Greene v. Bangor Bldg. Trades Council, AFL-CIO

• Decision Date: 20 August 1958
• Docket Number: Civ. No. 1105.
• Citation: 165 F. Supp. 902
• Parties: Robert E. GREENE, Acting Regional Director of the First Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. BANGOR BUILDING TRADES COUNCIL, AFL-CIO; Hoisting and Portable Operating Engineers, Local 4, International Union of Operating Engineers, AFL-CIO; Local 1377, International Hod Carriers', Building & Common Laborers' Union of America, AFL-CIO, Respondents.
• Court: U.S. District Court — District of Maine

165 F. Supp. 902

Robert E. GREENE, Acting Regional Director of the First Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. BANGOR BUILDING TRADES COUNCIL, AFL-CIO; Hoisting and Portable Operating Engineers, Local 4, International Union of Operating Engineers, AFL-CIO; Local 1377, International Hod Carriers', Building & Common Laborers' Union of America, AFL-CIO, Respondents.

Civ. No. 1105.

United States District Court D. Maine, N. D.

Ruling August 18, 1958.

Supplemental Ruling, Findings of Fact and Order August 20, 1958.

James F. Foley, Acting Regional Director, Washington, D. C., for N. L. R. B.

Clair L. Cianchette, Pittsfield, Me., for J. R. Cianchette.

Sidney W. Wernick, Portland, Me., for Bangor Building Trades Council, AFL-CIO and Local 1377, International Hod Carriers', Building & Common Laborers' Union of America, AFL-CIO.

Carl Randall, Jr., Manchester, N. H., for Davison Co., Inc.

James M. Walsh, South Boston, Mass., for Local 4, International Union of Operating Engineers, AFL-CIO.

Oral Ruling

The following oral ruling was delivered from the bench on Aug. 18, 1958.

GIGNOUX, District Judge.

In view of the urgency of this proceeding and the mandate of the statute, the Court will announce its ruling at this time and indicate very briefly its reasons therefor. The Court also wishes to state that in a matter of this importance it would not feel that it should thus rule from the bench had it not had occasion very recently to review the problems presented to the Court upon a petition for an injunction under Section 10 (l) of the National Labor Relations Act, 29 U.S.C.A. § 160(l) where a violation of Section 8(b) (4) (A) of the Act, 29 U.S.C.A. § 158(b) (4) (A), is charged and also had the Court not had an opportunity over the weekend to review and consider both the evidence and the authorities which have been called to the Court's attention by counsel.

The Court will note then that this is a petition by the Regional Director of the National Labor Relations Board for a temporary injunction under Section 10 (l) of the National Labor Relations Act, as amended, to restrain a violation of Section 8(b) (4) (A) of the Act. In Alpert v. Truck Drivers, Warehousemen and Helpers Local 340, D.C.Me.1958, 161 F.Supp. 86, 89, this Court issued an opinion and order under date of April 1, 1958, in which it reviewed its conception of the responsibility of the District Court in Section 10(l) proceedings. In the course of that opinion, this Court stated that, "* * * the role of a district court ruling on a petition under § 10(l) of the Act must be distinguished from that of the National Labor Relations Board ruling on a complaint under § 10(a)-(d) and from that of a circuit court acting on a petition to review or enforce a Board order under either § 10(e) or (f). * * *" The Court went on to say that "* * * by the terms of § 10(l) a district court's function is limited to ascertaining whether the Regional Director has `reasonable cause to believe' that the charges filed are true, and to granting such injunctive relief `as it deems just and proper.'" The Court further stated that "The requirement of § 10(l) that the Regional Director must have `reasonable cause to believe' that a charge is true is met by a showing of a reasonable probability that the petitioner is entitled to final relief * * *"; that "* * * credible evidence, establishing a prima facie case, is sufficient * * *"; and that "* * * it is quite clear from the language of § 10(l) and from the numerous cases that have interpreted this section that it is not necessary to the granting of the temporary injunction sought by the petitioner that this Court find that the charges filed are true, or that, in fact, a violation of the Act has occurred. The final determination of such matters is for the National Labor Relations Board, subject to review by the Courts of Appeal if and when enforcement or review is sought."

The principles thus stated by this Court so recently are those which have guided it in approaching the merits of the present controversy. Turning to those merits then, the first question which is presented is whether upon the record before it, the Regional Director has "reasonable cause to believe" that a violation of Section 8(b) (4) (A) of the Act exists.

The pertinent language of Section 8 (b) (4) (A) is as follows: "It shall be an unfair labor practice for a labor organization * * * to engage in * * a strike * * * where an object thereof is * * * forcing or requiring any employer * * * or other person, * * * to cease doing business with any other person * * *." Applied to the present situation, the issue then becomes as to whether the record in this case shows that the Regional Director has reasonable cause to believe that an object of this strike was to force or require Davison to cease doing business with Cianchette. The respondents' contention is that such was not the object of this strike; that the object of the strike was to compel Davison Construction Company to comply with the provisions of Paragraph 26 of his Agreement¹ with the respondent Local 4, by insuring that union conditions are met throughout the entire project for which Davison holds the prime contract. The testimony of respondents' witnesses most certainly tends to bear out respondents' contention in this respect. The testimony of petitioner's witnesses, on the other hand, is directly in conflict with that of respondents' witnesses and tends to establish that, if not the sole object, at least an object of this strike was to compel Davison to cease doing business with its nonunion sub-contractor, J. R. Cianchette.

This Court, being presented with a conflict between the testimony of the two sets of witnesses, does not feel that it can properly resolve the questions of credibility in any ultimate manner in this proceeding. As previously indicated, this Court's responsibility is limited to a determination as to whether, upon the entire record, the Regional Director has reasonable cause to believe that an object of the strike was to compel Davison to cease doing business with Cianchette. On the factual issue thus presented, the Court has concluded that the Regional Director has reasonable cause to believe that such was an object of the strike. On the authority of National Labor Relations Board v. Denver Building and Construction Trades Council, 1951, 341 U.S. 675, 71 S.Ct. 943, 95 L. Ed. 1284, such an object would cause the strike activity to constitute a violation of Section 8(b) (4) (A) of the Act.

The Court has been concerned as to the effect of Paragraph 26 of the Agreement, which the Court can only construe as an undertaking by the employers signatory to the Agreement that they will require sub-contractors to conform to union terms and conditions. In view of the recent decision of the United States Supreme Court in the so-called "hot cargo" cases, Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL-CIO v. National Labor Relations Board, 1958, 357 U.S. 93, 78 S.Ct. 1011, 2 L.Ed.2d 1186, this Court has concluded that even as so construed, Paragraph 26 of the Agreement cannot operate as a defense to a charged violation of Section 8(b) (4) (A) resulting from conduct which, but for the existence of the contract provision, would be violative of the Act.

The second question presented to the Court in a Section 10(l) proceeding is as to whether the granting of the injunctive relief requested is "just and proper." Having concluded that the Regional Director has reasonable cause to believe that a Section 8(b) (4) (A) violation exists upon a national defense project of the nature here concerned, the Court feels that it would be remiss in the discharge of its responsibilities were it not to grant such relief as is necessary to insure that the charged violations will not continue.

The Court wishes to supplement its ruling in this limited respect. The Court omitted to refer to respondent's contention that the petitioner has failed in this case to sustain the allegations of Paragraph 6 of the petition that the charges were referred to the petitioner for investigation and were investigated by him and under his supervision. The Court's conclusion with respect to this contention is that the Court's determination as to whether such an investigation has been completed must necessarily be based upon the evidence presented by the petitioner in the course of the hearing. And without commenting upon the completeness of the investigation, the Court is of the opinion that the petitioner has sustained whatever burden may be his in that respect.

Supplemental Ruling

The following supplemental ruling was delivered orally on Aug. 20, 1958.

GIGNOUX, J.

At the conclusion of the hearing in this matter on August 18, 1958, the Court requested counsel for the petitioner to submit proposed findings of fact and conclusions of law and a proposed form of order in accordance with the ruling announced by the Court from the bench at that time.

Following the hearing the Court arranged to confer with counsel for the petitioner and the respondents concerning the proposed form of such findings, conclusions and order. At this conference three questions arose with respect to the proposed form of order upon which the Court feels that it should comment briefly upon the record.

First, counsel for the petitioner presented to the Court an order purporting to enjoin the respondents from inducing the employees of Davison and the subcontractors involved to engage in a strike where an object thereof is to force Davison or any other person to cease doing business with Cianchette. Respondents contended that the proposed form of order was too broad in that it would enjoin respondents' activities on jobs other than the Dow Housing Project, respondents' activities in regard to this project being the sole basis for the unfair labor practice...