National Labor Relations Board v. Swift & Company, Civ. A. No. 9793(1).

• Decision Date: 25 March 1955
• Docket Number: Civ. A. No. 9793(1).
• Citation: 130 F. Supp. 214
• Court: U.S. District Court — Eastern District of Missouri
• Parties: NATIONAL LABOR RELATIONS BOARD, Plaintiff, v. SWIFT & COMPANY, Defendant.

130 F. Supp. 214

NATIONAL LABOR RELATIONS BOARD, Plaintiff, v. SWIFT & COMPANY, Defendant.

Civ. A. No. 9793(1).

United States District Court E. D. Missouri, E. D.

March 25, 1955.

G. Carroll Stribling and Harold A. Thomas, Jr., St. Louis, Mo., Fordyce, Mayne, Hartman, Renard & Stribling, St. Louis, Mo., for defendant.

Norton J. Come and Duane Beeson, Assts. to Gen. Counsel, N.L.R.B., Washington, D. C., for plaintiff.

Mozart G. Ratner, Chicago, Ill., Jacobs, Kamin & Ratner, Chicago, Ill., and Harry H. Craig, St. Louis, Mo., Wiley Craig & Armbruster, St. Louis, Mo., for Local Union No. 88, Amalgamated Meat Cutters and Butcher Workmen of North America, A.F.L.

MOORE, Chief Judge.

This is an action by National Labor Relations Board and a request for a preliminary injunction restraining respondent Swift & Company from in any manner seeking to enforce or avail itself of the benefits of a temporary restraining order which respondent obtained from the Circuit Court of the City of St. Louis, Missouri, against Local Union No. 88, Amalgamated Meat Cutters and Butcher Workmen of North America, A.F.L. and certain of its agents. Respondent's petition in the State Court action alleged that it was engaged in Interstate Commerce and that it and its employees were subject to the provisions of the Labor Management Relations Act of 1947 as amended 29 U.S.C.A. § 141 et seq.; that the Union, in furtherance of a campaign to organize respondent's salesmen, was picketing the respondent's plant and engaging in other activities for the purpose of interfering with and obstructing the business of the Company and its union-employees, as well as its non-union salesmen, so that company would be forced to influence, threaten, coerce and intimidate the said non-union salesmen to join the Union, though the Union did not claim to represent any of the salesmen nor any other of the Company's union employees.

The State Court petition further alleged that the purposes in the picketing at various entrances to the company's plant were in violation of both the Labor Management Relations Act and Missouri law.

It further alleged that the Union had engaged in secondary boycotts at the places of business of the company's customers, in direct violation of the Labor Management Relations Act.

The petition contained a prayer for and an ex parte temporary restraining order was issued only against the picketing activities at the company plant.

The Board's Complaint in this action alleges that the State Court subsequently held a hearing on the matter but has not rendered a decision as yet and the temporary restraining order remains in effect. It further alleges that the respondent company, subsequent to the hearing in the State Court, filed two charges with the Regional Director of the Board: one charge alleging unfair labor practices against the Union by reason of the same picketing at respondent's plant in violation of Sections 8(b) (1) (A) and 8(b) (2) of the Act, 29 U.S.C.A. § 158(b) (1) (A) and (b) (2); and the second alleging secondary boycott activities by the Union in violation of Section 8(b) (4) of the Act.

The Regional Director, it is alleged, made a preliminary investigation of the two charges and then dismissed the charge based on the picketing, which ruling was affirmed on appeal to the General Counsel of the Board. The Regional Director issued a Complaint, however, on the secondary boycott charge, and immediately petitioned this Court for temporary relief under Section 10(l) of the Act. Subsequently the Board filed the present suit to restrain the company from taking advantage of the State Court order.

This Court has in the secondary boycott case held a hearing and issued a temporary restraining order pending final adjudication by the Board.

The Board's position in the instant case is that the system of regulation provided in the Labor Management Relations Act for protection against the Union Activity charged in both the State Court suit and in the Section 8(b) (1) (A) and (b) (2) charge before the Regional Director, is exclusive, and that the State Court restraining order irreparably impairs the Congressional objective and decision of the Board agents; that the Board has assumed jurisdiction of the alleged Union activity and therefore seeks to remove the State Court intrusion of conflicting regulation upon the field pre-empted by the Federal Act. The Board further argues that this case is controlled by the recent Supreme Court cases of Garner v. Teamsters, Chauffeurs & Helpers Local Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228 and Capital Service, Inc., v. N. L. R. B., 347 U.S. 501, 74 S.Ct. 699, 98 L.Ed. 887.

The respondent contends that the picketing enjoined by the State Court is not an activity which the Board has power to prevent as an unfair labor practice and that it is not a protected activity under the national Act; that even if it is, where the Board has declined to exercise its jurisdiction through a refusal of the Regional Director or the General Counsel to issue a Complaint, the State Court has jurisdiction to entertain the suit under State law because the denial of it in those circumstances would deprive respondent of due process of law; and, further, that this court has no power to enjoin the State Court action under Section 2283 of Title 28 U.S.C.A.

There has been filed in this action a motion by the Union to intervene as complainant with proposed Complaint attached, which merely adopts the Complaint of the Board. This matter was taken as submitted with the case upon hearing, and that motion is now denied. The Union will not be bound by any judgment in this action but may continue to defend its position in the State Court and seek review there if it desires. Of course, there are common questions of law and fact in the claims of the Board and the Union, but the Court has in its discretion decided to deny permissive intervention on the ground that it feels that control of the litigation should be in the hands of the Board. On the jurisdictional question see and compare Amalgamated Clothing Workers v. Richman Bros., 6 Cir., 211 F.2d 449. However, the Court feels that the Union should be permitted to participate in this case as amicus curiae, and it has been so treated.

The Board argues that the picketing alleged here was exactly the same as that referred to in Garner v. Teamsters, Chauffeurs & Helpers Local Union, supra. In that case the Court stated, 346 U.S. loc. cit. 487, 74 S.Ct. loc. cit. 164: "The courts below found that respondents' purpose in picketing was to coerce petitioners into compelling or influencing their employees to join the union." The Court held that the petitioners' grievance fell within the jurisdiction of the National Labor Relations Board to prevent unfair labor practices, citing Sections 8(b) (2), 8(a) (3) and 10 of the Act. 29 U.S.C.A. §§ 158(a, b) and 160. The Court then held that since the petitioners could have presented the grievance to the Federal Board, it was not subject to litigation in the tribunals of the State, and affirmed the judgment of the Supreme Court of Pennsylvania denying the lower State court injunction.

Thus it is apparent that the picketing alleged in the State court here falls broadly within the scope of the Garner decision. However, respondent here presents a very interesting argument that though the picketing was illegal, both under Missouri and Federal law, it was not an unfair labor practice which the Board had power to prevent under Section 8(b) (2) of the Act, because the evidence of the purpose of the picketing was not sufficient to show an attempt to cause the employer to violate Section 8(a) (3), but only to show an attempt to cause the employer to violate Section 8(a) (1).

Section 8(b) (2) reads in part: "It shall be an unfair labor practice for a labor organization or its agents * * * (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) or * * *". 29 U.S.C.A. § 158(b).

Section 8(a) (3) reads in part: "It shall be an unfair labor practice for an employer * * * (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization * * *." 29 U.S.C.A. § 158(a).

Section 8(a) (1) reads in part: "It shall be an unfair labor practice for an employer — (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; * * *."

And Section 157 of Title 29 U.S.C.A., so far as pertinent here, guarantees employees the right to organize or join a labor organization or to refrain therefrom.

Thus it is apparent that conduct of an employer which would be in violation of Section 8(a) (3) would almost always also be a violation of the much broader terms of Section 8(a) (1). But the converse is not true; a great deal of conduct which violates 8(a) (1) could not come within the terms of 8(a) (3), limited to discrimination as to terms or tenure of employment.

This Court rejects the argument of the Board that the national Act preempts the entire field of labor relations as did the Supreme Court in the Garner case 346 U.S. at page 488, 74 S.Ct. at page 164: "The National Labor Management Relations Act, as we have before pointed out, leaves much to the states, though Congress has refrained from telling us how much."

It may be that upon a consideration of the evidence in this case the State court will find that the objectives of the picketing were not to attempt to cause the employer to discriminate against the salesmen in violation of Section 8(a) (3); but the objective might be to compel the employer to engage in conduct in violation of Section 8(a) (1) and in violation of Missouri Constitution 1945, Article I, Section 29, V.A.M.S.

It is obvious that the above determination represents an adjudication upon the evidence, which this Court is not empowered...