as required by Section 10(l) of the Act and Section 101.4 of
the NLRB's Statements of Procedures, Series 7, as amended, and
the court having overruled petitioner's motion to quash the
subpoena and the subpoena duces tecum requiring petitioner to
testify concerning the preliminary investigation alleged in the
petition to have been conducted by him and under his supervision
and to bring with him his files, memoranda, and other papers
bearing upon such investigation and petitioner, on advice of
counsel, declining to produce said files and documents and
declining to testify concerning the conduct of a preliminary
investigation by him and under his supervision and, because of
instructions of his superiors, the NLRB and the General Counsel,
declining to answer the questions of respondents' counsel
concerning same; and counsel for respondents having moved that
the petition for injunctive relief be dismissed for failure of
the Regional Director to comply with said subpoenas and having
further moved that the petition be dismissed as against
respondent MMP for want of evidence that respondent MMP
participated in any of the matters alleged in the petition, and
the Court having heard arguments of counsel and being fully
advised in the premises, makes the following:
Conclusions of Law
1. Conduct by petitioner of a preliminary investigation of the
amended charge as required by Section 10(l) of the Act and
Section 101.4 of the NLRB's Statements of Procedure prior to
filing a petition for injunction based thereon is a condition
precedent to petitioner's right to file a petition and is a
jurisdictional requirement compliance with which respondents are
entitled to challenge and litigate in this proceeding. N.L.R.B.
v. Highland Park Mfg. Co., 341 U.S. 322, 325, 71 S.Ct. 758, 95
L.Ed. 969; Goodman Mfg. Co. v. N.L.R.B., 7 Cir., 234 F.2d 775,
776; Crowell v. Benson, 285 U.S. 22, 54-55, 52 S.Ct. 285, 76
2. Petitioner is not by law entitled to withhold evidence as to
its compliance with said jurisdictional requirement in this
proceeding in which petitioner is invoking the court's aid and
seeking judicial relief. United States ex rel. Touhy v. Ragen, 7
Cir., 180 F.2d 321.
3. Petitioner's refusal to testify and produce the evidence
required by the subpoena deprives respondents of opportunity to
establish a relevant defense, by due process of law.
4. No evidence has been produced connecting respondent MMP with
the events complained of in the petition.
5. For the foregoing reasons, an order should be entered
dismissing the petition for injunctive relief as to all
Supplemental Findings of Fact and Conclusions of Law
On motion of respondents, the Court makes the following
supplemental findings of fact and conclusions of law:
1. Respondent Local 28 is an organization composed exclusively
of persons employed in the capacity of deck officer, i.e.,
master, mate or pilot, aboard vessels navigating rivers in the
middle western United States. Such persons are supervisors within
the meaning of Section 2(11) of the National Labor Relations Act,
29 U.S.C.A. § 152(11).
2. On August 12, 1958, Local 28 began to picket Ingram Company
barges when said barges were present on the premises of Texas
Company for the purpose of compelling Ingram to offer
reinstatement to members of Local 28.
3. In said picketing, Local 28 acted exclusively on its own
behalf and on behalf of its members, and not on behalf of or in a
joint venture with respondent Local 3, respondent International
or any other organization or person.
4. On August 7, 1958, respondent Local 3 terminated its strike
against Ingram and has not thereafter engaged in any picketing of
Ingram. There is no reasonable cause to believe that Local 3
will engage in picketing of Ingram in the foreseeable future.
Upon the foregoing findings, the Court makes the following
conclusions of law:
1. Respondent Local 28 is not, and there is no reasonable cause
to believe that it is, a "labor organization" within the meaning
of the National Labor Relations Act. Local 28, in picketing, did
not act, and there is no reasonable cause to believe that it did
act, as "agent" of any "labor organization" within the meaning of
the National Labor Relations Act. Di Giorgio Fruit Corp. v.
N.L.R.B., 89 U.S.App.D.C. 155, 191 F.2d 642, 646-647, 28 A.L.R.2d
377; A.H. Bull Steamship Co. v. National Marine Engineers'
Beneficial Ass'n, 2 Cir., 250 F.2d 332, 336.
2. The picketing by respondents Local 28 and 3 complained of by
petitioner is primary rather than secondary and is not prohibited
by Section 8(b)(4)(A), 29 U.S.C.A. § 158(b)(4)(A).
3. It would not be just and proper to grant the injunctive
relief requested by petitioner.
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