Douds v. International Longshoremen's Ass'n

• Decision Date: 15 March 1957
• Docket Number: Docket 24277.,No. 154,154
• Citation: 242 F.2d 808
• 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-Appellant, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, Ind., Marine Terminal & Warehouse Local 976-4, International Longshoremen's Association, Ind., Local 1277, International Longshoremen's Association, Ind., and Local 1804, International Longshoremen's Association, Ind., Respondents-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

242 F.2d 808 (1957)

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-Appellant, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, Ind., Marine Terminal & Warehouse Local 976-4, International Longshoremen's Association, Ind., Local 1277, International Longshoremen's Association, Ind., and Local 1804, International Longshoremen's Association, Ind., Respondents-Appellees.

No. 154, Docket 24277.

United States Court of Appeals Second Circuit.

Argued January 16, 1957.

Decided March 15, 1957.

Jerome D. Fenton, General Counsel Theophil C. Kammholz, General Counsel, Stephen Leonard, Associate General Counsel, Washington, D. C. (Winthrop A. Johns, Asst. General Counsel, of counsel), William W. Kapell, Philadelphia, Pa., and Walter N. Moldawer, Attorneys, National Labor Relations Board, Washington, D. C., for petitioner-appellant.

John T. Sullivan, New York City, for respondents-appellees.

Before MEDINA and HINCKS, Circuit Judges, and LEIBELL, District Judge.

MEDINA, Circuit Judge.

An amended charge having been filed with the National Labor Relations Board against appellees charging the unions with unfair labor practices proscribed by Section 8(b) (4) (D) and affecting commerce within the meaning of Sections 2 (6) and (7) of the National Labor Relations Act, 29 U.S.C.A. §§ 152(6), 157, 158 (b) (4) (D), the Board, after investigation, concluded that there was reasonable cause to believe that the unions had engaged in the unfair labor practices charged. Accordingly, the Board applied to the United States District Court for the Eastern District of New York, where the alleged unfair labor practices were committed, for an injunction, as provided in Section 10(l) of the Act, 29 U.S.C.A. § 160(l). The injunction was denied and the Board appeals. We think it clear that the application for the injunction should have been granted and we reverse the order with a direction that the injunction be issued forthwith.

Bush Terminal Company owns eight piers and related terminal facilities on the waterfront in Brooklyn, New York, which it leases to steamship and stevedoring companies. The cargo moved annually through these facilities into the stream of interstate and foreign commerce has a value of many millions of dollars.

In April, 1956, Bush Terminal entered into an agreement with Abraham Kaplan, a painting contractor and a member of Associated Painting Employers of Brooklyn, Inc., and Local Union No. 645, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO; and thereafter the painters proceeded to do the work thus contracted for.

On June 6, 1956, the ILA and its Local unions, appellees herein, demanded that the work be turned over to its members. When Kaplan refused, about 14 to 16 of the ILA men, led by Tony Anastasia, vice-president of the Longshoremen's Union, and Henry Wallace, business agent of appellee Local 976-4, went on Pier # 7, where two of Kaplan's men were on their scaffold painting, and in no uncertain terms Kaplan's men were ordered to "get off the pier." The expulsion of these men was accompanied by the threat that if Kaplan's men resumed work the pier would be picketed. Having little alternative under these circumstances, Kaplan suspended painting at the pier and a charge of unfair labor practices, as above noted, was filed with the Board. When the Board conducted its investigation there was little or no dispute over the fact that Kaplan's men were ordered off the pier and prosecution of the work under his contract by Kaplan made impossible by the threat to picket the pier. Indeed, there was reason to suppose that all work at Bush Terminal might be held up by a strike.

It was the contention of the ILA that it had a collective bargaining agreement with Bush Terminal which provided:

"It is the intent and purpose of the Company and the Union that this agreement should promote a mutually beneficial and harmonious relationship, establish orderly procedures for the adjustment and settlement of disputes, and provide for uninterrupted conduct of the Company\'s operations in accordance with the customs and practices heretofore established and now in effect, not inconsistent with this agreement."

And the ILA asserted that, according to the "customs and practices" of the past, its men had, over the years, done all the maintenance work at the piers, including the painting. But this is the very matter which it is the function of the Board ultimately to determine and the Board in this proceeding has taken the position that the claims of ILA are unfounded in fact. The District Court, moreover, on the record before us had no alternative other than to find that there is more than enough evidence to demonstrate that there was basis for the Board's finding that it had "reasonable cause to believe" that the "charge" filed by the Painters' Union is true. It is settled law that no more is required on this phase of the case. Douds v. International Longshoremen's Ass'n, Independent, 2 Cir., 241 F. 2d 278; Douds v. Local 50, etc., 2 Cir., 224 F.2d 49; United Brotherhood of Carpenters, etc. v. Sperry, 10 Cir., 170 F. 2d 863. Nor can it be denied that if the facts alleged by the Board are true the ILA is guilty of an unfair labor practice in violation of Section 8(b) (4) (D). International Longshoremen's Union v. Juneau Spruce Corp., 342 U.S. 237, 72 S.Ct. 235, 96 L.Ed. 275.

Jurisdictional disputes have been so detrimental to the public interest, as well as violative of private rights, that the injunctive procedure which the Board seeks to invoke here was provided in order "adequately to protect the public welfare"¹ and to preserve the integrity of the procedure before the Board, which is the tribunal designated by the Congress to determine precisely such questions as are propounded by the assertion by the ILA that its members did the painting work on the piers, by the "customs and practices" of the past, and the denial of this assertion made by the Painters' Union. It was not for the District Court to resolve this issue nor did the District Court undertake to do so.

The remaining requirement of Section 10(l) is that the issuance of the injunction under the circumstances be "appropriate" and "just and proper."

On the very face of the matter there can be no reasonable dispute about the fact that an injunction would be "appropriate." In our opinion it is equally clear that it would be "just and proper." Indeed, a refusal to grant injunctive relief against such strong arm methods as were resorted to here might well be construed as an invitation to others to flout the procedures adopted by the Board to give effect to the mandates of the statute.

Although the court below seems to have recognized that what appellees had done, according to the allegations of the Board, was clearly an unfair labor practice by the unions, and that "Bush undoubtedly was faced with a possible strike," it evidently thought the dispute too trivial to warrant interference by injunction. It held that there was no sufficient showing that commerce would be affected "or that the public interest at the moment is...