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August 17, 1951

DOUDS, et al.

The opinion of the court was delivered by: MODARELLI

This is a statutory proceeding for 'such temporary relief or restraining order as * * * (the court) deems just and proper', arising under Section 10(j) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(j), brought by the Regional Director of the Second Region of the National Labor Relations Board, on behalf of the Board against Anheuser-Busch, Inc., and Teamsters Locals 153 and 843 AFL. The proceedings came before this court through the means of an order to show cause. Charges have been made to the National Labor Relations Board, and a complaint issued. A temporary restraining order was entered on June 13, 1951.

This court is called upon to decide whether the acts, as a matter of law, come within the practices defined by the Act as unfair and whether the evidence shows that there is reasonable cause to believe that the respondents engaged in such unfair labor practices. Douds v. Local 294, Teamsters Union, D.C.N.D.N.Y. 1947, 75 F.Supp. 414; Evans v. International Typographical Union, D.C.S.D. Ind. 1948, 76 F.Supp. 881; United Brotherhood of Carpenters & Joiners of America v. Sperry, 10 Cir., 1948, 170 F.2d 863; Shore, for Use and on Behalf of N.L.R.B. v. Building & Construction Trades Council, 3 Cir., 1949, 173 F.2d 678, 8 A.L.R.2d 731; Penello v. International Union, UMW, D.C.D.C. 1950, 88 F.Supp. 935.

 The ultimate determination of the truth of the charges and the existence of a violation is reserved exclusively to the Board, subject to review by the courts of appeals pursuant to Section 10(e) and (f) of the Act.

 Specifically, the charge states that Anheuser-Busch, Inc., has engaged in unfair labor practices within the meaning of Section 8(a), Subsections (1), (2), and (3) of the Act, and respondents, Locals 153 and 843, have engaged in unfair labor practices within the meaning of Section 8(b), Subsections (1)(A) and (2) affecting commerce within the meaning of Section 2(6) and (7) of the Act. It is conceded by all parties that the court has jurisdiction.

 During January 1950, respondent, Anheuser-Busch, Inc., commenced construction of a brewery plant in Newark, New Jersey. During the construction phase, the United Brewery Workers CIO and the Teamsters Locals 153 and 843 AFL made conflicting demands for recognition as exclusive bargaining representatives of the employees in the various departments. After the brewery department was in operation, the CIO filed a petition with the National Labor Relations Board requesting certification as the representative of the workers in that department. On April 13, 1951, a consent election of the Board was held and the United Brewery Workers won over the rival AFL organizations. On May 18, 1951, the United Brewery Workers was certified by the Board as the exclusive bargaining representative of the brewery department.

 On April 27, 1951, respondents, Teamsters Locals 153 and 843, sought recognition from Anheuser-Busch, Inc., as exclusive bargaining representatives of the employees that were yet to be hired in the bottling, freight handling, and several smaller departments. At that time, there were only four (4) employees in the freight handling department and none in the other departments. These Locals threatened to picket Anheuser's Newark plant if their demand was refused. The Newark plant was still in the process of construction, and the Essex County Building Trades Council AFL, through its president, made known to Anheuser-Busch, Inc., that in the event of picketing by their brother AFL locals, the construction men would refuse to cross the picket line, and immediately an agreement was made to enter into contracts between the respondents, Anheuser-Busch, Inc., and Locals 153 and 843. The Locals were referred by Anheuser-Busch, Inc., to the New Jersey Brewers Association for the negotiation of the contracts, and they were executed on the same day, April 27, 1951, at the Office of the Association. These contracts covered the prospective employees in all but the brewing department of the Newark plant.

 On March 3, 1951, it was orally agreed between Anheuser-Busch, Inc., and Local 153 that the Local would refer to the Company a list of men from which the Company would select its employees. Subsequently, the Company hired twenty-three (23) men so referred by the Union for their freight handling department. A similar oral agreement was concluded between the Company and Local 843, and pursuant to it Local 843 referred approximately fifty (50) men to the Company for positions in the bottling department and smaller units. On June 13, 1951, the Company hired ten (10) men from this list of fifty (50). The Company also hired two (2) porters, three (3) checkers, and three (3) stockhandlers who had been approved by Local 843. These agreements naturally resulted in discriminatory hiring practices. Over ten thousand (10,000) applications for employment had been received by the Company for about one thousand (1,000) job openings, which applications were disregarded as a source of manpower. The hired employees had their bargaining representatives already chosen for them as a result of the contracts.

 The National Labor Relations Board does not carry the sole responsibility of enforcing the Act. The United States District Courts have been entrusted with a share of that responsibility, and they have not shirked that responsibility. Douds v. Local 294, Teamsters Union, supra; Evans v. International Typographical Union, UMW, D.C.D.C. 1948, 79 F.Supp. 616; Curry, for and on Behalf of N.L.R.B. v. Union De Trabajadores De La Industria, Del Cemento Ponce, D.C. Puerto Rico, San Juan Division 1949, 86 F.Supp. 707; Penello v. International Union, UMW, supra; Jaffee v. Newspaper & Mail Deliverers' Union of New York & Vicinity, D.C.S.D.N.Y. 1951, 97 F.Supp. 443.

 Section 10(j) of the Act gives the court jurisdiction to grant 'such temporary relief or restraining order as it deems just and proper.' Congress clearly intended that the court should exercise its discretion with due regard to the large objectives of the Act. Douds. v. Wine, Liquor & Distillery Workers Union, Local No. 1, D.C.S.D.N.Y. 1948, 75 F.Supp. 447. This intent is evident in the Majority Report of the Senate Committee on Labor and Public Welfare, Senate Report 105-80th Congress, 1st Session, where it is stated:

 ' * * * the relatively slow procedure of Board hearing * * * falls short of achieving the desired objectives- the prompt elimination of the obstructions to the free flow of commerce and encouragement of the practice and procedure of free and private collective bargaining. Hence we have provided that the Board, acting in the public interest and not in vindication of purely private rights, may seek injunctive relief in the case of all types of unfair labor practices * * * .' (P. 8)

 ' * * * It has sometimes been possible for persons violating the act to accomplish their unlawful objective before being placed under any legal restraint and thereby make it impossible or not feasible to restore or preserve the status quo pending litigation.' (P. 27)

 In obedience to this and similar intent of Congress and the desire to effectuate a statutory policy, the courts have consistently held that the grant of the injunction depends upon the standards set forth in the statute and not upon traditional equity criteria. S.E.C. v. Jones, 2 Cir., 1936, 85 F.2d 17; S.E.C. v. Torr, 2 Cir., 1937, 87 F.2d 446, 450; Virginian Railway Co. v. System Federation No. 40, 1937, 300 U.S. 515, 552, 57 S. Ct. 592, 81 L. Ed. 789; American Fruit Growers v. United States, 9 Cir., 1939, 105 F.2d 722; United States v. Adler's Creamery, Inc., 2 Cir., 1940, 110 F.2d 482; Hecht Co. v. Bowles, 1944, 321 U.S. 321, 331, 64 S. Ct. 587, 88 L. Ed. 754; Douds v. Local 294, Teamsters, supra, 75 F.Supp. at pages 417, 418.

 The purposes of the Act are clearly expressed in Section 1(b), 29 U.S.C.A. § 141(b): 'to promote the full flow of commerce, to prescribe the legitimate rights of both employees and employers in their relations affecting commerce * * * to protect the rights of individual employees in their relations with labor organizations * * * to define and proscribe practices on the part of labor and management which affect commerce and are inimical to the general welfare * * * .' This statutory policy is effectuated by Section 7 of the Act, Title 29 U.S.C.A. § 157, wherein it is guaranteed that 'Employees shall have the right to self-organization * * * to bargain collectively through representatives of their own choosing * * * .' (Emphasis supplied.) The Supreme Court has been quick to uphold this guarantee. N.L.R.B. v. Jones & Laughlin Steel Corp., 1937, 301 U.S. 1, 23, 33, 57 S. Ct. 615, 81 L. Ed. 893; N.L.R.B. v. Pennsylvania Greyhound Lines, 1938, 303 U.S. 261, 166, 58 S. Ct. 571, 82 L. Ed. 831.

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