McLeod v. Compressed Air, Foundation, Tunnel, etc., Wkrs.

• Decision Date: 11 July 1961
• Docket Number: No. 425,Docket 27020.,425
• Parties: Ivan C. McLEOD, Regional Director of the Second Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee, v. COMPRESSED AIR, FOUNDATION, TUNNEL, CAISSON, SUBWAY, COFFERDAM, SEWER CONSTRUCTION WORKERS, LOCAL NO. 147 OF NEW YORK, NEW JERSEY STATES AND VICINITY, AFL-CIO, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

292 F.2d 358 (1961)

Ivan C. McLEOD, Regional Director of the Second Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee, v. COMPRESSED AIR, FOUNDATION, TUNNEL, CAISSON, SUBWAY, COFFERDAM, SEWER CONSTRUCTION WORKERS, LOCAL NO. 147 OF NEW YORK, NEW JERSEY STATES AND VICINITY, AFL-CIO, Respondent-Appellant.

No. 425, Docket 27020.

United States Court of Appeals Second Circuit.

Argued June 20, 1961.

Decided July 11, 1961.

I. Philip Sipser, New York City (Paul O'Dwyer and John S. Williamson, Jr., New York City, on the brief), for respondent-appellant.

Winthrop A. Johns, Asst. Gen. Counsel, N. L. R. B., Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, and Jacques Schurre, Atty., N. L. R. B., Washington, D. C., on the brief), for petitioner-appellee.

Before CLARK and SMITH, Circuit Judges, and DAWSON, District Judge.

DAWSON, District Judge.

This is an appeal from an order of the United States District Court for the Eastern District of New York (Bartels, D. J.) granting an injunction under section 10(j) of the National Labor Relations Act, 29 U.S.C.A. § 160(j).¹

Section 10(j) authorizes the National Labor Relations Board (hereinafter called "the Board"), upon issuance of an unfair labor practice complaint, to petition a United States District Court for appropriate injunctive relief. The court is empowered to grant "such temporary relief or restraining order as it deems just and proper." A prerequisite to the granting of such relief is a finding by the District Court that reasonable cause exists to believe that a violation of the Act, as charged, has been committed. The District Court does not have to determine whether, in fact, the violation has been committed; the determination with respect to this question is reserved to the Board, subject to review by the courts of appeals.

On appeal from the District Court this court is limited to the question of whether the District Court was, or was not, reasonable in concluding that the Regional Director had cause to believe that the charges were true. Douds v. Milk Drivers & Dairy Employees Union, 2 Cir., 1957, 248 F.2d 534. See also, Douds v. International Longshoremen's Ass'n, 2 Cir., 1957, 241 F.2d 278.

The unfair labor practice charged herein is that appellant, in violation of section 8(b) (3) of the Act (which section requires unions to bargain collectively with employers), went on strike against the charging party for contract changes during the term of contract and without first giving the federal and state conciliation services 30 days notice of the contract dispute. Section 8(d) of the Act provides in part:

"* * * where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification —

"(1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification;

* * * * * *

"(3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred, provided no agreement has been reached by that time; and

"(4) continues in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later."

The essential facts in the present case are not in controversy. It appears that Andrew Catapano Company, Inc. and Grow Construction Company, Inc. (hereinafter called "C-G"), the charging party, is a joint venture engaged principally in constructing sewers, tunnels, highways and related projects. A contract between appellant and C-G was executed in 1957 and modified in 1958 and 1959. It provided that the contract was to continue in effect until the completion of a job in connection with the construction of a sewer for the City of New York on Kent Avenue, Brooklyn, unless terminated prior thereto pursuant to a clause permitting the contract to be reopened as to wages prior to June 1, 1960.

On or about May 25, 1960, appellant served written notice on C-G and other employers in the industry of its desire to commence joint wage negotiations. The notice invoked the reopening clause of the contract. Several meetings were held by the parties, but no agreement was reached. In one of the meetings the union proposed the execution of a contract identical with the contract between appellant and Poirier & McLane (the P-M contract) which contained many provisions relating to...