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

530 F.2d 298, 91 L.R.R.M. (BNA) 2438
CourtCourt of Appeals for the Third Circuit
DecidedFebruary 4, 1976
DocketNos. 75-1586 and 75-1587
StatusPublished
Cited by7 cases

This text of 530 F.2d 298 (Hirsch v. Building & Construction Trades Council of Philadelphia & Vicinity) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hirsch v. Building & Construction Trades Council of Philadelphia & Vicinity, 530 F.2d 298, 91 L.R.R.M. (BNA) 2438 (3d Cir. 1976).

Opinion

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(f) of the National Labor Relations Act (the “NLRA”), 29 U.S.C. § 160(f). 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 “recogni-tional” 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) actions, Alternóse Construction Co. (“Alternóse”), seeks in-tervenor status in this Court.

A. THE FACTUAL BACKGROUND:1

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 Alternóse, a nonunion employer. This agreement would require Alternóse 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 Alte-[301]*301mose’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 Alternóse, 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 Alternóse 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 Alternóse 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, Alte-rnóse 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(b)(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, leave the trailers to be unloaded by Altemose employees, and return with any empty trailers from a previous delivery.

On January 24, 1975, four days after the picketing had ensued, fourteen Stres-con drivers were sent to the Valley Forge project to pick up approximately thirty empty trailers. However, upon arriving at the construction site, the drivers, all members of Teamsters Local 384, decided to honor the Trades Council’s picket line upon the request of Williams, its business representative. Since [302]*302it needed the trailers to fulfill commitments elsewhere, Strescon soon arranged with the Teamsters Local for its members to cross the picket line for the limited purpose of removing the empty trailers. However, the drivers continued to refuse to cross the picket line to make any of the scheduled deliveries. As a result, only one of the approximately ninety deliveries scheduled between January 20 and February 18 was completed.

Because of the refusal of its drivers to cross the Trades Council’s picket line, Strescon contracted with Raritan Motor Express (“Raritan”) to make its deliveries to Alternóse for it. Pursuant to this agreement, Raritan drivers began delivering concrete planks to the Valley Forge project on February 18. During that afternoon, Russell Dobson, a Rari-tan driver, was waved over to the roadside as he approached the construction site by Trades Council pickets, including Williams. Dobson was asked by Williams if he intended to cross the picket line. He responded affirmatively, stating that he had been out of work for six months and that he had to support his family. Williams warned him that if he “didn’t want to be out of a job another six months [he] shouldn’t deliver to the [Valley Forge] Towers jobsite”. Dobson, however, ignored this remark and completed his delivery.

Later that same afternoon, John Hogarth, Strescon’s operations manager, received a phone call from an individual who identified himself as “Mr. Ralph Williams of the Building & Trades Council”. The caller asked Hogarth if he had anything to do with the deliveries being made to the Valley Forge project. After Hogarth admitted that he did, the caller stated that Strescon had “double dealt” the Trades Council for it had understood that only empty trailers would be removed from the job-site.

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530 F.2d 298, 91 L.R.R.M. (BNA) 2438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hirsch-v-building-construction-trades-council-of-philadelphia-vicinity-ca3-1976.