Douds v. INTERNATIONAL LONGSHOREMEN'S ASS'N, INDEPEND.

• Decision Date: 12 December 1956
• Citation: 147 F. Supp. 103
• Parties: Charles T. DOUDS, Regional Director of the Second Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, INDEPENDENT, and William V. Bradley, Its President, and Patrick J. Connolly, Its Executive Vice President and Chairman of Its Wage Scale Committee, Atlantic Coast District, Respondents.
• Court: U.S. District Court — Southern District of New York

147 F. Supp. 103

Charles T. DOUDS, Regional Director of the Second Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, INDEPENDENT, and William V. Bradley, Its President, and Patrick J. Connolly, Its Executive Vice President and Chairman of Its Wage Scale Committee, Atlantic Coast District, Respondents.

United States District Court S. D. New York.

December 12, 1956.

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Joseph I. Nachman, Sidney Danielson, Washington, D. C., John J. Cuneo, New York City, for petitioner.

Waldman & Waldman, New York City, for respondents, Louis Waldman, Seymour Waldman and Martin Markson, New York City, of counsel.

Lorenz, Finn & Giardino, New York City, amicus curiae, for New York Shipping Ass'n, Alfred Giardino, C. P. Lambos, New York City, of counsel.

FREDERICK VAN PELT BRYAN, District Judge.

This is a petition for a temporary injunction brought by the National Labor Relations Board, pursuant to Section 10 (j) of the National Labor Relations Act (hereinafter called the Act), as amended, 29 U.S.C.A. § 160(j). That section gives this Court jurisdiction to grant a temporary injunction pending a disposition by the Board of a complaint issued by it charging that the respondents are engaging in an unfair labor practice under Section 8(b) (3) of the Act, 29 U.S.C.A. § 158(b) (3). Under Section 10(j) of the Act the Court is authorized to grant "such temporary relief or restraining order as it deems just and proper".

The petition was filed after a complaint had been issued by the Board, pursuant to Section 10(b) of the Act, 29 U.S.C.A. § 160(b), upon a charge filed by the New York Shipping Association (hereinafter called Association), which alleged that the respondent Union (hereinafter called ILA) and its officers were engaging in an unfair labor practice by refusing to bargain with the Association, representing the employers, in the unit certified by the Board as the appropriate collective bargaining unit, in this case the Port of Greater New York and vicinity.

On November 21, 1956 I signed a temporary restraining order pending a hearing before the Court as to the facts. The sole issue to be determined is whether there was reasonable cause to believe that the violation of the Act, as set forth in the complaint, has been committed. Bowles v. Montgomery Ward & Co., 7 Cir., 143 F.2d 38, 42. It does not involve a determination as to the ultimate merits of the complaint, that question being one to be determined by the Board itself.

At the hearing a full and complete picture was presented of the negotiations between the Association and the ILA which led to the complaint issued by the Board. While some specific facts, as well as the legal consequences of the parties' respective positions in the negotiations, were in dispute, there was no real controversy over the course and tenor of the negotiations.

These negotiations were commenced by the Association and the ILA on August 1, 1956 in an endeavor to arrive at a new collective bargaining agreement to replace a 2-year agreement which was due to expire on September 30, 1956. The old agreement covered only employees in the Port of Greater New York and vicinity. This area had been designated by the Board in 1953 as the appropriate bargaining unit.

Throughout the negotiations, however, the ILA included, among other demands, a demand that the negotiations be carried on for employees who were not within the unit of the Port of Greater New York and vicinity. In the early part of the negotiations this demand was, in substance, that negotiations on such major issues as wages and hours, among others, be for all ports from Portland, Maine, to Brownsville, Texas.

On July 31, 1956 the International Brotherhood of Longshoremen (AFL), a rival of the ILA, had filed a petition with the Board for a new election to determine the Union representative of the employees in the Greater New York unit. Such an election was duly held on October 17, 1956 by the Board and the ILA was successful. On October 25, 1956 the Board again certified the ILA as the representative for collective bargaining of the employees in the Port of Greater New York and vicinity, which, on September 24, 1956, it had found to be the appropriate bargaining unit.

The negotiations between the parties proceeded while this election and certification was going on. Subsequent to the election, but prior to the certification, the ILA modified its demand to bargain for all employees in all ports from Portland, Maine, to Brownsville, Texas, to a demand that negotiations on the major issues between the parties include only all employees of the employer members of the Association in such ports. This demand, if granted, would have resulted in an agreement covering not only all employees in the Port of Greater New York, but also all other employees of Association members who were employed in other ports from Portland, Maine, to Brownsville, Texas.

Both the original demand and the modified demand were rejected by the Association, which insisted upon negotiating solely for the Port of New York unit. The Union continued to insist on its modified demand for coast-wide bargaining subsequent to the certification by the Board on October 25, 1956. The Association continued to reject this demand.

On November 15, negotiations reached an impasse and a strike was called by the ILA in all Atlantic and Gulf Coast ports. Negotiations were held by the parties even subsequent to the strike, but their respective positions have remained unchanged until the present date.¹

On October 23, 1956 the Association filed a charge of unfair labor practices with the Board, alleging that the ILA's demand for coast-wide bargaining constituted a refusal to bargain in good faith in the bargaining unit certified by the Board, in violation of Section 8(b) (3) of the Act. After investigating this charge the Board issued a complaint on November 21, 1956 and petitioned this Court for a temporary injunction.

Two preliminary questions must be disposed of before I can turn to the merits of the petition.

The ILA contends that the conditions prescribed in Sections 10(j) and 10(b) of the Act have not been complied with and this Court therefore has no jurisdiction to entertain the petition for a temporary injunction. Section 10(j) provides that the issuance of a complaint by the Board charging an unfair labor practice is a condition precedent to the jurisdiction of this Court to entertain a petition by the Board for temporary relief. Section 10 (b) provides that the Board may not issue a complaint on its own motion, but that a charge must theretofore have been filed with it that an unfair labor practice existed.

The ILA asserts that the charge filed against it by the Association was wholly void and without effect since on its face it showed that the Union was not violating any duty to bargain. It argues therefore that the complaint issued by the Board was a nullity since no valid charge of an unfair labor practice had ever been filed with the Board.

To understand this attack on the court's jurisdiction it is necessary to return briefly to the facts. As has been pointed out, since July 31, 1956, the day before the ILA and the Association commenced their negotiations, a petition was pending before the Board for an election to determine whether the ILA should be certified as the bargaining representative for the employees in the Port of Greater New York. Until that election was held and the ILA was certified as the bargaining representative on October 25, 1956, no duty to bargain existed on the part of either the ILA or the Association. All such obligations were suspended pending determination by the Board of who the bargaining representative of the employees should be. Midwest Piping and Supply Co., 63 N.L. R.B. 1060; National Carbon Division, 104 N.L.R.B. 416.

The charge against the ILA of refusal to bargain was filed on October 23, 1956 and covered only the period between August 1, 1956 and October 22, 1956, when the Union was under no duty to bargain. Hence, the ILA reasons that the charge on its face failed to show that the ILA had committed an unfair labor practice since it had, up to then, been under no obligation at all to bargain. It therefore argues that since the charge was a nullity the complaint was necessarily a nullity and that therefore this Court lacks jurisdiction.²

Under Section 10(b) of the Act, the Board may not initiate a complaint unless a charge has been filed with it. N. L. R. B. v. National Licorice Co., 2 Cir., 104 F.2d 655, affirmed, 309 U.S. 350, 60 S.Ct. 569, 84 L.Ed. 799. Furthermore, the Board may not issue a complaint when it is unrelated to the alleged unfair labor practices set forth in the charge filed with it. N. L. R. B. v. Kohler Co., 7 Cir., 220 F.2d 3, 7. But only to that extent does the charge limit powers of the Board to issue a complaint.

Numerous cases hold that the charge filed with the Board is not a pleading, but merely a procedural step necessary to set the Board's investigation in motion. Once a formal complaint is filed, the Board's complaint thereafter issued is valid if it deals with a violation related to the one involved in the charge and which grows out of it. National Licorice Co. v. N. L. R. B., 309 U.S. 350, 60 S.Ct. 569, 84 L.Ed. 799, affirming 2 Cir., 104 F.2d 655; N. L. R. B. v. Kohler Co., supra; N. L. R. B. v. Bradley Washfountain Co., 7 Cir., 192 F.2d 144, 149. As the Supreme Court stated in National Licorice Co. v. N. L. R. B., supra, 309 U. S. at page 369, 60 S.Ct. at page 579:

"Whatever restrictions the requirements of a charge may be thought to place upon subsequent proceedings by the Board, we can find no warrant in the language or purposes of the Act for saying that it precludes the Board from dealing adequately with unfair labor practices which are

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