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KAYNARD EX REL. NLRB v. LOCAL 804

February 8, 1972

Samuel M. Kaynard, Regional Director, Region 29, National Labor Relations Board, for and on Behalf of National Labor Relations Board, Petitioner,
v.
Local 804, Delivery and Warehouse Employees, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondent


Neaher, District Judge.


The opinion of the court was delivered by: NEAHER

NEAHER, District Judge.

Petitioner, Regional Director of Region 29 of the National Labor Relations Board ("Board") has applied for a temporary injunction against respondent pursuant to Section 10(l) of the National Labor Relations Act ("Act"), 29 U.S.C. § 160(l). Respondent is the local labor union which represents warehouse employees at the Staten Island distribution center of The B.F. Goodrich Company ("Goodrich"). These employees have been on strike since October 20, 1971, after respondent and Goodrich failed to agree on a new labor contract.

 On December 9, 1971 Goodrich filed a charge with the Board alleging that respondent has been engaging in unfair labor practices in furtherance of the strike by inducing and encouraging employees of other employers to refuse to transport or handle Goodrich products with the object of forcing those employers to cease doing business with, or performing services for, Goodrich. In seeking injunctive relief pending final disposition of the charge before the Board, petitioner asserts he has reasonable cause to believe the charge is true that respondent has been and is engaging in acts and conduct violating Section 8(b)(4) of the Act, 29 U.S.C. § 158(b)(4), *fn1" and that a complaint thereon should issue.

 Respondent filed an answer to the petition denying material allegations but admitting that beginning on or about December 7, 1971, and at various times thereafter, it engaged in picketing "in protest of the activities of" Goodrich, the Baltimore and Ohio Railroad ("B. & O."), and Byrnes Express and Trucking Co., Inc. ("Byrnes") in relation to Goodrich. This extended picketing, respondent contends, was aimed solely at what it calls "combined efforts of Goodrich, B. & O. and Byrnes to circumvent the strike and picketing of Goodrich" and was entirely permissible as lawful primary strike activity under well-established "common situs" and "ally" doctrines applicable to the situation here.

 "In passing on a petition for a § 10(1) injunction, the federal district court does not have the authority nor the responsibility of deciding whether respondent had committed the unfair labor practice charged. . . ." McLeod ex rel. NLRB v. Local 25, International Brotherhood of Electrical Workers, 344 F.2d 634, 638 (2 Cir. 1965). Its function is limited to determining (1) whether the Regional Director has "reasonable cause" to believe the unfair labor charge is true, and (2) whether temporary injunctive relief would be "just and proper" in terms of general equitable principles. Id. at 638. As to the latter, the court must bear in mind that "the preliminary injunction is of critical importance to participants in labor disputes, for it may have as great an effect upon the dispute as the ultimate outcome of the litigation." McLeod ex rel. NLRB v. Business Machine & Office Appliance Mechanics Conference Board, etc., 300 F.2d 237, 242 (2 Cir. 1962). To warrant injunctive relief, therefore, the court must find not only that "there is a reasonable possibility of the Board sustaining the unfair labor practice charge" but also reasonable cause to believe that such a decision will be enforced by the Court of Appeals. Id. at 241 and 243 n. 17.

 After hearing the evidence of petitioner and respondent, summarized below, and mindful of the foregoing rules, the court finds (1) that petitioner has not demonstrated factual and legal support warranting injunctive relief against respondent's picketing activities at the South Avenue entrance to the B. & O. Arlington Yard; and (2) that petitioner has demonstrated such support warranting injunctive relief against respondent's picketing activities at the B. & O. Yard in Cranford, New Jersey, and at or in the vicinity of B. & O. freight cars located on railroad track in the Raritan Industrial Center, Edison, New Jersey.

 Goodrich's distribution center, the situs of the labor dispute, is housed in a warehouse and office building situated on an open tract of land bordering Forest Avenue, Staten Island, N.Y. There truck, industrial and automobile tires, tubes, hose and related products received from various Goodrich factories are stored for consolidation and eventual export shipment to Goodrich plants or customers overseas. *fn2" These goods arrive at the distribution center by truck or rail. They are shipped out by truck for delivery to piers for overseas transportation. Until the strike that trucking service had been continuously performed for Goodrich by Byrnes, which handled 85 to 90% of the outgoing shipments after Goodrich discontinued using rail transportation to the piers some years ago.

 The Goodrich employees now on strike, whose picketing activities give rise to this proceeding, were classified as "warehousemen" under the previous labor contract. Their normal and usual work consisted essentially of unloading incoming rail and truck shipments, storing the goods in proper inventory areas within the warehouse, and subsequently filling outgoing export orders from stock and moving them to the truck dock platform to be picked up by Byrnes' truckmen for delivery to the piers. To perform these tasks the warehousemen operated lift trucks and utilized pallets and cones, in addition to such manual handling of the goods as was required.

 When the warehousemen went on strike last October they promptly began picketing the truck entrance to the Goodrich premises carrying signs reciting "B. F. Goodrich on strike, Local 804 IBT". That entrance is a driveway off Forest Avenue leading to the truck dock platform extending along one side of the warehouse. It is the only business entrance to the Goodrich premises. Except for the events hereinafter described, the picketing effectively blocked Byrnes and other truckmen from performing their normal services for Goodrich, since their employees would not cross the picket line.

 Respondent's picket line at the front entrance, however, did not cut off rail shipments to the warehouse. These continued to arrive during October and November, although in decreased volume. The freight cars entered and left the Goodrich premises via a railroad spur terminating in a siding next to the warehouse on the side opposite to the truck dock and driveway. The spur track connects with B. & O. tracks in its Arlington yard, which is contiguous to the rear of the Goodrich premises. The surrounding area is swampy; there is no fence; a small creek forms a natural boundary between the B. & O. and Goodrich properties, which the spur track traverses over a culvert. It is, in effect, a rear entrance accessible only to freight cars.

 During October and November Goodrich used the B. & O. spur to make some rail shipments out of the warehouse to points outside the State of New York. Supervisory personnel performed the loading and other work normally done by the striking employees. No export shipments were made, probably because of the warehousemen's strike but possibly also because of the longshoremen's work stoppage at the piers.

 In early December, after the longshoremen returned to work, Goodrich attempted to resume export shipments to the piers. Arrangements were made with B. & O. to supply empty freight cars which were loaded at the siding by Goodrich supervisory personnel. B. & O. then hauled these cars over the spur to its team tracks in the contiguous Arlington yard, a distance from the Goodrich siding of about 500 yards. The B. & O. team tracks were a branching out of the main railroad tracks to facilitate delivery of freight to consignees who did not have individual sidings. Truckmen entered the team track area via South Avenue, a roadway off Forest Avenue about one-quarter mile distant from the Goodrich truck driveway. Trucks could pull up alongside the freight cars in Arlington yard, receive their freight and exit via South Avenue to Forest Avenue.

 Goodrich requested Byrnes to have its trucks and drivers at the Arlington yard on December 7, 1971 to transfer Goodrich export shipments from four freight cars moved to the team tracks from the Goodrich siding and re-deliver those shipments to the piers. Byrnes employees entered the Arlington yard on that date via the South Avenue entrance, since there was then no picketing at that point, and began the transfer. They were interrupted, however, by the appearance of Goodrich striking employees who displayed a picket sign. Unquestionably the picketing induced, if not coerced, *fn3" Byrnes' employees to cease operations, with the result that only two of the four carloads got to the piers. Thereafter, Goodrich warehousemen in parked cars maintained surveillance at the entrance of the Arlington yard.

 After the frustration of the Arlington yard arrangement, Goodrich devised a new routing for its export shipments, again utilizing B. & O. and Byrnes. Freight cars, loaded by supervisory personnel, left the warehouse siding via the spur, but outbound this time from the Arlington yard to B. & O.'s yard at Cranford, N.J., some 12 miles away. Byrnes agreed to have its trucks meet the freight cars at Cranford on December 9th, unload them and deliver the shipments to the piers. Again, respondent's intelligence apparatus was equal to the occasion. When the Byrnes' truckmen arrived, two of Goodrich's striking employees were already there, prepared to picket if necessary. The sign they had with them, however, bore the additional statement in large letters "No dispute with any other employer". Conversation ensued, after which the Byrnes employees ...


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