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PENELLO v. IBEW

October 28, 1963

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



The opinion of the court was delivered by: HOLTZOFF

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 stood 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.

 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 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 or not the Act has been violated as charged since any determination on the merits must be made by the Board. The sole duty of the Court is to ascertain whether the Regional Director had a reasonable cause to believe that the Act has been violated.'

 Numerous other cases held to the same effect. Graham for and on Behalf of N.L.R.B. v. Retail Clerks International Association, Local No. 57, D.C., 188 F.Supp. 847, 852; Penello for and on Behalf of N.L.R.B. v. Local Union No. 59, Sheet Metal Workers International Association, D.C., 195 F.Supp. 458, 471; Kennedy for and on Behalf of N.L.R.B. v. Construction, Production and Maintenance Laborers' Union, Local 383, D.C., 199 F.Supp. 775, 777.

 The basic facts out of which this case arises, as they have been summarized, are not in dispute. What is in dispute is the vital charge that a strike of electricians has been threatened by the respondent union, Local 26, against the prime contractor. The prime contractor alleges that it has been, while the respondent denies the making of the threat. Both sides have submitted detailed affidavits in support of their factual contentions.

 While the charge advanced by the Board is that such a threat has been made by the respondent both against McCloskey, the prime contractor, and Foley-Ernst, the sub-contractor, there is not sufficient proof of any threat directed against the sub-contractor. Both the representative of the union and the sub-contractor expressly deny any such threat. None appears to have been necessary because Foley-Ernst, the sub-contractor, has indicated not only a desire but an intention to disregard the decision of the National Joint Board and to continue employing electricians for this particular task.

 It is otherwise, however, as to the threat to call an electricians' strike charged to have been directed to McCloskey, the prime contractor. Affidavits submitted in behalf of the Board indicate that a conference took place between representatives of the two unions, a representative of the prime contractor and a representative of the sub-contractor. It further appears that during this meeting a telephone conversation took place with J. C. McCloskey at his office in Philadelphia. He was a Vice-President of McCloskey & Company. Affidavits submitted in behalf of the Board indicate that at that conference Mr. McAlwee, the ...


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