Lebus v. Building and Construction Trades Council, Civ. A. No. 11656-B.

• Decision Date: 22 November 1961
• Docket Number: Civ. A. No. 11656-B.
• Citation: 199 F. Supp. 628
• Parties: John F. LEBUS, Regional Director of the Fifteenth Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BUILDING AND CONSTRUCTION TRADES COUNCIL OF NEW ORLEANS AND VICINITY, AFL-CIO, and Local 60, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Respondents.
• Court: U.S. District Court — Eastern District of Louisiana

199 F. Supp. 628

John F. LEBUS, Regional Director of the Fifteenth Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BUILDING AND CONSTRUCTION TRADES COUNCIL OF NEW ORLEANS AND VICINITY, AFL-CIO, and Local 60, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Respondents.

Civ. A. No. 11656-B.

United States District Court E. D. Louisiana, New Orleans Division.

November 22, 1961.

Stanley A. Mestel, Washington, D. C., Louis A. Fuselier, New Orleans, La., for petitioner.

Kullman & Lang, Frederick A. Kullman, New Orleans, La., for Houston Contracting Co.

Jackson & Hess, Ralph N. Jackson, New Orleans, La., for Building and Construction Trades Council, respondent.

Dodd, Hirsch, Barker & Meunier, C. Paul Barker, Baton Rouge, La., Thomas J. Meunier, New Orleans, La., for Local 60, respondent.

J. SKELLY WRIGHT, District Judge.

This application, filed by the Regional Director of the Fifteenth Region of the National Labor Relations Board pursuant to Section 10(l) of the National Labor Relations Act as amended,¹ is for a temporary injunction pending the final disposition of charges filed before the Board by Houston Contracting Company alleging that respondents have engaged in and are engaging in an unfair labor practice within the meaning of § 8(b) (7) (C)² of the Act, which section proscribes certain recognitional and organizational picketing. The respondent Building Trades Council is an organization composed of building and construction trade unions and the respondent Plumbers Union is a member of the Council. Both respondents function as labor organizations promoting and protecting the interests of their respective members and members of affiliated labor organizations.

Houston is currently engaged in two types of construction work in Louisiana. Houston has pipeline construction jobs now under way at Lafayette, Melville and Lake Providence, Louisiana. As to these jobs, Houston is a signatory to the National Pipeline Agreement and as such its employees working on pipeline construction, including those at Lafayette, Melville and Lake Providence, are members of or represented by various labor unions, including locals of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO. In addition, and of primary concern here, Houston is currently engaged in the construction of a gas compressor station at Port Sulphur, Louisiana. Houston's employees at Port Sulphur are not represented by a labor organization.

When the work at Port Sulphur began in June, 1961, respondents, through their officers, contacted representatives of Houston, requesting a conference with management concerning the labor to be used on the job. After some unsuccessful efforts to obtain the conference, respondents were told that the job would be non-union. Thereupon picketing began at the job site, the signs being in the language of the second priviso³ in § 8(b) (7) (C) of the Act. The signs read:

"This picket is to advise that Houston Contracting Co. does not have an agreement with Bldg. & Const. Trades Coun. of N. O. and Vicinity, AFL-CIO."

This picketing has continued to date, although interrupted at times by arrests of the pickets by the deputies of the Sheriff of Plaquemines Parish, Louisiana.⁴ During the picketing there have been isolated refusals on the part of delivery trucks to deliver at the job site. In every case of refusal, however, the supplies were received at the job site, either by having an employee of Houston drive the truck past the picket line or by making the deliveries at places where the picket line would not have to be crossed. These isolated interruptions have not affected work at the job site, which work is proceeding on schedule, according to the president of Houston.⁵

On October 4, 1961, pickets of respondent Plumbers appeared at Houston's job sites in Lafayette, Melville and Lake Providence. This picketing did not affect the pickup or delivery of any supplies to these job sites, although some employees of Houston did refuse to cross the picket lines. Picketing at these locations was discontinued on October 6, 1961, and has not recommenced.⁶ On October 6, 1961, Houston filed with the Board a charge against respondents alleging violations of § 8(b) (7) (C) of the Act. The Board's complaint herein, alleging reasonable cause to believe that the charges are true, was filed October 24, 1961.

The Board's principal contention is that the object of the picketing at the Port Sulphur site is recognition or organization and, since it has persisted for a period of more than 30 days without a petition for an election under § 9(c)⁷ of the Act being filed,⁸ the picketing is an unfair labor practice under § 8(b) (7) (C). The Board also contends that the "effect of such picketing is to induce" individuals employed by other persons in the scope of their employment not to pick up, deliver or transport any goods or not to perform any services at the job site. In any event, the Board suggests that this record at least shows reasonable cause to believe that the Act has been violated and that consequently, under § 10(l), the injunction should issue.

The initial consideration is that this is a statutory injunction. After the regional attorney determines that there is a reasonable cause to believe that the facts alleged in the charge are true and that a complaint should issue, the district court has jurisdiction to grant whatever relief it deems "just and proper."⁹ The considerations are not those which usually attend the injunctive process between private litigants,¹⁰ the primary concern of the court being directed to the effectuation of the policy of a federal statute and the maintenance of the status quo until the Congressionally appointed agency may complete its weighing of the merits of the charge.¹¹

The labor injunction dwells in a sensitive area. "When Congress itself has struck the balance, has defined the weight to be given the competing interests, a court of equity is not justified in ignoring that pronouncement under the guise of exercising equitable discretion."¹² The court must view the preliminary charge precisely as the Board presents it and not cast about for other potential violations on the facts presented. Only in this way can the court show proper respect for the expertise of the Board, fulfill its duty under the Act, and justly administer the weighty power of the injunctive process.¹³ Simply stated, then, the court must decide whether there is reasonable cause to believe, on the evidence presented, that the alleged violation of the Act has been committed as charged.

Section 8(b)(7) of the Act, as amended by Landrum-Griffin, prohibits picketing by a union which is not the certified representative, where an object thereof is recognition or organization: under Paragraph (A), if another union has been lawfully recognized and an existing contract with that union bars an election; under Paragraph (B), if a valid election has been held among the employees by the Board during the preceding twelve months; and under Paragraph (C), if conducted for more than a reasonable period, not to exceed 30 days, without the filing of a petition for an election under § 9(c) of the Act. Unlike Paragraphs (A) and (B), however, Paragraph (C) specifically permits informational picketing provided deliveries to the job site continue uninterrupted. Section 8(b) (7) is, of course, an integral part of the comprehensive scheme devised by Congress to protect the rights of employees and employers and to stabilize labor relations.

Although prior to Landrum-Griffin the Act guaranteed to employees the right to refrain from union activities as well as the right to engage in them, until the recent amendments became effective on November 13, 1959, the Act, with some exceptions¹⁴ not pertinent here, did not expressly prohibit a union from picketing a job to compel the employer to recognize it as the bargaining agent of his employees or to compel the employees to join or select it as such bargaining agent. As a result, unions which did not represent a majority of the employees in a plant were permitted freely to engage in recognitional picketing, i. e., picketing designed to force an employer to recognize or bargain with it as the representative of employees, notwithstanding the fact that the employees had never designated it to act as such, or organizational picketing, i. e., picketing to compel employees to join the union and designate it as their bargaining agent.

The sponsors of Landrum-Griffin would have outlawed altogether recognitional and organizational picketing unless the union could show that at least 30 per cent of the employees had already designated it as their bargaining agent, and even in that event the union would have have been permitted to picket only for a reasonable period, not to exceed 30 days, if no representational petition were filed with the Board to secure a determination of the question of representation.¹⁵ Nor was the second proviso of § 8(b) (7) (C) included in the bill as originally drafted. Objections, however, were raised to these provisions of the Landrum-Griffin bill as being too restrictive,¹⁶ and § 8(b) (7) (C) in its present form was enacted as a compromise.¹⁷ The compromise not only eliminated the 30 per cent requirement, but also, because of constitutional implications respecting free speech,¹⁸ added the second proviso permitting informational picketing to advise "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."¹⁹

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