Vincent v. STEAMFITTERS LOCAL UNION 395, ETC.

• Decision Date: 21 March 1961
• Docket Number: Docket 26401.,No. 85,85
• Parties: Merle D. VINCENT, Jr., Regional Director of the Third Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee, v. STEAMFITTERS LOCAL UNION 395, UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES OF PLUMBING AND PIPEFITTING INDUSTRY OF UNITED STATES AND CANADA, AFL-CIO, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

288 F.2d 276 (1961)

Merle D. VINCENT, Jr., Regional Director of the Third Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee, v. STEAMFITTERS LOCAL UNION 395, UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES OF PLUMBING AND PIPEFITTING INDUSTRY OF UNITED STATES AND CANADA, AFL-CIO, Respondent-Appellant.

No. 85, Docket 26401.

United States Court of Appeals Second Circuit.

Argued November 15, 1960.

Decided March 21, 1961.

Stuart Rothman, General Counsel, Dominick L. Manoli, Associate General Counsel; Winthrop A. Johns, Asst. General Counsel, Marvin Roth, Attorney, National Labor Relations Board, Washington, D. C., for petitioner-appellee.

Lipsitz, Green, Fahringer & Fleming, Buffalo, N. Y., for respondent-appellant.

Before LUMBARD, Chief Judge, and WATERMAN and MOORE, Circuit Judges.

WATERMAN, Circuit Judge.

Klenz-Aid, a New York corporation, had contracted to install milk processing machinery in a new milk plant being constructed for the Buffalo Milk Producers Cooperative Association, Inc. (Buffalo) at Cheektowaga, New York. Klenz-Aid contracted with Marshall Maintenance (Marshall), a New Jersey corporation, for Marshall to do heliarc welding required to be performed on stainless steel piping installations. Marshall, employing two of its own non-union regular employees, commenced work on February 2, 1960. On February 5, 1960, Matthew Crawford, Business Agent of Steamfitters Local Union 395, AFL-CIO, (Union), approached Raymond Katzmar, one of the two Marshall employees and the one who had been acting as supervisor of the two-man job. Crawford discovered that the two employees were non-union and then declared that the milk plant job was "a union job" and the matter would have to be straightened out. Crawford, accompanied by Katzmar, telephoned Richard Marshall, president of Marshall, and insisted that the heliarc welding work be assigned to his union's members under threat of closing down the job if Marshall failed to do so. Later that day, Crawford, in a conversation with Lyman Baker, General Manager of Buffalo, reasserted that he would take action unless his demands were met.

On February 9, 1960, no change having been made in the work assignments, Union established picket lines at two of the entrances to the construction project. Banners were carried proclaiming that Marshall's employees were not members of Union. As a result of the picketing a general work stoppage at the entire project ensued.

On February 10, 1960 Marshall filed a complaint with the National Labor Relations Board, 3rd Region, charging that Union had committed an unfair labor practice by violating Section 8(b) (4) (D) of the National Labor Relations Act, 29 U.S.C.A. § 158(b) (4) (D). On February 16 Merle D. Vincent, Regional Director of the NLRB, petitioned the U. S. District Court for the Western District of New York for a temporary injunction pursuant to Section 10(l) of the NLRA, 29 U.S.C.A. § 160(l), ordering Union to cease and desist from its unfair labor practices until the NLRB had finally adjudicated the matter.

A show cause order requiring Union to show why the injunction should not issue was served on Union by personal delivery of the process to Crawford at 9:10 A. M. on February 18. The hearing was scheduled for February 24.

The picketing with banners was discontinued by Union on February 19 in favor of the dissemination of leaflets at the only entrance to the project not then snowbound. The leaflets stated that Marshall was a non-union employer and that Union was publicizing that fact. All the construction workers, except Marshall's employees, continued to remain away from the job and none returned until after the entry of the injunction order on March 4, 1960.

Union answered on February 22, the hearing was held on February 24, and on March 4 the district judge granted the Regional Director's petition. The court found that the Regional Director had reasonable cause to believe that the object of the picketing was to accomplish the reassignment by Marshall of work then assigned to Marshall's regularly employed non-union employees to members of Union. This was held to be a violation of Section 8(b) (4) (D). The Union disagrees with this interpretation of the statute and appeals from the grant of the injunction.

Appellant attacks both Judge Henderson's findings of fact and his conclusions of law. We hold that the judge did not err in either respect.

NLRA § 8(b) (4) (D) provides that it shall be an unfair labor practice for a labor organization or its agents to engage in, or to encourage other individuals to engage in, a strike or work stoppage the object of which is:

"(D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or 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." (Emphasis supplied.)

Appellant argues that this section makes...