Potter v. Houston Gulf Coast Building Trades Council

363 F. Supp. 1, 83 L.R.R.M. (BNA) 3035, 1972 U.S. Dist. LEXIS 10853
CourtDistrict Court, S.D. Texas
DecidedDecember 5, 1972
DocketCiv. A. No. 72-H-1571
StatusPublished
Cited by5 cases

This text of 363 F. Supp. 1 (Potter v. Houston Gulf Coast Building Trades Council) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Potter v. Houston Gulf Coast Building Trades Council, 363 F. Supp. 1, 83 L.R.R.M. (BNA) 3035, 1972 U.S. Dist. LEXIS 10853 (S.D. Tex. 1972).

Opinion

MEMORANDUM AND ORDER

CARL O. BUE, Jr., District Judge.

Before this Court is a petition by the Regional Director of the National Labor Relations Board (N.L.R.B.) for a temporary injunction against respondents pending final determination of alleged unfair labor practice charges. This Court granted a temporary restraining order and, upon submission of stipulated facts (appended to this opinion) and a conference with counsel, is prepared to rule upon the petition for temporary injunction.

The National Labor Relations Act, as amended, provides that whenever it is charged that unfair labor practices have been committed, the N.L.R.B. shall conduct a preliminary investigation of such charge. If the officer or regional attorney to whom it was referred has reasonable cause to believe, following investigation, that such charge is true, he shall seek appropriate injunctive relief pending the final adjudication of the Board. 29 U.S.C. § 160(Z). The cases clearly indicate that it is not the function of the District Court to determine whether, in fact, an unfair labor practice has been engaged in, but only to ascertain if reasonable cause exists to believe such violation occurred. This injunctive relief is interlocutory to a final disposition by the Board of the unfair labor practice charge. The ultimate determination on the merits is reserved exclusively for the Board, subject to judicial review by the Court of Appeals. The evidence need not establish a violation. It is sufficient if the evidence together with all the reasonable inferences that might be drawn therefrom supports a conclusion that there is reasonable cause to believe that a violation had occurred. For a typical case, see Madden v. International Hod Carriers Union, 277 F.2d 688 (7th Cir. 1960), cert. denied, 364 U.S. 863, 81 S.Ct. 105, 5 L.Ed.2d 86.

The parties involved in this litigation include the Regional Director of the N. L.R.B., the employer corporations herein referred to as Boley and Bullen, and numerous unions engaged in work at one or more of four jobsites. In capsule form, the respondents are opposed to the employment by Boley and Bullen of non-union labor who receive “substandard” wages. Following a refusal on November 1, 1972, by Bullen to agree to demands of the Houston Building and Construction Trades Council (hereinafter referred to as Houston Trades Council), which is composed of most of the respondent unions, picketing at four job-sites commenced. Allegedly, certain unfair labor practices in the form of secondary, “coercive” activity were, undertaken by various unions and union officials as part of a campaign by the Houston Trades Council to stop all work at the jobsites until Boley and Bullen complied with union demands. All, or vir[4]*4tually all, work on the jobsites did cease as employees, union and non-union alike, refused to work or failed to report for work. The stipulated facts are not recited here, inasmuch as they are set forth in full as Exhibit A attached hereto. Such stipulated facts will be referred to, where necessary, hereinafter as “Facts Item No. --.”

The positions of the respondents collectively are presented generally by three counsel. The majority of respondents, including Houston Trades Council, are represented by the same counsel. Also represented by counsel are International Brotherhood of Electrical Workers, Local Union 716 (hereinafter cited as Local 716), and Carpenters District Council of Houston & Vicinity (hereinafter cited as Carpenters); Respondents generally have stipulated that the facts would support the reasonable belief of the Regional Director that unfair labor practices have occurred and that a temporary injunction should issue. The main points of contention involve the scope of the injunction and the requirement contained therein that respondents take affirmative steps to secure the presence of employees on the job. Local 716 also raises the legal question of whether the alleged unfair labor practices may be imputed to its activities at two jobsites.

A.

SCOPE OF INJUNCTION Both Houston Trades Council and Carpenters have questioned the propriety of a temporary injunction reaching otherwise lawful picketing. The petitioner’s position is that the alleged unlawful coercion has become so enmeshed with the legal picketing that, as a practical matter, it will be necessary to enjoin all picketing in order to remove the taint of coercion from the employees as well as from the job sites. The Carpenters position may be seen from the following statements:

However trivial the alleged misconduct of the Carpenters may be in this case, and it is indeed trivial, we submit that not even the most outrageous unfair labor practice can give the Regional Director power to cancel altogether rights guaranteed by the Act.

Carpenters’ Memorandum at 6. And also:

The present state of the law is really quite simple — the right to engage in primary strike activity remains inviolate, even though the proscription against picketing a gate used by neutral employers remains in force.

Id. at 13. Houston Trades Council, in support of this proposition, has cited several cases which separate lawful picketing from unlawful picketing. Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151 (1957); Consolidation Coal Co. v. Disabled Miners of Southern West Virginia, 442 F.2d 1261 (4th Cir. 1971), cert. denied, 404 U.S. 911, 92 S.Ct. 228, 30 L.Ed.2d 184; Squillacote v. Building and Construction Trades Council of Fond Du Lac County, 266 F.Supp. 971 (E.D.Wis.1967). Each of these has been considered carefully.

As has been noted previously, the initial responsibility for balancing the intricacies of labor disputes and the motivations and tactics used by either employer or union, or both, is placed upon the N.L.R.B. and its agents. Courts should normally defer to the Board and its expertise at the temporary injunction stage unless the facts strongly suggest that there is an abuse of discretion or, to phrase it differently, unless it appears that the evidence does not support a reasonable belief that the requested injunctive relief is required. Where the requested injunctive relief appears to be very broad, and the available evidence does not support a reasonable belief as to the necessity for such a remedy, then a District Court may exercise its discretion and trim the relief to fit the case. Otherwise, it should defer to the petitioner’s expertise. Youngdahl, supra, which involved an injunction sought by an employer corporation in a state court, does not suggest a con[5]*5trary result. The Supreme Court there held that the state court lacked equitable power to enjoin legal, peaceful picketing, although it might properly enjoin violent activity. The language of the Supreme Court is worthy of note:

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363 F. Supp. 1, 83 L.R.R.M. (BNA) 3035, 1972 U.S. Dist. LEXIS 10853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/potter-v-houston-gulf-coast-building-trades-council-txsd-1972.