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Samoff v. Building and Construction Trades Council of Philadelphia and Vicinity

decided: February 27, 1973.

BERNARD L. SAMOFF, REGIONAL DIRECTOR OF THE FOURTH REGION OF THE NATIONAL LABOR RELATIONS BOARD, FOR AND ON BEHALF OF THE NATIONAL LABOR RELATIONS BOARD, PETITIONER-APPELLANT,
v.
THE BUILDING AND CONSTRUCTION TRADES COUNCIL OF PHILADELPHIA AND VICINITY, RESPONDENT-APPELLEE



(D.C. Civil Action No. 72-634) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.

Van Dusen, Gibbons and Hunter, Circuit Judges.

Author: Hunter

Opinion OF THE COURT

HUNTER, Circuit Judge.

This is an appeal from an opinion and order of the district court*fn1 in which that court declined to issue a preliminary injunction under § 10 (l)*fn2 of the Labor Management Relations Act of 1947, as amended 61 Stat. 149; 73 Stat. 544; 29 U.S.C. § 160 (l). This court has jurisdiction under 28 U.S.C. § 1292.

Samuel Long is a non-union contractor, i.e., none of his workers belong to unions. But sub-contracting on his construction jobs is often given to sub-contractors with union labor contracts. Appellee Building and Construction Trades Council is a trade association with area construction unions as members. Appellee decided to picket Long's latest job site, the district court found, solely to force him to employ only subcontractors who use union labor, when and if he chooses to sub-contract. He would apparently have a free choice concerning whether to sub-contract. The appearance of the pickets caused a disappearance of all union labor at Long's latest job site, bringing work to a standstill.

Long filed a charge with the National Labor Relations Board, claiming that appellee was engaging in an unfair labor practice prohibited by § 8(b)(7)(C)*fn3 of the Labor Management Reporting and Disclosure Act of 1959, 73 Stat. 519, 29 U.S.C. § 158(b)(7)(C). Pursuant to § 10 (l), the Board moved for a preliminary injunction against the picketing pending a final decision by the Board*fn4 as to whether the picketing was in fact an unfair labor practice.

For there to be an unfair labor practice under § 8(b)(7), two conditions must be met. First, the introductory clause must be satisfied, i.e., a labor organization must be picketing an employer with an objective of forcing that employer to recognize the organization as a representative of his employees. Secondly, one of the conditions in subparagraphs (A), (B) or (C) also must be met.

Although the Council's purpose was not to represent Long's employees but to force him to accept union sub-contractors, the Board still claims that the introductory clause was violated. The Board reasoned that contracting out of work which might be performed by Long's employees was a term or condition of employment of Long's employees. If, therefore, Long was forced to deal with the Council on the issue of sub-contracting, he would in effect be recognizing the Council as the agent of his employees on that particular issue. This issue is important enough to have a substantial impact on Long's employees. Therefore, it should be sufficient to satisfy the introductory clause. In support of this argument, the board relied heavily upon Dallas Building & Construction Trades Council v. N.L.R.B., 130 U.S. App. D.C. 28, 396 F.2d 677 (1968), enf'g. 164 N.L.R.B. 938 (1967) and also Lane-Coos-Curry-Douglas Counties Building & Construction Trades Council v. N.L.R.B., 415 F.2d 656 (9th Cir. 1969), enf'g. 165 N.L.R.B. 538 (1967). The NLRB felt that sub-contracting was an important issue to Long's employees even though the agreement the Council wanted Long to sign stated only that when he sub-contracted, he had to sub-contract with union employers.

The Board then claimed that sub-paragraph (C) of § 8(b)(7) was also violated since no petition for an election under § 9(C) had been filed and since none of the exceptions to § 8(b)(7)(C) had been met.

The district court, after a comprehensive consideration of the legislative history and related case law, determined that the union's picketing did not violate the introductory clause of § 8(b)(7). The Court reasoned that read in the context of sub-paragraph (C), the introductory clause means that for picketing to be "recognitional," it must have as a goal the recognition of the bargaining agent (here the Council) as the "full collective bargaining agent of those employees." According to the district court, since the effect of the proposed agreement at most would be that the Council would be the representative of Long's employees as to only one issue (sub-contracting), the introductory clause would not be violated. After holding that it was not required to issue a preliminary injunction where it disagreed with the legal theory upon which the Board relied, the court denied the Board's motion for that relief.

The Board has appealed from this denial. Its primary contention is that the district court applied an incorrect standard of law in determining when a § 10 (l) injunction should issue. The Board claims that the district court misinterpreted our decision in Schauffler v. Local 1291, International Longshoremen's Association, 292 F.2d 182 (3d Cir. 1961).

In Schauffler, this circuit was reviewing the decision of a district court to grant a § 10 (l) injunction. We said that whether such an injunction should be issued turned on whether there was reasonable cause to believe that an unfair labor practice listed in that section had been committed:

"The Board need not show that an unfair labor practice has been committed, but need only demonstrate that there is reasonable cause to believe that the elements of an unfair labor practice are present. Nor need the Board conclusively show the validity of the propositions of law underlying its charge; it is required to demonstrate merely that the propositions of law which it has ...


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