Paschal v. SHEET METAL WKRS. INTERNAT'L ASS'N, LU NO. 11

• Decision Date: 04 September 1969
• Docket Number: Civ. A. No. 69-1738.
• Citation: 304 F. Supp. 684
• Parties: Charles M. PASCHAL, Jr., Regional Director of the Fifteenth Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL UNION NO. 11, Respondent.
• Court: U.S. District Court — Eastern District of Louisiana

304 F. Supp. 684

Charles M. PASCHAL, Jr., Regional Director of the Fifteenth Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL UNION NO. 11, Respondent.

Civ. A. No. 69-1738.

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

September 4, 1969.

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Charles M. Paschal, Jr., H. Sloan McCloskey, New Orleans, La., for petitioner.

Sidney W. Provensal, Jr., New Orleans, La., for Corrugated Asbestos Contractors, Inc.

Victor H. Hess, Jr., New Orleans, La., Donald W. Fisher, Toledo, Ohio, for respondent.

RUBIN, District Judge:

FINDINGS OF FACT AND OPINION

The verified petition of Charles M. Paschal, Jr., Regional Director of the Fifteenth Region of the National Labor Relations Board ("the Board"), seeks a temporary injunction pursuant to Section 10(l) of the National Labor Relations Act, as amended ("the Act"), pending the final disposition of the matters involved herein pending before the Board. A hearing on the issues raised by the petition and answer was duly held on August 12, 1969. All parties were afforded a full opportunity to be heard, to examine and cross-examine witnesses, to present evidence bearing on the issue, and to argue on the evidence and the law. The Court has fully considered the petition, answer, evidence, arguments, and briefs of counsel. Upon the entire record, the Court makes the following:

Findings of Fact

1. On or about May 29, 1969, Corrugated Asbestos Contractors, Inc. ("Corrugated Asbestos") filed a charge with the Board alleging that Sheet Metal Workers International Association, Local Union No. 11 ("Local 11") was engaging in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii), subparagraph (D), of the Act, 29 U.S.C. § 158(b) (4) (i) (ii) (D).

2. The charge was referred to the Petitioner as Regional Director of the Fifteenth Region of the Board.

3. Local 11 maintains its principal office at New Orleans, Louisiana; it is now and has been engaged within this judicial district in transacting business and promoting and protecting the interests of its employee members. Its business manager is Sidney LeBlanc, Jr.

4. Corrugated Asbestos, a Louisiana corporation with its principal office and place of business located at New Orleans, Louisiana, is engaged in the business of engineering, finishing, fabricating and directing the installation of industrial sheeting and accessories. Corrugated Asbestos annually purchases and receives goods and materials from directly outside the State of Louisiana, exceeding $50,000 in value each year.

5. Corrugated Asbestos is, and has been at all times material herein, engaged in commerce and in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act, 29 U.S.C. § 152(6) (7).

6. Since on or about May 1, 1966, Corrugated Asbestos has been a party to a collective bargaining agreement with Local 11 providing, inter alia, that Local 11 "shall be the sole and exclusive source of referrals of applicants for employment" with Corrugated Asbestos.

7. Since about 1958, Corrugated Asbestos has been a party to various collective bargaining agreements with the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO ("the Iron Workers").

8. Local 11 has not been certified by the Board as the collective bargaining representive of any of Corrugated Asbestos' employees engaged in the installation of Reynolds V-beam siding, nor has the Board issued an order directing Corrugated Asbestos to bargain with Local 11.

9. Since about 1960, Corrugated Asbestos has been assigning the work of installing Reynolds V-beam siding to its employees who are represented by, or members of, the Iron Workers, rather than to its employees who are represented by, or members of, Local 11.

10. Since on or about April 25, 1969, Local 2, Sheet Metal Workers International Association ("Local 2"), which has its principal place of business in Kansas City, Missouri, has demanded that Corrugated Asbestos assign the work of installing Reynolds V-beam siding to employees who are represented by, or who are members of it, rather than to employees who are represented by, or members of, the Iron Workers. Corrugated Asbestos has refused to accede to these demands.

11. In furtherance of its demands, Local 2 caused a grievance to be filed against Corrugated Asbestos under the terms of the collective bargaining agreement with Local 11. Corrugated Asbestos concedes that this agreement applied to its work in Kansas City and to its relations with Local 2.

12. The collective bargaining agreement contains both a grievance procedure and a procedure for determining jurisdictional disputes. Grievances are determined by a procedure culminating with an appeal to the National Joint Adjustment Board for the Sheet Metal Industry ("The Sheet Metal Industry Board"). Jurisdictional disputes are presented to the National Joint Board for the Settlement of Jurisdictional Disputes. Despite the similarity in name to the Sheet Metal Industry Board, this is an entirely different group, set up to determine work assignments in jurisdictional dispute cases under the terms of Article XVII of the collective bargaining contract.

13. Corrugated Asbestos contended that the demand by Local 2 was a jurisdictional dispute, not a grievance. However, the Sheet Metal Industry Board decided that the dispute was a grievance and determined that Corrugated Asbestos was violating the collective bargaining agreement by not assigning the work to journeymen sheet metal workers. It assessed damages in the amount of $12,733.20, to be paid to designated charities, and further decreed that, if Corrugated Asbestos failed to comply with the award, its agreement with Local 11 "shall stand automatically cancelled."

14. On July 19, 1967, The International Sheet Metal Workers Association ("The International") forwarded a copy of the award to Local 11, with instructions that "Corrugated Asbestos Contractors has a period of thirty days from this date to comply with the decision."

15. On December 13, 1968, the Sheet Metal Industry Board ordered the contract between Local 11 and Corrugated Asbestos cancelled.

16. In furtherance of this order, on May 8, 1969, Local 11 cancelled its collective bargaining agreement with Corrugated Asbestos, effective May 31, 1969. As a consequence of this, since on or about June 2, 1969, Local 11 has caused Corrugated Asbestos' employees who are represented by, or who are members of it, to cease work and, since on or about June 2, 1969, Local 11 has refused to refer any additional employees to Corrugated Asbestos.

17. It may be fairly anticipated that, unless enjoined, Local 11 will continue or repeat the acts and conduct set forth in paragraph 16 above or, similar or like acts and conduct in violation of Section 8(b) (4) (i) and (ii), subparagraph (D), of the Act.

OPINION

The Act provides in part:

"It shall be an unfair labor practice for a labor organization or its agents — * * * to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in any industry affecting commerce to engage in a strike or a refusal in the course of his employment to * * * process, * * * or otherwise handle or work on any goods, * * * or to perform any services; * * * where * * * an object thereof is — * * * forcing or requiring any employer to assign particular work to employees in a particular labor organization * * * rather than to employees in another labor organization * * * unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work. * * *" Section 8(b) (4) (i) (ii) (D), 29 U.S.C. § 158(b) (4) (i) (ii) (D).

Local 11 contends that it had no dispute with Corrugated Asbestos. Its argument is that Corrugated Asbestos was bound by the arbitration award and, when Corrugated Asbestos refused to comply with it, the business manager of Local 11 reluctantly told Corrugated's President that he was going to cancel the agreement with Corrugated Asbestos "because those were his instructions." It is also urged that Corrugated's employees who were members of Local 11 thereupon "all voluntarily quit their employment. They are not on strike, picketing or otherwise temporarily withholding their services, nor are they on lay off or leave status. They have now left their employment status with Corrugated."

Local 11 has cancelled its contract with Corrugated Asbestos, refused to refer its members to Corrugated Asbestos for hiring, and, by notifying its members of termination of the collective...