Dawidoff ex rel. National Labor Relations Board v. Minneapolis Building & Construction Trades Council

550 F.2d 407
CourtCourt of Appeals for the Eighth Circuit
DecidedMarch 1, 1977
DocketNo. 76-1891
StatusPublished
Cited by1 cases

This text of 550 F.2d 407 (Dawidoff ex rel. National Labor Relations Board v. Minneapolis Building & Construction Trades Council) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dawidoff ex rel. National Labor Relations Board v. Minneapolis Building & Construction Trades Council, 550 F.2d 407 (8th Cir. 1977).

Opinion

ROSS, Circuit Judge.

In this appeal the Minneapolis Building and Construction Trades Council, AFL-CIO and Local 34, Sheetmetal Workers International Association, AFL-CIO, challenge the issuance of an injunction which has halted the picketing of Erasen Plumbing and Heating, Inc., a subcontractor at a school construction site in Howard Lake, Minnesota.

The district court granted the injunction pursuant to § 10(7) of the National Labor Relations Act as amended, 61 Stat. 149; 73 Stat. 544; 29 U.S.C.A. § 160(7), with the understanding that the National Labor Relations Board, appellant herein, would appeal within a ten day period. The district court further provided that the injunction order would remain in effect until a decision in this court is rendered. We affirm in part, reverse in part, and remand to the district court for further action consistent with this opinion.

The § 10(7) injunction process begins when an NLRB regional officer or attorney, upon finding that reasonable cause that certain enumerated unfair labor practices exist, petitions the district court for appropriate injunctive relief. In this particular ease, the officer’s petition to the district court alleged that he had reasonable cause to believe that § 8(b)(7)(A) and (C) of the Act, 29 U.S.C.A. § 158(b)(7)(A) and (C) had been violated. Briefly, this statutory section makes it an unfair labor practice for a currently uncertified union to picket or threaten to picket any employer where another union is already recognized, where an appropriate petition has not been filed by the picketing union within 30 days, and where the object of the picketing in either case is forcing or requiring an employer or employees to recognize or bargain with or select such labor organization as the representative of the employees. See Samoff v. Building & Construction Trades Council, 475 F.2d 203, 205 (3d Cir. 1973), vacated as moot, 414 U.S. 808, 94 S.Ct. 151, 38 L.Ed.2d 44 (1973). In citing subparagraphs (A) and (C) violations the regional officer has alleged that during the pertinent time period Erasen employees had recognized another labor organization, the Christian Labor Association, as its representative; that a question concerning representation could not appropriately be raised under § 9(c) of the Act; that no charge under § 8(a)(2) has been filed against Erasen; and that the picketing had been conducted for more than 30 days without the filing of a petition for an election pursuant to § 9(c) of the Act. It is also asserted that the picketing Union had the proscribed object of forcing the recognition and representation of its organization and that the picketing was in furtherance of the illegal object.

The facts are relatively simple. Erasen is a mechanical subcontractor at the Howard Lake School construction job, and it is undisputed by the Unions that Erasen employees are currently represented by the Christian Labor Association under a 1976-78 contract; previously there were represented by the C.L.A. in a 1974-76 contract. The Sheetmetal Workers Local No. 34 is an AFL-CIO labor organization associated with the Minneapolis Building and Construction Trades Council, a group of AFL-CIO building trades affiliates. [Hereinafter Unions.] It was stipulated by the parties at trial that the wages and other monetary and economic benefits paid by Erasen Plumbing and Heating, Inc. were lower for the same kind of work than the wages and benefits provided for by the contracts of the local AFL-CIO unions. Beginning on August 5, 1976 the Union placed its banner near the gate used by Erasen employees at the school job site. The banner protested the Erasen work performed at substandard wages and benefits. On September 27, 1976, the Regional Director petitioned the district court for in-junctive relief and on October 11, 1976, an injunction issued and picketing ceased. Testimony from Mr. Adolf son of the general contracting firm and Mr. Gustafson, business manager of the Minneapolis Building and Construction Trades Council indicated that the effect of the bannering had been to cause a number of employees to refuse to work and the job to fall behind schedule.

[410]*410The focus of the district court’s inquiry necessarily concerned the object of the Union protest at the school site. The Unions contended that the bannering was for the sole purpose of forcing Krasen to pay the prevailing area wage;1 the Board contends that the Unions had statutorily proscribed recognitional and organizational objectives. ' The Board’s proffered evidence of an illegal object was primarily supplied by two Kra-sen employees who testified that on Jüly 27, 1976, just before the bannering began on August 5, they were approached by two men and asked to organize the shop for the AFL-CIO. Specifically, it is alleged by employee Donald'J. Clemmer that on that day he was approached by William F. (Tiny) Johanneck, a member of Local 34, and asked to organize Krasen as an AFL-CIO, shop; the substance of this conversation was corroborated by Mark Jensen, Clem-mer’s apprentice who allegedly overheard the discussion. Clemmer testified that he told Johanneck he had previously been kicked out of Local 34, and Johanneck purportedly replied that if Clemmer organized the shop he would automatically come into the Union. This version of the facts is sharply disputed by Johanneck and Leonard C. Bienias, field representative for the Trades Council, who say they were on the Howard Lake site that day only to check building trades cards of employees and to determine whether the employers were paying area standard wages. Johanneck and Bienias further aver that Clemmer initiated the conversation with Johanneck; that Mark Jensen was not present during the conversation; that Johanneck did not ask anyone to sign up with Local 34; and finally that Clemmer raised the issue of his having been dismissed from the Union. Obviously the testimony conflicts and the facts are in dispute.

The parties and the court below have correctly cited Wilson v. Milk Drivers & Dairy Employees Local 471, 491 F.2d 200 (8th Cir. 1974) as the authority for this case. In Wilson this court gave meaning to the “reasonable cause” standard of the statute and defined the role of the district court in assessing a request for injunctive relief under that standard:

In proceedings under section 10(7) of the Act the district court is not called upon to decide whether, in fact, a violation has occurred. The determination of this question is reserved exclusively for the Board with review by the Court of Appeals under section 10(e) and (f) of the Act. The inquiry of the district court is limited to a determination of whether the Board had reasonable cause to believe the Act was being violated as charged, and if it so concludes, it must grant such relief as it deems just and proper. Local Joint Board Hotel & Restaurant Employees etc. v. Sperry (8th Cir., 1963), 323 F.2d 75, 77; Schauffler v. Local 1291, International Longshoremen’s Association (3d Cir., 1961), 292 F.2d 182, 187-188.
The statutory standard of “reasonable cause” is satisfied if there is a showing of factual issues which must be resolved by the Board. Section 10(7) commands the courts to disregard their traditional reluctance to issue preliminary injunctions when there is a substantial conflict in the evidence.

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