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
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.
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 and an employee of Selby, told Nichols' linemen,
"You don't dig those holes with that machine. That is the Operating Engineers' work."
Nichols' supervisor, O'Brien, then spoke to Yanuzzi, Selby's lead mechanic in charge of Selby's operating engineers, and was told by him that Nichols would have to hire members of Engineers to operate the auger and boom. After consulting with Shaffer, Electricians' business agent, who claimed that operation of the equipment was Electricians' work, O'Brien decided not to hire Engineers' members, and the next day Nichols' employees dug three holes manually.*fn5 On May 9th, Nichols again brought its power equipment to the job site, and its employees started digging holes with the power-driven auger.Gatti immediately summoned fifteen to twenty members of Engineers employed on the job by Selby and Elmhurst and said to them,
"See what they are doing? They are taking your work away from you."
At Gatti's direction some of the engineers stood in front of the truck so that it could not be moved; the remainder sat on the power line poles which were lying alongside the truck. Yanuzzi advised the members of Engineers to return to work but they refused. When O'Brien sought assistance from a State Trooper, Gatti said that the auger was the type of equipment used by engineers and that Nichols' linemen "were not going to use it." Finally, at 3:30 in the afternoon, after the work stoppage had been in progress for three or four hours, Nichols removed the equipment, and the engineers immediately returned to work. Thereafter Nichols' employees dug the holes manually without interference from Engineers. On May 17, 1961 at a meeting held in Newark at the request of a representative of the State of New Jersey, Engineers' business agent claimed that the operation of this type of equipment belonged to his members; Electricans' business agent, on the other hand, claimed that the operation of this equipment on power line construction was Electricians' work that had been performed by members of his local for at least thirty years.
By the time of the hearing in the court below on June 14, 1961, Nichols had almost completed the work on its subcontract with Selby.*fn6 However, the dispute between Electricians and Engineers as to whose members should operate the power equipment had not been settled; and Elmhurst's project manager, while admitting that there was very little, and possibly not any, electrical work to be done on the project, nevertheless testified that Nichols was one of several companies which at Elmhurst's request had submitted estimates on further electrical work to be performed at the Spruce Run Reservoir. Nichols' headquarters were in New Jersey and Nichols had engaged in power line construction in that State on a number of occasions during the preceding several years.
The District Court, in its oral opinion, expressed agreement with the version of the events as described in the evidence above summarized.
In its "Order Granting Temporary Injunction" the District Court enjoined Engineers from engaging in specified conduct designed (1) "to force or require" Selby, Elmhurst or others "to cease doing business with" Nichols, and (2) to compel Nichols to assign the operation of its power equipment to Engineers.
On this appeal Engineers urges (1) there did not exist a "jurisdictional dispute" between it and Electricians and that the sole dispute was between it and Nichols, and accordingly there was no basis for the application of Section 8(b)(4)(D); and (2) the issuance of the temporary injunction was in error since "the facts of the present case do not support" its issuance.
On review of the record we cannot say that the District Court was "clearly erroneous" in its fact-finding "that 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) . . . and that such acts and conduct will likely be repeated or continued unless enjoined."*fn7 Nor can we say that the District Court abused its discretion in issuing the temporary injunction under the evidence earlier recited.*fn8 Since the scope of our review "is limited to a determination whether the District Court's finding that there is reasonable cause to believe that a violation of the Act as charged has been committed is clearly erroneous" and whether the District Court abused its discretion in granting injunctive relief,*fn9 further consideration becomes unnecessary. Penello v. Local No. 59 Sheet Metal Workers, 195 F. Supp. 458 (D. Del. 1961) cited by Engineers is inapposite on its facts.
For the reasons stated the Order Granting Temporary Injunction will be affirmed.