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SACHS v. PLUMBERS LOCAL UNION NO. 5

December 11, 1969

David C. SACHS et al., Petitioner,
v.
PLUMBERS LOCAL UNION NO. 5 et al., Respondent



The opinion of the court was delivered by: SIRICA

 SIRICA, District Judge,

 The Acting Regional Director of the Fifth Region of the National Labor Relations Board has brought this action for a temporary injunction pursuant to Section 10(l) of the National Labor Relations Act. *fn1" The petitioner seeks to enjoin the respondent, Plumbers Local Union No. 5 (hereinafter referred to as the union), from picketing at jobsites of the A. S. Johnson Company (hereinafter referred to as Johnson), until the disposition by the Board of a complaint charging the union with violations of Section 8(b)(7)(C) of the Act. This section prohibits so-called recognitional or organizational picketing by an uncertified union for a period in excess of thirty days without filing a petition for a representation election.

 The facts giving rise to this action are not in dispute. Johnson, a Delaware corporation, maintains its principal place of business in the District of Columbia, and is engaged in the building and construction industry in the metropolitan Washington area as a mechanical contractor. The respondent union is affiliated with the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO. It represents union plumbers in Washington and neighboring Maryland and Virginia. The plumbers employed by Johnson are not represented by any union.

 During the period involved here seven construction projects on which Johnson was a subcontractor were picketed by the union. *fn2" The pickets carried signs which stated:

 
Plumbers on Strike against A. S. Johnson and Jayco Inc. Substandard employment conditions on this job
 
The union does not intend by this picket to induce or encourage the employees of any other employer to engage in a strike or concerted refusal to work.

 Other signs read:

 
A. S. Johnson Co., Inc. Unfair to Plumbers Local 5

 The latter sign also included the substandard language as stated above. This picketing had continued for more than thirty days at the time the NLRB complaint was filed. The picketing resulted in work stoppages and refusals to make deliveries at the jobsites involved.

 On September 3, 1969, after picketing had been going on for over a month at several of the jobsites, the union sent Johnson a telegram suggesting "* * * a meeting to discuss mutual problems." Johnson replied by certified mail, dated September 5, "* * * you will have to be more explicit as to our mutual problems before we are interested in scheduling a meeting." The union responded by telegram that its request "* * * is and remains solely for the purpose of informing you in person that immediately upon your informing us that you have established for your plumber employees the wages, hours and working conditions now enjoyed by members of Local 5, whom we represent, we will immediately cease all our informational picketing. We firmly disclaim now or at any time any organizational or recognitional purpose."

 At a court hearing held on the Regional Director's petition for an injunction, Mr. Samuel Armstrong, the business manager of the respondent union, testified that the union did not have any intent to organize Johnson's employees or to force recognition of it by Johnson as the bargaining agent for its employees. Mr. Armstrong stated that the union and its unionized plumbing contractors were being hurt competitively by the non-union contractors who were paying their plumbers less than the union wage rate. This lower cost factor was enabling the non-union contractors to successfully underbid the union contractors for the majority of the jobs in the area. Therefore, Mr. Armstrong testified, it was the intention of the union in picketing Johnson to require Johnson and all of the contractors in the area to pay the union rate as a protective measure in order to enable the unionized contractors to compete with the non-union contractors. He also stated that the union at no time approached Johnson with the intent of establishing a contractual relationship or even of opening negotiations. Mr. Armstrong testified that the union did not seek to have Johnson adopt the union contract provisions for its plumber employees. He stated that the union merely sought to have Johnson pay its plumbers an amount equal in cost to the wages and fringe benefits paid by union contractors. He denied any attempt to force Johnson to pay the same wages and/or fringes as called for in the union contract. On the question of organizational intent, Mr. Armstrong did state on cross examination that one employee of Johnson had become a member of the union and that seven or eight others had applied for membership. He stated that the union was open for membership and that this was well known by plumbers in the area, and that the union and its sister local of the steamfitters engaged in recruiting efforts throughout the area. Although he was not certain, he could not deny that a steamfitter organizer had been active among the Johnson employees.

  At the outset the Court would like to emphasize that it is fully aware of its duty in passing on a petition for injunctive relief under Section 10(l). The Court is not required to make a determination on the merits of this controversy, that is, as to whether the respondent union violated Section 8(b)(7)(C) of the Act. This is the function of the Board. In a 10(l) application the Court must examine the evidence presented to make a determination of whether there was reasonable cause to believe that the Act has been violated. *fn3" However, more than a mere assertion by the Regional Director that there is such reasonable cause is necessary to justify the granting of the injunction. Otherwise there would be no purpose in requiring resort to the court for the injunction. This principle was well stated by the court in Cuneo v. Local 472, International Hod Carriers Building & Common Laborers' Union, 175 F. Supp. 131, 139 (D.N.J.1959):

 
Granting that petitioner need only demonstrate reasonable grounds to believe his allegations to be true in order to obtain the relief he seeks, something beyond a bare assertion is ...

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