The opinion of the court was delivered by: BARTELS
Proceeding brought by petitioner, Regional Director of the Second District of the National Labor Relations Board (referred to as the 'Board'), for an injunction pursuant to Section 10(j) of the National Labor Relations Act, 29 U.S.C.A. § 160(j) (referred to as the 'Act'), on the ground that he has reasonable cause to believe that respondent has violated Sections 8(b)(3) and 8(d) of the Act, 29 U.S.C.A. § 158(b)(3), (d). Respondent ceased work on the construction of a sewer located on Kent Avenue in the Borough of Brooklyn, City of New York, and as a result of the work stoppage it is alleged that the roadway over the sewer tunnel is in danger of collapsing into the tunnel. Because thereof the Board issued a complaint pursuant to Section 10(b) of the Act and now seeks an injunction.
Section 8(b)(3) provides that it shall be an unfair labor practice for a labor organization or its agents to refuse to bargain collectively with an employer. The term 'bargain collectively' is defined in Section 8(d) of the Act, and requires, among other things, that when a collective bargaining agreement is in effect between the parties there can be no modification or termination of the agreement unless certain procedures are followed, including notification by the party seeking modification or termination to the other party, as well as the Federal Mediation and Conciliation Service and the state mediation agency, as prescribed therein.
On an application of this nature the Court may not determine whether or not the Act has been violated as charged since any determination on the merits must be made by the Board. The sole duty of the Court is to ascertain whether the Regional Director had a reasonable cause to believe that the Act has been violated. See N.L.R.B. v. Denver Building & Construction Trades Council, 1951, 341 U.S. 675, 681-683, 71 S. Ct. 943, 95 L. Ed. 1284. The pivotal question here is whether there was an existing dispute as to modification or termination of the existing agreement or whether the dispute concerned the execution of a contract to be effective in the future with respect to which a strike under the existing agreement might not constitute an unfair labor practice.
The charging party herein is a joint venture, composed of Andrew Catapano Co., Inc. and Grow Construction Co., Inc. (referred to as 'C-G'). Respondent has been and is the exclusive representative of C-G's employees within the meaning of Section 9(a) of the Act, 29 U.S.C.A. § 159(a). It is conceded that the Court has jurisdiction over this dispute.
On or about December 4, 1957 respondent and C-G executed a collective bargaining agreement, which was modified by the parties on or about November 1, 1958, and further modified on or about September 17, 1959 as follows:
'The Agreement as hereby modified shall be reopened as to wages to be paid after August 15, 1960 if negotiations therefor shall be commenced not later than June 1, 1960. If the parties are unable to come to an agreement by August 1, 1960, either party shall have the option to terminate (as of August 15, 1960) the Agreement as modified hereby.'
Agreements between contractors and bargaining agents of their employees are generally, in this industry, on a job basis; therefore, the 1959 agreement was a contract covering all work on
'the Kent Avenue Intercepting Sewer Contracts 2A and 2B and also any and all contracts involving tunnel construction in the area within the jurisdiction of the union which may be undertaken by the Companies or either of them prior to August 15, 1960 or during any extension of the time of this Agreement.'
The agreement in question covers an original contract and modifications thereto between C-G and the City of New York for the construction of a sewer in Brooklyn, N.Y. and the work in progress at all times relevant hereto was under the agreement.
On or about May 25, 1960 respondent served written notice on C-G and other employers in the industry of its desire to commence joint wage negotiations. The notice to C-G invoked 'the reopening clause of our contract'. In June, 1960 a wage package was offered by C-G, which was rejected by the Union (Tr. p. 76). Several meetings were held by the parties but no agreement was reached. In February, 1961 C-G requested a meeting with the Union at which C-G asserted that it wished to bid on a construction job involving the Sixth Avenue subway line and wanted to know where it 'stood with the union' (Tr. p. 77). The C-G offer was for a 65$ wage package and a continuation of the terms of the present agreement until July, 1963. This proposal was rejected by the Union, which proposed (i) a $ 3 wage package and (ii) execution of a contract identical with the contract between respondent and Poirier & McLane (the 'P-M contract'). The Union indicated that if C-G would execute the P-M contract, it would 'look favorably' upon C-G's offer for a contract to run through 1963 and a 65$ wage package. The Union at this time did not wish to negotiate individually with C-G but wished all of the members of the contractors' association to execute the P-M contract. There appears to have been some dispute within the Union as to whether or not the offer had or had not been rejected.
On February 28, 1961 the Union informed C-G that unless the P-M contract was signed work on C-G's project, then manned by respondent, would stop 'for lack of a contract' (Petitioner's Exhibit 4). Two further meetings were held in March, without result. On April 3, 1961 the Union again met with C-G. According to the testimony, the negotiating committee had considered the discussions with regard to the P-M contract as being discussions of contracts to cover future work. At the meeting, however, the respondent's business agent, Brian Finney, and its president, Timothy Murphy, stated that their position was that the P-M contract would apply to work then in progress on the Kent Avenue sewer. At midnight on April 3, 1961 the respondent ceased work on the Kent Avenue sewer, informing C-G by telegram that the stoppage was the result of a 'lack of contract' (Petitioner's Exhibit 8).
No notice was sent to the Federal Mediation and Conciliation Service or the New York State Mediation Board pursuant to Section 8(d)(3). The City of New York, by telegram (Petitioner's Exhibit 7) informed C-G that the failure to finish the concreting of the tunnel has resulted in an unsafe condition, endangering water mains, sewers and power cables in the street.
The charge of the Board that respondent has violated Section 8(b)(3) of the Act by failing to bargain in good faith is predicated upon respondent's alleged failure to comply with the notice requirements of Section 8(d) of the Act with regard to modification of an agreement. The respondent counters that based upon the evidence there was no attempt to modify an existing agreement, but on the contrary the negotiations concerned a future contract for future work and hence while the strike might be a breach of the 'no strike clause' of the agreement, it was in no way a 'modification' of an existing agreement subject to the requirements of Section 8(d). As a further defense it asserts any claim of termination of the agreement in violation of Section 8(d) was not pleaded and consequently there can be no basis for an injunction. In reply to the latter claim the Board argues that while the negotiations between the employer and the Union originated over a modification of an existing agreement, the subsequent conduct of the Union could be construed as an attempt to effect ...