McLeod v. Drivers and Chauffeurs Local Union No. 816

• Decision Date: 02 November 1959
• Citation: 178 F. Supp. 288
• 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, v. DRIVERS AND CHAUFFEURS LOCAL UNION NO. 816, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of New York

178 F. Supp. 288

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, v. DRIVERS AND CHAUFFEURS LOCAL UNION NO. 816, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Respondent.

United States District Court S. D. New York.

November 2, 1959.

James M. Fitzpatrick and Raymond J. Malloy, Washington, D. C., Attys., N. L. R. B., for petitioner.

Cohen & Weiss, New York City, for respondent. Jack Last, New York City, of counsel.

Charles Barnhill, Chicago, Ill., for charging party, Montgomery Ward & Co.

RYAN, Chief Judge.

This proceeding comes to us on the petition of Ivan C. McLeod, Regional Director of the Second Region of the National Labor Relations Board, filed under Section 10(l) of the National Labor Relations Act, as amended, 29 U.S. C.A. § 141 et seq., after a preliminary investigation, and it seeks a temporary injunction pending the final disposition of charges filed by Montgomery Ward and Company. The charges allege that respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b) (4) (A), (B) and (D) of the Act.

It is alleged that the unfair labor practices charged were in part committed at 75 Varick Street, New York City, in this judicial district. Respondent, Local Union No. 816, is a labor organization within the meaning of the act, functioning and acting within this district. We conclude that this court has jurisdiction.

The Act empowers the Board, after the filing of appropriate charges, to hear and determine complaints that employers or labor organizations have engaged in unfair labor practices within the meaning of the Act (Sections 10(a), (b) and (c) of the Act).

To restore or preserve the status quo pending final disposition by the Board and "to protect the public welfare", it was provided in section 10(l) of the Act that:

"Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (A), (B), or (C) of section 8(b), * * * the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper * * *".

We find there is reasonable cause to believe that a violation of the Act, as charged, has been committed and conclude that equitable relief is just and proper. We are not now called upon to finally determine the charges are true or whether a violation has been committed. The petition alleges that the unfair labor practices with which respondent is charged have impeded and disrupted and tend to impede and disrupt the business of Montgomery Ward and we so find.

Montgomery Ward operates retail stores, offices and distribution centers throughout the country. Its distribution center for women's apparel and other merchandise (called New York Fashion Pool) is located at 75 Varick Street, New York City, where the women's apparel purchased for resale is received, processed and shipped to stores throughout the country. It is engaged in interstate commerce.

The following facts, which led to the charged unfair practices, do not appear to be in dispute.

Montgomery Ward has no trucks of its own at the Fashion Pool. It contracts with various motor carriers to supply vehicles and drivers for this operation. One of these contracts, with Metropolitan Motorways Inc. (a subsidiary of the Hertz Corp.), was in effect on August 31, 1959. Under this contract, Motorways supplied two trucks and drivers to Montgomery Ward for use at the Fashion Pool. The two drivers who manned these trucks were members of respondent union which had a collective bargaining agreement with Motorways covering the employment of these two men. At midnight on August 31, 1959, this contract was terminated, pursuant to a clause in the contract and respondent's men were informed by Motorways that their services were no longer required.

On September 1, 1959 Sidel Truck Leasing Corp. under a new contract with Montgomery Ward began to supply two trucks and two drivers to replace those heretofore supplied by Motorways. Sidel had a bargaining agreement with another local and the drivers supplied were members of that local. A business agent of respondent and the two men who had been let go by Motorways appeared on that day at the Montgomery Ward's Varick Street office and demanded that the two men be rehired to drive the trucks of Sidel and be paid for the day they were losing. An executive of Montgomery Ward took the position that the men had never been employees of Montgomery Ward, that they had no rights as employees, and that Montgomery Ward had no duty to employ them.

Respondent also contacted Sidel and demanded that the two men, who had previously worked for Motorways, be employed by Sidel in the same capacity. Sidel, after consulting the local with which it had signed, refused to do so.

On September 2, 1959, picketing began both at Montgomery Ward's Varick Street address and also at the parking lot where Sidel kept its trucks. Employees of Montgomery Ward, Sidel and other employees were induced not to cross the picket lines and as a result shipments from Montgomery Ward's New York Fashion Pool were either discontinued or seriously curtailed.

Respondent does not deny the factual details. Respondent claims, however, that this picketing was not unlawful since Montgomery Ward was either the primary employer of these discharged drivers or at least that Montgomery Ward and the discharged drivers were so intertwined with respect to employment that Montgomery Ward should not and could not be protected by Section 8(b) (4) of the Act.

Respondent further claims that if Montgomery Ward was a party to the dispute, or was not a neutral or an innocent bystander then the Act affords it no protection. With this latter premise, we agree. Douds v. Metropolitan Federation of Architects, Engineers, Chemists and Technicians Local 231, D. C., 75 F.Supp. 672. The status of Montgomery Ward in this situation is the pivotal point to be decided here. We must determine whether the picketing was properly exercised as against Montgomery Ward, and that depends on whether Montgomery Ward occupied the position of actual...