Cosentino v. UNITED BROTHERHOOD OF CARPENTERS, ETC.

• Decision Date: 10 April 1959
• Docket Number: No. 12518.,12518.
• Citation: 265 F.2d 327
• Parties: Salvatore COSENTINO, Regional Director of the Fourteenth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner-Appellee, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, and Its Agent, J. Earl Welch, et al., Respondents-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

265 F.2d 327 (1959)

Salvatore COSENTINO, Regional Director of the Fourteenth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner-Appellee, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, and Its Agent, J. Earl Welch, et al., Respondents-Appellants.

No. 12518.

United States Court of Appeals Seventh Circuit.

April 10, 1959.

Harold G. Talley, Alton, Ill., Francis X. Ward, Indianapolis, Ind., Michael M. Kinney, Wood River, Ill. (William A. McGowan, Indianapolis, Ind., on the brief), for appellant.

Thomas J. McDermott, Assoc. Gen. Counsel, Winthrop A. Johns, Asst. Gen. Counsel, National Labor Relations Board, Washington, D. C. (Jerome D. Fenton, General Counsel, Jacques Schurre, Attorney, National Labor Relations Board, Washington, D. C.), for appellee.

Before DUFFY, Chief Judge, and SCHNACKENBERG and PARKINSON, Circuit Judges.

DUFFY, Chief Judge.

This is a secondary boycott case. Under Section 10(l) of the National Labor Relations Act, 61 Stat. 136, 29 U.S.C.A. § 141 et seq., the National Labor Relations Board petitioned the District Court for a temporary injunction enjoining and restraining respondents from engaging in a charged and alleged unfair labor practice, pending the hearing of such charge on the merits by the Labor Board.¹ After a hearing, the District Court, on August 21, 1958, entered Findings of Fact and Conclusions of Law and an Order granting temporary injunction. This appeal is from portions of the injunctional order.

The petition for an injunction was predicated on an amended charge by Midwest Homes, Inc. (Midwest) alleging United Brotherhood of Carpenters and Joiners of America, AFL-CIO (International) and its agent Welch, et al. had engaged in and were engaging in unfair labor practices proscribed by Section 8 (b) (4) (A) of the Act.

Midwest is engaged in Mattoon, Illinois and Erie, Pennsylvania, in the manufacture, sale and erection of prefabricated homes. Its carpenters at the Mattoon plant have been represented by Local 347 (Carpenters) since 1952; respondent Local 269 (Carpenters) is located at Danville, Illinois. Respondent Local 505 (Carpenters) is located at Litchfield, Illinois.

Andersen Corporation (Andersen) is a Minnesota corporation whose principal offices are located at Bayport, Minnesota, and is engaged in the manufacture and sale of wooden window units. For more than five years prior to the occurrences hereinafter narrated, Midwest has purchased and used window units manufactured by Andersen. The employees of Andersen are not members of International or of any local affiliated with International. Andersen's products do not bear the Union Label issued by International.

Under the collective bargaining agreement between Midwest and Local 347, the latter agreed to furnish the use of the Union Label of the United Brotherhood for the stamping of "all goods manufactured" by Midwest. The Union Label is a rubber stamp retained by the Union steward for the stamping of manufactured materials and sections before they leave the Midwest plant. The constitution of International provides that such labels shall be used solely in shops which "employ only members of the United Brotherhood" and that "it shall be the duty of the Steward to see that said label * * * shall not be placed on any manufactured article other than that which is made under the agreement."

United Brotherhood's constitution and laws require members of one local to secure a permit to work temporarily within the jurisdiction of another Local. Pursuant to this requirement, Midwest employees have customarily applied for and secured such work permits when assigned to erect a Midwest home within the jurisdiction of a sister Local.

On June 4, 1958, appellant Welch, a representative of International and Kingery, Business Agent for Local 347, visited Midwest's plant at Mattoon to ascertain whether Midwest was using nonunion mill work. When Midwest admitted it was using and for years had used windows manufactured by Andersen, Welch stated he was going to take the union label from Midwest adding that Midwest could have the label back when it ceased using Andersen's non-union windows. Thereafter, the two union agents obtained the label stamp from the Steward telling him in the presence of six to ten Midwest employees that they were "pulling" the label because of the use of Andersen windows.

At a meeting held July 12, 1958, Carpenter business agents in the area were instructed not to issue permits to Midwest's employees or furnish carpenters to work on Midwest's homes because Midwest's union label had been pulled. Two days later, Local 505 refused to issue a permit to erect a house at Litchfield. On July 17, Local 505 agreed to issue work permits, but warned Midwest's employees they would be fined, and their union books withdrawn if they tried to erect Midwest houses. After this threat Midwest's employees did not attempt to erect the Litchfield house.

At a meeting held July 18, Welch informed Midwest employees that the union label had been taken away from Midwest because it was using material which did not bear the union stamp, and warned Midwest employees they would be fined and have their union cards "jerked" if they continued to erect Midwest houses. Welch stated if Midwest would "get rid of" the "non-union mill work" the union label would be restored. After this meeting, Midwest employees refused to erect Midwest houses.

On July 21, Welch as president of the Union's State Council, advised all carpenters' subordinate unions in the state by letter that the union labels of Midwest and of another manufacturer of prefabricated buildings, Auburn Homes, Inc., had been withdrawn and that members of the International were not employed at Sheffield Door Company, a manufacturer of overhead doors. Welch requested that the letter be read in open union meetings. The District Court found that International withdrew its union label because of Midwest's use of window units manufactured by Andersen; that appellants refused to issue work permits to Midwest employees; that the object of the conduct of appellants was to "force or require Midwest, and other employers and persons, to cease using, selling, handling, transporting, or otherwise dealing in the products of, and to cease doing business with, Andersen, or any other producer, processor or manufacturer whose products do not bear the union label issued by * * * International." The Court further found a likelihood that appellants would repeat and continue their conduct unless restrained.

The District Court issued a temporary injunction pending final disposition of the proceeding before the Labor Board. Therein the respondents-appellants were enjoined from a) Ordering, directing, instructing, requesting or appealing to employees of Midwest to refuse to handle, work on, or install window units or other products manufactured by Andersen Corporation; b) Refusing to issue work permits to employees of Midwest; c) In any manner, such as by threats of union disciplinary action, refusal to...