TUTTLE, Circuit Judge.
This is a companion case to N. L. R. B. v. Local 450, International Union of Operating Engineers, AFL-CIO, 5 Cir., 275 F.2d 408. The Board and the respondent are here litigating with respect to somewhat similar activities of the same union on a different job site than that in the earlier case. The statement of the case by the Board, which respondent, with commendable candor, agrees is substantially correct, follows:
Briefly, the Board found that respondent, in violation of Section 8(b) (4) (D) of the Act, 29 U.S.C.A. § 158(b) (4) (D), induced and encouraged employees of Industrial to engage in a strike to force Industrial to assign certain work to members of respondent rather than to other Industrial employees. In this connection the Board found that respondent had neither a contractual claim to the work in question, nor a Board order or certification granting it representative rights with respect to the work tasks involved. The Board based its findings upon the following subsidiary facts.
About September 6, 1954, Industrial began painting oil tanks for Cities Service Oil Company. In performing this work, Industrial used four air compressors, all automatic except that they had
The day after the work for Cities Service began, Earl Ford, respondent's business representative, asked Isaac Vincent, Industrial's superintendent, to employ one member of respondent to operate each compressor. Vincent agreed to hire one employee to perform the starting and stopping operations on all four compressors. The next day, an operating engineer, Clifford Fleming, reported to do this work.
Fleming worked all that day, and until 4:30 p. m., the end of the regular 8-hour work day, on September 9. Industrial's other employees worked until 7 p. m. both days, were paid overtime, and the compressors were shut off by them. After Fleming complained to Ford that he was not getting overtime like the other men, Ford demanded that Industrial hire an additional man to operate the compressors and that Industrial pay Fleming overtime. Ford also asked Industrial to bank the compressors in pairs and hire a member of respondent for each pair. When Industrial refused these requests, respondent, on September 10, began picketing Industrial with signs reading "Local 450, Operating Engineers, in dispute with Industrial Painters and Sand Blasters." A few days later, Ford reiterated his demands that Industrial hire one workman for each compressor and pay Fleming overtime.
The picketing continued for about 3 weeks, and no work was performed at the Fauna site during this period.
The unfair labor practice charges filed in September 1954 alleged that respondent had violated Section 8(b) (4) (D), the "jurisdictional disputes" section of the statute. Pursuant to the statutory scheme for the handling of jurisdictional disputes, the Board in November 1954 and October 1955 held the hearing prescribed by Section 10(k) to "hear and determine the dispute" out of which the charge of a Section 8(b) (4) (D) violation arose.
The Board found, on the basis of the facts set forth, that Industrial's assignment of the work to its employees, who were not members of respondent, was not in contravention of an order or certification of the Board, and that respondent had no contract binding Industrial to assign the disputed work to its members. Under these circumstances the Board found that respondent was not lawfully entitled to force or require Industrial to assign the disputed work to its members rather than to other Industrial employees.
Accordingly, the Board directed respondent to notify the Regional Director within ten days whether they would comply with the Board's determination.
Respondent having refused to comply with the Board's decision, the General Counsel of the Board, on April 27, 1956, issued a complaint alleging a violation of Section 8(b) (4) (D) of the Act. Included in the evidence adduced at the ensuing unfair labor practice hearing were the official records of the prior Section 10(k) proceeding.
Upon the evidence thus adduced, the Board concluded, affirming the Trial Examiner, that respondent violated Section 8(b) (4) (D) by "inducing and encouraging the employees of Industrial Painters to engage in a strike or a concerted refusal * * * to perform services with an object of forcing or requiring Industrial Painters to assign the work on its air compressors to the Respondent's members rather than to Industrial Painters' own employees who are not members of that labor organization * * *."
The Board's order requires respondent to cease and desist from inducing and encouraging the employees of Industrial Painters to engage in a strike or other indicated conduct, where an object thereof is to force or require Industrial to assign particular work to
Here, as in the companion case, the principal contention by respondent is that the Section 10(k) hearing did not comply with the requirements of the statute in that the Board did not arbitrate the dispute and assign the work of starting and stopping the compressors to either the respondent or to Industrial's employees. For the reasons stated in that case we hold that this argument is not sound.
The further contention is made here that the strike was not a jurisdictional strike at all but was a strike to protest the refusal of the employer to give overtime work to Fleming to enable him to stay on the job two and a half hours longer to shut the motors off. We think this is a fact issue and that it has been resolved on a full record by the Board which said:
The fact that Industrial had voluntarily agreed to hire one member of respondent's union to perform this brief task does not change the fact that the strike was for the purpose of coercing Industrial to hire additional members of Local 450 to perform the duties that were still being done by other employees of Industrial. We think the language of the Fourth Circuit case, N. L. R. B. v. Local Union No. 9, Wood, Wire & Metal Lathers Union, 4 Cir., 255 F.2d 649, 652, is apposite:
Respondent next contends that the Board erred in not permitting the charge to be dropped at the voluntary request of Industrial, the charging party. The General Counsel of the Board opposed the dismissal by the Trial Examiner, and the Board approved the action of the Examiner in denying the motion to dismiss. The Board said:
We cannot hold that the Board erred in not giving effect to the private settlement in a matter in which it was within the province of the Board to find that the public interest was opposed to such disposition of the proceeding.
Finally, respondent complains about the scope of the order of the Board asserting that it deprives respondent of sufficient knowledge of the acts which are prohibited. The Board made the following finding in this respect:
Although the Board in its conclusion used the word "enjoin," it effectuated its conclusion in its cease and desist order. Of course, only the Court has the power to issue an injunction. We recognize that in the use of this word the Board was not speaking in a technical sense. It enlarged the order to cause respondent "to cease and desist from inducing and encouraging the employees of Industrial Painters or any other employer to engage in a strike or a concerted refusal, etc."
The petition for enforcement of the order is granted.
CAMERON, Circuit Judge (concurring in part and in part dissenting).
I concur in the enforcement of the Board's order insofar as it relates to the issues raised by the pleadings and to the parties before the Board and before us; and in the opinion of the majority, except to the extent that it approves the finding of the Board justifying the application of the cease and desist order to "any other employers" with whom Respondent might deal. Specifically, I dissent from these findings of the Board now approved by the majority opinion which are italicized in the following quotation:
I would first question the use of the word "enjoin" in the findings of the Labor Board. The word "enjoin" has historically a definite and well understood meaning in legal parlance.
The error in the majority opinion, as I see it, runs deeper. The proceedings before the Board were set in motion
The majority opinion approves the findings and the entry of this "Mother Hubbard" order upon which this Court will enter a judgment whose violation will be punishable as a contempt of court. The injunctive power is an important component of the judicial process, but it is a delicate power, one which should be exercised sparingly and with caution.
As based upon the facts in this record, I think the majority opinion goes beyond the issues raised by the pleadings, approves an order whose impact would extend to persons not before the Court
It is the genius of this government that every citizen, individual, labor union or corporation shall have unlimited access to any and every tribunal and as often as may be thought proper to assert his contentions as to what under the law are his just rights; and to make every effort to get the law, whether made by legislature or courts, changed to conform to his ideas of what is just and proper. I would not enforce the portion of the order here discussed.
"1. Cease and desist from inducing and encouraging the employees of Industrial Painters or any other employer to engage in a strike or a concerted refusal in the course of their employment to perform services, where an object thereof is to force or require Industrial Painters or any other employer to assign its air compressor work to Respondent's members rather than to its own employees who are not members of that labor organization, unless and until Respondent is certified by the Board as the bargaining representative of the employees performing such work."
The principles have been applied in cases arising under the Act before us. National Labor Relations Board v. Cheney Cal. Lumber Co., 1946, 327 U.S. 385, 66 S.Ct. 553, 90 L.Ed. 739; May Department Stores v. National Labor Relations Board, 1945, 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145; National Labor Relations Board v. Express Publishing Co., 1941, 312 U.S. 426, 61 S.Ct. 693, 85 L.Ed. 930. National Labor Relations Board v. Dallas General Drivers, 5 Cir., 1956, 228 F.2d 702, Truck Drivers and Helpers Local Union No. 728 v. National Labor Relations Board, 5 Cir., 1959, 265 F.2d 439, 444; and National Labor Relations Board v. Local 926 International Union of Operating Engineers, Etc., 5 Cir., 1959, 267 F.2d 418.
The majority opinion calls attention to the fact that the order here approved is in all respects similar to those made in two other cases this day decided. The facts of this case and the contentions of Respondent, in my opinion, present a quite different proposition from the others. In addition to what has been said above, it is important to note that, in this case, one of Respondent's members was employed to operate the compressors and the controversy centered around overtime claimed in his behalf and Respondent's efforts to increase the number of its members to be assigned to the work. I think the position taken by the Respondent with respect to the portion of the Board's order above discussed makes a different case and I do not think what I have said above is in conflict with the decisions in the other two cases.