29 U.S.C.A. § 159. Neither of the respondents in this case has any labor dispute with Robin Hood, nor with any contractor or material supplier, other than Loverchio, at Robin Hood's Park Ridge project. There have been times during the continuance of the daily picketing at the project when no Loverchio employees were present on the site.
Petitioner has alleged and endeavored to prove that the picketing at Robin Hood's Park Ridge job site was jointly participated in by Council and by Carpenters. Although Brennan, the president of Council, and other delegates to that association served as picketers, respondents contend that such participation was in their respective individual capacities, and not as representatives of Council. I conclude from the testimony that the various other craft locals represented on Council made common cause with Carpenters in establishing and maintaining the picketing complained of, and that Council has aided and abetted the practice complained of.
It is the further contention of petitioner that there exists reasonable cause to believe that the objects of the picketing are to force Robin Hood and its other subcontractors to cease doing business with Loverchio, and to force Loverchio to recognize or bargain with Carpenters as representative of Loverchio's employees, despite the fact that Carpenters has not been certified as such representative under the provisions of section 9 of the Act. The unfair labor practices charged by petitioner include that described in section 8(b)(4)(ii)(B) of the Act. This provision declares that it is an unfair labor practice for a labor organization or its agents '(ii) * * * to threaten, coerce, or restrain any person engaged * * * in an industry affecting commerce, where * * * an object thereof is -- * * * (B) forcing or requiring any person * * * to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 9: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing; * * *.' Respondents contend that the picketing complained of is lawful because primary in character, despite the conceded fact that the picketing is being maintained upon a common situs upon which other employers, in addition to the employer being picketed, are conducting operations.
McLeod, Regional Director, etc., v. Hempstead Local No. 1921, United Brotherhood of Carpenters, etc., D.C.E.D.N.Y.1960, 183 F.Supp. 494 was a case in which a housing developer, with subcontractors, let his carpentry work to one Benson, a non-union self-employed workman. The business agent of the local threatened to picket the job unless the carpenter joined the union and hired a union carpenter. Benson refused and picketing began at the entrance to the development tract. Signs carried by the picket read, 'Concord Estates Paul Weissbluth Employs Non-Union Carpenter Contractors.' (Weissbluth was the executive officer of the developer.) Water-main subcontractor's employees and others walked off the job and refused to enter the site. The Court concluded that the object was to have Benson join the union or, failing that, to have the developer hire a union contractor in Benson's stead. The Board had reasonable cause to believe there were violations of sections 8(b)(4)(A) and (B), and cited N.L.R.B. v. Denver Bldg. & Construction Trades Council, 1951, 341 U.S. 675, 71 S. Ct. 943, 95 L. Ed. 1284; and N.L.R.B. v. United Construction Workers, 4 Cir., 1952, 198 F.2d 391, certiorari denied 1952, 344 U.S. 876, 73 S. Ct. 170, 97 L. Ed. 678. Here, as in N.L.R.B. v. International Hod Carriers, etc., Local No. 1140, 8 Cir., 1960, 285 F.2d 397, 400, certiorari denied 366 U.S. 903, 81 S. Ct. 1047, 6 L. Ed. 2d 203, respondents insist that they have met the 'Moore Dry Dock tests' ( Sailors' Union of the Pacific v. Moore Dry Dock Company, 92 N.L.R.B. 547) because 'a) the picketing is strictly limited to times when the situs of dispute is located on the secondary employer's premises; b) at the time of the picketing the primary employer is engaged in its normal business at the situs; c) the picketing is limited to places reasonably close to the location of the situs; and d) the picketing discloses clearly that the dispute is with the primary employer.' However, as pointed out in Hod Carriers, supra, 285 F.2d at page 401, 'These tests * * * are to be employed in the absence of more direct evidence of the intent and purposes of the labor organization' in picketing. Where, as I find here, the evidence discloses that Carpenters was no longer desirous of securing a contract with Loverchio, but, nevertheless, disclosed an intent to maintain the picket line only so long as the secondary employer continued to do business with the primary employer, the conclusion is justified that an object of the picketing was to force Robin Hood to cease doing business with Loverchio. Such an object is proscribed by section 8(b)(4) (ii)(B) of the Act. See Superior Derrick Corp. v. N.L.R.B., 5 Cir., 1960, 273 F.2d 891, certiorari denied 364 U.S. 816, 81 S. Ct. 47, 5 L. Ed. 2d 47.
The question whether an object of a strike on a building construction job was to force the contractor to terminate the contract of a subcontractor was presented in N.L.R.B. v. Denver Building and Construction Trades Council, 1951, 341 U.S. 675, 71 S. Ct. 943, 95 L. Ed. 1284, and there answered in the affirmative; thus resulting in a reversal of the Court of Appeals, 87 U.S.App.D.C. 293, 186 F.2d 326, which had found to the contrary. The respondents in that case had contended that their dispute was primary with the general contractor alone, and that their object was to make the construction project an all-union job. The electrical subcontractor employed nonunion men. Prior to completion of the subcontract the subcontractor was notified to get off the job so that it could be completed by the general contractor. The picket was removed and thereafter the union employees resumed work on the project. The subcontractor filed a charging complaint with the Board, charging that an object of the respondents was to force the general contractor to cease doing business with the subcontractor on that project. In reaching its conclusion that an object of the strike was to force the contractor to terminate the subcontract, and that therefore the strike constituted an unfair labor practice, the Supreme Court reasoned (at page 688 of 341 U.S., at page 951 of 71 S. Ct.), as follows: 'If there had been no contract between * * * (the general contractor) and * * * (the subcontractor) there might be substance in their (respondents') contention that the dispute involved no boycott. If, for example, * * * (the general contractor) had been doing all the electrical work on this project through its own nonunion employees, it could have replaced them with union men and thus disposed of the dispute. However, the existence of the * * * subcontract presented a materially different situation. The nonunion employees were employees of * * * (the subcontractor). The only way that respondents could attain their purpose was to force * * * (the subcontractor) itself off the job. This, in turn, could be done only through * * * (the general contractor's) termination of * * * (the subcontractor's) subcontract. The result is that the Council's strike, in order to attain its ultimate purpose, must have included among its objects that of forcing * * * (the general contractor) to terminate that subcontract.'
In Local 74 United Brotherhood of Carpenters, etc., v. N.L.R.B., 1951, 341 U.S. 707, 71 S. Ct. 966, 970, 95 L. Ed. 1309, following the Denver Trades Council case, supra, 'one of the objects * * * complained of was to force' the owner of the building being renovated to cancel his contract with the wall and floor covering contractor, who had declined to enter a bargaining agreement with the local. This was held to be a secondary boycott, as the term is defined in International Brotherhood of Electrical Workers, Local 501 v. N.L.R.B., 2 Cir., 1950, 181 F.2d 34, affirmed 341 U.S. 694, 71 S. Ct. 954, 95 L. Ed. 1299.
If we attach credence to the insistence by the respondent Carpenters that at the time it established the picket line at the Robin Hood tract, it was no longer desirous of obtaining a representation agreement with Loverchio, then its purpose must have been an attempt to punish Loverchio for its persistence in refusing to come to an agreement. Such an objective could be secured by ousting Loverchio from the job. Such ouster could be achieved most effectively by compelling Robin Hood to terminate its subcontract with Loverchio. It is, therefore, difficult, if not impossible, for me to believe that the latter was not an object of the picketing complained of. It follows, therefore, that the Regional Director would have reasonable cause to indulge in a similar belief. In Seafarers' International Union, etc., v. N.L.R.B., 1959, 105 U.S.App.D.C. 211, 265 F.2d 585, at page 591, we are told: 'Section 8(b)(4) must be interpreted and not merely read literally. No matter how great the pressure on a neutral employer may be when somebody else's place of business is picketed, it is essentially different from the pressure such a neutral feels when his own business is being picketed. This difference in pressure, between that which occurs, somewhat indirectly, when another employer's premises are picketed and that which occurs when a neutral employer's own premises are picketed, is the rationale which must govern the interpretation of Section 8(b)(4).' In the present case the primary employer (Loverchio) was working on the neutral employer's (Robin Hood's) premises. The picketing was set up and maintained at those premises and its threatened impact extended to the neutral employer and to his other subcontractors equally with the primary employer.
While the picketing has thus far been unsuccessful in forcing Robin Hood to oust Loverchio from the job, or in inducing any employee of any of the crafts working at the site to leave the job, the evidence is, in my opinion, ample to induce the belief that a proscribed object was and is contemplated in the setting up and maintenance of the picket line. I am also impelled to the conclusion that the Regional Director has reasonable cause to believe that the respondent Council was and continues to be equally involved with Carpenters in the violation of the Act charged in the petition here and in the complaint before the Board.
Accordingly, the preliminary injunction sought by the petitioner will be granted. An order in conformity with the views herein expressed may be presented.
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