and conditions.--Baltimore Building and Construction Trades Council' and, at Locust Point, read the same except that Lawrence's name appeared instead of McLean's, although no employees of Lawrence then were on the job, the contract having been completed except for details to be later attended to. The pickets passed out leaflets, also headed 'Notice to the Public' which recited, over the signature of the Trades Council, that wages and conditions of employment of employees of McLean or Lawrence, depending on the terminal at which they were distributed, were below those the Union had established and was attempting to establish in the area for similar work, and gave various specific examples. The handbills then said:

'The sole purpose of patrolling this site is to inform the public that McLean Contracting Co. is not paying the prevailing rate of pay nor providing the prevailing conditions of employment to its employees.

'THIS NOTICE IS ADDRESSED ONLY TO THE PUBLIC. IT IS NOT ADDRESSED TO ANY EMPLOYER OR TO ANY EMPLOYEES. We are not attempting to organize employees of McLean Contracting Co. nor are we attempting to obtain recognition or bargaining for them. Nor is there any intent or attempt to induce or encourage any employee of any employer to refuse to work, transport or otherwise handle or work on any materials, etc. No one is requested to cease doing business with any person.

'We believe that the public should be familiar with what is going on and that is the sole purpose of the patrolling.'

At first the pickets at the gates of the terminals permitted trucks bringing in export freight or coming to pick up imports to pass without protest. On Wednesday, May 13, they began to turn trucks back by holding up a sign 'Call EA 7-3700.' Most of the truck drivers would stop, leave their trucks to make a telephone call and then drive away without entering the terminal. On the afternoon of May 13, some one hundred forty trucks drove up to the gate at Locust Point and only about forty crossed the picket line. An employee of the Authority called EA 7-3700 on the morning of May 13, pretending to be a truck driver asking for instructions, and was advised that he had called Freight Drivers and Helpers Local No. 557 and was told to use his own judgment whether to cross the picket line, but that he would be protected in his job if he refused to do so. He called again in the afternoon and was told not to cross the line.

On Tuesday, May 12, the day the picketing began at the terminal gates, the Trades Council stationed a picket boat in the harbor off the Dundalk terminal. On that day the crew--members of the Seafarers International Union--of one of two tugs dispatched by their owner, the Curtis Bay Towing Co., to assist in docking the SS Ames Victory at Dundalk, refused to pass the picket boat. The following day the ship was assisted by tugs in leaving the Authority's pier only after the president of the Trades Council withdrew the picket boat because the Ames Victory was carrying military cargo.

On May 13 the SS Argentina, a cruise ship returning from Bermuda--on which, among many other holiday passengers, was the Governor of Maryland--had to be diverted from its intended dock at the Dundalk terminal to Pier 1 of the Pennsylvania Railroad Company, with much attendant delay, frustration and confusion to the homecoming passengers, because the port agent of the Seafarers Union advised the Curtis Bay Towing Company that his Union considered the picket boat to have established 'a legitimate picket line.' He said he had so advised the employees of the towing company (who were members of his Union) and that good union men would not cross a legitimate picket line.

The preliminary restraining order was issued shortly after noon on May 14 by Judge Barnes, and a hearing was held on May 15, at which the testimony produced by the Authority, summarized above, was received. Judge Barnes made findings that '* * * the purpose of the picket signs and the notice to the public used by the Baltimore Trades Council was to tie up the facilities of the Authority and to force the Authority to insert a prevailing wage clause in its construction contracts, * * *. Although the 'Notice to the Public' is carefully drawn to indicate that its purpose is to inform the public only, its real purpose was to prevent the use of the Authority's facilities and this purpose was accomplished.'

Both sides agree that facets of interstate commerce necessary as a basis for federal jurisdiction are here present, and the picketing both on land and water was always peaceful; but the Authority seizes on the findings of Judge Barnes as demonstrable reasons why the federal labor laws do not control. It argues first that picketing a state agency to close down its activities...