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CUNEO EX REL. NLRB v. INTERNATIONAL UNION OF OPERA

April 16, 1963

John J. CUNEO, Regional Director of the Twenty-Second Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 825 and Peter Weber, its Agent, Respondents



The opinion of the court was delivered by: AUGELLI

This is an action filed by the National Labor Relations Board ('Board'), pursuant to section 10(l) of the National Labor Relations Act ('Act'), as amended, 29 U.S.C.A. § 160(l), for a temporary injunction pending the final disposition by the Board of charges filed by Building Contractors Association of New Jersey ('Association'), alleging that respondents have engaged in, and are engaging in, unfair labor practices within the meaning of section 8(b)(4) (A) and (B) of the Act, 29 U.S.C.A. § 158(b)(4)(A) and (B), which prohibit so-called 'hot cargo' contracts and 'secondary boycotts', respectively.

 The Association contains approximately 135 employers engaged in the construction industry in New Jersey and elsewhere, and is an employer within the meaning of section 2(2) of the Act, 29 U.S.C.A. § 152(2). Members of the Association are engaged in commerce or in an industry affecting commerce within the meaning of section 2(6) and (7) of the Act, 29 U.S.C.A. § 152(6) and (7). The Association has conducted and is authorized to conduct collective bargaining negotiations on behalf of its members with respondents.

 On April 27, 1962, respondents sent to the Association 45 opening demands for a new collective bargaining agreement to be effective July 1, 1962, which included a proposal for a subcontractor clause. That clause was subsequently presented to the Association in the following form:

 'This Agreement shall bind all sub-contractors while working for an Employer who is a party to this Agreement. Any Employer who sublets any of his work must sublet the same subject to all the terms and conditions of this agreement.'

 Negotiations between the Association and respondents for a collective bargaining agreement continued intermittently up to the time of the hearing in this Court; but, except for 8 members of the Association who signed an agreement containing a subcontractor clause, no accord was reached. In the meantime, various work stoppages occurred in August and November, 1962 on construction job sites where members of the Association were working. On November 14, the parties were before this Court, at which time a stipulation was entered into whereby the parties resumed bargaining negotiations, which continued until an impasse was again reached, whereupon the present proceeding was reinstated. No work stoppages have occurred since November 14, 1962.

 The Board argues essentially that the August and November, 1962 work stoppages were for the purpose of pressuring the members of the Association to enter into a collective bargaining agreement containing the subcontractor clause, in violation of section 8(b)(4)(A) and (B) of the Act. Of course, in a section 10(l) proceeding of this nature, the Court must determine only whether or not the Board has 'reasonable cause to believe' that the unfair labor practice charged has been committed. Schauffler v. Local 1291, International Longshoremen's Association, 292 F.2d 182 (3 Cir. 1961).

 Section 8(b)(4)(A) and (B) provides, in pertinent part, that:

 'It shall be an unfair labor practice for a labor organization or its agents --

 '(4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is --

 '(A) forcing or requiring any employer * * * to enter into any agreement which is prohibited by subsection (e) of this section;

 Section 8(e) of the Act, referred to in section 8(b)(4)(A) above, provides, in part, as follows:

 'It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void: Provided, That nothing in this subsection shall apply to an agreement between a labor organization and an employer in the construction industry relating ...


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