Shore v. United Brotherhood of Carpenters & Joiners of America

316 F. Supp. 426, 75 L.R.R.M. (BNA) 2074, 1970 U.S. Dist. LEXIS 10576
CourtDistrict Court, W.D. Pennsylvania
DecidedAugust 13, 1970
DocketCiv. A. No. 70-896
StatusPublished
Cited by3 cases

This text of 316 F. Supp. 426 (Shore v. United Brotherhood of Carpenters & Joiners of America) is published on Counsel Stack Legal Research, covering District Court, W.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shore v. United Brotherhood of Carpenters & Joiners of America, 316 F. Supp. 426, 75 L.R.R.M. (BNA) 2074, 1970 U.S. Dist. LEXIS 10576 (W.D. Pa. 1970).

Opinion

OPINION

ROSENBERG, District Judge.

This proceeding is here on a petition filed by Henry Shore, the Regional Director for Region Six of the National Labor Relations Board (the Board), pursuant to § 10 (Z) of the National Labor Relations Act (the Act), as amended, 61 Stat. 149; 73 Stat. 544, 29 U.S.C. § 160(l),1 seeking a temporary injunction [428]*428against the respondent, United Brotherhood of Carpenters and Joiners of America, Carpenters District Council of Western Pennsylvania, AFL-CIO, pending the final disposition of a charge filed by 316 Construction Co., Inc. (316) alleging that the respondent has engaged in, and is engaging in, unfair labor practices. Specifically, it was charged that the respondent violated and is violating § 8(b) (4) (i) and (ii) (D) of the Act, 29 U.S.C. § 158(b) (4) (i) and (ii) (D),2 which proscribes action to force or require an employer to assign particular work to employees in a particular labor organization or in a particular trade, craft or class, rather than to employees in another labor organization or in another trade, craft or class, in circumstances where the employer involved is not failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work.

Based upon the petitioner’s conclusion that reasonable cause exists to believe that the respondent has engaged and is presently engaging in the unfair labor practice charged, the petitioner seeks the issuance of temporary injunctive relief pending the resolution of this matter before the Board.3

Marvin G. Elman is the president and 99% owner of the stock of the following corporations: 316 Construction Co., Inc. ; Elman Associates, Inc.; Four Seasons Heating and Cooling Co., Inc. and H.B.P. Properties, Inc. In addition he is a general partner in Mt. Royal Associates. In his capacity as chief executive officer, Elman directs the functions and determines the policies of these corporations and is the executive in control of all activities concerning these corporations. The activities of all these corporate entities are inter-related in that their overall function is to acquire land, build apartment buildings, and procure supplies both for the construction and the ultimate maintenance of the buildings. One of the corporations pays the wages and salaries of the employees in all the corporations, and the employees interact and perform services indiscriminately for all the corporations. Elman as president of these corporations assigns the work and supervises the employees with indifference to corporate distinctions.

[429]*429On July 21, 1970, “316” was engaged in the construction of a 97 unit apartment project at 7070 Forward Avenue, in the City of Pittsburgh, Allegheny County, Pennsylvania. During the course of this construction it was engaged in the performance of services for all the other Elman corporations, and was actively engaged with Mt. Royal Associates in the apartment construction where excavation and installation of footers had been commenced. Two carpenters out of five employed by the agglomerate corporations had been assigned by Elman to the job to construct frames for footers, in aid of an independent contractor who was to pour concrete.

On July 21 and July 22, 1970, two business agents of the respondent Union, Gene Smigas and Adam Petrovich whose function was to organize new members, visited the construction site and demanded that Elman sign contracts with respondent Union covering the wages, working conditions and hours of employment of the nonunion carpenter employees working for Elman. The respondent’s representative Smigas; said to Elman “I want that work for the men I represented.” Elman pointed to the wooden forms to be used as footers, and explained that he had given that work to his own men, whereupon Smigas stated, “We don’t want any nailers on that job.” Elman stated that “My men aren’t nailers,” and the conversation terminated. On July 21 and July 22, 1970, Elman rejected both overtures made by the respondent’s representative. Following that the respondent placed pickets on the job with signs that read “Elman Associates, Inc. has no contract covering working conditions with the Carpenters District Council of Western Pennsylvania.” They thereupon influenced independent truck drivers not to deliver needed construction supplies, and so stopped the construction. With the work stoppage at this construction site, Elman transferred the two carpenters to work at his other 31 or 32 apartment buildings. On August 5th, the day before the postponed hearing, the respondent applied to the Board for certification as union representative for the two of Elman’s five carpenters, who had been at the construction project.

The issue before me for determination is in reality not whether the respondent Union was attempting to gain employment for its members at the expense of Elman’s carpenters or whether respondent was attempting to organize Elman’s employees, as it is whether or not the Board has demonstrated that there was reasonable cause to believe that the elements of an unfair labor practice were present. If it is true that the Union was attempting to gain employment for its own members, then the picketing is a violation of § 8(b) (4) (i) and (ii) (D). However, if organizing of the construction carpenters was the sole aim of the Union, then no illegal activity has occurred because of the exemption provided in the building and construction industry by subsection 8(f) of the Act, 29 U.S.C. § 158(f)4

In Schauffler v. Local 1291, International Longshoremen’s Association, 292 F.2d 182, 187, C.A. 3, 1961, former Chief Judge Biggs said, “The Board need not show that an unfair labor practice has been committed, but need only demonstrate that there is reasonable cause to believe that the elements of an unfair labor practice are present. Nor need the Board conclusively show the validity of the propositions of law underlying its charge; it is required to demonstrate merely that the propositions of law which it has applied to the charge are substantial and not frivolous.”

[430]*430My function here in reality is to effectuate the purposes of Congress in providing for the Board’s action in circumstances such as these. Congress has invested the Board with broad powers to resolve problems between employers and employees, and where expertise is required, courts are not empowered to •substitute their opinions for that of the Board. The purpose of the Board is to provide orderly functioning between employers and employees and to investigate and ascertain when, if any, violations of fair labor principles have occurred. The determination of the occurrence of violations is left initially to the broad discretion of the Board. N.L.R.B. v. Great Atlantic & Pacific Tea Company, 407 F. 2d 387, C.A. 5,1969.

Where as here, Congress has vested the Board with the power to grant and fashion appropriate relief, the power of the Board is broad. Teamsters Local Union No. 5 v. N.L.R.B., 406 F.2d 439, C.A. 5, 1969; N.L.R.B. v. Bush Hog, Inc., 405 F.2d 755, C.A. 5, 1968.

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Bluebook (online)
316 F. Supp. 426, 75 L.R.R.M. (BNA) 2074, 1970 U.S. Dist. LEXIS 10576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shore-v-united-brotherhood-of-carpenters-joiners-of-america-pawd-1970.