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ALTEMOSE CONSTRUCTION COMPANY v. BUILDING AND CONSTRUCTION TRADES COUNCIL PHILADELPHIA AND VICINITY ET AL. (10/20/72)

decided: October 20, 1972.

ALTEMOSE CONSTRUCTION COMPANY
v.
BUILDING AND CONSTRUCTION TRADES COUNCIL OF PHILADELPHIA AND VICINITY ET AL., APPELLANTS



Appeals from decree and judgments of Court of Common Pleas of Montgomery County, June T., 1972, No. 72-6295, in re Altemose Construction Company v. Building and Construction Trades Council of Philadelphia and Vicinity; Local United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association, Thomas Magrann, and Stephen J. Traitz, and Stephen J. Traitz and others.

COUNSEL

Bernard N. Katz and Richard B. Sigmond, with them Meranze, Katz, Spear & Bielitsky, for appellants.

John W. Pelino, with him Martin R. Lentz, and Pelino, Wasserstrom, Chucas & Monteverde, for appellee.

Jones, C. J., Eagen, Roberts, Pomeroy, Nix and Manderino, JJ. Mr. Justice O'Brien took no part in the consideration or decision of this case. Opinion in Support of Affirmance of Decree at No. 31 With Modification, and of Reversal of Judgments of Contempt at No. 40 by Mr. Justice Pomeroy. Mr. Chief Justice Jones and Mr. Justice Eagen join in this opinion. Opinion in Support of Modification of Decree With Rejection of All Distance Restrictions and Reversal of Contempt Judgments by Mr. Justice Roberts. Mr. Justice Nix and Mr. Justice Manderino join in this opinion.

Author: Per Curiam

[ 449 Pa. Page 196]

The Court is unanimous that the judgments of contempt at No. 40 should be reversed and the fines paid refunded, and it is so ordered.

The Court is unanimous that the Decree at No. 31 is too broad and must be modified, but the Court is equally divided as to the nature and extent of modification. Mr. Justice Pomeroy files an opinion in which Mr. Chief Justice Jones and Mr. Justice Eagen join in support of affirmance of the Decree at No. 31, but with modification of clause (d) of par. 1 thereof so as to reduce the distance within which congregating or assembling by appellants is prohibited. Mr. Justice Roberts files an opinion in which Mr. Justice Nix and Mr. Justice Manderino join in support of modification of the Decree at No. 31 with rejection of all distance restrictions.

Decree at No. 31 to be modified; costs on appellants. Judgments at No. 40 reversed; costs on appellee.

Disposition

Decree at No. 31 modified; judgments at No. 40 reversed.

[EDIT ]

Opinion in Support of Affirmance of Decree at No. 31 With Modification, and of Reversal of Judgments of Contempt at No. 40 by Mr. Justice Pomeroy:

We are asked today to decide important First Amendment and federal preemption challenges to the

[ 449 Pa. Page 197]

    power of a state equity court to enjoin picketing in the context of a labor dispute. Additional questions are raised touching on the inherent differences between civil and criminal contempt proceedings. These issues are the subject matter of consolidated appeals taken by the defendants, Building and Construction Trades Council of Philadelphia and Vicinity; Local 30, United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association; Thomas Magrann;*fn1 and Stephen J. Traitz,*fn2 and others [hereinafter collectively "Council"], from a decree of the Court of Common Pleas of Montgomery County granting a preliminary injunction and from separate judgments of the same court finding certain members of the defendant organizations in contempt.*fn3

We commence with the observation that the circumstances giving rise to both suits are marked by a degree of violence and destruction reflecting little improvement in the state of labor relations during the three quarters of a century since the Pullman and Homestead strikes. It is not disputed that on June 5, 1972, at approximately 7:30 A.M., an estimated 1,000 persons, including defendants Magrann and Traitz, descended upon the Valley Forge Plaza construction site of plaintiff-respondent, Altemose Construction Company (hereinafter "Altemose"), a Pennsylvania corporation engaged extensively in the building industry in the southeastern sector of the state. Many of the persons involved arrived on seven buses, chartered and

[ 449 Pa. Page 198]

    paid for by defendant Local 30; others came in a caravan of privately owned automobiles; many carried signs of allegiance to the defendant Council. There then began what was described by the hearing judge as "a virtual military assault" on the site where Altemose was constructing a Sheraton Hotel and office building, resulting in the systematic decimation of the project. Damage was estimated at $300,000 and included the following: 4,000 feet of eight-foot high cyclone fence was levelled; an office building, guard hut, and construction trailer were burned to the ground; bulldozers, graders and pans were set afire, or battered with hammers and bars, and lime was added to the fuel tanks of these vehicles. Two security guards were stoned and their vehicle totally destroyed. Local police were impotent to control the mob, and fire trucks dispatched to the scene were turned back because the safety of the firemen was endangered. Throughout this entire scene of violence and destruction a crowd of members of the Council cheered; not until the state police arrived was order restored.

Later that same day, June 5, Altemose filed a complaint in equity in the Montgomery County Court of Common Pleas to restrain the unlawful actions of defendants. Following an ex parte hearing*fn4 at which injunction affidavits and testimony of plaintiffs were presented, the court made findings as to the force and violence employed by the Council. A preliminary injunction then issued, enjoining the defendants and their agents from interfering by violence or coercion with

[ 449 Pa. Page 199]

Altemose's operations, from picketing in close proximity to the premises of Altemose or to any Altemose construction site, or from congregating in groups within one mile of locations.*fn5 The sheriff of Montgomery County

[ 449 Pa. Page 200]

    was ordered to enforce the injunction and a further hearing was set for June 9.

On the following morning, June 6, 129 picketers associated with the defendant Council were arrested at Altemose's headquarters for violating the previous day's order. At a hearing on the afternoon of the 6th, all but four were found to be in civil contempt. Their appeals from these judgments were consolidated with the appeal of all defendants from the preliminary injunction decree, and will be treated later in this opinion.

Pursuant to the June 5 decree of court, further hearings on the preliminary injunction were held June 9 and June 12. At these times, plaintiff called numerous witnesses; defendants were represented by counsel but offered no testimony. Following the completion of the June 12 proceedings, the court, from the bench, continued the order previously entered. The appeals presently before us were taken from the decree of June 12 continuing the preliminary injunction and from the judgments of contempt entered on June 6.*fn6

In addition to its account of the events of June 5 and 6, the chancellor made the following findings of fact among others: the defendants have engaged in a course of conduct, including picketing and acts of violence, spanning an entire year, calculated to force Altemose to enter into an agreement to utilize only union

[ 449 Pa. Page 201]

    subcontractors. Threats by defendant Traitz to Altemose in August, 1971 proved unavailing, whereupon the Council began picketing Altemose's school construction site at Prospect Park, Delaware County on January 24, 1972. On February 3, 1972, the Prospect Park construction trailer was burned by an incendiary device and $3,000.00 worth of damage was inflicted on work in progress. The following month, five of Altemose's trucks were drenched with gasoline and set afire. When attempts at settlement during May, 1972 were unsuccessful, the Council decided to picket the Valley Forge site, this decision leading directly to the events of June 5.

The lower court further found that the acts against Altemose were indicative of a broader proclivity on the part of the Council and its members to achieve their goals by violence and intimidation. Thus on January 25, 1972, the court found, an employee of another area contractor was attacked by six pickets, when he attempted to cross the picket line of a Council member union. In the assault the victim suffered multiple fractures, contusions, lacerations, a concussion, and $900 worth of dental damage. Following this episode, a court order limiting the number of pickets was obtained. Nevertheless, large numbers of persons associated with the Council gathered nearby in violation of the order and one even engaged in target practice while on picket duty by firing at tin cans. On April 10, 1972, two employees of still another local contractor were beaten into unconsciousness when pickets representing a member of the Council appeared at the job sites where the victims were working. Neither was attempting to cross a picket line. On May 17, 1972 two members of an area roofing contractor were beaten by members of defendant Local 30, including defendant Traitz, after Local 30 had been rejected in an NLRB

[ 449 Pa. Page 202]

    supervised election. Previously, on May 7, 1972, seven trucks of the same roofing company had been firebombed.

Both before and after the issuance of the preliminary injunction in this case, J. Leon Altemose, president, and other employees of the plaintiff corporation, have received numerous threats to their lives and the lives and safety of their families.

The lower court determined that defendants' picketing had become so enmeshed with violence, harassment, intimidation and property destruction that an atmosphere of fear and terror survives even in the absence of picketing. The court found, furthermore, that defendants in the past had demonstrated either an inability or unwillingness to comply with court orders which enjoined only violence while permitting peaceful picketing. It concluded that peaceful picketing was so inextricably interwoven with acts of violence as to render impossible the maintenance of domestic peace and order in the community.

Based upon these findings of fact, the lower court concluded that neither the federal Labor-Management Relations Act (LMRA) of 1947, 61 stat. 136, 29 U.S.C.A. § 151 et seq. nor the Pennsylvania Labor Anti-Injunction Act of June 2, 1937, P. L. 1198, § 1 et seq., 43 P.S. § 206(a) et seq. preempted its equitable jurisdiction to enjoin either violence or all congregating within one mile of Altemose construction sites.

Appellants' arguments in support of its appeal from the grant of the preliminary injunction are essentially three-fold: (1) where the acts complained of constitute practices either arguably protected or prohibited under sections 7 and 8 of the Labor-Management Relations Act, supra, a state equity court's jurisdiction is preempted in favor of the National Labor Relations Board; (2) conceding the power of the state to enjoin acts of

[ 449 Pa. Page 203]

    violence in the context of labor disputes, the order below extending even to peaceful picketing violated appellants' First Amendment rights; and (3) even if prohibition of peaceful picketing at work sites is proper under the circumstances, the prohibition of congregating within one mile of such site is impermissibly broad under the First Amendment.*fn7

Power of State Courts to Enjoin Violence During Labor Disputes

The hearing court concluded that no labor dispute existed between Altemose and the Council and that the latter's course of conduct was intended to coerce Altemose not to contract with subcontractors who hire nonunion employees. So viewed, the acts complained of constituted an unfair labor practice by the Council within section 8 (b) (4) of the Labor-Management Relations Act, supra, 29 U.S.C.A. § 158(b) (4), commonly referred to as a "secondary boycott". See Kerr v. Butler Building Trades Council, AFL-CIO, 447 Pa. 247, 288 A.2d 525 (1972). Appellants argue that this interpretation of their activities is erroneous in that they were picketing to protest the destruction of area ...


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