145 F. Supp. 316 | E.D. La. | 1956
This proceeding is before the court on a petition filed by the Regional Director of the Fifteenth Region of the National Labor Relations Board seeking an injunction against respondents restraining them from engaging in secondary boycotts within the meaning of Section 8(b), Subsection (4) (A) and (B), of the National Labor Relations Act, 29 U.S.C.A. § 158(b) (4) (A, B). The Act empowers the Board, upon the filing of appropriate charges, to issue, hear and determine complaints that employers or labor organizations have engaged in or are engaging in unfair labor practices within the meaning of the Act,
The Regional Director of the Board, after investigation, concluded that there was reasonable cause to believe that respondents here have committed unfair labor practices affecting commerce and, therefore, seeks in these proceedings an injunction to restrain further commission of these practices until the question of their legality may be passed on in due course by the Board. He predicates his conclusion on the following facts.
Jahncke Service, Inc., a Louisiana corporation whose operations admittedly bring it within the purview of the National Labor Relations Act, is engaged in, among other things, the manufacture, sale and distribution of ready-mixed concrete, concrete pipe and concrete products. It maintains several locations in and about New Orleans, in addition to an
On August 30, 1956, pickets from Local 406 began following Jahncke trucks making deliveries of ready-mixed concrete to contractors at construction projects. While the placards carried by the pickets showed that the union’s dispute was with Jahncke, the legend on the placard so indicating was in much smaller print than the large word “picket” which occupied the space across the top of the placard. The construction sites were picketed whenever a Jahncke truck came on the premises, the pickets standing sometimes in close proximity and sometimes as much as 600 feet away. In addition to the placard, the pickets also carried handbills which explained that the union’s differences were with Jahncke and not with the contractor on the construction site. These handbills were available on request, the pickets generally making no effort otherwise to distribute them.
When the pickets arrived on the construction sites, the employees of the secondary employers refused on many, but not all, occasions to perform their duties while the Jahncke trucks were on the premises. The business agent of Local 406 sought to have the contractors refuse to handle Jahncke concrete. With reference to at least one contractor, where the request was unheeded, work stoppages followed whenever Jahncke trucks appeared thereafter. As a result of the picketing and other activities of the union, seven of the eight general contractors using Jahncke concrete ceased so doing after picketing of the construction sites began.
Petitioner contends that, as a result of the picketing by respondents, Section 8 (b), Subsection (4) (A) and (B), of the Act have been violated in that the object of the picketing, which resulted in the concerted refusal of employees of secondary employers to perform the duties under their employment, was to force the secondary employers to cease using the products of Jahncke and to force Jahncke to recognize or bargain with respondents who have not been certified as representative of Jahncke’s employees under the provisions of Section 9 of the Act, 29 U.S.C.A. § 159.
Respondents maintain that ambulatory picketing is lawful where it conforms to the criteria outlined in the Moore Dry Dock case.
Congress, in Section 8(b), Subsection (4) (A) and (B), while recognizing the right of labor organizations to bring pressure to bear on primary employers in labor disputes, has sought to shield neutral employees from damage resulting from labor disputes not their own. In these subsections of the Act, Congress has made it unlawful for a union to engage in or to encourage strikes or work stoppages among employees of neutral employers where the object thereof is to force the neutral employers to cease doing business with the struck employer. In attempting to implement the Congressional mandate, the National Labor Relations Board has sought in its decisions to outline the conditions under which picketing affecting secondary employers would be considered lawful. These conditions are outlined in Moore Dry Dock, supra.
Without attempting to analyze the various cases which have been written on this subject, it may be well to state some of the principles which seem to be evolving therefrom. Ambulatory picketing as such is not proscribed by the Act.
No serious problem arises where all of the employees of the struck employer perform their entire day’s work at that employer’s plant. Complications do arise, however, where some of such employees are required to perform their services at a common situs with employees of neutral employers. Apparently, if these employees working at the common situs are not available at the primary employer’s plant, at least some portion of their working day, ambulatory picketing at the common situs is legal in spite of the fact that employees of neutral employers at the common situs may refuse to cross the picket line. National Labor Relations Board v. Local Union No. 55, 108 N.L.R.B. 363, 364-366, enforced 10 Cir., 218 F.2d 226; National Labor Relations Board v. Chauffeurs, Teamsters, etc., 106 N.L.R.B. 629, 632-639, enforced 7 Cir., 212 F.2d 216.
This court rejects the Board’s contention that where employees of the primary employer may be reached at its premises, picketing at the premises of the secondary employer is a per se violation of the Act. Sales Drivers, etc. v. National Labor Relations Board, supra; National Labor Relations Board v. General Drivers, etc., supra. Under the First and Fourteenth Amendments to the Constitution, both sides to a labor dispute, or any other dispute, have a right freely to publicize that dispute and lawfully to picket wherever they feel such picketing may be effective. Garner v. Teamsters Union Local 776, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228; American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855. Picketing, like freedom of speech, is subject to restraint only by a proper exercise of sovereign police power or positive law. Allen-Bradley Local 1111 v. Wisconsin Employment Relations Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154; Milk Wagon Drivers Union of Chicago Local 753 v. Meadowmoor Dairies, Inc., 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836. In the case at bar, it is only where the picketing is performed at the premises of the secondary employer with the objective proscribed by the Act that it becomes unlawful. 29 U.S.C. § 158(b) (4) (A, B). If its purpose is to persuade people as to the righteousness of the cause of the pickets, it is legally unobjectionable. However, if its purpose is to create work stoppages at the premises of the secondary employer, in order to force that employer to cease doing business with the primary employer, then it comes within the prohibition of the Act.
In the case at bar, the union picketed secondary employers whenever Jahncke trucks were on the construction sites. Such picketing resulted in some work stoppages. The purpose of the picketing could not have been to publicize the strike to the Jahncke truck drivers because those truck drivers crossed the picket lines at various Jahncke plants ten to twelve times each day. Moreover, the business agent of Local 406 requested contractors to cease using Jahncke concrete and when the request went unheeded, more work stoppages followed. All but one of the contractors supplied with concrete by Jahncke eventually stopped using Jahncke concrete. These facts persuade this court that there is reasonable cause to believe that the objective of the picketing in suit was to force the secondary employers, through the creation of work stoppages at their construction sites, to cease doing business with the primary employer.
It may well be, as respondents contend, that these facts do not demonstrate a violation of Subsection (4) (A) and (B) of Section 8(b) of the Act. But it is not necessary for this court to make that determination. Since the facts here clearly demonstrate that there is reasonable cause to believe that a violation of the Act may have been committed, it is the duty of this court to maintain the status quo by enjoining the questioned activity until its legality can be definitively passed on by the exercise of the expertise of the National Labor Relations Board. It is for the Board to determine, after a full hearing, whether the objectives of the union’s secondary activity are illegal under the Act. This
Decree for petitioner.
. Section 10(a) (b) and (c), 29 U.S.C.A. § 160 (a-c).
. Section 10(i), 29 U.S.C.A. § 160(0.
. 92 N.L.R.B. 547.
. These conditions are that the picketing disclose clearly that the dispute is with the primary employer only, that the picketing is limited to times when the dispute situs is on the neutral employer’s prem
. Washington Coca-Cola Bottling Works, Inc., v. National Labor Relations Board, 107 N.L.R.B. 299, 303, affirmed Brewery and Beverage Drivers and Workers Local Union No. 67 v. N. L. R. B., 95 U.S.App.D.C. 117, 220 F.2d 380; Southwestern Motor Transport, 115 N.L.R.B. 155; W. H. Arthur Company, 115 N.L.R.B. 183.
. Bakery and Pastry Drivers & Helpers Local 802 of International Brotherhood of Teamsters Local v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 L.Ed. 1178; National Labor Relations Board v. Service Trade Chauffeurs, etc., 2 Cir., 191 F.2d 65.
. National Labor Relations Act, Section 8 (b), Subsection (4) (A) and (B).
. See National Labor Relations Board v. Truck Drivers & Helpers, etc., 111 N.L.R.B. 483, enforced 5 Cir., 228 F.2d 791; Washington Coca-Cola Bottling Works, Inc., v. National Labor Relations Board, supra. Compare Sales Drivers, etc. v. National Labor Relations Board, supra; National Labor Relations Board v. General Drivers, etc., supra.