Penello v. INTERNATIONAL UNION, ETC.

• Decision Date: 09 February 1950
• Docket Number: Civ. A. No. 275-50.
• Citation: 88 F. Supp. 935
• Parties: PENELLO v. INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA et al.
• Court: U.S. District Court — District of Columbia

88 F. Supp. 935

PENELLO v. INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA et al.

Civ. A. No. 275-50.

United States District Court District of Columbia.

February 9, 1950.

Robert N. Denham, General Counsel, N.L.R.B., Winthrop A. Johns, Assistant General Counsel, Dominick L. Manoli, Washington, D. C., Sidney J. Barban, Baltimore, Md., for petitioner.

Welly K. Hopkins, Harrison Combs, Washington, D. C., Willard P. Owens, Washington, D. C., M. E. Boiarsky, Charleston, W.Va., for respondents.

KEECH, District Judge.

This case is before the court on the complaint of the Regional Director of the Fifth Region of the National Labor Relations Board, on behalf of the Board, for appropriate injunctive relief, pursuant to Section 10(j) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 160(j), pending final adjudication of the Board with respect to certain complaints charging the respondents, International Union, United Mine Workers of America, and its agent John L. Lewis, with unfair labor practices in violation of Sections 8(b)(2) and 8(b) (3) of the Act, 29 U.S.C.A. § 158 (b) (2, 3).

The first defense raised by respondents is that the court has no jurisdiction over the subject matter or the parties, because Section 10(j) of the National Labor Relations Act, as amended, is unconstitutional and void as repugnant to Article III, Sections 1 and 2, and the Fifth Amendment to the Constitution of the United States. This point was not argued by counsel at any length, doubtless for the reason that the Act has been sustained heretofore in a number of cases, including a previous decision by this court.¹ As so dealt with by the respondents, the apparent purpose of counsel was to preserve the point for possible further action.

The same can be said of the second defense, namely, that the petitioner has no right to bring this action because Section 10(j) of the Act provides that such action shall be brought by "the Board," and that the National Labor Relations Board has no authority under the Act or any other provision of law to delegate such power to the local Regional Director. Such delegation has been determined to be lawful.²

Respondents' third, fourth, and fifth defenses may be dealt with together. They allege that the petition and order to show cause herein do not state a claim upon which the relief prayed can or should be granted, and that the facts alleged in the petition do not show that there is reasonable cause to believe that respondents have engaged in unfair labor practices within the meaning of either Section 8(b)(2) or Section 8(b)(3).

The injunction here sought is under statutory provisions enacted by the Congress, and not under the common law. Hence, for guidance the court must look to the act in question and the legislative history, as well as determinations by other tribunals.

Section 1(b) of the Labor Management Relations Act, 29 U.S.C.A. § 141(b), provides:

"Industrial strife which interferes with the normal flow of commerce and with the full production of articles and commodities for commerce, can be avoided or substantially minimized if employers, employees, and labor organizations each recognize under law one another's legitimate rights in their relations with each other, and above all recognize under law that neither party has any right in its relations with any other to engage in acts or practices which jeopardize the public health, safety, or interest.

"It is the purpose and policy of this Act, in order to promote the full flow of commerce, to prescribe the legitimate rights of both employees and employers in their relations affecting commerce, to provide orderly and peaceful procedures for preventing the interference by either with the legitimate rights of the other, to protect the rights of individual employees in their relations with labor organizations whose activities affect commerce, to define and proscribe practices on the part of labor and management which affect commerce and are inimical to the general welfare, and to protect the rights of the public in connection with labor disputes affecting commerce."

The philosophy of the Act is two-fold, first that the legitimate rights of labor and management shall be recognized, and second — and equally important — that neither labor nor management has the right to engage in any practice which will jeopardize the public health, safety, or interest, or which will obstruct the flow of commerce.

To these ends, the Act imposes on both management and labor the duty to bargain collectively, Sec. 8(a)(5) and Sec. 8(b)(3), which is defined by the Act, Sec. 8(d), as "the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party". The Supreme Court has stated, speaking of the duty imposed upon employers by the National Labor Relations Act prior to its amendment and now, under the amended Act, applicable to both employers and labor organizations, National Labor Relations Board v. Sands Mfg. Co., 306 U.S. 332, 342, 59 S.Ct. 508, 513, 83 L.Ed. 682: "The legislative history of the Act goes far to indicate that the purpose of the statute was to compel employers to bargain collectively with their employes to the end that employment contracts binding on both parties should be made." (Emphasis supplied.)

Refusal of an employee to bargain collectively is made an unfair labor practice under the Act, Sec. 8(b)(3). Sections 10(b) and (c) provide for issuance of a complaint by the Board when any person is charged with engaging in such unfair labor practice, for determination by the Board of the truth of such charges, and for issuance by the Board of an order requiring any person found to have engaged or be engaging in such unfair labor practice to desist therefrom. Section 10(j) permits the Board to petition the appropriate district court of the United States for temporary injunctive relief pending its adjudication of an unfair labor practice complaint.

Section 10(j) clearly vests this court with the right to hear and determine controversies such as the one here involved.

Bearing in mind that it is the duty of the court to administer the law as written and not to pass upon the wisdom of its provisions, this court must determine, first, whether the acts charged, as a matter of law, come within the practices defined by the Congress as unfair, specifically, Sec. 8(b)(2) and 8(b)(3), and second, whether the record before the court shows a reasonable probability — the degree of proof requisite to the injunctive relief here sought³ — of the existence of facts showing such unfair labor practices were or are being committed. If both of these propositions are answered in the affirmative as to any one or more of the charges, then the court has authority under Section 10(j) of the Act to grant such injunctive relief as it deems just and proper.

The unfair labor practices on the part of respondents here complained of are:

(1) Refusing to bargain collectively in good faith by insisting that any collective bargaining agreement with the employers provide, as a condition of employment, for a closed shop without compliance by the union with the statutory requirements, Sec. 8(a)(3), prerequisite to every closed shop agreement;

(2) By insisting that any collective bargaining agreement with the employers contain a so-called welfare and retirement fund to be administered so as to provide benefits therefrom for members of the respondent union only;

(3) By insisting that any collective bargaining agreement with the employers contain such provisions as the so-called "able and willing" and "memorial period" clauses contained in prior agreements between the parties, which are designed and intended by respondents to permit them unilaterally to abrogate or suspend the operation of such contract at any time, and to permit respondents unilaterally to determine the period or periods when members of the respondent union shall work, or fix the terms and conditions of employment as respondents may see fit, so that the agreement would in reality not be binding upon the respondent union or its members; and (4) By refusing and failing to accede to the request of the Southern Coal Producers Association for further collective bargaining conferences.

As to the first practice, there is no doubt in the court's mind that insistence by the respondents on inclusion in the wage contract of a closed shop provision without their compliance with the statutory provisions set up by the Congress as a condition precedent to execution of closed shop agreements, is an unfair labor practice under Sections 8 (b)(2) and (3); and, further, the court entertains no doubt but that the record in this case goes beyond the degree of proof required.

As to the second practice, it is the opinion of the court that insistence that the welfare and retirement fund be administered so as to limit the benefits thereunder to union members and their dependents without compliance with the statutory requirements for a closed shop agreement, is in conflict with Section 8 (b)(2) and (3) of the Act. The record supports the probability of this unfair labor practice.

We come next to determination of whether the third unfair labor practice charged, insistence that any collective bargaining agreement include the so-called "able and willing" and "memorial period" clauses of former contracts, is a violation under the terms of Section 8(b)(3) of the Act.

Section 8(b)(3) provides: "It shall be an unfair labor practice for a labor organization * * * to refuse to bargain collectively with an employer * * *."

Section 8(d) of the Act defines the phrase "to bargain collectively" for the purposes of Section 8, ...