Interlocutory appeal from the Circuit Court of Cook county;
the Hon. ROBERT JEROME DUNNE, Judge, presiding. Heard in the
third division of this court for the first district. Affirmed in
part and reversed in part and remanded for further proceedings in
accordance with the views
MR. PRESIDING JUSTICE FEINBERG DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 2, 1954.
This interlocutory appeal by defendants brings up for review an order for a temporary injunction in a labor dispute, accompanied by a strike called by defendants at plaintiff's plant. The temporary injunction was issued upon the sworn complaint; defendants' written motion to strike the complaint; plaintiff's motion for temporary injunction, and defendants' affidavit in opposition to the motion. No answer was filed to the complaint. A reference was had to a master to hear and report upon plaintiff's motion for temporary injunction. No evidence was heard by the master. Upon the face of the pleadings he recommended that plaintiff's complaint be dismissed for want of equity. Plaintiff's exceptions to the master's report were sustained, and the order for the temporary injunction was entered.
The injunction order in substance commands the defendants to cease the strike in progress and to desist and refrain from inducing or permitting any further strike or work stoppage. It also restrains the use of force, violence or intimidation of any character, and the massing, congregating or collecting in crowds, loitering upon or obstructing the sidewalks, driveways, streets, alleys and approaches to plaintiff's plant.
The complaint in substance alleges that the defendants were not labor organizations within the meaning of the Taft-Hartley Act and the National Labor Relations Act; that the defendants were dominated by Communist leaders, who are members of the Communist party, which had for its aim and purpose the overthrow of government by force or other illegal means; that a part of the plan to accomplish such purpose was to call illegal strikes, such as the instant strike; that the defendants, previous to the grievances herein complained of, were affiliated with the C.I.O. International Union; that because of the domination of the defendant unions by Communist leaders, the defendants and their leaders were expelled from the C.I.O. organization; and that defendants are not recognized either by the C.I.O. organization or the American Federation of Labor as labor organizations.
The complaint further alleges that on November 18, 1952, plaintiff received a notice from the Regional Director of the National Labor Relations Board that the International Brotherhood of Electrical Workers, Local 1031, A.F.L., filed a petition for certification as collective bargaining agent of the employees of plaintiff, said Local claiming to represent a majority of the production employees of the plaintiff; that the defendants were notified of the petition of Local 1031; that on December 10, 1952, the petition for certification of Local 1031 came on for hearing before a hearing officer of the National Labor Relations Board pursuant to provisions of section 9 of the Labor-Management Relations Act of 1947, as amended; that thereupon in said proceedings, defendants made a motion to intervene on the basis of a prior collective bargaining agreement with the plaintiff; that said motion was opposed by Local 1031 and by plaintiff on the ground that the intervenor (defendant unions) is a Communist-dominated organization and not in compliance with the affidavit provisions of section 9(h) of the Labor-Management Relations Act of 1947, as amended; that the hearing officer refused to permit plaintiff or Local 1031 to present evidence upon the question of the Communist domination of the intervenor or its compliance with said section 9(h); and that briefs were filed by plaintiff with the National Labor Relations Board in support of its opposition to the motion to intervene.
The complaint further alleges that on February 5, 1953, the National Labor Relations Board directed an election to be held between Local 1031 and the defendant unions as to who was to be the collective bargaining representative of the employees of plaintiff, and held that plaintiff had no right to litigate the questions presented by it; that the provisions of the Labor-Management Relations Act of 1947, as amended, and other applicable federal laws, do not permit an appeal from such an order directing an election; that thereafter an election was held pursuant to the direction of the Board; that in said election defendants received a majority of the ballots cast; and that plaintiff filed objections to the election, which were overruled by the Regional Director.
The complaint further alleges that on April 10, 1953, the National Labor Relations Board certified the defendant International Union of Mine, Mill and Smelter Workers, Local 758, as the designated and selected collective bargaining representative of the plant and warehouse employees of the plaintiff; and that the only method provided by federal law for a review of the propriety of said certification of defendants as the collective bargaining agent would be under section 10 of the Labor-Management Relations Act of 1947, as amended, when a petition is filed pursuant to said section alleging some unfair labor practice, resulting from a refusal to obey and recognize the certification so had and the refusal to bargain with the bargaining agent so certified.
It further alleges that on April 17, 1953, plaintiff, in order to obtain a review of the question of certification, refused to recognize defendant Local Union as the collective bargaining representative of its employees or to bargain with it; that thereupon the defendant Local Union filed a complaint with the Regional Director, charging plaintiff had committed an unfair labor practice by refusing to bargain with it; that plaintiff filed an answer to the complaint with the National Labor Relations Board, in which it denied that the defendant Local Union was a labor organization; that said defendant had not complied with section 9(h) of the Labor-Management Relations Act of 1947, as amended, a copy of which answer is attached to the instant complaint and made an exhibit; that said complaint and answer came on for hearing before the National Labor Relations Board on August 6, 1953; that evidence was introduced upon said hearing; and that said hearing has not been concluded and is presently pending before said Board.
It is also alleged that immediately after the certification of defendants as the bargaining agent, the defendants entered into an illegal conspiracy to disrupt, harm and destroy the business, good will and property of the plaintiff; that in furtherance of said conspiracy the defendants forced, compelled and directed the employees of plaintiff to leave the plant of the plaintiff, ordered a work stoppage of all production and maintenance, established a picket line and denied all trucks the right of ingress and egress to and from the property of plaintiff. Finally, the complaint alleges certain specific instances of violence and intimidation, all in pursuance of said conspiracy.
Defendants' motion to strike the complaint, and the sworn affidavit in support of the opposition to the motion for temporary injunction, in substance alleged all of the proceedings had before the National Labor Relations Board, the certification of defendants as the bargaining agent, and that all of the matters complained of against defendants in plaintiff's complaint were identical with the charges made before the National Labor Relations Board by plaintiff as to the character of the defendant unions and their failure to comply with the National Labor Relations Act to entitle the defendants to certification; that notwithstanding the charges so made before the National Labor Relations Board, the Board, after a hearing, certified the defendant Local as the bargaining agent; and that the precise charges made by plaintiff in the instant complaint are now pending disposition before the National Labor Relations Board, and therefore the court had no jurisdiction. Plaintiff, admittedly, is engaged in interstate commerce business.
Briefly stated, plaintiff's position is that invoking the jurisdiction of the court and the issuing of the temporary injunction is not an interference with the federal agencies governing labor disputes; that the injunction merely protects plaintiff's business and property against an illegal strike called by defendants and violence used by them to carry out their alleged conspiracy, pending the final disposition of the hearing before the National Labor Relations Board; that the sovereignty of the State to protect its citizens and their property is not surrendered to the federal agency under the Taft-Hartley Act or the National Labor Relations Act; and that such sovereign authority of the State may be exercised through the courts by way of injunction, when necessary.
Section 9 of the National Labor Relations Act of 1947, as amended, empowers the National Labor Relations Board to investigate petitions for certification by any organized labor group desiring to be certified as the bargaining representative of the employees, provided such group and its officers shall file with the Secretary of Labor the non-Communist affidavits therein provided and the data called for by that section. That section provides for notice and hearing. In the instant case such a hearing was had, an election was ordered and the certification was made by the Board, following such election, that the defendant Local was the bargaining agent for the employees of plaintiff.
It is true there is no provision for appeal or review of the findings of the Board and the issuance of its certification.
In American Federation of Labor v. National Labor Relations Board, 308 U.S. 401, the Supreme Court pointed out that Congress, in passing the National Labor Relations Act, purposely omitted provision for review of the Board's certification of a bargaining agent under section 9, although the right of review was originally in the Wagner Act. It reviewed the history of the congressional enactments and the debates in ...