Denver Building and Construction Trades Council

In the Matter of DENVER BUILDING AND CONSTRUCTION TRADES COUN- CIL; INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A. F. L., LOCAL 68; AND INTERNATIONAL ASSOCIATION OF JOURNEYMEN PIPE FITTERS AND APPRENTICES OF THE PLUMBING AND PIPE FITTING IN- DUSTRY OF THE UNITED STATES AND CANADA, A. F. L., LOCAL 3 and THE GRAUMAN COMPANY Case No. 30-CC-4.-Decided March 15,1949 DECISION AND ORDER REMANDING CASE Upon an amended charge filed by The Grauman Company, the General Counsel of the National Labor Relations Board, by the Regional Director for the Seventeenth Region, on September 2, 1948, issued and served on the parties a complaint in the above-entitled pro- ceeding, alleging that Denver Building and Construction Trades Council; International Brotherhood of Electrical Workers, A. F. L., Local 68; and International Association of Journeymen Pipe Fitters and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, A. F. L., Local 3, herein collectively called the Respondents, had engaged and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (4) (A) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Thereafter, the Respondents filed a motion to dismiss the complaint, principally on the ground that the parties are bound by a prior de- cision of the United States District Court for the District of Colo- rado,' in a proceeding brought by the General Counsel against the Respondents under Section 10 (1) of the Act, in which the Court found that the alleged unfair labor practices do not affect commerce within the meaning of the Act. Pursuant to notice, a hearing was held at Denver, Colorado, on September 28, 1948, before Howard Myers, the Trial Examiner duly i Slater v. Denver Burilding and Construction Trades Council, 81 F. Supp. 490 (D. C., Colorado). 82 N. L. R. B., No. 5. 93 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD designated by the Chief Trial Examiner. Before receiving any evi- dence on the merits, the Trial Examiner granted the Respondents' motion to dismiss the complaint, and issued his Order of Dismissal. Thereafter, the General Counsel filed a request for review of the Trial Examiner's Order, pursuant to Section 203.27 of the Board's Rules and Regulations-Series 5, as amended. The Respondents, and the Building Trades Department of American Federation of Labor as amicus curiae, filed briefs in opposition thereto, and also requested a hearing before the Board for the purpose of oral argument. The Board granted this request, but all parties later waived oral argument after the Board (Chairman Herzog and Member Houston dissenting) denied a motion to consolidate it with the argument in another case. The Board has considered the request for review, the briefs sub- mitted in opposition thereto, and the entire record in the case, and finds that the Trial Examiner's ruling dismissing the complaint was erroneous. The Grauman Company, although a party to this proceed- ing, was not a party to the District Court case. The issue before the District Court, unlike the one now before us, was whether or not the regional attorney to whom the matter was referred had "reasonable cause to believe . . . that a complaint should issue." 2 In any event, we are satisfied that the injunction provisions of the Act establish merely an ancillary District Court proceeding, in aid of the primary proceeding, before the Board. Section 10 (1) does not provide an alternative to a proceeding before the Board in accordance with the Act. Indeed, Section 10 (1) speaks only of "appropriate injunctive relief pending the final adjudication of the Board with respect to such mat- ter" (emphasis supplied). Moreover, a contrary construction would contravene the provisions of Section 10 (a), which clothes the Board with exclusive power to prevent unfair labor practices affecting com- merce regardless of "any other means of . . . prevention . . . estab- lished by . . . laws For the foregoing reasons, we find no merit in the Respondents' con- tention that the District Court's di_.nissal of the injunction petition 2 See Evans v. ITU, 76 F. Supp . 881 (D. C., S. D. Indiana ), in which the District Judge stated, in an analogous proceeding under Section 10 (j) : When the decision of a district court in a proceeding under Section 10 (j) for inter- locutory relief is viewed in its relation to the primary proceeding under Section 10 (b), it is neither final nor conclusive as to the issues there presented. It is not final because the standard of inquiry in Section 10 (j) is the probability of the existence of facts, while the decision of the Board in a Section 10 (b) proceeding must rest upon a full hearing and a measure of proof and inquiry extending beyond the standard of probability. The decision of the district court is not res 9udhcata upon the final bearing of an administrative complaint because in an application for interlocutory and tem- porary relief under Section 10 (j) the court does not undertake to pass upon the merits of the principal controversy . That lies within the province of the Board. ' See Amazon Cotton Mill Co. v. Textile Workers Union, 167 F. ( 2d) 183 (C. A. 4). DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 95 requires the Board to dismiss the complaint .4 Accordingly, we hereby reverse the Trial Examiner's dismissal of the complaint, and remand the case to the Division of Trial Examiners with directions to proceed in accordance with the Board's Rules and Regulations. ORDER IT IS HEREBY ORDERED that the Order of Dismissal issued herein by the Trial Examiner be, and it hereby is, reversed, and that this proceed- ing be, and it hereby is, remanded to the Division of Trial Examiners with directions to proceed in accordance with the Board's Rules and Regulations. ' See Evans v. ITU, supra; Graham v. Boeing Airplane Company, 22 L. R. R. M. 2243; and Styles v. Local 74, United Brotherhood of Carpenters & Joiners, 74 F. Supp. 499 (D. C., S. D. Tennessee ), in each of which the Court indicated that its decision in temporary injunction proceedings is not binding upon the Board.