Valley Beer Distributors Association,' as well as other wording (N.T. 195-8, 200, 214). Before making this call, the steward said to Mr. Sizer, 'Unless you have a contract, you don't get no beer.' However, Mr. Sizer did get his beer on this occasion before the steward started to picket (N.T. 196, 199-201).
Mr. Sizer had such difficulty getting beer from his regular sources between March 10 and April 7 that he had to get up at 3 a.m. and travel 180 miles to secure beer to supply to his customers (N.T. 211).
Mr. Stukes (a domestic distributor) was unable to get beer at Origlio's on the afternoon of April 3 as a result of respondent's influence on the employees (N.T. 221-4, 226, 234-6).
The employees of the domestic distributors spent far more time at their employers' places of business than at the places of business of any one brewery or importing distributor. The most feasible place to reach the employees of the domestic distributors through picketing was at the places of business of such distributors.
The intent and purpose of the picketing on March 18, March 26, and April 7 was to influence and persuade the platform employees (as opposed to the employees of the domestic distributors) not to load the trucks of the domestic distributors mentioned above.
The terms under which a proceeding such as this is before this court are stated in Schauffler v. Highway Truck Drivers & Helpers, 3 Cir., 1956, 230 F.2d 7, 9. See, also, Douds v. Wood, Wire & Metal Lathers Intern. Ass'n, 3 Cir., 1957, 245 F.2d 223.
1. Interstate Commerce (Jurisdiction)
The activities complained of must affect interstate commerce in order to bring them within the jurisdiction of the Board.
In this case, the Regional Director concluded that there is reasonable cause to believe that the unfair labor practices charged affect commerce by interrupting and tending to impede and disrupt the business of a number of concerns engaging in the brewing and distribution of beer. There is nothing in the record to show that the Director's finding of reasonable cause was unwarranted. Each of four breweries involved during the past year sold and shipped beer and related products valued at more than $ 50,000 from its plant to places outside of Pennsylvania. One of the importing distributors purchased and caused to be shipped beer valued at in excess of $ 500,000 to its establishment in Philadelphia, Pa., from points and places outside that Commonwealth.
Congress gave the Board authority to prevent practices tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce and, therefore, left it to the Board to ascertain whether prescribed practices would, in particular situations, adversely affect commerce when judged by the full reach of the constitutional power of Congress.
The minimum jurisdiction standards of the Board are set forth in Jonesboro Grain Drying Cooperative, 110 N.L.R.B. 481 (1954). If the business of the secondary employer is to be considered on its entirety, the four breweries named in the petition meet the jurisdictional requirements under the Direct Outflow Standard
and one of the importing distributors, Scott & Grauer, meets the Direct Inflow Standard.
In secondary boycott cases, the Board has said, in the McAllister Case, 110 N.L.R.B. 1769, 1772 (1954): 'It is not the particular business between the primary employer and the secondary employer at the location affected, but rather the entire business of the secondary employer at that location that governs in applying the Board's jurisdictional standards.' Clearly, then, the four named breweries and Scott & Grauer (an importing distributor) come within the jurisdiction of the NLRB. The activities at Origlio's and Smiler Beverage Co. also are protected by the NLRA under the decision in the case of Teamsters and Euclid Foods, Inc., 118 N.L.R.B. No. 17 (1957),
since there is reasonable cause to believe that all the secondary employers were victims of a pattern of unfair labor practices.
The hearing judge has concluded that the application of these Board decisions is required on this record in the light of appellate federal court decisions such as N.L.R.B. v. Jones & Laughlin Steel Corp., 1936, 301 U.S. 1, 41-42, 57 S. Ct. 615, 81 L. Ed. 893; Shore v. Building & Construction Trades Council, 3 Cir., 1949, 173 F.2d 678, 680, 8 A.L.R.2d 731; cf. N.L.R.B. v. Denver Bldg. Council, 1951, 341 U.S. 675, 683-685, 71 S. Ct. 943, 95 L. Ed. 1284; Local 74, United Brotherhood of Carpenters Union v. N.L.R.B., 1951, 341 U.S. 707, 712, 71 S. Ct. 966, 95 L. Ed. 1309.
2. Alleged Unclean Hands
The respondent has argued that the preliminary injunction should not issue because the equitable maxim that he who comes into equity must come in with clean hands in order to obtain relief is applicable in this proceeding. The respondent union has accused some of the charging parties of inequitable behavior during the hearing in this matter and has also filed unfair labor charges against them with the National Labor Relations Board.
Injunctive relief is traditionally equitable in nature. If the proceedings at issue were governed only by common law equitable rules and the defense of unclean hands were raised, the court would take into account that the defense is only applicable where there is unconscionable conduct and an adequate showing of corrupt intent,
that the maxim is not applicable where an inequitable result would be reached by following it,
and that one who comes into a court of equity is not required to come in with spotless hands.
Under these principles, and the rule that it is not incumbent upon the plaintiff, as part of his case, to prove that he has not failed to do equity,
it is not clear that those members of Delaware Valley, who have no contract with respondent, would not be entitled to relief if they were the plaintiffs
In any event, this case involves more than a request for an injunction under common law. It is brought under statutory law and the grant of the injunction depends upon the standards set forth in the statute.
The Court of Appeals of this Circuit has expressly disclosed that the clean hands doctrine is not applicable in a proceeding where a government agency is seeking to enforce its order in the public interest.
Since the fact finder in these cases is the Board, it is held that if the court finds reasonable cause to uphold the Board's charges, the injunction shall issue.
The fact that the Regional Director of the Board, and not Delaware Valley, is the party of record supports the application of the Eichleay doctrine. Also, it should be noted that some of the members of Delaware Valley signed neither the January agreement nor the final 1957 contract and, hence, the doctrine of unclean hands could in no event apply to them.
Under the facts of this record, it is 'just and proper' to issue the injunction. The breadth of the words 'induce and encourage,' as used in Section 8(b)(4) (29 U.S.C.A. 158(b)(4)), has been emphasized by the United States Supreme Court in International Brotherhood of Electrical Workers v. N.L.R.B., 1951, 341 U.S. 694, 702-703, 71 S. Ct. 954, 95 L. Ed. 1299
3. Hot Cargo Clause
Some labor-management contracts contain 'Hot Cargo' clauses, which are agreements in advance that secondary boycotts will be acceptable under certain circumstances. The legality of such clauses, in view of the terms of the Taft-Hartley Act, is in doubt. There are several cases now before the Supreme Court of the United States concerning the validity of such clauses.
The Board's rule concerning such clauses is found in Local 1976, Brotherhood of Carpenters, and Sand Door & Plywood Co., 113 N.L.R.B. 1210 (1955). This rule has been approved by two Courts of Appeals and several District Courts. See N.L.R.B. v. Local 1976, etc., 9 Cir., 1957, 241 F.2d 147, 155; N.L.R.B. v. Local 11, Brotherhood of Carpenters, 6 Cir., 1957, 242 F.2d 932, 936; Roumell v. United Association of Journeymen and Apprentices, etc., D.C.E.D.Mich.1957, 151 F.Supp. 706; Alpert v. Brotherhood of Carpenters, D.C.Mass.1956, 143 F.Supp. 371.
The fact that two appellate courts hold that a hot cargo clause is no defense to conduct prescribed by Section 8(b)(4)(A) constitutes adequate basis for injunctive relief in this matter, especially when the reasoning of these courts appears convincing on the facts of this case.
In addition, even assuming so-called 'Hot Cargo' clauses valid, the clauses relied upon by the respondent are not applicable to the present situation. The union has cited Article IV of its agreement with the breweries, which applies to the latters' drivers, helpers and warehousemen,
and Article XIX of the contract between the union and the distributors.
Substantially, both contracts only provide that the refusal of an employee to load or unload a truck operated by one who is not a member in good standing of a union shall not be a violation of the contract or a cause for discharge. Since the uncontradicted record shows that all trucks owned by members of Delaware Valley were operated by persons who were members of Local 830, the clauses do not justify the respondent's appealing to persons employed by a secondary employer. In the case of the breweries, there is the added fact that persons not members of Local 830 were induced to boycott members of Delaware Valley.
The hot cargo clause does not confer upon respondent the right to appeal to employees not covered by the clause to refuse to perform services in violation of Section 8(b)(4)(A). Cf. General Drivers, etc. Local 886, v. N.L.R.B., 1957, 101 U.S.App.D.C. 80, 247 F.2d 71, 75
4. Picketing at Situs of Secondary Employer
The respondent here contends that the actions of the union are not violative of the National Labor Relations Act, as amended, relying on the Moore Drydock case, 92 N.L.R.B. 547 (1950), as authority. In that case, the working conditions aboard a vessel were the source of the complaint and the owner of the vessel had no dock of its own in any part of the United States. Picketing was done while the ship was being readied for its voyage at a port belonging to another person. The Board stated that picketing of the secondary employer would be considered primary if the following conditions were met:
'(a) The picketing is strictly limited to times when the situs of dispute is located on the secondary employer's premises; (b) at the time of the picketing the primary employer is engaged in its normal business at the situs; (c) the picketing is limited to places reasonably close to the location of the situs; and (d) the picketing discloses clearly that the dispute is with the primary employer.'
It is declared that the conditions were all met and that the picketing was permissible.
The criteria set forth in this case have been accepted by various Circuit Courts (and followed by later Board decisions)
In the Washington Coca Cola case, 107 N.L.R.B. 299 (1953),
the Board stated at page 302:
'After six years of Board and Court construction of Section 8(b)(4)(a) of the Act, the fundamental principle has been established that this section proscribes picketing at the separate premises of employers who are not a party to the picketing union's primary labor dispute.'
The case stated that the Moore Drydock principles did not have to be rejected or affirmed, since the case involved a primary employer who had a plant where the drivers entered and left at least four times a day and which had been picketed by the union from the beginning of the strike.
Since the Washington Coca Cola decision, the Board has followed that rule and, in all instances except one,
the courts before which the question has arisen have enforced orders of the Board based on that rule. Diaz Drayage Co., 117 N.L.R.B. 885, enf'd. General Truck Drivers, etc. v. N.L.R.B., D.C.Cir.1958, 252 F.2d 619; Caradine Co., 116 N.L.R.B. 1559, enf'd. N.L.R.B. v. General Drivers, etc., 6 Cir., 1958, 251 F.2d 494; Barry Controls, Inc., 116 N.L.R.B. 1470, enf'd. N.L.R.B. v. United Steelworkers, 1 Cir., 1957, 250 F.2d 184; National Trucking Co., 111 N.L.R.B. 483, enf'd. N.L.R.B. v. Truck Drivers & Helpers, etc., 5 Cir., 1956, 228 F.2d 791; Gotham Broadcasting Corp., 110 N.L.R.B. 2166, enf'd. N.L.R.B. v. Associated Musicians, 2 Cir., 1955, 226 F.2d 900, certiorari denied 1956, 351 U.S. 962, 76 S. Ct. 1025, 100 L. Ed. 1483; Cache Valley Dairy Association, 116 N.L.R.B. 220, injunction granted, Douds v. Teamster Local 976, D.C.S.D.N.Y.1956, 139 F.Supp. 702. See, also, Retail Fruit & Veg. Clerks Union v. N.L.R.B., 9 Cir., 1957, 249 F.2d 591; Piezonki v. N.L.R.B., 4 Cir., 1955, 219 F.2d 879; N.L.R.B. v. Denver Bldg. & Const. T. Coun., 10 Cir., 1955, 219 F.2d 870; N.L.R.B. v. Chauffeurs, Teamsters, etc., 7 Cir., 1954, 212 F.2d 216, 219.
Although there is doubt as to whether or not the above-quoted Moore Drydock language is still the rule of the N.L.R.B. in view of the later decision in the Washington Coca Cola case, supra, even if the Moore Drydock decision in still operative, the facts in this case do not bring the union's activities within its holding.
In N.L.R.B. v. United Steelworkers, 1 Cir., 1958, 250 F.2d 184, at page 187, the court stated:
'We may concede that the Moore Drydock doctrine would have application when the primary employer has a fixed and permanent place of business, but picketing his premises by striking employees would not in any real sense adequately publicize the labor dispute.'
In this case, as in N.L.R.B. v. United Steelworkers, supra, the record discloses adequate opportunity to reach the members of the association and their employees elsewhere than at the places picketed.
All of the domestic beer distributors involved in this action had a place of business in Philadelphia. The court has reasonable cause to believe that the employees of the domestic distributors spent more time at their employer's situs than they did at any of the breweries or importing distributors. Therefore, there was a situs at the employers' places of business where the picketing could have taken place, and this was the most feasible place to reach the employees by picketing. The fact that there was such a situs takes the case out of the Moore Drydock case, supra, where the issue was stated at page 549:
'Does the right to picket follow the situs while it is stationed at the premises of a secondary employer when the only way to picket the situs is in front of the secondary employer's premises?'
The fact that each of the primary employers had a local place of business which was not picketed by the respondent is noted and shows that the purpose of the picketing was to reach secondary employers. In Sales Drivers, etc. v. N.L.R.B., 1956, 97 U.S.App.D.C. 173, 229 F.2d 514 and N.L.R.B. v. General Drivers, etc., 5 Cir., 1955, 225 F.2d 205, both of which are relied upon by the respondent, the business establishment of the primary employer was picketed at the same time that picketing was done elsewhere. This record indicates that the primary purpose of the picketing, which was only done at the secondary employers' places of business, was to affect the secondary employers' business.
Rulings on Evidence.
N.T.57 Motion Denied.
N.T.79 Motion Denied.
N.T.87 Motion Denied.
N.T.224 Motion Denied.
N.T.322 Objection Overruled.
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