Hirsch v. Building and Const. Trades Council of Philadelphia and Vicinity, AFL-CIO

• Decision Date: 04 February 1976
• Docket Number: AFL-CI,Nos. 75--1586 and 75--1587,A,s. 75--1586 and 75--1587
• Parties: 91 L.R.R.M. (BNA) 2438, 78 Lab.Cas. P 11,283 HIRSCH, Peter W., Regional Director of the Fourth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board v. BUILDING AND CONSTRUCTION TRADES COUNCIL OF PHILADELPHIA AND VICINITY,ppellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 298

530 F.2d 298

91 L.R.R.M. (BNA) 2438, 78 Lab.Cas. P 11,283

HIRSCH, Peter W., Regional Director of the Fourth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board v. BUILDING AND CONSTRUCTION TRADES COUNCIL OF PHILADELPHIA AND VICINITY, AFL-CIO, Appellant.

Nos. 75--1586 and 75--1587.

United States Court of Appeals Third Circuit.

Argued Dec. 10, 1975.

Decided Feb. 4, 1976.

Bernard N. Katz, Richard B. Sigmond, Meranze, Katz, Spear & Wilderman, Philadelphia, Pa., for appellant.

John W. Pelino, Max L. Lieberman, Pelino, Wasserstrom, Chucas & Monteverde, Philadelphia, Pa., for amicus.

Michael H. Malin, White & Williams, Philadelphia, Pa., for Strescon Industries, Inc.

Joseph E. Mayer, Asst. Gen. Counsel, Robert T. Kofman, Atty., N.L.R.B., Washington, D.C., for appellee.

Before SEITZ, Chief Judge, and GIBBONS and ROSENN, Circuit Judges.

OPINION OF THE COURT

SEITZ, Chief Judge.

This is a consolidated appeal from two orders of the district court granting petitions brought by the Regional Director of the National Labor Relations Board (the 'Board') for temporary injunctions against the Building and Construction Trades Council of Philadelphia and Vicinity (the 'Trades Council') pursuant to § 10(l) of the National Labor Relations Act (the 'NLRA'), 29 U.S.C. § 160(l). The injunctions were issued pending final disposition of the matters involved by the Board on the ground that the Regional Director had 'reasonable cause to believe' that the Trades Council had violated § 8(b)(7)(C), 29 U.S.C. § 158(b)(7)(C), which prohibits 'recognitional' and 'organizational' picketing under certain circumstances and § 8(b)(4)(ii)(B), 29 U.S.C. § 158(b)(4)(ii)(B), one of the NLRA's 'secondary boycott' provisions. In addition, the charging party in the § 8(b)(7)(C) actions, Altemose Construction Co. ('Altemose'), seeks intervenor status in this Court.

A. THE FACTUAL BACKGROUND: ¹

The Trades Council is a union composed of affiliated labor organizations in the building and construction industry in the Philadelphia area. For some time, it has attempted to secure a 'sub-contractor's agreement' with Altemose, a non-union employer. This agreement would require Altemose to employ only unionized sub-contractors in its construction projects. To protest Altemose's continued refusal to sign such an agreement, the Trades Council began picketing Altemose's main office and construction jobsites on January 20, 1975. Throughout the course of the picketing, respondent's members displayed signs bearing the following legends:

NOTICE

Altemose Contractor Refuses to enter into a Sub-Contractor's

Agreement with the Philadelphia, Pennsylvania Building & Construction

Trades Council, AFL-CIO;

TEAMSTERS PICKET LINE PLEASE HONOR; and

SLOW DOWN LOW WAGE AREA AHEAD

Although all of Altemose's operations were picketed, the events giving rise to the unfair labor practice charges against the Trades Council occurred, for the most part, in the vicinity of Altemose's Valley Forge Towers project, the largest project it had under construction.

1. The § 8(b)(7)(C) Charge:

The picket lines established by the Trades Council did not bring activities to a halt at any of the Altemose projects. However, they did disrupt the work in progress to a certain extent, at least at the Valley Forge Towers site. There, Ralph D. Williams, the Trades Council's business representative in charge of the picketing, appealed directly to deliverymen employed by Altemose's suppliers to honor the picket line. As a result of his appeals and the picket line itself, a number of scheduled deliveries were either never completed or delayed.

While the picketing was in progress, Thomas Magrann, the Trades Council's business manager, and J. Leon Altemose, Altemose's president, appeared together on a local Philadelphia radio show to debate the controversy between them. During the talk show, Magrann made a number of comments concerning the purpose of the Trades Council's picketing of the Altemose projects. For example, he stated that the Trades Council was attempting 'to get Mr. Altemose, to you know, sign a Building Trades agreement'. In addition, he expressed his desire to resolve the long dispute between Altemose and the Trades Council. In this regard, he indicated that he would gladly 'sit down and negotiate something with Mr. Altemose'. Magrann also stated that the Trades Council would accept Altemose's employees 'into the union without no initiation fees and no test'.

When the picketing persisted for more than thirty days and the Trades Council failed to petition for a representation election under § 9(c) of the NLRA, 29 U.S.C. § 159(c), during that period, Altemose filed a § 8(b)(7)(C) unfair labor practice charge against it with the Board. After investigation, the Regional Director determined that there was reasonable cause to believe that § 8(b)(7) (C) had been violated and he therefore petitioned the district court for a temporary injunction to restrain the allegedly illegal picketing.

2. The § 8(b)(4)(ii)(B) Charge:

Strescon Industries, Inc. ('Strescon') was under contract with Altemose to supply the Valley Forge Towers project with precast, prestressed concrete planks of a unique design and length. Deliveries under this contract were scheduled on a two week cycle with approximately eighty to ninety deliveries to occur in any given two week period. The normal delivery procedure called for Strescon drivers to haul loaded tractor-trailers to the construction site, leave the trailers to be unloaded by Altemose employees, and return with any empty trailers from a previous delivery.

On January 24, 1975, four days after the picketing had ensued, fourteen Strescon drivers were sent to the Valley Forge project to pick up approximately thirty empty trailers. However, upon arriving at the construction site, the drivers, all members of Teamsters Local 384, decided to honor the Trades Council's picket line upon the request of Williams, its business representative. Since it needed the trailers to fulfill commitments elsewhere, Strescon soon arranged with the Teamsters Local for its members to cross the picket line for the limited purpose of removing the empty trailers. However, the drivers continued to refuse to cross the picket line to make any of the scheduled deliveries. As a result, only one of the approximately ninety deliveries scheduled between January 20 and February 18 was completed.

Because of the refusal of its drivers to cross the Trades Council's picket line, Strescon contracted with Raritan Motor Express ('Raritan') to make its deliveries to Altemose for it. Pursuant to this agreement, Raritan drivers began delivering concrete planks to the Valley Forge project on February 18. During that afternoon, Russell Dobson, a Raritan driver, was waved over to the roadside as he approached the construction site by Trades Council pickets, including Williams. Dobson was asked by Williams if he intended to cross the picket line. He responded affirmatively, stating that he had been out of work for six months and that he had to support his family. Williams warned him that if he 'didn't want to be out of a job another six months (he) shouldn't deliver to the (Valley Forge) Towers jobsite'. Dobson, however, ignored this remark and completed his delivery.

Later that same afternoon, John Hogarth, Strescon's operations manager, received a phone call from an individual who identified himself as 'Mr. Ralph Williams of the Building & Trades Council'. The caller asked Hogarth if he had anything to do with the deliveries being made to the Valley Force project. After Hogarth admitted that he did, the caller stated that Strescon had 'double dealt' the Trades Council for it had understood that only empty trailers would be removed from the job-site. Hogarth informed the caller that Raritan, rather than Strescon, was making the deliveries and that Strescon intended to fulfill its contractual obligations to Altemose. He was then told not to be 'surprised if you have pickets on your plant tomorrow'. In addition, the caller stated that Strescon was 'stupid to be doing business with Altemose'.

The very next day, Strescon filed a § 8(b)(4)(ii)(B) charge against the Trades Council alleging that it had violated the secondary boycott provisions of the NLRA. After investigation, the Regional Director determined that there was reasonable cause to believe that the Trades Council had violated this provision, and he, therefore, petitioned the district court for a § 10(l) injunction.

B. ISSUES ON APPEAL:

1. The § 10(l) Injunctions:

A § 10(l) injunction is interlocutory in nature and remains in effect only pending the Board's final resolution of the underlying unfair labor practice charges. The injunction procedure itself reflects Congress's belief that certain unfair labor practices are so disruptive of commerce that, upon a proper showing by the Regional Director, they should be enjoined pending the disposition of the matter by the Board. S.Rep. No. 105, 80th Cong., 1st Sess., pp. 8, 27.

Since the § 10(l) proceeding is thus ancillary to the main unfair labor practice action committed to the Board's exclusive jurisdiction, the Regional Director faces a relatively insubstantial burden of proof when he petitions a district court for temporary injunctive relief pursuant to § 10(l). He need not prove that a violation of the NLRA has in fact occurred. Nor must he convince the district court of the validity of the legal theory upon which he predicates his charges. Both questions are for the Board's determination in the first instance, subject to the right of appellate review. Rather, he need only demonstrate that he has reasonable cause to believe that the elements of an unfair labor practice are present and that the legal theory upon which he proceeds is 'substantial and not frivolous'. Samoff v. Building & Construction Trades Council of Phila. & Vicinity, 475 F.2d...