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Schauffler v. United Association of Journeymen and Apprentices of Plumbing and Pipe Fitting Industry of United States and Canada

January 10, 1955

BENNET F. SCHAUFFLER, REGIONAL DIRECTOR OF THE FOURTH REGION OF THE NATIONAL LABOR RELATIONS BOARD, FOR AND ON BEHALF OF THE NATIONAL LABOR RELATIONS BOARD, APPELLEE,
v.
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL 420, AFL, APPELLANT.



Author: Biggs

Before BIGGS, Chief Judge, MARIS and KALODNER, Circuit Judges.

BIGGS, Ch. J.: This is an appeal from an injunction issued by the court below under Section 10(1) of the National Labor Relations Act, 29 USCA § 160(1) (Supp. 1953), on a petition filed by the Regional Director of the National Labor Relations Board against United Association of Journeymen & Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 420 AFL (Pipefitters). This appeal involves only one incident in a long series arising from a jurisdictional dispute between Pipefitters and the Riggers & Machinery Movers Local Union 161 (Riggers) affiliated with the International Association of Bridge, Structural & Ornamental Iron Workers, AFL. The dispute itself concerns whether Pipefitters or Riggers are to "tie-on" to and "tie-off" from derricks building materials to be installed by Pipefitters after hoisting.

As a result of disputes of this nature arising many times in the Philadelphia area, Riggers on February 26, 1953 filed with the NLRB charges of unfair labor practices against Pipefitters. Riggers charged violations of Section 8(b)(4)(D) of the National Labor Relations Act, 29 USCA § 158(b)(4)(D) (Supp. 1953). Section 8(b)(4)(D) prohibits "forcing or requiring any employer to assign particular work to employees in a particular labor organization ... rather than to employees in another labor organization...." Section 10(k) of the Act, 29 USCA § 160(k) (Supp. 1953), requires the Board in respect to charges based on 8(b)(4)(D) "to hear and determine the dispute out of which such unfair labor practice shall have arisen." Accordingly, the Board heard the case and on April 9, 1954 determined that Pipefitters "are not and have not been lawfully entitled to force or require any employer in the Philadelphia area to assign the rigging work on any equipment to members of Locals 428 and 420 rather than to members of Riggers. ..."

On March 29, 1954, shortly before this determination was made by the Board, the unfair labor practice charge of violation of 8(b)(4)(D) involved in the instant case was filed. In the charge Hake, a subcontractor engaged in hoisting operations and employing Riggers, asserted that Pipefitters

"engaged in, induced, and encouraged employees of Day & Zimmerman, Inc. [a general contractor for the installation of air conditioning], and William H. Walters & Sons, Inc. [a subcontractor installing the air conditioning piping and employing Pipefitters], to engage in strikes, picketing, and concerted refusals in the course of their employment to transport or otherwise handle or work on any materials or to perform any services; the object thereof being to force and require Day & Zimmerman, Inc. and/or William H. Walters & Sons, Inc., and/or Frank W. Hake to assign particular work to employees in ... [Pipefitters] rather than to employees in another labor organization, International Association of Bridge, Structural & Ornamental Iron Workers, Local 161, AFL, at the Fidelity-Philadelphia Building, Broad & Walnut Sts., Philadelphia, Pa."

On this charge (in respect to which no determination was made until August 20, 1954) but moved also by instances of other alleged unfair labor practices by Pipefitters in the Philadelphia area preceding the labor practice complained of as to the Fidelity-Philadelphia job, the Regional Director on April 21, 1954 petitioned the court below for an injunction under Section 10(1) of the Act, 29 USCA § 160(1) (Supp. 1953).

Section 10(1) provides that if, after investigating 8(b)(4)(A), (B) or (C) charges,

"the officer or regional attorney to whom the matter may be referred has reasonable cause to believe such charge is true and that a complaint should issue, he shall, on behalf of the Board, petition ... [a United States] district court ... for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter. Upon the filing of any such petition the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper, notwithstanding any other provision of law. ... In situations where such relief is appropriate the procedure specified herein shall apply to charges with respect to Section 8(b)(4)(D)."

The court below, acting pursuant to this section of the Act, determined that there was "reasonable cause" to believe the charge true and enjoined Pipefitters from

"inducing or encouraging the employees of ... Walters, ... Hake, or of any other employer, to engage in, a strke or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials or commodities or to perform any services, where an object thereof is to force or require Frank W. Hake, Day & Zimmerman, Inc., or any other employer or association of employers in the Philadelphia area, to assign the rigging work on any equipment, pipe, or material to employees who are members of respondent rather than to employees who are members of or represented by Riggers & Machinery Movers Local Union 161, ..."

pending the final adjudication by the Board of the matters involved.

Pipefitters have appealed from the order last quoted. They argue, among other things, that the order is too broad in that it enjoins Pipefitters' activity on jobs other than the Fidelity-Philadelphia Trust Building, their activities in regard to this project constituting the sole basis for the unfair labor practice alleged in the charge of March 29, 1954. Pipefitters assert that since the charge of March 29, 1954, was so limited the temporary injunction issued by the Board is too broad and must be narrowed to pertain only to the Fidelity-Philadelphia job. It follows, say Pipefitters, that this Court must require the court below to vacate its temporary injunction as moot since the Fidelity-Philadelphia job was completed by Day & Zimmerman some months ago albeit after the date on which the injunction appealed from issued.*fn1 But, as we have already shown, the Regional Director did not base his petition to the court below solely on Pipefitters' actions on the Fidelity-Philadelphia job. He alleged other similar instances of unfair labor practices in the Philadelphia area by Pipefitters during "the past several years" in respect to the "tie-on" - "tie-off" jurisdictional dispute as shown by the determination of the Board of April 9, 1954, declaring Pipefitters' actions in respect to five other jobs to have constituted unfair labor practices. In determining the existence of "reasonable cause" the Regional Director or Regional Attorney is entitled to take into consideration as a basis for his finding of reasonable cause the course of conduct of a union over a period of time.

But can the court to which the petition is filed go further than the specific unfair labor practice revealed by the charge and enjoin temporarily, pending a final adjudication by the Board, not only the future conduct of the union, Pipefitters, in respect to a particular job, here Fidelity-Philadelphia, but also enjoin the union's conduct in respect to other employers and other jobs in the Philadelphia area as the court did here?

The statute has several relevant subsections which must of course be considered. When an 8(b)(4)(D) charge is filed, the Board is required by Section 10(k) of the Act "to hear and determine the dispute out of which such unfair labor practice shall have arisen." However, no power to enforce such a broad determination is conferred by the statute.*fn2 Consequently, it is argued that the Board on a particular unfair practice charge cannot by the means of Section 10(1) obtain a preliminary injunction which coincides precisely with a previous Section 10(k) determination ...


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