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Cuneo v. Local 825

July 2, 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, APPELLANT.



Author: Kalodner

Before GOODRICH, MCLAUGHLIN and KALODNER, 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 Section 8(b)(4)(i)(ii)(D) of the Act*fn2 until final adjudication by the Board of pending charges relating to such practices.

The District Court, in an oral opinion,*fn3 found that there was reasonable cause to believe that Engineers had engaged in conduct "contrary to the provisions of Section 8(b)" and in its "Order Granting Temporary Injunction" restated that finding and made the further finding "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:

Schwerman Company of Pennsylvania ("Schwerman") on June 19, 1961 filed a charge with John J. Cuneo, Regional Director of the Twenty-second Region of the National Labor Relations Board, which it amended on June 29, 1961, alleging that Engineers had engaged and was engaging in unfair labor practices proscribed by Section 8(b)(4)(i)(ii)(D) of the National Labor Relations Act ("Act"). Section 8 prohibits certain conduct in furtherance of jurisdictional disputes.

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

The hearing before the District Court developed this situation:

Selby Drilling Corporation ("Selby") had a subcontract for certain work on the Spruce Run Reservoir being constructed near Clinton, New Jersey, for the State of New Jersey. Selby purchased bulk cement for its operations from Universal Atlas Cement ("Atlas") and the latter contracted with Schwerman to deliver the cement to the project in motor trucks. The deliveries were made by tractor-trailer units to Selby's batching plant located at the job site. The cement was unloaded by means of compressed air generated by the tractor forcing it from the trailer unit into the bin or silo of the batching plant. The unloading operation involves the hook-up of the delivery pipe of the trailer to the receiving pipe which is attached to the bin; connection of the air hose between the tractor which operates the compressor and the trailer (which contains the cement); starting and regulation of the tractor motor; the build-up and maintenance of proper air pressure to the cement compartment on the trailer; and the operation of the delivery valves.

The testimony discloses that Schwerman made several deliveries of cement in May, 1961 and that the unloading was then performed by members of Engineers, under instructions of one of Selby's supervisory employees. After a "few loads" deliveries were stopped due to a job shutdown and then resumed on June 8, 1961. At that time Schwerman learned that Engineers' members had been doing the unloading and instructed its drivers "under no circumstances to allow anyone else to unload the truck".

On June 9, 1961 when a tractor-trailer unit of Schwerman arrived at the project site, one Czyz, a member of Engineers, attempted to unload the cement cargo and was told by Schwerman's driver, Heilman, that he was not to do so and that he, Heilman, would unload. At that juncture another member of Engineers told Heilman "If we don't unload it, nobody unloads it . . . take it out of here". One Gatti, Engineers' steward on the job, then present, told Heilman the unloading job "was Engineers' work." Heilman, after consulting by phone with Schwerman's Terminal Manager Wilson, his superior, drove the tractor-trailer, loaded, from the project site.

On June 12, 1961, Wilson accompanied Schwerman's tractor-trailer to the project. Gatti then told Wilson and his driver that unloading was the "job" of Engineers. Wilson, in reply, said the "job" was that of its drivers, members of Local No. 773, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Teamsters"). After a delay of an hour and a half during which Gatti conferred with Selby's supervisor, Wilson was advised that his driver could ...


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