Humphrey v. Drivers, Chauffeurs & Helpers Local 639

• Decision Date: 28 January 1974
• Docket Number: Civ. No. 73-1212-W.
• Citation: 369 F. Supp. 730
• Parties: William C. HUMPHREY, Regional Director of the Fifth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. DRIVERS, CHAUFFEURS & HELPERS LOCAL 639 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondent.
• Court: U.S. District Court — District of Maryland

369 F. Supp. 730

William C. HUMPHREY, Regional Director of the Fifth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. DRIVERS, CHAUFFEURS & HELPERS LOCAL 639 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondent.

Civ. No. 73-1212-W.

United States District Court, D. Maryland.

January 28, 1974.

Harvey A. Holzman, Atty., N.L.R.B., Fifth Region, Baltimore, Md., for petitioner.

Arrum M. Goldberg, Washington, D. C., for Dunbar Armored Express, Inc., charging party.

Solomon G. Lippman, Washington, D. C., for respondent; Bernard P. Jeweler, Edelman, Levy & Rubinstein, Baltimore, Md., of counsel.

WATKINS, Senior District Judge:

Upon complaint of Dunbar Armored Express, Inc. (Dunbar), the Regional Director of the Fifth Region of the National Labor Relations Board (Petitioner), on behalf of the Board, filed a petition with this Court pursuant to § 10(l) of the National Labor Relations Act¹ (the Act) for injunctive relief alleging that the Respondent Union (the Union) was engaging in an unfair labor practice proscribed by § 8(b) (7) (C)² of the Act. Respondent filed an answer to said complaint, and memorandum in opposition to the relief prayed, and after oral argument, the case was, with the concurrence of the parties, held sub curia by this Court. This opinion is the result of those proceedings.

I

The facts of the case are essentially undisputed. Dunbar is a Maryland corporation providing armored car carrier service and employing, inter alia, certain employees commonly referred to as "guards" who are "driver-hoppers", full and part-time, "drivers" or "vaultmen". The Union is a labor organization which admits to membership employees other than guards.

On November 16, 1973, the Union filed with the Board a petition for representation requesting that it be certified as the collective bargaining representative for a unit of Dunbar's guard employees. The Regional Director either requested that the petition be withdrawn or notified the Union it was about to be dismissed. In any event the Union requested that the petition be withdrawn on November 29 and it was approved for withdrawal by the Board on November 30.

On December 3, 1973, the Union began to picket Dunbar in conjunction with a contemporaneous strike by the guard employees with an admitted object of forcing or requiring Dunbar to recognize the Union as the representative of the guards. The picketing continued until December 18 when it was voluntarily terminated pending the decision of this Court. On the same day that the picketing was terminated, the Union refiled a petition for certification with the Regional Director.

II

The Union is charged with having committed, and this Court is petitioned to enjoin, an unfair labor practice in that the Union allegedly picketed for recognition in violation of § 8(b) (7) (C) of the Act which provides:

(b) It shall be an unfair labor practice for a labor organization or its agents —

(7) to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the representative of such employees:

(A) where the employer has lawfully recognized in accordance with this subchapter any other labor organization and a question concerning representation may not appropriately be raised under section 159(c) of this title,

(B) where within the preceding twelve months a valid election under section 159(c) of this title has been conducted, or

(C) where such picketing has been conducted without a petition under section 159(c) of this title being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing: Provided, That when such a petition has been filed the Board shall forthwith, without regard to the provisions of section 159(c) (1) of this title or the absence of a showing of a substantial interest on the part of the labor organization, direct an election in such unit as the Board finds to be appropriate and shall certify the results thereof: Provided further, That nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services.³

The Union did file a petition for certification under 29 U.S.C. § 159(c) proportedly as required in § 8(b) (7) (C) which was later withdrawn and subsequently has been refiled. It is Petitioner's contention that the mere filing of "a" petition is inadequate to prevent the picketing from being an unfair labor practice within the meaning of § 8(b) (7) (C) because § 9(b) of the Act specifically provides that the Board, which is the body authorized to certify a bargaining representative, may not certify Respondent Union. § 9(b) provides:

(b) The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof: Provided, That the Board shall not (1) decide that any unit is appropriate for such purposes if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit; or (2) decide that any craft unit is inappropriate for such purposes on the ground that a different unit has been established by a prior Board determination, unless a majority of the employees in the proposed craft unit vote against separate representation or (3) decide that any unit is appropriate for such purposes if it includes, together with other employees, any individual employed as a guard to enforce against employees and other persons rules to protect property of the employer or to protect the safety of persons on the employer's premises; but no labor organization shall be certified as the representative of employees in a bargaining unit of guards if such organization admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards.⁴

The Respondent Union denies that the employees are guards within the meaning of § 9(b) (3). It further contends that even if they are guards within § 9(b)(3), nevertheless the filing of the petition meets the requirements of § 8(b) (7) (C) and acts to remove the picketing from the ambit of being an unfair labor practice, i. e., it stays the § 8(b) (7) limitation on the picketing.

III

At the outset, it is important to note what this case is, and what it is not. It is a petition for a preliminary injunction pursuant to § 10(l) of the Act.⁵ It is not a determination on the merits of a case involving the interpretation of the Act. As the Third Circuit has aptly pointed out:

If, in a Section 10(l) proceeding, a district court or a court of appeals undertook to finally adjudicate such questions it would not be acting consistently with the congressional policy underlying Section 10(l). That Section's usefulness as a tool with which the status quo may be preserved pending final adjudication would be diminished insofar as the Board would be required to finally litigate questions of substance at a preliminary stage. Moreover, the court would not have the benefit of the Board's opinion on questions of fact and novel questions of labor law when making its decision. Thus, the court would, to some extent, usurp the Board's function as a primary fact finder in cases arising under the Act and its function as primary interpreter of the statutory scheme.⁶

This is not to say, as Petitioner asserts, that where the Regional Director finds reasonable cause to believe the charge is true, then the Court need only verify this finding and where here, as appears below, an issue is a novel one, the Court need only establish the reasonableness of Regional Director's belief in the validity of the charge.

The decided cases are less than clear on this question of the scope of the District Court's role in a § 10(l) proceeding. The statute itself is of discouragingly little assistance as it grudgingly states only that the Court "shall have jurisdiction to grant such injunctive relief . . . as it deems just and proper, notwithstanding any other provision of law."

A review of the cases decided under § 10(l) and § 10(j) (which sets out the same "just and proper" criterion in a similar section of the Act) indicates that in addition to the Court acting as a sort of analog to the criminal preliminary hearing judge, it must determine if the purposes of the Act will be frustrated unless temporary relief is granted.

In Minnesota Mining and Manufacturing Company v. Meter⁷ (below cited as 3M) which cites Angle v. Sacks⁸ for authority, the Court refers to the legislative history of §§ 10(l) and (j) (3M was a § 10(j) case):

Experience under the National Labor Relations Act has demonstrated that by reason of lengthy hearings and litigation enforcing its orders, the Board has not been able in some instances to correct unfair labor practices until after substantial injury has been done. Under the present act the Board is empowered to seek interim relief only after it has filed in the appropriate circuit court

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