McLeod v. LOCAL 239, INTERNAT'L BRO. OF TEAMSTERS, ETC.

• Decision Date: 07 January 1960
• Docket Number: Civ. No. 20331.
• Citation: 179 F. Supp. 481
• 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. LOCAL 239, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Respondent.
• Court: U.S. District Court — Eastern District of New York

179 F. Supp. 481

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. LOCAL 239, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Respondent.

Civ. No. 20331.

United States District Court E. D. New York.

January 7, 1960.

COPYRIGHT MATERIAL OMITTED

Ivan C. McLeod, Regional Director of the Second Region, N.L.R.B., for petitioner. Jacques Schurre, Washington, D. C., of counsel.

Katz & Wolchok, New York City, for respondent. Charles R. Katz, New York City, of counsel.

Bruno Baratta, Mineola, N. Y., for Charging Party, Stan-Jay Auto Parts and Accessories Corp.

BARTELS, District Judge.

This proceeding comes before the Court upon the petition filed by the Regional Director of the National Labor Relations Board pursuant to § 10(l) of the National Labor Relations Act, as amended, § 160(l) of 29 U.S.C.A. § 151 et seq. (herein referred to as the "Act") for a temporary injunction pending a final adjudication by the Board of a charge filed with it by Stan-Jay Auto Parts and Accessories Corporation (herein called "Stan-Jay"). The charge alleges that the respondent is engaged in an unfair labor practice within the meaning of § 8(b) (7) (C) of the Act (effective November 13, 1959), which section proscribes certain recognition and organizational picketing. The petition is predicated upon the conclusion of the Board that there is reasonable cause to believe that the respondent has engaged in the unfair labor practice charged and that a complaint of the Board based upon the charge should issue. Stan-Jay filed its charge on November 23, 1959 and on December 2, 1959 an Order to Show Cause why injunctive relief should not be granted was signed by this Court, returnable on December 10, 1959, when a hearing was held. At the hearing the respondent claimed that the preliminary investigation required to be made by the Board was not alleged and that the petition was jurisdictionally defective. Evidence, however, was adduced to show that a preliminary investigation had been made and permission was accordingly granted to amend the petition to conform to the proof. Testimony was heard from Allen Jay, the president of Stan-Jay, and from Mac Sherman, the recording secretary of the respondent. Krieger, the business agent of the respondent who had negotiations with Allen Jay, was not called as a witness.

Stan-Jay is located at Long Beach, Long Island, and is in the business of selling and distributing automotive parts and accessories and is thus engaged in commerce within the meaning of the Act. It employs five persons, a female bookkeeper and four men who wait on the counter, make telephone calls for merchandise, stock shelves, load delivery wagons and make deliveries to customers. Respondent does not represent any of Stan-Jay's employees and has not filed for an election under the Act.

On September 14, 1959, Stan-Jay was visited by Sam Krieger, the business agent of the respondent, accompanied by Mac Sherman, its recording secretary, and a third person. At that time Krieger informed Stan-Jay that there was a drive on and its "turn had come" for a contract and the respondent meant to have a contract. Allen Jay on behalf of Stan-Jay refused to sign a contract because he claimed the Union had nothing to offer Stan-Jay's employees which they did not already have. Krieger told Allen Jay "If you don't join up we will throw a picket line in front of the place here and you get no merchandise and no deliveries." Krieger then left a proposed contract, containing recognition and Union shop clauses, with Allen Jay for signature but Allen Jay never signed it. There was also testimony that after the picketing began on September 21st, every truck bringing supplies to Stan-Jay had been turned away and that thereafter and up to the present time Stan-Jay has been compelled to pick up supplies in its own truck.

On September 21, 1959, four people picketed Stan-Jay's store in Long Beach, carrying signs (referred to herein as sign No. 1) with the following legend:

LOCAL 239 I. B. OF T.

WANTS THE EMPLOYEES OF STAN-JAY 452 LONG BEACH BOULEVARD, LONG BEACH

TO JOIN THEM TO GAIN UNION WAGES, JOB SECURITY AND WORKING CONDITIONS.

AUTOMOTIVE PARTS AND SPECIALTY PRODUCTS DRIVERS, HELPERS, WAREHOUSEMEN, TEAMSTERS

210-01 NORTHERN BOULEVARD, L. I.

The picketing has continued from September 21, 1959 to date with the exception that only two pickets were used on October 26th and thereafter. There was a substitution of signs carried by the pickets on October 27th and again some time after November 13th. Stan-Jay claims that the second sign (referred to herein as sign No. 2), reading as follows:

LOCAL 239 I. B. OF T.

WANTS THE EMPLOYEES OF STAN-JAY IS STINGY 452 LONG BEACH BOULEVARD, LONG BEACH

TO JOIN THEM TO GAIN UNION WAGES, JOB SECURITY AND WORKING CONDITIONS.

AUTOMOTIVE PARTS AND SPECIALTY PRODUCTS DRIVERS, HELPERS, WAREHOUSEMEN, TEAMSTERS

210-01 NORTHERN BOULEVARD, L. I.

was used from October 27th to about the end of November or the first part of December and that from the first part of December to date a third sign (referred to herein as sign No. 3) was used, reading as follows:

TO THE PUBLIC PLEASE BE ADVISED STAN JAY AUTO PARTS DOES NOT

EMPLOY MEMBERS OF, NOR HAS A CONTRACT WITH ANY LABOR UNION INCLUDING LOCAL 239 I. B. OF T.

The respondent claims that since November 13th the only sign carried by the pickets was sign No. 3.

After November 13th Krieger had another conversation with Allen Jay and that was on November 20th, after Stan-Jay had brought a load of mufflers and tailpipes in its own truck to its place of business in front of the pickets. At that time the discussion began by each side claiming to have won the last court proceeding decided by this Court on November 17th, involving a secondary boycott injunction. At the same time Krieger again mentioned the proposed contract with respondent containing recognition and Union shop clauses, and stated that it would be an easy contract requiring only two men to join the Union. The recording secretary of the respondent admitted that respondent never notified Stan-Jay that it had withdrawn its previous demand for recognition and never notified Stan-Jay that it was no longer interested in organizing employees of Stan-Jay. The respondent explains this by stating that it never made any demands for Union recognition prior to November 13th.

It is unnecessary to repeat the text of § 10(l) of the Act granting this Court jurisdiction to decree such injunctive relief as it deems "just and proper". It has been repeated and interpreted by many decisions. Its purpose is to enable the Court under certain circumstances to preserve the status quo pending the final adjudication by the Board of a charge of unfair labor practice. Schauffler v. United Association of Journeymen, 3 Cir., 1955, 218 F.2d 476, 480, certiorari denied 1956, 352 U.S. 825, 77 S.Ct. 34, 1 L.Ed.2d 48. Before the Board may petition this Court for appropriate injunctive relief, the charge must be investigated and after a preliminary investigation the Board must have "reasonable cause to believe such charge is true and that a complaint should issue". Once the petition is filed it is the role of this Court to ascertain whether the Board had "reasonable cause to believe" that the charge was true. Douds v. Milk Drivers and Dairy Employees Union, 2 Cir., 1957, 248 F.2d 534, 538; Alpert v. Truck Drivers, D.C.Me.1958, 161 F.Supp. 86. No criteria is set forth in the statute for determining whether the Board had such "reasonable cause to believe" and the Court is remanded to the same principles employed in the exercise of its discretion for injunctive relief in similar cases. It has permissive range to exercise its discretion to grant or to deny its writ. United Brotherhood of Carpenters and Joiners of America, Dist. Council of Kansas City, Mo., and Vicinity, A. F. of L. v. Sperry, for and on Behalf of N. L. R. B., 10 Cir., 1948, 170 F.2d 863, 869. In other words, it does not rubberstamp the Board and automatically issue an injunction. Alpert v. United Steelworkers of America, D.C. Mass.1946, 141 F.Supp. 447; Douds v. Knitgoods Workers' Union, D.C.N.Y., 1957, 148 F.Supp. 615. Nor, in order to grant relief, is it necessary for the Court to find that the charges filed are true and that, in fact, there has been a violation of the Act. Penello v. Milk Drivers and Dairy Employees Local Union No. 246, D.C.Md.1957, 156 F.Supp. 366, 368; Madden v. International Organization of Masters, Mates & Pilots, 7 Cir., 1958, 259 F.2d 312, certiorari denied 1958, 358 U.S. 909, 79 S.Ct. 236, 3 L.Ed.2d 229; Douds v. Milk Drivers and Dairy Employees Union, supra. Similarly, the denial of injunctive relief at this stage of the proceeding is not a judicial indication that the charges filed are untrue. Compare, Alpert v. United Steelworkers of America, supra, and N. L. R. B. v. United Steelworkers of America, 1 Cir., 1957, 250 F.2d 184.

The primary question before this Court is the determination whether the Board had "reasonable cause to believe" that there has been a violation of the Act. In making this determination the Court not only appraises the general scope of the facts but also such authorities as there may be which are applicable to those facts. Alpert v. United Steelworkers of America, supra, 141 F.Supp. at page 450. It has been held that the requirement placed upon the Board is met by a showing that there is sufficient evidence to "demonstrate that there was a basis for the Board's finding". Douds v. International Longshoremen's Association, 2 Cir., 1957, 242 F.2d 808, 810.

In the light of the above principles, the application of the law to the facts in this case may now be considered. The unfair labor practice charged is a violation of § 8(b) (7) (C) of the Act, which proscribes certain recognition and...