The opinion of the court was delivered by: CURTIN
The petitioner seeks a temporary injunction pursuant to Section 10(l) of the National Labor Relations Act pending the final disposition of a charge filed by the D.W. Winkelman Co., Inc. Winkelman before the National Labor Relations Board, alleging the respondent, Local Union No. 532, United Brotherhood of Carpenters and Joiners of America, AFL-CIO Carpenters, has engaged in unfair labor practices within the meaning of Section 8(b)(4)(D) of the Act. The Carpenters, according to petitioner's allegations, have unlawfully caused work stoppages in the course of a jurisdictional dispute with members of Local 7, Laborers International Union of North America Laborers. The dispute concerns the jobsite unloading of wooden and metal materials with the assistance of power operated cranes.
This court held a hearing to develop the facts alleged in the petitioner's application for a temporary injunction. Representatives of Winkelman and the Carpenters testified, but the Laborers were not served and did not make an appearance. No Laborer witnesses were called. The parties have informed the court that the Board had started to take testimony in a 10-K proceeding, but that the hearing is not completed as yet. The following constitutes this court's findings of fact and conclusions of law.
Winkelman, a member of the Associated General Contractors of America, A.G.C., has a contract to construct a part of the Southern Tier Expressway in New York State. Through the A.G.C., Winkelman is a party to collective bargaining agreements with both the Carpenters and the Laborers.
Article I, Section 4 of the agreement between the Carpenters and A.G.C. provides:
"The loading, unloading, stringing of all wood products, metal, masonry, plastic or any other materials put in place by the members of the Brotherhood shall be the jurisdiction of the (Carpenters)."
Article XIII, Jurisdictional Disputes, provides as follows:
"1. The Employer agrees that he will assign work in accordance with the rules and regulations of the National Joint Board for the Settlement of Jurisdictional Disputes. (Joint Board.)
2. In the event that one or more of the parties to a jurisdictional dispute are not party to the National Joint Board, it is agreed that the Employer and the Union will abide by and recognize existing international jurisdictional agreements."
On prior construction projects in the same geographical area, the contractors customarily assigned the unloading work to the Carpenters.
Shortly before the work started, on July 22, 1970 Winkelman held two separate pre-job conferences, one with the Laborers and the other with the Carpenters. At a brief meeting with the Carpenters, the work which became the subject of the dispute was not discussed at all. However, at the other meeting, Laborer representatives claimed the work of unloading the materials in question. Mr. Cox, Winkelman's labor representative, testified that no definite commitment was given to the Laborers at that time but the problem was left for a second meeting to be held a few days later. He did not attend the second meeting, and what occurred at that meeting is not clear. However, it is clear that the allegation made by the petitioner that the work of unloading materials was assigned originally to the Laborers is not supported by the evidence for, on July 27, when the actual construction began, the Carpenters unloaded the materials coming to the jobsite. They continued to perform this work from day to day until the afternoon of August 7, 1970, except on one occasion on about July 31, when, because of the shortage of carpenters, two laborers assisted two carpenters in unloading 20,000 board feet of 2 x 4's. On the afternoon of August 7, Mr. Harvey, Winkelman's job superintendent, ordered the Carpenters to cease performing this work and reassigned it to the Laborers. At that time, Mr. Hakes, the Carpenter steward, questioned Mr. Harvey about why he had taken this action. The superintendent said he was told to reassign the work to the Laborers to see what would happen.
On August 10, Mr. Hughes, Carpenter representative, met with Mr. Serafini, project superintendent for Winkelman. At that time, Mr. Serafini said that he would reassign the Carpenters to the work. However, on about August 17, the Laborers continued the work of unloading. Following this, on August 18, Mr. Hughes sent a telegram to the Carpenters International complaining of the assignment and requesting that the procedures called for by Article XIII of the agreement be put into effect, and that the dispute be referred to the Joint Board. On August 24, the Joint Board sent a letter to Winkelman stating that, if the work was originally assigned to the Carpenters, Winkelman was directed "to proceed immediately with the disputed work in accordance with the original assignment." The Carpenters received their copy of this letter on August 26, after it had been processed through the International office. However, during a meeting between the parties on August 27, Winkelman representatives denied receiving the letter from the Joint Board. At this meeting, Hughes insisted that the power rigging was the Carpenters' work, but the Winkelman representatives refused to agree to this. Mr. Cox, the Winkelman labor representative, testified that, if Hughes could have produced a Joint Board decision at the August 27 meeting which assigned work to the Carpenters, Winkelman would have followed the Joint Board decision and assigned the work to the Carpenters. However, a few days later, the company took a different position. The new position was that Winkelman was not bound by the decisions of the Joint Board for, on September 1, 1970, Mr. O'Dell, Laborer counsel for the A.G.C., sent a telegram to the Carpenters stating:
"AGC and its member contractors are not party to the Joint Board. We treat (Joint Board) letter as a nullity and will press for ...