CALEB M. WRIGHT, Chief Judge.
This case arises on a petition by the Regional Director of the Fifth Region of the National Labor Relations Board for injunctive relief under § 10(l) of the National Labor Relations Act, as amended.
Although there is little dispute between the parties as to the material facts, the importance of the legal questions involved warrants an extended discussion of the factual background of this case.
The charging party, E. I. du Pont de Nemours and Company (Du Pont), is engaged in the manufacture of chemicals and related products. The present dispute concerns a program of expansion undertaken by Du Pont at its Seaford, Delaware, Nylon Plant. The expansion consists of two phases, one of which involves modernization of existing facilities and another which concerns construction of a new plant.
Du Pont has no fixed policy in determining who will perform particular tasks in construction or expansion projects such as this. The work might be performed by permanent employees on the Du Pont payroll, it might be assigned to the construction division of the company which could hire other employees directly, or it might be sub-contracted. The key factors in the determination in each case are economic, in the broadest sense of the term.
There are approximately 6,300 man days of sheet metal work involved in the Seaford expansion project.
The evidence further shows Sweeney, respondent Local 59's Business Agent, knew for some two years that sheet metal work was being performed at Seaford by employees who were not members of his organization but made no protest.
Although respondent desires the Seaford sheet metal work, its members will not work for Du Pont directly, for as a matter of policy, Local 59, which has not been certified by the NLRB as the representative of any of Du Pont's employees,
The dispute in this case results from the provisions of Local 59's collective agreement with the sheet metal contractors. Because respondent's members live in the Wilmington area, the agreement provides work in that area will be performed with little or no travel pay. Work in the Seaford area, however, must be compensated not only by the usual wage but also by $10 per day travel
For this reason, negotiations between Local 59 and certain Du Pont officials were undertaken on Sweeney's initiative.
Local 59 and Du Pont failed to agree on this issue. On May 3, 1961, Local 59 began to picket the site of Du Pont's Seaford operations.
On May 10, Du Pont filed a charge with the NLRB alleging that the aforesaid conduct of Local 59 was in violation of § 8(b) (4) (i) and (ii) (D). On May 22, the Regional Director filed the petition presently before the Court.
There is no evidence in the record upon which this Court can base a finding that Du Pont's motivation for not assigning the sheet metal work to Local 59 was other than economic. All parties are in agreement that no other labor organization, trade, craft, or class of employees has made a claim for this work or has threatened to take retaliatory action against Du Pont should all or some of the sheet metal work at Seaford be subcontracted to a contractor in signed relations with Local 59. Indeed, it appears from the record that at least some of those presently doing this work have cooperated with respondent against Du Pont by refusing to cross Local 59's picket line.
That section reads as follows:
The language of this section is extremely broad, even though Congress continually referred to it as a ban on jurisdictional disputes in which rival groups of employees use economic coercion against each other with the employer trapped in the middle.
But § 8(b) (4) (D) does not stand alone in the statutory scheme, for in § 10(k)
It should be noted first that § 10(k) comes into play "whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of section 8(b) * * *." (Emphasis supplied.) On the face of the statute, therefore, it appears that § 10(k) is an integral and indispensable part of the congressional policy expressed in § 8(b) (4) (D) and that both sections must be interpreted as
But the central problem here is that although these provisions must be construed in harmony, they have wholly conflicting implications and seem even totally unrelated in some respects. First, the provisions of § 10(k) are keyed to the word "dispute" which is used five times in that section. By itself, this word indicates that an active controversy between two or more parties is to be the subject of the § 10(k) hearing. Section 8(b) (4) (D), on the other hand, makes no such reference. In view of the congressional preoccupation with jurisdictional disputes in the passage of these sections, however, a fair reading of § 10 (k) would seem to indicate that the "dispute" to be "determined" is one between rival groups of employees over which is entitled to "particular work". The language of § 10(k) also provides for the dismissal of unfair labor practice charges if, within 10 days after receiving notice of the charge, the "parties" make a "voluntary adjustment, of the dispute." This would seem to imply even more clearly that the rival groups of employees must assert competing claims for the same work and there must be in existence at the time of the filing of the § 8(b) (4) (D) charge a present and active controversy between these groups. If no group resists or opposes another's claim to particular work, there is no "dispute" to be voluntarily adjusted, unless it be the very active dispute between the group claiming the work and the resisting employer. But neither petitioner nor the charging party contends § 10(k) authorizes substantive Board determinations of disputes between unions and employers.
Section 8(b) (4) (D) and § 10(k), therefore, seem wholly inconsistent. Section 8(b) (4) (D) appears on its face to be a broad grant of power over work assignments to employers. Section 10 (k) ostensibly provides for compulsory NLRB determination of jurisdictional disputes between competing groups of employees and unfair labor practice sanctions only after voluntary means of adjustment have failed. But this interpretation of § 10(k) would necessarily lead to the conclusion that § 8(b) (4) (D) is far narrower than it appears, for it purports to proscribe much conduct not involving a "dispute" cognizable under § 10(k). To give § 8(b) (4) (D) its literal scope would, on the other hand, necessarily disregard the apparent meaning of § 10(k).
The NLRB has, since the passage of the Act, construed § 8(b) (4) (D) to mean "that an employer is free to make work assignments without being subject to strike pressure by a labor organization seeking the work for its members. * * *" Local 472, International Laborers' Union, 123 N.L.R.B. 1776, 1781 (1959). This literal application of § 8(b) (4) (D) necessarily resulted in a substantive interpretation of § 10(k) not in accord with its apparent meaning. Because the Board read § 8(b) (4) (D) to be a broad grant of prerogatives to employers, the § 10(k) hearing was treated simply as a procedure designed to uphold these rights. The Board would determine merely whether the picketing union was entitled to the work under a Board order, certification, or a collective agreement
Because unfair labor practice sanctions under § 8(b) (4) (D) are not available unless the Board has made a valid determination under § 10(k) unfavorable to the accused union, the legal challenge to Board dogma derived from the literal language of § 8(b) (4) (D) was necessarily directed against its perfunctory interpretation of § 10(k). Three Courts of Appeals rejected the Board's reading of that section
The Radio and Television Engineers case involved a dispute between two unions over which was entitled to particular work. The employer assigned it to one, and the other struck, the employer filing a § 8(b) (4) (D) charge against the latter with the NLRB. The Board, finding in a § 10(k) proceeding that the striking union was not entitled to the work under a Board order or certification or a collective agreement with the employer, sustained the charge. Enforcement of the Board order was denied by the Second Circuit, 272 F.2d 713, the Supreme Court affirming.
The Supreme Court commented first that if § 8(b) (4) (D) "stood alone", the respondent union's conduct would be sufficient to support the charge.
As to the meaning of the word "dispute" in § 10(k), it stated:
If, then, § 10(k) establishes a procedure under which the NLRB must decide on its merits a dispute between two groups of employees and which is mandatory in all § 8(b) (4) (D) cases, § 8(b) (4) (D) can hardly be said to proscribe conduct which, as here, does not involve such a dispute.
Moreover, the Supreme Court noted:
Petitioner would have the Court ignore this policy of § 10(k), however, for his theory apparently is that no agreement between the groups of employees involved can stay the operation of § 8(b) (4) (D) so long as the employer does not agree.
Petitioner's theory would lead to yet another dilemma. Du Pont has hired non-members of Local 59 principally because of Local 59's demand for travel pay.
There are two things wrong with this theory. First, if the NLRB determines Local 59 should have the work, then the only dispute now in existence will still be present even though the "dispute" was supposed to be "determined" in the § 10 (k) proceeding. The disruption of commerce will continue unabated. Section 10(k), in that situation, settles nothing. Obviously, § 10(k) is not meaningful unless designed to come to the employer's rescue only when he is caught between competing forces and is "between the devil and the deep blue."
The second defect in petitioner's theory is that it does not comply with the Supreme Court's ruling in the Radio and Television Engineers case. The Board explicitly argued there that the § 10(k) determination was not intended to be compulsory. Mr. Justice Black, answering for a unanimous Court, said, "We find this argument unpersuasive, to say the very least."
This determination is clearly in line with the policy of § 10(k). So long as the employer is free to ignore the § 10(k) determination, rival groups of employees will have great incentive to discover other and more subtle forms of pressure to exert upon him in order to persuade him to change his views. The jurisdictional dispute, then, will not have been terminated or settled in any way but merely channelled into other streams of coercive action. The Supreme Court, in rejecting the contention now pressed before this Court, noted, "[T]he rival unions, short of striking, would still be free to adopt other forms of pressure upon the employer."
If § 10(k) applies to situations not involving disputes between rival
Petitioner cites International Longshoremen's and Warehousemen's Union v. Juneau Spruce Corp., 1952, 342 U.S. 237, 72 S.Ct. 235, 240, 96 L.Ed. 275, as controlling here.
The same proposition is applicable to the Senate. The original measure in the Senate, S. 1126, contained language similar to the present § 8(b) (4) (D) except for the omission of the words "a particular trade, craft, or class."
Petitioner concedes the original bills were intended only to reach "classical" jurisdictional disputes but contends the addition of the words "a particular trade, craft or class" broadened this purpose.
It should be noted at the outset that the House bill always contained the words "a particular trade, craft, or class", and yet everyone believed it applied only to "classical" jurisdictional disputes. Secondly, the portion of § 8(b) (4) (D) which lends itself to a broad interpretation is "forcing or requiring any employer to assign particular work" rather than the words "particular trade, craft, or class."
Moreover, Senator Taft, in the statement above, does not say what petitioner seems to think he is saying.
Petitioner argues, however, that this additional language must mean more, for it is unrealistic to think that unorganized groups would ever resist hiring demands by a union made to their employer.
A further reason for denying the petition is apparent. Section 13 of the Act, 29 U.S.C.A. § 163 provides in substance that the Taft-Hartley Act shall not be taken as restricting or expanding either the right to strike or the limitations on that right existing when the Act was passed, unless "specifically provided for" in the Act itself. The picketing here was not proscribed prior to 1947.
Whether the conduct of Local 59 here violates provisions of the Act other than § 8(b) (4) (D) is not an issue before the Court in this proceeding, and nothing in this opinion should be construed as an indication that the conduct is either protected or prohibited by other provisions.
The NLRB, as well as this Court, is bound by decisions of the United States Supreme Court. Radio and Television Engineers stands for the proposition that effect should be given to the plain language and positive history of § 10(k). This cannot be done without tempering the broad proscriptions of § 8(b) (4) (D).
If there is no dispute between rival groups of employees, there is nothing for the Board to "determine" under § 10(k). Absent such a dispute, the voluntary adjustment provisions are rendered meaningless. Moreover, for all that appears in this record, some of the unionized workers who were doing the sheet metal work have cooperated with respondent in refusing to cross the picket line, and their union does not even care to be a party to the § 10(k) proceeding. The only dispute is between Du Pont and Local 59. Picketing in such a situation is not proscribed by § 8(b) (4) (D) because it does not involve a dispute between rival groups of employees over particular work.
This Court is aware that its function in this proceeding is not to resolve conflicts in testimony or to make an ultimate determination as to whether
That the judicial function is to be exercised in § 10(l) cases appears plainly enough on the face of that section, for the respondent is given an absolute right to present oral testimony on his behalf. That function, however, is limited to the extent that appropriate relief will issue upon a showing by petitioner of credible evidence constituting a prima facie case. Alpert v. Truck Drivers, Warehousemen and Helpers Local No. 340, D.C.D.Me. 1958, 161 F.Supp. 86. Petitioner must also present a legal theory or theories based upon appropriate provisions of the Act to support his finding. Douds v. Metropolitan Federation of Architects, Engineers, Chemists and Technicians, Local 231, D.C.S.D.N.Y.1948, 75 F.Supp. 672. The court need not be fully convinced of its worthiness but need find only that it is reasonable and might be upheld by the NLRB and enforced by appellate tribunals.
In evaluating petitioner's legal theories a court has several guideposts. Among these are the language of the statute, relevant judicial interpretations, relevant NLRB decisions, and the legislative history of the Act. In the present case, there is a standoff on the language of the Act, for while § 8(b) (4) (D) justifies the relief requested, § 10(k), an integral part of the statutory scheme, looks in the other direction. Were this the end of the Court's responsibility, the bare bone of § 8(b) (4) (D) would be enough.
But, as explained at length in the body of this opinion, the decision in Radio and Television Engineers is a new and critical factor, for neither the Board nor this Court can afford to be lax in complying with precedents from the highest court. Petitioner's legal theories must be within the residuum of Board discretion left by the holding and reasoning of the Radio and Television Engineers decision. To be sure, a court in a § 10(l) proceeding cannot lean too heavily upon dicta incidental to the main issues determined in a Supreme Court decision. On the other hand, it cannot ignore the reasoning and theory of such an opinion, for it cannot be presumed, especially when dealing with a recent decision, that the high court wrote at length on a subject but intended that lower courts read only the words "affirmed" or "reversed". Opinions are written because one set of facts is rarely identical to another, and unless decisions are explained and the reasoning of appellate tribunals made clear, there can be no system of precedents. Petitioner's legal theories in this case are inconsistent with both the holding and reasoning of the Radio and Television Engineers decision. As such, they do not justify § 10(l) relief.
As for relevant post-Radio and Television Engineers NLRB decisions, there apparently are none. This, of course, puts petitioner and this Court in a difficult position, but it cannot make petitioner's case stronger. Petitioner has made remarks to the effect that uncertainty in the law justifies § 10(l) relief.
Nor are petitioner's theories supported by the legislative history. Indeed, they are precluded by it.
Tested by relevant standards, therefore, petitioner's legal theories cannot support a finding of reasonable cause by this Court. Petitioner, moreover, must present his theories, for the limitation upon this Court's function in § 10(l) proceedings is based not only upon a congressionally determined policy of leaving the ultimate decision to the NLRB but also upon petitioner's own experience, expertise, and familiarity with labor problems. As this Court remarked during these proceedings, it would indeed be ironic on the one hand to pay tribute to petitioner's expertise and on the other to enjoin picketing on theories he has not advanced.
One further word need be said. It is not the holding of this Court that petitioner must produce evidence in a § 10(l) proceeding indicating the NLRB will determine in the § 10(k) hearing that Local 59 is not entitled to the work. The holding is simply that these facts do not present a "dispute" cognizable by the Board under § 10(k), and § 8(b) (4) (D) is thereby rendered inoperative.
Respondent's motion will be granted, and the petition dismissed.
The foregoing opinion is adopted as the Court's findings of fact and conclusions of law pursuant to F.R.Civ.P. 52 (a), 28 U.S.C.A.
Let an appropriate order in conformity herewith be submitted.
FootNotes
Petitioner's theories have demonstrated an unwillingness to depart from prior Board law even where necessary to comply with Radio and Television Engineers. The Board has held in the past that the employer must be a party to the "voluntary adjustment". Local 48, Sheet Metal Workers' International Association, 120 N.L.R.B. 221 (1958). Because the Board has previously refused to make an "assignment" in the § 10(k) hearing, the employer was not bound. See Local 472, International Laborers' Union, 123 N.L.R.B. 1776, 1782 n. 15 (1959).
By saying the § 10(k) determination is "compulsory" upon the employer, this Court does not intend to indicate the Board order must run directly against him. There is no need to determine that question here, for such an order, because it will be compulsory upon all groups of employees, will effectively "bind" the employer simply by restricting the alternatives open to him.
It might also reach disputes between unions and employers over sub-contracting, strike replacements, and the like. Even before the Radio and Television Engineers decision, the NLRB itself realized such a broad interpretation of § 8 (b) (4) (D) raised many problems. See American Wire Weavers' Protective Association, 120 N.L.R.B. 977 (1958).
Another factor should be noted. In Juneau Spruce, the Court emphasized that §§ 8(b) (4) (D), 10(k) and 303 presented separate remedies and procedures. It may be of no little significance, therefore, that in Radio and Television Engineers the Court said there need not be "substantive symmetry" (emphasis supplied), between the two schemes.
"Mr. Serot: I see that is a question. Our only contention here is basically that until that contention is decided through the proper channels, there should be no strike." Transcript of oral argument, June 8, 1961, p. 27.
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