The opinion of the court was delivered by: WEINSTEIN
The Regional Director of the National Labor Relations Board (NLRB) seeks a temporary injunction against the Transport Workers Union of America, AFL-CIO, and Local 504, Transport Workers Union of America, AFL-CIO (TWU) pending disposition of charges filed by Triangle Maintenance Corporation (Triangle). 29 U.S.C. § 160(l). TWU is alleged to have engaged in unfair labor practices by engaging in a proscribed strike against Triangle in connection with a jurisdictional dispute. 29 U.S.C. § 158(b)(4)(D).
The quarrel arises from an attempt by some sixty-nine cleaning workers represented by TWU to retain jobs they have had for some years; Triangle substituted a new crew for these workers. For the reasons indicated below, the injunction must be denied.
When the International Arrivals Building and the Control Tower at John F. Kennedy Airport were opened in 1959 the New York Port Authority awarded the cleaning contract to Allied Aviation Service Company (Allied). Since Allied had been doing other cleaning work at the Airport with employees covered by a collective bargaining agreement with TWU, Allied assigned the work to TWU members. In 1961 the cleaning contract was shifted by the Port Authority to American Building Maintenance Company of California; it retained the former employees of Allied and assumed the TWU-Allied collective bargaining agreement. Allied was again awarded the contract in 1966; it retained the same employees and union agreement. Both the TWU-Allied agreement and the Allied contract with the Port Authority were due to expire at 12:00 midnight of July 31, 1969. By that time some of the sixty-nine cleaning workers involved would have been working at the locations in question for as much as ten years, and they had built up substantial seniority and other rights.
Triangle had, during at least some of these ten years, been doing cleaning work at other locations in the airport. It had a contract with Local 32B of the Building Service Employees International Union (32B).
In the spring of 1969 Triangle bid for the work at the International Arrivals Building and the Control Tower. Triangle reasonably interpreted its 32B agreement as covering any work it obtained at the airport. TWU, however, took the position that Triangle would have to keep Allied's sixty-nine men and negotiate a new agreement with TWU, their union representative, for the two locations. Thus, were Triangle to obtain the contract, it faced being enmeshed in an inter-union dispute between TWU and 32B.
On July 24 it became known that the Port Authority had granted the contract to Triangle. Triangle began advertising for workers and planning the transfer of a few of its employees from other locations at the airport so that it could assign a new work crew to the International Arrivals and Control Tower locations shortly after midnight of July 31. It contemplated bringing in these workers under the 32B agreement.
To Triangle's surprise, on July 31, at 2:30 P.M., it was informed by 32B that the union laid no claim to the work, that the men on the job should be retained, and that an agreement with TWU should be sought. TWU and 32B had amicably resolved their incipient dispute by having 32B bow out. Nevertheless, Triangle refused to discuss the matter with TWU and continued to plan to bring in a new crew that night. One of the chief factors that motivated Triangle not to try to reach an agreement with TWU was that it had bid on the basis of 32B wage rates and retaining Allied's senior employees and TWU representation would have increased its labor costs beyond those it had foreseen.
Thirty-one of the sixty-nine Allied employees were scheduled to begin work a half hour before midnight on July 31. Upon arrival they were informed by TWU officials that Triangle had not hired them and they were advised to strike. Picketing began at midnight. TWU's dual intention in encouraging picketing was, first, to force Triangle not to terminate the sixty-nine workers' employment at these sites and, second, to force Triangle to bargain with TWU as representative of these workers. Triangle's new employees passed the picket lines within the hour and the dispute took on its present posture.
The NLRB Regional Director agrees that the legality of the picketing for the purpose of granting an injunction is to be determined as of the early morning hours of August 1. It is not relevant, therefore, that at about 10:00 P.M. on August 1 - some twenty-two hours after picketing began - Triangle entered into an agreement with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 732 (Teamsters) as the exclusive bargaining agent for cleaning workers at the two locations. Accordingly, the Court refused to hear evidence offered by TWU as to the lack of bona fides of that Triangle-Teamsters agreement. An injunction could not, therefore, be granted on the theory that Triangle was caught in a jurisdictional dispute between TWU and the Teamsters.
The Statutory language relied upon by the NLRB might seem broad enough to cover as a jurisdictional dispute a disagreement between a "class" of workers represented by a union, who have long held certain jobs, and an employer who brings in a "class" of new workers to replace them. The provision, ...