Fuchs Ex Rel. NLRB v. Teamsters Local Union No. 671

• Decision Date: 29 May 1975
• Docket Number: Civ. No. H 75-153.
• Citation: 398 F. Supp. 243
• Court: U.S. District Court — District of Connecticut
• Parties: Robert S. FUCHS, Regional Director of the First Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD v. TEAMSTERS LOCAL UNION NO. 671, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,

398 F. Supp. 243

Robert S. FUCHS, Regional Director of the First Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD v. TEAMSTERS LOCAL UNION NO. 671, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,

Civ. No. H 75-153.

United States District Court, D. Connecticut.

May 29, 1975.

Thomas P. Kennedy, N. L. R. B., Region 1, Boston, Mass., for plaintiff.

Norman Zolot, Hamden, Conn., for defendant Union.

Harry M. Sangerman, Chicago, Ill. (McDermott, Will & Emery), Chicago, Ill., for charging party, Purolator.

RULING ON PETITION FOR PRELIMINARY INJUNCTION

CLARIE, Chief Judge.

The petitioner seeks a preliminary injunction, under § 10(l) of the National Labor Relations Act, 29 U.S.C. § 160(l),¹ to halt the picketing currently being conducted by the respondent at the Hartford, Connecticut, locations of Purolator Security, Inc. A hearing was held on May 12, 1975; and the parties have submitted briefs as well as proposed findings of fact and conclusions of law. After considering all the evidence, the arguments of counsel and all papers that have been filed, the Court finds that the petitioner's request for a preliminary injunction should be granted.

Facts

Petitioner is a Regional Director of the First Region of the Board, an agency of the United States, and files this petition for and on behalf of the Board. Respondent, an unincorporated association, is an organization in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. Respondent maintains its principal office in East Hartford, Connecticut, and at all times material herein has been engaged within this judicial district in transacting business and promoting and protecting the interests of the employee members of respondent.

Purolator, a Texas corporation having its principal offices in Dallas, Texas, operates a facility at Hartford, Connecticut, from which it is primarily engaged in providing armored carrier service for private customers and for the state and federal governments, within the State of Connecticut.² In addition, Purolator provides interstate service between points within Connecticut and Boston and New York City. The Company's armored cars are operated by teams of two men, one of whom is primarily responsible for entering the premises of the customers to make pickups and deliveries, called a messenger-guard, while the other remains in the vehicle and is responsible for protecting both his partner and the contents of the truck and is described as a driver-guard. The positions of driver-guard and messenger-guard are somewhat interchangeable and the employee's rate of pay at a given time depends on which function he is performing. The driver-guards and messenger-guards wear uniforms, carry sidearms and are required to conform to certain driver standards and regulations prescribed by the Interstate Commerce Commission and the Connecticut Public Utilities Commission relating to the operation of common carriers. Their duties include picking up and delivering items of value, including currency, negotiable stocks and bonds, and precious metals on designated routes. All of the items carried are owned by the customers being serviced, thus establishing the Company's role in effect, as that of a bailee for hire. Typical customers include banks, super-markets, large manufacturing concerns, as well as the state and federal governments.

In addition to its armored carrier service, Purolator operates a mail delivery service which employs approximately twenty part-time "mail-messengers" who drive conventional, i. e. non-armored, vehicles. Purolator also employs one plant custodian at its Hartford office and approximately twelve maintenance employees who service the Company's vehicles.

The respondent Local Union commenced picketing at Purolator's Hartford site on May 5, 1975, at 12:10 a. m. and has picketed continuously to the present date. On April 28, in a telephone conversation with Robert Murphy, Purolator's Senior Vice-President for Industrial Relations, the Secretary-Treasurer of Local 671, Richard Robidoux, notified him that Local 671 represented a majority of Purolator's Hartford employees, and requested that Purolator voluntarily recognize the respondent as their collective bargaining agent. Mr. Murphy refused, citing a "good faith doubt" as to the Local's claimed majority status. On April 30, Purolator filed a charge with the National Labor Relations Board alleging that Local 671 had violated § 8(b)(7)(C) of the Act, 29 U. S.C. § 158(b)(7)(C).³ The respondent Local on May 6, filed with the Board a petition for an election in a bargaining unit consisting of "drivers, mechanics and maintenance" employees.⁴ The Board's petition for a § 10(l) injunction was filed in this Court on May 7, an order to show cause was filed the same day, and a hearing on the Board's petition was held on May 12, 1975, at which the respondent Union appeared.

Law

Section 10(l) of the Act, 29 U.S.C. § 160(l) provides in relevant part that the Board shall conduct a prompt preliminary investigation of any unfair labor practice charge alleging a violation of, inter alia, § 8(b)(7) and that:

"If, after such investigation, the officer or regional attorney to whom the matter may be referred has reasonable cause to believe such charge is true and that a complaint should issue, he shall, on behalf of the Board, petition any United States district court within any district where the unfair labor practice in question has occurred, is alleged to have occurred, or wherein such person resides or transacts business, for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter. Upon the filing of any such petition the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper, notwithstanding any other provision of law . . .."

It is essential at the outset to note the bounds which have been set, by the statute and the judicial construction thereof, on this Court's function in a § 10(l) proceeding. First, in terms of the issues to be considered, this function is a two-fold one:

"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,' . . .." McLeod v. Local 25, International Brotherhood of Electrical Workers, 344 F.2d 634, 638 (2d Cir. 1965).

The Court starts with the proposition that "the Supreme Court has not yet passed upon the criteria for granting a preliminary injunction under either Section 10(j) or 10(l)." Danielson v. Local 275, Laborers International Union of North America, 479 F.2d 1033, 1035 (2d Cir. 1973). Thus, in formulating the limits on the permissible scope of its inquiry, the Court must take its lead from the relevant decisions of the Second Circuit Court of Appeals, and particularly its recent efforts to harmonize those decisions in Danielson v. Joint Board of Coat, Suit & Allied Garment Workers Union, 494 F.2d 1230 (2d Cir. 1974).

In Danielson v. Joint Board, supra, the Court reaffirmed the principle that a district court in a § 10(l) proceeding is not to grant its automatic, rubber stamp approval to the Board's request. Going one step further, the Court rejected the approach of several other Circuits, under which district courts are directed "to issue an injunction whenever the Regional Director has advanced a claim sufficiently `thoughtful' to escape being branded as `insubstantial and frivolous.' (emphasis supplied)" Id. 494 F.2d at 1244, quoting Samoff v. Building & Construction Trades Council of Philadelphia & Vicinity, 475 F.2d 203, 207 (3d Cir. 1973). On the other hand, it is also made clear, that this Court is precluded from basing its decision, at this interlocutory stage, on its own final assessment of the merits. Kaynard v. Independent Routemen's Association, 479 F.2d 1070, 1071 (2d Cir. 1973). The Danielson v. Joint Board Court, expressed the standard to be applied in the following terms:

"We hold only that when, after full study the district court is convinced that the General Counsel's legal position is wrong . . . it should not issue an injunction under § 10(l)." 494 F.2d at 1245.

Keeping in mind the limited purpose of a § 10(l) proceeding, the Court is not "convinced that the Board's legal position is wrong." Accordingly, since the Regional Director did have reasonable cause to believe the unfair labor practice charge filed by Purolator was true, and further, since injunctive relief is "just and proper" under the circumstances presented here, the preliminary injunction sought by the Regional Director shall enter.

Reasonable Cause

The unfair labor practice charges filed by Purolator allege a violation of § 8(b)(7)(C) of the Act, 29 U. S.C. § 158(b)(7)(C).⁵ In order for the Regional Director to find reasonable cause to believe such charges are true, he must first have reasonable cause to believe the following two elements exist: (1) that the driver-guards and messenger-guards employed by Purolator are "guards" for purposes of § 9(b)(3) of the Act, 29 U.S.C. § 159(b)(3);⁶ and (2) that the picketing of Purolator's Hartford site, which picketing is concededly designed for the objective of Union recognition or organization, has been conducted for more than the "reasonable period of time" allowed by § 8(b)(7)(C).

Section 9(b) of the Act confers on the Board the general power to determine the "unit appropriate for the purposes of collective bargaining." The proviso in § 9(b)(3) is in two...