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Cuneo v. Local 825

March 20, 1962

JOHN J. CUNEO, REGIONAL DIRECTOR, TWENTY-SECOND REGION, NATIONAL LABOR RELATIONS BOARD, FOR AND ON BEHALF OF NATIONAL LABOR RELATIONS BOARD, APPELLEE
v.
LOCAL 825, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, ET AL.,* APPELLANTS. A1 PROCEEDINGS AGAINST LOCAL NO. 472, INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS UNION, AFL-CIO WERE DISCONTINUED BELOW.



Author: Kalodner

Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.

KALODNER, C.J.: Appellant Engineers Union ("Engineers") appeals from a temporary injunction issued by the District Court in proceedings instituted by the Regional Director of the National Labor Relations Board ("Board") pursuant to Section 10(l ) of the National Labor Relations Act, as amended.*fn1 The temporary injunction restrained Engineers from engaging in unfair labor practices in violation of Sections 8(b)(4)(B) and (D) of the Act*fn2 which prohibit so-called secondary boycotts and certain conduct in furtherance of jurisdictional disputes, until final adjudication by the Board of pending charges relating to such practices.

The District Court, in an oral opinion,*fn3 found that "obviously there is or was a jurisdictional dispute" and that Engineers "indicate no lack of intention to do the same thing again in the future." In its "Order Granting Temporary Injunction" the District Court stated it had found "there is reasonable cause to believe that respondent has engaged in, and is engaging in, acts and conduct in violation of Section 8(b)(4)(i)(ii) subparagraphs (B) and (D) of said Act. . . and that such acts and conduct will likely be repeated or continued unless enjoined."

The scope of our review on this appeal is limited to two considerations:*fn4

(1) Was the District Court clearly erroneous under Rule 52(a), Fed. Rules Civ. Proc. 28 U.S.C.A., in its finding that Board had reasonable cause to believe that Engineers had engaged in an unfair labor practice or practices?; and

(2) Did the District Court abuse its judicial discretion in issuing the temporary injunction?

The facts as adduced by the testimony below and evidenced by the record may be summarized as follows:

On May 11 and 15, 1961, Nichols Electric Company ("Nichols") filed charges with John J. Cuneo, Regional Director of the Twenty-second Region of the National Labor Relations Board, aleging that Local No. 825, International Union of Operating Engineers, AFL-CIO ("Engineers") had engaged and was engaging in unfair labor practices proscribed by Sections 8(b)(4)(B) and (D) of the National Labor Relations Act ("Act").

After investigation, the Regional Director concluded the charges had merit and warranted proceedings before the National Labor Relations Board and petitioned the District Court for the injunction now under review.

The hearing before the District Court developed this situation:

Elmhurst Contracting Company ("Elmhurst") was awarded a contract by the State of New Jersey to construct the Spruce Run Reservoir near Clinton, New Jersey. Elmhurst sublet a $2,600,000 subcontract to Selby Drilling Corporation ("Selby") which in turn subcontracted to Nichols, an electrical contractor, the erection of an electric power line. The latter work necessitated the erection of poles from which the power line was to be strung. For the past ten or twelve years Nichols used an auger drill mounted on and powered by a truck to dig the holes for the poles and a boom attached to the truck to lift the poles into place. Nichols always assigned the operation of the auger and boom to its linemen, who are members of International Brotherhood of Electrical Workers, AFL-CIO ("Electricians"). Nichols had no contract with Engineers for the operation of this equipment; Engineers were never certified by the Board as the collective bargaining representative of any of Nichols' employees; and Nichols had not been ordered by the Board to bargain with Engineers. The latter, however, had contracts with Elmhurst and Selby recognizing it as the bargaining representative for all employees operating power equipment of the kind here involved. These contracts contain the following clause:

"This Agreement shall bind all subcontractors while working for an Employer who is a party to this Agreement. Any Employer who sublets any of his work must sublet the same subject to all the terms and conditions of this Agreement."

On May 3, 1961, Nichols' men arrived at the reservoir site with the powered auger and boom to dig the holes and set the poles for the power line. One Gatti, who was Engineers' job steward ...


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