Cosentino v. LOCAL 28, INTERNAT'L ORGAN. OF MASTERS, ETC., 16161.

• Decision Date: 20 July 1959
• Docket Number: No. 16161.,16161.
• Citation: 268 F.2d 648
• Parties: Salvatore COSENTINO, Regional Director of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Appellant, v. LOCAL 28, INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS, AFL-CIO, and E. A. Adams and Harry Rutan, its agents, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

268 F.2d 648 (1959)

Salvatore COSENTINO, Regional Director of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Appellant, v. LOCAL 28, INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS, AFL-CIO, and E. A. Adams and Harry Rutan, its agents, Appellees.

No. 16161.

United States Court of Appeals Eighth Circuit.

July 20, 1959.

Norton J. Come, Deputy Asst. Gen. Counsel, N. L. R. B. Washington, D. C. (Jerome D. Fenton, Gen. Counsel, Thomas J. McDermott, Assoc. Gen. Counsel, Winthrop A. Johns, Asst. Gen. Counsel, and Joseph I. Nachman and Fred S. Landess, Attys. N. L. R. B., Washington, D. C., were with him on the brief), for appellant.

Mozart G. Ratner, Chicago, Ill. (Jacobs & Ratner, Chicago, Ill., were with him on the brief), for appellees.

Before SANBORN, VAN OOSTERHOUT, and MATTHES, Circuit Judges.

MATTHES, Circuit Judge.

The sole question for determination on this appeal is the effect of an order entered on August 26, 1958, by Judge Joseph Samuel Perry, of the United States District Court for the Northern District of Illinois, Eastern Division. Madden v. International Organization of Masters, etc., 166 F.Supp. 862. This order dismissed a prior suit instituted on behalf of the National Labor Relations Board (hereinafter referred to as "Board"), Thirteenth Region, seeking an injunction under § 10 (l) of the National Labor Relations Act, as amended,¹ against the International Organization of Masters, Mates and Pilots, Inc., AFLCIO, and Locals 28 and 3, and Harry Rutan, their agent (for brevity, sometimes referred to collectively as "Union"). The acts complained of concerned picketing around property of The Texas Company in Indiana and Illinois, arising from a labor dispute between Union and Ingram Barge Company.

Subsequent to this dismissal, and on December 11, 1958, Salvatore Cosentino, Regional Director of the Fourteenth Region of the Board, filed the petition giving rise to this appeal in the United States District Court for the Eastern District of Missouri, seeking an injunction under § 10(l) of the Act. Although this suit involved picketing of Globe Fuel Products, Inc., in Chicago, Illinois, Commercial Barge Lines in St. Louis, Missouri, and The Texas Company in St. Paul, Minnesota, the complained of acts arose from the same labor dispute between Union and Ingram Barge Company. Following an order to show cause, appellees, respondents below, filed their motion to dismiss the petition on the ground, inter alia, that Judge Perry's order constituted a dismissal with prejudice, and that application of res judicata principles barred petitioner's right to an injunction in this case. The District Court agreed, sustained the motion, and dismissed the Board's petition. From that order, an appeal was perfected to this Court.

Since Judge Perry's order is the focal point of this controversy, we review the circumstances under which it was entered. As a defense to the Board's petition, Union alleged that the Board had not conducted a preliminary investigation prior to filing charges, as required by § 10(l) of the Act and Section 101.4 of the Board's Statements of Procedures. Ross M. Madden, Regional Director, Thirteenth Region, refused to testify or to produce subpoenaed documents concerning this preliminary investigation, and thereupon, Judge Perry entered the order of dismissal.² From that order, the Regional Director appealed to the United States Court of Appeals, Seventh Circuit. Before final determination in that Court, the Board, through counsel, filed a motion to dismiss the appeal. In summary, the motion admitted that the procedures prescribed for investigation of charges in § 10(l) cases, as provided in the Board's published Statements of Procedures, were not followed.³ On October 2, 1958, this motion was sustained, and the appeal dismissed. See Madden v. International Organization, etc., 7 Cir., 259 F.2d 297, at pages 299-300, where the Court stated: "The appeal is dismissed because this Court finds the Board failed to comply with its own procedures and not because counsel decided to take the case out of our hands."

On October 7, 1958, pursuant to "Emergency Motion for Supplemental Findings of Fact and Conclusions of Law", filed by Union, Judge Perry entered supplemental findings and conclusions. See Madden v. International Organization of Masters, etc., supra, 166 F.Supp. 862, at pages 864-865. The substance of the findings was that Local 28 is an organization composed exclusively of persons who are supervisors within the meaning of Section 2(11) of the Act; that the picketing by Local 28 was carried on exclusively on its own behalf; that Local 3 had terminated its strike against Ingram Barge Company. Upon these additional findings of fact, the Court made these conclusions of law: Local 28 is not a "labor organization" within the meaning of the Act; Local 28, in picketing, did not act as agent of any labor organization within the meaning of the Act; and that the picketing by Locals 28 and 3 complained of was primary rather than secondary, and not proscribed by the Act. These supplemental findings were, in effect, designed to operate as a complete adjudication on the merits, and on November 26, 1958, the Board filed a petition for writ of mandamus in the United States Court of Appeals for the Seventh Circuit, to compel Judge Perry to vacate these supplemental findings and conclusions of law.

We leave the events in the Seventh Circuit for a moment, and turn again to the proceeding before us. While the petition for mandamus was pending before the Court of Appeals, Seventh Circuit, the petition for injunction in this case was filed. Here, the Board alleged that on November 19, 1958, Ingram Barge Company filed a charge with the Fourteenth Region of the Board, asserting that Local 28, and its agents, E. A. Adams and Harry Rutan were engaging in unfair labor practices within the meaning of Section 8(b) (4) (A) of the Act picketing of Commercial Barge Lines, Inc.; that on November 7, 1958, Ingram filed an amended charge with the Thirteenth Region of the Board, alleging that the same Local and its agent, Harry Rutan, were engaging in unfair labor practices picketing of Globe Fuel Products Company; that on November 24, 1958, Ingram filed another charge with the Eighteenth Region of the Board, alleging that the same local and its agents, E. A. Adams and Harry Rutan, were engaging in unfair labor practices picketing of The Texas Company; and that the charges filed with the Thirteenth and Eighteenth Regions had been transferred to the Fourteenth Region.

It appears from the record of the argument on the motion to dismiss, and from the order dismissing the petition, that the Hon. Roy W. Harper, Judge, United States District Court, Eastern District of Missouri, entertained the view that the alleged unfair labor practices forming the basis of this action, although subsequent in point of time, were the same as the charges upon which the prior (Illinois) proceeding were bottomed, in that, concededly, they had their source in the same labor dispute; that notwithstanding the fact that the instant unfair labor charges were initiated by different parties, this action is substantially between the same parties to the prior (Illinois) litigation. In construing Judge Perry's order of dismissal as being based on the failure to comply with the subpoena duces tecum issued in that action, Judge Harper observed that "under Rule 41(b) of the Federal Rules of Civil Procedure (28 U.S.C.A.) dismissal of an action for failure to comply with an order of the court operates as an adjudication upon the merits unless the order for dismissal otherwise specifies." So positioning himself, Judge Harper was of the opinion that the order of dismissal operated as a bar to this action.

On February 27, 1959, and subsequent to entry of the order of dismissal by Judge Harper, and appeal therefrom to this Court, the Court of Appeals for the Seventh Circuit entered its judgment in the mandamus proceeding, Madden v. Perry, 264 F.2d 169, certiorari denied 1959, 79 S.Ct. 1450. It appears that the answer filed on behalf of Judge Perry reviewed the proceedings in Judge Perry's Court relating to the action for injunction, and alleged that the order dismissing the petition operated as an adjudication on the merits; that to protect and...