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January 10, 1990

CARPENTERS LOCAL UNION NO. 1578, et al., Defendants

The opinion of the court was delivered by: BROTMAN

 Presently before the court are the "stipulations of dismissal" between plaintiffs and certain defendants. The stipulations are basically contracts which provide for compliance with other contracts for the delivery of construction materials and the disclosure of any efforts to interfere with such deliveries, allow for continuing jurisdiction, and purport to permit the court to enter "such orders or directions, including injunctions" to enforce their terms. Plaintiffs characterize the stipulations as orders of dismissal pursuant to Fed.R.Civ.P. 41(a)(2). The union defendants assert that the stipulations are injunctions in the context of a labor dispute, and therefore beyond the power of this court because of the restrictions on the subject matter jurisdiction of a federal court imposed by the Norris-LaGuardia Act. The issue raised is whether court approval of voluntary dismissals pursuant to Fed.R.Civ.P. 41(a)(2), where the dismissals are predicated on settlement agreements that provide for continuing jurisdiction to enforce the agreements with injunctive relief, violates the Norris-LaGuardia Act's prohibition against injunctions in the context of labor dispute.

 Plaintiffs Johnston Development Group, Inc. and Glassboro Development Co., Inc., are in the process of developing a residential subdivision known as "Hidden Creek." Plaintiffs employ contractors who in turn employ, for the most part, nonunion subcontractors.

 In the fall of 1988, Carpenters Local 1578 began to picket the site at Hidden Creek. Plaintiffs filed unfair labor practice charges with the National Labor Relations Board (hereinafter the "NLRB" or "Board"). Plaintiffs claimed that the unions were engaging in illegal secondary labor activity in violation of sections 8(b)(4)(i) and 8(b)(4)(ii)(B) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4)(i) and (ii)(B), as amended. The NLRB investigated plaintiffs' charges, and determined that the unions were engaging in unfair labor practices. The NLRB therefore filed an injunction action with this court pursuant to section 10(l) of the National Labor Relations Act, 29 U.S.C. § 160(l). The NLRB and the unions thereafter reached a settlement under which the union agreed to cease picketing the Hidden Creek development site.

 On February 8, 1989, plaintiffs filed the complaint in the instant action, alleging violations of the Racketeer Influenced and Corrupt Organizations Act (hereinafter "RICO"), 18 U.S.C. § 1962, the Sherman Act, 15 U.S.C. § 1, section 303 of the Labor Management Relations Act, 29 U.S.C. § 187, and various pendent state tort claims. The complaint alleges that the unions' conduct exceeds mere picketing and includes extortion, violence, and threats of violence. The relief sought includes, in addition to monetary damages, a preliminary and permanent injunction.

 Thereafter, members of the union, who were dressed in white decontamination suits with gas masks, began to distribute handbills at the entrance to development. The Hidden Creek site is located in Glassboro, New Jersey, less than one mile from the Lipari Landfill, which was, at the time, ranked first on the United States Environmental Protection Agency's Superfund cleanup list. The handbills had photographs and drawings in addition to hyperbolic, but not clearly false, language, and warned prospective home buyers of the dangers of living so close to a landfill. Except for a short statement that they were paid for by Carpenters Local 1578, the handbills made no reference the underlying labor dispute.

 In response, plaintiffs amended the complaint to include the handbilling as an example of defendants' illegal activity. Plaintiffs also filed another unfair labor practice charge with the NLRB. In this instance, however, the NLRB declined to issue a complaint because it found, on the basis of Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council and NLRB, 485 U.S. 568, 99 L. Ed. 2d 645, 108 S. Ct. 1392 (1988), in substance, that the peaceful handbilling was not prohibited by sections 8(b)(4)(i) and 8(b)(4)(ii) of the National Labor Relations Act.

 Plaintiffs thereafter sought a preliminary injunction prohibiting the handbilling. This court refused to issue such an injunction because it found that the handbilling grew out of a labor dispute, and therefore the Norris-LaGuardia Act deprived the court of subject matter jurisdiction to issue an injunction. Johnston Development Group, Inc. v. Carpenters Local Union No. 1578, 712 F. Supp. 1174 (D.N.J. 1989).

 After several conferences with this court, and after limited discovery failed to uncover the quantum of evidence this court felt was necessary to refer the matter to the United States Attorney, *fn1" plaintiffs presented the court with the first round of proposed consent decrees. Under the terms of those decrees, plaintiffs and various non-union defendants *fn2" were to be dismissed as defendants *fn3" from the case, provided they agreed not to refuse to deliver construction goods to the development site because of either an agreement with or pressure from the unions, and provided further that they disclose to plaintiffs any attempts by the unions or their "agents, members, employees or anyone acting in concert" with them to prevent the delivery of construction goods. Finally, the consent decrees provided for continuing jurisdiction and were cast in terms of a permanent injunction.

 The unions strongly objected to the entry of the consent decrees on several grounds. First, the unions argued that the consent decrees were not in the public interest. The unions asserted that the decrees were the product of frivolous litigation that had no factual basis. The suit against the contractors and suppliers, the unions argued, was extortion by litigation; the non-union defendants are relatively small companies which cannot afford to pay the fees generated by the complex litigation of the type involved in this case. Thus, the unions argued, plaintiffs were able to force the concrete suppliers to agree to the consent decrees, the terms of which would otherwise have been unacceptable. The unions further argued that the consent decrees were impermissible restraints of trade in violation of the Sherman Act, and were in essence vertical restrains of trade in that the home developers would control their source of concrete supplies.

 The second, and more serious, challenge to the consent decrees was jurisdictional. The unions claimed that the decrees adjudicated rights in the context of a labor dispute in violation of the Clayton Act. *fn4" The unions also characterized the decrees as regulations of conduct within the exclusive jurisdiction of the NLRB. The unions finally argued that the consent decrees were unconstitutional abridgements of free speech in that they would have a chilling effect on the lawful conduct of members of the unions.

 Plaintiffs countered that the consent decrees were merely private agreements that had no impact on the protected conduct of the unions.

 The court expressed concern that the consent decrees might be, in effect, injunctions, in that plaintiffs were unable to articulate why the consent decrees did not contemplate injunctions in the context of a labor dispute when that would, in all likelihood, be the relief sought in the event that the parties to the decrees did not comply with their terms. The court, however, never ruled on the consent decrees.

 Thereafter, plaintiffs submitted the instant stipulations of dismissal, which superceded the consent decrees. *fn5" Plaintiffs assert the instant stipulations are voluntary dismissals pursuant to Fed. R. Civ. P. 41(a)(2) predicated on private settlement agreements. The unions claim that the stipulations are, in fact, the consent decrees with different titles. The unions stress the similarities between the provisions of the stipulations and the decrees submitted in August, *fn6" and argue that the function and purpose of the decrees is to enjoin certain parties conduct in the context of a labor dispute.


 It is important to stress from the outset what this set of motions does not involve. Resolution of the instant motions does not involve injunctive relief under RICO, and makes no provision for private equitable relief in any event. Curley v. Cumberland Farms, Inc., 728 F. Supp. 1123, (D.N.J. 1989). Although injunctive relief is available to private parties under Clayton Act, the court need not rely on that authority. The only question now before the court is ...

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