The opinion of the court was delivered by: BECKER
Samuel E. Long Inc. ("Long") is a general contracting firm which is engaged in the construction of an addition to a school in West Chester, Pennsylvania. The workmen who are employed directly by Long are not members of any labor union. The Building and Construction Trades Council of Philadelphia and Vicinity ("Council") is an unincorporated association whose membership is composed of delegates from some 163 craft unions and councils in the building and construction industry in Philadelphia County and the surrounding counties of Delaware, Chester, Montgomery and Bucks in Southeastern Pennsylvania. While its functions are many, the Council does not, qua Council, seek to organize or act as a collective bargaining representative for individuals employed by any firm engaged in the construction industry.
On January 24, 1972, the Council commenced picketing at the East Junior-Senior High School construction site, where Long is the general contractor. It is undisputed that the picketing has continued from January 24 to the present time and that it has brought the work, which is approximately 35% complete, to a virtual halt, because the employees of those union subcontractors who are on the job have refused to cross the picket line.
This case arises under § 10(l) of the Labor Management Relations Act ("Act"), 29 U.S.C. § 151 et seq. The petitioner, Bernard Samoff ("Samoff"), Regional Director of the Fourth Region of the National Labor Relations Board ("Board") has sought, on behalf of the Board, a preliminary injunction restraining the picketing on the grounds that it violates § 8(b)(7)(C) of the Act (see text infra). In general, § 8(b)(7)(C) proscribes organizational or recognitional picketing for more than thirty days without the filing with the Board of the petition for certification under § 9(c) of the Act. The Council contends that its picketing is not for any organizational or recognitional purpose, but rather, to obtain from Long what is known in the construction industry as a "subcontractors agreement," i.e., an arrangement pursuant to which a general contractor agrees that whenever he subcontracts work on any construction job, he will employ only subcontractors who, before commencing work on the job site, have entered into collective bargaining agreements with craft unions affiliated with the Council. The Council asserts that picketing for this purpose is not proscribed by § 8(b)(7)(C). On the other hand, the Board contends that, even if we find that the Council's purpose in picketing was not, as the Board asserts, to organize Long's employees, § 8(b)(7)(C), read in the context of this case, also prohibits picketing by the Council for a subcontractors agreement. The theory behind this contention is that the objective of the Council's picketing is to force Long to deal with it on a matter (subcontracting) which is a proper subject of collective bargaining and which inevitably and substantially affects the working conditions of Long's employees; that the picketing is, a fortiori, recognitional in nature; and that it is therefore in violation of § 8(b)(7)(C).
In support of its position, the Board relies heavily on a case emanating from the Court of Appeals for the District of Columbia Circuit, Dallas Building and Construction Trades Council v. NLRB, 130 U.S. App. D.C. 28, 396 F.2d 677 (1968), and also upon a case on which Dallas in turn relies, Centralia Bldg. and Constr. Trades Council v. NLRB, 124 U.S. App. D.C. 212, 363 F.2d 699 (1966). Notwithstanding the Board's reliance, neither Dallas nor Centralia deals with the factual situation which is involved here, and Dallas, which is the closer case of the two on the facts, deals with § 8(b)(7)(A) which, for reasons discussed infra, has a significantly different thrust. In fact, there is no case reported or unreported which we could find or to which able counsel could direct us which squarely deals with the question of whether subcontractor picketing violates § 8(b)(7)(C), a question which, we note, is apparently growing in importance because of the increasing use by building trades councils of the subcontractor picketing device.
We have reviewed the evidence taken at the extensive preliminary injunction hearing which we held in the case, and have studied the parties' briefs. We find (see infra) there is reasonable cause to believe that the purpose of the picketing was not to organize Long's employees, but to obtain from Long a subcontractors agreement. We are not unmindful of the Board's legal position which it has cogently expressed that subcontractor picketing violates § 8(b)(7)(C), nor of its concern that widespread contractor picketing will impede the flow of commerce; however, for the reasons which follow, we do not read § 8(b)(7)(C) as proscribing that type of picketing. Accordingly, despite our limited role in § 10(l) proceedings,
the Board's prayer for injunctive relief will be denied.
Before analyzing the Act, the legislative history and the caselaw, we must set forth the findings of fact which underly our ultimate conclusion. We will also deal in this Opinion with the assertion by the Council that it is not a labor organization within the meaning of the Act and that it is therefore not subject to § 8(b)(7)(C) at all.
II. Purpose of the Picketing
The record has raised a factual dispute as to the purpose of the picketing. The picketing commenced on the morning of January 24, 1972. At that time Robert Williams ("Williams") and Charles Boyer ("Boyer"), who are delegates to the Council, went to the scene to supervise the picketing. Acting on the instructions of Thomas Magrann ("Magrann"), the Council's business agent, they sought and obtained a meeting with the principal of the school for the purpose of requesting the school authorities to erect a sign directing construction workers to the construction entrance, which is separate from the main entrance to the junior high school, so that there could be no disruption of school activities. According to William K. Dowler and Donald R. Howland, school officials who were present at the meeting, Williams stated that the nature of the picketing was "organizational," and that they were there "to organize Sam Long because he is non-union."
This part of the conversation lasted about 35 seconds during a fifteen minute meeting. Based upon this evidence, the Board has asked us to find that there is reasonable cause to believe that the purpose of the picketing was in fact to organize Long's employees.
The Council has not attempted to controvert the fact of Williams' replies; it has however argued that they are not entitled to credence. This argument stems from the Council's contentions that Williams had no authority to make representations as to the purpose of the picketing and that he was in any event totally incorrect as to its purpose as shown by the explicit record of official union action. We credit the Council's position, and recite the following as background for our finding that there is reasonable cause to believe that the purpose of the picketing was not to organize Long's employees, but to obtain from Long a subcontractors agreement.
In September of 1971, the Board and the Council entered into a stipulation terminating the § 10(l) proceedings between them before Judge Alfred L. Luongo of this Court, arising out of the Council's picketing of a firm known as Office Developers Inc.
Inter alia, that stipulation, which was approved by the Court, recited that if the Council were to resume picketing solely for the purpose of forcing Office Developers Inc. to agree to use only union subcontractors, it would not be considered in violation of a decree entered by the Court proscribing violations of § 8(b)(7)(C). Following the Office Developers stipulation, Bernard N. Katz, Esq. ("Katz"), the Council's attorney, advised the Council to use the subcontractor picketing device in appropriate situations. The Council thereupon undertook an orientation program looking toward future use of subcontractor picketing.
On October 17, 1972, Katz addressed the Council members at their regular meeting with respect to the incidents of subcontractors agreements and the guidelines for subcontractor picketing.
By December of 1971, the Council had become aware that the Long job was progressing in West Chester. On December 7, 1971, pursuant to authorization by Magrann, Katz wrote to Samuel Long, the principal of the corporation. After reciting that Long was not a party to a subcontractors agreement, Katz stated:
"This office is counsel for the Building & Construction Trades Council of Phila. & Vicinity. We have been advised that you are performing work within the jurisdiction of the Council and that you are not a party to a subcontractors agreement under which you would be obliged to subcontract to organizations dealing with craft unions affiliated with the Council.
"Picketing is presently being contemplated at such of your operations as the school construction in West Chester, Penna. Such picketing will have as its objective solely the obtaining of the referred to agreement. It will not have as its objective any actions which are in any way limited or prohibited by the Labor Management Relations Act of 1947."
Sam Long Contractor Refuses to enter into a Sub-Contractors Agreement with the Philadelphia, Pennsylvania Building & Construction Trades Council AFL-CIO"
The purpose of the Union's picketing at the East High School site was also the subject of testimony at the hearing by Magrann and Katz. Both witnesses testified unequivocally that the (ongoing) picketing has but one purpose: to compel Long to execute a subcontractors agreement with respect to future jobs. They emphatically eschewed any intention to organize Long's employees or to affect the present job in any way, even with respect to non-union subcontractors to whom contracts had been let but who have not yet entered on the job. They also pointed out that a subcontractors agreement does not require Long to subcontract work; Long is free to subcontract or not as it chooses. The agreement applies only when Long chooses to engage subcontractors. The form of subcontractors agreement sought by the Council was introduced into evidence (P6). That agreement provides, in pertinent part, that:
"1. The General Contractor agrees to provide in its specifications when doing any business with subcontractors for work on the job site, that such subcontractors as a condition precedent to their commencing work on the job site will be signed with a member union of the Council who is the recognized collective bargaining agent of the particular trade.
2. The General Contractor agrees that no subcontractors will be awarded any work on the job who do not meet the provisions of Paragraph 1 above and that no such subcontractor will be permitted to perform any work on the job."
The testimony about the letter to Long and the Council meetings is uncontradicted. We credit that testimony as well as that of Magrann and Katz as to the purpose of the picketing. The by-laws of the Council are consistent with this testimony as is the further testimony of Magrann and Katz that the Council never seeks to organize employees in the building trades and to act as their collective bargaining representative. We therefore find reasonable cause to believe that the purpose of the Council's picketing is to attempt to secure from Long a subcontractors agreement, not to organize Long's employees or to obtain for the Council or any of its affiliated craft unions recognition from Long as their bargaining agent. We recognize the validity of the proposition that picketing may have more than one purpose, and that, in order to violate § 8(b)(7)(C), it is necessary only that organization and recognition be a purpose of the picketing.
However, we find no reasonable ...