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

filed: February 4, 1976.

HIRSCH, PETER W., REGIONAL DIRECTOR OF THE FOURTH REGION OF THE NATIONAL LABOR RELATIONS BOARD, FOR AND ON BEHALF OF THE NATIONAL LABOR RELATIONS BOARD
v.
BUILDING AND CONSTRUCTION TRADES COUNCIL OF PHILADELPHIA AND VICINITY, AFL-CIO, APPELLANT



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil Action No. 75-646/7).

Seitz, Chief Judge, Gibbons and Rosenn, Circuit Judges.

Author: Seitz

Opinion OF THE COURT

SEITZ, Chief Judge.

This is a consolidated appeal from two orders of the district court granting petitions brought by the Regional Director of the National Labor Relations Board (the "Board") for temporary injunctions against the Building and Construction Trades Council of Philadelphia and Vicinity (the "Trades Council") pursuant to § 10(l) of the National Labor Relations Act (the "NLRA"), 29 U.S.C. § 160(l). The injunctions were issued pending final disposition of the matters involved by the Board on the ground that the Regional Director had "reasonable cause to believe" that the Trades Council had violated § 8(b)(7)(C), 29 U.S.C. § 158(b)(7)(C), which prohibits "recognitional" and "organizational" picketing under certain circumstances and § 8(b)(4)(ii)(B), 29 U.S.C. § 158(b)(4)(ii)(B), one of the NLRA's "secondary boycott" provisions. In addition, the charging party in the § 8(b)(7)(C) action, Altemose Construction Co. ("Altemose"), seeks intervenor status in this Court.

A. THE FACTUAL BACKGROUND:*fn1

The Trades Council is a union composed of affiliated labor organizations in the building and construction industry in the Philadelphia area. For some time, it has attempted to secure a "sub-contractor's agreement" with Altemose, a non-union employer. This agreement would require Altemose to employ only unionized sub-contractors in its construction projects. To protest Altemose's continued refusal to sign such an agreement, the Trades Council began picketing Altemose's main office and construction job-sites on January 20, 1975. Throughout the course of the picketing, respondent's members displayed signs bearing the following legends:

NOTICE

Altemose Contractor Refuses to enter into a Sub-Contractor's Agreement with the Philadelphia, Pennsylvania Building & Construction Trades Council, AFL-CIO;

TEAMSTERS PICKET LINE PLEASE HONOR; and SLOW DOWN LOW WAGE AREA AHEAD

Although all of Altemose's operations were picketed, the events giving rise to the unfair labor practice charges against the Trades Council occurred, for the most part, in the vicinity of Altemose's Valley Forge Towers project, the largest project it had under construction.

1. The § 8(b)(7)(C) Charge :

The picket lines established by the Trades Council did not bring activities to a halt at any of the Altemose projects. However, they did disrupt the work in progress to a certain extent, at least at the Valley Forge Towers site. There, Ralph D. Williams, the Trades Council's business representative in charge of the picketing, appealed directly to deliverymen employed by Altemose's suppliers to honor the picket line. As a result of his appeals and the picket line itself, a number of scheduled deliveries were either never completed or delayed.

While the picketing was in progress, Thomas Magrann, the Trades Council's business manager, and J. Leon Altemose, Altemose's president, appeared together on a local Philadelphia radio show to debate the controversy between them. During the talk show, Magrann made a number of comments concerning the purpose of the Trades Council's picketing of the Altemose projects. For example, he stated that the Trades Council was attempting "to get Mr. Altemose, to you know, sign a Building Trades agreement". In addition, he expressed his desire to resolve the long dispute between Altemose and the Trades Council. In this regard, he indicated that he would gladly "sit down and negotiate something with Mr. Altemose". Magrann also stated that the Trades Council would accept Altemose's employees "into the union without no initiation fees and no test".

When the picketing persisted for more than thirty days and the Trades Council failed to petition for a representation election under § 9(c) of the NLRA, 29 U.S.C. § 159(c), during that period, Altemose filed a § 8(b)(7)(C) unfair labor practice charge against it with the Board. After investigation, the Regional Director determined that there was reasonable cause to believe that § 8(b)(7)(C) had been violated and he therefore petitioned the district court for a temporary injunction to restrain the allegedly illegal picketing.

2. The § 8(4)(ii)(B) Charge :

Strescon Industries, Inc. ("Strescon") was under contract with Altemose to supply the Valley Forge Towers project with precast, prestressed concrete planks of a unique design and length. Deliveries under this contract were scheduled on a two week cycle with approximately eighty to ninety deliveries to occur in any given two week period. The normal delivery procedure called for Strescon drivers to haul loaded tractor-trailers to the construction site, ...


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