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Kaynard v. Local 282

decided: May 23, 1978.

SAMUEL M. KAYNARD, REGIONAL DIRECTOR OF REGION 29 OF THE NATIONAL LABOR RELATIONS BOARD, FOR AND ON BEHALF OF THE NATIONAL LABOR RELATIONS BOARD, PETITIONER-APPELLANT,
v.
LOCAL 282, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, RESPONDENT-APPELLEE



Appeal from an order of the United States District Court for the Eastern District of New York, Jack B. Weinstein, J., granting in part and denying in part an application for an injunction under § 10(l) of the National Labor Relations Act, 29 U.S.C. § 160(l).

Lumbard and Mulligan, Circuit Judges, and Bryan, Senior District Judge.*fn*

Author: Bryan

BRYAN, Senior District Judge:

On this appeal we address the question whether a union engages in an illegal secondary boycott when it strikes against a general construction contractor in order to compel the contractor to give members of the striking union work currently done by employees of a subcontractor.*fn1 Judge Weinstein of the Eastern District found no reasonable cause to believe that Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 282) had violated the prohibition on secondary boycotts, 29 U.S.C. § 158(b)(4)(B), when it struck John T. Brady, Inc. (Brady). The court based its ruling on a finding that the union's actions had not been directed at a third party and thus fell within the statutory protection for primary activity. See 29 U.S.C. § 158(b)(4)(B). Nonetheless, the court preliminarily enjoined Local 282 from any further striking or picketing on Brady's construction site, finding that Local 282's actions had had the object of requiring Brady to assign particular work to employees represented by Local 282, and therefore had been in violation of 29 U.S.C. § 158(b)(4)(D).

Samuel Kaynard, Regional Director of Region Twenty-nine of the National Labor Relations Board appeals from the order of the district court insofar as it does not include an injunction against § 8(b)(4)(B) violations by Local 282. Furthermore, the NLRB complains that the scope of Judge Weinstein's injunction was too narrow and that the court improperly assigned work among the unions on the Brady construction site. We agree with the Board that the district court had reasonable cause to believe that Local 282 had violated § 8(b)(4)(B). We also conclude that the injunction's protections should have been broader in their scope and that the district court improperly included within its order provisions assigning work among the unions on the construction site. We therefore reverse the district court's judgment in these respects and remand to the district court for appropriate modifications of its injunction.

I. FACTS

Brady is the general contractor for construction of a United States Postal Service mail handling facility at John F. Kennedy International Airport in Jamaica, New York (J.F.K. site). Brady is party to a July 1, 1975, collective bargaining agreement -- known as the "High-Rise Contract" -- with Local 282; this agreement remains in effect until June 30, 1978. According to the terms of the High-Rise Contract all truck driving done on any construction site under Brady's management must be done by members of Local 282. Two exceptions to this general rule are expressly noted: First, Local 282 does not claim jurisdiction over vehicles driven by "mechanics and skilled tradesmen incidental to the trade itself with their hand tools of their trade"; second, the agreement allows persons not members of Local 282 to make deliveries to and pick ups from the construction site, provided these deliveries and pick ups are made to and from only one location at the site. The High-Rise Contract specifically provides that Brady may not subcontract truck driving work to any company not bound by the Brady-Local 282 agreement.*fn2

On March 8, 1977, Brady subcontracted to Active Fire Sprinkler Corp. (Active), a manufacturer and installer of automatic fire sprinkler systems, all plumbing and fire protection work for Brady's project at the J.F.K. site. Active's plumber employees, under an August 8, 1975, collective bargaining agreement, are represented by Plumbers Local Union No. 1 of Brooklyn and Queens (Local 1); its truck driving employees are members of Local 918, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 918), whose collective bargaining agreement was entered into with Active on August 18, 1974. None of Active's employees are represented by Local 282, nor is Active a party to the High-Rise Contract. Moreover, nothing in Active's subcontract with Brady provides that the plumbing contractor is subject to the general contractor's agreement with Local 282.

In addition to Active, two other subcontractors -- Burmar Electric Corp. (Burmar) and Novid Corp. (Novid) -- are present on the J.F.K. site. The record does not show that any of Burmar or Novid's employees belong to Local 282.

Since it entered the J.F.K. site in March 1977, Active has used three types of drivers to transport its materials to and around the site. For deliveries, Active uses both its own drivers (represented by Local 918) and independent drivers (not represented by any union). These drivers deliver loads of pipe and other materials from Active's main office in Brooklyn and from independent suppliers around the country to various points on the J.F.K. site: Some deliveries are made to a single storage facility on the site; other deliveries are made directly to some or all of the twenty-two locations at which Active is performing work on the project. In addition to using the unrepresented drivers and those represented by Local 918, Active has its plumber employees (who are represented by Local 1) use Jeep trucks to transport materials, men, and small tools between the central supply facility on the site and the twenty-two working locations.*fn3

On March 22, 1977, Local 282's business agent informed Active's superintendent that single deliveries to more than one location on the construction site violated the High-Rise Contract. When Active ignored this warning, the Local 282 representative, on March 23, said that, although the union "couldn't do anything to [Active]," it would "get" Brady. Thereafter, until July 1, 1977, a Local 282 shop steward regularly followed Active's trucks around the construction site observing their movements. During April and May of 1977 Local 282 representatives also routinely stopped all Active trucks coming onto the J.F.K. site, demanded to see the drivers' union cards, and informed the drivers that deliveries could be made only to single locations on the construction site. Moreover, Local 282's business agent repeatedly urged Active's superintendent to hire members of Local 282 to drive Active's Jeep trucks around the site. But Active rebuffed all attempts by Local 282 to alter Active's method of transporting materials.

Having failed to induce Active to employ Local 282 members as truck drivers, Local 282 shifted its attention to Brady. Thus, on May 21, 1977, the Local 282 business agent approached Louis Ferrari, Brady's general superintendent, and demanded that Brady add a Local 282 member to its payroll to make up for Active's refusal to hire members of Local 282; Ferrari refused. Thereafter, from May 21 until June 15, a Local 282 member unsuccessfully applied every day for work as Active's truck driver on the J.F.K. site. At the same time Brady, acting through Ferrari, began to urge Active's President to hire Local 282 members to drive the subcontractor's trucks. Further, Ferrari attempted to enlist Local 1's business agent in the campaign to coerce Active to change its policy. Thus, in early June Local 1's business agent, at the urging of Ferrari, met with a representative from Local 282, who told him that Local 282 could "make Active sign an agreement with [Local] 282 through Brady."

After both direct and indirect attempts to coerce Active to hire Local 282 members had failed, on the morning of June 16 Local 282 put a picket line at the only gate to the J.F.K. site, resulting in the cessation of work by all Brady, Burmar, and Novid employees. Later in the day, Local 282 took its complaints to the Local 282-Building Contractors Association Joint Trade Board (Trade Board), the body to which initial resort is to be had under the High-Rise Contract. The Trade Board ruled that any truck driving done on the J.F.K. site, other than the initial drop of materials at a single location, had to be done by Local 282 members; accordingly, the Trade Board ordered Brady to place truck drivers from Local 282 in each of Active's trucks.*fn4

Late in the afternoon of June 16, Local 282 removed the picket line at the J.F.K. site and work resumed when the union was told that Brady intended to comply with the mandate of the Trade Board. To that end, Brady unsuccessfully tried once again to persuade Active to hire a Local 282 member for the J.F.K. site; failing that, Brady itself hired a member of Local 282 and voluntarily gave him seventeen days' backpay, covering the days he had reported to Active and was denied work driving the subcontractor's truck. After threatening on June 27 to renew its strike because of Brady's failure to secure compliance with the Trade Board's directive,*fn5 Local 282 placed a picket line at the J.F.K. site once again on June 28, thereby stopping work by Brady, Burmar, and Novid employees. In order to end the strike, on June 30 Brady suspended for three weeks all work by ...


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