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 representative of Local 26, stated that if the work assignment was charged from the electricians to the sheet metal workers there would be no electricians on the job.
In a sense this statement is ambiguous. It might be just a prophesy. On the other hand, the persons participating in the conference were realists and they construed this statement as an intimation that a jurisdictional strike would be called if the work assignment was changed from the electricians to the sheet metal workers. An affidavit was submitted by Mr. McAlwee denying that he ever made any threat and likewise a representative of the sub-contractor denied that any threat was made.
What constitutes a threat, of course, is often a matter of inference or interpretation. At best, there is a conflict. The fact of the conversation is not denied by McAlwee. He merely denies that he ever made a threat. As indicated before, it is not for the Court to resolve the conflict.
The Court finds that the Regional Director had reasonable ground to believe that the charge just referred to was true.
Counsel for the respondent union also raises a question of law as to whether a proceeding such as has been instituted by the Board may be properly maintained or whether the proper course for the Board to pursue is to conduct a so-called 10(k) proceeding, that is, a proceeding under 29 U.S.C. § 160(k), which relates to the resolution of jurisdictional disputes. This doubtful question of law likewise must be determined, in the first instance, by the Board. Whether there is an eventual judicial review of any determination that the Board might make is something that should not be decided at this juncture.
Consequently, the Court concludes as a matter of law that the injunction prayed for should be issued.
There are a couple of other matters to which the Court desires to advert at this point. At one time in the course of the argument the respondents' counsel asked leave to supplement his affidavits by oral testimony, which the Court deemed unnecessary. Rule 43(e) of the Federal Rules of Civil Procedure provides that:
'When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.'
In other words, the more usual practice is to hear motions on affidavits, although the Court in its discretion may take oral testimony. Ordinarily in this Court the practice is to hear motions on affidavits and it is the exception to take oral testimony. It would be very burdensome indeed if oral testimony was heard on a great many motions because this Court is so busy that it frequently has to hear and determine 10 to 15 motions a day.
If it was the function of the Court, however, to resolve the questions of fact and to determine a question of veracity, the Court would have been inclined to hear oral testimony, even of its own motion, because matters of credibility and veracity cannot be easily determined on affidavits. All that the Court must do here, however, and all that it is restricted to doing is to decide whether reasonable cause has been established, that is, reasonable and probable cause, and that can readily be done on the basis of affidavits. It is true that the statute under which this proceeding is brought authorizes parties to present any relevant testimony. Relevant testimony, however, may be presented by affidavit, by deposition, or by witnesses testifying orally. The statute does not profess to limit the discretion of the Court in that respect.
In determining whether to grant the injunction the Court must be guided by general equitable principles. The balance of convenience clearly predominates in favor of the petitioner. If as it is claimed there has been no threat and there is no intention to engage in a jurisdictional strike, the respondent would not be unduly burdened by the injunction. On the other hand, to deny the injunction, if it should turn out that a threat actually was made and there is an intention to put it into effect, the result might be adverse to the best interests of the public as well as the contractor and the employees themselves.
This dispute is in an incipient stage because the Court in informed that no one has lost his job as yet since there is other sheet metal work and electrical work that is being pursued on this building. The dispute should be checked and resolved while it is still in an embryonic state. It is a well known fact that jurisdictional disputes among labor unions have sometimes expanded to a point at which they have become the bane of trade unionism and on occasion have worked havoc. They may lead to futility and frustration. A jurisdictional strike sometimes creates a situation where there is work to be done by one of two groups of laboring men and yet both are out of work and the families of all of them suffer financially. Unemployment insurance funds may be unfairly depleted and in extreme instances public relief rolls may become improperly burdened. The employer often, in the case of a jurisdictional strike, stands helpless and must cease business until the dispute is resolved. The public is always adversely affected, and in this instance where the project is the construction of a large and important Government building, the Government would be seriously prejudiced. I might say that when these jurisdictional strikes continue and become publicized, labor unions sustain a loss of public esteem, for the public is likely to become disgusted and look with disdain upon such proceedings.
A far reaching step has been taken by far-sighted labor leaders in establishing, with the cooperation of some of the employers, a National Joint Board to resolve jurisdictional disputes in the building industry, but unless the unions are willing to cooperate and abide by decisions of the Board the creation of such a Board will not effectuate its objective. Here we have a union that is recalcitrant and rebels against the decision of the Board and declines to abide by it. Such situations might well lead to an approach to anarchy and chaos in the labor field.
The Court of course assumes in granting a temporary injunction that the Board will expeditiously dispose of the proceeding before it. If it fails to proceed with reasonable dispatch the Court will entertain a motion to dissolve the injunction.
A transcript of this oral decision will constitute the findings of fact and conclusions of law. Counsel will submit an appropriate order in accordance with this ruling.
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