Penello v. LOCAL UNION NO. 59, SHEET METAL WKRS. INT. ASS'N

• Decision Date: 21 June 1961
• Docket Number: Civ. A. No. 2336.
• Citation: 195 F. Supp. 458
• Parties: John A. PENELLO, Regional Director of the Fifth Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL UNION NO. 59, SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, AFL-CIO, Respondent.
• Court: U.S. District Court — District of Delaware

195 F. Supp. 458

John A. PENELLO, Regional Director of the Fifth Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL UNION NO. 59, SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, AFL-CIO, Respondent.

Civ. A. No. 2336.

United States District Court D. Delaware.

June 21, 1961.

COPYRIGHT MATERIAL OMITTED

Jerome L. Avedon, Atty., Julius G. Serot, Deputy Asst. Gen. Counsel, Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Winthrop A. Johns, Asst. Gen. Counsel, Joseph I. Nachman, Supervising Trial Atty., Washington, D. C., David C. Sachs, Regional Atty., Region 5, Baltimore, Md., were on the brief), for National Labor Relations Board.

Joseph Donald Craven, Wilmington, Del., for respondent.

John F. Lawless, Wilmington, Del. (Gerard D. Reilly, Washington, D. C., was on the brief), for E. I. du Pont de Nemours and Co., the charging party.

CALEB M. WRIGHT, Chief Judge.

This case arises on a petition by the Regional Director of the Fifth Region of the National Labor Relations Board for injunctive relief under § 10(l) of the National Labor Relations Act, as amended.¹ The petition alleges that respondent Local 59 has engaged in, and is engaging in, acts and conduct in violation of § 8(b) (4) (i) and (ii) (D).² A hearing was held before this Court on May 29, 1961, and, at the close of petitioner's case, respondent moved to dismiss the petition. This is a ruling upon that motion.

Although there is little dispute between the parties as to the material facts, the importance of the legal questions involved warrants an extended discussion of the factual background of this case.

The charging party, E. I. du Pont de Nemours and Company (Du Pont), is engaged in the manufacture of chemicals and related products. The present dispute concerns a program of expansion undertaken by Du Pont at its Seaford, Delaware, Nylon Plant. The expansion consists of two phases, one of which involves modernization of existing facilities and another which concerns construction of a new plant.³ The testimony, although somewhat conflicting among Du Pont employees themselves, was to the effect that the hiring of employees or the sub-contracting of particular work is generally done for the whole operation rather than for each separate phase.⁴ The present expansion program began in August, 1959, and is scheduled to be completed by mid-1962.⁵

Du Pont has no fixed policy in determining who will perform particular tasks in construction or expansion projects such as this. The work might be performed by permanent employees on the Du Pont payroll, it might be assigned to the construction division of the company which could hire other employees directly, or it might be sub-contracted. The key factors in the determination in each case are economic, in the broadest sense of the term.⁶ In large projects, however, Du Pont prefers to take advantage of union hiring facilities.⁷ About 50% of the Seaford operation has been sub-contracted, the rest being handled by Du Pont's construction division.⁸

There are approximately 6,300 man days of sheet metal work involved in the Seaford expansion project.⁹ Since August, 1959, about 1,300-1,500 man days of the total have been accomplished, all on the modernization of existing facilities.¹⁰ No sheet metal work has begun on the new construction.¹¹ Within the next year or so, it is anticipated, therefore, that approximately 5,000 man days of sheet metal work must be performed. Du Pont has, for the last two to two and one-half years employed workers classified as millwrights and ironworkers for this type of work.¹² These employees, who do not belong to Local 59, apparently live in the downstate area of Delaware near Seaford and have been employed through a union hiring hall.¹³

The evidence further shows Sweeney, respondent Local 59's Business Agent, knew for some two years that sheet metal work was being performed at Seaford by employees who were not members of his organization but made no protest.¹⁴ Local 59's members live in the Wilmington, or upstate, area of Delaware.¹⁵ He was, therefore, not interested in what he termed "incidental" sheet metal work.¹⁶ But he was very much interested in the large volume of sheet metal work coming up.¹⁷ Early this year Sweeney approached Trumpore, Du Pont's project manager at Seaford, and inquired several times as to the status of the sheet metal work.¹⁸ Sweeney stated he had to do something to get his men on the job, and asked when there would be sheet metal work in volume. In mid-April, Trumpore told Sweeney this would occur in a month or so.¹⁹ Trumpore, however, had no authority to change the manner in which the work was being done or to establish terms and conditions of employment for employees.²⁰

Although respondent desires the Seaford sheet metal work, its members will not work for Du Pont directly, for as a matter of policy, Local 59, which has not been certified by the NLRB as the representative of any of Du Pont's employees,²¹ will supply labor only to those in contractual relations with it.²² Du Pont refuses to sign such a contract.²³ In order to satisfy respondent, therefore, Du Pont would have to sub-contract all or part of the sheet metal work to a contractor in signed relations with Local 59.²⁴ This has not been a barrier in the past, however, for Du Pont has often sub-contracted such work in the Wilmington area to union contractors²⁵ and has done so at least once in connection with work at Seaford.²⁶

The dispute in this case results from the provisions of Local 59's collective agreement with the sheet metal contractors. Because respondent's members live in the Wilmington area, the agreement provides work in that area will be performed with little or no travel pay. Work in the Seaford area, however, must be compensated not only by the usual wage but also by $10 per day travel pay.²⁷ This extra cost must ultimately be borne by Du Pont, should a union contractor get the work. This would be particularly true if a "fixed fee" contract was employed. This arrangement provides that Du Pont will pay the sub-contractor's costs and establishes a fixed fee to be paid over these costs.²⁸ For practical purposes, therefore, it is Du Pont, rather than the sub-contractors, which determines whether and on what terms and conditions Local 59 will work on its projects.

For this reason, negotiations between Local 59 and certain Du Pont officials were undertaken on Sweeney's initiative.²⁹ The principal stumbling block was the $10 travel requirement. One Du Pont official told Sweeney that Local 59 would get the work if the travel pay issue was straightened out.³⁰ Another indicated that if the union's demands for travel pay were reduced to $5, the sheet metal work would probably be sub-contracted to an employer in signed relations with Local 59.³¹ In any case, Du Pont conducted these negotiations in a manner so as to create in Sweeney's, and thereby the union's mind the impression that the only barrier to Local 59's receiving the work was the $10 travel pay demand. Although witnesses for Du Pont were somewhat equivocal on this point, no other reason appears in the record.³²

Local 59 and Du Pont failed to agree on this issue. On May 3, 1961, Local 59 began to picket the site of Du Pont's Seaford operations.³³ The picketing later spread to other Du Pont facilities throughout the state.³⁴ As a result, the employees of certain sub-contractors at the Seaford construction site have refused to cross the picket line, and 70% of the job has been shut down.³⁵ Among those refusing to work are some iron-workers who had been performing sheet metal work for Du Pont.³⁶ At other Du Pont operations, there have also been some refusals to cross the picket lines.

On May 10, Du Pont filed a charge with the NLRB alleging that the aforesaid conduct of Local 59 was in violation of § 8(b) (4) (i) and (ii) (D). On May 22, the Regional Director filed the petition presently before the Court.

There is no evidence in the record upon which this Court can base a finding that Du Pont's motivation for not assigning the sheet metal work to Local 59 was other than economic. All parties are in agreement that no other labor organization, trade, craft, or class of employees has made a claim for this work or has threatened to take retaliatory action against Du Pont should all or some of the sheet metal work at Seaford be subcontracted to a contractor in signed relations with Local 59. Indeed, it appears from the record that at least some of those presently doing this work have cooperated with respondent against Du Pont by refusing to cross Local 59's picket line.³⁷This is not a dispute between rival groups of employees but solely a dispute between Du Pont and respondent. The sole question before the Court is whether, on these facts, there is reasonable cause to believe the union's peaceful picketing in furtherance of its demands is prohibited by § 8(b) (4) (i) and (ii) (D) (hereinafter § 8(b) (4) (D)).

That section reads as follows:

"§ 8(b) It shall be an unfair labor practice for a labor organization or its agents —

* * * * * *

"(4) (i) to engage in, or to induce or encourage any individual employed by any person * * * to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person * * *, where in either case an object thereof is —

* * * * * *

"(D) forcing or requiring any employer to assign particular work to employees in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work."

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