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December 31, 1947

DOUDS, Regional Director of Second Region of National Labor Relations Board,

The opinion of the court was delivered by: BRENNAN

This proceeding requires the consideration of the National Labor Relations Act (hereinafter referred to as the 'Act'), as amended by Congress June 23, 1947, by the Labor Management Relations Act, 1947, and popularly known as the Taft-Hartley Labor Act, 29 U.S.C.A. § 151 et seq.

A petition has been filed in this Court under the provisions of Section 10(j), and 10(l) of the Act, in which the petitioner prays that an injunction issue restraining the respondent and its agents from engaging in activities which petitioner avers constitute unfair labor practices within the meaning of Section 8 of the Act. The respondent has filed its answer, in substance denying the commission of any activities which might be determined to be unfair labor practices, and further alleges matters in avoidance of petitioner's averments. The proceeding came before the Court through the procedural menas of an order to show cause.

 A considerable amount of oral evidence was offered by the plaintiff for the purpose of showing the activities of the respondent which are alleged to constitute unfair labor practices. The respondent offered no evidence in contradiction to the evidence of plaintiff's witnesses, and for all practical purposes the decision must be based upon the evidence of the petitioner, and upon the applicable law. Decision of motions made by the respondent was reserved.

 The proceeding arises out of a factual situation which may be concisely described as follows: For some years Harry Rabouin has conducted an express or transportation business under the name and style of Conway's Express. The principal place of business is located at Pittsfield, Mass., with branch terminals at Rensselaer, New York, and Springfield, Mass. The business conducted consists of the transportation of freight by motor truck and trailer over public highways to various destinations in about seven different states.

 Prior to September, 1947, Rabouin had leased part of its equipment to the Middle Atlantic Transportation Company located at New Britain, Conn. The leasing arrangement is complicated, but it is sufficient to say that Rabouin was paid upon a mileage and freight weight basis for the equipment so leased. The operators of such equipment were employees of Mid-Atlantic, were under its complete control and their wages were paid by that company. Rabouin's employees, that is, the operators of the Rabouin equipment, used in his own business, were members of the respondent Union, and Rabouin carried out the terms of a written instrument which is referred to as a contract, which instrument attempted to define the rights of Respondent-Union members who were employees of Rabouin. The instrument was not in fact signed by Rabouin, although it appears, as above indicated, that he complied with the obligations thereof. Prior to September 10, 1947, respondent had negotiated with Rabouin to the end that equipment leased by Rabouin should only be operated by union members. Rabouin agreed either to sell the equipment or to arrange for union operators. The arrangement was not carried out. About September 10, 1947, respondent, through its business agent, learned that Rabouin equipment leased to Mid-Atlantic had transported or was engaged in transporting freight from New Britain, Conn. to Cleveland, Ohio; the operator of the truck on that occasion not being a member of the union, and, of course, not being an employee of Rabouin. On September 10, 1947, a strike which still continues was called by respondent against Rabouin. The above statement, together with evidence of acts or occurrences performed or happening during the progress of the strike from the factual background of this proceeding.

 Rabouin later filed charges with the Regional Director of the National Labor Relations Board, (hereafter referred to as the 'Board'), pursuant to Section 10(b) of the Act, which charges the respondent with having engaged in unfair labor practices as defined in Section 8(b) of the Act. A complaint was thereafter served by the Regional Director upon the respondent, and this proceeding followed.

 The specific charges which the petitioner claims constitute unfair labor practices may be concisely stated as follows.

 1. The calling of a strike which had for its purpose to force or require Rabouin to cease doing business with the Mid-Atlantic Company. Sec. 8(b)(4)(A).

 2. The refusal to bargain collectively with Rabouin. Sec. 8(b)(1)(B).

 3. The demand for a closed shop agreement between Rabouin and respondent. Sec. 8(b)(1)(A).

 4. The demand for the payment by Rabouin to the respondent of money for services not performed or to be performed; towit, an amount equal to the wages of a member of Respondent Union for the trip from New Britain, Conn. to Cleveland, Ohio, about September 10, 1947. Sec. 8(b)(6).

 5. The threatening or coercion of Rabouin's employees. Sec. 8(b)(1)(A).

 6. The inducing and encouraging by the respondent of employees of other employers to refuse to receive or deliver articles and materials which had been handled and transported or were to be handled and transported by Rabouin's employees and equipment. Sec. 8(b)(4)(A).

 The facts as shown by the evidence require little discussion, but there arose sharp differences of opinion as to the extent of the power of the Court to grant relief herein, and the procedure to be followed in arriving at a ...

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