Douds v. METROPOLITAN FEDERATION OF ARCHITECTS, ETC.

• Decision Date: 26 January 1948
• Docket Number: Civ. 44-215.
• Citation: 75 F. Supp. 672
• Parties: DOUDS v. METROPOLITAN FEDERATION OF ARCHITECTS, ENGINEERS, CHEMISTS & TECHNICIANS, LOCAL 231 et al.
• Court: U.S. District Court — Southern District of New York

75 F. Supp. 672

DOUDS v. METROPOLITAN FEDERATION OF ARCHITECTS, ENGINEERS, CHEMISTS & TECHNICIANS, LOCAL 231 et al.

Civ. 44-215.

District Court, S. D. New York.

January 26, 1948.

Reeves R. Hilton, of Washington, D. C., Jack Davis, of New York City, and Walter

M. Moldawer, of Philadelphia, Pa., for petitioner.

Neuburger, Shapiro, Rabinowitz & Boudin, of New York City, (Leonard B. Boudin, of New York City, of counsel), for respondent.

James L. Moore, of New York City, for Project Eng. Co., charging party.

Witt & Cammer, of New York City, amicus curiae.

White & Case, of New York City, amicus curiae.

McLanahan Merritt & Ingraham, and Walter Gordon Merritt, all of New York City, for Ebasco Services, Inc., amicus curiae.

RIFKIND, District Judge.

This is a petition brought by Charles T. Douds, Regional Director of the Second Region of the National Labor Relations Board to enjoin the respondent, Metropolitan Federation of Architects, Engineers, Chemists and Technicians, Local 231, United Office & Professional Workers of America, C. I. O., from engaging in certain activities alleged to be in violation of Section 8(b) (4) (A) of the National Labor Relations Act, as Amended by § 101 of the Labor Management Relations Act of 1947, Public Law 101, 80th Congress, popularly known as the Taft-Hartley Act, 29 U.S.C.A. § 158(b) (4) (A). Project Engineering Company, a partnership, is the "charging party," and has asked for, and received permission to intervene.

The relevant portions of the Act are set out in the margin.¹

The testimony offered by the petitioner, the respondent, and the charging party at the hearings established the following facts:

Ebasco Services, Inc. is a corporation engaged, since 1905, in the business of supplying engineering services, such as planning and designing and drafting plans, for industrial and public utility installations. During the year ending September 1, 1947, the respondent union was the bargaining agent for Ebasco's employees. On that day the agreement between Ebasco and the union expired. A new agreement was not reached and a strike against Ebasco was commenced on September 5, 1947.

James P. O'Donnell and Guy M. Barbolini in 1946 organized a partnership, styled Project Engineering Company, herein called "Project". Its business is identical with Ebasco's — planning and designing and drafting plans for industrial installations although they seem to have specialized in chemical and petroleum plants. The partnership had an inception completely independent of Ebasco or its influence. There is no common ownership of any kind. It was through Project's solicitations that Ebasco first employed the partnership. An open contract dated December 19, 1946 marked the beginning of their business relations.²

Prior to August, 1946, Ebasco never subcontracted any of its work. Subsequent to that date it subcontracted some of its work. At the time the strike was called, part of Ebasco's work had been let out to Project. An appreciable percentage of Project's business for some months antedating the strike consisted of work secured from Ebasco. After the strike had begun, an even greater percentage — about 75% — of its work was Ebasco's. Some work, which had been begun by Ebasco's workers, was transferred, after the commencement of the strike, in an unfinished condition to Project for completion.

In a brochure printed and distributed by Ebasco before the strike to its prospective customers, Ebasco represented itself as having available the services of a number of draftsmen and designers, which included the personnel of Project and of other subcontractors. The contract price of all the work done by Project for Ebasco was computed by adding to the compensation of the men engaged on Ebasco work a factor for overhead and profits. In their business relationship it was the practice of Project to furnish Ebasco with time sheets, showing the number of hours each of the former's employees spent on Ebasco work. Ebasco's statements to its customers contained the time spent by technicians, with no distinction made between the work done by Ebasco employees and subcontractors' employees.

Ebasco supervisory personnel made regular visits to Project to oversee the work on the subcontracts. After the strike was called and the work subcontracted increased, these visits increased in frequency and numbers of personnel involved. Ebasco supervisory personnel, whose subordinates were on strike, continued to supervise their "jobs", at Project's plant, where such work had been transferred. The working hours of Project employees were increased after the commencement of the Ebasco strike.

Delegations representing the respondent union approached the charging party on more than one occasion and asked, among other things, that it refuse to accept work which had come "off the boards" of Ebasco.

On October 28, 1947, respondent union ordered Project picketed and such picketing has continued since that day. The pickets carry signs which denominate Project a scab shop for Ebasco. A number of resignations at Project are attributable to the picketing.

The number of pickets has usually been reasonable and the picketing was ordinarily unaccompanied by violence. However, on a number of occasions, to wit, October 28, November 6 and November 25, there was picketing by 35 men or more. Such occasions were marked by pushing, kicking and blocking the entrance way to the building. Epithets such as "scab," "louse", "rat" and others were hurled at Project employees by the pickets. On those occasions the assistance of the police was requested by Project employees and order was promptly restored. Project continues to do engineering work for Ebasco — the kind of work which Ebasco employees themselves would be doing if they were not striking.

The Taft-Hartley Act has thus far had but little judicial attention. In the only case which has come to my attention in which the Act was applied, Douds v. Local 294, International Brotherhood of Teamsters, Chauffers, Warehousemen and Helpers of America, A. F. of L., D.C., 75 F. Supp. 414, decided December 31, 1947 in the Northern District of New York, the question which I consider crucial in this case was not discussed. No case thus far has reached an appellate court. Even cursory examination of the stated facts and the quoted portions of the Act reveals that the case bristles with questions of constitutional law, statutory construction and practical application. It is necessary in this instance to find the answers to but a few of these.

One of the prohibitions of Section 8(b) (4) (A) of the Act is: "It shall be an unfair labor practice for a labor organization * * * to * * * encourage the employees of any employer to engage in, a strike * * * where an object thereof is * * * requiring * * * any * * * person * * * to cease doing business with any other person."

Is Project "doing business" with Ebasco within the meaning of the Act? The term is not defined in the Act itself. Section 2, 29 U.S.C.A. § 152, contains thirteen definitions, but none of doing business. The term itself has, of course, received a vast amount of judicial construction but always in a context so different that it is pointless to explore that field for help in construing the term in the present context. Nor is it possible to attach legal consequences to all the relationships which the dictionary meaning of the term embraces. So to do would destroy the Act by driving it to absurdity. To give such broad scope to the term would, for instance, reach out to and include the business relation between an employee of the primary employer (Ebasco, in this case) and the primary employer, or the business relationship between a primary employer and a professional supplier of strike-breakers. Certainly it is an object of very many strikes and picket lines to induce a reduction in the struck employer's business by an appeal to customers — "any person" — to cease dealing with the employer. This is one of the most conspicuous weapons employed in many labor disputes. The effect of a strike would be vastly attenuated if its appeals were limited to the employer's conscience. I shall proceed on the assumption, warranted by the history of the Act, that it was not the intent of Congress to ban such activity, although the words of the statute, given their broadest meaning, may seem to reach it. Moreover, such broad construction would probably run afoul of Section 13 of the Act, 29 U.S.C.A. § 163, which reads: "Sec. 13. Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right."

To find the limitations to which "doing business" must be confined recourse may be had to the legislative history to discover the mischief which Congress intended to remedy. In describing the "necessity for legislation" the House Committee on Education and Labor reported, Report No. 245, pp. 4-5:

"The employers' plight has likewise not been happy. * * * "His business on occasions has been virtually brought to a standstill by disputes to which he himself was not a party and in which he himself had no interest."

The Senate Committee on Labor and Public Welfare reported the bill which it in part described thus, Report No. 105, p. 3:

"The major changes which the bill would make in the National Labor Relations Act may be summarized as follows: * * *

"3. It gives employers and individual employees rights to invoke the processes of the Board against unions which engaged in certain enumerated unfair labor practices, including secondary boycotts and jurisdictional strikes, which may result in the Board itself applying for restraining orders in certain cases."

Page 22 of the report goes on to say:

"Under paragraph (A) strikes or boycotts, or attempts to induce or encourage such action, are made violations of the...