Penello v. INTERNATIONAL BRO. OF ELECTRICAL WKRS., LOCAL 26

• Decision Date: 28 October 1963
• Docket Number: Civ. A. No. 2450-63.
• Citation: 223 F. Supp. 44
• Parties: John A. PENELLO, Regional Director, National Labor Relations Board, Plaintiff, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 26, et al., Defendants.
• Court: U.S. District Court — District of Columbia

223 F. Supp. 44

John A. PENELLO, Regional Director, National Labor Relations Board, Plaintiff, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 26, et al., Defendants.

Civ. A. No. 2450-63.

United States District Court District of Columbia.

October 28, 1963.

Benjamin K. Blackburn, Baltimore, Md., for plaintiff.

Ronald Rosenberg, Washington, D. C., for defendants.

HOLTZOFF, District Judge.

This is an application by the National Labor Relations Board for a temporary or interlocutory injunction to restrain a labor union from certain specified activities during the pendency of a proceeding before the Board. The application is presented under the provisions of Section 10(1) of the National Labor Relations Act, found in 29 U.S.C. § 160(1). This statute in effect provides that whenever it is charged that any person has engaged in any one of certain specified unfair labor practices and if, after making a preliminary investigation, the Regional Director or Regional Attorney of the National Labor Relations Board has reasonable cause to believe such charge is true and that a complaint should issue, he shall on behalf of the Board petition for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter.

When this proceeding was instituted there were two charges of unfair labor practices presented. One was a threat on the part of the respondent union to force or require an employer to assign particular work to employees of the respondent union. This unfair labor practice is defined in 29 U.S.C. § 158(b) (4) (ii) (D). There was also another charge, namely, a threat to carry out or institute what is generally known as a secondary boycott. The second charge is not being pressed and the Court therefore will direct its attention only to the first charge. It might be said that perhaps the reason why the second charge is not being pressed is that the affidavits submitted on this motion do not establish the existence of the alleged offense contained in the second charge.

This case involves a jurisdictional dispute between two unions. It relates to the construction of the second New House Office Building now in process of erection in this City. The prime contractor for the construction of the building is McCloskey & Company. One of the subcontractors is a joint venture known as Foley-Ernst, which has a contract for some of the electrical work and some of the work of constructing ceilings in the building. One of the functions of the sub-contractor was to hang or construct so-called egg crate ceilings. It is understood from the oral argument that an egg crate ceiling is a ceiling which, among other things, has apertures through which electrical fixtures are hung. Originally the employees engaged in doing this work for the sub-contractor were electricians who were members of the Electrical Workers Local 26 of the International Brotherhood of Electrical Workers. Sheet metal workers, however, represented by Sheet Metal Workers Local 102 of the Sheet Metal Workers International Association claimed that the work should properly be assigned to them. Some time ago there was established by the American Federation of Labor-Congress of Industrial Organizations, a National Joint Board for settlement of jurisdictional disputes in the building and construction industry. This Board was created by joint action of the labor unions and some of the builders engaged in that industry. This Board held hearings in order to determine the controversy between Local 26, representing the electricians, and Local 102, representing the sheet metal workers. The Board awarded the work to the sheet metal workers. It appears, however, that the electricians were not willing to acquiesce in this decision and neither was Foley-Ernst because Foley-Ernst preferred to continue to have the work done by electricians for some reason best known to itself.

McCloskey, the prime contractor, thereupon filed two charges with the National Labor Relations Board, one being a threat of a secondary boycott, which has been abandoned, and the other being that Local 26 refused to abide by the award and threatened McCloskey and Foley-Ernst with work stoppages and strikes if sheet metal workers were hired to do the job as required by the award of the National Joint Board. In the meantime the work on the ceilings has stopped and nothing has been done on them, according to the papers and statements of counsel, since September 9th. While the work on the building is continuing, it is stated that the suspension of the work on the ceilings may result in a delay of completion of the entire structure.

The Board has issued or filed a complaint. The Regional Director thereupon filed a petition for a preliminary or temporary injunction to continue until the disposition of the complaint by the Board. The Regional Director alleges that he has reason to believe the charges to be true.

At the outset it is necessary to bear in mind the function of the Court in passing upon an application for an injunction authorized by the statutory provision, to which reference has been made, as well as the limitations on the powers and authority of the Court in that connection. The Court does not determine whether the charges have in fact been sustained and whether the respondent union, in this case Local 26, is actually guilty of an unfair labor practice. If there is a conflict in the evidence, the Court does not resolve the conflict. All these matters are for the determination of the Board and the Court would be going beyond the function reposed in it by statute if it attempted to make findings of fact or conclusions of law that would definitively determine either questions of fact or questions of law. The only function of the Court is to decide whether there is probable cause to believe the charge or the charges to be true. The Court must stop at that point. For the Court to ascertain the facts would be going beyond its function and attempting to do what the law leaves to the National Labor Relations Board. If the Court attempted to make such findings, they would have no legal or binding effect. Actually, they might hamper or embarrass the Board in performing its functions.

These propositions of law are well established by the authorities. Thus, in Douds v. Milk Drivers and Dairy Employees Union, Local 584, 2 Cir., 248 F. 2d 534, 537, the Court of Appeals for the Second Circuit stated:

"The District Court was not required to make final or even preliminary findings as to the truth or falsity of the facts alleged in the petition of the Director. By the terms of § 10(1) the Court's function is limited to ascertaining whether the Director could have `reasonable cause to believe' that the charges filed were true and to granting such equitable relief `as it deems just and proper.'"

In McLeod for and on Behalf of N. L. R. B. v. Compressed Air Foundation Etc., Local 147, 194 F.Supp. 479, 481, affirmed by the Court of Appeals for the Second Circuit in 292 F.2d 358, the Court stated:

"On an application of this nature the Court may not determine whether

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