Danielson v. Local 275, Laborers Int. U. of No. Amer.

• Decision Date: 31 May 1973
• Docket Number: Docket 73-1518.,No. 972,972
• Citation: 479 F.2d 1033
• Parties: Sidney DANIELSON, Regional Director of the Second Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner-Appellant, v. LOCAL 275, LABORERS INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO et al., Respondents-Appellees, and Local 323, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

479 F.2d 1033 (1973)

Sidney DANIELSON, Regional Director of the Second Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner-Appellant, v. LOCAL 275, LABORERS INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO et al., Respondents-Appellees, and Local 323, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Respondent.

No. 972, Docket 73-1518.

United States Court of Appeals, Second Circuit.

Argued May 10, 1973.

Decided May 31, 1973.

Marvin Roth, Supervisory Atty., N.L. R.B. (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Julius G. Serot, Sp. Counsel to the Gen. Counsel, and Michael A. Caldwell, Atty., N.L. R.B., of counsel), for petitioner-appellant.

Ralph P. Katz, New York City (Delson & Gordon, New York City, of counsel), for respondents-appellees.

Before SMITH, MULLIGAN and TIMBERS, Circuit Judges.

MULLIGAN, Circuit Judge:

This is an appeal from an order of the United States District Court for the Southern District of New York which denied a petition of Sidney Danielson, Regional Director of the National Labor Relations Board (the Board) for a preliminary injunction pursuant to Section 10(l) of the National Labor Relations Act, 29 U.S.C. § 160(l) (the Act). The Hon. Lawrence W. Pierce, District Judge, after a five day hearing, entered an order denying the petition on March 16, 1973 based upon findings of fact and conclusions of law included in his memorandum opinion filed on the same day.

The petition for the Section 10(l) injunction filed on January 29, 1973 was precipitated by a charge filed with the Board on January 10, 1973 by S.B. Apartments, Inc. (S.B.) alleging that Local 275, Laborers International Union of North America, AFL-CIO; Painters District Council No. 20 of Westchester and Putnam Counties, New York, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO; Local 55, Bricklayers, Masons and Plasterers; and Local 323, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, had engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(7)(C) of the Act, 29 U.S.C. § 158(b)(7)(C). This Section, in essence, proscribes recognitional or organizational picketing for more than 30 days without filing with the Board a petition for an election under Section 9(c) of the Act, 29 U.S.C. § 159(c). No such petition has been filed. After investigation, the Regional Director concluded that there was reasonable cause to believe that the Unions were engaging in the unfair labor practices charged and that a complaint should issue. Accordingly, the Regional Director filed the petition in the District Court for injunctive relief pursuant to Section 10(l) of the Act, pending final disposition by the Board of the unfair labor practice charge. The Unions filed answers which denied the allegations of the petition. The Board has not finally adjudicated the charges.

S.B., the charging party, is the owner of real estate in Cold Spring, New York, where a 63 unit garden apartment complex is being constructed by James A. Klein, Inc. (Klein), a general contractor. Klein and S.B. (collectively referred to as the Employer) are commonly owned and controlled and constitute a single, integrated business enterprise. On October 31, 1972 the representatives of the Employer met in a pre-job conference with the Unions who stated that the job site had to be completely unionized and sought unsuccessfully to have the Employer sign a collective bargaining agreement. On November 1, 1972 the Unions began picketing the job site with between 2 and 200 pickets. The picketing by the Unions¹ has been continuous except for a two week period in late March, 1973, and is still continuing. No petition for an election has been filed with the Board and no charge is before the Board under Section 8(a)(2) of the Act, 29 U.S.C. § 158(a)(2), alleging that the Employer has unlawfully recognized or assisted any labor organization. None of the Unions are now certified as bargaining representatives of any employees of the Employer. On this basis the Regional Director contended that the picketing was not for informational purposes but had as its object forced recognition or bargaining by the Employer with the Unions and forced acceptance by the employees of the Unions as their bargaining agents. The Court below found that the Regional Director has reasonable cause to believe that the Unions have engaged and are engaging in unfair labor practices in violation of Section 8(b)(7)(C) of the Act. Moreover the Court rejected the Unions' claims that the picketing was informational and educational stating:

the picture that emerges to this Court is clearly one of a series of coercive tactics designed to achieve organizational and recognitional objects. The petitioner\'s claim that the charging party has been subjected to a campaign of harassment is an accurate assessment of the events which followed the October 31st meeting when the employer refused to agree to the job being 100% union.

Despite these findings of reasonable cause, the lower Court refused to enjoin the union activity on the ground that in a 10(l) proceeding general equitable principles must be applied and since it found no "irreparable" damage, the Court concluded that it would not be "just and proper" to issue the extraordinary relief of a preliminary injunction. McLeod v. Local 25, IBEW, 344 F.2d 634 (2d Cir. 1965). We reverse and remand for the entry of a preliminary injunction enjoining the unfair labor practices charged pending disposition of the charges before the Board.

On appeal there is no question of jurisdiction raised nor have the Unions raised any issue with respect to the propriety of the finding that the Regional Director had reasonable cause to believe that the Unions were engaged in unfair labor practices in violation of Section 8(b)(7)(C) of the Act. The sole issue posed by the parties is whether the issuance of a preliminary injunction under Section 10(l) depends upon the application of general equitable principles which the Court below interpreted to require a showing of irreparable harm to the Employer, or whether as the Regional Director contends the irreparable harm concept applicable in private actions is not pertinent in a Section 10 (l) case. The Regional Director reasons that the purpose of 10(l) was not to prevent irreparable damage to the Employer but to protect the public interest in maintaining the free flow of commerce and to encourage collective bargaining.

The Supreme Court has not yet passed upon the criteria for granting a preliminary injunction under either Section 10(j) or 10(l).² In McLeod v. Local 25, IBEW, supra, 344 F.2d at 638, this Court in discussing the question stated:

In § 10(l) proceedings the function of the federal district court consists of determining (1) whether the temporary injunctive relief would be "just and proper" in terms of general equitable principles and (2) whether there is "reasonable cause" for the Regional Director "to believe such unfair labor practice charge is true and that a complaint should issue."

We see no reason here to depart from this statement of the law. Section 10 (l) in haec verba provides that the District Court shall have jurisdiction to grant such injunctive relief "as it deems just and proper." The Section therefore does not mandate the preliminary injunction simply because the District Court concludes that the Regional Director has reasonable ground to believe that an unfair labor practice has occurred. The Act gives the Court discretion by employing the "just and proper" language. See United Brotherhood of Carpenters & Joiners v. Sperry, 170 F.2d 863, 869 (10th Cir. 1948). In Local 25, supra, our Court simply held that in applying the "just and proper" norm the District Court should be guided by the application of general equitable principles. We see no impropriety in this since the District Court albeit authorized by the statute to grant injunctive relief, is exercising its equity powers.

We see no point in now deciding whether irreparable harm to the Employer must always be shown in a Section 10(l) case because in any event there was a clear showing of substantial and irreparable harm to the Employer which under any construction of the Act should have resulted in the issuance of the preliminary injunction sought by the Regional Director.³

We believe that the Court below was perhaps misled not by the language we have quoted from Local 25 which stated that "general equitable principles" must be applied, but by the further statement in that case that Local 25's picketing "posed an imminent threat of irreparable injury, viz., halting the construction of the additional wing of the hospital." 344 F.2d at 639. We cannot read this language as implying that anything less than a total work stoppage does not amount to irreparable injury. The Court below found that construction at the job site was not substantially halted; however, that the progress of the work was delayed and that extra expense was incurred and prospective rentals lost, emerges clearly from the other findings of the Court and the record before us.

Thus the Court found that on four separate dates in December the respondent Unions in concert blocked entrances and exits to the job sites and prevented employees from entering and leaving the job site; on two occasions a truck driver was prevented from making a delivery of supplies to the site; truck drivers from two other suppliers were blocked from making deliveries until police moved the pickets out of the way; extra costs of over $4000 are estimated by the Employer. In...