Hendrix For and on Behalf of N.L.R.B. v. International Union of Operating Engineers, Local 571

• Decision Date: 07 February 1979
• Docket Number: No. 78-1376,78-1376
• Citation: 592 F.2d 437
• Parties: 100 L.R.R.M. (BNA) 2704, 85 Lab.Cas. P 11,099 Thomas C. HENDRIX, Regional Director of the Seventeenth Region of the National Labor Relations Board, For and On Behalf of the NATIONAL LABOR RELATIONS BOARD, Appellee, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 571, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 437

592 F.2d 437

100 L.R.R.M. (BNA) 2704, 85 Lab.Cas. P 11,099

Thomas C. HENDRIX, Regional Director of the Seventeenth

Region of the National Labor Relations Board, For

and On Behalf of the NATIONAL LABOR

RELATIONS BOARD, Appellee, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 571, Appellant.

No. 78-1376.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 17, 1978.

Decided Feb. 7, 1979.

David D. Weinberg of Weinberg & Weinberg, Omaha, Neb., for appellant.

Joseph G. Metscher, Atty., N. L. R. B., Washington, D. C., argued, John S. Irving, Gen. Counsel, John E. Higgins, Deputy Gen. Counsel, Harold J. Datz, Associate Gen. Counsel, Joseph E. Mayer, Asst. Gen. Counsel, and John W. Hornbeck, Washington, D. C., on brief, for appellee.

Before STEPHENSON and McMILLIAN, Circuit Judges, and ROBINSON, ^* Senior District Judge.

RICHARD E. ROBINSON, Senior District Judge.

This case is an appeal from the issuance of a Preliminary Injunction by the District Court ¹ pursuant to § 10(L ) of the National Labor Relations Act, 29 U.S.C. § 160(L ). After a careful review of the record and the law, we find the issuance of the preliminary injunction was not clearly erroneous. Accordingly, we affirm. However, as hereinafter explained, we remand the case for the purpose of limiting the scope of the injunctive order.

The employer, J. E. D. Construction Co. (hereinafter J. E. D.) is a masonry contractor in Lincoln, Nebraska. Its employees are represented by Laborers International Union of North America, Local 1140, AFL-CIO (hereinafter Laborers Local 1140). The defendant, International Union of Operating Engineers Local 571, AFL-CIO (hereinafter Local 571 or Union), is a union of forklift operators in the Lincoln, Nebraska area. Local 571 has never been certified by the National Labor Relations Board (hereinafter the Board or NLRB) as the collective bargaining representative of J. E D.'s employees, nor has J. E. D. recognized Local 571 as the bargaining agent of its employees.

In the course of its masonry operations, J. E. D. uses forklift at the construction site. The operation of the machines is normally assigned to members of Laborers Local 1140, but members of Local 571 have operated the machines on occasion. ² In 1969 J. E. D. entered into two "Participation Agreements" with Local 571, whereby J. E. D. contributed a sum of money to a pension fund and a Health and Welfare fund for each hour of work done by members of Local 571 on J. E. D.'s forklift assignments.

In 1975 the general contractor at the Animal Research Project construction site requested that J. E. D. assign the forklift operations to members of Local 571 "to keep problems off the job." Since no Local 571 member was available, Local 571 issued a work permit to J. E. D. Pursuant to the permit, J. E. D. paid Local 571 a fee and assigned the forklift operations to a member of Laborers Local 1140, who was paid the higher Local 571 operator's wage.

On April 1, 1976, J. E. D. entered into a collective bargaining agreement with Laborers Local 1140 and cancelled the said work permit with Local 571. Thereafter all forklift assignments were assigned to members of Laborers Local 1140. In a letter to J. E. D. the business agent for Local 571 disputed the work permit cancellation and forklift assignment to Laborers Local 1140. In May, 1976, Local 571 filed a jurisdictional work assignment complaint with the Impartial Jurisdictional Disputes Board in which it challenged J. E. D.'s forklift assignment to Laborers Local 1140 at the University of Nebraska job site and requested the reassignment of the forklift operations to Local 571. The Disputes Board notified J. E. D. of the complaint and the possibility of a violation of the procedural rules of the Disputes Board. J. E. D. denied the allegations and contended that the Disputes Board lacked jurisdiction over J. E. D. No further action followed.

In July, 1976, Local 571 requested payroll and other information from J. E. D. for collective bargaining and representation purposes. J. E. D. denied it had a collective bargaining agreement with Local 571 and repudiated the 1969 "Participation Agreements" because the forklift operations were assigned to Laborers Local 1140 pursuant to the collective bargaining agreement with J. E. D. Later in the year, Local 571 requested J. E. D. to attend a multi-employer meeting to negotiate changes in Local 571's "Building Agreement for Lancaster County, Nebraska." J. E. D. did not respond.

Local 571 filed a second jurisdictional work assignment complaint with the Disputes Board in July, 1977, in which it challenged J. E. D.'s forklift assignment to Laborers Local 1140 at the Millard warehouse job site. The Disputes Board notified J. E. D., which denied the allegations and the Disputes Board's authority over J. E. D.'s operations. Again, no further action followed.

In August, 1977, Local 571 advised J. E. D. by letter that although it did not purport to represent J. E. D.'s employees, it protested that the wage scale J. E. D. paid its employees who operated the forklift was below area standards. However, the Union did not protest the assignment of the forklift operations to the Laborers Local 1140.

In December, 1977, J. E. D. assigned forklift operations at the Southeast Community College work site to Laborers Local 1140. Due to inclement weather conditions, the forklift was used infrequently during the winter months. On March 10, 1978, continuous operation of the forklift resumed. Eleven days later Local 571 began picketing J. E. D. at the work site. The purpose of the picketing was allegedly to protest the lower wage scale paid by J. E. D. to members of Laborers Local 1140 who operated the forklift. As a consequence of the picketing, work on the construction site was curtailed.

On March 22, 1978, J. E. D. filed a complaint with the Regional Director of the NLRB. After its investigation, the NLRB, through the Regional Director, petitioned the District Court on April 5, 1978, for a Preliminary Injunction pursuant to § 10(L ) of the National Labor Relations Act. 29 U.S.C. § 160(L ). The NLRB alleged it had reasonable cause to believe the purpose of the picketing by Local 571 was to force J. E. D. to assign the forklift operations to members of Local 571, which was an unfair labor practice within the meaning of § 8(b)(4)(i)(ii)(D). 29 U.S.C. § 158(b)(4)(i)(ii)(D). ³ The NLRB sought to enjoin further picketing by the Union for jurisdictional purposes until the final disposition by the NLRB of J. E. D.'s unfair labor practice complaint.

After an evidentiary hearing on April 21, 1978, the District Court found the factual allegations were substantial and the legal question was one of first impression, substantial and non-frivolous. Accordingly, the District Court concluded that the NLRB had reasonable cause to believe the picketing was an unfair labor practice and issued a Preliminary Injunction pursuant to § 10(L ).

On April 18, 1978, the NLRB held a § 10(k), 29 U.S.C. § 160(k), ⁴ hearing to determine which Union was entitled to the forklift assignments. The Hearing Officer concluded that the Laborers Local 1140 was entitled to the assignments at J. E. D.'s present and future job sites in the Lincoln, Nebraska, area where the jurisdiction of the two unions coincided. On August 28, 1978, a Three Member Panel of the NLRB affirmed the decision of the Hearing Officer. International Union of Operating Engineers Local 571, AFL-CIO and J. E. D. Construction Co., Inc. and Laborers International Union of North America, Local 1140, AFL-CIO, 237 NLRB No. 125 (August 28, 1978).

The Norris-LaGuardia Act, 29 U.S.C. §§ 101-115, removed the jurisdiction of the Federal Courts to grant injunctive relief in labor disputes. 29 U.S.C. § 101. ⁵ When Congress enacted the Taft-Hartley Act in 1947, 29 U.S.C. §§ 141-197, "it believed Norris-LaGuardia to be so broad that certain of the new provisions of section 8(b), creating union unfair labor practices, would be rendered nullities without some use of the injunctive process." McLeod v. Bus. Mach. and Off. App. Mech. Conf. Bd., Local 459, 300 F.2d 237, 240 (2d Cir. 1962). Further the crippling and destructive effects on commerce of the Section 8(b) unfair labor practices made time of the essence in enforcement proceedings. ⁶ In addition,

(t)he relatively slow procedures of Board hearings and orders, followed many months later by an enforcing decree of the Circuit Court of Appeals, falls short of achieving the desired obligations of the prompt elimination of the obstacles to the free flow of commerce and encouragement of the practice and procedure of free and private collective bargaining.

Sen.Rep.No.105, 80th Cong., 1st Sess. 7-8, Reprinted in I NLRB, Legislative History of the Labor Management Relations Act, 1947, at 433 (1948). See Muniz v. Hoffman, 422 U.S. 454, 466-67, 95 S.Ct. 2178, 45 L.Ed.2d 319 (1975); Dawidoff v. Minn. Bldg. and Const. T. C., 550 F.2d 407, 412 (8th Cir. 1977). ⁷ The solution of this dilemma was further complicated by the underlying Congressional intent in the Labor Act that the NLRB make the primary findings of fact and interpretations of the statutory scheme of the Labor Act. ⁸ Squillacote v. Inter. Broth. of Teamsters, Local 344, 561 F.2d 31, 33-35 (7th Cir. 1977); Dawidoff v. Minn. Bldg. and Const. T. C., supra, 550 F.2d at 412-13; McLeod v. Natl. Maritime Union of America, AFL-CIO, 457 F.2d 490, 494 (2d Cir. 1972).

Congress resolved these various considerations by enacting Section 10(L ). 29 U.S.C. § 160(L ). ⁹ In order to insure prompt and effective action, Section 10(L ) empowers the Federal District Courts to issue appropriate injunctive relief when it finds reasonable cause to believe that an unfair labor practice occurred. The injunction preserves the status quo pending a full and final adjudication by the Board of the unfair labor practice charges. Sears, Roebuck & Co. v. Carpet Linoleum, Soft Tile &...